Inmode Ltd v. Empower Aesthetics LLC

KMK October 20, 2026
Opposition No. 91299827
Inmode Ltd.
v.
Empower Aesthetics LLC
Before Greenbaum, Pologeorgis, and Casagrande,
Administrative Trademark Judges.
By the Board:
This proceeding now comes before the Board for consideration of Applicant’s
motion, filed December 8, 2025, for summary judgment on Opposer’s sole claim of
likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d).1 The
motion is fully briefed.2
1 5 TTABVUE. In this order, the Board cites to the proceeding record by the TTABVUE
docket entry number and TTABVUE page number, in accordance with the guidance provided
in the TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) §§ 106.03,
702.05 and 801.01 (2026). Specifically, the number preceding TTABVUE corresponds to the
docket entry number, and any number(s) following TTABVUE refer to the page number(s) of
the docket entry where the cited materials appear.
2 After the Board granted Opposer an extension of time to respond (8 TTABVUE), Opposer
filed its response on January 21, 2026 (9 TTABVUE) and Applicant filed a reply on February
10, 2026 (11 TTABVUE).
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
General Email: TTABInfo@uspto.gov
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB

Opposition No. 91299827
2
The Board has considered the parties’ submissions and does not recount all the
facts or arguments except as necessary to explain the decision. See Guess? IP Holder
L.P. v. Knowluxe LLC, No. 92060707, 2015 WL 9702438, at *2 (TTAB 2015).
I. Background
Applicant seeks registration of the mark for the following services:
Consulting services in the field of hormone replacement therapy;
Cosmetic laser treatment of hair removal, acne and varicose veins;
Cosmetic laser treatment of veins; Cosmetic skin care services, namely,
facials, chemical peels and microdermabrasion; Facial treatment
services, namely, cosmetic peels; Hair restoration services; Intravenous
(IV) hydration therapy services; Intravenous (IV) vitamin therapy
services; Laser hair removal services; Medical skin care services;
Medical spa services, namely, minimally and non-invasive cosmetic and
body fitness therapies; Nutrition counseling; Providing laser and
intense pulse light skin enhancement procedures; Providing laser
therapy for treating medical conditions; Providing medical advice in the
field of weight loss; Providing medical aesthetic procedures, namely,
treating the skin with dermal fillers and botulinum toxin; Providing
weight loss program services; Providing weight loss programs and
cosmetic body care services in the nature of non-surgical body
contouring; Regenerative medicine services; Skin treatment, namely,
the injection of dermal fillers to reduce the appearance of facial fine
lines, in International Class 44.3
3 Application Serial No. 98599180 was filed on June 13, 2024, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), claiming November 20, 2022, as both the date of first
use and the date of first use in commerce as to the identified Class 44 services. The
application also identifies goods in International Classes 3 and 25, but these classes of goods
are not subject to the involved opposition. The application includes the following description
of the mark: “The mark consists of a monogram of the word ‘EMPOWER’ such that, in the
monogram, a first letter ‘E’ is shown on the left side facing inward, a second letter ‘E’ is shown
on the right side facing inward, a letter ‘R’ is shown inside of the first letter ‘E’, a letter ‘P’ is
shown inside of the second letter ‘E’ facing inward and the letters ‘O’, ‘W’ and ‘M’ are shown
on top of one other and in the center of the monogram.” Color is not claimed as a feature of
the mark.

