[00:00:01] Speaker 01:
Good morning, ladies and gentlemen.

[00:00:13] Speaker 01:
Please be seated.

[00:00:23] Speaker 01:
We have three cases on the calendar this morning.

[00:00:27] Speaker 01:
Trademark case from the PPO.

[00:00:29] Speaker 01:
A patent case from a district court and a patent case from the PTO.

[00:00:37] Speaker 01:
Our first case, trademark case, in Le Mosa boutique, 2017-11-29, Mr. Frederick.

[00:01:02] Speaker 00:
May it please the Court.

[00:01:03] Speaker 00:
Good morning, Your Honors.

[00:01:04] Speaker 00:
The general rule applicable in this case is that goods should not be deemed derelated simply because they are sold in the same types of establishments.

[00:01:12] Speaker 01:
Well, it's the same trademark, right?

[00:01:14] Speaker 01:
Same name.

[00:01:15] Speaker 00:
It is, Your Honor.

[00:01:16] Speaker 00:
But that should not be dispositive in the case where the goods and services are unrelated, as the Board has ruled in several, in fact, many of its own opinions.

[00:01:26] Speaker 03:
Is it so binary?

[00:01:28] Speaker 03:
It's either related or it is unrelated, or is there some kind of continuum, perhaps, where we try to make an assessment of the relative relatedness?

[00:01:41] Speaker 00:
In my experience, Your Honor, in the research that we have done, it's fairly binary.

[00:01:45] Speaker 00:
We cited at least seven opinions of the board in our briefing.

[00:01:49] Speaker 03:
I mean, there's a difference between, say, shoes and microprocessors, and then things to perhaps

[00:01:57] Speaker 03:
enhance one's appearance, like clothing or beauty products.

[00:02:02] Speaker 03:
Do you see how the latter is a little bit more related than the former, which is shoes and microprocessors?

[00:02:11] Speaker 00:
Certainly, Your Honor.

[00:02:11] Speaker 00:
And that's part of the issue in this case, is that the USPTO's evidence was simply that these goods are on the same website, full stop.

[00:02:20] Speaker 00:
We didn't get any of that analysis until the board's opinion.

[00:02:24] Speaker 00:
And even their analysis was about 10 words, which says that goods that make you look good are related as long as you can find them on the same website.

[00:02:32] Speaker 00:
And that's not sufficient, particularly in the face of the board's own precedent that these particular goods, clothing on the one hand and beauty supplies on the other, are not per se related outside of the context of fame or desire marks.

[00:02:47] Speaker 00:
And it's very clear.

[00:02:49] Speaker 00:
And this is an ex parte proceeding where it is not appropriate to get into the issues of fame.

[00:02:54] Speaker 00:
That is the purview of an inter-party proceeding.

[00:03:00] Speaker 03:
Are you the one, though, trying to introduce the notion of fame into this ex parte proceeding?

[00:03:05] Speaker 00:
We're not, Your Honor.

[00:03:06] Speaker 00:
Our point with the discussion of fame is simply that the cases that the board and the solicitors in this case are citing

[00:03:13] Speaker 00:
for relatedness of the goods and services all involved inter partes proceedings where fame or designer mark was involved.

[00:03:20] Speaker 00:
And that's simply not the case that we're in.

[00:03:23] Speaker 00:
We're in an ex parte proceeding where it's inappropriate to even get into the matter of fame.

[00:03:29] Speaker 00:
And the board's own precedent is that in these ex parte cases where there is no fame or a designer mark involved, these particular specific goods are not related goods.

[00:03:39] Speaker 03:
I thought part of your argument was that

[00:03:42] Speaker 03:
OK, if it's a famous mark, then it's OK to say that beauty products and clothing are related.

[00:03:51] Speaker 03:
But if the mark is not a famous mark, then you can't say that beauty products and clothing are related.

[00:04:00] Speaker 03:
Was that part of your argument?

[00:04:02] Speaker 03:
It is, Your Honor.

[00:04:04] Speaker 03:
So then the question of relative fame of a given mark is pivotal to your argument?

[00:04:11] Speaker 00:
Correct, Your Honor.

[00:04:13] Speaker 03:
And so you would like us to, I guess, make a ruling that we can only, and the PTO can only consider beauty products and clothing to be related goods when the mark is a famous mark?

[00:04:32] Speaker 00:
Or where the goods are designer goods.

[00:04:34] Speaker 00:
There are courts that hold both ways.

