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Our next case is Sfera Fine Linens versus Sfera Joven, 21-23, 21-98.

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Mr. Bautista, we're ready when you are.

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Thank you, Your Honor.

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Good morning, Your Honors.

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Good morning.

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If it pleases the court, my name is Phil Bautista.

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I'm counsel for Appellant Sfera Fine Linens, LLC, and we're here to appeal a decision from

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An opposition proceeding from the trademark trial appeal board dismissing appellate's opposition of the registration of appellate's trademark.

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Appellate is a SPHERA Hoven essay.

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And before I begin, I'm reserving two minutes for rebuttal.

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Board erred in finding that appellate's applied for mark, which was a word plus design SPHERA in parentheses.

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was not likely to be confused with our client's mark, also pronounced Sphera, as well as Sphera Brothers.

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Appellant submits that the board erred in weighing several DuPont factors on likely confusion, which we'll discuss today.

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And because of those errors at bottom, this case should be remanded back to the board to properly weigh the evidence before it, which we'll discuss today.

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This court also has discretion to review this case and the likelihood of confusion finding of the board and reverse it.

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The first factor I'd like to talk about is whether the party's goods are related.

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The board held that the party's goods are unrelated and found that this factor weighed heavily against likelihood of confusion.

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And as this court knows,

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The issue of the lateness of goods does not mean that the goods have to be identical.

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They don't have to be similar.

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The issue is whether or not consumers can believe that the goods are emanating from a single source.

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And in a case such as this, where we have a party that is not selling any goods because this was an intent to use application, the fact that

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one party sells the goods of both parties is relevant to that relatedness, this relatedness factor.

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And also, this board has held that one related good between the parties is sufficient to tip the scales towards a likelihood of confusion.

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And really what relatedness... So as I understand it, York Coins Company, they sell

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products under the names Farah, not only the listed goods in the trademark registration, but additional goods.

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Yes.

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Including bath robes and scarves, right?

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That is correct.

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Does it matter for the analysis when the sales and marketing of those particular additional goods occurred?

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Like for example,

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This opposition proceeding started, what, in 2016?

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That's correct.

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And what if your client's company didn't start selling all of those goods until some years later in the middle of the administrative proceeding?

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And therefore, it almost looks like, hey, let's try to improve our position in this opposition proceeding by starting to sell some of the very items that are listed in the applicant's

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itemize goods and services?

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It's a good question, Your Honor.

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And I believe the answer is no.

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And this was not extensively discussed.

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In fact, it wasn't discussed at all at the board or even in the briefing in the context you sort of raised.

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But if you just think about the issue of, for example, natural expansion doctrine, where a registrant can protect

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it's marked from products sold by a later user even though it wasn't selling those products at the time because they were within the natural sphere of the goods related to goods they were already selling.

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So that's just one example of why this doesn't matter.

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Why selling the identical or similar goods.

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Bath robes sounds like a natural extension of the already sold bath towels and things like that.

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What about scarves?

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Well, the board itself has found in a case, it's the in Ray Phillips Van Heusen case that we cite, that in the right conditions, right market conditions, as we'll also discuss in this case, that linens, including towels and clothing, such in this case it was shirts in the in Ray Phillips Van Heusen case, are in fact related.

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The reason why that was in this case is there were market conditions that showed that consumers could believe that these products were emanating from a similar source.

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And Palin submits that that is the case here.

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So to round out your question, Your Honor, it is not important for a panel to have been selling the exact similar identical goods to demonstrate relatedness that consumers could believe that these goods are emanating from the same source.

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And I might submit to you, Your Honor, that

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Appellant was selling at least some of these goods, robes, before the application date of Appellee, which was December 12, 2014, I believe.

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And if I could give you some appendix sites to that, our client was selling robes

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Appendix 107, paragraph 8, authenticated this.

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In 2009, that's appendix 573, 766.

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And again, there's evidence of the record, sales of robes in 2012, appendix 723, sales of robes generally, appendix 353.

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And post this application, there's also evidence of sales of scars, and robes, and diffusers, and candles.

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Those appendices are in our brief.

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But to very quickly give you some- That's OK.

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We have them in your brief.

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OK, great.

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What about the question of foreign use?

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That was sort of disparage, wasn't it?

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Forward use.

