MAP Elite & MAP Prospects LLC DBA Advanced Player Experience LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: September 11, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re MAP Elite & MAP Prospects LLC
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Serial No. 98651023
_____
Deirdre M. Kvale, DMK Intellectual Property Law PLLC,
for MAP Elite & MAP Prospects LLC.
Sandra Snabb, Trademark Examining Attorney, Law Office 120,
Joshua Toy, Managing Attorney.
_____
Before Larkin, Bradley and O’Connor,
Administrative Trademark Judges.
Opinion by O’Connor, Administrative Trademark Judge:
MAP Elite & MAP Prospects LLC (“Applicant”) seeks registration on the Principal
Register of the mark shown below (ADVANCED PLAYER disclaimed) for services
ultimately identified as “sports training services in the field of hockey training
programs; sports training services in the field of competitive hockey player
development and training programs,” in International Class 41:

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1
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), on the ground that the mark, when used in connection with
the identified services, is likely to cause confusion, mistake or deception with the
registered mark APX in standard characters for:
Consulting services in the fields of fitness and exercise;
physical fitness and exercise studio services, namely,
providing group and individual exercise, pilates and aerial
pilates instruction, classes, equipment, and facilities;
providing physical fitness and exercise studio services,
namely, pilates and aerial pilates instruction, classes,
training techniques, pilates and aerial pilates apparatuses,
equipment and facilities; health club services, namely,
providing instruction and equipment in the fields of fitness
and exercise, in International Class 41
(the “Cited Registration” or “Cited Mark”).2
When the refusal was made final, Applicant requested reconsideration and filed
this appeal, which was suspended. The application was remanded to the Examining
Attorney to consider the request for reconsideration, which was denied. The appeal
1 Application Serial No. 98651023 was filed on July 16, 2024 pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s averment of a bona fide intent to
use the mark in commerce. Applicant describes the mark as “consist[ing] of a polygon with
the literal elements ‘APX ADVANCED PLAYER EXP’ inside the polygon and including
polygon and star shapes inside the polygon above the literal elements ‘APX ADVANCED
PLAYER EXP’ and stylized stars and stripes below the literal elements.” Color is not claimed
as a feature of the mark.
2 Registration No. 6380709 issued on June 8, 2021 on the Principal Register.

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was resumed, and Applicant and the Examining Attorney filed briefs. For the reasons
that follow, we affirm the refusal to register.
I. Likelihood of Confusion
“The Trademark Act prohibits registration of a mark that so resembles a
registered mark as to be likely, when used on or in connection with the goods or
services of the applicant, to cause confusion, mistake, or to deceive.” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). Our determination
of the issue of likelihood of confusion is based on analysis of all of the probative facts
in evidence that are relevant to the factors set forth in In re E.I. DuPont de Nemours
& Co., 476 F.2d 1357, 1361 (CCPA 1973) (the “DuPont factors”). We consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 1379-80 (Fed. Cir. 2019).
Varying weight may be assigned to each DuPont factor depending on the evidence
presented. See Charger Ventures, 64 F.4th at 1381 (“In any given case, different
DuPont factors may play a dominant role and some factors may not be relevant to the
analysis.”) (citation omitted). In determining likelihood of confusion, two key
considerations are the similarities between the marks and the similarities between
the goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340, 1341-42 (Fed. Cir.
2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA
1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and differences in the
marks.”).

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A. Similarity or Dissimilarity of the Services, Trade Channels and
Classes of Consumers
We first consider the second and third DuPont factors, “[t]he similarity or
dissimilarity and nature of the goods or services as described in an application or
registration,” and the “similarity or dissimilarity of established, likely-to-continue
trade channels,” and the classes of consumers. DuPont, 476 F.2d at 1361. With each
factor, our determination must be based not on evidence of use, but on the
identification of services in the application and Cited Registration. See, e.g., In re
Detroit Athletic Co., 903 F.3d 1297, 1307 (Fed. Cir. 2018) (“The relevant inquiry in an
ex parte proceeding focuses on the goods and services described in the application and
registration, and not on real-world conditions.”) (emphasis omitted).
The goods or services “need not be identical or even competitive to find a likelihood
of confusion.” In re Country Oven, Inc., No. 87354443, 2019 TTAB LEXIS 381, at *4
(citations omitted). “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 [the goods and services] emanate from the same source.’” Id. at
*4-5 (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369 (Fed.
Cir. 2012)).
Evidence of relatedness may include materials showing that the relevant goods or
services “are advertised together or sold by the same manufacturer or dealer.” In re
Embiid, No. 88202890, 2021 TTAB LEXIS 168, at *30 (quoting In re Ox Paperboard,
LLC, No. 87847482, 2020 TTAB LEXIS 266, at *15). The issue is not whether
purchasers would confuse the services, but rather whether there is a likelihood of

