Good Sportsman Marketing, L.L.C.

This Opinion is Not a
Precedent of the TTAB
Mailed: June 3, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Good Sportsman Marketing, L.L.C.
_____
Serial No. 98897724
_____
Usha Menon of D’Ambrosio & Menon, PLLC,
for Good Sportsman Marketing, L.L.C.
Heather Kennedy, Trademark Examining Attorney, Law Office 120,
Joshua Toy, Managing Attorney.
_____
Before Lykos, Pologeorgis and Brock,
Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
Good Sportsman Marketing, L.L.C. (“Applicant”) seeks to register on the
Principal Register the standard character mark THRESHER WORM (WORM
disclaimed) for “Artificial fishing bait; fishing lures” in International Class 28.1
1 Application Serial No. 98897724, filed December 11, 2024 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system in Portable Document Format (“PDF”). Citations to the record
also include references to TTABVUE, the Board’s online docketing system.

Serial No. 98897724
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Applicant appealed the Trademark Examining Attorney’s final refusal to register
the mark on the grounds that Applicant’s mark so resembles the registered standard
character mark THRASHER RODS (RODS disclaimed) on the Principal Register for
“Fishing rod blanks; Fishing rod handles; Fishing rods; Rods for fishing; Fishing
gaffs; Structural parts of fishing rods, namely, Grips, Rings, Reel seats” in
International Class 28, that it is likely to cause confusion or mistake or to deceive
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d).2
Applicant filed a notice of appeal and requested reconsideration of the final
refusal. The Examining Attorney denied the request. The appeal is briefed.3 For the
reasons explained below, we affirm the refusal to register.
I. Evidentiary Issues
Applicant attached evidence to its brief consisting of (1) dictionary definitions of
the words “thresher” and “thrasher” from the online version of THE MERRIAM-
This opinion cites decisions of the U.S. Court of Appeals for the Federal Circuit and the U.S.
Court of Customs and Patent Appeals by the pages on which they appear in the Federal
Reporter (e.g., F.2d, F.3d, or F.4th). For Board decisions, this opinion uses citations to the
Lexis® legal database, as well as the TTABVUE proceeding number, where available. See
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 101.03(a)(2) (2025)
for acceptable citation options to cases.
2 Registration No. 7259447, registered on January 2, 2024.
3 Applicant’s brief may be found at 6 TTABVUE 20-47. Applicant submitted with its brief
third-party registrations that were previously made of record with its Request for
Reconsideration. The Board discourages this practice because it requires additional time to
compare the registrations against the record to determine admissibility. See In re Info.
Builders Inc., No. 87753964, 2020 TTAB LEXIS 20, at *5 n.4 (attaching previously submitted
evidence to an appeal brief is unnecessary and impedes efficient disposition of the appeal by
the Board), appeal voluntarily dismissed, No. 20-1979 (Fed. Cir. Oct. 20, 2020); accord In re
Jimenez, No. 97551823, 2025 TTAB LEXIS 441, at *14. Applicant also submitted previously
objected-to materials with its brief; these submissions are addressed in Section I
(“Evidentiary Issues).

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WEBSTER DICTIONARY; and (2) an article originally published by Oxford University
Press (2025) posted on the website blog.oup.com entitled “Crossing the threshold:
Why “thresh – thrash?” by Anatoly Liberman.4 These are the same materials that
Applicant submitted with its Request for Reconsideration.5 The Examining Attorney
objected to this evidence in the Denial of the Request for Reconsideration because
neither screen capture displays the complete URL or specifies the date it was
downloaded or accessed.6 The Examining Attorney repeats the objection in her brief
to the article but not the dictionary definitions.7
The Board may take judicial notice of dictionary definitions. See TBMP § 1208.04
and cases cited therein. We exercise our discretion to do so here because Applicant
identified the source and supplied printouts of the definitions. Cf. Omaha Steaks Int’l,
Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1324 (Fed. Cir. 2018) (party
requesting judicial notice must provide the necessary information). We have therefore
considered the dictionary definitions in making our determination.
We reach a different result, however, with regard to the article posted on the
website blog.oup.com entitled “Crossing the threshold: Why “thresh – thrash?” by
Anatoly Liberman. The Examining Attorney’s objection is sustained for the reasons
provided, namely that the screenshot does not display the complete URL or specify
4 Applicant’s Brief, 6 TTABVUE 2-19.
5 August 1, 2025 Request for Reconsideration at TSDR 4-12.
6 September 15, 2025 Denial of Request for Reconsideration at TSDR 3.
7 Examining Attorney’s Brief, 8 TTABVUE 6.

