[00:00:00] Speaker ?: Thank you very much. [00:00:24] Speaker ?: Thank you. [00:00:40] Speaker 00: Thank you. [00:01:06] Speaker ?: uh... uh... [00:01:33] Speaker 00: I don't know if you can hear me. [00:01:58] Speaker 00: All rise. [00:02:25] Speaker 00: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:02:30] Speaker 00: God save the United States and its honorable court. [00:02:33] Speaker 03: Thank you. [00:02:33] Speaker 03: Please be seated. [00:02:34] Speaker 03: Good morning, all. [00:02:36] Speaker 03: Before we begin our routine business this morning, I'll turn over to Judge Schall for a motion. [00:02:42] Speaker 03: Thank you, Chief. [00:02:43] Speaker 02: Thank you. [00:02:44] Speaker 02: Yes, I have a motion. [00:02:46] Speaker 02: It won't be lengthy, but nevertheless, it's an important one. [00:02:49] Speaker 02: I'm moving the admission of my law clerk. [00:02:55] Speaker 02: I move the admission of Joseph M. Schaffner, who is a member of the bar and is in good standing with the highest court of Virginia. [00:03:05] Speaker 02: I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications." [00:03:11] Speaker 02: I will just add that those are the magic words that sort of have to be spoken to get everything done. [00:03:17] Speaker 02: I will just add a tiny bit of gloss in saying that Joe has been an excellent clerk this year, been of invaluable assistance to me. [00:03:25] Speaker 02: and a wonderful friend to have in chambers. [00:03:27] Speaker 02: So I move his admission. [00:03:31] Speaker 01: Any motion of Judge Shaw is well supported. [00:03:37] Speaker 03: Well, I'm delighted to grant the motion. [00:03:39] Speaker 03: Congratulations. [00:03:41] Speaker 00: Please raise your right hand. [00:03:43] Speaker 00: Do you solemnly swear that you will support yourself as an attorney and counselor of this court, uprightly and according to law, and that you will support the Constitution of the United States of America? [00:03:53] Speaker ?: I do. [00:03:53] Speaker ?: I do. [00:03:54] Speaker ?: Congratulations. [00:03:58] Speaker 03: The first case for argument this morning is 161507, In Re, I Am, Symbolic. [00:04:08] Speaker 03: Ms. [00:04:08] Speaker 03: Petrini? [00:04:09] Speaker 05: Good morning. [00:04:13] Speaker 05: There's two issues in this case. [00:04:14] Speaker 05: One is what's the effect of the subject matter limitation on the identification of goods. [00:04:20] Speaker 05: We have three applications here, one class 3, 9, and 14. [00:04:24] Speaker 05: And is that subject matter limitation meaningless? [00:04:28] Speaker 05: And the subject matter limitation is all goods are associated with William Adams, professionally known as Will.i.am. [00:04:37] Speaker 05: The second issue is can't- That doesn't show up on the mark. [00:04:41] Speaker 01: And when people look at a product with that mark and compare it with the identical mark for virtually identical goods, there certainly is a likelihood of confusion. [00:04:53] Speaker 05: Well, I would disagree with that because no limitations that are placed in a registration are not necessarily before the consumer. [00:05:03] Speaker 05: For example, in the M2 software case, it was limited to our programming language. [00:05:11] Speaker 05: That is not necessarily on the products themselves. [00:05:14] Speaker 05: And what we've introduced evidence of in terms of our use for IM for clothing [00:05:20] Speaker 05: is that Mr. Adams is very much associated with the products. [00:05:24] Speaker 05: He is seen wearing the products. [00:05:25] Speaker 05: There are quotes from Mr. Adams that help sell the products. [00:05:30] Speaker 05: He's in the look books, the interviews, in the press about his clothing line, the IM clothing line, which according to the examiner, by the way, class 25 is related to 3, 9, and 14 based on the third party registrations that he submitted in each of the applications. [00:05:49] Speaker 05: And Mr. Adams is, we've introduced evidence of consumers coming to stores specifically to see Mr. Adams to buy the clothing, evidence of comments from consumers, can't wait to buy that IAM clothing from Will.i.am. [00:06:04] Speaker 05: In other words, those items are only sold where he is? [00:06:09] Speaker 05: Not sold where he is, but it's promoted. [00:06:12] Speaker 05: It's the same, the language that I chose to put in the limitation. [00:06:16] Speaker 