[00:00:00] Speaker 01: The next case for argument is 23-1573 NRA PT MetaSafe Technology. [00:00:08] Speaker 01: We're ready whenever you are. [00:00:12] Speaker 03: Good morning. [00:00:12] Speaker 03: Good morning. [00:00:13] Speaker 03: May it please the court? [00:00:14] Speaker 03: My name is Perry Clark. [00:00:15] Speaker 03: I represent the appellant, PT MetaSafe Technologies, which was the applicant below for the trademark registration at issue in this case. [00:00:26] Speaker 03: The registration, we sought registration [00:00:30] Speaker 03: for the mark, which is the color dark green, a specific Pantone 3285C covering the entire surface of medical examination gloves. [00:00:41] Speaker 03: The goods at issue were chloroprene medical examination gloves sold to authorized resellers. [00:00:48] Speaker 03: The trademark office refused registration on two grounds. [00:00:51] Speaker 03: First, that the mark was generic. [00:00:54] Speaker 03: Second, that the mark was lacking in acquired distinctiveness. [00:00:58] Speaker 03: We take issue with both refusals, and I'll address genericness first. [00:01:05] Speaker 03: Genericness derives from the statute. [00:01:08] Speaker 03: It derives from 15 USC 1064, Section 3, which allows for the cancellation of a trademark that becomes the generic name for the goods or services on which it's registered. [00:01:22] Speaker 03: The phrase generic name is not defined in the statute. [00:01:26] Speaker 03: It means what it says. [00:01:27] Speaker 03: It means that the mark has become the name, the identifier of the goods or services. [00:01:35] Speaker 03: As interpreted by the Supreme Court, generic name is something that refers to the goods at issue in the registration. [00:01:45] Speaker 03: Our argument here is that the color green, 3285C, does not name [00:01:52] Speaker 03: or refer to the category of goods known as chloroprene medical examination gloves. [00:01:58] Speaker 00: How do you harmonize that argument with the clear law that a trade dress can become generic but trade dress is also not a name and doesn't quote refer to a product or service? [00:02:11] Speaker 03: Yeah, I think so I think trade dress can. [00:02:14] Speaker 03: can be the name for a product choice. [00:02:17] Speaker 00: It can refer... In a way that a color cannot? [00:02:21] Speaker 03: A color could as well. [00:02:22] Speaker 03: I mean, you can think of examples of where [00:02:24] Speaker 03: a color could refer to a category of goods or services. [00:02:29] Speaker 00: So maybe I misunderstand your argument. [00:02:31] Speaker 00: Are you conceding that a color can be generic? [00:02:34] Speaker 00: Yes. [00:02:35] Speaker 00: And therefore not registrable, correct? [00:02:37] Speaker 03: A color can be generic, yes. [00:02:39] Speaker 00: I thought you were fighting that premise. [00:02:42] Speaker 00: So then what's wrong with the Milwaukee test that the board came up with for determining when and whether a color is generic? [00:02:51] Speaker 03: So the Milwaukee test asks not whether it's a generic name or whether the mark refers to the goods or services. [00:02:59] Speaker 03: It asks whether the matter sought to be registered is understood by the relevant public primarily as a category or type of trade dress for the genus of goods at issue. [00:03:12] Speaker 03: And our problem there is that test doesn't capture the notion in the statute of naming. [00:03:18] Speaker 03: Simply identifying something [00:03:20] Speaker 03: as a type of trade dress for products doesn't mean that that trade dress names those products. [00:03:28] Speaker 03: I mean, obviously, a box is a type of trade dress that doesn't identify what's in the box. [00:03:36] Speaker 03: You can think of types of product design trade dress that also don't identify the category of goods. [00:03:43] Speaker 03: Like white on golf balls. [00:03:45] Speaker 03: Lots of golf balls are white. [00:03:47] Speaker 03: But white doesn't identify golf balls. [00:03:49] Speaker 03: And there are other colors of golf balls. [00:03:52] Speaker 03: And there are other things that aren't white. [00:03:55] Speaker 03: There are countless examples you can think of where the color of the product doesn't identify the category of the products. [00:04:05] Speaker 03: And so the problem is when you're talking about just