[00:00:00] Speaker 03:
All right, our final case for argument is 25-1071.

[00:00:05] Speaker 03:
Titanium LLC versus Zspec Design.

[00:00:10] Speaker 03:
Mr. Connors, please proceed whenever you're ready.

[00:00:14] Speaker 04:
Good afternoon, Your Honors.

[00:00:15] Speaker 04:
It's a pleasure to be here today.

[00:00:16] Speaker 04:
I'm Andrew Connors on behalf of Titanium LLC.

[00:00:21] Speaker 04:
The USPTO is charged with maintaining a trademark registry to decide or give notice to the public as to who has ownership and who does not.

[00:00:30] Speaker 04:
Part of that charge from the Lanham Act is to direct the public and reconcile conflicts between claims of ownership.

[00:00:39] Speaker 04:
Here it failed.

[00:00:40] Speaker 03:
I think the case really just boils down to whether you waived the likelihood of confusion argument.

[00:00:45] Speaker 03:
Because if there's two things you have to prove and you only

[00:00:49] Speaker 03:
establish one of them and argue one of them, then the board can find you waive the other and that's just the end of the day.

[00:00:55] Speaker 03:
So where can you demonstrate or what is your argument for how it is that you did not in fact waive your burden to establish likelihood of confusion?

[00:01:05] Speaker 04:
Well, Your Honor, I agree with you.

[00:01:06] Speaker 04:
It boils down to that.

[00:01:07] Speaker 04:
And I'd say there's two responses, two prime arguments.

[00:01:11] Speaker 04:
One, we mentioned likelihood of confusion insofar as the way it got here.

[00:01:16] Speaker 03:
OK, so show me where you mention that so that I can ascertain whether that is an argument or just a sort of background passing.

[00:01:23] Speaker 03:
Yes.

[00:01:24] Speaker 03:
Kind of like it was sunny last week.

[00:01:26] Speaker 04:
Yes, Your Honor.

[00:01:26] Speaker 04:
I understand.

[00:01:29] Speaker 04:
And I understand exactly what you were saying, right?

[00:01:31] Speaker 04:
In our opening trial brief at the Trademark Trial Appeal Board, we said in the statement of facts, we had lengthy facts.

[00:01:38] Speaker 02:
Did you give us a page number?

[00:01:39] Speaker 04:
Yeah.

[00:01:39] Speaker 04:
Well, yes, Your Honor.

[00:01:40] Speaker 04:
Excuse me.

[00:01:41] Speaker 04:
Just a moment.

[00:01:41] Speaker 04:
Let me get that.

[00:01:51] Speaker 04:
In the appendix,

[00:01:54] Speaker 04:
titanium's trial brief excuse me in the statement of facts we discuss an appendix 20

[00:02:15] Speaker 04:
Appendix 21, so effectively the last paragraph of the Statement of Facts, we describe in detail the procedure that led us here, which is that we submitted two trademark applications.

[00:02:26] Speaker 04:
Those trademark applications were rejected on the basis of likelihood of confusion.

[00:02:31] Speaker 03:
You must be missing something.

[00:02:32] Speaker 03:
Me too, I'm on a... Appendix 21 is... I've got a title thing.

[00:02:37] Speaker 04:
Excuse me, Your Honor.

[00:02:39] Speaker 04:
I'm sorry, forgive me.

[00:02:40] Speaker 04:
I may be referencing an outdated appendix that I printed.

[00:02:43] Speaker 04:
And so the best I can tell you is page five of our opening, petitioners, excuse me, opening brief to the United States Patent and Trademark Office.

[00:02:53] Speaker 04:
That would be the end of our statement of facts.

[00:02:55] Speaker 04:
I'm sorry for the misnumbering.

[00:02:59] Speaker 04:
Yes, yes, I'm sorry.

[00:03:00] Speaker 04:
I misprinted an old version of it.

[00:03:03] Speaker 02:
Is there anywhere in the argument section where you reference likelihood of confusion?

[00:03:08] Speaker 04:
I would agree we don't.

[00:03:10] Speaker 04:
I would agree we don't.

[00:03:11] Speaker 02:
So just so I get my record clear, the only place where you reference likelihood of confusion was this appendix page 30 in the facts section.

