Titmouse, Inc.v.Andrew Dickerson

Trademark Trial and Appeal Board

May 16, 2019

92066512 (T.T.A.B. May. 16, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed:
May 16, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Titmouse, Inc.
v.
Andrew Dickerson
_____

Cancellation No. 92066512
_____

Ben T. Lila of Mandour & Associates APC,
for Titmouse, Inc.

Andrew Dickerson, pro se
_____

Before Cataldo, Ritchie, and English,
Administrative Trademark Judges.

Opinion by English, Administrative Trademark Judge:

Respondent, Andrew Dickerson, is the owner of Registration No. 5242851 for the
mark TEN TON TITMOUSE, in standard characters, registered on the Principal
Register for “coffee mugs” in International Class 21 and “shower curtains” in
International Class 24.1

1 Filed July 13, 2016; Registered July 11, 2017.
Cancellation No. 92066512

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I. The Pleadings
In its petition for cancellation, Petitioner, Titmouse, Inc., alleges prior common
law use of the mark TITMOUSE for “t-shirts” and “animation services”2 and
ownership of registrations for the mark TITMOUSE, in standard characters, for “t-
shirts” in International Class 253 and “animation production services” in
International Class 41,4 and the mark for “animation
production services; entertainment media production services for motion pictures,
television and Internet.”5 As grounds for cancellation, Petitioner pleads likelihood of
confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d).
In his answer, Respondent admits that Petitioner “is the owner and registrant” of
the pleaded registrations.6 Respondent otherwise denies the salient allegations in the
petition for cancellation.

2 The Petition alleges use of the mark “since at least as early as April 1992 in connection with
various goods and services, including without limitation, T-shirts and animation services.” 1
TTABVUE 4, ¶ 1 (emphasis added). The phrase “various goods and services” is vague and not
sufficient to place Respondent on notice that Petitioner is claiming common law rights in the
TITMOUSE mark for goods and services other than “t-shirts” and “animation services.”
3 Registration No. 2727107; filed December 9, 2000; registered June 17, 2003. This
registration is for the mark in typed format, which is the equivalent of a standard character
mark.
4 Registration No. 3492354; filed January 28, 2008; registered August 26, 2008.
5 Registration No. 4624689; filed March 26, 2014; registered October 21, 2014; disclaimer of
“Inc.” The registration includes the following description: “The mark consists of the word
‘TITMOUSE’ in all lowercase letters pictured above the word ‘INC.’ All of the words are
depicted with a shadow effect going from bottom left to top right. The letter ‘O’ appearing in
the word ‘TITMOUSE’ features a drawing of a bird.”
6 1 TTABVUE 5, ¶¶ 4-6; 4 TTABVUE 3, ¶¶ 4-6.
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II. Evidentiary Record and Issues
The record includes the pleadings, and by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of Respondent’s involved registration. The evidence also
includes the testimony declaration of Christian Prynoski, Petitioner’s founder and
Chief Executive Officer, and accompanying exhibits, and the testimony declaration of
Respondent and exhibits thereto.
A. Pleaded Registrations
Petitioner did not introduce the pleaded registrations into evidence. Respondent
has admitted that Petitioner owns the pleaded registrations,7 but he has not made
any admissions regarding their current status. Hewlett-Packard Co. v. Olympus
Corp., 931 F.2d 1551, 18 USPQ2d 1710, 1713 (Fed. Cir. 1991) (admission only of
ownership and not validity insufficient); Philip Morris Inc. v. Reemtsma
Cigarettenfabriken GmbH, 14 USPQ2d 1487, 1488 n.3 (TTAB 1990) (pleaded
registrations not of record where no admission as to ownership and status and
registrations not otherwise introduced). Accordingly, the pleaded registrations are
not of record.
B. Respondent’s Declaration and Accompanying Exhibits
In its reply brief, Petitioner objects to paragraphs 3-7 and Exhibits 1-5 of
Respondent’s Declaration, on the ground that the testimony and exhibits are
“comprised entirely of irrelevant and unrelated trademark application and search

