[00:00:00] Speaker 04:
The first case for argument this morning is 19-1-1-5-0, Galberti Inc.

[00:00:06] Speaker 04:
versus Galberti SRL.

[00:00:09] Speaker 04:
Mr. Davis, whenever you're ready.

[00:00:16] Speaker 03:
Yeah, please, the court.

[00:00:17] Speaker 03:
This appeal arises from a final decision of the Trademark Trial and Appeal Board and a cancellation action in which the parties each claim protectable rights to the same mark, namely Galperty, for metal flanges and closely related items.

[00:00:31] Speaker 03:
The board dismissed appellant's petition for cancellation despite appellant's showing of trademark, service mark, and trade name use predating the constructive priority date associated with appellee's registration and despite appellant's showing

[00:00:46] Speaker 03:
that APLE procured its registration through a fraudulent claim under Section 2F of the Lanham Act of substantially exclusive and continuous use of its mark.

[00:00:55] Speaker 03:
in the five years immediately preceding that claim.

[00:00:59] Speaker 04:
Can I take you to that third issue to begin?

[00:01:02] Speaker 04:
Certainly, Your Honor.

[00:01:08] Speaker 04:
It's a very hard burden to establish fraud.

[00:01:11] Speaker 04:
So what, in your view, did the board do wrong in its analysis of the fraud issue?

[00:01:18] Speaker 03:
Well, for one thing, Your Honor, in this case, there is no dispute that the Section 2F claim is not facially standing on its own.

[00:01:30] Speaker 03:
When Appellee's prosecution counsel represented that the applied form arc had been in use for five years, he referred the examiner to the declaration of Dina Galperti

[00:01:45] Speaker 03:
for the necessary sworn verification.

[00:01:49] Speaker 03:
But that declaration does not contain a verification.

[00:01:55] Speaker 03:
Now, in Bose, this court held that cancellation for fraud is appropriate if, during the application process, a registrant makes a false representation with knowledge of its falsity

[00:02:07] Speaker 03:
That representation is material in the registrant intended to deceive the PTO.

[00:02:12] Speaker 04:
But here, her statement deals with a knowledge that the Texas stuff was in the marketplace.

[00:02:21] Speaker 04:
And I think the board concluded that statement doesn't make her claim of exclusivity per se false.

[00:02:28] Speaker 04:
Do you disagree with that conclusion?

[00:02:30] Speaker 03:
Your Honor is correct as to what the board determined.

[00:02:33] Speaker 03:
So the board's error in this case lay with its evaluation of the falsity prong of the analysis.

[00:02:41] Speaker 03:
Now, in doing so, the board relied upon this court's opinion and L.D.

[00:02:45] Speaker 03:
Kickler for the proposition that substantially exclusive use admits to some other party's uses.

[00:02:53] Speaker 03:
And that is certainly true.

[00:02:55] Speaker 03:
That is certainly something you can find in L.D.

[00:02:57] Speaker 03:
Kickler.

[00:02:58] Speaker 03:
But the court in that case did not reach such a holding as a blanket proposition.

[00:03:03] Speaker 03:
Instead, it merely vacated the district court opinion and remanded the matter with instructions to consider whether there had been, quote, significant prior use.

[00:03:15] Speaker 03:
And it's on that issue that the board erred, because the board conducted no inquiry whatsoever

[00:03:22] Speaker 03:
into the significance of the use in the record.

[00:03:25] Speaker 02:
You want the same relief that was granted in the other case.

[00:03:28] Speaker 02:
You want to force the board to look at your evidence of use during that five-year time period, correct?

[00:03:35] Speaker 02:
That is true, Your Honor.

[00:03:36] Speaker 02:
It's as simple that there was no vermin by your opponent saying, we have substantial, exclusive use in the five-year period.

[00:03:45] Speaker 02:
And the question is, is that true or false, right?

[00:03:48] Speaker 03:
Your Honor, that is certainly true as a factual matter here.

[00:03:51] Speaker 03:
where the board erred was not conducting the inquiry into the significance at all.

[00:03:56] Speaker 02:
Well, that's what I'm saying.

[00:03:56] Speaker 02:
You want to look at the so-called false statement, right, is the statement by their side that they had substantial, exclusive use in the five-year period.

