i guess all these people who are not here to hear you began by stating the basic principle that should determine likelihood of confusion that the trademark and the mark in the registration must be compared in their entirety and then going to do just the opposite on the first point and i can i we have limited time and i guess the argument about how at least to one or two places it misstated the market and i'm  i'd rather focus on one other another area i was just the or feel the board said we've got a discount and i think they entirely discounted correct me if i'm wrong the evidence that you put on with respect to sales and advertising and expenditures and why in your view with a not justified in doing math they said because you didn't provide enough specificity with respect to what the advertisements and the seals dealt with this is that is that we were asking the people the t tab to infer that all of that advertising had to do with omaha steaks or was there evidence in the record that that's what you were talking about that i wasn't clear on what was going on here did they say well you told us there's all this advertising we don't know whether or not it has anything to do with the actual mark of omaha sticks there's testimony in the record that every single package every single bit about advertising that's put out there says omaha steaks and the board was primarily considering the standard word mark so to say should should i have shown every type of and that omaha steaks i used since nine hundred fifty eight in order to convince the court or the board what sort of data tyson was put on when todd simon testified to parents is the batson major newspapers major magazines his personal appearance on several television shows the seventy five retail stores would you say about those ads to tie them to what we're talking about here which is the omaha steaks mark yes he said that every single mention every single time that they talked about the promotion of the product that they spent fifty million dollars a year on that omaha steaks was the primary better directed towards your friends will ask him to but i'm just wondering what your takeaway well i'll be interested to hear it my friend says as well because he never once objected to the evidence about the flames except to the extent the various areas what was in the fourth concerned about the fact that your sales didn't really reflect an annual period you know it in statistics about sales during the holiday season no we there is absolutely evidence in the record of how much was spent per year and there's absolutely evidence from the record of how much was spent on advertising and what about contacts i read the opinion to be saying that some cont j thirty seven they talked about the extent to which customers recognize the marks of things like that or hasn't provided any context for how to translate the evidence of market share to the trademark itself it sink into your first point when the eight when the board talked about putting numbers into context they excited to pose and both said you know it used to be enough to talk about sales and advertising numbers period that's not enough anymore you have to show was market share shows something else why can't show your market share or a privately held company but a business for one hundred one years and now there is nobody that i can go to and say what are your sales you know how much are you spending on  says context because you're assuming and maybe you're right there's that inference that forty to fifty million dollars of sales a year is a great deal in this market of beef but h why are we supposed to infer that in the absence of you're telling us that this is sort of a big deal in the context of the product i do want to say that it's four hundred fifty to five hundred million sales of the budget is forty fifty million well the question still that i just want to be sure that the numbers were clear i think that you can show that we have shown that our advertising has had an impact not only on the public to the extent  but also the fact that popular media without our request with our input with our money is written into their shows seinfeld west wing dennis miller the movie is about schmidt and how do you do you have a net and a dia because there wasn't anything on the record but how many of these retail stake shipping or be fictive shipping companies exist i mean most of these companies are wholesale right well companies that slaughter animals are whole so we don't slaughter animals ok we buy beef from other companies and there are only three or four big players in that field we're not in that field state it's not in the record i can tell you that it has to be in two thousand and one this an article where they talked about a comparison about how they'd like to catch up with us and at that point there are millions behind that's not the record can i ask you something else one of the things that was about when you have a market that's not as distinctive and you're looking at frame how much to take that into account because i can see that your brief address that it off well that the law says that when  and back from the same point i feel as if the board put us through with dilution same test in either or it went on and on about all the evidence we put in and said you know that backing up a little bit is there a sliding scale of how much evidence you have to put on for fame depending on where you're beginning what your market is whether it's something unique to begin with or whether it's something that's less distinctive i wouldn't say that any court or the board has written out a sliding scale here's a list of evidence you need to show up to the senate both suggested you needed to get outside sales and advertising budget i would say that there's a sliding criticize parts of it it's hard enough to compete against your opponent when you have to compete against or that's making all the arguments for your opponent and the criticism about the survey was that the universe was too small s there are substantial evidence to support that the board rejected carette what evidence would you find from my friend you wouldn't find and now the board cited to bl less evidence and far less quality evidence that omaha steaks did yet the board determined your not samus but you've shown that you have a strong mark that deserves recognition than pending saturday night live or omaha steaks into a skit that appeared on may fifth two thousand eight hundred yet instead of giving the one high stakes the same benefit it gave blue man it said but you're still weak and what faces somewhat substantial evidence to the board to base that on again on prater on how packings argument no want no evidence just argument when you can see that the it's your burden absolutely but both had eight years of sales evidence