words fraternal financial and of acquired distinctiveness as a service mark for financial services that are provided by my client modern whitman which is a for eternal benefits organization the correct answer is substantially explosive is very important to and the degree of exclusiveness is that i think one of the things the cases of the case line of cases the court should be concerned with whether we're taking words away from competitors or to my clients need to use these words to be able to fairly compete and i think the record shows now and i think for those of us that have been practicing for a while the situation with the internet and web searches now gives us a much higher degree of confidence and in the old days say when i would start practicing in the eighty's you would have to go around and pull brochures from all these different surance companies to find out what they're doing but now all you've got to do is have the examining attorney says his or her computer terminal and type the words in google search or one of those other search engines and they get all the web pages and and most businesses now have a website have a web page because as you walk around town o the sidewalks you have to watch out for people who are glued to their cell phones reading e mails or links to web pages or or things like that don't you agree ten fifty two athens discretionary semantics that yes i would agree advertisements you know the only the only specimen that we're considering of use is the is the web page that appears in the appendix at so you get two affidavit of continuous use and sales figures weren't sufficient and i don't think you rise to that file and you do you know what i think if congress had wanted sales figures or of congress had wanted consumer surveys it certainly had ample time to say so and it and it provides a a statement that if you can make the use statement the length of use in the substantially trademark office i'd have no trouble at vising my client which are confidential information should be confidential but the need trademark trying to appeal board has been my experience to procedures for an intra parties cases you get a letter that says our standard protective order applies unless you unless the parties do something to remove it with the next party case they don't do that and i think somebody with a fo request would take the position that there's no rule that says that the information stays confidential and i mention the possibility of a district court case because that alternative is mentioned in the for a trademark registration have a full and fair opportunity other considerations might be dip are they represented by an attorney or was it a fact or an issue that was clearly presented by the tribe you know when addressed and important to the decision and so that gives adversaries so let's say you know later my client susan infringer which is not kind of play to disbar as i know at this point if you stop at the board don't go to the federal circuit don't go into the eastern district of virginia they're going to say ah it's not distinctive they live in gated it because the board made a decision they were represented by counsel it was central to the decision we don't want  piecemeal litigation we want repose just like the supreme court encouraged us and therefore that issue is settled and i think we had one case where the standard for collateral stop i was in unseated by the eastern up third five eighty five in particular pages five ninety two five ninety three where the eastern district of virginia applying collateral estoppel they listed five five factors first the issue sought to be precluded must be identical to the one previously litigated to the issue must have been actually determined in the prior proceeding three the determination of the issue must have been a critical necessary part of the decision of the prior proceeding for the prior judgment must be final and valid we can read why don't you why don't you deal instead with a case that the government raised which was norton the courteous which is not mentioned in your reply brief so you have an opportunity to address it  where you you've got three minutes left i think i would like to reserve it for a bonus or any immediate russians h the court's precedent such as the louisiana fish fry price case your honor pointed out so you really don't know don't need to go down that path there was a question you asked appellants counsel about the confidentiality of evidence submitted in connection with two f proceedings as between going to this court on a close record or going to the district court and the p t o doesn't take any different position in those two venues the position of the  that anything that an applicant wants to put in the record to support their claim for registration becomes part of the public record what we usually do in the district court is negotiate a protective order that says you can show us all the new evidence that you want to put in and we'll agree to confidentiality until such time as you submit it to the court to prove your case at which point all bets are off and it's a part of the public record just so the public knows what was used for our decision in that case where the court's decision to show that the market did or did not have secondary meaning required stink of us there was also a question about collateral estoppel and b in the hardware in section two f disputes really are kind of the type of dispute that really doesn't lend itself usually to collateral stop will be because there are so changing over time you're constantly supposedly using the mark over time you're spending more money sometimes on advertising your sales will change maybe the way you use it will change those facts will kind of be the exception to the typical rule of collateral estoppel so that's a case where you wouldn't really have to be very concerned about  advertising expenditures which were not in the record your sales dollars unsolicited media coverage showing that the media accepts your mark the consumer declarations or services on the net none of that is in the record here unless there a o might find valuable if if the court beams proper that remained of this case and and the suggestion that that that they should implement this rule which would then perhaps give them i think you would being pragmatic frank mystic people would recognize the chances of the applicant in this case coming back to this court after arena end with the decision with appropriate there was no conflict of interest in this case that the owner has always been in the real party has an interest has always been modern women of america but i think the appearance of propriety and giving the judges a chances is important