Bass Assassin Lures, Inc. v. Flashin Assassin Fishing Lures, L.L.C.

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THIS OPINION IS NOTA
PRECEDENT OF THE TTAB

Mailed: July 10, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

Bass Assassin Lures, Inc.
V.
Flashin Assassin Fishing Lures, L.L.C.

Cancellation No. 92085824

Adrienne Love of Stearns Weaver Miller Weissler Alhadeff & Sitterson PA,
for Bass Assassin Lures, Inc.

Steven Scott Lloyd of Practus LLP,
for Flashin Assassin Fishing Lures, L.L.C.

Before Wellington, Cohen and Lavache,
Administrative Trademark Judges.

Opinion by Cohen, Administrative Trademark Judge:
Respondent Flashin Assassin Fishing Lures L.L.C. owns a Principal Register

registration for the standard character mark FLASHIN’ ASSASSIN for:

Fishing lures; lures for fishing; artificial fishing lures; fishing jigs; fishing jig
heads, in International Class 28.!

1 Registration No. 7346337 issued April 2, 2024, based on an application filed on March 16,
2023.

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Petitioner Bass Assassin Lures, Inc. seeks cancellation of Respondent’s
Registration under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a
likelihood of confusion with its registrations and alleged prior common law rights in
ASSASSIN and ASSASSIN-formative marks for a variety of goods including fishing
lures in International Class 28.2
In its Answer, Respondent denied most of the salient allegations of the petition to
cancel but admitted3 that Petitioner is the “owner of record for Registration Nos.
1,754,053 (“BASS ASSASSIN”); 1,994,156 (“SALT WATER ASSASSIN”); 2,138,892
(“WALLEYE ASSASSIN”); 2,775,341 (“PANFISH ASSASSIN”); 3,739,711 (“BASS
ASSASSIN” stylized); 3,771,452 (“SALT WATER ASSASSIN” stylized); 3,792,545
(“PANFISH ASSASSIN” stylized); and 5,006,843 (“ASSASSIN”).”4
The case is briefed. We grant the petition to cancel.
I. The Record
The record consists of the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of Respondent’s Registration. Petitioner also introduced
additional evidence and testimony which we do not list here. Respondent did not
2 1 TTABVUE 17-18, ¶¶ 6-15.
Citations to the record and briefs reference TTABVUE, the Board’s online docket system. See,
e.g., New Era Cap Co., Inc. v. Pro Era, LLC, 2020 WL 2853282, at *1 n.1 (TTAB 2020).
3 Respondent asserted the affirmative defenses of waiver, acquiescence and laches in its
answer and later moved to have those defenses stricken, which the Board granted. 6
TTABVUE 5; 14 TTABVUE. In its purported fourth affirmative defense, Respondent’s
assertions are not a true affirmative defense (6 TTABVUE 5, Fourth Affirmative Defense),
so we do not address it as such. See, e.g., DeVivo v. Ortiz, No. 91242863, 2020 WL 1227592,
at *1 (TTAB 2020) (mere amplifications of the applicant’s denials not considered as separate
affirmative defenses).
4 1 TTABVUE 6, ¶3; 6 TTABVUE 2, ¶3.

Cancellation No. 92085824
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introduce any evidence or take testimony during its testimony period but is not
required to do so.5 Shenzhen IVPS Tech. Co. Ltd. v. Fancy Pants Prods., LLC, No.
91263919, 2022 WL 16646840, at *2 (TTAB 2022) (“Applicant did not take testimony
or introduce any evidence during its testimony period nor file a brief, but it is not
required to do so.”) (citing Yazhong Investing Ltd. v. Multi-Media Tech. Ventures,
Ltd., No. 92056548, 2018 WL 2113778, at *4 n.13 (TTAB 2018).
Although we do not list the contents of the record, the entire record has been
carefully considered and relevant evidence is discussed throughout this opinion. See
Quiktrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 1036 (Fed. Cir. 2021) (Board
not obliged to expressly discuss every piece of evidence); In re Miracle Tuesday LLC,
695 F.3d 1339, 1348 (Fed. Cir. 2012) (“[T]he mere fact that the Board did not recite
all of the evidence it considered does not mean the evidence was not, in fact,
reviewed.”); Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (“The fact
that [a particular piece of evidence] was not specifically mentioned in the Board’s
decision in this case is insufficient to overcome this presumption [that the Board
reviewed all the evidence in the record].”); Plant Genetic Sys., N.V. v. DeKalb Genetics
Corp., 315 F.3d 1335, 1343 (Fed. Cir. 2003) (“We presume that a fact finder reviews
all the evidence presented unless he explicitly expresses otherwise.”); Gonzales v.
5 Concurrent with its late-filed trial brief, Respondent filed a motion to extend the time to file
its trial brief. In response, Petitioner has sought to strike Respondent’s brief. Because it
serves our policy of deciding cases on their merits and it benefits our ability to make a just
determination of the case to have the briefs of both parties before it, we have exercised our
discretion to “consider Respondent’s arguments in [its] brief, for whatever persuasive value
they may have ….” See Hole in 1 Drinks, Inc. v. Lajtay, No. 92065860, 2020 WL 859853, at
*3 (TTAB 2020).

