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The next case for argument is 24-1460, Fuente Marketing versus Vaporous Technologies.

[00:00:09] Speaker 01:
Good morning.

[00:00:10] Speaker 00:
It's been a while.

[00:00:11] Speaker 01:
Nice to see you again.

[00:00:12] Speaker 01:
Thank you.

[00:00:12] Speaker 01:
Please proceed.

[00:00:13] Speaker 00:
Good morning, Your Honor.

[00:00:14] Speaker 00:
May it please the court?

[00:00:15] Speaker 00:
My name is Virginia Caron.

[00:00:16] Speaker 00:
I represent the appellant, Fuente Marketing Limited.

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This case is about two marks.

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Fuente's standard character, X mark, an applicant's mark, which is identical to Fuente's with the addition of a dot above it.

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And the board improperly relied on that dot as the basis for concluding that the applicant's mark is not similar to Fuente's arbitrary X mark when used on inherently related goods, traveling in overlapping channels of trade to overlapping consumers.

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And the board's conclusion as to the similarity in marks, which is the only factor that it found weighed against the finding of similarity of likely confusion,

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is unsupported by the substantial evidence for the same reasons that the court recently reversed the board's dismissal of an opposition in sunkist growers versus interstate distributors.

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Just like in sunkist, here there is not substantial evidence to support the board's finding that the applicant's mark conveys a commercial impression that is different than Fuente's mark.

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The board here concluded that Fuente's X mark and Vapors' X dot mark are dissimilar based on its finding that consumers will perceive Vapors' mark as a stick figure.

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It relied on an incomplete reading of the stipulation between the parties, a stipulation that simply quotes the mark's description in Vapors's application.

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But the stipulation doesn't merely say that the applicant's mark is a stick figure.

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What the stipulation says is that Vapors's X dot mark consists of an abstract stick figure consisting of two diagonal intersecting lines in the shape of a wide stylized letter X and a shaded circle above the letter X. The description of the mark was required because

[00:01:46] Speaker 00:
An abstract stick figure tells you nothing about what the mark could be.

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An abstract stick figure could be represented hundreds if not thousands.

[00:01:52] Speaker 01:
But the board, taking your argument, whether I agree or not, but didn't the board say even if that weren't the case, I mean, even without relying on the stipulation, they're looking at the figures and saying there's a dissimilarity, correct?

[00:02:05] Speaker 01:
The board didn't rely exclusively on the stipulation.

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The board did find that there were visual dissimilarities between the marks because of the addition solely of the dot above the X.

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And our position is that if the board had properly given the scope of protection due to the Fuente X mark, they found the X mark was arbitrary and thus at the highest level of distinction entitled to a broad scope of protection.

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And they also disregarded the fact that less similarity is required on highly related goods traveling to overlapping channels of trade to overlapping consumers.

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If the board had properly considered the scope of protection afforded at the X mark, our position is that the addition of a dot to an otherwise identical mark would not have been enough to create a dissimilarity of the marks that solely based on that position would have outweighed all the other factors and resulted in a finding that there is not likelihood of confusion.

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But even leaving aside that the board did find the strength was neutral because of the x related to, in most circumstances, other words.

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The board did find that the strength of the mark was neutral when it weighed likely to confusion factors, Your Honor.

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And we disagree with that finding.

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The board improperly disregarded the law about arbitrary marks.

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The two parts of the strength of the mark are the conceptual strength and the commercial strength.

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And the board found properly, we believe, that the X mark is arbitrary when applied to the guards.

[00:03:35] Speaker 01:
So do you need both?

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I mean, there are all these du Pont factors, and I don't know how you separate them, too.

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But you're saying that the dissimilarity is contingent on, or I mean, the two are kind of similar.

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It's a strong mark.

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And that's why you kind of need us to disagree with the board on both of those issues, right?

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That is correct, Your Honor.

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And the strength of the mark does, it has to be considered the strength of the mark, both conceptually

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commercially have to be considered in defining the scope of the mark's protection because there's less similarity required when the mark is strong and is applied to related goods that travel on overlapping channels to related consumers.

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And had the board given any scope of protection to Fuente's standard character X mark, certainly the addition of a dot would not have been enough to distinguish it and take it out of the circle of protection that Fuente's mark was entitled.