identifying a category or type of trade dress, that isn't the naming function. [00:04:15] Speaker 03: Now, certainly, [00:04:16] Speaker 03: A type of trade dress, a category of trade dress, can be indisputed. [00:04:22] Speaker 03: It can fail to serve as a trademark because it's very common. [00:04:26] Speaker 03: Again, you could think of a box for shoes. [00:04:30] Speaker 03: Virtually every pair of shoes is sold in a box. [00:04:34] Speaker 02: But you say a color can be generic. [00:04:38] Speaker 02: And you don't like the Milwaukee test. [00:04:40] Speaker 02: So how would you decide if a color is generic? [00:04:45] Speaker 03: Yeah, it's an excellent question. [00:04:47] Speaker 02: Take an example of a white golf ball. [00:04:50] Speaker 02: Tell me how, if we don't use Milwaukee, how do we do it? [00:04:55] Speaker 03: Right. [00:04:56] Speaker 03: So I'm not sure that in the case of a white golf ball, it's not generic. [00:05:00] Speaker 02: Why don't you just give me an example of a color that's generic with the test that you're using? [00:05:05] Speaker 03: Sure. [00:05:06] Speaker 03: So it's when the public could use that color to refer to the goods. [00:05:10] Speaker 03: So for example, they're sitting in a restaurant and the server asks you, what do you want to drink? [00:05:14] Speaker 03: I'll take the red. [00:05:15] Speaker 03: I think universally people would say, oh, that's the red wine. [00:05:18] Speaker 03: I'm old enough to remember in New York when they used to have yellow taxi cabs. [00:05:24] Speaker 03: And if somebody asked you, how do you want to get to the airport? [00:05:27] Speaker 03: It's like, let's just take yellow or yellow cab. [00:05:29] Speaker 03: And you would see a sedan drive up. [00:05:32] Speaker 03: It's colored yellow. [00:05:34] Speaker 03: You would expect that to be a metered taxi cab, unlike an itinerant taxi cab. [00:05:39] Speaker 01: Maybe I'm misunderstanding, but didn't we entertain and reject that argument in Sunrise, or is that something different? [00:05:45] Speaker 03: No, I don't read Sunrise that way. [00:05:49] Speaker 03: The issue in Sunrise was whether or not product design trade dress could ever be generic. [00:05:57] Speaker 03: And in Sunrise, what had happened was that a trademark registrant had obtained incontestable status for its trademark, meaning it could only be challenged on certain grounds, one of which is genericness. [00:06:14] Speaker 03: the trademark registrant sought to oppose the registration of its trade dress on the grounds that trade dress could never be generic. [00:06:24] Speaker 03: And this court rightly rejected that argument to say that trade dress certainly can't be generic. [00:06:29] Speaker 03: Trade dress is not treated for genericness purposes differently than word marks. [00:06:35] Speaker 03: The statute makes no distinction between word marks and trade dress when analyzing genericness. [00:06:42] Speaker 03: So the holding in Sunrise was simply that a product design trade dress can be challenged on genericness grounds. [00:06:54] Speaker 02: But you were saying in your brief that Sunrise and Dicta actually stated the Milwaukee test. [00:07:00] Speaker 03: I don't think it did not state the Milwaukee test. [00:07:04] Speaker 03: I think what Sunrise says in its Dicta. [00:07:07] Speaker 03: It was clutch, right? [00:07:09] Speaker 03: Well, you could stretch it that far. [00:07:11] Speaker 03: That's what I thought. [00:07:12] Speaker 03: I think that would be it. [00:07:13] Speaker 02: If you go back to look at Judge Rich's opinion in Ginn, the old Ginn case, which is setting the Milwaukee test, if you will, for word marks, right? [00:07:26] Speaker 02: I mean, if the summarize case had cited Ginn at the end of that verdict, you would have had us already having established the test. [00:07:36] Speaker 03: Yeah, I'm not sure. [00:07:37] Speaker 03: I think that actually [00:07:38] Speaker 03: is an issue in this case. [00:07:41] Speaker 03: And I'm not sure that I would go that far, because I think Ginn actually states the test that the Supreme Court tests, which the Supreme Court's test, which is, does the word mark name or refer to the category of goods? [00:07:57] Speaker 03: I think in summarize, [00:07:59] Speaker 03: And in particular, the way it's interpreted by the trademark office