[00:00:00] Speaker 01:
Our next case is number 21-2209, Minoxi Enterprise Inc.

[00:00:05] Speaker 01:
versus the Coca-Cola Company.

[00:00:08] Speaker 01:
Okay, Mr. Mandel.

[00:00:11] Speaker 02:
Good morning.

[00:00:11] Speaker 02:
May it please the court.

[00:00:13] Speaker 02:
I'm Richard Mandel of Cowan, Leibowitz & Lattman, and I represent the appellant, Minoxi Enterprise.

[00:00:20] Speaker 02:
The central issue we raise on this appeal is the effect of the territoriality doctrine on a cancellation claim under section 14.3 of the Lanham Act.

[00:00:30] Speaker 02:
As this court and numerous other courts have recognized, the concept of territoriality is basic to trademark law.

[00:00:38] Speaker 02:
Under that doctrine, trademarks have a separate existence and goodwill in each country, so that the rights and recognition a mark may have established in one country, such as, for example, in this case, India, did not automatically extend to the United States.

[00:00:56] Speaker 02:
The board's decision below ignored that principle by basically relying on evidence that was almost exclusively about Coca-Cola's reputation in its thumbs up and limp demarks in India and applying that to cancel Minoxi's US registrations.

[00:01:14] Speaker 04:
What about the evidence that the board and the fact findings made by the board showing that there are

[00:01:24] Speaker 04:
purchasers in the U.S.

[00:01:26] Speaker 04:
who are familiar with the Coca-Cola company's Thumbs Up and Lime Cup products and that those products are in fact sold in the U.S.

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or available in the U.S.

[00:01:40] Speaker 02:
So our position on that is that those findings are not supported by substantial evidence.

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And I think the clearest way you can see that, Coca-Cola lays out at page 53 of its brief exactly what the bases were for that finding by the board.

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that the reputation would be familiar to most of the Indian American community in the United States.

[00:02:06] Speaker 02:
And so let's look at what that is.

[00:02:08] Speaker 01:
Well, let's first assume that the board's findings are sustained.

[00:02:15] Speaker 01:
I think Judge Stoll was asking under those circumstances, is there a reputational injury?

[00:02:21] Speaker 02:
well itself that there are two questions here that i i think we have to look at i mean one is if there is a reputation in the united states is that enough to state a claim and and that's kind of a difficult question to be honest because coca-cola doesn't take on exactly what level of reputation or recognition is necessary and you know when you think about it

[00:02:44] Speaker 02:
Even a famous mark, so a mark that's not used in the US but that has achieved fame here just based on its foreign reputation, is generally not protected in the United States.

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There is a quibble between the courts on that.

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The Second Circuit says it's not.

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The Ninth Circuit says it can be if it's famous.

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But here we conceivably don't have that.

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Coca-Cola says these marks are not famous in the United States.

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Nobody is claiming that.

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So there is a difficult question about some minimal level of recognition among some subset of the population.

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Is that enough to state a claim under the Lanham Act?

[00:03:21] Speaker 02:
That's a tough question.

[00:03:22] Speaker 02:
I don't know what the answer is to that.

[00:03:25] Speaker 02:
But I don't think we have to get there, because the bottom line is there is not substantial evidence supporting the finding that there is a reputation here.

[00:03:33] Speaker 02:
And if I can return to what Coca-Cola points to there, so it points to five things that it says support it.

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And four of those things clearly have nothing to do with the United States.

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So it's the fact that it's registered in India and abroad.

[00:03:48] Speaker 02:
OK, so what?

[00:03:49] Speaker 02:
Doesn't mean anybody knows that here.

[00:03:51] Speaker 02:
Substantial market share in India, again, that just means that it's popular in India.

[00:03:57] Speaker 02:
It doesn't go to its recognition here.

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Impressive sales numbers is the same thing.

[00:04:02] Speaker 02:
There's no sales here in the US that have been authorized by Coca-Cola.

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Substantial promotional investment is non-existent in the United States because what they're talking about, their prominent Hindu movies

[00:04:15] Speaker 02:
Bollywood celebrities, A-list Indian actresses.

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This is all advertising directed to India.

[00:04:21] Speaker 02:
And yeah, they have a couple of websites that technically somebody could access in the US.

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But as this court kind of pointed out in Newbridge Cutlery, that's not enough.

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I mean, just saying something's on the internet doesn't establish that people know it or that it's recognized.

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So really, the only thing that they have to point to is the sales.

[00:04:41] Speaker 02:
Let's look at what that evidence actually is.

