two thousand and twelve thirteen eighty five of the certification marks at issue in this case is chris let me ask you a question or we may be discussing the cook who's in this case why how do you how do you explain to me how the certification including his principal argument is a bottle a plea the court costs the core issue before this court is whether the board of trial used a proper test to determine whether a violation of section fourteen five see has occurred back consumers now here one applies not just an eyeball test but also an understanding of the meaning and commercial pression that surfaced mark provides to consumers and these two factors are related inversely refers to three examples to illustrate separately distinct it talk about the trigger the trademark for publication good housekeeping and parents magazines and compare it to those entities certification mar allan adequately would be fourteen five a fourteen five c is the prohibition against permitting others to use one certification market some of the form of policing is a different purpose policing yes  last week's marks are nearly identical to the certification are correct correct around and so one of the laws are there are circumstances in which tended to obtain a sort of patient mark registration for wear dated unconditionally guaranteed for one full years normal wear and design the design being just a simple circle and that covered numerous clothing items and also pillows for pillows was the term were dated in a circle with a square above in a triangle below now the marks were different but they were for the board's purposes materially indistinct because the most pressing termine in those violation of four hundred five d the prohibition against discrimination and that came came up to because some of the trademarks were used in a related companies in those related was very clear at least down to bright line rules it states that there must be a difference between the goods sold and a service station activity implying that if there is no difference at all then the  present case we have a situation where there is no difference between the goods covered by this acacia mark and the trademarks they are for watches the registrations the federation owns our watches in the clones therapy the uses by the position that one's attempt to comply with f t c and customs regulations on market requirements would lead one to conflict with the standards imposed by the federation customs and manuals indicate one can use the abbreviation m o v teen for movement when identifying that one's provider was product contains with movements however yes there's a strike speed is a bit of a problem here because under this permits provision subsection c you're not supposed to use the certification mark to identify as a trademark or anything that's nearly identical ok i'm glad you raise that your honor the question as is whether there are substantial evidence supporting the board's finding that what the statute says is you can't use the same mark for certification purposes and and for trademark purposes and you can't permit others to do the same to different sections nearly identical what or mark it's nearly identical the statute only talks about using we've been construed it's always been construed to be identical first right florida and then virtually are substantially identical so what is that what is a substantial evidence that the board relied upon to find that the marks are clearly not the same and are clearly different and clearly cannot be construed to be identical virtually identical or substantially demichelis while first is the marks themselves because they are clearly different piece which is not the same as swiss or swiss made when anybody can be that any difference eliminates the problem because substantial identity is also a problem substantial identity suggests there must be some difference between the the trademark certification  right and the board found and it's a finer fact that there was a substantial difference and in fact the board had plenty of evidence wasn't the pieces we see and not well yes your honor i feel that there is a substantial difference fair or not th are similar and that's not the issue here it's whether they're identical it's looking at a how they begin they begin with with two different terms the is what's the overall pressure loss ways is not the same and would not be and to be the same as swiss and in fact it's a burden on the on the petitioner to show some evidence that somebody would review them the same and they and that's their burden their burden and they put in no survey evidence they have no evidence that anyone has ever thought loss with or peace was for the same and in fact the board found that there were they were substantially different and the the trademark office allowed those registrations so they identical i mean the thing is to say they've been protecting a certification mark for over one hundred years and he's and they certainly wouldn't have jeopardized would you say that any inkling that those marks were substantially identical and in fact the board found that there clearly weren't call and the burden is on the on the petitioners to show that the board didn't have substantial evidence to support its decision and in fact it didn't what what they do do this if they come back and say no no no there's a new standard of the separate and distinct standard but if you look at monsanto and you look at the in re open cases there's absolutely no new standard one santos specifically says that separate instinct only means that the market is not identical substantially identical for virtually identical there is no difference standard is completely made up addressing their issue addressing their issue of the agencies and the requirements of certification marks are really not at issue in this case as this board found in the vent nurse case or held in the venters case the only issue in an inner party's proceeding in a cancellation proceeding is is whether amorphous registerable i e does a mark up satisfy all the conditions of registration it is not an issue as to whether or not odd the the certification standards are exactly the same some regulatory agency standard and in fact that is what the statutory scheme is that all the statutory scheme that the lanham act sets out for certification mark says is that certifier determines what those standards are it isn't the this a certification mark on a watch doesn't indicate that it satisfies customs requirements for geographical classification that if if the if this was not a variation if we're talking about swiss versus swiss then clearly those things would be identical marks i think what you're asking judge dyke is that if there is a slight variation could there be a s why yogurt even though yogurt itself is generic so clearly the the there is a there is a substantial difference between what a doesn't at the substantial these things are separate and distinct as a board said there are clearly now the federation would have this court believe that it is our burden to show that with substantial lead more evidence that was already provided trial that there's that the public  as confusing the terms piece which in los was with their certification marks with such requirements have never been held to be not needed by the board in any of the cases previously rendering this issue a separate instinct in this with the board is simply done previously just taking a look at the marks as registered and taking the marks as registered and knowing that they are valid marks and possibly conflicting marks in the marketplace is enough to base the comparative analysis and to find that yes these marks are identical substantially virtually separateness requires either extreme distinctiveness in the trademark usage or may very well be a bright line rule prohibiting the existence of surf cation only logical result now as to the different markings required by the the federation and by customs well i would like to point out that the standards submitted by the federation with the patent trademark office do not include any requirement for the use of movement or the abbreviations for movement they are simply for the use the term swiss abbreviated in those standards entities that use the term swiss and the bt should not be prejudiced by not being