company or booking inc in goodyear this courthouse at the mere addition of an entity designation like company or inc to an unpredictable term does not create a protectable mark that is because those terms indicate only that parties have formed an association or partnership to deal in the relevant goods by prohibiting a st adopter from obtaining a trademark in a phrase like booking a good year ensure that no party can monopolize a generic term the same result can apply to booking dot com the addition of dot com is the line a privilege of a company or inc it conveys only that respondent provides services to be a commercial website on the internet there is no sound reason for assignment to be able to federally registered booking dot com as a trademark when it couldn't register booking it registration would effectively give respondent a monopoly on the word booking that would interfere with competitors ability to use similar domain name that's particularly problematic because of how the internet work only effort to obtain federal trademark registration and nearly every generic dot com business can do the same because domain names are one of a kind and significant portion of the public will always understand a generic dot com server to a specific business even if it is not familiar with the particular business that if you don't do council you mentioned the goodyear case where you do not quote the language from the trademark statute that is at issue here that language says that the primary significance of the mark to the public shall be the test for determining whether the mark has become in there are no good your case had a different test an absolute rule and it seems to me that in trying to decide what congress had in mind it makes more sense to follow the language that congress chose in the statute rather than page eleven a of our next it says the primary significance of the registered mark to the relevant public rather than purchaser motivation shall be the tax for determining whether the matter is registered mark has become the generic name of their service i think it's closer to today than the good your case which was one hundred and thirty years ago so i don't know why i would focus more on the statutory language than that that old old case b and more to the point maybe that if this is a generic term looking dot com that means that it describes a category of goods or services but when you talk about other companies in that category whether it's travelocity priceline or whatever nobody refers to those as as booking dot com booking dot com is not a generic term to describe that generally refer to a class of goods but i think it can also be used as the court's decision and goodyear used it for how a specific entity on how the public would understand as specific terms so for example in goodyear  compare this to a good year and good year you had a generic term but you also had added a charge such as company or a which any company could use now with  booking here and there could only be one domain address dot com so this would seem to be smore analogous to the one thousand eight hundred numbers which are also dot com and then i think the risk of confusion analysis on the back end would also have to account for the fact that each of those is unique and so i respond it would wind up with a very thin trademark protection putting that to one side in the usual case of trademark what additional want is the ability both to exclude others from using the same name and you can pm to exclude others from using names that are confusingly similar because of the functional nature of the inner not respond it already has that st advantage so others can't use booking outcome online and their competitors will want to use those terms in their promotional materials because that will direct customers to respondents website rather than their own to the point here and this is why generic dot com terms garner so much money on the internet a point i think of this case what really matters is the nd type of usage the ability to block out competitors like the booking dot com and hotel booking dot com i think that's exactly the type of anti competitive  expressed in good here that if you allow one company to have a booking inc or booking company it's going to preclude others from calling their good by their name and from marketing themselves as what they are now i think the judge when explained this very well in the court of appeals combination of any janeiro's or any noun in an entity designation is always going to be generic that's simply not true you always have to look at how the two terms are being used so for example respondents look at the cheesecake factory but of course that's not a literal file petitions to cancel our registration and of course the fact that it was generic would allow registration our excuse me cancellation at any point now i think that those same entities could have  based on again the binding off of the federal circuit and that the teacher have which is and was consistent on this point again i think because respondents panic sort of greatly overstates the number of marks that actually have been booking company and booking dot com are essentially equivalent all booking dot com telling you is that there is a website on the internet for booking it tells you it's a type of service that sort of classic generic usage and we think that back follows from a good year now good year as i was saying sort of balance these two competing interests on the one hand we want to make sure that consumers understand that the good they got last time is from a particular brand and so we want strong brand identification and we protect trademarks for that reason on the other hand we want to avoid monopolization of language and i think that's exactly the