[00:00:01] Speaker 02:
We will hear argument next in number 211575, Sky International against Sky Cinemas.

[00:00:10] Speaker 02:
Ms.

[00:00:11] Speaker 02:
Lesser?

[00:00:22] Speaker 02:
Please begin when you're ready.

[00:00:23] Speaker 03:
Good morning, your honors.

[00:00:24] Speaker 03:
May it please the court?

[00:00:26] Speaker 03:
There are two fairly simple issues here.

[00:00:28] Speaker 03:
First, as a fundamental error, the board bifurcated the opposition from the cancellation without notice or an opportunity to be heard or without basis as well.

[00:00:40] Speaker 03:
which is improper under the Administrative Procedure Act and because of the bifurcation the board did not consider record evidence of the DuPont factors in the opposition including the registrations that were subject to the cancellation and in particular the 128 registration for Sky News.

[00:00:57] Speaker 04:
Council, I thought that the board didn't consider the 128 registration because it thought other registrations were more similar not because of some bifurcation.

[00:01:08] Speaker 03:
I'm your honor the mark the Sky News registration the 128 registration was also for Sky News and it was in a simple stylization.

[00:01:17] Speaker 03:
The real difference there was that the goods and services were far broader than the two registrations that did consider and that the mark was subject.

[00:01:26] Speaker 04:
I understand your point.

[00:01:27] Speaker 04:
I just I'm not understanding your bifurcation point to be honest and I think maybe your point is that the board erred by not considering the 128

[00:01:38] Speaker 03:
or saying that the services they're in were not any more similar than other services but I'm not understanding your bifurcation your honor the board's decision specifically when it reviews the record and skies arguments it looks at the record as to the news reporting and

[00:01:58] Speaker 03:
registrations, which were the block letter registrations for Sky News.

[00:02:02] Speaker 03:
Those registrations had the word news disclaimed.

[00:02:06] Speaker 03:
The word sky is the dominant portion of the registration.

[00:02:09] Speaker 03:
The 128 registrations also had news disclaimed, and sky is the dominant part of the registration.

[00:02:16] Speaker 03:
There's nothing in the record that, as Your Honor has mentioned, that suggests why that registration would not be viewed.

[00:02:24] Speaker 01:
The board in fact says- Of course, the board did observe that the

[00:02:27] Speaker 01:
The 128 was not blocked letters, but was stylized.

[00:02:31] Speaker 03:
They are minimally stylized.

[00:02:33] Speaker 01:
There are other... The board seemed to attach some significance to that fact, as I understand the opinion.

[00:02:39] Speaker 03:
The board, in the board's decision, the board states that if it finds confusion with the block letter registrations, it needs not consider the other registrations.

[00:02:51] Speaker 03:
It actually, the board does not indicate anything about the stylized registration, except to say that the registration in block letters would be, because it's in block letters, is the broadest.

[00:03:06] Speaker 01:
Can I ask you a more basic question here that is confusing me?

[00:03:12] Speaker 01:
Which of the various versions of the 128 specification are we supposed to be looking at?

[00:03:20] Speaker 01:
Because there are several different versions.

[00:03:23] Speaker 01:
There's the July 2020 version, which appears on JA 32.

[00:03:29] Speaker 01:
There's the November version, which appears on JA 21.

[00:03:36] Speaker 01:
And then there's a version that now appears on the website, which is yet different again.

[00:03:45] Speaker 01:
Similar in most respects, but different in important respects.

[00:03:49] Speaker 01:
Which of these is the one that matters for the argument you're making today?

[00:03:54] Speaker 03:
Your Honor, you've raised the most fundamental point here.

[00:03:58] Speaker 03:
The one that matters today is the November one, because this case, instead of looking at

[00:04:05] Speaker 03:
what was determined in the cancellation.

[00:04:09] Speaker 03:
For example, in the Jack Wolfskin case, the board looked at both the cancellation and an opposition at the same time.

