Bayou Pumps & Products Inc

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: January 27, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Bayou Pumps & Products Inc.
_____
Serial No. 88057994
_____
Francis John Ciaramella of Francis John Ciaramella, PLLC,
for Bayou Pumps & Products Inc.
Paul Moreno, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.
_____
Before Allard, Cohen, and Lavache, Administrative Trademark Judges.
Opinion by Allard, Administrative Trademark Judge:
Bayou Pumps & Products Inc (“Applicant”) seeks registration on the Principal
Register of the mark TESLA DISK PUMPS (in standard characters, “DISK PUMPS”
disclaimed) for “pumps for machines,” in International Class 7.1
Registration was refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s mark, as used in connection with the goods
1 Application Serial No. 88057994 was filed on July 30, 2018, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s allegation of use anywhere and in
commerce as of January 1, 2012.

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indicated above, so resembles the mark registered on the
Principal Register, for
• “Electric motors for submersible pumps, electric motors for machines used in
borehole applications, electric submersible motors for use with machines other
than land vehicles, electric motors for pumps, sump pumps, aquarium pumps,
electric pumps for swimming pools, electric pumps in the nature of electro
pump machines, stators and rotors being parts of pumps, electric pumps for
machines, water pumps for irrigation, water pumps for water supply,” in
International Class 7,2
that it is likely to cause confusion, to cause mistake, or to deceive.
After the refusal was made final, Applicant requested reconsideration and
appealed. The Board suspended the appeal and the application was remanded to the
Examining Attorney.3 After the Examining Attorney denied the request for
reconsideration, the appeal was resumed.4 The appeal has been briefed.5 For the
reasons explained below, we affirm the refusal to register.
2 Registration No. 4152161 issued on June 5, 2012 and has been maintained. The application
was filed based on a request for extension of protection of International Registration No.
0888438, registered December 13, 2005, filed under Section 66(a) of the Trademark Act, 15
U.S.C. § 1141f(a). Color is not claimed as a feature of the mark. The registration also
identifies goods in International Class 9 which are not relevant to the refusal of registration.
See May 21, 2023 Final Office Action at TSDR 1 (limiting refusal to the Class 7 goods).
Citations to the examination record refer to the USPTO’s online Trademark Status and
Document Retrieval (TSDR) system, by page number.
3 2 TTABVUE.
Citations to documents relating to the appeal refer to the Board’s online database,
TTABVUE. Before the TTABVUE designation is the docket entry number, and after this
designation are the page references, if applicable.
4 5 TTABVUE.
5 Applicant’s appeal brief appears at 6 TTABVUE and the Examining Attorney’s brief
appears at 8 TTABVUE.

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I. Likelihood of Confusion - Applicable Law
Section 2(d) of the Trademark Act prohibits the registration of a mark that
“[c]onsists of or comprises a mark which 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). Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on the likelihood of confusion factors. In re E. I.
Du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”); see also In
re Majestic Distilling Co., 315 F.3d 1311, 1314 (Fed. Cir. 2003). We consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019). Varying weights 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, 1206 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play more or less
weighty roles in any particular determination.”).
In every Section 2(d) case, two key factors are the similarity or dissimilarity of the
marks and the goods. See In re i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017)
(quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir.
2002)); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA
1976). These two factors, together with others, including the third, fourth, fifth, sixth,
seventh, eighth, and twelfth are addressed in this decision.

