[00:00:01] Speaker 00:
The argument is 23-1193, Tribal 2 versus Vidal.

[00:00:07] Speaker 00:
Mr. Klein, split your time, 8 and 7.

[00:00:12] Speaker 01:
Whatever works for you, Your Honor.

[00:00:15] Speaker 01:
As long as I have some time reserved.

[00:00:20] Speaker 01:
All right.

[00:00:21] Speaker 01:
Good morning, Your Honors.

[00:00:23] Speaker 01:
If it may please the court, in reviewing the briefing in preparation for today, it occurred to me that while our briefs identified multiple errors that the board stumbled through as it was going through its analysis, there's actually one particular point which

[00:00:46] Speaker 01:
permeates the analysis from start to finish and provides a useful through line and framework for analyzing most, if not all, of the issues.

[00:00:58] Speaker 01:
And that is the board's decision to acknowledge, and it wasn't even an express decision, but to acknowledge that both the application and the registrations did not claim color.

[00:01:13] Speaker 01:
They claimed the marks.

[00:01:15] Speaker 01:
in the description without a claim of color.

[00:01:18] Speaker 01:
But in the board's analysis, the board seemed to approach each of these issues as if it was a black and white claim in each of the application and the registrations, and that it was limited to a black and white depiction.

[00:01:40] Speaker 01:
And I think that

[00:01:43] Speaker 01:
in many senses influences and at points moots some of the arguments that we've had with the director about what the board can and cannot determine and consider in its analysis.

[00:01:59] Speaker 03:
Can you pick an explicit example of a board error that likely turned on its thinking that this was black and white as opposed to color?

[00:02:10] Speaker 03:
I think that's where the rubber hits the road on your general theory.

[00:02:15] Speaker 01:
Sure.

[00:02:16] Speaker 01:
I think if you look at the board's determination about applicants' eritages' mark, they said, well, you can discern letter T's if you look for them, but we don't think the letter T's are dominant.

[00:02:36] Speaker 01:
And I think if

[00:02:40] Speaker 01:
the ability to depict the mark in different colors, including the different elements in different colors, which would allow for you to emphasize the letter T's and de-emphasize the two separate horizontal lines.

[00:02:55] Speaker 00:
I guess, did you present this argument to the board or in your briefs?

[00:02:59] Speaker 01:
Yes, we talked about how the board considered overlooked, I'm sorry, the color

[00:03:09] Speaker 02:
Some examples at page 22, your blue brief.

[00:03:12] Speaker 02:
But did you make that argument and show that type of example to the board?

[00:03:18] Speaker 01:
I did not know whether or not the... I know the examples weren't presented.

[00:03:25] Speaker 01:
They're illustrative.

[00:03:26] Speaker 01:
Were or were not?

[00:03:26] Speaker 01:
Were not.

[00:03:28] Speaker 01:
Those are illustrative examples.

[00:03:29] Speaker 02:
Those are not in the... So I think if I understand the argument correctly, you're asking us to decide based on examples like the ones at page 22.

[00:03:39] Speaker 02:
that one could use this mark to really emphasize through different color and shading the T's in tribe of two and make it look more clearly like two capital T's, one inverted, than perhaps seen as the Roman numeral two.

[00:03:57] Speaker 02:
But if I'm understanding you correctly, that is not at all an argument that you ever made to the board.

[00:04:02] Speaker 02:
You didn't say, here's what we want you to analyze, these types of color arrangements, for example.

[00:04:08] Speaker 01:
Well, I believe before the board, it was pointed out that the marks do not claim color, as the board noted.

[00:04:16] Speaker 01:
And it's just as a mark which is in standard characters is construed without respect to stylization, font, or color.

[00:04:26] Speaker 01:
that one has to take into account all the different variations.

[00:04:31] Speaker 02:
But are you saying the law required the board to think through in its own mind all the different myriad color schemes that would be possible and how that would affect

[00:04:43] Speaker 01:
consumers and what whether they might see an abstract design or a Roman numeral word or two teeth I think it has to take that into account just as when again comparing standard character marks it has to you know take into account the fact that they can be shown in different stylizations and when you're for example comparing like in in Viterra the case we say in our breeze when you're comparing a

[00:05:13] Speaker 01:
a stylized mark to a standard character mark, it's proper to consider whether or not one letter gets larger, more emphasis than the rest of the letters.

