alive and then we substitute in the river of full trust after she passed away the starting point or the issue this warning is a statute and the statute expressly says is section ten fifty two the four of the trademark act that a trademark is not allowed when the applied for for quote is is the applicant has used mark your honor for some time but that has to be compared to the industry that it's board below never addressed that threshold question of whether the word is primarily merely a surname and primarily in the statute actually doesn't refer to the use of the term in the marketplace that actually refers to the meaning of the word is it in the dictionary is it wasn't a surname of a founder which it was in this case that's what primarily means and there was a recent decision by the board that i learned the court to in my twenty ha a letter written by susan high tower which really lays out exactly what we felt the board should have done in our kids just because it's not a little trademark act that you first have to determine our future five can find it here yeah it is fact long been established however that whether is primarily merely a surname and whether it has acquired secondary meaning parts separate considerations under the trademark or and the board never looked at that threshold consideration and the reason that's so important because if you don't look at it whether it's a surname then you have nothing to measure secondary meaning against the stronger it is has a certain name the more descriptive and applied for mark is and that's one of the the board disavowed using that five year presumption that's not what they did in response to the size you present my response is the five years did not change the public perception as to what that move the public perception and that's the critical test did the public perception of this word change a little bit because of applicants activities and there is no evidence that it did if we were to look in a dictionary today if we were looking through it at a dictionary thirty years from now when we looked up the word schlafly we're not going to find its meaning is clear it's not going to be there no one is  relations effort here we go on page fifteen of their decision they say well playboy referred to schlafly as beer in usa today was a today simply on street journal right right referred to it as she laughed but that doesn't that doesn't mean public perception has changed it just means there's some public relations effort it's like a candidate running for office and this is where the dollars come in because the way the board is opinion is written to say well they spend a cent money be i mean they'd have to spend billions of dollars to change that public perception and still may not change i mean who who would just you know slap is obviously a certain size and they can't so we had the case by the fidelity to the statute which as the young hard decision says if there's a good reason for this because anyone who has his name should be able to go into business should be able to start a restaurant schlafly restaurant without having a beer company which may be owned by someone else that point come in and saying you can call your restaurant schlafly restaurant because we own the trademark and schlafly there is a strong public interest products they use if that's an irony is case they can protect everything they need to protect by getting other names and they have gotten some other trademarks using schlafly but to just get a trademark in that surnames that is going to put in the can submit it considerable evidence of acquired sticked in this before the board in this proceeding the board in its decision determining that applicants mark had acquired sticked in this spent almost seven pages detailing and going through all of the evidence of the market twenty years not insubstantial exclusive use there is no evidence that anybody else anywhere use the term schlafly relates beer or related products applicant uses its market and its products are sold in over fourteen thousand different retail establishment in fifteen states and the district of columbia this includes places such as walmart sam's casco target another large national retailers it's sold a national restaurant chain to chili's applebee's of a wild wings are sold in different sports stadiums in the midwest  evidence alone is sufficient for the board to find the applicants mark has acquired stick to this before in this case and he's made some relegations that the board was findings without any evidence of public or consumer recognition of the mark of course the board consider that argument in its request for its ruling on a request for reconsideration of the term and that indeed was not well taken i think what the applicants missing is that section two out which is indeed sales success length of use unsolicited media coverage and all of this is exactly what applicants made before the board in the exactly what the board relied upon in order to find a choir distinctiveness opposer going to freak also makes the allegation and a search in that that actual evidence can be separate and circumstantial evidence or direct evidence in this case there's no question that abby going to submitted a lot of circumstantial evidence in which the four can then infer the evidence mark has become a source indicator for its products  so to the extent that this and now also some allegation that you most first term in the level of a script with a mark and then move on to determine whether it's widest exists if it breaks down in the story and context however i think functionally the your honor they don't use the word by itself i mean what they've applied for with this trademark is a reach so we have no objection to their selling schlafly their shively pale ale their products that have for twenty but there are in force no that is not limited to their specified use of those that classification is just you know it is for you know educational for whatever they're not limited to the station and i want to say that nearly everything my policy council cited here would apply to all these cases that involve star names and might apply to their hard collection five years from now or whatever it's gone in our case this is the analysis that we feel the board should have done and it didn't do it and we feel it was a reversible error for the board to jump over the question of whether it's primarily merely a surname and go into this kind of this talk about how much they've spent i mean realize the beer industry is two hundred billion dollars just an advertising industry so all this talk th stepparent you know i've done this and you know they spent you know a little bit here you know really going to measure that against two hundred billion and it's nothing is nothing i mean it's ten years nobody maybe even know