05: is directly from 1125A, the association part and the persona cases that go with that. [00:06:22] Speaker 05: So it's a broad concept. [00:06:25] Speaker 05: Consumers know when a product is associated with a celebrity or a sports figure or something along those lines. [00:06:30] Speaker 05: So to answer your question, when a consumer sees the IM products, like they see the IM clothing, they know that Mr. Adams is behind it. [00:06:40] Speaker 05: He's a designer of the clothing. [00:06:42] Speaker 05: He is the source of it. [00:06:43] Speaker 05: It's not just an endorsement type situation. [00:06:46] Speaker 05: So it's quite different on that. [00:06:48] Speaker 05: Once you look at that subject matter limitation, and the board just dismisses it as meaningless. [00:06:53] Speaker 05: What was meaningless, why did they enter it? [00:06:55] Speaker 05: Superfluous. [00:06:56] Speaker 05: Why are we entering things into the record that are unnecessary? [00:06:59] Speaker 05: But once you look at that subject matter limitation, it changes the nature of the goods. [00:07:04] Speaker 05: And one of the examples I gave in the briefing was it's different between a white t-shirt and a t-shirt that has Metallica on it or is associated with Metallica. [00:07:12] Speaker 05: is very different. [00:07:13] Speaker 05: A man will wear a white t-shirt under a dress shirt. [00:07:16] Speaker 05: He may not wear it out and about, but if he also likes Metallica, he's wearing a Metallica shirt or clothes that is associated with Metallica. [00:07:24] Speaker 05: It's a very different product once you put that subject matter limitation into it. [00:07:29] Speaker 05: And the board is required to line up what the goods say in the registration [00:07:38] Speaker 05: with the meaning of the mark. [00:07:40] Speaker 05: So when you do that, it creates a totally different meaning. [00:07:42] Speaker 05: The I am, which I think everyone would concede is a very common phrase and used in many different trademarks that we've seen. [00:07:51] Speaker 05: In class 14 alone, we have three I am marks all for jewelry. [00:07:55] Speaker 05: And we submitted evidence of 30 registrations with the class three application. [00:08:01] Speaker 05: Is that it changes the meaning of it? [00:08:02] Speaker 05: The I am, once you look at the association with will.im, [00:08:06] Speaker 05: Uh, that the meaning of I am in that context. [00:08:10] Speaker 02: Is that association conveyed to consumers? [00:08:14] Speaker 05: It's conveyed when it's the registration certificate is not presented to anyone for the application. [00:08:19] Speaker 05: It's conveyed in how the, um, uh, how the products are marketed, how they're sold. [00:08:25] Speaker 05: The retailers, the look book has Mr. Adams all over it. [00:08:28] Speaker 05: That's in the record. [00:08:29] Speaker 05: Uh, the press things that Mr. Adams does because he's such a well-known celebrity. [00:08:34] Speaker 05: He generates a lot of press. [00:08:36] Speaker 05: So when they talk about his IM clothing, they definitely tied, they being the press, tied everything to Mr. Adams. [00:08:44] Speaker 02: So somebody going into a store, a clothing store, would see these items of clothing. [00:08:53] Speaker 02: And what would they see there? [00:08:56] Speaker 02: I guess maybe I'm being a little bit duplicative of what Judge Lurie was asking, but what would they see there that would make them think, oh, this is from [00:09:04] Speaker 02: Mr. Adams is it? [00:09:05] Speaker 02: Mr. Adams. [00:09:06] Speaker 02: Mr. Adams. [00:09:08] Speaker 02: Or Will.i.am? [00:09:09] Speaker 05: Will.i.am. [00:09:10] Speaker 05: It's easier on that front. [00:09:13] Speaker 05: They would see that hang tags will have quotes on them in terms of the marketing material has quotes of Mr. Adams because he took a play on his name, William, and he put periods between it and any of that type. [00:09:27] Speaker 02: Oh, I see what you're saying. [00:09:29] Speaker 02: Say it's on a clothing rack. [00:09:31] Speaker 02: someone lifts the article of clothing off to make sure what the size is or the price, there'll be some identification or indication there? [00:09:39] Speaker 05: Right. [00:09:39] Speaker 05: I mean, most of the stuff is hang tags, and the marketing that we've seen on the Class 25 products all have some reference to Mr. Adams. [00:09:50] Speaker 