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It's gray market goods.

[00:04:45] Speaker 02:
It's not goods that Coca-Cola has.

[00:04:47] Speaker 01:
Well, that's not quite true.

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I mean, as to the thumbs up product that is sold at these two Coca-Cola stores.

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I guess that after Monoxys established its registrations,

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It's offered in samplings where if you go into the Coca-Cola exhibit in Atlanta and they have all the drinks around the world that they offer, somebody could go there and taste it.

[00:05:13] Speaker 02:
But it's not being sold.

[00:05:15] Speaker 01:
Since it's a fairly relaxed standard for standing, as to the thumbs up brand only, why isn't that sufficient to create a reputational injury?

[00:05:27] Speaker 02:
uh... because i i think we're talking about uh... the selection of its foreign markets that foreign products that are being made available to the public as a point of interest when it when you go into seen exhibit it's not it's not sales it's not like they're actually exploiting the product and what was the comes up is being sold it is that whether it's actually being sold i i i don't know the records a little unclear on that i think it can be sampled

[00:05:55] Speaker 02:
I know from when I go into Atlanta.

[00:05:57] Speaker 04:
You would agree that they're using the thumbs up mark, it might not be registered in the US, but they're using it in the US at World of Coca-Cola, right?

[00:06:06] Speaker 02:
I don't agree, actually.

[00:06:08] Speaker 02:
Well, I mean, I guess if you think that the fact that somebody can go into an exhibit and as an incidental point of interest, they can sample the product while they're at the Coca-Cola exhibit in one location or two locations,

[00:06:22] Speaker 03:
I don't know if that's really trademark usage.

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Why wouldn't that type of activity constitute use under the landmark?

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There's very little that's in there to actually be able to see what it is, that evidence.

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I mean, it's not focused on much by Coke, and it's free.

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It's not a high standard, is it?

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Well, to establish use, there has to be bona fide use in commerce.

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I mean, we don't really know much about what they're doing there.

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I mean, I don't know that you can actually go buy it in a can and take the product.

[00:06:49] Speaker 02:
There's no evidence to suggest you can.

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I think you can get a sampling of foreign drinks, and it's one of them there.

[00:06:56] Speaker 04:
So there's more evidence of use here, at least for thumbs up, than there was in the Belmore case, right?

[00:07:07] Speaker 02:
Well, you know, it's an interesting point on Belmore.

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Because I think in Belmore, if we're looking at the actual injury point,

[00:07:16] Speaker 02:
In Balmora, what the court pointed out is that you had substantial sales in major cities very close to the US and Mexico border and advertising directed at that region.

[00:07:28] Speaker 02:
So in terms of the US-Mexican sales in that case.

[00:07:32] Speaker 02:
Right, but it was literally right on the border with evidence that people- The difference depending on the location of the country.

[00:07:39] Speaker 02:
Well, I think it's relevant because we're talking about injury and what the- Even where there's so much global movement.

[00:07:45] Speaker 02:
well here we're talking about eight thousand miles apart and and but people travel back and forth people travel but but but there's no evidence of of any substantial sales i mean for limca there's no evidence of any sales really other than the fact that they put in a couple of affidavits that showed three websites where

[00:08:07] Speaker 02:
It looks like the product is shown on the website.

[00:08:11] Speaker 02:
We don't have any evidence that any sales were actually made.

[00:08:14] Speaker 02:
These are gray market goods, as far as we can tell.

[00:08:18] Speaker 02:
We know that one shipment, the only actual sales that they talk about in the record where there's actual proof of some sales being made with respect to Linca,

[00:08:28] Speaker 02:
uh... is this one sale that took place to grace imports that you know apparently was outside the authorized chain of distribution because the distribution agreement that coca-cola put in evidence was limited to india and apparently one of its distributors sold some small quantity fifteen hundred dollars worth of goods that included limca and thumbs up into the u.s.

[00:08:51] Speaker 02:
apparently unauthorized and it got seized and apparently never was sold to consumers because of the noxies registration

[00:08:58] Speaker 02:
But I don't see how that establishes injury for Coca-Cola.

[00:09:03] Speaker 02:
I mean, honestly, most brand donors are trying to stop brain market goods from being sold.

[00:09:07] Speaker 04:
If not Coca-Cola, who has standing in this case to bring in action under the statute of issue in this case, if not Coca-Cola?

[00:09:19] Speaker 02:
Well, I don't think anybody doesn't, because I don't think there's any violation under this statute.

[00:09:25] Speaker 02:
I don't think there's any.

