[00:00:00] Speaker 05:
We will hear argument next in number 232140, Curtin against United Trademark Holdings.

[00:00:19] Speaker 01:
May please the court.

[00:00:22] Speaker 01:
May it please the court.

[00:00:23] Speaker 01:
The board initially and correctly applied this court's decision in Ritchie to determine that Professor Curtin is entitled to oppose.

[00:00:31] Speaker 01:
She had, as the board found, a real interest in the proceeding and a reasonable basis for that.

[00:00:38] Speaker 01:
After bifurcating the case for trial, the court then changed position.

[00:00:43] Speaker 01:
The board said that the framework from Lexmark applies also to board proceedings.

[00:00:50] Speaker 01:
And based upon that, Curtin.

[00:00:52] Speaker 01:
is not entitled to oppose registration of UTH's trademark.

[00:00:58] Speaker 01:
That's wrong for three reasons.

[00:01:00] Speaker 01:
First, the board's Lexmark framework doesn't apply to opposition proceedings.

[00:01:06] Speaker 01:
The court's decision in Richey does.

[00:01:08] Speaker 01:
Second, even under Corkmore early, even if it applies, Corkmore says that.

[00:01:12] Speaker 05:
And I'm sorry, and that's because the 1125 action was a cause of action in court and opposition is a cause of action to trigger an administrative proceeding or for additional reasons or for different reasons?

[00:01:29] Speaker 01:
Because it is an administrative proceeding, not a cause of action in court, the way that the court was addressing it in Lexmark.

[00:01:38] Speaker 02:
But in Lexmark, wasn't the court construing 1127, which applies to the chapter as a whole, which includes 1063 as well as 1064?

[00:01:47] Speaker 01:
It was discussing the interests of the Lanham Act.

[00:01:50] Speaker 01:
1127 discusses the interest the Landmark was intended to protect.

[00:01:56] Speaker 01:
And that's that part of the court's discussion.

[00:01:58] Speaker 01:
But the overall discussion from the court in Lexmark is about causes of action.

[00:02:01] Speaker 01:
And that's where the zone of interest test and the proximal cause analysis come from is what was traditionally called or previously called prudential standing.

[00:02:10] Speaker 01:
And it's that line of cases that then spawn this.

[00:02:13] Speaker 01:
And that discussion, all of that discussion, is about the limits on courts.

[00:02:18] Speaker 01:
And going back to whether you're talking about the Clayton Act when they first were coming up with the zone of interest test, it was about whether or not they have a private right of action in court.

[00:02:29] Speaker 01:
Same with the APA.

[00:02:31] Speaker 01:
They were trying to determine whether or not there were limits on judicial review.

[00:02:34] Speaker 01:
And that's where the zone of interest test comes up as well.

[00:02:36] Speaker 01:
So all of those parts are about the limits on the judiciary and what happens in court.

[00:02:42] Speaker 01:
And that's the discussion that then the court takes

[00:02:45] Speaker 01:
and changes the nomenclature for it from provincial standing.

[00:02:49] Speaker 05:
So I think your brief makes reference to the body of law that recognizes that Article 3 requirements don't apply in agencies, and they do apply in courts, and that's an important difference.

[00:03:04] Speaker 05:
Why should language that authorizes

[00:03:18] Speaker 05:
for an Article III court be subject to a different kind of analysis, all subject to the general label that you have to be to figure out whether you're one of those people.

[00:03:35] Speaker 05:
You have to be within the zone of interests of the statute defining the wrong that

[00:03:45] Speaker 05:
in either case, whether it's a go to court or go to an agency?

[00:03:53] Speaker 01:
So there are particular interests that motivate the limits on who can participate in a variety of different actions.

[00:04:03] Speaker 01:
The courts have a very particular view on that.

[00:04:05] Speaker 01:
That's where the zone of interest test comes in.

[00:04:07] Speaker 01:
That's where approximate causation comes in, what was traditionally prudential standing.

[00:04:13] Speaker 01:
is linked into what the common law had on limits on civil remedies in court.

[00:04:18] Speaker 01:
And now, there are limits and there are interests on who can participate before an administrative agency.

[00:04:26] Speaker 01:
But what we're talking about are the interests unique to those different bodies.

[00:04:31] Speaker 01:
The language itself is any person who would be harmed or believes they would be harmed and may file a notice of opposition.

[00:04:39] Speaker 01:
That's very broad.

