[00:00:00] Speaker 01:
commercial impression.

[00:00:02] Speaker 01:
The basis for this finding is that a Chinook hop varietal exists.

[00:00:06] Speaker 01:
But the board's commercial impression analysis is fundamentally flawed.

[00:00:10] Speaker 01:
Would an ordinary consumer that sees the term Chinook in the beer aisle of their local grocery store perceive it as a reference to the Chinook hop varietal?

[00:00:17] Speaker 01:
The answer is no.

[00:00:19] Speaker 00:
Where's the evidence to support that conclusion?

[00:00:22] Speaker 01:
Your Honor, the record is devoid of evidence that... But the record is

[00:00:26] Speaker 00:
The problem as I see it for you is, and I'm not unsympathetic to your argument, but that the relevant audience was broadly defined to also include industry professionals.

[00:00:37] Speaker 00:
And there was evidence that industry professionals would see Chinook on beer and immediately think of hops.

[00:00:44] Speaker 00:
That's right?

[00:00:46] Speaker 01:
There was some evidence to that effect, Your Honor, yes.

[00:00:48] Speaker 01:
But Mackie does dispute the veracity of that evidence.

[00:00:52] Speaker 00:
Well, that's a different issue.

[00:00:53] Speaker 00:
I mean, let's just assume that evidence is good enough.

[00:00:57] Speaker 00:
That can be substantial evidence to support this.

[00:00:59] Speaker 00:
There is no corresponding evidence, is there, that the regular public outside of industry professionals wouldn't connect Chinook to Hops?

[00:01:10] Speaker 01:
Your Honor, I believe that's correct.

[00:01:12] Speaker 01:
Precise rebuttal evidence here, but the board's decision completely omitted any discussion of the ordinary traditional consumer the beer consumer Know your honor, but the whose burden would it be to bring evidence to?

[00:01:32] Speaker 04:
about the ordinary consumer before the board be yours, correct?

[00:01:36] Speaker 01:
Your Honor, Mackey submits that it would be the proponent of the genericness finding.

[00:01:41] Speaker 01:
That it would be, in fact, Lawson's burden to convince the board that an ordinary purchaser, a purchaser that's most likely to be confused, would perceive Chinook to be generic for hops.

[00:01:54] Speaker 01:
And Appellee Lawson's did not submit any evidence to that effect.

[00:01:58] Speaker 03:
The only evidence is to a highly- You didn't submit evidence to either of them.

[00:02:03] Speaker 01:
No, Your Honor.

[00:02:04] Speaker 01:
But the burden was on Mackey, or apologies, on Lawson's to submit evidence sufficient to support a genericness finding.

[00:02:14] Speaker 04:
And the- But the genericness issue didn't come up as a part of Lawson's response to your

[00:02:23] Speaker 01:
clients burden didn't generic has come up in connection with your client wanting to get a common-law mark for beer your honor it was first discussed when discussing my clients claim that he had an exclusive right to use the term Chinook in connection with beer which was unregistered the board then

[00:02:43] Speaker 01:
Incorporated by specific reference that genericness finding into its likelihood of confusion analysis which concern my clients registered Chinook trademark for wine And Mackey submits that this is not necessarily explained to me I don't understand why you're saying it's not your burden to show on on the similarity of the marks that the general public would confuse these two and

[00:03:11] Speaker 01:
Your honor, it is Maggie's burden to submit evidence in support of the DuPont factor findings.

[00:03:18] Speaker 00:
But you just said you didn't submit any evidence on what the general public would think.

[00:03:24] Speaker 00:
The only evidence in the record is from the other side of the industry professionals.

[00:03:29] Speaker 01:
And Your Honor, that evidence is insufficient to support the board's finding.

[00:03:34] Speaker 01:
Why?

[00:03:35] Speaker 01:
There's no other evidence.

[00:03:37] Speaker 01:
Your Honor, there is the record.

[00:03:39] Speaker 00:
I mean, you might have a good argument if you come in with consumer surveys that said all these people that look at this mark, Chanooker, think of the Chanook trade winds or whatever that's named after and not the hops.

[00:03:51] Speaker 00:
But there's nothing to suggest that.

[00:03:52] Speaker 00:
You want us to infer that.

[00:03:54] Speaker 00:
To me, it sounds like a reasonable imprint, but there's nothing in the record to support it.

[00:03:59] Speaker 01:
Your Honor, there's nothing in the record to support that an ordinary consumer is even aware that the Shinnecock varietal exists.

