to the question of whether alcatraz had proven by a preponderance of the evidence that the that the market lacked acquired distinctiveness and the third thing that i'd like to talk about today is the what i believe is the clear air of the maybe i should be but was it more you supplying your evidence yet this pipeline their evidence and there's some kind of oral argument and then the t v right one final decision yes your honor  there was a summary judgment motion that was of filed by alcatraz and it was denied none of the aspects of the summary judge motion that was fairly early in the meetings and then we take testimony on the peculiar nature of the train much on appeal the proceedings as it's not in a court it's by deposition and once all of the testimony was taken all of the evidence was put and for the record we did have all arguments before a three includes objections to introduction of evidence and everything else that was involved in it as well as this first issue as your honour's i'm sure now the cold war museum case section two outs one is not only entitled to the presumption of illiteracy but to the presumption of acquired distinctiveness the entity that intends to try to cancel the registration has to show by preponderance of the evidence that they have succeeded in showing that the market did not have acquired distinctiveness as of the time that the registration was granted the cold war museum case frankly indicated that the religious christian should remain in effect even if a mark registered has come to be highly descriptive by the time of the  statute that says registration should continue for a mark that by the time of the challenge has come to be highly descriptive and no longer indicative through through period and also maybe something the statute says this is compelled even if it doesn't make sense there is a section of the lanham act i believe it's section fourteen although i wouldn't want to be held to it which gives a five year cut off from the date of registration after which a challenge of this type can no longer be made in this particular case we were not to the five year period and so a challenge based upon the validity and the choir just to give us what the mark was fair game for alcatraz to try to pursue ok so at least during this five year period before maybe whenever the scope of the five year provision is maybe maybe let's assume that that says even if the conditions under which the registration occurred are no longer true maybe we'll keep it but we don't have that so within the five year period why does the statu sensibly say or say at all that our registration for a now highly descriptive mark should remain i don't believe the statute says that your honor but but the combers in case puts the burden on the challenger so the acquired distinctiveness of the registration to demonstrate by a preponderance of the evidence that in fact in no longer does have acquired distinctiveness and that is the crux of the issue here and then the question becomes what evidence can the challenger present in order to try to demonstrate that the the mark no longer house acquired a stick of this and our position is that the  and the lovely skin case which was our supplemental citation from the a sort of a they cited in the after case for that reason it perhaps would be helpful of this court would clarify that issue the the court were considered all of the evidence presented by alcatraz and didn't limit itself to evidence through the date of registration so we believe that that is clear error i'd like to briefly talk also about of the mark on a number of of advertising pieces and all sorts of publications all sorts of things and exhibits four and five were the evidence of the hoarding up tens of thousands of those pieces of advertising copy and trying to presented on their side of the ledger to try to prove a lack of qualified statements which they were obligated to do under the cold war museum case no consumer witnesses their expert witness was not permitted to have their testimony admitted actual consumer perception a total of twenty four lexis nexis articles from a period of twenty eight years less than one a year and sub of which actually referred to what watermark and  so this was a situation in which we believe of the board had properly considered all the evidence that was presented and the records clear that they did have that evidence of record we believe that the surge would be different i see ron i'm going to evidence i know that i've stated in the reply brief where they argued and have been used in fact the pieces of evidence they presented to show that it had been including using a web address annapolis hype and tours dot com to access the web site i mean it was as clear as could be the the third issue and i've discussed it in other arguments today has to do with this business of finding that the mark was highly descriptive and again no witnesses no expert testimony virtually zero documents that were relevant to the issue and i just want to  e while retaining time for a bottle that the lovely skin case is on all fours with our arguments concerning the question of when you're looking to see if there are third party evidence that would go against substantial exclusivity of the use of a mark in that case just as in this case the eighth circuit found that there was insufficient evidence of the pervasiveness of the use and that's the case thousands of pieces there are thousands of documents in this record your honour's and i don't recall a single page in which alcatraz explained the pervasiveness of use not a single document on how many pieces of determination based on the substantial evidence of record they first determined that alcatraz did need a say in the decision they say in accordance with cold war museum the burden shifts to respond to now prove think ultimately what they're referring to though is the is the production rules are two different things or they are yes i believe that they use the word bargain is semantics and not not trying to make that legal distinction between i didn't quite see anything in there that really highlighted for me to be declaring after a lot of analysis we're not buying this market narrative but wow is this close to being generic analysis where they determined that it was there is a fine line i think between being highly descriptive and being generic and i think in making the determination that in looking at the evidence they looked at for example see the newspaper sampling of newspaper articles and third party publications using the napoles tourism variations on descriptively i think based on such evidence that the dictionary definitions that were supported the testimony of the witness competitors these users result in at best a mixed record of use of the phrase both generically and as part of what appear to be trademarks of trade names this ambiguous evidence that's failed to establish that the primary believe that their opinion and based on if you've looked at the volume of records that they clearly and a lot of their looking at the evidence was in the end the initial part of the period where they go through all the objections raised to the evidence by watermark and they are they i think discussed more i think it was first half of the opinion discussed all the evidence and i think that was really a discussion of the evidence that was in more summarized by the board is decisions under the generic medicine descriptives as argument but regardless based on this court's decision and yamaha in the cold war museum's descriptives this is not an issue in this case a to have registration is presumed descriptive so that is not an issue in th should case and the board did say that in their opinion so i think they did look at evidence the evidence of record that to establish that advertised in the it's kind of fish a case of rebutting the presumption of acquired distinctive requires that essentially the mark of a descriptive mark has to have become a going to find the sources in a fire in the mind of the purchasing public and the statute of leave this question was asked earlier mr siegel the is nothing in the statute congress is not in the statute of the u s statute of the trademark act congress put in nothing in there about what type of evidence was required to establish a part distinctive and what they did is they decided to leave the amount of such evidence necessary up and to the u s p t o and to the court to decide because they realize the circumstances of each case would differ and there is a long history of things of cases from the from the and i think what alcatraz did is they use the evidence showing lack of usage to help establish a prime basic case and when did establish is prime a face the case then what alcatraz diaz was they looked at the purchasing public and they did not do so so the only record of evidence we have from a tour guide who interacted with the purchasing public is the testimony of mr me as well as the tour guide new rule which was the employee manual for the tour guides on how to present the tours and interact with the public and that was devoid of any reference to the mark annapolis tours and i think as the as the board failed that is circumstantial evidence of consumer perception because at the end of the day the issue of acquired distinctiveness is an issue of fact and the issue of fact is whether the market has is perceived by the purchasing public as a source adenovirus for the quickly i do not believe there's anything in the case for the statute that requires that the crime of facia evidence all be dated prior to the registration date i think that doing so would be setting a precedent that a mark actually said if it was descriptive either at the time of legislation it could not have registered it is to have mark but also if at the time is being challenge it does not have the represent edge acquired distinctiveness it still has to be cancelled because and even the time it is not a valid trademark under two f of the trademark act but regardless the evidence in this case both dated prior to two since the registration date and after is more from that we find problematic that documentary evidence upon which respondent bases its claim of continuous use responded relies heavily on its trial exhibits to that five which consist of printouts from the websites referenced above purporting to show service mark usage and promotion of its mark and apple stores because these materials were printed from the internet on june eleventh two thousand and eleven they have no prob of value in showing continuous use prior to that date and minimal value regarding responders promotional efforts there can be no say that we said we made an argument in that regard in our reply brief which i think is thorough and an robots that issue thoroughly i know my time is up yes and i just want to close by saying does we ask that this court