Voyetra Turtle Beach, Inc.

Trademark Trial and Appeal Board

Dec 9, 2020

87850535 (T.T.A.B. Dec. 9, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: December 9, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Voyetra Turtle Beach, Inc.
_____

Serial No. 87850535
_____

Susan Hwang of Sheppard, Mullin, Richter & Hampton LLP,
for Voyetra Turtle Beach, Inc.
Krystina Osgood, Trademark Examining Attorney, Law Office 121,
Richard White, Managing Attorney.
_____

Before Zervas, Lykos and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Voyetra Turtle Beach, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark STEALTH (in standard characters) for:
Headsets for use with computers; headsets for use with mobile devices,
namely, smartphones, MP3 players, tablets and PDAs; headsets for use
with home entertainment systems, in International Class 9; and
Headsets for use with game consoles; headsets for use with controllers
for game consoles; headsets for use with hand-held units for playing
video games other than those adapted for use with an external display
screen or monitor, in International Class 28.1

1 Application Serial No. 87850535 was filed on March 26, 2018, under Trademark Act Section
1(a), 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and first use in
commerce since at least as early as September 10, 2015 for the goods in Class 9, and based
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The Trademark Examining Attorney refused registration of Applicant’s
STEALTH mark pursuant to Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the
ground of likelihood of confusion with the mark STEALTHWEAR (in standard
characters), registered on the Principal Register for:
Wireless accessories for communications devices, namely, wireless
headsets and transceivers, speaker-microphones, and adapters for two-
way radios; electronic communications instruments and components,
namely, digital transmitters and receivers; communications headsets
for use with communication radios, intercom systems or other
communications network transceivers; devices for wireless radio
transmission, in International Class 9.2
When the refusal was made final, Applicant appealed and requested
reconsideration. The appeal was therefore suspended and the application remanded
so that the Examining Attorney could consider Applicant’s Request for
Reconsideration. After the Examining Attorney denied the Request for
Reconsideration, the appeal was resumed. The appeal is fully briefed. We affirm the
refusal to register.
I. Size of the Record
Before proceeding to the merits of the refusal, we address the size of the record in
this ex parte appeal. With its Request for reconsideration,3 Applicant made of record

upon Applicant’s claim of first use anywhere and first use in commerce since at least as early
as October 3, 2014 for the goods in Class 28.
2 Registration No. 3532288, issued on November 11, 2008; renewed.
3 Request for Reconsideration of April 24, 2020 at TSDR 1-1228. Page references herein to
the application record refer to the online database of the USPTO’s Trademark Status &
Document Retrieval (“TSDR”) system. All citations to documents contained in the TSDR
database are to the downloadable .pdf versions of the documents in the USPTO TSDR Case
Viewer. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018).
References to the briefs on appeal refer to the Board’s TTABVUE docket system. Before the
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in excess of 1,100 pages of material. Of this folio volume, nearly 580 pages consisted
of 40 third-party registrations, with portions of their registration file histories, for
marks including or comprising the term STEALTH. When, as here, third-party
registrations are introduced in an attempt to show the weakness of the mark (or
portion of a mark) in a cited registration, the fact of their issuance and co-existence
on the register is only relevant when the marks or their dominant elements are very
similar and the goods or services for which they are registered are very similar to the
goods involved in the case at hand. As discussed infra, many of these registrations
are not of this type and are irrelevant.
Even where relevant, Applicant provided extraneous information relating to each
third-party registration. For example, accompanying the printout from the TSDR
database of the STEALTH S.S.A. registration, it was superfluous for Applicant to also
provide portions of the prosecution history record, and a plain paper copy of the
registration, and multiple versions of the specimen(s) of use. See Request for
Reconsideration of April 24, 2020 at TSDR 51-61. To be sure, the Board has on many
occasions made note of the insufficiency of mere lists of third party registrations, but
that does not mean that significant portions of file contents of registrations should
instead be submitted, when the mere existence of the registration is the point to be
demonstrated.

