CAR-X, LLC

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: February 27, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re CAR-X, LLC
Serial No. 97673027
_____
Janet Garetto, Jennette W. Psihoules, and Natalie Northup of Nixon Peabody LLP,
for CAR-X, LLC.
Kennina Ip, Examining Attorney, Law Office 121,
Richard White, Managing Attorney.
_____
Before Pologeorgis, Lebow and Cohen,
Administrative Trademark Judges.
Opinion by Cohen, Administrative Trademark Judge:
Applicant CAR-X, LLC seeks registration on the Principal Register of the mark
(TIRE & AUTO disclaimed) for “automotive services comprising
installation and repair of automotive exhaust systems, brakes and shock absorbers,”
in International Class 37.1
1 Application Serial No. 97673027 (the “Application”) was filed on November 11, 2022, under
Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on an allegation of use
anywhere and in commerce of March 30, 2008. The mark consists of the wording “CARX TIRE
& AUTO” in black inside a yellow rectangle with rounded corners bordered in black. The

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The Trademark Examining Attorney finally refused registration of the mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark is likely to be confused with the mark CARRX (in standard
characters) registered on the Principal Register for:
downloadable mobile application that provides vehicle diagnostic
information, information related to the status and safety of vehicles,
information related to the severity and risks associated with delayed vehicle
maintenance and repairs, maintenance schedule information, maintenance
and repair reminders, and that enables users to schedule appointments with
vehicle repair and maintenance professionals, in International Class 9; and
providing temporary use of non-downloadable software that provides vehicle
diagnostic information, information related to the status and safety of
vehicles, information related to the severity and risks associated with delayed
vehicle maintenance and repairs, maintenance schedule information,
maintenance and repair reminders, and that enables users to schedule
appointments with vehicle repair and maintenance professionals, in
International Class 42.2
When the refusal was made final, Applicant requested reconsideration and filed
its notice of appeal. The Examining Attorney issued a subsequent final Office action
denying the request for reconsideration and the appeal was resumed and is now fully
briefed. We affirm the refusal to register.
I. Likelihood of Confusion
“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 [or] mistake, or to deceive.” In re Charger
capital letter “R” in “CARX” extends downward to form the letter “X”, with the words “TIRE
& AUTO” positioned below “CAR” and to the left of the letter “X”.
2 Registration No. 6800943 (the “Cited Registration”) issued on July 26, 2022.

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Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). Our determination
of the likelihood of confusion under Section 2(d) of the Trademark Act is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
1361 (CCPA 1973) (“DuPont”); Charger Ventures, 64 F.4th at 1379. We consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
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 relevant 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. Two key considerations in every likelihood of confusion analysis are the
similarities between the marks and the similarities between the goods or services. In
re i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017). We discuss the relevant
factors below.
A. Strength of the Mark in the Cited Registration
Before we make our comparison of the marks, we consider the strength of the
mark in the Cited Registration. We do so because a determination of the strength of
this mark helps inform us as to its scope of protection.

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The sixth DuPont factor3 considers “[t]he number and nature of similar marks in
use on similar goods.” DuPont, 476 F.2d at 1361. “A mark’s strength is measured both
by its conceptual strength ... and its marketplace strength ....” In re Chippendales
USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010). In determining the strength of
the mark in the Cited Registration, we consider inherent strength, based on the
nature of the mark itself. In re FCA US LLC, No. 85650654, 2018 WL 1756431, at
*13 (TTAB 2018). We also consider whether the mark has commercial weakness in
the marketplace if there is evidence in the record. DuPont, 476 F.2d at 1361 (the sixth
DuPont factor considers “the number and nature of similar marks in use on similar
goods.”); Top Tobacco, L.P. v. N. Atl. Operating Co., No. 91157248, 2011 WL 6099691,
at *9 (TTAB 2011) (the strength of a mark is determined by assessing its inherent
strength and its commercial strength); Tea Bd. of India v. Republic of Tea Inc., No.
91118587, 2006 WL 2460188, at *20 (TTAB 2006).
Applicant did not introduce evidence of third-party uses but instead asserts that
“evidence of several third-party registrations for similar marks directed to goods and
services in the automotive field demonstrates that the Cited Mark exists in a crowded
field and is therefore a weak source identifier entitled to only a narrow scope of
protection.”4 Evidence that a mark, or an element of a mark, appears in the marks of
3 As is normally the case in ex parte proceedings, the fifth factor is neutral because the record
generally includes no evidence as to fame, particularly since the owner of the cited
registration is not a party to the proceeding and thus cannot introduce evidence regarding
its use of the cited registered mark. See In re Thomas, No. 78334625, 2006 WL 1258862, at
*8 n.11 (TTAB 2006).
4 10 TTABVUE 11.

