and in particular we believe that a legal error was committed in the way that the t t a b balanced the du pont factors particularly lead with its failure to credit the lack of actual confusion in the factual issue that we believe is not supported by substantial evidence relates to the new categories of purchasers that were created by the t t ag namely what i call a fair weather fans and the gift gi changed one hundred eighty degrees its argument now on appeal because of the way the t t a b ruled in this case and what i mean by that is at the t t a big and this is a quote from their break from their opening brief at the t t a the southern cal said the products here are typically found together and certain locations well that was their argument before the t t a bit and the t t a b came in and said there has been sufficient opportunity for there to be any actual confusion and that's the reason why there has been no actual confusion for the last eight years and in fact for often on periods of time for the last hundred years this record is devoid of a single instance of actual confusion and what the t t a b said and what southern cal now argues is the reason for that is these products are sold to get there's been no opportunity for them for there to be any actual confusion but here is what the evidence actually shows and this came from southern cal the only investigative report the investigator f products have been so sold around the country through a variety of stores failed at the product sometimes were sold by exactly the same retires and in conclusion found numerous stores that actually carry goods from store which has all of the hats from all the universities there and i want to buy a u s c hat purposefully a little ambiguous at this moment how do i know i'm not confused because your honor you walk into that store knowing the difference between the university of southern california and the university of south carolina you have by the way why are you wearing crow john colored on your tie i thought interestingly that's a point that i wanted to mike with respect to the ne usa or the new issue is us there is an agreement between the university of southern california and the university of south carolina that recognizes that for fifty years prior to nine hundred eighty one there was not a single act of confusion a single bit of evidence of actual confusion regarding the u s c more so why is that the case the case is look and this comes to the first part of your question because i'm going to be careful and i'm going to know the difference between carolina red and california red yes or burgundy whatever the right differences yes that's exactly why the conditions of purchase your honor when you're dealing with a secondary source identifying more such as the say we have legally i tend to call marks and that is probably the largest touchstone of confusion is in that your honor in a case of primary source an indication how would absolutely agree the difference in this case is this is a case of secondary source identification and what that does is at least the purchaser into the decision already knowing what he or she is looking for they come into the store knowing that they want to buy a trademark piece of clothing or or product that associates themself with their particular college state but we also see instances of sporting goods new york yankee hats where they don't follow the color scheme and in that instance your stylized s c is regally identical to their stylized s c it would actually in that instance be impossible to know whether i got s c caroline or a california wouldn't ya know we don't believe so let's take your new york yankees example pink p so i don't have the colors to identify which which i got about not a caroline or a california but you know because you walk into the store knowing that the south carolina baseball team has a fish tale log that is different it may be legally identical but it is sufficiently different from california from southern cal interlocking athletic logos and sufficiently different from their baseball logo you go into the store with the preconceived notion that out walt the university of south carolina fit we follow the fishtail logo because it's got the low bars on in it but you go in to the store knowing that you want to purchase a fishtail design and you'd know that that's the university of south carolina's baseball changelog one of south carolina most famous markets if you look around particularly in the state of south carolina that logo probably appears oh more close model products than any other then maybe any other of the south carolina a lot of it and so you know that going in you are a the conditions of purchase when you go in to purchase a secondary and then a fire trade mart piece of clothing leads you to the south carolina mall and you're honored you only have to look at the  one instance the standard character mark doesn't have a logo on doesn't need debt and could have fish tales you're right your honor but less test same character more problem with the standard character more is there is a limitation in each of the classes in three of the classes the term university authorized as she was in the last class to class twenty five the clothing class the term university controlled as she  those terms mean exactly the same thing that's what southern cal told the trademark office when they were prosecuting their trademark and here's what they say right in southern cal told the trademark  they call the limitation and this is when they inserted the term university authorized they said that that was a limitation a limitation of the t t n be said university authorized is not a limitation we case because again here's what the here's what southern cal told the trademark office they say it southern calif trademark clothing is all for and sold through university authorized channels of trade to ses perspective and current students alumni fans of its athletic teams this interest to its campus and this is the key others designed the cachet of its authentic collegiate style cloth what that means is they're selling to people who recognize the secondary source represented by that logo by s c and if you read a university authorized to be different than university control then university authorized has no me it's meaningless every trait nor none of them have any meaning