Dare Fashion LLC

Trademark Trial and Appeal Board

Aug 3, 2021

88748626 (T.T.A.B. Aug. 3, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 3, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Dare Fashion, LLC

Serial No. 88748626
_____

Nina Yablok of Law Office of Nina Yablok
for Dare Fashion, LLC.

John E. Michos, Trademark Examining Attorney, Law Office 118,
Michael W. Baird, Managing Attorney.
_____

Before Larkin, Dunn and English
Administrative Trademark Judges.

Opinion by English, Administrative Trademark Judge:
Dare Fashion, LLC (“Applicant”) seeks registration on the Principal Register of
the standard character mark DARE TO WEAR for “Women’s clothing, namely,
dresses, tops, blouses, leggings, excluding socks and underwear” in International
Class 25.1

1 Application Serial No. 88748626; filed January 6, 2020 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), claiming first use at least as early as October 1, 2006 and first use
in commerce at least as early as October 15, 2006. The current identification of goods is the
result of an amendment Applicant made in its May 28, 2020 Office action response, TSDR
11.
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The Examining Attorney has refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the
standard character mark DARE TO WEAR for “socks; underwear” in International
Class 25.2
When the refusal was made final, Applicant requested reconsideration and
appealed. The Examining Attorney denied the request for reconsideration and the
appeal proceeded. The appeal is fully briefed.3
We affirm the refusal to register.

References to the prosecution history are to the USPTO Trademark Status and Document
Retrieval system (TSDR) by page number in the downloadable .pdf format. Citations to the
briefs are to TTABVUE, the Board’s online docket system.
2 Registration No. 4708618; issued March 24, 2015.
3 We have considered the evidence attached to Applicant’s appeal brief only to the extent it
was made of record during prosecution. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d) (“The
record in the application should be complete prior to the filing of the appeal. Evidence should
not be filed with the Board after the filing of a notice of appeal.”). We discourage the practice
of attaching materials in the record to briefs for the reasons discussed in In re Michalko, 110
USPQ2d 1949, 1950 (TTAB 2014) (“Parties to Board cases occasionally seem to be under the
impression that attaching previously-filed evidence to a brief and citing to the attachments,
rather than to the original submission is a courtesy or a convenience to the Board. It is
neither.”).
Not all of Applicant’s Internet evidence includes the required URL addresses and dates, In
re I-Coat Co., 126 USPQ2d 1730, 1733 (TTAB 2018), but any objection to the evidence on this
basis has been waived because the Examining Attorney did not inform Applicant of this
deficiency and treated Applicant’s Internet evidence as of record. In re Mueller Sports Meds.,
Inc., 126 USPQ2d 1584, 1586 (TTAB 2018) (objection may be deemed waived if examining
attorney fails to object and advise applicant of the proper way to make Internet evidence of
record).
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I. Preliminary Issue
On the last page of its brief, Applicant offers to amend its identification of goods
to delete “leggings” to “solidify the competitive distance” between Applicant’s and the
registrant’s goods.4 It is, however, too late for Applicant to amend its identification.
“The Board’s ability to amend an application that it has reviewed on appeal is
limited by the Trademark Rules.” In re Faucher Indus. Inc., 107 USPQ2d 1355, 1357
(TTAB 2013). As noted above, the application should be complete prior to the filing of
an appeal. Under Trademark Rule 2.142(g), 37 C.F.R. § 2.142(g), “[a]n application
which has been considered and decided on appeal will not be reopened except for the
entry of a disclaimer... or upon order of the Director....”). In re Faucher Indus. Inc.,
107 USPQ2d at 1357 (the Board cannot “re-open the application for amendment of
the identification by applicant.”); see also In re Ox Paperboard, LLC, 2020 USPQ2d
10878, at *1-2 (TTAB 2020) (explaining in descending order of preference the timing
for filing a proposed amendment in an attempt to obviate a refusal: (1) propose an
amendment as early as possible during prosecution of the application; (2) make an
amendment in a request for reconsideration soon after the issuance of a final Office
action and before the deadline to file an appeal; (3) after filing an appeal “file a
separately captioned request for remand and suspension of proceedings with the
Board, ideally prior to the deadline for filing an appeal brief, so that the Board can
make a prompt ruling on the request and the examining attorney does not have to
draft a potentially unnecessary appeal brief”).

