[00:00:03] Speaker 02:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:07] Speaker 02:
God save the United States and its honorable court.

[00:00:11] Speaker 04:
The first case to argument this afternoon, the only case, is 20-1196 Piano Factory Group versus Scheidmeier, Celesta, GMBH.

[00:00:23] Speaker 04:
Mr. Stevenson, whenever you're ready.

[00:00:26] Speaker 00:
Thank you, Your Honor.

[00:00:27] Speaker 00:
May it please the court, I appreciate the opportunity to address these issues.

[00:00:32] Speaker 00:
The first point I'd like to discuss with respect to our case is to deal with the constitutionality issues.

[00:00:39] Speaker 00:
And I think if I considered the Arthrex decision from the Supreme Court, there's kind of a key point that if you consider it, the concurrence and the dissent, the real issue the court struggled with was the fact situation where the director could not step in and change a panel decision after the fact.

[00:00:58] Speaker 00:
A lot of the things the government was proposing,

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were prophylactic measures or retaliatory measures, but they weren't able to change the panel decision after the fact.

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And so the question is, in this case, just as on page 8 of Arthrex, says whether the nature of the responsibilities of administrative trademark judges is consistent with their method of appointment.

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That, in my opinion, requires a consideration of all of the

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all the statutes that govern the operation of the administrative trademark judges.

[00:01:28] Speaker 06:
Mr. Stevenson, this is Judge Bryson.

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At the very end of its opinion, the court talked about comparing the PTAB judges with the TTAB judges, and it spoke favorably of the TTAB judges.

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Given that that was the court's characterization of the

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role of the TTAB judges as being subject to the director's discretion and direction.

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And given that the 2020 statute, even though it was enacted after the decision in this case from the TTAB, nonetheless that statute Congress announced was

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did not indicate that there was a change in the law, but simply confirmed the director's authority.

[00:02:24] Speaker 06:
Why doesn't Arthrax, in that event, answer this case?

[00:02:28] Speaker 00:
That's an excellent question.

[00:02:30] Speaker 00:
The real issue that I see with respect to cancellation proceedings for administrative trademark judges is Section 1092, and that for administrative trademark judges, the whole Lanham Act itself, there's no statutory right to rehearing.

[00:02:43] Speaker 06:
But doesn't Section 1092 apply only to the supplemental register?

[00:02:48] Speaker 06:
It does, but you have to remember... And this is a principal register case, right?

[00:02:52] Speaker 06:
It is, but it's... 1092 has nothing to do with this case.

[00:02:57] Speaker 00:
It actually has a lot to do with this case, for this reason.

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The judges, everything a judge does, an administrative trademark judge does, has to fall within this standard.

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Otherwise, the administrative trademark judge becomes a principal officer rather than an inferior officer.

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You can be unconstitutionally appointed if you're doing something that's unrelated to any particular case at hand, so long as there is a constitutional defect in your appointment.

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So this whole statutory scheme has to be clean.

[00:03:29] Speaker 06:
So are you saying that if there was some squirrely provision that said that every February 29th, a TTAB judge could sit by designation on a district court

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That would mean that the TTAB judges could not do their normal work subject to the direction of the director on a day-to-day basis on every day other than February 29th?

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Is that your position?

[00:04:02] Speaker 00:
My position is that

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I'd like you to address that question, though.

[00:04:09] Speaker 00:
Yeah.

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If you take the administrative trademark judges and you make them district court judges, you've now switched branches of the government.

[00:04:15] Speaker 06:
Right.

[00:04:16] Speaker 06:
They're district court judges for a day, but does that mean that everything else they do, assuming that it is perfectly lawful and subject to the director's direction, is then rendered unconstitutional?

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I think Arthrex is clear that there was a constitutional problem and that they had to come up with a remedy.

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So I think my position would be that, yes, you would have a constitutional issue with their appointment because they're performing tasks that do not follow the constitutionality grounds.

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Now, what the remedy for that is is a separate question.

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Does that invalidate what happened?

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That's a different question.

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But is there a constitutional defect in their appointment?

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That would be my position, yes.

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So, you know, I also do think, though, that what is unique about the TTAB judges, though, is that there isn't a statute that governs rehearings.

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So while the government has taken the position that because the director has, because the TTAB has the ability to make decisions, make cancellation decisions, there's also a right to revisit those decisions, that doesn't mean that there's any particular remedy that a party or even the director has access to in the form of a hearing that's guaranteed by that.

[00:05:28] Speaker 05:
Excuse me.

[00:05:28] Speaker 05:
This is Judge Stoll.

[00:05:29] Speaker 05:
One thing I thought was notable was that there was emphasis in the Arthrax decision that the director under the AIA did not have any discretion at all on whether to cancel the patent following an IPR decision from the TTAB.

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In contrast, under Section 1068, the TTAB statute seems to suggest that the director may cancel

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So it's only May, not shall.

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And this seems to be something that's an important distinction between what the Supreme Court was considering in our address and what we're considering here.

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What's your response to that?

[00:06:10] Speaker 00:
So my response to that is twofold.

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First, for 1068, I don't disagree that it says May.

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For 1092, it says shall.

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So before the Trademark Modernization Act, it said shall.

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And it was not.

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It was not optional.

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It was mandatory.

