Callie Renae McMorran

This Opinion is Not a
Precedent of the TTAB
Mailed: December 5, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Callie Renae McMorran
_____
Serial No. 98502058
_____
Thomas L. Moses of Southeast IP Group, LLC,
for Callie Renae McMorran.
Jeffrey DeFord, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____
Before Lykos, Dunn, and Stanley,
Administrative Trademark Judges.
Opinion by Stanley, Administrative Trademark Judge:
Callie Renae McMorran (“Applicant”) seeks registration on the Principal Register
of the standard-character mark HUSTLE SOLD SEPARATELY for “hats; hoodies;
shirts,” in International Class 25, and “targets; discs for playing disc golf,” in
International Class 28.1
1 Application Serial No. 98502058 was filed on April 16, 2024 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging June 22, 2022 as the date of first use anywhere
and date of first use in commerce for the goods in both Classes 25 and 28.

Serial No. 98502058
- 2 -
The Trademark Examining Attorney refused registration as to the Class 25 goods
only under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark, when used in connection with the identified goods in Class 25, so
resembles the registered standard-character mark THE DREAM IS FREE...THE
HUSTLE IS SOLD SEPARATELY for the goods listed below, that it is likely to cause
confusion, to cause mistake, or to deceive:
Clothing, namely, hats, shirts, sweatpants, hoodies and
jackets, in International Class 25.2
When the refusal was made final, Applicant appealed. The appeal is briefed. We
affirm the refusal to register Applicant’s mark.3
I. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). See also In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023).
Our determination under Section 2(d) is based on an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E. I. DuPont de Nemours
& Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”); see also In re Majestic Distilling
Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). When analyzing the likelihood of confusion
2 Registration No. 6515829 issued on the Principal Register on October 12, 2021. The cited
registration is owned by MVM Illuzionz (“Registrant”).
3 Citations to the prosecution file are to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system in .pdf format. Citations to the appeal record are to TTABVUE,
the Board’s online docketing system.

Serial No. 98502058
- 3 -
factors, the overriding concerns are not only to prevent buyer confusion as to the
source of the goods, but also to protect registrants from adverse commercial impact
due to use of a similar mark by a newcomer. See In re Shell Oil Co., 992 F.2d 1204,
1207-08 (Fed. Cir. 1993).
In any likelihood of confusion analysis, different DuPont factors may play a
dominant role and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1116 (Fed. Cir. 2024) (citing Tiger Lily Ventures Ltd. v. Barclays Cap.
Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be
assigned to each factor depending on the evidence presented, and “any one of the
factors may control a particular case.” Id.; see also Charger Ventures, 64 F.4th at 1381.
Although we consider each DuPont factor for which there is evidence and argument,
In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019), two key considerations
are the similarities between the marks and the similarities between the goods. In re
i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)). These factors, and
others, are discussed below.
A. The Services and Trade Channels
We begin our analysis with the second DuPont factor, which considers the
“similarity or dissimilarity and nature of the goods … as described in an application
or registration,” and the third DuPont factor, which considers “[t]he similarity or
dissimilarity of established, likely-to-continue trade channels.” In re Detroit Athletic
Co., 903 F.3d 1297, 1306, 1308 (Fed. Cir. 2018) (quoting DuPont, 476 F.2d at 1361).

Serial No. 98502058
- 4 -
In making our determination regarding the similarity of the goods, we must look
to the goods as identified in the subject application and the cited registration. See
Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014)
(citing Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir.
1990) (“‘[T]he question of registrability of an applicant’s mark must be decided on the
basis of the identification of goods set forth in the application … regardless of what
the record may reveal as to the particular nature of an applicant’s goods, the
particular channels of trade or the class of purchasers to which sales of the goods are
directed.’”)). It is sufficient for a finding of likelihood of confusion as to a particular
class if relatedness is established for any item of identified goods within that class.
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981).
The clothing items identified in Class 25 of the subject application (“hats,”
“hoodies,” and “shirts”) are in-part identical to the clothing items identified in the
cited registration (“clothing, namely, hats, shirts, sweatpants, hoodies and
jackets”).
Turning to the trade channels, because Applicant’s Class 25 goods in the
application are in-part identical to the Class 25 goods of the cited registration, we
must presume that the channels of trade and classes of consumers are the same for
such goods. See In re Fat Boys Water Sports LLC, No. 86490930, 2016 TTAB LEXIS
150, at *26 (“Because the goods at issue are legally identical, we must presume that
the goods of Applicant and Registrant move in the same channels of trade and are
offered to the same classes of consumers.”); see also In re Viterra Inc., 671 F.3d 1358,

