[00:00:06] Speaker 04:
We have five cases on the calendar this morning, trademark case from the TTAB, three patent cases, one from the district court and two from the PTAB, and a veterans case.

[00:00:19] Speaker 04:
But before we do, we have a pleasant task to perform, and I would ask Judge Moore to make a motion.

[00:00:27] Speaker 01:
OK.

[00:00:28] Speaker 01:
Bob, please stand up.

[00:00:30] Speaker 01:
I move the admission of Robert King High III, who is a member of the Bar and is in good standing with the highest court of Georgia.

[00:00:41] Speaker 01:
I have knowledge of his credentials, and I'm satisfied he possesses the necessary qualifications.

[00:00:47] Speaker 01:
Beyond that, I would just like to add that Bob has been my clerk for the last 20 months.

[00:00:54] Speaker 01:
He is king clerk in the chambers, no pun intended, and he's done a wonderful job.

[00:01:00] Speaker 01:
It's been a great joy to have him and to watch him grow in his legal skills, his writing, his thinking, and I know that he has a bright future ahead of him.

[00:01:10] Speaker 01:
And he is going to be a wonderful addition to our bar.

[00:01:13] Speaker 01:
And I very much hope that my colleagues will agree and allow his admission.

[00:01:17] Speaker 01:
And if there were a way that we could have put some sort of jacket on Luke and claimed that he was a necessary element to this process, he would have been here also.

[00:01:28] Speaker 01:
No one else will understand that, but you and I get it.

[00:01:33] Speaker 03:
Sir, Toronto.

[00:01:34] Speaker 03:
Having seen some evidence of his work, I would concur.

[00:01:38] Speaker 04:
And I certainly do, Judge Moore's recommendations are usually very sound.

[00:01:43] Speaker 04:
So if you would step forward to take the oath.

[00:01:48] Speaker ?:
Please raise your right hand.

[00:01:50] Speaker 00:
Do you solemnly swear that you will support yourself as an attorney and counsel of this court, and uprightly and according to law, and that you will support the Constitution of the United States of America?

[00:02:00] Speaker 02:
I swear.

[00:02:02] Speaker ?:
Welcome to the bar of the U.S.

[00:02:03] Speaker ?:
Court of Appeals for the Middle Circuit.

[00:02:06] Speaker 04:
Congratulations.

[00:02:14] Speaker 04:
Our first case this morning is N. Ray Roman Spirits Corporation, 2018, 1712.

[00:02:18] Speaker 04:
Mr. Would you pronounce your name for us, please?

[00:02:26] Speaker 02:
Yes, Your Honor.

[00:02:27] Speaker 02:
My name is Samuel Pamias.

[00:02:29] Speaker 04:
Pamias.

[00:02:30] Speaker 02:
Yes.

[00:02:30] Speaker 04:
We're ready when you are.

[00:02:44] Speaker 02:
May I please record?

[00:02:46] Speaker 02:
Yes, for the record, Samuel Pamias.

[00:02:48] Speaker 02:
As you are aware, this is a trademark case arising from a rejection at the USPTO to register the trademark C, Cañaveral.

[00:03:02] Speaker 02:
Due to the existence of another trademark, Cañaveral,

[00:03:06] Speaker 02:
Canaveral, the one that is registered at the USPDO for the argument registrant in this case, is registered in class 30.

[00:03:19] Speaker 02:
Applicant, in this case, is requesting registration for C. Canaveral in class 33.

[00:03:26] Speaker 04:
But Canaveral, if I pronounced it properly, is the dominant mark.

[00:03:31] Speaker 04:
that you want a portion of what you want to register and what already is registered.

[00:03:36] Speaker 04:
And so the board found a likelihood of confusion.

[00:03:40] Speaker 04:
They look similar.

[00:03:41] Speaker 04:
They sound similar.

[00:03:42] Speaker 04:
They travel in the same commercial channels.

[00:03:46] Speaker 04:
Yes, Your Honor.

[00:03:46] Speaker 02:
I understand your question.

[00:03:48] Speaker 02:
But I very respectfully defer from their analysis.

[00:03:55] Speaker 02:
And my main concern is the following.

[00:03:59] Speaker 02:
their two tremors are not exactly the same.

[00:04:02] Speaker 02:
One is si cañaveral with a design, and the other one is a word mark.