4 Appeal Brief, 9 TTABVUE 7.
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Accordingly, the identification of goods as recited remains the operative
identification for purposes of this appeal.
II. Analysis
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on likelihood of
confusion. In re E. I. DuPont de Nemours & Co, 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S.
138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co. Inc., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont
factor for which there is argument and evidence. See In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2 Software, Inc. v. M2
Commc’ns., Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark
Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we
have considered each factor for which we have evidence, we focus our analysis on
those factors we find to be relevant.”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the relatedness of the goods. See In re Chatam Int’l Inc., 380
F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental
inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”); see also In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
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likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus … on dispositive factors, such as similarity of the marks and
relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). We discuss these factors and the other
relevant DuPont factors below.
A. Similarity or Dissimilarity of the Marks
Applicant concedes that the “marks are identical in appearance, sound, and
meaning, ‘and have the potential to be used … in exactly the same manner.’”5
Accordingly, the first DuPont factor strongly supports a finding that confusion is
likely. The identity of the marks also reduces the degree of similarity between the
goods required to support a finding of likelihood of confusion. In re Shell Oil Co., 992
F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993); Time Warner Ent. Co. v. Jones,
65 USPQ2d 1650, 1661 (TTAB 2002); In re Opus One Inc., 60 USPQ2d 1812, 1815
(TTAB 2001).
B. Similarity or Dissimilarity of the Goods
Under the second DuPont factor we consider “[t]he similarity or dissimilarity and
nature of the goods or services.” DuPont, 177 USPQ at 567; see also In re Detroit
Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018). We must base
our comparison of the goods on the identifications in the cited registration and
Applicant’s application. See Stone Lion Capital Partners v. Lion Capital LLP, 746

5 Appeal Brief, 9 TTABVUE 2.
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F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); In re Dixie Rests. Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); Octocom Sys., Inc. v. Hous. Comput.
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). The goods need not
be identical or directly competitive for there to be a likelihood of confusion. The
evidence need only establish that the goods are related in some manner, or the
conditions surrounding their marketing are such that they could be encountered by
the same purchasers under circumstances that could give rise to the mistaken belief
that the goods come from a common source. Coach Servs. Inc. v. Triumph Learning
LLC, 688 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993); In re Rexel, Inc., 223 USPQ 830, 831
(TTAB 1984). It is sufficient for a finding of likelihood of confusion if relatedness is
established for any item encompassed in the identification of goods or services in a
particular class. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209
USPQ 986, 988 (CCPA 1981); Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d
377409, at *6 (TTAB 2019); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB
2015).
To prove that Applicant’s “women’s clothing, namely, dresses, tops, blouses,
leggings, excluding socks and underwear” and the registrant’s “socks; underwear” are
related, the Examining Attorney submitted website screenshots showing that some
of the goods in Applicant’s application and the cited registration are sold under the
same mark through the same online retailers:
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 Victoria’s Secret selling PINK branded underwear, tops, t-shirts and
leggings for women;6
 Lands’ End selling its own branded tops, shirts, blouses, dresses, leggings,
long underwear, and socks;7
 Calvin Klein selling its own branded women’s tops, blouses and
underwear;8
 Lulus selling LULUS branded dresses, underwear and thongs;9
 Madewell selling its own branded dresses and socks;10
 Forever 21 selling its own branded dresses and socks;11
 BackCountry selling women’s tops, dresses, and underwear manufactured
by third-parties;12 and
 The North Face selling third-party socks and its own branded women’s
shirts and tops.13
Applicant concedes that “[t]he examiner aptly cited significant websites showing
clothing companies who offer a wide variety of clothing, including socks, underwear,
shorts, tops, sweaters, and leggings” and that this evidence “confirm[s] that it is a

6 June 19, 2020 Office action, TSDR 187-198.
7 Id. at 141-52.
8 Id. at 153-86.
9 January 19, 2021 Denial of Request for Reconsideration, TSDR 4-18.
10 Id. at 19-32.
11 Id. at 33-40.
12 March 26, 2020 Office action, TSDR 20-31.
13 Id. at 32-37.
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common practice in the clothing field to sell many types of clothing under the same
mark.”14 Applicant, however, argues that the cited third parties are “large clothing
manufacturers, which sell a wide line of clothing to both men and women” and “have
good will associated with the brand rather than individual articles of clothing.”15 We
construe this as an argument that the evidence of third-party use has limited
probative value because the third-party mark are not product names, but rather are
house marks or designer name marks.
Designer name marks and house marks may be less persuasive on the issue of
relatedness when such marks are used to identify a broad range of products in
different fields. In re Donnay Int’l, Societe Anonyme, 31 USPQ2d 1953, 1954 n.3
(TTAB 1994) (minimizing the significance of two third-party registrations for house
marks “since house marks can be used to identify a broad range of products”). Here,
however, only one designer name mark is of record, CALVIN KLEIN, and the record
does not reflect that this mark is used with a broad range of goods. Similarly, the
cited house marks appear to be limited to clothing as opposed to a broad range of
goods. Consumers encounter these marks in the marketplace and, therefore, are
exposed to the use of these marks on the clothing items of both Applicant and the
registrant. Accordingly, the evidence of third-party use supports that Applicant’s and
the registrant’s clothing goods are related. Wet Seal, Inc. v. FD Mgmt., Inc., 82
USPQ2d 1629, 1640 (TTAB 2007) (evidence of three companies, Calvin Klein, Chanel