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The director could not undo if there's not much register.

[00:06:29] Speaker 05:
Excuse me.

[00:06:29] Speaker 05:
Just clarifying, 1092 again relates to the supplemental register, right?

[00:06:34] Speaker 00:
Correct.

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Correct.

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And we're talking principal register.

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Is that right?

[00:06:39] Speaker 00:
Yeah.

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We are talking principal register here.

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But again, going back to my point that if whatever you do,

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is unconstitutional or violates the appointment clause, you still have been unconstitutionally appointed, regardless of which statute applies.

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So because 1092 is the same problem that section 6C has, as it relates to cancellations, administrative trademark judges have the same problem administrative patent judges do.

[00:07:01] Speaker 05:
Plus, we have the issue of... What about 1067?

[00:07:06] Speaker 05:
You know, again, another distinction.

[00:07:07] Speaker 05:
Under the AIA, the director was not able to

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have a panel on the TTAB in which he was alone by himself.

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He would have to be one of three.

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And, you know, so that was not supervisory.

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Whereas in section 1067, the TTAB would allow the director to be a one-person TTAB board.

[00:07:34] Speaker 00:
That's a good point.

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But this kind of goes to the second point I was just about to make.

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The issue of no statutory right of rehearing

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doesn't give the director any remedy at all.

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It doesn't tell us that the statute permits the director to take a decision that's already been made and reappoint himself as the only person who can hear it.

[00:07:55] Speaker 05:
I mean, if you want to talk about an opaque process... Can I just interrupt you for a second for saying that because the director would have to make that determination in advance, that that is not a final say?

[00:08:08] Speaker 05:
Is that your point?

[00:08:10] Speaker 00:
Yeah, in other words, there's no statute that says what happens.

[00:08:13] Speaker 00:
We don't have this clear process.

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And frankly, does the director have the right to do it?

[00:08:19] Speaker 06:
Why wouldn't the director have the right by regulation to create a rehearing process by the TTAB and then appoint himself as the TTAB member?

[00:08:32] Speaker 00:
The concern that I have with just relying on regulations, that didn't sit well with the Supreme Court with respect to the PTED judges.

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They actually relied and hung their hat on the ability for them to invalidate part of the re-hearing statute.

[00:08:45] Speaker 00:
If from a due process perspective, the government can't, whatever the government gives you by rule, they can just totally take away.

[00:08:51] Speaker 00:
By statute, though, Congress gives litigants and other people a defined process.

[00:08:56] Speaker 06:
But remember, the Appointment Clause is not for the benefit of litigants.

[00:09:00] Speaker 06:
It's for the benefit of the structure of the government.

[00:09:04] Speaker 06:
So if the director has authority to do something like create a rehearing system in which he is the person doing the rehearing, why doesn't that satisfy Appointments Clause problems?

[00:09:18] Speaker 00:
The issue is the director, so I'm saying right now, if that was happening at the PTO, if that's what the regulations actually said, you'd have a point.

[00:09:25] Speaker 00:
But right now, all the regulations point you back to the same TTAB panel,

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And they don't explicitly give you a right to get to the director or for the director to step in either.

[00:09:35] Speaker 00:
What would happen is something shadowy in the background.

[00:09:37] Speaker 00:
And that's what in Arthrex the Supreme Court condemned.

[00:09:40] Speaker 00:
This opaque process where you can't tell

[00:09:43] Speaker 00:
where the director's responsibility is or what's going on in the background.

[00:09:47] Speaker 06:
Well, how do you account then for the fact that the Supreme Court at the end of its opinion, I'm sure you're familiar with that part of the opinion, in which they hold up the TTAB system as a model of constitutional appointments?

[00:10:02] Speaker 00:
The way I resolve that simply is by simply indicating that the Trademark Modernization Act that made specific explicit changes to 1092 to correct the issue that was there

[00:10:13] Speaker 00:
was not enforced when this decision was decided.

[00:10:16] Speaker 00:
And there's nothing in that statute that indicates that it was intended to be retroactive.

[00:10:20] Speaker 06:
Well, but on the other hand, isn't it the case that that statute specifically refers to its confirming director's prior authority and states, I think, in a note that the statute will not be construed to suggest that this constitutes a change in the director's authority?

[00:10:41] Speaker 00:
I think Congress is free to say whatever they want in the statute, but that doesn't change what the statute says.

[00:10:47] Speaker 00:
The statute says the director shall be canceled by the director.

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The registration shall be canceled by the director.

[00:10:53] Speaker 00:
It's not optional.

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There's no way out.

[00:10:56] Speaker 00:
And without any statutory right of rehearing, there's nothing to cancel that out in the statutory scheme at the time this case was decided.

[00:11:05] Speaker 06:
Could I ask you a question about another part of the case?

[00:11:09] Speaker 06:
Your argument

[00:11:11] Speaker 06:
On the question of latches, you say that you weren't required to raise the argument that you're now making with respect to prejudice before the T-tab because, if I understand the argument, it is that the error didn't become evident

[00:11:39] Speaker 06:
until after the TTAB rules, which was after you would have had to raise an objection.

[00:11:45] Speaker 06:
Is that your point?

[00:11:47] Speaker 00:
Yeah, I mean, it's an entirely theoretical harm until the decision.

