you're not a county lawyer a lifestyle experience at its restaurants and its intention was much like similar restaurants that have also adopted the same calendar as part of their market for the record indicates that there's a restaurant by the name off and that tell a group describes its restaurant as being influenced by the mellow kaleeba there's another restaurant in the record by the name of cali fire grill and that restaurant describes itself as being lifestyle experience at its restaurant not to describe a particular menu item that may be on the offered it at the restaurant and in fact the evidence of record demonstrates that my claim does not promote any particular menu item instead it promotes its menu generally its burgers and chicken sandwiches as being made with fresh ingredients prepared a very healthy way which is consistent with its messaging that it is the california lifestyle that is the primary message being conveyed to consumers not to promote any particular menu item so the question of this appeal just so i understand your arguments i understand you're saying tally burger is suggestive but what if the name of the mark you were trying to register for restaurant services was california style burger well if the  the if the main menu item or what was being promoted as a feature of substantial aspect of the restaurant was in fact a california stabber then it would be a descriptive term  refers to california style burgers she uses the term california salad i think that's quite frankly were the four made an error by focusing solely on the use of the term california back to the city in the context in which it's being so for example in that city week that article came to sweden is had to go on to explain to the second sentence to the reporter what she meant by california style and when she went on to give that explanation she didn't say that it doesn't say that i look at what you're selling and decide whether you are selling a california style burger right and look at what mark you're plying for so even if you weren't selling a burger with avocado and beans for adults which is probably what in my mind comes to mind if that's not what you were selling you know that wouldn't be the issue if you were seeking this market for a burger even if the one you were selling turned out to be slightly different it had lettuce tomato and onions are what you know what i mean so but you offer kelly style fries that's what you say california style fries these are french fries with quote real american cheese i'm not sure what the alternative was but real american cheese and onions suggestive of that lifestyle and i guess our position is that the elements of the california wife which the director didn't object to or take issue with one aspect is that there is this sort of healthy characteristic healthy element two to california or to the cali lifestyle when you when you think about that so nukes when you combine what they said that's not what it calls to mind the word cali burger taken together means california style burger that's what they concluded  you need me to find clue that's not true right that's what you need you need me to conclude it doesn't call to mind california style burger crip right it is think that because there is an income groups meeting it when you combine tally which argument be the same if the mark was a california burger so now you'd be making the same argument that ok we're california it's not just a state or it it's a state of mind right now it's all about i don't know lifestyle and we're saying california burger for a restaurant is that yeah right that and that restaurant doesn't feature california stubber but it in the similar way in which my client is promoting its menu just generally just it would just promote burgers and the health aspects of those i mean i guess what i'm wondering if wise in this case more like a sushi place called california roll right i mean yes california that's a state of mind but now you know there's something out there in the marketplace that people recognize it's a type of sushi roll and it's a california so i mean i think everybody in the room agrees that sorry you can't get a registration for california roll for a japanese restaurant right so the the the cases that have come out to discuss the script in this of a restaurant named in the context of that name also corresponded with the food item it was held that so long as the name of the restaurant is not also the name of a significant menu item or menu item presidential decision but it involved a mark on the south station and in that case it was for the name of a restaurant and in that case again the applicant had a salad bar that it was promoting as having over eighty ingredient types and it examiner also was able to put another record thirteen screenshots of third party websites that had also told c n n this makes me a little bit nervous because again that's where i started with you was asking whether i'm supposed to look at what your selling or whether i'm supposed to look at what you are seeking the market for you're seeking that market for best right services in ingestions example and everybody knows what a california roll is  and if i was seeking a california role for a sushi bar maybe the sushi bar and quite frankly i think most usually bars their primary ingredients are to know or email or whatever you know like they're there if that's not a california roll isn't the signature dish of the house or the primary dish and else it's one of many pieces of well known sushi that would be offered and you would expected to find in any sushi bar yet it seems like that what you're telling me that shouldn't under those circumstances be felt to be descriptive if it's not if a california roll is not denoted as the