[00:00:00] Speaker 00: One, zero, one, three, H-A-H-C-S, Incorporated. [00:00:07] Speaker 00: Okay, we're all looking forward to doing better on this one, so Mr. Knowlton, whenever you're ready. [00:00:36] Speaker 03: I'm ready. [00:00:43] Speaker 03: Good morning, your honors. [00:00:45] Speaker 03: My name is James Nolten. [00:00:46] Speaker 03: I represent AACS Inc. [00:00:49] Speaker 03: in their application for a trademark for Gwen's. [00:00:54] Speaker 02: You could have given us some menus as a foodie. [00:00:56] Speaker 02: I was curious. [00:01:00] Speaker 01: Well, I've been to Snowmass every year, so I confess that I actually know the restaurant [00:01:05] Speaker 01: That being said, what's wrong with what the TTAB did here? [00:01:10] Speaker 01: For example, I mean, almost all of these underlying issues that you're raising are substantial evidence review issues for us. [00:01:21] Speaker 01: So while maybe I would think Gwinn's and Gwinn's Lodge would potentially have a different appearance or a different sound, I don't get to make that decision in the first instance. [00:01:32] Speaker 01: That's a substantial evidence [00:01:34] Speaker 01: review question. [00:01:36] Speaker 01: And the PTO said Lodge is generic, basically. [00:01:40] Speaker 01: It's just descriptive. [00:01:41] Speaker 01: And so it basically comes down to wins and wins. [00:01:44] Speaker 01: Well, that's kind of hard to get around at that point. [00:01:46] Speaker 01: So I guess my problem is you've made a lot of points, but so many of them, like similarity of the marks, all devolve into something that we review for substantial evidence and whether I would have decided that issue the same way in the first instance isn't [00:02:01] Speaker 01: the issue I get to decide. [00:02:03] Speaker 01: Is there evidence that supports how the PTO decided it? [00:02:06] Speaker 01: So, you know, what would you like to tell me in response to that? [00:02:09] Speaker 01: Are there particular ones you really think there's no substantial evidence for? [00:02:13] Speaker 01: Because you kind of walk through all of them and claim there was basically no substantial evidence for any of them, but that doesn't feel right to me. [00:02:21] Speaker 01: So why don't you direct me to the one you think is worst? [00:02:24] Speaker 01: I mean, the ultimate issue is one of law, but you didn't spend as much time on that as you did on each little individual thing. [00:02:30] Speaker 02: And let me just interject while you're talking about that. [00:02:32] Speaker 02: You did both sides agree that Wodge was generic, right? [00:02:37] Speaker 03: Yes. [00:02:38] Speaker 03: And it was disclaimed. [00:02:40] Speaker 03: Yes. [00:02:40] Speaker 03: I understand that the default here is that their argument is equal to our argument that the names are not similar or that the services are not the same and that we lose. [00:02:54] Speaker 03: I understand that. [00:02:56] Speaker 03: So my argument is, [00:02:58] Speaker 03: Their argument is not what a reasonable person would believe to constitute likelihood of confusion. [00:03:04] Speaker 03: And the reason I make that argument is I go back to DePont, Judge Markey. [00:03:11] Speaker 03: I mean, I love that case. [00:03:13] Speaker 03: And they give the courts and PTO [00:03:19] Speaker 03: way to review trademarks. [00:03:23] Speaker 01: Well, likelihood of confusion is the question of law. [00:03:25] Speaker 01: So, I mean, I'm not surprised you'd want to pull us in that direction, because that's a lot better for you than the substantial evidence wants. [00:03:31] Speaker 01: But there are a whole bunch of factors that have been articulated, the DuPont factors, that ought to be utilized in coming up with your likelihood of confusion determination. [00:03:44] Speaker 01: And the problem is that the PTO found that almost all of those factors went against you. [00:03:49] Speaker 01: So how do you take a big picture look and say, well, even though all the individual factors that you're supposed to look at weigh against you, nonetheless, there is no likelihood of confusion. [00:03:59] Speaker 01: How do we do that? [00:04:00] Speaker 03: So I don't agree that they weigh in my favor. [00:04:04] Speaker 03: I believe that the law is on the sequential evidence is that when you look at similarity of marks, you look at the [00:04:12] Speaker 03: you compare the marks based on their appearance, their sound, their connotation, and their commercial impression. [00:04:20] Speaker 03: I give it to