[00:03:19] Speaker 04:
Yes, Your Honor, that's true.

[00:03:22] Speaker 04:
I think that's critical, and why I'm trying to give the background of the court here.

[00:03:26] Speaker 04:
And this is a common experience.

[00:03:28] Speaker 04:
And we explain it right there, is what we say is, it's very common that you apply for a trademark.

[00:03:35] Speaker 04:
It gets rejected for a likelihood of confusion.

[00:03:38] Speaker 04:
You then suspend those trademark applications and do what we did here, which is seek a cancellation proceeding.

[00:03:44] Speaker 04:
And so we give that background to the office.

[00:03:47] Speaker 04:
And the office says, well, that's waived because we don't look at our own proceedings unless you attach that proceeding to the record.

[00:03:55] Speaker 04:
I think that itself is an unreasonable rule, which is nowhere.

[00:04:00] Speaker 03:
We don't even have to get to that, do we?

[00:04:02] Speaker 03:
If we find that you waive the argument by not actually making it in the argument section.

[00:04:08] Speaker 03:
So that whole attachment thing, it seems, might be a red herring.

[00:04:13] Speaker 04:
I disagree, Your Honor, because the whole purpose of the paragraph I'm describing is to tell the office the reason we're here is an action you took.

[00:04:22] Speaker 04:
In other words, the office doesn't want to recognize its own action.

[00:04:26] Speaker 04:
So if the office should have recognized its own action, if the office should have said, yes, our examiners did in fact project this on a basis of a likelihood of confusion.

[00:04:36] Speaker 03:
You could have a rejection on likelihood of confusion, and you could attempt to overcome that rejection, couldn't you, by arguing this priority point.

[00:04:48] Speaker 03:
Suppose that the office actually found there was a likelihood of confusion, then you would move to priority, right?

[00:04:54] Speaker 04:
I'm sorry to ask a question on it, but are you saying in the process of dealing with the examiner, you could argue priority with the examiner?

[00:05:03] Speaker 03:
No, I'm saying here.

[00:05:07] Speaker 03:
In titanium's trial brief, why didn't it argue likelihood of confusion?

[00:05:14] Speaker 03:
Why didn't you say there is a likelihood of confusion?

[00:05:17] Speaker 03:
I mean, there's the DuPont test.

[00:05:20] Speaker 03:
There's all these different tests.

[00:05:22] Speaker 03:
You didn't cite any of that precedent.

[00:05:24] Speaker 03:
You didn't articulate how you established likelihood of confusion.

[00:05:28] Speaker 03:
You didn't sort of weigh the factors for it.

[00:05:30] Speaker 03:
You didn't go through any of that analysis.

[00:05:33] Speaker 03:
And you have the burden of establishing

[00:05:37] Speaker 04:
Your honor, what I'm posing to the court, I don't disagree that that's, you're right, right?

[00:05:43] Speaker 04:
That there's precedent to establish that.

[00:05:46] Speaker 04:
But that precedent, what I really want to focus the court in on is this rule that says, we won't recognize our own proceedings.

[00:05:53] Speaker 04:
We won't recognize what the left and right is doing in this case.

[00:05:56] Speaker 04:
I think that's critical.

[00:05:57] Speaker 01:
You didn't even make an argument that they should recognize what the left hand did.

[00:06:03] Speaker 01:
You just have a quick passing reference to likelihood of confusion.

[00:06:06] Speaker 01:
You might be on stronger ground if you had a couple sentences in the argument that said, we don't have to say very much about likelihood of confusion because this very same office last week found likelihood of confusion.

[00:06:17] Speaker 01:
Now we'll move on to priority.

[00:06:19] Speaker 01:
But you have to admit you didn't even do that much, right?

[00:06:22] Speaker 04:
Well, Your Honor, if I cite to this court, I would agree.

[00:06:25] Speaker 04:
It's not in the argument section.

[00:06:26] Speaker 04:
I absolutely agree.

[00:06:27] Speaker 04:
But if I cite to this court, this court's precedent, I don't say, please take judicial notice of that fact.

[00:06:31] Speaker 04:
When you file this petition, which is included in the record, the petition, we cite the actual registrations that are filed.

[00:06:39] Speaker 04:
We cite the basis.