with the Milwaukee test, and in this case, goes too far. [00:08:07] Speaker 03: It goes so far as to say that if trade dress cannot serve as a source indicator, it is generic. [00:08:16] Speaker 03: In other words, if any mark that has the potential to but fails to serve as an indicator of source is generic. [00:08:26] Speaker 03: And that reading goes too far. [00:08:28] Speaker 02: Your preference would be to eliminate the genus creation step in Milwaukee, right? [00:08:33] Speaker 02: And simply ask the question, does the public associate this color with this product? [00:08:40] Speaker 03: Or does the product, does this color identify or refer to the product? [00:08:48] Speaker 03: Does this color identify, refer to, or name? [00:08:52] Speaker 02: Well, in the red line example, no, red doesn't necessarily [00:08:57] Speaker 02: relate to wine. [00:08:59] Speaker 02: Red's also the color of the Nats baseball team and lots of other things. [00:09:04] Speaker 03: Of course, and that is the distinction because I think in the case of red wine, the public does associate red. [00:09:11] Speaker 02: But I thought that was your test. [00:09:14] Speaker 02: You were asking whether the public associates this particular color with this particular product. [00:09:20] Speaker 03: It's not so much an association as an identification. [00:09:23] Speaker 03: Is this color, does this color identify this product? [00:09:28] Speaker 03: And here, you know, chloroprene, the product at issue. [00:09:32] Speaker 02: Well, what are you dealing with? [00:09:33] Speaker 02: Red identifies lots of products. [00:09:35] Speaker 03: It does, but certainly it can be generic. [00:09:39] Speaker 03: We are not disputing that. [00:09:41] Speaker 00: I thought your example of red was meant to indicate here's an example of a color that is generic. [00:09:46] Speaker 00: Yes. [00:09:47] Speaker 00: That's what you're saying. [00:09:48] Speaker 00: Even as used with wine, it's not a source identifier of any particular manufacturer of wine. [00:09:53] Speaker 00: Precisely. [00:09:54] Speaker 03: That's your example. [00:09:56] Speaker 03: Not only is it not a source identifier, it also identifies the product at issue. [00:10:03] Speaker 03: And that's a stark distinction from this case, because remember, the product of issue here is chloroprene medical examination gloves. [00:10:11] Speaker 03: And we all agree, chloroprene is colorless. [00:10:16] Speaker 03: This product has no inherent color. [00:10:18] Speaker 03: The color is a result of it being added in the manufacturing process for the purpose of identifying the source. [00:10:27] Speaker 03: So I see I'm in the yellow. [00:10:39] Speaker 04: Good morning, and may it please the court. [00:10:43] Speaker 04: The test that the board applied is the appropriate test here. [00:10:49] Speaker 04: I hear counsel on the other side saying that it needs to show what identifies the product at issue. [00:10:56] Speaker 04: As Judge Clevenger, you said, does the public associate the color with the product? [00:11:00] Speaker 04: That's the test that this court put forward in Sunrise as the guidance to the board. [00:11:06] Speaker 04: where it talked about when it was sending the case back to the board for the nautical rope jewelry. [00:11:12] Speaker 04: It said, in this case, the consumer could associate the registered metallic nautical rope design with the genus of goods. [00:11:19] Speaker 04: There was clocks, watches, and jewelry which feature a metallic nautical rope design. [00:11:24] Speaker 04: We're not dealing with something that you speak or that sounds when you're talking about trade dress or color. [00:11:31] Speaker 04: It's something that's applied to the product here. [00:11:35] Speaker 04: trying to fit to the gin standard, it doesn't refer to in the sense that consumers are going to speak it. [00:11:42] Speaker 04: But they understand it as a type of product. [00:11:46] Speaker 04: So even for counsel's test, the evidence here meets the standard. [00:11:50] Speaker 04: And what the board said about this dark color green meets the standard. [00:11:54] Speaker 04: It is so commonly out there from various sources to consumers that it's indicating a category. [00:12:01] Speaker 04: green, dark green chloroprene medical examination gloves. [00:12:05] Speaker 04: It doesn't