that none of them have your watch or know your argument really is that none of them have any meaning because they all just mean it's my trademark honor that's exactly right if university authorized does not limit their classes to university control then you're right that that none of them have any meat but it would go the other way that university authorize has no meaning and it's just the same as having a trademark where the university control does have a meaning enters different from the other to another way of life and yes your honor you're exactly right but if that had been the case did they southern cal right to authorize use of its trademark otherwise it's not a trademark it would be an infringement aren't you aren't you are looking at the rejection from the p t o was only yes to one class the clothing class everything else was allowed applies to the trademark the this the same standard you know if they added university authorized to the other classes we don't know why but they did and then they argued about they said the reason why and said the restrictions including the university authorized mid something and limited the trial and that's why there was no likelihood of confusion but then when the board got outside of the context of our  court can decide is that t t a b fail to balance the dupont factors the dewpoint factor which the oh were simply avoid it was the credence given to the lack of actual confusion and that's a factor that this court can consider on the legal question of likelihood of confusion there are so many other factors including legal identical calendar you're exactly right your honor but the number of factors is a rout and i'm sure that mistrial is going to show you a chart that shows x number of factors were decided in in southern cal spite that's not the test the test did based on the totality of the circumstances all the factors well and here with the lack of actual confusion the lack of actual confusion evidence that factor ought to take the dead and all out way all of the other factors it's my pleasure to represent the university of southern california in this appeal i have a couple of demonstratives that i was hoping to hand out those are close to south carolina colors and we should have got their act together honor look we don't know what a lawyer for us he was thinking at the time wait here she proposed authorize channels as opposed to university controlled stores or opposed to nothing at to nothing at all all we know is the following there was a company selling socks called snake creek which had a registration in class twenty five the examiner thought that was a problem it was only in class twenty because it was rejected and instead examiner said no for class twenty five which is the class issue it's going to be university controlled so that meant for that class things  bookstore or other mechanisms work the university was controlling the sale so university authorized means nothing well i you know honestly doesn't mean a lot to me and i think it probably didn't mean a lot to the examine would not find is you know universally authorized channel of trade something being sold by south carolina in a government building where there might be selling something else but i don't think it's a huge meaningful distinction but i do think that it's actually correct that the only piece only limitation is from class twenty five and if you read that limitation to mean same thing as classes six eighteen or twenty four then the class twenty five distinction months these universities these marks have been in use for decades if not more and there's no record of actual confusion here what's the problem first your honor they have not i want to comment on the record because the record does not actually reflect that fact what you saw thousand and four two thousand and five actually after the close of discovery in this case what we know is that there are successive periods of abandonment and mind use of se by the university of south carolina there is no record of volume of sales all we know is that they started selling hats in one thousand nine hundred seven and they started selling other apparel in two thousand and four that actually failed to meet their burden to show any evidence of volatile so we really don't know how many sales they made and what we do know is that the sales that they did make were made almost exclusively in south carolina and a little bit around the fringes which doesn't address at all the potential or likelihood of confusion in the event of a national registration where they could be selling everywhere so so so that's one thing the other thing that's important to note about the record is that we know that the limited sales that south carolina has made of hats starting in one thousand nine hundred seven and apparel two thousand and four were made with secondary identifier ninety nine percent of the hats and i think eighty percent of the clothing and secondary identifiers that's relevant for purposes of understanding why there might not be confusion it's not relevant for purposes of analyzing their attempt to make just ration because their registration is without limitation also by the way there was discussion about colors it's without limitation as to colors so the registration has to be understood broader finally your honor i would point out that we need to think about the food chain here in terms of when goods are cheap like this and it's been acknowledged in several cases including the smack parallel case from the fifth circuit in two thousand and eight which was a case involving collegiate apparel and u s c was one of the parties that when these goods are cheap they're impulse purchases confusion is not likely to ever be reported how do we can corbett who is the director of licensing at south carolina or not whose testimony appellant lives how would he know about instances of confusion and a five dollar sale perhaps where corbett or south licenses to see l c which in turn licenses to a manufacturer like new era which in turn licenses to a retailer like walmart or coles or bed bath and one of these big national chains do you really think that there's somebody didn't realize at some point they bought the wrong hat that's in play would ever make its way to mr corbett such that he would know and be able to testify about instances of confusion it's just