Serial No. 98502058
- 5 -
1362 (Fed. Cir. 2012) (finding Board entitled to rely on this legal presumption in
determining likelihood of confusion).
The Examining Attorney has demonstrated that Applicant’s and Registrant’s
goods are in-part identical, and we presume that the trade channels and classes of
consumers are the same for the legally identical goods. Accordingly, the second and
third DuPont factors strongly favor a likelihood of confusion.
B. The Marks
We turn now to the first DuPont factor, which involves an analysis of the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation, and commercial impression. Palm Bay Imps. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005); see also
Stone Lion Cap. Partners, 746 F.3d at 1319. “Similarity in any one of these elements
may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC,
No. 87075988, 2018 TTAB LEXIS 170, at *13 (quoting In re Davia, No. 85497617,
2014 TTAB LEXIS 214, at *4), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019); accord
Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968) (“It is
sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”) (citation omitted).
“‘[S]imilarity is not a binary factor but is a matter of degree.’” In re St. Helena
Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d
1340, 1344 (Fed. Cir. 2003)). The proper test regarding similarity “‘is not a side-by-
side comparison of the marks, but instead whether the marks are sufficiently similar

Serial No. 98502058
- 6 -
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, 1373 (Fed. Cir. 2018) (quoting Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012)). “The focus is on the recollection
of the average purchaser, who normally retains a general rather than a specific
impression of trademarks.” In re St. Julian Wine Co., No. 87834973, 2020 TTAB
LEXIS 196, at *13.
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, our finding must be based on the entire marks, not just part of
the marks. See, e.g., In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985); see
also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (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.”). “No 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., 929 F.2d 645, 647 (Fed. Cir.
1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293 (CCPA
1974)). Nonetheless, “in articulating reasons for reaching a conclusion on the issue of
confusion, there 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.” Detroit Athletic,
903 F.3d at 1305 (quoting Nat’l Data Corp., 753 F.2d at 1058).

Serial No. 98502058
- 7 -
Where the goods are in-part identical, as is the case here, the degree of similarity
between the marks necessary to support a determination that confusion is likely
declines. Sunkist Growers, Inc. v. Intrastate Distribs., Inc., 144 F.4th 1376, 1379 (Fed.
Cir. 2025) (citing Coach Servs., 668 F.3d at 1368) (“‘[I]f the parties’ goods are closely
related, a lesser degree of similarity between the marks may be sufficient to give rise
to a likelihood of confusion.’”).
With these principles in mind, we compare Applicant’s standard-character mark
HUSTLE SOLD SEPARATELY with the cited standard-character mark THE
DREAM IS FREE...THE HUSTLE IS SOLD SEPARATELY.
Applicant argues that the first DuPont factor weighs against a likelihood of
confusion because the commercial impression and meaning of the marks differ. More
specifically, Applicant argues that: (1) Applicant’s mark and the cited mark have
“distinct consumer interpretations” in that “Applicant’s mark may be perceived as a
marketing expression for apparel, detached from motivational slogans” whereas the
cited mark “has an established tone of encouragement and self-determination”;
(2) the “dominant element” of the cited mark is “THE DREAM IS FREE” because it
“positions the [cited] mark in the context of goal-setting and self-improvement[,]”
which “duality or aspirational message” Applicant’s mark lacks, as Applicant’s mark
“suggest[s] a witty or ironic take on effort and consumer products—effectively
separating merchandise from intangible qualities like ambition or motivation”; and