matter that chloroprene is colorless. [00:12:08] Speaker 04: Consumers seeking to purchase these goods are exposed to dozens of dark green chloroprene medical examination gloves, many of which include in the description of the glove the word green. [00:12:21] Speaker 04: So this example of red wine, that's the word red. [00:12:24] Speaker 04: I don't think anybody disputes that green, based on this record, [00:12:28] Speaker 04: is generic for chloroquine medical examination gloves. [00:12:31] Speaker 04: This dark green that they're seeking to register is applied to the surface. [00:12:36] Speaker 04: It's the pictorial representation of that color. [00:12:39] Speaker 04: And the record here shows it's not capable of indicating source in one entity because it's used by dozens. [00:12:48] Speaker 04: And that standard of common use [00:12:50] Speaker 04: is what's in the case law. [00:12:51] Speaker 04: It's also in the case law that the court cited to in Sunrise. [00:12:56] Speaker 04: When we think about terms falling into the public domain, it's because they're commonly used. [00:13:01] Speaker 04: So the board's focus on common use in the industry and whether it's viewed by consumers as associated with the genus of goods is entirely correct. [00:13:11] Speaker 04: It's consistent with the case law. [00:13:12] Speaker 04: It's consistent with the statute. [00:13:14] Speaker 01: And there was a record here of evidence establishing as well. [00:13:16] Speaker 04: Yes, there's a record of lots of evidence establishing it. [00:13:20] Speaker 04: both including the examples that Medisate says are theirs in the record. [00:13:25] Speaker 04: When you look at these examples, and they're reproduced in the board's opinion, at A16 to 29 are the 15 that Medisate says are theirs, and at A30 to 38, and in our brief at pages four to five, we list the actual APPX sites for them. [00:13:41] Speaker 04: Every single one of them, or I should say none of them, indicates [00:13:46] Speaker 04: a particular manufacturer or source, none of them mentioned unsafe. [00:13:51] Speaker 02: Can you give us an example of a color that would indicate source? [00:13:55] Speaker 04: Yes, pink for insulation. [00:13:57] Speaker 04: This court's decision in Owens Corning. [00:14:00] Speaker 04: It wasn't commonly used in the industry. [00:14:02] Speaker 04: They put it out there as a means for consumers to look for the pink color in the insulation and distinguish it from insulation that's offered by others. [00:14:12] Speaker 04: That's not this record here. [00:14:14] Speaker 04: This record here is that dark green is put on these gloves. [00:14:17] Speaker 04: And there's also evidence in the record that color in the medical glove industry serves... And you go about proving that in a case with evidence? [00:14:26] Speaker 02: Is that what you do? [00:14:28] Speaker 02: Pink for insulation, you say to people? [00:14:30] Speaker 02: Did you ever think insulation should be pink? [00:14:35] Speaker 04: That's one way to do it. [00:14:36] Speaker 04: This kind of maybe gets to, is it distinctive? [00:14:39] Speaker 04: But we're talking about consumer perception here. [00:14:42] Speaker 04: And much like the Supreme Court has applied the categories of distinctiveness, the spectrum of distinctiveness, to trade dress. [00:14:52] Speaker 04: So I don't hear today counsel disputing that trade dress, including color, can be generic. [00:15:00] Speaker 04: We know that color can never be inherently distinctive. [00:15:03] Speaker 04: And so sometimes it's capable. [00:15:05] Speaker 04: It can be. [00:15:06] Speaker 04: It can be serving these source indicating functions. [00:15:09] Speaker 04: We recognize that. [00:15:10] Speaker 02: My question is why don't you need the Milwaukee test as a tool for asking whether or not a color is or is not generic. [00:15:23] Speaker 02: And the notion of creating a genus, because there's an argument here about whether the genus was correctly selected by excluding the distributors. [00:15:32] Speaker 02: I'm just asking, do you really need that test? [00:15:35] Speaker 02: Can a law suffice with a cleaner test, which would simply ask the question, is it capable of indicating source? [00:15:43] Speaker 04: That's the fundamental question that this test is designed to ask. [00:15:48] Speaker 02: The