[00:00:00] Speaker 05:
Our final case for today is 22-1872, Natara International versus Ben Salam.

[00:00:09] Speaker 05:
Mr. Hernandez.

[00:00:13] Speaker 01:
May it please the court, Miguel Hernandez for Appellant Natara.

[00:00:18] Speaker 01:
The board considered nine of the 13 DuPont factors and found that five were neutral.

[00:00:23] Speaker 01:
Of the remaining four factors,

[00:00:25] Speaker 01:
the board found that the marks were confusingly similar and that baby magic has a level of fame.

[00:00:31] Speaker 01:
For the remaining two factors, the board found that the trade channels and the goods weighed against confusion.

[00:00:38] Speaker 01:
However, there's undisputed evidence to the contrary.

[00:00:42] Speaker 01:
Applying this court's precedent to the cited factors requires a de novo review and reversal of the board's decision.

[00:00:51] Speaker 01:
Turning to the similarity of the marks, it's undisputed

[00:00:54] Speaker 01:
that each of the four criteria favors confusion.

[00:00:59] Speaker 01:
Further, Bensalem amplifies the confusion by emphasizing baby's magic significantly over the word T. You can find this on appendix page 29.

[00:01:14] Speaker 01:
Further, it is undisputed that Bensalem's mark incorporates the entirety

[00:01:21] Speaker 01:
a baby magic.

[00:01:22] Speaker 01:
This is important because this court has explained that incorporating the senior user's mark in its entirety strongly favors confusion.

[00:01:33] Speaker 04:
Didn't the board find that the similarity of the marks favored like limited confusion?

[00:01:42] Speaker 01:
That's correct your honor.

[00:01:43] Speaker 04:
Is your view that that one factor should be dispositive or

[00:01:48] Speaker 01:
It could be dispositive.

[00:01:49] Speaker 01:
However, I would like to emphasize that previous cases with these types of similarities of the marks have weighed heavily in favor of confusion, not just weighed somewhat in confusion.

[00:02:03] Speaker 01:
So under de novo review, I would like to emphasize that this factor weighs heavily, if not dispositively.

[00:02:11] Speaker 03:
Can you point us to where in the decision you feel like the board did not do a proper weighting with respect to that factor?

[00:02:18] Speaker 01:
So on appendix page 29, I believe, the board concluded that the marks were more similar than dissimilar.

[00:02:32] Speaker 01:
However, this type of language is insufficient to capture the near-identical or identical criteria that these marks have.

[00:02:50] Speaker 01:
As you can see, the middle paragraph, the first factor, weighs in favor of the likelihood of confusion.

[00:02:57] Speaker 01:
Again, on de novo review, this factor should weigh heavily in favor of confusion.

[00:03:04] Speaker 04:
Do you want to move on to other factors?

[00:03:06] Speaker 01:
Yes, Your Honor.

[00:03:07] Speaker 03:
Moving to the fame of baby magic, it's undisputed that- Can you touch on factor three, the channels of trade, and that, I believe that's a request for admission, but if you could talk to that- Right, Your Honor.

[00:03:20] Speaker 01:
So it's undisputed that there's evidence of Bin Salem admitting that the parties have the same channels of trade.

[00:03:28] Speaker 01:
Now, the board did not acknowledge or consider this fact in evidence.

[00:03:33] Speaker 01:
Further, it is undisputed that the parties sell their goods to the same consumers.

[00:03:40] Speaker 01:
This is important because this court has explained that when parties sell their goods to the same consumers, it's an indication that the trade channels overlap.

[00:03:50] Speaker 05:
Do you find it at all amusing that you are three male attorneys arguing a case about whether or not consumers of baby products find the channel the same to three women who have seven children among them?

[00:04:02] Speaker 01:
It's not lost on me, Your Honor.

[00:04:08] Speaker 01:
Turning back to the trade channels, it's also undisputed that the parties sell these goods in the same stores.

[00:04:17] Speaker 01:
Accordingly, substantial evidence cannot support the board's finding that this factor weighs against Natara.

[00:04:24] Speaker 01:
If anything, this factor must weigh in favor of Natara.

