[00:01:14] Speaker 03:
Okay, our next case is number 16, 2497, Converse Inc.

[00:01:22] Speaker 03:
versus IPC.

[00:01:24] Speaker 03:
Mr. Reck.

[00:01:37] Speaker 06:
Good morning, Your Honors.

[00:01:38] Speaker 06:
This appeal is about the Commission's over-reliance on a flawed survey to strip trademark protection from one of the most iconic product designs in American history.

[00:01:48] Speaker 06:
It's also about the Commission's improper reliance on third-party use divorced from the consumer's perspective.

[00:01:57] Speaker 06:
Both of these are legal errors and both require reversal of the Commission's secondary meaning determination.

[00:02:03] Speaker 05:
I have a threshold question.

[00:02:05] Speaker 05:
I frankly find this

[00:02:07] Speaker 05:
incredibly confusing about what we're supposed to do with the commission's tests and how we're supposed to review it.

[00:02:12] Speaker 05:
But I understand for the secondary meaning tests, there are seven factors that the commission makes and that those are factual findings, right?

[00:02:20] Speaker 07:
Yes, Your Honor.

[00:02:20] Speaker 05:
And so we would review their findings on that for substantial evidence.

[00:02:23] Speaker 07:
Correct.

[00:02:25] Speaker 05:
Their ultimate finding as to whether their secondary meaning or not.

[00:02:29] Speaker 05:
Is that also a factual determination that we review for substantial evidence?

[00:02:33] Speaker 06:
I believe, yes, it is the ultimate determination.

[00:02:36] Speaker 06:
But there are legal issues associated with the sub-factors that we believe were legally erroneous.

[00:02:42] Speaker 06:
And if I may.

[00:02:43] Speaker 01:
Do you agree that those seven factors are the factors that we should be employing?

[00:02:49] Speaker 06:
Well, to the extent it's the commission's precedent, yes.

[00:02:51] Speaker 06:
Other factors are considered by courts as well.

[00:02:54] Speaker 06:
So for example, an additional factor that courts consider probative of secondary meaning is enforcement efforts.

[00:03:01] Speaker 06:
That isn't one of the factors.

[00:03:03] Speaker 06:
What have we said about it?

[00:03:03] Speaker 06:
Have we blessed the seven factors?

[00:03:06] Speaker 06:
I don't believe so, not specifically, no.

[00:03:08] Speaker 01:
And are there other, are there regional circuits that do not bless those seven factors?

[00:03:14] Speaker 06:
I think generally speaking the regional factors are in parallel with the factors.

[00:03:20] Speaker 06:
However, the weight that they're given is substantially different.

[00:03:23] Speaker 06:
So, for example, here... You mean in terms of the significance of survey evidence?

[00:03:28] Speaker 03:
Exactly, Your Honor, yes.

[00:03:31] Speaker 01:
Are there any other courts that give such substantial weight to survey evidence?

[00:03:37] Speaker 06:
There are, but I believe the majority of courts do not give substantial weight to survey evidence.

[00:03:42] Speaker 06:
Survey evidence, as with all other evidence, is but one factor in the ultimate determination of secondary meaning in most circuits.

[00:03:50] Speaker 01:
Let me ask you a housekeeping issue.

[00:03:53] Speaker 01:
We've got the registered mark, and we have the common law mark.

[00:03:56] Speaker 06:
Yes, Your Honor.

[00:03:57] Speaker 01:
And so what is at issue here in appeal?

[00:04:01] Speaker 01:
appealing both determinations?

[00:04:03] Speaker 06:
So yes, Your Honor.

[00:04:04] Speaker 06:
Let's start with the registered mark.

[00:04:06] Speaker 06:
We believe that because of the registration, the registration provided... Well, we don't have to go through the registered mark yet.

[00:04:12] Speaker 01:
I want to know, do you have to prevail on both for an injunction to be permissible?

[00:04:19] Speaker 06:
So, no.

[00:04:20] Speaker 06:
I believe that to the extent we prevail on the registered mark,

[00:04:24] Speaker 06:
That's an issue of validity, but we need to establish secondary meaning as of the date of first infringement, which was fixed by the ID and confirmed in the Commission's decision as 2003.

[00:04:36] Speaker 06:
So to the extent, for purposes of infringement, I believe we have to establish secondary meaning as of 2003, but the validity of the registration is a separate issue as well.

[00:04:45] Speaker 03:
There's this complexity about whether we should

[00:04:50] Speaker 03:
be determining secondary meaning at the time of the infringement or the time of the registration?

[00:04:56] Speaker 03:
And in Chippendales, I assume you're familiar with that, you talked about inherent distinctiveness being determined as of the date of the registration.

[00:05:07] Speaker 03:
Is it possible that the test should be that you have to find secondary meaning at the time of the infringement and that if you want to have the presumption of validity,

[00:05:21] Speaker 03:
There has to be secondary meaning at the time of the registration.

[00:05:24] Speaker 03:
Does that make sense?

[00:05:26] Speaker 06:
Well, I think to the extent this registration is for product configuration, so it can't be inherently distinctive under the... No, no, I understand that.

[00:05:34] Speaker 03:
But I'm talking about in terms of secondary meaning.

[00:05:36] Speaker 03:
In order to get the presumption that would flow from the registration, there would have to be a finding that there was secondary meaning at the time of the registration, right?

[00:05:48] Speaker 06:
So if I may, there has to be a finding that there

[00:05:51] Speaker 06:
There is presumed to be secondary meaning at the time of the registration based on the certificate of registration itself.

[00:05:57] Speaker 06:
So there is, as a matter of law, secondary meaning in this case because of the Cold War decision.

[00:06:03] Speaker 03:
That would be refuted by showing that there wasn't secondary meaning at the time of the registration, right?

[00:06:08] Speaker 03:
Yes.

[00:06:09] Speaker 03:
Yes, Your Honor.

[00:06:10] Speaker 03:
I mean, this is a very spongy concept, unlike patent law, which

[00:06:15] Speaker 03:
sometimes seems confusing, but in contrast to trademark law here, it seems pretty clear.

[00:06:23] Speaker 02:
The scary thought.

[00:06:27] Speaker 06:
Okay, go ahead.

[00:06:29] Speaker 06:
So, if I may focus on the first legal error.

[00:06:32] Speaker 06:
The Commission committed legal error when it relied on a survey that asked the wrong question.