Opposition No. 91299827
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In the notice of opposition, Opposer alleges prior common law rights in the mark
EMPOWERRF for medical workstations related to women’s health and wellness, and
associated medical, cosmetic and aesthetic treatments, and ownership of two
registrations issued on the Principal Register for the standard character marks
EMPOWERRF and EMPOWERRF BY INMODE, both for the following goods and
services:
Medical workstation comprised of medical apparatus for feminine
vaginal hygiene, feminine vaginal aesthetics, vaginal contraction,
genital thermal tissue remodeling and vaginal fractional coagulation,
and comprised of computer hardware and embedded computer operating
software for operating the medical apparatus; Medical apparatus and
medical applicators being medical handpieces for feminine vaginal
hygiene, feminine vaginal aesthetic procedures, vaginal contraction,
genital thermal tissue remodeling and vaginal fractional coagulation;
vaginal dilators, in International Class 10; and
Medical aesthetic treatment services, cosmetic medical treatment
services; cosmetic spa services, namely, cosmetic body care services;
feminine hygiene treatment services, vaginal health treatment services,
vaginal contraction treatment services and vaginal dilators treatment
services, medical aesthetic non-invasive services, in International Class
44.4
Applicant filed an answer denying the salient allegations of the notice of
opposition.5 Applicant also asserted the putative affirmative defense that Opposer
lacks priority.6 The Board construes this “defense” as a mere amplification of
Applicant’s denials to the salient allegations set forth in Opposer’s notice of
4 1 TTABVUE. Opposer submitted with the notice of opposition copies of printouts showing
the current status and title of the pleaded registrations (Reg. No. 7044983 for EMPOWERRF,
and Reg. No. 7158409 for EMPOWERRF BY INMODE), obtained from USPTO electronic
databases. 1 TTABVUE 14-17. Thus, the registrations properly are of record. Trademark
Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1).
5 4 TTABVUE.
6 Id. at 5.

Opposition No. 91299827
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opposition. See Order of Sons of It. in Am. v. Profumi Fratelli Nostra AG, No.
91093618, 1995 WL 596839, at *3 (TTAB 1995).
II. Applicable Legal Principles
Summary judgment is an appropriate method of disposing of cases in which there
are no genuine disputes as to any material facts, and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562-
63 (Fed. Cir. 1987). The evidentiary record and all reasonable inferences to be drawn
from the undisputed facts must be viewed in the light most favorable to the
nonmoving party. Old Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 202 (Fed. Cir.
1992); Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987 F.2d 766, 767 (Fed. Cir. 1993).
To prevail on summary judgment in this case, Applicant must demonstrate that
there is no genuine dispute of material fact that the contemporaneous use of the
parties’ respective marks on their respective goods and services would not be likely
to cause confusion, mistake or to deceive consumers regarding the source of the
respective goods and services. Hornblower & Weeks, Inc. v. Hornblower & Weeks, Inc.,
No. 91110043, 2001 WL 1512024, at *3 (TTAB 2001).
Likelihood of confusion depends on an analysis of all the probative facts in
evidence that are relevant to the thirteen factors set forth in In re E.I. du Pont de
Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). From case to case, any
of the thirteen factors may play a dominant role, and a single DuPont factor may be
dispositive. See, e.g., id. at 1361-62; Fuente Mktg Ltd. v. Vaporous Techs., LLC, 172

Opposition No. 91299827
5
F.4th 1337, 1347 (Fed. Cir. 2026); Kellogg Co. v. Pack’em Enters., Inc., 951 F.2d 330,
333 (Fed. Cir. 1991). Generally, “the similarity or dissimilarity of the marks in their
entireties’ is a predominant inquiry.” Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 1165 (Fed. Cir. 2002) (citing DuPont, at 476 F.2d at 1361). Indeed, where the
marks are sufficiently different, the dissimilarity of the marks may be dispositive in
the analysis. See, e.g., Fuente Mktg., 172 F.4th at 1347 (“a single DuPont factor may
be dispositive, especially where, like here, that single factor is the dissimilarity of the
marks”) (cleaned up) (citing Champagne Louis Roederer, S.A. v. Delicato Vineyards,
148 F.3d 1373, 1375 (Fed. Cir. 1998)); Odom’s Tenn. Pride Sausage, Inc., v. FF
Acquisition, LLC, 600 F.3d 1343, 1347 (Fed. Cir. 2010) (same).
III. Analysis
A. Parties’ Evidence and Arguments
Applicant argues that there is no likelihood of confusion between its applied-for
mark and Opposer’s marks, particularly in light of their dissimilarities.7 Applicant
relies on Kellogg, 951 F.2d at 333, for the proposition that there is “no reason why, in
a particular case, a single Du Pont factor may not be dispositive.”8 Applicant also
asserts that an applicant’s description of its design mark is not relevant in a
likelihood of confusion analysis.9
In response, Opposer argues that there is a genuine dispute of material fact as to
similarity of the marks.10 More particularly, Opposer argues that (1) the marks are
7 4 TTABVUE 6–9.
8 Id. at 7.
9 Id. at 9.
10 9 TTABVUE 9–10.