7 4 TTABVUE 3, ¶¶ 4-6.
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results.”8 It was incumbent on Petitioner to raise any evidentiary objections in its
trial brief to allow Respondent an opportunity to respond.9 See Kohler Co. v. Baldwin
Hardware Corp., 82 USPQ2d 1100, 1104 (TTAB 2007). The objection is therefore
untimely and is waived. Id.
The Board is capable of weighing the relevance of testimony and evidence. RxD
Media, LLC v. IP Application Dev. LLC, 125 USPQ2d 1801, 1806 (TTAB 2018); U.S.
Playing Card Co. v. Harbro LLC, 81 USPQ2d 1537, 1540 (TTAB 2006). We have
considered Respondent’s Declaration and attached exhibits and accorded this
evidence the probative weight that it merits.
C. The Prynoski Declaration and Accompanying Exhibits
1. Admissibility of Exhibits 8-15
Mr. Prynoski has attached to his declaration copies of documents that Respondent
produced during discovery and that Mr. Prynoski identifies as (1) “email chains”
between Respondent and third-parties (Exhibits 8 and 10), (2) “an assignment of an
employer identification number from the Internal Revenue Service”10 (Exhibit 9),
(3) a “TEAS filing receipt” for Respondent’s underlying application (Exhibit 11),
(4) tables of a purported “price list for various drinking mugs of Respondent,” “online
campaign names for products or discount codes” and “campaign ID numbers”

8 13 TTABVUE 5.
9 In its main brief, Petitioner asserts that paragraphs 2-7 and Exhibits 1-5 to Respondent’s
Declaration concern “unrelated trademark registrations,” but Petitioner does not object to
this evidence. 11 TTABVUE 7.
10 Exhibit 9 does not qualify as a self-authenticating public record under Fed. R. Evid. 902(4).
Cancellation No. 92066512

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(Exhibits 12-14), and (5) a purported “order form from Spotify” (Exhibit 15).11 Exhibit
11 is automatically of record as part of the file history for Respondent’s registration,
but the remaining exhibits are not automatically of record, are not self-
authenticating, and have not been properly authenticated by Mr. Prynoski because it
has not been shown that he has personal knowledge of the documents. Fed. R. Evid.
602 (“A witness may not testify to matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.”); Fed. R.
Evid. 901(b)(1) (an item may be authenticated by a witness with knowledge that the
item is what it is claimed to be). Respondent, however, has not objected to the
admissibility of the exhibits and has agreed that they are part of the evidentiary
record.12 Accordingly, Exhibits 8-10 and 12-15 to the Prynoski declaration are deemed
to have been stipulated into the record and we have considered them for whatever
probative value they may have.13
2. Confidentiality
Petitioner has designated confidential all of the exhibits to the Prynoski
Declaration, but Exhibit 4 (Respondent’s interrogatory responses) and Exhibit 5
(Respondent’s responses to document requests) consist primarily of non-confidential

11 Prynoski Declaration, 8 TTABVUE 3-5, ¶¶ 10-17.
Exhibit 15 bears a URL address and date, but it appears to be a private receipt for an online
order rather than a public website. Accordingly, this document does not qualify as a printed
publication that is self-authenticating. See Trademark Rule 2.122(e); Safer, Inc. v. OMS Invs.,
Inc., 94 USPQ2d 1031, 1039 (TTAB 2010) (to qualify as a printed publication, a document
obtained from the Internet must be publicly available).
12 12 TTABVUE 6.
13 We hasten to add that our consideration of the exhibits does not affect the outcome of this
proceeding.
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information, and therefore, where appropriate, we treat these documents as public.
Trademark Rule 2.116(g), 37 C.F.R. § 2.116(g) (“The Board may treat as not
confidential that material which cannot reasonably be considered confidential[.]”);
Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1461
(TTAB 2014) (the Board will not be bound by improper confidentiality designations).
III. Standing
Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1061-62 (Fed. Cir. 2014); Lipton Indus., Inc. v. Ralston Purina Co.,
670 F.2d 1024, 213 USPQ 185, 187-89 (CCPA 1982); Bell’s Brewery, Inc. v. Innovation
Brewing, 125 USPQ2d 1340, 1344 (TTAB 2017). To meet the standing requirement,
a plaintiff need only show that it has a real interest, i.e., a personal stake, in the
outcome of the proceeding. See Ritchie v. Simpson, 170 F.3d 1092, 1095, 50 USPQ2d
1023, 1025-26 (Fed. Cir. 1999); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
1356, 101 USPQ2d 1713, 1727 (Fed. Cir. 2012). A belief in likely damage can be shown
by establishing a direct commercial interest. Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000). Mr. Prynoski has testified that
“Titmouse, Inc. … is primarily an animation company” that also “receives revenue
from sales of clothing and other branded merchandise[.]”14 We find, therefore, that
Petitioner has a direct commercial interest in this proceeding and has established its

