[00:00:47] Speaker 03: From telephones to chocolate. [00:00:50] Speaker 03: Next case is Henry Lawrence Fruits, 2018-10-16. [00:00:56] Speaker 03: Mr. Villeneuve. [00:00:59] Speaker 01: Good afternoon, Your Honor. [00:01:01] Speaker 01: Well, first of all, thanks to court for scheduling us so close to the initial date. [00:01:06] Speaker 01: This was really appreciated. [00:01:08] Speaker 01: So all I would like to say is that at issue today, it's very simple. [00:01:12] Speaker 01: It's one word, glassage. [00:01:15] Speaker 01: And as a French Canadian myself, I know how it's pronounced, but I've never met an American really that knows this word, that knows what it is, that knows how it's used, that knows its primary significance. [00:01:28] Speaker 01: And that is in the four years I have litigated this. [00:01:30] Speaker 01: I would like to introduce my client, Mr. Lawrence, a CEO, fourth generation. [00:01:34] Speaker 01: They've been doing icing for over 100 years. [00:01:37] Speaker 03: The trademark examiner made some findings, right? [00:01:42] Speaker 03: And why are they not [00:01:44] Speaker 03: based on substantial evidence? [00:01:48] Speaker 03: Findings as to what the public understands glassage to mean? [00:01:58] Speaker 01: Well, the office simply went online on one website, found a translation, which we disagree with. [00:02:06] Speaker 01: We've provided translation. [00:02:08] Speaker 01: When I grew up, glassage was a hockey penalty. [00:02:11] Speaker 01: That's evidence. [00:02:12] Speaker 01: Well, they introduced a translation, which is a translation from one website. [00:02:17] Speaker 01: We introduced dictionaries, Larousse. [00:02:20] Speaker 01: We introduced many things. [00:02:21] Speaker 01: We introduced 14 or 13 definitions in total, and none of which had anything to do with their definition. [00:02:28] Speaker 01: So they offered a translation which is different than a definition, but we offered definitions from the way this word is seen in France. [00:02:39] Speaker 01: For example, upon judicial notice, the improper judicial notice that they took, they offered something from the UK. [00:02:46] Speaker 01: And in the UK, this thing was egg wash. [00:02:50] Speaker 01: And they took judicial notice that the word glaçage, met, was a French word, and actually meant egg wash. [00:02:57] Speaker 01: Chocolate egg wash, of course, makes no sense. [00:03:01] Speaker 01: We challenged, one of the issues here is we challenged the way they did this. [00:03:05] Speaker 01: They reached out and they [00:03:09] Speaker 01: knew that they didn't have enough evidence to sustain this case. [00:03:12] Speaker 01: They didn't have any real dictionary definition. [00:03:14] Speaker 01: It's not in the United States. [00:03:15] Speaker 02: So what are we talking about? [00:03:16] Speaker 02: Are we talking about a substantial evidence issue or is there a legal error here? [00:03:21] Speaker 01: There's both here. [00:03:23] Speaker 02: What's the legal error? [00:03:24] Speaker 01: Well, the legal error is number one, they should not have taken evidence of all of these foreign websites. [00:03:29] Speaker 01: The TTAB by itself since that time has come out with several cases that say unless you can prove [00:03:36] Speaker 01: demonstrate that Americanize on this website, there is no connection here, and you cannot prove that this, you cannot infer a meaning in the United States from what happens abroad. [00:03:47] Speaker 01: There's even a case where it is like we cited, ebay.uk, the Tweeds case. [00:03:52] Speaker 01: So in the Tweeds case, they said ebay.uk, which is a very well-known website, is by itself not evidence. [00:04:00] Speaker 01: So the mistake is they grab this evidence, which they shouldn't have done, [00:04:04] Speaker 01: And then they provided no evidence as a matter of law that connects Americans to these websites, these different. [00:04:12] Speaker 01: We have been able to look at this evidence and find that about half of them were in the UK, were in Kuwait, were in Canada. [00:04:20] Speaker 01: Some were easy to diagnose, but the other ones we have no clue as of today. [00:04:24] Speaker 01: We don't know when they were authored. [00:04:25] Speaker 01: We don't know who authored them. [00:04:27] Speaker 01: We don't know. [00:04:28] Speaker 01: What are you saying, that they'd have to show that Americans access these websites? [00:04:32] Speaker 01: The rule is very simple. [00:04:33] Speaker 01: In order to prove genericness... Yes or no? [00:04:35] Speaker 02: Is that your theory that they have to show that Americans actually access the website? [00:04:40] Speaker 01: Well, actually, in their own precedence recently, they have said something like that. [00:04:45] Speaker 01: They have said that you need to show that actually some Americans