[00:00:02] Speaker 00: You have two cases scheduled for argument today. [00:00:06] Speaker 00: One case has been submitted on the briefs. [00:00:09] Speaker 00: The two cases for argument, we'll start with the first one, which is Henry Louis Vuitton, 18-1651. [00:00:19] Speaker 00: Counselor Gann, you may proceed. [00:00:22] Speaker 00: You're reserving five minutes of your time for rebuttal. [00:00:25] Speaker 00: Is that correct? [00:00:26] Speaker 00: That is correct. [00:00:27] Speaker 03: OK. [00:00:29] Speaker 03: Thank you, Your Honors. [00:00:30] Speaker 03: Good morning. [00:00:31] Speaker 03: I am Rebecca Gahn for the appellate Louis Vuitton. [00:00:35] Speaker 03: And I have addressed in the briefs two issues that we think are before the court today. [00:00:41] Speaker 03: But because of the limited time, we will focus on the central one, which is whether or not substantial evidence underpins the board's decision that consumer confusion is likely. [00:00:52] Speaker 03: And not surprisingly, we submit that it does not, that there is not substantial evidence that these marks will engender consumer confusion. [00:01:01] Speaker 03: Why? [00:01:02] Speaker 03: Because these marks are very, very different. [00:01:05] Speaker 03: Our client's mark, apogée, is a French term. [00:01:09] Speaker 03: Under this court's case law in Palm Bay Import, the average consumer would stop and translate this mark into height or peak. [00:01:18] Speaker 04: I was just going to ask you about what is a store within a store? [00:01:21] Speaker 04: I'm just jumping into the channels of trade. [00:01:24] Speaker 04: Wondering I don't see that term necessarily defined I'm wondering if there's anything in the record about what it means and also whether you have any photographs for example of an example of a store within a store and So we have cited in our briefs to a few cases board cases that discuss what a store within a store is and [00:01:50] Speaker 03: And in this record that's before you, there is some evidence about the store within a store partnership that Louis Vuitton had, which were two of them. [00:01:59] Speaker 04: So what is a store within a store? [00:02:01] Speaker 03: A store within a store for Louis Vuitton means it's essentially creating a box within a store with walls that are branded with Louis Vuitton. [00:02:09] Speaker 03: There is a picture, the display of how the perfumes are [00:02:14] Speaker 03: marketed within the store, within the store because this particular perfume is part of a seven set collection. [00:02:20] Speaker 03: They're sold as a set and they're also marketed as a set. [00:02:23] Speaker 03: We have an image of the display case where all the perfumes are. [00:02:26] Speaker 04: Could you tell me where that is in the record? [00:02:29] Speaker 03: Absolutely. [00:02:32] Speaker 04: I think it's highly relevant to the channels of trade and whether the substantial evidence support the board's finding on that. [00:02:39] Speaker 04: That's where I'm trying to understand what it is. [00:02:45] Speaker 03: So at Appendix 579, which is page 8 of my brief on the merits, there is an image of the display case for the perfumes. [00:02:57] Speaker 03: Is it 579? [00:02:57] Speaker 03: 579, which is page 8 on the initial brief on the merits. [00:03:05] Speaker 03: So this is a wall within the store, within a store. [00:03:09] Speaker 03: As is described in the record, our client had two of these [00:03:14] Speaker 03: pop-up store within a store as one was at a high-end shopping mall in Orange County, California and another was at the dearly departed Omnibundle in New York. [00:03:26] Speaker 00: This is a restriction, right? [00:03:28] Speaker 03: It is a restriction, that's right. [00:03:29] Speaker 00: It's a restriction on the channel of trade. [00:03:31] Speaker 03: It is. [00:03:32] Speaker 00: But the registrant doesn't have a similar restriction. [00:03:36] Speaker 03: The registrant does not have a similar restriction in this particular [00:03:42] Speaker 03: registration and the other registration they had did have a restriction for professional use only. [00:03:48] Speaker 00: Okay, on the one we're looking at, there's no similar restriction on that product being sold only in stores within stores. [00:03:55] Speaker 00: It could be sold that way. [00:03:59] Speaker 03: There is evidence in the record that their cheap but specialty conditioner, which is targeted at a specific hair segment. [00:04:07] Speaker 04: But isn't it's our