Albert Invent Corp.

This Opinion Is Not a
Precedent of the TTAB
Mailed: October 15, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Albert Invent Corp.
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Serial No. 98851757
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Jessie Reider Cristo and Michelle Q. Pham, of Buchalter, APC, for Albert Invent
Corp.
Andrew Crowder-Schaefer, Trademark Examining Attorney, Law Office 104,
Zachary Cromer, Managing Attorney.
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Before Larkin, Thurmon and Allard, Administrative Trademark Judges.
Opinion by Thurmon, Administrative Trademark Judge:
Albert Invent Corp. (“Applicant”) seeks registration on the Principal Register of
the mark BREAKTHROUGH, in standard characters, for “Data processing services;
business data analysis services in the field of artificial intelligence, chemical and
material science development; business data analysis for product analysis research;
electronic data collection services for business purposes in the fields of product
analysis research,” in International Class 35.1
1 Application Serial No. 98851757 was filed on November 13, 2024, based on an alleged intent
to use the mark in commerce under 15 U.S.C. § 1051(b). The original application included
services in other classes that were not subject to the refusal. Applicant divided the application

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The Trademark Examining Attorney issued a final refusal of registration under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), finding a likelihood of
confusion, based on the six commonly-owned, registered marks listed below:
BREAKTHROUGH2
BREAKTHROUGH LEADERSHIP3
BREAKTHROUGH ENTERPRISE CONSULTING4
BREAKTHROUGH LEADER5
BREAKTHROUGH DIAGNOSTICS6
BREAKTHROUGH ENTERPRISE7
Each of these registrations identifies business consulting and management
services, but we will limit our analysis to the first listed registration, for the mark
BREAKTHROUGH, which identifies “business consultation; providing business
information in the field of motivational business management and development;
to remove the services in the other classes, leaving this application with only the Class 35
services.
2 Registration No. 2418915, issued January 9, 2001, renewed. The mark was registered as
typeset words, which has the same effect as a standard character registration under current
rules.
3 Registration No. 3864683, issued October 19, 2010, renewed.
4 Registration No. 4319901, issued April 16, 2013, renewed.
5 Registration No. 4368726, issued July 16, 2013, renewed.
6 Registration No. 4440277, issued November 26, 2013, renewed.
7 Registration No. 5374098, issued January 9, 2018. Section 8 and 15 declaration accepted.

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business investigations; business management and organization consulting; business
research; personnel management consultation,” in International Class 35.8
The appeal is fully briefed and ready for final decision. We affirm the refusal to
register.
Section 2(d) – Applicable Law
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on a 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 (2015); see also In re Majestic
Distilling Co., 315 F.3d 1311, 1314 (Fed. Cir. 2003). We must consider each DuPont
factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912
F.3d 1376, 1378-79 (Fed. Cir. 2019). “Whether a likelihood of confusion exists between
an applicant’s mark and a previously registered mark is determined on a case-by-case
basis, aided by application of the thirteen DuPont factors.” Omaha Steaks Int’l, Inc.
v. Greater Omaha Packing Co., 908 F.3d 1315, 1318 (Fed. Cir. 2018).
“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). Varying
weights may be assigned to each DuPont factor depending on the evidence presented.
See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed. Cir. 2011);
In re Shell Oil Co., 992 F.2d 1204, 1206 (Fed. Cir. 1993) (“the various evidentiary
8 Registration No. 2418915. This registration also identifies goods in Class 16 and services in
Class 41, that were not relied upon by the Trademark Examining Attorney in support of the
Section 2(d) refusal.

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factors may play more or less weighty roles in any particular determination”). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the goods or services. See In re i.am.symbolic,
LLC, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books,
Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)); In re Chatam Int’l Inc., 380 F.3d 1340,
1342 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
1103 (CCPA 1976) (“The 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.”).
Likelihood of Confusion – Analysis
A. Similarity of the Marks
To evaluate the similarity of the marks under the first DuPont factor, we consider
the marks in their entireties as to appearance, sound, connotation and commercial
impression. See, e.g., Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1371 (citing DuPont, 476 F.2d at 1361). “Similarity
in any one of these elements may be sufficient to find the marks confusingly similar.”
In re Inn at St. John’s LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13 (quoting In
re Davia, No. 85497617, 2014 TTAB LEXIS 214, at *4), aff’d mem., 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 confusion.”) (citation omitted).

