Paragon Implant LLC

Mailed: April 8, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Paragon Implant LLC
————
Serial No. 98745742
————
Patrick F. Bright of Wagner Anderson & Bright PC,
for Paragon Implant LLC.
Rebekah Richardson, Trademark Examining Attorney, Law Office 134,
Sophia Kim, Managing Attorney.
————
Before Wellington, Pologeorgis, and Bradley,
Administrative Trademark Judges.
Opinion by Pologeorgis, Administrative Trademark Judge:
Paragon Implant LLC (“Applicant”) seeks registration on the Principal Register
of the standard character mark TRIACTIVE for “Dental implants; Implant
abutments for dental purposes” in International Class 10.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
1 Application Serial No. 98745742, filed on September 11, 2024, based on an 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).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 98745742
2
likelihood of confusion with the following two registered marks (both owned by the
same Registrant):
• Reg. No. 7594066 – ;2 and
• Reg. No. 7594067 – TRIACTIV (standard characters);3
Both cited registrations identify the identical goods in International Class 10,
namely:
Needles for medical, surgical and veterinary purposes; surgical
instruments, namely, needle holders; syringes for medical use;
catheters, butterfly valves being specifically adapted for use with
medical cannulae; cannulae; parts and accessories for all the
aforementioned goods, namely, replacement parts and containers
specifically adapted for the disposal of medical instruments, syringes,
and contaminated medical waste.
When the refusal was made final, Applicant appealed and requested
reconsideration two times.4 When the requests for reconsideration were denied, the
appeal resumed. The appeal is fully briefed. For the reasons explained below, we
affirm the Section 2(d) refusal to register.5
2 Registered December 10, 2024. The registration includes the following description of the
mark: “The mark consists of the wording ‘TRIACTIV’ to the right of a circular design element
encompassing a stylized syringe design element.” Additionally, color is not claimed as a
feature of the mark.
3 Registered December 10, 2024.
4 Applicant filed a request for reconsideration on September 11, 2025 and October 1, 2025.
Both of these submissions consist of virtually the identical declaration of Dr. Gerald A.
Niznick, Applicant’s president and CEO, with only a minor modification in the second
submission that does not alter the testimony provided.
5 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to

Serial No. 98745742
3
I. Preliminary Matter – Examining Attorney’s Evidentiary Objection
We initially turn to an evidentiary objection lodged by the Examining Attorney.
Specifically, the Examining Attorney objects to Exhibit A to Applicant’s appeal brief
because this evidence was submitted for the first time as an exhibit to the brief.6
It is well-settled that the record in an ex parte proceeding should be complete prior
to appeal. Trademark Rule 2.142(d); 37 C.F.R. § 2.142(d). Exhibits that are attached
to a brief but not made of record during examination are untimely, and will not be
considered. See In re Fitch IBCA, Inc., No. 75628232, 2002 WL 745593, at *1 n.2
(TTAB 2002); see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) §§ 1203.02(e) and 1207.01 (2025). To the extent Applicant wished to
introduce additional evidence after its appeal had been filed, Applicant should have
filed a separately captioned written request with the Board to suspend the appeal
and remand the application for further examination pursuant to Trademark Rule
2.142(d). Applicant did not do so. Accordingly, the Examining Attorney’s evidentiary
objection is sustained, and we give no consideration to Exhibit A attached to
Applicant’s appeal brief.
II. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents.
6 Exhibit A is comprised of screenshots from Registrant’s website, www.numedico.com.
submitted purportedly to demonstrate that Registrant’s goods are offered to medical
professionals, and not to dental professionals. See Applicant’s Appeal Brief, Ex. A, 6
TTABVUE 9-21.

