[00:00:00] Speaker 03:
Wolfskin versus New Millennium Sports 2014-1789.

[00:00:08] Speaker 03:
We'll hear from Mr. Wade when he's ready.

[00:00:16] Speaker 02:
Good morning.

[00:00:16] Speaker 02:
May it please the court.

[00:00:17] Speaker 02:
I'm Richard Lev.

[00:00:19] Speaker 02:
I represent the appellant, Jack Wolfskin.

[00:00:21] Speaker 02:
I'd like to reserve five minutes for rebuttal.

[00:00:25] Speaker 02:
This opposition is based solely on a composite mark as registered, which consists of the brand name Kelme and a commonplace childlike drawing of a poor print.

[00:00:40] Speaker 02:
The notice of opposition doesn't plead any registration for the paw designed by itself.

[00:00:45] Speaker 02:
It doesn't claim any common law rights in the paw designed by itself.

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They don't claim the design component is famous or even well known.

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The opposer presented no evidence that it ever used the paw print by itself or promoted the paw print or did anything to encourage consumers to view that paw print as a trademark.

[00:01:09] Speaker 02:
The opposer presented no evidence that consumers associate that paw print with the opposer.

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And it's not surprising since there are so many other paw prints out there.

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In short, there's no evidence whatsoever

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that this paw print in their composite mark is a distinctive element of the paw print, as the Board asserted.

[00:01:33] Speaker 02:
The main error of the Board was that it failed to consider the marks as a whole, as the Opposer admits that they were required to do.

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The Board assumed that the dominant element of the composite mark was the brand name

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And they admitted, the board admitted, that Kelme creates a visual and phonetic impression that is absent from the applicant's mark.

[00:02:00] Speaker 02:
But the only comparison the board made was between the two paw prints.

[00:02:06] Speaker 00:
Well, you say they didn't consider the mark as a whole.

[00:02:09] Speaker 00:
It seems to me that they said they were looking at the mark as a whole.

[00:02:12] Speaker 00:
I think, isn't it more accurate to say that your argument is that having considered the mark as a whole, they reached the wrong conclusion.

[00:02:20] Speaker 00:
as to whether the mark as a whole would have been, there would have been a likelihood of confusion.

[00:02:28] Speaker 02:
The only discussion, the only statement they made comparing the two marks was, it's on page 19 of the opinion, it says the applicant's mark, my client's mark, quote, resembles in many respects the design component of the opposer's mark, close quote.

[00:02:46] Speaker 02:
That's the only comparison they made.

[00:02:48] Speaker 02:
My clients paw with the design component of the composite mark.

[00:02:52] Speaker 02:
They made no comparison of the mark as a whole.

[00:02:56] Speaker 02:
Clearly, if they had, they would have said, it's got Kelme, and you don't have Kelme, you don't have anything like Kelme.

[00:03:02] Speaker 02:
It made no fine in comparing the marks as a whole, and that's a reversible error.

[00:03:08] Speaker 02:
And the only support they gave for comparing the design element was they said some unnamed companies often use the design component of a composite mark

[00:03:17] Speaker 02:
by itself without the word mark.

[00:03:19] Speaker 02:
There's no evidence of that.

[00:03:20] Speaker 02:
It doesn't let on substantial evidence.

[00:03:22] Speaker 02:
There's no evidence, let alone substantial evidence, that consumers believe that to be the case.

[00:03:28] Speaker 02:
And in this specific case, there's no evidence that a Poser has ever used its paw design separate and apart from the Kellman mark.

[00:03:37] Speaker 00:
The Poser admitted... Well, the box, I guess.

[00:03:41] Speaker 00:
It was on different sides of the box from the name.

[00:03:43] Speaker 02:
Well, there's several things about that.

[00:03:44] Speaker 02:
First, you have to start with their admission.

[00:03:47] Speaker 02:
that, quote, the Kelme word element and the paw print have always been used together.

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That's from their brief in the court below, and that refers to a testimony of their witness who said the exact same thing as page 299 of the appendix.

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Second, none of the evidence that the board pointed to is of the original paw design.

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This is the new paw design, and you have to remember that they never amended their registration.

[00:04:17] Speaker 02:
The only registration they have that they're relying on in this opposition is the old design.

[00:04:22] Speaker 02:
So the three pieces of evidence that the board relied on are the new design, which is not part of this case.

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And the board agreed that this is the revised version.

[00:04:32] Speaker 02:
And those three pieces are the box.

[00:04:35] Speaker 02:
As you point out, it's on the top of the box.