concern that goodyear had with smoking and we're excited with looking company and looking anger wine company in green company in green ink in the words of goodyear and it's exactly the same concern that we have on the internet here because again i'm using booking dot com and by getting a trademark i'm booking dot com to respond it necessarily must want to be able to block out the booking dot com and hotel booking dot com and similar names i think again because respondents couldn't do that in the brick and mortar world there's no reason might should be allowed to do it on the internet now you noted that you could have sort of a street address as a trademark but i think that's fundamentally different because of course that's not telling you anything at all about the services so the registrant there would still have to work to build up its brand recognition in the same way that a person who uses a inherently distinctive mark like amazon has to do they don't get this sort of up front benefit from using a generic term where everyone now knows that they provided respondents case on line booking services and all of the commented benefits on the internet that go with that such as the fact that other competitors can't use that name and  consumers will go to booking dot com expecting that to be a site for booking for online booking even if there is no particular knowledge on the part of the consumer about  pretty easily reconcilable with the lanham act and i want to go back to the chief justice's st question about the primary significance fast again the primary significance task is sort of cabined necessarily in the statute at least to cancellation of a mark that was al  overturn a specific th circuit case that had applied a different task in the cancellation context now it is true that other courts of applied similar now these and other places but that's because of the preexisting common often for that reason we think goodyear continues to control for the same reason that this other preexisting common law does but even taking these sort of outside of good years i take your question to suggest even without going here you have this very basic trademark policy that has always been true which is that generic terms simply are not  remains true in the brick and mortar world again i think trademark is always trying to make this balance between competition and brand recognition on the one hand and fear of monopolization on the other and i think the fear of novelizations sides here are really speaks very strongly to our position because again respondents you would allow them to monopolize any term i think it's worth noting he just six and eight of respondents briefed their trust actually requires them i think to i'm hedging as to whether the words oranges or oranges or i presume oranges dot com would be generic so on their view oranges remains generic if and only after a survey shows that the public continues to think of that as the spiritual fruit of the same color i think that would be a surprising outcome under trademark law whether in the brick and mortar world or on the internet or i'm sorry chief misra picking up on where you were right now is it your position that the primary significance test to the public is never to be used in determining what should america and what's not or is it that if we don't use the test at least in whole or in part however much you want again a generic term whether something is a generic term which usually means whether it is going to indicate the type of good or service the dictionary definitions are very helpful in this regard to use by other competitors like again hotel booking dot com and issues in these particular circumstances so again because of the functional nature of the internet because everyone understands that a certain that only one and he at a time can hold the domain name booking dot com surveys are going to misrepresent the number of people who definition to looking at it basically one definition says booking a hotel but this service is much broader than that you can book a hotel and you can book leisure you can travel you can book at all the evidence you point to booking car booking hotel booking that a finder of fact could well conclude that booking dot com is in fact related to one entity and not to a has become more descriptive word than a generic phrase other phrases where that combination doesn't add any additional meaning phrase i mean to distinguish cases like the courts of appeals have hypothesised like tennis dot net where there are sort of an interplay between the two words on either side of the period and we don't think that those responding has tried to say that this is sort of the rare case but as i was explaining earlier i think eventually every generic dot com keith is going to have this type of evidence because of people's knowledge of how the internet works and i think  turn to convey only that the company provides online booking services and the term conveys no additional minas that would distinguish respond in services from those of other providers and i guess when i think about that test i pointed to is this idea that it points you to a particular web site so that i think both because it's a functional feature of the internet to which we don't usually give treatment protection and for all of the competition based reasons i was noting earlier i think that can't be enough to get them over the line they've never made an argument against this sort of the key distinction between generic and descriptive terms that are generic term identifies the type of good or service whereas the descriptor a descriptive term tells you something about a feature or characteristic you would like the court to include in an opinion about how to evaluate registration claims for generic dot com mark in