[00:00:00] Speaker 02:
Our first case for argument today here at Austin University is 24-1118 Inray Bayou Grand Coffee Roasting Company.

[00:00:13] Speaker 02:
Counsel, how do I pronounce your name?

[00:00:14] Speaker 01:
Andre Litvin.

[00:00:15] Speaker 02:
Mr. Litvin, please proceed.

[00:00:19] Speaker 01:
May it please the court, Andre Litvin, representing the Appellant Bayou Grande Coffee Roasting Company.

[00:00:26] Speaker 01:
The ultimate issue in this case is whether BIOS trademark, CAHPA, for coffee shops and cafes is eligible for registration on the primary register.

[00:00:36] Speaker 01:
The evidence in the record provides a straightforward answer to this question.

[00:00:41] Speaker 01:
The evidence in the record shows that there is a Central Asian drink made with green tea and spices called CAHPA.

[00:00:51] Speaker 01:
The record also shows

[00:00:53] Speaker 01:
that there's no evidence of any American coffee shop or cafe, including my clients ever serving this drink.

[00:01:01] Speaker 02:
Okay, so we evaluate or review this case as the trademark office did from the standpoint of who the reasonable person, the ordinary consumer who

[00:01:11] Speaker 02:
is the vantage point from which we evaluate whether this is generic or suggestive or descriptive.

[00:01:18] Speaker 02:
Who?

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From whose vantage point?

[00:01:20] Speaker 01:
From an ordinary consumer.

[00:01:22] Speaker 02:
An ordinary consumer.

[00:01:23] Speaker 02:
So someone who would go to coffee shops or cafe shops.

[00:01:27] Speaker 01:
Yes, Your Honor.

[00:01:27] Speaker 02:
OK, so that basically is all of us, right?

[00:01:29] Speaker 01:
Absolutely.

[00:01:30] Speaker 02:
OK, so pretty much anybody here is somebody from whose vantage point you would look at this.

[00:01:35] Speaker 01:
Absolutely, yes.

[00:01:36] Speaker 02:
I had never heard this word before, ever.

[00:01:39] Speaker 02:
Like is it, I mean I guess apparently these coffee shops are mainly in like Florida and the South United States, is that right?

[00:01:46] Speaker 01:
In Texas too now.

[00:01:47] Speaker 02:
Texas, okay.

[00:01:48] Speaker 02:
But I for one had never heard this word.

[00:01:51] Speaker 02:
So what does it mean for a trademark to be determined to be generic?

[00:01:56] Speaker 01:
So a trademark is generic if it identifies a type of a genus.

[00:02:03] Speaker 01:
So if it's a generic name for a genus.

[00:02:05] Speaker 01:
So in the context of coffee shop,

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a term coffee shop would be generic for a coffee shop.

[00:02:09] Speaker 02:
Give me a couple of examples of other things that are generic trademarks.

[00:02:13] Speaker 01:
Apple for fruit, apple.

[00:02:16] Speaker 02:
But not apple for computers.

[00:02:17] Speaker 01:
But not for computers.

[00:02:19] Speaker 01:
It becomes arbitrary because apple has no connection to computers, therefore it becomes arbitrary, which is one of the... Just to confirm, in this case, the board found that kawa is generic for coffee shop.

[00:02:33] Speaker 01:
Yes.

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and merely descriptive as an alternative.

[00:02:36] Speaker 00:
Merely describing a coffee shop.

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And the reason why the board reached this clearly erroneous conclusion is because this conclusion is not based on the evidence, but rather on a syllogistic policy.

[00:02:51] Speaker 03:
Would coffee be generic for a coffee shop?

[00:02:54] Speaker 01:
Absolutely, because it's a key aspect.

[00:02:56] Speaker 03:
Would tea be generic for a coffee shop?

[00:02:58] Speaker 01:
Yes, Your Honor, it would be.

[00:03:00] Speaker 03:
What about green tea?

