Columbia Insurance Company

This Opinion is Not a
Precedent of the TTAB
Mailed: October 7, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Columbia Insurance Company
_____
Serial No. 98848901
_____
David Chen and John Keller of IP Attorneys Group, LLC, for
Columbia Insurance Company.
Heather Kennedy, Trademark Examining Attorney, Law Office 120,
Joshua Toy, Managing Attorney.
_____
Before Heasley, Bradley and Brock,
Administrative Trademark Judges.
Opinion by Bradley, Administrative Trademark Judge:
Columbia Insurance Company (“Applicant”) applied to register the standard-
character mark TRU SUPPORT COMFORT YOU CAN FEEL on the Principal
Register1 for “footwear; clothing, namely, belts, dresses, gloves, jackets, neckwear,
pants, suits, swimwear, skirts, tops, bottoms, headwear, uniforms, shirts,
1 Application Serial No. 98848901, filed on November 12, 2024 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging Applicant’s bona fide intent to use the mark in
commerce.

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sweatshirts, sweatpants, shorts, sweaters, coats, wristbands, socks, hosiery, t-shirts,
scarves, caps, vests, and pullovers; headwear” in International Class 25.
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark is likely to cause
confusion with the marks TRUSUPPORT2 (in standard characters) and
3
both registered to the same owner on the Principal Register for “bras” in International
Class 25.
After the Examining Attorney issued the final refusal, Applicant appealed and
requested reconsideration.4 The Examining Attorney denied the request for
reconsideration.5 The appeal is fully briefed.6 We affirm the refusal to register.
2 Registration No. 4433877, registered November 12, 2013 and has been renewed. We refer
to the common owner of the cited registrations as the “Registrant.”
3 Registration No. 4479011, registered on February 4, 2014 and has been renewed. The
description of the mark states that it “consists of the letters ‘TS’ with [a] curved line
underneath and above ‘TRUSUPPORT’.” Color is not claimed as a feature of the mark.
4 1 TTABVUE.
Citations to appeal briefs and other materials in the appeal docket refer to TTABVUE, the
Board’s online docketing system. Specifically, the number preceding TTABVUE corresponds
to the docket entry number, and any number(s) following TTABVUE refer to the page
number(s) of the docket entry where the cited materials appear.
5 4 TTABVUE.
6 6 TTABVUE (Applicant’s brief); 8 TTABVUE (Examining Attorney’s brief); 9 TTABVUE
(Applicant’s reply brief).

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I. Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act involves an analysis
of all the probative evidence of record that is relevant to the factors bearing on a
likelihood of confusion. See In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361
(CCPA 1973) (“DuPont”); see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005).
We must consider “each DuPont factor for which there is evidence and argument.”
Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023) (citing In re Guild
Mortg. Co., 912 F.3d 1376, 1380 (Fed. Cir. 2019)). “The weight given to each factor
depends on the circumstances of each case.” In re Charger Ventures LLC, 64 F.4th
1375, 1381 (Fed. Cir. 2023). “[A]ny one of the factors may control a particular case.”
Naterra Int’l, Inc. v. Bensalem, 92 F.4th 1113, 1116 (Fed. Cir. 2024) (citation omitted).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods and services. See In re
i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (“likelihood of confusion
analysis considers all DuPont factors for which there is record evidence but may focus
. . . on dispositive factors, such as similarity of the marks and relatedness of the
goods”) (citation omitted). These and other factors addressed by Applicant and the
Examining Attorney are discussed below.
We focus our likelihood of confusion analysis on the standard-character mark
TRUSUPPORT in cited Registration No. 4433877 (the “Cited Registration” or “Cited
Mark”). Because we find confusion likely based on the mark in this registration, we

Serial No. 98848901
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need not consider the likelihood of confusion between Applicant’s mark and the
composite mark in Registration No. 4479011. See In re Max Cap. Grp. Ltd.,
No. 77186166, 2010 TTAB LEXIS 1, at *4-5 (TTAB 2010) (“Because the design
element in the cited MAX and design mark arguably contains an additional point of
difference with applicant’s mark, we confine our analysis to the issue of likelihood of
confusion between applicant’s mark and the cited registration for MAX in typed
drawing form.”).
A. Strength or Weakness of Registrant’s Mark
We first address the DuPont factor that considers the strength or weakness of the
Cited Mark because it affects the scope of protection we accord the mark. Applicant
contends that the Cited Registration for the mark TRUSUPPORT is “entitled to only
a narrow scope of protection in the field of bras” because of “the widespread use and
registration of ‘TRU’-formative trademarks in connection with bras”7 and given that
“the term ‘SUPPORT’ is descriptive of a key feature of bras and is routinely
disclaimed in registrations covering bras, meaning no one can claim exclusive rights
to the term ‘SUPPORT.’”8
“There are two prongs of analysis for a mark’s strength under the sixth [DuPont]
factor: conceptual strength and commercial strength.” See, e.g., Spireon, 71 F.4th at
1362. We do not consider commercial strength here because Applicant has not
7 6 TTABVUE 12.
8 9 TTABVUE 9.

