or zero and thereby displaying the exclusive right to use the term zero apart from the marks as a whole we believe a disclaimer is mandated in this circumstance because zero as use rizzi or calorie soft drinks cannot function as a mark either the term is generic or if it is instead merely descriptive there is a lack of evidence showing that it signifies the coca cola company lucidly we believe the board made errors in deciding both of the issues that we below with the would we have to decide the generic question actually decided if we agreed with you about the and adequacy of proof or at least adequacy of ford's reasoning i'm not sure i understand question but the disclaimer works for disclaiming your particular portion of the mark in this case the term zero so there is no question that coke zero for example should be fried just heard we just think that the euro portion should disclaimed and that would affect what we believe that would affect what the coca cola company can do with its marks down the line how can force me against third parties as one example and particularly relevant to our clients  how would it affect their fortune well it's a little unclear because even though the coca cola company has been claiming rights in zero since two thousand and four i believe there is an evidence in the record that they've gone and both of those companies rejected the coca cola's claims of rates and zero so what the coca cola company will do if and when it wins this appeal who knows what it would do if it loses its appeal we hope that it would finally understand that it can't in for here against third parties and win everyone in industry the coca cola company our client pepsi co and the ten's and dozens of other companies in this industry can have more freedom to feel like they could use zero comfortably but again we really don't know what the coca cola company would do term sought to be registered understood by the relevant public primarily to refer to the relevant units of goods and what the board it was holding royal crown to a different standard of showing that zero is the name of a category of goods and this isn't just a question of semantics this actually makes a real difference because case law from this court and others is clear that refer to witness as used in the marvin opinion and other courts means something broader they and sometimes something different and the name a category and as two examples from this court we have the recent case of in required you are restaurants where the term trask has was deemed to be generic for restaurant services because the restaurant could search for rascasse with this apparently a to help users find lawyers so those case and others show that it doesn't have to be the name of a category lawyers dot com is not the name of the category of websites but it was still held to be generic and the result of w this was because the board held the royal crown to the wrong standard it also discounted a large amount of evidence that did go to the issue of whether consumers understand here or to refer to a genus of couldn't even if they don't use it as the name of the category of g applications and those concerned there's some debate about the question of what the soft drinks mean but it soft drinks are and concentrate for making the same some of them also specified energy drinks concentrate syrup or  sports drinks and concentrates and threats of the board is really looking at the question of is hero generic for the genus of goods that includes soft drinks energy drinks and sports drinks and of course included in that is the sub category of goods within that genus which would be zero calorie beverage as in the same question that was it at issue in that in recruit you were restaurants case where restaurants don't have to serve to ask those that ended up  like hydrates or well i think that that argument is a little bit overplayed by the other side because all of the soft drinks they offered under the zero name excluding i think perhaps one two three no longer being so it did in fact have zero calories or at least listed zero calories on the label and there's a certain federal drug regulation that as long as it has fewer than five calories per serving you can put zero on the label so the question is what do the consumers perceive the calorie content of the beverage to be even if it may have one or two calories but they perceive it to be and what the law allows people the manufacturers to say is that the beverage in fact has zero calories so that that that also raises the question that i think that that was discus in record to restaurants case which is you know if the specification of goods in the tress code application had excluded meat for example restaurant services excluding the service of trespass me then wo the ford and that your evidence just wasn't strong enough to show by a preponderance that zero was understood by consumers to reach her to zero calorie products just you know it wasn't as strong as the board imagined it could be in particular focusing on the absence of a consumer proof that they said we had fallen from holding us to the incorrect standard right they said that you have to prove that you're all in the name of the category and then they looked at the evidence and said well hardly any of this evidence shows that people use the euro as the name  guess i'm not remembering that it ever made anything of the distinction which is a real distinction between you and i've referred to sir if you look at page just simply sixteen seventeen of  nothing to link the third party uses so that the public primarily use their understand the term zero to refer to the genus of good there are services and in kenya to marvin gaye in language but then saying that is as the name of a category of disregard discount a large amount of evidence that the royal crown company has put into the record that shows that consumers do in fact understand zero when used on that bridges and in particular is your a calorie beverages to mean zero calories  a page thirteen now they said he cc's