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“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc. v. Triumph Learning, LLC, 668 F.3d 1356,
1368 (Fed. Cir. 2012). The focus is on the recollection of the average purchaser, who
normally “retains a general rather than a specific impression of marks.” In re
i.am.symbolic, llc, No. 85916778, 2018 TTAB LEXIS 281, at *11.
The marks are identical. This fact increases the likelihood of confusion and
strongly supports the Section 2(d) refusal.9
B. Similarity or Relatedness of the Services
We evaluate the second DuPont factor based on the services identified in the
application and the cited registration. See Stone Lion Cap. Partners, LP v. Lion Cap.
LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014); Octocom Sys., Inc. v. Hous. Comput. Servs.
Inc., 918 F.2d 937, 942 (Fed. Cir. 1990). This point is important here, because
Applicant presented arguments based on marketplace circumstances that are not
reflected in the identifications in the application or the cited registration. We will
return to this point below.
It is sufficient for a finding of likelihood of confusion if similarity or relatedness is
established between any of the services identified in the application and cited
9 Applicant argues that the applied-for mark is different from the other five cited marks
because those marks include additional words. We need not address these arguments because
we are limiting our analysis to the cited mark BREAKTHROUGH, which is identical to
Applicant’s mark.

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registration. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336
(CCPA 1981); see also Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019
TTAB LEXIS 347, at *18; In re Aquamar, Inc., No. 85861533, 2015 TTAB LEXIS 178,
at *9 n.5. In addition, the services need only be sufficiently related that a relevant
consumer would be likely to assume, upon encountering services marketed under the
marks at issue, that the services originate from, are sponsored or authorized by, or
are otherwise connected to the same source. See, e.g., In re Save Venice N.Y., Inc., 259
F.3d 1346, 1355 (Fed. Cir. 2001); Black & Decker Corp. v. Emerson Elec. Co., Nos.
91158891 and 91158941, 2007 TTAB LEXIS 50, at *25-26.
The cited registration identifies, among other services, “business consultation,”
and “business research.” The application identifies two specific types of “business
data analysis” services, with the first limited to “the field of artificial intelligence,
chemical and material science development,” and the second limited to the field of
“product analysis research.” We find that these are types of “business consultation,”
one broad field of services identified in the cited registration. Or to put it more
bluntly, the services identified in the application are a subset of those identified in
the cited registration.
We further find that the services related to “product analysis research” in the
application, are a subset of the “business research” services identified in the cited
registration. Again, we have legally identical and overlapping services. When the
services are legally identical, even in part, the likelihood of confusion increases. These
facts strongly support the Section 2(d) refusal.

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Rather than argue that the services overlap, the Trademark Examining Attorney
argues the services are related.10 The Trademark Examining Attorney submitted
third-party internet evidence that shows other businesses offer services identified in
the cited registration and the application.11 This evidence is not surprising. Entities
that provide business consultation and research services likely provide those services
across a broad range of business types. Indeed, the evidence submitted by the
Trademark Examining Attorney shows third party businesses offering a broad range
of consulting services. This evidence confirms the overlapping nature of the identified
services.
Applicant argues that the services are “completely different.”12 We disagree.
Applicant does not provide any evidence or argument to show that its services are not
a type of business consultation or that its research-related services are not within the
full scope of the “business research” services identified in the cited registration. It is
true that Applicant has narrowed its services, but that does not eliminate the overlap.
If these services were represented by a Venn diagram, the cited registration’s
“business consultation” and “business research” circles would be quite large.
Applicant’s more limited services would be represented by a much smaller circle, but
that circle would appear inside the large circles of the services identified in the cited
registration.
10 8 TTABVUE 8-12.
11 Office Action dated July 8, 2025, at 21-28 (Bain Consulting); Final Office Action dated
September 3, 2025, at 10-38 (IBM), 44-60 (Accenture), 61-87 (Deloitte), 88-107 (PWC), 108-
27 (BCG), 128-42 (Oracle), 143-51 (SAP).
12 6 TTABVUE 13.