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confusion as to the source of the services. L’Oreal S.A. v. Marcon, No. 91184456, 2012
TTAB LEXIS 77, at *20 (citing In re Rexel Inc., No. 73241423, 1984 TTAB LEXIS 57,
at *2). It is sufficient for likelihood of confusion if relatedness is established for any
item encompassed by the recitation of goods or services within a particular class in
the application. See, e.g., Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d
1335, 1336 (CCPA 1981).
Applicant’s services are “sports training services in the field of hockey training
programs; sports training services in the field of competitive hockey player
development and training programs.” The services identified in the Cited
Registration include “consulting services in the fields of fitness and exercise; physical
fitness and exercise studio services, namely, providing group and individual exercise,
pilates and aerial pilates instruction, classes, equipment, and facilities; … health club
services, namely, providing instruction and equipment in the fields of fitness and
exercise.”
The Examining Attorney submitted evidence to show that the same entity
commonly offers the services of both Applicant and registrant, or legally equivalent
services, under the same mark. See In re OSF Healthcare Sys., No. 88706809, 2023
TTAB LEXIS 353, at *23-24 (When considering third-party websites where the
services “may not be explicitly described at all, or may be described in colloquial
language that does not track the technical language of acceptable identifications of
goods and services in applications and registrations, including those involved here,”

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Board “must determine the nature of the services that are offered, and decide whether
they fall within the full scope of the language in the involved identifications.”).
This evidence includes website printouts for the following third parties that offer
hockey training services as well as general fitness and exercise programs, including
in a studio or health club environment, under a single mark:
• The St. James performance club and gym (offering hockey training services
and group fitness classes)3
• Performance Health & Fitness (offering hockey training services and group
fitness classes)4
• Fortis Academy (offering hockey training services and group fitness
classes)5
• Top-Tier Performance Training (offering hockey training services and
group fitness classes)6 and
• Sanford Sports (offering hockey training services and fitness studio
services).7
Three of these entities also provide the “consulting services in the fields of fitness and
exercise” identified in the Cited Registration specifically for hockey players, namely,
Performance Health & Fitness (Performance Elite Hockey Training Program
instructed by training staff at Performance Health & Fitness to teach athletes “proper
techniques and skills to prevent injuries, and progress to the next step in their
3 June 4, 2025 Final Office Action, TSDR 11-29.
4 Id. at 30-42.
5 Id. at 43-53.
6 Id. at 70-80.
7 December 23, 2025 Denial of Request for Reconsideration, TSDR 45-53.

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athletic careers”),8 Top-Tier Performance Training (owned by a former college hockey
player and certified personal trainer who uses “the latest research and most effective
methods” to help athletes “reach their fitness and performance goals” including an
off-ice strength and conditioning program)9 and Sanford Sports (offering “sports
performance training that targets the specific muscle groups you depend on as a
hockey player”).10
In addition, the evidence includes website printouts for several hockey training
programs that also provide hockey-specific consulting services in the fields of fitness
and exercise, under a single mark:
• Method Hockey offers sports performance training in the field of hockey
including evaluations, customized programs and nutrition guidance for “the
Hockey-Athlete.”11
• Hockey Hut Training Center offers hockey programs including sports
performance and personal training with assessment by a trainer and
various exercises.12
• Elite Hockey Science Reston offers hockey training services beginning with
consultation and including off-ice strength & conditioning.13
• Topline Performance Training offers hockey training services including off-
ice performance training to “[b]uild muscle, gain speed, and prioritize
mobility;” “[p]layers will work through a series of explosive push, pull, and
carry movements to generate power while learning correct form.”14
8 June 4, 2025 Final Office Action, TSDR 30.
9 Id. at 70.
10 December 23, 2025 Denial of Request for Reconsideration, TSDR 45-47.
11 June 4, 2025 Final Office Action, TSDR 59-60.
12 Id. at 66-68.
13 December 23, 2025 Denial of Request for Reconsideration, TSDR 5-8.
14 Id. at 27-28.

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This evidence supports a finding that Applicant’s “sports training services in the
field of hockey training programs; sports training services in the field of competitive
hockey player development and training programs” are related to one or more of
registrant’s “consulting services in the fields of fitness and exercise,” “physical fitness
and exercise studio services, namely, providing group and individual exercise” and/or
“health club services, namely, providing instruction and equipment in the fields of
fitness and exercise.” See Detroit Athletic, 903 F.3d at 1306 (crediting relatedness
evidence that several third-party apparel retailers use the same mark for the goods
and services at issue because “[t]his evidence suggests that consumers are
accustomed to seeing a single mark associated with a source that sells both”). As the
Federal Circuit has stated, evidence that “a single company sells the goods and
services of both parties, if presented, is relevant to a relatedness analysis.” Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002). See also In
re Davey Prods. Pty, No. 77029776, 2009 TTAB LEXIS 524, at *15 (relatedness was
supported by evidence of two third-party webpages showing that “water pumps
and/or electric motors, such as applicant’s, and air compressors, such as registrant’s,
can be manufactured and sold by a single source”).
That a number of these third parties offer both sports training services in the field
of hockey and consulting services in the fields of fitness and exercise, including
specifically for hockey players, shows not only that the same party offers the services
of both Applicant and registrant, but that these services are inherently related and
complementary. Evidence made of record by Applicant itself supports this intrinsic

