[00:00:00] Speaker 04:
thank Judge Hall from the District of Delaware for joining us today.

[00:00:04] Speaker 04:
We very much appreciate her presence.

[00:00:06] Speaker 04:
It's an absolute honor.

[00:00:07] Speaker 04:
Thank you, Chief.

[00:00:08] Speaker 04:
Our first case for argument is 23-2401 Eden Foods versus Stewart.

[00:00:15] Speaker 04:
Ms.

[00:00:15] Speaker 04:
Kozak, please proceed.

[00:00:18] Speaker 03:
Good morning, Your Honors.

[00:00:20] Speaker 03:
May it please the court.

[00:00:22] Speaker 03:
My name is Adrienne Kosak.

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I'm an attorney with the firm Wiley-Ryne.

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I represent the appellant in this matter, Eaton Foods, Inc.

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And we have requested to reserve three minutes of time for rebuttal.

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My client, Eaton Foods, is a half century old institution in the field of natural and holistic consumable goods.

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For almost 60 years now,

[00:00:46] Speaker 03:
Eden Foods has built a massive brand, totaling 300 different products and related services, all centered around a family of Eden-formative marks.

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And you have 300?

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Goods.

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Goods.

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Separate products.

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And what portion of those are at issue here with respect to the dietary supplement?

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So we've made two separate arguments here, Your Honor.

[00:01:13] Speaker 03:
decades old, incontestable trademark registrations for legally identical goods, dietary supplements.

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There are two registrations to that effect that are for the word Mark Eden.

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And we believe that the errors in the court's decision should, if they were corrected, reversal is appropriate, just based on those two registrations.

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But in addition to that, we have also asserted our larger family of Eden formative marks that enjoys a wide degree

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of commercial renown such that it has been recognized in the past as being a strong family of marks that are afforded broad protections.

[00:01:48] Speaker 01:
But the key here is the similarity of marks, right?

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The key issue for the T-Tap was?

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That was one of the primary issues, though that issue was repeatedly informed by their impression of the commercial strength of the mark.

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And with respect to the commercial strength, that larger portfolio is highly relevant because of the high degree of renown that the brand enjoys.

[00:02:13] Speaker 01:
Well, why don't you talk a little bit about the likelihood of confusion based on the dissimilarity of the marks.

[00:02:19] Speaker 01:
And that's a major factor, right?

[00:02:22] Speaker 01:
And you're disputing that because?

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We are disputing that, Your Honor.

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We are disputing that because the board's perception of dissimilarity was based on an error of fact.

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The substantial evidence does not support the conclusion that the board drew.

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The board acknowledged right out of the gate that Eden Foods registered incontestable mark has been wholly incorporated into the Adam and Eden formulations mark.

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The board acknowledged that the marks were similar in both sight and sound.

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Where the board found differences was connotation and, as a result, overall commercial impression.

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The factual record does not support the conclusions that the board drew regarding connotation.

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Particularly, the board cabined Eden Foods' mark as being defined as a place, referring to the Garden of Eden, whereas the Appellee's mark was- Well, you didn't dispute that Eden had the connotation of the Garden of Eden.

[00:03:24] Speaker 01:
So why was the board incorrect to say, this is a place?

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We don't dispute that it evokes the Garden of Eden.

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Our position is that- And is the Garden of Eden a place?

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It is a place.

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It is, as the dictionary definition that the board relied on, it is more than a place.

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It is a place.

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It is a general sense of paradise.

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And it is more metaphorical qualities that are associated with that place, such as innocence and bliss.

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We had put into the record testimony of both parties' corporate witnesses, where they discussed that the mark was intended to evoke the ideas of Eden rather than necessarily just a place.

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The other issue,

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with the board's definition was that it identified the Adam and Eden formulations mark with simply the inhabitants of Eden and suggested that these were two totally separate commercial impressions.

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But the dictionary definition on which they relied expressly references Adam and Eve as the reference.

[00:04:23] Speaker 01:
So how would you articulate your argument?

[00:04:25] Speaker 01:
Because I'm getting a little confused.

[00:04:26] Speaker 01:
You agree Garden of Eden is a place, Adam and Eve are the inhabitants of the Garden of Eden.

[00:04:32] Speaker 01:
And are you saying,

[00:04:34] Speaker 01:
that's the same thing?

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We're saying that there's a related connotation between the two.

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And to find that based on a connotation that by their own judicially noticed dictionary definition references both things to say that they are so distinct as to find that there is dissimilarity despite also acknowledging similarity in sight and sound, which alone could be sufficient to find similarity here.