Cancellation No. 92085824
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West, 218 F.3d 1378, 1381 (Fed. Cir. 2000) (“absent specific evidence indicating
otherwise, all evidence contained in the record ... must be presumed to have been
reviewed by [the agency]”).
II. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action is an element of the plaintiff’s case in
every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed.
Cir. 2020). To establish entitlement to a statutory cause of action in an opposition
proceeding, an opposer must demonstrate: (i) an interest falling within the zone of
interests protected by the statute and (ii) a reasonable belief in damage proximately
caused by the registration of the mark. Id.
Petitioner’s entitlement to seek cancellation of Respondent’s Registration on the
ground of likelihood of confusion is established by its unchallenged pleaded
registrations which Petitioner properly made of record by submitting copies of the
registrations and status and title copies in its notice of reliance.6 See Trademark Rule
2.122 (d)(1) (registration of the petitioner in a petition to cancel will be received in
evidence and made part of the record if the petition is accompanied by an original or
photocopy of the registration or by a current copy of information from the electronic
database records of the Office showing both the current status of and current
title); Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 WL
16646840, at *6 (TTAB 2022) (valid and subsisting pleaded registration establishes
6 19 TTABVUE.

Cancellation No. 92085824
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opposer’s direct commercial interest in the proceeding and its belief in damage) (citing
Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000)).
Also, the testimony declaration of its Chief Operations Officer, Audra Linda
Shiver Rutherford, who testified that since April 6, 1988, Petitioner “has continuously
marketed and sold fishing lures under the Bass Assassin and various other Assassin
trademarks,”7 is sufficient to establish that Petitioner has a real interest in this
proceeding and a reasonable basis for its belief in damage. See Monster Energy Co. v.
Lo, No. 91225050, 2023 WL 417620, at *5 (TTAB 2023) (entitlement found based on
declaration of opposer’s CEO attesting to opposer’s use of allegedly similar pleaded
mark).
III. Section 2(d) Claim
A. Initial Matter
Petitioner pleads ownership of eight registrations. However, we focus our analysis
on Petitioner’s standard character mark ASSASSIN8 for:
“Fishing tackle, fishing floats, artificial fishing bait and artificial plastic
fishing lures” in International Class 28.
If we do not find a likelihood of confusion with respect to these marks and these
goods, then there would be no likelihood of confusion with the marks and goods in
Petitioner’s other registrations.9 See Sock It To Me, Inc. v. Fan, No. 91230554, 2020
7 Rutherford Decl., 16 TTABVUE 4, ¶2.
8 Registration No. 5006843 (the “’843 registration or ’843 mark”) was filed November 17, 2015
and issued July 26, 2016; it has been renewed.
9 Although Petitioner pleads ownership in a family of marks consisting of ASSASSIN,
because we find a likelihood of confusion with Respondent’s Registration and the ’843
registration, we need not analyze whether a likelihood of confusion exists with Petitioner’s

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WL 3027605, at *9 (TTAB 2020) (confining Section 2(d) analysis to most similar
pleaded mark) (citing N. Face Apparel Corp. v. Sanyang Indus. Co., No. 91187593,
2015 WL 6467820, at *7 (TTAB 2015)); Max Cap. Grp., 2010 WL 22358 at *2.
B. Priority
“In a cancellation proceeding such as this one where both parties own
registrations, priority is in issue.” Double Coin Holdings Ltd. v. Tru Dev., No.
92063808, 2019 WL 4877349, *5 (TTAB 2019). “[B]ecause both parties have
registrations, it is [Petitioner’s] burden to demonstrate that its use of its . . . mark[s]
is prior to [Respondent’s] use of its registered mark[ ].” Calypso Tech., Inc. v. Calypso
Cap. Mgmt., LP, No. 91184576, 2011 WL 4090446, at *7 (TTAB 2011). Each party
may rely on the filing dates of the applications that matured into their respective
registrations, or on earlier dates of proven use. Sabhnani v. Mirage Brands, LLC, No.
92068086, 2021 WL 6072822, *7 (TTAB 2021).
Inasmuch as Respondent has submitted no evidence or testimony regarding its
first use of the FLASHIN’ ASSASSIN mark, it must rely on the filing date of the
underlying application, March 16, 2023. Petitioner’s ’843 registration has filing
(November 17, 2015) and registration (July 26, 2016) dates that precede Respondent’s
filing date.
purported family of marks. See, e.g., McDonalds Corp. v. McSweet LLC, No. 91178758, 2014
WL 5282256, at * (TTAB 2014) (“If an opposer is found to own a family of marks for a range
of goods, that is an additional factor-- beyond the similarities between applicant’s mark and
goods, and any one of opposer's marks and goods--weighing in favor of a likelihood of
confusion.”); see also New Era Cap, 2020 WL 2853282, at *7 (“Neither the mere intention to
create a family of marks, nor ownership of multiple registrations containing the family term,
is sufficient in and of itself to establish that a party owns a family of marks.”).

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Petitioner’s priority is established.
C. Likelihood of Confusion
Trademark Act Section 2(d) prohibits the registration of a mark that:
[c]onsists of or comprises a mark which so resembles a mark registered in the
Patent and Trademark Office, or a mark or trade name previously used in the
United States . . . 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); see also Cunningham, 222 F.3d at 946; Life Zone Inc. v.
Middleman Grp. Inc., No. 91160999, 2008 WL 2781162, at *6 (TTAB 2008). To
determine whether there is a likelihood of confusion between marks under Section
2(d), we analyze the evidence and arguments under the factors set forth in In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). The Board
considers each factor for which there is evidence and argument. Spireon, Inc. v. Flex
Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023); In re Guild Mortg. Co., 912 F.3d 1376, 1380
(Fed. Cir. 2019). “The weight given to each factor depends on the circumstances of
each case.” In re Charger Ventures LLC, 64 F.4th 1375, 1381 (Fed. Cir. 2023) (citation
omitted); see also Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1362
(Fed. Cir. 2022) (“Not all of the … factors are necessarily relevant or of equal weight
in a given case, and any one of the factors may control a particular case.”) (cleaned
up). Typically, the factors that compare the respective marks and the goods or
services are key considerations. See, e.g., Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 1103 (CCPA 1976); In re Max Cap. Grp. Ltd., No. 77186166, 2010
WL 22358 at *1 (TTAB 2010).

