[00:00:00] Speaker 01:
The next case for argument is 21013, John Bargans versus P.C.

[00:00:06] Speaker 01:
Richard and Sung Wong Island, Mr. Lo Cicero.

[00:00:11] Speaker 01:
Please proceed.

[00:00:12] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:00:16] Speaker 04:
This court should reverse the board's finding that there's a lack of confusion between the wills.

[00:00:23] Speaker 03:
This is Judge Wallach.

[00:00:25] Speaker 03:
I have a few questions for you.

[00:00:29] Speaker 03:
In the blue brief at three, you say you were unaware of P.C.

[00:00:33] Speaker 03:
Richard's marks at the time you selected the Whizgear mark.

[00:00:36] Speaker 03:
Was a search conducted?

[00:00:38] Speaker 03:
No, Your Honor.

[00:00:40] Speaker 03:
Okay.

[00:00:40] Speaker 03:
In the blue brief at five, you described $1.8 million that P.C.

[00:00:46] Speaker 03:
Richard's paid for the registered marks and associated goodwill as a minimal amount.

[00:00:51] Speaker 03:
How do you qualify that as minimal?

[00:00:53] Speaker 03:
What was your basis?

[00:00:54] Speaker 04:
In the context of a large nationwide retailer like P.C.

[00:00:59] Speaker 04:
Richards, which has, I believe, 66 retail stores, and we believe that's a minimal amount in that context, in the context since it was purchased at a bankruptcy sale some years ago.

[00:01:12] Speaker 03:
Okay.

[00:01:12] Speaker 03:
Was there any evidence supporting those, that minimal?

[00:01:18] Speaker 04:
No, Your Honor.

[00:01:20] Speaker 04:
It was counsel's characterization.

[00:01:22] Speaker 03:
Okay.

[00:01:23] Speaker 03:
In the great brief at 16, you say there's, quote, no evidence that the promotions marked as the whiz deals have changed over time.

[00:01:33] Speaker 03:
But Mr. Palmer's affidavit at J-457 says that the products selected as whiz deals, and he says, change periodically.

[00:01:43] Speaker 03:
And that's repeated other places.

[00:01:46] Speaker 03:
Is that correct or not?

[00:01:50] Speaker 04:
Your Honor, the

[00:01:53] Speaker 04:
Yes, that is exactly what Mr. Palmer said.

[00:01:56] Speaker 04:
There's no documentary evidence that any of them change over time.

[00:02:00] Speaker 04:
And the point there that we sought to make is that... But his affidavit is, is it not?

[00:02:08] Speaker 03:
Yes, sir.

[00:02:09] Speaker 03:
Okay, okay.

[00:02:12] Speaker 03:
In the gray brief at 21, you say the court can take judicial notice that nobody beats the whiz direct mark.

[00:02:23] Speaker 03:
does not appear on PC's Richard's website, quote, as of the time the instant reply brief was finalized, and it includes a link.

[00:02:33] Speaker 03:
How can we take judicial notice of that?

[00:02:36] Speaker 03:
What's our authority for doing that?

[00:02:38] Speaker 03:
And how is that proper evidence, by the way?

[00:02:41] Speaker 04:
I think it would not be proper evidence because, of course, it was the time period of reference is, of course, after the close of evidence.

[00:02:51] Speaker 04:
But in the context of internet websites and the dynamic nature of those websites, then we think it's appropriate for the court to consider the way one can view a website at a particular time.

[00:03:08] Speaker 04:
It's not more than that, Your Honor.

[00:03:09] Speaker 03:
Worthy for that.

[00:03:12] Speaker 04:
No, Your Honor.

[00:03:13] Speaker 03:
I'm sorry?

[00:03:14] Speaker 04:
No, Your Honor, other than the general way in which judicial notice can be taken by a court.

[00:03:22] Speaker 03:
OK.

[00:03:23] Speaker 03:
One other question.

[00:03:25] Speaker 03:
In the gray brief at 22, you claim that you previously raised the issue of whether PC Richard was using its marks for retail services, citing the one line in your trial brief which says, thus the WIS deal in no way indicates a source of retail services.

