[00:00:14] Speaker 00: The next case for argument is 162558 N. Ray, North Carolina lottery. [00:00:59] Speaker 00: Whenever you're ready, sir. [00:01:01] Speaker 00: Mr. Bennett? [00:01:04] Speaker 04: Good morning, Your Honor. [00:01:06] Speaker 04: I represent the North Carolina Lottery. [00:01:09] Speaker 04: The North Carolina Lottery is a state agency that operates the official lottery of the state of North Carolina. [00:01:16] Speaker 04: The North Carolina Lottery has applied to register the mark first Tuesday in connection with its lottery services, lottery cards, and scratch cards for lottery people. [00:01:27] Speaker 00: Does the position depend on our concluding that you can't consider the explanatory text? [00:01:33] Speaker 00: In other words, do you agree that if we read the first Tuesday mark in connection with the explanatory text, it does become descriptive? [00:01:42] Speaker 04: No, my position doesn't depend on the outcome there. [00:01:46] Speaker 04: Matter of fact, I think the specimens can be considered. [00:01:50] Speaker 04: The question is what they can be considered for. [00:01:53] Speaker 04: In this case, the test for description of this is whether the mark itself immediately conveys information about the ingredients, the qualities or characteristics of the goods or services. [00:02:08] Speaker 04: Now, in this case, the mark is first Tuesday. [00:02:12] Speaker 01: In connection with how the purchasing public would see that mark. [00:02:15] Speaker 04: Correct. [00:02:16] Speaker 04: And I'm not arguing that the mark should be considered in the abstract. [00:02:21] Speaker 04: it's very clear in the case law that you have to consider the goods and services, which are lottery services and these instant gains. [00:02:28] Speaker 01: But we also are required to consider the advertising, aren't we? [00:02:32] Speaker 04: Correct. [00:02:32] Speaker 04: I'm getting to that. [00:02:33] Speaker 04: Also, I think that you have to consider the specimens of record. [00:02:37] Speaker 04: I've never argued that specimens of record cannot be considered. [00:02:41] Speaker 04: I think the issue here in this case, for example, specimens are often allowed to show what goods or services are being offered by the applicant. [00:02:51] Speaker 04: And in that case, I think that's what's happening here. [00:02:53] Speaker 04: You can certainly look at the specimen, and the specimen clearly informs the person that views the specimen that one aspect of the service is that new instant scratch games are offered on the first Tuesday of every month. [00:03:07] Speaker 04: And so looking at the specimen to understand that that is one aspect of the service, that's an appropriate use of the specimen in that case. [00:03:17] Speaker 04: I think what the examiner has done in this case is akin to a patent case [00:03:21] Speaker 04: where you have to construe the claims in line with the specification, but you don't read limitations from the specification into the claims. [00:03:27] Speaker 04: And I think the same thing is true here. [00:03:29] Speaker 04: Certainly, you have to consider the specimen. [00:03:31] Speaker 04: You have to consider the goods and services. [00:03:33] Speaker 04: You have to consider the average. [00:03:34] Speaker 02: But are you arguing that First Tuesday has some kind of significance beyond the fact? [00:03:40] Speaker 02: that the new scratch-offs are issued every first Tuesday? [00:03:44] Speaker 04: My contention is that when a consumer is presented with a marked first Tuesday, that merely suggests that something happens on Tuesday, but it leaves it to the imagination what happens, that it doesn't explain what happens on that Tuesday. [00:03:56] Speaker 00: But if we're allowed to consider the other stuff, which I think you've conceded, then it doesn't leave it to his imagination. [00:04:03] Speaker 00: The consumer understands what happens on the first Tuesday. [00:04:07] Speaker 00: Correct. [00:04:07] Speaker 04: But the test for trademark infringement is whether [00:04:10] Speaker 04: the mark conveys that information. [00:04:12] Speaker 04: Yes, the specimen provides additional information that's not conveyed by the mark itself. [00:04:18] Speaker 02: It really seems to me like you're suggesting that even though we can look at the specimen and the advertisements and stuff, we