specialty of the house or they're getting the selling food item regardless of the fact that they're seeking a market for restaurant services not just their well i think because the just because there's a food item doesn't necessarily mean that when people encounter that name as that as the name of the restaurant they're immediately going to call the mind that particular food item if it's not the sort of you know significant feature of that restaurant and that's me that makes sense because by getting a registration for the restaurant of the service itself that doesn't mean you're going to be able to prevent someone from and in the let's say take my client's case for instance and someone using california stopper or took to describe  if you got the registration going to be able to prevent someone from using kelly burger to describe a burger possible yes i think so i think there's some uniqueness about that where i get out we would not be able to stop someone from selling or saying that they're offering for sale a california stuff or that's not the intention here either and that's that would not be within the scope of my my client's rights are there any other questions  the only question in this appeal is whether substantial evidence supports the board's finding that consumers would readily understand that kelly burgers describes the feature of restaurant services and the evidence easily easily does in this case includes the kelley burger chain's own marketing materials which is a court of service warning show that the chain sells california style burgers it includes evidence of other restaurants using cali to mean california in the context of restaurant services board didn't make any fact finding that the atmosphere or otherwise was relevant to its decision the board expressly limited its decision to cali style is a particular type of burger that is known to next paragraph at the bottom of the page the board says the evidence all shows also shows that the applicants restaurants feature california burgers on their menus this is all against the backdrop is the board acknowledge really where do you see that where the point recognize that because it says it features california burgers that it's restaurant that's somehow now marketing is part of the criteria that's being taken into account i don't know i'm really baffled by your argument i feel like you're a moving target right now i actually thought your brief is quite good and you're not actually sticking to it i'm not sure where you're going well i think in the brief i think they do we we argue that  something to me in the final office action by the examiner it cites a piece of prior art that it's relying on ok and i don't have that it's the examiner thing this is the portion of the exhibitors final office action where he's citing the evidence that's at issue and in particular what i want to direct your attention to is footnote five in the blue brief which is supposedly a menu for freddie's steak burger a california style but this comes directly from the examiner so she found the site e the website is going to read it out loud i'm sorry you only read the website itself or you know i want you to tell me what footnote five said this is where i can locate this piece of evidence that the board in the examiner both relied on funny i don't think so well really because all i could think of when i'm typing typing in w w w dot examiner dot com is please don't have porn pop up on my government computer while i'm typing it in because i knew for sure that was not a government website right anderson nor is it a reference to freddie's steak burger or california style this came from all the way back i'd like you to take this back to p t o in all seriousness and i'd like you to tell them it's not funny it's not funny this is important i want to see this piece of evidence that was supposedly relied on by both the examiner the more i pulled up every piece of evidence in this case that piece of evidence was not only not available but the best i can tell is somebody thought it would be funny to claim that piece of evidence is available for my final of the section and that's sort of the issue that i write well it was very hard for me because i couldn't find the evidence that it was supposedly referring to and there is no such thing as examiner dot com which contains it says it's a top of th but it's a lot more it's not examiner dot com you've got to know about fifty other characters before you can get to this piece of evidence i see you know to be like me telling you to find a for a little arose and like a little piece of straw in a haystack it's the very o s treatment in this case which by the way i know in your robbery if you say quite clearly if we have this argument so you might have seen it coming and you say they acquiesced in it a while before the board and they you tell me they waived it on appeal here b not raising the will brief and then they didn't respond to integrate so you don't have to worry i get that way but one of the things that bothers me is how can you say a california burger cali burger is a california style burger and that that is descriptive of a particular type of burger and then offered me five different pieces of evidence that describe the california burgers five different things i mean just be because it would mean it would mean something different to every person if people say well you know i think and something like that seems to me to quite and i realize they did make this argument so don't worry i'm not deciding the case on the basis of this argument i'm just a little bit worried about the state of the law if the government is of the view that it doesn't have to be descriptive of anything many cases i think the difference here is that it's a very there