Top Tobacco, LP v. Shenzhen First Union Technology Co., LTD.

This Opinion is Not a
Precedent of the TTAB
Mailed: August 20, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Top Tobacco, L.P.
v.
Shenzhen First Union Technology Co., Ltd.
_____
Opposition No. 91293320
_____
Antony J. McShane, Michael G. Kelber, Kara C. Michels, Andrew S. Fraker, and
Joseph B. Sherling of Neal, Gerber & Eisenberg, LLP for Top Tobacco, L.P.
Nazly Eileen Bayramoglu and Tim B. O’Keeffe of Bayramoglu Law Offices LLC for
Shenzhen First Union Technology Co., Ltd.
_____
Before Larkin, Thurmon, and Elgin,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
Shenzhen First Union Technology Co., Ltd. (“Applicant”) seeks registration on the
Principal Register of the stylized mark shown below
for the following goods in International Class 34:

Opposition No. 91293320
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Cartomizers, namely, combination electronic cigarette
refill cartridges sold empty and atomizers, sold as a
component of electronic cigarettes; Cartridges sold filled
with propylene glycol for electronic cigarettes; Devices for
heating tobacco for the purpose of inhalation; Devices for
heating tobacco substitutes for the purpose of inhalation;
Electronic cigarette atomizers sold empty; Electronic
cigarette cases; Electronic cigarettes; Liquid nicotine
solutions for use in electronic cigarettes; Oral vaporizers
for smokers; Tobacco substitutes not for medical purposes.1
Top Tobacco, L.P. (“Opposer”) opposes registration of Applicant’s mark on two
grounds: (1) under Section 2(d) of the Trademark Act, 15 U.S.C. 1052(d), on the
ground that Applicant’s mark so resembles Opposer’s previously-used mark TOP,
registered in standard characters on the Principal Register for smoking tobacco and
various smoking articles, as to be likely to cause confusion when used in connection
with the goods identified in the opposed application, and (2) on the ground that
Applicant lacked a bona fide intention to use the mark in commerce in connection
with the goods identified in the opposed application when it was filed.
Both parties submitted evidence, but only Opposer filed a brief.2 We sustain the
opposition based on Opposer’s Section 2(d) claim, and do not reach its other claim.
1 Application Serial No. 98198613 was filed on September 26, 2023 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce. Applicant describes its mark as follows: “The mark consists of
the literal element ‘HOP’ in stylized font and partitioned into different shapes.” Color is not
claimed as a feature of the mark.
2 Only Opposer was required to file a brief under Trademark Rule 2.128(a)(1), 37 C.F.R. §
2.128(a)(1). Opposer bears the burden of proving that Applicant is not entitled to the
registration that it seeks “even in the absence of contrary evidence or argument.” DC Comics
v. Cellular Nerd LLC, No. 91246950, 2022 WL 17832492, at *9 (TTAB 2022) (citation
omitted).
Citations in this opinion to Opposer’s brief and other materials in the case docket refer to
TTABVUE, the Board’s online docketing system. The number preceding TTABVUE
corresponds to the docket entry number, and any numbers following TTABVUE refer to the

Opposition No. 91293320
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I. Record
The record consists of the pleadings,3 the file history of the opposed application,
by operation of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), and the following
materials submitted by the parties during their respective trial and rebuttal periods:
Opposer
• Declaration of Sachin Lele, Opposer’s Executive Vice President and General
Counsel, and Exhibits A-H thereto, 17 TTABVUE 1-331; 18 TTABVUE 1-
192;4
• First Notice of Reliance on Internet materials, 12 TTABVUE 1-124;
• Second Notice of Reliance on Internet materials, 13 TTABVUE 1-336;
• Third Notice of Reliance on Internet materials, 14 TTABVUE 1-276;
• Fourth Notice of Reliance on United States Patent and Trademark Office
(“USPTO”) records regarding third-party registrations, 15 TTABVUE 1-
224;
page(s) of the docket entry where the cited materials appear. Opposer’s redacted public brief
appears at 26 TTABVUE, and its unredacted confidential brief appears at 27 TTABVUE.
Except where otherwise indicated, we will cite to Opposer’s public brief at 26 TTABVUE.
3 The operative pleadings are Opposer’s Amended Notice of Opposition, 5 TTABVUE 10-34,
and Applicant’s Answer to Amended Notice of Opposition, 11 TTABVUE 2-6. In its Answer,
Applicant denied the salient allegations in Opposer’s Amended Notice of Opposition, and
interposed several self-styled “Affirmative Defenses,” id. at 3-5, and a purported “Reservation
of Rights” to add additional defenses. Id. at 5. The purported “Affirmative Defenses” are
merely amplifications of Applicant’s denials of the allegations in the Amended Notice of
Opposition, and are not true affirmative defenses. Candyverse, LLC v. Zeeth Ltd., No.
91289595, 2024 WL 3514726, at *2 n.4 (TTAB 2024). “[S]uch amplifications are generally
permitted where their inclusion will not prejudice the adverse party, but rather will provide
further notice of the basis for a claim or defense.” Id. (quotation and quotation marks
omitted). The purported “Reservation of Rights” is a nullity. Keystone Consolidated Indus.,
Inc. v. Franklin Inv. Corp., No. 92066927, 2024 WL 3771168, at *1 n.5 (TTAB 2024) (citation
omitted).
4 Portions of the Lele Declaration were designated as confidential under the Board’s Standard
Protective Order, and an unredacted version of the Lele Declaration was filed under seal at
19 TTABVUE and 20 TTABVUE. Except where otherwise indicated, we will cite to the Lele
Declaration at 17-18 TTABVUE.

Opposition No. 91293320
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• Fifth Notice of Reliance on Applicant’s initial and supplemental responses
to Opposer’s discovery requests, 16 TTABVUE 1-94;
• Sixth Notice of Reliance on Internet materials, filed during Opposer’s
rebuttal period, 24 TTABVUE 1-152; and
• Declaration of Jeremy Schoening, the Director of Trade Marketing and
Customer Service for Republic Brands LP, the master distributor for
smokers’ articles sold under Opposer’s TOP mark, filed during Opposer’s
rebuttal period, 25 TTABVUE 1-7.
Applicant
• Declaration of Shimin Zhang, Applicant’s Senior Visual Communication
Designer, and Exhibits A-FF thereto, 22 TTABVUE 1-614;5 and
• Notice of Reliance on Internet materials, Opposer’s discovery responses,
and official records, 21 TTABVUE 1-309.
II. The Parties
Opposer currently uses its TOP mark in connection with articles that allow
consumers to roll their own tobacco cigarettes. Lele Decl. ¶ 6 (17 TTABVUE 5).
Opposer owns valid and subsisting registrations of its standard-character TOP mark
for “smoking tobacco;” “cigarette rolling papers;” “cigarette making machines;”
“cigarette rolling machines;” “cigarette tubes;” “cigarette injector machines;”
“cigarette filter tips;” and “smokers’ rolling trays.” Amended Not. of Opp. ¶ 4, Ex. A
(5 TTABVUE 11, 14-34); Lele Decl. ¶ 12 (17 TTABVUE 7).
Applicant, a limited liability company headquartered in Shenzhen, China, is a
developer and manufacturer of electronic smoking products, including heating
5 Certain Exhibits to the Zhang Declaration were designated as confidential under the
Board’s Standard Protective Order, and an unredacted version of the Zhang Declaration was
filed under seal at 23 TTABVUE. Except where otherwise indicated, we will cite to the Zhang
Declaration at 22 TTABVUE.

Opposition No. 91293320
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devices, electronic cigarettes, cartridges, and related consumables that are sold in
markets around the world. Zhang Decl. ¶ 3 (22 TTABVUE 2). Applicant owns United
States registrations of other marks for such goods. Zhang Decl. ¶ 40, Exs. G-U, Y-Z,
AA, DD (22 TTABVUE 9-10, 501-62, 575-86, 594-99).
III. Entitlement to a Statutory Cause of Action
“Entitlement to a statutory cause of action is an element of the plaintiff’s case in
every inter partes proceeding.” El Roblar Inv. Prop. LLC v. Roe, No. 91272200, 2025
WL 2718983, at *18 (quotation and quotation marks omitted). “Section 13 of the
Trademark Act, 15 U.S.C. § 1063, ‘provides that ‘[a]ny person who believes that he
would be damaged by the registration of a mark . . . may . . . file an opposition with
the USPTO.’” Id. (quoting Curtin v. United Trademark Holdings, Inc., 137 F.4th
1359, 1362 (Fed. Cir. 2025) (citing 15 U.S.C. § 1063), cert. denied, 2026 WL 1052056
(Apr. 20, 2026)). “‘[A] plaintiff may oppose registration of a mark when (1) [its]
interests are within the zone of interests protected by the statute [i.e., it has a ‘real
interest’ in the outcome of the proceeding)] and (2) [it] has a reasonable belief in
damage that would be proximately caused by registration of the mark in violation of
the opposition statute.” Id. (quoting Curtin, 137 F.4th at 1367) (citing Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. 118, 129-34 (2014)).
Opposer argues that it “has standing to oppose the subject applications [sic] to
register the HOP mark on the basis of its long-standing prior rights in the TOP mark,

Opposition No. 91293320
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including but not limited to its registrations therefor.” 26 TTABVUE 23.6 We agree
that these registrations establish Opposer’s entitlement to a statutory cause of action.
Opposer properly made of record its five valid and subsisting registrations of TOP
in standard characters for smoking tobacco and various smoking articles, Amended
Not. of Opp. ¶ 4, Ex. A (5 TTABVUE 11, 14-34), and thus established “the basis of a
likelihood-of-confusion claim that is not wholly without merit.” Sawstop, LLC v.
Felder KG, No. 91255905, 2025 WL 2400134, at *3 (TTAB 2025) (citation omitted).
“Because Opposer has established its entitlement to a statutory cause of action for its
asserted likelihood-of-confusion claim, it may also assert its claim based on lack of
bona fide intent.” Id. at *4.
IV. Analysis of Opposer’s Section 2(d) Claim
“Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), prohibits registration of
a mark that “[c]onsists of or comprises a mark which so resembles a mark registered
in the Patent [and] Trademark Office, or a mark or trade name previously used in
the United States by another and not abandoned, as to be likely, when used on or in
connection with the goods . . . of the applicant, to cause confusion, or to cause mistake,
or to deceive.” Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No. 91270181,
2024 WL 1638376, at *4 (TTAB 2024) (quoting 15 U.S.C. § 1052(d)).
6 “We now refer to standing as entitlement to a statutory cause of action.” El Roblar, 2025
WL 2718983, at *20 n.46 (quoting Univ. of Ky. v. 40-0, LLC, No. 91224310, 2021 WL 839189,
at *4 (TTAB 2021) (“Despite the change in nomenclature, our prior decisions and those of the
U.S. Court of Appeals for the Federal Circuit [addressing standing] remain equally
applicable.”)).

