morning we have five cases on the calendar this morning in trademark case two veterans appeals one of which is submitted on the breach and therefore will not be care services namely an inpatient residential lifestyle evaluation and improvement program i would like to focus in on others three factors from the departed case that are relevant in this particular case i'd like to focus first on the second dupont factor which is the similarity or dissimilarity and nature of the goods or services that are described in an application or registration like to emphasize that this factor focuses on the description fits in the application or the registration and so we need to look to the goods and services description of the site address just ration  when we're evaluating the second factor when we look at the goods and services in this case we have one case where it is services involved healthcare services in the form of an inpatient residential  i would agree or overlap i would agree and what this court found in the case of china manufacturing versus the ritz hotel is that there's really two steps to analysis when you're comparing goods and services it consumer would be likely to confuse the goods with the services in the shannon case that was a case that involved a hotel that was providing cooking classes and a previous registration for in the form of kitchen textiles and the trademark trial and appeal board rightly noted that you would obviously use kitchen textiles oven maids hands howell's aprons in a cooking class but that wasn't enough there health care program to have written materials or brochures for guidelines and that's of that sort of distribution i would agree and in fact to the specimen of use for s hospital includes ten bullet points of things that are included in their program and it includes an exercise complement but it's only one of ten different bullet points maybe there's one that's kind of fifty fifty so maybe twenty to thirty percent maybe ten to twenty percent of a residential life found through the program is going to have an exercise complement but there always are dozens that isn't that substantial evidence of some sort of related  a versus fight a lay and the the court said we have to even though it was good versus good we have to find offensive relatedness something that would show confusion between dog treats on the one hand and human treats or snack foods on the other hand and this kind of things that they look for or that there were manufacturers that sold both types of goods so you could have the same party providing nations on their free to lay snack packages and they said you see here's a sense of relatedness we could see how a customer might think the free lay might decide to get into the dog tree business because here they're doing they're putting dogs on their packaging saying how do we we know that you argue that pain helena targets sophisticated consumers because of the level of expense and some of that nature of the activities that they only targeted those are or did are children able to sign up for this program if you look at the specimen i would say they target they target adult i don't know if they may have exceptions for children but they're addressing the type of diabetes that you don't get as a child usually but it's more of a lifestyle related diabetes hypertension would be unusual for someone for a child to get although possible so i could see there be a possibility and i would say just a little differently not so much with the consumer sophisticated although they might be but they're careful and this is the third department factor that looks at the sophistication or care with which the customers are exercising when they experience the marks in this case the customers and are very careful when you look at the specimens of use of our application the website has lots of information because people are going to make a careful decision before they decide to make this major commitment ten days basically check themselves into a hospital so that they can get their lifestyle related illnesses fixed and so they are they're exercising a high degree of care and that's what the board actually found was that consumers would exercise a high degree of care which is the same third department factor but then the board found that the consumers on the other side of the equation would not exercise aside what they found and that i would dispute is once they're in the program they might not exercise a high degree of care when they're covered with printed materials and what i would say about that is that encounter first the customer has been careful and they've seen the website information but then they're going to spend ten days immersed in the branding environment of the hospital immersed in the program they might not be that sophisticated of of a consumer on day one but by the time they come out of that program they will have seen the market take the way that same saline uses it and they would be able to readily distinguish spelled the ten one zero instead of t and those are small different groups but they are differences and they do make a distinction in the shen case the marks for identical ritz versus ritz and also in the coach case coach  services versus triumph learning that was also a case of good versus services and of the board and the score found that the marks were identical in the parents and they were identical in sound but in that case they found that they were  difference in the in the marks overall because of the connotation of the marks i would like to drill in a little bit into this point of a sense of relatedness because we have to go one step beyond whether the goods are used but the services we have to find the sense of relatedness and the examiner cited lots of evidence over seventy pages of internet evidence from hospitals and other companies that provide services that are like that of st only one hospital and what they found in that evidence even though it was there was lots of evidence i would submit that the weight of that evidence should not be measured in that's right and so we're looking