 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 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.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.