[00:00:00] Speaker 03: I must tell you with regrets and apologies that an emergency has intervened. [00:00:06] Speaker 03: Judge Raina will not be able to sit with us. [00:00:09] Speaker 03: He will listen to our arguments and will participate in our deliberations. [00:00:15] Speaker 03: He's provided us with a list of some points that he'd like us to be sure to ask you to cover, and we will do so. [00:00:25] Speaker 03: So again, with apologies on behalf of all of us. [00:00:30] Speaker 03: And with your agreement, we will continue with the program. [00:00:37] Speaker 03: Okay, the first argued case this morning is number 162181, in way William D. Hober. [00:00:46] Speaker 03: Mr. Boyd. [00:00:51] Speaker 00: Thank you, and good morning, Your Honors. [00:00:52] Speaker 00: My name is Thomas Boyd. [00:00:53] Speaker 00: I'm here on behalf of the appellant William D. Hober, Inc. [00:00:57] Speaker 00: This appeal involves an application to register a uniquely designed trigger guard that has acquired distinctiveness in the custom gun market, and I want to stress that. [00:01:08] Speaker 00: We're seeking protection just in the custom gun market. [00:01:12] Speaker 00: We're not seeking to register all trigger guard configurations, and we're not seeking protection across the entire gun market, just the custom gun market, which caters to gunsmiths who assemble custom guns [00:01:26] Speaker 00: and gun aficionados who purchase and collect those guns. [00:01:31] Speaker 02: You say that it's a very specific construction or configuration and yet isn't it the picture that defines the mark? [00:01:41] Speaker 02: Not the words that you used to describe it? [00:01:44] Speaker 00: We agree with that. [00:01:45] Speaker 00: That's absolutely right. [00:01:47] Speaker 00: And in fact, when we initially filed the application, we just described it as a distinctive trigger guard profile. [00:01:55] Speaker 00: amended the description to be responsive to the examining attorney, not because we were seeking greater protection. [00:02:01] Speaker 00: And it is just the design that we're seeking to protect and just with regard to the custom gun market. [00:02:10] Speaker 00: This case, and I'll get right to the heart of functionality, there are issues relating to whether it's a functional design and also acquired distinctiveness, but turning to functionality [00:02:21] Speaker 00: The determination as to functionality in this case is not only controlled by the Morton Norwich products case, but the treatment of this application is very similar and analogous to the way in which the examining attorney in the board treated the application in Morton Norwich. [00:02:37] Speaker 00: In that case, the examining attorney and the board steadfastly refused to accept that the design of the spray bottle for application of household cleaning supplies could be non-functional. [00:02:50] Speaker 00: Instead of relying on evidence, as this court recognized, the examining attorney and the board each expressed mere opinions and not an iota of evidence. [00:03:02] Speaker 00: That's what's occurred in this case. [00:03:04] Speaker 02: You treat the Morton Norwich factors as a balancing test. [00:03:11] Speaker 02: What support you have for that proposition? [00:03:14] Speaker 00: The case itself, Morton Norwich described that discussion [00:03:19] Speaker 00: as a discussion of the principles of law that must be applied and discuss the development of the case law in that area. [00:03:27] Speaker 00: I understand that the government is now describing Morton Norwich as more of a survey and a non-exclusive listing of factors. [00:03:36] Speaker 00: But in fact, the decision itself speaks for itself. [00:03:39] Speaker 00: It's referring to the principles of law. [00:03:42] Speaker 00: It states that the principles of law that must be applied to this analysis. [00:03:46] Speaker 00: And that has been the tradition. [00:03:48] Speaker 00: And for that matter, those are the factors that the examining attorney applied. [00:03:53] Speaker 00: When the examining attorney asked my client to provide information, the attorney asked for the information relating to those four factors. [00:04:03] Speaker 00: So those have been the factors at issue in this case. [00:04:06] Speaker 02: Let me focus on this issue of the presence or absence of a utility