[00:00:00] Speaker 05:
And the first oral argument of the morning is docket number 23-1308, Inray, C.E.

[00:00:08] Speaker 05:
Sheppard Company.

[00:00:09] Speaker 05:
Mr. Forbes, whenever you're ready, please begin.

[00:00:12] Speaker 05:
You've reserved five minutes for rebuttal, is that right?

[00:00:17] Speaker 05:
Yes, Your Honor.

[00:00:18] Speaker 00:
OK.

[00:00:19] Speaker 00:
Good morning, Your Honors.

[00:00:20] Speaker 00:
Thank you for taking the time to hear this oral argument.

[00:00:23] Speaker 00:
As I'm sure you are all aware, there are three primary issues.

[00:00:30] Speaker 00:
in this appeal of C.E.

[00:00:32] Speaker 00:
Sheppard Company's attempt to register its proposed marked modular Gavion systems.

[00:00:40] Speaker 00:
The primary and most important issue in Appellant's mind is the fact that the board and its ruling failed to, or the ruling fails under the Chenery Doctrine, as I'm sure

[00:00:58] Speaker 00:
this panel is aware, Channery requires that an agency explain all of its reasons for its decision adequately in the record.

[00:01:11] Speaker 00:
Unlike an Article III court, as the USPTO argues,

[00:01:19] Speaker 00:
It cannot rely on just evidence in the record.

[00:01:22] Speaker 00:
It must adequately explain its decision.

[00:01:25] Speaker 00:
And that's based off of Charles G. Williams and his progeny.

[00:01:28] Speaker 05:
I believe the most recent decision on that is... The trademark court decision here is 53 pages long.

[00:01:33] Speaker 05:
Can you identify where the opinion ends up lacking in some way?

[00:01:41] Speaker 00:
Well, as set forth in our briefs and I'll flip to the opinion, Your Honor, one of the primary issues that the appellant sees is that the entirety of the decision divorces the analysis from the actual relevant public.

[00:02:11] Speaker 00:
under the required factors that must be considered in looking at a mark, particularly with genericness, the relevant public is what is to be considered.

[00:02:22] Speaker 00:
And the relevant public, everybody has agreed, the relevant public are contractors, U.S.

[00:02:29] Speaker 00:
government customers, and among other things as well as the

[00:02:40] Speaker 00:
entities performing large-scale erosion control projects.

[00:02:46] Speaker 00:
These are largely, according to the affidavits set forth in the record, which a number of them are at appendix 555 and through, I believe, 600.

[00:03:04] Speaker 02:
To follow up on Judge Chen's question, though, is there a specific page

[00:03:08] Speaker 02:
that you think is lacking or something you can point to in the decision?

[00:03:12] Speaker 00:
I'm sorry.

[00:03:13] Speaker 00:
Sorry, Judge Chen.

[00:03:15] Speaker 00:
There is something specific lacking in the decision.

[00:03:17] Speaker 00:
I will pull the actual page, Your Honor.

[00:03:23] Speaker 00:
When you look at the decision on page

[00:03:35] Speaker 00:
Again, on Appendix 13, it notifies the general public.

[00:03:42] Speaker 00:
But when you look at the analysis of the

[00:03:55] Speaker 00:
The definition of modular Gavion systems.

[00:03:59] Speaker 00:
The board takes a generic look at the dictionary definitions.

[00:04:11] Speaker 02:
Sorry, you're referring to Appendix Page 15.

[00:04:13] Speaker 02:
Do you have a page?

[00:04:14] Speaker 00:
Yes, ma'am.

[00:04:15] Speaker 00:
Appendix Page 15.

[00:04:16] Speaker 00:
I apologize.

[00:04:18] Speaker 00:
Appendix Page 15.

[00:04:19] Speaker 00:
The board looks at modular, gabion, and then system using the Webster's dictionary definitions.

[00:04:27] Speaker 00:
That was after it already analyzed that this was a very niche trade market.

[00:04:39] Speaker 00:
The record indicates that the niche trade market looks at the ideas of modular and systems differently.

[00:04:52] Speaker 00:
You know modular is customizable and the affidavits from the customers as well as the other evidence in the record demonstrate that particularly the

[00:05:04] Speaker 00:
the advertising information, the flyers from the appellant indicates that these are not prefab materials as indicated by the dictionary definition.

[00:05:19] Speaker 00:
They're actually customizable.