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relatedness. Applicant provided an article stating that “[s]ports training refers to the
systematic process of preparing an athlete physically, technically, tactically,
mentally, and emotionally to perform optimally in their chosen sport. It involves a
planned series of activities designed to improve specific skills, enhance physical
fitness, develop strategic understanding, and foster mental resilience.”15 “Such
complementary use has long been recognized as a relevant consideration in
determining a likelihood of confusion.” In re Martin’s Famous Pastry Shoppe, Inc.,
748 F.2d 1565, 1567 (Fed. Cir. 1984).
This inherent, complementary relationship is further supported by the Examining
Attorney’s evidence of 18 use-based third-party registrations covering Applicant’s
and registrant’s services, or legally equivalent services,16 including:
Mark/Reg. No. Relevant Services
BLOODLINE HOCKEY,
Reg. No. 495119517
Consulting services in the fields of fitness and exercise;
sports training services in the field of hockey
ELEV802
Reg. No. 672193118
Providing sports training services in the field of hockey;
providing personal training services, namely, strength and
conditioning training
PHYZEKE FITNESS
Reg. No. 389739019
Consulting services in the fields of fitness and exercise;
health club services, namely, providing instruction and
15 December 3, 2025 Request for Reconsideration, TSDR 82 (printout from sportsbee.org,
emphasis added) (stating further that one type of sports training, general physical training,
“[f]ocuses on overall fitness, strength, and endurance applicable across multiple sports”).
16 See Country Oven, 2019 TTAB LEXIS 381, at *10-11 (“Just as we must consider the full
scope of the goods and services as set forth in the application and registration under
consideration, we must consider the full scope of the goods and services described in a third-
party registration.”).
17 June 4, 2025 Final Office Action, TSDR 99-100.
18 Id. at 85-86.
19 February 13, 2025 Nonfinal Office Action, TSDR 9-10.

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Mark/Reg. No. Relevant Services
equipment in the field of physical exercise; sports training
services
FITNESS UNCHAINED
Reg. No. 586723720
Sports training services; health club services, namely,
providing instruction and equipment in the field of
physical exercise
TOUCHSTONE
CLIMBING
Reg. No. 428029121
Health club services, namely, providing instruction and
equipment in the field of physical exercise; sports training
services in the field of indoor rock climbing
CARP and design
Reg. No. 639224022
Sports training services; health club services, namely,
providing instruction and equipment in the field of
physical exercise
WILD CARD BOXING
CLUB
Reg. No. 385321323
Consulting services in the fields of fitness and exercise;
health club services, namely, providing instruction and
equipment in the field of physical exercise; sports training
services
XPFITNESS and design
Reg. No. 588827324
Health club services, namely, providing instruction and
equipment in the field of physical exercise; sports training
services
CANINE CROSS-
TRAINING
Reg. No. 694502825
Health club services, namely, providing instruction and
equipment in the field of physical exercise; physical fitness
studio services, namely, providing group exercise
instruction, equipment, and facilities; sports training
services
MYSYZE
Reg. No. 654569426
Consulting services in the fields of fitness and exercise;
health club services, namely, providing instruction and
equipment in the field of physical exercise; sports training
services
Health club services and sports training services, namely,
providing instruction and equipment in the field of
physical exercise and sports conditioning
20 Id. at 11-12.
21 Id. at 13-14.
22 Id. at 15-16.
23 Id. at 17-18.
24 Id. at 19-20.
25 Id. at 21-22.
26 Id. at 23-24.

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Mark/Reg. No. Relevant Services
Reg. No. 521394427
REACTIVE
COUNTERING
TRAINING
Reg. No. 524796428
Athletic services, namely, sports training services; fitness
evaluation and consultation services, namely, physical
fitness assessment and consultation services
ICI INTERNATIONAL
COACHES INSTITUTE
& design
Reg. No. 468987029
Consulting services in the fields of fitness and exercise;
sports training services
LEISURE LEAGUES &
design
Reg. No. 623476530
Sports training services in the field of youth and adult
sports for entertainment and cultural purposes; physical
fitness consultation and advisory services; fitness and
health club services for physical exercise, and soccer club
services
FEELTHISFITNESS
Reg. No. 620118331
Consulting services in the fields of fitness and exercise;
physical fitness training of individuals and groups; sports
training services
SPIRIT CLUB
Reg. No. 596567732
Consulting services in the fields of fitness and exercise;
health club services, namely, providing instruction and
equipment in the field of physical exercise; physical fitness
studio services, namely, providing group exercise
instruction, equipment, and facilities; sports training
services
PRECISION SPORT
SCIENCE
Reg. No. 763864533
Consulting services in the fields of fitness and exercise;
sports training services
FMS
Reg. No. 412168234
Consulting services in the fields of fitness and exercise;
sports training services
27 Id. at 25-26.
28 June 4, 2025 Final Office Action, TSDR 81-82.
29 Id. at 83-84.
30 Id. at 89-90.
31 Id. at 91-92.
32 Id. at 93-94.
33 Id. at 95-96.
34 Id. at 97-98.

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One of these registrations, for BLOODLINE HOCKEY, expressly includes “sports
training services in the field of hockey,” which is nearly identical to Applicant’s
services, as well as registrant’s “consulting services in the fields of fitness and
exercise.” Another registration, for ELEV802, expressly includes “providing sports
training services in the field of hockey” and “providing personal training services,
namely, strength and conditioning training,” which falls within the full scope of
registrant’s “consulting services in the fields of fitness and exercise.” Although not
necessarily evidence that the marks have been used or of the extent of such use, third
party, use-based registrations that cover services from both an application and a cited
registration are relevant to show that the services are of a type that may emanate
from a single source under one mark. In re Guild Mortg. Co., No. 86709944, 2020
TTAB LEXIS 17, at *13; In re Mucky Duck Mustard Co., No. 73603019, 1988 TTAB
LEXIS 11, at *6, aff’d per curiam, 864 F.2d 149 (Fed. Cir. 1988). Thus, these two
registrations provide further support for relatedness.
In addition, many of the third-party registrations cover “sports training services”
generally as well as either registrant’s “consulting services in the fields of fitness and
exercise” or “health club services, namely, providing instruction and equipment in the
fields of fitness and exercise.” Even though the sports training services in these
registrations are not expressly associated with hockey, we must give the
identifications their full scope and deem them to include sports training for hockey.
See Country Oven, 2019 TTAB LEXIS 381, at *10-11.