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provided any evidence of third-party marketplace use. See New Era Cap Co. v. Pro
Era, LLC, No. 91216455, 2020 TTAB LEXIS 199, at *36 (TTAB 2020) (“Applicant did
not provide evidence of any third-party use of marks consisting of or comprised of the
term ERA for these goods, and thus no evidence of commercial weakness.”).
Conceptual or inherent strength is a measure of a mark’s distinctiveness. In re
Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010). Distinctiveness is
“often classified in categories of generally increasing distinctiveness[:] . . . (1) generic;
(2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco
Cabana, Inc., 505 U.S. 763, 768 (1992). “The existence of third-party registrations on
similar goods can bear on a mark’s conceptual strength. Specifically, third-party
registrations containing an element that is common to both the [Cited Registration]
and [Applicant’s] mark[] can show that that element has a normally understood and
well-recognized descriptive or suggestive meaning.” Spireon, 71 F.4th at 1363
(citations omitted). However, to do so, the third-party marks and goods generally
must be as similar to the mark and goods in the Cited Registration as is Applicant’s
mark and goods. See, e.g., In re Mighty Leaf Tea, 601 F.3d 1342, 1347 (Fed. Cir. 2010)
(“No additional evidence, or proffer, was presented to contravene the Board’s finding
that the third-party marks were not similar enough to the mark ML to establish that
there is a crowded field for the letters ‘ML.’”).

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Applicant asserts that it submitted evidence of “at least twenty-five (25) live third-
party registrations containing the term ‘TRU’ in connection with bras in Class 025.”9
Initially, we discount Applicant’s inclusion in its evidence of the two cited
registrations that are the basis for the Examining Attorney’s refusal here because
“[b]y definition, these are not ‘third-party registrations.’”10 Made in Nature, LLC v.
Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 228, at *32 (TTAB 2022). Next,
we find that 17 of the remaining registrations lack probative value because the marks
use the word “true” and not “tru” as Applicant claims. As such “none of the[se] marks
are as similar to the mark in the cited registration as is Applicant’s mark.” In re I-
Coat Co., LLC, No. 86802467, 2018 TTAB LEXIS 171, at *17 (TTAB 2018).11 In
addition to not containing the shared term “tru,” these registrations also contain
other distinguishing elements such as designs,12 and/or different additional terms
such as “complexion”, “kind”, “by rue 21”, and “Colorado”.13 We also do not consider
9 6 TTABVUE 12; November 18, 2025 Request for Reconsideration at 17-68.
Page references to the application file refer to the online database of the United States Patent
and Trademark Office’s (“USPTO”) Trademark Status & Document Retrieval (“TSDR”)
system. All citations to documents contained in the TSDR database are to the downloaded
.pdf versions of the documents.
10 November 18, 2025 Request for Reconsideration at 62-65.
11 Id. at 18-24, 27-30, 35-53, 56-59, 68. One of these registrations (Reg. No. 5947068) is also
cancelled and another registration subsequently deleted “bras” from the identification (Reg.
No. 5840275), and accordingly we do not consider those on that basis as well. Id. at 45, 47.
See In re Kysela Pere et Fils, Ltd., No. 77686637, 2011 TTAB LEXIS 70, at *7 (TTAB 2011)
(“‘dead’ or cancelled registrations have no probative value at all”). And one of the registrations
(Reg. No. 7434551) further lacks probative value because it does not cover “bras” as in the
Cited Registration, but rather “clothing straps for bras.” November 18, 2025 Request for
Reconsideration at 20.
12 November 18, 2025 Request for Reconsideration at 35, 43.
13 Id. at 37, 41, 56 and 58.

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an additional registration that covers the mark VERA NATURA because it does not
share any commonalities with the Cited Registration.14
The remaining five registrations do use the term “tru” – TRU IMANI, TRULIVS,
TRUNUDE, TRUSHADES, and .15 However, the marks do not use
the term “support,” but rather different words and elements resulting in “a differing
overall commercial impression” making them less similar to the Cited Mark than
Applicant’s Mark. See Made in Nature, 2022 TTAB LEXIS 228, at *29 (discounting
third-party registrations “containing additional elements, trademark formatives of
different grammatical syntax or having a differing overall commercial impression,
rendering many of them less similar to [o]pposer’s marks than [a]pplicant’s mark”).
Accordingly, we find that the evidence Applicant submitted does not demonstrate
that “tru” in the Cited Mark is conceptually weak.
Applicant also argues that the term “‘SUPPORT’ is merely descriptive of a feature
of Registrant’s bras; namely, that they provide physical support to the wearer” and
submitted evidence of five third-party registrations covering bras where “[t]he
14 November 18, 2025 Request for Reconsideration at 31. The registration certificate states
that “[t]he English translation of ‘VERA NATURA’ in the mark is ‘TRUE NATURE’.”
However, Applicant has not provided any evidence that consumers would be aware of this
translation, or that there is any basis to apply the doctrine of foreign equivalents here. See
Cielo e Terra, S.p.A. v. Hoteles y Viñedos del Valle de Guadalupe S.A. de C.V., No. 91287216,
2026 TTAB LEXIS 240, at *29-30 (TTAB 2026) (declining to apply the doctrine of foreign
equivalents to certain third-party marks when evaluating conceptual strength under the
sixth DuPont factor).
15 November 18, 2025 Request for Reconsideration at 25, 33, 54, 60, 66.

