[00:00:02] Speaker 05:
Okay, good morning everyone.

[00:00:03] Speaker 05:
The first argued case this morning is number 21-13-70, protects financial against dollar financial group.

[00:00:13] Speaker 05:
Mr. McGray.

[00:00:26] Speaker 04:
May it please the court the board erred in holding dollar financial group has priority over birds X by virtue of its prior and unchallenged

[00:00:36] Speaker 04:
Prior and unchallenged 120 registration by determining loan financing encompasses for Texas Pond brokerage and pawn shop services On the issue of priority the board functionally applied more house moreover loan financing does not encompass the retail aspects of

[00:00:57] Speaker 04:
the pawn services and so the board erred in failing to consider the substantial evidence of record.

[00:01:04] Speaker 01:
I don't consider myself an expert about pawn shops and so forth and what they do but wasn't there a lot of evidence presented with respect to the loan services and the stuff that pawn shops do and I guess under a substantial evidence review it's kind of hard to dislodge that is it not?

[00:01:21] Speaker 04:
Well, I think I would say that the loan aspect of the pawn shop services is not something that Britax ever disputed.

[00:01:32] Speaker 04:
We just believe that there's more to it.

[00:01:35] Speaker 04:
There's the loan services side, but then the retail side is a very different part of that.

[00:01:42] Speaker 04:
And so what we believe is that when the board held that the goods or the loan financial services are, they encompass

[00:01:51] Speaker 04:
the PON services, that's a standard that says it envelops it.

[00:01:57] Speaker 04:
It's completely inclusive of all services.

[00:02:00] Speaker 02:
Where does the word encompass come from?

[00:02:04] Speaker 04:
The word encompass, it originated as far as debris, Your Honor.

[00:02:10] Speaker 02:
No, as far as the law.

[00:02:12] Speaker 02:
Is it in the statute book?

[00:02:13] Speaker 02:
If it's in the statute book, what's it in?

[00:02:16] Speaker 02:
It seems to me an odd standard, and a not necessary standard.

[00:02:22] Speaker 04:
Yes, we believe it is an odd standard.

[00:02:24] Speaker 04:
Where we have seen

[00:02:26] Speaker 04:
The word encompassed applied especially by the board is in a situation under a likelihood of confusion analysis where the board has held that in a situation with a registration that has been asserted against a junior applicant and either the applicant defines their services broadly or the registration has broad services, there's a finding that those services encompass the junior user services.

[00:02:55] Speaker 04:
And so that's where I've seen it, where we've never seen it and where we were not.

[00:02:59] Speaker 02:
First of all, it's not in the Latinx, is that right?

[00:03:03] Speaker 04:
I don't believe it is.

[00:03:04] Speaker 02:
OK.

[00:03:05] Speaker 04:
OK.

[00:03:06] Speaker 02:
And what do you think here is the relationship between the priority question and the role of the 120 registration, the unchallenged earlier registration?

[00:03:19] Speaker 02:
I'm having trouble understanding how those two things are related to each other in this case.

[00:03:24] Speaker 04:
We believe that when the board held at summary judgment that Morehouse was not a part of this case and held it stricken from the record and specifically said that they do not find that the services are substantially identical, that

[00:03:45] Speaker 04:
The relevance of the 120 registration at that point in time was no more in this case because it wasn't, this is not a situation.

[00:03:52] Speaker 02:
Right, so let me ask the question differently.

[00:03:54] Speaker 02:
I don't mean the procedural relevance.

[00:03:56] Speaker 02:
I mean, suppose there were no 120 registration.

[00:04:02] Speaker 02:
What would the analysis here look like?

[00:04:06] Speaker 04:
I think the analysis would have to, you would have to compare when Britax began providing its pawn services versus the 540 and the 073 registrations which showed dates of use junior to Britax.

[00:04:23] Speaker 04:
I think that has to be the analysis at that point.

[00:04:26] Speaker 04:
And I believe the crux of our argument is that when the board used this one.

[00:04:32] Speaker 02:
I'm sorry.

[00:04:34] Speaker 02:
Why would that be the analysis?

[00:04:35] Speaker 02:
I want to just try to get back to first principles here.

[00:04:38] Speaker 02:
Sure.

[00:04:39] Speaker 02:
So dollar is engaged in a loan making business starting in 84.

[00:04:48] Speaker 02:
You are engaged in a dual function, pond broking business.

[00:04:54] Speaker 02:
You lend money, you sell the collateral.

[00:04:57] Speaker 02:
Those are the two main elements.

[00:05:00] Speaker 02:
Starting in 1993.

[00:05:02] Speaker 02:
Correct.

[00:05:03] Speaker 02:
So putting aside the 120, how would the analysis proceed legally?

