AM Hospitality, LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: June 30, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re AM Hospitality, LLC
_____
Serial No. 98891881
_____
W. West Allen and Daniel H. Bliss of Howard & Howard Attorneys PLLC,
for AM Hospitality, LLC.
Marco Wright, Trademark Examining Attorney, Law Office 120,
Joshua Toy, Managing Attorney.
_____
Before Goodman, Casagrande, and Brock,
Administrative Trademark Judges.
Opinion by Brock, Administrative Trademark Judge:
Applicant AM Hospitality, LLC seeks registration on the Principal Register of the
mark SIDE PIECE PIZZA (in standard characters; PIZZA disclaimed) for “restaurant
featuring pizza” in International Class 43.1
1 Application Serial No. 98891881 was filed on December 9, 2024, under Section 1(a) of the
Trademark Act, 15 U.S.C. §1051(a), alleging May 21, 2021 as the date of first use anywhere
and in commerce. Citations are to the downloadable .pdf versions of documents in the
Trademark Status & Document Retrieval (TSDR) database.

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The Examining Attorney refused registration of Applicant’s mark under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), based on a likelihood of confusion with
(1) the mark SIDE PIECE, registered on the Principal Register for “Food and drink
catering; Preparation of food and beverages; Providing of food and drink; Restaurant
services, namely, providing of food and beverages for consumption on and off the
premises; all of the foregoing excluding services involving pizza, private labeled beer,
and/or breweries” in International Class 43,2 and (2) the mark shown below,
registered on the Principal Register for the same services.
3
Applicant appealed the final refusal to register and the appeal is fully briefed.4
We have reviewed and considered all of the arguments in the briefs and evidence of
record, but we may not address them all in this opinion.
2 Registration No. 7716009 issued on March 4, 2025.
3 Registration No. 7716068 issued on March 4, 2025. The mark is described as follows: The
mark consists of a stylized full profile of a female chicken with long eyelashes and one foot
raised and crossed with the other foot with the stylized words “SIDE PIECE” above the image
of the chicken.
4 Appeal Brief, 6 TTABVUE; Examiner’s Brief, 8 TTABVUE; Reply Brief, 9 TTABVUE.
Citations to the briefs refer to TTABVUE, the Board’s online docket system.

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For the reasons explained below, we affirm the refusal to register.
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
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 relevant

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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).
We will focus our analysis under Section 2(d) on the cited ’009 Registration for the
standard-character mark SIDE PIECE. While both cited registrations identify the
same services (“Food and drink catering; Preparation of food and beverages;
Providing of food and drink; Restaurant services, namely, providing of food and
beverages for consumption on and off the premises; all of the foregoing excluding
services involving pizza, private labeled beer, and/or breweries”), the mark in the
cited ’009 Registration more similar to Applicant’s mark. If we find a likelihood of
confusion as to that mark and the services for which it is registered, we need not find
a likelihood of confusion as to the mark shown in the cited ’068 Registration. In re
Max Cap. Grp. Ltd., No. 77186166, 2010 TTAB LEXIS 1, at *4-5.
Comparison 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 Cap. Partners, L.P. v. Lion
Cap. LLP, 746 F.3d 1317, 1319 (Fed. Cir. 2014). “Similarity is not a binary factor but
is a matter of degree.” Monster Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS
14, at *44 (quoting In re St. Helena Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (internal
quotation omitted)). Also:

