[00:00:06] Speaker 02:
Mr. Young, and you reserve five minutes for rebuttal, correct?

[00:00:10] Speaker 00:
That's correct, Your Honor.

[00:00:13] Speaker 02:
Let's wait a little bit till... Okay, you may proceed, sir.

[00:00:19] Speaker 01:
May it please the court?

[00:00:21] Speaker 01:
This is an appeal from the Trademark Trial and Appeal Board's grant of Adidas petition to cancel the Christian Faith Fellowship Church's two registrations for its ad zero trademark.

[00:00:33] Speaker 01:
The issue presented

[00:00:34] Speaker 01:
is whether the in-state sale of two trademarked hats to an out-of-state purchaser qualifies as a use in commerce under the Lanham Act.

[00:00:44] Speaker 01:
Church asks this court to vacate the board's decision.

[00:00:48] Speaker 01:
The board erroneously interpreted use in commerce under the Lanham Act.

[00:00:54] Speaker 01:
The Lanham Act defines commerce as all commerce which may lawfully be regulated by Congress.

[00:01:00] Speaker 02:
Does the Lanham Act contain a de minimis provision

[00:01:04] Speaker 02:
with respect to use.

[00:01:06] Speaker 01:
No, it does not.

[00:01:08] Speaker 02:
But yet that's what the board found.

[00:01:11] Speaker 01:
That's what the board found.

[00:01:12] Speaker 01:
That's correct, Your Honor.

[00:01:14] Speaker 01:
For more than 50 years, the Supreme Court has recognized that sales made to individuals traveling across state lines is commerce which Congress may regulate.

[00:01:25] Speaker 01:
And it has consistently held that there is no de minimis or trivial exception.

[00:01:32] Speaker 01:
any sale to an out-of-state purchaser is commerce which Congress may regulate.

[00:01:41] Speaker 02:
What about the provision in the Lanham Act that speaks to substantially affect?

[00:01:46] Speaker 01:
There is no provision in the Lanham Act that talks about that a sale has to substantially affect commerce.

[00:01:53] Speaker 01:
The Lanham Act says that commerce is all commerce which Congress may regulate.

[00:01:59] Speaker 01:
And the Supreme Court has consistently held that

[00:02:02] Speaker 01:
That means all commerce.

[00:02:08] Speaker 01:
And there is no trivial or de minimis exception.

[00:02:11] Speaker 01:
Thus, the Lanham Act extends to all trademarks that are used in commerce, even where they are the subject of only a single sale.

[00:02:21] Speaker 01:
The Supreme Court in Gonzales versus Reich held that where a class of activity affects commerce,

[00:02:30] Speaker 01:
such that it may be regulated by Congress, individual instances within that class are likewise within Congress's commerce clause power.

[00:02:41] Speaker 01:
Even instances that may be trivial or de minimis.

[00:02:48] Speaker 01:
And there is no requirement that the instances, the individual instances, by themselves be shown to have any effect on commerce.

[00:02:59] Speaker 02:
Does it make any difference that this case involves trade in goods as opposed to trade in services?

[00:03:04] Speaker 01:
No, absolutely not.

[00:03:06] Speaker 01:
And this court or its predecessor was very clear about that in the Salinas-Wines case, that the law is the same whether it's goods or services.

[00:03:19] Speaker 01:
Here, Congress sought to give use in commerce the broadest meaning possible in order to extend the benefits of the Lanham Act as broadly as possible.

[00:03:29] Speaker 01:
And because the US Supreme Court and this court have recognized that sales made to individuals traveling across state lines affect commerce and may be regulated by Congress, any sale of a trademark product to an individual traveling across state lines is a use in commerce, entitling that trademark to federal regulatory.

[00:03:53] Speaker 02:
Is there any requirement to show that the purchaser travels

[00:03:58] Speaker 02:
interstate lines?

[00:04:01] Speaker 01:
No.

