TESSCO Communications Incorporated v. Hefei Gejin Information Technology Co., Ltd.

This Opinion is Not a
Precedent of the TTAB
Mailed: November 26, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
TESSCO Communications Incorporated
v.
Hefei Gejin Information Technology Co., Ltd.
_____
Opposition No. 91286208
_____
James E. Shlesinger, Micah Gunn, and J. Spencer Sanders II of Fresh IP PLC
for TESSCO Communications Incorporated.
Adam D. Mandell and Geoffrey M. McNutt of Millen, White, Zelano & Branigan,
P.C., for Hefei Gejin Information Technology Co., Ltd.
_____
Before Larkin, Casagrande, and Bradley,
Administrative Trademark Judges.
Opinion by Bradley, Administrative Trademark Judge:
Hefei Gejin Information Technology Co., Ltd. (“Applicant”) seeks registration on
the Principal Register of the mark TESSCO in standard characters for “combs;
cutting boards; double wall cups with lids and straws; make-up brushes; strainers for
household purposes; training cups for infants; wood chopping boards for kitchen use”
in International Class 21.1
1 Application Serial No. 90824178, filed July 12, 2021, claiming first use and first use in
commerce on June 11, 2021 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a).

Opposition No. 91286208
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TESSCO Communications Incorporated (“Opposer”) opposes registration of
Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),
asserting priority and a likelihood of confusion with Opposer’s previously used and
registered marks. Opposer’s pleaded registered marks are described below:2
Mark Reg. No. Reg. Date Goods/Services
TESSCO
(typeset)3
1674656 February 4,
1992
“Distributorship services in the
field of cellular telephone and land
mobile radio equipment” in
International Class 42
TESSCO
TECHNOLOGIES
(typeset)
(“TECHNOLOGIES”
disclaimed)
1827048 March 15,
1994
“Distributorship services in the
field of cellular telephone and land
mobile radio equipment” in
International Class 42
TESSCO.COM
(typeset)
2381499 August 29,
2000
“Distributorship services in the
field of wireless communications
products” in International Class 35
2 1 TTABVUE 6-8. Opposer is the owner of record for the registrations which all have been
maintained and renewed. 18 TTABVUE 22-32. Opposer submitted certified copies prepared
and issued by the U.S. Patent and Trademark Office (“USPTO”) showing both the current
status of and title to the registrations, thereby making them of record pursuant to Trademark
Rule 2.122(d)(1), 37 C.F.R. § 2.122(d).
Although not identified on the ESTTA coversheet, Opposer also included allegations in its
Notice of Opposition regarding a dilution claim. 1 TTABVUE 10 ¶¶ 18-21. However, Opposer
did not pursue this claim in its brief and accordingly, it is deemed impliedly waived or
forfeited. Monster Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *3-4 (TTAB 2023)
(opposer waived claims that it did not argue in its brief).
Citations in this opinion to the briefs and other materials in the case docket refer to
TTABVUE, the Board’s online docketing system. The number preceding TTABVUE
corresponds to the docket entry number, and any numbers following TTABVUE refer to the
page(s) of the docket entry where the cited materials appear.
3 Prior to November 2, 2003, ‘standard character’ drawings were known as ‘typed’ or ‘typeset’
drawings. See In re Viterra Inc., 671 F.3d 1358, 1363 n.2 (Fed. Cir. 2012) (“until 2003,
‘standard character’ marks formerly were known as ‘typed’ marks”). A typed or typeset mark
is the legal equivalent of a standard character mark. TRADEMARK MANUAL OF EXAMINING
PROCEDURE (TMEP) § 807.03(i) (2025).

Opposition No. 91286208
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Mark Reg. No. Reg. Date Goods/Services
TESSCO
(typeset)
2613962 September 3,
2002
“Catalogs, newsletters and
bulletins published periodically in
the field of communications” in
International Class 16
TESSCO
(typeset)
2705928 April 15, 2003 “Computerized on-line retail
services in the field of
communications equipment and
accessories; business management
for others; inventory management
of telecommunications equipment
for others; computerized on-line
ordering services in the field of
communications equipment and
accessories; and delivery tracking
services” in International Class 35
“Custom packaging and delivery of
telecommunications equipment” in
International Class 39
“Training in the use of operation of
telecommunications equipment” in
International Class 41
“Technical consultation and
support in the filed [sic] of
communications and
telecommunications equipment,
namely, trouble shooting of
communications and
telecommunications equipment via
in person and electronic means;
and antenna, bandpass filter and
cavity type filter tuning services” in
International Class 42
Opposer also asserts prior common law use of the mark TESSCO for a wide range
of wireless products and accessories utilizing machine-to-machine wireless
technology including indoor and outdoor WIFI antennas, enclosures, cables,
connectors and cable assemblies, mounts, and accessories; powered enclosures, radio

Opposition No. 91286208
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specific solution remote monitoring components, towers, site hardware and mounting
solutions, wireless transmitters, communication infrastructure equipment, mobile
devices and accessories.4 Opposer alleges that it “also provides consultation,
engineering and design support for these products and systems.”5 Opposer further
asserts prior common law use of the mark TESSCO for “a variety of household use
and promotional items . . . including but not limited to, insulated metal cups, coffee
mugs, reusable straws, wine openers, hand sanitizers, masks, sunscreen, and
sanitizing wipes.”6
In its Answer, Applicant denied the salient allegations of Opposer’s Notice of
Opposition.7
The case is fully briefed.8 For the reasons set forth below, we dismiss the
opposition.
4 1 TTABVUE 8-9 ¶ 14.
5 Id. at 8 ¶ 14.
6 Id. at 9 ¶ 14.
7 4 TTABVUE. Applicant asserted five affirmative defenses, but the first three are merely
amplifications of its denials and not true affirmative defenses, so we do not address them as
such. Id. at 4-5 ¶¶ 24-26. See DeVivo v. Ortiz, No. 91242863, 2020 TTAB LEXIS 15, at *3
(TTAB 2020) (mere amplifications of the applicant’s denials not considered as separate
affirmative defenses). The fourth affirmative defense relates to a dilution claim that Opposer
did not pursue, so we do not consider it. 4 TTABVUE 5 ¶ 27. And as to the final alleged
defense, see 4 TTABVUE 5 ¶ 28, “[f]ailure to state a claim is not a true affirmative defense
and will be given no consideration because it relates to an assertion of the insufficiency of the
pleading rather than a statement of a defense to the merits of a claim.” SawStop, LLC v.
Felder KG, No. 91255905, 2025 TTAB LEXIS 351, at *3 n.5 (TTAB 2025) (citations omitted).
8 32 TTABVUE (Opposer’s brief); 39 TTABVUE (Applicant’s brief); 42 TTABVUE (Opposer’s
reply brief).

Opposition No. 91286208
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I. Preliminary Matters
A. Scope of Opposer’s Alleged Common Law Use for
Promotional Goods
Applicant moves in its trial brief to strike testimony and documentary evidence
that “refer or relate to Opposer’s alleged common law use of the TESSCO mark in
connection with household use and promotional items that were not specifically
pleaded or identified in the notice of opposition.”9 As noted above, in its Notice of
Opposition, Opposer pleaded common law use of the mark TESSCO in connection
with “a variety of household use and promotional items . . . including but not limited
to, insulated metal cups, coffee mugs, reusable straws, wine openers, hand sanitizers,
masks, sunscreen, and sanitizing wipes, and [asserted it] has been marketing these
goods for several years, and prior to any first use date that Applicant may claim.”10
At trial, Opposer submitted nearly identical testimony from two witnesses,
expanding the scope of its claimed use for “household use and promotional items” and
stating that:
As part of its business, Opposer, for many years, has
marketed and continues to market a wide variety of
household use and promotional items to customers,
potential customers, vendors, employees, and others. Such
items include, but are not limited to, metal cups, coffee
mugs, tumblers, koozies, reusable straws, bottle openers,
sanitizers, face masks, sunscreen, various clothing items,
such as pullovers, shirts, jackets, polos, hats, and socks,
backpacks, cases, safety glasses, light kits, first aid kits,
stain removers, distance measurers, towels, lanyards with
clips, sanitizing wipes, and a variety of cups and cup
holders, including but not limited to, faceplate dual cups,
9 39 TTABVUE 13-14.
10 1 TTABVUE 9 ¶ 14.

Opposition No. 91286208
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and self-adjusting double cup holders. All these items are
offered under the TESSCO trademark.11
Opposer also filed Exhibit 4 to the Price Declaration, a spreadsheet containing “a
complete listing of purchases from our supplier” for its household and promotional
items.12 This spreadsheet included additional goods not referenced in its Notice of
Opposition such as journals, pens, golf balls, umbrellas, tablecloths, adhesive note
cubes, mouse pads, stress balls, key chains, mini footballs, cigar cutters, basketball
sets, chocolate bars, poker chips, wooden crab mallets, coin holders, multitools,
camera covers, and flags.13
Allegations in a notice of opposition should “give the defendant fair notice of what
the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (cleaned up) (citation omitted); Fair Indigo LLC v. Style
Conscience, No. 91175571, 2007 TTAB LEXIS 89, at *6 (TTAB 2007) (“elements of
each claim should be stated concisely and directly, and include enough detail to give
the defendant fair notice”). Applicant asserts that “Opposer may not rely on any goods
not specifically pleaded or identified in the notice of opposition” because the
allegations did not provide fair notice of the basis for Opposer’s claims.14 Opposer
11 Young Declaration, 14 TTABVUE 7 ¶ 12; see also Price Declaration, 16 TTABVUE 4-5 ¶ 6.
12 Price Declaration, 14 TTABVUE 5 ¶ 6 and Exhibit 4, 15 TTABVUE (confidential).
13 Price Declaration, Exhibit 4, 15 TTABVUE (confidential). Opposer designated the entirety
of this exhibit as confidential. However, we do not consider the identification of items for
which Opposer asserts it has used its mark TESSCO as confidential given that such use, if
proven, is by definition public. See Trademark Rule 2.116(g) (“Board may treat as not
confidential that material which cannot reasonably be considered confidential,
notwithstanding a designation as such by a party.”).
14 39 TTABVUE 12-13.