Cancellation No. 92085824
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1. The Goods, Trade Channels and Classes of Consumers
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 the “similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 476 F.2d at 1361. We compare the goods as they
are identified in the relevant registrations. In re Detroit Athletic Co., 903 F.3d 1297,
1306 (Fed. Cir. 2018); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
1369 (Fed. Cir. 2012).
Likelihood of confusion may be found as to each class in its entirety if it exists as
to any good in that class. Sabhnani, 2021 WL 6072822, at *9 n.17 (citations omitted);
see also Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No. 91270181, 2024
WL 1638376, at *8 n.41 (TTAB 2024) (“It is sufficient for a finding of likelihood of
confusion if relatedness is established for any item encompassed by the identification
of goods or services within a particular class in the application”).
Although attempting to distinguish the parties’ goods based on the materials used
in construction of the goods,10 Respondent does not otherwise dispute that the
identified goods are in-part identical. Respondent’s Registration includes “fishing
lures; lures for fishing; artificial fishing lures” whereas the ’843 registration includes
10 26 TTABVUE 8 (“Moreover, those purchasing fishing lures will understand that the plastic
construction of Petitioner’s products are not the same as the construction of Registrant’s
products, and will be able to make purchasing decisions based on the differences of the
products, which have different applications.”). As noted, we compare the goods as they are
identified in the relevant registrations and here, there are no restrictions based on materials
used in construction of Respondent’s goods. In re Detroit Athletic Co., 903 F.3d 1297, 1306
(Fed. Cir. 2018)

Cancellation No. 92085824
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“artificial plastic fishing lures.” Respondent’s broadly identified goods, on their face,
encompass Petitioner’s more narrowly identified “artificial plastic fishing lures.”
Therefore, the parties’ goods are legally identical in part. See In re St. Julian Wine
Co., No. 87834973, 2020 WL 2788005, at *5 (TTAB 2020); In re Info. Builders Inc.,
No. 87753964, 2020 WL 2094122, at *4 (TTAB 2020) (finding services legally identical
in part where registrant’s services encompassed by applicant’s services); In re Hughes
Furniture Indus., Inc., No. 85627379, 2015 WL 1734918, at *3 (TTAB 2015)
(“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses
Registrant’s narrowly identified ‘residential and commercial furniture.’”).
Because the goods are legally identical, we presume that the channels of trade and
classes of consumers for the identical goods overlap.11 In re Viterra Inc., 671 F.3d
1358, 1362 (Fed. Cir. 2012) (even though there was no evidence regarding channels
of trade and classes of consumers, the Board was entitled to rely on this legal
presumption in determining likelihood of confusion); Am. Lebanese Syrian Associated
11 Indeed, Petitioner asserts that fishing lures are typically displayed side-by-side on a
pegboard in tackle shops or the outdoors section of a larger retailer; and that both parties’
goods are sold “online in the same department or product category.” 22 TTABVUE 33; see
Thornton deposition, 18 TTABVUE 61. Petitioner submits photographs as Exhibits 29-30
with the excerpted Thornton deposition but not the corresponding Thornton deposition
testimony. Id. at 118-19. However, Petitioner also submitted the same photographs as
Exhibit K with its Chief Operations Officer’s declaration. Rutherford declaration, 16
TTABVUE 78-79. Additionally, the photographs which purport to show how some fishing
lures are sold in retail stores are blurry, even when enlarged, making some of the products
sold unclear and the labels illegible. See DC Comics v. Cellular Nerd LLC, No. 91246950,
2022 WL 17832492, at *4 (TTAB 2022) (“The party who submits Internet materials must
ensure that the evidence is legible.”). We consider only the portion of the evidence that is
clear and legible.
In response to Petitioner’s interrogatory no. 10, Respondent answers that its intended
customer is the “fishing community generally, without regard to age, gender or socioeconomic
status….” 17 TTABVUE 11.

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Charities Inc. v. Child Health Rsch. Inst., No. 91190361, 2011 WL 4090447, at *6
(TTAB 2011).
The legal identity of some of the goods and their overlapping channels of trade
and classes of consumers not only weigh heavily in favor of finding a likelihood of
confusion but also reduce the degree of similarity between the marks necessary to
find a likelihood of confusion. In re Viterra, 671 F.3d at 1363; In re Mighty Leaf Tea,
601 F.3d 1342, 1348 (Fed Cir. 2010).
2. Strength/Weakness of Petitioner’s Mark
We consider the strength or weakness of Petitioner’s ’843 mark as used in
connection with the relevant goods because such a determination helps inform us as
to their scope of protection. See Made in Nature, LLC v. Pharmavite LLC, No.
91223352, 2022 WL 2188890, at *11-12 (TTAB 2022) (quoting DuPont, 476 F.2d at
1361). “A well-known mark enjoys an appropriately wider latitude of legal protection,
for similar marks tend to be more readily confused with a mark that is already known
to the public.” Opryland USA Inc. v. Great Am. Music Show, Inc., 970 F.2d 847, 851
(Fed. Cir. 1992) (citation omitted).
When evaluating the strength or weakness of a mark, we look at the mark’s
inherent strength based on the nature of the term itself, and its commercial strength
in the marketplace. Spireon, 71 F.4th at 1362-63 (“Two of the DuPont factors (the
fifth and sixth) consider strength.”); In re Chippendales USA, Inc., 622 F.3d 1346,
1353-54 (Fed. Cir. 2010) (measuring both conceptual and marketplace strength); see
also Made in Nature, 2022 WL 2188890, at *11-12 (quoting DuPont, 476 F.2d at
1361); New Era Cap, 2020 WL 2853282, at *12 (“[T]he strength of a mark is not a

