Seen Nutrition

Mailed: June 12, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
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In re Seen Nutrition
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Serial No. 98615653
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Seen Nutrition, pro se (by Adrienne Bitar, Owner).
Miah LaMont, Trademark Examining Attorney, Law Office 117,
Cynthia Tripi, Managing Attorney.
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Before Pologeorgis, Allard, and Lavache,
Administrative Trademark Judges.
Opinion by Lavache, Administrative Trademark Judge:
Seen Nutrition (“Applicant”) seeks registration on the Principal Register of the
composite mark displayed below, for “Calcium supplements; Dietary food
supplements; Food supplements; Dietary supplements consisting primarily of
calcium; Health food supplements; Mineral food supplements; Mineral nutritional
supplements; Natural dietary supplements; Nutritional supplements; Nutritional
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 98615653
2
supplements consisting primarily of calcium; Vitamin supplements,” in International
Class 5.1
The Trademark Examining Attorney refused registration of Applicant’s mark on
the ground of likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C.
§ 1052(d), citing the standard character mark BE SEEN, which is registered on the
Principal Register for “Dietary and nutritional supplements,” in International Class
5.2 After the Examining Attorney issued a final refusal, Applicant filed this appeal.
Both Applicant and the Examining Attorney filed briefs.3 For the reasons explained
below, we affirm the refusal.
I. Evidentiary Objection
Before turning to our analysis, we address the Examining Attorney’s objection to
evidence that Applicant attached for the first time in its brief, consisting of excerpts
1 Application Serial No. 98615653, filed June 24, 2024, based on Applicant’s allegation of use
in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), claiming April 16, 2024,
as the date of first use anywhere, and June 14, 2024, as the date of first use in commerce.
Color is not claimed as a feature of the mark.
2 Registration No. 4909809, issued on March 16, 2016; renewed.
3 See Applicant’s Brief, 4 TTABVUE; Examining Attorney’s Brief, 6 TTABVUE.
The TTABVUE and Trademark Status and Document Retrieval (TSDR) citations in this
opinion refer respectively to entries in the Board’s electronic docket and the electronic
application file. For TTABVUE citations, the number preceding the TTABVUE designation
is the docket entry number and any numbers following indicate the relevant page numbers
within the docket entry.

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3
from various third-party websites.4 The record should be complete prior to the filing
of the appeal. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d); In re HSB Solomon
Assocs., No. 77136242, 2012 TTAB LEXIS 79, at *9; TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE (TBMP) § 1207.01 (2025). Because the third-party
website excerpts here were not timely submitted, we sustain the Examining
Attorney’s objection and have not considered the excerpts as evidence.
The Examining Attorney also objects to evidence submitted during prosecution
that was never properly introduced into the record.5 Specifically, the Examining
Attorney previously objected to, and did not consider, various internet materials
included in Applicant’s response to the initial nonfinal Office action, because they
lacked the date of access and/or the complete URL.6
As the Examining Attorney explained to Applicant in the final Office action,7 to
properly introduce internet evidence into the record, a party must provide (1) an
image file or printout of the downloaded webpage, (2) the date the evidence was
downloaded or accessed, and (3) the complete URL address of the webpage. See In re
I-Coat Co., No. 86802467, 2018 TTAB LEXIS 171, at *7-9; see also TBMP § 1208.03;
TRADEMARK MANUAL OF EXAMINING PROCEDURE § 710.01(b) (May 2026). The Board
will not consider internet evidence that does not comply with these requirements,
4 See Examining Attorney’s Brief, 6 TTABVUE 2.
5 Id.
6 See April 25, 2025 Final Office Action at TSDR 4-5.
7 Id.

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except where the examining attorney does not object. See I-Coat, 2018 TTAB LEXIS
171, at *9.
Here, the Examining Attorney timely and properly objected to the internet
materials and advised Applicant how to correct the deficiency.8 Applicant, however,
failed to do so. We therefore sustain the Examining Attorney’s objection and have not
considered this evidence.
II. Likelihood of Confusion
We now turn to the refusal underlying this appeal. Trademark Act Section 2(d),
in relevant part, prohibits registration of a mark that “so resembles a mark registered
in the Patent and Trademark Office . . . as to be likely, when used on or in connection
with the goods of the applicant, to cause confusion . . . .” 15 U.S.C. § 1052(d). To
determine whether confusion is likely, we analyze all probative evidence relevant to
the factors set out in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA
1973) (“DuPont”). See In re Majestic Distilling Co., 315 F.3d 1311, 1315 (Fed. Cir.
2003).
In every Section 2(d) case, two key DuPont factors are the similarity or
dissimilarity of the marks and respective goods, because the “fundamental inquiry
mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976). Here, we have considered
8 See id.