patent. [00:04:13] Speaker 02: presence of a utility patent is meaningful under Morton Norwich. [00:04:17] Speaker 02: What authority do you have for the proposition that the absence of a utility patent is important? [00:04:23] Speaker 00: Again, Morton Norwich, which starts with the proposition that the government has the burden to establish a prima facie case. [00:04:31] Speaker 00: And so Morton Norwich says one way to build that or meet that burden is to demonstrate that there had been some utility patent at some point. [00:04:41] Speaker 00: I don't have a case that says the absence of a utility patent demonstrates non-functionality, but it does demonstrate that the government has failed to meet its burden on that factor. [00:04:51] Speaker 02: Well, it demonstrates that as to that particular factor that Morton Norwich said might be one thing you could point to, they're not able to point to that factor. [00:04:59] Speaker 02: But it's not a negative implication, is it? [00:05:02] Speaker 00: It's not a negative implication per se, but again, I would also point out that's the first factor. [00:05:08] Speaker 00: And in most cases, that's the death knell. [00:05:11] Speaker 00: If there's been a utility patent, it's very difficult to get past functionality. [00:05:15] Speaker 00: And typically, when you have a utility patent, you also have advertising touting functionality. [00:05:21] Speaker 00: We have none of those here. [00:05:23] Speaker 00: In the most recent case that this court has decided on this issue, the Becton-Dickinson Company case, which the government relies on quite a bit, those are the factors that demonstrated the prima facie case. [00:05:38] Speaker 00: A utility patent. [00:05:40] Speaker 00: and advertising touting the functionality. [00:05:44] Speaker 00: We had none of those here, which again brings me back to my threshold and central point. [00:05:50] Speaker 00: The government didn't meet its burden to establish a prima facie case that this particular design of this particular trigger guard in the custom gun market is functional, the design. [00:06:05] Speaker 00: Instead, they bypassed that entire analysis [00:06:09] Speaker 00: and just declared all trigger guards are functional, all trigger guards are ovals and therefore we can't tell the difference. [00:06:18] Speaker 02: In fairness the board was focused under Morton Norwich on the competition as being the crux of the inquiry and you know there is, the government puts in a chart from the red brief that certainly shows that [00:06:37] Speaker 02: they're all at least oval-shaped, or loop-shaped. [00:06:43] Speaker 02: I mean, I don't really see what is so unique about the mark that you're proposing. [00:06:49] Speaker 00: And you and I, the examining attorney and the board, may be of that opinion, but we're not in the best of... You don't know how much I shoot. [00:06:57] Speaker 02: I'm sorry, and you... You can guess, it's probably not like that. [00:07:01] Speaker 00: But if you were like I, and don't shoot, and I'm not an aficionado, [00:07:06] Speaker 00: I would look at that more generally. [00:07:09] Speaker 00: But a gunsmith and a collector in this market doesn't see it as an oval or a loop. [00:07:16] Speaker 00: They see it as a bow. [00:07:17] Speaker 00: And we've submitted 35 declarations from gunsmiths and gun aficionados who say this is a recognized bow profile. [00:07:26] Speaker 00: There's no reference to loops or ovals. [00:07:28] Speaker 02: So the fact that the board... Would the same, have you submitted the same declarations to say that all the rest of these competitors wouldn't be characterized as a Bowe profile? [00:07:40] Speaker 00: No, because we didn't have the survey that's appeared in the appellate's brief. [00:07:47] Speaker 03: Isn't the problem that the board felt that acquired distinctiveness, the characteristics of trademarks rather than patents? [00:07:56] Speaker 03: had not been adequately established. [00:07:59] Speaker 00: That's correct. [00:08:00] Speaker 03: This is really what it's about. [00:08:02] Speaker 03: Is it not? [00:08:04] Speaker 03: Because we don't know, and it was conspicuous that there was no application for a design patent. [00:08:11] Speaker 03: But design patents have a short life, and whether or not it's available, it's easy to understand why a trademark would be a