Tribe of Two, LLC v. Katherine K. Vidal, Under Secretary of Commerce for Intellectual Property

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TRIBE OF TWO, LLC,
Appellant
v.
KATHERINE K. VIDAL, UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR OF THE UNITED STATES
PATENT AND TRADEMARK OFFICE,
Intervenor
______________________
2023-1193
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
91254933.
______________________
Decided: September 3, 2024
______________________
STEVEN E. K LEIN, Davis Wright Tremaine LLP, Port-
land, OR, argued for appellant. Also represented by G AYLE
ROXANNE ELINGS , New York, NY; N ICOLE MEDEIROS , San
Francisco, CA.
MICHAEL CHAJON, Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, argued for
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TRIBE OF TWO, LLC v. VIDAL 2
intervenor. Also represented by D ANIEL P ATRICK
D ONEGAN, CHRISTINA J. HIEBER , F ARHEENA YASMEEN
RASHEED.
______________________
Before P ROST , CLEVENGER , and STARK, Circuit Judges.
P ROST , Circuit Judge.
Tribe of Two, LLC (“Tribe of Two”) appeals from the
United States Trademark Trial and Appeal Board’s
(“TTAB”) dismissal of its opposition. The TTAB found that
Tribe of Two had failed to show a likelihood of confusion
between Eritaj Design Corporation’s (“Eritaj”) mark and
Tribe of Two’s registered marks. Tribe of Two, LLC v.
Eritaj Design Corp., No. 91254933, 2022 WL 4397523
(T.T.A.B. Sept. 19, 2022) (“TTAB Decision”). For the fol-
lowing reasons, we affirm.
BACKGROUND
On September 19, 2019, Eritaj “filed an application to
register the mark on the Principal Register for
‘clothing, namely, belts, hats, shirts, t-shirts, pants, socks
and shorts, sweat shirts, jackets, hoodies, joggers, sweat
pants, athletic pants and tops, headbands, wristbands’ in
International Class 25.” TTAB Decision, 2022 WL
4397523, at *1.
On March 28, 2020, Tribe of Two filed a Notice of Op-
position pleading under Trademark Act Section 2(d), 15
U.S.C. § 1052(d), that Eritaj’s mark is likely to be confused
with Tribe of Two’s marks and (respectively:
Registration No. 4377523, for “purses and wallets”; and
Registration No. 5924569, for “handbags, shoulder bags,
tote bags, satchels, purses, clutches, and wallets”), both in
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TRIBE OF TWO, LLC v. VIDAL 3
International Class 18. Id. During the opposition proceed-
ing, Tribe of Two submitted the following evidence: status
and title copies of its registered marks (shown above), in-
ternet materials to show the strength of its marks, third-
party registrations to show the relationship between
Eritaj’s and Tribe of Two’s goods, and internet materials to
show the relationship between their goods. J.A. 128.
The TTAB rejected Tribe of Two’s claims, concluding
that, “[n]otwithstanding the relationship between the
goods, and the overlapping channels of trade and classes of
consumers, because [Eritaj’s and Tribe of Two’s marks] are
visually distinct and create different commercial impres-
sions,” Tribe of Two “has failed to show by a preponderance
of the evidence a likelihood of confusion” between its marks
and Eritaj’s marks. TTAB Decision, 2022 WL 4397523,
at *8.
Tribe of Two appealed, and we have jurisdiction under
28 U.S.C. § 1295(a)(4)(B).
D ISCUSSION
We review the TTAB’s legal conclusions de novo and its
underlying factual findings for substantial evidence. In re
Pacer Tech., 338 F.3d 1348, 1349–50 (Fed. Cir. 2003). “De-
termination of likelihood of confusion is reviewed as a ques-
tion of law. It is necessarily a subjective determination,
and the effect of a design or style of letters, as any determi-
nation of likelihood of confusion, depends on the particular
facts.” In re Electrolyte Labs., Inc., 929 F.2d 645, 647
(Fed. Cir. 1990) (cleaned up). We also “review the Board’s
weighing of the DuPont factors de novo.” QuikTrip W., Inc.
v. Weigel Stores, Inc., 984 F.3d 1031, 1034 (Fed. Cir. 2021).
The Trademark Act states:
No trademark by which the goods of the applicant
may be distinguished from the goods of others shall
be refused registration on the principal register on
account of its nature unless it . . . [c]onsists of or
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TRIBE OF TWO, LLC v. VIDAL 4
comprises a mark which so resembles a mark regis-
tered in the Patent and Trademark Office, or a
mark or trade name previously used in the
United States by another and not abandoned, as to
be likely, when used on or in connection with the
goods of the applicant, to cause confusion, or to
cause mistake, or to deceive . . . .
15 U.S.C. § 1052(d) (emphasis added). Whether there is a
likelihood of confusion between a registered mark and an
applicant’s mark is determined by a 13-factor test, known
as the DuPont factors:
(1) The similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connota-
tion and commercial impression.
(2) The similarity or dissimilarity and nature of the
goods or services as described in an application or
registration or in connection with which a prior
mark is in use.