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it is well established that the test to be applied in
determining likelihood of confusion is not whether marks
are distinguishable on the basis of a side-by-side
comparison but rather whether they so resemble one
another as to be likely to cause confusion, and this
necessarily requires us to consider the fallibility of memory
over a period of time. That is to say, the emphasis must be
on the recollection of the average purchaser, who normally
retains a general rather than a specific impression of
trademarks.
Sealed Air Corp. v. Scott Paper Co., No. 72391022, 1975 TTAB LEXIS 236, at *6.
The cited mark is SIDE PIECE and Applicant’s mark is SIDE PIECE PIZZA
(PIZZA disclaimed). The marks must be considered in their entireties, but “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.” In re Detroit Ath. Co., 903 F.3d 1297,
1306, 1305 (Fed. Cir. 2018) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed.
Cir. 1985)). We find that SIDE PIECE in Applicant’s mark is dominant because
Applicant disclaimed the term PIZZA, which is merely descriptive or even generic for
Applicant’s “restaurant featuring pizza” services. See In re Dixie Rests. Inc., 105 F.3d
1405, 1407 (Fed. Cir. 1997) (Board properly found that DELTA was dominant in THE
DELTA CAFE and design, which disclaimed the generic word CAFE); In re Binion,
No. 76590702, 2009 TTAB LEXIS 701, at *7-8 (concluding that confusion was likely
between BINION’S for “hotel and bar services” and BINION'S ROADHOUSE for
“restaurant services” where descriptive word ROADHOUSE received less weight
than BINION’S when comparing the marks as a whole).

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In addition, the two words SIDE PIECE are the first two words of Applicant’s
mark. “The identity of the marks’ initial two words is particularly significant because
consumers typically notice those words first.” Detroit Ath. Co., 903 F.3d at 1303
(citations omitted); see also Century 21 Real Estate Corp. v. Century Life of Am., 970
F.2d 874, 876 (Fed. Cir. 1992) (Board correctly found that “Century” is the “dominant
element of CENTURY LIFE OF AMERICA due to applicant’s disclaimer of the rest
of its mark” and because “upon encountering each mark, consumers must first notice
this identical lead word”).
Applicant argues that SIDE PIECE is not dominant in its mark for various
reasons; these arguments are unavailing. Applicant asserts that “[a]lthough
Applicant has disclaimed the wording ‘PIZZA’, Applicant does not concede that this
term is merely descriptive or generic.”5 This is incorrect; a disclaimer constitutes a
concession that the term is, at a minimum, merely descriptive of the identified
restaurant services. See In re Zuma Array Ltd., No. 79288888, 2022 TTAB LEXIS
281, at *15 (disclaimer of the term “smart” is a concession that the term is merely
descriptive of the identified goods); In re Pollio Dairy Prods. Corp., No. 5965778, 1988
TTAB LEXIS 45, at *3 n.4 (“By its disclaimer of the word LITE, applicant has
conceded that the term is merely descriptive as used in connection with applicant’s
goods.”) (citing State Oil Refining Corp. v. Quaker Oil Corp., 1969 TTAB LEXIS 48,
at *7, aff’d, 453 F.2d 1296 (CCPA 1972)).
5 6 TTABVUE 9.

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Applicant’s similar statement that “the additional wording ‘PIZZA’ is not
conceptually weaker than the shared wording ‘SIDE PIECE’”6 is inapposite to both
its concession in the disclaimer and the appearance of the term PIZZA in both the
mark and the recitation of services, indicating that the term is descriptive of its
services. See Monster Energy Co. v. Lo, 2023 TTAB LEXIS 14, at *47 (appearance of
term “ICE” in recitation of services indicates that “ICE” in the mark is descriptive);
In re Taylor & Francis (Publ’rs), Inc., 2000 TTAB LEXIS 380, at *5 (use of word
“psychology” in identification demonstrates that the word in the composite mark is
descriptive).
Next, we note that Applicant’s mark incorporates the cited mark in its entirety.
“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; see also In re Mighty Leaf Tea, 601 F.3d
1342, 1347-48 (Fed. Cir. 2010) (finding ML similar to ML MARK LEES (stylized));
Coca-Cola Bottling Co. of Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons,
Inc., 526 F.2d 556, 557 (CCPA 1975) (finding BENGAL similar to BENGAL LANCER
& Design); In re Integrated Embedded, No. 86140341, 2016 TTAB LEXIS 470, at *31
(“[L]ikelihood of confusion is often found where the entirety of one mark is
incorporated within another”) (finding BARR and BARR GROUP similar). Here, it is
the dominant portion of Applicant’s mark that incorporates the entirety of – and is
thus identical to – the cited mark.
6 Id.

