on what legal basis can we take your dish from notice of the teaching of american history is there a particular book or or academic reference or something to which you're referring  they're not part of the evidence for this case the similarity of the markets what's interesting about this case is that generally speaking with women examiner will one of the points you make about that is that the african american population court is that you know the standard with regards to the general public in terms of what the general public what we believe that due to the shifting demographics in the country and how the different based upon their experiences that they're from perceptions with regards to marker also be different as well but you can limit the quite right well your honor we actually thought about the judge your honor we thought about that we limiting the id which is what the piece you have suggested we do with regards to african americans we think that is impractical every think is because you can't necessarily control who's going to purchase our democracy united states we believe is our contention that once in black and white which means everything and your same color but it could be the same colors it could be the same colors although another point of can basically use use color without any limitation whatsoever the p t o has emphasized that in imitation we disagree that point we do believe that color can be use but using diaspora the displacement of african people saw the country particularly north or south america in addition to this whole notion of repatriation which was a pretty big movement early in the twentieth century you sure that what you're asking for we actually can't give you this really as a panel not only has this court already held many times that the entire consuming public is the source for assessing the meaning behind a mark of the consumer public which is not limited to african americans or white people or anything else but every court in the country every regional circuit in the country has similarly adopted that same standard the entire consuming public when you haven't really needed the class of customers for your goods so what you're asking this panel to do is to look at it from the perspective of a particular racial group which would put us at odds with our own circuit precedent as well as the circuit precedent of every circuit in the country so i hope you recognize that even if there was merit to what you're saying this panel can't possibly give you that relief you're only possible relief would be in bank action and then you'd be  battle because you'd be telling us to adopt a standard that is different than the standard in every regional circuit in the country on place to similar cases just more of us at some point the point with regards to that standard we don't rest our position soley on that in the morning your honor may place the point that you want to clarify to begin that there is nothing in the tyranny p or that the way that the office considers design marks that would allow us to construe a mark like the registered mark or any design mark that doesn't claim color to use color in a way that creates a new design element that is not present in the mark that would be a different mark but there is no restriction and we can imagine many schemes of color being used in this black and white drawing here in the registered mark that would include red black and green the same colors that are in the all construct i mean this isn't even a question that we can the answer right because didn't our data packaging the piece from the c c p a already answer this question so even if we were to disagree with that idea we'd have to take it in that this panel wouldn't be able to overrule the data package in case correct that's correct actually yes and here what the basis of the at the registered mark only in a black and white form if you did you give it to me at all for your color i didn't bring one with me but if we visualize the west coast of the united states i want to read the africa portion in black the east coast in green and still not even close one of the marks is africa within the us the other is the us within africa the if we're going to change the one portions of reading green and not the black portion in the actually already registered mark then you're changing the left and the right not the up and down so i mean there are all kinds of flags out there that use the same three colors right some of them using vertically some of music horizontally i don't get i'm confused your honor here it's about the average recollection side by side comparison we're not dissecting so if you see an assured map of africa in the united states there center online there vertically oriented i see this map and gosh it's in the colors of the pan african flag assuming that people understand that those are the colors that it represents right i mean there's no evidence in this record of the historical context or that those are the colors but even if we accept that to be so the same the general impression is conveyed when you see those colors red black and green and with africa europe and the united states to me the mark seeking registration by virtue of having the u s contained within africa it actually tells me even i don't know what the message is that that mark is trying to convey it's trying to convey a message about africa and the united states the one on the right doesn't necessarily have by any stretch convey that same message especially when the one of the left breaks up you know the top in the bottom of the colors and stuff where the one on the right i don't know it doesn't to me i don't have any clue what the one on the right supposed to convey and it doesn't jump out to me as indicating that it's attempting to convey any kind of political message whereas the one of the left actually does i look at the want to left i think there's a political message in there even if i don't know what it is that they're attempting to convey something about their political views where as one writes two countries superimposed on top each other you can be presented in different it can be only whatever it can be presented in different colors it's not limited to any arrays that really the only limitation is if you create some new design element from color that's not in compass here but you could have  identical to the design mark on the left it can't look identical because that has a distinct design element of the united states inside of it and but we you don't even need to go there i think the scope is broad enough to a certainly under this court's precedent the arranger the arrangement of colors that we have to consider divine could be on the mark we're dividing the united states into red white and blue being new design element you know using our vertical lines that is you know you have three walls or would just be covert it could be i mean i think if you color the segments that existed there those three regions and color that's not a new  element but if you put you know a distinct pattern in there maybe now you're having a new design element that isn't actually part of this mark now that the registered mark owner can use it in any way they want but would the scope of the registration cover that design  no and i think if they came in to amend that you know the registered marketer came in to amend their registration to put a design exactly like the registered mark on or the p t o would say no because there's a map of the united states in it now that wasn't there in your original mark  but the ways that this registered mark can be displayed if it's in the same colors of the pan african flag to the average consumer who sees these marks at a distance and you know specially in time they're going to have the same idea of oh it's africa in the united states and this pan african flag and that's the kind of similarity and similar commercial impression that we're concerned about here particularly where we have identical goods and the consumers in channels and trade are the same and these are low cost items this is you know a classic case of where confusion is likely and if there's any to help on the issue of likelihood of confusion it does not get resolved in favor of an applicant it gets resolved in favor of the re within africa we have one on the right if the us is the dominant in africa has been consumed by the us exactly i don't know but the problem for you is i don't get to make this decision and you have to find in your favor i'll tell you right now the problem is substantial evidence is my standard of view for the similarity of them are and i'm struggling i mean the examiner did this divorced from sort of the pictures although all the elements he explained makes it sound priest persuasive both marks involve  harder for me i think if i got to decide this can help though i find in their favor i don't get to i have to say is there no evidence that supports what the examiner decided and that's harder for me because you know what i certainly don't want to professor gates and books and have or a couple of them have some background that could add weight to your kids but it's not there