05: So in order to know about the clothing, you see it, it's marketed, and then that draws you into the store. [00:09:55] Speaker 05: If you're just walking through the store and you're flipping through the rack, [00:09:58] Speaker 05: the clothing has hang tags on it. [00:10:00] Speaker 05: And usually when you have a higher end clothing, you have more articles of labeling on it and hang tags. [00:10:08] Speaker 05: So they wouldn't know. [00:10:09] Speaker 03: I don't know how circumstantial that is or even how common or how anecdotal that is. [00:10:18] Speaker 03: But even if there's radio or TV or internet advertisement, he's advertising a brand of sunglasses [00:10:27] Speaker 03: which have the registration I am, why wouldn't consumers then go to a store and see the other sunglasses for I am and associate them with hip? [00:10:39] Speaker 03: I understand you're making the point why I think it helps you, but it seems to me it can result in all the more confusion. [00:10:48] Speaker 03: If consumers get enough advertisement to think that the I am label [00:10:53] Speaker 03: is associated exclusively with will I am, then they're going to be confused because there are other I am labels that are not. [00:11:00] Speaker 03: Right? [00:11:00] Speaker 03: Do you understand what I'm saying? [00:11:01] Speaker 05: I understand what you're saying. [00:11:02] Speaker 05: I'm discreet for two reasons. [00:11:03] Speaker 05: One, in your example of the sunglasses, B lines mark is a highly stylized script mark. [00:11:10] Speaker 05: And that's the way it is registered, and that's the way it is used. [00:11:14] Speaker 05: So in some respects, it's difficult to even see that those are the words I am. [00:11:19] Speaker 05: And the second point is that Beeline is not using any indicia to draw the association with Mr. Adams. [00:11:26] Speaker 05: If people think it's a licensed product, the way they think it's a licensed product is because there's a connection with the celebrity. [00:11:33] Speaker 05: Beeline cannot do that. [00:11:35] Speaker 05: Finch cannot do that. [00:11:37] Speaker 05: Danica Siegel cannot do that by law. [00:11:40] Speaker 05: Under right of publicity and 43A, they cannot draw that association with Mr. Adams. [00:11:45] Speaker 05: And that would preclude a consumer from making the connection [00:11:49] Speaker 05: But how does the board reconcile that you have three IM marks in class 14, all for jewelry? [00:11:57] Speaker 05: They don't address that, and all three were cited against us. [00:12:01] Speaker 05: One, they were moved, and the other two. [00:12:03] Speaker 05: So if these can coexist, these two IM identical marks, one's for silicon bracelets, and the B line mark is also for bracelets, not made of silicon, how is it that Mr. Adams [00:12:16] Speaker 05: cannot coexist with IM when he has limited his identification of goods to be directly associated with him. [00:12:23] Speaker 05: And all of these marks have coexisted with Mr. Adams' IM clothing line. [00:12:28] Speaker 05: Celebrities are pretty big targets. [00:12:29] Speaker 05: If there was an issue of actual confusion, we would have seen it by now. [00:12:34] Speaker 05: He started this line in 2001. [00:12:36] Speaker 03: And whose obligation is it to bring forth the evidence of confusion? [00:12:43] Speaker 05: Well, it's proven a negative. [00:12:47] Speaker 05: We're saying that there's no evidence of confusion in 10 plus years. [00:12:52] Speaker 05: How do we show that there hasn't been any when there hasn't been any? [00:12:55] Speaker 05: All we can say is there hasn't been any. [00:12:58] Speaker 05: So it's sort of a chicken and egg. [00:13:00] Speaker 05: And you have one case where there was long coexistence on the actual confusion, and that was enough, where they said that the parties [00:13:08] Speaker 05: It was the city group case. [00:13:10] Speaker 05: Neither party was aware of any confusion. [00:13:12] Speaker 03: I think you want to stay up near your mic. [00:13:13] Speaker 05: Oh, I'm sorry. [00:13:15] Speaker 05: Neither party was aware of any confusion. [00:13:17] Speaker 05: That was obviously an inner party case, but still applicable here. [00:13:21] Speaker 05: So the only way we can tell you there's no confusion, to prove no confusion, is to tell you there's been no confusion. [00:13:26] Speaker 05: And like I said, when you have a