Opposition No. 91286208
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emphasizes the “including but not limited to” language used in its allegations and
responds that its “testimony merely adds detail to already pleaded allegations.”15
Opposer argues that it
addressed the household use and promotional items
category of goods in its Notice of Opposition by listing eight
representative household use and promotional goods as
being not all inclusive in keeping with the intent of the
purpose of the Federal Rule of providing a brief statement
of the claim in the complaint to provide the Applicant with
fair notice of the claims against them.16
We agree with Applicant that the evidence Opposer submitted at trial regarding
these promotional goods exceeds the scope of its pleaded allegations and, to that
extent, Opposer has not provided fair notice to Applicant of the grounds on which
Opposer rests its likelihood of confusion claim based on common law use of its mark
TESSCO in connection with promotional goods. See Inter IKEA Sys. B.V. v. Akea,
LLC, No. 91196527, 2014 TTAB LEXIS 166, at *22 (TTAB 2014) (“opposer did not
plead common law use of its mark on fruit juices [and] [a]lthough opposer alleged use
of its IKEA mark on ‘food’ . . . that does not put applicant on notice that opposer is
claiming use of its mark on fruit juices”); Standard Knitting, Ltd. v. Toyota Jidosha
K. K., No. 91116242, 2006 TTAB LEXIS 9, at *41 n.18 (TTAB 2006) (not considering
alleged use in connection with leather products in determining priority where
“common law use on such items has not been pleaded by opposer”).17 Opposer’s use of
15 42 TTABVUE 4.
16 42 TTABVUE 5.
17 Opposer contends that “The Declarations of David Young and Jennifer Price fully support
the Opposer’s claims. It is noteworthy that Applicant had the opportunity to take the

Opposition No. 91286208
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the phrase “including but not limited to” is insufficient to provide fair notice especially
considering the wide variety of goods that could fall within “promotional” goods as
demonstrated by Opposer’s proffered evidence summarized above as well as its
assertion that the “TESSCO mark is displayed, marketed and used on tens of
thousands of products.”18 See, e.g., Phillies v. Phila. Consol. Holding Corp., No.
91199364, 2013 TTAB LEXIS 438, at *14 (TTAB 2013) (“Language in the notice of
opposition such as ‘including, but not limited to,’ . . . and thereafter reciting a long
list of goods and services, is vague and indefinite and does not provide fair notice of
. . . the specific goods and/or services upon which those marks are used.”).
Additionally, while Opposer asserts that the goods it did list in its Notice of
Opposition were “representative,” a cursory review shows that many of the new goods
clearly are different such as clothing, bags, chocolate, golf balls and poker chips.
However, Applicant’s request to limit Opposer’s common law use on promotional
goods to only those items specifically listed in the Notice of Opposition is too narrow
and unnecessary to provide the requisite fair notice. Some of the items identified in
testimony of David Young or Jennifer Price or cross-examine these witnesses for Opposer,
but Applicant elected not to.” 42 TTABVUE 5. Opposer misses the point in that these
declarations were not filed until its trial testimony period, and any testimony or cross-
examination at this late stage would not justify the expansion of its common law goods or
cure the lack of fair notice from the allegations in its notice of opposition.
18 42 TTABVUE 5; 14 TTABVUE 7 ¶ 13. Opposer’s cited cases (at 42 TTABVUE 4-5) are
inapposite and do not support its argument that its use of inclusive language provided
sufficient notice. Rsch. in Motion Ltd. v. NBOR Corp., No. 91179284, 2009 TTAB LEXIS 673
(TTAB 2009), did not discuss whether “specific goods were within the scope of the original
pleaded claim” or concern “wireless handheld devices” as Applicant asserts. And Mars, Inc.
v. PAGS Inc., No. 91221462, 2019 TTAB LEXIS 505, at *69-70 (TTAB 2019), also did not
address pleading issues, and the specific promotional goods the opposer referenced in that
case were used to demonstrate the wide variety of goods the opposer offered under DuPont
factor nine, not to expand the scope of the pleaded goods asserted against the applicant there.

Opposition No. 91286208
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the testimony and spreadsheet to which Applicant objects, while not stated in the
precise language used in the Notice of Opposition, reasonably fall within the types of
goods listed therein. Accordingly, we will consider evidence and testimony regarding
metal cups, coffee mugs, tumblers, koozies, reusable straws, bottle openers,
sanitizers, face masks, sunscreen, sanitizing wipes, cups, and cup holders.19 These
items are either specifically identified in the Notice of Opposition, or reasonably fall
within the categories of goods pleaded therein (in other words, they are encompassed
within the descriptions of one or more of the specifically-pleaded goods).
We do, however, strike Opposer’s testimony and documentary evidence of use of
its asserted common law mark on any goods that do not fall within the categories of
goods that Opposer pleaded in its Notice of Opposition. For example, Opposer did not
identify any clothing or bags in the Notice of Opposition so we strike the testimony
and associated evidence regarding “various clothing items, such as pullovers, shirts,
jackets, polos, hats, and socks, backpacks, cases.”20 We also will not consider
testimony and evidence regarding safety glasses, light kits, first aid kits, stain
removers, distance measurers, towels, and lanyards with clips. We further will not
consider evidence regarding the items we specifically list above from Exhibit 4 to the
Price Declaration as goods not referenced in its Notice of Opposition.21
19 We focused on the list of specific goods that Opposer’s witnesses identified in their
testimony. 14 TTABVUE 7 ¶ 12; 16 TTABVUE 4-5 ¶ 6. To the extent the record includes
evidence of other types of cups, mugs, glasses, straws, or any good that can reasonably be
categorized in one of the pleaded types of goods, we also will consider that evidence.
20 Young Declaration, 14 TTABVUE 7 ¶ 12; Price Declaration, 16 TTABVUE 4-5 ¶ 6.
21 We refer collectively to the goods we are not considering as the “Excluded Goods.”

Opposition No. 91286208
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B. Applicant’s Motion to Strike Opposer’s Rebuttal Notice of
Reliance
Applicant also moves in its trial brief to strike the entirety of Opposer’s Rebuttal
Notice of Reliance as either irrelevant and/or improper rebuttal.22 Opposer’s Rebuttal
Notice of Reliance contains the following evidence:
1) Opposer’s Registration No. 6246691 for the standard character mark,
TESSCO & YOU BUILDING OUR WIRELESS WORLD, TOGETHER
covering goods and services in International Classes 16 and 35 which
Opposer asserts “is relevant to the similarity of the marks at issue, and the
extent consumers will perceive the respective parties’ goods and services as
related, and the extent of a likelihood of confusion”;23
2) Applicant’s Application Serial No. 98886670 for the mark
(consisting of the stylized wording “Tessco For
You”) covering goods in International Class 21 which Opposer asserts
demonstrates “Applicant’s recent expansion of a line of goods”;24
3) 53 third-party trademark registrations which Opposer asserts “show the
similarity of the goods and services of the respective parties”;25
22 39 TTABVUE 9-11. Opposer argues that “this motion is both improper and untimely” and
quotes the TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 532 as
stating “Objections to a notice of reliance on substantive grounds . . . should not be raised by
motion to strike.” 42 TTABVUE 10-11. Yet, Opposer ignores the very next sentence in TBMP
§ 532, which states: “Rather, such objections should be raised in the objecting party’s brief
on the case, unless the ground for objection is one that could have been cured if raised
promptly by motion to strike.” Applicant did exactly that, it raised its substantive objections
to the notice of reliance in its brief, and as discussed herein the objections were not of the
type that could have been cured. Opposer does not otherwise provide any reason for how
Applicant’s motion is untimely.
23 31 TTABVUE 3, 135-139 (Exhibit E). The notice of reliance coversheet incorrectly identifies
Registration No. 6246001 (id. at 2), but Opposer’s Exhibit E contains a copy of the correct
Registration No. 6246691.
24 31 TTABVUE 3, 140-142 (Exhibit F). In its reply brief, Opposer also references a second
application filed by Applicant for the mark TESSCO OF FUN (42 TTABVUE 11), but Opposer
did not file a copy or any other evidence of this application so we do not consider it.
25 31 TTABVUE 3-129, 143-550 (Exhibit G).

Opposition No. 91286208
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4) Screenshots from Applicant’s storefront on Amazon.com which Opposer
asserts “represent Applicant’s use of the TESSCO Trademark on an
expanded line of goods from the Applicant’s application and assertion of use
during discovery” which is “relevant to the similarity of the goods and
services at issue and the extent of any potential confusion”;26 and
5) Screenshots of third-party uses of marks by owners of third-party
registrations which Opposer asserts “are relevant to the similarity of the
goods and services at issue under identical or similar marks, and the extent
of any potential confusion.”27
We grant Applicant’s request to strike the entirety of Opposer’s Rebuttal Notice
of Reliance for the following reasons. First, we strike Opposer’s Registration No.
624669128 because Opposer did not plead ownership of this registration, or of the
application underlying it, in its Notice of Opposition, nor did it seek to amend its
pleading to add this registration. See Harry Winston, Inc. v. Bruce Winston Gem
Corp., No. 91153147, 2014 TTAB LEXIS 284, at *9 n.14 (TTAB 2014) (“opposers may
not rely upon these unpleaded registrations as bases for their § 2(d) claims”); see also
Keystone Consol. Indus., Inc. v. Franklin Inv. Corp., No. 92066927, 2024 TTAB LEXIS
290, at *14 (TTAB 2024) (“giv[ing] no further consideration to the six unpleaded
registrations” submitted under a notice of reliance at trial). To the extent Opposer
asserts it needs this registration to respond to “newly discovered evidence” it filed in
rebuttal,29 as discussed below, we also find that this evidence is irrelevant to the
issues in this case.
26 31 TTABVUE 129-131, 551-583 (Exhibit H).
27 31 TTABVUE 131-132, 584-595 (Exhibit I).
28 31 TTABVUE 135-139 (Exhibit E).
29 42 TTABVUE 11. Opposer asserts that the filing of its additional trademark registration
was “timely and proper[ ]”, but fails to provide any explanation or argument in support of

Opposition No. 91286208
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Second, we strike Applicant’s Application Serial No. 98886670 and screenshots
from Applicant’s storefront on Amazon.com as irrelevant.30 Opposer contends that
this application was filed after Opposer’s trial testimony period ended and that:
Opposer has merely provided the Board with newly
discovered evidence, not available to Opposer before, which
shows that Applicant is in the process of rapidly expanding
its business with the use of the TESSCO mark on new
products and as the name of a store located on the Amazon
website, and that this expansion covers new products that
are related to the goods and services that Opposer
provides.31
However, the analysis of the similarity or dissimilarity of goods and services “requires
a comparison between the goods or services described in the [opposed] application
and those described in the [pleaded] registration[s].” Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1369 (Fed. Cir. 2012). Accordingly, the goods in a
different application for a different mark filed by Applicant, as well as any alleged
extrinsic evidence of use by Applicant with other goods is irrelevant and not
probative. Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed.
Cir. 2014) (proper for the Board “to focus on the application and registrations rather
than on real-world conditions, because the question of registrability of an applicant’s
this statement. Id. Opposer’s Registration No. 6246691 issued on January 12, 2021, well
before Opposer filed its Notice of Opposition instituting this proceeding on July 24, 2023. 31
TTABVUE 135; 1 TTABVUE. Accordingly, Opposer could have included this registration
with its initial pleading or sought to amend its pleading in a timely manner. Opposer also
does not explain how this registration for a different mark is relevant to the similarity of the
marks at issue in the case, or how it addresses the similarity of the goods and services for the
pleaded marks in the case.
30 31 TTABVUE 140-142 (Exhibit F), 551-583 (Exhibit H).
31 42 TTABVUE 11.