[00:03:45] Speaker 03:
Is this everything you have about having raised the issue?

[00:03:49] Speaker 04:
Yes, Your Honor.

[00:03:49] Speaker 04:
We're not pressing that point.

[00:03:51] Speaker 03:
Okay, okay, thanks.

[00:03:53] Speaker 03:
Go ahead.

[00:03:54] Speaker 04:
Your Honor, on the issue of likelihood of confusion, the board committed legal errors, legal errors, which are subject to this Court's de novo review in at least three ways.

[00:04:06] Speaker 04:
First, it committed a legal error by failing to give sufficient weight to the strength of the mark factor, since it found that the marks owned by P.C.

[00:04:15] Speaker 04:
Richards are inherently and commercially weak.

[00:04:20] Speaker 04:
board committed legal error by failing to give sufficient weight to the actual confusion factor, since it found no actual confusion despite six years of coexistence and, importantly, an ample opportunity for confusion to occur.

[00:04:35] Speaker 04:
And third, the court committed legal error by ignoring legal precedent in determining the similarity of the marks factor.

[00:04:42] Speaker 04:
Because these marks are indisputably weak, customers have learned to distinguish marks based on minute distinctions

[00:04:49] Speaker 04:
and the mark should not have been found somewhere.

[00:04:52] Speaker 01:
So... Can I move you... I mean, I don't want to interrupt your chain of thought, but you left off of that the abandonment issue.

[00:05:00] Speaker 01:
Are you giving up on that or are you still pressing that on appeal?

[00:05:04] Speaker 04:
We are pressing that on appeal, Your Honor, but we think that the board's attention is most properly focused on the likelihood of confusion issue.

[00:05:13] Speaker 01:
Okay, then proceed with that, sure.

[00:05:16] Speaker 04:
Yes, Your Honor.

[00:05:17] Speaker 04:
This is the trademark, this is perhaps the unique trademark case where the trademark owner, P.C.

[00:05:23] Speaker 04:
Richards, has not proved sales.

[00:05:26] Speaker 04:
There's no evidence of any sales based on retail store services for the WIDS and nobody beats the WIDS.

[00:05:36] Speaker 04:
In fact, the board was right and more than substantial evidence supports the board's findings that these marks are so weak that they should be given a restricted scope of protection.

[00:05:46] Speaker 04:
These marks are inherently weak.

[00:05:49] Speaker 04:
The WIS is a suggestive term connoting good quality or skill as the board found.

[00:05:55] Speaker 04:
Suggestive marks are of course significantly weaker than arbitrary or fanciful marks and the term is at best laudatory and therefore weak.

[00:06:05] Speaker 04:
The board found 37 registrations and nine websites including the word WIS in related product areas

[00:06:15] Speaker 04:
And this further demonstrates that these marks are relatively weak and entitled to only narrow protection.

[00:06:21] Speaker 04:
Of course, the other way you evaluate trademark strength is commercial strength.

[00:06:25] Speaker 04:
And here the board correctly found that the marks don't have any renown.

[00:06:31] Speaker 04:
P.C.

[00:06:31] Speaker 04:
Richard is barely using these marks.

[00:06:34] Speaker 04:
Only single landing space.

[00:06:36] Speaker 01:
So far you're agreeing with the board.

[00:06:38] Speaker 04:
We're agreeing with the board's factual findings.

[00:06:41] Speaker 04:
Okay?

[00:06:42] Speaker 04:
And their factual findings that the marks are very weak and that there was no actual confusion are of course correct.

[00:06:48] Speaker 04:
Where we disagree is in the weakness of the mark factor which have been given more weight.

[00:06:56] Speaker 04:
In other words, because the marks are so weak,

[00:07:00] Speaker 04:
And the weaker the marks are, then the closer an applicant's marks can come without causing a likelihood of confusion and thereby invading the comparatively narrow scope of protection as this court held in the Chief Generation case.

[00:07:15] Speaker 02:
So you agree with the board's assessment?