[00:04:33] Speaker 03:
Well, I suppose it depends on how you look at the mark.

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You want to characterize it as an X with a dot on top.

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But the board found it was a stick figure.

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And so it's not just an X with a dot.

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It's a body and a head.

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And if that's the way an ordinary consumer would perceive this as a stick figure, as opposed to an X with a dot on top, why isn't that dissimilar?

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The problem, Your Honor, with what the board did is it relied solely on the stipulation to arrive at the commercial effect.

[00:05:01] Speaker 03:
Well, let's just say I don't read their decision that way, because I do think they rely on the stipulation, but they go on to say more in their decision apart from the stipulation.

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So let's just get rid of that argument and say the board found that this was a stick figure.

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And I know you would have a substantial evidence argument on that, but let's set that aside, too.

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If this is a sticks figure, isn't that dissimilar enough to defeat your case?

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No, Your Honor, it's not.

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The board didn't consider how the consumers perceive the mark.

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They didn't look at commercial impression through the eyes of the consumers, which is required under the law that you do.

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They disregarded or didn't give any weight to the fact that

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There is record evidence that shows how this mark is used in the applicant's marking materials on its product's packaging and the intention that the applicant testified about what it intended the mark to be.

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It intended the mark to be a representation of its dab X mark with the dot or the circle being a dab because that's the shape of a herbal concentrate that's placed in this machine.

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And the X bringing to mind and associating the mark with its DABX X factor, that these products are supposed to have an X factor because they're somehow cutting edge technology or on advanced technology.

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They're an evolution of the dabbing materials to the next level.

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And the board disregarded that evidence.

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And in light of that evidence, there is no substantial evidence to find that the consumers would view the marks merely as a stick figure.

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They would view it.

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as a virtual representation of the DABX mark.

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And there's no getting away from the fact that it is an X, whether it has a dot above it or not.

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There's simply no record evidence, much less substantial record evidence, that the consumers would perceive the mark as merely a sick figure.

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They would perceive it as anything other than an X with a dot over it.

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And indeed, the applicant has not been able to point to, and the board did not point to, any instance that's consumer facing.

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where the mark is referred to in any way other than as an X with a dot over it.

[00:07:04] Speaker 04:
There is nothing that shows.

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Can you just remind me of something?

[00:07:07] Speaker 04:
I don't remember.

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Is there anything in the record about people making anything of the fact that although

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there might be said to be an X in some sense, two crossed lines, that commonly the letter X has a much wider east-west angle than north-south angle.

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And their stick figure, lower southern hemisphere of it, is the reverse.

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It's a much wider north-south angle than east-west angle.

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Did that play a role in this case at all?

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No, Your Honor.

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And the reason why is that Fuente's registration is for a standard character X. And the board acknowledged that the standard character registration gives Fuente the right and the ability to protect all representations of X in any form of presentation, as long as it's recognizable as an X. And indeed, the stipulation, if we're going to pay attention to the stipulation, which our position is that it's improper to use the stipulation to assess commercial meaning of the mark, because the stipulation is not consumer facing.

[00:08:15] Speaker 00:
But if we're going to pay attention to the stipulation, we have to read it all.

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And what the board did is the board only picked out the two words, stick figure.

[00:08:22] Speaker 01:
I understand that, but I actually just found it because I knew it was there.

[00:08:25] Speaker 01:
I think the board, in a footnote, said that the stipulation is not what is dispositive, but whether the x-dot mark is similar to the Fuente's x mark.

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That's at JA 44.70.

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Footnote 70.

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Yes, Your Honor.

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And it's our run.

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So we can move away from.

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exclusive reliance on the stipulation.

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So I take your point.

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It starts with stick figure, but it mentions x at the beginning.

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But the board seems clearly not to have relied on that, and certainly not to have relied on that exclusively.

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So to the extent that the board didn't rely exclusively on the stipulation, then it was required to compare the mark in the drawing to Fuente's prior mark.

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And the mark in the drawing is a wide stylized letter x with a circle or a dot above it.

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So how would you suggest we figure this out?

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Does somebody have to give us a survey, do a survey of consumers, and say, would you be confused?

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And would you be saying, how many of you think this is a stick figure?

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I mean, what are we to do with this?

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No, Your Honor.

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What you need to do, and what you're only allowed to do, is look at the record evidence.

