viewed as a less than substantial evidence that falls short of being substantial i think your honor the way that i would approach the cup a little bit please yes  this by saying that when i looked at their evidence so much it would have it was just conclusory it was just we believe that it's this way because we think this that's the way it's got to be and yet i look at the case law the case law is all over the map i mean it's all very fact specific if i started looking at t t a b decisions i found that they fill in all kinds of different directions forget forget about other  yes or what part of the evidence falls short of being substantial well when you take a look at the marks or as i showed them and there are three there is a huge difference in the appearance of the marks or not according to the finding of the trademark or yes i know sir maybe i could do this with an example i think that would be kind of interesting perhaps to  this i think that there's a shifting standard as to what creates a commercial recollection or a commercial impression i think it's changed a lot if you were back in the one nine hundred eighty s the word might be the main emphasis of what's in the mark but today with galley soundbites and pleading images we've got all kinds of foreign languages involved so now you get down to just how important are the words and if you take a look at our mark what we're in for sizing is not the words but it's the overall design and the color we never apply for a word mark we never even try to get a word mark because that's not what we think is important we think that what's important is the commercial recollection that people have and if they associate that with a certain kind of quality of goods and performance of services then you get a commercial impression in the minds of the people in the marketplace but the problem is you're giving us your personal  what consumers would think looking at the two marks but the trademark trial and appeal board has made findings of fact which we have to review under a standard of substantial deference even if had we been the board members we might have ruled the other way we might have said the picture is more important than the words but we weren't the fact finders they were the fact finders so i think under our case law in order to prevail you have to be able to persuade the panel that the evidence surely basis underlying the key findings of the board was so deficient that it amounts to less than substantial evidence he thinks or that the problem is with the system itself and the way the system is designed when i came in to begin making my arguments i wanted to use the sleep craft case as a standard because i thought that it was more do pot factors but there was a heavy emphasis in the trademark office oh you must use the dupont factors these are the factors that were in the defense circuits case back to its predecessor and these are the factors you must use trying to get to a want to act or test were they just going into a word search or finished with the it would be that as it may is a matter of history or as a matter of the conduct of the board in a whole range of cases we just have this case in front  then it seems to me that the denial of the registration has to be affirmed so that's why i'm trying to get at well what are the infirmities that one might see in those findings because of the findings stand i think the cases over infirmities don't appear to me to be in the finding if the finding was based on the proper standard of review i don't think that they made a proper standard of review in deciding whether they should  examiner's opinion that that's the big issue here and i don't i don't really can think that the examiners opinion is of any significance in this case because when you read the board's opinion the board re all the facts they use the phrase we find x we find why we find see so unless holes can be shot in those findings i don't see how we can reverse even if we would have found to the contrary had we been the board members but if they make their findings based on presumptions of what it's necessary to find and they don't look at the whole art they don't consider all of the elements well wait a minute i think they did look at the mark because the they specifically said yes there are some pictures there and there are some words but the commercial impression is that the words are the dominant part of the mark and the picture isn't very distinctive and it's not all that different than the picture of the previously registered mark therefore we conclude likelihood of confusion of consumers is present now you basically say well they got it wrong the picture is more important than the words and maybe you're right i don't know what but i'm i think stuck with their finding that the words in this particular pair of marks dominate compared to the picture if the system is corrupted from the beginning if the basis on which they're making a finding is that all that matters is the word only then they didn't say that they didn't say you could ignore everything but the words that they said that the words predominate compared to the picture of the house the arguments that they made that the words were that the important part and even said that it's an you must arrive at this conclusion you must get to the place where you say the words are the only part of the mark that is really a work that that's where everything is going to devolve down to and it's in the that they had used a proper standard of analysis to arrive at their decision i wouldn't be here the reason i'm here is i think there's a problem with the system i think it's hurting the entire commercial industry what would articulate what the right i think we're on a slippery slope here i think what happens is this if you make the conclusion