[00:04:29] Speaker 04:
If we were to agree with you, then what would happen?

[00:04:32] Speaker 04:
We'd have to send it back to the board to make that decision.

[00:04:34] Speaker 01:
I disagree, Your Honor.

[00:04:37] Speaker 01:
So for the similarity of the marks in the Fame of Baby Magic, sorry, I would like to point out one more thing about the fame.

[00:04:45] Speaker 01:
The board never explicitly weighed this factor in favor of Notara.

[00:04:49] Speaker 01:
That is a legal error, because in ReCaught, this board explained that when fame is present, its weight must be fully accorded.

[00:04:59] Speaker 04:
Should we interpret this factor as fame or just more of an assessment of the strength of the mark?

[00:05:05] Speaker 04:
And the board said it was middle of the road.

[00:05:08] Speaker 01:
No, this is factor five.

[00:05:12] Speaker 01:
This is fame.

[00:05:13] Speaker 01:
Because as the board explained and as we point out in our briefs, for likelihood of confusion, it's a spectrum.

[00:05:20] Speaker 01:
So the board found, and we accept for this appeal, that baby magic falls in the middle of that spectrum.

[00:05:28] Speaker 01:
It doesn't go towards the strength of a mark.

[00:05:32] Speaker 01:
That's a consideration the board took in assessing where baby magic falls in the fame spectrum.

[00:05:38] Speaker 01:
But it's its own factor, Your Honor.

[00:05:42] Speaker 01:
So turning back to your question, the similarity of the marks and the fame of the mark, that's de novo review.

[00:05:48] Speaker 01:
We have no issue with the board's fact-finding.

[00:05:51] Speaker 01:
So weighing those two factors alone is sufficient for this court to reverse the board's decision without remanding.

[00:06:03] Speaker 03:
You'd be happy with a vacane remand, though, wouldn't you?

[00:06:06] Speaker 01:
Yes, Your Honor.

[00:06:07] Speaker 01:
I acknowledge that remand, it's something.

[00:06:13] Speaker 01:
But again, there's no further factual finding.

[00:06:16] Speaker 01:
These two factors alone necessitate reversal.

[00:06:21] Speaker 01:
Now, turning to the goods, it's undisputed that there's evidence in the record showing other companies selling both parties' types of goods.

[00:06:34] Speaker 01:
Now, the board erred in failing to consider this evidence.

[00:06:38] Speaker 01:
And this court in Recot explained that this exact type of testimony was extremely pertinent to whether the goods are related.

[00:06:48] Speaker 04:
Again, here, do you think, if we agree with you, that that testimony should have been considered, that evidence should have been considered?

[00:06:56] Speaker 04:
And don't we have to send it back to the board to consider it in the first instance?

[00:07:00] Speaker 01:
I agree.

[00:07:01] Speaker 01:
I can see, Your Honor, that this factual finding would require a remand.

[00:07:07] Speaker 01:
However, the marks are so similar, and the presence of this fame weighs so heavily

[00:07:15] Speaker 01:
that this legal conclusion can only be a likelihood of confusion.

[00:07:20] Speaker 01:
There's no need to send it back to the board.

[00:07:22] Speaker 05:
So you're saying that even though you think you should prevail on that factor and that that requires fact-finding by the board, you'd be prepared to waive that.

[00:07:29] Speaker 05:
I'm not saying you have waived it, but you'd be prepared to waive it if we were amenable to the idea that weighing the likelihood of confusion, which is a question of law, these other two factors weigh so heavily in favor of you, we don't even have to get to that factor.

[00:07:42] Speaker 01:
That's correct, Your Honor.

[00:07:43] Speaker 01:
These two factors weigh so heavily, the court wouldn't even need to get to that point.

[00:07:50] Speaker 01:
However, should the court not feel as strongly, considering this factor would require reversal and remand, that's worst case scenario.

[00:08:03] Speaker 03:
They can't remand, is the worst case scenario, is that what you mean?

[00:08:06] Speaker 01:
That is our position.

[00:08:07] Speaker 03:
Okay, anything further?