would have seen this website and to have connected it. [00:04:52] Speaker 01: For example, on the internet, it's very easy to do. [00:04:54] Speaker 01: You can take any website and go on these crawlers and they tell you exactly how many connections there [00:05:01] Speaker 01: and how many people have looked at certain websites. [00:05:03] Speaker 04: How many, but not necessarily from where. [00:05:06] Speaker 01: Exactly. [00:05:06] Speaker 01: Well, again, if we're talking about... It doesn't really help much. [00:05:10] Speaker 01: Well, I understand. [00:05:11] Speaker 01: So, for example, if it's sumo wrestling and this mark is about sumo wrestling, we can assume that some Americans are going to look at a website in Japan that talks about sumo wrestling. [00:05:22] Speaker 01: I understand that. [00:05:23] Speaker 01: Our evidence that we provided is exactly that case. [00:05:26] Speaker 01: We looked, we said, where are people who buy icing? [00:05:30] Speaker 01: Where are they going to see? [00:05:31] Speaker 01: Where are they going to go? [00:05:32] Speaker 01: They're going to go to Betty Crocker, the American Bakers Association. [00:05:37] Speaker 01: They're going to go to the Food Network website. [00:05:39] Speaker 04: Not necessarily. [00:05:40] Speaker 04: Some people fancy themselves French chefs. [00:05:45] Speaker 04: And maybe they all go to their Americans, but maybe they go to French cooking sites in preference to Betty Crocker. [00:05:52] Speaker 01: Well, we even provided evidence of Le Nôtre in Paris. [00:05:57] Speaker 01: Exactly that. [00:05:57] Speaker 01: And they do not use glaçage that way. [00:05:59] Speaker 01: They actually, there was one recipe I found, just one, and was actually some type of egg wash that was on top of it. [00:06:06] Speaker 01: That was not a savory, but... Let me ask you this. [00:06:12] Speaker 04: I understand that the examining attorney did not rely on the doctrine of foreign equivalence. [00:06:19] Speaker 04: But if the doctrine had been applied, why wouldn't this be a case in which it was [00:06:27] Speaker 04: perfectly suitable for its application. [00:06:31] Speaker 01: It's very simple. [00:06:32] Speaker 01: The doctrine was not applied because the first word is in English and the other word is in English. [00:06:37] Speaker 04: Does that really matter? [00:06:38] Speaker 04: I mean, if I had the sushi restaurant, and suppose we were at an age in which sushi was less well known, surely the doctrine of foreign equivalence would apply to that. [00:06:51] Speaker 01: I agree with you, Your Honor. [00:06:52] Speaker 01: You wouldn't be disqualified because of the word restaurant. [00:06:54] Speaker 01: Exactly. [00:06:54] Speaker 01: So assuming you are correct, which we don't assume, the case is in the Reposardin, which is the Veuve Clicquot, the famous champagne. [00:07:01] Speaker 01: And the word there was veuve in French, which was widow in English. [00:07:06] Speaker 01: And there was something out there on the registry that was about widow. [00:07:10] Speaker 01: And that was exactly the question. [00:07:11] Speaker 01: And the word veuve was found, it was a French word for, for drinking. [00:07:16] Speaker 01: And it was found not to be [00:07:19] Speaker 01: able to be translated under the Doctrine of Foreign Affairs? [00:07:22] Speaker 02: Well, that was because, wasn't it, that the word widow wasn't associated with alcoholic beverages. [00:07:27] Speaker 02: Whereas here, the situation we're concerned with is icing, and the question is if you translate it, it relates to icing. [00:07:41] Speaker 01: We humbly disagree, Your Honor. [00:07:43] Speaker 01: When we go on Amazon and we put the word glaçage, what comes out is a beauty problem. [00:07:49] Speaker 01: something that goes on the face and makes a child. [00:07:52] Speaker 04: Well, if this were to come up in the form of the Doctrine of Foreign Equivalence and was viewed as a substantial evidence question, I think there would be ample sufficient evidence to say that blessage has, as one of its principal meanings, some form of blazer icing. [00:08:10] Speaker 04: You've introduced evidence to the contrary, but there's plenty of evidence that would support that conclusion, it seems to me. [00:08:18] Speaker 01: Your Honor, [00:08:18] Speaker 04: So assume that I were to conclude that there is plenty of evidence to support that. [00:08:23] Speaker 04: Is there any other reason that the doctrine of foreign equivalence wouldn't apply here? [00:08:27] Speaker 01: Well, when the USPTO rejected us on descriptiveness, we didn't appeal to this court. [00:08:35] Speaker 01: We said, OK, we're going to go on the supplemental register, and we will take five years. [00:08:40] Speaker 01: This is a company that manages hundreds of years. [00:08:43] Speaker 01: And we will come