Cancellation No. 92085824
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binary factor, but varies along a spectrum from very strong to very weak.”) (quoting
In re Coors Brewing Co., 343 F.3d 1340, 1345 (Fed. Cir. 2003)). The fifth DuPont factor
enables a petitioner to prove that its pleaded mark is entitled to an expanded scope
of protection by adducing evidence of the fame of the prior mark (sales, advertising,
length of use). By contrast, the sixth DuPont factor allows a respondent to argue that
confusion is less likely by adducing evidence of conceptual and commercial weakness.
Spireon, 71 F.4th at 1362.
a) The Sixth DuPont Factor
We start by considering the conceptual strength of the ’843 mark. Spireon, 71
F.4th at 1362. Respondent submitted no evidence of third-party registrations or any
other evidence of conceptual weakness of the ’843 mark.12 On this record, “[t]he
inherent or conceptual strength of [Petitioner’s ’843] mark is not seriously at issue.
Petitioner’s mark is inherently distinctive as evidenced by its registration on the
Principal Register without a claim of acquired distinctiveness under Section 2(f) of
the Trademark Act.” New Era Cap, 2020 WL 2853282, at *11; see also 15 U.S.C.
§ 1057(b) (registration is “prima facie evidence of the validity of the registered
mark”).
12 Respondent identified two third-party registrations for the marks SILENT ASSASSIN and
ASSASSIN WALLEYE SERIES in response to Petitioner’s interrogatory no. 18. 17
TTABVUE 15. The registrations have not been made of record and the Board does not take
judicial notice of third-party registrations. See In re House Beer, LLC, No. 85684754, 2015
WL 1646441, at *1 (“[T]he Board does not take judicial notice of the files of applications or
registrations residing in the Office.”).

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b) Fifth DuPont Factor
Turning to commercial strength or fame under the fifth DuPont factor, “[a] mark
with extensive public recognition and renown deserves and receives more legal
protection than an obscure or weak mark.” Omaha Steaks Int’l, 908 F.3d at 1319
(quoting Kenner Parker Toys Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 353 (Fed. Cir.
1992)). Such strength rests on the extent to which “a significant portion of the
relevant consuming public … recognizes the mark as a source indicator.” Joseph
Phelps Vineyards Holdings, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1324-25
(Fec. Cir. 2017) (citing Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1374-75 (Fed. Cir. 2005)). In the context of a
likelihood of confusion analysis, the commercial strength of a mark is not a binary
factor. Rather, it “varies along a spectrum from very strong to very weak.” Joseph
Phelps Vineyards, 857 F.3d at 1325 (quoting Palm Bay Imps., 396 F.3d at 1374-75).
Under the fifth factor, commercial strength or fame may be measured not only
directly by consumer surveys or declarations but also indirectly by the volume of sales
and advertising expenditures in connection with the identified goods or services sold
under the mark, and supported by other indicia such as length of time of use of the
mark; widespread critical assessments; notice by independent sources of the goods or
services identified by the marks; the general reputation of the goods or services; and
social media presence. Weider Publ’ns, LLC v. D & D Beauty Care Co., No. 91199352,
2014 WL 343269, at *6 (TTAB 2014); see also Bose Corp. v. QSC Audio Prods. Inc.,
293 F.3d 1367, 1371 (Fed. Cir. 2002) (recognizing indirect evidence as appropriate
proof of strength). Depending on the industry, some context in which to place raw

Cancellation No. 92085824
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statistics may be necessary (e.g., the substantiality of the sales or advertising figures
for comparable types of products or services). Bose, 293 F.3d at 1375. Successful
trademark enforcement efforts may also be pertinent to the strength of a mark. Burns
Philp Food, Inc. v. Modern Prods. Inc., No. 73663828, 1992 WL 259302, at *1 n.2
(TTAB 1992) (policing efforts go to the strength of the mark). “But, the mere fact that
lawsuits were filed is not reasonably probative of the fame inquiry, which is focused
on whether the mark has achieved ‘extensive public recognition and renown,’ not on
enforcement efforts. Omaha Steaks Int’l, Inc. v Greater Omaha Packing Co., 908 F.3d
1315, 1323 (Fed. Cir. 2018) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668
F.3d 1356, 1367 (Fed. Cir. 2012)).
Petitioner’s Chief Operations Officer testifies that Petitioner “began marketing
and selling fishing lures under the trademark Bass Assassin on April 6, 1988. Since
that date, Bass Assassin has continuously marketed and sold fishing lures under the
Bass Assassin and various other Assassin trademarks”;13 that it “began marketing
and selling fishing lures using the mark Assassin alone, as well as a series of marks
that incorporate the word Assassin …”;14 that it has “sold over 29 million bags of
fishing lures in connection with the Assassin Family of Marks … including marketing
and sales of [fishing lures that] reach all fifty (50) United States”;15 that in 2014 it
invested “over a quarter of a million dollars in advertising expenses to promote the
13 Rutherford declaration, 16 TTABVUE 4, ¶2; 22 TTABVUE 34.
14 Id. at 5, ¶3. Petitioner’s witness, however, does not indicate when use of the mark
ASSASSIN alone for fishing lures began.
15 Rutherford declaration, 16 TTABVUE 6, ¶9; 22 TTABVUE 34.

