[00:00:00] Speaker 02:
and call the first case, Brinkerhof Restaurants versus Castle Pines Golf Club, number 251032.

[00:00:07] Speaker 02:
Please approach.

[00:00:23] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:26] Speaker 03:
My name is Mark Levy.

[00:00:28] Speaker 03:
and I represent the Castle Pines Golf Club.

[00:00:31] Speaker 03:
Castle Pines is the owner of the renowned Hummingbird mark that it has used for golf club services, including bar and restaurant services, for over 40 years.

[00:00:42] Speaker 03:
This is a trademark case regarding Brinkerhoff's use of the word equivalent of the Hummingbird mark as the dominant part of its mark

[00:00:54] Speaker 03:
for a bar and restaurant business located less than four miles away from Castle Pines.

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Castle Pines moved for a preliminary injunction.

[00:01:03] Speaker 03:
The district court denied that injunction, and Castle Pines appealed.

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Castle Pines asked this court to reverse and remand to the district court.

[00:01:14] Speaker 03:
Today, yes, Your Honor.

[00:01:16] Speaker 01:
Council, which of the marks is Castle Pines challenging on appeal?

[00:01:20] Speaker 01:
Are you challenging both the composite mark and the word mark?

[00:01:23] Speaker 01:
or just one or the other?

[00:01:25] Speaker 03:
We're challenging both, and both the composite mark and the word mark, which I think was clarified in the briefing.

[00:01:34] Speaker 01:
OK.

[00:01:34] Speaker 01:
And was that raised in your opening brief, the composite mark?

[00:01:37] Speaker 03:
Yes, it was.

[00:01:40] Speaker 03:
OK.

[00:01:41] Speaker 03:
And in addition to that, just so that it doesn't get lost, there is a third mark that is at issue.

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And this is footnoted in our opening brief or the reply brief.

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which is the original mark, which is just a Barr Hummingbird logo mark which Brinkerhoff applied to register.

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It applied to register three marks, the original Barr Hummingbird logo, the new Barr Hummingbird at the Brinkerhoff logo, and the word mark.

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All three of those were applied for

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which required a declaration of a bona fide intent to use in commerce of those marks and all remained pending before the trademark office.

[00:02:25] Speaker 03:
Now today I'd like to address three key legal errors that the district court made.

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The first error concerned the most important factor of the similarity of the marks.

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The district court's conclusion that the marks at issue

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share only nominal if any similarity contradicts the district court's finding that the marks have identical dominant components and shows that the district court misapplied the law that required it to give greater weight to identical dominant components.

[00:03:04] Speaker 02:
So, counsel, I hear you emphasizing misapplied the law, but isn't this a factual question and don't we defer to the district court's decision?

[00:03:16] Speaker 03:
The fact, there is a, the similarity of the marks, the determination of the similarity of marks is a factual question, but to get to that fact requires application of legal principles.

[00:03:30] Speaker 03:
And the problem here that's very clear in the district court's decision

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is that its ultimate conclusion that the marks share only nominal similarity, if any, contradicts its earlier finding that the marks have identical dominant components.

[00:03:46] Speaker 02:
And you say that's a legal problem?

[00:03:49] Speaker 03:
Yes, it's a legal problem.

[00:03:50] Speaker 02:
Why isn't that a factual?

[00:03:52] Speaker 02:
Maybe the district court got the facts right one time and got the facts wrong in another time.

[00:03:58] Speaker 02:
But I don't understand how that turns it into a legal conclusion.

[00:04:04] Speaker 03:
I think there are two ways of looking at it, Your Honor.

[00:04:07] Speaker 03:
One way of looking at it is if you look at it as a factual finding of similarity to the marks and its ultimate conclusion was shared nominal similarity, if any, then we would say that that is a clearly erroneous factual finding on the assumption that it applied the law correctly.

[00:04:26] Speaker 03:
And by the law here, what I'm referring to are the two legal rules that this Court has announced and applied

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that similarities of the marks get more weight, and in addition, the dominant parts of each mark also get more weight.

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So if you assume that the district court applied the law correctly, then the district court's conclusion that the marks share nominal similarity, if any, when the marks, according to the district court itself, shared identical dominant elements, shows that the factual finding is clearly erroneous.

