Hybrid Athletics, LLCv.Hylete LLC

Trademark Trial and Appeal Board

Dec 15, 2016

No. 91213057 (T.T.A.B. Dec. 15, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: December 15, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_______
Trademark Trial and Appeal Board
_______
Hybrid Athletics, LLC
v.
Hylete LLC
_______
Opposition No. 91213057
_______
Michael J. Kosma of Whitmyer IP Group LLC for
Hybrid Athletics, LLC.

Kyriacos Tsircou and John Begakis of Tsircou Law PC for
Hylete LLC.
_______
Before Mermelstein, Wellington and Shaw,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Hylete LLC (“Applicant”) has filed an application seeking to register the mark
shown below (hereinafter, “Applicant’s H design” mark) for “athletic apparel, namely,
shirts, pants, shorts, jackets, footwear, hats and caps” in International Class 25:
Opposition No. 91213057

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.1
Hybrid Athletics, LLC (“Opposer”) opposes registration of Applicant’s mark on the
ground of likelihood of confusion under Section 2(d) of the Trademark Act. Opposer
pleads, inter alia, ownership of an application (Serial No. 85837045) for the mark
shown below (hereinafter, “Opposer’s H design” mark) in connection with “conducting
fitness classes; health club services, namely, providing instruction and equipment in
the field of physical exercise; personal fitness training services and consultancy;
physical fitness instruction” in International Class 41:
.2
Opposer also pleads common law rights resulting from its use of the same mark on
“athletic apparel, including shirts, hats, shorts and socks” since August 1, 2008.3
Opposer alleges that “Applicant's Mark so resembles Opposer’s Mark, as to be likely

1 Application Ser. No. 85837045, filed on January 30, 2013, based upon Applicant’s allegation
of first use anywhere and in commerce on April 9, 2012, under Section 1(a) of the Trademark
Act.
2 1 TTABVUE 4; Notice of Opposition ¶ 4. In an order denying summary judgment, the Board
noted that this application matured into Registration No. 4480850 on February 11, 2014, and
Opposer submitted a copy the registration in support of the summary judgment motion.
However, as explained infra, a copy of the registration was not properly introduced at trial.
3 Id.; Notice of Opposition ¶¶ 2-3.
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to cause confusion, or to cause mistake, or to deceive as to the source of the identified
goods within the meaning of Section 2(d).”4
Applicant, in its answer, denied the salient allegations of the notice of opposition.
I. The Record, Pleaded Registrations and Evidentiary Objections
The Record
The record includes the pleadings and, by way of Rule 2.122, the file of the
involved application.
Opposer has introduced the testimony, with accompanying exhibits, of the
following individuals: Robert Orlando,5 Ian Jengten (including rebuttal testimony),6
Mark Tuthill,7 David Castro,8 Dale Saran,9 Jason Leydon,10 and Syncere Martinez.11

4 Id. at 6; ¶ 11.
5 49-54 TTABVUE (redacted copy of testimony and exhibits); 55-58 TTABVUE (designated
“confidential” copy testimony and exhibits).
6 29 TTABVUE and rebuttal testimony at 59 TTABVUE.
7 30 TTABVUE.
8 33 TTABVUE.
9 31 TTABVUE.
10 32 TTABVUE.
11 42 TTABVUE.
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Applicant, for its part, introduced the testimony, with accompanying exhibits, of
the following individuals: Abbe Guddal,12 James Wardlow,13 Ron Wilson,14 Garrett
Potter,15 Jennifer Null,16 and Matt Paulson.17
Opposer’s Pleaded Application and Asserted Registrations
In its brief, Opposer notes that it pleaded ownership of an application which
“matured to registration on February 11, 2014, Registration No. 4480850, claiming a
date of first use in interstate commerce at least as early as August 1, 2008 … [and it]
is currently valid and subsisting.”18 Opposer also mentions in its brief that it is the
owner of “registration No. 4609469 [which] is currently valid and subsisting.”19 There
is no citation to the record for copies of these registrations. Upon review of the
aforementioned testimony and exhibits, we note that Opposer did not introduce at
trial a copy of the registration that matured from its pleaded application, or any other
registration that it may own. Although an opposer is not required to amend the notice
of opposition to assert that a pleaded application has matured into a registration, it
must make any subsequently issued registrations of record. See UMG Recordings Inc.
v. O’Rourke, 92 USPQ2d 1042, 1046 (TTAB 2009), citing Corporate FitnessPrograms

