[00:00:00] Speaker 02:
Mahindra against Mahindra, limited against the ITC.

[00:00:04] Speaker 02:
All right.

[00:00:05] Speaker 02:
And so as you were saying, you all have divided up the arguments and the issues.

[00:00:11] Speaker 02:
So will you tell us which particular issue you're going to discuss in your argument section?

[00:00:19] Speaker 02:
OK.

[00:00:19] Speaker 08:
I will be addressing the appeal of the ITC decision on the first rock sore

[00:00:27] Speaker 08:
vehicle finding that it infringed the cheap trade dress.

[00:00:31] Speaker 08:
Okay, so you'll be discussing infringement?

[00:00:34] Speaker 08:
Yes.

[00:00:35] Speaker 08:
Okay.

[00:00:36] Speaker 08:
Yes.

[00:00:38] Speaker 08:
May it please the court?

[00:00:41] Speaker 08:
The Supreme Court in the Walmart and Traffic's cases cautioned about the dangers of trade dress protection in depriving consumers of the aesthetic and utilitarian aspects of trade dress design.

[00:00:58] Speaker 08:
The 2018 Roxor, the accused vehicle, is a copy, a modern day copy, of the original Willie's military jeep and the civilian jeeps that followed pre-1955.

[00:01:16] Speaker 08:
The ITC committed errors of fact and law in finding that the cheap trade dress was not generic.

[00:01:28] Speaker 03:
Counsel, this is Judge Stoll.

[00:01:30] Speaker 03:
I just want to ask you one quick question, which is, does your legal argument here rely on your view that once something is generic, that's it?

[00:01:42] Speaker 03:
It can never go back?

[00:01:44] Speaker 03:
It can never acquire secondary meaning?

[00:01:47] Speaker 03:
Yes, it does.

[00:01:48] Speaker 03:
What if I disagree with you on that as a matter of law?

[00:01:54] Speaker 08:
Well, I think the facts will not support any finding of secondary meaning in this case.

[00:02:02] Speaker 08:
And let me first begin with how the ITC defined the genus that it was considered.

[00:02:11] Speaker ?:
And it did so by referring to the Jeep Wrangler, Jeep's vehicles that are sold today, which are SUVs.

[00:02:18] Speaker ?:
And it said these are SUVs, commercial vehicles, and that the

[00:02:24] Speaker 08:
Military vehicles, which are not commercial, their product design should not apply.

[00:02:31] Speaker 08:
And that is wrong as a matter of law.

[00:02:34] Speaker 08:
The original design, the Willie's MB, was known throughout the world.

[00:02:41] Speaker 08:
It was the most popular, famous vehicle after World War II.

[00:02:45] Speaker 08:
Everybody knew what it was.

[00:02:47] Speaker 08:
Those members of the military who drove those jeeps

[00:02:51] Speaker 08:
the people who saw it in movies, newsreels, and pictures, they all knew what that Jeep trade dress was.

[00:02:58] Speaker 08:
And there is no evidence in the record, and it was certainly FCA's burden, to show that that design was not generic.

[00:03:09] Speaker 08:
So, turning to the evidence of the first introduction, according to FCA, a commercial version of

[00:03:20] Speaker 08:
their cheap trade rest, they refer to the CJ-5 in 1955.

[00:03:27] Speaker 08:
The only evidence in the record to support that is testimony from Kristin Spano, FCA's trademark attorney, which is at the appendix 50916, and also the evolution of an icon poster, which is at appendix 66916.

[00:03:49] Speaker 08:
nine six nine nine seven five.

[00:03:53] Speaker 08:
The evolution of the icon poster talks about the introduction of the Jeep trade dress or the Willy's vehicle.

[00:04:05] Speaker 08:
And throughout the years, SCA has emphasized its legacy that it has maintained that original trade dress throughout its vehicle liner.

[00:04:19] Speaker 08:
from 1941 through the present.

[00:04:24] Speaker 08:
Ms.

[00:04:24] Speaker 08:
Spano testified that the commercial cheap trade dress was introduced in 1955.

[00:04:31] Speaker 08:
And if you look at the poster, she then testified, as did others, that the commercial impression from 1955 through today was maintained.

[00:04:45] Speaker 08:
There was no evidence as to the commercial impression

[00:04:49] Speaker 08:
of the pre-1955 vehicles, except for the one siege of these two civilian jeeps, which they distinguished, FCA distinguished, by saying that the front fender extended beyond the front of the grid.

[00:05:10] Speaker ?:
Everything else was the same.

[00:05:12] Speaker ?:
And the one difference was that the front fender extended beyond the grid.

[00:05:18] Speaker 08:
They did not distinguish or compare the substantial similarity of all the military jeeps.

[00:05:26] Speaker 08:
And they also did not discuss how there was a continuing commercial impression from those military and civilian jeeps, which even the civilian jeeps contained all of the trade dress elements.

[00:05:48] Speaker 03:
It sounds, counsel, it sounds to me as if you're presenting what could be a very compelling argument that back in 1940s, maybe then, this trade dress was generic.

[00:06:03] Speaker 03:
But what is the time frame that I should be looking at?

[00:06:06] Speaker 03:
And why did the ITC err in looking at the Jeep trade dress as of the time of the lawsuit?

[00:06:18] Speaker 08:
Once generic, always generic.

[00:06:22] Speaker 08:
And you can't recapture a design simply by saying that there's one little difference.

[00:06:29] Speaker 08:
And how is FCA asserting this trade dress design?

[00:06:35] Speaker 08:
The Roxor is not an automobile.

[00:06:38] Speaker 08:
It cannot be driven on the road.

[00:06:40] Speaker 08:
It is a UTV.

[00:06:42] Speaker 08:
It is something that can only be driven off roads.

[00:06:44] Speaker 08:
It's sold in different dealerships.

[00:06:46] Speaker 08:
and it's directed to a different consumer.

[00:06:49] Speaker 08:
If I could direct the court to something that I think is really exemplifies what the issues in this case are, and that is that Appendix 53906.

[00:07:01] Speaker 08:
It is an email that was sent to Mahindra and that the ITC and FCA submit is evidence of likelihood of confusion.

[00:07:15] Speaker 08:
It really shows the opposite.

[00:07:18] Speaker 08:
And what it says is, is this is from a consumer, Tuma Hindra, not confused about the source of the Roxor.

[00:07:27] Speaker 08:
And he says, I have to tell you that the new Roxor is a sight for sore eyes.

[00:07:33] Speaker 08:
Personally, I am a Jeep fanatic and I just love the Roxor.

[00:07:39] Speaker 08:
When the CJ series was retired, my heart sank.

[00:07:44] Speaker 08:
Today we are left with hipster Jeep.

[00:07:46] Speaker 08:
that in my eyes are not real jeeps.

[00:07:50] Speaker 08:
So what we have here is a vehicle, the 2018 Roxor, that everybody acknowledges is a copy of the original Willie's military jeep.

[00:08:02] Speaker 08:
And yet, through trying to capture secondary meaning 70 years later through SUVs, that

[00:08:14] Speaker 08:
FCA now tries to preclude its sale.

[00:08:18] Speaker 08:
However, it's clear from that email alone that consumers desire that original design.

[00:08:28] Speaker 08:
For whatever reason, whether they want to have nostalgia for military jeeps or just want to drive around in the woods in something that resembles a military jeep, it is something that FCA stopped selling years ago.

[00:08:43] Speaker 08:
And yet now,

[00:08:44] Speaker 08:
consumers are deprived of something that they want.

[00:08:48] Speaker 03:
I want to ask you one other question, counsel.

[00:08:50] Speaker 03:
What is the standard of review that we apply for determining whether something's generic and also for determining whether there's secondary meaning?

[00:09:01] Speaker 08:
As far as the standard and the selection of the genus,

[00:09:05] Speaker 08:
That is a question of law.

[00:09:07] Speaker 03:
I asked you whether a certain mark is generic or not.

[00:09:17] Speaker 03:
Is that a question of fact or a question of law?