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When that connotative relationship that is clearly evidenced by the

[00:05:03] Speaker 03:
evidence of record is combined with the board's acknowledgments regarding sight and sound.

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The substantial evidence does not support the board's conclusion of greater dissimilarity than similarity with respect to these marks.

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The other point that I believe is related to this, Your Honor, is the question of commercial weakness, that the board acknowledged that the Eden mark with respect to supplement goods was conceptually strong.

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but found that it was commercially weak such that it should be afforded a narrower scope of protections, a scope of protections that would only exclude strikingly similar marks.

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That decision was based on legal error.

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It was a misapplication of this court's precedent in Juice Generation and the follow-on precedent in Jack Wolfskin.

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The board found that the mark was commercially weak based on eight internet screenshots.

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of purported unregistered uses, seven of which were simply screenshots from amazon.com, one of which was the user's independent e-commerce site.

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There was no evidence considered by the board.

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And these are by other people, right?

[00:06:19] Speaker 01:
Correct.

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These are.

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And your main argument here seems to be kind of a numbers thing.

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I mean, is that what it is that in the other cases you cite, there were 26.

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There were more numbers.

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How are we supposed to evaluate that on a substantial evidence review?

[00:06:38] Speaker 03:
We don't consider it a numbers thing, Your Honor.

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We believe that while the numbers are relevant, the case law is clear that in order for third party references to speak meaningfully about the commercial strength of an existing mark, there must be evidence of consumer awareness of those third party references.

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Otherwise, they wouldn't in any way impact how consumers perceive the source identifying significance of the mark at issue.

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Because of that, it's been this court's longstanding precedent that the probative value of third party trademarks depends entirely on their usage.

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And that's the 2005 case Paul imports.

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In the cases that the board cites, juice generation particularly, this court found that there can be instances in which third party uses are so considerable

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that their mere existence on their face has some degree of probative value, even if the person offering the references didn't go through their paces of proving up how consumers evaluate every single one of those uses.

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In Jack Wolfskin, this court went on to define that that degree of use is ubiquitous.

[00:08:01] Speaker 01:
And so are you making a legal argument?

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Is there some legal standard that wasn't found?

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Because the T-Tap sees these cases every day.

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We see very few.

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And there's a substantial evidence review if that's what we're talking about.

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So evaluating the quantity and where is the line being drawn is kind of hard to do on appeal.

[00:08:23] Speaker 01:
So what is the legal standard?

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We aren't saying that there is a legal error here.

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Because the controlling law in this situation

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is that of Palm Bay Imports, that without proof of how consumers actually perceive these third party references, they are not competent evidence of commercial strength.

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The precedent on which the board relied was inapposite.

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So it was a legal error to apply juice generation, because it only applies where there is use that can be considered ubiquitous, such that the mere existence of these uses is

[00:09:00] Speaker 03:
is relevant on its face.

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I would note, however, Your Honors, that Juice Generation didn't find that this ubiquitous use suggests that a mark is always weak.

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But rather, they simply were mandated for the board to consider that evidence.

[00:09:15] Speaker 02:
The way you framed this in your statement of the issues was that the board held that the opposer was not required to submit evidence of consumer awareness.

[00:09:30] Speaker 02:
But the screenshots included thousands of user reviews.

[00:09:35] Speaker 02:
Isn't that evidence of consumer awareness?

[00:09:40] Speaker 03:
Two issues there, Your Honor.

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Number one is that that is not something that the board considered in its decision.

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And in fact, when it responded to our citing of Palm Bay imports to show that these

[00:09:54] Speaker 03:
were not relevant to the consideration, it specifically said it didn't need to consider that third party usage.

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And the second issue is that while there is some data available from those screenshots, it's not competent evidence regarding the strength of a US trademark.

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There is case law from this court that says the only relevant consumers when assessing a US

[00:10:18] Speaker 03:
trademark are US consumers.

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And that evidence on the face of the screenshots has no differentiation as to the types of consumers there.

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And so it is not competent evidence of US consumer exposure to these trademarks.

[00:10:38] Speaker 03:
Your Honor, our position is that the board's application of juice generation here

[00:10:46] Speaker 03:
was a legal error, and it broadened Jews' generation to the point that it effectively overruled the longstanding precedent of Palm Bay imports regarding what constitutes probative evidence of the commercial strength of a mark.

[00:11:01] Speaker 03:
When you take away the legal error regarding strength,

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These marks, the board acknowledges, are entitled to the normal scope of protections that an inherently strong mark would be.

