[00:00:00] Speaker 02:
The first argued case this morning is number 22, 1119, in Ray Polaris Executive Center, LLC.

[00:00:11] Speaker 02:
Mr. Braun.

[00:00:14] Speaker 04:
Thank you very much, Your Honor.

[00:00:17] Speaker 04:
May it please the Court.

[00:00:18] Speaker 04:
My name is Arnold Braun.

[00:00:20] Speaker 04:
I'm IP counsel for Genesis Village through Polaris Executive Center.

[00:00:25] Speaker 04:
I'm here today to ask the Court to reverse the decision by the USPTO to deny registration.

[00:00:31] Speaker 04:
And I rest my argument on three pillars.

[00:00:34] Speaker 04:
The first is that the mark was improperly evaluated by the board.

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The second is that this examining attorney and the board failed to consider evidence which is in the record, showing that the consumers, with respect to the registrant and the repellent, are entirely different.

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And third, that the conditions to purchase the services of my client, which is a luxury apartment builder,

[00:01:00] Speaker 04:
are such that they are so arduous, time consuming, difficult, extensive, lengthy disclosures that it's virtually impossible that any likelihood of confusion could arise, or it's unanimous.

[00:01:14] Speaker 02:
So the theory is that consumers would know the difference, even though the name is the same?

[00:01:21] Speaker 04:
That's absolutely correct, Judge.

[00:01:24] Speaker 04:
Because the process of, we've all rented apartments.

[00:01:27] Speaker 04:
We know what leases are like.

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These are luxury apartments.

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that are priced in the thousands.

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The waiting lists are three years.

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These people know when they sign a lease that they're entering into a lease agreement with Genesis Village.

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For example, my client engages in very extensive personal showings.

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As we all know that, when apartments are personally sold, we interview the consumers, rental consumers.

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We design apartments for the consumer's needs.

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We require financial disclosures, including income tax returns.

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We require rentals.

[00:02:03] Speaker 01:
Are you currently arguing about DuPont factor 4, or which factor are you kind of focusing on?

[00:02:06] Speaker 04:
I'm arguing that the third pillar of my argument is the DuPont factor 12, which is other dispositive issues.

[00:02:15] Speaker 04:
We think if the court finds that the certification is dispositive,

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of no likelihood of consideration, then our mark should register.

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But in the event that's not the case, we rest on argument on two additional pillars, namely the improper dissection of the mark.

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And the examining attorney and the board failed to consider evidence in the record, which it should have considered, which it did not consider, showing that the registrant's consumers are actually property owners and investors, our consumers, my client's consumers,

[00:02:49] Speaker 04:
are apartment renters.

[00:02:51] Speaker 04:
Totally different.

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If the consumers are different, there is no likelihood of confusion.

[00:02:57] Speaker 01:
So it sounded like you were talking about kind of the conditions to purchase, which I would say is DuPont factor four.

[00:03:02] Speaker 01:
I do see 12 here about the extent of potential confusion.

[00:03:06] Speaker 01:
I guess you're talking about both.

[00:03:07] Speaker 01:
Is that kind of what you're doing?

[00:03:09] Speaker 01:
Yes.

[00:03:10] Speaker 04:
There's an overlap in the structure of DuPont to a certain extent.

[00:03:14] Speaker 01:
OK.

[00:03:14] Speaker 01:
And factor four, though, didn't the board find in your favor on that factor in particular?

[00:03:19] Speaker 04:
The board found that there is a careful and deliberate purchase by consumers because the process is very expensive.

[00:03:30] Speaker 04:
Our apartments sell in thousands.

[00:03:33] Speaker 04:
But what it didn't find is reach a point that, look, these conditions are such that this is not buying a toothpaste tube or a toothbrush or going for a haircut.

[00:03:43] Speaker 04:
You are involved in some very extensive negotiations for a lease agreement for these apartments.

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you are involved in very extensive disclosure.

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So the answer is yes, there is some overlap.

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And even though the board did find deliberateness of purchase and careful purchases by the consumers, it didn't go far enough.

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We feel it should have said, there's no confusion that could arise or it's de minimis.