[00:11:53] Speaker 06:
Right, but wouldn't that in effect mean that every error

[00:11:58] Speaker 06:
would be non, no, there would never be waiver of an error because the harm is always theoretical until the proceeding is over and you lose.

[00:12:09] Speaker 06:
For example, suppose I'm a criminal defense lawyer and I fail to object to the admission of inadmissible evidence.

[00:12:19] Speaker 06:
Well, the harm doesn't come until the verdict of guilty is returned against my client.

[00:12:24] Speaker 06:
That doesn't mean I haven't waived the problem.

[00:12:28] Speaker 06:
Isn't that the case?

[00:12:30] Speaker 00:
I would, but I would distinguish that situation from the one at hand where I have a senior common law user of a mark and a junior registrant, where the junior registrant is relying on the registration to protect them from the senior user and where we're basically talking about a situation of where, you know, you've got, once you show that there is a clear and unmistakable association,

[00:12:57] Speaker 00:
as the TTAB argued there was in this case, the standard for likelihood of confusion is less than that.

[00:13:03] Speaker 00:
And so essentially, you've painted the person into a corner.

[00:13:06] Speaker 00:
By rendering the decision, you've essentially opened and shut an infringement case.

[00:13:11] Speaker 00:
That's a different situation than failing to object to evidence.

[00:13:15] Speaker 00:
It's a situation that you kind of get painted into by a box.

[00:13:19] Speaker 00:
It's an issue preclusion kind of situation.

[00:13:22] Speaker 00:
I'm just saying the TTAB needs to consider the issue preclusive effect

[00:13:26] Speaker 00:
as a potential harm when it's a rendering decision.

[00:13:30] Speaker 00:
There's no evidence that they did that in this case.

[00:13:33] Speaker 06:
They weren't asked to, as I understand it.

[00:13:35] Speaker 06:
You didn't ask them to.

[00:13:38] Speaker 00:
We didn't ask them to specifically come up with that at the time that is correct.

[00:13:42] Speaker 06:
All right.

[00:13:45] Speaker 00:
I see my time has expired, so I'm willing to yield unless there are further questions.

[00:13:50] Speaker 04:
If you want to take a couple more minutes to discuss the merits, that would be fine with me.

[00:13:57] Speaker 04:
You're into your rebuttal time, but it's your choice.

[00:14:03] Speaker 00:
I would like to talk about one specific issue that's really the issue in this case.

[00:14:08] Speaker 00:
One of them is the nature of the goods then questioned.

[00:14:11] Speaker 00:
A celesta is a specific kind of musical instrument.

[00:14:15] Speaker 00:
It sounds like a series of bells.

[00:14:16] Speaker 00:
As you press the keys, it sounds like a series of bells.

[00:14:19] Speaker 00:
It's used to play.

[00:14:20] Speaker 00:
The most famous use is to play the dance of the sugar-prumbed fairy from Tchaikovsky.

[00:14:24] Speaker 00:
The part that says, you know, that's the Celesta.

[00:14:30] Speaker 04:
That's the worst argument I've ever been at where we had musical company.

[00:14:35] Speaker 04:
I know.

[00:14:36] Speaker 00:
One of the problems with this case is you can't ever hear the sound of the instrument.

[00:14:39] Speaker 00:
And that's an issue.

[00:14:40] Speaker 00:
They sound differently from each other.

[00:14:41] Speaker 00:
They don't play each other's music.

[00:14:43] Speaker 00:
A piano and a Celesta, they don't play each other's music.

[00:14:46] Speaker 00:
If you sat down and pressed the keys, you'd immediately be able to tell they're different instruments.

[00:14:50] Speaker 00:
One of the, and so the challenge, the question I would just like to bring up is that I couldn't use, if for example the registration was transferred to Sheedmare, they could not renew this registration with their use for celestas because celestas are not pianos.

[00:15:10] Speaker 00:
They would present a specimen, a photograph of the celesta and under 18 USC 1001 you could not make

[00:15:17] Speaker 00:
a good faith statement saying that that is a piano, a piano forte.

[00:15:22] Speaker 00:
The declaration of Russell Casmon at appendix 1166 and 1167 confirms this.

[00:15:26] Speaker 00:
He sold both celestas and pianos.

[00:15:28] Speaker 00:
In fact, he sold siedmeier pianos and siedmeier celestas at the same time.

[00:15:33] Speaker 00:
And no one was confused.

[00:15:35] Speaker 00:
And they're clearly different instruments.

[00:15:37] Speaker 00:
And that is one thing on the merits that I would like to put out is that the board erred by saying that the goods that siedmeier has rights to are celestas.

[00:15:46] Speaker 00:
our pianos, when in fact all they make is Celestas and have not made pianos for 41 years and have abandoned them.

[00:15:55] Speaker 04:
Thank you.

[00:15:55] Speaker 04:
We'll restore some time on for rebuttal.

[00:15:58] Speaker 04:
Thank you.

[00:15:58] Speaker 00:
Thank you.

[00:16:00] Speaker 04:
Mr. Stryker.

[00:16:03] Speaker 01:
May I please forward, Your Honors.

[00:16:09] Speaker 01:
Also, Ms.