[00:04:18] Speaker 03:
The registrations are clearly intertwined.

[00:04:23] Speaker 03:
Now, to your honor's point,

[00:04:26] Speaker 03:
If the board, for example, in a patent case where you look at invalidity before you look at infringement, if the position there was that they wanted to look at the validity of the 128 registration, you look at that first.

[00:04:40] Speaker 03:
But instead of looking at that altogether,

[00:04:44] Speaker 03:
They disregarded the services in that registration.

[00:04:47] Speaker 01:
Let me bring you back to my fundamental issue here of which of these we're supposed to be looking at.

[00:04:55] Speaker 01:
What you are saying, I think, is that we can ignore the July specification.

[00:05:02] Speaker 01:
Is that correct?

[00:05:02] Speaker 01:
And we look at the November specification?

[00:05:05] Speaker 03:
We can certainly do that.

[00:05:07] Speaker 01:
All of the- We can or should?

[00:05:08] Speaker 03:
We should.

[00:05:09] Speaker 01:
We should.

[00:05:10] Speaker 01:
So anything that was said in the July specification is irrelevant to our current inquiry.

[00:05:17] Speaker 01:
Is that what you're saying?

[00:05:18] Speaker 03:
Your Honor, the services that withstood attack

[00:05:24] Speaker 03:
remained in the November decision.

[00:05:27] Speaker 01:
OK.

[00:05:27] Speaker 01:
Well, the one thing that raised my curiosity was, as you, I'm sure, are aware, there was a footnote to the July registration, footnote 10, which looked like it was making a change, which change does not make its way into the November registration.

[00:05:50] Speaker 01:
So I take it what you're saying is we can ignore that footnote.

[00:05:55] Speaker 03:
Yes or no?

[00:05:57] Speaker 03:
There were certain factual.

[00:05:59] Speaker 01:
I want to know whether we can ignore that footnote.

[00:06:02] Speaker 01:
Now you can explain.

[00:06:03] Speaker 01:
Yes.

[00:06:04] Speaker 01:
We can ignore it.

[00:06:05] Speaker 01:
Yes.

[00:06:05] Speaker 03:
So there were particular factual issues that came up.

[00:06:09] Speaker 03:
New grounds were asserted after Sky put in its case.

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There were abandonment claims that were raised, and an answer to those claims were submitted and served and filed after Sky put in its

[00:06:25] Speaker 03:
And based on that answer, Sky had admitted particular services being deleted and had deleted a couple of registrations as part of that.

[00:06:36] Speaker 03:
So what was before the board was actually a more limited list of services and a more limited list of marks when it was looking at the July, in its July opinion.

[00:06:51] Speaker 03:
The footnotes there refer to what was a fairly complicated procedure.

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The appellee was permitted to assert new claims after the institution of the trial period.

[00:07:10] Speaker 03:
And that actually created some confusion in the record.

[00:07:13] Speaker 03:
However, other than referring to,

[00:07:17] Speaker 03:
the deletion of those services because of the answer and because the record had essentially changed.

[00:07:25] Speaker 03:
There was no acknowledgement or analysis on the 128 registration at all in the July decision.

[00:07:36] Speaker 03:
This was prejudicial to Sky.

[00:07:38] Speaker 03:
The services in the 128 registration were far broader than the services in the two registrations that the board looked at.

[00:07:47] Speaker 04:
And in particular, you're relying on the language television programs films.

[00:07:51] Speaker 04:
Because I'm looking at the November specification for the 128 registration of page 821.

[00:07:57] Speaker 04:
Right.

[00:07:58] Speaker 04:
Is that what you're specifically relying on?

[00:08:00] Speaker 03:
Yes, production, Your Honor, production of motion pictures, streaming video content on demands,

[00:08:05] Speaker 03:
and distribution of, in addition to other language films.

[00:08:10] Speaker 03:
And I paraphrase, that would be in Appendix Volume 103.