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each DuPont factor that is relevant and for which there is evidence and argument of
record. See In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
Varying weight may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed.
Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 1205 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination.”). Ultimately, however, “each case must be decided on its own facts
and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d
1197, 1199 (CCPA 1973).
A. Comparison of the Goods
We begin our analysis with the second DuPont factor, which concerns the
similarity or dissimilarity and nature of the respective goods, i.e., the relatedness of
the goods. DuPont, 476 F.2d at 1361. In assessing relatedness, we must consider the
goods as they are identified in Applicant’s application and the cited registration. See
Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014);
Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990).
Registration may be refused as to an entire class of goods in an application if the
applicant’s mark as used in connection with any of its identified goods in that class is
likely to cause confusion with the registrant’s mark for any of the goods listed in the
cited registration. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir. 1983)
(holding that a single good from among several may sustain a finding of likelihood of
confusion); Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336
(CCPA 1981) (indicating that likelihood of confusion must be found if there is likely

Serial No. 98615653
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to be confusion with respect to any item that comes within the identification of goods
in the application).
Here, Applicant’s goods are identified as “Calcium supplements; Dietary food
supplements; Food supplements; Dietary supplements consisting primarily of
calcium; Health food supplements; Mineral food supplements; Mineral nutritional
supplements; Natural dietary supplements; Nutritional supplements; Nutritional
supplements consisting primarily of calcium; Vitamin supplements,” in International
Class 5. Registrant’s goods are “Dietary and nutritional supplements,” in
International Class 5.
The wording “Dietary and nutritional supplements” in the cited registration’s
identification of goods encompasses all of the goods identified in the application.
Thus, the respective goods are legally identical. See In re Solid State Design Inc., No.
87269041, 2018 TTAB LEXIS 1, at *16 (noting that, where the goods in an application
or registration are broadly described, they are deemed to encompass all the goods of
the nature and type described therein); Sw. Mgmt., Inc. v. Ocinomled, Ltd., No.
94002242, 2015 TTAB LEXIS 176, at *60-61 (same). Applicant concedes as much,
stating that it “agree[s] with the USPTO that the goods for the purposes of Section
2(d) are identical.”9 Accordingly, the second DuPont factor weighs heavily in favor of
a conclusion that confusion is likely.
9 Applicant’s Brief, 4 TTABVUE 4.

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B. Trade Channels and Classes of Consumers
Next, we consider established, likely-to-continue channels of trade, the third
DuPont factor. DuPont, 476 F.2d at 1361. Because Applicant’s goods are legally
identical to Registrant’s goods, and there are no restrictions in the identifications as
to the goods or channels of trade, we presume that the trade channels and classes of
purchasers are the same. See In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012)
(finding Board entitled to presume that trade channels and classes of purchasers
were the same where the respective goods were identical); In re Am. Cruise Lines,
Inc., No. 87940022, 2018 TTAB LEXIS 363, at *5; In re Inn at St. John’s, LLC, No.
87075988, 2018 TTAB LEXIS 170, at *6, aff’d per curiam, 777 Fed. App’x 516 (Fed.
Cir. 2019). Applicant does not contend otherwise.10
The third DuPont factor therefore also weighs in favor of a conclusion that
confusion is likely.
C. Strength of the Cited Mark
Before we compare the marks at issue, we consider Applicant’s arguments
regarding the strength of the cited mark BE SEEN.11 We do so because a
determination of the strength or weakness of the mark helps inform us as to its scope
of protection. See In re Morinaga Nyugyo K.K., No. 86338392, 2016 TTAB LEXIS 448,
10 See id. (“[W]e also do not contend the USPTO’s presumption that the channels of trade and
classes of purchasers are the same.”). In context, we interpret Applicant’s statement to mean
that Applicant does not dispute that Applicant’s goods and Registrant’s goods have the same
channels of trade and classes of purchasers.
11 See id. at 5-10.