Serial No. 98745742
4
goods of the applicant, to cause confusion, mistake, or deception. 15 U.S.C. § 1052(d).
See also In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023). Our
determination under Section 2(d) is based on an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E. I. DuPont de Nemours
& Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v.
Hargis Indus., Inc., 575 U.S. 138, 144 (2015); see also In re Majestic Distilling Co.,
315 F.3d 1311, 1314-15 (Fed. Cir. 2003).
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) (quoting Tiger Lily Ventures Ltd. v. Barclays
Cap. Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be
assigned to each factor depending on the evidence presented, and “any one of the
factors may control a particular case.” Id.; see also Charger Ventures, 64 F.4th at 1381.
While we consider each DuPont factor for which there is evidence and argument, In
re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019), two key considerations are
the similarities between the marks and the similarities between the goods. In re
i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)).
We focus our analysis on the cited standard character mark TRIACTIV, because
if Applicant’s standard character TRIACTIVE mark is likely to cause confusion with
this cited mark for the respective identified goods, there is no need for us to consider
whether there is a likelihood of confusion with the cited registered composite mark,

Serial No. 98745742
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which has additional points of difference; conversely, if there is no likelihood of
confusion between Applicant’s mark and the cited registered standard character
TRIACTIV mark, then there would be no likelihood of confusion with the cited
registered composite mark. See Sock It To Me, Inc. v. Fan, No. 91230554, 2020 WL
3027605, at *9 (TTAB 2020) (confining Section 2(d) analysis to most similar pleaded
mark); In re Max Cap. Grp. Ltd., No. 77186166, 2010 WL 22358, at *2 (TTAB 2010)
(confining Section 2(d) analysis to cited typed drawing).
A. Similarity 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.” Palm Bay Imps. v. Veuve Cliquot Ponsardin Maison Fondee En 1772,
396 F.3d 1369, 1371 (Fed. Cir. 2005) (quoting DuPont, 476 F.2d at 1361). “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) (quoting
In re Davia, No. 85497617, 2014 WL 2531200, at *2 (TTAB 2014)).
The proper test for similarity “is not a side-by-side comparison of the marks, but
instead whether the marks are sufficiently similar in terms of their commercial
impression such that persons who encounter the marks would be likely to assume a
connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1373
(Fed. Cir. 2018) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356,
1368 (Fed. Cir. 2012) (internal quotation marks and citation omitted)). The focus is
on the recollection of the average customer, who retains a general rather than specific
impression of trademark marks. In re St. Julian Wine Co., No. 87834973, 2020 WL

Serial No. 98745742
6
2788005, at *6 (TTAB 2020). Consumers may not necessarily encounter the marks in
close proximity and must rely upon their recollections thereof over time. In re Mucky
Duck Mustard, No. 73603019, 1988 WL 252484, at *1 (TTAB 1988).
Here, Applicant’s mark is TRIACTIVE in standard characters. The cited mark is
TRIACTIV, also in standard characters. The marks are very similar in appearance,
sound, connotation, and overall commercial impression because the entirety of the
cited mark is encompassed by Applicant’s mark; in such cases, confusing similarity
has often been found. See e.g., See In re Mighty Leaf Tea, 601 F.3d 1342, 1347-48 (Fed.
Cir. 2010) (ML similar to ML MARK LEES); Coca-Cola Bottling Co. v. Jos. E.
Seagram & Sons, Inc., 526 F.2d 556, 557 (CCPA 1975) (BENGAL and BENGAL
LANCER and design found to be similar); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376
F.2d 324, 324-25 (CCPA 1967) (THE LILLY similar to LILLI ANN); In re U.S. Shoe
Corp., No. 73446404, 1985 WL 72046, at *3 (TTAB 1985) (CAREER IMAGE similar
to CREST CAREER IMAGES).
Applicant argues that the marks are spelled differently and may be pronounced
differently by targeted customers.7 We are not persuaded by Applicant’s arguments.
Even if consumers were to pronounce the marks differently, slight differences in the
sound of similar marks will not avoid a likelihood of confusion. See In re Viterra Inc.,
671 F.3d 1358, 1367 (Fed. Cir. 2012); In re Energy Telecomms. & Elec. Ass’n, No.
unknown, 1983 WL 51826, at *1 (TTAB 1983). There is no correct pronunciation of a
mark; thus, consumers may pronounce a mark differently than intended by the mark
7 Applicant’s Appeal Brief, pp. 5-6, 6 TTABVUE 6-7.