preferable direction. [00:08:21] Speaker 03: But there is a heavier, more significant burden [00:08:26] Speaker 03: Is there not of the market recognition and distinctiveness of when one looks at the pictures of all of the other guards? [00:08:37] Speaker 03: It is that this is a small difference that experts or perhaps people in this field would recognize. [00:08:44] Speaker 03: Isn't that the burden that had to be met? [00:08:47] Speaker 00: On the second issue with regard to acquired distinctiveness. [00:08:50] Speaker 00: Yes. [00:08:51] Speaker 00: And we recognize that [00:08:52] Speaker 00: When we get to that inquiry, the burden is on the applicant to establish that it's acquired distinctiveness. [00:09:01] Speaker 00: With regard to that page 28 of their brief with all of the different photos, I would submit there is no evidence that those are photos of trigger guards that are used in the custom gun market. [00:09:15] Speaker 00: For example, if there are Remingtons in there that sell for $45 to $100 as compared to ours, which sells for about $400. [00:09:25] Speaker 03: But isn't that burden on the applicant? [00:09:28] Speaker 00: The burden certainly is. [00:09:29] Speaker 03: To show all of the distinctions that you're telling us? [00:09:32] Speaker 00: That's correct. [00:09:33] Speaker 00: And we believe that the declarations. [00:09:34] Speaker 02: Did you define the genus for your marks as defined by a price point? [00:09:41] Speaker 00: We did in the sense that it's the custom [00:09:46] Speaker 00: custom gun market it's recognized by the board that guns of this quality typically sell for thousands of dollars north of even ten thousand dollars and that the trigger guard that we supply to the custom gun market sells for four hundred plus dollars but I'm trying to understand why that makes a difference in terms of what it looks like and whether it serves a function [00:10:12] Speaker 00: Well, it makes a difference in terms of the discerning clientele. [00:10:17] Speaker 00: Somebody in the custom gun market, whether it's a gunsmith or an aficionado, is going to have a more discerning eye when they're buying a trigger guard for $400, as opposed to a mass-produced trigger guard that Remington might sell for $50 or $100. [00:10:40] Speaker 03: Another aspect which comes to mind is that in fact, with experience and with time, the distinctiveness, the public recognition, whether one decides which weapon they're going to buy because of the looks of the trigger guard, if in fact that is a factor that can be demonstrated with time, then you're not really out of court, so to speak, at this stage. [00:11:09] Speaker 00: If the court reverses on functionality, that's correct. [00:11:13] Speaker 03: Well, it might be that you haven't overcome a presumption of functionality which does, we have a trigger guard as a function, and the fact that it's got a little notch in it or whatever doesn't make much of an impression perhaps on those who aren't [00:11:37] Speaker 03: operating in this field. [00:11:39] Speaker 00: And respectfully, I would point out it's not a presumption of functionality. [00:11:43] Speaker 00: It's a presumption that it's not functional. [00:11:45] Speaker 00: And the burden is on the government to establish that our design is functional. [00:11:50] Speaker 00: They have the burden, not us. [00:11:53] Speaker 00: And they fail to meet their burden. [00:11:54] Speaker 00: We believe the court should reverse the government on functionality. [00:11:58] Speaker 02: Distinctiveness, the acquired distinctiveness, is not relevant to the functionality question, is it? [00:12:03] Speaker 00: That I believe some of the evidence can address both, but they are separate issues. [00:12:08] Speaker 00: That's correct. [00:12:10] Speaker 02: And your price point and custom gun market goes to acquire distinctiveness, right? [00:12:15] Speaker 00: Well, it also goes to the fourth factor of Morton Norwich. [00:12:20] Speaker 00: The government conceded that as the record demonstrates, and this is the board conceded in the opinion, that the record established that our costs are higher and therefore the comparative [00:12:32] Speaker 00: Cheapness, if that's a poor word, but the comparative expense does not favor a finding of functionality. [00:12:43] Speaker 00: And I don't want to leave your question