[00:03:01] Speaker 01:
Yes, Your Honor, I would say so.

[00:03:04] Speaker 03:
So here's my problem.

[00:03:06] Speaker 03:
I mean, I understand where you're coming from.

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I have also never seen this word.

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I went to a coffee shop this morning that sold tons of different varietals of tea, and it did not sell this one.

[00:03:15] Speaker 03:
But when you were responding to the examiner, you put in a ton of evidence that suggested that an ordinary consumer would know that kawa, an ordinary relevant consumer of the product, would know that kawa is green tea.

[00:03:30] Speaker 03:
Didn't you?

[00:03:31] Speaker 01:
Not a green tea.

[00:03:32] Speaker 01:
So a kava is a specific drink.

[00:03:35] Speaker 03:
I think your evidence goes beyond that.

[00:03:39] Speaker 03:
It goes to it's a green tea drink.

[00:03:41] Speaker 01:
Yes, it's a drink that's made with green tea as one ingredient and then it has these fragrant spices such as saffron, cardamom.

[00:03:49] Speaker 03:
Comparable to chai in some ways.

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Tea with other things.

[00:03:53] Speaker 01:
Yes, I've never had the drink myself, but it sounds like it would be comparable to chai.

[00:03:58] Speaker 03:
Yeah.

[00:03:58] Speaker 03:
You know, since apparently it's not sold anywhere, none of us have probably had this drink.

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Although maybe you can buy it online and in stores, I think, if it's not sold in coffee and tea shops.

[00:04:10] Speaker 03:
But why is it that your problem is you have put in evidence showing that an ordinary consumer would understand kawa to be a specific type of green tea drink.

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And if it is, then that's something that everybody agrees is sold in coffee shops, green tea drinks.

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Then that makes the board's conclusion a substantial evidence one, doesn't it?

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Because you put in the evidence showing that a relevant consumer, even though it baffles me that why you put that in.

[00:04:43] Speaker 03:
Well, I shouldn't say that.

[00:04:44] Speaker 03:
You're putting it in because the examiner got it wrong and was trying to say kawa is coffee, which it's not.

[00:04:51] Speaker 03:
If that's the case, if a relevant consumer would understand this to be a green tea drink, which is something that's sold in

[00:05:00] Speaker 03:
coffee shops, you're not allowed to get a trademark on coffee.

[00:05:04] Speaker 03:
You're not allowed, presumably, to get a trademark on chai or green tea or other kinds of tea or coffee drinks, lattes, whatever.

[00:05:13] Speaker 03:
Why is it, once you put in evidence showing that a reasonable or the ordinary consumer would understand this, isn't that the end of the game for you?

[00:05:21] Speaker 01:
It is not, Your Honor, because what we are evaluating is the connection between the word coffee and coffee shops and cafes.

[00:05:32] Speaker 03:
I understand, but your logic would seem to also suggest that you could name it a coffee shop chai, because it's a specific form of a tea drink.

[00:05:43] Speaker 01:
Your Honor, there would be evidence in the record of coffee shops and cafes serving chai, which... Is it the serving that's important to you?

[00:05:51] Speaker 01:
it's the connection in the consumer's mind.

[00:05:54] Speaker 01:
So for genericness, which the USPTO does not even try to defend that refusal on this appeal,

[00:06:02] Speaker 01:
The word either has to refer to the genus of coffee shops and cafes, but there's no evidence.

[00:06:11] Speaker 01:
It is undisputed that no one has ever used the word kakwa to refer to coffee shops in a generic sense.

[00:06:17] Speaker 03:
It's only used to refer... Has anybody ever used the word chai to refer to a coffee shop in a normal sense?

[00:06:24] Speaker 03:
Rather than just being, I'm not, I'm a little unclear where your connection is that it has to be served rather than it's some, a reasonable consumer might understand that it's the type of product that might be served.

[00:06:37] Speaker 01:
Sure, so we look, we look at the word coughbuffin.