back. [00:08:44] Speaker 01: We will create secondary meaning, and people will know this. [00:08:47] Speaker 01: Then they came up with this notion that actually this term was generic. [00:08:52] Speaker 01: Now in regards to generic, if we play that game, then it is chocolat, icing, icing. [00:08:58] Speaker 01: That's how he's selling it. [00:09:00] Speaker 01: And so if you take even the concept that actually the doctrine of foreign equivalent makes this word being replaced, when the average American stops, he stops and translates, so the average buyer here will see chocolate, icing, icing, then that [00:09:16] Speaker 04: Well, that would be like saying that if you had a restaurant which was entitled Russian Pelmeni Dumplings. [00:09:27] Speaker 04: Pelmeni is dumplings. [00:09:28] Speaker 04: So you'd be saying Russian dumplings, dumplings, and therefore you could use it because it didn't mean to a Russian dumplings. [00:09:36] Speaker 01: One of the problems I have is I know this word. [00:09:39] Speaker 01: I grew up with the mother. [00:09:41] Speaker 01: You're not evidence. [00:09:43] Speaker 01: I'm not evidence, but what I'm saying is the evidence here to sustain a case for genericness is relatively straightforward. [00:09:50] Speaker 01: We need to prove that the average American, when you tell them this word, they know what it is. [00:09:54] Speaker 04: Wait, wait, wait. [00:09:55] Speaker 04: Average American? [00:09:57] Speaker 04: I mean, probably the average American probably doesn't know what sushi is. [00:10:02] Speaker 04: You don't have to have the average American, you don't have to have 150 million people that know what the word means as long as it's generic and there is a significant degree of recognition in the market for this particular product. [00:10:18] Speaker 01: Well, we have defined a genus and that's how it works. [00:10:22] Speaker 01: What is it and who does this mark apply to? [00:10:25] Speaker 01: How narrow is the segment? [00:10:26] Speaker 01: And it has been defined as the average ordinary customer, the average person, not a baker, not a chef, [00:10:32] Speaker 01: but the average person who buys icing. [00:10:35] Speaker 01: So that has been defined already. [00:10:37] Speaker 01: Under the doctrine of foreign equivalent, you are correct that actually there needs to be a segment of the population that is substantial. [00:10:44] Speaker 01: We've proven before, and that's why the doctrine of equivalent is not there, because I fought this issue for two years, and I proved that this word was not stopped and translated, in addition to the notion that nobody knew about this word here. [00:10:58] Speaker 01: The translation here, when I provided a translation, [00:11:01] Speaker 01: of Larousse saying what it means here in the United States. [00:11:04] Speaker 01: It's a song. [00:11:06] Speaker 01: They even introduced evidence saying it was blue cheese, a type of blue cheese glaze or something. [00:11:13] Speaker 01: The main issue is that they have made a case which is just the internet. [00:11:18] Speaker 01: We go on the internet, we put a word on the internet, we look at what comes up. [00:11:22] Speaker 01: We have made a rebuttal case that says, I can't find this word. [00:11:26] Speaker 01: There's not a single trademark that was filed where the goods and services read, [00:11:31] Speaker 01: icing, colon, frosting, colon, glaçage. [00:11:39] Speaker 01: Nobody has ever filed a trademark in the United States of America, ever. [00:11:43] Speaker 01: The only person who's done it is him. [00:11:45] Speaker 01: I've introduced that evidence saying since nobody who's ever filed for icing has ever, because that's what they do, they generally put synonyms in order to capture more of these certificates. [00:11:55] Speaker 01: Not a single certificate, not a single mark, not a single applicant, [00:12:00] Speaker 01: We've introduced the evidence, we put that word in, and it comes out completely blank. [00:12:04] Speaker 01: We've introduced all these websites. [00:12:05] Speaker 01: There's 20,000 recipes on Food Channel website. [00:12:09] Speaker 01: Not one recipe uses that word. [00:12:12] Speaker 01: Betty Crocker doesn't use it. [00:12:14] Speaker 01: The American Bakers Association doesn't use it. [00:12:16] Speaker 01: Nobody uses this word. [00:12:18] Speaker 01: And so the rebuttal case, which we're supposed to be given the benefit of this, is what does the segment of the population that buys these goods would think and associate [00:12:30] Speaker 01: We've come out blank. [00:12:32] Speaker 01: So just to finish my argument, in Ray Kondrio, it was very clear, there was dictionaries, three of them. [00:12:40] Speaker 01: And what's important about dictionaries is not really the dictionary itself. [00:12:43] Speaker 01: It's the fact that