[00:07:19] Speaker 02:
of the various factors.

[00:07:21] Speaker 02:
As I gather, you don't contend that they missed one of the factors altogether.

[00:07:26] Speaker 05:
I think the one that they may have missed pretty much altogether, Your Honor, is the good faith.

[00:07:31] Speaker 02:
I'm sorry.

[00:07:32] Speaker 02:
I missed what you said there at the beginning.

[00:07:35] Speaker 02:
Could you repeat what you said?

[00:07:36] Speaker 04:
Yes.

[00:07:37] Speaker 04:
I would say that the one factor that we think they missed in answer to your question is good faith.

[00:07:44] Speaker 04:
The evidence is uncontroverted, but at the time we selected the mark,

[00:07:48] Speaker 04:
We were not aware of the whiz.

[00:07:50] Speaker 04:
We were not aware of nobody beats the whiz.

[00:07:53] Speaker 04:
And the board should have, because there was evidence, unconservative evidence, of course, by the principal of John Bargain, that the board missed it in your honor's time.

[00:08:04] Speaker 02:
So the essence of your argument, as I understand it, is to focus on what you deem to be a mis-weighing of the factors by the board.

[00:08:16] Speaker 02:
Yes, they got the factors right, but no, they didn't give each of the factors that you think should have been given more weight the weight that it should have been given.

[00:08:25] Speaker 02:
That's right, your honor.

[00:08:27] Speaker 04:
That's correct.

[00:08:28] Speaker 04:
In particular, the marks are dissimilar.

[00:08:36] Speaker 04:
There's no question they are dissimilar.

[00:08:38] Speaker 04:
With give is one word, the with is two, and nobody meets with the with is four.

[00:08:43] Speaker 04:
Armark includes the word gear.

[00:08:47] Speaker 04:
PC Richard's mark does not.

[00:08:49] Speaker 04:
Armark begins with whiz.

[00:08:51] Speaker 04:
Whiz is the last element of their marks.

[00:08:54] Speaker 04:
Nobody beats the whiz means the whiz is cost-conscious and has unbeatable prices.

[00:08:59] Speaker 04:
Whiz gear has no such meaning.

[00:09:01] Speaker 04:
The fact, first of all, that the marks are to be, of course, considered in their entirety.

[00:09:09] Speaker 04:
That's the bedrock principle of trademark law.

[00:09:12] Speaker 04:
And so-called weak or descriptive elements of a mark, like gear in this case, are nonetheless to be considered in the likelihood of confusion analysis.

[00:09:21] Speaker 04:
And here, because there are so many third-party uses, and the mark is so weak that the board simply made a mistake

[00:09:31] Speaker 04:
in its weighing, and of course this court has the right and the obligation to reconsider that issue de novo, that there should have been a finding that the marks are dissimilar and that therefore there's no likelihood of confusion.

[00:09:51] Speaker 02:
As I said earlier, this case is... If we were to find that the board was correct in concluding that the marks

[00:10:01] Speaker 02:
are similar.

[00:10:03] Speaker 02:
That is, say, rejecting the argument that whizgear adds something significant to the term whiz, for example, and instead conclude that whizgear is really just effectively identical to whiz.

[00:10:21] Speaker 02:
How would that affect your analysis?

[00:10:24] Speaker 04:
I think it would not affect the ultimate conclusion because, you know,

[00:10:30] Speaker 04:
There are similarities between the mark.

[00:10:33] Speaker 04:
That's uncontrovertible and we wouldn't waste the court's time by arguing that they're not.

[00:10:38] Speaker 04:
But we think that the context of such a weak trademark means that those dissimilarities are not sufficient

[00:10:47] Speaker 04:
that those similarities, excuse me, are not sufficient to lead to a likelihood of confusion.

[00:10:52] Speaker 02:
So you would say this case would come out the same way even if the mark that you were using was whiz, or for that matter, nobody beats the whiz?

[00:11:03] Speaker 04:
That's an interesting hypothetical, I don't think so.

[00:11:06] Speaker 04:
I think, I would say the answer to your honest question is no.