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And what the record evidence shows is that the applicant's intention was that the mark be representative of the mark DAB X, with the circle being the DAB and the X calling to mind

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an X factor.

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And then you look at the commercial use, what consumers would actually see.

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And what you see there is that this X with a circle over it, or X with a dot, is always used in close association with the mark DAB X. And it is used along with words such as the evolutionary pattern.

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Is that inconsistent with their assertion that this is a stick figure?

[00:10:09] Speaker 00:
Excuse me?

[00:10:10] Speaker 03:
Is that inconsistent with the assertion that this is a stick figure?

[00:10:15] Speaker 00:
Well, I don't know that it's necessarily inconsistent, but the assertion that it's a stick figure is just not simply complete, Your Honor.

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Because if I said something is a stick figure, it could be a capital letter T or a lowercase letter T with a circle or a dot above it.

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And to some people, it would look like a stick figure.

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But it doesn't take away from the fact that it's still a capital letter T that's combined with something to form a stick figure.

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And that's what's going on here, is that there is undeniably the letter X stylized.

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Yes, we acknowledge that.

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But with a dot or an X above it.

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And there's just no evidence, much less conclusive evidence, that a consumer would see that simply as a stick figure and not see the X there.

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And once you see it, the X is not so disguised.

[00:10:57] Speaker 03:
Why?

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I mean, I can't unsee this because I read your brief first and see it as an X, where you describe it with an X as a dot over it, and I see it.

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But if I'd read their brief first and they'd said this is a stick figure, I might see it as a stick figure.

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And this is a factual finding, right, whether it's a stick figure or not.

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And if the board says it's a stick figure and that's how a consumer would perceive it, then is there no substantial evidence?

[00:11:26] Speaker 00:
There's not no substantial argument.

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There is no evidence that there is anything from a consumer or consumer facing that suggests that this mark is a stick figure.

[00:11:39] Speaker 01:
Thank you.

[00:11:41] Speaker 02:
Thank you.

[00:11:51] Speaker 02:
may please the court.

[00:11:52] Speaker 02:
I'm Glenn Nuddle.

[00:11:53] Speaker 02:
I'm representing Vaporous Technologies.

[00:11:56] Speaker 02:
And in this case, I think the key here is the finder of fact was the board.

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and the facts that find that the standards is, of course, is there a substantial evidence?

[00:12:05] Speaker 03:
Well, you want to start with that last point.

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What's the substantial evidence to support a factual finding that this is a stick figure?

[00:12:12] Speaker 02:
Well, the board actually describes that.

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It spends a few pages on it.

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And it was just mentioned also that the board, their view of the dissimilarity, they wanted to look at the mark itself.

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the drawing of the mark.

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And the drawing of the mark is in the record there.

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It is the dot from the cross lines.

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And in fact, there is evidence in the record that vaporists, as they were developing this mark, they purposely flattened the X. So that would make more of a representation of arms and limbs to make it look like a dad man.

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They call him a dad man.

[00:12:49] Speaker 02:
Where is that evidence?

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That is actually mentioned in

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Funtage brief at page four, reply brief.

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It's around there.

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Lovely.

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Around there.

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Actually, it would be in the appendix around 803, 804.

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Does the board reference it, in its opinion?

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It was a deposition, potentially.

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Is it cited or relied on in the board's opinion?

[00:14:02] Speaker 02:
No.

[00:14:04] Speaker 01:
What's in the board opinion?

[00:14:07] Speaker 02:
Well, the board's opinion focused on the drawing of the mark, and what saw as the drawing.

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And it also discussed the stipulation.

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It started off with stipulations moving that it is a stake for the year.

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And at the end of the day, the board agreed that it was a stick figure when they looked at it.

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The board did not.

[00:14:28] Speaker 03:
Is it enough for the board to agree that it's a stick figure, or doesn't the board have to find that the relevant consumer would perceive it as a stick figure?

[00:14:39] Speaker 02:
The board did find the fact that the relevant consumer would perceive it as a stick figure.

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And not as a letter of statement.

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I guess the board could find them.

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And their evidence for that is they looked at it and said, this is what a consumer would perceive it as?

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That combination of looking at it, looking at the design mark, looking at the stipulation.

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Let's set the stipulation apart, because I struggle with that a little bit.