[00:04:06] Speaker 02:
Admittedly, they both have a similar word, which is cañaveral.

[00:04:12] Speaker 02:
They both share that word.

[00:04:15] Speaker 02:
But when you analyze them as a whole.

[00:04:17] Speaker 01:
Does that word mean anything in Spanish?

[00:04:19] Speaker 02:
Cañaveral means sugar plantation.

[00:04:22] Speaker 02:
OK.

[00:04:22] Speaker 02:
Sugar plantation.

[00:04:23] Speaker 02:
So they both.

[00:04:27] Speaker 02:
share and have in common that word.

[00:04:29] Speaker 02:
But when you see them as a whole, they both create an overall and distinctive appearance.

[00:04:36] Speaker 04:
Well, certainly the red and white C is quite distinctive.

[00:04:41] Speaker 04:
But the evaluation of the likelihood of confusion is based on a number of facts.

[00:04:48] Speaker 04:
And the board found facts, and we give deference to fact-finding.

[00:04:52] Speaker 02:
I understand, Your Honor, but in this situation, we believe that you are in the same position as the board and in the same position as the trademark senator.

[00:05:01] Speaker 02:
And when you analyze all the elements, you will be able, and I feel that you will be convinced that these trademarks can coexist in the same market.

[00:05:11] Speaker 02:
Why do I say that?

[00:05:12] Speaker 02:
When you analyze the goods that each trademark seeks to protect, that is very, very important.

[00:05:19] Speaker 02:
One of them, registrants' trademark.

[00:05:22] Speaker 02:
protects candy chewing gum ice cream flavor and sweetened gelatins honey pasta pasta shells noodles rice tortillas tortilla chips corn chips salsa cheese sauce tomato sauce spices and processed herb and sugar and the applicants trademark seeks to protect

[00:05:52] Speaker 02:
Liquor and rum and rum cream.

[00:05:55] Speaker 02:
It's our opinion that these products are in distinctive markets, even when you go to a supermarket.

[00:06:05] Speaker 03:
What about the evidence?

[00:06:06] Speaker 03:
And I think there were a couple of board findings that there are candies out there that are liquor infused and the name is shared with the liquor maker.

[00:06:18] Speaker 02:
Thank you for that question.

[00:06:21] Speaker 02:
And I believe that evidence further supports our position.

[00:06:25] Speaker 02:
And I will explain myself why.

[00:06:27] Speaker 02:
I believe that it supports our position since there are very, very limited examples of companies that make candy filled with licor.

[00:06:39] Speaker 02:
And the companies that make those, you have two exhibits in this that were presented.

[00:06:46] Speaker 02:
Some of them are for companies that actually make candy filled with other third parties licorice, and you also have Licorice companies, which I think are the majority of the examples.

[00:06:59] Speaker 02:
I think there are five in total.

[00:07:01] Speaker 02:
I could be mistaken The majority show that are like Bailey's and Kahlua and Licorice companies that decided to make a special candy filled with

[00:07:14] Speaker 02:
With their liquor, so I think that is distinctive because it shows that rather than being the rule That's the exception to the rule and the fact that there are companies very limited amount of companies that make Candies filled with liquor doesn't mean that all the companies will make Candy filled with liquor or that consumers are

[00:07:38] Speaker 02:
encounter these products regularly in the market together or that they make an association right away.

[00:07:45] Speaker 01:
Well the problem for you is you're saying that but you didn't introduce evidence of that and the board did rely on evidence of the same company making both the candy and the liqueur

[00:07:59] Speaker 01:
And that is a fact finding that we have to review for substantial evidence.

[00:08:03] Speaker 01:
I don't see the evidence on the other side that I could say renders the board's evidence non-existent or insubstantial or anything.

[00:08:13] Speaker 01:
So that's my problem.

[00:08:15] Speaker 01:
My problem is that if this were a case of first impression, which I understand it's de novo review on the likelihood of confusion, but it's not de novo review on the underlying fact findings.

[00:08:26] Speaker 01:
It's substantial evidence.

[00:08:27] Speaker 01:
If I got to review it de novo, I would agree with you.

[00:08:30] Speaker 01:
These are not related goods.

[00:08:31] Speaker 01:
But that's not a de novo question.

