factors were the st to the strength of the planet's trademark which courts say is the paramount factor in the likelihood of confusion analysis and number two the similarity of the parties trademarks or its incorrect analysis of those two factors cause it to tip the overall balance of the confusion assessment in homes favor and to incorrectly rule the combe what the district court should have done is what the trademark travel appeal board did in two thousand and seventeen before this case was appealed to the district court t v examine the same likelihood of confusion factors and reached the opposite decision and found no likelihood of confusion the teacher gave the reach that decision by correctly applying the crowded field doctrine which is critical to the strength of the market factor and also to the similarity of the marks factor but the crowded field aka holds is that when you have a mark like majesty includes a merely descriptive adji and which has been coexisting for decades with a multitude of competitors who likewise use that same prefix for their trademarks then what you have as a matter of law is a crowded field of similar trademarks in which each member of that deal gets only a very narrow scope of protection against competitors who also knew that you prefix in addition what the law says is that when there is a very large number of rd party uses which is the case here the plaintiffs trademark has to be considered both conceptually and commercially we and that overall the strength of the plan of smart factor has to be weighed in the defendant's favor so the district court made it clear  does have high sales of the product now just so that's correct your honor but that's not the end of the analysis and with regard to it it's correct that some of the rd parties did have did not yet have substantial sales to provide the overall picture of the rd party use your honor there were a total of sixty six rd party bad you trademarks that have either been registered or used over the lifespan of still never also seventeen use of a veggie prefix marked by rd parties and eleven live registrations at the p t o and so with regard to that group that you mentioned there were fourteen marks the th or district were incorrectly considered irrelevant because they didn't have substantial sales but that conclusion is wrong as a matter of law because the role of an issue for rd party marks is not the amount of individual sales by each particular party instead what's relevant is the overall cumulative impact that a large number of rd party marks has on the strength of the district court finding that the plane was marked was strong and held up the extensive evidence of rd party use meant the planets mars both conceptually and commercially we are and the variety court's reasoning for that decision was that one of the key metrics of commercial strength is the degree of exclusivity associated with plaintiff smart and so when you have a landscape that's flooded with rd party uses as this landscape has been over time that degree of explosive is extremely numbers into the quality of the you know of the alternative sales look at the survey that was in evidence without objection and you know i've certainly your position but as i read those factors it did not look like they were so cut and dried just wear them out tool error room wall and it looks like what you're arguing is you think he got it authority on the issue including those cases i just mentioned including variety store wal mart which is the courts when they analyze the impact of rd party marks they don't dissect each individual mark just to examine  particular sales it's the cumulative impact over time that is relevant to the to the strength inquiry and so here you are out of the district made it made it clear error by failing to follow the th circuit authority but it wasn't just those fourteen marks that did this surveys before the court take all of that into account well there were there were two surveys your honor one was a famous survey that goes the string mark factor and one was  confusion survey both of those surveys should have been given no weight because they were they were defective they both used main problem with both of them was that they used an implausible defective control out of what an heard all of that and heard from experts on both sides so how don't we know the district court deference in that regard when when i mean your client didn't conduct surveys that strew your honor and there is no obligation for a defendant to conduct a survey there's no you know inference i understand that it's true the court does get some discretion and if it's a clear error standard but here what the law shows is that the court didn't follow the law with regard to survey science on these two surveys did your client submit evidence of mark's other ahead just sort of big picture of the relevance of these rd party marks your honor is that it shows that consumers have become conditioned to distinguishing over time between willful that is you prefix marx and marketplace to a very good examples of that can be found in c v s write a target and wal mart and that's the badge it came product and the valid just out product so if a consumer walks into any of those four stores now you would see infringement cases and this isn't a trade dress my friend and in fact the trade dress cases the four sided actually support wall because they show that when consumers are are distinguishing between these marks what they look at year before the trial in this case but that was an error also your honor because by just at co existed in the same stores about to sell for thirty four years and so holmes recent purchase of it doesn't erase from the public mind the fact that th staff co existed in the same stores with badges ill for years without confusion and so there's no reason why badges sand wouldn't likewise coexist in the same stores the next significant error that the