Sock It To Me, Inc.v.Lisa C. Hordijczuk DBA Sock Dirty To Me

Trademark Trial and Appeal Board

Jul 20, 2020

91236423 (T.T.A.B. Jul. 20, 2020)

Mailed: July 20, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
Trademark Trial and Appeal Board
———————
Sock It To Me, Inc.
v.
Lisa C. Hordijczuk DBA Sock Dirty To Me
———————
Opposition No. 91236423
———————
Steven E. Klein, Sheila Fox Morrison, Davis Wright Tremaine LLP, for Sock It To
Me, Inc.
Richard G. Sanders, Aaron & Sanders, PLLC, for Lisa C. Hordijczuk.
———————
Before Mermelstein, Lykos, and English, Administrative Trademark
Judges.
Opinion by Mermelstein, Administrative Trademark Judge:
Lisa C. Hordijczuk applied to register the standard-character mark SOCK
DIRTY TO ME on the Principal Register for “socks.”1 Registration is opposed by Sock
It To Me, Inc., which alleges that Applicant’s mark is likely to cause confusion, or

1 Application Serial No. 87294375, filed January 9, 2017, based on use in commerce.
This Opinion is Not a
Precedent of the TTAB
Opposition No. 91236423
2
mistake, or to deceive, in view of Opposer’s prior use and registration of the standard-
character mark SOCK IT TO ME for “socks and stockings.”2 Trademark Act Section
2(d), 15 U.S.C. § 1052(d).3
We dismiss the opposition.
I. The Record
The record comprises the pleadings and pursuant to Trademark Rule 2.122(b), the
file of the opposed application. In addition, the parties submitted the following
evidence:
A. Opposer’s Evidence
 Opposer’s pleaded registration, attached as an exhibit to the notice of
opposition. 1 TTABVUE 10. See Trademark Rule 2.122(d)(1).
 Corrected4 Testimonial declaration of Michelle Walker, Opposer’s CEO. 36
TTABVUE (confidential); 37 TTABVUE (redacted).
 Opposer’s first notice of reliance on dictionary definitions. 19 TTABVUE.
 Opposer’s second notice of reliance on Applicant’s responses to requests for
admission and interrogatories. 20 TTABVUE.