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Its decision on similarity was expressly influenced by its finding that these marks were only entitled to a narrow scope of evidence.

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So both its conclusion regarding

[00:11:35] Speaker 03:
similarity, and its overall conclusion regarding a likelihood of confusion were expressly influenced by this legal error in assessing strength.

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When you take away those legal errors, what we are left with is the board's acknowledgment that the party's marks are directed to legally identical goods.

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And that is a factor that it acknowledged weighed heavily in favor of a likelihood of confusion.

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We are left with the finding of a conceptually strong mark.

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We are left with the finding of visual and phonetic similarities between the party's marks.

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We're left with marks that move in the same channels of trade and marks that are sold to the same consumer base.

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Once the errors that we've discussed here are corrected, literally everything else that the board considered weighs in favor of a finding of likelihood of confusion.

[00:12:24] Speaker 03:
Your Honor, I see I'm in my rebuttal time, so I'm happy to take questions or take my seats.

[00:12:28] Speaker 04:
OK, thank you, Counsel.

[00:12:36] Speaker 04:
Proceeding.

[00:12:40] Speaker 00:
Thank you, Chief Judge Moore, and may it please the court.

[00:12:42] Speaker 00:
I'd like to start where my friend started on the issue of the similarity or dissimilarity of the marks, because I think that's largely dispositive of the issues in this appeal.

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Our position is that in comparing the marks, the board applied the correct legal test, properly considered the marks as a whole, and its conclusion that the marks are dissimilar

[00:13:05] Speaker 00:
based largely on the undisputed wordplay and the applied form mark is supported by substantial others.

[00:13:13] Speaker 00:
I take my friend's argument to be that the board incorrectly relied on a dictionary definition that the board had judicially noticed.

[00:13:21] Speaker 01:
Let's say, hypothetically, one of the marks was Garden of Eden rather than Just Eden, and the other mark was Adam and Eve.

[00:13:31] Speaker 01:
You think that would be the same result?

[00:13:33] Speaker 00:
I think that would make a big difference, because I think the board focused in on the wordplay of the applied-for mark.

[00:13:40] Speaker 00:
So the board recognized that what people walk away, what consumers walk away from the applied-for mark is the wordplay relative to... Well, yeah.

[00:13:50] Speaker 01:
I don't know what wordplay means, but the wordplay is Adam and Eve in the Garden of Eden, and they've truncated that.

[00:13:58] Speaker 01:
Is that what we're calling wordplay here?

[00:14:00] Speaker 00:
What we're calling wordplay here is in place of where you would expect Eve, you get the word Eden.

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And so that kind of incongruous combination of Eden where you wouldn't expect it is the wordplay that the board was focused on.

[00:14:12] Speaker 01:
But what is the connotation of the wordplay?

[00:14:15] Speaker 01:
It's Adam and the Garden of Eden, right?

[00:14:19] Speaker 01:
Adam and Eve of the Garden of Eden.

[00:14:21] Speaker 00:
Correct.

[00:14:21] Speaker 00:
So it is a wordplay on those two inhabitants.

[00:14:25] Speaker 00:
So the connotation of commercial impression is a wordplay on Adam and Eve.

[00:14:29] Speaker 01:
So if we had Garden of Eden versus Adam and Eve in the Garden of Eden, you'd think this conclusion would be the same.

[00:14:37] Speaker 00:
I think that difference would heavily factor into the board's analysis.

[00:14:40] Speaker 00:
Because again, in that situation, there isn't a wordplay, which I think factored heavily into the board's analysis here.

[00:14:46] Speaker 01:
And you think that the word play makes it more interesting, different, and just recognizable?

[00:14:52] Speaker 00:
Yes, absolutely.

[00:14:53] Speaker 00:
And especially the last part there.

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I think what the board is saying is that that's what consumers walk away from.

[00:14:58] Speaker 00:
Obviously, the EVE mark does not include any sort of wordplay, but the Adam and Eve

[00:15:02] Speaker 00:
I'm sorry, the Adam and Eden formulations where Mark does include this work.

[00:15:06] Speaker 01:
What about the commercial, the argument we spoke with your friend a bit, about five minutes, about the commercial strength and what the board did, and just listing those references.

[00:15:14] Speaker 01:
And that seems contrary to law to our precedent.

[00:15:18] Speaker 00:
So our position on the third party use is that this court is confronted with a legal question, which is, in circumstances where the specific extent and usage is not fully proven,

[00:15:31] Speaker 00:
Is there some sort of lower bound in their number of uses that must be met before a fact finder can consider the face of the evidence before it?