[00:06:40] Speaker 02:
But don't you agree that for us to fault a board on not considering some argument that is not actually made, don't you feel like that's a pretty onerous standard for us to hold the board to?

[00:06:53] Speaker 04:
Well, no, Your Honor.

[00:06:54] Speaker 04:
The board said in its opinion it's not going to look.

[00:06:57] Speaker 04:
It acknowledged this section we're talking about, and it said it wouldn't look at that because it wasn't attached.

[00:07:03] Speaker 04:
That's what it said.

[00:07:04] Speaker 04:
But in other words, it's saying it's not going to look at its own records.

[00:07:07] Speaker 04:
It's not going to look at its own records and its own proceedings.

[00:07:10] Speaker 04:
That's what it said.

[00:07:11] Speaker 04:
So I don't think it's that onerous.

[00:07:12] Speaker 04:
It's not onerous at all.

[00:07:14] Speaker 01:
It's not onerous on you either.

[00:07:16] Speaker 01:
I mean, you started out when you got up here to tell us about how they have to maintain the whole

[00:07:20] Speaker 01:
registration system.

[00:07:22] Speaker 01:
There's lots of trademarks and applications and cancellation proceedings.

[00:07:26] Speaker 01:
It doesn't seem unreasonable to expect a petitioner for cancellation to at least include a couple sentences and attach what they want the board to look at.

[00:07:36] Speaker 04:
Yes, Your Honor, except in so far as

[00:07:38] Speaker 04:
The likelihood of confusion is even an interesting standard that's really nearly inapplicable here insofar as we hear with a direct conflict, same mark, same goods and services.

[00:07:49] Speaker 04:
That was what was posed to the board.

[00:07:51] Speaker 04:
And what was additionally posed to the board is that they already rejected it because it's an easy rejection to make.

[00:07:55] Speaker 04:
So those two things were posed.

[00:07:57] Speaker 04:
The thing the board was unwilling to do is to say, oh, yes, we did that.

[00:08:02] Speaker 04:
Bear in mind, the board at the same time said, we acknowledge that they're standing based upon what you allege here.

[00:08:08] Speaker 04:
based upon you alleging this conflict, plus, except they were selective.

[00:08:12] Speaker 04:
They said, we alleged in our petition that there were demand letters sent out attempting to stop our use of this trademark.

[00:08:21] Speaker 04:
And the board took full acceptance of that standing issue.

[00:08:24] Speaker 04:
Right?

[00:08:25] Speaker 04:
Even though there's no argument anywhere here about standing, there's no evidence submitted about standing.

[00:08:30] Speaker 04:
They just accepted that as true.

[00:08:32] Speaker 04:
They could have just as easily accepted as true the fact of their own records.

[00:08:36] Speaker 04:
Right?

[00:08:36] Speaker 04:
And it's not that onerous, Your Honors, when you consider that.

[00:08:39] Speaker 04:
I would agree, if we went back 30 years, and now I'm making a demand that they comb through paper records, but literally all they have to do with their electronic system is click a button.

[00:08:51] Speaker 04:
That's it.

[00:08:51] Speaker 02:
So are you saying you made some argument that the board take judicial notice of its own documents?

[00:08:57] Speaker 04:
I'm not suggesting that I asked explicitly for judicial notice, because I'm suggesting that you don't traditionally do that.

[00:09:04] Speaker 04:
I'm saying I told the board of its own action and why we're here today, or not here, but before them at that time.

[00:09:11] Speaker 04:
So I'm saying that was asked and put before them.

[00:09:14] Speaker 04:
The office was told of its own action, and it said it won't recognize that action because of this cumbersome nature of doing things.

[00:09:22] Speaker 04:
But it's not cumbersome.

[00:09:23] Speaker 04:
It's far from cumbersome.

[00:09:26] Speaker 02:
So you're really relying on this one sentence on Appendix Page 30 talking about titanium file the trademark application with the USPTO, that sentence that has the words likely of confusion in the facts section to say that therefore this argument was squarely before the board?

[00:09:42] Speaker 04:
Yes, Your Honor.

[00:09:43] Speaker 04:
I would say more than that one sentence.

[00:09:44] Speaker 04:
I think what followed... What else you got?