2 Registration No. 4173688, issued July 17, 2012. Affidavits under §§ 8 & 15 accepted and
acknowledged. Opposer disclaimed the exclusive right to use SOCK apart from the mark as
shown.
3 Opposer also asserted the grounds of lack of ownership and nonuse, 1 TTABVUE 6, 7, but
admits that Applicant’s proofs at trial are sufficient for Applicant to prevail on these claims.
Opp. Br. 39 TTABVUE 18 n.1. In light of Opposer’s concession, these grounds for opposition
are dismissed with prejudice.
4 After trial and briefing, Opposer moved for leave to file a substitute testimonial declaration
of Ms. Walker and substitute opening and reply briefs. 36–39 TTABVUE. Opposer states that
the substitute filings were made to correct an inaccuracy in Ms. Walker’s testimony, namely,
that the testimony included “amounts for sales and marketing outside the United States,”
and that those amounts were referenced in Opposer’s originally filed briefs. Applicant did not
oppose the motion, which we grant as conceded. Trademark Rule 2.127(a). Further references
to confidential information in Ms. Walker’s testimony or Opposer’s briefs are to the substitute
versions attached to Opposer’s motions.
Opposition No. 91236423
3
 Reply declaration of Michelle Walker. 25 TTABVUE.
 Opposer’s third (reply) notice of reliance. 26 TTABVUE.
o Applicant’s interrogatories and Opposer’s responses; and
o Dockets and filings from other TTAB proceedings.
B. Applicant’s Evidence
 Testimonial declaration of Lisa C. Hordijczuk. 21-22 TTABVUE; 23
TTABVUE (confidential).
 Applicant’s notice of reliance. 24 TTABVUE.
o Opposer’s responses to interrogatories;
o Dictionary definitions; and
o Webpages.
II. Evidentiary Objections
Each party filed objections to evidence submitted by the other.
Opposer objects “on grounds of relevance and over breadth” to Ms. Hordijczuk’s
testimony, 21 TTABVUE 2–6, ¶¶ 3–17 and exhibits 1–6, “to the extent Applicant
purports to introduce the testimony and evidence set forth therein for any purpose
other than to show Applicant’s first use of the applied for . . . mark and ownership of
the opposed Application.” Opp. Br. Appx. A, 29 TTABVUE 28. The objection is
overruled. Opposer is correct that this proceeding must be conducted on the basis of
the application and registration at issue, and that Applicant’s mark, goods, channels
of trade, classes of purchasers, and the conditions of purchase may not be limited by
extrinsic evidence. See Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937,
16 USPQ2d 1783, 1788 (Fed. Cir. 1990). But while Applicant’s testimony and
evidence about her own business under the mark cannot limit our consideration of
Opposition No. 91236423
4
the applicable goods, channels of trade, classes of purchasers, and conditions of sale,
it is relevant to the extent that it is one example of practice in the trade. We will
consider it to that extent.
Opposer also conditionally objects to Applicant’s submission of certain of
Opposer’s discovery responses on the ground that they are incomplete without
consideration of some of Opposer’s other responses. Opp. Br. Appx. A, 29 TTABVUE
29. Opposer submitted these other responses with its third (reply) notice of reliance,
to which Applicant has not objected. Because Opposer’s other interrogatory responses
will be considered, see Trademark Rule 2.120(k)(5), Opposer’s objection is moot.
Finally, Applicant objects on the grounds of hearsay and lack of authentication to
an exhibit to Opposer’s first notice of reliance, see Opp. Not. of Reliance, 19 TTABVUE
55. The exhibit is an Instagram page featuring a picture of socks with SOCK IT TO
ME labels. Next to the photograph is a comment in which the poster uses the hashtag
“#sockdirtytome.” Opposer contends that the post is an instance of actual confusion.
We see no problem with the authentication of the Instagram page; the page bears
the URL and date, and Applicant does not provide any evidence or argument
suggesting that it is not what it purports to be. The evidence is thus authenticated as
internet material which may be admitted “in the same manner as a printed
publication.” Trademark Rule 2.122(e)(2). But Opposer relies on the Instagram page
as evidence of actual confusion.5 Opp. Br., 29 TTABVUE 25. It is far from clear that

5 The notice of reliance indicates that the “documents are relevant to the issue of likelihood
of confusion, including the similarity of the parties’ respective marks in terms of appearance,
sound, meaning and commercial impression.” 19 TTABVUE 4. Proof of actual confusion was
not one of the reasons stated for the relevance of the document in the notice of reliance, but
Opposition No. 91236423
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the poster was actually confused as to the source of the pictured goods, but even if he
or she was, the Instagram post is “only hearsay and entitled to little weight. It is
offered to prove the state of mind of a third party (concerning confusion between the
two marks) or his statements. Actual confusion is entitled to great weight but only if
properly proven. Such is not the case here.” Ga.-Pac. Corp. v. Great Plains Bag Co.,
614 F.2d 757, 204 USPQ 697, 701 (CCPA 1980) (citation omitted).6 Applicant’s
objection is sustained to the extent that we give this single, ambiguous incident “little
weight” in determining likelihood of confusion. See id.; cf. Syndicat Des Proprietaires
Viticulteurs de Chateauneuf-Du-Pape v. Pasquier des Vignes, 107 USPQ2d 1930, 1942
(TTAB 2013) (“[T]his single instance of actual confusion is insufficient to show that
confusion is likely. We consider this du Pont factor to be neutral.”).
III. Standing
To establish its standing, Opposer must show a real interest in the outcome of the
proceeding and a reasonable basis for its belief of damage resulting from the
registration sought by Applicant. See Trademark Act Section 13, 15 U.S.C. § 1063;
Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058,
1062 (Fed. Cir. 2014); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir.