[00:05:11] Speaker 04:
Legally, the analysis would need to concentrate on the differences between

[00:05:19] Speaker 04:
GFG's prior services for loan financing, check cashing, and those types of things versus the nature of applicants or of Britax's services beginning in 1993 and whether or not that priority, whether or not they could be approved priority by relying on those non-

[00:05:49] Speaker 04:
upon service-related services.

[00:05:53] Speaker 02:
And would this just be a likelihood of confusion analysis that is, in that situation, again, forgetting about the 120.

[00:06:01] Speaker 02:
Dollar has priority for certain kinds of activities, making loans.

[00:06:07] Speaker 02:
And there's no, because there's no registration, by assumption, of my question.

[00:06:13] Speaker 02:
We're just trying to characterize the business they're in, not reading anything from a legal document the way you would with a registration.

[00:06:22] Speaker 02:
And then the question would or would not be your business, would somebody likely confuse use of the same name on your business compared to that one?

[00:06:34] Speaker 02:
Would that be the question or not quite?

[00:06:36] Speaker 04:
I think the court would have to first address whether loan finance services or DFG's prior services are merely descriptive of the money mark mark.

[00:06:51] Speaker 02:
I think they would have to... Let's assume not.

[00:06:57] Speaker 04:
Assuming that they are not distinctive of... No, I'm sorry.

[00:07:02] Speaker 04:
Assuming that they are... That they are distinctive of loan financing services, at that point you would need to go to a... I think it is a likelihood of a confusion analysis as to whether or not the PON services are

[00:07:22] Speaker 04:
likely to be confused with the loan financing services and we believe that there is no likelihood of confusion.

[00:07:26] Speaker 01:
And is all of this coming back to the point you made earlier which is loan financing or whatever may cover a portion of pawn services but doesn't cover it entirely.

[00:07:37] Speaker 01:
So you've got a portion left that is outside of whatever use of this prior market.

[00:07:45] Speaker 04:
That's correct.

[00:07:46] Speaker 04:
That is our position.

[00:07:48] Speaker 04:
And we believe that that portion that is outside of the loan financing is a significant area of this business.

[00:07:56] Speaker 04:
If you take the board's holding to another example, it could be read to say that if a car dealership that did in-house financing

[00:08:08] Speaker 04:
under the money mark, that would be considered a loan financing institution.

[00:08:13] Speaker 01:
Clearly, there are things outside of loan financing that that dealership does, and that is the... But what do we do with the portion of the stuff that even you would concede, the pawnbroker does, that does come within the loan financing?

[00:08:27] Speaker 04:
I think you have to look at, especially under the board's ruling of this encompassing language,

[00:08:33] Speaker 04:
I think you have to look at all of the services.

[00:08:36] Speaker 04:
So you have to look at all of the services.

[00:08:39] Speaker 04:
I don't think you can isolate just the loan financing from the rest of the business.

[00:08:44] Speaker 04:
Because if you concentrate just on the loan financing, then essentially what you have is you have a situation where a pawn shop is simply making collateralized loans.

[00:08:56] Speaker 04:
And if the loans are forfeited, they don't have anything to do with the goods.

[00:08:59] Speaker 04:
They're just collecting the goods.

[00:09:00] Speaker 04:
They're not selling them.

[00:09:02] Speaker 04:
And this business is not profitable without the retail side.

[00:09:05] Speaker 04:
So that's why I think you need to consider all aspects of the goods and services here in this case.

[00:09:14] Speaker 04:
And I think when you consider all those, I think, you know, we have said all along that the, it was the registration for the pawn services that really caused the damage to Red Decks.

[00:09:26] Speaker 01:
Can I take you to the more how

[00:09:36] Speaker 01:
said no to this defense was that you had, I guess, alleged, and I don't know where it is now, I guess it's 54 of the appendix.

[00:09:44] Speaker 01:
I think it referred to your reference to pawn store services and something else.

[00:09:51] Speaker 01:
Right?

[00:09:52] Speaker 01:
Is that one of the things the board said?

[00:09:55] Speaker 01:
Well, you weren't limited to that.

[00:09:56] Speaker 01:
You alleged arguably other things, although you didn't identify them.

[00:10:01] Speaker 04:
In regard to our plan?

[00:10:03] Speaker 04:
In terms of what the harm would be.

[00:10:05] Speaker 01:
Oh, sure.

[00:10:05] Speaker 01:
There might be harm other than pawn services because you had alleged pawn services and other stuff, I think.

[00:10:12] Speaker 01:
Right?

[00:10:13] Speaker 01:
Right.

[00:10:13] Speaker 01:
And I think that I guess what are those

[00:10:17] Speaker 01:
I mean, what are we to do with those other things if the record wasn't developed with respect to what they were?

[00:10:28] Speaker 04:
I think over the course of this litigation, Britax has been fairly consistent that really the harm is with regard to the pawn shop services and the pawn brokerage services.

[00:10:38] Speaker 04:
The initial petition, sure, it sought complete cancellation.