[00:04:06] Speaker 00:
Again, I don't understand why you're arguing that it's not your burden to show, at least make a minimum while showing on that.

[00:04:14] Speaker 01:
Your Honor, the...

[00:04:15] Speaker 00:
The board's decision is just simply not supported by substantial evidence, of any evidence, and the board's decision in fact... It's supported by the only evidence in the record on this point, which is some people, broadly included in the definition of general public, although why that was allowed is a different question, but the industry professionals would see it as us.

[00:04:35] Speaker 00:
That's all we have.

[00:04:36] Speaker 01:
And that's precisely Appellant's point, Your Honor.

[00:04:39] Speaker 01:
That's all we have is evidence as to industry professionals, sophisticated parties.

[00:04:45] Speaker 01:
The likelihood of confusion analysis is not concerned with whether sophisticated parties are going to be confused.

[00:04:50] Speaker 00:
Let's say you didn't even have that.

[00:04:52] Speaker 00:
And you didn't come forth with any evidence whatsoever that there would be confusion because they would not understand that they're tops.

[00:04:59] Speaker 00:
Don't you still lose?

[00:05:01] Speaker 01:
No, Your Honor, the board's finding was specifically premised on the fact that there is a difference.

[00:05:06] Speaker 00:
I know, but hypothetically, let's not talk about the board's finding.

[00:05:09] Speaker 00:
Let's hypothetically say you submit no evidence whatsoever about how somebody would understand this Chinooker mark.

[00:05:17] Speaker 00:
There's no evidence to suggest that it might go with yours or it might go with the Huff's.

[00:05:23] Speaker 00:
Don't you lose?

[00:05:24] Speaker 00:
Because it's your burden to present some evidence on this point.

[00:05:26] Speaker 01:
Well, Your Honor, first, the board found that the marks are similar in sound and appearance.

[00:05:30] Speaker 00:
I know, but on this point, don't you lose on this point if you don't submit evidence.

[00:05:36] Speaker 01:
Your Honor, appellant contends that if there's not substantial evidence, if there's not sufficient evidence to support the genericness finding, whether the term is descriptive or even highly suggestive, the likelihood of confusion factor should fall in Mackey's favor.

[00:05:53] Speaker 01:
And there simply isn't enough evidence in the record to support such a strong finding here.

[00:05:57] Speaker 01:
The only evidence is to sophisticated parties.

[00:06:00] Speaker 04:
And this court... At the bottom, your argument is that in balancing the numerous factors that go into the conclusion of the likelihood of confusion, it's a legal error here because the evidence is slight as to the identification of the mark with Hopps.

[00:06:18] Speaker 01:
Yes, Your Honor.

[00:06:19] Speaker 04:
We do contend that there is both... So it's an unusual case because you have a lot of things going in your favor, but the problem with these cases is that absent some surveys and that sort of thing,

[00:06:29] Speaker 04:
The board doesn't have any way of knowing which is what.

[00:06:32] Speaker 04:
I mean, the board kind of looks like the umpire that's calling balls and strikes.

[00:06:38] Speaker 01:
Yes, Your Honor, we do contend that there was a legal error here.

[00:06:43] Speaker 01:
And the legal error can be seen at page 21 of the board's opinion, which is at the record at page 32.

[00:06:48] Speaker 01:
The board concluded that someone familiar with beer, particularly craft beer, perceived Chinook as a beer made from Chinook hops.

[00:06:58] Speaker 01:
That does not satisfy the genericness framework.

[00:07:03] Speaker 01:
That's simply insufficient, because it omits any discussion, any analysis, any reference to an ordinary beer consumer.

[00:07:10] Speaker 01:
The constituency of the relevant public, the largest, that is most likely to be confused.

[00:07:17] Speaker 01:
And that's what's at issue here.

[00:07:22] Speaker 01:
In this court's decision in Magic Wand versus RDB Inc.

[00:07:25] Speaker 04:
But coming back to what Judge Hughes was making with you, the burden on bringing forward the evidence what Joe Sixpack thinks is on your client, right?

[00:07:38] Speaker 01:
Yes, Your Honor, that's true.

[00:07:42] Speaker 01:
To that point, the burden to have that DuPont factor actually reach the level of genericness and fall so strongly in favor of loss ends that it is dispositive of an entire likelihood of confusion analysis.

[00:07:56] Speaker 01:
That is on law sense.

