San Ignacio University Inc.

Mailed: February 23, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re San Ignacio University Inc.
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Serial No. 98286205
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Sherry Flax of Saul Ewing LLP,
for San Ignacio University Inc.
Karl Wert, Trademark Examining Attorney, Law Office 120,
Joshua Toy, Managing Attorney.
————
Before Greenbaum, Elgin, and Lavache,
Administrative Trademark Judges.
Opinion by Lavache, Administrative Trademark Judge:
Applicant San Ignacio University Inc. seeks registration on the Principal Register
of the stylized mark below for:
Educating at university or colleges; Educational services, namely, providing
courses of instruction, workshops, seminars, conferences, and lectures in the
fields of business, education, and hospitality; Educational services, namely,
conducting distance learning instruction at the university level; Educational
services, namely, providing online courses of instruction at the university and
post-graduate level and distribution of course material in connection
therewith; Providing a web site that features information on attending college
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 98286205
2
and university with an emphasis on newly enrolled students, in International
Class 41.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground of likelihood of
confusion, citing the standard character mark SIU, which is registered on the
Principal Register for “Educational Services in the nature of courses and degree
programs at the University level; organizing educational, cultural, sporting, and
entertainment events,” in International Class 41.2
After the Examining Attorney made the refusal final, Applicant requested
reconsideration and filed an appeal. The application was remanded to the Examining
Attorney for consideration of the request for reconsideration, which the Examining
Attorney denied. The appeal then resumed and was fully briefed.3 For the reasons
explained below, we affirm the refusal.
1 Application Serial No. 98286205, filed November 27, 2023, based on Applicant’s allegation
of use in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), claiming August,
17, 2015 as both the date of first use anywhere and the date of first use in commerce. The
application includes a disclaimer of “UNIVERSITY” and a translation statement indicating
that “[t]he English translation of ‘SAN IGNACIO’ in the mark is ‘Saint Ignatius.’” The
description of the mark states that “[t]he mark consists of upper case letters ‘SIU’ in blue,
green, and yellow, respectively, and the terms SAN IGNACIO UNIVERSITY in blue upper
case letters to the right.” The colors blue, green, and yellow are claimed as a feature of the
mark.
2 Registration No. 3821063, issued on July 20, 2010; renewed.
3 Applicant’s reply brief appears to be identical to its main appeal brief. Compare 6
TTABVUE, with 9 TTABVUE. A reply brief is a voluntary submission, allowing an applicant
to respond to arguments made in the examining attorney’s brief; it should not consist of a

Serial No. 98286205
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I. Evidentiary Objection
Before turning to our analysis, we address the Examining Attorney’s objection to
evidence that Applicant references and discusses in its brief, namely, internet
materials that were never properly introduced into the record.4 The Examining
Attorney previously objected to, and did not consider, this evidence when it was
included in Applicant’s response to a nonfinal Office action, advising Applicant that
it was improperly submitted because it consisted of webpage screenshots with no
indication of the date they were accessed or downloaded.5 The Examining Attorney
asks us to disregard this evidence.6
The record should be complete prior to the filing of the appeal. Trademark Rule
2.142(d), 37 C.F.R. § 2.142(d); In re HSB Solomon Assocs., No. 77136242, 2012 TTAB
LEXIS 79, at *9; TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) § 1207.01 (2025). To properly introduce internet evidence into the record, a
party must provide (1) an image file or printout of the downloaded webpage, (2) the
date the evidence was downloaded or accessed, and (3) the complete URL address of
mere duplicate of the applicant’s main brief. Cf. ITC Ent. Grp. v. Nintendo of Am., No.
92023557, 1998 TTAB LEXIS 13, at *1-3 (indicating that filing duplicative submissions is a
waste of time and resources, and is a burden on the Board).
The TTABVUE and Trademark Status and Document Retrieval (TSDR) citations in this
opinion refer respectively to entries in the Board’s electronic docket and the electronic
application file. For TTABVUE citations, the number preceding the TTABVUE designation
is the docket entry number and any numbers following indicate the relevant page numbers
within the docket entry
4 Examining Attorney’s Brief, 8 TTABVUE 2.
5 See November 12, 2024 Final Office Action at TSDR 6-7.
6 Examining Attorney’s Brief, 8 TTABVUE 2.