[00:10:43] Speaker 04:
I think our backup position has been that we believe that the pawn brokerage and pawn shop services should be eliminated from the registration.

[00:10:53] Speaker 02:
Can I ask this, I guess, a follow-up to that question?

[00:10:56] Speaker 02:
So the new registrations have the loan financing, pond brokerage stuff, and then the gold and silver exchange and debit cards and gift cards.

[00:11:15] Speaker 02:
And if I remember right, tell me if I'm wrong,

[00:11:18] Speaker 02:
The rationale that the board gave for dismissing the Morehouse defense was the presence in this registration of those, I'm just going to call them gold coins and debit cards.

[00:11:31] Speaker 04:
That's correct.

[00:11:33] Speaker 02:
And said, well, as long as there's anything else that's not directly covered by the prior registration, we don't do more hats, right?

[00:11:43] Speaker 04:
That's correct.

[00:11:44] Speaker 04:
And it went down to the services needing to be substantially identical.

[00:11:48] Speaker 02:
Right.

[00:11:49] Speaker 02:
So I guess my question is, have you alleged that Britics

[00:11:56] Speaker 02:
is currently engaging in or has a non-speculative interest in engaging in the gold coins and debit card pieces.

[00:12:10] Speaker 02:
That is the pieces of the new registration that the board relied on to say we're going to get rid of Morehouse.

[00:12:21] Speaker 04:
With regard to the

[00:12:22] Speaker 04:
debit card services, I think that's a very clear no.

[00:12:25] Speaker 04:
There's no evidence in the record of any intent to get into those areas.

[00:12:29] Speaker 04:
When you get into jewelry and gold buying, to me that, if it's a pawn, that certainly is within the realm of what we do.

[00:12:37] Speaker 04:
But also, it is typical in the pawn shop industry for people to sell their jewelry outright.

[00:12:43] Speaker 04:
And so we would say at that point in time, we are,

[00:12:47] Speaker 04:
Those are areas that we would be engaged in.

[00:12:52] Speaker 02:
As a formal matter, did you make that allegation?

[00:12:55] Speaker 02:
Did you have the opportunity to make that allegation?

[00:12:58] Speaker 02:
It might well make a difference to me whether it was incorrect to dismiss the Morehouse defense, the answer to this question.

[00:13:10] Speaker 02:
What would you say now isn't quite the same as having said it in the proceeding?

[00:13:18] Speaker 04:
Well, I think that the pawn shop services in this industry, it almost goes without saying that those parts would be a part of, would be pawn activities.

[00:13:30] Speaker 04:
And so I think our view of it was that it was put by virtue of just the nature of our services.

[00:13:37] Speaker 04:
And I'm into my rebuttal time.

[00:13:40] Speaker 04:
Would you guys like to hear more or can I reserve some time?

[00:13:45] Speaker 05:
Okay.

[00:13:46] Speaker 05:
Thank you.

[00:13:47] Speaker 05:
Let's hear it from the other side.

[00:13:59] Speaker 05:
Mr. Ibrahim.

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

[00:14:01] Speaker 03:
Good morning, Your Honors.

[00:14:03] Speaker 03:
I'm Bassam Ibrahim here on behalf of Dollar Financial Group with my colleague, Laura Pitts.

[00:14:07] Speaker 03:
May it please the Court?

[00:14:10] Speaker 03:
There are really two primary issues before this Court today.

[00:14:14] Speaker 03:
The first is, did the Board in any way err in holding that Dollar Financial Group was the senior user of the Marxist issue in this proceeding?

[00:14:25] Speaker 03:
And the answer to that is unequivocally no.

[00:14:28] Speaker 03:
If we look at the record and the evidence of record, dollar financial proved we are the senior user in this proceeding.

[00:14:39] Speaker 02:
As I understand it, the facts are completely clear, right?

[00:14:44] Speaker 02:
You first used this mark for loan financing.

[00:14:50] Speaker 02:
They first used it for pawnbroker.

[00:14:53] Speaker 02:
Now the question is, what's the legal relevance of those facts?

[00:14:57] Speaker 02:
And that pawnbroking involves some loan financing plus sale of collateral.

[00:15:02] Speaker 02:
So it's partly loan financing and partly something else.

[00:15:07] Speaker 02:
I don't understand there to be any dispute about the facts as I just recited them.

[00:15:12] Speaker 02:
So the question is, how do those facts get evaluated under the relevant legal standards?

[00:15:19] Speaker 03:
How they get evaluated is this.

[00:15:20] Speaker 03:
The question is, are pawn services part of the broader definition of loan financing services?

[00:15:27] Speaker 03:
We have this 120 registration, which has been around for a long time and our clients been using it.

[00:15:34] Speaker 03:
the Marksons 1984 in connection with loan financing services and subsequently added to its use, pawn brokerage services.

