[00:00:40] Speaker 04:
Our second case this morning is number 19-1073, NRA 40 Industries Inc.

[00:00:49] Speaker 04:
Mr. Cochran, all right.

[00:01:28] Speaker 03:
Whether applicant's mark presents a pattern, design or shape that is distinctive, and whether the colors alone... Inherently distinctive, right?

[00:01:41] Speaker 01:
Excuse me?

[00:01:41] Speaker 01:
Inherently distinctive, right?

[00:01:46] Speaker 04:
Under your theory, it seems to me that the specimens of the mark don't correspond to the mark itself.

[00:01:57] Speaker 04:
You seem to be trying to

[00:02:00] Speaker 04:
We get a mark which includes any shading from one color to another as opposed to the specifics of the mark that was presented because of this inconsistency between the specimens and the mark.

[00:02:24] Speaker 03:
Well, the specimens are presented to the trademark office to show use of the mark in commerce.

[00:02:26] Speaker 02:
Right, but we need consistent use.

[00:02:28] Speaker 02:
You need the use to be consistent.

[00:02:33] Speaker 03:
Well, not necessarily, because as long as we have specimens that are, that do correspond to the mark, then those specimens are qualified

[00:02:54] Speaker 04:
But the specimens are suggesting that the mark doesn't require a fixed design.

[00:03:05] Speaker 04:
It suggests that the mark that's being sought is based, in fact, on the use of particular colors without specifying a fixed proportion of those colors in the design.

[00:03:23] Speaker 03:
What page is the?

[00:03:25] Speaker 03:
A30, right?

[00:03:28] Speaker 02:
That's your?

[00:03:30] Speaker 02:
Right.

[00:03:36] Speaker 03:
Because we're seeking registration this month.

[00:03:39] Speaker 02:
I understand, but to follow up on Judge Dyke's question, if you just look at the specimen at A32, for example, I don't know if that's some circular saw blade or something like that, but with the packaging,

[00:03:59] Speaker 02:
The amount of red in that packaging is not the same as the amount of red, relatively speaking.

[00:04:07] Speaker 02:
in your A30 proposed mark.

[00:04:14] Speaker 03:
Well, these pictures are not, they can be the same.

[00:04:18] Speaker 02:
And so the concern, I guess the problem.

[00:04:20] Speaker 02:
The concern here, there's multiple concerns here, but one concern here is when your specimens show a variance in the scheme of your design.

[00:04:32] Speaker 02:
To the point where whatever color pattern you're trying to get a registration on doesn't line up with the actual color scheme in your specimens.

[00:04:52] Speaker 04:
Well, there is in the first footnote to the board decision, there is a reference to the specimen problem.

[00:05:03] Speaker 03:
Well, it should have been raised by the examiner, and we should have had an opportunity to submit specimens.

[00:05:11] Speaker 04:
They say that if this got reversed, that you'd have to submit new specimens, as I understand what they're saying.

[00:05:20] Speaker 03:
And we're glad to do that.

[00:05:22] Speaker 03:
We're glad to submit new specimens.

[00:05:24] Speaker 03:
It's footnote three, actually.

[00:05:24] Speaker 03:
In specimens that actually were in use at the time we fell.

[00:05:27] Speaker 03:
This has been used.

[00:05:30] Speaker 02:
Obviously, the main event is really trying to understand the meaning of Qualitex as well as Walmart and maybe Two Pesos as well.

[00:05:41] Speaker 02:
But if I can just keep going on this proposed mark, what we have here is this kind of

[00:05:53] Speaker 02:
the abstraction of colors that are disembodied from any particular tangible thing.

[00:06:02] Speaker 02:
So is it your view that your mark is for any kind of packaging from this company, Forney Industries, regardless of shape or anything?

[00:06:17] Speaker 02:
I'm trying to understand your conception of what is the scope of your application and what kind of protection you're seeking.

[00:06:30] Speaker 02:
Are you seeking

[00:06:32] Speaker 02:
Anything and everything that will have this color scheme on it or are you being more specific about it in terms of it's just going to be on package backing cards and maybe even more specifically than that square or rectangular shaped package backing cards or is it going back to my original question everything and anything that you might be able to put this color scheme on?