[00:04:36] Speaker 00:
But yes, Your Honor, that is the ruling that we seek from this court.

[00:04:43] Speaker 03:
OK, go on.

[00:04:48] Speaker 00:
So as I mentioned, we cited at least seven different board opinions ruling that clothing on the one hand and beauty supplies on the other are not per se related goods.

[00:04:58] Speaker 00:
One of those cases was non-precedential.

[00:05:01] Speaker 00:
That was in Ray Vedeman's while.

[00:05:02] Speaker 00:
And we spent a little more time discussing that case because the facts of that case are so similar to the current proceeding.

[00:05:08] Speaker 00:
However, there were at least six other board opinions that are

[00:05:13] Speaker 00:
you know, presidential at the board level saying that these goods are not, are not related.

[00:05:20] Speaker 02:
So is there, is there any daylight between not per se related and this case?

[00:05:26] Speaker 02:
That is, is there, did the board really say that they're per se related as opposed to sampling what it found on the web and applying a little bit of common sense and common knowledge and saying,

[00:05:43] Speaker 02:
Well, here they're kind of related enough.

[00:05:47] Speaker 02:
Or is there really nothing that the Board did that would allow it to draw this conclusion or fact-finding, I guess, on the related component or maybe it's the legal significance once you get past the facts?

[00:06:01] Speaker 02:
But is there nothing that the Board did that could support its determination unless it were relying on a per se relation?

[00:06:10] Speaker 00:
I don't believe so, Your Honor.

[00:06:12] Speaker 00:
I mean, the board's ruling in this case is a complete 180 degree turn from the other presidential opinions that we cited, including other ex parte cases like Inray, Jacques Bernier, where at the ex parte level, the board said outside of the context of fame or designer marks, these goods are simply not related.

[00:06:33] Speaker 00:
And in cases like this,

[00:06:35] Speaker 00:
We believe it's more appropriate to allow the mark to publish.

[00:06:38] Speaker 00:
And then if the owner of the cited registration believes that they would be damaged by this registration, then it's appropriate for that registrant to file an opposition or later cancellation proceeding, where they can bring these arguments of fame, causing likelihood of confusion where the goods and services are unrelated.

[00:06:59] Speaker 00:
So as a matter of public policy, we think it's inappropriate for the board

[00:07:05] Speaker 00:
find goods and services on a website, give a minimal amount of analysis, and call it a day.

[00:07:12] Speaker 00:
Their own previous precedent has said that they're unrelated.

[00:07:16] Speaker 00:
In that case, the application should publish and it should be left to the parties in an opposition proceeding.

[00:07:21] Speaker 02:
So if the board had, or I forget, the examiner is the one who collected the website references?

[00:07:33] Speaker 02:
Correct.

[00:07:35] Speaker 02:
What might you have done to, suppose the examiner had said and the board had said, there's a fair bit of indication that for small store operations, and this is, both of these trademarks are about

[00:08:00] Speaker 02:
the services of the small shop, the boutiques, one the medical thing and the other the clothing.

[00:08:09] Speaker 02:
That in that context, it is pretty clear that it's just not very uncommon for those shops to sell a variety of liquid products.

[00:08:24] Speaker 02:
Why should that not be enough?

[00:08:26] Speaker 02:
regardless of whether the shop is known only in South Beach or also worldwide.

[00:08:34] Speaker 00:
Your Honor, I rely on the board's own precedent and rationality in these cases.

[00:08:38] Speaker 00:
For instance, in Inray Jacques Bernier, they said that outside of the context of a famous market designer goods, consumers just don't expect that

[00:08:50] Speaker 00:
the source of these goods and services are going to be related.

[00:08:53] Speaker 00:
Sure, if it's Coach or Chanel or Burberry, they may make this expectation, but outside of that context, consumers simply aren't going to expect the marketing to be related, et cetera.

[00:09:15] Speaker 00:
Boards' only response to these citations was to call Henry Wilde an opposite, despite the fact that one of the members of the board sitting in that opinion also sat on the Henry Wilde board.

[00:09:28] Speaker 00:
And they ignored the rest of the precedent that was cited.

[00:09:31] Speaker 00:
And in this case, the solicitors call Henry Wilde irrelevant and call the other cases irrelevant because they deal with goods and not retail services, as we have in this case.

[00:09:43] Speaker 00:
But there's a Federal Circuit opinion in Ray Hypershops, Ohio, which says that goods and the services selling those goods are related for purposes of likelihood of confusion.

