[00:00:38] Speaker 03: The next case is Wuhan-Keta Marble Protective Materials v. Tenax, S.P.A., 2018-1900. [00:00:47] Speaker 03: Mr. Hines. [00:00:50] Speaker 03: Hines. [00:00:54] Speaker 02: May it please the Court, I am Jay Hines with the firm Muncie Geisler, Olds & Low, representing Appellant Wuhan-Keta, a limited company of China. [00:01:03] Speaker 02: In this appeal from a consolidated decision of the Trademark Trial and Appeal Board, [00:01:07] Speaker 02: in two opposition proceedings involving three applications for the Martini Act. [00:01:12] Speaker 02: Opposer appellee herein is 10X, SPA, a joint stock company of Italy, relying on two prior registrations for 10X. [00:01:23] Speaker 02: The board found a likelihood of confusion pursuant to the predecessor court's controlling in Ray E.I. [00:01:30] Speaker 02: DuPont ruling of 1973 [00:01:34] Speaker 02: holding that four DuPont factors favor 10X, the similarity of the marks, the similarity of the goods, overlapping trade generals, and class of purchasers. [00:01:43] Speaker 03: Well, those things are pretty clear. [00:01:45] Speaker 03: 10X and 10X certainly sound and look alike. [00:01:51] Speaker 03: And therefore, similar materials. [00:01:55] Speaker 03: How can you refute that? [00:02:00] Speaker 02: Well, Your Honor, this court in Stonecore Group versus Specialty Codings in 2014 held that the board should not make up its own rules regarding pronunciation of marks. [00:02:15] Speaker 02: In that case, the mark was Stone Shield without the E between Stone and Shield, and the board held that that O should be short, pronounced Ston Shield. [00:02:27] Speaker 02: The court held the board's pronunciation analysis was not supported by substantial evidence. [00:02:33] Speaker 02: I think we have a comparable situation herein, because the board felt that consumers were likely to pronounce the first syllable of wuhan katas and 10x's with a long e sound, and that consumers could easily overlook the letter i in applicant's mark and not articulate it as a long e. [00:02:57] Speaker 02: This, again, ignores the ordinary rules of English and such words with the IA vowel combination, such as cardiac, zodiac, maniac, braniac, celiac, et cetera. [00:03:12] Speaker 03: Entiniacs. [00:03:14] Speaker 03: Entiniacs. [00:03:16] Speaker 02: Entiniacs. [00:03:20] Speaker 02: The board's ruling as to the visual similarities in construction of the marks likewise favors the consonants over the vowels, [00:03:27] Speaker 00: Again, holding that consumers could easily overlook the additional E and the additional I. What is our standard of review for that particular issue, namely whether visually consumers would see the marks as substantially similar or not? [00:03:49] Speaker 02: If I heard you correctly, [00:03:52] Speaker 00: What's our standard of review of the PTO's decision that consumers would visually see the marks as similar? [00:04:03] Speaker 02: It's a preponderance of the evidence standard. [00:04:06] Speaker 00: No, that's for them. [00:04:08] Speaker 00: What is it for us? [00:04:09] Speaker 00: Substantial evidence. [00:04:11] Speaker 00: I think that's your problem. [00:04:12] Speaker 00: You're arguing to this court as though we have the right to decide by a preponderance of the evidence whether you're right or they're right. [00:04:19] Speaker 00: but that's not what we as the appellate court do. [00:04:22] Speaker 00: That's what the board did. [00:04:25] Speaker 00: But now we have to review what they did for substantial evidence, which is an extremely deferential standard. [00:04:30] Speaker 00: So it's not good enough for you to tell me why you think I should [00:04:35] Speaker 00: see it differently than the board did. [00:04:37] Speaker 00: You have to prove a much more deferential standard, and that's, to me, where you're coming up short. [00:04:44] Speaker 00: I mean, I'll tell you, I agree completely with you on the pronunciation. [00:04:46] Speaker 00: I don't see that gets you anywhere. [00:04:48] Speaker 00: Ultimately, I don't see that that changes the outcome. [00:04:51] Speaker 00: For me, teeny acts, maybe it's because I have teenagers, but I see the word teen, 10 acts, 10. [00:04:57] Speaker 00: It's a number. [00:04:57] Speaker 00: I see the word 10. [00:04:59] Speaker 00: I probably can't imagine making the mistake the boards and customers might make. [00:05:05] Speaker 00: When it comes to visual, these are fanciful words. [00:05:07] Speaker 00: Neither of them mean anything. [00:05:09] Speaker 00: Why in the world do you have to adopt a mark so close