12 34 TTABVUE.
13 35-36 TTABVUE.
14 37 TTABVUE.
15 38 TTABVUE.
16 39 TTABVUE.
17 40 TTABVUE.
18 60 TTABVUE 12.
19 Id. at 13.
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Inc. v. Weider Health and Fitness Inc., 2 USPQ2d 1682, 1683-84, n.3 (TTAB 1987);
Black & Decker Corp. v. Emerson Electric Co., 84 USPQ2d 1482, 1485 n.4 (TTAB
2007). Furthermore, although Opposer submitted copies of registrations in support
of its summary judgment motion,20 the Board clearly informed the parties in its order
denying the motion that “evidence submitted in support of or in opposition to a motion
for summary judgment is of record only for consideration of that motion” and that
“[a]ny such evidence to be considered at final hearing must be properly introduced in
evidence during the appropriate trial period.”21 Applicant has not treated any
registration as being of record nor has Applicant admitted that Opposer is the owner
of any valid and subsisting registrations. Accordingly, on this record, Opposer has not
established that it is owner of any of the registrations mentioned in its brief. As a
consequence, Opposer must prove and rely only on its pleaded prior common law
rights in its H design mark for purposes of establishing a likelihood of confusion with
Applicant’s H design mark.
Evidentiary Objections
With its trial brief, Opposer attached a list of its objections to testimony and
exhibits introduced by Applicant.22 The basis for the vast majority of the objections is
the Board’s granting of Opposer’s motion for sanctions prohibiting Applicant from
“submit[ting] at trial or rely[ing] on as evidence at trial, any information or

20 Submitted as “Exhibit B” to Opposer counsel’s declaration. 18 TTABVUE 193-200.
21 26 TTABVUE 3 at Note 3.
22 60 TTABVUE 56-67; “Appendix A” to Opposer’s brief.
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documents that were the subject of Opposer’s discovery requests, but which were not
served on Opposer prior to the filing of Opposer’s motion for sanctions.”23
Applicant, for its part, has objected to testimony and exhibits, as well as
statements made within Opposer’s brief, on various bases, including lack of
relevance, hearsay, immaterial, lacks foundation or personal knowledge and
speculation.24
The parties have responded to each other’s evidentiary objections. We do not
address the numerous individual objections raised by the parties, unless the objected-
to evidence is necessary to make a pertinent factual finding or it has a direct bearing
on our likelihood of confusion analysis. We do, however, point out that Applicant’s
reasons for its introduction of testimony or documents, in spite of possibly being
subject to the Board’s sanctions order, are not well taken.25 Applicant had an
opportunity to argue whether sanctions were appropriate in the first place or to
request reconsideration of the Board’s order. We will not reconsider the Board’s
sanction order at this late stage — at least not absent extraordinary circumstances
not presented in this case.

23 15 TTABVUE; Board order issued on November 18, 2014, referencing Opposer’s motion for
sanctions filed on August 13, 2014.
24 62 TTABVUE 147-166; “Applicant’s Statement of Objections” attached to Applicant’s brief.
25 In particular, Applicant, in its response to Opposer’s objections, argues that its submissions
are “substantially justified” because “(1) such evidence is important to establish the amount
of effort that Applicant has dedicated to establishing itself as a premium fitness apparel
company; and (2) Applicant did not believe such documents and testimony would be
important to its case until after Opposer presented its Trial Testimony.” Id.
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II. Brief Background
By way of background, we begin by mentioning a third-party whose activities have
a role in this proceeding. CrossFit, Inc. is worldwide organization that licenses gyms
to become CrossFit affiliates who then promote particular method of strength and
conditioning exercise and fitness. In 2005, there were approximately 20 to 30
CrossFit-affiliated gyms and today there are 13,000,26 with approximately 7,000
centers in the United States.27 CrossFit hosts various competitions, including the
“CrossFit Games,” with approximately 273,000 individuals participating.28 At these
competitions, vendors set up booths and sell related goods, including athletic
clothing.29
Opposer was founded by Mr. Robert Orlando in 2008 when he opened a personal
training facility under the name “Hybrid Athletics.”30 Mr. Orlando is Opposer’s
principal owner and, in 2008, he began sending workout videos to CrossFit for airing
on their website. In 2009, Opposer became a CrossFit affiliate.31 Mr. Orlando began
to compete in CrossFit competitions in 2009, and, by Applicant’s own account, Mr.
Orlando gained “personal notoriety and success in the world of CrossFit.”32 Mr.