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Assassin Goods featuring the Assassin Family of Marks throughout the United
States”;16 and that there have been “numerous third-party media regarding the
Assassin Goods.”17 Respondent asserts that Petitioner’s evidence is “mere
advertising” and not trademark usage and thus, “is of no import.”18
Petitioner did not break down advertising and sales per each pleaded mark, and
its evidence of advertising and promotion expenditures and efforts, is provided
without context, such as market share, sales or advertising figures for comparable
types of goods, or consumer exposure to enable us to determine the extent to which
Petitioner’s efforts and expenses may indicate the well-known nature of its ’843 mark
and to determine whether consumers recognize the ’843 mark. See Omaha Steaks
Int’l, 908 F.3d at 1320 (quoting Bose, 293 F.3d at 1375 (“raw numbers alone in today’s
world may be misleading.”)). As explained in Omaha Steaks, “a 30-second spot
commercial shown during a Super Bowl football game may cost a vast sum, but the
expenditure may have little if any impact on how the public reacts to the commercial
message.” Id. In short, we cannot accurately gauge Petitioner’s level of success
without evidence regarding its market share, how its goods rank in terms of sales in
the trade, or how much consumer exposure there has been to its advertising and
promotional efforts. See id.; In re GJ & AM, LLC, No. 86858003, 2021 WL 2374670,
at *21 (TTAB 2021) (“Our precedents have long alerted practitioners to the fact that
16 22 TTABVUE 35.
17 Id.; Rutherford declaration, 16 TTABVUE 5, ¶4; id. at 7-8, ¶¶11-14.
18 26 TTABVUE 6-7.

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the absence of evidence of competitive contextual information may limit the probative
value that we might otherwise accord advertising and sales numbers in the acquired
distinctiveness inquiry.”).
Petitioner’s Chief Operations Officer testifies that Petitioner:
regularly enforces its Assassin Family of Marks against infringement by third
parties. Bass Assassin has sent over 100 cease-and-desist letters since 1988.
Infringers of the Assassin Family of Marks often rebrand or rename their
products. In some instances, Bass Assassin enters into co-existence
agreements to prevent consumer confusion.19
Also, as noted, Respondent identified two third-party registrations which incorporate
the term ASSASSIN.20 Petitioner’s Chief Operations Officer testifies that Petitioner
has sent a cease and desist letter to the owner of SILENT ASSASSIN who responded
that it “has not authorized any entity to sell fishing lures using the Silent Assassin
trademark within the United States” and that Petitioner is “currently negotiating an
agreement with [this third party] to abandon the Silent Assassin trademark”;21 and
that it sent a cease and desist letter to the owner of ASSASSIN WALLEYE SERIES
and that owner “no longer uses the term ASSASSIN WALLEYE SERIES in
connection with fishing rods.”22 Petitioner’s Chief Operations Officer also testifies
that Petitioner has instituted a cancellation proceeding before the Board against the
third-party owner of a registration for the mark ASSASSIN FC for fishing lures.23
19 Rutherford declaration, 16 TTABVUE 11, ¶24; see 22 TTABVUE 19.
20 17 TTABVUE 15.
21 Rutherford declaration, 16 TTABVUE 11, ¶25
22 Id. at 12, ¶26; see 22 TTABVUE 36.
23 Id. at ¶27.

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Petitioner, however, has not provided enough information about its enforcement
efforts and settlements such that we could conclude that those efforts are “probative
of the [fame] of the mark as opposed to the referenced third parties’ desire to avoid
litigation.” See In re Dimarzio, Inc., No. 87213400, 2021 WL 5822579, at *5 n.24
(TTAB 2021) (citing In re Wella Corp., 565 F.2d 143, 144 n.2 (CCPA 1977)); In re
Hikari Sales USA, Inc., No. 86439012, 2019 WL 1453259, at *7 (TTAB 2019)
(applicant’s evidence “only shows” that “competitors ceased use of that term, but does
not shed light on its competitors’ motivation for stopping their respective uses.”).
While there is evidence of sales of over 29 million bags fishing lures which is
notable, we find that, taken together, the evidence discussed above does not suggest
a level of commercial success and brand recognition that would indicate Petitioner’s
’843 mark should be accorded more legal protection under the fifth DuPont factor.
c) Summary
Based on the evidence as a whole, we cannot say the ’843 mark is commercially
strong. We find that the fifth DuPont factor regarding fame and commercial success
of Petitioner’s ASSASSIN marks in connection with fishing lures is neutral. The sixth
factor, conceptual weakness, is also neutral. We find that Petitioner’s ’843 mark is
entitled to the normal scope of protection accorded registered marks. See Bell’s
Brewery, Inc. v. Innovation Brewing, No. 91215896, 2017 WL 6525233, at *9 (TTAB
2017).
3. The Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of the
marks in their entireties, considering their appearance, sound, connotation and

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commercial impression. DuPont, 476 F.2d at 1361. As noted, given that some of the
relevant goods, as identified, are legally identical, “the degree of similarity between
the marks necessary to support a finding of likelihood of confusion declines.” Century
21 Real Estate v. Century Life, 970 F.2d 874, 877 (Fed. Cir. 1992); see also Bridgestone
Am. Tire Operations, LLC v. Federal Corp., 673 F.3d 1330, 1337 (Fed. Cir. 2012).
The issue is not whether the marks can be distinguished when subjected to a side-
by-side comparison, but rather whether the marks are sufficiently similar in terms of
their overall commercial impression that confusion as to the source of the services
offered under the respective marks is likely to result. Coach Servs., 668 F.3d at 1368.
The focus is on the recollection of the average consumer, who normally retains a
general rather than a specific impression of trademarks. Sage Therapeutics, Inc. v.
Sageforth Psych. Servs., LLC, No. 91270181, 2024 WL 1638376, at *5 (TTAB 2024)
(quoting In re i.am.symbolic, llc, No. 85916778, 2018 WL 3993582, at *4 (TTAB
2018)).
“No element of a mark is ignored simply because it is less dominant, or would not
have trademark significance if used alone.” In re Electrolyte Labs. Inc., 929 F.2d 645,
647 (Fed. Cir. 1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d
1293, 1295 (CCPA 1974)). On the other hand, “there is nothing improper in stating
that, for rational reasons, more or less weight has been given to a particular feature
of a mark, provided the ultimate conclusion rests on consideration of the marks in
their entireties. Indeed, this type of analysis appears to be unavoidable.” In re Nat’l
Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985).

