[00:00:00] Speaker 02:
Our next case is Indray R.S.

[00:00:03] Speaker 02:
Littman Brewing Company LLC.

[00:01:05] Speaker 02:
You reserve five minutes for rebuttal, correct?

[00:01:11] Speaker 02:
Correct, Your Honor.

[00:01:12] Speaker 02:
All right.

[00:01:12] Speaker 02:
You may start, please.

[00:01:16] Speaker 01:
Good morning, Your Honors.

[00:01:16] Speaker 01:
From the inception of this appeal, we've asked the Trademark Office how the ruling in this case doesn't implicate a per se finding that two bond factor number two in every dispute between a beer mark and a restaurant mark moving forward is established.

[00:01:36] Speaker 01:
The evidence that the board has relied on can be cut and pasted into every rejection moving forward, where there's a beer and a restaurant mart moving forward.

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And we would review that under substantial evidence, right?

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This court's reviewed it under both error as a matter of law and substantial evidence.

[00:01:53] Speaker 02:
No, but when you're talking about shifting evidence around, that's not reviewable by us.

[00:02:01] Speaker 01:
Well, this court has found in many trademark cases that there's not substantial evidence to support a rejection.

[00:02:07] Speaker 01:
But in this case, the law of course is clear.

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There's two legal requirements, of course.

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You've got two paths for the trademark office to reject the mark.

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One is general industry trend evidence.

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And there, this court in Coors and in Jacobs has said that you have to show substantial overlap.

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The other path for the trademark office to reject a trademark is to show something more, which is evidence specific between the applicant and the registrant.

[00:02:37] Speaker 01:
In this case, they did not apply the Coors test, so there is legal error.

[00:02:40] Speaker 01:
This court at 1454, I think it is, of Coors,

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excuse me, 1354 to 1355 says, this court said, we disagree with the court or with the board's legal conclusion.

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This court found as a matter of law that the evidence in Coors was not sufficient.

[00:03:02] Speaker 01:
The evidence in this case that the goods are related, that beer and restaurant services are related, in Coors it was 28 registrations.

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It was 10 articles and one book.

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In this case,

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There's 21 registrations.

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There are nine articles, one book, and 18 websites.

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It's basically the same evidence.

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And we all know, anecdotally, I mean, if you look at Inray Iron Hill, which is 2017, let me back up.

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Coors finds there's 850,000 restaurants in the US.

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Inray Iron Hill, which is the board's decision in 2017, finds that there's over 1 million restaurants in this country.

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On the record before this court, there is evidence that's no different in courts where this court, as a matter of law, disagreed with the board's legal conclusion.

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That's the exact words of this court, disagreed with the legal conclusion.

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They also found there's no substantial evidence.

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On this record, and I think we know this all anecdotally, the restaurant industry in this country is huge.

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The evidence of this record shows there's a small number of brew pubs that might sell beer and restaurant services under the same mark.

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If you had this evidence in a federal district court, in my view, it wouldn't pass the dog.

[00:04:30] Speaker 01:
So there's no substantial evidence, to your point, on the legal review.

[00:04:34] Speaker 01:
There's also errors in the matter of law, because the board didn't even attempt to apply the test, of course.

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So we have both legal error and a failure of substantial evidence in this case.

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And as I said, if this ruling stands, that means if I'm applying for a beer mark or I'm applying for a restaurant mark, and there's something similar or identical out there, every single time, DuPont factor two, under the evidence in this case will be established moving forward.

[00:05:05] Speaker 01:
And think about the policy implications.

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As a trademark owner, you have to police your mark.

[00:05:09] Speaker 01:
It means that there's confusion every single time.

[00:05:13] Speaker 02:
Let's try something different here.

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How would you say the case Coors applies here in this case, and does it help you or hurt you?

[00:05:22] Speaker 01:
It helps us by a lot.

[00:05:24] Speaker 01:
The evidence, Coors reversed the board.

