the more you are fifty's the court my name is patrick rollins i represent the appellant i'd like to reserve three minutes for rebuttal in the trial below the board excluded of foster's registration so this case is about combat what hybrid mark along with the words hybrid athletics and eleven dots below it quoting quoting from the blue brief on them and you say the record evidence only demonstrates that hybrid athletics use the mark two separate parts that are evidence at trial the first is a standalone h on the logo mark and the second is opposers composite mark which is the age logo with the words hybrid athletics underneath and then the eleven dots underneath the didn't specifically raise this in our principal brief but as mentioned by the back to back and back to the concerned the c r bard case from this court if there's a plain error o'clock that this court may revisit issues that were passed on in an opening brief and that's the case so you can see thing that you passed on and you know we did not raise the waiver issue in our opening brief we raised the waiver issue in response to in our reply brief in response to the poser raising that wavers i'm not talking about the instances of temporary confusion that had an off economic purchase and i'm quoting from blue gray twenty but the confusion of a number of individuals was only dispelled after someone from high leader hybrid athletics revealed to them that the highly mark was not associated with hybrid athletics and you and you agree that in the record it's at ninety two eighty three eleven seventy event hosted by the founder of hybrid say hoping to please the founder thinking they were supporting hybrid athletics why should we consider those instances to represent actual  thinking that they're supporting the whole company holding the event and it's the wrong shirt with the wrong love it why isn't the natural confusion well if if it was actual  confusion the tea tab should should not have analyzed that evidence in the first place because the teeth have made clear error by comparing the you're not answering my question why isn't that a natural confusion well we can see maybe prior to applicants for sea state and this is what the paddington case stands for and pammy case presidential case from the t tab and the border was bound to follow that case and in looking at the actual evidence of record the only evidence of the use of a logo on athletic apparel prior to applicants first you state is the composite mark but weren't you arguing for the very beginning that the comparison was between here mark and the stand alone hybrid mark that's the legal error that the board made it is that was your argument wasn't arguing was that the board made legal error by comparing the stand alone leg on the logo to applicants mark the argument you're making now you are going your way below did you ever argue that the comparison should be made between your mark and the composite common law markham hybrid we did not make that your argument here today that you can make mo well in this case both parties were expecting that the opposition proceeding at trial to be based on the registrations and opposer failed to make and so we didn't have an opportunity once pictures were introduced in those pictures do show a composite coming to our right markings why didn't you raise your argument then i mean it seems to me that he should have been aware at that point that the parties were proceeding on one basis now there's evidence before the key tab that should be addressed well that evidence was in our view being presented for purposes of the priority initially and then once the respect to with respect to waiver or with respect to the composite mark because of the registration you were aware of the composite more correct yeah we were aware that the composite mark was if i just a bit here i don't understand why is it that way or well the reason it's not waivers because the opposition perceive it below is proceeding with respect to the registrations and then the registrations were not made of record and so at trial that th common the rights had been appropriately pleaded and had been appropriately asserted at trial correct and and the evidence that was before the t tab at that point show the composite american and my question is why that at that point in time early as august first two thousand and eight and has been using the trademark continuously since that time for the goods and services listed in paragraphs one and two why are why isn't that putting  appendix forty three eighty and forty three eighty one at those pages there's a clear contrast between what rights are being pleaded at the initial stage and asserted at the trial stage and in the trial brief whether closer says it is except for the registration for the services they set forth their registration for the apparent goods and then separately they set forth common law rights with respect to the gym equipment but they do as set forth in the registration so this paragraph right here is only putting the applicant on notice that they are asserting rights with respect to the registration so they only a sort of the registration in the paragraph above for the services and in that paragraph that you're referring to that crosses over forty three eighty and eighty one that's asserting the registration with respect to apparel get you argue that the t tab completely ignore the evidence of a crowded field of similar letter marks will be twenty six but the tab says but quote the only evidence you relied on consist of a listing of registrations that were submitted for the first time with your brief and accordingly were not properly of record that fourteen are you attempting to introduce x your record evidence on appeal no your honor we're not trying to do that we your band in there ok back to forty three eighty one so i'm confused you say the paragraph that spans forty three eighty and forty three eighty one is the paragraph addressing the registration correct and that's limited the composite mark then you say the next paragraph that appears in forty three eighty one is the assertion of common law rights is that correct for gym equipment you know because it says in addition to clothing and fitness services opposer also uses the trademark on a variety of gym equipment yet how in the world do i not read that as an assertion that this trademark they're talking about in this paragraph which is just not the composite mark the common law mark how how do i read that sentence as not applying to clothing a fitness services that that clause at the beginning is clearly referring to the two paragraphs immediately before which is referring to the registrations and that says alone certainly isn't sufficient to put statement in the actual briefing you don't think you were ever sufficiently put on notice i mean i think i'm with judge right now the difficulty for me is a waiver problem for you because i actually probably agree with you on the merits of the p t o made a mistake but i don't think you've made the argument and the now so if the argument wasn't a wave what is your response to whether or not the p t o erred in only comparing the age mark correct correct so there is this evidence before the board that shows the common law composite more of kings and i'm being told now that the board ignored that evidence how do i know that the board did not make its decision based on the common law markings the board did not ignore the evidence so how do i know that how do i know that how do i know that the board did not realize because i'm saying that because the evidence before the board does include those markings well so the evidence for the board we had apparel that fit the services and there was fitness equipment two thousand and eight and a trial brief high recruiter absolutely and i may is that you didn't use the age alone on business services but you didn't use the it's a loan on clothing or at least there's no evidence that you were asserting in this trial that the h alone as opposed to the composite mar that you use the mark on your screen right and so i don't see any evidence in this record of use on clothing of the age alone for common law rights to be attached is there anything i'm missing is there something you can point me to shift prior to the date this run at issue then it goes on we see we have the services we have work out the day and then we have the hybrid store and that's and link on the top and if you see it on the bottom one of the right insight you have shopped hybrid and here you have a picture of just the age w  and the gyms make their stones and we have testimony that if you travel around the country and walk into across the gym you will see miss really understand if you look at the pictures of the stone the high bridge is predominantly on the top of the stumps every time someone uses when i'm not looking at anything else i'm just looking at the age well that's the whole porch analysis on the age now if it was before the board and this is where the waiver she comes in we would know i see what so what you're saying is  page fourteen and page twenty four poster says that the board proceedings were never about congress and then with respect to the dissecting of the common law marketing because it mark it would be its common the right to trial and it's clear from that it's clear that the four committed legal error here in its analysis and by raising and then considering the wave com going to the last full paragraph on that page are up your opposing counsel put it in front of you yes all right what's it say highly never raise this issue with the board highly never contested hybrids common law trademark rights the problem the border crossings were never about the extent of