[00:09:20] Speaker 03:
That's a question of fact.

[00:09:21] Speaker 03:
And what about whether a trade dress has acquired secondary meaning?

[00:09:25] Speaker 03:
Is that a question of fact or a question of law?

[00:09:28] Speaker 03:
Question of fact.

[00:09:29] Speaker 03:
OK.

[00:09:29] Speaker 03:
And so we review that for substantial evidence.

[00:09:32] Speaker ?:
Yes.

[00:09:32] Speaker 03:
There's a lot of evidence here.

[00:09:35] Speaker 03:
supporting the idea that the cheap trade dress is not generic and that there's secondary meaning.

[00:09:45] Speaker 03:
Would you want to talk about secondary meaning?

[00:09:48] Speaker 08:
Yes.

[00:09:50] Speaker 08:
The ITC determines secondary meaning based on three different surveys.

[00:09:57] Speaker 08:
One in 1949 that had nothing to do with the cheap trade dress but was simply

[00:10:04] Speaker 08:
referring to the Jeep Mark, to one in 1998 that only concerned the iconic seventh-floor grill, which is not part of the trade dress, and then the surveys submitted by FCA in this case.

[00:10:22] Speaker 08:
We are not saying maybe there is some trade dress for the Wrangler, but that is not the trade dress at issue here.

[00:10:30] Speaker 08:
This is a trade dress that specifically was

[00:10:34] Speaker 08:
formulated to hit the rock sore, which is a copy of something that's been off the market for many, many years.

[00:10:42] Speaker 03:
Can I ask you something else?

[00:10:43] Speaker 03:
You just said something I thought was interesting, and I think I remember seeing it in your briefs, that the trade dress does not include the seven slot grill.

[00:10:51] Speaker ?:
Correct.

[00:10:53] Speaker 03:
That's contrary to what the ITC said, right?

[00:10:56] Speaker 08:
Well, the ITC said that it is a subset, in my words, of the vertical trapezoidal grill.

[00:11:05] Speaker 08:
but all the evidence shows that what consumers recognize are those seven slots and that the rock-sword grill which had five slots which were not exactly vertical and had the Mahindra emblem was not an infringement of that trademark seven-slot grill.

[00:11:24] Speaker 03:
Yes, that was the finding by the ITC, but what is the basis for saying that the grill isn't part of the trade dress?

[00:11:32] Speaker 08:
The specific seven-slot grill

[00:11:35] Speaker 08:
and relying on secondary meaning evidence specific to the 7-slot grill and not vertical grills in general with vertical slots from 2 to 20, that is not sufficient evidence to find secondary meaning in the trade dress.

[00:11:56] Speaker 03:
Don't you agree with the trade dress as a whole?

[00:11:59] Speaker 03:
That's your view.

[00:12:00] Speaker 03:
These surveys have to be for the trade dress as a whole.

[00:12:03] Speaker 08:
Yes.

[00:12:04] Speaker 08:
and relying on evidence of something that is not specifically defined in the trade dress is not sufficient evidence to support secondary meaning.

[00:12:16] Speaker 08:
And there's no doubt that if Mahindra was selling the rock sword to the military, that this would still be accused of trade dress infringement.

[00:12:29] Speaker 08:
So this distinction between military and non-military is a fiction that this court should not affirm.

[00:12:36] Speaker 08:
It would be a very dangerous precedent for this court to expand trade dress so that someone could recapture something that, as the FTC said in its 1948 decision, really is the predecessor to the FDA, did not even come up with itself.

[00:12:55] Speaker 08:
It was not fair trade trips.

[00:12:56] Speaker 03:
What law do you have for the proposition that one's generic, always generic?

[00:13:02] Speaker 03:
I mean, that seems to be a key part of your case.

[00:13:06] Speaker 08:
Yes, it is.

[00:13:07] Speaker 08:
And I think it goes back to there are a number of cases that are cited in our brief.

[00:13:15] Speaker 08:
One doesn't come to mind right now.

[00:13:16] Speaker 08:
It will probably when I sit down.

[00:13:19] Speaker 08:
But that is the law.

[00:13:23] Speaker 08:
And it could never acquire secondary meaning.

[00:13:27] Speaker 08:
There's the Harley-Davidson case.

[00:13:29] Speaker 08:
There's Merrill Lynch.

[00:13:30] Speaker 08:
There are a number of cases.

[00:13:31] Speaker 03:
You say if it doesn't acquire secondary meaning.

[00:13:34] Speaker 08:
Even if it doesn't acquire secondary meaning, it can never become distinct.

[00:13:39] Speaker 08:
And again, this original rock sword is a copy of something that was sold in the 1940s and 1950s.

[00:13:46] Speaker 08:
It is not a copy of the Jeep Wrangler.

[00:13:50] Speaker 08:
It doesn't look anything like a Jeep Wrangler.

[00:13:52] Speaker 03:
That's a pencil question, right?

[00:13:55] Speaker 08:
Yes, it is.

[00:13:57] Speaker 06:
Mr. Goebbels, this is Judge Cleminger on the genus issue.

[00:14:00] Speaker 06:
I understood that you contested the genus being formed at the SUV at the ITC level, but I did not see you raising that issue in your briefs to us.

[00:14:12] Speaker 08:
We did, Your Honor.

[00:14:13] Speaker 06:
We argued that the problem- Could you point to me in your blue brief where you challenged expressly

[00:14:21] Speaker 06:
Uh, genus being the SUV.

[00:14:25] Speaker 08:
Uh, page 32 of our response brief.

[00:14:31] Speaker 08:
Do you say your reply brief?

[00:14:33] Speaker 08:
Yes, responsive reply brief.

[00:14:42] Speaker 06:
Isn't that too late?

[00:14:46] Speaker 03:
Aren't you supposed to raise your issues in your opening brief?

[00:14:50] Speaker 08:
We've engaged.

[00:14:51] Speaker 08:
And we discussed that the proper subgroup, that the subgroup of military type vehicles was generic.

[00:14:59] Speaker 08:
And therefore, the genus could not be considered non-generic.

[00:15:06] Speaker 03:
I think the question was, where did you argue that the genus of SUVs is incorrect?

[00:15:17] Speaker 08:
Specifically that the genus of SUVs was incorrect?

[00:15:22] Speaker 08:
It depends on what you think that SUV is.

[00:15:25] Speaker 06:
You're just asking because you argued the point below, and it was rejected.

[00:15:30] Speaker 06:
But I don't believe you preserved that for appeal.

[00:15:35] Speaker 06:
I believe we did, Your Honor.

[00:15:37] Speaker 06:
Belief is one thing.

[00:15:39] Speaker 06:
Fact is different.

[00:15:40] Speaker 06:
So you need to find a clear citation in your primary brief.

[00:16:00] Speaker 08:
Well, Your Honor, I'll try to find that.

[00:16:02] Speaker 08:
But I will submit that if a sub-genus, a sub-category of a genus is generic, the genus has to be generic also.

[00:16:12] Speaker 08:
And that since they are asserting their trade dress against a sub-category, that is not an SUV.

[00:16:19] Speaker 06:
You know, in the letter here, was there ever a finding by the ITC that there actually was a genus in the World War II Jeep vehicle?

[00:16:28] Speaker 08:
No, I don't think they found that there was a genius.

[00:16:31] Speaker 06:
But you're arguing here that we should find that there was one.

[00:16:35] Speaker 08:
Well, they're defining a broad genius.

[00:16:37] Speaker 08:
The genius should be defined by what FCA is asserting as an infringement, not just a statement that the Wrangler is an SUV.

[00:16:46] Speaker 08:
That's not sufficient.

[00:16:48] Speaker 08:
They're asserting it against something that is not an SUV.

[00:16:52] Speaker 06:
Well, I was just pointing out, I didn't see the board making any fact findings relevant to these issues.

[00:16:59] Speaker 06:
pertinent to the World War II Jeep because they said the World War II Jeep is irrelevant to this whole conversation.

[00:17:07] Speaker 08:
That's what they said.

