on summary judgment to start with the nature of a trademark dispute is intensely factual and in fact the entrepreneurial media case and other ni metal made coated with abrasive material which can be disinfected and then can be read use multiple times with multiple disinfection on multiple customers bearing in mind that the channels of would it be protectable or would it be generic repair well they're two terms that you have they're easily and usable usable like many other apple usable i've not seen any cases that uses the term usable if it is being used in a context where it does not tell what the product is which usable quite likely might not be and where you have to take a multi step process to determine what the term means then yes it would be protectable and all of these words and their protect ability are extremely case sensitive because you always have to look at them in relation to the product to make the determination does it tell what the product is and for descriptive ness does it describe the product again descriptive ness is intensely factual because of course you have to make a determination with respect to that second factor the first use that anyone has ever seen and right granted that there was some evidence given by the alley which was testimonial evidence that i've been in the nail care industry  two witnesses for quite some time and i've heard it used for quite some time but by way of seeing it in any writing that had never been used prior to my client's use in two thousand and one your client's use first and then the st he argues that this might create a monopoly or that it would preclude the use by the regulatory agencies but that used only occurred after it was used by the  register the trademark and after he had used it for i think a number of months or about a year he submitted to various regulatory agencies the testing that he had done that made the determination that files could be repeatedly immersed and with maintain the fact that they were just infected and could be used a multiple users so whether in fact they know well he didn't do that when he sent it i believe to the regulatory agencies but apparently at one point prior to attorneys getting involved he put a little our next with believing that since he had applied for register for registering at that nails so in the context of worrying about whether he could sell these whether they were just whether whether they could be disinfected these non mental files he went and did the testing at the point in time after someone extensive testing determination was made by an independent laboratory that there were certain solutions they could be repeatedly immersed in and that they would maintain their disinfected stayed at that point he wrote to the regulatory agencies and said to good morning defendants have submitted an overwhelming record here that the fact that the term disinfected bill is generic it comprised the testimony of persons in the trade that it's been widely used for a long period of time there was a question about prior use the record indicates that various people have testified that he peters for one mr shewn for another they've been in the business for fifteen twenty twenty five years they testified that it was a term that was widely used in the industry so i don't think there is there is no question on this record that rudolph is was not the first to use the term even in the nail industry in addition to the testimony of persons in the trade we have competitors generic usage we have rudolph's own generic usage we have generic use in the media the magazine articles and so forth generic use in the state cosmetology board regulations and th there was a question about those regulations rudolph wanted the states around the country to legislate that term disinfected had to be on the files and he that of course was and he wrote to each of the state boards all fifty boards urging them to do this only one of record actually did that which was the state of oregon but several other states actually use the term disinfected bill in their regulations nebraska i mentioned oregon vermont virginia in addition the expert report of dr number really sexpert linguist document substantial use of the term outside of the industry as admitted by pla plethora of other products dating back as far as the one nine hundred sixty s there was a question about easily usable that i think goes the issue of there is no question in the law that an adjective can be generic sure we think normally of nouns as being generic but clearly it adjective can be generic site for that would be the a j canfield case the chocolate fudge case or diet soda the miller brewing case lite beer federal circuit case of new plough which came from the central district of california that was cushioned grip for tool handles defendants have the burden to show the primary significance of the term here is a brand they simply haven't done it they haven't carried their burden they offer no survey evidence they do rely upon for canned statements by technicians which mr heller did not mention and if the court's not interested in them i won't dwell on them but i was going to discuss them briefly those are four statements by the technicians and they only need to look at one because they're all the same and they just don't withstand scrutiny to create an issue of fact brand signifies we can all agree on the law brand signify who ar generic terms signifies what are you let's apply that test of the technician statements paragraph two of the statement by the technicians i understood that nail files mark disinfected will could be immersed in an e