reason why I'm asking it is because there's some discussion, apparently, about whether or not, since at least our earlier case law on this issue, the Supreme Court has sort of weighed in on generic nascent products and whatnot. [00:16:05] Speaker 02: And whether, as I understood, the background noise, at least in the research on the other side, is whether Milwaukee is really nudging up against Supreme Court law, or whether it's really consistent with, and that we have potentially an issue of first impression here. [00:16:22] Speaker 02: So for fashioning a test, do we need to follow Milwaukee? [00:16:29] Speaker 04: You don't need to follow it, but I think what the board was doing was following your test from Jen. [00:16:35] Speaker 04: That says, does it refer to the goods? [00:16:39] Speaker 04: But because we're not dealing with something that's spoken, and trade dress is the surface of the goods. [00:16:46] Speaker 04: It's not necessarily the goods themselves. [00:16:49] Speaker 04: If it's a common trade dress for those goods, that's the right question to ask. [00:16:54] Speaker 04: Is it perceived as? [00:16:58] Speaker 04: a category of trade dress for those goods, which effectively makes it a type of product just like a word mark. [00:17:06] Speaker 04: So you could really kind of view this as is it so associated with the genus as opposed to a particular producer that it's incapable, it's generic. [00:17:16] Speaker 04: Because genericness is one way that something is incapable and failing to function as a mark fundamentally. [00:17:25] Speaker 04: I think the struggle has been, well, how do you look at it to figure out if something's incapable of designating source? [00:17:32] Speaker 04: And so the court came up with the GIN test for word marks, and the board was simply trying to apply that. [00:17:38] Speaker 04: But they said what the second factor means, where they articulated the type of trade dress, they're asking whether the color and issue is so common within the genus that consumers would primarily associate it with the genus. [00:17:49] Speaker 04: That's an A5. [00:17:51] Speaker 04: So they say that. [00:17:52] Speaker 04: And they also started out saying, we consider whether the proposed trade dress mark is so common in the industry that it cannot be said to identify a particular source. [00:18:00] Speaker 04: That's at A4. [00:18:01] Speaker 04: That's consistent with all the other cases that have looked at trade dress as whether it's generic. [00:18:09] Speaker 04: Even McCarthy's notes that in the context of trade dress, the word generic is basically a synonym for common or ordinary. [00:18:17] Speaker 00: So are you asking us to adopt the Milwaukee test or not? [00:18:21] Speaker 04: I don't think you have to adopt it, because I don't think it's wrong. [00:18:26] Speaker 04: I think the board did the right thing. [00:18:28] Speaker 04: But it's getting at the right inquiry. [00:18:31] Speaker 04: And no matter how it's articulated, [00:18:36] Speaker 04: what we care about is how's the consumer perceiving this? [00:18:39] Speaker 00: Is it a type of product? [00:18:40] Speaker 00: What about the argument that the statute itself uses the term generic name for the goods, emphasis on name, and the argument seems to be from your friend on the other side that the Milwaukee test or even the broader sort of analyses that you're now suggesting today [00:18:58] Speaker 00: are not sufficiently tied to the statutory text because they don't have anything to do with whether the color is a generic name for the goods. [00:19:07] Speaker 00: What's your response? [00:19:09] Speaker 04: The court addressed this in sunrise. [00:19:11] Speaker 00: But not in the context of color. [00:19:14] Speaker 04: But in the context of color as a type of trade dress. [00:19:18] Speaker 04: So if you look at a metallic rope design, you're not going to say clock, right? [00:19:27] Speaker 04: The point is, what is this designation? [00:19:31] Speaker 04: Is it meeting the statutory definition of a trademark? [00:19:36] Speaker 04: Because the generic mis-refusal is under sections 1, 2, and 45. [00:19:39] Speaker 04: 45 sets out the definition of a trademark. [00:19:42] Speaker 04: And the Supreme Court has confirmed for us in Jack Daniels that that's [00:19:46] Speaker 04: Threshold inquiry, you have to be