[00:00:00] Speaker 04: OK. [00:00:00] Speaker 04: Thank you, Mike. [00:00:02] Speaker 04: The next argue case is number 22. [00:00:04] Speaker 04: Let's see. [00:00:08] Speaker 04: It's just 1847. [00:00:10] Speaker 04: In re-advanced nutritional supplements. [00:00:13] Speaker 04: Mr. Sermon. [00:00:15] Speaker 03: Good morning. [00:00:15] Speaker 03: Your honor, could please use this honorable court. [00:00:18] Speaker 03: The arguments raised by the PTO in their reply brief are of great concern to me and my client, as they're a direct contradiction. [00:00:26] Speaker ?: With longstanding legal precedent of this court, [00:00:29] Speaker ?: its predecessor, and the trademark trial of the Peel Board. [00:00:34] Speaker 03: The substantial evidence standard in this case requires us to consider the facts and then apply the law as set forth in Section 2 of the Lanham Act. [00:00:45] Speaker 03: The burden in this case is initially on the trademark office to establish that appellant's trademark is merely descriptive. [00:00:54] Speaker 03: Appellate comes before this honorable court today on the basis that the board has cast aside certain facts and applicable legal precedent, which is both arbitrary and capricious. [00:01:07] Speaker 03: Any individual who is shopping for nutritional supplements and encounters the trademark quad mass on such goods does not immediately perceive the term quad mass as describing any function [00:01:21] Speaker 03: or characteristic of these supplement goods. [00:01:25] Speaker 03: If anything, the term quad mass may cause a consumer to think of a potential desired result through consuming these goods. [00:01:35] Speaker 03: thereafter engaging in certain physical exercises. [00:01:39] Speaker 05: Well, can you just point us to, I mean, you're making assertions in attorney argument, and that doesn't get us very far. [00:01:46] Speaker 05: What record evidence is there to support your view that what, consumers would not have associated quad mass with your dietary supplements? [00:02:01] Speaker 03: The question is more what the consumer would associate the term quad mass with on approaching the goods, and if they would potentially assume or think of any relevant term that is relevant to these goods that is not descriptive, then the trademark is suggested. [00:02:24] Speaker 04: I said it was merely descriptive. [00:02:28] Speaker 04: Doesn't that leave the door open? [00:02:31] Speaker 04: for future events of secondary considerations to move the product to a principal register? [00:02:42] Speaker 04: Well, the product is being applied for on the principal register, currently. [00:02:46] Speaker 04: I assume that, and I assume that that is part of the problem and the reason that the examiner or the board used the terms merely descriptive as a term of art [00:03:00] Speaker 04: for possible registration on a supplemental registry. [00:03:06] Speaker 03: Well, a trademark must be merely descriptive in order to be refused registration. [00:03:11] Speaker 03: In this case, the appellant's argument is that there are other relevant meanings for the term quad mass, which render it suggestive in that case. [00:03:23] Speaker 04: And leaving the door open for the development of proof, additional support, [00:03:30] Speaker 04: with time, with evidence. [00:03:34] Speaker 04: That seems to be what they had in mind when they wrote their opinion this way. [00:03:43] Speaker 04: You don't agree with that? [00:03:44] Speaker 03: Respectfully, I don't in this case, Your Honor. [00:03:48] Speaker 03: I think that the board in this case has [00:03:51] Speaker 03: And as the Pelley's argument notes, does not address the argument that the term quad mass to an average consumer does not with particularity immediately tell a consumer any characteristic of the actual goods themselves. [00:04:09] Speaker 03: And that's what a trademark must do in order to be refused. [00:04:12] Speaker 03: If a trademark does not immediately tell someone, [00:04:15] Speaker 03: what these goods do or are characteristic of those actual goods themselves, then it cannot be refused under the law for extradition. [00:04:25] Speaker 02: Mr. Sturman, it's Judge Stark. [00:04:28] Speaker 02: It's not, I think, per se, the average consumer in the abstract, isn't it, a consumer who would be interested in these goods and would know what goods they were looking at? [00:04:39] Speaker 02: Isn't it what would be in their mind? [00:04:42] Speaker 03: I think you're correct in both cases of what you're saying there. [00:04:45] Speaker 03: It is an average consumer that we're looking at, but it's an average consumer that is looking at