[00:00:03] Speaker 01:
The first case for argument this morning is 15-1-4-3-2, in re Cordua, restaurants.

[00:00:10] Speaker 01:
Ms.

[00:00:11] Speaker 01:
King, whenever you're ready.

[00:00:21] Speaker 00:
Good morning.

[00:00:21] Speaker 00:
May it please the court?

[00:00:22] Speaker 00:
My name is Elizabeth King, and I represent Cordua restaurants in this appeal.

[00:00:27] Speaker 00:
If I may, I would like to reserve three minutes for rebuttal.

[00:00:30] Speaker 00:
Before I get started, I would just like the court to be aware, as we stated in our brief, that the outcome of this case has tremendous policy implications, not just for the appellant's mark and its rights in a 30-year mark that's been registered by the PTO three separate times and is protected by a registration under Section 14 of the Act, but for the legally equivalent mark for the same services, but also for many other services.

[00:00:57] Speaker 00:
whose names identify a feature of those services, including, as we've already notified, the Court of the Red Lobster case, where they've been ordered to disclaim lobster in connection with their restaurant services, despite acquired distinctiveness, and many other marks, including Pesci for restaurant services, Steak and Ale, Steak Frites, the Prime Rib, which are both mentioned in the Esquire magazine, and both are named for the signature dish in that restaurant.

[00:01:23] Speaker 02:
But those last ones are not necessarily the same as this, because they're compound marks.

[00:01:30] Speaker 02:
which would have to be considered as a whole.

[00:01:32] Speaker 02:
Correct, Your Honor, and we do... But, I mean, it just doesn't seem to me obvious that it necessarily carries over to that situation.

[00:01:39] Speaker 00:
Well, Your Honor, we believe that, for example, steak frites, which identifies a dish, is the same argument that the Board incorporated in its opinion.

[00:01:47] Speaker 02:
It's combining an English and a French word, and under a Princeton decision, we'd have to consider whether the mark as a whole was generic.

[00:01:55] Speaker 02:
I mean, I don't think it's such a...

[00:01:58] Speaker 02:
of clearly sweeping ruling as you're suggesting it is.

[00:02:03] Speaker 00:
OK.

[00:02:03] Speaker 00:
Well, thank you, Your Honor.

[00:02:04] Speaker 00:
I'll just move on to the two instances in which we believe that the board erred in applying the test on genericness.

[00:02:11] Speaker 00:
First, we believe that the board failed to apply the law on genericness pursuant to Marvin Ginn substituting a test for descriptiveness in place of genericness.

[00:02:20] Speaker 00:
And secondly, that they failed to analyze genericness and acquire distinctiveness based on the evidence of record.

[00:02:26] Speaker 00:
which includes the 321 registration protected under section 14 of the act a full month before the examining attorney submitted her brief on appeal.

[00:02:35] Speaker 02:
But the incontestability doesn't apply to genericness, right?

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

[00:02:40] Speaker 00:
In fact, as this court noted in Merrill Lynch, incontestability only confers upon the registrant the incontestable right to use a mark in commerce, which of course doesn't apply in the case of genericness.

[00:02:51] Speaker 00:
But what the relevancy

[00:02:55] Speaker 00:
of the 1057B claim of ownership of that prior registration is evidentiary.

[00:03:01] Speaker 00:
Because as the Supreme Court noted in the B&B hardware decision, Your Honor, a 1057B is prima facie evidence of the mark's validity.

[00:03:12] Speaker 00:
So once the application was filed, making a claim under 1057B for the ownership of the 321 registration, it was at that point put into the record.

[00:03:24] Speaker 00:
And since that mark is the standard character iteration of the stylization of churroscos for the identical services, it was incumbent upon the office to consider that registration as evidence for registrability of this mark.

[00:03:39] Speaker 00:
And had the office done that, they would have noted from the record contained in that file that churroscos is not a churroscaria, which goes directly to the heart

[00:03:51] Speaker 00:
of the genericness analysis.