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Visually, the marks both begin with the same two words, SIDE PIECE, then
Applicant’s mark differs by adding the descriptive term PIZZA at the end. The test is
not whether the marks can be distinguished when subjected to a side-by-side
comparison, however, but whether the marks are sufficiently similar in terms of their
overall commercial impression so that confusion as to the source of the services
offered under the respective marks is likely to result. Sealed Air, 1975 TTAB LEXIS
236, at *6. Both marks are in standard characters, meaning that they may be used in
the same size, color or stylized font. In re Viterra, Inc., 671 F.3d 1358, 1364-65 (Fed.
Cir. 2012) (a standard character mark may be depicted in any font style, size, or color,
and not merely “reasonable manners” of depicting such mark). Although Applicant
argues that “Applicant’s mark has more letters and words and is completely different
in appearance from the ‘009 mark,”7 a difference in the number of words does not
serve to distinguish marks with so many points of similarity. In re Sela Prods., LLC,
No. 77629624, 2013 TTAB LEXIS, at *12-13; see Bureau Nat’l Interprofessionnel du
Cognac v. Cologne & Cognac Ent., 110 F.4th 1356, 1369-70 (Fed. Cir. 2024) (proper
to give more weight to dominant feature). Here, the first, dominant part of Applicant’s
mark, SIDE PIECE, is visually identical to the entirety of the cited ’009 Registration.
We find the marks similar in appearance.
In a comparison of the sound of the marks, the potential for confusion continues,
and may even increase. When speaking, consumers often shorten marks; here,
consumers may shorten Applicant’s SIDE PIECE PIZZA for a “restaurant featuring
7 6 TTABVUE 7.

Serial No. 98891881
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pizza” and omit the descriptive or generic word PIZZA (rather than saying “SIDE
PIECE PIZZA pizza restaurant,” for example). See, e.g., Sabhnani v. Mirage Brands,
LLC, No. 92068086, 2021 TTAB LEXIS 464, at *45 (the “similarity in sound will be
greater if consumers engage in ‘the penchant of consumers to shorten marks”)
(quoting In re Bay State Brewing Co., No. 85826258, 2016 TTAB LEXIS 46, at *9); In
re Abcor Dev. Corp., 588 F.2d 811, 815 (CCPA 1978) (Rich, J., concurring)
(acknowledging that generally, “users of language have a universal habit of
shortening full names from haste or laziness or just economy of words”); Big M. Inc.
v. United States Shoe Co., No. No. 94000556, 1985 TTAB LEXIS 8, at *10-11 (“[W]e
cannot ignore the propensity of consumers to often shorten trademarks[.]”). Dropping
PIZZA from Applicant’s mark when referring to a pizza restaurant would further
emphasize the portion of Applicant’s mark, SIDE PIECE, that comprises the entirety
of the cited mark.
On the other hand, even if consumers recognize the differences in the marks, i.e.,
the additional term PIZZA, those consumers familiar with the SIDE PIECE mark of
the cited ’009 Registration for, inter alia, “restaurant services,” may perceive
Applicant’s SIDE PIECE PIZZA mark for a “restaurant featuring pizza” as an
extension of Registrant’s services under an extended version of Registrant’s mark.
See, e.g., Schieffelin & Co. v. Molson Cos., No. 91069312, 1989 TTAB LEXIS 1, at *12
(“Those consumers who do recognize the differences in the marks may believe that
applicant’s mark is a variation of opposer’s mark that opposer has adopted for use on
a different product.”). The marks are thus, at minimum, similar in sound.