[00:06:40] Speaker 01:
So when we look at the word coughbuffin,

[00:06:42] Speaker 01:
It does not identify a key aspect of coffee shops and cafes because this specific drink is not served in coffee shops and cafes, therefore it does not identify a key aspect of coffee shops and cafes.

[00:06:54] Speaker 02:
So is your argument kind of similar to, if I name my coffee shop, Whiskey Sour, but we don't actually sell alcohol or whiskey?

[00:07:01] Speaker 02:
Like, that would not be merely descriptive of a coffee shop because, in fact, what I've named my store isn't even sold in my store or stores like my store.

[00:07:10] Speaker 01:
Your Honor, absolutely, that's... Is that the argument?

[00:07:13] Speaker 01:
That is exactly the argument.

[00:07:14] Speaker 01:
And in that relation, it would be almost as arbitrary as using Apple for electronics because this drink is not served.

[00:07:24] Speaker 01:
And then for descriptiveness, the analysis is

[00:07:30] Speaker 01:
whether the trademark describes an aspect of applicant's services.

[00:07:37] Speaker 01:
Our client has never served coffee in their coffee shops.

[00:07:41] Speaker 01:
That immediately requires reversal of the descriptiveness refusal because that word does not describe an aspect of my client's services.

[00:07:53] Speaker 02:
Well, is it just your client services or the group of services that you're seeking the mark for?

[00:08:00] Speaker 02:
meaning suppose your client decides not to sell decaf coffee, but every other coffee shop in America sells decaf coffee and you're seeking a mark that includes

[00:08:12] Speaker 02:
you know, the word decaf coffee for your coffee shop.

[00:08:14] Speaker 02:
You can't evade, could you, you know, descriptiveness just by virtue of saying, well, my client has chosen not to sell this particular type of coffee, even though most coffee shops in America do.

[00:08:26] Speaker 01:
Excellent question, Your Honor.

[00:08:27] Speaker 01:
So that would take us into the realm of misdescriptiveness.

[00:08:31] Speaker 01:
So if the trademark identifies

[00:08:35] Speaker 01:
or describes a quality or characteristic of services, that the services plausibly have, for example, decaf coffee, but they do not, then the trademark would not be merely descriptive, it would be misdescriptive, which is what the SPTO for the first time insinuated in a footnote in their appellate brief, but that was not raised by the board.

[00:08:57] Speaker 01:
And with respect to misdescription as a reason why the board never rejected this trademark as being misdescriptive is because in order to prove misdescription as a trademark still needs to describe a significant aspect of the genus.

[00:09:10] Speaker 01:
So with respect to coffee shops, with your example, decaf coffee absolutely describes a significant aspect of the genus.

[00:09:20] Speaker 01:
But there is no evidence that Cajua describes a significant aspect of the genus.

[00:09:25] Speaker 01:
And then to take it one step further, in order to make a refusal as merely misdescriptive, the ASPTO would have the burden of showing that that misdescription, alleged misdescription, would be believable.

[00:09:37] Speaker 02:
And in order to do that... You're into your rebuttal time.

[00:09:40] Speaker 02:
You can keep going or do you want to save some?

[00:09:42] Speaker 01:
I'll save my time.

[00:09:42] Speaker 02:
Thank you.

[00:09:43] Speaker 02:
Very good.

[00:09:57] Speaker 04:
Good morning and may it please the court, Michael Chahone on behalf of the USPTO director.

[00:10:02] Speaker 04:
The board's decision should be affirmed because substantial evidence that Bayou, for the most part put into the record, supports the finding that Kawa, the known name of a tea beverage, is highly descriptive of the services Bayou identified in its application, cafes and coffee shops.

[00:10:21] Speaker 04:
services that involve the offering of tea beverages.

[00:10:23] Speaker 00:
How do you deal with the position that it's undisputed that there's no coffee shops or cafes that provide kawa as a beverage?