14 8 TTABVUE 2, ¶ 2.
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standing. See, e.g., Automedx, Inc. v. Artivent Corp., 95 USPQ2d 1976, 1978 (TTAB
2010).
IV. Section 2(d) Claim
To prevail on its Section 2(d) claim, Petitioner must prove priority and likelihood
of confusion by a preponderance of the evidence. Cunningham, 55 USPQ2d at 1844;
Hydro-Dynamics Inc. v. George Putnam & Co., 811 F.2d 147, 1 USPQ2d 1772, 1773
(Fed. Cir. 1987). For the reasons discussed below, Petitioner has failed to meet its
burden.
A. Priority
Because the pleaded registrations are not of record, Petitioner must prove prior
common law rights by establishing that its mark is distinctive, inherently or
otherwise, and that it has prior and continuous use of the mark TITMOUSE for “t-
shirts” and “animation services,” as pleaded. Giersch v. Scripps Networks, Inc., 90
USPQ2d 1020, 1022-1023 (TTAB 2009) (citing Otto Roth & Co. v. Universal Foods
Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA 1981)). There is no evidence that
TITMOUSE possesses any meaning with regard to “t-shirts” and “animation
services,” and therefore, Petitioner’s mark is arbitrary and distinctive. In assessing
whether Petitioner has established prior use of the mark TITMOUSE, we consider
the evidence of record as a whole. West Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d
1122, 31 USPQ2d 1660, 1663 (Fed. Circ. 1994) (“[O]ne should look at the evidence as
a whole, as if each piece of evidence were part of a puzzle which, when fitted together,
establishes prior use.”).
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Mr. Prynoski testifies that:
• Petitioner “is primarily an animation company” that also “receives a
substantial amount of revenue from sales of clothing and other branded
merchandise online”;
• Petitioner “primarily sells its trademarked goods online via its e-commerce
website”;
• Exhibit 1 to the declaration is “Petitioner’s profit & loss statement for its
merchandise sales for the period February 2013 to April 18, 2017”;
• Exhibit 2 to the declaration is a May 29, 2013 “invoice (to Petitioner) and bank
transfer payment from Petitioner” to a third party “for development of
Petitioner’s e-commerce website that sells Petitioner’s goods”;
• Exhibit 3 is a March 12, 2016 invoice to Petitioner from another third party
“for website development and store design”;
• Exhibit 6 is “a spreadsheet documenting Petitioner’s extensive and substantial
sales of marked goods throughout the United States since May 2013”; and
• Exhibit 7 is “a spreadsheet documenting Petitioner’s costs associated with
sales of marked goods since May 2013.”15
Mr. Prynoski has not testified to the specific mark(s) used to identify the
merchandise Petitioner has sold and the exhibits are not sufficient to clarify the
declaration. The profit and loss statement (Exhibit 1) bears the heading “Titmouse
Store” but does not identify the types of merchandise sold or the mark(s) used to