[00:05:24] Speaker 01:
I think it's part and parcel of what can be considered and what can't.

[00:05:29] Speaker 00:
Well, I mean, you refer to not just colors, but contrasting colors and shading, or shadings.

[00:05:36] Speaker 00:
So those are innumerable.

[00:05:39] Speaker 00:
So what was the board supposed to do, or did you make an affirmative argument that, look, this looks different on this particular shading, or on this particular color, and that the board

[00:05:54] Speaker 00:
The board didn't address it, right?

[00:05:57] Speaker 00:
Did you make that argument that this looks different, the result might be different if you consider various shadings and colors?

[00:06:04] Speaker 00:
And did you give them any examples or put in any evidence with regard to that?

[00:06:11] Speaker 01:
I think the answer is no.

[00:06:13] Speaker 01:
There was no expressed argument that the board should specifically consider different shadings.

[00:06:21] Speaker 00:
Okay, so that's a problem here for us on appeal to find error or problems with the board's analysis when the argument was not made to it, right?

[00:06:32] Speaker 01:
Well, the board did identify the fact that these are all applications and registrations that lack a color claim, and so it's... I think the board has to take that into account in making its decision.

[00:06:48] Speaker 01:
I don't think it can disregard

[00:06:52] Speaker 01:
the different colors.

[00:06:53] Speaker 00:
And how was it supposed to address the innumerable types of variations of colors and shadings?

[00:07:02] Speaker 00:
I mean, go through all of them, go through none of them, and make it a conclusory statement?

[00:07:08] Speaker 00:
I don't know how the board could have addressed in more detail an argument which I think you're saying you really didn't make to it, and why it's lacking.

[00:07:19] Speaker 01:
Yeah, I think the

[00:07:21] Speaker 01:
The board could have acknowledged that there are ways that the marks similarities could be emphasized.

[00:07:35] Speaker 03:
As I understand it, you're saying that where it is indicated that the application or the mark in question aren't color-limited, then there is a corresponding obligation on the board to open the question

[00:07:51] Speaker 03:
and then queried to itself whether coloring would matter as to prominence of one letter or the prominence of the gap, which led to the conclusion that erotage was essentially an abstract design.

[00:08:08] Speaker 03:
I think you're telling us that you'd like us to write an opinion that says when this color issue is involved, the board, even if the present isn't presented to them by the parties, the board has an obligation to delve into that because it could be important.

[00:08:24] Speaker 02:
Your Honor, I think that's fair.

[00:08:27] Speaker 02:
Can you cite any authority, though, that exists that puts that obligation on the board and allows us to say it's reversible error if the board doesn't, sui sponte, undertake an analysis of all the innumerable ways you might have made the t's more prominent?

[00:08:41] Speaker 01:
I don't think it requires an analysis of all the different ways.

[00:08:47] Speaker 01:
I think, you know, certainly,

[00:08:55] Speaker 01:
The Vatera case and its discussion of Citigroup about how the board can't limit the different variations which are permissible based on reasonable manners of display, for example.

[00:09:13] Speaker 01:
The board has to consider all the different permissible variations in making its decisions.

[00:09:22] Speaker 00:
it has to consider, let me see if I understand what your argument is, it has to consider variations of shades and colors, which could be innumerable, and it has to consider your mark

[00:09:35] Speaker 00:
having those and the other mark not or that both of them have the same?

[00:09:41] Speaker 00:
I mean, do we have to go into every variation where one has the shading and color and the other doesn't or has a different shading and color?

[00:09:49] Speaker 00:
I mean, it seems like this is an innumerable

[00:09:53] Speaker 00:
analysis.

[00:09:55] Speaker 00:
I think if you make, if there's a case to be made or one thinks there's a case to be made with regard to differentiating certain colors or shadings, then I think if you make that case, the board is in a position to address it.

[00:10:10] Speaker 00:
But I'm not sure if I was sitting at the board what on earth or what I could do with the innumerable different examples with no argument made as to what the distinctions are.