Applicant did not raise that issue, forfeiting any objection on that ground.
6 We are aware of opinions finding similar evidence to be either not hearsay because it is not
offered for the truth of the matter asserted, see FED. R. EVID. 801(c)(2), or to be admissible as
an exception to the hearsay rule because it is evidence of the declarant’s state of mind, see
FED. R. EVID. 803(3). See J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 32:15 (5th ed. June 2020 update) (majority of courts admit evidence of third-
party confusion notwithstanding hearsay rule). Nonetheless, the CCPA’s decision in Georgia–
Pacific remains controlling on this issue. See S. Corp. v. United States, 690 F.2d 1368, 1369
(Fed. Cir. 1982) (decisions of the Court of Customs and Patent Appeals adopted as controlling
precedent in the Federal Circuit).
Opposition No. 91236423
6
1999). Opposer’s submission of its pleaded registration adequately establishes its
interest in this proceeding and a reasonable basis for its belief that damage would
result from registration of Applicant’s mark. Anheuser-Busch, LLC v. Innvopak Sys.
Pty Ltd., 115 USPQ2d 1816, 1820 (TTAB 2015).
IV. Likelihood of Confusion
A. Priority
Because Opposer established ownership and validity of its pleaded registration,
priority is not at issue with respect to the registered mark and the goods identified in
the registration.7 King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182
USPQ 108, 110 (CCPA 1974).
B. Applicable Law
Our determination under Trademark Act § 2(d) is based on an analysis of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. See 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, 1203–04 (Fed. Cir. 2003). We must consider each DuPont factor for which there

7 Opposer notes that its registration issued prior to Applicant’s filing date and that “Applicant
makes no claim of actual use . . . that predates either the filing or registration dates
established by Opposer’s [r]egistration.” Opp. Br., 29 TTABVUE 16. These arguments miss
the point: Because Opposer introduced its registration in evidence, priority of either filing or
use is irrelevant. Absent a counterclaim to cancel it, once an opposer introduces its
registration, priority ceases to be an issue, even if the applicant was in fact the first to use
its mark or file its application. 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”). In other words,
the introduction of opposer’s pleaded registration did not prove priority; it eliminated the
need to prove priority. See King Candy, 182 USPQ at 110.
Opposition No. 91236423
7
is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the relatedness of the
goods. 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.”). These and other factors are discussed below.
Opposer bears the burden of proving its claim of likelihood of confusion by a
preponderance of the evidence. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1848 (Fed. Cir. 2000).
C. Analysis
1. Similarity of Goods; Channels of Trade; Purchasers;
Conditions of Sale
We evaluate the relatedness of Applicant’s and Opposer’s goods and services based
on the identification of goods or services set out in the involved application, compared
with the identification of goods or services in Opposer’s registration. See In re Detroit
Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161
(Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62
USPQ2d 1001, 1004 (Fed. Cir. 2002); Octocom Sys., Inc., 16 USPQ2d at 1787; In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Applicant’s goods are identified as “socks,” while Opposer’s goods are identified as
“socks and stockings.” The goods are thus identical at least in part and otherwise
Opposition No. 91236423
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closely related.8 To the extent the goods are identical, we must consider them to move
in the same channels of trade to the same purchasers. Cai v. Diamond Hong, Inc.,
901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018), cert. denied, 139 S. Ct. 1550
(2019) (“the TTAB properly followed our case law and presumed that the identical
goods move in the same channels of trade and are available to the same classes of
customers for such goods” (cleaned up)); see In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012) (even in the absence of evidence regarding
channels of trade and classes of consumers, the Board may rely on this legal
presumption in determining likelihood of confusion).
Similarly, because the parties’ goods include “socks” without restriction, we must
consider them to include socks of all types, including those sold at relatively low prices
and purchased without the kind of careful inspection and deliberation that might
tend to mitigate any confusion which might otherwise be likely. See Am. Lava Corp.
v. Multronics, Inc., 461 F.2d 836, 174 USPQ 107, 108 (CCPA 1972); see also Recot Inc.
v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000) (“When
products are relatively low-priced and subject to impulse buying, the risk of likelihood
of confusion is increased because purchasers of such products are held to a lesser
standard of purchasing care.”). Opposer introduced evidence that socks can be