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A. The Similarity or Dissimilarity and Nature of the Goods, the
Similarity or Dissimilarity of Established, Likely-To-Continue
Trade Channels and Classes of Consumers
We begin with the second DuPont factor, which focuses on the similarity or
dissimilarity and nature of the goods as they are identified in the involved application
and cited registration. See In re Detroit Athletic Co., 903 F.3d 1297, 1306 (Fed. Cir.
2018); Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937, 942-43 (Fed.
Cir. 1990).
We agree with the Examining Attorney that Applicant’s “pumps for machines” is
broad enough to encompasses all goods of the type described, including Registrant’s
more narrowly identified “electric pumps for machines.” Consequently, we find the
goods to be legally identical. See e.g., In re Hughes Furniture Indus., No. 85627379,
2015 TTAB LEXIS 65, at *10 (Because Applicant’s broadly worded identification of
“furniture” necessarily encompasses Registrant’s narrowly identified “residential and
commercial furniture,” the goods are legally identical.).6
6 Because we find that Applicant’s goods are legally identical to those identified by Registrant,
we need not consider the Examining Attorney’s third-party registration evidence offered to
show that the goods are related. Nonetheless, we find that this evidence further supports our
finding inasmuch as all of the third-party registrations identify both Applicant’s goods
(“pumps for machines”) and Registrant’s goods (“sump pumps”): BARST (Reg. No. 5895725);
TOUGH GUY and Design (Reg. No. 4405980); CHAKOR (Reg. No. 5824735); SEAFLO
(Stylized) (Reg. No. 5818243); PUMBLER (Reg. No. 5955567); YOCHAQUTE (Reg. No.
6526988); and FREESEA and Design (Reg. No. 5574480). August 13, 2022 Office Action at
TSDR 5-21.
Additional supporting evidence was made of record in the subsequent Office Action: SEAFLO
(Stylized) (Reg. No. 5818243); ELIVAC (Reg. No. 4485741); COMFORT HOME and Design
(Reg. No. 4387304); SAPO TECH and Design (Reg. No. 6217762); and NORTHAM (Reg. No.
6965898). May 21, 2023 Office Action at 3-13. Some of the evidence attached to the May 21,
2023 Office Action is duplicative of evidence previously made of record. We have not
considered the duplicative evidence.

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Next we consider established, likely-to-continue channels of trade, the third
DuPont factor. Because we have found that Applicant’s goods and the goods of the
cited registration are legally identical, we must presume that these goods travel
through the same channels of trade and are offered to the same or overlapping classes
of purchasers. In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (Board entitled
to rely on this legal presumption in determining likelihood of confusion); In re Yawata
Iron & Steel Co., 403 F.2d 752, 772 (CCPA 1968) (where there are legally identical
goods, the channels of trade and classes of purchasers are considered to be the same).
Applicant’s arguments that the cited registrant “appears to use its mark for
electric motors for use with pumps, rather than for pumps themselves[,]”7 are not
persuasive. Our determination focuses, as it must, on the identifications of the
involved application and the cited registration, rather than on actual market
realities. See Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323
(Fed. Cir. 2014) (“It was proper, however, for the Board to focus on the application
and registrations rather than on real-world conditions, because ‘the question of
registrability of an applicant’s mark must be decided on the basis of the identification
of goods set forth in the application.’”) (quoting Octocom Sys., 918 F.2d at 942).
B. The Strength or Weakness of the Cited Mark
Before we consider the similarity or dissimilarity of the marks, we first consider
the strength of the cited TESLA mark.
7 6 TTABVUE 7-8; Exhibits A and B to the Request for Reconsideration at TSDR 13-16.

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Under the fifth and sixth DuPont factors, we consider the strength of the cited
mark, and the extent to which that strength may be attenuated by “[t]he number and
nature of similar marks in use on similar goods.” DuPont, 476 F.2d at 1361. The
mark’s strength may vary along a spectrum from very strong to very weak. Joseph
Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1325 (Fed. Cir.
2017). When considering the strength of the cited mark, we assess both its conceptual
strength and its commercial strength. In re Chippendales USA, Inc., 622 F.3d 1346,
1353-54 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual
strength (distinctiveness) and its marketplace strength (secondary meaning).”).
Applicant argues that “here, there is no evidence that the cited Prior Mark is
famous or has acquired secondary meaning within the marketplace or that consumers
associate the term TESLA with the Prior Owner.”8 This argument, however, is
unpersuasive. In ex parte appeals, where the Registrant is not a party, the Examining
Attorney is not expected to adduce evidence of the cited mark’s strength or “fame,”
and the fifth DuPont factor is, as a result, usually treated as neutral. In re Integrated
Embedded, No. 86140341, 2016 TTAB LEXIS 470, at *26; see also In re Thomas, No.
78334625, 2006 TTAB LEXIS 135, at *18 n.11 (fame is not normally a factor in ex
parte proceedings). Such is the case here. See e.g., TRADEMARK MARK MANUAL OF
EXAMINING PROCEDURE (TMEP) § 1207.01(d)(ix) (2025) (“Because, in ex parte
proceedings, the examining attorney is not expected to submit evidence regarding the
8 6 TTABVUE 9.