[00:08:15] Speaker 03:
The board did not consider that registration at all, although those withstood attack.

[00:08:20] Speaker 03:
Had the board not bifurcated the proceeding, it would have had to, by necessity, acknowledge those goods and services and analyze that.

[00:08:30] Speaker 03:
Those goods and services are directly competitive and overlap with the Sky Cinema's services.

[00:08:40] Speaker 04:
What about the discussion in the board's opinion at page A-70, where they talk about whether the operation of movie theaters is a distinct departure from the services the opposers perform?

[00:08:52] Speaker 04:
And they talk about how, I wonder whether this discussion makes

[00:08:59] Speaker 04:
this whole argument somewhat irrelevant because here they're talking about comparing having a movie theater to actually just distributing movies.

[00:09:13] Speaker 03:
Your Honor, that is raised in the context of the natural zone of expansion argument, which I'll get to as well.

[00:09:20] Speaker 03:
However, the board, in looking at appendix volume 166, states, and I quote, the board, however, does not accord Sky International its argument that there's overlap holding instead.

[00:09:32] Speaker 03:
And I quote, again, we find no record evidence supporting that assertion.

[00:09:35] Speaker 03:
On this record, a poser has not met its burden to show that applicants movie theater services

[00:09:40] Speaker 03:
or are the same as or overlap with opposers news programming or reporting services.

[00:09:46] Speaker 03:
The board specifically refers to the news services only and not to any of the other services.

[00:09:52] Speaker 04:
Yeah, but if they don't think, if the board made a fact finding that there's no natural zone of expansion to go from a movie theater or to go from, I'm sorry, production and distribution of films to a movie theater

[00:10:10] Speaker 04:
Why do you think that they would consider the films and videos mentioned in Registration 128 would overlap with movie theaters?

[00:10:22] Speaker 03:
Well, Your Honor, the board doesn't even analyze that.

[00:10:27] Speaker 03:
New services in movie theaters, one may assume, are different.

[00:10:31] Speaker 03:
And looking at it with blinders, as to which we contend the board did, adds to simply new services.

[00:10:39] Speaker 03:
Perhaps there isn't an overlap.

[00:10:40] Speaker 03:
But the 128 registration covered goods that are overlapping.

[00:10:44] Speaker 03:
And under this court's precedent, those would be viewed more broadly.

[00:10:50] Speaker 03:
The language on the four corners of the registration of the 128 registration clearly encompasses distribution of movies.

[00:10:58] Speaker 03:
Distribution of movies can also be through movie theater services.

[00:11:03] Speaker 03:
The appellee also has stated that its services, its movie theater services, and I would like to remind

[00:11:12] Speaker 03:
the court that this is an intent to use application that the appellee filed, not a use-based application, but the record shows that those films were to be shown digitally.

[00:11:24] Speaker 04:
They said specifically they found that relevant consumers are unlikely to perceive the operation of a movie theater as being within the natural zone of expansion of streaming or film production services.

[00:11:38] Speaker 04:
Why doesn't that

[00:11:40] Speaker 03:
address you make it so the area you're serving is harmless your honor it's not harmless because if if they had acknowledged the 128 registration they could have not come to that conclusion also after the decision

[00:11:58] Speaker 03:
Because the 128 Registration specifically specifies distribution of film.

[00:12:07] Speaker 03:
It specifically specifies services that are overlapping and competitive with movie theaters.

[00:12:16] Speaker 04:
But you're assuming that distribution of film is overlapping and competitive with running movie theaters.

[00:12:24] Speaker 03:
Your Honor, and I'll move into the second point now, because the argument we made in the natural zone of expansion argument is that there is significant evidence of a natural zone of expansion, including two market studies from the movie industry that specifically reference the overlap between movie services and streaming services.

[00:12:51] Speaker 03:
So the actual trade industry,

[00:12:53] Speaker 03:
notes the overlap.

