[00:00:08] Speaker 00:
Good morning, ladies and gentlemen.

[00:00:11] Speaker 00:
We actually have six cases before the court this morning, two of which have been submitted on the briefs, and the other four are being argued today.

[00:00:21] Speaker 00:
The first case before the court is case number 172361, NRA, Detroit Athletic Company, which is an appeal from the trademark trial and appeal board, Ms.

[00:00:36] Speaker 00:
Spray.

[00:00:37] Speaker 00:
You want four minutes for rebuttal?

[00:00:39] Speaker 04:
Yes, please.

[00:00:40] Speaker 00:
All right, you may begin.

[00:00:46] Speaker 04:
Good morning.

[00:00:47] Speaker 04:
Kathleen Spray here on behalf of Detroit Athletic Company, the appellant.

[00:00:52] Speaker 04:
Before I get into some of the specifics that I've noted for today's discussion, I'd like to step back and take a bit of a broad brush stroke, because I think that's really what's been missing from this matter at really all stages of the analysis.

[00:01:06] Speaker 04:
And to do that, I think it's important to remember that the DuPont factors are 13 non-exclusive factors, the last of which is all encompassing anything that is probative of use analysis for the reason that we're looking at the totality of this case.

[00:01:25] Speaker 04:
We're looking at what the consumer is experiencing in the market as to these particular marks.

[00:01:32] Speaker 04:
And it's not a bright line test.

[00:01:34] Speaker 04:
It's not a simple

[00:01:36] Speaker 04:
First word is always important.

[00:01:38] Speaker 04:
Last word is always important.

[00:01:39] Speaker 04:
What we're trying to do is look at what is the consumer's experience, and is that confusing as to the source of goods?

[00:01:45] Speaker 04:
And I think one thing that's very indicative is some of the pictures that may have been glossed over along the way.

[00:01:52] Speaker 04:
And so I invite you to look at appendix page 225, which is the Registrant Detroit Athletic Club's website.

[00:02:00] Speaker 04:
There's some photos on there that really go to how the registrant is marketing itself to the consumer,

[00:02:06] Speaker 04:
They really go to the luxury private club atmosphere that is the Detroit Athletic Club and the registrant.

[00:02:14] Speaker 04:
Terms like distinction, terms like distinguished pictures of weddings and the, quite frankly, beautiful building that is housing the Detroit Athletic Club really tell the story.

[00:02:27] Speaker 00:
One of the problems I have is that it seems to me that your problem is really with the breadth

[00:02:35] Speaker 00:
of the registration that was given to the Detroit Athletic Club for its mark, that its registration claims too broad of a category of clothing.

[00:02:50] Speaker 00:
Why isn't that relevant to a cancellation proceeding, but not relevant to the kind of proceeding that we have here?

[00:02:58] Speaker 04:
Well, I think, first of all,

[00:03:01] Speaker 04:
The importance of the Sears case and Inrei Seidel lingerie as to the markets in which clothing travel is very important.

[00:03:12] Speaker 04:
I think the presumption that there is only one single trade channel that clothing travels in is erroneous.

[00:03:20] Speaker 04:
And I think the Trademark Trial and Appeal Board has recognized in those cases that clothing travels in many different... But you're misunderstanding my question because there are two different standards to apply.

[00:03:32] Speaker 00:
One is in a cancellation proceeding where you say you gave them a registration that's too broad.

[00:03:38] Speaker 00:
And then the other is in a proceeding like this where you're seeking to register your own mark, which on its face is very close to an alternative mark, and we are stuck

[00:03:49] Speaker 00:
with the categories that were given in the registration.

[00:03:53] Speaker 00:
It's a different analysis.

[00:03:56] Speaker 04:
Yes, except that first of all the application is for a very limited scope of the trade channel.

[00:04:03] Speaker 04:
The application is very specific to sports team related clothing, online retail clothing.

[00:04:09] Speaker 04:
And I think also the fact that there is this potential for a broad trade channel is overshadowed by

[00:04:19] Speaker 04:
the other factors, the other 12 factors that are available to us under DuPont.

[00:04:24] Speaker 04:
The trade channel, the potential trade channel that is not being occupied in the space right now is only one small factor in the totality, again, of what the consumer is experiencing.