Opposition No. 91293320
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“To prevail on its Section 2(d) claim, Opposer must show by a preponderance of
the evidence that it has either a registration of or priority in its [TOP] mark, and that
Applicant’s use of its mark is likely to cause confusion, mistake, or deception
regarding the source of the [goods] identified in its Application.” Id. (citation omitted).
A. Priority
“Because Opposer properly made of record its valid and subsisting pleaded
registrations, and Applicant did not counterclaim to cancel Opposer’s pleaded
registrations, priority is not at issue for the marks and goods . . . identified therein.”
Heil Co. v. Tripleye GmbH, No. 91277359, 2024 WL 4925901, at *16 (TTAB 2024)
(citing King Candy, Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1402-03 (CCPA
1974)).
B. Likelihood of Confusion
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. DuPont
DeNemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023). 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).
“Two key factors in every Section 2(d) case are the first two factors regarding the
similarity or dissimilarity of the marks and the goods or services, because the
fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences

Opposition No. 91293320
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in the essential characteristics of the goods and differences in the marks.” DC Comics,
2022 WL 17832492, at *10 (internal quotations and quotation marks omitted).
Opposer argues that the “most relevant duPont factors in this proceeding are: (1)
the strength of the TOP mark; (2) the similarity of the marks at issue; (3) the closely
related and/or complementary nature of the goods; (4) the identical channels of trade
and classes of intended consumers; and (5) the level of care involved in the purchase
of the products.” 26 TTABVUE 24. In addition to the key first two DuPont factors,
Opposer’s list includes the third DuPont factor, the “similarity or dissimilarity of
established, likely-to-continue trade channels,” DuPont, 476 F.2d at 1361, the fourth
DuPont factor, the “conditions under which and buyers to whom sales are made, i.e.
‘impulse’ vs. careful, sophisticated purchasing,” id., and the fifth DuPont factor, the
“fame of the prior mark (sales, advertising, length of use).” Id.
Before we analyze the relevant DuPont factors, we note that Opposer’s brief
frequently cites Top Tobacco, L.P. v. ShenZhen Woody Vapes Tech. Co., No. 91270221,
2024 WL 4925922 (TTAB Nov. 14, 2024) (non-precedential) (“Woody Vapes”),7 26
TTABVUE 19, 29, 30-31, 32, 33, 34, a non-precedential decision issued in late 2024
in which the Board sustained Opposer’s opposition under Section 2(d) to registration
of the mark TPP in standard characters and the mark shown below
7 Although the Woody Vapes litigation involved a party with the word “ShenZhen” in its
corporate name, Applicant was not the defendant in that case and there is no evidence of a
relationship between the defendant and Applicant. As discussed below, numerous companies
in the vaping equipment industry are located in Shenzhen, China.

Opposition No. 91293320
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for goods identified as
Boxes for electronic cigarettes and electronic cigarette
accessories; Cigarette holders; Cigarette tubes; Devices for
heating tobacco substitutes for the purpose of inhalation;
Electronic cigarette atomizers sold empty; Electronic
cigarette liquid (e-liquid) comprised of flavorings in liquid
form, other than essential oils, used to refill electronic
cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid
(e-liquid) comprised of vegetable glycerin; Electronic
cigarette refill cartridges sold empty; Electronic cigarettes;
Electronic cigarettes and oral vaporizers for smokers; Oral
vaporizers for smokers; Tobacco substitutes not for medical
purposes; Tobacco, cigars and cigarettes.
Woody Vapes, 2024 WL 4925922, at *1. Opposer cites the case in its arguments on a
number of the DuPont factors. 26 TTABVUE 29 (first factor), 19, 30-32 (second
factor), 33 (third factor), 34-35 (fourth factor).
“Since January 23, 2007, the Board has permitted citation to any Board decision
or interlocutory order, although a decision or order designated as not precedential is
not binding upon the Board, but may be cited for whatever persuasive value it might
have.” DC Comics, 2022 WL 17832492, at *3 (citing TBMP § 101.03). “In general,
however, the Board discourages the citation to non-precedential opinions.” Id.
(citation omitted). “Citing nonprecedential cases should be done judiciously and
rarely” because “a Board opinion or decision not designated as precedent involves
application by a panel of existing law and policy to only the factual record and issues
presented in an individual case, and is not controlling legal authority for Board
attorneys and judges.” Id.
With these principles in mind, we believe that Opposer’s citation of the Woody
Vapes decision is appropriate here. That case involved a Section 2(d) claim based on

Opposition No. 91293320
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Opposer’s TOP mark against an application to register a mark for vaping equipment
of the sort that is involved here, in the context of what appears to be a substantially
similar factual record.8 We are, of course, not bound by the Woody Vapes panel’s
analysis and findings, but we believe that this decision provides useful guidance here,
and in the interest of consistency in the Board’s decision-making, we will consider the
case “for whatever persuasive value it might have,” DC Comics, 2022 WL 17832492,
at *3, as we decide Opposer’s Section 2(d) claim against Applicant’s different mark
here based on the record in this case.
1. The Fifth DuPont Factor
“Two of the DuPont factors (the fifth and the sixth) consider [the] strength” of a
plaintiff’s mark.” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023). “The
fifth DuPont factor, ‘[t]he fame of the prior mark (sales, advertising, length of use),’ .
. . is a measure of the mark’s strength in the marketplace.” Id. (quoting DuPont, 476
F.2d at 1361 and citing Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC,
857 F.3d 1323, 1325 (Fed. Cir. 2017)). “Fame is ‘a matter of degree that varies along
a spectrum from very strong to very weak,’ and relevant factors include ‘sales,
advertising, length of use of the mark, market share, brand awareness, licensing
activities, and variety of goods bearing the mark.’” Fuente Mktg. Ltd. v. Vaporous
Techs, LLC, 172 F.4th 1337, 1345 (Fed. Cir. 2026) (quoting Coach Servs., Inc. v.
8 For example, Sachin Lele, Opposer’s primary fact witness here, also was Opposer’s primary
fact witness in that case, Woody Vapes, 2024 WL 4925922, at *3, and Opposer’s notices of
reliance in that case appear to cover much of the same subject matter as their counterparts
here. Id.

Opposition No. 91293320
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Triumph Learning LLC, 668 F.3d 1356, 1367 (Fed. Cir. 2012) (cleaned up)). We will
begin our DuPont analysis with the fifth factor because the “[f]ame of an opposer’s
mark or marks, if it exists, plays a ‘dominant role in the process of balancing the
DuPont factors,’” Bose Corp. v. OSC Audio Prods., Inc., 293 F.3d 1367, 1371 (Fed. Cir.
2002) (quoting Recot, Inc. v. Becton, 214 F.3d 1322, 1327 (Fed. Cir. 2000)), and
“famous marks “enjoy a wide latitude of legal protection.” Id. (quoting Recot, 214 F.3d
at 1327).
“Fame for confusion purposes arises as long as a significant portion of the relevant
consuming public . . . recognizes the mark as a source indicator.” Joseph Phelps
Vineyards, 857 F.3d at 1324-25 (quoting Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1375 (Fed. Cir. 2005)). “[T]he
proper legal standard for evaluating the fame of a mark under the fifth DuPont factor
is the class of customers and potential customers of a product or service, and not the
general public.” Palm Bay, 396 F.3d at 1375.
“While dilution fame is an either/or proposition—fame either does or does not
exist—likelihood of confusion fame ‘varies along a spectrum from very strong to very
weak.’” Joseph Phelps Vineyards, 857 F.3d at 1325 (quoting Palm Bay, 396 F.3d at
1375). The Board has assessed the “fame” of the prior mark in Section 2(d) cases in
terms of its commercial “strength.” Monster Energy Co. v. Lo, No. 91225050, 2023 WL
417620, at *10 (TTAB 2023).
The commercial strength of a mark
may be measured indirectly “by the volume of sales and
advertising expenditures in connection with the goods sold

Opposition No. 91293320
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under the marks, for example, and other factors such as
length of time of use of the mark; widespread critical
assessments; notice by independent sources of the products
identified by the marks; and the general reputation of the
products and services.”
Id. at *11 (quoting Weider Publ’ns, LLC v. D & D Beauty Care Co., No. 91199352,
2014 WL 343269, at *6 (TTAB 2014)). “Because of the extreme deference that we
accord a famous mark, it is the duty of the party asserting that its mark falls on the
higher end of the fame/commercial strength spectrum to clearly prove it.” Heil Co.,
2024 WL 4925901, at *19 (quoting Coach Servs., 668 F.3d at 1367 (internal quotation
marks and citation omitted)).
Opposer argues that “[t]he TOP mark is a conceptually and a commercially strong
mark.” 26 TTABVUE 25. According to Opposer, “it is an arbitrary designation when
used with smokers’ articles, and is therefore considered inherently and conceptually
strong.” Id.9
With respect to commercial strength, Opposer argues that it “and its predecessors
have been marketing and selling smoker’s articles continuously under the TOP mark
since approximately 1900,” id. (citing Lele Decl. ¶ 7 (17 TTABVUE 5)); that “[o]ver
9 In Fuente Mktg., the Federal Circuit stated that consideration of the conceptual strength or
weakness of a mark is appropriate under the sixth DuPont factor, the “number and nature of
similar marks in use on similar goods,” DuPont, 476 F.2d at 1361, not under the fifth factor.
Fuente Mktg., 172 F.4th at 1345 n.3. Applicant offers no evidence here regarding the sixth
factor, which is invoked by defendants to contract the scope of protection of the plaintiff’s
mark “by adducing evidence of ‘[t]he number and nature of similar marks in use on similar
goods.’” Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, at *11
(TTAB 2022) (quoting DuPont, 476 F.2d at 1361). In Woody Vapes, the Board considered the
inherent conceptual weakness of the TOP mark in connection with evidence under the sixth
factor, Woody Vapes, 2024 WL 4925922, at *11, finding that “the TOP mark has some
conceptual weakness as it may be understood as laudatorily suggestive of the quality of
Opposer’s goods.” Id.

