decision unsupported by substantial evidence as matter of fact to uphold this decision this court would have to abandon some very well established principles regarding priority or right in priority use and in  n at least briefly with this unincorporated group of association of that in areas that ultimately would incorporate themselves using her misappropriated trade name but when she first met with them they were just hide the merits and prior to her being with them for five years she had already been using the name in commerce and that's really the grabbing of our claim in this case that factual basis for that conclusion completely wrong besides not paying any attention or a disregarding all the evidence concerning priority of use which i think really ends the analysis but with respect to what your honor is referring to all of that those conclusions by the board were based upon a series of rodeos factual findings wasn't it was its finding of of  thirteen there's a series of exemplar letters that she used to solicit funds and in which the equine excellence excellence initiative was included and she testified that she had   but she had no permanent employees she had no dedicated business center or an office she had part time students a she conducted business out of her home but this court has has consistently maintained that might does not make right it doesn't matter how big her business organization is the only thing that's important is that she she is a stablished the the the mark by using it in congress and that she can establish years before her association who prefer association with this group began that only lasted for eighteen months it was a total of three meetings which i'm she was unable to participate in but it lasted eighteen months three meetings and during that entire time nothing happened one of the erroneous conclusions of the board here is that dr lines participated in some way in the perpetration of this petition but as i stated in the briefs they got that completely wrong like by confusing this informal working group with an organization of twenty seven better than ariens the official organizing committee that would not come along until two thousand and eight four years after that after her association a brief association with this group of five americans that ended with respect to the five  happened there were three meetings there was no petition the only thing that happened there was a letter of intent sent to the a v m a expressing an intention to later file a petition but as this court has consistently maintained an expression of intent is not sufficient to establish ownership rights and while she was doing this before her association during her after association or association her so she can she continued to fundraise she continued to conduct  seminars and clinical education programs she continued to certify students maintained websites owned domain names and successfully raise more than two million dollars that's in my book of use in congress before she had ever met these people she had actually raised more than five hundred ten thousand dollars in support for donations made to her organization in the name of her mark there but during that entire period of time they did nothing there was no use in commerce there was no publications for education programs no fund raising all of the things that she had been doing for fifteen years up until what is that like apples and oranges or i guess well yes i think it is apples and oranges she does not certified that areas in the same way that this college does which works  under the auspices of the a b a major one of the certification programs she she certified that in areas and pair up paraprofessionals in the sport horse industry who had taken her examination and still nevertheless conducting his educational programs and job training personnel one of the distinctions for instance between her educational programs and the colleges that she did certified  boards sometimes they call themselves colleges sometimes they don't use college or board there is no magic with the words american college that enables the a v m a to reserve that exclusively to the use  focusing on kind of the point you're making right now which is that it's not just used and it's not you have to show that there's this thing in your meaning and it's connected to your client's business  i think that that decision below was that had not been established yet so how do you show how do you respond to that that is one of the more troubling parts of the decision below because what it offered the decision should not be based upon who was first to use but on the when it came to a supplemental a name on the side of a mark on the supplemental register that happens to secondary meaning but the and what just what reason i say it's troubling is because the board decided that prior prior appropriation continuous use for twenty years two million dollars in public support the public decision are so riddled with errors then substantial there isn't a lack of substantial evidence in this case and what i've tried to do in this brief is take you through almost the entire alphabet pointing out the factual errors that the board clunking thank you thank your army please the court my name is david kluft i represent the howie the american college of veterinary sports medicine and rehabilitation the college is a veterinary specialty organization that educates and certifies professionals that have already achieved a veterinary degree in an additional specialty in this case specifically the treatment of high performance in athletic animals it's one part to lions claimed he used the name for  calm the d t b found that she did not use the name first in commerce the evidence that she has of her use of the name prior to her association with my client is evidence of private correspondence discussing a project that she hopes one day to complete the testimony by dr lyons is that her intention at the time was that in adopting this name some day she would seek recognition for an organised ation called the american college of veterinary sports medicine rehabilitation by the a v m a as a veterinary specialty organization that is what she proceeded to do you see in the act one excellence initiative document from  hundred six which is