Serial No. 98286205
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the webpage. See In re I-Coat Co., LLC, No. 86802467, 2018 TTAB LEXIS 171, at *7-
9; see also TBMP § 1208.03; TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP)
§ 710.01(b) (2025). The Board will not consider internet evidence that does not comply
with these requirements, except where the examining attorney does not object. See I-
Coat Co., 2018 TTAB LEXIS 171, at *9.
Here, the access dates for the website screenshots were not indicated in the
screenshots themselves or elsewhere in the submission when Applicant originally
filed it.7 The Examining Attorney properly objected to this evidence and advised
Applicant how to correct the deficiency.8 Applicant failed to provide the required
information, despite having the opportunity to do so in subsequent submissions. We
therefore sustain the Examining Attorney’s objection and have not considered this
evidence.
II. Likelihood of Confusion
Trademark Act Section 2(d), in relevant part, prohibits registration of a mark
that “so resembles a mark registered in the Patent and Trademark Office . . . as to be
likely, when used on or in connection with the goods [or services] of the applicant, to
cause confusion.” 15 U.S.C. § 1052(d). To determine whether confusion is likely, we
analyze all probative evidence relevant to the factors set out in In re E. I. du Pont de
Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). See In re Majestic
Distilling Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003).
7 See September 27, 2024 Response to Nonfinal Office Action at TSDR 6-10.
8 See November 12, 2024 Final Office Action at TSDR 6-7.

Serial No. 98286205
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In every Section 2(d) case, two key DuPont factors are the similarity or
dissimilarity of the marks and respective services, because the “fundamental inquiry
mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods [or services] and differences in the marks.” Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976). Here, we
have considered each DuPont factor that is relevant and for which there is evidence
and argument of record. See In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir.
2019).
Varying weight may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed.
Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 1205 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination.”). Ultimately, however, “each case must be decided on its own facts
and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d
1197, 1199 (CCPA 1973).
A. Comparison of the Services
We begin our analysis with the second DuPont factor, which concerns the
similarity or dissimilarity and nature of the respective services, i.e., the relatedness
of the services. DuPont, 476 F.2d at 1361. In assessing relatedness, we must consider
the services as they are identified in Applicant’s application and the cited
registration. See Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323
(Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d
937, 942 (Fed. Cir. 1990)).

Serial No. 98286205
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Further, registration may be refused as to an entire class of services if an
applicant’s mark as used in connection with any of its identified services in that class
is likely to cause confusion with the registrant’s mark for any of the services listed in
the cited registration. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir.
1983) (holding that a single good from among several may sustain a finding of
likelihood of confusion); Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335,
1336 (CCPA 1981) (indicating that likelihood of confusion must be found if there is
likely to be confusion with respect to any item that comes within the identification of
goods [or services] in the application).
Again, Applicant’s services are identified as:
Educating at university or colleges; Educational services, namely,
providing courses of instruction, workshops, seminars, conferences, and
lectures in the fields of business, education, and hospitality; Educational
services, namely, conducting distance learning instruction at the
university level; Educational services, namely, providing online courses
of instruction at the university and post-graduate level and distribution
of course material in connection therewith; Providing a web site that
features information on attending college and university with an
emphasis on newly enrolled students, in International Class 41.
And Registrant’s services are “Educational Services in the nature of courses and
degree programs at the University level; organizing educational, cultural, sporting,
and entertainment events,” in International Class 41.
We agree with the Examining Attorney that Applicant’s educational services
encompass or otherwise broadly overlap with Registrant’s educational services,9
which Applicant does not dispute in its brief. But for simplicity, and because
9 Examining Attorney’s Brief, 8 TTABVUE 9.

