met first the primary significance of the mark must be a generally known geographic location second the consuming public must be likely to believe that the  fact that it's made in this other russian city is not material grammars and that currently absolutely is not material your honor and also the survey shows that only sex out of the two hundred thirty one respondents desire with the rats if they knew it came from ling and rat had anything to do with moscow what's the relevant consumer in this that the test is to apply is to apply to the relevant consumer on our  view your honor is that it certainly is appropriate and they are and i are part of it so hard that it is not appropriate to consider them separately or of ording to the record there are seven hundred six thousand russian speaking people in the united states they constitute point two five percent of the population kill which is very heavily identified with russia so wouldn't a ordinary consumer that you're asking us to consider even if not a russian speaker be cued to recognize moscow in moscow one might think so are our consumer survey was designed that was one of the very things that was likely to purchase them if they knew that it came from  fact that they immediately associated with russia's priest small step to get from there plus the first five letters to moscow well your honor the fact if the fact that they associate it with russia is relevant here or is it is it is relevant factor then there then there is nothing deceptive about this are as the i'm from russia comes from colleen and rot in russia under german rule and now it's back to russia but it's quite a good distance away from moscow so the fact that there were a lot of people a lot of the respondents did answer russia most of the cases come up under whether there is a likelihood of confusion that's not the issue here no it's not it but it it is it is the same and that the issue is whether consumers are being misled into thinking that somebody significant if they are misled to believe that it comes from one tree than are seems to me those are comparable and a lot there is no case that i'm aware of and the like of fusion two point four hours ant of a survey is anywhere near enough to make the case it is it your position that the consuming public should be considered a the trademark law and in terms of the survey which i've done a few of them they basically look at what is the relevant universe the relevant universe is all summer be more or less likely to be confused by a particular mark but the law does not separately for that and i don't think likewise there's no reason why you should test separately the general public in virtually every case because it but in almost every situation where you're talking about foreign speaking peoples you're only talking about us relatively small segment americans the survey show that must up so that was pretty obscure to most americans whether i don't think with respect your honor that it makes any difference whether it's more or less obscure or because the task that this includes no it didn't isn't that what they what they intended there isn't that the appropriate way to look at it the american public doesn't clue that said i totally agree that if it if they said which includes the foreign speakers i would be totally with them but that isn't what i said they said in this case it is the russians speakers and they then went on and and injected that modification of this court's decision and into the california innovations as and they found that a relevant like from which you must decide whether the spanish language situation because such a large proportion of the american public speak spanish i mean in terms of the rule that would be a i think the same rule of what a question is whether group knowing understanding what the mark is so what percentage become  the same and the only guidance we have of what percentage is on say two and a half percent on a problem good point two five percent of what percent is a problem as we find out in our briefs that there is only one  it but generally speaking and fact most most of the courts are that in a survey you need roughly twenty percent to show a likelihood of confusion and there's only one that has found less than eleven are set and not to show a likelihood of confusion so i think that two point four percent or two point six percent is way below anything we've ever seen and in my view is not enough i think you have you have the tail wagging the dog here if you have a point one point two five one percent of the s save the well actually you've consumed your time is really right i will we will restore your rebuttal time plus a little and if you'll give mr shawn extra seven minutes is designed to protect all consumers and businesses from deceptive prey practices and by doing so they would carve out english speakers as as a cause q you seem to use includes a few of us russian speakers they'll be included in the mix well that was certainly kind of the problem with that is that it becomes a question of demographic because you may have seven hundred thousand administered only to those who are familiar with it and would translate it into russian were suddenly you've made the whole test center on point one five or two five percent of the population will the good of the purpose of is too small percentage to be concerned about is the same thing true in geographic as the session so that there's some percentage which we're not concerned logically that there must be because there are certain  a particular geographic notation and that ninety eight percent of people are not confused is that is there the geographic deception problem under those circumstances i think there still is because you you still have a large portion of a large group not a large portion but a large group of the population that's going to be used and that the problem is that it's not that the other many a percent are confused it's that they don't understand the t would say why should it be different that war in the foreign language area question why we should why should there be a different test why should there be the same notion that there's sufficiently small part of the population that we shouldn't be concerned of people who are confused as to the origin of the product if you do it narrows on i don't think you can get your point two five percent haven't you with your test that task i think that if you look back at the formulation of that going back to some of the older cases back in the thirty's the northern paper case it says that foreign words from common language use are granted in english or of the building so that the presumption is that if the common or modern language any you make the translation unless there is some reason which then gets you into the woodstock translatable but for example i believe that in the wife's little case when gar was about to be a common modern language that's really more obscure than russian is in terms of the number of speakers in this country but i think that the issue is is it a common language that american consumers and american consumers are a very diverse group friends and that as a result there you're going to get a large number of people that are going to speak a language as a percentage of the population they may not be are but there are a number of significant groups each or are a fairly large number just not as a percentage of in california of ations that the court said that if a place is is no for a particular product is renowned for a particular product that will support a presumption of materiality the consumer that is a place is well fact that the survey didn't screen for russian speakers it you didn't really get a sense of of what what the uk what those sort of the level of the population was to begin where and i think that the mall after it was one of many factors that we just translate them when it's a significant portion of the american population i would say the latter but i would adopt right out the law your honor is its i believe that registering i don't know as i i don't you're going to get a large pop large percentage better than fifteen percent of us up elations going to identify something dealing with mexico with that right i would assume so at it if you had a survey that showed fifteen percent of taken from the entire universe of purchasers of the product i what i don't think it necessarily would your honor but again this is our survey shows that only sets of the respondents knew what musk ox man knew that it was really  well yes but if they thought it came from russia and it came from dover delaware i would agree that that would be a problem with a large force but here we have the situation where our product in fact  back a lot of people out of came from russia this is not the show that they were to see one other point if i may make out on how much time i have left the board has taken the position that the relevant group are those people who speak a foreign language and their findings that all three of the california innovation conditions are met are based on that assumption they found  but there is no evidence in the record not that those consumers who do not speak russian would know that must mean and without such evidence the board's finding that people in the united states are constituting ninety nine point seven percent without evidence that that kind of a percentage of  means there is no basis and this record there's no evidence and that's record that they actually look at the entire universe that they would be likely to believe that the vodka comes from us and there is no assumption that russian speakers would know that he is from moscow if you look at the entire universe there is no evidence that those speakers would know that it means