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A reading of Applicant’s arguments under the second DuPont factor suggests that
Applicant’s real issue may be with the breadth and scope of the services identified in
the cited registration.13 It is clear Applicant wants this Board to read those services
as narrowly as possible, but we are charged with giving full and fair scope to services
identified in a registration. See, e.g., In re OSF Healthcare Sys., No. 88706809, 2023
TTAB LEXIS 353, *8-9 (we must construe the services identified in a cited
registration as broadly as reasonably possible, and we must also give the
identification in the application its full scope).
C. Trade Channels
The third-party evidence supplied by the Trademark Examining Attorney shows
that these services are provided through the same trade channels. That fact increases
the likelihood of confusion. In addition, because the services are legally identical in
part, we presume they flow through the same trade channels, at least to the extent
of the legal identity of the services. In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir.
2012). The application includes limits on the services, but these limited services are
subsumed by the broader services identified in the cited registration. For example, if
the registrant provides business consultation in the field of artificial intelligence,
which would be fully within the “business consultation” services identified in the cited
13 Some of Applicant’s arguments refer to the services as software. 6 TTABVUE 14. This
assertion is problematic, because the Class 35 services at issue in this appeal are not
identified as software services. The original application included downloadable software
goods in Class 9 and software as a service (SAAS) services in Class 42. The software goods
and services were divided out into a new application (Serial No. 98977453), which has been
allowed by the Trademark Examining Attorney.

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registration, such services presumably would flow through the same trade channels
Applicant would use to provide its “business data analysis services in the field of
artificial intelligence.” There is no evidence, and Applicant presents no persuasive
arguments, that these services move through different trade channels. The third
DuPont factor also supports the refusal.
D. Customer Care
The fourth DuPont factor considers the likely care exercised by relevant
consumers. DuPont, 476 F.2d at 1361 (“The conditions under which … sales are made,
i.e. ‘impulse’ vs. careful, sophisticated purchasing ….”). Applicant argues that its
“consumers are professional chemists, material scientists, and the companies that
employ these highly-educated, product design professionals, all of whom are highly
sophisticated.”14 We agree that the limitations in the services identified in the
application are meaningful to our analysis of the fourth DuPont factor. And we agree
that Applicant’s consumers will exercise more care than the typical consumer. The
evidence Applicant submitted from its internet site supports this finding. This fact
reduces the likelihood of confusion, but because even careful and sophisticated
consumers make mistakes, we place less weight on this factor than on the first two
DuPont factors evaluated above.
14 6 TTABVUE 25. The internet materials Applicant provided are consistent with this
argument, despite Applicant’s failure to cite such evidence in its brief. Request for
Reconsideration dated December 3, 2025, at 22-43.

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E. Strength of the Cited Mark
Applicant argues that these marks exist in a “crowded field,” with other similar
marks being used with similar services.15 Applicant even provides a list of five
registrations it argues show the field is crowded. We reject these arguments for two
primary reasons. First and foremost, Applicant did not submit evidence of these
registrations during examination, and therefore, they are not in the record of this
appeal. The record for an appeal should be complete before briefs are filed with the
Board (i.e., if evidence is submitted on appeal, it’s too late).16 Second, merely listing
registrations does not put the registrations into evidence, so Applicant’s list would
not have worked even if submitted during examination. The sixth DuPont factor,
which is applicable when there is evidence of third-party use of similar marks with
similar services, is inapplicable here.
F. Conclusion: Weighing the Factors
The marks are identical, and the services are legally identical in part (i.e., the
services overlap). “[B]ecause the marks are identical, the degree of similarity between
the goods . . . required for confusion to be likely declines.” DeVivo v. Ortiz, No.
91242863, 2020 USPQ2d 10153, at *11. There is evidence the trade channels overlap,
and we presume as much because of the legally identical and overlapping services.
We found Applicant’s consumers likely exercise more care, and this lowers the risk of
15 6 TTABVUE 17-18.
16 The Trademark Examining Attorney objected to this new “evidence” on this basis. 8
TTABVUE 3-4.

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confusion. There is no evidence of third party use of similar marks with similar
services, so the sixth DuPont factor is inapplicable.
The first two DuPont factors weigh heavily here, and both support the Section 2(d)
refusal. The third DuPont factor also supports the refusal. The fourth DuPont factor
points the other way, but not enough to outweigh the first two factors. The record
shows that confusion is likely.
Decision: The Section 2(d) refusal is affirmed.