celebrity, they come out of the woodworks if there's a problem. [00:13:31] Speaker 05: And there hasn't been on this. [00:13:34] Speaker 05: I've got a couple minutes left. [00:13:40] Speaker 05: want to touch upon the finding, because you sort of went to it, Your Honor, the finding of reverse confusion. [00:13:48] Speaker 05: The board took the position that another basis for refusal, even if they considered the subject matter limitation to have any meaning, which it should have, but it didn't, they still could refuse registration based on reverse confusion. [00:14:04] Speaker 05: But admittedly, there's no evidence at all that was submitted by the office or us with respect to the fame or lack thereof of the registrant's marks. [00:14:14] Speaker 05: How can you get to a finding of reverse confusion with no evidence at all? [00:14:18] Speaker 05: That's our point on that, that for the alternate basis, that even if you agree with us on the meaningfulness of the subject matter limitation, you shouldn't then uphold based on reverse confusion because there's just really no evidence of that. [00:14:36] Speaker 05: And then the last point I wanted to make, going back to the subject matter limitation, is that the office has already upheld limitations of this nature. [00:14:46] Speaker 05: And we gave an example of the Rowling's Downs. [00:14:49] Speaker 05: That we've submitted three or four registrations of celebrities that had the similar limitation in it. [00:14:54] Speaker 05: And then the solicitor said in the brief that there was no evidence that [00:15:02] Speaker 05: a 2D refusal was overcome based on that limitation and we presented in our reply brief, yes indeed that has happened with the Rolling Stones registration. [00:15:12] Speaker 05: So this isn't what we're asking for, it's not unusual and it's something that has already been done by the office. [00:15:18] Speaker 05: And I would reserve the, I think I have a little less than four minutes left. [00:15:22] Speaker 05: Yes, please. [00:15:23] Speaker 05: Thank you. [00:15:29] Speaker 04: Good morning and may it please the court. [00:15:32] Speaker 04: I'll begin where my colleague looked off. [00:15:35] Speaker 04: This is highly unusual. [00:15:37] Speaker 04: This is a textbook likelihood of confusion case. [00:15:40] Speaker 04: You have identical marks for identical goods in two cases and closely related goods in a third. [00:15:46] Speaker 01: Nobody disputes that these goods are identical or closely related unless you agree that this language... Well, what's the legal significance of the qualification or registration all associated with William Adams? [00:15:59] Speaker 01: None. [00:16:00] Speaker 04: It actually has zero significance legally or commercially. [00:16:05] Speaker 04: It assumes the question that we're here to answer. [00:16:08] Speaker 04: What source will consumers associate these products with? [00:16:12] Speaker 04: The mark is i space am. [00:16:14] Speaker 04: It's not will.i.am. [00:16:17] Speaker 04: It's not even i.am. [00:16:18] Speaker 04: It is i space am. [00:16:19] Speaker 04: That is the identical to the registered mark. [00:16:22] Speaker 04: The goods are identical. [00:16:23] Speaker 04: That associated with will.i.am doesn't tell us anything about [00:16:28] Speaker 04: how it changes who the consumers are, how it changes how the goods are marketed. [00:16:34] Speaker 04: It's not like he's saying, I want this mark only for authorized licensed merchandise sold only at concerts where Will.i.am performs. [00:16:44] Speaker 04: There might be an argument there. [00:16:45] Speaker 04: I don't think it's enough in this scenario. [00:16:47] Speaker 01: Is there a controlling law to the effect that a qualification like that is of no legal consequence? [00:16:55] Speaker 04: Yes, there is, your honor. [00:16:57] Speaker 04: That's the normal rule. [00:16:58] Speaker 04: A later applicant cannot get around a likelihood of confusion. [00:17:04] Speaker 04: Is it in the statute? [00:17:05] Speaker 04: The rules are the case? [00:17:08] Speaker 04: I think it's in the statute. [00:17:11] Speaker 04: Well, it's founded in the statute. [00:17:12] Speaker 04: The rule is articulated in case law. [00:17:15] Speaker 04: But the basis in the statute is, the prior registration, you get the rights and presumptions under section B for the mark that's shown in the