[00:00:03] Speaker 03: both the co-panelists here for accommodating the need to move the arguments to this afternoon, because it was at my request. [00:00:13] Speaker 03: And they very quickly responded that they would be flexible. [00:00:16] Speaker 03: So I want to thank both judges, Bryson and Hughes. [00:00:22] Speaker 03: We have four cases before the court today. [00:00:28] Speaker 03: The first of which is docket number 192401, Zarco Hotels versus Hollywood Casinos LLC. [00:00:36] Speaker 03: It is an appeal from the trademark trial and appeal board. [00:00:40] Speaker 03: And I understand that there is a request for a three-minute rebuttal. [00:00:49] Speaker 03: Can you pronounce your last name for me? [00:00:53] Speaker 03: Bataille. [00:00:54] Speaker 03: Bataille? [00:00:55] Speaker 03: Bataille. [00:00:55] Speaker 03: OK. [00:00:55] Speaker 03: Thank you. [00:00:56] Speaker 03: You may begin. [00:01:01] Speaker 03: and you can remove your mask while arguing. [00:01:21] Speaker 02: Good afternoon. [00:01:22] Speaker 02: May it please the court. [00:01:25] Speaker 02: My name is Cameron Fatahi at Law Offices of Cameron Fatahi, here to represent Appellant Zarco Hotels, Incorporated. [00:01:32] Speaker 02: This is an appeal from the TTAB opposition proceeding in which the opposer asserted two grounds for the opposition. [00:01:43] Speaker 02: One was likelihood of confusion. [00:01:46] Speaker 02: The other was attack on the ownership issue. [00:01:50] Speaker 02: saying that the application was void at initial because it was filed by the incorrect owner. [00:01:58] Speaker 02: The board never reached a decision on the likelihood of confusion issue on section 2D and only issued a decision on the ownership issue. [00:02:09] Speaker 02: When my friend counsel for APOLE takes the podium, I expect that she will make arguments to the effect that I am here asking this court to weigh the evidence and to weigh and make credibility determinations. [00:02:31] Speaker 02: of my client below. [00:02:35] Speaker 02: That is not at all what I'm here to ask this court to do. [00:02:39] Speaker 03: Well, I don't know that there were issues about credibility as much as there were simply undisputed facts. [00:02:50] Speaker 03: As I understand it, the property was owned by [00:02:55] Speaker 03: Zarko Hotels, Inc., right? [00:02:58] Speaker 02: Correct. [00:02:58] Speaker 03: Was it ever owned by the first management company? [00:03:04] Speaker 02: We're talking about the physical hotel property. [00:03:07] Speaker 02: No, it was always owned by Zarko Hotels, Inc. [00:03:12] Speaker 02: And later on when [00:03:18] Speaker 02: when Chateau Celeste Inc., under its former name, which was Zarco Property Management Inc., was formed in 1998. [00:03:26] Speaker 02: That's when it was formed. [00:03:30] Speaker 02: The application at issue, in this case, was filed on March 30, 2011. [00:03:36] Speaker 04: In your view, when did Chateau Celeste obtain the ownership of the mark? [00:03:48] Speaker 02: It was definitely sometime after its formation and definitely before the first application which matured into the 342 registration for the long form was issued. [00:04:02] Speaker 02: That first application was filed in 2003. [00:04:05] Speaker 04: So the mark was not owned by Chateau Celeste from the first moment that Chateau Celeste was formed, I take it? [00:04:15] Speaker 02: That was not specifically discussed the exact moment when it was transferred, the ownership, at least in an implied manner. [00:04:27] Speaker 02: But most definitely, by the time the long-form application for Hollywood Hotel, the Hotel of Hollywood, was filed in 2003, the ownership had transferred to Chateau Celeste. [00:04:42] Speaker 02: And what was the act? [00:04:44] Speaker 04: action that constituted the effective transfer of ownership of the mark, which had, I take it, previously been owned by Zarco Hotels? [00:04:56] Speaker 02: It was overall, it happened in an implied manner. [00:05:03] Speaker 02: And it was over the course of conduct and expectations of the parties. [00:05:11] Speaker 02: Mr. Zarinam was the president and CEO of both corporations from the outset and to the present. [00:05:20] Speaker 02: And he testified [00:05:23] Speaker 02: in his trial testimony that he acted, specifically he testified that he acted in his capacity on behalf of Chateau Silas Inc. [00:05:35] Speaker 02: as its president and CEO when he was controlling the nature of use of the market. [00:05:42] Speaker 03: Can I go back to my first question, which is there was a property management company in existence, right? [00:05:48] Speaker 02: That was Chateau. [00:05:50] Speaker 03: And they changed the name to Chateau Celeste. [00:05:53] Speaker 02: It was Zarko Property Management Inc. [00:05:57] Speaker 02: that later on in 2009 changed its name to Chateau Celeste. [00:06:02] Speaker 03: Okay, so you're saying that there was never a transfer of the mark from Zarko Hotels [00:06:09] Speaker 03: to Zarco Property Management Inc. [00:06:11] Speaker 03: that the transfer did not occur until the name change had occurred? [00:06:15] Speaker 02: No, no, no. [00:06:17] Speaker 02: It occurred before then. [00:06:18] Speaker 02: But I'm saying it did not occur in a formal written manner. [00:06:25] Speaker 02: It was the entire understanding and course of conduct of the parties. [00:06:31] Speaker 02: And one of the manifestations of it was the fact that the long-form application, which led to 342 registration, was filed in the name of Zarco Property Management Inc. [00:06:47] Speaker 02: in 2003. [00:06:49] Speaker 03: But when you say the parties, [00:06:51] Speaker 02: But the entities involved. [00:06:53] Speaker 03: So basically, he's saying that because he controlled both entities. [00:06:59] Speaker 02: No, we're not asserting that it's as simple as, [00:07:05] Speaker 02: as the applicant in the Great Seats case said that because I'm the president and CEO of both entities, therefore, whatever I did benefited the entity that was named as the applicant. [00:07:18] Speaker 02: That's not what we're arguing. [00:07:20] Speaker 02: But there was direct testimony and uncontradicted from Mr. Zarinov. [00:07:27] Speaker 02: He is the person [00:07:29] Speaker 02: He's the only, I mean, not the only, but he is the person most knowledgeable and intimately familiar with the facts. [00:07:37] Speaker 02: If there was contradictory evidence and testimony, that would be one thing. [00:07:42] Speaker 02: This is different than the cases where there is a ownership dispute between several parties. [00:07:51] Speaker 01: So for example, in a... Are you saying that because he's the only one [00:07:55] Speaker 01: that testified to it and that there was no specific evidence to rebut it, that the board had to accept his testimony as true? [00:08:04] Speaker 02: Well, there are cases that say if it's uncontradicted and it comes from a person with direct knowledge, there's no reason not to believe it. [00:08:23] Speaker 02: What if they didn't believe him? [00:08:25] Speaker 02: I mean, you cannot just, one cannot just say, I don't believe it because I don't want to believe it. [00:08:32] Speaker 01: Furthermore- That's not what they said here, though. [00:08:34] Speaker 02: Furthermore, there was corroboration. [00:08:36] Speaker 01: I just want to get at this point you're trying to make when you keep suggesting that it was uncontradicted and that means something. [00:08:43] Speaker 01: The board still has a role in testing whether they believe the veracity of that statement and whether they have to accept it or not, don't they? [00:08:54] Speaker 02: Well, a trier of fact can judge credibility. [00:09:00] Speaker 02: But there has to be reason and logic behind it. [00:09:05] Speaker 02: Just calling testimony self-serving and conclusory doesn't make it so. [00:09:11] Speaker 02: But especially when it is corroborated with other evidence that [00:09:18] Speaker 02: Um, the entire time he was acting in his capacity on behalf of Chateau Celeste Inc. [00:09:25] Speaker 02: when he was controlling the nature and use of the mark. [00:09:29] Speaker 02: I mean, is it? [00:09:31] Speaker 01: No, go ahead. [00:09:32] Speaker 04: Prior to, uh, 1998, let's say. [00:09:36] Speaker 04: Yes. [00:09:36] Speaker 04: Um, the, it's undisputed. [00:09:38] Speaker 04: I take it that the mark was owned by Zyra Zarko, who tells, correct? [00:09:43] Speaker 02: One would have to agree to that, yes, because the other entity, Zarco Property Management Inc., did not exist and Zarco Hotels Inc. [00:09:52] Speaker 02: was using the mark. [00:09:53] Speaker 04: Right. [00:09:53] Speaker 04: Now, if in 2003, Mr. Zaranam had applied for the registration in the name of Zarco Hotels, would that have been a proper