[00:00:10] Speaker 00:
The last case to be argued this morning is 14-1497.

[00:00:16] Speaker 00:
This is our Post International Limited versus United States Postal Service.

[00:00:40] Speaker 00:
Whenever you're ready, yeah, you reserve five minutes.

[00:00:46] Speaker 02:
Is that right?

[00:00:47] Speaker 02:
Correct to rebut and they have a cross appeal.

[00:00:51] Speaker 02:
Oh That's right.

[00:00:53] Speaker 02:
Okay.

[00:00:54] Speaker 02:
So thank you May please the court I would like to start with the following scenario When you receive a letter for another hard copy document

[00:01:07] Speaker 02:
you would have stopped to consider how did that document get to my desk.

[00:01:12] Speaker 02:
You would think of Federal Express, you would think of UPS, you would think of the Postal Service, and maybe some other companies.

[00:01:22] Speaker 02:
You receive an electronic message, an email, or some other type of electronic transmittal, and you stop to think of how that document, that electronic document came to my computer screen or other device.

[00:01:36] Speaker 02:
Microsoft, think of Google and AOL and maybe Yahoo and a bunch of other companies.

[00:01:43] Speaker 02:
What you wouldn't think of is the Postal Service.

[00:01:47] Speaker 02:
That in our view is the essence of this case.

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Is there any context or situation where the commercial transmission of an electronic message would come from the Postal Service?

[00:02:03] Speaker 02:
the answer to that is no, and there's no evidence that the answer to that is anything other than no, then there's no likelihood of confusion, no possible confusion, in fact.

[00:02:15] Speaker 00:
I mean, your identified services, you know, invokes the Postal Services service of registered mail.

[00:02:23] Speaker 00:
Correct.

[00:02:24] Speaker 00:
I mean, the whole point of your using the term registered email is to

[00:02:30] Speaker 00:
demonstrate that what you're doing is an extension of what the Post Office has been doing for over 150 years.

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Not an extension of what they're doing.

[00:02:42] Speaker 00:
Providing... But that's how consumers look at anything when you add the little E in front of some pre-existing service.

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It's an understanding, I mean this is kind of common sense, that what you've done is taken a brick and mortar service

[00:03:00] Speaker 00:
and moved it into cyberspace, right?

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And now we've had registered mail going on for a long time, and now you have registered email.

[00:03:11] Speaker 02:
Correct.

[00:03:12] Speaker 02:
And if the postal service were in that space in any manner, it's not just the cyber world, it's the electronic message transmission world, because that's what the application also says.

[00:03:25] Speaker 02:
You have to look at the specific terms of the application

[00:03:28] Speaker 02:
And the analogy I would give, the kind of revolution that we're talking about from hard copy to electronic message transmission at the turn of the 19th to 20th century, horse and buggy to automobile.

[00:03:45] Speaker 02:
Huge revolution, I think somewhat analogous.

[00:03:49] Speaker 02:
If I were the Ford Motor Company and I wanted to compete with the horse delivery services

[00:03:56] Speaker 02:
And I said, I can provide the same level of service, same quality in an entirely different way.

[00:04:09] Speaker 02:
And I take a term, let's say their product was called, we called it the Pony Delivery Service.

[00:04:19] Speaker 02:
And if I changed it to a Pony, A for Automotive, and no one had any reason to believe

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It was the same company because they were horses, not machines.

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That's not infringement and it's not likely to confuse.

[00:04:34] Speaker 01:
But it seems to me the questionable part of the questionable premise to your example is that no one would have any reason to believe it's the same.

[00:04:43] Speaker 01:
If, for example, I had the buggy service and it was Bryson's and it was really well known all around the country that Bryson's buggies are better than everybody else's buggies.

[00:04:55] Speaker 01:
And you came along and decided to start an automobile service to do the same kind of delivery, and you called it the A. Bryson.

[00:05:06] Speaker 01:
People are going to assume that this is either licensed by or somehow affiliated with Bryson, or at least there's a good chance of that under the circumstances.

[00:05:16] Speaker 01:
And that's where you have likelihood of confusion.