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USPTO has required the term ‘SUPPORT’ to be disclaimed.”16 Considered together
with the definition of “support” meaning “something that holds up or serves as a
foundation or prop”17 we find that the term “support” in the Cited Mark has some
conceptual weakness in relation to Registrant’s bras.
We also consider where the Cited Registration is classified on the spectrum of
distinctiveness. Given that the Cited Registration is “prima facie evidence of the
validity of the registered mark,’’ see Section 7(b) of the Trademark Act, 15 U.S.C.
§ 1057(b), we must assume that Registrant’s mark TRUSUPPORT is inherently
distinctive (i.e., at least suggestive), since it is registered on the Principal Register
without a claim of acquired distinctiveness under Section 2(f) of the Trademark Act.
See New Era, 2020 TTAB LEXIS 199, at *29-30. However, we do find that the Cited
Mark TRUSUPPORT is somewhat suggestive of the physical support offered to the
consumers of the “bras” in the Cited Registration, resulting in some overall
conceptual weakness. See Sports Auth. Mich., Inc. v. PC Auth., No. 91113785, 2002
TTAB LEXIS 65, at *66 (TTAB 2002) (“The term ‘Authority,’ . . . readily suggests that
[opposer] can provide customers ‘authoritative’ assistance.”).
16 6 TTABVUE 12-13. November 18, 2025 Request for Reconsideration at 69-77. Applicant
identified one of the marks as a pending application (6 TTABVUE 13), but it has since
proceeded to registration.
17 MERRIAM-WEBSTER DICTIONARY (2026) (https://www.merriam-webster.com/dictionary/
support), accessed October 7, 2026. The Board may take judicial notice of dictionary evidence,
In re Cordua Rests. LP, No. 85214191, 2014 TTAB LEXIS 94, at *6 n.4 (TTAB 2014), aff’d,
823 F.3d 594 (Fed. Cir. 2016), including from online dictionaries that exist in printed format
or regular fixed editions. In re Red Bull GmbH, No. 75788830, 2006 TTAB LEXIS 136, at *6-
9 (TTAB 2006).

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Considering the evidence together, we find that the Cited Registration has some
conceptual weakness, and as a result a slightly narrower scope of protection.
Accordingly, we find that this DuPont factor slightly weighs against a likelihood of
confusion.
B. Similarity of the Marks
We evaluate “[t]he similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression.” In re Detroit Athletic
Co., 903 F.3d 1297, 1303 (Fed. Cir. 2018) (citing DuPont, 476 F.2d at 1361).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, No. 87075988, 2018 TTAB LEXIS 170,
at *13 (TTAB 2018) (citation omitted). The marks “must be considered . . . in light of
the fallibility of memory . . . .” In re St. Helena Hosp., 774 F.3d 747, 751 (Fed. Cir.
2014) (citation omitted). The focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks. In re Bay
State Brewing Co., No. 85826258, 2016 TTAB LEXIS 46, at *6 (TTAB 2016) (citation
omitted).
Additionally, “[i]t is well-established that it is improper to dissect a mark, and
that marks must be viewed in their entireties.” Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012); Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 1341 (Fed. Cir. 2015) (“It is the mark in its ‘entiret[y]’
that must be assessed.”) (citing DuPont, 476 F.2d at 1361). However, “[t]here 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

Serial No. 98848901
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consideration of the marks in their entireties.” In re Nat’l Data Corp., 753 F.2d 1056,
1058 (Fed. Cir. 1985).
Applicant’s mark is TRU SUPPORT COMFORT YOU CAN FEEL and the Cited
Mark is TRUSUPPORT. In our comparison of the marks, we keep in mind our
determination that the cited mark has some conceptual weakness and as such a
slightly narrower scope of protection.
We agree with the Examining Attorney that “TRU SUPPORT” is the dominant
part of Applicant’s mark as it is the first part of the mark and it is nearly identical to
the Cited Mark TRUSUPPORT.18 See Palm Bay Imps., 396 F.3d at 1372 (“VEUVE”
is a “‘prominent feature’ as the first word in the mark and the first word to appear on
the label”); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 876
(Fed. Cir. 1992) (“upon encountering each mark, consumers must first notice this
identical lead word”). “[P]urchasers in general are inclined to focus on the first word
or portion in a trademark.” L’Oreal S.A. v. Marcon, No. 91184456, 2012 TTAB LEXIS
77, at *17 (TTAB 2012).
The fact that Applicant’s mark incorporates the Cited Mark in its entirety further
increases the similarity between the marks. Stone Lion Cap. Partners, L.P. v. Lion
Cap. LLP, 746 F.3d 1317, 1322 (Fed. Cir. 2014) (affirming “finding that [applicant’s]
‘STONE LION CAPITAL’ is ‘similar in sight, sound, meaning, and overall commercial
18 8 TTABVUE 4, 7. We also agree that the addition of a space in Applicant’s mark between
“Tru” and “Support” does not differentiate the marks. Id. at 5-6. See Seaguard Corp. v.
Seaward Int’l, Inc., No. 92013589, 1984 TTAB LEXIS 75, at *9 (TTAB 1984) (“the marks
‘SEAGUARD’ and ‘SEA GUARD’ are, in contemplation of law, identical”).