15 Prynoski Declaration, 8 TTABVUE 2-3, ¶¶ 2-5 and 8-9.
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identify the merchandise. The invoices for website development corroborate Mr.
Prynoski’s testimony that Petitioner operates an e-commerce website, but do not
illuminate the types of branded merchandise sold. Life Zone Inc. v. Middleman Grp.,
Inc., 87 USPQ2d 1953, 1959 (TTAB 2008) (evidence showing existence of a website
“is not evidence that [plaintiff] is using its mark on any goods or services displayed
or discussed on the site”). Petitioner’s sales spreadsheet (Exhibit 6) lists numerous
different line items, some of which reference “Titmouse,” but the text of each line item
is cutoff so it is unclear what types of merchandise or services have been sold. Finally,
Exhibit 7 identifies costs of Petitioner’s business, including costs associated with
“Titmouse orders,” “Titmousestuff orders,” and “Titmouse merchandise shipping,”16
but again, the exhibit does not clarify whether Petitioner has sold or distributed “t-
shirts” or rendered “animation services” under the TITMOUSE mark.
Reading the Prynoski Declaration and exhibits together, we cannot conclude by a
preponderance of the evidence that Petitioner has made prior use of TITMOUSE in a
manner such that consumers would perceive TITMOUSE as a mark for “t-shirts” and
“animation services.” See West Fla. Seafood, 31 USPQ2d at 1664 (the pertinent
inquiry is consumer perception); Gen. Motors Corp. v. Aristide & Co., 87 USPQ2d
1179, 1186 (TTAB 2008) (no common law use found where it was unclear from
testimony whether the witness saw products branded with the pleaded mark and
“unclear [from the evidence] whether or when and on what goods” the mark had

16 These exhibits are designated confidential so we refer to their contents generally and do
not reference sales figures or costs.
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“actually been used”); Cf. Kohler Co., 82 USPQ2d at 1108 (finding plaintiff
established prior common law rights through consistent, definite and uncontradicted
testimony of one witness “buttressed” by documentary evidence).
Because Petitioner has not established priority through the registrations it
pleaded but failed to make of record, or proven prior common law use of the mark
TITMOUSE for “t-shirts” or “animation services,” its Section 2(d) claim fails. For
purposes of completeness, however, we analyze the issue of likelihood of confusion.
B. Likelihood of Confusion
Our likelihood of confusion determination under Section 2(d) is based on an
analysis of all the relevant factors bearing on likelihood of confusion enunciated in In
re E. I. DuPont de Nemours & Co, 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 135 S.Ct.1293, 113
USPQ2d 2045, 2049 (2015)); see also In re Majestic Distilling Co. Inc., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont factor that
is relevant and for which there is evidence of record. See M2 Software, Inc. v. M2
Commc’ns., Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark
Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we
have considered each factor for which we have evidence, we focus our analysis on
those factors we find to be relevant.”). We treat as neutral any DuPont factors for
which there is no record evidence or argument.
In any likelihood of confusion analysis, two key considerations are the similarities
between the parties’ marks and goods and services. Federated Foods, Inc. v. Fort
Cancellation No. 92066512

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Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); In re Mr. Recipe,
LLC, 118 USPQ2d 1084, 1086 (TTAB 2016). As Petitioner has done in its main brief,
we focus our Section 2(d) analysis on the TITMOUSE mark for t-shirts (common law
use and Registration No. 2727107) because it is closest to the mark and goods subject
to Respondent’s involved registration.
1. Similarity or Dissimilarity of the Parties’ Goods and Channels of Trade