[00:08:09] Speaker 01:
Yes, I would like to emphasize that

[00:08:12] Speaker 01:
This court has explained that if there's any doubt about confusion between the marks, it must be resolved in favor of the senior user.

[00:08:21] Speaker 01:
Here, if there's any doubt in your mind that there's confusion, it must be resolved in favor of Natara.

[00:08:29] Speaker 05:
You want to save the rest of your time for rebuttal?

[00:08:32] Speaker 01:
If there's no further questions, Your Honors, I reserve the rest of my time for rebuttal.

[00:08:37] Speaker 02:
Mr. Sterling.

[00:08:40] Speaker 02:
Thank you.

[00:08:40] Speaker 02:
Pleasure to report.

[00:08:41] Speaker 02:
uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh...

[00:09:10] Speaker 02:
So I believe you're specifically referring to channels of trade very hard.

[00:09:13] Speaker 03:
Yes.

[00:09:15] Speaker 02:
So the key thing regarding channels of trade, and it's important to note is, especially with today's modern-day internet supermarkets, super stores that sell essentially everything, dating back to the 1970s, the discourse predecessor has found that simply because products are offered within the same marketplaces or stores does not automatically equate with those products being related.

[00:09:40] Speaker 02:
This is decades before the modern internet platforms.

[00:09:44] Speaker 03:
What about the RFA response?

[00:09:46] Speaker 03:
Can you address that in particular, sir?

[00:09:48] Speaker 02:
I think that the response speaks for itself, and the appellant is not arguing with what the response is.

[00:09:55] Speaker 05:
I don't understand, though.

[00:09:57] Speaker 05:
The court found that Natara failed to show the goods are sold through similar channels, and yet you had actually admitted that they're sold through similar channels.

[00:10:06] Speaker 05:
How is that not an error on the court's part?

[00:10:10] Speaker 02:
I'm simply saying that whether or not the court found that or not is not the determination.

[00:10:17] Speaker 02:
The determination here is whether or not that factor weighs in favor of the appellant here.

[00:10:22] Speaker 02:
And in this case, you add up everything, and it does not weigh in favor of the appellant.

[00:10:29] Speaker 02:
Excuse me, counsel.

[00:10:30] Speaker 04:
Yes, Your Honor.

[00:10:31] Speaker 04:
When you say you add up everything and you see whether it weighs in favor of the appellant, what are you talking about?

[00:10:37] Speaker 04:
Are you talking about?

[00:10:38] Speaker 04:
Adding up all the Dupont factors?

[00:10:40] Speaker 02:
Adding up all the Dupont factors, but that specific Dupont factor dealing with the actual relationship of the actual goods themselves.

[00:10:51] Speaker 04:
I understand.

[00:10:53] Speaker 04:
But there was in response, it's factor three, similarity of trade channels.

[00:11:00] Speaker 04:
And both the parties agree that they're similar trade channels.

[00:11:04] Speaker 04:
So how could we say that the board didn't err when it concluded that that factor weighs against the likelihood of confusion?

[00:11:13] Speaker 02:
Because in that case, even if the board were to have found that there was a likelihood regarding the actual sales channels, that does not automatically establish that the goods themselves are similar or related.

[00:11:25] Speaker 02:
And that's really the Dupont factor that's at the issue here.

[00:11:30] Speaker 04:
Are you talking about the similarity of goods factor now?

[00:11:34] Speaker 02:
Well, the similarity of goods factor and the actual trademarks themselves are going to be the two key considerations at any amount.

[00:11:42] Speaker 04:
I'm not following your argument, to be honest with you.

[00:11:45] Speaker 04:
I don't understand what your argument is for saying that the board did not err when it concluded that the similarity of trade channels weighed against the likelihood of confusion.

[00:11:59] Speaker 04:
So maybe you need to explain that.

[00:12:02] Speaker 02:
Sure.

[00:12:03] Speaker 02:
Yes, Your Honor.

[00:12:04] Speaker 02:
But what I'm arguing is that there's substantial evidence for the board's decision.

[00:12:08] Speaker 02:
Regardless of whether you found that the board erred or not on that,

[00:12:11] Speaker 02:
I'm simply saying that the analysis is harmless, even if you were to have found that there was an error in that case in terms of the action of decision.