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many different third-party registrants may undermine the common element’s
conceptual or inherent strength as an indicator of a single source. Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. KGaA v. New Millennium Sports, S.L.U., 797
F.3d 1363, 1374 (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, 1338-39 (Fed. Cir. 2015)).
Applicant made of record copies of fifteen5 third-party registrations by six
different owners on the Principal Register for marks containing the word CAR and
the letter X namely, CARX,6 CARX and design,7 CARWORX and design,8 AUXCAR
and design,9 ECARX stylized,10 XCAR11 and XCAR and design.12 Applicant’s reliance
on these third-party registrations is problematic for several reasons.
5 Applicant argues that it has made of record sixteen third-party registrations but one of the
included registrations is the Cited Registration which is not a third-party registration. 10
TTABVUE 16; see Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL
2188890, at *15 (TTAB 2022).
6 Registration No. 5200527, January 8, 2025 Request for Reconsideration at TSDR 92-96.
7 Registration No. 5679760, id. at 97-98.
8 Registration No. 5870698, id. at 86-91; Registration No. 4754412, id. at 110-12.
9 Registration No. 6765214, id. at 99-100.
10 Registration Nos. 7064968, 7064969, 7292616, id. at 101-09.
11 Registration Nos. 4618588, 4804583, 4777830, 4748663, 4760900, id. at 62-85.
12 Registration No. 3450059, id. at 59-61.

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The Examining Attorney notes that all three of the registered ECARX stylized
marks are not based on use in commerce but rather were issued under Trademark
Act Section 44 with no claims of use alleged.13 See, e.g., Heil Co. v. Tripleye GmbH,
No. 91277359, 2024 WL 4925901, at *23 (TTAB 2024) (Registrations based on
Sections 44 or 66 or that have been cancelled lack probative value and not
considered). These registrations lack probative value and we have not considered
them, leaving twelve third-party registrations. Made in Nature, 2022 WL 2188890,
at *14 (excluding marks registered under Sections 44 or 66 from consideration of
conceptual strength).
Third-party marks must generally be as similar to the registered mark as the
applied-for mark to be probative in this context. See, e.g., Specialty Brands, Inc. v.
Coffee Bean Distribs., Inc., 748 F.2d 669, 675 (Fed. Cir. 1984) (“Applicant introduced
evidence of eight third-party registrations for tea which contain the word ‘SPICE’,
five of which are shown to be in use. None of these marks has a ‘SPICE (place)’ format
or conveys a commercial impression similar to that projected by the SPICE ISLANDS
mark, and these third-party registrations are of significantly greater difference from
SPICE VALLEY and SPICE ISLANDS than either of these two marks from each
other.”); Made in Nature, 2022 WL 2188890, at *14 (discounting the probative value
of “marks containing additional elements, trademark formatives of different
grammatical syntax or having a differing overall commercial impression, rendering
many of them less similar to [Registrant’s] mark[] than Applicant’s mark.”). While
13 12 TTABVUE 16; January 8, 2025 Request for Reconsideration at TSDR 101-09.

Serial No. 97673027
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the third-party registrations all include the letter X and the term CAR, most of the
marks include additional terms or designs, use the letter X as part of a term such as
WORX or AUX, or the X appears before CAR rather than after such as XCAR. These
differences are significant enough to make these third-party registrations less similar
to CARRX than Applicant’s CARX TIRE & AUTO mark is. See Sabhnani v. Mirage
Brands, LLC, No. 92068086, 2021 WL 6072822, at *13 (TTAB 2021) (“[W]hile the
registered marks all contain the word ‘MIRAGE,’ they contain additional elements
that cause many of them to be less similar to Petitioner’s mark than Respondent’s
marks are.”). Any weakness of the individual components of a mark is not, in and of
itself, sufficient to prove that their combination creates a weak mark. See In re Merck
& Co., Inc., 1975 WL 20942, at *1 (TTAB 1975) (third-party registrations in the
pharmaceutical field all containing the letter M “may show frequent adoption and
registration of the letter ‘M’ as a portion of composite marks, said registrations do not
establish that registrant’s mark viewed as a whole is weak and entitled to limited
protection...”).
Additionally, the twelve registrations submitted by Applicant are of little
probative value because there is no evidence in the record to suggest that the goods
or services identified in those registrations are similar to the services identified in
the Application or Cited Registration, and they are not clearly related on their
face. See Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315, 1325
(Fed. Cir. 2018) (error to rely on third-party evidence of similar marks for dissimilar
goods, as Board must focus “on goods shown to be similar”); i.am.symbolic, 866 F.3d

Serial No. 97673027
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at 1328-29 (disregarding third-party registrations for other types of goods where the
proffering party had neither proven nor explained that the goods were related to the
goods in the cited registration); Made in Nature, 2022 WL 2188890, at *13 (third-
party registrations of marks for unrelated goods “have little or no probative value in
showing the conceptual weakness of the terms” in Opposer’s marks). For example,
Applicant submitted six registrations for XCAR14 all owned by the same entity for a
variety of services such as mobile phone software and telecommunication services
providing information about motor vehicles, advertising services that provide
information about motor vehicles, commentary and entertainment programs in the
field of motor vehicles, and ski and luggage carriers for vehicles.15 The registrations
for the term CARX16 are for goods and services that involve transportation by van,
bus or car; and software for video games and vehicle dynamics simulation.17 Contrary
to Applicant’s arguments,18 the fact that these registrations cover goods and services
that broadly involve vehicles is insufficient to find them similar for purposes of
demonstrating weakness of the mark in the Cited Registration.
Even putting aside the fact that the third-party registrations cover unrelated
goods and services, these registrations are “not evidence of what happens in the
14 Registration Nos. 4618588, 4804583, 4748663, 4760900, 4777830 and 3450059.
15 10 TTABVUE 14-15.
16 Registration Nos 5679757, 5679760, and 5200527.
17 10 TTABVUE 13.
18 Id. at 16 (the marks are for “automobile-related goods and services.”); 13 TTABVUE 8 (all
of the third-party CARX registrations … exist within the same general automotive or
vehicular field).