TTABVUE designation is the docket entry number; and after this designation are the page
references, if applicable.
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The remainder of the materials submitted with Applicant’s Request for
Reconsideration consist of 29 exhibits comprising excerpts of third-party websites
showing the term STEALTH as all or part of a product name. Once more, as discussed
infra many are not relevant and even where relevant, Applicant provided extraneous
information relating to each third-party website. For example, for the STEALTH X
AUDIO product, Applicant made of record 31 pages of Internet material showing use
of the mark to promote the associated product online. Submission of this volume of
material was wholly unnecessary. It is true that a party may not make Internet
material of record merely by providing links to the pages that show a mark or term,
but all that is necessary is the page or pages that show the mark and the associated
good or service.
As the Board noted when thousands of form declarations were submitted in an
attempt to show the acquired distinctiveness of a proposed mark, “[s]imply put, the
submission of a very large record consisting of materials that are not particularly
probative of the issue under appeal is far less effective than submission of a more
reasonably sized record consisting of materials that support an applicant's
contention….” In re Lorillard Licensing Co., LLC, 99 USPQ2d 1312, 1320 (2011).
Parties are well-advised to generate evidentiary records emphasizing quality over
mere quantity relating to trademark filings in which they find themselves involved.
II. Likelihood of Confusion - Applicable Law
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
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563, 567 (CCPA 1973) (“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). However, “each case
must be decided on its own facts and the differences are often subtle ones.” Indus.
Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
In applying the DuPont factors, we bear in mind the fundamental purposes
underlying Trademark Act Section 2(d), which are to prevent confusion as to source
and to protect registrants from damage caused by registration of confusingly similar
marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331
(1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163
(1995); DuPont, 177 USPQ at 566.
Varying weights may be assigned to the various DuPont factors depending on the
evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1260 (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 In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for
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which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”)).
III. Likelihood of Confusion - Analysis
We now consider the arguments of Applicant and the Examining Attorney, the
applicable law and the evidence of record. The likelihood of confusion factors
Applicant and the Examining Attorney discussed are the strength of Registrant’s
STEALTHWEAR mark, the similarity or dissimilarity of Applicant’s and Registrant’s
marks, and concurrent use of Applicant’s and Registrant’s marks without evidence of
actual confusion. The Examining Attorney also discussed the relatedness of the goods
associated with the respective marks, and the channels of trade in which the marks
and goods travel, which Applicant did not address. We discuss these factors below.
A. The Strength of Registrant’s Mark
In determining the 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).”); Couch/Braunsdorf Affinity, Inc. v. 12
Interactive, LLC, 110 USPQ2d 1458, 1476 (TTAB 2014).
To demonstrate the inherent or conceptual weakness of the STEALTHWEAR
mark, Applicant submitted TESS and TSDR database records, registration copies,
and portions of the registration file histories of 40 registered marks comprising or
including the term STEALTH in connection with goods classified in International
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Class 9.4 Evidence that a mark, or an element of a mark, was adopted or at some time
appropriated by many different registrants may undermine the common element’s
conceptual or inherent strength as an indicator of a single source. Jack Wolfskin
Austrang Fur Draussen GmbH & Co. KGAA v. New Millenium Sports, S.L.U., 797
F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (“[E]vidence of third-party
registrations is relevant to ‘show the sense in which a mark is used in ordinary
parlance,’ ... that is, some segment that is common to both parties’ marks may have
‘a normally understood and well-recognized descriptive or suggestive meaning,
leading to the conclusion that that segment is relatively weak.’”) (quoting Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir.
2015) (the extent of third-party registrations may indicate that a term carries a
suggestive or descriptive connotation and is weak for that reason)); see also Top
Tobacco LP v. N. Atl. Operating Co., 101 USPQ2d 1163, 1173 (TTAB 2011) (third-
party registrations indicate term CLASSIC has suggestive meaning as applied to
tobacco products). Third-party registrations are also entitled to some weight in
deciding, in connection with the first DuPont factor, if the term STEALTH has a
common connotation or meaning. See, e.g., Tektronix, Inc. v. Daktronics, Inc., 534 F.2d
915, 189 USPQ 693, 694-95 (CCPA 1976) (finding third-party registrations may be
used “in the same way that dictionaries are used.”).

4 Applicant’s Brief, 9 TTABVUE 12, citing to third-party registrations made of record with
its Request for Reconsideration of April 24, 2020, at TSDR 8-585.
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However, for third-party registrations to be probative for these purposes, the
‘relevant DuPont inquiry is “[t]he number and nature of similar marks in use on
similar goods.”’ Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d
1315, 128 USPQ2d 1686, 1693-94 (Fed. Cir. 2018) (quoting Century 21 Real Estate
Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992)
and Weiss Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1842
(Fed. Cir. 1990)) (emphasis added).
Only two of the third-party marks were registered in connection with goods
similar to Registrant’s or Applicant’s goods.5 The remaining registrations Applicant
submitted identify goods unrelated to those identified in the application and cited
registration, and Applicant has not offered any argument as to why it believes they
are related to each other. See In re i.am.symbolic, 123 USPQ2d 1744 at 1751
(Applicant “has neither introduced evidence, nor provided adequate explanation to
support a determination that the existence of [third-party] … marks for goods in other
classes … support a finding that registrants' marks are weak with respect to the
goods identified in their registrations.”). We therefore find that Applicant’s
third-party registration evidence is insufficient to show that the term STEALTH is
inherently or conceptually weak for Registrant’s goods.