[00:04:01] Speaker 01:
There's only a requirement that it be in commerce and sales to individuals who are out of state has been deemed by the U.S.

[00:04:11] Speaker 01:
Supreme Court to be sales in commerce.

[00:04:13] Speaker 02:
Suppose there's no evidence that the person's from out of state.

[00:04:15] Speaker 02:
It's just an intra, the only evidence is an intrastate.

[00:04:19] Speaker 01:
Well, there would have to be evidence that the purchaser is from out of state, is not a resident of the state in which the sale occurred.

[00:04:28] Speaker 02:
If there's no evidence, for example in this case, if there's no evidence, and the evidence is a single check, if there's no evidence of any type of interstate travel, then you would lose.

[00:04:40] Speaker 01:
If there's no evidence that Charlotte Howard is an out of state resident, then yeah, we've got a problem.

[00:04:48] Speaker 01:
I would agree.

[00:04:52] Speaker 01:
So this court in Larry Harmon pictures recognized that there is no minimum threshold for application of the Lanham Act, that any sale of a trademarked product to an individual traveling across state lines is a use in commerce

[00:05:17] Speaker 01:
and that that entitles the trademark to federal registration.

[00:05:22] Speaker 01:
Accordingly, Your Honor, the church asks this court to vacate the board's decision and to remand for consideration of Adidas' other arguments.

[00:05:33] Speaker 02:
Now, before you sit down, why don't you address the evidentiary issue here, the hearsay evidentiary check.

[00:05:39] Speaker 02:
Sure.

[00:05:40] Speaker 01:
So the evidence here that Charlotte Howard is a resident of Wisconsin is a check.

[00:05:46] Speaker 01:
The Charlotte Howard wrote to the church on February 23, 2005 for the purchase of two hats.

[00:05:53] Speaker 01:
It's a pre-printed check and it shows her address as being in Wisconsin.

[00:05:58] Speaker 01:
The check is self-authenticating because it's commercial paper and under rule of evidence 902.9, it's self-authenticating.

[00:06:07] Speaker 02:
The check was retained.

[00:06:10] Speaker 02:
Does that rule require that the business, the custodian of the evidence, the custodian of the commercial paper be the maker of the commercial paper?

[00:06:21] Speaker 01:
No.

[00:06:22] Speaker 01:
Any commercial paper is self-authenticating under 9029.

[00:06:27] Speaker 01:
The second question is the hearsay issue, and that touches on your question, which is that the contents of the check are alleged by Adidas to be hearsay.

[00:06:41] Speaker 01:
Under rule of evidence 8036, it is a business record of the church, and it does not have to have been created by the church.

[00:06:52] Speaker 01:
The church doesn't have to have seen it be created.

[00:06:54] Speaker 01:
The requirement under 8036 is that the check have been retained in the records of the church and relied on by the church, and there was a test.

[00:07:04] Speaker 05:
And you're relying on the airline forwarders decision to support that?

[00:07:07] Speaker 05:
That's correct.

[00:07:08] Speaker 01:
And airline forwarders says specifically,

[00:07:11] Speaker 01:
that the church doesn't have to have made the record, doesn't have to have seen the record being made, as long as it is in the records of the church, then it qualifies as a business record under 8036.

[00:07:24] Speaker 02:
Thank you.

[00:07:30] Speaker 02:
Thank you.

[00:07:31] Speaker 02:
You reserved more than your five minutes of time.

[00:07:35] Speaker 00:
We appreciate that.

[00:07:37] Speaker 00:
Thank you.

[00:07:41] Speaker 02:
Counsel Zachariah.

[00:07:48] Speaker ?:
Yes, Your Honor.

[00:07:48] Speaker 04:
Good morning, Your Honors.

[00:07:49] Speaker 04:
May it please the Court.

[00:07:50] Speaker 04:
My name is John Zachariah.

[00:07:51] Speaker 04:
I'm here for the Appellee Adidas AG.