registration. [00:17:24] Speaker 04: And here we have standard character marks. [00:17:27] Speaker 04: or a stylized mark, for the goods recited in that registration. [00:17:33] Speaker 04: And we have to give that registration its full scope and effect and all the presumptions it's entitled to a validity for this full scope of goods it covers. [00:17:41] Speaker 04: So a later applicant who wants the same mark for the same goods normally cannot avoid a likelihood of confusion. [00:17:48] Speaker 03: But there have to be instances where someone can rebut that. [00:17:53] Speaker 03: And in this case, it seems that your friend has come up with [00:17:57] Speaker 03: a number of arguments and a situation where there's extensive advertising, where these goods are marketed in association with Mr. Adams. [00:18:07] Speaker 03: I'm not a consumer of these products necessarily, so I'm not sure what she means. [00:18:13] Speaker 03: But if they're really even marketed in stores, and frankly, although you have three registrations, it's the script one that has largely the overlap with the products here, at least in jewelry. [00:18:25] Speaker 03: The other one that's identical to that [00:18:27] Speaker 03: is very limited in terms of the products, right? [00:18:33] Speaker 04: No, they're the same, really. [00:18:36] Speaker 04: Let me respond to you. [00:18:39] Speaker 03: The finch registration, at least in the stuff I have, is limited to a silicon stretchable wristband, like a bracelet. [00:18:48] Speaker 03: It's only the B-line registration [00:18:50] Speaker 03: that has a laundry list of the kind of jewelry that overlaps. [00:18:53] Speaker 04: That's correct, Your Honor. [00:18:54] Speaker 04: That overlaps. [00:18:55] Speaker 04: But the silicon stretchable wristband overlaps directly with the rubber wristbands in the nature of bracelets that's in Mr. Adams' identification. [00:19:04] Speaker 04: And so that's why that one was cited, because the B-line one covers jewelry more broadly, but the Finch one covers that. [00:19:11] Speaker 03: Is there any significance to the fact that the characters are different, that the B-line is a script? [00:19:16] Speaker 04: I think with respect to the Class 14, [00:19:20] Speaker 04: That is probably why the stylized mark and the silicone stretchable wristband would have been allowed to register over a stylized mark that covers jewelry broadly. [00:19:34] Speaker 04: The other registration that was mentioned, forgetting which one it was, the St. [00:19:42] Speaker 04: Germain, I think it was, [00:19:43] Speaker 04: That has a big design with it. [00:19:45] Speaker 04: You don't even really see I am as part of that. [00:19:47] Speaker 04: And that is largely why that refusal was withdrawn, because the dominant part of that mark is not the words I am. [00:19:53] Speaker 04: Here, we have Mr. Adams coming in for I am in standard characters. [00:19:57] Speaker 04: And to address just another sort of assumption that Council wants you to make here, these are intent to use applications. [00:20:05] Speaker 04: The sunglasses and the jewelry and the cosmetic products. [00:20:11] Speaker 04: We don't have any evidence that I am [00:20:14] Speaker 04: by Will.i.am is in use at all. [00:20:17] Speaker 04: We have evidence that he owns a registration that he acquired by assignment for the mark.i.am for clothing. [00:20:23] Speaker 04: And the fact that he does all this stuff, marketing in the real world, and how consumers encounter the products in the real world, we cannot import that into the registration analysis. [00:20:34] Speaker 01: It's no different than households. [00:20:35] Speaker 01: Poulsen Council says there's been no evidence of confusion. [00:20:40] Speaker 01: And you're saying that's because [00:20:42] Speaker 01: These are only intent to use applications? [00:20:45] Speaker 04: Yes, Your Honor. [00:20:45] Speaker 04: There's really been no opportunity from the evidence we have before us of confusion to occur. [00:20:52] Speaker 04: And confusion with respect to his clothing is wholly irrelevant to whether I am for sunglasses is confusingly similar to I am for sunglasses. [00:21:02] Speaker 04: In effect, he's asking for an exception to the registration rules for celebrities and a hypothetical that might just help [00:21:11] Speaker 04: this resonate a little bit more. [00:21:14] Speaker 04: There's Prince Sporting