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the date it was downloaded or accessed.8 See In re I-Coat Co., LLC, No. 86802467,
2018 TTAB LEXIS 171, at *9. The article has been given no consideration.
II. Likelihood of Confusion
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. In re E.
I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in
B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015); see also In re
Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023); In re Majestic Distilling
Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). We have considered each DuPont factor for
which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376,
1379 (Fed. Cir. 2019). When analyzing these factors, the overriding concerns are not
only to prevent buyer confusion as to the source of the goods, but also to protect the
registrant from adverse commercial impact due to use of a similar mark by a
newcomer. See In re Shell Oil Co., 992 F.2d 1204, 1207 (Fed. Cir. 1993).
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, 1353 (Fed.
Cir. 2011). “Each case must be decided on its own facts and the differences are often
8 September 15, 2025 Denial of Request for Reconsideration at TSDR 3.

Serial No. 98897724
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subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973). In
any likelihood of confusion analysis, two key considerations are the first and second
DuPont factors, 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) (citing Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)); see also In re Embiid,
No. 88202890, 2021 TTAB LEXIS 168, at *10 (“[T]he fundamental inquiry mandated
by § 2(d) goes to the cumulative effect of differences in the essential characteristics of
the goods and differences in the marks.”) (quoting Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976)). These factors, as well as
others, are discussed below.
A. The Marks
We commence with the first DuPont factor, the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression. See, e.g., Charger Ventures, 64 F.4th at 1380 (citing DuPont, 476 F.2d at
1361); Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396
F.3d 1369, 1371 (Fed. Cir. 2005) (same). “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 *21-24), aff’d per curiam, 777 F. App’x 516 (Fed. Cir. 2019);
accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968) (“It
is sufficient if the similarity in either form, spelling or sound alone is likely to cause

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confusion.”) (citation omitted).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d 747, 751 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d
1340, 1344 (Fed. Cir. 2003)). The proper test regarding similarity “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 [Registrant and Applicant].” Cai v.
Diamond Hong, Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018) (quoting Coach Servs. Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012) (internal quotation
marks and citation omitted)).
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, the decision must be based on the entire marks, not just part of
the marks. In re Nat’l Data Corp., 753 F.2d 1056 (Fed. Cir. 1985); see also Franklin
Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981) (“It is axiomatic that
a mark should not be dissected and considered piecemeal; rather, it must be
considered as a whole in determining likelihood of confusion.”). “No element of a mark
is ignored simply because it is less dominant, or would not have trademark
significance if used alone.” In re Electrolyte Labs. Inc., 929 F.2d 645, 647 (Fed. Cir.
1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293 (CCPA
1974)).
We now compare Applicant’s mark THRESHER WORM with the cited mark
THRASHER RODS, both in standard characters. Applicant argues that the marks

Serial No. 98897724
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look and sound different because the first words are visually dissimilar, and the
second word in each mark, “worm” and “rods” are completely different in sound and
appearance. Applicant also contends that the marks differ in connotation and
commercial impression because “thresher” is a species of shark or a type of
agriculture machinery used to separate grains from stalk or husks whereas
“thrasher” is a bird species or a moniker for an avid skateboarder.
Applicant’s arguments are unconvincing. Both marks are comprised of two words
and end with a single, monosyllabic word making them similar in structure and
cadence. Each begin with THRESHER or THRASHER, which is the portion of the
mark consumers are most likely to recall. See Palm Bay, 396 F.3d at 1372 (finding
VEUVE ROYALE and two VEUVE CLICQUOT marks similar in part because
“VEUVE . . . remains a ‘prominent feature’ as the first word in the mark and the first
word to appear on the label”). THRESHER and THRASHER are highly similar in
sound and appearance, with the only distinction being the substitution of the letter
“A” for the letter “E.” Applicant points to different meanings attributed to each word,
but overlooks that the record also shows that THRESHER and THRASHER may be
synonyms.9 When used as an intransitive verb, the word “thrash” is defined as “to
move or stir about violently: toss about” or “thresh.”10 The second words in each mark,
WORM and RODS, are different in sound and appearance, but each is associated with
9 September 15, 2025 Denial of Request for Reconsideration (entry for definition of “thrasher”
from Dictionary.com at TSDR 9; entry for “Synonyms of Thresher” from Power Thesaurus.org
at TSDR 13; and entry for “Synonyms of Thrasher” from Thesaurus.Plus at TSDR 19).
10 May 2, 2025 Final Office Action (entry for the definition of “thrash” from the online version
of THE MERRIAM-WEBSTER DICTIONARY at TSDR 9).