Serial No. 98848901
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impression’ to [opposer’s] ‘LION CAPITAL’ and ‘LION’”); See Bureau Nat’l
Interprofessionnel du Cognac v. Cologne, 110 F.4th 1356, 1370 (Fed. Cir. 2024)
(“When one mark incorporates the entirety of another mark, it has been found to be
similar.”). This is especially so because Applicant’s addition of “Comfort You Can
Feel” merely reinforces the message of physical support conveyed by the Cited Mark
TRUSUPPORT. See In re Mr. Recipe, LLC, No. 86040643, 2016 TTAB LEXIS 80, at
*21-22 (TTAB 2016) (“[T]he fact that the cited registered mark [JAWS] is
incorporated in full in Applicant’s mark [JAWS DEVOUR YOUR HUNGER]
increases the similarity between the two because, in this case, the addition of the
phrase ‘Devour Your Hunger’ calls to mind the shark from the JAWS movies.”).
Additionally, both Applicant’s and Registrant’s marks are standard character
marks which “make no claim to any particular font style, color, or size of display and,
thus, are not limited to any particular presentation.” Citigroup Inc. v. Capital City
Bank Grp., Inc., 637 F.3d 1344, 1349 (Fed. Cir. 2011). Thus, Applicant could display
its mark emphasizing “TRU SUPPORT”, including:
TRU SUPPORT
COMFORT YOU CAN FEEL
See Mr. Recipe, 2016 TTAB LEXIS 80, at *21 (finding standard character marks
similar where the applicant could emphasize the shared dominant wording by
displaying it above the remainder of the mark).
Applicant argues that the marks are dissimilar because “[t]he Cited Mark[]
convey[s] a concise product name suggesting literal support” and its mark “reads as
a unified promotional statement emphasizing sensory experience and consumer

Serial No. 98848901
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satisfaction.”19 Applicant asserts that its addition of “[t]he phrase ‘COMFORT YOU
CAN FEEL’ is neither incidental nor negligible. It transforms Applicant’s Mark from
a short, product-style designation into a full, slogan-like expression.”20 We agree with
the Examining Attorney that Applicant’s labeling of the marks as a “product name”
versus a “slogan” is not relevant given the required analysis of the marks examines
similarity in appearance, sound, connotation and commercial impression.21
To the extent Applicant claims that its mark is a unitary mark,22 we also agree
with the Examining Attorney that Applicant’s mark “will likely be perceived by
consumers as two standalone terms: ‘TRU SUPPORT’ and ‘COMFORT YOU CAN
FEEL’.”23 As Applicant itself recognizes, it has added the phrase “Comfort You Can
Feel” to the term “Tru Support.”24 The Federal Circuit explains that, “[a] unitary
mark has certain observable characteristics. Specifically, its elements are
inseparable. In a unitary mark, these observable characteristics must combine to
show that the mark has a distinct meaning of its own independent of the meaning of
its constituent elements.” Dena Corp. v. Belvedere Int’l, 950 F.2d 1555, 1561 (Fed.
19 6 TTABVUE 10.
20 Id.
21 See 8 TTABVUE 7-8.
22 6 TTABVUE 10; 9 TTABVUE 8-9.
23 8 TTABVUE 10.
24 6 TTABVUE 6 (referring to “the substantial additional phrase ‘COMFORT YOU CAN
FEEL’”), 10 (“[t]he phrase ‘COMFORT YOU CAN FEEL’ is neither incidental nor negligible”
and stating that “[t]he phrase ‘COMFORT YOU CAN FEEL’ creates an experiential,
evocative tone”); 9 TTABVUE 6 (referring to “[t]he phrase ‘COMFORT YOU CAN FEEL,’” in
its mark), 6-7 (referring to the “multi-word phrase that immediately follows the initial
wording” in its mark).

Serial No. 98848901
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Cir. 1991). Here, each of the constituent parts of Applicant’s mark retain their own
separate meaning, and Applicant identifies no distinctive meaning from their
combination. Specifically, as Applicant asserts, “Tru Support” means “structural” or
“literal support” offered by the goods.25 And “Comfort You Can Feel,” refers to
physical comfort provided by the goods.
Applicant also contends that Applicant’s mark and the Cited Mark convey
different commercial impressions with “Applicant’s Mark convey[ing] an experiential
message emphasizing the perceptible comfort of Applicant’s goods – namely, that the
wearer will experience tangible, noticeable comfort.”26 Whereas, Applicant asserts
the Cited Mark conveys the “literal support” of Registrant’s bras “without any
comparable experiential or promotional message.”27 Yet, offering literal or physical
support is in itself also an experiential message of the benefits offered by Registrant’s
goods. And even as framed by Applicant, both messages of comfort and support convey
similar meanings in relation to both Applicant’s and Registrant’s goods.
We agree with the Examining Attorney that Applicant’s “goods include footwear,
swimsuits, tops, bottoms, socks, and hosiery, each of which often include an element
of literal or structural ‘support’” which is demonstrated by evidence provided by the
Examining Attorney, including:
25 6 TTABVUE 8, 10.
26 9 TTABVUE 8.
27 6 TTABVUE 10; 9 TTABVUE 8.