[00:04:37] Speaker 02:
But on the four sides of the box, it says Kelme.

[00:04:40] Speaker 02:
And Mr. DiSilvero said that they put Kelme on there to emphasize the Kelme brand because

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That's what people go into a store and ask for.

[00:04:48] Speaker 00:
For example, we all know the Nike swoosh shows up by itself in any settings, including on the shoe.

[00:04:55] Speaker 00:
Although if you look around the shoe, you can find the word Nike somewhere on the shoe, but you wouldn't argue that the Nike swoosh is not by itself a trademark, would you?

[00:05:06] Speaker 00:
Well, there are some companies like Nike, but the amount of... Chevrolet, their design, McDonald's, for that matter, the Golden Arches.

[00:05:14] Speaker 02:
Yeah, but those companies

[00:05:15] Speaker 02:
spend, as my kids would say, gazillions of dollars on promoting those marks.

[00:05:20] Speaker 00:
I'm just wondering whether the statement in the board's opinion, which you say was not supported by the evidence, isn't fairly self-evident, just to say, not with respect to this particular mark, but just in general, that companies often use the design component of their mark.

[00:05:36] Speaker 00:
I mean, those are three examples that come immediately to mind.

[00:05:39] Speaker 02:
Well, those are three examples of extremely famous marks that

[00:05:44] Speaker 02:
on which they spend a vast amount of money.

[00:05:47] Speaker 02:
I don't know whether it's true that companies often use them.

[00:05:50] Speaker 04:
I suppose one response would be that, as far as you know, Nike doesn't have a registration for the mark Nike plus Swoosh.

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They might have a registration for Nike.

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They might have a separate registration for the Swoosh.

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but not necessarily what we have here.

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They do have a registration for the sewage actually.

[00:06:12] Speaker 04:
So here what we've got is potentially someone using a portion of the legal right that they've been granted on the register by the PTO and trying to promote one half of the mark, I guess the paw print.

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Right, trying to rely on it.

[00:06:32] Speaker 02:
They're dissecting the mark.

[00:06:33] Speaker 02:
And that's what, that was the board's error.

[00:06:35] Speaker 02:
They dissected the mark.

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There's been a long-standing rule that you don't dissect marks, you compare the marks as a whole.

[00:06:40] Speaker 02:
There's no evidence that that, in this particular case, that this company, the opposer, used that paw design.

[00:06:45] Speaker 04:
Same time, there's, I think there's a case in the briefing called United States Shoe.

[00:06:49] Speaker 04:
It's a TTAB case.

[00:06:51] Speaker 04:
Correct.

[00:06:52] Speaker 04:
But the point there was if the new mark owner, the applicant,

[00:06:59] Speaker 04:
comes forward and trying to register something that's maybe half of somebody else's already registered mark, there's always the potential for confusion by the consumer out there, assuming same goods and trade channels, that they're going to think of this new applied for mark as a shorthand version of the already registered mark, right?

[00:07:21] Speaker 04:
So that's also something we have to be aware of.

[00:07:24] Speaker 02:
In that case, the opposer's mark was Crest Career Images.

[00:07:28] Speaker 02:
and the applicant's mark was career image.

[00:07:31] Speaker 02:
It wasn't a design, it wasn't a commonplace design element of a composite mark, but career images is a distinctive phrase.

[00:07:40] Speaker 02:
I don't know what a career image is, and it has no generally accepted meaning.

[00:07:45] Speaker 02:
It was a co-dominant portion of the composite mark.

[00:07:52] Speaker 02:
Crest, the famous, I guess it's Crest toothpaste.

[00:07:56] Speaker 02:
and career images, they would be co-dominant portions of that mark, not just a non-distinctive portion of the mark.

[00:08:02] Speaker 04:
But I guess you would agree that a trademark registrant has the right not only to avoid confusion against perhaps the full composite mark, but also controlling portions of the mark that might be applied for by someone else

[00:08:21] Speaker 04:
if in fact that there is a good basis for showing that consumers might look at that shortened version as a shorthand version of the earlier registered mark.

[00:08:31] Speaker 02:
Exactly.

[00:08:32] Speaker 02:
You could have such a case, but that's not this case.

[00:08:35] Speaker 02:
In this case, you've got a dominant portion.

[00:08:38] Speaker 02:
Everybody agrees that Kelme is the dominant portion of the composite mark.

[00:08:42] Speaker 02:
That's what people ask for when they go into a store.

[00:08:45] Speaker 02:
And you've got a non-distinctive commonplace kid's drawing of a paw

[00:08:50] Speaker 02:
And we submitted, maybe it's appropriate to talk about the third party use.