[00:07:01] Speaker 03:
The description

[00:07:02] Speaker 03:
The trademark application says that it's on backer cards or labels.

[00:07:14] Speaker 04:
And that's what we're seeking in this trademark application.

[00:07:15] Speaker 04:
Suppose, if you look at the design, that's at page two of the appendix, suppose the black were twice as large as it is

[00:07:29] Speaker 04:
in that figure.

[00:07:31] Speaker 04:
Would that be covered by the mark?

[00:07:39] Speaker 03:
That's an issue for infringement.

[00:07:40] Speaker 03:
Well, there's a likelihood of confusion.

[00:07:43] Speaker 03:
But it wouldn't be literally within the mark if the black were twice as big.

[00:07:53] Speaker 03:
No, it wouldn't be literally within the mark.

[00:07:55] Speaker 03:
That's the mark that's shown.

[00:07:56] Speaker 03:
We're applying for that mark.

[00:07:59] Speaker 04:
And the visual depiction of the mark governs rather than the verbal description of it, right?

[00:08:15] Speaker 03:
Yes.

[00:08:17] Speaker 03:
But they're both, they both are important and actually what we're wanting.

[00:08:21] Speaker 03:
I mean, you have to look at this in terms of the fact that

[00:08:25] Speaker 04:
Well, what role does the verbal description play?

[00:08:27] Speaker 04:
Because the verbal description is really broad.

[00:08:32] Speaker 04:
It consists of colors red into yellow and a black band are located near the top.

[00:08:46] Speaker 03:
Correct.

[00:08:47] Speaker 03:
Well, that's an attempt to try to verbally describe where the mark is, which we're trying to get protection.

[00:08:49] Speaker 04:
Yeah, but it's a description that's incredibly broad and makes it sound as though

[00:08:54] Speaker 04:
any combination of colors like this, no matter what the proportionality is, would be covered by the mark, which I think would be problematic.

[00:09:04] Speaker 03:
That sounds like trying to trademark the colors as opposed to trademarking a particular design.

[00:09:20] Speaker ?:
That's a 43A common law issue that was raised by the 10th Circuit, not applying really

[00:09:23] Speaker 03:
In the proportion that they're shown in the figure.

[00:09:41] Speaker 02:
Is there anything in the 10th circuit for any opinion that you disagree with?

[00:09:44] Speaker 02:
Or do you essentially agree with it?

[00:09:46] Speaker 02:
Because I think by understanding of

[00:09:49] Speaker 02:
Part of your argument was is that at least for purposes of this mark as depicted in your trademark application, it fulfills whatever requirements that 10th Circuit was contemplating in terms of the specific shape pattern or design.

[00:10:10] Speaker 03:
That is what we were arguing.

[00:10:12] Speaker 02:
So that's why I'm just trying to figure out, is there anything in

[00:10:17] Speaker 02:
The opinion, though, that disagreeable, because obviously there they found that there was no inherently distinctive mark there.

[00:10:30] Speaker 03:
That case was deciding on the fact that there was not a precise verbal description of the mark.

[00:10:39] Speaker 03:
And the mark, as it was described, could cover a number of different things.

[00:10:40] Speaker 03:
And they said it was too amorphous.

[00:10:42] Speaker 03:
Is there anything you disagree with in the 10th Circuit opinion?

[00:10:54] Speaker 04:
But they don't say that this mark that we're dealing with now lacks specific design.

[00:11:07] Speaker 03:
The restatement third of unfair competition is also clear.

[00:11:16] Speaker 03:
It says color can be protected as an element of a trademark when used as part of a design pattern or combination of colors that as a whole is inherently distinctive.

[00:11:27] Speaker 02:
Which opinion is this that you just quoted?

[00:11:30] Speaker 02:
Restatement.

[00:11:32] Speaker 02:
That's the restatement.

[00:11:32] Speaker 02:
That's the restatement.

[00:11:33] Speaker 03:
Okay.

[00:11:41] Speaker 02:
What if your mark was just red and white?

[00:11:47] Speaker 02:
Period.

