Alfwear, Inc. v. Kul Products LLC

This opinion is not a
precedent of the TTAB
Mailed: July 16, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Alfwear, Inc.
v.
Kul Products LLC
_____
Opposition No. 91290865
_____
S. Brandon Owen and Lydia A. Rytting of Ray Quinney & Nebeker P.C.; Trent
Baker of Baker IP PLLC,
for Alfwear, Inc.
Kul Products LLC pro se (by Joseph Higgins, owner)
_____
Before Heasley, Lebow, and Casagrande, Administrative Trademark Judges.
Opinion by Casagrande, Administrative Trademark Judge:
Applicant Kul Products LLC applied to register the mark on the
Principal Register for “Portable coolers, non-electric,” International Class 21.1
1 Applicant filed Application Serial No. 97738678 on January 1, 2023, under Section 1(a)
of the Trademark Act, 15 U.S.C. § 1051(a), alleging dates of first use anywhere and first use
in commerce of December 1, 2022. The application, as amended, states that “The English
translation of kul in the mark is cool” and disclaims exclusive rights in “COOL STOOL.” The
mark is described as follows: “The mark consists of the wording ‘KUL STOOL’ in dark blue

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Alfwear, Inc. (“Opposer”) opposes registration.2 Opposer’s Notice of Opposition
alleges ownership of four registrations:3
• Reg. No. 5931177 for the mark KÜHL in standard-character format for
“Water bottles sold empty; Empty water bottles for bicycles; Plastic water
bottles sold empty; Reusable plastic water bottles sold empty,” in
International Class 21;4
• Reg. No. 4441177 for the mark KUHL in standard-character format for
goods in three classes, including “Belts; Bottoms; Hats; Jackets; Pants;
Shirts; Shorts; Tops; Fabric sold as an integral component of finished
clothing, namely, Belts, Bottoms, Hats, Jackets, Pants, Shirts, Shorts and
Tops,” in International Class 25;5
• Reg. No. 3916866 for the mark KÜHL in standard-character format for
“Belts; Bottoms; Hats; Jackets; Pants; Shirts; Shorts; Tops,” in
International Class 25;6 and
• Reg. No. 4777532 for the mark KUUL in standard-character format for
goods including “Belts; Bottoms; Hats; Jackets; Pants; Shirts; Shorts;
Tops,” in International Class 25.7
appearing within a dark blue oval with a mountain design appearing in dark blue and light
blue with a path down the middle. The color white represents background, outlining, shading,
and/or transparent area and is not part of the mark.”
2 See 1 TTABVUE. References to the briefs, other filings in the case, and the record cite the
Board’s TTABVUE docket system. The number preceding “TTABVUE” is the docket number
assigned to the cited filing in TTABVUE and any number immediately following “TTABVUE”
identifies the specific page(s) to which we refer.
3 Opposer also claims ownership of a pending application, but we need not discuss it.
4 Reg. No. 5931177 issued on December 10, 2019, Section 8 & 15 combined declaration
accepted and acknowledged, respectively. It claims a date of first use anywhere and in
commerce of April 30, 2019. The registrations states: “The English translation of ‘KÜHL’ in
the mark is ‘COOL’.”
5 Reg. No. 4441177 issued on November 26, 2013, and has been renewed. It lists a date of
first use anywhere and in commerce of February 1, 1994. The registration states: “The
English translation of ‘KÜHL’ [sic] in the mark is ‘COOL’.”
6 Reg. No. 3916866 issued on February 8, 2011, and has been renewed, It lists a date of
first use anywhere and in commerce of February 1, 1994. The registration states: “The
English translation of ‘KÜHL’ in the mark is ‘COOL’.”
7 Reg. No. 4777532 issued on July 21, 2015, and has been renewed. It claims a date of
first use anywhere and in commerce for the Class 25 goods of May 21, 2015.

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The Notice of Opposition asserts two claims: (1) likelihood of confusion under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d); and (2) dilution by blurring
under Section 43(c), 15 U.S.C. § 1125(c). Applicant denied the salient allegations in
the Notice of Opposition.8
Opposer filed public and confidential versions of its trial briefs.9 After Applicant
filed its trial brief,10 Opposer filed a reply brief.11
For the reasons explained below, we sustain the opposition under Section 2(d),
based solely on Opposer’s Registration No. 5931177.12
I. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of Applicant’s challenged application.
During its trial period, Opposer submitted additional evidence as to its claims,
including sixteen (16) Notices of Reliance, as well as public and private versions of
the Declaration of Nathan Fay, Opposer’s CEO, attaching as exhibits many of the
same documents that Opposer submitted with its notices of reliance. We have
reviewed all this evidence, but rather than listing, or trying to summarize, what’s in
8 See 10 TTABVUE (Answer).
9 See 49 TTABVUE (public version); 50 TTABVUE (confidential version).
10 See 51 TTABVUE.
11 See 52 TTABVUE.
12 Where multiple registrations are in play, we normally abbreviate them, referring to them
by the last three digits in the registration numbers (e.g., the ’123 Registration). We can’t do
that here because Registration No. 5931177 ends in the same last four digits as another of
Opposer’s registrations.

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the sixteen (16) notices of reliance and the sixty-three (63) exhibits to the Fay
Declaration, our analysis below will simply refer to the evidence as needed.
Applicant submitted five (5) Notices of Reliance13 and the declaration of its
founder, Joseph Higgins.
II. Opposer is statutorily entitled to pursue this opposition
proceeding
Before we address the merits of Opposer’s claims, we need to make sure the
relevant statute authorizing us to resolve opposition proceedings entitles Opposer to
ask us to do so. An opposer filing an opposition proceeding under Section 13 of the
Trademark Act, 15 U.S.C. § 1063, must demonstrate: (i) an interest falling within the
zone of interests protected by the opposition statute; and (ii) proximate causation.
Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020) (citing Lexmark
Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 120-37 (2014)); id. at 1305
(applying Lexmark to inter partes TTAB cases). Demonstrating a real interest in
opposing registration of the challenged mark satisfies the zone-of-interests
requirement, and demonstrating a reasonable belief in damage by the registration of
the mark establishes proximate causation. Id. at 1305-06.
Opposer’s Notice of Opposition plausibly alleges that Applicant’s mark creates a
likelihood of consumer confusion as to source in view of its asserted registrations.
Opposer submitted title and status copies of the asserted registrations from the
13 Applicant labelled them first, third, fourth, fifth, and sixth notices of reliance. TTABVUE
does not reflect the filing of a “second” notice of reliance.