[00:05:27] Speaker 01:
The Coors reversed the board and they found that there wasn't substantial evidence and they disagreed with the legal conclusion of the board because what did Coors find?

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In Coors, the board found that

[00:05:40] Speaker 01:
beer and restaurant services were related under DuPont factor two.

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That's what the board found.

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The Coors court reversed and remanded because they said no, there isn't general evidence of industry overlap, wasn't substantial in Coors.

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They reversed and remanded saying that evidence doesn't qualify.

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It's the identical evidence.

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In this case, there's nothing specific about the applicant in the registrant.

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The applicant in this case is a trademark for chicken scratch for beer only.

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No overlap with restaurant.

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Chicken scratch for the registrant, which is a Dallas restaurant, which is at this point out of business, by the way.

[00:06:20] Speaker 01:
Chicken scratch for the restaurant is not for beer.

[00:06:22] Speaker 01:
There's absolutely no overlap at all.

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Jacobs and Coors require something more.

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That is the legal test.

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They haven't even attempted to show something more on this record.

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Beyond the legal errors and cores on DuPont Factor II, and as this court-founding coach, the same mark can have different commercial impressions for different goods.

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So chicken scratch

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The only evidence of record of what chicken scratch means.

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And under Coach, under Coach, you had the Mark Coach for educational materials.

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And you had the Mark Coach for luxury goods, the Coach handbags.

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And what this court found is, even though it's the identical mark, there's different commercial impressions.

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Coach for educational materials meant tutor or instructor.

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Coach for the luxury goods, this court found either meant a carriage ride, which was reserved for wealthy people, or arbitrary.

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In this particular case, Chicken Scratch absolutely relates to a restaurant that sells only chicken dishes.

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The market itself is for restaurant services.

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The website material which we cited to the court says chicken made from scratch.

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The board pulled the dictionary definition out that said it means bad handwriting.

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And in the old days when we used to all write, we don't even teach writing at schools anymore.

[00:07:58] Speaker 01:
They found a dictionary definition that says chicken scratch means bad handwriting.

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There's no evidence in this record to support

[00:08:05] Speaker 01:
that the registrant was trying to convey the commercial impression to consumers that the restaurant was about bad handwriting.

[00:08:13] Speaker 01:
What does the evidence of record show?

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The only evidence shows that Chicken Scratch, as to the registrant, a restaurant that only sells chicken dishes, meant chicken made from scratch.

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And we're not making that up.

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That's their website.

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They actually say dishes made from scratch.

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They talk about savory ingredients.

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In our case, no one would think that we're trying to say that our clients trying to say beer made from chicken.

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It doesn't make any sense.

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Our client show their specimen.

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It's a chicken pecking at the feet on the ground.

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The beer is made from the same things that chicken eat.

[00:08:49] Speaker 02:
But the test is what the consumers would observe.

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That's the test.

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That is the test.

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What would consumers perceive about the marks?

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No one would think that our

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client's beer is beer made from chicken.

[00:09:03] Speaker 01:
So we have different commercial impressions.

[00:09:06] Speaker 01:
There's no substantial evidence to support the board's findings on DuPont factor one.

[00:09:10] Speaker 01:
This course is reversed and remanded in coach.

[00:09:15] Speaker 01:
We've got cases like Seidel.

[00:09:19] Speaker 01:
Seidel was bottoms up.

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Men's underwear, bottoms up.

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Women's underwear and children's underwear, bottoms up.

[00:09:30] Speaker 01:
Identical marks.

[00:09:32] Speaker 01:
And what the board found in that case was bottoms up for amendment to have a drink.

[00:09:36] Speaker 01:
Guys are kind of robust.

[00:09:39] Speaker 01:
Identical marks.

[00:09:41] Speaker 01:
What they found for women's and children's underwear is obviously it didn't refer to drinking.

[00:09:48] Speaker 01:
It referred to women's and children's underwear at their bottom, right?

[00:09:53] Speaker 01:
We have the Sears case, which is

[00:09:58] Speaker 01:
a crossover.