[00:08:33] Speaker 01:
It's a substantial evidence question.

[00:08:35] Speaker 01:
So how do you overcome that?

[00:08:37] Speaker 01:
What evidence do you have in this record?

[00:08:39] Speaker 01:
Or why should we just entirely disregard the board's evidence that some companies sell them together?

[00:08:46] Speaker 02:
Your Honor, the other evidence that we could have produced is that there are some companies that only make candy.

[00:08:56] Speaker 02:
But we felt that the evidence that was being presented before the board was insufficient in the sense that the same evidence provided, in our opinion, helps to prove our point also that that is an exception to the rule.

[00:09:10] Speaker 04:
The lack of evidence.

[00:09:11] Speaker 04:
What you could also have done was pick a different name.

[00:09:15] Speaker 04:
And when you're picking the same name, presumptions go in favor of the original registrant.

[00:09:21] Speaker 02:
Admittedly, Your Honor, that is a possibility, and we agree with you.

[00:09:25] Speaker 02:
But obviously, our client seeks to protect that trademark, and they have an interest in using that trademark in the market.

[00:09:33] Speaker 02:
And Your Honor, I understand your concern.

[00:09:37] Speaker 02:
And I'm going to talk about a specific evidence or exhibit that was presented by

[00:09:46] Speaker 02:
by the trademark examiner and was used in the decision by the board, that I think is kind of troublesome in the sense of the conclusion that it was reached at the end.

[00:09:58] Speaker 02:
In the decision, the trademark trials and appeals board, when evaluating an exhibit, it reached a conclusion, and I'm going to read it directly from the board.

[00:10:08] Speaker 02:
It says, the examining attorney also submitted a printout from Yelp.com.

[00:10:16] Speaker 02:
in which a Seattle user asked, does anybody know where I can buy liquor filled chocolates downtown and receive more than a dozen responses, some specifically referring chocolate filled with rum or Kahlua, Baileys, Grand Marnier, and liquor?

[00:10:36] Speaker 02:
OK.

[00:10:37] Speaker 02:
Then the conclusion that the board reaches with this exhibit is, the evidence supports a finding under the second DuPont factor that consumers are likely to believe

[00:10:46] Speaker 02:
liquor and rum on the one hand and candy on the other hand emanate from a common source.

[00:10:53] Speaker 02:
My problem with that conclusion, and it's something that I defer strongly, is that to me this is a clear example that

[00:11:05] Speaker 02:
The rule is not that candy and rum and liquor are complementary goods.

[00:11:13] Speaker 02:
Because if a consumer has to go in the internet and ask where he can find those goods, it's because obviously they're not readily available everywhere you go.

[00:11:27] Speaker 02:
going to a store and pick them off the shelf right away or to any supermarket, why would somebody need to ask?

[00:11:33] Speaker 01:
And also... Let me just tell you.

[00:11:36] Speaker 01:
I agree with you.

[00:11:37] Speaker 01:
I agree with what you just said and your interpretation of the Yelp thing.

[00:11:40] Speaker 01:
The problem is, again, substantial evidence.

[00:11:42] Speaker 01:
What I can't say

[00:11:44] Speaker 01:
is the board's interpretation to the contrary was totally unreasonable.

[00:11:48] Speaker 01:
If I got to make the decision, I would actually find in your favor on this point.

[00:11:53] Speaker 01:
But I can't say the board's decision to the contrary was unreasonable in understanding that when all of these other people weighed in with their comments, that those comments don't demonstrate what

[00:12:06] Speaker 01:
consumers understand.

[00:12:09] Speaker 01:
You know, does the one person asking a question demonstrate what consumers understand or do the comments that followed in demonstrate what consumers understand?

[00:12:16] Speaker 01:
And I can't say the board's decision that the comments are what demonstrates what consumers understand is unreasonable or not entitled to any weight.

[00:12:26] Speaker 01:
And that's the problem.

[00:12:27] Speaker 01:
that you have.

[00:12:29] Speaker 01:
I know there's really not an answer to what I'm telling you.

[00:12:32] Speaker 01:
It's not really in the form of a question.

[00:12:34] Speaker 01:
I'm just saying this is what is bothering me about your case and why it's difficult for me personally to get to a reversal.

[00:12:44] Speaker 02:
Your Honor, I understand your concern.