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Well, foreign use related to the trade channels issue, the trade channels, and we can go to that if you'd like.

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But before I... That's one of your soft points, relatedness of goods and channels of trade.

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The board found in your direction on

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Distinctiveness, it held the mark was conceptually strong, somewhat strong commercially.

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And in terms of similarity of marks, they differ by only one R, but found against you on relatedness of goods and channels of trade.

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And the foreign sales were held against you.

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That's right.

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You want to comment on that?

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I do.

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your honor, and with respect to the similarities of the parties trade channels, we think that the board heard as well.

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With respect to foreign evidence of trade channels, the board stated that references originating from foreign countries

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are not probative for the purposes of the spread.

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I think that's the language that they used.

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That's actually not true.

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Foreign evidence can be considered by the board on a case-by-case basis.

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That's the in Ray Bayer case that from this court

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that is cited in the briefing as well as the board itself has considered foreign evidence.

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That was for a different context than trying to figure out what would be the trade channels in the United States.

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Bayer was more about let's try to understand the meaning of this term.

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That is true, Your Honor.

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But for Appellant, that is a distinction without a difference.

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If you look at what the consumers were doing in that case, they were making reference to foreign publications and websites.

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a trade channel used by these companies, in that case.

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And I can think of no better circumstance to consider foreign evidence than this case, where Apple essentially concedes that it is selling its products through the internet.

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on sales on its website and through retail stores, which are exactly the same trade channels as our client through third-party retailer websites as well as through retail stores.

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They can see this point.

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It is reality.

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That is their trade channels.

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In addition to that, and beyond the evidence, if you just look at the description of the parties trade channels in their applications or registrations, there are no restrictions to it.

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And what the board should have considered then, because there are no restrictions of trade channels in the registrations and applications, is that they travel in the same

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trade channels as the same consumers.

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The board cited a case in Ray Vitality to say that the goods had to be identical in order to apply that presumption.

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Well, I think they have to be identical or at least similar, right?

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Well, it's not, they can be totally dissimilar and then we just assume that they travel in the same trade channels.

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That's true if we're talking about, you know, auto vehicles and pens, certainly those are two distinct, but in that case it wasn't identical.

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That's not what Enrave de Tarrant held and what the board measured.

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They said

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that had to be identical.

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Actually, they do have to be similar, as you point out.

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And I think that's a Hewlett-Packard case that is actually cited in the Enrique Vitella case.

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But as we pointed out earlier, there are some similar goods that Art Klein is selling.

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Is this back to the bathrobes and scarves argument?

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That's correct.

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OK.

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So if you win on your bathrobes and scarves argument,

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Assuming we were to vacate and remand on that then there's a chance you could prevail on your trade channels are We could also prevail if I can go on to the next topic as well if you consider that kind of consumers That our client has the answer is yes, and it does dovetail into my next topic and an error by the board which held that that

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the overlap of consumers of the parties was a neutral factor.

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This was a very puzzling ruling by the board, because the board held that both parties, based upon their descriptions of goods and their applications and registrations, held that they both sell basic and expensive goods.

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Your company sells basic and expensive goods?

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I thought you showed... Oh, you're saying you sell some cheap stuff, but mostly expensive stuff.

[00:11:50] Speaker 02:
Yes, we sell some cheap stuff.

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What's your cheap stuff, though?

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I have some appendix sites, if you'd like.

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Just tell me what it is.

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I don't care about the appendix.

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Okay, robes, candles, clothing for less than $30, shams, bedding, towels.

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Clothing for less than $30?

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Yes.

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What clothing do you sell that's less than $30?

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Maybe socks.

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What?

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Yeah, is a $30 pair of socks cheap?

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Because I don't think so.

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Well, you got the bathrobes, you got the scarves.

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You haven't identified any other item of clothing that you sell.

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So that's why I'm asking.

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I mean, is this the same bathrobe that you sell to the Willard?

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Because if it is, I can't imagine it's cheap.

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Robes are range from a wide range of robes.

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Yes, we do have this price.

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The price I have here.

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Here's my problem with this argument is the overall sense from all of your papers and all of the things it looks like where your sell stuff is.

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You're a Neiman Marcus, Sax Fran, and I don't want to disparage them, but they look like they're more like Walmart or Target or something like that.