Opposition No. 91286208
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mark must be decided on the basis of the identification of goods set forth in the
application”) (citation omitted). With regard to timing, Opposer asserts that the
screenshots from Applicant’s Amazon storefront are “newly discovered evidence,” but
it provides no testimony on this evidence supporting its claim (e.g., regarding when
the storefront was discovered and how it was “new”), and other evidence in the record
establishes that Applicant has always offered its goods on Amazon.32 Accordingly, we
find that Opposer’s proffered evidence does not rebut Applicant’s evidence, but rather
improperly attempts to bolster its case-in-chief regarding the alleged similarities in
the parties’ goods and services. See Carefirst of Md., Inc. v. FirstHealth of the
Carolinas, Inc., No. 91116355, 2005 TTAB LEXIS 600, at *15-17 (TTAB 2005)
(excluding notices of reliance regarding “facts that might appropriately have been
introduced during the party’s case-in-chief”), aff’d, 479 F.3d 825 (Fed. Cir. 2007).33
Third, we strike the remaining evidence consisting of third-party registrations
and Internet printouts of third-party uses as improper rebuttal evidence.34 “Rebuttal
32 18 TTABVUE 212-213 (Resp. to Int. No. 1 that Applicant has sold cosmetic brushes,
cutting/chopping boards, seasoning jars, double-walled cups with lids and straws, training
cups, and combs through Amazon), 214 (Resp. to Int. No. 4 that “Applicant sells its goods
online through Amazon”), and 216 (Resp. to Int. No. 10 that “Applicant sells its good through
Amazon”).
33 Opposer also contends that evidence of Applicant’s use is relevant to the ninth DuPont
factor regarding “variety of goods on which a mark is or is not used (house mark, ‘family’
mark, product mark”. 42 TTABVUE 12; see In re E.I. DuPont DeNemours & Co., 476 F.2d
1357, 1361 (CCPA 1973) (“DuPont”). But this factor examines whether Opposer uses its
mark on a variety of goods, not Applicant. See DeVivo, 2020 TTAB LEXIS 15, at *44 (“If a
party in the position of plaintiff uses its mark on a wide variety of goods, then purchasers
are more likely to view a defendant’s related good under a similar mark as an extension of
the plaintiff’s line.”) (emphasis added). Further, Opposer’s trial brief did not assert that we
should find that the ninth factor favors it, so we consider this issue forfeited. See, e.g., In re
Embiid, No. 88202890, 2021 TTAB LEXIS 168, at *11 n.27 (TTAB 2021).
34 31 TTABVUE 143-550 (Exhibit G), 584-595 (Exhibit I).

Opposition No. 91286208
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evidence is supposed to be limited to that which is responsive to the adversary’s
evidence: . . . [it] must accomplish the function of rebuttal; to explain, repel,
counteract, or disprove the evidence of the adverse party.” Belden Inc. v. Berk-Tek
LLC, 805 F.3d 1064, 1081-82 (Fed. Cir. 2015) (citation omitted). Accordingly, during
Opposer’s rebuttal testimony period it was appropriate for it to “introduce evidence
and testimony to deny, explain or discredit facts and witnesses adduced by
[Applicant,] [but] [e]vidence is improper rebuttal . . . where it relates to a witness and
facts that might appropriately have been introduced during [Opposer’s] case-in-
chief.” Illyrian Imp., Inc. v. ADOL Sh.p.k., No. 91234244, 2022 TTAB LEXIS 91, at
*10-11 (TTAB 2022). Specifically, Opposer may not use the rebuttal testimony period
to merely “add[ ] to its proofs made as part of its case in chief.” United States Playing
Card Co. v. Harbro, LLC, No. 91162078, 2006 TTAB LEXIS 484, at *9 (TTAB 2006).
Here, the third-party registration and use evidence is merely additional evidence
of the same kind that Opposer itself recognizes was already filed during its trial
testimony period to show the relatedness of the goods and services.35 Opposer
improperly seeks to add to this proof on rebuttal. Opposer also makes no attempt to
identify what this third-party evidence is intended to rebut, and in any event the
relatedness of the goods and services is an element of the claim that Opposer should
have established in its case-in-chief. See Wet Seal, Inc. v. FD Mgmt., Inc., No.
35 See 18 TTABVUE 16, 19, 33-208 (Exhibits B and C) (third-party registrations and third-
party use submitted during Opposer’s trial testimony period “to show the similarity of the
goods and services at issue and the extent of any potential confusion”); 31 TTABVUE 129
(“These third-party registrations [submitted with the Rebuttal Notice of Reliance] and the
forty-two previous registrations submitted with Opposer’s Notice of Reliance are relevant to
show the similarity of the goods and services of the respective parties.”).

Opposition No. 91286208
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91157022, 2007 TTAB LEXIS 21, at *4 (TTAB 2007) (excluding third-party
registrations submitted to show relatedness of the parties’ goods as improper rebuttal
because “burden is on opposer, in the first instance, to come forward during its own
testimony period with proof of the essential elements of its claim, one element of
which is the relatedness of the parties’ goods”).36
Accordingly, we grant Opposer’s request to strike Opposer’s Rebuttal Notice of
Reliance in its entirety, and give these materials no consideration.
II. Trial Record
The record includes the pleadings, the file history of the opposed application, by
operation of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), and in view of our
discussion of preliminary matters in Section I above, the following materials
submitted by the parties during their respective trial periods:
A. Opposer
• Trial Declaration of David M. Young, Chief Financial Officer of Tessco
Technologies Incorporated and Opposer, (14 TTABVUE) (except for
testimony regarding the Excluded Goods);
• Trial Declaration of Jennifer Price, Director, Strategic Marketing for
Opposer, and Exhibits 1-4 thereto, (16 TTABVUE; 15 TTABVUE
(Confidential Exhibit 4)) (except for testimony and documentary evidence
regarding the Excluded Goods);
• Trial Declaration of Regina Nappo, paralegal of Fresh IP PLC, counsel for
Opposer, (17 TTABVUE);
36 To the extent that Opposer is attempting to use this evidence to show that the goods and
services in its unpleaded Registration No. 6246691 are similar to the goods covered by
Applicant’s Serial No. 98886670 (which is not the subject of this opposition), the evidence is
also irrelevant.

Opposition No. 91286208
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• Opposer’s Notice of Reliance (18 TTABVUE; 19 TTABVUE (Confidential
Exhibit D)) on:
o Exhibit A: Opposer’s pleaded registrations,
o Exhibit B: Third-party trademark registrations,
o Exhibit C: Screenshots of third-party websites,
o Exhibit D: certain of Applicant’s Supplemental Responses to
Opposer’s First Set of Interrogatories, and
o Exhibit E: Applicant’s Responses to Opposer’s First Set of Requests
for Admission.
B. Applicant
• Trial Declaration of Zhu Xiaomei, Intellectual Property Specialist for
Applicant, and Exhibit A thereto (22 TTABVUE (public); 21 TTABVUE
(confidential);
• Applicant’s First Notice of Reliance (24 TTABVUE) on:
o Exhibits A-F: Third-party trademark registrations, and
o Exhibits G-J: Screenshots from third-party websites;
• Applicant’s Second Notice of Reliance on third-party trademark
registrations and representative screenshots of various third-party
websites (27 TTABVUE (part 1 with Exhibits A-E); 25 TTABVUE (part 2
with Exhibits F-R)); and
• Applicant’s Third Notice of Reliance on screenshots from Opposer’s website
at www.tesco.com (26 TTABVUE).
III. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action is an element of the plaintiff’s case in
every inter partes proceeding. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298,
1304-05 (Fed. Cir. 2020); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM,
LLC, 965 F.3d 1370, 1373-74 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 128 (2014)). Opposer, as the plaintiff in the

Opposition No. 91286208
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action, must show its entitlement to a statutory cause of action by demonstrating (i)
an interest falling within the zone of interests protected by the statute, and (ii) a
reasonable belief in damage proximately caused by the registration of the mark.
Corcamore, 978 F.3d at 1305-06; Mars Generation, Inc. v. Carson, No. 91224726, 2021
TTAB LEXIS 386, at *8 (TTAB 2021).
Here, Opposer established its entitlement to oppose Applicant’s mark by making
its pleaded registrations of record which form the basis for a plausible Section 2(d)
likelihood of confusion claim.37 See Conopco, Inc. v. Transom Symphony OpCo, LLC,
No. 91256368, 2022 TTAB LEXIS 194, at *10 (TTAB 2022); Made in Nature, LLC v.
Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 228, at *19 (TTAB 2022).
IV. Priority
Opposer asserts “priority of use [is] not [at] issue[ ] due to Opposer’s prior use of
TESSCO as a company name and trademark and Opposer’s TESSCO registrations of
record.”38 Opposer pleaded priority based both on its registrations and on its common
law use of the mark TESSCO in connection with promotional goods.39
37 18 TTABVUE 22-32.
38 32 TTABVUE 6. With regard to Opposer’s reference to use of TESSCO as a “company
name,” Opposer did not plead likelihood of confusion based on trade name use or use
analogous to trademark use, and has not otherwise submitted evidence or arguments in its
trial brief regarding such use, so we do not consider it. 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); Cent. Garden & Pet Co. v. Doskocil Mfg. Co., No. 91188816, 2013 TTAB
LEXIS 439, at *19 (TTAB 2013) (“reliance on priority through analogous use must be
pleaded”).
39 1 TTABVUE 5-7, 9 ¶¶ 5-10, 14.