[00:07:54] Speaker 04:
I would like to present three points this morning as to why this Court should affirm the Board's ruling.

[00:08:01] Speaker 04:
Number one, substantial evidence in this case supports the factual findings of the Board.

[00:08:08] Speaker 04:
Number two, the board applied the correct legal standard.

[00:08:13] Speaker 04:
The board did not apply some de minimis standard.

[00:08:17] Speaker 05:
Where does the de minimis or the quantity, where does that requirement come from given cases like Gonzales and the fact that the Lanham Act doesn't have a de minimis exception in it?

[00:08:30] Speaker 04:
I think the de minimis is really a red herring.

[00:08:33] Speaker 04:
The board, when you look at the decision, the board's decision when it refers to de minimis, it refers to a de minimis sale.

[00:08:39] Speaker 04:
And then it says, and under the circumstances.

[00:08:43] Speaker 04:
So the board looked at the totality of the evidence to come to its decision.

[00:08:47] Speaker 04:
And the totality of the evidence was there was one sale that was made solely in Illinois.

[00:08:53] Speaker 04:
It was solely intrastate.

[00:08:55] Speaker 05:
You say it's intrastate.

[00:08:57] Speaker 05:
Even though it crossed state lines, you're saying it's intrastate.

[00:09:00] Speaker 04:
Correct.

[00:09:01] Speaker 04:
There's no law that's the case that I'm aware of that the fact that a consumer, let's assume this consumer or this person Howard crossed eight lines, which were not conceded.

[00:09:11] Speaker 04:
Let's assume that's the case.

[00:09:12] Speaker 04:
She crossed eight lines, and she purchased these two hats.

[00:09:16] Speaker 04:
That's not use of the mark in commerce.

[00:09:20] Speaker 04:
Why not?

[00:09:21] Speaker 04:
Because under the law, Your Honor, the statute specifically requires that there be a sale or transport of branded product in commerce.

[00:09:31] Speaker 05:
So if it were shipped, you would have a different outcome in this case, according to that.

[00:09:35] Speaker 05:
Yes, Your Honor.

[00:09:36] Speaker 04:
Yes.

[00:09:37] Speaker 03:
But the law requires that traditionally the courts and the board... Why isn't it transported in commerce if she takes it across state lines?

[00:09:46] Speaker 04:
Once the transport has to be made by the owner of the trademark, has to be made by the owner of the trade.

[00:09:52] Speaker 04:
And that's clear.

[00:09:53] Speaker 04:
That's clear under Salinas.

[00:09:54] Speaker 04:
Salinas says the use in commerce has to be made by the owner of the trademark.

[00:09:59] Speaker 04:
That's still the Salinas case.

[00:10:02] Speaker 03:
The Salinas case states... But even if that's the case, it's still sold to an out-of-state customer.

[00:10:09] Speaker 04:
That's not sufficient, Your Honor, to show use of the mark in commerce.

[00:10:12] Speaker 03:
But that's the interpretation of the Commerce Clause in every other area of jurisprudence, that if the business deals with interstate travelers, that's in commerce.

[00:10:22] Speaker 03:
Your Honor, I respectfully disagree.

[00:10:25] Speaker 03:
The Lanham Act specifically requires that... I'm not talking about the Lanham Act.

[00:10:29] Speaker 03:
I don't think the Lanham Act has any distinction between the scope, the regular scope of the Commerce Clause.

[00:10:35] Speaker 03:
It specifically says that it extends to the full extent of Congress's power, which is the Commerce Clause.

[00:10:42] Speaker 04:
That's right.

[00:10:42] Speaker 04:
But you have to understand that the use in commerce, commerce means commerce that's regulated by Congress.

[00:10:49] Speaker 04:
Which is interstate commerce.

[00:10:50] Speaker 03:
But the Salinas says... What is interstate commerce defined as?