[00:04:37] Speaker 04:
And in the Detroit regional market where these marks are being encountered, perhaps someday under some hypothetical

[00:04:48] Speaker 04:
the Detroit Athletic Club that has been in business for over 100 years and has never entered this channel might potentially, under this registration, engage in some sort of clothing enterprise.

[00:05:02] Speaker 04:
But the fact that the consumer is not experiencing that in the current situation overshadows that one small factor among these 13 factors in the DuPont.

[00:05:13] Speaker 00:
Have you filed a cancellation proceeding?

[00:05:15] Speaker 04:
We have not yet.

[00:05:17] Speaker 04:
we feel strongly that both of these marks are entitled to exist concurrently as they have for at least the last 16 years in the market without confusion.

[00:05:31] Speaker 04:
So going forward, I think that it is important, and again, you can weigh the photograph at appendix page 91 of the applicant's housing and their marketing of what they're putting out there to the consumer.

[00:05:46] Speaker 04:
It's very different and I think pretty clearly shows why these two marks can coexist in very different and definitely not confusing circumstances.

[00:05:59] Speaker 04:
That being said, I want to make clear that the minutia and sort of the analysis of one word or two words is really not at the heart of this.

[00:06:13] Speaker 04:
And I think that's fairly well established.

[00:06:16] Speaker 04:
And the focus on cases like Palm Bay imports on the first word is really a result of the marketing.

[00:06:24] Speaker 04:
It's not a factor of the first word.

[00:06:27] Speaker 00:
It's a result of... How can you try to use the words company versus club as a basis for differentiation when they were both disclaimed?

[00:06:39] Speaker 04:
Well, I think NRA, National Data Corporation,

[00:06:43] Speaker 04:
holds pretty clearly that it's inappropriate to give the presence or absence of a disclaimer legal significance because the consumer doesn't understand what is disclaimed and what is not disclaimed and what we're looking at is what does the consumer see?

[00:06:57] Speaker 04:
Is it confusing to them?

[00:06:58] Speaker 04:
And particularly in this case where the terms co and club really describe the marketing that is happening, the way in which the consumer is experiencing these marks, I think that's very important and the disclaimer

[00:07:12] Speaker 04:
is not going to impact whether there is or is not confusion, because the consumer doesn't know that those terms are disclaimed.

[00:07:20] Speaker 03:
And where you have admittedly geographically descriptive marks... Well, the consumer also doesn't have this radio access to the pictures that you're showing us today.

[00:07:31] Speaker 04:
But they do, because those pictures are available online.

[00:07:34] Speaker 04:
The picture at appendix page 225 is the home page of the registrant's website.

[00:07:41] Speaker 04:
In today's digital world, it is the equivalent of the department store in Sears or in Ray Seidel Lingerie.

[00:07:50] Speaker 04:
This is where the consumer is actually going to look for information on the club and on the company.

[00:07:57] Speaker 04:
This is the picture that they'll see.

[00:07:59] Speaker 04:
Increasingly, in this digital world, pictures are becoming more and more

[00:08:04] Speaker 04:
an indicator of what the consumer's experience is.

[00:08:07] Speaker 00:
But again, the mark that you're seeking is simply the words.

[00:08:11] Speaker 00:
You're not seeking a mark with a particular depiction.

[00:08:16] Speaker 04:
Correct.

[00:08:17] Speaker 04:
And let me clarify that when I refer to the pictures, I'm referring to them as a part of a marketing scheme on behalf of both entities that are involved here in terms of showing the consumer what they do and showing the consumer

[00:08:30] Speaker 04:
what their goods and services are and the experience of the consumer in terms of distinguishing.

[00:08:36] Speaker 00:
Is there anything in the Detroit Athletic Club registration itself that would limit it in terms of its ability to market sports team paraphernalia or to market in retail or online forums?

[00:08:53] Speaker 04:
No, they would have the potential someday if they chose to enter those kinds of

[00:08:58] Speaker 04:
those kinds of arenas.

[00:09:00] Speaker 04:
However, I do think that it's pretty clear from cases that the Trademark Trial and Appeal Board have recognized themselves that clothing, general clothing, can be differentiated.