[00:12:45] Speaker 02:
I understand your question.

[00:12:47] Speaker 02:
What I can say about that is that when we saw the evidence we thought that in a way that evidence supported our position and we obviously Discussed the evidence and in a way I know that we it was point out at some point that what we did is criticize the evidence But we were trying to do was not to criticize the evidence was to use it in our favor and

[00:13:08] Speaker 02:
in the sense that, well, if this is what you are providing, then that serves to prove also, I take it as evidence and I take it as face value, but to me that supports my position also that what you provided really does not prove that these products cannot coexist in the market.

[00:13:28] Speaker 02:
And we also cited case law in support of our argument that

[00:13:33] Speaker 02:
For example, the Coors case, that it was for the Blue Moon trademark.

[00:13:39] Speaker 02:
Eventually that case was reversed and Blue Moon was registered at the end of the day because the board found that although some establishments may sell beer,

[00:13:53] Speaker 02:
may even brew their own beer.

[00:13:55] Speaker 02:
But that does not mean that the trademarks cannot coexist, even though one is for beer and one is for restaurant services.

[00:14:02] Speaker 02:
So we also felt that the evidence, the way that it was presented in light of the existing law, supports our position.

[00:14:15] Speaker 02:
And that's what we understood.

[00:14:18] Speaker 02:
Do you want to save some rebuttal time?

[00:14:21] Speaker 04:
Yes, Your Honor.

[00:14:22] Speaker 04:
Thank you very much.

[00:14:27] Speaker 04:
Ms.

[00:14:27] Speaker 04:
Heber.

[00:14:34] Speaker 00:
Good morning, and may it please the court.

[00:14:39] Speaker 00:
This is a straightforward case where likelihood of confusion has been established on the two critical factors in the analysis, which are the similarity of the marks and the similarity of the goods.

[00:14:49] Speaker 00:
The board properly found these marks are highly similar.

[00:14:52] Speaker 01:
Well, I don't disagree with you on the similarity of the marks.

[00:14:56] Speaker 01:
And I think the board took into account the stylized C above.

[00:14:59] Speaker 01:
And it didn't say they're exactly the same.

[00:15:02] Speaker 01:
So I don't have a problem with that.

[00:15:04] Speaker 01:
But my problem on the related goods is really, I don't know, I don't think of candy and liquor together personally.

[00:15:15] Speaker 01:
But I know that's not the standard.

[00:15:17] Speaker 01:
It wasn't a substantial evidence.

[00:15:18] Speaker 01:
But in this internet age, there is nothing I can't buy on Amazon, nothing.

[00:15:24] Speaker 01:
And so the fact that the board, a trademark examiner, went online and happened to find a website or two that sold all of these products, does that really sufficient?

[00:15:36] Speaker 01:
Under the law, should that be deemed sufficient to make them related goods, where nowadays you do have these giant conglomerate websites that sell absolutely everything under the sun?

[00:15:48] Speaker 01:
So should that, as a legal matter, be sufficient just to go to a web and say, oh, well, I located a site that happens to sell both of these things?

[00:16:00] Speaker 00:
So Your Honor, I don't think the sale on a website actually goes to related goods.

[00:16:05] Speaker 00:
It goes to the channels of trade.

[00:16:06] Speaker 00:
So the fact that they both could be purchased through the internet through the same website would establish similar trade channels.

[00:16:13] Speaker 00:
But the relatedness of the goods is about,

[00:16:16] Speaker 00:
At the end of the day, what you are concerned about is, are they of a type that consumers would assume come from a common origin, shares common source?

[00:16:25] Speaker 00:
They don't have to be the same.

[00:16:27] Speaker 00:
They don't have to be intrinsically related.

[00:16:29] Speaker 00:
My children think everything comes from Amazon.

[00:16:31] Speaker 01:
Everything.

[00:16:32] Speaker 00:
So I don't know.

[00:16:32] Speaker 00:
Well, Amazon's the retailer.

[00:16:35] Speaker 00:
But here, the evidence that the examining attorney put in the record, and I would say the Godiva example is from Godiva's own website, shows a bottle of their Godiva-branded liqueur.

[00:16:45] Speaker 00:
And it also shows them offering chocolates, candies, that are flavored or filled with liquor on their website under the same mark.

