good morning ladies and gentlemen we actually have six cases before the court this morning two of which have been submitted on the breeze and the other four are being argued today the first case before good morning catherine spray here on behalf of detroit ethics company the appellant before i get into some of the specifics that i've noted for today's question i like to step back and take a bit of broad brush stroke because i think that's really what's been missing from this matter everybody all stages of the analysis in to do that i think it's important to remember that the dupont factors are thirteen non exclusive factors the last of which is a all encompassing anything that is probative of use analysis for the reason that we're looking at the totality of this case we're looking at what the consumer is experiencing in the market to these particular marks and it's not a bright line test it's not a simple first word it's always important last word is always important what we're trying to do is look at what is the consumer's experience and is that confusing as to the source of good and i think one thing that's very indicative is some of the pictures that may have been glossed over along the way and so i invite you to look at appendix ph to twenty five which is that the registrant you trade athletic clubs website there some photos on there that really go to how the registry is marketing itself to the consumer they really go to the luxury private club atmosphere that is the detroit athletic club and the registrant terms like distinction too broad of a category of of clothing why isn't that relevant to a cancellation perceiving but not relevant to the kind of pursuit that we have here well i think  are two different standards to apply one is in a cancellation proceeding where you say you gave them a registration that's too broad and then the other is in a proceeding like this where you're seeking to register your own mark which on its  is very close to an alternative mark and we are stuck with the categories that were given in the registration it's a different analysis yes except that first of all the  application is for a very limited scope of the trade channel the application is very specific to sports team related clothing line retail clothing and i think also the fact that there is  potential for a broad trade channel is overshadowed by the other factors the other twelve factors that are available to us under dupont to trade channel the potential trade channel that is not being accurate right in the s correct now is only one small factor in the totality again of what the consumer is experiencing and in the detroit regional market where these marks are being encountered perhaps someday under some hypothetical the detroit athletic club that has been in business for over one hundred years and has never entered this channel might potentially under this registration in gaijin some sort of clothing enterprise but the fact that the consumer is not experiencing that in the current situation overshadows that one small factor among these thirteen factors  cancellation we have not yet ok we feel strongly that both of these marks are entitled to exist concurrently as they have for at least the last sixteen years in the market without confusion so going forward i think that it is important and again you can weigh that the photographic appendix page ninety one of the applicants housing of and their marketing of what they are putting out there to the consumer it's very different and i think pretty clearly shows why these two marks can co exist in very different and definitely not confusing circumstances that being said established and the focus and case is like palm bay imports and the first word is really a result of the marketing it's not a factor of the fact of the first word it's sometimes a result when you're trying to you to give the presence or absence of a disclaimer legal significance because the consumer doesn't understand what is disclaimed and what is not is not disclaimed and what we're looking at is what does the consumer see is it confusing to them and particularly in this case where the terms co and club really describe the marketing that is happening the way in which the consumer is experiencing these marks i think that's very important and the disclaimer is not going to impact whether there is but they do because those pictures are available online they are the picture it at appendix page two twenty five is the home page of the registrants website and so you know in today's digital world it is the equivalent of the department in this digital world pictures are becoming more and more in indicator of what the consumers experience is but again the market you're seeing simply that the ones you're not seeking a market with a particular depiction correct and let me clarify that when i refer to the pictures i am referring to them as a part of a marketing scheme on behalf of of both both entities that are involved here in terms of showing the consumer what they do and showing that consumer what their sports team paraphernalia or to market and retail or online forums know they would have the potential someday if they chose to to enter those kinds of those kinds of arenas however i do think that it's pretty clear from cases that that the trademark trial an appeal board have recognised themselves that clothing general clothing can be differentiated it often is differentiated from things like sports teams apparel things like that there are different trade channels for clothing so if the detroit athletic club someday decided to enter a market for clothing described as it is in the registration that still doesn't in it doesn't overlap and encroach upon the channel that is very specific and i think if you look to even the third party registrations that are offered by the a probably the team sports clothing business is very specific all of the pages that are offered in the a pelleas brief they are all differentiated when you see team sports clothing it is on a separate page it is not included in the type of general clothing that is described in the registration have you asked the detroit athletic club if you would be willing to ask for a modification of its registration to disclaim  sales of sports team clothing as opposed to sales of products with its own mark we have not if for two reasons one first and foremost being that we feel that we are entitled to as they are entitled to exist in this market concurrently without confusion and so there is no need to ask for that which we have the right to have and number two there are practical limitations that i think are created more in the detroit area in that's always a possibility but we do feel very strongly that we have the right to exist in this market in this way as they do  has been offered for the idea that the word company isn't important and isn't a source identifying that's an eight hundred eighty eight supreme court case in which the supreme court actually held that the word company gives an indication that the parties are formed an association or partnership to deal in goods that there is meaning there and i think that was also held in the opposite case from this court where the court was dealing with whether a dot com has some sort of commercial impression and that the court there held also that the dot com is similar to the impression created by co for company and that's the association of a commercial entity with a mark so in fact those cases do indicate that despite the  disclaimer which again the public will not have information on those terms have meaning that and i think in terms of the marketing of these particular entities they have very real meaning and very important meaning that is probative of what the consumers are getting from these to the various entities and where these goods and services are coming from so in this case maybe unlike many it's very important it's it's very instructive of what the consumer experience amicably between detroit athletic club and the appellant through a consent agreement which we would consider in a future application the second thing i want to point out is is that the one hundred consent agreement could they enter into for instance the detroit athletic club was willing to enter into about where they're selling their goods and the kind of environment that is it would probably have to or the kinds of everything would they be able to return still sell all of their clothing only limited to the pub more that would be one that would be