the board dismissed opponents petition for cancellation despite appellant showing of trademark service mark in trade name use predating to construct a priority date associated with that without police registration and despite appellant showing that registration through a fraudulent claim under section two f of the lanham act of substantially exclusive in continuous use of its mark in the five years of dealey proceeding that claim can i take you to that rd issue  you will for one thing your honor in this case there is no dispute that the section two f claim is not facially defective on it standing on its own when that when necessary sworn verification but that declaration does not contain a verification now in the bows this court held that cancellation for fraud is appropriate if during the application process a registrant makes a false representation with the knowledge of its falsity that representation is material and the registrant intended to deceive the p t but if women are the allegation her statement deals d with the knowledge that the texas stuff was in the market place and i think the board concluded that statement doesn't make a claim of exclusivity per se fall do you disagree with that conclusion that substantially exclusive use at mit's to some other parties uses and that is certainly true that is certainly something you can find a military cookware but the court in that case did not reach such a holding as a blanket proposition instead it merely vacated the district court opinion and remained of the matter with instructions to consider whether there had been quote significant cryer use it's on that issue that the is the accuracy of the representation of c intially exclusive use it again this court has held in check or that that analysis cannot be undertaken in a vacuum you have to look at the significance of the use that was and so your allegation is that they did not have substantial exclusive you that is correct your honor and you would also that's not enough for fraud by any means it's right your honor this is what we're talking about is the took your falsity cannot be evaluated in less it takes into account the significance of the other uses and that is an analysis that the board did not undertake in this case the board's opinion not have the benefit or did not have the benefit of this court's opinion in congress which issued two months after the court's the final decision and that's what i will tell you is that maybe this will give you some guidance on which way to go i don't understand i don't i don't get why you think got before us here not priority in the sense that we have here but in terms of priority rights in the infringement context that's exactly what was that issue in congress right and that's not it that's different from the issue before us righted it is different only in the sense that one involved an infringement action before the i t c of course this case involves a cancellation action before the board but section seven c on its face or in interpretations of it either lends itself to or contemplates that a registration can have two separate priority dates suppose for example in this case that the board is correct that the proper priority date is september th two thousand and six yet if the if the if the burden of persuasion on the issue of priority we acknowledge that we must demonstrate rights predating the constructive priority date the issue is simply what their priority date is they said was the sentence that you quoted on appendix fifty nine am i wrong did they reach some other conclusion with respect to the of it end well they do reach a conclusion that the evidence that had been conclusions with the card to the frock and not that your friend is necessarily going to win on that not underestimating the high burden that he would have to establish on fraud but it's just what's with seems to be missing from me  well so that that's it summarizing the evidence to relied on right that's correct it's not making a fact finding about that and then when you get to the end of the list and bullet point evidence it says we consider quality of testimony and all the even if are mentioned evidence and find the petitioners failed to demonstrate priority so is that the same fact finding that you think they need to make in this fraud inquiry that they felt that this evidence fails to decide to establish priority is that the same as substantial exclusive been continuously use is that good enough and if so why intent to materiality in the fraud context well i did not necessarily agree with the fact that the board did not look into that recently there's no they might have but they didn't give us any that they didn't put in and any evidence of prior years in the five year period while not my my our argument is that whatever evidence of use up th what's the answer to the evidence is the evidence that you are relying on to show use in a five year period the same evidence that you cared enough to try to show priority your own of the answer is no the issues are completely separate issues  the national guard and all the pieces of paper that you put in front of them or trying to show that there is a false statement by the other side when they said oh we had substantial exclusive use if you want to see use you have right has that same paper that was submitted on that issue the same paper the issues summit on priority or the evidence overlaps to a certain extent of a priority priority in substantially exclusive use or to comply or stay in the military is the evidence of same and when the board left it your evidence for priority what was the conclusion board's conclusion was that appellant had failed to demonstrate pages fifty seven thousand three hundred and sixty three of our principal brief that i refer your honor in particular so the opinion of this court's predecessor it ought to wrath in which that court said any use whether begun prior or subsequent to have on this issue has confused the oath required by section one hundred and eighty three d as part of the application process with that required under section two f there are different they have different requirements and the evidence at relating to both