[00:15:42] Speaker 03:
And the evidence of record shows that pawn brokerage services are part of loan financing services.

[00:15:49] Speaker 03:
If you look at the testimony of the owners of Predax, both Mr. Knuckles and

[00:15:58] Speaker 03:
Mr. Upton, both testified that, and I'm going to quote in the testimony discovery deposition, how do you describe pawn brokerage services?

[00:16:11] Speaker 05:
But they're part, but they're a very well-defined, well-known

[00:16:15] Speaker 05:
in the community part.

[00:16:17] Speaker 05:
And this is really where I too have trouble.

[00:16:20] Speaker 05:
We're just talking about the trademark, the notice to the public as to this is the business that you do in this shop.

[00:16:31] Speaker 05:
And if you go into a pawn shop, you know exactly the business that you're getting into and that you're not going to finance broadly all sorts of banking transactions.

[00:16:45] Speaker 05:
So what we really need to focus on is the notice to the public that the trademark, the sign over the door gives you and why the common usage, the common understanding of the difference between a pawn shop and other kinds of financing should be ignored.

[00:17:09] Speaker 03:
Your Honor, they are one and the same.

[00:17:12] Speaker 03:
Imagine going to, if you've never been to a pawn or loan financing store, Your Honor, they provide the financial access to the underbanked community.

[00:17:21] Speaker 03:
So when you go into these stores, they're the only place that folks have the opportunity to conduct these transactions.

[00:17:29] Speaker 01:
And those are the loan part.

[00:17:30] Speaker 01:
And I think what Judge Newman and maybe I am getting at is that they only also

[00:17:35] Speaker 01:
pawn shops perform a distinct and different service other than the loan stuff, right?

[00:17:42] Speaker 03:
Well, if we look at the evidence of record here, the evidence of record doesn't show they have these other distinctive services that they're arguing about.

[00:17:51] Speaker 03:
But the only thing that they've offered in the evidence of record, counsel talks about retail store and other services.

[00:17:57] Speaker 03:
It's not in the record.

[00:17:59] Speaker 03:
What is in the record, what we would consider the court lookout appeal, is the sole and the precise issue for pawn stores

[00:18:07] Speaker 03:
Do ours that encompass within the broad definition of loan financing, which is in the registration?

[00:18:13] Speaker 03:
And Judge Newman, in addition to that, we've submitted mountains of evidence in terms of our common law use in what is perceived in the marketplace.

[00:18:23] Speaker 03:
In terms of when people think of loan financing or pawn services, what do they perceive?

[00:18:30] Speaker 03:
These stores all offer the similar types of services.

[00:18:34] Speaker 03:
And so pawn services are encompassed

[00:18:36] Speaker 03:
any part of loan financing as testified by both of the owners of Britax.

[00:18:42] Speaker 03:
They both said yes, this is loan financing.

[00:18:44] Speaker 02:
Can I just, I think I'm just sort of repeating myself, but this word encompass words like part of seem odd here because the plain fact is that two different types of customers walk into pawn shops.

[00:19:01] Speaker 02:
The ones who want to walk out with cash and the ones who want to walk out with watches.

[00:19:07] Speaker 02:
Both, right?

[00:19:09] Speaker 02:
Those are both part of the business.

[00:19:11] Speaker 02:
Half of it is encompassed in loan financing.

[00:19:14] Speaker 02:
The other half, not.

[00:19:17] Speaker 02:
So it strikes me as just extremely odd to say the whole business is encompassed within loan financing, unless there's evidence that loan financing, as it is generally understood, also includes the sale of the collateral.

[00:19:37] Speaker 02:
which is what the watch sellers, the watch buyers, want out of the shop.

[00:19:43] Speaker 03:
And the evidence of record supports that, Your Honor.

[00:19:45] Speaker 03:
If we look at what we submitted in the evidence of record, it shows that they are part and parcel of the same thing.

[00:19:53] Speaker 03:
And we're talking about the same thing.

[00:19:55] Speaker 03:
It's just linguistics.

[00:19:57] Speaker 03:
This is not just linguistics.

[00:20:00] Speaker 02:
Some people go into pawn shops with a watch and say, take this, give me $500.

[00:20:07] Speaker 02:
Other people go in with $500 and say, take this, I want the watch.

[00:20:14] Speaker 02:
One's a retail business of goods.

[00:20:17] Speaker 02:
in which the business collects the cash and the other is a retail business with loans in which the business takes the goods.

[00:20:27] Speaker 03:
I understand your honor, but if we look for the purposes of the appeal, what is in the evidence of record?

[00:20:33] Speaker 03:
In the evidence of record shows

[00:20:35] Speaker 03:
that these services, the loan financing services, covers pawn shop services.

[00:20:43] Speaker 02:
What evidence is there that non-pawn shop loan financing businesses sell collateral to retail customers?