8 We take judicial notice of the definition of “stocking” as including “a usually knit close-
fitting covering for the foot and leg” (sense 1a) and “sock” (sense 1b). MERRIAM-WEBSTER
DICTIONARY, stocking (https://www.merriam-webster.com/dictionary/stockings (visited Jul.
17, 2020)). The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame
du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372,
217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or
have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). The
term “stocking” thus refers to both socks and foot-and-leg coverings related to socks.
Opposition No. 91236423
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relatively inexpensive items, selling for as little as $1.50 per pair. Walker Dec., 18
TTABVUE 5, 31–52.
Further, we must assume both of the parties’ socks and stockings to be sold to all
usual purchasers of such goods. In re Elbaum, 211 USPQ at 640. Because socks and
stockings are basic items of clothing, the class of potential purchasers is particularly
large, including virtually all adults. While some purchasers may exercise particular
care and sophistication in purchases of socks or stockings, many others undoubtedly
do not, especially when purchasing goods at the lower end of the price range. When
the class of purchasers is mixed, we focus on the least-sophisticated customers among
them. Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1163 (Fed. Cir. 2014). While “[p]urchaser sophistication may tend to
minimize likelihood of confusion . . . , impulse purchases of inexpensive items may
tend to have the opposite effect.” Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1695 (Fed. Cir. 2005). Because
socks and stockings can be purchased at low prices by a large class of ordinary
consumers, we find that they would be purchased with no more than an ordinary
degree of care.
These factors favor a finding of likely confusion.
2. Strength of Prior Mark
Opposer contends that its mark is conceptually and commercially strong. Before
considering Opposer’s evidence, we address misconceptions by both parties.
Applicant makes several statements implying that the relevant time frame for
considering the strength of Opposer’s mark is prior to Applicant’s first use, e.g., 32
Opposition No. 91236423
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TTABVUE 8, or its application date, id. at 14–15. That is incorrect. “For purposes of
likelihood of confusion, the Board generally accepts and considers evidence related to
likelihood of confusion for the period to and including the time of trial, and this
includes evidence of the fame of a plaintiff’s mark.”9 Gen. Mills Inc. v. Fage Dairy
Processing Indus. SA, 100 USPQ2d 1584, 1595 n.13 (TTAB 2011), judgment set aside
on other grounds, Opp. No. 91118482, 591 TTABVUE (TTAB Jan. 22, 2014); see also
In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010)
(“the proper time for measuring inherent distinctiveness is at the time of
registration”); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 n.18
(TTAB 2014). We have thus considered all record evidence of the strength or renown
of Opposer’s mark, including any evidence postdating Applicant’s first use or
application date.
For its part, Opposer notes throughout its brief that its registration is
“incontestable,” implying that its mark is strong or that its registration otherwise
should carry greater weight in this proceeding. Nonetheless, the incontestable status
of Opposer’s registration is of no consequence to the strength of Opposer’s mark or
the issue of likelihood of confusion in general. Consistent with the majority of circuits
to have considered the question, our precedent makes clear that the benefits of
incontestability do not include any presumption that the mark in an incontestable

9 This differs from a claim of dilution, in which the plaintiff must establish as an element of
its case that its mark acquired fame prior to the defendant’s first use or application date.
Trademark Act § 43(c)(1), 15 U.S.C. § 1125(c)(1). Dilution was not pleaded or tried as a
ground for opposition in this case.
Opposition No. 91236423
11
registration is necessarily strong by virtue of that status. Safer Inc. v. OMS Invs. Inc.,
94 USPQ2d 1031, 1036 (TTAB 2010) (“[T]hat opposer’s federally-registered
trademark has achieved incontestable status . . . does not dictate that the mark is
‘strong’ for purposes of determining likelihood of confusion.”); J. Thomas McCarthy,
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION §§ 11:84, 32:155 (5th ed. Mar.
2020 update).
The strength of a mark can be evaluated along two axes: inherent strength and
commercial strength. See Chippendales USA, 96 USPQ2d at 1686. A mark’s inherent
strength is a measure of its distinctiveness, i.e., whether it is fanciful, arbitrary,
suggestive, descriptive, or generic.10 Id. at 1684 (citing Abercrombie & Fitch Co. v.
Hunting World, Inc., 537 F.2d 4, 189 USPQ 759 (2d Cir. 1976)). By contrast, a mark’s
commercial strength measures the degree to which the mark has achieved recognition
among the relevant public. “[A] mark with extensive public recognition and renown
deserves and receives more legal protection than an obscure or weak mark .” Kenner
Parker Toys Inc. v. Rose Art Indus. Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed.
Cir. 1992). Evidence of commercial strength or fame includes long use, strong sales
and advertising, unsolicited media recognition, and surveys showing strong
association of the mark with the source of the goods or services. See du Pont, 177
USPQ at 567 (fifth factor). On the other hand, evidence that the public is confronted
with the significant use by others of similar marks for similar goods tends to indicate

