[00:00:19] Speaker 04:
Next case is Sheila Lyons versus the American College of Veterinary Sports Medicine and Rehabilitation, 2016, 2055.

[00:00:27] Speaker 04:
Mr. Lyons, when you're ready.

[00:00:49] Speaker 03:
I may please the court.

[00:00:53] Speaker 03:
It's our position in this case that the factual underpinnings of the TTAB decision are so riddled with factual errors so as to render the decision unsupported by substantial evidence.

[00:01:07] Speaker 03:
As a matter of fact, to uphold this decision, this court would have to abandon some very well established principles regarding priority

[00:01:15] Speaker 03:
right and priority use in ownership proceedings.

[00:01:20] Speaker 04:
But I have trouble with the basic proposition that you're raising, which is that someone involved in an organization can trademark the name of the organization which she has eventually left.

[00:01:40] Speaker 04:
He's adopted as a trademark the name of the organization with which he was working.

[00:01:47] Speaker 03:
Well, that's actually not the way it happened.

[00:01:52] Speaker 03:
And that gets to the first point, which has to do with priority of ownership being derivative of first use.

[00:02:03] Speaker 03:
The appellant in this case conceived and began to use in commerce for the first time

[00:02:08] Speaker 03:
the trademark American College of Veterinary Sports Medicine and Rehabilitation in 1995, which was years before she ever became associated on, at least briefly, with this unincorporated group of association of veterinarians that ultimately would incorporate themselves using her misappropriated trade name.

[00:02:33] Speaker 03:
But when she first met with them, they were just five veterinarians.

[00:02:37] Speaker 03:
And prior to her meeting with them, for five years, she had already been using the name in commerce.

[00:02:45] Speaker 03:
And that's really the gravamen of our claim in this case that she... There were facts found, whether or not by the board.

[00:02:53] Speaker 04:
Yes.

[00:02:54] Speaker 04:
That the parties never intended that she would own the mark and that the relevant public looks to the organization for support rather than to her.

[00:03:05] Speaker 03:
Those conclusions by the board were based upon completely erroneous findings of fact.

[00:03:13] Speaker 03:
The board got many factual, many of the factual basis for that conclusion completely wrong.

[00:03:22] Speaker 03:
Besides not paying any attention or disregarding all the evidence concerning priority of use, which I think really ends the analysis, but with respect to what Your Honor is referring to,

[00:03:34] Speaker 03:
All of those conclusions by the board were based upon a series of erroneous factual findings.

[00:03:42] Speaker 02:
Was its finding of her future plans as opposed to actual use erroneous?

[00:03:53] Speaker 03:
Yes.

[00:03:53] Speaker 02:
So Equine Excellence Initiative was something more than an occasional publication?

[00:04:04] Speaker 03:
Absolutely.

[00:04:05] Speaker 03:
And Your Honor, I think... Did she maintain a mailing list?

[00:04:10] Speaker 03:
Yes, she had a list of donors and contributors.

[00:04:14] Speaker 03:
She had students.

[00:04:16] Speaker 03:
She conducted seminars and clinical educational programs.

[00:04:21] Speaker 02:
Listen to my question.

[00:04:23] Speaker 02:
Yes, Your Honor.

[00:04:23] Speaker 02:
Did she maintain a mailing list?

[00:04:25] Speaker 02:
Because the board says she did not.

[00:04:28] Speaker 03:
She did not maintain a mailing list per se.

[00:04:32] Speaker 03:
Although she conducted mailings.

[00:04:34] Speaker 02:
Did she maintain other documentation showing to whom she sent the publication?

[00:04:42] Speaker 03:
Yes, Your Honor.

[00:04:43] Speaker 03:
In the appendix beginning at 1713, there's a series of exemplar letters that she used to solicit funds in which the Equine Excellence Initiative was included.

[00:04:59] Speaker 03:
And she testified that she had

[00:05:01] Speaker 03:
provided those solicitations to over a thousand individuals before she had met this group of which she was briefly associated.

[00:05:10] Speaker 03:
So, and that gets to, I think, the erroneous factual underpinnings of the TTAB in this case.

[00:05:19] Speaker 02:
Did she, as of 2013, I guess, did she have a dedicated business location?

[00:05:25] Speaker 03:
Well, she operated out of her home.

[00:05:27] Speaker 03:
I guess you could say that's a dedicated business.