Serial No. 98745742
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owner. Viterra, 671 F.3d at 1367 (citing Interlego AG v. Abrams/Gentile Entm’t, Inc.,
No. 91103612, 2002 WL 31039614, at *2 (TTAB 2002)); TRADEMARK MANUAL OF
EXAMINING PROCEDURE (“TMEP”) § 1207.01(b)(iv) (Nov. 2025). In the present case,
the compared marks could clearly be pronounced the same because they are virtually
identical in appearance, except for the additional letter “e” at the end of Applicant’s
mark. As noted above, such similarity in sound alone may be sufficient to support a
finding that the compared marks are confusingly similar. In re 1st USA Realty Prof’ls,
Inc., No. 78553715, 2007 WL 2315610, at *5 (TTAB 2007) (citing Krim-Ko Corp. v.
Coca-Cola Bottling Co., 390 F.2d 728, 732 (C.C.P.A. 1968)); TMEP § 1207.01(b)(iv).
Lastly, Applicant’s mark and the cited mark are both in standard-character
format, so we must consider that Applicant and Registrant could display their marks
in a font style, size or color identical or similar to the other, thereby heightening the
likelihood of confusion. In re Aquitaine Wine USA, LLC, No. 86928469, 2018 WL
1620989, at *5 (TTAB 2018); In re Strategic Partners Inc., No. 77903451, 2012 WL
1267930, at *3 (TTAB 2012).
Quite simply, while we acknowledge the minor difference between the marks in
terms of appearance when viewed on a side-by-side basis, that is not the test. When
considered in their entireties, and against the backdrop of fallibility of memory,
Applicant’s mark TRIACTIVE mark and the cited registered TRIACTIV mark are
highly similar in appearance, sound and connotation, and convey a similar overall
commercial impression, notwithstanding the additional letter “e” at the end of
Applicant’s mark.

Serial No. 98745742
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Accordingly, we find that the first DuPont factor strongly favors a finding of
likelihood of confusion.
B. Similarity of the Goods
We next turn to the comparison of the goods, the second DuPont factor. In making
our determination regarding the similarity of the goods, we must look to the goods as
identified in Applicant’s application and in the cited registration. See Stone Lion Cap.
Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (quoting Octocom
Sys., Inc. v. Hous. Comput. Servs. Inc., 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.”).
It is settled that it is not necessary that the respective goods be identical or even
competitive in order to find that they are related for purposes of our likelihood of
confusion analysis. The respective goods need only be “related in some manner and/or
if the circumstances surrounding their marketing [be] such that they could give rise
to the mistaken belief that goods emanate from the same source.” Coach Servs., 668
F.3d at 1369 (quoting 7-Eleven Inc. v. Wechsler, No. 91117739, 2007 WL 1431084, at
*10 (TTAB 2007)). Further, where virtually identical marks are involved, as we have
here, the degree of similarity between the goods that is required to support a finding
of likelihood of confusion declines. In re i.am.symbolic, llc, No. 85044494, 2015 WL

Serial No. 98745742
9
6746543, at *6 (TTAB 2015) aff’d, 866 F.3d 1315 (Fed. Cir. 2017) (citing In re Shell
Oil Co., 992 F.2d 1204, 1207 (Fed. Cir. 1993)). The issue is not whether consumers
would confuse Applicant’s goods with Registrant’s goods, but rather whether there is
a likelihood of confusion as to the source of these goods. L’Oreal S.A. v. Marcon, No.
91184456, 2012 WL 1267956, at *6 (TTAB 2012); In re Rexel Inc., No. 73241423, 1984
WL 63591, at *1 (TTAB 1984). Moreover, registration must be refused if Applicant’s
mark for any of its identified goods is likely to cause confusion with Registrant’s mark
for any of its listed goods. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir.
1983) (holding that a single good from among several may sustain a finding of
likelihood of confusion); Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335,
1336-37 (CCPA 1981) (likelihood of confusion must be found if there is likely to be
confusion with respect to any item that comes within the identification of goods or
services in the application).
To reiterate, Applicant’s goods are “Dental implants; Implant abutments for
dental purposes.” The cited registration for the standard character TRIACTIV mark
lists the following goods:
Needles for medical, surgical and veterinary purposes; surgical
instruments, namely, needle holders; syringes for medical use;
catheters, butterfly valves being specifically adapted for use with
medical cannulae; cannulae; parts and accessories for all the
aforementioned goods, namely, replacement parts and containers
specifically adapted for the disposal of medical instruments, syringes,
and contaminated medical waste.
To demonstrate that the goods are related, the Examining Attorney submitted
screenshots from various dental and medical supply company websites showing that