job to look at the registration and not just think about because the registration doesn't limit the channels of trade, right? [00:04:17] Speaker 04: We have to legally and what the board had to do legally was think of that registration as covering all channels of trade. [00:04:28] Speaker 04: That might not necessarily mean that it would be sold in a Louis Vuitton store within a store, but that it could be sold in the same store perhaps as the store in which the Louis Vuitton store within a store is located. [00:04:45] Speaker 04: So that's where I'm trying to understand what the store within a store is. [00:04:47] Speaker 04: You referred to page A580. [00:04:50] Speaker 04: Is that a depiction of Louis Vuitton store within a store? [00:04:54] Speaker 04: Is that what one would see? [00:04:57] Speaker 03: 8580. [00:05:00] Speaker 03: I just recently referred to 579. [00:05:02] Speaker 03: Correct. [00:05:07] Speaker 03: We did put in images of. [00:05:09] Speaker 01: Can you get your appendix and look at 580 so we can talk about it? [00:05:13] Speaker 01: Because 579 is kind of a contextual. [00:05:16] Speaker 01: I mean, it looks like it's just a display, not an actual store. [00:05:20] Speaker 01: Sure. [00:05:21] Speaker 03: Thank you. [00:05:24] Speaker 03: So yes, this is an example of the [00:05:28] Speaker 03: pop-up store in Costa Mesa, California. [00:05:33] Speaker 01: And so this is just an image of the Louis Vuitton pop-up, but how does it relate to the, what is this in? [00:05:43] Speaker 01: What kind of store within a store is this in? [00:05:46] Speaker 03: So this is within a shopping mall in California. [00:05:53] Speaker 01: But it's not a separate Louis Vuitton store, right? [00:05:56] Speaker 01: No. [00:05:56] Speaker 01: So what kind of store is it in? [00:05:58] Speaker 03: OK. [00:05:59] Speaker 03: So in this particular example, the store is a shopping plaza. [00:06:03] Speaker 03: It's within a plaza. [00:06:05] Speaker 03: I believe they set it up in common space. [00:06:12] Speaker 03: They created a store in the center of the mall that was walled off. [00:06:17] Speaker 04: So it's not within a department store, for example? [00:06:20] Speaker 03: This specific specific example is within a shopping mall. [00:06:23] Speaker 03: The other example is within was within Henri Bendel and it was a walled off space. [00:06:29] Speaker 01: What do you mean by a walled off space? [00:06:32] Speaker 03: I mean that they took a section of Henri Bendel and they set up walls and the walls were branded with Louis Vuitton and they had this particular display at 579 was one of the walls and they had [00:06:50] Speaker 04: You can see in the image at 580 that... What products are sold within those walls? [00:06:56] Speaker 03: This particular pop-up is just for fragrance. [00:07:00] Speaker 03: Okay. [00:07:01] Speaker 03: So they, when I said that they created a store within a store partnerships, it was just for fragrance. [00:07:06] Speaker 03: It's to highlight this seven cent collection because they hadn't produced perfume in 70 years and it was a coveted specialty product. [00:07:14] Speaker 00: So was this, was this within a, like a large department store? [00:07:19] Speaker 03: This was within a large shopping mall, this particular image at 580. [00:07:25] Speaker 00: It's like any other, it's just renting space like any other store in the mall. [00:07:30] Speaker 03: No, this isn't renting space like any other store in the mall. [00:07:35] Speaker 00: This particular... Why do you call this a store within a store? [00:07:38] Speaker 00: I thought that would be something different. [00:07:41] Speaker 00: Now you're saying this is a store that 580 and 579, this is a store in a shopping mall. [00:07:50] Speaker 03: I'm not saying that it's a store in a shopping mall. [00:07:52] Speaker 03: I'm saying in this particular, they had two partnerships at the time of filing. [00:07:57] Speaker 03: One of them was with a very expensive, very small shopping plaza in California, and they created a pop-up store [00:08:10] Speaker 03: in the center of the mall. [00:08:11] Speaker 03: They didn't rent a space off to the side. [00:08:14] Speaker 01: So that's just a store, right? [00:08:17] Speaker 03: Well, it's a pop-up store because it's a formal. [00:08:21] Speaker 01: So in this case, you're getting caught up in things that don't matter. [00:08:25] Speaker 01: It's just a store, like any other separate store at a mall. [00:08:29] Speaker 04: In this