[00:15:39] Speaker 00:
Our position is that this court's more recent precedent in Jewish generation, Jack Wolfskin and Spiron, don't speak to a lower bound.

[00:15:47] Speaker 00:
What they speak to is kind of a more general proposition that even when the extent and usage is not specifically shown, a fact finder should still consider the face of the evidence before it.

[00:15:57] Speaker 01:
I mean, what about the factual question?

[00:16:03] Speaker 01:
Was there sufficient evidence to establish the board's conclusion?

[00:16:09] Speaker 00:
So in this case, based on the record before it, the board found that the eight third-party uses here were sufficient to show usage to a non-trivial extent.

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And it's our position that that finding is supported by substantial evidence.

[00:16:22] Speaker 01:
So you're using the phrase non-trivial.

[00:16:24] Speaker 01:
Your friend used the word ubiquitous.

[00:16:27] Speaker 01:
Are both of those words found in our case law?

[00:16:29] Speaker 01:
There's a big difference between ubiquitous and not trivial.

[00:16:35] Speaker 00:
Of course.

[00:16:35] Speaker 00:
There's definitely a large difference between the two.

[00:16:38] Speaker 00:
Ubiquitous is from Jack Wolfskin.

[00:16:40] Speaker 00:
Non-trivial is what the board found.

[00:16:41] Speaker 00:
And I think that difference is important, because the board didn't go as far as this court did in Jack Wolfskin.

[00:16:46] Speaker 00:
So Jack Wolfson certainly had more third-party uses.

[00:16:49] Speaker 01:
And correspondingly, the- Well, it's non-trivial.

[00:16:54] Speaker 01:
Is that sufficient to meet the legal test?

[00:16:58] Speaker 00:
The legal test as to, like, admissibility, or?

[00:17:01] Speaker 01:
No, in terms of the board's evaluation and crediting that based on the numbers.

[00:17:09] Speaker 00:
I think it is sufficient to meet the legal test, inasmuch as the board found

[00:17:15] Speaker 00:
Commercial weakness, just like commercial strength, is on a spectrum.

[00:17:20] Speaker 00:
And the board didn't go as far as this court did in, for example, Jack Wolfskin, in saying that consumers were able to distinguish similar paw prints.

[00:17:28] Speaker 00:
The board simply found that there was used to a non-trivial extent.

[00:17:34] Speaker 00:
And what that meant was that an overlap in the word Eden isn't enough.

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A simple overlap in the word Eden is not enough to show likelihood of confusion.

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And so it's our position.

[00:17:45] Speaker 00:
That is a lesser amount of commercial weakness than Jack Wolfson.

[00:17:48] Speaker 01:
What about some of the concerns raised in the brief, in your friend's brief, about the procedural errors that occurred here?

[00:17:58] Speaker 01:
I mean, the board mistakenly said, I don't remember the exact details of this, but saying that we couldn't admit it or we couldn't credit it because there was no time stamp or no date stamp.

[00:18:09] Speaker 01:
And there was.

[00:18:10] Speaker 01:
The board was wrong about that, right?

[00:18:12] Speaker 00:
So I think that goes to the issue of the family of the marks.

[00:18:15] Speaker 00:
And so there's four broad categories of evidence with respect to the family of marks, the product catalog, the newsletters, the print ads, and the press releases.

[00:18:27] Speaker 00:
So for the newsletters, the board said that there wasn't sufficient information on the face of the newsletters to show the appropriate date.

[00:18:35] Speaker 04:
OK, what's your response to that?

[00:18:37] Speaker 04:
Because that's objectively wrong.

[00:18:39] Speaker 04:
Objectively, unequivocally wrong.

[00:18:41] Speaker 04:
The publication dates and the copyright dates are right there on the documents.

[00:18:45] Speaker 04:
So the board got that completely wrong.

[00:18:47] Speaker 04:
So what's your response?

[00:18:49] Speaker 00:
So our response to that is that the board appellant forfeited the reliance on the newsletter.

[00:18:57] Speaker 00:
So that exhibit includes, I think, 105 pages.

[00:19:01] Speaker 00:
and has 45 newsletters.

[00:19:04] Speaker 00:
They're not contending that all of them are dated or that all of them have sufficient date information.

[00:19:09] Speaker 00:
And it's our position that by not specifically citing the newsletters that had the dates in front of them.

[00:19:15] Speaker 04:
What?

[00:19:15] Speaker 04:
That makes no sense.

[00:19:17] Speaker 04:
They cited particular newsletters to the board.