Serial No. 98745742
10
these companies sell both “dental implants” and either “syringes” or “catheters,” but
not necessarily under the same mark. The websites are identified below:8
• Screenshots from the website wwww.dentsplysirona.com – offering for sale
both “dental implants” and “syringes.”
• Screenshots from the website www.henryschein.com - offering for sale both
“dental implants” and “syringes.”
• Screenshots from the website www.net32.com – offering for sale both
“dental implants” and “syringes.”
• Screenshots from the website www.shop.benco.com – offering for sale both
“dental implants” and “catheters.”
• Screenshots from the website www.shopwhitecap.com – offering for sale
both “dental implants” and “catheters.”
• Screenshots of the website www.supplyclinic.com – offering for sale both
“dental implants” and “catheters.”
• Screenshots of the website www.pattersondental.com – offering for sale
both “dental implants” and “catheters.”
• Screenshots of the website www.frontierdental.com – offering for sale both
“dental implants” and “catheters.”
While these websites do not demonstrate that the parties’ respective goods are
sold under the same mark, they nonetheless demonstrate that relevant consumers
8 March 14, 2025 Non-Final Office Action, TSDR pp. 11-50; July 2, 2025 Final Office Action,
TSDR pp. 8-51.

Serial No. 98745742
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have become accustomed to seeing both “dental implants” and either “syringes” or
“catheters” sold by the same entity. This evidence is relevant to our relatedness
analysis. See Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 1267 (Fed.
Cir. 2002) (evidence that “a single company sells the goods . . . of both parties, if
presented, is relevant to a relatedness analysis”); Recot Inc. v. M.C. Becton, 214 F.3d
1322, 1328 (Fed. Cir. 2000) (in considering whether pet and human food are related,
the Board erred in not considering evidence that “several large [third-party]
companies produce and sell both pet and human food”).
Moreover, it is common knowledge that dental professionals employ needles and
syringes, as well as intravenous catheters, to administer local anesthetics for various
dental procedures, including the fitting and placement of “dental implants.” Thus,
relevant consumers of the parties’ respective goods may perceive them as
complementary in nature. See In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d
1565, 1567 (Fed. Cir. 1984) (complementary use has long been recognized as a
relevant consideration in determining a likelihood of confusion). At any rate, the
question is not whether purchasers can differentiate the goods themselves, but rather
whether purchasers are likely to confuse the source of the goods. Alfacell Corp. v.
Anticancer Inc., No. 92032202, 2004 WL 1631116, at *4 (TTAB 2004).
We find that the evidence of record amply demonstrates that Applicant’s goods
and Registrant’s goods are related for likelihood of confusion purposes. Thus, the
second DuPont factor favors a finding of likelihood of confusion.

