issue of material fact regarding the likelihood of confusion. Id. For the reasons explained below, the court concludes that no rational trier of fact could confuse the “Big Dog Motorcycles” mark with the “Big Dog(s)” apparel marks as those marks are encountered by consumers in the marketplace. Accordingly, summary judgment in favor of Motorcycles is warranted. A. Degree of Similarity Between the Marks The court examines the degree of similarity between the marks on three levels: sight, sound, and meaning. King of the Mountain Sports, 185 F.3d at 1090. These factors must be evaluated “in the context of the marks as a whole as they are encountered by consumers in the marketplace.” Id. at. 1090 (quotation omitted). The court does not engage in a sid ., 143 F.3d 550, 554 (10th Cir.1998) (<HOLDING>); Universal Money Centers, Inc. v. AT & T Co.,
holding that district court did not clearly err in declining to credit prisoners testimony about exhaustion holding that trial court did not err holding the district court did not err by declining to weigh this factor firmly in plaintiffs favor where there was no similarity in the parties use and presentation of their respective trade beyond their obvious sameness of spelling holding that the district court did not err in finding that the plaintiff failed to provide adequate notice of new allegations where the plaintiffs complaint gave the defendants no notice of the specific factual allegations presented for the first time in the plaintiffs opposition to summary judgment holding that where it was clear that the court of appeals had limited the issues on resentencing to the one issue raised in the defendants first appeal the district court did not err in declining to consider other issues raised by the defendant on remand