[00:11:10] Speaker 02:
Okay, you don't think it would come out the same way?

[00:11:12] Speaker 04:
I don't think it would come out the same way.

[00:11:15] Speaker 04:
Because what happened is that because the marks are so weak, both inherently and because of commercial weakness, that these minute differences are sufficient to demonstrate that there's no likelihood of confusion.

[00:11:30] Speaker 04:
In this case, aside from being unique because the plaintiff has never sought to prove itself, it's also unique because most cases that arise from the TTAB do not involve actual confusion as a particularly relevant factor.

[00:11:45] Speaker 04:
And that's because usually there's no opportunity for actual confusion to occur.

[00:11:51] Speaker 04:
But here the board made a specific factual finding supported by more than substantial evidence that in fact there was an ample opportunity for actual confusion to occur and none has occurred for six years.

[00:12:04] Speaker 04:
Why is that?

[00:12:05] Speaker 04:
It's because the WIDS marks are so weak that even the minimal differences between the registrants' marks and our marks

[00:12:15] Speaker 04:
are sufficient to preclude a likelihood of confusion.

[00:12:18] Speaker 01:
Okay.

[00:12:19] Speaker 01:
I'm going to cut you off because I think I heard the bell go off.

[00:12:21] Speaker 01:
Am I correct, Patrick?

[00:12:23] Speaker 04:
Yes.

[00:12:24] Speaker 01:
All right.

[00:12:25] Speaker 01:
Thank you.

[00:12:25] Speaker 01:
Why don't we reserve your rebuttal time and hear from the other side?

[00:12:28] Speaker 04:
Yes, Your Honor.

[00:12:37] Speaker 01:
Ms.

[00:12:37] Speaker 01:
Gutierrez, ready?

[00:12:39] Speaker 00:
Yes.

[00:12:40] Speaker 00:
Good morning, Your Honor.

[00:12:42] Speaker 00:
I would like to just jump in and start right off with the points of error that were raised here.

[00:12:50] Speaker 00:
But before I do, I would like to focus on the fact that the balancing tests that must be conducted with the DuPont factors vary from case to case.

[00:13:02] Speaker 00:
And the board is entitled to focus on those dispositive factors that it believes are much more important based on the particular facts

[00:13:11] Speaker 00:
of each case.

[00:13:12] Speaker 03:
Here, the board... Counsel, this is Judge Wallach.

[00:13:19] Speaker 03:
Counsel, can you hear me?

[00:13:22] Speaker 00:
Yes, Your Honor.

[00:13:24] Speaker 03:
Okay.

[00:13:25] Speaker 03:
In the blue brief at 30, JB argues that you failed to present any evidence that from June 2013 to October 2015, your website, www.thewiz.com,

[00:13:40] Speaker 03:
provided information on how to order products over the phone.

[00:13:44] Speaker 03:
I couldn't find it.

[00:13:46] Speaker 03:
Is there any such evidence in the record?

[00:13:49] Speaker 00:
Yes, there is.

[00:13:50] Speaker 00:
There is the testimony of Tom Palmer, the Chief Financial Officer, where... Yes?

[00:14:01] Speaker 03:
Just give me a record site.

[00:14:03] Speaker 00:
Sure.

[00:14:04] Speaker 00:
If you just give me one moment, I'd be happy to find it.

[00:14:24] Speaker 00:
That was the July 2013 to 2015 timeframe.

[00:14:27] Speaker 00:
Correct, Your Honor?

[00:14:29] Speaker 03:
Please.

[00:14:30] Speaker 00:
Yes, that's Appendix 464 at paragraph 43.

[00:14:34] Speaker 03:
Thank you.

[00:14:38] Speaker 00:
You're welcome.

[00:14:47] Speaker 00:
So as I was saying, the factors, the board can give certain factors more determinative weight.

[00:14:54] Speaker 00:
Those factors that it believes are dispositive.

[00:14:56] Speaker 00:
In this case, the board deemed the very closely related goods and services to be dispositive, similarity of the goods, and the overlap of the customers who are not sophisticated.