[00:08:54] Speaker 02:
We submitted 94 registrations and applications that had paw prints.

[00:09:00] Speaker 02:
About half of them takes up, the registrations take up half of one of these volumes.

[00:09:06] Speaker 02:
About half of those are very similar marks to what the plaintiff or the opposer has in its, as the design element of its composite mark.

[00:09:18] Speaker 04:
appropriate or within the TTAB discretion to limit the pool to focus on to those marks that were actually being sold in commerce with the internet evidence?

[00:09:30] Speaker 02:
Well, I would say two things about that.

[00:09:31] Speaker 02:
One, the board said we don't really give much weight to those because they're not evidence that the marks are in use.

[00:09:39] Speaker 02:
First of all, that's incorrect.

[00:09:41] Speaker 02:
You can look at registrations and applications to see whether people, for example, is this a descriptive term.

[00:09:47] Speaker 02:
is a descriptive design.

[00:09:48] Speaker 02:
Obviously a paw for footwear is highly suggestive.

[00:09:53] Speaker 02:
It suggests agility, strength, traction.

[00:09:57] Speaker 02:
And when you've got 94 people registering marks that have paw prints in them, it suggests something about why all these companies are doing it.

[00:10:05] Speaker 02:
And it's a commonplace thing.

[00:10:10] Speaker 02:
People see this all over the place.

[00:10:12] Speaker 02:
They see this little drawing of a paw all over the place.

[00:10:15] Speaker 03:
It may not be as ubiquitous as... One wonders then how you could expect to have a trademark on the paw.

[00:10:22] Speaker 02:
Well, we may have a problem down the road, but nobody alleged that in this case.

[00:10:25] Speaker 02:
That was not one of the claims in the opposition.

[00:10:27] Speaker 04:
Would you say that there's been some kind of tipping point when it comes to paw prints?

[00:10:32] Speaker 04:
in the clothing class.

[00:10:34] Speaker 02:
I would say so.

[00:10:35] Speaker 04:
I would say that anybody can come forward now and get their paw print because now they're better or for worse flooded with paw print registration.

[00:10:44] Speaker 02:
I think this particular paw print we're flooded with.

[00:10:46] Speaker 02:
I think that's fair to say.

[00:10:47] Speaker 02:
This is totally non-distinctive.

[00:10:49] Speaker 02:
And we showed not only that.

[00:10:51] Speaker 02:
Wow, you just said it's totally non-distinctive.

[00:10:53] Speaker 02:
This particular one, the one that the plaintiff is relying on.

[00:10:56] Speaker 00:
Oh.

[00:10:56] Speaker 00:
It's a childlike one.

[00:10:58] Speaker 00:
Yours is distinctive, you said?

[00:11:00] Speaker 00:
Yours is.

[00:11:00] Speaker 00:
Ours could be, yeah.

[00:11:01] Speaker 00:
Penciful, arbitrary.

[00:11:02] Speaker 00:
You have the claws?

[00:11:02] Speaker 00:
Yes, yes.

[00:11:03] Speaker 00:
Because it's at an angle?

[00:11:05] Speaker 02:
Because it's a more realistic drawing.

[00:11:08] Speaker 02:
And we might have a narrow scope of protection if we tried to go after somebody once we started using it.

[00:11:13] Speaker 02:
But there's no basis for saying that this element of the

[00:11:17] Speaker 02:
plaintiffs, the opposers composite mark is distinctive and that people, remember the board said people might think that my client's mark is the design element of their composite mark.

[00:11:29] Speaker 02:
There's absolutely no evidence that suggests that consumers would ever do that, given how many other paw prints there are.

[00:11:37] Speaker 02:
I just want to talk a little bit about the, and there are differences between the marks.

[00:11:44] Speaker 02:
There's this childlike design.

[00:11:46] Speaker 02:
ours is a more realistic design.

[00:11:48] Speaker 02:
And then I just want to talk about the counterclaim because it's fundamentally unfair for them to oppose a mark based on a registration that they haven't, a mark that they haven't used in 10 years.

[00:12:00] Speaker 04:
The Supreme Court recently issued a case called Hannah Financial about tacking.

[00:12:04] Speaker 04:
Is that what this is about, tacking?

[00:12:06] Speaker 02:
It's not about, no, it's not about tacking.

[00:12:09] Speaker 02:
I would say that it's the standard of review.

[00:12:14] Speaker 04:
Well, yeah, I know that, but in terms of actual reliance on an earlier version of a mark, isn't that what New Millennium is trying to do here?