case, the board said there could be an overlap in chambers of trade, at least in the store within a store. [00:08:37] Speaker 04: So I'm trying to understand. [00:08:39] Speaker 04: We're trying to understand what store within a store is. [00:08:42] Speaker 04: So can you help us understand that referring to evidence in the record that would help us understand what that is? [00:08:49] Speaker 03: Sure. [00:08:49] Speaker 03: I mean, I think that, for example, [00:08:53] Speaker 03: some of the cases that I cited to. [00:08:56] Speaker 04: Do you have any evidence on what Louis Vuitton stored within a store? [00:09:00] Speaker 03: Well, I think Appendix 580 is one image of the store within a store. [00:09:06] Speaker 01: But you said that's not a store within a store when it's just a separate store in a mall. [00:09:11] Speaker 03: I don't think. [00:09:11] Speaker 01: Also, I'm not sure why you're pushing back so hard. [00:09:14] Speaker 01: That seems to help your argument that it's not in the same channel of trade because it's a separate store. [00:09:20] Speaker 03: OK, well then, I accept your argument. [00:09:24] Speaker 01: Yeah, but that's not good. [00:09:25] Speaker 01: I mean, it only helps you so far in that we still have to, the board relied on the fact that you admitted that this was sold in a store within a store, and we can't figure out what you're talking about. [00:09:36] Speaker 01: Let me put my cards on the table. [00:09:39] Speaker 01: When I read this and heard about store within a store, I thought about high-end shopping, high-end stores, not that I go to them very often, but maybe to buy presents for people. [00:09:50] Speaker 01: like Nordstrom's and Henri Vidal's, way out of my price range, but places like that where you have separate counters for high-end perfume and cosmetics and those are separately branded and they're separately manned by people that may even wear uniforms corresponding not to Nordstrom's but to whatever high-end perfume or body lotion you want. [00:10:16] Speaker 01: Those are what I thought that everybody meant when they were talking about stores within a store and why the board said Because that's part of the department store even if it's separately branded and separately sold within another department store where the Conditioner might be sold it was the same channel to trade isn't that what the board was talking about? [00:10:39] Speaker 03: Well, I think the board has different case law about store within a store. [00:10:42] Speaker 01: We're not talking about case law here. [00:10:43] Speaker 01: This is a factual question about the method of sale of your product and their product. [00:10:51] Speaker 01: It's not about case law. [00:10:53] Speaker 01: It's about facts. [00:10:54] Speaker 01: What are the facts here? [00:10:56] Speaker 01: It's clear to me that your friend on the other side is arguing that their conditioner can be sold in [00:11:03] Speaker 01: in department stores alongside yours, even if it's sold at a separate counter store within a store. [00:11:12] Speaker 01: And to me, that's the actual conclusion the board made. [00:11:18] Speaker 01: What's your evidence to suggest that that doesn't have substantial evidence? [00:11:24] Speaker 03: Well, I would point to your case, Enrico, which says the fact that goods are sold in the same department store [00:11:31] Speaker 03: is not ipso facto evidence of relatedness of goods. [00:11:35] Speaker 03: The government would collapse. [00:11:36] Speaker 01: Let me try one more time. [00:11:38] Speaker 01: We are not talking about case law, and we are not talking about legal principles. [00:11:42] Speaker 01: The board made a factual finding here that your products and their products are sold within the same channels because they can both be sold in a department store. [00:11:55] Speaker 01: We're not addressing that as a legal error because that can be correct. [00:11:59] Speaker 01: We're addressing that as a factual error. [00:12:01] Speaker 01: What factual evidence can you point to in the record that detracts from the board's factual finding? [00:12:11] Speaker 03: I think that there's evidence in the record that this is something different than a separate makeup counter. [00:12:18] Speaker 04: What we're asking for is appendix pages to show us where this evidence is. [00:12:24] Speaker 04: I think you've made a good start with page 579 and 580, but what else do you have to show us what a store within a store is and why [00:12:35] Speaker 04: