morning our first case this morning is in  and good morning hours maybe support if you do brings us here today is whether there exists in the record substantial evidence for the trademark trial appeal board's decision that the marquee lexy dash l e x is really descriptive of the goods in which with court specific consultation of the rules and implantation a procedure for filing electronically now first and foremost we'd like to get out of the way that we don't believe that part of the u s market cuts either way necessarily we believe that that the crux of the market or the crux of the should be focused on the last question of the of the application so while this court is obligated to look at the mark as a whole we think that the suggestion is portion of the part of the market that pushes this application over the line into suggesting this is the lex portion of that the federal civil and l a procedure that those have to do that those have the effect of law but at no point is there substantial evidence anywhere in the record saying that that issues that would be cited by a court's clerk and not by the court itself that those are law so what the way that this case moves from the descriptive this side of the line to the suggestion aside as we think about the relevant person public the lawyers that appear before you every day when they see the lax it's our position that they don't think they that when when the average attorney the average patron of the service considers thinks about law and thinks about law they don't think about whether or not there will be accepted by the clerk's office they don't think about whether or not they've submitted a scanned p d f versus the text  described by the term to a casual yes which are we don't we don't claim just right in that there is no relation between our service and the law that it's a complete vacuum but we think that it is so so the service while not necessary is provided to lawyers and is provided in the field of law and right now let me let me see if if i understand what the burden of your argument is and are you suggesting that the term evil acts which would be descriptive for a broad ray ray of legal services ceases to be descriptive when the legal services that are performed are that you know services will call them services that a lawyer would perform  it a group of admiralty lawyers so they were providing all services that lawyers provide but a very specific legal service it would still be descriptive would it not in that case we believe it would but the thing that separate that hypothetical from what we have here is that in order to provide out rules of the law services to provide legal counsel you would have to be barred and have to be an adult the lawyer the people that work at the expert and the people that are that are allowed by law to compile these briefs or that are allowed to compile these case involving the mark patents dot com and it was deemed to be descriptive for a service which wasn't prosecution of patents or litigation of patents but merely software tracking patents what's the distinction you see between that case and this one the decision the distinction there is if memory serves about that case specifically is a larger issue that cases whether adding the dot com did not was one of the issues that the whole thing on the less i think it is fair to say is that the reference to patents even though to this the services and everything to do with passing on the less was enough to render the script it the mark that pertaining to an entity that performs only a small subset of what you might think of as patent related work right we believe specifically what what would  to make a quick aside we believe it is important that we don't say we practice trademark lex or that bilsky may affect at lax that that it takes it takes a certain amount of imagination on perception to move from the average lawyer seeing a lex and digging a law is the first step and second that we would have to think that by law we meant not case law or common law or statutes but that or not even the federal procedure or the federal appellate procedure but that by law in the term relax the law that we mean those specific filing requirements that we mean pagination and margin sizes so we believe that because the thing the thing that separates us from cases like open golf and the lawyers dot com case is the fact that anybody could see those and and the thing immediately called up in their imagination that the information immediately conveyed to them would be specifically  or would be so proud and would cover what they were what dot com and what we're talking about whereas the idea that we think it's conjured up or suggested in the head of a lawyer when they see the term blacks or the law is not filing requirements it's not cases which are sugar and spice case and specifically in ray davis culture for pancake mix so there they actually did register culture for pancake mix and actual ingredients in in baking in the in the pancake mix itself and that was allowed to proceed to registration because most people wouldn't want it wouldn't immediately think pancake mix although they could arrive there after some mention via perception we believe that's the same thing that happens that would happen and does happen when lawyers see how are you that our services while provided to lawyers and minimally legally related moves it from the description aside along to the suggestions now we've said in both the case and that open do case that a mark can be descriptive even if it doesn't cover the false openings and the services that you're offering right how do you get around though so we get around that again by  because that's a characteristic of what you're doing and we've said in several of our opinions you can be descriptive of a characteristic right so so it may it may be we would argue that it is that it is not any the side of the line that that all that you can make an argument that every subject every suggestive mark has an ingredient quality or characteristic that but it's what it's where this line falls in this is minutely a close case but we think it has to do with this comes back to the remember that was the one where apple pie is just descriptive of a characteristic of potpourri it's sent right and in it that seems to me to require a good deal more imagination and in this we would say i would say that it doesn't specifically when it comes to what the average lawyer thinks of what we'll think of we hear the term law i'm sure that that when people issues the type of service provided by the or whatever and i think if you surveyed lawyers who practice before this court i think you would find that many of them spend a good deal of time comporting with the rules that your client provides do spend my impression is a matter of time making sure that their their briefs comport with all their as i don't seem to me that it's pushing it to say that that isn't something lawyers do maybe something that you don't require a lawyer to do but i think if the court this is a straightforward descriptive this case descriptive ness is a question of fact and here the board made fact finding based on substantial evidence in the record that elects is merely line that the test for just wickedness is whether or not the relevant purchased in public your lawyers knowing what the services are they're buying these services litigation support services would when confronted with the lax get some knowledge immediately from seeing that term and know a feature