the PATO that Gwens and Gwens sounds alike, but when you look at the entirety of Gwens Lodge, which is the language right out of DuPont, entirety, that it, and there are many cases in Rachel's [00:04:43] Speaker 03: that looked at the disclaimed word, large, because it is descriptive. [00:04:49] Speaker 03: It describes what the services is. [00:04:52] Speaker 03: And you go right back to the Lanham Act, and it says, so resembles a mark that in connection to the goods that it is related to is likely to cause confusion in connection with the goods. [00:05:07] Speaker 03: Gwen's Lodge says it's a Gwen's Lodge, looking at the similarity of services. [00:05:13] Speaker 03: The services, it says in DuPont, look at the registration and the application. [00:05:20] Speaker 03: It says in the registration, restaurant services, in the registration, it says resort large services. [00:05:28] Speaker 03: On the face, it is different, absolutely different. [00:05:32] Speaker 03: How can the PTO all of a sudden jump into third party registrations? [00:05:38] Speaker 03: There's 12 of them. [00:05:39] Speaker 03: How can they jump into eight webpages to show that they're somehow related? [00:05:46] Speaker 02: Hipso facto doesn't a resort lot serve food? [00:05:51] Speaker 02: Say what? [00:05:52] Speaker 02: Excuse me. [00:05:53] Speaker 02: Hipso facto doesn't a resort lot serve food? [00:06:03] Speaker 03: No, I don't believe that is true. [00:06:06] Speaker 03: There are lodges that have restaurants. [00:06:08] Speaker 03: There are lodges that don't have restaurants. [00:06:11] Speaker 03: Resort lodge. [00:06:12] Speaker 03: Resort lodge. [00:06:14] Speaker 03: There are resort lodges. [00:06:15] Speaker 03: A place to which persons resort. [00:06:20] Speaker 03: And there are a lot of types of resorts. [00:06:23] Speaker 03: They need to eat, do they not? [00:06:25] Speaker 03: That is correct. [00:06:26] Speaker 03: Resort lodges, that's correct. [00:06:28] Speaker 03: But there are a lot of restaurants that are not associated with lunches. [00:06:32] Speaker 02: I accept that, but now we're drawing Venn diagrams and there's an overlap. [00:06:42] Speaker 03: I understand that. [00:06:43] Speaker 03: And, you know, I appreciate this discourse, the opportunity to talk to you. [00:06:48] Speaker 03: It's a little more friendlier than I was expecting. [00:06:53] Speaker 03: Resort lodges, but then then we get back to trade channels because that People looking for resort lodges are not looking for restaurants and people looking for restaurants What what what basis do you have for saying that maybe people go there because they want to eat the food? [00:07:11] Speaker 01: Oh, come on, Evan. [00:07:12] Speaker 01: How many hotels? [00:07:13] Speaker 02: Well, then yeah once the ones where I go I [00:07:17] Speaker 03: So that brings up the point. [00:07:19] Speaker 03: It's purely conjectural. [00:07:21] Speaker 03: It's the same as the examining attorney. [00:07:24] Speaker 03: I understand they're doing their job. [00:07:26] Speaker 03: I understand they got a book that they read and they follow this. [00:07:31] Speaker 03: And I'm saying, looking at the law, coming from Colorado and having the opportunity to argue this, I read the law and I take it for face value. [00:07:41] Speaker 03: It's the plain language. [00:07:43] Speaker 03: And Judge Markey says, we don't want the discretion, the conjecture, whether it's this or that, to determine whether or not a trademark is given. [00:07:52] Speaker 03: I think that is wrong. [00:07:54] Speaker 03: And I think that's why we've fought so hard for this. [00:07:59] Speaker 03: Because Gwens is a genuine legitimate mark. [00:08:04] Speaker 03: It is entitled to trademark status. [00:08:08] Speaker 03: There is no confusion. [00:08:09] Speaker 03: If you look at the words, Gwens and Gwens Lodge, [00:08:12] Speaker 03: any person would confuse that with Gwen's Lodge, the services. [00:08:16] Speaker 03: Oh, I get, I get pillaged in the, in the, I'm probably as brave for not maybe being smart enough to understand these laws. [00:08:23] Speaker 03: But as I understand it, a reasonable person from which is how you judge likelihood of confusion is whether or not a person is going to believe that Gwen's restaurant is associated with Gwen's Lodge or that Gwen's Lodge is associated with Gwen's restaurant. [00:08:39] Speaker 03: I think a reasonable person would say, [00:08:42] Speaker 03: No. [00:08:43] Speaker 03: Confused. [00:08:44] Speaker 03: Confused. [00:08:46] Speaker 