Sumitomo Rubber Industries, Ltd.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: February 6, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Sumitomo Rubber Industries, Ltd.
_____
Serial No. 97684418
_____
Michael J. Kline, of Roger Cleveland Golf Company, Inc.,1
for Sumitomo Rubber Industries, Ltd.
Mackenzie Olson, Trademark Examining Attorney, Law Office 112,
Matthew Cuccias, Managing Attorney.
_____
Before Thurmon, Elgin, and Casagrande, Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
Applicant Sumitomo Rubber Industries, Ltd. seeks registration on the Principal
Register of the mark HB SOFT, in standard characters, for “Golf club heads; Golf
clubs; Golf putters” in International Class 28.2
1 Mr. Kline is listed as the attorney of record for Applicant. Roger Cleveland Golf Co., Inc. is
a wholly-owned subsidiary of Applicant. See Declaration of Scott Carlyle ¶ 2 (“Carlyle Decl.”),
Dec. 5, 2024 Request for Reconsideration, at TSDR 24. Citations to the prosecution record
refer to the Trademark Status and Document Retrieval (TSDR) system in downloadable .pdf
format. References to the briefs on appeal refer to the Board’s TTABVUE docket system. In re
Integra Biosciences Corp., No. 87484450, 2022 TTAB LEXIS 17, at *6.
2 Ser. No. 97684418 was filed on Nov. 18, 2022 under Trademark Act Section 1(a), 15 U.S.C.
§ 1051(a), alleging Nov. 7, 2022 as the date of first use anywhere and Nov. 18, 2022 as the
date of first use in commerce.

Serial No. 97684418
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The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used in
connection with the identified goods, so resembles the registered composite mark
for, inter alia, “golf balls” in International Class 283 that it is likely to
cause confusion, to cause mistake, or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney issued a Subsequent Final Office
Action, the appeal resumed and is now fully briefed.
For the reasons set forth below, we affirm the refusal to register.
I. Request for Remand and Judicial Notice
We first consider the issue of new evidence submitted with Applicant’s main brief.
In particular, the Examining Attorney objects to the evidence as follows:
[C]ontent associated with, and contained within,
applicant’s footnotes 6, 7, 8, 9, 10, 13, in their entireties,
footnote 15 (first sentence), and footnote 17 after “See also”
refer to links of webpages that have not been provided
before, or properly made of record. Footnote 19 refers to a
link that has been provided before with a very small
clipping from a webpage, but not the article in its entirety.
Footnote 14 refers to prior registrations that have not been
properly made of record….[F]ootnote 11 refers to a
translation of one word separated into three parts via
3 Reg. No. 3211587 issued on the Principal Register on Feb. 20, 2007 based on a request for
extension of protection under Trademark Act Section 66(a), 15 U.S.C. § 1141f(a), of Int’l Reg.
No. 0869805. A Declaration of Use under Trademark Act Section 71, 15 U.S.C. § 1141k, has
been accepted. The registration includes other goods and services that are not relevant to our
analysis.

Serial No. 97684418
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Google Translate, which has not previously been provided,
and is not from an acceptable dictionary source.4
Additionally, the Examining Attorney “opposes applicant’s request that the Board,
based on ‘public information’, take judicial notice of the nature and industry of [the
owner of the cited registration].”5 In particular, Applicant asserts “[t]he owner of the
[cited registration], as public information shows, and which the TTAB can take notice
of, is a brewery and beer hall establishment in Munich, Germany.”6
In response, Applicant requests that the Board take judicial notice of the new
evidence, including certain dictionary definitions.7 In the alternative, Applicant
requests “pursuant to [TRADEMARK MANUAL OF EXAMINING PROCEDURE] TMEP
§ 710.01(c), the Board suspend the appeal and remand the case so that such evidence
[raised in Applicant’s Appeal Brief] may be made of record.”8
The record in an appeal should be complete prior to the filing of the appeal and
evidence should not be filed with the Board after the filing of a notice of appeal.
Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d); see also TRADEMARK TRIAL AND
APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1207.01 (June 2025). Accordingly,
new evidence embedded in Applicant’s Appeal Brief, which was submitted after filing
of the appeal, is untimely.
4 9 TTABVUE 3. Applicant requests that we take judicial notice of a Google translation of the
German components of the registrant’s name (Hofbräuhaus). See 4 TTABVUE 16;
10 TTABVUE 2.
5 9 TTABVUE 3.
6 4 TTABVUE 12.
7 10 TTABVUE 2.
8 Id.

