[00:00:00] Speaker 04: on SACCO Products versus ThreadGroup. [00:00:03] Speaker 04: Mr. Weiss, whenever you're ready. [00:00:05] Speaker 05: Yes. [00:00:06] Speaker 05: Philip Weiss of Weiss & Weiss on behalf of SACCO Products Inc. [00:00:10] Speaker 05: Appellant. [00:00:11] Speaker 05: May it please the court? [00:00:16] Speaker 05: Please proceed. [00:00:17] Speaker 05: Thank you. [00:00:20] Speaker 05: There are several issues in this case. [00:00:22] Speaker 05: One of the main issues is the date of first use for ThreadGroup's thread mark. [00:00:28] Speaker 05: They've listed the date of first use as July 15, 2014, which cannot be the correct date. [00:00:34] Speaker 05: Thread Group verified this as their date of first use and provided their interrogatory answers. [00:00:40] Speaker 05: They've only stated that it could be any other date in their trial brief. [00:00:49] Speaker 05: Applicant is required to set forth their actual data first use. [00:00:53] Speaker 05: They are charged with knowing what signing and failing to make appropriate inquiry is reckless disregard for the truth, citing standard knitting limited. [00:01:01] Speaker 05: Threat group chose of data first use knowing could not be the first data first use. [00:01:06] Speaker 02: What about the insurance extension request? [00:01:09] Speaker 05: Okay. [00:01:09] Speaker 05: The issue there is two parts to that. [00:01:11] Speaker 05: One part is they first asserted this new insurance request [00:01:16] Speaker 05: in the trial brief. [00:01:17] Speaker 05: They've always stated that the July 15, 2014 date was the date of first use. [00:01:22] Speaker 05: Under Levi Strauss, you cannot present a new date in the trial brief. [00:01:26] Speaker 05: The ITUF cannot. [00:01:29] Speaker 05: That's number one. [00:01:31] Speaker 05: Number two, well, also on Levi Strauss, okay. [00:01:40] Speaker 05: Under 37 CFR 2.173, a registration owner must submit verified request specifying amendment and if it's involved in the interparties proceeding for the TTAE-AB, a motion must be filed. [00:01:55] Speaker 05: Threat group did never file the motion and they raised this argument in their trial brief. [00:01:59] Speaker 05: That's number one. [00:02:01] Speaker 05: Number two in response to your question, [00:02:04] Speaker 05: The original applications were owned by Google, not Threadgroup. [00:02:09] Speaker 05: Under 1060, you cannot assign an ITU application until it's been registered. [00:02:19] Speaker 05: Here in this particular case, they filed the Statement of Use in October with the insurance. [00:02:28] Speaker 05: In December of that year, they filed the [00:02:31] Speaker 05: They file the assignment to assign the mark from Google to Thread Group. [00:02:40] Speaker 05: In doing so, you cannot now say, extend it to May, where it would again have been. [00:02:46] Speaker 05: If you extend it to May, it's an application, not a registered mark. [00:02:50] Speaker 05: And if you assign that ITU past that date, you violate 1060 and Section 10 of the Lanham Act. [00:03:01] Speaker 04: Well, Mr. Weiss, this is Judge Prost. [00:03:04] Speaker 04: Just going back to before we get to that second point you were raising, I don't understand why you couldn't have been shown as of October 30th, 2015. [00:03:17] Speaker 04: And that was even before any insurance extension comes into play. [00:03:21] Speaker 04: And if that's so, why aren't the white papers, which were available to the public on the website in mid-July 2015, sufficient to show use during the relevant period? [00:03:33] Speaker 05: Because the white papers are purely for promotion. [00:03:39] Speaker 05: First of all, what you have to understand is, and the argument that the board put out was, [00:03:46] Speaker 05: Assuming that this was an educational tool, which I don't agree with, and it's in the papers, that the services, the computer services, namely providing an Internet site, featuring technology, facilitating wired and wireless communication among electronic and computer devices. [00:04:03] Speaker 05: But even putting so, if this was an education tool, this is purely for the benefit of Threadgroup. [00:04:12] Speaker 05: There is no, the argument that [00:04:14] Speaker 05: the education with regards to Thread Group is beneficial to the public. [00:04:20] Speaker 05: It makes no sense whatsoever. [00:04:22] Speaker 01: What about the fact that it was available on the website and was downloaded 200 times? [00:04:31] Speaker 05: It was not downloaded 200 times. [00:04:32] Speaker 05: It may have been downloaded 200 times by the original members. [00:04:38] Speaker 05: Here's the question. [00:04:40] Speaker 