10 Because Opposer’s mark is registered on the Principal Register and Applicant has not
challenged its validity, it is presumed to be at least “suggestive.” See Trademark Act § 7(b)
(certificate of registration is prima facie evidence of the validity of the registration).
Opposition No. 91236423
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a lack of commercial strength. See id. (sixth factor). The commercial strength or fame
of a mark is not a binary factor in the context of a likelihood of confusion analysis.
Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122
USPQ2d 1733, 1734 (Fed. Cir. 2017). Rather, likelihood of confusion fame “varies
along a spectrum from very strong to very weak.” See Palm Bay, 73 USPQ2d at 1694
(quoting In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059 (Fed. Cir. 2003)).
“Arbitrary word marks are words in common linguistic use but which, when used
with the goods or services in issue, neither suggest nor describe any ingredient,
quality or characteristic of those goods or services.” McCarthy § 11:11. For example,
CAMEL is an arbitrary mark for cigarettes. United States Patent & Trademark Office
v. Booking.com B.V., 591 U.S. —, 2020 USPQ2d 10729, *3 (2020) (quoting Wal-Mart
Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 210–11 (2000)). By contrast, a
suggestive mark “suggests, but does not directly and immediately describe, some
aspect of the goods or services.” McCarthy § 11:62. An example of a suggestive mark
is TIDE for detergent. Booking.com, 2020 USPQ2d at *3.
Opposer argues that its mark is inherently strong and entitled to a broad scope of
protection because it is arbitrary. Applicant disagrees, contending that Opposer’s
mark is suggestive:
SOCK IT TO ME is a double entendre, playing on the
double meaning of “sock”: an article of clothing worn on the
feet and to deliver a blow. In terms of conceptual strength,
this double entendre is a double-edged sword. On the one
hand, it enables SOCK IT TO ME to be treated as an
inherently distinctive mark, despite the presence of the
generic term for the recited goods in a prominent location.
It is undoubtedly a known phrase used in an unexpected or
Opposition No. 91236423
13
uncommon way. On the other hand, the generic term does
not entirely go away; it persists.
App. Br. 32 TTABVUE 12–13 (cleaned up).
There can be no doubt that the word sock is generic for Opposer’s identified
“socks.” While Opposer’s mark, SOCK IT TO ME, is plainly not generic or descriptive
as a whole, the generic import of its first word11 lends the mark a suggestive quality
because it names the identified goods. Notwithstanding the generic meaning of
“sock,” Opposer argues that
“sock” is also defined as “[t]o hit or strike forcefully; punch”
and “[t]o deliver a blow” and has a recognized idiomatic
meaning when included as part of the phrase “sock it to
(someone)” that carries the meaning “[t]o deliver a forceful
comment, reprimand or physical blow to someone else” or
“to deliver new or information to someone that will have a
very large impact or effect.” Thus, viewed as a whole and
in the context of its recognizable idiomatic meaning, SOCK
IT TO ME is [sic] fanciful and arbitrary designation for
socks.
Opp. Br., 29 TTABVUE 20 (citations omitted).
We recognize, of course, that the term SOCK appears in Opposer’s mark as part
of an idiomatic phrase which does not, in the abstract, refer to coverings for feet. But
trademarks are not considered in the abstract; they are considered as they are used
on or in connection with the goods or services to which they apply. Thus, when
Opposer’s mark is applied to socks the otherwise arbitrary phrase SOCK IT TO ME
takes on an additional meaning — the suggestion that Opposer’s goods are socks.