[00:06:38] Speaker 06:
The survey expert in this case that the Commission relied on

[00:06:41] Speaker 06:
with Sarah Butler and Ms.

[00:06:42] Speaker 06:
Butler asked a recognized question when she should have asked an associate question.

[00:06:47] Speaker 06:
Now, why does that matter?

[00:06:49] Speaker 06:
It's significant because a recognized question is directed to a fame issue, whether a mark is famous.

[00:06:56] Speaker 06:
Under 15 USC 1125, a mark is famous if it is widely recognized by the general consuming public.

[00:07:04] Speaker 06:
But this court has said in Tone Brothers, quote, all that is necessary to establish secondary meaning

[00:07:11] Speaker 06:
is that the consumer associate the trade dress with a single, albeit anonymous source.

[00:07:17] Speaker 06:
It's a lower threshold.

[00:07:19] Speaker 06:
And I'll get into an example of why it matters.

[00:07:22] Speaker 06:
But what did Miss Butler say at trial about the use of the recognized term?

[00:07:28] Speaker 06:
Well, first of all, she admitted that recognize is a question that's directed to testing whether a mark is famous.

[00:07:35] Speaker 06:
And that's at appendix 009876.

[00:07:38] Speaker 06:
She also admitted that fame

[00:07:41] Speaker 06:
is a much higher standard.

[00:07:43] Speaker 06:
And that's the same citation.

[00:07:46] Speaker 06:
When she asked whether she'd ever used the term recognize in a secondary meaning survey before, she said, no.

[00:07:54] Speaker 06:
I've never used it before, notwithstanding the fact that I have conducted 25 to 30 secondary meaning surveys in the past.

[00:08:04] Speaker 06:
When she was asked to explain why she used the term and she was pressed on this issue, she had no answer.

[00:08:11] Speaker 06:
And her writings confirm that associate is, in fact, the right question to ask for purposes of secondary meaning.

[00:08:17] Speaker 01:
So if we throw out her survey evidence, given what the ALJ did with respect to the other survey evidence, are we just saying there's no survey evidence?

[00:08:28] Speaker 06:
Yes, Your Honor.

[00:08:29] Speaker 06:
That's exactly right.

[00:08:30] Speaker 06:
And it's important to note that another survey that she conducted using the same recognized question was thrown out.

[00:08:38] Speaker 06:
Now, what did the other in this case?

[00:08:41] Speaker 06:
In this case, I can get you... On that ground?

[00:08:45] Speaker 06:
Yeah, the use of recognize was improper in connection with the use of the stimuli.

[00:08:49] Speaker 06:
Yeah, that's exactly right.

[00:08:51] Speaker 03:
He didn't think... This is in the AJ's decision?

[00:08:54] Speaker 06:
Yes.

[00:08:55] Speaker 06:
Where?

[00:08:56] Speaker 06:
If I may have a moment.

[00:09:06] Speaker 06:
If I may, Your Honor, may I get that side to you in a moment?

[00:09:09] Speaker 03:
Yeah, let me bring you to the prior use, the exclusive use issue.

[00:09:19] Speaker 03:
Yes.

[00:09:20] Speaker 03:
And if I understand one of the contentions that you're making is that some of these prior uses on which the Commission relied were not in fact prior uses of the entire mark that

[00:09:38] Speaker 03:
Some of them, for example, on the bumpers didn't have the diamond.

[00:09:44] Speaker 03:
And yet, at the same time, I see that in connection with infringement, you argued that shoes that don't have the complete mark infringe.

[00:09:54] Speaker 03:
How are we to reconcile those two arguments?

[00:09:57] Speaker 06:
Yes, Your Honor.

[00:09:57] Speaker 06:
There may be circumstances where shoes that don't have the identical combination of elements

[00:10:04] Speaker 06:
can be considered for purposes of testing secondary meaning.

[00:10:07] Speaker 06:
So the test seems to be substantially similar, right?

[00:10:10] Speaker 06:
Yes, Your Honor.

[00:10:11] Speaker 06:
And when you get to the infringement issue, the issue of identity of the marks is but one factor.

[00:10:18] Speaker 06:
So they don't have to be identical if other factors tip in favor of a finding of likelihood of confusion.

[00:10:23] Speaker 06:
The citation to the ALJ's decision where he rejected half of Ms.

[00:10:29] Speaker 06:
Butler's survey is Appendix 79.

[00:10:33] Speaker 06:
And it goes through 80 as well.

[00:10:36] Speaker 01:
And what was his explanation for why it was OK in one survey and not OK in the other to use the same improper language?

[00:10:43] Speaker 06:
So if my recollection serves me, he determined that... Where do we find his determination on this page?

[00:10:51] Speaker 06:
It starts on the second paragraph

[00:11:03] Speaker 03:
I don't see where he says that the use of the word recognized is improper.

[00:11:20] Speaker 01:
I thought he just had a problem with her choice of control.

[00:11:25] Speaker 06:
So I believe that he actually...

[00:11:34] Speaker 06:
So yeah, at page 82, the ultimate conclusion I believe is, while only a small number of survey respondents articulated this problem, these comments provide support for the proposition that the use of the word recognized was problematic in this context.

[00:11:50] Speaker 01:
Right, but he says, I think his words are the use of the word recognized is not improper per se, but must be evaluated in the context of the survey.

[00:12:00] Speaker 06:
Yes, and that's what I said earlier, which is

[00:12:02] Speaker 06:
he's recognized in connection with the survey stimulus in the other survey is what caused the judge to disregard the survey.

[00:12:10] Speaker 01:
All right.

[00:12:10] Speaker 01:
But then he, in the context of the other survey, decided that it wasn't improper.

[00:12:15] Speaker 06:
Right.

[00:12:15] Speaker 06:
And I believe the same problems are present.

[00:12:16] Speaker 06:
And if I may, I can explain why.

[00:12:19] Speaker 06:
So recognize is a question that is asking whether you have seen something before.

[00:12:25] Speaker 06:
And associates a question with

[00:12:29] Speaker 06:
that asks whether you associate something in your mind with something you've seen before.

[00:12:33] Speaker 06:
And here, the survey participants were shown basically a demonstrative exhibit that was in our complaint.

[00:12:42] Speaker 06:
It wasn't the mark.

[00:12:43] Speaker 06:
The mark is described in the registration.

[00:12:46] Speaker 06:
And I can cite the page for you at A015131.

[00:12:51] Speaker 06:
And the mark is used in connection with a shoe.