[00:05:32] Speaker 03:
But she had no permanent employees.

[00:05:35] Speaker 03:
She had no dedicated business center or an office.

[00:05:38] Speaker 03:
She had part-time students.

[00:05:40] Speaker 03:
She conducted business out of her home.

[00:05:44] Speaker 03:
But this court has consistently maintained that might does not make right.

[00:05:50] Speaker 03:
It doesn't matter how big her business organization is.

[00:05:54] Speaker 03:
The only thing that's important is that she has established the mark by using it in commerce.

[00:06:01] Speaker 03:
And that she can establish years before her association, her brief association with this group began.

[00:06:10] Speaker 03:
And it only lasted for 18 months.

[00:06:13] Speaker 03:
It was a total of three meetings, the last of which she wasn't able to participate in.

[00:06:18] Speaker 03:
But it lasted 18 months, three meetings,

[00:06:21] Speaker 03:
And during that entire time, nothing happened.

[00:06:25] Speaker 03:
One of the erroneous conclusions of the board here is that Dr. Lyons participated in some way in the preparation of this petition.

[00:06:34] Speaker 03:
But as I stated in the briefs, they got that completely wrong by confusing this informal working group with an organization of 27 veterinarians, the official organizing committee that would not come along until 2008, four years after her

[00:06:51] Speaker 03:
association, a brief association with this group of five veterinarians had ended.

[00:06:56] Speaker 03:
With respect to the five veterinarians, nothing happened.

[00:06:59] Speaker 03:
There were three meetings.

[00:07:00] Speaker 03:
There was no petition.

[00:07:02] Speaker 03:
The only thing that happened, there was a letter of intent sent to the AVMA expressing an intention to later file a petition.

[00:07:10] Speaker 03:
But as this court has consistently maintained, an expression of intent is not sufficient to establish ownership rights.

[00:07:18] Speaker 03:
And while she was doing this, before her association, during her association, after association, her association, she continued to fundraise.

[00:07:26] Speaker 03:
She continued to conduct seminars and clinical education programs.

[00:07:32] Speaker 03:
She continued to certify students, maintain websites, own domain names, and successfully raise more than $2 million.

[00:07:40] Speaker 03:
That's, in my book, a use in commerce.

[00:07:43] Speaker 03:
Before she had ever met these people,

[00:07:45] Speaker 03:
She had raised more than $510,000 in support for donations made to her organization in the name of her mark.

[00:07:57] Speaker 04:
But do I misunderstand?

[00:08:00] Speaker 04:
Is the trademark the name of the organization?

[00:08:04] Speaker 04:
The name of the organization is the trademark an issue?

[00:08:10] Speaker 04:
Yes.

[00:08:15] Speaker 03:
Mark had been using Mark since 1996.

[00:08:19] Speaker 03:
She became associated with these group of veterinarians briefly.

[00:08:24] Speaker 03:
And then eight years later, they incorporate and misappropriate her trade name.

[00:08:30] Speaker 03:
But during that entire period of time, they did nothing.

[00:08:33] Speaker 03:
There was no use in commerce.

[00:08:35] Speaker 03:
There was no publications, no education programs, no fundraising, all of the things that she had been doing for 15 years up until this point.

[00:08:44] Speaker 02:
You told me that Dr. Lyons had issued certifications.

[00:08:49] Speaker 03:
Yes.

[00:08:51] Speaker 02:
I'm looking at 535 and 536 of the appendix at the bottom.

[00:09:00] Speaker 02:
Question, do you currently have, and when I say you, I mean Homecoming Farm, does Homecoming Farm currently have any certification programs that are already in place and operating?

[00:09:10] Speaker 02:
We don't answer it.

[00:09:11] Speaker 02:
We don't have any certification problems.

[00:09:13] Speaker 02:
Is that like apples and oranges?

[00:09:19] Speaker 03:
Well, yes, I think it is apples and oranges.

[00:09:22] Speaker 03:
She does not certify veterinarians in the same way that this college does, which works under the auspices of the AVMA.

[00:09:30] Speaker 02:
So what are the certification programs?

[00:09:32] Speaker 03:
She certified veterinarians and paraprofessionals in the sport horse industry.

[00:09:40] Speaker 03:
who had taken her examination and successfully completed her training programs with respect to these specific methodologies that she had developed.

[00:09:50] Speaker 03:
Where's that in the record?