Opposition No. 91293320
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the course of more than a century of use, the TOP mark has established extensive
consumer recognition and goodwill,” id. at 26 (citing Lele Decl. ¶ 7 (17 TTABVUE 5));
that Opposer and its master distributor Republic Brands “invest significant time and
resources annually in promoting TOP products through permitted means,” id. (citing
Lele Decl. ¶¶ 14-16 (17 TTABVUE 9-10)); that “Republic Brands extensively
advertises TOP branded products to wholesalers and retailers through its nationwide
sales force, at trade shows, and through monthly promotional fliers, fact sheets and
price lists delivered to actual and potential distributor and retailer customers,” id.
Lele Decl. ¶ 14 (17 TTABVUE 9-10)); that “TOP branded products are sold in
convenience stores, gas stations, mini-marts, tobacco stores and outlets, mass
merchandisers, cash-and-carry outlets, and other retail locations” through more than
220,000 retail outlets nationwide, id. (citing Lele Decl. ¶ 18 (17 TTABVUE 11-12));
and that TOP products are also widely available online, through retailer websites as
well as third-party e-stores like Amazon and Alibaba. Id. (citing Lele Decl. ¶ 18 (17
TTABVUE 11-12)).
Opposer further states that between 2011 and the time of trial in late 2025,
Republic Brands spent in the low to mid-eight figures to promote TOP branded
products, id. at 27 (citing Lele Decl. ¶ 19 (19 TTABVUE 12)), and that during that
same period, sales of TOP branded products totaled in the mid-nine figures. Id. (citing
Lele Decl. ¶ 20 (19 TTABVUE 12)).10
10 The exact figures were designated as confidential. We have described them in general
ranges because we must “discuss the evidence of record, unless there is an overriding need
for confidentiality, so that the parties and a reviewing court will know the basis of the Board’s

Opposition No. 91293320
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Opposer also cites its enforcement efforts, claiming that “[o]ver the past 10 years,
[Opposer] has successfully enforced its rights against more than 50 applicants for
and/or users of confusingly similar marks for smokers’ articles, including electronic
cigarettes, vaporizers and accessories.” Id. (citing Lele Decl. ¶ 21 (17 TTABVUE 12-
13)).
The fifth factor evidence presented by Opposer here is virtually identical to the
fifth factor evidence presented by Opposer in Woody Vapes, 2024 WL 4925922, at *8-
9,11 in which the Board found that “Opposer’s TOP mark has some commercial
strength in connection with tobacco smoking products, particularly in the make-your-
own market,” and that “Opposer’s evidence of sales, marketing and length of time in
the marketplace indicate that a significant number of consumers are familiar with
the brand.” Id. at *11.
The record in this case supports a similar finding here. We are not concerned with
recognition of the TOP mark among all of the millions of tobacco smokers in the
United States, but rather among the presumably much smaller group who roll their
own cigarettes, a cohort described in various materials in the record as the “roll-your-
own” (“RYO”) or “make-your-own” (“MYO”) market. Although Opposer’s witness Lele
decision[ ].” El Roblar, 2025 WL 2718983, at *2 n.13 (citing Noble House Home Furnishings
LLC v. Floorco Enters., LLC, No. 92057394, 2016 WL 3357265, at *4 n.21 (TTAB 2016)).
11 As noted above, in Woody Vapes, the Board also considered sixth factor evidence offered by
the applicant, Woody Vapes, 2024 WL 4925922, at *10-11, as well as survey evidence offered
by both parties. Id. at *14-18. The Board “decline[d] to give substantial weight to the
surveys,” and stated that “when all survey evidence is weighed, we do not find it points
strongly either in favor of finding confusion likely or unlikely.” Id. at *18. As noted above,
Applicant offered no sixth factor evidence in this case.

Opposition No. 91293320
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did not specify Opposer’s position within the RYO market in terms of market share
or otherwise, Opposer’s sales figures between 2011 and late 2025 are substantial on
their face, and the TOP brand is described in promotional flyers and other materials
directed to retailers, and authenticated by the witness, as the “#1 brand in the U.S.,”
the “#1 Selling Brand in U.S.A.,” “the Nation’s leading RYO/MYO Category
Manager,” “America’s No. 1 favorite,” and the “#1 Selling Brand Family in the
Southeast.” Lele Decl. ¶¶ 14, 17, Exs. A, F (17 TTABVUE 9-11, 106-07, 109, 111; 18
TTABVUE 167-68).12
In addition to Opposer’s substantial sales since 2011, Opposer’s predecessor-in-
interest R. J. Reynolds and Opposer together have used the TOP mark in the RYO
market for more than a century, Lele Decl. ¶¶ 7-8 (17 TTABVUE 5-6), and Opposer’s
TOP goods are widely distributed in the United States through a variety of trade
channels. Lele Decl. ¶¶ 8, 18 (17 TTABVUE 6, 11). As in Woody Vapes, we find that
Opposer’s fifth factor evidence is sufficient to show that Opposer’s TOP mark has
“some commercial strength” in the RYO market. Woody Vapes, 2024 WL 4925922, at
*11.
As noted above, the Board also found in Woody Vapes that Opposer’s TOP mark
“has some conceptual weakness as it may be understood as laudatorily suggestive of
12 Webpages made of record under Opposer’s First Notice of Reliance similarly describe
Opposer’s TOP-O-MATIC cigarette rolling machine, which also bears the TOP mark, as the
“best-selling cigarette rolling machine in the world!,” 12 TTABVUE 106-07, but “Internet
evidence filed by way of a notice of reliance, without further witness testimony, will be
considered only for what it shows on its face, rather than for the truth of what is printed
therein, which constitutes hearsay.” RLP Ventures, LLC v. Panini Am., Inc., No. 91268816,
2023 WL 6442609, at *5 n.17 (TTAB 2023).

Opposition No. 91293320
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the quality of Opposer’s goods.” Woody Vapes, 2024 WL 4925922, at *11. This finding
was not based on the applicant’s sixth factor evidence in that case, but rather on the
inherent nature of the TOP mark, because “the plain meaning of the word ‘top’ can
be understood to suggest a higher quality . . . .” Id.13
The record in this case supports a similar finding here. The record contains several
promotional flyers authenticated by Opposer’s witness Lele that state “TOP . . . Our
name says it all!” One such flyer is shown below:
Lele Decl. ¶ 14, Ex. A (17 TTABVUE 9-10, 95).14 The phrase “TOP . . . Our name says
it all!” could be understood as touting the highest quality and commercial success of
13 The Board may take judicial notice of dictionary definitions, including definitions from
online dictionaries that exist in printed format or have fixed regular editions. See, e.g., In re
Nursecon, LLC, Ser. No. 88052194, 2024 WL 5265079, at *10 n.64 (TTAB 2024) (citation
omitted). We take judicial notice that in its adjective form, “top” means “of the highest
quality, amount, or degree,” and that in its noun form, “top” means, inter alia, “a commonly
cylindrical or conoidal device that has a tapering point on which it is made to spin and that
is used especially as a toy.” MERRIAM-WEBSTER DICTIONARY (merriam-webster.com, last
accessed on August 19, 2026).
14 The other flyers appear in the record at 17 TTABVUE 100, 102, and 108. The mark “TOP®”
and the phrase “OUR NAME SAYS IT ALL!”® also appear together in a retailer incentive
flyer, indicating that Opposer has registered the phrase. Lele Decl. ¶ 15, Ex. D (17 TTABVUE
6; 18 TTABVUE 143).

Opposition No. 91293320
- 17 -
Opposer’s RYO products, and highlighting the laudatory nature of its TOP mark,
which according to Opposer “says it all.”15
As the Board noted in Woody Vapes, all of Opposer’s pleaded registrations of TOP
issued on the Principal Register without a showing of acquired distinctiveness, Woody
Vapes, 2024 WL 4925922, at *11, and, as a result, “we presume that [TOP] is
inherently distinctive, i.e., that it is at worst suggestive of the goods.” Heil Co., 2024
WL 4925901, at *18 (citing 15 U.S.C. § 1057(b)).16 The meaning of the adjective “top,”
and the evidence of Opposer’s own use of TOP, which could be viewed as touting the
quality of its goods, together support a finding that Opposer’s mark is somewhat
suggestive.
Based on the record here, our finding under the fifth DuPont factor is the same as
that of the Woody Vapes panel: “We find Opposer’s TOP mark is commercially strong,
albeit with some inherent weakness due to its suggestiveness of better quality.”
Woody Vapes, 2024 WL 4925922, at *12. Here, as there, “[t]hese factors, weighed
together, lead us to find that Opposer’s TOP mark is entitled to a slightly wider scope
15 To the extent that Opposer’s TOP mark is understood instead as a reference to the spinning
toy shown in this flyer and in other materials in the record, it would have no laudatory or
other suggestive significance with respect to tobacco and smoking articles.
16 Opposer also argues here that four of its five pleaded registrations of TOP have become
incontestable. 26 TTABVUE 15 (citing Lele Decl. ¶ 12 (17 TTABVUE 7)). The mark’s
“incontestable status does not render it commercially strong,” Iron Balls Int’l Ltd. v. Bull
Creek Brewing, LLC, No. 92079099, 2024 WL 2844425, at *14 (TTAB 2024) (citation omitted),
and “the fact that [O]pposer’s federally-registered trademark has achieved incontestable
status means that it is conclusively considered to be valid, but it does not dictate that the
mark is ‘strong’ for purposes of determining likelihood of confusion.” Safer, Inc. v. OMS Invs.,
Inc., No. 91176445, 2010 WL 985355, at *5 (TTAB 2012).

