disputed it should be as the board said the preponderance of evidence standard the question here is whether the prior use or rule in for mr we shift that burden of proof from the plaintiffs onto the defendant if we conclude that the d t v's analysis here and all of its fact findings ultimate conclusion that there was confusion did not rely on the prior use or doctrine but then just sort of said it after it reached its conclusion sort of like a cherry on top then the prior uses act and really is an implication is that right yes i would agree that if they just said it after the fact that it it it didn't have any meaning they just put it out there as a as a cherry on top then it's not implicated in the case but they did say it i assume they said it for a reason and it's impossible to tell when reading the opinion  if that affected their or their judgment in every single case not just making the findings of fact for each individual to pot factor but also the weighing of everything that if you have in the back of your mind the the high goes to the to so called senior registered mark and then every time you're looking at the similarity of the marks the channels of trade every single dupont factor you put your thumb on the scales and that's not what supposed to happen particularly particularly where there's a registered mark that has the presumption of liberty and that's a statutory presumptions illiteracy fifteen u s c ten fifty seven novels  spent a lot of capital doing that and they're entitled to that the presumption if we even if you don't think that the priors rule is implicated you still have to look at each of of the factors and one of the major points here is the marks themselves with the the prior user will receive gifts and you make a lot of argument about the boards refusing to amend the identification of goods in the dissensions in the channels of trade a class of consumers that you run into a problem here because the registration the other registration in issue has a very broad identification to give that identification of goods it's full scope and that in compass is whatever channels of trade might be appropriate for the candidates regardless of what they might you yes your honor and i think you know i acknowledge that is what t v a p president says there is a factual record that shows although there might be some overlap there are different channels of trade so they are not identical but that amended registration is important for a different reason and it goes back to the similarity of remarks when you look at what the mark is supposed to mean you have to look at it with both a mark and what description is in the amended description which is chocolate namely premium belgian chocolate truffles when you have that truffles with knuckles it's going to connote truffles and when you have that there's not going to be it has a very different admit that even used peanut they had no explanation for what the mark meant but obviously when used with not candies the connotation is peanuts or at least it's not and the courts found that the at this is kind of were you look at the prior user rule this whole thing kind of developed the earliest kind of some one application of it is that listerine case which burden is on the the defendant or the junior user after they have the registration after they've spent capital that somehow they have to prove that they they they haven't infringed when you used the prior user  if you amend the registration so that it's chocolate namely premium chocolate truffles that gives them meaning not full of very clear meaning that it means not some truffles and that that's analysis of the likely to confusion factors but where it is invoked the board of courts of looked at and said this is a close call in this close call we have close cases we're entitled to a vote prior usual to say that we're going to give the prior user fifty fifty one forty nine i guess you can but if the case law looks at it it's difficult cases to decide and therefore they rely on priors or looks like the trademark board pretty quickly dismissed the p d dash marks other than this obscure nos mark which the president of the other side said i'd never heard of before until doing some research here and so if you look at the marks and tired they're still confused at least somewhere similar to this court's ruling and  the baking strips versus landing strips case which is the midwest through its case there you had parts of the mark which were arguably descriptive strips but the court still found it likely to confusion because the other dupont factors here products are identical despite arguments to the contrary the evidence shows that these are low cost imposed purchasing products sold in the same stores the evidence shows that in some cases we are carried in the identical stores thunderbird stores so our products are there in the same us together so when you look at low cost impulse products that increases the likelihood of confusion if you look at the channels of trade in classes of consumers there's no  premium chocolate product that's not in the record there's no premium chocolate product or low price products second of all there's no restriction on our clients products in the registration the cornerstone is looking at the face of the registration of both one if the prior use or rule was applied in this case why did they say it and if they did say it i think you have to you have to take it seriously that it was applied and you opposing counsel seem to suggest that yes the prior use or rule fact shifts the burden of proof i don't think that's the case but even if that were the case and even if the prior use or rule was something that that was permissible it shouldn't be used in this case where there's not a famous mark and there's no evidence about face up second of all with respect to the other barks notables that was mentioned that  the president of morris national never heard of it that's true it's a small mark but president of morrison astral also never heard of peano's before this case so that goes into show we're talking about small candy companies small markets they're not famous lastly i'd like to address the the bacon strips versus wagon strips you know when you're looking at likely to confusion you can you get the case law you can look at these marks were found to be similar these marks are not to be similar it's hard to tell exactly what they based their decisions on but with respect to bacon strips and wagon strips