unanswered, but I'd like to preserve some time for rebuttal, if I may. [00:12:48] Speaker 03: Yes. [00:12:49] Speaker 03: OK. [00:12:50] Speaker 03: Let's hear from the government. [00:12:51] Speaker 00: Thank you. [00:12:51] Speaker 03: Mr. Casagrande. [00:13:01] Speaker 01: Good morning and may it please the court. [00:13:03] Speaker 01: I just wanted to, he said it was the government's burden to prove functionality. [00:13:08] Speaker 01: It's the government's burden to show a prima facie case of functionality. [00:13:12] Speaker 01: And what's in the record are four definitions of trigger guards as a loop surrounding a trigger, a kind of loop, a loop, a semi-circular band of metal. [00:13:23] Speaker 01: So there are four definitions. [00:13:25] Speaker 01: And then there are dozens, literally dozens of [00:13:29] Speaker 01: of trigger guards from third parties that meet that definition. [00:13:33] Speaker 01: So what we've got here is a case where the general shape is functional and there are only insignificant parts of it that are potentially arbitrary, according to Hauber. [00:13:46] Speaker 02: And so that's a... I have a question though about the record. [00:13:49] Speaker 02: You say that you actually, the board actually found that the trigger guard or that the design makes the trigger guard stronger or more durable. [00:13:59] Speaker 02: And they also said that it has its shape because it works better in that shape. [00:14:04] Speaker 02: But I didn't see any actual evidence in the record to support those sort of generalized conclusions. [00:14:11] Speaker 01: There were really two things that they said, and they were not on this third Morton-Norwich factor, which they said was the primary consideration, but they were talking about kind of what the, in the absence of a patent saying what the shape does, they were saying, well, it's pretty obvious to us [00:14:27] Speaker 01: that if it widens where it attaches to the bottom of the gun, that increases its strength, which, as we pointed out in our brief, is basically almost a common-sense scientific fact. [00:14:38] Speaker 01: And they also said that it's got to be a little bit wider at the front where you have that latch, where you have that little pivot. [00:14:44] Speaker 01: When you say they, the board said this. [00:14:47] Speaker 01: The board said this. [00:14:48] Speaker 01: The board said it's a little bit wider at the front to accommodate the pivot point for the latch that releases the bottom metal from the front of the [00:14:56] Speaker 01: the bottom metal of the trigger, which is not claimed in this thing. [00:14:59] Speaker 01: So those are general observations they were making, but they're not really pertinent to the primary thing. [00:15:05] Speaker 02: So you're saying the board just used its own expertise to reach this conclusion? [00:15:10] Speaker 01: On those two, it was essentially making common sense observations that you could see from the picture or the drawing of the mark itself. [00:15:19] Speaker 01: But they weren't part of the third Morton-Norwich factor, upon which they primarily made their decision. [00:15:26] Speaker 02: Do we need to rely on those findings as it relates to functionality, since they're really not based on any evidence in the record? [00:15:36] Speaker 01: You don't need to rely on them to find that this was a functional design, no. [00:15:41] Speaker 02: What about if the third factor relates to competition? [00:15:45] Speaker 02: And I know we've said in value engineering that that's really the crux of the inquiry. [00:15:49] Speaker 02: What about the fact that there are apparently different gun markets, a custom gun market versus a non-custom gun market? [00:15:57] Speaker 01: I don't know that the evidence shows that there is a custom gun market. [00:16:02] Speaker 01: In fact, there was a small blog post they put in from, I think, Field and Stream magazine that basically was giving advice to first-time buyers of custom guns about things they should think about before they go ahead and get one because, obviously, they're prestigious to have because they're very expensive. [00:16:20] Speaker 01: And so I don't know that there's a clean definite or a clean break between what they wanted to find as a custom gun market [00:16:27] Speaker 01: and the gun market in general. [00:16:30] Speaker 03: I don't think it's prohibited that something that serves a purpose also serves a trademark role. [00:16:41] Speaker 03: And they're not saying that by so doing, that would be the end of the trigger guard markets, as your record showed. [00:16:49] Speaker 03: There are dozens of trigger guards. [00:16:52] Speaker 03: And they look to the unskilled eye [00:16:58] Speaker 03: pretty similar to this one. [00:17:00] Speaker 03: However, experts and participants might see an additional value. [00:17:06] Speaker 03: But I was taken by the issue of proof of acquired distinctiveness. [00:17:14] Speaker 03: So would you again review for us the board's reasoning on that? [00:17:20] Speaker 01: OK. [00:17:22] Speaker 01: Before I get to the acquired distinctiveness, I just wanted to amplify that. [00:17:26] Speaker 01: I think there was some conflation of what the market impact was on functionality and really the fact that it might be a very specific market doesn't really affect the functionality inquiry. [00:17:39] Speaker 01: An oval trigger guard is there to protect the trigger. [00:17:42] Speaker 01: It doesn't matter whether a first-time gun shooter is using it or a custom gun aficionado. [00:17:48] Speaker 01: But as to acquired distinctiveness, which was your question, I think if you [00:17:54] Speaker 01: First of all, it has to be substantially exclusive use, and it has to be continuous use. [00:18:01] Speaker 01: And what we've got in the record is so many similar-looking trigger guards. [00:18:05] Speaker 01: And in fact, to my eye, three of them are identical. [00:18:10] Speaker 01: And so you don't have substantially exclusive use. [00:18:12] Speaker 03: But maybe in your eye, perhaps, as an active participant in this field, there were representations from those who [00:18:24] Speaker 03: to what might look to me as a small difference, might consider it a large difference, that it was significant. [00:18:30] Speaker 01: None of them, whether it was Mr. Huber's declaration or any of the customers in the custom gun industry who had a lot of experience, none of them explained what it was that made the difference. [00:18:42] Speaker 01: They all said, oh, it's distinctive, but they did not explain what it was. [00:18:47] Speaker 01: And that's one of the things that the board relied upon, was the fact that none of these people could actually explain what made this difference. [00:18:53] Speaker 01: And in fact, the appellant tried to do that by taking a picture of the mark without the dotted out stuff and putting in a description of different parts of it. [00:19:07] Speaker 01: And as we pointed out in our brief, that applies to all the other orals as well. [00:19:11] Speaker 01: So there's nothing about how they defined it. [00:19:13] Speaker 01: Even they couldn't define what it was that made these different. [00:19:19] Speaker 03: But the trademark application would be [00:19:23] Speaker 03: not for whatever it is that made it different, but for the picture of the trigger guard, is it not? [00:19:30] Speaker 01: That's correct, Your Honor. [00:19:33] Speaker 02: It's not in the record that I could find anyway, but are there any other registered marks for trigger guard designs? [00:19:42] Speaker 01: We couldn't find any. [00:19:44] Speaker 01: They put in some evidence of entire handguns [00:19:47] Speaker 01: And they also put in evidence that a couple of their prior registrations incorporate a trigger guard design, but it's not the same one that we have before us here. [00:19:58] Speaker 01: So beyond that, I didn't see anything. [00:20:00] Speaker 02: Am I correct that the record does talk about advertising expenditures, but there is nothing in the record that ties the advertising expenditures just to the trigger guard? [00:20:14] Speaker 01: That's correct, Your Honor. [00:20:16] Speaker 01: First of all, there's just a snapshot of essentially a web page in 2013 or a couple of web pages. [00:20:24] Speaker 01: On those, the most prominent thing on the page is Swift Blackburn, which is their word mark. [00:20:30] Speaker 01: And then there are pictures of the guns in which they say, look for the bow profile. [00:20:35] Speaker 01: But as we also pointed out, that can be said of any of the other ones. [00:20:39] Speaker 01: So that is not a way to distinguish these particular gun trigger