really can't. [00:04:27] Speaker 02: Because once you look at it, you have to concede that the consumer would understand first Tuesday [00:04:34] Speaker 02: to mean new scratchers every first Tuesday. [00:04:36] Speaker 04: Well, I think it's self-evident that once somebody explains the connection, that the consumer would understand the connection. [00:04:41] Speaker 04: And I think the fact that it needs to be explained indicates that the mark is not descriptive. [00:04:47] Speaker 02: If you look at the director... Didn't it need to be explained if you used the word, the mark, in a way that wasn't normal? [00:04:54] Speaker 02: But they don't explain first Tuesday. [00:04:57] Speaker 02: First Tuesday is used in the exact same way. [00:04:59] Speaker 02: It's used in the [00:05:01] Speaker 04: Well, in the mark, when you look at the word first Tuesday, it says nothing about scratch cards. [00:05:07] Speaker 04: It says nothing about new cards being issued. [00:05:09] Speaker 04: It says nothing about the first Tuesday of every month. [00:05:13] Speaker 04: That additional understanding comes from the explanatory text. [00:05:20] Speaker 02: But the explanatory text doesn't change the meaning of first Tuesday. [00:05:27] Speaker 02: No, I think it gives it meaning. [00:05:29] Speaker 02: It gives it new meaning. [00:05:31] Speaker 02: It still means first. [00:05:32] Speaker 02: What new meaning does it give it? [00:05:34] Speaker 02: It gives it the meaning first Tuesday, and the explanatory text is, we knew scratchers. [00:05:40] Speaker 04: I think that the words first Tuesday vaguely suggest that something happens on a particular day, and the explanatory text adds additional meaning to that. [00:05:48] Speaker 04: My point is, I don't think the additional meaning should be considered in determining what the market itself conveys. [00:05:56] Speaker 01: The question I have is I believe our case law makes it clear that it's appropriate and maybe even necessary to consider how the mark is being used, how it's being promoted to the public and so therefore how the public would understand the mark in the context of how it's being used and so part of that necessarily includes things like your specimen and the advertising and things like that. [00:06:20] Speaker 01: That's what channeled the TTAB to reach the decision it did. [00:06:25] Speaker 01: Is there an example? [00:06:27] Speaker 01: Is there a case you're aware of where this court or another court said, well, we're not going to necessarily consider all of the specimen or all of the advertising content. [00:06:41] Speaker 01: reach a certain limit into what degree we're going to actually evaluate and test what's in there against the mark to figure out what the purchasing public would perceive. [00:06:51] Speaker 01: Is there a case like that that says there's a limit? [00:06:54] Speaker 04: All right. [00:06:54] Speaker 04: That was a long question. [00:06:56] Speaker 04: Sorry. [00:06:57] Speaker 04: I've not been able to find a case that's exactly like this. [00:06:59] Speaker 04: I think this case is kind of one of the first impressions. [00:07:02] Speaker 04: I do want to correct something I think that is a misunderstanding. [00:07:05] Speaker 04: I've never argued that you don't consider the specimen and you don't consider it in its entirety. [00:07:10] Speaker 02: Yes, the specimen is relevant because it discloses... But you keep saying that, but then you tell us we have to ignore the explanation in the specimen. [00:07:18] Speaker 04: No, I'm not saying that we ignore it. [00:07:22] Speaker 02: I'm saying that once you understand... What is the point of considering it if it can't inform whether it's descriptive or not? [00:07:31] Speaker 04: The specimen discloses that one aspect of our service is that [00:07:36] Speaker 04: cards are issued on the first Tuesday. [00:07:38] Speaker 04: What other aspect does First Tuesday refer to? [00:07:43] Speaker 04: The words First Tuesday by themselves don't refer to that specific feature. [00:07:48] Speaker 04: They just vaguely suggest something happens. [00:07:50] Speaker 04: The specimen explains it. [00:07:51] Speaker 04: My point is that once you understand that that is an aspect of the service and once you understand the mark, you know, the mark is First Tuesday, the service, one aspect of the service