incredibly confusing about what we're supposed to do with the commission's test and how we are supposed to review it but i understand for the secondary meaning tests or seven factors that the commission makes of that those are factual findings right yes or so we would review their finding social evidence correct with their ultimate fighting as to whether their secondary meaning or not is that also its actual determination that we were eve for substantial evidence i believe yes it is the ultimate determination but there are legal soaps not specifically know and are there other are there regional circuits that do not blast on seven factors i think generally speaking the regional factors are in parallel with the factors however the we believe that because of the registration of registration provided we don't have to go through the register mark yet i want to know it didn't you have to prevail on both for an injunction to be permissible so no i believe that to the extent we prevail on the registered mark it's that's an issue of liberty but we need to establish secondary meaning as the data for some fringe group which was fixed by the id and confirmed in the commission's decision as two thousand and three so to the extent for purposes of infringement i believe we have to the step of secondary meaning as of two thousand and three but the validity of the registration is a separate issue as well as this complexity about whether we should registration is it possible that the test should be that you have to find a secondary meaning at the time of the infringement and that if you want to have the presumption of i'm talking about in terms of secondary me in order to get the presumption are that one flow from breakfast ration there would have to be a finding that there was a secondary meaning at the time of the registration right so if i may there has to be a finding that there that there's presumed to be secondary meaning at the time of the registration based on the certificate of registration sell so so there there is as a matter of law secondary meaning in this case because of the cold war days it would be refuted by it so if i may focus on the first legal or the commission committed legal error when it relied on survey that asked the wrong question the survey expert in this case of the commission relied on was sarah fifteen u s c eleven twenty five marcus famous if it is widely recognized by the general consuming public but this court has said in tone brothers quote all that is necessary to establish secondary meaning is that the consumer associate the trade dress with a single albeit anonymous source it's a lower threshold now it's all and i'll get into an example of why it matters but what did miss butler say at trial about the use of the recognized her well first of all she admitted that recognize is a question that's directed to testing what the remark is famous and that's at appendix zero zero nine eight seven six she also admitted that fame is a much higher standard and that's at the same citation when she asked whether she'd ever used the term recognize in a secondary meaning survey before she said no i've never used it before not hstanding the fact that i have conducted twenty five to thirty secondary meaning surveys in the past when she was asked to explain why she used the term and she was pressed on this issue she had no she had no answer  evidence are we just saying there's no survey evidence yes your honor that's exactly right and it's and it's important to note that another survey that she conducted using the same recognized question was thrown out now what did the earlier in this case in this case i can do to up yes these are recognized was improper in connection with the use of the stimuli yeah that's exactly right she didn't he didn't think this isn't the age it is decision yes we're  complete mark infringe how are we to reconcile those two arguments yes trying to think there may be circumstances where shoes that don't have the identical combination of elements can be considered for purposes of testing secondary meaning most of the trans seems to be substantially similar are yes or are and when you get to the infringement issue the question that the issue of identity of the marks is but one factor so they don't have to be identical of other factors tip in favor i don't see where he says that the use of the word recognized as it was wrong at that it just was it had a problem with her choice of control so i believe that he actually with survey stimulus and the other survey is what caused the judge to disregard the survey right but then he in the context of the other survey decided that i was right and i believe the same problems are present if i may i can explain why so recognizes a question that is asking whether you have seen something before and associates a question with that asked whether you associate something in your mind with something you've seen before and here the survey participants were shown a basically a demonstrative exhibit that was in our complaint wasn't the mark the mark is described in the registration and i can cite the page for zero one five one three one and the mark is used in connection with the shoe and so if you look at the broken lines in the registration it shows where the market is here the survey expert asked do you recognize the a part of the mark taken out of context floating in space and converses never shown that mark floating in space like the survey expert did so when you asked the question do you recognize of course consumers are going to say they haven't seen it they don't recognize now that if you asked looking about the survey that he did let in talking about the survey that he did let him ok yet so the survey that he she didn't let him ask the recognize question with  made up shoot the survey that he let in as the recognized question with a part of the design not the