A key factor in the likelihood of confusion analysis is the relatedness of the parties’
goods. Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001,
1003-04 (Fed. Cir. 2002). The parties’ respective goods need not be identical or
directly competitive for there to be a likelihood of confusion, but the evidence must
establish that the goods are related in some manner, or the conditions surrounding
their marketing are such, that they could be encountered by the same purchasers
under circumstances that could give rise to the mistaken belief that the goods come
from a common source. Id; see also In re Rexel, Inc., 223 USPQ 830, 831 (TTAB 1984).
The types of evidence often used to demonstrate the relatedness of goods include
third-party websites or advertisements showing that the relevant goods are sold or
advertised together by the same manufacturer or retailer, copies of subsisting use-
based registrations for marks identifying both parties’ goods, and consumer
perceptions as indicated by news articles or testimony. See, e.g., L’Oreal S.A. v.
Macron, 102 USPQ2d 1434, 1440 (TTAB 2012). Petitioner has not submitted any such
evidence. Instead, Petitioner argues that “both parties sell promotional items” and
that the parties’ goods “are at least similar in that the goods are all gift related [sic]
Cancellation No. 92066512

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items.”17 The only evidence Petitioner points to in support of these assertions is
Respondent’s response to Interrogatory No. 5(d) indicating that he has “distributed
[products] free of charge as gifts and promotional items.” Petitioner, however, has not
submitted any evidence to support its assertion that its t-shirts are gift or
promotional items. But even if it had, this alone would not be sufficient to
demonstrate the relatedness of the parties’ goods as many different and unrelated
products may be distributed for free as gifts and promotional items.
Petitioner also argues that the parties’ trade channels are the same because both
parties sell their products “through an online website.”18 Petitioner has submitted
evidence to support that the parties sell products through the Internet,19 but this
evidence has little probative value because the record does not establish the mark
under which Petitioner offers its goods, and, as our precedent recognizes, “virtually
everything is advertised and sold through the Internet.” Parfumes de Coeur, Ltd. v.
Lory Lazarus, 83 USPQ2d 1012, 1021 (TTAB 2007); see also In re St. Helena Hosp.,
774 F.3d 747, 113 USPQ2d 1082, 1088 (Fed. Cir. 2014) (“[A]dvertising on the Internet
is ubiquitous and proves little, if anything, about the likelihood that consumers will
confuse similar marks used on such goods or services.”) (internal quotations omitted);
Standard Knitting, Ltd. v. Toyota Jidosha Kabushiki Kaisha, 77 USPQ2d 1917, 1932
(TTAB 2006).

17 11 TTABVUE 11.
18 Id.
19 Prynoski Declaration, 8 TTABVUE 2, ¶ 2; Respondent’s Declaration, 10 TTABVUE 2, ¶ 1.
Cancellation No. 92066512

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Lastly, in its reply brief, Petitioner asserts that “under the Trademark Office’s
own classification system of related goods, Respondent and Petitioner have, at the
very least, one overlapping class” because Respondent’s registration for “shower
curtains” in International Class 24 is a “Coordinated Class” to Petitioner’s
registration for “t-shirts” in Class 25.20 Petitioner’s pleaded registrations are not of
record, and in any event, this argument is without merit as the United States Patent
and Trademark Office’s classification system is merely an administrative tool that
has no bearing on whether there is a likelihood of confusion between marks. In re
Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018); Jean
Patou Inc. v. Theon Inc., 9 F.3d 971, 29 USPQ2d 1771, 1774 (Fed. Cir. 1993)
(“[C]lassification is wholly irrelevant to the issue of registrability under section
1052(d), which makes no reference to classification.”) (emphasis omitted); Trademark
Manual of Examining Procedure § 1207.01(d)(v) (Oct. 2018 ed.).
The record in this case does not demonstrate that it is common for a single entity
to offer t-shirts and coffee mugs or t-shirts and shower curtains under the same mark.
Petitioner’s unsupported arguments to the contrary are no substitute for evidence.
Enzo Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed.
Cir. 2005); see also Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 91 USPQ2d
1409, 1415 (Fed. Cir. 2009). Accordingly, the key factor involving the relatedness of
the parties’ goods weighs in favor of finding no likelihood of confusion, as does an
analysis of the channels of trade.