to theirs? [00:05:11] Speaker 00: In adhesives and glues, I mean, there's something about these words that makes sense to me. [00:05:18] Speaker 00: So your standard of review is substantial evidence. [00:05:21] Speaker 00: So you can't just tell us that you don't think they look similar or that we shouldn't think they do. [00:05:25] Speaker 00: You have to tell us why it was really unreasonable for the board to conclude that they did. [00:05:34] Speaker 02: can see that both marks are arbitrary or coined. [00:05:41] Speaker 02: So they don't have any meaning with respect to the respective goods. [00:05:46] Speaker 02: But no meaning does not really equate to no commercial impression. [00:05:54] Speaker 02: Every mark has a commercial impression. [00:05:57] Speaker 02: And our view is that there's sufficient differences between these respective marks. [00:06:05] Speaker 02: that there's no potential for confusion in the marketplace. [00:06:09] Speaker 02: We also believe that the board should have considered the sophistication of purchasers here. [00:06:17] Speaker 02: These are industrial and commercial products. [00:06:22] Speaker 02: They're not sold to general consumers. [00:06:25] Speaker 02: They're purchased by manufacturers of further products or providers of certain services. [00:06:34] Speaker 02: from sources they know and trust. [00:06:37] Speaker 00: But the opposing counsel, I think that I understand their argument to me. [00:06:41] Speaker 00: You didn't raise this below. [00:06:42] Speaker 00: And in fact, Wuhan responded to the interrogatory regarding customer sophistication that it was, quote, not applicable. [00:06:50] Speaker 00: So if you didn't make that argument below, how is that a basis for us to vacate the lower court's decision on appeal? [00:07:05] Speaker 02: Well, I, again, would have to concede that this wasn't addressed below. [00:07:09] Speaker 03: As Judge Moore pointed out, the test is substantial evidence. [00:07:16] Speaker 03: And you have to show that there was no reasonable basis on which the board could have made the decision it did. [00:07:28] Speaker 03: And the sounds and the names certainly look similar, and they're in the same field. [00:07:35] Speaker 03: So you're just arguing they should have done something different. [00:07:44] Speaker 02: Yes. [00:07:44] Speaker 02: Yes. [00:07:45] Speaker 02: I think the same is true as to the lack of any evidence of actual confusion. [00:07:53] Speaker 02: I think the board needs to take into consideration all of the facts it has before us. [00:07:59] Speaker 02: Here we have nearly 15 years of coexistence in multiple jurisdictions throughout the world. [00:08:05] Speaker 02: with the Apple League not claiming a single instance where someone was confused as to the source of the goods. [00:08:19] Speaker 03: The board went through the DuPont factors. [00:08:23] Speaker 03: And as I recall, I don't think they found any in your favor. [00:08:29] Speaker 03: They found many of them neutral and several of them [00:08:33] Speaker 03: in favor of the likelihood of confusion. [00:08:36] Speaker 03: So it balanced out its analysis in favor of likelihood of confusion. [00:08:52] Speaker 02: Well, again, if you look at it from the viewpoint of the appellant, they prepared [00:09:02] Speaker 02: prevailed in multiple foreign oppositions in other countries. [00:09:09] Speaker 02: The cases that the board relied on to deem that irrelevant had to do with Paris Convention claims because of ownership of foreign registrations. [00:09:23] Speaker 02: They had nothing to do with foreign oppositions. [00:09:28] Speaker 02: From the appellant's viewpoint, they don't understand why, after prevailing, [00:09:33] Speaker 02: in now, I believe, eight jurisdictions in foreign countries under very similar likelihood of confusion analysis. [00:09:41] Speaker 02: Why the board? [00:09:42] Speaker 03: Of course, the board isn't found by foreign determinations. [00:09:46] Speaker 03: Foreign determinations may be based on different language, different usage. [00:09:54] Speaker 02: I'm sorry. [00:09:55] Speaker 02: I didn't quite hear you, Your Honor. [00:09:56] Speaker 03: The board does not rely on foreign determinations, presumably because [00:10:03] Speaker 03: Foreign languages are different and foreign usage is different. [00:10:12] Speaker 02: But these proceedings had to do with the same marks as herein and under very similar standards. [00:10:22] Speaker 00: Yes, but let me give you a for example with regard to what Judge Laurie is saying. [00:10:25] Speaker 00: One of