Dynamic Innovations, LLC dba HIMALIv.Sam Direct Global Trade Co., Limited

Trademark Trial and Appeal Board

Feb 7, 2020

91232490 (T.T.A.B. Feb. 7, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: February 7, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Dynamic Innovations, LLC
v.
Sam Direct Global Trade Co., Limited
_____

Opposition No. 91232490
_____

Dynamic Innovations, LLC, pro se.1
Sam Direct Global Trade Co., Ltd., pro se.
_____

Before Taylor, Lykos and Larkin,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Sam Direct Global Trade Co., Ltd. (“Applicant”) has filed an application seeking
registration on the Principal Register for the composite mark HIMAL HIMAL, as
shown below,

1 As discussed later in this decision, both parties were advised multiple times to retain
counsel.
Opposition No. 91232490
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for “Backpacks; Canes and walking sticks; Hiking sticks; Metal parts of canes and
walking-sticks; Sports bags; Straps for carrying sleeping bags, hammocks; Travelling
bags” in International Class 18.2 The application includes the following description:
“The mark consists of a design of a mountain formed from a stylized depiction of the
letters ‘HIMAL’ and the wording ‘HIMAL’ between two transverse lines below.” Color
is not claimed as a feature of the mark.
Dynamic Innovations, LLC dba HIMALI (“Opposer”) opposed registration of
Applicant’s mark on the ground of priority and likelihood of confusion under Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d).3 Opposer alleges ownership of its
previously used and registered mark HIMALI (in standard characters) for “Anoraks;
Baseball caps and hats; Beanies; Camp shirts; Graphic T-shirts; Headgear, namely,

2 Application Serial No. 87084552 was filed on June 27, 2016, and is based upon Applicant’s
claim of first use anywhere and in commerce as of October 23, 2014 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a).
3 1 TTABVUE. Opposer attached as Exhibit A to the notice of opposition (id. at 9-11)
screenshots showing product images of Petitioner’s goods, and as Exhibit B (id. at 12-23)
screenshots purportedly showing “overlap” between the backpack and outerwear industries,
respectively. However, except in limited circumstances, which are not present here, an
exhibit to a pleading is not evidence on behalf of the party to whose pleading the exhibit is
attached unless it is identified and introduced in evidence as an exhibit during the period for
the taking of testimony. Trademark Rules 2.122(c) and 2.122(d)(1), 37 C.F.R. §§ 2.122(c) and
2.122(d)(1). Accordingly, we give no further consideration to these materials.
Citations in this opinion are to the TTABVUE docket entry number and, where applicable,
the electronic page number where the document appears.
Opposition No. 91232490
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Hats and Beanies; Jackets; Parkas; Ski jackets; Sports caps and hats; T-shirts; Tops;
Tops for Men and Women; Yoga pants.”4
Applicant, in its answer, admitted the following allegation:
Dynamic Innovations L.L.C. has priority based on its valid
and subsisting prior registration [i.e., Registration No.
4736831]. Dynamic Innovations L.L.C. used the “HIMALI”
Mark in commerce in connection with its goods before the
filing date of U.S. Trademark Application Serial No.
87084552. Further, Dynamic Innovations L.L.C. had used
the “HIMALI” Mark in commerce before any date of first
use that the Applicant may establish in connection with
Applicant’s “HIMAL HIMAL” Mark.5
Applicant otherwise denied the salient allegations in the notice of opposition.
I. Preliminary Matters
A. Claims to be Decided
In the “Issue” section of its brief,6 Opposer identifies likelihood of confusion as its
sole claim.7 Yet, Opposer references in single paragraph sections the claims of