Serial No. 98615653
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at *17-18 (“[T]he strength of the cited mark is—as always—relevant to assessing the
likelihood of confusion under the du Pont framework.”).
When evaluating the strength or weakness of a mark, we look at the mark’s
inherent conceptual strength based on the nature of the term itself and its
commercial strength in the marketplace. See Spireon, Inc. v. Flex Ltd., 71 F.4th 1355,
1362 (Fed. Cir. 2023) (“There are two prongs of analysis for a mark’s strength under
the sixth factor: conceptual strength and commercial strength.”); In re Chippendales
USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010) (measuring both conceptual and
marketplace strength); Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022
TTAB LEXIS 228, at *24.
1. Conceptual Strength of the Cited Mark
Conceptual strength is a measure of a mark’s distinctiveness and may be placed
“in categories of generally increasing distinctiveness: . . . (1) generic; (2) descriptive;
(3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco Cabana, Inc., 505
U.S. 763, 768 (1992). Because the cited mark issued on the Principal Register without
a claim of acquired distinctiveness, the mark is presumed to be inherently distinctive
as to the goods listed in the cited registration. 15 U.S.C. § 1057(b); Tea Bd. of India
v. Republic of Tea, Inc., No. 9118587, 2006 TTAB LEXIS 330, at *62 (“A mark that is
registered on the Principal Register is entitled to all Section 7(b) presumptions
including the presumption that the mark is distinctive and moreover, in the absence
of a Section 2(f) claim in the registration, that the mark is inherently distinctive for
the goods.”).

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However, the Federal Circuit has held that if there is evidence that a mark, or an
element of a mark, is commonly adopted by many different registrants, that may
indicate that the mark or common element has some conceptual weakness as an
indicator of a single source. See Jack Wolfskin Ausrustung Fur Draussen GmbH &
Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 1374 (Fed. Cir. 2015)
(“[E]vidence of third-party registrations is relevant to ‘show the sense in which a
mark is used in ordinary parlance,’ . . . that is, some segment that is common to both
parties’ marks may have ‘a normally understood and well-recognized descriptive or
suggestive meaning, leading to the conclusion that segment is relatively weak.’”)
(quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir.
2015)).
Here, Applicant argues that BE SEEN “has a normally understood and well-
recognized descriptive or suggestive meaning” because third parties have used, are
using, or have filed applications for marks containing BE SEEN or SEEN and used
in connection with nutritional dietary supplements.12 However, as the Examining
Attorney points out,13 Applicant has not properly made of record any evidence in
support of this argument. Therefore, we cannot credit the argument.14
12 Id. at 7.
13 Examining Attorney’s Brief, 6 TTABVUE 8.
14 We note that even if Applicant had properly made of record third-party applications for
similar marks in connection with the same goods, they would be entitled to little, if any,
weight in the strength analysis, because “pending applications are not evidence of anything
except that the applications were filed on a certain date.” Nike, Inc. v. WNBA Enters., LLC,
No. 91160755, 2007 TTAB LEXIS 39, at *38.

Serial No. 98615653
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2. Commercial Strength of the Cited Mark
To assess commercial strength of the cited mark, we consider the number and
nature of similar marks in use on similar goods. DuPont, 476 F.2d at 1361; see
Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, No. 91217095, 2016
TTAB LEXIS 604, at *11. If the evidence establishes that the consuming public is
exposed to widespread third-party use of similar marks for similar goods, it “is
relevant to show that a mark is relatively weak and entitled to only a narrow scope
of protection.” See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 1373 (Fed. Cir. 2005).
In this case, however, Applicant has not made any arguments as to the commercial
strength of the cited mark, nor properly submitted any evidence of third-party
marketplace uses of marks identical or similar to the cited BE SEEN mark. Applicant
does make arguments as to the commercial strength of its own mark, but, these
arguments are likewise unsupported by the record.15
15 Applicant’s arguments about the commercial strength of its own mark could also be
construed as a claim that its mark is famous and thus confusion is unlikely. Under DuPont’s
fifth factor, we typically consider the “fame of the prior mark,” which, here, is the registered
mark. See DuPont, 476 F.2d at 1361 (emphasis added). In any event, even if Applicant had
established that its own mark is famous, that alone would not support registration of the
mark. That is, “fame of either [Applicant’s or Registrant’s] mark increases the likelihood of
confusion by making it more likely that purchasers will remember the famous mark and
think of it when encountering similar goods sold under a similar mark,” and “when confusion
is likely, it is the prior Registrant which must prevail” because the fame of an applicant’s
mark does not entitle the applicant to “usurp the cited [r]egistrant’s rights in the mark.” See
In re i.am.symbolic, LLC, No. 85044494, 2015 TTAB LEXIS 369, at *22 n.7, aff’d, 866 F.3d
1315, 1330 (Fed. Cir. 2017). To the extent the fifth DuPont factor is relevant at all here, we
deem it neutral.