the arguments you made is that your mark has meaning in the Chinese language. [00:10:31] Speaker 00: That wouldn't necessarily resonate with American customers, right? [00:10:34] Speaker 00: Because the average American doesn't speak Chinese. [00:10:37] Speaker 00: But in China, maybe [00:10:39] Speaker 00: it isn't so much a coined term, but an understood word, so that would differentiate between the two. [00:10:45] Speaker 00: So you see how in some countries where the language is different, they might recognize more readily a difference between two marks, but in a country where they both look like coined terms and don't mean anything to the average American who doesn't speak Chinese, then it might not be the same. [00:11:03] Speaker 00: Do you understand? [00:11:04] Speaker 02: I follow that perfectly well. [00:11:06] Speaker 02: Thank you, Your Honor. [00:11:09] Speaker 03: Would you like to save the rest of your time for a puddle? [00:11:11] Speaker 02: I would. [00:11:13] Speaker 02: Thank you. [00:11:13] Speaker 03: Mr. Acosta. [00:11:21] Speaker 01: Good morning, and may it please the Court. [00:11:22] Speaker 01: Matt Acosta for appellee-opposer 10X SPA. [00:11:28] Speaker 01: Obviously, I would like the panel to affirm the decision of the board finding likelihood of confusion between the opposers' mark and the appellant mark. [00:11:36] Speaker 01: I think one of the important issues that I'd like to raise first is the issue of waiver. [00:11:41] Speaker 01: We believe two of the issues that have been raised by the appellant in this case were not addressed with the trial briefing and the board. [00:11:48] Speaker 01: We didn't have a chance to respond to that argument until now, and therefore we believe that they have both been waived. [00:11:57] Speaker 01: The first issue, I believe it's issue three in the appellant's brief. [00:12:01] Speaker 01: is that the applicable channels of trade, in this case, are different. [00:12:04] Speaker 01: Now while channels of trade were discussed by the board, the argument that the channels of trade are different because some factual scenario outside of the registration that was not raised, the board properly looked at the registrations and the applications to make the determination that the channels of trade would be regular and normal within the scope of the goods named in those applications and registrations. [00:12:32] Speaker 01: The second argument, as was mentioned earlier, that we believe was waived was as to the sophistication of the purchasers. [00:12:42] Speaker 01: We believe on the merits we can prevail ultimately on that point as well, but it simply wasn't raised in front of the board. [00:12:51] Speaker 01: And so I think correctly they didn't find opportunity to discuss the issue and make it particularly important. [00:13:00] Speaker 01: And so with those waiver arguments, the next issue I want to address is just the standard of review. [00:13:06] Speaker 01: The entire briefing of the applicant in this case was simply a disagreement with the board's findings, factual findings. [00:13:15] Speaker 01: And therefore, essentially every single point that they raise on appeal is reviewed for substantial evidence. [00:13:23] Speaker 01: And we believe that there's plenty of evidence to support each one of the [00:13:28] Speaker 01: each one of the factors that the board found in the opposers' favor. [00:13:33] Speaker 01: And I'm going to walk through each of those just briefly to discuss that substantial evidence. [00:13:40] Speaker 01: So first we have the similarity in appearance. [00:13:45] Speaker 01: The board correctly, I think what the appellant is arguing here is that they made an improper side-by-side comparison. [00:13:54] Speaker 01: But if you read their [00:13:55] Speaker 01: opinion they say they're not supposed to do that and instead they apply a casual observer test which is exactly what they're supposed to do. [00:14:05] Speaker 01: And so I'll give a similarities I think are manifest in the marks. [00:14:11] Speaker 01: Both have a T at the beginning, both have an X at the end, both have an N in the middle, both have the vowels E and A in substantially the same place. [00:14:20] Speaker 00: Oh my goodness. [00:14:21] Speaker 00: This feels like Sesame Street. [00:14:22] Speaker 00: Do you really need to do this? [00:14:23] Speaker 00: What are your important arguments? [00:14:25] Speaker 00: I mean, we didn't have much dialogue with him about that. [00:14:30] Speaker 00: You might want to focus on the issues that we talked about. [00:14:33] Speaker 01: Sure. [00:14:34] Speaker 01: I think on that particular point, well, let me move to the similarities. [00:14:40] Speaker 00: Sesame Street reference was the letters in the back. [00:14:44] Speaker 01: Well, I mention that only because that's what the board found. [00:14:48] Speaker 01: And I think if there's any confusion whatsoever, [00:14:51] Speaker 01: You could take a casual observer. [00:14:53] Speaker 01: He sees it at a trade show. [00:14:55] Speaker 00: It says T-E-E-N-I-A-X. [00:15:02] Speaker 00: which is 10 is an established word, T-E-N. [00:15:06] Speaker 00: In the American dialect, I don't know what ever being called teen. [00:15:10] Speaker 00: I don't know a hard vowel sound ever attaching to a T-E-N word, tentative, whatever. [00:15:17] Speaker 00: And part of it is, for me, when I look at 10X, I think 10 and X. First thing I thought of when I saw this is, oh, I wonder if this is to like outdoor equipment, you know, axes or something, whatever this is for. [00:15:27] Speaker 00: But so 10 is an established word in the English language. [00:15:30] Speaker 00: It always has a soft E. [00:15:32] Speaker 00: I was a little confused when the board said somebody might look at that and read it with a hearty. [00:15:37] Speaker 01: Sure. [00:15:38] Speaker 01: Well, I think first we have to start with the fact that both of the terms, as you recognize, were coined. [00:15:46] Speaker 00: But at least 10 acts is made up of two known words not being used to convey the same meaning that those words convey, but nonetheless they're understood. [00:15:56] Speaker 01: Well, I think we put in the brief that [00:16:01] Speaker 01: For instance, there are occasions in the English language, and I can't be exhausted, but I can say, like, premature and premature, actually, if you go and you look at... Yes, but there's nothing with 10 that works that way. [00:16:13] Speaker 00: Like, you know, that this is a word, an established word. [00:16:18] Speaker 01: Right. [00:16:18] Speaker 01: Well, I will tell you that I'm from Texas, and in Texas, we have all kinds of pronunciations. [00:16:24] Speaker 01: You call it texes? [00:16:25] Speaker 01: For... Is that what you're... We call... We call... We call voir dire. [00:16:30] Speaker 01: Uh, so I, I mean, and, and that's not the only example. [00:16:34] Speaker 00: When I was a district court, sitting by designation in the district court, the judge said to me, yeah, you didn't let him at a queue, at a queue. [00:16:41] Speaker 00: Like I didn't let him what? [00:16:42] Speaker 00: Allocation. [00:16:43] Speaker 01: And that's, that's exactly my point. [00:16:46] Speaker 00: Oh my goodness. [00:16:47] Speaker 00: What did I mess up? [00:16:49] Speaker 01: Certainly, certainly. [00:16:50] Speaker 01: I mean, 10 is, is, you know, a well observed pronunciation of T E N if you understand [00:16:57] Speaker 01: that this word is a combination of T-E-N and A-X, then, I mean, someone could use easily your logic in pronouncing it. [00:17:08] Speaker 01: Somebody could see it as differently. [00:17:10] Speaker 01: It's not ten, it's not ax, it's just a word they've never seen before. [00:17:13] Speaker 03: Your point is we're not dealing with teen versus ten. [00:17:17] Speaker 03: We're dealing with teeny ax versus ten ax. [00:17:21] Speaker 01: Versus ten ax. [00:17:22] Speaker 03: Ten ax, right. [00:17:24] Speaker 03: That's the whole two marks. [00:17:26] Speaker 03: Not just pieces? [00:17:29] Speaker 01: Correct. [00:17:29] Speaker 01: Exactly. [00:17:30] Speaker 01: We're dealing with the whole word. [00:17:31] Speaker 01: And the example that I think is not far from likely is somebody, a purchaser, wants to order one of these goods. [00:17:42] Speaker 01: They call up their source, and they say, I would like T-NEX. [00:17:47] Speaker 01: I would like the T-NEX epoxy. [00:17:49] Speaker 01: What are they talking about? [00:17:50] Speaker 01: Who are they talking about? [00:17:52] Speaker 01: And if the follow-up question isn't, [00:17:54] Speaker 01: Who do you mean T E N A X or T E N I A X? [00:18:00] Speaker 01: Then simply you're a source if they have these two branded products is assuming Is assuming a pronunciation is assuming what product they're talking about How long have these products been coexistent in the market [00:18:19] Speaker 01: So, well, there's a difference, but there is, first of all, no evidence in the record of, for example, these products being side by side at a trade show. [00:18:31] Speaker 00: You described a scenario where somebody calls up somebody, so I don't