[00:05:18] Speaker 01:
That's the problem I think that you have in this case, that people

[00:05:22] Speaker 01:
may be wrong in thinking that the Postal Service is now into this or somehow blessing this, but that's an assumption that will flow from the use of the term registered mail.

[00:05:31] Speaker 01:
To me, that's the problem that I see with your case.

[00:05:35] Speaker 02:
Well, but the only evidence of potential confusion in this context is that there isn't any.

[00:05:43] Speaker 02:
And what I mean by that is, first of all, the Postal Service is forbidden, legally forbidden, from entering into that space.

[00:05:50] Speaker 01:
from doing that.

[00:05:51] Speaker 01:
But if you asked a thousand people on the street, and you were somewhere other than Washington where you'd find a hundred lawyers out of that thousand, if you asked a thousand people on the street, is the postal service forbidden by law from engaging in electronic communication services?

[00:06:08] Speaker 01:
I'm guessing you wouldn't find three that would know the answer.

[00:06:12] Speaker 02:
But if you asked the same thousand people, does this postal service provide the commercial delivery of electronic messages?

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I don't think you'd find a single person who'd say yes.

[00:06:22] Speaker 01:
Except the person that had looked at your website and said, yeah, I think so, because I saw e-registered mail.

[00:06:29] Speaker 02:
But registered email.

[00:06:32] Speaker 02:
Not e-registered mail, it's registered email.

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And that is a difference, because adding the e to mail is transformative.

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It's not even like all the other, the e-books.

[00:06:49] Speaker 00:
Why did you use the term registered email?

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You could have done something like secure email or our post email or something like that.

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Why did you go with registered email?

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Because the public knows that registered mail provides security.

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But this is in the electronic world.

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You get some kind of proof of delivery receipt.

[00:07:20] Speaker 02:
Correct.

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A physical document from the post office.

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That's what you get.

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And you have to do everything physically to get that.

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They don't send those by email?

[00:07:30] Speaker 02:
The final step in the process.

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If you want to send a registered email and get that proof of delivery by email, you have to physically take yourself to the post office.

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deliver to a Postal Service employee physical documents.

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You have to physically pay.

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You have to physically fill out the form.

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The Postal Service has to physically transport the documents.

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They have to get the various registration signatures physically and only then will they transmit an email to you saying it's been delivered.

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So no one who uses registered mail would be confused.

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No one who uses the ARPOS service

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would be confused because if you use the R-post service, you know you're not contracting with a post office.

[00:08:15] Speaker 02:
So you've got this hypothetical consumer who might have seen something that says registered email.

[00:08:24] Speaker 02:
Why would that person think it's the post office?

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It's not accompanied with other indicia of the post office.

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It doesn't have that stylized eagle.

[00:08:33] Speaker 02:
It doesn't say the postal service or USPS anywhere.

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It doesn't have the shade of blue that we all associate.

[00:08:42] Speaker 02:
Every mail truck and every mailbox and the letter carriers all have that same shade of blue.

[00:08:48] Speaker 02:
So it doesn't have any indicia of being with the Postal Service.

[00:08:53] Speaker 02:
The whole point of the Postal Service argument is because there's this one letter difference, consumers are likely to be confused.

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And that one letter difference

[00:09:07] Speaker 02:
enormous because it changes the word mail to email and changing the word mail to email not only is it a recognized word you look in the dictionaries and you'll find email all the other e-words e-file e-book e-fares etc etc except in slang dictionaries you won't find those words there you will find email it is a word a separate word and points away from the post-its

[00:09:37] Speaker 02:
So anyone who sees the word email, whether it says registered or any other term that might be similar to the postal service, is not going to be confused.

[00:09:47] Speaker 02:
And we're touching on the first of the DuPont factors that the board found.

[00:09:52] Speaker 02:
The second one, similarity of services, the board ignored the application, which requires them to consider the application itself, which says,

[00:10:06] Speaker 02:
delivery of messages by electronic transmission.

[00:10:11] Speaker 00:
That's email, but you know this is registered email and this is more about the transmission of mail electronically in a secure way with proof of delivery, right?

[00:10:25] Speaker 02:
Transmission of mail electronically.