Goods. [00:21:17] Speaker 04: They own a registration that's over 40 years old for the Mark Prince for tennis rackets. [00:21:22] Speaker 04: Let's say the estate of Prince Rogers Nelson, professionally known as Prince, decides they want to start selling tennis rackets and they want to get a federal registration for Prince for tennis rackets. [00:21:34] Speaker 04: If you accept everything that Appellan is saying here, we'd have to give them that registration. [00:21:39] Speaker 04: It's just not [00:21:40] Speaker 04: The law, the trademark laws protect the prior registrant against a newcomer. [00:21:46] Speaker 04: And of all the marks to choose, if he wants to be IAM, he has mechanisms to acquire the rights of the prior registrants or enter into some kind of licensing arrangement. [00:21:57] Speaker 04: But we cannot, simply because these will be in some way associated with it, we have no way of telling what that is on the face of this application. [00:22:07] Speaker 04: It doesn't limit in any way commercially meaningful for the consumers or channels of trade or distinguish them. [00:22:13] Speaker 04: It's just, it's, it's legally wrong. [00:22:16] Speaker 04: And the board was correct to say that there is likelihood of confusion here and that that... So let me ask you one question. [00:22:23] Speaker 02: This associated language that we've been discussing, what is the general purpose of that in a general sense? [00:22:31] Speaker 02: Putting aside this case for the moment. [00:22:33] Speaker 02: What effect does that have, generally, when it's inserted into something? [00:22:38] Speaker 04: I've never seen it inserted into an identification because, again, it's assuming the question we're here to answer. [00:22:43] Speaker 04: It's really no different than saying it's associated with applicant. [00:22:46] Speaker 04: Well, how do we know that? [00:22:47] Speaker 04: What we're trying to figure out is who are consumers going to associate it with? [00:22:50] Speaker 02: So this isn't something that's commonly used? [00:22:52] Speaker 02: No, Your Honor. [00:22:53] Speaker 04: No. [00:22:53] Speaker 04: This is not commonly used at all. [00:22:56] Speaker 04: Limitations that tend to be used are ones that actually limit how the goods are sold, [00:23:02] Speaker 04: and who they're sold to in a way that would matter commercially. [00:23:05] Speaker 04: But again, even in those cases where applicants try and do that, if the prior registration contains no restrictions and it's otherwise the same goods, sunglasses are still sunglasses that we wear to protect our eyes no matter if they're associated with a celebrity or not, we cannot give them a registration in that context. [00:23:26] Speaker 04: The other thing I did want to mention that Rolling Stones came up [00:23:31] Speaker 04: That situation is entirely different. [00:23:33] Speaker 04: There was a consent agreement in the record there. [00:23:35] Speaker 04: The goods were different as well for publications versus the rock band and entertainment services associated with them. [00:23:43] Speaker 04: And the parties there had entered into a worldwide consent agreement where they delineated how they would use the marks in the channels of trade. [00:23:50] Speaker 04: We do not have a consent agreement here. [00:23:52] Speaker 04: And finally, I would close with this is not to say that if [00:23:56] Speaker 03: What is the consequence of a consent agreement? [00:23:58] Speaker 03: Does that mean that it has been approved by the office or the parties are free to enter into their own consent agreement and then you just abide by it? [00:24:07] Speaker 04: So the consequence of a consent agreement is that it can, in a case like this, where you would have sort of textbook likelihood of confusion, be relevant evidence that might convince the office that, oh, how these parties have agreed to, say, amend their applications and registrations [00:24:26] Speaker 04: and how they're actually using the promises that they've made to avoid confusion. [00:24:29] Speaker 04: That might sort of outweigh what appears on its face otherwise for there to be confusion. [00:24:36] Speaker 04: But normally, it's just a piece of evidence in the analysis. [00:24:40] Speaker 04: Not every consent agreement is going to overcome a likelihood of confusion where it otherwise appears on the face of the application registration. [00:24:48] Speaker 