is [00:08:04] Speaker 04: that we offer our new lottery cards on the first Tuesday every month. [00:08:07] Speaker 04: To get from point A to point B, you can't get there without the explanatory text, because the mark doesn't take you there. [00:08:13] Speaker 00: Where does that, referring back to Judge Hughes' question, so to what extent do we use that explanatory information? [00:08:21] Speaker 04: The extent is to explain that that is one aspect of our service. [00:08:25] Speaker 00: That's clearly relevant. [00:08:29] Speaker 00: doesn't make it descriptive, even though it explains. [00:08:33] Speaker 04: The question is whether the mark is descriptive. [00:08:36] Speaker 04: It's whether the mark is two words. [00:08:37] Speaker 00: So you're telling us, and I think I'm repeating what Judge you said, but you're telling us, yes, you can consider it, but it's irrelevant to the conclusion that we're trying to draw here. [00:08:48] Speaker 04: I'm not saying that it's irrelevant. [00:08:50] Speaker 04: I'm saying that you can't take meaning that's conveyed by the explanatory text and then attribute that meaning to the mark and then say the mark with this new meaning that's given by that is descriptive. [00:09:02] Speaker 00: It's not a new meaning. [00:09:03] Speaker 00: It's not a different meaning. [00:09:04] Speaker 00: It's the only meaning. [00:09:06] Speaker 04: I disagree. [00:09:07] Speaker 04: I think the mark first Tuesday, had that explanatory text not been on the specimen? [00:09:14] Speaker 04: No one, I don't think, would ever [00:09:16] Speaker 04: guess what that mark meant. [00:09:17] Speaker 00: Well, why are you trying to convey it to the consumer if it's meaningless? [00:09:22] Speaker 04: Well, it's not meaningless, obviously. [00:09:25] Speaker 00: Well, if no one would understand it, in essence, it's meaningless, right? [00:09:30] Speaker 00: Aren't you trying to convey it to the consumer? [00:09:32] Speaker 00: Look, something happens the first Tuesday of every month. [00:09:35] Speaker 00: In other words, we're issuing new scratch-offs and you ought to go buy them. [00:09:39] Speaker 04: And that's what people do through advertising. [00:09:40] Speaker 04: They use advertising to give meaning to the marks. [00:09:43] Speaker 04: Once that connection is explained, people will remember it. [00:09:46] Speaker 04: My point is that without that explanation, the connection between the mark and the goods you can't make. [00:09:53] Speaker 04: You couldn't make that without a multi-step reasoning process which makes that mark descriptive. [00:09:57] Speaker 00: Well, it seems to me the legal proposition that you want us to accept is we have to consider the mark and whether it's descriptive, separate and distinct and divorced from the explanatory material. [00:10:09] Speaker 00: It seems to me the legal proposition we would have to adopt [00:10:11] Speaker 00: to reach the conclusion you're trying to get us to read? [00:10:14] Speaker 04: I don't think that's the case. [00:10:15] Speaker 04: I particularly think if you look at my reply brief, I think that you'll understand that the words first Tuesday convey a certain meaning. [00:10:26] Speaker 04: Those words don't say anything about lottery cards. [00:10:29] Speaker 04: To understand that that first Tuesday is referring to lottery cards, you have to first refer to the specimen. [00:10:35] Speaker 04: And then once you refer to the specimen and understand that that first Tuesday is applying to lottery cards, [00:10:40] Speaker 04: then that gives you some more understanding. [00:10:43] Speaker 04: But that meaning is not conveyed by the mark. [00:10:45] Speaker 04: That meaning is conveyed by the specimen. [00:10:47] Speaker 04: And the test for descriptiveness is whether the mark immediately and directly conveys that understanding. [00:10:53] Speaker 04: I don't think the mark first Tuesday immediately and directly conveys the complete understanding that new lottery cards are issued on the first Tuesday of every month. [00:11:04] Speaker 04: that to get there, you have to combine the vague suggestion that something happens on Tuesday that's implied by the mark with the additional understanding that's implied by the explanatory text. [00:11:16] Speaker 04: You put those two together, yes. [00:11:18] Speaker 01: And now what? [00:11:19] Speaker 