Designing Effective Surveys at the Trademark Trial and Appeal Board.pdf

Designing Effective Consumer Surveys at
the TTAB
J. Michael Keyes
Consumer Survey Expert & IP Litigation Partner
February 1, 2024
1

My Background
2
• IP Litigation Partner, Dorsey
in Seattle
• Master’s Degree in Survey
Research & Data Analysis
• Lead Dorsey’s Consumer
Insights Group

What We Will Cover Today
1. Background on Survey Research
2. Process, Timing and Costs, Controls
3. Possible Alternatives to Survey Research
4. Case Studies at the TTAB
3

Coca-Cola’s Foray into Survey Evidence—1920s
5

The Early Days of Survey Research—
“Census-Type” Survey Evidence
6
Matter of James S. Kirk & Co., 12 F.T.C. 272, 289 (1928)
(emphasis supplied)
“The attorneys and the trial
examiner traveled throughout
the country for the purpose of
taking the testimony of []
witnesses. About 700 such were
subpoenaed to testify at
Spokane .... [T]estimony has
caused the F.T.C. to waste
hundreds of thousands of
dollars.”

The Early Days of Survey Research
—Humble Beginnings
7
For apparel
Triangle Publ'ns, Inc. v. Rohrlich, 167 F.2d 969, 971 (2d
Cir. 1948)

8
“Competently to inform ourselves, we should
have a staff of investigators like those supplied
to administrative agencies. As we have no
such staff, I have questioned some adolescent
girls and their mothers and sisters, persons I
have chosen at random…
***
“I admit that my method of obtaining such
data is not satisfactory.”
Triangle Publ'ns, Inc. v. Rohrlich, 167 F.2d 976 (Frank,
J., dissenting)(emphasis supplied).
Judge Jerome Frank
The Early Days of Survey Research
—Humble Beginnings

Survey Research in Federal Courts
(and on the Rise!)
11
• January 2004 - December 2013
= 636 decisions
= 855 decisions

Survey Research at the TTAB
(and also on the Rise!)
12
= 24 decisions
= 52 decisions

Survey Research and the Supreme Court
United States PTO v. Booking.com B.V., 140 S. Ct.
2298, 2307 n.6 (2020).
13

Survey Research and
the Supreme Court
Jack Daniel's Props. v. VIP Prods., 143 S. Ct. 1578 (June 8, 2023) 14

Litigation Surveys Before Congress
Anti-Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 684
F.2d 1316, 1326 (9th Cir. 1982)
Court adopted a “consumer motivation” survey—i.e., what “drove” the purchasing decision

Litigation Surveys Before Congress
Trademark Clarification Act of 1984, Pub. L. No. 98-
620 (codified at 15 U.S.C. § 1064)
Congress clarified that the
“primary significance” of
the trademark is the test
for assessing whether it has
become “generic.”

USPTO Surveys: Process, Timing and Costs,
and a Word on Controls
17

18
“Survey evidence, market research, and
consumer reaction studies are relevant in
establishing acquired distinctiveness and
secondary meaning.
***
The applicant must document the
procedural and statistical accuracy of this
type of evidence and carefully frame the
questions contained therein.”
TMEP Addresses Use of Survey Evidence
TMEP 1212.06(d)(emphasis supplied))

Overview of How the Process Works (Ideally)…
19
1. Trademark counsel identifies the issue calling for research
2. Survey expert retained to design an appropriate questionnaire
3. Counsel and expert identify the appropriate survey population
4. Survey launched
5. Survey responses analyzed by expert and written report issued
6. Examiner or TTAB find survey results persuasive
7. Everybody’s happy!

Timing and Costs
20
• Give yourself at least 60 days from start to finish
• Will take time to address a number of items:
 Typically there’s “back and forth” on survey design
 Data collection
 Review data and write report
• Costs driven by data collection, expert’s time

A Word on the Use of “Controls” in Surveys
• The purpose of a control is to filter
out (or subtract) “noise” in the
survey data to arrive at a “net” result
• Think of “controls” used in consumer
surveys like “placebos” used in
pharmaceutical drug trials
21

Standard for a Proper Control
“In designing a survey-experiment, the
expert should select a stimulus for the
control group that shares as many
characteristics with the experimental
stimulus as possible, with the key
exception of the characteristic whose
influence is being assessed.”
Reference Guide on Survey Research, Shari
Diamond, p. 399.
22