[00:09:55] Speaker 03:
I know it's in the record and I'll find it, Your Honor, because we did cite to it in our brief in chief.

[00:10:03] Speaker 03:
If you give me a moment, I'll find it.

[00:10:05] Speaker 02:
Well, you can do it on rebuttal.

[00:10:08] Speaker 03:
I will find it for you, Your Honor.

[00:10:09] Speaker 03:
It's not the same type of certification, but it's still, nevertheless, conducting educational programs and training personnel.

[00:10:19] Speaker 03:
One of the distinctions, for instance, between her educational programs and the colleges is that she did certify paraprofessionals, farriers, and people who were not licensed veterinarians.

[00:10:32] Speaker 04:
Now, apparently there are a series of other American colleges, right?

[00:10:37] Speaker 04:
There are, when it comes to naming conventions, there's all kinds.

[00:10:42] Speaker 04:
Did they exist before Dr. Lyons appropriated the name, which she said was hers?

[00:10:51] Speaker 03:
Well, I don't think there's any reservation for American College.

[00:10:59] Speaker 03:
I mean, there's American College of Pediatric, American College of Orthopedic Surgery.

[00:11:03] Speaker 04:
Yes, but not this several, a veterinary year.

[00:11:06] Speaker 04:
American colleges?

[00:11:08] Speaker 03:
Sure.

[00:11:09] Speaker 03:
With respect to specialty organizations, which I think you're talking about, and the naming conventions that are used for that, oftentimes they do use the term American college.

[00:11:21] Speaker 03:
And as Dr. Sabin, the representative from the AVMA, testified, oftentimes they do not.

[00:11:27] Speaker 03:
Sometimes they call themselves boards.

[00:11:29] Speaker 03:
Sometimes they call themselves colleges.

[00:11:32] Speaker 03:
Sometimes they don't use college or board.

[00:11:34] Speaker 03:
There's no magic with the words American College that enables the AVMA to reserve that exclusively to the use of its members who happen to seek its approval for a VSO.

[00:11:48] Speaker 03:
The American College can be used by anybody who uses it first and who actually engages in commerce with the use of the name.

[00:12:02] Speaker 03:
But as Sabin testified,

[00:12:04] Speaker 03:
Not everybody that the AVMA certifies.

[00:12:08] Speaker 03:
uses the convention American College.

[00:12:10] Speaker 00:
I understand the decision below to be focusing on kind of the point you're making right now, which is that it's not just use that it's enough.

[00:12:20] Speaker 00:
You have to show that there's this secondary meaning, and it's connected to your client's business.

[00:12:28] Speaker 00:
I think that the decision below was that had not been established.

[00:12:34] Speaker 00:
So how do you respond to that?

[00:12:37] Speaker 03:
That is one of the more troubling parts of the decision below because what it offered up is several cases by the TTAB and this article that had been written by an individual.

[00:12:52] Speaker 03:
And in looking at the rationale offered and that it was basically that the decision should not be based upon who was first to use, but when it came to a

[00:13:05] Speaker 03:
a name on the, a mark on the supplemental register that happens to be a service mark, then it has to establish secondary meaning.

[00:13:19] Speaker 03:
That I read as inconsistent with this court's holding and other circuits holding that the way you determine priority, the way you determine ownership is through priority use and through appropriation.

[00:13:33] Speaker 03:
And to that, the appellant offered evidence that the mark had achieved secondary meaning.

[00:13:44] Speaker 03:
But the reason I say it's troubling is because the board decided that prior appropriation, continuous use for 20 years, $2 million in public support, the publication of educational materials, conducting educational clinics and seminars.

[00:14:02] Speaker 03:
I'm reading, I'm reading from essentially my notes.

[00:14:06] Speaker 00:
Oh, okay.

[00:14:06] Speaker 00:
I was wondering if you're reading from the decision, because I don't see it addressing all of that at all.

[00:14:12] Speaker 03:
This is my critique of the decision.

[00:14:13] Speaker 00:
You're saying there's lots of things on the record that just aren't in the... There's lots of things in the record that... Pardon me for not... When you look at substantial evidence, I mean, we're supposed to look at the fact findings and determine whether there's substantial evidence to support

[00:14:28] Speaker 00:
the findings made, not whether there's evidence to support contrary findings.

[00:14:32] Speaker 03:
No, obviously not.