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fame of the cited mark, this factor is usually treated as neutral in such proceedings.”)
(and authorities cited therein).
Nonetheless, Applicant in such an appeal may seek to contract the cited mark’s
scope of protection by adducing evidence of “[t]he number and nature of similar marks
in use on similar goods.” DuPont, 476 F.2d at 1357. Applicant seeks to do that here
by introducing into the record evidence of various TESLA and TESLA-formative
marks, which it summarizes in two different charts in its brief.9 The charts
correspond to evidence that Applicant submitted in support of its Request for
Reconsideration: the first chart corresponds to evidence attached as Exhibit C, while
the second corresponds to evidence submitted as Exhibit D. We address each chart in
turn.
Considering the ten marks listed in the first chart, we immediately disregard
three of them as they are each the subject of a pending trademark application.10
Third-party applications are evidence only of the fact that they have been filed and
have no other probative value. Made in Nature, LLC v. Pharmavite LLC, No.
91223352, 2022 TTAB LEXIS 251, at *31.
We also disregard evidence of four third-party registrations that are not based on
use in commerce but rather which issued under Sections 44(e) or 66(a) of the
Trademark Act, 15 U.S.C. §§ 1126(e) or 1141f(a), based on the foreign trademark
owners’ home country registrations or as extensions of protection to the United States
9 6 TTABVUE 10-12.
10 6 TTABVUE 10-11. See also August 21, 2023 Request for Reconsideration at TSDR 26-28.

Serial No. 88057994
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based on an international registration -- and have been registered for less than five
years. Made in Nature, 2022 TTAB LEXIS 251, at *30-31; In re 1st USA Realty Pros.
Inc., No. 78553715, 2007 TTAB LEXIS 73, at *5 (“Because these registrations are not
based on use in commerce [but rather are based on Sections 44 or 66 of the Trademark
Act,] they have no probative value in showing the relatedness of the services....”). This
includes: TESLA and Design (Reg. Nos. 5639913 and 5639912);11 TESLA (Reg. No.
1609455);12 and TESLA (Reg. No. 6648702).13
In its brief, Applicant offers only a conclusory statement that that the marks of
the listed third-party registrations in the first chart are “for use with similar goods
and services.”14 As such, Applicant leaves it to us to guess how the identified goods
and services of the three remaining third-party registrations listed in the first chart
are related to those of the cited registration.
Considering the remaining three third-party registrations, we bear in mind that
where, as here, Applicant’s goods are legally identical to those of the cited
registration, only those third-party registrations that also identify goods legally
identical to the cited registrant’s “electric pumps for machines” are relevant to this
analysis. Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS 464, at
*31-32 (After finding the parties’ goods identical, the Board considered only third
party registrations for identical goods in assessing weakness of Petitioner’s mark.).
11 August 21, 2023 Request for Reconsideration at TSDR 19-20.
12 Id. at TSDR 23.
13 Id. at TSDR 25.
14 6 TTABVUE 10.

