the morning honors may please the court the one of the fundamental errors and committed by the board below was the finding that there was likelihood of confusion between the stratus networks mark and you strata networks mark based primarily on in the board's words that the marks differed by only a syllable now there are many examples by this ord and the t t a b and which marks differing by a word by a syllable nevertheless create very different commercial impressions and this case is  similar these are two different words with different meanings and commercial impressions well most of the word the words of the same similar perhaps in appearance but the connotations are not they are different words with different meanings stratus is a type of cloud and shraddha is layers of rock in the ground that's to that point and you bta it myths that they chose the strata name to convey the rock solid foundation of their of their business and they're tied to technology strat about levels and what i think the key element is you're dealing with clouds versus rocks as far as the commercial impression i think ordinary consumers are going to say look but i i don't honestly i don't i believe the shraddha of the plural of stratus would be the same i don't think it has a different color even comb it for me is even if i were agree with your argument as to finding is not supported by substantial evidence because both of those things are substantial evidence you're really focusing on a point that is actually very good for you what is not enough to overcome the substantial evidence when the other two case to overturn substantial evidence because the again with with likelihood of confusion we're not looking at you know whether a consumer's going to kind of momentarily mix up the word so i meant to say stratus i said shraddha they're looking at you know if they're actually going it is there going to be a likelihood of confusion as to source or origin for for these these two words and when you have different words with different commercial impressions that the board didn't make a finding  sight and sound aspect of the word in this and that's that's what that's what you know has happened and you know cases finding certain surge are different or different even though they're very close obviously inciting meaning  and then those are different words and as far as the networks element of the of them are those are generic elements and there's you know there's lots of cases saying that generic elements aren't given much weight in the number so there was evidence to support that and the and and the the other side did present evidence that there that they're you know their customers you know provide i think you know a one hundred dollars a month for  you know the consumer side and the businesses one thousand dollars a month and we've we've shown cases that you know that support the idea that you know customers exercise a great deal of care and deciding you know who their internet provider is going to be or things of that nature the board didn't make any findings on the actual canard on the on the customer sophistication point they basically just cited the fact that the sophisticated customers aren't immune from confusion and while that is while that is true there was there's lots of evidence here that that was submitted and and i think that helps to offset  the any other factor there's case in many cases cases from this court that say that that factor can be dispositive and and that makes sense i mean even if you have a momentary mix up in the cement in the look and look of the name of all things being equal if you're going to spend a one hundred plus one thousand dollars on something and even if you're a consumer that's going to you know pay a one hundred dollars or a one thousand dollars a month on services that's going to on do a lot of  potential confusion and in this case the the board didn't make really any finding there and so i think in the weighing of the factors which which this court does obviously  i think that that that would be a basis for for for overturning the board as well just the fact that they did not properly consider that that point the  board also erred we believe in in their in their their method of analysis for for the for the comparison of the goods and services  pretty much all the other there's many many services listed between both that weren't really addressed at all and i think the fundamental error here was that there was a comparison between the  themselves and not consumer perception of those goods and so the so the board basically said ok voice over internet protocol is a voice service telephone services are voice communications were  sophisticated customer sophistication what was argued was that what the board provided was that customers aren't immune from confusion and that does not offset the other factors that they found and and and again when there weren't actual they didn't actually address the evidence that was that was provided and we feel that the weighing of that with the other factors we think that should be dispositive in this factor the fact that the customer sophistication was as strong as it was i think it's important remember at the outset counsel vaguely alluded to it that our standard of beauty is stanch evidence meaning would a reasonable fact finder viewing the evidence before it come to come to this conclusion and if it's reasonable to come to that conclusion even if another conclusion could be reached this court must sustain the board's order and the trademark trying to billboard reached a correct conclusion that the strat networks market as described in its application is likely to cause confusion with the strata networks more as described in its registration the comparison must be made before the trademarks on a billboard if they're not concerned with real world use as they're concerned with what they st looked at the similarity of the marks in here the board recently compared the marks and recently considered the dictionary definition submitted by the parties and then they've written the board recently found that these marks are far more that right so i'm happy to address that your honor the board held and i quote from them again even if we accept in considering the forced upon factor applicants assertion that the involved services may be the subject of the sophisticated purchases even careful purchases are likely to be confused by similar marks use connection with services that are in part legally identical that supports hold him now they reviewed the evidence submitted by the african regarding that which was the naked testimony of a c e o accompanied by a spreadsheet that provided no no information whatsoever other than it had some numbers that were not tied to any purchase confronted with marked laser swing for golf training aids as opposed to laser for golf clubs and there are the board found that marks are very similar to the services are identical and then it didn't even address consumer sophistication they just said it doesn't matter because the marks are so similar and that's legal if the services are legally identical and this court reviewing that said any error by the board not specifically considering the sophistication the services are identical then customer sophistication is if weighed it's weighed less and that's what the sport did here they said there's evidence allegedly evidence of actual of of consumer sophistication your honor at the outset we can discount the color because the registered mark doesn't claim a particular color the registered mark as it has no color claiming that's his is capable of embodying any color whatsoever and so the fact that one is blue it is court because the registration covers whatever color wants to present and if you look at those marks together as the board did eight they found and the substantial evidence supports as they looked at exactly identical and a circular globe off to the left of both of those words with criss crossing lines that the the border st that is similar to science incorporating the letter s perceiving the wording they looked at those and found they were highly similar then they'd look to the sound comparison