[00:03:53] Speaker 02:
So in your theory, pizzas could be registered as a mark for a restaurant, because the plural of pizza in Italian is pizza.

[00:04:03] Speaker 00:
No, Your Honor, that's actually not our position at all, because for several reasons.

[00:04:07] Speaker 00:
First, we believe that, well, as a preliminary matter, I would just note that pizza is obviously a noun, and the pluralization is a noun.

[00:04:17] Speaker 02:
In this case... But the Italian for plural is pizza, right?

[00:04:22] Speaker 00:
Correct, Your Honor.

[00:04:23] Speaker 02:
So if you use pizzas under your theory, that would be okay.

[00:04:26] Speaker 00:
Well, actually, not necessarily, Your Honor, if I may continue to answer your question, because I think I can explain where the flaw in that reasoning is.

[00:04:35] Speaker 00:
As the PTO has acknowledged in their brief at 11, churrasco is primarily an adjective for a style of cooking.

[00:04:42] Speaker 00:
Churrascos is a coinage.

[00:04:46] Speaker 00:
As Your Honor notes, I'm sure has noted, that in the Esquire magazine, that there is reference to the Churrasco steaks prepared in the Churrasco style as Churrascos, as a noun for steaks prepared in the Churrasco style.

[00:05:01] Speaker 00:
So under the Marvin Gintest, using Your Honor's example of pizzas, the question would be whether or not the public primarily uses or understands pizzas primarily to refer to the genus of restaurant services.

[00:05:16] Speaker 00:
Now, we can expect, due to the ubiquitous understanding of the word pizzas, that it might be that there is evidence that shows that the public understands pizzas, primarily to refer to the genus of restaurant services.

[00:05:31] Speaker 00:
But let's say there wasn't that evidence.

[00:05:34] Speaker 00:
Then does that mean pizzas is registrable for a restaurant?

[00:05:36] Speaker 00:
Well, I would submit that it's not.

[00:05:38] Speaker 00:
And the reason goes to exclusivity as opposed to genericness.

[00:05:43] Speaker 00:
Which again, is an example of how those two principles that factor into registrability have been conflated in this case.

[00:05:50] Speaker 00:
Because it would very likely be evidence, overwhelming evidence, of third party usage of pizzas in the names of restaurants.

[00:06:01] Speaker 00:
Regardless of whether or not it could be established through evidence that the public had a complete understanding of pizzas as referring primarily to restaurant services.

[00:06:11] Speaker 00:
And so it would be substantial exclusivity that would ultimately ban the use of pizzas in connection with that type of restaurant or any type of restaurant, as opposed to a genericness analysis.

[00:06:24] Speaker 00:
Because Marvin Ginn is narrowly tailored and very tightly tailored to only apply to instances where there is clear evidence that the public understands the term primarily to refer to the genus itself.

[00:06:40] Speaker 00:
as opposed to goods featured by the genus.

[00:06:45] Speaker 00:
And in this case, Your Honor, my four points on that are, first, they failed to analyze the genus correctly.

[00:06:52] Speaker 00:
Secondly, the PTO failed to apply this court's test on ascertaining the focus.

[00:06:57] Speaker 02:
But maybe they have evidence that Churrascos is used to refer to Brazilian steak restaurants, right?

[00:07:04] Speaker 00:
Your Honor, the evidence that they submitted out of 195 Lexus searches

[00:07:09] Speaker 00:
only for the phrase churrasco restaurants, not for the marked churrascos, which as this court has already stated, of course, is you are supposed to show that the mark as filed.

[00:07:22] Speaker 00:
For example, in the Duoprost decision, where the mark was snapped with an exclamation point, that this court held the PTO had dissected the mark and had knocked off the exclamation point in failing to ascertain descriptiveness.

[00:07:35] Speaker 00:
Or for example, in steel building.