Serial No. 98286205
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confusion may be found as to an entire class based on a single service within that
class, we focus on Applicant’s “educational services, namely, providing online courses
of instruction at the university and post-graduate level and distribution of course
material in connection therewith.” These services are encompassed by Registrant’s
broadly identified “educational services in the nature of courses and degree programs
at the University level,” and thus the respective services are legally identical.10 See,
e.g., In re Hughes Furniture Indus., No. 85627379, 2015 TTAB LEXIS 65, at *10
(“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses
Registrant’s narrowly identified ‘residential and commercial furniture.’”).
Accordingly, the second DuPont factor weighs in favor of a conclusion that
confusion is likely.
B. Trade Channels and Classes of Consumers
Next, we consider the similarity or dissimilarity of established, likely-to-continue
channels of trade, the third DuPont factor. DuPont, 476 F.2d at 1361. We presume
that, as to the legally identical services, the relevant trade channels and classes of
purchasers are the same. See In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012)
10 A “university” is “an institution of higher learning providing facilities for teaching and
research and authorized to grant academic degrees,” “specifically : one made up of an
undergraduate division which confers bachelors degrees and a graduate division which
comprises a graduate school and professional schools each of which may confer master’s
degrees and doctorates.” MERRIAM-WEBSTER DICTIONARY, https://merriam-
webster.com/dictionary/university (accessed on February 23, 2026) (emphasis removed). The
Board may take judicial notice of dictionary definitions, including online dictionaries that
exist in printed form or regular fixed editions. Univ. of Notre Dame du Lac v. J.C. Gourmet
Food Imps. Co., No. 91061847, 1982 TTAB LEXIS 146, at *7, aff’d, 703 F.2d 1372 (Fed. Cir.
1983); In re Red Bull GmbH, No. 75788830, 2006 TTAB LEXIS 136, at *7; TBMP § 1208.04.

Serial No. 98286205
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(finding Board entitled to presume that trade channels and classes of purchasers
were the same where the respective goods were identical); In re Am. Cruise Lines,
Inc., No. 87940022, 2018 TTAB LEXIS 363, at *5; In re Inn at St. John’s, LLC, No.
87075988, 2018 TTAB LEXIS 170, at *6, aff’d, 777 Fed. Appx. 516 (Fed. Cir. 2019).
We therefore find that the third DuPont factor also weighs in favor of a conclusion
that confusion is likely.
C. Comparison of the Marks
We now turn to the first DuPont factor, which focuses on the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation,
and commercial impression. See Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005) (quoting DuPont, 476
F.2d at 1361). Similarity as to any one of these elements may be sufficient to support
a finding that the marks are confusingly similar. See Krim-Ko Corp. v. Coca-Cola Co.,
390 F.2d 728, 732 (CCPA 1968) (“It is sufficient if the similarity in either form,
spelling or sound alone is likely to cause confusion.”); Inn at St. John’s, 2018 TTAB
LEXIS 170, at *13. And where the parties’ services are legally identical, as they are
here, the degree of similarity between the marks need not be as great to find that
confusion as to source is likely. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1373
(Fed. Cir. 2018); In re Chica, Inc., No. 76627857, 2007 TTAB LEXIS 77, at *7-8; In re
J.M. Originals, Inc., No. 73530739, 1987 TTAB LEXIS 21, at *3.
Here, Applicant’s mark is and the cited mark is SIU (in standard
characters).

Serial No. 98286205
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While the respective marks appear together above, this placement does not reflect
the actual conditions under which consumers are likely to encounter the marks in the
marketplace. Thus, when assessing these marks, “[t]he proper test is not a side-by-
side comparison of the marks, but instead whether the marks are sufficiently similar
in terms of their commercial impression such that persons who encounter the marks
would be likely to assume a connection between the parties.” In re i.am.symbolic, llc,
866 F.3d 1315, 1324 (Fed. Cir. 2017) (quoting Coach Servs., 668 F.3d at 1368). “The
focus is on the recollection of the average purchaser, who normally retains a general
rather than a specific impression of trademarks.” In re Box Sols. Corp., No. 76267086,
2006 TTAB LEXIS 176, at *14.
Further, all elements of the respective marks must be considered. See Viterra, 671
F.3d at 1362 (“[M]arks must be viewed ‘in their entireties,’ and it is improper to
dissect a mark . . ., including when a mark contains both words and a design.”); In re
Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985) (stating that “marks must be
compared in their entireties”). That said, “there is nothing improper in stating that,
for rational reasons, more or less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on consideration of the marks in their
entireties.” Nat’l Data, 753 F.2d at 1058.
Here, we agree with the Examining Attorney that serves as the dominant
element in Applicant’s mark, both because of its prominent placement as the first
element in the mark, and because of its larger size and higher degree of stylization
relative to the other wording in the mark, . See, e.g., Palm Bay Imps., 396