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Under Trademark Rule 2.142(d)(1), an applicant may request remand of an appeal
for consideration of additional evidence. A request for remand must include a showing
of good cause. See In re Seminole Tribe of Fla., No. 87890892, 2023 TTAB LEXIS 184,
at *3 n.5; In re NextGen Mgmt., LLC, No. 88098031, 2023 TTAB LEXIS 1, at *5. The
request for remand in Applicant’s reply brief includes no mention of good cause and
no explanation for why Applicant did not file the evidence earlier. See NextGen
Mgmt., 2023 TTAB LEXIS 1, at *5-6 (“Applicant suggests that it ‘makes sense’ to
remand the case …. Even if we construed Applicant’s statements as requesting
suspension and remand under Trademark Rule 2.142(d)(1), … the request would be
denied. Applicant has not shown good cause for the request.”); In re Luxuria, s.r.o.,
No. 79055664, 2011 TTAB LEXIS 279, at *3 (“[I]n determining whether good cause
has been shown, the Board will consider both the reason given and the point in the
appeal at which the request for remand is made”). Because Applicant has not
demonstrated good cause for remand, Applicant’s request is denied and the new
evidence and the arguments pertaining thereto have not been considered.
However, we have considered the evidence from Golf Digest referred to in note 19
of Applicant’s brief.9 To make Internet material properly of record, the offering party
must provide the full address (URL) for the web page, and the date it was accessed
or printed, either by the information displayed on the web page itself, or by providing
9 9 TTABVUE 3 (referring to webpages at www.golfdigest.com/hot-list/putters/blade-putters/
cleveland-hb-soft-milled and www.golfdigest.com/hot-list/putters/blade-putters/cleveland-hb
-soft-2, accessed Dec. 4, 2024). This evidence is an embedded screenshot appearing in
Applicant’s Dec. 5, 2024 Request for Reconsideration, at TSDR 16.

Serial No. 97684418
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this information in an Office Action or the applicant’s response. See Safer, Inc. v. OMS
Invs. Inc., No. 91176445, 2010 TTAB LEXIS 51, at *22-23; In re I-Coat Co., No.
86802467, 2018 TTAB LEXIS 171, at *6 (applying Safer to evidence submitted by
examining attorneys and applicants in ex parte cases). Although it is a better
practice, there is no requirement that the offering party submit the entire page. The
URL and date of the screenshots were offered by Applicant in the Office Action
Responses along with the embedded images. Therefore, we have considered the
embedded screenshot (as we have with Applicant’s other embedded screenshots) for
whatever probative value it has.
We decline to take judicial notice of the nature or location of the owner of the cited
registration as this is not a fact that is generally known. Cf. FED. R. EVID.
201(b)(1) (judicial notice of facts “generally known”). As to the Google translation, the
Board may take judicial notice of dictionary entries, including online dictionaries that
exist in printed format or have regular fixed editions. In re Cordua Rests. LP, No.
85214191, 2014 TTAB LEXIS 94, at *6 n.4, aff’d, 823 F.3d 594 (Fed. Cir. 2016); see
also B.V.D. Licensing Corp. v. Body Action Design Inc., 846 F.2d 727, 728 (Fed. Cir.
1988) (“dictionaries and encyclopedias may be consulted”). There is no indication that
the Google Translate website falls into any of these acceptable categories or otherwise
constitutes an authoritative source of information. Accordingly, we have not
considered this translation or the argument pertaining thereto in our decision.
However, in our discretion, we have taken judicial notice of the following
dictionary definition: “hofbrau,” meaning “an informal, German-style restaurant or

Serial No. 97684418
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tavern,” “[by shortening of Hofbrauhaus (‹ G: lit., court brewery), a typical name for
such restaurants].”10
II. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d); see also In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023).
Our determination under Section 2(d) is based on an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E. I. DuPont de Nemours
& Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”); see also In re Majestic Distilling
Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). When analyzing the likelihood of confusion
factors, the overriding concerns are not only to prevent buyer confusion as to the
source of the goods or services, but also to protect registrants from adverse
commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil
Co., 992 F.2d 1204, 1207-08 (Fed. Cir. 1993).
In any likelihood of confusion analysis, different DuPont factors may play a
dominant role and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1116 (Fed. Cir. 2024) (citing Tiger Lily Ventures Ltd. v. Barclays Cap.
Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be
assigned to each factor depending on the evidence presented, and “any one of the
10 COLLINS DICTIONARY (www.collinsdictionary.com/us/dictionary/english/hofbrau, accessed
Feb. 6, 2026).

Serial No. 97684418
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factors may control a particular case.” Id.; see also Charger Ventures, 64 F.4th at 1381.
Although we consider each DuPont factor for which there is evidence and argument,
In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019), two key considerations
are the similarities between the marks and the similarities between the goods. In re
i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (citing Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)). These factors, and
others, are discussed below.
A. The Marks
The first DuPont factor involves an analysis of the similarity or dissimilarity of
the marks in their entireties as to appearance, sound, connotation, and commercial
impression. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005); see also Stone Lion Cap. Partners, L.P. v.
Lion Cap. LLP, 746 F.3d 1317, 1319 (Fed. Cir. 2014). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Inn at St.
John’s, LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13 (quoting In re Davia, No.
85497617, 2014 TTAB LEXIS 214, at *4), aff’d mem., 777 F. App’x 516 (Fed. Cir.
2019); accord Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 732 (CCPA 1968) (“It is
sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”) (citation omitted).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d
1340, 1344 (Fed. Cir. 2003)). The proper test regarding similarity “is not a side-by-