people who put words in dictionary thinks about it. [00:12:47] Speaker 01: There's an editing process. [00:12:49] Speaker 01: There's a review process. [00:12:50] Speaker 01: There's a collectiveness that put things into the dictionary. [00:12:54] Speaker 01: So as for descriptiveness, it's just what does the word mean? [00:12:58] Speaker 01: As for genericness, [00:13:00] Speaker 01: Do Americans see that word that way? [00:13:02] Speaker 01: And so same thing for the Time magazine, same thing for this court's opinions. [00:13:06] Speaker 01: When words are picked very carefully and they are used very carefully, then yes, there is a presumption that these words are important. [00:13:14] Speaker 01: On blog posts that are from foreign places, small website, people who put comments, the USPTO itself has said, you know what, this is just not serious evidence. [00:13:24] Speaker 01: It's given no weight. [00:13:26] Speaker 03: Do you want to save some rebuttal time? [00:13:27] Speaker 03: Do you want to continue or save it? [00:13:29] Speaker 01: Thank you, Your Honor. [00:13:29] Speaker 01: I will save the last three minutes. [00:13:35] Speaker 03: Ms. [00:13:35] Speaker 03: Heber, or is it Heber? [00:13:37] Speaker 00: Heber, yeah. [00:13:39] Speaker 00: Good afternoon, and may it please the Court. [00:13:42] Speaker 02: So what's the test for genericness? [00:13:45] Speaker 02: I mean, it talks about the relevant public, and here it's bakers and purchasers of baked goods. [00:13:51] Speaker 02: But what portion of the relevant public has to understand that this word, glossage, means icing? [00:13:59] Speaker 00: Well, there's no percentage. [00:14:01] Speaker 00: No, I understand. [00:14:01] Speaker 02: There's no percentage. [00:14:02] Speaker 02: But a significant part, what's the test? [00:14:08] Speaker 00: You know, it's funny. [00:14:09] Speaker 00: In trademark law, there's variations of how we say who has to recognize this. [00:14:16] Speaker 00: There's things like substantial composite, a substantial portion. [00:14:19] Speaker 00: It's less than a majority. [00:14:21] Speaker 00: There's not any really defined amount. [00:14:24] Speaker 02: Is the substantial portion the right test here? [00:14:27] Speaker 00: It could be, but again, we're not quantifying the numbers. [00:14:31] Speaker 02: Well, that's not quantifying it. [00:14:32] Speaker 02: That's saying what the test is. [00:14:34] Speaker 02: I mean, certainly that, you know, if 0.1% of the relevant public would recognize that that wouldn't be enough, right? [00:14:43] Speaker 00: I think that's fair, yes, but we don't have a way of measuring or doing surveys in expertise. [00:14:50] Speaker 02: I understand, but there's got to be a test. [00:14:53] Speaker 02: I mean, what? [00:14:55] Speaker 02: particularly pertinent here because under Princeton, of course, you have to consider the whole record. [00:15:00] Speaker 02: There's a record that some parts of the relevant public don't use glassage or don't understand glassage to mean icing. [00:15:08] Speaker 02: So to have substantial evidence supporting the board's decision, we have to say, well, you know, they said [00:15:18] Speaker 02: They found these references, and there are other references that didn't recognize it, but they found a lot of substantial portion of the relevant public. [00:15:26] Speaker 02: I mean, I can't decide the case without knowing what the test is. [00:15:30] Speaker 00: Well, Your Honor, I think you can, because I respectfully disagree with the characterization that there's any evidence in this records that shows that people don't know of this term or recognize it, the relevant consumers. [00:15:41] Speaker 00: The kind of evidence that Appellant put in here, they can't find it on Amazon. [00:15:46] Speaker 00: They can't find it on Walmart. [00:15:48] Speaker 00: That only goes to show that there's not somebody else yet out there making pre-made glissage for sale. [00:15:55] Speaker 00: And maybe it's not for sale on Amazon. [00:15:58] Speaker 00: Maybe you could find it in a grocery store, but you're not going to find it on Amazon. [00:16:01] Speaker 00: It doesn't prove anything about what consumers of baked goods. [00:16:05] Speaker 02: You don't have a test for me. [00:16:09] Speaker 00: Your Honor, I do. [00:16:10] Speaker 00: It's about the evidence showing what the meaning is to consumers. [00:16:13] Speaker 02: In terms of the relevant public, what's the test? [00:16:16] Speaker 02: Significant part? [00:16:17] Speaker 02: Substantial poor? [00:16:19] Speaker 00: I think some portion of the public, some meaningful portion of the public. [00:16:23] Speaker 00: We have to have some comfort that we could infer a meaningful portion of the public would understand this term to mean a thing rather than indicate source. [00:16:32] Speaker 00: And