4 Registration No. 4736831 issued May 12, 2015. Opposer did not reference its pleaded
registration by registration number in its notice of opposition. Instead Opposer referenced it
as its “valid and subsisting prior registration.” However, Opposer identified the mark in
Registration No. 4736831 as the basis for its opposition in the online form accompanying the
notice of opposition filed through ESSTA, the Board’s electronic filing system. We thus
consider Opposer’s reference to its “valid and subsisting prior registration” to identify
Registration No. 4736831. See PPG Indus. Inc. v. Guardian Indust. Corp., 73 USPQ2d 1926,
1928 (TTAB 2005) (“Since ESTTA’s inception, the Board has viewed the ESTTA filing form
and any attachments thereto as comprising a single document or paper being filed with the
Board”); Hunt Control Sys. Inc. v. Koninklijke Philips Elecs. N.V., 98 USPQ2d 1558, 1561
(TTAB 2011) (“[The ESTTA] form, along with any attached supplementary elaboration of the
basis for the opposition, serves as the complaint in the opposition proceeding”); SchottAG v.
Scott, 88 USPQ2d 1862, 1863 n.3 (TTAB 2008) (“[T]he ESTTA generated filing form ... is
considered part of the plaintiffs initial pleading”).
5 1 TTABVUE 5 (Not. of Opp., second ¶ 7); 8 TTABVUE 3 (Answer ¶ 9).
6 As discussed below, only Opposer filed briefs.
7 19 TTABVUE 10.
Opposition No. 91232490
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dilution (stating that we need not reach this issue) and abandonment (i.e., stating
that “Applicant is no longer using the mark commercially in the United States”).
Because these claims were not pleaded, we give them no further consideration. See
Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 115 n.3 (TTAB
2009) (although dilution argued in trial brief, such arguments were not considered as
the dilution claim was unpleaded).
B. Evidentiary Issues
Before turning to the merits, we address certain of Opposer’s filings in this
proceeding to ascertain what evidence is properly of record.8 We first consider the
submissions made by Opposer during its testimony period(s). On March 1, 2018, the
penultimate day of its testimony period as reset in the Board’s April 6, 2017 order,9
Opposer filed, via ESSTA, a submission entered into the record as a “notice of
reliance,” but captioned as “OPPOSER’S BRIEF IN SUPPORT OF ENTRY OF
JUDGMENT.” As indicated in the Board’s order issued November 26, 2018, the
March 1 filing was in the nature of a motion for summary judgment and was so
construed. It was denied as untimely.10 However, recognizing that the filing may have
been Opposer’s attempt to enter evidence into the record during its testimony period,

8 As stated in footnote 2, the materials attached to Opposer’s Notice of Opposition are not
properly of record.
9 7 TTABVUE 4.
10 15 TTABVUE 1-2. Evidence attached to a motion for summary judgment is not of record
for any purposes other than the motion. To be considered at final hearing, any such evidence
must be properly introduced in evidence during the appropriate trial period. See Levi Strauss
& Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464 (TTAB 1993).
Opposition No. 91232490
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the Board reset the trial and briefing periods and advised the parties to review
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) Chapter
700 (2019), regarding trial procedures in Board proceedings.11 In addition, while
noting that an entity may represent itself, the order cautioned the parties that
“[s]trict compliance with the Trademark Rules of Practice, and the Federal Rules of
Civil Procedure (where applicable), is required of all parties before the Board,
whether or not they are represented by counsel.”12
We consider next Opposer’s putative testimony, filed January 29, 2019, the last
day of Opposer’s testimony period as reset in the Board’s November 26, 2018 order.
A review of the submission shows that Opposer attempted to make of record the
affidavit witness testimony of Marc Kopelman, the owner of Evergreen Mountain
Sports; Robert Powell, a professional mountain guide and commercial manager; and
Michael Ekdahl, an employee of an outdoor equipment company. The Board allows
the unilateral submission of testimony by affidavit pursuant to Trademark Rule 2.20,
37 C.F.R. § 2.20, and in conformance with the Federal Rules of Evidence. See
generally TBMP § 703.01(b), and the authorities cited therein. Trademark Rule 2.20

