[00:00:00] Speaker 01: I'm good. [00:00:01] Speaker 01: Okay. [00:00:01] Speaker 01: Seven dash two zero five seven highlight versus hybrid athletics. [00:00:08] Speaker 01: Mr. Rollins, please proceed. [00:00:17] Speaker 00: Good morning, your honors. [00:00:18] Speaker 00: May it please the court. [00:00:19] Speaker 00: My name is Patrick Rollins. [00:00:20] Speaker 00: I represent the appellant highly. [00:00:23] Speaker 00: I'd like to reserve three minutes for rebuttal in the trial below. [00:00:27] Speaker 00: The board excluded opposers' registration. [00:00:29] Speaker 00: So this case is about what common law rights were initially pleaded and subsequently asserted at trial and how the board erred in its consideration. [00:00:38] Speaker 03: You argue that the TTAB compared the wrong marks in conducting its analysis and that the TTAB should have compared the highly marked to the hybrid mark along with the words hybrid athletics and 11 dots below it. [00:00:55] Speaker 03: I'm quoting from the blue brief on that. [00:00:58] Speaker 03: And you say, the record evidence only demonstrates that hybrid athletics use the mark along with the words and dots. [00:01:06] Speaker 03: And again, that's blue brief at 11. [00:01:08] Speaker 03: So I'm 10 and 11. [00:01:09] Speaker 03: But the record shows several photos of athletic apparel displaying the hybrid mark without the words or the dots. [00:01:21] Speaker 03: I can give you JA 337, for example. [00:01:24] Speaker 03: And you know they're in there. [00:01:26] Speaker 03: Given the presence of the hybrid mark on athletic apparel without the words or dots, does your argument that the TTAB compared the wrong marks fail? [00:01:37] Speaker 00: No, it doesn't fail, Your Honor, because each and every instance of a use of the standalone H-only logo on athletic apparel is after applicant's priority date. [00:01:49] Speaker 03: OK. [00:01:49] Speaker 03: Where in the record did you raise this argument? [00:01:51] Speaker 00: We mentioned this in our reply brief. [00:01:54] Speaker 03: OK. [00:01:54] Speaker 03: Give me a second, OK? [00:01:56] Speaker 03: And you can do it on response. [00:01:59] Speaker 00: OK, yes. [00:02:02] Speaker 00: So it's important to note at the outset that there are two separate marks that are evidenced at trial. [00:02:09] Speaker 00: The first is a standalone H-only logo mark, and the second is the posers composite mark, which is the H logo with the words hybrid athletics underneath, and then the 11 dots underneath the words. [00:02:19] Speaker 02: So Counselor, we're looking at a waiver situation here. [00:02:22] Speaker 02: Where did you argue the composite mark? [00:02:25] Speaker 00: Well, we argued the composite mark in our reply brief. [00:02:29] Speaker 00: Your reply brief. [00:02:31] Speaker 00: Yeah. [00:02:33] Speaker 00: And we didn't specifically raise this in our principal brief, but as mentioned by the Beckton Dickinson, the C.R. [00:02:41] Speaker 00: Bard case from this court, if there's a plain error of law, that this court may revisit issues that were passed on in an opening brief. [00:02:50] Speaker 00: And that's the case. [00:02:51] Speaker 03: So you're conceding that you passed on it in your opening brief. [00:02:53] Speaker 00: We did not raise the waiver issue [00:02:55] Speaker 00: Our opening brief, we raised the waiver issue in response to, in our reply brief, in response to the opposer raising the waiver issue. [00:03:04] Speaker 02: I'm not talking about the waiver issue. [00:03:06] Speaker 02: I'm referring to the composite mark. [00:03:07] Speaker 02: Did you make arguments that included hybrid's composite mark, the mark, the H, plus the other markings on there? [00:03:16] Speaker 00: Yes, in our opening brief. [00:03:18] Speaker 00: we referred to that argument where we talked about the fact that the board compared the wrong marks in its initial Dupont analysis. [00:03:32] Speaker 03: Regarding the instances of actual confusion presented by hybrid and the TTIB adopted [00:03:45] Speaker 03: You say there are only instances of temporary confusion that had no effect on purchasing decisions. [00:03:52] Speaker 03: I'm quoting from Blue Brief 22. [00:03:56] Speaker 03: But the confusion of a number of individuals was only dispelled after someone from high lead or hybrid athletics revealed to them that the high lead mark was not associated with hybrid athletics. [00:04:10] Speaker 03: And you agree that's in the record. [00:04:14] Speaker 03: It's at 98283-1172-3801. [00:04:16] Speaker 03: So I assume you agree with that. [00:04:21] Speaker 03: You're nodding, but you have to articulate. [00:04:24] Speaker 03: Yes, it's in the record. [00:04:26] Speaker 03: And one individual purchased High Lead Athletic Apparel and wore it to an event hosted by the founder of hybrid, hoping to please the founder, thinking they were supporting hybrid athletics. [00:04:41] Speaker 03: Why shouldn't we consider those [00:04:43] Speaker 03: instances to represent actual confusion. [00:04:46] Speaker 00: Well, Your Honor, in this case, we don't even get to the actual confusion analysis because the board... But that's not my question. [00:04:53] Speaker 03: They are examples of actual confusion, aren't they? [00:04:56] Speaker 00: Well, no. [00:05:00] Speaker 00: Each one of the examples that were included were addressed in our brief, and we don't believe that