26 Castro Dep. 13:15-19.
27 Saran Dep. 21:4.
28 Id. 23:11-14.
29 Castro Dep. 37:1-38:7.
30 Orlando 19:4-10.
31 Orlando 32:16-34:16.
32 62 TTABVUE 11.
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Orlando ceased competing in CrossFit competitions in 2011, but Opposer remains a
CrossFit-affiliated gym.
Applicant is primarily an athletic apparel company with an eye on “the everyday,
functional fitness athlete, who cross-trains in a variety of athletic pursuits and
displays an infinite capacity to take on new challenges.”33 Applicant began using its
H design mark in 2012 on apparel products with the goal of “tak[ing its] first run of
products to the 2012 CrossFit Games, and entering into strategic partnerships with
athletes, trainers, fitness magazines, and even fitness equipment companies like
TRX.”34 In April 2013, Applicant approached Opposer’s principal, Mr. Orlando, in
connection with its partnership program with athletes and to help promote
Applicant’s apparel products.35 In response, Mr. Orlando expressed concern
regarding the similarity of parties’ names and their stylized H marks.36 Sales of
Applicant’s apparel with the stylized H mark have grown since 2012 and Applicant
maintains a notable presence in social media, including Facebook and Instagram.
III. Standing.
Standing is a threshold issue that must be proven by a plaintiff in every inter
partes case. To establish standing in an opposition or cancellation proceeding, a
plaintiff must show “both a ‘real interest’ in the proceedings as well as a ‘reasonable

33 62 TTABVUE 8, citing to Wilson 92:8-98:11.
34 Id.
35 Paulson Dep. 42:8-25. Mr. Paulson also acknowledged that Respondent’s name, “Hylete,”
is “a condensed ‘Hybrid Athlete’ ….” Id. at 79:21-22, Orlando Exhib. 31 (comprising a printout
of a text conversation between Mr. Paulson and Mr. Orlando).
36 Id.
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basis' for its belief of 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 Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). The Court of Appeals
for the Federal Circuit has enunciated a liberal threshold for determining standing
in Board proceedings. Ritchie, 50 USPQ2d at 1030. Here, the issue of Opposer’s
standing is not disputed; in any event, we find that, through the testimony of Mr.
Orlando and others, Opposer has established that it has used its H design mark in
connection with health club services and on clothing since 2008.37 The record shows
that Opposer is more than a mere interloper and has a real interest in and standing
to bring this proceeding.
IV. Priority.
As mentioned, Opposer did not make of record any registrations that it owns and
priority is therefore in issue. Cf. King Candy Company v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108 (CCPA 1974) (in an opposition where the opposer owns
a registration, and of course the applicant only has an application, priority is not in
issue). There is no dispute in this case that Opposer has priority and Opposer has
demonstrated its first use of its H design mark in connection with health club services

37 See, e.g., Orlando Dep. 29:13-17.
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and on clothing as early as December 2008.38 This date precedes Applicant’s first use
date in 2012.39
V. Likelihood of confusion.
Our determination of the issue of likelihood of confusion under Section 2(d) of the
Trademark Act is based on an analysis of all of the probative facts in evidence that
are relevant to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., Inc.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003).
The Goods
We first consider the du Pont factor involving “the similarity or dissimilarity and
nature of the goods or services as described in an application or registration or in
connection with which a prior mark is in use.” Du Pont, 177 USPQ at 567. In this
case, the involved goods are identical inasmuch as Applicant’s goods identified in the
involved application are “athletic apparel, namely, shirts, pants, shorts, jackets,
footwear, hats and caps” and Opposer has used his mark on some of the same goods,
namely, shirts, shorts and jackets. Opposer submitted the following images from its
online store depicting use of its mark on goods:40