court may have your honors was exactly the opposite of what the law requires what the law says is that when you have two marks that share a descriptive component like the prefix baji the focus of the announce the shifts to the nine common components or in this case the for example this is what the federal circuit held in swatch versus burger which involve the marks watch and i watch and found them not similar because the generic watch in those marks was not sufficient to make its mark similar and the same was true in a litany of other cases cited in our briefs including the water case which involved sign new signs versus sign of plans for sinus products and another is was the landowner case  the marks but it also discussed the differences it didn't ignore it said the differences were only two of the seven letters and pointed out suggesting that because he did it find in your favor all that it was wrong all when it looks like he's looking at the suffix part of the mark he just gave it less weight than you ar was the dominant element for the sake of comparing tomorrow that's contrary to what the law requires but what the law says that when you have to market the generic or descriptive element in our system the dominant element is the and so the courts reasoning yes that you miss if the court misapplied the law by focusing on the that a product of this type of magical care product used for an intimate part of the body is purchased with a high degree of care by consumers and homes own witness in the g t a v proceeding acknowledges that act as will swiftness and so that and there are a number of cases involving personal care products including tampons lotions and hair care products that have held that consumers buy those products here which lessens the risk of confusion and the court should have good should standard review which after a full trial on the merits is the clearly erroneous thing we know under the clearly erroneous if the district court's account of the evidence is plausible the court of appeals may not reverse it even if the court would have weighed the evidence different but another way where there are two different permissible views of the evidence of fact finders choice between those two cannot be clearly iranians and the supreme court case said it best when they said that the trial in the and with a thorough complete supported fifty two dollars page decision by judge rose finding that confusion is likely now wolf disagrees the judge els but it can not show that the court was wrong or that his f that is so products a number of them have led new risk product categories as well as the product leader in terms of sales and units there is evidence that that just so has been advertised extensively for decades and virtually every media possible in major publications and in popular culture it's on popular t v shows the big bang theory south park even got the coup de gras of a trademark it got its own skit on saturday night live it is a famous  to boot the corps also had an empirical survey conducted by cohn showing that over eighty five percent of people recognize badges and this is significant because it wasn't just buyers of them it was men women across the and they look at its frequency and so necessarily a court must look at the quality of the uses to determine if they've had the impact on the plate a smart kid just taking the kid at face value and in fact of course is that you record explaining that this makes perfect sense if there are marks that are out there that nobody knows about how could that diminish the value of the plan of smart and in this day and age with the internet people could find anything everywhere and i think one billion seven  nice job laying out all the evidence and as the court noted that evidence was was very meager and it make again it makes sense the remarks like veggie tome which had three hundred and forty six dollars of sales in two thousand and eighteen there were seven more that a paralegal from combs law firm went out and bought of the over the internet but there's no evidence that anyone else not does not denigrate the strength of the mark which is what we need to look at year in and just as as the court noted those marks should little light without more i consumer perceptions they are in essence  registrations at some point in time but the only evidence of use of these marks was fifteen years in and of those fifteen the court noted fourteen had extremely limited sales seven were purchased by the paralegal  council's law firm who when i was a period of two months to try to find everything he could under the sun but what's most telling here is what there is testimony from walt's business person that she did not know even though she had studied the but even if we accept the evidence it really does hail in comparison to the evidence in in cases including the right stuart case right the store is telling because that was a the appeal of a summary judgment decision so the court didn't necessarily brace embrace all this rd part of you said in fact there were five hundred and thirty nine marks in that case and put in business is found by an investigator and what the court said is that's enough to raise an issue of fact and the court said to back to the trial court and noted that the existed since each entity britain and the court said when you see these private label brands people have become and a custom over the last century to know that if it's got the stores name on the brand that it's comes from the store and the court ellis the court decided that that was different enough that it didn't harm the value of the veges so more disagrees but again that disagreement does not constitute clear error especially given the  issue with the famous or again the court looked at this in detail they found that the badges ox control was appropriate and that was a perfectly sound decision because there was evidence listed on cross examination of wells expert