they rise to the level of actual confusion. [00:05:08] Speaker 00: Why? [00:05:11] Speaker 03: Why, if somebody buys a shirt and wears it to an event thinking that they're supporting the company holding the event, and it's the wrong shirt with the wrong logo, why isn't that actual confusion? [00:05:28] Speaker 00: Well, if it was actual confusion, the TTAB should not have analyzed that evidence in the first place, because the TTAB made clear error by comparing the- You're not answering my question. [00:05:41] Speaker 03: Why isn't that actual confusion? [00:05:44] Speaker 00: Well, I concede maybe that is actual confusion. [00:05:48] Speaker 00: But the main point is that the TTAB made clear error here when considering the standalone H-only logo in its DuPont analysis. [00:05:56] Speaker 00: There's no evidence in the record of the standalone H-only logo being used prior to applicant's first use date. [00:06:04] Speaker 00: And this is what the Paddington case stands for. [00:06:06] Speaker 00: And Paddington case is a presidential case from the TTAB. [00:06:09] Speaker 00: And the board was bound to follow that case. [00:06:12] Speaker 00: And in looking at the actual evidence of record, the only evidence of use of a logo on athletic apparel prior to applicant's first use date is the composite mark. [00:06:23] Speaker 02: But weren't you arguing from the very beginning that the comparison was between your mark and the standalone hybrid mark? [00:06:32] Speaker 00: That's the legal error that the board made. [00:06:34] Speaker 02: That was your argument, wasn't it? [00:06:37] Speaker 00: Our argument was that the board made legal error by comparing the stand-alone H-only logo to applicant's mark. [00:06:45] Speaker 02: That's the argument you're making now. [00:06:47] Speaker 02: The argument you made below. [00:06:48] Speaker 02: Did you ever argue that the comparison should be made between [00:06:54] Speaker 02: your mark and the composite common law mark of hybrid. [00:06:59] Speaker 00: We did not make that argument below, and the reason we did not make that argument below is because the... Now why isn't that waiver then? [00:07:06] Speaker 00: Now. [00:07:07] Speaker 00: It's not waiver because the board's suesponte raised and considered the common law rights. [00:07:11] Speaker 00: Those common law rights were not asserted. [00:07:13] Speaker 02: I see that, and that may be a problem, but I'm having a bigger problem in that you never raised the argument. [00:07:20] Speaker 00: Yeah, we did not raise that argument in our trial brief. [00:07:22] Speaker 02: Why is that not waiver? [00:07:23] Speaker 02: Forget about what the board ultimately did. [00:07:26] Speaker 02: But why is that not waiver? [00:07:28] Speaker 02: Why should we entertain your argument here today that you didn't make below? [00:07:33] Speaker 00: Well, in this case, both parties were expecting the opposition proceeding at trial to be based on the registrations. [00:07:42] Speaker 00: And Opposer failed to make the registrations of record. [00:07:46] Speaker 00: And so all of the briefing is directed toward [00:07:48] Speaker 00: the registrations. [00:07:50] Speaker 00: And common law rights were not even asserted in the opposers' trial brief. [00:07:55] Speaker 00: So if we look at the opposers' trial brief, there is no assertion of common law rights for apparel goods. [00:08:00] Speaker 00: And so we didn't have an opportunity. [00:08:01] Speaker 02: So once pictures were introduced, and those pictures do show a composite common law right markings, why didn't you raise the argument then? [00:08:10] Speaker 02: I mean, it seems to me that you should have been aware at that point that the parties were proceeding on one basis, [00:08:17] Speaker 02: Now there's evidence before the T-tab that should be addressed. [00:08:22] Speaker 00: Well, that evidence was, in our view, being presented for purposes of priority initially. [00:08:27] Speaker 00: And then once the registrations were discussed, then the priority issue went away because the registrations had a first use date. [00:08:41] Speaker 00: So we didn't argue that the issue with respect to [00:08:45] Speaker 00: With respect to waiver or with respect to the composite mark because of the registration you were aware of the composite mark, correct? [00:08:53] Speaker 02: Yeah, we were aware that the composite mark was I don't understand why you didn't even raise an alternative argument or he just stuck with your single argument That the comparison was between your mark and the standalone H mark of hybrid Yes, those are the issues that were addressed below and [00:09:14] Speaker 00: Those were the issues that were advanced at trial. [00:09:17] Speaker 00: And those were based on the registration, which is only for the... That's the problem. [00:09:21] Speaker 02: Why isn't that waiver? [00:09:23] Speaker 02: If you didn't make the arguments below, then why isn't that waiver? [00:09:30] Speaker 00: Well, the reason it's not waiver is because the opposition proceeding below was proceeding with respect to the registrations. [00:09:37] Speaker 00: And then the registrations were not made of record, and so at trial, [00:09:42] Speaker 00: the TTAB's suisponte raised the common law rights. [00:09:46] Speaker 00: The common law rights were not asserted at trial. [00:09:48] Speaker 00: So we didn't have an opportunity to