Opposition No. 91299827
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similar in appearance; (2) Opposer is entitled to use the word EMPOWERRF in any
font style, size, or color; (3) the parties’ marks are similar when viewed in the
marketplace; (4) the marks sound nearly identical when spoken aloud; and (5) the
marks are similar in overall meaning and commercial impression.11
Moreover, Opposer distinguishes Applicant’s reliance on Kellogg, arguing that in
the present case, the marks are “nearly identical in sound, meaning, and commercial
impression.”12 Opposer argues that similarity of the marks is not dispositive in this
case, in which additional DuPont factors weigh in Opposer’s favor.13 Finally, Opposer
argues that Applicant’s motion for summary judgment is a tactic to avoid pending
discovery obligations.14
Applicant replies that Opposer’s focus on the textual description of Applicant’s
mark is misplaced, because the focus should be on the drawing of Applicant’s mark.15
Applicant argues that there is no similarity in appearance between Applicant’s mark
and Opposer’s standard character marks, in that a person viewing Applicant’s mark
would not know, without having the benefit of reading the textual description of the
mark that was submitted in the application, “that each individual component of the
mark is derived from an English letter.”16 Applicant further replies that there is no
similarity in sound, because Applicant’s mark “is a design. Thus, it cannot be
11 Id. at 10–13.
12 Id. at 14–16.
13 Id. at 16–21 (discussing certain DuPont factors).
14 Id. at 21–22.
15 11 TTABVUE 1.
16 Id. at 3.

Opposition No. 91299827
7
vocalized.”17 Applicant additionally argues that there is no similarity in meaning,
because a “design mark has no meaning to it other than as an indication of origin for
the mark holder’s goods or services.”18 Applicant avers that, contrary to Opposer’s
argument, Applicant need not address all DuPont factors in the summary judgment
motion, because the first DuPont factor is dispositive.19 Applicant also disputes that
its motion for summary judgment is a tactic to avoid pending discovery obligations.20
B. Discussion
In determining the issue of likelihood of confusion and whether there is any
genuine dispute of material fact, we consider the DuPont factors. See DuPont, 476
F.2d at 1361. However, not all the DuPont factors are relevant to every case, and
“only factors of significance to the particular mark need be considered.” In re Mighty
Leaf Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010); accord Cunningham v. Laser Golf
Corp., 222 F.3d 943, 946 (Fed. Cir. 2000).
Any of the DuPont factors may play a dominant role, DuPont, 476 F.2d at 1361,
and, in some cases, a single DuPont factor may be dispositive. Kellogg, 951 F.2d at
333; see also Champagne Louis Roederer, 148 F.3d at 1375 (“one DuPont factor may
be dispositive in a likelihood of confusion analysis, especially when that single factor
is the dissimilarity of the marks”).
We initially consider the first DuPont factor, which assesses the similarity or
dissimilarity of the marks. DuPont, 476 F.2d at 1361. We consider “the marks in their
17 Id. at 4 (citing Georgia-Pacific Corp. v. Great Plains Bag Co., 614 F.2d 757 (CCPA 1980)).
18 Id. at 5.
19 Id. at 6.
20 Id. at 7–8.

Opposition No. 91299827
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entireties as to appearance, sound, connotation and commercial impression.” In re
Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (quoting DuPont, 476 F.2d at 1361).
The proper test “is not a side-by-side comparison of the marks, but instead whether
the marks are sufficiently similar in terms of their commercial impression such that
persons who encounter the marks would be likely to assume a connection between
the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018) (quoting
Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012)).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena Hosp.,
774 F.3d 747, 752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d 1340,
1344 (Fed. Cir. 2003)).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components. However, more or less weight can be given to a
particular feature of a mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re Nat’l Data Corp., 753 F.2d 1056,
1058 (Fed. Cir. 1985); see also Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746
F.3d 1317, 1322 (Fed. Cir. 2014). The focus is on the recollection of the average
customer, who normally “retains a general rather than specific impression of marks.”
In re i.am.symbolic, llc, No. 85916778, 2018 WL 3993582, at *4 (TTAB 2018).
Applicant’s mark is . Opposer’s standard character marks are
EMPOWERRF and EMPOWERRF BY INMODE. Although Applicant does not

