customer classes regarding the similarity of the marks we believe that the board didn't consider the marks in their entirety in that place too much emphasis on the fact that the market share that common accord guilt in the board made at least two mistakes we believed in and in doing  board failed to take into consideration the evidence that we introduced as to the weakness of the registrants market because it was based upon the surname of the registrants founder monte guild we introduced evidence to show that the registrant heavily promotes the connection between monte guild and its market because money guild is an expert in global investing when a consumer invest money with the registrant he or she gives mr guild full discretionary authority to invest the money as he sees fit thus the intent the evidence shows that the intent of the killed element in registrants market is to promote the connection between money guilds and the registrants the registrants mar it can ask you a question each individual dupont factor like for example similarity i for my that's a fact question right each individual  i'm not i'm not trying to fight you just answer my question isn't it true because i mean the answer is yes isn't it true that whether or not marks are similar under the dupont factor is a question of  overall weighing of the thirteen factors which determines likely to confusion is a question of law that i get to do to know correct correct so even if the p t o says two marks are similar and i don't want to overturn that bindings because you know the record has evidence for it i can decide how much weight that gets as part of the legal question because i'm the one doing the writing of those thirteen factors can't i yes or so in many cases that i have found it seems when we affirm analysis it is because either there are identical marks not similar and similar channels of trade and similar types of goods or there are similar marks not i guess but yet identical to channels  trade or identical goods here is like similar similar similar which has to be overall less underage an overview doesn't it than if that one of them had been identical as opposed to similar right similar but nothing is identical the way it has been in many other cases none of the factors one through three it seemed to me way very strongly in favor of a likelihood of confusion they meet maybe the bare minimum threshold they need to be upheld on appeal but that none of them weigh strongly as they have in other cases i agree that that the identity of the marks is similar i disagree that the services are similar i think they're totally dissimilar and i thing is even if they were similar didn't the board expressly find that there's a high level of sophistication in the consumers are talking about people getting mortgages and people financially investing in this case and i realize this is not part of the articulation of good people with over a million dollars of net worth investing these are and i realize that's not part of the description in the trademark but these the board found as a matter of fact that yes these are very sophisticated individuals and under that analysis they'd be less likely to be consumer classes which i believe is related and it's something that the board never really considered because with the board of this case is the board concluded based upon the fact that it concluded that this services were similar it then company case or for terrorists don't line capital all these cases and say that if there are no restrictions identified in the application or in the registration then you presume all the ordinary trade channels and all the ordinary consumers and it's not relevant to look at what the actual customers are or the registrant or or the applicant well i think that with the case  to consumers in trade i to take that back you are there you're correct there are there are case cases that tara might be one of them that says that when there are not restricted in the application of registration that you can presume that that there is a move in the same ordinary classes in which these same services lose right right then but that's the rug and then there are evidence here that there are many third party registrations of many companies that do offer both of these services that not only the african services on mortgage banking but also the registrant service on investment  advisory service i think and then isn't the case law pretty clear that when you have evidence like that that that is evidence that supports the idea of not only are these similar services but also that there is evidence that a consumer in the ordinary train trip trade channels would expect that a company would offer both of their services that is the law but i disagree with that fine when we have these are just a lawnmower service and in this the board in this case find that a consumer would expect and such chance that i feel like he went a lot further than the board did the consumer would expect these to be offered from the same provider or to the board simply acknowledge that there were providers that offered what was the board's finding  well i i believe that the board concluded that the services that services were related because if you have they're closely related because you have these third parties that seem to offer both mortgage banking services and sort of general financial advisory services and where i disagree with the board's finding in that regard is that they didn't really look at what the services were as identified registration of the application they went to these third class third party evidence with these these banks that sort of generally say oh well these are the investment you know the financial services and you know if you look at the services that are provided by the register and they're aren't they offering discretionary financial services there's no evidence that they did and that's that's part of the problem is is i think that with the board did is they looked at this general evidence of what banks do in that they provide some sort of discretionary there are some sort of investment advisory services and mortgage banking and they concluded oh well the these banks do the same thing that the applicant the registrant do well while the mortgage half of that equation might be true i don't think there is any evidence presented that have to accept what the registrant says is the class