could guess what this goods or services are close quote explaining that quote the question is whether someone who knows what the goods and services are well understand the mark to convey information about  authority supports your proposition that such alternative other possible goods or services is sufficient to turn descriptive martinus yes well i think first of all the driven innovations case from last year from this court which describes what nearly descriptive and means and it means that the consumer immediately without any imagination or a leap knows exactly what the specific services are and when you have a case where you have a term that can prize as many different meanings across a wide array of different subsections certainly it suggests you think we were getting our prior along no no i think i think both of those premises are i don't think they consideration i think that's one of the errors your honor if i could just explain for a moment i think first of all the somewhat archaic notation by oxford did not apply to the adjective which is a different definition and the noun and the somewhat archaic notation only applies to the noun the noun is defined as leading a good life more a life the adjectives leading a virtuous or in later use a comfortable life i think there's a distinction there and the in later years comment by oxford i think you're equating kundra wife with a healthy well i think it's a bit different i think i think there's different between a comfortable life and a healthier nutritional or physical health from a physical standpoint life i think it's a different meaning and that's what i think drawn it driven innovations says certainly services from blogs yes but well living has many different meanings do you agree that one of those  wife i do but i think what the what the board found was it means healthiness well healthiness cuts across so many different specters spectrums and just looking at the examiners evidence nutritional health it means physical health it's used as financial health it's used as mental health well live and these are the terms even if you take the board's decision and looking at those examples it cuts across a wide array of different industries  living and put it with lab it's really an aspirational mark just like one of the cases we submitted for vacuums healthy home what we're saying is well living lab test your products you can have a well living philosophy a well living life and i think that's what the consumer is going to have to parse through it's not immediate and i think the board even acknowledged that the board said the definition the dictionary definition which again we think it was an error to say it's someone i care but they said yes we recognize consumers are going to are going to associate that definition your honor we submit that should have ended the inquiry that means there's more than one definition that the board found consumers would consider that means there's multiple steps that the consumer would have to go through so they can look at other evidence now they can look at  if you take the other evidence around i do think you look at it we're not we're not suggesting otherwise but look at that other evidence look at how many different uses of just the general word health is use nutritional physical financial health mental health health insurance but again i think it's aspirational your honor because we're not swen not selling well living labs we're saying test your products here and you can have a well living life what that means to consumers could mean any different number of meanings and i think that's what all of the evidence reflects not just the that's not of interest or dissent with all that well certainly that would be the fall that your honor but we would submit that we think that this is not a mark that requires showing a secondary meaning we think it's a suggestive mark we think the driven innovation in question is yes yes your hon r i agree with that and i think that driven innovations case dot blog and the definition was services provided on blogs it certainly suggests what the services are but it doesn't specifically describe them that's what this court held and it doesn't mean that the consumer is going to immediately go to what the services are there has to be some imagination some mental leap and i would just add you wanted to stress that the definition of general health the test i think we all agree with this the test isn't well what would more consumers believe that's not the test the test is with the average consumer consider a number of meanings not with more consumers go with the predominant meaning or would less consumers it's not  a go with the dictionary meaning it's not a quantitative analysis and i think that what the board found here and i think this is legal are number one when they said we acknowledge that consumers will associate this mark with the non descriptive dictionary definition that should have ended the inquiry second on the factual error it's associated the somewhat archaic notation with the adjective and that's not the case oxford dictionary is very clear on that and it's a different meaning  of the quote i read from the t t s decision appears to be nothing more than its initial summary of well living labs arguments we're actually in the decision to have decision is there an affirmative analysis of what i think your honor it's certainly of the end when they analyze the market as a whole don't live in land and they say it conveys no more than the sum of its individual parts it immediately informs consumers of apple can scientific research and product testing services a better feature a characteristic of services and there they are rejecting the notion that it suggested in congress a double entendre or any of that and that's correct because there's only one legally significant meaning of well living and and all they say is ok somewhat archaic means some people may still be aware that