[00:05:22] Speaker 05:
And when you... I guess the question, though, is not so much how much does the term modular gabion systems you're applying for, Mark, match up to whatever products you're selling.

[00:05:38] Speaker 05:
The question is to what extent is the term modular gabion systems generic for what you applied for, which I believe was

[00:05:51] Speaker 05:
Gabions of steel wire, is that right?

[00:05:54] Speaker 00:
Well the allocations say Gabions of steel wire what we argued at the Board level and what the board Accepted from the standpoint of taking everything in the light most favorable to the applicant was that the the actual the actual genus of product is

[00:06:15] Speaker 00:
wire mesh products.

[00:06:17] Speaker 05:
Could you explain why you wanted to redefine the products related to your mark from from gabions of steel wire to wire mesh products?

[00:06:29] Speaker 05:
Because that's what you applied for.

[00:06:32] Speaker 00:
I understand your honor and wire mesh products is a more appropriate

[00:06:38] Speaker 00:
Indicator of what modular gabion systems the trade does modular gabion systems doesn't just Sell gabion products their Brand products also include managers enrollment.

[00:06:56] Speaker 05:
You're saying modular gabion systems right now in reference to the name of the company right not In reference to the brand right this is a little confusing.

[00:07:06] Speaker 05:
We've got the name of I guess

[00:07:08] Speaker 05:
the company's modular gabion systems, and then your mark for your products is modular gabion systems, is that right?

[00:07:17] Speaker 00:
The mark for the products is modular gabion systems, Your Honor.

[00:07:20] Speaker 00:
The name of the company is CE Shepard Company LP.

[00:07:24] Speaker 00:
Modular gabion systems

[00:07:27] Speaker 00:
There used to be a Modular Gabion Systems Incorporated that sold the Modular Gabion Systems products.

[00:07:35] Speaker 00:
That was owned by CE Shepard Company LP, but that was dissolved and moved in as a division of CE Shepard Company LP.

[00:07:43] Speaker 00:
So there is a Modular Gabion Systems division.

[00:07:47] Speaker 00:
that markets the modular gabion systems product under the CE Sheppard Company LP.

[00:07:54] Speaker 05:
Mr. Forbes, we're already running out of time.

[00:07:57] Speaker 05:
Can we put the Chenery legal argument to the side and focus just on the fact finding the board made that modular gabion systems is generic for the goods that you're applying for and then

[00:08:12] Speaker 05:
And then if you have time, also getting to the acquired distinctiveness or lack thereof fact finding by the board.

[00:08:20] Speaker 05:
Yes, sir.

[00:08:21] Speaker 05:
We have to give a deferential standard review here for those fact findings.

[00:08:27] Speaker 05:
And so you have to identify it to us as quickly as you can.

[00:08:31] Speaker 05:
What was it that the board did that was so unreasonable in reaching this finding?

[00:08:40] Speaker 00:
With respect to genericness, on the, again with the definition, modular gabion systems, it was divorced from the trade definition, which in light of, because the primary consideration is the actual market that's using this product, so it's more appropriate to use the trade definition, because this is a narrow trade.

[00:09:08] Speaker 00:
primarily sales to the federal government.

[00:09:11] Speaker 00:
The board also failed when it analyzed the usage by the public.

[00:09:25] Speaker 00:
It pointed to Amazon products that don't use the full name of the mark that we are seeking to register.

[00:09:38] Speaker 00:
It doesn't look at the requested mark as a whole.

[00:09:41] Speaker 00:
That's one part of the problem.

[00:09:43] Speaker 05:
So I recall they identified different types of third-party usage evidence, some using the term modular gabion systems, other usages from modular gabions, and then others for gabion systems.

[00:09:56] Speaker 00:
The only usage of modular gabion systems in the US during the relevant time frame was an entity that actually

[00:10:08] Speaker 00:
misappropriated C.E.

[00:10:12] Speaker 00:
Sheppard Company's modular gadget and systems mark.

[00:10:15] Speaker 00:
And when C.E.

[00:10:16] Speaker 00:
Sheppard Company sent a cease and desist letter, that usage was withdrawn.

[00:10:23] Speaker 03:
Wasn't there evidence that those websites that the board relied on were accessible in the U.S.

[00:10:28] Speaker 03:
or to U.S.

[00:10:29] Speaker 03:
customers?

[00:10:31] Speaker 00:
They are accessible to U.S.

[00:10:33] Speaker 00:
customers, but... And they're in English, right?