[00:09:13] Speaker 04:
It often is differentiated from things like sports teams, apparel, things like that.

[00:09:19] Speaker 04:
There are different trade channels for clothing.

[00:09:22] Speaker 04:
So if the Detroit Athletic Club someday decided to enter a market for clothing,

[00:09:28] Speaker 04:
described as it is in the registration, that still doesn't overlap and encroach upon the channel that is very specific.

[00:09:39] Speaker 04:
And I think if you look to even the third-party registrations that are offered by the appellee, the team sports clothing business is very specific.

[00:09:51] Speaker 04:
All of the pages that are offered in the appellee's brief

[00:09:55] Speaker 04:
They are all differentiated.

[00:09:57] Speaker 04:
When you see team sports clothing, it is on a separate page.

[00:10:01] Speaker 04:
It is not included in the type of general clothing that is described in the registration.

[00:10:07] Speaker 00:
Have you asked the Detroit Athletic Club if it would be willing to ask for a modification of its registration to disclaim sales of sports team clothing as opposed to sales of products with its own mark?

[00:10:21] Speaker 04:
We have not for two reasons, one first and foremost being that we feel that we are entitled to, as they are entitled to, exist in this market concurrently without confusion.

[00:10:33] Speaker 04:
And so there's no need to ask for that, which we have the right to have.

[00:10:37] Speaker 04:
And number two, there are practical limitations that I think are appreciated more in the Detroit area in terms of getting to

[00:10:48] Speaker 04:
the board of directors of the Detroit Athletic Club and getting this accomplished.

[00:10:52] Speaker 04:
There's practical considerations that make that very difficult.

[00:10:55] Speaker 02:
Well, maybe while cancellation proceeding, there might be some interest in a settlement.

[00:11:00] Speaker 04:
That's always a possibility.

[00:11:02] Speaker 04:
But we do feel very strongly that we have the right to exist in this market in this way as they do.

[00:11:08] Speaker 03:
Why did you disclaim the athletic company portion of the market?

[00:11:12] Speaker 04:
When did we?

[00:11:13] Speaker 03:
Why?

[00:11:13] Speaker 04:
Oh, why did we?

[00:11:15] Speaker 04:
It was as a result of the generic nature, the descriptive nature of the word athletic.

[00:11:23] Speaker 04:
And I think as you'll see in the Detroit Athletic Club.

[00:11:25] Speaker 03:
So do you argue that we should give some sort of legal meaning to generic terms?

[00:11:30] Speaker 04:
I think they can have.

[00:11:31] Speaker 04:
Yes, I think they can have.

[00:11:33] Speaker 03:
What's the authority for that?

[00:11:34] Speaker 04:
Generic.

[00:11:34] Speaker 04:
I think they can.

[00:11:35] Speaker 04:
Well, a couple of things.

[00:11:38] Speaker 04:
One is the Goodyear case, which has been offered

[00:11:43] Speaker 04:
for the idea that the word company isn't important and isn't source identifying.

[00:11:48] Speaker 04:
That's an 1888 Supreme Court case in which the Supreme Court actually held that the word company gives an indication that the parties have formed an association or a partnership to deal in goods, that there is meaning there.

[00:12:00] Speaker 04:
And I think that was also held in the Opdahl case from this court where the court was dealing with whether .com has some sort of commercial impression.

[00:12:09] Speaker 04:
and that the court there held also that the dot com is similar to the impression created by co for company and that's the association of a commercial entity with a mark so in fact those cases do indicate that despite the disclaimer which again the public will not have information on those terms have meaning and I think

[00:12:34] Speaker 04:
in terms of the marketing of these particular entities, they have very real meaning, a very important meaning that is probative of what the consumers are getting from these two various entities and where these goods and services are coming from.

[00:12:47] Speaker 04:
So in this case, maybe unlike many, it's very important.

[00:12:52] Speaker 04:
It's very instructive of what the consumer experience is, and that is, after all, what we're after here.

[00:12:59] Speaker 04:
What is the consumer encountering, and is it confusing?

[00:13:02] Speaker 00:
You're into your butter.