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USPTO’s TSDR database during its trial period.14 Accordingly, Opposer has
established that it is entitled to have filed this statutory opposition proceeding. See,
e.g., Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, at
*9 (TTAB 2021); Primrose Ret. Communities, LLC v. Edward Rose Senior Living,
LLC, No. 91217095, 2016 WL 7655551, at *2 (TTAB 2016). Entitlement to oppose
based on one statutory bar to registration entitles Opposer to raise any other
applicable grounds for opposition, such as its dilution claim. See, e.g., Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1377 (Fed. Cir. 2012).
III. ANALYSIS
We begin by addressing Opposer’s Section 2(d) likelihood of confusion claim.
Because Opposer asserted likelihood of confusion based on four registrations, we have
to pick one with which to begin. We’ll start (and end) with Registration No. 5931177
for the mark KÜHL in standard characters for goods in Class 21, which is the same
class as the “Portable coolers, non-electric” in the application.
A. Opposer’s Section 2(d) claim
Section 2(d) provides, in pertinent part: “No trademark … shall be refused
registration on the principal register on account of its nature unless it … Consists of
or comprises a mark which so resembles [1] a mark registered in the Patent and
Trademark Office, or a mark or trade name previously used in the United States by
another and not abandoned, [2] as to be likely, when used on or in connection with
14 See 13 TTABVUE.

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the goods of the applicant, to cause confusion, or to cause mistake, or to deceive
(bracketed numbers added).” As the brackets highlight, there are two elements of a
Section 2(d) claim: priority (either under common law or based on a prior registration)
and likelihood of confusion.
1. Common-law priority is not an issue
The first element in Section 2(d) requires an opposer to establish priority, either
through either proof of ownership of a registration or proof of priority of use. Where
an opposition is based on ownership of a registered mark, and the registration is of
record, and the applicant has not counterclaimed to cancel it, the opposer need not
prove priority of use of the mark as to the goods and services covered by the
registration. See, e.g., Top Tobacco LP v. N. Atl. Op. Co., No. 91157248, 2011 WL
6099691, at *6 (TTAB 2011); Itel Corp. v. Ainslie, No. 91072956, 1988 WL 252407, at
*2 (TTAB 1988). That is the case here, so the first element of a Section 2(d) claim is
satisfied without the need for Opposer to also prove priority of use.
2. Likelihood of confusion
The remaining element of a Section 2(d) claim is likelihood of confusion. “[T]he
opposer has the burden of proving a likelihood of confusion by a preponderance of the
evidence.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 998
(Fed. Cir. 2020) (citation omitted). To determine whether Opposer has proved
confusion is likely, we evaluate evidence pertaining to several factors that inform the
determination whether confusion is likely. See, e.g., id. (citing In re E.I. du Pont de
Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (listing the factors)). Though du

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Pont lists thirteen numbered factors (some with subparts), we generally address only
those that are relevant and material to the case before us. See, e.g., Shen Mfg. Co. v.
Ritz Hotel, Ltd., 393 F.3d 1238, 1241 (Fed. Cir. 2004); Octocom Sys., Inc. v. Hous.
Comput. Servs., Inc., 918 F.2d 937, 943 (Fed. Cir. 1990). Typically, these are the
factors addressed in the briefs and based on relevant evidence in the record. See, e.g.,
Dollar Fin. Grp., Inc. v. Brittex Fin., Inc., 132 F.4th 1363, 1371-72 (Fed. Cir. 2025);
Cunningham v. Laser Golf Corp., 222 F.3d 943, 946-47 (Fed. Cir. 2000). We then
weigh our findings on these factors to determine if, on balance, they indicate that
confusion is likely. See, e.g., In re Mastic Inc., 829 F.2d 1114, 1117 (Fed. Cir. 1987)
(“The factors themselves, e.g., the similarity or dissimilarity of the marks and trade
channels, must be weighed in the likelihood of confusion determination ….”); see also
Fuente Mktg. Ltd. v. Vaporous Techs., LLC, 172 F.4th 1337, 1347 (Fed. Cir. 2026)
(“The likelihood of confusion analysis is a balancing test … .”); Citigroup Inc. v. Cap.
City Bank Grp., Inc., 637 F.3d 1344, 1349 (Fed. Cir. 2011) (“[W]e conclude the legal
analysis by balancing the DuPont factors and assessing the likelihood of confusion
between the parties' respective marks.”).
We now turn to the relevant factors.
a. Comparison of the marks
We start with the “similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression.” du Pont, 476 F.2d at
1361; see also Hewlett-Packard, 281 F.3d at 1265; In re i.am.symbolic, llc, 866 F.3d
1315, 1323 (Fed. Cir. 2017). Similarity in all aspects is not required, however. This

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factor supports refusal “if the similarity in either form, spelling or sound alone is
likely to cause confusion.” Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732
(CCPA 1968) (citation omitted); see also Hancock v. Am. Steel & Wire Co., 203 F.2d
737, 740 (CCPA 1953) (“it is proper to consider [the marks’] appearance, sound and
meaning … but a combination of all three factors need not necessarily exist”) (cleaned
up; citations omitted).
We do not compare the marks side-by-side, as though in a laboratory. Rather, we
keep in mind both that consumers depend on their recollection of marks to which
they’ve previously been exposed and that recollections can be fallible. See, e.g., In re
St. Helena Hosp., 774 F.3d 747, 751 (Fed. Cir. 2014); Franklin Mint Corp. v. Master
Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981). Though we always compare marks in
their entireties, see, e.g., Oakville Hills Cellar, Inc. v. Georgallis Holdings, LLC, 826
F.3d 1376, 1380 (Fed. Cir. 2016), sometimes “one feature of a mark may be more
significant than another, and it is not improper to give more weight to this dominant
feature in determining the commercial impression created by the mark.” Coach
Servs., 668 F.3d at 1368 (citations omitted).
“Similarity is not a binary factor but is a matter of degree.” St. Helena Hosp., 774
F.3d at 752 (citation omitted). “The proper test is … 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.”
i.am.symbolic, 866 F.3d at 1323 (citation omitted); see also Phillips Petroleum Co. v.