[00:05:00] Speaker 03:
We've looked at it

[00:05:01] Speaker 03:
through a different lens, which is that although the district court acknowledged the legal rules, there's no way you can find that the Marks share nominal similarity, if any, unless the district court did not apply the law, which is why we looked at it as a legal error.

[00:05:24] Speaker 04:
Counsel, let me ask you this.

[00:05:30] Speaker 04:
I think, Judge, I has this right about being a factual question.

[00:05:34] Speaker 04:
But regardless of whether it's a factual question or a legal question, as you say, don't you have a problem on this dominance issue with our precedent in the King of the Mountain Sports versus Christen Court?

[00:05:49] Speaker 03:
Well, Your Honor, I don't think we have a problem there at all.

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And the reason is that in the district court's decision

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in the appendix, page A1238, the district court found, as a matter of fact, to which this court should give deference, that the Brinkerhoff mark, that the word Hummingbird is a predominant element of the Hummingbird mark.

[00:06:16] Speaker 03:
The district court's already made that finding.

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So the problem here... One of the thrusts of the district court's analysis is that you look at the

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the depictions as a whole.

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Wasn't that the thrust of the district court's ruling?

[00:06:39] Speaker 03:
Well, you do look at them as a whole.

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That is also a principle of law that's appropriate.

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We're not saying that any element of the mark should have been ignored.

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The problem here is the district court found, where I quoted from the decision, that the word Hummingbird was the predominant element of the Brinkerhoff

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And then somehow came to the ultimate conclusion that the marks share only nominal similarity, if any, which is directly contradictory.

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Because remember, too.

[00:07:15] Speaker 05:
Couldn't that be because it didn't feel that OmniBird was the predominant feature of your client's mark?

[00:07:23] Speaker 03:
Well, actually, Your Honor, no, because the district court also accepted

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our argument that the Castle Pines mark, which is an image of two hummingbirds, is equivalent to the word hummingbird.

[00:07:39] Speaker 03:
The court accepted that in the decision.

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And that's the correct decision.

[00:07:44] Speaker 05:
But that doesn't mean that, just because it was a part of it, doesn't mean it was the dominant part.

[00:07:50] Speaker 03:
Oh, Your Honor, the Castle Pines mark, that is all of it.

[00:07:54] Speaker 03:
The Castle Pines mark is an image of two hummingbirds.

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That's all it is.

[00:07:59] Speaker 04:
Thank you.

[00:08:00] Speaker 04:
I get that.

[00:08:02] Speaker 03:
Yeah.

[00:08:03] Speaker 03:
So what you have here, just to cut to the chase, you've got the Castle Pines mark, which is equivalent to the word Hummingbird.

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Hummingbird isn't just the dominant part of the mark.

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It is the mark.

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And you compare that to the Brinkerhof mark, which the district court found that the predominant element of that, in this case, the Lobenmark, was Hummingbird.

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And there's no way to make that consistent with its ultimate conclusion that the marks share only nominal similarity of any, and the similarity of the marks factor favors Brinkerhoff.

[00:08:40] Speaker 03:
It makes no sense at all.

[00:08:42] Speaker 03:
So whether you look at it as a- Well, you know what?

[00:08:44] Speaker 04:
Help me with this.

[00:08:45] Speaker 04:
Why doesn't it make perfect sense under King of the Mountain?

[00:08:52] Speaker 04:
Because you have to look at the whole mark?

[00:08:54] Speaker 04:
It makes perfect sense with King of the Mountain.

[00:08:57] Speaker 04:
You can add the same words, but the marks are not that similar.

[00:09:05] Speaker 03:
I think because if memory serves, that the words in King of the Mountain were not determined to be the predominant elements of both marks.

[00:09:16] Speaker 03:
That's the problem here.

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Of course you look at the whole thing.

[00:09:20] Speaker 04:
Well, you do have that wrong.

[00:09:23] Speaker 04:
It's because when the court was talking about that, it says, assuming the phrase king of the mountain constitutes the dominant force of the defendants as plaintiff argues.

[00:09:38] Speaker 04:
So that's exactly what they were saying.

[00:09:41] Speaker 04:
It was the words.

[00:09:47] Speaker 03:
Well, Your Honor, I would say in this case, the differing factor in this case is that the district court came to the conclusion that the marks share only nominal similarity.

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And that is either a clearly erroneous conclusion, if it applied the law correctly, or you have to say that the district court didn't apply the law correctly.