[00:15:05] Speaker 03:
I don't know that that stipulation was intended to address what a relevant consumer would see it as.

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And if that's the case, that can't be substantial evidence for the factual finding.

[00:15:15] Speaker 03:
All right.

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So your view is the board can look at this and make a factual determination on its own that this is a fake figure?

[00:15:25] Speaker 02:
Well, the board did acknowledge that it's a subjective view from their point of view.

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But they didn't just say that out of the blue.

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The board acknowledged that part of the figure is in the shape of an X. The board acknowledged that a standard character X can use its own style and even mentioned that even if it was

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If there was an X in the same style that vaporists used, it would still be transformed.

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It would still be a stick figure.

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You have to take the mark as a whole.

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and found that if you took the head off, it would be totally different.

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That the head, the dot, or the shaded circle makes all the difference in changing from what is from an X to something different, which is a stick figure.

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And again, they acknowledge that it's a similar objective.

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Is there anything in the record anywhere that's

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beyond the board's factual finding that suggests this would be seen as a consumer as a stick figure.

[00:16:28] Speaker 02:
There is no record of consumers commenting on it, consumers talking about it, nothing like that.

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So I'm a little puzzled, frankly, about what are

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our framework for this is.

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Is the board entitled to just look at a mark and say, well, this is how a consumer would perceive it without any additional evidence?

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I mean, surely the board is not necessarily the relevant consumer.

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So how can they make that factual finding without at least citing to something

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in the record.

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And if all that we have in the record is the stipulation and that was legal to rely on it for that purpose, then what do we have for substantial evidence?

[00:17:20] Speaker 03:
Well it referred to the stipulation it didn't rely on the stipulation I know but I guess what we're asking you is what did they rely on if we set the stipulation apart and Unless I'm mistaken all you pointed to me is that the board?

[00:17:36] Speaker 03:
Looked at it and said this is what a relevant consumer would be but I don't

[00:17:41] Speaker 03:
think the board can make factual findings out of the blue without some evidence.

[00:17:47] Speaker 03:
And substantial evidence is not a high burden, but it requires something beyond their subjective views, doesn't it?

[00:17:56] Speaker 02:
Yeah.

[00:17:57] Speaker 02:
What it was based on, it was based on the drawing, as seen by the board.

[00:18:00] Speaker 01:
In these cases, do they typically have surveys of consumers that enlightens the?

[00:18:07] Speaker 02:
Not typically at this stage, because this was

[00:18:10] Speaker 02:
Patent, I mean, not patent, but a trademark application.

[00:18:13] Speaker 02:
So it was an intent to use application that Mark had been on there.

[00:18:18] Speaker 01:
OK, I have a related question.

[00:18:19] Speaker 01:
But in a lot of the pictures that are included in the board's opinion, with the exception of one of the two on Appendix 23, which is just an X on black, the rest of the pictures we have, the X is kind of blended into a lot of other stuff in there.

[00:18:37] Speaker 02:
You're talking about Fuente's X?

[00:18:39] Speaker 01:
Yeah, yeah.

[00:18:40] Speaker 01:
Did the board refer to that?

[00:18:42] Speaker 01:
I mean, do you think that influenced their looking at, like, this isn't just a standalone X. It's mushed up with all this background noise and all these different colors.

[00:18:53] Speaker 01:
Did the board rely on that factor at all in its conclusion?

[00:18:57] Speaker 02:
Well, the board actually discussed that a lot, but in a different context.

[00:19:00] Speaker 02:
It was in the context of a family of marks.

[00:19:04] Speaker 02:
Fuente had originally asserted several

[00:19:08] Speaker 02:
any registrations, all of which had an X joined with something else.

[00:19:14] Speaker 02:
XFF, the labels that go on their cigars are a very fancy XFF.

[00:19:19] Speaker 02:
And the board did point out that the Mark X was used alone only a handful of times.

[00:19:27] Speaker 04:
So was that in the context of the commercial aspect of strength and the commercial strength of the X alone did not have much commercial strength for Fuentes?

[00:19:41] Speaker 02:
It was.

[00:19:41] Speaker 02:
It was exactly that.

[00:19:43] Speaker 02:
And the board, in fact, did address that.

[00:19:45] Speaker 04:
Sorry.