Cancellation No. 92085824
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For ease of reference, Respondent’s mark is FLASHIN’ ASSASSIN and
Petitioner’s ’843 mark is ASSASSIN, both in standard characters.
We find that Respondent’s mark and Petitioner’s ’843 mark are similar in
appearance, sound, connotation and commercial impression. In comparing the
parties’ marks, Respondent’s mark incorporates the entirety of the ’843 mark. While
there is no explicit rule that we must find marks similar where one party’s mark
incorporates the entirety of the other party’s mark, the fact that it does typically
increases the similarity between the two. See, e.g., China Healthways Inst. Inc. v.
Xiaoming Wang, 491 F.3d 1337, 1341 (Fed. Cir. 2007) (applicant’s mark CHI PLUS
is similar to opposer’s mark CHI both for electric massagers); Double Coin Holdings,
2019 WL 4877349, at *8 (quoting Hunter Indus., Inc. v. Toro Corp., No. 91203612,
2014 WL 1649332, at *11 (TTAB 2014) (“[L]ikelihood of confusion has often been
found where the entirety of one mark is incorporated within another.”).
There is nothing in the record to indicate what ASSASSIN in Petitioner’s mark
stands for, or that consumers would routinely understand ASSASSIN to have a
particular connotation. ASSASSIN in Petitioner’s mark appears to be arbitrary. As
asserted by Respondent,24 the presence of FLASHIN’ contributes to the connotation
of Respondent’s mark as a whole and certainly lends something to Respondent’s mark
that is not present in Petitioner’s mark. Also, the presence of FLASHIN’ may reduce
the visual similarities of the marks in a side-by-side comparison or help to
differentiate the parties’ marks in sound when fully articulated.
24 26 TTABVUE 8.

Cancellation No. 92085824
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However, the addition of FLASHIN’ in Respondent’s mark to ASSASSIN will not
necessarily preclude likelihood of confusion. See Charger Ventures, 64 F.4th at 1382
(citing Detroit Athletic, 903 F.3d at 1304-05). If a portion of both marks is the same,
then the marks may be confusingly similar notwithstanding some differences. See,
e.g., Charger Ventures, 64 F.4th at 1382 (“an additional word or component may
technically differentiate a mark but do little to alleviate confusion”); Hewlett-Packard
Co. v. Packard Press, Inc., 281 F.3d 1261, 1266 (Fed. Cir. 2002) (similar commercial
impression even though applicant’s mark PACKARD TECHNOLOGIES, with
“TECHNOLOGIES” disclaimed, does not incorporate every feature of opposer’s
HEWLETT PACKARD marks); Double Coin Holdings, 2019 WL 4877349, at *8
(“likelihood of confusion often has been found where the entirety of one mark is
incorporated within another.”) (quoting Hunter Indus., Inc. v. Toro Co., No. 91203612,
2014 WL 1649332, at *11 (TTAB 2014)).
Respondent argues that its use of FLASHIN’ “indicates that the lures flash in
cases where the sun can hit them when in use.”25 Respondent’s witness explains that
the material used with Respondent’s fishing lures “has three names, it’s mylar, tinsel,
flash” and that FLASHIN’ ASSASSIN was so named because of the flash from the
material used.26 Moreover, the term “flash” and its variants “flashed; flashing;
flashes” are defined as “to cause (light) to reflect.”27
25 Id.
26 Thornton deposition, 18 TTABVUE 31.
27 We take judicial notice of the definition for “flash” and its variants “flashed; flashing;
flashes.” Merriam-Webster Dictionary, WWW.MERRIAM-WEBSTER.COM/DICTIONARY/FLASH
(accessed July 1, 2026). see In re Nextgen Mgmt., LLC, No. 88098031, 2023 WL 111145, at *4

Cancellation No. 92085824
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In rare cases, those marks with a rhyming or other sound pattern can encourage
people encountering the mark to perceive the mark as a whole. See, e.g., In re Kraft,
Inc., 1983 WL 51972, at *2 (TTAB 1983) (finding LIGHT N’ LIVELY to be a unitary
term not subject to disclaimer because the mark “as a whole has a suggestive
significance which is distinctly different from the merely descriptive significance of
the term ‘LIGHT’ per se,” which is “lost in the mark as a whole”). It is well-
established, however, that a rhyming pattern in and of itself does not render a mark
unitary. FLASHIN’, although somewhat rhyming with ASSASSIN,28 is a descriptive
or at least highly suggestive term as indicated in the noted dictionary definition and
Respondent’s witness testimony. FLASHIN’ is less significant in creating the
connotation and commercial impression of Respondent’s mark and has little, if any,
source-identifying significance. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d
943, 947 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the
‘descriptive component of a mark may be given little weight in reaching a conclusion
on the likelihood of confusion.”’) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 1060
(Fed. Cir. 1985)).
Despite any rhyming qualities FLASHIN’ ASSASSIN might have, it does not
impart a separate and distinct overall commercial impression. There is nothing of
n.5 (TTAB 2023) (“The Board may take judicial notice of dictionary definitions, including
online dictionaries which exist in printed format or have fixed regular editions.”).
28 Respondent’s witness suggests FLASHIN’ was chosen for its rhyming with ASSASSIN
testifying that “flash” was chosen in part, because “I couldn’t think of anything that rhymed
with tinsel or mylar … I thought about it for a while and then that name was what came to
me.” 18 TTABVUE 31.