Survey Respondents Randomly Assigned to Either
“Test” or “Control” Cells
24
“Test” Stimulus “Control” Stimulus

25
• Modified Bottle Shape
• Removed Offending Label
• Kept “Bad Spaniels” Name,
Doggy Image, and Bottle
Color
Control Stimulus

26
Test Cell Results Control Cell Results
29.4% “Jack Daniel’s” .5% (1 respondent) “Jack
Daniel’s”
29.4%
minus
.5%
equals
28.9%
“Net” Confusion

Best Practices and Standards for
Conducting Survey Research
27

28
Dr. Shari Diamond
Reference Guide on Survey Research

Are There Alternatives to Hiring a
Survey Expert at the TTAB?
30

Maker's Mark Distillery, Inc. v. Bowmaker's Whiskey Co., 2021
TTAB LEXIS 445 (Trademark Trial & App. Bd. October 29, 2021)
31
Applicant
Opposer
Use of Internal Marketing Study

32
• To show commercial strength, Maker’s Mark submitted annual brand
awareness study conducted by marketing firm in ordinary course of
business
• Report showed 69% of respondents age 22-59 were “aware” of
Maker’s Mark

33
TTAB gave 69% finding little weight because methodology was
unexplained:
• What questions were asked?
• Were they clear and non-biased?
• What were respondents shown? The word mark or the red wax
trade dress (not at issue)

34
Internal marketing studies conducted in
the normal course can be offered to show
strength of the mark.
But Remember:
“The applicant must document the
procedural and statistical accuracy of this
type of evidence and carefully frame the
questions contained therein.”
Important Takeaway
TMEP 1212.06(d)(emphasis supplied))

35
Internal Marketing Study or Expert Survey?
It Matters
Luxco, Inc. v. Everwild Spirits, LLC, 2023 TTAB LEXIS 105
(Trademark Trial & App. Bd. March 24, 2023)
Opposer Applicant

36
(Trademark Trial & App. Bd. March 24, 2023)
Applicant
• Applicant sought to introduce
“brand awareness” survey
conducted for that case
• Did not disclose survey as part of
its expert witness disclosures but
instead as part of its disclosures
during testimonial period
Internal Marketing Study or Expert Survey?
It Matters

37
TTAB Refused to Consider Survey
(Trademark Trial & App. Bd. March 24, 2023) (internal
citations omitted)
“A survey offered in litigation before the Board
is not a freestanding piece of evidence, but is
instead offered as the basis for expert opinion
testimony. On the other hand, a survey need
not always be introduced as an
"expert survey," or by an expert witness, in
order to be admissible; the Board has held that
brand awareness studies commissioned in the
ordinary course of business are admissible as
evidence of consumer recognition of marks.”

Starbucks Corp. v. Mts. & Mermaids, LLC, 2023 TTAB LEXIS 187
(Trademark Trial & App. Bd. May 8, 2023) 38
Opposer Applicant
External Brand Rankings Instead of
Consumer Survey
Applied for “SIREN’s
BREW” word mark for
coffee and shirts

(Trademark Trial & App. Bd. May 8, 2023)
39
Starbucks Alleged LOC and Blurring of
Famous Siren Designs

40
To Support Fame, Starbucks Relied on (Among
other things) Third Party Brand Value Rankings
#24
#31
#45

Starbucks Corp. v. Mts. & Mermaids, LLC, 2023 TTAB LEXIS 187,
*74 (Trademark Trial & App. Bd. May 8, 2023)
41
• TTAB found brand rankings had
“lack of clarity” that they pertained
to the Siren design at issue (as
opposed to the STARBUCKS
standalone word mark)
• All three were from 2019
• Dilution claim dismissed
TTAB Found Rankings Not Indicative of “Fame”

Important Takeaways
42
 If relying on brand ranking studies developed by
third parties, make sure that such rankings can be
tied to the marks at issue in the proceeding.
 Also, consider “when” those rankings occurred. For
dilution, need to show “fame” before applicant
started using the mark.