Opposition No. 91299827
9
specifically address it, we will also consider Opposer’s common law use of its mark,
which is reflected in the record, as displayed below:21
As noted above, Applicant describes its mark as consisting of “a
monogram of the word ‘EMPOWER’ such that, in the monogram, a first letter ‘E’ is
shown on the left side facing inward, a second letter ‘E’ is shown on the right side
facing inward, a letter ‘R’ is shown inside of the first letter ‘E’, a letter ‘P’ is shown
inside of the second letter ‘E’ facing inward and the letters ‘O’, ‘W’ and ‘M’ are shown
on top of one other and in the center of the monogram.”
Opposer maintains that Applicant’s characterization of the mark as “a monogram
of the word ‘EMPOWER’” is an admission that Applicant’s mark is a “stylized version
21 Opposer’s Opposition to Motion for Summary Judgment, Ex. 8, 9 TTABVUE 242.

Opposition No. 91299827
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of the word “EMPOWER.”22 Thus, Opposer argues, the “literal element of Applicant’s
EMPOWER & Design Mark is identical to the dominant portion of” Opposer’s
marks.23 Applicant responds that Opposer’s focus on the description of the mark,
instead of the drawing of the mark, is misplaced.24
We agree with Applicant. “A drawing depicts the mark sought to be registered.”
Trademark Rule 2.52, 37 C.F.R. § 2.52; see also In re Change Wind Corp., No.
86046590, 2017 WL 3346786, at *6 n.6 (TTAB 2017) (“the drawing of the mark, not
the words an application uses to describe it, controls what the mark is”). Thus, we
look to the mark depicted in the drawing in Applicant’s application, i.e., , to
determine whether it is similar to (1) Opposer’s standard-character-only marks,
namely, EMPOWERRF or EMPOWERRF BY INMODE, and (2) the common law use
of record.
Here, while Applicant may have intended that its mark be made up of an
arrangement or “monogram” of the constituent letters of the word “EMPOWER,” the
arrangement of geometric shapes that make up the mark is so highly stylized and
arranged so as to form what appears to be a portal-like configuration devoid of any
literal component. Our determination of a mark’s likely connotation and commercial
impression are based on the perspective of the consuming public, not an applicant’s
intention. Fuente Mktg., 172 F.4th at 1342 (“how the parties intended the mark to be
22 9 TTABVUE 10.
23 Id. at 11.
24 11 TTABVUE 1.

Opposition No. 91299827
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perceived … cannot conclusively establish how consumers actually perceive the mark
without an assessment of other record evidence of consumer perception”) (citation
omitted); Hydra Mac, Inc. v. Mack Trucks, Inc., 507 F.2d 1399, 1400 (CCPA 1975)
(“the commercial impression intended by the user of a mark is entitled to very little
consideration in resolving the issue of likelihood of confusion, etc., where, as the board
here found, the actual impression created by the mark is different from the
impression allegedly intended by the user”) (emphasis in original); UMG Recordings,
Inc. v. Mattel, Inc., No. 91176791, 2011 WL 5014005, at *21 (TTAB 2011) (“we must
look to the likely consumer perception of the mark in connection with the identified
goods, rather than applicant’s intended connotation”). Here, consumers will be
unaware of Applicant’s description of its mark when encountering it in the
marketplace. Cf. In re Nat’l Data Corp., 753 F.2d at 1059 (“The public is unaware of
what words have been disclaimed during prosecution of the trademark application at
the PTO.”) (footnote omitted) and In re Clorox Co., 578 F.2d 305, 308 (CCPA 1978)
(“Confusion is likely, if at all, only in the marketplace, where marks are used. The
public is both unaware of, and distinctly disinterested in, whether a mark is
registered on either register.”) Indeed, consumers are highly unlikely to perceive
Applicant’s mark as stylized wording, but instead may only perceive a stylized design
with somewhat symmetrical arrangement of geometric shapes, some of which may
resemble letters. Even if an average consumer recognized one or more letters in this
drawing, it is highly unlikely that the average consumer could reorient and rearrange
those letters to form the word “EMPOWER.” Indeed, even knowing that the design