[00:09:46] Speaker 04:
You said you have more than... Well, there's a few sentences that followed describing the action that the office took.

[00:09:52] Speaker 04:
So we don't just say, it says here, it says, titanium filament trademark application with the USPTO for the trademark and associated logo in September of the same year received a non-final office action rejecting the application based upon a likelihood of confusion with registered mark.

[00:10:07] Speaker 04:
In support of this office action, and I'm just suggesting Your Honor, it continues for about a pair of, you know, four or five, six lines there.

[00:10:14] Speaker 04:
about what they did.

[00:10:16] Speaker 04:
And not just arbitrarily, with reference to all the registration serial numbers by which this can be looked up readily.

[00:10:25] Speaker 04:
As I said before,

[00:10:32] Speaker 04:
I readily acknowledge here, Your Honor, I wish I could go back and write a sentence in the argument like Judge Stark said.

[00:10:38] Speaker 04:
I get that.

[00:10:39] Speaker 04:
But that doesn't mean that the office still didn't act arbitrarily in this case or act unreasonably in this case.

[00:10:45] Speaker 04:
I think this particular rule we're referencing, as applied to this particular circumstance, they're given a petition that says, we claim the exact same mark for the exact same goods and services, dress of bolts for decorative automotive fasteners.

[00:10:58] Speaker 04:
We claim we have a conflict because you told us we have a conflict that's all stated in the petition and stated here again and what we've just been discussing and As to that conflict we ask that you resolve it in our favor because then the only thing reasonably in dispute that anybody's ever disputed is

[00:11:14] Speaker 04:
is who came first in use in commerce.

[00:11:17] Speaker 04:
And in fact, I think what's also very significant is the office is readily acknowledging that it's not going to look at any of the documents that were provided because ostensibly it's all about priority.

[00:11:27] Speaker 04:
But priority, I would submit to the court, is not really a separate

[00:11:31] Speaker 04:
element.

[00:11:31] Speaker 04:
It's a rule of decision that's intertwined with the first, meaning we're saying, okay, once we know there's a conflict, and we call that likelihood of confusion because there can be this expansive reach of some marks that go beyond that, but there's no question when it's the same mark and the same goods and services, right?

[00:11:49] Speaker 04:
You know, wish I'd said that.

[00:11:52] Speaker 04:
readily acknowledge it, but I think we said enough here for this court to say, simply take acknowledgement of your own actions in this case.

[00:12:00] Speaker 04:
That's an unreasonable rule as applied to this particular scenario.

[00:12:05] Speaker 03:
That's what we'd ask... Do you have your brief handy on page six of your brief?

[00:12:11] Speaker 03:
Tell me when you have it.

[00:12:12] Speaker 04:
Yes, Your Honor.

[00:12:12] Speaker 04:
Are you referring to my, the brief at the... Your blue brief right here before us.

[00:12:16] Speaker 04:
Yes.

[00:12:16] Speaker 04:
Yes, Your Honor.

[00:12:17] Speaker 03:
You say, as an initial matter, it's false that titanium did not mention or reference likelihood of confusion.

[00:12:23] Speaker 03:
And then you say that you explicitly did when you said the PTO denied for likelihood of confusion.

[00:12:29] Speaker 03:
That's the reference to page five of your trial brief, right?

[00:12:38] Speaker 03:
That's what you're talking about there.

[00:12:39] Speaker 04:
Yes.

[00:12:41] Speaker 03:
Yeah.

[00:12:41] Speaker 03:
And then you didn't give us a site, so I just want to make sure.

[00:12:44] Speaker 03:
Then you say, moreover, titanium's briefing

[00:12:47] Speaker 03:
repeatedly raised the issue of likelihood of confusion, although without that term, by repeatedly explaining the parties were fighting over the exact same mark as used in association with the exact same goods.

[00:12:57] Speaker 03:
See, do you see that?

[00:12:59] Speaker 03:
One thing that's a little challenging for me in an appeal like this is you didn't give me any sites.

[00:13:04] Speaker 03:
Like you didn't give me any sites for your claim that we raised the words likely to confusion one time, but you know, you were able to point to them today.

[00:13:12] Speaker 03:
Can you walk me through, since you didn't in your brief, give me any sites at all for where you supposedly repeatedly explained the parties were fighting over the exact same mark as used on the exact same goods.