[00:04:40] Speaker 01:
And the court, you know.

[00:04:42] Speaker 05:
Well, that's not broad enough to have allowed static control to make its claim.

[00:04:47] Speaker 05:
Right and against Lexmark Yeah, well, so even though you know plausible Basis even reasonably believing that they were right But in Lexmark what they were doing is applying a body of law on the limits to actions in federal court

[00:05:08] Speaker 05:
The court explained in Benedict v. Spear and a variety of others that what you're talking about are- And in your view, if you were right that you could bring the opposition in the agency and suppose you lost, what then?

[00:05:29] Speaker 05:
Lost on the- Lost before the agency.

[00:05:32] Speaker 05:
You want to go to court, right?

[00:05:33] Speaker 05:
Yeah.

[00:05:34] Speaker 05:
On the same cause of action or what?

[00:05:36] Speaker 05:
Or a different cause of action?

[00:05:38] Speaker 01:
Well, then it would be an appeal from the board's determination.

[00:05:42] Speaker 05:
And does any zone of interest test apply then?

[00:05:48] Speaker 01:
I wouldn't think so, no.

[00:05:53] Speaker 01:
It would be just an appeal from the administrative agency.

[00:05:56] Speaker 01:
Well, you'd still have to have Article III.

[00:05:59] Speaker 05:
Correct.

[00:06:00] Speaker 05:
So let me ask you kind of on the substance.

[00:06:05] Speaker 05:
On its face, there's a plausible claim that a consumer of a mark holder product could in fact be harmed by higher prices or diminished quality or variety if that mark holder is invoking its mark to suppress

[00:06:31] Speaker 05:
others from offering you a product and it's plausible on its face that if you say that that potential harm would be alleviated if you can show that this mark is actually invalid.

[00:06:50] Speaker 05:
Is there any case where that consumer standing

[00:06:58] Speaker 05:
and I hear I'm using standing in the old-fashioned sense, not to be limited to Article 3.

[00:07:04] Speaker 05:
A has been discussed, but B has been recognized.

[00:07:07] Speaker 05:
And my second question is going to be, not just in trademark law, what about in patent law?

[00:07:18] Speaker 01:
Other than that, there's a decision from the board, Flanders 2, or the guitar pickup, and I believe a consumer wanted the challenge in that proceeding.

[00:07:28] Speaker 01:
That's one that I can think of, but I can't think of others where a consumer has been in.

[00:07:34] Speaker 01:
But that's the one decision that comes to mind.

[00:07:37] Speaker 05:
And are you familiar with patent law to some extent?

[00:07:40] Speaker 05:
To some extent.

[00:07:42] Speaker 05:
So the patent law analogy to this, at least one that

[00:07:45] Speaker 05:
began thinking about is a person who wants to buy a particular product, as far as I know, tell me if I'm wrong, can't bring a lawsuit against the patentee saying your patent is invalid and you're out there enforcing it against people who are thereby deterred from creating the same product that I would like to buy.

[00:08:08] Speaker 05:
I mean, it's a plausible chain of action to harm.

[00:08:15] Speaker 05:
As far as I know, that doesn't occur, does it?

[00:08:20] Speaker 05:
So why should this be any different?

[00:08:24] Speaker 01:
Well, first, this is a proceeding before an agency as part of the administrative process.

[00:08:30] Speaker 01:
So the analogy would be comments on rules or comments on a variety of things.

[00:08:37] Speaker 01:
That happens all the time.

[00:08:38] Speaker 01:
I don't think that's a very good analogy.

[00:08:40] Speaker 03:
I mean, the analogy to

[00:08:42] Speaker 03:
patent law might be if somebody could file an administrative action at the PTAB or something like that.

[00:08:49] Speaker 01:
But there are the particular provisions that govern that who may file those in the PTAB.

[00:08:55] Speaker 03:
I mean, there's a difference between notice and comment rulemaking and agency adjudications.

[00:09:01] Speaker 03:
And this is an agency adjudication type case, not just notice and comment rulemaking.

[00:09:07] Speaker 01:
Well, except that it's

[00:09:10] Speaker 01:
I would say cancellation proceeding may be closer to an adjudication where this is part of the process of getting the mark in the first place.

[00:09:19] Speaker 01:
You have to file an application.

[00:09:21] Speaker 01:
Examiner has to look at it.

[00:09:22] Speaker 01:
It gets published to the public to see whether or not those interested want to comment, provide their views on it.