Opposition No. 91293320
- 18 -
of protection than that normally accorded to other inherently distinctive marks.” Id.
The fifth DuPont factor thus slightly supports a conclusion that confusion is likely.
2. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, “we consider the ‘similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.’” In re Ye Mystic Krewe of Gasparilla, No. 90522364, 2025 WL 2953731,
at *4 (TTAB 2025) (quoting DuPont, 476 F.2d at 1361). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” Sage Therapeutics,
2024 WL 1638376, at *5 (quoting In re Inn at St. John’s LLC, No. 87075988, 2018 WL
2734893, at *5 (TTAB 2018) (citation omitted), aff’d per curiam, 777 F. App’x 516
(Fed. Cir. 2019)); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732
(CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone
is likely to cause confusion.”) (citation omitted).
“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Sage Therapeutics, 2024 WL 1638376, at *5 (quoting Coach
Servs., 668 F.3d at 1368). “The focus is on the recollection of the average purchaser,
who normally ‘retains a general rather than a specific impression of marks.’” Id.
(quoting In re i.am.symbolic, llc, No. 85916778, 2018 WL 3993582, at *4 (TTAB 2018)
(citations omitted)). We agree with the Board’s analysis in Woody Vapes that
“[b]ecause the goods at issue are personal smoking products, including those for
tobacco and those for vaping, and, as discussed [below], both types may be used by

Opposition No. 91293320
- 19 -
the same class of consumers, the average consumer is an ordinary consumer of these
goods.” Woody Vapes, 2024 WL 4925922, at *12.
“[S]imilarity is not a binary factor, but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d
1340, 1344 (Fed. Cir. 2003)).
The involved marks are TOP in standard characters and the stylized mark shown
again below:
Opposer argues that “the visual similarity of the TOP and HOP marks alone is
sufficient to cause confusion” because “[b]oth marks consist of a single initial
consonant followed by the same two letters, ‘-OP.’ This shared construction creates a
strikingly similar visual impression, as the marks differ only in their first letter.” 26
TTABVUE 28. Opposer further argues that “[t]he Board has regularly held that letter
combinations where only one letter differs between the two marks are confusingly
similar based on visual similarity.” Id. (citations omitted).
According to Opposer, “[b]ecause ‘top’ and ‘hop’ are both common single-syllable
English words, consumers are likely to assume that the marks are pronounced
similarly so as to rhyme with each other,” and “[s]imilarity in sound alone is sufficient
to find that the marks are confusingly similar.” Id. at 29 (citations omitted). Opposer
argues that “the marks consist of a single rhyming syllable, differentiated only by a

Opposition No. 91293320
- 20 -
single letter,” and that the “phonetic similarity strongly supports a likelihood of
confusion.” Id.17
As to meaning, Opposer argues as follows:
Applicant’s position that the marks at issue create
different commercial impressions because the HOP mark
purportedly connotes “Heat One Puff” or “Heat on Puff,” see
Zhang Dec. ¶¶ 10-11 and 34, is not supported by any
evidence that consumers are even aware of the phrases
“Heat One Puff/Heat on Puff,” let alone that they would
perceive the HOP mark as connoting those phrases rather
than the common English word “hop.” The HOP mark does
not contain any punctuation to suggest it is an acronym
and Applicant has not submitted any evidence to indicate
that consumers in the marketplace would view HOP as an
acronym.
Id. at 30.
In the Zhang Declaration, the witness, who “personally created the mark” and
“designed the lettering and visual presentation of the logo,” Zhang Decl. ¶ 5 (22
TTABVUE 3), explained the derivation of the mark as follows:
It is not planned to be used as a plain word mark standing
alone on simple paper packaging, but rather as part of a
17 Opposer argues that Applicant “was on notice of the similarities between the TOP and HOP
marks prior to filing the Application, as Applicant’s trademark search report identified
Opposer’s TOP registrations as potentially being confusingly similar.” 26 TTABVUE 29-30
(citing Zhang Decl. ¶ 13; Ex. D (22 TTABVUE 4, 24-25)). To the extent that Opposer suggests
that this shows that Applicant acted in bad faith, we note that “[a] finding of bad faith must
be supported by evidence of an intent to confuse, rather than mere knowledge of another’s
mark or even an intent to copy.” Keystone Consolidated Indus., 2024 WL 3771168, at *27
(citation omitted). Opposer has presented no such evidence here. At the same time, to the
extent that Applicant claims good faith adoption of its mark, Zhang Decl. ¶¶ 25, 38, 43 (22
TTABVUE 6, 9-10), “good faith adoption typically does not aid an applicant attempting to
establish no likelihood of confusion.” Monster Energy, 2023 WL 417620, at *23 (citing J & J
Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 1462 (Fed. Cir. 1991) (“Whether there
is evidence of intent to trade on the goodwill of another is a factor to be considered, but the
absence of such evidence does not avoid a ruling of likelihood of confusion”) (internal citation
omitted); Eveready Battery Co. v. Green Planet, Inc., No. 91180015, 2009 WL 2176668, at *5
(TTAB 2009)).

Opposition No. 91293320
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modern, technology-focused design on electronic smoking
devices. The word “HOP” was selected because it is derived
from a phrase used internally by our team, “HEAT ONE
PUFF” or “HEAT ON PUFF.” The product uses a heating
technology that activates each time the user takes a puff,
and “HOP” was chosen to reflect that concept in a short,
modern, memorable word.
Zhang Decl. ¶¶ 9-10 (22 TTABVUE 3-4).
The Zhang Declaration addressed the similarity of the marks per se only with
respect to commercial impression, as to which the witness opined as follows:
The stylized mark and the TOP word mark also
create very different commercial impressions. The word
“HOP” begins with the letter “H” and is tied to the “HEAT
ONE PUFF” concept and modern device-based
consumption, whereas, based on my understanding, TOP
is a common English word meaning something along the
lines of “best” or “a device that has a point on which it is
made to spin” among other definitions.
Zhang Decl. ¶ 34 (22 TTABVUE 8).
We begin our analysis by considering the marks’ similarity in appearance. In its
application, Applicant describes its mark as consisting of “the literal element ‘HOP’
in stylized font and partitioned into different shapes.”18 Opposer’s TOP mark is
registered as a standard-character mark and, as such, it “‘may be presented in any
font style, size or color, including the same font, size and color’” as Applicant’s mark,
Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 WL 6072822, at *17 (TTAB
18 Applicant’s witness Zhang testified that “[i]n our design and marketing plans, the . . . mark
is used in a stylized logo format, and often together with either the PTH device mark or the
First Union company name.” Zhang Decl. ¶ 9 (22 TTABVUE 3). We cannot consider any use
of the mark in connection with other marks or Applicant’s trade name or house mark. See,
e.g., In re Aquitaine Wine USA, LLC, No. 86928469, 2018 WL 1620989, at *4 (TTAB 2018)
(“We must compare the marks as they appear in the drawings, and not on any [materials]
that may have additional wording or information.”) (citations omitted).

Opposition No. 91293320
- 22 -
2021) (quoting Aquitaine Wine, 2018 WL 1620989, at *5), and “‘in the same stylization
actually used or intended to be used by [Applicant], or one that minimizes the
differences or emphasizes the similarities between the marks.” Id. (quoting Anheuser-
Busch, LLC v. Innvopak Sys. Pty Ltd., No. 91194148, 2015 WL 5316485, at *8 (TTAB
2015) (citing Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1353 (Fed.
Cir. 2011) (“the registrant is entitled to depictions of the standard character mark
regardless of font style, size, or color, not merely ‘reasonable manners’ of depicting its
standard character mark”)).19 Accordingly, we must assume that Opposer could
depict its standard-character TOP mark in the same “stylized font partitioned into
different shapes” in which Applicant seeks to register its mark. See Look Cycle Int’l
Inc. v. Kunshan Quiye Outdoor Sports Goods Co., No. 92079409, 2024 WL 3739358,
at *9 (TTAB 2024) (“although the design element in one of Petitioner’s [LOOK] marks
is a difference, we must consider Respondent’s [standard-character BLOOKE] mark
in the stylization used in both of Petitioner’s marks”).
When confronted with a structurally-similar three-letter mark, the Woody Vapes
panel found that “[t]he obvious and primary similarity is that each mark is composed
of only three letters, with the first and last letters being the same.” Woody Vapes,
2024 WL 4925922, at *13. Here, the second and last letters are the same, and as
explained above, we must consider the visual similarity of the marks from the
19 In Woody Vapes, the Board similarly held that “Opposer is also correct that because it has
registered the TOP in standard character format, all possible representations of that mark,
including the stylization used in Applicant’s mark, must be included in our analysis.” Woody
Vapes, 2024 WL 4925922, at *14 (citing Citigroup, 637 F.3d at 1353; TRADEMARK MANUAL
OF EXAMINING PROCEDURE (“TMEP”) § 1207.01(c)(iii) (May 2024)).

Opposition No. 91293320
- 23 -
standpoint of a consumer with a general “mind’s eye” recollection of Opposer’s TOP
mark, depicted in the stylized font of Applicant’s HOP mark, who separately sees
Applicant’s mark in the same stylized font, and we must take into account the
“fallibility of human memory . . . .” St. Helena Hosp., 774 F.3d at 751 (quotation and
quotation marks omitted). Because of the stylization of Applicant’s mark, we find here
that such “consumers taking a quick glance at Applicant’s mark[ ] might misread the
mark” as TOP in stylized font, Woody Vapes, 2024 WL 4925922, at *13, but even if
they do not, any visual differences between the marks resulting from the presence of
different first letters before the letters “O” and “P” that might be noticed are
outweighed by the visual similarities resulting from the display of the three letters,
including the same second and third letters “O” and “P,” in the same stylized font.20
We find that the marks are similar in appearance.
With respect to sound, Opposer’s mark TOP and Applicant’s mark HOP in stylized
font both consist of recognizable English words with known pronunciations. Cf.
StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 1331-32 (Fed. Cir. 2014)
(“[t]here is no correct pronunciation of a trademark that is not a recognizable word”)
(citation omitted). Opposer’s TOP mark and Applicant’s HOP mark are similar in
sound because they rhyme. Cf. Look Cycle, 2024 WL 3739358, at *10 (finding the
marks LOOK and BLOOKE to be similar in sound because “a significant segment of
consumers will pronounce Respondent’s [BLOOKE] mark as rhyming with
20 In Woody Vapes, the Board found that “consumers taking a quick glance at Applicant’s
marks might misread the mark.” Woody Vapes, 2024 WL 4925922, at *13.