[00:10:00] Speaker 01:
This is women's underwear and women's sportswear.

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And by the way, in each of these cases, they were sold in the same department stores.

[00:10:08] Speaker 01:
Same mark.

[00:10:10] Speaker 01:
What did they find in crossover?

[00:10:12] Speaker 01:
In crossover, they found that for women's bras, it meant supporting the construction.

[00:10:20] Speaker 01:
Crossover for women's sportswear meant something different.

[00:10:23] Speaker 01:
It referred to

[00:10:25] Speaker 01:
a crossover transitional style for sportswear you have the you have the British Bulldog case player for men's underwear versus men's shoes same word sold in the same stores and the board found that player for

[00:10:46] Speaker 01:
for men's shoes meant like a great athlete.

[00:10:51] Speaker 01:
Player for men's underwear meant something more of a romantic thing.

[00:10:56] Speaker 01:
So we've got all kinds of precedent where the same marks create different commercial impressions.

[00:11:05] Speaker 01:
OK.

[00:11:05] Speaker 01:
If the court has no further questions, I can.

[00:11:06] Speaker 02:
You want to reserve the rest of your time for rebuttal?

[00:11:08] Speaker 02:
Yes, sir.

[00:11:09] Speaker 01:
Thank you.

[00:11:23] Speaker 00:
Thank you.

[00:11:23] Speaker 00:
May it please the court, William Lamarca for the PTO.

[00:11:28] Speaker 00:
First of all, let me clarify something that appellants said.

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They said that the board did not apply the Coors decision.

[00:11:36] Speaker 00:
That's totally false.

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If you look at the board decision, you'll see they spent about 10 pages specifically analyzing the Coors decision, the standards set out in Coors, and why this case is factually different than Coors.

[00:11:50] Speaker 00:
That's what the board's decision is all about, Your Honor.

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And let me explain those differences.

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Yes, here in Coors you did not have identical marks.

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You had similar marks.

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You had Blue Moon Beer and Blue Moon Cafe.

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They were not identical.

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They were stylized with color and drawings and pictures and moons and all types of things.

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And the Coors court specifically pointed out that the differences in the marks had an impact on their analysis.

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Here, the marks are identical.

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They're word marks.

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They're not stylized marks.

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They're just word, textual marks.

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And they're identical in every way.

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As a result, this court has pretty well established that when you do have identical marks, that's a much stronger impact on the likelihood of confusion analysis.

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So that, number one, that's the number one difference.

[00:12:38] Speaker 00:
That affects entire analysis, correct?

[00:12:40] Speaker 00:
Correct, Your Honor.

[00:12:41] Speaker 00:
Because if you read the DuPont factors in the DuPont case, they go through all the factors and they say, when you're using these factors to come with the overall determination, that is a key factor when the marks are identical.

[00:12:52] Speaker 00:
So right off the bat, we've got something that's much stronger than what we had in course.

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Number two, we talk about the strength of the cited mark.

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The cited mark here, I think it's the 467 registration that's cited, which is the identical chicken strike mark.

[00:13:07] Speaker 00:
It's not weak.

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There's no evidence of weakness.

[00:13:10] Speaker 00:
In Coors, the cited registration, the Coors court pointed out there were over 100 restaurants using the words blue moon in one way or another.

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And that had an impact on the weakness of the cited registration.

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We've got a strong cited registration with no evidence of weakness.

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And in Coors, we had it.

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So there's two factors that make this case stronger than the Coors case factually.

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Third, the evidence of relatedness here.

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Appellant says, oh, we really have the same factual record.

[00:13:39] Speaker 00:
It's all the same.

[00:13:41] Speaker 00:
It's not the same.

[00:13:42] Speaker 00:
We've pointed out in our brief, and we've given you specific sites throughout the brief in the joint appendix of, yes, we've got over 20, I think, over 20 third party registrations showing both beer and restaurant services from the same source.