Serial No. 97684418
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side comparison of the marks, but instead whether the marks are sufficiently similar
in terms of their commercial impression such that persons who encounter the marks
would be likely to assume a connection between the parties.” Cai v. Diamond Hong,
Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018) (quoting Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012)). “The focus is on the recollection
of the average purchaser, who normally retains a general rather than a specific
impression of trademarks.” In re St. Julian Wine Co., No. 87834973, 2020 TTAB
LEXIS 196, at *13.
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, our finding must be based on the entire marks, not just part of
the marks. See, e.g., In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985); see
also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981) (“It is
axiomatic that a mark should not be dissected and considered piecemeal; rather, it
must be considered as a whole in determining likelihood of confusion.”). “No element
of a mark is ignored simply because it is less dominant, or would not have trademark
significance if used alone.” In re Electrolyte Labs. Inc., 929 F.2d 645, 647 (Fed. Cir.
1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293 (CCPA
1974)). Nonetheless, “in articulating reasons for reaching a conclusion on the issue of
confusion, there is nothing improper in stating that, for rational reasons, more or less
weight has been given to a particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their entireties.” In re Detroit

Serial No. 97684418
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Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018) (quoting Nat’l Data Corp., 753 F.2d
at 1058).
As a reminder, Applicant’s mark is HB SOFT in standard characters, and the cited
mark is . The marks share the literal term HB, which is the first term in
Applicant’s mark – often the most prominent part of a mark. See Palm Bay, 396 F.3d
at 1372 (VEUVE is the most prominent part of the mark VEUVE CLICQUOT because
it the first word in the mark); Century 21 Real Estate Corp. v. Century Life of Am.,
970 F.2d 874, 876 (Fed. Cir. 1992) (upon encountering the marks, consumers will first
notice the identical lead word); Presto Prods. Inc. v. Nice-Pak Prods., Inc., No.
91074797, 1988 TTAB LEXIS 60, at *8 (“it is often the first part of a mark which is
most likely to be impressed upon the mind of a purchaser and remembered”).
As to the term SOFT in Applicant’s mark, Applicant submits that consumers will
view SOFT as an acronym for “Speed Optimized Face Technology.”11 “[W]e must look
to the likely consumer perception of the mark in connection with the identified goods,
rather than applicant’s intended connotation.” UMG Recordings, Inc. v. Mattel, Inc.,
No. 91176791, 2011 TTAB LEXIS 286, at *55. Notwithstanding Applicant’s intention
to impart the above-described connotations of SOFT, the record is devoid of evidence
showing that the relevant public perceives the marks in that way. Nothing on the
11 4 TTABVUE 11-12.

Serial No. 97684418
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face of the goods (as shown in the specimen) imparts this connotation to the
consumer:12
Although we need not rely on extrinsic evidence, the advertising for Applicant’s
goods in the record corroborates the term SOFT imparts a different connotation and
commercial impression that is conveyed to consumers. N. Face Apparel Corp. v.
Sanyang Indus. Co., No. 91187593, 2015 TTAB LEXIS 328, at *27 (considering
opposer’s advertising in connection with connotation and commercial impression of
the marks); Nw. Golf Co. v. Acushnet Co., No. 91066474, 1985 TTAB LEXIS 86, at
*15 (“Evidence of the context in which a particular mark is used on labels, packaging,
etc., or in advertising is probative of the significance which the mark is likely to
project to purchasers.”); cf. Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748
F.2d 669, 674 (Fed. Cir. 1984) (trade dress may provide evidence of whether word
mark projects a confusingly similar commercial impression);
12 Nov. 18, 2022 application, specimen of use.

Serial No. 97684418
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The evidence of the intended connotation of the term SOFT is only found in non-
point of sale materials, such as Applicant’s website.13 Applicant also concedes that
“[t]he term “soft” when used in the context of golf putters and golf balls, is suggestive
of a golf club that results in a softer feeling stroke.”14 Applicant made of record
evidence indicating that its putters are referred to by third parties as “HB Soft Milled
blade putter[s]”:15
In a press release, Applicant refers to its putters as manufactured from “soft 304
Stainless Steel,” featuring a “coarse, diamond-shaped milling pattern to soften the
feel at impact….”16 It is reasonable to believe that many consumers would view SOFT
in Applicant’s mark as describing a quality of Applicant’s goods and give the term
less weight than the term HB. Cf. Cunningham v. Laser Golf Corp., 222 F.3d 943, 947
(Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the
13 See July 26, 2024 Response to Office Action, at TSDR 6-7.
14 4 TTABVUE 17.
15 Dec. 5, 2024 Request for Reconsideration, at TSDR 16.
16 July 26, 2024 Office Action Response, at TSDR 9. See also id. at TSDR 10 (dictionary
definition of “soft” as “easy to mold, cut, compress, or fold; not hard or firm to the touch.”).

Serial No. 97684418
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descriptive component of a mark may be given little weight in reaching a conclusion
on likelihood of confusion.”) (quoting Nat’l Data Corp., 753 F.2d at 1060).17
Applicant points out that the cited mark has design elements which are sufficient
to distinguish the marks. Applicant stresses that “the ‘HB’ portion of the [cited] Mark
comprises less than 25% of the area of the mark as a whole, which includes a large
black oval shield, with an interior white oval that surrounds both the ‘crown’ and ‘HB’
elements.”18
We agree with the Examining Attorney that the crown design and background
circular carrier are subordinate to the literal term HB in Registrant’s mark and do
not obviate the similarity of the marks. The circle and oval encircling the letters “HB”
and the crown design in the cited mark are merely background or carrier devices and
therefore are entitled to less weight than the other parts of the mark. See In re Hughes
Furniture Indus., Inc., No. 85627379, 2015 TTAB LEXIS 65, at *18 (design feature of
mark that merely serves as carrier does not distinguish applicant’s mark from cited
mark). The crown design is a point of distinction, but on its face does not lend any
particular meaning to the literal portion of the mark or the goods (or services) covered
by the registration that would differentiate its meaning from Applicant’s use of the
same letters. Consumers are likely to view the crown design merely as an
embellishment and not, as Applicant argues, correlating to “the royal heritage of the
17 Applicant successfully traversed a requirement made by the Examining Attorney to
disclaim SOFT in the mark. See Sept. 30, 2024 Final Office Action, at TSDR 3 (withdrawing
disclaimer requirement). The descriptiveness of SOFT is not at issue in this appeal, but we
may find the term weaker, and thus subordinate, to the term HB.
18 4 TTABVUE 9.