that the u s patent tremont office has registered zox formative marks before that on that most expert conceded that botox is a possible name that's at darfur forty five those main corporate witness controls in this type of survey do and there's testimony on that and i referred repetitive to ninety four but at the end of the day where does this all go this all goes to the issue of right and what can not show that it was clearly  they must be looked at in their whole secondly strong marks must be forwarded a greater scope of protection so that less similarities are with that lens and those rules the court did not air in its factual that the minor differences between these marks final two valen consonant was less pronounced because it was at the end of the mark a court found rd of the marks are perceived similar by the eye in the ear th the captain court found that the meaning of sand and people confuse that with that is still not with any other baji minds that will contend rather and will talks about the cases certain cases and we've already distinguished those on pages forty to forty two of our brief the court distinguish them on a to twenty nine to thirty but generally speaking those cases part in applicable to this situation because none involve the famous markley that is what that's on saturday night live and that ninety percent of the general public kno none of them involve marks like that in all of those cases none of the marks involve marks that have the same amount of letters for the same products with the same prefix with the same  and with the same structure and sense and there are contrary cases be said to be communicated communication satellite case which is a th circuit case where comsat was found confusingly similar concept even though the prefix survey is very solid as the survey used a design called the ever a just ready survey design which is being called the gold standard and has been accepted in this circuit that showed a significant amount of confusion or the record shows there was no evidence of that and in fact to the contrary in this survey none of the respondents mentioned that they thought that baji pure was a foreign sounding mark so that that criticism is invalid and as the court  noted what can criticize the controls using the confusion servant they didn't test any themselves and certainly this control did the job of coming as close as possible to the mark without infringing it so it was a sound a sound irrespective when you when you analyze the survey the way the will says it should the results pop up to twenty one point five percent wolf has suggested that we should double counting control in which case the results are eleven to twelve percent but sophistication wolf argues that the court error by finding that this factor does not favor either party is an issue because there was a different and two different types of evidence that was when it looked submitted evidence that people are careful when they buy a product home submitted evidence that many people are embarrassed by a product like this in the conditions of trees so there they will therefore go into the store who they call that grab and go or shy to buy and they grab these least sophisticated person we think this factor should have favored us but ultimately the court decided to favors another part and so what we disagree with that there are two plausible interpretations from his factor and so we therefore cannot show that was clearly around and so certainly the court's decision should stand on that and the other five i noticed my time was running short what did i do want to address in the briefs  court that there is an ongoing case in the united kingdom and that is not true there and you notice in our brief there actually has been confusion again it's irrelevant but a point that is worth worth clarify so in conclusion the main events in this case already have happened that has sent its analysis was careful and it looked at the multiple individual confucian factors which were supported by ample record evidence and were true to fundamental primmer perspective principles all of those factors are issues of fact and in the th circuit the weighing of those factors is likely is likewise an issue of fact so when we look at all of the evidence it is well supported and one cannot be left a definite over the years for baji prefix trademarks and the result now is that over the years consumers have become conditioned to distinguish between who are including as i mentioned other bad ass three mark including  was irrelevant because it was in a different product category that finding was wrong because they're both national care products and what the law says is that when you're looking at rd party market the products don't need to be identical they don't need to be for over three decades with no evidence of confusion and no objection from from home so there's no reason why bad stamps wouldn't likewise co exist with regard to similarity of the parties trademarks is not a violation mentioned in the main portion of my argument that control is improper because it failed to serve the function of a control which is to determine whether respondents who answer the question whether they believe the so in order to really get a true gauge of that what the control should have been is something that had gradually lost the letter and so by doing that mr perot would have gotten a true reading of whether any confusion was caused by th rendered mr press confusion surveys unreliable and the court should have taken the same approach that the western district of tennessee did and another in a similar case also involving this or perhaps this was the ducks unlimited case which had the same problem it was a confusion survey the case they're involved to duck kind of marks and mr pratt survey used to control that didn't look anything like a duck it wasn't similar enough to a duck and so the effect was it drove down the results in the