Serial No. 98897724
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fishing. “Worms” are a type of bait or lure and “rods” is a shorthand for “fishing rods,”
making the marks overall similar in connotation and commercial impression. Even
when the wording is different, as it is here, if the marks convey the same connotation
or commercial impression, they may still be similar. See, e.g., Proctor & Gamble Co.
v. Conway, 419 F.2d 1332, 1335 (CCPA 1970) (holding MISTER STAIN likely to be
confused with MR. CLEAN on cleaning products because the words “stain” and
“clean” “pertain to a state of relative cleanliness”); In re M. Serman & Co., 1984 TTAB
LEXIS 74, at *3 (holding CITY WOMAN for ladies’ blouses likely to be confused with
CITY GIRL for a variety of female clothing); H. Sichel Sohne, GmbH v. John Gross &
Co., 1979 TTAB LEXIS 70, at *10 (holding BLUE NUN for wines likely to be confused
with BLUE CHAPEL for the same goods noting that “the prayer activity and
meditation in the daily life of a nun very frequently takes place in a rather small
edifice or structure known as a chapel”). Considered within that context, THRESHER
WORM and THRASHER RODS convey the same imagery of a fish splashing in the
water or resisting being reeled in by a rod after being lured by bait.
Another point of similarity is that both marks are in standard characters meaning
that they may be used in the same size, color or stylized font. In re Viterra, Inc., 671
F.3d 1358, 1364-65 (Fed. Cir. 2012) (a standard character mark may be depicted in
any font style, size, or color, and not merely “reasonable manners” of depicting such
mark)
Overall, the marks are similar in appearance and sound, and project a similar
connotation and commercial impression. Consumers “have but dim recollections from

Serial No. 98897724
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having previously seen or heard one or the other of the involved marks.” Neutrogena
Corp. v. Bristol-Myers Co., 410 F.2d 1391, 1393 (CCPA 1969). The first DuPont factor
weighs in favor of finding a likelihood of confusion.
B. The Goods
Next we consider the second DuPont factor, the similarity of the goods based on
the identifications in the application and cited registration. See In re Detroit Athletic
Co., 903 F.3d 1297, 1307 (Fed. Cir. 2018); Stone Lion Cap. Partners, L.P. v. Lion Cap.
LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc.,
281 F.3d 1261, 1267 (Fed. Cir. 2002).
This DuPont factor “considers whether the consuming public may perceive the
respective goods [ ] of the parties as related enough to cause confusion about the
source or origin of the goods.” Naterra Int’l, Inc. v. Bensalem, 92 F.4th 1113, 1117
(Fed. Cir. 2024) (internal citation omitted). Evidence of relatedness may include news
articles and/or evidence from computer databases showing that the relevant goods
are used together or used by the same purchasers; advertisements showing that the
relevant goods are advertised together or sold by the same manufacturer or dealer;
and/or copies of prior use-based registrations of the same mark for both an applicant’s
goods and the goods listed in the cited registration. See, e.g., Davia, 2014 TTAB
LEXIS 214, at *15-18 (finding pepper sauce and agave “functionally related” where
evidence showed both were used for the same purpose in the same recipes and thus
consumers were likely to encounter and purchase the products at the same time and