a single spaced typewritten document with no logos no dormant and no evidence on record of to whom it was sent except a couple affidavit suggesting that it was from some people saying that at some  unspecified point in time they received it but i'm getting away from the point the point is that the evidence is the doctor alliance intention and that's one of the ownership factors that g t a v looked at what the expectations of the parties were the expectation of dr once as evidenced by the record was that in using this name and we assume for purposes of the proceedings below that she was the first person to write it down on paper that's the nature of organizations whenever you have an organization probably somebody wrote a person wrote the name down on paper before the organization was founded and started to operate so that's perfectly to be accepted so we accept it for purposes below that she was the first person to write it on paper but why did she write it on paper when she testified that the idea was she was working towards a goal and that goal was recognition of this specialty by the american veterinary medical association which is the premier veterinary organization and in the country her further actions show after she got together with my client show additional in the ship that she intended for my client the american college of veterinary sports medicine rehabilitation to own the mark she called the a v m a and said how do i start a veterinary specialty organization called the american college of veterinary sports medicine and rehabilitation and they said well you can't do it alone you have and this is on this is on the record in the testimony of dr saban she called sorry not in  testimony of dr lyons she called the a v m a and they older you need at least six veterinarians and you're an echoing veterinarian so some of them have to be canine because that's going to be an important part and you have to form an organizing committee that's what she did she formed the organizing committee when she formed the organizing committee is the t t p found one of the first steps is to send a letter of intent which is a letter that has all the names and resumes of the organizing committee plus their intention to fight to found a new specialty organization that's what they did she sent a letter in with the other five veterinarians and she testified that she consented to that to having that sent in that said you know i  dr hillary clinton all these doctors we together want to form an organization called the american college of veterinary sports medicine and real spring sport the american college of veterinary sports medicine rehabilitation i'm sorry runners it's hard to get through that many times  and we wanted to seek recognition recognition for that organization from the a v m a she testified as the t g v found that she consented to that to having her name in that letter and to that letter using that name so even if she had in her mind the idea that this was hers or somehow she owned it that's not what the evidence the manifest evidence on the record shows after the letter of intent was accepted  honour's she continued to act on behalf of the organization she was tast all the doctors were tasked with different tasks in starting to move towards the next step in the process with which was a petition she was tasked with drafting the first draft of the bylaws and here's me in order to do that she phoned dr elizabeth saving whose testimony is on the record in this case and dr sabin testified that she got a call from the appellant and the palin said that i am dr she lyons i'm calling on behalf of the american college of veterinary sports medicine rehabilitation which is and i on the organizing committee seeking recognition from the a v m a please give me a copy of the bylaws and that's that's how that happened so you see on the record evidence of the party's intent that this would be the name of an organization and of course the the other evidence that your honor pointed to is that there's an over fifty  history of a naming convention here which is that the very first veterinary specialty organization was the american college of veterinary pathologists founded in one nine hundred fifty and since then there's been about twenty or so different veterinary specialty organizations recognized by the a v m a all of them i'm sorry all of them have similar names over half of them start with american college of veterinary so that's where the teaching be found that the very name american college of veterinary sports medicine it's descriptive and as i evidence myself difficult to for a non veterinarian to get through but the issue here is not the descriptive ness it's not even secondary meaning it's ownership and the ownership factors are the expectations of the parties facing events involving dr lyons before she was dismissed from the college and those events are telling of what was actually happening in the whenever she had a public event before she was dismissed the first event on the record is this conference in one thousand nine hundred nine when she met dr gillette and by the way dr gillette who was in the who was who with dr lyons was that were the original two members stayed on and became the chair and then the first president of the organization so the suggestion that there's not a continuity there is just not borne out by the record when she met dr juliet at this conference in oregon we have doctors let's testimony on the record and we also have the catalog from the conference on the record and you can see from those two pieces of evidence that dr klein's did not hold herself out as i have the separate organization called the american college of veterinary sports medicine rehabilitation that's mine to her it says i'm dr shu alliance from homecoming farm and dr gillette also testified that when she introduced himself herself to him with for the purpose of finding a canine veterinarian partner for this organization she also represented herself not as from an existing organization but from homecoming farms in the ideas to get together and found this organization the second event that has is on the record that shows any kind of public event involving the appellant is in two thousand and four and that is the event that happened in cape cod