is not the same as a finding that consumers have that m apparent when encountering this mark for these services which involve human health and wellness and what word leave that that that definition someone very good in say we give this when they considered to what that finding i should say and what the meaning of well living is we have to look at what it means today because registration is always assessed at the time the application is pending on the record of public two together yes your honor that directs you to health and wellness meaning that's the legally relevant meaning here because terms can have multiple dictionary definitions and they can mean things in other contexts we care about for is if it has a meaning in the particular context of the services at issue that's the relevant meaning and that is the meaning here all of the evidence of third party use shows that it's referred to it that they're referring to well living as a healthy life as well miss wellness programs for well living and when you combine that with flab for these services that relate to research in the field of human health and wellness you have the human health and wellness meaning is directly there's corrective of these services and that's the meaning that consumers would perceive because as judge well acquainted out its consumers know what the services are they know it's a lab that conducts research in the field of human health and wellness what's the meaning of while living to them this record shows it's healthy to health meaning two meanings will take you out of the description this finding is very rare a true double entendre is a very rare scenario and it only happens in a case where both meanings are readily apparent and both meanings have to be well me device for children falling into wealth that would be a true double entendre that could be if those were the goods i think yes that that's probably true because the health meaning wouldn't really be the meaning that you that's that applies there but you know it's a case like sugar and spice the colonial stores case that was a situation where the nursery rhyme common well known well recognized nursery rhyme meaning it had an independent meaning of the constituent elements and that was a double entendre case but normally if it's two possible meanings we were not it's very hard to get around district in this unless you can show that those meanings are both apparent so the synch case that was that in re k to court case not a precedent of the board but that is an example of where the record had two definitions both of which were equally plausible in the minds of internally didn't contend that the easy to use meaning was merely descriptive there so the board expressed doubt they said we were not convinced it's merely descriptive because we have these two equally relevant meanings for these but the consumers would appreciate that's not the living is a big term because it could be all these different kinds of health they're all human health that's what their identification of goods reads human health we have to have specific identifications that people understand we all know that health involves several parts of fitness diet nutrition but that doesn't mean it's not merely descriptive we know what helping compass is and that is just one aspect of human how their services encompass all aspects of human health the court has no further say some people recognize the dictionary definition it says some consumers what other consumers are we talking about in the analysis here we're talking about and what the board is talking about is consumers of my client descriptive is nearly and only descriptive not just suggestive of the services and with no mental leap and no imagination the consumer goes exactly to the specific services from the descriptive definition and i think the board's decision there means that it's not really descriptive they refer to consumers and they do say may and that's doubt and as in the sense case that's fish and i would think to make it suggestive any doubt still in favor of the applicant here  the second point your honor in terms of the definitions of the definition in my client's application is product testing and scientific research for indoor environments regarding human health product testing for human he even taking that decision accepting that decision of the board that looking at the examples the examiner submitted health means a lot of things and the board itself decided that in orrick the issue and the mark in that case was healthy home the product was hepa vacuums and the board found health means a right variety of things it's aspirational it could be human health it could be environmental health it could be a number of also makes it even less descriptive what is a well living lab what does that mean to a consumer it's not well living product testing what's a well living lab or it's not product testing lab i think i think the  examiners position here and the directors position is a little too stringent when talking about the merely descriptive test so that's the point of that or a case they're saying health means a lot of things he cuts across a wide variety of different meaning that the consumer is going to have to parse through and they will not make immediate leaps they're going to have to use their imagination lastly i want to stress the dictionary definition get a dictionary definition again the adjective which includes comfortable life in a later use comfortable life is totally different than health and wellness and i think it's reasonable to say ok test my products and i can have a comfortable life or have a comfortable philosophy i think that's entirely reasonable and simply to say well we're going to reject that because the somewhat archaic notation goes with the noun which is a different definition i think that was clear every year on a we respectfully submit and that means this case should be reversed unless there's any questions