[00:10:28] Speaker 00:
So I mean that's why I think the trademark board was trying to say the purpose

[00:10:34] Speaker 00:
of your service and the post office's registered mail services, ultimately pretty similar because it's all about transporting some kind of message or document with security and proof of delivery.

[00:10:50] Speaker 02:
Yes, but that ignores the application, which also limits it to electronic message transmission, which the postal service doesn't do.

[00:11:01] Speaker 02:
If you want to send an email to someone, no matter what kinds of bells and whistles you want to put on it, you're not going to go to USPS.com in order to do that.

[00:11:16] Speaker 02:
That's the distinction.

[00:11:18] Speaker 02:
You're not going to go to a postal service site.

[00:11:20] Speaker 02:
You're not going to think there's any way you can transmit an electronic message using the postal service.

[00:11:29] Speaker 02:
That's obviously the heart

[00:11:31] Speaker 02:
of our argument.

[00:11:34] Speaker 02:
The distinction between mail and email between brick and mortar world and the electronic world is a serious one and the fact, we haven't even gotten third party registrations and boards reliance on third party registrations, but the fact that other companies might have registered marks

[00:12:00] Speaker 02:
for in both hard copy in physical and electronic fields doesn't prove that they're in commercial use, doesn't prove that those products, that anyone knows about those products.

[00:12:16] Speaker 02:
This court's precedent on third party registration evidence for purposes of likelihood of confusion seems to me uniform and against

[00:12:30] Speaker 02:
What the board did, what the board said was, well, it shows that these kinds of services could, in theory, emanate from the same source.

[00:12:43] Speaker 00:
Benz V, you're into your rebuttal.

[00:12:45] Speaker 00:
Do you want to save the remainder of it?

[00:12:47] Speaker 00:
You can keep going if you like.

[00:12:48] Speaker 02:
Yes.

[00:12:49] Speaker 02:
I will save the remainder.

[00:12:51] Speaker 00:
OK.

[00:12:51] Speaker 00:
Thank you.

[00:12:53] Speaker 00:
All right.

[00:12:54] Speaker 00:
Let's hear from Ms.

[00:12:56] Speaker 00:
Demarshi.

[00:12:57] Speaker 00:
OK.

[00:12:58] Speaker 00:
Thank you.

[00:13:00] Speaker 00:
You've reserved three minutes, so you're going to talk about 2D confusion and descriptiveness, right?

[00:13:07] Speaker 03:
Yes.

[00:13:08] Speaker 03:
Okay.

[00:13:08] Speaker 03:
And I've reserved only as to the cross-appeal issue.

[00:13:10] Speaker 00:
Right.

[00:13:13] Speaker 03:
Our posts' contentions before this Court, both in their briefs and as you've heard this morning, rest entirely on the idea that there is an impermeable wall of separation between electronic communications and hard copy communications, such that a reasonable consumer

[00:13:29] Speaker 03:
would never be confused.

[00:13:32] Speaker 03:
And in one sense, our post is right.

[00:13:35] Speaker 03:
No one is ever going to confuse an email for a hard copy piece of mail.

[00:13:40] Speaker 03:
But that is not the fundamental inquiry under the Lanham Act regarding likelihood of confusion.

[00:13:45] Speaker 03:
The Lanham Act is not concerned with confusion of goods.

[00:13:48] Speaker 03:
It's concerned with confusion of source.

[00:13:52] Speaker 03:
And so the question is, can two different goods, maybe even really different goods,

[00:13:59] Speaker 03:
be perceived by the consumers and their overall commercial impression as they encounter them in the market as emanating from the same brand.

[00:14:06] Speaker 03:
And we know in answer to Judge Chen's question about why did our post pick this name rather than another name, our post told the Postal Service that the reason that it was picking this name, the reason it wanted registered email rather than secured email or our post email was because it wanted

[00:14:24] Speaker 03:
to trade on the public trust of the postal service brand and to do so not by calling it USPS email but by calling it registered email because our post thought the word registered in the public mind meant postal service, I trust the postal service, it's secure.

[00:14:47] Speaker 03:
That's the quintessential example of source confusion.

[00:14:53] Speaker 03:
And that's the factual findings that the board made.

[00:14:55] Speaker 03:
And really, this is a case about factual findings of the board.