[00:12:56] Speaker 03:
So here we have a 128 registration.

[00:12:58] Speaker 02:
I don't remember the evidence specifically, but when you say movie services, movie theater services.

[00:13:06] Speaker 02:
Actual exhibition in a public space of movies.

[00:13:11] Speaker 03:
Yes, Your Honor.

[00:13:13] Speaker 02:
But you don't have

[00:13:14] Speaker 02:
at least at this moment, an exhibition service as part of your registration.

[00:13:21] Speaker 03:
Your Honor, the test for natural zone of expansion isn't whether or not the senior user, and Sky International is the senior user, the 128 registration as the other registrations withstood attack and would be considered to have priority

[00:13:35] Speaker 03:
over the intent to use application that was imposed.

[00:13:39] Speaker 02:
I think when you started on this natural zone expansion point, you said something like there was significant evidence.

[00:13:49] Speaker 02:
That's not right.

[00:13:50] Speaker 02:
There was significant evidence from the movie industry or something.

[00:13:55] Speaker 02:
That's not enough to overturn a contrary factual finding, is it?

[00:14:00] Speaker 03:
Your Honor, the factual evidence, the record showed that there are four factors for the natural zone of expansion.

[00:14:08] Speaker 03:
One, and is the business a distinct departure?

[00:14:16] Speaker 03:
It's not a distinct departure.

[00:14:17] Speaker 03:
The 128 registration covers distribution of films.

[00:14:21] Speaker 03:
A movie theater shows and distributes films.

[00:14:25] Speaker 03:
They are the nature of the goods and services.

[00:14:28] Speaker 03:
Sky International has submitted evidence that they do have movie theaters, not in the United States, but they have movie theaters in the United Kingdom.

[00:14:39] Speaker 03:
There are trade association studies that have been submitted that show the direct relationship in the competition between a movie theater and a streaming service.

[00:14:51] Speaker 04:
And in fact... So I have a concern because I know that there's contrary evidence, evidence that the board relied on.

[00:15:00] Speaker 04:
And so I think that

[00:15:02] Speaker 04:
Judge Toronto's question goes to, you know, that the standard of review that we have here is whether substantial evidence supports the board's finding.

[00:15:12] Speaker 04:
And so you're pointing out contrary evidence.

[00:15:14] Speaker 04:
Well, first of all, I don't know where that contrary evidence is.

[00:15:16] Speaker 04:
So if you have a site for us, that might be helpful.

[00:15:19] Speaker 04:
But secondly, how do you deal with the contrary evidence?

[00:15:22] Speaker 03:
Your Honor, I submit that there isn't contrary evidence.

[00:15:26] Speaker 03:
There isn't evidence in the record except for comments made without any site to any particular evidence that would run contrary to, first of all, the specification in the 128th registration, which is not referred to at all in the July decision.

[00:15:53] Speaker 03:
In terms of the other citations, the movie theater, the market studies are at Appendix Volume 5, 4593, which is a 2014 study, which would necessarily rely on information before 2014.

[00:16:09] Speaker 03:
Volume 5,

[00:16:10] Speaker 03:
4627 is a 2016 study.

[00:16:14] Speaker 03:
Neither of these studies were subject to any objections.

[00:16:17] Speaker 03:
They were not referenced at all.

[00:16:19] Speaker 03:
Skye's Cinema also had stated to its own investors, the appellee had stated to its own investors that its primary competition would be streaming services.

[00:16:29] Speaker 03:
And I'll refer your honors to Appendix Volume 1, page 861 on the top of the page.

[00:16:36] Speaker 02:
You have not only gone into, but in fact gone over your rebuttal time.

[00:16:43] Speaker 02:
I'll restore the rebuttal time.

[00:16:46] Speaker 02:
OK, thank you.

[00:16:47] Speaker 02:
We should hear from the other side.

[00:16:49] Speaker 02:
Thank you.