11 15 TTABVUE 5-6.
12 Indeed, the parties were so advised on multiple occasions during the course of this
proceeding, including: 1) the institution order which “strongly advised all parties to seek
counsel” (2 TTABVUE 5); 2) the Board order issued April 6, 2017 which also noted that both
parties were pro se and stated that it was “strongly advisable” to retain counsel (7
TTABVUE 2); and, as pointed out above, 3) the Board order issued November 26, 2018.
Opposition No. 91232490
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provides that “[i]nstead of an oath … or sworn statement the language of 28 U.S.C. §
1746, or declaration language [referencing 18 U.S.C. § 1001] may be used.”13
In this case, all three witness affidavits include statements (in question and
answer format) that are unsworn and are not otherwise verified under Trademark
Rule 2.20. We therefore give these affidavits no further consideration because they
have no probative value beyond that of unverified statements unsupported by
evidence. They do not constitute testimony. See e.g., McDonald's Corp. v. McKinley,
13 USPQ2d 1895, 1897 n.4 (TTAB 1989) (“unsworn statement does not constitute
testimony”).
II. The Record
In view of the foregoing, the record in this case consists of the pleadings and, by
rule, the file of Applicant’s involved application. Trademark Rule 2.122(b)(1), 37
C.F.R. § 2.122(b)(1).

13 The language of §1746, in pertinent part, requires the following statement: “I declare (or
certify, verify, or state) under penalty of perjury that the foregoing is true and correct.” If the
witness resides outside of the United States, as does one of Opposer’s witnesses, the
statement must include the language “under penalty of perjury under the laws of the United
States of America.”
Similarly, the statement required if relying on § 1001 follows:
The signatory being warned that willful false statements and
the like are punishable by fine or imprisonment, or both, under
18 U.S.C. 1001, and that such willful false statements and the
like may jeopardize the validity of the application or submission
or any registration resulting therefrom, declares that all
statements made of his/her own knowledge are true and all
statements made on information and belief are believed to be
true.
Opposition No. 91232490
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Although Opposer did not properly submit any evidence or testimony during its
assigned testimony periods, as explained, infra, we deem the pleaded registration to
be of record by virtue of admissions made by Applicant in its Answer of “its
[Opposer’s] valid and subsisting prior registration.”14 Applicant did not file any
testimony or other evidence and only Opposer filed a brief.15 See TBMP § 801.02(b)
(“The filing of a brief on the case is optional, not mandatory, for a party in the position
of defendant.”); see also Trademark Rule 2.128(a)(1), 37 C.F.R. § 2.128(a)(1).
III. Standing and Priority
Standing is a threshold issue that must be proven by a plaintiff in every inter
partes case. To establish standing in an opposition proceeding, a plaintiff must show
“both a ‘real interest’ in the proceedings as well as a ‘reasonable basis’ for its belief of

