Sun Tube, LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: May 22, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
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In re Sun Tube, LLC
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Serial No. 97365902
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Zachary D. Messa of Johnson Pope Bokor Ruppel & Burns, LLP,
for Sun Tube, LLC.
Jacqueline Tate-Naghi, Trademark Examining Attorney, Law Office 120,
Joshua Toy, Managing Attorney.
_____
Before Thurmon, Bradley, and Brock,
Administrative Trademark Judges.
Opinion by Brock, Administrative Trademark Judge:
Sun Tube, LLC (“Applicant”) seeks registration on the Principal Register of the
standard character mark PRO-GO for “lotion containers sold empty for domestic use,
namely bendable tubing for personal transport of such lotions” in International Class
21:1
1 Application Serial No. 97365902 was filed on April 15, 2022 based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).

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The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the standard
character mark HANDY PRO-GO, registered on the Principal Register for goods
including, inter alia, “portable plastic containers, namely, pails” in International
Class 21 (“Registrant’s Mark” or “Cited Registration”).2
Applicant appealed the final refusal to register and the appeal is fully briefed.3
We reverse.
I. Analysis
“The Trademark Act [under Section 2(d)] 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 [or] mistake, or to deceive.” In
re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). Our
determination under Section 2(d) is based on an analysis of all of the probative facts
in evidence that are relevant to the factors bearing on likelihood of confusion set forth
in In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”),
cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S. 138, 144 (2015); see also In
re Majestic Distilling Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). In considering the
2 Citations are to the downloadable .pdf versions of documents in the Trademark Status &
Document Retrieval (TSDR) database.
Registration No. 7152017 issued on August 29, 2023. The Cited Registration additionally
includes goods in Class 20, but the Examining Attorney did not cite these goods as a basis for
the refusal to register Applicant’s mark. See February 13, 2025 final Office Action, at 3-4.
3 Appeal brief, 4 TTABVUE; Examining Attorney’s brief, 6 TTABVUE; Applicant’s reply brief,
7 TTABVUE. Citations to the briefs refer to TTABVUE, the Board’s online docket system.

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evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry
mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976).
Here, we have considered these DuPont factors, as well as any other factor that is
relevant and for which there is evidence and argument of record. See In re Guild
Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019). Varying weight, however, may be
assigned to each DuPont factor depending on the evidence presented. See Citigroup
Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1355 (Fed. Cir. 2011); In re Shell Oil
Co., 992 F.2d 1204, 1206 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play
more or less weighty roles in any particular determination”). We weigh the factors
together to determine if, on balance, they indicate that confusion is likely. See, e.g.,
Charger Ventures, 64 F.4th at 1381; Majestic Distilling, 315 F.3d at 1319. Ultimately,
“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, 1199 (CCPA 1973).
Similarity or Dissimilarity of Goods
We begin by considering the second DuPont factor, because Applicant’s discussion
of the marks assumes a familiarity with the goods. Under this factor, we consider
“[t]he similarity or dissimilarity and nature of the goods or services as described in
an application or registration.” DuPont, 476 F.2d at 1361. We base our analysis on
the identifications in the application and cited registration. See In re Detroit Ath. Co.,
903 F.3d 1297, 1306 (Fed. Cir. 2018) (“The relevant inquiry in an ex parte proceeding

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focuses on the goods and services described in the application and registration,
and not on real-world conditions.”) (emphasis in italics in original changed to bold
here); Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1323 (quoting
Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990))
(“‘the question of registrability of an applicant’s mark must be decided on the basis of
the identification of goods set forth in the application’”). The goods in the application
are “lotion containers sold empty for domestic use, namely bendable tubing for
personal transport of such lotions”, and the goods in the Cited Registration are, inter
alia, “portable plastic containers, namely, pails”.
Applicant argues that the goods are dissimilar because the goods in the Cited
Registration are specifically limited to pails, which are not included in Applicant’s
limited identification.4 Applicant’s argument is unavailing, because identity is not
required to support a finding of likelihood of confusion. Coach Servs. v. Triumph
Learning LLC, 668 F.3d 1356, 1369 (Fed. Cir. 2012) (“[I]t is not necessary that the
products … be similar or even competitive to support a finding of likelihood of
confusion … if the respective products are related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source.”) (internal citations
omitted).
4 4 TTABVUE 10. Applicant also refers to the Class 20 goods in the Cited Registration,
namely, “plastic inserts for use as container liners.” Id. Because these goods did not form the
basis for the instant refusal, we do not address them; the refusal is based on the Class 21
goods in the Cited Registration. See February 13, 2025 final Office Action at 3 (“Registrant’s
mark is HANDY PRO-GO in standard characters for, in pertinent part, ‘portable plastic
containers, namely, pails’ in International Class 021.”).