03: That is, yes, likelihood, likely to be confused. [00:08:51] Speaker 03: So that's, you know, to your question, I believe that we have a, you know, a strong case for a trademark approval. [00:09:02] Speaker 03: And I don't believe that the TAB and the PTO have an argument that is equal to or has the same [00:09:14] Speaker 03: parity as our argument based on the plain language of the law and actually comparing Gwen's with Gwen's Lodge. [00:09:25] Speaker 01: When I read this PTO decision, even if it needed to be affirmed, which I haven't made a decision yet, I'm waiting to hear all the arguments, but even if it did, [00:09:42] Speaker 01: Have you thought about advising your client that they could seek a narrower registration? [00:09:48] Speaker 01: Because your client has been operating a restaurant for 30 years on a ski mountain in Colorado. [00:09:55] Speaker 01: I don't see any evidence that they're looking to expand. [00:09:58] Speaker 01: They've done this for 30 years and they have one location. [00:10:00] Speaker 01: Am I right? [00:10:01] Speaker 01: Correct. [00:10:02] Speaker 01: Okay. [00:10:02] Speaker 01: And the other people have this Gwynns place in Alaska. [00:10:07] Speaker 01: And they've had one location and it's been there for 30 plus years as well. [00:10:11] Speaker 01: Like these, these two things have never crossed paths in any way, shape or form. [00:10:16] Speaker 01: One of the things the PTO has said is yeah, but they could. [00:10:20] Speaker 01: And it's true because when you seek a broad registration, not a narrow registration, it's possible that you might decide to now open up a Gwens in Alaska right next door, right? [00:10:32] Speaker 01: And that's the problem. [00:10:33] Speaker 01: The concern isn't what you're each doing in the respective markets you're in now and have been doing for the last 30 years. [00:10:39] Speaker 01: But if you ask for a broad registration, the concern is you could then literally open a restaurant next door to that other hotel, and boy, the facts would look really different, but you'd have the right to do it if they granted you registration. [00:10:51] Speaker 01: So has your client considered the possibility of a much narrower request in terms of categorizing the services, for example? [00:11:01] Speaker 03: Very good question. [00:11:02] Speaker 03: I asked her this morning in the cafeteria, Gwen, and I asked her that. [00:11:07] Speaker 03: And we decided, no, we want the general. [00:11:10] Speaker 03: The general protection is what Gwen's Lodge has. [00:11:15] Speaker 01: But even if you, okay, but they haven't sought to expand into your market so far, right? [00:11:20] Speaker 01: Yes. [00:11:20] Speaker 01: So even if you [00:11:23] Speaker 01: And I don't know if they could, because it would depend on who started first. [00:11:27] Speaker 01: You know that. [00:11:27] Speaker 01: There are common law trademark rights that they both possess. [00:11:30] Speaker 01: So it may well be that they can't, especially after this decision with likely confusion. [00:11:34] Speaker 01: If you all used it first, they might not actually be able to open an establishment near you, because you have a geographic monopoly on that space if you started using it first. [00:11:44] Speaker 01: But in any event, [00:11:45] Speaker 01: You know, no matter how this case turns out, that is something you could consider doing if it doesn't turn out in your favor, filing a new registration that is much narrower in scope and you'd have a whole nother bite at the apple. [00:11:55] Speaker 03: Yeah, very good. [00:11:56] Speaker 01: I'm just giving you completely unsolicited advice. [00:11:58] Speaker 03: Thank you. [00:11:59] Speaker 03: I am most appreciative and I will give up the slides too. [00:12:14] Speaker 04: Good morning, Your Honors. [00:12:15] Speaker 04: May it please the Court? [00:12:17] Speaker 04: I just wanted to address one thing that Council said in his presentation. [00:12:25] Speaker 04: He said that resort lodges don't serve food, and that's contrary to things that were said in the record by his client. [00:12:32] Speaker 04: I just wanted to point out where those were. [00:12:34] Speaker 04: First of all, on the relationship between the services, [00:12:38] Speaker 04: uh... they said that the peter according to the p p o is correct in stating that from its evidence resort lodging and restaurant services are of a kind that may emanate from a single source under a single mark that's an appendix one fifty two but