[00:19:45] Speaker 04:
So Ms.

[00:19:48] Speaker 04:
Karen says that there's a conceptual strength aspect and a commercial strength aspect.

[00:19:55] Speaker 04:
And as I understood, she's really relying on the conceptual strength.

[00:20:02] Speaker 04:
And for that, I think I heard her say that,

[00:20:07] Speaker 04:
There is commercial strength, significant, I'm sorry, is conceptual strength, sort of as a matter of law, because the X alone is arbitrary.

[00:20:21] Speaker 04:
Do you have any commentary on that?

[00:20:23] Speaker 02:
Yes, and the board did address that.

[00:20:26] Speaker 02:
It did address conceptual strength.

[00:20:29] Speaker 02:
The board said that the, in its holding, said that the X was afforded the strength given to any inherently distinctive mark.

[00:20:37] Speaker 02:
And that was against that conceptual strength, but the board noted that on the commercial side It was barely ever used in the last 30 years.

[00:20:46] Speaker 04:
So let me just So the word strength has two different meanings Perhaps the difference is relevant one means

[00:21:00] Speaker 04:
actually strong.

[00:21:02] Speaker 04:
The other is simply a property on a scale which can go from tiny to large.

[00:21:08] Speaker 04:
When the board said that it has, the x here has whatever strength, that is, amount of strength, whether large or small, that an inherent, that a arbitrary mark has, was it saying that the mark has a high degree of strength?

[00:21:29] Speaker 04:
that is strong because of its arbitrariness.

[00:21:33] Speaker 02:
In fact, no, the board.

[00:21:37] Speaker 04:
What is the relevant law on that point?

[00:21:41] Speaker 04:
The letter X by itself stands for almost nothing.

[00:21:46] Speaker 04:
Probably not nothing, but almost nothing.

[00:21:48] Speaker 04:
So it would be inherently arbitrary in almost all contexts.

[00:21:55] Speaker 04:
Perhaps not here, if people knew about the history of Fuentes and the

[00:22:00] Speaker 04:
secrecy of the project.

[00:22:02] Speaker 04:
So maybe it's not completely arbitrary.

[00:22:05] Speaker 04:
But is it the law that inherent arbitrariness of something as inherently meaningless as the letter X gives it great positive strength

[00:22:21] Speaker 02:
It's not.

[00:22:22] Speaker 02:
The board mentioned that it was supposed to be given the same strength as any inherently distinctive mark, and that's conceptual strength.

[00:22:30] Speaker 02:
But the board really focused mostly on the commercial strength, and the fact that over the last 30 years, in hundreds or maybe thousands of advertisements, there's only a handful of times that the X has been used alone.

[00:22:43] Speaker 02:
And so the board held that it was neither very strong nor very weak.

[00:22:49] Speaker 02:
So whatever the conceptual strength could do, it didn't seem to move the needle.

[00:22:52] Speaker 02:
The overall strength noted by the board was kind of met.

[00:23:00] Speaker 02:
That's the conclusion that the board reached.

[00:23:04] Speaker 02:
And against that conclusion, since the ordinary consumerist

[00:23:08] Speaker 02:
held by the board from their observation and then the observation.

[00:23:12] Speaker 02:
And they did admit that it's subjective and that different people could come to different conclusions.

[00:23:17] Speaker 02:
But quite frankly, that's how consumers are too.

[00:23:20] Speaker 02:
If somebody came and saw the mark, what would they see?

[00:23:24] Speaker 02:
Now, Fuente has mentioned that during development of the mark, the

[00:23:29] Speaker 02:
Vaporists had an idea that the dot, the head, could represent something called a dab, which is their product of vapors.

[00:23:40] Speaker 02:
And they thought that was pretty cool.

[00:23:42] Speaker 02:
But that was never marketed.

[00:23:43] Speaker 02:
And there's no evidence at all that it was ever marketed or that consumers have ever seen that.

[00:23:48] Speaker 02:
In fact, a consumer would have to put a lot of thought and have a lot of big ideas and be fairly sophisticated to figure that out.

[00:23:57] Speaker 02:
The fact is that the only

[00:23:59] Speaker 02:
real substantial evidence that we have is the drawing of the mark itself.

[00:24:06] Speaker 04:
I don't remember what the evidence is.

