[00:00:28] Speaker 01: Okay, the next argued case is number 15, 1976, Alley Against Innovation Law Group Limited. [00:00:35] Speaker 01: Mr. Alley. [00:00:38] Speaker 04: Good morning, Your Honors, and may it please the Court. [00:00:41] Speaker 04: My name is Ryan Alley. [00:00:42] Speaker 04: I am the applicant appellant here. [00:00:45] Speaker 04: Your Honors, this Court should reverse the Board's likelihood of confusion determination. [00:00:50] Speaker 04: If the Board committed error in the Jack Wolfskin and Juice Generation cases decided just this year, [00:00:56] Speaker 04: then the board certainly committed an error here, just looking at the facts between these cases and the case at bar. [00:01:02] Speaker 04: We can see this in the first Dupont factor particularly, comparing the marks for similarities and dissimilarities. [00:01:08] Speaker 04: There are two legal errors that the board tried. [00:01:11] Speaker 02: Patemark cases are very fact specific. [00:01:16] Speaker 02: And here, what you want to register is really the same idea and just the reverse of the words from the registered mark. [00:01:26] Speaker 04: Well, Your Honor, we submit that trademark cases are very fact dependent. [00:01:30] Speaker 04: And that's why, indeed, we think the facts are very comparable between the Jack Wolfskin and Jews generation cases. [00:01:36] Speaker 04: And certainly, Your Honor is correct that at some level, you can say these marks do say the same thing. [00:01:42] Speaker 04: And where they do say the same thing, they are descriptive. [00:01:45] Speaker 04: They both describe what intellectual property lawyers do. [00:01:48] Speaker 04: They take ideas and turn them into assets for their clients. [00:01:52] Speaker 04: That cannot be a basis for confusion. [00:01:54] Speaker 04: This court reiterated that in Jack Wolf, Skin, and Juice Generation. [00:01:57] Speaker 04: At some point, every mark that is suggestive can be abstracted to say, oh, you're really saying the same thing. [00:02:04] Speaker 04: But that cannot be a basis for likelihood of confusion. [00:02:07] Speaker 04: And primarily, the board, in its consideration under the first DuPont factor, never went through that analysis. [00:02:14] Speaker 04: There's no recognition by the board that these marks using asset and idea are both very common and even worse than Jack Wolf, Skin, and Juice Generation. [00:02:23] Speaker 04: are descriptive of the services at issue. [00:02:26] Speaker 04: So really, we think that there are two areas that merit reversal here versus the dissection out of ideas and assets in order to find some similarity between the mark. [00:02:37] Speaker 04: And the second, worse than Jack Wolfskin and Jews Generation, is the failure to discount in the analysis any recognition of how commonplace these words are and how they describe the services at issue. [00:02:50] Speaker 04: I'd like to go into these two issues in a little more detail. [00:02:54] Speaker 04: On the dissection issue, we see the board's decision spans all two paragraphs looking at the similarities and dissimilarities of the mark. [00:03:04] Speaker 04: In fact, they only quote the terms asset and idea in the marks. [00:03:08] Speaker 04: There's no quoting of building or transforming the omission of the word business in applicant's mark. [00:03:15] Speaker 04: The reversal of terms, one difference, the different preposition, they focus on only two words. [00:03:23] Speaker 04: textbook dissection. [00:03:25] Speaker 00: And moreover, there's- Do you disagree, though, that the two marks are conveying somehow turning ideas into assets? [00:03:36] Speaker 04: I will admit that at some level, yes, Your Honor. [00:03:38] Speaker 04: They do convey that same descriptive commercial impression. [00:03:42] Speaker 04: In fact, it's very similar to this court's predecessor case and the Yale Bruce case. [00:03:46] Speaker 04: You had Termicide and Terminix. [00:03:49] Speaker 04: Those refer termite killers. [00:03:52] Speaker 04: The court said no confusion. [00:03:54] Speaker 04: You could easily say in that case, oh, well, termicide and terminics, they say the same thing. [00:03:58] Speaker 04: It's sort of termites. [00:04:00] Speaker 04: But this court said, well, no, that's the services at issue. [00:04:03] Speaker 04: You're selling these on off-the-shelf termite killers. [00:04:06] Speaker 04: So the fact that these two marks come close to one another is permissible because they're both treading on that same descriptive commercial