[00:09:26] Speaker 04:
But that's not the requirement.

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I mean, you have to prove your case when you want to have a case.

[00:09:31] Speaker 02:
So if we're talking about standing right, I mean, Coca-Cola would be the party theoretically who has standing, but I don't think they do on these facts.

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Because in the end, what we're talking about

[00:09:44] Speaker 04:
is far and trade basically and in the end i think what we're talking about we're talking about misrepresentation of the source of the good it doesn't matter if that

[00:09:55] Speaker 04:
the producer of that good has a trademark or not.

[00:09:59] Speaker 04:
There's nothing in the statute that talks about that.

[00:10:01] Speaker 02:
But I think it matters in this sense.

[00:10:02] Speaker 02:
Even Coca-Cola seems to acknowledge.

[00:10:05] Speaker 02:
I mean, look, one could take the position that it's enough that you misrepresent the goods by selling a foreign product in the US that's owned by somebody in another country.

[00:10:17] Speaker 02:
Coca-Cola seems to be saying, no, that's not the case.

[00:10:20] Speaker 02:
The board decision didn't rest on just the fact that we had

[00:10:24] Speaker 02:
an Indian trademark.

[00:10:25] Speaker 02:
Now, I guess one could read the statute literally and say, OK, it's a misrepresentation of source because the proper source is that Indian mark.

[00:10:34] Speaker 02:
But to do that is essentially to ignore the territoriality principle.

[00:10:39] Speaker 04:
How is it that the statute is seeking to protect?

[00:10:42] Speaker 04:
Is it consumers?

[00:10:44] Speaker 02:
It's seeking to protect both consumers and trademark owners.

[00:10:49] Speaker 04:
But it's only seeking to protect trademark owners.

[00:10:53] Speaker 04:
It's not.

[00:10:54] Speaker 04:
It's not.

[00:10:54] Speaker 04:
No, it's probably the publisher of the good.

[00:10:56] Speaker 04:
The public, too.

[00:11:01] Speaker 04:
I mean, why?

[00:11:02] Speaker 04:
Your view is that it's not intended to protect Coca-Cola because Coca-Cola's

[00:11:09] Speaker 04:
Mark only exists outside the United States.

[00:11:11] Speaker 02:
Yes.

[00:11:12] Speaker 02:
And that's consistent with it.

[00:11:14] Speaker 02:
I don't think that's a radical position.

[00:11:16] Speaker 02:
If we look at trademark law, I really think it's Bill Mora that is outside the mainstream when you look at it and look at the territoriality doctrine.

[00:11:25] Speaker 02:
I mean, the bottom line is that we don't protect Mark's

[00:11:28] Speaker 02:
in the United States based on their foreign reputation, even when they're famous.

[00:11:33] Speaker 02:
So to say that you should protect a mark that's admittedly nowhere near that level of recognition, based on some incidental gray market goods that happen to find their way into the country, where there's no evidence.

[00:11:47] Speaker 04:
So you're not convinced at all by the evidence that the mark was not famous, but well known in India, and that there is a good percentage

[00:11:59] Speaker 04:
uh... american indians in the u.s.

[00:12:02] Speaker 02:
were familiar with i think what's lacking is the nexus between the recognition in india and the recognition here in the u.s.

[00:12:11] Speaker 02:
basically what the board and coca-cola are saying is it's it's well known in india there are a lot of indian americans therefore it must be well known to indian americans here but they didn't show that there's no survey evidence to show that there's no advertising there's no promotion here

[00:12:28] Speaker 02:
is is when you're looking at standing should inferences made in favor of the party that's seeks trying to prove standing well i i think they need to show that they fall within the zone of interest that congress was intended to protect and i don't think that congress was looking to protect foreign trademark owners

[00:12:45] Speaker 02:
with marks that have not established US recognition.

[00:12:49] Speaker 02:
And I think there's really no nexus on injury.

[00:12:53] Speaker 02:
I mean, if you look at this.

[00:12:54] Speaker 04:
Does this really come down to whether this is a mark that has recognized US recognition?

[00:13:00] Speaker 02:
I think it does, by Koch's acknowledgment, I would say it does.

[00:13:03] Speaker 02:
And the board seems to be saying it too, because nobody seems to be saying, I don't understand Koch to be saying,

[00:13:10] Speaker 02:
It's enough that we own this mark in India.

[00:13:12] Speaker 02:
It's well-known in India.

[00:13:13] Speaker 02:
We can protect it in the US.