[00:17:08] Speaker 06:
But they're making arguments to me, I believe, sir, today that I should understand that there are facts that should be found with regard to the World War II Jeep as to whether it was iconic, whether there was public recognition, secondary

[00:17:26] Speaker 06:
meaning of all of that, but I don't see any of those fact findings.

[00:17:30] Speaker 08:
I'm saying it's an error of law to exclude that World War II gene from consideration as to whether the genus is generic or not.

[00:17:40] Speaker 06:
Well, why would it be an error of law?

[00:17:43] Speaker 08:
It's an error of law because that is what it is being asserted against.

[00:17:49] Speaker 08:
So by analogy to in Ricardo where the court looks at what is in the registration

[00:17:56] Speaker 08:
and not what the party's own product is.

[00:18:01] Speaker 08:
You have to look at what the registration is to determine what's generic.

[00:18:05] Speaker 08:
And here, you have to look by analogy as to what products are alleged to infringe, even if they are different from that which is the trade dress party's product.

[00:18:28] Speaker 02:
Well, let's hear from the other side, and we'll come back to your arguments, Mr. Drivas.

[00:18:34] Speaker 02:
Let's see, you agreed that Mr. Cimino would go next, or how have you arranged it?

[00:18:40] Speaker 07:
Yes.

[00:18:41] Speaker 02:
Is that you?

[00:18:42] Speaker 07:
Yes, thanks a lot.

[00:18:44] Speaker 02:
Okay.

[00:19:18] Speaker 02:
OK, please proceed.

[00:19:19] Speaker 07:
Thank you.

[00:19:20] Speaker 07:
May it please the court?

[00:19:22] Speaker 07:
Judge Stowell, I'd like to start by answering your question.

[00:19:30] Speaker 07:
I don't think it's critical to affirming the ITC's case, but yes, you can recapture a generic mark.

[00:19:38] Speaker 07:
The Fed Circuit's Opryland case that we cited in our brief is expressed about that.

[00:19:46] Speaker 07:
It says that there were questions raised about genericness.

[00:19:52] Speaker 07:
The quote is, Opryland seeks to reopen the question of whether Opry is generic for country music entertainment.

[00:19:58] Speaker 07:
And they were faced with an actual decision that happened about 12 years earlier where Opry was found to be generic.

[00:20:04] Speaker 07:
In the court, the Fed Circuit went on to say, whether OPRAH has been recaptured as a trademark is not the subject of these opposition and cancellation proceedings, which deal with the registrability of Carolina OPRAH marks.

[00:20:18] Speaker 07:
However, OPRAH is not a stop from showing the public perception of OPRAH as a significant component of the marks of issue.

[00:20:25] Speaker 07:
So it was saying, when that is actually looked at, you can introduce evidence

[00:20:30] Speaker 07:
that opry has changed in the uh... minds of the public in twelve years here we're talking about seven years in here we're talking about one of the most famous trade dresses for vehicles uh... in the u.s.

[00:20:43] Speaker 07:
match probably only by the vw bug maybe the porcine eleven uh... so to the extent it was

[00:20:50] Speaker 07:
generic in the nineteen forties it certainly isn't anymore and i get some thought to the question i think you were raising about when you look at this if you take a look at the decision from this court converse it's looking at secondary meaning within the past five years before uh... before infringement so be two thousand eighteen so you know the two thousand ten two thousand eighteen that's when you look for secondary meaning makes sense to look for generic this in that time also and there's no evidence they don't even try to argue

[00:21:19] Speaker 07:
that uh... the jeep trade dress is generic but that's not the the only reason why there's no generic missus this famous trade dress uh... even back in the nineteen forties and nineteen fifties it was not generic despite coming from the military uh... first what what are we talking about we talk about generic miss for words it's pretty easy to understand a wrench a wrench is generic of a particular type of tool it can identify the source who makes the tool

[00:21:46] Speaker 07:
With trade dress, it's a little bit more difficult.

[00:21:48] Speaker 07:
You're looking at the shape.

[00:21:49] Speaker 07:
Is the shape so common and so generalized that it identifies a category of things?

[00:21:57] Speaker 07:
The Henry Cordoa case from this court

[00:22:01] Speaker 07:
actually sets that for it's got to be a common descriptive name of a class of goods for us it means to the six trade dress elements describe a class of goods are they definitional for the case of goods and we introduced evidence uh... and pointed the a l j the i t c to it that no other vehicle ever in the u s use the six elements but ups but cheap and then mehendra of the outside this issue i mean

[00:22:28] Speaker 06:
under our law, the first step is to identify the genus, right?

[00:22:34] Speaker 06:
And did you understand your adversary here to be challenging the SUV selection of the genus by the ITC?

[00:22:44] Speaker 07:
They did.

[00:22:45] Speaker 07:
They did it late.

[00:22:47] Speaker 07:
uh... in their reply brief but uh... they argued that there was a four-by-four military style vehicle that is but the i t c rejected that and they had substantial evidence to rejected the uh... uh... expert further design expert manager of design expert

[00:23:05] Speaker 07:
I'm specifically testified before the ITC that that category did not really exist and he made it up.

[00:23:14] Speaker 07:
I asked him at trial, do you have any industry materials to prove

[00:23:18] Speaker 07:
But that category exists.

[00:23:20] Speaker 07:
This is at appendix 927-0 for reference.

[00:23:24] Speaker 07:
He says, correct.

[00:23:26] Speaker 07:
You don't have any technical dictionary.

[00:23:27] Speaker 07:
Correct.

[00:23:28] Speaker 07:
No auto dictionary.

[00:23:29] Speaker 07:
Also correct.

[00:23:30] Speaker 07:
No textbook.

[00:23:30] Speaker 07:
Correct.

[00:23:31] Speaker 07:
No industry papers.

[00:23:32] Speaker 07:
Not cited.

[00:23:33] Speaker 07:
No.

[00:23:33] Speaker 07:
And you don't cite to even a single document in Mahindra's own files over the last 40 or 50 years that recognize this as an established category.

[00:23:42] Speaker 07:
He says, Mahindra's file, no, I didn't look in their files.

[00:23:45] Speaker 07:
There's no evidence that there is this four-by-four military-style vehicle.

[00:23:49] Speaker 07:
Even if you don't find that, it was waived.

[00:23:50] Speaker 07:
It's not a real defense.

[00:23:52] Speaker 06:
So I'll just ask your adversary the question of assuming we had in front of us the question of what was the correct choice here.

[00:24:00] Speaker 06:
What's our standard of review?

[00:24:01] Speaker 06:
Is that just part of the generic issue and a fact question?

[00:24:05] Speaker 06:
Yes, Your Honor.

[00:24:06] Speaker 06:
Or is it a legal question?

[00:24:07] Speaker 06:
Is there a case that says one way or the other?

[00:24:09] Speaker 07:
well in record over talks about what generic missus and it's a question of fact and it gives the two uh... because the standard isn't so generalized that it uh... identifies a group of goods category of goods and then provides attest you can use to figure that out but they're both the same question

[00:24:28] Speaker 07:
Those are both fact questions.

[00:24:31] Speaker 07:
Is there a genus that the public views as being defined by the word or the six trade dress elements?

[00:24:39] Speaker 07:
And there's none of that evidence here.

[00:24:41] Speaker 07:
Whether you take the genus as SUV, like the ITC.

[00:24:45] Speaker 06:
The selection of the genus drives the inquiry.

[00:24:49] Speaker 07:
Well, that's true, Your Honor.

[00:24:50] Speaker 06:
I mean, once the genus here was drawn to all SUVs, and the game was over, wasn't it?

