Roberto Di Zio, Nicola Di Zio, and Giampaolo Di Zio.

Trademark Trial and Appeal Board

Aug 19, 2019

86943646 (T.T.A.B. Aug. 19, 2019)

This Opinion is not a
Precedent of the TTAB
Mailed: August 19, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Roberto Di Zio, Nicola Di Zio and Giampaolo Di Zio.
________

Serial No. 86943646
_______

Phillip Thomas Horton of Horton Law PLLC
for Roberto Di Zio, Nicola Di Zio and Giampaolo Di Zio.

Kathy de Jonge, Trademark Examining Attorney, Law Office 107,
(J. Leslie Bishop, Managing Attorney).
_______

Before Cataldo, Taylor and Greenbaum,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
Roberto Di Zio, Nicola Di Zio and Giampaolo Di Zio (collectively, “Applicant”) filed
an application to register on the Principal Register the mark LLORONA (in standard
characters) identifying “beer” in International Class 32.1

1 Application Serial No. 86943646 was filed on March 17, 2016 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), asserting February 7, 2012 as a date of first use of the
mark in commerce. Applicant submitted the following translation statement: The English
translation of “LLORONA” in the mark is “WEEPING WOMAN”, “HIRED MOURNER”, or
“GHOST OF A WAILING WOMAN WHO WANDERS THE STREETS”.
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the cited registered mark TEARS OF LLORONA (in
standard characters) identifying, “liquor” in International Class 33.2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Evidentiary Matter
Applicant submitted four pages of evidence as exhibits to its appeal brief.3 To the
extent Applicant submitted with its appeal brief evidence that is duplicative of
evidence previously submitted during prosecution, we need not and do not give this
redundant evidence any consideration. Further, any of the evidence submitted with
Applicant’s appeal brief that was not previously submitted during prosecution is
untimely and will not be considered.4 See Trademark Rule 2.142(d), 37 C.F.R.
§ 2.142(d); TBMP § 1203.02(e) and § 1207.01 (June 2019) and authorities cited
therein.

2 Registration No. 4296222 issued on the Principal Register on February 26, 2013. Section 8
and 15 affidavits accepted and acknowledged. The registration includes the following
translation statement: The English translation of “Llorona in the mark is weeping woman.
3 7 TTABVUE 14-17.
4 The proper procedure for an applicant or examining attorney to introduce evidence after an
appeal has been filed is to submit a written request with the Board to suspend the appeal
and remand the application for further examination. See Trademark Rule 2.142(d), 37 C.F.R.
§ 2.142(d). See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) § 1207.02 (June 2019) and authorities cited therein.
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II. Likelihood of Confusion

We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. __, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Guild
Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019).
We have considered each DuPont factor that is relevant, and have treated other
factors as neutral. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d
1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant to every case,
and only factors of significance to the particular mark need be considered.”));
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.”).
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). Two key considerations are the
similarities between the marks and the relatedness of the goods. See Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (the
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“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.”); In re
FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018).
A. The Goods, Channels of Trade, and Classes of Customers

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration,” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62
USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). “This factor considers whether ‘the
consuming public may perceive [the respective goods or services of the parties] as
related enough to cause confusion about the source or origin of the goods and
services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir.
2014) (quoting Hewlett-Packard, 62 USPQ2d at 1004).
In support of the refusal of registration, the Examining Attorney introduced with
her August 15, 2017 Office Action,5 printouts from the third-party websites
squareonebrewery.com and maplewoodbrew.com, offering and advertising, under the
same mark, various beer and liquors. This evidence demonstrates that at least these
third parties offer both Applicant’s goods and the goods identified in the cited
registration under the same house mark.

5 At .pdf 25-27.
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The Examining Attorney also introduced into the record with her January 23,
2017 Office Action,6 copies of eight use-based, third-party registrations for marks
identifying, inter alia, beer and various types of liquor. The following examples are
illustrative:
Reg. No. 4951746 for the mark HOBBS TAVERN AND BREWING CO and
design;

Reg. No. 4978543 for the mark BREWVO (in standard characters); and

Reg. No. 4731969 for the mark BENT DISTILLERY (in standard characters).

