[00:00:00] Speaker 04:
All right, our final case for argument is 24-1197, Chateau Lynch Beiges?

[00:00:09] Speaker 04:
Vache.

[00:00:11] Speaker 04:
Vache.

[00:00:11] Speaker 04:
I'm not a French speaker.

[00:00:12] Speaker 04:
Versus Chateau Angeles.

[00:00:16] Speaker 04:
I'll take it.

[00:00:17] Speaker 04:
Thank you.

[00:00:18] Speaker 04:
OK, Mr. Colfer, will you please proceed?

[00:00:22] Speaker 01:
May it please the court, I'm appearing for the Chateau Lynch-Baget, the appellant, and opposer.

[00:00:29] Speaker 01:
And if I may, I will refer to the parties as opposer and applicant as below.

[00:00:34] Speaker 01:
This case should have been a garden variety case of likelihood of confusion using this court's precedents.

[00:00:44] Speaker 01:
First, when the goods are identical, less similarity is needed in the marks.

[00:00:51] Speaker 01:
Second, when the leading words or components are identical, or nearly so, it takes less to establish a likelihood of confusion, less similarity when you have the leading components the same.

[00:01:06] Speaker 01:
Instead of that garden variety likelihood of confusion case, the board strayed far off the normal path and into something different in error.

[00:01:19] Speaker 01:
The board erred in finding two house marks.

[00:01:23] Speaker 01:
Second, the error permeated its finding of dissimilarity in the two respective marks.

[00:01:30] Speaker 01:
And third, that error was used to outweigh all the other factors that favored a poser.

[00:01:38] Speaker 00:
But didn't the board, I know the board talked about house marks and how it combined the word echo with house marks.

[00:01:44] Speaker 00:
But at the end of the day, the board did compare the two marks and determined that the word echo didn't

[00:01:51] Speaker 00:
didn't add much.

[00:01:53] Speaker 00:
And the second part of the mark were distinctive enough that even though they both began with echo, there was not a likelihood of confusion.

[00:02:03] Speaker 00:
Isn't that what the board said?

[00:02:04] Speaker 00:
I mean, I know the board talked about house marks, but wasn't that really a side point?

[00:02:09] Speaker 01:
Not at all.

[00:02:10] Speaker 01:
They made it quite clear they used the word significantly.

[00:02:14] Speaker 01:
And then they went out of their way to look at four other cases dealing with dual house masks.

[00:02:20] Speaker 01:
They didn't go back to look at normal likelihood of confusion law at all.

[00:02:24] Speaker 01:
They went off in the woods to find these new cases to support this theory of dueling house marks.

[00:02:31] Speaker 00:
But the word says, doesn't it, bringing all the foregoing principles and observations together, the marks lead with the identical term echo, which contributes to a similarity in appearance.

[00:02:41] Speaker 00:
So far, so good sound and connotation.

[00:02:43] Speaker 00:
But the remainder of the marks are visually and orally different.

[00:02:47] Speaker 00:
So isn't the court comparing the two marks there?

[00:02:50] Speaker 00:
I mean, that analysis there, if we had never heard anything about house marks at all, wouldn't that be enough to sustain the board's decision?

[00:02:57] Speaker 01:
One sentence against pages that they wrote about house marks?

[00:03:01] Speaker 01:
I don't think so.

[00:03:02] Speaker 01:
I mean, they really went out of the way to emphasize house marks when the parties did not submit any evidence or arguments.

[00:03:10] Speaker 01:
It was a complete surprise that they rested this case on house marks.

[00:03:15] Speaker 01:
And they never took on.

[00:03:17] Speaker 01:
the problem of, because the board like to say, your translation makes it more likely there's a house mark, because it's echo of.

[00:03:28] Speaker 01:
But they never took on the case of people who don't translate the mark.

[00:03:32] Speaker 01:
Just look at it.

[00:03:34] Speaker 01:
It's echo followed by some seemingly foreign sounding words that a lot of people wouldn't understand.

[00:03:40] Speaker 01:
Because people are used to buying wines from Europe, and they're used to seeing words that they don't understand.

[00:03:47] Speaker 01:
So that's not unusual.