Serial No. 97684418
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Hofbräuhaus.”19 Even assuming that Applicant is correct that, as a mathematical
exercise of measuring area, HB takes up a quarter of the entirety of the mark, we
conclude that it is the central and dominant visual factor.
Nor is the stylization of the literal term HB in the cited mark a distinguishing
element. Applicant’s mark is depicted in standard characters. A standard character
mark “might be used in any stylized display or color scheme, including one that is
similar or identical to any lettering style” in the compared mark. Weider Publ’ns, LLC
v. D&D Beauty Care Co., No. 91199352, 2014 TTAB LEXIS 2, at *26 (citations
omitted). Thus, were Applicant’s mark to register, the registration would provide
Applicant rights covering use in a font and style similar that in the cited mark and
de-emphasizing SOFT, such as , further increasing the similarity of the
marks’ appearances. Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a) (standard character
mark is made “without claim to any particular font style, size, or color”).
Also, in the case of marks that consist of words and a design, the words are
normally accorded greater weight because they would be used by purchasers to
request the goods and services. See Viterra, 671 F.3d at 1362 (“In the case of a
composite mark containing both words and a design, ‘the verbal portion of the mark
is the one most likely to indicate the origin of the goods to which it is
affixed.’”) (quoting CBS, Inc. v. Morrow, 708 F.2d 1579, 1581-82 (Fed. Cir. 1983)); In
re Dakin’s Miniatures, Inc., No. 74706577, 1999 TTAB LEXIS 636, at *8 (“words are
19 Id. at 17.

Serial No. 97684418
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normally accorded greater weight because they would be used by purchasers to
request the goods”) (citation omitted). Thus, the sound of the marks — HB and HB
SOFT — are quite similar, and HB is the dominant aural factor in both. We are not
convinced by Applicant’s argument that consumers would not request the goods by
the mark, as they might with a New York Yankees cap; this is based on speculation,
not evidence.20 Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018)
(attorney argument is not evidence).
As to connotation, Applicant submits that consumers will view HB in its mark as
an acronym for Huntington Beach, California (where Applicant’s subsidiary designs,
assembles, warehouses, and ships its golf putters).21 In contrast, Applicant argues,
HB in the cited mark will be perceived by consumers as standing for “hofbräuhaus”
(a generic name for a German restaurant)22 or Registrant’s name Staatliches
Hofbräuhaus in München particularly due to the addition of the “equally prominent”
royal crown design in the cited mark.23
Notwithstanding Applicant’s or Registrant’s putative intention to impart the
above-described connotations of HB, the record is devoid of evidence showing that the
20 See 4 TTABVUE 8.
21 Id. at 10-11 (discussing Carlyle Decl. ¶ 4). We note that Applicant’s evidence shows that
the city of Huntington Beach depicts the HB acronym with the letters H and B overlapping.
See Dec. 5, 2024 Request for Reconsideration, at TSDR 14. Thus, to the extent consumers
know of the use of the stylized form of HB for Huntington Beach and make that connection
with Applicant’s mark—and we make no finding on this point—that may well increase the
likelihood of confusion with the cited registered mark, which uses a highly similar stylized
format.
22 As noted above, “hofbräuhaus” is a generic name for “an informal, German-style restaurant
or tavern.” See text accompanying note 10, supra.
23 4 TTABVUE 12, 17.

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relevant consuming public – golfers – perceives the marks the ways suggested. See
UMG Recordings, 2011 TTAB LEXIS 286, at *55 (must look at consumer perception
of the mark). In particular, there is no evidence to suggest that the U.S. consumers
of golf equipment know of Registrant or its businesses, let alone that such consumers
would associate the HB in the cited mark as an acronym for “hofbräuhaus” or
Registrant. Applicant made of record a Wikipedia page for Registrant,24 but this does
not demonstrate that U.S. consumers of golf equipment know this information,
including the intended meaning of the crown. There also is no evidence that relevant
consumers would make a connection between the HB element in the applied-for mark
and Applicant’s subsidiary’s location in Huntington Beach, California.
Having considered the marks at issue in their entireties, and keeping in mind that
the marks “must be considered…in light of the fallibility of memory,” St. Helena
Hosp., 774 F.3d at 751 (citation omitted), we find that Applicant’s mark and the cited
mark are similar in sight, sound, connotation, and commercial impression.
Accordingly, the first DuPont factor weighs in favor of likelihood of confusion.
B. The Goods
The second DuPont factor “considers the similarity or dissimilarity and nature of
the goods as described in the involved application and cited registration … and
“contemplates whether the consuming public may perceive the respective goods as
related enough to cause confusion about their source or origin.” In re Samsung
24 Dec. 5, 2024 Request for Reconsideration, at TSDR 11. On its face, the entry states: “This
article is about the brewery in Munich. For other Hofbräu breweries, see Hofbräu.” Id. This
statement implies that there are other “hofbräus” in existence.