[00:24:57] Speaker 07:
right but those are established categories in today's market place to ban pickup as she leaves and we introduced significant evidence that the use of our trade dress today is in the s uv jeans but even if you go back to the military there's no genius of military style vehicles they have no evidence of that they say it was a little funny to me there's been no finding there's no there's no finding because there was no evidence of it they argued it at the i t c that i can see the i can see is talking about the evidence that cheap trade dress

[00:25:27] Speaker 07:
there's no evidence that you can address this user perceived as generic in the context of purchasing decisions you really didn't focus on as we didn't have to whether it was generic or not in the nineteen forties right that's right for two reasons one they found that uh... the commission found that the military vehicle which mehendra was arguing was a different market they say it's exactly the same but no the test is for the relevant markets purchasing decisions people are purchasing that willies and be the military vehicle

[00:25:56] Speaker 07:
they are purchasing civilian vehicles.

[00:25:59] Speaker 07:
We started using the six trade elements in 1955.

[00:26:03] Speaker 07:
So the ALJ found that the difference between the 1955 stylized vehicle and the MB was enough to move forward, and there's no evidence of genericness with the 1955 styling.

[00:26:15] Speaker 07:
The commission found that it was two different markets, military versus commercial, and there was nothing in the commercial market.

[00:26:22] Speaker 07:
The overall point of genericness, regardless of what the, even if you say that genus is automobiles back then, they, on page 25 of our opening brief, we put up a red, yellow, and green chart that came from their expert that shows the closest vehicles that are supposed to be military vehicles, and none of them have the Jeep trade dress elements.

[00:26:45] Speaker 07:
None of them have all the Jeep trade dress elements.

[00:26:47] Speaker 03:
And the ITC found that, right?

[00:26:48] Speaker 07:
The ITC found that.

[00:26:49] Speaker 07:
That is evidence to support their decision.

[00:26:54] Speaker 07:
uh... he mentions that nineteen forty eight case the nineteen forty case is not looking at trademark issues or genericness was a false advertising case there is uh... evidence that we said no priest that that two vehicles from the war almost made by willies almost made by four four made a pursuant to license from us if we were in a trademark tribunal who was looking at generic miss in a trademark sense the use by four north to our benefit as uh... as a licensee they were two identical vehicles

[00:27:24] Speaker 07:
The evidence of record was that the Army made the companies pull their brands off of them.

[00:27:30] Speaker 07:
That's the essence of a military vehicle.

[00:27:32] Speaker 07:
They looked identical so they could be changed around.

[00:27:35] Speaker 07:
And the fact that the public couldn't distinguish between the two does not mean that it was generic.

[00:27:39] Speaker 07:
It just means they were making the identical vehicle.

[00:27:42] Speaker 07:
But Mr. Hill, Mahindra's design expert, admitted clear admissions.

[00:27:47] Speaker 07:
No one continued with that vehicle after the war except Willys.

[00:27:51] Speaker 07:
It was stylized in 1955.

[00:27:53] Speaker 07:
uh... to the cj five and only jeep made the cj five those six elements no one made those six elements sense that's not a generic category of no matter how you define it and he was a single vehicle was in the category vehicles fills a category plenty of people would have done it

[00:28:14] Speaker 07:
he didn't want to pick up when i like to turn or cross appeal on the secondary meaning survey their criticism is that included the grill grill is an element of our trade dress defined in detail uh... includes vertical slots and includes the headlight position it's got a trapezoidal shape

[00:28:34] Speaker 07:
uh... that surrounds the headlights in the slots and uh... they were able to argue that they thought that there was problems with our survey to the i t c they did make those arguments to try to double our survey

[00:28:46] Speaker 07:
that the ITC judge said that is subject to cross-examination.

[00:28:52] Speaker 03:
That's not subject to appeal right now.

[00:28:54] Speaker 03:
Nobody's raised that issue.

[00:28:55] Speaker 03:
Right, but I'm just saying they made this argument there.

[00:28:59] Speaker 07:
They heard it and the ITC agreed with our expert that his survey was indicative of

[00:29:05] Speaker 07:
the trade dress elements and wasn't skewed by it.

[00:29:07] Speaker 07:
And, you know, we also tested the Roxor.

[00:29:10] Speaker 07:
The Roxor is a CJ vehicle.

[00:29:12] Speaker 07:
It's a Jeep vehicle with a five-slotted grille.

[00:29:14] Speaker 07:
We got 47 percent confusion rate accepted by the Commission.

[00:29:18] Speaker 07:
Slots don't make a difference.

[00:29:20] Speaker 07:
It wasn't about the seven slots.

[00:29:22] Speaker 07:
The survey for likelihood of confusion of the Roxor itself shows you that you still get high confusion.

[00:29:31] Speaker 07:
You get high confusion even with different slots.

[00:29:34] Speaker 07:
We pointed to the Butler, it was one of their survey experts, the Butler controls.

[00:29:39] Speaker 07:
They ended up changing a bunch of stuff to have a vehicle to use as a control for the survey.

[00:29:44] Speaker 07:
They changed the front end.

[00:29:46] Speaker 07:
It doesn't have seven slots.

[00:29:48] Speaker 07:
They still got 70% degree of Jeep recognition.

[00:29:53] Speaker 07:
So the slots by themselves don't drive recognition of this famous vehicle.

[00:30:02] Speaker 07:
uh... i'd like to turn quickly to the cross appeal as uh... uh... i think the a l j uh... and the commission here made a couple of fundamental errors they're a little bit intertwined so i tried uh... list them but they do affect each other because of this weighted multi-factor test the first one is i'm sure you saw from our briefs is we believe uh... uh... fame was not weighted heavily enough for them uh... for the on the new vehicle it's your view that

[00:30:32] Speaker 03:
uh... when a trade dress is very famous the similarities between the products to show infringement doesn't have to be a significant yes but only because of the kenner case so from the it's the fed circuit to you the uh... the kenner case makes clear in a reversal where the ITC had recognized that as a law you just are not happy with the way they weighed it

[00:30:58] Speaker 03:
Is that correct?

[00:30:59] Speaker 07:
Well, I don't believe they waited at all.

[00:31:01] Speaker 07:
They recognized fame plays an important part.

[00:31:04] Speaker 07:
They said that.

[00:31:07] Speaker 07:
But then they made no findings about the similarities and differences.

[00:31:10] Speaker 07:
They said, we did that in the first infringement analysis.

[00:31:17] Speaker 07:
But in the first infringement analysis, there was no dissimilarities.

[00:31:21] Speaker 03:
They used every element.

[00:31:22] Speaker 03:
They did identify the dissimilarities, right?

[00:31:25] Speaker 07:
They identified the dissimilarities, but they didn't take the similarities, which Kenner says are more important, and weigh them along with the other factors.

[00:31:35] Speaker 07:
And you can see in the commission's opinion, Your Honor, there is not much discussion.

[00:31:39] Speaker 03:
Because there are similarities in the boxy body shape and the door cutouts, right?

[00:31:44] Speaker 07:
Right, but they changed words of these elements, they changed design features to avoid words of the elements, but there are still big parts of those long elements that are still present.

[00:31:53] Speaker 07:
So yes, those are the two that were still there mostly in full, but there is enough of the other parts of the

[00:32:02] Speaker 07:
language of the trade dress to force recognition.

[00:32:05] Speaker 07:
And how do we know that?

[00:32:06] Speaker 07:
We know that from the 19 percent consumer survey that we introduced and was accepted as reliable and credible by the court.

[00:32:14] Speaker 07:
It's the only survey for the redesigned Roxxer, the only one.

[00:32:18] Speaker 07:
We have a 19 percent

[00:32:19] Speaker 07:
confusion survey.

[00:32:20] Speaker 07:
That survey does two things, Your Honor.

[00:32:22] Speaker 07:
One, it tells you that the dissimilarities that the ALJ saw and thought would be meaningful to the consumer were not really that meaningful.

[00:32:31] Speaker 07:
They see that, like the fame analysis, they see the similarities and still recognize Jeep.

[00:32:36] Speaker 03:
So your view is that we pay 19% confusion.

[00:32:40] Speaker 03:
that even though there's other things that are different, like for example, there's other factors that were not found in your favor, even in the first analysis.

[00:32:51] Speaker 03:
For example, where the items are sold, right?