Opposition No. 91290865
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Knox Indus. Corp., 277 F.2d 945, 947 (CCPA 1960) (“The issue is whether the marks
are confusingly similar, not whether they are identical.”) (citation omitted).
Here, the mark in Registration No. 5931177 is KÜHL in standard characters. The
registration states that KÜHL translates to “cool” in English. Applicant’s mark is
. The literal element is the term “KUL STOOL.” The application
states that the first word, KUL, as in the registration, translates to “cool” in English.15
Applicant argues that KUL and KÜHL have different meanings. Applicant avers
that its KUL is “short for cooler”16 and asserts that it was “inspired by ‘cool’ for
insulation,”17 but in connection with clothing, KÜHL (cool) refers not to cool
temperatures, but to “stylish apparel.”18. But right now we’re assessing only
Registration No. 5931177, which identifies “Water bottles sold empty; Empty water
bottles for bicycles; Plastic water bottles sold empty; Reusable plastic water bottles
sold empty.” We determine the meaning and connotation of the respective marks in
15 Registrations for marks in standard-character format like KÜHL provide rights as to any
typeface and color, so any specific typeface or color for the literal elements of Applicant’s
mark can’t be a basis to distinguish that mark. See, e.g., Cai v. Diamond Hong, Inc., 901 F.3d
1367, 1373 (Fed. Cir. 2018) (comparing senior registrant’s standard-character mark to junior
registrant’s color-claim mark, court said: “The fact that color is not claimed as a feature of
Diamond Hong’s mark, further highlights the likelihood of confusion because, as the TTAB
correctly identified, Diamond Hong’s mark ‘could be presented in a green-and-white color
scheme like [Mr. Cai’s] mark.’”); SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir. 1983)
(“the argument concerning a difference in type style is not viable where one party asserts
rights in no particular display”).
16 See 46 TTABVUE 5.
17 See 51 TTABVUE 15.
18 See id. at 16.

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Section 2(d) cases just as we assess consumer perception of marks in any other sort
of case: in the context of the goods and/or services at issue. See, e.g., Coach Servs., 668
F.3d at 1369; Presto Prods. Inc. v. Nice-Pak Prods. Inc., No. 91074797, 1988 WL
252340, at (TTAB 1988); In re Sydel Lingerie Co., 1977 WL 22667, at *2 (TTAB 1977).
And in the context of Registration No. 5931177, we find consumers are likely to
perceive KÜHL as referring to the “cool” temperature of beverages to be kept in
identified water bottles. While Applicant does not mention the mountain design
element in its mark or explain how that differentiates the two marks, the white space
between the first and second peaks looks like snow or a glacier. As such, the mountain
design tends to reinforce the temperature connotation of KUL. See, e.g., Herbko Int’l,
308 F.3d at 1165; In re Wings Pub. Co., 148 F.2d 214, 216 (CCPA 1945).
In any event, in assessing overall commercial impression, usually “the verbal
portion of a word and design mark likely will be the dominant portion. This makes
sense given that the literal component of brand names likely will appear alone when
used in text and will be spoken when requested by consumers.” In re Viterra Inc., 671
F.3d 1358, 1366 (Fed. Cir. 2012) (citation omitted); see also id. at 1366-67 (“we
previously have found that the dominant portion of a composite word and design
mark is the literal portion, even where the literal portion has been disclaimed.”)
(citing Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1570-71 (Fed.
Cir. 1983) (finding that the term “GIANT” was the dominant portion of a mark
consisting of the words GIANT HAMBURGERS with a large background design, even

Opposition No. 91290865
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though the applicant disclaimed “GIANT HAMBURGERS.”).19 Thus, we do not
regard the mountain design (or the partial oval surrounding the terms KUL STOOL)
to be the dominant portion of Applicant’s mark.
Further, in assessing marks consisting of more than one word, our primary
reviewing Court has noted on several occasions that first words tend to make more of
an impression on consumers than the words that follow. See, e.g., In re Detroit Athl.
Co., 903 F.3d 1297, 1303 (Fed. Cir. 2018) (“The identity of the marks’ initial two words
is particularly significant because consumers typically notice those words first.”)
(citations omitted); Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin, 396 F.3d
1369, 1372-73 (Fed. Cir. 2005) (“Veuve” is the most prominent part of the mark
VEUVE CLICQUOT and constitutes its “dominant feature” because “veuve” is the
first word in the mark and the first word to appear on the label); Century 21 Real
Estate Corp. v. Century Life of Am., 970 F.2d 874, 876 (Fed. Cir. 1992) (Board correctly
found that “Century” is the “dominant element of CENTURY LIFE OF AMERICA
due to applicant’s disclaimer of the rest of its mark” and because “upon encountering
each mark, consumers must first notice this identical lead word”).
Based on these principles and the facts before us, we find that KUL is the
dominant contributor to the overall commercial impression of Applicant’s mark.
19 Applicant does not argue that the second word, STOOL, changes the meaning of KUL.
See 51 TTABVUE 10 (The Mark features ‘KUL’ stylized in blue, evoking ‘cool’ for temperature
regulation, combined with ‘STOOL’ to denote its multifunctional design as a portable cooler
that doubles as a seat. Applicant’s product is a compact, insulated stool-cooler for outdoor
activities like camping or fishing”).

