is it necessary for us to really i don't want to kuku this but really worry about it in the sense that can we not either affirm or reverse which is what you would want well there was an impermissible attack but still we think that sharp should prevail you say that can't happen without actually if if you this court wants to address the question of our thirteen sixteen more in this court said in testing for the likelihood of confusion under section two did therefore the following way of record must be considered critical that directly goes to descriptive as the extent number eleven the extent to which african has a right to exclude others from the use of them or have the board would consider our description his arguments  making a determination on connotation of commercial success by saying that they would not consider the descriptions arguments they are running afoul of do part in its project you registered market was descriptive so they were excited to show we're saying we're tired to show this work and this court went on and even looks stronger and if proved should not be disregarded on the ground a decision in one nine hundred seventy eight the court said the level of descriptive names of the cited marks may influence the conclusion that confusion is likely or unlikely again the fir his descriptive if you look at page you know the record is clear the examiner admitted it pages one twenty nine to one thirty where it went when you want thirty the word toast sick when marks are identical but neither suggestive more descriptive of the goods associated with them the first part factor weighs heavily against the applicant h did to an earlier federal circuit decision martin's famous paper shop and what talking about the marks in there they were identical were more and i went on to say mark this is equipment versus baker a wall and there they found the likelihood of confusion because quote the similarity of appearance and surjective arises purely from the descriptive aspects of the mar a in making a decision as to likelihood confusion the c c p ape in that decision looked at the script business whereas the t p a said we will not even look at it attack that you've been proposing i say both of those were legal questions your honor so there are less than if you do you apply the descriptive in the standard of the pot or do you apply the legal test of the t that this site legislation is entitled to hold a narrow scope of protection because of the descriptive nature of the term test i believe that is a proper before the court or need to be considered here or there probably put before the board that were considered them and handled them correct on the first back to their dictionary evidence which shows that the term toastie which store structure has been incorporated in its to to to put in a very short sentence or two or three or what what is the difference between in your view properly saying that a more is this week and improperly that a mark improperly collateral collaterally attack and or make a statement that does the first in the one that does the second should now you're saying we are what would you say that one wanted to argue with one of say the you can't in other words you can't say something that would mean if it was true it shouldn't have been registered is entitle to only a narrow scope of protection that is not an impermissible collateral stop an attack on the liberty of the religious tradition that language carefully stated specifically good as to what it is the scope of protection to be afforded to the site registration in addition to everything else we put in internet  in three factors that i identified however in every single one of the cases that i cited to your honor's quote they all used the term descriptive nist as being a permissible