Opposition No. 91293320
- 24 -
Petitioner’s [LOOK] mark.”); Spotify AB v. U.S. Software, Inc., No. 91243297, 2022
WL 110251, at *14 (TTAB 2022) (finding that the marks SPOTIFY and POTIFY
“sound quite similar, and rhyme” for purposes of the opposer’s dilution claim). We
find that the marks here are similar in sound.
Finally, with respect to connotation, we have found above that Opposer’s TOP
mark may connote the “highest quality” tobacco products or refer to a spinning toy.
The word “hop” is also a word in English with a variety of meanings,21 but Applicant
ascribes an entirely different, non-dictionary meaning to its mark. As discussed
above, in the Zhang Declaration, the witness testified that “‘HOP’ was selected
because it is derived from a phrase used internally by our team, ‘HEAT ONE PUFF’
or ‘HEAT ON PUFF,’” which the witness stated referred to “a heating technology that
activates each time the user takes a puff.” Zhang Decl. ¶ 10 (22 TTABVUE 3-4).
According to the witness, “‘HOP’ was chosen to reflect that concept in a short, modern,
memorable word,” Zhang Decl. ¶ 10 (22 TTABVUE 4), and “[t]he word ‘HOP’ . . . is
tied to the ‘HEAT ONE PUFF’ concept and modern device-based consumption.”
Zhang Decl. ¶ 34 (22 TTABVUE 8).
This claimed non-dictionary meaning of HOP is not clear on the face of the mark,
however, and there is no evidence that this “phrase used internally by our team,”
Zhang Decl. ¶ 10 (22 TTABVUE 3), and its putative abbreviation, have been
21 We take judicial notice that in its verb form, “hop” means “to move by a quick springy leap
or in a series of leaps,” “to make a quick trip especially by air,” and “to set about doing
something —usually used in the phrase hop to it,” and that in its noun form, “hop” means
“a short brisk leap especially on one leg,” a dance, “a flight in any aircraft,” or “a short trip.”
MERRIAM-WEBSTER DICTIONARY (merriam-webster.com, last accessed on August 17, 2026)
(emphasis in bold here in italics in the original).

Opposition No. 91293320
- 25 -
communicated publicly. We agree with Opposer that “[t]he HOP mark does not
contain any punctuation to suggest it is an acronym,” 26 TTABVUE 30, and that
“Applicant has not submitted any evidence to indicate that consumers in the
marketplace would view HOP as an acronym.” Id. See In re Max Cap. Grp. Ltd., No.
77186166, 2010 WL 22358, at *5 (TTAB 2010) (rejecting the applicant’s claim that
the cited mark MAX would be perceived as an abbreviation of the registrant’s
company name “Mutual Aid Exchange” where MAX was “not depicted with periods or
anything that would indicate that MAX stands for the initials of ‘Mutual’ and ‘Aid’
and an abbreviation for ‘Exchange’.”) (citations omitted). We find that to the extent
that consumers recognized Applicant’s mark as a highly-stylized display of the word
“hop,” they would not attribute any particular meaning to the mark because “hop”
has no obvious meaning in the context of the vaping equipment identified in the
application. To the extent that the marks do differ in meaning, that difference is
outweighed by their similarities in appearance and sound.
The first DuPont factor supports a conclusion that confusion is likely. See Naterra,
Inc. v. Bensalem, 92 F.4th 1113, 1119 (Fed. Cir. 2024) (where the involved marks
were more similar than dissimilar, it was error not to “weigh the first DuPont factor
heavily in favor of a likelihood of confusion finding.”).
3. Similarity or Dissimilarity of the Goods, Channels of
Trade, and Classes of Consumers
a. The Second DuPont Factor
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 Detroit

Opposition No. 91293320
- 26 -
Athletic Co., 903 F.3d 1297, 1306 (Fed. Cir. 2018). “This factor considers whether ‘the
consuming public may perceive [the goods or services] as related enough to cause
confusion about the source or origin of the goods or services.’” St. Helena Hosp., 774
F.3d at 752 (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267
(Fed. Cir. 2002)). “In analyzing the [goods], the Board considers ‘[t]he similarity or
dissimilarity and nature of the [goods] as described in an application or registration.’”
In re OSF Healthcare Sys., No. 88706809, 2023 WL 6140427, at *4 (TTAB 2023)
(quoting In re Embiid, No. 88202890, 2021 WL 2285576, at *10 (TTAB 2021)).
The goods “‘need not be identical or even competitive to find a likelihood of
confusion.’” Id. (quoting In re Country Oven, Inc., No. 87354443, 2019 WL 6170483,
at *2 (TTAB 2019)). “They need only be ‘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. (quoting Country
Oven, 2019 WL 6170483, at *2 (quoting Coach Servs., 668 F.3d at 1369 (internal
quotation omitted)).
The relatedness of goods or services may be established based on (1) the language
of the involved identifications of goods or services, which may show, on the face of the
identifications, that the goods or services are literally or legally identical, or are
otherwise intrinsically related, (2) extrinsic evidence, including third-party uses or
registrations, which may show that the identified goods or services are commonly
offered by the same entity under the same mark, or are otherwise related. See, e.g.,
id. at *4.

Opposition No. 91293320
- 27 -
We need not find “similarity as to each [good] listed in the description of [goods]”
in Class 34 in the opposed application. Id. at *5 (citation omitted). “It is sufficient for
a finding of likelihood of confusion if relatedness is established for any item
encompassed in the identification of goods in a particular class in an application.” Ye
Mystic Krewe of Gasparilla, 2025 WL 2953731, at *3 (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1336 (CCPA 1981)).
The goods identified in the application are:
Cartomizers, namely, combination electronic cigarette
refill cartridges sold empty and atomizers, sold as a
component of electronic cigarettes; Cartridges sold filled
with propylene glycol for electronic cigarettes; Devices for
heating tobacco for the purpose of inhalation; Devices for
heating tobacco substitutes for the purpose of inhalation;
Electronic cigarette atomizers sold empty; Electronic
cigarette cases; Electronic cigarettes; Liquid nicotine
solutions for use in electronic cigarettes; Oral vaporizers
for smokers; Tobacco substitutes not for medical purposes.
The goods identified in Opposer’s five pleaded registrations of TOP are:
Smoking tobacco; Cigarette rolling papers; Cigarette
rolling paper booklets; roll-your-own smoking tobacco;
cigarette rolling machines; cigarette tubes; injector
machines for filling cigarette tubes for personal use; filter
tips for cigarettes; Pocket machines for rolling cigarettes
for personal use; Smokers’ rolling trays.
Opposer argues that
[t]he Board has already held that smokers’ articles (and
specifically those covered by the TOP registrations) are
“inherently related” to electronic cigarette products. . . .
Although that Board opinion is non-precedential, the
record in this proceeding compels the same conclusion.
Here, as in Woody Vapes, the Application covers a variety
of smokers’ articles, including electronic cigarettes and oral
vaporizers, electronic cigarettes and oral vaporizers

Opposition No. 91293320
- 28 -
accessories and components, and “tobacco substitutes not
for medical purposes.”
26 TTABVUE 30-31 (citing Woody Vapes, 2024 WL 4925922, at *5).
Opposer claims similarity here based on the inherent relatedness of the goods,
witness testimony, third-party registrations, and what it calls “studies indicat[ing]
that a considerable portion of traditional tobacco smokers also use electronic smoking
products and vice versa.” Id. at 30-32. We address each form of evidence in turn.
i. Inherent Relatedness
As Opposer notes, the Board found in Woody Vapes that Opposer’s tobacco-related
goods, and e-cigarettes and other vaping products of the sort identified in the
application here, are “inherently related . . . in that all of the products serve the same
purpose, namely, facilitating the delivery of nicotine to smokers/vapers.” Woody
Vapes, 2024 WL 4925922, at *5 (quotation and quotation marks omitted). The record
in this case supports a similar finding here.
Applicant’s witness Zhang confirmed that both Opposer’s traditional tobacco-
smoking goods and Applicant’s vaping goods serve as nicotine-delivery systems:
The intended class of purchasers for [Applicant’s] goods
includes adult tobacco users interested in alternatives to
traditional combustible tobacco products. These consumers
typically include individuals seeking products they
perceive as reducing certain health risks, technology-
oriented users attracted to innovative nicotine delivery
systems, and those motivated by convenience and
discretion in tobacco consumption.
Zhang Decl. ¶ 17 (22 TTABVUE 5). The witness further testified that vaping products
are “presented as an alternative to combustible tobacco products,” Zhang Decl. ¶ 27
(22 TTABVUE 7), as a different means to satisfy a consumer’s appetite for nicotine.

Opposition No. 91293320
- 29 -
We find that the involved goods are inherently related because they are both used to
deliver nicotine to smokers and vapers. Cf. Fuente Mktg., 172 F.4th at 1340
(describing both hand-rolled cigars made with tobacco and “vapes” as “smoking-
related products”).
ii. Witness Testimony
Rule 602 of the Federal Rules of Evidence provides that “[a] witness may testify
to a matter only if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter,” and that “[e]vidence to prove personal
knowledge may consist of the witness’s own testimony.” Fed. R. Evid. 602. Opposer’s
witness Lele testified to “direct[ ] involve[ment] in managing Top Tobacco’s
marketing, distribution, and sale of its products,” and to familiarity with Opposer’s
goods and “the means by which they are marketed, distributed, and sold,” Lele Decl.
¶ 3 (17 TTABVUE 4), as well as to personal contact with “wholesalers, retailers,
distributors, and consumers about our products, products that are competitive with
ours, and developments in the industry,” Lele Decl. ¶ 4 (17 TTABVUE 4), and to
“personal knowledge of and experience regarding the development, marketing,
distribution, and sale of smoking tobacco, cigarette rolling papers, cigarette filters,
cigarette tubes, and cigarette rolling, injector and making machines, and other
smoking-related products, including vaporizers, electronic cigarettes and accessories,
and tobacco substitutes.” Lele Decl. ¶ 5 (17 TTABVUE 5). The witness is Opposer’s
and Republic Brands’ Executive Vice President and General Counsel, Lele Decl. ¶ 1
(17 TTABVUE 4), and although attorneys are sometimes accused of thinking that
they know everything, the basis for the witness’s claim of personal knowledge