Serial No. 98897724
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in the same stores).11
Applicant maintains that its goods are “completely unrelated” to the identified
goods in the cited mark.12 We disagree. The Examining Attorney has shown that the
goods are related through third-party evidence. The Examining Attorney made of
record three valid and subsisting use-based, third-party registrations showing that
the same entities have registered single marks identifying Applicant’s “artificial
fishing bait” and/or “fishing lures” on one hand, and Registrant’s “fishing rods” or
“rods for fishing” on the other.13 Third-party registrations that cover goods from both
a cited registration and an applicant’s application are relevant to show that the goods
are of a type that may emanate from a single source under one mark. In re Guild
Mortg. Co., 86709944, 2020 TTAB LEXIS 17, at *13; In re Mucky Duck Mustard Co.,
No. 603019, 1988 TTAB LEXIS 11, at *6-7, aff’d per curiam, 864 F.2d 149 (Fed. Cir.
1988).
The Examining Attorney also submitted three examples of third-party
marketplace uses showing consumer exposure to “artificial fishing baits” and “fishing
11 Applicant also argues that the goods are unrelated due to the “huge difference in the pricing
between fishing rods and artificial fishing baits …” Applicant’s Brief, 6 TTABVUE 36. Such
arguments implicate the fourth DuPont factor and have been considered in that section of
our opinion.
12 Applicant’s Brief, 6 TTABVUE 36.
13 May 2, 2025 Final Office Action, at TSDR 36-43 (Registration Nos. 3596015, 4965099,
4371362). The Examining Attorney also made of record with the Final Office Action
Registration No. 2931714 which was subsequently cancelled on September 19, 2025 for
failure to file a Section 8 affidavit/declaration of use or excusable nonuse. See Harry Winston
Inc. v. Bruce Winston Gem Corp., No. 91153147, 2014 TTAB LEXIS 284, at *11 n.19 (taking
judicial notice of change in status and title of pleaded registrations that were properly
introduced). As a result, we have not considered this registration.

Serial No. 98897724
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rods” from a common source under the same trademark. See Detroit Athletic. Co., 903
F.3d at 1307 (crediting third-party website evidence that retailers use the same mark
for the goods at issue because “[t]his evidence suggests that consumers are
accustomed to seeing a single mark associated with a source that sells both”). Jigging
Worlds offers various types of fishing rods and artificial hard bait under the
trademarks “Jigging” and/or “Jigging World;”14 Handing offers a variety of fishing
rods and fishing lures all under the “HANDING” trademark;15 and Savage Gear
manufactures fishing rods and artificial baits under the trademark “Savage Gear.”16
We further find based on the description of the goods in the application and cited
registration that Applicant’s “Artificial fishing bait; fishing lures” and Registrant’s
“Fishing rod blanks; Fishing rod handles; Fishing rods; Rods for fishing; Fishing
gaffs; Structural parts of fishing rods, namely, Grips, Rings, Reel seats” are
complementary goods since they are used together for fishing. See In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1567 (Fed. Cir. 1984) (finding bread and
cheese relatedness through complementary use).
The Examining Attorney has met the Office’s burden of showing that the goods
are related or otherwise complementary products. The second DuPont factor weighs
14 May 2, 2025 Final Office Action at TSDR 27-33 (printouts from www.jiggingworld.com).
15 January 21, 2025 Office Action at TSDR 29-40 (printouts from www.handingfishing.com).
16 May 2, 2025 Final Office Action at TSDR 17-19 (printouts from the online retailer PURE
FISHING at www.purefishing.com offering for sale Savage Gear fishing rods and artificial
baits).