[00:03:49] Speaker 01:
People will bother to translate it, particularly non-French speakers.

[00:03:54] Speaker 01:
And the question is, ultimately, is there an appreciable number of consumers who could be confused?

[00:04:02] Speaker 01:
I think it's easy to conclude that there is an appreciable number of consumers who would not translate this.

[00:04:09] Speaker 01:
And they would just take it as echo of some foreign words.

[00:04:14] Speaker 03:
Going up on Judge Garcy's question, how do we know

[00:04:17] Speaker 03:
that the board relied on house marks to such an extent that it leads to some form of reversible error or need to vacate and remand.

[00:04:27] Speaker 03:
Pointing to us in the actual record of the opinion, what in the opinion itself shows us that it was such an error that leads to reversal or vacate and remand on that ground?

[00:04:39] Speaker 01:
I think, as I said, the way they emphasized it and went out and found four other cases that they said,

[00:04:46] Speaker 01:
on their own.

[00:04:46] Speaker 01:
They said, we have no precedent.

[00:04:48] Speaker 01:
The Federal Circuit has no precedent.

[00:04:50] Speaker 01:
Or its predecessor, we've got to go out and look at infringement law.

[00:04:54] Speaker 01:
But in the opinion, at the appendix page 25, the last sentence at the bottom bridging 25, 26, moreover, the use of echo with D, apostrophe, and DE followed by the party's house marks contributes significantly

[00:05:14] Speaker 01:
through the overall commercial impression of the marks as invoking the respective house marks.

[00:05:22] Speaker 01:
The sentence is almost redundant.

[00:05:23] Speaker 01:
It says, if you have house marks, it's significant in creating a commercial impression of house marks.

[00:05:30] Speaker 04:
I agree with you.

[00:05:31] Speaker 04:
I think that their utilization of this house mark concept is problematic.

[00:05:38] Speaker 04:
But the word moreover is the kind of thing that we usually use

[00:05:44] Speaker 04:
you know, we've already decided something, moreover, and then you go to that additional step.

[00:05:50] Speaker 04:
And so I think I'm following up now on Judge Scarzy's excellent question about how I get that there's a bunch of Housemarque stuff in here, and I also get your problems with it, but I'm just wondering if that first part of the conclusion, which is where they actually are telling us what they're deciding on similarity and why,

[00:06:10] Speaker 04:
I'm wondering if it doesn't stand alone.

[00:06:13] Speaker 04:
I realize it's only a couple of sentences compared to pages of Housemark discussion.

[00:06:17] Speaker 04:
I get that, but bringing all the legal guidance and observations together and then it goes on to say they leave with these identical terms, echo, but the remainder of the marks are visually and orally different.

[00:06:31] Speaker 04:
And they say echo has conceptual weakness.

[00:06:34] Speaker 04:
If that had been the only thing in this opinion, I would for sure be affirming on this point.

[00:06:39] Speaker 04:
And so I kind of am wondering if it doesn't stand alone to justify their decision, and the moreover isn't.

[00:06:45] Speaker 04:
Moreover, there's also these additional reasons that lend to the conclusion we've already reached.

[00:06:51] Speaker 01:
Go ahead.

[00:06:52] Speaker 01:
No, please, go ahead.

[00:06:53] Speaker 04:
Oh, no.

[00:06:54] Speaker 01:
Are you referring to the part in Appendix 26?

[00:06:56] Speaker 04:
I'm on page 25, Appendix 25.

[00:07:05] Speaker 01:
Right, okay.

[00:07:11] Speaker 04:
Everything else, the preceding paragraphs are all just discussion of house mark cases.

[00:07:17] Speaker 04:
But they don't seem to actually conclude something that matters in this case.

[00:07:21] Speaker 04:
Then they say, bringing all the foregoing legal guidance observations together, the marks lead with identical terms echo, which contribute to similarity and sound and connotation.

[00:07:31] Speaker 04:
Yep, that seems like a reasonable fact finding.

[00:07:33] Speaker 04:
But the remainder of the marks are visually and orally different.

[00:07:36] Speaker 04:
That also seems like a reasonable fact finding to me.

[00:07:39] Speaker 04:
So what is the problem with that?