01: When you say yes, yes what? [00:11:20] Speaker 01: Yes, you would agree that if the law is that we have to consider the explanatory text in the specimen in advertising, then you concede that it [00:11:33] Speaker 01: that first Tuesday all of a sudden becomes descriptive of an attribute of this mark. [00:11:39] Speaker 04: I disagree. [00:11:40] Speaker 04: I think that if the understanding comes only after it's explained to you, then that's proof that it's not descriptive. [00:11:46] Speaker 01: No, I understand that. [00:11:48] Speaker 01: But let's assume for the moment that you do have to consider that explanatory text. [00:11:55] Speaker 04: If you had to attribute [00:11:57] Speaker 01: If that's part of the analysis that we've got, we're required to consider it. [00:12:02] Speaker 04: I don't think you have to. [00:12:03] Speaker 01: I don't think the case law says that. [00:12:06] Speaker 01: Stay with me here. [00:12:07] Speaker 01: If we have to, then you would agree that now all of a sudden, first Tuesday is descriptive of the service because the scratch-offs are being sold every first Tuesday of the mark. [00:12:20] Speaker 04: Yes. [00:12:20] Speaker 04: If the rule of law was everything stated in the specification is attributed to the mark, [00:12:26] Speaker 04: then in that case, the mark would be descriptive. [00:12:28] Speaker 01: OK. [00:12:29] Speaker 01: So the question is, as a legal matter, as part of a framework of the inquiry, should we be considering all that explanatory text or not? [00:12:39] Speaker 04: And I think it's relevant to understand what the services are. [00:12:43] Speaker 04: But the ultimate question is, would a consumer presented with a mark first Tuesday, does the mark first Tuesday immediately and directly convey that understanding [00:12:55] Speaker 04: to an average consumer. [00:12:57] Speaker 04: And I don't think it does. [00:12:59] Speaker 00: OK, we're into your rebuttal. [00:13:00] Speaker 00: Why don't we hear from the governor? [00:13:01] Speaker 00: Thank you. [00:13:09] Speaker 03: May it please the court. [00:13:10] Speaker 03: I just have three small points, Your Honor. [00:13:13] Speaker 03: Number one, this court is required to consider the mark in context. [00:13:18] Speaker 03: The case law is pretty clear. [00:13:20] Speaker 03: We've cited it in our brief. [00:13:22] Speaker 03: you cannot look at the mark in an abstract. [00:13:25] Speaker 03: It has to be looked at in the context of how a consumer would view the mark in the context of the goods and services. [00:13:32] Speaker 03: Number two, the reason that the law requires that a specimen be submitted along with the trademark application is exactly for that reason to show, the applicant shows the agency how the mark is going to be used [00:13:44] Speaker 03: and how the consumer is going to view it. [00:13:45] Speaker 03: And they gave us those specimens. [00:13:47] Speaker 00: That's a little hard though, right? [00:13:49] Speaker 00: Because in the context of the world we're dealing with, if you're going to use a mark for advertisement, obviously you're going to not want it to be completely abstract. [00:13:57] Speaker 00: The whole point of doing an advertisement is so the consumers will be informed of a message, not so you'll leave them in Never Neverland not understanding what's going on, right? [00:14:07] Speaker 03: Understood exactly, Your Honor. [00:14:09] Speaker 03: We understand that [00:14:10] Speaker 03: that that's important, that you can't just have the mark on its own floating around in outer space. [00:14:15] Speaker 03: Here, the mark is used specifically to market and promote these lottery cards. [00:14:22] Speaker 03: That's what the North Carolina Lottery is doing. [00:14:24] Speaker 03: They put first Tuesday. [00:14:26] Speaker 03: That's the mark that they want. [00:14:27] Speaker 03: First Tuesday with lottery cards that are periodically offered. [00:14:31] Speaker 03: A consumer sees first Tuesday. [00:14:34] Speaker 03: The board made findings. [00:14:35] Speaker 03: The examiner made findings and said that describes an aspect [00:14:38] Speaker 03: Not all aspects, not every aspect, but an aspect of these goods and services. [00:14:44] Speaker 03: That's the finding of the board. [00:14:45] Speaker 03: Those are fact findings. [00:14:46] Speaker 03: As far