p a registered disinfectant for a specified period of time and then could very reuse that then it's telling the text not who are you not if they don't they're not saying it's a brand or a trademark their attempt it's telling them what are you it's a file that can be disinfected and reuse how about paragraph four of the tech statements the alleged confusion when i initially saw that release was using the term disinfected will i assume that really  supreme court in the famous red week case discusses the well established law that being that a plaintiff must show more than a subordinate meaning we're consumers have only seen a generic term on one person product one sellers product they may associate that term with that sellers product because they've only seen it in connection with that sellers product it's not because it's a brand it's because they haven't seen it on anyone else's really some affiliation not because they thought it was rudolph brands you never see the term trademark or brands or of any of the statements but because they had only seen it on rudolph file well how about an issue of fact from rudolph's use the sale the advertising mr heller my no that doesn't help either why because of the sales by rudolph let's look at how rudolph uses the term on the files site for the record on that is volume seven twenty seventy one it shows you how rudolph uses the term on the files themselves and it says anti bacterial disinfect of all that and is rudolph himself testified in a deposition that tells one that the file  anti bacterial and it disinfected will well have all the advertising no that doesn't help either that simply reinforces the generic meaning because first of all little or there's absolutely little or no evidence of record where any of these  ads ran how long they ran what was the distribution of the ads nothing there more importantly many of the rudolph ads use the term generically a couple of sites for the record volume nine twenty six thirty three one of the ads that they rely upon it's a super long lasting disinfect of all anti bacterial that's a clearly a generic usage volume seven twenty seventy one actually having a definition of dip in fact of all in their own hands defining issue of fact in the linguistics expert no what did he say he said nail care professionals would recognize rudolph's use of the term different fact of will to mean both able to be disinfected and reusable on other occasions is volume nine twenty five zero nine that's what i would say on generic notes quickly on secondary meaning i just would like to make one point on the secondary meaning no evidence of record of the extent of the sales or advertising before the critical date of release use simply to date sales a couple of minutes on fair use for my remaining time no triable issue of fact as to fair use is descriptive and in good faith that's really to use now descriptive and in good faith well what's the record on descriptive miss their block the really their ads that are of record they point to one and rely soley on one them nine twenty five seventy six your honour's if you look at that ad i think you will agree that that use there is descriptive it is not as abram indeed plaintiffs accuse relieved of misleading consumers various other exhibits of record for really to use i think it's very instructive to look at volume seven twenty seventy nine versus twenty eighty because that shows you the transition between what really is used to do which w customer sally and the regulatory issues that were ongoing at the time in california sallies wanted their files they disinfect of all because there was concern about whether those files would would sell very well if they didn't have the term on also have the rudolph quote quote in the magazine article where he's quoted as inviting the industry to discontinue use of the term sanitise of all the term to adopt now is disinfected ball he claims he was misquoted it doesn't matter for the point that i'm making and that is evidence of good faith the fact is that it did appear in the magazine that uncontestable and would not occur at any time corrected no evidence of record to counter that would say just speculation from plaintiff that well bill's reason seem quote far fetched and i'm down to my last ten seconds i think i'll stop there unless there's a question i think you let me respond to some of the points that were raised with respect to the record of use as i said there is absolutely nothing in the record that shows prior use in the nail file industry or for a brace of files noted that virtually all of the cases that are found words to be generic have been nouns and the reason for that is of course because a noun describes what it is the leading cases on those are search your center and filipino yellow pages the four technicians statements went to likelihood of confusion and of course we showed likelihood of confusion through a number of various factors which were recognized by the sleep craft case but not the least of which was actual confusion all of the argument that you just heard really goes to factual and credibility issues with respect to a fair use and a good faith in using it someone from sally's telling one of his salesperson is pure hearsay that cannot identify who from sally said it and it seems rather unlikely on its face anyway and unlike rudolph who did extensive testing with respect to the a ntibacterial aspect of the files through an independent lab the mr really looked at it under a microscope put in some bleach put it under a microscope and said i didn't see anything wiggle so i figured there was no more bacteria