[00:07:58] Speaker 01:
And the record here is simply not developed enough to support the board's legal conclusion.

[00:08:04] Speaker 01:
And in fact, we do submit that the board's factual finding itself, which I just described with page 21 of the opinion, doesn't fit into that genericness framework.

[00:08:12] Speaker 01:
The factual conclusion itself is insufficient.

[00:08:16] Speaker 01:
So there's a legal disconnect.

[00:08:18] Speaker 01:
There's a gap that hasn't been bridged by any type of evidence here.

[00:08:28] Speaker 01:
This court's decision in Magic Want Ink versus RDB Ink is quite instructive.

[00:08:33] Speaker 01:
There, the petitioners submitted significant evidence to show that touchless was used generically in connection with automobile washing services.

[00:08:42] Speaker 01:
There was significant evidence that operators and vendors used that term generically, but the TPAP denied the genericness finding this court affirmed because there's a lack of evidence as to ordinary purchasers.

[00:08:54] Speaker 01:
That's precisely what happened here.

[00:08:57] Speaker 01:
There's very little distinction except for the actual goods at issue.

[00:09:02] Speaker 01:
What we have here is highly sophisticated individuals.

[00:09:04] Speaker 01:
For example, Jennifer Swiatek is a veteran professional buyer.

[00:09:08] Speaker 01:
She is a quintessential example of a sophisticated consumer.

[00:09:12] Speaker 01:
And she testified only as to her perception.

[00:09:16] Speaker 01:
Likewise, Patrick Rue is an industry participant.

[00:09:19] Speaker 01:
He is a professional brewer.

[00:09:20] Speaker 01:
He owns a brewery.

[00:09:22] Speaker 01:
He testified as to his perception.

[00:09:24] Speaker 01:
and the perception of the beer industry, those in the beer industry.

[00:09:28] Speaker 01:
He also made a reference to craft beer consumers, but he described those consumers as highly sophisticated.

[00:09:33] Speaker 01:
There's simply no reference in this case to anything other than highly sophisticated parties.

[00:09:38] Speaker 00:
Let me just give it a try to understand what your point in all this is.

[00:09:42] Speaker 00:
It's not that you argue, you're not arguing that you submitted evidence to show that this factor goes in your favor.

[00:09:49] Speaker 00:
It's that the board's factual findings are unsupported by substantial evidence because they rely on the industry people, not the general public.

[00:09:58] Speaker 00:
So you just want this factor to drop out.

[00:10:01] Speaker 01:
We don't necessarily want this factor to drop out.

[00:10:03] Speaker 00:
Well, how can you argue it's in your favor if you didn't submit any evidence whatsoever?

[00:10:08] Speaker 01:
Your Honor, at the board level, we argued that this evidence was insufficient to support this point.

[00:10:14] Speaker 00:
No, no, no.

[00:10:15] Speaker 00:
So let's assume I agree with you.

[00:10:16] Speaker 00:
I'm going to throw out all their evidence and say, this is an evidence of a normal consumer.

[00:10:21] Speaker 00:
So this is not indicative of what a normal consumer.

[00:10:25] Speaker 00:
We're left with no evidence, right?

[00:10:28] Speaker 01:
Right.

[00:10:28] Speaker 00:
So how can we find for you on this factor?

[00:10:31] Speaker 01:
Your Honor, first, if this is arbitrary.

[00:10:35] Speaker 01:
No, no, no.

[00:10:38] Speaker 00:
Can you just answer me that?

[00:10:39] Speaker 00:
How can we rule for you on this factor if there is no evidence either way showing what an average consumer would think?

[00:10:46] Speaker 01:
Well, Your Honor, then the factor would be neutral.

[00:10:49] Speaker 00:
Right.

[00:10:49] Speaker 00:
That's what I'm getting at.

[00:10:50] Speaker 00:
Is that what you're trying to get?

[00:10:51] Speaker 00:
You're trying to get this factor thrown out.

[00:10:52] Speaker 01:
Your Honor, Mackey submits that if this factor is neutral.

[00:10:55] Speaker 00:
You could have submitted evidence on this, and you took your chance that maybe nobody would come up and this would just be neutral.

[00:11:02] Speaker 00:
But you didn't try to get this factor in your favor.

[00:11:06] Speaker 01:
Your Honor, we argued that the expert report submitted by Lawson's is insufficient on its face, and that the evidence is insufficient.

[00:11:13] Speaker 00:
Can you just answer my question?