38 Id.; see also, Orlando Dep. 5:19-6:14 and Exhibit 2 (comprising a declaration and attached
exhibits), 49:12-55:22 and referenced exhibits.
39 The involved application contains an allegation of first use anywhere and in commerce on
April 9, 2012, and Applicant established this use date through the testimony of Mr. Paulson.
40 Id., Exhibit 8.
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Because Opposer’s and Applicant’s goods are identical in part, this factor strongly
favors Opposer and a finding of a likelihood of confusion.
Channels of Trade and Classes of Consumers
We now consider the du Pont factor involving the established and likely-to-
continue channels of trade, as well as the classes of consumers to whom these goods
are being offered for sale. Because it relies on its common-law rights, for the purposes
of this analysis, Opposer can claim only those channels of trade and classes of
consumer which it has established on the record. Nonetheless, because the
identification in the Application has no restrictions on channels of trade, or classes of
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customers we must presume that Applicant’s goods travel in all channels of trade
appropriate for such goods, and to all usual purchasers of them, which necessarily
includes Opposer’s actual channels of trade and classes of consumers for the identical
goods. Cf. In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir.
2012) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268, 62
USPQ2d 1001, 1005 (Fed. Cir. 2002)). Even without this presumption, the record
establishes that the parties’ goods have been found in the same trade channels offered
to the same consumers. Applicant’s own witness, Mr. Paulson, admits that both
Opposer and Applicant have encountered each other at some of the same fitness
events and trade shows.41 Indeed, by their own admissions, Applicant and Opposer
have at one point or another attempted to market their fitness apparel to the same
consumers at CrossFit events.42
Accordingly, the third du Pont factor involving channels of trade and classes of
customers favors a finding of likelihood of confusion.
Strength or Weakness of Opposer’s Mark
We next turn to the relative strength or weakness of Opposer’s mark. Opposer
argues that its H design mark is “extraordinarily well-known and famous throughout
the health and fitness industry, but especially in the world of CrossFit.”43 In support,
Opposer relies primarily on the renown of its founder, Robert Orlando, in the CrossFit

41 40 TTABVUE 50 (Paulson Dep. 50:20-51:4) and 54 (Paulson Dep. 53:1-4).
42 See, e.g., Applicant’s brief (62 TTABVUE 8 “Applicant’s goal was to take this first run of
products to the 2012 CrossFit Games, as well as to enter into strategic partnerships with
athletes”); and Saran Dep. 64:17-65:11.
43 60 TTABVUE 6.
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community and resulting exposure of its H design mark. Opposer asserts that the
mark has been used “extensively in commerce since 2008 in the sale of gym and
fitness services, fitness apparel and fitness equipment, including axles, farmer’s
handles, yokes, logs, and atlas stone molds, all over the world” and “appears
nationally in competitions, advertisements, fitness videos, fitness magazines and
social media.”44
Applicant, on the other hand, asserts that Mr. Orlando’s “personal notoriety and
success in the world of CrossFit” are irrelevant in this matter and argues that
Opposer’s “direct-to-consumer apparel business has seen significant decline since
2012.”45 Applicant argues that Opposer’s mark is not well-known in the field of
apparel and that Opposer’s apparel business is “secondary to Opposer’s operation of
its gym and equipment business,” pointing to Mr. Orlando’s testimony that sales of
apparel account for only 15-20% of Opposer’s total revenue.46 Applicant further
argues that there is “crowded field of letter marks,” and that the involved marks “co-
exist with [135] other ‘H’ marks registered … in connection with athletic-related
clothing.”47 With respect to Applicant’s latter argument, the only evidence that it
relies on consists of a listing of registrations that were submitted for the first time
with its brief and, accordingly, are not properly of record.48