As a general proposition, although use-based, third-party registrations alone are not
evidence that the marks shown therein are in use or that the public is familiar with
them, they nonetheless may have some probative value to the extent they may serve
to suggest that the goods are of a kind that emanate from a single source. See In re
Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard, 6
USPQ2d 1467, 1470 n.6 (TTAB 1988). In this case, the totality of the website and
third-party registration evidence demonstrates that consumers would readily expect
that beer and liquor could emanate from the same sources.
For this reason, we are not persuaded by Applicant’s arguments and evidence
submitted with its February 15, 2018 Request for Reconsideration7 regarding the
distinctions between beer, wine and distilled spirits. Clearly, there are distinctions

6 At .pdf 18-29.
7 At .pdf 11-22.
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between these alcoholic beverages. However, to support a finding of likelihood of
confusion, it is not necessary that the goods be identical or even competitive. It is
sufficient that the goods are related in some manner, or that the circumstances
surrounding their marketing are such that they would be encountered by the same
persons in situations that would give rise, because 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. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB
2009). The evidence of record clearly establishes that beer and liquor may emanate
from common sources. In addition, in its brief “Applicant must concede the similarity
of the goods or services is recited in the Applicant’s applied-for trademark as well as
the registered trademark.”8
With regard to the third DuPont factor, the similarity of the trade channels in
which the goods are encountered, the Examining Attorney introduced website
evidence with her August 15, 2017 Office Action9 demonstrating that five third
parties, including missionliquor.com; mikesliquorsmd.com; yankeespirits.com;
squareonebrewery.com; and mapelwoodbrew.com, provide both beer and liquor at
their physical locations, i.e., through the same trade channels to the same purchasers.
Further, we must base our likelihood of confusion determination on the basis of the
goods as they are identified in the application and registration at issue. In re Elbaum,
211 USPQ 639, 640 (TTAB 1981); In re William Hodges & Co., Inc., 190 USPQ 47, 48

8 7 TTABVUE 11.
9 At .pdf 9-27.
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(TTAB 1976). See also Octocom, 16 USPQ2d at 1787 (“The authority is legion that
the question of registrability of an applicant’s mark must be decided on the basis of
the identification of goods set forth in the application regardless of what the record
may reveal as to the particular nature of an applicant’s goods, the particular channels
of trade or the class of purchasers to which the sales of goods are directed”). In other
words, we may not limit or restrict Applicant’s broadly identified beer or the similarly
identified liquor listed in the cited registration by price point or quality, but rather
must consider both beer and liquor to include modestly priced beverages as well as
more expensive, high-end varieties.
Evidence of record demonstrates that both Applicant’s goods and Registrant’s
goods may be encountered by the same classes of consumers under the same marks
in at least one common trade channel, i.e., the physical locations and corresponding
websites of beer and liquor producers and sellers. In addition, the identifications of
goods in the cited registration and involved application do not recite any limitations
as to the channels of trade in which the goods are or will be offered. In the absence of
trade channel limitations on the goods offered under the applied-for and registered
marks, we must presume that these goods are offered in all customary trade
channels. See Citigroup v. Capital City Bank Grp., 98 USPQ2d at 1261; In re Jump
Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006).
We find that the DuPont factors of the relatedness of the goods, channels of trade
and consumers weigh in favor of likelihood of confusion.