[00:10:36] Speaker 03:
They are in English, but... Does that make that an appropriate consideration for the board to weigh into its evidentiary decision?

[00:10:44] Speaker 00:
No, because the customers, again, that Sea Shepherd Company utilizes, or that utilize Sea Shepherd Company's products, they're federal government agencies, they're contractors working for federal government agencies, state agencies,

[00:11:01] Speaker 00:
These are miles long, multi-year projects.

[00:11:05] Speaker 00:
These are not items that are going to be purchased off to Amazon, things of that nature.

[00:11:11] Speaker 00:
And that's the type of information that was relied upon.

[00:11:14] Speaker 00:
And they're prefab.

[00:11:16] Speaker 00:
They're not customized.

[00:11:18] Speaker 00:
And again, with the idea of these being prefab products, I'm sorry.

[00:11:24] Speaker 02:
What is your best support for saying it's improper to rely on this information?

[00:11:29] Speaker 00:
I'm sorry, Judge Cunningham.

[00:11:30] Speaker 02:
You were just having a nice chat, I think, with Jeff Stark, about the information that was relied on.

[00:11:35] Speaker 02:
Do you have some good legal support to say it's improper to rely on that information?

[00:11:40] Speaker 00:
Yes, Your Honor.

[00:11:41] Speaker 00:
There is, in our brief, it says, well,

[00:12:04] Speaker 05:
Mr. Forbes, maybe you can find it on the bottle.

[00:12:09] Speaker 00:
Yes, your honor.

[00:12:11] Speaker 00:
With respect to acquired distinctiveness, again, the board, you know, Sea Shepherd presented evidence of all six of the relevant factors and the board really discounted those factors without

[00:12:32] Speaker 00:
any explanation.

[00:12:33] Speaker 00:
They treated them all as neutral.

[00:12:35] Speaker 00:
For example, the affidavits from the customers that C.E.

[00:12:41] Speaker 00:
Sheppard provided, the board said that that wasn't probative because they were customers, but the board didn't analyze the substance of those affidavits.

[00:12:53] Speaker 00:
And so the affidavits, the actual substance of those affidavits should have been considered as well as

[00:13:01] Speaker 00:
the fact that those customers are leaders in the particular consuming public that this mark targets.

[00:13:12] Speaker 00:
It also ignores the idea that, from the standpoint of advertising, that this particular type of trade does not

[00:13:30] Speaker 00:
advertised because again these at least not in the context of like the Gibson guitar or Soccer balls, which are the types of cases that the board relied on and analyzing Mr. Forbes you're pretty deep in your rebuttal.

[00:13:47] Speaker 05:
Do you want to still reserve time for rebuttal?

[00:13:49] Speaker 05:
Oh, yes, your honor Okay, yeah, we'll reserve two minutes for rebuttal, okay?

[00:13:58] Speaker 05:
Thank you Let's hear from the government

[00:14:23] Speaker 01:
May it please the court?

[00:14:24] Speaker 01:
Modular gabion systems is generic for modular gabion systems.

[00:14:30] Speaker 01:
They are a kind of wire mesh product.

[00:14:33] Speaker 01:
And substantial evidence supports the board's finding here, because not only do we have a wealth of C.E.

[00:14:39] Speaker 01:
Sheppard's own use of modular gabion systems to identify a kind

[00:14:46] Speaker 01:
of wire mesh product of a kind of gabion of steel wire.

[00:14:50] Speaker 01:
But we also have third party examples.

[00:14:53] Speaker 01:
The industry, the trade, uses modular gabion systems to identify a kind of wire mesh product.

[00:15:02] Speaker 01:
Whether we're calling it a wire mesh product or a gabion of steel wire, modular gabion systems is still the name of a kind of product.

[00:15:12] Speaker 05:
Can you explain why the Trademark Board entertained the idea of recharacterizing what the class of goods that were relevant here from what was actually in the application to something else?

[00:15:27] Speaker 01:
Well, Your Honor, typically the Board would look to the identification of goods to define the genus.

[00:15:37] Speaker 01:
But here, where there was evidence of record, and CE Shepard was relying on that to describe its goods.

[00:15:44] Speaker 01:
And I'd like to note that at APPX99, this is a screen capture of CE Shepard's website.

[00:15:52] Speaker 01:
I'm going to quote, modular gabion systems are engineered welded wire mesh products.