other words it's categorical is and is a bridge too far is there is there something else that we should be thinking about in terms of quote without further specification won't be enough to get trademark protection i think that that is essentially the rule that we're asking right here not sure asked i think we would want to be at the at a bare minimum the risk of confusion analysis on the back and to be extremely sensitive to the fact that what's driving the intuition is the uniqueness of the domain name and so that equally applies to respond its competitors just tells me that it's an on line booking agency but consumers have come to understand it something else i think blurring that distinction could have really bad consequences outside of the dot com contract again the oring is or orange is incorporated example where everything is now subject to survey of it so i would want to make clear i guess that that leads to my my next question and that is why are existing doctrinal tools under the lanham act sufficient because we do  always in every case not just this area would take very seriously questions about consumer confusion and it seems to me a lot of your argument on on competition law policy decisions is concerned with consumer confusion the lanham act counts for that and then it seems like you're also concerned about the use of a generic term but fair use doctrine is designed to account for that and we have to respect the judgment congress made in this particular area mr chief justice good morning mr rush responded says there's no threat of monopoly with so name domain names because they're unique and they say they wouldn't in fact be concerned about booking dot com or similar names in their brief so what are the real world practical problems you st see if dot com could obtain trademark so i do think there is a very real risk of monopolization in that sense the other risk i think is that we don't respond is already getting as i mentioned earlier these huge st mover advantage is from the fact that it and only it can control booking on the internet and so it is asking for this privilege that no business would have in the real world of both getting the really exacerbated st mover advantage is using a generic name and then also getting the back trademark protection and i guess i don't see why the internet context should permit that again given that it already gives respondents these huge advantages i also think this is sort of a maybe a lesser level but you know if it's true that booking dot com and presumably every other trademark excuse me every other i get my name can get a trademark then you're going to have this problem where the trademark system is basically becoming a domain name registry system it's just you click it is on the dot and i'm not sure why rather than following sort of bedrock free market principles like generic terms can't get trademark protection no booking company therefore no booking done on the court would go in that direction of essentially just having a clause idea or for internet mean obviously again i think the lanham act preserve that core understanding of goodyear which is no company can obtain a trademark on a generic term even if it shows that the public has come to associate it with it's good that's all respondent has argued for here and it tells you only that respondent operates a commercial web site via the internet where bookings can be made we think it's consistent with the lanham act preservation of this distinction between generic and descriptive terms and with longstanding trademark policy response in school by contrast would require overturning goodyear learning the lanham act line between generic and descriptive marks and permitting the monopolization of generic terms on line and for all of those reasons we would respectfully  thank you mr chief justice and may please the court this case is about how to tell the difference between the descriptive names the lanham act protects and generic ones the act is not for three reasons this court should hold that the answer is the primary significance test that and other words the act protects descriptive names which consumers find useful but it excludes generic ones which consumers think just refer to a genus the lanham act as codified the law by unfair competition which had protected scripted but not generic names and right before congress passed the act this court encounter on adopted the primary significance passed under unfair competition law to distinguish between generic descriptive names for the past seventy years courts have been braced this primary s conspiracy to tell the difference under the lanham act and it was against this universal backdrop that congress later codified the primary significance test in sections one thousand and sixty four over the decision departing from this test in the cancellation context and sixty four that's reflects congress ratification of the primary significance test to define a generic name at all context the government has no other test but the dividing line other than primary significance nd goodyear did thousand one hundred and twenty seven necessarily define it generic names as ones that do not help consumers distinguish among brands because everything else must be registered and the factual question about what consumers think is the antithesis of a per se rule thank you counsel you rely heavily on the primary significance test but that is only in the provision of the statute dealing with cancellation  of marks and of course this is not a cancellation case it's a registration case so why should we assume that the primary significance test carries the weight that you would give it sure so like i just come up in the cancellation context so it was targeted to that th circuit anti monopoly case in terms