guards. [00:20:46] Speaker 01: Secondary meaning or acquired distinctive is something that develops over time. [00:20:50] Speaker 01: And we don't have anything in the record from what Mr. Blackburn did between 1964 and 2011. [00:20:55] Speaker 01: There are no advertisements, no pictures of him at trade shows, nothing to indicate what he did to basically educate the people in the market he was selling to, this is what my trigger guard is. [00:21:07] Speaker 01: We don't have any sales data whatsoever. [00:21:11] Speaker 01: We don't have how much was spent on advertising. [00:21:14] Speaker 01: And there's something interesting in one of the articles that the appellant put in that talked about the transaction in which Mr. Blackburn sold his rights to the Hober Company. [00:21:27] Speaker 01: And that was that there were long gaps in the availability of this trigger guard. [00:21:32] Speaker 01: And then they quoted Mr. Hober saying, and now that I've got it, you'll be able to get the product. [00:21:38] Speaker 01: So that seems to undercut continuous use as well. [00:21:45] Speaker 01: If there are no further questions. [00:21:49] Speaker 03: Any more questions? [00:21:50] Speaker 03: Let me just see if I can summarize. [00:21:52] Speaker 03: The position is that it is not necessarily excluded from access to the trademark law, but that there was a failure of proof of trademark use and entitlement. [00:22:07] Speaker 01: Yes, exactly. [00:22:08] Speaker 01: It's not a per se rule that trigger guards or oval trigger guards themselves are [00:22:12] Speaker 01: incapable. [00:22:13] Speaker 01: For example, if you had a trigger guard where they would take the trigger guard that they have and there were little stars etched into the side of it. [00:22:21] Speaker 01: That part of it could be potentially a trademark, kind of like a Louis Vuitton handbag that has LV etched into the fabric on the side of it. [00:22:30] Speaker 01: But that's not what we have here. [00:22:32] Speaker 01: They're coming in just for the basic shape of an oval. [00:22:37] Speaker 01: So it was a failure of proof. [00:22:39] Speaker 03: Okay. [00:22:40] Speaker 01: Thank you. [00:22:45] Speaker 03: Mr. Boyd, perhaps the question is whether such proof would be more reasonably available with the passage of time, or whether the issue is impossible for the proof. [00:23:00] Speaker 00: On acquired distinctiveness? [00:23:01] Speaker 03: Yes. [00:23:03] Speaker 00: I believe that the record provides that evidence now, but certainly with additional time, we would be able to provide further evidence and greater support to demonstrate acquired distinctiveness. [00:23:16] Speaker 00: Mr. Blackburn's declaration, I think, is quite clear. [00:23:19] Speaker 00: He's been designing and making this trigger guard since the 1960s. [00:23:24] Speaker 00: And he states clearly he's been doing so continuously and exclusively. [00:23:31] Speaker 00: And the people, his clients and others in the custom gun market, have commented to him throughout that time how distinctive the trigger guard is and how they recognize his trigger guard even without seeing his name. [00:23:45] Speaker 02: Do you agree with my reading of the record that there's nothing in the record that indicates that the advertising that you say you have expended is tied to the trigger guard? [00:24:00] Speaker 00: I would disagree with that. [00:24:02] Speaker 00: The advertising touts the unique design. [00:24:06] Speaker 02: Among many other things. [00:24:10] Speaker 00: Well, when we're talking about the trigger guard, the trigger guard [00:24:15] Speaker 00: The trigger guard is all we sell. [00:24:17] Speaker 00: We sell ammunition, but in terms of gun metal and other gun parts, it's the trigger guard. [00:24:25] Speaker 00: And we describe it consistently as the bow-shaped profile that is distinctive, that is iconic, that has been come to be recognized for its quality in the gun, custom gun market. [00:24:39] Speaker 00: So our advertising [00:24:42] Speaker 00: dwells on that. [00:24:43] Speaker 00: It says nothing about touting functionality. [00:24:45] Speaker 00: It's quite a bit about touting the unique design. [00:24:51] Speaker 00: With regard to whether or not we're seeking protection just in the gun market, custom gun market, and whether there is such a market, prior to this appeal