we have that here. [00:16:34] Speaker 00: We have lots of recipes. [00:16:35] Speaker 02: Does that meaningful portion test appear in any of the TTAB decisions? [00:16:42] Speaker 00: Your Honor, I'm honestly not aware, and I apologize that I'm not [00:16:47] Speaker 00: having cases in mind that specifically set out. [00:16:50] Speaker 00: This is not an old concept. [00:16:52] Speaker 00: No, it isn't. [00:16:54] Speaker 00: Basic to trademark law. [00:16:56] Speaker 00: That is correct. [00:16:57] Speaker 00: But there is not a percentage applied. [00:16:59] Speaker 00: I think that it is fair to say that, yes, you certainly have to have more than 1%. [00:17:04] Speaker 00: You can certainly have less than 50%. [00:17:06] Speaker 00: And somewhere in there is where we're concerned about. [00:17:10] Speaker 00: But we don't quantify it in terms of percentages. [00:17:12] Speaker 00: We're looking at the evidence to figure out. [00:17:14] Speaker 02: That's the question. [00:17:14] Speaker 02: I never asked about percentages. [00:17:17] Speaker 02: The question is, how do you characterize what portion, just in general terms, it has to be? [00:17:23] Speaker 02: And it seems to me that to decide these cases in a coherent way for the parties, there has to be some test which they're looking to. [00:17:33] Speaker 00: I think an appreciable number. [00:17:35] Speaker 00: That's in other areas of trademark law. [00:17:39] Speaker 00: We've got some appreciable numbers, substantial composite. [00:17:42] Speaker 00: It's less than a majority. [00:17:43] Speaker 00: I apologize. [00:17:45] Speaker 00: I can't give you the... [00:17:47] Speaker 00: the exact phrasing right now. [00:17:50] Speaker 00: But I can give you comfort that this record has substantial evidence in it to support the board's findings. [00:17:57] Speaker 03: Is the test whether the term is understood by the relevant public primarily to refer to that genus of goods or services? [00:18:08] Speaker 00: That is correct. [00:18:09] Speaker 03: That's the Martin Ginn case. [00:18:11] Speaker 00: Yes, and that is in the statutory standard. [00:18:13] Speaker 00: It's the primary significance to the public. [00:18:16] Speaker 00: But I understood Judge Dyke to be asking me, what portion of that public do we need to be focused on? [00:18:22] Speaker 00: And that I don't have a very, you know, I apologize. [00:18:25] Speaker 00: I don't have a direct satisfying answer, but I would go with appreciable number. [00:18:29] Speaker 00: Some portion of the public, you know, has to be, uh, that we have to have a comfort level that they would understand it to mean this. [00:18:38] Speaker 00: And we have that here because of the kinds of evidence we have here, which are recipes. [00:18:42] Speaker 00: We have articles, we have menus. [00:18:45] Speaker 00: from US cafes and restaurants that feature cakes enrobed in glissage, enrobed in chocolate glissage, the very term at issue here. [00:18:58] Speaker 00: And that is the same kinds of evidence that were found sufficient in Northland aluminum, where the term bunt was found generic for ring cake mixes. [00:19:07] Speaker 00: There were four recipe entries there in cookbooks, some of which were foreign. [00:19:12] Speaker 00: There was the Israeli cookbook. [00:19:13] Speaker 00: And there were four food-related articles. [00:19:15] Speaker 00: I would submit there's more evidence here than was probably in the record in the Cordua case, where this court also appealed genericness. [00:19:22] Speaker 00: And there were articles, food-related articles. [00:19:25] Speaker 00: What we're dealing with here is food. [00:19:28] Speaker 00: It is international. [00:19:29] Speaker 03: And when we're looking at the sources that consumers are going to consult, we're looking... If the American public would understand what it means, why are you requiring a translation? [00:19:41] Speaker 00: So these are two separate things. [00:19:43] Speaker 00: which I think the board tried to explain in its decision. [00:19:47] Speaker 00: They're sort of in opposition, though, aren't they? [00:19:50] Speaker 00: They actually relate to one another, even though here the office made the genericness refusal because it found evidence saying, hey, in English, chocolate glissage seems to us to mean icing without the need for translation. [00:20:02] Speaker 00: So we're going to go that way. [00:20:05] Speaker 00: But the translation requirement is in the rule 2.32A9. [00:20:10] Speaker 00: It's a requirement for complete application. [00:20:13] Speaker 00: that any time you have words of foreign origin in an application, the applicant is required to provide a translation for the record. [00:20:22] Speaker 00: The reason we need that is that the public can understand what the scope of the rights being claimed here is. [00:20:28] Speaker 