[00:15:10] Speaker 00:
So because the goods and services travel in the exact same trade channels

[00:15:15] Speaker 00:
directed to the exact same customers and the similarity of the marks were so apparent that a likelihood of confusion was deemed to exist.

[00:15:25] Speaker 00:
Now, the first error ascribed by council was that he claimed that the board found that the marks were inherently and commercially weak.

[00:15:40] Speaker 00:
However, that's really not what the board found.

[00:15:44] Speaker 00:
What the board did was exactly what this court has said it needed to do in juice generation, which is it must assess the inherent strength of the mark, which it found the marks were arbitrary with a suggestive connotation.

[00:16:01] Speaker 00:
And the reason it found the suggestive connotation is because this court in juice generation said that boards must look at third party use

[00:16:11] Speaker 00:
as well as third-party registrations to determine if there might be a common understanding of what a word might mean.

[00:16:20] Speaker 00:
And parsing out all of that evidence is very critical because the strength of a mark is not a binary factor.

[00:16:30] Speaker 00:
It varies along the spectrum from very strong to very weak.

[00:16:34] Speaker 00:
This court explained that in juice generation and in in-ray cores, both cited in our brief,

[00:16:39] Speaker 00:
And what the board must do is parse out all that evidence to determine where on the spectrum the appellee's marks fall.

[00:16:48] Speaker 00:
And that's exactly what this board did.

[00:16:51] Speaker 00:
And after conducting that analysis, which the board analyzed the entire body of evidence, focusing on six trademarks set out in its opinion, as well as 10 websites, those were the ones that the board found most relevant.

[00:17:06] Speaker 00:
The other ones were not found relevant.

[00:17:08] Speaker 00:
Copeland-Smith, this court, fully set forth in Copeland-Smith, also cited in our brief.

[00:17:14] Speaker 00:
It's very important for the board to parse out all of the irrelevant third party registrations and websites, which is exactly what the board did here.

[00:17:25] Speaker 00:
And when the board focused on the six trademarks and the nine websites, like in Ray Copeland-Smith,

[00:17:34] Speaker 00:
it found that there indeed was a suggestive component to the otherwise arbitrary mark.

[00:17:41] Speaker 00:
So what the board did here was attempt to find where on the spectrum of very strong, which would be the arbitrary mark, whiz.

[00:17:51] Speaker 00:
However, because of the suggestive connotation it deemed to have based upon the analysis this court said it needed to do in juice generation,

[00:18:02] Speaker 00:
it found that it did have a suggestive connotation and therefore it would not be entitled to a very broad scope of protection.

[00:18:10] Speaker 00:
However, it was entitled to a somewhat narrow scope of protection because of the similarity of the goods, the similarity of the marks, and because the customers overlap.

[00:18:22] Speaker 00:
So here the board did not find

[00:18:24] Speaker 00:
that these marks were inherently weak.

[00:18:27] Speaker 00:
Quite to the contrary, the board found that they were not so weak that they... So what is the consequence?

[00:18:33] Speaker 01:
I mean, your friend, this is Judge Proff, your friend is arguing really about weighing the various factors, and we all agree, obviously, that the board concluded that it should, the mark should be given a restricted scope of protection.

[00:18:46] Speaker 01:
So why was that given, was that conclusion given sufficient weight in the board's analysis, in your view?

[00:18:53] Speaker 00:
Yes, it absolutely was.

[00:18:55] Speaker 00:
In fact, what the board explains is that because of the likelihood that unsophisticated customers would come into contact with these very similar marks in the very same trade channels over websites, all the customers both shop by websites, the WIS customers and the WIS gear customers shop on websites for these exact same goods.

[00:19:23] Speaker 00:
the board said yes, this is exactly the situation where these two dispositive factors, the similarity of goods and the relatedness, I'm sorry, the similarity of the marks and the very close relatedness of the goods, this is the precise situation where those dispositive factors would require protection, a restricted scope of protection, meaning not all, and the board said this specifically, not every mark that uses

[00:19:51] Speaker 00:
the whiz in it is going to be protected, but those that are so similar that a customer could deem there be a sponsorship or an affiliation must be, they must be protected against those marks.