[00:07:43] Speaker 01:
It's outweighed by the pages of analysis of house marks.

[00:07:47] Speaker 01:
And twice, the board labeled this case as unusual.

[00:07:51] Speaker 01:
I mean, that's an odd step to say, this is an unusual case.

[00:07:55] Speaker 01:
We've never had any circumstances like this.

[00:07:58] Speaker 01:
We're going to go look at a whole body of law that we've never examined before.

[00:08:02] Speaker 01:
And you're saying that that's outweighed by one sentence of a perfunctory statement that overall the marks are different?

[00:08:08] Speaker 04:
Respectfully, the one sentence seems to say all it needs to.

[00:08:12] Speaker 04:
I don't think these marks are at all similar in appearance, sound, or connotation either.

[00:08:19] Speaker 04:
And so I think that that is the test that's supposed to be done for similarity of marks, and it seems like they did it.

[00:08:25] Speaker 04:
And honestly, if we give you a vacate and remand on

[00:08:29] Speaker 04:
this rhetoric in the opinion about house marks that probably ought not to be here.

[00:08:34] Speaker 04:
Your client is no better off.

[00:08:35] Speaker 04:
He's just going to spend more money on his lawyer arguing, but at the end of the day, the case is going to come out the same way because these marks are not similar.

[00:08:41] Speaker 04:
That's all there is to it.

[00:08:42] Speaker 04:
They're not similar.

[00:08:43] Speaker 04:
The board is correct in finding they're not similar.

[00:08:45] Speaker 04:
I find they're not similar to NOVO, but that's not even my standard of review.

[00:08:48] Speaker 04:
My standard of review is substantial evidence because it's a fact finding.

[00:08:51] Speaker 04:
So I don't think

[00:08:54] Speaker 04:
that that rhetoric about house marks helps your client at the end of the day because even if we vacate and remand, if you convince us that that infected this decision and it's wrong, you're still going to lose on remand and your client is going to spend more money on his lawyer.

[00:09:07] Speaker 04:
That's all that's going to happen.

[00:09:10] Speaker 04:
That wasn't really a question.

[00:09:12] Speaker 04:
I mean, I don't know what you're going to say in response to it.

[00:09:14] Speaker 01:
It seems to me difficult to say that there's no similarity.

[00:09:17] Speaker 01:
As I said, the two basic precepts, when the goods are identical, less similarity is needed.

[00:09:25] Speaker 01:
Second, when the leading components are the same, it increases the likelihood of confusion.

[00:09:31] Speaker 01:
This court has issued dozens of cases on each one of those principles,

[00:09:37] Speaker 01:
And now you're saying, well, it doesn't really matter in this case, because the second words are different.

[00:09:42] Speaker 00:
To get back to the Chief's point, though, if you look at page 25, that first sentence is a finding by the board.

[00:09:51] Speaker 00:
That finding by the board is sufficient for the board to base its decision on, regardless of the detour with house marks.

[00:10:01] Speaker 00:
What's the argument that if this got sent back to the board, the board wouldn't say the exact same thing as it said

[00:10:07] Speaker 00:
in the first sentence of the bottom paragraph on page 25.

[00:10:12] Speaker 00:
Those two sentences say nothing about house marks.

[00:10:17] Speaker 00:
They actually do appropriate analysis of the marks themselves.

[00:10:20] Speaker 00:
Why wouldn't the board just do that analysis again?

[00:10:23] Speaker 01:
Well, they didn't do that, and they ignored what consumers would actually see.

[00:10:28] Speaker 01:
the marks as they are.

[00:10:29] Speaker 01:
The consumers would not see these as house marks.

[00:10:33] Speaker 00:
I guess important to this section of 25 that doesn't talk about house marks, why wouldn't the board just say the same thing?

[00:10:41] Speaker 00:
The board could just literally go through its opinion and cross out all the house mark analysis and provide this.

[00:10:47] Speaker 00:
That would be a sufficient opinion of the board, which we'd have to.

[00:10:51] Speaker 01:
But that's what the board didn't do that.

[00:10:54] Speaker 01:
If they weighed the principles that I just said, the two major principles that this court has enunciated, it's not clear.