we are we talking about [00:12:54] Speaker 00: Sure, there are resorts that have restaurants, but isn't it at least as likely, if not more likely, that the restaurants would have their own independent name and be operated by another entity other than the person who's got the lodge? [00:13:09] Speaker 00: There is evidence, of course, obviously. [00:13:11] Speaker 00: And if that's true, that wouldn't be the same coverage, right? [00:13:14] Speaker 00: You're only talking about instances where the lodge [00:13:16] Speaker 00: Gwen's Lodge operates the restaurant under the same name or not. [00:13:22] Speaker 04: That's not exactly what we're saying here. [00:13:24] Speaker 04: What we're saying is that Lodge Services and Restaurant Services are related in the sense [00:13:30] Speaker 04: that people are accustomed to seeing the two offered together under the same mark. [00:13:36] Speaker 04: And as a result, if they see the Gwen's restaurant, that will raise the question. [00:13:41] Speaker 04: You have to assume that they've seen Gwen's Lodge marked before that. [00:13:45] Speaker 04: That will raise the question in their mind whether there's a relationship between the two. [00:13:50] Speaker 04: So there's not really the question. [00:13:52] Speaker 01: I didn't see that the PTO found, unless I'm mistaken, that people are accustomed. [00:13:57] Speaker 01: I think they introduced a few examples [00:14:00] Speaker 01: of lodges with restaurants bearing similar names and therefore concluded they could be looked at as related services, but you just said something far stronger than that and remind me, did the PTO actually hold what you said, which is people are accustomed [00:14:18] Speaker 01: to seeing resorts with restaurants of the same name and that that's what this record is established. [00:14:24] Speaker 04: They didn't use the word custom. [00:14:25] Speaker 01: You know, that sounds like almost routine. [00:14:27] Speaker 01: Cause I tell you, I'm not accustomed to that. [00:14:28] Speaker 01: I'm pretty well traveled. [00:14:30] Speaker 01: I very seldom have come across a hotel where the restaurant bears the same Hilton restaurant. [00:14:36] Speaker 01: Doesn't sound that appealing to me. [00:14:38] Speaker 01: You know, I mean, very seldom do I come across a hotel where it doesn't have, as our chief judge pointed out its own brand name. [00:14:46] Speaker 01: even if it happens to be owned by the same source ultimately. [00:14:50] Speaker 04: On the record in this case, there are 11 third party registrations of entities that offer both resort lodging and restaurant services under the same mark. [00:14:59] Speaker 04: And there's also evidence that of third party websites, eight of them of companies that offer resort lodging and restaurant services under the same mark. [00:15:08] Speaker 04: That's what the record is in this case. [00:15:09] Speaker 04: And I think they may have put in four standalone restaurants, including their own. [00:15:14] Speaker 04: But what that shows is that substantial evidence shows or supports the notion that these goods and services are related. [00:15:22] Speaker 04: And the test is, in fact, very similar to what they admitted. [00:15:27] Speaker 00: Can I ask you something? [00:15:28] Speaker 00: This is just a really technical, basic question. [00:15:31] Speaker 00: When these searches are done, are you looking for both sides of this? [00:15:35] Speaker 00: I mean, does somebody go in and say, okay, we're looking for how many lodges and restaurants have the same name? [00:15:42] Speaker 00: Did somebody look for how many [00:15:43] Speaker 00: didn't? [00:15:44] Speaker 00: Is there any record evidence there by the examiner about how many? [00:15:48] Speaker 00: You gave us the number of how many did. [00:15:51] Speaker 00: What about how many didn't? [00:15:53] Speaker 04: Generally what the examining attorneys do, and I can't speak for all of them in every instance, but generally what they do is if they see that there might be a relationship, they then look to see whether or not the registrations that we have on file support that. [00:16:07] Speaker 00: Why is it meaningful, just hypothetically, why is it meaningful even if you found 300 [00:16:12] Speaker 00: that have the similarity, if on the other hand there are 400,000 that don't. [00:16:17] Speaker 00: Don't you need both numbers on that scale in order to assess it? [00:16:21] Speaker 04: Well, we do assess that. [00:16:22] Speaker 04: And under this court's Coors decision from 15 years