BRUHHL LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: November 21, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Bruhhl LLC
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Serial No. 97741879
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Bruhhl LLC, pro se.
Kelly Neal, Trademark Examining Attorney, Law Office 105,
Jennifer L. Williston, Managing Attorney.
_____
Before Larkin, Lebow, and O’Connor,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
Bruhhl LLC (“Applicant”), appearing pro se, seeks registration on the Principal
Register of the standard-character mark SANITEE for “Spray sanitizer for personal
use” in International Class 5.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it
1 Application Serial No. 97741879 was filed on January 4, 2023 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce.

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so resembles the standard-character mark SANITY, registered on the Principal
Register for “Disinfectants, hand sanitizers” in International Class 5,2 as to be likely,
when used in connection with the goods identified in the application, to cause
confusion, to cause mistake, or to deceive.
When the Examining Attorney made the refusal to register final, Applicant
appealed and subsequently requested reconsideration, which was denied. The case is
fully briefed.3 We affirm the refusal to register.
I. Record on Appeal4
The record on appeal was made entirely by the Examining Attorney. It includes
USPTO electronic records regarding the cited registration;5 dictionary definitions of
the words “sanity,” “sanitizer,” “hand sanitizer,” “disinfectant,” and “tee,” and the
suffix “-ty;”6 a list of baby names ending with “y” and “ee;”7 third-party webpages that
the Examining Attorney claimed during prosecution “establish[ ] that the same entity
commonly manufactures, produces, or provides the hand sanitizer and spray
2 The cited Registration No. 6709296 issued on April 26, 2022.
3 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
system. The number preceding TTABVUE corresponds to the docket entry number, and any
numbers following TTABVUE refer to the page(s) of the docket entry where the cited
materials appear. Applicant’s appeal brief appears at 6 TTABVUE and its reply brief appears
at 9 TTABVUE. The Examining Attorney’s brief appears at 8 TTABVUE.
4 Citations in this opinion to the application record are to pages in the downloadable .pdf
version of the Trademark Status & Document Retrieval (“TSDR”) database of the United
States Patent and Trademark Office (“USPTO”).
5 October 2, 2023 Office Action at TSDR 5.
6 August 29, 2025 Denial of Request for Reconsideration at TSDR 8-15, 16-17, 193-208
(COLLINS DICTIONARY).
7 Id. at TSDR 18-27 (babycenter.com).

Serial No. 97741879
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sanitizer for personal use and markets these goods under the same mark” and “that
the same entity commonly manufactures, produces, or provides the disinfectants and
spray sanitizer for personal use and markets these goods under the same mark;”8 and
USPTO electronic records regarding third-party registrations of marks that the
Examining Attorney claimed during prosecution are “registered for use in connection
with the same or similar goods as those of both applicant and registrant in this case”
and “show[ ] that the goods listed therein, namely disinfectants and hand sanitizer
and spray sanitizer for personal use, are of a kind that may emanate from a single
source under a single mark.”9
II. Evidentiary Issue
Applicant attached to its appeal brief two appendices, which we reproduce below:
8 Id. at TSDR 6, 28-192.
9 Id. at TSDR 6, 209-50.

Serial No. 97741879
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6 TTABVUE 4.
Id. at 5. In the body of its appeal brief, Applicant requests the Board to “[p]leaser [sic]
contrast the images provided in APPENDIX A with APPENDIX B for further
illustration of the differences in the names in contrast.” Id. at 3.
The Examining Attorney argues that “Applicant improperly attempts to add new
evidence outside the application records in ‘Appendix A’ and ‘Appendix B’ of the
attachments to its brief,” and “objects to the use and consideration of this evidence.”
8 TTABVUE 2. The Examining Attorney acknowledges that “the evidence in
‘Appendix A’ is a screenshot the examining attorney provided as dictionary evidence