[00:11:02] Speaker 01:
To me, they should have found likelihood of confusion.

[00:11:07] Speaker 01:
I think this decision is just infested with this housemark analysis.

[00:11:13] Speaker 01:
I mean, there's pages of it.

[00:11:15] Speaker 01:
And then for it to be saved by one sentence where they say, oh, overall, there's a difference.

[00:11:20] Speaker 03:
But do you also agree that there's other analysis beyond the house mark analysis in the actual opinion itself?

[00:11:29] Speaker 01:
Of the similarity of the marks?

[00:11:31] Speaker 01:
Because the other factors weren't in opposers' favor.

[00:11:35] Speaker 01:
Other analysis of the similarity of marks, the court is just, I mean, the board is just wrong.

[00:11:42] Speaker 01:
Sometimes they just stated false things.

[00:11:45] Speaker 01:
It stated that Lynch-Baget was a house mark for Opposer's premium wine.

[00:11:52] Speaker 01:
That's false.

[00:11:53] Speaker 01:
We do not have a registration of Lynch-Baget.

[00:11:56] Speaker 01:
It emphasizes that the wine is called a second wine.

[00:12:01] Speaker 01:
No consumer's going to know that.

[00:12:03] Speaker 01:
As a matter of marketing, no one's going to label the product second wine because everyone wants the first wine.

[00:12:10] Speaker 01:
I mean, they relied on things that are just either false

[00:12:15] Speaker 01:
or completely unrelated to what they were doing.

[00:12:21] Speaker 01:
And they just never really approached it from the view of an ordinary consumer.

[00:12:27] Speaker 01:
This is like a legal analysis in the back room, where they take apart the record and go hopping through it, trying to support a house-mark theory.

[00:12:36] Speaker 03:
Well, if you just look at the opinion itself, right, if we're looking at it and you want to focus on the similarities and dissimilarities of the mark section, right?

[00:12:44] Speaker 03:
So appendix pages at least 20 through the top of 22 are not focused on the house mark analysis, correct?

[00:12:59] Speaker 01:
Yeah, that's mostly reciting the standard law in the opening paragraph.

[00:13:07] Speaker 01:
And then they say it begins with it with the word echo.

[00:13:10] Speaker 01:
I mean, they really don't get to it until page 22, first full paragraph at the end.

[00:13:21] Speaker 01:
It appears that Anglis and Lune Spaget are the party's house marks.

[00:13:25] Speaker 01:
How does it appear?

[00:13:27] Speaker 01:
I mean, what they cite after that is either flimsy evidence, incorrect evidence, or just assumptions.

[00:13:35] Speaker 01:
They've already made up their mind that it's house marks.

[00:13:38] Speaker 04:
And I mean, I just note also that when they weighed the relevant factors on page 26,

[00:13:44] Speaker 04:
They basically said, look, goods are identical in part.

[00:13:48] Speaker 04:
Channels of trade are not limited.

[00:13:50] Speaker 04:
So presumed identical plus the customer's presumed identical.

[00:13:54] Speaker 04:
And then it says, but weighing against a conclusion that confusion is likely, the fact that dissimilarities between the marks outweigh the similarities.

[00:14:05] Speaker 04:
Right.

[00:14:07] Speaker 04:
They don't say anything about house marks.

[00:14:09] Speaker 04:
Like in their conclusion, they don't say anything.

[00:14:11] Speaker 04:
They don't seem to be saying because of these house marks.

[00:14:14] Speaker 04:
They don't put any of their ultimate weighing on anything related to the house marks.

[00:14:21] Speaker 01:
They didn't have to, because for four complete pages, they explain the dissimilarities in terms of house marks.

[00:14:28] Speaker 01:
When they use it in one sentence on page 26, it's with an understanding that you know what we mean by dissimilarities.

[00:14:37] Speaker 01:
It's because they have different house marks.

[00:14:39] Speaker 01:
They didn't have to stress them.

[00:14:41] Speaker 01:
They didn't have to stress them.

[00:14:41] Speaker 04:
Why don't we save the rest of your time for rebuttal.

[00:14:43] Speaker 04:
Let's go ahead and hear from the opposing council.

