member of the bar and is in good standing with the highest court of virginia or georgia i have known i have knowledge of his credentials i'm satisfied he possesses the necessary qualifications beyond that i would just like to add that god has been my clerk for the last twenty months he is king clerk in the chambers so fine intended and he's done a wonderful job it's been a great joy to have him and to watch him grow  his legal skills his writing his thinking and i know that he has a bright future ahead of him and he is going to be a wonderful addition to our bar and i very much hope that my colleagues will agree and allow his admission and if there were a way that we could have put some sort of jacket on luke and claims that he was a necessary element to this process he would have been here also no one else understand that but when i read it with having seen some both create and overall and distinctive appearance well certainly the red and white sea is quite distinctive but the evaluation of the likelihood of confusion is based this thing these markets even when you go to a supermarket or a what about the evidence i think there's a couple of board findings that there are candies out there that are liquor infused and  are some of them are for companies that actually make candy feel with other of the rd parties lecours and you also have liquid companies which i think are the majority of the examples i think there are five in total i could be problem for you with your saying that but you didn't introduce evidence that and the board did rely on evidence of the same company making both the candy and the core and that is a fact finding that we have to review for substantial evidence i don't see the evidence on the other side that i could say renders the boards evidence nonexistent or insubstantial or anything so that's my problem my problem is that if i if this were a case of st impression which i understand it's to nova review on the likelihood of confusion but it's not the novo review on the underlying fact findings it's substantial evidence if i got to review it dunno i would agree with you these are not related goods but that's not a question it's a substantial evidence question so how do you overcome that what evidence do you have in this record or why should we just entirely disregard the board's evidence that some companies sell them together dot com in which a seattle user asked does anybody know where i can buy lead were filled chocolates downtown and received more than a dozen responses some specifically because obviously there are they're not readily available everywhere you go in if you were going to a store and bring them of the show right away or to any supermarket why would somebody need to ask and also lead just let me just tell you i agree with you i grew what you just said and your interpretation helping the problem is again substantial evidence what i can say is the board's interpretation to the contrary was totally unreasonable if i got to make the decision i would actually demonstrate what consumers understand you know does the one person asking a question demonstrate what consumers understand or do the comments that followed in demonstrate what consumers understand and i can't say the board's decision that the comments are what demonstrates what consumers understand is unreasonable or not entitle to any weight and that's the problem that you have i'm just that i believe there's really not an answer to what i'm telling you i'm not really in the form of a question i'm just saying this is what is bothering me about your case and why it's difficult for me personally to get to a reversal of thinking john i understand your concern and i understand your question what i can say about that is that when we saw the evidence we thought that in a way that evidence supported our position when we obviously discuss the evidence and in a way you know that we must point out at some point that what we did is criticize the evidence but we were trying who was not to criticize the evidence was to use it in our favor in the sense that well if this is what you are providing then that serves to prove also what i take it as evidence and i take it as i see it fail to face value but to me that some stylish men's made me sell beer and maybe even brew their own beer but that does not mean that the dreamers cannot co exist even though one is for beer and one is for restaurant services so i think so we the board properly found these marks are fairly similar i mean i don't disagree with you on the similarity of the marks and i think the board took into account the style i see above and i didn't say they're exactly the same half so i don't have a problem  problem on the belated goods is really i don't know i don't think of candy and liquor together personally and i know that's not the standard it's whether substantial evidence but in this products does that really sufficient under the law should that be deemed sufficient to make them related goods weird nowadays you do have these giant conglomerate websites that sell absolutely everything under the sun you know so is should that as a legal matter be sufficient you know when just to go to a web and say well i'm located a site that happens to sell both of these things so your honor i don't think that the sale on a website are flavored or filled with the courier on their website under the same marks of for relatedness purposes what we're looking at is is there evidence that these goods actually are offered under the same mark to consumers not where they're liquors on the one hand and that same brand of liquor is there anybody at all to the fact that this registration claim to liquor rum rum creams excluding candy and ice cream products i've never seen one of these excluding things i don't know how often that happens what is the legal significance of the fact that this registers attempt at registration so out to express league school mood the very thing that you said is the problem for them they say they did try to put in say we are not ever going to claim our mark on those products what if anything does how does that affect this analysis if at all it doesn't affect the analysis because you have an unrestricted registration and so the normal rule is that where you have a registration that covers candy it covers all types of candy and there's no dispute here that there is a type of candy that is filtered flavored cooker and that's so you mean the actual registration which covers candy yes i got that that the applicant has said my mark will never be use candy you don't think that that affects this likelihood of computer analysis at all it does not here if you had a restricted registration that said perhaps that they'll never make candy that labored or filled with liquor that is something the board would have to take into account and then you have perhaps more of a situation like was present in the mtu software case where you had two companies offering software under the same mark but it would i d s themselves you know because