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in a prior Office action,” but argues that “the text at the bottom of the page was not
originally part of the dictionary evidence.” Id.10
In its reply brief, Applicant “acknowledges that certain exhibits were submitted
after the appeal was initiated,” but argues that “they were intended to clarify, not
supplement, the evidentiary record.” 9 TTABVUE 3. Applicant “maintains that the
substance of its argument stands without reliance on those exhibits, and invites the
Board to consider them only if permissible under discretion.” Id.
“The record in the application should be complete prior to the filing of an appeal”
and “[e]vidence should not be filed with the Board after the filing of a notice of
appeal.” In re Weiss, Ser. No. 88621608, 2024 WL 3617597, at *2 (TTAB 2024)
(quoting Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d)). If an applicant wishes to
make additional evidence of record on appeal, the proper means is to request remand
of the application to the examining attorney for consideration of the evidence. Id.
(citing Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d)).
The photograph in Appendix A was made of record during prosecution,11 and we
overrule the Examining Attorney’s objection to Applicant’s annotation to it, which is
in the nature of argument,12 but the photograph in Appendix B is not in the record
10 The Examining Attorney also claims that Applicant “incorrectly states that the bottles
advertised on the dictionary webpage are registrant’s goods.” 8 TTABVUE 4 (citing 6
TTABVUE 4). Applicant did not make such a statement in its annotation in Appendix A or
in the body of its appeal brief, and the picture shows products sold under the mark
ERBAVIVA, not the cited mark SANITY. April 29, 2025 Denial of Request for
Reconsideration at TSDR 8.
11 April 29, 2025 Denial of Request for Reconsideration at TSDR 8.
12 The annotation to Appendix A is irrelevant even if Appendix A showed the cited mark
because we cannot rely on extrinsic evidence of the actual use of either of the involved marks

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and is thus “additional evidence,” id., as to which Applicant did not file a remand
request. We sustain the Examining Attorney’s objection to Appendix B in its entirety
and have given it no consideration in our decision.
III. Likelihood of Confusion Refusal
“The Trademark Act prohibits registration of a mark that so resembles a
registered mark as to be likely, when used on or in connection with the goods or
services of the applicant, to cause confusion [or] mistake, or to deceive.” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). Our determination
of the likelihood of confusion under Section 2(d) of the Trademark Act is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
1361 (CCPA 1973) (“DuPont”). Charger Ventures, 64 F.4th at 1379. We consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
“Two key factors in every Section 2(d) case are the first two factors regarding the
similarity or dissimilarity of the marks and the goods or services, because 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.” DC Comics
v. Cellular Nerd LLC, Opp. No. 91246950, 2022 WL 17832492, at *10 (TTAB 2022)
to determine their commercial impressions. See, e.g., In re Aquitaine Wine USA, LLC, Serial
No. 86928469, 2018 WL 1620989, at *4 (TTAB 2018) (“we do not consider how Applicant and
Registrant actually use their marks in the marketplace, but rather how they appear in the
registration and the application. We must compare the marks as they appear in the drawings,
and not on any labels that may have additional wording or information.”) (citations omitted).

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(internal quotations and quotation marks omitted). In its appeal brief, Applicant
focuses almost entirely on these two key factors, 6 TTABVUE 2-3,13 and the
Examining Attorney does so as well. 8 TTABVUE 3-8.
A. Similarity or Dissimilarity of the Goods
“The second DuPont factor considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration . . . .” In re Detroit
Athletic Co., 903 F.2d 1297, 1306 (Fed. Cir. 2018). “This factor considers whether ‘the
consuming public may perceive [the respective goods or services] as related enough
to cause confusion about the source or origin of the goods or services.’” In re St. Helena
Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Packard
Press, Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002)). “In analyzing the [goods], the Board
considers [t]he similarity or dissimilarity and nature of the [goods] as described in an
application or registration.” In re OSF Healthcare Sys., Ser. No. 88706809, 2023 WL
13 Applicant mentions trade channels twice in its appeal brief. 6 TTABVUE 2-3. The third
DuPont factor considers “the similarity or dissimilarity of established, likely-to-continue
trade channels,” DuPont, 476 F.2d at 1361, but Applicant does not offer any developed
argument or cite any evidence regarding trade channels. Applicant’s reply brief contains
headings captioned the “Weakness of the Cited Mark,” and “No Evidence of Actual
Confusion,” 9 TTABVUE 3, which respectively implicate the sixth and eighth DuPont factors,
DuPont, 476 F.2d at 1361, but we have given Applicant’s unsupported arguments regarding
these factors no consideration because they were made by Applicant for the first time in
its reply brief, and the Examining Attorney thus had no opportunity to address them. See
Major League Baseball Players Ass’n v. Chisena, Opp. No. 91240180, 2023 WL 2986321, at
*26 (TTAB 2023) (argument under the thirteenth DuPont factor raised by opposers for the
first time in their reply brief not considered), appeal docketed, No. 23-2073 (Fed. Cir. June
26, 2023); cf. Instagram, LLC v. Instagoods Pty Ltd., Opp. No. 91266266, 2023 WL 6786567,
at *7 (TTAB 2023) (refusing to consider argument made for the first time in reply brief on
motion); In re City of Hous., Ser. No. 77660948, 2012 WL 423805, at *2 (TTAB 2012) (refusing
to consider evidence submitted by applicant with reply brief because examining attorney had
no opportunity to respond to it).