[00:10:23] Speaker 01:
Is that fair enough?

[00:10:25] Speaker 01:
Oh, I agree.

[00:10:26] Speaker 01:
I don't think the board has to go through innumerable variations.

[00:10:30] Speaker 01:
I think it just considers whether or not the same colors or shadings and emphasis can be found in both marks, creating similarities, emphasizing the similarities between the two, de-emphasizing the differences.

[00:10:48] Speaker 00:
Well, you want to make a few other arguments in your remaining time, because you're already in rebuttal.

[00:10:53] Speaker 01:
You know, I'm happy to reserve time and respond to any questions you may have.

[00:10:58] Speaker 00:
Thank you.

[00:11:09] Speaker 00:
Well, you were able to hear the argument, the preceding argument, correct?

[00:11:13] Speaker 00:
Yes.

[00:11:13] Speaker 00:
So please proceed.

[00:11:15] Speaker 04:
Sure.

[00:11:15] Speaker 04:
Good morning, Your Honors.

[00:11:16] Speaker 04:
Mike Chahone on behalf of the USPTO director.

[00:11:21] Speaker ?:
Quickly, on this issue of

[00:11:26] Speaker ?:
how to compare marks with no color claim, there's no indication that it didn't.

[00:11:32] Speaker 04:
It didn't need to say that it did, particularly because, as Your Honors recognized, it doesn't seem the tribe of two presented the argument this way to the board.

[00:11:43] Speaker 04:
Beyond that, it doesn't make a difference.

[00:11:46] Speaker ?:
Even if the applicant's mark is colored, if Eritrean's mark is colored in some particular way that

[00:11:59] Speaker ?:
rectangular geometric design.

[00:12:01] Speaker 04:
For all the reasons that the board gave, which were based on substantial evidence, namely the way the mark looks.

[00:12:07] Speaker 04:
On page 16 of its opinion, it said it found the commercial impression of the applicant's mark based on quote, the inversion of the letters P, the double horizontal lines, and the use of negative space to create a rectangle.

[00:12:23] Speaker 03:
Are you saying that color could never make a difference in terms of the assessment of whether it was a design?

[00:12:34] Speaker 04:
There's just as many color schemes that maybe could make the tees less discernible and make a really bright color.

[00:12:47] Speaker 03:
for the T's for the things that form the edges around the empty space, the eye would be more attracted to the bright color than it would be to the empty space.

[00:12:58] Speaker 03:
Right?

[00:13:00] Speaker 03:
I raised the question because I understood your argument to be that it wouldn't make any difference to whether or not this was an abstract design regardless of color and I just was questioning that in my mind.

[00:13:14] Speaker 04:
Well, the tribe of two, this is in opposition.

[00:13:17] Speaker ?:
The burden goes on tribe of two to establish a likelihood of confusion.

[00:13:22] Speaker 04:
It put no evidence into the record that any particular color scheme would alter consumer perception.

[00:13:28] Speaker 03:
I just would have thought your argument with respect to the color would be that color is irrelevant in this case because the applicant didn't make any issue of color.

[00:13:38] Speaker 03:
And so we didn't need to hypothesize whether color could matter or could not matter.

[00:13:44] Speaker 03:
When you ventured into the merits to say that you thought color would never make any difference, I questioned you.

[00:13:52] Speaker 03:
Now you've agreed that color could make a difference in terms of deciding whether or not her taj was an abstract design.

[00:14:03] Speaker 04:
It doesn't take away from what the court said based on the way that Mark looks, which was the evidence before.

[00:14:11] Speaker 00:
Well, I understood your response to be, so maybe I misunderstood, that we don't know whether color makes a res- if there's an argument to be made that color makes a difference, then the argument has to be made so one can address whatever conceivable argument there might be.

[00:14:29] Speaker 04:
Right, right, exactly.

[00:14:30] Speaker 04:
That was my point that the tribe of two to the extent it wants to pursue this argument didn't make the record it needed to.

[00:14:37] Speaker 02:
But why isn't it, as was suggested by your friend on the other side, that the board has a suespante obligation if faced with both an application that's not limited in color and an opposition mark that already exists that's not limited in color, why is it not the board's obligation

[00:14:58] Speaker 02:
to think through whether color might make a difference.