impression. [00:04:14] Speaker 04: Here, where the board took a descriptive commercial impression and used it as the basis for similarity, it committed the same error. [00:04:22] Speaker 00: And really what we see in- Is your argument that all these marks are really descriptive and shouldn't be trademarked in the first place? [00:04:31] Speaker 04: I don't think so, Your Honor. [00:04:32] Speaker 04: I think marks can simply hue much closer to one another when they have descriptive aspects. [00:04:39] Speaker 04: This court's case law says that consumers really do distinguish between marks on less descriptive portions. [00:04:46] Speaker 04: And we freely omit the word transforming in a posers mark. [00:04:51] Speaker 04: is probably his hook for protection. [00:04:54] Speaker 04: There are a few other transforming marks out there by other IP attorneys, but not as many. [00:05:00] Speaker 04: And it's certainly different than building, and there are no building asset marks out there. [00:05:07] Speaker 04: And I think really, just as this quarter version, Jewish Generation and Jack Wolfskin, the analysis in Jack Wolfskin comparing the marks spans six pages. [00:05:19] Speaker 04: What were the marks in Jack Wolfskin? [00:05:21] Speaker 04: Two paw prints. [00:05:23] Speaker 04: One was just a paw print. [00:05:25] Speaker 04: The other was a paw print with the following word, calmay, after it. [00:05:30] Speaker 04: Right. [00:05:30] Speaker 04: The board in that decision spent six pages discussing both the... Well, that was a big difference. [00:05:37] Speaker 02: While they both had the paw prints, one had this added word, calmay. [00:05:42] Speaker 02: That's quite a difference. [00:05:44] Speaker 04: Certainly, Your Honor. [00:05:45] Speaker 04: And just like here, we have the added word building, which nowhere appears in [00:05:49] Speaker 04: opposers mark. [00:05:50] Speaker 04: We don't use the word business. [00:05:52] Speaker 02: But what is central to these marks are assets and ideas, which that's what the slogan is all about. [00:06:02] Speaker 02: And both of them contain the same words, key words. [00:06:07] Speaker 04: Your Honor, I would submit that there's no evidence in the record that shows that asset and idea are what these marks are all about. [00:06:14] Speaker 04: If anything, the record shows there's [00:06:16] Speaker 04: several dozens over a hundred third-party uses of marks in IP law using the words asset and idea. [00:06:25] Speaker 02: Maybe that's your best argument. [00:06:27] Speaker 02: But how can there be confusion if there hasn't been already? [00:06:29] Speaker 04: That's exactly right, your honor. [00:06:31] Speaker 04: And this has been used to expand over years. [00:06:33] Speaker 04: And this was an argument we made at the board. [00:06:35] Speaker 04: There is no evidence of confusion on these marks, on all these third-party marks that have gone back the better part of a decade among several distinct users of intellectual property law. [00:06:45] Speaker 04: The board even credited [00:06:47] Speaker 04: the finding in their discussion of the fourth Dupont factor that, wow, yes, there are all these marks. [00:06:53] Speaker 04: There's a large law firm in New Jersey that uses the mark transforming ideas into assets. [00:06:59] Speaker 04: There's several other practitioners who say transforming ideas into assets, turning ideas into assets. [00:07:04] Speaker 00: So then the Trademark Board did take that into account. [00:07:07] Speaker 04: They took it under account only under the fourth factor in looking at the number of marks in issue. [00:07:14] Speaker 04: This court has said that you're also supposed to take that into account when comparing the marks under the first factor, the primary factor, which says, let's discount things that are common or descriptive and not use those as the basis for consideration. [00:07:29] Speaker 04: And in fact, in the board opinion here, we don't see any discussion of that in the first factor. [00:07:34] Speaker 04: There's no recognition. [00:07:35] Speaker 04: I think, Your Honor. [00:07:36] Speaker 00: It's a bit tricky to even attempt to separate out what is [00:07:44] Speaker 00: descriptive from possibly suggestive from these marks. [00:07:48] Speaker 00: I mean, it's just, you know, both of them are connoting a certain theme and it's not really a compound mark that you can break into to like say the Jack Wolfskin case where there was a word and then there was a little picture where again, maybe the trademark board in