[00:09:29] Speaker 01:
It's only after that process is complete that the mark is either registered or not registered.

[00:09:34] Speaker 01:
So that looks a lot more like a notice and comment proceeding than it does

[00:09:40] Speaker 01:
Anyone can just jump in and say, I'm injured, or I see a likelihood that I'm going to be injured in the next little bit by you are using the mark.

[00:09:48] Speaker 05:
Would a patent-specific, I bet it's a inter-party's review proceeding, which any person, except I guess the government itself, can initiate, would that be a relevant analogy?

[00:10:05] Speaker 05:
Uh, as you don't have to have, um, yeah, I mean, a consumer can file a challenge to the validity of a patent by initiating an inter-parties review.

[00:10:17] Speaker 01:
I will say, I, I believe it's broader than what is in court, but I haven't studied to know exactly what the limits are on that analogy.

[00:10:26] Speaker 05:
But in, in, in, in trademark.

[00:10:28] Speaker 05:
world, whether including, you know, state common law trademark, has it ever been the case that the purchaser from a mark holder

[00:10:40] Speaker 05:
has been recognized as one of the people that can bring a lawsuit to, and put aside the distinction now between agency and law and court, to challenge the validity of the mark that the mark holder is wielding in order to suppress competition.

[00:11:03] Speaker 01:
I'm not aware of the case on those grounds, no.

[00:11:10] Speaker 01:
But again, going back to the standards for court and for agencies are different.

[00:11:15] Speaker 01:
And that's what this case is really about, is who can participate in that initial process of getting the mark.

[00:11:22] Speaker 01:
And as we indicate, we think that it's broad enough.

[00:11:25] Speaker 03:
Well, doesn't that suggest court memoir is wrong?

[00:11:30] Speaker 01:
We do believe that corporate law was decided wrong in calling it a cause of action, but we think that there are distinctions between a cancellation proceeding and an opposition proceeding that are relevant.

[00:11:39] Speaker 01:
A cancellation proceeding does look a little bit more like an adjudication.

[00:11:43] Speaker 03:
So if we're not, I mean, obviously we can't overrule corporate law.

[00:11:48] Speaker 03:
We have to go on bond.

[00:11:50] Speaker 03:
So your argument depends on us looking at any person on cancellation different from any person in opposition.

[00:11:58] Speaker 01:
Yes.

[00:12:00] Speaker ?:
OK.

[00:12:00] Speaker 01:
And the context matters.

[00:12:02] Speaker 01:
The context in which it arises, I think, matters when you're looking at the overall process.

[00:12:07] Speaker 01:
And there are linguistic differences, too.

[00:12:10] Speaker 01:
Cancellation's talking about if you are injured or will be injured.

[00:12:14] Speaker 01:
And opposition proceeding is you would be injured.

[00:12:18] Speaker 01:
It's more subjunctive, hypothetical, not necessarily having the closeness and connection that you would expect in something else.

[00:12:26] Speaker 01:
I see I'm in my rebuttal, so I'll reserve the remainder of my time for rebuttal.

[00:12:30] Speaker 05:
Actually, let me just ask you, and I want to ask the two other counsel we're going to hear from too.

[00:12:39] Speaker 05:
Is it your understanding that if there's an affirmance of the dismissal of the opposition, that there is still a mechanism short of a cancellation petition for the PTO to decide whether it really, really ought to issue this registration?

[00:13:01] Speaker 01:
I believe that there is still authority within the agency to visit, yes.

[00:13:21] Speaker 04:
May it please the court, Eric Pelton for appellee.

[00:13:25] Speaker 04:
Appellant here is a mere intermediary and does not have an entitlement to a cause of action to oppose the trademark application.

[00:13:33] Speaker 04:
As counsel acknowledged, there is no authority for a purchaser or consumer to challenge a trademark.

[00:13:40] Speaker 04:
Lexmark is the clear standard that applies here.

[00:13:43] Speaker 04:
And when applied, Lexmark makes it clear that appellant, a consumer of dolls, is not entitled to bring a cause of action.

[00:13:51] Speaker 04:
So why should that be so?

[00:13:56] Speaker 05:
In antitrust law, if you were in many contexts thinking about which is a better plaintiff, the competitor or the consumer, in general, the consumer is the favored plaintiff.

[00:14:10] Speaker 05:
even though much of the harm works through effects on rivals.