[00:19:20] Speaker 04:
The board disregarded all of them, saying they had no dates.

[00:19:24] Speaker 04:
Some of them had dates.

[00:19:26] Speaker 04:
So how is it they forfeited that?

[00:19:28] Speaker 04:
Your argument makes no sense.

[00:19:31] Speaker 04:
And I don't even think you even argued that forfeiture on this point either.

[00:19:35] Speaker 00:
So we did argue forfeiture for this.

[00:19:37] Speaker 00:
And for the newsletters, there isn't a specific pin site.

[00:19:40] Speaker 00:
So there's specific pin sites to the product catalog, the print ads, and the press releases.

[00:19:47] Speaker 00:
There is not a specific pin site in their briefing to the board to the newsletters.

[00:19:54] Speaker 00:
And so we think that there's only one site.

[00:19:57] Speaker 04:
So your only argument then is forfeiture.

[00:20:00] Speaker 04:
So if I don't think that they forfeited it the way that they argued it below, what response do you have to the fact that, I mean, do you disagree that these newsletters actually do contain dates, contrary to the board statement?

[00:20:13] Speaker 00:
Because we can walk through them if you want.

[00:20:15] Speaker 00:
Of course.

[00:20:16] Speaker 00:
And certainly, I don't dispute that the ones that they've cited on appeal do include dates.

[00:20:20] Speaker 00:
The board for the newsletters did provide two bases for rejecting that evidence.

[00:20:23] Speaker 00:
One was the date, and the other was the extent of the distribution.

[00:20:26] Speaker 00:
There was no evidence as to how widely those newsletters were distributed.

[00:20:31] Speaker 00:
And then taking the next category of evidence, the print ads.

[00:20:36] Speaker 00:
Those print ads, Your Honor, as you noted, they do include a copyright notice.

[00:20:41] Speaker 00:
But we argued in our brief that the copyright notices are not indications of use.

[00:20:46] Speaker 00:
And they haven't responded to that argument, as far as I know, in the reply brief.

[00:20:49] Speaker 00:
So I position that, in addition to kind

[00:20:52] Speaker 00:
I forward to arguing for many of those.

[00:20:54] Speaker 04:
What about the press releases and the fact that the board incorrectly said the press releases, quote, only reflecting or only reflect the accolades of a single good for each release without demonstrating the opposer as a family of even formative marks?

[00:21:07] Speaker 04:
That's a direct quote from page 815.

[00:21:09] Speaker 04:
And Eden Foods pretty persuasively in its brief on 56-58 and its gray brief at 29 indicate that many of these press releases clearly on their face relate to multiple goods bearing the Eden formative marks.

[00:21:22] Speaker 04:
So it seems like yet another factual error by the board, where it rejects evidence for a reason that's completely inconsistent with the face of the evidence itself.

[00:21:31] Speaker 00:
So I guess I would resist a little bit there.

[00:21:34] Speaker 00:
I think most of the press releases did reflect accolades for a particular good.

[00:21:41] Speaker 00:
So there may have been other references to Eve recipes and a boilerplate at the end.

[00:21:46] Speaker 00:
But the press releases themselves, for the most part... I'm not talking about... I'm talking... Oh, sorry, I'm sorry.

[00:21:50] Speaker 04:
Are you telling me the press releases that they cite on page 56 to 58 of their brief, which I have right in front of me right now, that those press releases do not, in fact, relate to multiple Eden goods?

[00:22:05] Speaker 04:
And how many press releases?

[00:22:06] Speaker 04:
One, two, three, four, five, six, seven, eight, nine, ten.

[00:22:09] Speaker 04:
You're bullet-pointed.

[00:22:11] Speaker 04:
Eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen.

[00:22:15] Speaker 04:
Hold on, I'm not done yet.

[00:22:16] Speaker 04:
Oh yeah, I'm 19.

[00:22:17] Speaker 04:
They cite 19 specific press releases, each one of which, by my own review of the appendix, relate to multiple Eden goods.

[00:22:25] Speaker 04:
But we have a single sentence in the board opinion rejecting all press releases saying each one pertains only to one good.

[00:22:31] Speaker 04:
So what do we do about that mistake the board made?

[00:22:34] Speaker 04:
Because on its face, I don't see how that's not an error.

[00:22:37] Speaker 00:
So two responses to that, Your Honor.

[00:22:39] Speaker 00:
The press releases that Appellum cited to the board, the exemplary citations, they did in fact relate to one.

[00:22:46] Speaker 01:
They did relate to one?