[00:11:49] Speaker 02:
Half red, half white.

[00:11:51] Speaker 02:
Left hand side is red, right hand side is white.

[00:11:56] Speaker 02:
Would you say that that is a, I don't know, a specific concrete design, shape or pattern that needs to now be evaluated under inherent distinctiveness?

[00:12:09] Speaker 03:
Well, you see, that's a judgment call.

[00:12:11] Speaker 03:
And that's why we're here.

[00:12:12] Speaker 02:
Well, I'm trying to get your views.

[00:12:13] Speaker 02:
I'm trying to get your thoughts on this.

[00:12:15] Speaker 02:
I'm trying to figure out how far you really want the law to go in demanding color marks to be considered under inherent distinctiveness.

[00:12:28] Speaker 03:
I think you have to look at it and you say, is this inherently distinctive?

[00:12:29] Speaker 02:
If you were to take... OK, so in your view, something as simple as two colors like that.

[00:12:36] Speaker 02:
Half white, half red.

[00:12:38] Speaker 02:
Half white, half black.

[00:12:41] Speaker 02:
Now it's like, okay, trademark office, get to work, go figure out if that's inherently distinctive.

[00:12:49] Speaker 03:
No, I don't think it is.

[00:12:56] Speaker 03:
Okay, so then... If you were to swirl those in a particular way, or if you were to create like they do, you know, a copy, and you have a particular design for those two colors, yes.

[00:13:04] Speaker 03:
I think that that could be inherently distinctive.

[00:13:09] Speaker 04:
Ok, do you want to save your bottle time here?

[00:13:17] Speaker 04:
Ah, yes.

[00:13:17] Speaker 00:
Ok.

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

[00:13:30] Speaker 04:
Ms.

[00:13:30] Speaker 04:
Walker?

[00:13:30] Speaker 04:
I'm having trouble seeing why this visual depiction of the mark

[00:13:36] Speaker 04:
isn't a specific design that wouldn't be subject to trademark.

[00:13:44] Speaker 04:
I agree that there's a disconnect between the visual depiction here and the specimens.

[00:13:51] Speaker 04:
That's a problem because it might suggest that the mark goes beyond the specific depiction here.

[00:14:00] Speaker 04:
This seems to be unusual.

[00:14:04] Speaker 04:
It seems to be distinctive with this proportionate black more and then yellow and then shading into orange.

[00:14:11] Speaker 00:
And if it's done in this particular way, why isn't that subject a trademark?

[00:14:22] Speaker 00:
Yes, Your Honor.

[00:14:23] Speaker 00:
And I think that Judge Ten's example of the red and white combination is a good starting point for that principle.

[00:14:26] Speaker 04:
Let's start with the actual design here.

[00:14:31] Speaker 04:
I don't think the fact that this design would be subject to trademark means that the red and white necessarily would be subject to trademark.

[00:14:42] Speaker 04:
I don't think the point is that any depiction of more than one color in a design becomes inherently distinctive.

[00:14:50] Speaker 04:
But this, if you look at this one, this does look distinctive.

[00:14:55] Speaker 00:
Well, I think the question, though, is what is motivating the rationales in both Walmart and the holocaust.

[00:15:04] Speaker 00:
And I was referring to the example that Judge Cheney to then look at two specific examples in the record here for that motivation, the underlying motivation.

[00:15:14] Speaker 00:
So I think both APPS 36, which is an example of the use of the Marquiseur's assessment, shows

[00:15:23] Speaker 00:
The consumers would perceive as nothing more than color, right?

[00:15:35] Speaker 00:
It's a gradient of color, but really when they're seeing it on the shelf, they're going to just see it as nothing more than two sets of colors.

[00:15:42] Speaker 00:
What page is this at?

[00:15:43] Speaker 00:
This is 36.

[00:15:43] Speaker 00:
And this is one of the specimens that the board included in this position.

[00:15:45] Speaker 00:
And then there's another example, which is sort of a zoomed out version of the same thing, which is at Appendix 70.