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Applicant argues that the umlaut over the “U” in KÜHL creates a visual and aural
difference.20 It does create a visual difference, but a minor one. As to pronunciation,
it is well settled that “there is no correct pronunciation of a trademark ….” Viterra,
671 F.3d at 1367 (citation omitted); see also Crown Overall Mfg. Co. v. Edward
Makransky Co., 187 F.2d 175, 176 (CCPA 1951) (“There is no such thing as a correct
pronunciation for a trade-mark. It is pronounced in different ways by different
people.”) (citation omitted). Even were we to assume that the registrant intended for
the umlaut to have some sort of impact on how consumers pronounce the word, it is
also well settled that “consumers may pronounce a mark differently than intended by
the brand owner.” Viterra, 671 F.2d at 1367 (citation omitted). Reflecting these
principles, our decisions generally have not attributed much impact to accent marks.
See, e.g., Conwood Corp. v. S.A. Bongrain-Gerard, No. 91055383, 1976 WL 20922, at
*3 (TTAB 1976) (“[T]he average member of the American purchasing public would
not normally be aware of the significance of the accent mark appearing over the letter
‘E’ of applicant’s mark, and hence would not be apt to place too much significance or
reliance on this feature of the mark as a recognition factor. The accent mark would,
in any event, be lost when the mark is used orally to order applicant’s cheese.”); see
also Pass & Seymour, Inc. v. Syrelec, No. 92013407, 1984 WL 63175, at *5 (TTAB
1984) (finding that, despite accent in stylized version of SYR ÉLEC, mark was
“sufficiently similar” to SYRACUSE ELECTRONICS that “use in connection with
identical goods would be likely to cause confusion”), aff’d, 869 F.2d 838 (5th Cir. 1989).
20 See 51 TTABVUE 16.

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Absent evidence in the record indicating that U.S. consumers pronounce KÜHL
differently than they would pronounce KUL, we are not persuaded that these words
sound different from one another.
Applicant also correctly observes that the second word STOOL is a visual
difference and adds another sound. But as Applicant notes elsewhere in its brief, one
of the functions of its product, besides being a cooler, is to provide “a sturdy stool for
seating,”21 so this term is generic (or at best highly descriptive) of the product.
Consequently, while STOOL is a visual difference, it is not a difference that has much
impact on the commercial impression of the mark as a whole. See, e.g., In re Chatam
Int’l Inc., 380 F.3d 1340, 1342-43 (Fed. Cir. 2004) (“Because ALE has nominal
commercial significance, the Board properly accorded the term less weight in
assessing the similarity of the marks under DuPont. As a generic term, ALE simply
delineates a class of goods.”) (citation omitted); Cunningham, 222 F.3d at 947
(“Regarding descriptive terms, this court has noted that the descriptive component of
a mark may be given little weight in reaching a conclusion on likelihood of
confusion.”) (citation and internal quotation marks omitted). So even though it
introduces a small visual and sound difference, consumers hearing or seeing KUL
STOOL may well think that Applicant’s product is a stool offered by Opposer.
To summarize, we find that KUL is the element of Applicant’s mark that
contributes most to the commercial impression of Applicant’s mark as a whole. That
term is, like the mark KÜHL, likely to be pronounced “cool” by American consumers
21 Id. at 20.

Opposition No. 91290865
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of water bottles and coolers. The term STOOL is a visual and aural difference from
the registered KÜHL mark, as is the umlaut over KÜHL. But they are minor
differences. We find the marks, overall, to be similar. This factor thus will weigh in
favor of a conclusion that confusion is likely.
b. Comparison of the goods
The second likelihood-of-confusion factor is “[t]he similarity or dissimilarity and
nature of the goods or services as described in an application or registration or in
connection with which a prior mark is in use.” du Pont, 476 F.2d at 1361. This factor
“considers 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) (cleaned up; citation omitted). “Even if the goods and services in question
are not identical, the consuming public may perceive them as related enough to cause
confusion about the source or origin of the goods and services.” Hewlett-Packard, 281
F.3d at 1267 (citation omitted); see also In re Rsch. & Trading Corp., 793 F.2d 1276,
1278 (Fed. Cir. 1986) (“It is … not necessary that the goods [or services] of the parties
be identical in order to sustain a finding of likelihood of confusion.”) (citations
omitted).
One way to show that consumers perceive products or services as related is to
show that other companies offer the goods (or services) in an application and those
in a cited registration. See, e.g., Naterra Int’l, 92 F.4th at 1117 (“testimony that third-
party companies sell both types of goods is pertinent to the relatedness of the goods”)

Opposition No. 91290865
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(citation omitted); Hewlett-Packard, 281 F.3d at 1267 (“evidence, such as whether a
single company sells the goods and services of both parties, if presented, is relevant
to a relatedness analysis”); accord Recot, Inc. v. Becton, 214 F.3d 1322, 1328 (Fed. Cir.
2000). The more consumers are exposed to companies who put out good X and good
Y, the more they tend to see those goods as related, in the sense that they emanate
from a single source. Here, Opposer placed in the record evidence that over two dozen
companies offer both goods.22 This amply shows substantial consumer exposure to
nonelectric coolers and water bottles coming from the same source.
Applicant’s only rejoinders to the wealth of relatedness evidence offered by
Opposer is to (1) insist that companies rarely sell both under one mark; (2) point out
that consumers can tell water bottles and portable coolers apart; and (3) note that
Applicant’s product functions not just as a cooler, but also as a seat.23 The evidence,
however, negates Applicant’s insistence that companies “rarely” sell both types of
goods. And, as we pointed out above, the products don’t have to be identical for
confusion to be likely. See, e.g., Hewlett-Packard, 281 F.3d at 1267; Rsch. & Trading
Corp., 793 F.2d at 1278. That consumers can tell a water bottle from a cooler answers
22 See, e.g., Opposer’s 15th Notice of Reliance, 30 TTABVUE at 13-18 (Bass Pro Shops); id.
at 25-27 (Canyon Coolers); id. at 34-37 (Engel); id. at 39-43 (Grizzly); id. at 45-46 (K2); id. at
48-52 (ORCA); id. at 54-546 (Polar Bear Coolers); id. at 59-64 (Stanley); id. at 67-70 (Snow
Peak); id. at 72-74 (LL Bean); id. at 85-89 (Columbia); id. at 91-97 (Gatorade); id. at 99-102
(RTIC); id. at 104-10 (Coleman); id. at 112-17 (Igloo); id. at 119-25 (Hydro Flask); id. at 127-
30 (REI Co-op); id. at 133-38 (Under Armour); id. at 140-46 (Ozark Trail); id. at 152-76 (Yeti);
id. at 178-81 (Cordova); id. at 184-87 (Pelican); id. at 190-93 (Simple Modern); id. at 206-10
(Wyld Gear); id. at 212-14 (Jackson Kayak/Orion); id. at 216-19 (Maluna); id. at 222-25 (Icon);
id. at 237-40 (Esky); id. at 242-45 (Bison); see also Opposer’s 14th Notice of Reliance, 28
TTABVUE 19-29 (Dick’s Sporting Goods) (including several coolers and water bottles under
its DSG brand).
23 See 51 TTABVUE 24.

