Free-Free(USA) Inc. and Free-Free Industrial Corp.

This opinion is not a
precedent of the TTAB
Mailed: January 16, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Free-Free(USA) Inc. and Free-Free Industrial Corp.
_____
Serial No. 98518085
_____
Roman Campos of Muncy, Geissler, Olds & Lowe, PC,
for Free-Free(USA) Inc. and Free-Free Industrial Corp.
Tarah Hardy Ludlow, Trademark Examining Attorney, Law Office 110,
Loksye Lee Riso, Managing Attorney.
_____
Before Lebow, Casagrande, and Brock,
Administrative Trademark Judges.
Opinion by Casagrande, Administrative Trademark Judge:
Free-Free(USA) Inc. and Free-Free Industrial Corp. (collectively, “Applicants”)
jointly seek registration on the Principal Register of the standard-character mark
VAC-TITE for the following goods, all in International Class 21:
Bath accessories, namely, shower caddies; Tableware and
kitchenware, namely, non-electric portable beverage coolers,
beverageware, coolers for wine, cocktail and wine shakers,
canister sets, spice shakers, salad bowls, goblets, punch bowls and
cups, acrylic insulation jars and all purpose household acrylic jars

Serial No. 98518085
- 2 -
used to store dry food goods such as cereal, chips, pasta, sugar,
cookies, flour, bagels.1
The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), due to likelihood of confusion with two marks,
both registered on the Principal Register and owned by the same registrant:
• TIGHTVAC, in standard-character format, for “Kitchen containers” in
International Class 21;2 and
• for “Portable airtight plastic storage
containers for storing household or kitchen goods or food that feature a
vacuum seal created as air is sucked out when the cap is pushed down,” in
International Class 21.3
After the Examining Attorney made the refusal final,4 Applicants appealed5 and
requested reconsideration.6 We suspended the appeal and remanded the application
1 Application Serial No. 98518085 was filed on April 24, 2024, under Section 1(a) of the
Trademark Act of 1946, 15 U.S.C. § 1051(a), claiming a date of first use anywhere and in
commerce of March 1, 2024.
2 Reg. No. 5550395 (the ’395 or “standard-character” registration) issued on August 28,
2018; maintained.
3 Reg. No. 3172540 issued on November 14, 2006; renewed. The literal elements of the mark
are “TIGHTPAC TightVac.” Color is not claimed as a feature of the mark.
4 See Jan. 17, 2025, Final Office Action. Citations in this opinion to the application record
refer to the version of the record downloaded in .pdf format from the Trademark Status and
Document Retrieval (TSDR) database of the United States Patent and Trademark Office
(USPTO).
5 See 1 TTABVUE. References to the briefs and appeal record cite to the Board’s TTABVUE
electronic docket system. The number preceding “TTABVUE” represents the docket number
assigned to the cited filing in TTABVUE and any number immediately following “TTABVUE”
identifies the specifically-cited page(s), if any.
6 See May 15, 2025, Request for Reconsideration.

Serial No. 98518085
- 3 -
to the Examining Attorney to consider the request for reconsideration.7 The
Examining Attorney denied reconsideration,8 after which the appeal resumed.9
Applicants filed a brief,10 as did the Examining Attorney.11 The case is now ready for
decision. For the reasons explained below, we affirm the refusal to register.
Before we begin the substantive Section 2(d) analysis, we note that, compared to
the cited TIGHTVAC standard-character mark, the mark
has additional points of distinction from Applicants’ mark; namely, it has an
additional word (TIGHTPAC); employs two stylized typefaces, and contains a design
element. As to goods, its identified goods are encompassed within the broader
category identified in the standard-character registration (kitchen containers). If we
conclude that confusion is likely in view of the standard character mark registration,
the application will stand refused irrespective of the registration for
. If we conclude that confusion is unlikely in view of the
standard character registration, then confusion is even less likely as to
7 See 2 TTABVUE.
8 See 4 TTABVUE.
9 See 5 TTABVUE.
10 See 6 TTABVUE.
11 See 8 TTABVUE.

