[00:00:08] Speaker ?:
Thank you.

[00:00:40] Speaker 03:
Ms.

[00:00:40] Speaker 03:
Norton.

[00:00:41] Speaker 03:
Good morning, Your Honors.

[00:00:44] Speaker 03:
You may proceed.

[00:00:45] Speaker 00:
Thank you.

[00:00:47] Speaker 00:
May I please support Heather Norton on behalf of Appellants.

[00:00:50] Speaker 00:
Your Honors, the board in the proceeding below committed reversible error and abused its discretion when it failed to consider exhibits for the truth of the matter contained therein.

[00:01:00] Speaker 01:
Do you agree that your initial submission did not establish standing or entitlement or the like?

[00:01:07] Speaker 00:
I agree that the

[00:01:09] Speaker 00:
that the evidence was not authenticated in the initial submission.

[00:01:13] Speaker 01:
So if we were just looking at the initial submission, you agree that you're not entitled to the trademark?

[00:01:19] Speaker 00:
I do have to agree to that, Your Honor.

[00:01:22] Speaker 00:
Due to unfortunate circumstances, the

[00:01:26] Speaker 00:
The evidence was authenticated and later submitted for our declaration.

[00:01:31] Speaker 00:
And it's not a position that any litigant wants to find itself in.

[00:01:33] Speaker 00:
But it is important that appellants here have a chance to have their case heard on the merits.

[00:01:40] Speaker 01:
And the board, in ruling that- But you did have a chance to heard your case on the merits.

[00:01:46] Speaker 01:
You were allowed to submit evidence which was deficient.

[00:01:51] Speaker 00:
And you lost.

[00:01:52] Speaker 00:
Your Honor, I would submit that the evidence wasn't deficient and that the board

[00:01:55] Speaker 00:
made reversible errors.

[00:01:57] Speaker 00:
For example, it abused its discretion when it found, I would first like to direct you to a statement that the board made on page seven of its opinion, which is also appendix page seven, in which it clearly stated that the Ferrara Declaration also, and I emphasize the word also, also contained overmints regarding the exhibits previously submitted.

[00:02:17] Speaker 00:
And then in two pages later, on pages nine and 10,

[00:02:20] Speaker 00:
It seems to have forgotten that entirely, and it characterizes the entire declaration as consisting of rebuttal information.

[00:02:29] Speaker 00:
And it says that a small subcategory of that was proper rebuttal testimony, but most of it was improper.

[00:02:37] Speaker 00:
said that it was improper and because rebuttal, and because it's also said that the evidence was withheld until the reply, it said it would not consider the Farrar declaration, and it would not consider the exhibits attached to the attorney declaration.

[00:02:54] Speaker 03:
Well, you acknowledged in footnote two on page three of the opening brief that you didn't respond to Appley's objection to the Farrar

[00:03:07] Speaker 03:
Declaration.

[00:03:08] Speaker 03:
You say no further response was required.

[00:03:12] Speaker 03:
Haven't you waived all your arguments as to whether the TTAB properly rejected?

[00:03:18] Speaker 00:
No, Your Honor.

[00:03:19] Speaker 00:
The reason why, and it's explained in that footnote, the reason why a further response wasn't made to the TTAB

[00:03:28] Speaker 00:
at that time was that we had already preempted those arguments.

[00:03:31] Speaker 00:
We had already explained why the evidence, when we were submitting the evidence, we already explained in that reply brief why the evidence was admissible and proper and should be considered.

[00:03:41] Speaker 00:
And so the decision was made not to burden the TTAB with a rehashing of the same arguments.

[00:03:49] Speaker 00:
But the board clearly contradicted itself when it acknowledged first that there was

[00:03:54] Speaker 00:
there were statements made averring the declarations, sorry, the exhibits in the opening brief, and then proceeded to forget that it had made that statement and characterize the whole declaration as one of a rebuttal declaration.

[00:04:16] Speaker 00:
And, Your Honors, I would also note that the cases cited in that passage... Excuse me.

[00:04:23] Speaker 03:
You haven't got the clock.

[00:04:26] Speaker 00:
Go ahead.

[00:04:28] Speaker 00:
Speaking of the clock, I would like to reserve for rebuttal.

[00:04:34] Speaker 00:
The cases that the TTAB cited and that Appellee cited, the American Meat Institute cases and progeny are relating to evidence that was in fact withheld until the reply.

[00:04:48] Speaker 00:
And this isn't that case here.

[00:04:50] Speaker 00:
The evidence was submitted with the opening brief.

[00:04:53] Speaker 00:
And appellees had a full opportunity to respond to it and, in fact, did respond to it substantively.