not likely to happen in cases with goods of this nature so i don't think the the old given the failure to meet the burden of proof with respect to evidence of sales and the other factors i've referenced plus the fact that there are so many cases that say likelihood of confusion is hard to evidence of actual confusion is hard to come by and therefore not a critical factor particularly in a case like this i just think that issue is really a non issue and it ties into the point i wanted to make with one of my charts which is the second it's  it's all factors to different factors your honour's this case or at least the appeal of the opposition rises and falls on the standard of review because there can we examine one of the key t a v r just became a sions they talk about the gift giving relative yes why does that cut the other way if i were a gift giving relative relative and i wasn't hat you're buying the mark in this case and you can't get the wrong one and that would be embarrassing to my granddaughter but you don't know that you're buying the water while you're not even thinking in those terms you the notion that there is no foundation and there's there's so much foundation in the record not just in mr stimulus testimony but even carolinas witnesses that when i come back to the point here people aren't buying the goods as is usually the case with the trademark here they're buying the market that's what i want i want to have a mine cougars or my  wildcats or whatever it is knows on that is the purpose is to bite the mark but that begs the question i mean you're i mean but it shows that i'm going to pay very close attention to the mark not just the cheap that you know what it shows is that you're going to want to buy that happy because you think the hat is the institution that you are seeking to purchase the secondary source of but you're not go then stop and think for this five ten dollars purchase i mean that's a whole problem where there was no foundation for this speculation that the board made this gift giving rogue division you are i don't think that enterprise which is a significant enterprise at this point in time and he he he's in charge of us he's catalogs he's in charge of u s sales he talked about the fact that there's a twenty probably a twenty percent died hard fan group and that the rest of the people who are going to purchase particularly in years of athletic success are going to be people who have who know less about a history of south carolina that using as sea as there was of the two universities each using u s c so acting responsibly they sat down and they said all right we're going to make an agreement to divide the use of the mark geographically it's an entirely different situation than what we have here carolina is the game cops carolina is carolina it's a capital c the university of southern california has been for years and years and years as c with respect to its half what it programs the second pick the pictures i put in front of you represent historical uses by the university of southern california throughout the twentieth century of s c and so you see for example just above the hat that at times university of southern california has to use the exact same what they call the fish the fish dial mark but but the interlock and you'll see other representations of se on the other articles of clothing you'll see a runner just beneath a half to the right with something that's very similar to what's in this camera my point there to honor is that the university of southern california has used se for over one hundred years this is a new effort by the university of south carolina and that's why my client has objected in the fashion it has to the registration getting back to the fair getting i think to a point judge rader's making earlier that is probably that is the whole line of cases that we've discussed in our briefs that factor is much less significant when you have a situation like we have here where you have either similar  or identical goods being sold with similar identical trademarks in the same channels of trade those three factors are in our view three grounds three grants three separate sets of rights and when you look through all of the du pont factors at issue this chart was made with reference to south carolina's proposed registration so with respect to their proposed registration the university of southern california one on each of these grounds and the only ones that south carolina is challenging are those which are in bowl they're challenging factual findings with respect to her conditions of purchase sophistication and with respect to evidence of actual confusion which i've attempted to address in my argument today but i think the bottom line in this case and the reason i said that this case rises and falls with the standard of review is because what they're asking you to do is to reverse the final hundred p t b to fight in south carolina's favor that cannot be done on the basis of this record respect to all three of the applications now we have an argument that we tack back uses of s c a lot earlier but we really don't address that issue here very very very quick what how do you overcome that that's that's always a pretty important point for trademark law yes your honor but the way we overcome it is in direct answer to judge wilton's question which is if they lose the gift giving in fair weather fan issue fans gift givers on the very end in the middle of their regular finance students a lot they wouldn't be actually confuse there's a difference in the law between actual confusion and likelihood your own and there are many reasons here why the might not be actual confusion such as it's usually displayed with the the team colors it's usually displayed with team logos it's usually displayed in ways that  against the confusion when you have legally identical marks don't we have to weigh that heavily in the different question of whether there's a likelihood of confusion not here your honor because with t t was the quote mean it may in y close quote purchasers would be able to distinguish these marks that's the t t a b s find it so if the gift giving relatives and fair weather fans go away the finding by the t t a b is that everybody else would be able to distinguish the marks and therefore if they would be able to distinguish there's no likelihood of confusion