[00:17:18] Speaker 02:
That's fine, thanks.

[00:17:41] Speaker 02:
Mr. Bonowski?

[00:17:43] Speaker 00:
Yes, Your Honor.

[00:17:44] Speaker 02:
Please.

[00:17:45] Speaker 00:
Thank you.

[00:17:47] Speaker 00:
It bleeds the court.

[00:17:48] Speaker 00:
This case was tried to the board on a fairly significant factual record.

[00:18:01] Speaker 00:
The board determined, based on that factual record, that there was no likelihood of confusion and also ruled in favor of the applicant

[00:18:14] Speaker 00:
in connection, at least in part, in connection with his counterclaim for cancellation.

[00:18:20] Speaker 00:
The opposers' primary argument is that the board erred by bifurcating the trial between the opposition and the counterclaim.

[00:18:35] Speaker 00:
And it is the applicant's contention that no such bifurcation took place.

[00:18:40] Speaker 00:
The fact is that the discovery was not bifurcated.

[00:18:43] Speaker 00:
All of the discovery was conducted before any evidence was presented.

[00:18:46] Speaker 00:
The evidence was not bifurcated.

[00:18:50] Speaker 00:
All of the party's evidence was submitted in the ordinary course prior to the oral hearing.

[00:18:55] Speaker 00:
The briefing was not bifurcated.

[00:18:57] Speaker 00:
All the party's briefing was done in the ordinary course prior to the oral hearing.

[00:19:02] Speaker 00:
And the hearing was not bifurcated.

[00:19:04] Speaker 00:
The parties argued the totality of their case

[00:19:10] Speaker 00:
The first decision in fact grants judgment on a portion of the applicant's counter-claim and discusses the counter-claim.

[00:19:19] Speaker 00:
What happened here is the board simply deferred ruling on the balance of the applicant's counter-claim in light of its decision to dismiss the underlying opposition.

[00:19:32] Speaker 00:
There's also nothing in the opinion in the decision that suggests that the board did not review all of the evidence presented.

[00:19:40] Speaker 00:
Yeah, perhaps the imposer's primary argument is that the board failed to consider the evidence that was presented.

[00:19:46] Speaker 00:
In fact, the board specifically cited the portions of the record which were submitted solely in connection with the counterplaning, including portions of the affidavit of the deposition, which was submitted in rebuttal, and portions of the

[00:20:08] Speaker 00:
declaration of Brett Sheldon, which was specifically submitted in response to the counterpoint.

[00:20:13] Speaker 02:
Mr. Bernowski, did the board specifically address the matter of distribution of film?

[00:20:23] Speaker 00:
The board did address the matter of distribution of film in their discussion of the natural zone of expansion.

[00:20:32] Speaker 00:
And so the applicant, excuse me, the imposer,

[00:20:36] Speaker 00:
that the board did not consider all of the uses embodied in the 128 registration, but it's clear when you review the board's treatment of the question of the relatedness of the services, and especially the treatment of the natural zone of expansion, the board considered that the opposer services included streaming services and production services and distribution services and distribution of film.

[00:21:06] Speaker 00:
and made the factual information based on the record that there was not evidence that moving from film streaming services for accident distribution that moving into a retail movie theater would be within that natural zone of expansion.

[00:21:26] Speaker 01:
Mr. Benosku, what is your best evidence that was before the board for the proposition that

[00:21:35] Speaker 01:
Exhibition of films is not within the natural zone of expansion from distribution of films.

[00:21:44] Speaker 00:
Probably the prospectus that was submitted to the investors in Sky Cinemas, as well as the deposition testimony of William Benosky, that details what services are actually required.

[00:22:02] Speaker 00:
in order to have an exhibition of retail films.

[00:22:07] Speaker 00:
You have to have a facility.

[00:22:08] Speaker 00:
You have to release a bricks and mortar facility.