[00:10:34] Speaker 00:
That's in stark contrast to Enre Cardua, for example, which involved the Mark Churrasco.

[00:10:42] Speaker 04:
Yes, Your Honor.

[00:10:43] Speaker 04:
So Cordua was a case in the context of genericness.

[00:10:46] Speaker 04:
We've addressed the board's refusal for mere descriptiveness.

[00:10:51] Speaker 04:
And even without any evidence of a cafe that serves kawa, the evidence in the record still supports the board's findings because the evidence shows that consumers know kawa as a type of tea beverage.

[00:11:07] Speaker 00:
Maybe not one that's the only thing.

[00:11:09] Speaker 00:
When I look through the list, do I know correctly that the evidence that you're relying on here is the Google search results that the applicant provided?

[00:11:18] Speaker 04:
There was additional evidence, the evidence showing Kawa products being sold.

[00:11:27] Speaker 02:
Which page in the appendix?

[00:11:32] Speaker 04:
The evidence is, let's see.

[00:11:36] Speaker 04:
It's referenced in our brief.

[00:11:38] Speaker 04:
So there is recipes.

[00:11:43] Speaker 02:
What page of the appendix?

[00:11:44] Speaker 04:
Sure.

[00:11:55] Speaker 04:
If you look on our brief, this is all the appendix numbers.

[00:12:02] Speaker 04:
Just direct me to a page of the appendix.

[00:12:03] Speaker 04:
Yes, please give me a second.

[00:12:05] Speaker 04:
It starts on page 6.

[00:12:07] Speaker 04:
So there is an article that's appendix pages 154 to 168, an article that's pages 201 to 222.

[00:12:17] Speaker 03:
Which of them shows it was being sold?

[00:12:19] Speaker 03:
I understand there's recipes and references and everything describing what it is.

[00:12:25] Speaker 03:
But which of them you said just now that your evidence shows it was sold?

[00:12:33] Speaker 04:
OK, it's sold not by a cafe or coffee shop.

[00:12:36] Speaker 04:
The Akawa product is available for purchase on Amazon and other places.

[00:12:40] Speaker 04:
OK.

[00:12:40] Speaker 04:
But the evidence of a breed.

[00:12:42] Speaker 03:
You agree that there is no evidence that it was sold in a cafe or coffee shop.

[00:12:46] Speaker 03:
Yes, that's a tea shop.

[00:12:47] Speaker 03:
That's right, yes.

[00:12:48] Speaker 03:
Isn't that a problem?

[00:12:50] Speaker 03:
I mean, this is not green tea.

[00:12:53] Speaker 03:
It's a really specialized form of green tea that apparently comes from like three different countries in the world that I think most people here, until they showed up for this case, haven't heard of it.

[00:13:05] Speaker 04:
Right, but there's no dispute that consumers, the relevant consumers, cafe consumers, understand kawa as the name of a tea beverage.

[00:13:15] Speaker 02:
But you say there's no dispute.

[00:13:17] Speaker 02:
We've got a room full of regular consumers.

[00:13:19] Speaker 02:
I mean, look, I'm just going to be really awful to you right now.

[00:13:22] Speaker 02:
OK.

[00:13:22] Speaker 02:
Had you ever heard of Kawhi before you picked up this case?

[00:13:25] Speaker 04:
Honestly, no.

[00:13:27] Speaker 02:
I know, right?

[00:13:27] Speaker 02:
Thank you for being honest.

[00:13:29] Speaker 02:
Thank you.

[00:13:29] Speaker 04:
But the body's position has always- Do you drink coffee or tea ever?

[00:13:34] Speaker 02:
I do drink quite a bit.

[00:13:38] Speaker 03:
Here's the thing.

[00:13:39] Speaker 03:
I know they put in all this evidence, but part of it is the posture of this case, which is the examiner got it wrong by trying to translate Kawa with a K as Kawa with a Q, which apparently in Arabic means coffee.