[00:12:55] Speaker 06:
And so if you look at the broken lines,

[00:12:58] Speaker 06:
in the registration, it shows where the mark is.

[00:13:01] Speaker 06:
Here, the survey expert asked, do you recognize a part of the mark taken out of context floating in space?

[00:13:10] Speaker 06:
And Converse has never shown that mark floating in space like the survey expert did.

[00:13:15] Speaker 06:
So when you ask the question, do you recognize this, of course consumers are going to say they haven't seen it.

[00:13:21] Speaker 06:
They don't recognize it.

[00:13:22] Speaker 05:
Now that if you ask the- Are you talking about the survey that he didn't let in?

[00:13:26] Speaker 06:
I'm talking about the survey that he did let in.

[00:13:28] Speaker 06:
Okay.

[00:13:28] Speaker 06:
Yeah.

[00:13:29] Speaker 06:
So the survey that he didn't let in asked the recognized question with a made-up shoe.

[00:13:35] Speaker 06:
The survey that he let in asked the recognized question with a part of the design, not the mark, because the mark's in connection with the midsole of a shoe.

[00:13:44] Speaker 06:
So there was no shoe.

[00:13:45] Speaker 06:
It's, do you recognize this design floating in space, or this image, as a brand or brands of sneakers?

[00:13:54] Speaker 06:
So the consumer, the participant in the survey who saw this, was never going to be able to say, yeah, I recognize this, because that specific stimulus had never been used before.

[00:14:02] Speaker 05:
Well, isn't your argument really a problem with that drawing, not the word recognize?

[00:14:09] Speaker 06:
I believe it's both, and here's why.

[00:14:12] Speaker 06:
If you ask the question of a consumer, do you associate this?

[00:14:17] Speaker 05:
Let me ask you, if hypothetically you had a drawing that you agreed with, what would be wrong with saying recognize?

[00:14:25] Speaker 06:
It asks the heightened standard.

[00:14:26] Speaker 06:
It asks whether you've seen it before.

[00:14:28] Speaker 06:
And that's not the test for secondary meaning, and that's not what this court has said in Tone Brothers.

[00:14:32] Speaker 06:
All you need is an association which is a lower standard.

[00:14:36] Speaker 03:
But apart from your argument about the use of the word recognized, which we've spent quite a bit of time on, is there any legal error in the board's decision?

[00:14:48] Speaker 03:
And if so, what is it?

[00:14:51] Speaker 06:
So apart from the survey, the legal error,

[00:14:54] Speaker 06:
What the board did is it said, I'm adopting what the commission said, what the ALJ said, insofar as four elements of secondary meaning are concerned.

[00:15:05] Speaker 06:
Massive amounts of sales, long-standing use, massive amounts of advertising, and massive amounts of unsolicited media given to the shoe, more so than probably any other product in American history.

[00:15:15] Speaker 06:
I'm going to accept that, OK?

[00:15:18] Speaker 06:
What's the legal error?

[00:15:20] Speaker 06:
So the legal error is if you

[00:15:22] Speaker 06:
If you actually reverse on either the survey, you throw the survey out, then you've got one factor, which I haven't addressed yet, but we believe was analyzed under the improper legal framework.

[00:15:35] Speaker 06:
Then you've got one factor that supports no secondary meaning.

[00:15:39] Speaker 03:
No, no, no.

[00:15:39] Speaker 03:
But just tell me what the legal errors are.

[00:15:41] Speaker 03:
Just briefly summarize.

[00:15:42] Speaker 06:
The legal errors under this court's in-ray steel building authority, no one secondary meaning

[00:15:48] Speaker 06:
factor can be determined.

[00:15:49] Speaker 03:
Too much weight to the survey.

[00:15:50] Speaker 06:
Correct.

[00:15:51] Speaker 06:
Well, too much weight to one factor.

[00:15:53] Speaker 06:
Okay.

[00:15:53] Speaker 06:
One factor can't be determined.

[00:15:55] Speaker 06:
Apart from that, what other legal errors?

[00:15:56] Speaker 06:
Legal error on the survey, which we've mentioned, and legal error in analyzing third-party use absent in divorce from consumer context.

[00:16:07] Speaker 01:
And does that mean is it just because they didn't look at the consumer context or is it because they didn't look at the consumer context as of 2003?

[00:16:18] Speaker 06:
So as of 2013 and as of 2003.

[00:16:21] Speaker 06:
So the proper legal analysis in short form is you've got to look at the relevant time.

[00:16:26] Speaker 05:
How do we figure out what's the relevant time?

[00:16:30] Speaker 05:
Let's go to the 2003 date.

[00:16:31] Speaker 05:
We don't take a snapshot, do we, on that day and say, this is the relevant time.

[00:16:36] Speaker 05:
We have to look at some period preceding that, don't we, for exclusivity of use.

[00:16:40] Speaker 06:
So under Braun, so for exclusivity of use,

[00:16:44] Speaker 06:
If you look at exclusivity of use, you can look at the five years preceding the application, because under 1052F... Wait, I think I'm asking you about the wrong... That's okay.

[00:16:53] Speaker 05:
No, go ahead.

[00:16:54] Speaker 06:
Okay, sure.

[00:16:58] Speaker 06:
To summarize the legal argument with respect to third-party use, you've got to look at the right time.

[00:17:06] Speaker 06:
So it's certainly 2013 because of the presumption of validity.

[00:17:09] Speaker 06:
And at that time, under... Braun says you look at it at the time of the infringement.

[00:17:14] Speaker 06:
So if I may, so you first look at it as of 2013, and as of 2013, the presumption of validity requires that the challenger carry both the burden of production and burden of persuasion.

[00:17:27] Speaker 06:
Braun says, OK, if you want to ensnare infringers, you have to show secondary meaning as of the date of first infringement.

[00:17:34] Speaker 06:
So that would be 2003.

[00:17:36] Speaker 06:
So converse bore the burden of proving secondary meaning as of 2003.

[00:17:40] Speaker 06:
and the challengers bore the burden of proving invalidity of the registration in 2013.

[00:17:47] Speaker 06:
Now, here's the legal error.

[00:17:49] Speaker 06:
You have to look at the right time, and you have to look at the relevant consumers.

[00:17:51] Speaker 06:
So it's 2013, certainly, and 2003 for purposes of infringement.

[00:17:56] Speaker 06:
Then you have to look at who's the average consumer.