[00:13:55] Speaker 00:
That's an indication that a singular source can produce both beer and restaurant services.

[00:14:00] Speaker 00:
Number two, we've got evidence of industry use.

[00:14:05] Speaker 00:
Back in 20 years ago when Coors was decided, the internet wasn't as prevalent.

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And at the PTO, it's an ex parte proceeding.

[00:14:13] Speaker 00:
They have to use the internet to do their searching.

[00:14:16] Speaker 00:
The evidence here is much clearer.

[00:14:18] Speaker 00:
We've got page after page after page of all these brew pubs, restaurants, tap rooms, distilleries, all these places that serve food in a restaurant, as well as serve beer,

[00:14:30] Speaker 00:
oftentimes under the same mark.

[00:14:32] Speaker 00:
Oftentimes, you'll go to Dogfish Brewery, for example, which is a restaurant.

[00:14:36] Speaker 00:
You'll sit down and you order a Dogfish beer.

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And you can also buy the bottled Dogfish beer that has the same exact trademark on it.

[00:14:44] Speaker 00:
And if you were to sell another beer out in the marketplace named Dogfish, there would be a likelihood of confusion because consumers have grown accustomed to understanding

[00:14:55] Speaker 00:
that beer under a particular name can often come from the same name as the restaurant.

[00:15:00] Speaker 00:
So that's what this evidence really shows.

[00:15:02] Speaker 00:
And I've got citation after citation in this record, Your Honor.

[00:15:06] Speaker 00:
So you don't have to give me that.

[00:15:08] Speaker 00:
Yeah, I don't want to go through it all.

[00:15:09] Speaker 00:
But to characterize it as exactly the same as Coors is simply not accurate.

[00:15:14] Speaker 00:
I mean, it really isn't the same.

[00:15:15] Speaker 00:
In every context, every step of the way, this case is stronger.

[00:15:20] Speaker 00:
on behalf of a likelihood of confusion than the Coors case was.

[00:15:24] Speaker 00:
One, identical marks.

[00:15:26] Speaker 00:
Two, a stronger cited registration.

[00:15:28] Speaker 00:
Three, better quality evidence of relatedness, which qualifies and satisfies the quote, something more standard, which is what Appellant was talking about.

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And to the extent that the Board never applied the something more standard, if you look at pages 15 through, I think it starts on 15,

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And then the board finally says under that second due part factor, which is the relatedness of the goods and services.

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We find sufficient evidence to show the relatedness of the of the applicant's

[00:16:08] Speaker 00:
the something more standard has been satisfied.

[00:16:10] Speaker 00:
So they actually applied the core's legal standard and they applied it to the facts in this case to arrive at that conclusion.

[00:16:18] Speaker 00:
And yes,

[00:16:19] Speaker 00:
It is an ultimate legal conclusion, but it's based on underlying fact findings.

[00:16:23] Speaker 00:
And those underlying fact findings are support, they follow the substantial evidence standard, as you pointed out, Your Honor.

[00:16:30] Speaker 00:
So we believe we've got substantial evidence to support the fact findings by the Board that led to its correct conclusion that there's a likelihood of confusion in this case.

[00:16:42] Speaker 00:
That's our position.

[00:16:43] Speaker 00:
If there's anything else, I'll sit down.

[00:16:47] Speaker 00:
Thank you very much.

[00:16:58] Speaker 01:
The court's decision finds that when you're talking about general industry overlap evidence, which is all we have here, we don't have any evidence that there's overlap between the applicant and the registrant in this case.

[00:17:09] Speaker 01:
None.

[00:17:10] Speaker 01:
No evidence of that.

[00:17:12] Speaker 01:
What the Coors Court found expressly was that there is not enough evidence in Coors to show that consumers will think that a same or similar mark for beer is confusingly similar to a same or similar mark for restaurant services.

[00:17:29] Speaker 01:
Jacobs is retail food versus restaurant services.

[00:17:32] Speaker 01:
This is precedent of 40 years.