[00:15:50] Speaker 00:
And again,

[00:15:50] Speaker 02:
I think your argument seems to assume that we're trying to figure out right now whether this particular mark with these particular specimens could be considered inherently distinctive.

[00:16:14] Speaker 02:
But we have a more fundamental question that the board answered, which is that

[00:16:20] Speaker 02:
As a matter of law, there's no way that any proposed mark that's just relying on multiple colors could ever be subject to protection as inherently distinctive.

[00:16:35] Speaker 02:
And so that's really the question here.

[00:16:38] Speaker 02:
Not so much, I mean, we could pick apart these specimens if we wanted to, but now the question is,

[00:16:45] Speaker 02:
Why couldn't some very unique unusual pattern of colors, you know, where the colors are

[00:16:55] Speaker 02:
individually in different shapes and in all relation to each other, then create some kind of very unique standout design.

[00:17:04] Speaker 02:
Why couldn't that serve as indicating source?

[00:17:09] Speaker 02:
Just like any other unique, interesting, inherently distinctive trade dress.

[00:17:20] Speaker 00:
Yes, sir.

[00:17:21] Speaker 00:
And I want to be clear that there's several different inquiries and the question that you just stated.

[00:17:23] Speaker 00:
There's a question of, can there be

[00:17:25] Speaker 00:
And so there's no question here that colors, whether a single color or multiple colors, can serve as a trademark.

[00:17:33] Speaker 00:
I'm talking about inherent distinctiveness.

[00:17:41] Speaker 00:
Right, and then the question is, but I just want to be clear that there's, at that sort of professional level, then there's a question of whether, as the board articulated here, that color marks, whether it's a single color or a combination of colors,

[00:17:52] Speaker 00:
or are of a nature that could be inherently distinctive.

[00:18:01] Speaker 00:
But the board did articulate a test, a more simple test than the Seabrook test, which could be the alternative, which is a question of whether the colors are in a distinct pattern or design.

[00:18:09] Speaker 00:
So if there is a distinct pattern or design, and I understand Judge Dyke's question to go into that point, is there a distinct design here?

[00:18:14] Speaker 00:
Once you get to the point of is there a distinct design, then the next inquiry would be analysis under the Seabrook test,

[00:18:21] Speaker 00:
The Board actually didn't do that Seabrook analysis here because it looked at Walmart and politics and it found that this was the type of mark where that type of multi-factor analysis would be inappropriate.

[00:18:35] Speaker 02:
But there are... And as I understand, the Board's decision rationale is it included it's unnecessary to go to Seabrook because this is a multi-color mark.

[00:18:46] Speaker 00:
That's right, Your Honor.

[00:18:47] Speaker 00:
Because it found that it didn't include a distinct pattern.

[00:18:49] Speaker 02:
And so what I'm trying to understand from your point of view is can there ever be multiple colors and only multiple colors that can have a pattern for design?

[00:19:06] Speaker 00:
Well, I think there has to be a distinct element to it, and so certainly Leveka is an example.

[00:19:16] Speaker 04:
Why isn't this a distinct pattern where you have various colors and shades of colors in a particular proportion?

[00:19:23] Speaker 04:
Suppose this mark had been rotated 45 degrees.

[00:19:29] Speaker 04:
Would that be a specific design?

[00:19:31] Speaker 04:
The problem is that it starts with a bar of colors at the top and then works down.

[00:19:38] Speaker 00:
Suppose it were rotated at 45 degrees.

[00:19:43] Speaker 00:
I'm not sure that that would make a difference.

[00:19:52] Speaker 00:
And I would say here, the work analysis of whether this included this ink pattern design is on AQPX 7 through 9.

[00:19:56] Speaker 00:
And one of the things that the board was looking at was how consumers would perceive this.

[00:19:58] Speaker 00:
The fact that this is located on a backer card, and we know that from our description, and it serves as a background carrier for other elements on the packaging, indicated to the board that this is of the nature, that consumers aren't going to perceive it on day one.

[00:20:21] Speaker 00:
Whether other designs might, or whether other color schemes might include a particular distinct line is a factual question that would be satisfied on that

[00:20:27] Speaker 02:
I'm a little confused.