these goods and doesn't know exactly what they are. [00:04:52] Speaker 03: The test specifically is not a consumer that doesn't know what the goods are, but the consumer that actually [00:05:00] Speaker 02: So didn't the board point to a lot of evidence, for instance, from your website that what that consumer that we're concerned with would have seen as things like reference to quad mass extreme muscle on your website? [00:05:14] Speaker 02: And isn't that at least substantial evidence to support the merely descriptive finding? [00:05:21] Speaker 03: I think what it is is part of the evidentiary record. [00:05:24] Speaker 03: The evidentiary record establishes that, for example, the term quad [00:05:28] Speaker 03: can mean the term quadricep. [00:05:30] Speaker 03: It can also mean the term quadruple, which is what the dictionary evidence provided by the examiner in this case stated. [00:05:36] Speaker ?: Quadruple, of course, is on the same dictionary page as the term four. [00:05:41] Speaker 03: In this case, the appellant's food contains four compounds. [00:05:46] Speaker 03: And so if a consumer comes across that and it contains four compounds, the name is not four compounds, does contain the term four. [00:05:56] Speaker 03: But a consumer has to think four what? [00:05:58] Speaker 03: And if the consumer thinks for what along with quadriceps what, that's two potential meanings of the actual trademark there before we even get to the word mass. [00:06:08] Speaker 03: And so therefore consumer has to exercise some thought or reason or rationale. [00:06:13] Speaker 03: And that's the actual definition of a suggested trademark is a consumer that has to exercise any thought in order to understand the meaning of those goods. [00:06:24] Speaker 02: My understanding of substantial evidence review is that even if you're right that perhaps this evidence could have been found to be sufficient to support the finding that the mark was suggestive, if it also is sufficient to support a finding, as the board made, that it was merely descriptive, that we're supposed to affirm. [00:06:45] Speaker 02: That is, substantial evidence review does not necessarily preclude the possibility [00:06:51] Speaker 02: that you could have prevailed. [00:06:53] Speaker 02: Is that a correct understanding of our standard of review? [00:06:56] Speaker 03: I think you're 100% correct on the actual standard itself, Your Honor. [00:07:00] Speaker 03: I think the appellant's case here is that that's not actually what has occurred, because we have to look at a reasonable person evaluating this case and looking at all the factual evidence. [00:07:13] Speaker 03: And so if all the facts, it also shows that there is a single suggestive meaning that a consumer could have [00:07:22] Speaker 03: then it's not descriptive. [00:07:23] Speaker 03: That's what the law says. [00:07:25] Speaker 03: The law goes back over 100 years that the term only is synonymous with the term merely. [00:07:31] Speaker 03: And so if there is a single relevant meaning, then it cannot be considered descriptive under the law. [00:07:38] Speaker 04: Okay. [00:07:39] Speaker 04: I think we have the argument. [00:07:40] Speaker 04: Anything at the moment from the panel? [00:07:44] Speaker ?: No. [00:07:44] Speaker 01: No. [00:07:46] Speaker 04: All right. [00:07:47] Speaker 04: And then we have your rebuttal time. [00:07:48] Speaker 04: We'll see what the other side has to say. [00:07:51] Speaker 00: Thank you, your honor. [00:07:54] Speaker 00: May it please the court, Daniel Kasdan, on behalf of the government. [00:07:58] Speaker 00: Substantial evidence supports the board's decision here. [00:08:01] Speaker 00: The question is the Mark Quad Mass. [00:08:05] Speaker 00: And as our brief shows and as the board showed, [00:08:08] Speaker 00: The word quad in the relevant space would be directly associated with the quadriceps muscle. [00:08:16] Speaker 00: There's the ProMax article, Vimulti article, many other articles in the dietary and nutritional space that show that. [00:08:22] Speaker 00: The word mass in the dietary and nutritional supplement also would immediately invoke one meaning, which is the muscle mass. [00:08:32] Speaker 05: Well, what if we were to disagree with the first part of what you said? [00:08:35] Speaker 05: What if we think quad? [00:08:37] Speaker 05: Yeah, it may mean quadruple. [00:08:40] Speaker 05: It could be quadruple. [00:08:42] Speaker 05: I mean, it's very nearly quadruple. [00:08:44] Speaker 05: Or four. [00:08:45] Speaker 05: Does that change the result here? [00:08:47] Speaker 00: it doesn't in particular because when you put the two