morning your honor some may please the court i'm david donohue for opponents universal church incorporated the universe church is a christian religious organization with hundreds of churches throughout the united states tens of thousands of regular followers and hundreds of thousands of weekly viewers of this programming pelleas are also a religious organization who usually operate under universal life church but recently began acting as the universal church including at a domain name universal church dot org formerly owned by appellant the district court erred in granting summary judgment to epiphanies in several ways i'm going to focus on two errors today first the district court's  in finding the universal church marks to be generic thereby stripping appellant of its federally registered trademarks and second by the district court's error in granting summary judgment to applebee's despite the fact that you have two really religious organizations using the same mark for a leader to religious services beginning with generic ness the test for generic as the set forth in our briefs is what is the primary significance of the market issue does it identify the product or the producers this is a fact question ill suited for summary judgment and because the united states patent trademark office grant to trademark registration appellant the burden is on apple lease to come forward with evidence of generic miss and also to and he did that with an expert at the very least plus the dictionary well your honor i'll take those and turn the the expert testimony focused on the understanding within the hierarchy of the catholic church of universal church or references throughout time within the hierarchy of the catholic church  going back to st augustine at least yes your honor but but again there's there's no evidence that ordinary consumers of religious services consider universal church to be a type of church these references were references to a concept or you know of all christians or referring to you know all catholics if you look at through the prism of summary judgment which is the prism that we been a term used by millions of christians slash catholics would you agree with that no you're right or not that they did not put in evidence that it's been used by millions of christians and catholics they put in evidence that it's been used enough not enough it's not enough because it's not enough just to say that a term has some historical significance or or a definition otherwise no descriptive marks of the right register will they'd all be generic the proof has to be that the term is is first of all generic to ordinary consumers but also generic for the goods and services that issue it's not simply enough to say well this has some religious significance that the six seventh and eighth circuit sort of recognize that in cases we cited in our brief general conference corporate seventh day adventist foundation and community of christ copyright corporation it's very common for religious organizations to use religious terminology in their trade once the expert court seven was referred to the longstanding common use of the phrase universal church in various contexts demonstrates without question that the phrase has been in generic usage over two millennia the scryer the church and the whole as a whole throughout the world why isn't that enough at least evidence of these to put it on you to generate some well the expert also admitted that he had no understanding of whether ordinary catholics let alone let alone let alone the public in general the non catholic consumers of religious services had an understanding of universal church he he did say that in his report but it the that statement does not stand up under scrutiny when you look at the limitations of his report that he  admitted as to descriptive trademarks in general they they always have at least two meanings there's an initial meaning the term and its descriptive use and then there's also secondary meaning here the the  united states patent trademark found that universal church has a secondary meaning among consumers another one in other words that identifies a producer not the product that finding a secondary meaning at least as to one of the two registrations issue here cannot be challenged because the trademark is incontestable and it's not much different than american airlines american airlines clearly can be used in a descriptive sense to describe all airlines owned by americans or that exist in america but it is their secondary meaning that's attached to the term and so when used as a brand if it identifies a specific brand of airlines it's no different here with respect to universal church  of applebee's registration of various universal transformative demain names coming immediately after they were denied registration for their trademark universal life church so immediately after that they they went on the spying spree they identif themselves as the universal church it's a foot an image in our brief screen captures showing their reference to themselves as the universal cure you have minutes of actual consumer confusion there was testimony from a few witnesses their word on that yes they do offer online or ordination services but at the website universal church dot org at least during a portion of the time that's that provides the basis for the likely confusion claims here they were they were not advertising ordination they were just providing information about the universal church and saying that you know we're all connected spiritually referring to their ministries as as universal church ministers but in terms of ministers as part of that those services but they also provide counseling services religious counseling services drug addiction service counseling services and the like everything you would expect of a church of a church in the modern looking for spiritual guidance so there is there is overlap your honor also in terms of the both and they'd like the confusion analysis as well as the district court's finding on generic miss the district court  blatantly in relying on bare corporate listings of listings of businesses incorporated under universal church this this court's decision in morningside group cited in our brief prohibits that type of  reliance on corporate listings i reserve time for a bottle  semantic notion that universal when used in conjunction with the church is per se descriptive and not generic because it is an adjective and not a no but courts in this circuit the seventh circuit and the ninth circuit have held that generic terms need not only be nouns that directly name a product but may also be adjectives that designate a distinctive characteristic of a genus of products and that rationale is rooted in this court's holding in c s publishing versus st regis publications which stands for the proposition that competitors need to be equally able to accurately describe the goods that they sell or the products or services that they offer and this is a little bit of an idiosyncratic case because we're talking about religions but the genus of product he clearly is a church and being universal is a characteristic that any church should be able to adopt and so the appellant can't take out of the public domain the notion of universality as it applies to a church specifically in the christian context the phrase universal church has a very specific historical residence the theological history to people who seek and provide the just worship services today would think of as a universal church of his i think his point is there is no showing no evidence that the relevant public views it as the universal church use the universal church does nation as something other than what is three points on that your honor the first being  of experts testimony simply inaccurate he very clearly testified that at minimum catholics understand universal church to refer to the entire body of those people who have been baptized  as followers of jesus christ whether they be catholics are not and he testified that that