another thing that they might want to talk about is whether or not they want to exclude putting detroit professional to sports team logos on their goods that would be another thing that could be discussed so there really we would take it for whatever the facts are that these these two parties would work out and assess whether or not we thought that it would avoid the likelihood of confusion between the registration of these two marks is there any evidence that climate ever actually market clothing with any anything other than just its own clymer there isn't and there isn't any need to have that the registration is broad and allows them to market their goods comparing the two clubs march and any other marks they want to ting and and how do we deal with that i'm not sure what it was well they didn't address online reviews on the facebook pages why not and doesn't matter if the the online reviews i guess that what your honor is referring to is the ones that talk about what a great club it is and how exclusive it is that really doesn't matter because the because of as you point out really the breadth of the registration it has no limitations that the goods are going to be sold only within the confines of an exclusive members only club it's broader and that's something that could be contested perhaps if they didn't sell them outside that in the cancellation but we have to take it at face value here because of the i think it's section seven of the lanham act tell talks about the presumptions that go along with the registration it's given validity the exclusive right to use the mark on the goods specified so what they're trying to say is but you're only using them on pop a subset of those goods and that's not something that we can do in an ex parte proceeding consistent with those those what's your response to your friend's argument that really you should be doing in an ex parte proceeding because the contractors are really aimed at what the consumers experience is the du pont factors are very broad and but they apply not only to x party proceedings they apply to endure parties proceedings as well and so into parties proceedings for example  opposition or cancellation perhaps a broader number of these particular cancellations that are used based can get into the the the mix but it's very clear that when you're talking about an ex parte proceeding anything that goes to prescription terms play in the likelihood of confusion now when we have to consider them it's not just because the fact that they're generic we don't consider them at all we consider them in the context of the entire market and that's what the board did here source identifying significance it doesn't really change the overall impression that the marks are very similar so even it even if something's disclaimed it still gets considered in the totality of mine absolutely and it was here as  well the my friend talked a lot about the right to exist this isn't a case about the right to exist this only decides whether or not the appellant gets a registration registration it does not have anything to do with the ability to use the mark in the market place so this is not about the right to the appellant to exist as they obviously have for the last sixteen years he agree with your opponent that the good your case supports the position i don't believe that it does what it said and particularly in the in the context of the record in this case what the grittier court said was that words that tell you the kind of entity that a party is co inc or more modern things like an l l c doesn't really provide source identification information it does have meaning as as consul said but not a source identifying the rules or historic identifier for business forms what about something more modern like a dot com or dot net that's a very different kettle of fish i think there's a case of i can't remember which one which the former judge rater talked about you can probably have something like tennis dot net where the dot generic t l b would have maybe some meaning in the context of the market itself of the words that precede it but that's not really the case with code or ink which is what we have your letter of act that that because it's the that the phrase detroit athletic seems to be an geographical descriptor in other words were in detroit and weren't athletic on where as the detroit athletic geographic descriptivist and that's why they opted to go to the supplemental register so this is not a case where i think the record supports the notion that detroit athletic actually refers to particular kinds of logos that are in th difference does color club make in this case and you know the record in this case is that there are a number of clubs that are in fact incorporated they are corporations so that shows that the cove versus club doesn't really have the source identification potential that the appellant is arguing for so it doesn't do proper analysis to change at all given that we're dealing with the supplemental register here it dozens the same it's the same analysis really the only thing that is different is when you're looking at the strength of the marks you're you really kind of limited to weaker markets when you're talking about marks that are on the supplemental rather surreal what are the concerns i had gotten for its opinion as it seemed to say not just that there was no evidence of actual confusion but it seemed to say that actual confusion was irrelevant and i'm not quite sure how that can be when actual computers and isn't something contracted it is actual confusion of ten be relevant  for example you know in a case where there is actual confusion that can be relevant to know that there is likelihood of confusion when you're saying that there is no actual confusion that's a that's very difficult to  show even in an interparty is case because the test is not actually other there are instances of actual confusion about whether or not there is a likelihood of confusion but in the next party case it's even harder because you don't even have one side of the story in front of the relevant if i don't think i read it to say that it's not it's completely irrelevant it's of very little value and particularly in a case like here where there actually is no evidence there's just counsel's argument that there's no actual confusion there is actually no evidence name detroit and he thinks that the mark means that they felt detroit a professional sports logo did close on that really he didn't talk about actual confusion or that he knows the difference between the detroit athletic club and the detroit athletic  four it's noted as t t p precedent in two thousand and seven and they recognized an exception to that rule where they said that evidence of long standing current use in the same geographic area suffices to establish under the  the length of time during and conditions under which has been concurrent use without any evidence of the actual confusion that the absence of that evidence under also the seven factor which is a lack of confusion actual confusion  company by consumers showing a complete understanding of the things the goods and services that are being provided by both companies and where to go which company to go to which entity to go to which club to go to  court before those consumers right there we're just talking about i know what this company does and i know what this company does but not as compared to each other correct but they demonstrate a consumer understanding of the difference confusing and so it's not a situation where we're typing in detroit atlanta it's someone who's looking for clothing and might get confused potentially or the argument is that they are going to get confused by searching for clothing and finding these two and i think there are there is evidence in the records showing that when you searched detroit athletic clothing because that's the registration that we're talking about is a clothing registration that detroit athletic company comes up with let it club does not i know that there was a reference appellee on page twenty nine of his brief indicating that there wasn't an instance of that showing up but that's not accurate the result that was shown in an appendix page ninety seven is a review site it is it did  the detroit athletic company so there was no confusion and so there is evidence in the record that there was no actual confusion over a long period of time in the us army case the period of time that was accepted as long enough to be probative was five