application, a proper applicant at that time? [00:10:13] Speaker 02: If that had been the arrangement. [00:10:16] Speaker 04: Well, if he walked into the office and said, here's my registration form in the name of Zarca Hotels, would that have been satisfactory to establish the right in Zarca Hotels? [00:10:33] Speaker 02: I would say in that situation, under these facts, no, Your Honor, because already the key inquiry is [00:10:43] Speaker 02: which entity controlled the nature of the quality of the services being rendered. [00:10:52] Speaker 02: And Mr. Zarinam testified that it was already Zarco Property Management, Inc., which later changed its name to Chateau Celeste, Inc. [00:11:02] Speaker 02: So at that time, the entity, the key inquiry, Your Honors, [00:11:08] Speaker 02: is to decide which entity controlled the manner of the use of the mark. [00:11:13] Speaker 02: And if Mr. Zarinam and corroborated by the fact that the long form application, the long form mark starts with Hollywood Hotel and then continues with the Hotel of Hollywood, it makes absolutely no sense to say that the long form mark was owned by Zarco Hotels Inc, but the [00:11:34] Speaker 02: Sorry, one was owned by one entity and the other one, Hollywood Hotel, the short version, was owned by another. [00:11:41] Speaker 02: So prior to the filing of the 2003 application, it was the Zarco Property Management Inc. [00:11:50] Speaker 02: that was controlling the use of the mark. [00:11:54] Speaker 02: So because of that, the long-form application was filed in the name of that entity. [00:11:59] Speaker 04: And that became true when? [00:12:05] Speaker 04: When did it become, because you agreed that it was Zarco Hotels that owned the mark up until a certain point. [00:12:13] Speaker 04: And now you say, as of 2003, Zarco management owned the mark. [00:12:19] Speaker 04: When did that transfer occur? [00:12:23] Speaker 02: I think at or about the time of its formation, because Mr. Zarinov testified that [00:12:31] Speaker 02: One of the objectives of Zarco Property Management Inc. [00:12:35] Speaker 02: was for him, in his capacity as president and CEO, to control all manner of use of the mark at the physical hotel property. [00:12:45] Speaker 02: So for many years, it was him, in his official capacity, that was controlling it. [00:12:55] Speaker 03: These are both corporations, right? [00:12:57] Speaker 03: What's that? [00:12:59] Speaker 03: hotels and Zarko Property Management were both corporations, right? [00:13:04] Speaker 03: Correct, Your Honor. [00:13:05] Speaker 03: And corporations have to follow some corporate structure. [00:13:10] Speaker 02: Absolutely, Your Honor. [00:13:11] Speaker 02: But we have to... Are you saying these are just... [00:13:17] Speaker 03: Officer, eagle thing going on here? [00:13:19] Speaker 02: No, no, no, Your Honor. [00:13:20] Speaker 02: I'm not suggesting that. [00:13:21] Speaker 02: But in this fact scenario, I suggest that the court should. [00:13:27] Speaker 01: Can I ask you, when Zarko management was formed, did Zarko Hotel Corporation, was that transferred to Zarko? [00:13:36] Speaker 01: Management 2 was, in other words, where all the assets of Zarco Hotel, once the management company was created, transferred to the management company. [00:13:46] Speaker 01: So the hotel entity, corporate entity, stayed separate. [00:13:51] Speaker 01: Correct your honor, so I which the hotel entity is what owned the name at some point in time Yes, you have to show is that when the management company was created even though some of the assets associated with the hotel state in the hotel corporation other assets including the name transferred and [00:14:14] Speaker 02: Correct, Your Honor. [00:14:15] Speaker 02: And I am not suggesting we have to forget about corporate formalities. [00:14:20] Speaker 01: And you have no documentary evidence for that. [00:14:23] Speaker 01: There was no written agreement. [00:14:25] Speaker 01: When the management company was created, it didn't say, OK, hotel, you still own the hotel property, all the grounds, get the income from this. [00:14:34] Speaker 01: Management company, here's what you have. [00:14:37] Speaker 01: including now the trademark there was no there was no written agreement so no formal document asking us to infer that [00:14:46] Speaker 01: a trademark associated with the hotel that still retained a copy, that still