[00:13:53] Speaker 03:
If they were trying to trademark Kawa with the Q, they would probably be in trouble because of the translation doctrines.

[00:14:03] Speaker 03:
So they were trying to get over that to show, oh no, we're not trying to use the Arabic word for coffee, which I think you probably couldn't trademark.

[00:14:10] Speaker 03:
for a coffee shop.

[00:14:12] Speaker 03:
We're using this specialized green tea beverage that nobody has ever heard of, and the reason they're putting this evidence in is to show that it means something different than kala with a Q. But the evidence they've put in shows that consumers know kala as a type of tea beverage.

[00:14:29] Speaker 02:
I thought it was like suggested that this stuff came from Hawaii.

[00:14:32] Speaker 02:
That's what I had in my brain when I saw this.

[00:14:33] Speaker 02:
I'm like, oh, they're being suggested.

[00:14:35] Speaker 02:
They're saying, oh, our

[00:14:37] Speaker 02:
Coffee beans come from Hawaii or whatever.

[00:14:39] Speaker 02:
That's where my head went.

[00:14:41] Speaker 04:
But the question is, is there substantial evidence in the record for the board's finding?

[00:14:45] Speaker 04:
And there is, because the evidence shows that consumers know kawa as a type of tea beverage.

[00:14:51] Speaker 03:
I'm a little troubled by this, because you say that consumers, the relevant market is people who go to coffee shops, not people who do Google searches, to find obscure tea beverages online.

[00:15:06] Speaker 03:
But if you find anything online, how is that evidence of what the relevant consumer here knows?

[00:15:15] Speaker 04:
I think Judge Moore mentioned and explained that everybody is a cafe consumer, potentially.

[00:15:22] Speaker 03:
I don't think she wanted to help you with that comment.

[00:15:26] Speaker 03:
But the point is that Bayou's position at the office... Can you connect anything in all that evidence to an actual consumer of coffee or tea at a coffee shop?

[00:15:38] Speaker 04:
No, but that's not needed because of what the evidence shows.

[00:15:41] Speaker 04:
It shows that kawa is a type of tea beverage.

[00:15:44] Speaker 00:
So your view is that because kawa is a type of tea beverage, it's as if it was chai.

[00:15:51] Speaker 04:
There's more than that.

[00:15:52] Speaker 04:
Tea beverages are standard offerings of cafes.

[00:15:54] Speaker 04:
There's evidence in the record.

[00:15:56] Speaker 04:
dictionary definitions, cafe menus, that show that tea beverages are standard offerings.

[00:16:02] Speaker 04:
When consumers see... But the word isn't tea.

[00:16:05] Speaker 04:
It's kawa.

[00:16:06] Speaker 04:
It's not.

[00:16:06] Speaker 04:
It's a type of tea beverage.

[00:16:07] Speaker 04:
When consumers see kawa used for cafes, a term that they know is a type of tea beverage... You see, they know.

[00:16:16] Speaker 02:
See, here's the problem.

[00:16:17] Speaker 02:
Isn't the ordinary consumer, isn't that the test?

[00:16:20] Speaker 02:
The ordinary consumer.

[00:16:22] Speaker 02:
Not, I mean,

[00:16:24] Speaker 02:
Like Judge Hu says, you can find anything on Google.

[00:16:26] Speaker 02:
And I have no doubt that this cow lot is a type of tea in some Middle Eastern or Southeast Asian region.

[00:16:32] Speaker 02:
I don't even know where.

[00:16:33] Speaker 02:
But that doesn't mean it's the ordinary consumer in a US coffee or cafe shop, right?

[00:16:40] Speaker 02:
Because we're the ordinary consumers, all of us, no?

[00:16:44] Speaker 00:
Yes.

[00:16:44] Speaker 02:
It's not just a consumer.

[00:16:45] Speaker 02:
It's true.

[00:16:46] Speaker 02:
Maybe there are consumers, especially people who maybe descend from particular regions in the world, that are familiar with this tea.