that because someone has a word mark because they have a typed mark that means they can go on for ever and come up with that whatever mark they would like to and no one else can ever use that word because they have a word mark once you make that assumption coming out of the starting gate then there's a problem i think that if you do that then whether marks are substantially similar gets down to just a word search i do word search if the words are the same then the marks are said that actually let me ask you a hypothetical question suppose that your application mark instead of having the little gate and house in the background of the words had a huge image of the empire state building and the same words we  might be a very different case that might be prominent enough and distinctive enough to be the dominant feature as compared to the words and to avoid a likelihood of confus i think that's true but actually the words are not separate from our mark they're part of the mark they're part of the shape of the mark they're a part of the design and the color scheme is there for a reason but the the application or the bread the registration upon which the patent office the t t p based its rejection is one that doesn't claim all of those specifics but rather is just a word morrow so far is that is it inappropriate for them to say it covers any whether the word was written in yellow red blue or green the question is here within the market can be distinguished by the consumer or the commercial impression and recollection of the consumer will be different correct but is that the commercial market they actually use or is it the thing that was registered well that's a good question because that's my client trying to find examples of their mark i mean they are they do name brand products and as you can see from our brief the only evidence we have of what their mark looks like is a label that would on a sausage are well my my clients in the grocery store business they go out there and they try and find examples of how this marks then used on their products they can even find a product on sale now that's a collateral issue but but it gets to the difficulty of trying to say what does their mark look like ok there aren't the only example is the one that you see so if we're talking about commercial impression how can you have a commercial impression from somebody having file an application for a typed mark now if that type mark is what they're using out in the marketplace fin knapsack it's the type market we certainly don't look like the type mark if your view counsel is that the ordinary consumers would readily distinguish your application mark from the previously granted registration for the other companies mark couldn't you have brought in some survey evidence which you randomly select twelve ordinary shoppers in you show them the two marks and have some sort of test whether they can readily distinguish the one from the other that kind of evidence would have been appropriate it might have been probative but as i understand the record here there if they're products not on the market serious hard to get that kind of an affidavit we went out to look for it we tried to find it we tried to find you and you found the label you could have you could have shown a thanks so much for the label and then shown them your application markets and tested whether they could see it readily see a different search could you see a difference i mean if something is so obvious in looking at it if you can look at it right and see that it doesn't look at all the same yeah but we are case law says you don't look at them side by side because the question is whether the consumer having seen one in january when he goes to the store in february with the memory of the first label and looks at the second lives of all that's a different company because this lead was very different from the one i remember seeing her months ago we're not talking about goods and goods here we're talking about services first it's goods and i think that's a really important distinction we're not talking about jars of salt sitting on a shelf next to each other where you're looking at the labels we're talking these stores have tens of thousands of items in them they are not we're talking about services here where we're making available to the public all kinds of things none of which are manufactured none of which is the quality controlled by ok so when you ask me why do i have somebody comparing labels our mark is used on huge buildings on sides of trucks on distribution warehouses if in television it's in the newspapers the store provides fans to pick up customers they can't get to the store to bring them to the store but we're offering it was very much the stores have a store brand and therefore the trademark is not only on the sign in front of the store but it's on the label of products on the shelves in that same store and when they do that you will know that because they want to make clear that it's their store brand and you're not going to go into another store  i'm responding to your point to hey those whose service mark for the service of providing a grocery store and i'm playing well you know it is a service mark but grocery stores often sell products that the same company that runs the store itself makes that we often refer to a house brand and if they do they're going to say right on them that they're in the house brands and so there it's a very very remote possibility that a service provider sells whatever his customer wants who walks in the door for retail grocery store services that he's going to put his mark on something that is not the source and he wouldn't do that he could ruin his reputation now only that but you're not going to find his product in somebody else's grocery store because they aren't