[00:20:30] Speaker 02:
Are you saying that maybe there could have been a different, more complex, more unusual color scheme other than the one that's provided at A30 that the board would have then found, oh, okay, what we have here is

[00:20:49] Speaker 00:
something that should be considered for inherent distinctiveness.

[00:21:01] Speaker 02:
Well, it wasn't clear to me if that was because it expected that the color scheme here had to be confined to a particular shape.

[00:21:14] Speaker 02:
Maybe like a diamond shape of this particular color scheme that's printed on the product packaging somewhere, almost like a logo.

[00:21:24] Speaker 02:
And then in that sense,

[00:21:26] Speaker 02:
board would feel comfortable with that, but otherwise it would seem like this board decision rests on the premise that no color scheme, no matter how interesting or unusual for package backing cards would be good enough.

[00:21:45] Speaker 00:
So the board's decision did not rest on the fact that the outline, that there wasn't a distinct peripheral shape of the mark, right?

[00:21:53] Speaker 00:
But that would be a separate inquiry.

[00:21:54] Speaker 00:
And we know that too, because the cabinet trademark office uses SQL in analyzing repeating pattern marks.

[00:22:06] Speaker 00:
So there is a separate analysis for repeating pattern marks.

[00:22:09] Speaker 00:
So if you are in the situation where you have the same pattern of design, that is a situation where it's not simply a color mark.

[00:22:15] Speaker 00:
So we're not suggesting that any design

[00:22:17] Speaker 04:
This is not a distinct design because it's rectangular, is that the idea?

[00:22:25] Speaker 00:
No, it's because there's not really, there's more that defines clearly the nature of the combination of colors here.

[00:22:35] Speaker 00:
You have a gradient that goes from red to yellow and that is not something that you can see as a

[00:22:42] Speaker 02:
We've got black, we've got yellow, we've got red, and then we have a gradient between the yellow and red band that, you know, obviously moves from yellow to red, so it's kind of orangey and pixelated.

[00:23:04] Speaker 02:
So now we're dealing with three colors plus a gradient.

[00:23:13] Speaker 02:
Why can't that potentially be enough?

[00:23:20] Speaker 02:
Enough to be considered a legitimate pattern or design such that now, like all other pattern or design trade dress marks that are applied for, you've got to evaluate it under inherent distinctiveness.

[00:23:36] Speaker 00:
Well, I mean, again, and all I can do is point to the board's decision.

[00:23:41] Speaker 02:
The board considered that and found that it didn't.

[00:23:43] Speaker 02:
Well, I mean, I'm looking at A10, and at the bottom of A10 it says, we find that a color mark consisting of multiple colors applied to product packaging is not capable of being inherently distinctive.

[00:23:55] Speaker 02:
So that feels pretty cut and dried that the agency has taken a position that

[00:24:02] Speaker 02:
Anything that rests on multiple colors applied to product packaging is no good, regardless of how interesting, unique, unusual, striking the particular pattern or design of those colors may be.

[00:24:21] Speaker 00:
But again, it's about whether the design was distinctive and if one was clear that it was defining what a multiple color mark was as one that didn't include a distinct pattern.

[00:24:27] Speaker 04:
But why isn't this a distinctive pattern or design?

[00:24:32] Speaker 04:
I mean, it has a particular proportion between the black at the top and then the other colored shade.

[00:24:37] Speaker 00:
What's not distinctive about that?

[00:24:44] Speaker 00:
The impression that consumers get from this is one that is the same as a single color.

[00:24:52] Speaker 00:
And if this mark has a distinct color pattern or design, then it's hard to see why the red and white combination

[00:24:56] Speaker 00:
that really what you're saying is that there are no multiple color marks that wouldn't include the same pattern of design because as soon as you put two colors together you're necessarily going to have some type of design and the question is whether there's a particular distinct pattern of design that's one that consumers would view as different from color

[00:25:21] Speaker 02:
I guess even if I were to agree that the board somehow implicitly thought that there was a problem with the lack of a pattern or design here, it didn't ever actually articulate why by walking through this particular

[00:25:42] Speaker 02:
This particular depiction, why this is somehow too plain, ordinary, basic, common, whatever words you want to use, such that black, yellow, orange, gradient, red is no good for it, particularly in this order, in this particular proportion.