Serial No. 97684418
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Display Co., No. 90502617, 2024 TTAB LEXIS 258, at *6 (cleaned up; citing DuPont,
476 F.2d at 1361, and Naterra, 92 F.4th at 1117). Under the second factor, “[t]he
goods need not be identical or even competitive to find a likelihood of confusion.” Id.
(citing On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086 (Fed. Cir. 2000);
Recot, Inc. v. Becton, 214 F.3d 1322, 1329 (Fed. Cir. 2000)). “They need only be ‘related
in some manner and/or if the circumstances surrounding their marketing are such
that they could give rise to the mistaken belief that [the goods] emanate from the
same source.’” Id. (quoting Coach Servs., 668 F.3d at 1369). This factor favors
likelihood of confusion if relatedness is established for any item encompassed by the
identification of goods or services within a particular class in the application. Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981); Inter IKEA
Sys. B.V. v. Akea, LLC, No. 91196527, 2014 TTAB LEXIS 166, at *37.
“We begin with the identifications of … [goods] in the registration and application
under consideration.” In re OSF Healthcare Sys., No. 88706809, 2023 TTAB LEXIS
353, at *10 (cleaned up; citation omitted). As a reminder, the goods in the cited
registration include “golf balls.” Applicant’s identified goods are “Golf club heads; Golf
clubs; Golf putters.” The Examining Attorney argues that golf clubs and putters are
closely related to golf balls based on evidence of third-party use for these goods under
the same mark (such as TaylorMade, Wilson, Titleist, Callaway, Reach Beyond,
Mizuno, PXG, Bridgestone, Vice, and Ping).25 In addition, the Examining Attorney
25 See Sept. 8, 2023 Non-Final Office Action, at TSDR 10-27; Sept. 30, 2024 Final Office
Action, at TSDR 9-46.

Serial No. 97684418
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made of record evidence of thirty-eight active, use-based thirty-party registrations for
the same mark for both golf clubs and golf balls.26
Golf clubs and golf balls are intrinsically related: one is useless without the other.
See Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 1376 (Fed. Cir. 2002) (“On
the face of the registrations themselves, QSC’s [amplifiers and power amplifiers] and
the ACOUSTIC WAVE [loudspeaker systems and music systems consisting of a
loudspeaker system and amplifier and at least one of a radio tuner, compact disc
player and audio tape cassette player and loudspeaker systems] are related.”). They
necessarily are “used in combination,” and therefore are a classic example of
complementary goods; “complementary use has long been recognized as a relevant
consideration in determining a likelihood of confusion.” In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 1567 (Fed. Cir. 1984) (taking notice that bread and
cheese are often are used in combination). We also agree with the Examining
Attorney that the third-party evidence of record discussed above shows that golf balls
and golf clubs are related because consumers encounter entities offering them under
the same mark in the marketplace. In re Embiid, No. 88202890, 2021 TTAB LEXIS
168, at *39 (“This is evidence that consumers are accustomed to seeing shoes and
clothes sold under the same mark, which in turn increases the likelihood of
confusion”).
26 See Sept. 30, 2024 Final Office Action, at TSDR 73-150.

Serial No. 97684418
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Applicant seems to concede the relatedness of the goods by stating it is “obvious”
that “golf clubs and golf balls are related goods.”27 But Applicant also argues that we
should not give this factor significant weight because there is no evidence of record
that Registrant manufactures its own golf balls; instead, the goods are sold as single
“novelty” items which “could, of course, be used for golf, but in all likelihood, are for
display or collection by Hofbräuhaus ‘fans.’”28 Thus, contends Applicant, the
Registrant’s goods are in a different category from the golf balls sold in
“manufacturer-branded packaging” in the evidence relied upon by the Examiner.29
We are not persuaded by Applicant’s arguments based on extrinsic evidence of
actual use. The cited mark is registered on the Principal Register. Consequently, we
must accord the mark the full scope of protection afforded by Trademark Act Section
7(b), 15 U.S.C. § 1057(b), which bestows upon Registrant a prima facie presumption
of use of the registered mark upon all of the goods encompassed by the description of
goods. Neither the application nor the cited registration are limited in scope as to
manner of sale. Applicant may not restrict the scope of the goods covered by the
application or cited registration by argument or extrinsic evidence. Stone Lion, 746
F.3d at 1323 (“It was proper, however, for the Board to focus on the application and
registrations rather than on real-world conditions....”) (citing Octocom Sys., Inc. v.
Houston Comp. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990)).
27 4 TTABVUE 18.
28 Id. at 19.
29 Id.

