southern states marketing a toy manufacturer out of marietta georgia southern states desired desires to register its trademark for toy goods a line of fabric purses and bags which bear a black line art design which a child was color in with permanent markers which come with each set the trademark board unfortunately sustained the opposition and we appealed because the trademark board opinion disregarded applicable law and is based on erroneous facts was your basic problem  the names too much so that's correct yes your honor but as explained in our brief it's a highly suggestive mark and that's why i think it appealed to both parties color me it is inherently derived from the use its customers color in the products and it is explained in detail in our briefs color me has been used well and the basic argument is it's not an arbitrary fanciful name it's a highly suggestive name and we submitted in a record of the luminous number of third party registrations and applications where other parties have filed to explained in my brief this lady who happen to be a good respectable grandmother and a very nice lady she and her granddaughter called her on the phone and asked for a color me mine  bag for christmas this lady had never seen the bag she had never been able to assess the relatedness and she searched for the bag in the marketplace at wal mart different places was unable to find it and so she started a search on the internet she did a google search and c n n enterprises ceramic studios came up she said she doubted there was any relationship however nonetheless because she was desperate to find the back she nonetheless called this pottery studio you're o brief says when i a individual wonders about a possible relationship that's not sufficient evidence of an instance of actual confusion so therefore seaman enterprise is not isn't for making the well iran her and that goes back to she maybe at most wondered if there was a possible relationship and the last item i agree says well if the most you can point out is one person possibly wondering about a relationship the only reason she called it that was the only color me mine name out there that she could actually find it was a call made out of desperation and i believe it has been the problem is that nobody else is using  pronoun at the end of the name and that is true however when faced with the pronoun mine or me or your it's a highly suggestive term in itself that must be considered a weak term  in the craft industry in general he's had twenty other seven years of experience and craft in tory's and it's just a highly suggestive word signifying personalization services and southern state good will never be sold through the same stores or venue that is because seaman enterprises services arthur sold out of its own pottery studios that's clear from its registration and it's clear from the now there is that if that is going to now be the standard that defies the liberal intent of the trademark act and it didn't the law would have to hold that every business out there trades in the same channel because they all businesses sell on the internet or have websites these businesses involved coloring books painting various objects or goes on really different i mean you can say one's a product and one's a not cite one case to explain its holding there is no case where it said well in this services versus goods case well they are sufficiently related there's no cases cited and your honor i would submit in every services versus and your honor please refer back to their registration itself the register ration says it has a mark for eight services where it supplies of goods and services for a customer to use and if restaurant versus sued well restaurant supply food that's exactly what restaurants do and nonetheless in the line of restaurant versus food cases the court held that there was not a sufficient relationship in that case the court said cooking classes are not the same type of product as kitchen textiles one of the service and the other is a tangible good it would be more accurate to say that cooking classes are in the same category as language  pottery classes so if here we had a service where there were coloring bags perhaps it would be more related or if even if there was more overlap  services vs foods cases in those cases the commonality is that the restaurant sold one of the items on the menu was a food that was offered by the other party  perhaps if the only food sold by the restaurant was a zac food sold by the opposing party then perhaps the courts might have changed their opinion but as i perhaps not but i would suggest there would have to be substantial overlap and for instance if southern states goods were ceramics then perhaps it's our position in the matter that the g t a v clearly made the proper decision of finding likelihood of confusion in sustaining the opposition and that its factual determinations are well supported by facts in the record  as the courts noted in this case the marks are identical the the only two companies that are ever shown to have used these to mark this this market the two parts here calling me mine's been in the business for twenty years we also believe that the goods and services are more closely related so there are states marketing itself craft active the products of a particular type color me mine sells crack that craft activity services and craft activity products they're not identical but they're both closely related they're both as the court is noted sort of a paint your own or make your own type of a product the mediums are a little different that they're using the what's what's applied to it paints four or or a little bit different but we think that cuts a little to find the the evidence shows that companies such as southern states marketing that are in the craft activity field sell of a variety of craft activity products it also shows that companies that are in the business of selling craft activity products solidarity of different craft activity products we think it cuts too fine to try to to try to distinguish between specific mediums that are used or the manner in activities as a family as individuals as groups it's it's an activity center if you will they can purchase various types of figurines anything from tinkerbell to plates and mugs and they can cla the confusion well we don't simply only do activities at the studio their records clear is that we also provide takeout kits and the second sponsor these activities at scout organizations church organizations and various other location locales where these parties and activities are engaged in so i think it's it's not simply the the particular it's its multiple locations and it's not simply services it's products as well and these products and services are uniquely up a teacher own nature which is the same basic nature as their products you were just selling h strength of the mark we believe that the evidence is that the the mark is strong we think there's a fundamental misconception that that appears in the palace brief when they seem to marks and other factors here such as the demographics of the users and the the commercial strength of the market mean i think what your honour's referring to is a conceptual strength of the mark if our view on that is that the that there are terms in our market that are suggestive of the goods and services that are offered but it's three separate terms that literally don't make a lot of sense  stores they have substantial sales that there's a very highly popular web site and i think most useful of this evidence is only unsolicited published today that they've gotten in magazines newspapers the new york times of people magazine there it's been their studios have been a venue for t v shows movies there's a lot of a lot of unsolicited value of paid advertising but this