raise this issue at trial. [00:09:52] Speaker 00: We didn't have an opportunity to dispute that. [00:09:53] Speaker 02: So what's the TTAB to do? [00:09:55] Speaker 02: Are they to base the decision on the arguments that are made by the parties or come up with different arguments? [00:10:04] Speaker 00: Well, the TTAB properly excluded the registrations. [00:10:07] Speaker 00: And so what the TTAB should have done is examine the record to determine if [00:10:12] Speaker 00: if the common law rights had been appropriately pleaded and had been appropriately asserted at trial. [00:10:17] Speaker 02: Correct. [00:10:18] Speaker 02: And the evidence that was before the TTAB at that point showed the composite marking. [00:10:24] Speaker 02: And my question is why, at that point in time, why weren't you alerted to the fact that you had a problem? [00:10:31] Speaker 02: That you had only been addressing the standalone mark and nothing else. [00:10:35] Speaker 00: Well, if you're referring to our trial brief, Your Honor, we didn't have an opportunity to dispute [00:10:40] Speaker 00: The common law rights. [00:10:41] Speaker 01: Can I ask you to turn the appendix page 99, please? [00:10:48] Speaker 00: Yes. [00:10:49] Speaker 00: I didn't have that here at the podium, but I'm not familiar with this page. [00:10:55] Speaker 01: Can I ask you, Appellee, to lend him your copy of the appendix? [00:10:58] Speaker 01: You really shouldn't come to court without appendix, or at least without an electronic way to access it. [00:11:03] Speaker 01: You gave it to us. [00:11:03] Speaker 01: You thought it was important. [00:11:04] Speaker 01: I brought it. [00:11:05] Speaker 00: I apologize, Your Honor. [00:11:08] Speaker 01: Page 99 of the appendix. [00:11:13] Speaker 01: In paragraphs two and three, and we'll focus on paragraph three in particular, this is the notice of opposition. [00:11:20] Speaker 01: Opposer and orders protester adopted the H, now that's not the composite mark, that's just the H by itself, right? [00:11:27] Speaker 00: H only logo. [00:11:27] Speaker 01: Trademark at least as early as August 1st, 2008, and has been using the trademark continuously since that time for the goods and services [00:11:36] Speaker 01: listed in paragraphs one and two. [00:11:41] Speaker 01: Why isn't that putting you on notice of their articulation of their common law mark rights in the H-only logo? [00:11:50] Speaker 00: This does put us on notice, Your Honor, at the pleading stage. [00:11:52] Speaker 00: However, the rights have to be also asserted at trial. [00:11:56] Speaker 00: And so if we contrast this page with appendix 4380 and 4381, [00:12:05] Speaker 00: At those pages, there's a clear contrast between what rights are being pleaded at the initial stage and asserted at the trial stage. [00:12:13] Speaker 00: And in the trial brief, what Opposer says is they set forth their registration for the services. [00:12:19] Speaker 00: They set forth their registration for the apparel goods. [00:12:23] Speaker 00: And then separately, they set forth common law rights with respect to gym equipment. [00:12:27] Speaker 00: But they do not separately set forth any common law rights with respect to athletic apparel. [00:12:33] Speaker 01: What does it say, fitness equipment and athletic apparel? [00:12:35] Speaker 01: In the first sentence at the top of page 4381, can you lend him your other appendix, please? [00:12:46] Speaker 01: 4381, thanks. [00:12:48] Speaker 01: 4382, 4381. [00:12:51] Speaker 01: Those are the exact pages you just told me to reference, correct? [00:12:54] Speaker 01: Yes, yeah. [00:12:55] Speaker 01: So at the top of 4381, doesn't it say the H trademark on fitness equipment and athletic apparel in that parentheses? [00:13:06] Speaker 00: Yes, this is referring to the registration, Your Honor. [00:13:10] Speaker 00: So this is where Opposer asserted the registration for athletic apparel. [00:13:14] Speaker 00: And then below that is the paragraph which addresses the common law rights that were asserted. [00:13:21] Speaker 00: And that's only with respect to gym equipment. [00:13:24] Speaker 01: No, at the top. [00:13:25] Speaker 01: But right above it, it says the application matured into a registration. [00:13:29] Speaker 01: I'm sorry, I'm at the bottom of 380. [00:13:31] Speaker 01: claiming a date of first use in interstate commerce of at least December 31st, 2008. [00:13:37] Speaker 01: And then in parentheses, it says fitness equipment and athletic apparel. [00:13:43] Speaker 01: So they're claiming their first use of this mark, aren't they? [00:13:46] Speaker 00: No, this is merely just, well, this is claiming the first use as set forth in the registration. [00:13:52] Speaker 00: So this paragraph right here is only putting the applicant on notice that they are asserting rights with respect to the registration. [00:14:00] Speaker 00: So they only asserted the registration in the paragraph above for the services. [00:14:04] Speaker 00: And in that paragraph that you're referring to that crosses over at 4380 and 81, that's asserting the registration with respect to apparel goods. [00:14:13] Speaker 03: You argue that the TTAB completely ignored the evidence of a crowded field of similar letter marks, loop 826. [00:14:22] Speaker 03: But the TTAB says, [00:14:24] Speaker 03: Quote, the only evidence you relied on consists of a listing of