[00:12:28] Speaker 02:
If they had alleged that, but they didn't allege that.

[00:12:30] Speaker 02:
They never bothered to amend their registration to

[00:12:33] Speaker 04:
Well, their position is they didn't have to, because there's no material alteration.

[00:12:38] Speaker 04:
It's essentially the same commercial impression, i.e.

[00:12:41] Speaker 04:
they can tack back to their original registration.

[00:12:46] Speaker 02:
But they didn't allege that.

[00:12:47] Speaker 02:
Their notice of opposition is based solely on the original registration, which they never amended, and they never alleged any rights in the new mark.

[00:12:55] Speaker 02:
The evidence that they put in was all based on the never-mending claims in the notice of opposition.

[00:13:03] Speaker 02:
that they were relying on the new version.

[00:13:06] Speaker 02:
It's only based on the old version.

[00:13:08] Speaker 04:
I guess you don't want to call it tacking, but in the end, isn't the inquiry the same as tacking?

[00:13:13] Speaker 04:
That is to say, would an ordinary consumer believe that this modern day version of the mark that was registered years ago conveys essentially the same commercial impression?

[00:13:25] Speaker 02:
I would say it does not.

[00:13:26] Speaker 02:
It's a material operation.

[00:13:27] Speaker 04:
Yeah, but the standard is the same.

[00:13:28] Speaker 02:
Yes, it should have been.

[00:13:30] Speaker 02:
Are you talking about for purposes of abandonment?

[00:13:33] Speaker 04:
For purposes of what the Supreme Court did in a case about tacking.

[00:13:39] Speaker 02:
Correct.

[00:13:39] Speaker 02:
All Hanna Financial.

[00:13:40] Speaker 02:
Yes.

[00:13:40] Speaker 04:
They expressed a certain standard for whether you could tack.

[00:13:45] Speaker 02:
Yes.

[00:13:45] Speaker 04:
And that's the same standard of whether New Millennium here abandoned its earlier registered mark.

[00:13:54] Speaker 04:
Isn't it?

[00:13:54] Speaker 04:
Same commercial impression.

[00:13:56] Speaker 02:
Right.

[00:13:57] Speaker 04:
And Hannah Financial of the Supreme Court said, okay, when it comes to trying to figure out whether an ordinary consumer would believe that these two marks have and share the same commercial impression, that is a fact question for the jury.

[00:14:13] Speaker 02:
Correct.

[00:14:13] Speaker 02:
And I'm saying that under any standard of review, this creates a different commercial impression and should have been declared abandoned.

[00:14:24] Speaker 02:
They should have

[00:14:25] Speaker 02:
They should, it should have been republished had they applied to, to amend the mark because it creates a different commercial impression.

[00:14:32] Speaker 02:
They went from this childlike little drawing of a paw to a much more realistic drawing of a paw.

[00:14:38] Speaker 02:
And that should, they should have given people an opportunity to oppose that by republishing it.

[00:14:44] Speaker 02:
And under any standard.

[00:14:45] Speaker 03:
You've just about used all your time.

[00:14:47] Speaker 03:
We'll give you a minute for a puddle.

[00:14:51] Speaker 03:
Mr. Bautista.

[00:14:53] Speaker 01:
I want to focus on two main issues that have been discussed, Mr. Lev, regarding the similarity of the two marks and the evidentiary value of the third-party uses of marks or purported evidentiary value.

[00:15:10] Speaker 01:
First, it appears that Jack Wolfskin is advocating for this per se rule that you cannot compare a design mark and a composite mark consisting of a word or design or several designs

[00:15:23] Speaker 01:
unless the design portion that has an extra element has some sort of, has evidence of secondary meaning or acquired distinctiveness.

[00:15:34] Speaker 01:
In other words, that it's been used in the public by itself such that consumers recognize it independently from the composite mark.

[00:15:44] Speaker 01:
That's actually not true.

[00:15:45] Speaker 01:
There are cases from the TTAB that we cite in Ray Barnhart Permatex where the board has compared

[00:15:52] Speaker 01:
Composite marks and design marks and found that those marks are confusingly similar even though the design portion of the composite mark did not have Secondary meaning or acquired Acquired the interesting thing about these trademark cases is you could almost find any case going in any direction we want they just seem so Severely fact driven, right?

[00:16:15] Speaker 04:
They are very fact driven

[00:16:18] Speaker 01:
And which goes to the standard review then.

[00:16:21] Speaker 01:
We're talking about substantial evidence.

[00:16:23] Speaker 01:
The standard review for substantial evidence isn't that you have insubstantial evidence if you can come to a different conclusion.

