[00:00:00] Speaker 01:
The next case for argument is 24-1220, Inouye Jackson, Brooklyn. May it please the Court.

[00:00:11] Speaker 00:
The issue on appeal in this case is whether or not the term sorrel, S-O-R-E-L, in a stylized, non-distinctive format, is generic for the goods identified in the application as sorrel, S-O-R-R-E-L.

[00:00:28] Speaker 01:
What is the pronunciation? Because I don't know if that would make a difference in this case. Is...

[00:00:33] Speaker 01:
the generic term Sorrel and is the stylized mark Sorrel? I mean, is there a different pronunciation between the two?

[00:00:42] Speaker 00:
Well, appellant in this case certainly argued that the term that they've applied to register is pronounced differently. But as this court has pointed out... Pronounced how? Sorrel? So I think that the way that appellant pronounced it is he's They said that their term sorrel rhymes with morel like the mushroom. That's the analogy that they used. And then the good sorrel rhymes with the word moral is the way that they've described it.

[00:01:08] Speaker 00:
But to your question, Judge Prost, the pronunciation doesn't matter. As this court recognized in Viterra, there is no correct way necessarily to pronounce a mark, and oftentimes consumers will pronounce a mark differently than the way the trademark owner intended it to be pronounced.

[00:01:27] Speaker 01:
Well, what if they had put an E at the end of sorrow?

[00:01:32] Speaker 01:
I mean, you're right. I mean, these two, but you're missing an R in the mark.

[00:01:38] Speaker 01:
and what if it had an E at the end?

[00:01:41] Speaker 00:
You know, certainly that's not... Does it matter, right?

[00:01:43] Speaker 01:
Do they matter?

[00:01:45] Speaker 00:
I don't think that that would matter, Your Honor. I think that in that case, you know, there would still be a strong argument that the term would be generic because, you know, you're talking about four letters essentially being the same, and while there might be an E at the end and one R missing, I think that... But that would be something for the Board to inquire into. Certainly, certainly, but... As I said, that is not the case here. The term that applicant applied to register a SOREL, S-O-R-E-L, with no E on the end.

[00:02:20] Speaker 01:
The appellant who is not arguing today, but who we have as brief, and he seems to emphasize that his product is the first shelf-stable version of the beverage. Does that matter? Does that impact the board's analysis in this regard?

[00:02:36] Speaker 00:
No. No, it does not, Your Honor.

[00:02:40] Speaker 00:
As just a general trademark principle when it comes to generic terms, being the first person to invent a product or to enter a market doesn't guarantee you any trademark rights. The ultimate standard is what is the primary significance of that term to consumers. And the reason why being the first person in the market is generally not relevant is is because if that was something that weighed in favor of granting trademark rights, then you ultimately end up taking this word away from potential future competitors who would need that word to be able to describe their product.

[00:03:17] Speaker 00:
And so I think going as far back as at least 1987, and Merrill Lynch, this court, specifically said that being a new user or the first person in the market is not something that can defeat genericism and is generally not a relevant consideration.

[00:03:32] Speaker 01:
And what if the appellant were selling couches?

[00:03:36] Speaker 01:
If the appellant was selling... Were selling couches.

[00:03:38] Speaker 00:
Couches? Under this... Oh, that's a very different case, Your Honor, right? Very different case, because in that context, you would be talking about, on the one hand, this drink, and on the other hand, furniture that people sit on in a house. So I think that the goods in that case would be very far afield from each other, and there are decisions from this court where You can have an identical mark. You can have a virtually identical mark. And as long as the goods are sufficiently disparate or unrelated, there is no likelihood of confusion issue there or any kind of issue in that regard.

[00:04:18] Speaker 01:
And the public here that we were looking at?

[00:04:22] Speaker 00:
So, you know, appellant in their reply brief, you know, kind of makes this argument that the USPTO somehow misdefined the relevant public.

[00:04:33] Speaker 00:
I don't entirely understand appellant's argument, but what I glean from it is essentially what appellant is suggesting is that the USPTO, and really the examining attorney, in citing the case law for the proposition of who the relevant public is to assess whether or not a term is generic. Rather than quoting from the authority that the examining attorney cited, the examining attorney just kind of gave a summation of the principle in the examining attorney's own words and said that consumers or purchasers. And it seems like appellant has latched on to that word consumer and suggested that somehow consumers The USPTO is trying to mislead with that standard.

[00:05:13] Speaker 00:
But the fact of the matter is, consumer is often a synonym for purchaser in the context of trademark law. And also, if you look at, I think it's the sentence right after the sentence that appellant complains about in the... Do you have the page number? I think that this is on page 505.01 of the appendix. And so...

[00:05:36] Speaker 00:
To the extent that the appellant is trying to argue that the USPTO misquoted an authority, that did not happen. The USPTO simply used a synonym for purchaser. And if you look at the actual office action at issue and the board's decision, the board is very clear that the relevant public here are the relevant purchasers, which includes purchasers of the goods and prospective purchasers of the goods.

[00:06:00] Speaker 00:
And the court doesn't have any more questions. I'm happy to yield the rest of my time.