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See also Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1326
(Fed. Cir. 2018) (where the parties’ goods were identical meat products, third-party
uses on other food products were “properly understood as having no real probative
value for the analysis at hand.”); i.am.symbolic, 866 F.3d at 1328-29 (disregarding
third-party registrations for other types of goods where the proffering party had
neither proven nor explained that they were related to the goods in the cited
registration).
With this in mind, we find that none of the three remaining third-party
registrations listed in Applicant’s first chart have any probative value inasmuch as
they are registered for goods that are on their face are unrelated to the goods
identified by Registrant and for which Applicant has not argued, explained nor
provided evidence of their relatedness: TESLA for, among other things, “aircraft
uninterruptible electrical power supply units” (Reg. No. 3593086);15 TESLA (Stylized)
for “portable aircraft engine starters” and “train passenger cars uninterruptable
power supplies” (Reg. No. 2005764);16 and TESLA DRAGONFLY and Design for
“electric power generators for emergency use” (Reg. No. 6323472).17
Having found none of the marks in the first chart to be probative, we now turn to
Applicant’s second chart. Applicant argues that the marks in the second chart are
relevant because the marks are in “many numerous fields, including those that
15 August 21, 2023 Request for Reconsideration at TSDR 21.
16 Id. at TSDR 22.
17 Id. at TSDR 24.

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overlap with the Applicant and Prior Owner ….”18 We disagree. The registrations
listed in the second chart of third-party registrations identify goods that are
unrelated on their face to the goods identified in the cited registration and, without
evidence or argument explaining their relatedness, we find this evidence has no
probative value. The identifications include, for example, amplifiers for guitars;19 pre-
recorded sound and video recordings;20 electrical contracting services;21 anti-skid
chains;22 integrated circuits;23 and electrical coils.24
Inasmuch as Applicant has failed to establish that any of the marks of the third-
party registrations are registered for goods or services that are legally identical to
those of the cited registration, or even related all, Applicant has failed to dimmish
the conceptual or commercial strength of the mark and, as a result, we find that the
cited mark is entitled to the normal scope of protection due to a mark registered on
the Principal Register.
C. Similarity or Dissimilarity of the Marks
We now turn to the first DuPont factor, which assesses the similarity or
dissimilarity of the marks. DuPont, 476 F.2d at 1361. We consider “the marks in their
18 6 TTABVUE 11; see Exhibit D to the August 21, 2023 Request for Reconsideration at TSDR
29-54.
19 August 21, 2023 Request for Reconsideration at TSDR 30.
20 Id. at TSDR 31.
21 Id. at TSDR 32.
22 Id. at TSDR 33.
23 Id. at TSDR 34.
24 Id. at TSDR 35.

Serial No. 88057994
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entireties as to appearance, sound, connotation and commercial impression.” Viterra,
671 F.3d at 1362 (quoting DuPont, 476 F.2d at 1361). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Inn at St.
John’s, LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13 (quoting In re Davia, No.
85497617, 2014 TTAB LEXIS 214, at *4), aff’d per curiam, 777 Fed. Appx. 516.
The 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.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018)
(quoting Coach Servs. V. Triumph Learning LLC, 668 F.3d 1356, 1368). “[S]imilarity
is not a binary factor but is a matter of degree.” In re St. Helena Hosp., 774 F.3d 747,
752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d 1340, 1344 (Fed. Cir.
2003)).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entirety of
the marks, not just part of the marks. Nonetheless, 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 a consideration of the
marks in their entireties. Stone Lion, 746 F.3d at 1322. “The proper perspective on
which the analysis must focus is on the recollection of the average customer, who
retains a general rather than specific impression of marks.” In re i.am.symbolic, llc,

Serial No. 88057994
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No. 85916778, 2018 TTAB LEXIS 281, at *11. The average customers here are
consumers of pumps for machines, which includes members of the general public.
When considering the marks, we keep in mind that, where, as here, the goods are
legally identical, the degree of similarity necessary to support a conclusion of likely
confusion declines. Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d
874, 877 (Fed. Cir. 1992).
Recall that the cited mark is . As an initial matter and as is
typically the case, we find that the literal element TESLA is the dominant element of
the mark notwithstanding the accompanying design. See Viterra, 671 F.3d at 1366
(“[T]he verbal portion of a word and design mark likely will be the dominant
portion.”). Here, the lines below and to the right of the literal element reinforce and
emphasize the literal element TESLA.
Again, recall that Applicant seeks to register the mark TESLA DISK PUMPS (in
standard characters). We find the term TESLA is the dominant term of the mark for
two reasons, starting with the fact that it appears first in the mark. Palm Bay Imps.,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371 (Fed.
Cir. 2005) (VEUVE as first word is a prominent feature of the marks); Century 21
Real Estate, 970 F.2d at 876 (“[U]pon encountering each mark, consumers must first
notice this identical lead word.”). Second, Applicant has disclaimed the wording DISK
PUMPS, an acknowledgement that the wording is descriptive and thus has less
significance in our likelihood of confusion determination. See Cunningham v. Laser