[00:14:54] Speaker 02:
Good morning, Your Honors.

[00:14:55] Speaker 02:
Mr. Brasina?

[00:14:56] Speaker 02:
Is it Brasina?

[00:14:57] Speaker 02:
David Brasina for Applegate Appellee Chateau Angeles.

[00:15:04] Speaker 02:
May I please report?

[00:15:07] Speaker 02:
The board was corrupt in finding the dominant components of the marks, showing no likelihood of confusion.

[00:15:15] Speaker 02:
There is ample evidence of that.

[00:15:17] Speaker 04:
I mean, the problem is this Housemarque analysis.

[00:15:20] Speaker 04:
This Housemarque analysis is just not right.

[00:15:24] Speaker 04:
So what do we do about that?

[00:15:25] Speaker 04:
You can't convince me it was right.

[00:15:28] Speaker 04:
Your only chance is to convince me it's harmless error.

[00:15:31] Speaker 04:
At least for me.

[00:15:32] Speaker 04:
I don't want to speak for everybody.

[00:15:33] Speaker 04:
That's for me where I am.

[00:15:35] Speaker 04:
So can you try to convince me it's harmless error?

[00:15:38] Speaker 02:
If we edited the decision to substitute

[00:15:45] Speaker 02:
dominant terms, it would be substantially elimination of house marks.

[00:15:53] Speaker 04:
I missed that.

[00:15:53] Speaker 04:
Could you maybe try that one again?

[00:15:55] Speaker 02:
If we took out those four pages about house marks, the dominant terms remain Lynch, Bage, and Angeles.

[00:16:10] Speaker 02:
It doesn't matter if you label them house marks, which

[00:16:15] Speaker 02:
In attorney mark of law class, I might say house mark would be separate.

[00:16:24] Speaker 02:
But here, it is the dominant term pointed to by echo J or D. And where did it say that dominant term thing, in the board's opinion?

[00:16:45] Speaker 04:
Where did it say that the word echo is common and that the things that follow the word echo are the dominant terms?

[00:16:59] Speaker 02:
I don't know if they have been my language, but it is the term.

[00:17:04] Speaker 04:
No, but that would be important.

[00:17:05] Speaker 04:
What you just said would be great.

[00:17:06] Speaker 04:
If that's in the opinion, I think that you are much stronger.

[00:17:10] Speaker 04:
So is it in the opinion, did the board actually make a finding about what the dominant terms were in the mark?

[00:17:17] Speaker 02:
I don't recall that they used the word dominant.

[00:17:20] Speaker 02:
I expect that that's my argument that's what they meant when they called them house marks.

[00:17:27] Speaker 02:
But opposer admits.

[00:17:31] Speaker 02:
in their inner arbitrary answer, that echo the Lynch-Baget.

[00:17:42] Speaker 02:
Lynch-Baget is the name of their crawl-through wine, and echo they naturally follows.

[00:17:54] Speaker 02:
They admitted it in their inner arbitrary answer.

[00:17:59] Speaker 00:
Would you agree that all this house mark analysis is just really misplaced because there wasn't evidence in the record that these are house marks as house marks are commonly understood?

[00:18:09] Speaker 02:
I would say that is a correct statement.

[00:18:12] Speaker 00:
And so isn't the question for us as to whether or not this analysis of house marks somehow improperly affected the board's decision?

[00:18:23] Speaker 00:
and therefore should be sent back to the board with instructions to do it again without the House Park analysis?

[00:18:30] Speaker 02:
It is whether the inclusion of that terminology is an error of law.

[00:18:41] Speaker 02:
And if there is substantial evidence, like the admissions, that emphasize that Lynch-Baget and Angelus

[00:18:54] Speaker 02:
are terms important enough to find no likelihood of confusion, then the decision should be affirmed.

[00:19:06] Speaker 04:
Well, but that last part, I don't see that in here.

[00:19:08] Speaker 04:
That's what I'm looking for.

[00:19:09] Speaker 04:
I want that to be here, and I personally believe it, but I don't see it.

[00:19:14] Speaker 04:
And we can't replace the board's analysis under Chenery with our own thinking about how we could come to the same outcome.