ago, if there were evidence that showed that there was so much overwhelming evidence that people would not make that assumption, then we would certainly consider that. [00:16:35] Speaker 04: But that's not the record in this case. [00:16:38] Speaker 04: In this case, there are the 11 registrations and the eight websites. [00:16:43] Speaker 04: and just four, I think, stand-alone restaurants. [00:16:46] Speaker 04: And so under the substantial evidence review, that's enough to support what we're doing. [00:16:51] Speaker 04: It's really incumbent on the examiner attorney just to give them a factual predicate for what it is that they're thinking might be the objection and give them an opportunity to come back as the Coors people did and say, yes, you found a few things, but overwhelmingly, that's not the case in the market. [00:17:07] Speaker 04: And that's not what the record here shows. [00:17:10] Speaker 02: In the Red Brief at 23, [00:17:13] Speaker 02: You say, although HCS highlights that at present its restaurant is on a mountain in Colorado, and the restaurant lodged, and the registrant's lodged restaurant is in Alaska, presumably not on one of the state's many mountains. [00:17:30] Speaker 02: Did you look? [00:17:31] Speaker 02: Is that in the record? [00:17:32] Speaker 02: I mean, is it on a mountain or isn't it? [00:17:37] Speaker 02: From the website that was in the record, it didn't look like it was on a mountain. [00:17:40] Speaker 02: They were describing it. [00:17:42] Speaker 02: I don't know. [00:17:43] Speaker 02: I mean, that's not a place I've stomped around. [00:17:47] Speaker 02: But would it alter the analysis, since you assert that neither the application nor registration is restricted to any market area? [00:17:58] Speaker 04: With the overall legal question, no, it wouldn't alter the case at all. [00:18:08] Speaker 04: I just wanted to highlight that, as Judge Moore pointed out in the co-counsel's presentation, there are ways that this could be, they could get the registration, they could go to the people at Gwen's Lodge and seek a consent, you know, which would explain to us why they don't think, because they're familiar with their businesses, that they don't think there's going to be a likelihood of confusion. [00:18:29] Speaker 04: They may even want to, you know, seek an arrangement where Gwen's Lodge modifies their mark, perhaps, almost like an agreed concurrent use proceeding. [00:18:37] Speaker 04: to say, okay, we'll stay in the Pacific Northwest and you can have the Rockies. [00:18:42] Speaker 00: Okay, that all sounds nice, but that's all contingent upon the other side agreeing to something. [00:18:47] Speaker 04: Exactly, exactly. [00:18:48] Speaker 04: In other words, this is not necessarily the last step for them, but this is something that they could seek if they really wanted to get a federal registration. [00:18:56] Speaker 01: Well, just to be clear, they sought a federal registration, but you haven't asserted your trademark against them, correct? [00:19:04] Speaker 01: You haven't [00:19:05] Speaker 01: suggested that they should discontinue use of their trademark because of yours. [00:19:11] Speaker 04: Well, we're in PTO, so we're not, you know, we don't have any dog in this fight, really. [00:19:18] Speaker 04: We're just trying to enforce the statutes. [00:19:20] Speaker 01: For some reason, I had in my head that you were representing the Alaska Guents. [00:19:24] Speaker 04: Yes. [00:19:25] Speaker 04: But I just wanted to point out that, as you had said, there are ways for them, perhaps, if they can get the agreement of the other side, to get a registration that will suit their business needs. [00:19:35] Speaker 04: If there are no further questions, I'll do that. [00:19:37] Speaker 04: That was my time. [00:19:38] Speaker 04: Thank you. [00:19:46] Speaker 02: Do you know the answer to that? [00:19:48] Speaker 02: Is the one in Alaska on a mountain? [00:19:51] Speaker 02: It is not. [00:19:52] Speaker 03: It is basically a fishing resort. [00:19:56] Speaker 03: So it's on a lake or something? [00:19:56] Speaker 03: Yeah, it's on a highway, middle of nowhere, as far as I can tell, on the map. [00:20:02] Speaker 03: Yeah, I feel like sometimes too. [00:20:09] Speaker 03: Just to respond, number one, we really want the trademark. [00:20:14] Speaker 03: And we did, I did, call Gwen's Lodge and ask him. [00:20:19] Speaker 03: And I was talked to, Robert Keenum, I think is the owner, his wife is a patent attorney in Houston. [00:20:27] Speaker 