registrations that were submitted for the first time with your brief and accordingly were not properly of record. [00:14:34] Speaker 03: That's at JA-14. [00:14:36] Speaker 03: Are you attempting to introduce extra record evidence on appeal? [00:14:40] Speaker 00: No, Your Honor. [00:14:40] Speaker 00: We're not trying to do that. [00:14:43] Speaker 03: You abandoned that? [00:14:44] Speaker 01: Yeah. [00:14:44] Speaker 01: Okay, back to 4381. [00:14:46] Speaker 01: So I'm confused. [00:14:48] Speaker 01: You say the paragraph that spans 4380 and 4381 is the paragraph addressing the registration, correct? [00:14:54] Speaker 01: And that's limited to the composite mark. [00:14:56] Speaker 01: Then you say the next paragraph that appears on 4381 is the assertion of common law rights. [00:15:01] Speaker 01: Is that correct? [00:15:01] Speaker 00: For gym equipment, yes. [00:15:02] Speaker 01: No. [00:15:03] Speaker 01: Because it says, in addition to clothing and fitness services, Opposer also uses the trademark on a variety of gym equipment. [00:15:10] Speaker 01: How in the world do I not read that as an assertion [00:15:13] Speaker 01: that this trademark they're talking about in this paragraph, which is just the H alone, not the composite mark, the common law mark. [00:15:20] Speaker 01: How in the world do I read that sentence as not applying it to clothing and fitness services? [00:15:24] Speaker 00: Well, that clause at the beginning is clearly referring to the two paragraphs immediately before, which is referring to the registrations. [00:15:31] Speaker 00: And that clause alone certainly isn't sufficient to put an applicant on notice that they're asserting their common law rights. [00:15:38] Speaker 01: Really, after the notice of opposition clearly asserted common law rights on clothing? [00:15:42] Speaker 01: You think that when the notice of opposition clearly asserts common law rights on clothing, and then when we have this statement in the actual briefing, you don't think you were ever sufficiently put on notice? [00:15:55] Speaker 01: Judge Raina, the difficulty for me is a waiver problem for you, because I actually probably agree with you on the merits that the PTO made a mistake, but I don't think you made the argument. [00:16:03] Speaker 01: And the difference is, I do think you were on notice of it in multiple instances. [00:16:07] Speaker 01: So I don't know what to do with that. [00:16:10] Speaker 00: Well, I say I'm running out of time, so I'll reserve the remainder of my time. [00:16:13] Speaker 00: Absolutely. [00:16:13] Speaker 01: I'll restore some. [00:16:14] Speaker 01: You actually went over your time, so we asked you questions. [00:16:16] Speaker 01: But I'll restore some time for rebuttal. [00:16:38] Speaker 04: May it please the court. [00:16:42] Speaker 04: My name is Michael Cosma from the Whitmer IP Group on behalf of Hybrid Athletics. [00:16:46] Speaker 04: And with me today is Benjamin Lors, an attorney for the firm, and Mr. Orlando, owner of Hybrid Athletics. [00:16:52] Speaker 01: Now, so if the argument wasn't waived, what is your response to whether or not the PTO erred in only comparing the H marks? [00:17:06] Speaker 04: Your Honor, so first, [00:17:08] Speaker 04: Notice of opposition, we asserted, higher athletes asserted common rights. [00:17:11] Speaker 01: No, no, no. [00:17:11] Speaker 01: You're addressing waiver. [00:17:12] Speaker 01: I said assume it wasn't waived. [00:17:15] Speaker 01: So what is your response on the merits to the problem that has been identified in the PTO's analysis? [00:17:21] Speaker 04: So Your Honor, if you look at Appendix 4380, which we were just discussing with High Leads Council, Section 3, statement of the issue before the trial appeal board, it says, the issue presented as opposition is whether the board [00:17:36] Speaker 04: should refuse registration of applicant's mark logo because it so resembles opposers' age trademarks, that when used and registered in connection with applicant's goods, it will likely cause confusion, cause mistake, or deceive pursuant to, and this is where it's important, Section 43A of the Lanham Act, 15 USC 1125A. [00:17:59] Speaker 04: That section is solely common law rights. [00:18:01] Speaker 04: 1114 covers likely of confusion under [00:18:06] Speaker 04: under registered rights. [00:18:08] Speaker 04: So the reason this wasn't in our briefs is because on replies, Rob, for the first time, there was no sua sponte. [00:18:16] Speaker 04: This was not addressed sua sponte by the board. [00:18:18] Speaker 04: The sole statement of issue hybrid put forth to the board was common law rights under 1125. [00:18:24] Speaker 02: Was any part of the board's decision based on the common law rights? [00:18:29] Speaker 04: I'm sorry, Your Honor. [00:18:30] Speaker 02: Was any part of the board's decision based on the composite common law markings of hybrids' mark? [00:18:37] Speaker 04: No. [00:18:38] Speaker 04: The board's decision was on the record evidence. [00:18:41] Speaker 02: But the record evidence has pictures. [00:18:44] Speaker 02: And those pictures include the 11 stars or whatever that is. [00:18:48] Speaker 02: Includes the common law composite marking. [00:18:52] Speaker 02: Correct? [00:18:53] Speaker 04: Correct. [00:18:53] Speaker 02: So there's evidence before the board that shows the common law composite markings [00:19:01] Speaker 02: And I'm being told now that the board ignored that evidence. [00:19:08] Speaker 02: How do I know that the board did not make its decision based on the common law markings? [00:19:13] Speaker 04: The board did not ignore the evidence. [00:19:15] Speaker 02: But how do I know that? [00:19:17] Speaker 02: How do I know that? [00:19:18] Speaker 02: How do I know that the board did not realize? [00:19:21] Speaker 02: And I'm saying that because the evidence before the board does include those markings. [00:19:25] Speaker 04: Well, so the evidence before the board, we had apparel. [00:19:30] Speaker 04: We had fitness services, and there was fitness equipment. [00:19:34] Speaker 04: 2008, in our trial brief, hybrid proved a priority date for fitness services and apparel, going back to 2008. [00:19:44] Speaker 04: If you look at the evidence on appeal and the testimony, the trial testimony, the fitness services, Mr. Orlando, he would [00:19:57] Speaker 04: He would advertise his apparel and his services on videos online. [00:20:01] Speaker 04: And in those videos, if you look at them, he would regularly work out in front of the broad hybrid H in the background of all his videos. [00:20:09] Speaker 04: That is not the common law H with hybrid athletics and 11 dots. [00:20:13] Speaker 02: Look at appendix 12. [00:20:25] Speaker 02: Yes, Your Honor. [00:20:27] Speaker 02: five pictures here. [00:20:29] Speaker 02: All of them show the composite common law mark of hybrid. [00:20:37] Speaker 02: Was this picture part of the evidence? [00:20:40] Speaker 04: Yes, Your Honor. [00:20:41] Speaker 04: This is part of the evidence I was put in. [00:20:42] Speaker 02: Okay, so there's evidence before the board of the composite common law marking, correct? [00:20:50] Speaker 04: Yes. [00:20:51] Speaker 02: So how do we know that the [00:20:54] Speaker 02: that the board did not base its decision. [00:20:56] Speaker 02: It either ignored evidence before it or relied on evidence that was before it. [00:21:03] Speaker 02: And either way, it seems to be a problem. [00:21:06] Speaker 04: Well, Your Honor, we're looking for substantial evidence on appeal. [00:21:10] Speaker 04: And on appeal here, we have the apparel arguments or the apparel with H hybrid athletics under it and 11 dots. [00:21:16] Speaker 04: We also have evidence of common law use in relation to the fitness services that Mr. Orlando provided [00:21:22] Speaker 04: going back to 2008, where he'd advertise his fitness services while he would post videos in his gym and pictures with just the H, not hybrid athletics under it. [00:21:34] Speaker 04: And then if we look at, for instance, other evidence on appeal before the board, some of these videos are, for instance, appendix 3881. [00:21:47] Speaker 04: This would be Mr. Orlando working out in front of the H. [00:21:52] Speaker 04: And then he'd post these videos, and that video would advertise his services. [00:21:58] Speaker 04: And then other ones, for instance, before the priority date of highly, or before use of highly, Neutral Nando's website, appendix 4259. [00:22:10] Speaker 01: Well, but there are arguments, unless I misunderstand it, and I may. [00:22:14] Speaker 01: is that you did use the H alone on fitness services, but you didn't use the H alone on clothing, or at least there's no evidence that you were asserting in this trial that the H alone, as opposed to the composite mark, was used on clothing. [00:22:28] Speaker 01: And so I don't think that 3881, which I have open, saves you from that argument. [00:22:33] Speaker 01: Because for common law, you agree, don't you, for common law rights, [00:22:39] Speaker 01: that you only get rights on the actual types of goods that you use the mark on. [00:22:44] Speaker 01: And so I don't see any evidence in this record of use on clothing of the H alone for common law rights to be attached. [00:22:51] Speaker 01: Is there anything I'm missing? [00:22:52] Speaker 01: Is there something you can point me to, prior to the date at issue? [00:22:56] Speaker 04: Yes, Your Honor. [00:22:57] Speaker 04: So now if we look at, there's a picture of hybrid athletics website, and this is appendix 4228. [00:23:05] Speaker 04: Now, the use of a trademark, [00:23:07] Speaker 04: It doesn't have to be on the goods. [00:23:09] Speaker 04: It could also be in relation to the selling of the goods. [00:23:12] Speaker 04: And if we look at appendix 4228, here's the hybrid athletics website. [00:23:27] Speaker 04: So here, and this is before Hylete's use, on the top of the website, it displays the H on the left. [00:23:35] Speaker 04: And on the right, it says hybrid athletics. [00:23:36] Speaker 04: And then it has 11 dots under that, hybrid athletics. [00:23:39] Speaker 04: It's not the same use that Hylate Mealy Ports do. [00:23:43] Speaker 04: Then it goes on. [00:23:44] Speaker 04: We see we have the services. [00:23:45] Speaker 04: We have workout of the day. [00:23:46] Speaker 04: And then we have the hybrid store. [00:23:49] Speaker 04: And that's a link on the top. [00:23:51] Speaker 04: And if you see on the bottom or on the right-hand side, you have shop hybrid. [00:23:55] Speaker 04: And here, you have a picture of just the H with the hybrid stone molds. [00:23:59] Speaker 04: You have the equipment underneath with the H. And it goes down. [00:24:03] Speaker 04: It goes to now the