[00:16:10] Speaker 01:
Jennifer Utrecht speaking on behalf of the United States Patent and Trademark Office and

[00:16:16] Speaker 01:
it was understood that she would bear the laboring or with respect to the institutionality issue in this case.

[00:16:28] Speaker 01:
With respect to the other issue that was raised, that is the latches, the TTAB reached a decision that there was no material prejudice

[00:16:44] Speaker 01:
resulting from the filing of material prejudice resulting from the filing of our petition to cancel.

[00:16:53] Speaker 01:
The appellant has failed to demonstrate any prejudice that occurred in this case as a result.

[00:17:02] Speaker 01:
The arguments of the appellant do not include any material damages in the nature of

[00:17:12] Speaker 01:
Pecuniary damages or damages relating to investments that might have been made or anything of that nature.

[00:17:21] Speaker 01:
And they have not made any allegations in that respect.

[00:17:25] Speaker 01:
Rather, they have come up with a rather novel theory that as a result of having lost the case before the TTAB, now some form of raise judicata has been created

[00:17:39] Speaker 01:
in this case, I believe, issue preclusion.

[00:17:43] Speaker 01:
And as a result, in the purely hypothetical situation where at some point in the future, Shiedmeier might sue the appellant, they would be damaged.

[00:17:59] Speaker 01:
First of all, that rather novel theory of law was never brought before the PTAB and shouldn't be heard by this court.

[00:18:08] Speaker 01:
And second of all, it really does not make sense in the long run.

[00:18:14] Speaker 01:
If the matter is kept to its logical conclusion, then every time a litigant lost a case, there would be material damages as a result because of some hypothetical theory that a person might be damaged because of race data in the future.

[00:18:39] Speaker 01:
Therefore, I do not believe that the theory of race Uticata has been established.

[00:18:49] Speaker 04:
Mr. Stryker, this is Judge Prost.

[00:18:51] Speaker 04:
Let me ask you about another matter raised by your friend, which is that his registration is only for piano.

[00:18:59] Speaker 04:
So, they complain that the relevant goods

[00:19:02] Speaker 04:
should not, why should the relevant goods category be keyboard musical instruments, which includes things other than pianos?

[00:19:11] Speaker 04:
I guess you get that, right?

[00:19:14] Speaker 01:
Yes.

[00:19:15] Speaker 01:
First of all, a celesta is de facto a piano.

[00:19:18] Speaker 01:
The only difference between the two piano and a celesta is that in a celesta, when the keyboard, when a key is struck

[00:19:30] Speaker 01:
the hammer hits a plate, a metal plate.

[00:19:34] Speaker 04:
I can't remember.

[00:19:35] Speaker 04:
Did the board make that finding that a Celeste is a de facto piano?

[00:19:41] Speaker 01:
The board made the finding that the two products are inherently similar.

[00:19:47] Speaker 01:
And they also noted that for purposes of false association, this type of similarity is not required in a false association case.

[00:19:59] Speaker 01:
It's not necessary that the two products be identical or even that similar.

[00:20:05] Speaker 01:
It is only a question of whether the public will consider a connection between the two.

[00:20:12] Speaker 01:
I'm kind of reminded of Johnny Carson with the Hello Johnny toilet brush where a false association was found.

[00:20:21] Speaker 01:
There was absolutely nothing.

[00:20:22] Speaker 01:
similar between the two products there.

[00:20:25] Speaker 04:
Products are not cheap.

[00:20:27] Speaker 04:
And if I want to go out and buy a piano, I want to go out and buy a piano, even though you may say that there's a lot of similarity between the two, usually the consumer would know what he or she wants to purchase and would not be confused about the two different instruments, right?

[00:20:49] Speaker 01:
Does that matter?

[00:20:50] Speaker 01:
They might be able to tell a celesta from a piano, but they would assume logically as what happened in this case that pianos are often manufactured by the same company that manufactures a celesta.

[00:21:06] Speaker 01:
And more importantly, celestas and pianos are sold often in the same venue.

[00:21:13] Speaker 01:
Mr. Kasman, which is the appellant's witness,

[00:21:19] Speaker 01:
running a piano store was selling both celestas and pianos.

[00:21:24] Speaker 01:
Our witness, Ms.

[00:21:26] Speaker 01:
Kazimir, also runs a musical instrument store, also was selling celestas, in fact, our celestas, and was selling pianos.

[00:21:37] Speaker 01:
So that is a connection sufficient to meet the requirements of the statute relating to Section 2A false association.

[00:21:51] Speaker 01:
One of the issues also raised by the appellant was the internet evidence.

[00:21:58] Speaker 01:
And the argument was made that the internet evidence was not proper evidence because of the time period between the internet evidence being taken and the time when the female reputation of the sheet buyer mark was required, namely 2007.

[00:22:22] Speaker 01:
The internet evidence was taken considerably later, several years after that.

[00:22:30] Speaker 01:
Internet evidence in itself is available and proper evidence in a case, perhaps not for the truth of what is indicated, but certainly for what has taken place.

[00:22:44] Speaker 01:
In this case, the internet evidence was a Google search covering 40 pages

[00:22:50] Speaker 01:
of Siedmeier material, a very impressive amount, as well as a Wikipedia entry.

