is whether the t p a be committed an error in affirming the patent trademark vavasor's final refusal of two applications one of those whole sums which was refused under section two e one board relied upon the board a lot of on a dictionary definition of whole from a number of third party registrations included the word wholesome and some other internet evidence there is evidence that d and so there's no dictionary definition of whole sums there's no third party use of whole foods it's just frankly not a word and so once the offer was put in that evidence which was certain to do  went through a number of linguistic cassy did a morphological test a syntactic test and a semantic test and concluded that this is not an english word and in fact what the applicant here had done is created a based on the record that was before the board that the expert you know tipped the scale the other way and created some thumb form of doubt as to whether this word was or was or wasn't descriptive and in any differently enough substantial evidence to support the decision well i mean that they have to get an expert to come in and say that well i mean certainly the board obviously substituting their own judgment for that of the expert that appeared on behalf board get to say that customers would perceive wholesomeness to mean the same thing as wholesome well i mean i hated that it was a couple for the office i realize they have limited resources but normally i suppose you would either have an expert or you would do a survey to try to determine that i don't believe that and what was the experts testimony and what was his expertise didn't have to do with what i'm normal average customer who would understand the term to me well i don't y the commercial impression of a descriptive term and that's the whole part of marketing and that's what the ploy is intended for you know pet essential for me it's the same thing essential oils and i realize obviously that the office isn't bound arena and in the light weight case and those cases are really quite quite different than this particular case why are they different well with respect to aspirin and lightweights both of them are actually in the dictionary or they are actual english words or as wholesome this is not there were actually trademark registrations for us purina for lightweights there had been a priority stray ssion in which light weights have been disclaimed which is the court  knows is that admission of the script business and so those two particular cases which the government relies on quite quite heavily in its briefings are really quite quite different here  and can be distinguished readily again the real the real thing here is that the other differences of course is a sexpert opinion which case with sperry with respect or i'm sorry with respect to the least likely case and if you look to the actual expert opinion again it thank you your honor and it's paragraph twenty where he says the noun wholesomeness is an invented word that has not novel morphological grammatical and semantic value is made clear by the virtue of the fact that no dictionaries contain the noun wholesome or balsams more importantly whole so it cannot be found in any dictionary at all and consequently cannot be said to have any accepted meanings for english and this is the most important part here for english language adjective wholesome to wholesome this would require a leap of metaphor metaphorical grammatical understanding to coin a rather awkward but illustrated term to process a new lexical item that in the first glance may appear to be an adjective flouting the rules we all used to understand the english language and that's the exact sort of black letter law that we talk about when the office looks at something as to whether it's merely descriptive or not it's that mental leap and so this is what this expert has said for a perspective of people who understand english language which obviously would certainly encompass those don't in the english language use this word as a noun therefore is a clever way of naming something from somebody who had the cleverness to brand its product that way english usage so something funny is going on here whatever that funny thing is it's going on her doubts doesn't take away the underlying prescriptive meaning that there's nothing that the extra point to that says because it's now a noun it somehow i in less numbers of perfectly legitimate trademarks are partially descriptive has to be the case lots and lots and lots of nations are suggesting some product because there is no other meaning there's no evidence in the record of any other meaning something important something claimed and new well except that then says that the ass affectively camouflage what is  dr concede is otherwise a nearly descriptive term right so if you had a situation where the change in the words was such that the nearly descriptive term wasn't immediately obvious as it is in this case that would be a different case but here the additional letter asks simply cannot camouflage the admittedly descriptive term and they have put forth no evidence that there is a nother meaning that consumers are going to take away and i do believe that the court's decision and there is quite instruct ve point because in bangor this court looked at the substantial similarity of the two words and concluded that when you look at the the on appearance sound and meaning of the two terms that's alone can be substantial evidence of the merely descriptive nature so in that case in that case this court found that actor enough was sufficiently similar to aspirin and that that sufficient similarity was the stench of evidence the same is true here the only descriptive task says merely an immediate and that is in this instance based on the record not the case and the expert clearly indicates that that that that's not how consumers are going to interesting because he talks about how people come up with in fact he came up with some things that are expert didn't talk about he talked about the bio association of changing an adjective to announce something that tickles your brain  again what i would suggest to the court is the touchstone of the difference between a suggestive mark and a descriptive mark he goes on to say you know it's jumping from one meaning to another it lends an adjective to  this which of course again is sort of the touchstone of a trademark emanating a source a thing this particular product goes on to say it's a quality turned into a saying and so again i would  used in it by anyone or anything and so for these reasons in the reasons that we've set forth in the record and in our briefing midwestern tattooed respectfully requests that the court reversed the board's affirmation