refers to i believe it's a big thirteen with words decision the board made a series of factual findings as to when the march was used west and when there was an intent to resume use  are willing to accept december thirty first of that year as the lead so that's the that's the starting point for the three years as far as you're concerned you are think that's the only conclusion based on the words of the board's findings of fact i'm just trying to get your position so the answer is yes that's the start of justice and the point is two thousand four is that when we all agree that there was activity by mattel that is would constitute the actual  any disagreeing on that because that they're both dates that get thrown around december thirty first nine hundred ninety five ninety two are and so forth licensees of tycho and so but but you're saying you're willing to to load with the cinema thirty first one thousand nine hundred six for purposes of our middle of your concern we have extensive negotiations over this mark why isn't that significant with me here i would disagree with your characterization of extensively goshi asians there are two reasons why that is is not a sufficient showing to buy the pride of fish showing of the why did the negotiations fail your honor there is testimony but not the evidence the record evidence required by this court's decisions in testimony even if testimony is accepted here as a substitute for the evidence required by this court's decision when you see evidence and testimony is normally regarded the kind of that you mean documentary evidence that's exactly what i mean iraq and that is what the burden of production you question whether the cohesion happened you or i do because the if you don't think it happened at all you think they're manufacturing and i don't know whether it did or not because the testimony is he can't know you want a letter in other words if there was a telephone conversation between k b and mattel you know there was a through our telephone conversation that wouldn't be good enough you think under the under the proper standards to constitute evidence  substantial evidence to support their decision why isn't this part of the evidence you go to the answer is the answer is twofold the first is that this was the entirely passive receipt of an overture from a third party and well but the court we all know that the reason they declined to enter into some agreement is because they intend to use the mark that's the testimony that we get and the board relies on if we accept that evidence is reliable does that in your case because of course it falls right in the middle of the period you want to  they were acquiring tyco there was a period of corporate unrest that delayed some of their plans clearly we have a ninety eight and in ten we continue to use your honor has referred to plans those plans are not to lead out anywhere in the record there is for example no testimony of a timetable there's no testimony of a business plan even the testimony of the court except the hearsay testimony and the other in the absence of the record evidence what are those are your case really turns on whether we accept that evidence or no your honor it is not the court can accept that evidence but it is not hard not as a bill for the same reasons that the very same argument was not accepted transaction took place in february of one nine hundred ninety seven that was what the board found that was what that submission to which you are first says indeed on page seven of the tells brief patel of knowledge is that the transaction took place in concrete plans which your honor is referring to is not something that reflects that intent it is an assignment document of over three hundred forty registrations it is not evidence that  t m has attacked the standard review it gave the very standard in which the war made its decision which was the totality of the circumstances standard c d n has said that we've made that standard up out of support that if you're going to talk about the balance of the interest between mattel and between c d s one has to look at the interest on both sides were metallic here mattel had acquired the third largest toy company in the world tyco and one of the three principal properties that identified in acquiring tyco was the crash dummies franchise along with matchbox toys and the radio control there was obviously a very valuable property that had residual goodwill from that fifty million dollars of sales in its first year to one hundred twenty million dollars worldwide franchise b toys and this is not a case like i t c is there any document three evidence to corroborate that the evidence is wholly the testimony of mr franken counsel repeatedly said that that testimony was just hearsay the problem with characterizing that evidence as hearsay because they never objected to mr frank's testimony as hearsay during his testimony no deposition where that could have been could been addressed they never objected to his testimony as hearsay in their trial brief they never objected to his testimony as hearsay below at all they would waive the hearsay objection they did our work object on the basis of competence the judge overruled that objection and they did not renew that competence objection here so they would waive their competence objection there is no objection to mr frantz testimony that's properly before this court and mr franks testimony about the k b toys analysis stands on rebuttal and what he testified was that it was not just the mere passive receipt of an unsolicited proposal acquired the actual business of piko so what it did in ninety ninety eight is it went back and looked at those molds and said you know well the rules are not going to do we've got new molds to meet our stringent safety stairs it looked at what the cost of developing those new molds would be contrasted those new molds with the deal that was proposed by k b toys remember k b toys was proposing an exclusive deal with b toys and they said the following that k b toys is currently experiencing is not going to be sufficient enough to justify us having to retool that entire line because remember  in ninety nine i'm sorry part one was the mark canceled in ninety nine because they did not file a section eight fifteen affidavits that said that they've been continuing use and in fact they haven't been continuing use so they couldn't f they had a nine hundred ninety eight and did that calculus where they examined that potential use and it was just two short years later in two thousand they started this process of research and concepts approval and then were called mr french testimony about the concept for approval management said no you've got to go back to research and expand on why we want to greater use of the crash dummies franchise so they went back ever filed its intent to use application i remember c d s filed an intent to use application they never use this mark on these products but c d m a has a long history here because c d s had a film option with tyco had to c d s you didn't live up to the agreement we're not going to renew the option we're going to find somebody else to do the film option and so then c b s comes back and files an intent to use application while mattel is in the middle of this complex process that took it three years yes but what it did was it expanded the crashed i was mark sullivan and it sold almost two million both ways on that and it's it's we're not so much for wiring on the specific case law that supports that but on the specific facts of the testimony mr frank talked about help as well as i was in the industry had this one practice of recycling popular toy franchises and they recognized when they purchased tyco that it was a phenomenally successful franchise and it was it was a phenomenally successful toy carried talk about the play pattern of clashing and it was something that they went back to just a few sure short years after that acquisition so recycling of the toy brands was supported specifically by the testimony of mr walt and specifically by the testimony of mr frank mr davis argues that the imperial tobacco case and other stands for the proposition that i hope like a governess characterize his position that documentary evidence is acceptable but that testimonial evidence of intent is not to a particular subset of the entire group marked right but it is some evidence or not and the board looks at as i said before sixteen different factors it looked at really all of the circumstance is testimony of circumstances from which mattel's intent can be can be inferred imperial tobacco is important for one of the reason that the court shouldn't just focus arbitrarily m p three year period what it should do is it should look at the entire period of nonuse and any other circumstances before or after that period of nonuse that would suggest that mattel had this intent and a classic example is residual goodwill based on facts that happened before the period of good use there was residual goodwill that was recognized by this court in the survey surreal case and footnote to that that residual goodwill can be a strong motive to resume use of the mark and it can be a circumstance that can be combined with others to support and intent to resume use but more individual documentary exhibits and to the testimony of the witnesses and you'll see that addressed for example the objection to the competency of mr frank's testimony and over ruled that objection and you'll also see that there is no discussion in the board's opinion of any objection to mr frank's testimony on hearsay because there was no such objection made and the board was very careful to point out honestly my my time was just objection that is where he is is in fact topics so it wasn't just mere semantic problems with the bore it was the fact the trial rephrased competence there was no objection on hearsay during the pages ten twenty seven and ten twenty eight where the court refers to the then two year period that was set forth in section forty five and says when no evidence of intent to resume is offered for a period approved use of monies two years then as to those have filed the declaration of use required by section eight to maintain these registrations that is simply not the case mattel could have filed declarations of excusable nonuse at auction is open to every registrant if it is b if it feels that having this mark and use that still would have been adequate and even if this court credit the testimony of mr frank is to that point still would have been an inadequate showing under the commissioner's decision in re doing with mutual life insurance which again but tell