and that's what imports are likely to result in material injury to the domestic industry the legislative history subsequent case law and it appears all parties to the section agree that the primary purpose of cumulation whether subjective points will have a camera an effect on the domestic industry so that that it doesn't have an alternative purpose of considering the conditions of competition and weighing that in the barrel if there is no mention of that instead of what's  look at the steps you looking particularly at be humiliation part it requires the commission to make some judgement as to whether they're likely to compete with each other right correct why i no basis to sustain exactly what they've done they have merely made the judgment that korea and germany compete japan canada and the rest  the commission is free to exercise its discretion and a few additional factors which could be relevant to the conditions of competition so long as it meets to acquire one that it's relevant to the online purposes strategy and two that they explain they provide a reasoned discussion why these factors are relevant to the purpose of the governing statute because if it doesn't say really it turns the agency in twelve black box if any difference in the diff in the conditions of that were put forth before at no point have we ever argued that there is a lack of discretion by the i t c it's just not unfettered discretion they cannot use to humiliate for any reason or no reason whatsoever  the supreme court has been very clear that the exercise of discretion by federal agencies must be consistent with the language and purpose of the statute it's important because but the congress not only gave them a hear on a p o question discretion was given them by congress it's crucial to this quick to question that because it's not unfettered discretion if they can choose  the review court for example there is nothing in the structure itself that specifically says the i c c should not administer this statute corruptly but clearly that would be an unlawful exercise of its discretion similarly if it did so what they're actually what happens is that judge crater had a question about you know there's language in the statute about how they have to find that there is competition here they did in fact function and that that study factor was  reasonable overlap of competition they also found that imports from every subject country would likely have a discernible adverse impact so those two statutory factors which are the two thresholds for accumulation both of those were fa there's no objection up to that point what is happening at that point is the black box what they have done is they have taken the word may and they have expanded it to represent a practice whereby they can mix in mansion these countries for any reason all they say this pain is that there are different conditions of competition in part because they didn't give us a plaque for ochlik talked about how  the situation in australia france and japan had been a steady decline and how of korea and and germany had continued to incline they talked about the larger impact of the market of bones to the lesser impact on the market of the other two were i missing it then i'm reading the record tiredly differently perhaps no no that's a very good question but but let me just explain what's going on these are this is a big rock they collect a lot of data on these countries they can always find differences between country a country they can always say they can always point to some factor that's going to distinguish  country from another country the point is we don't know going into it what factors they're going to look at we don't know what factors they're going to find relevant we don't know what the standard is as to how they figure out which factor is relevant the division between australia france and japan versus korea germany no one brief that they want is for that the one you know there's a pretty logical distinction the three are going down a remarkable rate the other two were coming same countries in two thousand and one when you have brief that is my question why wouldn't you say there's a difference but not that big a difference or whatever argument you want to make because it's literally not possible to br the potential combinations of countries that they could have come up with mean no one i mean just thinking about that's a pretty big distinction to going up and down but there's a lot of other evidence and there's a lot of other distinctions in the record for example japan as you know in the original investigations they were much bigger player in this market say than australia or france or germany or in europe where is japan in career in asia the point of it is well no ma'am because that you're out of the way it works is that we we follow our pre hearing brief they have a hearing then we file a post here and brief then they decide no one knew until they voted were the same under your theory if there were a group of companies like this by company countries and four of them had made vast efforts to improve and had declined vastly and one of them had shot  up you would hold the war responsible for the actions of the one country right but not necessarily what you would describe at least the commission of the discretion to take that into consideration with or without it that you all can review we don't create legal standards that's in the statute and it says to me what the statute read in we think that it's a basic principle of statutory interpretation that they cannot hammering to the point three of them are coming down they're not hammering well well they may still be hammering and so you keep those together that's a very big that seems to be what the commission said well and why should we second guess that ok that because by first of all they have to decide what's going to happen once the orders are revoked if they come out and they say we've all looked at this and we find that they will compete with each other and we find that imports from every country will have a discernible adverse impact but based on these factors we don't think there is actually going to be a combined hammering effect that's a decision that they the courts could review that's a decision that we can sort of brief a standard that we can brief to and that's consistent with the legislative