[00:16:31] Speaker 01:
It's just whether or not the board had sufficient evidence to come to the conclusion that it did.

[00:16:35] Speaker 04:
What if I read the TTAB's opinion as saying that it didn't really need to give any meaningful weight to the word portion, kill me.

[00:16:48] Speaker 04:
It concluded that companies in very standard, regular ways, including this company, this registrant, split their composite registered marks and promote their brands just through the design.

[00:17:06] Speaker 04:
But that is actually flawed because there's no evidence in the record to support that proposition.

[00:17:13] Speaker 04:
Then isn't there a problem?

[00:17:14] Speaker 04:
There's a fatal defect in the TTAB decision, right?

[00:17:18] Speaker 01:
No, that's not correct.

[00:17:21] Speaker 01:
First, the issue is whether or not the design portion has distinctiveness such that it could be something that compared with another mark and be held likely to be confused.

[00:17:30] Speaker 04:
What if it was something like, kill me smiley face?

[00:17:35] Speaker 04:
Like what the kids today called an emoji.

[00:17:38] Speaker 04:
And then you have this emoji on your shirts and socks and shoes.

[00:17:46] Speaker 04:
I mean, I don't think you would say that that necessarily is going to serve up as a source identifier, right?

[00:17:55] Speaker 01:
You are right, your honor, because there is case law from the board as well as this court's predecessor talking about how ornamental designs to a composite mark you need secondary meaning or acquired evidence for.

[00:18:09] Speaker 01:
but not for marks that are distinctive, and certainly Jack Wolski is not going to argue that a paw print is not a distinctive element in connection with the sale of clothes.

[00:18:20] Speaker 01:
It's not really ornamental.

[00:18:22] Speaker 01:
In fact, this board, and the cases are cited in our brief, is of oil and very swift, as well as the board permit tax has held, that even a background to a composite mark can be distinctive for the purposes

[00:18:37] Speaker 01:
of, for the purposes of likelihood of confusion.

[00:18:40] Speaker 03:
But Mr. Bautista, when one looks at your mark, Kelme stands out.

[00:18:46] Speaker 03:
That's what's dominant.

[00:18:48] Speaker 03:
Why is there a likelihood of confusion?

[00:18:51] Speaker 01:
If you look at, and as Judge Chen had pointed out, Jack Wolfskin's mark can look like a shortened version of our mark.

[00:19:00] Speaker 01:
And I would disagree with Mr. Led's contention that the board did not take into account

[00:19:07] Speaker 01:
the fact that the kelme is the dominant portion of the overall composite mark, they assumed that it was the dominant portion of the mark on page 17 and then said looking at the mark as a whole, they found the marks to be likely to be confused.

[00:19:25] Speaker 04:
But it ultimately rested that finding on its view that the two paw designs were similar and then therefore never really came around and answered for

[00:19:37] Speaker 04:
the kilmain portion, except to the extent that it concluded that there was evidence in the record that your client was using or promoting your mark just by using the paw print and without the word kilmain.

[00:19:52] Speaker 04:
But then when I looked in the record, what I saw were examples.

[00:19:57] Speaker 04:
In fact, the paw print was being used in combination with kilmain.

[00:20:00] Speaker 04:
Sure, the top of the shoe box had just the paw print, but then all the way around the sides,

[00:20:06] Speaker 04:
it said Kelme with the paw print everywhere.

[00:20:10] Speaker 04:
So I didn't really see even a basis to exclude the word Kelme on a theory that I'm not even sure is right, that if you promote your mark by only using the design print, then therefore you can basically minimize and no longer focus on the word portion of the composite.

[00:20:36] Speaker 01:
Okay, well, I would say, first of all, according to the board president, you don't have to show that kind of evidence, but I will point out to some evidence on the record where the paw print, if not used by itself, is certainly the prominent portion of the advertisement or the marketing.

[00:20:54] Speaker 04:
And then I bet I can find things that show, you know, Kelme by itself, the actual word portion as being the real spotlighted part of the composite mark on some of the

[00:21:05] Speaker 01:
I do not disagree with that.

[00:21:06] Speaker 01:
In fact, I would if the board recognized properly that it is a dominant portion of the mark.

[00:21:11] Speaker 01:
However, the point is whether or not, number one, the paw print is distinctive for the purposes of likelihood of diffusion analysis, which it is, and Jeff Wiltons can't contest that because they're applying for that mark.