mark is the marks in connection with the middle of a shoe so there was no shoe it's do you recognize this design floating in space you had a drawing that you agreed with what would be wrong with saying recognize it as the heightened standard and ask whether you've seen it before and that's not the test for secondary meaning and that's not what this court has said in ten brothers all you need is an association secondary meaning are concerned massive amounts of sales longstanding use massive amounts of advertising and massive amounts of unsolicited media given to the issue more so than probably any other product in american history  what's the legal error so the legal error is if you if you actually reverse on either the surveys or the survey out then you've got one factor which i haven't addressed yet but we believe was was analyzed under of the improper parties absent in divorce from consumers contact and consumer contact and does that mean is it just because they didn't look at the consumer context or is it because they didn't look at the consumer context as of two thousand and three so as of two thousand and thirteen and as of two thousand and three so the proper legal analysis in short form is you've got to look at the relevant time to stop to think how do we figure out what the relevant time let's go to the two thousand and three date we don't take a snapshot do we on that day and say this is the relevant time we have to look at some period proceeding that way so for exclusivity and so on or brawn so for exclusivity of use that if you look at exclusivity of use you can look at the five years preceding the thirteen and as a twenty thirteen the presumption of the liberty requires that the challenger carry both the burden of production and burden of persuasion brown says ok if you want to ensnare infringers you have to show secondary meaning of the date of first infringement so that would be two thousand and three so converse for the burden of proving secondary meaning as of two thousand and three and the challenges where the burden of proving invalidity of the registration in twenty thirteen now here's the legal there you have to look at the right time and you have to look at the relevant consumer so twenty thirteen certainly and twenty three for purposes of information then you have to look at who is the average consumer kate you keep saying just the state relevant population of consumers fact absolutely because secondary meaning is a dynamic concept yes absolutely and that's why if you look at third party uses back in the twenty's in the thirty's in the forty's in the fifty's you can't say that they had an impact on somebody in tw problem in the sense that this writer use evidence that they relied on is missing that some of the features of them are in the finest in the faces there has to be a finding of substantial similarity and i don't see that in the aligned on examples where complete more is not used for example a diamond shape on the bumper right unicorn's with case law as long as there is reasonable substantial evidence to support commission's determination even if some evidence may detract from it should be affirmed and that is what we have here you know we have numerous significant examples we have just joined throughout the whole length of use the converse asserted coming from eighty years ago in acquired secondary meaning and it was entirely up to him are correct and at that point they were looking at a particular population of consumer how are we supposed to say that what happened in one nine hundred twenty eight is reflective of what someone who was a consumer at that point in time at the point of registration would understand but i think it's reflected again by the record evidence and again there's a moving target the congress has kind of move throughout this whole litigation i mean first they were in love with consumer in two thousand and three what a time period from two thousand and three that are we looking at yourself your friend suggested five years of think you got to the exact reason for that but it can't be that too far and how do we know that the evidence in the proper time frame would still support or they would still come to that conclusion and then you can look at this survey evidence to suddenly they don't like and don't talk about the survey evidence i want to hundred twenty s and defeat the exclusivity period they claim you're saying that it's relevant that other people were using it in that same period where they claim exclusive use right right i mean again we would have to say that the use abuse factor or the congress as favors it would have to be limited to the same time period my understanding that right now the court should look at the if you can tell me there's record evidence but we're not talking about the evidence we're talking about the proper legal standards at this i mean these factors are about anyway but if we're looking at historical usage on whether a current consumer would know that is what you're saying what you're saying is that extent they're claiming exclusive reviews going way back to the twenty's that can be defeated by use by other people going back to the twenty's right but i'm saying basically that exactly going to facts here very similar to levi strauss very similar to echo travel we had distribution of advertisements here they were just in the thousands or hundreds or we have you know any years of ever times by three major retailers aga effect of the respondents alleged infringing sales and whether that can affect a finding of secondary meaning that presumes the outcome of the case but we have here is only a it so wrapped like but again this is where i have a problem with the confusion it's like you want to use the evidence that relates the common law mark to wipe out the registered trademark they want to use the evidence that relates to the registered