convincing evidence the legal standards the legal care and standard is to fill the board did two things first of all that applied pool in this court has repeatedly that the phrase that is at its primary use or primary understanding is in reference to the genus that they stuffed in the first half of the test tube or test second half of the it instead of deciding whether the public primary one primary understanding a fish fry product was in reference to spices sauces and manage it tempted to determine whether the primary understanding of the public was in reference to spices sauces and marinated used in connection with fried fish took the genus properly determined genus tempted to assess generic  account the full scope of the applicant's service because in addition to just retail sales applicant in steel buildings also provided custom design of metal built in this court said that alone is enough to reverse the decision well the board here wants to make that first aspect the determination the proper genus and academic exercise it was took up to say will you determine the genus and then you don't have to use that and if you think about it the completely this g eight is the holding of still the trademark office could go back and say ok we've determined the genus we've done it properly and then we can ignore it and use the narrow genus we started out with the discord corrected us all so taking the genes and narrowing it down to something smaller than than what you're of what the accurate genus they have to determine that completely undermines steel buildings and is improper and i think it's important to realise what that does to the trade mart analysis if the board can do that in any case i mean you can take well the i think the answer that it is to fill up first if you don't have to find that it's generic for the entire genes for only a subset of the genus injure is not generic for pickup trucks but ranger trucks are sold to lots of different people who are rented for strangers texas rangers army i'd like to address absence of evidence of third parties use and the to demonstrate the burden is on the applicant to demonstrate secondary means the burden is one the same a cause to demonstrate generics and the the absence of any third party using this phrase despite the fact that we have been using it since nine hundred eighty five is a really significant issue on the generics question is our third issue on generics besides the question of law your honor is that the board has not met its burden of proof with regard to genetics the the this court quoted judge ham and burden of proving the understanding the primary understanding of a mark when the there is no evidence in the record of third parties using the model is are you saying is a presumption of distinct that your client as he's the term fish fry products alone for purposes of distinctiveness my client does not use the phrase fish fry product alone but the our position is that i have well i guess it depends on what you all what the let me just i mean i think fifty five products sounds pretty descriptive and so in order to get over that you have to you have to show it's  acquired some kind of distinctive terms of the prosecutor but you have to and it doesn't seem to me that there's any evidence that he views fission products alone to establish a secondary meaning it's always been in combination with louisiana or a bunch of other markets and things like that so i wonder if we find distinguishable whether we then are obliged to uphold the board on distinct think that the with regard to required distinctiveness i'm not asking this court to reverse the board i'm asking this court to return the decision to the board to is whether our use our long use of louisiana fish for a product to stablish secondary meanings in the products and with the evidence we submitted to support that was sales evidence in if we agree with him went in there no i think that if that were to happen the case is over and this particular mark is refused because they did not enter the disclaimer that was requested by the trademark examining attorney either one of these grounds would be a sufficient basis to uphold what the board did here is there anything in the future that if he if they did you fish for products alone and try to acquire to stick to that would prevent them from coming back to the board because of this case have the burden of proof to show a lack of a prior distinctiveness in an ex parte of prosecution matter like this one it's the applicant's burden to show acquired distinctiveness second of all the facts than this the facts in the or are not inconsistent with the facts here in kellogg you had a case in which there was more dollars being spent on advertising much higher sales and so kellogg was consistent with what here and i think in our report we did we pointed out that for example in the boston beer case that this court decided over ten years ago there was even more sales and advertising than louisiana fish products have in this case and that case that that mark was still help to not have acquired distinctiveness so this case is consistent with both kellogg and with boston beer company and each case has we decided on its own facts and we think there's substantial evidence in the record here  category and rather that to be registered trademark for goods that that the applicant admitted it specifically marketed as being within that broad product that is or is the position of the office are is something that can grow over time and if you show that evidence that it has grown over time at some point it may reach that point work become something that consumers understand as representing a source rather than describing a product what i'd like to do on generic this is simply say there's no there really are very few disputes here there's no dispute that fish fry products means products used in preparing for eating fried fish that's the meaning there's no dispute about that about consumer understanding of what those terms mean there's substantial evidence in the record that shows public uses of the specific products that are listed in the application tartar sauce cocktail sauce ramel la dressing in the recipes calling for fried fish in food articles talking about fried fish these are things that are used directly on fried fish when you're either making it  eating it in the applicant specifically confirmed when he was asked by the trademark examining attorney that these particular products are marketed by the applicant as something that can be used with fried fish so these are really these are fish fry products in the