5 Registration No. 3450701 for the mark STEALTH S.S.A. for “electronic hearing
instruments, namely, non-medical sound amplifiers,” and Registration No. 5948942 for the
mark STEALTH SONICS for “in-ear monitors not for medical purposes.” However, the
registered STEALTH SONICS mark is only of minor relevance, because it is has a different
commercial impression than Registrant’s STEALTHWEAR mark.
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While the third-party registrations Applicant submitted do not assist on the
question of inherent strength of Registrant’s mark, the Examining Attorney
submitted definitions of the term WEAR, including (as a verb) “[t]o carry or have on
one’s person as covering, adornment, or protection”; and (as a noun) “[t]he act of
wearing or the state of being worn, use”.6 Neither Applicant nor the Examining
Attorney made of record a dictionary definition of STEALTH. MERRIAM-WEBSTER
Dictionary defines “stealth” as “intended not to attract attention.”7 In view of these
definitions, we find that STEALTHWEAR in the context of Registrant’s goods
suggests that the goods can be worn by the user and that when worn, they allow
the user to avoid attention. We further find Registrant’s STEALTHWEAR mark to
be inherently distinctive inasmuch as it is registered on the Principal Register
without a claim of acquired distinctiveness under Trademark Act Section 2(f), 15
U.S.C. § 1052(f).
We turn now to the commercial strength of Registrant’s STEALTHWEAR mark.
In an ex parte appeal, the owner of the cited registration is not a party, and the
Examining Attorney is under no obligation to demonstrate exposure to or recognition
of the cited mark in the marketplace. In re Integrated Embedded, 120 USPQ2d 1504,
1512 (TTAB 2016). However, Applicant made of record the following online examples

6 Office Action of October 24, 2019, at TSDR 7; definition of WEAR from THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE.
7 MERRIAM-WEBSTER (https://www.merriam-webster.com/dictionary/stealth, last visited
December 2, 2020). The Board may take judicial notice of dictionary definitions, including
online dictionaries that exist in printed format or have regular fixed editions. See In re
Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d
1632 (Fed. Cir. 2016).
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of “third-party marks that employ the term STEALTH for headsets, earbuds and
other audio and electronics … products” to demonstrate the commercial weakness of
the STEALTHWEAR mark:8
 Stealth Buds earphone products (Request for Reconsideration of April 24,
2020, at TSDR 586-591, Exh. 2).
 Stealth Pods earphone products (Id. at 592-608, Exh. 3).
 Stealth X Audio earphone products (Id. at 609-640, Exh. 4).
 Stealth Sonics earphone products (Id. at 641-687, Exh. 5).
 Pro Ears Stealth Stereo Ear Buds (Id. at 688-709, Exh. 6).
 Hyper Gear Stealth Noise-Canceling Headphones (Id. at 710-735, Exh. 7).
 Siege Audio Stealth Stereo Ear Buds (Id. at 736-750, Exh. 8).
 Jabra Stealth Bluetooth headphone products (Id. at 751-775, Exh. 9).
 Miccus Stealth SR-17 Headphones (Id. at 776-811, Exh. 10).
 Ecko Stealth Wireless Headsets (Id. at 812-827, Exh. 11).
 Audio Council Stealth On-Ear Headphones (Id. at 812-827, Exh. 12).
 Audiology Stealth Bluetooth Headphones (Id. at 846-858, Exh. 13).
 Sentry Stealth Stereo Ear Buds (Id. at 859-870, Exh. 14).
 iWorld Stealth Sound Ear Buds (Id. at 871-882, Exh. 15).
 iJoy Logo Stealth Wireless Headphones (Id. at 883-914, Exh. 16).
 iFrogz Caliber Stealth Mobile Gaming Headphones (Id. at 915-923, Exh. 17).
 Debco Dynamic Stealth Folding Wireless Headphones (Id. at 924-928, Exh. 18).
 TWS Stealth Wireless Earphones (Id. at 929-942, Exh. 19).
 Rocket Science Stealth Headsets (Id. at 943-948, Exh. 20).
 Faro Stealth Headsets (Id. at 949-958, Exh. 21).
 Plantronics Backbeat Fit Stealth Headsets (Id. at 959-965, Exh. 22).
 Koss Stealth In-Ear Stereo Headphones (Id. at 966-983, Exh. 23).
 TEA N-Ear Stealth Earpieces (Id. at 984-992, Exh. 24).
 Stealth 3-wire earpiece kits sold at Klein Electronics (Id. at 993-997 Exh. 25).

