bears on whether the concurrent registration may be denied if there is a sufficient likelihood of confusion i think in terms of whether there is a likelihood of confusion in the context of concord used to seeing the courts have always indicated who was searched through supply to register their trademark that is one of the factors that is to be considered in connection with that like likelihood of can she should an issue on the wrong party or what exam know the court erred rice basically disregarding the policy and giving centrally no weight to the important factor of sa western management be implemented is it because that shifts the burden on likelihood of confusion is it because in considering whether there is a likelihood of confusion first applicant is than likely to generate confusion or suspect or something i take it seems to me one needs translate that into what exactly to do with likelihood confusion right up the case effective date of nationwide constructive notice and use is retroactive bate back back to the date of the application all right now let's say that later on some parties then move to cancel the registration as konqueror users well the nationwide constructor for use went back to the date of the application so presumptively the applicant would have had nationwide and noticed and  segregating of the registration rights among the parties respective parties to various geographic territories or other restrictions so as to minimize that likely future and one of the factors to consider is you are appealing the rejection of the current concurrent use applet registration application which covers the whole country with with a certain number of islands taken out what if given the board's opinion here what room do you think there is for a more geographically limited application you might file or do you think that you just can't file one is a board that if i remember right at the end of the opinion said it and it's a more it's to say we're just ruling on the one that we have in front of us and maybe something narrower would be permissible and that's a great question i think there is room from south western standpoint to modify the forty mile radius and things like that that's not sacrosanct at all probably not forty five  wouldn't change things but but that the gore the board give us no guidance at all so what it considers to be the respective geographic rights of the parties or any indication what it might be appropriate other limitations on the parties so we are a bit in the dark and i'm not sure how the board would go about that except maybe to having you know behind the scenes the discussion with the parties or to just flat out come through with a ruling and i know that saying to the fact i know that this registration has requested the sporty mile radius around these three cities however you know we deem that the proper scope of the contra to suffocation should be this and then just come out with the in order in a ruling the fact of what they think should be the proper scope of any limitations geographically or otherwise i sort of look at it as a relic from you know one hundred years ago but given the situation we have here it's not always the case in one of these concord use proceedings is that we're dealing with identical markets for identical identical mar you know in maine versus california but then the main business nobody's going to get confused going into the shop with the same name in california just because somebody in maine has it s that it's true that you would have even have a restaurant saying want to visit a same name but nevertheless you could establish no likelihood of confusion even taking into account all of the dupont analysis i think that is the majority of cases that in order to issue a concurrent use registration it's very important that there's no likely to confusion you know he talked about that the marks and services do caution of a pride because the marks of services are going to call well that's the exact problem with the concurrent  and what the board is concerned about it should be concerned about is that consumers are going to be confused can i ask you do you think that under this board decision or under your position that they could get  essentially everywhere maybe even including upstate new york and i think what came out a trial and what we knew before was certainly proven here but the chaff from all and his restaurant domonic a restaurant has to have them are so famous across the united states that now you can't car at a territory and i understand that the board did get into some issues are if it had some discussion about its right to use the mark i was instructed the board the first it really objective evidence that we put in and i think it's something that really makes this case unique from some of the prior can turn loose registry cases that dealt with hotels and restaurants we put in objective evidence that show that the customers at the own restaurants and also monica restaurants in las vegas in new orleans come from all over the country we actually flew to arizona took the testimony of american express and put in reports showing and they were called the monaco that was in the title those aired all of the country we put in evidence of how many people saw them and that this is just the beginning he went on his sirius radio show he talked about his down lack of restaurants he says he's regularly on good fact here that it's been almost twenty years since chef emeril opened the two restaurants and he hasn't in fact expanded i guess with that was there an attempt in georgia or someplace that that there is no current possibility of expansion into these other markets and it's going to very very long time as this is that irrelevant because as long as he keeps going on good morning american people keep buying the books then diners in syracuse are still going to be confused that is that is true i think that there is a distinction here between you know you had raised before the idea of a local establishment and which just serves customers in the area and people in california or new york they're not going to be confused these are very fact specific cases in wiener king was clear that you have to do an intense fact in fact in the house but outside outside the current concurrent registration context can you sue them for using the name in syracuse and utica is the same question you have a currently pending application for unrestricted registration