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Applicant nonetheless argues that the services are different, primarily relying on
asserted differences in the channels of trade and classes of consumers, which we
address below. To the extent Applicant argues that “Registrant’s services do not
include sports training services for hockey player development,”35 the Examining
Attorney does not contend that the services are identical. As noted above, the law is
clear that identity of services is not necessary; for confusion to be likely, the services
need only be related in the sense that consumers could mistakenly believe that the
services originate from the same source. In re Majestic Distilling Co., 315 F.3d 1311,
1316 (Fed. Cir. 2003); In re Shell Oil Co., 992 F.2d 1204, 1207 (Fed. Cir. 1993).
Although Applicant’s services are limited to the field of hockey, registrant’s services
are not limited to any particular sport or activity. The evidence above supports a
finding that Applicant’s “sports training services in the field of hockey training
programs” can be offered by the same source as registrant’s “consulting services in
the fields of fitness and exercise,” “physical fitness and exercise studio services,
namely, providing group and individual exercise…” and “health club services,
namely, providing instruction and equipment in the fields of fitness and exercise,”
often under the same mark, such that consumers may believe Applicant’s and
registrant’s services come from the same source.
Applicant argues that its services are provided at ice arenas, citing the declaration
of its Chief Executive Officer, Joel L. Owens, who testified that “Applicant’s hockey
35 6 TTABVUE 10.

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training services are provided at various ice rink facilities.”36 Applicant further states
that registrant’s services “are not of the type generally provided at ice rink
facilities.”37 There is nothing in the Cited Registration, however, that restricts the
services to those provided at a facility other than an ice rink. We must determine
whether there is a likelihood of confusion based on the services as they are described
in the application and Cited Registration. See Detroit Athletic, 903 F.3d at 1307. And
where an identification is unrestricted, we must presume that the services are
provided in all of the normal trade channels for such services to all potential
purchasers thereof. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 948 (Fed. Cir.
2000) (affirming Board finding that where the identification is unrestricted, “we must
deem the goods to travel in all appropriate trade channels to all potential purchasers
of such goods”); see also Coach Servs., 668 F.2d at 1370 (absent limitation “goods are
presumed to travel in all normal channels ... for the relevant goods”).38
Evidence in the record shows that the normal channels of trade for the respective
services are not rigidly defined and can indeed overlap. The record includes websites
36 6 TTABVUE 9 (citing Exhibit E to May 6, 2025 Response to Office Action, TSDR 26, Owens
Decl. ¶ 2).
37 6 TTABVUE 10 (citing Exhibit H to May 6, 2025 Response to Office Action, TSDR 41, a
website printout for third-party PHYZEKE FITNESS, which does not appear to offer services
at an ice rink facility).
38 The Examining Attorney states that “the services of the parties have no restrictions as to
nature, type, channels of trade, or classes of purchasers and are ‘presumed to travel in the
same channels of trade to the same class of purchasers.’’’ 8 TTABVUE 15 (citing, inter alia,
In re Viterra, 671 F.3d 1358, 1362 (Fed. Cir. 2012)). This is an incorrect statement of the law.
The cited presumption applies only where the goods or services are identical, which is not the
case on this appeal. See Viterra, 671 F.3d at 1362 (prefacing statement about presumption
with observation that the applicant conceded the goods at issue were identical).

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for entities that offer registrant’s services within a facility that also houses an ice
rink. For example, Fortis Academy’s website indicates that the gym training
component of its hockey training program is offered at the same locations as its adult
fitness program, at least one of which is at an ice arena.39 The website of another
entity that provides sports training (including for hockey players), Top-Tier
Performance Training, indicates that it first operated out of a garage, then within an
ice center, then at its own gym location.40 Other entities offer hockey training services
and registrant’s services at the same facilities, which may or may not house both an
ice rink and a gym.41
These examples belie Applicant’s next argument, that the services differ because
its services “are directed to skilled hockey players and are promoted through
advertising in hockey magazines, word of mouth, coaches, youth hockey organizations
and ice rink advertising.”42 The Examining Attorney’s evidence of websites offering
the services of both Applicant and registrant shows that the services of both parties
are marketed and offered in at least one common channel of trade, namely, by entities
39 See June 4, 2025 Final Office Action, TSDR 43, 48-53 (website indicating that both
programs are offered at Fortis Gym inside Champions Hall and Fortis Gym inside Richfield
Ice Arena).
40 See id. at 70-72.
41 See, e.g., December 23, 2025 Denial of Request for Reconsideration, TSDR 20-21 (website
for Topline Performance Training boasts facilities “specifically designed to challenge your
limits and develop your abilities both on and off the ice” including services offered at venues
with rinks and gyms); June 4, 2025 Final Office Action, TSDR 30-32 (Performance Health &
Fitness offers an Elite Hockey Training Program (with images of people at an arena and in a
gym) as well as group fitness classes (with images of people on stationery bikes).
42 6 TTABVUE 10. Like Applicant’s first argument, these arguments pertain more to the
channels of trade and classes of consumers than to relatedness of the services.