[00:16:54] Speaker 00:
So for relatedness purposes, what we're looking at is, is there evidence that these goods actually are offered under the same mark to consumers?

[00:17:02] Speaker 00:
Not where they're offered.

[00:17:04] Speaker 00:
That's really channels of trade.

[00:17:05] Speaker 00:
But does the same mark, is it applied to these goods?

[00:17:10] Speaker 00:
And here we have evidence of Godiva, Tortuga, Baileys.

[00:17:14] Speaker 01:
and Malibu rum all Lickers on the one hand and that same brand of liquor is there anything at all to the fact that this registration claimed liquor rum rum creams Excluding candy and ice cream products.

[00:17:30] Speaker 01:
I've never seen one of these excluding things.

[00:17:33] Speaker 01:
I don't know how often that happens What is the legal significance of the fact that this registration?

[00:17:39] Speaker 01:
attempt at registration sought to expressly exclude the very thing that you said is the problem for them.

[00:17:46] Speaker 01:
They tried to exclude it and say, we are not ever going to claim our mark on those products.

[00:17:51] Speaker 01:
How does that affect this analysis, if at all?

[00:17:55] Speaker 00:
It doesn't affect the analysis because you have an unrestricted registration.

[00:17:59] Speaker 00:
And so the normal rule is that where you have a registration that covers candy, it covers all types of candy.

[00:18:05] Speaker 00:
And there's no dispute here that there is a type of candy that is filled or flavored with liquor.

[00:18:09] Speaker 01:
And that's- Oh, you mean the actual registration, which covers candy.

[00:18:13] Speaker 00:
Yes.

[00:18:13] Speaker 01:
But the fact that the applicant has said, my mark will never be used on candy, you don't think that that affects this likelihood of confusion analysis at all?

[00:18:22] Speaker 00:
It does not here.

[00:18:24] Speaker 00:
If you had a restricted registration that said, perhaps, that they'll never make candy that's flavored or filled with liquor, that is something the board would have to take into account.

[00:18:33] Speaker 00:
And then you have, perhaps, more of a situation like was present in the M2 software case, where you had two companies

[00:18:39] Speaker 00:
offering software under the same mark, but the IDs themselves, because we have to look at what's the scope of the registration for what the words in the registration and the application cover, that full scope.

[00:18:50] Speaker 00:
And where there's no restriction, you have to give it full effect for everything.

[00:18:54] Speaker 00:
Where there is a restriction, you can take that into account.

[00:18:56] Speaker 00:
In the M2 software case, that's what the court held, that there was different industries and nature of the software

[00:19:03] Speaker 00:
And in both the application and the cited registration, and that mattered to the analysis.

[00:19:08] Speaker 00:
But here you have unrestricted candy.

[00:19:10] Speaker 00:
It includes candy that can be filled with liquor.

[00:19:12] Speaker 01:
How would, in a scenario like this, where suppose there are a couple of what I will call specialty retailers, like Godiva.

[00:19:21] Speaker 01:
I'll say that's, you know, I mean Hershey's isn't selling booze, right?

[00:19:24] Speaker 01:
You know, like specialty retailers.

[00:19:26] Speaker 01:
I don't know what I mean by that.

[00:19:28] Speaker 01:
I guess I just mean,

[00:19:30] Speaker 01:
Not everyone who is selling chocolates is also selling alcohol-filled chocolates.

[00:19:35] Speaker 01:
There's a few people who are selling candies, which you found.

[00:19:39] Speaker 01:
And they're really like these very high-end, like Godiva kind of sellers that are appealing to a slightly different market than the average chocolate bar buyer, I think.

[00:19:48] Speaker 01:
Maybe I'm mistaken.

[00:19:49] Speaker 01:
But in any event, my question to you is, how does an applicant who's seeking to show that just because you could go on the internet and find a couple of high-end

[00:20:00] Speaker 01:
individual retailers that do happen to sell both, that's not indicative of consumer understanding of the market as a whole.

[00:20:09] Speaker 01:
How do they prove the negative to a trademark examiner who found one or two websites where both things are sold under the same brand, not the channel of trade argument?

[00:20:19] Speaker 01:
But do you understand what I'm saying?

[00:20:21] Speaker 01:
How could you go about proving or making a case that that's not the case?