of the primary significance passed so if you ignore section one thousand and sixty four are there is still no other test than other than one that the side that looks to what consumers think of the market because three provisions cardosa one thousand and sixty four require registration of marks that help consumers distinguish among brands so i think maybe one reason that congress put this in the cancellation section and not in the registration section is because they appreciated the significance of goodyear with respect to registration and marks that i don't think that can be right because again  here is a good here is a common law resume let's just talk about that year good here is a common law that is based on the principle under common law that no mark could be trademarked if competitors could with equal truth hypothetically say that about mark and so goodyear by its terms interchangeably uses the word generic in descriptive marks and that was true because common law didn't care both were off limits and so the court in at the time right after goodyear described goodyear as not only a case about descriptive terms but two cases lawrence manufacturing and p t back with which are cited on page twenty eight of the government's brief but equal truth principle and that's where the domain booking dot com hotel booking dot com ural bookings dot com travel booking dot com if you succeed in trademarking booking dot com then these competitors will be impeded from using that term which is an accurate description of the services and goods that they may provide so i don't something i should take into consideration sure and like you should take into consideration with marks that are descriptive i mean our bottom line position is that dot com mark should be treated the same but there are three reasons why you should worry about what the governments there their sort of you know concerns monopolization st the concerns are just in a brief they don't give you a single not a single example of harm despite the ubiquity of generic word dot com marks and the fact that booking dot com is registered in eighty five other countries including ones that quickly know what your nd and rd reasons are yep so then we get to the rd reason which i think is the legal reason in terms of why it doesn't crowd out the more descriptive a mark is the harder it is for that the government can't be right because three statutory provisions that don't mention primary significance test reputedly abrogate and completely eradicate any notion that you could have a per se rule that would probably consumers think which is why  kuala tacks didn't need some primary significance test it just said you look at it you don't have a common law per se against trademark in collars it's just a factual question about what consumers think do they find the market useful and so we win under three provisions i think the other problem even putting aside those three provisions justice thomas is that there's a whole separate problem the government has that there are two provisions that require courts to look to how consumers would view the mark as a whole and not its component parts and so you can't just think because wine come ryan is generic companies generic wine companies generic and that's the same you know with the word container and the word store you put the two together looking or dot com you put the two together and you have to can still have to look at the way consumers would view that as a whole is that also abrogates per se rule so you don't even need to mention primary significance to know that the government is wrong it just so happens that every court has already said the primary significance test governs the p t o s manual says that it's the test that was applied in this case and if i could turn to something that i think is pretty devastating for the government is there appendix are pending subproject that marks is not based on good here it's based on the primary significance staffed go look at the records and add dot com bed and breakfast dot com bookkeeping dot com limousine dot com newspaper archive dot com the goodyear it's the primary significance that looks at extensive evidentiary record about how consumers would perceive the mark now our appendix is not same it's not based on mistakes weather dot com tickets dot com voting dot com wrestling figures dot com and another bed and breakfast mark the p t o but that expensive evidence it wasn't some lazy p p l officer it was someone looking at the primary significance test and saw wow i'm saying that consumers really see whether dot com is that again these these are these five supreme court cases that are cited on pages thirty seven and thirty eight of our brief and all the old chestnut arjan canal companies are famous trademark cases that are all about the bar on descriptive marks you cannot could not may not trademark rock a lot of color pennsylvania wheat or elgin watch or whatever the typewriter was in the how case you just can't do it because everybody has an equal right to say h the main genetic so in terms of when it flunks the primary significance test in addition i can talk i'll give you some examples but the the sites that i gave you from the government appendix are good examples of how generic work dot com marks flunk it but let's just let's look at other several examples so in our survey majority overwhelming majority found that washing machines dot com were generic and yet an overwhelming majority found that booking dot com referred to the travel web site that's used around the globe another example to sort of a common sense example i can give you is that sometimes people think of generic word dot coms generically i have searched every grocery store dot com looking for toilet paper i have now started looking at every