Cook Capital, LLC, a Cook Islands Limited Liability Company

This Opinion is Not a
Precedent of the TTAB
Mailed: March 30, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Cook Capital, LLC
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Serial No. 97627407
_____
Mark B. Garred of Stetina Garred Brucker & Newboles,
for Cook Capital, LLC.
Andrew Crowder-Schaefer, Trademark Examining Attorney, Law Office 104,
Zachary Cromer, Managing Attorney.
_____
Before Heasley, Allard, and Lavache,
Administrative Trademark Judges.
Opinion by Heasley, Administrative Trademark Judge:
Applicant, Cook Capital, LLC, seeks registration on the Principal Register of the
standard character mark COLORS for “educational seminar services, namely,
conducting seminars directed toward personal behavior analysis and emotional self-
improvement” in International Class 41.1
1 Application Ser. No. 97627407, filed on October 11, 2022 under Section 1(b), 15 U.S.C.
§ 1051(b), asserting a bona fide intention to use the mark in commerce.

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The Examining Attorney has refused registration 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 these services, so resembles two registered marks owned by the same
Registrant as to be likely to cause confusion, to cause mistake, or to deceive: COLORS
(in standard characters)2 and the word-and-design mark ,3
both for
Conducting workshops and seminars, live and online, in the field of
therapeutic spiritual self-healing, specifically targeting the homeless,
inmates, bullies, battered women, religious organizations, and people with
mental dysfunction, but specifically excluding personality identification
programs and workshops and seminars, light therapy, namely, alternative
healthcare modalities utilizing light, and color therapy, namely,
alternative healthcare modalities utilizing color, in International Class
41.4
When the refusal was made final, Applicant requested reconsideration and
appealed. After the Examining Attorney denied the request for reconsideration, the
2 Registration No. 4407643, issued on the Principal Register on September 24, 2013; renewed,
Section 8 and 15 declarations accepted.
3 Registration No. 4407665, issued on the Principal Register on September 24, 2013; renewed,
Section 8 and 15 declarations accepted. According to Registrant’s description of the mark,
“The mark consists of the text ‘COLORS’ in red with black shadowing; after each of the letters
making up the word ‘COLORS’, the following symbols are featured in order from left to right
at the bottom of the mark: a cross in gold, a star and crescent in green, a pranava symbol
which is the Hindu word for ‘om’ in yellow, a star of David in light blue, a yin and yang in
black and white, and an atheist symbol comprised of an ‘A’ in script partially enclosed in a
circle in black; the white background is not claimed as a feature of the mark.” The colors red,
black, gold, yellow, green, light blue and white are claimed as a feature of the mark.
4 The cited Registrations both also recite “Providing both in-person and on-line self-
awareness and spiritual counseling services; providing spiritual rehabilitation services, but
specifically excluding light and color therapy, in International Class 45.” The Examining
Attorney, however, chooses to focus on the Class 41 services, and so shall we.

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appeal proceeded,5 and is fully briefed.6 We affirm the refusal to register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act provides that a mark may be refused
registration if it:
[c]onsists of or comprises a mark which so resembles 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, as to be likely, when
used on or in connection with the goods [or services] of the applicant, to
cause confusion, or to cause mistake, or to deceive….
15 U.S.C. § 1052(d).
The fundamental purposes underlying Section 2(d) are to prevent consumer
confusion as to source and to protect trademark owners from damage caused by
registration of confusingly similar marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc.,
469 U.S. 189, 193 (1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163-64
(1995).
“‘Whether a likelihood of confusion exists’ is ‘aided by application of the thirteen
DuPont factors.’ Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d
1315, 1319 (Fed. Cir. 2018) (citing In re E. I. DuPont DeNemours & Co., 476 F.2d
1357, 1361 (C.C.P.A. 1973)).” Bullshine Distillery LLC v. Sazerac Brands, LLC, 130
F.4th 1025, 1031 (Fed. Cir. 2025). “The likelihood of confusion analysis considers all
DuPont factors for which there is evidence of record but ‘may focus . . . on dispositive
5 4, 5 TTABVUE. Citations to the briefs and other materials in the appeal record refer to the
Board’s TTABVUE online docket system.
6 Applicant’s main brief, 6 TTABVUE, Examining Attorney’s brief, 8 TTABVUE, and
Applicant’s reply brief, 9 TTABVUE.