Serial No. 98615653
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3. Conclusion as to the Strength of the Cited Mark
In sum, the evidence of record does not establish that the cited mark is either
conceptually or commercially weak. Thus, we deem the cited mark to have the normal
scope of protection afforded an inherently distinctive mark. See In re Thomas, No.
78334625, 2006 TTAB LEXIS 135, at *18.
Accordingly, we find that the sixth DuPont factor is neutral in our analysis.
D. Comparison of the Marks
We now address the first DuPont factor, which focuses on the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation,
and commercial impression. See Palm Bay, 396 F.3d at 1371 (quoting DuPont, 476
F.2d at 1361). Similarity as to any one of these elements may be sufficient to support
a finding that the marks are confusingly similar. See 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.”); Inn at St. John’s, 2018 TTAB
LEXIS 170, at *13.
Applicant’s mark is and the cited mark is BE SEEN in standard
characters. While the respective marks appear together here, this placement does not
reflect the actual conditions under which consumers are likely to encounter the marks
in the marketplace. Thus, when assessing these marks, “[t]he proper test is not a
side-by-side comparison of the marks, but instead whether the marks are sufficiently
similar in terms of their commercial impression such that persons who encounter the
marks would be likely to assume a connection between the parties.” In re

Serial No. 98615653
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i.am.symbolic, llc, 866 F.3d 1315, 1324 (Fed. Cir. 2017) (quoting Coach Servs. 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 Box Sols. Corp., No. 76267086, 2006 TTAB
LEXIS 176, at *14.
All elements of the respective marks must be considered. See Viterra, 671 F.3d at
1362 (“[M]arks must be viewed ‘in their entireties,’ and it is improper to dissect a
mark . . ., including when a mark contains both words and a design.”); In re Nat’l
Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985) (stating that “marks must be
compared in their entireties”). That said, “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.” Nat’l Data, 753 F.2d at 1058.
Further, where, as here, the goods are legally identical, the degree of similarity
between the marks necessary to support a determination that confusion is likely
declines. In re Mighty Leaf Tea, 601 F.3d 1342, 1348 (Fed. Cir. 2010); Century 21 Real
Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992).
Applicant asserts that its mark is “a visually distinct design mark,” which
“consists of a custom cursive script, within which the second ‘e’ in ‘Seen’ contains
three extended strokes that intentionally and prominently resembles [sic]
eyelashes.”16 According to Applicant, “the lash-like extensions are a central, defining
16 Applicant’s Brief, 4 TTABVUE 12.

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feature of the mark and create an immediate association with eyes and eyelashes,
which is consistent with Applicant’s branding across its goods, helping consumers
immediately resonate with the idea that their struggles with osteoporosis, a ‘hidden’
disease, are seen.”17 Thus, Applicant argues, the “overall visual presentation [of its
mark] differs sharply from Registrant’s ‘Be Seen’ mark, . . . which does not contain
comparable artistic features, imagery, or design symbolism.”18 However, we agree
with the Examining Attorney that any differences between the marks are outweighed
by the similarities and that these similarities will likely lead to confusion.19
Both marks contain the word SEEN and thus are similar in appearance and
sound. See, e.g., In re Aquitaine Wine USA, LLC, No. 86928469, 2018 TTAB LEXIS
108, at *5 (“The marks at issue are similar in sight and sound, since they share the
term LAROQUE.”). In making this finding, we acknowledge that the stylization of
Applicant’s mark, as well as its “lash-like” elements, create potential points of
distinction between the two marks, but we disagree that these differences obviate a
likelihood of confusion. See, e.g., In re Charger Ventures, 64 F.4th 1375, 1382 (Fed.
Cir. 2023) (“[A]n additional word or component may technically differentiate a mark
but do little to alleviate confusion.”).
Because the cited mark BE SEEN is registered in standard character form, it may
be presented in any font style, size, or color, including the same font style, size, and
17 Id. at 12-13.
18 Id. at 13.
19 See Examining Attorney’s Brief, 6 TTABVUE 4-6.

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color of the literal portion of Applicant’s mark. See Aquitaine Wine, 2018 TTAB LEXIS
108, at *13 (“[T]he rights associated with a standard character mark reside in the
wording per se and not in any particular font style, size, or color.”). And the SEEN
portion of the cited mark may be emphasized over the BE element through size,
placement, and stylization. Further, despite Applicant’s arguments to the contrary,
the addition of the “lash-like” elements in Applicant’s mark do little to mitigate
confusion. If, as Applicant asserts, these elements are supposed to conjure the
impression of eyelashes and an eye to convey that “consumers[’] . . . struggles . . . are
seen,” then they merely reinforce the impression created by the phrase BE SEEN.
See, e.g., Charger Ventures, 64 F.4th at 1382 (“[A]n additional . . . component may
technically differentiate a mark but do little to alleviate confusion.”); In re Max
Capital Grp. Ltd., 2010 TTAB LEXIS 1, at *17 (finding that the addition of a design
element to a word that is identical to another mark did not reduce likelihood of
confusion, especially where the respective services were legally identical). Simply put,
any connotation or commercial impression that the relevant consumers are likely to
attribute to Applicant’s mark could also be attributed to the cited mark.
Indeed, in this case, consumers could reasonably assume that Registrant’s goods
sold under the BE SEEN mark are from the same source as the goods sold under
Applicant’s mark, and that the BE SEEN mark is merely a variation of, or derivative
of, Applicant’s mark, or vice versa. See, e.g., In re Dare Foods Inc., No. 88758625, 2022
TTAB LEXIS 92, at *13 (“[C]onsumers encountering these marks [RAINCOAST DIP
and RAINCOAST trading] could mistakenly believe the former is a variation on the