[00:21:25] Speaker 01:
And second of all, to the extent that it even matters that there's evidence of the record that somehow shows secondary meaning or acquired distinctiveness of that paw print on its own,

[00:21:35] Speaker 01:
There is, there's evidence of shifts on bags, on catalogs, page 439, page 453, page 483, page 489, page 490 for the appendix 500, 502, 503, 503.

[00:21:50] Speaker 01:
Sorry, the point being, and some of these.

[00:21:55] Speaker 01:
The word kill me is right next to all of those.

[00:22:00] Speaker 01:
True, but the, I don't know if they're next to all of them, because on the shoes,

[00:22:04] Speaker 01:
I believe on the side of the shoes, the paw prints are more prominent.

[00:22:07] Speaker 04:
But then the tongue, you'll see the word Kelme or on the heel or on the sole, you'll see Kelme.

[00:22:15] Speaker 01:
As Judge Bryson had talked about, there are marketing campaigns where the name of the brand of the... Because you're not going to call the shoe the paw shoe.

[00:22:25] Speaker 01:
You're going to call it by the brand name.

[00:22:28] Speaker 01:
But that doesn't mean that the symbol by itself does not have meaning.

[00:22:33] Speaker 01:
I think Mr. DeSilvera testified that Nike and Adidas and Kelme all use their symbol by themselves as a corporate logo.

[00:22:46] Speaker 00:
I do think that Nike has a separate registration on the Swoosh.

[00:22:50] Speaker 00:
Do you happen to know for sure?

[00:22:51] Speaker 00:
Because I have that in the back of my head.

[00:22:54] Speaker 00:
And you don't have a separate registration for the Paw, right?

[00:22:57] Speaker 01:
That's correct.

[00:22:58] Speaker 00:
We do not.

[00:22:58] Speaker 00:
But do you happen to know what the case is with Nike?

[00:23:00] Speaker 00:
Because Nike is actually a pretty

[00:23:03] Speaker 00:
close analogy it seems to me to your case setting aside the famous Mark problem but at least for your shoes because that's exactly you have the paw where Nike puts the swoosh on the shoes.

[00:23:16] Speaker 01:
That's right I do not know if Nike has a registration.

[00:23:19] Speaker 01:
I'm not so sure it would necessarily matter but I'm not sure if they do.

[00:23:25] Speaker 00:
If they had a separate registration just for the swoosh?

[00:23:28] Speaker 01:
The registration itself doesn't necessarily determine the distinctive

[00:23:31] Speaker 01:
distinctiveness of the symbol within the composite mark.

[00:23:38] Speaker 01:
With respect to, if I could move on to the third party evidence, the board properly concluded that the evidence of this third party usage of paw prints as neutral based upon the evidence on record, which is virtually zero.

[00:23:58] Speaker 01:
I know that Mr. Lab tries to

[00:24:00] Speaker 04:
I wish you wouldn't say it's virtually zero, because it's closer to something more like 20 or 40 than virtually zero.

[00:24:10] Speaker 01:
Well, fair enough.

[00:24:14] Speaker 01:
Let me say it this way.

[00:24:16] Speaker 01:
Evidence of third party registrations, as well as evidence of internet usage, are very limited in their probative value.

[00:24:26] Speaker 01:
As this court has held, and as the board has held, and even the trademark

[00:24:30] Speaker 01:
manual procedures held, that type of evidence is only probative of what's on their face.

[00:24:38] Speaker 01:
They're not probative of the truth of the matter asserted in them.

[00:24:43] Speaker 01:
And why is that?

[00:24:44] Speaker 01:
Well, first of all, there's the authenticity issue, which apparently the board and the courts have recognized in this internet age that there's got to be some ability to bring that kind of evidence in because of the difficulty with authentication.

[00:24:59] Speaker 01:
There is no way to verify what is on those pages as being the truth of what's in them, sales, let alone extrapolate what that evidence demonstrates, like the volume of sales, who the consumers are, what the trade channels are.

[00:25:18] Speaker 01:
All they show, to use Mr. Lev's examples, are university snapshots or website snapshots from universities or schools

[00:25:29] Speaker 01:
or I think one example is a pet rescue and some usage of paw prints on those screenshots which have no other value other than what is shown on those screenshots.

[00:25:44] Speaker 00:
What significance is it to say that there is

[00:25:52] Speaker 00:
there is usage of the paw print in situations where they serve, the paw prints serve as a secondary source indicator.

[00:26:01] Speaker 01:
Do you repeat that question again?

[00:26:02] Speaker 00:
Yeah.

[00:26:03] Speaker 00:
The board, I think, mentioned in passing that the paw prints, the college t-shirts with Clemson's tiger or whatever it is, are all over the place, but said, well, but they're secondary source indicators.