[00:13:22] Speaker 03:
Can you show me some sites in your trial brief where you did that?

[00:13:26] Speaker 04:
I understand, Your Honor, and what I'd say is the entire trial... No, I want you to actually show me sites.

[00:13:33] Speaker 04:
Your Honor, I'll readily acknowledge that was an overzealous statement on my part.

[00:13:37] Speaker 04:
I didn't say likelihood of confusion.

[00:13:38] Speaker 04:
I did not.

[00:13:39] Speaker 03:
What I'm alluding to there... No, I want you to... What you said, you said exact same mark.

[00:13:45] Speaker 03:
in association with the exact same goods repeatedly.

[00:13:48] Speaker 03:
You said you repeatedly explained in your trial brief the same mark, same goods.

[00:13:53] Speaker 03:
So where is that in your trial brief?

[00:13:55] Speaker 04:
Your Honor, what I'm referencing there is the fact that we're discussing repeatedly the sales of those same goods.

[00:14:01] Speaker 04:
In other words, we're referencing what I'm trying to describe there.

[00:14:04] Speaker 04:
In my statement there, I'm trying to describe that the entire brief with

[00:14:08] Speaker 04:
taking into account the evidence it's referring to is evidence of screenshots of websites and goods, all the same goods, nuts and bolts stamped with the mark dress up bolts.

[00:14:18] Speaker 04:
That's what I'm referring to.

[00:14:20] Speaker 04:
And I appreciate that may being elegant, but that's what I was attempting to say in that statement, is that in that context, and the office didn't look at any of that evidence.

[00:14:28] Speaker 03:
So is it correct then to say that nowhere in your trial brief did you actually assert that these parties are fighting over the exact same mark as used with the exact same goods?

[00:14:47] Speaker 04:
Your Honor, I suppose we say the mark dress of bolts repeatedly.

[00:14:50] Speaker 04:
I suppose we don't explicitly say the exact same goods.

[00:14:54] Speaker 04:
We say that in reference to the evidence that shows the exact same goods.

[00:14:58] Speaker 03:
All right, let's save a little bit of time for rebuttal.

[00:15:01] Speaker 04:
Thank you, Your Honor.

[00:15:02] Speaker 03:
Let's hear from opposing counsel.

[00:15:07] Speaker 03:
Is it Gwen Grobsky?

[00:15:09] Speaker 00:
Yes, thank you, Your Honor.

[00:15:10] Speaker 03:
Please proceed.

[00:15:11] Speaker 00:
May it please the Court, the standard of review in this case is abuse of discretion.

[00:15:17] Speaker 00:
The Board did not abuse its discretion or act in an arbitrary or capricious way.

[00:15:22] Speaker 00:
It simply followed its own well-established rules that have been affirmed by this Court.

[00:15:27] Speaker 00:
As we saw, there is no dispute here that Titanium's trial brief contained no likelihood of confusion argument.

[00:15:34] Speaker 00:
The board therefore applied TBMP 801 and reached the only conclusion that it could have reached, that titanium waived the likelihood of confusion claim.

[00:15:44] Speaker 00:
The board's opinion was very thorough.

[00:15:46] Speaker 00:
It was articulated.

[00:15:47] Speaker 00:
It had repeated citations to case law, including from this court.

[00:15:52] Speaker 00:
It had repeated citations to the record as well.

[00:15:55] Speaker 00:
The board acted well within its discretion.

[00:15:58] Speaker 00:
This court has already issued rulings that are perfectly consistent with the board's decision.

[00:16:03] Speaker 03:
If the board had, or if their brief had repeatedly said, this is for the exact same mark, verbatim, on the exact same goods, if their brief had sprinkled that throughout repeatedly, would that have sufficed even though the magic word's likelihood of confusion weren't there?

[00:16:19] Speaker 03:
I mean, the likelihood of confusion analysis is largely driven by those two factors.

[00:16:24] Speaker 00:
The short answer is absolutely not, because sprinkling is not nearly enough.