[00:19:22] Speaker 04:
We are required to only pass upon what the board

[00:19:27] Speaker 04:
actually stated was its reasons.

[00:19:30] Speaker 04:
And I don't see that in here.

[00:19:31] Speaker 04:
And that's what's bothering me.

[00:19:33] Speaker 04:
I'll be honest.

[00:19:34] Speaker 04:
I kind of agree with you on the outcome.

[00:19:36] Speaker 04:
But I don't think that my personal view is how the case gets decided.

[00:19:40] Speaker 04:
It's got to be whether the board reached it and whether I can affirm on the basis they chose.

[00:19:47] Speaker 02:
Well, the board had evidence of the Chateau Lynch-Vaugier registration.

[00:19:55] Speaker 02:
with Lynch-Baget as a distinctive term.

[00:20:03] Speaker 02:
Chateau is not distinctive.

[00:20:05] Speaker 02:
They had the admissions by Chateau Lynch-Baget that the whole point of Echo de Lynch-Baget was to point through the brown crew.

[00:20:17] Speaker 02:
And it is a secondary, second wine.

[00:20:22] Speaker 03:
What is your best legal support

[00:20:25] Speaker 03:
for how this court could affirm despite the House Marff analysis?

[00:20:30] Speaker 02:
If you look at the Marffs as a whole, the primary line names are very different.

[00:20:45] Speaker 02:
The Marffs as a whole are different.

[00:20:50] Speaker 02:
They didn't need to discuss House Marff as a label.

[00:20:55] Speaker 02:
They could have just said echo of points two, as is admitted, another label, another brand.

[00:21:11] Speaker 02:
And we find that that pointing two is enough to emphasize the words Lynch, Bage, and Angeles.

[00:21:26] Speaker 02:
The marks are different.

[00:21:28] Speaker 02:
If you consider them as a whole, which they must do.

[00:21:33] Speaker 04:
I know, but the problem is we don't get to do that.

[00:21:35] Speaker 04:
Like, that isn't how it works.

[00:21:37] Speaker 04:
We don't have to know the review over this, and we don't get to render an analysis, even if the record supports it, that differs from what the board articulated.

[00:21:50] Speaker 04:
I mean, you're familiar with Chenery, right?

[00:21:53] Speaker 04:
This isn't like a jury trial, where we look to see if there's substantial evidence in the record for a black box verdict.

[00:22:00] Speaker 04:
We have a particular line of analysis, and we have no choice but to simply decide whether that articulated line of analysis is correct or not.

[00:22:09] Speaker 00:
Let me take you back to page 25 in the appendix.

[00:22:13] Speaker 00:
So we're looking at the board's decision, the bottom paragraph, and that first sentence.

[00:22:18] Speaker 00:
I'm sorry, the first two sentences.

[00:22:20] Speaker 00:
Bring all the foregoing legal principles and, I'm sorry, guidelines and observations together.

[00:22:24] Speaker 00:
The marks leave with identical term echo, which contributes to a similarity in appearance, sound, and connotation.

[00:22:30] Speaker 00:
But the remainder of the marks are visually and orally different.

[00:22:34] Speaker 00:
Is that enough to affirm this decision, or does there need to be more?

[00:22:39] Speaker 02:
As a finding, that is enough.

[00:22:41] Speaker 02:
Why is that enough?

[00:22:43] Speaker 02:
Because there is ample evidence consistent with that.

[00:22:48] Speaker 00:
And so are you saying it's enough because the board points out that the marks are visually and orally different?

[00:22:54] Speaker 02:
That is a valid conclusion.

[00:22:57] Speaker 00:
So the court's making a finding that the marks are visually different, and they also sound different?

[00:23:02] Speaker 00:
Yes.

[00:23:02] Speaker 00:
In there, it's focusing on the second part of the marks.

[00:23:06] Speaker 02:
Those are the differences.

[00:23:07] Speaker 00:
Does the use of ECHO and the other registrations that you submitted help you?

[00:23:13] Speaker 02:
It emphasizes there is ample evidence of both Lynch-Baget and Angeles as recognizable distinctive terms.

[00:23:32] Speaker 02:
And echo of points to a primary line.

[00:23:38] Speaker 02:
It is a second line.