[00:14:21] Speaker 05:
Your view here is, I'm not going to dispute right now that there doesn't seem to be any recognition of this, but why should the consumer be out of luck as a challenger?

[00:14:36] Speaker 05:
Well, first, that's the body of law in cases that we have.

[00:14:40] Speaker 04:
But I will acknowledge, my entire career, I've been a trademark attorney.

[00:14:45] Speaker 04:
I don't know a lot about antitrust.

[00:14:47] Speaker 04:
I don't know a lot about patents, despite having been a trademark examiner at the Patent and Trademark Office.

[00:14:54] Speaker 04:
Trademark is inherently a commercial interest, even though there is, of course, a public side to that.

[00:15:05] Speaker 05:
I mean, I guess ask or note this.

[00:15:06] Speaker 05:
The phrase commercial interest is a, it seems to me, an unhappy phrase.

[00:15:14] Speaker 05:
Consumers have a commercial interest.

[00:15:15] Speaker 05:
You mean a seller's interest when you say commercial.

[00:15:19] Speaker 04:
If you want to put it that way.

[00:15:21] Speaker 04:
But if the tenuous chain of events that appellant theorizes could happen if the registration were to issue,

[00:15:34] Speaker 04:
competitors would inherently be impacted as well.

[00:15:39] Speaker 04:
And competitors, other manufacturers, other sellers, would have causes of action and entitlement to acquittal.

[00:15:49] Speaker 05:
So one answer perhaps to my question, why should that be so, is the better plaintiff theory.

[00:15:55] Speaker 05:
There's a better plaintiff.

[00:15:57] Speaker 05:
And in antitrust, sometimes not, because sometimes the competitor is in cahoots if it's a section one, mostly a section one problem, but not so for section two.

[00:16:08] Speaker 05:
So there's a better point of theory that might underlie the apparent absence of recognition of a right of a consumer to challenge a mark holder's mark.

[00:16:19] Speaker 04:
And over decades of trademark law since the Lanham Act, many

[00:16:24] Speaker 04:
applications and many registrations have been challenged by competitors on all sorts of grounds.

[00:16:31] Speaker 05:
When you say there's no case law recognizing a consumer's right to do this, is there case law

[00:16:38] Speaker 05:
recognizing the opposite family recognizing the absence of this right or are we on essentially fresh ground.

[00:16:47] Speaker 04:
Well I think we're instructed by Lexmark to look at the statute and the zone of interest and if we look at section 1127 of the Lanham Act.

[00:16:56] Speaker 04:
It makes it clear.

[00:16:58] Speaker 05:
I think you're now not answering my question.

[00:17:01] Speaker 05:
When you say there's no case law, I don't see that anybody has cited any.

[00:17:04] Speaker 05:
No case law recognizing the consumer right.

[00:17:06] Speaker 05:
Is there a case law saying there is no such right?

[00:17:10] Speaker 04:
I'm not aware of any case law that explicitly shuts that door.

[00:17:15] Speaker 04:
But again, under Lexmark and under Corquamore, we have to look to the zone of interest.

[00:17:21] Speaker 04:
And Corquamore applies to 1064 cancellations.

[00:17:25] Speaker 04:
And opposition is, in almost every respect, the same as a cancellation, other than the time right before the registration issues or after the registration issues.

[00:17:38] Speaker 04:
And the language in the statute about the two claims under section 1064 and text 63 is essentially identical.

[00:17:49] Speaker 04:
There's no reason to believe that

[00:17:54] Speaker 04:
as applied in Corcamoore, Lexmark wouldn't also apply to an opposition under the Lanham Act.

[00:18:06] Speaker 05:
By the way, did you say you're not really familiar with patent law?

[00:18:10] Speaker 05:
I did say that.

[00:18:16] Speaker 04:
For the reason set forth today and in our brief, we ask the court to affirm the decision of the board.

[00:18:21] Speaker 04:
And I'll see the rest of my time to my friends from the USPTO, unless there's other questions.

[00:18:27] Speaker 03:
I think your friend might be familiar with patent law.

[00:18:38] Speaker 00:
Good morning, Your Honors, and may it please the court

[00:18:41] Speaker 00:
The board correctly applied Lexmark's zone of interest to a trademark opposition proceeding under this court's case law.

[00:18:49] Speaker 00:
This court held that Lexmark applies in cancellation proceedings and that the similarities, linguistic and functional, between cancellation proceedings and opposition proceedings mandate the same requirements.