[00:15:02] Speaker 02:
And it does seem like color could make a difference.

[00:15:05] Speaker 02:
The examples given in the blue brief at 22, to me at least, no longer look like one might perceive them as the Roman numeral two as opposed to two T's.

[00:15:17] Speaker 02:
So why doesn't the board have that obligation that is being suggested at least in argument today?

[00:15:31] Speaker 04:
color claim, the registrations have no color claim.

[00:15:34] Speaker 04:
There's no indication that the board didn't consider this, and it perfectly, Your Honor, it didn't need to, because Tribal 2 didn't raise it.

[00:15:42] Speaker 03:
I don't think you're answering Judd Stark's question.

[00:15:46] Speaker 03:
Judd Stark asked you whether the board, what's your response to your adversary's argument that the board has a Suicide Obligation to delve into this matter?

[00:15:58] Speaker 04:
My response is that

[00:16:00] Speaker 04:
To the extent it does, the board, no, the board, there's no indication that the board didn't do that.

[00:16:06] Speaker 03:
Well, what do you mean to the extent it does?

[00:16:07] Speaker 03:
Does the board have an obligation, so responding?

[00:16:11] Speaker 04:
Yes, yes, Your Honor.

[00:16:12] Speaker 04:
It has an obligation when there's no color claim to consider that.

[00:16:15] Speaker 04:
There's no indication that it didn't do that here because, and it didn't mean to say that it did because Tribe of Two didn't raise it.

[00:16:22] Speaker 00:
Well, is any part of the board's analysis, which I think is largely page 15 through 17, did any of that analysis deal with color?

[00:16:33] Speaker 00:
I mean, did it reference the color black of these tees, or did it rely on anything relative to color?

[00:16:42] Speaker 00:
I mean, I saw it relying on shapes and emplacement, et cetera.

[00:16:48] Speaker 00:
It didn't look like there

[00:16:50] Speaker 00:
there's anything in what they said that was predicated on the color or a particular color?

[00:16:56] Speaker 00:
Is that fair?

[00:16:58] Speaker 04:
Yeah, that's right, Your Honor, and I think that's the result of the way Tribal 2 presented the argument below.

[00:17:07] Speaker 00:
Well, at least the geometric, where their impression of a rectangular geometric design

[00:17:15] Speaker 00:
didn't suggest to me that that would change or be different if they were a color thing.

[00:17:22] Speaker 00:
With respect to the two tribes, I guess I don't see anything they said.

[00:17:30] Speaker 00:
They talked about the Roman numeral II and the letters T and the, you know, I guess I didn't see anything that suggested that

[00:17:42] Speaker 00:
there's a color emphasis on any of this.

[00:17:47] Speaker 00:
That's right, Your Honor.

[00:17:48] Speaker 00:
No, you do more of these cases than I do, because we don't get very many.

[00:17:52] Speaker 00:
I mean, when you have an issue with regard to marks, I haven't seen one that deals with this variation of colors.

[00:18:02] Speaker 00:
Do you know of any cases that have gone that route?

[00:18:07] Speaker 04:
Not right here off the top of my head, Your Honor.

[00:18:11] Speaker ?:
I don't believe Tribe of Two cited any in its briefing.

[00:18:15] Speaker ?:
It mentions the Viterra case, but we would have to see if that took up that issue.

[00:18:23] Speaker ?:
And quite frankly, Your Honor, I think Tribe of Two is turning to this color argument because this is a straightforward likelihood of confusion case.

[00:18:32] Speaker ?:
The boards to similarity finding was based on substantial evidence.

[00:18:43] Speaker 04:
differences it saw and it was proper under this court's precedent.

[00:18:48] Speaker 04:
We walked through the substantial evidence supporting the dissimilarity finding was the marks themselves, the way they appear in the application and in the registrations.

[00:18:58] Speaker 04:
We walked through where, when the board made its finding about the commercial impression of the applicant's small hook.

[00:19:06] Speaker 04:
It was referencing the elements in their arrangement.

[00:19:09] Speaker 04:
It did so as well.