00: What does this term mean in relation to these goods? [00:20:30] Speaker 00: Does it have a meaning? [00:20:32] Speaker 00: And the other reason is then, once the translation is of record, it enables the examining attorney to search properly to figure out [00:20:41] Speaker 00: Should I apply the doctrine of foreign equivalence? [00:20:43] Speaker 00: Do I need to do that here? [00:20:44] Speaker 00: Does this term have descriptive significance? [00:20:47] Speaker 00: Does it have generic significance? [00:20:49] Speaker 00: Is there an English language mark for which I need to cite because it's likely to be confused with this foreign mark? [00:20:55] Speaker 00: So the translation requirement plays a very important role in the agency's ability to properly examine the applications, and it is a requirement of the rule for complete application. [00:21:04] Speaker 00: The appellant here had entered it in two prior applications. [00:21:07] Speaker 00: The examining attorney had [00:21:08] Speaker 00: a dictionary definition from the French-English dictionary, Collins. [00:21:12] Speaker 00: That is a reputable, reliable dictionary. [00:21:15] Speaker 00: All that the appellant came in with was Larousse's French dictionary to French language speakers, not English language speakers, and his own translation of that. [00:21:26] Speaker 00: And even in that translation, there were some translations that relate to icing for pastries and cakes. [00:21:32] Speaker 00: And so the examining attorney said, this is the translation that is relevant for these goods. [00:21:38] Speaker 00: enter it and they decline too. [00:21:41] Speaker 00: So it's different though. [00:21:42] Speaker 00: That is an administrative requirement to have a complete application and the translation as it relates to the actual substantive refusal, the agency here did not rely on the doctrine of foreign equivalence, although I agree with Judge Bryson, we probably could have, because the board has not issued a precedent where it is a combination of English and foreign wording. [00:22:07] Speaker 00: But the TMEP tells examining attorneys, you've got to look at what the nature of that wording is that accompanies the foreign wording. [00:22:13] Speaker 00: I think if it's distinctive wording, they might not apply it, but where it's generic, like the flavor. [00:22:17] Speaker 03: Are you saying that if we don't agree with you on the merits, we should affirm on the failure to provide a translation? [00:22:25] Speaker 00: Yes. [00:22:25] Speaker 03: Well, we couldn't do that under Chenery, could we? [00:22:28] Speaker 00: I think you could, because that's what the board did, too. [00:22:31] Speaker 00: They affirmed that. [00:22:33] Speaker 00: No, no. [00:22:34] Speaker 04: Oh, I'm sorry. [00:22:35] Speaker 04: Did you say the translation? [00:22:36] Speaker 00: Translation. [00:22:37] Speaker 00: Oh, I'm sorry. [00:22:37] Speaker 04: I thought you were saying foreign translation. [00:22:40] Speaker 04: We couldn't affirm on foreign equivalent. [00:22:46] Speaker 04: Because the agency never spoke to that. [00:22:48] Speaker 04: We didn't speak to that. [00:22:49] Speaker 04: And we can't. [00:22:50] Speaker 04: Right. [00:22:51] Speaker 04: But yes, the translation, yes. [00:22:53] Speaker 04: I understand. [00:22:53] Speaker 00: Correct. [00:22:54] Speaker 00: You have the evidence before you, but I don't think we need to go to foreign equivalence doctrine because this evidence shows that in English, these are all English language sources, [00:23:04] Speaker 00: chocolate glissage and glissage itself is used as a reference interchangeably for icing. [00:23:12] Speaker 03: So you're saying the case is a slam dunk because they didn't provide a translation. [00:23:17] Speaker 03: The first issue was moot. [00:23:20] Speaker 00: We could go that way, yes. [00:23:23] Speaker 03: Well, if you want to win, either way, you're saying there's a winner. [00:23:29] Speaker 00: Yes, Your Honor. [00:23:29] Speaker 02: Yeah, but they provided a translation in the other proceeding, right? [00:23:35] Speaker 00: Yes, they did. [00:23:37] Speaker 00: And that's the one that they're refusing to submit here. [00:23:41] Speaker 00: They refused to provide a translation for the record in this case. [00:23:47] Speaker 00: They did provide the translation in two other applications. [00:23:51] Speaker 00: I would just add though, and I don't think you should, but in the unlikely event that you would find fault with the board's decision on the merits here, [00:24:05] Speaker 00: the translation requirement would have to be entered. [00:24:07] Speaker 03: This is an unlikely event. [00:24:10] Speaker 03: You know the data. [00:24:11] Speaker 00: I say that only because this is a fact question. [00:24:13] Speaker 00: There is substantial evidence in