14 Applicant Brief, 9 TTABVUE 4.
15 Id. at 3-4 (internal quotation marks omitted); Reply Brief, 12 TTABVUE 2-3.
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and BCBG, selling both clothing and fragrances under their house marks supported
that clothing and fragrances are related); see also, e.g., Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (evidence
that “a single company sells the goods and services of both parties, if presented, is
relevant to the relatedness analysis”); In re C.H. Hanson Co., 116 USPQ2d 1351,
1355-56 (TTAB 2015) (relatedness found where Internet evidence demonstrated
goods commonly emanated from the same source under a single mark).
The Examining Attorney also submitted 51 use-based third-party registrations
covering one or more clothing items identified in Applicant’s application and the cited
registration. Third-party registrations are not evidence that the registered marks are
in use or that the public is familiar with them, but they have probative value to the
extent they serve to suggest that the goods listed in the registrations are of a kind
that may emanate from a single source. See, e.g., In re I-Coat Co., 126 USPQ2d at
1737 (citing In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001)); In
re Anderson, 101 USPQ2d 1912, 1919-20 (TTAB 2012) (numerous third-party
registrations probative of relatedness); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198,
1202-03 (TTAB 2009) (21 third-party use-based registrations probative of
relatedness); In re Albert Trostel, 29 USPQ2d at 1785-86. Here, the third-party
registrations serve to corroborate the evidence of third-party use of the same mark
on the goods in dispute.
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Notwithstanding the significant evidence demonstrating relatedness, Applicant
argues that there is a “competitive distance” between the goods:16
(1) “[B]oth applicant and registrant offer a SMALL range of clothing types and
styles and have done so for years”:
Although there are categories of clothing listed on applicant’s website,
basically the applicant sells ONE article of clothing, and some related
accessories. The long and short sleeve tops are the same as the dresses,
just a little shorter. The costumes are the same as the tops and dresses,
but come with hats or other accessories. The leggings are only there to
allow a ‘curvy’ woman to wear a shorter dress. This is not a company
that associates its brand with anything but ‘Confident Curvy Couture’
in the form of ‘daring’ (ie, [sic] sexy) outfits…. Registrant also does not
offer a wide range of clothing. A careful review of Registrant’s website
shows only socks … and does not mention “dare to wear” at all[.]… The
registrant also sells men’s underwear – targeting “hipsters” which is
where they use “dare to wear.”17

(2) The cited mark is a “feature” of the registrant’s clothing “emblazoned” on the
underwear while “[A]pplicant’s mark is on its label [and] is not a feature of its
goods”;18 and
(3) The product lines of Applicant and the registrant are both focused on style and
“a consumer looking for a particular style will never confuse registrant’s modern
graphic designs … with applicant’s renaissance, gothic, Victorian, bohemian or
steampunk styles.”19 A consumer “looking for goth dresses … would not get confused
and buy the registered owner’s socks instead.”20

16 Appeal Brief, 9 TTABVUE 4.
17 Id. at 4-5.
18 Id. at 5.
19 Id.
20 Reply Brief, 12 TTABVUE 3.
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There are several problems with these arguments. First, as stated, we are bound
to compare the goods as identified in Applicant’s application and the cited
registration. See, e,g., In re Dixie Rests., 41 USPQ2d at 1534 (“Indeed, the second
DuPont factor expressly mandates consideration of the similarity or dissimilarity of
the [goods or] services ‘as described in an application or registration.’”). The involved
registration covers “underwear,” which is broad enough to encompass underwear for
women as well as men. Moreover, neither the application nor the cited registration is
restricted as to the style of clothing so we must consider that all styles of the type of
clothing identified may be offered.
Second, to the extent Applicant is asserting that the registrant does not use its
mark to identify socks, or does not use its mark in a trademark manner for
underwear,21 such arguments are impermissible collateral attacks against the cited
registration. In re Dixie Rests., 41 USPQ2d at 1534 (argument that cited mark “is not
actually used in connection with [the identified goods/services] amounts to a thinly-
veiled collateral attack on the validity of the registration”). The registrant’s certificate
of registration is prima facie evidence of the validity of the registration and the
registrant’s exclusive right to use the mark in connection with the specified goods. 15
U.S.C. § 1057(b).