words quad mass together and this is like the schwarzenegger article that is a term that people actually use in this space it's kind of like brew science and coals which is a non-precedential opinion from i think last year or the year before like brew could mean tea could mean beer but like in this space especially in the combined brew science or here quad mass quad mass means something people [00:09:13] Speaker 00: People who are taking dietary and nutritional supplements immediately know what a quad mass is. [00:09:19] Speaker 00: It's the mass of the quad muscle. [00:09:20] Speaker 00: So it's not fair. [00:09:23] Speaker 00: What Appellant is trying to do is to say that these words have meaning in isolation, which is fair. [00:09:28] Speaker 00: But in this context, we know what these words mean. [00:09:31] Speaker 00: Or not we, but the relevant consumer would immediately know what these words mean. [00:09:34] Speaker 00: And I think the Coles case in particular is very, very analogous on the facts. [00:09:42] Speaker 00: That's the majority. [00:09:43] Speaker 00: I just want to just flag what Judge Newman said is 100% right. [00:09:47] Speaker 00: Of course, a mere descriptiveness refusal can be overcome with acquired distinctiveness. [00:09:53] Speaker 00: We don't have that yet, but if they acquire distinctiveness that's not generic, then they can get their mark. [00:09:59] Speaker 00: In terms of the four compound argument, and we made this point at our brief on 17, they forfeited that. [00:10:05] Speaker 00: They never mentioned that there were four compounds before the board. [00:10:08] Speaker 00: Even if they had, I think, to the very short colloquy I had with Judge Prost, the quad mass is still a term that people are understanding. [00:10:16] Speaker 00: People understand quad and mass are anyway, but that particular argument is also forfeited. [00:10:25] Speaker 00: The truth is, Your Honor, that is all I have. [00:10:28] Speaker 00: I'm happy to take any questions. [00:10:30] Speaker 00: But I don't want to. [00:10:30] Speaker 02: I guess I just have one. [00:10:32] Speaker 02: The position, of course, of your friend on the other side is that the mark is suggestive. [00:10:38] Speaker 02: And that was the position they took below, correct? [00:10:43] Speaker 00: Yes. [00:10:43] Speaker 02: Does the board clearly address whether it's suggestive, or does it really only examine [00:10:50] Speaker 02: if it's merely descriptive? [00:10:52] Speaker 02: That is, do they clearly reject the possibility that it's suggestive? [00:10:56] Speaker 00: I mean, I think every merely descriptive mark is automatically also suggestive in the four types of thing, right? [00:11:04] Speaker 00: Because if you'd immediately understand it, it would also be suggested to you. [00:11:08] Speaker 00: So I think that they really focus their analysis on what it is, and they show that these terms are really on point. [00:11:15] Speaker 00: I think substantial evidence supports that. [00:11:16] Speaker 00: I don't know if I've quite answered your question. [00:11:18] Speaker 02: It does. [00:11:19] Speaker 02: Thanks. [00:11:20] Speaker 02: I have no other questions. [00:11:23] Speaker 05: Nothing for you. [00:11:24] Speaker 04: Any more questions for the government? [00:11:26] Speaker 05: No, thank you. [00:11:29] Speaker 04: All right, Mr. Schoen, you have the last word. [00:11:37] Speaker ?: Yes, thank you, your honor. [00:11:39] Speaker ?: I'd like to address a few points here that I think are crucial. [00:11:43] Speaker 03: The record clearly demonstrates, as your honors have respectfully noted, that the term quad does have multiple meanings. [00:11:50] Speaker 03: And of course, the dictionary evidence shows that the quad is equivalent to the word four. [00:11:55] Speaker 03: And so anything having to do with the appellate forfeiting an argument that has been set forth, it does not seem proper. [00:12:04] Speaker 03: In this case, the appellate's website includes a picture of these goods and the visual depiction of the four compounds that make up these supplements. [00:12:15] Speaker 03: That's included in the appendix here. [00:12:17] Speaker 03: It was included in the usual depiction by the appellee in their brief. [00:12:23] Speaker 03: Despite this evidence, this was cast aside by the board. [00:12:28] Speaker 03: And in this case, the terms quad and the term mass have multiple definitions that could be considered relevant. [00:12:36] Speaker 03: And therefore, that's a personification of a suggested trademark. [00:12:40] Speaker 03: The legal system regularly notes the differences between the terms should and