this record that is unrebutted. [00:24:17] Speaker 00: I did just want to clarify one thing. [00:24:20] Speaker 00: The appellant has said repeatedly that the board has a rule now from the branded decision that we have to give evidence of the public's exposure to a website that's of foreign origin. [00:24:35] Speaker 00: that is 100% incorrect. [00:24:37] Speaker 00: First of all, branded is not a precedential decision and it contradicts the precedent of this court and the board's manual and the board's own decisions in this area when they say they will give probative value to foreign website evidence. [00:24:51] Speaker 00: And there's basically two criteria. [00:24:52] Speaker 00: It has to be in English and then they look for something that [00:24:56] Speaker 00: Would Americans likely have consulted this site? [00:24:59] Speaker 00: Would they likely have been exposed to it? [00:25:01] Speaker 00: And so the nature of the goods and services can come into play there. [00:25:03] Speaker 00: If it's something that they're looking for information, they're going to consult the site. [00:25:07] Speaker 00: So recently, the board in a precedent in 2017, which was on appeal to this court and recently affirmed not on this specific issue, the board there consulted a Canadian website. [00:25:18] Speaker 00: And they explained that we're going to give this website some weight because we think that people [00:25:26] Speaker 00: looking for these goods and services would consult that website. [00:25:29] Speaker 00: That's exactly the situation that we have here. [00:25:33] Speaker 00: People use the internet to look for information. [00:25:35] Speaker 00: If I want a recipe about something, I'm really not going to a cookbook anymore. [00:25:38] Speaker 00: I'm going to go onto the website and say, hey, I want some chocolate glaze for my cake, chocolate massage. [00:25:45] Speaker 00: And up pops all these things. [00:25:47] Speaker 00: The appellant even put in Google search results that showed some of the references that the examining attorney cited. [00:25:52] Speaker 00: appear in that very first page of hits. [00:25:55] Speaker 00: So we have a good comfort level that people would likely see those references here. [00:26:01] Speaker 00: And I would also submit that even if you wouldn't take any of the foreign ones into account, we have at least seven that are of US origin of those websites and recipes and blogs. [00:26:11] Speaker 00: And that, I think, is really all I have to say unless there's anything else that you have questions about. [00:26:18] Speaker 04: I do have a question. [00:26:19] Speaker 04: And this is circling back to Judge Dyke's original question. [00:26:24] Speaker 04: As a matter of policy, the idea behind generic, the prohibition against generic names for products is, I take it that you just shouldn't be able to advertise yourself as being the source of the thing. [00:26:42] Speaker 04: You can't say, I am the thing. [00:26:45] Speaker 04: My product is the thing. [00:26:47] Speaker 04: Whether it's something that is recognized by everybody, [00:26:52] Speaker 04: is you can't have a restaurant that says food and then keep everybody else from using the word food in connection with restaurants. [00:27:01] Speaker 04: Similarly, I suppose that even a pretty obscure word, as long as it's agreed that it's a name for a thing, you can't use, I'm not sure why it should be necessary that a majority or even a significant number of people would recognize the word, let's say, pleshad, [00:27:20] Speaker 04: for to mean a horse, just the people that happen to speak Russian. [00:27:26] Speaker 04: But why should you be able to appropriate the word horse, even if it's in another language? [00:27:33] Speaker 00: You shouldn't, Your Honor, and I agree with you. [00:27:35] Speaker 04: Why is there any requirement that you have some kind of substantial or considerable number of people that would recognize it as such? [00:27:43] Speaker 00: And that's why I'm sort of struggling with coming up for something with you, because I think there really isn't something in the genericness context. [00:27:50] Speaker 00: even with the doctrine of foreign equivalence, where we're focused on the subset of consumers that speak the language, it's only a substantial composite of that subset that would have to be shown to have this generic understanding. [00:28:05] Speaker 00: So I think it is a very low number. [00:28:08] Speaker 00: If it names the thing, that's exactly the reason why generic terms are not registrable. [00:28:13] Speaker 00: It has to be free for competitors to use. [00:28:15] Speaker 00: I'm sorry. [00:28:16] Speaker 04: Do you have any insight into why the examiner attorney in this case did not [00:28:21] Speaker 04: go to the Doctrine of Foreign Equivalence? [00:28:23] Speaker 00: I don't, but