that instance, overly focused on one to [00:08:13] Speaker 00: and ignore the second part of that compound mark, but this is not really a compound mark. [00:08:19] Speaker 04: You're right, Your Honor. [00:08:20] Speaker 04: It's a long descriptive verbal mark where sound and appearance would be much more important in determining how are consumers looking at this. [00:08:29] Speaker 04: And the board doesn't go into any real discussion of how do these sound and appear, aside from to say they're different in that sense. [00:08:37] Speaker 04: Do you need actual confusion in order to prove likelihood of confusion? [00:08:41] Speaker 00: I thought the answer was no. [00:08:42] Speaker 04: The answer is no, Your Honor. [00:08:43] Speaker 04: The test does go the other way, though, under the absence of confusion factor. [00:08:49] Speaker 04: If there is opportunity for confusion, and we submit on this voluminous record of many, many IP practitioners for the better part of a decade, in fact, some evidence goes back to 2002 using the term transforming ideas into assets, there's been no confusion. [00:09:06] Speaker 04: The board properly found [00:09:07] Speaker 04: that consumers of IP legal services are sophisticated. [00:09:12] Speaker 04: This is not an off-the-cuff impulse buy. [00:09:15] Speaker 04: I think this all just reaffirms that there is no likelihood of confusion here. [00:09:20] Speaker 04: And in fact, had the board conducted its analysis under the first factor correctly, that would have mirrored that finding, because they would have said, well, hey, yes. [00:09:29] Speaker 04: At some point, we can see. [00:09:31] Speaker 04: We can abstract these to be the similar idea, but that's descriptive. [00:09:35] Speaker 01: But the board said, [00:09:37] Speaker 01: that it had been in actual use for about a week before the application was filed. [00:09:43] Speaker 01: And are you saying then that it was in continuous use after the application was filed and while these proceedings were going on and that no evidence of subsequent confusion was shown? [00:09:56] Speaker 04: That's correct, Your Honor, with regard to applicant mark and opposers mark. [00:10:00] Speaker 04: There were over four years of potential [00:10:04] Speaker 04: Concurrent uses before the board decision where there could have been evidence for confusion say before the decision but after the application Yes, four years no evidence of actual confusion But moreover we argue this that when you have such a record of so many additional third-party uses and you also have evidence that a poser takes careful notes of every contact of how people Contact him based on his mark and there's been no confusion on any of these third-party marks either [00:10:34] Speaker 04: That is also evidence that there is simply no likelihood of confusion here. [00:10:38] Speaker 04: Consumers of intellectual property law simply aren't going to confuse myself an opposer based on this slogan. [00:10:46] Speaker 04: And I really just want to re-emphasize that the same analysis that the board undertook in these cases, and even Juice Generation, where the mark was peace and love and juice, which was a little more lengthy like the case here, [00:11:02] Speaker 04: The board went through several pages of discussion there, really analyzing each term, talking about how these marks appeared, talking about how they sounded. [00:11:13] Speaker 04: We don't have any of that in the board decision below. [00:11:16] Speaker 04: We have two paragraphs that quotes ideas and assets, which is admittedly the most common aspect of these marks and are used to describe what practitioners and intellectual property do. [00:11:30] Speaker 04: So we submit under the facts of [00:11:32] Speaker 04: Jack Wolfskin and Juice Generation, this case cannot be affirmed, what the board did here. [00:11:39] Speaker 04: And as I said, Your Honor, there are other factors at play here. [00:11:45] Speaker 04: We have argued that the eighth factor, as I just went through, the lack of actual confusion, was not properly credited by the board. [00:11:54] Speaker 04: And further, there was evidence and argument on the third, ninth, and 12 factors that the board simply didn't even address. [00:12:00] Speaker 04: We don't even know if the board appreciated [00:12:03] Speaker 04: I'll stand as those arguments were made on the brief, but we do think that those are additional avenues for reversal. [00:12:09] Speaker 04: If your honors have no questions on those matters, I won't go into