[00:22:58] Speaker 01:
It is my position that the board was completely correct in assuming that this is available evidence tending to show the fame and reputation of Siedmeier, even though it went back several years.

[00:23:13] Speaker 01:
the evidence like the evidence of which I am aware is rebuttable and it was up to the appellant if it did not think that it was salient evidence to rebut it in some way or another and they did nothing and I believe that it was perfectly correct for the TCAB to accord that powerful evidence some degree of

[00:23:40] Speaker 01:
of currency in this case.

[00:23:44] Speaker 01:
It is not the only evidence in this case.

[00:23:47] Speaker 01:
There is a host of other evidence relating to the fame or reputation of Shiedmire, and this is just a contributing factor.

[00:23:55] Speaker 06:
Mr. Stryker, if I could, I have a factual question I'd like to ask you.

[00:24:00] Speaker 06:
On page 20 of the appendix, I think it's page 19 of the board's opinion,

[00:24:07] Speaker 06:
The board says that there's no evidence that the sales were unauthorized.

[00:24:15] Speaker 06:
These are the pre-2000 sales of pianos under the Schiedmeier mark.

[00:24:25] Speaker 06:
That struck me as a little strange because I thought it was your position that, for example, sales by Kaowai were unauthorized.

[00:24:34] Speaker 06:
by Shiedmeier.

[00:24:36] Speaker 06:
Do you, is there an explanation for the statement by the board on that point?

[00:24:43] Speaker 01:
That's a very good question.

[00:24:46] Speaker 01:
Whatever happened in 1980 over 40 years ago is at best.

[00:24:52] Speaker 06:
Well, I understand, but I'm really trying to get at the precise problem of did the board make a mistake in saying that there was no evidence that they were unauthorized?

[00:25:04] Speaker 01:
No, I don't believe so.

[00:25:06] Speaker 01:
There's no evidence that it was specifically authorized either.

[00:25:11] Speaker 01:
And I think the board assumed that it was not unauthorized in connection with the joint venture that was made with connection with... The EBAC.

[00:25:24] Speaker 01:
Yes.

[00:25:24] Speaker 06:
The EBAC.

[00:25:25] Speaker 01:
Yes.

[00:25:26] Speaker 01:
But there was really no evidence really here.

[00:25:29] Speaker 01:
as to an unauthorized activity.

[00:25:33] Speaker 06:
Didn't Mrs. Shiedmeier say so in her declaration, that it was unauthorized, that Kawhi's sales were unauthorized?

[00:25:41] Speaker 01:
I don't have the declaration in front of me.

[00:25:44] Speaker 06:
Well, I do.

[00:25:45] Speaker 06:
And I think that's effectively her testimony about the Kiwi.

[00:25:50] Speaker 01:
If the Kiwi, if that's what Mrs. Shiedmeier said, then that is correct and that the board was not correct in indicating that

[00:25:58] Speaker 01:
that might have been an unauthorized, at least in the eyes of Mrs. Shiedmeier, an unauthorized sale.

[00:26:05] Speaker 01:
Bear in mind that we do not know very much of anything of the Kiowa sales.

[00:26:11] Speaker 01:
They could be very limited.

[00:26:14] Speaker 01:
It could be just two or three.

[00:26:15] Speaker 01:
We have no idea and very little evidence of what actually transpired there.

[00:26:20] Speaker 01:
All right.

[00:26:23] Speaker 06:
But.

[00:26:24] Speaker 06:
OK, thank you.

[00:26:29] Speaker 04:
I think we're ready to hear from Ms.

[00:26:31] Speaker 04:
Oltrek.

[00:26:34] Speaker 02:
Good afternoon, Your Honor.

[00:26:35] Speaker 02:
This is Senator Oltrek on behalf of the intervener.

[00:26:37] Speaker 02:
I'd like to take my time today to discussing the Supreme Court's recent decision in our tracks and the merits on the appointment college challenge race in this case.

[00:26:47] Speaker 06:
Before you get to that, could I ask you a question really that goes to nomenclature more than anything else?

[00:26:53] Speaker 06:
I noticed, and this is really asking about a kind of

[00:26:58] Speaker 06:
the trademark Argo.

[00:27:00] Speaker 06:
I noticed that the courts, including our court, have referred to 2A violations of this sort by using the term false association.

[00:27:11] Speaker 06:
But the board seems to be fairly consistent in referring to these violations as false suggestion cases.

[00:27:19] Speaker 06:
What is, in your view, the more proper way to characterize this particular 2A violation?

[00:27:27] Speaker 02:
I don't know.

[00:27:29] Speaker 02:
There is certainly an inconsistency sometimes in how we discuss these as a nomenclature thing, but I think they both get to the same point, which is, is there an association or a suggestion that there's a tie between these companies, between these goods when they're really shouldn't be?

[00:27:48] Speaker 02:
All right.

[00:27:49] Speaker 06:
It doesn't make any difference.

[00:27:50] Speaker 06:
Whether you use one or the other, they're equivalent.

[00:27:52] Speaker 02:
Right.

[00:27:53] Speaker 02:
The analysis is the same regardless of, you know, whether you use the word reconciliation or suggestion.

[00:27:58] Speaker 06:
And could I ask one other question?

[00:28:00] Speaker 06:
I'm sorry, I'll let you get to your appointments clause issue.