of goods or services that is mark's going to cover and i'm not sure how i understand discretionary financial advice in terms is i'm probably not saying what it is right and i don't know that i understand how it differs from what the evidence shows the banks were offering well again there is no evidence as to what the banks were offering and that's part of the problem but in discretionary investment advisory services are those types you basically give field investment management your investment and then you walk away from it and they they don't ask you would you like to make this trade would you like to invest in these investments would you like to they just take they just take care of demonstrate that in fact we have third party registries that are providing both services that are being offered by the two companies involved in the scheme well because that service evidence shows that the services that are that are provided by killed investment management are really a unique niche brand of services and they're not general that's making service and identifying you investment management management good morning may please the court i just wanted to answer a question that i think judge moore was directing to appellants counsel even when the findings are that mark is similar the goods are similar trade channels are similar customers are similar you get to weigh that finding against the other findings that they've made the marks are similar the goods are similar classes of customers are similar that's sort of thing and then you can really weigh what they have found specifically but that was a specific finding with respect  catch minding is the sophistication ways in favor of the applicant correct slightly as well because that's the one thing and that's what i do know about so i don't think i understand it and i respectfully disagree with the i think maybe the way i can explain it best is to say what you get to do to know as the court is to look at the finding that the marks are similar look at the finding that the goods are similar look at the finding that the travels of trading classes of customers are similar and look at the finding that the is the sophistication of the customer's way slightly against those factors then so what i don't get a great theme is a matter of law can you point me to any case that says that i don't get to that the consumers were a little bit sophisticated he found that sophistication we had in favor of them if they had made a specific fact finding about sophistication then i would agree that the question of fac would give deference to but they didn't make a fact with the way you're referring to is not a fact finding about sophistication it's about a fact finding how much weight to give sophistication in the overall analysis and that is the legal question maybe maybe what i can best do is to say what you've got for the for the appellants and goods are mortgage banking services and that's a very broad type of service and as they say in their brief i believe it takes all sorts of customers anyone who wants a house is going to be looking for mortgage banking services so they encompass both sophisticated people presumably and unsophisticated people and an entire range in between those two poles so when you've got into under one to think that discretionary what he calls discretionary investment advisory services only comprises sophisticated investors it's bay is his presumption based on evidence that really can't be light into the sort of ex parte proceedings so you have to look at the registration as well which just says investment advisory services and almost that's almost as broad as the class of customers for mortgage making services because so many people do investment service so to focus i think what you're looking at to try to get to the point where you're saying these are really sophisticated investors really isn't supported by the record you know the fact finding is consumers may exercise a certain degree of care in investing right now was the fact finding under the fourth factor which has to do with sophistication of purchasing right so that's a fact finding so then didn't they also argue repeatedly below tha there is a very long time of contemporaneous use with no evidence of any actual confusion they did make that order and that's a factor number eight the length of time and the conditions under which there has been concurrent use without evidence use with no evidence of actual confusion they didn't expressly say you know we acknowledge that this argument made what they did say at the outset of their opinion was they looked at what they thought were the most relevant part factors that was an appendix three and then they said in those which there were arguments and evidence but you just admitted we pointed to page four twenty they made arguments about factor number eight actual confusion and then this is the others we considered to be neutral so does others aren't they contrasting it with the arguments and evidence that were made i can't speak for the board and clearly they didn't address it expressly i had which are you telling me that you read this sentence as when they see the others as including all other arguments evidence they actually made but we don't address  quite you just told me that the board said we're going to discuss these big factors and we're not going to discuss the other factors that they may have argued or made but they we find them all to be neutral is now what you said to me they know that this doesn't say what the point is that they don't and the board says we considered you punt factors for which there were arguments and evidence so where is it that the board considered the arguments and evidence that were presented on du pont factory because they present it repeatedly and they even make the argument to the board the examiner is over looking at all of this evidence this they did not make that argument they did not make that finding they did not address it specifically in the thing but they did not have a do as more tender knowledge a judge for a second let's pretend that an argument is made to an examiner repeatedly and then you can read his opinion that doesn't address that argument and then let's pretend they then say they're one of their chief complaints to the board one of their chief complain to the  think i believe that the examining attorney did in fact address the lack of actual