[00:13:15] Speaker 02:
They're not saying that.

[00:13:16] Speaker 02:
Is that the well-known mark doctrine?

[00:13:18] Speaker 03:
But wasn't that waived?

[00:13:21] Speaker 02:
They're not pursuing that.

[00:13:23] Speaker 02:
And I think it's waived because they know they can't meet that standard.

[00:13:25] Speaker 02:
That's a very high standard.

[00:13:27] Speaker 02:
suggesting that their mark is famous in the United States.

[00:13:30] Speaker 04:
You're not suggesting that the only way the mark could be known in the United States would be if it were famous, right?

[00:13:36] Speaker 02:
No, I'm not.

[00:13:37] Speaker 02:
But there is a question.

[00:13:39] Speaker 02:
If we're not even willing to protect famous marks in the United States, there's a serious question about what level of recognition is necessary to protect a mark that conceivably is way below that threshold.

[00:13:51] Speaker 04:
Where do you come up with the idea that we're not willing to protect marks that are famous?

[00:13:56] Speaker 02:
Well, the Second Circuit's decision in ITC says that... In persons, we seem to suggest... Persons don't interrupt.

[00:14:07] Speaker 01:
Yeah, I'm sorry.

[00:14:09] Speaker 01:
In persons, we suggested there might be an exception for famous art.

[00:14:14] Speaker 01:
Right.

[00:14:14] Speaker 02:
This court has not decided there's a split in the circuits between the Second and Ninth Circuits.

[00:14:18] Speaker 02:
This court has not weighed in on that question.

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But I think persons is very much on point, because a lot of what is said

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in persons is equally applicable here.

[00:14:29] Speaker 02:
They're saying, yeah, they took a mark in Japan.

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They admittedly copied it.

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They saw it in Japan.

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They came back.

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That's not bad faith.

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that because there was no US recognition or use here.

[00:14:44] Speaker 02:
And Coca-Cola's answer to that is, well, that's under Section 2D.

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But our fundamental point on this appeal is, why should that matter?

[00:14:52] Speaker 02:
When we talk about trademarks and you talk about the territoriality doctrine,

[00:14:57] Speaker 02:
it goes to the essence of what a trademark is.

[00:15:00] Speaker 02:
It defines the scope of protection in a trademark.

[00:15:03] Speaker 02:
So just because we're now under 14.3 as opposed to 2D, if this court is right in Pearson's that that's not bad faith for 2D purposes, I don't see how it can be a blatant misuse under 14.3.

[00:15:16] Speaker 03:
Did Coca-Cola ever contact your client subsequent to the registration of the marks in the US?

[00:15:23] Speaker 02:
They did to complain about other registrations, which have been

[00:15:27] Speaker 02:
canceled and voluntarily given up involving specific designs, but they didn't at that time complain about the word marks themselves.

[00:15:35] Speaker 03:
So it seems to me there was a four period of time between the registration of the marks to they filing the cancellation of the marks for your period.

[00:15:45] Speaker 03:
I believe that's correct.

[00:15:46] Speaker 03:
And did they contact your clients about

[00:15:48] Speaker 03:
the use of the mark here in the U.S.

[00:15:51] Speaker 03:
before that time?

[00:15:52] Speaker 02:
Not to my knowledge.

[00:15:53] Speaker 02:
I think they complained about specific designs which those registrations have been given up.

[00:15:58] Speaker 02:
Thank you, Your Honor.

[00:16:00] Speaker 01:
Okay, we'll give you two minutes for a model.

[00:16:03] Speaker 01:
Ms.

[00:16:03] Speaker 01:
Zapparito.

[00:16:05] Speaker 00:
Thank you, Your Honors.

[00:16:06] Speaker 00:
May it please the court?

[00:16:07] Speaker 00:
My counsel across the aisle discussed territoriality at length, but he did not put his territoriality argument in the context of what we're talking about in this appeal.

[00:16:17] Speaker 00:
This is a misrepresentation claim made under section 1064 of the Lanham Act.

[00:16:22] Speaker 01:
You would agree, wouldn't you, that if there were no U.S.

[00:16:26] Speaker 01:
consumers who were aware of the Indian mark, as was the case in persons, that there would be no basis for cancellation?

[00:16:38] Speaker 00:
With respect to persons,

[00:16:40] Speaker 00:
As we stated in our brief, persons is an entirely different situation.

[00:16:44] Speaker 00:
It's a 2D cancellation action in which... But answer my question.

[00:16:48] Speaker 01:
Do you agree that if there were no recognition of the Indian marks in the United States, that there would be no basis for cancellation?