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The Examining Attorney submitted evidence to show that Applicant’s goods are
related to Registrant’s in a manner likely to cause source confusion. “Evidence of
relatedness may include … advertisements showing that the relevant goods and
services are advertised together or sold by the same manufacturer or dealer …” In re
Country Oven, Inc., No. 87354443, 2019 TTAB LEXIS 381, at *5. In particular, the
Examining Attorney asserts that the nine websites in the record demonstrate that
“the same entity commonly provides both lotion containers sold empty for domestic
use, namely bendable tubing for personal transport of such lotions and portable
plastic containers, namely, pails, under the same mark.”5 See, e.g., Naterra Int’l, Inc.
v. Bensalem, 92 F.4th 1113, 1117 (Fed. Cir. 2024); Detroit Ath. Co., 903 F.3d at 1306.
We review this evidence to determine whether it shows that consumers are
accustomed to seeing both types of goods sold under a single mark.
As an initial matter, the application originally identified “lotion containers sold
empty for domestic use.” In response to the August 4, 2024 Office Action, to which the
Examining Attorney attached three websites to show that Applicant’s then-goods
were related to Registrant’s pails, Applicant amended its original identification of
goods to “lotion containers sold empty for domestic use, namely bendable tubing
for personal transport of such lotions” (emphasis added).6 Accordingly, the first
three websites discussed below do not show goods with the new limitations in
Applicant’s amended identification. The six additional websites attached to the
5 6 TTABVUE 7-8; evidence at August 4, 2024 Office Action at 7-24, and February 13, 2025
final Office Action at 7-55.
6 October 15, 2024 response to Office Action, at 5.

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February 13, 2025 final Office Action addressing Applicant’s amended goods, , reflect
the Examining Attorney’s search for “tubes.”
• Containerandpackaging.com7
This entity appears focused on containers, as indicated by its name. The
screenshots show a number of plastic pails; the lotion containers are rigid plastic
bottles, not “bendable tubing.” While this website is not probative of whether plastic
pails are sold under the same mark as Applicant’s goods as amended, it does show
lotion containers, generally, sold under the same website house mark as plastic pails.
• Uline.com8
The screenshots of this website include a number of plastic pails; again, the lotion
containers are rigid bottles, not “bendable tubing.” Additionally, these bottles are
identified as “Boston Round Pump Bottles,” so even if these goods are comparable to
Applicant’s, they appear to be of a specific type of container. Accordingly, this website
is not probative of whether goods like Applicant’s and Registrant’s are offered under
the same mark.
• Packagingcentre.co.za9
This website uses the .co.za country code, designating a website in South Africa.
The website is in English, but pricing is not in U.S. dollars. See In re Well Living Lab
Inc., No. 86440401, 2017 TTAB LEXIS 156, at *12 n.10 (“We evaluate the probative
7 August 4, 2024 Office Action, at 7-14.
8 Id. at 15-18.
9 Id. at 19-24.

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value of foreign information sources on a case-by-case basis. … Various factors may
inform the probative value of a foreign website in any given case, such as whether
the website is in English (or has an optional English language version), and whether
the nature of the goods or services makes it more or less likely that U.S. consumers
will encounter foreign websites in the field in question.”). We accord this website no
probative weight as there is no explanation in the record why U.S. consumers would
purchase these goods from South Africa, and in South African rand rather than the
U.S. dollar.
• Kaufmancontainer.com10
This is the first website attached to the final Office Action, so the Examining
Attorney would have been able to provide evidence in response to Applicant’s
amended identification of goods for the first time. Like some of the other websites,
this entity is focused on “stock and custom packaging components.” The website
shows several plastic pails; a keyword search for “tube” displays a rigid, plastic lotion
tube as well as soft, plastic squeeze bottles (identified variously as “airless pump
tubes,” “plastic tubes,” PCR tubes,” etc.), including travel sizes. Insofar as these soft
plastic bottles are described as tubes, we find this probative of whether soft tubes or
bottles for lotion are related to plastic pails.
10 February 13, 2025 final Office Action, at 7-12.