confusion and said that on in an ex parte proceeding you don't need to get into that because the other side is not here to give their i don't know i mean for me let me just tell you and your ministry to be agency has an obligation under the a p a to address the arguments that were presented in raised in its resolution that is an a p a requirement and if they made an argument to the examiner and they made it to the board and they complained it wasn't addressed don't we have an e p a violation no why not because this court has said very clearly in the marriott case in one thousand seventy five that evidence that there has been no confusion by the applicant in an expert the perceiving is irrelevant no that's not what we said we said generally irrelevant but the reason we said generally irrelevant in that case is that's after number seven as opposed to factor number there's two different factors and both the examiner i was addressing factor seven and that opinion was addressing factors seven neither of them were addressing factor eight and if there really are two different factors and one of which goes to  the length of time and conditions under which there's been no concurrent use why in the world that we say the next parte proceeding that's not available for because each of the registrant is not here to give facts that it has about whether or not there should be or would be or likely be or is actual confusion you need the other party here to be able to give their their story and give the facts that they are aware i'm sorry in order to adjudicate there's a little bit of confusion thirteen factors to be considered presumably in the context of this case because courts don't usually do a lot of to know these are the fourteen factors but you're telling me that there are thirteen factors that we have concluded two of them are completely irrelevant as opposed to at times are relevant and in fact it was only factor seven that factor in does not have to be considered by the board at all even when evidence is presented the is that what you're telling me dupont is a case point of time during the conditions under which there is been concurrent use without any evidence of actual confusion yes they did not address that you did not address that right and they did not have to rewrite and you believe do you agree that if i were to think they did have to address it it would be an a p a violation for them not to have done so if i think that is a factor that is not legally irrelevant to the decision at their front yard that they did have an obligation to address that if that is what this court believes it may well be that but i think that would be counter to a lot of pace law in ex parte cases that has been rendered by this court that says that deep well the likelihood of them in the actual confusion of evidence which includes how long it's been going on is simply not relevant unless you have the registrant here to give that there if there are facts that they are aware of on that particular thing and he could have gone to the registrant and said i'd like to get a consent f you i don't think there's going to be a likelihood confusion here you're in this business we're in the other business let's write down a parcel from the court exactly what we think we can do here that was not done that was open to them they could have brought for example for me would be that would be ideal if they were to actually do that in their opinions and specifically state that they had looked at that particular factor which wasn't done here but they did in fact say that they looked at all the other factors and consider them to be neutral which is something i'd say that outset i don't think they were trying to specifically say we're ignoring you know this actual confusion evidence altogether i think that they in a way that maybe wasn't the best word and we're saying we've looked at the other stuff and it's just a neutral i saw other another state examiner failed to address all of our evidence related to factor number eight you really think that under those circumstances the a p a is satisfied when the board and i read the opinion as absolutely neglecting to recognize the argument was even made and have incorporated or addressed it where in the two sentences that you point me to lead me only the only reasonable reading of those that i can see is that they misunderstood that that argument was somehow brain is done the evidence was presented it doesn't fall into the others you can respectfully disagree that's not relevant to me because i have i can read but so even under those circumstances you think there is no a p a obligation to address the argument meet when only three were made and this was highlighted in the in particular argument was rather and i mean we did make that argument because of course my friend it's been in business for almost sixty years and we've we've we've operated concurrently with with the registrant for almost fifty years well you know our both of our  companies originate in southern california so i mean it is an argument that that is there that you made we did focus on the similarity the marks primarily and i believe that this court also can determine whether or not substantial evidence supported the findings that that the marks were similar and i think that what the word didn't this case was it failed to consider our evidence of the weakness of the registrant smart and you know in doing that  you know i've been doing that you know i believe that the board but you much emphasis on this comment were gild that's used in both markets and they didn't consider the weakness of guilt and so what happened is they simply dismissed the descriptive elements of the marks and i think that was that was a mistake that the board made and i have a hard time reconciling that with this court's decision in juice generation where this court held that the board didn't adequately assess the weakness of the marks and it found that the board's analysis was inadequate because it didn't show any consideration of how the marks may convey a different meaning to the consuming public and i think that's a similar situation that we have here because of the connection of guild investment management market with monte  therefore it's a week more well because the what why wouldn't that same consumer think monti's non doing mortgage banking or big because the law is that that you are that market based