[00:11:14] Speaker 00:
You did not submit affirmative evidence to show that an average consumer would not understand Chinook to refer to Hops.

[00:11:23] Speaker 01:
Your Honor, that's correct, yes.

[00:11:25] Speaker 01:
There's no affirmative evidence in Mackey's favor.

[00:11:27] Speaker 01:
But Mackey does submit that if this factor is neutral, the other DuPont factor findings heavily weigh in favor of reversing the board's decision here.

[00:11:37] Speaker 01:
I see that I'm in my rebuttal time, so I will reserve that.

[00:11:40] Speaker 01:
Okay.

[00:11:41] Speaker 03:
Thank you.

[00:11:41] Speaker 01:
Thank you.

[00:11:46] Speaker 04:
Okay.

[00:11:46] Speaker 04:
There we go.

[00:11:52] Speaker 03:
Mr.. Kaiser, can you hear me?

[00:12:18] Speaker 03:
And can you see the court?

[00:12:21] Speaker 03:
All right, you may proceed.

[00:12:23] Speaker 02:
Thank you, Your Honor.

[00:12:24] Speaker 02:
Good morning.

[00:12:25] Speaker 02:
My name is Ryan Kaiser.

[00:12:26] Speaker 02:
I represent Oslo's finest liquids.

[00:12:29] Speaker 02:
May it please the court?

[00:12:31] Speaker 02:
The board's decision in this case was supported by substantial evidence.

[00:12:34] Speaker 02:
It should be affirmed.

[00:12:36] Speaker 02:
Substantial evidence is a deferential standard of review.

[00:12:39] Speaker 02:
And in one of the previous oral arguments this morning, I think one of Your Honors referred to it as a high hill to climb, indeed, where two different conclusions may be warranted based on the evidence of record.

[00:12:51] Speaker 02:
A decision to favor one conclusion over the other is the type of decision that must be sustained on this standard.

[00:12:58] Speaker 02:
And that's exactly what has happened here.

[00:13:00] Speaker 02:
Now, in light of the substantial evidence standard that's applied here, and for the following two specific reasons, there's no basis for reversing the board's decision.

[00:13:10] Speaker 02:
First, there is substantial evidence that Chinook or IPA that's used on beer has a different commercial impression than Chinook

[00:13:18] Speaker 02:
as used on wine, regardless of whether Chinook is deemed to be generic or not.

[00:13:23] Speaker ?:
And second, there is substantial evidence that Chinook is generic for beer, particularly Chinook IPAs, which are made with Chinook hops.

[00:13:35] Speaker 02:
In turning to the first point, the board's finding as to commercial impression, which is the issue on this appeal, did not require genericness of the term Chinook.

[00:13:45] Speaker 02:
The board explained that when used in connection with beer, Chinook means the type of hops that engenders a different commercial impression than Chinook used in connection with wine.

[00:13:56] Speaker 02:
Now, while the board did mention Chinook as to beer and the genericness analysis, it wasn't a prerequisite finding on commercial impression.

[00:14:05] Speaker 02:
Rather, it was a reference to its analysis and the evidence that Lawson's put in the record, and you can see

[00:14:13] Speaker 02:
how the board made its decision in looking at the case law that it cites in its analysis.

[00:14:17] Speaker 02:
So in reaching its conclusion that Chinook and IPA and Chinook have different commercial impressions, the board cites case law in which suggestive meanings of the terms at issue were controlling.

[00:14:29] Speaker 02:
So for example, in the board's ruling at appendix 54 and 55, the board cited to coach services versus triumph learning.

[00:14:41] Speaker 02:
and which that held that the coach mark when applied to fashion accessories is clearly suggestive carriage travel.

[00:14:49] Speaker 02:
Similarly, in Inray Sears Roebuck Company, the mark crossover when applied to brassiers was suggestive of the construction of the brassiers.

[00:14:59] Speaker ?:
So in those cases, the commercial impression of the marks at issue were determined merely by their suggestive characteristics.

[00:15:07] Speaker ?:
They didn't, not because they were generic,

[00:15:25] Speaker 02:
Appendix 54.

[00:15:27] Speaker 02:
As evidence for that conclusion, the board cited to testimony of Mackie.

[00:15:32] Speaker 02:
And then they took judicial notice of a dictionary definition at Appendix 36 and a Wikipedia page.

[00:15:39] Speaker ?:
That was the evidence.