purpose of kindle a ship you know right now that's what we don't handle what happens is countries just as it had done in two thousand the the japanese producers for example they said japan should be cumulative you know other countries said that they should be cumulative but no one did was to say you should put a strafer as a japan together germany what's your answer to their waiver argument well i think that if you sort of couple of things first of all one point that was made at the hearing was well canada might actually ship more than the other countries we said very clearly at the here he said you can't beat somebody on the grounds that they're going to have more of a hammering effect so we made it clear that the hammering affecting our credit was something that the commission should consider and the thing to be honest your honor there wasn't a way for us to know what they were going to do our generation is not to the exercise of discretion it's not even really to the conditions of competition or looking at competition conditions of competition in order to exercise your discretion our objection is applying discretion in such a way that we can't know what's going to happen and we can't know what they're going to s the simple answer to that question is yes the commission's decided that they're likely to compete how do you get around the likelihood of hammering affections well in other words if you were going to make this decision shouldn't you decided these three really don't compete the same way as france and as as korea and germany the judge radar posit that that's exactly what we did five we found that there was an overlap competition a certain baseline of competition between all the countries that got us past this likely to compete language in the statute which is an exception to keep religion but even if congress made very clear you were fined that the commission as you pointed out still may cheat really it doesn't require us to keep really and what the palace have done in this case is they've tried to transform language from present injury determinations where congress made very clear that if these two factors are met you shall accumulate and try to put that language into sunset reviews which is a different a little framework than present injury investigations where congress said you're doing a predictive prospect commission therefore has wide latitude in terms of the factors it looks at for the commissioners to therefore exercise discretion in the end and the term and whether or not it will accumulate countries as judge will can said before look at the record evidence imagine that looking at the record evidence before it and saying these countries are competing in a certain matter therefore we're going to can really benefit get there and these other countries there are competing in a certain manner factors out there it's looking at factors at will have a bearing on how these imports are likely have likely vibe and price trends for these imports in the market and this is not a new or novel theor commission just came up with in the very first sunset reviews back in one thousand nine hundred ninety case sugar from a european at all the commission laid out its analysis very clearly and said in a prospective analysis the commission is going to look at halloween imports are going to compete it's going to look at such things as differences in volume and price trends and you know this has been very clear for for for a palace to come and say it's a black box we have no idea what the commission is going to look at didn't have any idea there's a very finite number of factors that the commission looks at and in this case the commission looked at factors that the parties argue to us appellants themselves set up their briefs in a manner where they addressed whether or that were already to us by the parties in detail discuss those factors and then came to a conclusion is generated pointed out that these three countries show interest in the u s market while while our these two countries advance how the commission might cumulate their device i think every party like to know that i'd like to know that in this court i don't think it's unfair but just tell us that the standard is that the party or to make an argument that there's a black a it's not the legislative history it's actually the language of the statute which tells us to look at competition and competition is it's vital element of the statute so we go and look at competition how like the competition how these employers likely to compete in the future so we don't need to rely on legislative history we actually look at the language of of the cumulation provision itself and i think you know we there's there's a  hundred eighty s it was also looking at locking in price trends and a threat analysis is also a predictive analysis we're look we're trying to see what's going to happen in the in the imminent future and in the threat analysis the commission was with was doing this test in the late one nine hundred eighty s had been doing the test for six years by the time congress in the u r a a statutorily said we are preserving your discretion to conduct this analysis in the threat context and congress in any way be mutilation and i think the commission laid out very clearly what its approach was going to be is that they're not quite they're not looking at random factual distinctions they're looking at specific conditions of competition that bear on likely future volume trends in likely future price trends and now that we have ten plus years of sunset review precedence out there it's it's really quite reasonable to expect that you can look at what the commission has done in the past frame your arguments in the light of the specific product and industry which you're representing and argue from a respondent perspective that the conditions of competition affecting were particular industry are in fact quite different than those affecting any other country  response is to attempt to get the commission to look at the japanese respondents individually i am most familiar with the conditions of competition to affect those producers i can argue as to our trends i can argue as to why we believe we are differentiated from other countries that are subject to the review but in the final analysis it's the commission that is looking at the entire record and