14 Although Opposer’s registration is deemed of record, we make clear that contrary to
Opposer’s assertion, the record in this case does not include “trademarks registered in the
USPTO database.” 19 TTABVUE 6. To make a registration owned by the plaintiff part of the
evidentiary record, the plaintiff could have accompanied its opposition with an original or
photocopy of the registration prepared and issued by the Office showing both the current
status of and current title to the registration, or by a current copy of information from the
electronic database records of the Office showing the current status and title of the
registration. Additionally, such registration could be made of record by notice of reliance
during the assigned testimony period. See Trademark Rule 2.122, 37 C.F.R. § 2.122; see also
TBMP § 704.03(b)(1)(A).
Similarly, Opposer’s reference, by application serial number, in its brief to various third-
party registrations does not make them of record. Not only is this “evidence” untimely, a
party that wishes to make a third-party registration of record in a Board inter partes
proceeding may do so by filing, during its testimony period, a plain copy of the registration,
a printout or a copy of information of the registration from the Office’s electronic database
records, together with a notice of reliance thereon specifying the registration and indicating
generally its relevance and associating the registration with one or more issues in the case.
See TBMP § 704.03(b)(1)(B).
15 Because Applicant did not file a brief, Opposer’s had nothing to rebut and, thus, Opposer’s
reply brief has not been considered.
Opposition No. 91232490
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damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d
1058, 1062 (Fed. Cir. 2014) (quoting ShutEmDown Sports, Inc., v. Lacy, 102 USPQ2d
1036, 1041 (TTAB 2012)); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025
(Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ
185, 189 (CCPA 1982). The U.S. Court of Appeals for the Federal Circuit has
enunciated a liberal threshold for determining standing in Board proceedings.
Ritchie, 50 USPQ2d at 1030.
Because Opposer failed to make any evidence properly of record, including its
pleaded registration, we look to the pleadings to see if Applicant made any admissions
that would make the registration of record or otherwise establish Opposer’s standing.
A registration owned by a plaintiff “will be deemed by the Board to be of record in an
inter partes proceeding if the defendant’s answer to the complaint contains
admissions sufficient for the purpose, i.e., admission to the current existence of the
registration and the plaintiff’s ownership of the registration.” TBMP
§ 704.03(b)(1)(A).
As noted above, Applicant admitted that Opposer has priority based on “its valid
and subsisting prior registration,” and that Opposer used the pleaded HIMALI mark
in commerce in connection with its goods before the filing date of involved Application
Serial No. 87084552 or any date of first use that Applicant may establish in
connection with Applicant’s HIMAL HIMAL mark.” Applicant, having tacitly
admitted Opposer’s ownership of the pleaded registration, and having specifically
admitted the registration’s validity and subsistence, we deem pleaded Registration
Opposition No. 91232490
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No. 4736831 to be properly of record. As a result, Opposer has established its standing
in this proceeding. See also Estate of Biro v. Bic Corp., 18 USPQ2d 1382, 1383 & n.2
(TTAB 1991) (standing established by defendant’s admission in its answer). In
addition, because we deem Opposer’s pleaded registration to be of record, which
Applicant has not counterclaimed to cancel, priority is not in issue in the opposition
with respect to the mark and the goods listed therein. See Top Tobacco LP v. N. Atl.
Op. Co., 101 USPQ2d 1163, 1169 (TTAB 2011) (citing King Candy, Co. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 82 USPQ 108 (CCPA 1974)); see also Massey
Junior Coll., Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 181 USPQ 272, 275 n.6
(CCPA 1974) (“prior use need not be shown by a plaintiff relying on a registered mark
unless the defendant counterclaims for cancellation”). Moreover, Applicant did not
challenge Opposer’s priority and, in fact, admitted it.
IV. Likelihood of Confusion
Our determination under Trademark Act Section 2(d) is based on an analysis of
all probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d
1201 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations
are the similarities between the marks and the similarities between the goods and
services. See 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
Opposition No. 91232490
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differences in the marks.”). Inasmuch as the only evidence in this case is the
application file and the pleaded registration, our inquiry will focus primarily on these
two factors.
A. The Marks
We first consider the DuPont likelihood of confusion factor of the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005)
(citing du Pont, 177 USPQ at 567). “Similarity in any one of these elements may be
sufficient to find the marks confusingly similar.” In re Inn at St. John’s, 126 USPQ2d
1742, 1744 (TTAB 2018), aff’d, Slip Op. No. 18–2236 (Fed. Cir. Sept. 13, 2019) (mem.);
(citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). “The proper test is not a
side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently
similar in terms of their commercial impression’ such that persons who encounter the
marks would be likely to assume a connection between the parties.” Coach Servs. Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012).
See also San Fernando Electric Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d
683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d
1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. June 5, 1992). The
proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. L’Oreal S.A. v. Marcon, 102 USPQ2d
1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ
Opposition No. 91232490
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335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975).
We compare Applicant’s HIMAL HIMAL and design mark, , with
Opposer’s standard character mark HIMALI and find them similar in appearance
and sound. They both include as the only letters of the literal elements in Applicant’s
mark, and as the first five of six letters in Opposer’s mark, the letters H, I, M, A, and
L. The addition of the letter I to the end of Opposer’s mark is unlikely to be noticed
and, even if noticed, makes far too minor a difference to distinguish Applicant’s mark
from Opposer’s. See Weiss Assocs., Inc. v. HRL Assocs., 902 F.2d 1546, 14 USPQ2d
1840, 1841 (Fed. Cir. 1990) (“It is especially hard to distinguish between TMS and
TMM when the marks only differ by the last letter”).
Likewise, the design elements in Applicant’s mark fail to distinguish it from
Opposer’s mark. While the mountain design, described in the application as “a
mountain formed from a stylized depiction of the letters ‘HIMAL,’” is clearly
noticeable, so too, are the letters H-I-M-A-L that make up the mountain in its
entirety. Because those individual letters are plainly visible, the commercial
impression conferred by the word HIMAL is not diminished. Indeed, where both
words and a design comprise a mark, the words are normally accorded greater weight
because they are more likely to make an impression upon purchasers, would be
remembered by them, and would be used by them to call for the goods. In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (citing CBS, Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“in a composite mark
Opposition No. 91232490
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comprising a design and words, the verbal portion of the mark is the one most likely
to indicate the origin of the goods to which it is affixed”). Here, it is the word HIMAL
that will be used by consumers to call for the Applicant’s goods. Likewise, the second
design element, which consists of two transverse lines, merely borders the block letter
rendition of HIMAL in Applicant’s mark. See Herbko Int’l, Inc. v. Kappa Books, Inc.,
308 F.3d 1156, 64 USPQ2d 1375, 1380-81 (Fed. Cir. 2002) (quoting CBS, Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir.1983) (“[M]inor design features
do not necessarily obviate likelihood of confusion arising from consideration of the
marks in their entireties.”).
The record is devoid of any evidence as to the meaning of either mark. We find
unavailing Opposer’s argument that the marks are likely to be confused because “the
mountainous and ‘outdoorsy’ themes surrounding the marketing of the [respective]
products are overlapping.”16 In contrast to an infringement action where the court
examines the visual appearance of the marks in the context of actual use, in
proceedings before the Board, only the drawing of the mark is relevant. In re Infinity
Broad. Corp. of Dallas, 60 USPQ2d 1214 (TTAB 2001) (“in Board proceedings,
likelihood of confusion is determined independent of the context of actual usage”); see
also Jim Beam Brands Co. v. Beamish & Crawford, Ltd., 937 F.2d 729, 19 USPQ2d
1352 (2d Cir. 1991).