[00:10:54] Speaker 04:
Interstate commerce can mean commerce between states.

[00:10:58] Speaker 04:
That's interstate commerce.

[00:10:59] Speaker 04:
Foreign commerce is commerce between countries.

[00:11:03] Speaker 04:
Now, I agree.

[00:11:04] Speaker 04:
The Salinas has loosened the requirement of use in commerce for trademarks.

[00:11:09] Speaker 04:
Salinas says that an interstate sale can support a federal registration if it is shown that interstate sale had an effect on interstate commerce.

[00:11:23] Speaker 04:
And the board applied the correct law here, the correct standard.

[00:11:27] Speaker 04:
Did that interstate sale, that one sale of two hats to a consumer, did that one sale affect interstate commerce?

[00:11:35] Speaker 04:
And the board said no because it was de minimis.

[00:11:39] Speaker 04:
The board said no, your honor, because it was a de minimis sale and also it was a de minimis sale.

[00:11:43] Speaker 02:
So it's saying that one sale is not enough.

[00:11:46] Speaker 02:
How many do you have to have?

[00:11:48] Speaker 04:
I think the quantity, as long as you show there's an effect in interstate commerce, the quantity

[00:11:54] Speaker 03:
If a sale is made in interstate commerce, it has an effect on interstate commerce.

[00:12:01] Speaker 04:
But the sale was not made in interstate commerce, your honor, because there was no evidence of record showing that that one sale had any effect on interstate commerce.

[00:12:09] Speaker 04:
It's not automatic use in commerce.

[00:12:13] Speaker 02:
Do you concede that the check shows that the purchaser was living in another state?

[00:12:18] Speaker 02:
I mean, it's not proof, but the check indicates an address from another state.

[00:12:24] Speaker 02:
Your Honor, I can see that the check shows... In this case, it seems to me, I recall from the record that the church, the congregation is made up of residents from the two different states.

[00:12:38] Speaker 04:
Your Honor, the record shows, does not show how many residents were in Wisconsin at the time that the application was filed.

[00:12:47] Speaker 04:
These applications were filed in 2005.

[00:12:50] Speaker 04:
There's some evidence in the record that says that the appellant

[00:12:53] Speaker 04:
did some demographic in 2013 showing that there were 200 residents in Wisconsin.

[00:12:58] Speaker 04:
But that doesn't say that there were 200 residents that were members of the church in 2005.

[00:13:06] Speaker 04:
There was no evidence of record indicating how many residents lived in Wisconsin at the time that these applications were filed.

[00:13:13] Speaker 04:
And that's an important distinction.

[00:13:15] Speaker 04:
What facts existed at the time that these applications were filed to show that that interstate sale, that one interstate sale

[00:13:22] Speaker 04:
had an effect on interstate commerce.

[00:13:25] Speaker 04:
Salinas is clear.

[00:13:26] Speaker 05:
I want to ask you about something which you just said.

[00:13:28] Speaker 05:
You suggested that we should be just looking at the individual instance.

[00:13:32] Speaker 05:
And when Congress, I mean, when courts look at all commerce, or whether Congress can regulate certain interstate commerce, in some of these cases, like Gonzales and Wickard, they talk about how there might be one instance or the particular instance in which they're looking at in that case.

[00:13:51] Speaker 05:
might be small.

[00:13:52] Speaker 05:
But when they look at all the uses in the aggregate, this is an area which Congress can regulate.

[00:13:58] Speaker 05:
Are you suggesting that in this case, you take a different approach to the standard that we should be applying in determining whether Congress could regulate this as interstate commerce?

[00:14:08] Speaker 05:
In other words, do we just look at the one individual instance, or do we review it in the same way as you do in Gonzales and Wickard?

[00:14:17] Speaker 04:
Hypothetically, if I understand your question, I think this class of activity that Gonzalez refers to and Wickard refers to, there's nothing in the record that says, what is the class of activity here?