it's within that mean it is particularly within the expert judgment of that agency to draw whatever conclusions it believes are most reasonable on the facts and he didn't care grouping or think you favor it or not that's a that's frankly outside the scope of of our will on that but it's well but then the commission's exercise of its own description if i could take just a couple of minutes and turn to our exhaustion argument because we really do think there is a fundamental problem with the very premise of this people and that problem is that the appellants are asking this court to strike  be consistent practice of the statute consistent interpretation by the commission of its governing statute on grounds that were never presented to the i t c for decision it implicates both of the core reasons that there is an exhaust doctrine both to protect the authority of administrative agencies to announce its own rules and explain its reasoning and also to promote efficiency of judicial review and by you mean waiver you're referring to it as a waiver or if i  would which relates to a comment where her as counsel represented the domestic industry argued that the canadian imports would have a heavier impact due to their higher volumes and that they would have a greater hammering effect for that reason but i don't think that's enough to put the commission on notice that their entire analytical model was being called into question and it was specific to canada canada the you know the because of commissions determination with respect to canada is not even on  about the commission's overall statutory interpretation and i will confess that when i reviewed the u s steel post here in brief site i could not see that that argument was raised at all it was actually the part that they cited appears to be a response to a question asking about whether material injury likely to reoccur even if the commission chose not to keep any of the company of the countries so we don't think that that's that that's there we think this  is we think that essentially all of the conditions of competition that the commission found persuasive in this case were x ones actually raised in the briefs by the parties so that if there's any cooling for responding you know the the appellant's believed that consideration of those factors would of cumulation let's assume for the sake of the record that imports for us trade france and japan are going to be lower in volume than imports from korea and germany the whole point of cumulation is they give small volumes of imports from different countries can add together and have a hammering effect in her domestic producers the mere fact that some countries might ship fewer imports that other countries has nothing to do with cumulation and this is the whole problem all what we are asking is is that if the they want to d q they want to exercise that is discretion to the cumulate they have to explain what their decision has to do with the purpose of cumulation if you look on page twenty six of our brief for example we cite a brief that they filed with the i t c at the cia t v in which they acknowledged that the hammering effect is a purpose of cumulation but that they don't consider that as something that they necessarily have to address that is the whole issue here i'm sorry where it's on page twenty six of our brief where we saw you agree that they filed with the court of international trade and that's the whole issue here if when all we ask is when they exercise this discretion to de cumulate once they found there's going to be an overlap of competition and once they found that all the imports from every country are going to have a discernible adverse impact give us an explanation about why the elmer hawkins is a vietnam veteran who was exposed repeatedly to agent orange he has very nasty ailments he's it's difficult for him and i've described it in my been disrespectful have played games and have ignored his rights to have his climbing her head to have his opportunity to have a decision made on whether or not his problems are connected with his exposure to agent orange and if the court please our specifics suggest that the v a or the deviate is struggling to come to grips with the use of agent orange what it does to these veterans and they decide they're not going to grant him compensation they're going to let him die and he will die it's a severe side statement but that's just they not teen years and it indicates to me it's a court police what has happened and examples of things that the court have done i mean i'm sorry that the veterans administration department veterans affairs have done is they have taken tissue sa fusing to provide to us the results of medical examination of tissue samples that came from bespattered they were ignoring my request to have your doc but their doctors said about your tissue that's correct and they would claims told him that a dozen years ago mr morton how is your arm if this court started intervening in that dead prince administration processes and telling them they have to act faster on disclaim in and give them more information on that claim wouldn't we in effect be intervening in appropriately in their process when we get dows of people coming here requesting please give them a a joint in my case no my case is first know my case ought to be first how do we as a court judge which one ought first and which one ought to have more priority or less you know i don't think you'd be inappropriate for this court to make to deviate faithfully execute what the lower which is played is i'm sure they're making every effort to do so i'm also sure that they make whole pot of mistakes like all human institutions but i'm just trying to understand what standard you would give us for intervening in this case or that case but not other cases and because that's really what you're asking is your room you're asking us to step in and give them an order about how they do their job i'm this is the only case on for me that's been painting for n gentlemen efforts to try and help you along the way but again the you've asked for something we almost never do and that's telling the agency how to do their job if the court does nothing the record doesn't show that they do nothing it just shows that they're making an effort to find evidence and it doesn't come up so they remain and have been five