[00:04:06] Speaker 01:
What services are offered by the property managers?

[00:04:09] Speaker 04:
We have luxury apartments, Your Honor.

[00:04:12] Speaker 04:
These are apartments which are

[00:04:14] Speaker 04:
built for people looking to rent luxury, elegant apartments.

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They're large.

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The kitchen appliances are ultra-modern.

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The door locks are even electronic door locks.

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Our apartments have the latest features.

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We have security services.

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We have a fitness center.

[00:04:33] Speaker 04:
We have things that you simply don't find in a typical apartment lease.

[00:04:37] Speaker 04:
It's high-end renting where the rents are

[00:04:41] Speaker 04:
in the thousands in this particular marketplace.

[00:04:44] Speaker 01:
Can we characterize it just, though, as running out properties, luxury properties, if you want to put it that way, on behalf of the owners?

[00:04:51] Speaker 01:
Is that a fair question?

[00:04:52] Speaker 04:
That's exactly it.

[00:04:53] Speaker 04:
That's exactly it, Your Honor.

[00:04:55] Speaker 01:
So they're just acting basically like landlords or something like that.

[00:04:58] Speaker 01:
Would that be a fair question?

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That is absolutely correct.

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It is a landlord.

[00:05:03] Speaker 01:
OK.

[00:05:03] Speaker 01:
You can keep going.

[00:05:06] Speaker 04:
The first pillar here that the board failed to properly assess

[00:05:12] Speaker 04:
is the actual distinctiveness of the design.

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If I may refer and show the court what is in the record for the design with permission of the court.

[00:05:24] Speaker 04:
May I do so?

[00:05:26] Speaker 02:
You may, of course.

[00:05:27] Speaker 02:
That was in your brief.

[00:05:29] Speaker 02:
I think what troubles us, what I think troubled the board, was that the name is a distinctive name

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And you are apparently postulating consumers who are educated before they even get into this rental activity that they know who is who and what's what.

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And rather than just have a distinctive name of your own to have even the possibility of confusion,

[00:06:07] Speaker 04:
My case doesn't simply rest on the distinctive name.

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It rests on a beautiful design, if I may show the court.

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This is the design.

[00:06:19] Speaker 02:
That's the design on the letterhead.

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It's the design on all advertisements.

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It's the trademark as filed.

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It's in the record.

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The board said.

[00:06:27] Speaker 02:
You're saying the trademark is limited to that design?

[00:06:31] Speaker 04:
That's correct.

[00:06:33] Speaker 02:
Not the name?

[00:06:34] Speaker 04:
It is a design mark.

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a composite mark for the design, and it is for the design.

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It does include the name, but as we all know, design marks are for the design.

[00:06:46] Speaker 02:
So you're saying that others going into the same business as your client could use the same name with a different design?

[00:06:55] Speaker 04:
We did not.

[00:06:57] Speaker 04:
Our word mark for Genesis Village was rejected.

[00:07:03] Speaker 04:
I chose to continue prosecution of the mark because of the design.

[00:07:09] Speaker 04:
We rest our case that the design is highly distinctive.

[00:07:13] Speaker 04:
What the board did was it looked at the design, and it simply said it's highly stylized, and the design is harmonious with the GV symbol.

[00:07:23] Speaker 04:
And I ask this court, or anyone, consumer looking at it, does this design actually look less noticeable than Genesis Village?

[00:07:31] Speaker 04:
It's a broad design.

[00:07:32] Speaker 04:
It spans the entire design.

[00:07:36] Speaker 03:
This is a fact finding, right?

[00:07:38] Speaker 04:
That's correct.

[00:07:39] Speaker 03:
And so I understand you're making an attorney argument that this consumer would more likely really focus in on the design portion of your composite mark.

[00:07:50] Speaker 03:
The board found otherwise and found that, no, they would look at the word portion of your composite mark.

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And then when they looked at the word portion,

[00:07:57] Speaker 03:
and saw that the term village had already been disclaimed, the most likely thing they would really zero in on is the distinctive word genesis, because that is distinctive, unlike village, which has been disclaimed.