[00:17:59] Speaker 05:
You keep saying just these dates, but what's the relevant period of time?

[00:18:05] Speaker 06:
Well, so the relevant period of time can be the period

[00:18:08] Speaker 06:
As I said, five years prior to the filing of the application.

[00:18:11] Speaker 06:
Where do we get five years from?

[00:18:13] Speaker 06:
So 1052F says that, and that's the basis of the application.

[00:18:17] Speaker 06:
In contestability?

[00:18:18] Speaker 06:
No, I do not.

[00:18:19] Speaker 01:
That has to do with the right to the registration, right, in the first instance?

[00:18:23] Speaker 01:
Yes.

[00:18:24] Speaker 01:
So if something didn't have secondary meaning, say in 1940, something can acquire secondary meaning for the relevant population of consumer, correct?

[00:18:34] Speaker 06:
Absolutely, because secondary meaning is a dynamic concept.

[00:18:36] Speaker 06:
Yes, absolutely.

[00:18:38] Speaker 06:
And that's why, if you look at third-party uses back in the 20s and the 30s and the 40s and the 50s, you can't say that they had an impact on somebody in 2013, particularly when you're talking about the average consumer of Converse, Chuck Taylors, was a 15 to 30-year-old.

[00:18:53] Speaker 06:
The chief marketing officer from Converse said, our sweet spot is the 16-year-old to 26-year-old and then a little bit older.

[00:19:00] Speaker 06:
Now, does Converse sell to a broader range of people?

[00:19:03] Speaker 06:
Yeah, absolutely.

[00:19:04] Speaker 06:
But if you look at the 15 to 30-year-olds,

[00:19:07] Speaker 06:
If I may finish the answer briefly, Your Honor, 15 to 30-year-olds, they're not going to know about 20s, 30s, 40s, 50s, 1970s, and 1980s catalogs because they just weren't exposed to them.

[00:19:19] Speaker 01:
Some of them don't know what happened yesterday, but that's a sad question.

[00:19:23] Speaker 03:
That's true.

[00:19:23] Speaker 03:
All right.

[00:19:24] Speaker 03:
I think we're out of time here.

[00:19:25] Speaker 03:
We'll give you two minutes or a ball.

[00:19:26] Speaker 03:
Thank you.

[00:19:30] Speaker 03:
Mr. Jardine?

[00:19:31] Speaker 03:
Thank you, Your Honor.

[00:19:35] Speaker 00:
Good morning.

[00:19:36] Speaker 00:
May it please the Court?

[00:19:38] Speaker 00:
Commission found no secondary meaning as to the CMT design supported by substantial evidence in accordance with the law.

[00:19:45] Speaker 00:
I think I'll just dive right into rebutting.

[00:19:47] Speaker 03:
There seems to me to be a problem in the sense that this prior use evidence that they relied on is missing some of the features of the mark and

[00:19:59] Speaker 03:
If I understand the cases, there has to be a finding of substantial similarity, and I don't see that in the Commission's decision.

[00:20:06] Speaker 03:
Am I missing something?

[00:20:08] Speaker 00:
I believe so, Your Honor.

[00:20:10] Speaker 00:
There's numerous examples throughout the tremendous record evidence, probably.

[00:20:14] Speaker 03:
There are quite a few examples where the mark is used, but the Commission also seems to be relying on examples where the complete mark is not used.

[00:20:24] Speaker 03:
For example, the diamond shape on the bumper.

[00:20:28] Speaker 00:
Right.

[00:20:30] Speaker 00:
In accordance with case law, as long as there's reasonable, substantial evidence to support the Commission's determination, even if some evidence may detract from it, it should be affirmed.

[00:20:39] Speaker 00:
I think that's what we have here.

[00:20:41] Speaker 00:
We have numerous significant examples.

[00:20:43] Speaker 00:
We have, again, going throughout the whole length of use that Converse asserted coming from 80 years ago in 1932 to the present.

[00:20:52] Speaker 01:
The Commission went through... That's part of the problem here is the mark is registered much later than that.

[00:20:58] Speaker 01:
And at the time of registration, of course, the trademark office determined that it had acquired secondary meaning, and it was entitled to a mark.

[00:21:08] Speaker 01:
Correct.

[00:21:08] Speaker 01:
And at that point, they were looking at a particular population of consumer.

[00:21:13] Speaker 01:
How are we supposed to say that what happened in 1920 is reflective of what someone who was a consumer at that point in time, at the point of registration, would understand?

[00:21:25] Speaker 00:
Right.

[00:21:25] Speaker 00:
I think it's reflected again by the record evidence.

[00:21:27] Speaker 00:
Again, there's a moving target that Congress has kind of moved throughout this whole litigation.

[00:21:33] Speaker 00:
I mean, at first they were in love with survey evidence.

[00:21:35] Speaker 00:
I mean, we can go to our brief on page 58.

[00:21:38] Speaker 05:
Well, put aside the survey.

[00:21:39] Speaker 05:
I'm still confused about what time period we're looking about for this historical evidence.

[00:21:45] Speaker 05:
I mean, I don't see how something from 1920 is relevant at all to a consumer in 2003.

[00:21:50] Speaker 05:
What time period from 2003 back are we looking at?

[00:21:55] Speaker 05:
Your friend suggested five years, although I don't think he got to the exact reasoning for that.

[00:22:01] Speaker 05:
But it can't be that a consumer in 2003, secondary meaning determination is based upon something that happened 100 years before he lived.

[00:22:15] Speaker 00:
Can it?

[00:22:16] Speaker 00:
If you go to the, again, the Record Evidence Commission opinion, it expressly states from the 1920s to the present, it says that

[00:22:23] Speaker 00:
multiple number of times.

[00:22:25] Speaker 01:
But that's the attack.

[00:22:26] Speaker 01:
That's one of the legal errors that is being asserted on appeal.

[00:22:30] Speaker 01:
So the fact that the Commission said that doesn't mean it's right necessarily, right?

[00:22:35] Speaker 00:
Well, they're asserting that we didn't consider all the evidence and we did consider all the evidence.

[00:22:40] Speaker 00:
We considered the seven facts.

[00:22:41] Speaker 01:
They're asserting that you considered improper evidence.

[00:22:44] Speaker 05:
Correct.

[00:22:45] Speaker 05:
Great.