Serial No. 98848901
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• Stoko (stoko.com): Advertises “Get Active and Stay Active With
Supportive Apparel,” “Feel Unrestricted Support,” and “Invisible Support
to Keep You Active” in relation to various pants and bottoms;28
• Comfrt (comfrt.com): Advertising in connection with sweatpants to “Pair
with the You Matter Hoodie for a full set that wraps you in softness,
intention, and support. Because comfort isn’t just how you feel--it’s how
you care for yourself.”;29 and
• Comfort Wear (comfortorthowear.com): “Women’s Comfort &
Supportive Shoes. Designed for comfort, relief, and daily support.”30
The Examining Attorney also provided evidence demonstrating that retailers
advertise the message that Applicant attributes to its mark and goods of “tangible,
noticeable comfort” wearers will experience, in connection with bras:
• Shapermint (shapermint.com): “Daily Comfort Wireless Shaper Bra”,
“Say . . . hello to all-day comfort with our Wireless Bra! . . . With extra-wide
straps, you’ll feel confident and comfortable all day, every day.”;31
• Evelyn Bobbie (evelynbobbie.com): “The Defy [bra] delivers natural
lift and all-day comfort without wires. Designed to move with you, it’s the
bra you’ll reach for every day - effortless, supportive, and beautifully
simple.”;32 and
• The Clea Collection (thecleacollection.com): “Clea molds to your
shape and supports naturally, giving you a smooth, lifted look that feels
effortless from morning to night.” And the “All-Day Comfort Bra” offers
“wire-free lift and support” and “stretchy fabric that adapts to your body.”
“Breathable fabric, wire-free lift, and comfort that doesn’t quit.”33
28 4 TTABVUE 5-7.
29 Id. at 13-15.
30 Id. at 20.
31 Id. at 26-27.
32 Id. at 34-35.
33 Id. at 41-42, 44.

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This evidence also show that consumers are accustomed to seeing messaging of
“support” and “comfort” together both in relation to Applicant’s goods and
Registrant’s goods which reinforces the overall similarity in meaning and commercial
impression. As such consumers are likely to view “Comfort You Can Feel” as merely
an additional informational or laudatory slogan added to the Cited Mark rather than
as a distinguishing element.
In view of the foregoing evidence and arguments, we find that Applicant’s addition
of the phrase “Comfort You Can Feel” to Registrant’s mark TRUSUPPORT “do[es]
little to alleviate confusion.” Charger Ventures, 64 F.4th at 1382 (no error in focusing
on dominant portions of SPARK LIVING and SPARK and affirming the marks were
confusingly similar). Our analysis does not improperly dissect the mark as Applicant
contends,34 but analyzes the mark in its entirety while appropriately giving more
weight to the dominant TRU SUPPORT portion. See In re Chatam Int’l Inc., 380 F.3d
1340, 1343 (Fed. Cir. 2004) (“Viewed in their entireties with non-dominant features
[ALE, JOSE and GOLD] appropriately discounted, the marks [GASPAR’S ALE for
beer and ale and JOSE GASPAR GOLD for tequila] become nearly identical.”).
Applicant’s addition here of the phrase “Comfort You Can Feel” is not distinguishing
as consumers will likely perceive the phrase as reinforcing the meaning of the “Tru
Support” offered by the goods. See In re i.am.symbolic, llc, No. 85916778, 2018 TTAB
LEXIS 281, at *13 (TTAB 2018) (“The slogan HAVE THE WILL reinforces the word
WILLPOWER”); Mr. Recipe, 2016 TTAB LEXIS 80, at *19 (found applicant’s mark
34 6 TTABVUE 10-11; 9 TTABVUE 5-7.

Serial No. 98848901
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JAWS DEVOUR YOUR HUNGER similar to Registrant’s mark JAWS because
“Jaws” “is the subject of the sentence or slogan JAWS DEVOUR YOUR HUNGER
and because DEVOUR YOUR HUNGER conveys the impression of an
explanatory slogan”).
Accordingly, considering the general recollection of the average purchaser, and
even with the slightly narrower scope of protection of the Cited Mark, we find the
marks similar, and that this factor supports a finding of likely confusion.
C. Similarity of the Goods, Channels of Trade, and Classes of
Consumers
Under the second and third DuPont factors, we analyze the “similarity or
dissimilarity and nature of the goods or services” and the similarity or dissimilarity
of trade channels and classes of consumers to whom Applicant’s and Registrant’s
goods are marketed. DuPont, 476 F.2d at 1361; Stone Lion Cap., 746 F.3d at 1322-23.
We must base our analysis for both factors on “the applicant’s goods as set forth in its
application, and the registrant’s goods as set forth in its registration.” i.am.symbolic,
866 F.3d at 1325 (citation omitted); Detroit Athletic, 903 F.3d at 1308 (third factor
“must be evaluated with an eye toward the channels specified in the application and
registration”).
“[I]t is not necessary that the products of the parties be similar or even
competitive to support a finding of likelihood of confusion.” Coach Servs., 668 F.3d at
1369 (citation omitted). Rather, the question is whether the “respective products are
related in some manner and/or if the circumstances surrounding their marketing are
such that they could give rise to the mistaken belief that they emanate from the same

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source.” Id. Put another way, the relevant inquiry is whether “consumers are
accustomed to seeing the applied-for and registered goods originating from the same
source[.]” Detroit Athletic, 903 F.3d at 1307 (citation omitted).
“Evidence of relatedness [of the goods] may include . . . advertisements showing
that the relevant goods are advertised together or sold by the same manufacturer or
dealer; or copies of prior use-based registrations of the same mark for both applicant’s
goods and the goods listed in the [C]ited [R]egistration.” In re Embiid, No. 88202890,
2021 TTAB LEXIS 168, at *30 (TTAB 2021) (citation omitted). “It is sufficient for
finding a likelihood of confusion if relatedness is established for any item
encompassed by the identification of goods within a particular class in the
application.” In re Samsung Display Co., No. 90502617, 2024 TTAB LEXIS 258, at *7
(TTAB 2024) (citation omitted); see also Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp.,
648 F.2d 1335, 1336 (CCPA 1981).
As for channels of trade and classes of consumers, where, as here, there are no
limitations in Applicant’s or the Cited Registration’s identifications of goods, we must
presume that the goods “travel in all normal channels and to all prospective
purchasers for the relevant goods.” Coach Servs., 668 F.3d at 1370.
Applicant’s goods are “footwear; clothing, namely, belts, dresses, gloves, jackets,
neckwear, pants, suits, swimwear, skirts, tops, bottoms, headwear, uniforms, shirts,
sweatshirts, sweatpants, shorts, sweaters, coats, wristbands, socks, hosiery, t-shirts,
scarves, caps, vests, and pullovers; headwear.” The goods in the Cited Registration
are “bras.”