[00:22:49] Speaker 01:
They did relate to one.

[00:22:50] Speaker 01:
So you're saying the board was right about that?

[00:22:52] Speaker 00:
The ones that were specifically cited to them.

[00:22:56] Speaker 00:
And so for the other ones that may have related to multiple goods, I think our fourth argument again applies, that they did not cite the other press releases, specifically in their briefs, to the board.

[00:23:13] Speaker 00:
And I think that even if

[00:23:15] Speaker 00:
even if this court disagrees with the family finding as a matter of substantial... OK, well, my law clerk just says is that you're wrong.

[00:23:22] Speaker 04:
What you're representing to us is wrong.

[00:23:24] Speaker 04:
He says all of those press releases may be discussing an award one by one good, but then goes on in the releases to discuss multiple marks and multiple goods in every one of the press releases.

[00:23:36] Speaker 04:
So is my law clerk wrong?

[00:23:38] Speaker 04:
I mean, he might be.

[00:23:39] Speaker 00:
No, I'm not disagreeing with that at all.

[00:23:42] Speaker 00:
What we're saying is that the board's finding was that the accolades themselves were related to one good.

[00:23:47] Speaker 00:
The board wasn't saying that there wasn't any discussion about both marks.

[00:23:50] Speaker 04:
There's a question about whether Ethan has a family of marks, right, before the board?

[00:23:55] Speaker 04:
And the board disregarded broad swaths of evidence that was, in fact, presented to it on this point.

[00:24:03] Speaker 04:
What is your argument for why it's not prejudicial that the board wrongly said it was OK to disregard all of these 19 press releases, even though they discuss multiple Eden marks, i.e.

[00:24:18] Speaker 04:
tend to support their argument about a family?

[00:24:21] Speaker 04:
Why was it OK to disregard all of those?

[00:24:23] Speaker 04:
And the only explanation given was each release only discusses one mark?

[00:24:28] Speaker 04:
So why is it OK to disregard this evidence

[00:24:32] Speaker 04:
in terms of establishing a family of marks?

[00:24:35] Speaker 00:
Well, I guess I'd reiterate that the board's finding wasn't that there was no mention of any of the marks.

[00:24:40] Speaker 00:
The board's finding was that they relate to an accolade for a single good.

[00:24:45] Speaker 01:
But I think that- Can you give me a page number here for the board?

[00:24:49] Speaker 00:
For the board's finding?

[00:24:50] Speaker 00:
Yeah, please.

[00:24:53] Speaker 04:
I'll help you out.

[00:24:54] Speaker 04:
It's A-15.

[00:24:55] Speaker 04:
A-15.

[00:25:02] Speaker 01:
And it spans to A-16.

[00:25:05] Speaker 01:
I'm sorry?

[00:25:06] Speaker 01:
15 to 16.

[00:25:06] Speaker 01:
OK.

[00:25:07] Speaker 01:
And you're saying that the board rejected it because, I'm not sure.

[00:25:12] Speaker 01:
So just reading from the board's decision.

[00:25:15] Speaker 01:
Likewise.

[00:25:16] Speaker 01:
The press release is reflecting the awards a poser has received for its goods only reflect the accolades for a single good.

[00:25:24] Speaker 04:
And without demonstrating, the poser possesses a family of even formative marks.

[00:25:28] Speaker 04:
Does the mark have to get an accolade to be part of the family?

[00:25:31] Speaker 04:
No, no, we're not.

[00:25:44] Speaker 04:
which shows the family of marks.

[00:25:46] Speaker 04:
This one sentence says, oh, these press releases, we don't have to give any weight to these because they only tout advantages of one good and don't demonstrate a family of goods.

[00:25:55] Speaker 04:
But that's false.

[00:25:56] Speaker 04:
They demonstrate a family of goods because each of those press releases demonstrate multiple marks with the Eden, multiple different goods with multiple different Eden marks.

[00:26:05] Speaker 04:
So how is that not all erroneous?

[00:26:08] Speaker 00:
I don't think the board was disregarding the evidence.

[00:26:13] Speaker 00:
still considered the face of the evidence before it and found it not persuasive on its face to show ownership of the family of Marx.

[00:26:18] Speaker 00:
But I think that even if the court disagrees with, as a matter of substantial evidence, the family of Marx finding, I think that we made this argument in our brief that the family of Marx finding did not prejudice the appellant here.

[00:26:35] Speaker 00:
Because there's no indication that the result would have been any different.

[00:26:39] Speaker 00:
Coming back to where I started, this decision, in our view,

[00:26:43] Speaker 00:
It really hinges on the differences in the marks.