[00:32:55] Speaker 03:
That there was no way for the ITC to have, as the fact finder, we shouldn't be giving them enough

[00:33:05] Speaker 03:
discretion, not only discretion, but review this for substantial evidence.

[00:33:09] Speaker 03:
We should not consider that there's enough substantial evidence, because per se, 19% confusion should be enough for per se finding of likelihood of infringement.

[00:33:20] Speaker 07:
i guess i'm coming i guess i'm going to close to that when i really think it's really hard i mean i i i think i would judge sitting here looking at this is a whole nineteen percent says all i'm supposed to say that per se infringement but here's the issue here i understand your honor here's the issue uh... judges view of the similarities and dissimilarities without objective consumer evidence in a trademark case

[00:33:45] Speaker 07:
should not be a trump card to the rest of the evidence but and that's what happened here nineteen percent survey evidence they just considered all the other factors too and came to a different determination than what you want all the other fact in the first one in this one even in the redesign one the majority of factors still favor

[00:34:01] Speaker 07:
the G brand.

[00:34:03] Speaker 07:
It was 8 to 4 with the G brand and that's with giving the 19 percent survey saying that weighs against us.

[00:34:09] Speaker 07:
There's not a case in this country where 19 percent weighs against the trademark holder.

[00:34:14] Speaker 07:
It has always been found, if it's found credible and reliable, every single case there is, this will be the first one to stand ever where 19 percent weighs against infringement in the 13 factor test.

[00:34:28] Speaker 07:
We have a whole string set of cases

[00:34:30] Speaker 07:
The ones who decided back to us all had issues with their survey.

[00:34:34] Speaker 07:
This is an accepted survey.

[00:34:35] Speaker 07:
But what the survey does, it's not per se.

[00:34:37] Speaker 07:
What we're saying is the survey tells you, well, maybe the judge's subjective view about the degree of changes made to the vehicle, what he thinks the consumer will see, might not be correct.

[00:34:51] Speaker 07:
It's balanced against that objective evidence.

[00:34:53] Speaker 07:
So fine, you don't have to say it's per se infringement.

[00:34:55] Speaker 07:
You can say it weighs in favor, even as neutral.

[00:34:59] Speaker 07:
And then we're nine to three in favor of the infringement.

[00:35:01] Speaker 06:
What do you do if the commission started with the proposition coming out of Converse that in the context of a trade dress case, accused products that are not substantially similar cannot infringe?

[00:35:17] Speaker 06:
That's the sort of their starting analysis.

[00:35:20] Speaker 06:
I agree with that.

[00:35:21] Speaker 06:
That seems to me to wipe out your argument that insufficient amount of weight was given to fame.

[00:35:28] Speaker 06:
How do you... AIM doesn't have anything to do with substantial similarity.

[00:35:32] Speaker 07:
Right.

[00:35:33] Speaker 07:
But it doesn't wait about the argument with respect to the consumer evidence that was of record.

[00:35:38] Speaker 06:
I'm just starting with fame, because that was your primary argument on appeal, wasn't it?

[00:35:43] Speaker 07:
Well, look, if we asserted that you trade dress against the Honda Ford.

[00:35:49] Speaker 06:
What am I to do with a holding from this court that says if there's a finding that these accused products are substantially dissimilar, they can't infringe?

[00:35:58] Speaker 07:
Well, we believe that the finding of substantial similarity is

[00:36:02] Speaker 06:
incorrect and based on his subjective view is contradicted by the and i don't have anything to do with that well whether they're substantially similar has nothing to do with things so i was trying to do it was to take when i understood to be a primary argument as to why it was wrong here

[00:36:20] Speaker 06:
the assessment was that fame hadn't been given enough weight.

[00:36:24] Speaker 06:
And what I'm saying is there's a precedent that suggests that I shouldn't worry so much as you want me to worry about fame.

[00:36:30] Speaker 07:
In the final analysis, that's correct.

[00:36:32] Speaker 07:
Fame should come in and magnify the similarities.

[00:36:36] Speaker 06:
I just wanted to clarify where fame fits in this imprisonment analysis.

[00:36:41] Speaker 07:
It was the ruling for substantial similarity that there was no substantial similarity.

[00:36:44] Speaker 07:
That is contradicted

[00:36:46] Speaker 07:
by the 19% survey, which the commission upheld.

[00:36:50] Speaker 07:
That tells you consumers don't find them so substantially dissimilar that they don't see confusion.

[00:36:56] Speaker 07:
And the judge's subjective view should take into account that objective evidence.

[00:37:00] Speaker 06:
Can I ask a practical question?

[00:37:03] Speaker 06:
In these cases, we tend to have confidentiality marking on everything.

[00:37:07] Speaker 06:
And lots of material is highlighted in yellow throughout.

[00:37:12] Speaker 06:
And frequently, one or more of the judges on the bench will say, is that really

[00:37:17] Speaker 06:
We understand why it may have been in play earlier, but is that going to constrict how we write opinions?

[00:37:23] Speaker 06:
Is this confidentiality marking mutually of significance to you and the other side, or is it just you?

[00:37:31] Speaker 06:
Can you release us from some of this?

[00:37:34] Speaker 07:
If we knew what it was, Your Honor, so I guess that makes it a little difficult.

[00:37:38] Speaker 07:
Certainly, how much we spend on advertising, that is confidential and shouldn't be released to the public.

[00:37:45] Speaker 07:
uh... some of the uh... uh... information i think was mehendra confidential because the vehicle wasn't released yet but i i just don't know there is a a big confidentiality record in i t c cases and i think it's a hard look and it was perhaps some amended documents okay thank you your honor now i don't seem to have an accurate listing of counsel

[00:38:15] Speaker 02:
But have you decided who goes next?

[00:38:18] Speaker 02:
Are you Ms.

[00:38:19] Speaker 02:
Murad?

[00:38:20] Speaker 02:
Yes, Ms.

[00:38:21] Speaker 02:
Murad.

[00:38:21] Speaker 00:
Okay.

[00:38:22] Speaker 00:
Good afternoon, Your Honor.

[00:38:25] Speaker 00:
I'm here on behalf of the Commission.

[00:38:27] Speaker 05:
Can you take your mask off?

[00:38:28] Speaker 05:
Are you arguing for the government?

[00:38:30] Speaker 00:
Yes.

[00:38:30] Speaker 00:
Yes.

[00:38:31] Speaker 05:
Okay.

[00:38:32] Speaker 00:
Sorry.

[00:38:35] Speaker 00:
Yes, I'm arguing on behalf of the Commission.

[00:38:37] Speaker 00:
May it please the Court?

[00:38:38] Speaker 03:
Could you speak up just a little bit, please?

[00:38:41] Speaker 00:
Okay.

[00:38:42] Speaker 00:
I'd like to first address Mahindra's genericness arguments, and they're based on a misapprehension of the record and the conflation of the law of genericness with lack of secondary meaning.

[00:38:58] Speaker 00:
So Mahindra does not really offer any persuasive evidence from 1950s onward concerning genericness.

[00:39:05] Speaker 00:
Nor can they do that, because FCA and its predecessors since World War II and until today were the only company selling the Jeep trade dress in the marketplace, with the exception of Mahindra's infringing work store.

[00:39:20] Speaker 06:
Do you understand the appellant to challenge the jeans?

[00:39:26] Speaker 00:
Yes.

[00:39:27] Speaker 00:
And so on the genus analysis, your honor, Mahindra only tells half of the story.

[00:39:33] Speaker 00:
So first of all, they waived that argument.

[00:39:35] Speaker 00:
They challenged the commission's genus findings.

[00:39:40] Speaker 06:
I'm just asking you.

[00:39:42] Speaker 06:
I mean, the argument was being made on appeal here that the selection of the SUV was legally incorrect.

[00:39:49] Speaker 00:
It was made for the first time in the reply brief at page 32, but not in the opening brief, and that was part of my notes.

[00:39:56] Speaker 00:
So those arguments are waived.

[00:39:58] Speaker 00:
And same thing, they're reliant on the Royal Crown case to argue that only an aspect of the genus is at issue here.