[00:10:14] Speaker 03:
If given that, at a minimum, that requires reversal and remand to the district court to reconsider the similarity of the marks factor in light of that very clear error.

[00:10:30] Speaker 01:
I have a question.

[00:10:30] Speaker 01:
You've mentioned geographic proximity in your argument today, and you also mentioned it several times throughout the briefing.

[00:10:39] Speaker 01:
What role does the geographic proximity

[00:10:43] Speaker 01:
play in this case, or where does it fit in to the analysis?

[00:10:46] Speaker 03:
Thank you, Your Honor.

[00:10:49] Speaker 03:
It fits in in connection with the similarity of the services, goods or services issue.

[00:10:59] Speaker 03:
There is some, I don't have it right off the top of my head, but in our briefing, there is some authority for the fact that you look at geographic proximity in considering the nature, the similarity of the goods and services

[00:11:12] Speaker 03:
used in the case.

[00:11:14] Speaker 02:
Well, just to follow up on that, then, how about the fact that there's golf and then there's a bar?

[00:11:22] Speaker 02:
I mean, right?

[00:11:25] Speaker 02:
Isn't there a difference there?

[00:11:27] Speaker 03:
Well, I would say no, Your Honor, respectfully.

[00:11:32] Speaker 03:
So for two reasons.

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One is that the golf services for which Castle Pines Mark is registered encompasses

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bar and restaurant services, for purposes of the registration.

[00:11:45] Speaker 02:
But isn't it predominantly golf?

[00:11:48] Speaker 03:
It is a golf club.

[00:11:49] Speaker 03:
But it also, if you look at the underlying record, there is undisputed evidence, incredible evidence, of the predominant use of the Hummingbird mark in connection specifically with the bar and restaurant services offered by the club, which have been offered for over 40 years.

[00:12:10] Speaker 03:
So in other words, you don't even have

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You don't have to just keep your laser focus on the registration.

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We have common law rights in the use of the mark in the bar and restaurant services at the club.

[00:12:21] Speaker 03:
Those services are, and this is another place where the district court erred, the district court found that the services were dissimilar.

[00:12:30] Speaker 03:
That's a clearly erroneous finding.

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It's undisputed that Castle Pines has provided bar and restaurant services under its mark, just like

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The Brinkerhoff intends to provide bar and restaurant services at its restaurant under its mark.

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The fact that those services at Castle Pines are offered at a private membership club doesn't make the services any more different.

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Now, I'll give you a silly example.

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If you go to Costco as a membership club, you may go to Costco to fill up your car at the gas station.

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Those services, gas station services, are the same as the gas station services provided by the shell down the road that's open to the public.

[00:13:15] Speaker 03:
The fact that Costco is a membership club doesn't make the services any less similar.

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Now, the fact that it's a private membership club, I'm not saying is material.

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It's relevant.

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It should be considered.

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But the services are the same.

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And the district court clearly erred in finding that they were not.

[00:13:34] Speaker 04:
Council, what do we do with the proposition that the Patent and Trademark Office has these two different categories?

[00:13:41] Speaker 04:
It has a category of country club services, and it has a different category of bar and restaurant services.

[00:13:47] Speaker 04:
Those categories... They say we're dealing with that issue with the application by the breaker office.

[00:13:56] Speaker 03:
Those categories are purely for... Nothing ever came up.

[00:13:59] Speaker 04:
Nothing ever came up as to similarity.

[00:14:02] Speaker 03:
First of all, the classification system for the Trademark Office has absolutely no substantive bearing.

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That is for administrative purposes only, and it has absolutely no bearing on the similarity of the goods or services.

[00:14:16] Speaker 03:
That is a complete red herring, Your Honor.

[00:14:19] Speaker 03:
And do you have authority in that?

[00:14:21] Speaker 03:
Yeah, it's in our briefing on that.

[00:14:24] Speaker 04:
I don't have it.

[00:14:26] Speaker 04:
Your authority that the Patent and Trademark Office categories are wholly irrelevant.

[00:14:32] Speaker 04:
This was already in your brief.

[00:14:34] Speaker 03:
There is.

[00:14:34] Speaker 03:
They're administrative.

[00:14:37] Speaker 03:
That's fine.

[00:14:39] Speaker 01:
If it's there, we'll find it.

[00:14:43] Speaker 01:
An additional issue you raise in your briefs is the district court's analysis of actual confusion.

