docket number one six one two eight five in race star when they found they like you argue that a cup is different than other forms of glasses as mud snifters tumblers setter i argue that it is a specific type of drinking vessel in the same way that the item get by walk into a seven eleven and seemingly recognizing this unilaterally and without any evidence we broke that definition so that the definition of a company became a small drinking vessel and even on that score we'd only meet one of the two qualifiers as our products not small there is nothing in the record to justify referring to my client's product referring to the fabled cup mark which is evidence on the record that there is at least a difference of opinion on whether this mark is merely descriptive and in the presence of that kind of a disagreement board said well we can make the decision based on our own experience of the marketplace but that's completely arbitrary it can't be rebutted it can't be argued with can't even be discussed and in this case the evidence does not support the finding that was put forward the other issue before this court or one of the other issues is whether or not my client responded to the questions but forward by the examiner and and by the trademark manual of the examiner of practices stand for the position not only that it is that you would reject something like this if the material is left out from the examiner and also from the br those cases specifically mention that the wrong that was done was that the applicant refused to present refused to respond to the examiner or address the issue in their briefs how do you how do you deal with the examiner physical resemblance to a cup as we stated in our in our brief your honor that was that was in our full writing it was i was misstated by me using the examiners language it was in ever it stated in the record that it was descriptive the examiner certainly was within their ability to put that information forward and provide evidence on that on that score and the absence of evidence that is merely descriptive or country or wors yahoo search for cups with straws right so so quite a lot of the items here look like yours so why is that not evidence that  items there are basketball shaped items football shaped items baseball cap guidance and even something that i can't quite identify on page one of eleven that looks to be a series of drawers i'm not and it's going to lead to a different result and without knowing how we get to these results at the very least this is very minor evidence and as i say it's not relied on by the t t a bit perhaps for that reason and for the proposition that even if this information is delivered the jury in the appeal process it would still be considered and that would not be grounds for throwing the mark asked and i think everybody agrees that at least at that stage it was  my client without counsel but it could not be more clear and the trademark office says the same thing that it could not be more clear from the description that in fact it does produce a paper we've never denied blackboard which would show that not all items which are cups have to look like your slurpee cup with straw sticking out well i recognise but it's but it's certainly in that body combination of the to work correctly so what's the new and unique commercial impression that you claim is created well it is our ideas our contention that the phrase vapor is well first off it was when we created it unique we is you know it may be and again this gets the issue of whether it's descriptive or not why why would a consumer purchase an item like that in that particular shape well i'm not i'm not sure of i can't speak for all consumers and i'm not sure how that plays into the application process our it is marketed for for convenience for confidentiality pray because somebody else think it's something for holding beverages etc to basically a small container for of a beverage there is no reason to take out all the descriptors unless they do realize that the exam is definition does not meet the not true your honor with all due respect it is but in reality it is exactly the same product in the description it is simply phrased differently they refer to smoke but even the definition of vapor put forward by the examiner ok let's begin where he left off i mean i get the argument that you know two different marks are two different marks and we shouldn't you know assume that then how would you rule on one is how are you going to rule on the other but what is your explanation for why  treated differently th you do that well for the reasons that we've had in our brief we think it's irrelevant how that application is treated but we did offer reasons why it's different they burrow is not the word vapor so if there's sorry june twenty sixth twenty four to the examining attorney maintained the information requirement so there is that application is still under consideration and there is no reason to presume that the exam a tourney is well aware of what's happening so the shape is what we're concerned about here it doesn't have to function as a cup it doesn't have to hold liquid it's sufficient it consumers would upon viewing stars goods marketplace understand they have described it would be intentionally confused to believe even in the coffee world at least my mother used to be appalled that we wanted to drink out of mugs because she thought it was much more polite to drink out of what was formed like a cup isn't there a distinction between mugs and cups i don't think that there is i think that those words particularly coffee context can be used interchangeably but even if there is again it's not about are we meeting the semantic dictionary definition which by the way does include a definition of being a couple like jack to it's pretty broad so it doesn't have to have a hand all it doesn't have to hold liquid has to be a cup like object and so i don't think that if even if a mug might have different characteristics say can i ask you about the other issues here which presumably doesn't matter if you're right about the merits but what concrete difference is there between the information that they submitted and the kind of putting it in the right boxes information that the examiner appeared to demand what was missing in the information  to justify the idea that questions were not answered as opposed to questions were not answered by putting them under put in the answers under the slot of them under the right questions well i think we only need to look at what star's initial response was to see that he did i answer the questions there were thirteen originally there were six that were maintained so the examiner dan where  pointed out he did not answer that yes or no question the goods are not made of vapor and does not as its primary function contain vapor is what he said and then went on to say the device does not regulate or process just repeating myself so i guess i'm interested in what information was missing as compared to what information was missing because if there's no information that's missing that's response would be responsive to the questions then we're talking about you didn't present the information in the right form and i'm which is a much less in a substantial basis for denying and i'm trying to understand eventually information myself now i do understand the distinction you're trying to make better and i think you i mean because even even as the first point read the first sentence is the product the third is a device which converts herbs into a form in which they may be inhaled  where they hayling about of the structure is there any doubt about that so what we want what information is missing well the information that's missing from the questions that he asked he never responded with any kind of product was available he just and we stuff in the same thing with the captain he didn't respond to that question saying oh here i have a design that he put after his admission that he said the goods resemble a cup dropped a footnote same see the drawings from the design pat point six one big and it's analogous to rule one five and the patent side is sort of like a discovery tool it recognizes that the office needs information from the applicant who's in the best position to provide that information  which was about one in five of the offices of already in discretion under that rule was pacifically a situation where the examiner needed information from the applicant about their plant variety and any sales under it to determine if the rejection under one of them to be should have been made in the first place so it's not at all the case that we have to make out a i think should case before we can ask the applicant for information sometimes we need it here and  case of an intent to use application that that is that is true and so what i heard mr starr's counsel saying earlier here is basically that he doesn't have to give us anything or participate or help the office to gather evidence and that is that is not sound unfortunately a lot of trademark applicants share the same view we do not have a precedent from the scored on a two point six one bit we have star fruits which is great but a lot of trademark lawyers don't read the patent president so that word is inclined to write we would record already shows up again based on the example it was given was we didn't respond to whether or not it produces paper what we did offer to disclaim vapor we the application says that what the product does i