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I'm not disparaging because I can't afford to shop at Neiman Marcus and Sax.

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I'm more likely to shop at Target.

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Those are two very different things.

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Wouldn't you agree?

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Consumers of those stores are largely two different sets of consumers, too.

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I would say that there are differences between Neiman Marcus and differences between Walmart, but they're both retail stores which are considered the same trade channels.

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And the issue is not necessarily do they sell in the right, in the exact same stores or on the exact same website.

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The issue is whether they're

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I don't see how that can be necessarily true if it's this kind of market.

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Maybe if there's something that's sold for the same price and it doesn't matter where they're sold.

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But a bathrobe at Target and a bathrobe at Neiman Marcus are almost never going to be the same price, never going to be the same quality, not directed to the same kind of consumer.

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So there it seems like it should be very relevant.

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Well, I'm not saying that our client doesn't sell what they call luxury items.

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They do.

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But they also sell inexpensive items.

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Like the $40 diffuser?

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A $40 diffuser, I think, is not.

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That's market.

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I don't think that that's expensive for a. You should not run for political office in this country.

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Well, I wouldn't want to, Your Honor.

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Maybe he should.

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I wouldn't want to.

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I'd like to point out a case, the NRA Occitano case, which suggested that even though two parties might have different goods, some sold to some kind of consumers, some sold to other consumers.

[00:14:48] Speaker 01:
Counsel, you want to save a couple of minutes, and your time has almost run out.

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So we'll give you two minutes for a bottle.

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Yes.

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And we'll hear from the other side.

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Thank you.

[00:15:06] Speaker 01:
Mr. Pamias.

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Good morning, Your Honor.

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May it release the court.

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For the record, Samuel Pamias.

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Your Honor, we believe that the board's decision should be sustained.

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It should be sustained because they applied the proper standard when they analyzed these two trademarks, ESFERRA and ESFERRA.

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When you look at the various issues,

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they seem to be against you.

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The board found that there was a presumption of distinctness, and so the mark was conceptually strong and commercially somewhat strong.

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And they're very similar.

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And so those were two findings against you.

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It found that consumer sophistication

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In fact, it was neutral.

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So that's neutral.

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And only unrelatedness of goods and channels of trade do they find in your favor.

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And that's not so clear.

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So why shouldn't we reverse?

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Well, Your Honor, although I'm going to go one by one.

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Although we believe that these trademarks

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shared similarities, especially in English.

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For me, that I speak Spanish, sfera and sfera sound completely different, although we understand that the relevant public is an English-speaking consumer.

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So that part I can understand.

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But in terms of the problem in this case is a problem of evidence, admissible evidence.

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And that's something that the court should take in consideration.

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The evidence that was submitted by Appelant, although it looks like a lot of evidence when you go through all the exhibits and you look at everything, and then you go specifically to what evidence have they produced

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to prove that they have goods that are similar, then you have the goods that your honors have mentioned, the scarves, the robes, and when you look at how many exhibits there are, there are four.

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Four in the appendix.

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And those exhibits, they really don't have any sworn statement to support or to show that those goods are being sold in the U.S.

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market.

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I thought they had two declarations that said so.

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Yes.

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And I'm going to point exactly at the ambulance sole reply to our brief.

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Because when you read it, the specific portion that they cite, you there can tell that what they're talking about, and I think it helps the court if I read it directly, what they indicated is that

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I know you look exactly, because I have it right here.

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Just a second here.

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They indicated that... I have it right here, just a second.

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When you look at the sworn statement, Your Honor,

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They talk about marketing.

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They indicate that they use that.

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Let me just go directly to that.

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And they have exhibits, photos from a website, right?

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Yes, Your Honor.

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And the board correctly pointed out and said that those photos, they cannot be used to support

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the truth of what they're alleging that those marks are in the market.

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I mean, those exhibits are very old.

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I mean, some of them are from 1988, I believe.

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If I can go directly.

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It's not clear to me that the trademark board addressed these specific pieces of evidence that the opposer pointed to and relied on related to bathrobes and scarves and candles and diffusers.

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Judge Chen indicated that those opposers also rely on his alleged common-law use of his asparamide for bathrobes, scarves, diffusers, and candles without including any evidence of use prior to applicants' priority filing date.

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I'm sorry.

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What page are you on?