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the wrong question: the question is not whether consumers will confuse the products
or can tell them apart, but whether confusion as to source is likely. See Hydra Mac,
Inc. v. Mack Trucks, Inc., 507 F.2d 1399, 1400 (CCPA 1975); Mishawaka Rubber &
W. Mfg. Co. v. Bata Narodni Podnik, 222 F.2d 279, 287 (CCPA 1955).
And finally, it does not matter what other functions beside serving as a portable
non-electric cooler that Applicant’s product can perform. We examine the relatedness
of the goods based on the identifications in the application and registration at issue.
See, e.g., Detroit Athl., 903 F.3d at 1307 (“The relevant inquiry in an ex parte
proceeding focuses on the goods and services described in the application and
registration, and not on real-world conditions.”) (emphasis in original; citation
omitted); Octocom Sys., 918 F.2d at 942 (“The authority is legion that the question of
registrability of an applicant’s mark must be decided on the basis of the identification
of goods set forth in the application regardless of what the record may reveal as to
the particular nature of an applicant’s goods ….”) (citations omitted).
Based on the plentiful third-party use evidence, we find that the respective goods
in the application and the goods in Registration No. 5931177 are closely related. In
our final weighing of the relevant factors, this factor will count in favor of a conclusion
that confusion is likely.24
24 Opposer also submitted copies of several use-based registrations that list both coolers and
water bottles among the goods identified. See 49 TTABVUE 35 (citing Opposer’s 8th & 9th
Notices of Reliance, 22 & 23 TTABVUE). Like the third-party use evidence just discussed,
this sort of evidence is relevant to show that the respective goods are related. See, e.g., Made
in Nature, 2022 WL 2188890, at *24; In re Country Oven, Inc., No. 87354443, 2019 WL
6170483, at *5 (TTAB 2019); see also In re Halo Leather Ltd., 735 F. App’x 722, 727 (Fed. Cir.
2018). In view of the substantial and persuasive third-party use evidence identified above,
this registration evidence is merely cumulative, so we won’t catalog or discuss it. See Fed. R.

Opposition No. 91290865
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c. The respective trade channels and customers
We next consider “[t]he similarity or dissimilarity of established, likely-to-
continue trade channels” as well as “[t]he conditions under which and buyers to whom
sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” du Pont, 476 F.2d
at 1361. As with the comparison of the goods, we base our comparison of the trade
channels and customers on what is set forth in the application and cited registration.
See, e.g., i.am.symbolic, 866 F.3d at 1325; CBS Inc. v. Morrow, 708 F.2d 1579, 1581
(Fed. Cir. 1983).
Starting with trade channels, we observe that neither the application nor
Registration No. 5931177 sets forth any limitation or restriction on trade channels.
Where an application or registration contains no limitations that would bear on the
trade channels and classes of customers, there is a presumption that the trade
channels and classes of customers are the usual ones for whatever goods or services
are identified. See, e.g., Coach Servs., 668 F.3d at 1370. In two places in its brief,
however, Applicant asserts it uses only “specialized retailers and online platforms.”25
At another, it says coolers are sold in “hardware/big-box” stores.26 These two
statements are difficult to reconcile. Applicant points to no evidence supporting these
different assertions, but no matter. Its application is unrestricted, so even if there
were evidence that, so far, Applicant has limited its trade channels in some fashion,
Evid. 403; see also Trademark Rule 2.122(a), 37 C.F.R § 2.122(a) (Federal Rules of Evidence
applicable to Board inter partes cases).
25 See 51 TTABVUE 11, 20.
26 See id. at 26.

Opposition No. 91290865
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such restrictions cannot limit the application, which reflects no limitations. See, e.g.,
Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367, 1377 (Fed. Cir. 2002); Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1337 (CCPA 1981).
In trying to differentiate Opposer’s trade channels from its own, Applicant does
not address Opposer’s water bottles, but only its apparel.27 Opposer, however, points
to evidence that several online retail outlets offer both nonelectric portable coolers
and water bottles.28 Further, the evidence we listed above in discussing that several
third-parties offer their own-branded coolers and water bottles also shows that they,
too, offer both types of products on their own websites.29
Based on this evidence, we find that the respective goods in the application and in
Registration No. 5931177 are offered in overlapping trade channels, to overlapping
classes of customers. When we weigh and balance the du Pont factors, these two
factors will lend further support to a conclusion that confusion is likely.
Turning to the degree of care the typical purchasers exercise, Applicant argues
that its current product sells for between $100-$120 and “involve[es] deliberate
decisions” by purchasers who consider several factors,30 whereas “water bottles
involve low-involvement hydration choices.”31 Opposer points to the various third-
27 See id. (alleging that apparel is sold in “specialty stores”).
28 See 50 TTABVUE 35 (citing Opposer’s 14th Notice of Reliance, 28 TTABVUE 7-11
(Scheel’s website); id. at 14-17 (Eddie Bauer website ); id. at 19-29 (Dick’s website); id. at 32-
40 (Backcountry website); id. at 43-46 (Academy); id. at 48-53 (Cabela’s); id. at 55-64
(Sportsmans Warehouse); id. at 67-70 (Big 5 Sporting Goods); id. at 72-75 (Sierra).
29 See supra n.22.
30 See 51 TTABVUE 26.
31 See id. at 27.