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factors, such as similarity of the marks and relatedness of the [services].’ Hewlett-
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1265 (Fed. Cir. 2002) (quoting Han
Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 1336 (Fed. Cir. 2001)).” Sunkist
Growers, Inc. v. Intrastate Distributors, Inc., 144 F.4th 1376, 1379 (Fed. Cir. 2025).
A. Similarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. 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 WL 2734893,
*5 (TTAB 2018), aff’d, 777 Fed. Appx. 516 (Fed. Cir. 2019) (citing In re Davia, No.
85497617, 2014 WL 2531200, *2 (TTAB 2014)). “[T]he ‘similarity or dissimilarity of
the marks in their entireties’ is a predominant inquiry.” Heil v. Tripleye, No.
91277359, 2024 WL 4925901, *29 (TTAB 2024) (quoting Herbko Int’l, Inc. v. Kappa
Books, Inc., 308 F.3d 1156, 1165 (Fed. Cir. 2002)).
We focus on Registrant’s standard character registered mark, COLORS, which is
identical to Applicant’s COLORS mark. If the refusal is not affirmed on the basis of
this registered mark, it would not be affirmed on the basis of the other cited mark.
Heil v. Tripleye, 2024 WL 4925901, at *17. Applicant does not dispute that these
marks are identical. They are the same in sight and sound, and convey the same
arbitrary connotation and commercial impression as applied to their recited services.
“Thus, this factor weighs heavily in favor of a likelihood of confusion because
identicality of the marks is likely to lead to the assumption that there is a common

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source for the parties’ goods and services.” Tiger Lily Ventures Ltd. v. Barclays Cap.
Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022); see also In re Samsung Display Co., Ltd.,
No. 90502617, 2024 WL 3451873, *3 (TTAB 2024) (“The standard-character … marks
in the application and cited registration are identical in all aspects, and the first
DuPont factor therefore weighs heavily in favor of a likelihood of confusion.”).
B. Relatedness of the Services, Channels of Trade, and Classes of
Customers
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration…,” and the third
concerns the “similarity or dissimilarity of established, likely-to-continue trade
channels.” DuPont, 476 F.2d at 1361; Stone Lion Cap. Partners, L.P. v. Lion Cap.
LLP, 746 F.3d 1317, 1322-23 (Fed. Cir. 2014).
A proper comparison under the second DuPont factor “considers whether ‘the
consuming public may perceive [the respective goods or services of the parties] as
related enough to cause confusion about the source or origin of the goods and
services.” In re St. Helena Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting Hewlett-
Packard v. Packard Press, 281 F.3d at 1267). Here, as the Examining Attorney
correctly points out,7 where the respective marks are identical, the degree of
similarity or relatedness between the services needed to support a finding of
likelihood of confusion declines. Samsung Display, 2024 WL 3451873, at *4.
“The relevant inquiry in an ex parte proceeding focuses on the goods and services
described in the application and registration.” In re Charger Ventures LLC, 64 F.4th
7 Examining Attorney’s brief, 8 TTABVUE 5-6.

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1375, 1383 (Fed. Cir. 2023). The respective services, again, are Applicant’s
“educational seminar services, namely, conducting seminars directed toward
personal behavior analysis and emotional self-improvement,” and Registrant’s:
Conducting workshops and seminars, live and online, in the field of
therapeutic spiritual self-healing, specifically targeting the homeless,
inmates, bullies, battered women, religious organizations, and people with
mental dysfunction, but specifically excluding personality identification
programs and workshops and seminars, light therapy, namely, alternative
healthcare modalities utilizing light, and color therapy, namely,
alternative healthcare modalities utilizing color.
The Application and Registration themselves may provide evidence of the
relationship between the services. Monster Energy Co. v. Lo, No. 91225050, 2023 WL
417620, *7 (TTAB 2023). Both recite “seminars,” “a meeting for giving and discussing
information.”8 Applicant’s seminars are directed toward “emotional self-
improvement” and Registrant’s seminars are in the field of “therapeutic spiritual self-
healing” for various groups. “Therapeutic” means “having a beneficial effect on the
body or mind,”9 “spiritual” means “of, relating to, consisting of, or affecting
the spirit,”10 and “self-healing” means “the act or process of healing oneself or
itself.”11
8 Merriam-Webster.com. The Board may take judicial notice of dictionary definitions,
including online dictionaries that exist in printed format or regular fixed editions. Look Cycle
Int’l v. Kunshan Qiyue Outdoor Sports Goods Co., Ltd., No. 92079409, 2024 WL 3739358, *14
n.36 (TTAB 2024).
9 Merriam-Webster.com.
10 Id.
11 Id.