retained a separate corporate entity was nonetheless implicitly transferred without any direct evidence of that implicit transfer, beyond your client's testimony? [00:15:03] Speaker 02: Nothing in writing, Your Honor. [00:15:04] Speaker 02: But there is direct testimony from Mr. Zarinam that that took place. [00:15:10] Speaker 02: And the course of conduct by the parties [00:15:12] Speaker 02: supports that, corroborates that. [00:15:15] Speaker 02: And one has to keep in mind. [00:15:16] Speaker 03: You have my problem with his testimony. [00:15:18] Speaker 03: You say he says it took place. [00:15:20] Speaker 03: But he didn't put a date on it. [00:15:22] Speaker 03: He didn't say this was my intention all along. [00:15:26] Speaker 03: And at this particular point in time, I mean, even in response to Judge Price, you couldn't point out the point in time. [00:15:32] Speaker 03: All he just said is, I think about it, and ergo it happens. [00:15:35] Speaker 02: No. [00:15:36] Speaker 02: I mean, one has to keep in mind that this is a close family-owned business. [00:15:42] Speaker 02: And this court has, on a number of occasions, has said that we have to keep that in mind. [00:15:48] Speaker 02: Less formality is required when a situation like that exists. [00:15:52] Speaker 02: He did, I believe, say that when the management entity was formed, it was formed so that he could also, in his official capacity, control the use of the mark. [00:16:08] Speaker 02: But there is no formal written agreement, nor is one required, Your Honor. [00:16:14] Speaker 03: And the law is he didn't actually say it was formed so he could control use of the mark. [00:16:20] Speaker 03: What he said is it was formed so that they could operate the hotel property, right? [00:16:26] Speaker 02: Yes, and manage it. [00:16:28] Speaker 02: But he also testified that in his official capacity, on behalf of Chateau Celeste Inc., he was controlling the mark. [00:16:39] Speaker 03: Well, couldn't he have also been controlling the mark in his capacity as the head of Zarco Hotels Inc.? [00:16:46] Speaker 02: No, he was not controlling it. [00:16:48] Speaker 02: That's not the testimony. [00:16:49] Speaker 02: It's the testimony he said that I gave permission [00:16:53] Speaker 02: from Chateau Celeste Inc. [00:16:54] Speaker 02: to Zarco Hotels to use it. [00:16:57] Speaker 02: And one has to inform, if there is a permission going from Chateau Celeste to Zarco Hotels, why would Zarco Hotels need such a permission if it was understood to be the owner of the mark already? [00:17:10] Speaker 03: OK, I'm sorry. [00:17:11] Speaker 03: You're well into your rebuttal time. [00:17:14] Speaker 03: I sort of mistracked because the clock is up there. [00:17:17] Speaker 03: But we'll give you two minutes for rebuttal. [00:17:19] Speaker 03: Thank you. [00:17:35] Speaker 03: Okay, Ms. [00:17:37] Speaker 03: Jacobs. [00:17:54] Speaker 00: Good afternoon, may it please the court. [00:17:56] Speaker 00: Hara Jacobs from Ballard's Bar for the Appellee Hollywood Casinos LLC. [00:18:02] Speaker 00: The issue on this appeal is whether the board's holding that appellant was not the owner of the Hollywood Hotel mark at the time the application was filed in March of 2011 is supported by substantial evidence. [00:18:18] Speaker 00: Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. [00:18:26] Speaker 00: and stated another way, it is evidence from which it is possible to draw two inconsistent conclusions. [00:18:32] Speaker 03: But do you concede that you can have an implied transfer of a mark? [00:18:40] Speaker 00: I'm going to say, no, we don't concede that you can have an implied transfer, but that that is not relevant in this proceeding. [00:18:50] Speaker 00: Because even if you can, impliably transfer a mark, [00:18:55] Speaker 00: The evidence in this case is very clear that that never happened. [00:19:03] Speaker 00: And I wanted to be specific to point out two statements that Appellant's counsel made about what he purported to be evidence in the record that is absolutely not there on this point. [00:19:14] Speaker 00: Number one, counsel stated during his argument that Mr. Zerinam testified that the purpose of Zarko property management [00:19:23] Speaker 00: was to control the use of the Hollywood Hotel Mark. [00:19:26] Speaker 00: That testimony is absolutely nowhere in the record. [00:19:31] Speaker 00: And second, he claimed that Mr. Zinranam gave direct testimony about the transfer of the Hollywood Hotel Mark from Zarco Hotels to [00:19:46] Speaker 00: Darco Property Management slash Chateau Celeste. [00:19:50] Speaker 00: There is no, and I'm going to get to this, but I wanted to make sure I pointed the outset. [00:19:54] Speaker 00: That testimony is not in the record. [00:19:58] Speaker 03: Well, what about the fact of the long form mark and the registration of long form mark? [00:20:01] Speaker 03: Doesn't that in and of itself show an intent to control the mark? [00:20:07] Speaker 00: Well, first of all, in terms of it being conclusive evidence, it's not because of this court's decision in recordia, which states that simply because someone has [00:20:20] Speaker 00: registration for a different mark that's forget conclusive evidence it's not even evidence that you own a different mark and here it is a different mark and the board certainly found I think correctly found here that applicants that the applicants that appellants [00:20:42] Speaker 00: earlier application and registration for the long form of the mark didn't establish ownership, and it was erroneous just like this application was erroneous. [00:20:54] Speaker 03: I mean, in terms of... Well, it's certainly at least circumstantial evidence of who they intended to be using the mark and protecting the use of the mark. [00:21:06] Speaker 00: And, Your Honor, even if that was one piece of circumstantial evidence, and I'm going to go through the evidence, [00:21:11] Speaker 00: There is a wealth of evidence in this matter that fully supports the board's conclusion that the appellant was not the owner of the mark at the time it was filed. [00:21:23] Speaker 00: There is a wealth of evidence in that regard. [00:21:26] Speaker 00: First of all, in terms of, I think the evidence can be broken down into two categories. [00:21:31] Speaker 00: The first category of evidence are the admissions from the appellant's CEO at his discovery deposition. [00:21:38] Speaker 00: And the second category of evidence is, even assuming you ignore the admissions of the appellant's CEO and his discovery deposition, it is the question of how did the appellant, which did not exist, [00:21:52] Speaker 00: on the date of first use of the Hollywood Hotel, Mark, how did it become the owner? [00:21:57] Speaker 00: And starting with the first category, which are the admissions of the appellant CEO, after the appellant CEO testified about his relationship to four different real estate holding companies, he was asked, which of those four holding companies controls the nature and quality of the services provided at the Hollywood Hotel property? [00:22:17] Speaker 00: Answer, Zarco Hotels, Inc. [00:22:20] Speaker 00: and Chateau Celeste Inc. [00:22:22] Speaker 00: is the management company. [00:22:23] Speaker 00: And then, Appellant's principal further testified that applicant Chateau Celeste Inc. [00:22:29] Speaker 00: uses the Hollywood hotel mark pursuant to a license from Zarco Hotels. [00:22:34] Speaker 00: The question was, does Chateau Celeste Inc. [00:22:36] Speaker 00: have a license from Zarco Hotels to use trademarks? [00:22:40] Speaker 00: The answer was yes. [00:22:43] Speaker 00: And in addition to the deposition testimony of Appellant's CEO, the board also considered [00:22:49] Speaker 00: the contemporaneous documentary evidence showing that Zarco Hotels was the entity controlling the services rendered at the Hollywood Hotel property, and it was holding itself out to the public as the entity behind Hollywood Hotel. [00:23:04] Speaker 00: For example, Zarco Hotels held itself out as the owner and operator of the Hollywood Hotel property in newspaper articles and social media, for example, talking about the renovation of the property. [00:23:15] Speaker 00: Zarko Hotels, not Appellant, employees the individuals who work at the hotel. [00:23:20] Speaker 00: Zarko Hotels holds the relevant permits that allows the services to be offered at Hollywood Hotel. [00:23:28] Speaker 00: Zarko Hotels is the registrant and operator of the domain names used by the Hollywood Hotel property. [00:23:34] Speaker 00: And taken together, the admissions of Appellant CEO and the documentary evidence taken together under the substantial evidence standard was more than sufficient [00:23:43] Speaker 00: to support the board's finding that