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that provide both hockey training programs and consulting services and group and
individual instruction in the fields of fitness and exercise. The evidence also shows
an overlap in consumers to the extent that those interested in hockey training
programs may seek to optimize their performance in the sport through sport-specific
physical fitness and exercise, including by consulting with a professional or expert in
the field. Cf. In re Toshiba Med. Sys. Corp., No. 79046106, 2009 TTAB LEXIS 447, at
*21 (website evidence showed same or overlapping channels of trade and classes of
customers).
Applicant also argues that the Examining Attorney’s evidence of relatedness of
the services is de minimis, because
[n]one of the examples cited by the Examiner use a mark
that provides context and meaning unique to one service to
the exclusion of another service. Applicant’s APX
ADVANCED PLAYER EXP & Design is unique to
Applicant’s services; similar to MethodIceHockey.com and
MyHockeyHut.com, for example, cited by the Examiner
which both incorporate “HOCKEY” to identify the source of
hockey sports training services including on and off ice
hockey training. As in the case with MethodIceHockey.com
and HockeyHut.com, in view of the commercial impression
of Applicant’s mark, consumers are not likely to associate
Applicant’s services with the fitness, exercise and health
club services provided under Registrant’s mark.43
We disagree that the Examining Attorney’s evidence of relatedness is de minimis.
Taken together, the evidence of 18 third-party registrations and nine third-party uses
detailed above shows that the same parties provide the services of both Applicant and
registrant, under the same mark, and that third parties have registered the same
43 Id.

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mark for use with those services or similar services. Given the nature of the involved
services, this evidence is sufficient in quantity and quality to show that Applicant’s
and registrant’s services are related. See, e.g., In re C.H. Hanson Co., No. 77983232,
2015 TTAB LEXIS 357, at *17 (six websites offering both goods under the same mark,
coupled with five marks registered for the goods, supported relatedness). The
evidence also shows an inherent, complementary relationship between the services.
Nor do we see how the wording ADVANCED PLAYER EXP “provides context and
meaning unique” to Applicant’s services to the exclusion of registrant’s services such
that consumers are not likely to associate the respective services. There is nothing in
registrant’s identified services that excludes their use by hockey players and it would
be improper to rely on the words ADVANCED PLAYER EXP in Applicant’s mark to
read an exclusion of hockey players into the Cited Registration. See, e.g., In re La
Peregrina Ltd., No. 78676199, 2008 TTAB LEXIS 38, at *7 (“An applicant may not
restrict the scope of the goods covered in the cited registration by argument or
extrinsic evidence.”).
The second and third DuPont factors weigh in favor of a likelihood of confusion.
B. Similarity or Dissimilarity of the Marks
When considering the first DuPont factor, the similarity or dissimilarity of the
marks, we compare the marks “in their entireties as to appearance, sound,
connotation, and commercial impression.” Detroit Athletic, 903 F.3d at 1302-03
(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, LLC, No.

Serial No. 98651023
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87075988, 2018 TTAB LEXIS 170, at *13 (citation omitted), aff’d mem., 777 F. App’x
516 (Fed. Cir. 2019). “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.” Fuente Mktg. v. Vaporous Techs., LLC, 172 F.4th
1337, 1341-42 (Fed. Cir. 2026) (quoting Coach Servs., 668 F.3d at 1368 (cleaned up)).
Because similarity is determined based on the marks in their entireties, our
analysis cannot be predicated on dissecting the marks into their various
components. See, e.g., In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985).
“No element of a mark is ignored simply because it is less dominant, or would not
have trademark significance if used alone.” In re Electrolyte Labs. Inc., 929 F.2d 645,
647 (Fed. Cir. 1990). Nonetheless, “in articulating reasons for reaching a conclusion
on the issue of confusion, there is nothing improper in stating that, for rational
reasons, more or less weight has been given to a particular feature of a mark, provided
the ultimate conclusion rests on consideration of the marks in their entireties.”
Detroit Athletic, 903 F.3d at 1305 (quoting Nat’l Data, 753 F.2d at 1058).
“[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) (citation omitted). Marks must be considered
in light of the fallibility of memory, id. at 751, and “[t]he focus is on the recollection
of the average purchaser, who normally retains a general rather than a specific
impression of trademarks.” In re St. Julian Wine Co., No. 87834973, 2020 TTAB
LEXIS 196, at *13 (citations omitted).

Serial No. 98651023
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With these principles in mind, we compare Applicant’s mark, , and
the Cited Mark, APX in standard characters. In refusing registration, the Examining
Attorney determined that the marks are confusingly similar because Applicant’s
mark incorporates the Cited Mark in its entirety and APX is the dominant element
of the applied-for mark.44 The Examining Attorney determined that the other words
and design element of Applicant’s mark do not obviate the similarity between the
marks.45 Applicant disagrees for several reasons, including that the Examining
Attorney failed to consider the entirety of Applicant’s mark, focusing only on the
letters APX to the exclusion of the other elements.46
When evaluating a composite mark consisting of words (or letters) and a design,
the word portion is normally accorded more weight because it is likely to make a
greater impression on purchasers, be remembered by them, and be used to refer to or
request the goods or services. See, e.g., Viterra, 671 F.3d at 1366 (“the verbal portion
of a word and design mark likely will be the dominant portion … [t]his makes sense
given that the literal component of brand names likely will appear alone when used
in text and will be spoken when requested by consumers”). Of the literal elements in
44 8 TTABVUE 5.
45 Id. at 5-7, 9.
46 6 TTABVUE 5.