[00:28:04] Speaker 06:
The board found that there was an inference of intent in this case against Mr. Tribus.

[00:28:13] Speaker 06:
I was wondering, what role do you think intent plays in the analysis of a 2A violation?

[00:28:22] Speaker 06:
In particular, where would the issue of intent fit within the Notre Dame factor?

[00:28:29] Speaker 02:
Sorry, one second.

[00:28:30] Speaker 02:
In fact, I think it goes to at least as evidence of a question of whether the public would associate these

[00:28:44] Speaker 02:
I mean, what would associate the products together?

[00:28:47] Speaker 02:
Because, of course, if someone's trying to create a false association, that might not be dispositive evidence, but it's certainly relevant evidence as to whether the public would, in fact, make that sort of association.

[00:29:00] Speaker 06:
Okay.

[00:29:00] Speaker 06:
Well, thank you.

[00:29:05] Speaker 02:
With respect to Supreme Court's decision on artifacts, as Your Honors know,

[00:29:10] Speaker 02:
In our practice group court found that administrative patent judges were principal officers because of a specific restriction in 35 U.S.C.

[00:29:18] Speaker 02:
section 6C that limited the director's authority to review and reverse decisions of the patent trial and appeal board.

[00:29:26] Speaker 02:
That particular section states that only the PTAB could listen to the hearing and that all decisions by the PTAB had to be made by three-member panel.

[00:29:35] Speaker 02:
And so, as written, the Patent Act precluded the director from

[00:29:39] Speaker 02:
directly unilaterally reviewing and reversing administrative patent judge decisions.

[00:29:45] Speaker 02:
And what's critical here is that there's no such restriction with respect to the trademark trial on appeal board.

[00:29:51] Speaker 02:
In fact, Supreme Court explicitly modeled the remedy in Arthrex based on the statutory scheme at issue here.

[00:29:58] Speaker 02:
It held that 35 U.S.E.

[00:30:02] Speaker 02:
section 60 was unconstitutional to the extent it limited the director's authority to rehear,

[00:30:07] Speaker 02:
and explicitly said that permitting the director to rehear would bring the patent statutory scheme in line with the trademark statutory scheme.

[00:30:15] Speaker 02:
That confirms that there's no constitutional issue with respect to the appointment of the... So your view... This is Judge Crouse.

[00:30:22] Speaker 04:
So your view is the absence of a prohibition is sufficient because... Yes, Your Honor.

[00:30:27] Speaker 04:
...that a matter allows it.

[00:30:28] Speaker 02:
Yes, Your Honor, because as this court has recognized in Tokyo's

[00:30:33] Speaker 02:
I'm going to butcher this name, Sessa Cuscio, and as other courts of appeals have recognized in other decisions, there is an inherent... Inherent in the power to decide is the power to rehear.

[00:30:44] Speaker 02:
And unless there is a... Sorry, this is statutory restrictions.

[00:30:47] Speaker 02:
Yes, please.

[00:30:48] Speaker 04:
Ms.

[00:30:48] Speaker 04:
Altrecht, why don't you proceed?

[00:30:50] Speaker 04:
Thank you.

[00:30:51] Speaker 02:
Your Honor, I believe the question was, you know, whether rehearing is inherent.

[00:30:55] Speaker 02:
And the answer is yes, unless there is a specific statutory limitation

[00:31:00] Speaker 02:
prohibiting or restricting rehearing, the power to rehear is inherent in the power to decide.

[00:31:06] Speaker 02:
The problem in our effective course is that there was a specific statutory restriction, 35 U.S.C.

[00:31:11] Speaker 02:
Section 60 said only the PTAB could rehear and all decisions of the PTAB had to be made by three-member panels.

[00:31:19] Speaker 02:
That restriction does not exist with respect to the trademark trial appeal board.

[00:31:24] Speaker 02:
LAMMAC does not have that restriction.

[00:31:26] Speaker 02:
And in fact, Congress confirmed when it enacted the trademark modernization law.

[00:31:32] Speaker 02:
that there is no such restriction and that the director has always had the authority to rehear.

[00:31:38] Speaker 02:
And specifically, Congress said that... Well, Ms.

[00:31:42] Speaker 04:
Elstrick, I've got a question about that.

[00:31:44] Speaker 04:
That seems quite unusual.

[00:31:46] Speaker 04:
And what are we to make of that kind of congressional edict, that sort of retroactive language?

[00:31:53] Speaker 04:
Like, this is what we meant to say 20... This is exactly what we said 20 years ago.

[00:31:58] Speaker 04:
It's quite unusual, right?

[00:31:59] Speaker 04:
And are we supposed to take that as...

[00:32:01] Speaker 04:
a real statutorily binding pronouncement?

[00:32:06] Speaker 02:
There are a number of times when Congress makes changes to statutes that they include language like that.

[00:32:17] Speaker 02:
You know, sometimes we see this when Congress amends a statute to make various technical changes and they will include language that says this is not intended to change the way things are.

[00:32:26] Speaker 02:
And the reason for that is because it's done with the intent to

[00:32:30] Speaker 02:
either, as was the case here, preempt possible litigation over what Congress views as a non-issue or to prevent new litigation when people say that the change was meant to create some sort of substantive change when Congress didn't want to.