Opposition No. 91286208
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A. Opposer’s Registrations
Opposer’s pleaded registrations are of record showing active status and Opposer’s
ownership,40 and Applicant has not filed any counterclaims to cancel the
registrations. Accordingly, priority is not at issue with respect to the registered marks
and the goods and services identified in the registrations. See King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1402 (CCPA 1974); Nkanginieme v.
Appleton, Opp. No. 91256464, 2023 TTAB LEXIS 64, at *11-12 (TTAB 2023).
B. Opposer’s Common Law Use on Promotional Goods
With regard to Opposer’s assertion of common law rights for the mark TESSCO
in connection with household and promotional goods, Opposer must demonstrate it
owns “a mark or trade name previously used in the United States . . . and not
abandoned.” 15 U.S.C. § 1052(d); SawStop, 2025 TTAB LEXIS 351, at *11-12. To
establish such prior common law rights, Opposer “must prove by a preponderance of
the evidence that its mark[] is distinctive, inherently or otherwise, and that [it]
acquired rights in the mark[] prior to any date on which Applicant can rely.” Major
League Baseball Players Ass’n v. Chisena, No. 91240180, 2023 TTAB LEXIS 117, at
*24 (TTAB 2023), appeal docketed, No. 23-2073 (Fed. Cir. June 26, 2023).
Applicant “may rely without further proof upon the filing date of its application
as a ‘constructive use’ date for purposes of priority.” Moreno v. Pro Boxing Supplies,
Inc., No. 91214580, 2017 TTAB LEXIS 299, at *19 (TTAB 2017). Here, Applicant filed
the opposed application on July 12, 2021. Additionally, Opposer does not contest, and
40 18 TTABVUE 22-32.

Opposition No. 91286208
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in fact cites evidence in its reply brief regarding, Applicant’s offering in the United
States of several of the goods identified in the opposed application prior to the
application filing date including:
• chopping boards since April 2, 2021;
• double-walled cups with lids and straws and training cups since April 8,
2021; and
• cosmetic brushes since June 12, 2021.41
Accordingly, we find that Applicant’s priority date is April 2, 2021.
As such, we evaluate Opposer’s evidence in connection with the promotional goods
we have determined to have been properly asserted in this proceeding to determine
if Opposer establishes use prior to April 2, 2021.42 In considering the testimony and
evidence of priority, we “look at the evidence as a whole, as if each piece of evidence
were part of a puzzle which when fitted together, establishes prior use.” W. Fla.
Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122, 1125-26 (Fed. Cir. 1994).
1. Opposer’s Common Law Mark TESSCO is Distinctive
We first find that Opposer’s common law mark TESSCO in connection with
promotional goods “is distinctive as a whole since there is an absence of evidence or
argument showing otherwise.” DowntownDC Bus. Improvement Dist. v. Clarke, No.
91275100, 2024 TTAB LEXIS 412, at *37 (TTAB 2024). Applicant does not contend
otherwise. Nothing in the record indicates that TESSCO has any meaning or
41 42 TTABVUE 9; 18 TTABVUE 212-213 (Applicant’s response to Int. No. 1); 22 TTABVUE
4-5 ¶ 7.
42 See supra Section I.A.

Opposition No. 91286208
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significance as applied to promotional goods, and accordingly it is inherently
distinctive. See Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 1340
(Fed. Cir. 2004) (“A mark that is fanciful, arbitrary, or suggestive is considered to be
inherently distinctive, and thus automatically qualifies for trademark protection
under 15 U.S.C. § 1051.”).
2. Analysis of Opposer’s Evidence of Common Law Use
Opposer relies on the declarations of Mr. Young, its Chief Financial Officer, and
Ms. Price, Director of Strategic Marketing, and the associated exhibits to support that
it has priority for its common law use of the mark TESSCO in connection with
promotional goods.43 Applicant contends that these witnesses’ “testimony is fraught
with ambiguity and uncertainty, and thus insufficient to establish prior use of the
TESSCO mark for the pleaded items [and that] [t]he exhibits to Ms. Price’s
declaration are similarly ambiguous and uncertain.”44
Mr. Young and Ms. Price both testified that “Opposer, for many years, has
marketed and continues to market a wide variety of household use and promotional
items to customers, potential customers, vendors, employees, and others.”45 However,
the statement “for many years” is too vague and uncertain to establish any particular
date or priority, Mr. Young’s testimony does not contain any exhibits corroborating
his testimony or providing any dates, and Ms. Price’s testimony does not reference
any exhibits in connection with that statement. See Shenzhen IVPS Tech. Co. v. Fancy
43 42 TTABVUE 5-9; 14 TTABVUE; 16 TTABVUE.
44 39 TTABVUE 20; see also 39 TTABVUE 14-21.
45 14 TTABVUE 7 ¶ 12; 16 TTABVUE 4 ¶ 6.

Opposition No. 91286208
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Pants Prods., LLC, No. 91263919, 2022 TTAB LEXIS 383, at *27 (TTAB 2022)
(“Broad general statements by a witness that lack sufficient detail are usually not
adequate [to establish prior use], especially in the absence of corroborating
documentary evidence.”).
Both Mr. Young and Ms. Price testify similarly that “[f]or the fiscal years 2022
and 2023 alone, more than 6,000 of these [promotional] items were produced and
shipped.”46 However, we agree with Applicant that neither Mr. Young nor Ms. Price
“explain or specify what time period is encompassed by a ‘fiscal year’” such that this
testimony is also insufficient to establish use before Applicant’s April 2, 2021, priority
date.47 Additionally, the language “produced and shipped” is unclear as to whether
these items were shipped to consumers, internal shipments to Opposer, or something
else.48
Ms. Price testifies that “[s]ince August, 2017, pursuant to a Customer Agreement,
Opposer has worked with Webb-Mason, Inc., of Hunt Valley, Maryland, to provide us
with products either directly and/or via web-based solutions that we desire to
purchase” and delineates a list of items including metal cups, coffee mugs, bottle
openers, face masks, etc.49 Ms. Price also attaches an exhibit containing “[f]or the six-
46 14 TTABVUE 7 ¶ 12; 16 TTABVUE 5 ¶ 6 (“For the fiscal years 2022 and 2023 alone, more
than 6,000 such items were produced and shipped.”).
47 39 TTABVUE 16-17 and n.6. The 2022 fiscal year would need to encompass a time period
prior to Applicant’s April 2, 2021 priority date which seems unlikely under any definition.
48 Ms. Price’s additional statement regarding the producing and shipping of promotional
items that “[t]his has been an ongoing service of Opposer from well before I was employed by
Tessco” is similarly vague both as to what producing and shipping means and as to a time
frame. See 16 TTABVUE 5 ¶ 6.
49 16 TTABVUE 4 ¶ 6.

Opposition No. 91286208
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year period beginning January, 2017, and ending December, 2022 . . . a complete
listing of purchases from our supplier, Webb- Mason marked as Exhibit 4.”50 Ms. Price
testifies that “[a]ll products listed in Exhibit 4 prominently display our trademark,
Tessco.”51 While the testimony and exhibit includes dates that precede Applicant’s
April 2, 2021 priority date, none of it establishes Opposer’s priority because it reflects
only Opposer’s internal purchase of items from its supplier, and not any distribution
to the consuming public. See NASDAQ Stock Mkt., Inc. v. Antartica, S.r.l., No.
91121204, 2003 TTAB LEXIS 391, at *29 (TTAB 2003) (evidence did not establish
priority where “the testimony is vague concerning actual distribution; and the
exhibits to testimony corroborate purchases by opposer, not from opposer”); Morgan
Creek Prods., Inc. v. Foria Int’l Inc., No. 91173806, 2009 TTAB LEXIS 445, at *33-37
50 16 TTABVUE 5 ¶ 6; 15 TTABVUE (Exhibit 4) (confidential). Applicant criticizes Exhibit 4
because beginning on the first page, “the list of invoice numbers with amounts of items
ordered and invoice dates . . . does not indicate the specific items that were ordered.” 39
TTABVUE 19. Additionally, Applicant argues, “[t]he product descriptions subsequently listed
(beginning on page 16) containing PO numbers do not correspond to the preceding invoice
numbers, and Ms. Price did not explain how the product descriptions and invoice numbers
correspond and align, if at all.” Id. Opposer responds that “Exhibit 4 indicates each specific
item ordered in the fifth column of the table. As the columns of the table are too wide to fit
on one page, the product description or last column of the table appears on its own [starting
at 15 TTABVUE 17], an artifact of printing the table to pdf as required by the Board’s filing
system.” 42 TTABVUE 8-9. We confirm that with Opposer’s additional information, we
understood and considered the information presented in Exhibit 4. The better practice is to
use landscape orientation when printing wider tables to pdf. to avoid the issue, or make clear
in the accompanying testimony how the depiction of a table was altered when converting the
format for filing.
51 16 TTABVUE 5 ¶ 6.

Opposition No. 91286208
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(TTAB 2009) (priority not established for clothing given away as promotional items
because “the clothing does not appear to be given to the public at large”).52
Ms. Price testifies that “[t]hese [promotional] items have been offered and
distributed at trade shows, mini trade shows, and entertainment events such as golf
tournaments and major league baseball games. Almost all of these items are offered
under the TESSCO trademark.”53 But Ms. Price’s testimony is vague as to any timing,
as she does not mention any dates or identify any particular trade show, event, etc.,
and is further indefinite when she testifies that “almost all” of the items distributed
on unspecified dates contained the mark TESSCO. As the Board explained in
NASDAQ Stock Mkt., 2003 TTAB LEXIS 391, at *29:
[T]he vague or imprecise nature of the . . . testimony . . .
prevents opposer from meeting its burden of proof . . .
[because while the witness] was expansive in his testimony
52 A party’s use of its mark in connection with promotional goods can be sufficient in
appropriate circumstances to establish common law rights in its mark for such goods, and we
agree that, as Opposer argues (32 TTABVUE 23), such goods do not have to be sold, but
rather may be giveaways. See Morgan Creek Prods., 2009 TTAB LEXIS 445, at *33-37 (to
establish common law rights in promotional items opposer must “demonstrate that it has
used its mark in a regular or recurring manner so that the consuming public would be aware
that opposer offers the goods under the mark and therefore associate opposer’s mark with
the goods”). However, at most Opposer’s evidence here only shows its own ordering of the
promotional items, and transport of such items to Opposer. This does not establish any
trademark rights for the mark TESSCO in connection with such goods. See Lens.com, Inc. v.
1-800 Contacts, Inc., 686 F.3d 1376, 1380 (Fed. Cir. 2012) (“not every transport of a good is
sufficient to establish ownership rights in a mark . . . [and] [i]n assessing rights stemming
from transportation, courts and commentators have required an element of public awareness
of the use”) (citations omitted); NASDAQ Stock Mkt., 2003 TTAB LEXIS 391, at *45-47
(collateral products used for promotion may be considered a “good in trade” where it is “sold
or transported in commerce”) (emphasis added). We also agree with Opposer that it does
not need to be a manufacturer of the promotional products to own the mark (32 TTABVUE
22), but the issue here is not that the Opposer did not manufacture items, but that the only
evidence we have regarding such items shows Opposer’s purchasers from the supplier and
transport to Opposer, not giveaways to the public or transport to others.
53 16 TTABVUE 5 ¶ 6.