Serial No. 98848901
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1. Applicant’s Cited Legal Authority
At the outset, we address Applicant’s reliance on In re British Bulldog, Ltd., No.
73354851, 1984 TTAB LEXIS 15 (TTAB 1984) and In re Sears, Roebuck & Co., No.
73502919, 1987 TTAB LEXIS 84 (TTAB 1987), which Applicant argues are “directly
relevant” precedent in which “the Board has repeatedly recognized that even legally
identical or highly similar trademarks may coexist for different categories of apparel,
including footwear or clothing versus bras and intimate apparel.”35 Applicant asserts
that “[t]he Examining Attorney’s analysis of the similarity of goods factor appears to
rest on the assumption that, because both parties’ products are classified under the
broad category of apparel in Class 025, they are necessarily related for purposes of
establishing a likelihood of confusion” and that such “reasoning is inconsistent with
[this] Board precedent.”36
Addressing Applicant’s later argument first, we find that the Examining
Attorney’s analysis does not turn on the categorization of Applicant’s and Registrant’s
goods in Class 25, but rather on specific evidence the Examining Attorney submitted
showing the relatedness of the goods as discussed in more detail in the sections below.
Turning to the cases on which Applicant relies, the Federal Circuit instructs that
“[t]he Board must decide each case on its own merits” and “the PTO’s allowance of
. . . prior registrations does not bind the Board or this court.” In re Nett Designs, Inc.,
236 F.3d 1339, 1342 (Fed. Cir. 2001). In particular, as recognized in both British
35 9 TTABVUE 10; 6 TTABVUE 6.
36 6 TTABVUE 7.

Serial No. 98848901
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Bulldog and Sears, each case must be decided on its own facts and evidentiary record.
British Bulldog, 1984 TTAB LEXIS 15, at *5 (“each case must be decided on its own
particular facts and circumstances”); Sears, 1987 TTAB LEXIS 84, at *4 (“each case
must be determined on the basis of all of the relevant facts and circumstances
presented therein”). We agree with the Examining Attorney that “neither of these
opinions appears to carry more than minimal persuasive value due to significant
differences in their facts and circumstances.”37
First, in British Bulldog, the Board stated that the “record contains no other
evidence” than two expired third-party registrations which the Board did not find
probative. British Bulldog, 1984 TTAB LEXIS 15, at *2, 7 n.3. In what the Board
deemed a “close case” the Board was not persuaded that “the facts and circumstances
in this case are conducive to a likelihood of purchaser confusion.” Id. at 8. The Board
based its decision on the differing commercial impression of the mark “PLAYERS”
when considered with the respective underwear and footwear, and on the differences
at the time the case was decided in how men’s underwear and shoes were purchased
in department stores. Id. at 7-8. None of these circumstances are present here or
supported by the record in this case.
Second, in Sears, the Board found that the examining attorney there “offered no
evidence” in support of the assertion that “it is common for producers of sportswear
to sell undergarments and sell them under the same mark” and the Board could not
take judicial notice of such a fact. Sears, 1987 TTAB LEXIS 84, at *5 n.5. Here, the
37 8 TTABVUE 14.

Serial No. 98848901
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Examining Attorney offered such evidence in the form of third-party registrations
and website screenshots. Additionally, in Sears, the applicant submitted a consent
agreement with the owner of the cited registration as well as supporting affidavits
from representatives of the applicant and the registrant stating that they were
unaware of any instances of actual confusion. Id. at *1-3, *6-7. The Board also
considered the “different meanings” of the mark CROSS-OVER which was suggestive
of the construction of the applicant’s bras, but “convey[ed] no such meaning when
applied to ladies’ sportswear.” Id. at *8-9. In what the Board again deemed a “close
case” it found that the facts in Sears supported no likelihood of confusion. Id.
However, these facts are missing from the case before us.
Applicant asserts that the Board recognized in these cases that where goods are
“distinct in nature and purpose” such as Registrant’s bras and Applicant’s “footwear
and non-intimate clothing products,” then they are not related.38 Yet, the proper
inquiry is not whether the goods are distinct, as Applicant’s and Registrant’s goods
do not need to be “similar or even competitive to support a finding of likelihood of
confusion.” Coach Servs., 668 F.3d at 1369 (citation omitted). As the Federal Circuit
explained, “even if the goods in question are different from, and thus not related to,
one another in kind, the same goods can be related in the mind of the consuming
public as to the origin of the goods. It is this sense of relatedness that matters in the
likelihood of confusion analysis.” Recot, Inc. v. Becton, 214 F.3d 1322, 1329 (Fed. Cir.
38 6 TTABVUE 7-8; see also 9 TTABVUE 10.