[00:08:10] Speaker 03:
And that unlike the design portion, which is nice to look at, but it's not nearly as, I guess, memorable, I would say,

[00:08:23] Speaker 03:
some of the designs that you were pointing at in your blue brief, like a walking, talking, dancing hot dog or a disembodied torso.

[00:08:34] Speaker 03:
I mean, those particular designs in those cases, there's something a little more memorable than your scroll work here.

[00:08:45] Speaker 03:
So I guess the problem we have here is you're

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You're coming to us with a lot of attorney argument based on things that are truly core fact findings.

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And it's very hard, I think, for us to revisit all of these fact findings, because we can't.

[00:09:03] Speaker 03:
We can't do that to Nova.

[00:09:04] Speaker 04:
Well, if I may, Judge, respond to that.

[00:09:08] Speaker 04:
This court has enunciated NRA electrolyte labs.

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That is a key critical case in this matter.

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And in that case, the court has said there are no general rules, whether letters or designs dominate.

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And even if one does, that is still not dispositive.

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My argument here is that the method that the board used dissected this mark.

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By merely calling it higher stylized, they totally ignored the overall commercial impression of that mark, which is a critical factor, more critical

[00:09:42] Speaker 04:
than the word marks itself, the impression of the word mark.

[00:09:46] Speaker 04:
Genesis Partners is playing block letters.

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Once they reached the conclusion that the higher stylization devoid of my client's mark, there was nothing left but the word mark.

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So I'm arguing that even though they made that rather highly subjective and, I believe, incredible decision to discount the designer, totally,

[00:10:08] Speaker 04:
that the method that they used failed to look and consider the mark as a whole.

[00:10:12] Speaker 04:
I dare say that this mark, if shown to a consumer, to the man and woman on the street, I find it hard to believe that they're going to say the design is less noticeable.

[00:10:25] Speaker 04:
I rest my third argument on the evidence presented by the examining attorney.

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In this case, there was language in the evidence of the examining attorney.

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It's his own evidence.

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which clearly indicated that registrant, as a property owner, property manager, was seeking, soliciting, marketing to a specific type of consumer.

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Those consumers are property owners and investors.

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They're not apartment renters.

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Now, I know the counter-argument back that counsel will make is that, well, that evidence also shows that they're renting apartments.

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I admit that.

[00:11:09] Speaker 04:
But the point is, who are the consumers?

[00:11:12] Speaker 04:
You have examining attorney's evidence that literally is littered with words showing that the registrant's consumers are really property owners and investors, because they're

[00:11:28] Speaker 04:
Property owners and investors who own real estate looking to manage their property.

[00:11:31] Speaker 03:
What about the evidence in the record of third party websites and third party trademark registrations that show a single source is providing the services Genesis Partners is doing and the services that your company is doing?

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In other words, there are many, many people out there, companies out there that are

[00:11:55] Speaker 03:
under a single mark providing the service of managing real property and apartment and office rentals.

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And so for that reason, the board found and the trademark examining attorney found that people in this industry would be inclined to think that

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a single source is providing all of these different services.

[00:12:24] Speaker 03:
And so because they're so related, one could easily imagine consumers thinking that Genesis Partners is not only in the managing real property business, but could also be in the apartment and office rental business, which is what you're doing under Genesis Village.

[00:12:42] Speaker 04:
Well, Your Honor, let me respond to that.

[00:12:45] Speaker 03:
Registering Genesis is a fact-finding.

[00:12:48] Speaker 04:
Registrants, and again, the board misinterpreted the description for registrant.

[00:12:54] Speaker 04:
Registrants description is namely managing real property.

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That evidence submitted by the examining attorney includes real estate services.

[00:13:06] Speaker 04:
The registrants description reads real estate services, namely managing real property.

[00:13:12] Speaker 04:
The very TMEP says,

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that real estate services is vague and ambiguous.

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The registrant had to narrow it under the TMEP.

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And my brief cites quite a few sections in the TMEP that said once it's narrowed, that's the span of their registration.

[00:13:34] Speaker 04:
What the examining attorney submitted in the evidence you're referring to, Your Honor, is global real estate service companies that provide real estate brokerage.