Serial No. 98651023
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Applicant’s mark, APX appears in the center in bold white letters that are much
larger than the words ADVANCED PLAYER EXP appearing below APX. Applicant
also disclaimed ADVANCED PLAYER, conceding that those words are descriptive of
its services and therefore non-source identifying. See In re Pollio Dairy Prods. Corp.,
No. 73596577, 1988 TTAB LEXIS 45, at *3, n. 4 (“By its disclaimer of the word LITE,
applicant has conceded that the term is merely descriptive as used in connection with
applicant’s goods.”) (citing Quaker State Oil Refining Corp. v. Quaker Oil Corp., 1969
TTAB LEXIS 48, at *6, aff’d, 453 F.2d 1296 (CCPA 1972); see also Cunningham, 222
F.3d at 947 (“Regarding descriptive terms, this court has noted that the
descriptive component of a mark may be given little weight in reaching a conclusion
on likelihood of confusion.”) (citation omitted; cleaned up); accord Charger Ventures,
64 F.4th at 1382 (although disclaimed matter remains part of the mark and must be
considered, it may technically differentiate a mark but do little to alleviate confusion;
it is permissible for the Board “to focus on dominant portions of a mark”) (citing
Detroit Athletic, 903 F.3d at 1305).
With regard to the design portion, Applicant argues that
Applicant’s mark includes a design as shown above, which
was given no weight. See, Non Final Office Action, pp 3-4,
Final Office Action, page 4. Applicant acknowledges that
the cited Registration is a standard character mark
without any limitation to stylization or font as stated by
the Examiner. However, Applicant’s design is more than a
stylized form of Registrant’s mark. Applicant’s mark is a
composite mark including the words APX ADVANCED
PLAYER EXP embedded in shield shaped polygon with
stars and stripes in stylized form below the words APX
ADVANCED PLAYER EXP. While words are normally
accorded greater weight in a composite mark, the design

Serial No. 98651023
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elements of the mark cannot be ignored. See, Trek Bicycle
Corporation v. Christina Isaacs, [2023 U.S. App. LEXIS
30357] (Fed. Circ. 2023) citing In re Viterra Inc., 671 F.3d
1358, 1362 (Fed Cir. 2012). Applicant’s design adds to the
commercial impression of its mark. Specifically, the design
provides an “all American” themed imagery that
contributes to the commercial impression of Applicant’s
mark.47
Although the Examining Attorney’s Office Actions did not expressly discuss the
features of the design element, they made clear that the design was considered less
dominant in Applicant’s mark than the letters APX.48 This was of particular
importance because the Cited Mark, as a standard character mark, may be displayed
in any manner of display, including a manner similar to that in Applicant’s mark. See
Viterra, 671 F.3d at 1363 (“a standard character mark is not limited to any particular
font, size, style, or color”); see also TRADEMARK MANUAL OF EXAMINING PROCEDURE
(TMEP) § 1207.01(c)(iii) (May 2026).
Although the verbal element does not always dominate in a composite mark and
we must consider Applicant’s mark in its entirety, here we find that the design is less
prominent than the letters APX. The outer polygon is a geometric carrier that
consumers are unlikely to perceive as source-identifying. See, e.g., In re Dixie Rests.,
105 F.3d 1405, 1407 (Fed. Cir. 1997) (word DELTA was dominant in mark THE
DELTA CAFE and design in part because “the design is an ordinary geometric shape
that serves as a background for the word mark”). The shapes above the letters are
unlikely to be noticed or recalled by consumers. Although the stars and stripes below
47 Id. at 6-7.
48 See, e.g., June 4, 2025 Final Office Action, TSDR 5. See also 8 TTABVUE 6.

Serial No. 98651023
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the letters could be perceived as lending an all-American connotation, we are not
persuaded that they contribute source-identifying significance to the overall
commercial impression of Applicant’s mark. Certainly, the design in Applicant’s mark
creates some differences visually from the Cited Mark. But considering Applicant’s
mark as a whole, the eye is drawn to the letters APX, which are most likely to be
impressed upon a purchaser’s memory and used to identify the source of the services.
Viterra, 671 F.3d at 1366 (citing Alzheimer’s Found. of Am., Inc. v. Alzheimer’s
Disease & Related Disorders Ass’n, Inc., 796 F. Supp. 2d 458, 465 (S.D.N.Y. 2011)
(although a composite mark consisting of both word and design elements “must be
considered in its entirety, trademark law recognizes that the word portion is often
more likely to be impressed upon a purchaser’s memory because it is the word that
purchasers use to request the goods and/or services”); see also Look Cycle Int’l v.
Kunshan Qiyue Outdoor Sports Goods Co., No. 92079409, 2024 TTAB LEXIS 289, at
*20 (“[B]ecause LOOK appears in large, bold font, and the design elements merely
consist of geometric patterned blocks that make less of an impression, LOOK stands
out as the focus of the mark.”). And here the visually prominent letters APX, which
are an acronym for the words ADVANCED PLAYER EXP, invite consumers to use
the acronym as a shorthand way of remembering and referring to the mark.
APX, the dominant element of Applicant’s mark, is identical to the entirety of the
Cited Mark. The marks are similar in appearance and sound to the extent they both
contain the letters APX.