Serial No. 97673027
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market place or that customers are familiar with them.” Sock It To Me, Inc. v. Aiping
Fan, No. 91230554, 2020 WL 3027605, at *12 (TTAB 2020) (quoting AMF Inc. v. Am.
Leisure Prods., Inc., 474 F.2d 1403, 1406 (CCPA 1973)); Productos Lacteos Tocumbo
S.A. de C.V. v. Paleteria La Michoacana Inc., No. 92047438, 2011 WL 2161071, at *14
(TTAB 2011).
We cannot conclude, based on this third-party registration evidence, that CARRX
has a non-source-identifying significance that undermines its conceptual strength as
an indicator of a single source. Cf. Jack Wolfskin, 797 F.3d at 1373-74 (involving
“extensive evidence of third-party registrations”); Juice Generation, 794 F.3d at 1339
(same). The third-party registrations submitted by Applicant show that the term CAR
along with the letter X, by itself or in connection with other terms, have been adopted
by several different entities in seeking to register trademarks for very different goods
or services that do not include automobile diagnostics or repair akin to Applicant’s
and Registrant’s identified services.19 But they do not show a pattern of registration
of the term “CARRX” in a manner that would prove that term has a “normally
understood and well recognized descriptive or suggestive meaning.” Juice Generation,
794 F.3d at 1339; cf. Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC,
No. 91217095, 2016 WL 7655551, at *6-7 (TTAB 2016) (weakness found based on at
19 The only third-party registration of record that, on its face, arguably covers a potentially
similar mark and similar services is the stylized mark ECARX for “platform as a service
(PAAS) featuring computer software platforms for use in carrying out vehicle control, vehicle
condition checking, remote vehicle diagnosis and vehicle location positioning in the field of
automobiles.” Registration No. 7292616, January 8, 2025 Request for Reconsideration at
TSDR 107-09. But as already noted, this registration is based on Section 44 with no Section
8 affidavit or declaration of use filed and has not been considered.

Serial No. 97673027
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least 85 actual uses of ROSE-formative marks for similar services, eight similar
third-party registrations, expert testimony and other evidence regarding the common
nature of ROSE-formative marks in the industry, and testimony by opposer that it
did not vigorously enforce its mark).
We find that Applicant has not demonstrated that CARRX is conceptually weak.
Because CARRX is registered on the Principal Register without a claim of acquired
distinctiveness under Section 2(f) of the Trademark Act, we afford it “the normal
scope of protection to which inherently distinctive marks are entitled.” Bell’s Brewery,
Inc. v. Innovation Brewing, No. 91215896, 2017 WL 6525233, at *9 (TTAB 2017); see
Made in Nature, 2022 WL 2188890, at *12. And as noted, because Applicant did not
submit any evidence regarding any third-party marketplace use, it has not
demonstrated that CARRX is commercially weak.
The sixth DuPont factor is neutral. We now compare the marks.
B. Comparing 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.’” Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 WL 6072822, at
*13 (TTAB 2021) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005)). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Inn at St.
John’s, No. 87075988, 2018 WL 2734893, at *5 (TTAB 2018) (citing In re Davia, No.

Serial No. 97673027
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85497617, 2014 WL 2531200, at *2 (TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed.
Cir. 2019).
The issue is not whether the marks can be distinguished when subjected to a side-
by-side comparison, but rather whether the marks are sufficiently similar in terms of
their overall commercial impression that confusion as to the source of the goods or
services offered under the respective marks is likely to result. Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012). We keep in mind that
consumers must depend on their recollection of marks to which they have previously
been exposed and that their memories are fallible. See, e.g., In re St. Helena Hosp.,
774 F.3d 747, 751 (Fed. Cir. 2014); Sage Therapeutics, Inc. v. Sageforth Psych. Servs.,
LLC, No. 91270181, 2024 WL 1638376, at *5 (TTAB 2024).
Applicant argues that its mark is different in appearance as it is made up of three
words, CARX TIRE & AUTO, whereas the mark in the Cited Registration is one word,
CARRX;20 that the mark in the Cited Registration contains an extra “R” such that
the only shared element is the word CAR which “is a weak and diluted source
indicator and cannot alone justify a finding of confusing similarity”;21 that the marks,
when pronounced, “sound entirely different”22 with Applicant’s mark having “two
distinct syllables: CAR-X”23 and the mark in the Cited Registration having three
20 10 TTABVUE 18.
21 Id. at 19.
22 Id.
23 Id.

Serial No. 97673027
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distinct syllables: CAR-R-X”;24 and that the connotation and commercial impressions
are different because the mark in the Cited Registration can be seen as CAR and RX
suggesting that CARRX will provide expert advice increasing the health of your car
whereas Applicant’s mark uses CAR to refer to the vehicle and X represents the
completion of a routine maintenance and auto repair with the design reinforcing the
impression of “services are ‘X-ed’ off (i.e. ‘crossed’ off) the consumers’ to-do list.”25
The Examining Attorney asserts that CARRX is virtually identical in appearance
to the dominant term in Applicant’s mark, CARX;26 that Applicant’s mark is stylized
showing the letters RX as a prescription symbol mirroring the RX in the mark in the
Cited Registration “rendering this wording identical in sound”;27 that customers are
accustomed to seeing RX blended with another source word;28 and that because:
the dominant parts of the marks are virtually identical but for a singular
repeated letter and because both marks are expressions of identical source
word phrasing “CAR” and “RX”, the marks convey the same connotation and
overall impression of automobile “healing” or automobile repair when
considered in connection with applicant’s and registrant’s respective goods
and services.29
We do not ignore the differences between the marks. Applicant’s mark starts with
CARX and contains TIRE & AUTO with the words in black on a yellow background
24 Id.
25 Id. at 20-21.
26 12 TTABVUE 7.
27 Id.
28 Id. at 8.
29 Id.

