just as a preliminary data let me point out the obvious which is judge o'malley is not physically present this morning she is listening to the arguments and is fully participating in this have evidence was sufficient or not in terms of generics is what i'd like to note is both the appellate brief in the t t p decision consistently referred to the class forty one identification of services as simply entertainment services and that's arguable overlap may be between class forty three bar maybe yeah i think of a nightclub as dancing music that type of thing and i don't see it as a bar at bars to me is different  ties back to the burden of proof so it's not a ponder it's and so for the class forty one services in particular what we have for evidence submitted by the office and is to definitions that reference nightclub  to references to entertainment generally which i would submit are not relevant for the reasons we just discussed and then at best two references to music but it's combined with the restaurant a soul food restaurant and one other one and what we have in the record for the appellant as we have multiple unsolicited uses of the joint to refer to the appellants venue and that puts us more in the category of the merrill lynch case where this cash management account and many of the references that were submitted in the record actually identified merrill lynch as a source there is no rd party use identified in the record that identifies another music venue or another nightclub another concert hall because i went over the revised myth declaration again yesterday obviously to prepare and the evidence primarily refers to the joint by itself and that's the revenue was identified just as revenue for the joint daniel it's not for the hotel overall and that's the same with the advertising they take you parse that out there's a separate entrance you can come through the you come through the hotel to get to the venue but you can also see the menu from the outside so they are because it's the largest menu at the hotel and they're able to track that revenue separately and advertising which they did and the visitors per month were for the joint on the website it has its own path that you can then track the visitors to that specific entry point on the website and the twitter social media pages called the joint las vegas and anyone who's been to las vegas knows that people don't use physical addresses to say where something is used what the name of well you know it's the the venue serves food and beverage so there's not a separate restaurant at the venue so it's like a it's a it's not a multiclass application we have separate applications but the food and beverage is offered at the venue there's not a separate restaurant at the babies so i'm sitting at a table and i want to get something to eat i can do that are i go to the bar and i want to get something to eat while i listen to the show i can do that so that's when everything is tied to it's segregated to the joint as in its own separate p and l that because it's viewed as a restaurant or a place to get a drink or is it really a concert hall concert i have to have a concert ticket to get in and once i get into the venue i can have food or beverage if i want let me just follow up on judge minas question with regard to the revenue  give them any naming like if it's ten million dollars but it's interest free where everybody is in the zillions of dollars and that seems less significant than if the comparative numbers are very small competitors so just help me out on how we evaluate those factors i'm glad you raised that they said was thinking what's my highlight reel and that's one of the highlight reels i wanted to talk about that today that makes it impossible burden for an applicant to submit act evidence because how would i get that information unless it was publicly available of a competitor i don't have subpoena power in the next party application i might be able to find some information on the internet or i might not there's no way  really garner that information to provide it and i have not seen a case from this court its predecessor other t t p that requires that that we have to have this type of evidence have competitive analysis to show  t but it does make the numbers meaningful for example you might be one might even have a strong case if that revenue in africa is the numbers are a one million dollars lot that's just scraping one is hard i mean it's what would be the comparison would it be when i compare dodger stadium which puts on concerts to a four thousand dollars seat venue in las vegas that rates it would be that wouldn't be a fair comparison because that the number of people but it w in las vegas it was also best of las vegas awards three years in a row and that was d in the top twenty five venues and that was in the yellow want to somebody from canada and recognize that it five minutes left for about oh i gave want to point out one thing before sit down on the devil in time where there was a comment that there was that our customers don't get the joke and they do and that said appendix two o eight there were two yelp reviews both from california one says st of all don't be deceived by the exterior of this joint no pun intended or is there but really don't before because this place is freaking here and the person from san francisco says the only negative are getting out of the joint ha ha they heard you into the casino which is way too small and feel claustrophobic prisons are notoriously small there is no freedom clearly people are getting that connection with the joint  others might think of a g l and others might think of a concert hall isn't that maybe goes to the argument of generic but what does that do to the merely descriptive does that make it impossible to be merely descriptive just because there might be another connotation disassociated with the term well it's not just maybe another kind of haitian there definitely is a connotation and we've submitted that through the dictionary definitions the articles they've got the obvious where they are making that connection and it's not  concert halls right but i don't i have puzzles but i don't agree that the joint has any generic or descriptive qualities as to aid in a nightclub a concert hall live music for which there's just no evidence of there's two lens through which we view that evidence is the context of the goods and services that are identified in the idea of the opposition ok so why don't we i don't know if this is where this comes from the appendix but i but prepared by my clerk about all the definitions that where it's at issue in this case so and that goes to the generic stuff so we've got two different classes here and the result may be different for the two different classes  all this dozen or more i'm not saying i mean a few of them have prison like or just building the oxford american heritage webster i mean most of these don't help you and the ones that arguably have something like a restaurant and bar i'm not seeing weirder you have one it's a nightclub out of commons where we are what are you getting to help you here at least with respect to class forty one in the dictionary definitions well i could point to a i understand they point to a number of definitions that we have here the oxford dictionary says it's an establishment of a specified kind specially one where people meet for eating drinking or entertainment ok there's another one that's of in which an area that says the definition of joint is a restaurant bar nightclub or similar business merriam webster it talks