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• Wholesalesuppliesplus.com11
This entity appears focused on soap and candle making supplies, as evidenced by
the product categories. The evidence shows a small (12 ounce) plastic “tub” without a
handle (i.e., not a “pail”); the list of “tubes” includes this statement: “This guide
focuses on two popular types of containers: lip balm tubes and deodorant tube
containers.” The displayed tubes are sold under various marks including Crafter’s
Choice, Elements Bath & Body, and Rustic Escentuals. This website is not probative
of whether goods like Applicant’s and Registrant’s are offered under the same mark.
• Usplastic.com12
As indicated by the product categories displayed on the website, this entity offers
a range of plastic products: bottles, buckets, containers, drums, fitting, labware,
“sheets,” tanks, and tubing. The website shows a number of plastic pails; the “tottles
and tubes” category includes lip balm tubes as well as soft, plastic lotion bottles
described as “Malibu tubes,” “tottle bottles,” and “MDPE & LDPE open end lotion
tubes.” Insofar as these soft plastic bottles are described as tubes, we find this website
probative of whether soft tubes or bottles for lotion are related to plastic pails.
• Opentip.com13
The evidence shows a number of plastic pails sold under various trademarks,
including Shurhold, Basco, and Vestil; the lotion containers (apparently in response
11 Id. at 13-21.
12 Id. at 22-27.
13 Id. at 28-37.

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to a key word search for “cosmetic tube”) include soft, plastic lotion tubes or bottles
also sold under various trademarks including Muka and Aspire. This website is not
probative of whether goods like Applicant’s and Registrant’s are offered under the
same mark.
• Berlinpackaging.com14
The evidence shows a number of plastic pails; the category “sunscreen & lotion
tubes” includes soft, plastic lotion bottles or tubes. Insofar as these soft plastic bottles
are described as tubes, we find this website probative of whether soft tubes or bottles
for lotion are related to plastic pails.
• Foamy.co.za15
This is another website designating South Africa. As with the other South Africa
website, we accord this website no probative weight;; the website is in English, but
pricing is not in U.S. dollars. See In re Well Living Lab, 2017 TTAB LEXIS 156, at
*12 n.10.
Applicant discounts the probative value of the websites, asserting that none of
them offer “any wearable bendable tubing like Applicant’s goods as advertised and
promoted on Applicant’s website.”16 We are not persuaded by this argument. First,
Applicant’s goods are not limited to “wearable” tubing; that limitation is not part of
the identification, and we do not read limitations into Applicant’s identification based
14 Id. at 38-44.
15 Id. at 45-55.
16 4 TTABVUE 11.

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on its website. See Detroit Ath. Co., 903 F.3d at 1306. However, we do consider
Applicant’s limiting language of “bendable tubing for personal transport of such
lotions,” in our comparison of the goods. Second, some of the travel containers for
lotion shown in the evidence are made of “bendable tubing.” That is, some of the lotion
containers appear to be made of flexible, plastic tubing that is crimped closed at one
end and capped at the other; a tube that can be squeezed empty is bendable. In this
manner, Applicant’s limitation can still describe some of the travel lotion containers
sold under the same marks as plastic pails.
In sum, we find that four websites (i.e., containerandpackaging.com,
kaufmancontainer.com, usplastic.com, and berlinpackaging.com) show that the
broader category of lotion containers may be sold under the same website house mark
as plastic pails, but also sometimes not, and of these four websites that offer both
types of goods, only the latter three include tube containers that might be considered
“bendable” like Applicant’s.17 Given the potential differences in the lotion container
products and Applicant’s own identification (and the lack of evidence that such
differences are not consequential), as well as the limited number of entities offering
both types of goods, we are not persuaded that the goods are sufficiently related such
that confusion is likely. Cf. Country Oven, Inc., 2019 TTAB LEXIS 381, at *7 (initial
finding that retail bakery services are related to bread buns on the face of the
17 The evidence does not show (nor does the Examining Attorney explain) that these soft,
plastic lotion bottles used in this comparison are effectively the same as Applicant’s specific
type of lotion container, namely, “lotion containers sold empty for domestic use, namely
bendable tubing for personal transport of such lotions.”

