that should not be dispositive in the case where the goods and services are unrelated as orders for all this time several in fact many of it's own opinions it's all binary it's either related or it is unrelated or is there some kind of continuum perhaps where we try to make an assessment of you know the relative relatedness that in my experience your honor and the research that we have done is fairly binary we cited at least seven opinions of the board not everything and i mean there's a difference between say shoes in microprocessors right and then things to perhaps enhance one's appearance like clothing and duty product you see how the latter is a little bit more related than the former which is shoes and microprocessors certainly are and that's part of the issue in this case is that the us p t o s evidence was simply that these goods are on the same side for stuff we didn't get any of that analysis until the court's opinion and even their analysis what it's about ten words which says that the goods that make you look good are related as long as you can find them on the website and that's not sufficient particularly in the face of the board's own precedent that these particular goods clothing on the one hand and the supplies on the other are not per se related outside of the context of fame or desire  t is that in these ex parte cases where there is no fame or a desire mark involved these particular specific goods are not related i thought part of your argument was that ok if it's a famous mark then it's ok to say that beauty products and clothing are related but if the mark is not a famous mark then you can't say that beauty products including our are related was that make a ruling that we can only in the p t o can only consider beauty products and clothing to be related goods when the market is a famous mark and go on so as i mentioned we cited only seven different board opinions ruling that clothing on the one hand and b supplies on the other are not per se related good one of those cases was non presidential that was in re that i missed while and we spent a little more time discussing that case because the facts in that case are so similar to the current proceeding however there were at least six other  you know presidential and at the board level saying that these kids are not are not related so is it is there any daylight between it not per se related and this case that is there to the board really say that they are per se related as opposed to sampling what it found on the web and applying a little bit of common sense and common  saying oh here they're kind of related enough or is there really nothing that the board did that would allow it to draw this conclusion or fact finding i guess on the related component or maybe it's the legal significance once you get past the facts but is there nothing that the board did that could support its determination unless it were relying on a person a relation i don't believe so your honor i mean the  board had said there is a fair bit of indication that for small store operations it is pretty clear that it's just not very uncommon for those shops to sell a variety of look good products why should that be enough this case but there's a federal circuit opinion in re hyper shops ohio which says that goods in the service is selling those goods are related for purposes of life if you so those cases are directly applicant was coming in for most from microprocessors so that would be an example where the marks are identical but relatedness of the goods would very clearly be completely it can be pivotable pivotal in terms of trying to decide whether to grant the true oh i don't question that the related ness question is as relevant and and kill to some extent although keeping in mind that these are identical marks and because they are identical circle slightly so it's the name of the store right in the category of stores that sell shoes and the category of stores that sell microprocessor stuff i think i think the outcome is the same but again it's going to depend on the evidence and so if you have evidence and and i want to be clear here that the evidence about the stores is evidence about stores that sell a relatively limited subset of goods right clothing and beauty type products that these are made of hardware stores are department stores  but leaving that site and that that might be a different case i do think that the outcome is probably the same for stores that are limited to michael process there and stores that are moment of issues assuming the evidence doesn't show that those are typically goods that are sold in the same stores  and just to i understand i just want to be clear that the stores are a slightly different analysis in part because when you go into a shopping mall for example and you see a store name such as most are for example gap and then you may see a gap body next door consumers are going to understand that those come from the same store so if you see a most of clothing store and in most beauty supply store consumers are going to understand that those are the same come that's the same company offering both of those stores in that case which is a board presidential decision the board said the evidence is insufficient to demonstrate a closer's mark is famous and then the morning light on to say that the find the parties goods and services related and services and goods in that case were retail service store retail clothing stores versus cosmetic products and fragrances so it is just not true that the board has established precedent that these goods and services can never be related and again in jo renee which my friend just mentioned in that case the board did say there is no per se rule that there is a likelihood of confusion between the respective goods but they said that in general the cases in which confusion has been held ration of how geographically close the the two stores are that would be that could be a relevant consideration in a district court infringement ac for registration purposes where you have an unlimited registration that's presumed covered in the full united states so that you get to give the opportunity for the whole to expand into the whole nation if you choose to   question in front of us here today on on relative fame of the mark in terms of trying to understand the relatedness of goods i ask that because in spite of you know your your distinctions you want to make your fine distinctions there does seem to be a handful of cases not controlling on us as well as or decisions or registrations that seem to be a little bit inconsistent in practice and terms of understanding this question of how much does it matter whether the markets famous and trying to make an assessment of whether  way and other register at the denials or registrations and then same thing with board decisions so that's why i'm trying to figure out is you know part of the other side's argument is more the way i see it  about the famed factor of right dupont fasters i'm talking about in the context of this kids were the other side is trying to promote the idea based on earlier decisions that are not from this court that suggest that the relative fame of the mark will drive consumers beliefs and whether to believe certain categories of goods are in fact related with each other right i mean again i don't think that's consistent with  territory the ultimate standard is likelihood of confusion and that's not treated as a factual matter it's not right well that's true like there's confusion is not that that's the ultimate standard isn't it that is the ultimate so obviously there is some relation between the subject matter of these two stores but if that relation is of the extremely attenuated sword that it might not to be enough to support what is a legal determination of likelihood of confusion and then we're back into the soup of trying to figure out how do we determine what kinds of circumstances support the legal conclusion i agree with that on a on a general level in this case the only challenges to the board's relatedness finding and the board's relatedness finding is a substantial evidence review so that is a factual question because of its total arbitrariness that should somehow give further weight to the idea that consumers are going to find these goods people later than i was just wondering is there a case law that actually that make sure that we articulated it quite that way what we said is that there's a broader scope of protection and so it may be again i don't even think that well i'm talking about the board's decision mention this but ok about face with that so there's more to do do you agree with the proposition that for current purposes geographic proximity of the two stores at issue is irrelevant so that one needs to think wide variety of options and if there were two different stores selling different products i guess as a consumer out ask myself why they'd bother paying rent twice and went out selling votes in the same store so it's a valid point your honor but again and again these are not general give stores as the point was made these are very narrow and again consumers are used to seeing very narrow stores and malls and other other outlets specializing very you know deeply in one case is not typical of the other cases that were cited it first falls into parties proceeding so there was lots of evidence about fame the reason the board didn't find fame was an evidentiary issue there were some gaps in the evidence and there was also an odd twist in that case where the applicant was actually the senior user and it had licensed the mark to the revenue stream so there was also consideration of the of the relatedness of these parties and you know who was doing what person to the license agreement