Serial No. 98848901
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2000). And the Examining Attorney’s evidence in this case demonstrates such
relatedness.
Accordingly, the “Board is not bound by [these] prior decisions involving different
records.” In re Lizzo LLC, No. 88466264, 2023 TTAB LEXIS 22, at *28 (TTAB 2023).39
As discussed below, the evidence in this case shows that the current retail
environment for clothing and bras has changed since the time the Board decided
these cases -- in particular given the advent of widespread internet shopping -- and
the record here demonstrates the similarity of the goods, trade channels and
consumers.40
2. Third-Party Registrations
The Examining Attorney submitted evidence of five use-based third-party
registrations and argues that this evidence “demonstrates that providers of ‘bras’ also
hold registrations for the same mark for goods such as clothing, footwear and
headwear.”41 Our review found that all five third-party registrations do cover one or
39 To the extent Applicant asserts that British Bulldog and Sears establish that intimate
clothing items would never be related to Applicant’s applied for footwear and other articles
of clothing, that would be a type of “per se” rule which the Board has stated it has “backed
away from.” British Bulldog, 1984 TTAB LEXIS 15, at *5.
40 Applicant makes two passing references to “purchasing considerations” in its briefs. (6
TTABVUE 9; 9 TTABVUE 10). The conditions under which sales are made is considered
under the fourth DuPont factor, DuPont, 476 F.2d at 1361, but Applicant does not submit
any arguments or evidence regarding that factor or otherwise directed to purchasing
considerations apart from the passing references. Accordingly, we do not consider the fourth
DuPont factor. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir.
2006) (“issues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived”) (citation omitted); In re Embiid, 2021 TTAB
LEXIS 168, at *11 n.26 (“Because there is no argument or record evidence directed to these
factors, we have not considered them in our analysis of the likelihood of confusion.”).
41 8 TTABVUE 12; May 12, 2025 Office Action at 12-21.

Serial No. 98848901
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more of the articles of clothing included in Applicant’s identification of goods as well
as covering bras, or a type of bra that falls within the goods in the Cited Registration.
Applicant does not discuss or otherwise address the Examining Attorney’s third-
party registration evidence. However, a review of Applicant’s third-party registration
evidence discussed above with regard to the strength of the Cited Mark shows that
an additional 15 use-based registrations include goods that fall within the
identifications of both Applicant’s Application and the Cited Registration.42 Although
these registrations are not probative of the conceptual strength of the Cited Mark
because the marks are dissimilar, they remain probative on the separate question of
relatedness of the goods because they cover both Applicant’s and Registrant’s goods
under a single mark.
Considered together, we find that the evidence of 20 third-party registrations
supports the relatedness of Applicant’s and the Cited Registration’s goods.
3. Third-Party Websites
The Examining Attorney also asserts that the screenshots she submitted from 12
third-party websites of various apparel retailers “demonstrate[] that multiple entities
provide clothing, including applicant’s tops, bottoms, hosiery, dresses, footwear, etc.
under the same mark as the goods listed in the registration[], namely, bras.”43
42 November 18, 2025 Request for Reconsideration at 18, 25, 27, 29, 31, 33, 35, 39, 43, 58, 66,
68, 72, 74 and 76.
43 8 TTABVUE 12-13.

Serial No. 98848901
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Our review showed that ten of the third-party websites44 offer one or more of the
articles of clothing included in Applicant’s identification of goods under the same
mark as bras in the Cited Registration, namely:
• Catherines (catherines.com): Catherines Electric Gold Stud Hardware
Wedge shoes, and Catherines Smooth & Chic Front Close Cotton Push Up
Bra;45
• Michael Kors (michaelkors.com): Michael Michael Kors Logo Stretch
Nylon Sports Bra, Michael Michael Kors Blake Signature Logo and
Leather Boot, and Michael Michael Kors Logo Tape Stretch Nylon Jacket;46
• Victoria’s Secret (victoriassecret.com): Pink Wink Push-Up
Balconette Bra, Pink Campus Cotton Tee, and Pink Flip Flops;47
• Under Armour (underarmour.com): Under Armour women’s sports
bras, and Under Armour women’s hoodie sweatshirt;48
• Spanx (spanx.com): Spanx Ponte Sleeveless Midi Dress, and Spanx
Wireless Minimizer Bra;49
• Lululemon (shop.lululemon.com): Lululemon Super-Soft Adjustable
Recovery Bra, and Lululemon Women’s Steady State Oversized Hoodie
sweatshirt;50
• Duluth Trading Co. (duluthtrading.com): Duluth Women’s High-
Impact Bonded Back-Clasp Bra, and Women’s Duluth Heritage Washed
Crewneck Tee;51
44 The Examining Attorney’s screenshots from shapermint.com and evelynbobbie.com show
only “bras” from the Cited Registration, and do not show any of Applicant’s applied-for goods.
See 4 TTABVUE 26-40.
45 August 27, 2025 Final Office Action at 9, 15.
46 Id. at 21, 25, 30.
47 Id. at 35, 40, 44.
48 Id. at 49, 51.
49 4 TTABVUE 47, 56.
50 Id. at 62, 69.
51 Id. at 76-77, 82.

