court it is our contention that the board have buz its discretion in denying helen's motions an initial round of documents that were turned over thirty or so documents and a lot we complained about the document production because it did not show official use of trademark by a in communications with counsel and they indicated that over time they may supplement their productions what happened was they agreed to turn over produced in two thousand and again i was not a part of that case but what we can understand and what was before the board were a few invoices a statement that essentially shows a piece sure that may or may not have had then there's a presumption of abandonment we have any period of time between two thousand and the year two thousand and thirteen to show them it and what we were not given where there's any evidence of use consistent continuing to use during that entire information in connection with films rounds of negotiations those rounds of negotiation are not of record in this case they are completely and there has been no discussion about that below there was never any testimony about it there's no depositions of those discussion about that was just brought up in these pleadings for the first part i don't know what was discussed during those informal communications between the clients we have no understanding of what happened during those meetings and but we need a breakdown because we're entitled to understand is there a three year period of time where you didn't use the trademark we requested obviously right after summary judgment motion came in that we needed additional discovery and we couldn't defend ourselves properly without this information the board below denied that request for additional discovery and again it was always clear that this was one of the issues we were that was very important for us to address we needed to understand if they were using them more and again documents from one hundred ninety six documents from two thousand are just not relevant to the board indicated that they were the same types of documents they were three thousand documents but those those documents themselves two thousand and thirteen there is likely a three year period where the mark was a bat and we did not argue that there was a period of impediment that predated two thousand we did not know where we are we are not concerned with the prison with the pre two thousand and harriet we are concerned with the two thousand and two thousand searching for it we understand that that case is the two thousand cases over but you can always you always have a right to bring a claim for abandonment regardless of with your answer we believe that we couldn't we didn't have enough evidence to do that so what we did was we engaged in discovery and as soon as when the discovery period was technically over we made a motion to it why didn't you have one of those at the time you r answer because we had no evidence that there was none of ailill to us we did not have any fire information only use we didn't do any investigation of the case just start so we initiated and made requests for discovery and we did it again at the time of summary judge of motion and we continued to ask for the size of documents which were needed to support where our foreign abandoning claims in twenty thirteen on you to go back to where you and i were discussing before you didn't just bring them benami i mean also tried to bring a claim predicated on the original application and what was shown as it relates to use relating to the original application would you concede that as to that that and basically it was an abuse of discretion because the board did not have substantial evidence to decide the way they did it all they had was an application for nine hundred ninety six that showed alleged abuse there was a cancellation action in two thousand that we don't know what documents were turned over during that time and based on that they decided that we had no right to bring a better make life so to the extent of the poor and found that the information that you received in two thousand and thirteen wasn't the same character nature as the information that you had before again you would concede that that you couldn't seek an abandonment claim as to that earlier timeframe but you believe that that should not have that should not stop you from seeking  you thought you had an abandonment claim pre two thousand why don't you just assume that if they are already abandoned it three two thousand and like i heard that they they they didn't do anything more in a later period of time was high and just to cert of our investigations you know post filing in two thousand and thirteen so the claim is different and again as you can see we were blindsided with the summary judgment motion and as you'll see the  year to year on the goods or in connection with the seller because we were never turned over this material in shockingly have the end of full briefing on our motion for leave to a man they turn to hold over a six page declaration by a tally that pointed out year by year this is used this is our annual sales so on and so forth we had no right to challenge any of that there's never been depositions in this case we just haven't had the opportunity to challenge wait first of all we don't want to have a situation where we encourage people to make claims that they don't have a good faith basis to make right yes and it's true that it doesn't matter what they knew before two thousand conduct discovery on that and b to assert the claim and it so you're basically saying because at the end of the day we think they can win on this claim they should never been allowed to assert that seems to be pretty backwards of the way procedure works file representing opposition or registration i'm sorry any application or registration that is the subject of an opposition or cancellation is automatically of record through no action of either looking they're not appealing there  been voices and pictures of mr ray says he isn't as that claim has not been appealed it's not before us the only question before us is whether there was abandonment between two thousand and two thousand and fourteen yet so let's turn to that mr race's application including all of the maintenance filings that included additional evidence of us in two thousand and three with a declaration of continued using testability as well as in two thousand and seven of the renewal he says submitted evidence of use in each of those in two thousand and three and two thousand and seven so yes and there are all trademark registers are required to supply evidence of you can sign a declaration of continued use during the sept and sex anniversaries and every ten years so that evidence was record automatically in the twenty thirteen cancellation turning to the question as to what other evidence shows you under the lanham act embark is deemed to be in use when it's used on any man or on the goods and containers for the good on displays associated with the goods or tags or labels affix there to any one of those uses would be sufficient to show trademark use in this case mr raissa has used a smart and every one of those to find ways  three in addition all of the invoice and show that there were sales of those from the beginning of nine hundred ninety six every year from that point as as well as pictures that support the initial specimens that's  were submitted the underlying application and further corroborate that use including shipping labels that were attached to the original application were also produced in the twenty thirteen registration that shows there was consistent use in the shipping labels that were  d to each box of products that were shipped from his store and he had those uses would be sufficient however we have all you're not arguing that all these hired to create design had anything to do with putting the mark on clothing  next labels that show his logo on the t shirts themselves they all support