[00:22:45] Speaker 05:
So if it's an improper time range, if they look back way too far, then how do we know

[00:22:52] Speaker 05:
that the evidence in the proper time frame would still support or they would still come to that conclusion.

[00:22:59] Speaker 00:
Again, you can look at this survey evidence that suddenly they don't like anymore.

[00:23:02] Speaker 05:
Don't talk about the survey evidence.

[00:23:03] Speaker 05:
I want to talk about the use.

[00:23:06] Speaker 05:
Is there use within a recent time frame that would support your argument?

[00:23:10] Speaker 00:
Yes.

[00:23:11] Speaker 00:
What?

[00:23:12] Speaker 00:
You can go to the 2011 Converse owner of KEDS agreement where they agreed and

[00:23:19] Speaker 00:
The owner of KEDS expressively warranted that they were the exclusive distributor, provider, marketer of shoes that embodied the CMT design.

[00:23:27] Speaker 00:
That was exactly the same design on the same shoe product marketed to the same consumer class.

[00:23:33] Speaker 00:
We have numerous examples of that throughout the record, from 1932 to the present.

[00:23:40] Speaker 01:
Putting aside KEDS and their separate arguments relating to KEDS, but the only other uses were actually infringing uses, right?

[00:23:48] Speaker 00:
Right, but if you go in and get the case law.

[00:23:49] Speaker 01:
But that's the whole point.

[00:23:50] Speaker 01:
If there are people copying, that sort of indicates that there's enough of a meaning to this design that people want to copy it.

[00:23:58] Speaker 00:
Again, I urge the court not to play their game.

[00:24:01] Speaker 00:
There's seven factors.

[00:24:03] Speaker 00:
There is separate factors for deliberate copying.

[00:24:05] Speaker 01:
Well, if we were to say every time someone copies a mark, that destroys secondary meaning, then there would never be the ability to have an infringement of a mark, right?

[00:24:15] Speaker 00:
We're not saying that.

[00:24:16] Speaker 00:
We're saying that's a separate factor.

[00:24:18] Speaker 00:
And if you go to Levi Strauss, it says specifically that you cannot say that, oh, these are infringers.

[00:24:23] Speaker 00:
These are irrelevant.

[00:24:24] Speaker 00:
The court said this is relevant because, again, it goes towards acquired distinctiveness, which was not found here.

[00:24:30] Speaker 00:
If you go to the record evidence.

[00:24:32] Speaker 01:
Well, we presume acquired distinctiveness.

[00:24:34] Speaker 01:
I mean, it's the commission's, it's the other side's burden to establish that it didn't exist.

[00:24:42] Speaker 01:
It's not Congress's burden to establish that it does.

[00:24:45] Speaker 00:
You hear the record evidence was abundant, that it overcame that presumption.

[00:24:50] Speaker 01:
So the record, the abundant record evidence is the KEDS agreement in 2011?

[00:24:55] Speaker 00:
Well, that's the prime example, but it's a multitude of examples here in the record.

[00:24:59] Speaker 01:
Anything during the relevant time, during the timeframe, assuming the timeframe is 2003 forward?

[00:25:07] Speaker 00:
Again, you have, well, you can connect the dots here.

[00:25:12] Speaker 00:
1988, you have Sears fall winter catalog at Appendix page.

[00:25:20] Speaker 01:
Okay, that's not my question.

[00:25:21] Speaker 01:
Is there anything in the 2003 forward timeframe?

[00:25:24] Speaker 01:
Assuming that's the timeframe we're looking about, this is a hypothetical.

[00:25:27] Speaker 00:
Again, I'm trying to connect the dots here.

[00:25:28] Speaker 00:
You have 1988 alongside advertising in JCPenney fall winter catalog.

[00:25:33] Speaker 00:
It was 38187, volume four of the Appendix.

[00:25:38] Speaker 03:
If we're saying that the focus should be on 2003 and 2013, how far in advance is prior use evidence relevant?

[00:25:50] Speaker 03:
Five years?

[00:25:51] Speaker 03:
That seems to be what converse is saying.

[00:25:55] Speaker 03:
Or is it more than that?

[00:25:59] Speaker 00:
It's the entire length of use that the

[00:26:03] Speaker 00:
a certain trademark owner is alleging.

[00:26:05] Speaker 00:
Here, they're alleging, again, throughout the record, 1932 to the present.

[00:26:08] Speaker 00:
That's what we looked at, 1932 to the present.

[00:26:09] Speaker 00:
We found numerous examples, again, more recently.

[00:26:12] Speaker 05:
Wait, so if, and this is a hypothetical, if all of the prior use had been from 1920 to 1940, and no customers, and let's accept these are younger customers, so even if

[00:26:28] Speaker 05:
some of those people are like, no customers ever would have been able to see that prior use.

[00:26:33] Speaker 05:
You still think that's relevant?

[00:26:36] Speaker 00:
Again, the commission opinion says 1920s to the present.

[00:26:40] Speaker 00:
Let me see if I can say this.

[00:26:42] Speaker 03:
If I understand what you're saying is that they're claiming a period of exclusive use going back to the 1920s and to defeat the exclusivity period that they claim,

[00:26:54] Speaker 03:
you're saying that it's relevant that other people were using it in that same period where they claim exclusive use, right?

[00:27:01] Speaker 00:
Right.

[00:27:02] Speaker 00:
I mean, again, that's the whole meaning of secondary meaning is that a consumer recognizes that as coming from one source.

[00:27:08] Speaker 03:
So if we were going to mark a time period for five years going before 2013, I guess we would have to say that the exclusive use

[00:27:22] Speaker 03:
factor that converse has favors it would have to be limited to the same time period.

[00:27:27] Speaker 03:
Am I understanding that correctly?

[00:27:30] Speaker 05:
I think the court should look at the entire... Well, you're telling us we should, but if we disagree with you, because I don't see how it makes any sense that we are looking at something from the 20s for secondary consideration in 2003.

[00:27:46] Speaker 05:
You can tell me there's record evidence, but we're not talking about the evidence.

[00:27:51] Speaker 05:
We're talking about the proper legal standard.

[00:27:54] Speaker 05:
I mean, these factors are a mess anyway.

[00:27:56] Speaker 05:
But if we're looking at historical usage on whether a current consumer would know that there's secondary meaning, it just can't be the case that something from 1920 is relevant to that determination as a matter of law.

[00:28:12] Speaker 00:
And all the case laws look at the entire length of use that's asserted.

