well when the when the ordinary consumer is considering buying a smart watch do you think it he or she will be doing research on processes for strengthening the last we'll be doing research  on different aspects of the watch for sure and saxons expert on the hardware explores this line as she points out how that when you're doing this research on the internet it will encounter both of the marks and likely be confused when when she when they see them together on the internet and that's that's been briefed expend extensively but that's all that's on the harper's expert report as well as your deposition some understanding that this that this is the contraction of ion exchange so i would say it is not descriptive i would say that in suggestive if if if and then that presupposes that the consumer knows something about the ion exchange process the ordinary consumer what a specialized fireblast is one type of consumer your honor and the specialized fireblast might know something about the ion exchange process an ordinary consumer that that's just buying an apple watch does not have the scientific background to know that glass can be strengthened by on exchange they just don't that is just not common knowledge one minute one minute so that x is permitted under the descriptive fair use doctrine and nd the district court correctly held that no reasonable jury could find likelihood of confusion finding out a single factor favored saxon utility of descriptive words in keeping with this principle the district court correctly found apple satisfies this test for fair use because it uses the term one descriptively two not as a trademark and three in good faith focusing st on descriptive nys this court finds descriptive next when the terms used in its descriptive sense which includes as noted in cosmetically sealed to describe the characteristic of the good is determined by assessing the matter in which a mark is used and such an assessment also favors apple as shown on pages ten and eleven about his brief that apple uses the phrase on the back of its watch on the side  box and the fit same font size and location is other materials like composite back and its website does the same thing and in fact the website even explains that on x means it's  level through ion exchange in fact saxon's own expert james berger professor of marketing testified quote i don't believe they're using it as a trademark i think they're using it as a description of a component part and that it be descriptive and keeping with that this court's decision focuses on objective evidence of what the defendants uses for example in car freshener the score stated what matters is whether the consumers perceived it to be as descriptive nor that there been any requirement that consumers understand what the phrase means the coherent case in the th circuit that shows that the nan that a phrase necessarily know that they know exactly what it means possibly appreciable number of consumers may not know that sodium chloride is the chemical compound for salt it doesn't mean though that someone can get a trademark in sodium and prevent other people from from using it which seems to be effectively what they're saying but if someone gets it can a soup and see sodium chloride listed along with chicken they're likely to understand that that ingredient and not used as a mark and that is very much the situation here turning to use is a more the sex nd factor the context shows that apple is not using as a source identifier as i said their own expert said that but it's also consistent with the law of this circuit as non trademark use is shown by the prominent display of defendant's own trademarks in this case the famous apple marks cosmetically sealed stands for that that is the source in addition this court looks to and finds non trademark use word term is located in on the package in a non prominent way where only a close reader would notice and this is again the quintessential not prominent way the back of the bus the the back of the watch listing of the ingredients under the famous house mark now turning to the  could face the court correctly found apple acted in good faith because apple chose a term that describes its product not in order to capitalize on plaintiff's goodwill which is the standard in j apparel among other things a pple uses an x to refer to a characteristic of its product which langar says retirement living says supports good faith nd apple uses its own house more prominently to identify the source of origin which nabisco versus lambert and ca's medically sealed supports good faith rd apple does use the term for years and internally and in communications with suppliers long before this litigation commence which also indicates a lack of predatory behavior there's simply no evidence that apple intended to capitalize on the goodwill of saxon or to create confusion when we when i heard my friend argue is that well apple did a had a legal clearance and didn't release well we're not relying on the advice of counsel all the cases that we cited car freshener cosmetically sealed etc it's rare that somebody weighs privilege and relies on the advice of counsel it's not something that you need to do we didn't do it here but that doesn't mean it's not in good faith they also argue will doing a trademark search was somehow unusual but the unrebutted evidence is that doing such w standard at apple even with regard to descriptive terms and the idea that apple is somehow a serial infringer signing eleven year old news article about unrelated mark in an unrelated case that showed that ended up with zero decision let alone a finding that apple's serial infringer i guess needs fewer words than i've already given it turning to independent basis for firmus the lack of likelihood of confusion again the district court got it right here well apple has produced evidence that old likelihood of confusion factors favor apple i wanted to highlight a few with them in particular process and their own expert rhonda harper repeatedly admitted in her deposition that it was a descriptive term whether it's descriptive or suggest it doesn't actually matter it's still conceptually weak but it's it's they've never even heard of it in addition nd the similarity of the marks factor favors apple that under malice he looks to the overall impression of how a mark is used now not only are the m find at an abundance of caution that actual confusion with new neutral but i want to emphasize affable saxon offers no anecdotal evidence of actual confusion despite four years and that the survey strongly supports apple descriptive to a relevant consumer and i would beg to differ under the burghers under the berger survey under likelihood of confusion there were questions that go right to the right to the issue of descriptive notice of the term ion d ninety seven point five percent of those specialized buyers with glass one minute question that's question thirteen of the burger questionnaire the results indicate that as a forty respondents only two out of the forty has ever heard of the term of forty buyers of specialized class who would be expected to have a higher understanding of the descriptive miss of the term on dash x than an ordinary consumer watch so i would submit that there is survey evidence and my my friend it out  representing apple is mistaken is that there is convincing survey evidence in the record that ion dash x would not be descriptive to a relevant consumer in terms of the all the other factors