[00:16:53] Speaker 02:
But are they the ordinary consumer of a cafe or a tea shop?

[00:16:58] Speaker 04:
The evidence shows that the public knows Kawa as a type of tea beverage in the Google searches, in the Amazon.

[00:17:04] Speaker 04:
Google knows this.

[00:17:06] Speaker 02:
Google knows it.

[00:17:07] Speaker 02:
But does the ordinary consumer know it?

[00:17:09] Speaker 03:
Hypothetically, let's say you have a really specific coffee blender or something from Indonesia.

[00:17:19] Speaker 03:
And it's only sold in Indonesia.

[00:17:21] Speaker 03:
Indonesia, it's only grown in Indonesia, it has a specific varietal name.

[00:17:27] Speaker 03:
And somebody here tries to trademark that.

[00:17:30] Speaker 03:
And the evidence shows that you can Google it and find out, oh, this is a varietal of coffee.

[00:17:38] Speaker 03:
But nobody here knows what it is without Google.

[00:17:42] Speaker 03:
Nobody has ever heard of it.

[00:17:44] Speaker 03:
Would that be generic?

[00:17:48] Speaker 03:
Because under your reasoning, it sounds like it is.

[00:17:50] Speaker 03:
The mere fact that that could be identified through a Google search as a coffee blend would mean it was generic for coffee shops.

[00:17:58] Speaker 03:
But that can't be the case, you would agree.

[00:18:01] Speaker 04:
The question is whether consumers would understand it as descriptive of the services.

[00:18:06] Speaker 03:
if the evidence supports a finding that... No, but see you're leaping over the fact that the ordinary consumer has to understand it as a tea beverage.

[00:18:17] Speaker 04:
Right, and the evidence of record shows that they do, and that's the position by... What's the evidence?

[00:18:22] Speaker 04:
The evidence that we've been discussing, the articles, the

[00:18:27] Speaker 04:
Amazon listing showing this product available.

[00:18:30] Speaker 04:
They show that consumers have been exposed.

[00:18:32] Speaker 00:
The products that are available are like tea bags that you could buy from Amazon.

[00:18:36] Speaker 04:
That was one of the examples.

[00:18:37] Speaker 00:
And then there is also various recipes that somebody could use to make their own Kahwah tea, right?

[00:18:45] Speaker 04:
Mm-hmm.

[00:18:45] Speaker 04:
That's right.

[00:18:46] Speaker 00:
No evidence at all of any any place where someone could go and buy this drink.

[00:18:52] Speaker 00:
That's right.

[00:18:52] Speaker 00:
Already prepared at some sort of form of restaurant.

[00:18:55] Speaker 04:
That's right.

[00:18:58] Speaker 04:
The evidence shows that kawa is a type of tea beverage that consumers know that tea beverages are standard offerings in cafes and therefore it shows that there's no evidence that kawa tea is a standard offering.

[00:19:10] Speaker 04:
There is no evidence that kawa tea is a standard offering but there's evidence that tea beverages of this ilk of this type are standard beverages.

[00:19:18] Speaker 03:
So you didn't answer my last hypothetical but it sounds like your argument is that

[00:19:22] Speaker 03:
that if we have this single origin coffee from Indonesia that's not sold here, that it's not grown here, but it's available on the internet if you want to ship it in from Indonesia, because it's a type of coffee and coffee sold in coffee shops that that would be generic, even if it's a word nobody had ever heard before.

[00:19:50] Speaker 04:
So I understand the concern here.

[00:19:53] Speaker 03:
Well, tell me why that hypothetical, which, I mean, clearly none of us are going to agree that that should be generic, why that hypothetical is distinct from this case.

[00:20:02] Speaker 04:
Because Bayou has taken the position and put evidence given.

[00:20:06] Speaker 03:
I know.

[00:20:06] Speaker 03:
They argued this badly.

[00:20:07] Speaker 03:
That's their fault.

[00:20:08] Speaker 03:
But you still have to defend your case.