[00:20:55] Speaker 03:
Well, we don't believe there's any evidence of record that shows that

[00:20:59] Speaker 03:
Non pawn shop, you know retail puddle is in the record.

[00:21:03] Speaker 03:
That's what they offer Council has argued that your honor and it sounds nice but the truth Did you dispute below that a pawn shop sells collateral?

[00:21:12] Speaker 03:
I didn't dispute that your honor but in terms of the evidence of record for these two the Loan financing and the pawn brokerage services your honor the evidence shows that they are You know one in the same encompassed your honor

[00:21:27] Speaker 01:
I don't understand.

[00:21:28] Speaker 01:
Are you saying that there was just no evidence put in the record that there was the second service that Judge Toronto has just alluded to?

[00:21:37] Speaker 01:
Your Honor.

[00:21:37] Speaker 01:
Is that your answer whether we all know it's not true that they just never put on the evidence?

[00:21:42] Speaker 03:
No, Your Honor.

[00:21:43] Speaker 03:
Council has argued that their retail store services include these whole host of other elements.

[00:21:48] Speaker 03:
That is not in the record.

[00:21:49] Speaker 03:
You know, what Judge Toronto's talking about is even the definition of pawn shop services.

[00:21:56] Speaker 03:
Based on my recollection of the definition of pawn shop services, it encompasses loan financing services.

[00:22:02] Speaker 03:
Not these other retail services that Council has argued in the record, but it's not part of the evidence of record.

[00:22:08] Speaker 02:
What you just said is that pawn shop services encompass loan financing.

[00:22:13] Speaker 02:
That seems to me absolutely clear and true.

[00:22:16] Speaker 02:
That's not the proposition that you're defending here.

[00:22:19] Speaker 02:
You're defending the proposition that loan financing encompasses pawn services.

[00:22:24] Speaker 02:
Which we believe it does, Your Honor.

[00:22:25] Speaker 02:
That's correct.

[00:22:26] Speaker 02:
That's not intuitive.

[00:22:28] Speaker 02:
You can tell.

[00:22:29] Speaker 02:
That's not intuitively obvious to me.

[00:22:32] Speaker 02:
Yes, Your Honor.

[00:22:33] Speaker 01:
I wonder, is your answer that whether it's intuitively obvious or not, there's just nothing in the record that deals with these other services that we've been talking about?

[00:22:42] Speaker 01:
I just want to understand what your answer is.

[00:22:44] Speaker 03:
Yes, Your Honor.

[00:22:45] Speaker 03:
We believe that's the case, that counsel has made these arguments in their brief.

[00:22:48] Speaker 03:
But there's nothing in the record that shows these other services exist in that context.

[00:22:54] Speaker 03:
So we think it's not proper for the context of the appeal, with all due respect to the court and counsel.

[00:23:04] Speaker 03:
If we look at the evidence of the record, it shows that both parties agree that on brokerage services are encompassed within loan financing, regardless of how it may be defined in the evidence of record.

[00:23:18] Speaker 03:
It shows that.

[00:23:19] Speaker 03:
The two owners of both companies admitted that.

[00:23:22] Speaker 03:
And so therefore we think in the context of likely to confusion and priority because Dollar Financial Group is the prior user having rights back to 1984 encompassed within the 120 registration.

[00:23:35] Speaker 01:
Okay, can I move on to a kind of a different issue?

[00:23:38] Speaker 01:
Please do.

[00:23:39] Speaker 01:
what seems to be at least a question with respect to the board's analysis.

[00:23:46] Speaker 01:
And if you look at A37, they do their analysis fine.

[00:23:50] Speaker 01:
They go through all the stuff going on in 1984.

[00:23:53] Speaker 01:
And then they refer to the 2007 stuff.

[00:23:56] Speaker 01:
And then towards the end of the page, there's a sentence beginning, as such, we construe loan financing, and that registration is encompassing all services.

[00:24:06] Speaker 01:
sounds like the board's decision and its conclusion rested on the 2007 registration and what it said about maybe 1984 but not on the 1984 stuff.

[00:24:20] Speaker 01:
Now I read your brief to sort of recognize that would be a problem and so to try to say well no the board rested not on the 2007 registration but it was talking about all the stuff it had said before about 1984.

[00:24:35] Speaker 03:
That's correct, John.

[00:24:37] Speaker 03:
We believe that the board looked at the totality of the evidence.

[00:24:40] Speaker 03:
I guess they spent nine pages looking at the evidence of record that we submitted based on the president of our company and the numerous employees, et cetera.

[00:24:52] Speaker 03:
But that applies to only coverage

[00:24:56] Speaker 03:
That applies to only Class 36 coverage dealing with the financial aspect, Your Honor.

[00:25:02] Speaker 03:
Class 35 deals with kind of the retail aspect, which isn't even in the registration or part of the proceeding, Your Honor.