Opposition No. 91290865
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party retail websites we just discussed, which show that many models of portable
coolers cost much less than Applicant’s.32 In addition, some water bottles sell for more
than some of these low-cost coolers we have identified.33
That Applicant may currently sell its only portable nonelectric cooler offering for
$120 does not negate that the broadly-identified goods in its application in fact
encompass goods sold for far less. See, e.g., Luzier Inc. v. Marlyn Chem. Co., 442 F.2d
973, 974-75 (CCPA 1971) (rejecting as irrelevant alleged distinctions in price and
manner of sales where “[t]here is nothing in opposer’s registration nor in the
description of goods in applicant’s applications to restrict the goods to any price range,
method of marketing, packaging quantities, or class of purchasers”); accord Kohler
Co. v. Baldwin Hardware Corp., No. 92041434, 2007 WL 117575, at *13 (TTAB 2007);
see also Tuxedo Monopoly, 648 F.2d at 1337 (“Design features associated with
appellant’s mark, or appellant’s asserted restriction of sales to an exclusive boutique
in Tuxedo Park, New York, are considerations similarly irrelevant to the question of
registrability of appellant’s mark when such limitations are not inherent in
marketing of the goods or specifically set forth as limitations in the application.”).
32 See 49 TTABVUE 44 (citing Opposer’s 15th Notice of Reliance, 30 TTABVUE). Our review
of these pages reveals that some nonelectric portable coolers retail for as little as $19.99 (30
TTABVUE 14 & 114); see also id. at 104 ($23.99); id. at 127 ($24.99); id. at 72 ($29.99);
Opposer’s 14th Notice of Reliance, 28 TTABVUE 49 & 72 ($19.99); id. at 20 ($24.99); id. at
43 & 67 ($29.99); id. at 14 ($30.00).
33 See id. at 70 ($38.00); id. at 45 & 74-75 ($39.99); id. at 10 & 16 ($50.00); id. at 40 ($54.95);
id. at 51 & 228 ($65.00); id. at 61 ($89.95); see also Opposer’s 15th Notice of Reliance, 30
TTABVUE 115 ($34.99); id. at 51 ($36.00); id. at 17 & 203 ($39.99); id. at 26, 187 & 234
($40.00); id. at 94 ($44.99); id. at 60-61 ($45.00); id. at 42 ($49.99); id. at 173 ($55.00); id. at
109 ($60.99); id. at 122 ($64.95); id. at 63 ($75.00); id. at 69 ($149.95).

Opposition No. 91290865
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We note that this factor requires us to base our finding “on the least sophisticated
potential purchasers” within the classes of customers. See Stone Lion Cap. Partners,
L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (citations omitted).
Taking that into account, we find that the respective goods do not lend themselves
the kinds of sharply-contrasting degrees of care Applicant urges us to find without
supporting evidence. Neither, however, do we see any evidence that these are the type
of goods generally subject to impulse-purchasing behavior, as Opposer urges.34 We
find that the customer care factor favors neither party (i.e., is neutral).
In sum, the overlapping trade channels and customer classes favor Opposer, but
consumer sophistication and care is neutral.
d. Degree of strength of Opposer’s marks
The fifth likelihood-of-confusion factor is the “fame of the prior mark (sales,
advertising, length of use).” du Pont, 476 F.2d at 1361. Opposer argues that its “the
evidence shows that the KÜHL Marks have achieved … fame, particularly in the
clothing and more particularly the sportswear markets.”35
“Fame for purposes of likelihood of confusion is a matter of degree that varies
along a spectrum from very strong to very weak.” Coach Servs., 668 F.2d at 1367
(cleaned up; citations omitted). “A strong mark is more likely than a weak mark to be
remembered and more likely to be associated by the purchasing public with a greater
breadth of goods or services.” Tuxedo Monopoly, 648 F.2d at 1338 n.3 (citation
34 See 49 TTABVUE 44.
35 See id. at 46.

Opposition No. 91290865
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omitted). When a mark is “already known to the public,” consumers “tend to be more
readily confused” when they encounter a similar mark. Opryland USA Inc. v. Great
Am. Music Show, Inc., 970 F.2d 847, 851 (Fed. Cir. 1992) (citations omitted). As
exemplified by the three indicia of “fame” du Pont mentions (“sales, advertising,
length of use”), this factor concerns only “strength in the marketplace,” not conceptual
strength. Fuente Mktg., 172 F.4th at 1345 n.3 (citing Spireon, Inc. v. Flex Ltd., 71
F.4th 1355, 1362 (Fed. Cir. 2023)).
We assess the marketplace strength of a senior mark as to the specific products
offered under the mark at issue. See, e.g., Joseph Phelps Vineyards, LLC v. Fairmont
Holdings, LLC, 857 F.3d 1323, 1326 (Fed. Cir. 2017) (‘“fame’ is determined from the
viewpoint of consumers of like products”); Palm Bay Imps., 396 F.3d at 1375 (“a
mark’s renown within a specific product market is the proper standard”) (citation
omitted). While Opposer touts and sets forth (in confidential filings) growing and
quite substantial sales of apparel items from 2010-202436 (with the exception of
2020, the year that COVID significantly disrupted the economy), we are assessing
Registration No. 5931177 for water bottles. The only mention in Opposer’s
confidential brief of sales of water bottles (aggregating sales from 2020-2024) lists
sales revenue that amounts, by our back-of-the-envelope calculations, to less than
four one-thousandths of one percent (<0.004%) of the corresponding apparel sales
36 See 50 TTABVUE 19.

