custom gun market and i want to stress that we're seeking protection just in the custom gun market we're not seeking to register all trigger guard configurations and we're not strictly seeking protection across the entire gun market just the custom gun configuration and yet isn't it isn't the picture that defines the mark now the words that you used to describe it that we agree with that that's absolutely right and of fact when we initially initially filed the  application we just describe it as a distinctive trigger guard profile we amended the description to be responsive to the examining attorney not because we were seeking greater protection and it is just the design that we're seeking to protect and just with regard to the custom gun market this this case and i'll get right to the heart of functionality there are issues relating to whether it's a functional design and also acquire distinctiveness but turning to functionality the determination as to functionality in this case is not only controlled by the mortons are which products cases but the treatment of this application is very similar analogous to the way in which the examining attorney in the board treated the application in work in norwich in that case the examining attorney in the board steadfastly refused to accept that the design of the spray bottle for application of household cleaning supplies could be non functional instead of relying on evidence as this court recognized the examinee an attorney and a board each expressed mere opinions and not an iota of evidence that's what's occurred in this case as a discussion of the principles of lot of that must be applied and discussed the development of the case why that area i understand that the government is now describing that describing more and more which is more of a survey and  an exclusive listing of factors but in fact this decision itself speaks for itself it's referring to the principles of law it states that the principles of law that must be applied to this analysis and that has been the tradition  and for that matter those are the factors that the examining attorney up lied when they examine attorney asked my client to provide information the attorney asked for the information relating to those four factors so the proposition that that the absence of utility patent is important again borton or which which starts with the proposition that the government has the burden to establish a private facia case and so morton or which says one way to build their meet that burden is to demonstrate that there had been some utility at some point i don't have a case that says the absence of a utility patent demonstrates non functionality but it does demonstrate implication per se but again i would i would also point out that's the first factor and in most cases that's the death knell if there's really utility patent it's very difficult to get past functionality and typically when you have a utility pat you also have advertising touting functionality we have none of those here in the most recent case that this court has decided the on this issue them back to you consider the company case which the government relies on quite a bit those are the factors that demonstrated the privatization case the utility patent and advertising howdy in the functionality we have none of those here which again brings me back to my threshold and center point set the central point the government didn't meet its private its burden to establish a prime official case that this particular design of this particular trigger guard in the custom gun market is functional the design instead they if i passed that entire analysis and just declared all trigger guards are functional all trigger guards are older and therefore we  if you were if if you were like i don't cheat and i'm not an afficionado i would look at that more generally but a gunsmith and a collector in this market doesn't see it as an oval or a loop they see it as a why trademark would be preferable direction but there is a heavier more significant burden is there not part of the market recognition and distinctive when one looks at the pictures of all of the other guards it is this is a small difference that experts or perhaps people in this field would recognize isn't that the burden that had to be nat the second issue with regard to acquire distinctiveness us and we recognize that when we get to that inquiry the burden is on the applicant to establish the distinctive or that that it's required distinctiveness with regard to that page twenty eight of their brief with all of the different photos i would submit there's no evidence that those are photos from or of custom trigger guards that are used in the custom gun market for example if are remingtons in there that sell for forty five to one hundred dollars as compared to ours which sells for about four hundred dollars but isn't that burden on the applicant the burden certainly if he showed all of the distinctions that you're telling point we we did in the sense that it's it's the custom custom gun market it's recognized by the board that guns of this quality typically sell for thousands of dollars north of even ten thousand dollars and that the trigger guard that we supply to the custom gun market sells for four hundred plus dollars but i'm trying to understand why that makes a difference in terms of what it looks like and whether it serves that function well if it makes a difference in terms of the discerning clientele somebody in the custom gun market whether it's a gun smith or an officiant i don't know is going to have a more discerning eye when they're buying it but trigger guard for four hundred dollars as opposed to a mass produced a trigger guard that remington might sell for fifty or one hundred dollars  if the court reverses on functionality that's correct roll it might be that you haven't overcome the presumption of functionality which does we respectfully i would i would point out it's not a presumption of functionality it's a presumption that it's not functional and the burden is on the government to establish that are decided is functional they have the burden not us and they fail to meet their the board conceded in the opinion that the record established that our costs are higher and therefore the comparative cheapness of that that's forward but that comparative expense does not favor a finding  record are for definitions of trigger guards as a loop surrounding a trigger a kind of loop a loop a semicircular band of metal so there are four definitions and then there are dozens literally dozens of of trigger guards from third parties that meet that definition so what we've got here is a case where the general shape is functional and there are only in significant parts of it that are potentially arbitrary according to hober and so that's a i have a question though about the record as you say that that you actually the board actually found that the trigger guard or that the design make guard stronger or more durable and they also said that it has its shape because it works better in that shape but i don't see the actual evidence in the record to support those sort of generalized conditions there were  really two things that they said they were not on this third morton or which faction which they said was the primary consideration but they were talking about you know kind of what the in the absence of a patent saying what the shape does they were saying well it's pretty obvious  the bottom middle of the tree which is not claimed in this thing so those are the general observations they were making but they're not really pertinent to the primary thing they're saying we're born just used to own expertise to reach this conclusion on those on those to essentially making common sense observations that were that you could see from the picture or the drawing of the market self but they weren't part of the third morton or which factor upon which they primarily made their decision ok