Serial No. 97684418
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We conclude that the second DuPont factor favors a finding of likelihood of
confusion.
C. Trade Channels, Classes of Consumers, and Purchasing Decisions
The third DuPont factor considers the “similarity or dissimilarity of established,
likely-to-continue trade channels,” and the fourth factor concerns the “conditions
under which and buyers to whom sales are made, i.e. ‘impulse’ v. careful,
sophisticated purchasing.” Samsung, 2024 TTAB LEXIS 258, at *17 (quoting DuPont,
476 F.2d at 1361).
Because the relevant goods in the cited registration are unrestricted as to trade
channels and classes of purchasers, we must presume that they travel in the ordinary
trade and distribution channels for the goods and to all usual classes of consumers.
Id. at *19-20; see also Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1361
(Fed. Cir. 2000) (“When the registration does not contain limitations describing a
particular channel of trade or class of customer, the goods or services are assumed to
travel in all normal channels of trade.”).
Because the goods are complementary, we can presume that they travel or are
marketed to the same classes of consumers through the same channels of trade –
namely, golfers and retailers that sell golf equipment. See Martin’s Famous Pastry
Shoppe, 748 F.2d at 1567. Moreover, the Examining Attorney made of record evidence
showing that golf clubs and golf balls are sold by the same retailers, including Rock
Bottom Golf, Golf Galaxy, TGW, GolfDiscount.com, and Golf Direct Now.30
30 Sept. 30, 2024 Final Office Action, at TSDR 47-72.

Serial No. 97684418
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Applicant’s witness confirms that golf clubs under Applicant’s RB SOFT mark are
offered in these same channels of trade and customer classes.31
Applicant argues, however, that the actual channels of trade for Registrant’s golf
balls are not likely to be “sporting goods retailers or golf course shops,” but rather via
Registrant’s online shop.32 Applicant also argues that purchasers of registrant’s golf
balls are likely to be “fans” of Registrant’s brewery who are not looking to purchase
golf balls to actually play golf.33 We cannot, however, read such limitations into the
unrestricted identification of the registration by resorting to extrinsic evidence; we
must rely on the identification alone. Samsung, 2024 TTAB LEXIS 258, at *20 (citing
Detroit Athletic, 903 F.3d at 1308-09).
We find that relevant goods are very closely related and that the channels of trade
and classes of customer overlap, and therefore these DuPont factors weigh in favor of
likelihood of confusion.
We turn next to the conditions under which the goods are likely to be purchased,
e.g., whether on impulse or after careful consideration, as well as the degree, if any,
of sophistication of the consumers, under the fourth DuPont factor. Purchaser
sophistication or degree of care may tend to minimize likelihood of confusion.
Conversely, impulse purchases of inexpensive goods may have the opposite effect.
Palm Bay, 396 F.3d at 1376.
31 Carlyle Decl. ¶ 7 (Dec. 5, 2024 Request for Reconsideration at TSDR 26) (“RCGC sells its
HB SOFT putters to its authorized resellers, including sporting goods retailers, golf course
shops, and direct to consumers via e-commerce sales”).
32 Carlyle Decl. ¶¶ 8-9 (id. at TSDR 26-27).
33 4 TTABVUE 20.

Serial No. 97684418
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Applicant argues that “purchasers and consumers of Applicant’s HB SOFT putters
are sophisticated and exercise a high degree of care before making a purchase of such
goods. This is in part because HB SOFT putters, sold under the Cleveland® brand,
are highly recognized in the golf industry,” and Applicant’s putters command a high
price of $149.99 in a crowded market.34 Applicant argues that the “fans” of
Registrant’s brewery who purchase the golf balls “know full well with whom they are
dealing….”35
We are not persuaded by Applicant’s argument, which is based largely on
conjecture and extrinsic evidence. Absent express limitations in the application or
registration, we must assume that the identified goods encompass “all goods of the
type identified, without limitation as to their nature or price,” Sock It to Me v. Fan,
No. 91230554, 2020 TTAB LEXIS 201, at *24. The evidence of record shows that golf
balls may be inexpensive, in the range of ten to twelve dollars per pack.36 Golf clubs
also may be relatively inexpensive, costing under $100.37 Consumers of low-cost items
are likely to exercise no more than ordinary care, and we must base our decision on
“the least sophisticated potential purchasers.” Stone Lion, 746 F.3d at 1325 (citations
omitted). As the consumers of both Applicant’s and Registrant’s goods may include
either individual consumers of no special sophistication or sophisticated consumers,
we find this DuPont factor to be neutral.
34 Id. at 19-20 (citing Carlyle Decl. ¶ 10).
35 Id. at 20.
36 Sept. 30, 2024 Final Office Action, at TSDR 51-52.
37 E.g., id. at TSDR 47, 72.