[00:09:55] Speaker 00:
So those cases are directly relevant.

[00:09:58] Speaker 00:
And the board regularly cites that opinion for that proposition.

[00:10:02] Speaker 00:
And even before, in Ray Hypershops used that analysis.

[00:10:08] Speaker 00:
One example being in Ray US Shoe Corp, which is a commonly cited case of the board.

[00:10:14] Speaker 00:
So those cases are directly relevant and were not addressed by the board or the solicitors in briefing this case.

[00:10:22] Speaker 00:
We think that's legal error to dismiss those cases out of hand and call them irrelevant.

[00:10:28] Speaker 02:
So did the board itself address your, was it the wild case or just not?

[00:10:35] Speaker 00:
In a footnote, I believe they called it in opposite.

[00:10:38] Speaker 00:
They addressed sort of the issue of fame generally.

[00:10:42] Speaker 00:
and said that it is not their position that outside of fame these goods are unrelated in the face of their unprecedented.

[00:10:51] Speaker 02:
Oh, I see.

[00:10:51] Speaker 02:
This is the unnamed, non-precedential case that's in app, is it?

[00:10:55] Speaker 00:
Correct, Your Honor.

[00:10:58] Speaker 00:
Which, you know, it is non-precedential, but it's also not worthless.

[00:11:08] Speaker 00:
TMEP says that the board permits the citation of non-precedential final decisions, which are cited for whatever persuasive value that it may have.

[00:11:16] Speaker 00:
And considering the facts in those case were so similar to the facts of this case, I certainly believe it had more persuasive value than a footnote in the board's opinion.

[00:11:28] Speaker 00:
If there are no further questions, I'll reserve the remainder of my time for a while.

[00:11:32] Speaker 01:
We will save it for you.

[00:11:33] Speaker 01:
Excuse me.

[00:11:34] Speaker 01:
Ms.

[00:11:34] Speaker 01:
Walker?

[00:11:44] Speaker 04:
May it please the court.

[00:11:45] Speaker 04:
This case is not about a goods analysis.

[00:11:49] Speaker 04:
This case is about appellant seeking to register the identical store name over a registered store name.

[00:11:58] Speaker 04:
There are no cases that appellant cites and we have not found any that address the exact situation here.

[00:12:06] Speaker 04:
And that is not surprising because as the evidence in this record shows,

[00:12:10] Speaker 04:
when there are identical store names, consumers are likely to believe that they come from the same source.

[00:12:16] Speaker 03:
The evidence in this case specifically... Let me just start with a basic hypothetical.

[00:12:23] Speaker 03:
What if prior registration was MOSA for shoes and the applicant was coming in for MOSA for microprocessors?

[00:12:33] Speaker 03:
So that would be an example where the marks are identical, but the

[00:12:39] Speaker 03:
Relatedness of the goods would very clearly be completely unrelated.

[00:12:44] Speaker 03:
So would the PTO register the new mark under those circumstances?

[00:12:53] Speaker 04:
Yeah, and just to be clear, in the hypothetical you're talking about goods and not store services, is that correct?

[00:12:58] Speaker 04:
Yes.

[00:12:59] Speaker 04:
Yes.

[00:12:59] Speaker 04:
I believe so, and I think that that's reflective in the register here, where there are other third-party MOSA marks for

[00:13:06] Speaker 03:
Right, so that's what it comes down to then, that's why they are pushing so hard on the relatedness question and that it can be pivotal in terms of trying to decide whether to grant the trademark.

[00:13:18] Speaker 04:
Oh, I don't question that the relatedness question is relevant and pivotal to some extent, although keeping in mind that these are identical marks and because they are identical marks, the relatedness isn't necessarily, doesn't need to be quite as close, but

[00:13:34] Speaker 04:
My point is just that what you're comparing here is a store name versus a store name.

[00:13:38] Speaker 04:
And so you're not comparing even the underlying goods.

[00:13:42] Speaker 02:
Change Judge Chen's hypothetical slightly.

[00:13:44] Speaker 02:
So it's the name of the store in the category of stores that sell shoes and the category of stores that sell microprocessor stuff.

[00:13:53] Speaker 04:
I think the outcome is the same.

[00:13:55] Speaker 04:
But again, it's going to depend on the evidence.

[00:13:57] Speaker 04:
And so if you have evidence of stores, and I want to be clear here that the evidence about the stores

[00:14:03] Speaker 04:
is evidence about stores that sell a relatively limited subset of goods, right?