[00:14:34] Speaker 03:
And when this board, excuse me, when this court looks at a case applying the substantial evidence standard, as it's stated in online and AC Archimand, you look at the totality of the evidence and you ask whether or not

[00:14:47] Speaker 03:
a reasonable person would conclude what the board had concluded.

[00:14:53] Speaker 03:
And where the factual underpinnings of the board's decision are so riddled with errors, then there is a lack of substantial evidence in this case.

[00:15:04] Speaker 03:
And what I've tried to do in this brief is take you through almost the entire alphabet, pointing out the factual errors that the board bases its decision on in this case.

[00:15:14] Speaker 03:
And they're very basic

[00:15:16] Speaker 03:
fundamental factual errors in this case that the board has made involving the conflation.

[00:15:24] Speaker 04:
Counselor, you're basically throwing your rebuttal time.

[00:15:26] Speaker 04:
Why don't we give you two minutes back for rebuttal?

[00:15:31] Speaker 04:
That's more than generous, Your Honor.

[00:15:34] Speaker 04:
Thank you.

[00:15:37] Speaker 01:
Thank you, Your Honor.

[00:15:39] Speaker 01:
May it please the Court?

[00:15:40] Speaker 01:
My name is David Cluft.

[00:15:41] Speaker 01:
I represent the Appellee of the American College of Veterinary Sports Medicine and Rehabilitation.

[00:15:47] Speaker 01:
The college is a veterinary specialty organization that educates and certifies professionals that have already achieved a veterinary degree in an additional specialty, in this case specifically the treatment of high-performance and athletic animals.

[00:16:02] Speaker 04:
It's one... Dr. Lyons claims she used the name first in commerce.

[00:16:07] Speaker 01:
The TTAB found that she did not use the name first in commerce.

[00:16:12] Speaker 01:
The evidence that she has of her use of the name prior to her association with my client is evidence of private correspondence discussing a project that she hopes one day to complete.

[00:16:28] Speaker 01:
The testimony by Dr. Lyons is that her intention at the time was that in adopting this name, someday she would seek recognition for an organization called the American College of Veterinary Sports Medicine Rehabilitation.

[00:16:41] Speaker 01:
by the AVMA as a veterinary specialty organization.

[00:16:45] Speaker 01:
That is what she proceeded to do.

[00:16:48] Speaker 01:
You see in the Equine Excellence Initiative, the document from 1996, which is a single-space typewritten document with no logos, no adornment, and no evidence on record of to whom it was sent, except a couple affidavits suggesting that it was from some people saying that at some unspecified point in time they received it.

[00:17:08] Speaker 01:
But I'm getting away from the point.

[00:17:10] Speaker 01:
The point is that the evidence is that Dr. Lyons' intention, and that's one of the ownership factors the TTABA looked at, what the expectations of the parties were.

[00:17:20] Speaker 01:
The expectation of Dr. Lyons, as evidenced by the record, was that in using this name, and we assume for purposes of the proceedings below, that she was the first person to write it down on paper.

[00:17:31] Speaker 01:
That's the nature of organizations.

[00:17:33] Speaker 01:
Whenever you have an organization, probably somebody wrote a person wrote the name down on paper before the organization was founded and started to operate.

[00:17:40] Speaker 01:
So that's perfectly to be accepted.

[00:17:42] Speaker 01:
So we accepted for purposes below that she was the first person to write it on paper.

[00:17:46] Speaker 01:
But why did she write it on paper?

[00:17:47] Speaker 01:
Well, she testified that the idea was she was working towards a goal.

[00:17:52] Speaker 01:
And that goal was recognition of this specialty by the American Veterinary Medical Association, which is the premier

[00:17:59] Speaker 01:
veterinary organization in the country.

[00:18:03] Speaker 01:
Her further actions show, after she got together with my clients, show additional indicia that she intended for my client, the American College of Veterinary Sports Medicine and Rehabilitation, to own the mark.

[00:18:16] Speaker 01:
She called the AVMA and said, how do I start a veterinary specialty organization called the American College of Veterinary Sports Medicine and Rehabilitation?

[00:18:25] Speaker 01:
And they said, well, you can't do it alone.

[00:18:26] Speaker 01:
You have, and this is on, this is on the record in the testimony of Dr. Saban.

[00:18:30] Speaker 01:
Uh, she called, uh, I'm sorry, not in the testimony of Dr. Saban in the testimony of Dr. Lyons.