[00:13:43] Speaker 04:
real estate agency, real estate appraisal, commercial property management, which my client does not provide.

[00:13:50] Speaker 03:
Office rentals, apartment?

[00:13:52] Speaker 04:
My client does have office rentals, as every apartment does.

[00:13:55] Speaker 04:
It's a very minor amount.

[00:13:58] Speaker 04:
It's basically stores like bakeries on the ground floor.

[00:14:02] Speaker 04:
So it's a very minor amount.

[00:14:04] Speaker 03:
The question isn't whether the services in the registration and your application are identical or not.

[00:14:11] Speaker 03:
The question is whether they are related or not.

[00:14:13] Speaker 03:
That is what DuPont Factor II asks.

[00:14:16] Speaker 03:
And here, there seems to be very solid evidence that they are, in fact, related.

[00:14:22] Speaker 03:
And they are oftentimes, in fact, offered under the same commercial roof, under a single mark.

[00:14:31] Speaker 04:
Well, let me respond to that quickly, if I may.

[00:14:34] Speaker 04:
The fact that the consumers are different, there is evidence in the record of the examining attorney that the board never considered, extensive language showing that the consumers of the registrant are investors and property owners.

[00:14:48] Speaker 04:
It cannot be ignored.

[00:14:49] Speaker 04:
It should have been examined and weighed because there's no substantial evidence.

[00:14:53] Speaker 04:
A reasonable mind could have differed on that point.

[00:14:56] Speaker 04:
With respect to that latter evidence,

[00:14:59] Speaker 04:
It is what was presented by the examining attorney is global real estate services, global real estate services.

[00:15:09] Speaker 04:
The registrant narrowed its services to namely managing real property.

[00:15:15] Speaker 04:
You can't compare apples to oranges.

[00:15:18] Speaker 04:
You can't compare a landlord to a global

[00:15:22] Speaker 04:
real estate service, and I see my time has now expired.

[00:15:27] Speaker 02:
Thank you.

[00:15:29] Speaker 02:
Thank you, Matt.

[00:15:30] Speaker 02:
Thank you.

[00:15:32] Speaker 00:
Good morning, Your Honors.

[00:15:33] Speaker 00:
May it please the Court.

[00:15:36] Speaker 00:
To overturn the board's decision, Polaris has to demonstrate the absence of substantial evidence.

[00:15:42] Speaker 00:
But consider the basic facts of this case.

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Polaris's application is for Genesis Village for use with office and apartment rentals.

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And the site of registration is Genesis Partners for use with property management.

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The board went through the DuPont factors in its opinion very thoroughly.

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And as the colloquy between the court and Mr. Braun showed, I believe, the court made fact findings.

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And those fact findings are reviewed for substantial evidence.

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Even if Polaris has counter arguments, the ultimate question is whether the board's findings were reasonable.

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And we believe that they were.

[00:16:25] Speaker 02:
But the question is, is there a reasonable likelihood of confusion?

[00:16:33] Speaker 00:
Yes, we believe there is a reasonable likelihood of confusion, Your Honor.

[00:16:37] Speaker 02:
On the presentation that we have that the market, the customers, are significantly different.

[00:16:46] Speaker 00:
Yes, the law is that the consumers do not need to be identical.

[00:16:52] Speaker 00:
The question is whether the circumstances under which consumers would be exposed to these marks would lead to the impression that the services are emanating from the same companies.

[00:17:06] Speaker 00:
And in this field, where we have office and apartment rentals, and we have a property management company, and they're both

[00:17:14] Speaker 00:
some close form of genesis, we think that consumers would be led to believe, mistakenly, to believe that there is a relationship.

[00:17:27] Speaker 00:
And again, those are fact findings that the board made that are reviewed for substantial evidence.

[00:17:32] Speaker 01:
Did the board put any weight on the fact that village and partners were disclaimed terms?

[00:17:38] Speaker 00:
The board put some weight on that.

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The board didn't reflexively say that just because they had been disclaimed that they weren't entitled to wait.

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What the board said was that, for instance, partners, which is more of a legal designation, that's something that typically has less distinctive quality.