21 Further, there is no basis for finding that a likelihood of confusion is avoided based on
where Applicant and the registrant affix their marks (clothing v. clothing label). In fact, there
is no bar to adopting alternate means of affixing the mark, so the identical marks could be
identically displayed.
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Third, the breadth of Applicant’s and the registrant’s specific clothing offerings is
not determinative of the relatedness issue. The record demonstrates that the types of
clothing covered by the involved application and the cited registration commonly
emanate from a single source. Accordingly, consumers familiar with the registrant’s
mark for socks and underwear who subsequently encounter Applicant’s mark for
women’s clothing, namely, dresses, tops, blouses, and leggings, or vice versa, are
likely to mistakenly believe that the mark identifies a product line extension.
Last, the issue is not whether consumers will confuse the goods themselves, but
rather whether consumers will confuse the source of the goods. L’Oreal S.A. v.
Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ at 831.
For all of these reasons, we find that the second DuPont factor weighs in favor of
a likelihood of confusion.
C. Similarity or Dissimilarity of the Channels of Trade and Classes
of Consumers
Under the third DuPont factor we consider “the similarity or dissimilarity of
established, likely-to-continue trade channels.” DuPont, 177 USPQ at 567. There are
no trade channel restrictions in the application or cited registration so we must
presume that the goods are sold in all normal channels of trade for such goods and to
all usual purchasers of such goods. See, e.g., Packard Press, Inc. v. Hewlett-Packard
Co., 227 F.3d 1352, 56 USPQ2d 1351, 1361 (Fed. Cir. 2000) (goods or services in an
unrestricted application or registration are presumed to travel in all normal channels
of trade to all prospective purchasers for the relevant goods or services); Squirtco v.
Tomy Corp., 697 F.2d 1038, 216 USPQ2d 937, 939 (Fed. Cir. 1983); Nike, Inc. v.
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WNBA Enters., LLC, 85 USPQ2d 1187, 1195 (TTAB 2007) (“Absent any restrictions
in the respective applications and registrations, we must presume that applicant’s
apparel and bags and opposer’s apparel are sold through all normal channels of trade
for those goods, including all the usual retail outlets.”). Accordingly, Applicant’s
argument that the registrant’s underwear is “target[ed] at ‘hipsters’” while Applicant
markets its goods to consumers of “Confident Curvy Couture” is misplaced.
The third-party evidence showing the relatedness of the goods demonstrates that
the clothing items of Applicant and the registrant are sold by the same clothing
retailers and would be encountered by the same types of consumers, namely, the
general consuming public. The third DuPont factor therefore favors a finding of
likelihood of confusion.
D. Conditions Under Which Sales are Made and the Sophistication
of the Purchasers
Applicant argues that Applicant and the registrant sell their goods only online
and “online shopping is not the same as browsing through a ‘bricks and mortar’ retail
store”:22
Online shopping is hyper-focused. Women looking for Applicant’s
dresses will be using Google to search for “goth dresses” [and]
“renaissance dresses” not socks or underwear. In-store shopping is laid
out so people are forced to walk past different sub-categories of clothing
to find what they originally wanted. Not so in online shopping. The
likelihood of confusion online is much less because vendors aren’t trying
to lure customers away from their original purchase.