going to stock something with their competitors mark on it they don't want that kind of publicity but we're trying to say here siri is the odds of the commercial the odds it actual impression in the mind of the consumer that would cause confusion is just to manama's here it's just not going to happen now i know it's not the actuality that matters it's whether it's likely that's going to happen and what we're saying is first of all they start out by saying if that's the word that the marks are similar and then they said hey based on the shell oil case which came out of this court well and if the marks are still are there we don't really have look at that chance at trade very closely or anything because people are obviously going to get confused and we're saying wait a minute here you know you're reaching a lot of conclusions without looking at the evidence we submitted evidence we showed that these people may name brands for stores and i'm request made special brand products they sell directly to their huge grocery store chains they sell to distributors when they do that does people know exactly who they're buying from to the penny to the exact policy to the exact item there is not going to be any confusion by the people that are buying their product but that what that evidence was totally ignored by the people at the tra would mean it was totally ignored you know ways to manage it i never got a comment on it never was well we you know the decision makers don't comment on every piece of evidence provided in any kind of proceeding otherwise every opinion would have to be hundreds of pages long but sir if you look at their brief and you look at all the conclusions they jump to and how they get i don't care about every food what i'm particularly focused on is the fourteen page opinion of the trademark board which is replete with specific findings now you may disagree with the findings i might even disagree with the findings but what we're reviewing here are the findings of the trademark for isn't in this thirteen fourteen page opinion and so for you to say well the solicitor's office brief says this and this and this who cares if what counts is the findings made by the board in this opinion or when i was trying to submit my brief for the t t i sent i was getting ready to send in the three copies and i to them they said i want you to send in three copies just send in one copy because we're going to scan it through our system and it gets distributed we don't need three copies i said well ok if you've got a colored scanner well no it's black and white i said but i have a color client and the colors are very important to my mark it makes it gives you the commercial impression of the mark how can the judges make a decision whether it's correct or not we're not but they're going to get a black and white copy off a scanner so i think what i think what i'm saying here sir is that  the evidence was not purposely reviews there was not substantial evidence to support the decision that they and that if this continues not only is my client going to be harmed but so is every other similarly situated person that comes out before the trademark office i think you think you've made your position neither of them very clear and we've given you some extra time let's hear from the solicitor now and then we'll give you some rebuttal time back morning welcome to the court you heard the argument we don't need to rehash everything in the briefs what's your response to the principal arguments made here today by mr a yes roomier please the court it's the offices view when they went through the decision they were very careful to do to look at the more as a whole i think the office has been versed enough on that issue to be very sensitive to it they look at the market as a whole they looked and they found that the design when you have a word mark like this type face that was granted registration and then you have a later applicant who comes along using the same words but has a design is it possible that the design could context of village in new york city well wait a minute but i mean i understand there's a fact finding here that the words me public are dominant and maybe in this context i have to say there's substantial evidence for that perhaps but what i'm trying to get out with you is are there circumstances in which the words would not be dominant because what i for one would be concerned about would be saying that the word mark me pueblo typeface therefore precludes shelling might not be enough and i'm going awfully close to that rule and that was it was concerned you know i would apologize to you should observe the convention that you don't begin your answer until the judge has finished your question so you were you were sort of going down that road and i wanted to know from you exactly what the circumstances would be when a mark that it's being applied for uses the same word words but could still be allowed be dominant if you have a combined mark where there is a word and a design there's no question that your honor at this right that if the design of the design can be dominant and there are any number of examples of how that might come into play and that's what i was trying to explain by saying well for example the words mean what might be less dominant because they're small or they might be less dominant because they're weak or they may be left on which simply because the design itself is is so unique or so unusual so we are certainly not advocating that there is any kind of a per se rule that words are always taught in this case when the board went through the analysis looking at the applicants mark they found the each of the other elements in the mark tended to reinforce the meaning that that's why that the probate was done with i'm not because there's a per se rule