is a common catholic understanding and the palance expert ratified that understanding that catholics at least understand the term in that way and not in significantly catholics account for approximately twenty three percent of the u s population but in addition to that  own expert also testified that all other denominations have an understanding of universal church in a generic sense now the appellant's expert put a slightly different feel logical bent on it what he essentially testified was is that there are certain even jealous christian groups that view the universal church as meaning all followers of christ which will be known upon entering the kingdom of heaven meaning we can identify who those people are until the afterlife but without going too deeply into the theology for our secular legal purposes that is additional evidence that there is an understanding beyond catholicism of universal church having a generic meaning for the interconnectedness at minimum of all followers of christ and appellants expert conceded that that understanding at least of below conceded and this is on page two thousand and forty nine of the record that the apostle paul used the phrase universal church to describe quote the whole body of believers in christ so the second point i was a bit long winded on the first point but the second point that i want to make with respect to the balance argument that the police haven't shown common usage what's really at stake in the appellant's argument  is what type of evidence is necessary to show public perception of the term and what the appellant's position basically is is that you've got to go out on the corner and do man on the street interviews to figure out how people today understand the term but that's simply not true and there's a fourth circuit case masters versus landry seafood that really puts the clearest the finest point on why that's inaccurate in that case the court was discussing the generic term crab house and that case the defendant offered no consumer survey supporting a finding of generic cism and in fact the plaintiff put in a consumer survey indicating strength of brand in the local marketplace but what the fourth circuit said was is quote the notion that whether a word is generic depends upon consumers understanding of the word is based upon a scenario involving a coin word for commercial product that is alleged to become generic through common usage but in that case because the plaintiffs hadn't invented the word crab house but rather they had plucked it out of the public domain a consumer survey wasn't necessary what you can look to is you can look back to the public domain to understand what the meaning of the term was and how well that's a fourth circuit case this court in harley davidson vs leni has applied basically the same line of reasoning though not stating it as explicitly in that case the court found that hog h o g a is generic for motorcycles and told harley davidson that they could not claim ownership over the term hog for motorcycles and all they looked to in that case was dictionary definitions and magazines and newspaper accounts here in addition to dictionary definitions there are no magazine and newspaper accounts but instead what there are are thousands of years of texts across varying religions using this term in a generic sense to capture the broader notion of a larger church beyond a small insular parish of churches and if i can very briefly turn to likelihood of confusion as i see my time is is starting to run low what appellant seemingly is pointing to principally on likelihood of confusion is the concept of bad faith and they say they've begun only now meaning the police have begun only now referring to themselves as the universal church with a bad faith intent honor i believe that the expert actually testified to that because he said that due to the fact that catholic being derived from the greek meaning universal has so now through the splintering of protestant denominations has become so  generically used that now the catholic church self refers to itself as a proper noun as the roman catholic church to differentiate and in fact that's actually an issue here as well is that really appellant's church isn't the universal church it's the universal church of the kingdom of god and the reality is that they have a trademark registration for that larger phrase that different not an issue that is not at issue here but the their trademark registration for that for that other trademark is in the record at page fifty nine so it's not as if finding the narrower phrase universal church is going to somehow divest the appellant of being searching for that predecessor group and fact the president of the of the current universal life church was actually originally ordained in that predecessor group the universal life church and so in an effort to ensure that they captured misnomer traffic of people who were looking for that predecessor entity they began using the phrase the universal church but only with a proper trademark disclaimer identifying that they were not the same as the appellant i see that my time is up most of the bench has no further questions i will rest on a brief thank you very much thank your honour's i'd like to start with and just by addressing a couple of misstatements by my opponent here paul never used the phrase universal church universal church does not appear anywhere in the bible and there's nothing in the record that says that paul use universal church there's a reference to another resource talking about paul's use of church when one paul refers to church church and a couple of letters in the bible that paul must have been referring all there's no testimony or evidence in the record at all that that that's why a pet at least started using universal church in two thousand and ten that that's that's purely an invention of council it's creative but it doesn't substitute for evidence going back to what judge was asking about before the test is the understanding today actually the understanding of two thousand and nine or two thousand and ten when when apple e started using universal church the test is what ordinary consumers understand universal church to be not what theologians understood understand today and not with the understood a thousand years ago this is a much different than harley davidson versus groton alley in that case there were the immediate decades prior to prior to harley davidson claim to trademark rights there was rampant evidence of use by motorcycle enthusiasts to refer to the very product at issue motorcycles as large my motorcycles as hogs and harley davidson itself admitted that it was aware of that usage and tried to desist dissociate from from from from the term hog so that's that's a far cry from what we have here alessandro seems to suggest in his testimony at least and maybe maybe not as expert reports not clear that he he is  is testifying about what he believes are the views of most roman catholics and maybe extended beyond that people who are not christians who are not catholics in his deposition he t admitted that he had not research what ordinary catholics perceive in what they know he was in a sense he appeared to be guessing and that's throughout his testimony when i asked him would would ordinary catholics see this is answer was no and in any any research to determine i'm sorry it's the page you i'm on there are various sites that we strung together and this is sixty seven sixty eight and sixty nine is the area of questioning but those are the those are the areas that you point to yes yes your honor just see if i can find the no separate test for coin terms verses terms that exist in history a term that exists in history as i said as i said before must be judged in relation to the current consumers as well as the services that are at issue it's not enough to say universal church has been used by some people to refer to all christians when the the genus here is not all christians the genus here is a really religious organization offering