Opposition No. 91286208
- 24 -
regarding distribution of branded products at sponsored
sporting events, he generally did not testify to specific
dates so as to establish that NASDAQ-branded ski goods,
tennis goods, golf goods, or baseballs were distributed prior
to applicant’s filing date.
Ms. Price also provides an exhibit containing a copy of “a Tessco Swag Source User
Tip Sheet dated March 16, 2020” which “provid[es] members with an easy way for
placing orders for said household and promotional items offered by Opposer.”54 While
the March 16, 2020 date precedes Applicant’s April 2, 2021 priority date, a review of
the sheet confirms that this too reflects only internal use by Opposer. For example,
the sheet designates that it is for use by “team members,” requires a username and
password to place an order, and specifies that “[s]ome orders require your manager’s
approval before being processed.”55
The remaining testimony and documentary evidence in the record relating to
promotional goods is not associated with any date:
• Opposer’s Ms. Price testifies: “Our products may be purchased directly from
our website, www.tessco.com. Examples of inexpensive products available
for purchase from our website include cable ties, cleaning brushes, and cup
holders.”56 But Ms. Price does not attach any documentary evidence
regarding the products offered for sale on its website (e.g., dated
screenshots), does not state that all such products bear the mark TESSCO,
and most importantly does not provide any information regarding when
these products have been available for purchase from the website.
• Ms. Price also provides an exhibit consisting of photographs of “a display of
TESSCO packaging from one our distribution facilities representative of
the use of the TESSCO mark on virtually all of the products we market,
54 16 TTABVUE 5 ¶ 6, 22-24 (Exhibit 3).
55 16 TTABVUE 23-24.
56 16 TTABVUE 3 ¶ 4.

Opposition No. 91286208
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distribute and sell.”57 However, the photographs are undated and Ms.
Price’s testimony does not reference any date or time period.
• Ms. Price also provides an exhibit containing “[p]ictures of representative
[promotional] items” including a bottle opener, hand sanitizer, face mask,
mug, reusable straw, sunscreen & lip balm, water bottles, wine stopper, and
sanitizing wipes.58 However, the photographs are again undated and Ms.
Price’s testimony does not reference any date or time period, or when
Opposer distributed any of the items.59
C. Conclusion on Priority
Considering the evidence as a whole, Opposer has not established priority for its
use of the mark TESSCO in connection with promotional goods. Much of Opposer’s
testimony and evidence is vague and indefinite as to any date or time frame. The
evidence that does provide specific dates reflects only Opposer’s internal purchases
or orders of promotional goods from its third-party supplier, and not any distribution
to the consuming public. Accordingly, Opposer has established priority only with
respect to the marks and goods and services reflected in its pleaded registrations. As
such, we consider only these registered marks and goods/services in our analysis of
likelihood of confusion.
V. Likelihood of Confusion
To prevail on its Section 2(d) claim, Opposer must show by a preponderance of the
evidence that “use of Applicant’s mark is likely to cause confusion, mistake, or
deception as to the source or sponsorship of Opposer’s goods [and services].” DC
57 16 TTABVUE 4 ¶ 5, 7-9 (Exhibit 1).
58 16 TTABVUE 5 ¶ 6, 10-21 (Exhibit 2).
59 To the extent Opposer intended these photographs to represent items it shipped in fiscal
years 2022 and 2023, we already determined above that these dates did not precede
Applicant’s April 2, 2021 priority date.

Opposition No. 91286208
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Comics v. Cellular Nerd LLC, No. 91246950, 2022 TTAB LEXIS 453, at *23-24 (TTAB
2022) (citing Cunningham v. Laser Golf Corp., 222 F.3d 943, 951 (Fed. Cir. 2000)).
Our determination under Section 2(d) of the Trademark Act involves an analysis
of all of the probative evidence of record that is relevant to the factors bearing on a
likelihood of confusion. See DuPont, 476 F.2d at 1361; 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)). “Not all of the DuPont
factors are necessarily relevant or of equal weight in a given case, and any one of the
factors may control a particular case.” Tiger Lily Ventures Ltd. v. Barclays Cap. Inc.,
35 F.4th 1352, 1362 (Fed. Cir. 2022) (internal quotation marks omitted).
We focus our likelihood of confusion analysis on the standard-character mark
TESSCO in Opposer’s pleaded Registration Nos. 1674656 for “distributorship
services in the field of cellular telephone and land mobile radio equipment”, 2613962
for “catalogs, newsletters and bulletins published periodically in the field of
communications,” and 2705928 for various services in the field of communications
and telecommunications equipment and accessories (collectively “Opposer’s
Registrations”). These registrations are the closest of Opposer’s pleaded registrations
to Applicant’s mark TESSCO. Monster Energy, 2023 TTAB LEXIS 14, at *16-17
(focusing analysis on “the pleaded registrations that ha[ve] the most points in
common with [a]pplicant’s mark”). “If we do not find a likelihood of confusion with

Opposition No. 91286208
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respect to these marks and their goods [and services], then there would be no
likelihood of confusion with the marks and [services] in [Opposer’s] other
registrations.” Look Cycle Int’l v. Kunshan Qiyue Outdoor Sports Goods Co., No.
92079409, 2024 TTAB LEXIS 289, at *10-11 (TTAB 2024).
A. Strength and Fame of Opposer’s Mark
Before we compare the parties’ marks, we consider the strength, including any
fame, of Opposer’s mark TESSCO, as that may affect its scope of protection. See
DuPont , 476 F.2d at 1361 (listing “(5) The fame of the prior mark (sales, advertising,
length of use)” and “(6) The number and nature of similar marks in use on similar
goods” as confusion factors). Analysis of the fifth and sixth DuPont factors together
determines the strength of a mark. Spireon, 71 F.4th at 1362 (“Two of the DuPont
factors (the fifth and sixth) consider strength.”). “[T]he strength of a mark is not a
binary factor” and “varies along a spectrum from very strong to very weak.” Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340 (Fed. Cir. 2015) (internal
citations omitted). “The weaker an opposer’s mark, the closer an applicant’s mark can
come without causing a likelihood of confusion and thereby invading what amounts
to its comparatively narrower range of protection.” Id. at 1338 (internal citations
omitted).
In evaluating the strength of a mark, we consider both its conceptual strength,
based on the nature of the mark itself, and if there is probative evidence in the record,
its commercial strength, and any fame, based on marketplace recognition of the mark.
In re Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010) (“A mark’s
strength is measured both by its conceptual strength … and its marketplace strength

Opposition No. 91286208
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…”.); New Era Cap Co. v. Pro Era, LLC, No. 91216455, 2020 TTAB LEXIS 199, at
*28-29 (TTAB 2020) (considering “inherent strength, based on the nature of the mark
itself, and, if there is evidence in the record of marketplace recognition of the mark,
its commercial strength”).
Applicant contends that Opposer’s mark TESSCO is entitled to a narrower scope
of protection because it co-exists with similar third-party registrations and uses.60
Opposer contends that its mark TESSCO is conceptually and commercially strong.61
We address both positions below.
1. Conceptual Strength of Opposer’s Mark
Beginning with conceptual strength, Opposer’s mark TESSCO is inherently
distinctive, i.e., at least suggestive, “as evidenced by its registration on the Principal
Register without a claim of acquired distinctiveness under Section 2(f) of the
Trademark Act.” New Era, 2020 TTAB LEXIS 199, at *29. See also Chippendales, 622
F.3d at 1351 (“marks that are arbitrary, fanciful, or suggestive are inherently
distinctive”); 15 U.S.C. § 1057(b) (“registration of a mark upon the principal register
. . . shall be prima facie evidence of the validity of the registered mark”).
Evidence of third-party registrations and use, which Applicant provided in this
case, may also bear on the conceptual strength of Opposer’s marks. “Third party
registrations are relevant to prove that some segment of the composite marks which
both contesting parties use has a normally understood and well-recognized
60 39 TTABVUE 26-30.
61 32 TTABVUE 25-26.

Opposition No. 91286208
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descriptive or suggestive meaning, leading to the conclusion that that segment is
relatively weak.” Juice Generation, 794 F.3d at 1339 (citation omitted). “[E]xtensive
evidence of third-party use and registrations is ‘powerful on its face,’ even where the
specific extent and impact of the usage has not been established.” Jack Wolfskin
Ausrustung Fur Draussen GmbH v. New Millennium Sports, S.L.U., 797 F.3d 1363,
1373-74 (Fed Cir. 2015) (quoting Juice Generation, 794 F.3d at 1339). However, such
third-party registrations and uses must be “similar marks in use on similar goods
[or services].” Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315,
1324 (Fed. Cir. 2018) (citations omitted) (italics in original, bold here).
While Applicant offers evidence of several third-party registrations and uses,
Opposer correctly points out that none are for the identical mark TESSCO.62
Applicant did, however, submit 11 third-party registrations and nine third-party uses
which it asserts show “marks similar to TESSCO for . . . communication services and
products and related utilities services,”63 including a few for various forms of the
mark TESCO, varying from Opposer’s mark TESSCO only by a single letter. Three
of the registrations and uses overlap (i.e., Applicant submitted evidence of both a
registration and screenshots of use of the registered mark), such that overall
62 32 TTABVUE 25-26
63 39 TTABVUE 27-30; 27 TTABVUE 3-6, 9-98 (Exhibits A-E); 25 TTABVUE 3-63, 67-94
(Exhibits G-L, N-R). Applicant also submitted evidence of use and third-party registrations
for “household, kitchen, and bath products” (see 39 TTABVUE 26-27), but these registrations
and uses have very low probative value given that our likelihood of confusion analysis is
limited to Opposer’s registered goods and services, and does not consider the promotional
goods for which Opposer failed to establish priority. We find that these third-party
registrations and uses do not alter the conceptual or commercial strength of Opposer’s mark
TESSCO.

Opposition No. 91286208
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Applicant submitted evidence of 17 third-party marks. We find that nine of these
third-party marks have low probative value, however, because the marks are not as
similar to Opposer’s mark as is Applicant’s mark. See Specialty Brands, Inc. v. Coffee
Bean Distribs., 748 F.2d 669, 675 (Fed. Cir. 1984) (discounting probative value of
third-party marks where the “third-party registrations are of significantly greater
difference from [applicant’s mark] and [opposer’s mark] than either of these two
marks from each other”).64
Six of the remaining third-party marks consist of the mark TESCO (or a stylized
version thereof) or a TESCO formative mark, but they lack probative value because
they cover goods and services that are different from the communications and
telecommunications equipment and services identified in Opposer’s registrations,
including:
• Designing, manufacturing and integrating electrical and process control
systems for water, wastewater, transportation, lighting, and renewable
energy applications;65
• Metering equipment and services for electric, gas, and water utilities;66
• Consulting services in the field of engineering, offered to municipalities and
government agencies and others to aid them in needs assessment for the
contractual specification of electronic and electrical controls, controllers
and service pedestals;67
64 These marks are TELCOALERT, , TELCO SYSTEMS, TEOCO, TES
Communication Solutions, TESCON, TECO, and (two registrations). 27
TTABVUE 10-85 (Exhibits A-D); 25 TTABVUE 29-63 (Exhibits H-L).
65 27 TTABVUE 96.
66 25 TTABVUE 7-28.
67 25 TTABVUE 77.