Serial No. 97684418
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D. Strength of the Cited Mark
“Two of the DuPont factors (the fifth and sixth) consider strength.” Spireon, Inc.
v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023).38 The sixth DuPont factor “is a
measure of the extent to which other marks weaken the assessed mark.” Id.; see also
DuPont, 476 F.2d at 1361 (“[t]he number and nature of similar marks in use on
similar goods”).
As the Federal Circuit has explained, “[t]here are two prongs of analysis for a
mark’s strength under the sixth factor: conceptual strength and commercial
strength.” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023) (citation
omitted). “Conceptual strength is a measure of a mark’s distinctiveness…and
distinctiveness is often classified in categories of generally increasing
distinctiveness[:]… (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or
(5) fanciful.” Id. (citations omitted). “Distinctiveness is relevant to a mark’s overall
strength in the likelihood of confusion analysis.” Id. (citation omitted). “Commercial
strength, on the other hand, is ‘the marketplace recognition value of the mark.’” Id.
38 “The fifth DuPont factor, ‘[t]he fame of the prior mark (sales, advertising, length of use)’ ...
is a measure of the mark’s strength in the marketplace.” Spireon, 71 F.4th at 1362 (quoting
DuPont, 476 F.2d at 1361, and citing Joseph Phelps Vineyards, LLC v. Fairmont Holdings,
LLC, 857 F.3d 1323, 1325 (Fed. Cir. 2017)). The fifth factor normally is treated as neutral in
an ex parte appeal because the record generally includes no evidence as to fame, particularly
because the owner of the cited registration is not a party to the proceeding and therefore
cannot introduce evidence regarding its use of the cited mark. See In re Thomas, No.
78334625, 2006 TTAB LEXIS 135, at *18 n.11 (“It appears that applicant contends that the
absence of evidence of fame of the registrant’s mark should be treated as a factor in
applicant’s favor. Because this is an ex parte proceeding, we would not expect the examining
attorney to submit evidence of fame of the cited mark.”).

Serial No. 97684418
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at 1363 (quoting 2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 11:80 (5th ed. 2023)).
In terms of conceptual strength, we point out that “[b]ecause [the cited] mark is
registered on the Principal Register, with no claim of acquired distinctiveness under
Section 2(f), we presume it is inherently distinctive, i.e., that it is at worst suggestive
of the goods.” See Heil Co. v. Tripleye GmbH, No. 91277359, 2024 TTAB LEXIS 494,
at *18 (citing 15 U.S.C. § 1057(b)). Nevertheless, Applicant may show that the
existence of third-party registrations on similar goods diminish the cited mark’s
conceptual strength. See Spireon, 71 F.4th at 1363 (citing Juice Generation, Inc. v.
GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir. 2015)).
Applicant submitted a chart of six third-party registrations for marks including
the literal element HB to show that this portion of the mark in the cited registration
is conceptually weak and should not be afforded a broad scope of protection.39
Applicant did not make records of these registrations of record. “[M]erely listing
third-party registrations does not make them of record.” In re ZeroSix, LLC, No.
88981832, 2023 TTAB LEXIS 209, at *1; see also TBMP § 704.03(b)(1)(B) (“[A] party
may not make a third-party registration of record simply by introducing a list of third-
party registrations that includes it ... or by referring to the registration in its brief or
pleading.”). The Examining Attorney, however, did not object or make Applicant
aware that merely listing registrations does not make them of record. In re City of
Houston, No. 77660948, 2012 TTAB LEXIS 1, at *5 (“We find that the examining
39 Dec. 5, 2024 Request for Reconsideration, at TSDR 6-7.

Serial No. 97684418
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attorney’s failure to advise applicant of the insufficiency of the list of registrations
when it was proffered during examination constituted a waiver of any objection to
consideration of that list”; considering list for whatever probative value it may have),
aff’d, 731 F.3d 1326 (Fed. Cir. 2013); see also TMEP § 710.03 (“If the applicant’s
response includes improper evidence of third-party registrations, the examining
attorney must object to the evidence in the first Office action following the response.
Otherwise, the Board may consider the objection to be waived.”).
The Board does not take judicial notice of third-party registrations.40 See, e.g., In
re Thomas Nelson, Inc., No. 76681269, 2011 TTAB LEXIS 9, at *20 (“[T]he Board’s
well-established practice is not to take judicial notice of third-party registrations”).
We can base our decision only on what we can see, and the chart is devoid of details
such as full listings of goods, filing basis, and status, greatly detracting from the
probative value of the evidence.41 What we can see convinces us that the registrations
listed are have little probative value. Only four of the registrations list goods, and
these cover various toy that and are not at all similar to golf balls. It would be error
to rely on them. Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1236 (Fed. Cir. 2025)
(“We have held that the sixth DuPont factor does not require identical goods–only
40 To make a third-party registration of record, a copy of the registration (either a copy of the
paper USPTO record or a copy taken from the electronic records of the Office) should be
submitted during prosecution/examination of the application. In re Jump Designs, LLC, No.
76393986, 2006 TTAB LEXIS 209, at *6 (citing In re Volvo Cars of N. Am. Inc., No. 74212578,
1998 TTAB LEXIS 20, at *4 n.2).
41 See Dec. 5, 2024 Request for Reconsideration, at TSDR 6-7.