Serial No. 98518085
- 4 -
. See, e.g., In re Morinaga Nyugyo K.K., No. 86338392,
2016 WL 5219811, at *3 (TTAB 2016); In re Max Cap. Grp. Ltd., No. 77186166, 2010
WL 22358, at *2 (TTAB 2010). We therefore don’t see a need to address the refusal to
the extent it is based on the latter mark.
ANALYSIS
A. Section 2(d) refusals generally
Section 2(d) of the Trademark Act 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, or
to cause mistake, or to deceive.” 15 U.S.C. § 1052(d). We determine whether confusion
is likely by analyzing all probative facts in evidence relevant to the likelihood -of-
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
1361 (CCPA 1973). See, e.g., In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed.
Cir. 2023). Though du Pont lists thirteen numbered factors, 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. Houston
Computer Servs., Inc., 918 F.2d 937, 943 (Fed. Cir. 1990). Typically, those are the
factors that the parties address and on which there is 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). After

Serial No. 98518085
- 5 -
making findings on the relevant factors, we then weigh them together to determine
if, on balance, they indicate that confusion is likely. See, e.g., Charger Ventures, 64
F.4th at 1381; In re Majestic Distilling Co., 315 F.3d 1311, 1319 (Fed. Cir. 2003).
B. Comparison of the marks
The factor we begin with is “[t]he similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and commercial impression.” du Pont,
476 F.2d at 1371. Similarity in all four aspects is not required, however, for this factor
to support a refusal. See, e.g., 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); see also Beacon-Morris Corp. v. Int’l Tel. & Tel. Corp., 463 F.2d
1097, 1098, (CCPA 1972) (confusion likely as between DUO-FLO and TWIN FLO
because of similar meaning notwithstanding differences in appearance and sound);
Krim-Ko Corp. v. Coca-Cola Bottling 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).
We compare marks in their entireties, see, e.g., Oakville Hills Cellar, Inc. v.
Georgallis Holdings, LLC, 826 F.3d 1376, 1380 (Fed. Cir. 2016), not 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 their
memories are 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).

Serial No. 98518085
- 6 -
We also keep in mind that “[s]imilarity 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.” In re i.am.symbolic, llc, 866 F.3d 1315, 1323 (citation omitted);
see also Phillips Petroleum Co. v. Knox Indus. Corp., 277 F.2d 945, 947 (CCPA 1960)
(“This issue is whether the marks are confusingly similar, not whether they are
identical.”) (citation omitted).
Here, Applicants’ mark is VAC-TITE and the mark of the cited standard-character
registration is TIGHTVAC. Both comprise two component terms. In Applicants’
mark, they are “vac” and “tite.” In the registered mark, they are “vac” and “tight.”
Applicants acknowledge that “vac” is a “shortened form of ‘vacuum’” and that “tite” is
“a phonetic variant of ‘tight,’ commonly used in product branding.”12 Thus, the literal
elements of the two marks are phonetically and meaning-wise the same, although in
reversed order. There is, of course, no per se rule that marks that are reverse
combinations of the same literal elements will necessarily result in a likelihood of
confusion. It depends on the words themselves and other circumstances that might
bear on the marks’ respective commercial impressions. See, e.g., In re Sybron Corp.,
1970 WL 9907, at *2 (TTAB 1970) (“[T]he fact that two marks are reverse
combinations of the same words is not necessarily conclusive on the question of
likelihood of confusion, and registration has been permitted in those instances where
12 See 6 TTABVUE 9.