11 Opposer’s disclaimer of SOCK in its registration is a concession that the term was at least
descriptive of its goods at the time of registration. Quaker State Oil Refining Corp. v. Quaker
Oil Corp., 453 F.2d 1296, 172 USPQ 361, 363 (CCPA 1972).
Opposition No. 91236423
14
While Opposer’s mark as a whole is clearly not descriptive or generic, consumers
would clearly understand its first term to describe — indeed name — the goods to
which it is applied. We conclude that Opposer’s mark is suggestive of socks.
With regard to the commercial strength of Opposer’s mark, the record shows that
Opposer has used its mark “for nearly 15 years,” and has sold “more than 12 million
pairs of” SOCK IT TO ME-branded socks in the United States. Opp. Br., 29
TTABVUE 20; Walker Dec., 18 TTABVUE 3. Opposer provided sales and advertising
figures. (Opposer’s sales and advertising figures for this period were submitted under
seal, Opp. Br., 38 TTABVUE 25 (confidential); Walker Dec., 36 TTABVUE 7–9
(confidential), so we discuss them in general terms.) Opposer also notes its presence
on its website and social media, its attendance at trade shows, and media attention
in “numerous well-known publications and review websites.” Walker Dec., 18
TTABVUE 4–5.
Applicant criticizes Opposer’s evidence of commercial strength. As Applicant
notes, App. Br., 31 TTABVUE 14, Opposer provided no evidence by which to place its
advertising and sales figures in context. See Bose Corp. v. QSC Audio Prods., 293 F.3d
1367, 63 USPQ2d 1303, 1309 (Fed. Cir. 2002) (“[R]aw numbers alone in today’s world
may be misleading.… Consequently, some context in which to place raw statistics is
reasonable.”). Similarly, as Applicant points out, Opposer touts its website and social
media accounts, but does not mention its number of visitors or followers. App. Br., 31
TTABVUE 16. Likewise, Opposer relies on its attendance at trade shows, but does
not indicate the attendance at such shows or how frequently Opposer participates.
Opposition No. 91236423
15
Id. Finally, Applicant argues that Opposer’s “representative sample” of “well-known
publications and review websites” Walker Dec. ¶ 13, Exh. C, 18 TTABVUE 5, which
have featured Opposer’s products is “underwhelming.” App. Br., 31 TTABVUE 16.
Applicant argues that “[s]ince Opposer fails to contextualize its bare evidence of
fame, its mark is weak.” App. Br., 31 TTABVUE 14. We disagree. Even a complete
absence of evidence of commercial strength is not itself evidence of weakness. Cf.
Majestic, 65 USPQ2d at 1205 (“Although we have previously held that the fame of a
registered mark is relevant to likelihood of confusion, we decline to establish the
converse rule that likelihood of confusion is precluded by a registered mark’s not
being famous.” (citation omitted)). Thus even if Opposer submitted no evidence of
commercial strength, we would find the fifth du Pont factor (“[t]he fame of the prior
mark”) neutral, rather than weighing in Applicant’s favor.12
That said, Applicant raises some valid points about Opposer’s evidence of
commercial strength or fame. For instance, Opposer’s sales and advertising
expenditures would have clearly been bolstered had Opposer shown, for instance,
that such figures represented a large share of the market for socks. See Bose, 63
USPQ2d at 1309. But Opposer’s failure to do so affects the weight to be given
Opposer’s evidence, not its admissibility. We thus consider Opposer’s sales and
advertising expenditures, and recognize that they are not insubstantial. Likewise,
Opposer’s other evidence of commercial strength, while perhaps not perfect, has been