[00:17:35] Speaker 01:
If you read the board's decision, in this case at pages 22 to 24, they expressly disagree with Coors.

[00:17:44] Speaker 01:
They've effectively overruled Coors.

[00:17:46] Speaker 01:
They're effectively overruling Coors.

[00:17:50] Speaker 01:
Coors says that general industry overlap evidence has to be substantial.

[00:17:55] Speaker 01:
That's what it says.

[00:17:58] Speaker 01:
There is no evidence that's, I mean, they're arguing it's different, but it's shades of gray.

[00:18:03] Speaker 01:
It's general industry overlap evidence.

[00:18:06] Speaker 01:
What do Coors and Jacobs both say?

[00:18:08] Speaker 01:
The express holdings of Jacobs and Coors, you have to show something more.

[00:18:14] Speaker 01:
For identical marks, even if the marks are identical, and we disagree on the meaning, we've already explained, I'm not going to go over that again.

[00:18:22] Speaker 01:
For identical marks, the express holding of Jacobs and Coors is you have to show something more.

[00:18:27] Speaker 01:
In this case, and I would ask the court to go look at St.

[00:18:33] Speaker 01:
Helena Hospital.

[00:18:34] Speaker 01:
St.

[00:18:35] Speaker 01:
Helena Hospital says that something more has to be evidence that relates to the applicant in the registrant, not general industry trends.

[00:18:44] Speaker 01:
The only evidence of record here is general industry trends.

[00:18:49] Speaker 01:
It's basically course.

[00:18:52] Speaker 01:
So DuPont factor two.

[00:18:55] Speaker 01:
is the relatedness of the goods.

[00:18:56] Speaker 01:
Has the board established as a matter of law, they agree that it's a legal conclusion for this court, or a matter of substantial evidence, have they established that DuPont factor two supports them?

[00:19:10] Speaker 01:
Under course the answer is no.

[00:19:12] Speaker 01:
This court would have to find that the evidence in this case is different than Coors in order to find that this decision should be affirmed.

[00:19:19] Speaker 01:
In Coors, this court reversed and remanded.

[00:19:21] Speaker 01:
In Jacobs, it was an affirmance that there was not something more.

[00:19:27] Speaker 01:
Policy implications.

[00:19:28] Speaker 01:
The policy implications in this case.

[00:19:31] Speaker 01:
What did the court find in Coors?

[00:19:33] Speaker 01:
That there's not enough trademarks for all the people applying for beer or retail food Jacobs and restaurant services.

[00:19:41] Speaker 01:
If this court affirms this decision, it means moving forward that beer and restaurant services are related as a matter of law.

[00:19:53] Speaker 01:
All that has to happen, what do they cite in this case?

[00:19:55] Speaker 01:
21 registrations.

[00:19:58] Speaker 01:
18 websites out of a million restaurants.

[00:20:01] Speaker 01:
There's over a million restaurants per NRAE Iron Hill.

[00:20:04] Speaker 01:
Over a million restaurants.

[00:20:05] Speaker 01:
They've got 18 websites.

[00:20:07] Speaker 01:
And now moving forward, the law is going to be that beer and restaurant services are related based on a mere internet search.

[00:20:15] Speaker 01:
18 websites.

[00:20:16] Speaker 01:
So you've got 21 registrations, 18 websites, nine articles.

[00:20:21] Speaker 01:
And as we've discussed, I mean, if you go even look at the evidence, I mean, it would not pass Daubert and it would not pass a cross-examination.

[00:20:27] Speaker 01:
It doesn't reflect what they say.

[00:20:29] Speaker 01:
So I have nothing more.

[00:20:30] Speaker 01:
I appreciate your time.

[00:20:31] Speaker 01:
I do think this is a significant decision.

[00:20:34] Speaker 01:
I don't think it's limited to the facts of this case.

[00:20:38] Speaker 01:
And I do think it overrules course.

[00:20:40] Speaker 02:
Thank you.

[00:20:41] Speaker 01:
Thank you.