[00:14:30] Speaker 04:
We're only talking about one sale of hats.

[00:14:35] Speaker 03:
But under the Wickard standard, the one sale to an out-of-state customer would qualify.

[00:14:42] Speaker 03:
I mean, Wickard didn't even require a sale or out-of-state activity.

[00:14:46] Speaker 03:
But certainly under Wicard, one sale to an out-of-state customer would be interstate commerce.

[00:14:53] Speaker 04:
Your Honor, maybe under the Wicard case dealt with a regulatory statute.

[00:14:58] Speaker 03:
This is your problem.

[00:15:00] Speaker 03:
You're trying to argue that there's a different standard for interstate commerce under the Lanham Act versus the rest of the Commerce Clause cases, but the statute specifically disagrees with you.

[00:15:12] Speaker 04:
I respectfully disagree with that, Your Honor.

[00:15:13] Speaker 04:
The Lanham Act requires that there be use in interstate commerce.

[00:15:16] Speaker 03:
Commerce is all commerce which lawfully may be regulated by Congress.

[00:15:21] Speaker 03:
And Congress?

[00:15:21] Speaker 03:
Congress can regulate interstate commerce.

[00:15:25] Speaker 03:
So the Lanham Act regulates all interstate commerce.

[00:15:30] Speaker 04:
The sale of a person across the state lines.

[00:15:37] Speaker 04:
Let's assume, again, this power was in Wisconsin.

[00:15:39] Speaker 02:
Didn't this issue you're raising, wasn't it addressed in Larry Harmon?

[00:15:43] Speaker 02:
I mean, we said that the Landowners Act's use in commerce, that that requirement was intended to encompass the entire scope of congressional power under the Commerce Clause.

[00:15:56] Speaker 02:
And we went on and we declined to adopt any minimum or non-statutory criteria as to the

[00:16:03] Speaker 02:
amount of activity that's necessary in order to constitute use in commerce.

[00:16:09] Speaker 02:
Correct, Your Honor, but there has to be a showing of a direct effect.

[00:16:12] Speaker 02:
Well, just one.

[00:16:13] Speaker 02:
Just maybe one case and some other case will show that if you got one sale, then when you consider that sale in aggregate throughout America, then you have a substantial effect.

[00:16:24] Speaker 04:
But it's just one sale, Your Honor.

[00:16:26] Speaker 04:
There were multiple sales.

[00:16:27] Speaker 04:
It's one sale, that effect that was allegedly made before these applications were filed.

[00:16:35] Speaker 04:
And there has been no showing that that one sale had any effect.

[00:16:38] Speaker 04:
The fact that there was one sale, that doesn't per se mean that there was an effect on interstate commerce.

[00:16:43] Speaker 05:
What the appellant wants to do here is basically get- The statute says all commerce, which may be lawfully regulated by Congress, right?

[00:16:51] Speaker 05:
Right.

[00:16:52] Speaker 05:
Just looking at cases like Wickard and Gonzales, I'm not sure that your one sale argument makes sense.

[00:16:57] Speaker 03:
Well, Your Honor- The Commerce Clause doesn't apply differently depending on the facts of each individual case and how many sales.

[00:17:04] Speaker 03:
The Lanham Act regulates all interstate commerce, right?

[00:17:09] Speaker 03:
And so interstate commerce, as defined by all these cases, can include, because it may, in the aggregate, under all kinds of transactions, involve just one sale.

[00:17:24] Speaker 03:
The Lanham Act, because you may have a bunch of different trademark holders that only make one sale outside the

[00:17:31] Speaker 03:
outside of it, but in the aggregate that has some kind of impact on interstate commerce.

[00:17:35] Speaker 03:
So Congress can regulate one sale to an interstate traveler.

[00:17:40] Speaker 03:
Isn't that right?

[00:17:41] Speaker 04:
I think you have to look at the totality of this.

[00:17:45] Speaker 03:
In this case here, that one sale- I'm not talking about the specific facts of this case.