Opposition No. 91286208
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• Artificial and resistance loads, watt-hour meter testing units, electrical
transformer testing units, electrical meters, phase analyzers, electrical
adapters, contactors, electrical power supplies, electronic voltmeters,
transformers, and transformer loss compensators;68
• Rental and leasing of top drive systems and drilling rigs; installation
services, namely, installing top drive systems on drilling rigs; maintenance
services, namely, maintaining top drive systems; oil and gas well drilling
services;69 and
• Electrical Motor Controls, pump controllers and programmable controllers,
Supervisory Control and Data Acquisition computer software, known as
SCADA, and programmable electrical controllers, all for use in water and
water treatment stations, as well as sewage and storm water lift stations.70
Applicant does not offer evidence that these goods and services in different fields are
related to the goods and services identified in Opposer’s registrations. See Tao
Licensing, LLC v. Bender Consulting Ltd., No. 92057132, 2017 TTAB LEXIS 437, at
*51 (TTAB 2017) (third-party registrations for marks in unrelated fields “have no
bearing on the strength of the term in the context relevant to this case”).
For the two remaining third-party uses, Applicant’s evidence does not provide
enough information for us to evaluate what goods and services are being offered and
any concomitant effect on the conceptual strength of Opposer’s mark. In the exhibit
Applicant submitted regarding TESCO DRIVER, it is not even clear that the term is
being used as a trademark. The exhibit references a “Tesco driver tag” that appears
in a message dialog, but it is not clear what type of product or service this message
68 25 TTABVUE 82.
69 25 TTABVUE 87.
70 25 TTABVUE 91.

Opposition No. 91286208
- 32 -
appears on.71 And in the exhibit Applicant submitted regarding TESCO Company
most of the text is illegible due to what appears to be a formatting problem when
Applicant captured the screenshot.72
Overall, we find that Applicant’s evidence of third-party marks does not weaken
the conceptual strength of Opposer’s mark TESSCO.
2. Commercial Strength of Opposer’s Mark
“Commercial strength or fame may be measured indirectly by the volume of sales
and advertising expenditures in connection with the goods or services sold under the
mark,” and may be “supported by other indicia such as length of time of use of the
mark; widespread critical assessments; notice by independent sources of the goods or
services identified by the marks; and the general reputation of the goods or services.”
New Era, 2020 TTAB LEXIS 199, at *31 (citations omitted). For likelihood of
confusion purposes, “fame ‘varies along a spectrum from very strong to very weak.”
Palm Bay Imps., 396 F.3d at 1375 (quoting In re Coors Brewing Co., 343 F.3d 1340,
1344 (Fed. Cir. 2003)). To show that its registered mark is strong, Opposer must
establish that “a significant portion of the relevant consuming public recognizes the
mark [TESSCO] as a source indicator.” Monster Energy, 2023 TTAB LEXIS 14, at *30
(citing Palm Bay Imps., 396 F.3d at 1375).
Opposer relies on the following evidence of commercial strength:73
71 25 TTABVUE 4-6. Additionally, the first page of the exhibit is blurry and most of the text
is illegible.
72 25 TTABVUE 68-75.
73 32 TTABVUE 26 (citing 14 TTABVUE 1-8).

Opposition No. 91286208
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• Opposer has been in business for more than 72 years under the TESSCO
name and mark;
• Sales of tens of thousands of different products under the TESSCO
trademark;
• Said sales have generated nearly $12 billion dollars in revenue; and
• Since 2002, Opposer has spent more than $107 million dollars in
marketing its products and services.
Starting with Opposer’s length of use, Opposer’s Chief Financial Officer testifies
that “[t]he trademark, TESSCO, has been continuously used since the inception of
Opposer’s business in 1952.”74 However, he also testifies that Opposer’s business has
changed over the years, explaining that Opposer originally was a “manufacturer’s
representative, representing companies selling equipment in the communications,
electronics, and electrical industries” and sold to “original equipment manufacturers,
dealers, self-maintained users, anyone using two-way radio equipment.”75 And then
“[i]n 1982, Opposer was refounded to become a primary merchant. As refounded,
Opposer would buy inventory and sell directly to its customers.”76 Accordingly, it is
not clear that Opposer has continuously been using the mark TESSCO in connection
with the goods and services at issue in this proceeding since 1952, and at a minimum
it appears that Opposer’s relevant customers changed when the company was
refounded. Whether we consider the 1952 date from the original iteration of Opposer,
or the 1982 date of the current company, the length of time of use is not insignificant.
74 14 TTABVUE 4 ¶ 7.
75 14 TTABVUE 3 ¶ 4.
76 14 TTABVUE 3 ¶ 5.

Opposition No. 91286208
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However, “[l]ong use is not sufficient by itself to prove fame or commercial strength.”
Keystone Consol., 2024 TTAB LEXIS 290, at *54; Genesco Inc. v. Martz, No. 91121296,
2003 TTAB LEXIS 123, at *35 (TTAB 2003) (“Even accepting that opposer’s mark . .
. has been used for over a century, mere length of time that a mark is in use does not
by itself establish consumer awareness of the mark, such that the mark can be found
to be famous.”).
In considering sales, Opposer’s Chief Financial Officer testifies that “Opposer has
sold tens of thousands of different products throughout its more than 70-year history
of use of its TESSCO mark.”77 But, the number of the types of products Opposer has
sold does not provide much, if any, context regarding whether the relevant consuming
public recognizes the mark TESSCO as a source indicator. Opposer’s Chief Financial
Officer also testifies, “[o]ver the last thirty years, Opposer has generated revenue in
the amount of nearly $12 billion dollars” and “[o]ver the last twenty years, Opposer
has averaged sales revenue in the amount of more than one half a billion dollars on
an annual basis.”78 However, unlike Opposer’s attorney’s characterization of its sales
in Opposer’s trial brief, the testimony does not state that such sales revenue has all
been for sales under the trademark TESSCO. And the testimony does not match up
the statements of sales to particular goods. And further, Opposer’s witness also
77 14 TTABVUE 7 ¶ 13.
78 14 TTABVUE 7-8 ¶ 13.

Opposition No. 91286208
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testifies that Opposer “has sold communications equipment under private brands,
including WIRELESS SOLUTIONS and VENTEV.”79
Even if we considered all of the sales revenue as generated under the mark
TESSCO, we agree with Applicant that “raw numbers alone in today’s world may be
misleading,” and “some context in which to place raw statistics is reasonable” such as
sales for comparable types of products or market share.80 Bose Corp. v. QSC Audio
Prods., 293 F.3d 1367, 1375 (Fed. Cir. 2002). However, Opposer does not provide any
such context for its sales figures. See Rocket Trademarks Pty Ltd. v. Phard S.p.A., No.
91172486, 2011 TTAB LEXIS 39, at *37-38 (TTAB 2011) (although sales figures
“appear impressive on their face, opposer has offered no context for these figures
[making] it . . . nearly impossible to gauge the level of success of goods bearing the
mark or the degree of exposure the general public has had to the mark”). As such, the
raw numbers alone provide little support for the commercial strength of Opposer’s
mark TESSCO.
With respect to advertising expenditures, Opposer’s Chief Financial Officer
testifies that “[m]arketing expenditures since fiscal year 2002 total more than
$107,000,000.”81 Opposer does not break down this figure “by product, or by mark”
and we therefore cannot attribute the marketing figure solely to Opposer’s mark
TESSCO. Keystone Consol., 2024 TTAB LEXIS 290, at *47. Additionally, the one
79 14 TTABVUE 5 ¶ 9. While Opposer’s witness states that “[t]hese private label brands also
display the mark, TESSCO, in connection with packaging and shipping,” this does not equate
to revenue generated by the mark TESSCO.
80 39 TTABVUE 22.
81 14 TTABVUE 8 ¶ 13.

Opposition No. 91286208
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overall figure Opposer provides covers over 20 years and breaks down to less than $5
million per year, which does not indicate any wide level of exposure or otherwise
support commercial strength. Further, Opposer’s lone figure lacks probative value
because it does not provide any context for its marketing expenditures such as the
type of advertising, where the advertising took place, the number of individuals
reached by the advertising, the scope (i.e., national vs. local), etc. See Made in Nature,
2022 TTAB LEXIS 251, at *38-39 (“Opposer did not provide evidence regarding the
extent or reach of these activities (e.g., the volume and geographical extent of the
readership of the print media in which Opposer’s advertisements and flyers have
appeared . . . and the length of time over which these advertisements have been
placed.”)).
Ultimately, Opposer’s evidence falls short of establishing that its mark TESSCO
should be placed at the upper end of the strength spectrum. As to Applicant’s
attempts to show that Opposer’s TESSCO mark should be considered commercially
weak, we are similarly unconvinced of the success of this effort. The probative value
of Applicant’s evidence of third-party use (summarized above) is diminished
considerably because five are not as similar to Opposer’s mark as is Applicant’s
mark,82 and for the remaining uses, two are for different services,83 and two of the
exhibits are illegible or lack sufficient information to analyze any effect of the use.84
82 These marks are TELCOALERT, TELCODEPOT, TELCO SYSTEMS, TEOCO, and TES
Communication Solutions. 27 TTABVUE 13, 31, 36, 62; 25 TTABVUE 34.
83 27 TTABVUE 96; 25 TTABVUE 7-28.
84 25 TTABVUE 4-6, 68-75.

Opposition No. 91286208
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On this record, neither party has succeeded in appreciably moving the needle on
commercial strength. We find that the mark TESSCO has average commercial
strength, and we place it in the middle of the “spectrum from very strong to very
weak.” Palm Bay Imps., 396 F.3d at 1375.
3. Conclusion on Strength and Fame
Considering the overall conceptual strength and commercial strength, we find
that Opposer’s mark TESSCO is entitled to a normal scope of protection. Bell’s
Brewery, Inc. v. Innovation Brewing, No. 91215896, 2017 TTAB LEXIS 452, at *20
(TTAB 2017) (considering “evidence pertaining to both conceptual and commercial
strength, we find that [o]pposer’s marks are inherently distinctive and accord them
the normal scope of protection to which inherently distinctive marks are entitled”).
Accordingly, the fifth DuPont factor is neutral. Applicant’s evidence of third party-
registrations and uses for less similar marks and/or non-similar goods does not affect
this finding, so the sixth DuPont factor is also neutral.
B. Similarity of the Marks
We now turn to the analysis of “[t]he similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connotation and commercial impression.”
Palm Bay Imps., 396 F.3d at 1371 (citing DuPont, 476 F.2d at 1361).
We agree with Opposer that its mark TESSCO is identical in appearance, sound,
and commercial impression to Applicant’s mark TESSCO, and as such this factor
“weighs heavily in favor of likelihood of confusion.”85 Tiger Lily, 35 F.4th at 1362.
85 32 TTABVUE 17.