Serial No. 98651023
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As for connotation, Applicant asserts that, by itself, APX has no meaning or
context, as illustrated by the fact that it has been registered by third parties for many
different types of goods and services.49 When used in its mark, however, Applicant
argues that APX conveys a very different meaning and commercial impression from
the Cited Mark because it is an acronym for the words ADVANCED PLAYER EXP.
In view of its sports-related services, Applicant contends that these words create an
impression of “a higher competitive experience for ‘sport’ players,” whereas
“Registrant’s mark for fitness, exercise and health club services would not be
associated with ADVANCED PLAYER EXP since its services are not of the type
focused on sports ‘player’ training nor player’s experience.”50 In support, Applicant
cites the definition of PLAYER, which “generally refers to a person who plays a sports
game or competitive team sport”51 and results of trademark searches it conducted on
49 6 TTABVUE 5 (citing Exhibit A to December 3, 2025 Request for Reconsideration, TSDR
11-81).
We do not consider Applicant to cite these registrations for commercial or conceptual
weakness of the Cited Mark under the sixth DuPont factor, but only to show that APX does
not have any particular meaning on its own and that it takes on a unique meaning when
used with the additional words in Applicant’s mark. See 6 TTABVUE 5-6; December 3, 2025
Request for Reconsideration, TSDR 9. Any argument that these other registrations show the
weakness of APX would not be persuasive in any event, because the goods and services
covered by them are not at all similar to the services involved here. See Omaha Steaks Int’l
v. Greater Omaha Packing Co., 908 F.3d 1315, 1324 (Fed. Cir. 2018) (sixth DuPont factor
considers “[t]he number and nature of similar marks in use on similar goods”) (quoting
DuPont, 476 F.2d at 1361).
50 6 TTABVUE 6 (concluding that Applicant’s mark “has no meaning in the context of
Registrant’s services but provides meaning, context and a commercial impression unique to
Applicant’s services as it relates to the quality and intensity of its hockey sports training
services for hockey players”).
51 Id. at 8 (citing Exhibit C to December 3, 2025 Request for Reconsideration, TSDR 86).

Serial No. 98651023
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the USPTO website that found registered marks with the word PLAYER for sports
training services but not for health club or fitness or exercise studio services.52
We disagree that the additional wording in Applicant’s mark or the nature of its
services lend such a different meaning to the letters APX in the two marks. First,
there is nothing in the respective services that necessarily causes the term APX, an
abbreviation of the additional words ADVANCED PLAYER EXP, to have a
significantly different connotation when used in Applicant’s mark as opposed to
registrant’s mark. The record shows that registrant’s services are often used by
athletes (including hockey players) to improve their fitness and enhance their sports
training through appropriate exercises, such that there is nothing about the word
PLAYER that excludes consumers of registrant’s services. The trademark search
results and registrations that Applicant provided do not show that consumers would
consider PLAYER to give a distinct meaning to the letters APX when those letters
are used with Applicant’s services as opposed to registrant’s services. Although
PLAYER in Applicant’s mark does create the impression of a participant in a sport
or game, again, this is not exclusive of consumers of registrant’s services. This is
illustrated by the fact that two of the registrations Applicant provided cover services
that are encompassed by or similar to those of the Cited Registration, MVP
ATHLETIC CLUB for “athletic club services, namely, providing fitness, sports and
52 Id. at 6 (citing Exhibits D-G to December 3, 2025 Request for Reconsideration, TSDR 88-
132).

Serial No. 98651023
- 25 -
exercise facilities and instruction”53 and PLAYERDASH for “sports and fitness
services, namely, conducting coaching services in the field of sports and fitness.”54
Consumers encountering Applicant’s mark may associate the letters APX with the
words ADVANCED PLAYER EXP, and understand that EXP is short for experience.
However, from the standpoint of consumers with a general rather than specific
recollection of the Cited Mark APX, who may not understand the letters to have any
particular meaning, the meaning of the letters in Applicant’s mark will not
necessarily be different; in fact, when such consumers separately encounter
Applicant’s mark, they may perceive it as providing information about the
significance of the letters APX in the Cited Mark. Cf. Toshiba Med. Sys., 2009 TTAB
LEXIS 447, at *15 (VANTAGE TITAN “more likely to be considered another product
from the previously anonymous source of TITAN medical diagnostic apparatus,
namely, medical ultrasound devices”).
Moreover, consumers receive and retain general impressions of marks and some
consumers may not notice the additional words in much smaller text in Applicant’s
mark. Even those who notice the additional words are likely to shorten the mark to
APX, which is the entirety of the Cited Mark. See Sabhnani v. Mirage Brands, LLC,
No. 92068086, 2021 TTAB LEXIS 464, at *45 (quoting In re Bay State Brewing Co.,
No. 85826258, 2016 TTAB LEXIS 46, at *9 (citing In re Abcor Dev. Corp., 588 F.2d
811, 815 (CCPA) (Rich, J. concurring: “the users of language have a universal habit
53 December 3, 2025 Request for Reconsideration, TSDR 115; 133 (acronymfinder.com
printout stating that MVP stands for “Most Valuable Player” in the context of sports).
54 See id. at 117-18.