Opposition No. 91293320
- 30 -
regarding the matters covered in the Lele Declaration is clear and sufficient to
establish the witness’s personal knowledge to testify to those matters under Rule 602.
With respect to the relatedness of the goods, the witness testified that
[t]obacco smokers’ articles are sold to the same target
consumers as electronic cigarettes and vaporizing
products, as well as other tobacco substitutes. Users of
tobacco, both roll-your-own and in other forms, frequently
engage in “dual use” of both traditional tobacco products
and electronic cigarettes and/or vaporizing products. Adult
smokers of traditional tobacco are the core target market
for sellers of electronic cigarettes and vaporizers, as sellers
of those goods attempt to persuade traditional tobacco
smokers to switch to (or add) electronic and/or vaporizing
products. The same is true with regard to other tobacco
substitutes. As a result, in the normal course of trade,
electronic cigarettes, vaporizing products, and other
tobacco substitutes are typically sold by the same
wholesalers and retailers as Top Tobacco’s TOP branded
products. They are sold by retailers in the same areas
within the retail environment (i.e., on the same shelves,
counters, end-caps, aisles, and areas surrounding or
behind cash registers), and they are marketed and sold to
the same customers, namely adult tobacco users.
Accordingly, electronic cigarettes, vaporizers, cartomizers,
cartridges, liquid nicotine solutions, and other components
and accessories covered by the subject application are
complementary or closely related products to Top Tobacco’s
TOP branded products.
. . .
Companies in the field of smokers’ articles frequently offer
multiple types of smoking devices, such as cigarette
papers, roll-your-own cigarette accessories, pipes, cigars,
vaporizers, and/or electronic cigarettes under the same
brand. Accordingly, consumers have come to expect that
makers of traditional smokers’ articles (such as Top
Tobacco’s tobacco, cigarette papers, and other “roll-your-
own” accessories) extend their brands into electronic
cigarettes, vaporizers, and other related products.
Consumers are therefore likely to be confused by the use of
similar marks, with different owners, for traditional

Opposition No. 91293320
- 31 -
smokers’ articles and electronic cigarette/vaporizer
products.
Lele Decl. ¶¶ 23, 25 (17 TTABVUE 13-14).
In the Zhang Declaration, Applicant’s witness is identified as its “Senior Visual
Communication Designer” with responsibility for “brand design, product design, and
related marketing for various product lines,” including the one at issue here. Zhang
Decl. ¶ 1 (22 TTABVUE 2).22 The witness claimed to “have personal knowledge of the
facts stated in this Declaration or [to] have acquired that knowledge in the course of
my responsibilities as an employee of” Applicant, Zhang Decl. ¶ 2 (22 TTABVUE 2),
but the witness’s primary responsibility appears to be in brand and product design
rather than in the sales and marketing of Applicant’s goods, including in the United
States. The witness’s bare-bones claim of personal knowledge of all of the matters in
the Declaration, including matters regarding the United States market, is suspect,
and the lack of specificity is problematic because there is no testimony regarding any
personal exposure to and familiarity with the United States market of the sort
present in the Lele Declaration.23
22 The witness was identified in Applicant’s responses to Opposer’s requests for production
as “the creator of Applicant’s Mark.” 16 TTABVUE 62 (Applicant’s Resp. to Req. No. 15), 85
(Applicant’s Supp. Resp. to Req. No. 15).
23 In that regard, we find it significant that a different individual, “Kuai, Supeng,” was
identified in Applicant’s responses to Opposer’s interrogatories as Applicant’s “Product
Manager,” and as (1) the “person most knowledgeable” about a host of matters regarding
Applicant’s prospective use of its mark in the United States, (2) the “person that furnished
information for all the responses to these interrogatories,” and (3) the person who verified
Applicant’s responses. 16 TTABVUE 7-9, 15-16, 17 (Applicant’s Resps. to Int. Nos. 1 and 12,
and Verification), 20-22, 30-31, 33 (Applicant’s Supp. Resps. to Int. Nos. 1 and 12, and
Verification), 36-38, 47, 49 (Applicant’s Supp. Resps. to Int. Nos. 1 and 12, and Verification).
There is a separate issue with the testimony in the Zhang Declaration. The witness lives and
works in China for a Chinese company. The Zhang Declaration is entirely in English and

Opposition No. 91293320
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Applicant’s witness Zhang did not directly address the relatedness of the parties’
goods per se,24 or rebut testimony in the Lele Declaration on that issue, but instead
testified only that “[t]he United States market alone involves millions of adult users
and many different categories of products,” Zhang Decl. ¶ 29 (22 TTABVUE 7), and
that “[w]ithin this overall market, based on my experience, the traditional tobacco
segment is treated as separate from the electronic smoking segment. In my
experience, companies that sell loose tobacco and rolling papers generally operate in
a different market than companies like [Applicant] that focus on electronic devices
and cartridges.” Zhang Decl. ¶ 30 (22 TTABVUE 7).25
With respect to the relatedness of the goods, we find that the Lele testimony is
more probative evidence than the limited testimony in the Zhang Declaration, and
that the Lele testimony supports a finding that companies in the field of smokers’
there is no testimony reflecting the degree, if any, of the witness’s proficiency in English.
Applicant’s trademark search, Zhang Decl. Ex. B (22 TTABVUE 17-437), and a confidential
internal email exchange discussing the development of Applicant’s new product, in which the
witness participated, Zhang Decl. Ex. E (23 TTABVUE 480-92), were both translated from
Chinese into English before they were submitted, indicating (unsurprisingly) that
Applicant’s employees conduct their business in Chinese. The Zhang Declaration does not
indicate that it was similarly translated from Chinese into English, but Opposer did not
question the witness’s ability to testify in English, so we will consider the testimony in
English for whatever probative value it may have. Cf. ARSA Distrib., Inc v. Salud Nat.
Mexicana S.A. de C.V., No. 91240240, 2022 WL 4592443, at *2 (TTAB 2022) (striking
testimony declaration in English where the witness was not an English speaker), rev’d on
other grounds, No. 1:22cv1367 (E.D. Va. Apr. 16, 2024).
24 The witness also testified regarding the different natures of the parties’ goods, Zhang Decl.
¶¶ 26-27 (22 TTABVUE 6-7), but “the issue is not whether purchasers would confuse the
goods, but rather whether there is a likelihood of confusion as to the source of these goods.”
In re Samsung Display Co., No. 90502617, 2024 WL 3451873, at *3 (TTAB 2024) (citations
omitted).
25 The witness focused instead on the intended channels of trade and classes of consumers for
the goods, Zhang Decl. ¶¶ 17, 19, 28 (22 TTABVUE 5-6, 7), which we discuss below in our
analysis of the third DuPont factor.

Opposition No. 91293320
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articles frequently offer both tobacco-smoking products of the sorts identified in
Opposer’s registrations, and vaping equipment of the sort identified in the opposed
application, under the same mark.
iii. Third-Party Registrations26
“As a general proposition, third-party registrations that cover goods and services
from both the [Opposer’s] registration[s] and an Applicant’s application are relevant
to show that the goods and services are of a type that may emanate from a single
source under one mark.” Country Oven, 2019 WL 6170483, at *5 (citations omitted).
We assess third-party registration evidence offered for this purpose for both quantity
and quality. Id.
Opposer submitted USPTO electronic records regarding more than 70 third-party
registrations. 15 TTABVUE 6-122, 131-50, 153-223, 230-35.27 As in Woody Vapes,
2024 WL 4925922, at *6, 58 of the third-party registrations cover one or more goods
from both Opposer’s registrations and Applicant’s application,28 or equivalent
26 As discussed below, there are more than 70 third-party registrations in the record and
many of the relevant ones contain lengthy and dense identifications of goods. To facilitate the
Board’s review of this evidence, parties that submit third-party registrations to show
relatedness should highlight the pertinent goods in the registrations before submitting them.
27 Ten of the registrations did not issue, and were not maintained, based on use in commerce,
id. at 6-44, and thus have no probative value regarding relatedness. Made in Nature, 2022
WL 2188890, at *24. Opposer also submitted USPTO electronic records regarding eight
pending applications, 15 TTABVUE 123-30, 151-52, 224-29, 236-44, but they “are evidence
only of the fact that they have been filed . . . and have no other probative value.” In re Sibony,
No. 86293054, 2021 WL 4812119, at *4 (TTAB 2021) (citations omitted).
28 15 TTABVUE 45-48, 49-51, 52-53, 54-59, 60-62, 63-65, 66-70, 71-73, 74-76, 77-79, 80-82,
83-85, 86-88, 89-91, 92-94, 95-96, 97-99, 100-02, 103-04, 105-07, 108-09, 110-12, 113-15, 116-
19, 120-22, 131-33, 134-36, 137-38, 139-41, 142-44, 145-46, 147-48, 149-50, 153-55, 156-58,
159-61, 162-64, 165-67, 168-69, 170-72, 175-76, 177-78, 179-81, 182-83, 184-86, 187-89, 190-
91,192-94, 197-98, 206-08, 209-10, 211-12, 213-15, 216-17, 218-20, 221-23, 230-31, 232-35.
We note that the third-party registrations indicate that Shenzhen, Applicant’s home city in

Opposition No. 91293320
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goods.29 We summarize below the coverage of a representative sample of these third-
party registrations:30
• Registration No. 4961107 covers “Cartomizers, namely, combination
electronic cigarette refill cartridges sold empty and atomizers, sold as a
component of electronic cigarettes” and “Cases for electronic cigarettes,”31
which are identified in the application, as well as “Cigarette rolling papers,”
“cigarette rolling machines,” “cigarette tubes,” and “pocket machines for
rolling cigarettes,”32 which are identified in one of Opposer’s registrations,
15 TTABVUE 45-48;
• Registration No. 4880117 covers “Cartomizers, namely, combination
electronic cigarette refill cartridges sold empty and atomizers, sold as a
component of electronic cigarettes,” “Electric cigarettes,”33 and “Electronic
cigarette cases,” which are identified in the application, as well as
“Cigarette rolling papers,” “Smoking tobacco,” “Cigarette rolling machines,”
“Cigarette tubes,” and “Pocket machines for rolling cigarettes,” which are
identified in one of Opposer’s registrations, id. at 49-51;
• Registration No. 4977984 covers “Cartomizers, namely, combination
electronic cigarette refill cartridges sold empty,”34 and “Electronic
China, is a hotbed of activity in the vaping equipment industry, as many of the third-party
registrations are owned by companies or individuals located there. Id. at 49-51, 103-04, 159-
65, 165-67, 168-69, 177-78, 179-81, 190-91, 197-98, 211-12.
29 “Just as we must consider the full scope of the goods . . . as set forth in the application and
registration[s] under consideration, we must consider the full scope of the goods . . . described
in a third-party registration.” Country Oven, 2019 WL 6170483, at *5.
30 We do not list all of the overlapping goods in a number of the examples.
31 The goods identified in this registration as “cases for electronic cigarettes” are equivalent
to the “electronic cigarette cases” identified in the application.
32 The goods identified in this registration and others in the record as “pocket machines for
rolling cigarettes” encompass the goods identified in one of Opposer’s registrations as “pocket
machines for rolling cigarettes for personal use.”
33 The goods identified in this registration and others in the record as “electric cigarettes” are
equivalent to the “electronic cigarettes” identified in the application.
34 The goods identified in the application as “cartomizers, namely, combination electronic
cigarette refill cartridges sold empty and atomizers, sold as a component of electronic
cigarettes” encompass the “cartomizers, namely, combination electronic cigarette refill
cartridges sold empty” identified in this registration.