shirts. [00:24:06] Speaker 04: So the trademarks being used in every way. [00:24:09] Speaker 04: It's being used the H on the left of hybrid athletics. [00:24:13] Speaker 04: It's being used the H alone, and it's being used in the stacked style. [00:24:18] Speaker 03: Do you have a better picture of that shirt? [00:24:20] Speaker 03: Are you asserting that the shirt is the H alone? [00:24:24] Speaker 04: I'm not, Your Honor. [00:24:25] Speaker 04: What I'm saying is the trademarks being used [00:24:29] Speaker 04: This website is advertising services, apparel, equipment. [00:24:34] Speaker 04: It's advertising all three. [00:24:35] Speaker 04: So it's showing the trademark is being used on the website in three different ways that we can see just here. [00:24:43] Speaker 04: We see the H on the left of hybrid athletics. [00:24:46] Speaker 04: H is standing by itself, and then on the right is hybrid athletics. [00:24:48] Speaker 04: Then you have the H by itself, and then you're looking at on the equipment. [00:24:53] Speaker 04: But under that, you do have the stacked H on the clothes. [00:24:57] Speaker 04: But it's being used in multiple different ways. [00:25:00] Speaker 03: The what age? [00:25:01] Speaker 04: The age of standing by itself. [00:25:05] Speaker 03: The age on the clothes is what? [00:25:09] Speaker 03: Is it an age alone, or is it? [00:25:10] Speaker 04: No, it's the stacked version, the age above hydro-athletics, Your Honor. [00:25:17] Speaker 04: However, it's showing multiple uses. [00:25:19] Speaker 04: And then if you look at the trial testimony or the actual confusion, for instance, Jason Layden, when he testified of his confusion, [00:25:27] Speaker 04: He received the highly goods. [00:25:29] Speaker 04: He testified that I saw the highly H. He pointed to the H as deposition if you look at the exhibit. [00:25:36] Speaker 04: And then he said I was confused with hybrid athletics H. No one testified it or confused. [00:25:42] Speaker 04: No testimony that was reliant on by the board was regarding to the common law stack H. People knew that the H alone functioned as a trademark. [00:25:50] Speaker 04: So if you look at how a trademark functions, it's what does the consumer see? [00:25:54] Speaker 04: If you look at our testimony, or the hybrid athletics testimony, people associate the age, the hybrid athletics age, with hybrid athletics. [00:26:03] Speaker 03: Yeah, there was plenty in there. [00:26:05] Speaker 03: That part, yeah. [00:26:07] Speaker 04: So it's in the eyes of the consumer. [00:26:10] Speaker 04: And so the trademark, the age functions as a trademark by itself. [00:26:14] Speaker 04: Regardless of whether the age is above the hybrid athletics or how it's shown on apparel, it's in the eyes of the consumer. [00:26:21] Speaker 04: And we have the evidence of the age being [00:26:24] Speaker 04: of being in the eyes of the consumer as identifying with hybrid athletics. [00:26:29] Speaker 04: We also have the equipment. [00:26:31] Speaker 04: And if you look at the equipment, Mr. Orlando sells stone molds that are used in strongman portions of CrossFit. [00:26:39] Speaker 04: They sell to gyms across the country, and the gyms make their stones. [00:26:43] Speaker 04: And we have testimony that if you travel around the country and walk into a CrossFit gym, you will see Mr. Orlando's stones. [00:26:50] Speaker 04: And if you look at the pictures of the stone, the hybrid age is [00:26:53] Speaker 04: predominantly on the top of the stone. [00:26:55] Speaker 04: So every time someone uses one, they see the hybrid H. The H by itself functions as a trademark. [00:27:02] Speaker 04: It's used as a trademark. [00:27:03] Speaker 04: If we look at just the website as one example, it's used in many different ways. [00:27:08] Speaker 04: It's used in a website as well. [00:27:11] Speaker 04: It's used for the equipment here. [00:27:12] Speaker 04: The H by itself, it's used next to the, when someone's shopping for the apparel, you're seeing equipment in apparel. [00:27:21] Speaker 04: And the H is being used in many different ways that function as a trademark. [00:27:26] Speaker 01: I'd like to also move on to- But the board didn't make any fact findings, right? [00:27:30] Speaker 01: How something is being used or functioning as a trademark. [00:27:33] Speaker 01: And we can't do that on appeal. [00:27:34] Speaker 01: The board didn't make those fact findings that you're stating right now. [00:27:37] Speaker 01: You're telling me I should feel confident or comfortable with the board's decision for all these reasons that the board didn't articulate. [00:27:43] Speaker 01: And all those reasons sound like fact findings to me. [00:27:45] Speaker 01: And I don't get to do that on appeal. [00:27:47] Speaker 04: I agree, Your Honor. [00:27:48] Speaker 04: I'm pointing to substantial evidence. [00:27:49] Speaker 04: I'm pointing to evidence that was before the board. [00:27:51] Speaker 01: But the board didn't cite any of that evidence or make any of those fact findings about how a particular trademark was being used. [00:27:58] Speaker 04: It is on the record, and it was relied on to the board. [00:28:01] Speaker 03: Where in the board's decision does it have anything that supports your argument that they're relying on the valid testimony of confusion, for example? [00:28:21] Speaker 04: I'm sorry, Your Honor. [00:28:23] Speaker 03: Where do they say we're relying on that evidence? [00:28:27] Speaker 04: On the evidence I just showed you today? [00:28:30] Speaker 04: It is on the record in appeal. [00:28:31] Speaker 04: I understand. [00:28:33] Speaker 04: Yeah, it's not specifically cited. [00:28:34] Speaker 04: I agree, Your Honor. [00:28:36] Speaker 04: But this was before the board. [00:28:38] Speaker 04: It was in the testimony cited by the board. [00:28:41] Speaker 04: Each of the deponents, the trial testimony was they were shown just the age, and they identified it with hyperathletics. [00:28:50] Speaker 03: I understand that's not what we're asking. [00:28:56] Speaker 03: I suppose your argument is we can look at what the board could rely on because it's evidence of record. [00:29:03] Speaker 04: Just correct your honor, it's substantial evidence. [00:29:07] Speaker 02: But there's also evidence in the record of the composite mortgage. [00:29:11] Speaker 02: Isn't that substantial evidence too, or why is that not substantial evidence? [00:29:15] Speaker 04: There is no evidence on record that that is [00:29:18] Speaker 04: that together function as a trademark by itself. [00:29:21] Speaker 04: Highly points to no evidence. [00:29:22] Speaker 04: This is all attorney argument for the first time on appeal that the composite mark functions as a trademark together. [00:29:28] Speaker 04: There's no evidence that that's the trademark. [00:29:31] Speaker 01: Well, isn't that your registration? [00:29:33] Speaker 01: Don't you have a registration on the composite mark? [00:29:35] Speaker 04: No, we do not. [00:29:36] Speaker 01: OK, you don't have a registration. [00:29:37] Speaker 04: No, the registration is on just the H, and there's a registration of hybrid athletics. [00:29:43] Speaker 04: But like I said, the H. Do you own the registration? [00:29:47] Speaker 04: Yes, Your Honor, hybrid athletics owns a registration, but the registrations were not relied on. [00:29:54] Speaker 04: In the statement of issue, it's only common law rights. [00:29:56] Speaker 04: In the statement of facts, we discussed the registrations, and the board correctly pointed out that they were not of evidence, but that was not relied on. [00:30:04] Speaker 04: It was just in the facts section, not in the statement of issue, and it was discussed. [00:30:09] Speaker 04: And then what's important is if we were not relying on common law rights, we were relying on [00:30:15] Speaker 04: the registration solely, we wouldn't have to prove priority. [00:30:18] Speaker 04: If you look through our briefs, we proved priority for each piece for apparel, fitness services, and equipment. [00:30:26] Speaker 04: And the reason we did that, because it was common law rights we were relying on. [00:30:29] Speaker 04: And now there's sections of the brief that are not. [00:30:31] Speaker 02: So I'm still kind of confusing. [00:30:33] Speaker 02: You need to help clarify this. [00:30:35] Speaker 02: Did the board or not make any part of its decision on the common law composite mark? [00:30:44] Speaker 04: No, Your Honor, the board's decision solely discusses the H. Now, the board did point to apparel, for instance. [00:30:53] Speaker 04: And if you look at that apparel, it does have the stack mark. [00:30:56] Speaker 02: So did the board consider the, did it consider or did it not consider the composite common law mark? [00:31:05] Speaker 04: It did consider it. [00:31:06] Speaker 02: So it was part of its decision. [00:31:09] Speaker 02: It did consider it. [00:31:10] Speaker 04: Yes. [00:31:11] Speaker 04: It's considering it solely for the age, is what you're saying. [00:31:13] Speaker 04: Yes, the board looked at the facts, looked at all the evidence, and when weighing the facts... How do we know that? [00:31:19] Speaker 02: Where does a board say, I'm not looking at anything else, I'm just looking at the age? [00:31:23] Speaker 04: Well, that's the whole board's analysis is on the age. [00:31:26] Speaker 04: Now, if it was before the board, and this is where the waiver issue comes in, we would know. [00:31:30] Speaker 03: I see what you're saying. [00:31:31] Speaker 03: So what you're saying is that the common law mark that you assert is the age, and the fact that there's anything else surrounding the age [00:31:41] Speaker 03: is irrelevant to the board because you're only asserting the age. [00:31:44] Speaker 04: That's correct, Your Honor. [00:31:45] Speaker 04: And then on appeal for the first time, this common law comes up, which was on. [00:31:52] Speaker 02: Why doesn't the evidence or the record, though, go contrary to that assertion? [00:31:57] Speaker 02: I mean, so you have a party saying consider only the age, but yet there's pictures and there's evidence that shows that the common law mark that's being used is more than just an age. [00:32:09] Speaker 04: So the evidence is more than just [00:32:11] Speaker 04: because we have all the testimony evidence of what the consumer sees. [00:32:15] Speaker 04: So when people are testifying on their confusion or the facts surrounding certain circumstances, they identify just the H as the trademark. [00:32:24] Speaker 04: And that's the evidence. [00:32:25] Speaker 04: Now, if you look at the apparel, there is that the H is on top of hybrid athletics, but there's no evidence that that function as a trademark together. [00:32:34] Speaker 04: Highly