Serial No. 97673027
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with a black rectangle. However, as explained below, we find these differences do
little to distinguish the marks for purposes of avoiding confusion.
We agree with the Examining Attorney that the dominant portion of Applicant’s
mark is CARX which is virtually identical to CARRX.30 CARX is the first word of
Applicant’s mark, the term TIRE & AUTO comes after CARX and is disclaimed, an
implicit concession that the terms are, at a minimum, descriptive. See, e.g., 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”); In re
Zuma Array Ltd., No. 79288888, 2022 WL 3282655, at *7 (TTAB 2022) (“Applicant
‘disclaimed exclusive rights in the term ‘Smart,’ thus conceding that ‘smart’ is merely
descriptive of electronic sensor modules.”) (citing In re Six Continents Ltd., No.
88430142, 2022 WL 407385, at *8 (TTAB 2022) (disclaimer of the word SUITES in
mark ATWELL SUITES “is a concession that ‘Suites’ is not inherently distinctive”)).
Further, CARX is the most prominent portion of Applicant’s mark in terms of size,
position and emphasis.
We acknowledge that the presence of TIRE & AUTO contributes to the
connotation of Applicant’s mark as a whole. Also, the presence of TIRE & AUTO may
reduce the visual similarities of the marks in a side-by-side comparison or help to
differentiate the parties’ marks in sound when fully articulated. However, as noted,
30 Id.

Serial No. 97673027
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a side-by-side comparison is not the test, Coach Servs., 668 F.3d at 1368. Any
contribution of TIRE & AUTO terms, which are not source-identifying but rather are
descriptive of the services, do too little to differentiate the mark as to source and are
outweighed by the dominant term CARX. See Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 1266 (Fed. Cir. 2002) (similar commercial impression even
though applicant’s mark PACKARD TECHNOLOGIES, with “TECHNOLOGIES”
disclaimed, does not incorporate every feature of opposer’s HEWLETT PACKARD
marks); Frostie Co. v. Sun-Glo Packers, Inc., 315 F.2d 932, 933-34 (CCPA 1963) (“In
practical effect [FROSTY INN] incorporates [FROSTIE] in its entirety. The
additional work ‘INN’ is short and forms the terminal part of Sun-Glo’s mark, thereby
minimizing any effect it might have in distinguishing from the single word mark,
‘FROSTIE,’ in either sound or appearance.”); Double Coin Holdings Ltd. V. Tru Dev.,
No. 92063808, 2019 WL 4877349, at *8 (TTAB 2019) (“likelihood of confusion often
has been found where the entirety of one mark is incorporated within another.”)
(quoting Hunter Indus., Inc. v. Toro Co., No. 91203612, 2014 WL 1649332, at *11
(TTAB 2014)); see also In re Bay State Brewing Co., No. 85826258, 2016 WL 1045677,
at *3 (TTAB 2016) (noting “the penchant of consumers to shorten marks”) (citation
omitted).
The literal element of Applicant’s mark essentially incorporates the entirety of
CARRX, albeit a variant spelling, without adding any distinctive wording that
distinguishes it from CARRX. The difference in appearance between CARX and
CARRX resulting from the difference in a single letter may be noticed if the marks

Serial No. 97673027
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are viewed together, but, again, they “must be considered … in light of the fallibility
of human memory” and “not on the basis of side-by-side comparison.” St. Helena
Hosp., 774 F.3d at 751 (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs.
Components Corp., 565 F.2d 683, 685 (CCPA 1977)).
While Applicant’s CARX TIRE & AUTO mark is presented in stylized characters,
in black and yellow with a design element, such a presentation will not avoid a
likelihood of confusion. First, the Cited Registration is a standard character mark
that could be presented in the same manner, i.e., in the same font, style, size and
color. See In re Viterra Inc., 671 F.3d 1358, 1364 (Fed. Cir. 2012); In re Mighty Leaf
Tea, 601 F.3d 1342, 1348 (Fed. Cir. 2010) (rejecting an argument that the specific
style of a registered mark could serve to distinguish the applicant's mark in standard
character form). Second, the background and design elements of the mark in the
Application are minimal and do not contribute strongly to the overall impression of
the mark. The design is an ordinary, geometric shape serving as the background,
along with the color yellow, for the literal element. See In re Dixie Rests. Inc., 105
F.3d 1405, 1407 (Fed. Cir. 1997) (“Neither the design element nor the generic term
‘café’ offers sufficient distinctiveness to create a different commercial impression.
Indeed, as the board found, the design is an ordinary geometric shape that serves as
a background for the word mark.”); In re Ocean Tech., Inc., No. 87405211, 2019 WL
6245131, at *6 (TTAB 2019) (“the circular design around the wording ‘100% REAL
CALLINECTES CRAB’ on the right side of the proposed marks is a common
geometric shape that consumers likely would perceive as a background design or