[00:19:13] Speaker 04:
about the possible commercial impressions of Tribe of Toosmark.

[00:19:16] Speaker 04:
On page 15, we see at the beginning of the bottom paragraph that the court mentions the

[00:19:31] Speaker 03:
And can you cite another case, this case strikes me as unusual in at least one respect in which that all of the relevant DuPont factors except for similarity of the marks pointed to a likelihood of confusion, right?

[00:19:47] Speaker 03:
Yes.

[00:19:47] Speaker 03:
So can you think of another case similar to this one in which all of the DuPont factors point to a likelihood of confusion except for similarity and yet the similarity of the marks overwhelmed the other factors?

[00:20:02] Speaker 04:
Yes, yeah, we cite several of them on page 18 of our brief year of honor.

[00:20:07] Speaker ?:
The Croptrip case, the Oakville Hills Seller case, the Odom Tennessee Pride case, the Champagne case, and the Kellogg case were all cases where the single factor of dissimilarity outweighed all the other DuPont factors.

[00:20:24] Speaker ?:
And this court found nothing improper in any of those cases.

[00:20:30] Speaker ?:
The CripTrip case is probably the most recent example and there the court looked at how the board balanced the factors and asked itself whether there was any error in the

[00:20:54] Speaker 02:
Mr. Chauhan, it looks like, I could be mistaken, but it looks like the board repeatedly produced incorrectly the tribe of two mark.

[00:21:05] Speaker 02:
That is, whether the inverted T should be on the left or on the right.

[00:21:10] Speaker 02:
And I'm pretty sure that your friend on the other side calls us out in the briefing.

[00:21:17] Speaker 02:
Do you agree that there is error in how the board reproduced the opposers' marks?

[00:21:23] Speaker 02:
And if so, why shouldn't that lead to a remand since this analysis is so focused on what the visual impression is of the mark?

[00:21:32] Speaker 02:
Wouldn't we expect the board to get the mark right when it reproduces it in its opinion?

[00:21:37] Speaker 04:
Yeah, unfortunately, Your Honor, the Court, the Board did make that mistake, but at least I'm looking at page 14 of the opinion where it sets out the marks right before it's dissimilarity findings and there they appear correctly.

[00:21:53] Speaker ?:
So I think it would be a bit of a, I don't think we can read into the other places where the mark was misrepresented as any sort of indication that the Board did

[00:22:07] Speaker 02:
But then I guess you would have to agree that, for instance, on page 11, the board got it wrong in how it reproduced it, right?

[00:22:15] Speaker 04:
Yes.

[00:22:15] Speaker 04:
Yes, yes, yes.

[00:22:17] Speaker 04:
And I think there may be a few other instances.

[00:22:24] Speaker 04:
Because of the well-supported factual finding and of the proper balancing of the dupe home factors, I try to argue that the board made certain legal errors that it failed to consider the marks in their

[00:22:54] Speaker 04:
in the arrangement of elements, tried with two argues that the board should have considered the sound and connotation of the two letters T. But at least for applicants' mark on page 16, the board says, quote,

[00:23:31] Speaker ?:
as well.

[00:23:33] Speaker ?:
That finding was based on the evidence we walked through.

[00:23:38] Speaker ?:
So the keys don't contribute to the commercial impression beyond their role in this overall design.

[00:23:45] Speaker ?:
We know from cases like ATV that when one mark has no literal element, no spoken vocalized element like this, the analysis turns on visual similarity only.

[00:23:56] Speaker 04:
So we did a full analysis here.

[00:23:59] Speaker 04:
on this notion of a side-by-side comparison, the prohibition is putting the mark side-by-side and asking if they can be distinguished based on their precise details, and the board didn't do that.

[00:24:22] Speaker 04:
and it turned to the applicant's mark on page 16, and then at the bottom of 16 over to 17, it compared those general impressions, not the

[00:24:46] Speaker 02:
It seems like the starting point here may determine the outcome and the question is whether one or both of the marks are stylized letter marks or are instead design marks.

[00:24:58] Speaker 02:
Is that initial question, is that a question of law or a question of fact?

[00:25:04] Speaker 02:
Where do you start?