[00:12:21] Speaker 02:
There's substantial evidence to support the board's decision that the trademarks themselves are dissimilar.

[00:12:27] Speaker 03:
Can you give me, what is that substantial evidence that you're saying is supporting the board's decision on this factor three?

[00:12:35] Speaker 03:
I just want to focus on the trade channels in light of this RFA response.

[00:12:39] Speaker 03:
I just need to kind of

[00:12:41] Speaker 03:
See it.

[00:12:41] Speaker 03:
Lay eyes on it.

[00:12:42] Speaker 03:
Give me something.

[00:12:45] Speaker 02:
I'm not making an argument with you.

[00:12:46] Speaker 02:
I think it speaks for itself.

[00:12:48] Speaker 02:
There's nothing to argue with what's on paper, Your Honor.

[00:12:51] Speaker 05:
That would be just ingenuous to argue against what's on paper.

[00:12:55] Speaker 05:
So just to make sure we're all on the same page, your argument is, OK, yeah, maybe the board did, in fact, mess up when it concluded that the similarity of trade channels weighed against likelihood of confusion here.

[00:13:09] Speaker 05:
But you're saying put that to the side, there's still plenty of other evidence that supports the board's ultimate conclusion on likelihood of confusion.

[00:13:17] Speaker 05:
Is that what you're saying?

[00:13:18] Speaker 02:
That's correct, Your Honor.

[00:13:20] Speaker 02:
I'm not making a claim that the board error did not error.

[00:13:23] Speaker 02:
I'm just simply saying if you were to have found that they error on that factor, it's harmless in the actual analysis itself based upon everything else in the actual record.

[00:13:34] Speaker 05:
Would you want to tell us what in the rest of

[00:13:38] Speaker 05:
The factors are that you think so strongly support the Lord's decision.

[00:13:43] Speaker 02:
Yes, absolutely, Your Honor.

[00:13:45] Speaker 02:
In this case, there's really two key factors.

[00:13:48] Speaker 02:
One, the actual trademarks themselves.

[00:13:51] Speaker 02:
There's no disputing that the word baby is high in both parties' trademarks is descriptive, in that both products are for babies as far as what they're targeted to.

[00:14:05] Speaker ?:
evidence in the record as to the total management, both dictionary definition-wise that it is suggestive and characteristic of the actual goods themselves, and that there's substantial use that the board noted of the number of trademarks both that are registered for similar goods to the appellant and in marketplace use.

[00:14:24] Speaker 02:
And so they do find that the trademark was conceptually weak as far as that goes, and that it should not be afforded a certain amount of strength, as I think the appellant is seeking for here.

[00:14:35] Speaker 02:
Additionally, when you look at the actual record itself, the appellant in both their briefs and today's arguing as the analysis of fate, the appellant of course had the burden in this case in seeking to cancel my client's trademark, improving the actual theme of the trademark and for whatever reason, strategic or otherwise, chose not to make a record.

[00:14:58] Speaker 02:
Certain evidence which may or may not have helped them in this case in terms of actual sales and information,

[00:15:03] Speaker 02:
in terms of advertising information and in terms of reputation of the actual trademark, which the board didn't recognize in this case was lacking.

[00:15:11] Speaker 02:
And when my colleague notes, for example, the Rayco case, they noted billions of dollars in sales in that case.

[00:15:19] Speaker 02:
And when the board at this court has dealt with fame, it's typically something that they don't have to be proven clearly.

[00:15:25] Speaker 02:
And it's something that oftentimes is dealing with those two things in particular right there, both sales

[00:15:30] Speaker 02:
and advertising information, and other than self-serving statements by the president or the interim, none of that information, for whatever reason, was provided in this case.

[00:15:40] Speaker 02:
And I think that we personally, I think that we heavily, in the board's decision, in terms of the fact that they failed to prove that, and that the trademark was actually conceptually weak, as to why that factor was not seen as disproven.

[00:15:55] Speaker 04:
Can I ask you about the third party evidence on the similarity of goods, the existence of these third parties that sold goods that fell into both of the product categories and the registrations?