Serial No. 98891881
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Last, we consider the meaning and commercial impression of the marks. Applicant
asserts that its mark creates the impression of “a piece forming or contained in the
side of a pizza” while “[t]he commercial impression of the ’009 mark SIDE PIECE is
a piece forming or contained in the side of something.”8 We do not follow Applicant’s
reasoning, but as applied to restaurants, PIECE may refer to a portion of food; in the
context of Applicant’s restaurants featuring pizza, this would be a PIECE or slice of
pizza, and in Registrant’s restaurants excluding pizza, a PIECE would be any type of
portioned food it serves. The term PIECE thus conveys a similar meaning, i.e., a piece
of food, in both marks. Similarly, the term SIDE in the context of restaurant services
(for pizza or not) can also refer to a portion of food, served on the side of a main dish.9
We see no evidence of record indicating that consumers would perceive “SIDE PIECE”
differently depending on whether a restaurant does or does not serve pizza. The
dominant portion of Applicant’s mark and the cited mark share the same meaning
and overall commercial impression. Considering Applicant’s mark in its entirety, this
shared meaning and commercial impression does not change with the addition of the
term PIZZA. The marks for restaurant services thus share similar meanings and
overall commercial impressions.
Despite some minor visual dissimilarities, we find the marks similar in sound,
meaning, and overall commercial impression. “Similarity in any one of these elements
8 6 TTABVUE 8 (cleaned up).
9 Although not part of the record, to the extent that “side piece” as a phrase has a colloquial
meaning, that meaning would apply to Applicant’s SIDE PIECE PIZZA mark as well as the
SIDE PIECE mark of the cited ’009 Registration, adding another point of similarity.

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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 (citing In re Davia, No. 85497617, 2014
TTAB LEXIS 214, at *4), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019). The first
DuPont factor weighs in favor of a finding of likely confusion.
Comparison of the Services
Under the second DuPont 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 Detroit Ath. Co., 903 F.3d at 1306 (“The relevant inquiry in an
ex parte proceeding 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)); Stone Lion, 746 F.3d at 1323 (“‘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’”) (quoting Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918
F.2d 937, 942 (Fed. Cir. 1990)).
First, we note the obvious: Applicant’s mark and the ’009 Registration both
identify restaurant services. That is an inherent relationship between the respective
services.
Applicant makes much of the fact that its services, “restaurant featuring pizza,”
appear to be specifically excluded from the services recited in the cited ’009
Registration, namely, “Food and drink catering; Preparation of food and beverages;
Providing of food and drink; Restaurant services, namely, providing of food and

Serial No. 98891881
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beverages for consumption on and off the premises; all of the foregoing excluding
services involving pizza, private labeled beer, and/or breweries.”10 (emphasis
added). The Examining Attorney argues that even if pizza services are excluded from
the services in the cited ’009 Registration (so that the respective identifications are
not identical), the “restaurant services” excluding those services are still related to
Applicant’s pizza restaurant services.
“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. The
Examining Attorney points to several examples in the record of affiliated restaurants
operating both pizza restaurants and non-pizza restaurants under similar marks.11
While we usually look to evidence of sales under the same mark, id., the Examining
Attorney’s evidence is calibrated to the situation here, in which the marks are
distinguished only by a food-related or descriptive term, and the services are
differentiated only by the availability or absence/lack of emphasis of a food item. This
record includes evidence of one entity operating both:
• PIZZERIA MOZZA (pizza restaurant) and OSTERIA MOZZA (restaurant),
listing the same owner;12
• GIADA (restaurant featuring pizza) and PRONTO BY GIADA (restaurant),
both located at Caesar’s Palace;13
10 6 TTABVUE 10-12.
11 8 TTABVUE 6-7.
12 July 14, 2025 Final Office Action, 7-10, 29-32.
13 Id. at 21-28.