[00:04:59] Speaker 00:
And then those cases simply just don't apply when this is a case where they did, in fact, have the evidence and were able to respond to it.

[00:05:11] Speaker 00:
Unlike those cases, this is similar to the case in Jackson, which was cited in appellee's briefings in which

[00:05:20] Speaker 00:
A very similar thing happened.

[00:05:21] Speaker 00:
The exhibits were submitted with the opening brief and were not properly authenticated.

[00:05:26] Speaker 00:
and then were authenticated in a later submitted declaration.

[00:05:30] Speaker 00:
And the court admitted those and considered the evidence in full in order to truly decide the case on the merits.

[00:05:37] Speaker 00:
And the court, in that case, emphasized the long line of holdings and the strong precedent that a decision on the merits is much favored and is preferred.

[00:05:48] Speaker 00:
And so that case clearly shows that the error that the board made in ignoring

[00:05:56] Speaker 00:
overments relating to the opening brief was prejudicial and goes against Jackson and other cases that hold that cases should be decided on the merits.

[00:06:06] Speaker 00:
To the extent that the American Meat case and those cases have any bearing on this case, they really speak to fairness and they speak to the fact that all parties should have

[00:06:21] Speaker 00:
an opportunity to litigate their cases.

[00:06:24] Speaker 00:
And the concern is that if evidence is coming in on reply, then the other party won't have the chance to respond.

[00:06:30] Speaker 00:
But here, any unfairness actually flows the other way, because there is evidence that appellants are the senior users of the mark, that they have standing to bring this proceeding.

[00:06:41] Speaker 00:
And they should be able to have that fully considered, particularly when appellees did respond to that evidence.

[00:06:51] Speaker 00:
I would also like to discuss with Your Honors the errors made in the TTAB opinion regarding the rebuttal evidence.

[00:07:00] Speaker 00:
And that part of the opinion appears just not to be based in any reasonable basis, because it was limited to a time period, which is really an entirely arbitrary time period.

[00:07:11] Speaker 00:
The appellee in her sworn declaration stated that she

[00:07:18] Speaker 00:
checked the website, the wadsnob.com website, in August.

[00:07:22] Speaker 00:
She checked it periodically.

[00:07:24] Speaker 00:
She checked it in November.

[00:07:25] Speaker 00:
She checked it frequently, and that even as of December, there wasn't a live website.

[00:07:31] Speaker 00:
And those statements are demonstrably false.

[00:07:34] Speaker 00:
And the Ferrara Declaration did submit testimony and documentary evidence showing that those statements are false.

[00:07:42] Speaker 00:
The board agreed that those statements

[00:07:46] Speaker 00:
statements, those particular statements, were rightly rebutted by Ms.

[00:07:51] Speaker 00:
Ferrara, but then limited the rebuttal to this arbitrary time period, which wasn't the time period about which Appellee was testifying.

[00:08:00] Speaker 00:
Why the board picked that time period, it isn't clear, but it has no basis in the record.

[00:08:11] Speaker 00:
And there's no basis for which.

[00:08:13] Speaker 02:
Well, those were the dates that

[00:08:15] Speaker 02:
Ms.

[00:08:15] Speaker 02:
Sebastianelli indicated that she visited the website and saw that it wasn't active.

[00:08:20] Speaker 00:
She gave two examples.

[00:08:21] Speaker 00:
She also stated that she visited it in August and that she frequently visited it.

[00:08:31] Speaker 00:
Paragraphs 7 and 17 of her declaration.

[00:08:35] Speaker 00:
And this was addressed in the Reply Brief, Opposers Reply Brief.

[00:08:41] Speaker 02:
We don't have paragraph 7 in the record.

[00:08:44] Speaker 00:
I apologize for that, Your Honor, but appendix page 40, which is a page from appellant's reply brief responding to those statements, evidences, paragraph 7, where it says, applicant declared under oath that there was no active website on August 23.

[00:09:05] Speaker 00:
So the time period wasn't limited.

[00:09:08] Speaker 00:
Even in paragraph 17, which you do have, she says that she checked it frequently.

[00:09:12] Speaker 00:
And on those particular dates, it wasn't there.

[00:09:16] Speaker 00:
So she didn't say that she only checked it on those dates, or she didn't even say that she checked it between that time frame.

[00:09:21] Speaker 00:
Those were two particular dates in which she checked it, apparently, beginning in August when she reached out to appellants to inquire about a potential purchase of the domain.

[00:09:32] Speaker 00:
So again, that evidence.

[00:09:36] Speaker 00:
That rebuttal evidence excluding that greatly prejudiced my client in that that evidence in itself also shows that not only does she have standing, but she has priority abuse in the mark.