hard wired dot com i am using food delivery dot com for all of my takeout these days those are generic generic usages of a  generic word dot com and i think the examples on the p t s database verses are examples to show you where and let me just correct for the record here about survey evidence certain evidence is never dispositive you always look at any and all relevant evidence about consumer usages and if there is evidence from newspapers consumer surveys dictionaries outrage annals to give you reason to suspect the survey is either unreliable or just you don't have to credit them don't credit dot the generic dot com mark loses as a factual matter because the evidence is otherwise overwhelming that the moc flunks the primary significance test it's just here the government dropped it tried to argue the survey was unreliable but it waive that in the court of appeals and so we think and the district court said i'm not just relying on the sort of i am relying on all the evidence about booking dot com and the lack of p t o as evidence but other cases will turn out differently and ask you another question and then passing off another services as is what you're really concerned about why didn't an unfair competition law afford you adequate check so mainly the reason is because you know we're a business we want the same competitive rights that every other travel agency has to federal registration but specifically dot com marks need sections of one thousand one hundred and twenty five days and the two in particular because it allows in ram a proceeding so if you have a cyber scam they largely arise overseas and the person is beyond the jurisdiction of the u s courts and what the lanham act as if you're if you're a trademark it allows you to sue the domain name and basically shut it down and spoofing type of typo squatting and all these other cyber cyber scams are prevalent in the internet but i do think even if you don't have the internet specific reasons they're not nd class citizens they deserve the same trademark registration rights as any other company to protect against outright counter grows out of a commercial identification it's not supposed to create an awfully power or market power beyond that here the power of the trademark your trademark i exactly growing out of the fact that everybody knows there is one com with one name and if you can do it in the future you don't have to worry about searching the internet for toilet paper from grocery stores dot com was the only thing that they could use but they are going to be lawsuits when it's ip to dot com because that's a kalyan pay ted or at flowers dot com because it's fresh flowers already bookings dot com so we're creating an area of exclusivity that goes well beyond been me the st thing they bring out is that in fact the identification that you talk about flows simply from the fact that login people now know that each internet company has one main really interesting thing about your survey is not the seventy three percent of the people who think that booking dot com is a single company but the thirty three per cent of the people who think good washing machine dot com is a is a is a mark special company which it isn't and they do that because they know about the internet so you're taking an internet power not just points sure it's not really a lot it's st there's the statute that the statute decided the policy decision in our favor if we meet the definition of a trademark we get registered nd as a policy matter at the touch that brief is just wrong if you look that methodology and makes fun of it and says if you'd ok take out go ahead remove every single person who originally thought washington meant washing machines dot com was a was a trademark and you still get a sixty four percent which is huge brand recognition booking dot com rd the government's appendix just destroys this argument they reject these marks then and they're out they don't get registered st reality destroys their argument where the lawsuits or the complaint usa now dot com for rent dot com it's endless the notion that anyone is being crowded out is just so it would be one thing if they could explain someone complaining but at the ubiquity of the trout i marks and the ticket marks and the variations but trademark protection that's that's fine and that's why a booking we don't object to a booking booking is not a problem and i think it's for the two reasons if i could finish it is  liability and also mccarthy has a huge huge thing on this that the more descriptive the names these lawsuits just don't walk and that's true with the that just dot com marks all timers as a know what your client would not object to the registration of any trademark that simply made a slight variation in booking dot com that would be fine all of those companies could register their trademarks they are because there's a million booking registrations already answer the question would you guess that they'd object to that they don't and have not and would not now if there was fraud and somebody's ripping off the good well based on booking dot com i'm sure they'd want to sue but it would be very hard to bring that lawsuit and there you are my concern with your position is exactly what i think just as prior just suggested you are seeking a degree of  monopoly power that nobody could have had prior to the internet age i take it a company could not have registered booking company because of the internet you have booking dot com which gives you an advantage over other companies that are in that business and now you want to get even more advantage by getting trademark protection for that so if i could turn to the company situation it's just not true the way company which is registered to celebrating its th year anniversary it's called the