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I just summarized.

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What page of the Trademark Board decision are you working from?

[00:19:57] Speaker 00:
Let me look exactly in which I can look very clearly.

[00:20:07] Speaker 00:
Let me get the, if I may, Your Honor, grab the other file.

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Because I have it on the.

[00:20:14] Speaker 01:
You might retrieve it.

[00:20:21] Speaker 03:
Oh, I see.

[00:20:22] Speaker 00:
You're at A14, A15.

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They do make that specific remark.

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So the board really went through all the bond factors one by one.

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And when they made the, just like,

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I want to point out specifically to the... Okay, here we go.

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Apple, citing a portion of the declaration testimony of its president and CEO and vice president responsible for brand development and business expansion, in its declaration says, while the ownership of the company and the SPHERA products and SPHERA

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trademarks have changed hands several times.

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The trademarks have been used continuously by these owners.

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Attached are true and correct copies of historical and current marketing materials that demonstrate the history of the brand.

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And here's the problem that I have with that statement, that that statement is supported with hundreds of documents.

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You really do not know specifically which document supports specifically which part of those statements.

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You do not know exactly.

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And the problem is that those four documents that they make reference to, they may very well be over there.

[00:21:49] Speaker 00:
But as Judge Chen pointed out earlier or asked, you cannot tell when these marks were being used.

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You cannot tell if they're being used still today, because they're mixed.

[00:22:01] Speaker 03:
The problem I have

[00:22:04] Speaker 03:
One problem I have with the Ford decision is that it appeared to be looking at this evidence with respect to bathrobes and scarves through the lens of trying to figure out whether the opposer had established common law rights and priority rights to those goods and services, and did not really address what I saw was an additional separate argument being made

[00:22:33] Speaker 03:
by the opposer, which was that there is evidence in the record, i.e.

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me, that is selling goods that the applicant has identified in its intent to use application, that clothing and perfumery.

[00:22:56] Speaker 03:
I believe, Your Honor, there might be one.

[00:22:59] Speaker 00:
If I remember correctly.

[00:23:00] Speaker 03:
And so therefore, the board didn't address that aspect of the opposer's argument in this board decision.

[00:23:06] Speaker 00:
Well, that one particular item that you mentioned, I don't recall them discussing it directly.

[00:23:15] Speaker 00:
But I do recall, as you correctly said.

[00:23:17] Speaker 03:
And then we do have a case law.

[00:23:17] Speaker 03:
I think it's Hewlett-Packard that says,

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when there is evidence that a company sells the goods of both the registrant and the applicant, that is evidence that the goods can be thought of as related goods.

[00:23:35] Speaker 00:
Yes, Your Honor.

[00:23:36] Speaker 00:
But I believe in the Hewlett-Packard case, what they're talking about is when the goods are identified in the application and in the registration, we're not talking about goods that are sold

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on the market.

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I think what that case talks specifically is about goods that are shown on the trademark application and on the trademark registration.

[00:24:00] Speaker 03:
What if I disagree with your reading of Hewlett-Packard and it's more like if the registrant sells books and the applicant sells pencils and then

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evidence is put forward that some third company sells both books and pencils, then that's evidence that maybe books and pencils are related goods.

[00:24:22] Speaker 00:
But the problem over here is that I don't feel that they have produced that kind of evidence for the record.

[00:24:29] Speaker 00:
Admissible evidence.

[00:24:30] Speaker 00:
And that's exactly the problem that I see.

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That this case has a problem of lack of admissible evidence as to that regard.

[00:24:39] Speaker 00:
That other companies are selling the same type of products in the market.

[00:24:43] Speaker 00:
For example, something that

[00:24:46] Speaker 00:
Apple has mentioned several times in their briefs that they point out that the board made a mistake by not accepting evidence of products of the same kind being sold abroad.

[00:25:01] Speaker 00:
or how their products are sold in the market.

[00:25:05] Speaker 00:
They could have found evidence of companies that do the same thing in the United States and use it as evidence, I believe.

[00:25:13] Speaker 00:
So that's something that I believe that it's lacking on their part to produce that kind of evidence in order for the board to be in a better position to make its determination.

[00:25:24] Speaker 03:
What about similarity of the marks?