12 A defendant wishing to show that the plaintiff’s mark is commercially weak may do so by,
for instance, offering evidence that there are numerous similar marks in use on similar goods.
See du Pont, 177 USPQ at 567 (sixth factor). Applicant did not do so in this case.
Opposition No. 91236423
16
considered, taking its probative value into account.
We conclude that, considered as a whole, Opposer’s mark is somewhat suggestive
of the identified goods, weighing against a finding of likelihood of confusion. On the
other hand, it is clear that Opposer has enjoyed a measure of commercial success
under its mark, weighing in Opposer’s favor.
3. Similarity of the Marks
In a likelihood of confusion analysis, we compare the marks for similarities and
dissimilarities in appearance, sound, connotation, and commercial impression. Palm
Bay, 73 USPQ2d at 1692. “Similarity in any one of these elements may be sufficient
to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d
1742, 1746 (TTAB 2018), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019) (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, 1377, 101 USPQ2d 1713, 1721 (Fed. Cir.
2012) (citation and internal quotation marks omitted). While it is appropriate to
accord greater weight to the more distinctive elements in the marks, we must
consider the marks in their entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985) (“[T]here is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on consideration of the marks in their
entireties. Indeed, this type of analysis appears to be unavoidable.”).
Opposition No. 91236423
17
Applicant’s mark is SOCK DIRTY TO ME while Opposer’s mark is SOCK IT TO
ME. Both marks are depicted in standard characters, so they may be used in the
same or similar stylization. See In re Viterra, 101 USPQ2d at 1909; Cunningham v.
Laser Golf Corp., 55 USPQ2d at 1847; Squirtco v. Tomy Corp., 697 F.2d 1038, 216
USPQ 937, 939 (Fed. Cir. 1983) (“[T]he argument concerning a difference in type style
is not viable where one party asserts rights in no particular display.”). Obviously, the
marks are similar in that they both begin with the word SOCK and end in the words
TO ME, and they differ in that the Applicant’s mark includes the second word
DIRTY, while Opposer’s mark includes the second word IT.
Opposer’s first — and presumably strongest — argument is that its “SOCK IT
TO ME mark is nearly identical to and fully incorporated into Applicant’s SOCK
DIRTY TO ME mark” because the word DIRTY in Applicant’s mark includes the
letters I and T in that order (i.e., SOCK DIRTY TO ME). Opp. Br., 29 TTABVUE
21–22. This is an extreme example of impermissible dissection. Under Opposer’s
theory, customers would have to disregard the letters D, R, and Y in the word DIRTY
to perceive the word IT hidden within. But there is no evidence, and we think it highly
implausible, that purchasers seeing Applicant’s SOCK DIRTY TO ME mark would
see the word IT embedded in the word DIRTY. Not only is this highly unlikely, it
violates the fundamental requirement that we consider the marks in their entireties.
Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA
1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal;
rather, it must be considered as a whole in determining likelihood of confusion.”);
Opposition No. 91236423
18
Oakville Hills Cellar, Inc. v. Georgallis Holdings, LLC, 826 F.3d 1376, 119 USPQ2d
1286, 1289 (Fed. Cir. 2016). While it is entirely appropriate for rational reasons to
afford more or less weight to certain parts of a mark, Nat’l Data Corp., 224 USPQ at
751, we may not ignore every other letter in a word to reveal another word that looks
different, sounds different, and has a different meaning. There is no indication that
purchasers of socks are particularly adept at steganography.
Opposer cites Hercules Inc. v. Nat’l Starch & Chem. Corp., 223 USPQ 1244 (TTAB
1984), in support of its theory, but that case is inapposite. In Hercules, the Board
found that despite the inclusion of the additional letters SO in the opposer’s mark,
when considered in their entireties, the marks at issue — NATROL and
NATROSOL — shared similarities in appearance and pronunciation, without
ignoring any part of them. By contrast, the words DIRTY and IT do not look similar,
sound similar, or share similar meanings,13 and Opposer advances no rational reason
to give the letters D, R, and Y in DIRTY less weight, let alone ignore them entirely.
The parties devote much of the rest of their argument to disputing the respective
connotations of the marks and whether they are similar. Applicant urges that “SOCK
DIRTY TO ME [is] a play on ‘talk dirty to me,’ mean[ing] to speak to salaciously or
in a sexual manner.” App. Br., 31 TTABVUE 18. Applicant cites several definitions