[00:28:15] Speaker 01:
But exclusivity of use and acquired distinctiveness are two different things, right?

[00:28:21] Speaker 01:
To get a mark, you have to establish that you've had exclusive use for five years before the time of the application for the mark, right?

[00:28:29] Speaker 00:
We have to show that you possess secondary meaning.

[00:28:33] Speaker 03:
What you're saying is that to the extent they're claiming exclusivity of use going way back to the 20s, that can be defeated by

[00:28:40] Speaker 03:
used by other people going back to the twenties.

[00:28:43] Speaker 00:
Right?

[00:28:44] Speaker 00:
Right.

[00:28:45] Speaker 00:
But I'm saying basically that a combination of these two factors, Solidity of Use and the low consumer recognition rate here defeats their claim of secondary meaning.

[00:28:56] Speaker 00:
Again, we have recent use, again, from the 2011 Owner of Keds Commerce Agreement.

[00:29:01] Speaker 00:
We have their own internal memo in 2005, the appendix page 26.237.

[00:29:09] Speaker 00:
which is volume two, again, where they show their shoe surrounded by competitive shoes, the majority of which have the same exact, again, CMT design.

[00:29:18] Speaker 01:
That might go to whether or not they carefully policed their mark, but at the point in time that they have a mark and the point of that picture was to say, everybody's trying to copy us.

[00:29:30] Speaker 00:
Right, but they say they wish they had a design patent.

[00:29:31] Speaker 00:
They say they wish they had a trademark because they realized they couldn't get a trademark because they don't possess secondary meaning.

[00:29:36] Speaker 00:
Again, there's other numerous recent use.

[00:29:38] Speaker 00:
You have 2001, the Testimony of Kartalis, an appendix, pages 407, 68 to 70, where she talked about the introduction of Skechers slip-on shoe, which again, was the same CMT design on the same shoe product marketed to the same consumer class.

[00:29:51] Speaker 01:
Again, these are the alleged infringers' respondents, right?

[00:29:55] Speaker 01:
And so you want us to assume that every time someone infringes, that it destroys secondary meaning.

[00:30:03] Speaker 00:
All right, but again, I encourage the court to go to the case law, which says typically, again, if you go to Levi Strauss, yeah, it typically says, the court rejected the trademark owner's attempts to dismiss his evidence because any such uses were infringes, knowing that such arguments are irrelevant.

[00:30:29] Speaker 00:
where there was a question as to whether a ledge mark required distinctiveness during an extended period of substantially exclusive and continuous use by the trademark owner.

[00:30:36] Speaker 00:
This is exactly, again, the facts here are very similar to Levi Strauss, very similar to Echo Travel.

[00:30:42] Speaker 00:
We had distribution of advertisements here.

[00:30:45] Speaker 00:
They were just in the thousands and hundreds.

[00:30:46] Speaker 00:
Here we have, again, 80 years of advertisements by three major retailers.

[00:30:51] Speaker 00:
Again, combined with this low consumer survey evidence, which again, was a moving target for them, when they lost on that, they said, oh, recognition.

[00:30:58] Speaker 00:
Again, if you go to appendix pages of the Butler witness statement, particular Butler witness statement, appendix pages 40319, well, they asked about the recognition issue, and it was just about

[00:31:19] Speaker 00:
recognition of design as the design of a brand or company.

[00:31:21] Speaker 00:
Again, this is the same elements they had in their complaint where they asserted that it's probably the most widely recognized design in the history of footwear in this iconic symbol of Converse brand in the appendix page 385 in volume 1.

[00:31:35] Speaker 03:
So they took their exact decision.

[00:31:37] Speaker 03:
Thank you, Your Honor.

[00:31:41] Speaker 03:
Let's see, Mr. Fisella?

[00:31:43] Speaker ?:
Yes, sir.

[00:32:00] Speaker 04:
Good morning.

[00:32:02] Speaker 04:
Mark Pazella from Fish and Richardson on behalf of New Balance, Walmart, and Hue Liquidation, the intervener respondents.

[00:32:11] Speaker 04:
I'd like to address, Judge Amali, your question about the effect of the respondents alleged infringing sales and whether that can affect a finding of secondary meaning.

[00:32:24] Speaker 04:
That presumes the outcome of the case.

[00:32:27] Speaker 04:
What we have here is only a presumption of secondary meaning as of the date of the federal registration, 2013.

[00:32:35] Speaker 04:
Okay?

[00:32:37] Speaker 04:
So only as of that date is converse presumed, that's a rebuttable presumption, presumed to have secondary meaning.

[00:32:44] Speaker 04:
That means that the respondent's sales prior to that date, even if the mark's identical, cannot be infringing because the mark that is used is not a mark.

[00:32:54] Speaker 04:
There's no secondary meaning.

[00:32:56] Speaker 01:
So the response... That's why we deal with the common law mark.

[00:33:00] Speaker 01:
Correct.

[00:33:02] Speaker 01:
But again, this is where I have a problem with the confusion.

[00:33:05] Speaker 01:
It's like you want to use the evidence that relates to the common law mark to wipe out the registered trademark.

[00:33:11] Speaker 01:
They want to use the evidence that relates to the registered trademark to protect their common law mark.

[00:33:16] Speaker 01:
And I think you're both confusing the questions.

[00:33:20] Speaker 04:
Let me see if I can clarify.

[00:33:22] Speaker 04:
It's a continuum.

[00:33:24] Speaker 04:
Judge Hughes, you ask, what's the relevance of a shoe made in 1920?

[00:33:27] Speaker 04:
The relevance of the shoe made in the 1920 to a case in 2015 is that its use didn't begin and end in 1920.

[00:33:37] Speaker 04:
It continued for the intervening 80 years.

[00:33:41] Speaker 04:
There were experts in footwear history, fashion, and marketing, all of whom did volumes of research looking at the marketplace, looking at the industry, looking at sales, all of whom testified

[00:33:54] Speaker 04:
that there wasn't a period during which, that 80 year period, that Converse was the exclusive user.

[00:34:01] Speaker 04:
So why does the continuous use during that period matter?

[00:34:04] Speaker 04:
It matters because this particular design combination constitutes a style of footwear.

[00:34:12] Speaker 04:
It's a type of shoe.

[00:34:15] Speaker 05:
Go ahead.

[00:34:16] Speaker 05:
I'll be quick.

[00:34:17] Speaker 05:
I get that, but the problem is that

[00:34:21] Speaker 05:
I'm not so sure that the evidence you have supports.