[00:13:03] Speaker 00:
You want to save the rest of it?

[00:13:04] Speaker 04:
Sure.

[00:13:05] Speaker 00:
Thank you.

[00:13:14] Speaker 01:
Good morning, and may it please the Court.

[00:13:17] Speaker 01:
I think, Your Honor, Judge O'Malley hit on the real issue here, which a lot of the things that the appellant is arguing are things that are better suited for an inter partes dispute on a cancellation proceeding, or maybe something that can be worked out amicably between Detroit Athletic Club and the appellant through a consent agreement.

[00:13:34] Speaker 01:
which we would consider in a future application.

[00:13:37] Speaker 01:
The second thing I wanted to point out is that... What kind of consent agreement could they enter into, for instance?

[00:13:45] Speaker 00:
Can you give me an example?

[00:13:46] Speaker 01:
Yeah, I mean, a consent agreement has to be fairly specific, especially when you have two marks as close as these.

[00:13:53] Speaker 01:
It would probably have to, I think, rely upon maybe a limitation that the Detroit Athletic Club was willing to enter into about where they're selling their goods,

[00:14:04] Speaker 00:
and the kind of environment that is, it would probably have to... Or the kinds of... I mean, would they be able to still sell all of their clothing on any format that they wanted to, as long as they agreed that their clothing would be limited to just the club mark?

[00:14:28] Speaker 01:
As long as the clothing only limited to the club mark, that would be another thing that they might want to talk about is whether or not they want to exclude putting Detroit professional sports team logos on their goods.

[00:14:40] Speaker 01:
That would be another thing that could be discussed.

[00:14:43] Speaker 01:
So we would take it for whatever the facts are that these two parties would work out and assess whether or not

[00:14:50] Speaker 01:
We thought that it would avoid the likelihood of confusion between the registration of these two marks.

[00:14:55] Speaker 00:
Is there any evidence that the club has ever actually marketed clothing with anything other than just its own club mark?

[00:15:03] Speaker 01:
There isn't, and there isn't any need to have that.

[00:15:05] Speaker 01:
The registration is broad and allows them to market their goods bearing the club mark and any other marks they want to put on it.

[00:15:14] Speaker 01:
So there's really no requirement that you use only one mark on a particular kind of good.

[00:15:21] Speaker 00:
The board didn't address some of the evidence that the Detroit Athletic Company presented.

[00:15:29] Speaker 00:
And how do we deal with that?

[00:15:32] Speaker 00:
I'm not sure what evidence... Well, they didn't address the online reviews or the Facebook pages.

[00:15:38] Speaker 00:
Why not?

[00:15:39] Speaker 01:
And does it matter?

[00:15:42] Speaker 01:
The online reviews, I guess what Your Honor is referring to is the ones that talk about what a great club it is and how exclusive it is.

[00:15:50] Speaker 01:
That really doesn't matter because of, as you pointed out earlier, the breadth of the registration.

[00:15:55] Speaker 01:
It has no limitations that the goods are going to be sold only within the confines of an exclusive members only club.

[00:16:01] Speaker 01:
It's broader and that's something that could be contested perhaps if they didn't sell them outside that in the cancellation.

[00:16:08] Speaker 01:
But we have to take it at face value here because of

[00:16:11] Speaker 01:
I think it's section seven of the Lanham Act.

[00:16:14] Speaker 01:
It talks about the presumptions that go along with the registration.

[00:16:18] Speaker 01:
It's given validity the exclusive right to use the mark on the goods specified.

[00:16:23] Speaker 01:
So what they're trying to say is you're only using them on a subset of those goods.

[00:16:28] Speaker 01:
And that's not something that we can do in an ex parte proceeding consistent with those... What's your response to your friend's argument that

[00:16:38] Speaker 00:
really you should be doing it in an ex parte proceeding because the DuPont factors are really aimed at what the consumer's experience is.

[00:16:47] Speaker 01:
The DuPont factors are very broad, but they apply not only to ex parte proceedings, they apply to inter partes proceedings as well.

[00:16:54] Speaker 01:
And so in inter partes proceedings, for example in opposition or cancellation, perhaps a broader number of these, particularly in cancellations that are use-based, can get into the mix.