22 Reply Brief, 12 TTABVUE 2.
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Applicant has not submitted any evidence or legal authority to support its
argument, but even if it had, as we have explained, neither Applicant’s application
nor the cited registration are limited to online channels of trade. Accordingly, we
must presume that the clothing is sold through all normal trade channels, including
brick-and-mortar stores. See, e.g., Octocom Sys., 16 USPQ2d at 1787; In re
i.am.symbolic, llc, 127 USPQ2d 1627, 1632 (TTAB 2018) (ordinary channels of trade
for clothing “include general clothing stores, both online and brick and mortar” and
“are not restricted to Applicant’s and Registrant’s respective websites.”).
With respect to the sophistication of the purchasers, there are presumably some
purchasers of the types of clothing covered by the involved application and cited
registration that exercise care in making a purchase, but that is not true of all
purchasers and we must consider the least sophisticated potential purchaser. Stone
Lion, 110 USPQ2d at 1163 (affirming that the Board properly considered all potential
investors for recited services, which included sophisticated investors, but that
precedent requires consumer care for likelihood-of-confusion decision to be based “on
the least sophisticated potential purchasers”). The types of clothing at issue here
include utility or other items that many consumers are likely to purchase on impulse
or without much care. Cf. In re Embiid, 2021 USPQ2d 577, at *32 (TTAB 2021) (shoes,
shirts, and sweatshirts include “all goods of the type identified, without limitation as
to their nature and price,” including “off-the-shelf items purchased by all manner of
people” and “worn by virtually everyone”) (internal quotations and quotation marks
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omitted). Accordingly, the fourth DuPont factor is neutral or slightly supports that
confusion is likely.
E. Strength of the Cited Mark
Evidence of third-party use bears on the strength or weakness of a mark. In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 744, 1751 (Fed. Cir. 2017); Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co KGAA v. New Millennium Sports,
S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1135 (Fed. Cir. 2015); Juice Generation,
Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015).
Applicant cites Google search results for “Dare to Wear”23 and “‘Dare to Wear’
clothing,” in an attempt to demonstrate that the cited mark is “used routinely by
many[,] many companies” and is “generic … when it comes to fashion, style and
beauty…. Clearly the fact that when [sic] there are 2,300,000 hits when googling ‘dare
to wear’ + clothing, and clearly larger companies are paying Google for links using
‘dare to wear’ the phrase ‘dare to wear’ is an extremely weak mark.”24

23 May 28, 2020 Office Action Response, TSDR 35-36. The search results include red
annotations, but the annotations are not supported by a declaration or affidavit.
24 Appeal Brief, 9 TTABVUE 6-7 (internal citation omitted); May 28, 2020 Office Action
Response, TSDR 35-36 (Google search result for “Dare to Wear”); December 21, 2020 Request
for Reconsideration, TSDR 4 (Google search results for “‘Dare to Wear’ clothing”). We regard
the use of the term “generic’ as hyperbole. While the weakness of the mark is relevant to the
likelihood of confusion analysis, we would only address allegations that the registered mark
is generic in a cancellation proceeding. Cosmetically Yours, Inc. v. Clairol Inc., 424 F.2d 1385,
165 USPQ 515, 517 (CCPA 1970) (“As long as the registration relied upon ... remains
uncanceled [sic], it is treated as valid and entitled to the statutory presumptions.”)).
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Applicant’s Google search results have limited probative value. They are
truncated so the nature of the references is not entirely clear.25 In re Int’l Bus.
Machines Corp., 81 USPQ2d 1677, 1679 n.3 (TTAB 2006). From what we can discern,
only two results identify third-party clothing displaying the mark DARE TO WEAR.
One of the third parties appears to be located in the United Kingdom and it is unclear
whether its goods may be purchased by U.S. consumers. The other third-party uses
of DARE TO WEAR are for different goods and services, namely, nail polish, a
television show on TLC network, a television show on Lifetime network, and a
“[f]ashion, beauty and lifestyle blog,” and have little or no probative value. In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 744, 1751 (Fed. Cir. 2017) (third-party
marks must be for the same or similar goods or services). The results identify a few
additional DARE-formative marks in sponsored results as shown below:

25 Many of the results appear to be duplicates.
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The remaining results are to advertisements that do not reference the cited mark.
One advertisement for Target uses the word “dare” referring to “Womens [sic] Dare
Clothing.”26 We cannot conclude, as Applicant asserts, that the companies in the
results “are paying Google for links using ‘dare to wear’” because Applicant has not
provided evidence regarding how Google search results are generated or the specific
keywords that the advertisers have purchased. It could be that the advertisers have
purchased the word “dare” or “wear” alone or in combination with other terms as
opposed to the phrase “dare to wear,” as the search result for Target suggests. Cf. In
re Consumer Protection Firm PLLC, 2021 USPQ2d 239, at *19 (TTAB 2021) (“We are