Serial No. 98502058
- 8 -
(3) Applicant’s mark “functions more as a cultural catchphrase than a motivational
principle, which further distinguishes it from the cited mark’s philosophical tone.”4
Applicant further argues that Applicant’s mark and the cited mark differ in
appearance, sound, and structure because: (1) Applicant’s mark is “a succinct, three-
word phrase composed of seven syllables” whereas the cited mark is “a substantially
longer nine-word phrase containing fourteen syllables and two complete clauses
separated by an ellipsis”; (2) “[t]he presence of the introductory clause [‘THE DREAM
IS FREE’] in the cited mark not only lengthens the phrase but shifts the point of
emphasis, guiding the consumer’s attention toward the overarching motivational
sentiment” and “[t]his tonal difference is reinforced by the ellipsis, which indicates a
pause and further separates the two ideas within the cited mark”; (3) “the marks
differ in rhythm and stress patterns”; and (4) “the rhythm and cadence of the marks
contribute to distinct consumer takeaways.”5
The Examining Attorney counters that the first DuPont factor favors a likelihood
of confusion because: (1) “the first part of the registered mark ‘THE DREAM IS FREE’
element is merely [] a segue and guides the consumer into the main message which
is conveyed by the second part of the registrant’s mark, ‘THE HUSTLE IS SOLD
SEPARATELY’, meaning you must work hard” and therefore “the ‘THE DREAM IS
FREE’ element is in fact less significant in terms of affecting the mark’s commercial
impression, and renders the wording ‘THE HUSTLE IS SOLD SEPARATELY’ the
4 Applicant’s Br., 4 TTABVUE 6-7.
5 Id. at 7-9.

Serial No. 98502058
- 9 -
more dominant wording of the registered mark”; (2) “both marks espouse hard word
[sic] or effort” and therefore “are identical in meaning and connotation and more
importantly the applied-for mark conveys the same overall commercial impression as
the mark of the registrant”; and (3) Applicant’s mark “is likely to appear to
prospective purchasers as a shortened form of registrant’s mark.”6
As noted above, “[s]imilarity is not a binary factor but is a matter of degree.” St.
Helena Hosp., 774 F.3d at 752 (quotation omitted). We need not determine whether
“THE DREAM IS FREE…” or “THE HUSTLE IS SOLD SEPARATELY” is the
dominant portion of the cited mark. Considering the marks in their entireties, the
shared wording HUSTLE SOLD SEPARATELY creates similarities that outweigh
the differences introduced by Registrant’s prefatory clause “THE DREAM IS
FREE…” and the function words “THE” and “IS” in “THE HUSTLE IS SOLD
SEPARATELY.”
The phrase “THE HUSTLE IS SOLD SEPARATELY” in Registrant’s mark is
visually and phonetically almost identical to Applicant’s entire mark, HUSTLE
SOLD SEPARATELY. “While there is no explicit rule that the marks are
automatically similar because [the cited mark] contains [the applicant’s] entire mark,
‘[l]ikelihood of confusion often has been found where the entirety of one mark is
incorporated within another.’” Double Coin Holdings Ltd. v. Tru Dev., No. 92063808,
2019 TTAB LEXIS 347, at *20 (quoting Hunter Indus., Inc. v. Toro Co., No. 91203612,
2014 TTAB LEXIS 105, at *33); see also TiVo Brands LLC v. Tivoli, LLC, No.
6 Examining Attorney’s Br., 7 TTABVUE 4-7.

Serial No. 98502058
- 10 -
91221632, 2018 TTAB LEXIS 439, at *51-52 (“Marks have frequently been found to
be similar where one mark incorporates the entirety of another mark, as is the case
here.”). “[T]he presence of an additional term in [a] mark does not necessarily
eliminate the likelihood of confusion if some terms are identical.” In re Mighty Leaf
Tea, 601 F.3d 1342, 1347-48 (Fed. Cir. 2010) (citations omitted). The addition of the
function word “THE” is of minimal importance, see Motorola, Inc. v. Griffiths Elecs.,
Inc., 317 F.2d 397, 398 (CCPA 1963) (“THE” is “of trifling importance”); In re Thor
Tech Inc., No. 78634024, 2009 TTAB LEXIS 253, at *3 (the word “the” in THE WAVE
merely emphasizes the word “wave”), and the addition of the function word “IS” in
the cited mark does not materially alter how consumers will see and hear the shared
wording HUSTLE SOLD SEPARATELY, as HUSTLE SOLD SEPARATELY is
merely a different verb tense of the phrase HUSTLE IS SOLD SEPARATELY.
Considered in their entireties, each mark contains the identical words HUSTLE
SOLD SEPARATELY, and Applicant’s mark contains no other wording.
Furthermore, the phrases “HUSTLE SOLD SEPARATELY” (Applicant’s entire
mark) and “THE HUSTLE IS SOLD SEPARATELY” (part of Registrant’s mark) are
arbitrary in relation to Applicant’s and Registrant’s respective goods and are likely
to create the same meaning and commercial impression in both marks − namely, that
“hustle” is not included for free and must be provided by the individual. See In re
Davia, 2014 TTAB LEXIS 214, at *10 (“the meaning of the word CHANTICO, to the
extent it is known to the relevant public, is also the same for both marks”). The
introductory phrase “THE DREAM IS FREE…” in Registrant’s mark serves to