a person wouldn't be, why there wouldn't be similar channels of trade, just because the two different products are sold in the same store, one being within Louis Vuitton's store within a store. [00:12:48] Speaker 03: So, I mean, I think that we did submit evidence, those images, that they have store within a store partnership. [00:12:57] Speaker 03: It's a thorny issue. [00:12:58] Speaker 04: And there are cases... But what other evidence do you have besides pages 8, 5.79 and 5.80? [00:13:05] Speaker 03: of what a store within a store is. [00:13:08] Speaker 03: So if we are going by the idea that we have to look at the recitation of services or the identifications of goods, could a department store be encompassed within the registrant's unlimited registration? [00:13:24] Speaker 03: It could. [00:13:25] Speaker 03: Is that the test? [00:13:25] Speaker 03: Because then we're essentially collapsing all consumer goods. [00:13:30] Speaker 03: anything that can be applied to the body is ipsofactor related because you might have a beauty supply store that could sell conditioner and could sell perfume. [00:13:38] Speaker 03: No, facts matter. [00:13:39] Speaker 03: Consumers are not lemmings. [00:13:41] Speaker 03: The government's approach is essentially saying consumers don't take an external information. [00:13:46] Speaker 01: I said I was going to give one last try, but I'm going to make it one last try. [00:13:50] Speaker 01: Can you give me an answer that points to something in the record other than 579 or 580 that demonstrates what Louis Vuitton store within a store looks like and how it's different from the example I gave you of high-end perfume or cosmetic counters at regular department stores like Nordstrom's? [00:14:10] Speaker 03: No, but if we took your example. [00:14:11] Speaker 01: Wait, wait, wait. [00:14:12] Speaker 01: Can I start? [00:14:12] Speaker 01: So your answer is no, you don't have anything else to point to in the record. [00:14:16] Speaker 03: Those are the images that you pointed to are the images of the store within the store. [00:14:20] Speaker 00: OK, you're well into your rebuttal time. [00:14:21] Speaker 00: You've got a minute left. [00:14:23] Speaker 00: Do you want to save the rest of your time? [00:14:25] Speaker 03: Yes, I'll save it. [00:14:26] Speaker 03: Thank you, sir. [00:14:31] Speaker 00: Attorney Walker? [00:14:42] Speaker 00: Does this matter, this discussion of what the stores look like and everything? [00:14:46] Speaker 00: Isn't it that it's irrelevant because this is an ex parte proceeding to begin with? [00:14:51] Speaker 02: Good morning. [00:14:52] Speaker 02: May it please the court? [00:14:54] Speaker 02: I don't know that I would say it's irrelevant. [00:14:57] Speaker 02: It may be irrelevant specifically what Louis Vuitton does, except to the extent that that would show generally what a store within a store concept is. [00:15:07] Speaker 02: But the relevant inquiry is a more general [00:15:10] Speaker 02: assessment of trade channels with respect to both the registration and the application at issue and so it is relevant to consider what the limitations are in the application and what the board did here was take the the words in Louis Vuitton's application as evidence of what their trade channels restrictions were and said that a store within a store concept can include sales within department stores [00:15:36] Speaker 02: And if there was a difference, if there was a different consideration that the board should have taken, then it was incumbent upon the appellant to put in evidence that shows what a store within a store concept is more generally. [00:15:51] Speaker 04: Can I ask you, so as I understand it, do you agree that what the board said was with respect to the limitations listed by Louis Vuitton's registration? [00:16:00] Speaker 04: It was the store within the store was the only one where they thought that there was a similar channel of trade. [00:16:09] Speaker 04: Is that correct? [00:16:10] Speaker 02: They acknowledged that there's a distinction in the channels of trade with respect to the particular Louis Vuitton stores and the Louis Vuitton website. [00:16:19] Speaker 02: And so they didn't find that those were overlapping trade channels. [00:16:23] Speaker 04: And then they said... So the only one that's the overlapping trade channel is found by the board is the store within a store. [00:16:30] Speaker 04: Is that correct? [00:16:30] Speaker 04: That's correct, Your Honor. [00:16:34] Speaker 