[00:09:51] Speaker 00:
And I'd just like to point your attention to a case that was cited in the briefing, the Martin B. Weaver case that says that the fact that evidence may have been offered

[00:10:06] Speaker 00:
in support of a case in chief does not preclude its admission in rebuttal.

[00:10:11] Speaker 00:
And in that case, the court emphasized that the court must exercise its sound discretion if it's going to exclude rebuttal evidence.

[00:10:19] Speaker 00:
And it's not sound discretion here to exclude rebuttal evidence that was directly contradicting, that was directly rebutting paragraphs saying that no website was live in August, that no website was live periodically when she checked up until December.

[00:10:43] Speaker 00:
So to finish here, I just want to emphasize that there are certain exhibits, A through D, F through H, I, J, N, and P, that were submitted with the opening brief.

[00:11:00] Speaker 00:
Again, this isn't evidence that was withheld until the reply.

[00:11:03] Speaker 00:
This was evidence that was submitted with the opening brief that was addressed in full by appellee in their opposition, that was authenticated, and the court

[00:11:11] Speaker 00:
committed an error when it simply declined to recognize or to rule on when it contradicted itself and first acknowledged that error and then characterized the brief as containing only rebuttal evidence and some of it was improper rebuttal evidence.

[00:11:32] Speaker 00:
So those are the points that I wanted to discuss with you today, Your Honors, if you have any questions.

[00:11:39] Speaker 00:
Thank you.

[00:11:39] Speaker 00:
Thank you.

[00:11:46] Speaker 04:
Good morning, Your Honor.

[00:11:47] Speaker 03:
Mr. Menker?

[00:11:48] Speaker 04:
May I please support?

[00:11:49] Speaker 04:
Yes.

[00:11:49] Speaker 04:
Your Honor, on behalf of Courtney Sebastianelli, the plan, the opposer in this case had an opportunity to present their case.

[00:11:57] Speaker 04:
They failed to establish priority or standing.

[00:12:01] Speaker 04:
They took a second bite of the apple, and the applicant objected to that late testimony, the late documents, and they didn't respond to our objection, evidentiary objection.

[00:12:14] Speaker 04:
They conceded it.

[00:12:15] Speaker 04:
They had a chance to appeal this to the district court, establish a new record.

[00:12:20] Speaker 04:
They didn't do that.

[00:12:21] Speaker 04:
They appealed it to hear the board.

[00:12:23] Speaker 04:
In the end, the board exercises discretion in establishing which evidence was admissible and what evidence was not admissible.

[00:12:30] Speaker 04:
And on the basis of the evidence properly, a record.

[00:12:32] Speaker 04:
They made their decision.

[00:12:33] Speaker 04:
And there's no question that the appellants don't argue that the board made the wrong decision.

[00:12:38] Speaker 04:
They just say it wasn't fair.

[00:12:43] Speaker 04:
Thank you, counsel.

[00:12:43] Speaker 04:
Thank you.

[00:12:48] Speaker 00:
Your Honor, first of all, with respect to that final statement, the appellants absolutely argued that this was the wrong decision.

[00:12:54] Speaker 00:
It's not simply a matter of fairness.

[00:12:56] Speaker 00:
It's a matter of abusing discretion and basing an order on factual errors.

[00:13:02] Speaker 00:
And it's a matter of having an opinion that doesn't have any reasonable basis.

[00:13:07] Speaker 00:
And so absolutely, there are reversible errors here.

[00:13:11] Speaker 00:
It was an error to characterize the entire Ferrara declaration as a rebuttal declaration despite having earlier recognized it as also containing a vermin regarding the initial exhibits.

[00:13:26] Speaker 00:
And it was an error to arbitrarily eliminate, eliminate

[00:13:29] Speaker 00:
eliminate certain of the statements made by appellee and not provide a reason why appellants could not respond to those statements regarding their evidentiary objections

[00:13:48] Speaker 00:
We absolutely did not concede those objections.

[00:13:51] Speaker 00:
As stated, there's a detailed explanation in the reply brief, along with the evidence of why it's proper and why it's necessary.

[00:13:59] Speaker 00:
In the lack of response, there is no set procedure in the TTAB for further response, and the lack of response cannot be construed as an objection.

[00:14:09] Speaker 00:
When the evidence is as a lack of objection,

[00:14:14] Speaker 00:
When the evidence is considered here, it's very clear that appellants do have standing and that they do have the prior use in the mark.

[00:14:23] Speaker 00:
So I would submit again that it's very important that their evidence be allowed to be considered so that they have their day in court and that the errors be reversed.

[00:14:33] Speaker ?:
Thank you, Chancellor.