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6140427, at *4 (TTAB 2023) (quoting In re Embiid, Ser. No. 88202890, 2021 WL
2285576, at *10 (TTAB 2021)).
The authority is legion that the question of registrability of
an applicant’s mark must be decided on the basis of the
identification of goods . . . set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant’s goods . . ., the particular
channels of trade or the class of purchasers to which the
sales of goods . . . are directed.
Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, Opp. No. 91270181, 2024 WL
1638376, at *7 (TTAB 2024) (quoting Octocom Sys., Inc. v. Hous. Comput. Servs., Inc.,
918 F.2d 937, 942 (Fed. Cir. 1990)). The goods identified in the cited registration are
“Disinfectants, hand sanitizers,”14 while the goods identified in the application are
“Spray sanitizer for personal use.”
“The goods need not be identical or even competitive to find a likelihood of
confusion.” In re Samsung Display Co., Ser. No. 90502617, 2024 WL 3451873, at *3
(TTAB 2024) (citing On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086
(Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 1329 (Fed. Cir. 2000)). “They
need only be ‘related in some manner and/or if the circumstances surrounding their
marketing are such that they could give rise to the mistaken belief that [the goods]
emanate from the same source.’” Id. (quoting Coach Servs. Inc. v. Triumph Learning
LLC, 668 F.3d 1356, 1369 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, Opp.
91117739, 2007 WL 1431084, at *10 (TTAB 2007)).
14 The Examining Attorney is not required to show that Applicant’s goods are related to both
of the goods identified in the cited registration. See generally Tuxedo Monopoly, Inc. v. Gen.
Mills Fun Grp., Inc., 648 F.2d 1335, 1336 (CCPA 1981). We will focus on the “hand sanitizers”
identified in the cited registration.

Serial No. 97741879
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The relatedness of goods or services may be established based on (1) the language
of the involved identifications of goods or services, which may show that the goods or
services are literally or legally identical, or otherwise intrinsically related, and (2)
extrinsic evidence, such as third-party uses or registrations, which may show that
the goods or services are commonly offered by the same entity under the same mark.
See, e.g., In re Country Oven, Inc., Ser. No. 87354443, 2019 WL 6170483, at *2-6
(TTAB 2019).
With respect to intrinsic relatedness, we “must construe the [‘hand sanitizers’]
identified in the cited registration as broadly as reasonably possible ‘to include all
[goods] of the nature and type described therein,’” OSF Healthcare, 2023 WL
6140427, at *5 (quoting In re Solid State Design Inc., Ser. No. 87269041, 2018 WL
287909, at *6 (TTAB 2018) (internal quotation omitted)), and we “must resolve any
ambiguities regarding their coverage in favor of the cited registrant ‘given the
presumptions afforded the registration under Section 7(b)’ of the Trademark Act.” Id.
(quoting In re C.H. Hanson Co., Ser. No. 77983232, 2015 WL 6121759, at *5 (TTAB
2015) (citing 15 U.S.C. § 1057(b)). We must also “give the [‘spray sanitizer for
personal use’] identified in the application [its] full scope in our analysis of the
second DuPont factor.” Id. (citing Country Oven, 2019 WL 6170483, at *5).
Extrinsic evidence of relatedness “may include news articles 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; or copies of prior use-

Serial No. 97741879
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based registrations of the same mark for both applicant’s goods . . . and the goods . . .
listed in the cited registration.” Embiid, 2021 WL 2285576, at *10 (quoting In re Ox
Paperboard, LLC, Ser. No. 87847482, 2020 WL 4530517, at *6 (TTAB 2020)).
In its appeal brief, Applicant argues that its
goods are narrowly defined as a spray sanitizer for
personal use, indicating a specific mode of delivery (mist or
aerosol) and a targeted end-user. The cited mark’s goods
encompass a broader set of categories, including
“disinfectants” (which may apply to surfaces or
environments, not just personal hygiene) and “hand
sanitizers” (which could take the form of gels, wipes, or
foams, not exclusively sprays).
6 TTABVUE 3.
Applicant concludes that “[t]hese differences in product type, usage, and
commercial trade channels mitigate any risk of consumer confusion.” Id. Applicant
cites In re i.am.symbolic, LLC, 866 F.3d 1315 (Fed. Cir. 2017), which Applicant argues
“require[s] a fact-specific analysis of goods, not merely a broad categorical overlap.”
Id.
With respect to intrinsic relatedness, the Examining Attorney argues that “the
application uses broad wording to describe ‘spray sanitizer for personal use’, which
presumably encompasses all goods of the type described, including registrant’s more
narrow ‘hand sanitizers’ which are not limited to a specific form (i.e., liquid, gel, or
spray),” and that “[b]oth marks are for sanitizers for use on a person.” 8 TTABVUE 3
(citations omitted). The Examining Attorney further argues that Applicant conceded
during prosecution that “both applicant and registrant are providing ‘hand sanitizer’
products and argued that ‘[o]ur hand sanitizer product services a different purpose