[00:17:06] Speaker 01:
But it's very clear that when you're talking about an ex parte proceeding, anything that goes to limiting the registration that's been cited to the applicant to something less than the scope of what it covers is not permissible.

[00:17:22] Speaker 00:
And what's your response to Judge Ray's question?

[00:17:25] Speaker 00:
What role do generic or highly descriptive terms play in the likelihood of confusion analysis?

[00:17:31] Speaker 01:
But we have to consider them.

[00:17:32] Speaker 01:
It's not just because of the fact that they're generic.

[00:17:35] Speaker 01:
We don't consider them at all.

[00:17:36] Speaker 01:
We consider them in the context of the entire mark.

[00:17:39] Speaker 01:
And that's what the board did here.

[00:17:41] Speaker 01:
It simply said that when you have the words Detroit Athletic as your first two words in both marks, followed by a word that's been disclaimed, the word club.

[00:17:52] Speaker 01:
And the word co is not only doesn't have any source identifying significance, it doesn't really change the overall impression that the marks are very similar.

[00:18:02] Speaker 00:
So even if something's disclaimed, it still gets considered in the totality of the mark.

[00:18:08] Speaker 01:
Absolutely, and it was here as well.

[00:18:09] Speaker 01:
My friend talked a lot about the right to exist.

[00:18:15] Speaker 01:
This isn't a case about the right to exist.

[00:18:18] Speaker 01:
This only decides whether or not the appellant gets a registration.

[00:18:22] Speaker 01:
Registration does not have anything to do with the ability to use the mark in the marketplace.

[00:18:27] Speaker 01:
So this is not about the right of the appellant to exist as they obviously have for the last 16 years.

[00:18:32] Speaker 03:
Do you agree with your opponent that the Goodyear case supports their position?

[00:18:38] Speaker 01:
I don't believe that it does.

[00:18:39] Speaker 01:
What it said, and particularly in the context of the record in this case,

[00:18:44] Speaker 01:
What the Goodyear Court said was that words that tell you the kind of entity that a party is, co, inc, or more modern, things like an LLC, doesn't really provide source identification information.

[00:18:59] Speaker 01:
It does have meaning, as counsel said, but not source identifying meaning.

[00:19:03] Speaker 03:
Those are historic identifiers for business forms.

[00:19:08] Speaker 03:
But what about something more modern, like a dot com or dot net?

[00:19:12] Speaker 01:
That's a very different kettle of fish.

[00:19:14] Speaker 01:
I think there's a case, I can't remember which one, in which the former Judge Rader talked about, you could probably have something like tennis.net where the dot, the generic TLD would have maybe some meaning in the context of the mark itself, the words that precede it, but that's not really the case with co or inc, which is what we have here.

[00:19:36] Speaker 00:
Well, what about the fact that because it's the club,

[00:19:40] Speaker 00:
The phrase Detroit Athletic seems to be a geographical descriptor.

[00:19:46] Speaker 00:
In other words, we're in Detroit, and we're an athletic club.

[00:19:51] Speaker 00:
Whereas the Detroit Athletic Co.

[00:19:55] Speaker 00:
seems to be a descriptor of the sports teams whose products are relevant.

[00:20:01] Speaker 00:
Does that matter?

[00:20:02] Speaker 01:
It doesn't matter in this case because in this case what the record supports is that there was an initial refuser for geographic descriptiveness and that's why they opted to go to the supplemental register.

[00:20:13] Speaker 01:
So this is not a case where I think the record supports the notion that Detroit athletic actually refers to particular kinds of logos that are on the clothing.

[00:20:25] Speaker 01:
It really only supports the conclusion that it's a geographic descriptor because of how the appellant

[00:20:30] Speaker 01:
handled the prosecution of this case.

[00:20:33] Speaker 00:
So you view both as geographic descriptors?

[00:20:35] Speaker 01:
Yes.

[00:20:36] Speaker 01:
It appears that they both have geographic descriptors, and that the registered mark was, I believe, registered under Section 2F for acquired distinctiveness.

[00:20:45] Speaker 03:
One more point I wanted to make to Judge... Go ahead.