[00:20:25] Speaker 01:
These are specialty people.

[00:20:27] Speaker 01:
Like, you know, if they had introduced evidence that

[00:20:30] Speaker 01:
No, here are 100 different alcohol manufacturers, none of whom sell candy.

[00:20:35] Speaker 01:
So yes, you found three that did, but here's evidence on the web of 100 different label brands for alcohol, none of whom sell candy.

[00:20:45] Speaker 01:
100 beats three.

[00:20:46] Speaker 01:
Like, is that a way they could do it?

[00:20:48] Speaker 01:
I'm wondering, how could they build a case that could contravene this kind of fact-finding?

[00:20:54] Speaker 00:
Sometimes it might not be possible, and sometimes it can be possible.

[00:20:58] Speaker 00:
But there's certainly ways that they can try and rebut and challenge the showing that the examining attorney made.

[00:21:04] Speaker 00:
And an example, I guess, would be in the Coors case.

[00:21:07] Speaker 00:
Now, I'm hesitating because this isn't a numbers game, right?

[00:21:10] Speaker 00:
The fact that it might be a niche market or only

[00:21:13] Speaker 00:
there's only a limited number of consumers that might have this understanding doesn't mean that there's not going to be confusion likely.

[00:21:19] Speaker 01:
No, no, no, but I don't think I agree with you on that, right?

[00:21:21] Speaker 01:
Because we're trying to look at consumer confusion in the relevant market, right?

[00:21:26] Speaker 01:
So if their brand is more like Tito's than it is like Godiva, wouldn't the Tito's, the fact that Tito's doesn't sell candy be more relevant to analysis of confusion?

[00:21:40] Speaker 01:
than the fact that Godiva sells both candy and alcohol?

[00:21:42] Speaker 00:
I don't think so, Your Honor.

[00:21:43] Speaker 00:
I think it has to go to what the evidence shows about consumer understanding and expectations in the marketplace generally.

[00:21:49] Speaker 01:
What consumer and what marketplace?

[00:21:51] Speaker 00:
Here, really, it's not restricted to anything beyond the adult population.

[00:21:56] Speaker 00:
Because if you accept that to buy alcohol, you have to be of a certain legal age, depending on the state where you are.

[00:22:03] Speaker 00:
That's the consumer group that would be the overlap here.

[00:22:07] Speaker 01:
Well, I'll just tell you, like, I've bought, and I know none of this is relevant to my decision making in this case, but I've bought Godiva chocolates hundreds of times for people's gifts.

[00:22:14] Speaker 01:
Until you told me today that they also sell some liquor-filled thing, I never would have guessed.

[00:22:18] Speaker 01:
I'm not interested in purchasing it, but I never would have guessed that they did.

[00:22:21] Speaker 01:
I didn't go looking for it.

[00:22:23] Speaker 01:
So what I'm worried about is a trademark examiner identifying, via the capacity of our internet,

[00:22:32] Speaker 01:
certain extraneous examples that really don't represent what the marketplace full of consumers would understand and using them.

[00:22:40] Speaker 01:
And what is the mechanism by which an applicant can show that those three things are not indicative of the marketplace or consumer understanding?

[00:22:50] Speaker 00:
I think there's a few things.

[00:22:51] Speaker 00:
And the Coarse case is an example of where the examining attorney put forth what was a prima facie case of relatedness, as they did here.

[00:22:59] Speaker 00:
And the applicant came back and said, hold on.

[00:23:01] Speaker 00:
You have a situation where it's restaurant services and beer, and the court's case law had held that you had to have something more than just the fact that restaurants serve food to establish relatedness in that instance.

[00:23:13] Speaker 00:
But the Coors applicant came back and said, look, here's the restaurant industry as a whole.

[00:23:20] Speaker 00:
And the examples of where restaurants also brew or sell their own beer is a tiny, tiny fraction of the percentage of all restaurants.

[00:23:29] Speaker 00:
That was compelling to overcome the examining attorney's showing.

[00:23:32] Speaker 01:
But you told me a minute ago numbers don't matter.

[00:23:34] Speaker 01:
I said if they were able to show 100 different liquor companies that don't make candy, and you kind of rejected that idea.

[00:23:40] Speaker 01:
So then can't the numbers possibly matter?