[00:20:10] Speaker 04:
But they made a record.

[00:20:11] Speaker 04:
And the record shows that kawa is known as a type of tea beverage, and that that's a standard offering.

[00:20:16] Speaker 04:
in cafes.

[00:20:17] Speaker 04:
That's our position, Your Honor.

[00:20:19] Speaker 02:
It's also the... Do you agree, though, that it is the vantage point from which descriptiveness is measured is the average purchaser?

[00:20:30] Speaker 02:
Not the average purchaser of co-op, not the average purchaser even of tea, but the average purchaser within the description that the goods

[00:20:39] Speaker 02:
are going to cover, which is coffee and cafe shops.

[00:20:42] Speaker 04:
Yes, that's right.

[00:20:42] Speaker 04:
It's the customer of the services edition.

[00:20:49] Speaker 04:
Right, OK.

[00:20:49] Speaker 04:
But there's also the services that Bayou identified in its application, which is the board noted on page 22.

[00:20:56] Speaker 04:
Our service is broadly identified as CAWA.

[00:20:58] Speaker 04:
So the services are unrestricted.

[00:21:00] Speaker 04:
They cover all cafes, regardless of the cafe's particular offerings.

[00:21:05] Speaker 04:
So they cover cafes that offer Kahwa and cafes that don't.

[00:21:08] Speaker 02:
But we don't have any in the US that offer Kahwa, according to this program.

[00:21:11] Speaker 02:
We don't.

[00:21:11] Speaker 04:
But if this is our quarter register, Kahwa Bayou would be free at that moment to start offering Kahwa in its cafes.

[00:21:19] Speaker 04:
And that use would be covered by the registration.

[00:21:22] Speaker 04:
So the full scope of the identified services must be taken into account.

[00:21:29] Speaker 02:
You've made an argument on page 30 of your brief, which picks up on something the board held at page 19.

[00:21:34] Speaker 02:
And it kind of puzzled me.

[00:21:36] Speaker 02:
You say on page 30 of your brief, as the board explained, Bayou would have enforceable rights against any cafe that serves kawa in the future.

[00:21:48] Speaker 02:
How is that true?

[00:21:49] Speaker 02:
And you say it's undesirable.

[00:21:52] Speaker 02:
You suggest, and unfortunately the board found,

[00:21:57] Speaker 02:
that somehow if we allow Bayou to register this mark, then it could somehow go after people that even attempt to sell that tea in the future.

[00:22:07] Speaker 02:
How is that true?

[00:22:08] Speaker 04:
It's when the term is used in a way as a mark that's confusing to Bayou's market would be an issue.

[00:22:17] Speaker 02:
It wouldn't just be... So you agree, contrary to what the board found, because the board made a finding that made no sense to me, contrary to my understanding of the board's finding,

[00:22:26] Speaker 02:
You agree that a future coffee shop would be free to sell kawa, and if they sold kawa as one of their products, that wouldn't be prohibited somehow by this registrant.

[00:22:37] Speaker 04:
It would be in terms of how they're using the term for their services and whether that creates... Well, they can't name themselves Kawa, but they can sell it, right?

[00:22:46] Speaker 03:
Yeah.

[00:22:46] Speaker 03:
Dunkin' Donuts wants to sell Kawa.

[00:22:48] Speaker 03:
It's free to do it even with this registration.

[00:22:50] Speaker 03:
Yes, Your Honor, that's right.

[00:22:52] Speaker 04:
Okay.

[00:22:53] Speaker 04:
So that's our position, Your Honors.

[00:22:54] Speaker 04:
If the court disagrees, then the...

[00:22:58] Speaker 04:
The proper course would be to vacate and remand for the board to address the refusal that wasn't reached.

[00:23:04] Speaker 02:
What refusal that wasn't reached?

[00:23:05] Speaker 04:
There was a third refusal for a failure to submit a translation statement.