[00:15:58] Speaker 01:
I don't think the board had to go too far to say that, based on this record, they could define the genus as wire mesh product.

[00:16:05] Speaker 03:
But normally, I take it they would just look at what the application says.

[00:16:09] Speaker 03:
And here, they seem to go further than that.

[00:16:12] Speaker 03:
Why would they do that here?

[00:16:15] Speaker 01:
Yeah, and I hear the, I think what the board, how they explain it was that they said that in order to, I believe it was a Swage CE Shepherd, they would define it as the wire mesh products, right?

[00:16:29] Speaker 01:
Because doubt on the issue of whether a term is generic must be resolved in favor of the applicant.

[00:16:34] Speaker 01:
and to a sewage applicant, we analyzed the genus of goods as wire mesh products.

[00:16:38] Speaker 01:
That's APPX12.

[00:16:39] Speaker 01:
So here, they were looking at this.

[00:16:41] Speaker 01:
And as counsel said, looking at it in the lightmost fear bubble.

[00:16:45] Speaker 05:
Is there any dispute that it changes the analysis, whether we understand the class of goods to be gabions of wire steel versus wire mesh products?

[00:16:57] Speaker 05:
The analysis is exactly the same?

[00:17:00] Speaker 01:
I think so.

[00:17:02] Speaker 01:
Here we have all of this evidence.

[00:17:04] Speaker 05:
But it's exactly the same, because gabions of wire steel is some species of the genus of wire mesh products.

[00:17:14] Speaker 05:
And if the term modular gabion systems is, in fact, generic of some species of wire mesh products, then that's all that is required for finding that the term is generic for the goods applied for wire mesh products.

[00:17:29] Speaker 01:
Yes, Your Honor.

[00:17:31] Speaker 05:
OK.

[00:17:32] Speaker 05:
In Ray Perdura?

[00:17:34] Speaker 01:
Right.

[00:17:34] Speaker 05:
OK.

[00:17:36] Speaker 01:
And also Crown Royal, where zero, right, was a subgenus of the beverages.

[00:17:43] Speaker 05:
Royal Crown.

[00:17:45] Speaker 01:
Royal Crown.

[00:17:46] Speaker 01:
Yeah.

[00:17:46] Speaker 01:
OK.

[00:17:46] Speaker 01:
Sorry.

[00:17:48] Speaker 01:
I misspoke.

[00:17:50] Speaker 02:
Can you also respond to opposing counsel's argument and concern he raised about looking at the foreign sources by the war?

[00:17:59] Speaker 01:
Absolutely, Your Honor.

[00:18:01] Speaker 01:
Here at APPX 36 and 37, we have the board's analysis of the foreign evidence.

[00:18:13] Speaker 01:
And they relied on this course precedence, Bayer, for their guidance to determine what weight they would be giving this evidence.

[00:18:23] Speaker 01:
And they looked at things like, is the foreign website

[00:18:26] Speaker 01:
Is it in English?

[00:18:28] Speaker 01:
Are these products, are these goods of a kind that could be purchased by a US consumer?

[00:18:35] Speaker 01:
And on this record, what they had was evidence that these manufacturers, these companies that had these websites, were actually selling internationally.

[00:18:46] Speaker 01:
They were selling to the United States.

[00:18:48] Speaker 01:
They had phone numbers for US consumers to call to get more information and to purchase.

[00:18:53] Speaker 01:
the modular gabion systems they were advertising.

[00:18:57] Speaker 01:
So they were citing to APPX for $4.99, $5.05, and $5.08 when they made this determination.

[00:19:04] Speaker 03:
But what about the contention that the purchasers here are typically government entities for mile long gabion walls, and they're not going to just go on Amazon or foreign versions of Amazon and buy these items?

[00:19:20] Speaker 03:
Did the board consider that evidence, or did it have that evidence in front of it?

[00:19:28] Speaker 01:
When we're talking about a foreign website, it doesn't have to just be someone will absolutely purchase from it, because the information is out there and informs the meaning of these terms for the potential consumer.

[00:19:46] Speaker 01:
And counsel says that the consumers are US agencies

[00:19:52] Speaker 01:
But that might be true for its current consumers, the affidavits, the information that they provided.

[00:19:59] Speaker 01:
But the relevant consuming public extends beyond the current purchasers.

[00:20:04] Speaker 01:
It involves prospective purchasers, purchasers who may just be doing a Google search to figure out more.