there was a talk at which the appellant talked about certain and veterinarian issues i'm sorry i'm looking for the page in my notes so and i'm not finding them but five six i find if that sounds that sounds right there was there was an event in which in cape cod in which she gave  talk and raise money and act that she was raising money in part for what she called the american college of veterinary sports medicine and rehabilitation so the question then is well ok which one did she mean did she mean that this was the separate organization or does this mean my client well we have that answer because at in on the record she testified in the proceeding below at appendix seven one four i'm sorry this is not the proceeding will i correct myself in the district of massachusetts proceeding she made a different argument which is that at that event she was raising money for my client to pay for secretarial services that were necessary to go through the a v m a process so clearly even when the doctor once faced the public in any way it was if at all as a representative of my client now it turns out that my client didn't want her to be fundraising and that's one of the reasons that she was dismissed from the organization but that issue is not engaged in what judge young there called a case stated trial where which is similar to the accelerated case resolution proceeding at the t t p where the summary judgment paper serves as the trial record mr lyons and i then did oral arguments in front of judge john and then he issued an opinion in two thousand and fourteen the there were multiple issues in that case but on the main the main issue was whether or not to refuse dr lyons attempt to register the mark on the principle register so not the registration issue here that was the that was in the case but the principle issue was that was the principle register mark and then also a copyright claim and also a trademark infringement claim so my client prevailed on all of the claims except the judge didn't act on the supplemental register mark and the parties entered into frankly his opinion was somewhat ambiguous on the supplemental registry marks of the parties entered into a settlement agreement which stated that judge jones opinion was not preclude either way as to supplemental marking the parties would proceed to the t t p and that's what they did i as i said i would like to make sure i correct one thing for the record in the briefs although mr lyons did mention it today there is a suggestion that the letter of intent in two thousand and three was some had somehow expired because it petition so in other words the organizing committee does a letter of intent and once a letter of ten is accepted by the a v m a they then go on to a full petition and there's a suggestion in the brief a couple times that the letter of intent expires because it because the petition wasn't filed within four years now i'm not sure if he's right about that i'm not sure where that gets him but but he's not right the rule that he's citing which is an appendix one forty nine is the june two thousand and eleven rule which does indeed include a four year limitation but the parties at the time were operating under a under the two thousand and three rules of the a v m a because this was two thousand and three and that's at appendix six zero five specifically the bottom of six thirteen and the top of six fourteen where you'll see that the four your limitation is not there so even by the a v amazed i'm not sure it would matter for favor of the college the t t p look to who the relevant public is going to expect to stand behind the services that are offered in association with mark and it's clear that my client has over one hundred forty veterinarians that are out there offering services under the mark and the very name itself as they said also implies that there's an association with the a v m a and that this is a going concern and a veterinary specialty organization importantly we don't have to speculate about who the public will look to to stand behind the mark because it's on the record when the cape cod status and your client's use of the mark right now mike my client been using the mark i'm sorry your honor you talk about use or registration use my client uses the mark on his web page it uses the mark to certify veterinarians it uses the market in conjunction with annual client was made up of purely veterinarians they did not think to register a market first in two thousand and four and when dr lyons was dismissed from the organization she reassured mark on supplemental register so wasn't  not i think about how i'm doing and i could be wrong i mean that's a matter of public record but i the only reason i know that is when sometimes i'm looking at my clients mark i type in the wrong thing and come the other marks but there are a few of them on there and i know one of them is the american college of veterinary surgeons which is another a v m a recognized veterinary specialty organization with which my client conducts annual conference your honor documentation on that goes well so tell me one does she have a ph d you know and that's a that's a common appellation and a common mistake that's made with respect to designating veterinarians in areas for instance and in england  was an error which may have an innocent cause but it had nothing to do with her misrepresenting her or her credentials it's something that's commonly done with that ariens and on her testimony about her her certifications she was one of the first to go through that program what was the program where is it laid down because it doesn't appear in the record it's not in the record and there were no materials that we could obtain because it happened so long ago in order to well document the program all they have is her testimony but she she testified very clearly and the evidence is in the record in terms of how her veterinarian methodology was developed it's all based upon the human model which is the science you have a couple of folks move on the last thing i would say and i would only ask  the court to look at beal letters and correspondence beginning on seventeen o seven and going through eight hundred forty two which of the correspondence involving fund raising that was done long before dr alliance ever met