Cancellation No. 92085824
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record that supports the conclusion that the rhyming quality imparts a new or
different meaning to ASSASSIN or that FLASHIN’ does not retain its descriptive
significance in relation to Respondent’s goods.
It is also likely that customers familiar with Respondent’s goods may mistakenly
associate Petitioner’s ASSASSIN mark with Respondent or assume that the goods
have a common source, viewing Petitioner’s ASSASSIN mark as an abbreviated form
of Respondent’s FLASHIN’ ASSASSIN mark. See In re Mighty Leaf Tea, 601 F.3d
1342, 1346 (Fed. Cir. 2010); Nina Ricci S.A.R.L. v. E.T.F. Enters. Inc., 889 F.2d 1070,
1073 (Fed. Cir. 1989); Marshall Field & Co. v. Mrs. Fields Cookies, No. 16572, 1992
WL 421449, at *14 (TTAB 1992) (“companies are frequently called by shortened
names, such as Penney’s for J.C. Penney’s … and Bloomies for Bloomingdale’s”); Big
M. Inc. v. U.S. Shoe Corp., No. 349619, 1985 WL 71976, at *3 (TTAB 1985) (“[W]e
cannot ignore the propensity of consumers to often shorten trademarks and, in the
present case, this would be accomplished by dropping the ‘T.H.’ [in T.H. MANDY] in
referring to registrant’s stores”). Or, those consumers familiar with the Petitioner’s
ASSASSIN mark may perceive Respondent’s FLASHIN’ ASSASSIN mark as an
extension of Petitioner’s product offerings. See, e.g., Schieffelin & Co. v. Molson Cos.,
Ltd., No. 91069312, 1989 WL 277823, at *4 (TTAB 1989) (“Those consumers who do
recognize the differences in the marks may believe that applicant's mark is a
variation of opposer’s mark that opposer has adopted for use on a different product.”).
Even those consumers who notice and remember the differences in the marks, or who
are knowledgeable about the source of Respondent’s or Petitioner’s goods, are likely

Cancellation No. 92085824
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to believe, in view of the identical similarity of ASSASSIN, that the relevant goods
are somehow related.
In addition, consumers may shorten Respondent’s mark to ASSASSIN alone given
the propensity of consumers to shorten marks when speaking. See, e.g., Sabhnani, v.
Mirage Brands, LLC, No. 92068086, 2021 WL 6072822, at *18 (TTAB 2021) (the
“similarity in sound will be greater if consumers engage in ‘the penchant of consumers
to shorten marks”) (quoting In re Bay State Brewing Co., No. 85826258, 2016 WL
1045677, at *3 (TTAB 2016)).
Comparing the marks in their entireties, we find that there are similarities
between the marks in terms of appearance, sound, connotation and commercial
impression, particularly because the marks share ASSASSIN, which is the only
element of Petitioner’s ’843 mark and is a clearly recognizable and prominent element
in Respondent’s mark.29 See In re SL&E Training Stable, Inc., No. 78806669, 2008
WL 4107225, at *4 (TTAB 2008). “Similarity in any one of these elements [as to
appearance, sound, connotation, and commercial impression] may be sufficient to find
the marks confusingly similar.” In re Inn at St. John’s, LLC, No. 87075988, 2018 WL
2734893, at *13 (TTAB 2018) (internal citation omitted), aff’d mem., 777 F. App’x 516
(Fed. Cir. 2019). Overall, the first DuPont factor weighs in favor of finding a likelihood
of confusion. See Double Coin Holdings, 2019 WL 4877349, at *9.
29 Although we have pointed to the identical dominant portions of the marks, we acknowledge
the fundamental rule that the marks must be considered in their entireties. See Jack
Wolfskin, 797 F.3d at 1371; Massey Junior Coll., Inc. v. Fashion Inst. of Tech., 492 F.2d 1399,
1402 (CCPA 1974).

Cancellation No. 92085824
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4. Purchasing Care
The fourth DuPont factor relates to “conditions under which and buyers to whom
sales are made, i.e., ‘impulse’ vs careful, sophisticated purchasing.” DuPont, 476 F.2d
at 1361. Consumer sophistication, or a heightened degree of care when making a
purchasing decision, may tend to minimize likelihood of confusion. See, e.g., In re
N.A.D., Inc., 754 F.2d 996, 999-1000 (Fed. Cir. 1985) (because only sophisticated
purchasers exercising great care would purchase the relevant goods, there would be
no likelihood of confusion merely because of the similarity between the marks
NARCO and NARKOMED). Conversely, impulse purchases of inexpensive items are
likely to be made with a lesser degree of care, increasing the likelihood of consumer
confusion. Palm Bay Imps., 396 F.3d at 1376 (“Purchaser sophistication may tend to
minimize likelihood of confusion. Conversely, impulse purchases of inexpensive items
may tend to have the opposite effect.”).
Petitioner asserts that “the purchasers are consumers interested in fishing who
purchase low-cost fishing lures that are sold side-by-side in the same types – and
sometimes the same – retail stores”;30 and its witness testifies that the “average retail
price of [Petitioner’s] goods is under 10 US dollars, often between 3 to 6 US dollars.”31
Respondent does not address this factor in its brief but answers Petitioner’s
interrogatories that Respondent’s intended customer is the “fishing community
30 22 TTABVUE 31.
31 Rutherford declaration, 16 TTABVUE 9, ¶19.