[00:17:50] Speaker 03:
Congress can, even if there was proof that there's a bunch of these companies that only

[00:17:56] Speaker 03:
incidental sales or one sale out of state, or it's just by chance that some out-of-state traveler, they could still regulate that activity, whether it's for trademark, if they wanted to act a federal sales tax, any number of statutes.

[00:18:10] Speaker 03:
They don't have to show substantial numbers of interstate travelers or the like to regulate that activity.

[00:18:17] Speaker 03:
They just have to show that there might be one interstate sale.

[00:18:21] Speaker 03:
Is that a correct

[00:18:22] Speaker 04:
They have to show more than just there was one sale.

[00:18:25] Speaker 04:
They have to show that there was an effect on interstate commerce by that one sale.

[00:18:28] Speaker 02:
Well, one sale could affect interstate commerce.

[00:18:34] Speaker 02:
You kind of want us to find some numerical requirement or percentage of sales.

[00:18:40] Speaker 02:
And that's what the board did here.

[00:18:42] Speaker 02:
They said de minimis.

[00:18:44] Speaker 02:
And I just don't see where they got that.

[00:18:46] Speaker 04:
Again, I'm not putting a... The board, in my estimation, did not put some numerical standard.

[00:18:52] Speaker 02:
Well, they said de minimis.

[00:18:54] Speaker 02:
That means compared to something else.

[00:18:57] Speaker 02:
You can't find that something is de minimis unless you're making a... You have a universe, a numerical universe of some kind, and you're saying that this particular set or element of that universe is de minimis.

[00:19:11] Speaker 04:
They said more than that, Your Honor.

[00:19:13] Speaker 04:
They said it was a de minimis sale.

[00:19:15] Speaker 04:
and under the other circumstances.

[00:19:17] Speaker 04:
So the other circumstances were, again, it was a one sale in a local bookstore in Illinois.

[00:19:24] Speaker 04:
This bookstore was open two hours a week.

[00:19:28] Speaker 04:
The amount of the sale was minimal.

[00:19:32] Speaker 04:
So it was more than just, they didn't put a quantified, a numerical test on whether or not there was an effect on interstate commerce.

[00:19:39] Speaker 04:
They looked at all the factors.

[00:19:42] Speaker 02:
Assume that we were to reverse on the

[00:19:45] Speaker 02:
on the question dealing with the interstate commerce.

[00:19:47] Speaker 02:
What else would there be left to do?

[00:19:50] Speaker 02:
Do we have to remand to resolve any other issues?

[00:19:54] Speaker 04:
Well, there were three claims that were brought at trial.

[00:19:57] Speaker 04:
This non-use claim was one of the three claims.

[00:19:59] Speaker 04:
So there was also an abandonment claim.

[00:20:01] Speaker 04:
And it was a claim that the alleged marks were ornamental and did not function as trademarks.

[00:20:07] Speaker 04:
There would be two additional claims that would be addressed by the board.

[00:20:10] Speaker 02:
So the board never got to the abandonment claim?

[00:20:13] Speaker 02:
Correct, Your Honor.

[00:20:15] Speaker 05:
I want to go back to your argument about shipping would make a difference.

[00:20:19] Speaker 05:
Had the church shipped the two hats, the outcome would be different.

[00:20:26] Speaker 05:
How can that be under Larry Harmon, for example, where it didn't involve, these were services at a restaurant near the border, near the state border, and nothing crossed state lines.

[00:20:39] Speaker 05:
But yet that was found to be used in commerce, or services in commerce.

[00:20:44] Speaker 04:
Well, Your Honor, there Horan found that they were, although the court there said that there was no threshold, there was much more evidence to show that there was an effect on interstate commerce.

[00:20:54] Speaker 04:
I believe the court there said that there was 15% of customers that went to, I think it was the Bozos restaurant.

[00:21:02] Speaker 04:
It's just quantity.