26 May 28, 2020 Office Action Response, TSDR 35.
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not privy to GOOGLE’s page ranking algorithm, and we cannot simply assume that
the order of appearance in search results is an indicator of the trademark significance
of Applicant’s Proposed Marks.”).
The third-party uses simply are not the quantity or type sufficient to demonstrate
that the cited mark is commercially weak. See In re i.am.symbolic, 123 USPQ2d at
1751 (identical word marks and the evidence of third-party use for the same or
similar goods fell short of “ubiquitous” or “considerable” use); Jack Wolfskin, 116
USPQ2d at 1136 (discussing “voluminous evidence” of registration and use of paw
print design elements); Juice Generation, 115 USPQ2d at 1674 & n.1 (referring to
evidence of “a considerable number,” 26 third-party marks).
With respect to conceptual strength, the third party use indicates that the word
“dare” may have some suggestive significance in the fields of clothing and fashion.
The mark DARE TO WEAR is perhaps suggestive of clothing that is risqué or in some
way adventurous. Because the cited mark is registered on the Principal Register
without a claim of acquired distinctiveness, we must treat the mark as at worst
suggestive. Trademark Act Section 7(b), 15 U.S.C. § 1057(b); New Era Cap Co. v. Pro
Era, LLC, 2020 USPQ2d 10596, at *10 (TTAB 2020). Although not as strong as an
arbitrary or fanciful mark, a suggestive mark is inherently distinctive and entitled to
a normal scope of protection.
For these reasons, the strength of the cited mark is neutral in our likelihood of
confusion analysis.
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F. Absence of Evidence of Actual Confusion
Applicant further argues that it “has been using Dare to Wear associated with the
sale of daring women’s outfits since 10/15/2006 and Registrant has been using Dare
to Wear associated with the sale of socks and men’s underwear since 11/18/14.
Applicant has received no notice of conflict nor any customers looking for graphic
designs on men’s underwear in all of those years.”27 We construe this as an argument
that there has been no actual consumer confusion.
Generally, the “lack of evidence of actual confusion carries little weight, especially
in an ex parte context” and that is the case here. In re Majestic Distilling Co. Inc., 65
USPQ2d at 1205 (internal citation omitted). We have little evidence pertaining to the
nature and extent of use by Applicant and the registrant so we cannot conclude that
there has been a meaningful opportunity for confusion to have occurred. Double Coin
Holdings, 2019 USPQ2d 377409, at *9 (explaining that “for the absence of actual
confusion to be probative, there must have been a substantial opportunity for
confusion to have occurred”); Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283,
1287 (TTAB 2007) (the probative value of the absence of actual confusion depends on
there being a significant opportunity for actual confusion to have occurred). We also
do not know whether the registrant is aware of any instances of actual confusion. In
re Guild Mort. Co., 2020 USPQ2d 10279, *7 (TTAB 2020) (“[I]n this ex parte context,

27 Appeal Brief, 9 TTABVUE 5. In making this argument, Applicant mentions “the market
interplay between the parties.” Id. We do not construe this as a reference to the tenth DuPont
factor, namely, “[t]he market interface between applicant and the owner of the prior mark”
because this factor concerns whether there are any agreements or prior dealings between
Applicant and Registrant and there is no such evidence of record.
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there has been no opportunity to hear from Registrant about whether it is aware of
any reported instances of confusion. We therefore are getting only half the story.”);
In re Opus One Inc., 60 USPQ2d at 1817 (absence of actual confusion in ex parte cases
“entitled to limited probative weight” because the Board generally has no information
regarding whether registrant is aware of any actual confusion and it is difficult to
determine whether there has been a significant opportunity for confusion to have
occurred). In any event, the test under Section 2(d) is not actual confusion but
likelihood of confusion. In re Kangaroos U.S.A., 223 USPQ 1025, 1027 (TTAB 1984).
Accordingly, the absence of any actual confusion is neutral in our likelihood of
confusion analysis.
III. Conclusion
Applicant’s mark and the cited mark are identical and identify related goods sold
through the same channels of trade to the same ordinary class of purchasers. These
factors strongly support a likelihood of confusion. The conditions under which
purchases are made, the sophistication of the purchasers, the strength of the cited
mark and the absence of actual confusion are neutral factors. Accordingly, we find
that Applicant’s standard character mark DARE TO WEAR for “women’s clothing,
namely, dresses, tops, blouses, leggings, excluding socks and underwear” is likely to
cause confusion with the identical cited mark for “socks; underwear.”28

28 Applicant asserts that DARE TO WEAR “is a significant mark for the Applicant given
Amazon’s benefits to registered owners of US Trademarks” and “[t]o deny Applicant access
to [such benefits] because of a questionable ‘confusion’ with a company selling different
products and an extremely weak mark is contrary to the spirit of trademark law.” 9
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Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.

TTABVUE 7. The evidence, however, demonstrates that confusion is not merely
“questionable,” but likely.