morning your owners kenneth brooks on behalf of appel and the distinction between what's going on in our particular case here and what happened in b and b is in b and b it was about issue preclusion you had allegations that were actually litigated on the so the court had something to go by to determine whether or not these parties had actually addressed the issues which were put forward in a subsequent filing in the case at bar what we have here is a default judgment at least that's what i thought it was until i register we agreed that a default judgment is litigating and on the merits well it's not actually litigated which is what is required in b and b and that's what they address so i mean it's not actually litigated what's not actually litigated they don't know what the issues were actually presented and that's because of the problem with notice pleading but here it's claimed but here we're talking about claim yes your honor so i had to me it seems funny that one of the differences here is that you couldn't have obtained the same early you could the relief that's been sought in this case was not available before the t t a b is that correct yes you're and what impact does that have while in the well we why would we file in that case and i believe that's what happened in the all you can do is preclude registration so what's happening in our case is we're bringing forth affirmative relief with monetary damages which we desire  opposition forward in then they did not respond in then a d a judgment was entered a judgment grand tain the trademark no a judgment granting registration of the mark and that's kind of what's going on here is  you have to use a mark and within now there's a geographical aspect of that use because you can have a trademark that's registered on the federal register by someone else in a sub that it was using the sacramento area that's why there's a specific pleading in the complaint of the interdistrict transfer to the sacramento court as opposed to fresno that we know exactly where it was use we're not sure how broad it is that's part of what goes on with trademark infringement litigation in but going back to the well in the in the t t a b if you appear let's presume that v v v are we call it three b or on a three  ok let's assume that three ve had challenge that presumably they even the default judgment presumably they could have appealed that where would that have gone what that would have done to the federal circuit yes here and could the federal circuit at that point have question was whether three v had brought up below the well what did you argue below three v i thought just argued that we don't satisfy or this case doesn't satisfy any of the at least one of the four requirements for claim preclusion is that right yes your honor that's part of that but but i thought i saw the waiver question as did triple v or three of the did they raise the issue below that even if we don't satisfy even if all four requirements of claim preclusion are met under the th circuit as there's an exception to that where where you can't grant relief where you the relief that we're requesting now could be granted that's not part of the an issue for factor test and i thought the argument  was i was interested in hearing from is why isn't that waived on on your part to me that seems like the strongest argument you have well we did raise the issue time and again in our opening brief that claims were seeking relief or in the district court  a b could not be granted i mean they just did not have the jurisdiction which goes right to the point it's not a court or tribunals competent jurisdiction by which claim complete or raise you have got to argue that issue below in the district court yes  complaint in this one if it's about the pleadings i mean the federal courts have an affirmative duty to assert their jurisdiction over federal causes of action and with the notice pleading in the t be you really can't determine what the jurisdiction or the issues were being asserted by the tb and what was being you know what the relief would have been down there the notice pleading precludes a federal district court looking at a default judgment based just on it in this instance a petition in an answer from knowing exactly the issues that were going to be addressed what evidence would come forward and that's why i think is interesting about the b is justice alito makes it very clear that he is talking about claim preclusion and another tribunals that were actually litigated we never had this here and so in this instance i think the court has to be very mindful not to use judicial science to ignore its affirmative duty to assert its jurisdiction over these claims and that comes right out of moses h cone memorial hospital the merc reconstruction for sixty u and eighty three and that's really what i think is a the problem here is that a district courts without you know what that's close enough it's a default and you know even though it has limited jurisdiction it's very limited by congress  we're just not going to try to figure out what happened there we have the two parties and it looks like trademarks or that's it we're done so in that respect i believe that the district court was basically using judicial theory to revert its affirmative duty to  the trademark office a proceeding in the trademark office tracks a proceeding before a federal district court the they are bound by the federal rules of before the trademark trial and appeal board in particular you start out with the st in this notice of opposition that is an issue the st claim was for likelihood of confusion under section two d liniment and in order to present that claim which is part of the pleadings in notice of opposition you have to show number one that you have a valid right anymore number two you have priority number three there's a likelihood