[00:26:17] Speaker 00:
I paused over that thinking, well, what significance does that have?

[00:26:22] Speaker 00:
Legally, what do you think is the significance of saying that it's only a secondary source indicator?

[00:26:29] Speaker 01:
That was a very interesting comment by the board that also gave me pause.

[00:26:33] Speaker 01:
And I try to put it into context with respect to what the actual evidence is, which is just evidence of these universities,

[00:26:46] Speaker 01:
websites for the pet rescues in these high schools.

[00:26:48] Speaker 00:
Well, the board seemed to be saying that the fact that the pause did not indicate that their association with the college didn't indicate who made the t-shirt.

[00:27:02] Speaker 00:
It was made somewhere in some shop in Indonesia or something.

[00:27:07] Speaker 00:
That gave it less value for purposes of the trademark

[00:27:12] Speaker 00:
analysis and I just wanted you to comment on that observation if that's indeed what the board was saying as you view it.

[00:27:18] Speaker 01:
I don't know if the board, I think the board was saying that proposition, but I don't know if it was talking about what was actually of evidence in the record because if you look at what is of record, the screenshots of the universities and the pet stores or pet rescue and high schoolers, high schools, when you put

[00:27:39] Speaker 01:
that the fact that there are manufacturers' labels also connected with the paw print and the fact that the paw print is clearly associated by the websites and the universities.

[00:27:53] Speaker 01:
I mean, there's no mistaking when you're on Clemson University's website, you are dealing with Clemson and Clemson's paw and the manufacturer that's right next to it.

[00:28:00] Speaker 01:
But that, the dilutive effect of that screen, of that evidence.

[00:28:06] Speaker 01:
there were manufacturer, I'm sorry, I don't know the specific manufacturer.

[00:28:10] Speaker 00:
Nobody does.

[00:28:11] Speaker 00:
That's the thing.

[00:28:12] Speaker 00:
That's their point.

[00:28:13] Speaker 00:
It's not like Nike is saying, this is our shoe.

[00:28:17] Speaker 00:
It's that Clemson is saying, we bought these t-shirts from somewhere else.

[00:28:21] Speaker 00:
You don't care where they were bought.

[00:28:22] Speaker 00:
You don't know where they were bought.

[00:28:23] Speaker 00:
And that isn't going to influence commercial decisions as to purchases from that company.

[00:28:30] Speaker 00:
Maybe it comes to not very much.

[00:28:32] Speaker 00:
I don't know.

[00:28:32] Speaker 00:
But it left me

[00:28:36] Speaker 00:
pondering what the significance of secondary source identifiers is in trademark law because I just, I'm not sure.

[00:28:43] Speaker 01:
I will tell you that in the context of sort of the dispute here, I don't think it's ever been really properly, I don't think it's ever been addressed.

[00:28:54] Speaker 01:
Having said that, in the context of this case, it has very little significance because of the little probative value

[00:29:01] Speaker 01:
of the website screenshots in the first place.

[00:29:04] Speaker 04:
I guess your point is all of these internet snapshots have low probative value because whether it's Clemson or whether it's a small mom and pop shop, each one of them are just one little data point in the cyberspace landscape.

[00:29:22] Speaker 04:
So we can't really know for sure based on this record, the volume of sales and the scale

[00:29:28] Speaker 04:
impact on the ordinary consumer?

[00:29:31] Speaker 04:
Is that your argument?

[00:29:33] Speaker 01:
Yeah, that is correct, Your Honor.

[00:29:35] Speaker 01:
Now, that type of evidence obviously can be supplemented by... Okay, but just getting back to the secondary source question, because I'm kind of curious about that too.

[00:29:46] Speaker 04:
It did appear that the TTAB was willing to give it some weight, but it said something like the weight is somewhat reduced given that the fact that it's

[00:29:57] Speaker 04:
It's some kind of secondary source.

[00:29:59] Speaker 04:
These t-shirts aren't necessarily being made by Clemson.

[00:30:03] Speaker 04:
They might be made by, I don't know, Fruit of the Loom or something like that.

[00:30:08] Speaker 04:
And so therefore, it somehow has a diminished weight.

[00:30:12] Speaker 04:
But I guess what I don't understand is why is that so if when the consuming public out there sees these shirts with these paw prints that clearly designate Clemson, they're just

[00:30:25] Speaker 04:
getting more and more conditioned to the fact that there's lots of paw print designs out there on t-shirts or shorts or warm-up jackets.