Serial No. 98848901
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• Quince (quince.com): Quince Comfort Rib T-Back Bralette, and Quince
Polar Fleece Full-Zip Jacket;52
• Champion (champion.com): Champion Small “C” Midweight Crewneck
sweatshirt featuring “[t]onal ‘C’ logo embroidery at the chest”, Lightweight
Lounge Pants, with C Logo, and Spot Comfort High-Impact Sports Bra
with C Logo;53 and
• The North Face (thenorthface.com): The North Face Women’s
Elevation Bra, and The North Face Women’s Evolution Sketch Logo Half
Dome Short-Sleeve Tee.54
We find that these ten third-party uses also support the similarity of the Applicant’s
and Registrant’s goods.
Applicant argues that “[e]vidence that some brands offer multiple categories of
apparel under a single trademark does not establish that consumers expect all such
goods to emanate from the same source.”55 But such website evidence from ten
different retailers does establish relatedness in showing that “consumers are
accustomed to seeing the applied-for and registered goods originating from the same
source[.]” Detroit Athletic, 903 F.3d at 1306-07 (“Board did not err in finding
similarity between the respective goods and services” based on evidence from “several
third-party apparel retailers” offering applicant’s services and the cited registrant’s
goods) (citation omitted). We agree with the Examining Attorney that:
the evidence clearly establishes that both bras and other
clothing items, including applicant’s tops, bottoms, dresses,
coats, hosiery, and footwear, are commonly produced by the
same manufacturer, and are marketed to the same
consumers, under the same mark, and through the same
52 4 TTABVUE 86, 95.
53 Id. at 109, 111.
54 Id. at 113, 117-18.
55 9 TTABVUE 10.

Serial No. 98848901
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websites, thus establishing a very close relatedness
between bras and [Applicant’s applied-for] clothing.56
See Recot, 214 F.3d at 1328-29 (“evidence that several large companies produce and
sell both [parties’ goods]” was “extremely pertinent” to the analysis of the relatedness
of the goods).
These third-party uses also establish that the normal trade channels and classes
of consumers for Applicant’s goods overlap with Registrant’s goods. Specifically, the
Examining Attorney’s evidence shows ten third-party clothing retailers offering both
“bras” from the Cited Registration, and one or more articles of clothing from
Applicant’s application including footwear, jackets, pants, t-shirts, sweatshirts, and
dresses.57
Applicant argues that the website evidence is “legally insufficient” to establish
overlapping trade channels because “[e]ven where goods may appear in the same
retail establishment, such overlap is not dispositive” as “[t]he Board and the Federal
Circuit have both consistently held that goods are not related merely because they
are sold in the same type of store.”58 But the website evidence shows more than that
the goods are offered in the “same type of store,” it in fact shows the goods offered in
the same online retail stores.
Applicant also argues that “[c]onsumers regularly encounter bras in the context
of intimate apparel departments or at specialty retail establishments dedicated to
56 8 TTABVUE 16-17 (emphasis in the original).
57 See August 27, 2025 Final Office Action at 9-52; 4 TTABVUE 47-120.
58 6 TTABVUE 8.

Serial No. 98848901
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providing intimate apparel, while footwear and non-intimate clothing are marketed
and sold in distinct departments and other specialty stores.”59 However, we agree
with the Examining Attorney that Applicant provided no evidence to support these
claims,60 and “assertions of fact” in a brief are “not evidence under any of the relevant
rules.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018). Even if we
accepted Applicant’s unsupported assertions, as the Examining Attorney points out
Applicant’s goods include “hosiery,” which is defined as “socks and stockings; hose”,61
and “consumers would likely also encounter the [A]pplicant’s ‘hosiery’ in that same
‘intimate apparel department’ as bras.”62 Moreover, the Examining Attorney provided
evidence showing that in the current online retail environment Applicant’s and
Registrant’s goods are in fact sold by the same retailers, and even on the same pages
of the websites including:63
• Spanx: on the page offering a dress, Spanx includes a “Wear it With”
section featuring one of its bras and hosiery;64
• Lululemon: advertises “Outfit inspiration” which pairs its bras with
various footwear, pants, t-shirts, and headwear and on the same page
includes a “You may also like” section depicting additional bras and
shorts;65
59 6 TTABVUE 9.
60 8 TTABVUE 17.
61 THE AMERICAN HERITAGE DICTIONARY (2026) (https://ahdictionary.com/word/search.html?
q=hosiery), accessed October 7, 2026. The Board may take judicial notice of dictionary
evidence. See n.17.
62 8 TTABVUE 18.
63 Id. at 15-16.
64 4 TTABVUE 51.
65 Id. at 64.

Serial No. 98848901
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• Champion: advertises a “Discover” section featuring sweatshirts, bras,
and pants on the same page;66 and
• The North Face: advertises a “Just For You” section featuring various
jackets at the bottom of a page offering a bra.67
In addition, the website evidence also supports that the relevant classes of
consumers for Applicant’s and Registrant’s goods overlap. Specifically, the consumers
of Applicant’s and Registrant’s goods include women shopping for bras and other
articles of clothing such as pants, shorts, sweatshirts, and dresses, often to wear
together.
Overall, we find that the evidence of 20 third-party registrations and from ten
third-party retailers demonstrates the similarity of Applicant’s and Registrant’s
goods, trade channels, and consumers. Accordingly, the second and third DuPont
factors favor a finding of likelihood of confusion.
II. Conclusion
After reviewing the evidence of record, and the arguments relating thereto, we
conclude that confusion is likely. Applicant’s and Registrant’s marks are similar, and
the goods are related. Additionally, the trade channels and classes of consumers for
Applicant’s and Registrant’s goods are overlapping. These factors weigh in favor of a
likelihood of confusion. The Cited Registration has some conceptual weakness, but
this does not outweigh the other factors or alter our conclusion that confusion is
likely.
Decision: The refusal to register under Section 2(d) is affirmed.
66 4 TTABVUE 110-111.
67 Id. at 113-114.