Opposition No. 91290865
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revenue.37 In other words, the sales figures for Opposer’s water bottles are just a drop
in the bucket compared to its apparel sales over the same period.
While Opposer also offers overall figures for its advertising and marketing
expenditures from 2010-2024, these figures are not, in any way that we can discern,
broken down in any way by the goods in the various registrations asserted.38
Opposer’s brief does not direct us to any advertisements, social media posts, or third-
party publicity directed, in whole or in part, to its water bottles. This is problematic
under the fifth factor because, in light of how Opposer’s apparel sales dwarf its water
bottle sales, we have no way of determining, without speculating, to what extent
Opposer’s effort to publicize the (mostly apparel) products it sells resulted in any
discernible degree of enhanced public recognition of KÜHL as a source for water
bottles, such as would assist Opposer on this factor. Cf. TAB Sys. v. PacTel Teletrac,
77 F.3d 1372, 1378 (Fed. Cir. 1996) (“Whether adequate proof was in fact available
but simply was not gathered and proffered by PacTel is not a subject on which we
can, should or do speculate. Rather, we must take the record as PacTel made it.”);
Acomb v. Polywood Plastics Corp., No. 91054738, 1975 WL 21253, at *3 (TTAB 1975)
(“Speculation and surmise is no substitute for evidence.”).
Finally, Opposer also touts its trademark enforcement efforts, submitting
(confidentially) many cease-and-desist letters it has sent to people and entities who
37 See id. at 18. Because Opposer filed all its sales- and advertising-related data
confidentially, we limit our discussion to relative proportions and do not list the yearly or
aggregate numbers.
38 See id. at 21-25.

Opposition No. 91290865
- 23 -
have used marks that Opposer believes are likely to be confused with its marks.39 But
Opposer does not direct us to any successful outcomes flowing from its letters or
proceedings directed to third parties selling water bottles.40 Thus, we cannot say to
what extent its enforcement efforts reflect the marketplace renown of the KÜHL
mark in Registration No. 5931177 for water bottles.
In sum, we find the fifth du Pont factor neutral as to the mark of Opposer’s
Registration No. 5931177.
e. The number and nature of similar marks in use on similar
goods
Under the sixth likelihood-of-confusion factor, an applicant may try to
demonstrate that a mark asserted as a bar to registration is weak by submitting
evidence of the nature and number of third-party “similar marks in use on similar
goods.” du Pont, 476 F.2d at 1361. Where there are a significant number of third-
party registrations for marks similar to the marks at issue and for similar goods, that
tends to show that the claimant’s mark may have a well-recognized descriptive or
suggestive connotation in that field, which means that the asserted mark is
conceptually weak. See, e.g., Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
1339 (Fed. Cir. 2015).
Here, Applicant’s brief asserts: “The sixth DuPont factor: numerous
‘COOL/KOOL/KUL’ marks on coolers/water bottles/clothing. Weakens scope.”41 But
39 See 35 TTABVUE 211-87.
40 See 49 TTABVUE 50; see also 34 TTABVUE 29-31 (Nathan Fay Decl.).
41 See 51 TTABVUE 28.

Opposition No. 91290865
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as Opposer points out in reply,42 Applicant cites no evidence to back up this assertion.
Unsupported, unsworn assertions in a brief are not evidence. See, e.g., Cai, 901 F.3d
at 1371 (“assertions of fact” in briefs are “not evidence under any of the relevant
rules”) (citation omitted); Peeler v. Miller, 535 F.2d 647, 654 (CCPA 1976) (“We will
not accept statements in briefs as substitutes for evidence.”).
The sixth factor is neutral.
f. The lack of evidence of actual confusion
The eighth factor listed in du Pont states: “The length of time during and
conditions under which there has been concurrent use without evidence of actual
confusion.” See 476 F.2d at 1361. Applicant asserts that this factor favors it because
there is no evidence of actual confusion.43
We note first that “[l]ack of evidence of actual confusion or mistake … does not
preclude a finding of likelihood of confusion.” In re Calgon Corp., 435 F.2d 596, 597
(CCPA 1971) (citations omitted). That is in part because “actual confusion is hard to
prove.” Sunkist Growers, Inc. v. Intrastate Distribs., Inc., 144 F.4th 1376, 1381 (Fed.
Cir. 2025) (citations omitted). To determine how much weight, if any, to give to the
lack of evidence of any instances of actual consumer confusion, we look to evidence in
the record of actual market conditions surrounding the parties’ concurrent use. See,
e.g., In re Guild Mortg. Co., No. 86709944, 2020 WL 1639916, at *8 (TTAB 2020). The
absence of any reported instances of confusion is meaningful only if the record
42 See 52 TTABVUE 18.
43 See 51 TTABVUE 28.

Opposition No. 91290865
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indicates appreciable and continuous use by Applicant of its mark for a significant
period in the same markets as those served by Opposer under its mark. Citigroup,
Inc. v. Cap. City Bank Grp., Inc., No. 91177415, 2010 WL 595586, at *17 (TTAB 2010),
aff’d, 637 F.3d 1344 (Fed. Cir. 2011); Gillette Can. Inc. v. Ranir Corp., No. 91082769,
1992 WL 215312, at *6 (TTAB 1992). In other words, for the absence of actual
confusion to be probative, there must have been a reasonable opportunity for
confusion to have occurred. See Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333,
1338 (Fed. Cir. 2001) (fact of no evidence of actual confusion discounted due to
absence of evidence of length of time and circumstances the parties’ goods under
respective marks were sold); Barbara’s Bakery Inc. v. Landesman, No. 91157982,
2007 WL 196406, at *5 (TTAB 2007) (same).
While the declaration of Applicant’s founder states that he has worked at every
hunting and fishing show at which Applicant has displayed its cooler products and
yet has never encountered an actually-confused person,44 Applicant directs us to no
evidence of Opposer’s use of its mark for water bottles such that we can determine
whether there was any appreciable opportunity for actual confusion to have
developed. We therefore find this factor to be neutral.
g. The variety of goods on which a senior user’s mark is used
The ninth factor listed in du Pont is “[t]he variety of goods on which a mark is or
is not used (house mark, ‘family’ mark, product mark)” where there is evidence of
record bearing on this factor. 476 F.2d at 1361. Opposer asserts that its mark is a
44 See 46 TTABVUE 7-8.