of stratus networks versus straddlers at the outset of this case it was confusing even to us and we represent one of the parties don't think keep track of that you're marching through this in a very methodical way a you're doing a great job in that regard but i guess for me i'd look at stratus in stride and i look at these two marks personally just my ten thousand foot level of appellate court judge and i wouldn't be confused by them certainly not if i was buying one hundred thousand dollars now if i set my kids to the supermarket to get something for sure they would come home randomly with either one of these things and i wouldn't send my kids to buy something that costs a one hundred thousand dollars so i do think the sophistication matters even when you have similar marks which is what you have here you don't have identical marks of similar marks well there are there and we agree they're not identical they are highly similar they look very similar they sound very similar and oftentimes the court will find that similarity of the marks and similarity of services are the most important factors when weighing this i just don't think that's i  definitely depends on the type of product that issue i mean if i'm buying a car and it's the biggest purchase i've ever made in my life and i'm putting a lot of money down on this car i'm going to be a lot more careful that if i'm going to the store and picking up some you know kool aid or something right i mean it's of course it's natural the sophistication is going to matter more in cases where it's a much more expensive product that's being sold  and the consumers are much more sophisticated and careful in their purchasing i could be a sliding scale and i think that's a fair point but but chance would have you say all the other factors that way and you b t s favor and all of the other factors way way needs to take place and i do wish the board had done a better job of articulating something more specific on the sophistication since they didn't what i'm left with is really i need to accept what they argued about sophistication kind of as true and then resolve this i don't really know how else to treat the board opinion since they didn't make a specific fact finding otherwise well let's address that then your honor that the case law is really clear on this fact that when you have a scale of consumer sophistication and u g a put in evidence and it's referenced in our brief it was before the board that their customers range from the cell phone purchaser to spending a little bit of money all the way to the same business customers the client is that applicant is referring to the spend upwards of ten thousand dollars or more per month for you bt services that when you're confronted with the sliding scale of purchasers you have to take the least sophisticated purchaser of those services you can't just automatically jump to the highest level and assume they're the only ones that are going to counter the mark why would you take the average level of sophistication i'm not sure i understand why your logic about i can't take the highest i in light of the substantial other evidence in light of the every other fact and weighing in favor of the bta would seem to contravene the prevailing case law and the standard of the score address really quick the comparison of the services that counts validity to and frankly counts was wrong in the fact that he's saying that the board only considered telephone services in regards to the voice over ip services and ignored every other service listed in their application if that paragraph that he's referring to in the appendix in the in the board's order in there the board looks at electronic and digital transmission of voice telecommunications switched in dedicated voice communications analog and digital voice communications transmission of voice communications by various means transmission of audio conference calls and voice over  services and looks at all those services and said all these services provide the same function as telephone services in the registrations i evolve communication bus as identified these services  backed all the services are legally equivalent to telephone services the board looked at all the services and found that the majority of them all relate to the services offered by e t a e t a put in evidence in the declaration of mr rasmussen and overlapping but identical well in a complete identity between the services that they seek to cover and the services that you're registered marketers and in the perspective of you have a broad category of services as opposed to a smaller subset of those same services telephone services is a very broad category of services and all of these different communications services fall within the subset that are or are subsets to those telephone services well let me can i circle back to your honor to answer your question judge moore regarding if there's case law that supports our sophistication consists of the customers analysis stone lying capital partners is a federal sophisticated consumers for the services were cited in the application registration not the actual consumers of the parts now here and it's just it's very important there is no restriction whatsoever in the in the registrations restricting at the classes of customers or to channels of trade and there's no restriction whatsoever in the application because there's no restriction the law is clear and that there is you need to look at channels a trade or even the consumer's fist occasion these classes of customers because they're all presumed to be the same absent restriction they're all presumed to be the same and for these reasons your honour's we you're on a related related point so the the laser golf case which was this discussed about customer sophistication that again those those were with identical golf clubs they're both dealing with golf clubs and of the believe judges judge moore's eluded to it these aren't identical services and was it was an error for the board to find as such they overlap there may be some overlap certainly honor but voiceover but there's a but that's a very important difference because if they're not identical if the services so the goods are not identical then you do not have the presumption that they travel in the same channels of trade for example and so that factor w the they made a fact finding that they were identical which many and then the trade channels they said we presume they travel in the same channels of trade based on the fact that they're identical if they're not identical then that presumption should not apply to them are identical and for the way i mean when you're trying to access the likelihood of confusion and they if you class if you are t shirts mugs and posters and they have  mark only two posters it doesn't matter you're seeking a mark on these other categories if your identical in one of the categories then the board is meant to and should properly focus on whether there be a likelihood of confusion in selling the one thing in which your identity and so i don't see a problem in the presumption of trade channels and like if you overlap that means for at least some of the goods and services he's claiming the identical if they overlap and then that they're related but not identical and they're not identical in this case voice over internet protocol is not identical to telephone services so you bt is own evidence submitted show that they provided a dictionary definition where voice over internet protocol is an all low cost alternative to telephone services and there's no discussion at all about the suma impression of what they're that the fundamental error here is that they're comparing the boards comparing the services themselves there's no you're supposed to compare what a consumer is going to think and a consumer so evidence of that would be hey here's here's a bunch of businesses that provide voice services and traditional telephone services or or here's registrations that encompass both things that was not provided here and so that was a fundamental error in that factor in which we don't think substantial evidence supports that and we would ask you to to to reverse the