shall. [00:12:45] Speaker 03: And it's imperative that we play great difference in considerations and distinction between descriptive and merely descriptive. [00:12:52] Speaker 03: Because if we drew the word merely from this, then any trademark which provided any information at all in regards to the nature of such goods would not be eligible for registration. [00:13:05] Speaker 03: This case is very similar to a case that the board overturned several years ago, which was over the term dot blog. [00:13:13] Speaker 03: which the facts were very similar in this case. [00:13:16] Speaker 03: And the case decided by the appellee, I think, distinguishes quite, quite good as well, in that unlike a thin cracker that's made of rice, that's called a rice thin, or a badge that detects gas, called a gas badge, these foods, the supplements, are not described with particularity or immediacy. [00:13:36] Speaker 03: That argument is key as well, because in the appellee's brief, they note that there is no requirement for particularity. [00:13:44] Speaker 03: But this is been cited by the trademark Toronto billboard numerous times. [00:13:48] Speaker 03: It continues to be regularly and is noted in the appellant's brief. [00:13:52] Speaker 03: The appellee seeks to overcome that by noting that two cases that we cite, which do not mention that, [00:13:59] Speaker 03: argument would somehow overturn that precedent, but that's not the case at all. [00:14:04] Speaker 03: The board seemingly continues to cite that particularity is something that's required in order for a trademark to be merely descriptive. [00:14:14] Speaker 03: One other point on that is that a trademark which is a suggesting result of using the goods, in other words, if the case is that somebody could, through exercise, [00:14:27] Speaker 03: take these goods and increase their mass of their quadriceps, that would be a desired result. [00:14:34] Speaker 03: The board has noted routinely again that a desired result is indicative of a suggestive trademark. [00:14:43] Speaker 03: The appellee seeks to cast aside that argument as well by one case, and that's the basic food case. [00:14:50] Speaker 03: That case has only been cited a single time, and it's not been cited since the administration of Harry Truman. [00:14:55] Speaker 03: And so, in this case, while the board continues to note that particularity and desired result are indicative of a suggested trademark, that's not been the case in how that's been decided here. [00:15:06] Speaker 03: And so, respectfully, under the substantial evidence standard and looking at all the facts, in particular, the dictionary evidence as well, which shows that the term quadruple or quad are the equivalent there, and the term mass could also reference the term massive [00:15:22] Speaker 03: A consumer could think that the term is referencing both of those as well as quadriceps and requires, again, thought. [00:15:30] Speaker 03: And that is a suggested trademark. [00:15:32] Speaker 03: Thank you, Your Honor. [00:15:33] Speaker 04: Counsel, one final question. [00:15:35] Speaker 04: How do you get around the examiner's citation of various uses of quad mats in the same context? [00:15:45] Speaker 03: I think in that case, there are people that are using the term quad mass just to describe quad mass, but they're not using it to describe specific supplement goods that are quad mass. [00:15:55] Speaker 03: They're using it to describe they're increasing the mass of their quad or seven. [00:15:59] Speaker 03: So certainly somebody can use those terms, and that is a relevant meaning. [00:16:04] Speaker 03: But that's an additional meaning to the term quadruple, which in this case is also relevant. [00:16:09] Speaker 03: So if the consumer could think of both of those, then that's not a descriptive trademark that's suggested. [00:16:15] Speaker 03: The fact that a consumer could increase their quadricep muscle size through taking these goods and then exercising is a result. [00:16:24] Speaker 03: But goods just sitting on a shelf without any use, that's not descriptive of the goods themselves. [00:16:30] Speaker 03: That is, the goods themselves are not quad mats. [00:16:33] Speaker 03: They're not a mass of a quadricep. [00:16:35] Speaker 03: They're a supplement that somebody would ingest. [00:16:41] Speaker 04: Any more questions for Jonathan? [00:16:43] Speaker 04: No, thank you. [00:16:44] Speaker 02: No, thank you. [00:16:46] Speaker 04: OK, thanks to both counsel. [00:16:48] Speaker 04: The case is taken under submission. [00:16:50] Speaker 04: Thank you. [00:16:51] Speaker 04: That concludes this panel's argued cases for today.