[00:21:03] Speaker 04:
But there were additional facts, Your Honor.

[00:21:05] Speaker 04:
There were also, there were publications that were published in other states.

[00:21:12] Speaker 04:
publicizing the Bozo's restaurant.

[00:21:14] Speaker 04:
So there are other factors that the court also relied on to show that there was a direct effect on interstate commerce.

[00:21:21] Speaker 03:
That's just additional evidence.

[00:21:25] Speaker 03:
If Congress does this in all kinds of statutes, it can regulate a restaurant that may only serve one out of state customer in its entire history, but they still have to abide with all the civil rights laws.

[00:21:40] Speaker 03:
They still have to abide by all the other federal statutes that were passed under the Commerce Clause, even if they only have ever had one customer.

[00:21:49] Speaker 03:
frankly, they don't even have to have one out-of-state customer.

[00:21:52] Speaker 03:
They just have to show that they engage in some kind of commerce that may affect it.

[00:21:57] Speaker 03:
It's really broad.

[00:22:00] Speaker 04:
Right.

[00:22:00] Speaker 04:
It is broad, but I don't think it's broad enough to capture, to basically change the law, which means that any... I think the PTO is the one that is trying to change the law.

[00:22:10] Speaker 04:
The law says that interstate commerce is, correct, commerce that's regulated by Congress

[00:22:17] Speaker 04:
So then you need to look to see what is use in commerce.

[00:22:20] Speaker 03:
Use in commerce is when, for goods, is when the goods, branded goods... See, the problem is I think you're trying to conflate the facts of this case with the definition of interstate commerce.

[00:22:32] Speaker 03:
But you have to concede that interstate commerce involves any incidents where somebody from out of state travels out of state and purchases a good.

[00:22:41] Speaker 03:
And then you look at the facts of this case.

[00:22:44] Speaker 03:
I mean, I know you have your evidentiary objections, but that's not really disputed here if we don't agree with you on that.

[00:22:51] Speaker 03:
So I don't see how you get anywhere.

[00:22:52] Speaker 03:
If this person was solely in state and bought this good solely at her church bookstore or whatever, didn't go out of state, then you might have a better case.

[00:23:04] Speaker 03:
But let's take it that evidence is undisputed.

[00:23:07] Speaker 03:
There's no dispute.

[00:23:08] Speaker 03:
She's an out of state customer.

[00:23:11] Speaker 04:
There's no case that I'm aware of which is held that simply just a sale to an out-of-state customer is sufficient to support a federal trademark registration.

[00:23:21] Speaker 04:
Not one case.

[00:23:23] Speaker 03:
These cases, the... You're saying that because we're in an odd position where you're arguing that the TTAB hasn't taken up as much authority as the statute has given it, I think.

[00:23:37] Speaker 03:
If the TTAB had said, this is interstate commerce,

[00:23:42] Speaker 03:
Would you be arguing that that's an improper definition of interstate commerce under the Supreme Court case law?

[00:23:55] Speaker 03:
I would be, because it really... In what case would you cite that one sale to an interstate customer is not sufficient

[00:24:04] Speaker 03:
for the reach of Congress's powers under the Commerce Clause?

[00:24:08] Speaker 04:
There has to be evidence showing that there was a direct effect on interstate commerce.

[00:24:13] Speaker 03:
Again, you're getting back into conflating the facts in the specific case with the reach of Congress's regulation.

[00:24:19] Speaker 03:
So could Congress have told the TTAB, you have power to regulate one sale to an out-of-state customer?

[00:24:26] Speaker 03:
Does Congress have that authority?

[00:24:28] Speaker 04:
Yes.

[00:24:30] Speaker 04:
I don't believe it's done that here.

[00:24:32] Speaker 04:
I think what the appellant wants to do here is basically say that any interstate sale, regardless if it's an out-of-state customer or an interstate customer, would be use in commerce, is what they want to do.