(3) The similarity or dissimilarity of established,
likely-to-continue trade channels.
(4) The conditions under which and buyers to
whom sales are made, i.e. “impulse” vs. careful, so-
phisticated purchasing.
(5) The fame of the prior mark (sales, advertising,
length of use).
(6) The number and nature of similar marks in use
on similar goods.
(7) The nature and extent of any actual confusion.
(8) The length of time during and conditions under
which there has been concurrent use without evi-
dence of actual confusion.
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TRIBE OF TWO, LLC v. VIDAL 5
(9) The variety of goods on which a mark is or is
not used (house mark, “family” mark, product
mark).
(10) The market interface between applicant and
the owner of a prior mark . . . .
(11) The extent to which applicant has a right to
exclude others from use of its mark on its goods.
(12) The extent of potential confusion, i.e., whether
de minimis or substantial.
(13) Any other established fact probative of the ef-
fect of use.
In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 1361
(CCPA 1973).
Tribe of Two argues that the TTAB (1) erred in its
DuPont factor analysis, finding the marks’ dissimilarity to
weigh against a likelihood of confusion; (2) should have
found the literal elements (letters “TT”) of Eritaj’s mark to
be dominant, thus looking and sounding the same as Tribe
of Two’s; and (3) should have found a likelihood of confusion
between the marks given that any doubt as to whether con-
fusion is likely is to be resolved in favor of the senior user—
Tribe of Two. We disagree.
We first reject Tribe of Two’s argument that the TTAB
erred in its DuPont analysis. In its likelihood of confusion
analysis, the TTAB expressly analyzed and addressed
DuPont factors (1), (2), (3), (5), and (12), TTAB Decision,
2022 WL 4397523, at *3–8, and “considered all of the argu-
ments and evidence of record, and all relevant DuPont fac-
tors,” id at *8. And though “[a]ny of the DuPont factors
may play a dominant role,” the TTAB found Eritaj’s and
Tribe of Two’s marks to be visually distinct and create dif-
ferent commercial impressions (factor 1), despite finding
overlapping goods and channels of trade and classes of con-
sumers (factors 2 and 3). Id.
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TRIBE OF TWO, LLC v. VIDAL 6
Second, we reject Tribe of Two’s argument that the
TTAB should have found the literal elements of Eritaj’s
mark to be dominant. The TTAB concluded that, although
the letters “TT” are discernible in Eritaj’s mark, “they do
not form the dominant impression. Instead, the inversion
of the letters T, the doubled horizontal lines, and the use of
negative space to create a rectangle among the vertical and
horizontal lines creates the impression of a rectangular ge-
ometric design.” TTAB Decision, 2022 WL 4397523, at *7.
This finding has substantial-evidence support. “[I]t is not
improper to state that, for rational reasons, more or less
weight has been given to a particular feature of the mark,
provided the ultimate conclusion rests on consideration of
the marks in their entireties.” Packard Press, Inc. v.
Hewlett-Packard Co., 227 F.3d 1352, 1357 (Fed. Cir. 2000);
see In re Nat'l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir.
1985) (“Indeed, this type of analysis appears to be unavoid-
able.”). The TTAB’s finding and analysis followed this
standard.
During oral argument, Tribe of Two devoted consider-
able time to argue that the TTAB overlooked possible col-
oring and shading of the letters “TT” of Eritaj’s marks,
which Tribe of Two asserts would allow an emphasis on the
letter Ts and deemphasize its stylized mark. Oral Arg.
at 2:41–5:31.1 But, as Tribe of Two conceded, “no, there
was no express argument that the Board should specifi-
cally consider . . . different shadings.” Id. at 6:15–23. It
was also barely noted in Tribe of Two’s appellate briefing.
We conclude that this argument was forfeited because it
was insufficiently developed. We therefore find no error by
the TTAB.
We turn finally to Tribe of Two’s argument that the
TTAB did not resolve doubts about likelihood of confusion
1 No. 23-1193, https://oralarguments.cafc.uscourts.g
ov/default.aspx?fl=23-1193_08082024.mp3.
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TRIBE OF TWO, LLC v. VIDAL 7
in Tribe of Two’s favor. Tribe of Two argues that “all doubts
as to whether confusion, mistake, or deception is likely
should be resolved in favor of the senior user.” Appellant’s
Br. 47 (citing In re Hyper Shoppes (Ohio), Inc., 837 F.2d
463, 464–65 (Fed. Cir. 1988), and Century 21 Real Est.
Corp. v. Century Life of Am., 970 F.2d 874, 878 (Fed. Cir.
1992)). Tribe of Two, however, has not identified where the
TTAB has expressed any doubt regarding a likelihood of
confusion between the marks. On de novo review, nor do
we. Like the TTAB, we find the marks so dissimilar that,
in this case, this single DuPont factor is dispositive. TTAB
Decision, 2022 WL 4397523, at *8. And unlike Century 21,
where the TTAB decision there noted that the case was
“difficult to resolve” and that “the prior mark is famous,”
970 F.2d at 878, neither circumstance is present here.
CONCLUSION
We have considered Tribe of Two’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm.
AFFIRMED
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