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To demonstrate the relatedness of these services, the Examining Attorney has
adduced Internet evidence of a dozen third-party websites offering these services
under the same mark or trade name.12 For example:
• DailyOM
13
12 Aug. 2, 2023 Office Action at 12-59; Jan. 15, 2025 Office Action at 9-114. Citations to the
prosecution history are to the .pdf versions of Office Actions and Responses to Office Action
on the USPTO’s Trademark Status & Document Retrieval (TSDR) system.
13 DailyOm.com, Aug. 2, 2023 Office Action at 12, 14.

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14
• Path Retreats
15
16
• Lionheart Foundation
17
• Emotional Badass
14 DailyOm.com, Aug. 2, 2023 Office Action at 18.
15 PathRetreats.com, Aug. 2, 2023 Office Action at 24.
16 Id., Aug. 2, 2023 Office Action at 31.
17 LionHeart.org, Jan. 15, 2025 Office Action at 79.

Serial No. 97627407
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18
Third-party evidence of this sort shows how the services are related in kind. See
Hewlett-Packard v. Packard Press, 281 F.3d at 1267 (“whether a single company sells
the goods and services of both parties, if presented, is relevant to a relatedness
analysis….”), quoted in DeVivo v. Ortiz, No. 91242863, 2020 WL 1227592, *14 (TTAB
2020). Applicant’s broadly phrased recitation of seminar services is presumed to
encompass all services of the type identified. Southwestern Mgmt., Inc. v. Ocinomled,
Ltd., No. 94002242, 2015 WL 4464550, *1 (TTAB 2015). And those services, offered
to all comers, substantially overlap with Registrant’s seminar services, directed to
various groups. See In re Detroit Athletic Co., 903 F.3d 1297, 1306 (Fed. Cir. 2018)
(“Thus, while the goods and services are not identical, they substantially overlap,
which weighs in favor of finding a likelihood of confusion.”). This third-party
Internet evidence also shows how the services are promoted and offered together
through the same websites to the same or overlapping classes of consumers. Charger
Ventures, 64 F.4th at 1382 (“Because the record shows that companies are known to
offer both … services under the same mark and, often, on the same website, we find
that substantial evidence supports the Board’s finding on these factors.”); In re
18 EmotionalBadass.com, Jan. 15, 2025 Office Action at 105.

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Toshiba Med. Sys. Corp., No. 79046106, 2009 WL 1896059, *7 (TTAB 2009) (website
evidence shows same or overlapping channels of trade and classes of customers).
Applicant does not directly contravene this third-party evidence, and we find that
the second and third DuPont factors weigh in favor of finding a likelihood of confusion.
C. Consent Agreement and Prior Registration
Applicant focuses on a sole substantive argument: that its predecessor in interest
entered into a Consent Agreement with the Registrant, permitting that predecessor
to register the mark COLORS in standard characters for “educational seminar
services directed toward personal behavior analysis, emotional self-improvement” in
Class 41 (Registration No. 4625366, the “’336 Prior Registration”) coexisting with
Registrant’s cited marks.19 The ’336 Prior Registration, which issued on October 21,
2014, was assigned to Applicant on July 31, 2017,20 and was then cancelled on May
28, 2021 because Applicant’s failed to file a Section 8 declaration of continued use.21
19 Applicant’s main brief, 4 TTABVUE 7-10. Consent Agreement, Oct. 31, 2023 Response to
Office Action at 11-12, July 8, 2025 Response to Office Action/Request for Reconsideration at
9-10; Registration No. 4625366 certificate, Oct. 31, 2023 Response to Office Action at 9, July
8, 2025 Response to Office Action at 7.
20 Instead of providing the assignment documents, Applicant directs our attention to the
USPTO assignment records for the cancelled ’336 Prior Registration. Applicant’s main brief,
4 TTABVUE 7. Generally, records other than that of the subject Application are not
automatically deemed part of the record in an ex parte appeal. See generally TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1208.02 (2025). We do, however,
take a more permissive approach to evidence in ex parte proceedings than in inter partes
proceedings. TBMP § 1208 (“That is, in an ex parte proceeding the Board tolerates some
relaxation of the technical requirements for evidence and focuses instead on the spirit and
essence of the rules of evidence.”). And since the Consent Agreement, which is of record, refers
to the applications that matured into the ’336 Prior Registration and the cited Registrations,
and the Examining Attorney has interposed no objection, we exercise our discretion to
consider their file histories, which include inter alia the proffered assignment.
21 Id.