Opposition No. 91290865
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“house” mark and a “family” mark, so this factor should favor it.45 In cases where
there is insufficient evidence that the goods are unrelated (the second du Pont factor),
the ninth factor may, to an extent, counteract that fact and provide support for a
conclusion that confusion is nevertheless likely because the senior party is known to
offer a wide array of products. But we typically find no need to rely on this factor
where, as here, there is plentiful evidence—and we have found—that the specific
goods at issue are related. See, e.g., Iron Balls Int’l Ltd. v. Bull Creek Brewing, LLC,
No. 92079099, 2024 WL 2844425, at *26 (TTAB 2024); Monster Energy Co. v. Lo, No.
91225050, 2023 WL 417620, at *19 (TTAB 2023); Made in Nature, 2022 WL 2188890,
at *31-32. We therefore see no need, in this case, to delve into this factor. See generally
Coach Servs., 668 F.3d at 1366 (“only factors of significance to the particular mark
need be considered”) (citation omitted).
h. The market interface between the parties
The tenth likelihood-of-confusion factor looks at the “market interface” between
the two parties. du Pont, 476 F.2d at 1361 (giving examples of the types of
circumstances that might inform this factor). Both parties’ briefs contain conclusory
assertions about this factor, with Opposer saying the factor favors it,46 and Applicant
saying it’s neutral.47 Opposer points to no evidence supporting its position, so we
agree with Applicant that it is neutral.
45 See 49 TTABVUE 52-54.
46 See 49 TTABVUE 54.
47 See 51 TTABVUE 29.

Opposition No. 91290865
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i. The extent to which applicant has a right to exclude others
from use of its mark on its goods
The eleventh factor considers “the extent to which applicant has a right to exclude
others from use of its mark on its goods.” du Pont, 476 F.2d at 1361. Applicant argues,
in toto: “Tenth DuPont factor: Applicant’s use since 2023 establishes rights.” We find
this conclusory argument insufficient to tilt the eleventh factor Applicant’s way.
Under the Trademark Act, any person using a distinctive trademark has the right to
undertake to exclude others from using similar marks in ways that are likely to cause
confusion, i.e., to pursue lawsuits for infringement. See, e.g., 15 U.S.C. § 1114(1)
(registered marks); 15 U.S.C. § 1125(a)(1) (common-law trademarks). Thus, if mere
prior use is what this factor is getting at, it would automatically favor applicants with
use-based applications in oppositions. Generally, however, we look for more under
this factor, such as evidence as to “whether the applicant had achieved ‘an
appreciable level of consumer recognition’ and/or whether the applicant could
demonstrate having ‘successfully asserted its [trademark] rights.’” Monster Energy,
2023 WL 417620, at *21 (quoting McDonald’s Corp. v. McSweet, LLC, No. 91178758,
2014 WL 5282256, at *17 (TTAB 2014)) (further citation omitted). Here, Applicant
provides no evidence of either, resting its argument on the simple fact of prior use.
We find the eleventh factor neutral.
j. The extent of potential confusion, i.e., whether de minimis or
substantial
The twelfth factor considers “[t]he extent of potential confusion, i.e., whether de
minimis or substantial.” du Pont, 476 F.2d at 1361. Opposer argues that its “goods

Opposition No. 91290865
- 28 -
are marketed to and purchased by members of the general public.”48 Opposer doesn’t
differentiate between apparel and water bottles, but it is clear that both are common
types of everyday consumer goods. So are portable coolers. Where, as here, both
parties’ products “are the type of goods that would be marketed to and purchased by
significant numbers of purchasers,” this factor will count a bit in favor of a conclusion
that confusion is likely. See In re Davey Prods. Pty Ltd., No. 77029776, 2009 WL
2420527, at *9 (TTAB 2009) (rejecting an applicant’s twelfth-factor argument that
the potential for confusion is “de minimis” because “the goods involved here are the
type of goods that would be marketed to and purchased by significant numbers of
purchasers).
k. Weighing all our findings on the relevant likelihood-of-
confusion factors together
As we mentioned earlier, the last step in analyzing a claim under Section 2(d) is
to balance all the findings on the relevant factors to determine whether confusion is
likely or unlikely. Fuente Mktg., 172 F.4th at 1347; Citigroup, 637 F.3d at 1349. In
doing so, we must “weigh the DuPont factors used in [our] analysis” and explain “the
results of that weighing,” including “the weight [we] assigned to the relevant factors.”
Charger Ventures, 64 F.4th at 1383-84 (citation omitted). In this ultimate step of the
Section 2(d) analysis, we don’t just count the number of factors on each side of the
scale. See, e.g., Citigroup, 637 F.3d at 1356 (“Citigroup’s approach of mechanically
tallying the DuPont factors addressed is improper, as the factors have differing
48 See 49 TTABVUE 54.

Opposition No. 91290865
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weights.”). “The weight given to each factor depends on the circumstances of each
case.” Charger Ventures, 64 F.4th at 1381 (citation omitted).
Here, all of the non-neutral factors favor Opposer. We found that the marks KÜHL
and are similar. We also found that the evidence demonstrates that
the respective goods in the application and the goods in Registration No. 5931177 are
closely related.49 These are important factors. See, e.g., Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976) (“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.”) (emphases added); In re
Max Cap. Grp. Ltd., No. 77186166, 2010 WL 22358, at *1 (TTAB 2010) (“In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the goods and/or services.”) (citations
omitted).
Based on abundant evidence, we further found that the respective goods in the
application and in Registration No. 5931177 are offered in overlapping trade channels
to overlapping classes of customers. And due to water bottles and portable coolers
being common consumer products, the twelfth du Pont factor adds a grain of sand or
two to Opposer’s side of the scale.
49 We saw no need to assess whether, under the ninth du Pont factor, KÜHL is a house
mark or “family” mark, because we already found that the goods are closely related.

Opposition No. 91290865
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With nothing counterbalancing the findings weighing on Opposer’s side of the
scale, we conclude, under Section 2(d), that Applicant’s mark is likely to cause
confusion in view of Opposer’s Registration No. 5931177.
B. Opposer’s remaining Section 2(d) claims and its Section
43(c) claim
Because our determination that Opposer should prevail on its Section 2(d) claim
as to Registration No. 5931177 itself requires the application to be refused, we decline
to reach Opposer’s Section 2(d) claims as to its other asserted registrations and its
Section 43(c) dilution claim. See, e.g., Sage Therapeutics, Inc. v. Sageforth Psych.
Servs., LLC, No. 91270181, 2024 WL 1638376, at *2 (TTAB 2024).
Decision: We sustain the Notice of Opposition under Section 2(d) on the basis of
Opposer’s Registration No. 5931177.