[00:16:57] Speaker 00:
Under misrepresentation, there has to be a blatant misuse in a manner designed to trade on the goodwill of another party.

[00:17:03] Speaker 00:
So there has to be, yes, somebody who is familiar with this in order for there to be harm to the consumers.

[00:17:09] Speaker 00:
or to the mark holders.

[00:17:11] Speaker 01:
What about their substantial evidence that they're not being acknowledged of the Indian mark among the Indian American population in the United States?

[00:17:22] Speaker 00:
Yes, Your Honor, as you're well aware, substantial evidence is a very low standard and one we readily meet here.

[00:17:27] Speaker 01:
What's the substantial evidence?

[00:17:29] Speaker 00:
There's multiple pieces of evidence that leads to that conclusion.

[00:17:34] Speaker 00:
Number one is that

[00:17:36] Speaker 00:
Importations are being sent to the U.S.

[00:17:39] Speaker 00:
from India.

[00:17:39] Speaker 00:
Those are being blocked by the Nazi.

[00:17:42] Speaker 00:
We have plans to distribute ourselves.

[00:17:45] Speaker 01:
The fact that there are importations which are blocked doesn't say anything about whether U.S.

[00:17:49] Speaker 01:
consumers are aware of the Indian marks.

[00:17:52] Speaker 01:
What's the evidence that U.S.

[00:17:54] Speaker 01:
consumers are aware of the Indian marks?

[00:17:56] Speaker 00:
Well, we have, for instance, we have Manaxi, all the principles of Manaxi-admitted knowledge.

[00:18:01] Speaker 00:
We have customers of Manaxi.

[00:18:03] Speaker 00:
There's evidence of Manaxi's own customers commenting that, with respect to the marks, they were aware that these were the marks used in India.

[00:18:10] Speaker 00:
So we have that type of evidence.

[00:18:13] Speaker 00:
There is absolutely substantial evidence.

[00:18:15] Speaker 00:
But with respect to this use in commerce requirement.

[00:18:18] Speaker 01:
Which customers in the United States were aware?

[00:18:20] Speaker 00:
Yes.

[00:18:22] Speaker 00:
Do you have appendix pages you'd want to cite to our summaries?

[00:18:25] Speaker 00:
Sure, I will get that for you.

[00:18:28] Speaker 00:
Just a moment.

[00:19:00] Speaker 00:
Sorry, just give me a moment.

[00:19:23] Speaker 00:
Can my colleague find that for me while I address another point?

[00:19:38] Speaker 00:
if they were Indian Americans or not, but they were Menaxi's customers in the U.S.

[00:19:42] Speaker 00:
who commented on knowledge of the marks and thought that they were the marks they had seen in India.

[00:19:48] Speaker 04:
It would be great if you could give us a citation sometime during your argument.

[00:19:51] Speaker 00:
Yes.

[00:19:52] Speaker 04:
I interrupted you and you were listing the things.

[00:19:55] Speaker 04:
You said importations in the U.S., Menaxi's admitted statements, Menaxi's customer statements.

[00:20:00] Speaker 04:
What else have you got?

[00:20:02] Speaker 00:
We have, as well,

[00:20:08] Speaker 00:
The evidence that, again, Menaxi's own witnesses admitted that they were aware of the marks.

[00:20:15] Speaker 00:
We have the customers.

[00:20:21] Speaker 00:
the principles of the Nazi themselves, the Gandhi's.

[00:20:24] Speaker 01:
It doesn't say much about US consumers.

[00:20:26] Speaker 01:
They could well have been aware of it because of their own commercial interests.

[00:20:31] Speaker 00:
I want to bring this use in commerce argument back, though, to the court's decision in Australian Therapeutic.

[00:20:38] Speaker 00:
In Australian Therapeutic, and it's a case we cited in our briefs, it decided just two years ago, and the court held, and I quote, that neither 1064, which is also known as Section 14,

[00:20:49] Speaker 00:
and it's the cancellation statute at issue here, nor our precedent requires that a petitioner have a proprietary right in its own mark in order to demonstrate a cause of action before the board.

[00:21:00] Speaker 00:
And this is true irrespective of the grounds of non-registrability.

[00:21:03] Speaker 01:
It's irrelevant here.

[00:21:04] Speaker 01:
The question is whether there's injury.

[00:21:07] Speaker 01:
Correct.

[00:21:08] Speaker 01:
The injury here is not based on lost US sales, as I understand it.