Serial No. 98897724
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in favor of finding a likelihood of confusion.
C. The Established, Likely-to-Continue Channels of Trade
This brings us to the third DuPont factor, “the similarity or dissimilarity of
established, likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. This
DuPont factor addresses the question of whether the goods move from producer to
consumer in the same commercial pathways (e.g., brick-and-mortar retail stores,
online specialty retailers, or wholesale distributorships). As with the second DuPont
factor, we are guided by the language in the identification of the application and cited
registration. See In re Detroit Athletic Co., 903 F.3d at 1307; Stone Lion, 746 F.3d at
1323; Hewlett-Packard, 281 F.3d at 1267.
Neither the registration nor the application contains any limitations on the
channels of trade, or classes of purchasers. As such, Applicant’s and Registrant’s
goods presumptively move in all normal trade channels and to consumers that
purchase such goods. See Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719
F.3d 1367, 1373 (Fed. Cir. 2013). The record demonstrates that the normal trade
channels for Applicant’s and Registrant’s goods are the same, namely, online retail
websites specializing in fishing equipment, such as from Pure Fishing,17 Berkley,18
17 May 2, 2025 Final Office Action at TSDR 17-19 (printouts from www.purefishing.com
offering for sale fishing rods by Fenwick and Savage Gear as well as Savage Gear artificial
bait).
18 January 21, 2025 Office Action at TSDR 19-27 (printouts from www.berkley-fishing.com
offering for sale artificial bait and fishing rods).

Serial No. 98897724
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Tsunami19 and Lake Effectures,20 which carry such items from various brands. It also
includes the retail websites discussed above under the second DuPont factor.
Collectively, this evidence shows that the classes of consumers overlap.
The third DuPont factor also favors a likelihood of confusion.
D. Purchasing Conditions
Turning now to Applicant’s arguments concerning the retail price of the goods,
Applicant points to the record which purportedly shows fishing rods ranging from
$109.99 to $169.95 to $379.95, while artificial fishing baits and lures range from $4.25
to $10.99 to $29.95 per pack.21 Applicant argues that consumers shopping for
artificial fishing baits and lures would not be confused when encountering fishing
rods and structural parts which are more expensive.
Applicant’s arguments implicate the fourth DuPont factor which evaluates “[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. A heightened degree of care
when making a purchasing decision may tend to minimize likelihood of confusion.
See, e.g., In re N.A.D., Inc., 754 F.2d 996, 999-1000 (Fed. Cir. 1985) (because only
sophisticated purchasers exercising great care would purchase the relevant goods,
there would be no likelihood of confusion merely because of the similarity between
19 January 21, 2025 Office Action at TSDR 42-53 (printouts from www.tsunami.com offering
for sale artificial bait and fishing rods).
20 May 2, 2025 Final Office Action at TSDR 22-26 (printouts from the online retailer
www.lakeeffectures.com offering for sale specialized fishing rods for ice fishing by the brands
Predator, Pannie Rocker, Elite and Eye Sickle as well as artificial UV/glow bait).
21 Applicant’s Brief, 6 TTABVUE 36.

Serial No. 98897724
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the marks NARCO and NARKOMED). Conversely, impulse purchases of inexpensive
goods may tend to have the opposite effect. Palm Bay Imps., 396 F.3d at 1376.
The relatively higher cost of fishing rods vis-à-vis artificial baits reflected in the
record does not obviate the likelihood of confusion. This is because the respective
identifications are unrestricted as to classes of purchasers and price. See
Cunningham, 222 F.3d at 948 (affirming Board finding that where the identification
is unrestricted, “we must deem the goods to travel in all appropriate trade channels
to all potential purchasers of such goods”). We must therefore assume that
Applicant’s and Registrant’s fishing equipment products are available to all members
of the general public, including ordinary consumers of such products at all price
points. This would include not only avid fishing enthusiasts and expert professionals,
but also the novice hobbyist. While some of these consumers might be highly
sophisticated and knowledgeable about fishing, others may be new to the activity.
Basing our analysis “on the least sophisticated potential purchasers,” Stone Lion, 746
F.3d at 1325, this DuPont factor is neutral.
E. Fame of the Prior Mark
We now direct our attention to Applicant’s arguments surrounding the “fame of
the prior mark,” the fifth DuPont factor. DuPont, 476 F.2d at 1361. Applicant
contends that because “[t]here is no evidence of record that the cited mark,
THRASHER RODS,” this factor weighs against a likelihood of confusion.
Applicant is mistaken. The Board explicitly rejected this line of argument in In re