Serial No. 86943646
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B. Strength of the Cited Mark / Number and Nature of Similar Marks
We next evaluate the strength of the registered mark and the scope of protection
to which it is entitled. The fifth DuPont factor is the “fame” or strength of the prior
mark, and the sixth factor is the number and nature of similar marks in use for
similar goods or services. DuPont, 177 USPQ at 567. In determining strength of a
mark, we consider both inherent strength, based on the nature of the mark itself, and
commercial strength or recognition. In re Chippendales USA Inc., 622 F.3d 1346, 96
USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its
conceptual strength (distinctiveness) and its marketplace strength (secondary
meaning).”).
Turning first to inherent strength, the Examining Attorney introduced the
following definition of “Llorona:’ “hired mourner, spectre of a wailing woman who
wanders the streets, ghost of a woman.”10 In addition, the Examining Attorney
introduced screenshots from educational and commercial websites corroborating the
definition of “Llorona” or “La Llorona” as a ghostly woman who wanders along canals
and rivers searching and crying for her lost children.11 The Examining Attorney also
introduced the following entry for La Llorona from an open-source online reference
work:12
La Llorona (“The Weeping Woman”) is a legendary ghost prominent in
the folklore of Mexico. According to tradition, La Llorona is the ghost of

10 March 12, 2018 Office Action at .pdf 6-34. (collinsdictionary.com/dictionary/Spanish-
English/llorona; Spanishdict.com/translate/llorona)
11 Id.
12 June 27, 2016 first Office Action at 4-7. (Wikipedia.org/wiki/La_Llorona)
Serial No. 86943646
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a woman who lost her children and cries while looking for them by the
river, often causing misfortune to those who hear her.

None of the evidence in the record suggests that the term “TEARS OF LLORONA” or
“Llorona” possess any meaning in relation to liquor, aside from evoking the fanciful
image of Registrant’s distilled spirits containing the tears of a ghostly, wailing
woman.
Thus, we find on this record that TEARS OF LLORONA appears to be arbitrary,
a combination of “known word[s] used in an unexpected or uncommon way.” See
Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 71 USPQ2d 1173
(Fed. Cir. 2004) (defining an arbitrary mark as a “known word used in an unexpected
or uncommon way” and observing that such marks are typically strong); see also Palm
Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005) (arbitrary terms are conceptually strong
trademarks). There is no evidence regarding the mark’s commercial or marketplace
strength.
Applicant submitted copies of 12 third-party registrations consisting of pairs or
trios of marks retrieved from a search of the USPTO’s Trademark Electronic Search
System (TESS).13 Applicant additionally submitted the following table summarizing
these marks, which for ease of reference we reproduce in relevant part below:14

13 February 15, 2018 Request for Reconsideration at .pdf 23-55.
14 Id. At 23-26. Reg. No. 4718650 recites three pages of services in Class 41. The middle two
pages have been omitted for the sake of brevity.
Serial No. 86943646
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Serial No. 86943646
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These registrations have limited probative value because half involve goods and
services quite different from the liquor identified in the cited registration, and
therefore have little, if any, bearing on the weakness of the registered mark. See
Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686
Serial No. 86943646
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(Fed. Cir. 2018) (error to rely on third-party evidence of similar marks for dissimilar
goods, as Board must focus “on goods shown to be similar”); In re i.am.symbolic, llc,
866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017) (disregarding third-party
registrations for goods in other classes where the proffering party “has neither
introduced evidence, nor provided adequate explanation to support a determination
that the existence of I AM marks for goods in other classes, … support a finding that
registrants’ marks are weak with respect to the goods identified in their
registrations”). Cf. In re FabFitFun, Inc., 127 USPQ2d at 1674 n.11 (TTAB 2018).
Furthermore, none of the marks in the third-party registrations of record include
the term “Llorona” common to Applicant’s mark and the cited registered mark. With
regard to the USPTO’s decision to allow for registration, e.g., TEARS OF
SCOTLAND, JEWELS OF SCOTLAND and CLASSIC MALTS OF SCOTLAND, all
for varieties of whiskey, the prosecution histories of the applications underlying these
third-party registrations are not of record and we are unable to determine the
examining attorneys’ decisions regarding the registrability thereof. In any event, “[i]t
has been said many times that each case must be decided on its own facts.” In re Nett
Designs, 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001); In re Eagle Crest Inc., 96
USPQ2d 1227, 1229 (TTAB 2010) (internal citation omitted). Thus, the fact that the
Office has allowed these registrations for marks largely unrelated to the marks at
issue herein, does not persuade us that the mark in the cited registration is weak.
As noted above, we find that the registered mark is arbitrary as applied to the
identified goods. There is no evidence of third-party use; moreover, there is very
Serial No. 86943646
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limited evidence of third-party registrations of unrelated marks, some for unrelated
products and services. Cf. Juice Generation, Inc. v. GS Enters LLC, 794 F.3d 1334,
115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur Draussen
GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
1129, 1135-36 (Fed. Cir. 2015). We therefore find that the registered mark is entitled
to the broader scope of protection to which arbitrary and conceptually strong marks
are entitled. See Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d
1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (stating that likelihood of confusion
fame varies along a spectrum from very strong to very weak).
C. Conditions of Purchase

Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567. In its brief, Applicant argues that
Traditionally, consumers of these goods are sophisticated and take great
care when buying expensive goods. There are some beers that are
expensive, however, that pales in comparison to a bottle of liquor. In the
battle between beer or liquor, it’s usually quantity vs. quality. That is,
you can get case of beer for around the same price of a cheap liquor, but
the price discrepancy between a case of beer and a high-quality liquor is
greater.15

However, as discussed, both Applicant’s beer and the liquor in the cited
registration must be presumed to include both expensive and inexpensive varieties.
There is nothing in the nature of these alcoholic beverages, without any limitation as
to their type, price point or intended consumers, to suggest their purchasers are

15 7 TTABVUE 12.
Serial No. 86943646
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particularly sophisticated or careful. See In re I-Coat Co., 126 USPQ2d 1730, 1739
(TTAB 2018). In fact, the standard of care is that of the least sophisticated potential
purchaser. Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1163 cited in In re
FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (“Board precedent requires our
decision to be based on the least sophisticated potential purchasers.”). In the absence
of further evidence relating to the degree of care purchasers exercise, the similarity of
the marks and relatedness of the goods outweigh Applicant’s assertion that
purchasers are sophisticated or careful in their purchases. See HRL Assocs., Inc. v.
Weiss Assocs., Inc., 12 USPQ2d 1819, 1823 (TTAB 1989), aff’d, 902 F.2d 1546, 14
USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks outweigh sophisticated
purchasers, careful purchasing decision, and expensive goods).
All in all, we have insufficient bases to find that ordinary consumers would
exercise more than an ordinary degree of care. The fourth DuPont factor is neutral.
D. The Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1160; Palm Bay Imps., Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692.
“‘Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.’ In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014); accord Krim-
Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968)
Serial No. 86943646
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(“It is sufficient if the similarity in either form, spelling or sound alone is likely to
cause confusion.”) (citation omitted).” In re Inn at St. John’s, LLC, 126 USPQ2d 1742,
1746 (TTAB 2018). “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) (internal quotation marks
omitted). See also Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470
(TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016).
Consumers may not necessarily encounter the marks in proximity to one another and
must rely upon their recollections thereof over time. In re Mucky Duck Mustard, 6
USPQ2d at 1468.
The marks are similar in appearance and sound to the extent that they both
include or consist of the term LLORONA. The addition of the wording “TEARS OF”
in the registered mark, while appearing first and contributing to the mark’s
commercial impression, fails to distinguish the marks and, as further explained
below, serves only to emphasize the meaning of LLORONA. Likelihood of confusion
is not necessarily avoided between otherwise confusingly similar marks merely by
adding or deleting other matter. If an important or, as in the case here, a significant
portion of both marks is the same, then the marks may be confusingly similar
notwithstanding some differences. See, e.g., Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (affirming TTAB’s finding that
Serial No. 86943646
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applicant’s mark STONE LION CAPITAL incorporated the entirety of the registered
marks LION CAPITAL and LION, and that the noun LION was the dominant part
of both parties’ marks); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (finding that, even though applicant’s mark
PACKARD TECHNOLOGIES, with “TECHNOLOGIES” disclaimed, does not
incorporate every feature of opposer’s HEWLETT PACKARD marks, a similar overall
commercial impression is created).
As previously discussed, “Llorona” is a ghostly figure of legend, sobbing as she
wanders searching for her lost children. There is no evidence of record that
LLORONA has a significantly different connotation as applied to beer as TEARS OF
LLORONA applied to liquor. Indeed, Applicant’s specimen of use, reproduced in part
as Figure 1 below, suggests that its LLORONA mark is intended to evoke the image
of a ghostly, crying woman.
Figure 1:

Serial No. 86943646
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Applicant’s LLORONA mark connotes a crying, ghostly woman while the registered
mark TEARS OF LLORONA connotes the crying, ghostly woman’s tears. As a result,
the marks are highly similar in connotation or meaning.
While we have taken into account the differences in appearance and sound, based
upon the above analysis, we find on comparison of the marks in their entireties that
LLORONA is more similar to the arbitrary and strong mark TEARS OF LLORONA
than dissimilar in terms of appearance, sound, connotation and commercial
impression. As a result, consumers encountering and LLORONA could mistakenly
believe the latter is a shortened variation on the registered mark used to identify
related goods emanating from a common source. See In re Bay State Brewing Co., 117
USPQ2d 1958, 1961, 1964 (TTAB 2016) (“In general, use of a house mark does not
obviate confusion.”) (quoting In re Abcor Dev. Corp., 588 F.2d 811 , 200 USPQ 215,
219 (CCPA 1978) (Rich, J., concurring) (“the users of language have a universal habit
of shortening full names—from haste or laziness or just economy of words”)).
For these reasons, we find that the marks are highly similar. The first DuPont
factor thus also weighs in favor of finding a likelihood of confusion.
E. Actual Confusion
Under the seventh and eighth DuPont factors, we consider the nature and extent
of any actual confusion, in light of the length of time and conditions under which
there has been contemporaneous use of Applicant’s and Registrant’s subject
marks. DuPont, 177 USPQ at 567. Applicant argues that
The absence of any instances of actual confusion is a meaningful factor
where the record indicates that, for a significant period of time, an
Serial No. 86943646
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applicant's sales and advertising activities have been so appreciable and
continuous that, if confusion were likely to happen, any actual incidents
thereof would be expected to have occurred and would have come to the
attention of one or all affected trademark owners.16

However, the standard is likelihood of confusion, not actual confusion. See In re
Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1053 (Fed. Cir. 2018).
“[U]ncorroborated statements of no known instances of actual confusion are of little
evidentiary value.” In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1163
(Fed. Cir. 2019) (quoting Majestic Distilling, 65 USPQ2d at 1205). This especially
holds true in an ex parte context, where there is no chance for a registrant to show
what opportunity for confusion there has been based on registrant’s use and
advertising of its mark. See In re Opus One Inc., 60 USPQ2d 1812, 1817 (TTAB 2001);
In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1204-05 (TTAB 2009). Moreover,
Applicant alleges use since 2012, and has provided no evidence of actual use, so we
cannot gauge the opportunity for actual confusion to have occurred in the US
marketplace. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1847 (Fed. Cir. 2000); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC,
122 USPQ2d 1030, 1039-40 (TTAB 2016).
Applicant’s assertion of lack of actual confusion thus carries no probative value.
The seventh and eighth DuPont factors are neutral.

16 7 TTABVUE 12.
Serial No. 86943646
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F. Conclusion
When we consider the record and the relevant likelihood of confusion factors, and
all of Applicant’s arguments relating thereto, including those arguments and
evidence not specifically addressed herein, we conclude that consumers familiar with
Registrant’s goods offered under its mark would be likely to believe, upon
encountering Applicant’s mark, that the goods originated with or are associated with
or sponsored by the same entity.
Decision: The refusal to register Applicant’s proposed mark is affirmed under
Section 2(d) of the Trademark Act.