[00:14:49] Speaker 01:
And I just want to make sure I didn't miss it.

[00:14:51] Speaker 01:
There was expert testimony offered at the district court level, but I didn't see any reference to it.

[00:14:56] Speaker 01:
Did the district court judge make any findings about the experts in the order?

[00:15:01] Speaker 03:
The district court

[00:15:02] Speaker 03:
there was a survey offered by Bringerhoff, presented by an expert.

[00:15:11] Speaker 03:
We had an expert rebut that survey evidence.

[00:15:14] Speaker 03:
The district court completely avoided it with a 10-foot pole, didn't touch it.

[00:15:20] Speaker 03:
The reason why we think he didn't touch it is because our expert

[00:15:25] Speaker 03:
very persuasively explained that their survey wasn't worth the paper it was printed on because of defects in its administration and how it was made.

[00:15:34] Speaker 02:
All right.

[00:15:34] Speaker 03:
Thank you.

[00:15:35] Speaker 02:
Council, your time has expired.

[00:15:37] Speaker 03:
I see that.

[00:15:40] Speaker 02:
You can conclude in one sentence.

[00:15:42] Speaker 03:
In one sentence.

[00:15:45] Speaker 03:
Your Honors, I was unable to get to the other two errors, which is fine.

[00:15:51] Speaker 03:
It's in our briefing.

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But we believe that once the errors are corrected, what you're left with is a very strong case of likelihood of confusion that the district court just simply missed.

[00:16:06] Speaker 03:
And we ask for reversal and remand for the district court to reconsider this in light of your opinion.

[00:16:15] Speaker 02:
Thank you.

[00:16:15] Speaker 02:
Thank you.

[00:16:45] Speaker 00:
Please proceed.

[00:16:46] Speaker 00:
Good morning, Your Honors.

[00:16:48] Speaker 00:
May it please the Court?

[00:16:49] Speaker 00:
My name is Jessie Pellant, and I am here representing Brinkerhoff Restaurants, LLC, for the EPPLE.

[00:16:55] Speaker 00:
With me is Tim Sullivan, also Studio IP.

[00:17:00] Speaker 00:
The policy behind trademark law is to protect the consumer from confusion.

[00:17:05] Speaker 00:
Trademark law is distinct from other forms of intellectual property as it is concerned with the consumer

[00:17:13] Speaker 00:
and the possibility that the consumer might be mistaken as to the source or sponsorship of its goods or services that it has paid for in the marketplace.

[00:17:23] Speaker 00:
The analysis to determine if a likelihood of confusion exists is a complex, multi-part factual analysis trying to get to whether a consumer would or would not be confused.

[00:17:35] Speaker 00:
The district court did a careful analysis of all the factors

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and came to the conclusion that there was no evidence of a likelihood of confusion in this case.

[00:17:44] Speaker 00:
Castle Pines is proud of their brand, but that does not give them the right to tell businesses in the area what they can or cannot do with their branding without a legal basis to do so.

[00:17:54] Speaker 02:
Council, can I get you to start with your opponent's argument that there's an inconsistency, which he claimed was a legal error, in the findings?

[00:18:06] Speaker 00:
Sure.

[00:18:06] Speaker 00:
We believe that under the law, a preliminary injunction decision is reviewed under abuse of discretion standard and all that was found under the court under the likelihood of confusion analysis were findings of fact which are to be reviewed under the clearly erroneous standard.

[00:18:23] Speaker 02:
Okay, then why aren't there two factual findings that are inconsistent?

[00:18:35] Speaker 00:
I believe there are not factual findings that are inconsistent.

[00:18:40] Speaker 02:
I'm just asking you to respond to his primary argument.

[00:18:44] Speaker 00:
Yeah, OK.

[00:18:45] Speaker 00:
Understood.

[00:18:45] Speaker 00:
Under the Pegasus case, Your Honor, I think that is where they're leaning into the argument that when you see something, it brings up that same connotation.

[00:18:59] Speaker 00:
And the court actually did acknowledge that the hummingbird

[00:19:04] Speaker 00:
is itself the largest portion of this mark.

[00:19:07] Speaker 00:
So they considered that case.

[00:19:09] Speaker 00:
They considered that analysis.

[00:19:11] Speaker 00:
However, given that the actual whole of the likelihood of analysis, likelihood of confusion analysis, is to actually look at a comparison of a composite mark as a whole and consider all of the factors at once.

