Schwan’s three unsuccessful applications before the PTO demonstrate that BRICK Oven is generic or, at most, descriptive without secondary meaning. As noted above, both of the PTO’s final rejections of Schwan’s applications stated, The overwhelming evidence shows that BRICK Oven is a generic term when used in connection with pizza, including frozen pizza. For these reasons the [agency’s provisional decision] is maintained and made FINAL. (PTO Office Action dated Apr. 29, 2005; PTO Office Action dated May 18, 2005) (emphasis in original). Schwan’s objects to the introduction of this evidence, claiming that — despite the PTO’s use of the word “final” — their rejections are not, in fact, final decisions. See Everest Capital Ltd. v. Everest Funds Mgmt., LLC, 393 F.3d 755, 764 (8th Cir.2005) (<HOLDING>) (citing Johnson v. Yellow Freight Sys., Inc.,
holding that a district court did not abuse its discretion in excluding the testimony of a witness that was not highly probative holding trial court acted within its discretion in excluding expert testimony holding that district court acted within its discretion in excluding from the jury evidence of ptos tentative opinion as unfairly prejudicial under fedrevid 403 holding that the district court did not abuse its discretion in excluding hearsay evidence and evidence that violated the best evidence rule in deciding a summary judgment motion holding that the district court acted within its discretion when it denied plaintiffs request for counsel