care. The federal court concluded that the district court weighed this factor too heavily, without considering the fact that the two companies were direct competitors. Similarity of Marks The test for similarity of two marks compares the sight, sound and meaning of the marks. This comparison is impossible when two distinct trademarks do not exist. The district court incorrectly treated the "ActiveBatch" keyword bought by Network, and the ActiveBatch product from Systems as two different marks. The federal court concluded that the "ActiveBatch" keyword purchased by Network is the same trademark as of the ActiveBatch product, so a similarity comparison was not relevant. Evidence of Actual Confusion Evidence of actual confusion is not necessary to prove likelihood of consumer confusion so the Ninth Circuit Court agreed with the district court in that this factor was given no weight. Type of Goods and Degree of Care The federal court found that the district court incorrectly concluded that this factor was in Systems' favor on the fact that in the 1999 Brookfield case, Internet users exercised a low degree of care. Internet users no longer exhibit a low degree of care for many situations. The Ninth Circuit Court also concluded that the type and cost of the product affects the degree of care by the consumer. A consumer of expensive, business software is more likely to understand search engines and sponsored advertisements, and thus be less likely to be confused. Marketing Channels The federal court decided that this factor is less important when the marketing channel is not obscure. Internet advertising was becoming ubiquitous, so sharing the same marketing channel does not reveal any information on the likelihood of consumer confusion. The district court incorrectly weighed this factor in favor of Systems. Defendant's Intent The Ninth Circuit Court concluded that the district court incorrectly considered this factor in isolation and presumed that Network knowingly used a similar trademark to deceive consumers. Since Network was providing a product in competition with ActiveBatch, Network was not trying to mislead consumers, but to inform them of other choices of comparable products. Likelihood of Expansion of the Product Lines The district court correctly disregarded this factor, since the likelihood of expansion does not apply when the two companies are direct competitors. Other Relevant Factors The eight Sleekcraft factors were never meant to be an exhaustive list. The appearance of the advertisements were also an important factor.