Serial No. 98286205
10
F.3d at 1371 (finding VEUVE was a prominent feature of the relevant mark because
it was the first word in the mark); In re Coors Brewing Co., 343 F.3d 1340, 1344 (Fed.
Cir. 2003) (agreeing with the Board that wording appearing in smaller font at the
bottom of the mark was less significant than other more prominent wording); In re
Aquitaine Wine USA, LLC, No. 86928469, 2018 TTAB LEXIS 108, at *6-7 (finding a
term to be the dominant element of a mark because “it comprise[d] the largest literal
portion of the mark in terms of size, position, and emphasis”); In re QuickPayNet,
Ltd., No. 85925162, 2015 TTAB LEXIS 130, at *10 (finding consumers would focus
primarily on the first portion of each respective mark).
Applicant argues, however, that its mark is “entirely distinguishable” from the
cited mark, SIU, because its mark “includes . . . distinctive stylization, and a color
claim.”11 But, because the cited mark, SIU, is registered in standard character form,
it may be displayed in any font, size, style, or color, including the font, size, style, and
colors in which the SIU portion of Applicant’s mark appears. Viterra, 671 F.3d at 1368
(finding the Board’s holding “that a standard character mark is not limited to any
particular font, size, style, or color, it is entirely consistent with our case law, the
relevant regulations, and the TMEP”). Thus, the cited mark is legally identical to the
dominant literal element in Applicant’s mark. See i.am.symbolic, 866 F.3d at 1324
(“[Appellant] does not, and cannot, dispute that the mark, I AM in standard character
form, and the registrants’ marks, I AM in standard character, typed, or stylized form,
are pronounced the same way and, at a minimum, legally identical.”); Squirtco, 697
11 Applicant’s Appeal Brief, 6 TTABVUE 8.

Serial No. 98286205
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F.2d at 1040 (“[By presenting its mark merely in [the equivalent of standard
characters], a difference cannot legally be asserted by that party.”).
And, often, where the entirety of one mark is the dominant element of another
mark, the likelihood of confusion increases. See, e.g., Hunter Indus., Inc. v. Toro Co.,
No. 91203612, 2014 TTAB LEXIS 105, at *33 (“Likelihood of confusion often has been
found where the entirety of one mark is incorporated within another.”); see also Stone
Lion, 746 F.3d at 1320-22 (affirming Board’s finding that the marks at issue were
similar where the applicant’s mark STONE LION CAPITAL incorporated the
entirety of the registered marks LION CAPITAL and LION); Century 21 Real Estate
Corp. v. Century Life of Am., 970 F.2d 874, 876 (Fed. Cir. 1992) (finding CENTURY
21 and CENTURY LIFE OF AMERICA confusingly similar, noting that “upon
encountering each mark, consumers must first notice this identical lead word”);
Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019 TTAB LEXIS 347, at *20-
23 (finding “the parties’ marks are similar in their entireties” after noting that
respondent’s “junior mark, ROAD WARRIOR contains [petitioner’s] entire mark
WARRIOR”).
We find that to be the case here. Indeed, because the cited mark is legally identical
to the dominant literal element Applicant’s mark, we find that the marks look and
sound similar. See, e.g., In re i.am.symbolic, llc, No. 85916778, 2018 TTAB LEXIS
281, at *25 (finding marks more similar than dissimilar where the marks shared the
same dominant element, which was identical in sound and meaning); Aquitaine Wine,

Serial No. 98286205
12
2018 TTAB LEXIS 108, at *5 (“The marks at issue are similar in sight and sound,
since they share the term LAROQUE.”).
In making this finding, we acknowledge that the additional wording SAN
IGNACIO UNIVERSITY in Applicant’s mark creates a potential point of distinction
between the two marks, but we disagree that it obviates a likelihood of confusion. See,
e.g., In re Charger Ventures, 64 F.4th 1375, 1382 (Fed. Cir. 2023) (“[A]n additional
word or component may technically differentiate a mark but do little to alleviate
confusion.”). Doubtless, many consumers who view Applicant’s mark would infer that
SIU in the mark is an initialism for the wording SAN IGNACIO UNIVERSITY.
However, there is nothing to deter those same consumers from concluding that SIU
alone in the cited mark also stands for SAN IGNACIO UNIVERSITY. In other words,
because there is no other differentiating wording in the cited mark to create a
different commercial impression or connotation as to SIU, consumers encountering
legally identical services under the respective marks could reasonably assume that
Applicant’s mark is merely a variation of, or derivative of, the cited mark, or vice
versa, and both marks thus identify a common source. See, e.g., In re Dare Foods Inc.,
No. 88758625, 2022 TTAB LEXIS 92, at *13 (“[C]onsumers encountering these marks
[RAINCOAST DIP and RAINCOAST trading] could mistakenly believe the former is
a variation on the registered mark used to identify a particular line of snack food
dips, but nonetheless emanating from a common source.”); Joel Gott Wines, LLC v.
Rehoboth Von Gott, Inc., No. 91197659, 2013 TTAB LEXIS 314, at *32 (“Purchasers
of opposer’s GOTT and JOEL GOTT wines are likely to assume that applicants goods,