[00:18:36] Speaker 01:
She called the AVMA and they told her you need at least six veterinarians and you're an equine veterinarian.

[00:18:41] Speaker 01:
So some of them have to be canine because that's going to be an important part.

[00:18:44] Speaker 01:
And you have to form an organizing committee.

[00:18:46] Speaker 01:
That's what she did.

[00:18:47] Speaker 01:
She formed the organizing committee.

[00:18:49] Speaker 01:
When she formed the organizing committee, as the TTAB found one of the first steps is to send a letter of intent, which is a letter that has all the

[00:18:56] Speaker 01:
names and resumes of the organizing committee, plus their intention to found a new specialty organization.

[00:19:05] Speaker 01:
That's what they did.

[00:19:07] Speaker 01:
She sent a letter in with the other five veterinarians, and she testified that she consented to that, to having that sent in, that said, you know, I, Sheila Lyons, and I, Dr. Robert Gillette, and I, Dr. Hillary Clayton, all these doctors, we together want to form an organization called the American College of Veterinary Sports Medicine

[00:19:26] Speaker 01:
and the American College of Veterinary Sports Medicine and Rehabilitation.

[00:19:30] Speaker 01:
I'm sorry, Your Honors, it's hard to get through that many times fast.

[00:19:33] Speaker 01:
And we wanted to seek recognition for that organization from the AVMA.

[00:19:40] Speaker 01:
She testified as the TTAB found that she consented to having her name in that letter and to that letter using that name.

[00:19:49] Speaker 01:
So even if she had in her mind the idea that this was hers or somehow she owned it,

[00:19:55] Speaker 01:
That's not what the manifest evidence on the record shows.

[00:20:01] Speaker 01:
After the letter of intent was accepted, Your Honors, she continued to act on behalf of the organization.

[00:20:08] Speaker 01:
All the doctors were tasked with different tasks in starting to move towards the next step in the process, which was a petition.

[00:20:16] Speaker 01:
She was tasked with drafting the first draft of the bylaws.

[00:20:20] Speaker 01:
And excuse me, in order to do that, she phoned Dr. Elizabeth Saban, whose testimony is on the record in this case.

[00:20:26] Speaker 01:
And Dr. Saban testified that she got a call from the appellant.

[00:20:29] Speaker 01:
And the appellant said that, I am Dr. Sheila Lyons.

[00:20:32] Speaker 01:
I'm calling on behalf of the American College of Veterinary Sports Medicine Rehabilitation, which is, and I'm on the organizing committee seeking recognition from the AVMA.

[00:20:42] Speaker 01:
Please give me a copy of the bylaws.

[00:20:44] Speaker 01:
And that's, that's how that happens.

[00:20:46] Speaker 01:
So you see on the record evidence of,

[00:20:50] Speaker 01:
the party's intent that this would be the name of an organization.

[00:20:55] Speaker 01:
And of course, the other evidence that Your Honor pointed to is that there is an over 50-year history of a naming convention here, which is that the very first veterinary specialty organization was the American College of Veterinary Pathologists founded in 1950.

[00:21:12] Speaker 01:
And since then, there's been about 20 or so different veterinary specialty organizations recognized by the AVMA.

[00:21:19] Speaker 01:
All of them, or I'm sorry, all of them have similar names.

[00:21:24] Speaker 01:
Over half of them start with American College of Veterinary.

[00:21:27] Speaker 01:
So that's why the TTAB found that the very name, American College of Veterinary Sports Medicine and Rehabilitation, carries with it in the relevant community the idea of a seal of approval from the AVMA.

[00:21:38] Speaker 04:
In any event, she entered into a crowded field.

[00:21:42] Speaker 01:
Well, that's true.

[00:21:43] Speaker 01:
And Your Honor, we're not here to dispute the

[00:21:46] Speaker 01:
descriptiveness of the mark.

[00:21:47] Speaker 01:
The mark is ungainly.

[00:21:48] Speaker 01:
It's descriptive.

[00:21:49] Speaker 01:
And as I evidenced myself, difficult for a non-veterinarian to get through.

[00:21:54] Speaker 01:
But the issue here is not descriptiveness.

[00:21:56] Speaker 01:
It's not even secondary meaning.

[00:21:58] Speaker 01:
It's ownership.