[00:25:27] Speaker 03:
My understanding is the board found that Zvera and Zvera

[00:25:30] Speaker 03:
Zweren's Phara are more similar than dissimilar, which sounds like a much more weak finding than finding that the marks are highly similar and weigh heavily in favor of a likelihood of confusion.

[00:25:50] Speaker 03:
Do you think there's a deficiency there, given the seemingly high degree of similarity of these two marks?

[00:25:59] Speaker 00:
I feel that they made the appropriate decision in that regard.

[00:26:04] Speaker 00:
I think the board was fair in terms of how they view these trademarks.

[00:26:08] Speaker 00:
These trademarks, admittedly, they're not identical.

[00:26:11] Speaker 00:
They can be distinguished.

[00:26:16] Speaker 00:
They have two R's.

[00:26:17] Speaker 00:
I mean, the Avalance trademark has two R's.

[00:26:20] Speaker 00:
Like I said before, and again, I understand that the relevant market is the U.S.

[00:26:26] Speaker 00:
and English-speaking market.

[00:26:27] Speaker 00:
But in Spanish, for example, having two R's makes a world of difference.

[00:26:31] Speaker 00:
In English, maybe not so much.

[00:26:34] Speaker 00:
But nevertheless, that doesn't mean that a consumer cannot look at the trademark and see the differences right away.

[00:26:42] Speaker 00:
Because either they misspelled the word or something happened.

[00:26:46] Speaker 03:
I guess the question is, why shouldn't we vacate and remand just on that factor?

[00:26:53] Speaker 03:
Because the Trademark Board did not have the benefit

[00:26:57] Speaker 03:
of this court's Natara decision, which came out, I don't know, a couple years ago.

[00:27:02] Speaker 03:
And I believe for the first time really highlighted the notion that when the competing marks are really similar, that should count not only in favor of likelihood of confusion, but should weigh heavily towards a finding of likelihood of confusion.

[00:27:21] Speaker 00:
Well, first of all,

[00:27:25] Speaker 00:
I do believe that Appelant has had the chance to argue this before this board, the Natura case.

[00:27:32] Speaker 00:
And I understand that the board did not have the chance.

[00:27:36] Speaker 00:
But the Natura case is different from this particular case.

[00:27:40] Speaker 00:
Because in this particular case, the court made an analysis of all the DuPont factors and explained them very well.

[00:27:48] Speaker 00:
I believe that the board, when they analyzed the similarities between the trademarks,

[00:27:53] Speaker 00:
They did do a good job.

[00:27:54] Speaker 00:
They reviewed the trademarks, and they said that they are similar.

[00:27:57] Speaker 00:
And they move on to the other factors to analyze how the trademarks are found on the trade channels, how the trademarks are found, how related are the goods.

[00:28:10] Speaker 00:
So they move on to the other factors.

[00:28:12] Speaker 00:
And from my perspective, they did perceive correctly, as you also perceived, that the trademarks are similar.

[00:28:21] Speaker 00:
I don't know if they're very similar, but they're similar.

[00:28:24] Speaker 00:
I mean, there are plenty of case law from this court and the board that sustain that although some trademarks may be very similar and shared, they're almost identical, that they can coexist in the markets because consumers can tell the difference from one another.

[00:28:43] Speaker 00:
Even if it is one letter, the difference, and I think we cited plenty of

[00:28:50] Speaker 03:
Has your client begun marketing any goods in the United States?

[00:28:53] Speaker 00:
Not yet, Your Honor.

[00:28:55] Speaker 00:
Not yet.

[00:28:56] Speaker 00:
I believe they're close, but they have not begun to do so in the United States yet.

[00:29:01] Speaker 03:
Do we know where they're going to sell their goods?

[00:29:05] Speaker 00:
None that I know of.

[00:29:06] Speaker 03:
Like the department stores?

[00:29:09] Speaker 00:
Here's, I really cannot answer that question because I would be definitely, I would be guessing right now.

[00:29:15] Speaker 00:
I know what they have done in the past.

[00:29:16] Speaker 00:
They have sold those goods in the courting list, which I don't know if you know.

[00:29:22] Speaker 00:
In Spain, it's like a department store.

[00:29:25] Speaker 00:
And they have done it through the internet.