way company there's also the wake shop and the wake store mart and so it's not like a company has crowded out with companies there are many places that sell widgets just fine it's not like any generic or dot com has crowded out weather dot com exist with accu weather dot com la dot com there are so many law dot com variations that are registered and not soon each other and the ones complaining that you just type in law dot com  the database and you'll see it there's just a lot of registered names and that's fine in terms of saying well that's just you know what the p t o does but the fact that that they don't have any compared to competitive harm seems to me telling that you wouldn't want to you would want to write opinion destroying the the billions of dollars of goodwill that's been built up and not just dot com marks but in company marks and if you extend good you pass corporate designation it's just the government of it said company named an association or partnership dot com it's not association of a partnership it's a store to buy stuff thank you altschul justice sotomayor miss a i am troubled as justice pryor and justice alito are about the monopoly situation but i'm also troubled by what's the rule that you want the p t o to follow they can trademark under a lot of generic names are they required now to run their own consumer perception surveys before they determine that particular name is generic how are you ok with the existing prove that i think justice kagan read before which is that there is no per se rule  every single common name of every business and then a expenses legal fight on whether it's become generic or not you know i one hundred percent agree with justice consistent it shows the p t o in and day out rolling up its sleeves applying the primary significance test no you do not have to have a survey the p t o looks at hundreds of evidence and says look this is just consumers would see this as referring to any place on the internet that sells these goods you're not getting registered and that's the end of the story and that's why a lot of those marks end up on the rejected list now on our list when they read in weather dot com that different evidence and said wow weather dot com has a big consumer fan base and has as the primary significance of being a brand with how to register that and that's good for consumers you want consumers to know when they go to weather dot com they're getting weather dot com and not accu weather dot com and same way with the dating dot com and wrestling figures dot com so i hear you on that you're worried but the p t o is up to the task this is what they've been doing and we've had their dot com marks have been registered from the going to have is every district court really weighing all of this evidence that the p t o looked at and frankly i'm on the margin with respect to your mark because i would have looked at car booking and hotel booking and all of those other bookings and said this really looking standing alone is generic even with dot com now you point to the chapter on study but you seem usually the district route when you think you have good evidence significance test is really asking well is it consumer understand something as referring to a category of products or interested as referring to a particular product or service and these names by definition are unique and so just like the word company or wake dot com they can be generic for our rig companies and with producers so it's not just you have to say the word company no one thinks the  company referring to wakes it would be or you know it would be generic for a type of company so it's not just the category of goods it's the category of the sellers so if you think of booking dot com is no different than the container store you could say oh that is so unfair that a container store the container store because it can only be run with the container store it's the same way with dot com now you're right about the internet address but that every dot com mark even your hotel heiress paris hotel booking because you would always win under the gun or the sphere of it must have it could never be generic and so two courts have just been dealing with this i think that for two decades  same reason that all timers associations and the paper stores in the paper market aren't all suing each other because they lose so these suits don't happen but why people want to trademark registration to fold cash outright counterfeiting because and that's what the trademark laws are about so you know that but secondly i think that they want it for the one thousand one hundred and twenty five it's a specific problem with spoofing and cyber and cyber scams and that is definitely what the internet i make is free source saying is that they knew this and that's what broken cares about booking does not like internet stamps and cyber scams stealing business and ruining its reputation because you know someone infects your internet advantage are minimized or meeting by the fact marks like bilking dot com are relatively weak because you're putting together two generic terms and consumers may well have your company in mind when they see that you've got evidence and we can argue about how good that is but there may be no consumer confusion and that may also be true of the booking a hotel booking consumers may or may not putting on the facts have particular companies in mind and the relative weakness of the mark is your answer together with the fair use doctrine to the government's monopoly concerns is that a fair summary much better and i sat down on that piece sure so and i mean just help you with the reason why they're so weak to begin with then why mccarthy has this whole chapter of every lawsuit where you know some rewarded marks can't sue for others