[00:21:59] Speaker 01:
And the ownership factors are the expectations of the parties to whom the public is looking to in association with the mark and to who the public looks to to stand behind the mark.

[00:22:10] Speaker 01:
Now, if the record

[00:22:14] Speaker 01:
has evidence on it of two public-facing events involving Dr. Lyons before she was dismissed from the college.

[00:22:26] Speaker 01:
And those events are telling of what was actually happening whenever she had a public event before she was dismissed.

[00:22:36] Speaker 01:
The first event on the record is this conference in 1999 when she met Dr. Gillette.

[00:22:41] Speaker 01:
And by the way, Dr. Gillette, who was with Dr. Lyons, were the original two members, stayed on and became the chair and then the first president of the organization.

[00:22:51] Speaker 01:
So the suggestion that there's not a continuity there is just not borne out by the record.

[00:22:56] Speaker 01:
When she met Dr. Gillette at this conference in Oregon, we have Dr. Gillette's testimony on the record, and we also have the catalog from the conference on the record.

[00:23:06] Speaker 01:
And you can see from those two pieces of evidence that Dr. Lyons did not hold herself out as

[00:23:10] Speaker 01:
I have this separate organization called the American College of Veterinary Sports Medicine rehabilitation that's mine.

[00:23:16] Speaker 01:
It says, I'm Dr. Sheila Lyons from Homecoming Farm.

[00:23:20] Speaker 01:
And Dr. Gillette also testified that when she introduced herself to him for the purpose of finding a canine veterinarian partner for this organization, she also represented herself not as from an existing organization, but from Homecoming Farms and the ideas to get together and found this

[00:23:39] Speaker 01:
The second event that has is on the record that shows any kind of public event involving the appellant is in 2004, and that is the event that happened in Cape Cod.

[00:23:54] Speaker 01:
There was a talk at which the appellant talked about certain equine veterinarian issues.

[00:24:04] Speaker 01:
I'm sorry.

[00:24:05] Speaker 01:
I'm looking for the page in my notes, and I'm not finding them.

[00:24:09] Speaker 01:
Five, six, five, five, six, six.

[00:24:11] Speaker 01:
That sounds right.

[00:24:13] Speaker 01:
There was an event in Cape Cod in which she gave a talk and raised money.

[00:24:17] Speaker 01:
And at that, she was raising money in part for what she called the American College of Veterinary Sports Medicine and Rehabilitation.

[00:24:25] Speaker 01:
So the question then is, well, OK, which one did she mean?

[00:24:27] Speaker 01:
Did she mean that this was the separate organization, or does this mean my client?

[00:24:32] Speaker 01:
Well, we have that answer, because on the record, she testified in the

[00:24:39] Speaker 01:
proceeding below at Appendix 714.

[00:24:43] Speaker 01:
I'm sorry, this is not the proceeding below.

[00:24:45] Speaker 01:
I correct myself.

[00:24:45] Speaker 01:
In the District of Massachusetts proceeding, she made a different argument, which is that at that event, she was raising money for my client to pay for secretarial services that were necessary to go through the AVMA process.

[00:24:59] Speaker 01:
So clearly, even when Dr. Lyons faced the public in any way, it was, if at all,

[00:25:06] Speaker 01:
as a representative of my client.

[00:25:08] Speaker 01:
Now, it turns out that my client didn't want her to be fundraising.

[00:25:12] Speaker 01:
And that's one of the reasons that she was dismissed from the organization.

[00:25:15] Speaker 01:
But that issue is not before the court.

[00:25:19] Speaker 01:
There's one item I want to make sure.

[00:25:24] Speaker 04:
Has the Massachusetts proceeding concluded?

[00:25:27] Speaker 01:
The Massachusetts proceeding was concluded.

[00:25:30] Speaker 01:
The parties engaged in what Judge Young there called a case-stated trial.

[00:25:34] Speaker 01:
which is similar to the accelerated case resolution proceeding at the TTAB, where the summary judgment paper served as the trial record.

[00:25:41] Speaker 01:
Mr. Lyons and I then did oral arguments in front of Judge Young, and then he issued an opinion in 2014.

[00:25:48] Speaker 01:
There were multiple issues in that case, but the main issue was whether or not to refuse Dr. Lyons' attempt

[00:25:59] Speaker 01:
to register the mark on the principal register.

[00:26:02] Speaker 01:
So not the registration at issue here.