[00:14:59] Speaker 03:
Because the board looked at exactly the same information and argument that you've been hearing about today.

[00:15:03] Speaker 03:
And the board said, we think the market is for transmitting secure messages, that people have a choice between doing it electronically, doing it in hard copy, maybe doing it in both.

[00:15:17] Speaker 03:
and that this is all actually directed at the same market.

[00:15:21] Speaker 03:
And so we're going to make a factual finding of likelihood and confusion based on the evidence that these are not identical than at least overlapping markets.

[00:15:31] Speaker 03:
And of course, under the substantial evidence standard, if any reasonable person could reach that conclusion from the evidence, then it is to be affirmed.

[00:15:37] Speaker 00:
Can you explain the usage of the third party registrations in this case?

[00:15:42] Speaker 00:
Apparently, we have case law that says

[00:15:47] Speaker 00:
you're not supposed to rely on those third-party registrations to prove actual use, and yet you were citing something else that says, well, maybe they can't be used for actual use, but they can still somehow be used to be probative to prove something that's different than actual use, but I guess

[00:16:14] Speaker 00:
I'm a little confused on how the law works.

[00:16:17] Speaker 00:
Can you explain it to me?

[00:16:18] Speaker 03:
And the law is not quite as black and white as third party registrations are never usable.

[00:16:24] Speaker 03:
There are multiple cases in which the board and this court have looked at evidence of what third parties do in the same market to tell us something about how consumers perceive goods.

[00:16:37] Speaker 00:
Right, what they're actually doing in commerce.

[00:16:39] Speaker 00:
What those third parties are actually doing in commerce.

[00:16:41] Speaker 03:
Not always what they're actually doing in commerce.

[00:16:43] Speaker 03:
The tectronics case is an interesting one in this regard.

[00:16:49] Speaker 03:
It's tectronics versus dactronics.

[00:16:51] Speaker 03:
And the issue was, what does that suffix mean?

[00:16:55] Speaker 03:
Does that, like E to us means the virtual version of brick and mortar,

[00:17:01] Speaker 03:
the case was about whether adding tronic or tronics at the end of a word indicates this is the electronic version of something.

[00:17:08] Speaker 03:
And in that case, this court's predecessor said that third-party registrations provide some evidence that the common understanding of those suffixes is electronic.

[00:17:19] Speaker 03:
They looked at a bunch of registrations that used the same suffix for electronic products, and they analogized it to looking at a dictionary.

[00:17:27] Speaker 03:
It's important to recognize, though, that

[00:17:30] Speaker 03:
There is not only evidence in this record of third party registrations being in both markets.

[00:17:38] Speaker 03:
There is evidence of the Postal Service doing things that relate to the market for electronic message transmission.

[00:17:45] Speaker 03:
In fact, exactly the same way our post does.

[00:17:48] Speaker 03:
You heard this morning that the Postal Service, you'd never think you were getting email from the Postal Service because the Postal Service doesn't send email.

[00:17:59] Speaker 03:
R-post doesn't send email either.

[00:18:02] Speaker 03:
R-post's big product advantage, and you'll find this in the record, Appendix Volume 1 at page 420, is that it provides an add-on that adds on to anybody's email account.

[00:18:13] Speaker 03:
So you can have a Yahoo account, you can have an AOL account, you can sign up with R-post and get them to essentially postmark your message on its way through cyberspace so that you can get a receipt and party on the other end can tell it wasn't altered.

[00:18:26] Speaker 03:
Well, the postal service, electronic postmark service, can be used in exactly the same way.

[00:18:32] Speaker 03:
So we have that record evidence.

[00:18:34] Speaker 03:
It's not a third party registration that the postal service operates in this manner.

[00:18:38] Speaker 03:
There's also a newspaper article in the record about UPS offering an email product that is actual usage.

[00:18:49] Speaker 03:
It's a computer world newspaper article, I think.

[00:18:53] Speaker 03:
So the third party registrations

[00:18:56] Speaker 03:
are relevant.

[00:18:57] Speaker 03:
They're relevant for a fairly limited purpose of showing that 30 some odd other people don't think these are two markets because they tried to register something to use it in both markets.