Appellant was not the owner of the Hollywood Hotel Mark at the time the application was filed in March 2011. [00:23:52] Speaker 00: And then we get to the second important category of evidence that the board relied upon, which was how did Appellant become the owner of the Hollywood Hotel Mark? [00:24:03] Speaker 00: Because as we discussed, Appellant didn't exist in 1994, the claim date of first use of the mark. [00:24:09] Speaker 00: Appellant came into existence in 1998. [00:24:13] Speaker 00: So, appellant claims that it owns a mark that it could only acquire by written or potentially an implied assignment from Zarka Hotels. [00:24:24] Speaker 00: And as the board explained, while these circumstances beg the question of how applicant came to own a mark that it seeks to register, [00:24:31] Speaker 00: There's no dispute. [00:24:32] Speaker 00: There's no written assignment here. [00:24:34] Speaker 00: And so Appellant argued in its brief that the evidence demonstrated an implied assignment or an implied agreement. [00:24:43] Speaker 00: And what Appellant more specifically argued in its brief is that it was formed to own and control use of the Hollywood hotel mark. [00:24:52] Speaker 00: and that that would be sufficient for an implied assignment. [00:24:55] Speaker 00: But here's the key thing. [00:24:57] Speaker 00: There is no evidence in the record that Chateau Celeste Inc. [00:25:02] Speaker 00: was formed for the purpose of owning and controlling the use of the Hollywood Hotel [00:25:07] Speaker 03: Mark, appellant put in... Is there any corporate charter in the record or anything where it is a statement of purpose with respect to Chateau Celeste is put in writing? [00:25:18] Speaker 00: So, Your Honor, the closest thing that there would be to that is that Chateau Celeste filed documents with the California Secretary of State about itself, which is required. [00:25:30] Speaker 00: And what it said about itself is first, when answering what its business was, [00:25:37] Speaker 00: It said vacant land. [00:25:39] Speaker 00: When asked to give its address, it said vacant land. [00:25:43] Speaker 00: It didn't say to control the Hollywood Hotel trademark or whatever else. [00:25:48] Speaker 00: It said vacant land. [00:25:49] Speaker 00: Second, when asked to put its address, it didn't put the address of the Hollywood Hotel property. [00:25:54] Speaker 00: It put the address of the vacant land being the chateau where Chateau of Celeste was and was being renovated. [00:26:05] Speaker 00: So those contemporaneous documents are not at all consistent with saying that the purpose of Chateau Celeste was to own and control the Hollywood Hotel Mark. [00:26:18] Speaker 00: Also, when Mr. Zarinam was asked at his discovery deposition what is Chateau Celeste, he said it's a real estate holding company. [00:26:33] Speaker 00: He didn't say it was owned and formed and controlled and formed and created for the purpose of owning and controlling the Hollywood Hotel. [00:26:43] Speaker 04: But it would be a used car dealership. [00:26:46] Speaker 04: And he could assign the mark to the used car dealership, right? [00:26:52] Speaker 04: I mean, there's no limit on who can be assigned the ownership of a trademark, as I understand it. [00:26:59] Speaker 00: So Your Honor, you're saying hypothetically that he could have assigned it to his daughter-in-law who was 10 years old. [00:27:07] Speaker 00: When you say he, I mean, I would say that only the owner could, and the owner was Zarco Hotels. [00:27:11] Speaker 00: So if the hypothetical is that could Zarco Hotels have assigned the trademark to his daughter, his daughter-in-law, and to, you know, it could. [00:27:22] Speaker 00: However, OK, those are not the circumstances under which [00:27:28] Speaker 00: the courts, the board has ever found an implied assignment as opposed to a written assignment. [00:27:32] Speaker 00: And the key thing here is that the argument is that this was an implied assignment. [00:27:36] Speaker 00: And implied assignments, to the extent they have been recognized, have only been recognized in very limited circumstances. [00:27:44] Speaker 04: But if you have, if there is a right to an applied assignment, assume that with us, then [00:27:51] Speaker 04: Why isn't it pretty good evidence that there was an intended and therefore implied assignment to Hotel Chateau Celeste that he applied for the mark in