Opposition No. 91293320
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cigarettes,” which are identified in the application, as well as “Tobacco”35
and “cigarette rolling papers,” which are identified in one of Opposer’s
registrations, id. at 52-53;
• Registration No. 5612312 covers “cartomizers, namely, combination
electronic cigarette refill cartridges sold empty and atomizers, sold as a
component of electronic cigarettes,” “electronic cigarette cases,” and
“electric cigarettes,” which are identified in the application, as well as
“smoking tobacco” and “roll your own tobacco,” “cigarette rolling papers,”
“cigarette rolling machines,” “cigarette tubes,” and “pocket machines for
rolling cigarettes,” which are identified in one of Opposer’s registrations, id.
at 54-59;
• Registration No. 5656238 covers “Cartomizers, namely, combination
electronic cigarette refill cartridges sold empty and atomizers, sold as a
component of electronic cigarettes,” “Electronic cigarettes,” “Carrying cases
specially adapted for electronic cigarettes, electronic cigars, cigarettes, and
cigars,”36 and “Tobacco substitutes,” which are identified in the application,
as well as “cigarette rolling papers,” which are identified in one of Opposer’s
registration, id. at 60-62;
• Registration No. 6414001 covers “Cartomizers, namely, combination
electronic cigarette refill cartridges sold empty and atomizers, sold as a
component of electronic cigarettes” and “Electronic cigarettes,” which are
identified in the application, and “Cigarette paper,” which encompasses the
“Cigarette rolling papers” identified in one of Opposer’s registrations;
• Registration No. 6894061 covers “Electronic cigarettes,” which are
identified in the application, as well as “Tobacco,” which encompasses the
“Smoking Tobacco” identified in one of Opposer’s registrations;37
35 The “tobacco” identified in this registration encompasses the “smoking tobacco” identified
in one of Opposer’s registrations.
36 The “carrying cases specially adapted for electronic cigarettes, electronic cigars, cigarettes,
and cigars” identified in this registration and others in the record encompass the “electronic
cigarette cases” identified in the application.
37 Applicant’s pending intent-to-use application to register the mark GOLA in stylized
lettering covers both “Tobacco and tobacco substitutes,” and “electronic cigarettes” and other
vaping-related goods. Zhang Decl. ¶ 40; Ex. W (22 TTABVUE 9-10, 570-71). Applicant’s
witness Zhang also authenticated “a mock-up of the intended packaging” bearing Applicant’s
mark, Zhang Decl. ¶ 15 (22 TTABVUE 4-5), which describes the goods therein simply as
“Original Tobacco” and states that “[t]his tobacco product damages your health and is
addictive.” Zhang Decl. Ex. D (22 TTABVUE 476).

Opposition No. 91293320
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• Registration No. 6972750 covers “Cartomizers, namely, combination
electronic cigarette refill cartridges sold empty and atomizers, sold as a
component of electronic cigarettes” and “electronic cigarettes,” which are
identified in the application, as well as “Rolling tobacco,” which is
encompassed by the “Smoking tobacco” identified in one of Opposer’s
registrations; and
• Registration No. 7120142 covers “Electronic cigarettes,” which are
identified in the application, as well as “Cigarette tobacco,” which is a form
of the “Smoking tobacco” identified in one of Opposer’s registrations.
These 58 registrations, owned by 44 separate owners, are more than sufficient in
quantity and quality to establish that the involved goods may emanate from the same
source under the same mark. Here, as in Woody Vapes, “[t]he third-party registration
evidence is particularly persuasive given the substantial number of registrations we
have in the record.” Woody Vapes, 2024 WL 4925922, at *6.
The third-party registrations are also objective corroboration of the testimony in
the Lele Declaration that “[c]ompanies in the field of smokers’ articles frequently offer
multiple types of smoking devices, such as cigarette papers, roll-your-own cigarette
accessories, pipes, cigars, vaporizers, and/or electronic cigarettes under the same
brand,” and that “consumers have come to expect that makers of traditional smokers’
articles (such as Top Tobacco’s tobacco, cigarette papers, and other ‘roll-your-own’
accessories) extend their brands into electronic cigarettes, vaporizers, and other
related products.” Lele Decl. ¶ 25 (17 TTABVUE 14).
iv. Other Evidence
Finally, Opposer relies on what its Third Notice of Reliance describes as “articles
from periodicals and trade publications observing trends in contemporary tobacco

Opposition No. 91293320
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users’ preferences,” 14 TTABVUE 2,38 and what the Board described in Woody Vapes
as a “multitude of research articles involving consumers, referred to as ‘dual use’ or
‘poly(tobacco) use’ consumers, who purportedly use both traditional tobacco smoking
products, like cigarettes, as well as electronic cigarettes.” Woody Vapes, 2024 WL
4925922, at *7. Opposer argues that these articles show that “[u]sers of tobacco, both
roll-your-own and in other forms, frequently engage in ‘dual use’ of both traditional
tobacco products and electronic cigarettes and accessories.” 26 TTABVUE 19-20.
As the Board observed in Woody Vapes, “[b]ecause these articles were submitted
solely under notice of reliance, without supporting testimony, we cannot rely on the
accuracy of the statements or findings of the studies conducted, as detailed within
the papers.” Woody Vapes, 2024 WL 4925922, at *7 (citing RLP Ventures, 2023 WL
6442609, at *5 n.17). Nevertheless, the Board found that “on its face, this evidence
demonstrates that the subject of ‘dual use’ or ‘poly(tobacco) use’ consumers has been
reviewed in scientific journals and published on a reputable US government website,”
and that “[t]hese articles thus reinforce the credibility of Mr. Lele’s testimony
regarding the existence of ‘dual use’ consumers and that the parties’ goods may be
purchased and used by the same persons.” Id. The record in this case supports a
similar finding here that the “dual use” phenomenon discussed in the Lele
Declaration exists and has currency in the academic and scientific community.
38 These materials are from the websites of both public agencies such as National Institutes
of Health and the Centers for Disease Control, 14 TTABVUE 8-26, 45-52, 82-89, 91-100, 102-
16, 118-28, 138-45, 147-53, 155-59, 161-66, 168-73, 226-35, 244-52, 268-76, and private
entities. Id. at 28-43, 54-63, 65-80, 130-36, 174-225, 236-43, 253-67.

Opposition No. 91293320
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v. Summary of Second Factor Evidence
The tobacco and various smoking-related products identified in Opposer’s
registrations are inherently related to the vaping products identified in Applicant’s
application because both sets of products serve the same function of nicotine delivery,
and Opposer’s testimonial and documentary evidence establishes that sellers of
tobacco and other smoking-related products commonly also sell vaping products
under the same mark, either to “dual-use” consumers who both smoke and vape, or
to consumers who smoke and want an alternative means of scratching their nicotine
itch through vaping. Here, as in Woody Vapes, the second DuPont factor strongly
supports a conclusion that confusion is likely. Woody Vapes, 2024 WL 4925922, at *8.
b. The Third DuPont Factor
The third DuPont factor “considers ‘[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.’” Detroit Athletic Co., 903 F.3d at 1308 (quoting
DuPont, 476 F.2d at 1361). Opposer argues that
[t]he Application contains no limitations with regard to
channels of trade, and it is therefore presumed that
Applicant’s goods will move in all the usual channels of
trade for smokers’ articles. . . . In addition, because
Applicant’s goods are closely related to Top Tobacco’s TOP
products, they are presumed to be marketed in the same
channels of trade and will be bought by the same classes of
purchasers. . . . This factor favors a likelihood of confusion
finding based on these presumptions alone.
26 TTABVUE 32-33 (citing, inter alia, Brown Shoe Co. v. Robbins, No. 91176273,
2009 WL 1360688 (TTAB 2009)).39
39 In Brown Shoe, the Board stated that “[c]onsidering the channels of trade and classes of
purchasers, because the goods are, in part, legally identical and otherwise closely related and

Opposition No. 91293320
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Opposer further argues that
in this case, the presumptions are unnecessary, as the
evidence clearly shows that the channels of trade are
identical. Here again, the record supports the same finding
that the Board made in Woody Vapes, namely, that this
factor weighs “strongly in favor of finding confusion likely”
because the relevant goods “are the types of goods that may
be found in the same trade channels and offered to the
same consumers, including those who use both goods or
consumers who are traditional tobacco smokers and are
transitioning to electronic cigarettes.”
Id. at 33 (quoting Woody Vapes, 2024 WL 4925922, at *8). Opposer points to the Lele
testimony and the testimony of its rebuttal witness Jeremy Schoening, as well as
Applicant’s discovery responses, third-party webpages of sellers of smoking and
vaping products, and the third-party registrations discussed above, in support of
Opposer’s argument that “the channels of trade are identical for both TOP and HOP
products.” 26 TTABVUE 34. We address each form of evidence in turn.
i. Witness Testimony
With respect to trade channels, Opposer’s witness Lele testified that Opposer’s
products have been marketed through “convenience stores, gas stations, mini marts,
tobacco stores and outlets, mass merchandisers, cash-and-carry outlets, and other
retail locations.” Lele Decl. ¶ 8 (17 TTABVUE 6). The witness further testified as
follows:
because there are no limitations in either the registration or the subject application, we must
presume that applicant’s and opposer’s goods will be sold in the same channels of trade and
will be bought by the same classes of purchasers.” Brown Shoe, 2009 WL 1360688, at *2
(citations omitted). The Federal Circuit has subsequently made it clear that for the cited
presumption to attach, the goods or services must be identical, at least in part, which is not
the case here. In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012).