8 Applicant’s Brief, 9 TTABVUE 12-15, citing to third-party uses made of record with its
Request for Reconsideration of April 24, 2020, at TSDR 586-1228.
Serial No. 87850535
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 ESP Stealth hearing protection earpieces, Bluetooth wireless hands free
Stealth Headphones, Stealth wireless headphones, Mini 520 Stealth Small
Earphones, Stealth 3-wire earpiece kits, OTS Stealth Full Face Channel
Communication headgear, Stealth HD wireless headphones, Sport Running
S530 and S650 Mini Stealth Wireless Bluetooth 4.1 Earphones, and TWS
Bluetooth headphones T1C mini stealth 3D wireless headsets sold at various
locations (Id. at 998-1050, Exh. 26).
 Alto Stealth Wireless Stereo Transmitter and Receiver Systems (Id. at 1051-
1120, Exh. 27).
 iWorld Stealth Audio Docking System. (Id. at 1121-1126, Exh. 28).
 Wet Sounds Stealth-10 Ultra HD Soundbar (Id. at 1127-1138, Exh. 29).
 Stealth Components electronic components products and services (Id. at 1139-
1151, Exh. 30).
 Stealth Acoustics audio speakers and systems (Id. at 1152-1228, Exh. 31).
We find Applicant’s online examples provided as Exhs. 2-24 and portions of 26
(Request for Reconsideration of April 24, 2020, at TSDR 586-992, 998-1005, 1018-
1030, 1036-1037 and 1041-1050) are probative to demonstrate the commercial
weakness of the term STEALTH in connection with headphones and audio earpieces
(e.g., ear buds, earphones, etc.). “The purpose of a defendant introducing third-party
uses is to show that customers have become so conditioned by a plethora of such
similar marks that customers ‘have been educated to distinguish between different
such marks on the bases of minute distinctions.’” Primrose Retirement Cmtys., LLC
v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (quoting
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “‘[E]ven where the specific extent
and impact of the usage has not been established,’ such evidence of third-party use is
relevant to show that a term ‘may have a normally understood and well-recognized
descriptive or suggestive meaning, leading to the conclusion that that [term] is
Serial No. 87850535
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relatively weak,’ and ‘can show that customers have been educated to distinguish
between different marks on the basis of minute distinctions.’” Primrose Retirement,
LLC, 122 USPQ2d at 1036 (quoting Jack Wolfskin, 116 USPQ2d at 1136 (further
quoting Juice Generation, 115 USPQ2d at 1674)). However, we find irrelevant
Applicant’s third-party use examples provided as Exhs. 27-31 (Id. at 1051-1228),
because the products shown are not similar to Registrant’s or Applicant’s goods.
From a conceptual standpoint, we afford Registrant’s STEALTHWEAR mark the
ordinary scope of protection given a suggestive, registered, inherently distinctive
mark, as opposed to a limited scope of protection that would be accorded a
conceptually weaker mark. King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108, 109-110 (CCPA 1974); In re Colonial Stores, Inc., 216 USPQ
793, 795 (TTAB 1982). Applicant’s third-party use evidence, however, demonstrates
the limited commercial strength of the term STEALTH in connection with
Registrant’s goods. While limited in marketplace strength, STEALTH is still
suggestive because some imagination is required to identify the nature, qualities or
characteristics of the goods, and (as discussed below) WEAR is the weaker portion of
the STEALTHWEAR mark than STEALTH.
While we find the term STEALTH common to Applicant’s and Registrant’s marks
to be highly suggestive, even marks deemed weak are still entitled to protection under
Trademark Act Section 2(d) against the registration by a subsequent user of a similar
mark for related goods. See King Candy, 182 USPQ at 109; In re Max Capital Grp.
Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010).
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B. The Similarity or Dissimilarity of 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; In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir.
2018). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, 126 USPQ2d at 1746 (quoting In re
Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)).
Under actual marketing conditions, consumers do not necessarily have the luxury
of making side-by-side comparisons between marks, and must instead rely upon their
imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ 255, 259
(TTAB 1980). “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.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127
USPQ2d 1797, 1801 (Fed. Cir. 2018) (quotation omitted).
The parties’ marks “must be considered … in light of the fallibility of memory ….”
In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014)
(quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683,
196 USPQ 1 (CCPA 1977)). Therefore, the focus is on the recollection of the average
purchaser, here, the purchasers of headphones, ear buds, and audio earphones, who
normally retains a general rather than a specific impression of trademarks. In re
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Assoc. of the U.S. Army, 85 USPQ2d 1264, 1268 (TTAB 2007); Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
We find Applicant’s mark is identical to the first portion of Registrant’s mark –
STEALTH. We turn next to Applicant’s argument that its mark, STEALTH, is
visually distinguishable from Registrant’s mark, STEALTHWEAR, because although
“Applicant’s mark shares a component [STEALTH] with the Cited Mark …
Applicant’s mark does not contain the word WEAR.”9 Applicant further argues that
there are “significant differences in sound between Applicant’s mark STEALTH and
the STEALTHWEAR mark due to the addition of WEAR in the Cited Mark.”10
Applicant’s visual dissimilarity argument is contrary to the above-quoted
guidelines of the U.S. Court of Appeals for the Federal Circuit when we compare
marks for likelihood of confusion purposes. The proper test is not a side-by-side
comparison, but instead whether the marks are sufficiently similar such that persons
who encounter them would be likely to assume a connection between the parties. Cai
v. Diamond Hong, 127 USPQ2d at 1801.
While likelihood of confusion cannot be predicated on dissecting the marks into
their various components, different features may be analyzed and given more or less
weight, provided the ultimate conclusion rests on a consideration of the marks in
their entireties. See In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). When we consider the marks in their entireties, we find the term