Serial No. 98502058
- 11 -
introduce the shared message, without altering its essential meaning. Therefore,
although the marks are not identical, they nevertheless evoke the same connotation
and commercial impression.
Moreover, Applicant’s omission of Registrant’s initial clause produces a shortened
form that consumers could readily associate with Registrant, particularly because
Applicant’s goods (hats, hoodies, and shirts) overlap with Registrant’s goods. See
Mighty Leaf Tea, 601 F.3d at 1348.
Lastly, Applicant’s mark and the cited mark are both in standard-character
format, so we must consider that Applicant and Registrant could display their marks
in a font style, size, or color similar to the other, including that Registrant could
emphasize the phrase THE HUSTLE IS SOLD SEPARATELY, thereby heightening
the likelihood of confusion. In re Aquitaine Wine USA, LLC, No. 86928469, 2018
TTAB LEXIS 108, at *13; In re Strategic Partners, Inc., No. 77903451, 2012 TTAB
LEXIS 80, at *6-7.
Having considered the marks in their entireties, and keeping in mind that the
marks “must be considered … in light of the fallibility of memory,” St. Helena Hosp.,
774 F.3d at 751 (citation omitted), and the fact that Applicant’s and Registrant’s
goods are in-part identical, we find that Applicant’s mark and the cited mark are
similar in sight, sound, connotation, and commercial impression.
Accordingly, the first DuPont factor weighs in favor of likelihood of confusion.

Serial No. 98502058
- 12 -
C. Purchasing Conditions
We turn next to the conditions under which the goods are likely to be purchased,
e.g., whether on impulse or after careful consideration, as well as the degree, if any,
of sophistication of the consumers, the fourth DuPont factor. Purchaser sophistication
or degree of care may tend to minimize likelihood of confusion. Conversely, impulse
purchases of inexpensive goods may tend to have the opposite effect. Palm Bay, 396
F.3d at 1376.
Applicant argues that “[p]urchasers of expressive clothing—such as garments
featuring short phrases, cultural references, or motivational taglines—typically make
choices based on individual tastes, personal identity, or social messaging” and that
“[t]hese purchases are often intentional and style-driven rather than impulsive.”7
Applicant further contends that “purchasers who are knowledgeable or discerning
about the type of product or message they are buying may be less likely to be confused
by similar marks” and that “[t]his reasoning applies with particular force to
expressive fashion goods, where consumers often view the slogan as a defining
element of the product.”8 Applicant, however, failed to introduce any evidence to
support these assertions, and “argument is no substitute for evidence.” Cai, 901 F.3d
at 1371 (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir.
2005)).
7 Applicant’s Br., 4 TTABVUE 10.
8 Id.