them. [00:12:13] Speaker 04: But in closing, your honors, this case comes on appeal with its first factor, misweighed, really worse than Jack Wolfskin and Juice Generation. [00:12:21] Speaker 04: And it comes with more DuPont factors already weighing against likelihood of confusion than either Jack Wolfskin or Juice Generation. [00:12:29] Speaker 04: Namely, this case involves sophisticated purchasing conditions, whereas those cases did not. [00:12:35] Speaker 04: And it comes with even more third-party usage than Jack Wolfskin or Juice Generation, without any actual evidence of confusion. [00:12:43] Speaker 04: Neither of those cases were affirmed. [00:12:45] Speaker 04: We ask this court to reverse the likelihood of confusion here, just like in Jack Wolfskin. [00:12:50] Speaker 04: I'll serve you the rest of my time. [00:12:52] Speaker 01: OK. [00:12:52] Speaker 01: Thank you, Mr. Alley. [00:12:57] Speaker 01: Mr. Duhin. [00:13:00] Speaker 03: Good morning, your honor. [00:13:03] Speaker 03: I apologize if my voice is a bit scratchy. [00:13:05] Speaker 03: I sound like Warren Buffett, I guess. [00:13:08] Speaker 03: That's an allergy problem. [00:13:12] Speaker 03: This appeals about initial interest confusion. [00:13:15] Speaker 03: It's not about informing a post-contact prospect about the attorney's background in order to gain engagement. [00:13:24] Speaker 00: Did the board say anything about initial interest confusion? [00:13:30] Speaker 00: I don't believe the board went off on that theory. [00:13:34] Speaker 03: I don't think they used those exact words, but they did quote from the evidence in the case, extensively the black declarations and testimony. [00:13:50] Speaker 03: Black is an expert in the field of branding. [00:13:54] Speaker 03: about what initial interest confusion is all about. [00:13:58] Speaker 03: And we did cite that. [00:13:59] Speaker 03: There's an extensive portion of our brief below the initial interest confusion, in fact, was raised below to the board. [00:14:10] Speaker 02: Mr. Doolin, if there is so much usage out there of a phrase like this used by IP firms, and there isn't a lot of record of likelihood of confusion, [00:14:24] Speaker 02: Did the board use the wrong criterion to reject this mark? [00:14:29] Speaker 02: Maybe it was more descriptive than the likelihood of confusion. [00:14:34] Speaker 03: Your honor, the mark is incontestable. [00:14:38] Speaker 03: Talking about descriptiveness of the mark is a collateral attack. [00:14:43] Speaker 03: He could have filed to cancel the mark based on that. [00:14:48] Speaker 03: He did not. [00:14:50] Speaker 03: He just stopped from raising it at this level. [00:14:53] Speaker 03: That is just a red herring and he keeps dragging that back in front of the court. [00:15:01] Speaker 00: I'm sorry. [00:15:02] Speaker 00: Are you saying he could have challenged your mark? [00:15:06] Speaker 03: We have a registered mark. [00:15:07] Speaker 03: He can petition to cancel. [00:15:09] Speaker 03: But you said it's incontestable. [00:15:10] Speaker 03: I agree it's incontestable. [00:15:12] Speaker 03: He could have contested it on perhaps other grounds of fraud or something of that nature. [00:15:18] Speaker 00: But he would not have been able to. [00:15:19] Speaker 00: challenge it under a descriptiveness theory. [00:15:22] Speaker 00: Is that right? [00:15:23] Speaker 03: No, not at all. [00:15:25] Speaker 00: But the point is... So if your mark smells descriptive, there's nothing that anyone can do about it? [00:15:31] Speaker 03: Well, common elements can be used in a mark, and I call the court's attention to the Specialty Brands case on page 42. [00:15:42] Speaker 00: I'm just asking a question. [00:15:44] Speaker 00: If a registered mark has been deemed incontestable because it's been registered for X number of years, [00:15:50] Speaker 00: Are you saying there's nothing that anybody can do at that point to challenge the validity of that registered mark under the theory of descriptiveness? [00:15:58] Speaker 03: I don't know cases that permit that. [00:16:01] Speaker 03: I don't think it's an issue that should be raised here at this point in time. [00:16:10] Speaker 03: What he is attempting to say is that there's lots of third party uses, the question that Judge Lurie asked. [00:16:16] Speaker 03: And I will call the attention to the fact that we have analyzed all of those alleged uses on his part. [00:16:25] Speaker 02: But your view would be, presumably, aside from all those third party uses, the use of this mock