[00:23:45] Speaker 01:
Maybe not in every case, but can't they?

[00:23:47] Speaker 01:
I mean, that's kind of what you just described in Coors.

[00:23:49] Speaker 00:
Well, I think it's a little bit different because it was industry data, not just I have 10 examples, you have 20 examples, right?

[00:23:55] Speaker 00:
We don't want to get into a numbers game because we don't want examining attorneys cluttering the record with hundreds of examples of things.

[00:24:01] Speaker 00:
It's not necessary to establish the premise and the principle.

[00:24:05] Speaker 01:
Maybe it is necessary, though, once somebody else puts on a sufficient amount of evidence that what the examiner found in his or her one or two examples are not indicative of the marketplace.

[00:24:14] Speaker 00:
That's exactly correct.

[00:24:15] Speaker 00:
But here, we have a completely unrebutted showing.

[00:24:19] Speaker 00:
Another thing that applicants can do is surveys, for example.

[00:24:22] Speaker 00:
The office can't, but applicants can, and we have to consider that evidence.

[00:24:25] Speaker 01:
So surveys.

[00:24:26] Speaker 01:
OK.

[00:24:26] Speaker 01:
And would another way to do it, like in this case, so I have absolutely no idea since I don't

[00:24:32] Speaker 01:
I usually consume hard alcohol, and I don't like chocolate.

[00:24:35] Speaker 01:
So I'm probably the least knowledgeable human being on any of this.

[00:24:39] Speaker 01:
That being said, what if they were able to show, for example, that nobody ever puts rum in candies.

[00:24:45] Speaker 01:
They always use vodka or tequila or gin.

[00:24:48] Speaker 01:
Because their application is limited to liqueur's rum and rum creams.

[00:24:53] Speaker 01:
So suppose there were examples out there of alcohol being used in candy.

[00:24:58] Speaker 01:
But could they make an argument?

[00:24:59] Speaker 01:
Not the type of alcohol that we're claiming for registration.

[00:25:02] Speaker 01:
There's nothing.

[00:25:02] Speaker 01:
I mean, is that the kind of argument they could also use to rebut an examiner's finding of relatedness?

[00:25:09] Speaker 00:
They could make the argument.

[00:25:10] Speaker 00:
I'm not sure if it would be compelling, depending on the facts in the case.

[00:25:15] Speaker 00:
Because in all of these cases, you always have this kind of weighing of where you have really high degree of similarity between the marks.

[00:25:22] Speaker 00:
You need a lesser degree of showing of relatedness.

[00:25:24] Speaker 00:
And the converse is true.

[00:25:26] Speaker 00:
If the goods are identical, you need

[00:25:28] Speaker 00:
lesser degree of showing of the marks.

[00:25:30] Speaker 00:
And so when you're looking at the whole likelihood of confusion question, these things get weighed and evaluated in that context.

[00:25:36] Speaker 00:
So I think it's possible, but I don't know if it would change the outcome.

[00:25:40] Speaker 00:
The other thing I would add in preparing for argument, I did go back and look at other cases just to confirm that this sense of relatedness for these kinds of goods has existed for a long time grounded in case law findings as well, going back to

[00:25:55] Speaker 00:
1965, where this court's predecessor held, now they were identical marks, but licorice and macadamia nuts under the marks Royal Hawaiian.

[00:26:05] Speaker 00:
The goods are closely related in use.

[00:26:07] Speaker 00:
That was the basis there.

[00:26:08] Speaker 00:
There was another case in 1966.

[00:26:10] Speaker 01:
Wait, what was closely related?

[00:26:11] Speaker 01:
Liquor and macadamia nuts?

[00:26:12] Speaker 00:
Liquor and macadamia nuts.

[00:26:14] Speaker 00:
It was Castle and Cook versus Seagram at 346 F second, 621.

[00:26:17] Speaker 04:
In other words, you're having a drink and there's a little bottle, a dish of nuts.

[00:26:23] Speaker 00:
Yes.

[00:26:24] Speaker 00:
Did you expect them to come from the same source?

[00:26:26] Speaker 00:
Yeah.

[00:26:27] Speaker 00:
The board's finding of no likelihood of confusion was reversed in that case.

[00:26:31] Speaker 00:
And also in the case of Schenley versus Fournier,

[00:26:34] Speaker 00:
which is a 357F2nd 395, and that's from 1966.