[00:16:28] Speaker 03:
In fact, when you read the line of cases regarding that issue, mostly from this court, the magic word that keeps jumping off the page at me is the word developed, as in did the- OK, suppose that in their argument section, they repeatedly say, in the argument section, there's just no question that the same mark on the same goods, but they just don't use the words likelihood of confusion.

[00:16:51] Speaker 03:
Would that suffice?

[00:16:53] Speaker 00:
No, it would not even be close, actually, because the factors for likelihood of confusion analysis are many.

[00:16:59] Speaker 00:
Around here, it would be DuPont factors, which is a very lengthy list.

[00:17:03] Speaker 00:
Where I am in the Second Circuit, we use Polaroid factors, also a very large list.

[00:17:08] Speaker 00:
In no particular order, it's a lot more complicated than just the match up of the mark and the goods, because we tend to look at things like what is the price point of each company's product?

[00:17:19] Speaker 00:
What is the quality of each company's product?

[00:17:22] Speaker 00:
Has anyone ever been confused?

[00:17:24] Speaker 00:
Has the junior user acted in good faith or bad faith?

[00:17:28] Speaker 00:
There are many factors involved.

[00:17:29] Speaker 02:
Are you fundamentally arguing that you think the argument would have been undeveloped and that's why you don't think it would have been enough to be properly raised?

[00:17:36] Speaker 02:
Is that what your kind of response is to the question posed by Chief Judge Moore?

[00:17:39] Speaker 00:
Yes, they had no appropriate mention of it at all in the argument section, even if they had glossed over it with just the phrase likelihood of confusion.

[00:17:49] Speaker 02:
But you're not contending that it necessarily requires a use of magic words likely of confusion to preserve the argument?

[00:17:55] Speaker 00:
Typically, it would certainly have that in there, but it would be required to break down the DuPont factors used by the trademark office to analyze and determine whether or not there is a likelihood of confusion.

[00:18:06] Speaker 00:
The titanium did precisely none of that.

[00:18:11] Speaker 01:
I recognize you're not the petitioner.

[00:18:14] Speaker 01:
And you make the common sense point that if there were problems with their brief, they can't make up for it with your brief.

[00:18:20] Speaker 01:
But nonetheless, it is striking to me that it doesn't seem like you made any of these arguments below.

[00:18:26] Speaker 01:
That is, I recognize you said on page 850 in your introduction that they have not proven likelihood of confusion.

[00:18:35] Speaker 01:
But you don't go on and make a they don't do DuPont factors, et cetera, et cetera.

[00:18:41] Speaker 01:
And I'm not suggesting you had to, but it is striking to me.

[00:18:43] Speaker 01:
It just seems like from an outsider's perspective that you all really understood that the only thing that truly was in dispute was priority.

[00:18:51] Speaker 01:
because it was essentially the exact same mark on the exact same goods.

[00:18:56] Speaker 01:
Would it be wrong for me to conclude that in reality you all understood that?

[00:19:00] Speaker 00:
No.

[00:19:00] Speaker 00:
In fact, the board even noted that it had reviewed the full evidentiary and the full procedural record, and it concluded that ZSpec never conceded that there was a likelihood of confusion between the marks.

[00:19:11] Speaker 00:
We never conceded that.

[00:19:12] Speaker 00:
Had we received a detailed argument from Titanium on that front, we absolutely would have countered every part of it, or at least addressed every part of it.

[00:19:21] Speaker 00:
We weren't given that opportunity.

[00:19:24] Speaker 01:
Could you address the standing point?

[00:19:26] Speaker 01:
How is it that the board was able to find standing if there's nothing on likelihood of confusion?

[00:19:37] Speaker 00:
The board was able to find standing because as held by this court in a presidential opinion in 2000 in Cunningham versus Laser Golf,

[00:19:47] Speaker 00:
There, the Federal Circuit reiterated that the party seeking cancellation must prove one, standing, and two, of course, valid grounds for cancellation.

[00:19:55] Speaker 00:
Importantly, the court in Cunningham said that standing is the more liberal of those two elements.

[00:20:01] Speaker 00:
Why?

[00:20:02] Speaker 00:
Because it requires only that the party seeking cancellation believe that it is likely to be damaged by the registration.

[00:20:08] Speaker 00:
And the Federal Circuit cited the prior holding of Golden Gate's salami company versus Gulf States paper, another presidential decision that said the same thing.