for dominance of words but because we're looking at it as a whole that that's that's what that's what the board essentially threw out and when an applicant ha actual commercial use by the registrant it meaning to the type case words me pueblo are they presumed automatically per se to cover and need possible design of those design use of those words no matter even if the registrant uses them and there are red white and blue with a giant american flag behind it and these with the to any normal person clearly different because you know they're jacketed store some sort of you know you see what i'm getting the registry of the owner of the ark and they're entitled to use the mark on the particular goods identify the application and if you look at rule two point five two which which covers drawings it basically says that an applicant can come in for a type drawing without regard to font or style or color and that gives them the right to change their more from time to time and they use it in any any matter that they want and that essentially the policy behind that you wonder is that registration for that war is brought they have a broad registration for for those goods but isn't there some rule that if you don't use of registration in some period of time that it's no longer good for example you have to be using it so why wouldn't the rules somehow devolve into the manner in which they're using because i can't go into the patent office or the trademark office and and reserve the words you know whatever words i want if i'm not using them so why wouldn't a similar concept apply to how you look at the registered mar how has it been used well the answer is is it the the abandonment sections which have been raised in this case really address the use of a mark in all or color and so we are bound by that to say ok well that can be in the any any form that the op to chooses to use even if it's very similar to to the to do what the other parties use let me ask you a different question goes to page nine of the board's ruling in the final paragraph of the board makes a finding that i think it's very interesting and the key wording second sentence of the final paragraph on page  nine the key wording is quote although there are differences in appearance it is the wording obviously the two are to meet for well below it is the wording that is more likely to be remembered by purchasers i forget words all the time but i remember pictures much better so am i a fluke or am i typical of average purchasers for to put it differently how does the board know that in the case of this specific application with the words in the web below picture in the background and so on that the potential purchasers are quote more i think it's the perception that when the customer goes into the store or is in that sort of a retail environment that they're more inclined to to recall a product by name but how does the board reach that conclusion what evidence are they resting their conclusion on when they say the customers will remember the words but not the drawing well the only evidence in the record regarding the marks is of course the marks themself i mean th interpretive evidence there is a translation of the term i think it goes to the totally impression that the more has is that no matter what element you look at it always comes back to the concept of me probably of the word  believe you have a small village that is essentially translated to me probably translates to my village or my town so when you look at this mark that is the out because mark you always come back to the concept of me problem i will kind of doing in a circle when you say we always come back you're just saying you agree with the board members that the words count the picture doesn't and i'm asking you a different question what is the basis on which the board concluded that the customers wouldn't remember the picture they would only remember the two words web what's the basis biggest it's the brightest thing in the mark and i think that when one looks at this more me point below jumps out at you you have a paler sort of soft cheek you told the wall and i think it's it's the answer is it's in the market so what bothers me is that might be the way it looks to you that might be the way it looks to me that might be the way to look to the board member but we're all irrelevant the only people who count i think average typical purchasers of these kind of good we could never reverse because they're always the finder of fact i can't be right what i can combine with this court's precedent your honor i think that they do the work portions are often called for in the marketplace people go in and  they say going to do you carry more often but sometimes not we have to decide which category this case flows in is this a word on the situation or is this a picture of dominance situation and we have to look at that from the standpoint of the consumers not ford members not trademark experts not assistance solicitors and p t o and not judges of this court either we all are supposed to under the law put ourselves mentally in the shoes of the average buyer of this type of how does the head of the board members know anything about what salsa buyers think or what department store shoppers think when they see a mark well if  seen the other evidence of that in the record or if you look at the other kinds of evidence in the record you have for example number and number of advertisements that show that grocery stores routinely so house more branded products for sauces and salsa and for other products and i think that consumers have become condition when they go into grocery stores to see products on the shelves they were offered boy or produced by the same grocery store that there is so there's there's a fair bit of evidence in the record survey