44 Id. at 9.
45 62 TTABVUE 11.
46 Id. at 12, citing to Orlando Dep. 161:6-162:5.
47 Id.
48 Opposer’s objection, raised in its reply brief at 64 TTABVUE 7, to this evidence is sustained.
See TBMP Section 704.03 (introduction of registrations not subject of the proceeding).
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Upon review of the entire record, we do not find Opposer’s H design mark to be
famous for athletic apparel. Indeed, Opposer’s sales of apparel were relatively modest
for the years 2011-201449 and while the evidence shows Mr. Orlando has had
considerable exposure within the fitness community, it has not been demonstrated
that Opposer’s H design mark, as used on clothing, has benefitted significantly from
that exposure. In other words, we see no direct or substantial correlation between Mr.
Orlando’s notoriety within the fitness community and the popularity of Opposer’s H
design mark on clothing. On the other hand, there is no evidence to support
Applicant’s arguments that Opposer’s mark is weak or that it lacks distinctiveness in
the context of athletic apparel or in general. Accordingly, the du Pont factor involving
the fame of Opposer’s mark and the factor involving any possible weakness as a result
of similar marks being used on the same or related goods remain neutral in our
likelihood of confusion analysis.
Similarity of the Parties’ Marks
We now consider the du Pont factor of the similarity or dissimilarity of the marks
in terms of their 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). The proper test is not based on consumers
having the luxury of a side-by-side comparison of the marks, as they appear below,
but “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

49 Orlando Dep. 159:16-18.
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connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation omitted). Where, as
here, the parties use their marks in connection with goods that are legally identical,
the similarity needed to support a determination that confusion is likely declines. See
Bridgestone Ams. Tire Operations LLC v. Fed. Corp., 673 F.3d 1330, 102 USPQ2d
1061, 1064 (Fed. Cir. 2012).
Again, the two involved marks are as follows:

and .
The points of similarity and dissimilarity between these marks are visually
apparent. The parties acknowledge that each mark is a stylized version of the letter
H and this plays a role the overall commercial impressions engendered by the marks.
To the extent consumers are aware of the fact that both parties’ names begin with
the letter “H,” the letter will have some significance. Even if consumers attribute no
specific meaning or relevance to the letter H, they may still view the marks in the
same manner, namely, an arbitrary use of a stylized letter H for athletic clothing. We
also keep in mind that the proper emphasis is on the recollection of the average
consumer, who normally retains a general rather than a specific impression of marks.
See, e.g., Grandpa Pidgeon’s of Missouri, Inc. v. Borgsmiller, 477 F.2d 586, 177 USPQ
573 (CCPA 1973); Envirotech Corp. v. Solaron Corp., 211 USPQ 724 (TTAB 1981);
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and Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). Upon viewing
the marks once, consumers attempting to recall or verbalize either mark at a later
date will find it easier to describe the marks, in general, as being fanciful
representations of the letter H, rather than attempting to remember and relate the
particular design features of the marks.
This is not to say we can ignore the different manners in which the same letter H
is presented in the parties’ marks. In typographic terms, the “crossbar” in Applicant’s
mark is lower than in Opposer’s mark and the interior space is circular rather that
straight. We also agree in general with Applicant’s description of the design elements
found in its mark (“the imbalance between the bottom portion and the top portion,
the significant curves, the incorporation of circles and the infinity symbol, and the
overall sharp weapon-like feel”), as well as its characterization of Opposer’s mark as
having a “heavy, thick, and bulky overall” appearance.50 On the other hand, we are
also able to discern at least one design similarity in the marks, namely, they each
have a “stretched wide” letter appearance; that is, the letter H bows out in the center-
top portions of both marks. The “stem” portions of the letter “H” in both marks are
narrow at the top, extend outwards at the shoulder, and narrow again at the base.
We have considered the relevance of the visual differences, and at least one similarity,
between the marks and the effect these may have on consumers in terms of
distinguishing the marks. While there are specific differences that can be seen when