Serial No. 98518085
- 7 -
the transposed marks create distinctly different commercial impressions.”) (citations
omitted).13
Applicants urge that “the reversal of elements, from TIGHT-VAC (sic) to VAC-
TITE, along with the hyphenation and descriptive quality of Applicants’ mark,
significantly alter the commercial impression” of Applicants’ mark from that of
TIGHTVAC.14 We don’t see any evidence of that. First, there is nothing in the record
indicating that the hyphen in Applicants’ mark plays any role in the overall
commercial impression of the mark. See, e.g., Autogroom Co. v. Boyle-Midway Inc.,
173 F.2d 1022, 1023 (CCPA 1949) (“Both of the expressions, ‘Aero-Groom’ and
‘Aerowax,’ are marks composed of dictionary terms of the English language. We do
not think it is of substantial moment that the ‘aero’ expression in appellant’s mark is
hyphenated with the word ‘groom’ and that no hyphen appears in the mark of
appellee between ‘aero’ and ‘wax.’”); Mini Melts, Inc. v. Reckitt Benckiser LLC, No.
13 Compare Carlisle Chem. Works, Inc. v. Hardman & Holden, 434 F.2d 1403, 1406 (CCPA
1970) (finding that, for related goods, the marks COZIRC and ZIRCO “are substantially
similar, the difference being in a reversal of syllables which are essentially the same”); Bakers
Franchise Corp. v. Royal Crown Cola Co., 404 F.2d 985, 986 (CCPA 1969) (agreeing with the
Board that RITE DIET for milk and DIET-RITE for soft drinks “create substantially the same
commercial impressions”; confusion held likely); Made In Nature, LLC v. Pharmavite LLC,
No. 91223352, 2022 WL 2188890, at *21 (TTAB 2022) (MADE IN NATURE and NATURE
MADE convey similar impressions); Sybron Corp., 1970 WL 9907, at *2 (VACUUM AIRE and
AIRVAC confusingly similar for overlapping dental equipment), with Carefirst of Md., Inc. v.
FirstHealth of the Carolinas Inc., No. 91116355, 2005 WL 2451671, at *19 (TTAB 2005)
(“[W]e find that the marks CAREFIRST and FIRSTCAROLINACARE differ in overall
commercial impression. Although the marks share the terms ‘care’ and ‘first,’ the terms
appear in reverse order; when these terms are reversed and combined with the term
‘Carolina’ in between, applicant’s mark engenders an overall commercial impression different
from opposer’s.”) (citation and footnote omitted), appeal dismissed, 171 F. App’x 838 (Fed.
Cir. 2006). We note that a later Federal Circuit decision affirmed the Board’s ruling on an
unrelated aspect of the Carefirst case. See 479 F.3d 825 (Fed. Cir. 2007).
14 See 6 TTABVUE 10.

Serial No. 98518085
- 8 -
91173963, 2016 WL 3915987, at *5 (TTAB 2016) (“the hyphen in Applicant’s mark
MINI-MELTS does not distinguish it from Opposer’s [MINI MELTS] mark”)
(citations omitted).
Moreover, Applicants acknowledge that their mark “communicates a descriptive
or suggestive meaning: a container or closure that seals tightly with vacuum
action.”15 And, in urging the Examining Attorney to reconsider the refusal, they
acknowledged that “TIGHTVAC immediately conveys the nature of the registrant’s
vacuum-sealed kitchen containers.”16 Indeed, Applicants submitted exemplars of
their advertisements during prosecution, which emphasize that Applicants’ container
products have a “vacuum seal” that is “airtight.”17
Thus, while the transposition of the two literal elements results in marks that are
somewhat different-sounding, they look similar and have essentially identical
connotations. Overall, their commercial impressions are highly similar, if not
identical. This factor will weigh in favor of a conclusion that confusion is likely when
we perform our weighing of the factor-findings.
15 See id.
16 See May 15, 2025, Reconsideration Request, at TSDR 7; see also 6 TTABVUE 15
(acknowledging that, in the marks of the cited registrations, “‘VAC’ is an abbreviation for
vacuum” and that “TIGHTVAC and TIGHTPAC TIGHTVAC convey the basic functional
purpose of the product—namely, vacuum-sealed or airtight storage.”).
17 See Jan. 16, 2025, Response to Nonfinal Office Action, at TSDR 7-9. These advertisements
beg the question, why didn’t the Examining Attorney issue a refusal in the alternative for
mere descriptiveness under Section 2(e)(1), 15 U.S.C. § 1052(e)(1)?