[00:04:08] Speaker 03:
That's correct, Your Honor.

[00:04:09] Speaker 02:
And you're saying, so the question is, is that statement true or false?

[00:04:13] Speaker 02:
And how do you know if the statement is true or false if they don't look at the evidence you put in for your side's use during that period?

[00:04:20] Speaker 03:
That is correct, Your Honor.

[00:04:21] Speaker 04:
So you've alleged that they did not have substantial use.

[00:04:25] Speaker 04:
Are you alleging that you had substantial exclusive use of the mark?

[00:04:30] Speaker 04:
What's the allegation here with respect to fraud?

[00:04:32] Speaker 04:
Where is the fraudulent allegation in what she said?

[00:04:36] Speaker 03:
Okay, Your Honor, Section 2F requires a sworn impairment of substantially exclusive and continuous use.

[00:04:44] Speaker 03:
So the issue here is whether it is the accuracy of the representation of substantially exclusive use.

[00:04:52] Speaker 03:
And again, this court has held in Keckler that that analysis cannot be undertaken in a vacuum.

[00:04:59] Speaker 03:
You have to look at the significance of the use that was out there.

[00:05:03] Speaker 04:
So your allegation is that they did not have substantial exclusive use.

[00:05:08] Speaker 03:
That is correct, Your Honor.

[00:05:10] Speaker 04:
And you would also, that's not enough for fraud by any means, right?

[00:05:14] Speaker 03:
Your Honor, what we're talking about is only the falsity prong of the fraud analysis.

[00:05:20] Speaker 03:
The board did not reach the issue of appellee's cienter in filing the statement.

[00:05:25] Speaker 03:
And your view is that it should?

[00:05:27] Speaker 03:
It should, but because it stopped the analysis at falsity, it did not do so.

[00:05:34] Speaker 04:
Well, you have to do something before you get to cienter, right?

[00:05:37] Speaker 04:
I mean, you would still have to establish that the statement was inaccurate.

[00:05:43] Speaker 03:
That is correct, Your Honor.

[00:05:44] Speaker 03:
And again, under this Court's opinion in LD Kichler, falsity cannot be evaluated unless it takes into account the significance of the other uses.

[00:05:55] Speaker 03:
And that is an analysis that the Board did not undertake in this case.

[00:05:59] Speaker 03:
The Board's opinion more or less quotes LD Kichler, and then it ends very abruptly.

[00:06:06] Speaker 02:
What was the exact language in the Board's opinion?

[00:06:10] Speaker 02:
You recall?

[00:06:17] Speaker 03:
On the issue of falsity?

[00:06:18] Speaker 02:
No, on why they rejected or they turned you down on the falsity.

[00:06:24] Speaker 03:
Well, Your Honor, the exact language is difficult to pen down except for the fact that the Board indicated that substantially exclusive use admits to other uses.

[00:06:41] Speaker 03:
So again, the Board did not consider the magnitude

[00:06:44] Speaker 02:
No, I understand.

[00:06:45] Speaker 02:
I'm just looking for the phrase that was used and clocked out of the other case.

[00:07:01] Speaker 03:
I believe the closest answer to your honest question can be found at page 59 of the board's appendix page 59.

[00:07:09] Speaker 02:
The board says... It doesn't make it per se false.

[00:07:12] Speaker 02:
Right.

[00:07:13] Speaker 02:
Yes.

[00:07:14] Speaker 03:
I think that is the beginning and the end of the analysis, simply that LD Keckler makes clear the five years of use does not have to be exclusive.

[00:07:29] Speaker 02:
So I just understood your argument to say that you put in evidence in front of the board what you consider to be quite a considerable amount of prior use of the mark by your client in that five-year period.

[00:07:42] Speaker 02:
And you would like to have the board look at that to see whether or not that shows that the statement by your adversary that it had substantial increasing use is not true.

[00:07:51] Speaker 03:
That is correct, Your Honor.

[00:07:52] Speaker 03:
That inquiry cannot be undertaken.

[00:07:55] Speaker 02:
Right.

[00:07:55] Speaker 02:
That's very simple, not very complicated problem that you have.

[00:08:00] Speaker 02:
We would like the board to assess your evidence.