[00:34:24] Speaker 05:
I mean, if it were true that it was consistent use by multiple parties throughout the period, that would be fine.

[00:34:31] Speaker 05:
Let me ask you a hypothetical.

[00:34:33] Speaker 05:
If the only use by other people was from 1920 to 1940, and in 1940, all the other people using this dropped out, and for the next 70 years, Converse was the only company using this mark.

[00:34:48] Speaker 05:
And therefore everybody associated with that mark only with Converse and therefore would have acquired secondary considerations.

[00:34:57] Speaker 05:
Could you use that 1920 to 1940 evidence to rebut secondary considerations?

[00:35:04] Speaker 04:
In that narrow hypothetical, no.

[00:35:07] Speaker 03:
But that's not our fact.

[00:35:08] Speaker 03:
Isn't the answer that to the extent that Converse was claiming that it had exclusive use from 1920 to 1940,

[00:35:16] Speaker 03:
that would be relevant, right?

[00:35:17] Speaker 04:
For that very narrow period, but I understood the hypothetical to be a question about protectability in more current period.

[00:35:24] Speaker 03:
I think the problem is, at least as I see it, is that the earlier evidence certainly is relevant to defeat the contention of exclusive use for a long, long period.

[00:35:35] Speaker 03:
Correct.

[00:35:35] Speaker 03:
You have to be able to refute that evidence by evidence of use by others in the earlier period.

[00:35:42] Speaker 03:
But once you get outside of that factor,

[00:35:45] Speaker 03:
then it seems to me the earlier use becomes more problematic.

[00:35:51] Speaker 04:
It's all relative, right?

[00:35:53] Speaker 04:
The earlier use is useful to rebut the notion that there's been exclusive use for a substantial period of time.

[00:35:59] Speaker 04:
That's not true, factually.

[00:36:01] Speaker 01:
Right, but to get the registration, they didn't have to establish exclusive use for a long period of time.

[00:36:06] Speaker 01:
They might have said it,

[00:36:07] Speaker 01:
Correct.

[00:36:08] Speaker 01:
There was a five-year window prior.

[00:36:09] Speaker 01:
Just a five-year period of time.

[00:36:11] Speaker 01:
And something that was not necessarily used exclusively over historically can become an exclusive use and have acquired secondary meaning.

[00:36:23] Speaker 01:
And that's the whole point, is that you look going forward, you look at the relevant point in time.

[00:36:29] Speaker 04:
And let's look at that relevant point in time.

[00:36:31] Speaker 04:
You asked my colleague from the ITC what's the more current evidence.

[00:36:35] Speaker 04:
The more current evidence, let's go

[00:36:37] Speaker 04:
five years back from the application, which is the mid-2000s.

[00:36:43] Speaker 04:
In 2000, we have the footwear dictionary identifying a sneaker as a Keds that has the identical designation as claimed as a copyright here, or trademark here.

[00:36:56] Speaker 04:
Identical.

[00:36:57] Speaker 04:
So this isn't a patent case where the fact that it's in a dictionary is dispositive.

[00:37:03] Speaker 04:
What that means, though, is that when

[00:37:06] Speaker 04:
The folks putting out that dictionary said, what does a sneaker looks like?

[00:37:10] Speaker 04:
They picked Keds.

[00:37:12] Speaker 04:
And they picked Keds.

[00:37:13] Speaker 04:
But does a license use?

[00:37:15] Speaker 01:
That wasn't a license use.

[00:37:17] Speaker 01:
Well, the dictionary wasn't a license use.

[00:37:21] Speaker 04:
Keds did not license its use from Converse.

[00:37:23] Speaker 04:
They ran in parallel, much like PF Flyers, my client, which is owned by New Balance, sold shoes beginning in the 1940s with a small gap during the 1950s.

[00:37:33] Speaker 04:
80s to the late 1990s continuously.

[00:37:39] Speaker 04:
They sold those shoes continuously during the period prior to the acquisition of the registration.

[00:37:46] Speaker 04:
So PF Flyers sales are not infringing sales.

[00:37:51] Speaker 04:
PF Flyers shoes look like PF Flyers, they don't look like Converse because they're the very same shoes that they've been selling since the 1940s.

[00:37:58] Speaker 04:
So there are PF Flyers sales that predate

[00:38:01] Speaker 04:
this small window that precedes the application.

[00:38:04] Speaker 04:
There are sketcher's sales that predate the small window prior to the application.

[00:38:09] Speaker 04:
And those sales are in the millions.

[00:38:12] Speaker 04:
And we know KEDS also sold.

[00:38:14] Speaker 04:
We know that the footwear dictionary included KEDS as the definitive example of what a sneaker is.

[00:38:20] Speaker 04:
And it has the same combination.

[00:38:22] Speaker 01:
It didn't specifically find that that did not necessarily

[00:38:30] Speaker 01:
affect the determination of whether the primary association was with Congress?

[00:38:36] Speaker 04:
Could you say that another way?

[00:38:37] Speaker 01:
Didn't the ALJ specifically find that despite that, that would not alter the question of whether the primary association, which is what we're supposed to be looking at, be associated with a singular source, was still with Congress?

[00:38:54] Speaker 04:
Standing alone, it is not enough.

[00:38:56] Speaker 04:
But put in this

[00:38:58] Speaker 04:
volume of material evidencing substantial third-party use during the period at which Converse claims substantially exclusive use, it's another piece of evidence.

[00:39:10] Speaker 04:
Standing alone, it's not enough.

[00:39:12] Speaker 04:
But there's substantial evidence at this point.

[00:39:16] Speaker 04:
I could address some of the Court's questions on surveys, if you have any interest.

[00:39:23] Speaker 04:
Thank you.

[00:39:27] Speaker 07:
Good morning.

[00:39:28] Speaker 07:
Morgan Chu on behalf of Skechers.

[00:39:31] Speaker 07:
I was going to address the APA and the Dr. Fam arguments, but instead I'm going to try and address the questions that the panel has been asking.

[00:39:40] Speaker 07:
Here's the evidence of a recent time.

[00:39:42] Speaker 07:
And I'll start at 2003 and I'll bring it forward.

[00:39:47] Speaker 07:
2003, Skechers introduces Twinkle Toes.

[00:39:51] Speaker 07:
It has continuously sold Twinkle Toes.

[00:39:56] Speaker 07:
What's some of the evidence?