[00:40:06] Speaker 00:
That was also cited for the first time in the reply brief.

[00:40:10] Speaker 00:
And so on the genus issue, they say half of the story.

[00:40:14] Speaker 00:
Yes, the commission found that the relevant genus is the SUV.

[00:40:18] Speaker 00:
And the commission relied on substantial evidence.

[00:40:21] Speaker 00:
Some of it was Mahindra's expert-owned testimony.

[00:40:25] Speaker 00:
That's at Appendix 135, citing Appendix 9271, 9272, and FCA's evidence of more than 30 awards received by the Jeep Wrangler in the SUV category.

[00:40:37] Speaker 00:
That's at Appendix 55121.

[00:40:39] Speaker 00:
But the other half of the story is that the Commission also considered Mahindra as genius, and so Mahindra proposed the 4x4 off-road utility-type vehicles before the Commission, that was at Appendix 6263 and fighting Appendix 12687, 12708.

[00:40:59] Speaker 00:
But there is no evidence that such category exists in the marketplace and in the eyes of the relevant public.

[00:41:05] Speaker 00:
And Mahindra's expert admitted he created that category for purposes of the litigation and without any support from any trade publications or otherwise.

[00:41:13] Speaker 00:
That's at Appendix 9269, 9270.

[00:41:18] Speaker 00:
But the second issue with Mahindra's genus is that it fails the second prong of the genericness test because the deep trade dress does not refer primarily to the genus proposed by Mahindra.

[00:41:30] Speaker 00:
The commission considered the family tree created by Mahindra's expert to illustrate his category of vehicles.

[00:41:36] Speaker 00:
That's at Appendix 28057.

[00:41:39] Speaker 00:
And by the way, that family tree also includes the Willis MB, which is the World War II vehicle.

[00:41:45] Speaker 00:
But he admitted that he included vehicles in that family tree that had nothing to do with the Jeep trade dress other than having a boxy body.

[00:41:53] Speaker 00:
That's at Appendix 9499.

[00:41:56] Speaker 00:
and the Commission cited that at Appendix 56.

[00:41:59] Speaker 00:
So even assuming that Mahindra's alleged genus is correct, the cheap trade dress does not refer primarily to that genus, so as to be generic.

[00:42:08] Speaker 00:
Now I want to come back to Mahindra's argument that the World War II vehicle is generic.

[00:42:14] Speaker 06:
That argument is incorrect, because they rely on a... Is it incorrect or unsupported or what?

[00:42:23] Speaker 00:
It's unsupported, Your Honor, because for a trade dress to be generic, it has to be so common and used by third parties.

[00:42:30] Speaker 00:
There is no widespread use ever here.

[00:42:32] Speaker 00:
In the 1948 FTC decision, the FTC, first of all, has no authority to adjudicate genericness under the FTC Act.

[00:42:40] Speaker 00:
and says nothing about generic.

[00:42:42] Speaker 00:
Rather, it found that Willis Overland, which is FCA's predecessor, engaged in false advertising when it claimed sole credit for the wartime success of the World War II vehicle.

[00:42:53] Speaker 00:
But importantly, the FTC decision shows the opposite of genericness.

[00:42:57] Speaker 00:
During the war, only two companies manufactured the World War II vehicle for the army, and those were Willis Overland,

[00:43:04] Speaker 00:
and forward a compulsory licensing of release over it.

[00:43:08] Speaker 00:
So at best, the FTC suggests that the World War II vehicle may have lacked secondary meaning during the war, but not that it was generic.

[00:43:17] Speaker 00:
In fact, there is no evidence in the FTC decision or otherwise of any widespread use by third parties so as to make the World War II vehicle and much less the cheap trade dress generic.

[00:43:29] Speaker 03:
So as the Commission... So your argument is that

[00:43:32] Speaker 03:
It was never generic at any time, and it's not generic now.

[00:43:36] Speaker 01:
That's your argument.

[00:43:37] Speaker 03:
That's correct, Your Honor.

[00:43:38] Speaker 03:
Do you have a view or position on even if something was generic?

[00:43:43] Speaker 03:
I'm not saying it is, but even if it was, that doesn't mean that it can't acquire secondary meaning or become non-generic 70 years later.

[00:43:53] Speaker 00:
Yes, Your Honor.

[00:43:54] Speaker 00:
And there are cases on that, actually.

[00:43:56] Speaker 00:
There is the Singer case, where Singer, I think,

[00:44:02] Speaker 00:
It's in McCarthy.

[00:44:04] Speaker 00:
Hold on just a second, I can tell you exactly where it is.

[00:44:22] Speaker 00:
They discussed two cases.

[00:44:23] Speaker 00:
One is the Singer case.

[00:44:25] Speaker 00:
It's sections 1230 to 1232.

[00:44:33] Speaker 00:
What is the slide?

[00:44:37] Speaker 00:
McCarthy, sections 12.

[00:44:38] Speaker 04:
Is there a case?

[00:44:40] Speaker 00:
Yeah, and they discuss a couple of cases in there.

[00:44:42] Speaker 04:
Were these cases in your brief?

[00:44:45] Speaker 00:
We cite to McCarthy, sections 1230 and 1230.

[00:44:50] Speaker 06:
McCarthy makes a statement that says you can retrieve a generic patent with secondary meaning later on.

[00:44:58] Speaker 00:
Yes, they discuss a couple of cases where the trademark lost trademark status.

[00:45:05] Speaker 06:
Is it typical that you cite a treatise instead of the cases?

[00:45:10] Speaker 06:
I'm confused.

[00:45:10] Speaker 00:
No, we also cited other cases, Your Honor, that recognize that a trademark can regain the trademark status.

[00:45:20] Speaker 00:
We cited, for example, the Harley-Davidson case, which recognized that proposition.

[00:45:26] Speaker 03:
Are you talking about the Singer

[00:45:29] Speaker 03:
vs. Breyley case that's actually cited in FCA's brief.

[00:45:35] Speaker 03:
It's a Fifth Circuit case decided in 1953.

[00:45:37] Speaker 00:
Is that the case you're referring to?

[00:45:41] Speaker 03:
And you think that that case says expressly that

[00:45:45] Speaker 03:
even if a mark is generic, it can become non-generic later?

[00:45:49] Speaker 00:
I believe so, Your Honor.

[00:45:52] Speaker 00:
That's what I believe.

[00:45:55] Speaker 00:
I'm not sure if that's the case that Seif said, but I believe that at least McCarthy states that Singer is a brand that has lost trademark status and was found to be generic, but later regained trademark status.

[00:46:09] Speaker 03:
It's generally better to give us the cases anyway and know about the cases.

[00:46:13] Speaker 00:
And Harley Davidson also is a case that recognized that trademark status can be regained even after a finding of genericness.

[00:46:22] Speaker 00:
And Mahidra distinguishes that case by saying, well, in Harley Davidson, it specifically discusses that you can only regain trademark status if you were a proper trademark at the beginning.

[00:46:37] Speaker 00:
But this trademark was generic.

[00:46:39] Speaker 00:
at the outset.

[00:46:41] Speaker 00:
But this is not true, Your Honor.

[00:46:43] Speaker 00:
This trade dress was never generic at the outset, and famous does not mean generic, Your Honor.

[00:46:52] Speaker 02:
So are you distinguishing between trademark law and trade dress law?

[00:46:59] Speaker 00:
So we understand that under trademark law, the test that was, for example, proposed in Ray Cordova and in Marvin Jean,

[00:47:10] Speaker 00:
seems to apply more easily to a wordmark rather than to a trade dress.

[00:47:16] Speaker 00:
And we cited to McCarthy again that collected some cases where it stated that for the trade dress, it's more easy to understand genericness in the context of, for example, is it a common design?

[00:47:29] Speaker 00:
Two of these cases that were cited in McCarthy and they're also cited in our brief

[00:47:33] Speaker 00:
are, for example, the Malaco case, where they give the example of gummy-shaped candy, gummy fish-shaped candy.