Serial No. 97673027
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carrier to the enclosed wording, rather than as a separable design element with
trademark significance.”); Guess? Inc. v. Nationwide Time Inc., No. 91078773, 1990
WL 354554, at *2-3 (TTAB 1990) (a common, geometric shape, particularly one
serving as a carrier or background design element, is not usually considered
distinctive). Lastly, we find that the stylization of the literal term CARX TIRE &
AUTO has a minimal impact, if any, on the overall commercial impression of the
mark. See In re 1st USA Realty Pros. Inc., No. 78553715, 2007 WL 2315610, at *5
(TTAB 2007) (“The registered mark is for the words FIRST USA in a slightly stylized
typestyle. However, the stylization is so minimal that it does not make a real
commercial impression.”).
Applicant’s attempt to distinguish its mark by describing its use of the letter X as
giving the impression of marking off a to-do list rather than as a prescription depicted
by RX31 is unpersuasive. The letter X in its mark is partially formed by the tail of the
letter R which intersects the X, and the letters RX are the same color and of nearly
equal size and prominence. It is clear that a consumer would likely view the
intertwined nature of the letters RX as invoking the prescription symbol. Contrary to
Applicant’s assertions,32 the slight difference in spelling in the marks (CARX v
CARRX) does not change the meaning or pronunciation of the terms and thus does
not play much of a role in creating different connotations, sounds or commercial
31 American Heritage Dictionary, AHDICTIONARY.COM, February 20, 2025 Subsequent Final
Office Action at TSDR 45 (RX defined as “a prescription for medicine … A remedy, cure, or
solution for a disorder or problem.”).
32 See, e.g., 10 TTABVUE 19.

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impressions. See, e.g., Contour Chair-Lounge Co. v. Englander Co., 324 F.2d 186, 189
(CCPA 1963) (finding that “‘Contur’ but a slight misspelling of ‘Contour,’” Court held
that confusion was likely as between CONTURFOAM for mattresses and box springs
and CONTOUR for chairs); Nat’l Mineral Co. v. Norwich Pharmacal Co., 183 F.2d
119, 120 (CCPA 1950) (“That the marks are similar in sound is beyond question.
‘Swav’ is the pronunciation of ‘suave’, as shown by the dictionaries. That the marks
are alike in meaning we think is clear, both indicating smoothness, sleekness and
good grooming. Therefore, as far as the similarity between the marks is concerned,
we deem that in sound and meaning they are not, in a trade-mark registration sense,
legally distinguishable.”).
We disagree with Applicant that its mark would necessarily be pronounced CAR-
X and the mark in the Cited Registration would be pronounced CAR-R-X.33 It has
long been held that “there is no correct pronunciation of a trademark that is not a
recognized word.” In re Jimenez, 2025 WL 3126703, at *5 (TTAB 2025) (quoting
StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 1331-32 (Fed. Cir.
2014)). Consumers therefore could pronounce a mark differently than the mark owner
intends. See Viterra, 671 F.3d at 1367. We find it more likely that both marks will be
pronounced identically, as CAR-RX. In certain circumstances, similarity in sound
alone may be sufficient to find the marks confusingly similar. In re 1st USA Realty
Prof’ls, 2007 WL 2315610, at *6 (“Similarity in sound alone may be sufficient for a
33 10 TTABVUE 19.

Serial No. 97673027
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finding of likelihood of confusion.”) (citing Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d
728, 907 (CCPA 1968)).
In this case, when we consider the marks in their entireties, we find not only
similarity in sound but also in appearance, and that they convey the same or similar
connotation and commercial impression. There is nothing in the record to persuade
us that any of the differences argued by Applicant meaningfully distinguish the
appearance, sound, connotation or commercial impression of the respective marks.
This DuPont factor supports a conclusion that confusion is likely.
C. Similarity or Dissimilarity of the Services, Channels of Trade and
Consumers
1. Relatedness of the Services
“The second DuPont factor ‘considers [t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration.’” In re Embiid,
No. 88202890, 2021 WL 2285576, at *10 (TTAB 2021) (quoting In re Detroit Athletic
Co., 903 F.3d 1297, 1306 (Fed. Cir. 2018)). “In analyzing the services, the Board
considers [t]he similarity or dissimilarity and nature of the services as described in
an application or registration.” In re OSF Healthcare Sys., No. 88706809, 2023 WL
6140427, at *4 (TTAB 2023) (quoting Embiid, 2021 WL 2285576, at *10). The
“Examining Attorney need not prove, and we need not find, similarity as to each
product listed in the description of [services]” to affirm the refusal. In re St. Julian
Wine Co., No. 87834973, 2020 WL 2788005, at *5 (TTAB 2020). “[I]t is sufficient for
finding a likelihood of confusion if relatedness is established for any item
encompassed by the identification of [services] within a particular class in the