put, no evidence forward that that complete image is the trademark. [00:32:38] Speaker 04: There is no [00:32:39] Speaker 02: In a situation like that, isn't there a case law that says that the board should consider the mark in its entirety? [00:32:48] Speaker 04: The board did consider the mark in its entirety. [00:32:50] Speaker 02: It's cited to the... But not with respect to the common law, composite marking. [00:32:55] Speaker 04: There's no evidence that the board didn't consider that. [00:32:58] Speaker 04: The evidence is that the board did consider it. [00:33:00] Speaker 04: It's cited to the uses. [00:33:04] Speaker 04: It's cited to the equipment use. [00:33:05] Speaker 04: is cited to the fitness services use and the apparel use. [00:33:08] Speaker 04: And in taking that evidence and weighing that evidence, it came to its conclusion that there was a likelihood of confusion. [00:33:15] Speaker 01: All right. [00:33:16] Speaker 01: OK, well, we're out of time. [00:33:17] Speaker 01: I'm going to restore a minute and a half of time for rebuttal, because we went about a minute and a half over with you. [00:33:23] Speaker 01: So let's restore that and give him a little rebuttal time. [00:33:27] Speaker 00: OK, thank you, Your Honor. [00:33:28] Speaker 00: I'll be brief. [00:33:29] Speaker 00: I do, in fact, have a copy of the appendix in electronic form. [00:33:31] Speaker 00: So I just wanted to mention that. [00:33:35] Speaker 00: First of all, we know that Opposer did not assert the common law rights because Opposer admitted this in its brief to this court. [00:33:43] Speaker 00: And I would point to the Opposer's brief both on page 14 and again on page 20, where, in paraphrase, the Opposer says that the board proceedings were never about common law rights. [00:33:55] Speaker 00: And that's what Opposer said in its brief to this court. [00:33:57] Speaker 00: So we know that Opposer did not assert its common law rights at trial. [00:34:01] Speaker 03: Where are you citing, Tim? [00:34:03] Speaker 00: I'm citing two opposers' briefs, page 14 and page 20, where the opposer says that the board proceedings were never about common law rights. [00:34:14] Speaker 00: And then with respect to the dissecting of the common law mark, of the composite mark, it would be legal error for the board below to dissect the composite mark and excise out only the stand-alone, the H-only logo. [00:34:31] Speaker 00: and then proceed with this stupont analysis based on a dissected mark. [00:34:36] Speaker 01: So you're saying on page, the thing you're saying about on page 20 is where they actually assert the opposition below was never about hybrid's use of a composite common law mark. [00:34:45] Speaker 01: Is that what you're talking about? [00:34:47] Speaker 00: Yes. [00:34:47] Speaker 00: And also on page 14. [00:34:49] Speaker 03: What about the next sentence on 14? [00:34:52] Speaker 03: Accordingly, not only does substantial evidence support the board finding that hybrid has common law rights in the eighth grade month, [00:35:00] Speaker 00: Well, of course, they're going to argue that in this brief. [00:35:03] Speaker 00: But the important part is the admission that the trial... No. [00:35:08] Speaker 00: Yes, because it goes to the intent of the opposer in setting forth what rights it was asserting at trial. [00:35:17] Speaker 00: And this is an admission that opposer did not assert its common law rights at trial. [00:35:23] Speaker 00: And it's clear that the board committed legal error here. [00:35:29] Speaker 00: in its analysis and by raising and then considering the waived common law rights. [00:35:37] Speaker 03: Go to page 14. [00:35:42] Speaker 03: Who do you represent? [00:35:44] Speaker 00: Hailead. [00:35:44] Speaker 03: Okay. [00:35:46] Speaker 03: Read from what you're reading. [00:35:50] Speaker 00: One second, Your Honor. [00:35:51] Speaker 00: I can bring up that document. [00:35:53] Speaker 03: Do that. [00:35:59] Speaker 02: You don't have a copy of your brief either, Council? [00:36:01] Speaker 00: I do. [00:36:01] Speaker 03: I have it all here, but I'm going to... Go to the last full paragraph on that page. [00:36:10] Speaker 03: Your opposing council put it in front of you. [00:36:15] Speaker 00: Yes, I have it. [00:36:16] Speaker 03: All right. [00:36:19] Speaker 03: What's it say? [00:36:20] Speaker 03: Highly never raised this issue with the board. [00:36:25] Speaker 03: highly never contested hybrids common law trademark rights. [00:36:32] Speaker 03: The board's proceedings were never about the extent of hybrids common law rights or whether the logo was confusingly similar. [00:36:44] Speaker 03: They're saying you didn't assert it. [00:36:46] Speaker 00: Well, we didn't assert it because it wasn't asserted by them, right? [00:36:49] Speaker 03: Yes, it was. [00:36:50] Speaker 03: It's in their initial pleading. [00:36:52] Speaker 00: In the pleading, but the pleading has to be [00:36:54] Speaker 00: Combined with the trial brief right so it's very It's clear that an Opposer can plead rights and then waive those rights This is the alcatraz cases is precisely what it stands for is that if if if rights are pleaded But they're not asserted at trial then those rights are waived Okay Anything further I thank the council for their argument this case is taken under submission all right. [00:37:17] Speaker 00: Thank you very much