[00:20:06] Speaker 00:
And this court made clear in Copeland Smith and in Coors and in Stone Lion that even

[00:20:16] Speaker 00:
Suggestive or highly suggestive marks are entitled to protection where there is a likelihood of confusion because of the similarity of the marks, the same trade channels, and a very high relationship between the goods and services.

[00:20:34] Speaker 02:
And those are exactly the factors we have here.

[00:20:37] Speaker 02:
Counsel, this is Judge Bryson.

[00:20:39] Speaker 02:
I think your opposing counsel said, and I hope I'm not misquoting him,

[00:20:46] Speaker 02:
but that there was no evidence of any sales that you made under these marks, presumably going back to the time that you acquired the marks.

[00:20:57] Speaker 02:
Is there any evidence to the contrary?

[00:20:59] Speaker 00:
Yes, there is evidence of sales.

[00:21:02] Speaker 00:
Of course there is, because these marks were used as, first they were their own websites, and then they were incorporated and brought into the overall branding on the PC Richard website.

[00:21:15] Speaker 00:
Go ahead.

[00:21:17] Speaker 00:
I was going to give you the appendix site for that, yes.

[00:21:20] Speaker 00:
So the sales information for how these are used are throughout the, I'll give you that first appendix site and then the sales.

[00:21:31] Speaker 00:
Appendix 457 through 468.

[00:21:37] Speaker 00:
Okay.

[00:21:39] Speaker 00:
And then I'd like to give you the precise paragraph and the page references for sales.

[00:21:45] Speaker 00:
All right.

[00:21:53] Speaker 00:
Okay, that would be Appendix 467, paragraph 55, and 56.

[00:22:07] Speaker 00:
Okay, thank you.

[00:22:09] Speaker 00:
You're very welcome.

[00:22:14] Speaker 00:
So continuing on to the second, so it's quite clear that the board here gave due consideration to all the evidence, found where on the spectrum, as this court directed in juice generation, the strength of the mark falls, and found that because of the similarity of the marks and the

[00:22:36] Speaker 00:
close relationship of the goods and the exact same customers and trade channels, that those were the dispositive factors in this case, while considering the other factors and while giving these marks a somewhat narrow scope.

[00:22:52] Speaker 00:
As to the similarity of the marks, the board followed this court's directive in Stratis,

[00:23:03] Speaker 00:
Both, what the, what the appellant is arguing is that different conclusions should have been drawn and he's arguing that the exact arguments that were made and rejected by the board should just be found to be different and that the facts should, a different conclusion on the facts should be drawn, which is in Stratis's court has said not what is

[00:23:28] Speaker 00:
what should be done here, that basically if the findings are based on substantial evidence, they should be sustained.

[00:23:35] Speaker 00:
And they were here.

[00:23:36] Speaker 00:
There is no doubt that the word generic, which forms the basis of the appellant's argument on similarity, the generic word gear simply does not change the commercial impression of the mark whiz gear.

[00:23:52] Speaker 00:
And so when you look at the dominant portions of whiz and whiz gear, it became very apparent

[00:23:58] Speaker 00:
that customers, the same customers encountering similar goods, almost the same goods and services would certainly be confused here.

[00:24:07] Speaker 00:
And that the generic word here simply does not change that commercial impression.

[00:24:14] Speaker 00:
And finally, the actual confusion weight that council argues should outweigh all of the other very strong dispositive factors here

[00:24:25] Speaker 00:
The court simply said that, yes, it does weigh against finding the likelihood of confusion.

[00:24:31] Speaker 00:
However, the other factors, again, the same customers encountering very similar goods and services, closely related goods and services in the exact same trade channel, would indeed outweigh that factor.

[00:24:49] Speaker 00:
So here, what is quite clear is that the board did the exact analysis that it should have.

[00:24:55] Speaker 00:
It weighed all of the evidence, all of its findings were found on substantial evidence.