[00:24:07] Speaker 04:
I thought there was some evidence or anyway discussion of the use of this figure in conjunction with the

[00:24:17] Speaker 02:
Separate mark if that's the right term yeah, they have acts there a bx yeah, there is a mark dab accept me a dbx and the dab man mark does appear on the same products as the dab dab x mark so that is some external evidence, but I

[00:24:39] Speaker 02:
A consumer would have to figure out that.

[00:24:43] Speaker 04:
Do I take it that the other side has suggested that that affiliation in the real world is evidence that consumers would understand the mark that's at issue, the cross lines with the dot above it, as a dab with whatever thing is underneath.

[00:25:05] Speaker 02:
I think so, I think so.

[00:25:08] Speaker 02:
I would like to mention the recent Sunkiss case that Conte submitted about a week and a half ago.

[00:25:13] Speaker 02:
You're very familiar with it, more familiar with it than I am.

[00:25:16] Speaker 02:
But that case, it turned on not being substantial evidence.

[00:25:21] Speaker 02:
The board had relied on marketing evidence other than the drawing of the mark, Kiss, just Mark Kiss, where this marketing evidence apparently had lips.

[00:25:33] Speaker 02:
And the board relied on that to say, hey, its commercial impression has to do with lips.

[00:25:38] Speaker 02:
But it wasn't the mark itself.

[00:25:40] Speaker 02:
And that was inappropriate.

[00:25:41] Speaker 02:
That was error.

[00:25:43] Speaker 02:
Here, I think the same thing applies.

[00:25:45] Speaker 02:
We should be relying on the drawing itself.

[00:25:49] Speaker 02:
And that's more important and better evidence than external evidence.

[00:25:53] Speaker 02:
Now, really, the only evidence that the board did not expressly talk about

[00:26:00] Speaker 02:
was this hidden meaning of the head or the dot possibly representing a dad.

[00:26:06] Speaker 02:
Everything else, the fact that there's an X in the mark, the board addressed that.

[00:26:10] Speaker 02:
The fact that you can change the style, the board addressed that.

[00:26:14] Speaker 02:
And the board obviously put itself in the eyes of the consumer.

[00:26:19] Speaker 02:
It had a subjective view, and it made that subjective determination.

[00:26:24] Speaker 02:
But frankly, there's no evidence to the conduit.

[00:26:27] Speaker 02:
And so in our view, then, there are substantial elements to support the board's positions.

[00:26:32] Speaker 01:
Just for my own curiosity, on the point of saying they're the same consumers, cigars and vapor as your product, there was no dispute about that, right?

[00:26:43] Speaker 01:
Everybody agreed that these are all the market of smokers, and that's the same?

[00:26:48] Speaker 01:
Or was there a dispute that was resolved by the board as to who the relevant market should be?

[00:26:53] Speaker 02:
Well, the dispute there has to do with

[00:26:55] Speaker 02:
the strength of our presumption.

[00:26:58] Speaker 02:
Now, it smokers because it's basically presumed to all go together.

[00:27:03] Speaker 02:
It doesn't reflect reality, but we realize that in case law, it doesn't always reflect reality in this mood.

[00:27:14] Speaker 02:
But our position is that since it doesn't reflect reality at all, that it shouldn't be given much weight, that particular factor.

[00:27:22] Speaker 01:
OK, thank you.

[00:27:23] Speaker 02:
Thank you.

[00:27:35] Speaker 00:
I'm happy to address any questions that the board might have.

[00:27:39] Speaker 03:
So I'm still struggling with how much authority the board has to look at a mark and say this is dissimilar.

[00:27:49] Speaker 03:
And they must have some, right?

[00:27:51] Speaker 03:
So instead of an X with a circle, you have a Y with a circle.

[00:27:56] Speaker 03:
and it would have three of the four arms and legs, but not the four.

[00:28:01] Speaker 03:
Could the board just look at that and say, well, this is so dissimilar because it's not an X. It's still maybe some kind of stick figure without a limb, but it's not dissimilar because it's a Y instead of an X. Do they need any evidence beyond that to say these two are dissimilar?

[00:28:23] Speaker 00:
Yes, Your Honor, they do.

[00:28:24] Speaker 00:
First of all, the board is required to consider a number of factors in assessing this.