[00:26:04] Speaker 01:
That was in the case, but the principal issue was that was the principal register mark, and then also a copyright claim, and also a trademark infringement claim.

[00:26:14] Speaker 01:
So my client prevailed on all of the claims, except the judge didn't act on the supplemental register mark.

[00:26:20] Speaker 01:
And the parties entered into, frankly, his opinion was somewhat ambiguous on the supplemental register mark.

[00:26:26] Speaker 01:
So the parties entered into a settlement agreement.

[00:26:29] Speaker 01:
which stated that Judge Young's opinion was not preclusive either way as to the supplemental mark and the parties would proceed to the TTAB, and that's what they did.

[00:26:40] Speaker 01:
As I said, I would like to make sure I correct one thing for the record.

[00:26:44] Speaker 01:
In the briefs, although Mr. Lyons did mention it today, there's a suggestion that the letter of intent in 2003 had somehow expired because the petition, so in other words,

[00:26:57] Speaker 01:
Organizing committee does a letter of intent, and once the letter of intent is accepted by the AVMA, they then go on to a full petition.

[00:27:04] Speaker 01:
And there's a suggestion in the brief a couple times that the letter of intent expired because the petition wasn't filed within four years.

[00:27:12] Speaker 01:
Now, I'm not sure if he's right about that.

[00:27:13] Speaker 01:
I'm not sure where that gets him, but he's not right.

[00:27:17] Speaker 01:
The rule that he's citing, which is on Appendix 149, is the June 2011 rule, which does indeed include a four-year limitation.

[00:27:25] Speaker 01:
But the parties at the time were operating under the 2003 rules of the AVMA, because this was 2003.

[00:27:31] Speaker 01:
And that's at Appendix 605, specifically the bottom of 613 and the top of 614, where you'll see that the four-year limitation is not there.

[00:27:41] Speaker 01:
So even by the AVMA's, I'm not sure it would matter for trademark purposes, but we did not violate the AVMA's rules either.

[00:27:50] Speaker 01:
Your Honors, I'd also like to point out that on a very important point,

[00:27:56] Speaker 01:
The TTAB also ruled in favor of the college.

[00:28:01] Speaker 01:
The TTAB looked to who the relevant public is going to expect to stand behind the services that are offered in association with MARC.

[00:28:12] Speaker 01:
And it's clear that my client has over 140 veterinarians that are out there offering services under the MARC.

[00:28:19] Speaker 01:
And the very name itself, as they said, also implies that there's an association with the AVMA and that this is a going concern and a veterinary specialty organization.

[00:28:30] Speaker 01:
Importantly, we don't have to speculate about who the public will look to to stand behind the mark because it's on the record.

[00:28:37] Speaker 00:
When the Cape Cod... What's the status of your client's use of the mark right now?

[00:28:42] Speaker 01:
My client's been using the mark... I'm sorry, Your Honor, are you talking about use or registration?

[00:28:48] Speaker 04:
Use.

[00:28:49] Speaker 01:
My client uses the mark on its webpage.

[00:28:52] Speaker 01:
It uses the mark to certify veterinarians.

[00:28:55] Speaker 01:
It uses the mark in conjunction with annual conferences, which are sponsored by Purina and NutriMax.

[00:29:02] Speaker 01:
It uses the mark on the AVMA website as the reference source for the general veterinary public to look to.

[00:29:12] Speaker 04:
You say your client uses the mark.

[00:29:15] Speaker 04:
Is it registered?

[00:29:16] Speaker 01:
No, Your Honor, we have an application to register the mark on the principal register.

[00:29:21] Speaker 01:
And that application has been suspended pending the outcome of these proceedings.

[00:29:26] Speaker 01:
My client was made up of purely veterinarians.

[00:29:30] Speaker 01:
They did not think to register a mark at first in 2004.

[00:29:35] Speaker 01:
And when Dr. Lyons was dismissed from the organization, she registered the mark on the supplemental register.

[00:29:40] Speaker 01:
So it wasn't published for all.

[00:29:41] Speaker 04:
Do all the other colleges have registered marks?

[00:29:45] Speaker 01:
I think about half of them do.

[00:29:46] Speaker 01:
And I could be wrong.

[00:29:49] Speaker 01:
I mean, that's a matter of public record.

[00:29:50] Speaker 01:
But the only reason I know that is when sometimes I'm looking up my client's mark, I type in the wrong thing, and up come the other marks.