9 Applicant’s Brief, 9 TTABVUE 18 and 21.
10 Id. at 21.
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STEALTH to be the dominant portion of Registrant’s mark and the entirety of
Applicant’s mark. See Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895,
1897 (TTAB 1988) (“[I]t is often the first part of a mark which is most likely to be
impressed upon the mind of a purchaser and remembered”); Century 21 Real Estate
Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992)
(upon encountering the marks, consumers will first notice the identical lead word).
Matter that is descriptive of or generic for a party’s goods is typically less
significant or less dominant when comparing marks. In re Detroit Athletic, 128
USPQ2d at 1050 (citing In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531,
1533-34 (Fed. Cir. 1997)). Although we must, and do, consider the marks in their
entireties, we find the term WEAR, the second portion of Registrant’s mark, to be of
less significance when comparing the two marks. Having said this, we recognize that
“[n]o element of a mark is ignored simply because it is less dominant, or would not
have trademark significance if used alone.” In re Electrolyte Labs. Inc., 913 F.2d 930,
16 USPQ2d 1239, 1240 (Fed. Cir. 1990) (citing Spice Islands, Inc. v. Frank Tea &
Spice Co., 505 F.2d 1293, 184 USPQ 35 (CCPA 1974)).
As noted above, the term WEAR (as a verb) means “to carry or have on one’s
person as covering, adornment, or protection”; and (as a noun) “the act of wearing or
the state of being worn, use”.11 Thus, the Examining Attorney argues that “the term
WEAR in [R]egistrant’s mark is less significant when comparing the marks because

11 Office Action of October 24, 2019, at TSDR 7; definition of WEAR from THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE.
Serial No. 87850535
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this wording merely describes a feature of [R]egistrant’s goods, notably, that the
consumers of [Registrant’s] … goods are to place the goods on one’s body to use,
rendering the term STEATH as the dominant portion and afforded more weight.”12
We agree.
Comparing the marks in their entireties as to commercial impression, the
Examining Attorney further argues:
 The marks are confusingly similar because [A]pplicant’s STEATH mark is
entirely encompassed in … [R]egistrant’s mark STEALTHWEAR, which also
results in the marks being similar in structure and sound due to the sole and
dominant term STEALTH in [A]pplicant’s mark and the dominant and
identical first portion of registrant’s mark, notably, STEALTH.13
 Because [A]pplicant’s mark contains no additional terms other than
STEALTH, [A]pplicant’s mark is likely to appear to prospective purchasers as
a shortened form of [R]egistrant’s mark. Thus, merely omitting some of the
wording from a registered mark may not overcome a likelihood of confusion.
See In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed.
Cir. 2010) (“[Applicant’s mark] ML is likely to be perceived as a shortened
version of [Registrant’s] ML MARK LEES [mark] when used on the same or
closely related skin care products.”).14
 Both marks connote that [A]pplicant’s and [R]egistrant’s goods when applied
to the respective goods as indicated by [A]pplicant “suggests a desirable
quality, namely, technology that allows the ability to avoid detection.”15
We agree with these arguments put forward by the Examining Attorney. As we
mentioned above, “stealth” is defined as “intended not to attract attention.” This
meaning attaches to both marks in the context of their respective goods – it suggests

12 Examining Attorney’s Brief, 11 TTABVUE 10-11.
13 Id. at 10.
14 Id.
15 Id. at 13, citing Applicant’s Brief, 9 TTABVUE 23.
Serial No. 87850535
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that the goods can be used to avoid attention. Applicant, on the other hand, goes a
step further and contends:
[T]he word STEALTH is widely used for headsets and other electronics
products, presumably because it suggests a desirable quality, namely,
technology that allows the ability to avoid detection. Applicant’s mark
STEALTH, when applied to its headsets, conveys this impression.