[00:47:43] Speaker 00:
And they said, it's so common in the industry.

[00:47:45] Speaker 00:
The use is so widespread.

[00:47:47] Speaker 00:
There are so many competitors that use it that it's become generic.

[00:47:52] Speaker 00:
There's another case that discusses green 12-ounce cans.

[00:47:57] Speaker 00:
It's the Paddington case.

[00:47:58] Speaker 00:
It's also cited in our brief.

[00:47:59] Speaker 00:
And in that case, they say, well, the green 12-ounce cans is so common in the soft drink industry, it's generic.

[00:48:08] Speaker 00:
So those are cases that discuss genericness in the context of trade dress.

[00:48:13] Speaker 00:
But the commission did both.

[00:48:14] Speaker 00:
The commission found it's not so common as to be generic.

[00:48:17] Speaker 00:
That's at Appendix 126.

[00:48:19] Speaker 00:
And the commission also went through the in-record DOA test of looking at the first step and defining the genus and then determining whether

[00:48:26] Speaker 00:
The trade dress at issue refers primarily to the genus, so as to be generic.

[00:48:37] Speaker 00:
I'm going to turn now to secondary meaning, which is Mahindra's second issue on appeal.

[00:48:44] Speaker 00:
Mahindra's arguments on that issue lack legal support and ignore seven years of efforts by FCA and its predecessors to cultivate secondary meaning in the cheap trade dress.

[00:48:55] Speaker 00:
The Commission's determination on secondary meaning is based, as I said, on seven years of exclusive use, extensive advertising and sales, numerous awards, unsolicited media coverage, and an intent to copy by Mahindra.

[00:49:09] Speaker 00:
And Mahindra also credited the FCA's expert survey evidence, which showed a 55.7 net percentage of survey respondents who associate the Jeep trade dress with the Jeep brand.

[00:49:20] Speaker 00:
On the other hand, the Commission assigned no weight to Mahindra's survey evidence on secondary meaning, and Mahindra does not appeal this determination.

[00:49:29] Speaker 00:
That's at Appendix 144 and 145.

[00:49:32] Speaker 00:
So the Commission found that each of the converse factors weighs in favor of secondary meaning, and the Commission should decline Mahindra's invitation to reweigh the evidence of record.

[00:49:43] Speaker 00:
I just want to make clear that the trade dress that was tested in the survey, that's the entire trade dress.

[00:49:49] Speaker 00:
It's not just a grill, as Mahindra suggests.

[00:49:52] Speaker 00:
The survey images at Appendix 51015, they show side and corner views of the entire Jeep vehicle.

[00:50:02] Speaker 00:
Dr. Isakson, who was FCA's expert, testified at Appendix 8882 that he tested all the six trade dress elements together and he did not just focus on the grail.

[00:50:17] Speaker 00:
As to likelihood of confusion, a simple examination of the vehicles that are at issue in this appeal demonstrates the correctness of the Commission's determination.

[00:50:28] Speaker 00:
The side-by-side images reproduced at pages 4 and 5 of the Commission's brief show substantial similarity with the original Rokeshore and a very low degree of similarity with the redesigned Rokeshore.

[00:50:41] Speaker 00:
FCA incorrectly argues that its fame outweighs lack of similarity.

[00:50:46] Speaker 00:
There is no support for that argument.

[00:50:48] Speaker 00:
To the contrary, this court held in converse, and it is binding precedent for the Commission, that lack of similarity is dispositive.

[00:50:56] Speaker 00:
And that was not the only factor supporting the Commission's determination as to lack of likelihood of confusion.

[00:51:02] Speaker 00:
The Commission also relied on substantial evidence negating confusion, including unsolicited press and social media reactions to the redesigned rogue source.

[00:51:11] Speaker 00:
That's Appendix 220, signed in Appendix 73-200 to 73-208, and 73-260 to 73-266.

[00:51:21] Speaker 00:
And finally, I'd just like to point the court to two appendix pages where the Commission specifically addressed things.

[00:51:29] Speaker 00:
That's Appendix 72 in the initial final determination by the ALJ, and Appendix 217, which was the Commission modification decision.

[00:51:40] Speaker 00:
as to the work zone.

[00:51:42] Speaker 00:
I'll be happy to answer any questions.

[00:51:45] Speaker 02:
Thank you, Your Honor.

[00:51:47] Speaker 02:
Thank you.

[00:51:48] Speaker 02:
Again, my notes aren't clear.

[00:51:54] Speaker 04:
Would you like a few minutes of rebuttal?

[00:52:17] Speaker 02:
All right, we've been running over.

[00:52:19] Speaker 02:
Let's make it five minutes.

[00:52:21] Speaker 08:
Thank you, Your Honor.

[00:52:23] Speaker 08:
As Judge Cleverins has stated, converse tell that substantial similarity is a prerequisite for finding a trade dress in print.

[00:52:33] Speaker 08:
And substantial evidence supports the IPC's finding that the post-2020 rock sore is not substantially similar to the Jeep trade dress.

[00:52:45] Speaker 08:
There are at least

[00:52:46] Speaker 08:
Four of the five elements resided in the Jeep trade dress that are not present in the post 2020 Rockstar.

[00:52:54] Speaker 08:
Anybody looking at that vehicle could not confuse it with the Jeep.

[00:53:01] Speaker 08:
The media reports call it something from outer space, something from the Jetsons.

[00:53:06] Speaker 08:
It does not compare to a Jeep trade dress at all.

[00:53:12] Speaker 03:
The only question though really is whether there's substantial evidence to support the finding made by the ITC, right?

[00:53:20] Speaker 08:
Correct.

[00:53:21] Speaker 08:
Yes.

[00:53:22] Speaker 08:
And there is substantial evidence.

[00:53:23] Speaker 08:
There is certainly the appearance of the vehicle itself and the ITC and the ALJ went through element by element and discussed the differences between the post-2020 rock sort and the Jeep trade dress.

[00:53:40] Speaker 08:
The only thing that

[00:53:42] Speaker 08:
FCA now tells us to look at is the back of the vehicle and they say it has a tub.

[00:53:48] Speaker 08:
Well, the tub is nowhere in the cheap trade dress.

[00:53:50] Speaker 08:
It's not mentioned in the cheap trade dress.

[00:53:53] Speaker 08:
The whole direction of the cheap trade dress is the front of the vehicle.

[00:54:00] Speaker 08:
The grill, the headlights, the front fenders, all those are off the post 2020 rock store.

[00:54:07] Speaker 08:
None of them appear there.

[00:54:09] Speaker 08:
And going back to

[00:54:11] Speaker 08:
FCA's argument as to how the CJ 1955 CJ-5 vehicle was distinguished from the previous CJ's pre-1955, the only difference was extension of the front fender beyond the grip.

[00:54:31] Speaker 08:
And that, they argued, was sufficient to remove them from that previous vehicle trade dress.

[00:54:38] Speaker 08:
The post 2020 rock saw has no such fender.

[00:54:42] Speaker 08:
It doesn't have a grill that's vertical.

[00:54:45] Speaker 08:
It has this moonshot grill with the headlights on opposite sides.

[00:54:50] Speaker 08:
It is totally different from anything in the cheap trade dress.

[00:54:55] Speaker 08:
Turning to FCA's argument that the consumer survey showing 19% confusion, that is simply not sufficient.

[00:55:07] Speaker 08:
And our brief at page 24 and 25 refers to McCarthy's section, which says that if the survey evidence is less than 20%, other factors must be considered and weighed.

[00:55:21] Speaker 08:
And we cite a whole series of cases that hold that specifically.

[00:55:27] Speaker 08:
And a 19% likelihood of confusion in view of no substantial similarity is not anything to be credible.

[00:55:35] Speaker 03:
Let's say that survey evidence, I just want to discuss this argument for a minute.

[00:55:44] Speaker 03:
Let's say the survey evidence was 21%.

[00:55:47] Speaker 03:
Then I'm supposed to follow McCarthy and have a different result.

[00:55:51] Speaker 03:
Is that your position?