[00:19:27] Speaker 00:
The court did that and yet still found that there was not a likelihood of confusion given all of the factors put together.

[00:19:34] Speaker 02:
But saying the main part of the mark is the same, how can you have an overall determination that there is no similarity?

[00:19:49] Speaker 00:
Sure.

[00:19:50] Speaker 00:
And the court went through a detailed analysis looking at the fact that one hummingbird is of watercolor, and it is forward-facing with wings outspread.

[00:20:02] Speaker 00:
There's only one, not two.

[00:20:03] Speaker 00:
It's not a geographic image.

[00:20:05] Speaker 00:
It's not two from a side profile.

[00:20:07] Speaker 00:
There's no circle surrounding the hummingbird that's presented.

[00:20:10] Speaker 00:
There are words presented with our client's mark, which is bar hummingbird at the Brinkerhof.

[00:20:17] Speaker 00:
Also noting that at the Brinkerhof, while it is a house mark, it does have significant strength.

[00:20:22] Speaker 00:
There is evidence in the record that our client has 700,000 customers come through its doors every year, whereas Castle Pines has 400 members.

[00:20:31] Speaker 00:
And even with the golf tournament that came through, the BMW tournament, there's evidence in the record to support that there were 100,000 people that came to that versus our clients, 700,000 that come through their doors.

[00:20:45] Speaker 00:
There is some weight given to the house mark here with Brinkerhoff, such as the Kellogg case.

[00:20:50] Speaker 02:
So I guess your argument is the factors that you just listed outweigh the fact that the primary similarity is the Hummingbird.

[00:21:00] Speaker 02:
Absolutely.

[00:21:01] Speaker 01:
So my question kind of ties into that.

[00:21:04] Speaker 01:
Which mark do you understand to be being challenged on appeal?

[00:21:07] Speaker 01:
Do you understand both the composite and the word mark, or one or the other?

[00:21:11] Speaker 00:
Your Honor, I believe that they have focused on the word mark because they have really leaned into the fact that the words themselves equate what the image of Castle Pine's composite mark is, logo.

[00:21:27] Speaker 01:
And did the district court separately analyze the wordmark versus the composite mark?

[00:21:31] Speaker 01:
Like you just went through the description of how the composite mark differed from Castle Pine's mark.

[00:21:36] Speaker 01:
But did he also analyze the difference between Castle Pine's mark and the wordmark?

[00:21:43] Speaker 00:
Yes, Your Honor.

[00:21:44] Speaker 00:
The district court did look at the wordmark as its part of the logo and the words themselves.

[00:21:52] Speaker 00:
So the court analyzed both.

[00:21:54] Speaker 01:
but a word mark doesn't have any font or stylization to it.

[00:21:57] Speaker 01:
Is that correct?

[00:21:58] Speaker 00:
Correct.

[00:21:59] Speaker 01:
Okay.

[00:21:59] Speaker 01:
Thank you.

[00:22:00] Speaker 00:
You're welcome.

[00:22:05] Speaker 01:
I also have an additional question.

[00:22:08] Speaker 01:
So the district court went through the various factors that are outlined for likelihood of confusion.

[00:22:13] Speaker 01:
Is the failure to consider any one of the multiple factors in the likelihood of confusion analysis automatically constitute reversible error?

[00:22:22] Speaker 00:
No, Your Honor.

[00:22:23] Speaker 01:
And what's your authority for that?

[00:22:26] Speaker 00:
The authority is that in the context.

[00:22:43] Speaker 01:
And if it's in your brief, I'm not trying to waste your time.

[00:22:45] Speaker 00:
Oh, sure, sure.

[00:22:46] Speaker 00:
Yes, I mean, it's in our brief, but I was trying to find in actually the King of the Mountain case.

[00:22:52] Speaker 00:
where it does talk about that all of the factors are to be, the strength of the plaintiff's mark can outweigh any other factors.

[00:23:03] Speaker 00:
And it is true that all of the, there's not one determinative factor that it is, and Sally Beauty is probably the best authority for that.

[00:23:15] Speaker 02:
Thank you.

[00:23:16] Speaker 02:
But can I ask you, those cases don't say that you can just not talk about a factor, right?

[00:23:23] Speaker 02:
Do you have authority for that?