Serial No. 98897724
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Thomas, No. 78334625, 2006 TTAB LEXIS 135, at *18 n. 11:
It appears that applicant contends that the absence of
evidence of fame of the registrant’s mark should be treated
as a factor in applicant’s favor. Because this is an ex parte
proceeding, we would not expect the examining attorney to
submit evidence of fame of the cited mark. This du Pont
factor, as is normally the case in ex parte proceedings, must
be treated as neutral.
We therefore deem this factor neutral and do not weigh it against a likelihood of
confusion as Applicant urges.
F. The Number and Nature of Similar Marks in Use on Similar Goods
Next, we address the number and nature of similar marks in use on similar goods
under the sixth DuPont factor. DuPont, 476 F.2d at 1361. This factor “is a measure
of the extent to which other marks weaken the assessed mark,” Spireon, Inc. v. Flex
Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023), and indicates whether it is “entitled to only
a narrow scope of protection.” Omaha Steaks Int’l, 908 F.3d at 1324 (quoting Palm
Bay, 396 F.3d at 1373). “When a field is crowded with similar marks, the theory is
that customers will be more adept at distinguishing marks from each other and are
less likely to be confused by similar marks.” Apex Bank v. CC Serve Corp., 156 F.4th
1230, 1235 (Fed. Cir. 2025) (citing Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d
1334, 1338 (Fed. Cir. 2015)).
“[T]he strength of a mark is not a binary factor” and “varies along a spectrum from
very strong to very weak.” Id. (internal citations omitted). “The weaker [the
registrant’s] mark, the closer [an applicant] mark can come without causing a
likelihood of confusion and thereby invading what amounts to its comparatively
narrower range of protection.” Id. (internal citations omitted).

Serial No. 98897724
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In determining the strength or weakness of a mark, we consider both its inherent
or conceptual strength, based on the nature of the mark itself, and, if there is evidence
in the record of marketplace recognition of the mark, its commercial or marketplace
strength. Spireon, 71 F.4th at 1362 (“There are two prongs of analysis for a mark’s
strength under the sixth factor: conceptual strength and commercial strength.”)
(citing In re Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010)).
Conceptual strength “is a measure of a mark’s distinctiveness, Chippendales, 622
F.3d at 1353, and distinctiveness is ‘often classified in categories of generally
increasing distinctiveness[:] ... (1) generic; (2) descriptive; (3) suggestive; (4)
arbitrary; or (5) fanciful.’” Spireon, 71 F.4th at 1362 (quoting Two Pesos, Inc. v. Taco
Cabana, Inc., 505 U.S. 763, 768 (1992)). “Commercial strength, on the other hand, is
the marketplace recognition value of the mark,” Spireon, 71 F.4th at 1362 (internal
citation and quotation marks omitted), and “whether consumers in fact associate the
... mark with a unique source.” Id. In this regard, the purpose of introducing evidence
of third-party marketplace use is “to show that customers have become so conditioned
by a plethora of such similar marks that customers ‘have been educated to distinguish
between different [such] marks on the bases of minute distinctions.’” Omaha Steaks,
908 F.3d at 1325 (quoting Palm Bay, 396 F.3d at 1373-74). Thus, an applicant in an
ex parte appeal can contract the scope of protection otherwise accorded a cited mark
by adducing evidence of conceptual and/or commercial weakness. In this case,
Applicant challenges only the cited mark’s conceptual strength and did not argue or
present evidence regarding the cited mark’s commercial strength.

Serial No. 98897724
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The cited mark is registered on the Principal Register without a claim of acquired
distinctiveness, and thus carries a presumption under Trademark Act Section 7(b),
15 U.S.C. § 1057(b), that it is inherently distinctive. See, e.g., New Era Cap Co. v. Pro
Era, LLC, No. 91216455, 2020 TTAB LEXIS 199, at *29. This does not, however,
prevent Applicant from disputing the mark’s conceptual strength.
As noted above, the record includes six (6) third-party registrations purporting to
show conceptual weakness of the segment THRASHER in the cited mark:
THRESHER for “swimwear and wetsuits” (Registration No. 5424441); THRASHER
and design for various items of “men’s, women’s, junior’s and children’s clothing”
(Registration No. 6869776); THRESHER & GLENNY for various clothing items as
well as “tailoring services; cloth cutting; custom manufacturing of clothing”
(Registration No. 4409093); THRASHER for various items of men’s, women’s, junior’s
and children’s clothing (Registration No. 3371116); THRASHER for “all purposes
sports bags, gym bags; backpacks” (Registration No. 2488833); and THRASHER for
“watches; lapel pins, ornamental pins” (Registration No. 2431047).22
Third-party registrations may “prove that some segment of a mark has a normally
understood and well recognized descriptive or suggestive meaning, leading to the
conclusion that that segment is relatively weak” in connection with the goods or
services. Juice Generation, 794 F.3d at 1339 (internal quotation omitted). Even if
“there is no evidence of actual use” of “third-party registrations,” such registrations
“may be given some weight to show the meaning of a mark in the same way that
22 6 TTABVUE 10-19.