20 13 TTABVUE 7.
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2. Similarity or Dissimilarity of the Parties’ Marks
We next consider the similarity or dissimilarity of the parties’ marks in their
entireties as to appearance, sound, connotation and commercial impression. Stone
Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,
1160 (Fed. Cir. 2014); DuPont, 177 USPQ at 567. The issue is not whether the marks
can be distinguished when subjected to a side-by-side comparison, but rather whether
the marks are sufficiently similar in terms of their overall commercial impression
that confusion as to the source of the goods offered under the respective marks is
likely to result. Coach Servs., 101 USPQ2d at 1721. The focus is on the recollection of
the average purchaser, who normally retains a general rather than specific
impression of trademarks. Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975). We do not predicate our analysis on a dissection of the involved marks;
we consider the marks in their entireties. Stone Lion, 110 USPQ2d at 1160; 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.”). But one
feature of a mark may be more significant than another, and it is not improper, for
rational reasons, to give more weight to a dominant feature of a mark, provided the
ultimate conclusion rests on a consideration of the marks in their entireties.21 Stone

21 Respondent argues that “while not dispositive, it is noteworthy” that the Examining
Attorney did not find a likelihood of confusion. 12 TTABVUE 13. As Respondent
acknowledges, we are not bound by the Examining Attorney’s determination, and it has little
probative value. In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001).
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Lion, 110 USPQ2d at 1161 (finding that the Board did not err in reasoning that the
term LION was dominant in both applicant’s mark STONE LION CAPITAL and
opposer’s marks LION CAPITAL and LION); In re Chatam Int’l Inc., 380 F.3d 1340,
71 USPQ2d 1944, 1946 (Fed. Cir. 2004).
The presence of TEN TON in Respondent’s mark creates a three-word alliteration
and incongruence not present in Petitioner’s one-word mark. We also are cognizant
of the principle that prospective consumers may be more likely to focus on the first
portion or word in a trademark. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005).
Nevertheless, the addition of other distinctive matter does not necessarily result in
marks that are dissimilar. See In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271
(TTAB 2009) (holding VANTAGE TITAN for MRI diagnostic apparatus, and TITAN
for medical ultrasound device, likely to cause confusion); see also In re Mighty Tea
Leaf, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (“[T]he presence of an
additional term in the mark does not necessarily eliminate the likelihood of confusion
if some terms are identical.”). If an important portion of both marks is the same, then
the marks may be confusingly similar notwithstanding peripheral differences. See In
re Toshiba, 91 USPQ2d at 1271.
Here, Respondent’s mark incorporates Petitioner’s mark in its entirety. Hunter
Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660 (TTAB 2014) (“Likelihood of
confusion often has been found where the entirety of one mark is incorporated within
another.”). The terms TEN TON are adjectives that modify the term TITMOUSE.
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Stone Lion, 110 USPQ2d at 1161 (finding that the Board did not err in “according
little weight to the adjective ‘STONE’” in applicant’s STONE LION CAPITAL mark).
Moreover, although the commercial impression of Respondent’s mark is that of a
fictionally-oversized titmouse, the impression is still that of a “titmouse,” which is the
only term in Petitioner’s mark. In re Rexel, 223 USPQ at 832 (finding likelihood of
confusion between GOLIATH for pencils and LITTLE GOLIATH for a stapler).
Considering the marks in their entireties, we find them to be more similar than
dissimilar in terms of appearance, sound, meaning and commercial impression and
this favors a finding of likelihood of confusion.
3. Strength of Petitioner’s Mark
“In determining the strength of a mark, we consider both its inherent strength
based on the nature of the mark itself and its commercial strength, based on the
marketplace recognition value of the mark.” Am. Lebanese Syrian, 101 USPQ2d 1022,
1028 (TTAB 2011) (citing Tea Board of India v. Republic of Tea Inc., 80 USPQ2d 1881,
1899 (TTAB 2006)). As discussed, TITMOUSE is arbitrary with respect to Petitioner’s
t-shirts, and therefore, the mark is conceptually strong.
As to commercial strength, Petitioner argues that it “has garnered enormous good
will from its long-standing and continuous use of its trademarks,”22 but the evidence
does not support this assertion as Petitioner has not proven use of its pleaded marks.