[00:19:03] Speaker 00:
An opposition, this court held in Corcamore that a cancellation proceeding is a cause of action.

[00:19:09] Speaker 00:
And since that's the binding precedent of this court, the same applies to opposition proceedings.

[00:19:15] Speaker 00:
An opposition proceeding is an adjudication at the office where a person petitions for cancellation of the opposition.

[00:19:24] Speaker 00:
So it's an adversarial proceeding, and the TTAB makes the decision.

[00:19:27] Speaker 00:
So there's no reason to distinguish an opposition proceeding from a cancellation proceeding.

[00:19:33] Speaker 00:
And there are ways that consumers can participate in the examination process.

[00:19:40] Speaker 00:
There's letters of protest that Curtin could have filed both before and after publication of the Rapunzel mark, which would have been the situation like

[00:19:50] Speaker 00:
notice and comment, or a consumer who doesn't have to have any sort of statutory standing, meaning that in the old traditional way, to bring those sort of letters of protest.

[00:20:01] Speaker 00:
It would be considered.

[00:20:02] Speaker 05:
What would have happened if there had been a letter of protest?

[00:20:05] Speaker 05:
Is the examiner free to ignore it?

[00:20:08] Speaker 00:
If there had been a letter of protest, after publication, it would have been a prima facie case of merely descriptive.

[00:20:15] Speaker 00:
And if it meant that it would have been gone to the examiner, the examiner would have had jurisdiction then to consider the letter of protest and consider it.

[00:20:23] Speaker 05:
An obligation to consider it or just authority to consider it?

[00:20:28] Speaker 00:
Authority.

[00:20:29] Speaker 00:
I mean, an obligation authority, it's not part of the public record, but the examiner will consider it.

[00:20:36] Speaker 00:
And if it came from petitions.

[00:20:38] Speaker 05:
No, I think you understand the distinction.

[00:20:39] Speaker 05:
The examiner could read it and say, this is interesting, into the trash.

[00:20:44] Speaker 00:
The examiner would consider it.

[00:20:48] Speaker 00:
If it goes to the examiner after publication had met a prima facie case of showing merely descriptive, the examiner would consider it.

[00:20:55] Speaker 00:
And obviously, there are also inherent authority in the agency to reconsider decisions in cases where we think that the mark does not need the

[00:21:07] Speaker 00:
statutory provisions of the Lanham Act.

[00:21:09] Speaker 05:
Yeah.

[00:21:09] Speaker 05:
Can you, can you elaborate on that?

[00:21:11] Speaker 05:
I think you did have a page or two or something in your brief saying, really?

[00:21:15] Speaker 05:
There's going to be a trademark on Rapunzel?

[00:21:17] Speaker 05:
Really?

[00:21:17] Speaker 05:
So, but don't worry about that.

[00:21:19] Speaker 05:
We can still do something.

[00:21:20] Speaker 05:
Can you explain what you can still do?

[00:21:22] Speaker 00:
So we just want to make clear to this court that the merits are not before this court, and that the agency does have inherent authority to reconsider the Rapunzel mark in light of all the evidence that's been produced in the summary judgment briefing in this opposition proceeding.

[00:21:38] Speaker 05:
And as a formal matter, how would that work?

[00:21:41] Speaker 05:
So if we were to affirm this is what a dismissal of the opposition, does the

[00:21:47] Speaker 05:
TTAB have to give the examiner, return the matter to the examiner, or what's supposed to happen?

[00:21:56] Speaker 00:
In the TMEP, the procedures, it says that if the director becomes aware of it, that the director will provide jurisdiction to the examiner to

[00:22:07] Speaker 00:
to give a new refusal.

[00:22:09] Speaker 00:
And that will be the examiner's decision.

[00:22:12] Speaker 00:
So that is the process that's allied out in the procedure.

[00:22:16] Speaker 03:
How does the director become aware of it?

[00:22:19] Speaker 00:
Well, the director is representing the decision in court.

[00:22:22] Speaker 00:
So the director is aware of the decision.

[00:22:25] Speaker 00:
the decision.

[00:22:26] Speaker 03:
The director is actually going to get notice of this particular case.

[00:22:30] Speaker 00:
There's no, I mean, the formal process that what goes on to make people aware, I'm not entirely sure.

[00:22:36] Speaker 00:
I just know that the agency is aware of this decision and the mark and the evidence that's been produced in this opposition proceeding.