[00:16:08] Speaker 04:
Why is it that that's irrelevant?

[00:16:09] Speaker 04:
Shouldn't the board have considered that?

[00:16:12] Speaker 02:
No, that's absolutely very relevant, and the board did consider that.

[00:16:16] Speaker 04:
You think it did consider the third party?

[00:16:19] Speaker 02:
The third party, yes, absolutely.

[00:16:22] Speaker 04:
I thought it said, I guess it considered it.

[00:16:24] Speaker 04:
It just said it was irrelevant.

[00:16:26] Speaker 02:
No, I don't see where it said it.

[00:16:28] Speaker 02:
It said it's irrelevant.

[00:16:29] Speaker 02:
It weighed that as a factor in the determination.

[00:16:32] Speaker 02:
It went from each of those trademarks separately and noted that that was a factor in it.

[00:16:40] Speaker 05:
I guess I'm pretty persuaded by Appellan's argument that the similarity of the marks, especially given that they're just in blank script, is really, really very strong.

[00:16:53] Speaker 05:
I mean, baby's magic tea and baby magic, it seems

[00:16:56] Speaker 05:
Seems like they're awfully, awfully similar.

[00:16:59] Speaker 05:
So why shouldn't that be given more weight?

[00:17:02] Speaker 02:
Well, there's no dispute as to what you're saying, Your Honor.

[00:17:05] Speaker 02:
The key there is the conceptual strength of the actual trademark.

[00:17:08] Speaker 02:
And in this case, again, the trademark was made up of two words, baby.

[00:17:12] Speaker 05:
But you're arguing that as though you can somehow prove that the word baby magic is not distinctive.

[00:17:17] Speaker 05:
It is a registered trademark, and therefore entitled to a presumption of distinctiveness.

[00:17:22] Speaker 02:
It absolutely is entitled to a presumption of distinctiveness.

[00:17:25] Speaker 02:
However, the word baby is disclaimed.

[00:17:28] Speaker 02:
So that is primatation evidence of its descriptiveness as well as its dictionary definition.

[00:17:32] Speaker ?:
And of course, this court and the board have found over and over

[00:17:35] Speaker ?:
that third-party evidence conceptually can weaken the strength of a trademark, which it did in this case.

[00:17:40] Speaker 02:
If you look at the Jack Wilson case, for example, this is on par with that with a number of actual trademarks that we're dealing with in this situation.

[00:17:49] Speaker 02:
And so I think that that was a key factor of the board's analysis in noting the weakness of the actual trademark.

[00:17:55] Speaker 02:
And when you look at the scale of trademarks, going from descriptiveness to fanciful, that is a major consideration as to how much weight can be afforded

[00:18:05] Speaker 02:
uh... to how much freedom you have to protect others from getting anywhere near your trademark.

[00:18:10] Speaker 02:
This is a case where the board specifically noted that the trademark is conceptually weak.

[00:18:16] Speaker 05:
What about the relatedness of the party's goods?

[00:18:19] Speaker 05:
Could you address that?

[00:18:20] Speaker 02:
I think Your Honor, in this case, it really comes down to that factor in its own being key, as it always is, the actual strength of the actual trademark itself, and looking at the similarity between the two.

[00:18:33] Speaker ?:
There's no dispute

[00:18:34] Speaker 02:
You think that both straight marks can take the word magic, and one can take baby, and one can take baby, but when one selects the great mark... Would you give me a favor?

[00:18:41] Speaker 05:
Would you please address the relatedness of the party's goods?

[00:18:46] Speaker 02:
Absolutely.

[00:18:47] Speaker 02:
The relatedness of the party's goods in this case is such that the board did not find that they were related in terms of one being adjustable and one being topical.

[00:18:57] Speaker 02:
And in this case, again, it was the appellant's burden to actually show that, and they failed to do so, as the board noted in this case.

[00:19:05] Speaker 02:
And I was certainly glad to address questions regarding that, but I think it's quite clear that ingestible tea and topical products are not related in this case, other than the fact that they're both sold to people that are looking for goods for babies.