the name of Chateau Celeste? [00:28:10] Speaker 04: Doesn't that indicate a clear intention on his part that Chateau Celeste be the owner and if it's implied [00:28:18] Speaker 04: transfer requires nothing other than the exercise of that intention. [00:28:23] Speaker 04: Why isn't that enough? [00:28:24] Speaker 00: Sure. [00:28:25] Speaker 00: Well, Your Honor, the reason why that's not enough is because the act of merely applying for the trademark, I would say, is equally consistent with someone making a mistake as the argument you're making. [00:28:36] Speaker 00: And what you then need to do is look at all of the other evidence in the record, right, which is what the Board did. [00:28:42] Speaker 00: The Board looked at all of the evidence in the record. [00:28:46] Speaker 00: And it determined [00:28:47] Speaker 00: that the evidence did not demonstrate that there was an implied assignment of the Hollywood Hotel Mark from Zarko hotels to Chateau Celeste Inc. [00:28:58] Speaker 00: I mean people file trademark applications and [00:29:01] Speaker 00: You know, there's literally dozens of cases finding that the wrong person filed the mark. [00:29:07] Speaker 00: And that happens. [00:29:08] Speaker 00: And I would say that that's exactly what happened here. [00:29:11] Speaker 00: So merely filing a trademark application is not conclusive evidence of intent. [00:29:15] Speaker 00: It's equally consistent with someone making a mistake. [00:29:19] Speaker 04: But if you have two closely held corporations and very small and intimately associated with the proprietor of both, then it would seem to me, again, if you do recognize [00:29:31] Speaker 04: implied assignments, that that would be a situation in which evidence such as an application in the name of one of them would suggest that that is the party that the assignor, the principal at least, believed was and should be deemed the owner of the mark. [00:29:50] Speaker 04: Wouldn't you agree? [00:29:51] Speaker 00: I don't agree, and that's exactly what the Great Seats case says. [00:29:55] Speaker 00: I mean, in Great Seats, which is completely analogous to this case, you had one individual who ran two different companies. [00:30:03] Speaker 00: You had this company, PEI, who was the first company to use the mark. [00:30:09] Speaker 00: And then you had GSI, who actually filed the application. [00:30:14] Speaker 00: And what the court found in Great Seats is that, [00:30:19] Speaker 00: great see it was that this GS the second entity who filed the application was not the owner and it didn't matter that you know these were closely held businesses and it was the same person in charge of both businesses the question about trademark ownership is who controls [00:30:35] Speaker 00: the nature and quality of the goods and services that are being offered under the mark. [00:30:40] Speaker 00: And in great seats, it was determined that it was PEI who was exercising that control. [00:30:46] Speaker 00: And I would say to you here that the record is overwhelming that it was Zarco Hotels the whole way that was [00:30:55] Speaker 00: has been controlling the nature and quality of the goods and services at the Hollywood Hotel property and not Chateau Celeste Inc. [00:31:03] Speaker 00: The only evidence really that there is of that is Mr. Zarinem saying at his testimony deposition that acting, you know, that having his hat on as Chateau Celeste, that he was licensing, you know, the mark and exercising some type of control. [00:31:22] Speaker 00: But the board and the board considered that. [00:31:24] Speaker 00: The board considered that testimony, but the board also found that testimony directly contradicted the testimony he gave at his discovery deposition, and that when he tried to change his testimony from his discovery deposition through a deposition or a sheet and then a sham at the David, the board in a published decision said very clearly, you can't do that, and we're not going to credit that testimony. [00:31:48] Speaker 00: And further, when Mr. Zaranam, I think this is really important, when he was asked, [00:31:54] Speaker 00: What is the relationship between Appellant and Zarco Hotels? [00:32:04] Speaker 00: When he was asked what the relationship was, he said, me. [00:32:08] Speaker 00: That's what he said. [00:32:10] Speaker 00: That's not the Appellant exercising control over the Hollywood hotel