can call the genus in your registration papers but the board to find the penis is corn cakes and rice cakes what did you put in your registration papers of originally the identification w rice tins as source identifiers and identify real foods as the source of the products and if i may i can of corn and the grains of rice which are pasta are popped when they're exposed to high heat form a product that as the board itself recognizes is differ now it would not be labeled it's a different genus lives are very distinct products is it i mean if you say the genesis corn cakes yes well it's made out of genus on the products that appears on the packaging on the bottom right of the products which are in pictures of which are in our briefs are corn cakes and rice cakes and thins products in a goodie bag for participants in a ten k run i received your quentin's product in a race goodie bag about two weeks ago and i wanted to write tell you that i really enjoyed your product the first three hundred people attending our event were thrilled to understanding that coincidence and rice skins identify the source of these particular products and it dition i believe the secondary meaning analysis  product sampling efforts of my clients have contributed to the secondary meaning that the that the marks have acquired but there are others who for example one consumer refers to having gone in a camping trip and she writes about how her daughter enjoyed the corinth and product on the trap there are others that express their other side patients at pages twenty nine to thirty of our response free products it's critical to distribute the products samples at natural food markets and at health oriented events athletic events and the li proffered ten categories of evidence a secondary meeting that's at page forty thought the fourth health entirely two way or even consider two categories of evidence as we've discussed there's the rare unsolicited direct evidence of consumer perception which we submit is more than sufficient to establish secondary meaning by itself even if the marks are found to be highly descriptive instead of considering this compelling direct evidence however the board instead considered a secondary meaning which it said quote suffers because it included purchasers of crackers rather than purchasers of rice cakes and corn cakes and that's a well it relies primarily on grass roots marketing strategies such as giving products samples to groups and individuals over half of its promotional budget which is considerable is devoted to i don't actually question i if you are correct so the porch considered a survey which it found it suffered because it included purchasers of crackers rather than purchasers of rice cakes and a court case even though in prior decisions it has excluded such surveys up because they polled the wrong consumers for example in the sheets of delaware case or in the spirit international case in fact this survey together with a highly descriptive is at odds with every decision cited by either party on the issue and in those decisions both this court and the board have a stablished three hallmarks which a designation possess in order to be highly descriptive extensive third party use of the composite by competitors disclaimers of the composites in trademark registrations and applications for for competing products or dictionary definitions of the composite descriptive misses the mark lisa meant that this court should look at the entire composite under its own and were present thank you very much important to have a definitive ruling why is the board wrong even it if it i think they recognize that it's completely generic as to snack foods cracker up by the other food product not generic for specifically corn cakes and rice cakes the problem is one of which was that the definition of the genus we agree that the genus is generally defined by the identification of goods which was  amended to popcorn cakes and rice cakes but the record establishes that those categories are of goods are subcategories of crackers because there are types of chris breads and the record established who said crisp roads are types of crackers so thins is generic for crackers and i think the record shows pretty definitively it is then it's also generic for also categories of crackers which would include rice cakes and popcorn cakes just like flour is generic  generic or popped rice cakes and popcorn it wasn't crystal clear i agree but i think the record is clear that they found that that insisted on error crackers and so reviews of the outfits products use the term thins in a generic manner so it's not just in brand names like we and some magical things but it's also in the text of blogs and and websites where they use the term to end all or case t support a finding of generic missed not not to feed it and this court in its recent decision in that in the coke zero case that's exactly what the court set the fact that zero is used and multiple brand names by multiple companies like coke zero pure zero was r c cola product and various other third parties use the euro in the product name for soft drinks the board said that is evidence competent evidence of generic ness so they vacated the board's decision that zero is not generic and sent it back to the board so just like zero is used in multiple brand names the term of then does using multiple brand names and it also and again also use in him as a generic term in text  one of the think a couple of things i want to say about the genus that supports the fact that rice popcorn takes in rice cakes or types of crackers there are in us about did the board made a finding of that the close there is the board did say that when they granted the applicant's motion to a minute they pointed out that frieda lay we had conceded that the record in dispute this is quote the record industry to believe shows that popcorn cakes and rice cakes are kind of crisp red and th kinds of crackers to pay seven additionally the