[00:21:13] Speaker 01:
It's based on a reputational injury.

[00:21:15] Speaker 01:
And if there's no reputation in the United States with respect to these Indian brands, how could there be reputational injury?

[00:21:25] Speaker 00:
The reputational injury exists because again, this is not a mark that is, these are not marks that have just minimal use abroad.

[00:21:32] Speaker 00:
These are, especially the thumbs up, this is a billion dollar brand we're talking about.

[00:21:37] Speaker 01:
on a famous morning.

[00:21:39] Speaker 00:
Again, what's the evidence?

[00:21:41] Speaker 04:
I wouldn't think it would be so hard to find.

[00:21:44] Speaker 04:
What is the evidence that given the $1 billion in sales in other countries, Americans would be aware of the product in the marks?

[00:21:56] Speaker 00:
The evidence was a reasonable inference made by the board, which was that.

[00:22:00] Speaker 04:
What is the underlying

[00:22:02] Speaker 00:
The underlying evidence was the fact that these marks are deemed well-known in India.

[00:22:08] Speaker 00:
They would be in judicial decisions.

[00:22:10] Speaker 01:
That doesn't say anything about the United States, the fact that it's well-known in India.

[00:22:13] Speaker 01:
I mean, that was true in persons, too.

[00:22:15] Speaker 01:
The mark was well-known in Japan.

[00:22:17] Speaker 04:
So it's deemed well-known in India combined with some understanding that some American Indians...

[00:22:30] Speaker 04:
American Indians probably are aware of it by having lived in India or visited India.

[00:22:37] Speaker 04:
Do I have that right?

[00:22:38] Speaker 00:
Yes, these marks are well known to a substantial part of Indian American consumers, and that was an inference the board made based on substantial evidence.

[00:22:46] Speaker 01:
We're still waiting for the evidence.

[00:22:51] Speaker 00:
Again, I apologize.

[00:22:53] Speaker 00:
I will find this citation.

[00:22:56] Speaker 01:
This isn't a surprise, right, that we're asking about.

[00:23:00] Speaker 00:
No, it's not a surprise.

[00:23:01] Speaker 00:
But again, our position is that it's irrelevant because the court's decision in Australian Therapeutic made clear... We're asking you for the substantial evidence.

[00:23:11] Speaker 03:
Where's the evidence?

[00:23:14] Speaker 00:
The evidence is... Can I... Give me just one minute because this is very important and I will find this.

[00:23:41] Speaker 03:
Maybe your colleague can look that up while we go on, because there's still some questions that I have for you.

[00:23:49] Speaker 03:
Am I correct that you conceded the famous mark exception rule?

[00:23:55] Speaker 00:
The famous mark exception rule goes in hand in hand with a 2D claim.

[00:24:00] Speaker 00:
Likelihood of confusion.

[00:24:01] Speaker 03:
Am I correct that you conceded that?

[00:24:02] Speaker 00:
2D is not before the board, yes.

[00:24:05] Speaker 00:
We are not arguing for it.

[00:24:07] Speaker 00:
a famous mark's exception with respect to misrepresentation.

[00:24:11] Speaker 00:
All that Coca-Cola must show in order to meet the misrepresentation statute is the plaintiffs.

[00:24:16] Speaker 03:
Doesn't the famous mark exception go to the argument you're making about how it's well known within the Indian community?

[00:24:23] Speaker 00:
It's not a famous mark exception because the section of... It's related to it, isn't it?

[00:24:28] Speaker 00:
It has some relation.

[00:24:30] Speaker 00:
But misrepresentation talks about the actions of the tutative defendant.

[00:24:35] Speaker 00:
It doesn't talk about the actions of

[00:24:37] Speaker 00:
the party seeking to cancel a mark.

[00:24:41] Speaker 00:
So again, we're not arguing for a famous marks exception.

[00:24:49] Speaker 00:
So again, Australian therapeutics talks about Lexmark and how you have to meet the Lexmark test in order to be able to be entitled to a statutory cause of action.

[00:25:02] Speaker 00:
And we absolutely meet the Lexmark test.

[00:25:06] Speaker 00:
Then you go into the actual language of misrepresentation and what we're required to show.

[00:25:10] Speaker 00:
So again, what Menaxi is asking the court to bless is the business practice of ripping off brands that are well-known abroad, copying the marks exactly,

[00:25:20] Speaker 00:
copying the advertising slogans used for those marks, and selling identical products under those marks in identical trade channels under those marks to U.S.