think they have to be side by side on the telephone. [00:18:36] Speaker 00: So how long have these products both been on the market? [00:18:40] Speaker 01: I believe the products, our product has been on the market for certainly more than 30 years. [00:18:46] Speaker 01: and there's about right. [00:18:51] Speaker 00: So 14 years, you can imagine somebody calling up and having this confusion saying TNAX and not knowing which one, but for 14 years these products have co-existed on the market and there's no evidence in this record that anything like that's ever occurred. [00:19:05] Speaker 00: Is there? [00:19:07] Speaker 01: That there's been actual confusion? [00:19:09] Speaker 01: Well I think that's an issue that I'd like to address and that yes there is no evidence of [00:19:14] Speaker 01: lack of actual confusion. [00:19:16] Speaker 00: Is there any evidence of actual confusion? [00:19:19] Speaker 00: You said, I can imagine a set of circumstances where somebody would call and say this confusing thing. [00:19:24] Speaker 00: But there's no evidence. [00:19:25] Speaker 00: In 14 years, these products have both been on the market. [00:19:28] Speaker 00: Is there? [00:19:29] Speaker 01: Well, we don't actually know exactly how much they've actually overlapped. [00:19:34] Speaker 01: And also, quite frankly, that's not the test. [00:19:37] Speaker 01: The test is whether- I'm confused. [00:19:38] Speaker 00: What do you mean we don't know how much they've actually overlapped? [00:19:41] Speaker 00: What do you mean by that? [00:19:42] Speaker 01: Well, for example, in the University of South Carolina versus University of Southern California case, one of the biggest talking points by this court was, how would we possibly have actual confusion when in a lot of circumstances? [00:20:00] Speaker 01: And there, in that case, there was actually evidence of at least one instance of actual confusion. [00:20:06] Speaker 01: And there, the court simply says, there wasn't enough overlap [00:20:11] Speaker 01: that we saw in the record between these two marks being in the same place at the same time to actually give too much weight to the lack of actual confusion. [00:20:22] Speaker 03: And I think... The board said the test is likelihood of confusion, not actual confusion. [00:20:28] Speaker 01: That's right. [00:20:29] Speaker 01: That's right. [00:20:29] Speaker 01: And also, the extent that Wuhan is actually in the market is really unclear [00:20:38] Speaker 01: from the record, if you look at their response to interrogatory 14, they say Wuhan has no record of advertising expenses in the United States. [00:20:47] Speaker 01: I'm not quite sure how you have no record of advertising expenses, but that's what they said. [00:20:52] Speaker 01: Interrogatory 15, Wuhan does not intend to advertise its goods in the United States. [00:20:59] Speaker 01: I mean, there's all these conditions which you can say, okay, well, you know, where would these things be at the same place in the same time? [00:21:06] Speaker 01: What I suspect [00:21:07] Speaker 01: and this is just my suspicion, is that the suppliers are going to be somewhere outside of the United States, but their contacts are going to be inside the United States. [00:21:18] Speaker 01: And so, I mean, quite frankly, the likelihood happens when these two marks exist in the marketplace with basically exactly overlapping goods, which is the case here. [00:21:31] Speaker 01: The registration and the application opposers mark applies to [00:21:36] Speaker 01: epoxy in the graveyard sector applicant chose to register his mark or apply for his mark with epoxy in the commercial sector and obviously the umbrella of commercial use of epoxy encompasses epoxy in the in for the commercial use in the graveyard sector so there we have overlapping goods and yes we have customers in the United States and so to the extent that [00:22:04] Speaker 01: that Wuhan has any significant presence with this overlapping mark, if it were to be allowed, then there is, in fact, the likelihood of confusion. [00:22:13] Speaker 01: And I would say maybe not for those who say the marks in concurrence with each other and, in addition, have the view that TEN always means 10 and AX always is pronounced X. But the likelihood is certainly there. [00:22:31] Speaker 01: That's what was found by the board [00:22:33] Speaker 01: And it was correctly found. [00:22:35] Speaker 01: Now, let me. [00:22:36] Speaker 03: Any of the DuPont factors found to favor appellant? [00:22:41] Speaker 01: No. [00:22:41] Speaker 01: All of the other