[00:08:03] Speaker 03:
That is correct, Your Honor.

[00:08:07] Speaker 03:
Again, under the test mandated by this court,

[00:08:13] Speaker 04:
You want to go back to what I think is your first argument, which rests heavily on an interpretation of converse or converse case.

[00:08:22] Speaker 03:
Certainly, Your Honor.

[00:08:28] Speaker 03:
The board did not have the benefit of this court's opinion in converse, which issued two months after

[00:08:33] Speaker 03:
the board's final decision.

[00:08:35] Speaker 04:
I know, but I will tell you, so maybe this will give you some guidance on which way to go.

[00:08:38] Speaker 04:
I don't get why you think converse governs this case.

[00:08:43] Speaker 04:
And I think your reading of converse may be overly broad.

[00:08:48] Speaker 04:
As I understand your reading of converse, it doesn't seem to me there'd be any benefit in ever claiming priority to a foreign applicant.

[00:08:55] Speaker 04:
And I don't understand the language of the act, how that can be right.

[00:09:00] Speaker 03:
Okay, Your Honor, the issue is not necessarily, I don't believe Section 66A is implicated in this case.

[00:09:07] Speaker 03:
This is simply, the propositions here would apply to any applicant in the U.S.

[00:09:16] Speaker 03:
It is the case in Converse that that panel noted, I'll quote here.

[00:09:21] Speaker 03:
This is on page 1118 of the opinion.

[00:09:24] Speaker 03:
Our opinion is clarifying and in some ways changing the legal landscape with respect to proving secondary meaning.

[00:09:32] Speaker 03:
Right.

[00:09:33] Speaker 04:
This case isn't about secondary meaning.

[00:09:35] Speaker 04:
And Converse was entirely about secondary meaning, right?

[00:09:38] Speaker 03:
Yes.

[00:09:38] Speaker 03:
And Converse is also about the priority date that attaches to a registration issuing under Section 2F of the Act.

[00:09:50] Speaker 03:
And at Converse, this court held, the registration and company presumption of secondary meaning operate only prospectively from the date of registration.

[00:09:59] Speaker 04:
So the registrant in that case did not enjoy... Was there any claim of priority in Converse, which is precisely the issue we've got before us here?

[00:10:07] Speaker 03:
Not priority in the sense that we have here, but in terms of priority rights in the infringement context.

[00:10:14] Speaker 03:
That's exactly what was at issue in Converse.

[00:10:17] Speaker 04:
Right, and that's different from the issue before us, right?

[00:10:21] Speaker 03:
It is different only in the sense that one involved an infringement action before the ITC, and of course this case involves a cancellation action before the board.

[00:10:31] Speaker 03:
But Section 7C, on its face or in interpretations of it, neither lends itself nor contemplates that a registration can have two separate priority dates.

[00:10:41] Speaker 03:
Suppose, for example, in this case that the board is correct that the proper priority date is September 28, 2006.

[00:10:49] Speaker 03:
Yet, if the appellee in this case subsequently secures the initiation of an ITC action, its priority date under converse will not be until April 15, 2008.

[00:11:01] Speaker 03:
That suggests that either the board is mistaken in this case or this court was mistaken in converse

[00:11:09] Speaker 03:
And if this court is at stake in converse, so too are the courts issuing the other opinions cited in pages 20 through 21 of our principal brief and pages 2 through 4 of our reply brief.

[00:11:26] Speaker 03:
And with very few exceptions, the cases cited by Appellee on pages 25 through 31 of its responsive brief address an issue that's not in dispute in this case.

[00:11:36] Speaker 03:
Appellant doesn't argue, as appellee suggests, that appellant bears the burden of persuasion on the issue of priority.

[00:11:44] Speaker 03:
We acknowledge that we must demonstrate rights predating the constructed priority date.

[00:11:49] Speaker 03:
The issue is simply what that priority date is.

[00:12:07] Speaker 03:
Then with respect to the weight of the evidence of priority, the board erred in other respects as well, beginning with its conclusion that the parties did not try the issue of prior trade name rights by implied consent.

[00:12:20] Speaker 03:
This is an issue as to which the board ruled on a sua sponte basis and not at the imitation of the ampelle.