Opposition No. 91286208
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Applicant asserts that “Opposer’s mark derives from its original company name,
Towson Engineering Sales and Service Company” 86 and that:
[P]ersons who encounter Opposer’s TESSCO marks either
already have a business or working relationship with
Opposer or will, in any event, recognize that the mark
emanates from, and refers to, a company that has
historically promoted its origins as Towson Engineering
Sales and Service Company, and continues to publicize its
history under that name on the company’s website.87
But, Applicant’s only evidence in support of this meaning is a single reference on
Opposer’s website under the category “History of Tessco”:88
We agree with Opposer that this lone reference to a historical derivation over 70 years
ago is insufficient to establish that present-day consumers would be aware of the
derivation or would associate Opposer’s mark with this historical meaning.89 See
Varian Assocs. v. Leybold-Heraeus GmbH, No. 91065383, 1983 TTAB LEXIS 62, at
*12-13 (TTAB 1983) (“Derivation is especially not relevant where there is little
86 39 TTABVUE 22-23.
87 39 TTABVUE 23-24.
88 26 TTABVUE 6-7.
89 42 TTABVUE 12-13.

Opposition No. 91286208
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likelihood that purchasers would be aware of the term or terms from which the mark
was derived.”); In re Max Cap. Grp. Ltd., No. 77186166, 2010 TTAB LEXIS 1, at *13-
14 (TTAB 2010) (the MAX “mark itself would be perceived as the word MAX, rather
than as an abbreviation for applicant’s company name, because it is not depicted with
periods or anything that would indicate that MAX stands for the initials of ‘Mutual’
and ‘Aid’ and an abbreviation for ‘Exchange’”).90 Further, we must consider the
parties’ marks as they appear in the drawings in the application and registrations,
and not as they appear in extrinsic or marketplace uses. See In re Aquitaine Wine
USA, LLC, No. 86928469, 2018 TTAB LEXIS 108, at *11 (TTAB 2018). Accordingly,
we find that this historical derivation does not detract from the identity of the marks.
C. Similarity or Dissimilarity of the Goods and Services
We next assess the “similarity or dissimilarity and nature of the goods or services.”
DuPont, 476 F.2d at 1361. We must base our analysis on “the applicant’s goods as set
forth in its application, and the opposer’s goods as set forth in its registration.” M2
Software, Inc. v. M2 Communc’ns, Inc., 450 F.3d 1378, 1382 (Fed. Cir. 2006). Under
this factor we “consider[ ] whether the consuming public may perceive the respective
goods and services of the parties as related enough to cause confusion about the
source or origin of the goods and services.” Naterra Int’l, Inc. v. Bensalem, 92 F.4th
1113, 1117 (Fed. Cir. 2024) (citation omitted).
90 Cf. Embarcadero Techs., Inc. v. RStudio, Inc., No. 91193335, 2013 TTAB LEXIS 6, at *36
(TTAB 2013) (evidence showed “consumers of opposer’s entity relationship modeling software
will understand the letters ‘ER’ as a recognized abbreviation for ‘entity relationship’” where
“record includes printouts from approximately fifty (50) different websites showing the
acronym ‘ER’ as an abbreviation or in a substantially synonymous manner as the term ‘entity
relationship’ in connection with databases”).

Opposition No. 91286208
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Opposer’s goods and services as identified in Opposer’s Registrations for the mark
TESSCO cover:
• distributorship services in the field of cellular telephone and land mobile radio
equipment;
• catalogs, newsletters and bulletins published periodically in the field of
communications; and
• various services in the field of communications and telecommunications
equipment and accessories.
Applicant’s goods as identified in its application are “combs; cutting boards; double
wall cups with lids and straws; make-up brushes; strainers for household purposes;
training cups for infants; wood chopping boards for kitchen use.”
Opposer argues that the parties’ goods and services are related based on evidence
of third-party registrations and use on third-party websites. “[U]se-based, third-party
registrations . . . have probative value to the extent that they serve to suggest that
the goods listed therein are of a kind which may emanate from a single source under
a single mark.” Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., No. 91197659, 2013
TTAB LEXIS 314, at *27-28 (TTAB 2013). “Evidence of relatedness may include . . .
copies of prior use-based registrations of the same mark for both [A]pplicant’s goods
and the goods listed in [Opposer’s] [R]egistration[s].” Embiid, 2021 TTAB LEXIS 168,
at *30 (citation omitted). Here, Opposer’s evidence that is properly of record contains
42 use-based third-party registrations.91 However, the registrations lack probative
value because none of them cover any of the goods and services listed in Opposer’s
91 18 TTABVUE 4-16, 33-171. Pursuant to the discussion supra Section I.B we granted
Applicant’s request to strike Opposer’s improper rebuttal evidence including additional third-
party registrations that should have been introduced during Opposer’s case in chief.

Opposition No. 91286208
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Registrations.92 Instead, the third-party registrations only cover promotional goods
for which Opposer failed to prove priority and accordingly are not relevant to the
analysis here.
Opposer also offers screenshots from 25 third-party websites which it asserts
“establish that the same entity offers and provides goods associated with both parties
under the same mark.”93 However to be probative in our analysis, such third-party
uses must show that the goods identified in Applicant’s application and the goods or
services identified in Opposer’s Registrations are offered under the same mark. See
In re Detroit Athletic Co., 903 F.3d 1297, 1307 (Fed. Cir. 2018) (“finding likelihood of
confusion where the record evidence showed that the goods come from the same
sources under one mark and that consumers are accustomed to seeing the applied-for
and registered goods originating from the same source”) (citation and quotation
omitted). Here again the third-party website evidence Opposer provided only includes
uses of marks for goods identified in Applicant’s application, and not for the goods or
services identified in Opposer’s Registrations. Similar to the third-party registration
evidence, the third-party website evidence only includes use of promotional goods
92 Additionally, ten of the third-party registrations further lack probative value because they
are cancelled. 18 TTABVUE 60, 67, 78, 108, 111, 122, 132, 145, 148, 151. See Anheuser-Busch,
LLC v. Innvopak Sys. Pty Ltd., No. 91194148, 2015 TTAB LEXIS 260, at *37 (TTAB 2015)
(“three of the third-party registrations . . . have been cancelled, and cannot be used for this
purpose [i.e., as evidence that the goods are related]”).
93 32 TTABVUE 21 (citing 18 TTABVUE 16-19, 172-209). Pursuant to the discussion supra
Section I.B we do not consider the additional third-party uses Applicant submitted with its
rebuttal notice of reliance which we determined were improper rebuttal evidence.

Opposition No. 91286208
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that Opposer asserts it offers (e.g., cup holders, mugs, bottle openers) which are not
relevant to the analysis because Opposer failed to prove priority for such goods.
Opposer also argues that “[w]here identical marks are involved, the degree of
similarity that is required to support a finding of likelihood of confusion declines and
all that is required is a ‘viable relationship’ between the goods.”94 However, putting
aside whether this “viable relationship” formulation is legally correct,95 Opposer’s
proffered evidence does not demonstrate any relationship between Applicant’s goods
and Opposer’s goods and services because none of the evidence relates to the goods
and services in Opposer’s Registrations. Nor is there any self-evident or intrinsic
relationship between the parties’ goods and services based on the identifications in
the application and registrations alone.
Opposer’s evidence on the relatedness of the goods and services, as discussed
above, has low probative value and does not provide any insight into whether the
parties’ goods and services are related. Accordingly, we find that Opposer’s evidence
does not establish a relationship between the goods and services to support a
likelihood of confusion. “There is no evidence of record showing that [A]pplicant’s
goods and [O]pposer’s [goods and] services are related in such a manner that they
could, because of the similarity of the marks, give rise to the mistaken belief that they
originate from the same source.” Vital Pharms., Inc. v. Kronholm, No. 91181806, 2011
TTAB LEXIS 207, at *14-15 (TTAB 2011) (dismissing opposition despite the fact that
94 32 TTABVUE 18.
95 See Tiger Lily, 35 F.4th at 1363 n.3 (questioning whether the “viable relationship” test of
relatedness is correct).

Opposition No. 91286208
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the parties’ marks were identical where “evidence of record does not make a prima
facie case for opposer”).
D. Trade Channels, Classes of Consumers, and Purchaser Care
We next examine the similarity or dissimilarity of the trade channels in which the
parties’ goods are sold, the consumers to whom the parties’ goods are marketed, and
the conditions under which sales are made, i.e., ‘impulse’ vs. careful, sophisticated
purchasing. DuPont, 476 F.2d at 1361; Coach Servs., 668 F.3d at 1370-71. We must
again base our analysis on the identifications in Opposer’s registration and
Applicant’s application. Stone Lion Cap. Partners, 746 F.3d at 1323; Detroit Athletic,
903 F.3d at 1308 (factor “must be evaluated with an eye toward the channels specified
in the application and registration”).
Here, Opposer errs in asserting that merely because the parties’ non-identical
identifications of goods and services in the pleaded registrations and opposed
application lack restrictions, “it is presumed that the respective goods and services
are offered in the same channels of trade and to the same classes of purchasers.”96
This presumption applies only where goods are literally or legally identical. See, e.g.,
Viterra, 671 F.3d at 1362 (where the goods at issue were identical, the Board was
“entitled to rely on th[e] legal presumption” that the trade channels and consumers
also were identical); Embarcadero Techs., 2013 TTAB LEXIS 6, at *52 (“because
opposer’s goods are not the same as applicant’s goods and services, as identified in its
amended descriptions, we cannot presume these trade channels and classes of
96 32 TTABVUE 23-24.