[00:15:41] Speaker 02:
And the board found that Chinook suggested the Pacific Northwest.

[00:15:45] Speaker 02:
Then it turned to the Chinooker IPA mark for which there was substantial evidence.

[00:15:49] Speaker 02:
And the board referred to its discussion and the evidence of Chinook in relation to beer

[00:15:54] Speaker 02:
and found that Chinook had a connotation of beer and that Chinookerd, as it formed part of the mark Chinookerd IPA, was actually a play on the term Snockerd.

[00:16:05] Speaker 02:
And just as it had for Mackey's mark, it relied on a dictionary definition for the meaning of Snockerd.

[00:16:11] Speaker 02:
And it came to the conclusion that Chinook and Chinookerd was a play on the word Chinook and Snockerd.

[00:16:27] Speaker 02:
with respect to wine.

[00:16:29] Speaker 02:
The result here would have been the same regardless of whether Chinook was found to be generic, descriptive, or even suggestive as the case law that the board cites suggests.

[00:16:39] Speaker ?:
So again, there is no need to find that Chinook is generic in this case.

[00:16:45] Speaker ?:
The result of the case is going to be the same.

[00:16:47] Speaker ?:
Now, even if the board's commercial impression finding did require that Chinook was generic for beer, there's substantial evidence supporting that finding too.

[00:16:56] Speaker ?:
And in challenging the genericness finding, Mackey makes several critical errors disappear.

[00:17:02] Speaker 02:
I'm sorry, critical errors in this appeal.

[00:17:05] Speaker 02:
First, they cite the wrong burden of proof that Lawson was held to a trial.

[00:17:12] Speaker 02:
Second, they conflate the relevant public standard that's used in assessing genericness with the least sophisticated consumer standards.

[00:17:23] Speaker 02:
And third, they just ignore the evidence, both direct evidence and indirect evidence of genericness.

[00:17:30] Speaker 02:
So turning to the first issue, they use the wrong burden.

[00:17:33] Speaker 02:
Mackey suggests multiple times that Lawson's was required at trial to prove genericness by clear and convincing evidence.

[00:17:39] Speaker 02:
You can see this at their brief at page 13 and their reply brief at page 3.

[00:17:46] Speaker 02:
In reality, clear and convincing evidence is the standard for ex parte cases.

[00:17:49] Speaker 02:
In inter partes, oppositions, and cancellation proceedings like this one, the opposer or petitioner only bears the burden of proving genericness by a preponderance of the evidence.

[00:18:00] Speaker 02:
So, Mackey's entire analysis in this case, in this appeal, is based on the premise that Lawson had a higher burden in trial than it actually did.

[00:18:10] Speaker 02:
Next, Mackey conflates the second Marvin Guillen prom, which is the perception of the term at issue.

[00:18:16] Speaker 02:
With the fourth new pop factor, which deals with consumer sophistication, Matthew repeatedly argues that the relevant public's perception of determined genericness must be based on the least sophisticated consumer.

[00:18:30] Speaker 02:
That is simply not the case.

[00:18:32] Speaker 02:
Marvin Gan instructs that the test is one of many

[00:18:53] Speaker ?:
craft and homeowners, beer distributors, and beer drinkers, the consumer, right?

[00:19:00] Speaker 02:
Neither party disputed that finding on appeal.

[00:19:03] Speaker 02:
It's not an issue that's been appealed.

[00:19:07] Speaker 02:
I am not aware of any federal circuit or decisions requiring only evidence as to the least sophisticated member of the relevant public to be considered, and Matt certainly doesn't cite any such authority.

[00:19:21] Speaker 02:
For example,

[00:19:23] Speaker 02:
In his reply brief at page two, Mackey argues that this decision must be based on the least sophisticated potential consumer.

[00:19:30] Speaker 02:
And he cites Stone Lion Capital Partners v. Lion Capital.

[00:19:34] Speaker 02:
However, a careful reading of Stone Lion reflects that that case didn't concern genericness.

[00:19:41] Speaker 02:
And the passage that they cite to concerns the fourth Dupont factor, sophistication of the consumer.

[00:19:49] Speaker 02:
So the least sophisticated consumer is not the standard in proving genericness.

[00:19:54] Speaker 02:
Here, in determining how the relevant public perceived the term Chinook, the board wasn't required to limit itself to the least sophisticated potential purchaser, as Mackie argues.

[00:20:05] Speaker 02:
Instead, it properly looked at and relied on evidence of brewers, commercial purchasers, and ordinary consumers.