[00:23:10] Speaker 04:
It was unnecessary for the board to reach.

[00:23:12] Speaker 04:
So that would need to be resolved in the first instance by the board.

[00:23:16] Speaker 02:
Can you explain that to me?

[00:23:18] Speaker 04:
That's related to the coffee issue.

[00:23:21] Speaker 04:
And there was a requirement.

[00:23:25] Speaker 04:
for Bayou to submit a translation statement of the mark, and it didn't.

[00:23:31] Speaker 04:
So there's a refusal for a failure to submit that translation statement.

[00:23:35] Speaker 04:
So there's issues surrounding that refusal that would need to be resolved.

[00:23:41] Speaker 02:
How could you now argue, after your arguments to this court, how could you go back and say, now they can't register Kawa?

[00:23:52] Speaker 02:
because it amounts to an Arabic translation of the word coffee.

[00:23:56] Speaker 02:
How could that still be on the table after this?

[00:24:00] Speaker 04:
Those issues came up in examination and they weren't resolved by the board because they found it unnecessary to reach them because of the meaning that Bayou had established as a type of green tea.

[00:24:15] Speaker 02:
So you still think that this mark could arguably be rejected as a

[00:24:21] Speaker 02:
foreign language translation of the Arabic word coffee, which is spelled with a Q?

[00:24:26] Speaker 04:
All I was saying, Your Honor, is that there's a refusal.

[00:24:29] Speaker 02:
But is that the issue that you think remains open?

[00:24:32] Speaker 04:
Well, it's the issue of whether the value is required to submit this statement, the translation statement.

[00:24:40] Speaker 04:
Thank you, Your Honors.

[00:24:51] Speaker 01:
May I please accord what my colleague just said is extremely troubling to me and it illustrates how this case has been a case of moving target all along and the problem with remanding this case back is that USPTO wants to keep continuing refusing my

[00:25:12] Speaker 02:
Clients right to have their trademark register on but but he suggested that there was some sort of procedural footfall by your client ie You had an obligation to submit a some sort of foreign language translation I don't know the details of it and that you hadn't yet complied with that.

[00:25:30] Speaker 02:
Is that correct?

[00:25:31] Speaker 01:
That is what these PTO demanded and we provided volumes of evidence that the

[00:25:37] Speaker 01:
CAHWA has no warrant meaning, therefore translation requirement is not necessary.

[00:25:46] Speaker 01:
And for that reason, I would strongly urge the court to direct this PTO to issue this trademark and not remand it back to restart the whole cycle of us arguing what we spent years of arguing with the examiner about whether this term has any meaning

[00:26:03] Speaker 01:
in a foreign language all over again.

[00:26:06] Speaker 01:
And in fact, the entire premise of the worst decision and what USPTO has been arguing on appeal is that CAVA has established alternative English language, meaning which is precisely why we put this evidence in the record, because that disqualifies

[00:26:19] Speaker 01:
the doctrine of foreign equivalence outright.

[00:26:22] Speaker 01:
And based on their concession, which is the entire premise of this appeal in the board's decision, that consumers are so familiar with this drink and it's well known that this qualifies the doctrine of foreign equivalence and this board's precedent in the increased spirits and continental knowledge.

[00:26:45] Speaker 02:
Anything further?

[00:26:47] Speaker 01:
I just wanted to point out that what my colleague just said is extremely troubling in terms of USPTO took a position that under this Supreme Court makeup case, the USPTO can reject a trademark that is not currently descriptive or generic based on a speculation that it may become such in the future, which is exactly what

[00:27:14] Speaker 01:
my counterpart just said, so I would strongly urge the court to not allow the USPTO to issue these types of requests.

[00:27:23] Speaker 02:
You don't just urge us, you strongly urge us, duly noted.

[00:27:26] Speaker 02:
Okay, counsel, thank you for your argument.

[00:27:28] Speaker 02:
This case is taken under submission.

[00:27:30] Speaker 01:
Thank you, Your Honor.