good morning to you may please the court brian leetch on behalf of the rico restaurant group for the argy the trademarks in this case look different sound different give a different commercial impressions to consumers and share a common term that has been diluted by widespread third party use in a crowded marketplace in which consumers are readily able to differentiate among various trademarks even based upon minor distinctions the trademark trial and appeal board in this case legally erred in holding that there was a likelihood of confusion between the marks in this issue but even if the court were to disagree with us on that point in five of the services were similar or identical we would still prevail on factor one and factor six which is the dissimilarity the trademarks as well as the evolution through third party usage evidence  case a little bit different that night dupont for example or four seasons where there were some sort of agreement at least between the pardew's that one would use them or for this purpose and the other would use them or for that purpose and when i say between the printers i mean between the holder of the registered owner and the trademark after hand is there any thing like that in this case we don't have a consent agreement in this case but i think we have the next best thing which is the registrants own statements in the prosecution history at two eighty three to eighty four the appendix the registrant points out that its services are targeted towards the fast food consuming public its general description and its trademark entertain other you know part of work with the board of the examiner to to further amend but i you know i think your honour's point there was a consent agreement in four seasons it's notable to the consent agreement that casey did not have a geographical limitation on extent there was a concern about consumer confusion the applicant in that case four seasons built more believe would have still been able to advertise its mark nationally and you know i think the the reason why this consent agreements have probative late in the analysis is because they reflect the considered views of the parties who this court has said if you are in the firing line of marketplace in this case we have essentially have same type of evidence we have the registrants own statements distinguishing it which is something that i think those other cancer flack as something that's important for him to keep him from making its determination absolutely right now we don't have that statement but i but again i think this the registry of statements from this prosecution history are the next best thing in the they reflect the fact that it didn't view its mark eureka pizza as being confusingly similar to the one word mark you're reka for chines and so i think you know even that that analysis would apply to this case with even greater force when we have even more differences between the marks at issue you know a one word mark for your review reka for cheese is less different than the marks in this case where you have you know the orange exclamation point you have the imperative phrase that follows the term  s mark and so you know the fact that we don't have you know reach of contract remedy you know not in the way that the consent agreements would have provided in those other cases isn't necessarily going to track from the probity value of the register and statement related to similar marks where do we do with respect to the parts of the marks that are disclaimed with respect to the registration of those compared and all i mean when you're doing a comparison that you're talking about i think you're referring to things that are described and i just don't know how treat yes they are given they're given appropriate weight now they're not ignored and that's part of the of that's part of the flaw in the board's analysis in this case of the board looked at the to the disclaimed parts of remarks and said that because those are descriptive in disclaimed they can't have source distinguishing function and that's one as a matter of law so is this court pointed out in the jews generation and a number of other cases simply because a part of the market descriptive or disclaimed in particular with a disclaimer issue the public doesn't know that that part of the nine the board makes clear that it's really engaging in a section of the market says you know the markets are not identical but that they're similar in the sense that they are there to begin with an identical term eureka the remainder of the voice measured if it's registered as a restaurant services and yours is met as attempting to be registered with restaurant services to so the fact that there are two different kinds of restaurant services i don't understand how set restaurant services wouldn't there be a likelihood of confusion there what think the court has to be engaged in analysis like it and gazed in coors where it looked at evidence outside the application to determine whether or not the goods and services would have been related as the mark was used in commerce and so in this case you know i think your honour's let's assume we don't know anything other than what's in the registrations which is your reka pizza is registered as restaurant services in your register attempting to be resident steward as restaurant circuses yes i mean everything else is the same they're very similar looking you know you can throw in an exclamation mark if you want to in the eureka talk of mark i don't think that makes much difference isn't that the problem here is that you're both attempting to register of mark and restaurant services and that he had done a fire is your ripka the rest of the stuff is just well causes confusion about or the description is not restaurant services that's what supply and preparation are some component which seems to me that may be of some significant difference to restaurant services well the reason we're taking the board's analysis as it comes to us in the board in this case really focused on the two for two more of literal description and we don't take issue with the board's method of analysis on that point i agree this would be a much different case i think a much easier case of support were just to analyze  has improperly the sector the marks it looks to see whether or not the board is engaged in a proper contextual analysis of how the marks are actually using commerce and it did that in shannon and it did that even in a case like hewlett packard where the packard technology has pizza delivery or catering industry and so you know in terms of the way the marks are actually using commerce the descriptive features in this case can still have source distinguishing function and in looking at additionally you know i think there was in that it was a form of wor morning good morning may please the court the board engaged in exactly the correct analysis here the board properly identified that the services were identical it noted that because the services are identical the degree of similarity between th marks need not be as close as it would be if the services were last closely related and the board carefully analyzed the marks in their entirety and if they try to amend their application here so a limiting and it was to state including in dining services so an amendment that might have had some relevance here would have an amendment that excluded the specific services that are offered by the register and that in a no you can't speak resolving this case but that possible difference it certainly would have a different question the board reserved that question because it wasn't presented with that question but what it would have been and expressed limitation was concerned about this section but what this court said was that ch'an argues that there was error and over emphasizing the words of putting on that in the phrase putting on the ritz and it said that shen contends that putting on ignored language in the mark and treated the marks as identical the board did not do that here the board spent five pages of its decision examining the marks in their entirety and looking at the additional wording in both of the mar examining their kind of haitian it and saying that while the marks do have some dissimilarities as a whole consumers are going to understand that there is some connection between the two marks i wanted to ask you about the third party uses of eureka one of the arguments that is made here is that the board didn't purposely assess the third party use for what is your response to that i guess there were seven registration and the argument is that the t t be distinguished from seven registrations just because they were drafted to restaurant services do you agree with that characterization of the decision well i do agree that none of the registrations are directed  to restaurant services and i gree that that's the correct analysis that the announces so it is not directed to restaurant services it should be considered at all or that that's part of the analysis you they looted in the relevant feel right and so you have to assess whether those registrations go to the relevant field and here with the board said was that none of the registration go to restaurants or is right so if anything actually what the registration the registration evidence does here is demonstrate that on the register your reka is unique to the registry it is a strong term as reflected by the lack of third party registrations for restaurant services the types of goods that were covered by the registrations were food items and the term of the seven other registrations seven registrations rights of the registration evidence here leaves it see aids and agricultural products are one of them was agricultural products so the board didn't discount it it just said that it didn't demonstrate weakness for your term your rico on the register and the board also considered the minimal common law evidence and just found that as a whole the third party marked evidence didn't demonstrate weakness of the term eureka for restaurants or is in so it found that the factor neutral didn't weigh it and against the applicant it just didn't find that it weighed in favor of registration if the court has no further questions now thank you similar in terms of the length and the depth of the analysis in both cases the board said we're considering the mark in its entirety and we're looking at the different terms or essentially saying that because we're descriptive or disclaimed we're not going to for them the same level of weight this court held that that analysis matter that those some of those some of the third party uses were used for related goods or for school sports teams even though the marks it is she were used for apparel clothing and for apparel companies and for sporting goods companies so i