reverse the board's likelihood of confusion determination if the board committed error in the jack wolfskin and choose generation cases decided just the sheer in the board certainly committed error here just looking at the facts between these cases in the case think the facts are very comparable between the chapel of skin and choose generation cases and certainly your honor is correct that at some level you can say these marks you say the same thing and where they do say the same thing they're descriptive they both describe what intellectual property lawyers do you they take ideas and turn them into assets for their clients that cannot be a basis for confusion this court reiterated that in jack will skin and shoes generation it's some point every market is suggestive can be abstracted to say you're really saying the same thing but that cannot be a basis for the likelihood of confusion and primarily the board in its consideration under the first group on factor never went through that analysis there is no recognition by the is the dissection out of ideas and assets in order to find some similarity between mark and second worse than jack will scan and choose generation is the failure to discount in the analysis any looking at the similarities and dissimilarities mark in fact they only quote the terms asset and idea in the marks there's no quoting of building or transforming the omission of the word isn't a sin applicants mark are turning ideas and assets i will admit that at some level yes you are if you convey that same descriptive commercial impression in fact it's very similar to this court's predecessor case in the  court said well no that's the services issue you're selling these on off the shelf termite killer so the fact that these two marks come close to one another is permissible because they're both treading on that same descriptive commercial impression here where the board took a descriptive commercial impression and used it as the basis for similarity it committed the same error and really what we see in the is your argument that all these marks are really descriptive and shouldn't be trademarked in the first place i don't think so your honor i think marks can simply hew much closer to one another when they have descriptive aspects but you know this court case law says that consumers really do distinguish between mar not as many and it's certainly different than built in there are no building asset marks out there and i think really just is this quarter versus juice generation and jack wolfskin you know the board even credited the finding in their in in their discussion of the fourth to punt factor that wow yes there are all these marks you know there are some that there is a large law firm in new jersey that uses the market transforming ideas into assets there's several other also supposed to take into account when comparing the marks under the first factor the primary factor which says let's discount things that are common or descriptive and not use those as the basis for consideration and in fact in the board opinion here we don't see any discussion of that in the first factor there's no recognition i think you're on a bit tricky if you know even attempt to that you know separate out what is descriptive  this is not really a compound mark you're right your honor it's a long descriptive verb amar where sound in appearance would be much more important in determining how are consumers looking at this and the board doesn't go into any real discussion of sound in a peer aside and to say they're different and that's in that sense you need actual confusion in order to prove likelihood of confusion and you got the answer was no the answer is no your honor the test does go the other way though under  absence of confusion factor if there is opportunity for confusion and we submit on this voluminous record of many many ip practitioners for the better part of a decade in fact the evidence some of us would like to doesn't you using the term transforming ninety years in the assets there's no been no confusion the board properly found that consumers of ip legal services are sophisticated this is not an off the cuff impulse buy  i think this all just reaffirms that there is no likelihood of confusion here and in fact had the board conducted its analysis under the first factor correctly that would have mirrored that finding because they would have said well hey yes at some point we  four years of potential concurrent users before the board decision where there could have been evidence for confusion saving for the decision that after the application yes for years no evidence of actual confusion but moreover we argue this that when you have such a record so many additional third party uses and you also have evidence that a poser takes careful notes of every contact of how people contact him based on his mark and there's been no confusion on any of these third party marks either that is also evidence that there's simply no likelihood of confusion here consumers of intellectual property law simply aren't going to confuse myself and poser based on the slogan  and i really just want to reemphasize that the same analysis that the board under took in these cases and even two generations with a piece there the mark was peace and love and juice which was a little more lengthy like the case here you know the board went through several pages of discussion there really analyzing each term talking about how these marks appeared talking about how they sounded we don't have any of that in the board decision below we have argued that the eighth factor as i just went through lack of actual confusion was was not properly credited but ort and further there was evidence an argument on the thirty ninth and twelfth actors that the board simply didn't even address we don't even know if the board sophisticated person conditions whereas those cases did not and it comes with even more third party usage than shackle skin which you should ration without any actual evidence of confusion neither of those cases were affirmed we asked this evidence in the case extensively the black declarations in testimony in black is an expert in the field on branding about what initial interest confusion is there is so much usage well there is a phrase like this used by ip firms and there isn't a lot of record of likelihood of confusion did to the board use the ro calero attack he could file and to cancel a mark based on that he did not he just stopped from raising at this level that is just everybody simultaneously we have addressed over the since two thousand and four some twelve different people who have attempted to basically infringe on our mark rights and we have to stop them no more and singled out seventeen of those for review as being the most relevant examples of internet sites to have no active page they're meaningless to more  offer legal services they're meaningless five more no longer use the listed phrase even if they ever did for more have or add different phrases in your slogans and the remaining sex all stop is not searchable on the internet there is a evidence and here by kurt thomas who's an expert on internet information the points out that him you will find us and he claims that he did a search beforehand in the trademark office and he didn't find us and yet we have a declaration here by a paralegal who key aspect your initial interest trademark it's a marketing tool is designed to motivate the prospective customer or the client and in the case of the legal services here to motivate the prospect interest trademarks do trying to land a client or a customer is a process some occur quickly at the supermarket some take a long time boeing trying to get a contract from the government and then but the key thing is it all starts without the word business and misner us assets is very similar to building and success in the old version is very simple you have to change into the from in order to invert the word order and an inversion marks are very well recognized in the law as being i mean inversion of marx as well recognized in the law as being infringement i can't have those kind of calls coming in that overwhelms us so using the word idea in there helps the people and it speaks to their need to get the idea out of there in had in the something tangible and if their goal is a business making it into a business asset is part of their own to my goals and there ain't no inventors the don't want to make money out of their ideas so it makes sense we say that the building assets from ideas as an immersion black went into complete detail regarding that several pages and love to have time to read it here i don't but the point is  referred to in our brief you can take a look at the age thirty seven of the brief in there she concluded that there is no significant difference in the sense of the message and i believe mr elie agreed to that in his argument into has to be changed to from in order to reverse the order and the mortgage not go through the impermissible deception it's focused on the pont factors the comparison of the marks and of course you'll notice that he does not argue about comparison of the goods and services second factor because that's tends to show that there is a distinction in the geography he says at one point that the he's on the east coast were on the west coast and yet your eyes on the internet for his evidence those are inconsistent positions he also in order to rebut the ideal initial interest confusion relies on the post contact detailed discussion with the potential client of all of things a the potential client to become an active client and i resign will refer the court to a famous workspace on page forty five of our brief it's only after the contact that this degree of care aspect of a review of trademarks comes into play and the degree of car does not harm does not contradict or should i say does not negate the initial interest actually so as i was saying your honors in this opposition we have the board below spending a whole two paragraphs discussing only two words in the marks just as this court said in juice generation and jack will stain that is impermissible what's even worse here is that you has a lot of evidence of record that the commercial impression of these marks is descriptive that these marks are very very common the three years you've had users and other practitioners and intellectual property using marx with ideas and assets in both orders with no confusion occurring the board should have taken that into account under the first factor h so they're finding their would have been consistent with the rest of the record that there's simply no likelihood of confusion here based on these slogans if there's no further questions some of the cases you ok thank you