[00:55:53] Speaker 08:
No, I think 21% is still not sufficient.

[00:55:58] Speaker 08:
You must wait for all the facts

[00:56:00] Speaker 08:
And the factors here were waived, including the alleged fame of the Jeep trade dress.

[00:56:06] Speaker 08:
The ALJ and the ITC considered all of them.

[00:56:09] Speaker 08:
But really, looking at this vehicle, I don't see how anybody can say with all these design changes that this could be substantially similar to the Jeep trade dress.

[00:56:21] Speaker 03:
Was there also evidence that

[00:56:24] Speaker 03:
You know, evidence, I guess, previously, before the design around, there had been evidence of emails and different things from consumers or pictures that showed the Roxor device with the Jeep sign.

[00:56:39] Speaker 03:
Was there evidence, do I recall, that there might have been evidence that people were no longer confused?

[00:56:45] Speaker 03:
Like, in terms of emails and different things from consumers or the purchasing public?

[00:56:51] Speaker 08:
There were emails, there were

[00:56:54] Speaker 08:
reports in the media, in blogs, in the websites that track these UTVs, and in the media, in trade magazines, saying how different the post-2020 Roxor was from the previous Roxor, and certainly not looking like a Jeep anymore.

[00:57:13] Speaker 08:
If I could just turn back to the issue of whether we raised the genus issue in our initial brief, that page 401,

[00:57:24] Speaker 08:
We state the assertive trait of this is generic because the design tells the consumer what it is.

[00:57:31] Speaker 08:
A member of the category of rugged four-wheel drive military-style vehicles known as jeeps that multiple automakers popularized following World War II.

[00:57:44] Speaker 08:
So we did raise it in my view, and I think it would be

[00:57:53] Speaker 08:
Certainly a terrible precedent to find that the post-2020 rock sort infringes the Jeep trade dress.

[00:58:01] Speaker 08:
That would be contrary to the Supreme Court's cautioning of trade dress protection for unregistered trade dress in wall-bottom traffic.

[00:58:10] Speaker 08:
And this court should affirm the ITC in finding the post-2020 rock sort does not infringe and should also find that the Jeep trade dress is

[00:58:23] Speaker 08:
generic because it covers a subcategory of generic pieces.

[00:58:28] Speaker 08:
Thank you.

[00:58:31] Speaker 02:
Okay, thank you.

[00:58:32] Speaker 02:
Now let me see, to keep this straight, Mr. Cimino, you'd asked for some rebuttal.

[00:58:38] Speaker 02:
Do you still need rebuttal time?

[00:58:40] Speaker 04:
Yes, Your Honor.

[00:58:41] Speaker 02:
Okay, let's make that four minutes.

[00:58:43] Speaker 04:
Thank you, sir.

[00:58:59] Speaker 07:
Thank you, Your Honor.

[00:59:03] Speaker 07:
So a second on the standard.

[00:59:05] Speaker 07:
So these factors are viewed for substantial evidence.

[00:59:09] Speaker 07:
But the weighing of the factors is de novo, sort of like obviousness.

[00:59:13] Speaker 07:
So for our cross appeal on the redesigned Roxer, fame was found that's found in our favor.

[00:59:19] Speaker 07:
But the weighing of fame with the other factors is done de novo.

[00:59:23] Speaker 07:
The survey evidence, that was found to be 19%.

[00:59:26] Speaker 07:
That goes into the weighing.

[00:59:28] Speaker 07:
We think it was weighed wrong by discounting it.

[00:59:31] Speaker 07:
And really, we think it was weighed wrong by discounting it as a matter of law.

[00:59:34] Speaker 07:
The McCarthy site that says when they're under 20, look at other factors, two points there.

[00:59:41] Speaker 07:
It has no site.

[00:59:42] Speaker 07:
I asked the court to follow that back and see what McCarthy's citing for that.

[00:59:46] Speaker 07:
The sentence actually says, in the author's opinion, when it's lower than 20, go back.

[00:59:51] Speaker 07:
It's an unsighted statement.

[00:59:53] Speaker 07:
And his next statement, when he does have a site, cites to another treaties by a scholar named Ford,

[01:00:01] Speaker 07:
who disagrees with them.

[01:00:03] Speaker 07:
If you look through that older publication, it says McCarthy says under 20 should be viewed in view of other factors.

[01:00:10] Speaker 07:
That's wrong for two reasons and explains why it's wrong.

[01:00:12] Speaker 07:
All the factors should always be looked at.

[01:00:14] Speaker 07:
Second, McCarthy says under 20, look at other factors.

[01:00:17] Speaker 07:
We have other factors here.

[01:00:19] Speaker 07:
Same type of goods.

[01:00:20] Speaker 07:
That was found in our favor.

[01:00:21] Speaker 07:
They can't change that.

[01:00:22] Speaker 07:
That was called a dominant factor in the first one.

[01:00:25] Speaker 07:
Fame is a dominant factor.

[01:00:27] Speaker 07:
The survey of 19% should have been a dominant factor.

[01:00:31] Speaker 07:
when you weigh it all.

[01:00:32] Speaker 07:
We have the majority of factors in our favor.

[01:00:35] Speaker 07:
So when McCarthy says, look at the other factors, OK.

[01:00:38] Speaker 07:
But what happened was the substantial similarity factor acted as a trump card.

[01:00:43] Speaker 07:
And here's the problem with that.

[01:00:45] Speaker 07:
uh... there is no evidence as to the impact on those changes the differences that the a l j notice when looking at the trade dress like a patent claim he said this is different this is different this is different he has no basis or competency to say what the effect of those changes are

[01:01:04] Speaker 07:
on the consuming public.

[01:01:06] Speaker 07:
If there's no survey evidence, well then we take the judge's best guess for it in view of the other factors.

[01:01:11] Speaker 07:
But here, FCA introduced specific evidence that was credited, found reliable, and it stands alone.

[01:01:18] Speaker 07:
They don't have a counter survey.

[01:01:20] Speaker 07:
That shows one in five people confused the new Roxxer with the Jeep trade dress.

[01:01:26] Speaker 07:
And we know from the law in this entire country

[01:01:29] Speaker 07:
15% is the general number.

[01:01:32] Speaker 07:
Above 15% is confusion.

[01:01:34] Speaker 07:
When you have a survey above 15%, the courts say that's evidence of confusion.

[01:01:38] Speaker 07:
Here we have 19% and it was found against us.

[01:01:42] Speaker 07:
uh... you you did ask about the there was no emails there is uh... some social media comments where they say it's different in this month but you'll see the picture in our brief your honor it was a teaser uh... picture that covered up the entire vehicle except the front grill which is the thing that's different it didn't show from the side of the insured from three course of course they found it was

[01:02:05] Speaker 07:
different you can uh... uh... uh... that is not substantial evidence of the overall uh... appearance is the same he said anybody could tell the difference just looking at it not true the evidence of record is nineteen percent of the people can't tell the difference nineteen percent it'll be the only case uh... only trademark case for nineteen percent accepted survey stands and uh... vehicle a product is still allowed to be made and again you can look at that the novel in the weighing of all the elements magnified uh... magnified by fame

[01:02:34] Speaker 07:
And finally, I will say that even if you accept all the factors, the way the ITC did them, it's still eight to four in our favor.

[01:02:43] Speaker 07:
That shows how much of a finger was on the scale of the ALJ's decision that they were different, with no evidence of what those differences may mean to the consuming public, which is what this 13-factor test is supposed to tell us.

[01:02:55] Speaker 07:
It's supposed to tell us that his decision cannot be correct when you have a valid acceptance.

[01:03:00] Speaker 07:
Either our survey's wrong,

[01:03:02] Speaker 07:
uh... and he's right or he was wrong and our surveys correct they both can't be correct so we would ask that uh... the court either reverse or remand for uh... uh... analysis of fame acceptance of the survey that factors in our favor uh... and uh... to find uh... roxer the redesign roxer and friends thank you your honor thank you thanks to all the council the case is taken on your submission