[00:07:37] Speaker 00:
where this court reaffirmed in the Princeton-Vanguard case noted that there was not evidence that the public, when the term was compounded together, understood the compound iteration of steel building to be the equivalent of steel building as two words or steel buildings as two words.

[00:07:57] Speaker 02:
So it's very, very important that, in fact, their life's- If they were using churrasco instead of churrascos, you'd agree that the decision was right?

[00:08:07] Speaker 00:
Not necessarily, Your Honor, because it would depend on, well, for a few reasons.

[00:08:14] Speaker 00:
First of all, because the evidence, when you look at the 10, there are 10 articles out of 195 that are missing.

[00:08:22] Speaker 00:
And there's no search for Churroscos in the record at all, which gives strong indication under this court's ruling in Merrill Lynch that, in fact, those missing articles.

[00:08:32] Speaker 00:
But you're talking about something else.

[00:08:33] Speaker 02:
My question is, if they

[00:08:34] Speaker 02:
If the mark were Churrasco without the S, if you would read it, it would not be registrable because it would be generic.

[00:08:42] Speaker 00:
If the mark were Churrasco without the S, and as illuminated, as this Court has stated under Rita Selvier, that Churrasco's was actually offering a Churrascaria, then I think potentially there would be evidence to show that.

[00:08:57] Speaker 02:
But what we have here... The very only thing that saves you is the addition of the S.

[00:09:00] Speaker 00:
Well, it's not a minor issue, actually.

[00:09:05] Speaker 00:
It's not actually the only thing that saves us.

[00:09:07] Speaker 00:
And the addition of the S is not incidental.

[00:09:09] Speaker 00:
And there are two reasons why.

[00:09:11] Speaker 00:
First, this court has stated in Rita Selvier that the issue there on appeal was, of course, for the marketlawyers.com.

[00:09:20] Speaker 00:
And the recitation of services was information exchange for legal services.

[00:09:27] Speaker 00:
which the court then looked behind the stated genus to determine what the appellant was actually doing in that instance.

[00:09:35] Speaker 00:
Now, keeping that backdrop in mind, there's 10 articles, but seven of them are instructive in the record for the Lexus articles.

[00:09:45] Speaker 00:
Those seven articles indicate the type of restaurant is, beyond doubt, a churroscaria or a rhodesio.

[00:09:52] Speaker 00:
They mention Brazilian steak houses,

[00:09:56] Speaker 00:
And the Flesh Trade article at 118 of the appendix specifically says, the cooking style is churrasco, and the restaurants are called churrasquerias.

[00:10:06] Speaker 00:
So utilizing the reasoning in Reed, where the question is, well, if the mark were churrasco, for example, and the services were churrasquerias.

[00:10:17] Speaker 02:
Would state be registerable for restaurants?

[00:10:21] Speaker 00:
Probably not because steak is actually only exclusively a noun and a species.

[00:10:29] Speaker 00:
Whereas churroscoes is a coinage of steak prepared a certain way because the preparation style is churrosco.

[00:10:38] Speaker 00:
And the S on the end is a pluralization of that adjective.

[00:10:42] Speaker 01:
Can I ask you, what about that Esquire article, which uses the word charaskos at least twice to refer to, for example, it says Michael Cordua brought charaskos to Houston 20 years ago.

[00:10:55] Speaker 01:
It's not talking about the restaurant.

[00:10:58] Speaker 01:
Correct.

[00:10:58] Speaker 01:
It's talking about that particular kind of steak.

[00:11:01] Speaker 01:
Yes, it is.

[00:11:03] Speaker 01:
With the S, it's plural.

[00:11:04] Speaker 01:
Why isn't that evidence of generality?

[00:11:07] Speaker 00:
It absolutely is evidence of genericness for stakes.

[00:11:10] Speaker 00:
And if, in fact, and I would like to actually refer the court to the PTO's brief at 32 and 33 and 34, where they actually discuss this issue.