sound do we need to rely on those findings as it relates to functionality since they're really not based on any evidence in the record you don't need to rely on them to sort of find that this was a functional design no about when when if the third factor is relates to competition and i know we've sent encounter engineering that that's really the crux of the inquiry what about the fact that that there are apparently different gun markets a custom gun market versus a non gun i don't know that the evidence shows that there is a custom gun market in fact there was a small blog post they put in from i think field and stream magazine that basically was giving advice to first time buyers of custom guns about things they should think about before they go ahead and get one because obviously they're prestigious to have because they're they're very expensive and so i don't know that there's a clean definite or a clean break between what they want to define as it has to be substantially exclusive use and it has to be continuous use and what we've got in the record is so many similar looking trigger guards in fact that you know to my eyes three of them are identical to me is a small difference might consider it a large difference that it was significant none of them whether it was mr holders at the ration or any of the the customers in the custom gun industry who were had a lot of experience none of them explain what it was that made the difference they all said oh it's distinctive but they did not explain what it was and that's one of the things that the board relied upon was the fact that none of these people could actually explain what made this different and in fact  appellant tried to do that by taking a picture of the mark without the the dotted out stuff and putting in little putting in a essentially a description of different parts of it then as we pointed out in our brief that applies to all the other or holes as well so there's nothing about how they defined it even they couldn't define what it was that made these different so it to me but the trademark application would be not for whatever for trigger guard designs we couldn't find any they put in some evidence of entire handguns and they also put in evidence that a couple of their prior registrations incorporate a trigger guard design right i not there same one that we have before us here so early on that i didn't see anything in my correct that the record does talk about advertising expenditures but but there is nothing in the record that ties the advertising expenditures just to the trigger guard that's correct your honor there first of all there's just a snapshot of one web sense their web page in two thousand and thirteen or a couple of web pages on those the prominent the most prominent thing on the page is swift black or which is their word mark and then there are pictures of the guns in which they say look for the ball profile but as we also pointed out that can be said of any of the other ones so that that is not a way to distinguish these particular trigger guards secondary meaning required to sing to something that develops over time and we don't have anything in the record from what mr eighty four and two thousand and eleven there are no advertisements no pictures of him at trade shows nothing to indicate what he did to basically educate the people in the market he was selling to this is what my trigger guard is we don't have any sales data whatsoever we don't have how much was spent on advertising and there's something interesting in one of the articles that was that the appellate court in that talked about the transaction in which mr  blackburn sold his rights to the hober company and that was that there were long gaps in the availability of this trigger guard and then decoded mr hove are saying and now that i've got it you'll be able to get the product so that doesn't that seems to undercut continuous use as well  into the side of it that part of it could be potentially a trademark kind of like a louis we tone handbag that has l d at shift into the fabric on the side of it but that's not what we have here they're coming in just for the the basic shape of an oval so it's a failure proof ok thank you distinctiveness yes i believe that the the record provides that evidence now but certainly with additional time we would be able to provide further evidence and greater support to demonstrate acquire distinctive mr blackburn's declaration i think is quite clear he's been designing and making this trigger guard since the one nine hundred sixty s and he states clearly he's been doing so continuously and exclusively and the people his clients and others in the custom gun market have commented to him throughout that time how distinctive the trigger guard is and how they recognize his trigger guard even without seeing his name do you agree with me aren't agree with my reading of the record that there is nothing in the record that indicates that the advertising that you that you say you have expended is tied to the trigger guard i would disagree with the advertising touts the unique design the i'm trying many other things well it's that when we're talking about the trigger guard the trigger guard the trigger guard is all we sell we sell ammunition but in terms of gun metal and other gun parts it's the trigger guard and we describe it consistently as the bow sheep profile that is distinctive that is icon that has been come to ship to be recognized for its quality in the gun custom gun market so our advertising wells on that it says nothing about counting functionality it's quite a bit about how to use the unique design with regard to whether or not we're seeking protection just in the gun market custom gun market and whether there is such a market prior to this that was undisputed in the board's decision one peach two they recognize that we're just seeking protection for custom guns and you know on page twenty nine of the board's decision they say they recognize quote the relevant purchasing public would comprise consumers who are knowledgeable about custom guns and are willing to pay an appropriate amount of money for them the board recognize that in their decision with regard to acquire distinctiveness in terms of the government's criticism that none of the clerics explained what was unique or what was i  that's not necessary for didn't explain what was unique about the roofline and they were able to get that registered for their ford mustang but we have done more than that the declarant have said what is unique is the o'shea design and again to the lay person maybe trigger guards look like ovals and loops but all thirty five of these the clerics have said to us it looks like a something that wasn't even discussed or raised by the examinate attorney or at any time prior to the argument before the board at which time one of the board members or one of the members on the payroll posited that as a possibility but there's guard is something that's going to make a difference to the consumer it well we're saying that it does make a difference for the consumer again stressing that we're talking about the custom gun market yes so these are custom made guns that have to be unique so by definition this has to be a custom made and unique piece as opposed to a trigger guard that another gunsmith might make this has to be unique if the design is necessarily important to the gunsmith who assembles the gun and to the officiant how to who collects and purchases these guns so the design is all rifles you need a trigger guard there's no dispute about that but because we believe that it was not functional and that we had acquired distinctiveness if this court holds that the the government erred on functionality and reverses on that but you conclude that we haven't met our burden and acquired distinctiveness then we would ask that you remain had and permit us to amend to the supplemental register ok thank you thank you very much for your time