Serial No. 98745742
12
C. Similarity of Trade Channels and Classes of Purchasers
We next consider established, likely-to-continue channels of trade, the third
DuPont factor. Because there are no limitations as to channels of trade or classes of
purchasers in either Applicant’s application or the cited registration and the
identified goods are related, we must presume that the goods identified in Applicant’s
applications and the cited registration travel through all normal and usual trade
channels for such goods, and that they are sold to all classes of prospective purchasers
for those goods. Stone Lion Cap., 746 F.3d at 1323; see also Coach Servs., 668 F.2d at
1370 (absent limitation “goods are presumed to travel in all normal channels ... for
the relevant goods”).
Applicant argues that there is no overlap between the channels of trade because
Applicant offers only dental products whereas Registrant offers only medical products
not used in the field of dentistry.9 Additionally, Applicant contends that, to the best
of its knowledge, Registrant does not even sell any of its goods in the United States.10
Applicant’s arguments are unavailing. First, the identification of goods set forth
in the cited registration is broadly-worded to encompass medical products used in
dentistry and that could be offered to dental professionals. Again, we must consider
the goods as identified in the application and cited registration, not on any extrinsic
evidence of use. Stone Lion Cap., 746 F.3d at 1323 (“It was proper, however, for the
9 See June 6, 2025 Response to Office Action, TSDR p. 1; September 11, 2025 Request for
Reconsideration, TSDR p. 1; October 1, 2025 Request for Reconsideration, TSDR PDF p. 1;
Applicant’s Appeal Brief, pp. 3, 5, 6 TTABVUE 4, 6.
10 See September 11, 2025 Request for Reconsideration, TSDR p. 1; October 1, 2025 Request
for Reconsideration, TSDR p. 2; Applicant’s Appeal Brief, TSDR p. 5, 6 TTABVUE 6.

Serial No. 98745742
13
Board to focus on the application and registrations rather than on real-world
conditions, because “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.”) (citing
Octocom Sys., 918 F.2d at 942). Second, Registrant’s registration does not specify any
geographic limitations as to trade channels or classes of purchasers. Therefore,
Registrant enjoys a presumption of exclusive right to nationwide use of the registered
mark under Trademark Act Section 7(b), 15 U.S.C. § 1057(b), regardless of its actual
extent of use. Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1568 (Fed.
Cir. 1983).11
Notwithstanding the foregoing, the only probative evidence relating to the trade
channels through which the goods at issue travel is the third-party website evidence
submitted by the Examining Attorney discussed above. This evidence shows that
Applicant’s goods and Registrant’s goods are the type of goods that may be provided
in the same online marketplace to similar or overlapping purchasers. Therefore, the
third DuPont factor also weighs in favor of finding a likelihood of confusion.
D. Sophistication of the Consumers
The fourth DuPont factor considers the “conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ v. careful, sophisticated purchasing.” DuPont, 476
F.2d at 1361. Applicant argues that the target customers for Applicant’s products are
11 To the extent Applicant is arguing that Registrant has not made any use of its mark in
U.S. commerce, that would constitute an impermissible collateral attack on the cited
registration. While appropriate for a petition for cancellation based on abandonment or
nonuse, such an argument is not appropriate or permissible in this ex parte proceeding. In re
Dixie Restaurants Inc., 105 F.3d 1405, 1408 (Fed. Cir. 1997).

Serial No. 98745742
14
dental professionals who are unlikely to confuse the compared marks because they
are sophisticated purchasers.12
While we acknowledge that Applicant’s goods are directed to dental professionals,
we nonetheless observe that, even if customers of Applicant’s goods are regarded as
sophisticated and discriminating consumers who select Applicant’s products and buy
them with care rather than on impulse, the fact that purchasers are sophisticated or
knowledgeable in a particular field does not necessarily mean that they are
sophisticated or knowledgeable in the field of trademarks or immune from source
confusion. See, e.g., Shell Oil, 922 F.2d at 1208 (indicating that “even sophisticated
purchasers can be confused by very similar marks”); Wincharger Corp. v. Rinco, Inc.,
297 F.2d 261, 264 (CCPA 1962) (“It is true that in most instances technicians would
use the products of either party and they are a discriminating group of people but
that does not eliminate the likelihood of purchaser confusion here. Being skilled in
their own art does not necessarily preclude their mistaking one trademark for
another when the marks are as similar as those here in issue, and cover merchandise
in the same general field.”); In re Decombe, No. 73592586, 1988 WL 252337, at *3
(TTAB 1988).
This is especially true here where the marks at issue are highly similar, the goods
are related and the trade channels overlap. “That the relevant class of buyers who
may exercise care does not necessarily impose on that class the responsibility of
12 See September 11, 2025 Request for Reconsideration, TSDR p. 1; October 1, 2025 Request
for Reconsideration, TSDR p. 1; Applicant’s Appeal Brief, pp. 2-3, 5-7, 6 TTABVUE 3-4, 6-7.