[00:20:19] Speaker 00:
In terms of pure logic, it makes no sense to say that if a party has standing and has automatically satisfied all trial requirements, trial being necessarily a separate exercise, and trial typically takes place a couple of years after a proceeding is initiated and standing is established.

[00:20:37] Speaker 00:
In fact, using titanium's logic, TBMP 801.01 would be completely superfluous.

[00:20:44] Speaker 00:
We, of course, presume that it is not.

[00:20:47] Speaker 01:
Is the standing based on the allegations in the petition?

[00:20:50] Speaker 01:
And did the petition do enough, at least, to allege likelihood of confusion?

[00:20:55] Speaker 00:
The petition did enough to meet that minimum threshold of standing at that time.

[00:21:07] Speaker 00:
Yes.

[00:21:08] Speaker 00:
Really?

[00:21:09] Speaker 00:
Regarding Titanium's argument that the likelihood of confusion was obvious or implied in its trial brief,

[00:21:17] Speaker 00:
Obviously it's not the board's job to read between the lines and assume what a party meant to argue, but it does not matter that likelihood of confusion was discussed in the original petition way back when at the outset of the case because the petition is not the trial brief.

[00:21:32] Speaker 00:
It also does not matter that the parties may have worked on the confusion issue during discovery, because nothing in discovery is akin to a trial brief.

[00:21:41] Speaker 00:
It also does not matter that titanium had their own applications rejected.

[00:21:45] Speaker 00:
None of it came up in the argument, right?

[00:21:47] Speaker 03:
None of it.

[00:21:51] Speaker 00:
OK.

[00:21:51] Speaker 00:
If no further questions, thank you, Your Honor.

[00:22:02] Speaker 04:
Your Honor, I recognize that.

[00:22:04] Speaker 04:
Thank you, Your Honor.

[00:22:08] Speaker 04:
I'll be brief and certainly field any questions you have.

[00:22:16] Speaker 04:
I'm not trying to sit here and tell this court, oh, we did the exact things we should have done in this brief.

[00:22:24] Speaker 04:
I wish I had one sentence like Judge Stark described.

[00:22:27] Speaker 04:
I really do.

[00:22:29] Speaker 04:
But I also think that it makes sufficient sense here to say, when we reference serial numbers and we say exactly what the office already did,

[00:22:41] Speaker 04:
like I said before, that the left and the right ought to know what they're doing.

[00:22:47] Speaker 04:
And they ought to know what they're doing in the context of a brief that is specifically showing documents that the board said they're not going to look at.

[00:22:54] Speaker 04:
Documents again and again.

[00:22:56] Speaker 04:
These documents that they refused to look at showed stamped nuts and bolts in bags and boxes with dress up bolts written on them or on websites offered for sale.

[00:23:05] Speaker 02:
Do you agree that we review the board's application of its own rules for an abuse of discretion?

[00:23:10] Speaker 04:
I'm sorry, Your Honor.

[00:23:11] Speaker 04:
I didn't hear.

[00:23:12] Speaker 02:
I'm just asking about the standard review.

[00:23:13] Speaker 02:
Do you agree that we review the board's application of its own rules for an abuse of discretion?

[00:23:19] Speaker 04:
I would agree it's an abuse of discretion on its own rules.

[00:23:22] Speaker 04:
I think the standard review might be a little bit more muddled insofar as this isn't a rule that went through the Administrative Process Act, and the statute's silent one way or the other.

[00:23:31] Speaker 04:
The statute just directs cancellations generally.

[00:23:33] Speaker 04:
There's a CFR regarding generally about having briefing.

[00:23:39] Speaker 04:
Point being is, yes, Your Honor, I think that's mostly true.

[00:23:42] Speaker 04:
But we can still examine whether the rule as applied here is arbitrary and capricious.

[00:23:46] Speaker 04:
And I think it is under these exact circumstances.

[00:23:49] Speaker 04:
And that's why I put the qualification on my answer.

[00:23:54] Speaker 04:
Unless there are any further questions, Your Honor.

[00:23:56] Speaker 04:
Thank you for the time today to present this to you.

[00:23:58] Speaker 03:
I thank both counsel.

[00:23:59] Speaker 03:
This case is taken under submission.