[00:23:40] Speaker 00:
But in other words, you submitted registrations to the board of the use of echo in a variety of different contexts.

[00:23:49] Speaker 00:
Echo Peak, Echo Falls, Echo Bay, and so on.

[00:23:52] Speaker 00:
And the board found then that these registrations reflect that echo is a fairly common

[00:24:00] Speaker 00:
chosen term in the field.

[00:24:01] Speaker 00:
And so the board essentially, did that aid the board in its determination that echo wasn't a particularly dominant or important part of these marks?

[00:24:12] Speaker 02:
Yes.

[00:24:13] Speaker 02:
The board used the presence of third party registrations to interpret the meaning of the words.

[00:24:23] Speaker 02:
Echo is not particularly distinctive.

[00:24:29] Speaker 02:
The other components are distinctive and are enough to be weighed to find they control the decision on likelihood of confusion.

[00:24:45] Speaker 04:
Can you turn to appendix page 26?

[00:24:47] Speaker 04:
This is the board's decision.

[00:24:59] Speaker 04:
Yes, ma'am.

[00:25:00] Speaker 04:
Tell me when you have it handy.

[00:25:04] Speaker 04:
You got it?

[00:25:04] Speaker 04:
Yes.

[00:25:05] Speaker 02:
All right.

[00:25:05] Speaker 04:
So I'm looking at that last sentence, which it looks to me to be the fact-finding, right?

[00:25:14] Speaker 04:
This is the fact-finding on similarity.

[00:25:16] Speaker 04:
The board has an obligation to do the facts.

[00:25:19] Speaker 04:
And the facts, the question is, how similar are the marks?

[00:25:22] Speaker 04:
That's what this first factor is, right?

[00:25:23] Speaker 04:
How similar the marks are?

[00:25:25] Speaker 04:
Is that right?

[00:25:26] Speaker 02:
Yes.

[00:25:27] Speaker 04:
So this is the fact-finding.

[00:25:29] Speaker 04:
We think that in this unusual case, where both parties' marks incorporate different appearing house marks as part of a unitary expression, and where the common term between the marks is weak, the dissimilarities outweigh the similarities.

[00:25:50] Speaker 04:
So my problem, I 100% think that they did find the common term is weak.

[00:25:54] Speaker 04:
That word echo is weak.

[00:25:55] Speaker 04:
So that's a fact finding.

[00:25:57] Speaker 04:
But what they said in their fact finding on similarity with regard to the non-weak part is they just seem to hinge it on that Housemarx stuff.

[00:26:07] Speaker 04:
And I don't know what to make of that.

[00:26:09] Speaker 02:
Well, another point on the Housemarx is I can't tell you as a matter of law that

[00:26:20] Speaker 02:
what they call the ground crew marks are the ones at issue.

[00:26:28] Speaker 02:
I can't tell you those are not house marks.

[00:26:32] Speaker 02:
Usually, if this were a trademark law class, we might say house marks are often printed separately.

[00:26:39] Speaker 02:
But I can't say as a matter of law that a term

[00:26:50] Speaker 02:
commonly used in multiple marks by an applicant or registrant.

[00:26:59] Speaker 02:
I can't say there's a matter of law that's not a house mark.

[00:27:04] Speaker 02:
The unusual case part of it is we don't have a law that says they are not house marks.

[00:27:14] Speaker 02:
We also have a law that talks about a family of marks, but that's to extend

[00:27:21] Speaker 02:
to a different mark.

[00:27:24] Speaker 02:
We've got law about unitary terms, but that doesn't apply with the logic of opposers that we should ignore the differences.

[00:27:39] Speaker 02:
They say, only look to the first words and then stop.

[00:27:45] Speaker 02:
That's not an error of fact or law.

[00:27:52] Speaker 02:
We should not look at the first word and stop.

[00:27:56] Speaker 02:
Consider the marks as a whole.

[00:27:58] Speaker 02:
The board did that.

[00:27:59] Speaker 02:
You call it a house mark.

[00:28:02] Speaker 02:
There's no law that says it's not a house mark.

[00:28:07] Speaker 02:
And when we consider the marks as a whole, they are very different.