Serial No. 98745742
15
distinguishing between similar trademarks for similar goods. ‘Human memories even
of discriminating purchasers . . . are not infallible.’” In re Rsch. & Trading Corp., 793
F.2d 1276, 1279 (Fed. Cir. 1986) (quoting Carlisle Chem. Works, Inc. v. Hardman &
Holden Ltd., 434 F.2d 1403, 1406 (CCPA 1970)); In re Wilson, No. 75285881, 2001
WL 58395, at *3 (TTAB 2001) (where marks are very similar and goods related,
confusion may be likely even among sophisticated purchasers).
Based on the evidence of record, we find this factor slightly favors a finding that
confusion is not likely.
E. Actual Confusion
The seventh DuPont factor considers the “nature and extent of any actual
confusion.” DuPont, 476 F.2d at 1361. The eighth DuPont factor contemplates the
“length of time during and conditions under which there has been concurrent use
without evidence of actual confusion.” Id. Applicant argues that it has not
experienced competition or been informed of any marketplace confusion with the cited
marks.13
“[A] showing of actual confusion is not necessary to establish a likelihood of
confusion.” Herbko Int’l, 308 F.3d at 1164. In the context of an ex parte appeal, where
there has been no opportunity for evidence of actual confusion to be presented by
Registrant, the probative value of evidence purporting to show the absence of actual
confusion is limited. See Majestic Distilling, 315 F.3d at 1317 (“The lack of evidence
13 See September 11, 2025 Request for Reconsideration, TSDR p. 1 and October 1, 2025
Request for Reconsideration, TSDR F p. 2.

Serial No. 98745742
16
of actual confusion carries little weight, especially in an ex parte context.”) (internal
citation omitted). 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 the cited mark. Citigroup, Inc. v. Cap. City Bank Grp., Inc., No. 91177415, 2010
WL 595586, at *17 (TTAB 2010), aff’d 637 F.3d 1344 (2011); 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).
Here, there is no evidence of record as to the amount and extent of Applicant’s
sales and advertising of Applicant’s identified goods under its involved mark; or the
scope and extent of Registrant’s use of its cited mark in connection with the goods
listed in the cited registration.
Thus, the seventh and eighth DuPont factors are neutral.
III. Balancing the Factors
We have considered all of the arguments and evidence of record and all relevant
DuPont factors. We find that (1) the marks at issue are highly similar, (2) Applicant’s
and Registrant’s goods are related, and (3) the parties’ respective goods travel, at a
minimum, in overlapping trade channels and are offered to overlapping classes of

Serial No. 98745742
17
consumers. The seventh and eighth DuPont factor are neutral. While the fourth
DuPont may slightly weigh against a finding of likelihood of confusion, it is
outweighed by the highly similar marks at issue, the relatedness of the goods and the
overlapping trade channels and classes of purchasers. See HRL Assocs. Inc. v. Weiss
Assocs. Inc., No. 91075632, 1989 WL 274391, at *4 (TTAB 1989), aff’d, Weiss Assocs.,
Inc. v. HRL Assocs., Inc., 902 F.2d 1546 (Fed. Cir. 1990) (similarities of goods and
marks outweigh sophisticated purchasers, careful purchasing decision, and expensive
goods).
As such, we conclude that Applicant’s standard character mark TRIACTIVE, as
used in connection with the identified goods, so resembles the cited mark TRIACTIV
(also in standard characters) for the listed goods in the cited registration as to be
likely to cause confusion or mistake, or to deceive under Section 2(d) of the Trademark
Act, notwithstanding any purchaser sophistication.
Decision: The refusal to register Applicant’s TRIACTIVE mark under Section
2(d) of the Trademark Act is affirmed.