04: But it's something the office takes into account, particularly where the goods are different. [00:24:52] Speaker 04: They might be related, but where they're different. [00:24:55] Speaker 04: And again, we just don't have that here. [00:25:00] Speaker 04: So unless the court has further questions. [00:25:09] Speaker 05: Just a couple of points, Your Honors. [00:25:14] Speaker 05: The DuPont case, factor 11 of the DuPont case is that the board, if there's evidence of it, [00:25:21] Speaker 05: should consider the extent to which the applicant has the right to exclude others from the use of its mark on its goods. [00:25:28] Speaker 05: And that's exactly what the subject matter limitation goes to. [00:25:31] Speaker 05: That subject matter limitation defines Mr. Adams' rights associated with him through his right of publicity, through his 43A rights, his persona claims. [00:25:42] Speaker 05: And the board, the examiner [00:25:45] Speaker 05: the office should have considered that. [00:25:46] Speaker 05: In the DuPont case, there was a consent agreement. [00:25:49] Speaker 05: And the terms of the consent agreement are not printed in the registration. [00:25:53] Speaker 05: So to your point, Your Honor, it's not something that you're going to see. [00:25:58] Speaker 05: The limitation is not stated. [00:26:00] Speaker 05: Our limitation is not stated in the registration, nor are the terms of any consent agreement. [00:26:04] Speaker 05: And the office consistently looks at consents, doesn't automatically accept them, by the way. [00:26:08] Speaker 05: Still has to look at the DuPont factors. [00:26:13] Speaker 05: And in DuPont, the court said that the overlap in the goods, potentially, one was for all purpose cleaning detergents and the other was for automobile cleaning detergents. [00:26:24] Speaker 05: You could see how the applicant's mark could be subsumed into the cited marks. [00:26:31] Speaker 05: They said, look, the parties have agreed to a consent agreement. [00:26:34] Speaker 05: And if one goes into the other party's goods or vice versa, they're going to be subject to breach of contract and infringement. [00:26:42] Speaker 05: And I think that an infringement is important here, because if the registrants were to go into Mr. Adams' line of goods, which is goods associated with himself and the way he promotes it, and he uses his style names, include his name, all of these things, they would be subject to an infringement claim. [00:27:01] Speaker 05: So I think DuPont supports our position on that. [00:27:06] Speaker 05: And in terms of the no actual confusion comment that was made by the solicitor, [00:27:12] Speaker 05: Solicitor's Office, we have evidence of significant evidence of use of IM for Class 25. [00:27:19] Speaker 05: The office itself has said that through its submission of third party registrations, Class 25 is related to 9, 14, and 3. [00:27:29] Speaker 05: It's all over their registration. [00:27:31] Speaker 05: So that, to me, is an important fact that the court should consider in terms of this. [00:27:36] Speaker 05: We're not looking for a celebrity. [00:27:38] Speaker 01: You said you have evidence of use, used by your [00:27:41] Speaker 01: client or the other users? [00:27:44] Speaker 05: No, no, no. [00:27:45] Speaker 05: Used by our client and the type of information that we presented, and it's in the joint appendix, variations of... Are not these intent to use applications? [00:27:56] Speaker 05: These are intent to use applications. [00:27:59] Speaker 05: But we submitted the evidence on the use of IAM for clothing and samples of other types of use of IAM by Mr. Adams to show the connection of IAM with him, to give the meaning to [00:28:11] Speaker 05: the subject matter limitation that we put in. [00:28:14] Speaker 05: And again, this language, it's from 43A, is where I devised the limitation because I'm not going to put in a limitation printed using quotes, Mr. Adams wearing, every different type of thing that he could possibly associate himself with his products because that wouldn't be [00:28:38] Speaker 05: something that anyone would want printed in a registration. [00:28:41] Speaker 05: I used the parameters of the Lanham Act for that subject matter limitation. [00:28:47] Speaker 05: Unless the court has any other questions, I've got about 15 seconds left. [00:28:53] Speaker 05: Thank you very much.