[00:14:08] Speaker 04:
Clothing and beauty type products.

[00:14:09] Speaker 04:
These aren't mega stores.

[00:14:11] Speaker 04:
These aren't department stores.

[00:14:13] Speaker 04:
But leaving that aside, that might be a different case.

[00:14:17] Speaker 04:
I do think that the outcome is probably the same for stores that are limited to microprocessors and stores that are limited to shoes, assuming the evidence doesn't show that those are typically goods that are sold in the same stores.

[00:14:28] Speaker 04:
And just to, I understand, I just wanted to be clear that the stores are a slightly different analysis, in part because when you go into a shopping mall, for example, and you see a store name, such as Mosa, or for example, Gap, and then you may see a Gap body next door, consumers are going to understand that those come from the same store.

[00:14:48] Speaker 04:
So if you see a Mosa clothing store and a Mosa beauty supply store, consumers are going to understand that those are the same, that's the same company

[00:14:57] Speaker 04:
offering both of those stores.

[00:14:59] Speaker 04:
And that's the analysis.

[00:15:00] Speaker 04:
That's the relevant analysis here.

[00:15:01] Speaker 04:
But even if you were to go to the goods, I want to clarify some of the board precedent here.

[00:15:07] Speaker 04:
Because in particular, the wet seal case stands for the exact opposite proposition that appellant has articulated here.

[00:15:14] Speaker 04:
In that case, which is a board precedential decision, the board said the evidence is insufficient to demonstrate a posers' mark as famous.

[00:15:22] Speaker 04:
And then the board went on to say,

[00:15:24] Speaker 04:
that we find the party's goods and services related.

[00:15:27] Speaker 04:
And the services and goods in that case were retail clothing stores versus cosmetic products and fragrances.

[00:15:35] Speaker 04:
So it is just not true that the board has established precedent that these goods and services can never be related.

[00:15:43] Speaker 04:
And again, in Jacques Bernay, which my friend just mentioned, in that case, the board did say there is no per se rule that there's a likelihood of confusion.

[00:15:52] Speaker 04:
between the respective goods.

[00:15:54] Speaker 04:
But they said that in general, the cases in which confusion has been held either involve famous marks or identical marks.

[00:16:03] Speaker 04:
And in this case, we have identical marks.

[00:16:06] Speaker 04:
If there are no further questions.

[00:16:07] Speaker 02:
Can I just ask you, is there any role under the relevant legal standards for consideration of how geographically close

[00:16:21] Speaker 02:
the two stores are.

[00:16:23] Speaker 04:
That could be a relevant consideration in a district court infringement action for registration purposes where you have an unlimited registration that is presumed to cover the full United States.

[00:16:35] Speaker 02:
To give the opportunity for the whole to expand into the whole nation if you choose to want to.

[00:16:43] Speaker 04:
That's right.

[00:16:44] Speaker 04:
I mean, that's the presumption of the registration unless it's limited geographically.

[00:16:48] Speaker 03:
Is there any

[00:16:51] Speaker 03:
discussion going on inside the agency about potentially regularizing the question in front of us here today on relative fame of the mark in terms of trying to understand the relatedness of goods.

[00:17:10] Speaker 03:
I ask that because in spite of your distinctions you want to make, your fine distinctions, there does seem to be a handful of cases not

[00:17:20] Speaker 03:
not controlling on us, as well as board decisions or registrations that seem to be a little bit inconsistent in practice in terms of understanding this question of how much does it matter whether the mark is famous in trying to make an assessment of whether that further biases consumers to be more likely to think that the goods are related versus unrelated.

[00:17:50] Speaker 04:
Well, so on the question of whether it determines whether it's unrelated or related, this court's precedent is clear that the consideration of fame is a separate consideration.

[00:18:02] Speaker 03:
So fame is rather... I'm talking more about inside the agency, right?

[00:18:07] Speaker 03:
Because the other side is going to be able to find registrations that go one way and other denials of registrations.

[00:18:16] Speaker 03:
And then the same thing with board decisions.

[00:18:18] Speaker 03:
So that's why I'm trying to figure out is part of the other side's argument is more the way I see it is there needs to be a uniform practice.

[00:18:30] Speaker 03:
And he's being whipsawed because there's a non-uniform practice going on inside the agency.

[00:18:35] Speaker 04:
Well, I don't know that it's a non-uniform practice.

[00:18:37] Speaker 04:
Again, in the registration context, in the ex parte context,

[00:18:42] Speaker 04:
The PTO doesn't have any ability to measure fame, but we also follow this court's precedent.