The Cited Mark STEALTHWEAR does not convey this meaning. The
addition of the word WEAR to the word STEALTH transforms the
meaning of the Cited Mark to suggest something worn, like “headwear”
or “footwear”. The Cited Mark STEALTHWEAR conveys an impression
of something that is worn in order avoid detection. The emphasis of the
connotation and commercial impression of the Cited Mark is on the
quality or mode of attachment of Registrant’s product, not the
underlying technology. This is not the connotation and commercial
impression of Applicant’s mark.16

We disagree with the conclusions Applicant reaches from the evidence of record,
and instead find that the presence of the term STEALTH in Applicant’s and
Registrant’s marks suggests that the goods allow the user to avoid detection by others
of whatever the user is listening to. We also disagree with Applicant’s argument that
the addition of the word WEAR to the term STEALTH transforms the meaning of
Registrant’s mark to suggest something worn. We find the addition of WEAR to
STEALTH merely informs the user that the goods can be worn, with the objective of
avoiding detection. As we discussed above, STEALTH is dominant portion of
Registrant’s mark because it is the first term, and because WEAR is conceptually
weaker than STEALTH. We also find STEALTH to be suggestive as a bit of a mental

16 Applicant’s Brief, 9 TTABVUE 23.

Serial No. 87850535
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leap is required to determine its meaning in connection with Registrant’s goods. This
contextual meaning is not immediate upon encountering the STEALTHWEAR mark.
Comparing the STEALTH and STEALTHWEAR marks in their entireties as to
appearance, sound, meaning and commercial impression, for the reasons mentioned
above, we find they are more similar than they are different. The first DuPont factor,
similarity of the marks, supports the conclusion that confusion is likely.
C. The Similarity or Dissimilarity and Nature of the
Goods, and Channels of Trade
1. Similarity of Goods17
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration.…” DuPont, 177
USPQ at 567. “This factor considers whether ‘the consuming public may perceive [the
respective goods … of the parties] as related enough to cause confusion about the
source or origin of the goods ….’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d
1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281
F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)).
To determine the relationship between the respective goods, we are bound by the
identifications in Applicant’s involved Application and the cited Registration. In re
Dixie Rests., 41 USPQ2d at 1534 (“Likelihood of confusion must be determined based
on an analysis of the marks as applied to the [goods] … recited in applicant’s
application vis-à-vis the [goods] … recited in [a] … registration, rather than what the