04: One thing I didn't see in the board's opinion was a discussion of why there would be confusion, or why there would, I guess it would be confusion, where there would be confusion even if Louis Vuitton's store within a store was located in the same department store as where the Apogee conditioner was sold or hair product was sold. [00:16:57] Speaker 04: Did you see that discussed in the board's opinion? [00:17:01] Speaker 02: I'm not sure that I understand the question so let me just frame it so that I make sure that I understand it so a particular discussion about the registrants and the applicants goods being sold together in the store or Well, I thought that was the whole point and I guess where I'm saying is where do you think the board addressed? [00:17:22] Speaker 04: Whether there would be confusion or similar trade channels [00:17:27] Speaker 04: when you're talking about Louis Vuitton's store-within-a-store limitation, because I don't see it addressed in the board's opinion. [00:17:33] Speaker 02: Yes, Your Honor. [00:17:33] Speaker 02: Let me just find the board decision. [00:17:39] Speaker 02: So the board discusses, beginning at the bottom of APPX 11 through APPX 12, the overlap in the trade channels with respect to the store-within-a-store. [00:17:50] Speaker 02: And they first talk about the both traditional brick and mortar and online department stores, [00:17:56] Speaker 02: as relevant channels of trade for the registrant. [00:18:01] Speaker 02: And then they go on to say that a store within a store partnership could include those both brick and mortar and online department stores. [00:18:09] Speaker 02: And I do want to be clear on that point that because the appellant's application is not restricted as to brick and mortar stores, that the store within a store concept could also include online sales as well. [00:18:23] Speaker 04: Oh. [00:18:25] Speaker 04: Even though the registration says Louis Vuitton's website and only says store within a store partnerships, do you think that includes online? [00:18:34] Speaker 02: It would necessarily include that because that's not restricted. [00:18:38] Speaker 02: And so retail store services, just as a general matter. [00:18:40] Speaker 02: Did the board find that? [00:18:42] Speaker 02: That was the discussion. [00:18:43] Speaker 02: And so they identified that they could be sold, for example, at both Macy's and Macy's.com. [00:18:50] Speaker 02: And that is generally how goods IDs [00:18:54] Speaker 02: Red that and so if you have or services are red so if you have retail looking at a page You're looking at page a 12 at the top. [00:19:00] Speaker 02: I am yes, okay? [00:19:04] Speaker 02: With respect to the other factors all the board's factors were supported by substantial evidence and the boards The boards properly weighed the factors here. [00:19:13] Speaker 02: We would ask that this court [00:19:14] Speaker 02: affirm the board's findings. [00:19:16] Speaker 02: And if there are no further questions, I think that... I have a question, actually. [00:19:21] Speaker 04: On the top of page 12, I thought that was talking about the registrant's channel restrictions. [00:19:28] Speaker 04: I didn't think it was talking about Louis Vuitton's channel restrictions. [00:19:32] Speaker 04: Louis Vuitton isn't the registrant, right? [00:19:36] Speaker 02: That's correct. [00:19:37] Speaker 02: But then, sort of halfway down the page, [00:19:41] Speaker 02: The board does it in sort of a slightly reverse because it has to include all of the channels of trade for the registrant. [00:19:48] Speaker 02: So they conclude that there would be, we cannot conclude that there would be no overlapping channels of trade between applicants and registrants' goods. [00:19:56] Speaker 02: And then they're citing that [00:19:59] Speaker 04: Cases that support the notion that they would be this so they say I'm going to interrupt you for a minute where it says we agree with Louis Vuitton that Louis Vuitton's stores and website or specialized trade channels that do not overlap with the ordinary channels of trade for registrants products however we find otherwise with regard to Louis Vuitton store within a store partnerships with high-end retail stores and [00:20:25] Speaker 04: within Louis Vuitton's exclusive distributor network. [00:20:28] Speaker 04: Where here do they talk about that, including websites? [00:20:35] Speaker 02: I understood that the earlier discussion was referring to high-end retail stores, and