as the law goes, I think we've cited a number of cases that is binding precedent that say, you can look to the advertisement. [00:14:53] Speaker 03: You can look to the surrounding information. [00:14:55] Speaker 03: In this case, it's more than just advertising. [00:14:58] Speaker 03: The specimens themselves actually have this language in there about first Tuesday of the month. [00:15:03] Speaker 03: Then you also have advertising, I believe, on the North Carolina website that promotes the marks. [00:15:08] Speaker 02: I'm a little curious about where we draw the lines in this. [00:15:14] Speaker 02: I mean this one seems firmly on your side of the line but you know I assume a good example of what would be completely not descriptive would be like the Nike swoosh and the just do it thing put on athletic apparel. [00:15:27] Speaker 02: It is certainly not descriptive of athletics or apparel or things like that or their use or but it certainly meant at least some point to associate it with [00:15:38] Speaker 02: that kind of stuff. [00:15:40] Speaker 02: What about a middle ground, like the Under Armour mark? [00:15:43] Speaker 02: I mean, Under Armour, if you put it in the context of a t-shirt or compression shorts or something, sounds like it's being descriptive of what they're used for, which is underwear. [00:15:54] Speaker 03: I think you're correct, Your Honor, that it is difficult to draw the line. [00:15:58] Speaker 03: But I guess an example that was raised in this case, I believe our friends on the other side cited a case called Swatch, a 4th Circuit case. [00:16:07] Speaker 03: The Swatch case [00:16:08] Speaker 03: If you look at it, what happened there was the TTAB head said, no, that's not descriptive. [00:16:13] Speaker 03: It's suggestive. [00:16:14] Speaker 03: And in that case, the mark was to swap out, it was swap, to swap out watch bands with watch faces. [00:16:23] Speaker 03: And it was this interchange bands with the bands with faces. [00:16:27] Speaker 03: Well, they had this postcard that brought in as evidence. [00:16:30] Speaker 03: The postcard had arrows. [00:16:31] Speaker 03: It had other types of explanatory text. [00:16:33] Speaker 03: It was complicated. [00:16:35] Speaker 03: It was really hard for the consumer to actually figure out [00:16:38] Speaker 03: what that word meant, swap. [00:16:40] Speaker 03: Swap what? [00:16:41] Speaker 03: That had a lot of explanatory text. [00:16:43] Speaker 03: It was very detailed. [00:16:44] Speaker 03: It was very complex. [00:16:45] Speaker 03: Here, it's very simplistic. [00:16:47] Speaker 03: We've got first Tuesday on lottery cards. [00:16:51] Speaker 03: Furthermore, the explanatory text that we're talking about here is not complicated diagrams or arrows. [00:16:57] Speaker 03: What this is, they actually use the exact words, first and Tuesday. [00:17:01] Speaker 03: Those words, they use them in like normal language to describe [00:17:05] Speaker 03: their own service. [00:17:06] Speaker 03: They don't have to define what first Tuesday means. [00:17:09] Speaker 03: No, they use it in a sentence. [00:17:10] Speaker 03: They say right below on the specimen, if I take you to the page, for example, on page, appendix page 18, first Tuesday, new spraxoffs, the first Tuesday of the month. [00:17:23] Speaker 03: That's a sentence using the word first and the word Tuesday in normal language, not as a trademark. [00:17:29] Speaker 01: So if that sentence wasn't there, then [00:17:33] Speaker 01: Then they would be OK? [00:17:35] Speaker 01: Then they get their mark? [00:17:37] Speaker 03: We don't have that case, but let's see. [00:17:39] Speaker 03: I know, but just theoretically. [00:17:40] Speaker 03: If it weren't there, I still think there could have been a basis for the board and the examiner to find descriptiveness. [00:17:46] Speaker 03: Because the words first and Tuesday, they do have meaning. [00:17:50] Speaker 03: That's an ordinary meaning, the first Tuesday. [00:17:52] Speaker 03: I think there is descriptiveness there. [00:17:54] Speaker 03: I think they could have still found descriptiveness. [00:17:56] Speaker 03: Now. [00:17:57] Speaker 01: You know, it could be first Tuesday of the year. [00:17:59] Speaker 01: It may be first Tuesday of the month, first Tuesday of who knows what. [00:18:02] Speaker 03: All those are