it was because the district court asserted that the abbreviated names were not infringing because audient that had not presented evidence of actual confusion after two thousand before two thousand and one and the court committed the same mistake after remand essentially all the no intent was shown of actual confusion in order to prevail the majority of the likelihood of confusion factors favored audience and in the end the the likelihood of confusion analysis is not a simple mathematical equation but the record clearly shows that interest should have prevailed and that the district court gave undue weight to the lack of actual confusion before two thousand and one more also what t be looking at the issue of the similarity of the marks the court to expose in its opinion seems to say that in puerto rico members of the public understand the significance of the term co op and they will understand that a co op is different than a  think and because they have that understanding if it significantly in the course few lessens the likelihood of confusion what you seem to argue that that was a sort of legal or on the part of the court what what what what prevents the court from bringing its own sense of what people in puerto rico the marks and there's no analysis in the opinion in order as to that the court focused on the weak generic descriptive term co op as opposed to the dominant portion of the market which is  court also assumed the fact that is not subject to judicial notice basically that the court assumed that people would know that there is a legal distinction between a bank and a credit union which is a legal fact and then it jumped to the assumption that people will not be confused by knowing that legal fact and the court cannot cite the likelihood of confusion factors and make that ultimate like about the significance of the term there would have to be some evidence in the record to support the point that the court was making know the things that the fact that people may know that there's a distinction or they may that is a legal fact that the court assumed that people would know and there is case law before the circuit regarding the federal penitentiary here in san juan i mean in going that will where the court had assumed that people would know that a federal penitentiary is within the federal jurisdiction of the u s of the u s because people say federal penitentiary and it was held to be an error to determine assumed that people would know for legal distinction if i understand the argument you don't dispute that the word corporative might give notice of people that they were not in a bank and that they were in a comma instead if i understand what you're saying is and where the judge went wrong was that even though people from that word might realize they were in a co op rather than a bank they wouldn't know from that fact alone whether it was orientals or not that is correct and that's due to the family of marx and  i understood you to be saying if there's evidence needed the evidence would need to be needed because it's just not intuitive that the word cooperate to vote would dispel the notion that the co op was somehow affiliated with oriental because if it is somehow affiliated then the consumer confusion point with still stand that is correct and that goes to another point that we made in our brief the court did family of marks renders the edition of the descriptive generic term co op even less significant can i ask you then about the evidence we have that the name alone is the source of the confusion and it gets into two parts first what is the evidence that we have in the record that the name alone is confusing and then secondly if the name alone is confusing you seem to concede that they can keep the name oriental in the long form that is correct because i'm a little confused how the name alone can simultaneously be confusing but not confusing because trademark law  assesses if a particular use of a mark is likely to cost confusion our position and it was conceded in the first appeal as that is that the use in the full name of pope at the institution is not likely to that effect by several relations officers bit they all asked about the name there was  testified also at page three ninety three of the record that already in client found it strange that the institutions were not affiliated because they quote unquote even have the same name so there was evidence on the record evidence of confusion the that is the district court's finding and you i guess you say that doesn't matter because it's only when the apple e began to increase it profile in puerto rico that the the concerns about confusion began but nevertheless there was a long period of time when these two parties were in sort of the same business and at least in part of puerto rico the riposte to the same business and there was no evidence of confusion why wasn't the district court entitle to take that into consideration when it how to  determination about the likelihood of completion looking forward well two things absence of actual confusion may only be materials when the marks have co existed in the same market for a substantial period of time what the record showed was was there were no there's no evidence that confusion resulting from the proximity of those institutions was this is common or when then again lack of actual confusion confusion was heavenly heavily only when the particular circumstances indicate that such evidence should have been available and those circumstances are not present here there's a ten year gap immediately proceed in this suit from one thousand nine hundred ninety nine to two ten so there was no factual predicate for the court to hold that there should have been any likelihood of confusion even in america so again ten years of no use and no evidence had they had evidence of use of that mark they would have presented that evidence and they didn't and is supposed to have a continuous premonition use of the mark for you to be presumed that there would be likelihood of confusion and there is no evidence on  posit that the district court abused its discretion by failing to take into account this court's the mandate to evaluate the mark standing alone at the court evaluated the mark standing alone it would not have focused as  was in french in two thousand and nine low had the court evaluated the mark standing alone it would have considered the likelihood of confusion of those marks and used in non visual medium such as radio or loud speakers were obviously open at the best new approved law will not appear given the legal errors that you assert the district court made why wouldn't if we agreed that there were such  family of marks in its analysis of what the likelihood of confusion consumer confusion would be through the use of the word cooperative why wouldn't the appropriate remedy be to vacate and remain for the district court to then make an assessment with the proper understanding given all the different factual disputes that are out there this court has held that if the facts necessary to make a likelihood of confusion determination are undisputed as they are in had evidence and continued use of that market would have taken that opportunity in order to present that evidence but they did and they were happy to go on with the record as it stood thank you and effect and the mark as a complete mark and it's done in light of examining the sounds and meaning and that's what the district court date in this case this record they afford instance of the evidence and it doesn't show that the thing is your honour's that this case is a very fact specific case and when you actually got to see the instances of alleged actual confusion there are really really hard to swallow your own once you take a close look at the record and you see telephone calls being made to ofc or in that fashion by people having in their hands documents that relate the name of so meaning that they have adopted the standalone incomers fire as a condition to establishing that they have a family of much more so the law also requires a case also requires that prior to the junior did not take into account that and we assert that the legal standard for establishing that there is a family of marks is what we're stating and there is no evidence on the record there was no evidence  better or worse the case is just the first circuit seem to be of a different view since it specifically said in evaluating similarity to the district court if there was a family of marx's novelist how can the district court's analysis of the opportunity for be reconciled with the family of mark's point what evidence is there that supports a finding that the public would into it from the use of the word quark receiver that oriental could not possibly have their argument is that the confusion stems not from a confusion about whether something is a bank or credit union the confusion stems from who owns the credit union and that the word co op does not alleviate the use of the white mark well what about the evidence that was said in their brief and that was just reference an oral argument of the people calling who called thinking they were calling or ianto all about the maybe const caused by hearsay evidence and self serving evidence from which of course in trade right cases it's really not the best evidence to bring forward first there's  nothing in the record that point so that i mean those instances are there there could be two instances there are fifteen a instances where they're simply five it's nine hundred sixty six to two thousand and eight thousand and nine prior to two thousand and ten the record is limited to two thousand and ten prior to two thousand and ten there's not a single piece factors those five factors identified i flee by the district court itself with respect to establishment those are likely to confusion fog of those factors just looking at them at the stand or mark not taking into consideration confusion caused by the workout that those factors a favor or in top of the do you agree with that is the state of the record that's the state of the record i do not agree with ype of sophistication of consumer is very important take take into consideration in cases like this and you know what your honour's i do believe that that's one of the most important aspects of this case the industry trademark law that a costumer for banking purposes it's a person that exercises great care in choosing what financial institution to to to  opportunity because in that case the parties had not been in shared market for a long period of time it didn't have the opportunity to analyze how would a court this court term and or  actual confusion in cases in the banking industry that's why we were afraid this court in our brief to cases that these and we support was made are the rest of our arguments in our brief and we most important asset of companies nowadays without