[00:11:21] Speaker 00:
If, in fact, Churrosco's had applied to register Churrosco's for stake, that would be very germane to the genericness analysis, because obviously Churrosco's stake is a type of stake, and therefore

[00:11:35] Speaker 00:
generic for those goods.

[00:11:37] Speaker 02:
But the issue on appeal here is that Churrosco's has applied to register Churrosco's in connection with a full... So you're saying that the word steak could be used for restaurants because it's a word that applies to a particular cut of meat and not to restaurants?

[00:11:53] Speaker 02:
Is that your theory?

[00:11:54] Speaker 00:
No, no, no, not at all, Your Honor.

[00:11:56] Speaker 02:
It would always depend on whether or not the... What's the difference between registering steak and registering Churrosco?

[00:12:03] Speaker 02:
Forget about the S for the moment.

[00:12:05] Speaker 00:
OK, well, the difference between registering steak, from an evidentiary standpoint, of course, under GIN, it would depend on what the evidence showed the public used and understood that term and if it primarily referred to the genus of restaurant services.

[00:12:21] Speaker 00:
Having said that, the difference there is, of course, that steak is primarily a noun.

[00:12:28] Speaker 00:
Churrasco is primarily an adjective for a style of cooking.

[00:12:32] Speaker 00:
It is an expansive adjective with very many meanings.

[00:12:36] Speaker 00:
The other difference is that steak is a set species of food, whereas churrosco, as a noun for steak prepared that way, is a subspecies.

[00:12:47] Speaker 00:
And there's really no evidence in the record that the public would understand the term churroscos, which is actually the mark, to refer primarily to the genus of restaurant services.

[00:13:00] Speaker 00:
And going back to the court's analysis in Reed, the court stated, for example, as I mentioned, the recitation of services in Reed was information exchange about legal services.

[00:13:14] Speaker 00:
And the court said it was appropriate to illuminate what was meant by that by looking at what the appellant was actually doing.

[00:13:20] Speaker 00:
And what it turned out was that the appellant's services were oriented to lawyers, and therefore that was considered to be

[00:13:26] Speaker 00:
the paramount aspect of those services, and as such, generic for those website services.

[00:13:32] Speaker 00:
In this case, upon examining the record to determine what Chiroscos is doing, it is abundantly clear, and I don't think anybody is arguing, that Chiroscos is not a Chiroscoria.

[00:13:44] Speaker 00:
And therefore, the mark as used by the appellant is not being used in a generic fashion at all.

[00:13:51] Speaker 00:
even if this court believes that you're up.

[00:13:54] Speaker 02:
But a steak is not a restaurant either.

[00:13:55] Speaker 02:
So under that theory, you could register steak.

[00:13:59] Speaker 00:
Well, Your Honor, it would depend under this court's test in hotels, lawyers.com, mattress.com, whether or not the word sought to be registered was the focus of the genus, as illuminated by what the appellant was offering.

[00:14:16] Speaker 00:
For example, if an appellant was a Japanese sushi restaurant,

[00:14:21] Speaker 00:
and they wanted to register the name Tacos, under Marvin Ginn, it would depend on whether or not the evidence showed that the public primarily understood the mark as referring to the genus of restaurant services.

[00:14:38] Speaker 00:
If it did not, then the second issue would be whether or not exclusivity would be attainable for a term that was ubiquitously used by third-party competitors

[00:14:50] Speaker 00:
under the substantially exclusive provision of the Lanham Act, which also operates to bar trademark rights if a term is ubiquitously used and diluted by competition, regardless of genericness.

[00:15:01] Speaker 01:
You almost exceeded your rebuttal time.

[00:15:04] Speaker 01:
We still have two minutes.

[00:15:06] Speaker 01:
We'll be here from the other side.

[00:15:07] Speaker 00:
Thank you.