[00:25:09] Speaker 03:
But to your specific point, it covers all the evidence, Your Honor.

[00:25:12] Speaker 03:
I think that is one component, the incontestable registration.

[00:25:17] Speaker 03:
We also have all these common law rights that we've shown as well.

[00:25:19] Speaker 03:
would support that, and independent third party records, dictionaries, yellow pages, white page listings, et cetera, that support our prior use of 1984.

[00:25:30] Speaker 01:
Can I move you to the Morehouse defense?

[00:25:34] Speaker 01:
Please, Your Honor.

[00:25:36] Speaker 01:
The board uses the standard substantially the same, or whatever.

[00:25:40] Speaker 01:
Let's assume that loan services encompass the pawn services.

[00:25:45] Speaker 01:
I think the board also said, and I asked your friend about this, that the board also said, well, there's this other stuff they're talking about, or they're alleging in the complaint, and that's outside.

[00:25:55] Speaker 01:
So that's what dilutes or dislodges this harm thing.

[00:26:00] Speaker 01:
Right?

[00:26:00] Speaker 01:
You know what I'm talking about?

[00:26:01] Speaker 03:
I do know what you're talking about.

[00:26:02] Speaker 01:
OK.

[00:26:02] Speaker 01:
What do we do with that?

[00:26:04] Speaker 03:
Well, Your Honor, you only get to the Morehouse defense, and it's a conditional cross-appealing.

[00:26:08] Speaker 03:
I understand.

[00:26:09] Speaker 03:
Yeah.

[00:26:09] Speaker 03:
Your Honor, as we argued in the brief, if you get to that issue, then we take the board air it on the Morehouse defense for two reasons.

[00:26:15] Speaker 03:
Number one, it was deciding sui sponte on the

[00:26:19] Speaker 03:
Summary judge of motion and two we think it runs contrary to a line of cases because the harm still exists in the 120 registration there's a line of cases we cited that says if Red X can be no more harmed by the current registrations then they can by the 120 registration Morehouse should apply.

[00:26:36] Speaker 03:
Otherwise we have to deal with litigation like we've done here.

[00:26:39] Speaker 03:
We think the court the board should have applied Morehouse Your Honor.

[00:26:42] Speaker 01:
But on that theory I guess I'm

[00:26:44] Speaker 01:
You argue, you acknowledge maybe you need a remand, and then you argue for a reversal as well.

[00:26:50] Speaker 01:
And I'm not seeing how you get by with remand on this question.

[00:26:54] Speaker 03:
Well, Your Honor, if the court decides, which we urge you to, not to disturb the board's decision, we don't want a remand.

[00:27:01] Speaker 03:
It's a conditional request for remand.

[00:27:03] Speaker 01:
I understand.

[00:27:03] Speaker 03:
Yes, Your Honor.

[00:27:05] Speaker 01:
But if we're at the conditional,

[00:27:07] Speaker 01:
request stage, how do you get us from, and even if we were to agree with you on the Morehouse defense, how do you get to a reversal as opposed to the necessity of a remake?

[00:27:20] Speaker 03:
I think, Your Honor, you remanded the court to ask for further fact-finding and also looking at the case law, I would say completely ignored and didn't give us an opportunity to trial to address this issue.

[00:27:30] Speaker 03:
Doing it so we respond to it.

[00:27:32] Speaker 01:
OK, so what you're telling me now is if we were to reach this conditional cross-appeal, you're not advocating a reversal based on the cross-appeal.

[00:27:40] Speaker 01:
You're just advocating a remand.

[00:27:42] Speaker 03:
Well, Your Honor, ideally we'd like a reversal and ruling that Morehouse should prevent the case from going forward.

[00:27:47] Speaker 01:
Well, that's what I asked you about.

[00:27:48] Speaker 01:
I'm sorry, Your Honor.

[00:27:49] Speaker 01:
I apologize.

[00:27:50] Speaker 01:
I think there's some rationale that would support a reversal.

[00:27:52] Speaker 03:
A complete reversal and Morehouse would preclude this suit from going forward, Your Honor.

[00:27:57] Speaker 01:
I apologize.

[00:27:57] Speaker 01:
That's the conclusion.

[00:27:58] Speaker 01:
I want to know how you get to that conclusion.

[00:28:00] Speaker 01:
How do we avoid a remand, even if we would agree with you what Morehouse says, and decide that on the record here?

[00:28:09] Speaker 01:
If you're advocating for reversal, tell me how we get there.

[00:28:13] Speaker 03:
I think if you look at the case law, Your Honor, and the facts here, at the end of the day, the 120 registration creates the harm.

[00:28:20] Speaker 03:
And the later registrations, which also encompass the loan financing and pawn, can create no greater harm.

[00:28:26] Speaker 03:
And therefore, Morehouse should apply, Your Honor, as a matter of law.