[00:20:49] Speaker 01:
One more point I wanted to make to the question you last asked me was, you were talking about what difference does co or club make in this case.

[00:20:56] Speaker 01:
And the record in this case is that there are a number of clubs

[00:21:00] Speaker 01:
that are, in fact, incorporated.

[00:21:02] Speaker 01:
They are corporations.

[00:21:03] Speaker 01:
So that shows that the Coe versus Club doesn't really have the source identification potential that the appellant is arguing for.

[00:21:13] Speaker 03:
So does the DuPont analysis change at all, given that we're dealing with the supplemental register here?

[00:21:19] Speaker 01:
It doesn't.

[00:21:20] Speaker 01:
It's the same analysis.

[00:21:22] Speaker 01:
Really, the only thing that is different is when you're looking at the strength of the marks, you're really kind of limited to weaker marks when you're talking about marks that are on the supplemental register.

[00:21:33] Speaker 00:
One of the concerns I had about the board's opinion is it seemed to say, not just that there was no evidence of actual confusion, but it seemed to say that actual confusion was irrelevant.

[00:21:44] Speaker 00:
And I'm not quite sure how that can be when actual confusion is itself a de-confacto.

[00:21:50] Speaker 01:
Yeah, it is.

[00:21:51] Speaker 01:
Actual confusion can be relevant.

[00:21:54] Speaker 01:
For example, in a case where there is actual confusion, that can be relevant to know that there is likelihood of confusion.

[00:22:01] Speaker 01:
When you're saying that there is no actual confusion, that's very difficult to show even in an inter partes case.

[00:22:11] Speaker 01:
because the test is not whether there are instances of actual confusion, but whether or not there is a likelihood of confusion.

[00:22:17] Speaker 01:
But in the next Part A case, it's even harder because you don't even have one side of the story in front of the court.

[00:22:24] Speaker 00:
And that's why in those sorts of cases... But wait, actual confusion is always relevant to the question of likelihood of confusion, right?

[00:22:31] Speaker 01:
It is relevant, yes.

[00:22:32] Speaker 00:
But it's something that really... But do you read the board's opinion the way I do, which is to say that it's not relevant?

[00:22:39] Speaker 01:
I don't think I read it to say that it's completely irrelevant.

[00:22:43] Speaker 01:
It's of very little value.

[00:22:45] Speaker 01:
And particularly in a case like here, where there actually is no evidence, there's just counsel's argument that there's no actual confusion.

[00:22:52] Speaker 01:
There is actually no evidence, no declarations that actually speak to that.

[00:22:57] Speaker 00:
And there was one customer affidavit.

[00:23:02] Speaker 00:
But what's your response to that?

[00:23:04] Speaker 01:
The affidavit did not cover.

[00:23:06] Speaker 01:
The customer declaration talked about

[00:23:07] Speaker 01:
how he looks at the name Detroit, and he thinks that the mark means that they sell Detroit professional sports logoed clothing.

[00:23:15] Speaker 01:
That really he didn't talk about actual confusion or that he knows the difference between the Detroit Athletic Club and the Detroit Athletic Co.

[00:23:25] Speaker 01:
And if there are no further questions, I'd ask that the court affirm.

[00:23:30] Speaker 00:
Thank you.

[00:23:38] Speaker 04:
I'd like to pick up for a moment on that last point of actual confusion and an ex parte proceeding.

[00:23:43] Speaker 04:
The Trademark Trial and Appeal Board recognized an exception to the rule for an ex parte proceeding in Inray Association of the U.S.

[00:23:50] Speaker 04:
Army, which is found at 85 U.S.

[00:23:52] Speaker 04:
P.Q.

[00:23:52] Speaker 04:
2nd 1264.

[00:23:54] Speaker 04:
It's noted as TTAB precedent in 2007, and they recognized an exception to that rule where they said that evidence of long-standing concurrent use in the same geographic area suffices to establish

[00:24:06] Speaker 04:
under the eighth DuPont factor, which is length of time, during, and conditions under which there's been concurrent use without evidence of actual confusion.

[00:24:15] Speaker 04:
But the absence of that evidence under also the seventh factor, which is a lack of confusion, actual confusion, is legally significant and entitled to some weight in the likelihood of confusion analysis in an ex parte case.