[00:20:12] Speaker 02:
This is the same issue that Mackie's relying on in the Magic Wand case.

[00:20:18] Speaker 02:
For the Magic Wand, the relevant public was defined as the end consumer.

[00:20:23] Speaker 02:
the people that are going to get their car washed at the car washes.

[00:20:27] Speaker 02:
The evidence in that case was trade publications, that there was no evidence that the ordinary consumers followed trade publications.

[00:20:36] Speaker 02:
And so the board said, well, you know, there's no evidence that people that are getting their cars washed read trade publications.

[00:20:43] Speaker 02:
That's not the same situation that we're in in this case.

[00:20:46] Speaker 02:
In this case, the relevant public includes brewers.

[00:20:49] Speaker 02:
It includes commercial distributors.

[00:20:52] Speaker 02:
And so in this case, the evidence submitted by Roux and Swiatek is directly on point.

[00:20:59] Speaker 02:
This is direct testimony from members of the public.

[00:21:03] Speaker 02:
In addition, unlike Magic Wand, in this case, we have indirect evidence showing that consumers would be aware of Chinook as used in beer names.

[00:21:12] Speaker 02:
We've got websites referring to Chinook hops as one of the most popular hops.

[00:21:16] Speaker 02:
We've got hundreds of different beers that use Chinook in the name or that use Chinook IPA generically.

[00:21:22] Speaker 02:
So it's just the case is not comparable to magic wand.

[00:21:28] Speaker 02:
Finally, discussing the evidence, Mackey ignores it.

[00:21:32] Speaker 02:
The board relied on unrebutted expert testimony, as well as testimony from direct testimony from members of the relevant public.

[00:21:41] Speaker 02:
Lawson is also submitting copious evidence, documentary evidence, showing the relevant public's association of the term schnook with beer.

[00:21:50] Speaker 02:
While it may not have been direct evidence from, you know, from the horse's mouth straight from the consumer, it is indirect evidence.

[00:21:57] Speaker 02:
And a finding of genericness can be based on indirect evidence.

[00:22:01] Speaker 02:
Matthew offers no case citation, nor have we found one that indicates that indirect evidence is categorically insufficient to find genericness.

[00:22:10] Speaker ?:
In fact, the case law is pretty clear.

[00:22:13] Speaker ?:
Evidence of the public's understanding of a term can be obtained from any competent source.

[00:22:18] Speaker 02:
And it lists things like dictionaries, newspapers, and other publications.

[00:22:24] Speaker 02:
Here, like in the case in Ray Cordura Cordua Restaurants, Inc., the board has relied on dictionary definitions.

[00:22:33] Speaker 02:
It has relied on articles from online publications.

[00:22:36] Speaker 02:
We have testimony from a member of the relevant public in Rue that this is a practice of beer makers to use beer hops names like Chinook in the names of the beers.

[00:22:48] Speaker 02:
We have evidence that hops, that chinok hops is not just an obscure unknown hops.

[00:22:53] Speaker 02:
It's one of the most popular hops for something like seven or eight years running.

[00:22:58] Speaker 02:
Now, that popularity reflects demand.

[00:23:02] Speaker 02:
Brewers aren't brewing beers with hops that people don't like.

[00:23:05] Speaker 02:
And that demand, it ties into the evidence that we've shown of the websites that show reviews of hundreds, literally hundreds of beers that are named chinok IPAs.

[00:23:17] Speaker 04:
Mr. Kaiser?

[00:23:18] Speaker 04:
Mr. Kaiser, can you hear me?

[00:23:20] Speaker 04:
It's Judge Clevenger.

[00:23:22] Speaker 02:
Yes, I can.

[00:23:23] Speaker 04:
So explain to me the significance of the schnuckered part of this case.

[00:23:31] Speaker 04:
Why is it relevant that schnuckered can be called of as schnuckered?

[00:23:42] Speaker 02:
Well, it's relevant because are you referring to the difference of opinion between Lawson's saying that

[00:23:48] Speaker 02:
Snookered was meant to refer to snookered and the board.

[00:23:51] Speaker 04:
Yeah, they're snookered.

[00:23:52] Speaker 04:
I mean is the notion that you get snookered on beer, but not on wine?

[00:23:58] Speaker 02:
No, no, no.

[00:24:00] Speaker 02:
The notion had nothing to do with wine.

[00:24:02] Speaker 02:
It was, and as is common for beer names, they like to get playful in their names.