Audemars Piguet Holding, S.A. v. Haas Outdoors, Inc., 2023
TTAB LEXIS 265 (Trademark Trial & App. Bd. July 14, 2023) 43
“Industry Expert” is Not a Proxy for
Consumer Survey
Opposer Applicant

44
• Instead of consumer survey, Audemars Piguet’s
industry experts testified ROYAL OAK’s fame in
luxury watch market extends to general
population
• TTAB gave testimony little weight because it was
“anecdotal and not based on real data” and
“neither witness has experience with brand
recognition surveys”
TTAB LEXIS 265 (Trademark Trial & App. Bd. July 14, 2023)
Royal Oak watch ad in Luxury Exotics, Opp. Ex. 108
“Industry Expert” is Not a Proxy for
Consumer Survey

45
“For example, … you have hundreds of thousands of
people having Ferrari posters in their home, doesn't
mean they’re going to buy one tomorrow. In general, a
lot of people are interested in products that they
cannot afford. It’s aspirational. Like, they believe that
one day they will buy them and have them and
motivate them to work and, you know, and produce
things.”
–Declaration of William Rohr, one of Audemars Piguet’s
industry experts
TTAB LEXIS 265 (Trademark Trial & App. Bd. July 14, 2023)
“Industry Expert” is Not a Proxy for Consumer Survey

46
Important Takeaways
 Industry experts can provide useful testimony to
show strength of the mark within a particular
industry.
 But, resist the temptation to have an industry
expert opine more broadly on how people outside of
that industry view the mark.

Survey Should Be Conducted By an Expert!
In re PT Medisafe Techs., 2023 TTAB LEXIS 61
(Trademark Trial & App. Bd. February 15, 2023) 47
Applicant Application Drawing for Green Color Mark
(Medical Examination Gloves)

Medisafe’s Improper Stimulus
(Trademark Trial & App. Bd. February 15, 2023)
48
Applied-for Mark
Survey Stimulus

“Applicant’s So Called Survey Evidence”
(Trademark Trial & App. Bd. February 15, 2023)
49
Consumer survey conducted by counsel contained other
problems:
• Counsel had no survey credentials
• Surveyed improper universe
• Used leading/improper questions
Result: TTAB gave survey “no weight”

If I’m Rebutting a Survey, Do I Need an Expert?
“While a party is not required to employ an expert to be
able to direct criticisms to an opposing party’s survey,
having a qualified expert confirm that the criticisms
reflect the relevant standards employed in
the survey field would lend additional weight to such
criticisms.”
50
McDonald’s Corp. v. McSweet, LLC, 112 USPQ2d
1268, 1298 n.58 (TTAB 2014)(emphasis added).

How Many Rebuttals Does the TTAB Allow?
51
MONSTER LITE
Monster Energy Company v. Coulter Ventures, Opp.
No. 91233515, 119 TTABVUE (August 8, 2023)
Opposer
Applicant

How Many Rebuttals Does the TTAB Allow?
Opening Survey Report
Rebuttal Survey Report
“Sur” Rebuttal
“Sur Sur” Rebuttal
52
MONSTER LITE
Time Line
MONSTER LITE
Monster Energy Company v. Coulter Ventures, Opp.
No. 91233515, 119 TTABVUE (August 8, 2023)

Consumer Surveys Typically Presented
to the TTAB
53

Likelihood of Confusion Surveys
54

Two Methods: Squirt and Ever-Ready
55

The Issue in Squirt Co. v. Seven-Up
Whether “Quirst”
infringed the “Squirt”
trademark?
56

Squirt Survey Format
Gilead Scis., Inc. v. Gilead Capital LP, 2021 TTAB LEXIS
160, *81 (Trademark Trial & App. Bd. April 20, 2021).
57
Squirt survey design is generally appropriate
when:
• Parties goods and services appear
together in marketplace, or
• Going encounter one soon after the other

SquirtCo v. Seven-Up Co., 628 F.2d 1086 (8th Cir. 1980)
In the original “Squirt” design, Respondents listened to radio
commercials for each of these products (no visual stimuli)
58

SquirtCo, 628 F.2d at 1089 n. 4
Then asked: “Do you think SQUIRT and QUIRST are put out by the same
company or by different companies?” (34% thought “same,” 55%
thought “different”)
59

Plaintiff’s mark and the offending mark are shown together or in close
succession to survey respondents
60