Serial No. 97627407
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Applicant filed the present Application for the same standard character mark,
COLORS, ultimately reciting “educational seminar services, namely, conducting
seminars directed toward personal behavior analysis and emotional self-
improvement,” over a year later, on October 11, 2022.
From this background, Applicant draws two inferences: (1) “[t]he Consent
Agreement also clearly reflects the parties’ mutual belief that their respective marks
can coexist without causing consumer confusion,”22 and (2) “the Consent Agreement
was executed over 12 years ago, and throughout this entire 12-year time period,
Appellant is unaware of any actual instances of consumer confusion.”23
This argument implicates several DuPont factors—factors concerning the market
interface between the parties (DuPont factor 10), the length of time during and
conditions under which there has been concurrent use without evidence of actual
confusion (DuPont factor 8), and the effect of a prior cancelled registration (DuPont
factor 13). We address each in turn.
A consent agreement “generally refers to an agreement between parties in which
one party (e.g., a prior registrant) consents to the registration of a mark by the other
party (e.g., an applicant for registration of the same mark or a similar mark), or in
which each party consents to the registration of an identical or similar mark by the
other party.” TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP)
§ 1207.01(d)(viii) (2025).
22 Applicant’s main brief, 4 TTABVUE 8.
23 Id.

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As noted, consideration of a consent agreement falls under the tenth DuPont
factor. In re Dare Foods Inc., No. 88758625, 2022 WL 970319, *2 (TTAB 2022). It is,
however, but one of the DuPont factors, and must be considered in conjunction with,
and generally after, the other factors. Id. Considered with the other factors, “a
consent is simply evidence which enters into the likelihood of confusion determination
and may or may not tip the scales in favor of registrability, depending upon the
entirety of the evidence.” In re Bay State Brewing Co., No. 85826258, 2016 WL
1045677, *5 (TTAB 2016).
The weight accorded a consent agreement depends on its detail. “Naked” consent
agreements--which contain little more than consent to registration of an applied-for
mark and an assertion that source confusion is believed to be unlikely—carry little
weight, whereas “clothed” consent agreements—which detail arrangements
undertaken to avoid confusion—are entitled to greater weight. Id. at *5; Dare Foods,
2022 WL 970319, at *9. “[T]he more information that is in the consent agreement as
to why the parties believe confusion to be unlikely, and the more evidentiary support
for such conclusions in the facts of record or in the way of undertakings by the parties,
the more we can assume that the consent is based on a reasoned assessment of the
marketplace, and consequently the more weight the consent will be accorded.” In re
Ye Mystic Krewe of Gasparilla, No. 90522364, 2025 WL 2953731, *7 (TTAB 2025)
(internal citation and punctuation omitted). Specifically, factors to be considered in
weighing a consent agreement include the following:
(1) Whether the consent shows an agreement between both parties;
(2) Whether the agreement includes a clear indication that the goods
and/or services travel in separate trade channels;