50 62 TTABVUE 18.
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the marks are side-by-side, as shown above, we reiterate that this is not how the
marks are encountered by consumers.
In this case and for the reasons outlined above, however, we conclude that the two
marks are overall more similar than not. The design differences between the two
marks are outweighed by the fact that are both stylized versions of the same letter,
H, and will thus have similar commercial impressions. See Inter IKEA Sys. B.V. v.
Akea, LLC, 110 USPQ2d 1734, 1741 (TTAB 2014) (the similarities of fanciful or
arbitrary marks are often more important than their differences). We reiterate that
our decision is based on the record before us and, as already discussed, it has not been
demonstrated that the letter H is conceptually weak or diluted in the context of the
involved goods or in general for that matter.
Accordingly, the du Pont factor involving the similarity of the marks also weighs
in favor of finding a likelihood of confusion.
Instances of Actual Confusion
We now turn to the du Pont factor involving instances of actual confusion between
the parties’ marks. As Professor McCarthy points out:
Actual Confusion is the Best Evidence of a Likelihood of Confusion.
Convincing evidence of significant actual confusion occurring under actual
marketplace conditions is the best evidence of a likelihood of confusion.
Any evidence of actual confusion is strong proof of the fact of a likelihood
of confusion. No matter how convinced a trial judge may be of the absence
of any likelihood of confusion, he or she must at least listen to evidence
presented of actual confusion. The Fifth Circuit stated that, “There can be
no more positive or substantial proof of the likelihood of confusion than
proof of actual confusion.” Other courts agree. Obviously, the evidence of
actual confusion is the testimony of a “reasonably prudent purchaser” who
was in fact confused by defendant's trademark.

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J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:13
(Fourth Edition 2016).51
The Board, and our primary reviewing Federal appellate court, have long agreed
on the importance of any evidence of actual confusion to the analysis of whether there
is a likelihood of confusion. See, e.g., In re Majestic, 65 USPQ2d 1201 (“A showing of
actual confusion would of course be highly probative, if not conclusive, of a high
likelihood of confusion”) and Molenaar, Inc. v. Happy Toys Inc., 188 USPQ 469 (TTAB
1975) (single instance of confusion is at least “illustrative of how and why confusion
is likely”).
In spite of there being only three to four years of coexistence of the involved marks,
Opposer asserts there has been “an abundance of instances of actual consumer
confusion.”52 In support, Opposer relies on the testimony of its witnesses who either
testify that they themselves were confused as to source or that they have encountered
others who expressed confusion as to source or a relationship between the parties
based on a similarity of the H design marks. In its brief, Opposer identifies fourteen
episodes of what it calls instances of actual confusion. Some of these instances merely
involve individuals expressing their opinions regarding the similarity of the parties’
H design marks53 or inquiring into whether there is a relationship between the

51 Citations omitted, except to note that reference to Fifth Circuit case is from World Carpets,
Inc. v. Dick Littrell's New World Carpets, 438 F.2d 482, 168 USPQ 609 (5th Cir. 1971), and
reference to a “reasonably prudent purchaser” is from § 23:91 of the same treatise.
52 31 TTABVUE 31.
53 On March 10, 2013, a man named Jessie Clay wrote to Mr. Orlando, “you should investigate
HYLETE …unless they r a branch of Hybrid they chicken hawked your logo…heads up.”
Orlando Dep. 129:10-23, Exhibit 2. On December 5, 2013, an individual wrote on Opposer’s
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parties.54 Other instances, however, involve individuals with experience in the fitness
industry who, already familiar with Opposer’s H design mark, expressed source
confusion upon encountering Applicant’s H design mark. For example, Mr. Leydon,
owner of a CrossFit-licensed gym in Connecticut, testified that he was confused after
ordering shorts from Applicant that had Applicant’s H design mark co-branded with
his gym’s logo:55
[I]t looks a lot like [Opposer’s H design mark]. There was confusion. For
myself, I didn’t see [Applicant’s H design mark] before I got the shorts with
my logo on it. When I did get it, I thought that [Opposer] had some sort of
role in it because the H’s are similar…when my wife saw the shorts, again
she thought [Opposer] had [taken] on some sort of clothing line because the
H’s were very similar.
Two employees of CrossFit also testified that they each mistakenly believed there
was a connection between the Applicant and Opposer upon encountering Applicant’s
H design mark at CrossFit regional events. One of these instances involved Mr.
Castro, a Director of CrossFit games; he testified that in 2013 at a CrossFit Regional
event, he encountered Applicant’s H design mark for the first time and approached
an employee at Applicant’s booth to inquire, “Oh, Rob’s selling here, is he here?” Mr.
Castro testified that Applicant’s employees at the booth responded that they did not
have any affiliation with Opposer. The substance of this encounter was corroborated