[00:18:47] Speaker 04:
And fame is certainly, when it's present, and this court's precedent is clear, that when it's present, it is a very significant factor in the overall likelihood of confusion analysis.

[00:18:56] Speaker 03:
I understand you're talking about the fame factor of our Dupont factors.

[00:19:00] Speaker 03:
I'm talking about in the context of this case, where the other side is trying to promote the idea, based on earlier decisions that, not from this court,

[00:19:11] Speaker 03:
that suggest that the relative fame of a mark will drive consumers' beliefs into whether to believe certain categories of goods are in fact related with each other.

[00:19:25] Speaker 04:
Right.

[00:19:25] Speaker 04:
I mean, again, I don't think that's consistent with this court's precedent, so I'm not quite sure how to answer the question.

[00:19:29] Speaker 04:
But part of that, a lot of those cases that appellants cited, one, are older cases, and two, go to the overall likelihood of confusion analysis.

[00:19:39] Speaker 04:
There were a couple of older cases that said,

[00:19:41] Speaker 04:
there's no per se rule.

[00:19:42] Speaker 04:
And we agree there's no per se rule.

[00:19:45] Speaker 04:
The evidence has to demonstrate it.

[00:19:46] Speaker 04:
And so outside of, you know, we can accept that there's no per se rule.

[00:19:50] Speaker 03:
Maybe you're resisting the premise of my question, which is that perhaps there's some non-uniformity in agency practice.

[00:19:57] Speaker 03:
And if you don't think that, then I understand.

[00:20:00] Speaker 03:
So there wouldn't be necessarily any contemplation of whether

[00:20:04] Speaker 03:
to do something in the TMEP to regularize the practice.

[00:20:08] Speaker 04:
That's right, Your Honor.

[00:20:08] Speaker 04:
I don't think there is any non-uniformity, because all of these questions are factual questions, and they're determined on the evidence before the board.

[00:20:17] Speaker 02:
Am I wrong in thinking that while each of the DuPont factors, or at least each of the two that are relevant here, the similarity here, identity and then relation, are treated as factual matters, but in part because

[00:20:33] Speaker 02:
The word related covers a almost indescribably indefinite amount of territory.

[00:20:41] Speaker 02:
The ultimate standard is likelihood of confusion, and that's not treated as a factual matter.

[00:20:48] Speaker 02:
Isn't that right?

[00:20:49] Speaker 04:
Well, that's true.

[00:20:50] Speaker 04:
Likelihood of confusion is not.

[00:20:51] Speaker 02:
And that's the ultimate standard, isn't it?

[00:20:54] Speaker 04:
That is the ultimate standard.

[00:20:55] Speaker 02:
So obviously there is some relation between the subject matter of these two stores.

[00:21:04] Speaker 02:
But if that relation is of the extremely attenuated sort, then it might not be enough to support what is a legal determination of likelihood of confusion.

[00:21:14] Speaker 02:
And then we're back into the soup of trying to figure out how do we determine what kinds of circumstances support the legal conclusion.

[00:21:26] Speaker 04:
I agree with that.

[00:21:27] Speaker 04:
On a general level, in this case, the only challenge is to the board's relatedness finding.

[00:21:34] Speaker 04:
And the board's relatedness finding is a substantial evidence review.

[00:21:38] Speaker 04:
So that is a factual question.

[00:21:40] Speaker 04:
There's no question, there's no dispute, both that the marks are identical and that the prior mark is strong, that it's arbitrary, and the appellant hasn't contested that.

[00:21:50] Speaker 04:
So the only question here is whether the board's decision was supported by substantial evidence on the relatedness.

[00:21:57] Speaker 03:
Is there case law that says the relative, I don't know, arbitrariness versus suggestiveness of the prior registered mark or of the mark that's identical to the proposed mark lends weight to understanding the relatedness of the goods factor?

[00:22:17] Speaker 04:
There is, and we cited it in our brief.

[00:22:20] Speaker 04:
The closer the marks are,

[00:22:22] Speaker 04:
the less related?

[00:22:24] Speaker 03:
No, I get that in terms of identity of the proposed mark versus the registered mark.

[00:22:29] Speaker 03:
But you also made an additional argument, which is the nature of the mark itself is quite arbitrary in this instance.

[00:22:36] Speaker 03:
Or at least the board made that conclusion.