Serial No. 98518085
- 9 -
C. Comparison of the goods
The goods in the ’395 registration are “Kitchen containers,” a relatively broad
category that includes some of Applicants’ more specifically-identified goods, such as
“canister sets”18 and “household acrylic jars used to store dry food goods.”19 Where
one or more of an applicant’s goods are encompassed within a broader identification
in the cited registration (or vice versa), the goods are legally identical in-part. See,
e.g., Int’l Paper Co. v. Valley Paper Co., 468 F.2d 937, 938 (CCPA 1972) (where
“registration description is broad enough to cover the goods [of the applicant], … the
legal effect of this fact is that the goods and channels of trade are to be considered the
same for the purposes of this opposition”); accord Hunt Foods & Indus., Inc. v.
Anderson, Clayton & Co., 353 F.2d 250, 251 (CCPA 1965); In re Medline Indus., Inc.,
No. 87680078, 2020 WL 1485709, at *5 (TTAB 2020); In re Fat Boys Water Sports
LLC, No. 86490930, 2016 WL 3915986, at *10 (TTAB 2016); In re Hitachi High-Techs.
Corp., No. 79110412, 2014 WL 879500, at *4 (TTAB 2014).
Applicants urge that it is an oversimplification to consider the goods legally
identical.20 They contend that their goods are marketed “under the Felli® brand,” are
18 We take judicial notice that one of the definitions of “canister” in the COLLINS DICTIONARY
is “a metal, plastic, or china container with a lid. It is used for storing food such as sugar and
flour.” https://www.collinsdictionary.com/us/dictionary/english/canister (checked Jan. 12,
2026). See, e.g., B.V.D. Licensing Corp. v. Body Action Design, Inc., 846 F.2d 727, 728 (Fed.
Cir.1988) (tribunals may take judicial notice of dictionaries and encyclopedias); Hancock v.
Am. Steel & Wire Co., 203 F.2d 737, 740 (CCPA 1953) (same).
19 The MERRIAM-WEBSTER DICTIONARY defines “jar” as meaning “a widemouthed container
made typically of earthenware or glass.” https://www.merriam-webster.com/dictionary/jar
(checked Jan. 12, 2026).
20 See 6 TTABVUE 12-14.

Serial No. 98518085
- 10 -
elegant looking, and are sold through “mainstream home and kitchen retailers.”21
Goods under the registered mark, according to Applicants, are , in contrast,
“utilitarian storage devices often targeted toward niche consumers needing smell -
proof or discrete containment, sometimes in counterculture contexts.”22
In the context of an ex parte application, we cannot accept Applicants’ arguments.
“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.” In re
Detroit Athl. Co., 903 F.3d 1297, 1307 (Fed. Cir. 2018) (citation omitted); see also, e.g.,
Stone Lion Cap. Partners v. Lion Cap. LLP, 746 F.3d 1317, 1323-24 (Fed. Cir. 2014)
(disregarding arguments about currently-targeted customer classes); In re Shell Oil
Co., 992 F.2d 1204, 1208 n.4 (Fed. Cir. 1993) (disregarding argument about use of
other Shell trademarks along with the mark at issue). Here, both Applicants’
application and the cited registration lack any restrictions on what their respective
goods look like or who they may be sold to. Present limitations of business practices,
whatever they may or may not be,23 do not limit a registrant and are subject to change
without notice. See, e.g., Can. Imperial Bank of Com. v. Wells Fargo Bank, Nat’l Ass’n,
811 F.2d 1490, 1492-93 (Fed. Cir. 1987); CBS Inc. v. Morrow, 708 F.2d 1579, 1581
21 See id. at 13. Obviously, “FELLI” is not part of the mark at issue.
22 See id.
23 Applicants’ statements in their brief about these current market practices are not
evidence. See, e.g., In re Simulations Publ’ns, Inc., 521 F.2d 797, 798 (CCPA 1975)
(“Statements in a brief cannot take the place of evidence.”) (citation omitted); In re Burndy
Corp., 300 F.2d 938, 940 (CCPA 1962) (“A brief cannot take the place of proof and in its
absence we disregard all such factual assertions where they are not matters of such common
knowledge that we can take judicial notice of them.”). So even if we could consider these
current market practices, there is no evidence of them for us to consider.