05: What was downloaded and was it usable? [00:04:44] Speaker 05: And the question there is the only, what you're talking about is the specification. [00:04:48] Speaker 05: The specification which was actually sold with the product, with specification 1.1.1, that was the one that was actually submitted with the Ericsson trial testimony. [00:04:59] Speaker 05: Okay? [00:05:00] Speaker 02: So what date, what date do you think it was first used in Congress? [00:05:04] Speaker 05: February, I'll give you the exact date, hold on. [00:05:07] Speaker 05: It's February 2017. [00:05:12] Speaker 04: Can I follow up on Judge O'Malley's previous question, which is if it was on the website, why was it not available to the public? [00:05:21] Speaker 05: Wait, what part are you saying was on the Web? [00:05:25] Speaker 05: Are you talking about... The White Papers available mid-July 2015. [00:05:32] Speaker 05: The White Papers were only for promotion. [00:05:34] Speaker 05: If you look at the deposition testimony of Ms. [00:05:36] Speaker 05: Natick and Mr. Kamlani, they both stated that the Web site was a promotional tool, and they admitted that ThreadGroup did not render services on the Web site, okay? [00:05:49] Speaker 05: But even assuming that, [00:05:51] Speaker 05: there were white papers. [00:05:53] Speaker 05: The white papers, all they were was discussing thread group and what thread group could do in the future. [00:06:00] Speaker 05: According to 15 U.S.C. [00:06:03] Speaker 05: 1127, you have to render services for the benefit of another. [00:06:09] Speaker 03: I just want to make sure I understand your position. [00:06:13] Speaker 03: Your position, I think, is that because the white paper didn't have a complete protocol, [00:06:19] Speaker 03: or in was more of a promotional nature or talking about what was going to be happening in the future, that cannot be considered something that's featuring technology facilitating wired and wireless communication among electronic and computer devices. [00:06:35] Speaker 03: Is that your position? [00:06:36] Speaker 05: Yes, and also it wasn't for the benefit of others. [00:06:40] Speaker 03: The question is... Well, if you say it wasn't for the benefit of others, you're saying that because only the members of the Thread Group saw this website, that can't constitute a use in commerce? [00:06:52] Speaker 03: Is that what you're saying? [00:06:53] Speaker 05: No, my question there is, from what I understand, the services have to be... You have to be providing services outside of Thread Group, outside of the seven original members. [00:07:06] Speaker 03: And here, you're not providing... Why is that? [00:07:10] Speaker 05: because that's under ACOC, under Lions. [00:07:17] Speaker 05: I mean, Lions says you can't publish for future plans, not use in commerce. [00:07:23] Speaker 05: I mean, there was no service being provided prior to February 2017. [00:07:28] Speaker 05: I mean, for Thread Group to say, here's what Thread Group is about, is not a service to announce to anyone in the public. [00:07:38] Speaker 05: I mean, that's a service for Thread Group. [00:07:40] Speaker 05: That's basically, you're extolling the virtues of ThreadGroup and or what it's going to provide in the future. [00:07:47] Speaker 05: To me, that's not a service. [00:07:49] Speaker 03: Who is the trademark holder here? [00:07:53] Speaker 05: Originally, it was Google, and then they assigned the rights once the application registered to ThreadGroup. [00:08:02] Speaker 02: Okay. [00:08:03] Speaker 02: All right, so are you saying that nothing before February 2017, I mean, [00:08:08] Speaker 02: You know, even if you didn't go all the way back to July 13, 2015, in October 2015, you've got white papers. [00:08:16] Speaker 02: In January of 2016, there's version 1.01. [00:08:22] Speaker 02: And then in July 2016, there's 1.10. [00:08:25] Speaker 02: I don't know why you jump all the way to the final version before you think anything's useful. [00:08:32] Speaker 05: Because no product was sold with those other versions. [00:08:35] Speaker 05: There was no service. [00:08:37] Speaker 05: It has to be a service for a service. [00:08:39] Speaker 05: And there was no service because there were no goods being sold. [00:08:42] Speaker 05: The first time any good was sold in association with the specification was February 2017. [00:08:48] Speaker 05: That's unequivocal. [00:08:51] Speaker 05: And so these other ones were just drafts. [00:08:54] Speaker 05: And even the one in July 2015 was a draft that went to the other members to comment on which wasn't then available. [00:09:02] Speaker 05: That was only internal, the