is a common theme theme running through all the california burger menus recipes and it is something that's fresh and healthy and it's something that's sort of in some fashion that's what california style burger implies that would have given them broader leeway when it when did they do you think they adopted the word california style is indicative of a characteristic of burgers or as you referred to earl day and it made a finding that at the end of the day consumers will recognize that it is a type of food in the short sighted all that of it's but that i know it's a type of food but then they cited seven pieces of evidence no two which agree with each other on what type of food it is other than i burger and that would be like saying any time a word has burger in it it's going to be descriptive no matter what the word in front of it is they had the whole ball of wax here is cali or california and what does that mean and the burger the seventy five different pieces of evidence located on page four of the board opinion for its meaning over five each indicate something different i mean one person is claiming it's a turkey burger yummy blend of avocados and tomatoes another person has came claiming not surprisingly in allentown pennsylvania and i threaten clerks that i would start singing a song to a sound where during during court here i'll decline to do so but i did want to put it out there that was possibility in allentown pennsylvania it's what lettuce tomato and manny's that actually doesn't surprise me it offered me instead seven different examples which are seven different examples that share only one thing they all have a burger and i would say that they have a burger and some some don't have lettuce some don't have lettuce like the morningstar one does not  where the line is between descriptive and suggestive and that to me is is where the line is right the harder it is to call to mind something specific the less likely it is to be descriptive of a specific thing true of it and i think but i think you know it on the trademark continuum there's that there there really are no bright line rules and it really is it is so incremental and it really does turn on the evidence that worries this specific case and so i think the best i can say is california burger maybe there's very a lot of variation in what constitutes the recipe for a california burger so maybe we can't really put a finger on it maybe that makes suggestive i mean i'd like to hear your thoughts on that if i believe there's there is there and you can't put a finger on it here because what the evidence showed it was assumed you can't let's assume that the only thing you can put your finger on is there's a beef patty between two buns and then everything else is a free for all i think that's a harder sell for a discrete descriptor this refusal it would depend on thank you you know the director made the argument that there is evidence actually to support the court's decision that tally is a descriptive term and i think it's to the contrary i think in this case what the board did was substitute its opinion you would be a descriptive term as opposed to relying on that and grounding that finding on the evidence and what what the board relied on to find that kelly was descriptive were really four pieces of evidence we have two foreign articles the serious dot com article the city weekend dot com article all of which just simply reference california style they do not go into detail about what a california cell or actually needs the third piece of evidence was the  california style burger even if a california style burger is a specific thing it's referencing adepts something different it's trying to convey the primary message about the thought healthy aspects of those those of food items not that evidence well they relied on the reference to california style and they ignored the sentence that followed it much like they've ignored the context and other pieces of evidence as well so if you look at the franchising dot com  website as well my client does not promote in that particular piece of evidence a particular style or her it talks about the preceding that cali style that kelly's tired language as the finest and fre inspired burgers and chicken sandwiches were not signaling out any particular menu item which is what is required in order to find that a menu item is substantial and significant and therefore possibly would render the name of a restaurant the script it so again now the thing in the context of which kelly's california style words are being used is what the borderline on in they should have been looking at the context which would have completely changed how this this evidence  an inherently distinctive mark which means that from conceptual strength perspective we have a strong heart if you are thinking kelly burger for a california style burger do you think it should be allowed kelly burger for a california stuff yes you weren't signing up for a restaurant services but rather instead because a lot of your argument hinges on you know what it means that you're seeking it for restaurant services if you are seeking it for a type of burger with a slice of a condo and some lettuce and some bean sprouts or something do you think you should be able to of the idea that cali stood for the word california or the people would understand it or think it mean to me california is that your argument to make sure i understand your argument no i mean so the abstract people understand that cali is the abbreviation for california absolutely but the third abbreviation test requires that we consider that abbreviation in the context of how the mark is actually being used in this case the government's argument that it's been using connection with a particular us type of