for del monaco is that right that's that's correct ok and so if you succeed  in state and in the outcome of this after seeding then so let's say this case gets a further let's say that you can proceed with your application you probably are going to have to face an opposition but even if you were to succeed all of that and then you get a registration then what does that mean for the other two parties here in the court does that mean you would then have the right to prevent them from using the del monaco mark whether it's fifty six every street or in syracuse rochester i think that is or is not because i think that finding i mean i guess the outline question is whether b in b would find that you know whether you could take testimony put forth by southwestern you know three lions essentially no evidence in fact the exact opposite happened what happened when i asked southwestern officer john waite sr who founded the company i asked him you know how is it ken are these two restaurants going to be confused or what in your opinion are emma's restaurants confusing with yours and his response was no because the styles of the restaurants are different he said and i also use italian then you go back and seek an unrestricted registration for the markdown monaco's for restaurant services how would that be able to if proved in the face of the fact that we have multiple users throughout the country that are using monaco's and therefore that is strong evidence that consumers at least in those respective locales would be confused by these multiple uses  or what what is really at issue right now is one application and i appreciate my i have a hypothetical i know you're predicting into the future and i appreciate that that is you know the top of the mind for you but it with respect to our unrestricted application the trees few fruit foods makes clear that the senior user which is emeralds the senior user gets prime a fish of the entire united states except for  or junior users so we promise future and title to the entire united states and whether you know that gives us the right to it and national registration bashir issue is an application by southwestern art or as the board make clear our application which is behind it has to clear several hurdles just to even get to that point does to register and we're not but just so i've i'm not that familiar with trademark law just so i understand if a junior user has in fact been using a mark in a particular the cation for twenty years or one hundred years but nevertheless there are junior to the applicant who is him to be the senior  user in the senior user really get an unrestricted registration that that can and thereby enjoying the hundred year junior user from continuing to use the mark in their specific lower there that you can see do something here use that is fine but i just want to make sure that where he had the same understanding of what beatrice foods that right there that section of it and i believe that's what it says ok but again the first use is not always the winner in many cases it's not the first to fall is not always the winner the first to register is not always where this is a very very complex case should i ask you it beats remind me what did the board find about  to have some forward looking effect when they go for their national registration and try to stop you it's a very complex proceeding it's certainly something they were trying to rely on we think that we will have the opportunity to rebut that one of the problems of this in you mention that generally concurrent use proceedings involve two companies one of which is expanding in large or at least larger than one company which is basically a small area and doesn't have a reputation beyond and small enclave geographically this is not the case these are three companies two of which have national reputations are very strong reputations one of which southwestern is a fine company but it does not have a national reputation or any type of reputation beyond a rather limited area in upstate new york there's no evidence of any publicity for south western style monica restaurants there's no evidence of any public or now has the orlando place opened yet i know it had case involving restaurants or hotels that i'm familiar with om and i think that the word was correct in finding that given the conditions of limitations in the application that southwestern see think that there is the internet certainly as changed things in that regard and i think the case for does say that a certain amount of overlap is permissible certainly south west inside of those cases but in this particular case i think that is that they're finding that lots and lots of people think because i'm not sure what reputation means lots and lots of people or some people in that in that there would be a likelihood of confusion and i think that that southwest would challenge that customers come from everywhere in these concrete use cases and the advertising overlaps audience was you know making you know national advertisers and so forth and the case law said well we understand that in the context of restaurants and hotels people come from all the country we've got a hotel in arizona people come from all over down there in winter time to go you know at the hotel but just to get to the underlying point of the question it seems entirely appropriate for the board to try to inquire what is the relative territorial reach of each of these brands in terms of understanding whether there would be a likelihood of confusion so in terms of trying to understand what's relative even making that kind of fact finding it's logical to to make then also garner yes but here snow consumer awareness surveys right there was no indication of the you know numbers of the robot population  to be considered in connection with arkansas or minnesota wherever and how much they know the resist saturation of you know those customers by either a samoan or amorous and strangely enough each of them contend that they have a nationwide reputation restaurant and simultaneously think you know new york no no las vegas or so it can't be that cannot possibly be that this that this overlapping reputation has such a degree of saturation as to be significant and the underlying evidence is lacking for the determination made by the trader trumper war that there's this reputation and some sort of substantial portion of it states also looking forward a lot of  cases thank you very much