July 2015. [00:09:04] Speaker 05: It wasn't given to... Good. [00:09:07] Speaker 03: What about the board's reliance on, you know, that there doesn't have to be a sale. [00:09:12] Speaker 03: You know, even non-profits are entitled to registration of trademarks. [00:09:17] Speaker 05: Right, but again, I understand about the sale, but these were all just drafts. [00:09:22] Speaker 05: They had no relation to any goods being sold in the future. [00:09:26] Speaker 05: These are all for goods and their services to be provided in the future. [00:09:31] Speaker 05: And there was nothing being sold or any services being provided before February 2017. [00:09:36] Speaker 03: So their view is that even if there's something that's, you know, a mark that's being used to advertise something that's being developed, it never can be registered until the ultimate product is developed and sold. [00:09:51] Speaker 05: Well, according to Putre v. Platam, held at the cancellation of a mark where no services were rendered despite website services being offered, the mark was canceled. [00:10:05] Speaker 03: But don't you think we need to look at what the service is that's being described in the use of the mark and the registration? [00:10:11] Speaker 03: Isn't that what's critically important here? [00:10:13] Speaker 03: I mean, what the service is, is providing the website. [00:10:19] Speaker 05: Well, that's what was found by the CTAB. [00:10:22] Speaker 05: I don't believe in reading what the actual service is that in going back to what we were stating. [00:10:30] Speaker 05: In Ray, Dr. Pepper held that promotional activities for one's own business are not services within the meaning of the Act. [00:10:37] Speaker 05: Ordinary or routine promotional activities of one's own goods do not constitute a registrable service. [00:10:43] Speaker 05: And then Allard Enterprises v. Advanced Program Resources states, using commerce requires a genuine commercial transaction. [00:10:51] Speaker 05: So that addresses what we were discussing before. [00:10:55] Speaker 05: I just wanted to get to one more thing, unless you guys have questions. [00:11:01] Speaker 04: Hearing none, go ahead. [00:11:02] Speaker 05: Okay, so the second part besides... Oh, so I think no matter what, the date that was stated of July 2014 just falls, okay? [00:11:15] Speaker 05: Their membership didn't even open until October 2014. [00:11:17] Speaker 05: So I think that alone should discredit that. [00:11:21] Speaker 05: There is no other date being put forth, even the TTAB stated [00:11:26] Speaker 05: You know, there is a date somewhere between then and the insurance, but there was no date provided and the appellees did not provide one. [00:11:36] Speaker 05: Now on the other count is the implied license. [00:11:41] Speaker 05: That's the other part I wanted to get to quickly. [00:11:44] Speaker 05: There shouldn't be no implied license here. [00:11:47] Speaker 05: Google did not control thread groups. [00:11:49] Speaker 05: Thread Group made several arguments that Google's on the board, so therefore they had control of the Web site. [00:11:55] Speaker 05: That's totally untrue. [00:11:57] Speaker 05: Under the bylaws, et cetera, each board member had one of seven votes. [00:12:06] Speaker 05: So no one member could control what was being done on the Web site, marketing, et cetera. [00:12:14] Speaker 05: I mean, Nest was the board member. [00:12:16] Speaker 05: But assuming that, you know, the vote of Nest transferred to Google, Google had only one of seven votes. [00:12:23] Speaker 05: And therefore, they could not control or had no control over what was on the Web site. [00:12:29] Speaker 05: It was Thread Group's Web site. [00:12:31] Speaker 05: Google had no control of it. [00:12:32] Speaker 05: And therefore, Thread Group's use did not ignore to the benefit of Google. [00:12:37] Speaker 05: And therefore, any use that was done does not apply here. [00:12:44] Speaker 05: Should I keep going? [00:12:46] Speaker 05: I don't want to lose my reply. [00:12:50] Speaker 04: I think you're almost there. [00:12:51] Speaker 04: So why don't we turn to Mr. Coleman. [00:12:54] Speaker 00: Okay. [00:12:59] Speaker 00: Hello, Your Honor. [00:13:00] Speaker 00: Smith leads the court. [00:13:01] Speaker 00: My name is Nick Coleman for Thread Group, Inc. [00:13:04] Speaker 00: I think as an initial matter, [00:13:08] Speaker 00: To the best of our knowledge, non-use has not explicitly been designated by this court as a question of law or fact, but the question of abandonment has been determined to be a question of fact, be reviewed under the substantial evidence standard. [00:13:22] Speaker 