capable of meeting that definition of distinguishing goods from one another, identifying source, in order to be a trademark, and then in order to be registered. [00:19:59] Speaker 04: And what we know from this record, and we know from how the board was looking at this, they were trying to figure out, are consumers going to perceive this as indicating source, as a means to distinguish [00:20:11] Speaker 04: MetaSafe's green gloves from the green gloves of others, or are they going to view it as a type of glove, the dark green glove I want to buy? [00:20:18] Speaker 04: And it's the latter here. [00:20:19] Speaker 04: And that's why it's generic. [00:20:21] Speaker 04: It's kind of glove. [00:20:23] Speaker 00: So I take it, though, you would agree with MetaSafe that the test, what the test should be for whether a color is the generic name for a category of goods or services, that is a question of first impression for our court. [00:20:38] Speaker 04: I don't believe it is, because the court here has addressed the generic mean has to be read broadly to include all the types of marks. [00:20:47] Speaker 00: And sunrise is what you're saying. [00:20:48] Speaker 04: Pardon me? [00:20:49] Speaker 00: Sunrise is what makes it not a question of first impression. [00:20:52] Speaker 04: I don't think it's a question of first impression. [00:20:55] Speaker 04: And again, if you want to look at color, because normally you do have words that go with color, if the consumer would speak the color, [00:21:02] Speaker 04: that's on the goods to refer to them, then the color itself is referring to those goods. [00:21:07] Speaker 04: That's one way to look at it, that it kind of fits in this refer to and generic name, because you're calling for it by the color. [00:21:15] Speaker 00: This may not be important, but there's some back and forth about the survey and whether the specimen that triggered the survey, whether there's some factual error about that. [00:21:26] Speaker 00: Can you help me understand what the alleged error of the board is, if you understand that argument, and does it make a difference? [00:21:34] Speaker 04: It doesn't make a difference, Your Honor. [00:21:35] Speaker 04: I think the argument is that the board, in its decision, reproduced a different stimulus than what they had [00:21:44] Speaker 04: actually used for the SurveyMonkey survey and given all of the other flaws, that doesn't matter what they saw. [00:21:56] Speaker 00: There's numerous flaws with the survey evidence. [00:21:59] Speaker 04: correct that this, I mean, it was harmless if the board identified the wrong stimulus because this wasn't conducted according to scientific methods. [00:22:09] Speaker 04: The attorney was not an expert. [00:22:11] Speaker 04: It went to six of their own customers. [00:22:14] Speaker 04: It identified MetaSafe in the questions. [00:22:18] Speaker 04: And if you do want to look at the results, even one of the three that responded said it wasn't distinctive for MetaSafe. [00:22:24] Speaker 04: So the stimulus is not a reason why [00:22:28] Speaker 04: it's not going to change the outcome on whether the survey was at all appropriate. [00:22:33] Speaker 04: If the court has no further questions. [00:22:36] Speaker 04: Thank you. [00:22:45] Speaker 03: Thank you, Your Honor. [00:22:46] Speaker 03: So we hear a lot about [00:22:50] Speaker 03: consumer perception. [00:22:52] Speaker 03: And that's the one piece of evidence that's missing from the Trademark Office's conclusions on genericness. [00:23:00] Speaker 03: There is no testimony from any consumer anywhere that says they regard this color green as the name of, as referring to, or identifying the category of goods known as chloroprene medical examination gloves. [00:23:16] Speaker 03: There is simply no evidence on that point. [00:23:18] Speaker 03: And it's the Trademark Office [00:23:20] Speaker 03: that bears the burden of showing that the consumers think that way. [00:23:26] Speaker 03: At the heart of this case is an issue that's very important. [00:23:31] Speaker 03: And that is the difference, the distinction, between concepts of genericness and distinctness. [00:23:38] Speaker 03: Genericness is a very specific form of descriptiveness that renders a trademark unregisterable. [00:23:46] Speaker 03: And there's also distinctness. [00:23:48] Speaker 