they gave examples of both brick and mortar and online departments. [00:20:46] Speaker 04: But that was in discussion in connection with the registrants' channels of trade, right? [00:20:53] Speaker 04: Discussion you're talking about on the top of page a12 is preceded by a sentence that is talking about the registrants channels of trade Is that correct? [00:21:06] Speaker 02: That's correct your honor, and I apologize I As I mentioned traditionally we would read without a specific restriction to brick brick and mortar We would read that as encompassing online. [00:21:19] Speaker 04: I understand what you're saying to me. [00:21:20] Speaker 04: I don't see the board doing that [00:21:22] Speaker 04: Right. [00:21:23] Speaker 01: It seems like even if that's the case, the board then went on and said, but for online stuff, we agree with Louis Vuitton that there's no overlap here. [00:21:31] Speaker 02: With particular respect to the Louis Vuitton online store, so like Louis Vuitton's website. [00:21:38] Speaker 01: What you're talking about is that Louis Vuitton specifically branded websites don't overlap with their websites or things, but if they sell [00:21:50] Speaker 01: goods in high-end retail stores through an online portal, like Nordstrom's or Henri Bendel or something like that, that that's what overlaps with the online high-end retail outlet. [00:22:09] Speaker 02: That was the point that I was making, Your Honor. [00:22:11] Speaker 02: But I want to be clear. [00:22:12] Speaker 01: It's not particularly clear that that's what they're talking about. [00:22:15] Speaker 02: Excuse me. [00:22:15] Speaker 02: I want to be clear that even with respect to brick and mortar, to the extent that there is some [00:22:19] Speaker 02: that there may not be complete clarity with respect to online, it would also be true for brick and mortar, and that is expressly discussed in the board's decision. [00:22:27] Speaker 04: In the middle of the page at A-12, this sentence, the sentence where I think they really address that is the one in the middle of page A-12 that says, given that high-end retail stores often sell the types of goods at issue, we consider this a trade channel appropriate for the goods, and therefore one in which we presume registrants' goods would travel. [00:22:47] Speaker 04: That, I think, is the heart and soul of the board's analysis, finding that there's overlap in channels of trade. [00:22:57] Speaker 04: But the problem I'm having with it is it doesn't really get into the intricacies of what is a store within a store and why is it that somebody at Nordstrom's or what have you would see one product in one location and one product within Louis Vuitton's store within a store [00:23:17] Speaker 04: and think that there's confusion. [00:23:21] Speaker 04: I don't see the board grappling with that issue, and I'm wondering why that is. [00:23:28] Speaker 02: So the board was, in this discussion, they're assessing one factor, the overlapping trade channels. [00:23:35] Speaker 02: And what they found was that the trade channels overlap because the stores are of the type [00:23:40] Speaker 02: that the products can be sold in. [00:23:42] Speaker 02: In addition, we have evidence in the record, and this also goes to the relatedness of the goods, that these are the types of goods that are traditionally sold under the same mark by the same entity. [00:23:55] Speaker 04: And let me interrupt you for a minute just to make sure I understand what you're saying. [00:23:57] Speaker 04: I think you're saying that it's enough that Louis Vuitton's store within a store is in Nordstrom and so is the conditioner. [00:24:05] Speaker 04: No other considerations have to be made [00:24:09] Speaker 04: that is okay and that's sufficient for there to be same channels of trade. [00:24:14] Speaker 04: Is that right? [00:24:15] Speaker 02: I don't know that I would go so far as to say that and I would be careful not to say that because I think this court has been clear that that it is not always this case that sales within the same store is sufficient and the recod is an example of that where in a grocery store you may have a [00:24:32] Speaker 02: wide variety of different items and it's not just because they're sold on the same store, but we have additional evidence here. [00:24:39] Speaker 04: Where is the board addressing that? [00:24:42] Speaker 04: Where is the board dealing with that difficult question then of this isn't a per se application and I need to weigh and