good morning may have please the court my name is elizabeth king and i represent court to a restaurant in this appeal if i may i would like to reserve three minutes for a bottle before i get started i would just like the court to be aware as we stated in our brief that the outcome of this case has tremendous policy implications not just for the appellants mark and its rights in a thirty year mark that's been registered by the p t o three separate times and as protected by a registration under section fourteen of the act but for the identity legally equivalent marked for the same services but also for many other services whose names identify a feature of those services including as we've already notified the court of the red lobster case where they've been ordered to disclaim lobster in connection with their restaurant services despite a quarter distinctiveness and many other marks including restaurant services steak n l steak the prime rib which are both mentioned in the square magazine and secondly that they failed to analyze generic ness and acquire distinctiveness based on the evidence of record which includes the three to one registration protected under section fourteen of the add a full month before the exam correct in fact is this court noted in merrill lynch in contestability only confers upon the registrant the incontestable right to use a mark and converse which of course doesn't apply in the case of generic mous but what that what the the relevancy of the ten fifty seven b claim of ownership of that prior registration is evidence here because as the supreme court noted in the b and b hardware decision your honor a ten fifty seven b is prime  facia evidence of the marks ability so once the application was filed making a claim under ten fifty seven before the ownership of the three twenty one registration it was at that point put in to the record and since that mark is the standard character iteration of the style zation of choice goes for the identical services it was incumbent upon the office to consider that road registration as evidence for register ability of this mark and had the office done that they would have noted from the record contained in that file that goes is not the true os korea which goes directly to the heart of the generic  primarily uses or under excuse me uses or understands pizzas primarily to refer to the genus of restaurant services now we can expect due to the ubiquitous understanding of the word pizzas that it might be that there is evidence that shows that the public property or stance of pizza is primarily refer to the genus of restaurant services but let's say there wasn't that evidence then does that mean pieces registerable for a restaurant well i would submit that it's not and the reason goes to exclusivity as opposed to generic ness which again is an example of how those two principles that a factor in to register ability have been conflated in this case because it would very likely be evidence overwhelming evidence of third party usage of pizzas in the names of restaurants regardless of whether or not it could be established in evidence that the public had a complete understanding of pizzas it as referring primarily to restaurant services and so it would be substantial exclusivity that would ultimately ban the use of pizzas in connection with that type of restaurant or any type of restaurant as opposed to a g primarily to refer to the genus itself as opposed to goods featured by the genus and in this case your honor that the my four points on the matters first they failed to analyze the genus correctly hundred and ninety five likes the searches only for the braze chill rosco restaurants not for the march roscoe's which is this court has already stated of course is that you are supposed to show that the mark as filed for example in the duo prostitution where the mark was snapped with an exclamation point that this court held the p t o had dissected the mark and had knocked off the exclamation point and failing to ascertain descriptive  it's not actually the only thing that saves us and the addition of the us is not incidental at all to and there are two reasons why first this court has stayed in riga selvi or that its work which the issue there on appeal was of course for the market lawyers dot com and the recitation of services was information exchange for legal services which the court then looked behind the stated genus to determine what the appellant was actually doing in that instance now keeping that backdrop in mind the said that the well there's ten articles but seven of them are instructive that in the record in the for the lexus articles keeping those seven articles indicate the type of restaurant is beyond  o they notate they they mention brazilian steakhouses and the flesh trade article it a one eighteen of the appendix specifically says the cooking style is chill roscoe and the restaurants are why isn't that evidence to tear it up salumi is evidence of generic ms for steaks and if in fact and i would like to actually refer the court to the p t o s brief at thirty two and thirty three and thirty four where they actually yes for them ok well the difference between registering steak from a from an evidentiary standpoint of course under get it would depend on what the evidence showed the public use and understood that term and if it primarily refer to expansive adjective with very many meanings the other difference is that steak is a set species of food whereas chill rosco as a noun for steak prepared that way is a subspecies and there's really no evidence in the record that the public would understand the term chill roscoe's which is actually the mark to refer primarily to the genus of restaurant services and going back to the court analysis and read the the court stated for example the as the as i mentioned the recitation of services and read was information exchange about legal services and the court said it was appropriate to illuminate what was meant by that by looking at what the appellant was actually doing and what it turned out was that the appellant