Serial No. 98286205
13
sold under the mark GOTT LIGHT and design, are merely a line extension of goods
emanating from opposer.”); In re Comexa Ltda., No. 75396043, 2001 TTAB LEXIS
274, at *12 (finding applicant’s use of term AMAZON and parrot design for chili sauce
and pepper sauce is likely to cause confusion with registrant’s AMAZON mark for
restaurant services); SMS, Inc. v. Byn-Mar Inc., No. 91068062, 1985 TTAB LEXIS
32, at *4 (finding applicant’s marks ALSO ANDREA and ANDREA SPORT were
“likely to evoke an association by consumers with opposer’s preexisting mark
[ANDREA SIMONE] for its established line of clothing.”).
Thus, while each mark must be considered in its entirety, both marks are likely
to create similar general connotations and commercial impressions in the minds of
consumers when considered in connection with the parties’ legally identical services.
See, e.g., In re Dixie Rests., Inc., 105 F.3d 1405, 1407 (Fed. Cir. 1997) (affirming the
Board’s finding that because of the shared dominant term DELTA, the marks DELTA
and THE DELTA CAFE (and design) were similar in appearance, sound, and
meaning, despite the differences in the marks); Specialty Brands, Inc. v. Coffee Bean
Distribs., 748 F.2d 669, 673, 676 (Fed. Cir. 1984) (concluding that a likelihood of
confusion exists between SPICE ISLANDS and SPICE VALLEY because, inter alia,
the marks created similar commercial impressions and the parties’ goods were
identical); In re Morinaga Nyugo KK, No. 86338392, 2016 TTAB LEXIS 448, at * 27-
28 (“[W]hile the marks are not identical, they are similar enough that their use on
identical or closely related goods is likely to cause confusion.”) In re Max Cap. Grp.,
No. 77186166, 2010 TTAB LEXIS 1, at *14 (finding the shared term MAX in

Serial No. 98286205
14
respective marks would have the same connotation where the services at issue were
identical, despite other differences in the marks); see also Coors, 343 F.3d at 1344
(“[S]imilarity is not a binary factor but is a matter of degree.”).
Accordingly, the first DuPont factor favors a conclusion that confusion is likely.
D. Purchasing Conditions and Sophistication of Purchasers
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361. Applicant has not provided any evidence of consumer
sophistication as to the relevant services here, but contends that “[t]he degree of care
and thought involved in choosing a college is undoubtedly higher than that required
for most purchases.”12
We agree that, based on their nature alone, educational services at the
college/university level generally are unlikely to be purchased on impulse, but instead
with careful deliberation by informed consumers. In re Info. Builders Inc., No.
87753964, 2020 TTAB LEXIS 20, at *4 (“[I]n light of the inherent nature of the goods
and services involved, some degree of purchasing care may be exercised by Applicant’s
potential or actual consumers.”). But we have no evidence that Applicant’s services
of “providing online courses of instruction at the university and post-graduate level”
would be purchased with the same level of care as other forms of university education
services, or that all purchasers or users of these services would be well-informed or
12 Id. at 10 (quoting Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1256
(11th Cir. 2016)).

