applications in issue discovery responses of applicant appellant a notice of reliance on a small number of internet articles concerning amazon's product bearing amazon's marks and  stipulation regarding the specimens of record for the registrations and applications in issue the st primary argument concerning the amazon's notice reliance on the internet articles submitted as amazon sole support for its claim of consumer awareness and fame and the effect of this is this joe dream do you think this is your primary  argument this is the strongest argument you're making well no i actually i think the one concerning oppose evidence of rd party registrations is at least as primary if not more primary  below and the court below did not cite it but only if an issue was properly before the court i would argue that the board raised their meaning said it properly before the court but also for t has done here in bringing up the timeliness argument and for shays also states that the court is not limited to a particular legal theories advanced by the parties but rather retain independent power to identify and apply for construction of the governing law just for i think we may understand that argument now i know you have to fly can you move on to some of the other issues sure simply stated that echo was the mark and we would i would submit that in the event the court takes any consideration of the dominant portion of the market issue that is clearly amazon and amazon echo that is the dominant portion because amazon is the sensible portion of the market at that was the suggestive portion of the mark and that the four registrations with amazon portion of the market and is also the house mark so she did with amazon and then you look at the going back real quickly to the internet articles you'll note that in the early every single instance  brief and one thing is that the registrations the rd party registration spent are just simply isn't it the case that most of those at least there seems to and in fact the registrations and this is one thing this would like to bring up here is that the registrations every registration on the principle register except for every one on the princip  and that they were taken into account but that the issue here is that they weren't given enough account because i believe that in evaluating them that they make the term  echo you want us to reach reweigh the factual findings of the board yes can we do that i believe you can have you believe you have the authority to do that not a new finding but it's a finding that the substantial evidence supports the fact that the competitors that are the subject of those rd party marks chose the term echo for a for a suggestive reason and that they become a part of the whole scenario of how weak or  case i think that the board failed to make the right factual determination as to the strength of the evidence to show that the marks are extremely wea compared to mark's the goods in the channels of trade the fact that the board found and where the substantial evidence standard is applied as to all three of those factors are undisputed and all of them weigh in amazon's favor fox comes mark incorporate amazon's and higher registered mark for gems on has registrations in addition to the amazon eco registration the identity and the incorporation of the entire eco merc increases the similarity of the mark to the matter of  cylinder that splits into two speakers echo the good travel in the same channels of trade and are directed to the same consumers in fact the only thing that's not identical for purposes of the st three dupont package in this case is fox comes into that prefix carefully and correctly held for these goods the duo prefix does not distinguish the marks if anything the marketplace evidence makes it clear that the prefix makes confusion more likely in hard to imagine what record foxconn could have created to overcome them but what is clear is that it did not create such a record in this case fox comes only evidence that could even theoretically have weighed against the st three factors ubiquitous evidence of rd party echo marks on the registry and in the marketplace under the six factor based on the evidence that foxconn made of record amazon and foxconn are the only parties actually selling speakers under an echo formative mark in other words based on the evidence that was before the board the marketplace choice for consumers would literally be between two cylinders a single unit called echo and a two in one unit  master the rd party registration foxconn offered a list of twenty four and even that was so stressed it included multiple marks the content of the term eco a reference to ecology creating the impression of being eco friendly which is a completely different commercial impression than after the market did include the word eco covered a myriad of goods ranging from aerospace processing boards to devices for analyzing wildlife down the board examined all of those registration and correctly held that registrations covering such a broad range of goods merely reinforce the dictionary definition of echo and do not narrow the scope of protection for amazon's registered echo marks in this case leans into seven of these registrations that it argues contain some goods that overlap with amazon's eco registration even if the court accept that characterization as a matter of law seven registration are not the kind of powerful or ubiquitous evidence you need to narrow the scope of protection for a registered mark certainly not in the st three factors way so heavily in the opposers favor and there is no evidence at all of the relevant rd party use in the marketplace the board also pointed out and foxconn has no answer for this that the marks in its list even less relevant in this case because those marks do not modify echo with a descriptive pre so the sum total of evidence relevant to the six to part factor which is the only one that could have weighed against the st three is that echo is a relatively small number of registered marks that cover a broad range of goods relating to sound and the only speakers currently offered in the marketplace under an echo market are echo in dual echo under the substantial evidence standard knew nothing and that record would justify reversing the board were relevant to the outcome in this case the identical goods general trade channels and consumers no meaningful rd party evidence a mark that incorporate them as an entire eco mark with a descriptive prefix and marketplace evidence showing  products look similar foxconn has no answer for that evidence which is more than sufficient to support the board's conclusion and that's where these diversionary argument about highly suggestive and commercial strengths come in new law and open the floodgates of appeals by ordering the board to subdivide the suggestiveness category on the spectrum existant upon factors are more than sufficient for the board to properly analyze the relevant evidence  opposition and even if this court were inclined to consider looking more closely at suggestiveness there's no reason to do so on this record because there's no meaningful evidence of rd party registrations and no evidence at all of rd party use for the reversible error under any circumstances in this case even if the board had disregarded all of amazon's evidence the th factor would simply have been excluded as irrelevant and if you look at the board's conclusion and the basis for its decision that's exactly what happened anyway as it frequently does the board found that the st three factors were dispositive regardless of commercial strength and that made perfect sense given how given how strongly the st three factors tip in amazon's favor those facts were more than enough for the board to find confusing similarity regardless of whether echo has any commercial strength or not that's exactly what the board did and so on this review this court could not find regardless of what it decides about those articles but while excluding amazon's articles wouldn't change the outcome i do want to point out that the arguments and fox conn's briefs are legally wrong under the safer rule amazon's articles are competent evidence that echo was part of a national conversation that was covered in c n n the wall street journal reuters bloomberg the n b c seen that p c magazine and others the fact of that coverage is competent evidence that echo has at least some level of commercial strength which is all the board found as to the dates of the articles and the timeliness this court should not create a new rule freezing the record for commercial strength at some point in the past unlike secondary meaning or dilution likelihood of confusion is forward looking how will this market impact consumers if it registers that's why the board routinely considers evidence from up until the time of trial if congress had wanted to freeze likelihood of confusion evidence at some point in the past it would have done so but that wouldn't have made any sense given the forward looking nature of the inquiry and that's why foxconn is forced to reach for that out of context mccarthy quote that we put offering to import a dual echo speaker from japan for over a one thousand dollars is not meaningful evidence of coexistence that could possibly make actual thing fusion relevant to the extent the court has questions or concerns about any of these issues i'm happy to address them or field any other questions but none of the if you get box kind of rates change the outcome in this case this isn't a difficult appeal after when do a wacko right g look the same in the marketplace undisputed evidence that the st three dupont factors dispositively in amazon's favor no meaningful rd party registrations and no evidence at all of relevant rd party consider the applications and registrations against each other which necessarily means that you're going to be considering the similarity of the marks and the relatedness of the goods but that can be completely turned upside down by for example evidence let's say the marks are similar but that was an enormous evidence of actual confusion days actual confusion could would tip the scales the especially effects the st new pump factors the similarity mr bear says also stated that the board routinely allows proof of same after the date of the assertion of a claim time fame you know thirty years twenty years and in those cases there was it was testimony that was meant in some of those cases there were there were surveys and they showed that the that fame is ongoing which is not necessary for in this case they initially have to show that they had fame and it's their position that they had to show fame at the time that the marks were asserted in litigation namely at the time of the filing of the notice of opposition