[00:12:27] Speaker 03:
And the board's refining on this issue rested solely on a discovery objection and a relevancy objection to the introduction of evidence.

[00:12:37] Speaker 03:
But that's not the test for trial by implied consent.

[00:12:41] Speaker 03:
Neither party in this case has identified potentially controlling authority from this circuit, but both parties have cited to in Ray Crawford from the First Circuit, which holds that a party can give implied consent to the litigation of an unpleaded issue in one of two ways, by effectively engaging the claim or by acquiescing during trial to the introduction of evidence bearing on that issue.

[00:13:07] Speaker 03:
And here, there is no dispute that Appellee vigorously litigated the significance of Appellant's evidence of prior trade name usage.

[00:13:14] Speaker 03:
And Appellee did not at any point object to the introduction of that evidence as it came into the record at trial.

[00:13:22] Speaker 04:
Now, you're running through your rebuttal time.

[00:13:27] Speaker 04:
So do you want to hear from the other side?

[00:13:30] Speaker 04:
Yes, sorry.

[00:13:30] Speaker 04:
Thank you.

[00:13:41] Speaker 01:
Good morning, Your Honors.

[00:13:42] Speaker 01:
May I please record?

[00:13:45] Speaker 01:
I'm Paolo Strino, of Gibbons, Council for Appellee.

[00:13:50] Speaker 01:
In this matter, there is, in our view, substantial evidence supporting the board's finding that appellant failed to show by preponderance evidence a priori in life to confusion.

[00:14:07] Speaker 01:
And there is also substantial evidence supporting

[00:14:10] Speaker 01:
the board finding the appellant failed to show fraud by clear and convincing evidence.

[00:14:15] Speaker 04:
Can we start with the fraud question, as we did with your friend on the other side?

[00:14:19] Speaker 04:
And so the question is whether the, not that the board was wrong in its conclusion.

[00:14:26] Speaker 04:
We haven't gotten there yet.

[00:14:27] Speaker 04:
But it's simply that the board really truncated the analysis that was necessary and maybe misunderstood what we were saying in Kishlar.

[00:14:37] Speaker 01:
Because it does seem that your friend is correct on page 59 the board's conclusion Was simply that the statement was not per se false sure I disagree with that interpretation In as much as the interpretation of Kishler or the interpretation of what the board said not interpretation of that appellant is proposing of the

[00:14:59] Speaker 01:
the board's order falling short with regard to that analysis the The board says her knowledge of other players and by her knowledge refers.

[00:15:09] Speaker 04:
Are we on appendix 59?

[00:15:11] Speaker 01:
Yes, we are on appendix 59.

[00:15:13] Speaker 01:
Other place in the marketplace does not make September 26 27 a workman of substantial excuse use of the Golbert mark Percy Falls

[00:15:22] Speaker 01:
But with regard to appellant's allegation that the board failed to conduct a more thorough analysis on the issue of the intent, I want to point out that in our view, the board is constrained in this analysis to the body of evidence that was producing record for the board's consideration.

[00:15:45] Speaker 01:
We offer, a police offer,

[00:15:47] Speaker 01:
as his testimonial witnessed, in this case, the same individual that appellant charges with the claim of having made a false fraudulent declaration under 2f.

[00:16:00] Speaker 01:
And it was appellant's burden to elicit testimony on that issue.

[00:16:03] Speaker 01:
Appellant failed to elicit any kind of cross-examination on the issue of intent, essentially took for good the word of the declarant.

[00:16:14] Speaker 01:
And there is no other indication.

[00:16:15] Speaker 01:
So with regard to appellant's contention

[00:16:17] Speaker 01:
that the client had essentially made a false avertment on material fact.

[00:16:24] Speaker 01:
I mean, you know.

[00:16:25] Speaker 04:
But you agreed the legal standard under Kirchler does not begin and end with a conclusion that it wasn't per se false, right?

[00:16:33] Speaker 04:
The legal standard.

[00:16:34] Speaker 04:
The board should have evaluated Texas' use of the mark, whether it was inconsequential or infringing.

[00:16:45] Speaker 04:
or whether it was significant enough to render her statement false.

[00:16:50] Speaker 04:
Do you agree with that interpretation of the cursor?