[00:26:46] Speaker 04:
But your view doesn't matter.

[00:26:48] Speaker 04:
What matters is what the board said.

[00:26:49] Speaker 04:
So what did the board say that supports what you're arguing now?

[00:26:53] Speaker 04:
Because you can't come in under Chenery as the government and argue something different than what the board said.

[00:26:58] Speaker 04:
So I think there might be stuff in the board opinion that supports what you're saying.

[00:27:02] Speaker 04:
So don't tell me your view.

[00:27:03] Speaker 04:
Tell me what the board said that indicates that.

[00:27:06] Speaker 00:
So on appendix 32, the board sets out its conclusion.

[00:27:16] Speaker 00:
OK, what do you want me to look at?

[00:27:18] Speaker 00:
Next, 32.

[00:27:19] Speaker 00:
First full paragraph, second sentence.

[00:27:21] Speaker 00:
The board says, we find that while opposer and applicant's goods at issue are legally identical in part and would travel in the same overlapping trade channels and would be offered to the same overlapping consumers, we nonetheless conclude that the party's respective marks are sufficiently dissimilar in connotation and overall commercial impression to weigh against the conclusion that confusion was likely.

[00:27:40] Speaker 04:
Well, I mean, she's disputing that.

[00:27:43] Speaker 04:
But say I agree with you that that weighs against.

[00:27:47] Speaker 04:
But what about all the stuff that weighs in favor of?

[00:27:50] Speaker 04:
What do we do with that?

[00:27:51] Speaker 04:
I'm confused.

[00:27:53] Speaker 00:
Your Honor, I see my time has lapsed.

[00:27:56] Speaker 04:
We're going to keep here for a little longer.

[00:27:58] Speaker 00:
Thank you, Your Honor.

[00:28:00] Speaker 00:
So two points in response to that.

[00:28:01] Speaker 00:
Your Honor, none of those other factors.

[00:28:04] Speaker 00:
So what the board is saying here is those factors that favored a likelihood of confusion did not outweigh

[00:28:10] Speaker 00:
could not outweigh the... Where do they say that?

[00:28:13] Speaker 00:
That's how I read the sentence.

[00:28:16] Speaker 00:
That these factors that favored a finding of likelihood of confusion did not outweigh the differences.

[00:28:23] Speaker 04:
Well, it says trade channels and overlapping classes of consumers.

[00:28:28] Speaker 04:
It credited those two things that weighed in favor of the likelihood of confusion.

[00:28:33] Speaker 04:
and said when balancing those two on the scale against the dissimilar marks, dissimilar wins.

[00:28:39] Speaker 04:
And there's no likelihood of confusion.

[00:28:41] Speaker 04:
But what happens if in addition, how do we know for sure if the board would have reached the same conclusion if in addition to on this side of the scale having overlapping trade channels and having classes of consumers, it also had family of marks?

[00:28:56] Speaker 04:
and also had press releases and newsletters, which they did not consider.

[00:29:00] Speaker 04:
Would that tip the scale?

[00:29:02] Speaker 04:
How do we know it wouldn't tip the scale?

[00:29:04] Speaker 00:
So there are two principal benefits to establishing a family of marks.

[00:29:09] Speaker 00:
One is that the differences in goods are given less weight.

[00:29:12] Speaker 00:
And here, the board is finding identical.

[00:29:14] Speaker 00:
So that would not have had an impact.

[00:29:16] Speaker 00:
The other is that the non-common element parts of the marks, the differences there are given less weight.

[00:29:22] Speaker 00:
And again, that would have no impact here because the mark at issue is just eaten.

[00:29:25] Speaker 00:
So both of the benefits you get from establishing a family would not have an impact here.

[00:29:30] Speaker 00:
And I think that my friend would argue that the way the family of marks might have an impact is through commercial strength.

[00:29:36] Speaker 00:
But here, the board is not using commercial strength as a basis for finding a no likelihood of confusion.

[00:29:42] Speaker 00:
The board is comparing the marks without that reference.

[00:29:46] Speaker 04:
Could the commercial strength argument ever go in favor of no likelihood of confusion?

[00:29:59] Speaker 00:
I think it could.

[00:30:01] Speaker 00:
So theoretically, you could expand the scope of protection if you were to find a mark more commercially strong.

[00:30:08] Speaker 00:
But I think our position on that point is that they haven't shown that whether you look at it as a family or you look at each individual mark, that the commercial strength evidence is any stronger in either way.