13 Opposer also cites our non-precedential decision in In re ERS, Ser. No. 86822574, 2017 WL
6398867, at *2 (TTAB Nov. 27, 2017). App. Br. 39 TTABVUE 27. As Opposer notes, in ERS
we found “ZOCKS and ZOX to be similar in sight and sound despite [the] fact that
Applicant’s mark shares the letters ‘ocks’ with the goods for which it is used (i.e., socks).” Id.
By contrast, in this case, DIRTY and IT are completely dissimilar, and their presence in the
respective marks clearly distinguishes them in appearance, sound, and meaning.
Opposition No. 91236423
19
appearing in Idioms by The Free Dictionary, including The American Heritage
Dictionary of Idioms and the Farlex Dictionary of Idioms. App. Not. of Reliance, 24
TTABVUE 33. Applicant contends that Opposer’s mark, SOCK IT TO ME, “means
‘hit me with your best shot (I can take it).’ ” App. Br., 31 TTABVUE 17.
For its part, Opposer maintains that SOCK IT TO ME “is an invitation or
encouragement by the speaker to a third party to deliver news or a comment that will
have a forceful or significant impact on the speaker (and may also have sexual
overtones).” Opp. Br., 29 TTABVUE 23. But Applicant argues that any sexual
connotation is not the primary import of Opposer’s mark. App. Br., 31 TTABVUE 19–
20. We agree. While it is possible that the phrase SOCK IT TO ME could, in some
circumstances, “have sexual overtones,” that does not appear to be the primary
meaning of the phrase, and nothing in the record indicates such a meaning would be
suggested by Opposer’s use of the phrase to identify socks and stockings. Opposer
argues that “[t]here is nothing that precludes a sexually explicit statement from
taking the form of a forceful comment or an invitation to deliver a physical blow . . . .”
Reply Br., 34 TTABVUE 8. That appears to be correct, but the record falls short of
showing that Opposer’s mark does convey a sexually explicit statement in this case.
In any event, even if Opposer is correct, the fact that the marks share somewhat
salacious “overtones” is not enough in this case to overcome the differences in the
primary meaning of the marks. And while the marks share the identical first word —
SOCK — there is no doubt that that term is generic for socks. Potential purchasers
seeing the marks applied to socks are thus likely to understand SOCK to refer, at
Opposition No. 91236423
20
least in part, to the parties’ goods, rather than their source.
When each mark is considered as a whole, we conclude that each projects a
different meaning, commercial impression, sound, and appearance. Accordingly, we
find them more dissimilar than similar.
V. Balancing the Factors
We have carefully considered all of the evidence and argument of record. While
most of the relevant du Pont factors favor a finding of likelihood of confusion, we find
that they are outweighed in this case by the dissimilarity of the marks. There is “no
reason why, in a particular case, a single DuPont factor may not be dispositive.”
Kellogg Co. v. Pack’em Enters. Inc., 951 F.2d 330, 21 USPQ2d 1142, 1145 (Fed. Cir.
1991). That is especially true of the similarity (or dissimilarity) of the marks, which
is a “predominant inquiry” under the du Pont framework. Hewlett-Packard, 62
USPQ2d at 1003 (citing DuPont, 476 F.2d at 1361)). Odom’s Tenn. Pride Sausage,
Inc. v. FF Acquisition, LLC, 600 F.3d 1343, 93 USPQ2d 2030, 2032 (Fed. Cir. 2010)
(“[E]ven if all other relevant DuPont factors were considered in [Opposer’s] favor, as
the board stated, the dissimilarity of the marks was a sufficient basis to conclude that
no confusion was likely.”). Consequently, we find that Opposer has not borne its
burden to demonstrate likelihood of confusion by a preponderance of the evidence.
Although Opposer notes that doubt is to be resolved in favor of the senior party,
Opp. Br., 29 TTABVUE 26 (citing Hewlett-Packard, 62 USPQ2d at 1003; In re Shell
Oil Co., 992 F.2d 1204, 1209, 26 USPQ2d 1687, 1691 (Fed. Cir. 1993)), the rule does
not apply because we are not in doubt.
Opposition No. 91236423
21
Decision: The opposition is dismissed.