[00:30:37] Speaker 04:
So maybe that is why it is relevant to trying to understand whether your paw print is necessarily something that's going to be likely confused by the public with the applicant's paw print.

[00:30:57] Speaker 01:
I will say this.

[00:31:00] Speaker 01:
We don't know the answer to that question because there's no evidence of record beyond the screenshots as to how those shirts are actually being sold, who sells them, who buys them, who even goes to the website, whether or not, and most importantly, whether or not that paw print actually even intersects with our print such that it would have some sort of dilutive effect.

[00:31:23] Speaker 01:
The evidence, to the extent that the board says it had a reduced

[00:31:28] Speaker 01:
effect, it can only reduce the evidentiary value of those screenshots from its maximum value, which is not very probative.

[00:31:40] Speaker 03:
Thank you, Mr. Bautista.

[00:31:43] Speaker 03:
Mr. Lev, we'll give you a few minutes for battle time.

[00:31:49] Speaker 02:
Yeah, I'll just be brief.

[00:31:50] Speaker 02:
On the question of whether they use the paw print by itself, the best evidence is Mr. Dussall.

[00:31:54] Speaker 02:
There is own testimony to his deposition.

[00:31:57] Speaker 02:
399 of the appendix.

[00:32:00] Speaker 02:
Every product that we make has our brand, logo, tag, everything.

[00:32:04] Speaker 02:
And that brand, logo, tag, everything includes the Kelme name and the paw in every single thing that we do.

[00:32:11] Speaker 02:
Everything includes the Kelme name and the paw in every single thing that we do.

[00:32:15] Speaker 02:
That disposes the argument that they use the paw separately.

[00:32:18] Speaker 02:
And their own reply brief in the TTAB said, the Kelme word element and the paw print element have always been used together.

[00:32:28] Speaker 04:
So there's a pair of socks in the record that just show the paw print though.

[00:32:34] Speaker 02:
Are you familiar with those socks?

[00:32:36] Speaker 02:
Some of them, if you look closely, there's the paw, the Kelmay name is on the, here's one with the sock with the Kelmays on the toe.

[00:32:47] Speaker 02:
There's another one with the Kelmays on the back.

[00:32:50] Speaker 04:
I'm looking at A533.

[00:32:51] Speaker 02:
A533.

[00:32:59] Speaker 02:
We can't see.

[00:33:03] Speaker 02:
There's a very poor reproduction.

[00:33:06] Speaker 02:
I don't know what's on the other side of the saw.

[00:33:09] Speaker 02:
I mean, that's a part of the problem here is this is something that they put in their brief.

[00:33:16] Speaker 00:
Well, on the shoe on 480, there's probably, I would guess, the word Kelme appears somewhere on the shoe.

[00:33:25] Speaker 00:
It appears on the bottom, it seems, but the paw print is very

[00:33:29] Speaker 00:
distinctive on the side of the shoe.

[00:33:31] Speaker 02:
Yeah, I don't know whether I have 480 here.

[00:33:34] Speaker 02:
If you have the joint appendix.

[00:33:37] Speaker 00:
Item one.

[00:33:49] Speaker 02:
Sorry.

[00:33:50] Speaker 02:
Mr. Lev, let's conclude your argument.

[00:33:52] Speaker 02:
It's inside the shoe.

[00:33:54] Speaker 02:
It's right inside the shoe.

[00:33:56] Speaker 02:
but much less prominent.

[00:33:57] Speaker 02:
I'm sure it's on the box and it's on the label.

[00:33:59] Speaker 02:
Just two other points.

[00:34:02] Speaker 02:
On the issue of secondary source, there's no evidence that the public compartmentalizes these things.

[00:34:07] Speaker 02:
They see one thing on a shirt that's sold by Clemson and they say, oh, that's secondary source.

[00:34:15] Speaker 02:
They see another thing that's clearly a trademark and they say, oh, that's a trademark.

[00:34:20] Speaker 02:
The point is that the public sees this little paw design all over the place.

[00:34:24] Speaker 02:
It's ubiquitous.

[00:34:25] Speaker 02:
It has no distinctiveness.

[00:34:26] Speaker 02:
It's what they're trying to say is that if you've got a brand name like Kelme, anything you put with it in a registration can't be used by anybody else, whether it's a square, a circle, a heart, a smiley face.

[00:34:40] Speaker 02:
That's not the law.

[00:34:41] Speaker 02:
They have to show this is a distinctive element, which they haven't done.

[00:34:44] Speaker 02:
And that's the only thing the board compared.

[00:34:48] Speaker 02:
Thank you.