[00:25:29] Speaker 00:
consumers, all the while maintaining federal trademark registrations for such marks and receiving all the rights pertinent thereto.

[00:25:36] Speaker 00:
And they do so relying primarily on the person's decision, as my colleague across the aisle talked about.

[00:25:42] Speaker 00:
So again, person's is not a misrepresentation claim.

[00:25:46] Speaker 00:
The court in persons made clear that there was no evidence of blatant misuse of the marks or any bad faith.

[00:25:53] Speaker 00:
It's a different situation there.

[00:25:56] Speaker 00:
And specifically, another appointment actually ignores in its briefs, in Australian therapeutics, the court pointed out a distinction between Section 1064 claims like we're dealing with here and Section 2D claims when it noted that proprietary rights are necessary to show priority of use when petitioning.

[00:26:14] Speaker 01:
That's not their argument.

[00:26:15] Speaker 01:
They're not arguing that there have to be, that the court has to have proprietary rights in the United States.

[00:26:23] Speaker 01:
They're arguing there's no sales injury, which you're not even claiming, and that there's no reputation on injury because this is not a, these Indian marks are not even known in the United States.

[00:26:37] Speaker 00:
They actually do argue at length about proprietary rights and sometimes they argue it has to be a priority of use.

[00:26:43] Speaker 04:
Let's say we agree with you on that.

[00:26:45] Speaker 04:
We agree with you.

[00:26:46] Speaker 04:
But the concern we have is that are there consumers who are familiar with your goods so that their expectations would be upset when they encounter the Naxos goods?

[00:26:59] Speaker 00:
So yes, again,

[00:27:17] Speaker 00:
Okay, thank you.

[00:27:20] Speaker 00:
Certain appendix sites.

[00:27:21] Speaker 00:
We have Appendix 3048, 3050.

[00:27:24] Speaker 00:
Wait, wait, wait.

[00:27:29] Speaker 01:
304M.

[00:27:32] Speaker 03:
And what is that on 304M?

[00:27:41] Speaker 04:
This is the Dasani Declaration, is that right?

[00:27:45] Speaker 00:
Yes, those are the declarations.

[00:27:47] Speaker 04:
And what are you relying on this for?

[00:27:49] Speaker 00:
It shows that Coca-Cola's products are known among Indian Americans.

[00:27:56] Speaker 01:
Where is that?

[00:28:02] Speaker 00:
There's multiple portions of it, so if I can point to several portions.

[00:28:06] Speaker 01:
People come up here and they say it's in there somewhere.

[00:28:08] Speaker 01:
That doesn't satisfy us.

[00:28:10] Speaker 01:
We want to see exactly where it is.

[00:28:18] Speaker 01:
Unless my colleagues have further questions, why don't you reserve the rest of your time?

[00:28:23] Speaker 00:
Yes, thank you, Your Honor.

[00:28:24] Speaker 01:
And while we're hearing further from Mr. Mandali, you can see if you can find something.

[00:28:29] Speaker 00:
Thank you, Your Honor.

[00:28:30] Speaker ?:
I'll find it.

[00:28:30] Speaker 01:
Do you have any idea what they're talking about?

[00:28:32] Speaker 02:
Yeah, I think, Your Honor, I think the citation they're looking for is Appendix 2861 to 2862, in which one Minoxi witness indicated having seen the thumbs up, but not the Limca brand in India.

[00:28:48] Speaker 02:
The evidence that we're talking about here is, yes, there's one.

[00:28:51] Speaker 02:
2861.

[00:28:51] Speaker 02:
2861 to 2862.

[00:28:54] Speaker 02:
That as to thumbs up, there is evidence in the record that one consumer had once indicated to Minoxi that they had heard of thumbs up.

[00:29:03] Speaker 02:
But that's just not substantial evidence.

[00:29:06] Speaker 02:
I mean, I think the thing is, when you really look, and I think the reason that it's.

[00:29:10] Speaker 01:
Yeah, in persons, there was one person also, right?

[00:29:13] Speaker 02:
I don't recall, but the fact that it's taking them this long to find it almost speaks to what the evidence is.

[00:29:22] Speaker 02:
There is no substantial evidence.

[00:29:24] Speaker 02:
We're talking here about a statement by one of the Koch's witnesses who just says it, just says it's well known in the US.

[00:29:34] Speaker 02:
Doesn't even indicate how he would know.

[00:29:36] Speaker 02:
He says he's familiar with recognition in India, not the United States.

[00:29:40] Speaker 04:
So I hear what you're saying.

[00:29:42] Speaker 04:
I just want to make sure my question is answered.