[00:23:25] Speaker 00:
That you cannot discuss a particular factor.

[00:23:28] Speaker 00:
Exactly.

[00:23:29] Speaker 00:
The court did go through every factor that is actually to be determinative to find likelihood of confusion or not.

[00:23:41] Speaker 00:
So we can look at each of those factors that the court looked at.

[00:23:46] Speaker 00:
But they did consider the strength.

[00:23:48] Speaker 00:
They discussed that.

[00:23:49] Speaker 00:
Even if the mark for Castle Pines has strength, it is limited to the golf industry.

[00:23:58] Speaker 00:
The court during our preliminary injunction hearing also discussed the conceptual strength of the mark and discussed how it would lean towards finding the mark to be arbitrary.

[00:24:10] Speaker 00:
The court did look at the site sound and commercial strength and impression of the mark as a whole.

[00:24:18] Speaker 00:
the court looked at overlapping services?

[00:24:22] Speaker 04:
The one consideration that the court... Well, we counsel effectively, and it's not unusual, that the court didn't really consider actual confusion because there was no acceptable evidence that there was actual confusion.

[00:24:45] Speaker 04:
So even in this case, there's no consideration of that

[00:24:50] Speaker 00:
Correct.

[00:24:50] Speaker 00:
I would say the court did consider the survey evidence that was put forth, which would give a reading of whether or not there is likelihood of confusion possibility, whether there is actual confusion as it stands now, because the marks were presented to the survey participants in an actual, ever-ready test to see whether or not there was likelihood of confusion presented with the people that were surveyed.

[00:25:20] Speaker 04:
Can you say the court relied on that?

[00:25:24] Speaker 00:
The court took it into its overall analysis as it was part of the preliminary injunction hearing.

[00:25:33] Speaker 01:
Did he make any findings, though?

[00:25:36] Speaker 01:
I'm asking because I don't recall seeing any mention of the expert testimony in reviewing the district court's opinion.

[00:25:48] Speaker 00:
I will look briefly to see if I see anything that jumps out as well.

[00:25:55] Speaker 04:
Well, you agree with this what you counsel, is that since Bregerhoff had not been in business using this mark, there could be no confusion there.

[00:26:04] Speaker 04:
And so the only confusion would be from showing the marks to different people and having them opine on when they thought it was confusing them.

[00:26:11] Speaker 04:
That would be the only way to do so, isn't that correct?

[00:26:14] Speaker 00:
Correct.

[00:26:16] Speaker ?:
All right.

[00:26:16] Speaker 04:
And the court didn't accept that.

[00:26:19] Speaker 00:
Yeah, considering the courts above, this is what the court states regarding the lack of consumer confusion resulting from the marks.

[00:26:31] Speaker 04:
Here's my point.

[00:26:32] Speaker 04:
It's not unusual for courts not to talk about the lack of actual confusion when there's insufficient evidence to that.

[00:26:40] Speaker 04:
Isn't that correct?

[00:26:42] Speaker 00:
Yes, Your Honor.

[00:26:43] Speaker 00:
They do note that the other factors need only minimal discussion because of

[00:26:49] Speaker 00:
their finding of the lack of similarity between the marks and the lack of intent to tread on the goodwill of the golf club as well.

[00:27:17] Speaker 00:
The district court did not err in their decision.

[00:27:19] Speaker 00:
And I would like to note that the Lanham Act does state that a likelihood of confusion is as to affiliation source or sponsorship.

[00:27:28] Speaker 00:
And the court did in fact look at the strength of the marks and did in fact discuss and cite to the Kellogg case noting that even if there is a strength of the mark in this case for the sponsorship,

[00:27:45] Speaker 00:
analysis that it is only to golf.

[00:27:48] Speaker 00:
There was not sufficient evidence in the record to support that the Castle Pines Golf Club mark is otherwise as strong of a fanciful mark, such as in the Pegasus case.

[00:28:04] Speaker 04:
Am I correct that there is, first of all, there is live testimony in the evidence right here?

[00:28:11] Speaker 00:
Yes, Your Honor.

[00:28:13] Speaker 04:
And there was also a presentation of videos of the environments of both the entryway to the golf course and where the restaurant was going to be located.

[00:28:31] Speaker 04:
Is that correct?

[00:28:32] Speaker 00:
Yes, Your Honor.