Ever-Ready Survey Format
“The Eveready format is especially useful
when the senior mark is readily
recognized by buyers in the relevant
universe.”
Gilead Scis., Inc. v. Gilead Capital LP, 2021 TTAB LEXIS 160, at
*81-83 (Trademark Trial & App. Bd. April 20, 2021).
61
“The Board has accepted this type of
survey, and it has been called the
“model” or “gold standard” in likelihood
of confusion cases.”
North Lock LLC v. C.V. Brewing Co. , 2016 TTAB LEXIS 468, *36
(Trademark Trial & App. Bd. September 16, 2016)

Union Carbide Corp. v. Ever-Ready, Inc., 531
F.2d 366 (7th Cir. 1976)
Plaintiff Union Carbide adopted
“Eveready” for batteries dating
back to 1890s
62

Defendant began using “Ever-
Ready” on lamps and mini bulb
blister packages in the 1970s
Defendant's Accused Use of “Ever-Ready”
63

Union Carbide Corp., 531 F.2d at 385 n. 11
Respondents were shown the blister pack and
then asked:
• “Who do you think puts out these mini
bulbs?”
• “Please name any other products put out by
the same concern which you think puts out
these mini-blubs?
53% said “batteries”
Defendant's Accused Use of “Ever-Ready”
64

Unlike Squirt, Ever-Ready Surveys Do Not Show the
Senior User’s Mark
65

160 (Trademark Trial & App. Bd. April 20, 2021) 67
Example of Where TTAB Found Squirt Design
Was Improper
Investment management; Financial services
Multiple registrations for services such as “Health
insurance consultation” “Pharmaceutical
preparations”
Applicant
Opposer
Applicant sought registration of the above design and word mark “Gilead Capital”

160 (Trademark Trial & App. Bd. April 20, 2021)
68
Respondents first
shown this card
containing the applied-
for word mark GILEAD
CAPITAL and
description of services
Opposer Offered “Squirt”-Style Survey to
Show Confusion

69
“Do you think this company is
the same company or a different
company than the one whose
name and description you were
shown first, or do you not
know?”
Next, Respondents Shown Four Different Names
and Descriptions
GILEAD SCIENCES
QUEST DIAGNOSTICS
BOSTON SCIENTIFIC
GENESIS HEALTHCARE

70
Survey Results
• 38% of survey respondents believed there was a
connection or affiliation between “GILEAD SCIENCES” and
“GILEAD CAPITAL”
• After adjusting for “noise” the net confusion rate was
approximately 15%

71
TTAB Held Survey Lacked Marketplace Reality
Why? Parties’ Marks Not Likely Encountered Together
in the Marketplace

72
 Squirt is appropriate if parties’ marks appear
together or in close succession in the marketplace.
 If they do not consider if whether Ever-ready is a
better fit.
Important Takeaway

JJI Int'l, Inc. v. Sparkle Life LLC, 2014 TTAB LEXIS 417
(Trademark Trial & App. Bd. September 25, 2014) 73
Identifying the Survey Population
Opposer Applicant
Sought registration for
“SPARKLE LIFE” word
mark for jewelry
Important: No
limitations on channels
of trade, etc. in the
application

JJI Int'l, Inc. v. Sparkle Life LLC, 2014 TTAB LEXIS 417,
*17 (Trademark Trial & App. Bd. September 25, 2014) 74
Squirt Survey: Opposer’s Mark First
Question 1: “The image below shows a piece of jewelry that you might
see in a store or online. Please look at the image as if you were
considering shopping for this type of jewelry.”
Opposer’s Mark

Squirt Survey: Applicant’s Mark Next
Question 2: “The image below shows a different piece of jewelry. Please
look at the image as if you were considering shopping for this type of
jewelry.”
Applicant’s Mark

Squirt Survey: Then the Critical Question
Question 3: “Do you think that the jewelry [] is put out by a different company or
the same company that puts out the jewelry in the image you saw before, or are
you unsure?”
Applicant’s Mark
Net Confusion rate of 16.5%

JJI Int'l, Inc. v. Sparkle Life LLC, 2014 TTAB LEXIS 417, *
22 (Trademark Trial & App. Bd. September 25, 2014) 77
TTAB Found Survey Population “Too Narrow”
“…there are no restrictions to the
channels of trade, classes of consumers,
or price points in either description of
goods. Nevertheless, [the expert] limited
the universe of respondents to people
interested in purchasing (or have
purchased) ‘women's jewelry’ in the
price-range of $ 25-249.”