[00:22:46] Speaker 00:
And while no decision at this point, no decision has been made, the agency is aware of it and has an inherent authority to reconsider

[00:22:54] Speaker 00:
the decision after the publication.

[00:22:57] Speaker 03:
Are we going to get this case again when the director changes her mind and says no trademark and get an appeal?

[00:23:06] Speaker 00:
If there's a refusal and it goes to the TTAB and they appeal to this court, yes, there could be this case could reappear on the merits for the sport.

[00:23:14] Speaker 05:
So in your opening remarks, you, I think, carefully and repeatedly included the phrase, under this court's precedent.

[00:23:25] Speaker 05:
Put aside this court's precedent now.

[00:23:27] Speaker 05:
And I want to understand.

[00:23:30] Speaker 05:
why the other side is wrong, precedent aside, or this court's precedent aside, on the two things that I guess I'm interested in.

[00:23:41] Speaker 05:
One is the distinction between a ability to go to court and an ability to go to the agency.

[00:23:50] Speaker 05:
And second, why it should or should not make sense that a consumer plausibly harmed by a

[00:23:59] Speaker 05:
A mark holder's wielding of an invalid mark shouldn't be able to or has never been recognized to be able to challenge that mark.

[00:24:12] Speaker 00:
Starting with the first, it gets at the idea of this being a cause of action in court versus brought before the PTO.

[00:24:21] Speaker 00:
I mean, Corkomore did say as a cause of action,

[00:24:24] Speaker 00:
The distinction that Curtin wants to make is it's not

[00:24:30] Speaker 00:
the right of action in court versus in the administrative agency.

[00:24:35] Speaker 00:
Even before Lexmark, this court has always applied a test to whether someone can bring an opposition or cancellation proceeding, the real interest test and reasonable belief in damages, without calling the cancellation or opposition proceeding a cause of action.

[00:24:52] Speaker 00:
It was just that under 1063, the person who would be damaged is someone who had a real interest

[00:24:59] Speaker 00:
in the proceeding, not just an intermediary who is interested in the purity of the register and a reasonable belief in damages.

[00:25:06] Speaker 00:
In this court held in Corcamoore, that is essentially the same test.

[00:25:10] Speaker 00:
It's not substantively different than the zone of interest test and proximate causation.

[00:25:15] Speaker 00:
So whatever language this court uses, a cause of action, or statutory standing is what it used to be called, it's some

[00:25:28] Speaker 00:
interpretation of 1063, a statutory interpretation of who then is entitled to bring a cancellation or opposition proceeding.

[00:25:37] Speaker 00:
And the distinction between whether it's in court or whether it's in the PTO, it doesn't make a difference in terms of how this court has been adjudicating who gets that entitlement.

[00:25:51] Speaker 05:
Okay, what about the more substantive right question?

[00:25:56] Speaker 05:
The idea that consumers and their interests just don't get to challenge the validity of a markholders mark even though even if there's a pretty plausible story about why the presence of that mark and its wielding can harm the consumer without very much indirectness.

[00:26:17] Speaker 00:
The Congress's intent in passing the Lanham Act and the purposes put in 1127 are really interests in unfair competition, preventing deceptive marks and deceptive

[00:26:33] Speaker 00:
associations.

[00:26:35] Speaker 00:
And those interests, as the Supreme Court held in Wexner, are commercial interests.

[00:26:41] Speaker 05:
They're the interests of the people who are acting in commerce, and not those- And here again, by here you mean, here you're somehow, weirdly to my mind, excluding the consumer from having a commercial interest.

[00:26:53] Speaker 05:
You mean seller's interests.

[00:26:54] Speaker 00:
I'm thinking of a commercial interest as sellers in the marketplace, and the consumer is having an economic interest.

[00:27:00] Speaker 00:
They have an economic interest and harm.

[00:27:02] Speaker 00:
But if you said they have a commercial interest, then the definition of commercial sort of disappears.

[00:27:08] Speaker 00:
I think commercial interest, as this court has said in Lucia, the case we provided in the 28-J letter, is that the intent of Congress was to give

[00:27:17] Speaker 00:
competitors and people with commercial interests a cause of action, not consumers.

[00:27:22] Speaker 03:
It just seems kind of odd given that so much of whether a trademark can be registered or not under the DuPont factors, particularly revolve around what the consumers are going to, how they're going to understand the mark.