Serial No. 97741879
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and target market than the disinfectants and hand sanitizers covered by the
registered trademark’.” Id. at 4.15 The Examining Attorney concludes that “the
registration is for two goods, one encompassed by applicant’s broader goods, and the
other, ‘disinfectants’, is highly related to applicant’s ‘spray sanitizer for personal use’
as the respective goods serve the same intended purpose of removing germs.” Id.
With respect to relatedness based on extrinsic evidence, the Examining Attorney
points to third-party websites and registrations that the Examining Attorney argues
show that “the same entity commonly provides and markets hand sanitizer as well
as spray sanitizer for personal use under the same mark.” Id. at 5.
In its reply brief, Applicant does not address the second DuPont factor or respond
to the Examining Attorney’s arguments regarding intrinsic relatedness or
relatedness based on third-party uses and registrations.
Turning first to intrinsic relatedness, as Applicant acknowledged during
prosecution, a “spray sanitizer for personal use” could be a “hand sanitizer,” and the
only limitation on the nature of such a “sanitizer for personal use” is its delivery via
a spray.16 There is no limitation on the method of delivery or application of the “hand
sanitizers” identified in the cited registration, and “constru[ing] the [‘hand
15 The Examining Attorney cites Applicant’s Request for Reconsideration, in which Applicant
stated that “[o]ur hand sanitizer product serves a different purpose and target market than
the disinfectants and hand sanitizers covered by the registered trademark SANITY.”
November 3, 2024 Request for Reconsideration at TSDR 4. The Examining Attorney also
points to Applicant’s products shown in Appendix B to Applicant’s appeal brief, arguing that
Appendix B shows “use of the applied-for mark with a bottle labeled as hand sanitizer,” 8
TTABVUE 4, but as discussed above, we have sustained the Examining Attorney’s objection
to Appendix B, and we will not consider it.
16 November 3, 2024 Request for Reconsideration at TSDR 4

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sanitizers’] identified in the cited registration as broadly as reasonably possible to
include all [goods] of the nature and type described therein,” OSF Healthcare, 2023
WL 6140427, at *5 (quotation and quotation marks omitted), and “resolv[ing] any
ambiguities regarding their coverage in favor of the cited registrant given the
presumptions afforded the registration under Section 7(b) of the Trademark Act,” id.
(quotation and quotation marks omitted), we find that “hand sanitizers” could take
the form of a spray product.17 Accordingly, we agree with the Examining Attorney
that the goods identified in the cited registration as “hand sanitizers” and the goods
identified in the application as “spray sanitizer for personal use” are legally identical
because “spray sanitizer for personal use” encompasses “hand sanitizers.”18
17 Applicant states in its appeal brief that those goods “could take the form of gels, wipes, or
foams, not exclusively sprays,” 6 TTABVUE 3, thus acknowledging that “hand sanitizers”
could take the form of a spray. The record contains numerous examples of spray hand
sanitizers sold by third parties. April 29, 2025 Denial of Request for Reconsideration at TSDR
47, 53 (PlaneAire); 62, 65-66, 75 (dōTERRA); 77 (Common Sense); 106-07 (Honest); 113, 117
(Bath & Body Works); 120-21 (Boogie); 127 (Merci Handy); 129-30 (EO); 133, 139, 144 (Grove
Co.); 153 (Molly’s Suds); 177 (Trader Joe’s); 180-81 (Naturacentric); 187-88 (PureBioGuard).
18 As noted above, Applicant mentions trade channels only in passing in its appeal brief, and
the Examining Attorney also mentions trade channels and classes of consumers only in
passing in connection with a discussion of the second DuPont factor. 8 TTABVUE 4, 8. Where,
as here, the involved goods are identical, “‘absent restrictions in the application and
registration, goods and services are presumed to travel in the same channels of trade to the
same class of purchasers.’” In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (quoting
Hewlett-Packard, 281 F.3d at 1268 (internal citation omitted)). “Because there are no
restrictions in the identifications of the cited registration and involved application, we must
presume that these . . . legally identical goods travel through the same channels of trade to
the same potential purchasers.” In re Ye Mystic Krewe of Gasparilla, Ser. No. 90522364, 2025
WL 2953731, at *4 (TTAB 2025) (citing Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1372 (Fed.
Cir. 2018)). We may “rely on this legal presumption in determining likelihood of confusion,”
Viterra, 671 F.3d at 1362, in the absence of record evidence. The third DuPont factor thus
strongly supports a conclusion that confusion is likely.