services will oriented to lawyers and therefore that was to consider to be the paramount aspect of those services and as such a generic for those internet those web sites services in this case upon examining the record to determine which roscoe's is doing it is abundantly clear and i don't think anybody is arguing that sure roscoe's is not a chore oscar riya and therefore the mark as used hotels lawyers dot com mattress dot com whether or not the words sought to be registered was the focus of the genus as an illuminated by what the appellant was offering for primarily understood the mark as referring to the genus of restaurant services if it did not then the second issue would be whether or not exclusivity would be attainable for  permissible to register that it could include disclaimer that make it registerable what where are you on something well i think that in a case like that the short answer to the first part of your question is no it would not be a registerable because a vegetarian restaurant is a category of restaurants and someone who came in for restaurant services with a vegetarian related name or better the  thing that you are seeking to register there's virtually there's nothing left at that point so it is possible i suppose that if the goods and services were defined so as to make clear that it was not going to cover any sort of meat preparation it's possible that in that sort of situation it would be ok so how do you respond to the earth being mean that this is like a situation where the word top progress product is used for a japanese restaurant that that's the same slee the same sort of a hypothetical how does that how do you distinguish the present were that the present case is that what they're contending here is that they're not a true true roscoe restaurant which they define narrowly as h ross korea serving brazilian food and it doesn't matter that they're not a true in that limited sense because they are seeking a broad registration for restaurant services and they could become that immediately upon getting the registration and then use that term to roscoe's to keep people who are in fact that when with a disclaimer which we would say were we disclaim the use of this more or in the case of the taco or a mexican restaurant mexican restaurant or something like that they can't do well not in the foreign not in the form of a disclaimer i think that would have to come if at all in the goods i are goods and services identification the disclaimer is really to disclaim rights in a particular aspect of the market i put in the goods identification restaurant services excluding the service of meat that's permissible to do that you don't have to use standard descriptor no there can be limitations in the goods and services i the dispute here is about the second part of the marble going to house then what that is is whether the public understands the term to refer to the genus of restaurant sources and here what we have are two types of evidence that show that the public understands it to refer to the genus the first is that sure oscar rhea's and i think they would agree with this are a subcategory of restaurants and they're called generally called by people in this country tropical restaurants whether or not that's you know the technical term or not that's how people understand it and this court has in other cases held that when you having a term that is generic for a particular subcategory within a broader category that's claimed in the application it can be generic in the thinking about the matchlock case the pre formed case in the past arise case which were cases we cited in our brief the second way that it's and  that's there's no dispute as to whether or not people call it a rest once they do and there are ten articles as counsel said the other is the lawyers dot com and hotels dot com and mattress dot com cases where another way can show that the terms generic is if it defines a key aspect of the claim services and here their own menu shows that it's a key a key aspect of the service as they call it their signature dish they conceded to the t v a b that's the specialty of the house and in for those reasons and then also the esquire magazine shows that they've been allotted for this particular dish so for those two reasons and those facts are undisputed this mark is generic or what if was let us you know all restaurants i would think serve lettuce and some for me there is a garnish or or you know something that shredded on some particular dish it's not really in any sense the key aspect so for this independent test of whether or not something is a key aspect of the service i think let us would be something that would be difficult to say as generic the restaurant services whether or not it was a vegetarian restaurant or a meat restaurant if you so you could register let us for a restaurant i think you could register let us for a restaurant because it's not there's no we have enough to vote what they're serving it might be descriptive of one of the ingredients that they do use but i don't think it would be generic in the sense that it's a e or just sue play that would be generic for restaurant services too because it's a dental fison item that suspect that's a signature dish and their argument in their brief has one hundred percent been oriented around the signature dish now this court has already spoken to the has the right to require an amendment to the recitation of services in order to avoid future conflict and in the only a case of course the issue on appeal was whether or not the p t o had collaterally attacked prior registration amiga that were registered for a broad recitation of goods chronographs and the p t o was required even though that was in the t n id manual and allowed the p t o was requiring a narrow recitation and what this court road at the end of it's opinion is that the p t o had assured the court that by requiring omega to adopt a narrower specification that it would have no impact on their prior registrations now obviously they can't make that claim here because what they've done is no