think about whether when I'm talking about [00:24:53] Speaker 04: one product in the store and another product in a store within a store, I'm going to know that it's the same channel of trade. [00:25:00] Speaker 04: Where do they deal with that? [00:25:02] Speaker 02: So the board had addressed related, and there's some overlap in these factors, and there's overlap in these factors in the case law as well. [00:25:10] Speaker 02: And so the board had previously addressed on pages APPX8 and APPX9, [00:25:16] Speaker 02: particular, the types of evidence here that related to relatedness. [00:25:20] Speaker 02: And so you have both evidence of relatedness of the goods being sold by others, the types of good being sold by others, you know, both hairstyles. [00:25:28] Speaker 04: How does relatedness of the goods tell me whether there's substantial evidence to support the finding on channels of trade? [00:25:33] Speaker 02: That's the type of evidence that Ricott said would be relevant when either goods that are used together or that are sold under the same mark that would support the trade channel. [00:25:44] Speaker 02: the additional trade channel finding. [00:25:47] Speaker 02: And because they're otherwise, you may end up in a situation where you have a per se rule. [00:25:52] Speaker 02: To avoid a per se rule that sold in the same store is sufficient. [00:25:56] Speaker 02: And we have the additional factors here. [00:25:58] Speaker 04: There's a recut, as I recall. [00:25:59] Speaker 04: That's the Frito-Lay case, is that right? [00:26:02] Speaker 04: That's correct, Your Honor. [00:26:03] Speaker 04: And they talk about milk being sold in one part of the store and other goods being sold in other parts of the store. [00:26:09] Speaker 02: Yeah, and the goods there were human food versus dog food, right? [00:26:14] Speaker 02: That was the discussion in that case. [00:26:17] Speaker 02: And the other factor we have here is that they wouldn't just be sold in the same stores. [00:26:21] Speaker 02: They'd be sold in the same parts of stores, right? [00:26:23] Speaker 02: That we have evidence in the record that shows sort of beauty parts of the internet websites, and that these are the types that would be sold, not just in the same sort of third floor versus first floor, but at least sort of in the same general area. [00:26:37] Speaker 00: We address a similar issue in the case in Ray Detroit Athletic Company. [00:26:42] Speaker 00: Are you familiar with that case? [00:26:43] Speaker 00: I am, Your Honor. [00:26:44] Speaker 00: And there we said, indeed, the owner of an unrestricted registration, and that's what we have here, right? [00:26:50] Speaker 00: Yes, sir. [00:26:50] Speaker 00: Is entitled to change its current trade channels at any time. [00:26:54] Speaker 00: Thus, we may not assume that the club will never sell clothing online with third-party distributors. [00:27:00] Speaker 00: And that's the case here, too, correct? [00:27:02] Speaker 00: That's correct, Your Honor. [00:27:02] Speaker 00: So the registrant hasn't imposed any limitations on its own registration, whereas the applicant has imposed limitations on its application. [00:27:12] Speaker 00: That's correct. [00:27:14] Speaker 02: Thank you. [00:27:15] Speaker 00: Any other questions? [00:27:16] Speaker 00: Okay. [00:27:17] Speaker 00: Thank you very much. [00:27:26] Speaker 03: Just to address a couple of points. [00:27:27] Speaker 03: The applicant did indeed exact many restraints on its identifications of goods and that's because the examiner found no likelihood of confusion and published this application for public opposition and then clawed it back [00:27:41] Speaker 03: and worked with the applicant to try and come up with an identification of goods that would pass muster with the Office of Policy at the office because she had initially found no likelihood of confusion. [00:27:53] Speaker 03: And I would echo what Judge Stoll said, which is that the board really didn't get in to the intricacies of a store within a store partnership. [00:28:02] Speaker 03: That's what they were focused on. [00:28:03] Speaker 03: They said if there's a Venn diagram of overlap somewhere where some consumer could [00:28:08] Speaker 00: Possibly go into looking at channels of trade and a trademark inquiry. [00:28:14] Speaker 00: You're not really dealing with world life or real life Applications of how it actually looks you're just looking for channels of trade, correct? [00:28:23] Speaker 03: Yes, but