would be confusing with respect to the registered mock. [00:16:37] Speaker 02: That's correct. [00:16:39] Speaker 03: And the law does not require us to sue everybody simultaneously. [00:16:45] Speaker 03: We have addressed over the, since 2004, some 12 different people who have attempted to basically infringe on our mark rights and we have stopped them. [00:16:58] Speaker 03: It's unlike the ways portrayed by Mr. Alley. [00:17:03] Speaker 03: The board looked at the 67 different instances in 135 pages of citations. [00:17:13] Speaker 03: The board singled out 17 of those for review as being the most relevant examples of internet sites. [00:17:22] Speaker 03: Two have no active page. [00:17:25] Speaker 03: They're meaningless. [00:17:27] Speaker 03: Two more don't offer legal services. [00:17:30] Speaker 03: They're meaningless. [00:17:31] Speaker 03: Five more no longer use the listed phrase, even if they ever did. [00:17:37] Speaker 03: Four more have or had different phrases or slogans. [00:17:41] Speaker 03: And the remaining six all stopped their usages of concern after enforcement by us. [00:17:51] Speaker 03: Our position very simply is we objected to that evidence. [00:17:57] Speaker 03: The court, the board basically says, we can figure it out, rely on us to sort the good from the bad. [00:18:05] Speaker 03: And they basically have [00:18:10] Speaker 03: reviewed and determined that the websites that he has are either hearsay, unauthenticated, don't say what they claim to have said. [00:18:23] Speaker 03: The law simply is that a website-ation is not proof of the truth of the matter stated. [00:18:32] Speaker 03: It is simply the citation. [00:18:35] Speaker 03: And I also want to comment on one very important thing. [00:18:38] Speaker 03: He claims there's four years of concurrent use. [00:18:40] Speaker 03: That's not true. [00:18:43] Speaker 03: For over two and a half years, he had his slogan embedded in an image that included his trade name, Ryan Alley Law, or whatever he calls himself. [00:18:58] Speaker 03: That's his trade name. [00:19:00] Speaker 03: That is not searchable on the internet. [00:19:03] Speaker 03: evidence in here by Kirk Thomas, who's an expert on Internet information, that points out that when the slogan is embedded in the image, it is not searchable. [00:19:19] Speaker 03: It cannot be indexed. [00:19:20] Speaker 03: It cannot be looked at. [00:19:22] Speaker 03: You could try to look up ideas and assets and you'll never find him. [00:19:28] Speaker 03: You will find us. [00:19:31] Speaker 03: And he claims that he did a search beforehand in the trademark office and he didn't find us. [00:19:39] Speaker 03: And yet we have a declaration in here by a paralegal who is now an attorney who went in and searched it in two minutes, pulled us up. [00:19:49] Speaker 03: So we feel that there is an undercurrent of [00:19:53] Speaker 03: trickery and bad faith going on in the case with respect to adopting the key word. [00:19:59] Speaker 01: I think we can leave out the accusations. [00:20:02] Speaker 01: Let's just talk about the merits. [00:20:04] Speaker 01: I'm sorry. [00:20:04] Speaker 03: Yes. [00:20:05] Speaker 03: I apologize, your honor. [00:20:07] Speaker 03: We think that while the factual findings of the board are well supported by credible, relevant evidence on the record, your de novo review [00:20:20] Speaker 03: when it's properly weighed in the light of the nature and the function of the marks in the arena of initial interest confusion, we'll find the case is even stronger. [00:20:31] Speaker 03: The real key here is a similarity of the marks as they function to motivate and generate initial interest. [00:20:39] Speaker 03: And that is a key aspect here. [00:20:43] Speaker 03: Initial interest trademark, it's a marketing tool. [00:20:46] Speaker 03: It's designed to motivate [00:20:48] Speaker 03: the prospect of customer or the client. [00:20:51] Speaker 03: And in the case of the legal services here, to motivate the prospect to contact the attorney. [00:20:58] Speaker 03: Here's the issue. [00:21:00] Speaker 03: In the phone books, there's millions of attorneys. [00:21:02] Speaker 03: In the internet, there's billions and billions of attorneys. [00:21:06] Speaker 03: If I can use a phrase of my former classmate, Carl Sagan, about billions and billions. [00:21:14] Speaker 03: How do you stand out? [00:21:15] Speaker 03: How does an attorney stand out? [00:21:17] Speaker 03: The key question here is how to get somebody to pick up the phone and say, I