00: We submit that the same standards should apply here given that the evaluation is the same in terms of determining whether the relevant party's actions constitute use in commerce at the relevant time. [00:13:34] Speaker 00: But the only difference being whether or not there was previous use in the case of abandonment or no previous use in the context of non-use. [00:13:43] Speaker 00: With that in mind, unless the court has any specific questions, I believe there are three issues that I think are determinative of this case. [00:13:51] Speaker 00: The first this court began addressing earlier is did the board correctly determine the scope of services of the 626 registration and determine that [00:14:02] Speaker 00: thread group's actions did fall within that scope. [00:14:07] Speaker 00: The board looked at a number of definitions presented by both parties. [00:14:13] Speaker 00: We estimate that the most important of those is the definition of the word feature, which is where the board was able to come to its conclusion about what the proper scope of those services is. [00:14:24] Speaker 00: The definition of record, which was not objected to by SATCO, included that featuring may mean to outline, to depict, [00:14:32] Speaker 00: to delineate the main characteristics of or to give prominence to. [00:14:36] Speaker 00: So if the board could properly find that thread groups actions were providing an internet site, outlining technology, facilitating wireless communication, depicting that technology, delineating the main characteristics of that technology or giving prominence to that technology, [00:14:54] Speaker 00: then the board could accurately say that Thread Group's actions do fall within the scope of the properly construed services of the 626 registration. [00:15:05] Speaker 00: Now, one of the things that SATCO has been trying to argue is that these actions by Thread Group were purely promotional in nature, but it's important to understand the nature of the Thread Group to understand what that really means. [00:15:19] Speaker 00: Because the Thread Group is a membership organization, and as SATCO admitted, [00:15:25] Speaker 00: Thread Group does not provide any goods themselves, rather Thread Group's member companies are the entities that provide goods. [00:15:35] Speaker 00: The informational and advocacy services that the board found that were part of the content of the Thread Group website were for the benefit of others. [00:15:47] Speaker 00: The board specifically noted that the Thread Group website promoted public awareness of the Thread protocol and technology. [00:15:54] Speaker 00: Educated the public on capabilities, benefits, and uses of the Thread technology. [00:16:00] Speaker 00: Educated the public on the integration and interoperability of third-party products that use the technology. [00:16:06] Speaker 00: And perhaps most importantly, as we noted, since it's the Thread Group member companies that provide the goods that incorporate the Thread technology, the Thread Group's actions raised awareness and therefore created a market for those member company products. [00:16:23] Speaker 00: very clearly those services are for others, namely for the public at large and for the member companies to create a market for their products. [00:16:39] Speaker 03: the only members, only members of Thread Group were able to see the website. [00:16:45] Speaker 03: The public wasn't able to see it. [00:16:47] Speaker 03: So could you explain a little bit more your position that it was for the benefit of the public, like in response to the argument made earlier in this argument by your opposing counsel? [00:16:59] Speaker 00: Sure, Your Honor. [00:17:00] Speaker 00: The original website is of record here at Appendix Pages 941 to 952. [00:17:08] Speaker 00: it was completely available to the public and Your Honors can look at the content of that website and see it on its face provided those services because it did give prominence to the Thread technology. [00:17:21] Speaker 00: It did delineate the main characteristics of the Thread technology. [00:17:24] Speaker 00: It did depict and outline the Thread technology. [00:17:27] Speaker 00: So it specifically did constitute those services. [00:17:31] Speaker 00: I believe what [00:17:33] Speaker 00: Council for Satco is trying to allege is that there were certain aspects of the website that were available only to certain points in time. [00:17:43] Speaker 00: Some of the documents that were provided via the members portal were non-public and available only to member companies. [00:17:50] Speaker 00: And up to a point that's still well within the Embarcadero period, the