for substantial evidence of the sense of relatedness and there are seventy pages of evidence but when we look at that evidence we see that in every instance with every page there's one of three weaknesses in the evidence that makes it not political except for there's one instance where it does not have those weaknesses in many instances they cite the good that are being provided by a by one of these health care service providers but the goods are not the goods that are actually described in the registration second dupont factor says that we have to compare the we have to look at what it described in the application or what is described in the registration and the goods description in this case is not just printed materials if it was printed materials and they would be encompassing all of class sixteen and all printed materials but they limited their registration to five specific categories or printed materials they specifically limited it to printed manuals posters stickers activity cards and educational worksheets that deal with this activity and exercise and so when we look at this evidence a lot of the evidence for instance  might be directed to a newsletter well a newsletter is not one of those five categories of goods or it might be a diary diaries an interesting piece of print it is paper goods but a diary is usually empty and you fill it with things so it's not really a manual it's not a poster it's not a sticker it's not an activity guide and it's not a good educational worksheet that occasional works you would have some educational component it wouldn't just be an empty diary so much of the  there may be something so that might qualify as that but there's weaknesses in this evidence that make it hard to evaluate that almost all the evidence doesn't show an actual piece of printed material but it's a list of things that you will be provided with so we can't actually look at the evidence and say is this a worksheet because it's not there there's one instance where we actually do have a piece of evidence that is related to exercise it's on the list of five goods or services and it's related and it otherwise qualifies and when we look at page one a one sixteen of the appendix it shows some diagrams of someone doing exercise and it has instructions for how to do the exercises it's an example of where we can go beyond just showing that the goods are used with the services so we can actually evaluate the sense of relatedness when we look for the sense of relatedness a page a one sixteen course is about takes in to take ten you've taken twelve yes you can continue to save the rest for you as you choose i'll just mention about that piece of evidence it doesn't have the trademark on on the good so there's nothing about that document that gives you that sense of related don't think that matters i said to mark here he began are very similar even mr heisler comments that there are small differences between them small differences are not enough to render them just similar for purposes consumers going to encounter the goods and services under conditions and circumstances in which they're going to think that these goods and services come from the same source because of the similarity of marks and have an effect to the to the good s i think we are talking about fundamentally different things are when one is part of the children and encouraging them to give up another for ten minutes a day and the other is a very sophisticated program that i trying to induce adults to spam ten days in a high end subsume your i respectfully that's incorrect but you have to look at what the actual identification in this registration is it's a registered mark it's entitled to the presumptions under section  act for what it covers on its face we can't read in restrictions from what might actually be shown to be in their specimen of use all that is covered here are printed materials and worksheets to deal with physical fitness they're not restricted to children they are not restricted in any channels of trade or in how they're used and in fact the evidence shows that intended manuals and worksheets of the type that are covered by this registration are provided as part of lifestyle  help improvement programs that are rendered in a hospital based setting you really need to look no further than seeing holiness on stuff and to confirm that these goods and services are related in the sense that matters or likelihood of confusion criticism may take you to  twenty eight twenty one where as they feature in here that they say with their small class sizes you're going to get five things you're going to get individualized attention and they're on page eight twenty one you're going to get a comprehensive risk assessment you're going to get an exercise prescription you're going to get you're going to leave with a lifestyle medicine roadmap designed specifically for you and you're going to get a take an action plan and that includes healthy habits and exercise tips illustrations and instructions you are getting a manual if you will that has jury alphabet feature typical fitness in them consumers in that setting are going to reasonably think these materials come from the same sorts of services and so it's that sense of relatedness that matters it's not matter whether consumers are going to confuse the goods and services it's whether they're going to encounter them in circumstances where they're going to think they come from the same source and the do the board found that patients considering applicants services will exercise a high degree of care but then it went on to find the degree of care factors neutral on what substantial evidence supports that conclusion well they i think they correctly found that in the hospital they said if you're going to give up a period of time going to take a break as it were from your life for a period of time to improve health you're going to exercise a as fair degree of care in making that decision but when you're looking at the printed materials manuals work she took to the cards dealing with physical fitness to improve your health and fitness