[00:25:05] Speaker 02:
Do I have letter marks or do I have design marks?

[00:25:08] Speaker 02:
Is that decided as a matter of law or a matter of fact?

[00:25:13] Speaker 04:
That sounds like

[00:25:18] Speaker 04:
it can properly presume that these are design marks.

[00:25:21] Speaker 04:
When letters are presented in some way other than letters are normally presented as they appear printed on paper, for example, then the question becomes do they retain their meaning?

[00:25:33] Speaker ?:
Are they still perceived as letters?

[00:25:35] Speaker ?:
At that point we're in, if you will, design.

[00:25:45] Speaker 04:
It's in the Joint Appendix, let me find the case, I think it's 46.

[00:25:51] Speaker 04:
In its Notice of Opposition, Your Honor, if you turn to Appendix 46, paragraph six, Tribe of Two called these design marks from the get-go.

[00:26:06] Speaker 04:
They're on paragraph six.

[00:26:08] Speaker 04:
Since as early as 2012, Opposer has substantially, exclusively, and continuously used the two

[00:26:24] Speaker 04:
that board defines this as the design marks are here in Africa, collectively referred to as the TT logo.

[00:26:31] Speaker ?:
So in its decision, Your Honor, on page 15, where the board is referring to the design element and roughly, it's just answering the question that Tribalist II presented to it from the very beginning.

[00:26:46] Speaker ?:
So beyond that, Your Honor, there's disagreements that Tribalist II raises or disagreement about the

[00:26:55] Speaker 04:
So unless the court has any further questions, Your Honor, we rest on our briefs and yield our time.

[00:27:21] Speaker 01:
Thank you, Your Honors.

[00:27:23] Speaker 01:
I begin actually by pointing out that we did cite an additional case directly on point on the range of colors, and that's the in-raid data packaging corp on page 22, 453F2nd, 1300, where at 1302 the Court of Customs and Patent Appeals says,

[00:27:44] Speaker 01:
that clearly a registration envisions use of the mark not only in any form of type, but in printing in all the colors of the spectrum.

[00:27:54] Speaker 01:
It seems to be well established that a single registration award mark may cover all of its

[00:27:59] Speaker 01:
different appearances, potential is actual.

[00:28:01] Speaker 01:
Similarly, there's no reason why an affidavit should not be able to obtain a single registration of its design mark covering all the different colors in which it may appear.

[00:28:10] Speaker 01:
That is to say, not limited to a particular color.

[00:28:13] Speaker 00:
Well, can I ask you, how does that work?

[00:28:15] Speaker 00:
Let's assume that the board went through Sue Espante, all variations.

[00:28:21] Speaker 00:
they said okay, we find one that has two letters that in the two of tribes one hot pink and one yellow and We we think that meets the test again versus another mark.

[00:28:35] Speaker 00:
That's So is that what your registration is then?

[00:28:40] Speaker 01:
condensed to How does that work?

[00:28:43] Speaker 01:
No, I think it works because when and and

[00:28:47] Speaker 01:
It also plays into the dominance determination.

[00:28:51] Speaker 01:
So basically, you look at whether or not the presented options, whether or not they can be

[00:29:05] Speaker 01:
whether or not the mark without the claim can be displayed in a manner which is similar to or identical to the mark it's being compared with.

[00:29:17] Speaker 01:
And so the question is, is there an overlap?

[00:29:21] Speaker 01:
You don't have to go through, well, in this color it's the same or this color is different.

[00:29:27] Speaker 01:
If there's no overlap, then they're not going to be similar or the same in any.

[00:29:33] Speaker 01:
But if there is an overlap, you have to take that into consideration, and you can't discount it.

[00:29:40] Speaker 01:
literally write it out of the No, I guess maybe I didn't make myself clear.

[00:29:45] Speaker 00:
Maybe the question doesn't make any sense But but what if you find that if you have to if you have to so respond a look at all variations of shading and colors And you come up with one and you say hey this might make a difference It is the mark then limited to the stuff.

[00:30:04] Speaker 00:
That's just similar enough or similar enough.

[00:30:07] Speaker 01:
Yeah, I

[00:30:08] Speaker 01:
But for purposes of likelihood of confusion, it falls within the broad breadth of the senior user's mark.