let's take weather dot com and accu weather dot com so it turns out that consumers when you have very descriptive marks like both of those that are registered consumers become very condition to focus on the difference so they know accu is different if you look at booking an ebook ng consumers want to focus on how there's the site there's the e one i want to go to the e one and so it is very very hard to show a likelihood of confusion because the more similar the market is it becomes extremely impossible are fakes competing and likely to be able to prove that and that is not specific to the dot com context it's the same problem that every mark shop  source placed exchange in korean collectives you know we have like there's a one million dogs marks a one million coffee marks a one million paper marcum paper marks they all have different store shop place very similarly worded that never sue each other priors point i think seventy four percent of consumers recognized looking dot com is your client but thirty three percent think that anything dot com isn't it is a real store so only about as i understand it about it's just based on a like a very kind of lack of understanding of survey methodology so you're not out the participants and so when you're mad at the participants you say lisa black dumb or a stop washington die wash it washing machine dot com was that was it was a brand so we're going to talk her out of the survey so when you look at the people who correctly saw washing machine dot com as generic sixty four percent still welcome dot com and so i oh yeah i'm sorry so what i would say is that you know the survey if the survey instructs the consumers have misread the participants ahead of time that flies comment office supply dot com is generic and if they didn't what you think about our president and goodyear or exactly could be principled goodyear still has some value outside the dot com context in the classic company context in which that case arose because the dot coms are inherently unique or is your position broadly to goodyear just has no value anymore the fab back to certainly action extended to dot com because dot com is closer to the word store and shop and shop but if you took goodyear at its word you're killing nonprofits because of the association problem good here are the terms of the pen and say it means association and that's how nonprofits identify themselves so we  our coalition or society and so you have the amputee coalition the christian coalition you have there are so many of these association on marks that i think goodyear would destroy an addition to co or container store and i i just want to say one thing about the government's making fun of the cheesecake factory crab house it's not a literal house where crabs live they're actually dead meat them and the government the crab house was generic so if you go down this what you can do is make clear in your opinion that a district court if there is evidence from all kinds of sources that the p t o uses and all those examples i go to the beginning the site all kinds of examples proving that survey i hate to trash our survey a lot of people thought our survey was great it's just the classic tough one survey but also that we took it a rougher house waffle house there was a fight about the survey but the p t o said it was generic and was came out with a survey and they think trademarked it so i i don't know why that dot com is having some sort of you know it's scary and therefore it should be treated differently because of this fear that all dot com marks have an unfair advantage bec common law and unless it was expressly preserved that's the opposite of the way that we usually think about statutory change i think just a couple of weeks ago in rome agnes court nine justices look to the common law to determine what the lanham act preserves and i think the same should be true here that a descriptive term would get protection under unfair competition law so that's entirely consistent with the view here is that generic terms are never susceptible to trademark even with primary care even when showing a secondary meaning has been made again we think that the primary significance had to coexist with prior law which includes a good year and i think i'm responding point to this idea that the p t o has been eyeing the primary significance test that's true with the good years sort of guard well it understands that forth about washington washing machine versus building up but i think what's really instructive here is washing machine dot com versus supermarket thirty three percent of respondents in respondents survey thought that washing machine was a brand name  respondents well i think that's clearly not correct we know that because of the same reason that we know that booking companies shouldn't be allowed to be trademarked we just know that when you have a trademark buy is not supposed to take turns off the table that everyone needs to describe their goods i think you know respondents focus on certain examples like tickets dot com and container store i think again responding is misunderstanding that you have to always look at how what those are registered for tickets are convert example for ticket management services not for tickets generally to their massively overstating what's going on here i think again there might be hard questions at the margins on some of these whether it's something like container or tickets being used in a generic sense but that's not reflective of the dot com or the company that's at that st root level finally i think if they're not going to see anybody not common hotel booking dot com it's really unclear what they want out of this ripping off respond referred to is covered by unfair competition type of squatting likewise is covered by unfair