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dictionaries are used.” Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 917 (CCPA
1976).
Based on our determination under the first DuPont factor that “thresher” and
“thasher” are synonyms, the marks in each third-party registration are relevant. But
to fully assess the probative value of the remaining third-party registrations, a
“controlling inquiry is the extent of third-party marks in use on ‘similar’ goods or
services’ offered to ‘the relevant public.’” Omaha Steaks, 908 F.3d at 1324 (citing
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir.
1992)); see also Apex Bank, 156 F.4th at 1236. None of the goods or services identified
in each of the six third-party registrations are “similar” to fishing equipment such as
fishing rods, bait, hooks.
Applicant has not shown that the cited mark is conceptually weak in connection
with the identified goods in the cited registration. The sixth DuPont factor is neutral.
G. The Extent of Potential Confusion
Applicant points to “[t]he extent of potential confusion, i.e., whether de minimis
or substantial,” DuPont, 476 F.2d at 1361, as a factor mitigating against a likelihood
of confusion. This twelfth factor is a prospective inquiry, not retrospective.
Applicant merely incorporates by reference its earlier arguments to assert that
the extent of possible confusion is de minimis.23 These arguments concerning the
other DuPont factors have no bearing on the extent of potential confusion.
Furthermore, Applicant filed its application based on a bona fide intent to use the
23 Applicant’s Brief, 6 TTABVUE 44.

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mark in commerce, and the record is devoid of evidence regarding the actual
coexistence in the marketplace of Applicant and Registrant. As a result, we have no
basis for predicting the potential for confusion. We therefore deem this DuPont factor
neutral.
H. Applicant’s Intent
Lastly, we consider Applicant’s contention that because it “was unaware of and
had no intent to trade upon the registrants’ reputation in adopting a similar mark,”24
this weighs against a likelihood of confusion. Applicant’s argument falls under the
thirteenth “catch-all” DuPont factor of “any other established fact probative of the
effect of use.” See Quicktrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 1038 (Fed.
Cir. 2021) (considering bad faith intent under the thirteenth DuPont factor). While
proof of bad faith by a junior user in adopting a mark weighs in favor of a likelihood
of confusion, see id., the converse is not necessarily true. In the context of an ex parte
appeal where no discovery or testimony can be presented or taken, we cannot place
any probative value to the absence of bad intent on the part of Applicant. As such, we
deem this neutral in our analysis.
III. Conclusion – Weighing and Balancing the DuPont factors
The final step in analyzing likelihood of confusion is to assess our findings under
the DuPont factors discussed above and determine whether, on balance, confusion is
24 Applicant’s Brief, 6 TTABVUE 45.

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likely. See Charger Ventures LLC, 64 F.4th at 1379.
We have carefully considered all of the evidence made of record, as well as all
arguments. Each of the DuPont factors we have considered points in the same
direction. The first DuPont factor weighs in favor of a likelihood of confusion because
overall, the marks are similar in sound, appearance, meaning and commercial
impression. The second and third factors also tip the scale in favor of a likelihood of
confusion because the goods are related, complementary products, marketed in
overlapping trade channels to the same classes of consumers. The fourth, fifth,
twelfth, and thirteenth DuPont factors are neutral. The sixth factor is neutral
because Applicant has not shown that the cited mark is conceptually or commercially
weak. With no factors weighing against a likelihood of confusion, we conclude that
confusion is likely.
Decision: The Section 2(d) refusal is affirmed.