[00:15:07] Speaker 00:
Thank you.

[00:15:14] Speaker 03:
Good morning, Your Honors.

[00:15:15] Speaker 03:
May it please the court?

[00:15:16] Speaker 03:
I just want to start by

[00:15:18] Speaker 03:
pointing out one thing about the use of the S and the allegation or the contention that Churrascos is a coinage.

[00:15:25] Speaker 03:
The application itself defines the plural word Churrascos as meaning barbecue.

[00:15:31] Speaker 03:
So the appellant itself uses and admits that it's a word in the very application we're looking at.

[00:15:39] Speaker 02:
What is the line here and how are we supposed to deal

[00:15:46] Speaker 02:
with other cases which are similar.

[00:15:49] Speaker 02:
I understand the PTO's position with respect to this mark and this context, but suppose Churrasco were used for a vegetarian restaurant.

[00:15:59] Speaker 02:
Would it be permissible to register that and could you include a disclaimer that would make it registrable?

[00:16:07] Speaker 02:
Where are we on something like that?

[00:16:10] Speaker 03:
Well, I think in a case like that,

[00:16:13] Speaker 03:
The short answer to the first part of your question is no, it would not be registrable, because a vegetarian restaurant is a category of restaurants, and someone who came in for restaurant services with a vegetarian-related name, or the name vegetarian.

[00:16:28] Speaker 03:
No, I'm saying churrasco for a vegetarian.

[00:16:30] Speaker 02:
Oh, churrasco.

[00:16:30] Speaker 03:
Yeah.

[00:16:31] Speaker 03:
They would be able to change from vegetarian to serving churrascos immediately because it would be- Could you include that with a disclaimer?

[00:16:39] Speaker 03:
You can't disclaim

[00:16:41] Speaker 03:
the genericness of the very thing that you are seeking to register.

[00:16:47] Speaker 03:
There's virtually nothing left at that point.

[00:16:50] Speaker 03:
So it is possible, I suppose, that if the goods and services were defined so as to make clear that it was not going to cover any sort of meat preparation, it's possible that in that sort of situation it would be okay.

[00:17:09] Speaker 01:
So how do you respond to the argument being made that this is like a situation where the word taco restaurant is used for a Japanese restaurant?

[00:17:19] Speaker 03:
That's essentially the same sort of a hypothetical.

[00:17:23] Speaker 01:
How do you distinguish the present case from that?

[00:17:27] Speaker 03:
Well, the present case is what they're contending here is that they're not a true

[00:17:34] Speaker 03:
churrasco restaurant, which they define narrowly as a churrascaria serving Brazilian food.

[00:17:40] Speaker 03:
And it doesn't matter that they're not a true churrascaria in that limited sense because they are seeking a broad registration for restaurant services.

[00:17:50] Speaker 03:
And they could become that immediately upon getting the registration and then use that term churrascos to keep people who are, in fact, grilling churrascos or are a churrascaria from using that mark.

[00:18:03] Speaker 02:
in a descriptive sense.

[00:18:05] Speaker 02:
I think what you're saying is that in the taco example and in the vegetarian restaurant example that the problem is that they have a registration which would permit them to use the taco to cover a Mexican restaurant or the churrasco to cover a restaurant serving churrasco but there's no way around that with a disclaimer which would say

[00:18:33] Speaker 02:
where we disclaim the use of this mark for, in the case of the taco, for a Mexican restaurant, Mexican themed restaurant or something like that.

[00:18:43] Speaker 03:
They can't do that?

[00:18:45] Speaker 03:
Well, not in the form of a disclaimer.

[00:18:48] Speaker 03:
I think that would have to come, if at all, in the goods or goods and services identification.

[00:18:54] Speaker 03:
The disclaimer is really to disclaim rights in a particular

[00:18:57] Speaker 03:
aspect of the mark, but I think if you're excluding the particular services, then it's theoretically possible.