[00:39:58] Speaker 07:
In 2010, within that five-year period, an executive at Converse, a Mr. C. Hafer, was told that Sketchers was outselling Converse four to one.

[00:40:11] Speaker 07:
This is in that five-year period.

[00:40:13] Speaker 07:
2012, Converse internal presentation calls Chuck Taylor's a generic shoe and identifies the fact that there's an oversaturation of the market.

[00:40:26] Speaker 07:
That first document, the outselling 4 to 1, it's in the appendix that 47.

[00:40:32] Speaker 01:
Genericness has never been an issue in this case.

[00:40:35] Speaker 07:
Excuse me?

[00:40:36] Speaker 01:
Genericness has not been an issue in this case.

[00:40:39] Speaker 07:
Correct.

[00:40:40] Speaker 07:
It's not an issue now before the court.

[00:40:43] Speaker 07:
But it's not meant to be a legal word.

[00:40:49] Speaker 07:
It's in this particular document where they're saying there's a saturation of the market.

[00:40:55] Speaker 07:
That means it's not just a few uses.

[00:40:59] Speaker 07:
And this is against the background where... Let me make sure I get the sites out.

[00:41:05] Speaker 07:
The first one was 47668.

[00:41:06] Speaker 07:
The next one was 47554.

[00:41:09] Speaker 07:
In 2013, Mr. Seehafer, the Congress executive, wrote, two years ago, we recognized the gains by Sketchers, 47669, in another document.

[00:41:25] Speaker 07:
internal to Converse.

[00:41:26] Speaker 07:
Sketchers have taken a piece out of us, 47667, and that Sketchers was cranking out big numbers for Twinkle Toes.

[00:41:38] Speaker 07:
Same document.

[00:41:39] Speaker 07:
Another document.

[00:41:40] Speaker 07:
Mr. C. Heffer had a long conversation with Ken Moody regarding the big hits that Converse was taking from Sketchers.

[00:41:50] Speaker 07:
So I'm only looking at the recent period, 2003, everyone agrees it's relevant.

[00:41:54] Speaker 07:
all the way to the present.

[00:41:56] Speaker 07:
And the last point is this.

[00:41:58] Speaker 07:
Did the board, I mean, did the ITC cite to any of this?

[00:42:03] Speaker 07:
The answer is yes, and witness statements discussing this as well.

[00:42:08] Speaker 07:
Where?

[00:42:10] Speaker 07:
It's in Appendix 26 through about 35, where they're discussing exclusivity of use.

[00:42:21] Speaker 07:
There is a discussion of older uses then,

[00:42:23] Speaker 07:
But at the top of Appendix 28, the commission decision talks about uses from the 1930s to the present.

[00:42:34] Speaker 07:
And then there's a long string site of very substantial evidence, which includes that broad period of time.

[00:42:45] Speaker 07:
Now, the courts recognize that out of the seven factors, only one is direct evidence.

[00:42:51] Speaker 07:
The other six factors are circumstantial evidence.

[00:42:54] Speaker 07:
The one factor that is direct evidence from decisions of various courts is survey evidence, because that's the evidence where you're asking actual consumers.

[00:43:06] Speaker 07:
You're asking actual consumers whether you associate or recognize or however the questions are being worded.

[00:43:14] Speaker 03:
OK, I think, Mr. Shue, we're out of time.

[00:43:16] Speaker 03:
Thank you.

[00:43:17] Speaker 03:
Thank you.

[00:43:20] Speaker 06:
Yes, thank you, your honor.

[00:43:23] Speaker 06:
We're talking about the Chuck Taylor here, and I want to start with Skechers because Skechers is one of the primary reasons we are here.

[00:43:29] Speaker 06:
The question isn't whether the use is exclusive, it's whether the use is substantially exclusive.

[00:43:35] Speaker 06:
And under this court's Kichler authority, you don't consider inconsequential uses and you don't consider infringing uses, particularly if they're derived from the trademark owner's rights.

[00:43:45] Speaker 06:
What happened in 2003?

[00:43:46] Speaker 06:
Okay, Skechers introduced the Twinkle Toe Shoe.

[00:43:50] Speaker 06:
they sold 27,000 units of Quinkletoe shoes.

[00:43:54] Speaker 06:
Converse in that year sold 7.7 million pair of shoes.

[00:43:59] Speaker 06:
So that's 0.3% of the shoes.

[00:44:02] Speaker 06:
For every thousand pair of Converse shoes on the street, you saw three pair of Skechers shoes.

[00:44:07] Speaker 06:
Is that going to impact the Mark's ability to serve as a source identifier?

[00:44:11] Speaker 06:
No, it's inconsequential.

[00:44:13] Speaker 06:
What's the real issue here though?

[00:44:15] Speaker 06:
The real issue is

[00:44:17] Speaker 06:
From 2008 to 2010, while Converse was enforcing its rights, sending out 120 cease and desist letters, engaged in a massive, massive anti-counterfeiting campaign, which is the most egregious form of trademark infringement, we have Skechers documents at appendix 017470.

[00:44:35] Speaker 06:
Skechers designed documents that refer to the Twinkle Toes as the Twinkle Toes Slim Converse copy.

[00:44:43] Speaker 06:
They're a copy.

[00:44:46] Speaker 06:
What do they do in their emails?

[00:44:48] Speaker 06:
They use the word converse with an asterisk so that in lawsuits like this, it's going to be hard to find out who they were trying to copy.

[00:44:55] Speaker 06:
How do we know that they were trying to trade off the substantial goodwill in the Chuck Taylor?

[00:45:00] Speaker 06:
Because they copied to the millimeter.

[00:45:03] Speaker 06:
They copied the bumper to the millimeter.

[00:45:05] Speaker 06:
They copied the line stripes to the millimeter.

[00:45:07] Speaker 06:
They were trying to trade off of Converse's goodwill.

[00:45:10] Speaker 06:
They were infringers, and that's the reason in part why we're here.

[00:45:14] Speaker 06:
So they don't count in the calculus of whether converse was substantially exclusive.

[00:45:20] Speaker 06:
If I may address the KEDS issue.

[00:45:22] Speaker 06:
I think we're out of time.

[00:45:23] Speaker 06:
Thank you, Mr. Ring.

[00:45:24] Speaker 06:
Thank you.

[00:45:25] Speaker 06:
Thank you, all counsel.

[00:45:25] Speaker 03:
The case is submitted.