03: A trademark attorney. [00:20:30] Speaker 00: Okay, so this is all outside of the record. [00:20:32] Speaker 03: It's off the record. [00:20:33] Speaker 03: I tried it, it didn't work. [00:20:36] Speaker 03: Next thing, it's the, as I understand, it is the PTO's trademark, patent and trademarks office's burden to prove that there's a likelihood of confusion. [00:20:47] Speaker 03: And I don't believe that they have. [00:20:48] Speaker 03: They have cited 12 [00:20:52] Speaker 03: third-party registrations and eight web pages to prove that... Well, how much is enough? [00:20:57] Speaker 00: I mean, their view of that is that you come up with four that don't. [00:21:01] Speaker 00: Maybe if you would come up with 14 that don't, that would have been a different story. [00:21:05] Speaker 03: Yes. [00:21:06] Speaker 03: And to that point, in recourse, I didn't articulate it as well as I could have. [00:21:13] Speaker 03: But the point is, is they denied trademark... No, they have granted trademark to Blue Moon [00:21:21] Speaker 03: beer because it didn't conflict with Blue Moon restaurants because there was over 815,000 restaurants versus 1,500 food pubs. [00:21:33] Speaker 03: Well, if I extrapolate that there are 815,000 restaurants out there, then 12 third-party registrations and eight web pages is [00:21:46] Speaker 03: not enough to go against the number of restaurants that are not affiliated. [00:21:54] Speaker 03: Where did you make that argument? [00:21:58] Speaker 03: I tried, I didn't, I made it in the, when we're talking about third party registrations not having enough [00:22:15] Speaker 03: They're not yours. [00:22:16] Speaker 03: Wait, but you didn't do that. [00:22:18] Speaker 03: No, I did not. [00:22:19] Speaker 03: That's what I said. [00:22:20] Speaker 03: But I put the words in 800 versus 1200. [00:22:24] Speaker 03: And that's why, because there's so many restaurants. [00:22:26] Speaker 01: I didn't make that question. [00:22:27] Speaker 01: I want to go through the evidence with you. [00:22:29] Speaker 01: The 12 third party registrations that the PTA cites for the relatedness of the services being sought for. [00:22:38] Speaker 01: What are those? [00:22:40] Speaker 01: Can you point them out to me in the record or can you at least tell me about them? [00:22:45] Speaker 01: What is it that the PTO is saying is the substantial evidence for the relatedness? [00:23:05] Speaker 01: I guess one of the things I'm wondering is were those registrations where the person sought the identical mark for both restaurant, lodge services and, restaurant services and lodge services. [00:23:19] Speaker 01: I'm trying to understand what those 12 third party registrations that supposedly show relatedness look like. [00:23:27] Speaker 03: Yes, and you know I don't, I have the, [00:23:33] Speaker 03: all that evidence on my computer because it was just easier to access it. [00:23:39] Speaker 03: But you're right. [00:23:41] Speaker 03: As I recall, the third-party registrations merely reflect that there are restaurants and lodges services combined for a trademark. [00:23:52] Speaker 01: Well, meaning, let me give you, for example, when somebody sells a trademark application, in your case, you sought it for just one type of goods. [00:23:59] Speaker 01: Correct. [00:23:59] Speaker 01: Restaurants or, yes, period. [00:24:01] Speaker 01: many McDonald's, you know, food services come, t-shirts come, whatever, you know what I mean? [00:24:07] Speaker 01: they seek a registration for lots of disparate categories of goods. [00:24:12] Speaker 01: Just because all those goods are listed with a bunch of commas next to them doesn't make them related goods. [00:24:17] Speaker 01: So what I'm trying to understand is exactly what these 12 things looked like that the PTO said demonstrated relatedness. [00:24:26] Speaker 01: Because you can seek a registration for lots of goods that are not related to each other at all. [00:24:31] Speaker 01: And just because one registration is sought for all of them doesn't mean they're related. [00:24:36] Speaker 01: In fact, the fact that they're separately listed might actually suggest even that they might not be. [00:24:41] Speaker 01: So I guess I'm going to, as a matter of law, whether that particular evidence can actually be utilized to prove the case in this. [00:24:50] Speaker 01: This is a very friendly question. [00:24:52] Speaker 03: Yeah, I understand that. [00:24:53] Speaker 03: And I totally agree. [00:24:54] Speaker 03: I don't even know why they