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Golf Corp., 222 F.3d 943, 947 (Fed. Cir. 2000) (“Regarding descriptive terms, this
court has noted that the ‘descriptive component of a mark may be given little weight
in reaching a conclusion on the likelihood of confusion.’”) (quoting In re Nat’l Data
Corp., 753 F.2d 1056, 1060 (Fed. Cir. 1985)).
Comparing the marks, they are identical in sight and sound inasmuch as they
share the same dominant literal portion TESLA. See e.g., Nat’l Data Corp., 753 F.2d
1056, 1058 (Fed. Cir. 1985) (it is not improper to give more or less weight to a
particular feature of a mark). We agree with Applicant’s general statement that the
marks must be considered in light of the identified goods,25 we disagree that this
renders the marks dissimilar. Because the marks are used with legally identical
goods, the term TESLA will have the same meaning when considered in light of
Applicant’s and Registrant’s goods. Because of this, the marks will also engender
similar commercial impressions.
Applicant argues that the marks appear different because “Applicant and the
Prior Owner present their respective marks using distinct logos or fonts[.]”26 We
disagree. Inasmuch as Applicant seeks registration of its mark in standard
characters, Applicant may depict its mark in any manner, regardless of the font style,
size, or color, and might display it in a manner similar to Registrant’s mark. Viterra,
671 F.3d at 1363-64; Squirtco v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir. 1983)
(rejecting argument that for purposes of determining whether two marks are similar,
25 6 TTABVUE 3.
26 6 TTABVUE 4.

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a mark in a typed drawing (equivalent to standard character format) is distinct from
such mark in a logo format; “[b]y presenting its mark merely in a typed drawing, a
difference cannot legally be asserted by that party”).
Applicant’s argument that “[it] and the Prior Owner present, use, and advertise
their respective marks in unique ways[,]” is also not persuasive. To the extent that
Applicant’s arguments rely on the actual depiction of the marks in use, it is
misplaced. In an ex parte appeal, our analysis is based on the marks as depicted in
the application and cited registration without regard to how the marks appear in
actual use. In re Aquitaine Wine USA, LLC, No. 86928469, 2018 TTAB LEXIS 108,
at *11 (“[W]e do not consider how Applicant and Registrant actually use their marks
in the marketplace, but rather how they appear in the registration and the
application.”).
While there are some specific differences between Applicant’s mark and the mark
of the cited registration, we find that, considering the marks in their entireties, the
marks are similar due to the shared dominant element TESLA.
D. Purchasing Conditions and Consumer Care
The fourth DuPont factor considers “[t]he conditions under which and buyers to
whom sales are made….” DuPont, 476 F.2d at 1361. Under this factor, purchaser
sophistication may tend to minimize likelihood of confusion, while impulse purchases
of inexpensive items may tend to have the opposite effect. Palm Bay, 396 F.3d at
1376. We base our decision, as we must, on the least sophisticated potential
purchaser. Stone Lion, 746 F.3d at 1325.