17 Applicant does not address the Examining Attorney’s evidence or argument regarding the
relatedness of the goods. Nonetheless, the burden remains with the Examining Attorney to
show that the goods are related.
Serial No. 87850535
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evidence shows the [goods] … to be.”) (citing Canadian Imperial Bank v. Wells Fargo
Bank, N.A., 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987)).
“Likelihood of confusion must be found as to the entire class [of goods] if there is
likely to be confusion as to any … [product] that comes within the recitation of …
[goods] in that class.” Primrose Retirement, 122 USPQ2d at 1033 (citing Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981)).
Registrant’s goods in Class 9 include “wireless headsets and transceivers, speaker-
microphones, and adapters for two-way radios” and “communications headsets for
use with communication radios, intercom systems or other communications network
transceivers.” Applicant’s goods in Class 9 comprise “headsets for use with computers;
headsets for use with mobile devices, namely, smartphones, MP3 players, tablets and
PDAs; headsets for use with home entertainment systems.” Applicant’s goods in Class
28 comprise “headsets for use with game consoles; headsets for use with controllers
for game consoles; headsets for use with hand-held units for playing video games
other than those adapted for use with an external display screen or monitor.”
Registrant’s and Applicant’s goods need not be identical or even competitive to
find a likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d
1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54
USPQ2d 1894, 1898 (Fed. Cir. 2000). They need only be “related in some manner
and/or if the circumstances surrounding their marketing are such that they could
give rise to the mistaken belief that [the goods] … emanate from the same source.”
Serial No. 87850535
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Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722
(Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB
2007)).
Evidence of relatedness may include news articles or third-party websites showing
that the relevant goods are used by purchasers for the same purpose; advertisements
showing that the relevant goods are advertised together; or copies of use-based
registrations of the same mark for both Applicant’s identified goods and the goods
listed in the cited registration. See, e.g., In re Davia, 110 USPQ2d at 1817 (finding
pepper sauce and agave related where evidence showed both were used for the same
purpose in the same recipes and thus consumers were likely to purchase the products
at the same time and in the same stores).
The Examining Attorney made of record excerpts from 15 third-party webpages
showing that it is not uncommon for the same companies to promote and sell audio
headsets, gaming headsets and wireless and communications headsets of the types
identified in Applicant’s and Registrant’s identifications of goods under the same
mark:
 SENNHEISER, offering headphones for entertainment systems, gaming
headsets, communication headsets and wireless headsets (Office Action dated
July 12, 2018, at TSDR 10-30).
 AUDIO-TECHNICA, offering professional, wireless, gaming, communications
and various other headsets to consumers (Office Action dated July 12, 2018, at
TSDR 31-40).
 BOSE, offering wireless headsets, headsets for mobile devices, and headsets
for communication purposes (Office Action dated October 24, 2019, at TSDR
pp. 9-21).
Serial No. 87850535
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 ASTRO, offering wireless headsets, communications headsets, gaming
headsets and headsets for use with computers (Final Office Action dated
October 24, 2019, at TSDR 22-36).
 LUCIDSOUND, offering gaming headsets, wireless headsets, headsets for use
with mobile devices, headsets for use with entertainment systems (Office
Action dated October 24, 2019, at TSDR 37-50).
 HYPERX, offering gaming headsets, communications headsets, wireless
headsets (Office Action dated October 24, 2019, at TSDR 51-66).
 LOGITECH, offering wireless headsets for computers, mobile devices and
tablets, communication headsets, headsets for use with games, headsets for
use with entertainment systems, and headsets for communication purposes
(Office Action dated October 24, 2019, at TSDR 67-102).
 STEELSERIES, offering wireless headsets, headsets for entertainment
systems, headsets for gaming systems, headsets for computers and mobile
devices (Office Action dated October 24, 2019, at TSDR 103-126).
 ASUS, offering gaming headsets, wireless headsets, and headsets for
computers (Office Action dated October 24, 2019 at TSDR 127-153).
 CAVCOM INC., offering headsets for use with mobile devices and radio
communications headsets (Denial of Request for Reconsideration dated May
15, 2020 at TSDR 19-26).
 COBALT, offering wireless headsets, headsets for use with mobile phones and
two-way radio communications headsets (Denial of Request for
Reconsideration dated May 15, 2020, at TSDR 27-29).
 MIDLAND, offering communications headsets for use with communication
radios and intercoms and wireless headsets for use with mobile phones and
MP3 players (Denial of Request for Reconsideration dated May 15, 2020, at
TSDR 30-39).
 MOTOROLA, offering headsets for use with mobile devices, two-way radio
headsets and wireless headsets (Denial of Request for Reconsideration dated
May 15, 2020, at TSDR 40-49).
 POLY, offering mobile headsets, wireless headphones and earbuds, and
aviation headsets (Denial of Request for Reconsideration dated May 15, 2020,
at TSDR 50-65).
 RUGGED RADIOS, offering headsets for mobile devices, headsets for two-way
radios, and wireless headsets (Denial of Request for Reconsideration dated
May 15, 2020, at TSDR pp. 66-73).
These third-party websites establish that the same entities commonly provide
Registrant’s and Applicant’s types of goods through the same trade channels for use
Serial No. 87850535
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by the same classes of consumers in fields of use that are similar or complementary