[00:16:52] Speaker 01:
The short answer is, in my view, there is no conceivable circumstance under which the board has not evaluated the evidence.

[00:17:00] Speaker 01:
The entirety of the case was predicated on this alleged substantial body of evidence on the use

[00:17:07] Speaker 04:
You know, I'm not quibbling with that.

[00:17:09] Speaker 04:
I mean, the board did a very thorough job, and certainly on most issues, I think thorough enough to easily withstand substantial evidence review.

[00:17:16] Speaker 04:
But my question is under the application of the law.

[00:17:20] Speaker 04:
Was all under Kershler the board had to do was say that the use of the mark was per se false?

[00:17:29] Speaker 04:
Do you agree that that's the only test and the only thing the board should have looked at in reaching its legal conclusion?

[00:17:34] Speaker 01:
The board needs to find whether

[00:17:36] Speaker 01:
under Kichler, the alleged use by third party is either infringing or inconsequential.

[00:17:45] Speaker 01:
And there is substantial citation to that case by the board.

[00:17:51] Speaker 01:
So inasmuch as the board has not specifically restated in different paragraphs that test,

[00:17:59] Speaker 01:
I think it's immaterial with regard to the board analysis.

[00:18:02] Speaker 01:
The board has had the opportunity of evaluating this.

[00:18:05] Speaker 04:
No, no, no.

[00:18:05] Speaker 04:
I'm not talking about the test.

[00:18:06] Speaker 04:
I'm talking about what the board's conclusion was.

[00:18:12] Speaker 04:
You know, their conclusion, I think we all agree that their conclusion with regard to evaluating all the evidence, all they said was the sentence that you quoted on Appendix 59.

[00:18:24] Speaker 04:
Am I wrong?

[00:18:26] Speaker 04:
Did they reach some other conclusion with respect to the evidence?

[00:18:32] Speaker 01:
Well, they reached conclusion that the evidence that had been provided by Appellant throughout the course of the proceeding were essentially insufficient to establish priority.

[00:18:41] Speaker 01:
In that sense, it should be at least reasonably inferred that the board has spent significant amount in its opinion in discussing the evidence by appellant with regard to its use.

[00:18:54] Speaker 01:
Sure.

[00:18:54] Speaker 04:
And we're not talking now about the priority issue, because I'm not

[00:18:57] Speaker 04:
quibbling with you on that.

[00:18:59] Speaker 04:
But I'm just talking about this outlook, whether they did enough in their analysis and conclusions with regard to the fraud.

[00:19:07] Speaker 04:
And not that your friend is necessarily going to win on that, not underestimating the high burden that he would have to establish on fraud.

[00:19:15] Speaker 04:
But it's just what seems to be missing for me is a conclusion that covers something other than this per se false.

[00:19:24] Speaker 01:
Well, this might be, again, an appellant's interpretation.

[00:19:28] Speaker 01:
But my interpretation of the board's decision is that there are a number of elements for which appellant has that high burden of proof.

[00:19:38] Speaker 01:
There needs to be a material misrepresentation of fact.

[00:19:41] Speaker 02:
How can we be sure that the board measured the amount and quality of your adversary's use evidence?

[00:19:51] Speaker 02:
Because if there were a statement

[00:19:54] Speaker 02:
Now, in the opinion that said we have considered the evidence offered by Galperty, Texas, of prior use in the five-year period and find that it doesn't upset the argument that there was substantial explosive use by the other party.

[00:20:14] Speaker 02:
That sentence is missing.

[00:20:16] Speaker 01:
Well, again, in our opinion, the entirety of the case revolves around those alleged evidence.

[00:20:23] Speaker 01:
third-party use, in this case used by a palant, inasmuch as the board did not restate having considered those evidence in that second portion of its opinion.

[00:20:37] Speaker 04:
So point as to what else in the opinion you think, even if it's elsewhere, a conclusion by the board that satisfies what we think may be lacking.

[00:20:50] Speaker 01:
Yes, there are a number of sentences.

[00:20:52] Speaker 01:
in which the board says we have not considered the evidence in isolation.

[00:20:56] Speaker 01:
We have considered them overall.

[00:20:58] Speaker 01:
There is a list of evidence that are first summarized in the initial part, but they are also specifically mentioned.