about a place of  where the not just right i mean of the ones we've got more than not certainly with respect to a concert you've got a prison in oxford i don't know what the american heritage a meeting place in marijuana cigarette or an orthopedic joint there's all sorts of different definitions yes there are but what you do in that in a case we're looking at whether or not a mark is generic for a particular service is you it is you look at it from the perspective of consumers who are looking at those services in the context of those services which of those definitions resonates and that's consistent with what judge friendly said in the abercrombie case you know many decades ago where he said you know a word can be generic for many different things so if they were going to say you could sell marijuana cigarettes and they called their store the joint you know that would be generic for that as well so the fact that there are other definitions doesn't really matter because we have to focus on the goods and services that are listed in the application so that really just your tunnels and what you're going to be looking at in the context of these two services one has had to i'm struggling with because i think there's a difference here between class and so i'm struggling on how we evaluate and flood the tests with the different classes because restaurants ours i guess class forty one does include night club services which of necessity would necessarily i think all of  them are right so there's some overlap but many a concert venue with live performances is something different substantially different than a restaurant or are right it's a different thing but if you look at the dictionary definitions they use the define the word the joint again looking at the services here as a place of entertainment they have intertainment services which they say are in the nature of musical concerts and we so there is the dictionary definitions do in fact cover what they are doing here and there's also some evidence in the record of publications where people were writing about particular locations and saying that it's you know a restaurant where you can get a live r and b and jazz bands on the here have anything to do with concerts or necessarily music it's right i agree more of them have to do with restaurants which might have to do with the fact that there are more restaurants in the country than there are music venues but i see that as one of them we just looking at this case in entertainment there is substantial evidence a reasonable person could have found the way the board did particularly in light of the fact that this prison reference that they want to focus on there is no evidence of that so given a mix of evidence where there are three or four things and publications and the dictionary definitions on the one hand and nothing that really supports this prison definition on the other it was reasonable for the boards were found on this factual matter that there was generic th class forty one services what can you go through the news articles which runs on just off the top i'm not seeing the music  are the philadelphia inquirer argument which is that there's basically two parallel records in that case it was at appendix twenty six last restaurant trying yeah that one person who wanted to open up a music slash restaurant joint there is the newark star ledger article that talks about the joint to refer to a music that features entertainment from d j s jazz and r and b groups so that's like music there was another one that was the mountain democrat the talk about you in the joint for a restaurant that has entertainment in the form not of music but a video poker games and i ask you just interrupt i'm sorry to interrupt but just because the time is limited but your friend i think makes the argument with respect to these articles that many of them are not meaningful because it's not joint or even like your feet can hear it's a lion joining manhattan joint hammett ring sandwich restaurant joints and that sort of cuts against you rather than for you well i think that it's supports us just not as much as when that is with the joining but it supports the definition of joint that the board found which means a place of entertainment or meals or nightclubs so it does support it it's just not as direct a support as the ones that actually save the joint when referring to those places so i don't think that it cuts against us at all i think it's fully consistent with what the board found about what the word joint means in the context of the kinds of services we're talking about here one of the things i wanted to clear up about the double entendre argument and i think it's important because they the kind of make the double entendre arguments both for generic ness and the description this refusal all of the cases that they've cited where the t t a b has found that there was a double entendre those were all too ea one merely descriptive in this case cases in those cases because you're looking at whether mark is merely descriptive when there is some other definition that's apparent from the market self and the goods and services we're talking about and that other nd meaning is not descriptive and then the mark is not merely descriptive but when we have a case where there is generic misses at issue the issue is whether or not the market is primarily  source indicator or primarily talks about identify the class of goods so there's an additional hurdle in using in the double entendre argument when you've got a generic miss refusal because you not only have to show that there is a nd during meaning that to the goods and services but you have to show it's the primary meaning because otherwise it's still primarily the generic meaning and that's something i think that gets kind of lost in the way the it was one of your inerrancy is where you don't find  generic that you can find it's merely script and say you haven't you don't have behind you that that is generic right so in a in a merely descriptive case you still have to find that in the context of the goods and services which are entertainment services for live music night clubs services and cost forty three dollars the restaurant services and bar services you have to find that consumers looking at just the words of the joint would conjure a prison and that there is no there's a lot of argument about that here but there is no evidence in the record that that is in fact what people do in the context of the joint for these classes of services and that what the board has something between the two classes that's what i'm strongly case i differentiating between concert venues and things that are just restaurants well i think i think you do have to do that because there really are two classes and i would admit there's certainly more evidence as you pointed out with that has to go to restaurants being called joints in the record or but i still or bars but i still think that there that what the board found here with respect to class forty one the music the music venue services that there is substantial evidence that supports what the board did and we can see that because there isn't any evidence for them to have found the other way and so there was really just a sort of a one sided record here how could a reasonable person have i don't know otherwise i mean that's the burden facebook the yelp reviews the trip advisor reviews all of these things also prominently featured the hard rock hotel and casino mark in this court and other circuits have been very clear that when you're giving evidence of