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And in a real estate field where you have a company that's engaged in property management, a legal designation like partners is going to have less distinction.

[00:18:10] Speaker 00:
And village, again, in the context of office and apartment rentals, a village is a place where people live and sleep and do their business.

[00:18:20] Speaker 00:
And so the board said that ultimately, while those two words are in the mix, they don't outweigh the significance and the distinction of Genesis, which is the common word in both marks.

[00:18:39] Speaker 02:
Well, there was no citation with respect to the design.

[00:18:45] Speaker 02:
Isn't that right?

[00:18:47] Speaker 02:
Only the words?

[00:18:50] Speaker 00:
The board did discuss the presence of the scroll work and the stylized GV.

[00:18:58] Speaker 00:
And specifically around pages 15 to 16 of the opinion, the board discussed that.

[00:19:07] Speaker 00:
And what the board said was that the scroll work itself didn't really do much to distinguish the applicant's mark and that, in fact, that stylized GV in the circle is really hard to read.

[00:19:24] Speaker 00:
And so therefore, a reader would probably just skip over it.

[00:19:28] Speaker 00:
And so what the board ultimately said was that, yes, there are some

[00:19:35] Speaker 00:
differences in that regard, but ultimately the similarities outweigh the differences.

[00:19:40] Speaker 02:
I don't recall them saying the design was similar to anything.

[00:19:52] Speaker 00:
If I could just check the opinion, Your Honor, I believe it's around pages 16 to 17.

[00:19:55] Speaker 00:
And I can certainly read that back.

[00:20:01] Speaker 02:
You said the design was not sufficient.

[00:20:04] Speaker 02:
to provide a distinction, but not that the design itself was not distinctive.

[00:20:12] Speaker 00:
I'm sorry.

[00:20:12] Speaker 00:
So this is pages 14 to 15 of the board's opinion and appendix, pages 14 to 15.

[00:20:19] Speaker 00:
On page 15, the board says that it can, in the evaluation of the entire mark, the board can place more weight on some parts of the mark than others.

[00:20:29] Speaker 00:
And toward the bottom of page 15 says that consumers are likely to perceive applicants marked Genesis Village as a variation of the cited mark Genesis Partners, notwithstanding the differences in meaning between Village and Partners.

[00:20:44] Speaker 00:
The differences between the marks failed to distinguish them.

[00:20:47] Speaker 02:
Well, exactly.

[00:20:47] Speaker 02:
They were talking about the words.

[00:20:51] Speaker 00:
Is that right?

[00:20:52] Speaker 00:
Yes.

[00:20:52] Speaker 00:
That is true.

[00:20:57] Speaker 00:
On page 14, about halfway down the page, the board says, or specifically talking about the stylized lettering and the design element, the scroll work, the board says,

[00:21:09] Speaker 00:
In addition, with respect to applicant's mark, we find the stylized lettering and the design elements subordinate to the prominently displayed wording, Genesis village.

[00:21:20] Speaker 00:
It is an often-recited principle that when a mark consists of a literal portion and a design portion, the literal portion is usually more likely to be impressed upon a purchaser's memory.

[00:21:32] Speaker 00:
And the board cited this court's precedent in Bravatera to support that finding.

[00:21:40] Speaker 02:
But here the argument is that the customer, the fields of customers are sufficiently different that they would not be in this generalized hedging statement of if the customers are all the same, which seems to be what the board and what the examiner was referring to, at least as far as the precedent they were relying on.

[00:22:07] Speaker 00:
Again, Your Honor, the board cited evidence to support its findings on that.

[00:22:13] Speaker 00:
There was the showing that the examining attorney had put in evidence that other use-based registrations have been registered for use with both rental services and property management for use with the same mark.

[00:22:29] Speaker 00:
There was the website evidence where it was clear that

[00:22:33] Speaker 00:
You can go to the same website and see that there are offices or apartments for rent and that there are also property management services being offered for people who need that.

[00:22:44] Speaker 00:
And again, this is all factual matter that this court reviews for substantial evidence.

[00:22:52] Speaker 00:
Unless the court has any further questions, I'm happy to give the rest of my time back to the court.

[00:23:09] Speaker 04:
There's the answer.