Important Takeaway
78
 In identifying appropriate survey population, it
may be important to consider whether there are
any restrictions in the application related to the
types of consumers or channels of trade.

79
Surveying Too Broad Population
Opposer Applicant
Luxco, Inc. v. Consejo Regulador del Tequila, A.C.,
121 USPQ2d 1477, 1479 (TTAB 2017)

80
• Luxco submitted survey to show TEQUILA
was generic, but survey universe was too
broad; included hard liquor purchasers
rather than purchasers of Tequila
specifically
• No evidence that all hard liquor
purchasers purchase tequila
Luxco, Inc. v. Consejo Regulador del Tequila, A.C.,
121 USPQ2d 1477, 1479 (TTAB 2017)
Surveying Too Broad Population

Documenting the Decision to Use Selected
Survey Method
81
Elevate Fed. Credit Union v. Elevations Credit Union,
2022 U.S. Dist. LEXIS 47346 (D. Utah Mar. 16, 2022)

Documenting the Decision to Use Selected
Survey Method
• Expert “conducted numerous
internet searches” and found “the
parties’ marks are reasonably
likely to be found in close physical
proximity in internet searches”
• Decided Squirt was appropriate
82

Respondents Instructed to Imagine They Are
Performing an Internet Search…
83

And Then
Shown the
Results of an
Actual
Search….
84
Expert concluded there was a net confusion rate of
30% between “elevations” and “elevate”

Trial Court Excluded the Survey Under Fed. R. Civ. P. 37
“ [The expert] based this structure on the
results of a real search. However, this is
problematic considering that [the expert]
only disclosed one of his internet search
engine results (the Bing search result) to
show that proximity between the parties'
marks actually exists in the internet
marketplace. Thus, [the expert’s]
nondisclosure of the rest of his internet
search results makes it practically
impossible to determine if he created an
artificial marketplace in his survey.”
85
Tenth Circuit upheld
trial court’s decision

Important Takeaways
 If survey expert used internet searches to justify
the decision to use (or reject) a certain survey
method, consider whether those search terms (and
results) need to be retained and/or produced
under Rule 26.
 Also, consider same for browsers used, when,
where and from what device.
86

Secondary Meaning Survey Assessment
=
Well designed and executed
secondary meaning survey
88

Secondary Meaning Surveys: Beware of Your
Venue!
Drawing of Claimed Trade Dress, Ser. No. 86/634,819
TBL Licensing, LLC v. Vidal, 2022 U.S. Dist. Lexis, 222097
(E.D. Va. Dec. 8, 2022) 89
Applicant

Secondary Meaning Surveys: Beware of Your
Venue!
Survey Used Photograph of Timberland Boot
Vidal, 2022 U.S. Dist. LEXIS 222097
*expert used different photo
90
Applicant

Survey Evidence Failed to Establish Secondary
Meaning
Survey Used Photograph of Timberland Boot
Vidal, 2022 U.S. Dist. Lexis, 222097, at * 24 (emphasis
added)
“Photographs might be just fine in
a survey in an infringement case,
where what's going on in the
marketplace controls, but not in a
case where the goal is to obtain
registration of a mark that, by
regulation, is required to be in a
drawing.”
91

Important Takeaway
Survey stimuli may differ dramatically with respect to
both secondary meaning and likelihood of confusion
studies when you’re before the TTAB as opposed to
federal court.
92

Making Sure Survey Aligns with Burden of Proof
93
In re Post Foods, LLC, 2024 TTAB LEXIS 1 (Trademark
Trial & App. Bd. January 4, 2024).
Post sought registration of the color
mark

Making Sure Survey Aligns with Burden of Proof
94
Post sought registration of the color
mark
“The mark consists of the colors of
yellow, green, light blue, purple,
orange, red and pink applied to the
entire surface of crisp cereal
pieces. The broken lines depicting
the shape of the crisp cereal
pieces indicate placement of the
mark on the crisp cereal pieces
and are not part of the mark.”
(Emphasis added).

Survey Showed Respondents the Actual Fruity
Pebbles
95
Applicant tried to argue survey
responses show the color of Fruity
Pebbles has acquired secondary meaning
TTAB rejected survey because it does
not "provide any evidence that the
claimed colors have acquired
distinctiveness for the identified
goods, that is, all breakfast cereals,
including other non-crisp rice cereals
in other shapes.“ (Emphasis
supplied).