[00:28:28] Speaker 02:
Doesn't that depend on whether the other side has any interest in the activities

[00:28:36] Speaker 02:
the gold and silver coin activities, the debit card activities, and I guess the gift card activities, which I think are the three items in the current registrations, the registrations currently at issue, that the board identified as the grounds for rejecting the Morehouse defense.

[00:28:57] Speaker 02:
I would understand the point that the Morehouse defense should apply

[00:29:04] Speaker 02:
where any additional activities like these, the gold coins, the debit cards, the gift cards, are of no consequence to the challenger.

[00:29:14] Speaker 02:
So that the only things of consequence to the challenger in the new registration are already covered by a prior one.

[00:29:22] Speaker 02:
That seems to me to make ordinary standing sense in terms of standing doctrine.

[00:29:30] Speaker 02:
But it depends on the facts about whether

[00:29:33] Speaker 02:
The other side has alleged that they have some cognizable interest in those three activities.

[00:29:41] Speaker 02:
What does the record say about that?

[00:29:43] Speaker 03:
We believe the record doesn't show any support for these other alleged interests, Your Honor.

[00:29:48] Speaker 03:
They've been in business for a number of years, and there's nothing in the record that shows support that they are going to get into these other areas, Your Honor.

[00:29:55] Speaker 02:
Did Bridex have procedurally the opportunity to present such allegations?

[00:30:06] Speaker 03:
We believe they did, Your Honor, throughout the proceeding.

[00:30:08] Speaker 03:
This proceeding has been going on for five years.

[00:30:11] Speaker 03:
And we don't believe there's anything in the record that shows that they are going to get into these other areas other than attorney argument, Your Honor.

[00:30:19] Speaker 03:
And I apologize.

[00:30:19] Speaker 03:
I would like to just reserve a minute for rebuttal.

[00:30:22] Speaker 02:
I do want to ask you about one other thing.

[00:30:24] Speaker 02:
You said there was no evidence in the record that pawnbrokers sell goods.

[00:30:28] Speaker 02:
So I'm looking at page 31.

[00:30:29] Speaker 03:
I'm sorry, Your Honor.

[00:30:32] Speaker 03:
If I said that, that was a misnaming, Your Honor.

[00:30:34] Speaker 02:
Oh, I thought we were on this for five minutes.

[00:30:37] Speaker 03:
But in the sense that, you know, please finish on it, please.

[00:30:41] Speaker 02:
Well, I'm looking in this block quotes of evidence in the board's opinion.

[00:30:47] Speaker 02:
Definition, pawnbroker, blah, blah, blah, takes the borrower's personal goods as collateral to be sold to the public in a pawn shop.

[00:30:56] Speaker 02:
Later, the news article

[00:30:59] Speaker 02:
The lending agreement allows the pawn lender to take possession of and sell the collateral if the borrower does not meet the terms of the agreement.

[00:31:08] Speaker 02:
That seems to me to be evidence that what goes on in pawn shops is two things.

[00:31:13] Speaker 02:
One, the giving of loans.

[00:31:15] Speaker 02:
Two, the selling of collateral.

[00:31:18] Speaker 03:
But we believe both of those, Your Honor, based on the evidence of record, is covered under the broader umbrella of loan financing services.

[00:31:25] Speaker 03:
It's a type of loan financing.

[00:31:27] Speaker 02:
So did any of the evidence that you had about loan financing say, we are a loan that there is

[00:31:37] Speaker 02:
In the non-pawnbroker world of loan financing, the loan financers sell the collateral to the public.

[00:31:46] Speaker 03:
Can I get back to you on rebuttal, Your Honor, and get back to you, please, if I may?

[00:31:50] Speaker 03:
Sure.

[00:31:51] Speaker 03:
OK.

[00:31:51] Speaker 03:
I may reserve the rest of my time, if that's OK with the court, unless I don't want to cut anybody off.

[00:31:55] Speaker 05:
OK.

[00:31:56] Speaker 05:
Thank you.

[00:31:57] Speaker 05:
We'll save you for rebuttal and the cross-appeal.

[00:32:00] Speaker 05:
Thank you.

[00:32:01] Speaker 05:
And we'll hand from Mr. McRae whatever you need to tell us.

[00:32:07] Speaker 04:
I'd like to just raise a couple points.

[00:32:11] Speaker 04:
With regard to the owner testimony that you heard about, the owners of Brits Ex also testified as to the collateral and what happens to that collateral when the loan is forfeited and discussed the retail side.

[00:32:28] Speaker 04:
So just for purposes of completeness, it was testified.

[00:32:33] Speaker 01:
And the other... And you made the... Your position is that you made the argument that, no, no, no, no, no, pond services are not limited to this loan application stuff because we have a retail component.

[00:32:45] Speaker 01:
And then you pointed to the record evidence to support that?

[00:32:48] Speaker 04:
We argued it pretty extensively at the appendix at 6122 to 6125.

