you know they found it was merely descriptive they found that collection describe the manner in which furniture and custom construction of homes were marketed the board has has has found in the past a few dition of the descriptive term to what is otherwise more recently a very recent incident from two thousand and sixteen in re integrated imbedded from the team to be a presidential decision found that the more far that the term group was descriptive of the services offered that they were offered by  generic issue and didn't up look at the descriptive issue exactly it's in it's specifically the appendix thirty six you'll see that ok so i get this opinion is certainly not a model for  furniture exactly in that context i don't think understand that they have to apply both even if they did it discussed the same evidence separately with regard to descriptive words and there i believe that finding the common descriptive is a is a term that both the board and i believe this course is an ask used security unfortunately we're talking about merely descriptive terms i believe that finding it is really getting again to the rather collection is generic which appears to be really the focus of the tbs entire opinion was collection generic it really didn't even consider what the significance could be of collection what quote from the caps decision do you want to point to skew to drive i would point you to it's page thirty six of you and it's in the board's decision since the term collection is not generic the addition of the term to the surname bernhardt does diminish the certain significance but then it and the correct way out i mean if we're going to be this nitpicky ensign in fact you're just going to get the same result they're going to go through this evidence and say collection is not merely descriptive  custom homes or furniture i would actually argue their findings in the t v opinion appear to be consistent with a fine you can merely script in this they found that collection is descriptive of the manner in which furniture and custom construction of homes collection was descriptive we were arguing that proteins descriptive because of the way that it's use not initially commonly but just the fact that it is stripped of anything any argument related to common use is getting more towards it does this really descriptive term affect the to describe or convey information about them one problem of the hutchinson case is that the definition of description i find that test a little baffling because if you know what the goods are if you know that's what means it is sold as furniture and you see earth her collection then it's not far of a leap to say collection in this case means furniture but if you don't know i mean collection that to me does not immediately designate a furniture or a custom homes well i would argue it would even in the abstract but if we're using the test that has been created when you think an average person would look at the work collection and think that it designates furniture  well not necessarily maybe among their guesses but the definition of could have multiple guesses well even if that was the case the standard for a script of this doesn't require the consumer to be guessing in the abstract it ask whether the consumer who knows what the goods are in the difference is if it was earned her uniforms would you imagine her unicorns conveys information about the furniture sitting in front of you i don't think you would it's very hard collection there's no inferential creative meet the needs to be made for someone to connect the trunk collection to the furniture to see fun though you know if i got a phone call showed up on my id as earnhardt collection i'd assume of the bill collector well and collector who called you then you would again you'd be connecting that correctly but again it's not we're not talking about determining whether collection is descriptive of furniture and posting construction of phones in the abstract or not asking someone to look at a flash card and say the first thing that descriptive the standard is talking about someone who knows what the goods are it's not an abstract inquiry i'm not sure if legends and was trying to say that it was i just think that the that the words that were used in that opinion did not hammer home the fact that the take a step back and look at the work collection in combination with earnhardt and against the listed items of goods and services way whether it's still primarily or something that gets  can't say anything that you said ok so then everybody in the room agrees that when it comes to the rule of hutchinson technology the fact finder here has to determine whether or not the word collection is generic in fact conclude it's not generic it still has to go on and find out whether the work of lection is merely descriptive in the context of these goods and services i think that's correct your honor ok and that's what happened in well now let's go to what happened here right i mean i read the structure of the board's opinion and it looks like it does an analysis on generic this includes you know the work collection is not  and then it addresses the other sides or argument about whether collection is merely descriptive and that's where things get hazier and possibly things go haywire and felt like to me that the board was saying as long as it's not generic then the mark is no longer primarily his surname and in so is we agree that would be incorrect and if that is a legal heir then why would we remain i'll let let let me let me say that the court in the then immediately the board gets back on track and quotes hutchinson technology and quotes it twice and i do think this is important when we get to the appendix thirty seven this core focuses on the common usage rationale when you get to the appendix thirty seven i'll quote a poser has submitted evidence to establishing the term collection is commonly used in connection with both custom home generic honest argument that it already rejected in the earlier paragraphs in the earlier section of the opinion when the t tab opposer argues that the common usage renders the term generic in now the everything the board says after that is in the context of once again repudiating what he already repudiated a few pages earlier about whether the word collection is generic and then if you go back to the bottom of the thirty six to the top of for determining whether adding language to his surname alters the significance of the surname in to me the only conclusion i can draw from that sentence is that this board is concluding th your honor i'd agree