[00:24:44] Speaker 04:
And that's not the statute, Your Honor.

[00:24:46] Speaker 04:
The statute specifically requires that there be use in commerce or it could be an interstate sale that has an effect on interstate commerce.

[00:24:53] Speaker 04:
And the boards clearly said they didn't apply a diminutive standard.

[00:25:00] Speaker 04:
stated that under the evidence, substantial evidence, there was no factual showings made that there was any effect on interstate commerce.

[00:25:07] Speaker 04:
Okay.

[00:25:07] Speaker 04:
I think we understand that part.

[00:25:09] Speaker 02:
With respect to the check, Your Honor, so... You're out of time, but I'll let you address that since I asked the question to your opponent.

[00:25:19] Speaker 02:
Okay.

[00:25:19] Speaker 04:
So with respect to the check, so yeah, the check possibly could be considered a business record to show that there was actually a transaction made, but

[00:25:27] Speaker 04:
I think it was error by the board to admit the check as proof that this person lived in Wisconsin.

[00:25:35] Speaker 04:
We don't know who drew the check.

[00:25:36] Speaker 04:
There was no testimony indicating who drew the check.

[00:25:40] Speaker 04:
There was no testimony by the pellet's witness who indicated that it was actually Charlotte Howard who drew the check.

[00:25:48] Speaker 04:
How do we know whether or not the person who drew the check, maybe she did live in Wisconsin, but maybe those were old checks.

[00:25:54] Speaker 04:
There's nothing of record.

[00:25:55] Speaker 05:
Was the signature on the check Charlotte's signature?

[00:26:00] Speaker 04:
I'm assuming it is, Your Honor.

[00:26:01] Speaker 04:
But that could be an old check.

[00:26:03] Speaker 04:
There's nothing of record to substantiate to show that that was actually this person's current address.

[00:26:14] Speaker 02:
Anything else?

[00:26:15] Speaker 02:
That's it, Your Honor.

[00:26:20] Speaker 01:
OK, thank you.

[00:26:21] Speaker 01:
Just a couple of points.

[00:26:25] Speaker 01:
Gonzalez versus Reich makes it absolutely clear that the church was not required to show that this sale to Charlotte Howard had any effect on interstate commerce.

[00:26:34] Speaker 01:
And we have, in addition to Gonzalez, we've got Perez, even Wickard, where the Supreme Court has said, you can't excise as trivial individual instances that fall within a class of activity.

[00:26:50] Speaker 01:
And clearly, the sale to an out-of-state resident

[00:26:55] Speaker 01:
is commerce that Congress can regulate.

[00:26:58] Speaker 01:
And so because the sale of these two caps to Charlotte Howard was a sale to an out-of-state resident, it was a sale in commerce and falls within the Lanham Act and therefore qualifies the trademark for federal registration.

[00:27:13] Speaker 01:
There was no requirement to prove what effect that sale to Charlotte Howard had on interstate commerce.

[00:27:20] Speaker 01:
As to the check and the admission of the check, this is an abuse of discretion standard, a very high standard.

[00:27:28] Speaker 01:
Certainly the check itself is substantial evidence on which the Board could have found and did find that Charlotte Howard was an out-of-state resident.

[00:27:38] Speaker 01:
If there aren't any other questions, I did have one administrative matter.

[00:27:43] Speaker 01:
We inadvertently omitted the case site on page 12 of our opening brief for a blocked site.

[00:27:49] Speaker 01:
should have been cited to Gonzales versus Reich, 545 U.S.

[00:27:53] Speaker 01:
1 at pages 17 and 20.

[00:27:55] Speaker 01:
We appreciate that.

[00:27:58] Speaker 01:
Thank you very much.

[00:27:58] Speaker 01:
Thank you very much, sir.

[00:28:00] Speaker 02:
That concludes today's arguments.

[00:28:01] Speaker 02:
This court remains in recess.