[00:28:34] Speaker 00:
Yes, the video actually depicted

[00:28:37] Speaker 00:
what the drive is like going to the golf club.

[00:28:40] Speaker 00:
There are several stop points where you would have to either be a member or give a member's name in order to pass through the gates.

[00:28:49] Speaker 00:
It is a private course and members of the public are not allowed to even drive up to the golf course unless you are invited by a member.

[00:29:02] Speaker 00:
The front of the bar at the Brinkerhof

[00:29:06] Speaker 00:
is connected to the Brinkerhoff restaurant.

[00:29:09] Speaker 00:
As you walk up to an arch, both logos are presented at the front entrance.

[00:29:15] Speaker 00:
And it also shares a parking lot with the... What do you mean when you say both logos?

[00:29:23] Speaker 00:
Sure.

[00:29:23] Speaker 00:
The Brinkerhoff restaurant.

[00:29:27] Speaker 00:
The Brinkerhoff restaurant is connected to the bar Hummingbird at the Brinkerhoff.

[00:29:34] Speaker 00:
Yes, I understand.

[00:29:34] Speaker 00:
And so as you walk up,

[00:29:36] Speaker 00:
you see both of those logos as a consumer as you walk up to that archway from a public parking place.

[00:29:43] Speaker 04:
What are you talking about?

[00:29:44] Speaker 04:
The Brinkerhoff restaurant or the bar?

[00:29:48] Speaker 00:
Yes, the Brinkerhoff restaurant and the bar Hummingbird at the Brinkerhoff.

[00:29:52] Speaker 00:
Logos are both presented to the consumer as they walk up to the restaurant.

[00:29:56] Speaker 00:
And it does share a parking lot.

[00:29:58] Speaker 00:
Oh, sorry.

[00:29:58] Speaker 00:
Go ahead.

[00:30:02] Speaker 04:
There's also one in their other restaurants there.

[00:30:05] Speaker 00:
Yes, Your Honor.

[00:30:06] Speaker 00:
Yeah, it shares a parking lot with Sevina's Mexican Kitchen, which is also owned by the Brinkerhoff restaurant family.

[00:30:17] Speaker 00:
Those factors, I believe, were weighed heavily by the district court in determining the amalgamation of evidence that really supports that a consumer would not be confused as to the source of this particular bar and restaurant

[00:30:33] Speaker 00:
because of all of those factors that a consumer would be presented with as they are accessing the restaurant itself.

[00:30:44] Speaker 04:
It is a cross from a strip mall.

[00:30:52] Speaker 00:
Yes, Your Honor.

[00:30:54] Speaker 04:
Correct, Your Honor.

[00:31:04] Speaker 00:
I did want to point out one thing that Council discussed in terms of the fact that it is undisputed that the golf course is offering bar and restaurant services.

[00:31:15] Speaker 00:
And at no point has Castle Pines Golf Club registered for bar or restaurant services.

[00:31:23] Speaker 00:
And those services, again, are not available to the public.

[00:31:28] Speaker 00:
There was evidence in the record that someone who is a member of the public would have to

[00:31:34] Speaker 00:
be escorted with a member of the golf club and wear a particular colored jacket even to attend one of the restaurants there.

[00:31:43] Speaker 02:
Council, your time has expired.

[00:31:44] Speaker 02:
You can give us a summary in one sentence.

[00:31:49] Speaker 00:
Sure.

[00:31:50] Speaker 00:
In conclusion, the district court did not err in their decision.

[00:31:53] Speaker 00:
Castle Pines presented no evidence supporting potential confusion.

[00:31:57] Speaker 00:
The district court had sufficient basis and facts to make its findings.

[00:32:01] Speaker 00:
And because the district court did not abuse its discretion in finding that Castle Pines failed to make a strong showing of likelihood of success on the merits, we ask that this court affirm the district court's decision.

[00:32:12] Speaker 00:
Thank you.

[00:32:13] Speaker 00:
Thank you.

[00:32:14] Speaker 03:
Thank you.

[00:32:16] Speaker 03:
Your Honor, excuse me.

[00:32:18] Speaker 03:
May I have one minute per vote?

[00:32:20] Speaker 02:
No.

[00:32:20] Speaker 02:
Thank you, though.

[00:32:22] Speaker 02:
The case stand's submitted, and we are going to go to the next case.

[00:32:27] Speaker 02:
Thank you for your helpful arguments.