Opposition No. 91293320
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Tobacco smokers’ articles are sold to the same target
consumers as electronic cigarettes and vaporizing
products, as well as other tobacco substitutes. Users of
tobacco, both roll-your-own and in other forms, frequently
engage in “dual use” of both traditional tobacco products
and electronic cigarettes and/or vaporizing products. Adult
smokers of traditional tobacco are the core target market
for sellers of electronic cigarettes and vaporizers, as sellers
of those goods attempt to persuade traditional tobacco
smokers to switch to (or add) electronic and/or vaporizing
products. The same is true with regard to other tobacco
substitutes. As a result, in the normal course of trade,
electronic cigarettes, vaporizing products, and other
tobacco substitutes are typically sold by the same
wholesalers and retailers as Top Tobacco’s TOP branded
products. They are sold by retailers in the same areas
within the retail environment (i.e., on the same shelves,
counters, end-caps, aisles, and areas surrounding or
behind cash registers), and they are marketed and sold to
the same customers, namely adult tobacco users.
Lele Decl. ¶ 23 (17 TTABVUE 13-14).
Opposer’s rebuttal witness Schoening, the Director of Trade Marketing and
Customer Service for Republic Brands, Schoening Decl. ¶ 1 (25 TTABVUE 4),
testified that “[t]rade shows are a standard and overlapping channel of promotion
and trade for both traditional tobacco products and accessories as well as electronic
cigarette and vaping products,” Schoening Decl. ¶ 4 (25 TTABVUE 4), that Republic
Brands has displayed Opposer’s TOP products at numerous trade shows, including
the Total Product Expo (“TPE”) in Las Vegas, Nevada, Schoening Decl. ¶¶ 6-7 (25
TTABVUE 5), and that “[i]t is very common at such trade shows for numerous
manufacturers and/or distributors of electronic cigarettes and vaping products to
promote their products alongside other exhibitors promoting traditional tobacco
products.” Schoening Decl. ¶ 10 (25 TTABVUE 5).

Opposition No. 91293320
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In the Zhang Declaration, Applicant’s witness testified that the intended trade
channels for Applicant’s goods are “direct online sales to customers through
[Applicant’s] websites, sales through distributors who specialize in electronic
smoking devices such as vape stores, and sales and promotion through trade fairs
and exhibitions, such as the Total Product Expo (TPE) in Las Vegas.” Zhang Decl.
¶ 19 (22 TTABVUE 5). The witness further testified that “[b]ased on my experience
in the industry and my observations of the marketplace, traditional TOP-branded
goods are typically sold in tobacco shops, convenience stores, and similar retail
outlets, and are targeted primarily to consumers who roll their own cigarettes or use
loose tobacco,” Zhang Decl. ¶ 28 (22 TTABVUE 7), and that “I review materials from
industry trade shows and exhibitions and observe how electronic smoking products
are presented and sold in the marketplace” and “[i]n the course of my work, I have
not seen Opposer’s TOP brand promoted in connection with electronic smoking
devices like our . . . goods.” Zhang Decl. ¶ 31 (22 TTABVUE 7).
As discussed above, we are skeptical about the witness’s personal knowledge of
the United States market, but taken at face value, this testimony establishes at least
overlapping channel of promotion for the parties’ products, the TPE Product Expo.40
Applicant’s professed intention to limit the channels of trade for its vaping products
are of no moment because we must focus on the language of Applicant’s identification
of goods, which contains no such restrictions regarding channels of trade, rather than
40 Opposer notes that Applicant also admitted in a discovery response that Applicant has
exhibited its electronic cigarettes and vaping products at the TPE show. 26 TTABVUE 33
(citing Applicant’s Supp. Resp. to Int. No. 1 (16 TTABVUE 38-39)).

Opposition No. 91293320
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“the parties’ narrower real-world practices.” Fuente Mktg., 172 F.4th at 1344-45. “[A]n
application with no such restrictions cannot be narrowed by evidence that the
applicant’s use is, in fact, meaningfully restricted.” Id. at 1345.
ii. Internet Evidence and Third-Party
Registrations
Opposer submitted third-party webpages displaying its various products for sale.
13 TTABVUE 2-335. These webpages show that resellers of the traditional tobacco
products identified in Opposer’s registrations also offer e-cigarettes and other vaping
products identified in the opposed application. Id. at 74-91 (blueskysales.com), 96-
100 (cbprices.com),41 102-07 (gopuff.com), 118-33 (adyahwholesale.com), 135-47
(afgdistribution.com), 149-56 (buckstobaccoria.com), 158-70 (discreetsmoker.com),
172-87 (goldeneagledistributors.com), 189-96 (jayjaydistributorsinc.com), 198-200
(rcdwholesale.com), 206-20 (skokiewholesale.com), 222-38 (smokea.com), 240-57
(smokecartel.com),42 259-69 (smokersdiscounts.com), 271-91 (smokewrap.com), 293-
302 (socaldistrollc.com), 304-12 (truedistro.com), 314-27 (upperlimitsinc.com).
As discussed above, Opposer submitted numerous third-party registrations
covering both tobacco-smoking goods and vaping goods. To the extent that the sellers
of these goods distribute them through “direct online sales to customers” of the sort
claimed by Applicant’s witness, Zhang Decl. ¶ 19 (22 TTABVUE 5), the goods would
flow by definition in the same channels of trade.
41 This reseller identifies itself as the “Leading Wholesaler for the Convenience Store
Industry.” 13 TTABVUE 100.
42 This reseller identifies itself as “Your Trusted Online Headshop.” 13 TTABVUE 241.

Opposition No. 91293320
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iii. Summary of Third Factor Evidence
In Woody Vapes, the Board found that the involved goods were “the types of goods
that may be found in the same trade channels and offered to the same consumers,
including those who use both goods or consumers who are traditional tobacco smokers
and are transitioning to electronic cigarettes.” Woody Vapes, 2024 WL 4925922, at *8.
The record in this case again supports a similar finding here. Opposer’s witness Lele
testified without contradiction that “in the normal course of trade, electronic
cigarettes, vaporizing products, and other tobacco substitutes are typically sold by
the same wholesalers and retailers as Top Tobacco’s TOP branded products,” Lele
Decl. ¶ 23 (17 TTABVUE 14), and this testimony is corroborated by the third-party
registration evidence that numerous companies sell both types of “smoking-related
products,” Fuente Mktg., 172 F.4th at 1340, and by the Internet evidence, which
“demonstrates that companies in the field of smoker’s articles frequently offer
multiple types of smoking devices, both traditional tobacco-smoking goods and
electronic-smoking goods, including vaporizers, as well as accessories for these types
of goods.” Woody Vapes, 2024 WL 4925922, at *7.
Here, as in Woody Vapes, the third DuPont factor strongly supports a conclusion
that confusion is likely. Woody Vapes, 2024 WL 4925922, at *8.
4. The Fourth DuPont Factor
The fourth DuPont factor considers the “conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont,
476 F.2d at 1361. Opposer argues that its goods “are relatively inexpensive and may
be purchased by ordinary consumers at convenience stores, drug stores, gas stations,

Opposition No. 91293320
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mini-marts and similar outlets,” and that “electronic cigarettes are generally offered
at similar inexpensive prices.” 26 TTABVUE 35 (citing Lele Decl. ¶ 8 (17 TTABVUE
6)).
Applicant’s witness Zhang testified that Applicant “anticipate[s] that [its] . . .
goods may be priced above traditional tobacco products, reflecting their advanced
technological features,” Zhang Decl. ¶ 18 (22 TTABVUE 5), but as with Applicant’s
claimed limited channels of trade, its claimed intended premium pricing based on
advanced technology is of no moment because its “identification [of goods] includes
all goods of the type identified, without limitation as to their nature or price,” and
“the goods are presumed to include [ones] that are relatively inexpensive.” Sock It To
Me, Inc. v. Fan, No. 91230554, 2024 WL 3027605, at *10 (TTAB 2024). The record
shows that many of the vaping products identified in the application are offered at
relatively modest prices,43 and they are offered to nicotine-seeking consumers who
may care relatively little about the source of the goods. We must base our decision on
the least sophisticated potential purchaser of Applicant’s goods, Stone Lion Cap.
Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014), and we find
that the least sophisticated potential purchasers here may not exercise significant
care in purchasing e-cigarettes and related goods. We find that the fourth DuPont
factor is neutral in our analysis of the likelihood of confusion.
43 13 TTABVUE 106-07, 152-53, 155-56, 163-66, 214-16, 218-20, 228-32, 234-38, 247-55, 265-
66, 268-69, 283-84, 286-88, 290-91, 324-27, 329-30.

Opposition No. 91293320
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5. Summary Regarding DuPont Factors
The key first and second DuPont factors, and the third and fifth factors, support
a conclusion that confusion is likely, while the fourth DuPont factor is neutral. The
marks are similar; Opposer’s TOP mark is entitled to a slightly wider scope of
protection than the normal scope of protection to which inherently-distinctive marks
are entitled; the involved tobacco and vaping goods are intrinsically related because
they both serve as nicotine-delivery devices, and the record shows their frequent sale
under the same marks; and the goods are sold in the same channels of trade to
consumers who both smoke and vape, or vape as an alternative to smoking. We
conclude that a consumer with a general rather than specific recollection of Opposer’s
TOP mark for RYO tobacco and related smoking articles who separately encounters
Applicant’s stylized HOP mark for e-cigarettes and other vaping equipment is likely
to believe mistakenly that the goods have a common source.
V. Conclusion
Opposer proved its entitlement to oppose, and the elements of its Section 2(d)
claim, priority and likelihood of confusion, by a preponderance of the evidence.
Because we resolve this opposition based on Opposer’s Section 2(d) claim, we need
not and do not reach its claim that Applicant lacked a bona fide intention to use its
mark in commerce when the opposed application was filed. Tequila Cuadra S. de RL
de CV v. Manufacturera de Botas Cuadra, S.A. de C.V., No. 91282327, 2025 WL
1431504, at *1 (TTAB 2025) (citing Yazhong Inv. Ltd. v. Multi-Media Tech. Ventures,
Ltd., No. 92056548, 2018 WL 2113778, at *13 n.52 (TTAB 2018) (“Like the federal

Opposition No. 91293320
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courts, the Board has generally used its discretion to decide only those claims
necessary to enter judgment and dispose of the case. . . . More specifically, the Board’s
determination of registrability does not require, in every instance, decision on every
pleaded claim.”) (internal quotation and quotation marks omitted)).
Decision: The opposition is sustained based on Opposer’s Section 2(d) claim.