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Applicant argues, without evidence, that Applicant’s consumers and the
consumers of the cited registrant’s goods are “well educated, and not likely to make
such purchases on impulse[,]”27 and that the goods can be “extremely expensive.”28
However, Applicant did not cite to nor do we see in the record any evidence to support
these arguments. Therefore, we do not consider them. See Cai, 901 F.3d at 1371
(“Attorney argument is no substitute for evidence.”) (quoting Enzo Biochem, Inc. v.
Gen-Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005)). Regardless, “even consumers
who exercise a higher degree of care are not necessarily knowledgeable regarding the
trademarks at issue, and therefore immune from source confusion.” Made in Nature,
2022 TTAB LEXIS 251, at *70 (quotation and quotation marks omitted).
E. Applicant’s Argument that There Has Been No Actual Confusion
We turn now to the seventh and eighth DuPont factors, which pertain to the issue
of actual confusion. The seventh factor requires us to consider evidence pertaining to
“the nature and extent of any actual confusion,” while the eighth factor requires us
to consider evidence pertaining to “the length of time during and conditions under
which there has been concurrent use without evidence of actual confusion.” DuPont,
476 F.2d at 1361.
Applicant argues that there is “no documented evidence” of actual confusion under
the seventh DuPont factor.29 However, the seventh and eighth factors are
27 6 TTABVUE 8.
28 6 TTABVUE 9.
29 6 TTABVUE 9-10.

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interrelated. “[T]he absence of evidence of actual confusion, under the seventh du
Pont factor, by itself is entitled to little weight in our likelihood of confusion analysis
unless there also is evidence, under the eighth du Pont factor, that there has been a
significant opportunity for actual confusion to have occurred.” In re Ass’n of the U.S.
Army, No. 76578579, 2007 TTAB LEXIS 52, at *27.
Applicant’s argument based on the alleged absence of actual confusion is
unavailing because there is no evidence regarding the extent of Applicant’s use of its
mark or the extent of Registrant’s use of the cited mark. That is, there is no evidence
of “actual market conditions;” for example, there are no “specifics as to [Applicant’s
or Registrant’s] use of its mark in any particular geographical location.” In re Guild
Mortg. Co., No. 86709944, 2020 TTAB LEXIS 17, at *19. Therefore, we cannot gauge
whether or the extent to which there has been an opportunity for confusion to have
occurred.
In any event, a lack of evidence of actual confusion carries little weight, especially
in an ex parte case such as this. Majestic Distilling, 315 F.3d at 1317. This is true
because we do not know whether the owner of the cited registration is aware of any
instances of actual confusion as there has been no opportunity to hear from it in this
ex parte context. Guild Mortg., 2020 TTAB LEXIS 17, at *23. “We therefore are
getting only half the story.” Id.
F. Alleged De Minimis Confusion
The twelfth DuPont factor discusses “[t]he extent of potential confusion, i.e.,
whether minimal or substantial.” DuPont, 476 F.2d at 1361.

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The premise of Applicant’s argument is that because there are no instances of
actual confusion of record, the potential for future confusion is de minimis.30 Notably,
Applicant did not make of record any evidence to support its argument, such as how
many consumers purchase or use the goods at issue. See e.g., In re Davey Prods. Pty,
No. 77029776, 2009 TTAB LEXIS 524, at *26 (rejecting applicant’s argument that
the potential for confusion was de minimis where the goods at issue “would be
marketed to and purchased by significant numbers of purchasers”). Thus, Applicant’s
arguments are unpersuasive.
G. Balancing the DuPont Factors
Having carefully considered all of the evidence made of record, as well as all of the
arguments related thereto, we now turn to the task of weighing the DuPont factors
for which there has been evidence and argument. In re Charger Ventures LLC, 64
F.4th 1375, 1384 (Fed. Cir. 2023).
The goods are legally identical, and their channels of trade and classes of
consumers are presumed to overlap; as a result, the second and third DuPont factors
weigh heavily in favor of a likelihood of confusion. Further, the legal identity of the
goods reduces the degree of similarity between the marks necessary to conclude that
there is a likelihood of confusion. Here, the marks are similar due to the shared
dominant term TESLA, so the first factor also weighs heavily in favor of a likelihood
of confusion.
30 6 TTABVUE 12.

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The fourth, fifth, sixth, seventh, eighth, and twelfth factors are all neutral.
Because the first, second and third factors all weigh heavily in favor of a likelihood
of confusion and none weigh against it, we conclude that confusion is likely.
Decision
The refusal to register Applicant’s mark is affirmed.