[00:24:08] Speaker 02:
And there are a lot, I'm sure if you go to the grocery store, you'll notice there are a lot of beer names that are just nonsensical.

[00:24:13] Speaker 02:
It made no sense.

[00:24:15] Speaker 02:
But Lawson's,

[00:24:18] Speaker 02:
contended that they intended for the name to be a play on Snookerd.

[00:24:22] Speaker 02:
The board found that it could just as equally be considered a play on Snookerd.

[00:24:27] Speaker 02:
And again, the case law is clear that the possibility of drawing two inconsistent conclusions doesn't prevent the board's decision to pick one over the other as unsupported by substantial evidence.

[00:24:38] Speaker 02:
So whether it was supposed to mean Snookerd or Snookerd, the fact is it means something different than Chinook.

[00:24:47] Speaker 02:
which is, according to Mackie, a warm wind from the Pacific, or a Native American tribe, or a salmon.

[00:24:55] Speaker 02:
And again, as Your Honors pointed out during direct, there really is no evidence supporting Mackie's contention of what it's mark means.

[00:25:06] Speaker 02:
I mean, the board relied on dictionary and a Wikipedia page.

[00:25:11] Speaker 02:
Certainly, there's significantly more evidence reporting Lawson's contention than there is Mackey's.

[00:25:19] Speaker 02:
Again, looking at evidence, though, that the board considered, it's clear in the board's decision reflects that it thoroughly considered this evidence, as well as any limitations that it might have as to be probative.

[00:25:34] Speaker 02:
And you can see on appendix 25 through 29 when they go through the evidence of genericness,

[00:25:40] Speaker 02:
And specifically footnote 49, they discussed the provative value and the limitations of certain evidence.

[00:25:46] Speaker ?:
I think they were referring to a website reference.

[00:25:50] Speaker 02:
And they decided, they made a decision, we're going to consider it for whatever provative value it has.

[00:25:55] Speaker 02:
And when they considered it, they considered that it supported the finding that the mark was generic or that the word was generic.

[00:26:03] Speaker 02:
Your Honor, as I see, I have a minute and a half left, and I would very quickly like to address the two remaining factors here.

[00:26:09] Speaker 02:
The first being the fourth Dupont factor of consumer sophistication, and the third, or I'm sorry, the other being commercial strength.

[00:26:17] Speaker 02:
The fourth Dupont factor, there's no basis for reversing the court's decision on that.

[00:26:23] Speaker 02:
As this court pointed out, Mackey presented no evidence as to the ordinary consumer.

[00:26:29] Speaker 02:
In fact, in its reply brief, Matthew cites to the case N. Ray Red Lake Rum.

[00:26:35] Speaker 02:
And in N. Ray Red Lake Rum, the board actually analyzed the fourth Dupont factor in connection with beer.

[00:26:42] Speaker 02:
And it declined to narrow the beer category to just craft beer.

[00:26:46] Speaker 02:
It considered all beer consumers.

[00:26:48] Speaker 02:
And it found, nevertheless, that the fourth Dupont factor was neutral.

[00:26:51] Speaker 02:
because there was no evidence as to what the ordinary beer consumer was.

[00:26:55] Speaker 02:
That's the exact case that we have here in front of us.

[00:26:58] Speaker 02:
There's no basis for anything other than a finding of neutral.

[00:27:02] Speaker 02:
Similarly, with commercial strength, Mackey argues that just by submitting sales data, they should default to having a commercially strong mark.

[00:27:13] Speaker 02:
There's no basis for that position.

[00:27:14] Speaker 02:
There's no authority for that position.

[00:27:16] Speaker 02:
And if that were the law,

[00:27:18] Speaker 02:
Any litigate, all they would have to do is submit sales data and they would automatically have a commercially strong mark.

[00:27:24] Speaker 02:
That's not the law.

[00:27:26] Speaker 02:
There needs to be some context.

[00:27:28] Speaker 02:
And in this case, there is no context for their sales.

[00:27:31] Speaker 02:
For all of the four ongoing reasons, the request of the board's decision to be affirmed and certainly free, they're happy to answer any questions.

[00:27:39] Speaker 04:
It's Judge Clevenger.

[00:27:40] Speaker 04:
I don't have a further question, just a little word of advice to you.

[00:27:42] Speaker 04:
I think if you have another Zoom argument with another court, it'd be a good idea to wear your jacket.

