improper we afforded to the sophistication of the customers the declaration that was provided the doctors really outline the substantial effort that is made to purchase and select and implant and search for implant it goes through three or four levels it takes several months in order to make that purchase in the case the boy gave you credit for that right you did it did but then it is improperly we that factor in that we did against this what it found to be similar remarks and we have a strong issue with that because the board took the position that prevailed was the dominant feature of the p p off mark and there was no evidence to support that other than just isolating that word ignored that he was the lead word for that and that play can be just like really it is a sophisticated market and something that most people go to wal mart to buy i would hope these products so you then sort of wouldn't you naturally shift your focus to the second word at that point no i wouldn't agree with that because there's no evidence that he has used in connection with geriatric surgery or seeing the word ph is going to know if they're being solicited specifically by a vendor the vendor told the doctors have got a product for you and let's talk about it and here's the clinical data that goes with it so that the vendor knows well then then you bring me to another point that that that the that the office in the board have never really reconciled is it why is it that they said they decided to march again says one was prevail for dental implant that was registered before peak prevail and the office allowed p prevail with a broader identification of goods to be bridged here in spite of the registration for prevail for dental implants so there was and we submitted evidence of their party use obviously that's in the record me is it is it a defense that you can raise that maybe their mark shouldn't have been approved well if used to the issue of the what's the nature of the goods of the site and registration obviously with the office looked at the mark and got the application that evidence gets that support it did they use a p prevail and they can see that it was orthopedic implants it wasn't any  under the sun so the argument goes to what was that what is the scope of those goods and what's a clue what are the good for people me i doesn't their registration their registration is not limited to product goes to and that you're not allowed to bump up against something that they're not currently doing but that's within their registration and that's this really sort of supposition that because it seems to me that   peak material has a very specific applications and it's not something that's ever going to be intrusive and dabble my recollection at least is the declarations that spoke about that did not go that far and they sciences case and wine in the track mobile cases if there's some uncertainty as to what the goods are then in situ extrinsic evidence can be submitted and the life science  case is and there was an opposition proceeding so if it's the goods are technical in nature and only basic information has been provided eve can submit its strategic evidence the board has taken the position they have to take the position well that doesn't communicate through some term other than one that seems so similar to what's already in the marketplace that's what's puzzling and well i i think it you know again i go back once you want to confuse people i don't know why you think that but again i made a lots of people use prevail in the medical industry it's not you're in effectively saying that that the owner keeper veil has a monopoly on the work prevails for any kind of implant and i don't think that an accurate statement of law and so we are entitled to select a market that has some appeal to a very natural surgeon which is that you can prevail over the fact that you can't lose weight that's a big part of the market and the market for that so they were entitled to select that mark on that and again there's other people using prevail in the minimally advertised to the public or directive in in re dixie restaurant and said we're going to give it the full scope of what it says and it said surgical implants which is a very simple term one way or that and something of them dental implants which are also surgical and plan did that really does not have any bearing on this case your honor and i think there's was touched upon a little earlier when the board looks at a particular application and registration on the board is not a should be binding didn't that particular application is not bound by what was done in a previous application now we want the board to do to be consistent where possible  where something is going to come up against a prohibition for registration like to see in this case we want to make sure the board does do that when it see that sort of situation so whether that should or should not have been register previously is not really material to this case is there an alternative way where the other side could challenge prevail mark in that and to be allowed to bed sink her mark there absolutely is a way there are actually two ways one way that is kind of a collaborative way where the applicant can approach the owner of the pirates ration and say would you consent to my registration for these particular goods or services and that do consider very strong evidence  that there's going to be no likelihood of confusion over this court's precedents there's also an adversarial way that they could have done it and that is to institute a cancellation proceeding or partial cancellation proceeding under either section fourteen or eighteen and then that would be a situation where the owner of the prior registration could actually appear and defend the full scope of what is registration was if it had the evidence to do that it can convey i'm going to assume that  do they have standing to do that that that would be a good question or are not sure that that particular round would be a valid ground to cancel or partially cancel the dental implants first registration  directive but in the case of track moby ok so what they said was that was a case where they will take extrinsic evidence if they find that the the goods description in the cited registration is  vaguer and clear and they very sensitively i think apply that exception or that's circumstances outside dixie restaurants to make sure that they do that not when something's broad but clear but when something truly does not understandable to someone who is not in a particular industry of them and they they look very carefully at the argument that fire me here in town that this was not a set of situation that fell within that one thing that i wanted to point out was and i think you touched on it earlier on whether the the decorations that they put in the end the other evidence in the record does not actually  say that pete the material peach is not used in specialties other than orthopedists there was a way to p d a referencing that was used in medical implants and neither the very accurate doctors nor the orthopedic doctors who did the certainly there is evidence in the record here the producers are quite sophisticated and that likely i mean no one can conceive that they would mistake the implant come with a key or something for weight loss as some other device right right and that and that's a word that's so strong in these particular circumstances life is that sufficient to trump all the other stuff you discourse presidents have made clear that the issue really is whether or not the customers at issue would mistake what their goods are the question is really whether they would mistake were these goods are coming from and when you were marked with peak prevail where pete means a particular it's a descriptive term that describes what the product is made of that doesn't have really any source identifying significance and so this would be perhaps a different case if there was no agilent prevail were the word agile and was the source identifier and then there probably wouldn't be any source identification problem but here there's nothing about the word piece that tells you it's coming from so someone in a hospital hospital choir administrator might well think that these t got i've got a product could they make that stuff if they think that i'm not saying that there would never be confusion that sort of rejects where i am i was using it to sort of point out that a company name has more sources identify is a good move in the same trade channels assumes the same class of purchases way in favor of a finding of the likelihood of confusion they then go on to point out that the sophistication of purchases of ways against it but then they say on seventeen prevail for quote medical devices namely abdominal implants and delivery systems therefore that the goods originate from or associated with or sponsored by the same and seems to suggest that you could have a narrow  area with you were going to use your applied for trademark and you might have had a different case but perhaps not now because they're saying any even that falls within the umbrella of the surgical as long as people preval stays registered on the principle register or something on that is why the dental implant troubles you absolutely and it totally undercuts the board's position that prevail is a dominant part of the the board one board opinion is in conflict with an earlier board opinion and we just deal with the most recent one no i understand that but but it is and what i'm hearing is that there's going to be an it isn't just my take on this argument today there's going to be a firm is a worse position and i'm troubled by that because it goes against prior precedent of the c p a which is and that's in the industrial nucleons corporation first time p prevail clearly it was important enough to allow the registration of key prevail over prevail for dental implant and it also improperly changes the  physicians who are getting contacted by a vendor just sell this product don't just hear prevail they hear in c p prevail and that goes against the in the markets girl case of this part of the federal circuit so i mean there's nothing more we as trademark practitioners can do then what we did in this case in terms of many evidence of the sophistication of the customers and other things to show that this mark should be registered there has to be frankly search for implant can be a staple you can be in any device whatsoever you put in your body it's a little bit i was thinking about to come over there if it's if it's not about the same food ok what kind of food if someone origination for food for four that includes one mar then nobody else the average duration for any kind of food that has that same word in it you're effectively granting the prior registration or writing grows over that  suppose you would also possibly include implants or cataract surgery if anything else you see we haven't voted yet so i don't want to develop all the search and very polite it's part of my nature so