Serial No. 97684418
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similar ones.”) (citing Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 204 (Fed.
Cir. 1992); Juice Generation, 794 F.3d at 1338).
As to commercial weakness, the “probative value of third-party trademarks
depends entirely upon their usage.” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1771, 396 F.3d 1369, 1373 (Fed. Cir. 2005). “[W]here the ‘record
includes no evidence about the extent of [third-party] uses ... the probative value of
this evidence is thus minimal.” Id. There is no evidence of actual use as to any of the
third-party registrations.42 Applicant submitted evidence of two third-party uses: one
use of HB for toy trucks, which are unrelated to the relevant golf balls, and one for
use of H&B (and, alternatively, HB) for golf goods (club covers, golf bag, hat, and
towel).43 But only one relevant third-party use is insufficient to show commercial
weakness of a mark. Juice Generation, 794 F.3d at 1339; Jack Wolfskin Ausrustung
Fur Draussen GmbH & Co. KGAA v. New Millenium Sports, S.L.U., 797 F.3d 1363,
1373-74 (Fed. Cir. 2015); see also Embiid, 2021 TTAB LEXIS 168, at *52 (finding
three examples to be “a far cry from the large quantum of evidence of third-party use
and third-party registrations that was held to be significant” in Jack Wolfskin and
Juice Generation).
42 Applicant included one website URL in its Request for Reconsideration, Dec. 5, 2024
Request for Reconsideration, at TSDR 7, but did not include a screen shot or copy of the
resulting website. Materials cannot be made of record merely be supplying a hyperlink to a
web address whose content is subject to change. In re Powermat Inc., No. 77715011, 2013
TTAB LEXIS 5, at *5 (providing hyperlinks to Internet materials is insufficient to make
linked materials of record).
43 Dec. 5, 2024 Request for Reconsideration, at TSDR 7-10.

Serial No. 97684418
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The sixth DuPont factor is neutral in our analysis, and we accord the cited mark
the normal scope of protection due inherently distinctive marks.
E. Actual Confusion
Applicant argues that, under the eighth DuPont factor, there is no actual
confusion based on “evidence via its licensee that it has witnessed no instances of
actual confusion, despite selling tens of thousands of putters nationwide since
November 2022, supported by significant advertising and sales promotion.”44
The eighth DuPont factor considers the “length of time during and conditions
under which there has been concurrent use without evidence of actual confusion.” See
In re Jimenez, No. 97551823, 2025 TTAB LEXIS 441, at *20 (citing DuPont, 476 F.2d
at 1361). Evidence of lack of confusion from the applicant is of limited value in the ex
parte context where there is no opportunity to hear from the owner of the cited mark.
See In re Opus One, Inc., No. 75722593, 2001 TTAB LEXIS 707, at *19 (“The fact that
an applicant in an ex parte case is unaware of any instances of actual confusion is
generally entitled to little probative weight in the likelihood of confusion analysis,
inasmuch as the Board in such cases generally has no way to know whether the
registrant likewise is unaware of any instances of actual confusion….”) (citations
omitted). “The Examining Attorney is under no obligation to adduce such evidence in
an ex parte appeal.” Jimenez, 2025 TTAB LEXIS 441, at *20.
Moreover, the absence of any reported instances of confusion is meaningful only if
the record indicates appreciable and continuous use by Applicant of its mark for a
44 4 TTABVUE 21 (citing Carlyle Decl. ¶¶ 5-6).

Serial No. 97684418
- 27 -
significant period of time in the same markets as those served by the Registrant
under the cited mark. Id. at *20; Gillette Can. Inc. v. Ranir Corp., No. 91082769,
1992 TTAB LEXIS 24, at *19. In other words, for the absence of actual confusion to
be probative, there must have been a reasonable opportunity for confusion to have
occurred. Barbara’s Bakery, Inc. v. Landesman, No. 91157982, 2007 TTAB LEXIS
9, at *14 (the probative value of the absence of actual confusion depends upon there
being a significant opportunity for actual confusion to have occurred).
We do not find Applicant’s argument convincing in this case given less than three
years of co-existence and the lack of information about the extent of Respondent’s
sales of goods under the cited mark. Unlike the second and third DuPont factors, for
example, the seventh and eighth factors “require[ ] us to look at actual market
conditions, to the extent there is evidence of such conditions of record.” In re Guild
Mortg. Co., No. 86709944, 2020 TTAB LEXIS 17, at *19. Because Applicant’s witness
stated that the actual channels of trade for Applicant’s goods “differs significantly”
from the goods sold under the cited mark,45 we conclude that there has been no
meaningful opportunity for actual confusion to develop.
In sum, the record does not show “appreciable and continuous use by Applicant of
its mark for a significant period of time in the same markets as those served by
[Registrant] under its mark.” KME Ger. GmbH v. Zhejiang Hailiang Co., 2023 TTAB
LEXIS 379, at *53 (citations and subsequent history omitted). Therefore, the eighth
DuPont factor is neutral. See Stratus Networks, Inc. v. UBTA-UBET Communs. Inc.,
45 Carlyle Decl. ¶ 9 (Dec. 5, 2024 Request for Reconsideration, at TSDR 27).

Serial No. 97684418
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955 F.3d 994, 1000 (Fed. Cir. 2020) (finding no error in the Board’s finding that the
eighth Dupont factor was neutral where the parties’ services did not geographically
overlap because, “the record indicates that no consumers were exposed to both
trademarks during the relevant time periods”).
F. Conclusion on Likelihood of Confusion
Finally, we must weigh the findings we have made on the DuPont factors for which
there has been evidence and argument in this appeal. Charger Ventures, 64 F.4th at
1381 (“[I]t is important ... that the Board ... weigh the DuPont factors used in its
analysis and explain the results of that weighing.”). In this case, all of the factors
weigh in favor of likelihood of confusion or are neutral, and thus we conclude that
confusion is likely between the HB SOFT mark for goods in Class 28 and the cited
mark for goods in Class 28.
Decision
The refusal to register application Ser. No. 97684418 is affirmed under
Trademark Act Section 2(d).