Serial No. 98651023
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of shortening full names from haste or laziness or just economy of words”)). Confusion
is often found in such circumstances. See, e.g., Charger Ventures, 64 F.4th at 1381-82
(holding SPARK LIVING and SPARK confusingly similar); Coca-Cola Bottling Co. v.
Jos. E. Seagram & Sons, Inc., 526 F.2d 556, 557 (CCPA 1975) (holding BENGAL
LANCER and design and BENGAL confusingly similar); Double Coin Holdings, Ltd.
v. Tru Dev., No. 92063808, 2019 TTAB LEXIS 347, at *29 (holding ROAD WARRIOR
and WARRIOR (stylized) confusingly similar); TMEP § 1207.01(b)(iii) (citing cases).
Although the marks are not identical, for the reasons set forth above, the
Examining Attorney did not improperly focus on the letters APX to the exclusion of
the other elements in Applicant’s mark. Instead, comparing the marks in their
entireties in view of the applicable legal principles, we agree that the marks are
similar in appearance, sound, connotation and overall commercial impression. The
first DuPont factor weighs in favor of likelihood of confusion.
C. Sophistication of Consumers and Care in Purchasing
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361. “Purchaser sophistication may tend to minimize likelihood
of confusion. Conversely, impulse purchases of inexpensive items may tend to have
the opposite effect.” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 1376 (Fed. Cir. 2005) (citation omitted); see also In re N.A.D.,
Inc., 754 F.2d 996, 999-1000 (Fed. Cir. 1985) (concluding that because only
sophisticated purchasers exercising great care would purchase the relevant goods,

Serial No. 98651023
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there was no likelihood of confusion merely because of the similarity between the
marks NARCO and NARKOMED). Applicant argues that hockey training services
are expensive and are not an impulse purchase, citing the testimony of its CEO, who
testified that:
Hockey training services provided under the APX
ADVANCED PLAYER EXP & Design are provided by
invitation only and are expensive. To be considered, a
player must be an “A” level player (Squirt − Bantam) or
higher; or varsity or Junior level player. The player’s “on-
ice” game statistics and performance are reviewed and
input and recommendations from the player’s coaches are
used to evaluate the player for inclusion in the program.55
Applicant further argues that “[t]o the extent Registrant’s consulting and studio
services provide personalized fitness and exercise, the personalized nature of its
services and Applicant’s services reduces the likelihood of confusion and any
misassociation between Applicant’s services and Registrant’s service.”56 The
Examining Attorney does not deny that Applicant’s services are expensive and not an
impulse purchase and that registrant’s services are of a personalized nature, but
disagrees that this prevents a likelihood of confusion.57
Considering the identifications themselves, as we must, Applicant’s services are
not limited to those for elite or competitive players but include “sports training
services in the field of hockey training programs,” which are broad enough to include
participants of all skill and interest levels. The identification of registrant’s services
55 Applicant’s May 6, 2025 Response to Office Action, TSDR 26, Owens Decl. ¶ 3.
56 6 TTABVUE 11.
57 See 8 TTABVUE 15.

Serial No. 98651023
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does not specify any particular quality or skill level. Apart from Mr. Owens’ general
testimony, Applicant did not refer to any information about the cost of the services,
but the record contains some pricing information. The evidence shows both
Applicant’s and registrant’s services offered at prices ranging from approximately
$20-25 for group fitness classes or group hockey training lessons, over $100 for
private fitness or hockey lessons, with monthly health club memberships available
from approximately $100-$300 per month58 and hockey camps offered in the $200-
600 range with high school and varsity prep offerings costing as much as $2600.59
But 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 that they are immune from source confusion. Charger Ventures,
64 F.4th at 1383; Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d. 1317,
1325 (Fed. Cir. 2014). Where, as here, the purchasers include those with greater
sophistication as well as ordinary consumers, our decision must “be based on the least
sophisticated potential purchasers.” Stone Lion, 746 F.3d. at 1325 (cleaned up).
The nature and cost of the services, particularly those of Applicant, indicate that
the services are not purchased on impulse and that consumers are likely to use a
moderate degree of care in their purchase decisions. On the record of this case, we
find that the fourth DuPont factor weighs slightly against a likelihood of confusion.
58 See, e.g., May 6, 2025 Response to Office Action, TSDR 53, 92, 99; June 4, 2025 Final Office
Action, TSDR 16.
59 See, e.g., June 4, 2025 Final Office Action, TSDR 13, 44-46.

Serial No. 98651023
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II. Balancing the DuPont Factors
The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there is evidence and argument and “explain the results of that weighing”
and “the weight [we] assigned to the relevant factors.” Charger Ventures, 64 F.4th at
1384. We find that Applicant’s “sports training services in the field of hockey training
programs; sports training services in the field of competitive hockey player
development and training programs” are related and complementary to registrant’s
“consulting services in the fields of fitness and exercise,” “physical fitness and
exercise studio services, namely, providing group and individual exercise” and
“health club services, namely, providing instruction and equipment in the fields of
fitness and exercise.” The evidence also supports a finding that the channels of trade
and classes of consumers overlap. The second and third DuPont factors thus weigh in
favor of a likelihood of confusion. Comparing the marks and APX in
their entireties, we find that the marks are similar, due to the shared dominant APX
portion. Although the other elements of Applicant’s mark present differences, they do
not outweigh the similarities. Accordingly, the first DuPont factor also weighs in favor
of a likelihood of confusion. Consumers of the services are likely to use a moderate
degree of care in purchasing, with the fourth DuPont factor weighing slightly against

Serial No. 98651023
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a likelihood of confusion. No other DuPont factor weighs against a likelihood of
confusion.
Balancing the factors, we conclude that confusion is likely between Applicant’s
mark and registrant’s mark for their respective identified services.
Decision:
The refusal to register Applicant’s mark under Trademark Act Section 2(d) is
affirmed.