Serial No. 97741879
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The record also shows that the identified goods (or equivalents) are commonly sold
by the same entity under the same mark. The Examining Attorney made of record
multiple third-party webpages offering the involved goods or equivalents.
With respect to Internet evidence, in determining exactly
what [goods] are offered through the respective websites,
we acknowledge that [goods] may not be explicitly
described at all, or may be described in colloquial language
that does not track the technical language of acceptable
identifications of goods and services in applications and
registrations, including those involved here.
OSF Healthcare, 2023 WL 6140427, at *10 (citations omitted). “In such instances, we
must determine the nature of the [goods] that are offered, and decide whether they
fall within the full scope of the language in the involved identifications.” Id. (citing In
re Dare Foods, Inc., Ser. No. 88758625, 2022 WL 970319, at *3 (TTAB 2022)
(construing smoked salmon, shellfish, and caviar cream spread displayed on a website
as “falling within the ambit of Applicant’s ‘snack food dips’.”)).
The record shows that Purell offers an “Advanced Hand Sanitizer Energizing
Mist,” “Hand Sanitizer Sprays,” and other hand sanitizers,19 and PlaneAire, Common
Sense, Honest, Bath & Body Works, Boogie, EO, Grove, Molly’s Suds, Trader Joe’s,
Naturacentric, and PureBioGuard all offer various hand sanitizer sprays, typically
described as “Hand Sanitizer Spray” or “Hand Sanitizing Spray,” and often other
forms of hand sanitizers.20 As described, these goods are all encompassed within both
19 April 29, 2025 Denial of Request for Reconsideration at TSDR 43-44.
20 Id. at TSDR 47, 53, 77-78, 106-07, 113, 117, 120-21, 129-30, 133-34, 153-54, 177, 180-81,
187-88.

Serial No. 97741879
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the “spray sanitizer for personal use” identified in the application and the “hand
sanitizers” identified in the cited registration.
In addition, dōTERRA offers a “Hand Sanitizing Mist;”21 Wet Ones offers
“Hydrating Hand Sanitizer Mist;”22 Merci Handy offers “Purifying Sanitizer Spray;”23
and Latalia offers “Sanitizing Spray” and “Hand Sanitizer.”24 As described, these
goods could also all be encompassed within both the “spray sanitizer for personal use”
identified in the application and the “hand sanitizers” identified in the cited
registration. This third-party use evidence “bolsters our finding of relatedness” based
on the intrinsic relatedness of the goods. Country Oven, 2019 WL 6170483, at *6.
The Examining Attorney also made of record multiple use-based third-party
registrations covering “spray sanitizer for personal use” and goods broadly identified
as “handsanitizing preparations,” which encompass “hand sanitizers.”25 “As a general
proposition, third-party registrations that cover goods . . . from both the 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.” Id. at *6.
The relevant third-party registrations are Registration Nos. 7170038; 6390544;
6200507; 6165584; 6184766; 6433413; 6332302; 6202551; 6457174; 6294996;
21 Id. at TSDR 65-66.
22 Id. at TSDR 103.
23 Id. at TSDR 125.
24 Id. at TSDR 86-87.
25 “Just as we must consider the full scope of the goods and services as set forth in the
application and registration under consideration, we must consider the full scope of the goods
and services described in a third-party registration.” Country Oven, 2019 WL 6170483, at *5.

Serial No. 97741879
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6381623; 6238686; 6969547; 6630048; and 6169364.26 These 15 third-party
registrations, owned by 13 different registrants, “are sufficient in both quality and
quantity to provide a reasonable predicate supporting the Examining Attorney’s
position on relatedness and shift the burden to Applicant to rebut the evidence with
competent evidence of its own.” Country Oven, 2019 WL 6170483, at *5. Applicant
offered no countervailing evidence showing that the goods are not related. “The third-
party registrations thus show that [‘spray sanitizer for personal use’ and ‘hand
sanitizers’] are types of goods . . . that emanate from a common source under the same
mark and, thus, are probative evidence that the goods . . . are related, bolstering our
finding of relatedness.” Id.
The “hand sanitizers” identified in the cited registration and the “spray sanitizer
for personal use” identified in the application are legally identical, and the record also
shows that those goods or equivalents are commonly sold by the same entity under
the same mark. The second DuPont factor strongly supports a conclusion that
confusion is likely.
B. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, “we consider the ‘similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.’” Ye Mystic Krewe of Gasparilla, 2025 WL 2953731, at *4
(quoting DuPont, 476 F.2d at 1361). “Similarity in any one of these elements may be
26 April 29, 2025 Denial of Request for Reconsideration at TSDR 209-10, 211-12, 213-14, 219-
20, 223-24, 225-26, 227-28, 229-30, 231-32, 233-34, 237-38, 239-40, 243-44, 245-46, 249-50.