trademark and marketing all of whom did volumes of research looking at the marketplace looking at the industry looking at sales all of whom testified that there wasn't any period during which that eighty period a year period that congress was the exclusive user so why is the continuous use during that period matter it matters because this particular design combination constitutes a style of  and that the problem is that i'm not so sure that the evidence you have supports i mean if it were true that it was consistent use by multiple parties throughout the converse was the only company using this mark and therefore everybody associated with that mark only with commerce and therefore whether the acquired secondary can to directions could you use that nine hundred twenty to nine certainly is relevant to defeat the contention of exclusive use for a long long period pretty you have to be able to refute that evidence by evidence of use by others in the earlier period but once you get a part outside of that and let's look at that relevant point in time you you ask mike calling from the i t c what's the the more current evidence the more current evidence let's go five years back from the application which is the mid two thousand in two thousand  have the forward dictionary identifying a sneaker as a kid heads that has the identical designation is claimed as a copyright here or trademark here identical so that's it's this isn't to the acquisition of the registration so p r flyer sales are not infringing sales here flyers shoes look like pia flyers they don't look like commerce because they're the very same shoes that they've been selling since  forty s so their appeal flyer sales that predate this small window that precedes the application they're skechers sales that predate the small window prior to the application and those scale sales are in the millions and we not necessarily affect the determination of whether the primary association was with congress did you say that another way into a ok specifically find that despite that it that would not alter the question of whether the primary association which is what we're supposed to be looking at if so she ate it with a with a singular source would was still with tremendous standing o standing alone it was not enough but put in this volume of material evidence in substantial third party use during the period at which converse claims substantially exclusive use it's another piece of evidence standing alone it's not enough but good morning morgan chew on behalf of skechers i was going to address the a p a in the dr pam arguments but instead i'm going to try and address the questions the panel has been asking here's the evidence of a recent t that five year period two thousand and twelve converse internal presentation calls chuck taylors a generic shoot and identifies the fact that there's an over saturation of the market that issue now before the court but but it's it's not meant to be a legal word it's in this particular document where they're saying there's a saturation of the market that means it's not just a few uses and this is against the background where let me make sure i get the sites out the first one was forty seven six six eight the next one was forty seven five five four in two thousand thirteen mr c hey for the converse executive wrote two years ago we recognized the gains by skechers forty seven six six nine in another document internal for had a long conversation with ten muti regarding the big hits the converse was taking from skechers so one woman looking at the recent period two thousand and three everyone agrees it's relevant all the way to the present and the last appendix twenty six through about thirty five where they are discussing exclusivity of use there is a discussion of one of your uses then but at the top of appendix twenty the commission decision talks about uses from the one nine hundred thirty six to the present and then there's a long string cite of very substantial evidence which includes that allowed period of time now the courts recognize that out of the seven factors only one is directed at the other six factors are circumstantial evidence the one factor that  direct evidence from decisions of various courts is survey evidence because that's the evidence we're asking actual consumers you're asking actual consumers whether you associate or recognize your or however the questions are being worded that i think  yes thank you your honor we're talking about the chuck taylor here and i want to start with sketchers because getters is one of the primary reasons we're here the question isn't whether the use is exclusive it's whether the use is substantially truth and under this thousand units acquital toe shoes converse in that you sold seven point seven million pair of shoes so that's point three percent of the shoes for every thousand pair of converse shoes on the street you saw three pair hundred twenty cease and desist letters in gaijin a massive massive and i counterfeiting campaign which is the most egregious form of trademark infringement we have sketches documents at appendix zero one seven four zero one seven four seven zero skechers design documents that refer to the twinkle toes as that twinkle toes slim converse copy their copy now what do they do in their e mails they use the word converse with an asterisk so that in like this it's going to be hard to find out who they were trying to copy how do we know that they were trying to trade off the substantial goodwill in the chuck dealer because the copy to the millimeter they copied the bumper to the millimeter they copied the line stripes to the millimeter they were trying to trade off of converses goodwill there weren't they were infringers and that's the reason in part why we're here so they don't count in in the calculus of whether congress was substantially exclusive if i may address the