[00:23:12] Speaker 04:
Words matter over everything else.

[00:23:15] Speaker 04:
A general rule is in operation here.

[00:23:20] Speaker 04:
There's evidence that was not looked at.

[00:23:23] Speaker 04:
When counsel says, oh, yes, the websites show property rentals, and they also show solicitation of property owners.

[00:23:34] Speaker 04:
Those websites, 90% of the language, is directed by the registrant to retain investors and investors to manage their property and property owners.

[00:23:47] Speaker 04:
Yes, there are boxes there where an internet surfer can actually check a box and say, send me information about that apartment.

[00:23:54] Speaker 04:
That doesn't make them a consumer.

[00:23:55] Speaker 04:
We all know that.

[00:23:57] Speaker 04:
They're not consumers.

[00:23:58] Speaker 04:
They're transient people looking at that.

[00:24:02] Speaker 04:
The registrants.

[00:24:04] Speaker 04:
The registrant's consumers, it's our argument, the registrant's consumers are those property owners and investors.

[00:24:11] Speaker 04:
And that solicitation and marketing language is inescapable.

[00:24:16] Speaker 04:
But getting back to the design itself, what I just heard was that, oh, well, the board looked at your design, and it wasn't sufficient to overcome, to provide distinctiveness.

[00:24:31] Speaker 04:
And the scroll work.

[00:24:33] Speaker 04:
The scroll work on that design cannot be equated to the GV symbol.

[00:24:38] Speaker 04:
I asked the court to look at the design and actually say, do you really feel that consumers could not see the GV symbol?

[00:24:46] Speaker 04:
It is very evident.

[00:24:48] Speaker 04:
What the board did was reach a conclusion based on higher stylization.

[00:24:54] Speaker 04:
You must remember that my client is seeking high-end real estate apartment rentals.

[00:25:00] Speaker 04:
The design and the mark exudes elegance.

[00:25:04] Speaker 04:
It exudes luxury.

[00:25:06] Speaker 04:
If you take my client's mark and put it on a Rolls Royce, it fits in exactly there.

[00:25:10] Speaker 04:
If you put it on a Volkswagen, no derogation of Volkswagen, it's not proper.

[00:25:15] Speaker 04:
It's designed to communicate exactly what the board derogated, higher stylization.

[00:25:21] Speaker 04:
And it shouldn't be penalized because it's stylized that way.

[00:25:26] Speaker 04:
I'm asking this court to decide this decision to reverse.

[00:25:30] Speaker 04:
in the framework of a decision handed down by this court.

[00:25:35] Speaker 04:
This court has said there are no general rules.

[00:25:37] Speaker 04:
This court has said there are no rules as to whether letters or designs dominate.

[00:25:43] Speaker 04:
And even if one does, it's not dispositive.

[00:25:46] Speaker 04:
If that means anything, it means that my client's design was not given the proper review of an overall commercial impression.

[00:25:57] Speaker 04:
Rather, it was segmented.

[00:26:00] Speaker 04:
This court has said that a design composite mark like that, like my client's, has to be viewed in the visual condition in which it occurs.

[00:26:11] Speaker 04:
In ray electrolyte involved a case of potassium where the symbols were very common, K, and the goods were commodities.

[00:26:19] Speaker 04:
In that case, the court ruled reversed.

[00:26:22] Speaker 04:
I'm asking this court to reverse the decision.

[00:26:25] Speaker 04:
We believe our mark is distinctive.

[00:26:28] Speaker 04:
But more than that.

[00:26:30] Speaker 04:
It shouldn't be a requirement for composite applicants like myself to breach a nearly impregnable wall of word marks in this case, especially when they have a distinctive mark.

[00:26:43] Speaker 04:
I'm asking this court to render a decision that requires and compels the evaluation of the total commercial impression of the mark as a whole, the way consumers would see it.

[00:26:56] Speaker 04:
No consumer would ever view the mark as the way counsel has presented it.

[00:27:00] Speaker 04:
I thank Your Honors for your time.

[00:27:03] Speaker 02:
Thank you.

[00:27:04] Speaker 02:
Thanks to both counsels.