[00:21:08] Speaker 02:
Can you point to a specific page?

[00:21:10] Speaker 01:
I'm trying to sort through the pages.

[00:21:47] Speaker 01:
Okay, I think this is page 45 going on.

[00:21:59] Speaker 02:
We're on 45.

[00:22:02] Speaker 01:
And?

[00:22:03] Speaker 02:
Middle of the page, we're on 45.

[00:22:08] Speaker 01:
Yes, it discusses the habit.

[00:22:10] Speaker 01:
Although the boards take the position that none of the evidence has been considered in isolation, he also articulates

[00:22:16] Speaker 01:
Specifically for the record, some of the evidence.

[00:22:18] Speaker 02:
I'm looking at page 45.

[00:22:20] Speaker 02:
Is that the page you cited?

[00:22:24] Speaker 01:
It essentially starts with 45, but the least starts around page.

[00:22:29] Speaker 02:
Where do I start on 45?

[00:22:31] Speaker 02:
It's got about 28 lines on it.

[00:22:37] Speaker 01:
Maybe I'll point perhaps instead the court starting at page 46, where in the second to last paragraph,

[00:22:45] Speaker 01:
The board's opinion recites as further evidence of the Golbergian marks and variation thereof.

[00:22:51] Speaker 01:
Petition relies on the following as summarized below.

[00:22:54] Speaker 01:
And in the following pages.

[00:22:56] Speaker 02:
What's in the middle of the page on 46?

[00:22:59] Speaker 01:
It's a second to last paragraph from page 46 of the board's opinion.

[00:23:09] Speaker 02:
Second to last paragraph.

[00:23:18] Speaker 00:
So that suggests it's summarizing the evidence petitioner relied on, right?

[00:23:26] Speaker 01:
That's correct.

[00:23:26] Speaker 00:
So it's not making a fact-finding about that evidence.

[00:23:29] Speaker 00:
And then when you get to the end of the list of bullet point evidence, it says we've considered the totality of testimony and all the aforementioned evidence and find that petitioners failed to demonstrate priority.

[00:23:42] Speaker 00:
So is that the same fact finding that you think they need to make in this fraud inquiry that this evidence fails to establish priority?

[00:23:53] Speaker 00:
Is that the same as substantial exclusive and continuous use?

[00:23:58] Speaker 00:
Is that good enough?

[00:23:59] Speaker 00:
And if so, why?

[00:24:03] Speaker 01:
As a matter of legal standard, it is clear that the board was addressing that evidence, at least with regard to how it expressed

[00:24:12] Speaker 01:
its analysis in the opinion with regard to the priority and likely confusion.

[00:24:15] Speaker 01:
So in this section, it's not addressed with regard to the question of the system.

[00:24:20] Speaker 00:
But what the board says is this evidence doesn't establish priority.

[00:24:25] Speaker 00:
I don't understand how that is satisfying the obligation of the board to look at intent and materiality in the fraud context.

[00:24:38] Speaker 01:
Well.

[00:24:38] Speaker 01:
I do not necessarily agree with the fact that the board did not look into that.

[00:24:44] Speaker 00:
Well, they may have, but they didn't give us any particularized fact findings that would allow us to say, ah, yes, you got it right.

[00:24:52] Speaker 00:
They just reached a conclusion.

[00:24:56] Speaker 01:
Well, the board, again, discussed Kichler, made a citation to the case, discussed the requirements of Kichler, and in that section.

[00:25:05] Speaker 02:
So the board concluded that there was no prior

[00:25:07] Speaker 02:
No prior prior to had many prior use for priority purposes, correct?

[00:25:12] Speaker 02:
That's correct, right?

[00:25:13] Speaker 02:
And so how many uses does it take to establish priority only one right?

[00:25:20] Speaker 02:
Well, not necessarily at least I'm trying to get it in the law if you were trying to if you're trying to establish that you had had prior use in Order to establish somebody didn't have priority well, I could you succeed on just showing one prior use and

[00:25:36] Speaker 01:
I don't necessarily think a single prior use would be capable of establishing prior use.

[00:25:39] Speaker 02:
What I'm trying to get at is that your argument is, I think, at the end, that the answer on the fraud issue is that they didn't put in any evidence of prior use in the five-year period.