[00:26:02] Speaker 02:
I don't see any kind of analysis like that.

[00:26:05] Speaker 02:
What I see is a straightforward view that

[00:26:09] Speaker 00:
Qualitex tells us that color marks are no good and this is a color mark because it's got multiple colors.

[00:26:24] Speaker 00:
I mean, the board at APPS 5 says African has not determined to combine its color mark with the uniform, shape, pattern, or other distinctive design.

[00:26:30] Speaker 00:
And then it says the same is varying degrees of fading of red into yellow without any other distinctive design.

[00:26:34] Speaker 00:
I mean, other than observing that, I'm not sure what else the board could do.

[00:26:37] Speaker 02:
I might agree with you that there is variance between the depicted mark and then what is shown to us in the specimens.

[00:26:51] Speaker 02:
But I mean, that's a different question than whether color marks that have

[00:26:56] Speaker 02:
a particular design can ever be considered for inherent distinctiveness, and then just exactly where was the analysis from this board that would suggest that explaining why this particular proposed design is not really a sufficient design to even be considered under the Sebrig factors.

[00:27:17] Speaker 00:
The question is whether or not the board sufficiently defined

[00:27:19] Speaker 00:
What is distinctive design or uniform design?

[00:27:24] Speaker 00:
That's something that this court could re-hand with instructions on what the definition of those terms are or could re-hand for further explanation.

[00:27:37] Speaker 00:
I would caution again though that if this design, if this colors can appear as one that the court finds that the board didn't have substantial evidence to support its finding that there isn't a distinctive design here, it's hard to imagine

[00:27:47] Speaker 02:
Okay, so hypothetically, if there was, if this mark had, I don't know, 15 colors and all kinds of stripes and squares and circles of colors and you're saying, okay, that one would be good enough to be considered for inherent distinctiveness?

[00:28:14] Speaker 00:
And the problem is that it's bars in a rectangular design?

[00:28:28] Speaker 00:
Well, it's the gradient, I think.

[00:28:31] Speaker 00:
There's not a definition here.

[00:28:32] Speaker 00:
It's something that consumers will see as something really other than a single color, right?

[00:28:38] Speaker 00:
Or color, right?

[00:28:39] Speaker 00:
That the impression is color, but it's not of a design.

[00:28:42] Speaker 02:
Just so I understand, the agency believes a mark with multiple colors could potentially be considered inherently distinctive and would need to be examined for inherent distinctiveness, just not this particular one.

[00:29:03] Speaker 00:
If the tessiteric or articulation is combined with a distinct design or pattern, then yes, that would be the type.

[00:29:09] Speaker 04:
Well, suppose it were circular instead of rectangular.

[00:29:12] Speaker 00:
Well, the question here, though, is when it's applied to a backer card.

[00:29:19] Speaker 00:
So if it had a circular shape that was defined, then we're not talking about a color mark.

[00:29:24] Speaker 00:
We're actually talking about a shape.

[00:29:26] Speaker 00:
So here, what we're talking about is something that's applied to the full surface.

[00:29:28] Speaker 00:
And we know that because we have the dotted line on the outside.

[00:29:29] Speaker 00:
And so again, we're only talking about full surface.

[00:29:32] Speaker 00:
Okay, but pattern across the full swath of packaging, that could be considered for inherent distinctiveness.

[00:29:58] Speaker 02:
Even if it's just covers.

[00:30:00] Speaker 00:
The pattern comprises colors.

[00:30:13] Speaker 00:
Pattern comprises colors and repeating patterns are specific shapes in a pattern.

[00:30:17] Speaker 02:
Okay.

[00:30:17] Speaker 02:
If the court has no further questions, I ask that you approve.

[00:30:18] Speaker 02:
Thank you.

[00:30:19] Speaker 02:
Oh, just to confirm, you would think if we say this needs to be understood, this needs to be reviewed for inherent distinctiveness,

[00:30:30] Speaker 02:
It's the Seabrook Factors we would use.