Serial No. 97741879
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sufficient to find the marks confusingly similar.” Sage Therapeutics, 2024 WL
1638376, at *5 (quoting In re Inn at St. John’s LLC, Ser. No. 87075988, 2018 WL
2734893, at *5 (TTAB 2018) (citation omitted), 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 confusion.”) (citation omitted).
“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.” Sage Therapeutics, 2024 WL 1638376, at *5 (quoting Coach
Servs., 668 F.3d at 1368). “The focus is on the recollection of the average purchaser,
who normally ‘retains a general rather than a specific impression of marks.’” Id.
(quoting In re i.am.symbolic, llc, Ser. No. 85916778, 2018 WL 3993582, at *4 (TTAB
2018) (citations omitted)). The average purchaser here is a consumer of “spray
sanitizer for personal use,” which by definition includes members of the general
public.
We must “keep in mind that where, as here, the goods are [legally] identical in
part, ‘the degree of similarity necessary to support a conclusion of likely confusion
declines.’” Ye Mystic Krewe of Gasparilla, 2025 WL 2953731, at *4 (quoting Viterra,
671 F.3d at 1363 (citation omitted)).
The marks here are SANITEE and SANITY, both in standard characters.
Applicant acknowledges that “the marks share an initial phonetic similarity,” but

Serial No. 97741879
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claims that “their overall commercial impressions diverge significantly in sight,
sound, connotation, and market context, negating any substantial likelihood of
consumer confusion.” 6 TTABVUE 2. Applicant argues that
Although both marks begin with the syllable “SAN-”, their
structural and phonetic differences are material. The
registered trademark SANITY concludes with the suffix “-
ITY”, which conveys an abstract concept (e.g., mental
soundness or hygiene). In contrast, SANITEE employs the
suffix “-TEE”, introducing a distinct visual and auditory
element that alters the mark’s cadence and connotation.
The “-TEE” ending may evoke associations with casual or
playful goods (e.g., “tee” as in a T-shirt, or in various sports
such as tee ball, or as in a golf tee), distinguishing it from
the more clinical or abstract impression of SANITY. This
distinction is not merely superficial – it fundamentally
changes the rhythm, sound, and implied meaning of the
mark. Courts and the TTAB have consistently held that
differences in suffix formations can preclude confusion,
even where initial syllables overlap.
Id. (citing DuPont, 476 F.2d at 1361).
The Examining Attorney responds that the marks “are essentially phonetic
equivalent and substantially similar in appearance and meaning.” 8 TTABVUE 7.
The Examining Attorney argues that “the ending of the wording in registrant's mark,
‘-TY’ is pronounced as ‘ti’ and . . . the ending of the wording in applicant's mark, ‘-
TEE’, is pronounced as ‘ti’,” and that “the marks are in standard characters and start
with the identical first letters SANIT- followed by a phonetically similar ending -EE
or -Y,” concluding that “the compared marks could clearly be pronounced the same.”
Id.
The Examining Attorney further argues that
the visual difference in the endings of the marks do not
alter the marks’ overall commercial impressions, as argued

Serial No. 97741879
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by applicant. Here, both marks would be pronounced as
“sænɪti” or “sanity” which invokes soundness of one’s mind
or judgment. . . . Consequently, the marks convey the same
idea or meaning, i.e., products for helping a person remain
sane by ensuring hands/surfaces are free from germs.
Id. (citations omitted).
In its reply brief, Applicant argues that
The word “sanity” is a common English word meaning
“soundness of mind” and is strongly associated with mental
health, not sanitation. Applicant’s “Sanitee” is a coined,
stylized term (not a dictionary word) that evokes
sanitation, hygiene, or cleanliness – a completely different
commercial impression. Consumers are unlikely to
associate a mental health-related term (SANITY) with a
hygiene product (SANITEE). Applicant contends
distinction based on disparate meanings of the words as
spelled.
9 TTABVUE 2.
Applicant further argues in its reply brief that
The -EE ending of Applicant’s mark SANITEE makes it
visually and phonetically distinct from the -Y ending of the
registered mark SANITY. The two marks are clearly
distinct visually due to the different endings. Additionally,
the -EE ending naturally shifts the pronounced emphasis
to the final syllable (san-ih-TEE) rather than the primary
stress being on the first syllable as when pronouncing the
word “sanity” (SAN-ih-tee). This difference, coupled with
the distinctive spelling of SANITEE, reinforces that the
marks are not likely to be confused in sight or sound.
Id. at 2-3.
Before we discuss our analysis under the first DuPont factor, we must note two
troubling citations in Applicant’s reply brief regarding that factor. Applicant cites “In
re Bay Brewing Co. (TTAB 1998)” for the proposition that “differences in meaning
between marks can outweigh similarities in sound,” 9 TTABVUE 2, and “In re Viterra