[00:27:38] Speaker 03:
So if it's so intricately intertwined with the law, why wouldn't they have a statutory cause of action under this?

[00:27:47] Speaker 00:
They're of interest in likelihood of confusion because it's the sellers who don't want to be their consumers to be confused.

[00:27:54] Speaker 00:
So they have an interest in, and the determination is what the people in the marketplace will think when they see those marks.

[00:28:02] Speaker 00:
But that still doesn't give even the hoodwink consumer who bought the wrong product a cause of action.

[00:28:09] Speaker 03:
Is the difference between this and IPR just statutory language?

[00:28:13] Speaker 00:
I think that's right, because the IPR is any person except the patent owner can bring an IPR.

[00:28:18] Speaker 03:
And this is any person too, but then it has that qualifying language, which you think is enough to narrow the category of any person.

[00:28:27] Speaker 00:
Right, any person who believes they would be damaged by registration of the mark.

[00:28:32] Speaker 00:
And ever since Lipton in 1982, this court has always not read that literally, but to be a person who has a real interest and reasonable belief in damages.

[00:28:42] Speaker 00:
So that's the difference.

[00:28:43] Speaker 00:
It's the statutory grant that gets someone into the agency to bring an adjudicate procedure.

[00:28:50] Speaker 00:
Unless this court has any other questions.

[00:28:52] Speaker 00:
Thank you, Your Honor.

[00:28:53] Speaker 00:
Thank you.

[00:29:02] Speaker 01:
Couple of points, Your Honors.

[00:29:04] Speaker 01:
We don't disagree that a lot of this comes down to the language of the statute and that there are limits placed on it.

[00:29:10] Speaker 01:
enriching, going back to Lipton, it's always about limiting it to the context of the agency, what matters of that particular body.

[00:29:18] Speaker 01:
And that's the distinction between Lexmark and what happens before an administrative agency.

[00:29:23] Speaker 01:
With regard to the purposes of the landmark, it absolutely has everything to do with consumers.

[00:29:28] Speaker 01:
Consumers are a huge part of it.

[00:29:30] Speaker 01:
And in fact, going back to Park and Fly, the Supreme Court's decision on that, they recognize that a big part of

[00:29:36] Speaker 01:
The purpose of the Lanham Act is to protect the interest of consumers in getting the products they want and seeking out the information that they want about competing products.

[00:29:44] Speaker 01:
Same with the Seventh Circuit's decision in door systems, where they recognize that if you had a generic mark,

[00:29:51] Speaker 01:
Essentially, you're impacting consumers by taking away their ability to find out which products they want and how to get at those particular products.

[00:29:58] Speaker 01:
So the interests of the consumers are at the heart of the Lanham Act.

[00:30:01] Speaker 01:
And to exclude them arbitrarily doesn't make a lot of sense, in our opinion.

[00:30:05] Speaker 05:
So if you look at that, what is it, 1127 paragraph about the intent of this chapter, which is the item on that list that you think best captures the interest here?

[00:30:21] Speaker 01:
Probably the deceptive marks in making sure that the marks aren't used improperly is probably one of them.

[00:30:38] Speaker 01:
But there are other interests, as in that Park and Fly recognized.

[00:30:42] Speaker 01:
So Park and Fly comes before Lexmark and recognized that a purpose of the Lanham Act is to ensure that consumers have access to the products they want.

[00:30:51] Speaker 01:
And the Senate report itself says that a purpose of the Lanham Act is to protect the interests of consumers in getting the products they want.

[00:30:58] Speaker 01:
And with respect to the commercial interests, we absolutely agree.

[00:31:02] Speaker 01:
There is a commercial interest.

[00:31:03] Speaker 01:
She says that the prices are going to go up.

[00:31:06] Speaker 01:
And as a consumer, that impacts her.

[00:31:08] Speaker 01:
The Lanham Act defines commerce to be the broadest extent that Congress can have, so anything in commerce.

[00:31:13] Speaker 01:
What all my colleagues are doing is trying to limit it down to businesses and business interests, but it goes beyond that.

[00:31:22] Speaker 01:
It goes to consumers as well as to businesses.

[00:31:25] Speaker 01:
And for these reasons, we ask that you reverse and remit.

[00:31:28] Speaker 05:
Thank you.

[00:31:29] Speaker 05:
Thank you.

[00:31:29] Speaker 05:
Thanks to all counsel.

[00:31:30] Speaker 05:
The case is submitted.