even went there. [00:24:56] Speaker 03: If all you have to do is go to the application registration, that tells you what the services are. [00:25:01] Speaker 01: So can you show me where, what, what these 12 pieces of evidence look like, where, where they are in the record? [00:25:08] Speaker 01: PTO attorney, if you know where they are in the record. [00:25:12] Speaker 01: Yeah, I think that. [00:25:19] Speaker 03: I have my physical compilation and [00:25:28] Speaker 03: Do you have an appendix number? [00:25:34] Speaker 00: Okay. [00:25:35] Speaker 00: What's the appendix? [00:25:37] Speaker 00: Can we get the appendix site? [00:25:40] Speaker 00: Yeah. [00:25:44] Speaker 03: Three. [00:25:46] Speaker 03: Yeah. [00:25:47] Speaker 03: Pro council or council has helped me out on this on page three of their brief. [00:25:55] Speaker 03: Getting on page three. [00:26:04] Speaker 03: No, yeah. [00:26:14] Speaker 03: They say, there's an appendix page 83. [00:26:19] Speaker 03: You can actually see them on that. [00:26:21] Speaker 01: Appendix page 83? [00:26:23] Speaker 03: Yes. [00:26:23] Speaker 03: I think that's where we're going. [00:26:30] Speaker 01: Yeah, see these all say, page 83, appendix. [00:26:34] Speaker 01: resort lodge semicolon restaurant services, resort restaurant services, semicolon resort lodge. [00:26:42] Speaker 01: So these are, and I mean, actually some of them go a lot further, right? [00:26:46] Speaker 01: They then less conference and exhibition halls, banquet facilities and special occasions. [00:26:54] Speaker 03: Yeah, were they actually listed in their application, which I assume became registrations? [00:27:01] Speaker 01: Which Gwinn's Lodge didn't do that. [00:27:02] Speaker 01: Gwinn's Lodge didn't list it, did it? [00:27:04] Speaker 03: No. [00:27:04] Speaker 01: No? [00:27:05] Speaker 03: They did not list a restaurant. [00:27:07] Speaker 03: They just said resort lodge services. [00:27:09] Speaker 01: So does that mean if the PTO's logic were to hold that these 12 proved this, wouldn't it also mean if McDonald's, for its golden arches, said, you know, fast food services semicolon t-shirts? [00:27:22] Speaker 01: the PTO would be justified in saying t-shirts and fast food are related. [00:27:27] Speaker 01: Logically, would that be the extension of their argument today? [00:27:30] Speaker 03: No, I think it depends on, I guess, what they're comparing it to. [00:27:35] Speaker 03: And my argument is restaurant services is different than resort large services for the purposes of the confusion and like the hood of confusion, but going to your point as far as substantial evidence, [00:27:52] Speaker 03: 12 does not prove that consumers. [00:27:55] Speaker 01: What do the eight websites look like? [00:27:57] Speaker 01: Do you know where those are? [00:27:59] Speaker 03: Yes, they're the Trap Family Lodge. [00:28:03] Speaker 01: Yeah, I remember seeing that in the appendix, actually. [00:28:06] Speaker 01: That's a kind of picture. [00:28:07] Speaker 01: 48 is Cascade, Restaurant and Pub. [00:28:09] Speaker 01: So basically, they just looked for any website that listed a restaurant and a hotel [00:28:19] Speaker 01: Basically, page 47 is the Cascade Lodge and then 48 is a link on the Cascade Lodge page to the Cascade Restaurant Pub. [00:28:27] Speaker 01: So they pulled out eight web pages where it was hotels that also happened to have restaurants that bore similar names. [00:28:35] Speaker 01: Is that what those eight pieces of evidence look like? [00:28:39] Speaker 03: Yes, there are web pages that show that there is a lodge with a restaurant. [00:28:44] Speaker 01: Okay, but let me just stick with my example for a minute. [00:28:46] Speaker 01: Suppose on the McDonald's website there was a link that said, and you can buy other McDonald's paraphernalia, and you jumped on that link to a separate part of the McDonald's website where you could buy t-shirts or footballs with the golden arches on them or anything else. [00:29:00] Speaker 01: Would that prove that the goods are related just because they all happen to be sold together on a single website? [00:29:07] Speaker 03: No. [00:29:09] Speaker 01: I don't know. [00:29:12] Speaker 03: Yeah. [00:29:12] Speaker 03: Well, I mean, the cases that look at relatedness, it depends on whether or not the names are similar. [00:29:20] Speaker 03: I don't believe that. [00:29:21] Speaker 01: Okay. [00:29:22] Speaker 03: Okay. [00:29:24] Speaker 03: So I don't know if I've exceeded my time. [00:29:28] Speaker 00: Yeah.