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identifications bolstered by 10 use-based registrations including the same); see also,
In re Davia, No. 85497617, 2014 TTAB LEXIS 214, at *25 (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 second DuPont factor weighs against a finding that confusion is likely.
Similarity or Dissimilarity of Trade Channels, and Classes of
Consumers
Under the third and fourth DuPont factors we consider, respectively, “the
similarity or dissimilarity of established, likely-to-continue trade channels” and “the
conditions under which and buyers to whom sales are made.” DuPont, 476 F.2d at
1361; Detroit Ath. Co., 903 F.3d at 1306, 1308; Sabhnani v. Mirage Brands, LLC, No.
92068086, 2021 TTAB LEXIS 464, at *20. The Examining Attorney argues that
because the goods are closely related, so too are the channels of trade and classes of
purchasers.18 In addition, as the Cited Registration does not contain any restrictions
as to channels of trade and classes of purchasers, we must presume the goods travel
in all the usual channels of trade and to all the normal classes of purchasers for such
goods. See, e.g., Detroit Ath., 903 F.3d at 1308 (“The registration contains no
restrictions on the channels of trade or classes of customers. As a result, the Detroit
Athletic Club’s clothing is presumed to be sold in all normal trade channels to all the
normal classes of purchasers.”) (citation omitted).
18 6 TTABVUE 3.

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Considering that the goods at issue are still lotion containers for domestic or
personal use – despite the very specific limiting language that follows – they could
still be offered for sale in the same types of online stores that sell many types of
product packaging. That is, the Examining Attorney’s evidence instead tends to
indicate that these products share the same channels of trade; some online retailers
of packaging components and containers sell both plastic pails and lotion containers
similar to Applicant’s, direct to consumers.19 Both types of goods flow through at least
this common trade channel.
Applicant disputes this fact, asserting that “Registrant’s specimen and its website
show[] that the Registered Mark’s goods are for professionals, such as professional
painters.”20 This may be true, but as previously discussed in the context of Applicant’s
goods and its website, we cannot read limitations into the goods of the Cited
Registration, its trade channels, or classes of purchasers. See id.
On this record, we find that there is overlap in the trade channels and classes of
customers; these factors weigh in favor of a finding of likely confusion.
Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider the “similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.” DuPont, 476 F.2d at 1361; see also Stone Lion, 746 F.3d at 1319.
19 We find the analysis slightly different when considering whether products are related vs.
whether they travel in overlapping trade channels and sales conditions, such as direct-to-
consumer channels and purchases for domestic use.
20 4 TTABVUE 6.

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“Similarity is not a binary factor but is a matter of degree.” Monster Energy Co. v.
Chun Hua Lo, No. 91225050, 2023 TTAB LEXIS 14, at *44 (quoting In re St. Helena
Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014). “The proper test is not a side-by-side
comparison of the marks, but instead whether the marks are sufficiently similar in
terms of their commercial impression such that persons who encounter the marks
would be likely to assume a connection between the parties.” In re i.am.symbolic, 866
F.3d 1315, 1324 (Fed. Cir. 2017) (quoting Coach Servs., 668 F.3d at 1368. And “[t]he
focus is on the recollection of the average purchaser, who normally retains a general
rather than a specific impression of trademarks.” In re Box Sols. Corp., No. 76267086,
2006 TTAB LEXIS 176, at *14.
Applicant’s mark is PRO-GO and the Cited Mark is HANDY PRO-GO. Both marks
share the identical PRO-GO component, including the hyphen, while Registrant’s
Mark contains the additional, leading term HANDY. The marks are therefore similar
in appearance and sound, to an extent, and the entirety of Applicant’s PRO-GO mark
is identical to the PRO-GO component of Registrant’s mark. “Marks have frequently
been found to be similar where one mark incorporates the entirety of another mark,
as is the case here.” TiVo Brands LLC v. Tivoli, LLC, No. 91221632, 2018 TTAB
LEXIS 439, at *51-52.
Applicant disagrees, asserting that “the presence of the first and dominant term
‘HANDY’ in the Registered Mark significantly alters the mark’s connotation when
compared to Applicant’s Mark”21 and “the difference in the dominant first terms of
21 4 TTABVUE 6.

