G. Cole Corporation

This Opinion is not a
Precedent of the TTAB
Mailed: November 25, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re G. Cole Corp.
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Serial No. 97585401
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Bobby W. Braxton of Braxton Perrone PLLC
for G. Cole Corp.
Miroslav Novakovic, Trademark Examining Attorney, Law Office 108,
Kathryn E. Coward, Managing Attorney.
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Before Heasley, Pologeorgis, and Elgin,
Administrative Trademark Judges.
Opinion by Heasley, Administrative Trademark Judge:
Applicant, G. Cole Corp., seeks registration on the Principal Register of the mark
HYDROSHIELD (in standard characters) for “architectural protective coatings for
roofs; water-based roof coating” in International Class 2.1
1 Application Serial No. 97585401 was filed on September 9, 2022, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of first use anywhere and
use in commerce since at least as early as December 31, 2010.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system and identify the documents by title, date, and page in the
downloadable .pdf version. Citations to the briefs and other materials in the appeal record
refer to the Board’s TTABVUE online docket system.

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The Examining Attorney has refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as used in
connection with these goods, so resembles the registered mark HYDROSHIELD (in
standard characters) for “roofing products, namely, roofing underlayments, roofing
felts, and flexible synthetic sheet materials for temporary or emergency roof
protection; and related parts and accessories for roofing and roofing products, namely,
woven and nonwoven textiles for use as housewraps and housewrap tapes,” in
International Class 19, as to be likely to cause confusion, to cause mistake, or to
deceive.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal proceeded. We affirm the refusal to register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act provides that a mark may be refused
registration if it:
[c]onsists of or comprises a mark which so resembles a mark registered in
the Patent and Trademark Office, or a mark or trade name previously used
in the United States by another and not abandoned, as to be likely, when
used on or in connection with the goods of the applicant, to cause confusion,
or to cause mistake, or to deceive….
15 U.S.C. § 1052(d).
“Confusion as to source is the bête noire of trademark law—the thing that stands
directly opposed to the law’s twin goals of facilitating consumers’ choice and
2 Registration No. 6081029 issued on the Principal Register on June 16, 2020.

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protecting producers’ good will.” Jack Daniel’s Props., Inc. v. VIP Prods. LLC, 599
U.S. 140, 147 (2023).
“‘Whether a likelihood of confusion exists’ is ‘aided by application of the thirteen
DuPont factors.’” Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d
1315, 1319 (Fed. Cir. 2018) (citing In re E. I. DuPont DeNemours & Co., 476 F.2d
1357, 1361 (CCPA 1973)). “The likelihood of confusion analysis considers all DuPont
factors for which there is evidence of record but ‘may focus . . . on dispositive factors,
such as similarity of the marks and relatedness of the goods.’ Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 1265 (Fed. Cir. 2002) (alteration in original)
(quoting Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 1336 (Fed. Cir.
2001)).” Sunkist Growers, Inc. v. Intrastate Distribs., Inc., 144 F.4th 1376, 1379 (Fed.
Cir. 2025).
A. Identity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 476 F.2d at
1361. “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, LLC, No. 87075988, 2018 WL 2734893,
*5 (TTAB 2018) (citing In re Davia, No. 85497617, 2014 WL 2531200, *2 (TTAB 2014),
aff’d 777 Fed. Appx. 516 (Fed. Cir. 2019)).

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In this case, the marks are identical. Both HYDROSHIELD marks appear and
sound the same, and both convey the same connotation and commercial impression
of shielding roofs from water.
Applicant does not address the factor in its briefs, thus “[a]pparently conceding
the issue.” In re Morinaga Nyugyo K.K., No. 86338392, 2016 WL 5219811, *2 (TTAB
2016).
For these reasons, the first DuPont factor weighs heavily in favor of finding a
likelihood of confusion. This also affects our findings under the second DuPont factor,
for “[w]here identical marks are involved, as is the case here, the degree of similarity
between the goods required to support a finding of likelihood of confusion declines.”
In re Samsung Display Co., No. 90502617, 2024 WL 3451873, *4 (TTAB 2024).
B. Similarity of the Goods, Channels of Trade, and Classes of
Customers
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration” and the third
DuPont factor concerns “[t]he similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 476 F.2d at 1361.
Applicant’s identified goods, once again, are “architectural protective coatings for
roofs; water-based roof coating,” and Registrant’s identified goods are “roofing
products, namely, roofing underlayments, roofing felts, and flexible synthetic sheet
materials for temporary or emergency roof protection; and related parts and
accessories for roofing and roofing products, namely, woven and nonwoven textiles
for use as housewraps and housewrap tapes.”

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Applicant submits that the goods are dissimilar. “Roof coatings are completely
dissimilar from the felts and synthetic sheet for the ’029 Registration. Those of
ordinary skill will understand that water-based roof coatings are completely
dissimilar from textiles, such that confusion will be precluded.”3
However, “[t]he issue is not whether purchasers would confuse the goods, but
rather whether there is a likelihood of confusion as to the source of these goods.” In
re Samsung, 2024 WL 3451873, at *3 (emphasis added).
The relevant inquiry considers “if the respective products are related in some
manner and/or if the circumstances surrounding their marketing are such that they
could give rise to the mistaken belief that they emanate from the same source.”
Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1363 (Fed. Cir. 2022)
(emphasis added) (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
1356, 1369 (Fed. Cir. 2012)).
The evidence shows that Applicant’s roof coatings and Registrant’s roofing
underlayments are related in their function and purpose, and often emanate from the
same source. A roof coating, applied atop the shingles or other roof coverings, serves
as a barrier to prevent leaks.4 A roofing underlayment, made from felt or other
materials, is placed under the roof covering to provide another layer of protection
3 Applicant’s main brief, 6 TTABVUE 5; Applicant’s reply brief, 9 TTABVUE 3.
4 “When properly applied, a roof coating can be a highly effective barrier to prevent leaks.”
Polyglass.us/product-type/elastomeric-roof-coatings/. May 29, 2024 Office Action at 52.