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(3) Whether the parties agree to restrict their fields of use;
(4) Whether the parties will make efforts to prevent confusion, and
cooperate and take steps to avoid any confusion that may arise in the
future; and
(5) Whether the marks have been used for a period of time without evidence
of actual confusion.
Id. at *6 (citing inter alia Dare Foods, 2022 WL 970319 at *7 (the “Dare Foods”
factors)).
In this case, the Consent Agreement, a two-page study in concision, provides:
Trademark Consent Agreement
This Trademark Consent Agreement (“Consent”) is made by and between the
following parties, effective on the last date signed below by one of the parties’
(“Effective Date”): True Colors International, a Nevada corporation, having a
business address of 3605 West MacArthur, Suite 702, Santa Ana, California 92704
C’TCI”); and Delsie Howey, an individual having a mailing address of P.O Box 1189,
Wappingers Falls, New York 12590 (“Howey”).
WHEREAS, TCI conducts educational and seminar services directed towards
personal behavior analysis and emotional self-improvement (hereinafter referred to
as “TCI Services”); and
WHEREAS, Howey conducts workshops and seminars, live and online, in the
field of therapeutic spiritual self-healing, specifically targeting the homeless,
inmates, bullies, battered women, religious organizations, and people with mental
dysfunction (hereinafter referred to as “Howey Services”); and
WHEREAS, TCI has adopted and used its TRUE COLORS marks, including
“True Colors”, “Reading Colors”, and “True Colors University”, (collectively the
“TRUE COLORS Marks”) in connection with the TCI Services and is the owner of
U.S. Trademark Registrations Nos., 1,605,983; 2,589,606; and 2.754,171 for the TCI
Services under the TRUE COLORS Marks and U.S Trademark Application Serial
No. 85643944 for the TCI Services under the COLORS mark; and
WHEREAS, Howey has adopted and used “C.O.L.O.R S.” as a word mark and
design for use with its Howey Services, and is the owner of U.S. Trademark
Application Nos., 85/480,175; and 85/474,885 in International Class 041 for
conducting workshops and seminars, live and online, in self-awareness and
spirituality, but specifically excluding workshops and seminars in the field of light
and color therapy, as well as providing both in-person and on-line self-awareness and

Serial No. 97627407
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spiritual counseling services, providing spiritual rehabilitation services, but
specifically excluding light and color therapy (“Howey Applications”); and
WHEREAS, TCl’s Application Serial No. 85643944 for its “COLORS” Mark has
been suspended by the United States Patent and Trademark Office in light of Howey’s
allegedly prior application for the C O.LO.R.S. mark (US. Serial No. 85480175); and
WHEREAS, Howey agrees pursuant to paragraph 1 of the Parties’ Trademark
Coexistence Agreement to file an amendment to its description of goods in
International Class 041 for the Howey Applications as follows: “Conducting
workshops and seminars, live and online, in the field of therapeutic spiritual self-
healing, specifically targeting the homeless, inmates, bullies, battered women,
religious organizations, and people with mental dysfunction, but specifically
excluding personality identification programs and workshops and seminars, light
therapy namely alternative healthcare modalities utilizing light, and color therapy
namely alternative healthcare modalities utilizing color.” (Hereinafter collectively
referred to as the “Amended Howey Applications.”)
WHEREAS, the parties believe the use of their respective marks can coexist
without consumer confusion and desire to provide for the continued use and
registration of their marks as set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Howey consents to and agrees not to object to or oppose TCI’s use or
registration of the TRUE COLORS Marks and TCI’s use or registration of
the “COLORS” mark (Serial No. 85643944) in connection with the TCI
Services, specifically for “educational seminar services directed toward
personal behavior analysis, emotional self-improvement”,
2. The terms and conditions of this Agreement shall inure to the benefit of and
be binding and enforceable against each Party’s agents, successors,
licensees, assignees, and other present or future parties in interest.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement by
their authorized representatives.

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24
Under the first Dare Foods factor, Applicant, again, is the assignee of Application
Serial No. 85643944 (the subject of the Consent Agreement) which matured into the
’336 Prior Registration. Although the ’336 Prior Registration is cancelled, Applicant
nonetheless maintains that the agreement evinces the parties’ shared belief that
their respective marks could coexist without confusion. Specifically, Applicant
maintains that the last recital, “WHEREAS, the parties believe the use of their
respective marks can coexist without consumer confusion…,” expressed their belief
that the marks can coexist, not just the registrations.25 Applicant further maintains
that its current Application is for the same mark and services as in the ’336 Prior
Registration.26 We agree that the current applied-for mark—COLORS in standard
characters—is the same, and find that the services “educational seminar services,
namely, conducting seminars directed toward personal behavior analysis and
emotional self-improvement,” though minimally altered at the Examining Attorney’s
behest, are essentially the same as in the ’336 Prior Registration.
In determining whether this Consent Agreement evinces the parties’ shared belief
that their respective marks could coexist without confusion:
24 Consent Agreement, Oct. 31, 2023 Response to Office Action at 11-12, July 8, 2025
Response to Office Action at 9-10.
25 Applicant’s main brief, 4 TTABVUE 9 (emphasis added).
26 Id.