Facebook website asking, “How do [you] feel about Hylete athletics, basically copying your
logo and name?” Orlando Dep. 133:19-134:10, Exhibit 41.
54 On July 28, 2013, a CrossFit consumer from Hawaii wrote an email to Mr. Orlando, “At
the games, I see a lot of people wearing Hylete clothing and posting on Facebook. Does it have
anything to do with Hybrid Athletics? The logo looks a lot like Hybrid and the name is very
similar so was just wondering.” Orlando Dep. 130:19-131:19, Exhibit 2.
55 Leydon Dep. 22:17-23:23; Exhibits 6-7.
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by Applicant’s Director of Sales, Ms. Null, who was present at the booth at the time.56
In addition, Mr. Orlando has testified that, on numerous occasions, he has
encountered individuals with Applicant’s H design mark-branded clothes who
mistakenly thought the clothes originated from Opposer because of the similar H
design marks.57
Applicant has attacked Opposer’s actual confusion evidence as being “insufficient”
and as either “merely unsubstantiated inquiries concerning an affiliation between
Applicant and Opposer”58 or as “testimony of … Mr. Orlando’s friends and colleagues,
which also fail to definitively establish the source of any actual confusion.”59 With
respect to Mr. Orlando’s testimony, Applicant points out that there is no documentary
evidence to support his allegations of numerous instances of actual confusion.
We disagree with Applicant’s characterization and estimation of the importance
of Opposer’s evidence of actual confusion. Rather, we find the evidence of actual
confusion to be highly persuasive with respect to our likelihood of confusion analysis.
It is especially concerning that individuals with a higher level of awareness of the
relevant players in the industry, including CrossFit employees and owners of other
gyms, could mistakenly believe that there was relationship between Applicant and

56 Null Dep. 25:18-23.
57 Orlando Dep. 124:7-125:25. We note, however, that this type of testimony has very little
probative value inasmuch as Mr. Orlando provided little specificity, e.g., dates or names of
involved persons, for these alleged instances of actual confusion and Opposer did not submit
any corroborating physical evidence.
58 62 TTABVUE 24.
59 Id. at 27.
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Opposer based on the stylized H marks. These are members with a business interest
and knowledge of the athletic apparel market. The fact that these individuals were
actually confused certainly raises the stakes that less-informed consumers are likely
to be confused. Applicant’s latter point with respect Mr. Orlando’s testimony is well-
taken and we note the shortcomings with respect to that testimony (see footnote 42,
supra). Nevertheless, as discussed above, Mr. Orlando’s testimony is not the only
evidence indicating that there have been instances of actual confusion based on the
parties’ concurrent use of the H design marks on the same goods. Furthermore, we
do not consider the evidence to be “insufficient” or de minimis. Any evidence of actual
confusion is relevant and should be carefully considered. Again, given that the
parties’ marks have coexisted for only three to four years, we find the amount of
confusion as to a connection between the parties based on their use of the H design
marks is substantial.
In sum, the evidence of actual confusion before us has clear probative value and
helps show that confusion amongst consumers is likely, and the du Pont factor is
weighed accordingly.
Balancing of the Factors - Conclusion
Upon consideration of all relevant du Pont factors and as discussed above, we find
that Applicant’s use of its mark for “athletic apparel, namely, shirts, pants,
shorts, jackets, footwear, hats and caps is likely to cause confusion” with Opposer’s
previously-used mark on some of the same goods, namely, jackets, shorts and
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shirts. We make this decision keeping in mind that there are obvious visual
differences between the marks, but also bearing in mind that the goods are found in
the very same trade channels, are offered to the same consumers, and it has been
shown that confusion as to source has already ocurred.
Decision: The opposition is sustained.