I think it's because they found evidence in English that chocolat glissage means something. [00:28:33] Speaker 00: Sort of like fondant, or you pick sort of a French cooking term. [00:28:41] Speaker 00: It's likely that you will find that in an English language source. [00:28:47] Speaker 00: And so the Doctrine of Foreign Equivalence [00:28:49] Speaker 00: it becomes potentially sometimes a little murky. [00:28:52] Speaker 00: I don't think it would be here, but I think it would be easy. [00:28:55] Speaker 00: I think it was probably just... What would have been murky? [00:28:58] Speaker 00: I mean, how does it get murky? [00:29:00] Speaker 00: I think it is because you have an English word combined with the foreign word, which I submit in this case, it's a generic word for the goods. [00:29:09] Speaker 00: And it's very similar to the French word that you have this whole thing in doctrine of foreign equivalence. [00:29:13] Speaker 00: Would they stop and translate? [00:29:15] Speaker 00: And so if we can't answer that question with confidence, [00:29:20] Speaker 00: They didn't need to go there because it's just a guideline. [00:29:22] Speaker 01: They had the evidence here to make out the case that it signed up Thank you counsel Yes, your honor I would just like to enter for the record two cases that the TTB recently in 2017 and 2018 found in this case we find that foreign materials are very little eventually weight and [00:29:49] Speaker 01: And they specifically wrote that because they are foreign, like cosmopolitan.uk or the Grazia magazine, because they are foreign publication, an applicant did not provide any evidence regarding their circulation in the United States or whether US customers would read these foreign publications. [00:30:09] Speaker 02: You're supposed to put that sort of thing in a 28-J letter if you've come up with new authority so that they have an opportunity to respond to it rather than bring it up in the reply argument. [00:30:19] Speaker 04: Are you going to give us a citation to those two? [00:30:21] Speaker 01: Well, one of them post-date the reply brief, but if you want the citation... That's what 28J is for, post-reply briefs. [00:30:29] Speaker 01: All right, but why don't you at least cite... Well, one of them is called In Ray Denevonik, 2018 Westlaw, 2018 253, April 13, 2018. [00:30:42] Speaker 01: And the other one is called In Ray [00:30:44] Speaker 01: Holland Atkins Ventures, LLC 2017, Westlaw 66, 57, 26, TTAB 2017. [00:30:52] Speaker 01: Okay, thank you. [00:30:54] Speaker 03: And send us a letter on them. [00:30:56] Speaker 01: Thank you. [00:30:57] Speaker 01: Yes. [00:30:57] Speaker 01: And one final thing. [00:30:59] Speaker 01: In regards to the translations that we've offered, when she said that some of them were relevant, at page 19 of our reply brief, we've listed here exactly the definitions that the French people think this word is. [00:31:14] Speaker 01: And in regards to the definition, operations would give the smooth, shiny look to paper. [00:31:19] Speaker 01: Glossage is paper. [00:31:22] Speaker 01: Work, which gives tailoring, which is two layers thick for the French. [00:31:26] Speaker 01: Heating of the meat in the first order to get a surface which includes a thin, shiny layer. [00:31:31] Speaker 01: Cooking of small vegetables in a fat body and sugar. [00:31:35] Speaker 01: Covering of a pastry with fondant. [00:31:38] Speaker 01: So glossage for them in France means this. [00:31:41] Speaker 01: powdering of a mid-course of a pastry with glazing sugar that is then caramelized. [00:31:46] Speaker 01: None of it has anything to do with icing or our goods. [00:31:51] Speaker 01: The last one sounds like it's pretty close. [00:31:55] Speaker 01: It's not. [00:31:55] Speaker 01: This is glaçage and not glacé. [00:31:57] Speaker 01: Glacé is the verb, actually. [00:31:59] Speaker 01: But I understand what Your Honor is saying in regards to that. [00:32:03] Speaker 01: And then finally, in regards to the doctrine of foreign equivalent, I can say that I fought [00:32:08] Speaker 01: with the office in the previous case, which was the one that went up for descriptiveness. [00:32:13] Speaker 01: And we fought for two years and the office withdrew that and conceded the fact that actually the doctrine of equivalent in this case for this mark did not apply. [00:32:22] Speaker 04: And was there a reason given? [00:32:23] Speaker 01: Yes, because we provided all these precedents saying there's no stop and translate. [00:32:28] Speaker 01: There's no significant percentage of the population who knew this word. [00:32:34] Speaker 01: I provided numbers of people who speak French here who could recognize this. [00:32:39] Speaker 01: Thank you. [00:32:41] Speaker 03: Thank you, counsel. [00:32:42] Speaker 03: We'll take the case under advisement.