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application.” In re Aquamar, Inc., No. 85861533, 2015 WL 4269973, at *4 n.5 (TTAB
2015). It is “not necessary that the [services] be similar or even competitive to support
a finding of a likelihood of confusion.” Coach Servs., 668 F.3d at 1369 (quoting 7-
Eleven, Inc. v. Wechsler, No. 91117739, 2007 WL 1431084, at *10 (TTAB 2007)).
“[L]ikelihood of confusion can be found ‘if the respective [services] 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.”’ Id.
One way to show that consumers perceive services as related (in the trademark
sense) is to show that other companies offer both the services identified in an
application and those identified in a cited registration under the same mark. See, e.g.,
Naterra Int’l, 92 F.4th at 1117; Detroit Athletic, 903 F.3d at 1306; Hewlett-Packard,
281 F.3d at 1267. To support the argument that the services are related, the
Examining Attorney submitted evidence of at least nineteen34 third-party websites
offering the services identified in both the Application and Cited Registration under
34 Applicant argues that three of the third-party websites – RADIALTIRECOMPANY.COM,
MCNEILSUTAH.COM, and SLBATTERYTIRE.COM – were “introduced in connection with a merely
descriptive refusal regarding the term ‘Tire & Auto,’ not to show relatedness of goods or
services.” 10 TTABVUE 24. However, “[o]nce evidence is properly of record, it may be relied
on … for any purpose,” Nazon v. Ghiorse, 91216729, 2016 WL 3876810, at *2 n.6 (TTAB 2016),
and these websites allow the consumer to schedule vehicle service on the websites which is
encompassed by services identified in the Cited Registration including “providing temporary
use of non-downloadable software … that enables users to schedule appointments with
vehicle repair and maintenance professionals” in International Class 42 and are thus,
relevant. See August 30, 2023 Office Action at TSDR 41, 45, 49. Even if we did not consider
these websites in connection with our relatedness analysis, the Examining Attorney has
submitted fifteen other third-party websites to support a finding that the relevant services
are related.

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the same marks, including the marks JIFFY LUBE;35 SPIFFY;36 ACURA;37
PORCHE;38 MERCEDES-BENZ;39 NISSAN;40 TOYOTA;41 BMW;42 and TESLA.43 See
Hewlett-Packard, 281 F.3d at 1267 (evidence that “a single company sells the goods
and services of both parties, if presented, is relevant to a relatedness analysis”).
Applicant attempts to distinguish its services by asserting that its services are
“in-person automotive repair services, while the Cited Mark is used in connection
with remote diagnostic software”;44 and that the Examining Attorney’s evidence
relies heavily on references to large corporations that are uniquely positioned to offer
a broad array of goods and services including physical vehicle maintenance and
vehicle diagnostic software but that this “business model is not representative of
industry norms for smaller, independent, or regional automotive service providers
such as Applicant.”45
35 August 30, 2023 Office Action at TSDR 11; February 20, 2025 Subsequent Final Office
Action at TSDR 47-56.
36 August 30, 2023 Office Action at TSDR 12-17; February 20, 2025 Subsequent Final Office
Action at TSDR 57-59.
37 August 30, 2023 Office Action at TSDR 18-27; February 20, 2025 Subsequent Final Office
Action at TSDR 60-63.
38 August 30, 2023 Office Action at TSDR 28-34.
39 February 20, 2025 Subsequent Final Office Action at TSDR 66-73, 153-83.
40 Id. at 74-91.
41 Id. at 92-114.
42 Id. at 115-132.
43 Id. at 184-93,
44 10 TTABVUE 21, 23-24.
45 Id. at 24-25.

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Applicant’s argument regarding auto business models and industry norms is
unsupported attorney argument which is no substitute for evidence. See, e.g., Estée
Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) (“arguments of counsel
cannot take the place of evidence lacking in the record”) (citation omitted).
Furthermore, as our primary reviewing Court’s predecessor said in Hydra Mac, Inc.
v. Mack Trucks, Inc., 507 F.2d 1399 (CCPA 1975), “the confusion found to be likely is
not as to the [services] but as to their source. Here the [services] of the parties are
such as might reasonably be expected to emanate from the same source.” Id. at 1400
(citation omitted); see also Mishawaka Rubber & W. Mfg. Co. v. Bata Narodni Podnik,
222 F.2d 279, 287 (CCPA 1955) (“In determining whether there is likelihood of
confusion, one is not concerned merely with confusion in goods; the question is
whether goods are of a nature which purchasers might reasonably assume to come
from same source.”).
Contrary to Applicant’s assertions, the evidence shows that the relevant services
share a similar purpose for consumers – vehicle health, repair and maintenance.
Again, “likelihood of confusion can be found ‘if the respective [services] 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.”’
Coach Servs., 668 F.3d at 1369 (quoting 7-Eleven, 2007 WL 1431084, at *10). We find
the marketplace evidence detailed above persuasive to show that consumers
encounter services identified in the Application coming from the same sources as the
services identified in the Cited Registration, or reasonably expect those services to

Serial No. 97673027
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emanate from the same source. See, e.g., Detroit Athletic, 903 F.3d at 1306 (crediting
relatedness evidence that third parties use the same mark for the goods and services
at issue because “[t]his evidence suggests that consumers are accustomed to seeing a
single mark associated with a source that sells both”); Hewlett-Packard, 281 F.3d at
1267 (evidence that “a single company sells the goods and services of both parties, if
presented, is relevant to a relatedness analysis”).
Based on the evidence of record, we find Applicant’s services are related to the
services identified in the Cited Registration and thus, this factor weighs in favor of a
conclusion of likelihood of confusion.
2. Trade Channels and Consumers
Under the third DuPont factor, we consider “‘[t]he similarity or dissimilarity of
established, likely-to-continue trade channels.’” Detroit Athletic, 903 F.3d at 1306
(quoting DuPont, 476 F.2d at 1361)). We also consider the classes of consumers for
Applicant’s and Opposer’s goods and services. Id. As with the comparison of the
services, we base our comparison of the trade channels and customers on what is set
forth in the Application and Cited Registration. See, e.g., i.am.symbolic, 866 F.3d at
1325.
Applicant’s arguments that it is a small, regional business and that its services
are in-person whereas the Cited Registration services are remote appear to also be
assertions that the trade channels are different and target different consumers.46
46 See, e.g., 10 TTABVUE 17 (“when considered together with the factors discussed above –
as well as … the distinct services offered in varying channels of trade”); id. at 21 (“Applicant’s
Mark and the Cited Mark are Used with Unrelated Goods and Services and/or in Dissimilar
Channels of Trade”).