[00:22:12] Speaker 00:
You have to have all of the appropriate exhibition equipment, which is, the applicant is going to be, the imposer refers to digital projection.

[00:22:21] Speaker 00:
Well, digital projection is just the latest

[00:22:23] Speaker 00:
technology in live exhibition.

[00:22:28] Speaker 00:
You don't have to have all that equipment, but that equipment is not equipment that would be used for streaming services or for production services or for distribution services.

[00:22:39] Speaker 00:
That technology and that equipment only comes into play at the end of the line, if you will, if somebody chooses to go up at a retail movie theater.

[00:22:48] Speaker 00:
And then there's also all of the related services that go along with going to the movies.

[00:22:53] Speaker 00:
You have to have online and retail ticket sales.

[00:22:57] Speaker 00:
You have to have concessions.

[00:23:01] Speaker 00:
You have to have, in this case, food and beverage service.

[00:23:05] Speaker 00:
There's a whole litany of services which are unique to the movie theater industry, which have nothing to do with the streaming industry, the production industry, or the distribution industry.

[00:23:18] Speaker 00:
And so there is substantial evidence of the record

[00:23:23] Speaker 00:
supporting the notion that making the jump, if you will, to movie theaters is simply not within the natural zone of expansion of any of the three areas of service or goods that the 128 registries in this case provided for, and that is broadcasting, whether it's streaming or cable production or distribution, that those are all independent

[00:23:52] Speaker 00:
of film, of film exhibition.

[00:23:56] Speaker 01:
Do you agree that, well, go ahead, you had more.

[00:24:01] Speaker 00:
It's also important to note that this should be looked at and the perspective from this is actually the consumer perspective.

[00:24:10] Speaker 00:
It's not the question whether or not the opposer in this case had the financial or technical wherewithal to enter the movie theater business.

[00:24:20] Speaker 00:
The question is,

[00:24:21] Speaker 00:
whether the consumer of these products or these goods and services would view that it would be in the natural zone of expansion, if you will, for a producer of movies or a distributor of movies to then open up movie theater operations.

[00:24:38] Speaker 00:
And there's no evidence in the record suggesting that the consumers of these services would make any such connection

[00:24:47] Speaker 01:
OK, my next question is, do you agree with your opposing counsel that the version of the registration specification that we should be looking at for purposes of this case, all issues in this case, is the November 2020 order, which appears on, I think, on page 21 of the appendix, 20 and 25.

[00:25:15] Speaker 00:
I do agree that the November 2020 version of the goods and services is the appropriate version in connection with this review.

[00:25:37] Speaker 00:
In addition, the board actually recites in its order that they conducted a review

[00:25:45] Speaker 00:
the entire record.

[00:25:47] Speaker 00:
They say on page 54 of the opinion that they carefully reviewed the record.

[00:25:53] Speaker 00:
And the opinion itself obviously illuminates each element of the record.

[00:26:00] Speaker 00:
And so there is nothing in the record or in the opinion itself to suggest or from which this court can conclude that the board failed to review the entirety of the record.

[00:26:14] Speaker 01:
What pertinence do you think or what significance would you assign to the board's reference, albeit brief, on page 38 of the appendix?

[00:26:27] Speaker 01:
to the, and I'll quote, the mark in these registrations is more similar to applicants marks sky cinemas than our opposers other marks in particular.

[00:26:37] Speaker 01:
We note that they, these are the two marks that were at issue before the board, that the board regarded as being the principle marks at issue.

[00:26:48] Speaker 01:
We note that they are standard character marks, which means that they are devoid of potentially distinguishing graphical elements.

[00:26:55] Speaker 01:
Do you understand that to be

[00:26:57] Speaker 01:
indicating that the 128, which was a stylized version of Sky News, that the board was saying that that is different in a significant way.

[00:27:08] Speaker 01:
The board is a little cryptic on that point, but what do you make of that passage?

