may please the court i'm jay hines with her for months ago eisler olds and low representing appellant who had kate a limited company of china in its appeal from the consolidated decision of the trademark trial in the field board into opposition proceedings involving serial how can you refute that well your honor this court in stone core group versus specialty coatings in two thousand and fourteen held at the board should not make up its own rules regarding pronunciation marks in that case the mark was stone shield without the between stone and shield in the board held that that o be short pronounced on shield the court held the board's pronunciation analysis was not supported by substantial evidence i think we have a comparable situation here in because the  as along he this again ignores the ordinary rules of english and such words with the i a about a combination such as cardiac ads the boards drooling as to the visual similarities in construction of the marks likewise favors the consonants over the vols again holding the consumers could easily overlook the additional in the  similar preponderance of the every evidence stand no no that is for them what is it for a substantial evidence i think that's your problem you're arguing to the court as though we have the right to decide by a preponderance of the evidence whether  ultimately i don't see that that changes the outcome for me teenie x maybe it's because i have teenagers but i think the word teen ten s ten that's a number i see the word ten i probably can't imagine making a mistake the board well i can see that both marks are arbitrary or coined so they don't have a new thing with respect to the respective goods but no meaning does s that there is no potential for confusion in the marketplace we also believe that the board should have considered this if it's occasion of purchasers here these are industrial and commercial products and they're not sold to general consumers they're purchased by manufacturers of further products or providers of certain services appeal i again would have to concede that this was an address below has been pointed out just to substantial evidence and you have to show that there was no yes i think the same is true as to the lack of any evidence of actual confusion i think the board needs to take into consideration all of the facts it has before here we have nearly fifteen years of coexistence in multiple jurisdictions throughout the world with the apple league not claiming a single instance where someone well again there's if you look at it from the viewpoint of the appellant they prevent or prevailed in multiple foreign oppositions in other countries the cases that the board relied on to deemed irrelevant had to do with paris convention claims because of ownership of  foreign registrations they had nothing to do with foreign oppositions from the appellant's viewpoint they don't understand why after prevailing in now i believe eight jurisdictions in foreign countries i'm sorry i didn't carry on the board does not rely on foreign terminations presumably because foreign language is a different and foreign usage understood word so that would differentiate between the two so you see how in some countries where the language is different they might recognise more readily a difference between two marks but in a country where they both look like queen terms and don't mean trial briefing of the board we didn't have a chance to respond to that argument until now and therefore we believe that they've both been waived the first issue i believe it's issue three in the appellant's brief is that the applicable channels of trade in this case are different now all channels of trade were discussed by the board the argument that the channels of trade are different because of some of the some factual scenario outside of the  but it simply wasn't raised in front of the board and so i think correctly they didn't find opportunity to discuss the issue and make it particularly important and so with those waiver arguments the next issue i want to address is just a standard overview the entire briefing of the applicant in this case was simply a disagreement with the board's findings the actual fine and therefore essentially every single every single point that they raise on appeal is reviews for substantial evidence and we believe that there's plenty of evidence to support each one of the each one of the factors that the board found  correctly i think what the what appellant is arguing here is that they made an improper side by side comparison but if you read their opinion they say they're not supposed to do that and instead they apply a focus on the issues that we talked about sure i think on that particular point i think well let me move to the similar for tennis an established word in the english language it always has a softie i was a little confused when the board said somebody might look at that and read with the heart sure well i think first we have to start with the fact that both of the terms as you understood well i think i put in there i think we put in the brief that for instance there are occasions in the english language and i can't be exhaustive but i can i can say like premature and premature actually if you go and you look at it there's nothing with that works that way like you know that this is a word and established word right well i will tell you that i'm from texas and in texas we have all kinds of pronunciation just for   that this word is a combination of t n and a x then i mean someone could use usually your logic and pronouncing it somebody could see it as differently it's not ten it's not x it's goods they call up their source and they say i would like to next i would like to teen x apoc see what are they talking about who are they talking about and if the follow up question isn't who do you mean t e n a x or x then simply you're a source if they have these two branded products is assuming is assuming a pronunciation is assuming what product they're talking about  well for example in the university of south carolina versus university of southern california case one of the biggest talking points by this court was you know how would we possibly have actual confusion when in a lot of circumstance and there in that case there was actually evidence of least one instance of actual confusion and there the court simply says you know there wasn't enough overlap that we confusion not actually that's right that's right and also the extent that that was on is actually in the market is really unclear from the record if you look at their response in tory fourteen they say was on has no record of advertising expenses in the united states i'm not quite sure how you have no record of advertising expenses but that's what they said you know rather toward fifteen who intend advertise its goods in the united states i mean there's all these conditions which you can say ok well you know where would these things be at the same place in the same time what i suspect and this is just my suspicion is that the suppliers are going to be somewhere outside of the united states but their contacts are going to be inside the united states and so i mean quite frankly it's the likelihood happens when these two marks exist in the choose to register his marks for apply for his mark with a poxy in the commercial sector and obviously the umbrella of commercial use of a poxy in compas is a poxy in the in for commercial use in the graveyard sector so there we have overlapping goods and yes we have customers in the united states and so to the extent that we've gone and of any significant presence with this overlapping mark if it were to be allowed  then there is in fact a likelihood of confusion and i would say maybe not for those who view or maybe not for those who say the marks in concurrence with each other and and in addition have the view that t n always means ten in a x always is pronounced x but the likelihood is certainly there that's what was found by the board and it was correctly found now let me we right now and they have the dupont practice  disagree all of the mountains like a mountain of evidence that goes in one direction and absolutely not a single piece that goes the other way at least according to the board findings so even if i had felt this one time in the last act of the decision that would be enough on appeal of the standard of review for me to change anything right absolutely there would be harmless error and quite frankly i think you probably have to disagree with every single one of the findings of the board in order for there to be actually harmful error just because i mean it's  really don't discuss the factors as in which with congress to they come from i can't remember it's off to believe i believe that china thailand was not necessarily english language no absolutely not in fact i believe most of them are either spanish speaking countries or southeast asian countries or asian countries and so not predominantly english speaking but in addition to that the weight of the factors is different i think means something in chinese and then they use the english word nice on that point we would simply say that even if you if you apply if you apply that to either good faith or that there are some inherent meaning in english so that word those aren't the marks that were applied for and i see that wasn't in the applicants applications somehow and we don't it's not even clear in the record how this happened if they were considering that part that earlier mark somehow it translated or it ended up as t e and i x and that's what they applied for so any argument about a good faith or that there's some established meaning based on that history is simply irrelevant judge moore pointed out in the record and there are several instances of this especially in the responses to the iraq or tories there is no way that they would know about lack of confusion they didn't do any investigation they didn't perform any studies so simply you know ten years ago me declaring that i have no knowledge of lacking fusion it doesn't move the ball anywhere it's irrelevant as the board found and for those reasons the decision to not register the march from thank you