thread specification was originally only available to members as well. [00:17:59] Speaker 00: But again, during the Embark to Arrow period, it did become available to the public as well. [00:18:05] Speaker 00: So it's not clear to me exactly what content that did constitute the services of the 626 registration wasn't available to the public. [00:18:15] Speaker 00: It was a publicly accessible website. [00:18:21] Speaker 00: Moving on to the second point is that, [00:18:24] Speaker 00: This court should determine whether or not the board correctly determined that the deadline for filing the Statement of Use as extended, namely May of 2016, was the correct date by which SATCO bore the burden of proving non-use. [00:18:39] Speaker 00: The board's decision was pretty straightforward. [00:18:41] Speaker 00: It based the decision on its own Embarcadero case, which very clearly outlines the reasoning behind. [00:18:49] Speaker 00: in the context of a non-use case, giving that insurance extension availability as well. [00:18:56] Speaker 00: And that's important for a couple of reasons. [00:18:59] Speaker 00: First of all, because SATCO did not show non-use through the entire Embarcadero period. [00:19:07] Speaker 00: But secondly, it provides a very clear way for this court to resolve all issues. [00:19:12] Speaker 00: As the court noted, there was an assignment from Google to Threadgroup in December of 2015. [00:19:18] Speaker 00: And therefore, from December of 2015 through May of 2016, ThreadGroup was both the owner and the user of the mark. [00:19:26] Speaker 00: So any sort of analysis related to whether or not ThreadGroup's use in order to Google's benefit in that time period is irrelevant because there was no need for ThreadGroup's use in order to any other party's benefit. [00:19:39] Speaker 00: Of course, the board did look into that and did find that, yes, there was adequate use [00:19:46] Speaker 00: by a thread group inuring to Google's benefit by way of that implied license. [00:19:51] Speaker 00: I think it's important maybe to recognize why that question of an implied license was important in the first place. [00:19:58] Speaker 00: And that's because the Lanham Act specifically defines a related company as any person whose use of a mark is controlled by the owner with respect to the nature and quality of goods or services and notes that use by a related company does inure to the benefit of the registrant or the applicant. [00:20:15] Speaker 00: So if there was this implied license, if Google did have sufficient control over ThreadGroup's actions, then yes, ThreadGroup's service, excuse me, services provided in association with the website did in order to Google's benefit. [00:20:30] Speaker 00: The board specifically found a number of ways in which that was the case, specifically noting that Nest and then Google, the acquisition of Nest was a founding member of the JSA, which was the precursor to the ThreadGroup, [00:20:44] Speaker 00: and eventually was a sponsor-level board member of the Thread Group, Google always provided the president of the Thread Group, Google, as a board member of the Thread Group, approved all website content, and that Google had constant input, control, and oversight of the website. [00:21:03] Speaker 00: Now, as we noted before, this is something to be evaluated under the substantial evidence standard. [00:21:09] Speaker 00: We would submit that the evidence and record [00:21:12] Speaker 00: definitely supports the board's conclusion, and especially the factors specifically stated by the board. [00:21:20] Speaker 00: But beyond those, there's quite a bit of additional evidence that supports the exact same conclusion, including that Google provided its own vice president, Vince Cerf, as both an advisor and contributor to the Thread Group website, that Google kept internal tabs of Thread Group activities [00:21:40] Speaker 00: Mr. Grant Erickson testified that prior to his becoming president of the Thread Group, while he was only a Google employee, he received internal updates as to Thread Group's activities. [00:21:52] Speaker 00: In addition, there's evidence that Google's Trademark Council cooperated with Thread Group's Trademark Council throughout the prosecution of these relevant applications. [00:22:03] Speaker 00: Importantly, including at the time of filing the statement of use, Thread Group provided to [00:22:09] Speaker 00: Google's Trademark Council an example, a specimen of the website at that time, giving Google every opportunity to inspect exactly those services provided on that website. [00:22:22] Speaker 00: There was no indication that Google had any sort of issues with