03: Distinctness basically says this mark [00:23:50] Speaker 03: is incapable of serving as a trademark. [00:23:53] Speaker 03: One category of lacking distinctiveness is genericness. [00:23:58] Speaker 03: So a vast universe of things that fail to serve as trademarks, be they merely descriptive, be they functional, be they generic, they all fall within this large circle. [00:24:10] Speaker 03: Within that large circle is genericness. [00:24:13] Speaker 03: And that's very specific. [00:24:14] Speaker 03: And it's important to distinguish, because genericness has specific statutory aspects. [00:24:20] Speaker 03: Mainly, a trademark that is more than five years old can be canceled on grounds of genericness. [00:24:27] Speaker 03: It cannot be canceled on any of those other grounds of distinctness. [00:24:32] Speaker 03: So if we're to say that genericness and distinctness are the same, we're overriding the statutory command that only trademarks that are generic can be canceled after five years. [00:24:45] Speaker 03: And it's our position that the way that the trademark office interpreted genericness [00:24:50] Speaker 03: basically makes it the same. [00:24:52] Speaker 03: I mean, if you look at the evidence, the evidence on distinctness is the same as the evidence on geneeriness. [00:24:58] Speaker 03: And those two requirements need to be separated. [00:25:04] Speaker 03: The issue at the end of the day is we are advocating for the standard set forth in GIMP. [00:25:12] Speaker 03: We're advocating for a standard that simply asks, does the consuming public regard this color as the name [00:25:20] Speaker 03: as referring to or as identifying the goods at issue. [00:25:24] Speaker 03: And our position is that the test articulated in Milwaukee Tools, a test invented by the Trademark Office, is not consistent with 15 USC 1064. [00:25:36] Speaker 03: It is not consistent with the way the phrase generic name is used in the statute. [00:25:42] Speaker 03: And it's not consistent with the way that phrase has been consistently interpreted by the Supreme Court. [00:25:48] Speaker 03: which has expanded generic name and defined it as something that refers to the product's initial. [00:25:56] Speaker 02: Are you saying Milwaukee test is bad for a name mark? [00:26:02] Speaker 02: Yes, yes. [00:26:03] Speaker 02: It's just the wrong period. [00:26:04] Speaker 03: Right. [00:26:05] Speaker 02: Because essentially, essentially if you're applying the Milwaukee test, you're basically asking... Because my understanding was that the Milwaukee test when it was composed wasn't for, it wasn't a color change, it was a word change. [00:26:16] Speaker 03: For Milwaukee, I actually think that was a color case. [00:26:20] Speaker 03: I think they were looking at color in that case. [00:26:23] Speaker 03: Gin is definitely a word case. [00:26:26] Speaker 03: And let's be honest, that's where the trick is. [00:26:31] Speaker 03: How do you reconcile a color with tests that were traditionally applied to words? [00:26:36] Speaker 03: And I think the place to look is just as bad. [00:26:39] Speaker 02: You don't treat gin as using a Milwaukee test. [00:26:42] Speaker 03: I do not, yeah. [00:26:44] Speaker 03: I think Milwaukee strayed from gin. [00:26:46] Speaker 03: It's strayed from the statute, and it's strayed from the Supreme Court precedent. [00:26:50] Speaker 03: And it's just time to just go back and just say, look, the statute says what it says. [00:26:55] Speaker 03: It says generic name. [00:26:56] Speaker 02: But Milwaukee cited Ginn as source. [00:27:00] Speaker 02: Right? [00:27:00] Speaker 03: Yeah, I can't recall verbatim the citation. [00:27:04] Speaker 02: That's right. [00:27:04] Speaker 02: At the end of the statement of their test, they said, see Ginn. [00:27:07] Speaker 03: Right. [00:27:07] Speaker 03: But I don't think Ginn says simply identifying something as a category of trade dress [00:27:17] Speaker 03: is consistent with GIN, which asks, does the mark, be it trade dress or a word, refer to the product at issue? [00:27:26] Speaker 03: I think that's where it just strayed. [00:27:28] Speaker 03: And it's just time to just go back to what the statute says and apply the words plainly. [00:27:34] Speaker 03: Thank you. [00:27:35] Speaker 03: So I'm out of time. [00:27:36] Speaker 01: Thanks so much.