possibilities, Your Honor. [00:18:04] Speaker 03: However, you know, Appellant pointed out that they said no consumer could possibly figure this out and figure out that this is the first Tuesday of the month. [00:18:12] Speaker 03: Yet, you know, there's not a single piece of evidence brought forth by Appellant in this record to show that. [00:18:18] Speaker 03: Now, what we do have in the record is evidence by the agency showing that it's descriptive. [00:18:23] Speaker 03: Their evidence saying, oh, no one would ever think that, because he said that here today, and he said in his brief, [00:18:28] Speaker 03: there is no evidence like surveys or anything showing consumers would not understand what First Tuesday means in association with these goods and services. [00:18:36] Speaker 03: So I think part of this is we have to look at what evidence has been offered. [00:18:41] Speaker 03: Another part of it is the words First Tuesday in and of themselves do mean something. [00:18:45] Speaker 03: They mean the First Tuesday. [00:18:47] Speaker 03: That is descriptive of an aspect of these goods and services and we know that the law says [00:18:52] Speaker 03: They don't have to be descriptive of all the aspects of this goods and services, just an aspect of the goods and services. [00:18:58] Speaker 03: And it qualifies, even if, in your hypothetical, even if those extra explanatory phrases weren't there. [00:19:04] Speaker 03: So I think it's a pretty solid case. [00:19:07] Speaker 01: Is there a case, I mean, we already have a concession on the other side, but is there a case that says when a service is offered is something that should be considered an attribute of the service itself? [00:19:22] Speaker 01: I mean, if the mark was something like 20 winners or a million dollars, then we can understand, OK, maybe that's descriptive of a winning ticket. [00:19:36] Speaker 01: You can get a million dollars. [00:19:37] Speaker 01: Or maybe we know that in this round of the lottery, there's going to be 20 winners. [00:19:43] Speaker 01: But this is the first Tuesday. [00:19:46] Speaker 01: And so I don't know of a case where [00:19:52] Speaker 01: a word that's not necessarily descriptive of the actual character of the service or goods is actually considered merely descriptive under the trademark law? [00:20:06] Speaker 03: Well, I mean, I don't have a specific example, but I do know the Chamber of Commerce case, which we've cited in our brief, that does say you need not describe each and every feature, which [00:20:18] Speaker 03: What you're talking about is what about more detail? [00:20:20] Speaker 03: Why isn't it more descriptive? [00:20:22] Speaker 01: Why does this count as an attribute of the goods and services when it's technically not something that's an element of the actual [00:20:33] Speaker 01: lottery service? [00:20:35] Speaker 03: Well, Chamber of Commerce also says not just describe the goods, but of the services. [00:20:39] Speaker 03: What are the services here? [00:20:40] Speaker 03: The services that they're talking about are they're going to come forth with the new scratch-off lottery cards, and they're going to be offered on the first Tuesday of the month. [00:20:49] Speaker 03: Those are aspects of the services that are being offered. [00:20:52] Speaker 03: Now, the consumers we know from the record, they're interested in when these things come out. [00:20:57] Speaker 03: There's a demand to know when the new [00:20:59] Speaker 03: newly issued scratch-off cards come out. [00:21:02] Speaker 03: That is an aspect of the services that are important to the consumers, and that's what the board, the TTAB, is saying is being described by this language first Tuesday. [00:21:11] Speaker 03: So I think that's the core, and I don't have a specific case for you that's right on, but I think Chamber of Commerce stands for the principle that to be descriptive, it doesn't have to describe every aspect or every detail of the services of the product. [00:21:26] Speaker 03: It has to describe a aspect, a single aspect, and we think [00:21:30] Speaker 03: this is sufficient for that, Your Honor. [00:21:33] Speaker 03: I don't really have any further, unless there's more questions. [00:21:35] Speaker 00: Thank you. [00:21:36] Speaker 00: Thank you. [00:21:46] Speaker 04: I'd like to just very quickly address a couple of