I would argue that you cannot be myopic to the marketplace reality. [00:28:27] Speaker 00: The government is now advancing a position that if there is an internet store... In other words, you couldn't say, an applicant couldn't say, I'm only going to sell my product in stores that have black walls. [00:28:40] Speaker 00: And they'll be in commercial centers or in shopping centers, but my stores have black walls. [00:28:46] Speaker 00: Appellant didn't... The channel of trade there is not the color of the walls. [00:28:49] Speaker 00: The channel of trade is a shopping mall. [00:28:52] Speaker 03: Sure, and appellant here with the examiner tried to come up with an identification that would adequately restrict the identification so this application could be republished. [00:29:01] Speaker 03: And then these thorny issues perhaps could have been addressed in an opposition system, which is the proper forum for dealing with really thorny issues of registrability. [00:29:12] Speaker 03: The government is essentially advancing a position that if you can find any cosmetic [00:29:17] Speaker 03: in an online store. [00:29:19] Speaker 01: I mean, the online stuff is not clear from the board's decision. [00:29:22] Speaker 01: We don't need to go there because we can confine it to brick and mortar high-end retail stores. [00:29:28] Speaker 01: And their registration has no restrictions. [00:29:31] Speaker 01: And your mark includes high-end retail stores, at least store within stores in those retail stores. [00:29:38] Speaker 01: So there's at least some overlap there in trade channels. [00:29:44] Speaker 01: And we have to decide whether the board's factual finding that these types of goods are similar enough and sold in the same type of trade channels to have substantial evidence on that. [00:29:54] Speaker 03: So what the board did was say their registration isn't restricted and that's sufficient moving on. [00:29:59] Speaker 01: That's not really true, is it? [00:30:00] Speaker 01: They discuss the types of goods and recognize that the types of goods are similar and that they're sold in a similar kind of location, high-end retail stores. [00:30:11] Speaker 03: Well, actually, they didn't, because the evidence of record is that the registrants' goods are sold in low-end beauty supply stores. [00:30:17] Speaker 01: But they don't have to show that, because their registration is unlimited. [00:30:21] Speaker 03: That's my point. [00:30:21] Speaker 03: The board basically said, we look at the recitation and the ID, and that's it. [00:30:25] Speaker 03: Nothing further. [00:30:26] Speaker 03: We don't actually have to look at the goods. [00:30:28] Speaker 03: have a broad notion that if you put something on your body in a cosmetic way, it's part of your beauty regime and it's related. [00:30:34] Speaker 04: But our case law supports the idea that when you're looking at, you have to just look at the registration, right? [00:30:41] Speaker 04: We're not supposed to look at where [00:30:43] Speaker 04: those hair products, after gene, hair products are actually sold, correct? [00:30:48] Speaker 03: You can look at marketplace evidence, right? [00:30:51] Speaker 04: But really, when we're talking, I mean, I think that your emphasis should probably be on your own registration, which does have limitations, right? [00:31:01] Speaker 03: Right. [00:31:01] Speaker 03: So we tried our best to get this through. [00:31:04] Speaker 03: And I think if you take the government's [00:31:08] Speaker 03: Argument to its logical conclusion the register is growing exponentially ten percent per year at a certain point There's not going to be any space in the consumer products good if we take the proposition That anything you put on your body or in your body is it's affected related because it can be part of your regime [00:31:24] Speaker 03: And that's an issue here. [00:31:25] Speaker 03: So the appellant limited its trade channels to its own website, its own stores. [00:31:30] Speaker 03: And this very narrow exception where they had introduced the perfume in these high-end store within a store. [00:31:36] Speaker 03: And they cited to the board's case law and put in evidence and those images of what those stores are because they had just launched it. [00:31:44] Speaker 03: So they don't have a huge history of doing this because they hadn't produced perfume in 70 years. [00:31:50] Speaker 03: It's a very exclusive collection of perfumes. [00:31:54] Speaker 00: Thank you for your argument.