[00:19:19] Speaker 03:
Are you continuing that if they're in different classes, that almost per se means they're not related?

[00:19:26] Speaker 02:
It's not that they're not related, something could be related even if it is in a different class.

[00:19:33] Speaker 02:
There is case law specifically that says that the classification number is an administrative function, and it's not to be seen as something that makes a determination as to relationship or not.

[00:19:43] Speaker 02:
It's actually based upon the actual goods themselves, and in this case, it's the appellant seeking to make the cancellation in this case, and so it has to be something where they establish that the actual goods themselves

[00:19:53] Speaker 04:
in this case dealing with things like shampoo or related to tea I asked you earlier whether the board concluded that the evidence about these

[00:20:06] Speaker 04:
companies with what they call umbrella brands, where there's companies that have goods, use the same trademark to cover goods in both fields.

[00:20:14] Speaker 04:
I asked you, I said, didn't the board find that irrelevant?

[00:20:18] Speaker 04:
You said, no.

[00:20:18] Speaker 04:
But how am I to understand?

[00:20:20] Speaker 04:
This is on page 836.

[00:20:22] Speaker 04:
It says, Dr. Kim's contention that baby bath care and lotion products and Medicaid teas are a good fit for umbrella branding is irrelevant and tells us nothing whether a petitioner specifically has current technology or know how to produce medical teas.

[00:20:36] Speaker 04:
that it's talking about the prevalence of umbrella brands in this market, i.e.

[00:20:43] Speaker 04:
baby-carrying childhood products, that have fallen in both categories.

[00:20:47] Speaker 04:
Why is that not a finding that this kind of evidence is irrelevant?

[00:20:52] Speaker 02:
Well, if you look at the view that the board analyzed that, first of all, they went through, that those statements were not based upon fact, or that the actual witness in this case provided evidence to where that information came from,

[00:21:03] Speaker 02:
Secondly, it's a situation where they did not establish all the required factors to deal with that.

[00:21:09] Speaker 02:
And umbrella branding is basically dealing with the natural zone of expansion.

[00:21:12] Speaker 04:
I don't think they were using umbrella branding to mean zone of expansion.

[00:21:16] Speaker 04:
I think it was a separate argument.

[00:21:19] Speaker 04:
And we have case law that says that it can be considered relevant evidence outside of the natural zone of expansion doctrine.

[00:21:29] Speaker 02:
The way that I see it is the way that the board found in this case is that they were addressing that the appellant was not saying natural zone of expansion.

[00:21:36] Speaker 02:
The appellant was saying umbrella branding, and they made the actual finding, in other words, that that's what they made the analysis of, that's what they were referring to when they said umbrella branding, that they were referring to a natural zone of expansion, which is why they went through those factors.

[00:21:52] Speaker 02:
That's all I wanted to know.

[00:21:53] Speaker 05:
All right, Council, anything further?

[00:21:56] Speaker 02:
I'll just say briefly, again, I think it comes down to, in this case, that there is substantial evidence to support the board's finding.

[00:22:03] Speaker 02:
And if this Honorable Court finds that there is substantial evidence, that the ruling should be left alone and be seen as conclusory.

[00:22:12] Speaker 02:
And finally, that it is the appellant that has the burden in this case and has not met their burden in terms of the actual thing, in terms of the actual trademarks themselves, in establishing similarity, and in terms of the actual goods themselves.

[00:22:24] Speaker 02:
I think it's an honorable report for its time, and I'm certainly glad to answer any of the questions.

[00:22:29] Speaker 05:
Okay, thank you.

[00:22:30] Speaker 05:
Mr. Hernandez, you have some rebuttal time.

[00:22:33] Speaker 01:
Thank you, Your Honors.

[00:22:34] Speaker 01:
I'd like to touch on a couple of points.

[00:22:38] Speaker 01:
First, as my friend on the opposing side conceded, the trade channels are overlapped.

[00:22:47] Speaker 01:
They are related.

[00:22:49] Speaker 01:
There's evidence in the record supporting this.

[00:22:52] Speaker 01:
So that brings us to three factors that weigh in favor of confusion.