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At bottom, we must look at all of the surrounding circumstances … to
determine if the consent reflects the reality of no likelihood of confusion in
the marketplace, or if the parties struck a bargain that may be
beneficial to their own interests, regardless of confusion to the
public.
In re Mastic Inc., 829 F.2d 1114, 1116-17 (Fed. Cir. 1987) (emphasis added), quoted
in Mystic Krewe of Gasparilla, 2025 WL 2953731, at *6.
This case appears to present more of the latter than the former. The Consent
Agreement ominously alludes to Applicant’s assignor’s then-subsisting registrations
for TRUE COLORS, and the USPTO’s suspension of the assignor’s application to
register COLORS “in light of Howey’s allegedly prior application.” Tellingly, when
the parties’ applications progressed to registration, Registrant’s two registrations for
COLORS claimed dates of first use and use in commerce of November 21, 2011,
whereas the ’336 Prior Registration claimed dates of first use and first use in
commerce three years earlier, in 2008—posing a priority issue. Registrant (whose
applications were still pending) corresponded with the examining attorney reviewing
those applications: “To avoid litigation with a third party, the Applicant in the above
referenced application has agreed to limit and further restrict her description of
services in class 41.”27 But once Applicant’s ’336 Prior Registration was cancelled (as
were its TRUE COLORS registrations), and Registrant’s two Registrations became
incontestable, Applicant has shown no inclination on Registrant’s part to grant
consent to Applicant’s new Application. The silence is conspicuous. This tends to
27 June 6, 2013 Note to File with correspondence from Registrant’s (then applicant) counsel
re Application Serial No. 85474885, which matured into cited Registration No. 4407643.

Serial No. 97627407
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evince a prior consent agreement based on personal interest rather than concern for
averting public confusion. Id.
Under the second and third Dare Foods factors, we consider whether the
agreement includes a clear indication that the services travel in separate trade
channels, and whether the parties agreed to restrict their fields of use. Dare Foods,
2022 WL 970319 at *7. Registrant agreed to amend her recitation of services to
identify groups to whom she offered her services. But as we have seen, Applicant’s
broadly-phrased recitation of services encompasses those very same groups, for
services offered under identical marks, through unrestricted and overlapping
channels of trade. See Mastic, 829 F.2d at 1118 (“The statement in the consent that
the parties considered the ‘dissimilarity’ in their trade channels is as vacuous as the
statement that they considered the ‘dissimilarity’ of their respective marks which are,
in fact, identical, even to the extent of having the same phonetic spelling.”). “[T]here
is no indication that the [services] will travel in separate trade channels, nor any
agreement that the parties will sell in separate trade channels or otherwise restrict
their fields of use.” Mystic Krewe of Gasparilla, 2025 WL 2953731 at *8.
The fourth and fifth Dare Foods factors concern: whether the parties will make
efforts to prevent confusion, and cooperate and take steps to avoid any confusion that
may arise in the future; and whether the marks have been used for a period of time
without evidence of actual confusion. Dare Foods, 2022 WL 970319 at *7. Here,
Applicant asserts that “the Consent Agreement was executed over 12 years ago, and
throughout this entire 12-year time period, Appellant is unaware of any actual

Serial No. 97627407
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instances of consumer confusion.”28 This assertion (which implicates the eighth
DuPont factor, as well) is just that: an unproven assertion by Applicant’s counsel:
The 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 WL 1182924, *7 (TTAB 2001).
Applicant’s difficulty in proving lack of actual confusion is compounded in two
ways. First, its uncorroborated assertion is made by its counsel. See Cai v. Diamond
Hong, Inc., 901 F.3d 1367 (Fed. Cir. 2018) (“Attorney argument is no substitute for
evidence.”). And second, the Consent Agreement contains no provision obliging the
parties to notify and cooperate with one another in the event one becomes aware of
consumer confusion. Consequently, Registrant’s silence on this issue may not be
taken as a concession that there has been no actual confusion.
In short, on consideration of all applicable circumstances and evidence, we find
that the Consent Agreement “has no effect on the likelihood of confusion.” In re
Permagrain Prods., Inc., No. 73268400, 1984 WL 62813, *2-3 (TTAB 1984). Contrary
to Applicant’s position, the Consent Agreement does not establish that its signatory
parties had good reason to view public confusion as unlikely; and it does not establish
a lack of actual confusion during the parties’ contemporaneous registration of their
marks. In light of these facts, we find that “[t]he tenth DuPont factor does not
28 Applicant’s main brief, 4 TTABVUE 8.