[00:19:03] Speaker 02:
So what you'd do is you'd say for restaurants serving meat or something like that.

[00:19:12] Speaker 02:
You'd limit it that way by the scope of the claim with respect to the marks?

[00:19:20] Speaker 03:
Is that the way you'd do it?

[00:19:21] Speaker 03:
Yes.

[00:19:22] Speaker 03:
I mean, if they wanted to use Churrascos,

[00:19:24] Speaker 03:
for a vegetarian restaurant that excluded meat.

[00:19:28] Speaker 03:
Right.

[00:19:28] Speaker 03:
They could put in the goods identification restaurant services excluding the service of meat.

[00:19:36] Speaker 03:
That's permissible to do that.

[00:19:37] Speaker 03:
You don't have to use standard descriptor.

[00:19:41] Speaker 03:
No.

[00:19:41] Speaker 03:
There can be limitations in the goods and services ID to make clear that you're within a subgroup of a broader category.

[00:19:48] Speaker 03:
I see.

[00:19:49] Speaker 03:
Okay.

[00:19:52] Speaker 03:
So here what we have, basically, there's no dispute.

[00:19:55] Speaker 03:
Everyone agrees that restaurant services, in the broad sense, is the genus.

[00:20:00] Speaker 03:
The dispute here is about the second part of the Marvin Ginn test.

[00:20:03] Speaker 03:
And what that is, is whether the public understands the term to refer to the genus of restaurant services.

[00:20:09] Speaker 03:
And here what we have are two types of evidence that show that the public understands it to refer to the genus.

[00:20:16] Speaker 03:
The first is that churroscarias, and I think they would agree with this,

[00:20:21] Speaker 03:
subcategory of restaurants.

[00:20:25] Speaker 03:
And they're called, generally called by people in this country, churrasco restaurants.

[00:20:28] Speaker 03:
Whether or not that's the technical term or not, that's how people understand it.

[00:20:34] Speaker 03:
And this court has, in other cases, held that when you have a term that is generic for a particular subcategory within a broader category that's claimed in the application, it can be generic.

[00:20:47] Speaker 03:
And thinking about the Matchbox case,

[00:20:50] Speaker 03:
the preformed case and the pasteurized case, which were cases we cited in our brief.

[00:20:55] Speaker 03:
The second way that it's, and that's, there's no dispute as to whether or not people call it churrasco restaurants.

[00:21:01] Speaker 03:
They do, and there are ten articles, as counsel said.

[00:21:04] Speaker 03:
The other is the lawyers.com and hotels.com and mattress.com cases, where another way you can show that a term is generic is if it defines a key aspect of declaimed services.

[00:21:18] Speaker 03:
And here, their own menu shows that it's a key aspect of the services.

[00:21:23] Speaker 03:
They call it their signature dish.

[00:21:25] Speaker 03:
They conceded to the TTAB that's the specialty of the house.

[00:21:29] Speaker 03:
And for those reasons, and also the Esquire Magazine shows that they've been lauded for this particular dish.

[00:21:37] Speaker 03:
So for those two reasons, and those facts are undisputed,

[00:21:40] Speaker 03:
This mark is generic.

[00:21:43] Speaker 02:
Well, what if it weren't the signature dish, but it was just one of 16 different dishes on the menu?

[00:21:52] Speaker 02:
I thought what you were saying earlier was that as long as they're serving meat or churros, that they couldn't have the mark whether it was a signature dish or not.

[00:22:07] Speaker 02:
Am I misunderstanding?

[00:22:09] Speaker 03:
No.

[00:22:09] Speaker 03:
If, for example, the mark was lettuce, all restaurants, I would think, serve lettuce in some form, either as a garnish or something that's shredded on some particular dish.

[00:22:22] Speaker 03:
It's not really, in any sense, the key aspect.

[00:22:26] Speaker 03:
So for this independent test of whether or not something is a key aspect of a service, I think lettuce would be something that would be difficult to say is generic for restaurant services.