that. [00:22:25] Speaker 00: So again, the reason this is important is because the question to be determined is was there sufficient quality control over the nature, excuse me, sufficient control over the nature and quality of the services offered by ThreadGroup. [00:22:39] Speaker 00: This court and other courts have noted a number of factors that go towards that determination, including the close working relationship between the parties, reasonable reliance on party standards and procedures to ensure consistent quality, and any evidence of actual decline in quality. [00:22:56] Speaker 00: All of those points that we noted that the board specifically noted and that are also of evidence outside of the board's specific statements go to that close working relationship between the parties. [00:23:07] Speaker 00: But the other factors also lay in favor of there being sufficient control. [00:23:11] Speaker 00: For example, reasonable reliance on a party's standards and procedures. [00:23:15] Speaker 00: As Satco has noted, it was the Thread Group Board of Directors who ultimately controlled the nature and the content of the website. [00:23:27] Speaker 00: That Board of Directors is made up of representatives of the various member companies of the Thread Group. [00:23:33] Speaker 00: And as we noted, [00:23:34] Speaker 00: the thread group activities in association with this website directly benefit each of those member companies because they create a market for those member companies' products that will incorporate the thread mark by creating that market awareness. [00:23:49] Speaker 00: So Google could easily and reasonably rely on each of the board members to maintain a high quality of services associated with the website because it directly benefited each of those member companies. [00:24:03] Speaker 00: In addition, there's no evidence of record that there was any actual decline in quality of the services associated with the website. [00:24:11] Speaker 00: And in fact, Ms. [00:24:12] Speaker 00: Neidig, who was the vice president of Threat Group and in charge of marketing, indicated at multiple points in her testimony that the content of the website remained generally consistent throughout the lifespan of the website. [00:24:28] Speaker 00: And that can be seen in the two different examples of the website of record. [00:24:34] Speaker 00: that each of those examples do all of those featuring aspects. [00:24:38] Speaker 00: They give prominence to thread, they delineate the main characteristics of thread, they depict thread, and they outline thread technology. [00:24:47] Speaker 00: Now, another thing that SATCO has tried to make an issue about is, was the board correct in determining this parent subsidiary relationship between Google and Nest? [00:24:59] Speaker 00: I would suggest, first of all, that that is only one [00:25:02] Speaker 00: factor in the overall close working relationship between Google and Thread Group, which are the two parties that the analysis really should concentrate on. [00:25:12] Speaker 00: But regardless of whether Google and Nest were parent subsidiary or peer companies, as Satco has alleged, the Thread Group's bylaws itself define an affiliate as including both of those conditions, both parent subs and peer companies under common control. [00:25:32] Speaker 00: And the reason that's important is because the bylaws also define a member and its affiliates as a single member of the thread group. [00:25:41] Speaker 00: So regardless of Satco's arguments regarding the relationship between Google and Nest, by thread group's own bylaws, Google is a member of the thread group. [00:25:52] Speaker 00: That's supported by direct testimony from Mr. Erickson, who testified that he represented Google in his role as president of thread group, [00:26:00] Speaker 00: by Mr. Comelani, who stated that Google is a member of the Board of Directors, and Ms. [00:26:05] Speaker 00: Neidig, who testified that Google is a member of Threat Group. [00:26:09] Speaker 00: So we would suggest that while the evidence is, the evidence of record does support the board's conclusion that Google was a parent of NEST by way of testimony from Mr. Erickson, Ms. [00:26:24] Speaker 00: Neidig, Mr. Comelani, and Ms. [00:26:26] Speaker 00: Roosey Kelly all stating that [00:26:28] Speaker 00: at separate times that Google acquired Nest and Google owns Nest. [00:26:34] Speaker 00: While that does support the board's conclusion that Google was the parent company of Nest, it's really not determinative of the ultimate decision of whether the red group's actions with respect to the website in order to Google's benefit. [00:26:51] Speaker 00: One