[00:27:12] Speaker 00:
What I make of that passage is that the most, I'm going to say the most generic, for lack of a better term, the most generic version of any of these marks are the two marks

[00:27:25] Speaker 00:
that the board focused on, and they rightly concluded that we determined that there's no likelihood of confusion with respect to those marks, and there can't be a likelihood of confusion with respect to the other marks, which all differ from the applicant's marks more significantly, in more significant ways, because generally they

[00:27:47] Speaker 00:
You can have different terms in them, like sky post cycling, for instance, or it connects with this 128 mark.

[00:27:54] Speaker 00:
They have all of the additional graphical elements, which are not contained in these two marks.

[00:27:59] Speaker 00:
And so I think that they're just coming to that conclusion.

[00:28:04] Speaker 00:
I also think that their conclusion is substantially correct, that the goods and services contained in those two marks was

[00:28:13] Speaker 00:
substantially the same as the goods and services in the 148 mark, which is the only other mark that the imposer suggests should have been considered.

[00:28:24] Speaker 00:
Although it enumerates a number of different more detailed services, it doesn't add any significant subject matter over the broadly defined general services in the two marks that were considered.

[00:28:43] Speaker 00:
with a possible exception of distribution.

[00:28:45] Speaker 00:
But as we know already, the board considered the evidence of distribution use and credited the opposer with having been a distributor of films.

[00:28:59] Speaker 00:
And I think it's important to note that the board credited the opposer with having been a distributor of films, even though we submit, and I say the record supports, that there's not actually any evidence

[00:29:13] Speaker 00:
that the imposer actually is treated in any films under any of these marks.

[00:29:22] Speaker 00:
And the evidence is, and the decision recites this, that the film distribution was done not even by a poser, but by related companies and under different marks.

[00:29:35] Speaker 00:
But I think what is really important here is the fact that the court, that the court determined

[00:29:42] Speaker 00:
that distribution was not within the natural zone of expansion for movie theater exhibition services means that those services would not have been considered as overlapping in any event, even if distribution was considered or should have been considered and it wasn't.

[00:30:02] Speaker 00:
I contend that distribution services were considered, and I contend that the decision bears that out in all respects.

[00:30:10] Speaker 00:
And in this case,

[00:30:12] Speaker 00:
What is true about the evidence, what is true about the imposer's evidence is that the imposer has continually conflated its use of different marks other than the registered marks that were the subject matter for the opposition.

[00:30:33] Speaker 00:
And has conflated its use of those marks in the United States with its use of other marks either here

[00:30:41] Speaker 00:
or abroad.

[00:30:42] Speaker 00:
And it's important to note that in its trial briefing, the opposer contended that it owned a family of marks under this sky anchor term, to which the opposer objected.

[00:31:03] Speaker 00:
And the board, in reviewing that, determined A, that the board sustained the opposer, the applicant's objection,

[00:31:11] Speaker 00:
that there was no family of marks played, but then went further and determined on the merits that there was no family of marks proven.

[00:31:20] Speaker 00:
And so the question really is, where is the evidence of the use of any of these registered marks in connection with services anywhere approaching a movie theater?

[00:31:38] Speaker 00:
And there's no evidence of any of that.

[00:31:41] Speaker 00:
of any of that use.

[00:31:42] Speaker 00:
And so I see that my time has almost expired.

[00:31:46] Speaker 00:
If there are no questions, then I will conclude.

[00:31:51] Speaker 02:
I think there are no questions.

[00:31:53] Speaker 02:
Thank you very much.

[00:31:54] Speaker 02:
Thank you for your argument.

[00:32:42] Speaker 03:
We just agree that the board reviewed the entire record when rendering its Dismissal of the opposition the board after rendering its decision there is an exchange that's in the appendix between the parties and

[00:33:02] Speaker 03:
The applicant and counterclaimant was asked whether or not they wanted to continue to pursue the cancellation.