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• DUKE’S SLICEHOUSE (pizza restaurant) and DUKE’S BBQ (restaurant),
describing same owner;14
• GUY FIERI’S PIZZA PARLOR (pizza restaurant) and GUY FIERI’S
AMERICAN KITCHEN & BAR (restaurant), with same website,
guyfieri.com;15 and
• GORDON RAMSAY STREET PIZZA (pizza restaurant) and GORDON
RAMSAY FISH & CHIPS (restaurant), with same website,
gordonramsayrestaurants.com.16
Taken a whole, this evidence shows that it is common for restaurant groups to use
versions of a mark to offer pizza restaurants alongside restaurants offering different
fare; consumers have been taught to expect the restaurants with similar marks to be
related and the differences in the marks point to the different menus. Here, even if
consumers were aware that the cited ’009 Registration specifically excluded pizza
from its SIDE PIECE restaurant services, they could thus still believe that SIDE
PIECE PIZZA is an expansion of Registrant’s service offerings, through which
Registrant offers the pizza excluded from its regular, SIDE PIECE restaurant menu.
See, e.g., Schieffelin, 1989 TTAB LEXIS 1, at *12 (“Those consumers who do recognize
the differences in the marks may believe that applicant’s mark is a variation of
opposer’s mark that opposer has adopted for use on a different product.”).17
We find that the services are related, which weighs in favor of a finding of likely
confusion.
14 Id. at 33-44.
15 Id. at 45-46, 51-52.
16 Id. at 47-50.
17 And practically speaking, consumers would not know whether the SIDE PIECE restaurant
served pizza without viewing the menu (after being exposed to the mark).

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Trade Channels and Classes of Purchasers
Under the third DuPont factor we consider “the similarity or dissimilarity of
established, likely-to-continue trade channels.” 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 Application and cited ’009 Registration both
contain limitations to what foods are encompassed by the respective restaurant
services.
Applicant insists that its “restaurant featuring pizza do [sic] not travel through
the same trade channels to the same classes of consumers as registrant” because
“Applicant’s trade channel is in the form of marketing to pizza consumers in the
general public” while “Registrant’s trade channel is in the form of marketing of
restaurant services providing food and beverages excluding services involving pizza
to the general public such as chicken, fish, tacos, and burgers as shown by the
specimen of use submitted previously into evidence and the registrant’s website
submitted previously into evidence.”18 We disagree; these are specific food items to be
served by the restaurants, not trade channels. Applicant’s services are focused on
restaurants featuring pizza, while Registrant’s services exclude pizza; these are
limitations to the services themselves, not particular classes of purchasers or specific
trade channels, and thus are available to members of the general public.
This factor weighs in favor of a finding of a likelihood of confusion.
18 6 TTABVUE 12-13.

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Purchasing Conditions and Buyer Sophistication
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361. Applicant argues, without pointing to any evidence, that
“[t]he purchasers in the food and drink and restaurant industries are careful,
sophisticated purchasers of the goods/services.”19 First, attorney argument is not
evidence. See, e.g., Estée Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir.
1997); In re Teledyne Indus., Inc., 696 F.2d 968, 971 (Fed. Cir. 1982). Second, as we
discussed above, while the services in the cited registration are limited to specific food
items offered (or rather, excluded) from its restaurant services and Applicant’s
services are focused on restaurants featuring pizza, these are limitations to the
services themselves, not particular classes of purchasers or specific trade channels,
and thus are available to members of the general public. Last, we presume that the
19 6 TTABVUE 13. The only evidence of record is in the October 14, 2025 Request for
Reconsideration After Final Action. Applicant attached two exhibits to that filing, id. at 5-
10, describing Exhibit 1 as Registrant’s specimen of use and Exhibit 2 as Registrant’s website
(the two cited registrations are owned in common). As to the specimens, Applicant only
submitted one specimen of use and did not indicate which of the cited registrations it
supported, or if the same specimen of use was submitted in both of the cited registrations. As
for the website, Applicant did not include the full URL and access date. Regardless,
Registrant’s specimen shows that its menu items range in price from $5 to $20. Id. at 8.
Applicant’s own specimen of use does not show its entire menu with visible prices, but the
advertised “specials” include a 15-inch cheese pizza for $15. December 9, 2024 Application,
at 9-10 (specimen). Meals under or around $20 – as they appear to be for both Registrant and
Applicant – may even be low-cost items subject to impulse purchasing. See Recot Inc. v. M.C.
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, while we do
not rely on this evidence due to the noted deficiencies, if we did, this factor would weigh in
favor of a likelihood of confusion, rather than being neutral.