that was undisputed. [00:25:02] Speaker 00: In the board's decision on page two, they recognize that we're just seeking protection for custom guns [00:25:11] Speaker 00: And on page 29 of the board's decision, they recognize, quote, the relevant purchasing public would comprise consumers who are knowledgeable about custom guns and are willing to pay an appropriate amount of money for them. [00:25:28] Speaker 00: The board recognized that in their decision with regard to acquired distinctiveness. [00:25:36] Speaker 00: In terms of the [00:25:38] Speaker 00: the government's criticism that none of the declarants explained what was unique or what was iconic. [00:25:45] Speaker 00: That's not necessary. [00:25:47] Speaker 00: Ford didn't explain what was unique about the roofline and they were able to get that registered for their Ford Mustang. [00:25:57] Speaker 00: But we have done more than that. [00:26:00] Speaker 00: The declarants have said what is unique is the bow-shaped design. [00:26:04] Speaker 00: And again, [00:26:05] Speaker 00: To the lay person, maybe trigger guards look like ovals and loops. [00:26:10] Speaker 00: But all 35 of these declarants have said to us, it looks like a bow. [00:26:16] Speaker 00: Not just a bow, but a distinctive bow that bows out to the left, to my left, towards the butt of the rifle. [00:26:24] Speaker 00: And that is unique. [00:26:25] Speaker 00: To us, that's the Blackburn signature. [00:26:31] Speaker 00: Going back to one additional point, [00:26:35] Speaker 00: on functionality. [00:26:37] Speaker 00: There was some discussion about whether or not our design provides greater durability or strength. [00:26:42] Speaker 00: There's no evidence in the record to support that. [00:26:45] Speaker 00: That was something that wasn't even discussed or raised by the examining attorney or at any time prior to the argument before the board, at which time one of the board members or one of the members on the panel posited that as a possibility. [00:27:00] Speaker 00: But there's no evidence to support that. [00:27:02] Speaker 00: I believe I'm running into [00:27:04] Speaker 00: I'm running over my time. [00:27:07] Speaker 03: But to just add another moment or so, is this a matter of copying and imitation? [00:27:15] Speaker 03: I'm trying to understand. [00:27:17] Speaker 03: In fact, it seems to me as a lay person that a custom gun or any gun is not purchased because of what on its face looks like a small, to me, barely discernible difference in the trigger guard. [00:27:34] Speaker 03: And so what would be achieved if you prevail on this issue? [00:27:41] Speaker 03: You're not saying that having this trademark trigger guard is something that's going to make a difference to the consumer. [00:27:50] Speaker 00: It will. [00:27:51] Speaker 00: We're saying that it does make a difference to the consumer. [00:27:54] Speaker 00: Again, stressing that we're talking about the custom gun market. [00:27:57] Speaker 03: Yes. [00:27:57] Speaker 00: So these are custom-made guns that have to be unique. [00:28:01] Speaker 00: So by definition, [00:28:03] Speaker 00: This has to be a custom made and unique piece as opposed to a trigger guard that another gunsmith might make. [00:28:12] Speaker 00: This has to be unique. [00:28:14] Speaker 00: The design is necessarily important to the gunsmith who assembles the gun and to the aficionado who collects and purchases these guns. [00:28:25] Speaker 00: So the design, all rifles need a trigger guard. [00:28:28] Speaker 00: There's no dispute about that. [00:28:30] Speaker 00: But what's unique is our design, the look for design that everyone in this custom market associates with Blackburn. [00:28:39] Speaker 02: Why didn't you try to file on the supplemental register? [00:28:45] Speaker 00: Because we believed that it was not functional and that we had acquired distinctiveness. [00:28:52] Speaker 00: If this court holds that the government erred on functionality and reverses on that, [00:29:00] Speaker 00: but you conclude that we haven't met our burden on acquired distinctiveness, then we would ask that you remand and permit us to amend to the supplemental register. [00:29:12] Speaker 03: OK. [00:29:13] Speaker 03: Thank you. [00:29:13] Speaker 00: Thank you very much for your time. [00:29:15] Speaker 03: Your case is taken under submission.