16 19 TTABVUE 18.
Opposition No. 91232490
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We recognize that in comparing the marks, we must consider them in their
entireties. We nonetheless find that the similarities outweigh any differences
between them, and that they engender very similar commercial impressions.
The du Pont factor of similarity of the marks thus favors a finding of likelihood of
confusion.
B. The Goods
We next consider the DuPont factor regarding the relatedness of the parties’
respective goods. It is not necessary that the goods be identical or competitive, or even
that they move in the same channels of trade, to support a finding of likelihood of
confusion. Rather, it is sufficient that the goods are related in some manner, or that
the circumstances surrounding their marketing are such that they would or could be
encountered by the same persons in situations that would give rise, because of the
similarity of the marks, to a mistaken belief that they originate from the same source
or that there is an association or connection between the sources of the goods. Coach
Servs., 101 USPQ2d at 1721; In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB
2009). In making our determination, we must look to the goods as identified in the
application and in the pleaded registration.
Applicant’s goods are identified as “backpacks; canes and walking sticks; hiking
sticks; metal parts of canes and walking-sticks; sports bags; straps for carrying
sleeping bags, hammocks; travelling bags” and Opposer’s goods are identified as
“anoraks; baseball caps and hats; beanies; camp shirts; graphic T-shirts; headgear,
namely, hats and beanies; jackets; parkas; ski jackets; sports caps and hats; T-shirts;
Opposition No. 91232490
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tops; tops for men and women; [and] yoga pants.” Because there is no evidence
properly of record regarding the relatedness of the goods, we look to the
identifications themselves. In so doing, we do not find on the face thereof that
Opposer’s clothing items are related to Applicant’s walking sticks and canes,
backpacks and traveling bags.
Where the goods of the parties are on their face specifically different, it is
incumbent upon Opposer, notwithstanding its pro se status, as the party having the
burden of proof, to show that such goods are related in some viable fashion or that
they are marketed or promoted under circumstances and conditions that could bring
them to the attention of the same purchasers under circumstances that could cause
such purchasers reasonably to assume, because of the similarities of the parties’
marks, that the particular goods share a common origin or sponsorship. The record
fails to do so, and we find Applicant’s identified goods unrelated to Opposer’s clothing
items.
We likewise find Opposer’s unsupported claim that “the proposed goods in
Applicant’s application are a natural extension”17 of its business unpersuasive.