[00:30:35] Speaker 04:
Yes.

[00:30:36] Speaker 04:
OK.

[00:30:36] Speaker 04:
OK.

[00:30:36] Speaker 03:
Thank you.

[00:30:48] Speaker 03:
Mr. Cochran.

[00:30:48] Speaker 03:
Well, we agree that Seabrook Factors are the factors that should be used.

[00:30:52] Speaker 03:
And under the Seabrook Factors, you look at things like, is this a common type or shape or pattern?

[00:30:56] Speaker 03:
Is it common?

[00:30:57] Speaker 03:
in this particular industry or set of goods that are being sold.

[00:31:05] Speaker 03:
And I don't have to go through the Seabrook.

[00:31:05] Speaker 02:
Right, the agency is saying that there needs to be a step zero even before we get to the Seabrook factors.

[00:31:13] Speaker 02:
And that step zero is, do we even have a pattern mark here?

[00:31:21] Speaker 03:
Right, and what they did was they just, they hide behind this term color mark

[00:31:25] Speaker 03:
And which means that the mark only has colors and it doesn't have anything else.

[00:31:32] Speaker 03:
And then they say colors alone cannot be inherently distinctive.

[00:31:38] Speaker 03:
And that's because it's rectangular?

[00:31:44] Speaker 03:
The outer shape is rectangular?

[00:31:48] Speaker 03:
Yeah.

[00:31:48] Speaker 03:
They had an objection to

[00:31:50] Speaker 03:
you know, the fact that we put dots around it and it could be rectangular, circular, oval, whatever, you know, the back of our label.

[00:32:08] Speaker 03:
Yes, I had a problem with that.

[00:32:10] Speaker 04:
You know, I'll give you an example.

[00:32:11] Speaker 04:
What does the dotted line mean?

[00:32:15] Speaker 03:
That it can be any shape?

[00:32:16] Speaker 03:
Well, any shape of any back of our label.

[00:32:20] Speaker 04:
It doesn't have to be right now.

[00:32:32] Speaker 02:
So it's just packing backer cards that you're applying for?

[00:32:37] Speaker 02:
Not just any and all kinds of packaging?

[00:32:42] Speaker 02:
I ask because the first sentence of the description of the mark is the mark consists of the colors red into yellow with a black banner located near the top as applied to packaging for the goods, period.

[00:32:57] Speaker 02:
Then it goes on, the dotted lines merely depict placement of the mark on the packing backer card.

[00:33:06] Speaker 02:
So one way to read those two sentences is packing backer card is an example of the packaging you're trying to get protection for and you're trying to get protection for any and all packaging with this color scheme.

[00:33:20] Speaker 02:
Or you're applying just for

[00:33:23] Speaker 02:
The types of packaging that are known as packing backer cards.

[00:33:26] Speaker 03:
Which one is it?

[00:33:32] Speaker 03:
The latter.

[00:33:33] Speaker 03:
It says the dotted line is merely the big placement of the mark on the packer backing cards.

[00:33:37] Speaker 03:
That's what we're planning for.

[00:33:40] Speaker 02:
And you have packer backing cards that are various shapes, right?

[00:33:45] Speaker 02:
Circles, rectangles.

[00:33:48] Speaker 03:
There's summer squares, summer rectangle.

[00:33:52] Speaker 03:
At least one is circular.

[00:33:54] Speaker 03:
They have 150 products that are sold.

[00:34:06] Speaker 03:
They've sold a half a billion dollars of product with these types of backer cards.

[00:34:09] Speaker 02:
Do you know what the reason is for this particular color scheme they came up with?

[00:34:17] Speaker 02:
I ask because this is welding equipment we're talking about in large part, and I don't know, maybe this looks like a heat gradient in a way.

[00:34:29] Speaker 03:
The issue of functionality was never raised.

[00:34:31] Speaker 02:
I'm not asking about functionality.

[00:34:34] Speaker 03:
And let me tell you that in welding,

[00:34:38] Speaker 03:
I think on that note, we're out of time.

[00:34:44] Speaker 04:
Thank you.

[00:34:45] Speaker 04:
May both counsel the cases submitted.