[00:29:44] Speaker 04:
I have a question.

[00:29:44] Speaker 04:
OK, sure.

[00:29:47] Speaker 04:
Why is it that the fact that

[00:29:51] Speaker 04:
Mark and the product is well known in India.

[00:29:55] Speaker 04:
Let's take that.

[00:29:56] Speaker 04:
I think there's probably substantial evidence to support that.

[00:30:00] Speaker 04:
And then there is some evidence put into the record about the number of Indian Americans and how that population has been growing throughout the years in America.

[00:30:11] Speaker 04:
And then it's circumstantial.

[00:30:12] Speaker 04:
I think their position is you take the

[00:30:15] Speaker 04:
that well-known trademark india you can find out the fact that there's a many many people moving to america living in america from india so they must know about the mark why isn't that a fair circumstantial uh... a bit of circumstantial evidence to support the board's finding i think it's just too big a leap of logic is the answer you know to say that there are a lot of indian-americans that therefore i mean we don't know what percentage of their into india visit india

[00:30:45] Speaker 02:
You know what percentage of them shopping Indian grocery stores and even if they do shop in Indian grocery stores, they're not going to find Coke's product there because it's basically there's no evidence of any substance to show that the product has any US presence.

[00:31:00] Speaker 02:
They found three websites.

[00:31:01] Speaker 02:
I mean, you know, let's be honest here.

[00:31:02] Speaker 02:
This is Coca-Cola.

[00:31:03] Speaker 02:
They have a lot of resources.

[00:31:05] Speaker 02:
The fact that they scrape together three websites that show the product, obviously almost in and of itself tells you that there's not a substantial reputation here.

[00:31:15] Speaker 03:
Do they have a burden to show a nexus between that data?

[00:31:21] Speaker 03:
I'm sorry, Your Honor?

[00:31:22] Speaker 03:
Do they have a burden to show a nexus between the data and whether it's well-known and how that relates?

[00:31:27] Speaker 02:
I think they do, because otherwise, what would there be?

[00:31:31] Speaker 02:
I mean, there are a lot of marks that may be well-known as foreign marks.

[00:31:34] Speaker 02:
I mean, I'm sure.

[00:31:35] Speaker 02:
in piercings i'm sure there are a lot of japanese americans also uh... you know but that that's not enough you know we don't even protect famous marks and now we're talking about

[00:31:47] Speaker 02:
protecting a market may be known, which hasn't been shown, but we're assuming and foreign, that it may be known to some small subset of the American population.

[00:31:57] Speaker 02:
I just don't see how that's enough to stay the claim under the existing law.

[00:32:02] Speaker 02:
And even putting aside, I know they're talking a lot about the Australian case, which only goes to the standing question.

[00:32:07] Speaker 02:
There is still the merits at the end of the day.

[00:32:09] Speaker 02:
And on the merits, I really just don't see that they've established a misrepresentation.

[00:32:15] Speaker 02:
I think persons really is on point here.

[00:32:18] Speaker 02:
I don't think it's an answer to say that's a Section 2D case, because the court is talking about bad faith.

[00:32:24] Speaker 02:
And they're saying out now, it's not bad faith to adopt a mark in the US that you've seen in Japan that has a presence in Japan, because there's no goodwill here in the US.

[00:32:35] Speaker 02:
Trademarks are territorial.

[00:32:37] Speaker 02:
That applies every bit as much if we go on to 14-3 as it does on the 2-D.

[00:32:44] Speaker 01:
Okay.

[00:32:45] Speaker 01:
Let's my colleagues have further questions.

[00:32:47] Speaker 01:
I think we're finished with your argument, but we'll give Ms.

[00:32:51] Speaker 01:
Zapparito a chance to show us where in the record there is support for this finding.

[00:32:57] Speaker 00:
Yes, Your Honor, and thank you for that opportunity.

[00:32:59] Speaker 00:
It was, my colleague was, across the aisle was correct, it's Appendix 2861.

[00:33:03] Speaker 00:
specifically at 132, 7 through 13, testimony from one of the Menaxi witnesses.

[00:33:11] Speaker 01:
That's it?

[00:33:13] Speaker 00:
That's the record site your honor was looking for, but again, given Australian therapeutics... Okay, no, we're not looking for further argument in there.

[00:33:21] Speaker 01:
Thank you.

[00:33:21] Speaker 01:
Okay, thank you.

[00:33:22] Speaker 01:
Thank both counsel.

[00:33:23] Speaker 01:
The case is submitted.