[00:26:39] Speaker 00:
There the registered mark was three feathers in a design format for whiskey, and the applicant's mark was two feathers with some feathers designed for pickled, branded, spiced, and preserved fruit.

[00:26:50] Speaker 00:
And the court found that the relationship between some of the products, there the whiskey and the branded fruit, to be such that the average purchaser would be justified in assuming and would be likely to assume that the goods are of common origin.

[00:27:01] Speaker 00:
So where we have evidence like this here that the same mark

[00:27:04] Speaker 00:
These goods are offered under the same market to consumers.

[00:27:07] Speaker 00:
That's the kind of relatedness evidence that's very solid and that we care about here.

[00:27:11] Speaker 00:
So unless the court has any further questions.

[00:27:14] Speaker 04:
Thank you, counsel.

[00:27:16] Speaker 04:
Mr. Kamais has a little time left.

[00:27:20] Speaker 04:
Three and a half minutes if you need it.

[00:27:23] Speaker 02:
Yes, you have only a few notes.

[00:27:33] Speaker 02:
Definitely the consumers in this case is an important factor.

[00:27:38] Speaker 02:
A person that comes to my mind not that I'm an avid consumer of alcohol, but when somebody goes to the store to purchase a wine or whiskey or something, I think to give an example, for example, you could have a black label, which actually is a pretty famous trademark

[00:28:04] Speaker 02:
whiskey, if I found, and this is a hypothetical scenario, if I saw a candy named Black Label, necessarily I do not necessarily have to associate the same.

[00:28:18] Speaker 02:
Why?

[00:28:18] Speaker 02:
Because I think they're in different channels of trade.

[00:28:22] Speaker 02:
Why do I bring this sort of example?

[00:28:25] Speaker 02:
It's because I think the consumers are sometimes specialized in a way, people that consume

[00:28:33] Speaker 02:
or are sophisticated.

[00:28:35] Speaker 02:
The people that consume alcoholic beverages, especially these kind of products, we feel that they are somehow specialized.

[00:28:43] Speaker 02:
We have made that argument in our brief.

[00:28:46] Speaker 02:
And I think obviously there are plenty of decisions that talk about products that are consumed by people that have a higher degree of specialization.

[00:28:58] Speaker 02:
We feel that alcohol and candy are so distinctive

[00:29:03] Speaker 02:
in terms of the kind of goods that they are.

[00:29:06] Speaker 02:
And the people that consume alcoholic beverages, such as whiskey, Baileys, Kahlua, that they would not be confused if they find, obviously, if they encounter a product in the market that is exactly the same, the same colors, the same.

[00:29:21] Speaker 02:
They might think it comes from the same source.

[00:29:23] Speaker 02:
And we are in the examples that were provided by the

[00:29:29] Speaker 02:
Trademark examiners are really famous.

[00:29:31] Speaker 02:
Trademarks, Kahlua, Bailey's, all of those are really famous and well-known trademarks in the market.

[00:29:40] Speaker 03:
So I wanted to point that out because- Can I ask you just a quick question on the record?

[00:29:43] Speaker 03:
Was there anything in the record to indicate a dispute about whether chocolates are candy or not, or was that accepted?

[00:29:51] Speaker 02:
No.

[00:29:51] Speaker 02:
What we did found, and we present arguments on the record, is that one of the

[00:29:58] Speaker 02:
products that was identified in the trademark registration for Cañaveral, not C. Cañaveral, which is Avalance, was ice cream.

[00:30:09] Speaker 02:
And ice cream, there are decisions that say that ice cream, which is a dairy product, are non-related to alcoholic beverages, such as, you know, Kahua and all those, or liquors.

[00:30:24] Speaker 02:
And that there is case law that specifically

[00:30:27] Speaker 02:
has established that those products are unrelated.

[00:30:30] Speaker 02:
In terms of chocolate, no, I did not find any case law that ruled in that sense that they're unrelated products.

[00:30:39] Speaker 02:
But ice cream, yes.

[00:30:41] Speaker 02:
And that was not mentioned in the appeals brief for the examiners.

[00:30:48] Speaker 02:
Thank you, counsel.

[00:30:49] Speaker 02:
The case is submitted.