Serial No. 97673027
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Applicant argues that “the record contains no evidence demonstrating that
aftermarket automotive repair providers like Applicant routinely offer, or are
expected by consumers to offer, downloadable or cloud-based diagnostic software of
the type provided under the Cited Mark.”47
Applicant may not restrict the scope of the unrestricted services covered in its
Application or the Cited Registration by argument or by extrinsic evidence about its
current means of distribution. Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746
F.3d 1317, 1323 (Fed. Cir. 2014) (“It was proper, however, for the Board to focus on
the application and registrations rather than on real-world conditions ….”); Octocom
Sys. Houston Computer Servs., 918 F.2d 937, 942 (Fed. Cir. 1990) (“The authority is
legion that 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 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 the sales of goods are
directed.”); CBS Inc. v. Morrow, 708 F.2d 1579, 1581 (Fed. Cir. 1983) (“The
description of the [services] in the application for registration is critical because any
registration that issues will carry that description. Moreover, although a registrant’s
current business practices may be quite narrow, they may change at any time from,
for example, industrial sales to individual consumer sales.”) (citation omitted). When,
as in this case, the involved identifications do not limit how the services are sold or
47 Id. at 25.

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to whom, we presume that they are sold “in all normal trade channels to all the
normal classes of purchasers.” Detroit Athletic, 903 F.3d at 1308.
The Examining Attorney’s Internet evidence of at least nineteen third-party uses
discussed above demonstrating that the services identified in the Application and
Cited Registration are related also demonstrates that third-parties also offer both the
services identified in the Application and Cited Registration. See, e.g., Hewlett-
Packard, 281 F.3d at 1267 (evidence that “a single company sells the goods and
services of both parties, if presented, is relevant to a relatedness analysis”); Embiid,
2021 WL 2285576, at *15 (Board found “channels of trade and classes of customers
plainly overlap” where record demonstrated relevant goods sold together on third-
party websites and offered and registered under a single mark by numerous
businesses). This evidence shows that the trade channels and customers for the
services in the Application and Cited Registration overlap to at least some degree.
Aside from attorney argument, which is no substitute for evidence, Applicant offers
no evidence to the contrary. See, e.g., Estée Lauder., 129 F.3d at 595 (“arguments of
counsel cannot take the place of evidence lacking in the record”) (citation omitted).
The overlap in classes of customers and trade channels both weigh in favor of a
conclusion of likelihood of confusion.
D. Actual Confusion
The eighth DuPont factor contemplates the “length of time during and conditions
under which there has been concurrent use without evidence of actual confusion.”
DuPont, 476 F.2d at 1361.

Serial No. 97673027
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The absence of any reported instances of confusion is meaningful only if the record
indicates appreciable and continuous use by Applicant of its mark for a significant
period of time in the same markets as those served by the Registrant under its
respective mark. Gillette Can. Inc. v. Ranir Corp., No. 91082769, 1992 WL 174453, at
*6 (TTAB 1992). In other words, for the absence of actual confusion to be probative,
there must have been a reasonable opportunity for confusion to have occurred.
Barbara's Bakery Inc. v. Landesman, No. 91157982, 2007 WL 196406, at *5 (TTAB
2007) (the probative value of the absence of actual confusion depends upon there
being a significant opportunity for actual confusion to have occurred); Cent. Soya Co.,
Inc. v. North Am. Plant Breeders, 1981 WL 40439, at *10 (TTAB 1981) (“the absence
of actual confusion over a reasonable period of time might well suggest that the
likelihood of confusion is only a remote possibility with little probability of
occurring”).
Applicant argues that the marks have “coexisted in the marketplace for over five
years without any known instances of actual confusion, making the eighth du Pont
factor particularly relevant.”48
We do not accord significant weight to Applicant’s contention, particularly given
that there is no evidence of record as to the amount and extent of Applicant’s sales
and advertising of its identified services under its involved mark. Further, there is
no evidence of record as to the scope and extent of Registrant’s use of its respective
mark in connection with the services listed in the Cited Registration.
48 10 TTABVUE 10.