Cancellation No. 92085824
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generally, without regard to age, gender or socioeconomic status”;32 and that the
expected retail price for its goods is “anywhere from $2.50 to $5.99.”33
The parties’ relevant goods involve fishing lures which, as asserted by both
parties, could include customers that are ordinary members of the public interested
in fishing. See S.W. Mgmt., Inc. v. Ocinomled, Ltd., No. 94002242, 2015 WL 4464550,
at *17 (TTAB 2015) (where the goods in an application or registration are broadly
described, they are deemed to encompass all the goods of the nature and type
described therein); see also In re Information Builders Inc., No. 87753964, 2020 WL
2094122, *5 (TTAB 2020) (“[Pu]rchaser sophistication does not always result in a
finding that confusion is unlikely, especially where legally identical in part goods and
services are involved and … the marks are similar.”). Further, “[w]hen products are
relatively low-priced and subject to impulse purchase, the risk of likelihood of
confusion is increased because purchasers of such products are held to a lesser
standard of purchaser care.” In re FabFitFun, Inc., No. 86847381, 2018 WL 4043156,
at *3 (TTAB 2018) (quoting Recot, Inc.v. M.C. Becton, 214 F.3d 1322, 1329 (Fed. Cir.
2000) (finding that lower-priced cosmetics may be purchased without a high degree
of care). The identified goods are unrestricted as to quality or price, and we must
consider the perspective of the least sophisticated potential purchaser. See Stone Lion
Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014) (“Board
32 17 TTABVUE 11.
33 Id. at 10.

Cancellation No. 92085824
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precedent requires the decision to be based ‘on the least sophisticated potential
purchasers.”’).
We find the fourth DuPont factor to be neutral.
5. Actual Confusion
The seventh and eighth DuPont factors contemplate the “[t]he nature and extent
of any actual confusion,” and “length of time during and conditions under which there
has been concurrent use without evidence of actual confusion.” DuPont, 476 F.2d at
1361.
Respondent argues that Petitioner has not shown that actual confusion exists.34
Petitioner asserts that Respondent “admits that there is actual consumer confusion
stating that ‘[c]onfusion was mentioned by a person acting on the behalf of Ferris
Brothers Wholesale’”35 although Respondent’s witness could not recall the name of
the person.36 Petitioner also asserts:
Although not a pure instance of confusion, a representative of Texas
Saltwater Fishing Magazine, a third-party publication covering the Assassin
Goods, declined Respondent’s request to publish an article about
Respondent’s Goods, explaining that the magazine did not want to “become[]
part of a potentially confusing situation” as the representative recognized the
potential that the FLASHIN’ ASSASSIN Mark could be perceived by the
public as affiliated with the Assassin Family of Marks.37
The instance with the magazine is not evidence of actual confusion but rather,
more akin to an inquiry about a relationship with the parties. See, e.g.,
34 26 TTABVUE 3.
35 22 TTABVUE 38.
36 Id. at 32; see Interrogatory No. 17, 17 TTABVUE 14-15; Thornton deposition, 18 TTABVUE
46-49.
37 22 TTABVUE 32; see Thornton deposition, 18 TTABVUE 45, 101-02.

Cancellation No. 92085824
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Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, No. 92051006, 2014 WL
1390528, at *23 (TTAB 2014) (inquiry is not evidence of confusion because the inquiry
indicates that the prospective customer had a reason to suspect that there were two
different companies); Marshall Field & Co. v. Mrs. Field’s Cookies, No. 73530088,
1992 WL 4211449, at *16 (TTAB 1992) (inquiries indicate that the declarants were
aware that there may be two different entities); Elec. Water Conditioners, Inc. v.
Turbomag Corp., 1984 WL 63085, at *4 (TTAB 1984) (“That questions have been
raised as the relationship between firms is not evidence of actual confusion of their
trademarks.”).
As to the vague Ferris Brothers Wholesale instance referenced by Respondent,
this single instance is insufficient to establish a consistent cause of confusion but is
nonetheless, illustrative of why confusion is likely. See Molenaar, Inc. v. Happy Toys
Inc., 1975 WL 20853, at *2 (TTAB 1975) (“While a single instance is insufficient as
evidence from which to conclude that applicant’s mark has consistently caused
confusion, the single instance of confusion is at least ‘illustrative of a situation
showing how and why confusion is likely.”’) (quoting Libbey-Owens-Ford Glass Co. v.
Thermoproof Glass Co., 390 F.2d 770, 892 (CCPA 1968)). “[I]n any event, [evidence of
actual confusion] is not required in order to establish likelihood of confusion.” Time
Warner Entm’t Co. v. Jones, No. 75352605, 2002 WL 1628168, at *10 (TTAB 2002).
The seventh and eighth DuPont factors are neutral.

Cancellation No. 92085824
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IV. Conclusion
The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there has been evidence and argument; and to “explain the results of that
weighing;” and “the weight [we] assigned to the relevant factors.” Charger Ventures,
64 F.4th at 1384. “No mechanical rule determines likelihood of confusion, and each
case requires weighing of the facts and circumstances of the particular mark.” In re
Mighty Leaf Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010).
The legal identity of the parties’ goods weighs heavily in favor of finding a
likelihood of confusion. We also determined that the parties’ goods may be rendered
to the same or similar class of consumers. Thus, the second and third DuPont factors
weigh in favor of finding likelihood of confusion.
As to the comparison of the marks under the first DuPont factor, we found that
there are similarities between the marks in terms of appearance, sound, connotation
and commercial impression, particularly because the marks share ASSASSIN. This
factor weighs in favor of a likelihood of confusion.
We found that the fourth factor regarding consumer sophistication and
purchasing care, the fifth DuPont factor regarding fame and commercial success of
Petitioner’s marks, the sixth factor regarding conceptual weakness, and the seventh
and eighth factors regarding instances of actual confusion are all neutral.
There are no factors that weigh against likelihood of confusion.
Balancing the factors, we find that Petitioner has shown, by a preponderance of
the evidence, that confusion is likely when Petitioner’s and Respondent’s marks are
used with their relevant goods.

92085824

Decision: The petition to cancel is granted.

-28-