final issue, as I know I'm getting close to time, is that [00:26:55] Speaker 00: CETCO's council tries to allege that ThreadGroup is attempting to allege a new data first use or change the data first use that was stated on the statement of use. [00:27:07] Speaker 00: That's not what's happening here. [00:27:09] Speaker 00: What ThreadGroup has done is said that in the context of a non-use claim for an intent to use application, the board has explicitly stated that the deadline for filing the statement of use [00:27:21] Speaker 00: is the date by which the challenger bears the burden of proving that non-use. [00:27:26] Speaker 00: We're not explicitly saying anything about changing the dates of first use and, in fact, we maintain that that original website did include all of those facilitating actions with respect to, excuse me, featuring actions with respect to the informational and advocacy services. [00:27:44] Speaker 00: But regardless, that is not an important, that's not the important date in terms of deciding whether or not there was non-use here. [00:27:52] Speaker 00: In the context of non-use, it's the deadline for filing a statement of use as extended that's that co-born the burden of proving. [00:28:02] Speaker 04: Perfect timing. [00:28:03] Speaker 00: Thank you. [00:28:04] Speaker 00: If the board has any other questions, I'd be glad to answer them. [00:28:07] Speaker 00: Otherwise, we're good. [00:28:08] Speaker 04: No worries, but Mr. Weiss. [00:28:11] Speaker 05: Okay. [00:28:11] Speaker 05: So I want to address the arguments that were just made by Mr. Coleman. [00:28:15] Speaker 05: First of all, he made an argument that, you know, with regards to what the services provided, that Thread Group is a membership organization. [00:28:23] Speaker 05: The issue there was Thread Group didn't file the application. [00:28:26] Speaker 05: First, it was filed by NEST, which was intended on an ecosystem for first and third party products working together. [00:28:34] Speaker 05: Second, that was then assigned to Google. [00:28:36] Speaker 05: okay, who's an actual company, not a membership organization. [00:28:40] Speaker 05: So when looking what the services are, you don't look to what that thread group was a membership organization. [00:28:46] Speaker 05: You have to look to what Nest and Google were because they were the ones who filed, you know, Nest filed the application, Google took it over. [00:28:53] Speaker 05: That's number one. [00:28:55] Speaker 05: Number two, again, going back to the deadline extended, if they, there's no doubt that July 15, 2014 date is not a data first use. [00:29:06] Speaker 05: They didn't have any, the membership was not open until October 2014. [00:29:09] Speaker 05: They didn't provide a service and they didn't provide any service for the benefit of another. [00:29:16] Speaker 05: So that July 15, 2014 date goes out the window. [00:29:20] Speaker 05: The only issue there is they then, first time in their trial brief said, oh, if that date doesn't work, let's extend it to May. [00:29:29] Speaker 05: Again, not even saying what date it would have been. [00:29:32] Speaker 05: The issue there again is, [00:29:34] Speaker 05: The law specifically states that under 37 CFR 2.173, the registration owner must submit a verified request specifying the amendment and if it's involved in an inter-party proceeding for the TTAB, a motion must be filed. [00:29:53] Speaker 05: No such motion was filed. [00:29:55] Speaker 05: So if Mr. Coleman wants to rely on that first date, that first date [00:30:03] Speaker 05: There is no... You know, we've submitted more than sufficient and substantial evidence to show that first date doesn't work. [00:30:10] Speaker 05: If he... The second part is he didn't file anything to amend that date. [00:30:17] Speaker 05: Okay. [00:30:18] Speaker 05: And then his last argument about Google providing this to surf, even if he was an advisor, he had no control of the website. [00:30:25] Speaker 05: So that... Sorry. [00:30:28] Speaker 05: Unless you have any questions. [00:30:30] Speaker 05: Okay. [00:30:31] Speaker 05: Can I finish my thought? [00:30:33] Speaker 05: Yes. [00:30:33] Speaker 05: Thank you. [00:30:34] Speaker 05: What I was saying there is Mr. Surf was at best, according to Mr. Coleman, was an advisor and he had no control of the website. [00:30:42] Speaker 05: Thank you. [00:30:43] Speaker 04: Thank you. [00:30:44] Speaker 04: We thank both sides and the case is submitted. [00:30:46] Speaker 04: That concludes our proceedings for this morning. [00:30:49] Speaker 05: Thank you very much. [00:30:50] Speaker 04: The Honorable Court is adjourned from day to day.