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sophisticated. And we have no reason to find that the least sophisticated consumers
of these services would exercise anything more than ordinary care in selecting or
using these services. See, e.g., In re Samsung Display Co., No. 90502617, 2024 TTAB
LEXIS 258, at *25-25 (finding, in the absence of contrary evidence, that the least
sophisticated purchasers of applicant’s goods would not exercise anything more than
ordinary care). Further, even sophisticated purchasers are not immune from source
confusion, especially where, as here, the relevant services are legally identical and
are being offered under highly similar marks. See Shell Oil Co., 992 F.2d at 1208
(citing Weiss Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 1548 (Fed. Cir. 1990)
(affirming the Board’s reasoning that even sophisticated purchasers may be confused
by similar marks)).
On this record, we find that, at best, the fourth DuPont factor weighs slightly
against a conclusion that confusion is likely.
E. Actual Confusion
The seventh and eighth DuPont factors relate, respectively, to the nature and
extent of any actual confusion and the extent of the opportunity for actual confusion.
See DuPont, 476 F.2d at 1361. Here, Applicant argues that it “has used its mark in
interstate commerce since at least as early as August 17, 2015, without any
communication from Registrant and no evidence whatsoever of actual consumer
confusion.” 13 According to Applicant, “[t]he coexistence of the marks for more than
13 Id. at 9.

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16
ten years establishes that consumers are not likely to be confused between the
sources of the services.”14
However, Applicant has not provided a declaration, or any other evidence, in
support of this argument. We therefore consider it mere attorney argument with little
persuasive value. See Cai, 901 F.3d at 1371 (“Attorney argument is no substitute for
evidence.” (citation omitted)). In any event, “the relevant test is likelihood of
confusion, not actual confusion.” In re Detroit Athletic Co., 903 F.3d 1297, 1309 (Fed.
Cir. 2018) (emphasis in italics in original). Thus, in the context of an ex parte
proceeding, “[l]ikelihood of confusion . . . can be established even in the face of
evidence suggesting that the consuming public was not actually confused.” Id.
Further, as the Board has previously explained,
[t]he fact that an applicant in an ex parte case is unaware of any
instances of actual confusion is generally entitled to little probative
weight in the likelihood of confusion analysis, inasmuch as the Board in
such cases generally has no way to know whether the registrant likewise
is unaware of any instances of actual confusion, nor is it usually possible
to determine that there has been any significant opportunity for actual
confusion to have occurred.
In re Opus One, Inc., No. 75722593, 2001 TTAB LEXIS 707, at *19-20.
We therefore treat the seventh and eighth DuPont factors as neutral. See id. at
*22-25.
14 Id.

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17
III. Conclusion
Having considered all of the arguments and evidence of record pertaining to the
relevant DuPont factors,15 we find that, despite the additional wording in Applicant’s
mark, the marks in their entireties are highly similar in appearance, sound,
connotation, and overall commercial impression; that Applicant’s services are legally
identical to Registrant’s services; and that the respective services travel in
overlapping trade channels and are offered to the same classes of consumers. These
DuPont factors weigh strongly in favor of a conclusion that confusion is likely, while
the factors relating to actual confusion are neutral. Thus, even taking into account
the potential sophistication of the consumers of the services, we conclude that
confusion as to source is likely.
Decision: The refusal under Trademark Act Section 2(d) to register Applicant’s
mark is affirmed.
15 Applicant also argued that the cited mark “is weak and entitled to little protection.” Id. at
8 (capitalization modified). This argument typically implicates the sixth DuPont factor.
DuPont, 476 F.2d at 1361. However, the only evidence that Applicant points to in support of
this argument are the internet materials that, as discussed at the beginning of this opinion,
were not properly made of record. During prosecution, Applicant did submit a copy of a third-
party registration for the mark SIUniversity (in stylized form) for “education services in the
nature of classes, seminars and training programs for surgeons and their staffs in the field
of spinal joint degeneration and advancements in the field of spinal implant surgery,” in
International Class 41. See May 6, 2025 Request for Reconsideration at TSDR 4 (Registration
No. 4611233, issued on September 23, 2014; renewed). However, Applicant submitted the
third-party registration to argue that the Office had not found a likelihood of confusion
between the mark in the third-party registration and the registered mark cited here, see
Applicant’s Appeal Brief, 6 TTABVUE 10, not to show that the cited mark is somehow weak
or entitled to less protection. In the absence of any evidence relevant to the sixth DuPont
factor, the factor is not material to our analysis. See In re Embiid, No. 88202890, 2021 TTAB
LEXIS 168, at *11 n.26 (“Because there is no argument or record evidence directed to these
factors, we have not considered them in our analysis of the likelihood of confusion.”).