applicant touts its products as either crackers or sir or alternatives or crackers and the other thing is that i think they implicitly admit that crackers o are relevant because they're relying on registrations of marks that include the word thins and cover crackers but the word thins isn't disclaimed they're saying that that's relevant and that's evidence that ins is not  thank you and turning to the applicants appeal of course the board's findings that these marks are highly descriptive and that they lack acquired distinctive this those are purely factual findings that are subject to this court's substantial evidence review the applicant's arguments that these marks are double entendres that again was that issue a specifically considered and rejected by the board that is another fact finding th entitle to differential review but just a couple of the things about this double entendre issue the cases the applicant cites illustrate usually a pretty obvious distinction between a double entendre and a descriptive mark for example polly pitcher from the second circuit that's that was found to be a play on the historical figure model molly pitcher sugar and spice from the c p a that was found to be a play on the nursery rhyme sugar and spice and everything nice in stark contrast the terms corn thins and rice since have no catchy or in congress meaning to the contrary they are they directly describe the main ingredient of the product and the shape of the product now the afghan claims that the term thin has sums as a second meaning that is if you eat these products it will help then you but they haven't identified a single at in the record where they use the term in that manner and as the board found the record is devoid of any evidence that consumers understand that the term thins in their mark has that second meaning so the word finding that these marks are not double entendre raise and to the contrary are highly descriptive marks it is a factual finding that has substantial evidence supporting it because and finally turning to the secondary meaning issue because these terms are highly descriptive  applicant has a very heavy burden to establish that they have acquired distinctiveness and the board found that the applicant failed to carry that burden another purely factual issue that the board found in our favor the applicant tries to over overcome those findings by again recasting the identifications of goods and its in its applications this time trying to limit the channels which right they say oh we only sell these products in a niche market to consumers that are interested in natural organic o free foods sold in natural foods markets well the appian some say any of the applications do not say any of that they don't include any limitation on channel trade or types of consumer and none of the cases that the applicant cites on this point that relate where a court has found a secondary meaning in a niche market none of those cases are in the context of where an applicant is seeking an unrestricted federal registration like the application like the aptness doing here all of those cases that they cited  e in the context of a of a trade of or a trademark owner asserting common law trademark rights or traitorous rights only in a niche market so that's a very different situation than here where they're trying to get nationwide registration rights with an unrestricted identification of goods and and finally even if the applications were limited to some niche market the board found that the applicants sales and promotional activities in those in those markets are limited have been limited the applicant claims that it has a dominant or top share in these niche markets but the evidence that cites for that proposition does not support it the market out of that there are a lying on shows that even in those  narrow markets its sales are dwarfed by by other players like quaker and lundberg for example quaker sales are i think over two are almost twenty times as large as real foods and lundberg was over five times as large even in the end even in those niche markets and there's another study in the record where that's that study brand awareness and again the brand awareness of corn thins was dwarfed by quaker and was characterized as  second as low even among second tier brands in addition the applicant points to a handful of consumer blogs and you too you tube videos that have reviewed its product and by handful i'm talking about less than twenty and this is a product that's been sold in the united states right seniors so that's not a whole lot of use for a product that's been sold that long and if you look at those if you look at those blogs they use the term corn and thins generically all over case even within a blog a review about the applicant's own product and finally the applicant points to a google search on the term porn thins that mostly returned results relating to the applicant on generic mr ford got it right because they looked at the direct evidence of consumer perception coin ten's and its entirety and rice in its entirety beginning a page thirty eight looked at the specific e mails and by the way there are many in the record more than forty individual instances are cited in the briefs alone there are two small ones in the record and it concluded that these emails stem and her demonstrated direct consumer understanding of the single source the goods that they were consistent with awareness of a single source and these were the emails that's free to lay a light upon not all and if you look at the substance of the e mails consumers don't punctuate like trademark lawyers and they don't always capitalize c and t or sometimes the capitalized one time and not another time but if you look at the substance of the e mails all and that that part of the board's analysis was erroneous so it needs to be vacated so they can quite properly consider the analysis of the market as a whole and using that as a first step and you know i think you can