public understands them as such but then i think you define the relevant public interest as consumers who eat fried fish that's correct that's correct your honor and that this cent ordinary consumers of sauces or marmalade and spices i think i would disagree with that your honor and it is maybe a small disagreement what i think your honest question does is links it to sort of a broader category that was used in the genus description here but magic one says you look at the who the public is by looking at the specific goods in the application and if you look at the specific goods in the application here cocktail sauce from a lot of these are things that are into really related to fried fish and there's substantial evidence that shows that so we think that that's that's an entirely appropriate way to look at it i would point out that when they  a bit of an argument about how the board narrowed the genus i don't believe that the board did that i think if you look at the board's opinion they found what the genus was and then they applied magic wand said ok now we have to look at consumer understanding the relevant public for the particular goods and what the particular phrase means to them in the context of the goods and what they were simply saying was that a consumer faced with tartar sauce cocktail sauce from a lot is going to understand that fish fry products isn't a brand but refers to those particular products that's their primary understanding and there's a lot of evidence in the record of articles and recipes that show that  i would i would also make the point that even if you were to hear this here there's evidence of the record point to to the definition a row of more consumer being those who the ordinary consumer that  fried fish that's the that's the problem i'm having that i don't i don't see that huge you have evidence that that shows or support rather well it's not it's not i think there's there's needs to be evidence that shows that that's a particular market were instructed to look at the with that what consumers of those particular goods are and that's the understanding that we're looking for and that's i think what the the nub of magic wand is you look at the consumer and you look at the consumer debt is basically defined by what the applicant has defined as his good i would also point out that even if you were to accept the argument that genus was narrow when the board continued on with its analysis the applicant specifically admitted that markets its goods at people to use with fried fish so it's really kind of a distinction without a difference of thirty if they're playing the genus was too narrow it doesn't really matter if that's in fact what they're marketing their goods to do is to be used with fried fish what suspended a minute talking about the the ghouls in american fertility argument let me interrupt you and take it back to this case  very quest for a registration of louisiana fish fry products without a disclaimer and so there is a board is required disclaimer let's say that someone comes on the market with new hampshire fish fry product with the presence or absence of a disclaimer in this market make any difference in their opportunity to complain about new hampshire fish  prohibition against them going after someone like that if if the person who was behind new hampshire fish fry products would be able to come back and say you can't it when you're looking at the mark when you look at mark you look at the mark but you also look at the components of it as well and the new hampshire fish fry products would be able to come back and say to the extent that you're saying we can't use fish fry products that can't be the basis of the likelihood of confusion that you're about the law because when you're just claiming it you're saying essentially i'm not claiming exclusive rights in that phrase along and so they haven't sought to register that phrase alone correct  correct and the district court looking at an infringement case would in fact look at the entire mark in that situation but i think there would also be in looking at an entire mark that's comprised of several components you also usually look at what the components are as well and to vac extent i think the district court would be interested in whether there was a disclaimer of those three words clear in the senate and lots of the other circuits have been clear that when you look at a market that's comprised of several components you look at the market as a whole but that doesn't prevent you from looking at the individual elements as well to inform what the market or as a whole may communicate created with or without a disclaimer at the practical evidence i think is just one of a slightly greater hurdle that the applicant would have been showing that new hampshire slightly greater because of the disclaimer and to the extent that i just they just mention that only because that particular element of mark had been disciplined the amount of sales that are behind them as your honor pointed out earlier was not for fish fry products alone it was for marks that either include all the elements that are in the market that's at issue here or at minimum louisiana fish fry so they're off target i would also  data on and use specific permutation of that i think what's clear here is that there's no evidence in the record at all that they've used fish fry products alone i think that's highly significant all of their efforts were on the wheezy and a fish from frogs and we've been in several prior registrations allowed them accepted there to have acquired distinctiveness evidence for the word louisiana so we think that that's that serves as an indicator of sourcing the unconnected with any product you know that's that's exactly right and what i'm saying is in connection with the products that they have been selling we have accepted i believe in more than one red stray ssion that louisiana has acquired distinctiveness and disclaim fish for our products it's the registrational issue but we have a decision of the board below saying that fish fry product is generic and that is an issue that i urge in this court to address and reverse the second i want to leave you with this question the way you can tell is that there is no that they have met the burden of proof here is if you were to ask someone please stop by the store and pick up some fish brought pro i submit to you if you did that you would be sorely disappointed if you expected them to bring back spices sauces and marinated in there's nothing in the record that would indicate that a request for fish for our product is likely t