Serial No. 97741879
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Inc. (Fed. Cir. 2009),” for the proposition that “small spelling differences can be
enough to avoid confusion if the meanings differ.” 9 TTABVUE 3.
Applicant does not provide a reporter citation for “In re Bay Brewing Co. (TTAB
1998),” and we could not locate any such case in any legal database or in TTABVUE.
In the absence of any other plausible explanation, we can only conclude that the cited
“In re Bay Brewing Co. (TTAB 1998)” case was “hallucinated” by generative artificial
intelligence. Parties appearing before the Board are free to use AI in preparing their
filings, but they obviously cannot use it to create cases that do not actually exist. See
generally “Guidance on Use of Artificial Intelligence-Based Tools in Practice Before
the United States Patent and Trademark Office,” 89 Fed. Reg. 25609 (Apr. 11,
2024) (parties using AI to draft papers must confirm the accuracy of all facts and
citations to case law).
Applicant also does not provide a reporter citation for “In re Viterra Inc. (Fed. Cir.
2009),” but as noted above, there is a Viterra decision by the Federal Circuit that
issued in 2012. That decision did not hold, however, that “small spelling differences
can be enough to avoid confusion if the meanings differ,” as Applicant claims, 9
TTABVUE 3; instead, as discussed immediately below, it effectively reached the
opposite conclusion in holding that the Board had properly found that the involved
marks were confusingly similar notwithstanding “small spelling differences” and
claimed differences in their pronunciations and meanings.
In Viterra, the Federal Circuit upheld the Board’s decision affirming a refusal to
register the standard-character mark XCEED for agricultural seed over a

Serial No. 97741879
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registration of X-SEED and design for the same goods. The court upheld the Board’s
finding rejecting the applicant’s argument that “XCEED and X–Seed are not phonetic
equivalents because XCEED will be pronounced ‘exceed’ with an emphasis on the
second syllable (i.e., ikSEED), whereas X–Seed will be pronounced with an emphasis
on the first syllable (i.e., EKS-seed),” and the Board’s finding that “‘it is hard to
imagine that the two marks will not sound alike when spoken.’” Viterra, 671 F.3d at
1367 (record citation omitted). The court also held that “substantial evidence supports
the Board’s determination that any minor differences in the sound of these marks
may go undetected by consumers and, therefore, would not be sufficient to distinguish
the marks.” Id. Finally, the court noted that the applicant “contend[ed] that the
marks have different connotations because its XCEED mark will be construed by
customers as ‘exceeding’ their expectations, whereas the X–Seed Mark is subject to a
variety of meanings, including the roman numeral for ten, an unknown quantity, or
an abbreviation for ‘cross,’” id., but the court upheld the Board’s finding that “it is
reasonable that purchasers will perceive registrant’s mark in a similar manner, that
is, purchasers may give the same meaning of superiority to registrant’s mark.’” Id.
(record citation omitted).
The most plausible explanation of Applicant’s miscitation of the Viterra decision
is again that AI was used and caused Applicant to advance an argument that is not
only unsupported by Viterra, but directly undercut by it. Applicant’s miscitation of
Viterra is no less troubling, however, if Applicant did not use AI, but simply
misrepresented the holding and analysis in the case. Parties appearing before the

Serial No. 97741879
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Board have a duty to review and verify the contents of each filing presented to the
Board, and those appearing pro se are no exception. See, e.g., Hole in 1 Drinks, Inc. v.
Lajtay, Canc. No. 92065860, 2020 WL 859853, at *1 (TTAB 2020). Applicant breached
that duty in citing “In re Bay Brewing Co.” and Viterra in its reply brief.
Turning now to the issue of the similarity or dissimilarity of the involved marks,
Applicant concedes that SANITY and SANITEE “share an initial phonetic
similarity,” 6 TTABVUE 2, and that “phonetic similarities exist.” 9 TTABVUE 2.
Applicant also acknowledges that “[t]he word ‘sanity’ is a common English word
meaning ‘soundness of mind’,” id., and, as such, it has an understood pronunciation.
Look Cycle Int’l v. Kunshan Qiyue Outdoor Sports Goods Co., Canc. No. 92079409,
2024 WL 3739358, at *10 (TTAB 2024) (“Petitioner’s mark contains the word LOOK
which has a known pronunciation.”). Dictionary evidence in the record shows that the
suffixes -TY and -TEE are phonetic equivalents in American English,27 and there is
no evidence supporting Applicant’s argument in its reply brief that “the -EE ending
naturally shifts the pronounced emphasis to the final syllable (san-ih-TEE) rather
than the primary stress being on the first syllable as when pronouncing the word
‘sanity’ (SAN-ih-tee).” 9 TTABVUE 2.28 See Cai, 901 F.3d at 1371 (assertions in brief
are “not evidence under any of the relevant rules . . . .”).
27 April 29, 2025 Denial of Request for Reconsideration at TSDR 9-17 (COLLINS DICTIONARY).
28 This argument looks similar to the applicant’s unsuccessful argument in Viterra that
“XCEED and X–Seed are not phonetic equivalents because XCEED will be pronounced
‘exceed’ with an emphasis on the second syllable (i.e., ikSEED), whereas X–Seed will be
pronounced with an emphasis on the first syllable (i.e., EKS-seed).” Viterra, 671 F.3d at 1367
(record citation omitted). In Viterra, the applicant at least “presented dictionary evidence to