[00:25:00] Speaker 00:
The appellant's arguments here really amount simply to asking this board to find different conclusions based on the record evidence, which all of the cases, Stone Lion, Coors, Inray Chatham, Stratus, all of the cases cited in our brief say is just simply not a valid basis for appeal.

[00:25:17] Speaker 00:
There's nothing improper about what the board did here, and it didn't follow all the precedent of this course to the T, in fact.

[00:25:28] Speaker 00:
Did the exact analysis that Jewish generation found that it should do.

[00:25:33] Speaker 00:
In effect, what the appellant is focusing on is a factor, the strength of the mark, which is very fact-intensive, as this court has repeatedly held,

[00:25:46] Speaker 00:
in Ray Chatham and in Stratus and in Stone Lion.

[00:25:50] Speaker 00:
Again, what the board found here is not that the marks were weak, the marks were arbitrary with a, the board found the marks are arbitrary with a suggestive connotation and that it did not have rise to the level of fame in terms of commercial strength.

[00:26:10] Speaker 00:
So what the, basically what they found was that the board, what the board found was that the mark was not well known.

[00:26:16] Speaker 00:
which is exactly the fact pattern of Stone Lion that this board has said was correct and that even though the mark is not well known, that does not mean that there is not confusion where the customers are the same and the goods and services are the same and where the customers are not sophisticated.

[00:26:36] Speaker 00:
That's exactly what we have here and those are exactly the factors that the board weighs much more heavily than

[00:26:45] Speaker 00:
the lack of actual confusion.

[00:26:51] Speaker 00:
The argument that the appellant makes here that because there is a restricted scope provided to the words with that somehow that prevents the likelihood of confusion here is really improper because that would mean that

[00:27:13] Speaker 00:
any time there is a restricted scope of protection, that those marks should receive no protection.

[00:27:20] Speaker 00:
But in fact, the restricted scope is exactly what the board gave these marks in saying that where the goods and services are so related, the customers are the same, and the similarity of the marks is so apparent here,

[00:27:39] Speaker 00:
This is precisely the limited scope where those marks should, in fact, be protected.

[00:27:48] Speaker 01:
Okay.

[00:27:49] Speaker 01:
Thank you.

[00:27:50] Speaker 01:
Let's hear from the other side on rebuttal.

[00:27:53] Speaker 04:
Thank you, Your Honor.

[00:27:54] Speaker 04:
Very briefly, there's no dispute that the board did find that these marks were entitled to a restricted scope of protection.

[00:28:07] Speaker 04:
And that was because they were both their inherent and their commercial weaknesses.

[00:28:13] Speaker 04:
The evidence of sales question that was asked by the court, there's no evidence of sales in the seven-year period after which the P.C.

[00:28:25] Speaker 04:
Richard stopped recording orders.

[00:28:27] Speaker 04:
But most important, there's no evidence of any sales that they made during the period of time when John Bargains has begun to use this more.

[00:28:37] Speaker 04:
The court never said, by the way, that GEAR was generic, only that it was descriptive.

[00:28:44] Speaker 04:
But the fact that it's descriptive doesn't, of course, as I said earlier, doesn't detract from the fact that you look at the marks in their entirety.

[00:28:52] Speaker 04:
I mean, even in a different context, the Supreme Court in bookings.com said that you must look at a mark in its entirety for all trademark analyses, including this one.

[00:29:05] Speaker 04:
The fact that there was no actual confusion, we think, carries the day.

[00:29:10] Speaker 04:
The proof of the pudding is in the eating.

[00:29:13] Speaker 04:
These are weak marks entitled to a restricted scope of protection.

[00:29:17] Speaker 04:
No one has ever been confused, and no one is likely to be.

[00:29:22] Speaker 04:
With regard to abandonment, we just rest on our briefs, Your Honor.

[00:29:25] Speaker 01:
Thank you.

[00:29:26] Speaker 01:
We thank both sides, and the case is submitted.

[00:29:28] Speaker 01:
Thank you.

[00:29:29] Speaker 00:
Thank you, Your Honor.