[00:32:45] Speaker 02:
But more importantly, you don't need to take Congress's word for it here because, as already discussed,

[00:32:52] Speaker 02:
that there is an inherent authority to rehear.

[00:32:54] Speaker 02:
And the problem in Arthrex was the restriction that existed in 35 USC Section 6.

[00:33:01] Speaker 02:
And there's no doubt that that restriction did not exist with respect to the Landon Act governing the Trademark Trial and Appeal Board.

[00:33:09] Speaker 02:
There was not, at the time of this proceeding, before the Trademark Modernization Act, there was not

[00:33:15] Speaker 02:
any statutory prohibition on the director's review of trademark trial and appeal board decisions.

[00:33:23] Speaker 06:
I take it you would have agreed that prior to 1999 there would have been a problem with the TTAB composition issue, right, because of the three judge requirement that used to be in the statute?

[00:33:37] Speaker 02:
So yes, prior to 1999 there was a restriction that was

[00:33:40] Speaker 02:
essentially identical to the restriction the Supreme Court found constitutionally problematic in Arthrex.

[00:33:46] Speaker 02:
That was removed, that's correct.

[00:33:50] Speaker 06:
So I guess your position is that regardless of how one construes the 2020 statute and whether one takes Congress at its word, that it didn't intend to change anything, that in fact it didn't change anything, and this case would be identical if the 2020 statute had never been enacted.

[00:34:09] Speaker 02:
Yes, Your Honor.

[00:34:10] Speaker 02:
And in fact, our intervener brief in this case was filed before the 2020 statute was enacted and we put the same exact position there because the statute, you know, permitted the director the authority to rehear decisions by the TTAB before the Trademark Modernization Act.

[00:34:28] Speaker 06:
What do you say to your opposing counsel's 1092 argument?

[00:34:35] Speaker 02:
The short answer is that the fact that there may be mandatory language in 1092 really isn't constitutionally relevant.

[00:34:42] Speaker 02:
Remember that in Arthrex, there's similar mandatory language in 35 USC section 318B, which says the director shall issue cancellation in accordance with the PTAB.

[00:34:54] Speaker 02:
But the Supreme Court didn't take issue with that mandatory language.

[00:34:57] Speaker 02:
It took issue with the fact that the director couldn't assert himself

[00:35:01] Speaker 02:
in a hearing process before he issues a cancellation.

[00:35:05] Speaker 02:
And that restriction came from Section 6C, the three-member panel restriction.

[00:35:11] Speaker 06:
And so the position then I take it is that as long as the director can insert himself as DET tab, it doesn't matter whether he's required to or given the leeway about certifying.

[00:35:24] Speaker 02:
The question is, as long as he can rehear before certifying, or he has the authority to rehear before certifying, then that's sufficient.

[00:35:31] Speaker 02:
And here he does have the authority to rehear before certifying.

[00:35:40] Speaker 02:
It's also shown by the remedies that the Supreme Court crafted in our threats.

[00:35:45] Speaker 02:
You know, second 318B still says shall, but the Supreme Court held that it was sufficient so long as the director had the opportunity to rehear.

[00:35:53] Speaker 02:
That was sufficient to render the administrative patent judges

[00:35:56] Speaker 02:
to be inferior officers, and the same is true here.

[00:36:00] Speaker 02:
Whether or not Section 1 of 9.2 says shall, the director has the authority to rehear before issuing a cancellation, and that renders the administrative trademark judge as inferior officers.

[00:36:14] Speaker 04:
Anything further from the panel?

[00:36:17] Speaker 04:
Have we managed to get Mr. Stryker yet?

[00:36:22] Speaker 04:
I guess he appears to have rejoined the call, and I'll unmute him.

[00:36:25] Speaker 04:
Great.

[00:36:26] Speaker 04:
Great.

[00:36:26] Speaker 04:
Okay.

[00:36:27] Speaker 04:
And Mr. Stevenson, will we store four minutes of rebuttal if you need it?

[00:36:33] Speaker 00:
Yeah, I would like to make a few comments.

[00:36:34] Speaker 00:
Thank you.

[00:36:35] Speaker 00:
Sure.

[00:36:38] Speaker 00:
I do have just a couple of comments.

[00:36:40] Speaker 00:
I'll deal with responses to Ms.

[00:36:43] Speaker 00:
Utrecht first.

[00:36:45] Speaker 00:
The case that was cited in the government's brief actually says the power to reconsider, not to rehear.

[00:36:50] Speaker 00:
Rehearing is a specific form of reconsideration, but not the exclusive form of reconsideration.

[00:36:56] Speaker 00:
So just because the government has the ability to reconsider something does not mean they are required to give the litigants an opportunity to be heard, conduct supplemental briefing, or establish a way for the litigants to actually get to the director.

[00:37:12] Speaker 00:
Now this is relevant because, as mentioned in our brief,

[00:37:15] Speaker 00:
since Arthrex, a specific way to petition the director after a PTAP decision has been established for the PTAP, for PTAP IPR proceedings, that has not been done for trademark judges, for decisions from the PTAP.

[00:37:30] Speaker 00:
So there is no way for a, currently no way for a litigant to ask the director to reconsider or to hear a decision, any decision from the administrative trademark judges at all.