Serial No. 97627407
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outweigh all of the other relevant DuPont factors, which weigh heavily in favor of a
conclusion of likelihood of confusion.” Mystic Krewe of Gasparilla, 2025 WL 2953731
at *11.
That leaves one further consideration: the effect, if any, of the ’336 Prior
Registration. Cases involving prior registrations arise under the thirteenth DuPont
factor, which pertains to “any other established fact probative of the effect of use,”
DuPont, 476 F.2d at 1361. “This du Pont factor is highly fact specific and it is under
very specific circumstances that this factor may matter.” In re Country Oven, Inc.,
No. 87354443, 2019 WL 6170483, at *10 (TTAB 2019).
“Where an applicant owns a prior registration and the mark is ‘substantially the
same’ as in the applied-for application, this can weigh against finding that there is a
likelihood of confusion.” In re Embiid, No. 88202890, 2021 WL 2285576, *20 (TTAB
2021) (citing In re Strategic Partners Inc., No. 77903451, 2012 WL 1267930, *3 (TTAB
2012)). But “there is no rule that a prior registration entitles a party to another
registration.” Country Oven, 2019 WL 6170483, at *10.
In Strategic Partners, the Board found that:
Applicant’s registered mark, a mark that is substantially similar to the
applied-for mark, both covering “footwear,” has coexisted with the cited
mark for over five years. At this stage, applicant’s existing registration is
over five years old, and thus is not subject to attack by the owner of the
cited registration on a claim of priority and likelihood of confusion. … We
find that these facts tip the scale in favor of applicant and a finding of no
likelihood of confusion.
Strategic Partners, No. 77903451, 2012 WL 1267930, at *3 (internal citation omitted).
But here, unlike Strategic Partners, Applicant’s prior registration has been cancelled.
Applicant’s earlier registration is not an “existing registered mark” and the “unique

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situation” of Strategic Partners is not present here. Id. at *4. The cancelled
registration is not entitled to any of the presumptions of Section 7(b) of the
Trademark Act, 15 U.S.C. § 1057(b). Embiid, 2021 WL 2285576, at *17n.48. See
Anderson, Clayton & Co. v. Krier, 478 F.2d 1246, 1248 (CCPA 1973) (“Whatever
benefits a registration conferred upon appellee were lost by him when he negligently
allowed his registration to become canceled.”); In re Hunter Publ’g Co., 1979 WL
24907, *6 (TTAB 1979) (cancellation “destroys the Section [7(b)] presumptions and
makes the question of registrability ‘a new ball game’ which must be predicated on
current thought.”).
Applicant returns to the issue of the Consent Agreement: “[I]f the purported
shortcomings in the verbiage of the Consent Agreement are truly fatal to its efficacy,
then why was it previously deemed acceptable to facilitate the maturation of Serial
No. 85/643,944 into the now cancelled ’336 Registration?”29 Ultimately, the Board
must decide each case on its own merits; the Office’s allowance of a
prior registration does not bind it. In re Nett Designs Inc., 236 F.3d 1339, 1342 (Fed.
Cir. 2001). “While it must consider each factor for which it has evidence, the Board
may focus its analysis on dispositive factors, such as similarity of the marks and
relatedness of the [services].” Han Beauty v. Alberto-Culver, 236 F.3d at 1336. In this
case, we focus our analysis on the identical nature of the marks and the overlapping
nature of the services, channels of trade and classes of consumers. The tenth, eighth,
and thirteenth DuPont factors are neutral, and do not tip the balance of the
29 Applicant’s main brief, 4 TTABVUE 10.

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other DuPont factors.
II. Conclusion
On careful consideration of the applicable law, arguments, and evidence, we find:
that the marks’ identicality weighs heavily in favor of finding a likelihood of confusion
under the first Dupont factor; that Applicant’s broadly-phrased recitation of services
encompasses Registrant’s recited services, offered through unrestricted and
overlapping channels of trade to overlapping groups of consumers, such that the
second and third DuPont factors weigh in favor of a likelihood of confusion; and that
the Consent Agreement, considered in light of Strategic Partners, does not tip the
balance of the first through third DuPont factors, as the tenth, eighth, and
thirteenth DuPont factors are neutral.
We find accordingly that there is a likelihood of confusion under Section 2(d). 15
U.S.C. § 1052(d).
Decision: The refusal to register Applicant’s COLORS mark is affirmed.