[00:22:39] Speaker 03:
And because of its total arbitrariness, that should somehow give further weight to the idea that

[00:22:48] Speaker 03:
consumers are going to find these goods to be related.

[00:22:51] Speaker 03:
And I was just wondering, is there case law that actually says that?

[00:22:54] Speaker 04:
I'm not sure that we articulated it quite that way.

[00:22:56] Speaker 04:
What we said is that there's a broader scope of protection.

[00:22:59] Speaker 04:
And so it may be, again, I don't even think that- Well, I'm talking about the board's decision.

[00:23:05] Speaker 03:
Mentioned this, but okay.

[00:23:11] Speaker 04:
Unless the court has any further questions.

[00:23:13] Speaker 01:
Thank you, Ms.

[00:23:14] Speaker 01:
Walker.

[00:23:14] Speaker 01:
Mr. Frederick has some rebuttal time.

[00:23:18] Speaker 01:
Four and a half minutes if you need it.

[00:23:25] Speaker 00:
Your Honor, once again, the solicitor made the allegation that the cases cited are irrelevant because they deal with goods and not services and I won't spend too much time on this, but as I discussed previously, in-rate hyper shops is directly about face with that.

[00:23:42] Speaker 02:
Do you agree with the proposition that for current purposes, geographic proximity of the two stores at issue is irrelevant so that one needs to think about this as though you were walking down the corridor of a mall and you saw both shops?

[00:24:03] Speaker 00:
That is correct, Your Honor.

[00:24:05] Speaker 00:
The registrations are given the full effect of their IDs.

[00:24:09] Speaker 00:
And in this case, the identification of the registration is not limited by geography.

[00:24:13] Speaker 00:
So geography would not be a factor here.

[00:24:16] Speaker 00:
However, Solicitor's Example, once again, of Gap and Gap Body is an example of one of the most famous trademarks there is in the clothing apparel industry.

[00:24:28] Speaker 00:
tape of the grain of salt, the hypotheticals that you're walking in the mall and confusing famous marks.

[00:24:34] Speaker 00:
These are not famous marks, as we have said.

[00:24:37] Speaker 00:
There's no evidence.

[00:24:38] Speaker 02:
But you think no likelihood of confusion if you're walking down the mall and you see Mosa Clothing Boutique and Mosa Skincare Products.

[00:24:52] Speaker 00:
I mean, Your Honor, I think consumers are conditioned to see a wide variety of options.

[00:24:57] Speaker 00:
And if there were two different stores selling different products, I guess as a consumer, I would ask myself why they bother paying rent twice and why not sell them both in the same store.

[00:25:06] Speaker 00:
So it's a valid point, Your Honor.

[00:25:09] Speaker 00:
But again, we're speaking in hypotheticals here.

[00:25:11] Speaker 00:
And the board in its own precedent has said clearly that outside of the context of fame, certainly you would expect Gap and GapBody to be the same source, but not necessarily for

[00:25:21] Speaker 00:
non-famous retailers.

[00:25:26] Speaker 00:
And again, these are not general goods stores, as the point was made.

[00:25:29] Speaker 00:
These are very narrow.

[00:25:31] Speaker 00:
And again, consumers are used to seeing very narrow stores in malls and other outlets, specializing very deeply in one particular area, be it candles or sporting goods or anything else.

[00:25:47] Speaker 00:
And just one final point, the Wetzel case that Solicitor referenced.

[00:25:51] Speaker 00:
We discussed this at length in our reply brief.

[00:25:55] Speaker 00:
And this case is not typical of the other cases that were cited.

[00:25:59] Speaker 00:
First of all, it's an inter partes proceeding.

[00:26:01] Speaker 00:
So there was lots of evidence about fame.

[00:26:03] Speaker 00:
The reason the board didn't find fame was an evidentiary issue.

[00:26:07] Speaker 00:
There were some gaps in the evidence.

[00:26:09] Speaker 00:
And there was also an odd twist in that case where the applicant was actually the senior user.

[00:26:14] Speaker 00:
And it had licensed the mark to the registrant.

[00:26:17] Speaker 00:
So there was also consideration of the relatedness of these parties and who was doing what pursuant to the license agreement.

[00:26:25] Speaker 00:
So that case doesn't really cleanly apply to the case at hand.

[00:26:30] Speaker 00:
Much more applicable are the other cases that were cited.

[00:26:34] Speaker 00:
If there are no further questions.

[00:26:36] Speaker 01:
Thank you, Mr. Frederick.

[00:26:37] Speaker 01:
We'll take the case under advisement.