[00:24:30] Speaker 00:
But the problem is the burden is on you.

[00:24:33] Speaker 00:
to show the absence of actual computing.

[00:24:35] Speaker 00:
And you submitted one customer declaration that never even mentioned the Detroit Athletic Club.

[00:24:42] Speaker 00:
So how is that evidence?

[00:24:44] Speaker 04:
In addition to that one affidavit, there are, as part of the online searches, numerous reviews of both the Detroit Athletic Club and Detroit Athletic Company by consumers showing a complete understanding of the goods and services that are being provided by both companies and where to go

[00:25:01] Speaker 04:
which company to go to, which entity to go to, which club to go to, to find what they're looking for.

[00:25:06] Speaker 00:
None of those were actually instances in which both marks were put before those consumers, right?

[00:25:12] Speaker 00:
They were just talking about, I know what this company does, and I know what this company does, but not as compared to each other.

[00:25:18] Speaker 04:
Correct.

[00:25:18] Speaker 04:
But they demonstrate a consumer understanding of the difference between the two and what is being provided.

[00:25:25] Speaker 02:
If they're reviewing on the right website, it means they ultimately got to the right website.

[00:25:30] Speaker 02:
It doesn't seem to me that that

[00:25:32] Speaker 02:
necessarily means they didn't type in Detroit Athletic and click on the wrong one first and realize they were in the wrong place.

[00:25:39] Speaker 02:
I mean, that happens to me all the time when I try to Google something.

[00:25:43] Speaker 02:
I mean, wouldn't that be evidence?

[00:25:45] Speaker 04:
I think that the issue there is that we're trying to determine whether the source of goods and services is confusing.

[00:25:52] Speaker 04:
And so it's not a situation where we're typing in Detroit Athletic.

[00:25:57] Speaker 04:
It's someone who's looking for clothing

[00:25:59] Speaker 04:
and might get confused potentially, or the argument is that they are going to get confused by searching for clothing and finding these two.

[00:26:06] Speaker 04:
And I think there's evidence in the record showing that when you search Detroit Athletic Clothing, because that's the registration that we're talking about, is a clothing registration, that Detroit Athletic Company comes up, Detroit Athletic Club does not.

[00:26:20] Speaker 04:
I know that there was a reference from the appellee on page 29 of his brief indicating that there was an instance of

[00:26:28] Speaker 04:
that showing up, but that's not accurate.

[00:26:30] Speaker 04:
The result that was shown on appendix page 97 is a review site.

[00:26:35] Speaker 04:
It did not take the search to the Detroit Athletic Club, nor did it take it to any clothing site at all.

[00:26:42] Speaker 04:
So again, there would be no confusion.

[00:26:44] Speaker 04:
When looking at Detroit athletic clothing, it's very clear that the African comes up.

[00:26:49] Speaker 03:
But that's where the observer has to dig a little bit, and then the confusion is cleared.

[00:26:53] Speaker 03:
But just looking at the marks themselves, by your example, if you're taken to the wrong website, doesn't that indicate confusion?

[00:27:01] Speaker 03:
I mean, confusion by the observer looking at the marks as a whole.

[00:27:05] Speaker 04:
Well, I think there wasn't confusion, is the point.

[00:27:07] Speaker 04:
There wasn't an instance where

[00:27:10] Speaker 04:
a consumer looking for Detroit athletic clothing was taken to the wrong website.

[00:27:14] Speaker 04:
It was all of the results dealt with the Detroit athletic company.

[00:27:18] Speaker 04:
So there was no confusion.

[00:27:20] Speaker 04:
And so there is evidence in the record that there was no actual confusion over a long period of time.

[00:27:26] Speaker 04:
In the US Army case, the period of time that was accepted as long enough to be probative was five years.

[00:27:32] Speaker 04:
Here we're talking about 16 years.

[00:27:34] Speaker 04:
OK.

[00:27:34] Speaker 04:
You're out of time.

[00:27:35] Speaker 04:
Thank you.

[00:27:36] Speaker 04:
Thank you.

[00:27:37] Speaker 04:
We'd ask that the court reverse the TAB decision.