Opposition No. 91286208
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purchasers to necessarily be the same”). Where, as here, the goods are not identical,
we may presume only that they travel in whatever trade channels are normal for each
type of product or service. Coach Servs., 668 F.3d at 1370 (“goods are presumed to
travel in all normal channels and to all prospective purchasers for the relevant goods
[or services]”); Inter IKEA Sys., 2014 TTAB LEXIS 166, at *29-30 (when applications
and registrations are unrestricted, “we must assume that the goods or services in
question travel in all the normal channels of trade and to all prospective purchasers
for the relevant goods or services”) (italics in original, bold here). Thus, we look
to what the evidence shows about the relevant trade channels and classes of
customers.
Opposer states that its mark TESSCO “is used primarily as the source indicator
for communications and electrical products in the communications industry.”97
Opposer’s Mr. Young testified that Opposer is the “source of communications and
electrical products in the communications industry”98 and that it “sells equipment
necessary to build, run, maintain, and/or use a telecommunications system . . . [and]
the equipment necessary for interfacing with the electrical side of communications
equipment.”99 Mr. Young also stated that “Opposer’s markets and customers include,
but are not limited to, telecommunications carriers; wireless ISPs, and fixed
97 32 TTABVUE 6.
98 14 TTABVUE 4 ¶ 6.
99 14 TTABVUE 4-5 ¶ 9.

Opposition No. 91286208
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broadband operators; self -maintained users; infrastructure site owners; contractors
and integrators; value-added resellers; and federal, state, and local governments.”100
On the other hand, Applicant’s witness testified that its “TESSCO Products are
marketed and sold only by means of the Amazon.com e-commerce platform.”101 We
agree with Opposer that “a limitation [to sales via Amazon] cannot be read into
Applicant’s unrestricted identification of goods by resorting to extrinsic evidence.”102
However, there is no evidence of record showing that any normal trade channels for
the household products identified in Applicant’s application (e.g., combs, cutting
boards, cups) have any overlap or similarity to the trade channels for Opposer’s
communications and telecommunications equipment and services. Accordingly,
considering the evidence of record regarding the parties’ trade channels, we find that
the normal channels of trade for the parties’ products and services are dissimilar.
In considering the parties’ customers, Opposer’s witnesses testified that “Opposer
sells to anyone, including, but not limited to, retailers, resellers, dealers, and anyone
that uses, builds, or maintains communications equipment.”103 Applicant’s witness
testified that its “TESSCO Products are marketed to, sold to, and intended for use
by, ordinary consumers of household kitchen products and personal grooming and
beauty products.”104 While Opposer’s witnesses state that they sell to “anyone,” it is
100 14 TTABVUE 5 ¶ 10.
101 22 TTABVUE 6 ¶ 11. See also 18 TTABVUE 212-213 (Response to Int. No. 1).
102 32 TTABVUE 24.
103 14 TTABVUE 4 ¶ 9; 16 TTABVUE 3 ¶ 5.
104 22 TTABVUE 6 ¶ 11.

Opposition No. 91286208
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clear from the nature of their goods and services that “anyone” is limited to those that
“use, build, or maintain communications equipment.” This, of course, represents only
a tiny proportion of the general consuming public, which constitutes the relevant
consumers for Applicant’s everyday items. “And, there is nothing in the record to
suggest that a purchaser of [cutting boards] who also purchases [telecommunications
equipment or services] would consider the goods [or services] to emanate from the
same source.” See Coach Servs., 668 F.3d at 1371 (finding the same for test
preparation materials and luxury handbags).
We regard to the conditions under which sales are made, Opposer argues that
“little care or prior knowledge is part of the purchase of Applicant’s inexpensive
products originating from China” and that “[c]onsumers of low-cost products have
long been held to a lesser standard of purchasing care.”105 Putting aside that Opposer
cites no evidence in support of its argument, Opposer’s argument fails to account for
the dissimilarity between the consumers of the parties’ respective goods and services,
namely, that even if Applicant’s consumers exercise a low degree of purchasing care
in buying the goods identified in the application, the record does not show that
Applicant’s consumers are consumers of Opposer’s communications and
telecommunications equipment and services. See Elec. Design & Sales, Inc. v. Elec.
Data Sys. Corp., 954 F.2d 713, 719 (Fed. Cir. 1992) (“conclusion of likelihood of
confusion is unwarranted even as to [applicant’s retail] purchasers because there is
no evidence of overlap with purchasers of opposer’s services” and the record does not
105 32 TTABVUE 24-25 (citation and quotation omitted).

Opposition No. 91286208
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demonstrate “that users of opposer’s computer terminals who buy applicant’s goods
at retail influence actual or potential purchasers of opposer’s computer services”).106
As such, few of Applicant’s consumers would have been exposed to Opposer’s services,
so even if Applicant’s consumers were purchasing without care in distinguishing
between sources, there is no other similarly-named source of Applicant’s goods. This
diminishes the probative value of the lack of purchaser care as to Applicant’s goods.
Overall, the evidence of record establishes that the parties’ goods and services
travel in distinct trade channels to different customers. Accordingly, we find that this
factor weighs strongly against a likelihood of confusion. See M2 Software, 450 F.3d at
1384 (“The unrelated nature of the parties’ goods and their different purchasers and
channels of trade are factors that weigh heavily against M2 Software. It is difficult
to establish likelihood of confusion in the absence of overlap as to either factor.”). And
while purchasers of Applicant’s goods may exercise a low degree of care, the minimal
overlap with the different purchasers of Opposer’s goods and services (who also use a
relatively high degree of care) result in the conditions of sale being neutral.
106 Additionally, Opposer’s communications and telecommunications equipment and services
by their intrinsic nature are not impulse purchases, but would ordinarily be purchased with
a relatively high degree of care. See In re Gen. Elec. Co., 304 F.2d 688, 690 (CCPA 1962)
(electrical building wires are goods of “the type normally sold to and used by those who do
the electrical wiring of buildings, for the most part licensed electricians and electrical
contractors” and “such persons would buy their electrical supplies with a reasonable amount
of care and with considerable professional know-how as to what they are buying”); Elec.
Design, 954 F.2d at 718 (“Just from the record description of goods and services here one
would expect that nearly all of opposer’s [purchasers of computer programming services
including the design, implementation and management of telecommunications services]
would be highly sophisticated”). Such “[p]urchaser sophistication may tend to minimize
likelihood of confusion.” Palm Bay Imps., 396 F.3d at 1376.

Opposition No. 91286208
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E. Absence of Actual Confusion
Under the eighth DuPont factor, we consider the “length of time during and
conditions under which there has been concurrent use without evidence of actual
confusion.” DuPont, 476 F.2d at 1361.107
Opposer admits that “[t]here is no evidence of actual confusion,” but asserts that:
[T]he lack of actual confusion is not probative where the
length of time of alleged use is short, and the conditions of
use are such that the presence of concurrent use is lacking.
Applicant sells through Amazon only, with little sales at
that. Opposer does not utilize Amazon as a trade channel
for the sale and distribution of its products. Moreover,
Opposer is not required to show evidence of actual
confusion.108
We agree that the evidence of record establishes that Applicant’s goods and Opposer’s
goods and services travel in distinct trade channels to different consumers such that
there hasn’t “been a reasonable opportunity for confusion to have occurred.”
Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS 464, at *62-63
(TTAB 2021) (noting “the different channels of trade actually used by the parties” in
finding the eighth DuPont factor neutral); Made in Nature, 2022 TTAB LEXIS 251,
at *71 (absence of confusion not meaningful where record shows the parties were not
competitors and “do not trade in the same ‘space’”).
Accordingly, we find that the eighth DuPont factor is neutral.
107 Opposer also argues that the seventh DuPont factor, the nature and extent of any actual
confusion, is at best neutral and does not favor either party. 32 TTABVUE 27. However, the
seventh DuPont factor is generally used offensively by a plaintiff to demonstrate confusion is
likely. Given that Opposer states it has no evidence of actual confusion, we find this factor
does not affect our analysis.
108 32 TTABVUE 26-27.

Opposition No. 91286208
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F. Extent of Potential Confusion
We consider “[t]he extent of potential confusion, i.e., whether de minimis or
substantial,” under the twelfth DuPont factor. DuPont, 476 F.2d at 1361. Opposer
submits a single-sentence argument on this factor asserting that the extent of
potential confusion is substantial “given that the marks are identical, that some goods
are related, that there is an absence of restrictions in trade channels for the respective
marks, and that recent activity by Applicant suggests a rapid expansion into new
products offered under a ‘Tessco Store’ and new marks with TESSCO the featured
term.”109 However, the evidence of record demonstrates that the parties’ goods and
services, trade channels, and consumers are all dissimilar, and we determined that
Opposer’s proffered evidence regarding a Tessco store was irrelevant given that it
concerned marks and goods and services not at issue in this proceeding. Additionally,
as Opposer argued above with regard to the lack of actual confusion, Applicant’s sales
have been minimal. Accordingly, we conclude that the extent of potential confusion
is de minimis, and this factor weighs against a likelihood of confusion. See Mini Melts,
Inc. v. Reckitt Benckiser LLC, No. 91173963, 2016 TTAB LEXIS 151, at *47-48 (TTAB
2016) (“Notwithstanding the virtual identity between the marks, the obvious and
significant differences between ice cream and pharmaceutical preparations persuade
us that confusion is unlikely to occur among consumers in the marketplace.”)
109 32 TTABVUE 27.

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VI. Conclusion
After reviewing the evidence of record, and the parties’ arguments relating
thereto, we find that confusion is not likely. Even though the marks are identical,
which weighs heavily in favor of a conclusion of likely confusion, the identity of the
marks is not dispositive given our findings on the other DuPont factors. See Shen
Mfg. Co., Inc. v. Ritz Hotel, Ltd., 393 F.3d 1238, 1245 (Fed. Cir. 2004) (“Although the
marks are identical, the differences in the products as well as the weakness of
[opposer’s] mark lead us to dismiss [the] [o]pposition.”); Calypso Tech., Inc. v. Calypso
Capital Mgmt., LP, No. 91184576, 2011 TTAB LEXIS 259, at *34 (TTAB 2011)
(“Essentially plaintiff would have us find confusion simply because of the similarity
of the marks. But this is not a sufficient basis for doing so.”); In re OSF Healthcare
Sys., No. 88706809, 2023 TTAB LEXIS 353, at *42-43 (TTAB 2023) (where evidence
of record was insufficient to show that applicant’s Class 44 and Class 45 services were
related to the registrant’s services “we conclude that confusion is unlikely as to the
services in those classes notwithstanding the identity of the marks”).
Specifically, Opposer failed to establish that the parties’ identified goods and
services, trade channels or customers are similar, all of which weighs strongly against
a likelihood of confusion. Moreover, these findings demonstrate that the extent of
potential confusion is de minimis. The remaining factors discussed by the parties are
neutral.
We find that Opposer has failed to prove by a preponderance of the evidence that
Applicant’s use of its mark in connection with various household products (e.g.,

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combs, cutting boards, double wall cups with lids and straws, make-up brushes) is
likely to cause confusion as the source or sponsorship of Applicant’s goods.
Decision: The opposition is dismissed.