[00:29:57] Speaker 01:
But there are a few of them on there.

[00:29:58] Speaker 01:
And I know one of them is the American College of Veterinary Surgeons, which is another AVMA recognized veterinary specialty organization with which my client conducts an annual conference.

[00:30:11] Speaker 01:
Your Honor,

[00:30:13] Speaker 01:
For all the reasons that I stated, I would ask that the court affirm the decision of the TTAB.

[00:30:19] Speaker 01:
There's adequate and substantial and, indeed, overwhelming evidence to support it.

[00:30:25] Speaker 01:
And as the TTAB found, it will accrue to the benefit of the veterinary public and the public in general for the right party to be the registered owner of the mark.

[00:30:35] Speaker 01:
Thank you very much.

[00:30:36] Speaker 04:
Thank you, Mr. Kluft.

[00:30:38] Speaker 04:
Mr. Lyons has a couple of minutes.

[00:30:43] Speaker 02:
I have a couple of questions.

[00:30:44] Speaker 02:
Yes, sir.

[00:30:46] Speaker 02:
In the red brief, well, I'm looking at the appendix 686, 687, which is a part of the submission to the college and deals with the resume of Dr. Lyons and says she has a PhD.

[00:31:07] Speaker 02:
The red brief says that she does not have a PhD.

[00:31:11] Speaker 02:
It also says that she claims to have participated in an academic fellowship in human medicine.

[00:31:21] Speaker 02:
And I read that testimony closely.

[00:31:23] Speaker 04:
Yes.

[00:31:26] Speaker 02:
But there doesn't seem to be any documentation on that.

[00:31:29] Speaker 02:
So tell me one.

[00:31:31] Speaker 02:
Does she have a PhD?

[00:31:32] Speaker 03:
No.

[00:31:33] Speaker 03:
That's a common appellation and a common mistake that's made with respect to designating veterinarians.

[00:31:39] Speaker 03:
Veterinarians, for instance, in England are referred to as PhDs.

[00:31:45] Speaker 03:
In the United States, it's a DVM.

[00:31:47] Speaker 03:
This resume that was put together was not put together by Dr. Lyons, and she never represented or held herself out as having a PhD.

[00:31:56] Speaker 03:
As I said, it was an era which may have an innocent cause, but it had nothing to do with her misrepresenting her credentials.

[00:32:05] Speaker 03:
It's something that's commonly done with veterinarians.

[00:32:08] Speaker 02:
And on her testimony about her fellowship, it was fuzzy, to say the least.

[00:32:16] Speaker 02:
Well, she testified that she... For instance, that she didn't have any kind of credentials for the hospital, so on.

[00:32:27] Speaker 03:
That's right.

[00:32:28] Speaker 03:
At the time that that fellowship program was conducted at New England Baptist Hospital under

[00:32:34] Speaker 03:
an orthopedic surgeon by the name of Lyle McKaylee.

[00:32:38] Speaker 03:
There were no diplomas, certifications.

[00:32:42] Speaker 03:
She was one of the first to go through that program.

[00:32:46] Speaker 02:
What was the program?

[00:32:47] Speaker 02:
Where is it laid out?

[00:32:48] Speaker 02:
Because it doesn't appear in the record.

[00:32:49] Speaker 03:
It's not in the record.

[00:32:51] Speaker 03:
And there were no materials that we could obtain because it had happened so long ago in order to document the program.

[00:33:02] Speaker 03:
All they have is her testimony.

[00:33:04] Speaker 03:
But she testified very clearly.

[00:33:07] Speaker 03:
And the evidence is in the record in terms of how her veterinarian methodology was developed.

[00:33:16] Speaker 03:
It's all based upon the human model, which was... Mr. Lyons, do you have a couple of thoughts on the model?

[00:33:23] Speaker 03:
Last thing I would say, and I would only ask the Court to look at the letters and correspondence

[00:33:31] Speaker 03:
beginning on 1707 and going through 1842, which are the correspondence involving fundraising that was done long before Dr. Lyons ever met anyone associated with the college and the tax returns that document her successful fundraising activities, which we believe constitute a prior use, a prior commercial use of the mark, establishing a priority right.

[00:33:57] Speaker 03:
Thank you.

[00:33:57] Speaker 04:
Thank you, Counsel.

[00:33:58] Speaker 04:
We'll take the case under advisement.