last case to be argued this morning has fourteen dash one four nine seven this is our post international limited pursuit of united postal service please the court i would like to start with the following scenario when you receive a letter for another hard copy  in the hope point of your using the term registered email is to demonstrate that what you're doing is an extension of what the postal with the post up been doing for over one hundred fifty years not an extension of what they're doing providing but the but that's how consumers look at anything when you add the little in front of some preexisting service well it's the understanding  common sense that what you've done is taken a brick and mortar service and moved it into cyberspace right and now we've had registered mail going on for a long time and now you have registered e mail correct and if the postal service were in that space in any manner that's not just the cyber world it's our tonic message transmission world that's what the application also says after a lot of the specific terms of the application and the analogy i would i would give you know the kind of revolution that we're talking about from hard copy to compete with the horse delivery services and i said i can provide the same level of service same quality in an entirely different way that's and i take a term let's say there are there their product was called we call it the pony delivery service and if i changed it to a pony a for automotive and no one had anything reasonable leads it was the same company because horse not machines that's not infringement it's not likely because you seems to me the questionable part of the questionable premise t your example is the no one would have any reason to believe that the sec if for example i had the the a buggy service and it was bright and said it was really well known all around the country that prices bug is there better than everybody else's budget and you came along and decided to start a an automobile service to do the same kind of delivery and you call that the a bryson people are going to assume that this is their license by somehow affiliated with bryson the size of the chance of that under the circumstances and that's where you have likelihood of confusion that's a problem i think that you have in this case that people may be wrong in thinking that the postal service is now into this or some up lecturing this but that's an assumption that will flow from the use of the term registered mail to me that's the problem in that i see with your case well but the only evidence of potential confusion in this context is that there is an a and what i mean by that is first of all postal service is forbidden legally forbidden from entering into that space from doing that but if you ask a thousand people on the street or somewhere other than washington where you'd find a hundred lawyers out of that thousand if you asked a thousand people on the street is the postal service from then by law from engaging in electronic communication  services i'm guessing you wouldn't find three that would know the answer but if you ask the same a thousand people supposed to service provide the commercial delivery l a tronic messages you i don't think you'd find a single person who'd say yes except the because adding the to mail is transformative it's not an end and it's not even like all the other these events why did you use the term registered e mail you could done something like secure his mail or our post e mail well i'm like that i think why did you go with registered yet be cause the public knows office that's what you get and you have to do everything physically to be done that they don't send those by e mail the final step in the process if you want to send a registered e mail and get that proof of delivery via e mail you have to physically take yourself to the post office you have to deliver to a postal service employees physical documents if you have to physically pay you have to physically fill out the form postal service has to physically transport the document they have to get the various registration signatures physically and only then will they transmit an e mail to you saying it's been delivered so no one who uses registered mail would be confused no one who does it doesn't have the shade of blue that we all associate every mail truck and every mailbox in the letter carriers all have that same shade of blue blue so it doesn't have any indication of being with the postal service the whole point of the postal service argument is the cause there is there's one letter difference consumers are likely to be confused and that one letter difference is  because it changes the word male to e mail and changing the word male to email not only is it a recognized word you look in the dictionaries will find the male all the other words e file word e mail whether it says a register or any other term that might be some of the postal service is not going to be and we're touching on the first of the depart factors of the word found the second one of similarity of services the board ignore the application which requires them to consider the application itself which says delivery of messages to transmit the service of the pet's email but you know this is registered email and this is more about the transmission of mail electronically in a secure way with proof of delivery right transmission of mail now it tronic so i mean that's why i think the trademark board was trying to say the purpose of your service in the post office is registered mail service ultimate lea pretty similar because it's all about transporting some kind of message or document with security and proof of delivery yes but that all ignores the application which also limits it to tronic message transmission which the postal service doesn't do if you want to send an email to someone what matter what kinds of bells and whistles you want to put on it you're not going to go to u s p s dot com in order to do that that's the distinction you're not going to go to a postal service site you're not going to think there's any way you can transmit an electronic message using the postal service that's not i mean that's always of the heart of our argument the distinction between party registrations but the fact that other companies might have registered marks for us in both hard copy in physical and electronic fields doesn't prove that they're in commercial use doesn't prove that those products that anyone knows about those probably this court's precedent on third party registration evidence for purposes of likelihood of confusion seems to me uniform and against what the board did what the board said was well it shows that these kinds of separation between electronic communications and hard copy communications such that a reasonable consumer would never be confused and in one sense our post is right no one is ever going to confus e mail for a hardcopy piece of mail but that is not the fundamental inquiry under the lanham act regarding likelihood of confusion lanham act is not concerned with confusion of goods it's concerned with confusion  and so the question is can two different goods made even really different goods be perceived by the consumers in their overall commercial impression as they encounter them in the market and emanating from the same brand and we in answer to judge jones question about why did our ports pick this name rather than another name our post told the postal service that the reason that it was picking this name the reason it wanted registered email rather than security e mail or post email was because it wanted to trade on the public trust of the postal service brand and to do so not by calling it u s p s email but by calling it registered email because our post thought the word register in the public mind meant postal service i trust the postal service it's secure that's the quintessential example of source confusion and that's the factual findings that the board made and really this is a case about factual findings because the board looked at exactly the same information an argument that you've been hearing about today and the board said we think the market is for transmitting secure messages that people have a choice between doing it electronically doing in hardcopy maybe doing it in both and that this is all actually directed at the same market and so we're going to make a factual finding of likelihood and confusion based on the evidence that these are if not identical in at least overlapping markets and of course and