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each of the Marks accompanied by the difference in appearance, sound, pronunciation
and connotation supports the conclusion that each of the Marks have distinct and
different commercial impression.”22 HANDY in the Cited Mark, Applicant argues,
“evokes the impression of someone who is skilled craftsman, such as a painter, or in
the alternative, a good which aids the skilled craftsman in his job,” and this
“connotation is further supported by the use of ‘PRO’ which is a reference to
professional.”23
Applicant presents interesting arguments distinguishing In re Mighty Leaf Tea,
601 F.3d 1342 (Fed. Cir. 2010) (ML in standard characters was likely to cause
confusion with the registered ML MARK LEES stylized mark), and likening its
application to In re Griffith Labs. Int’l, Inc., No. 78290739, 2006 TTAB LEXIS 89
(non-precedential). Non-precedential decisions are not binding on the Board, but may
be relied upon for whatever persuasive value they may have. In re Fiat Grp. Mktg. &
Corp. Commc’ns. S.p.A., No. 79099154, 2014 TTAB LEXIS 29, at *10 n.6.
We disagree with Applicant’s assertion that the term HANDY in the Cited Mark
is necessarily dominant and therefore “each of the Marks have distinct and different
commercial impression[s].”24 But we are also not persuaded by the Examining
Attorney’s argument that “applicant’s mark is likely to appear to prospective
purchasers as a shortened form of registrant’s mark.”25 Indeed, Applicant’s argument
22 Id. at 8.
23 Id.
24 Id.
25 6 TTABVUE 4-5.

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that HANDY reinforces the meaning of PRO tends to suggest that consumers might
not shorten the Cited Mark in this manner. While we agree that the PRO-GO portion
of both marks appear the same, we are not convinced that HANDY PRO-GO and
PRO-GO have similar meanings and create similar commercial impressions when
considered in relation to Applicant’s and the Cited Registration’s goods.
The shared PRO-GO component of the marks could indicate a shortened form of
“professional” or the positive aspect of the phrase “pros and cons” combined with “go”
or a shortened form of “on the go.” PRO-GO connotes a portable, professional good; a
portable good for a professional; or perhaps just something positive and portable.
When viewed in connection with the goods in the Cited Registration, i.e., plastic pails,
we agree with Applicant’s assessment that this might suggest professional painters’
buckets,26 and the HANDY component reinforces this, as in a handyman. As applied
to Applicant’s goods, however, some of these meanings may change. Here, PRO-GO
for travel lotion containers certainly leans on the “go” aspect of travel and portability,
but the other meanings of PRO do not carryover as well; travel lotion containers for
personal use do not so clearly suggest a professional use in the same manner as a
plastic pail.
Therefore, despite some similarities in the appearance, sound, and meaning of
PRO-GO and HANDY PRO-GO, when used in connection with their respective goods,
the marks create different commercial impressions. Overall, we do not find the find
26 4 TTABVUE 8.

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the marks sufficiently similar, which weighs against a conclusion that confusion is
likely.
Conclusion: Balancing of the DuPont Factors
Having made our findings on the relevant likelihood of confusion factors, our final
step is to assess these findings to determine if, on balance, confusion is likely. See,
e.g., Charger Ventures, 64 F.4th at 1384. We did not find the marks similar or the
goods related. We did find overlap in the trade channels and classes of customers.
Given that “[t]he fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks,” Federated Foods, 544 F.2d at 1103, the first and second DuPont factors are
determinative. The balance tips in favor of a conclusion that confusion is not likely.
Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is reversed.