[00:25:55] Speaker 01:
Well, our argument is that whatever evidence of use they provided throughout the proceeding does not raise to a point of defeating the statement that there was substantial exclusive use when it's looked through the lenses of culture, which allows for infringing and some form of- Let me ask the question this way.

[00:26:22] Speaker 02:
Is the evidence that was tendered

[00:26:25] Speaker 02:
to show prior use in the five-year period on the

[00:26:35] Speaker 01:
There was no other evidence with regard by a parent.

[00:26:38] Speaker 02:
The answer to that question is yes or no.

[00:26:39] Speaker 02:
And then the other side will get a chance to answer as well.

[00:26:43] Speaker 01:
My answer is there was no other evidence provided by a parent in which he would attempt to rely on one hand to show evidence with regard to priori and different evidence with regard to fraud.

[00:26:55] Speaker 01:
It is the same evidence.

[00:26:58] Speaker 02:
Well, then your argument is the evidence for priority was rejected, saying you failed to show a use.

[00:27:05] Speaker 02:
Well, if it only took one use for priority purposes and the board said you didn't establish priority, then it means there were no uses in the board's assessment of Texas's evidence, right?

[00:27:17] Speaker 01:
Well, my argument is, on these records,

[00:27:22] Speaker 01:
We can certainly not infer that the board has not considered those evidence.

[00:27:27] Speaker 01:
Because those evidence have been considered, because those are all the evidence that have been provided by appellant, whether in support of his priority claim or in support of appellant's claim, that there is evidence of non-exclusive use by appellee.

[00:27:51] Speaker ?:
Okay.

[00:27:52] Speaker ?:
Anything further?

[00:27:53] Speaker 01:
Thank you.

[00:27:54] Speaker 01:
Thank you very much, Your Honor.

[00:28:06] Speaker 02:
What's the answer to the evidence?

[00:28:08] Speaker 02:
Is the evidence that you're relying on to show use in the five-year period the same evidence that you introduced to try to show priority?

[00:28:17] Speaker 03:
Your Honor, the answer is no.

[00:28:19] Speaker 03:
The issues are completely distinct.

[00:28:21] Speaker 02:
I know the issues are different.

[00:28:23] Speaker 02:
The pieces of paper that you put in front of the board trying to show that there is a false statement by the other side when they said, oh, we had substantial excuse of use because you want to see all this use you had, right?

[00:28:39] Speaker 02:
Is that same paper that was submitted on that issue the same paper that was submitted on priority?

[00:28:46] Speaker 03:
The evidence overlaps to a certain extent, but priority and substantially exclusive use are two conclusions.

[00:28:53] Speaker 02:
I understand that.

[00:28:54] Speaker 02:
I'm just saying is the evidence the same?

[00:28:56] Speaker 02:
And when the board looked at your evidence for priority, what was the conclusion?

[00:29:01] Speaker 03:
The board's conclusion was that appellant had failed to demonstrate secondary meaning arising from that use.

[00:29:08] Speaker 03:
But in the context of the falsity inquiry, prior rights are not the issue.

[00:29:15] Speaker 03:
Prior use is the issue.

[00:29:17] Speaker 03:
And this is a subject that we address at length on pages 57 through 63 of our principal brief.

[00:29:23] Speaker 03:
But I refer, Your Honor, in particular to the opinion of this Court's predecessor in auto wrath, in which that Court said any use, whether begun prior or subsequent to a section 2F declaration, and whether in a descriptive context or in the manner of a mark,

[00:29:40] Speaker 03:
So you don't have to have prior rights to render a claim of substantially exclusive use.

[00:29:46] Speaker 03:
You don't have to have rights at all.

[00:29:48] Speaker 03:
You just have to have use.

[00:29:50] Speaker 03:
And that bill on this issue has confused the oath required by Section 1A3D as part of the application process with that required under Section 2F.

[00:30:01] Speaker 03:
They're different.

[00:30:01] Speaker 03:
They have different requirements.

[00:30:04] Speaker 03:
And the evidence relating to both is different.

[00:30:06] Speaker 04:
Thank you.

[00:30:07] Speaker 04:
We thank both sides and the case is submitted.