[00:27:51] Speaker 04:
I think if you'd showed up here in our clerk's office to come to court and argue in front of us in your shirt sleeves, you probably would have been told to get a jacket.

[00:28:01] Speaker 02:
Thank you, Your Honor, duly noted.

[00:28:03] Speaker 02:
I apologize.

[00:28:05] Speaker 03:
OK.

[00:28:08] Speaker 03:
Thank you.

[00:28:10] Speaker 03:
Let's hear from Mr. Harms.

[00:28:13] Speaker 03:
You've got a little bit less than three minutes.

[00:28:15] Speaker 03:
Thank you, Your Honor.

[00:28:17] Speaker 03:
Hold just a second.

[00:28:20] Speaker 03:
Do you guys want to bear it?

[00:28:21] Speaker 03:
We're OK.

[00:28:21] Speaker 03:
You want to put on your mask?

[00:28:25] Speaker 03:
I'm OK.

[00:28:28] Speaker 01:
Your Honor, three points in rebuttal.

[00:28:31] Speaker 01:
First, Lawson points to the results of searching the term Chinook and its variation Chinook.

[00:28:39] Speaker 01:
on the website Untap.com, which is a website on which individuals can submit reviews of beer.

[00:28:46] Speaker 01:
However, 426 of the beers shown in the search records have no reviews.

[00:28:53] Speaker 01:
Less than 10% of the total results are beers that both have reviews and are made with reference to a unique label.

[00:29:00] Speaker 01:
This is not substantial evidence.

[00:29:01] Speaker 01:
This is suspect.

[00:29:03] Speaker 00:
So it comes down to, you're arguing this factional finding is not supported by substantial evidence, because the only evidence in the record you think is insufficient.

[00:29:13] Speaker 00:
There's no contradicting evidence, though.

[00:29:15] Speaker 01:
Your Honor, that's correct.

[00:29:16] Speaker 01:
But we also do submit that this was a legal error.

[00:29:19] Speaker 01:
That the board's finding that someone familiar with beer might have this commercial impression simply doesn't fit into the rubric.

[00:29:27] Speaker 01:
that although there is a constituency of highly sophisticated consumers that might have a commercial impression that would dispel confusion, that's not what the likelihood of confusion analysis is concerned about.

[00:29:41] Speaker 01:
That's why Mackey submitted cases considering... Why did you submit a consumer survey?

[00:29:50] Speaker 01:
Your Honor, we did not do that because we did not see the...

[00:29:53] Speaker 01:
the need to rebut Mr. Ryu's expert report, origin verse Witex declaration testimony.

[00:30:00] Speaker 01:
It's simply insufficient.

[00:30:02] Speaker 01:
It's not the testimony of someone that's going to be confused regardless.

[00:30:05] Speaker 01:
The rule of law shouldn't be to protect those that aren't going to be confused regardless.

[00:30:10] Speaker 01:
The rule of law should be to protect from consumer confusion for ordinary, traditional consumers.

[00:30:15] Speaker 01:
That's what's at issue here.

[00:30:18] Speaker 01:
Further, Lawson's contends that whether Chinook is descriptive or suggestive or generic makes no difference.

[00:30:26] Speaker 01:
That's not correct.

[00:30:27] Speaker 01:
First, this argument suffers from the same fundamental flaw, that even if it's descriptive or suggestive, there's no evidence in the records to suggest an ordinary consumer perceives it as such.

[00:30:40] Speaker 01:
The records suggest that ordinary consumers will perceive Chinook when applied to beer as simply arbitrary.

[00:30:46] Speaker 01:
Second, the distinction between something being suggestive and descriptive, or in contrast, generic, is that something that's descriptive and suggestive can serve a source-indicative function.

[00:30:58] Speaker 01:
Consumers are going to look for a source, even if it's suggestive or descriptive.

[00:31:02] Speaker 01:
They're going to look for a source.

[00:31:03] Speaker 01:
They're going to see that Chinook and Chinooker marks are similar in sound and appearance, that Mackey's Chinook mark is strong, that beer and wine are related goods, and they're sold in the same channels of trade to some of the same consumers.

[00:31:15] Speaker 01:
For those reasons, the board's decision should be reversed.

[00:31:17] Speaker 01:
Thank you.

[00:31:19] Speaker 03:
Thank you, sir.

[00:31:21] Speaker 03:
That's it for today's arguments.

[00:31:23] Speaker 03:
This court now stands in recess.