in purpose or function. Consequently, Registrant’s and Applicant’s goods are
commercially related. See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-
04 (TTAB 2009).
The second DuPont factor, the relatedness of Registrant’s Class 9 goods and
Applicant’s Class 9 and 28 goods, supports a finding that confusion is likely.
2. Similarity in Channels of Trade
The third DuPont factor concerns the “similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014). Neither the STEALTHWEAR Registration nor the STEALTH Application
contains any restriction on the channels of trade or classes of purchasers. We
therefore presume that the cited Registration and involved Application encompass all
goods of the type described, that they move in all normal channels of trade, and that
they are available to all classes of purchasers – members of the general public who
are purchasers and users of audio headphones and earpieces, see Levi Strauss & Co.
v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed.
Cir. 2013), on the basis of all normal and usual methods of distribution. SquirtCo v.
Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). We also note, once
more, the 15 third-party websites made of record by the Examining Attorney through
which Registrant’s and Applicant’s types of goods are promoted and sold – online
direct-to-consumer websites – demonstrating an overlap of trade channels. Again, as
noted above, Applicant does not address the Examining Attorney’s evidence or
Serial No. 87850535
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argument regarding the overlap of trade channels. The third DuPont factor, channels
of trade, weighs in favor of finding that confusion is likely.
D. Absence of Actual Confusion
Applicant argues that “Applicant’s STEALTH mark and Registrant’s
STEALTHWEAR mark have been in concurrent use for almost six years. Applicant
is not aware of a single instance of actual confusion during this time period, nor has
Registrant reported any instances of confusion to Applicant. … [T]his favors a finding
that no likelihood of confusion exists between the marks at issue.”
Our analysis as to the first, second and third DuPont factors, discussing the
similarity or dissimilarity of the marks, goods and channels of trade, is based, as
dictated by precedent from the U.S. Federal Circuit Court of Appeals, on the
identifications as set forth in the application and the cited registration. See Stone
Lion, 110 USPQ2d at 1162. As such, we may not consider, in assessing
these DuPont factors, evidence of how Applicant and Registrant are actually
promoting and selling their products in the marketplace. Id.
“The eighth DuPont factor — ‘[t]he length of time during and conditions under
which there has been concurrent use without evidence of actual
confusion,’ DuPont, 177 USPQ at 567 — by contrast, requires us to look at actual
market conditions, to the extent there is evidence of such conditions of record. In
this regard, we consider all of the evidence of record that may be relevant to the
eighth DuPont factor.” In re Guild Mortg. Co., 2020 USPQ2d 10279, at *6 (TTAB
2020).
As the Board further noted in Guild Mortg.:
Serial No. 87850535
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[I]n th[e] ex parte context, there has been no opportunity to hear from
Registrant about whether it is aware of any reported instances of
confusion. We therefore are getting only half the story. (citations
omitted). This constraint inherent in the ex parte context necessarily
limits the potential probative value of evidence bearing on the
eighth DuPont factor, compared with an inter partes proceeding, where
the registrant has an opportunity to present argument and evidence in
response.
Guild Mortg., at *7-8.
Additionally, as noted by the Examining Attorney, “‘a showing of actual confusion
is not necessary to establish a likelihood of confusion.’” In re i.am.symbolic, 123
USPQ2d at 1747 (quoting Herbko, 64 USPQ2d at 1380). “[T]he relevant test is
likelihood of confusion, not actual confusion.” In re Detroit Athletic, 128 USPQ2d
at 1053. “Uncorroborated statements of no known instances of actual confusion ... are
of little evidentiary value,” especially in ex parte examination. In re Majestic, 65
USPQ2d a 1205.
Moreover, there is no indication as to how long Applicant’s and Registrant’s marks
have been in use contemporaneously, reflecting an opportunity for confusion to have
occurred. See Regents v. Miners, 110 USPQ2d 1182, 1196 (TTAB 2014) (applicant had
only begun to offer services two years before discovery closed, so little opportunity for
confusion). The record also does not reflect the extent of use of Applicant’s mark, so
we are unable to gauge whether there has been any meaningful opportunity for
confusion to occur in the marketplace. See Bond v. Taylor, 119 USPQ2d 1049, 1056
(TTAB 2016).
In light of these considerations, we find the eighth DuPont factor, the absence of
actual confusion, to be a neutral factor in our likelihood of confusion analysis.
Serial No. 87850535
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IV. Likelihood of Confusion - Conclusion
The first, second and third DuPont factors weigh in favor of finding that confusion
between the STEALTH and STEALTHWEAR marks and associated goods is likely.
The marks are more similar than dissimilar, the goods are related, and the channels
of trade overlap. While the commercial weakness of the term STEALTH in
Registrant’s STEALTHWEAR mark lessens the scope of protection of Registrant’s
mark, we still afford the mark protection under Trademark Act Section 2(d) against
registration of a similar mark for related goods that travels in overlapping channels
of trade. We find the absence of actual confusion to be a neutral factor on this appeal.
Balancing the DuPont factors and other likelihood of confusion factors based on
the record and arguments, we find a likelihood of confusion exists between
Applicant’s STEALTH mark for Applicant’s goods in Classes 9 and 28, and
Registrant’s STEALTHWEAR mark for Registrant’s goods in Class 9.

Decision: The refusal to register Applicant’s STEALTH mark in Classes 9 and 28
on the ground of likelihood of confusion pursuant to Trademark Act Section 2(d) is
affirmed.