kicked out because they weren't introduced properly at the two to be in this court decided one year's evidence of sales was enough advertising and three or four magazines in a newspaper we listed far far further publications that we've appeared in that eighteen million existing customers we send a million markley emails daily too much evidence of frame assume that we think the board should have taken traditional notice of the infringement lawsuit that we think that the board erred as to failure where does that leave you with respect to the rest of the factors leaves us is the question of is there is substantial evidence to support the findings that the board made particularly about du pont factor one the board found that the marks were not similar and d that we would not send it back instead we would think that that that if we think there's a problem with the finding of fame that we are supposed to really weigh all of the factors separate you're suggesting go on that suggest i'm saying i'm saying the we have to remain and i would say no big because the board is supposed to look at the totality of circumstances right but if we change their finding on one of those terms and i'm saying if you take the t substantial evidence to make its ultimate finding that there was no likelihood of computing and i would say even assuming you're ok with letting we have your point why let me push back a little more on one of the pillars that still standing in your view which was third party you why is it correct that they used one hundred eighteen marks to establish that this was popular use third party use and by my count or i think your friends count only five of those big used omaha but only five of those marks they used with respect to omaha had any association with meat so why is it fear crown for the board to fix i think it is and you're silent about third party use and including the overwhelming majority of that use only in the word omaha not related to me why is that correct as a matter of law because you're picking out actually mentioned it just in passing one time we said it showed that one hundred eighteen people thought they were omaha and the city of all i did the board make did make a finding about the six factor of the glee number and nature of the factor sex point to all the other businesses that use the word omaha in their title and as far as i can tell none of those business are actually in retail shipment  good you understand the registration for all my steaks it's not limited to anything except me and of these goods why is the use of omaha on connection with something that has no relationship to eat  whatsoever your honor i would suggest that all the food will all be peaches deposition which had about thirteen or fourteen examples of uses of this marks that include the word omagh on various food products somewhere steakhouses somewhere meet somewhere for popcorn somewhere all kinds of food products those are similar i'm sorry those are similar goods to meet i mean is  i would suggest yes food products i mean meat is a food product not talking about automobiles or something if meat was a good product you buy it in the store the kinds of evidence that we s very strong evidence actually seven times the board specified our trademark accurately and one time they made a typo and they didn't rely on that type but we sure doc i would suggest that it's not a meaningful thing what i w say though is in connection with the joseph phelps case which you decidedly have here and which simply says that it's important that the board not just make a yes no test on fame and board properly said be evaluated a set is not famous but they then went on to meet eight different fact findings between page thirty appendix page thirty nine and appendix page fifty one on the relative no there's a reasonable degree of recognition that it but it's not famous it says that evidence is not sufficient to support a finding that the marks are famous yes they did find that this exactly correct they did find that the work was not famous but they also found that the use of the word omaha and the use of the word stakes which makes you very weak combination being straight from omaha is conceded by the other side that they say that looking at the wheat they weighed both the lack of similarity of the marks and the third quarter uses and they said that in fact if you look on page fifty one of the opinion some fifty one outweighs the legal identity of goods and the presumed identical trade channels and the green the degree of really now on that plane it has demonstrated it says that the plane of his happy identity but a similarity so you would say because we're jelling with b p or any food group any food or beverage group what or what similarity what's the field here i would say it's food and including beverage not or not that fridge and i think the board did rely on a wine company ok now these are only some of the items ok one was a carefree gifts and it was a specialty good store selling food ok popcorn is sold in a store it know that it's customers become educated and you don't have to show the specific amount of everything but if you have a ton of third party uses and of similar marks they have the word open heart it is powerful in showing evidence as to why the narrowness should be a plate that the amount of fame given to the plaintiff's trademark should be narrowed because it's not a title to stop everybody else from using the word omaha in connection with food litigation the existence of a particular kind of litigation it was just unclear to me what you were seeking we did request for additional bonus based on the identification of a bunch of cases that omaha had six have asserted thank you the request for judicial notice was asking the board to take notice that omaha steaks and numerous trademark trademark infringement write did you anticipate that they would have to look it up and just verify that it's in a predicament suit or we're asking them to take your word for it as not sort of the court i think that they can take my word for it i would rely on my friend to point out to the court oh no those were trades dress those were patent those were you know fill in the blank they weren't what she said they were and and the reason wasn't to show that that there had been trademark infringement suits filed well i shouldn't say that it was but what i was trying to shows imitation with the saved and desist letters in the lawsuits was the strength of a mark in the same comes imitation if you're not relying on those complaints for the truth of the matter asserted and how are you showing board did here other than not take you just on notice of the number of lawsuits and that's a pretty insignificant factor in the scheme of things right so clearly by itself one could construe that as being a harmless error by hagley i