[00:28:13] Speaker 00:
Let me point you back to that language that Chief Judge Moore asked you about.

[00:28:16] Speaker 00:
If we look at that sentence, we think that in this unusual case, the sentence goes through and kind of does some wind up, but then ends with the dissimilarities outweigh the similarities in the respective marks.

[00:28:29] Speaker 00:
Is that the finding?

[00:28:30] Speaker 00:
Yes.

[00:28:31] Speaker 00:
And what's the import then in this unusual case where both parties incorporate different appearing house marks as part of unitary expressions?

[00:28:44] Speaker 00:
What's the import of that?

[00:28:49] Speaker 02:
We don't have a definition of house marks as a matter of law.

[00:28:53] Speaker 02:
That's unusual.

[00:28:55] Speaker 02:
This is exactly a situation of a family of marks

[00:29:00] Speaker 02:
being projected.

[00:29:01] Speaker 00:
So if we take the term house marks and we define it as names of the parties, then everything follows.

[00:29:10] Speaker 00:
Then we're fine.

[00:29:12] Speaker 00:
The problem is when we look at house marks and try to put the trademark definition on it, like those cases that the board cited where those were house marks, then we get into trouble.

[00:29:28] Speaker 02:
I'd say

[00:29:29] Speaker 02:
I would have preferred they had not used the terminology house marks.

[00:29:33] Speaker 00:
And if they use the term party's names?

[00:29:36] Speaker 02:
Party's names.

[00:29:37] Speaker 02:
Or again, the admission is, and the evidence shows, echo of is a second line.

[00:29:47] Speaker 02:
That's in their admission, and it's in our website, I think.

[00:29:51] Speaker 02:
It's in the record.

[00:29:53] Speaker 02:
So even if there's a second line, they say it refers to their ground proof.

[00:29:59] Speaker 02:
which is their primary wine name.

[00:30:03] Speaker 02:
So they admit, Eiffel refers to something else.

[00:30:08] Speaker 02:
And the board is eminently correct in concluding that something else that the second wine includes is the term that is recognized.

[00:30:23] Speaker 04:
Okay Council, thank you so much.

[00:30:26] Speaker 04:
We have two minutes for rebuttal.

[00:30:30] Speaker 01:
Okay two quick points.

[00:30:38] Speaker 01:
Just to reiterate what I said before, Lynch Baget is not a registered mark for their wine.

[00:30:46] Speaker 01:
So it's totally unfair to say that we said that was a house mark.

[00:30:51] Speaker 01:
That's not in the record at all.

[00:30:52] Speaker 01:
Second, you cannot equate the party's names as house marks.

[00:30:58] Speaker 01:
I mean, the party's names are Chateau.

[00:31:00] Speaker 01:
That's not part of the mark at all to be compared.

[00:31:02] Speaker 01:
So it's not fair to dissect their company name and suddenly turn it into a house mark.

[00:31:09] Speaker 01:
Okay.

[00:31:09] Speaker 01:
Enough about house marks.

[00:31:11] Speaker 01:
Uh, even if this case only went to remand, at page nine, I summed up some of the cases, page nine of my brief, some of the cases where the leading word was the same and they found likelihood of confusion.

[00:31:27] Speaker 01:
And I think this case fits comfortably within that of Echo Day.

[00:31:32] Speaker 01:
I mean, some of the cases are Rain Barrel and Rain Fresh, uh, Gold Strassum and Gold Schleiger.

[00:31:39] Speaker 01:
And also, I thought that page 11 was also a fitting case, the Cicato case, where the marks were Duca di Osta and Duca di Arezzo.

[00:31:52] Speaker 01:
My apologies to the Italian language.

[00:31:56] Speaker 01:
And the board recognized that the two second words are Italian cities, but consumers are not going to know that.

[00:32:02] Speaker 01:
They're going to see the lead word followed by some foreign word.

[00:32:06] Speaker 01:
And that's what we've got here.

[00:32:08] Speaker 01:
I think the board could have easily concluded that there's a likelihood of confusion if it hadn't gone off on the wrong path.

[00:32:18] Speaker 04:
OK.

[00:32:18] Speaker 04:
I think both counsel in this case was taken under submission.