and i just want to make sure i understand what the government's position on this is since the registrant has a word mark not limited to a color a con a particular font or anything how exactly would applicants conduct a survey that you all would deem acceptable what is it that they are to show in comparison to the mark that they're applying for what exactly would they then show to survey participants so i'm trying to get  how would the average purchaser perceive these two marks and if they wanted to attempt to prove that they would not see them as likely to be confused by what is it you'd like them to show well i think obviously on the one hand they have to show the regist point two point five two which says that application is entitle to use them or in any style or form or fluent i think it would be fair to allow them to use the exact same fluent and silent type applicant and so either centrally have near near two identical were portions i don't think you should be able to introduce into the survey the registry and other trade dress i think that would be inappropriate because that's not their what they think the commercial impression is what they think to how easy it is to tell the difference between the two different marks let's give mr church some you know the solicitors in the audience that might not sway that that may sway the vote a little we might have to disqualify him as an interested party and only allow a neutral audience members to opine type of mark applies to the goods which are identified in the application and i can tell you that there is not one good identified in applicants application because we're not applying for registration of a good we're applying for registration a service mark where we sell thousands of goods there is no way we can begin to number all the goods we sell and so there is no way for us to combat something where they say well we only look at what's on the application that you send us that's all we consider when we're making a decision here which was what i was told by the t t a big look no you ask your specific question look like the trademark relied significantly on the  of can you distinguish that case from your case yes i think i can i think it's really important to think about what grocery store services means to you means to everybody in this in this room you take a good size grocery store like safeway for example you know when you go in there you can probably find toothpaste you might find if you cleaning articles for your house for dinner find produce you're going to find me fish you're going to find hopefully a deli if it's a nice big store there's an expectation in the mind of the consumer about what a grocery store service is now i can put all of that into my application on the paper when i file for the for th service mark there's no way to put that in we do this we don't do that we do this we don't do that that tells you what our service is i think there's an expectation that's out in the public for what they expect you not dealing with the facts of the hyper shoppes case i'm trying to get you to deal with your facts versus the facts and hype or shine and yes in that case it was a retail grocery store well and about and the product was the furniture that was sold in such stores and the court found and we have proof of the board rather found and we affirm that in that circumstance there was a likelihood of confusion now how are your facts different from those facts from that paper shop's case well sir i think i'm trying to decide how to distinguish that in my brief distinguishing a large store which sounds you distinguished that in your brief i'm looking at both of your brief you never make any mention at all of the hyper shops case i think sir that it was in my brief to the t t be all that i i thought you meant in your briefs here  hyper shop case five different times cited page numbers and then your subsequent brief the gray briefs the reply brief never mentions it at all then it may be in my blue my original briefs or but i didn't refer to hyper stop specifically when i did let's distinguish retail grocery store services from services that these big micro wal mart's cost goes our grocery store and you have similar market for a salsa product by one company in a grocery store chain owned by another company isn't that exactly the kind of situation that the trademark law tries to avoid absolutely and that's what we were getting down to there that's what i tried to describe in my brief we tried to enter a stipulation at the trademark office because we have never sold to someone so we well nobody can find it but if it were sold if it's actually out there it's never been sold in our store and so how can you be confused about a good that's not sold in the store because you can go into a different store and see me pueblo salsa and think it comes from your grocery yes but would you if it's a house mark are they going to put a competitor's salt on their shelf are you going to possibly if you don't have your own name brands also not every store has its own name brand products that's what i'm saying you can't presume that it's a name brand product because it's on their shelf and if it were a name brand product they would want it on their shelf because they don't want to advertise for the other store so you really have to look at what's going on out in the marketplace what's what's likely to happen we're not talking about is there certainly confusion here we're talking about is there likely to be confusion and i just wanted to mention this thing about if it doesn't appear on the application papers we don't have to consider it and that is their brief oh it wasn't in your application papers and what i'm saying is there's no practical way that we could have put it on the application all right thank you both we'll