[00:33:11] Speaker 03:
And after the applicant contended it wished to continue the cancellation, including marks that were no longer at issue in the proceedings, the board issued an order asking the parties to refer to the record because they would not review.

[00:33:27] Speaker 03:
They would not be tasked with reviewing the entire record

[00:33:30] Speaker 03:
with respect to the services claimed in the cancellation.

[00:33:35] Speaker 03:
Had the board issued an order that initially that was not bifurcated that necessarily would have been part of it.

[00:33:42] Speaker 03:
But it was clear from the post briefing that was done by the parties and subject to the board's order that followed the July decision that the board pushed aside the cancellation.

[00:33:59] Speaker 03:
The order in July reads as though, well,

[00:34:03] Speaker 03:
applicants, you got what you want.

[00:34:04] Speaker 03:
You really want to pursue this cancellation that deals with quite a lot of goods and services.

[00:34:11] Speaker 03:
For which Sky had put forth evidence.

[00:34:14] Speaker 03:
In terms of the differences between, I'd like to go back to Judge Stoll's point, is the Sky News block letter mark different from the Sky News stylized mark?

[00:34:27] Speaker 03:
Sky Cinema's application is in block letters.

[00:34:30] Speaker 03:
So Sky Cinema could, in fact, use its mark in the same stylization as Sky News' 128 registration at this point.

[00:34:42] Speaker 03:
The Sky News 128 registration is narrower, and instead of being looked at as against the broader Sky Cinema's application, because a block letter application is protected to be used in any stylization.

[00:34:58] Speaker 03:
So the senior user of a narrower registration is viewed by the board as having greater rights, because their rights should not be diminished against a junior user with a broader registration or broader application.

[00:35:15] Speaker 03:
So Sky Cinemas, at this point, if their mark proceeds to registration, could put up a billboard that looks exactly like the Sky News registration, because the board has already

[00:35:28] Speaker 03:
has already ruled that it is permitted.

[00:35:32] Speaker 03:
And because the cinema's application was filed in block letters.

[00:35:38] Speaker 03:
That's a different situation, Your Honors.

[00:35:40] Speaker 03:
if you've got two stylized marks that are vastly different, and that there's subject matter in the applications or registrations that really make those marks look different.

[00:35:53] Speaker 03:
For example, if there's a bicycle image, or a basketball player, or if there's curly cues all over them, and you're comparing two marks that visually look very different.

[00:36:04] Speaker 03:
But there's nothing to suggest that these two marks look different.

[00:36:08] Speaker 03:
the only thing that can be concluded.

[00:36:11] Speaker 03:
And this is indeed a bifurcation.

[00:36:13] Speaker 03:
It is absolutely a bifurcation of a decision.

[00:36:17] Speaker 03:
And the decision looks at the validity of the registrations that Skye cited in his opposition, and which have a presumption of validity and ownership.

[00:36:27] Speaker 03:
And in fact, in the July decision, the board acknowledges that priority wouldn't be an issue.

[00:36:36] Speaker 03:
except if the mark is attacked.

[00:36:39] Speaker 03:
So we only looked at the marks that weren't attacked.

[00:36:42] Speaker 03:
So priority wouldn't be an issue.

[00:36:43] Speaker 03:
Instead of analyzing the whole thing and issuing a single decision, like in the Jack Wolfson case, where you have both the cancellation and the opposition.

[00:36:55] Speaker 03:
We know of no situation where the board has done what it has done in this case, where it has bifurcated any issues

[00:37:02] Speaker 03:
before rendering a decision without the consent of the parties and an opportunity to be heard.

[00:37:07] Speaker 03:
The first time Skye learned of this was in the decision, on the last page of the decision.

[00:37:14] Speaker 02:
Thank you.

[00:37:15] Speaker 02:
Thank you.

[00:37:15] Speaker 02:
Your time has elapsed.

[00:37:16] Speaker 02:
Thank you to both counsel, here and abroad.