22 11 TTABVUE 5.
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Accordingly, although Petitioner’s mark is inherently and conceptually strong,
this factor weighs only slightly in favor of finding likelihood of confusion because
there is no evidence that Petitioner’s mark is commercially strong.
4. Conditions of Purchase
The parties’ goods are ordinary consumer items purchased by members of the
general public who have not been shown to have any particular sophistication about
these purchases. Specialty Brands, Inc. v. Coffee Bean Distrib., Inc., 748 F.2d 669,
223 USPQ 1281, 1282 (Fed. Cir. 1984). The goods also are generally inexpensive items
that are likely to be purchased on impulse without a great deal of care. Recot, Inc. v.
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.”); Kimberly-Clark Corp. v. H. Douglas Enters., Ltd., 774 F.2d 1144,
227 USPQ 541, 542 (Fed. Cir. 1985) (purchasers of “relatively inexpensive and
frequently replaceable … products have long been held to a lesser standard of
purchasing care”). Accordingly, this DuPont factor favors a finding of likelihood of
confusion.
5. Similar Third-Party Marks
Respondent argues that “the use of similar marks on other products” weighs
against a likelihood of confusion.23 In support of this position, Respondent has
submitted evidence of a live registration for the standard character mark TWO

23 12 TTABVUE 15-16.
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TITMICE as well as evidence of live third-party registrations for other “bird” marks
incorporating the terms PENGUIN and DOVE.24 The third-party use-based
registration for the mark TWO TITMICE has little probative value because it covers
“spirits; vodka; whiskey” – goods that on their face are dissimilar to Petitioner’s “t-
shirts” – and there is no evidence that the mark TWO TITMICE is in use. See Palm
Bay Imps., 73 USPQ2d at 1693. In addition, the third-party registrations for
PENGUIN and DOVE-formative marks are not sufficiently similar to be pertinent to
our analysis. For these reasons, this DuPont factor is neutral.
6. Variety of Goods on which the Mark is Used
Petitioner argues that both parties “sell a variety of promotional and gift
products,”25 but there is no evidence in the record to support this assertion, and
therefore, this DuPont factor is neutral.
7. Actual Confusion
Respondent asserts that his mark has been in use “since at least 2016,” and argues
that “[t]he lack of evidence of any actual confusion in the marketplace over the past
two years when both marks existed and were advertised in the market strongly
contradicts Petitioner’s assertion of a likelihood of confusion.”26 This argument is
unpersuasive as the record does not reflect that Petitioner has used its mark with t-

24 10 TTABVUE 5-6, 19-34, and 42-55. Respondent also submitted TESS listings for third-
party EAGLE, HAWK, PENGUIN, and DOVE-formative marks. Id. at 7-18 and 35-41. The
listings, showing only the marks, registrations, and current status, are not sufficient to make
the registrations of record. In re Kysela Pere et Fils, Ltd., 98 USPQ2d 1261, 1264 n.6 (TTAB
2011). But we have considered the lists for whatever probative value they may have.
25 11 TTABVUE 12.
26 12 TTABVUE 15.
Cancellation No. 92066512

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shirts such that there would have been the opportunity for confusion. Lebanon
Seaboard Corp. v. R&R Turf Supply Inc., 101 USPQ2d 1826, 1834 (TTAB 2012);
Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the
probative value of the absence of actual confusion depends on there being a significant
opportunity for actual confusion to have occurred). Accordingly, this DuPont factor is
neutral.
V. Conclusion
We have considered all of the evidence of record and arguments. Petitioner has
not established priority. Moreover, while the DuPont factors of the similarity of the
marks, inherent strength of Petitioner’s mark, and possible low cost and impulse
purchasing weigh in Petitioner’s favor, the evidence does not demonstrate the
relatedness of the parties’ goods or channels of trade. Accordingly, on balance, we
cannot find on the record before us that there is a likelihood of confusion between the
parties’ marks.
Decision: The petition for cancellation is denied.