[00:28:27] Speaker 03:
OK, let me back up.

[00:28:30] Speaker 03:
Let's look at this narrowly, though.

[00:28:32] Speaker 03:
Can they say an ordinary consumer looking at an X versus a Y with a dot over it would not find those dissimilar?

[00:28:42] Speaker 03:
Can they just rely on the drawing itself?

[00:28:45] Speaker 00:
No, Your Honor, they can't.

[00:28:46] Speaker 00:
As this court decided in Duopro versus environmental medical,

[00:28:51] Speaker 00:
if the commercial impression that the mark conveys must be viewed through the eyes of the consumer.

[00:28:57] Speaker 03:
Yeah, but my hypothetical has them looking, saying this is how, because it's a Y instead of an X, a consumer, they're doing it from the right lens.

[00:29:08] Speaker 03:
Legally, they're correct.

[00:29:09] Speaker 03:
The consumer would not perceive this.

[00:29:12] Speaker 03:
And so that's correct legally, but your view is there has to be some independent piece of evidence to corroborate that factual finding?

[00:29:21] Speaker 00:
Yes, Your Honor, like in the Duo Pro case where the board failed to cite any evidence indicating how a consumer would perceive the mark.

[00:29:26] Speaker 03:
I guess what I'm getting at is can the mark itself be evidence?

[00:29:33] Speaker 00:
Well, the market itself can be evidence of a similarity, of visual similarity, but not a commercial impression similarity.

[00:29:38] Speaker 00:
That has to be viewed through the eyes of the consumer.

[00:29:41] Speaker 00:
So what does the evidence consist of?

[00:29:43] Speaker 01:
Surveys?

[00:29:43] Speaker 01:
Surveys of consumers in the real world market?

[00:29:48] Speaker 00:
The consumer-facing materials, just like in Sanquist, where the board and then the court assessed what the consumers actually saw.

[00:29:54] Speaker 00:
Now, in that case, there was a question about whether consumers saw the material that was relied upon.

[00:29:58] Speaker 00:
But in this case, there's no question.

[00:30:00] Speaker 00:
The website, the product packaging,

[00:30:02] Speaker 00:
and the product advertisements are consumer facing.

[00:30:05] Speaker 00:
And the board didn't look at those materials.

[00:30:07] Speaker 00:
They didn't cite those materials in evaluating the commercial question.

[00:30:11] Speaker 03:
I'm not so much concerned about what the board you think didn't look at.

[00:30:13] Speaker 03:
I'm concerned about whether the mark itself can be substantial evidence for a finding on dissimilarity.

[00:30:21] Speaker 03:
And it seems to me that it has to be able to be evidence.

[00:30:24] Speaker 03:
I mean, if you came in with something, I mean, a picture of Snoopy and said, well, this is similar to our X mark, the board can look at those two things and say, no, they're not similar, right?

[00:30:38] Speaker 00:
But then that suggests the visual similarity, Your Honor.

[00:30:40] Speaker 00:
And the court can properly make it.

[00:30:42] Speaker 03:
But isn't that finding a visual similarity, if it's found that it's visually dissimilar, enough to support a finding that a consumer wouldn't perceive them the same way?

[00:30:54] Speaker 03:
What you're getting at is something I don't think we've ever required, and it seems like it would be your burden anyway, is some kind of evidence on what the consumer would perceive.

[00:31:05] Speaker 00:
For a conclusion on the consumer oppression, it is required.

[00:31:09] Speaker 00:
You have to look at that.

[00:31:10] Speaker 00:
The board can properly make its own determination on the visual similarities.

[00:31:14] Speaker 00:
But the board has to assess visual, sound, connotation of the marks.

[00:31:18] Speaker 03:
The board can't make an inference from something that's so completely visually dissimilar that a consumer would never confuse these?

[00:31:26] Speaker 00:
That would be visual similarity, Your Honor, but not commercial impression.

[00:31:29] Speaker 00:
The board cannot impose its own view of the commercial impression of the mark.

[00:31:33] Speaker 00:
It has to look at the relevant consumer.

[00:31:35] Speaker 00:
And that's the law that was established by this court in the duo pro Meredith Court versus environment medical devices case.

[00:31:44] Speaker 01:
Time's up.

[00:31:44] Speaker 01:
Thank you.