and this case sent to trial by jury number one is that the court decided this case in the january category in the trademark continuum we think the evidence showed it should have been descriptive or even suggestive category category the district all failed to specifically define the relevant consuming public because does the baseline determination the has to be made before you make a decision what are something is generic accepted all of those evidence which clearly has some credibility and issues and on the roof fifty six if you have evidence that has some issues you have to look at it in the light most favorable to t trademark cases the standout is the novo review now how why did why is the category of generic not applicable in this case several reasons an ingredient in those watches so that is why entrepreneur media is exactly on point and in that case this court decided in the descriptive category counsel your time is ticking can i get you to watch and or jury buyers or consumers my next question is i think that the district court excluded consumer declarations because there's a rule set thirty seven violations so right well yes fourteen and the initial disclosures were due may of two thousand and eleven right correct so these declarations didn't exist at the time of the initial disclosures correct you by a couple of years didn't exist so my understanding is that the concern was that the names of these people weren't included in the rule twenty six disclosures is that right that is correct ok they weren't identified at the time they weren't identified or the initial disclosure were swapped wasn't there also a stipulation that discovery would not be taken no you know i don't i don't recall that there being a stipulation but even if there was the district court provided a remedy in no prejudice and discussion look at those declarations ok so now the second is the issue as to what category applies as i said it is descriptive category and that's why this court said in a lot of cases including filipino yellow pages and to print a media committee of idaho versus yost died the proper analysis is descriptive why because in the descriptive category if you have a situation where the mark me brothers was the expert witness who testified on the issue of what i was generic or not and so and so can you just follow through and explain to me why you think that that what will of evidence did allow his  be happy to your honor the evidence sherry objections that were made to both mr air and his friends colleagues and fellow workers were made on numerous different grounds not just the one that was part of the call cui that you had with  rockwell in fact first they were not disclosed and as was said there was opportunity for discovery subsequently but they weren't disclosed until the time of the what's a day that the nations when the declaration the decorations didn't exist correct right but the names of the names were not disclosed and there was a long period where discovery was opened there was no opportunity to take the depositions of these people because they weren't identified but that's only one of the one of the many are prejudiced and it seems to me this is a funny case because they had a registered mark and so in a way they have to you have the burden so they're waiting for you to come after him and until they know exactly the way we were  so until they know what the theory is how are they supposed to get gather their witness for them when they did counsel why didn't you depose they knew what the theory was because there had been a motion to dismiss previously that had raised the question of generic ness it was never a secret that generic ness was going to be the issue that was going to be ultimately presented so yeah we'll prejudice well we were prejudiced in a number of ways one is that when we came at them as you say we didn't know that they were going to use these witnesses as a response let's find out because they served them that's correct your honor but let me just to go further the court didn't rely exclusively on that relied on to other things yes one is that they were all friends and colleagues and fellow workers of mr air and under the self the court said in the self realization case that this is been determined over a course of time that of the people in this particular circumstance are not in a position to speak objective lead to what it is that happens to consumers in the marketplace and the reason is of course they're familiar it's not it's not that they're malicious but they're familiar with this particular use that is trying to be made of red gold and therefore their testimony is not probative there are also other problems with wait a minute before you leave this one no no ours are going to another is it your position to answer judge biases question that they were properly excluded for this reason as opposed to giving less weight yes because i believe that's what the self realization consuming public because they're all people that mr heir who is a jeweler to the stars all the people that he knew directly and they all know the company and the case law is pretty clear that you cannot use such things reason these are excluded so first they were properly disclosed secondly the self realization fellowship church case says that evidence of this kind is not probative and thirdly these people were not testifying as to the generic or non generic use of the mock of the phrase what they were doing was talking about secondary meaning and secondary meaning is distinct from generic yes it's a different inquiry the inquiry is not whether this has come to have an association in the marketplace the inquiry for generic misses the what am i who in my test and none of these declarations went to that question if you look at the declarations they're all very formulaic they say the same thing all i remember that chris here was developing this kind of jewelry and then they go on and say so i associate it with him that's secondary meaning testimony that's not generic in this that's money now that's related to the issue that comes up in the self realization fellowship church case because that's exactly the problem the question isn't what association there is in the minds of those people that are immediately connected with mr heir but rather what is the practical meaning of these this term as it is used in the marketplace and on that the evidence was absolutely overwhelming i would suggest your honour's that even if the declarations had been admitted there would not be sufficient evidence given the kind of evidence that we put in in this case with respect to the use of red gold in the marketplace there is this case is absolutely unprecedented you will not find another case anywhere in the federal reporter where the trademark that move that one challenge over five years that move the burden to us your honor and nothing more and we know that from the service centers case because in the surgery centers case the situation was identical there was a registration and the question