Serial No. 98615653
15
registered mark used to identify a particular line of snack food dips, but nonetheless
emanating from a common source.”); Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc.,
No. 91197659, 2013 TTAB LEXIS 314, at *32 (“Purchasers of opposer’s GOTT and
JOEL GOTT wines are likely to assume that applicants goods, sold under the mark
GOTT LIGHT and design, are merely a line extension of goods emanating from
opposer.”); In re Comexa Ltda., No. 75396043, 2001 TTAB LEXIS 274 (applicant’s use
of term AMAZON and parrot design for chili sauce and pepper sauce is likely to cause
confusion with registrant’s AMAZON mark for restaurant services); SMS, Inc. v. Byn-
Mar Inc., No. 91068062, 1985 TTAB LEXIS 32, at *4 (finding applicant’s marks ALSO
ANDREA and ANDREA SPORT were “likely to evoke an association by consumers
with opposer’s preexisting mark [ANDREA SIMONE] for its established line of
clothing”).
Accordingly, we find Applicant’s mark is similar to the cited mark in terms of
sound, appearance, connotation, and overall commercial impression. The first
DuPont factor therefore weighs in favor of a conclusion that confusion as to source is
likely.
E. Purchasing Conditions and Sophistication of Purchasers
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361. Applicant argues that this factor weighs strongly in its
favor because “[d]ietary supplement consumers are discerning and research-oriented,
purchasing supplements with heightened attention to ingredients, certifications, and

Serial No. 98615653
16
trusted brands.”20 Applicant goes on to assert that these “[p]urchasers regularly
review labels, consult professionals, listen to health podcasts, and rely on reputation,”
which is “behavior that courts have found to reduce the likelihood of confusion.”21
However, the goods, as identified here, are not limited to particular classes or
types of purchasers, or to specific trade channels, and thus are available to members
of the general public. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 948 (Fed.
Cir. 2000) (affirming Board finding that where the identification is unrestricted, “we
must deem the goods to travel in all appropriate trade channels to all potential
purchasers of such goods”). Further, we presume, as we must, that the standard of
care for purchasing the goods is that of the least sophisticated potential purchaser.
See Stone Lion, 746 F.3d at 1325. In this case, that least sophisticated purchaser is a
member of the general public, who may have less knowledge about the goods and
exercise less caution when making purchases, especially where, as here, the goods
can be relatively inexpensive.22 And the record does not contain any evidence that
would lead us to believe that the such a purchaser would exercise anything more than
ordinary care. See In re Samsung Display Co., No. 90502617, 2024 TTAB LEXIS 258,
at *25-25.
In any event, even sophisticated purchasers are not immune from source
confusion, especially where, as here, the respective goods are legally identical and are
20 Applicant’s Brief, 4 TTABVUE 12.
21 Id.
22 See, e.g., April 25, 2025 Final Office Action at TSDR 39 (website excerpt showing a bottle
of dietary supplements being offered for sale for $4.99).

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(or will be) offered under similar marks. See Shell Oil, 992 F.2d at 1208 (citing Weiss
Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 1548 (Fed. Cir. 1990) (affirming the
Board’s reasoning that even sophisticated purchasers may be confused by similar
marks)).
Accordingly, we deem the fourth DuPont factor neutral in our analysis.
III. Conclusion
Having considered all of the arguments and evidence of record pertaining to the
relevant DuPont factors, we find that the marks are similar in terms of sound,
appearance, connotation, and overall commercial impression; that Applicant’s goods
and Registrant’s goods are legally identical; and that the respective goods presumably
travel through the same types of trade channels and are offered to the same or
overlapping classes of purchasers. These DuPont factors all weigh in favor of a
conclusion that confusion is likely, while the remaining relevant factors are neutral.
Accordingly, we conclude that consumer confusion is likely.
Decision: The refusal under Trademark Act Section 2(d) to register Applicant’s
mark is affirmed.