of confusion that was determined by the judgment and it was what was it determined by the job and i guess the claim was determined but the issues went to term and the claim was determined because the because  show cause why judgment should not be entered against the plaintiff for its failure to prosecute basically and but but ultimately the judgment was on failure prosecute it wasn't necessarily on the merits bear in mind i don't think only matters for i don't think that matters for claim preclusion i don't but i think it would matter for issue preclusion would absolutely yes but going going back to trademark office has the authority to determine or to rule upon a claim and they ruled upon the claim of but by virtue of this if you want to call a default judgment which i don't but nevertheless they ruled on that claim and that claim involved ownership in of a priority of likely to confusion also involved the secondary issue of whether or not there was a  there they could not have received monetary relief because my client in effect received an equitable remedy which is the issuance of the registration which gave a prime facia evidence they could then and my understanding they could then go to a federal court and they could seek for monetary damages so they couldn't under twenty six say yeah but they really couldn't because at that point you would have used the mark  or i guess that presumes you would have used the mark before you registered it i guess well and that's in fact happen and in fact although it's not in in the papers here that our client had used to mark prior to the notice of opposition being filed another is a big to do about but see i think what you just said almost gives away your case because what you said is if they had not been and if the t t be had invalidated the mark th three v still would have had to go to the district court in order to get damages for anything any misuse of the mark or any infringement they could've sought that from the t v they could have yes but they had the whole time they could have gone into federal district court to begin with i chose that particular forum in a restatement it says if you choose and in a form that does not give you all of the rights and all of the remedies that you're entitled to that's that's b then waves any damages and that seems no no they don't you have the right number one you have the right to appeal not just to this federal court i stopped you what what was the section or yeah if you have it because i yeah and if you need to if you need to submit something supplemental we have had it here but i do because i i was not aware of anything that said that if you we had gone to a forum that wouldn't allow a certain relief that you you know it doesn't say that you discussed it does discuss the issue and says that in many cases that you know if you pick a particular forum knowing that it's a form of limited jurisdiction you're stuck with that form but in this these but they didn't during the procedure of the notice of opposition you can go into a federal court and sue for trademark infringement and all of your claims if you want to and suspend a trademark office proceeding during that period of time so  let me ask that because i was confused by this whole process if they had appealed to the federal circuit could they have raised could they have also raised new issues before the federal circuit but if they do you appeal it to the district court if there's some provision that allows you to appeal at t t a b decision to a district court you can either appeal it you can appeal to the commissioner but you but you either can appeal it to the federal circuit  court and it's just determining whether or not the team got it right on the on the cancellation i want or you can appeal to a federal court for a trial to know and if you appeal it to a federal court for a trial to novo then you could raise everything anything want but they didn't do that they didn't but then if they didn't do that doesn't that mean ok hey can you briefly address the jet case from the federal circuit because in the jet case the federal circuit said that they are not a district court decision and a proceeding or do those two proceedings don't necessarily stem out of the same common nucleus unfair competition or trademark infringement are identical for all for purposes of what was before the court so you believe jet is no longer a good law that correct on a number of issues of jet also said that you had to have a federal registration you don't just like a federal district court case you start out with your pleadings you have your discovery conference you have your schedule everything you have a period of discovery where you can take  you request for documents admissions depositions you go through and you go to a trial stage where you submit all of your evidence and you had live testimony in the nature of a deposition or you can have an affidavit set testimony only difference between these two forums other than your rights and remedies the only other difference would be that you don't actually do this in front of a judge you submit this to the trademark trial and appeal board but you do have the right afterwards to argue your case before a three member kind of judge is a trademark on appeal board and this these judges are experts in trademark law but so there's really no distinction between data transfer your over your time you may want to some other place that in they didn't raise it until just recently in this case we know what was presented they said they don't know what issues were presented to all of the issues that were presented in the trademark the it's clear that justice alito was stating that we knew what was adjudicated that was claimed for q i mean issue preclusion that's because they actually had the depositions and all we don't have that here and this is