[00:29:28] Speaker 00:
And that's something that I want to point out specifically because Applelands points out

[00:29:35] Speaker 00:
constantly that we have conceded that the trademarks are in the same channels of trade, and that is a mistake, or that's not correct.

[00:29:45] Speaker 00:
When we made that statement in the brief, what we said specifically is in general terms, and that makes a world of difference to us, we said in general terms, this trademark can be found here and here.

[00:30:01] Speaker 00:
We said in department stores and the internet, but we didn't say, well,

[00:30:05] Speaker 00:
We said in general terms, we are not for sure where the trademark is going to be used in the United States.

[00:30:09] Speaker 00:
So it's not that we're conceding that it's in the exact same stores, because that's what I feel that APALAN is trying to point out, that these trademarks are going to be on the same stores.

[00:30:20] Speaker 00:
And that is incorrect.

[00:30:21] Speaker 00:
That's not an allegation that we have made.

[00:30:24] Speaker 00:
Thank you, counsel.

[00:30:28] Speaker 01:
As you can see, your time has expired.

[00:30:32] Speaker 01:
Thank you very much.

[00:30:33] Speaker 00:
Thank you.

[00:30:34] Speaker 01:
Bautista has two minutes for a bottle.

[00:30:45] Speaker 02:
I just wanted to address a few points with respect to the trade channels.

[00:30:50] Speaker 02:
Apple argues that we didn't present evidence of how other companies sell

[00:30:56] Speaker 02:
the party's products.

[00:30:57] Speaker 02:
That's actually not true.

[00:30:59] Speaker 02:
We did submit, and I think I discussed in my first session, that we presented evidence of how third-party retailers like Nordstrom and Neiman Marcus sell the goods, and they sell them online.

[00:31:10] Speaker 02:
So that is actually inaccurate with what opposing counsel said.

[00:31:15] Speaker 02:
With respect to the similarity of the marks and the comment about NRA and Natara, we do believe that

[00:31:24] Speaker 02:
when this court is reviewing the board's order de novo, that the fact that the party's marks are similar, even more similar than not,

[00:31:37] Speaker 02:
that this weighs heavily in favor of a likely of confusion finding.

[00:31:42] Speaker 02:
That's in rain the terrors, as Judge Chen pointed out.

[00:31:46] Speaker 02:
And in fact, the board has acknowledged this.

[00:31:49] Speaker 02:
And I fit the vidal.

[00:31:51] Speaker 02:
They asked this board to amend the case because of that.

[00:31:57] Speaker 03:
As to the declarations and evidence that you relied on below to try to show that you yourself sell goods that are listed in the applicant's application, the other side just said that that evidence was balanced for lack of admissibility, that the board rejected it.

[00:32:19] Speaker 03:
Is that correct?

[00:32:21] Speaker 02:
I don't think that is correct, Your Honor.

[00:32:23] Speaker 02:
I think that's an argument that they are making.

[00:32:26] Speaker 02:
I think that the board didn't reject the evidence.

[00:32:29] Speaker 02:
I don't think the board considered it.

[00:32:31] Speaker 02:
I think it didn't consider the fact that a lot of the exhibits to the declaration.

[00:32:36] Speaker 03:
What does it mean when the board at A-15 says the materials and opposers NOR, which are not supported by accompanying testimony, are not admissible for the truth of the matters asserted therein, but instead are admissible only for what they show on their faces?

[00:32:53] Speaker 03:
Is that in relation to

[00:32:56] Speaker 03:
your two declarants talking about how your client's company has sold bath robes and scarves?

[00:33:04] Speaker 02:
Yes, but only because at that point in time, you're not supposed to submit declarations that are to verify and authenticate those exhibits with the Notice of Reliance.

[00:33:13] Speaker 02:
We did that in the trial period.

[00:33:15] Speaker 02:
We used the same identified exhibits in the Notice of Reliance and then

[00:33:23] Speaker 02:
We used declarations as testimony to verify those documents.

[00:33:27] Speaker 02:
So sure, the fact that no declaration was submitted, notice of reliance occurred.

[00:33:34] Speaker 02:
But we did that at the appropriate time during the trial period.

[00:33:39] Speaker 01:
Thank you, counsel.

[00:33:40] Speaker 01:
As you can see, your time has expired.

[00:33:43] Speaker 01:
The case is submitted.

[00:33:44] Speaker 02:
Thank you.