Serial No. 97741879
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We agree with Applicant that its SANITEE “mark is a made-up word and has no
established pronunciation,” but “we must consider all reasonable possibilities” for its
pronunciation. Look Cycle, 2024 WL 3739358, at *10 (citing StonCor Grp., Inc. v.
Specialty Coatings, Inc., 759 F.3d 1327, 1332 (Fed. Cir. 2014)). It is at least a
“reasonable possibility” that the SANITEE mark “can be pronounced in a manner
that rhymes with” the cited SANITY mark. Id. (finding that a “significant segment of
consumers will pronounce Respondent’s [BLOOKE] mark as rhyming with
Petitioner’s [LOOK] mark,” and that the fact that “the marks rhyme . . . presents a
similarity in sound.”).
As with the X-Seed and design and XCEED marks in Viterra, “it is hard to imagine
that the two marks [SANITY and SANITEE] will not sound alike when spoken.”
Viterra, 671 F.3d at 1371 (internal quotation and quotation marks omitted.). We find
that the marks are very similar phonetically, if not identical.
We agree with Applicant that there are minor differences in appearance between
the suffixes in the SANITY and SANITEE marks that may be noticed when the marks
are viewed together, “[b]ut marks ‘must be considered . . . in light of the fallibility of
memory’ and ‘not on the basis of side-by-side comparison.’” St. Helena Hosp., 774 F.3d
at 751 (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565
F.2d 683, 685 (CCPA1977)). There is again “nothing in the record to persuade us that
the Board to support its contentions,” id., while here Applicant presented no supporting
evidence on this or any other point.

Serial No. 97741879
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any of the differences argued by [Applicant] meaningfully distinguish the appearance
of the respective marks.” Id.
Finally, with respect to connotation and commercial impression, there is no record
evidence to support Applicant’s argument that its SANITEE mark “may evoke
associations with casual or playful goods (e.g., ‘tee’ as in a T-shirt, or in various sports
such as tee ball, or as in a golf tee), distinguishing it from the more clinical or abstract
impression of SANITY.” 6 TTABVUE 2. Applicant’s alternative argument that its
SANITEE mark “evokes sanitation, hygiene, or cleanliness – a completely different
commercial impression” from the mental-health connotation of SANITY, 9 TTABVUE
2, assumes a level of subtlety of consumer perception and retention that is
inconsistent with our working assumption, in the absence of contrary evidence, that
the average consumer “retains a general rather than specific impression of the
marks,” Embiid, 2021 WL 2285576, at *4 (citation omitted), and the need to compare
the marks “in light of the fallibility of memory and not on the basis of side-by-side
comparison.” St. Helena Hosp., 774 F.3d at 751 (quotation and quotation marks
omitted). Applicant points to no record evidence supporting this alternative claimed
meaning of the SANITEE mark, and even if it exists, consumers who separately
encounter the phonetically- and visually-similar SANITY and SANITEE marks are
unlikely to appreciate the subtle differences in meaning urged by Applicant.
“Similarity is not a binary factor but is a matter of degree.” Id. (quoting In re Coors
Brewing Co., 343 F.3d 1340 1344 (Fed. Cir. 2003)). There are minor differences in
appearance and possibly in meaning, but they are outweighed by the strong phonetic

Serial No. 97741879
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similarity of the marks. We find that the first DuPont factor supports a conclusion
that confusion is likely.
C. Summary
The key first and second DuPont factors, and the third factor, support a conclusion
that confusion is likely, with the second and third factors strongly supporting that
conclusion. The goods and channels of trade are legally identical, and when the marks
are applied to the legally-identical goods sold through the same channels of trade to
the same purchasers, consumers familiar with the cited SANITY mark who
separately encounter Applicant’s SANITEE mark are likely to believe mistakenly
that the goods have a common source.
Decision: The refusal to register is affirmed.