[00:32:54] Speaker 04:
And the exhibit cited there, too.

[00:33:00] Speaker 01:
You want to give that to me again, because we've done it.

[00:33:02] Speaker 04:
Oh, sure.

[00:33:02] Speaker 04:
Absolutely.

[00:33:03] Speaker 04:
The appendix at 6122 to 25.

[00:33:07] Speaker 04:
And that really is geared not only to the retail aspects, but the things that support the retail aspects, the appraising of the variety of items, the properly pricing for resale, things of that nature that you see in the brief.

[00:33:25] Speaker 04:
So there is evidence in the record, and I just wanted to clear that up.

[00:33:30] Speaker 04:
Subject to that, I'm happy to hear whatever else the court would like to hear from you.

[00:33:39] Speaker 05:
OK.

[00:33:39] Speaker 05:
Anymore questions?

[00:33:39] Speaker 05:
Good.

[00:33:40] Speaker 05:
Thank you.

[00:33:41] Speaker 05:
Thank you.

[00:33:42] Speaker 05:
All right.

[00:33:42] Speaker 05:
Mr. Abraham, is there anything new that you need to tell us?

[00:33:48] Speaker 05:
You could have one minute, if so.

[00:33:51] Speaker 03:
Yes, sir.

[00:33:56] Speaker 03:
Thank you, Your Honor, for your time in letting me get back to this issue.

[00:33:59] Speaker 03:
If you look at Red X's brief, they conceded in their brief that the only thing that was issue in this proceeding is pawn, in the pawn surfaces.

[00:34:15] Speaker 03:
They've waived the right in their briefing and argument.

[00:34:18] Speaker 02:
What are you referring to when you say that?

[00:34:20] Speaker 03:
If you look at page 10 of petitioner's main brief, Your Honor.

[00:34:23] Speaker 03:
That's the blue brief?

[00:34:26] Speaker 03:
I'm sorry.

[00:34:28] Speaker 03:
It's in their trial brief, John.

[00:34:29] Speaker 03:
In their trial brief.

[00:34:30] Speaker 03:
I apologize.

[00:34:31] Speaker 03:
You're on a page 10 of petitioners' main trial brief.

[00:34:33] Speaker 03:
I need a JA site.

[00:34:35] Speaker 03:
I will get that to you in a moment, Your Honor, if I may.

[00:34:39] Speaker 03:
In particular, petitioner requests cancellation of the two registrations in full because A, there is likely confusion between petitioners' prior common law rights in the money mark for pawn services and the registrations in dispute with respect to pawn brokerage and pawn shops.

[00:34:59] Speaker 03:
in dispute, fraudulent.

[00:35:00] Speaker 03:
So the only thing that they've put into dispute in this proceeding is the pawn services.

[00:35:05] Speaker 03:
Why they argue these are the services, Your Honors.

[00:35:08] Speaker 03:
They aren't relevant, because they've waived the right to argue those.

[00:35:11] Speaker 03:
And the only thing they've contested is the pawn.

[00:35:14] Speaker 03:
This was on what page of the trial ring?

[00:35:17] Speaker 03:
Page 10, Your Honor.

[00:35:26] Speaker 02:
So that's page 6122?

[00:35:27] Speaker 02:
6,010.

[00:35:27] Speaker 03:
That's correct, Your Honor.

[00:35:30] Speaker 03:
It would be 6,010 instead.

[00:35:33] Speaker 02:
And the trial brief was submitted after Morehouse was dismissed?

[00:35:37] Speaker 02:
Is that right?

[00:35:38] Speaker 02:
Yes, Your Honor.

[00:35:39] Speaker 02:
Well, then those things wouldn't be of any issue.

[00:35:42] Speaker 02:
By the time you get to the trial brief, it's not really, well, is that true?

[00:35:50] Speaker 02:
Would it have been relevant for them to say, we do gold coins, et cetera?

[00:35:56] Speaker 03:
We don't believe we're being honored again.

[00:35:58] Speaker 03:
The only thing they've put at issue in this proceeding is the pawn shop services.

[00:36:02] Speaker 03:
The other issues the council has spoken about aren't part of the record in terms of what their position has been.

[00:36:09] Speaker 03:
And as a result, we believe they've waived those other arguments.

[00:36:12] Speaker 03:
If we allow them to bring in these other arguments that are part of the record and these other issues, I think, you know, we risk putting the appellate record on its head and really what the appeal is about.

[00:36:24] Speaker 03:
And the appeal is about the record that is before us in the context of the proceeding.

[00:36:31] Speaker 05:
Okay.

[00:36:31] Speaker 05:
Thank you.

[00:36:32] Speaker 05:
Thanks to both counsels.

[00:36:34] Speaker 05:
The case is taken under submission.

[00:36:36] Speaker 03:
Thank you, Your Honor.