Opposition No. 91299827
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is intended to contain the letters “E-M-P-O-W-E-R,” it is very difficult to parse the
design and identify those letters, let alone place them in the order Applicant describes
in the application. In short, the marks are strikingly different in all aspects.
For these reasons, we find that, viewing the evidence in the light most favorable
to Opposer, Applicant has satisfied its burden of establishing the absence of any
genuine disputes of material fact with regard to the dissimilarity of Opposer’s pleaded
marks and Applicant’s mark. Further, even drawing all reasonable inferences from
the evidence of record on the other relevant DuPont factors in Opposer’s favor,
namely, the identical in part Class 44 services,25 the presumed identity of trade
channels and classes of purchasers of the legally identical in part Class 44 services,26
the conditions under which consumers purchase the parties’ products,27 and the
conceptual and commercial strength of Opposer’s pleaded marks,28 we find that
Applicant’s mark is so dissimilar to Opposer’s pleaded marks that this factor
outweighs the other factors and is dispositive in our likelihood of confusion analysis.29
25 Opposer’s Brief in Opposition, Declaration of Sarah S. Brooks, Opposer’s counsel (Brooks
Decl.), Exhibits 1 and 2, 9 TTABVUE 30-53.
26 Id.
27 Opposer’s Brief in Opposition, p. 20, 9 TTABVUE 21.
28 Id., Brooks Decl. Exhibits 4-9, 9 TTABVUE 101-265.
29 We note that Opposer did not submit any evidence of actual confusion. “[A] showing of
actual confusion[, however,] is not necessary to establish a likelihood of confusion.” Herbko
Int’l, 308 F.3d at 1164. We additionally note that Opposer invokes the 11th DuPont factor by
claiming that Applicant cannot establish an ability to exclude others from using its proposed
mark. To the extent Opposer is arguing that Applicant’s failure to demonstrate its ability to
exclude others inures to its benefit, Opposer is mistaken. Applicant’s silence on this factor
renders this factor either irrelevant or neutral. See, e.g., KME Germany GmbH v. Zhejiang
Hailiang Co., No. 91267675, 2023 WL 6366806, at *22 (TTAB 2023) (“Because Applicant has
not provided any significant information about the advertising and sales of its goods sold
under the stylized HME mark, and because there is no evidence that Applicant has
successfully asserted its rights so as to “exclude” third parties from using its mark, this
DuPont factor is not relevant, or is neutral.”) (citing DeVivo v. Ortiz, No. 91242863, 2020 WL

Opposition No. 91299827
13
Quiktrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 1037 (Fed. Cir. 2021) (affirming
Board’s determination to give dispositive weight to the dissimilarity of the marks
even where other factors such as identical-in-part goods, overlapping trade channels
and classes of customers, and similar conditions of purchase weighed in favor of
likelihood of confusion); Oakville Hills Cellar, Inc. v. Georgallis Holdings, LLC, 826
F.3d 1376, 1381-82 (Fed. Cir. 2016) (Board did not err in finding confusion unlikely,
notwithstanding the identity of goods, channels, and customer classes, the marks
were sufficiently dissimilar as to appearance, sound, meaning, and commercial
impression); Odom’s Tenn. Pride Sausage, 600 F.3d at 1347 (“[E]ven if all other
relevant DuPont factors were considered in Odom’s favor, as the board stated, the
dissimilarity of the marks was a sufficient basis to conclude that no confusion was
likely.”).
Accordingly, Applicant’s motion for summary judgment on Opposer’s Section 2(d)
claim is granted, judgment is entered in Applicant’s favor, and the opposition is
dismissed with prejudice.
1227592, at *16 (TTAB 2020)), rev’d on other grounds, ECF No. 363, No. 1:23-cv-01606-LMB-
LRV (E.D. Va. Jan. 10, 2025).