17 19 TTABVUE 11. Similarly, we find unpersuasive Opposer’s argument that it intends to
expand its product offering to include backpacks, sleeping bags and tents, based on its
abandoned (due to a 3 year time limit to use the marks in commerce) applications, Serial
Nos. 86225636, 86225657, and 86225668. Not only did Opposer include for the first time with
its brief merely a listing of these applications, even if they were of record, applications,
whether live or abandoned, are not evidence of anything except for the dates on which they
are filed. In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016); Interpayment Servs.
Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1467 n.6 (TTAB 2003) (applications are only
probative to show that the application has been filed).
Opposition No. 91232490
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The DuPont factor of the relatedness of the goods strongly favors a finding of no
likelihood of confusion.
C. The Channels of Trade/Classes of Purchasers
Similarly, because we cannot determine the trade channels or classes of
purchasers from the identifications themselves, and because there is there is nothing
in the record highlighting the usual trade channels and classes of purchasers for
either party’s goods, we make no finding on this DuPont factor. It is therefore neutral
in our likelihood of confusion analysis.
D. Other Arguments
Opposer’s argument that “Applicant’s mark will risk more than confusion to the
origin of the goods, it will create a safety liability for the consumer,”18 is unavailing.
We so find because we confine our likelihood of confusion analysis to the goods as
identified in Applicant’s application and Opposer’s registration, and we have found
the parties’ respective identified goods unrelated.
Finally, Opposer’s argument that Applicant does not value its mark enough to
participate in this proceeding is misplaced. It is Opposer, as plaintiff in this
proceeding, who bears the burden of proof with respect to its claim of likelihood of
confusion. See, e.g., Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d
1303, 1305 (Fed. Cir. 2002) (“[t]he burden of proof rests with the opposer . . . to
produce sufficient evidence to support the ultimate conclusion of [priority of use] and

18 19 TTABVUE 19.
Opposition No. 91232490
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likelihood of confusion”); Hoover Co. v. Royal Appliance Mfg. Co., 238 F.3d 1357, 57
USPQ2d 1720, 1722 (Fed. Cir. 2001) (“[i]n opposition proceedings, the opposer bears
the burden of establishing that the applicant does not have the right to register its
mark”); Sanyo Watch Co. v. Sanyo Elec. Co., 691 F.2d 1019 , 215 USPQ 833, 834 (Fed.
Cir. 1982) (“[a]s the opposer in this proceeding, appellant bears the burden of proof
which encompasses not only the ultimate burden of persuasion, but also the
obligation of going forward with sufficient proof of the material allegations of the
Notice of Opposition, which, if not countered, negates appellee’s right to a
registration”). Clinton Detergent Co. v. Proctor & Gamble Co., 302 F.2d 745, 133
USPQ 520, 522 (CCPA 1962) (“[o]pposer ... has the burden of proof to establish that
applicant does not have the right to register its mark”). It is therefore Opposer’s
obligation to satisfy its burden of proof, despite Applicant’s choice to offer no evidence.
E. Balancing the Factors
Having considered all the evidence and arguments on the relevant DuPont factors,
we conclude that although the parties’ marks are similar, Opposer has not met its
burden to show that the respective goods are sufficiently related, such that they
would be encountered by the same persons under circumstances that would give rise
to the mistaken belief that they originate from the same source. Accordingly, we find
that Opposer has failed to prove its claim of likelihood of confusion by a
preponderance of the evidence.
Decision: The opposition is dismissed.