[00:20:10] Speaker 05:
I thought the relevant public here was defined to encompass not just the Army Corps of Engineers, but it's also landscapers, contractors, architects.

[00:20:21] Speaker 05:
we're dealing with a bunch of non-government entities, including government entities, as being defined as being part of the undisputed relevant public here.

[00:20:30] Speaker 01:
Exactly, Your Honor.

[00:20:32] Speaker 01:
Because the relevant consuming public goes beyond just a US government agency, but does include the more general public, so to speak, it is not inappropriate to look at these foreign websites

[00:20:46] Speaker 03:
Could you speak to the evidence about, I think it's chunky river supply, copying maybe a photograph and maybe copying their mark and what evidence or what weight the board gave to that evidence?

[00:21:00] Speaker 01:
Certainly.

[00:21:11] Speaker 05:
Do you think we should consider it?

[00:21:13] Speaker 05:
Or do you think we should push it to the side?

[00:21:17] Speaker 05:
The board didn't consider it as evidence of intentional copying because... But it did consider it as evidence of third-party usage that would support the idea that this term is generic, right?

[00:21:31] Speaker 01:
Yes, it did consider it, but it also did note in its footnote that C.E.

[00:21:37] Speaker 01:
Sheppard had presented some arguments that this was

[00:21:43] Speaker 01:
you know, their photograph on the website, and that it shouldn't be considered.

[00:21:51] Speaker 01:
So taking it from the perspective, right, looking at- I'm sorry.

[00:21:54] Speaker 04:
Did you say it should be considered?

[00:21:55] Speaker 04:
The board said it should be considered, or the board said it should not be considered?

[00:21:58] Speaker 01:
I'm so sorry.

[00:21:59] Speaker 01:
I misspoke.

[00:21:59] Speaker 01:
They considered the argument and addressed it in the footnote.

[00:22:03] Speaker 01:
And I'm sorry.

[00:22:14] Speaker 02:
So maybe I'll finish page 23.

[00:22:18] Speaker 01:
Yes, Your Honor.

[00:22:19] Speaker 01:
Thank you.

[00:22:21] Speaker 01:
Great.

[00:22:21] Speaker 01:
In that footnote, it addresses that argument.

[00:22:29] Speaker 01:
But I'd also note that in the footnote, the board isn't citing to see E. Shepard's opening brief there.

[00:22:41] Speaker 01:
they're citing to the reply brief.

[00:22:44] Speaker 01:
So to the extent that C.E.

[00:22:46] Speaker 01:
Sheppard didn't make this argument before the board initially, there may be a question of whether it needed to be addressed.

[00:22:58] Speaker 01:
But to your point of whether it was intentional copying under the acquired distinctiveness analysis,

[00:23:08] Speaker 01:
What the board had before it was C.E.

[00:23:10] Speaker 01:
Shepard's argument that they had our photograph.

[00:23:14] Speaker 01:
We told them to take it down.

[00:23:15] Speaker 01:
They took it down.

[00:23:17] Speaker 01:
But that isn't evidence of intentional copying.

[00:23:19] Speaker 01:
That's evidence of someone being told to take something down and doing it.

[00:23:24] Speaker 01:
And there are any number of reasons that a party could do that.

[00:23:28] Speaker 01:
It could be to avoid litigation.

[00:23:29] Speaker 01:
That isn't a reason to consider it intentional copying under this factor.

[00:23:36] Speaker 05:
I would think you would argue that you don't need chunky river.

[00:23:41] Speaker 05:
You've got all these other third-party usages.

[00:23:43] Speaker 05:
You've got the applicant's own use.

[00:23:45] Speaker 05:
You've got the dictionary definitions.

[00:23:47] Speaker 05:
And you add them all up, modular, dabbling, systems.

[00:23:51] Speaker 05:
The meaning that you take away is exactly the same as just the mere combination of those three words by definition.

[00:24:00] Speaker 05:
Therefore, there's substantial evidence that this mark is generic.

[00:24:06] Speaker 01:
That is absolutely what I should have said, Your Honor.

[00:24:08] Speaker 02:
Well, how about this?

[00:24:12] Speaker 02:
I think this is one that you'll probably agree with.

[00:24:16] Speaker 02:
If we agree with the board that the proposed park is generic, we do not need to reach the issue of acquired distinctiveness.

[00:24:23] Speaker 02:
Is that right?

[00:24:23] Speaker 02:
That is correct, Your Honor.

