opposer kid tribe used the word the disputed word was it used for the purpose for commercial purposes because otherwise we're looking at freedom of the script in this and confusion right and that was really interesting because very early on and i was surprised at the trial an appeals court didn't  which is a sixty one well it helps me have a visual because that's really what the usage was was in these two this is what the trial an appeal board used to base its decision and i think we were talking about section eight clause three at the constitution so if we are we always have to go back to whether this is commercial use it you can't just say oh yeah they used it therefore they're entitled to a trademark because then words were stepping on the toes of freedom of speech and competition because we have a descriptive market here basically when you look at for the purposes of providing fitness and exercise and workshops and it was a very general one and then they had she had a special program here that involved the hoop it was only one of her programs and in that they had this section which is part three so basically in the hoop look a script if you can imagine you're out of school assembly elementary school assembly and all the kids are running around and if there's a warrant session and all of the same you're picking up ho so he uses the term hoop it up and that's the functional command telling the kids to pick up the so the problem with the appeal board is  there is a song and i thought that was really interesting to see they seem to the appeals court seemed to put a lot of emphasis on that song which we all know you can't trademark words in the song and they are so it's it's you know  which which is there there is a very detailed analysis that applies when you don't have a registered mark so if you have a registered mark you get a lot of presumptions and the policy is is to encourage the parties to make people aware and to use it so that they know that there is a trademark claim in here based on the facts and the usage there was no there is no addressed in section two e m f which creates a bar to trademark right to me basically we have to recognize that she does have some rights in order to prevent another well it's very clearly defined in the case law that lay is considered news for purposes of trademark that's and there section forty five the mark must be used or displayed in the sale or advertising of services know they were used functionally to tell kids to pick up the hoop it was a song it was a chant that was created and when you're looking at unregistered narratives was that it was used smurfs it wasn't just is you have to look at two pesos you have to look at walmart's those cases make it very clear that when you're talking about a common law mark and if you're going to assert right thing you have to have a very specific monopoly since it is something exclusive right to use a term if you're going to claim exclusive right to use the term then you need to use it as a trademark and suit what this party is used as a trade mart exercise activity and at a certain point because you're using hula hoops there's a certain point that you are hard to pick up indicate to me all these kids went to pick up and as like i said well i intended that to be in the car so you that's not what the test is the test is the effect it had on the consuming public that's all we're concerned about and trademark law is what the consumers advertised her services were talking about competing services and we're talking about somebody who decided to the bar is that they are providing what they think feel is an improvement