Serial No. 98518085
- 11 -
(Fed. Cir. 1983); Broderick & Bascom Rope Co. v. Goodyear Tire & Rubber Co., 531
F.2d 1068, 1070 (CCPA 1976); Hunt Foods, 353 F.2d at 251.
An application must be refused if there is likelihood of confusion even as to one
listed good. See, e.g., SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir. 1983);
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981); In
re Info. Builders Inc., No. 87753964, 2020 WL 2094122, at *3 (TTAB 2020). Here, in
view of the fact that at least two of the goods listed in the application are legally
identical to “kitchen containers,” we need not address whether any of the other
specific goods listed in the application are legally identical, similar, or otherwise
related to “kitchen containers.” See, e.g., Shunk Mfg. Co. v. Tarrant Mfg. Co., 318 F.2d
328, 330 (CCPA 1963) (“the board properly held that where there is likelihood of
confusion as to any of the goods listed in the application, it is not necessary to rule on
other goods listed therein”).
In view of the partial legal identity of the goods, at the final weighing, the second
du Pont factor will support a conclusion that confusion is likely.
D. Comparison of the trade channels and classes of customers
Two more factors we consider are “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels,” du Pont, 476 F.2d at 1361, and the “buyers to
whom sales are made,” id. The Examining Attorney points out that neither the
application nor the standard-character registration have any limitation on trade
channels or classes of customers. In the absence of any such limitations, trademark
law presumes that legally-identical goods will be made available to the same classes

Serial No. 98518085
- 12 -
of customers through the same trade channels. See In re Yawata Iron & Steel Co., 403
F.2d 752, 754 (CCPA 1968) (where “legally identical goods,” channels of trade and
classes of purchasers considered to be the same); see also Detroit Athl. Co., 903 F.3d
at 1308; i.am.symbolic, 866 F.3d at 1327.
In addition, there is evidence in the record that several third-parties offer kitchen
containers of several types online to the public generally, including The Container
Store;24 Webstaurant Store;25 Crate & Barrel;26 Bed Bath & Beyond;27 Sur La Table;28
and Everything Kitchens.29 Applicants argue that “[t]he Examining Attorney
provided no evidence that the specific goods—VAC-TITE kitchenware and
TIGHTVAC smell-proof storage tubes—are sold side-by-side ….”30 But this factor
does not assess whether the parties’ respective goods are sold in the same stores or
store chains, but looks at the “type of distribution channel.” Century 21 Real Estate
Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992). The evidence here
shows that the type of goods identified in the standard-character registration and
application are sold by several retailers to the public generally. “This overlap in trade
24 Jan. 17, 2025, Final Office Action, at TSDR 33-49; May 26, 2025, Denial of
Reconsideration, at TSDR 77-113, 453-56.
25 Jan. 17, 2025, Final Office Action, at 69-84.
26 May 26, 2025, Denial of Reconsideration, at TSDR 115-206.
27 Id. at 283-370.
28 Id. at 374-98.
29 Id. at 399-451.
30 See 6 TTABVUE 14.

Serial No. 98518085
- 13 -
channels and class of purchasers bolsters the likelihood of confusion.” Herbko Int’l,
Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1166 (Fed. Cir. 2002).
E. Effect of the prior registrations owned by one of the Applicants
Applicants argue that, in view of its prior registrations for the marks FLIP-TITE
and DATE-TITE, “the refusal is barred by the Morehouse defense.”31 The Morehouse
defense does not apply in this proceeding:
The Morehouse defense is an equitable affirmative defense which,
in appropriate circumstances, may be asserted by a
defendant/applicant in an inter partes proceeding. It is based on
the principle that an opposer cannot be damaged within the
meaning of Lanham Act §13 by registration of a mark for
particular goods or services if applicant owns an existing
registration for the same or substantially identical mark
for the same or substantially identical goods. This defense does
not apply in an ex parte context.
In re Strategic Partners, Inc., No. 77903451, 2012 WL 1267930, at *3 (TTAB 2012)
(emphasis added; cleaned up; citations omitted).
While a Morehouse defense doesn’t apply in this ex parte context, Strategic
Partners also made clear that we may consider—under du Pont’s thirteenth factor,
476 F.2d at 1361—whether an applicant’s ownership of one or more prior
registrations may bear on the likelihood of confusion. We will therefore consider
Applicants’ argument, not as a “Morehouse defense,” but under the framework
established in Strategic Partners.
31 See 6 TTABVUE 11-12. The “Morehouse” defense is named after Morehouse Mfg. Corp. v.
J. Strickland and Co., 407 F.2d 881 (CCPA 1969).