[00:30:19] Speaker 00:
But if you're saying likelihood of confusion, then how do you discern whether nobody has ever produced anything like this in this color?

[00:30:29] Speaker 00:
So there's no likelihood of confusion.

[00:30:32] Speaker 00:
I mean, I don't know how you would then apply it to likelihood of confusion.

[00:30:36] Speaker 00:
If you're talking about somebody never using a particular shading and color that passes muster, then

[00:30:45] Speaker 00:
Don't you have to show that that's the predominant use of it to figure out whether or not there's going to be confusion in the marketplace?

[00:30:54] Speaker 01:
With due respect, in the Terra and the Citigroup case, using the analogous situation of the standard character mark, which is just the word, which can be displayed in any font, stylization, or color,

[00:31:09] Speaker 01:
You're not required to limit it.

[00:31:12] Speaker 02:
But in this context, the burden was on you as the opposer to show a likelihood of confusion, was it not?

[00:31:18] Speaker 02:
Correct.

[00:31:18] Speaker 02:
So it wasn't the burden on you with this color situation to at least show the board one example, just even one example.

[00:31:27] Speaker 02:
Maybe our Ts are black and white, but the heritage mark is all black.

[00:31:32] Speaker 02:
However it is, their teeth are black and white also, I guess, would be your best case for confusion.

[00:31:40] Speaker 02:
Didn't you have an obligation to make some kind of showing like that to meet your burden?

[00:31:46] Speaker 02:
If that's your argument.

[00:31:48] Speaker 01:
I don't believe there is, because that sounds like the reasonable manners test, where the court has already rejected the suggestion that you have to show, make a showing that the mark is, that the variant that would cause confusion is a reasonable manner of display.

[00:32:14] Speaker 02:
Well, then, if you would answer this, I think I understood part of the response from the government to be, there's no reason to assume that the board did not think through all the different color schemes that were possible and simply find against you.

[00:32:31] Speaker 02:
Shouldn't we just assume that the board has done that work?

[00:32:34] Speaker 01:
Well, they couldn't have in their determination that the erratage mark

[00:32:41] Speaker 01:
you can discern the letter T's, but that's not the dominant impression.

[00:32:45] Speaker 01:
Because if you could, as I believe Your Honor noted, if the T's can be emphasized, and in doing that, de-emphasizes the rectangular geographic shape, then you can't say it's the dominant impression.

[00:33:07] Speaker 01:
You can't exclude the other

[00:33:11] Speaker 01:
if they are taking account color.

[00:33:13] Speaker 01:
So I think that's the answer now.

[00:33:15] Speaker 03:
Yeah, but aren't you saying you, in response to Judge Stark, you're saying you didn't have any burden?

[00:33:23] Speaker 03:
That's the way I understood it.

[00:33:25] Speaker 03:
Judge Stark was saying, didn't you have some obligation to point out to the board, hey, if you use certain coloring on the tees and air ties, you're going to minimize the design?

[00:33:38] Speaker 03:
The question was whether you had a burden.

[00:33:40] Speaker 03:
In this case, apparently nothing was said to the board.

[00:33:43] Speaker 03:
Your argument was that the board's suspicions had the obligation to delve into this.

[00:33:49] Speaker 03:
And the patent office, much to my surprise, agreed with you that the board has an independent obligation.

[00:33:56] Speaker 03:
And I think what Judge Stark was asking was, even if that is so, is that obligation need to be triggered

[00:34:05] Speaker 03:
in a given case by some motion on your side?

[00:34:10] Speaker 01:
I think the comparisons we did of the elements combined with pointing out as we did in the record that there's no claim to color and the board's acknowledgement of that, it's a fact in the record.

[00:34:25] Speaker 01:
The board can't ignore

[00:34:27] Speaker 01:
the fact that there's no claim in color in doing its analysis.

[00:34:30] Speaker 01:
It has to take that into account.

[00:34:33] Speaker 00:
We're out of time.

[00:34:34] Speaker 00:
Thank you.

[00:34:35] Speaker 00:
Thank you.

[00:34:36] Speaker 00:
Thank you.