want to call that attorney rather than this attorney. [00:21:24] Speaker 03: And that's what initial interest trademarks do. [00:21:32] Speaker 03: Trying to land the client or a customer is a process. [00:21:37] Speaker 03: Some occur quickly at the supermarket. [00:21:40] Speaker 03: Some take a long time, Boeing trying to get a contract from the government. [00:21:44] Speaker 03: And, and, but the key thing is they all start somewhere and they start with contact. [00:21:50] Speaker 03: And lawyers are not permitted to contact potential customers, clients. [00:21:56] Speaker 01: Clients have to call them. [00:21:57] Speaker 01: I think limit the argument to whether there's likelihood of confusion. [00:22:01] Speaker 01: Sorry? [00:22:02] Speaker 01: Let's limit your argument to the grounds on which it was rejected. [00:22:09] Speaker 03: Yes. [00:22:11] Speaker 03: Initial interest trademark functions to have the attorney stand out amongst the crowd. [00:22:18] Speaker 03: That's what they do. [00:22:21] Speaker 03: Here's a couple of examples. [00:22:22] Speaker 03: Futures now, we'll turn today's events into tomorrow's profits. [00:22:28] Speaker 03: Life lock, why monitor a problem if you don't fix it? [00:22:33] Speaker 03: Innovation law group, transforming ideas into business assets and our companion mark, transforming ideas into assets. [00:22:42] Speaker 03: without the word business and business assets is very similar to building assets. [00:22:50] Speaker 03: And the inversion is very simple. [00:22:52] Speaker 03: You have to change into to from in order to invert the word order. [00:22:59] Speaker 03: And inversion marks are very well recognized in the law as being [00:23:06] Speaker 03: I mean, inversion of Marx is well recognized in the law as being infringement, as being confusingly similar. [00:23:16] Speaker 03: So what the slogans do is they filter by the term ideas. [00:23:29] Speaker 03: How do we distinguish IP law from PI law? [00:23:35] Speaker 03: How do I prevent [00:23:36] Speaker 03: Somebody called me up and says, I got a divorce matter or I got a bankruptcy matter. [00:23:41] Speaker 03: I got a criminal matter. [00:23:43] Speaker 03: I don't want that. [00:23:44] Speaker 03: I can't have those kinds of calls coming in. [00:23:48] Speaker 03: It overwhelms us. [00:23:50] Speaker 03: So using the word idea in there helps the people and it speaks to their need to get the idea out of their head into something tangible. [00:24:02] Speaker 03: And hey, if their goal is a business, [00:24:05] Speaker 03: Making it into a business asset is part of their ultimate goals. [00:24:10] Speaker 03: And there ain't no inventors that don't want to make money out of their ideas. [00:24:15] Speaker 03: So it makes sense. [00:24:21] Speaker 03: We say that the building assets from ideas is an inversion. [00:24:26] Speaker 03: Black went into complete detail regarding that several pages. [00:24:33] Speaker 03: I'd love to have time to read it here. [00:24:34] Speaker 03: I don't. [00:24:35] Speaker 03: But the point is it's referred to in our brief. [00:24:38] Speaker 03: You can take a look at page 37 of the brief in there. [00:24:41] Speaker 03: She concludes that there's no significant difference in the sense of the message. [00:24:47] Speaker 03: And I believe Mr. Alley agreed to that in his argument. [00:24:53] Speaker 03: The board quoted Black. [00:24:59] Speaker 03: He only refers to what the board said. [00:25:02] Speaker 03: He doesn't refer to the embedded [00:25:04] Speaker 03: testimony of black, which is unrebutted. [00:25:08] Speaker 03: He offered no testimony, just his personal views, which our view is that that's not true evidence. [00:25:22] Speaker 03: The key concepts are assets and ideas. [00:25:29] Speaker 03: The into has to be changed. [00:25:32] Speaker 03: to from in order to reverse the order. [00:25:36] Speaker 03: And the board did not go through a impermissible dissection. [00:25:42] Speaker 03: It focused on the key aspects, the key portions of the DuPont factor is the comparison of the marks. [00:25:52] Speaker 03: And of course, you'll notice that he does not argue about comparison of the goods and services second factor because that's admitted. [00:26:01] Speaker 03: And the board found the services to be identical. [00:26:05] Speaker 03: He has inconsistent arguments about trade channels. [00:26:09] Speaker 03: And he also argues that some of this internet citations that he have tends to show that there is a distinction in the geography. [00:26:28] Speaker 