[00:30:23] Speaker 00:
So the board found four deficiencies with respect to commercial strength.

[00:30:28] Speaker 00:
No explanation on ad spend, no explanation on revenues, no discussion of the... That's okay.

[00:30:40] Speaker 04:
I think we have your argument.

[00:30:42] Speaker 04:
Thank you.

[00:30:42] Speaker 04:
Let's have the rebuttal time for Ms.

[00:30:50] Speaker 04:
Kozak.

[00:30:54] Speaker 03:
Your honor, I'd like to start out.

[00:30:56] Speaker 03:
I have to vehemently disagree with my friend that the commercial strength of the family of Marx would not have an impact here.

[00:31:05] Speaker 03:
First of all, the evidence of the commercial strength of the Eden family of Marx is copious.

[00:31:10] Speaker 04:
Well, the problem is we have what looks like a fact finding by the board at footnote 34, page 17.

[00:31:15] Speaker 04:
And that fact finding says, even if the opposer were to establish a family of formative Marx, we find

[00:31:21] Speaker 04:
the structure of opposers marks, the term Eden followed by the generic descriptor, quite dissimilar from Adam and Eden formulations.

[00:31:29] Speaker 04:
So we have an alternate fact finding.

[00:31:32] Speaker 04:
The board doesn't always do this, but I like it when they do because that way we know exactly what they would have found as a matter of fact if they didn't get the family of marks question correct.

[00:31:41] Speaker 04:
So what do you do with that?

[00:31:43] Speaker 03:
That footnote, Your Honor, elevates similarity and only a component of similarity being the structure of marks.

[00:31:49] Speaker 03:
beyond above all of their considerations.

[00:31:52] Speaker 03:
Nowhere in their decision did the board take the time to scrutinize the evidence of the strength of the family of marks, because they did not find the family of marks ultimately, and so they did not go through that exercise.

[00:32:04] Speaker 03:
But on no less than four occasions in their paper talk about how the commercial strength that they perceived with respect to the supplement marks

[00:32:13] Speaker 03:
impacted the ultimate conclusion in that it narrowed the scope of exclusive rights to which Eden Foods was entitled, such that the dissimilarities in the Marx outweigh the similarities.

[00:32:27] Speaker 03:
So my friend here has cited the board's ultimate conclusion.

[00:32:32] Speaker 03:
But beyond that, it talks about how the weakness of the Marx buttressed its decision.

[00:32:38] Speaker 03:
And not only that, before it even talked about similarity,

[00:32:41] Speaker 03:
It addressed the weakness because it expressly stated that similarity was influenced by the scope of rights that Amar was entitled to.

[00:32:50] Speaker 03:
And let's see.

[00:32:55] Speaker 03:
When discussing similarity again in the section,

[00:32:59] Speaker 03:
on similarity, its conclusion, again, was expressly based in part on.

[00:33:04] Speaker 04:
The problem is the word buttress means strengthened.

[00:33:07] Speaker 04:
And so they've already made a holding before that.

[00:33:11] Speaker 04:
Then they say, our conclusion is buttressed by the commercial weakness of the mark.

[00:33:16] Speaker 04:
So that goes to magnitude, but not direction.

[00:33:23] Speaker 04:
meaning they've already made a fact-finding.

[00:33:26] Speaker 04:
And then they say, we've made this fact-finding, but that fact-finding is even stronger when you consider strength.

[00:33:30] Speaker 04:
So I don't think the problem is, even if they got the buttressing part wrong, it doesn't change their underlying fact-finding.

[00:33:37] Speaker 04:
And that's what they indicated in that footnote I read to you.

[00:33:41] Speaker 03:
Two things, Your Honor.

[00:33:42] Speaker 03:
I think that while the language buttressing does, there's an ambiguity there, and it does suggest, in addition to, rather than the basis of,

[00:33:52] Speaker 03:
It doesn't change the fact that they set out by defining what they believe was the strength of the mark before even analyzing similarity because they acknowledged that the two were intertwined.

[00:34:05] Speaker 03:
That is the first issue.

[00:34:06] Speaker 03:
The second issue is that because of the erroneous finding on the family of marks, they didn't even get to consider the commercial renown associated with the eating foods mark.

[00:34:17] Speaker 03:
So on that issue alone, there should be remand to consider

[00:34:21] Speaker 03:
the strength associated with it, and whether it would implicate the similarity.

[00:34:27] Speaker 03:
OK.

[00:34:27] Speaker 03:
Thank both counsels.

[00:34:28] Speaker 03:
This case is taken under submission.