Serial No. 98518085
- 14 -
In Strategic Partners, the applicant’s mark was for footwear and
the cited registration was for clothing items. Id. at *1. In
Strategic Partners, the marks were found to be similar, the goods related, and the
trade channels and classes of customers overlapping. See id. at *2. We observed that,
based on those findings, “[w]e would conclude, under usual circumstances, that
confusion is likely to occur among consumers in the marketplace.” Id.
But in Strategic Partners we then considered that the applicant owned an existing
registration for ANYWEARS (in standard characters) for footwear. Id. at *3. We
observed that the applicant’s existing registration was for a mark nearly identical to
the one in the application32 and that the goods were the same. Id. Finally, we observed
that the applicant’s registration and the registration now cited against the applicant
had been on the Register together for over 5 years, which meant that the applicant’s
prior registration was no longer “subject to attack by the owner of the cited
registration on a claim of priority and likelihood of confusion.” Id. We found that
“these facts tip the scale in favor of applicant and a finding of no likelihood of
confusion.” Id.
Applicants here point us to:
• U.S. Reg. No. 4102140 for FLIP-TITE (standard characters), owned by
Applicant Free-Free Industrial Corp., registered February 21, 2012, for
32 We noted that, as a standard-character mark, the previously-registered mark covered all
typefaces, including the one in the application at issue, and the added plural “S” was not a
material difference. See id.

Serial No. 98518085
- 15 -
“containers for household or kitchen use; cookie jars; kitchen containers”;33
and
• U.S. Reg. No. 5047276 for DATE-TITE (standard characters), registered
September 27, 2016, owned by Applicant Free-Free Industrial Corp., for
“kitchenware, namely, a canister set consisting of plastic food storage
canisters with a tight lid lock to keep contents fresh and healthy.”34
What is immediately apparent is that, unlike the prior registration in Strategic
Partners, the marks in these prior registrations are not “substantially similar” to
VAC-TITE. Yes, they end in “-TITE.” But they do not begin with “VAC” or anything
like “VAC.” That is important in the context of this appeal, because the cited
standard-character registration has the term “VAC” in it, in addition to “TIGHT.” The
coexistence of two prior registrations for marks much farther from the cited
registration TIGHTVAC simply does not bear, in any material way, on whether the
much closer mark VAC-TITE is likely to cause confusion.35
Thus, the thirteenth factor is neutral.
33 See 6 TTABVUE 12 (TSDR status and ownership documents at Jan. 16, 2025, Response
to Nonfinal Office Action, at TSDR 47-48).
34 See id. (TSDR status and ownership documents at Jan. 16, 2025, Response to Nonfinal
Office Action, at TSDR 51-52).
35 Applicants also assert that they own (or perhaps only one of them owns) a “family” of
marks that end in “-TITE.” At the threshold, an applicant’s alleged ownership of a “family of
marks” is “not available to an applicant seeking to overcome a likelihood-of-confusion
refusal.” In re Cynosure, Inc., No. 76653359, 2009 WL 1268438, at *2 (TTAB 2009) (citation
omitted). But even if we were to consider this argument, “[t]he mere existence of a number
of registrations containing a particular term does not make it a ‘family.’” In re 3com Corp.,
No. 74495184, 2000 WL 1182872, at *4 (TTAB 2000)); see also J & J Snack Foods Corp. v.
McDonald’s Corp., 932 F.2d 1460, 1462 (Fed. Cir.1991) (“Simply using a series of similar
marks does not of itself establish the existence of a family.”). Applicants point us to no
evidence of record that the public “public recognizes that the common characteristic is
indicative of a common origin of the goods.” Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d
1333, 1336 (Fed. Cir. 2001) (citing J & J Snack Foods, 932 F.2d at 1462).