advertising revenue you know what look how much we promoted the smart people no no it's of associated with us that you've got to be something where the inference is from that that you can say that that particular mark the joint is what people are it was what is giving the impression is get is the impression that's coming from this advertising but when there's other marks in there or maybe a different mark with additional words to it then that inference gets kind of torn a little bit it's harder to make that leap so that's what the board was doing here when it gave less weight to that in heaven it's just location i mean the joint in washington is negates the impact of the advertising and all of that yes because it's not just the joint it's associated with the hard rock cafe right through the consumers getting both more and started her argument by suggesting yeah i don't think there's anything in the record that bears on that argument i mean that would be something maybe that could have been fleshed out here but it wasn't an argument that was made or supported below and so there really is nothing to support that in the record as far as i can tell so that with respect to the acquired distinctness i think if you please but critically if you look at it in in terms of sort of as a comparative or the case twenty years ago in the boston beer case where the annual revenues for advertising and for sales were about what the same as the numbers that they're getting here for a period of several years and even then because of the descriptive nature of the market issue in that case that wasn't enough to say that the with at least with respect to class money in entertainment is you've got two tops three i think dictionary definitions that even could arguably cover class for anyone how do you evaluate it and you've got numerous others that dumped that say something else that defined joint as the something else how many of them how could we find generic at least with respect to class forty one where a few scant all the dictionaries only two  fifteen have the suggestion well i think that the dictionary do there are other dictionary definitions and because we have two or three of them here that shows that that is what the public thinks of when it join three but we've got fifteen others that say something else whether it's prison whether it's it welling or whether it's just a restaurant you have to look at these the way this court in the way the board in the agency look at these cases is you don't just look to see are there multiple definitions and look at all the different ones you have to look at it in the context of people who are looking to get those kinds of services and in that context you want to go to a concert you want to go to a restaurant you're thinking about that and you see the joint you're not going to think of prison in that context now one let me ask you ok so you want to you're thinking about concerts go down the list of definitions you have to sort of search pretty a face of generic relief they talk about places of entertainment and in the very definition of their goods and services they say entertainment services specifically musical concert entertainment so that the dictionary definitions precisely cover what they are doing it may cover other kinds of entertainment services and that's why for example i talk to you about the restaurant that have the video poker entertainment but there is also entertain entertainment does cover these kinds of musical entertainment services and you had any of these other definitions are not relevant when you look at it in the context of these particular goods and services and that has to be the way this is otherwise you're going to have a situation where as long as there is any other definition that you come up to even wholly apart from these kinds of services you're you're not going to have generic missed and generic misses about protecting entertainment services so we're talking about two different things i'm not suggesting a situation where you have you can find some other definition of hoarding that does something other tha right i think it is kind of this case because here you have all sorts of definitions that don't apply through the legal lens that you have to use which is the context of these goods and services here so once you use that lens everything else becomes irrelevant unless there is evidence in the record which we don't have here that shows that despite the fact that these are music at a nightclub and restaurant services people nevertheless conjure up prison and there is nothing that supports that in the record here thank you thank you prison thirty two of them used up particular which is the trademark here and that's the online slang dictionary in oxford dictionary then the wiki pedia definition says it's always used with so it's not joint by itself it's joint relevant public here particularly for the class forty one dollars services are people who go to music shows and people who go to music shows like music the definition is why would they pay to go in and it's common knowledge that  born in the early sixty's and i knew about that concert that went on and that there was an album at least one maybe two albums recorded at that so that the connotation between music and prison for those people who who like music shows i their so we have that there another point that was made by mr katz gundry was that we need to show secondary meaning for the double entendre for the identify goods or services there's no requirement a showing of secondary meaning for the identified for that double entendre with the identified service is in fact the cases really don't even talk about that they talk and if someone does by chance make the association that was in the nurse sugar and spice case the court said to the extent that the nursery rhyme is familiar to one senior here in the mark his recall is undoubtedly stimulated to make the association with everything nice so there wasn't an actual showing that they mean it's like if they do it and that's the same thing with the no bones about it case and the hard line there was no no evidence to show that there were some point i would make in this is going back to but this applies to both class forty one and forty three is the joint is too vague of a term you really don't know what you're talking about without the food modifier right we're talking about restaurant it's a soul food  bird joint so when joint and if what with respect to the music venue you don't know what you're talking about you have it's a pun and you can figure out that that it's upon but you know it's a it doesn't it's not the concert hall that's not the name of it and in fact are with a pedia entry has the joint parentheses music candy venues who people know what it is so with that in mind i don't see how that joint can be generic for either class forty one  to terry and there were so many other people companies that were using best beer in america both before and after the applicant and in a lot of these cases come down to is there a competitive need in there is there evidence in the record that that others are using this and need to continue to use there's no evidence of record certainly for class forty wine and for class forty three whenever they use joint the joint it's always referring back to whatever the name of the restaurant is or the type of restaurant so we would submit that it's too vague of a term to be either generic or descriptive and we've submitted sufficient evidence of secondary meaning if the court finds that the descriptor this refusal was