03: He says at one point that the [00:26:31] Speaker 03: He's on the East Coast, we're on the West Coast, and yet he relies on the internet for his evidence. [00:26:39] Speaker 03: Those are inconsistent positions. [00:26:48] Speaker 03: He also, in order to rebut the idea of initial interest confusion, relies on the post-contact detailed discussion with the potential client [00:27:02] Speaker 03: of all of the things that the bar requires him to tell the client. [00:27:06] Speaker 03: That's at the tail end of the process. [00:27:08] Speaker 03: That does not excuse initial interest confusion because the critical thing is getting that call in the door. [00:27:16] Speaker 03: It's not how it moves the potential client to become an active client. [00:27:25] Speaker 03: And I would refer the court to the famous horse case on page 45 of our brief. [00:27:33] Speaker 03: It's only after the contact that this degree of care aspect of a review of trademarks comes into play. [00:27:46] Speaker 03: And the degree of care does not contradict or should I say does not negate [00:28:01] Speaker 03: the initial interest confusion. [00:28:07] Speaker 01: Okay, I think we're out of time, but we have the arguments that you're doing. [00:28:27] Speaker 04: Thank you, Your Honors. [00:28:29] Speaker 04: I'd just like to briefly respond to a couple of points. [00:28:33] Speaker 04: First off, the opposer submits that a lot of these third-party uses aren't actually true and that they're gone or not on the internet. [00:28:42] Speaker 04: That's simply not true. [00:28:44] Speaker 04: They're in evidence. [00:28:46] Speaker 04: The board relied on them and verified that they were in there. [00:28:51] Speaker 04: You can go to the websites now and see them, and you can see the evidence from 2012 that they were in the record. [00:28:57] Speaker 04: I don't know what Opposer is saying. [00:29:00] Speaker 04: He says that they're not actually in use. [00:29:03] Speaker 04: They are. [00:29:04] Speaker 04: Opposer also says that his marks are incontestable, and an argument of descriptiveness doesn't have a place here. [00:29:12] Speaker 04: This court has specifically said that pointing out that a mark has descriptive aspects is not a collateral attack on a mark. [00:29:19] Speaker 04: An applicant is entitled to do so, whether it be before the USPTO or in an opposition proceeding. [00:29:27] Speaker 04: Here, there was nothing before the USPTO. [00:29:29] Speaker 04: The examiner allowed this mark, finding no likelihood of confusion, and passed it to publishing. [00:29:34] Speaker 04: So we just have the record in the opposition. [00:29:39] Speaker 04: But I think what I'd really like to reemphasize here, Your Honors, is under the facts of Jack Wolfskin and Jews Generation, they say you're not supposed to pick out elements of marks, especially when- You say the examiner allowed the mark. [00:29:55] Speaker 02: Did the examiner have before him or her the opposer's mark? [00:30:02] Speaker 04: He did, Your Honor. [00:30:02] Speaker 04: The applicant's mark is of record. [00:30:06] Speaker 04: And you can see the examiner's search summary results. [00:30:09] Speaker 04: He does a query that specifically returns opposer's mark. [00:30:12] Speaker 04: No likelihood of confusion or rejection. [00:30:16] Speaker 04: So as I was saying, Your Honors, in this opposition, we have the board below spending a whole two paragraphs [00:30:24] Speaker 04: discussing only two words in the marks. [00:30:27] Speaker 04: Just as this court said in Juice Generation and Jack Wolstein, that is impermissible. [00:30:33] Speaker 04: What's even worse here is that you have a lot of evidence of record that the commercial impression of these marks is descriptive, that these marks are very, very common, that for years you've had users and other practitioners in intellectual property using marks with ideas and assets in both orders with no confusion occurring. [00:30:54] Speaker 04: The board should have taken that into account under the first factor. [00:30:57] Speaker 04: Had they done so, their finding there would have been consistent with the rest of the record, that there's simply no likelihood of confusion here based on these slogans. [00:31:05] Speaker 04: If there's no further questions, I'll submit the case to you. [00:31:09] Speaker 01: Thank you. [00:31:10] Speaker 01: Okay. [00:31:10] Speaker 01: Thank you, Mr. Allen. [00:31:12] Speaker 01: And thank you, Mr. Doolin. [00:31:13] Speaker 01: The case is taken under submission.