[00:19:08] Speaker 03:
It's a small factor.

[00:19:09] Speaker 03:
It's not the only evidence supporting the conclusion that these are, if not the same, then at least overlapping.

[00:19:17] Speaker 03:
With regard to the cross appeal, I'm happy to discuss the same factor.

[00:19:23] Speaker 03:
the court would like to do so.

[00:19:24] Speaker 03:
The importance there, of course, is that it's just an additional factor in supportive inference.

[00:19:29] Speaker 01:
But I would like to... Therefore, not really an appropriate cross-appeal, right?

[00:19:34] Speaker 03:
Because we had an appropriate cross-appeal, we didn't want to be accused of waiving anything, so we tried to be careful about explaining if that was the only reason we were cross-appealing it.

[00:19:43] Speaker 03:
The actual cross-appeal issue is

[00:19:47] Speaker 03:
is with regard to the registered receipt and return receipt marks, and that's the descriptiveness issue.

[00:19:55] Speaker 00:
In that regard, our post, what our post registered... Did you argue that there was a likelihood of confusion with those marks too?

[00:20:04] Speaker 00:
What, and why didn't you if you didn't?

[00:20:07] Speaker 03:
My understanding is that both parties agree that just the words return receipt are not sufficiently, are descriptive and not.

[00:20:17] Speaker 03:
trademarkable.

[00:20:18] Speaker 03:
So we are trying to assert that.

[00:20:21] Speaker 03:
They're trying to assert that they've trademarked it just by adding punctuation around the initial r, and that has two problems for them.

[00:20:28] Speaker 03:
One is the case law, and here I'm thinking vanilla, gorilla, and lighthouse that say just adding punctuation doesn't take something descriptive and make it distinctive.

[00:20:39] Speaker 03:
And their other problem, of course, is that the punctuation they picked isn't random.

[00:20:42] Speaker 03:
It is the punctuation that is

[00:20:45] Speaker 03:
one of the couple of ways in which you can use their service.

[00:20:48] Speaker 03:
And so that's the functionality case law that says someone who's knowledgeable about your service will immediately see that and think of that as distinctive of the functionality of your service.

[00:20:59] Speaker 03:
And it's certainly, it's even part of their patent that that's actually one of the ways in which you invoke a service.

[00:21:07] Speaker 01:
But there are multiple ways that you could invoke that service if you were another provider.

[00:21:11] Speaker 01:
I mean, you're not being foreclosed, right, from any consensus.

[00:21:19] Speaker 01:
in terms of its functionality.

[00:21:21] Speaker 01:
Certainly.

[00:21:23] Speaker 03:
Really, it's the role of punctuation in making a otherwise descriptive mark distinctive that's much more important.

[00:21:30] Speaker 01:
Well, I suppose Yahoo would still object if somebody came up with Yahoo question mark as opposed to Yahoo exclamation point.

[00:21:39] Speaker 01:
But I would think at some point punctuation starts to make a mark distinctive.

[00:21:49] Speaker 01:
It could be just a parenthesis, maybe not a comma here, a hyphen here.

[00:21:56] Speaker 01:
You couldn't say Coca-Cola is trademark registered for the hyphen.

[00:22:03] Speaker 01:
But if you wrote Coca-Cola with no hyphen, that'd be fine.

[00:22:06] Speaker 01:
But still, it does seem to be extreme to say that all punctuation is irrelevant.

[00:22:15] Speaker 03:
And what this court has said, and vanilla gorilla is really the best case for this, is that punctuation that doesn't really change how we perceive or would speak the mark is meaningful.

[00:22:26] Speaker 03:
So vanilla gorilla is the 30-inch car wheel rim case, you know, the decorative rims that people put on their cars.

[00:22:32] Speaker 03:
And what they tried to register was a mark for 3-0 s.

[00:22:40] Speaker 03:
which the court looked at and said, somebody's going to look at that and say, 3 0s or 30s, both of which are ways to refer to the 30-inch car wheel rims with which you intend to use this.

[00:22:51] Speaker 03:
Just the punctuation that doesn't change the way that we would pronounce it is not sufficient to reach the level of efficiency.