points. [00:21:50] Speaker 04: One, Judge Chin's question about is the fact that this is not really [00:21:58] Speaker 04: an essential characteristic of the service. [00:22:00] Speaker 04: The fact that we do this on Tuesday, we could just as easily do this on Monday or Wednesday or Thursday or Friday. [00:22:06] Speaker 04: The test for descriptiveness does state that the mark must immediately and directly describe a characteristic feature of quality and the case law specific in saying that it has to be a significant feature of that service. [00:22:20] Speaker 04: So that might go toward answering that question. [00:22:23] Speaker 02: But why isn't this a significant feature of this specific service? [00:22:27] Speaker 02: I mean, the whole point of advertising all these things is so you get people to come out and buy these new ones every Tuesday, or the first Tuesday, I guess I've heard about. [00:22:35] Speaker 04: That's correct, yes. [00:22:36] Speaker 04: I was trying to answer, Judge. [00:22:38] Speaker 04: I mean, I'll leave it to you to decide how significant that is. [00:22:40] Speaker 04: That wasn't the crux of my argument. [00:22:44] Speaker 04: Regarding the use of the word first Tuesday, it's been stated that the word first Tuesday has been used descriptively in the advertisement. [00:22:52] Speaker 04: And that's correct. [00:22:53] Speaker 04: It's been used descriptively to mean the first Tuesday. [00:22:56] Speaker 04: It hasn't been descriptive. [00:22:57] Speaker 04: The words first Tuesday in that sentence don't convey the entire meaning. [00:23:01] Speaker 04: There's a long sentence that doesn't explain what happens on that first Tuesday. [00:23:04] Speaker 01: I know, but the problem, I think the concern is the reason why the law is the way it is, where we need to consult your specimens in advertising, is to see if you're using your proposed mark in a descriptive manner. [00:23:20] Speaker 01: And so if that sentence is in fact using these words first Tuesday, [00:23:26] Speaker 01: in a way that describes something about this lottery service, then it becomes much less likely that the consuming public is going to perceive your proposed mark as an actual mark that distinguishes the source of the service, as opposed to being something that's just an interesting descriptive element of your service. [00:23:50] Speaker 04: No, I understand. [00:23:51] Speaker 04: But there's a difference between, there's a difference in that case. [00:23:54] Speaker 04: The mark sees it as innocent. [00:23:55] Speaker 04: literally to mean the first Tuesday. [00:23:57] Speaker 04: The two words first Tuesday don't say what happens. [00:24:01] Speaker 04: Again, there's other text that explains what happens on a day. [00:24:03] Speaker 04: This is not the same as, for example, screen time. [00:24:05] Speaker 02: It's not very complicated text. [00:24:08] Speaker 04: It's not. [00:24:09] Speaker 04: And I'll get to that in a minute. [00:24:10] Speaker 04: But if we're going to have a rule of law that says the explanatory text can be attributed to the mark, then it shouldn't matter how complicated that is. [00:24:20] Speaker 04: In the swap case that was discussed a few minutes ago, he said, well, there was a lot of explanatory text in eras. [00:24:25] Speaker 04: But the fact is, in that case, the goods were watches that had swappable faces. [00:24:30] Speaker 04: And so the word swap described a feature of that. [00:24:33] Speaker 04: And if you consider the explanatory text in that Fourth Circuit case, if explanatory text could be considered, I don't know how you draw the line, well, it can only be considered if it's simple, but not if it's complicated. [00:24:45] Speaker 04: So I think the swatch case actually supports our position. [00:24:52] Speaker 04: just as the tumble bus case, which was cited in our brief. [00:24:56] Speaker 04: And the solicitor had argued that there's no evidence, that we provided no evidence on the consumer's understanding of the word, of the meaning of the word first Tuesday. [00:25:07] Speaker 04: On the contrary, as part of the record in this case, we cited the dictionary definitions of the terms first and Tuesday as evidence of what people would understand what that means. [00:25:17] Speaker 00: Thank you. [00:25:18] Speaker 00: We thank both sides, and the case is submitted.