[00:22:36] Speaker 03:
whether or not it was a vegetarian restaurant or a meat restaurant.

[00:22:40] Speaker 03:
So you could register lettuce for a restaurant?

[00:22:43] Speaker 03:
I think you could register lettuce for a restaurant.

[00:22:47] Speaker 02:
Because it's not descriptive of what they're serving?

[00:22:52] Speaker 03:
It might be descriptive of one of the ingredients that they do use, but I don't think it would be generic in the sense that it's a category of restaurants or, as in this case, a key aspect of a restaurant.

[00:23:04] Speaker 02:
I'm sorry?

[00:23:05] Speaker 02:
It wouldn't be understood by the public as a category of restaurant.

[00:23:08] Speaker 02:
That's right.

[00:23:09] Speaker 02:
That's right.

[00:23:15] Speaker 03:
If Your Honor's have no further questions.

[00:23:17] Speaker 01:
Thank you.

[00:23:29] Speaker 00:
Your Honor's questions illustrate perfectly why the 321 registration was not taken into account.

[00:23:34] Speaker 00:
It is beyond dispute that Churrosco's is not a Churroscaria.

[00:23:40] Speaker 00:
And as Solicitor Casagrande has acknowledged, the recitation of services could be amended to exclude Churroscarias and Rhodesios, which would therefore absolutely take the mark outside the realm of genericness for these types of services.

[00:23:58] Speaker 02:
Well, I don't think that's their position.

[00:23:59] Speaker 00:
Well, it may not be their position, but if their position were adopted by this court, then if a steakhouse specialized in a chocolate souffle dessert and called it their signature dish, and they named themselves chocolate souffle or just souffle, that would be generic for restaurant services too, because it identifies an item that's a signature dish.

[00:24:19] Speaker 00:
And their argument in their brief has 100% been oriented around a signature dish.

[00:24:24] Speaker 00:
Now, this court has already spoken to the issue in the Omega case.

[00:24:28] Speaker 00:
which interestingly, the board cited as defense of disregarding the 321 registration as any evidentiary value at all.

[00:24:38] Speaker 00:
And in Omega, this court stated that the PTO has the right to require an amendment to the recitation of services in order to avoid future conflict.

[00:24:49] Speaker 00:
And in the Omega case, of course, the issue on appeal was whether or not the PTO had collaterally attacked prior registrations for Omega

[00:24:57] Speaker 00:
that were registered for a broad recitation of goods chronographs.

[00:25:01] Speaker 00:
And the PTO was required, even though that was in the TMID manual and allowed, the PTO was requiring a narrower recitation.

[00:25:09] Speaker 00:
And what this court wrote at the end of its opinion is that the PTO had assured the court that by requiring Omega to adopt a narrower specification, that it would have no impact on their prior registrations.

[00:25:22] Speaker 00:
Now obviously, they can't make that claim here.

[00:25:24] Speaker 00:
Because what they've done is nullified a prior registration, even though that registration was put into evidence by us and by the PTO in the 2F recommendation that we amended 2F.

[00:25:35] Speaker 00:
So I see I'm running out of time.

[00:25:36] Speaker 00:
May I briefly conclude?

[00:25:37] Speaker 00:
Sure.

[00:25:38] Speaker 00:
OK.

[00:25:38] Speaker 00:
And so therefore, we believe the proper order from this court would be to remand back to the PTO

[00:25:47] Speaker 00:
requiring a recitation of services amendment, excluding churroscarias and rhodesias from the ID, as opposed to treating this as a gotcha game that potentially blows up a 30-year-old trademark protected by an incontestable registration that's also protected under Section 14 of the Act.

[00:26:05] Speaker 02:
Thank you.

[00:26:05] Speaker 01:
Thank both counsel.

[00:26:06] Speaker 01:
The case is submitted.