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from moisture or leakage.5 The two layers—coating and underlayment—thus
complement one another, as they have a common function and purpose of preventing
water leakage in roofing. In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565,
1567 (Fed. Cir.1984) (“complementary use has long been recognized as a relevant
consideration in determining a likelihood of confusion.”); In re Iolo Techs., No.
77399654, 2010 WL 2513865, *3 (TTAB 2010) (finding goods similar where the
products are “complementary in function and purpose”).
Moreover, the record shows that the same source commonly provides roof coatings
and underlayments. The Examining Attorney has adduced evidence of a dozen third-
party companies—such as Polyglass, Best Materials, Henry, Roofing Direct, and
Roofing4US—that provide both roof coatings and underlayments under the same
mark.6 This evidence suggests that consumers are accustomed to seeing a single mark
associated with a single source that sells both sorts of roofing products. In re Detroit
Athletic Co., 903 F.3d 1297, 1306-07 (Fed. Cir. 2018).
We find accordingly that the respective goods are related, see Naterra Int’l, Inc. v.
Bensalem, 92 F.4th 1113, 1117 (Fed. Cir. 2024). As the third-party evidence indicates,
the goods pass through the same channels of trade to the same class of customers:
owners of residential and/or commercial structures with roofs. In re Dare Foods Inc.,
5 “Many people believe that roofing is about the asphalt shingles or metal roofing that is
visible to the naked eye. But what most don’t know is that there is another layer of protection
that is placed on top of the roof deck and under the roof covering that protects your roof and
house from moisture and damage. This layer is called roofing underlayment.”
Rubberized.com/product-category/roof-underlayments/. May 29, 2024 Office Action at 33.
6 Aug. 15, 2023 Office Action at 8-71; May 29, 2024 Office Action at 7-104.

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No. 88758625, 2022 WL 970319, *4 (TTAB 2022).
Consequently, the second and third DuPont factors weigh heavily in favor of a
likelihood of confusion.
C. Length of Use of Applicant’s Mark
Applicant further asserts that it “has been using the mark with roof coatings since
2010. This is over a decade of usage, which precludes a likelihood of confusion.”7
Applicant does not explain how this asserted duration of use precludes a likelihood
of confusion. But in any event, this argument fails for several reasons.
First, the dates of use claimed in an application, such as Applicant’s, are not
evidence on behalf of Applicant. “The allegation in an application for registration, or
in a registration, of a date of use is not evidence on behalf of the applicant or
registrant; a date of use of a mark must be established by competent evidence.”
Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2). Applicant has submitted no
other evidence of its first use of its mark, and its counsel’s assertions to this effect are
unsupported. “Attorney argument is no substitute for evidence.” Cai v. Diamond
Hong, Inc., 901 F.3d 1367, 1372 (Fed. Cir. 2018), quoted in In re Mission Am.,
Coalition, No. 90019480, 2023 WL 2139407, *6 (TTAB 2023).
Second, if, by this argument, Applicant is claiming priority over Registrant in the
use of HYDROSHIELD, we remind Applicant that the subject Registration is
presumed valid. Trademark Act Section 7(b), 15 U.S.C. § 1057(b); SoClean, Inc. v.
7 Applicant’s main brief, 6 TTABVUE 5; Applicant’s reply brief, 9 TTABVUE 3.

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Sunset Healthcare Sols., Inc., 52 F.4th 1363, 1369 (Fed. Cir. 2022). And it cannot be
collaterally attacked in this ex parte proceeding. In re Charger Ventures LLC, 64
F.4th 1375, 1383 (Fed. Cir 2023) (an ex parte proceeding is not the proper forum for
a trademark applicant to launch an attack on a registered mark) (quoting In re Detroit
Athletic Co., 903 F.3d at 1309 ); see also TMEP § 1207.01(d)(iv) (Nov. 2025) (collateral
attack on registration improper in ex parte proceeding).
Third, if, by this argument, Applicant is asserting, under the seventh and eighth
DuPont factors, that its mark has coexisted with Registrant’s in the marketplace
without actual confusion on the part of consumers, we remind Applicant that
“uncorroborated statements of no known instances of actual confusion are of little
evidentiary value” In re Majestic Distilling Co., Inc., 315 F.3d 1311, 1317 (Fed. Cir.
2003); In re Opus One Inc., No. 75722593, 2001 WL 1182924, *7 (TTAB 2001) (“The
fact that an applicant in an ex parte case is unaware of any instances of actual
confusion is generally entitled to little probative weight in the likelihood of confusion
analysis, inasmuch as the Board in such cases generally has no way to know whether
the registrant likewise is unaware of any instances of actual confusion, nor is it
usually possible to determine that there has been any significant opportunity for
actual confusion to have occurred.”)
II. Conclusion
On consideration of all the evidence and arguments under the applicable law, we
find that the marks are identical, that the goods are related and pass through the
same channels of trade to the same class of customers, and that the length of

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Applicant’s use of its mark is unproven, and fails to controvert the first, second, and
third DuPont factors, all of which weigh heavily in favor of finding a likelihood of
confusion.
We find accordingly that there is a likelihood of confusion between Applicant’s and
Registrant’s marks, as used on their identified goods. 15 U.S.C. § 1052(d).
Decision: The refusal to register Applicant’s mark is affirmed.