goods fall into the broad character of soft drinks and sports and energy drinks which encompasses the narrow category narrower category of soft drinks containing minimal or no calories so are you saying that's not what they were looking at when they're on page seventeen when they talked about what the genus of goods or services is no i'm and that's completely different point i think that they i think the board looked at the proper genus i think that they what they did was they applied the wrong standard of law they considered that the marking against standard of refer to a genus means only the name of a category and that was incorrect as a matter of law based on precedence of this or it and as i and to mean zero calories hey so it was sponsored judged toronto's point there or i mean as we said in princeton bankcard the whole point is what the public perceives you do you think that you had enough affirmative evidence in the establish that the public does perceived items with zero in the title as it refers to soft drinks to mean zero calorie soft drinks yes we certainly do and let me just go through some of that evidence and including the evidence at the board discounted one was the coca cola company's own survey that it undertook before launching coke zero which showed that nearly all respondents understood zero and a soft drink name to mean zero calories after the coca cola company's own product labels advertising in press releases that told consumers over and over and over again that the key attribute of their product was the euro and the euro in the name referred to that euro calories dozens of examples of labels in personal panels from third party product that shows the euro being used in reference to zero calories thus conditioning consumers to understand that virile on a beverage refers to zero calorie evidence of thirty two socceroo from companies other than the coca cola company that you hero in the brand name for the year zero calorie beverages again well one indicating to consumers that zero and a product we need zero calories and also showing that the industry uses zero in a product name and otherwise to indicate he aspect of beverages and then also there were sixty one third party trademark applications and registrations that also used ciro against showing that industry uses zero to indicate a key aspect there's also evidence that was evidence at the board disregarded because they didn't think it showed that consumers use ear as the name of a category what was evidence that they just listed about seven or eight cataclysm exactly disregarded all of that they basically they they gave reasons for their opinion why it wasn't relevant to the question of it being a name of a category some of the evidence they disregarded for other reasons for example the  cancelled an expired registration fee that weren't evidence of anything and that applications are evidence of nothing that they filed but i again i was and both of those points that the character of the applications and registrations their status doesn't matter  what they were being used by for the industry let's hear from the other side will say thank you please the court and british paper representing the coca cola company i will respond in just a minute to some of the points mr pop rosenberg just made but i think you'll be helpful to begin with just a few sort of big picture issues that i think help sometimes call secondary meaning or not those issues are related under this court's case law they both turn on consumer perception how do consumers understand the term when they see it in the marketplace under the governing law the burdens on those two issues before the board in a proceeding like this are very different but both are questions of fact for the board to decide and therefore subject to review by this court under the substantial evidence standard viewing the record as a whole and you never miss the long really does not in dispute this court has said many times in the marvin guinn case princeton vanguard to step in now since first you decide what's the relevant subcategory if you will to look at to see whether or not zero has become the common descriptive name for it which is the test under marking the entrance and vanguard if you look at products having minimal or no calories that's what they argued is that it's low a short and it is understood by consumers and by those who have a financial interest in speaking clearly to consumers namely other marketers to refer to what the thing is not what why was that evidence not essentially sufficiently strong that it was reversible for the board to conclude at what the board looked at your honor and they took the evidence category category as r c tenet that they were briefed below they put assume all of that none of those categories of evidence provided any probative evidence as to what consumers spot there was no consumer evidence there was there was a tiny bit and the board went through it marketers to consumers who have an interest in an accurate understanding by consumers how they use the term is in fact evidence of how consumers understand it's not direct evidence but it is evidence and when there's all this there's all these other usages that they describe the fact that you are never use iraq by itself but always with a recognizable brand name why is that evidence not strong enough to because you know if you don't your honor you have to consider all the evidence right i mentioned earlier both generic miss and secondary meaning are driven by consumer understanding part of the evidence in this case is a consumer survey that was not they did not you are you're correct but the board was also aware of the substantial sales by the coca cola company and the advertising by the coca cola company which then turned to more specifically on something there meaning but the board was aware of that it's not all the evidence you what do you do with the long line of cases which is surely both sound and important that says if you have a term that consumers understand to refer to what the thing