[00:22:59] Speaker 00:
But the TTAB here said this is kind of an unusual use of the parenthesis.

[00:23:08] Speaker 00:
unconventional, right?

[00:23:09] Speaker 00:
We're now outside the convention.

[00:23:11] Speaker 00:
Now we're putting a parenthesis around the R, which immediately alerts the reader that there's something different going on here.

[00:23:22] Speaker 00:
Maybe, is that a typo, or is that intentional?

[00:23:25] Speaker 00:
And if it's intentional, what's going on there?

[00:23:28] Speaker 03:
And the hard part with that analysis is 3 dash 0 apostrophe S is not the way that we write 30s.

[00:23:38] Speaker 03:
But we would speak it that way.

[00:23:39] Speaker 03:
So it doesn't square with the vanilla gorilla analysis of that mark.

[00:23:45] Speaker 03:
And then you run right into functionality, which is the only thing that that distinctive punctuation does.

[00:23:50] Speaker 03:
It's not fanciful punctuation.

[00:23:52] Speaker 03:
It's functional punctuation.

[00:23:54] Speaker 03:
And the functionality case law says, if someone who's familiar with your product would immediately have called to mind the functionality of your product by the mark, then that doesn't solve your need for distinctiveness.

[00:24:09] Speaker 01:
I have about... They could have the functionality that would be performed.

[00:24:12] Speaker 01:
They could set it up so that the functionality would be performed by, for example, asterisk R asterisk.

[00:24:19] Speaker 01:
They could.

[00:24:20] Speaker 01:
And you'd have, I guess, the same objection if, in fact, that was their mark and that was their function?

[00:24:25] Speaker 01:
Yes.

[00:24:27] Speaker 00:
But I guess the point is that a registration of this particular mark or a turn receipt with the R surrounded by parentheses, it wouldn't exclude someone else

[00:24:39] Speaker 00:
from doing something like return receipt with, I don't know, parentheses around the T at the end of receipt.

[00:24:48] Speaker 03:
Or preclude the Postal Service from continuing to use the terms registered receipt and returned receipt without any punctuation as it has done for 100 plus years.

[00:24:58] Speaker 03:
Right.

[00:24:58] Speaker 00:
Because they've disclaimed those words, right?

[00:25:01] Speaker 00:
They've disclaimed the term receipt, registered receipt.

[00:25:05] Speaker 00:
And so it all really, for them,

[00:25:08] Speaker 00:
the protection boils down to that first R with the parentheses around it.

[00:25:13] Speaker 03:
And the vanilla gorilla 30s case and the lighthouse case, which is Caesar dressing under the mark Caesar Caesar, tell us that just adding that punctuation is insufficient to meet the standard for registrability.

[00:25:27] Speaker 03:
I'm running very close to the amount of time I have reserved.

[00:25:29] Speaker 03:
I'm happy to answer additional questions.

[00:25:32] Speaker 00:
Okay, thank you.

[00:25:33] Speaker 00:
Let's hear from Ben's view.

[00:25:38] Speaker 02:
Thank you, Your Honor.

[00:25:39] Speaker 02:
Very briefly on the descriptiveness, the R-Post got a trademark for paren-R close paren.

[00:25:49] Speaker 02:
This is a branding issue, and they're consciously branding their products with that mark as part of the brand.

[00:25:57] Speaker 02:
That takes it out of the merely descriptiveness.

[00:26:00] Speaker 00:
uh... category and and the functionality they could explain the what is disclaimer mean i think i understand it but i just want to understand your understanding of what happens when what is the trademark applicant giving up and what is the public yet when trademark applicant does a disclaimer uh... what the trademark applicant gives up is the right to claim that anything other than the exact

[00:26:30] Speaker 02:
formulation, as shown in the application, is what they're claiming to be protectable.

[00:26:38] Speaker 00:
So... So if someone else, some consumer was, or not consumer, competitor, was using return receipt exclamation point, you wouldn't be, would you be able to go after someone like that with your return receipt registration with the parenthesis around the R?

[00:26:53] Speaker 02:
I don't think so, but if they did

[00:26:57] Speaker 02:
our close paren return receipt and added the exclamation point, perhaps we would, because then you get into how distinctive it is and how much it does the exclamation point, how significant that would be.