[00:37:44] Speaker 00:
My request would simply be to not let the office off the hook.

[00:37:49] Speaker 00:
Make them follow the same process for trademarks that they do for patents and provide an actual mechanism to do that.

[00:37:55] Speaker 00:
Now the challenge we have providing that mechanism is there's a vacuum.

[00:37:59] Speaker 00:
There is no statute to disregard in this case.

[00:38:01] Speaker 00:
There's no statute to modify.

[00:38:03] Speaker 00:
There's no rehearing statute at all.

[00:38:05] Speaker 00:
And our government is a government of limited powers.

[00:38:08] Speaker 00:
And agencies have only the power that Congress grants them to do things.

[00:38:13] Speaker 00:
So Congress has to give power

[00:38:15] Speaker 00:
to conduct a rehearing, in my opinion, to the agency for it to conduct a rehearing as a specific form of reconsideration.

[00:38:22] Speaker 00:
I think an agency always has the ability to change its mind, but to interpret that, that they automatically are going to assume that they have to give a rehearing, I think is giving them too much credit.

[00:38:35] Speaker 00:
An agency typically is not going, is going to want to do as little work as possible and may not provide adequate due process, and that due process issue

[00:38:44] Speaker 00:
of being able to get to the director is what creates this appointment clause issue.

[00:38:49] Speaker 00:
To Mr. Stryker's testimony, I think the intent issue is important.

[00:38:57] Speaker 00:
I think it's important in this case because Mr. Tribitz adopted this mark.

[00:39:01] Speaker 00:
He filed this application for the mark Sheedmare specifically for pianos because he believed at the time that Kawai and Ibok and all the other people who had stenciled made Sheedmare pianos.

[00:39:12] Speaker 00:
had abandoned the mark.

[00:39:13] Speaker 00:
They no longer were making them.

[00:39:15] Speaker 00:
And in fact, the issue came up during prosecution of the trademark.

[00:39:18] Speaker 00:
The prosecution history contains internet printouts that date as late as 2004 that show that as of that date, Rude Eboxone, which was the company who believed they had the right to make sheetmear pianos, continued to make sheetmear pianos.

[00:39:38] Speaker 06:
I'm sorry.

[00:39:39] Speaker 06:
What year was that, did you say?

[00:39:41] Speaker 00:
2004.

[00:39:41] Speaker 00:
As I was examining that, you can find that on Appendix 0923.

[00:39:50] Speaker 00:
This is from the actual file history of the trademark application that matured into the registration issue.

[00:39:59] Speaker 00:
The problem that we have with the evidence, and what I would rebut, Mr. Stryker said we produce no evidence to try to rebut the internet.

[00:40:05] Speaker 06:
Was the evidence that you're citing, was that one of the internet

[00:40:10] Speaker 06:
Documents?

[00:40:13] Speaker 00:
It's one of the internet documents that's in the file history of the originally filed application for Sheedmare.

[00:40:18] Speaker 06:
Right, but those were the documents that the board said were inadmissible for their truth.

[00:40:23] Speaker 06:
The truth being whether or not they were still selling those pianos.

[00:40:27] Speaker 00:
They said they were inadmissible for their truth, but what the board, the error the board made was that they applied a double standard in reviewing that evidence versus Sheedmare's evidence.

[00:40:37] Speaker 06:
I don't understand why that's a double standard.

[00:40:41] Speaker 06:
The purpose for which they accepted the Shiedmeier evidence was to show that there was familiarity in the market with the Shiedmeier mark, not that a particular company was doing a particular thing, i.e.

[00:40:55] Speaker 06:
selling pianos under that mark.

[00:40:58] Speaker 06:
That seems like a dramatic difference to me for hearsay purposes.

[00:41:02] Speaker 00:
The main issue we have is we're not submitting it for the truth of the matter asserted, but whether the Pierce Piano Atlas and this other internet evidence in the file history is teaching the truth, the issue is what is it teaching?

[00:41:14] Speaker 00:
It needs to be considered for what it teaches on its face.

[00:41:17] Speaker 06:
But if it's not true, if we're not considering it for its truth, then why is it relevant?

[00:41:24] Speaker 00:
It's only relevant if it's true, right?

[00:41:27] Speaker 00:
Well, it is relevant to establish whether it appears that other people had rights to the mark.

[00:41:33] Speaker 00:
And the problem with considering evidence 10 years after registration versus considering evidence three years before is that more likely than not your evidence three years before is more accurate than your evidence from 10 years later.

[00:41:48] Speaker 00:
The internet just gets rewritten every day by what people put up.

[00:41:52] Speaker 00:
And so what is more probative

[00:41:55] Speaker 00:
of the same at the time is evidence, the closest evidence to the time.

[00:42:00] Speaker 00:
That is our position on the internet evidence.

[00:42:05] Speaker 00:
Are there further questions for me?

[00:42:06] Speaker 00:
Because I know my time has expired.

[00:42:08] Speaker 04:
I'm not hearing any.

[00:42:10] Speaker 04:
Colleagues, hearing none, thank you.

[00:42:12] Speaker 04:
We thank all parties.

[00:42:14] Speaker 04:
And the case is submitted.

[00:42:15] Speaker 04:
That concludes our proceedings for this afternoon.