is not who sells it the first big company can't monopolize it even though the answer to the survey question that now you know importing this do you associate it with the company would be of course yes that still wouldn't in fact tell you that  that they understand it to refer to say to who is selling it rather than what it is absolutely there are and that's that's more directly relevant to second i mean but on the first issue of the evidence want to talk about first of all the board did not exclude any of that evidence the board weighed all that evidence and considered it and it said in a series of footnotes and that analysis and its opinion why it felt like that evidence was not sufficient to show what consumers understood but there was a little of a disconnect in the sense that the board was sort of checking on pieces of this one standing alone isn't good enough and this one standing alone isn't good enough there was never any assessment of saying but when you put all of it together we might come up with a different know well there was your honor i think in this respect you know the board focused very carefully on what identified as seventeen instances of what really looked some of them looked more like something like a generic use right for generic use and i you know it's as we said in princeton vanguard you're supposed to be looking at the market as a whole and in that case pretzel was was disclaimed here you've got the board basically saying you have to tell us that zero in a number itself standing alone without that when consumers see a phrase like zero drinks zero sodas zero beverages that they know what that means and they know that that's a group of things a class of goods or services you know that's the first part of the whether it's affiliate that with zero calorie soft drinks and as we said in princeton then dark you can't separate if you want both points in the mark and you're not going to disclaim either one you have to take them be ok if someone saw someone who had never seen any advertising or any promotion if they saw a product named coca cola zero with a know what that means what is that zero refer to as a tell them something about the product and i would encourage the court to look at the testimony of coca cola as russell baker he testified that when the company launched these products are the problem frankly was consumers didn't know what the zero meant they just did not we have evidence in the record that r c and its products if that wasn't the date in which you're sitting the marker sick in the market now when they when the use of the word zero is fairly prolific they do and what consumers have come to understand the term to mean which is what we know from the consumer survey we did is that when you see a zero on a soda let's one of those coca cola products and i think i said i don't think the survey does show that it just says the answer the only interesting question in that tiny survey is do you associate that with it seems yes i do associate it with polaroid it seems to me that would tell you almost nothing about whether soto copier is is is not generic or instant camera is not generic this is all part of this line of cases that again there's a methodology for that you put people you give a questionnaire and you say i'm going to explain to you the difference between a generic term and a brand name we give you some examples do you understand yes i do you ask a test question to be sure they get it right and then you  you understand zero or zero drinks to be a generic term for soft drinks having so and so calories or do you understand it to be so for purposes of deciding generic we can and presumably should do common descriptive term of a category well if i have evidence over here that shows one of fifty percent of people think it comes from only one source that weighs against generic ness i'm sorry but the evidence says that maybe more than fifty percent associated with that doesn't seem to me to tell you that more than fifty percent think that it comes from that source the question of association is incredibly loose and don't don't tell me everybody does it that's only trying to understand why if it maybe everybody's doing the wrong thing now was the second i mean of course if you back up this survey yes we did a standard secondary meaning survey but we also had evidence frankly that th traditional ways of proving secondary meaning which is advertising marketing spend ever touching the products together to show that you know all these products at zero the name they all come from us those are traditional ways and we had that in spades obviously we're a large company we had tremendous sales numbers you have them in the record we had tremendous advertising expenditures and that was just that wasn't even by our or their customers actually advertise at the grocery store level so you have massive amounts of advertising right making it which we understand you don't but if i am one of these might not say you don't like it so if you there's no doubt you can get a mark on coke zero the question is whether you can bar others from using that term zero that's that's not an issue on these proceedings you're on coca cola company has never attempted to bar anyone from using zero is especially in any descriptive way are you saying those that your friend on the other side was wrong when she why don't you disclaim zero and then it would me would be much of an issue at all because your honor we are entitled to a registration without zero if they didn't prove generic this is what they chose not to put in a survey we don't know that rand wanted and it didn't work with it just chose not to do it they didn't carry their burden on jannat ness we believe we did carry our burden on acquired distinctness and with those two outcomes we are entitled to registration what about this what if we disagree on generic class and where do you stand on higher distinct if you  journals using all these terms as generic terms when things have been hell generic that's exactly what we don't have here we don't