you're not going to exercise that same degree of care as you would when you're making a huge investment to go live someplace outside of your house and make the investment so you use a high degree of care to make the investment but the minute you get there you become happy i mean not that doesn't make sense i don't i don't think that's what the board was getting at i think their point is that i'm there i made i made this big decision i'm here now but now i'm getting my my masters my notebooks my written materials my exercise description my work sheets that i'm going to use during this program and have as a resource when i leave and i exercise you know great to keep degree of care when i'm looking at those printed material that is the point that they're making and just because you exercise a high degree of care for saying when a service is it doesn't mean that you're going to exercise that same degree of care printed materials but i thought it was even if you know what evidence is in the record that deals with this because we have let me clearly the board the board recognizes and i see we we are all in agreement that you know somebody signing up for ten days in a hospital program that they're going to exercise a high degree of care but then to say well what it doesn't matter because once they get the are you know they'll look at materials and they will be very casual what what supports that conclusion i think just the identification of of goods does the fact that it's just printed materials generally speaking if you're looking for a magazine or a book you're not being as careful and considered as perhaps you would be when you're looking to convince a conclusion but you know the materials themselves are a little different for you know posters stickers printed materials a little seems to me to be hard to support on that record i don't think it is your honor and maybe this will help to to think about again because these printed materials are not restricted in the channels of trade and consumers could encounter these and something like that are going to go on a website looking for stickers and that's then that's a different target audience they're not going for stickers but are they going to look for manuals and worksheets and printed materials that are going to help them learn how to exercise and be more physically fit i submit that they would i mean the commitment to saintliness program is a big one or you might start small by learning how to exercise before you're going to vote going into st let's talk about it and that's channels of trade you say that that because both the ability to to find out about say timeliness program and sign up for it and the ability to to get these take time school related material are accessible on the internet that therefore by definition the same channels of trade and that's the only channel that was discussed does that mean that from this day forward channels of trade is an issue that that falls out because everything today is available on the internet you know i don't think that's true i think it's if people are going to go research things on the internet and find things in type market they're going to come up with these two things that's relevant but if they're sold through the internet and there's evidence that shows that they are it is a relevant channel trade i think you're the only one that was discussed so so really i mean it's true though if you take this to its logical stream that century unless you came up with some products that you couldn't access information on on the internet then you'd always be able the board would always be able to say customers customers which include an average consumer looking to improve their health and fitness but also include hospital based residential programs just like the holiness there's nothing that says that these programs necessarily provide and create their own printed material to deal with exercise and fitness they could well be a customer of the printed materials here and consumers are going to then confront these two things under circumstances in which they would absolutely think that they  similar source or somehow connected or affiliated there is substantial evidence of the court the board's findings on the two critical factors of the similarity of the market similarity to goods and services so even if you disagree on the sophistication of the purchasers this it's not a controlling factor and the boards i'd remind you find sounded fairly neutral so even if it would favor them slightly it's not enough to find the fees are not confusing as to appearance sound connotations and commercial impression i want to emphasize there is a test to consider the marks in their entirety so everything about the mark has to be evaluated this is similar  to the trademark manual examining procedure which require which specifically says the punctuation is presumed to be part of the mark so there's a presumption of this exclamation point at the end of the take ten mark of the material part of the market and we use the dupont factor to consider the marks in their entirety as if it's a fact to be considered this argument was raised with examiner and with the board in both the examiner and the board never said anything about the exclamation point so what about the exclamation point in your mind  has a commercial impact on consumers it's two things that in conjunction work together one is when you see the mark visually you both see the exclamation point and if you're like me and you your lips move when you read you're kind of singing it a little differently you're getting a different impression when you see it you say it louder you say it louder with with the with the sound i think it's a bigger deal when you cooking class and in the shen case there was no finding that the consumers who are sophisticated are careful the marks are considered to be identical in this case we have marks that can be distinguished and we have careful customers we do have goods that can be used with the services but we don't have the sense of relatedness that shows that there is a likelihood of confusion