was was this registration proper and in search of centers there was just a small amount of evidence that the court looked at about what was in the various reference books the dictionaries whatever and said look it's very clear that the way in feature that it is as is involved here if i can just say something about product future mr arkell statement that ingredients of necessarily not generic that's incorrect and what this wasn't described as an ingredient was described as a product feature the exact language of a judge paterson's decision in each and j kallo where you said a product feature cannot be anything but generic that's the specific statement there and that's what you have here you have read gold which is a product feature it is on the dropdown menus of the of the individual sellers consumer comes in says ah i want to watch i like the style of watch what color do i want to i want white gold do i want yellow gold do i want pink gold do i want red gold which gold do i want now all of these gold you aren't a judge has as you mentioned are very different and we submitted an affidavit from professor anthony lent who settled the diagram you'll find it in his his declaration a diagram a triangle which shows how each one of them gets the designation red gold paint gold not the same thing and nor is rose gold not the same thing these are different different product features which necessarily cannot be a trademark they are generic necessarily under the case law also i slike like to talk about more the other evidence i mean the evidence just goes on and on and on and it relates to the consuming  public as well as to the jewelers who sell to the consuming public in this year lance declaration there have to be at least fifteen sources things like good housekeeping magazine a encyclopedias that are available to the general public about jury all kinds of articles that were written all kinds of public popular game of thrones it's mentioned in there all of these various sources all of which use red gold in a generic way i might note with respect to mr ayres declaration which is also regarded as as insufficient he attaches to that declaration numerous articles in which the jewelry he sells for movie stars is referred to as red gold jewelry not with the registration not with the suggestion of the designation of force but because it's the kind of understood you to say they were excluded because they're by people who bought the children they are by people who are friends of mr heir who bought the jewelry and that's that's an important distinction because what we're not doing is only the lunches oh i'm sorry your honor i must have misspoken i what i meant is that they were purchaser i thought i was addressing your question about when they were members of the consuming public yes they did purchase watches but they were affiliated in some way with mr heir  person again it's the arsenal affiliation that you think knocks and it's one of the things that knocks them out there as i mentioned there are three different things that are ok i understand the rule twenty six you think violation and i understand why you think your client was  you look at the red gold and you say oh that must be of the genesis of metal alway's this is backwards this is not how the process is done what you do is you look at the genesis which is jewelry and then you see how in that genesis this particular phrase is used this i write i watch it it's not watches for a number of reasons one is that's not the classification under which he filed he filed and it's not he's not defending the whole e self realization fellowship church does this very well all of these go about and look at what it is that the the genesis and they all do it the same way and the judge did it that way can you tell me why dr butters that the ration was well not all of it was excluded i understood that the judge only excluded correctly those things that went to the ultimate issue right now it's really important because dr butters was not in position to say anything about the ultimate question consuming public because he never studied it all he did was study the dictionary definitions if you read his declaration he specifically acknowledges that he did not read any of the underlying documentation the case as to what the consuming public believed or didn't believe so all he said was as an abstract base on an abstract basis what is it that i would get as a lexicographer from these particular this particular use of terms in a camp with all kinds of speculative stuff about what red gold might mean the only thing he didn't look at is what how the word was actually the term was actually used by the consuming public so i'm not sure the answer to my question my question is why was properly excluded and the part that was  d and i think you kelly me that it was what well the part that was excluded is a part that goes to the ultimate question experts are not allowed to testify as to the ultimate question this is this is that you know standard disagreement your honor and i also acknowledge that in sume that he's permitted to testify to that it doesn't change anything why because he couldn't have been commenting on how the term is used by the consuming public that's exactly the problem with his testimony his testimony doesn't say anything about the actual issue before the court which is how is this term understood so you think that the prop again you think then if if we don't agree with the reason that was given you think it would improper leaks that because it's not relevant not that it's not relevant it doesn't go to anything in the case you're on the i guess it isn't relevant i mean he can testify as to how it is that these terms strike him as a lexicographer and that has been used in other cases but it's very very very weak evidence of exactly how it's used in the marketplace particularly in a case like this where he acknowledges he doesn't know anything about the about the write something similar to this i don't know whether in that other case dr butters actually had read the record in this case it was clear he had not read the record he did not know any of the information that was otherwise provided as to how the term red gold was used in the industry meaning by that the consuming public and those who sell to the consuming public ok thank you got over your time thank you goes by fast i know thank you you friends there what consumers in fact in one of those declarations is rober many years ago right to buy watches from because he says small business that's how small businesses operate you know the owner the case that doesn't count is relying on says that those types of declarations have little property value right because it doesn't say no property value but why w secondly is  creates a trouble issue a fact but we brought traumatic certificate and a lot of for the evidence we wrote evidence for suggesting those were brought actual consumers who brought a hundred and twelve media articles all of which go to show source affiliation we brought