Campari Am. LLC v. Skyyguard, Corp., 2023 TTAB LEXIS
Applicant
Opposer
Survey Threshold to Show Fame for Dilution v.
Secondary Meaning

Campari Am. LLC v. Skyyguard, Corp., 2023 TTAB LEXIS
• Consumer recognition to show strength of a mark
for likelihood of confusion and showing fame for
dilution are distinct concepts
• “Generally, a threshold response in the range of
75% of the general consuming public is necessary
to prove fame for purposes of dilution.”
• Skyy Vodka brand recognition survey did not meet
threshold for fame
Threshold to Show Fame for Dilution

99
The “Teflon” Method
“Eflon”
For zippers
E. I. DuPont de Nemours & Co. v. Yoshida Int'l, Inc.,
393 F. Supp. 502 (E.D.N.Y. 1975)

100
The “Teflon” Method
• YKK started manufacturing its
EFLON zipper
• DuPont sues claiming
infringement of TEFLON
• YKK defends claiming “TEFLON”
has become “generic”

101
The Teflon “Mini Primer”
• DuPont presented survey research
to show “Teflon” was not a generic
term for “non-stick coating”
• Researcher explained the difference
between a “brand name” and a
“generic term” using Chevrolet as
an example.

102
The Teflon “Mini Trademark Test”
“A substantial majority of the public continues to believe that TEFLON
is a brand name.”
E. I. DuPont de Nemours & Co., 393 F. Supp. at 527
Results of the Teflon Test (in percentages)
Name Brand Common Don’t Know
STP 90 5 5
THERMOS 51 46 3
MARGARINE 9 91 1
TEFLON 68 31 2
JELLO 75 25 1
REFRIGERATOR 6 94 -
ASPIRIN 13 86 -
COKE 76 24 -

Teflon in Practice
2298, 2307 n.6 (2020)
103
Applicant
• On appeal of USPTO refusal to register
BOOKING.COM, affirmed by TTAB, Booking
submitted Teflon survey to district court showing
74.8% of respondents recognized term as brand
while 23.8% believed it was generic name
• Compared to 33% belief that
“Washingmachine.com, which does not correspond
to any company, was a brand and 60.8% thought it
was generic

Teflon in Practice
2298, 2307 n.6 (2020)
104
Applicant
• District court found survey methodologically sound;
held that although “booking” was generic for
services identified, BOOKING.COM as a whole was
nevertheless descriptive mark
• Fourth Circuit affirmed district court’s reliance on
survey and finding that it was methodologically
sound and that mark not generic
• SCOTUS affirmed BOOKING.COM not generic

105
In re Benjamin & Bros., LLC, 2023 TTAB LEXIS 419

Teflon in Practice
In re Benjamin & Bros., LLC, 2023 TTAB LEXIS 419
106
Applicant
• Examiner refused finding reservations.com
generic.
• Applicant produced survey evidence
claiming that “60%” of respondents believe
it was a brand name as opposed to a
common name.

108
Importance of the Mini-Test at the TTAB
In re Sensory Path Inc., 2023 TTAB LEXIS 201
• Conducted Teflon survey to assess
distinctiveness of mark, but did not first
conduct “mini test.”
• Without mini test, TTAB said “we cannot
determine whether participants even
perceived the intended nature or purpose
of the applied-for mark” and gave survey
no weight Applicant

Important Takeaway
 Surveys measuring genericism should first have a
mini-trademark test to ensure consumers
understand the difference between brand name
and common name
109

And, Again, One Final Resource and Thank You!
Keyes.mike@dorsey.com
Office: 206-903-8757
Cell: 509-263-0477
110

Designing Effective Surveys at the Trademark Trial and Appeal Board.pdf

Recommended

Recommended

More Related Content

Similar to Designing Effective Surveys at the Trademark Trial and Appeal Board.pdf

Similar to Designing Effective Surveys at the Trademark Trial and Appeal Board.pdf (20)

More from Mike Keyes

More from Mike Keyes (20)

Recently uploaded

Recently uploaded (20)

Designing Effective Surveys at the Trademark Trial and Appeal Board.pdf