Serial No. 98891881
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standard of care for purchasing the services is that of the least sophisticated potential
purchaser. See Stone Lion, 746 F.3d at 1325. The least sophisticated purchaser of
restaurant services is a member of the general public who may exercise less caution
when making purchases, and we have no evidence showing otherwise. The fourth
DuPont factor is neutral.
Fame of Cited Mark
Next, Applicant argues “[t]here is no fame associated with the ‘009 mark … [with]
a date of first use of February 2022 and … registered on March 4, 2025. Applicant
has a date of first use of May 21, 2021. Thus, the length of use of Applicant’s mark
SIDE PIECE PIZZA has been longer than the length of use of the prior ‘009 mark.”20
“Two of the DuPont factors (the fifth and sixth) consider strength.” Spireon, Inc. v.
Flex LTD, 71 F.4th 1355, 1362 (Fed. Cir. 2023).
The fifth DuPont factor considering the “fame” of the cited mark generally is
considered neutral in ex parte appeals because the owner of the cited mark is not a
party to the appeal, and the Examining Attorney is under no obligation to
demonstrate the fame of a cited mark. In re Integrated Embedded, No. 86140341,
2016 TTAB LEXIS 470, at *26. This is true here, and this factor is neutral.
The sixth DuPont factor “allows Applicant to contract [the] scope of protection by
adducing evidence of “[t]he number and nature of similar marks in use on similar
goods [or services].” Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022
TTAB LEXIS 251, at *24 (quoting DuPont, 476 F.2d at 1361). When evaluating the
20 6 TTABVUE 14-15.

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strength or weakness of a mark under this factor, we look at the mark’s inherent
conceptual strength based on the nature of the term itself and its commercial strength
in the marketplace. See Spireon, 71 F.4th at 1362 (“There are two prongs of analysis
for a mark’s strength under the sixth factor: conceptual strength and commercial
strength.”); In re Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010)
(measuring both conceptual and marketplace strength); Made in Nature, 2022 TTAB
LEXIS 228, at *24.
As to the conceptual strength of the cited mark, because it issued on the Principal
Register without a claim of acquired distinctiveness, the mark is presumed to be
inherently distinctive for the services listed in the cited registration. Trademark Act
Section 7(b), 15 U.S.C. §1057(b); Brooklyn Brewery Corp. v. Brooklyn Brew Shop,
LLC, 17 F.4th 129, 147 n.7 (Fed. Cir. 2021) (noting the presumption that a registered
mark is distinctive). As to the commercial strength of the cited mark, Applicant has
not made any arguments nor submitted any evidence of third-party marketplace uses
of marks identical or similar to the cited SIDE PIECE mark. Insofar as Applicant
asserts the commercial strength of its own mark, these arguments are likewise
unsupported by the record. The sixth DuPont factor is also neutral.
Actual Confusion
The seventh and eighth DuPont factors consider the nature and extent of any
actual confusion and the extent of the opportunity for actual confusion.” DuPont, 476
F.2d at 1361. Applicant argues that there have been “almost four years without

Serial No. 98891881
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evidence of actual confusion.”21 Attorney argument is not evidence. See, e.g., Estée
Lauder, 129 F.3d at 595; Teledyne, 696 F.2d at 971. These DuPont factors are neutral.
II. Conclusion: Balancing of the DuPont Factors
The marks are similar, the services are related, and the trade channels overlap;
DuPont factors one, two, and three weigh in favor of a likelihood of confusion. There
was no showing that purchasers are sophisticated or that the purchases are subject
to a heightened standard of care, so the fourth DuPont factor is neutral. The cited
mark was not shown to have any conceptual (or commercial) weakness (or fame), so
the sixth and fifth DuPont factors, respectively, are neutral. The seventh and eighth
DuPont factors relating to actual confusion are also neutral. Balancing these factors,
with all factors either weighing in favor of a likelihood of confusion or neutral and no
factors weighing against, Applicant’s mark is likely to cause confusion with the cited
mark in Registration No. 7716009.
Having concluded that there is a likelihood of confusion as to the mark in the cited
’009 registration, we need not reach Registration No. 7716068. See, e.g., Max Cap.,
2010 TTAB LEXIS 1, at *4-5.
Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.
21 6 TTABVUE 14.