[00:22:57] Speaker 01:
Now, I'd like to clarify my friend's statements that the board found baby magic is weak.

[00:23:07] Speaker 01:
That's not correct.

[00:23:08] Speaker 01:
When the board was analyzing the spectrum of fame, it concluded that conceptually, it appeared it was weak, which narrowed that fame scope.

[00:23:20] Speaker 01:
It brought it back to the middle.

[00:23:22] Speaker 01:
of the spectrum.

[00:23:24] Speaker 01:
It does not impact the similarity of the marks.

[00:23:28] Speaker 01:
Further, ReCOT, again, supports this.

[00:23:32] Speaker 01:
It doesn't matter how much fame is present.

[00:23:34] Speaker 01:
As long as fame is present, it must be weighed, and it must weigh in favor of the senior user.

[00:23:42] Speaker 01:
And then concerning the lateness of the goods, there was some discussion about the evidence of third parties.

[00:23:51] Speaker 01:
Again, this is the exact type of evidence that this court considered extremely pertinent.

[00:23:57] Speaker 01:
Accordingly, it should have been considered pertinent.

[00:23:59] Speaker 04:
Do you think that that argument and that evidence just related to natural zone of expansion?

[00:24:03] Speaker 04:
That seems to be what your adversary is suggesting.

[00:24:07] Speaker 01:
No, Your Honor.

[00:24:08] Speaker 01:
And in the board's opinion... Yeah, go ahead.

[00:24:11] Speaker 04:
I'm sorry.

[00:24:11] Speaker 01:
In the board's opinion,

[00:24:14] Speaker 01:
it acknowledged that, it cited RECAW, in fact, that evidence is pertinent to the source, the origin of the goods.

[00:24:25] Speaker 01:
So it's not just related to natural expansion.

[00:24:30] Speaker 01:
It's related to the origin of the goods.

[00:24:34] Speaker 03:
Mary, any further?

[00:24:35] Speaker 03:
I have one last question for you.

[00:24:37] Speaker 03:
Can you speak to appendix page 24 where

[00:24:40] Speaker 03:
discussion is about the fact that said baby magic mark is it's not clearly shown that baby magic mark is commercially strong let alone famous it's at the bottom of appendix 24.

[00:24:52] Speaker 01:
Right your honor so that discussion pertains to how much fame baby magic has.

[00:24:57] Speaker 01:
Now the board's based on the evidence which for the purposes of this appeal we accept

[00:25:03] Speaker 01:
But the board, based on the evidence of record, determined that it wasn't on the highest end of the spectrum.

[00:25:09] Speaker 01:
It wasn't commercially strong to have that high end of spectrum fame.

[00:25:14] Speaker 01:
Instead, based on the evidence of record, it fell in the middle of that spectrum.

[00:25:20] Speaker 01:
That's what the board was saying for that sentence.

[00:25:23] Speaker 03:
And you said just a few minutes ago that you said three factors support you.

[00:25:26] Speaker 03:
Could you just sum up, and maybe this is your last word, what those three factors are?

[00:25:30] Speaker 01:
Right, Your Honor.

[00:25:32] Speaker 01:
So it's undisputed that the marks are confusingly similar.

[00:25:35] Speaker 01:
That's the first factor.

[00:25:38] Speaker 01:
Second, Baby Magic has a level of fame.

[00:25:42] Speaker 01:
That factor must be weighed in favor of Matera.

[00:25:45] Speaker 01:
That's two factors.

[00:25:47] Speaker 01:
Three, the channels of trade overlap.

[00:25:51] Speaker 01:
The evidence demonstrates this.

[00:25:53] Speaker 01:
That's three factors.

[00:25:55] Speaker 01:
And then fourth, at worst, the relatedness of the goods is neutral.

[00:26:00] Speaker 01:
Again, based on the evidence that the board ignored.

[00:26:07] Speaker 01:
If there are no further questions, I will yield the rest of my reply.

[00:26:11] Speaker 05:
Okay.

[00:26:12] Speaker 05:
I thank both counsel.

[00:26:13] Speaker 05:
This case is taken under submission.