Serial No. 97673027
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Accordingly, while examples of actual confusion may point toward a finding of a
likelihood of confusion, an absence of such evidence is not as compelling in support of
a finding of no likelihood of confusion. In re Opus One, Inc., No. 75722593, 2001 WL
1182924, at *7 (TTAB 2001) (“The fact that an applicant in an ex parte case is
unaware of any instances of actual confusion is generally entitled to little probative
weight in the likelihood of confusion analysis, inasmuch as the Board in such cases
generally has no way to know whether the registrant likewise is unaware of any
instances of actual confusion, nor is it usually possible to determine that there has
been any significant opportunity for actual confusion to have occurred.”). Thus, we
cannot conclude from the lack of instances of actual confusion that confusion is not
likely to occur.
Therefore, the eighth DuPont factor is neutral.
E. The 13th DuPont Factor
In addition to the DuPont factors discussed above, Applicant asserts that this case
is similar to In re Strategic Partners, Inc., No. 77903451, 2012 WL 1267930 (TTAB
2012) because it owns a prior registration for CAR-X in standard characters for
“automotive services comprising installation and repair of automotive exhaust
systems, brakes and shock absorbers” in International Class 3749 which coexisted
with the Cited Registration; and that the Examining Attorney’s refusal is
49 Registration No. 1003042 issued January 23, 1975; renewed (the “Prior Registration”); 10
TTABVUE 6-9.

Serial No. 97673027
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inconsistent with the examination record, “which the USPTO strives to avoid.”50
Under the thirteenth DuPont factor, the Board considers “[a]ny other established
fact probative of the effect of use,” DuPont, 476 F.2d at 1361. It is a “catchall” factor
that “accommodates the need for flexibility in assessing each unique set of facts ...”
In re Country Oven, Inc., No. 87354443, 2019 WL 6170483, at *8 (TTAB 2019)
(citations omitted). “This includes a variety of circumstances, such as the coexistence
of an applicant’s prior-registered mark with the cited registration. Where an
applicant owns a prior registration and the mark is ‘substantially the same’ as in the
applied-for application, this can weigh against finding that there is a likelihood of
confusion.” Id. (citations omitted).
1. Strategic Partners
In determining whether the coexistence of the Prior Registration with the Cited
Registration weighs against finding confusion between the marks, we may consider:
(1) whether the mark in the Prior Registration is the same as the mark in the
Application or is otherwise not meaningfully different; (2) whether the identifications
of goods or services in the Application and Prior Registration are identical in relevant
part; and (3) the length of time the Prior Registration has coexisted with the Cited
Registration being considered as the basis for the Section 2(d) refusal. Strategic
Partners, 2012 WL 1267930, at *3.
We observe that the Prior Registration, as with the applicant’s prior registration
in Strategic Partners, issued over five years ago, and thus “is not subject to attack by
50 Id. at 25.

Serial No. 97673027
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the owner of the cited registration on a claim of priority and likelihood of confusion.”
Strategic Partners, 2012 WL 1267930, at *3. In addition, the Prior Registration is for
the same services identified in the Application.
An important contrast from Strategic Partners, as the Examining Attorney
argues, is that the marks in the Prior Registration and Application are meaningfully
different, specifically, the hyphen in the Prior Registration.51 The Examining
Attorney argues that the widely known graphic connection with these letters is the
prescription symbol which “leaves no room for the hyphen to exist, visually or
conceptually.”52 Further, we observe that the mark in the Application contains the
additional terms TIRE & AUTO as well as the colors yellow and black and a geometric
design.
Despite Applicant’s argument that the mark in the Prior Registration could be
rendered in the same visual presentation as the mark in the Application,53 overall,
the marks in the Application and Cited Registration for purposes of Strategic
Partners are meaningfully different. We agree with the Examining Attorney that the
Application is not just a merely stylized version of its Prior Registration. The hyphen
in the Prior Registration separates the letters R and X whereas in the Application,
the letters are intertwined; the mark in the Prior Registration does not have the same
“mental imagery related to prescriptions, as the applied-for mark evokes.”54
51 12 TTABVUE 13.
52 Id.
53 10 TTABVUE 8.
54 Id.

Serial No. 97673027
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Consequently, Strategic Partners is not applicable in this case.
2. Consistency in Decisions
We agree with Applicant’s general proposition that the USPTO is an
administrative agency and that it strives for consistency in its decisions but the
USPTO is also required to apply the applicable statutory requirement to the unique
facts and evidence of each case. Any “inconsistency” arguments must yield to this
polestar. See, e.g., Cordua Rests., 823 F.3d at 600; Shinnecock Smoke Shop, 571 F.3d
at 1174; In re Ala. Tourism Dep’t, No. 87599292, 2020 WL 2301221, at *14 (TTAB
2020) (“While we recognize that consistency is highly desirable, consistency in
examination is not itself a substantive rule of trademark law, and a desire for
consistency with the decisions of prior examining attorneys must yield to proper
determinations under the Trademark Act and rules.”) (cleaned up; citations omitted).
We therefore reject Applicant’s “inconsistency” argument.
3. Conclusion
Based on the foregoing, we find the 13th DuPont factor neutral.
II. Conclusion – Weighing the Factors
Having considered all of the arguments and evidence of record, we now turn to
weighing together our findings on the relevant likelihood of confusion factors.
Overall, the marks are similar and the record clearly indicates that the services are
related. These together comprise what has been called “the fundamental inquiry” in
a Section 2(d) analysis, Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 1103 (CCPA 1976), and the first and second factors weigh in favor of a

Serial No. 97673027
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conclusion that confusion is likely. We also find that the overlap, at least to some
degree, in channels of trade and classes of consumer cause the third factor to weigh
in favor of a conclusion of likelihood of confusion. We find that the fifth, sixth, eighth
and thirteenth factors are neutral.
All factors either weigh in favor of a likelihood of confusion or are neutral. On
balance, we conclude there is a likelihood of confusion.
Decision: The refusal to register Applicant’s mark under Trademark Act Section
2(d) is affirmed.