type of media is i think sometimes called earned media where we're the people will come to you to use your studios people come to you for articles and that has a higher value in terms of fame than simply advertising because advertising is is self serving it's taken by the by the party using the mark to try to promote it whereas earned media is not something that that the the person using the market solicited and it therefore has a higher degree of credibility so i think that the all of that activity it tends to show the commercial strength of the market is quite substantial several points to that one that the that the third party evidence of third party use as i've indicated is unsubstantiated the cases indicate that when you talk about third party uses the real underlying question is has as a consequence of such third party used under the law undercut the unique trait identity under the mark and we don't have any evidence of that all we have is listings here but incurring example and begin with is that the none of the uses are for the same market and what usage that is not clear from the record we have in the case additionally i think it's a useful point to note that these are the cases that talk about third party uses and affecting the strength of the market are typically the kind of cases where the marks are not identical and the marks are similar and the pertinence of the third party uses is to show the relative significance of the differentiating term that customers have come to differentiate between various uses of a derivative market because of all of these third party uses where can we were in there and have the four grand the application form that it's at the question i mean there's you you registered as a service your industry says you provide just over do it yourself ceramic studio right they're selling good well we have in addition to the registration we have evidence that the court referred to the board referred to of underlying gives us some argument that's made that we're not allowed to rely upon anything other than what's in our registration we think that's an incorrect arguments yes why can't the to march who is the coexist use a service and there's a good well first of all we do so good as well and we indicated that in the in the notice of opposition that we use market solution for a variety of that services there needn't even be a registration for an opposition so i think that's that's a point but if they were going to sell craft activity products that were not of a peach your own nature to answer your question your honor i think that would be something that would move them further downstream from us and might be of a special basis to say that the two can put this but as a as a color me mine it's a franchise business they are their their uniqueness their trade identity is what what they license as in any most franchises that is your highest value is your trademark it's not necessarily the burgers that you sell it's those golden arches that you can use and here they're there  trademark is their is their bread and butter and it's something that they've nurtured for twenty years and they when someone starts to use it in a closely related type of activity product it's a problem and i think it's going to it will certainly damage relative significance of the common in different terms and that's where these third party cases is generally applied they've also referenced disclaimers as well and again the disclaimer cases have to do with situations where the marks are similar but not identical and the disclaimer has to go with trying to balance as to whether or not the distinct parts of the mark are more significant than the disclaims portions of mark so that the two marks are distinguishable neither of those those those whole arguments are really have application in relation to situations where we have identical marks customer bases are very similar if not identical color me mine is women eighteen to fifty four children under twelve southern states women twenty five and up and children five to eleven so again the in the demographics are very similar in the marts right down to cold is this commercial strength of the morning that exists as well  made and i think it's common law is that we're the that the the sales of of the challenger trade are not limited by some some statements of the registration they can the open ended into all the normal channels of trade in the which such types of goods or services are offered and to sell products for it painting your own ceramics those channels of trade certainly include trade trade  stores arts and crafts stores such as where they sell their products a seymour's michael's there those are stores were crap that some of the products are sold and we sell craft activity products so it certainly has the potential for overlap if it doesn't overlap at this point in time the sales conditions t t n be again had record evidence to support that the customers are not sophisticated the products and services are inexpensive to moderate price and in that the customers for southern states promise that big box stores are particularly likely to be more impulse buyers southern states focuses on the customers force for color me mine studio services and so they're not likely to be confused but doesn't talk about how the customers for their own products are or more impulse buyers and i think it can be either way it doesn't have to be both parties either way being susceptible to impulse  adoption by southern states marketing two points on that one procedurally it's untimely and anything that's raised in applying reply brief is not to is not proper for consideration that the court has indicated that in a number of cases such the bottom line here as that c n n enterprises has chosen a highly suggestive mark it is plainly derived from its business its customers will color items that will belong to them it is an inherently weaker mark according to the law period they have not been able to overcome the weakness of the suggestiveness of their name by any means they suggest that well commercially we have overcome that however they cannot establish that their mark is famous because they can establish that their mark is famous in the trademark trial appeal board recognize their market cannot be considered famous it cannot be considered a strong mark rather it's an inherently weaker  with regard to channels of trade again c m m enterprises services and southern states products will never be sold in the same store where the same then once is never because their services actually and this is recognised actually by the trademark trial and appeal board but their services emanate from their studios first look to their registration the registration says we provide a studio for the painting of pottery somewhere else but there's no evidence they've ever done that that they've ever sold it in a different place that doesn't mean this question your honor but there there is no evidence they would ever sell in a place like southern states may be presumed to sell their products anywhere where their items are sold there's just no no evidence of that but your honor your honors the law says that you should look to the  registration for what the registration is what they register for they register register for a studio where customers will paint pottery studios defined by merriam webster's is a place where a painter or sculptor or i'd perhaps have more trouble you lose well there's a certain it's more overlap and i would say that would be significant overlap but that's certainly not what they do have ever done and there's no indication that they would ever do  your honor i still haven't heard from c n n in a process one case for relatedness that supports their position that their services are related to southern states good or rather i've pointed