DuPont factors were neutral, as the board found. [00:22:47] Speaker 01: So the similarity of goods. [00:22:49] Speaker 03: Or in favor of likelihood. [00:22:51] Speaker 01: Correct. [00:22:52] Speaker 01: The similarity of goods, the similarity of trade channels, and also the similarity in appearance, sound, and meaning, those all favored. [00:23:02] Speaker 01: likelihood of confusion, the rest of the factors were neutral. [00:23:05] Speaker 00: So even if maybe I personally disagreed with the pronunciation point, there's like a mountain of evidence that goes in one direction and absolutely not a single piece that goes the other way, at least according to the board's findings. [00:23:18] Speaker 00: So even if I had fault with this one tiny little aspect of the decision, that wouldn't be enough on appeal under the standard of review for me to change anything, right? [00:23:25] Speaker 01: Absolutely. [00:23:26] Speaker 01: There would be harmless error. [00:23:28] Speaker 01: I, quite frankly, I think you'd probably have to disagree with every single one of the findings of the board in order for there to be actual harmful error, just because of the, I mean, it's the overwhelming opinion of the board that the, that the marks are likely to be confused. [00:23:45] Speaker 01: But let me. [00:23:45] Speaker 03: Do you have any idea why so many foreign jurisdictions have granted Buhang registration for teeny acts? [00:23:53] Speaker 01: The only thing I can speculate is that the case law [00:23:56] Speaker 01: If you don't know, then that's fine. [00:23:59] Speaker 01: No, I have no idea. [00:24:01] Speaker 01: I have read some of the opinions in those cases that were part of the record, and some of them, you know, really don't discuss the factors. [00:24:10] Speaker 03: Which countries do they come from? [00:24:14] Speaker 01: I can't remember exhaustively, but I believe it's China, Thailand. [00:24:18] Speaker 03: In other words, not necessarily English language countries. [00:24:21] Speaker 01: No, absolutely not. [00:24:22] Speaker 01: In fact, I believe most of them are either [00:24:25] Speaker 01: Spanish-speaking countries or Southeast Asian countries or Asian countries. [00:24:30] Speaker 01: And so not predominantly English-speaking. [00:24:34] Speaker 01: But in addition to that, the weight of the factors is different. [00:24:38] Speaker 01: As Judge Moore indicated, the appellant is arguing that this mark somehow developed from T-E-N-I-C-E, and T-E means something in Chinese. [00:24:54] Speaker 01: And then they use the English word nice. [00:24:57] Speaker 01: On that point, we would simply say that if you apply that to either good faith or that there's some inherent meaning in English to that word, those aren't the marks that were applied for. [00:25:10] Speaker 01: T-E-N-I-C-E, that wasn't in the applicant's application. [00:25:14] Speaker 01: Somehow, and it's not even clear in the record how this happened, if they were considering that earlier mark, [00:25:21] Speaker 01: somehow it translated or it ended up as T-E-E-N-I-A-X and that's what they applied for. [00:25:28] Speaker 01: So any argument about good faith or that there's some established meaning based on that history is simply irrelevant because the mark that the court and the board has for it is T-E-E-N-I-A-X. [00:25:44] Speaker 01: The last point I'll make in my final 30 seconds is the [00:25:51] Speaker 01: point that the appellant is making about the lack of confusion. [00:25:58] Speaker 01: I think the only piece of evidence they point to is that one line in the declaration of their general manager. [00:26:06] Speaker 01: But as Judge Moore pointed out in the record, and there are several instances of this, especially in the responses to the interrogatories, there's no way that they would know about lack of confusion. [00:26:17] Speaker 01: They didn't do any investigation. [00:26:19] Speaker 01: They didn't perform any studies. [00:26:20] Speaker 01: So simply 10 years ago, me declaring that I have no knowledge of black confusion doesn't move the ball anywhere. [00:26:28] Speaker 01: It's irrelevant, as the board found. [00:26:30] Speaker 01: And for those reasons, the decision to not register the mark should be affirmed. [00:26:35] Speaker 01: Thank you. [00:26:36] Speaker 03: Thank you, counsel. [00:26:37] Speaker 03: Mr. Hines has some rebuttal time if you need it. [00:26:43] Speaker 02: Your Honor, I will waive appellance for rebuttal time. [00:26:46] Speaker 02: Thank you. [00:26:48] Speaker 03: Thank you. [00:26:48] Speaker 03: The case is submitted.