have any dictionary definitions of zero drink zero beverages we have i asked the witnesses from both our side and their side have you ever seen any understanding when consumers see it not all by itself but when they see it as part of a set of or it's a combination which has and immediately recognized brand name in in front of it and i wasn't quite sure what your position was at least once you said what they had to come in and show was that when people saw zero all by itself they knew what it meant and that i thought at least this th question that i was understanding being asked was maybe that's really not the right question but how do they understand zero when they see coke zero zero zero and i basically i think you're right or i'm only answer to what's right for purposes of the generic mr terminations right there has to be some identification of what you think the thing is the common descriptive name for right so in that sense like any other adjective that somebody or used about whether it's generic or not  zero when combined with a self evidently undisputed brand were not a nother common descriptor like your average for a soft drink that's what puts it in context for this case which is when a consumer sees sprite zero right comes from the same source that's the question ok and the question is did they prove the former by a preponderance of the evidence with no direct evidence and no survey so they have the burden and if we prove the latter when we did have a survey and we everybody would have answered the question i see a copy or where does it or see their card the term copier where is it come from they would have said xerox and so your ex fought like crazy to make sure that its name didn't become generic i don't anyway why it's what you just said wouldn't that with that not have been equally applicable there so that it i guess i begin to doubt whether that's quite the right question whether everybody would understood that's where it must come from think that's a question i have to see exactly what the evidence was and that photocopier case right here we the consumers are asked and the beauty of our survey in some respects is of course they've argued for a long time well zero the new diet is the equivalent of die well that's exactly what we test right we said yes consumers do you believe the products with zero in their name come from one source or more than one source they said no but when we asked about diet not over ninety percent of people correctly recognized that products come from all kinds of places all different people well as ninety two percent of the respondents said that it is a generic that well has no secondary meaning for anybody was attesting to americans but it clearly was not a term that people thought came from one source and in the survey but it's long been the law a secondary meaning survey that shows association in the thirty's and forty percent range going all in back i think to the owens corning five or less in fiberglass case the surveys show forty one fifty percent that was good enough for this court so when you get over fifty percent in a survey of secondary meaning the courts the commentators professional party have always said that is clearly sufficient to show choir distinctiveness especially when that's on top of very substantial sales and very substantial advertising so i think the board result in this case the board was extremely careful the board when it itself to the person vanguard decision in terms of how to analyze the issues the board went through the evidence category by category and explain saw the evidence they said r c fell short in proving that it was a generic term but coca cola carried its burden of showing that it had acquired secondary meaning based on those two i think there's clearly substantial evidence to fifty one percent or fifty five percent they they claim and there's other issues with the survey as well one is that it was undertaken in two thousand and eight the trial was held in twenty fourteen i believe so six years difference in during that time acquired distinctiveness in the time of the trial under the right and so at the time of the trial we think the board way the evidence wrong we put in evidence showing that thirty two other beverages made by companies other than the coca cola company were on the market would say in that respect that the sales of these third party beverages were not in consequential our own direct zero product which was put on the market a few weeks after the coke zero products has been on the market since two thousand and four testimony shows that it was destroyed in twenty five thousand retail outlets across the united states and the five year period leading up to the trial it's on the equivalent of one point eight billion twelve ounce cans of product that is not an income sequential product add to that thirty one other products this question that the board was incorrect way any acquired distinctness evidence and then on the acquired distinctiveness side on the descriptive side we think how the board weigh the evidence was wrong because as the court said and you center ation the evidence of so many third parties out there is powerful on its face and beyond that we also put in evidence of our own sales of pepsico sales again totally in the hundreds of millions of dollars of products for products sold nationwide and for several other companies that  zero yes propel zero so we think that the board also eric and weighing the evidence on acquired just interest to go do it to show that the coca cola company had zero distinctive and i would also say that the other err on the there's no evidence that coke has ever used your standing alone and in the louisiana fish by products case this court said that evidence that doesn't fit for the entire market may not be sufficient to show it was acquired distinctness in a particular really think that's particularly true in this case when there were thirty two other beverages on the market that also had serum in the name and i thank you for your time today thank you thank you