function characteristic of the services or would they have to do some kind of mental gymnastics or nagell nation perception some speculation to reach a conclusion as to what the services in and here you need only look at the identification of services on their face their legal related in three different ways it starts out with litigation in the record there's a definition of litigation is to contest  and to some degree but those are nonetheless the law so on the face of the idea it's out and combined with the dictionary evidence of record again this is a fact finding and that is substantial evidence in the record to support the board wanted to construe it that way yes like that very much substantial evidence isn't a lot now if it's close if it's close you have to defer to the board if a reasonable fact finder could find as the board did based on the evidence of record you refer yeah what circumstances do you think we could make a judgement about the perception of the ordinary consumer of these services that would differ from that of the board if there was conflicting evidence in the record not just attorney argument i mean that the evidence is basically stipulated to ease electronic long thought you put them together and the board found there's no change in meaning now in a case like the sugar and spice case they're yes sugar and spice were in gradients but they also conjured the nursery rhymes with sugar and spice everything night so that was enough to sort of take it out of that category of well the only perception would be one that is descriptive maybe it's going to conjure that nursery rhyme but not in this case and this is much more like the pats dot com case open a case where there is even the face of the idea was very broad but based on what and that was a us based application based on what appellant was doing it was very clear that patents were a feature focus of that computer software for tracking things and so patent due date for one of the things that it tracked and it was nearly descriptive there were four of those services of those goods they were patent related so to hear these are law related services so to get you over that line to suggested that you need more you have dealt quite a bit with dot com and those are pretty comparable when when you're going to look at the electronic internet world that we're in in today it is the office policy and practice and the t t p it's address the economy quite a bit at that when you just take the e prefix for something that's electronically provided over the internet and combine it with a term that is otherwise descriptive or generic it is not going to be enough to take you out of that descriptive measure generic  category by itself i'm curious about this aspect of the distinction between suggestive dance and descriptive ness and that is presented by this case and by open to all the disparity between the scope of the service presented and the scope of the term that used in the mark the question is when does that become greater enough to lead one to conclude that the market suggest in this case for example you're dealing with  very broad term assuming that lex means law but a very narrow search and the same thing was true and open to all in other cases the converse is true where you would have a very narrow of many many dishes on my on my menu is there a point to take that example as it is it's a very big point at which even though the term is it something descriptive of something that i do it is so small a component of what i do that it becomes suggested i think there is a point at which you know if it's a really sort of obscure point of what you do i don't think that we would find it merely descriptive because it's you're looking again at what's the purchasing public going to think when they when they see this so chile can case over a restaurant services they're going to know your mexican restaurant be suggestive of a store that sells house office products on with the fact that they one of the things they sell are staples would be enough to defeat that claim on the grounds of descriptions i think the mere fact that one of the things that they sell wouldn't be enough i mean if you look at it at grocery stores i don't think if you had you know the fact that they sell you know so many different items and you name the store one of the items i don't think that's enough now i  haven't checked the office records and practice but i think it the point you're making is it's a good one it's not the situation we have here though i mean this is a term that would be descriptive many many way that somehow disguises or masks what they're actually doing i mean we are you know the mark you get a mark for specific goods or services and you want people to be forthright and accurate  that and so you know that the questioning sort of reminds me a little bit of the lawyers dot com case where in that case reed elsevier had removed lawyers from the id and trying to get out of the generic in its refusal in that context a know we don't we don't like that so i think if you you've got to look at what what the services on their face are and what the you know the palin is actually providing and here we have an intent to use applications to really we are quite limited to what the identification of services is we look at the dictionary definition and we look at the the purchasers lawyers and what are they going to proceed when confronted with a lie they've got to understand it to have something to do with a lot of the legal related  services and yet on the face of it they they are so you know when you have a broad term like this in some ways it's almost more dangerous then than the converse if what you're what you're talking about in that it we certainly wouldn't want to take  commerce you wouldn't allow someone to register e commerce for some business related function that's done over the internet you no matter how narrow and specific it might be because you don't want to take that term out of the public domain until such time as you know the party could show that people actually associate it with me and that's one of the options that appellant has here we're not this is not a generic this refusal this is not saying this is incapable of ever function as a trademark right now the p t o and its gatekeeper row are not permitted to register terms that are merely descriptive on the principle register and for those benefits of expo city and the right to exclude others that the principle register gets to to registrants we're saying right now and you you can't get it because you're really descriptive but if you can come back and show us with evidence at the public it's no shades elex with your services with while you could have well you know one being brought in the other being narrow should focus on whether or not the the relationship between the market in the goods and services provided so again the the thrust of our point is that services and at the last minute right we were about to get rejected yank lawyers out and still try to shove the rest of this corruption through we've stayed true what we do and the description has stayed relatively the same throughout prosecution finally there are many other registration or or going out and trying to exclude others from using the word lax because there are so many other not only groups who currently use it and have a new state before ours but also have reduced ratios for a new conclusion we just point out that we are not asking to proceed directly registration simply to the