you as well as shipping labels there are six of the boxes that are mailed from his store for every custom designed any of those uses under the lanham act would be sufficient use to show you even at the time that they filed their motion to dismiss they had all of the information they needed to assert a claim of abandonment at that point in time because all of the evidence that was provided simply corroborated the evidence that was already a record yorkers discovery requests at the time that the parties agreed for the exchange which were legally sufficient and proper according to the trademark trial until board's manual procedure but you didn't submit this evidence in response well at the time knew you're not mr aris the file the summary judgment ocean the only issue at bar was whether or not there is a likelihood of confusion so mr ray says simply provide a declaration to confirm that he owns the registration had request discovery that that would go to the question of whether kind has been abandoned in other words forget or eleven you got a third a claim before you ever have a basis for it no that's not that's not our position so  they don't assert it in their answer but they seek it in discovery you don't have to produce it in discovery because it's not in the answer that's what you just sent will now mike my what i was trying to suggest was that the first declaration in support of the m some judgment did not speak to the enemy because that was an issue at the time so the second declaration that was filed in our reply is a summary judgment motion which new yorkers complaining about doesn't include additional information that corroborated all of the the evidence that was already made a record so there there's there's two declarations here and we're not suggesting that they weren't entitled to request for the discovery that was aboard the ground was that they had all the information they needed and did not make a need to make a requirement for a need for further discovery at application twenty nine and were again rejected they argue that mr ray says you need his mark on evidence by specimens that were submitted in the underlying application as well as pages from the web site shows that mr grayson was using his mark in a different way in different channels of trade and in differing with different customers at that time to argue that there was no likelihood of confusion and that's why we suggest  yorker complains that there were no meetings where there was no evidence of meetings between the parties there were in fact discussions in two thousand between the parties as well as in the record or is this something you're just raising for the first time it is in the record  the correspondence between counsel in the underlying board proceedings that suggested that there was a request for suspension they fine print discussions of parties but the fact that there were ongoing discussions or the facts took place in fact admitted that meetings took place they just didn't admit to the substance of the discussion so that information was indeed before the board in the information in the form of lawyer argument yet no evidence as to what occurred in the meetings or the certainly but as far as the evidence of the record is concerned new yorker has shown through a series of actions that they were well aware of what new york what mr raissa has done in connection with this use including all of the maintenance filings including the response to chinese refusal in their application in which they submitted evidence that mr rhys had included in his underlying application which is also an admission that they knew of the evidence that was already a record all of the documents that were provided in discovery in the twenty thirteen registration as a board concluded in a five were substantially the same and include him and the same material facts and fully corroborated the evidence that was already a record so in that regard there is sufficient evidence in the record show that mr ray has continuously used his mark in connection with each and every way in which the lanham act to find the use of a marker and that he has done so consistently since one thousand nine hundred six to present the invoices submitted in the underlying application as well as in the discovery clearly show the logo used on the invoices in the upper left corner as well as sales of products show me what was submitted in discovery point to me in the appendix where you show what was submitted to discovery as opposed to what was submitted in your later decorations and what one forty five shows pictures of the t shirts that are that are screen printed with services logo as well and there are no dates on any of these there are days on some of them but in addition they are corroborated because they're the same substance abuse that was included in the application of our efforts as well as supported by the invoices that evidence sales of this product every year from nine hundred ninety six to the present so were the invoices submitted in is just first of all these documents were not produced until after the fall or answer so the board decision that we did not properly filed at the time of the answer is not supported by any evidence whatsoever so with regards to this specific evidence these invoices do not show you as your article pointed out there is use of fishbone on the top but that's for a service not for a trademark there is no specific evidence on these invoices that shows that someone asked for the fishbone to be added to a t shirt that it was essentially added to a t shirt there is just no connection of the dots from the invoice for the shipping label to the product so would you concede that  attached to supposing you have any labrat designer garbage you say you have to put who said it in order to attach the trademark or the design tags labels or packaging so essentially the evidence i believe there is not evidence of of consecutive use over any other period of time and again we have invoices do not actually show use of the mark i don't see it anywhere is no connection between the sale of this t shirt an invoice twelve one  because i'm unaware of it at this point because we haven't been able to get through discovery to ask mr roger about what happened during the entire thirteen year period of time we don't have any evidence of consistent use other than one of the invoice per adequate for them to make and we made the request as part of our requests we had questions we're asking about continuous use how you're using the marks on the on the actual goods how are you using the mark on the goods or using  consistently so on and so forth these questions were not properly answered we went back and we asked for supplemental responses in some cases we were given them most cases we weren't and then as you can see at the end of the process there's a seven page declaration giving information that we asked for the entire time during discovery we were at a disadvantage they were they knew what we wanted and they knew this information and it was probably responsive to those discoveries requests but we didn't get that information during discovery at all and based on that we waited till the end of discovery to say listen this is all we're getting they haven't shown you space our request for documents to support the use at this point we have an  like and no one president at this point because of the the there was a motion of summary judgment in the case so essentially the case was suspended for all intents and purposes there were six months left in discovery before at the time when they filed a summary judgment motion and even after the summary judgment motion was denied was granted for class twenty five the board actually opened up the case again and extended discovery again so we would have been entitled to additional discovery of that point anyway because there were five other classes of goods there were involved in the case so that there's no prejudice and it