[00:27:11] Speaker 02:
So, without the parens, absolutely.

[00:27:16] Speaker 00:
I guess what bothers me about this disclaimer practice is could someone get a

[00:27:21] Speaker 00:
registration for the word Disneyland with the D surrounded by parenthesis and then disclaim Disneyland and say, now I want to get a, you know, to sell sneakers.

[00:27:31] Speaker 00:
I mean, does that make sense?

[00:27:34] Speaker 02:
Uh, yeah.

[00:27:34] Speaker 02:
And I'm sure the Walt Disney company would be here before he was, they'd lost it.

[00:27:41] Speaker 02:
Um, you know, it may well depend on what the products are.

[00:27:46] Speaker 02:
Someone like a Disney is sort of everywhere because one of the issues is where

[00:27:51] Speaker 02:
the old party, the analog to the Postal Service, what business are they in?

[00:27:59] Speaker 02:
Is it something they can move into?

[00:28:01] Speaker 02:
If it's, you know, the Lexus Lexus case, the car and the legal services.

[00:28:12] Speaker 02:
And I don't remember which one was first, but one sued the other.

[00:28:17] Speaker 02:
And the ultimate conclusion was because the one couldn't, there's no plausible basis by which the former owner would be moving into the business of the new owner, no one would be confused.

[00:28:31] Speaker 02:
That's part of our argument here on likelihood of confusion.

[00:28:35] Speaker 02:
Postal service, you know, council mentioned there's some news article about USPS in an email type of service.

[00:28:45] Speaker 02:
Yes.

[00:28:46] Speaker 02:
before 2006, it could have and it made all sorts of efforts to go into that business.

[00:28:53] Speaker 02:
And the Presidential Commission issued its report in 2003 and one of the quotes we quoted was, you know, no one knows because then at that point, Postal Service had made all these efforts.

[00:29:07] Speaker 02:
They called them dubious forays and said no one knows the Postal Service is even in this business or trying to be in this business.

[00:29:16] Speaker 02:
And that's, in our view, a significant reason why no one would think that something that has email in the word, in the name, whether it's registered or, you know, they have a certified email, they have other email, I mean, they have certified mail, they have other products that, you know, first-class mail.

[00:29:37] Speaker 02:
If you sell something that's called first-class email, is anyone going to be confused that that's the Postal Service?

[00:29:46] Speaker 02:
The email is transformative.

[00:29:49] Speaker 02:
It changes.

[00:29:50] Speaker 02:
It's not just saying it's the electronic version, but it's the version that the postal service doesn't give you.

[00:30:01] Speaker 02:
That's the point.

[00:30:02] Speaker 02:
And that's why there's no likelihood of confusion.

[00:30:10] Speaker 00:
Very briefly, I'm out of time.

[00:30:14] Speaker 00:
No, you can say a couple sentences.

[00:30:16] Speaker 02:
Okay.

[00:30:16] Speaker 02:
On third party registrations, the Tektronik case isn't anything like this case and what the board did.

[00:30:23] Speaker 02:
What the board did here is say these third party registrations show... I'm sorry.

[00:30:31] Speaker 00:
I meant if you had anything really quick to say about the cross appeal.

[00:30:35] Speaker 00:
It's in our brief.

[00:30:36] Speaker 00:
Okay.

[00:30:36] Speaker 00:
Thank you.

[00:30:42] Speaker 03:
Just one point, and that is, as set forth at length in our brief, we disagree with Mr. Bensey's characterization of what the Postal Service is and isn't allowed to do in the electronic realm.

[00:30:54] Speaker 00:
And so does... Did you just talk about the cross appeal?

[00:30:56] Speaker 03:
Oh, I'm sorry.

[00:30:57] Speaker 03:
I thought he was saying that was relevant to your arguments on the cross appeal.

[00:31:01] Speaker 03:
That's the only reason I'm mentioning it.

[00:31:03] Speaker 03:
If it's not relevant to the cross appeal, then I will rest on my briefing on that point, and I have nothing further.

[00:31:10] Speaker 00:
Okay, thank you.

[00:31:11] Speaker 00:
The case is submitted.