mark. [00:32:20] Speaker 00: That's not consistent with that. [00:32:27] Speaker 00: I see that I have very little time, very little time left. [00:32:32] Speaker 00: And I will sum it up by saying that to the extent that, you know, Pelham is arguing about the different pieces of evidence that it feels, you know, support its position. [00:32:43] Speaker 00: It's very clear from the board's decision that it did consider those pieces of evidence including the testimony at his testimony deposition. [00:32:52] Speaker 00: the long-form application and the so-called course of conduct. [00:32:57] Speaker 00: And the board explained all of those things and then explained why it did not find them persuasive. [00:33:04] Speaker 00: And respectfully, this court should defer to the weighing of the evidence and the credibility determinations by the board and affirm the decision of the board. [00:33:17] Speaker 00: Thank you. [00:33:42] Speaker 02: Your Honours, on rebuttal, I'd just like to make a few quick points. [00:33:47] Speaker 02: One is the effect of the 342 registration. [00:33:53] Speaker 02: It is more than five years old. [00:33:54] Speaker 02: It is incontestable under 15 USC 1115B. [00:33:59] Speaker 02: That is conclusive evidence. [00:34:02] Speaker 02: of ownership of Chateau Celeste in the Hollywood Hotel, the Hotel of Hollywood Mark. [00:34:09] Speaker 02: It makes absolutely no sense for the board to say, to actually, it went out of its way to say, no, we don't care, but Zarco Hotels actually owns that mark as well. [00:34:22] Speaker 02: The board said that, against the conclusive evidence of that registration. [00:34:28] Speaker 02: And it makes no sense to say, [00:34:30] Speaker 02: Zarco Hotels owns the long form mark, but Zarco Hotels owns the short form mark. [00:34:43] Speaker 02: They both start with Hollywood Hotel. [00:34:49] Speaker 02: Council said there's no evidence. [00:34:51] Speaker 02: She said that Chateau-Celeste filed something years later, putting the address of the other property. [00:35:01] Speaker 02: We have something in the record. [00:35:02] Speaker 02: This was in the record below. [00:35:04] Speaker 02: It just didn't find its way in the appendix. [00:35:07] Speaker 02: If I could ask the court to consider this, it's in appendix. [00:35:11] Speaker 02: 1110. [00:35:12] Speaker 02: This is a document from 1999 filed with the Secretary of State. [00:35:17] Speaker 02: I can hand this to the clerk if you allow me and I have a copy for counsel. [00:35:22] Speaker 02: It has an address of 1160 North Vermont Avenue for Zarco Property Management Inc. [00:35:30] Speaker 02: That is the same address as the hotel property. [00:35:32] Speaker 02: So there was connection with that location. [00:35:37] Speaker 02: So looking at the totality of the expectations [00:35:42] Speaker 02: and understandings of the entities involved. [00:35:46] Speaker 02: The key issue is who controlled the use of the mark on March 30, 2011. [00:35:54] Speaker 02: Not at some point later on, not some years earlier. [00:35:59] Speaker 02: It's at that time that the court should focus its attention to. [00:36:04] Speaker 02: And there is direct testimony of who owned the mark, who controlled the use of it. [00:36:11] Speaker 02: Contrary to what the board said, Mr. Zarianam said, I acted in my official capacity. [00:36:18] Speaker 02: The board said, we're just not going to believe that. [00:36:21] Speaker 02: What this comes down to is basically [00:36:23] Speaker 02: in my closing statement, an unfortunate misunderstanding that happened in the discovery deposition. [00:36:31] Speaker 02: The second part of that question and answer just makes no sense. [00:36:35] Speaker 02: In the discovery deposition, it was asked, does Chateau Celeste have a license for use of the mark? [00:36:42] Speaker 02: And the answer was yes. [00:36:43] Speaker 02: That shows all of the confusion that was going on. [00:36:47] Speaker 02: Chateau Celeste was not using the mark. [00:36:48] Speaker 02: It was Zarco Hotels. [00:36:50] Speaker 02: So based on that, all of that misunderstanding led to all of this, and he corrected the record in his trial testimony. [00:36:59] Speaker 02: And I request this court to reverse the decision below and remand to allow the decision on the likelihood. [00:37:06] Speaker 02: OK. [00:37:07] Speaker 02: Thank you. [00:37:07] Speaker 02: Thank you, Your Honor.