that the board goes back and forth discussing generic and descriptive us i would not agree that the board ignored because it expresses expressly stated be picked apart but right it is it is reasonable to conclude based on the fact that the board addressed opposers descript in this argument and dealt with it by citing this court we were to read this your way and say that the board concluded that collection is not descriptive when it comes to these goods it didn't explain why it reached that finding that it's not the strict i mean the one place where i see something interesting from the board is going back to the generic in this section of the opinion of a thirty four or thirty five brands or group of uses it is not generic and so now here is a place where i see the board indicating that the market for the work collection may be descriptive but it's not nar and that is the only analysis i see of actual comment on descriptive means you're on of the troops a bit that when they went when they talk about common usage when talk about kind of the border talks about common usage of pace thirty seven that is the label for descriptive this from hutchinson that's that it answers the question it answers both questions that actors both the finding that it was not descriptive the much more reasonable conclusion is that there is of finding i'm sorry there wasn't a finding of descriptive in this i misspoke much more reasonable conclusion is based on quoting the is what what do you think they were trying to say there like they were they were saying that you have to look at you have to look at generic ness and you have to look at descriptive syntax and didn't change that task even though it introduces the sentence because of the of the issue of description as was discussed i mean to me that sort of makes it sound like the board was saying that that was something extraneous and ancillary and perhaps even a that's very clear from you i agree then the next question is does the board here understand that and maybe it doesn't i think i think that the board did understand that i think and i think that's why i think what happened here was that collections in some cases were considered to be just descriptive in other places where the registration went straight through with the word collection and perhaps a dip added to a surname what's the principle that we should take away and how do we draw a straight line through all of those i don't know i think it shows how examiners but i don't think any of those cases were presidential but there are examples  don't think that those of the i don't think that the nonprofit amount of time now you can from my finish that those are not those those are not precedential they're not very helpful i think that as a matter of practice the ones that there are so many that recognize collection but they're not contested so i don't find those are of they sure as a matter of practice but they don't really show the rule of law that it really is a case by case analysis and here collection the board looked at the argument and they found that collection was commonly used with our own heart but just like technology in hutchinson it didn't mean that it did not describe the when i think they were perhaps trying to distinguish whether you know something's not generic what is it the next step would be descriptive so there were these findings consistent with the fact that collection is merely descriptive with peers the court did was even though it found that collection was really cheap if it did not understand the significance of that finding that's why it's so casually referred to it seems in the opinion they didn't understand that now that we've got a really descriptive term that doesn't end the inquiry we need to determine what the primary significance of earnhardt collection is to the purchasing public but the finding that collection describes the manner in which furniture is marketed and sold it describes groupings of custom homes those are findings that collection is descriptive that's where is that that is that that may be descriptive sentence this it is it's page thirty five thirty six  we're talking about the same two pages right i think you have some good sentences to pluck out you have some good sentences to pluck out i don't see anything in here where that where the board says the test under hutchinson and it's solely determined whether it's generic or not and if it's not generically it can add to or it can diminish the significance of the survey do you agree that there's no explicit statement that that's the law i would agree with that what we're trying to do is infer on various but we don't reverse cases to get a better opinion just because we don't like the analysis if it's not harmful air and i if there's no legal air and i don't see any explicit legal error in stating you only look at generic s then what we're looking for is is or substantial evidence to support application of hutchinson yes i understand your arguments there  i would argue that you know when when when the board says the term collection describes a manner i understood you to reference that one of the statement says may be descriptive the second statement about customs or construction of home says collection describes the manner in which the services are offered namely grouped by features or by type of architecture even if that isn't and explicit binding of descriptive in this which would argue that it is if this case was remanded in the court and the board found the same in the same facts i think it would conclude that collection is merely descriptive and except that when you go and later and are were just quibbling over different parts of the opinion you don't want to present where they said it's not because they said it's not the common descriptive or generic name and i'm happy to submit something the briefing on the fact that common descriptive has been frequently i mean is a honestly with an opinion this badly written if you think we are really going to place much significance on the different use of the speech terms i don't think they understood those two terms different but i even say that it's a bit evidence but it certainly is not clear from the opinion that they're using them in two different ways i admit the opinion is a model of clarity i do believe board knew would have a saying when it said common descriptive or generic is it common descriptive is a phrase it's been used frequently as a as a proxy for generics as i'm i have no concern that the word didn't understand what it was saying there are no i understand that cuts against saying that the