we have to look at what's the scope of the registration for what the words in the registration the application would cover that full scope and where there's no restriction you have to give it full effect for everything where there is a restriction you can take that into account in the end to software case that's what the court held that there was different a couple of what i will call specialty retailers like godiva also that you know i mean hershey's isn't selling booze right you know like specialty retailers i don't i don't know what i mean by that i guess i i just mean not everyone who is selling chocolates is also selling alcohol filled chocolate sears a few people who are selling candies which you found and there really is very high end like godiva kind of sellers that are appealing to a slightly different market than the average chocolate bar buyer i think maybe i'm mistaken but in any event my question to you is how does an applicant who is seeking to show that just because you could go on the internet and find a couple of high end individual retailers that do happen to sell both that's not indicative of consumer understanding of the market as a whole how how do they prove the negative to a trademark examiner who found one or two websites where both things are sold under the same brand not the channel trade argument but do you understand what i'm saying yeah how could you go about proving that i'm making a case that that's not the case these are special to people like you know if they introduce evidence that no here are one hundred different alcohol manufacturers none of whom sell candy so yes you found summary that did but here's evidence on the web of one hundred different label brands for alcohol none of whom sell candy hundred beats three like is that a way they could do it how i'm wondering how could they build a case i don't who contravene this kind of fact finding sometimes it might not be possible and sometimes it can be possible but they've certainly ways that they can try and reply and challenge the showing that they examine attorney made an example i guess would be in the course case now i'm hesitating because this isn't a numbers game the fact that it might be an issue market or only get there's only a limited number of consumers that might have this understanding doesn't mean that there's not going to be confusion likely when i don't know but that i don't think i agree with you on that right because we're trying to look at consumer confusion in the relevant market right so if their brand is more what what the evidence shows it that consumer understanding and expectations in the marketplace can soon were and what marketplace here it's really it's not restricted to anything beyond the adult population because if you accept that to buy alcohol you have to be of a certain legal aid money in the state where you are that's that's the consumer group that would be the overlap here like i have but and i know none of this is relevant to my decision making in this case but i have bought godiva chocolates hundreds of times for people's gifts until you told me today that they also sell some liquor filled thing i never would've guessed i'm not interested in purchasing it but i never would have guessed that they did i didn't go looking for it so that's what i'm worried about is a trademark examiner identifying via the capacity of our internet certain extraneous examples that really don't represent what the marketplace full of consumers would understand and using them and what is the mechanism by which an applicant here in the applicant came back and said hold on if you have a situation where it's restaurant services and beer and the courts case law it held that you had done something more than just the fact that restaurants serve food to establish relatedness in that instance  the corps applicant came back and said look here's the restaurant industry as a whole and though the examples of where restaurants also brewed there are sell their own beer is a tiny tiny fraction of percentage of all restaurants that was compelling to over cuddly example international number don't matter i said if they were able to show one hundred different liquor companies that don't make candy and you kind of rejected that idea so then wouldn't it don't they don't can't the numbers possibly possibly matter maybe not never in case but can't they i mean that's kind of what you just described of course well i think it's a little bit different because it was industry data not just i have ten examples you twenty examples right we don't want to get into a numbers game because we don't want examine attorneys cluttering the record with hundreds of examples of things it's not necessary to establish the premise and the principle maybe it is a better theory though once somebody else puts on a sufficient amount of evidence that what the examiner found in his or her one or two examples are not indicative of the marketplace that's exactly correct but here we have a completely unreported showing you know another thing that applicants can we surveys for example the office can't but applicants can and we have to consider that evidence so surveys ok and what another way to do it like in this case so i have absolutely no idea since i don't usually consumer a hard up call and i don't like chocolate so i'm probably the least knowledgeable human being on any of this that being said what if they were able to show for example that nobody ever puts rum in candies they always use vodka or tequila or gin and that all of that we're because their application is limited to liqueurs rum and rum creams so suppose there were examples out there of alcohol being used in candy but they could they make an argument not the type of alcohol that we're claiming for registration there's nothing i mean is that the kind of argument they could also use to rebut examiners finding a relatedness they could make they could make the argument i'm not sure if it would be compelling depending on the facts in the case because in all these cases you always have this kind of weighing where you have really high degree of similarity between the marks you need a lesser degree of showing of relatedness and the converse is true if the goods are identical you need a lesser degree of showing of the marks and so when you're looking at the whole likelihood of confusion question it it did these things get weighed and evaluated in that context i think it is possible but i don't know if that would change the the outcome the other thing i would add and preparing for ar after whiskey and the applicants mark was two feathers with some feathers designed for pickled brandied spiced and preserved fruit and the court found that the relationship between some of the products there the whisky and the brandied fruit could be such the average purchaser would be somebody goes to the store on the purchase of wine or whiskey or something i think two to even example for example you could have a black label which are actually say it's a pretty famous