Serial No. 98518085
- 16 -
F. Alleged weakness of the cited mark TIGHTVAC
When there is pertinent evidence of record on the point, we consider “[t]he number
and nature of similar marks in use on similar goods.” du Pont, 476 F.2d at 1361.
“[S]ufficient evidence of third-party use of similar marks can show that customers ...
have been educated to distinguish between different ... marks on the basis of minute
distinctions.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1338 (Fed. Cir.
2015) (cleaned up; citations omitted). In other words, it could show that the cited
mark is weak, and the weaker the mark cited against an application, “the closer an
applicant’s mark can come without causing a likelihood of confusion and thereby
invading what amounts to its comparatively narrower range of protection.” Id.
(citations omitted).
Applicants here argue that “[t]he record contains numerous examples of other
storage and container brands using these common elements, such as: EZ-TITE,
GRIP-TITE, LOCK-TITE, VACPAC, [and] VAC-LOCK.”36 Applicants, however, do
not say where, if anywhere, in the record, this evidence may be. “It is not the function
of the Board to scour the record in search of facts or evidence to support a party’s
position.” DC Comics v. Cellular Nerd LLC, No. 91246950, 2022 WL 17832492, at *18
n.81 (TTAB 2022); see also Trademark Rule 2.142(b)(3), 37 C.F.R. § 2.142(b)(3)
(“Citation to evidence in briefs should be to the documents in the electronic record for
the subject application or registration by date, the name of the paper under which
the evidence was submitted, and the page number in the electronic record.”). Even
36 See 6 TTABVUE 15-16.

Serial No. 98518085
- 17 -
assuming this evidence exists somewhere in the record, three marks with one of the
common elements and two marks with the other element is a paltry showing.
This factor is neutral.
G. Alleged lack of actual confusion
du Pont lists “[t]he length of time during and conditions under which there has
been concurrent use without evidence of actual confusion” as a potentially relevant
consideration. 476 F.2d at 1371. Applicants argue that “there is no evidence of actual
confusion between Applicants’ VAC-TITE mark and the cited TIGHTVAC or
TIGHTPAC TIGHTVAC marks, even though Applicant (sic) and Registrant have
both been operating in the same general product space for years.”37 But du Pont
prefaces its list of factors with the statement “the following, when of record, must
be considered ….” Id. (emphasis added). While Applicants’ brief points out that there
is no evidence of actual confusion, a statement in a brief is not itself evidence. See,
e.g., Simulations Publ’ns, 521 F.2d at 798; Burndy Corp., 300 F.2d at 940. There is,
for example, no declaration in the record attesting to Applicants’ lack of knowledge of
any instances of actual confusion.
Further, “[l]ack of evidence of actual confusion or mistake, of course, does not
preclude a finding of likelihood of confusion.” In re Calgon Corp., 435 F.2d 596, 597
(CCPA 1971). Even if there were a probative declaration in the record, we’d still be
getting only half the story, because the registrant is not a party to this case. See, e.g.,
In re Guild Mortg. Co., No. 86709944, 2020 WL 1639916, at *9 (TTAB 2020); In re
37 See 6 TTABVUE 17.

Serial No. 98518085
- 18 -
Inspection Tech. Inc., No. 73287613, 1984 WL 62802, at *2 (TTAB 1984). “Moreover,
for the Examining Attorney to attempt to show actual confusion … would be an
impossible undertaking.” Inspection Tech., 1984 WL 62802, at *2; see generally In re
Pacer Tech., 338 F.3d 1348, 1352 (Fed. Cir. 2003) (the USPTO “is an agency of limited
resources” and “cannot be expected to shoulder the burden of conducting market
research”) (citations omitted).
Finally, we note that this factor “requires us to look at actual market conditions,
to the extent there is evidence of such conditions of record.” Guild Mortgage, 2020 WL
1639916, at *8. But, as we pointed out earlier, Applicants’ statements about the
actual market conditions are largely statements in their brief, which are not evidence.
Thus, there isn’t enough evidence in the record for us to infer from the market
conditions that the lack of any instances of actual confusion (assuming that there had
been some evidence in the record that Applicants were unaware of any such
instances) should play a significant role in our calculus.
This factor is neutral.
H. Weighing the findings on the relevant factors together
Having made findings on all the relevant likelihood-of-confusion factors as
concerns the standard-character registration, our final step is to assess these findings
together to determine if, on balance, confusion is likely. See, e.g., Charger Ventures,
64 F.4th at 1384.
Here, all the relevant factors either weigh in favor of a conclusion that confusion
is likely or are neutral. With no factors weighing in favor of the opposite conclusion,

Serial No. 98518085
- 19 -
we have no difficulty concluding that confusion is likely as to the standard-character
registration.
Decision: The refusal to register Applicants’ mark is affirmed.