Serial No. 98502058
- 13 -
Applicant’s application and the cited registration identify goods that are not
restricted by target market, price, or consumer sophistication. We must assume that
the types of buyers overlap to include both the sophisticated fashionista as well as
the ordinary bargain hunter. Ordinary consumers of apparel are likely to exercise
only ordinary care, and given the lack of price restrictions in the identifications, they
may even buy inexpensive items on impulse. See Recot, Inc. v. Becton, 214 F.3d 1322,
1329 (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.”).
Accordingly, the fourth DuPont factor is neutral.
D. The Strength or Weakness of the Cited Mark
Relying on Jack Wolfskin Ausrüstung Für Draußen GmbH & Co. KGAA v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 1373, (Fed. Cir. 2015), Applicant argues
that “[a]pparel is a crowded field in which common terms, slogans, and expressions
frequently appear in trademarks” and that “[t]he TTAB has acknowledged that the
mere co-existence of similar marks for similar goods is not unusual in this space,
especially where the shared terms are descriptive, diluted, or convey broad cultural
themes.”9 This argument suggests that Applicant is attacking the strength of the
cited mark by relying on the sixth DuPont factor, which considers “[t]he number and
nature of similar marks in use on similar goods[.]” See DuPont, 476 F.2d at 1361.
9 Applicant’s Br., 4 TTABVUE 9.

Serial No. 98502058
- 14 -
We agree with the Examining Attorney that “there is no evidence that the shared
terms or slogans appearing in the marks at issue are … descriptive, diluted, or []
convey any broad cultural themes” and that Applicant “has provided no evidence to
show widespread use of similar marks on similar goods.”10 Because there is no
evidence in the record of third-party use or registration of the phrase “THE DREAM
IS FREE…THE HUSTLE IS SOLD SEPARATELY” (or any component thereof), let
alone evidence of third-party use or registration of the cited mark (or any component
thereof) in connection with similar goods as are at issue here, we cannot find that the
scope of protection afforded to the cited mark is lessened. See Juice Generation, Inc.
v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir. 2015) (“Third party registrations
are relevant to prove that some segment of the [mark] has a normally understood and
well-recognized descriptive or suggestive meaning, leading to the conclusion that that
segment is relatively weak.”); Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co.,
Inc., 908 F.3d 1315, 1324 (Fed. Cir. 2018) (“[T]he controlling inquiry is the extent of
third-party marks in use on ‘similar’ goods or services.”) (citing Century 21 Real
Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992)).
Because the cited registration is “prima facie evidence of the validity of the
registered mark,” see Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), we must
assume that the mark is inherently distinctive as evidenced by its registration on the
Principal Register without a claim of acquired distinctiveness under Section 2(f) of
the Trademark Act. See New Era Cap Co., Inc. v. Pro Era, LLC, No. 91216455, 2020
10 Examining Attorney’s Br., 7 TTABVUE 6.

Serial No. 98502058
- 15 -
TTAB LEXIS 199, at *29. We therefore treat the sixth DuPont factor as neutral and
accord the cited mark “the normal scope of protection to which inherently distinctive
marks are entitled.” In re Info. Builders Inc., No. 87753964, 2020 TTAB LEXIS 20, at
*26.
II. Conclusion –Balancing the DuPont Factors
The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there is evidence and argument, “explain the results of that weighing,” and
address “the weight [we] assigned to the relevant factors.” Charger Ventures, 64 F.4th
at 1384. “No mechanical rule determines likelihood of confusion, and each case
requires weighing of the facts and circumstances of the particular mark.” Mighty Leaf
Tea, 601 F.3d. at 1346; see also Naterra Int’l, 92 F.4th at 1116-17 (“Only the DuPont
factors of significance to the particular mark need be considered in the likelihood of
confusion analysis.”).
We have carefully considered all of the evidence and arguments. The Class 25
goods of Applicant’s application and the Class 25 goods of the cited registration are
in-part identical, and the trade channels and classes of consumers for the identical
goods are presumed to be the same. Accordingly, the second and third DuPont factors
strongly weigh in favor of a likelihood of confusion for the Class 25 goods. Applicant’s
mark and the cited mark are similar in appearance, sound, meaning, and commercial
impression. The first DuPont factor therefore weighs in favor of finding a likelihood
of confusion. The fourth and sixth DuPont factors are neutral in our likelihood of
confusion analysis. No DuPont factor weighs against a finding of likelihood of

Serial No. 98502058
- 16 -
confusion. Accordingly, we conclude that confusion is likely between Applicant’s mark
for the identified goods in Class 25 and the cited mark for the in-part identical goods
in Class 25.
Decision: The Section 2(d) refusal to register is affirmed as to the goods in Class
25. The application will proceed with respect to the goods in Class 28.