this is a sample evidence standard if any reasonable person could reach that conclusion from the evidence and it  to be a certain you explain the usage of the third party registration in this case apparently you know we have case law that says you're not supposed to rely on those third party registrations for prove actual use and yet you were citing something else that says well maybe they can't be used for actual use but they can still somehow be used to be probative to prove something that's different than actually used but i guess what i'm trying to say is i'm a little confused on how the law works against plaintiffs really and the law is not quite as black and white as third party registrations are never usable there are multiple cases in which the board and this court have mocked at evidence of what third parties do in the same market to tell us something about how consumers perceive good right what they're was what does that suffix need does that like each of us mean the virtual version of brick and mortar the case was about whether adding tronic or tronics at the end of a word indicates this is the electronic  something and in that case this court's predecessor said that third party registrations provide some evidence that the common understanding of those suffixes is electronic they looked at a bunch of registrations that used the same suff products and they analogize to looking at a dictionary it's important to recognize though that there is not only evidence in this record of third party registration being in those markets there is evidence of the postal service doing things that relate to the market for electronic message transmission in fact exactly the same way our post does you heard this morning that the postal service you'd never think you were getting e mail from the postal service because the postal service doesn't send e mail our post doesn't send e mail either our post big product advantage and you'll find this in the record appendix volume one of page four twenty is that it provides an add on that adds on to anybody's email account so you can have a yahoo account you can avail accounts you can sign up with our post and get them to essentially postmark your message on its way through cyberspace so that you can get a receipt and party in the other and can tell it was an alter well the postal service electronic postmark service can be used in exactly the same way so we have that record evidence not a third party registration that the postal service operates in this manner there's pretty registrations are relevant they're only for a fairly limited purpose of showing that thirty some odd other people don't think these are two markets because they tried to register something to use it in those markets it's a small factor it's not the only evidence supporting the conclusion that these are if not the same then at least with regard to the cross appeal i'm happy to discuss the same factor the court would like to do so the importance there of course is that it's just an additional factor in support of informants but i would like there were not really an appropriate is with regard to the registered receipt and return receipt marks and that's the descript that's an issue in that regard i post what are close register view that there was a likelihood of confusion with those marks not treatment so we are trying to assert that they are trying to assert that they've trademarked it just by adding punctuation around the initial r and that has two problems one is the case law and here i'm thinking  of ways in which you can use their service and so that the functionality case law that says someone is knowledgeable about your service will immediately see that and think of that as distinctive of the functionality of your and it's certainly it's even part of their portion of the market by virtue of their more uncertain terms it's one certainly really it's the role of punctuation in making a otherwise descriptive mark distinctive that's so much  i'd supposed yahoo would still object if somebody came up with yahoo question mark as opposed to yahoo exclamation points but i would think at some point punctuation starts to make a mark people put on their part and what they tried to register was a mark for three dash the euro apostrophe at which the court looked at and said somebody is going to look at that face rio's or thirty's both of which are ways refer to the thirty inch car real rims with which you intend to use this just a punctuation that doesn't change the way that we would pronounce it is not sufficient to reach the level of that's right but  but we would speak it that way so it doesn't that doesn't square with the vanilla gorilla analysis of that mark and then you run right into functionality which is the only thing that that distinctive punctuation does it's not fanciful punctuation it's functional punctuation and the functionality case law says is someone who's familiar with your product would immediately have called to mind the functionality of your product by the mark and that doesn't solve here need for distanc about they could have the functionality that would be performed they could set it up so that the functionality would be performed by for example asterisks are asked they could and you'd have i guess the same objection if in fact it was their mark and that was their function yes but i guess the point is that a registration of this particular receipt with that are surrounded by parentheses it wouldn't exclude someone else from doing something like a turn receipt with i don't know printed fees around the tea at the end of receipt or preclude the used postal service from continuing to use the terms registered receipt and returned  branding their products with that mark as part of the the brand that takes it out of the merely describe category and the functionality they could you explain the what is disclaimer mean i think i understand it by just one of stan your understanding of what happens when what is the trademark african giving up and what is the public get when a trademark applicant does a disclaimer what the trademark applicant gives up is the right to claim that anything other than the exact formulation as shown in the application is what they're claiming to be protected so so that someone else in some consumer would not consumer competitor with using return receipt exclamation point you wouldn't be would you be able to go after someone like that with your return receipt registration with was around the yard i don't think so but if they did perenna our clothes pron return receipt and that of the exclamation point perhaps we would because then you get into how distinctive it is and how much does the exclamation point how you know how significant that would be so without the prendes absolutely yes what bothers me about this disclaimer practice is could someone get  registration for the where disneyland with the deed surround by premises and then disclaim disneyland and say now i want to get you know to sell sneakers i mean that that makes sense and i'm sure the walt disney company would car and the legal service and i don't remember which one was first but once to the other and the ultimate conclusion was because the one couldn't there was no basis by which the former owner would be moving into the business of the new owner no one would be considered that's part of argument here a likelihood of confusion postal service you know council mentioned there's some news article about u s p s in an e mail type of service yes before two thousand and six it could have and it made all sorts of efforts to go into that they called them dubious for us and said no one knows the postal service is even in this business we're trying to be in this business and that's so our in our view a significant reason why no if you sell something that's called first class e mail is anyone going to be confused that that's a postal service well it is the e mail is transformative it changes it no it's not just saying it's the alternative version but it's the version that the postal service doesn't give you that's the poet and that's why there's no likelihood of is say these thirty party registration shows i'm sorry i meant you had anything really quick to say about ok prosecutor it's in our brief ok thank you thank you for just one point and that is as set forth at length in our brief we disagree with mr mr penn state characterization of what the postal service is inherent allowed to do in the electronic realm and so does you just talk about the cross