[00:24:27] Speaker 05:
When we look at the applicant's own uses of modular gabion systems and its own brochures and whatnot,

[00:24:35] Speaker 05:
Sometimes it's hard to tell whether they're using it in a mere generic way or they're using it as an attempt to identify and promote a brand, a brand name called Modular Gavion Systems.

[00:24:53] Speaker 05:
Now maybe there's an argument that while you're still

[00:24:56] Speaker 05:
It's still a generic term, regardless of any business's attempt to try to use a generic word as a brand name.

[00:25:03] Speaker 05:
But nevertheless, it could be still nevertheless an attempt to use it in a brand name kind of a way.

[00:25:11] Speaker 05:
And it felt a little ambiguous to me, some of the usages by the applicant.

[00:25:17] Speaker 05:
One could read some of those references to Modular Gavion Systems in its papers

[00:25:24] Speaker 05:
indicating that it believes it has a brand called Modular Gathering Systems.

[00:25:31] Speaker 05:
I mean, it capitalizes the M and the G and the S, right?

[00:25:38] Speaker 04:
That's correct.

[00:25:38] Speaker 05:
Is that kind of an indicator to the trademark office that you're using that term in kind of a brand name way rather than just a regular old generic way, like if you were to say the word stapler?

[00:25:54] Speaker 01:
Well, certainly capitalization is something that the office looks at.

[00:25:57] Speaker 01:
But as you pointed out earlier, Your Honor, the overwhelming evidence in this record is demonstrating that modular gabion systems are a kind of gabion.

[00:26:09] Speaker 01:
And so any capitalization, any use of the TM symbol

[00:26:14] Speaker 01:
isn't going to change what the consumers perceive this phrase to be, the name of a kind of gabion of steel wire, into a trademark.

[00:26:27] Speaker 01:
But if there's a certain usage that you'd like me to speak to, I'm happy to do so.

[00:26:34] Speaker 05:
I don't remember if there are exhibits using TM next to the term, did they?

[00:26:44] Speaker 01:
I don't have the exact APPX site, but one of their website screen captures was originally submitted.

[00:26:53] Speaker 01:
And in a second response or a request for reconsideration, the phrase modular gabion systems then had the TM symbol after it.

[00:27:11] Speaker 01:
There's nothing else?

[00:27:12] Speaker 05:
Okay.

[00:27:14] Speaker 05:
Thank you, Ms.

[00:27:14] Speaker 05:
Dickey.

[00:27:15] Speaker 01:
Thank you.

[00:27:16] Speaker 01:
We ask that the court affirm the board's decision on both grounds.

[00:27:38] Speaker 00:
Your honors, to answer Judge Cunningham's question, and I apologize, the citation with respect to use of foreign countries that C.E.

[00:27:49] Speaker 00:
Shepherd Company relies upon is Person's Company v. Prisman, 900 Ft.

[00:27:54] Speaker 00:
Second, 1565, which is a 1990 decision.

[00:28:00] Speaker 00:
Appellate Board.

[00:28:03] Speaker 00:
With respect to the idea of what C. Sheppard Company was arguing about the propriety of considering gab in systems or modular gab in separately, C. Sheppard Company would point the board to the state of PD Beckwith, which holds that the board's consideration of fragments of the party is improper.

[00:28:29] Speaker 00:
The only proper consideration is how the phrase is used as a whole.

[00:28:33] Speaker 00:
And that's a big problem with how the board analyzed it, and the board does not explain anywhere why it did this.

[00:28:41] Speaker 00:
Also, when you are looking at the U.S.

[00:28:44] Speaker 00:
examples that the board relied upon, aside from the one singular U.S.

[00:28:50] Speaker 00:
use of modular gabion systems, which was the chunky river supply, again, a misappropriation issue,

[00:28:56] Speaker 00:
The other ones that it, and that would be the only quote unquote competitor at this point, the other usages of modular gabion systems all point back to CE Shepard Company, which is further evidence of CE Shepard Company's brand name usage, trade name usage, trade dress of this mark.

[00:29:23] Speaker 00:
And there's no explanation in the record

[00:29:27] Speaker 00:
Indicating why this why this is discarded why this wasn't considered.

[00:29:32] Speaker 00:
It's just Hey, here's a website that also says modular gabion systems without denoting it all that This links to see a shepherd company Are there any further questions from the panel Thanks very much, mr. Forbes the kids submitted Thank you, your honor