98745742•Paragon Implant LLC
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Mailed: April 8, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ———— In re Paragon Implant LLC ———— Serial No. 98745742 ———— Patrick F. Bright of Wagner Anderson & Bright PC, for Paragon Implant LLC. Rebekah Richardson, Trademark Examining Attorney, Law Office 134, Sophia Kim, Managing Attorney. ———— Before Wellington, Pologeorgis, and Bradley, Administrative Trademark Judges. Opinion by Pologeorgis, Administrative Trademark Judge: Paragon Implant LLC (“Applicant”) seeks registration on the Principal Register of the standard character mark TRIACTIVE for “Dental implants; Implant abutments for dental purposes” in International Class 10.1 The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of 1 Application Serial No. 98745742, filed on September 11, 2024, based on an allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). THIS OPINION IS NOT A PRECEDENT OF THE TTAB
Serial No. 98745742 2 likelihood of confusion with the following two registered marks (both owned by the same Registrant): • Reg. No. 7594066 – ;2 and • Reg. No. 7594067 – TRIACTIV (standard characters);3 Both cited registrations identify the identical goods in International Class 10, namely: Needles for medical, surgical and veterinary purposes; surgical instruments, namely, needle holders; syringes for medical use; catheters, butterfly valves being specifically adapted for use with medical cannulae; cannulae; parts and accessories for all the aforementioned goods, namely, replacement parts and containers specifically adapted for the disposal of medical instruments, syringes, and contaminated medical waste. When the refusal was made final, Applicant appealed and requested reconsideration two times.4 When the requests for reconsideration were denied, the appeal resumed. The appeal is fully briefed. For the reasons explained below, we affirm the Section 2(d) refusal to register.5 2 Registered December 10, 2024. The registration includes the following description of the mark: “The mark consists of the wording ‘TRIACTIV’ to the right of a circular design element encompassing a stylized syringe design element.” Additionally, color is not claimed as a feature of the mark. 3 Registered December 10, 2024. 4 Applicant filed a request for reconsideration on September 11, 2025 and October 1, 2025. Both of these submissions consist of virtually the identical declaration of Dr. Gerald A. Niznick, Applicant’s president and CEO, with only a minor modification in the second submission that does not alter the testimony provided. 5 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to
Serial No. 98745742 3 I. Preliminary Matter – Examining Attorney’s Evidentiary Objection We initially turn to an evidentiary objection lodged by the Examining Attorney. Specifically, the Examining Attorney objects to Exhibit A to Applicant’s appeal brief because this evidence was submitted for the first time as an exhibit to the brief.6 It is well-settled that the record in an ex parte proceeding should be complete prior to appeal. Trademark Rule 2.142(d); 37 C.F.R. § 2.142(d). Exhibits that are attached to a brief but not made of record during examination are untimely, and will not be considered. See In re Fitch IBCA, Inc., No. 75628232, 2002 WL 745593, at *1 n.2 (TTAB 2002); see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) §§ 1203.02(e) and 1207.01 (2025). To the extent Applicant wished to introduce additional evidence after its appeal had been filed, Applicant should have filed a separately captioned written request with the Board to suspend the appeal and remand the application for further examination pursuant to Trademark Rule 2.142(d). Applicant did not do so. Accordingly, the Examining Attorney’s evidentiary objection is sustained, and we give no consideration to Exhibit A attached to Applicant’s appeal brief. II. Likelihood of Confusion Section 2(d) of 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 the docket and electronic file database for the involved application. All citations to the TSDR database are to the downloadable .PDF version of the documents. 6 Exhibit A is comprised of screenshots from Registrant’s website, www.numedico.com. submitted purportedly to demonstrate that Registrant’s goods are offered to medical professionals, and not to dental professionals. See Applicant’s Appeal Brief, Ex. A, 6 TTABVUE 9-21.
Serial No. 98745742 4 goods of the applicant, to cause confusion, mistake, or deception. 15 U.S.C. § 1052(d). See also In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023). Our determination under Section 2(d) is based on an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015); see also In re Majestic Distilling Co., 315 F.3d 1311, 1314-15 (Fed. Cir. 2003). In any likelihood of confusion analysis, different DuPont factors may play a dominant role and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem, 92 F.4th 1113, 1116 (Fed. Cir. 2024) (quoting Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be assigned to each factor depending on the evidence presented, and “any one of the factors may control a particular case.” Id.; see also Charger Ventures, 64 F.4th at 1381. While we consider each DuPont factor for which there is evidence and argument, In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019), two key considerations are the similarities between the marks and the similarities between the goods. In re i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)). We focus our analysis on the cited standard character mark TRIACTIV, because if Applicant’s standard character TRIACTIVE mark is likely to cause confusion with this cited mark for the respective identified goods, there is no need for us to consider whether there is a likelihood of confusion with the cited registered composite mark,
Serial No. 98745742 5 which has additional points of difference; conversely, if there is no likelihood of confusion between Applicant’s mark and the cited registered standard character TRIACTIV mark, then there would be no likelihood of confusion with the cited registered composite mark. See Sock It To Me, Inc. v. Fan, No. 91230554, 2020 WL 3027605, at *9 (TTAB 2020) (confining Section 2(d) analysis to most similar pleaded mark); In re Max Cap. Grp. Ltd., No. 77186166, 2010 WL 22358, at *2 (TTAB 2010) (confining Section 2(d) analysis to cited typed drawing). A. Similarity 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.” Palm Bay Imps. v. Veuve Cliquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005) (quoting 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, No. 87075988, 2018 WL 2734893, at *5 (TTAB 2018) (quoting In re Davia, No. 85497617, 2014 WL 2531200, at *2 (TTAB 2014)). The proper test for similarity “is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012) (internal quotation marks and citation omitted)). The focus is on the recollection of the average customer, who retains a general rather than specific impression of trademark marks. In re St. Julian Wine Co., No. 87834973, 2020 WL
Serial No. 98745742 6 2788005, at *6 (TTAB 2020). Consumers may not necessarily encounter the marks in close proximity and must rely upon their recollections thereof over time. In re Mucky Duck Mustard, No. 73603019, 1988 WL 252484, at *1 (TTAB 1988). Here, Applicant’s mark is TRIACTIVE in standard characters. The cited mark is TRIACTIV, also in standard characters. The marks are very similar in appearance, sound, connotation, and overall commercial impression because the entirety of the cited mark is encompassed by Applicant’s mark; in such cases, confusing similarity has often been found. See e.g., See In re Mighty Leaf Tea, 601 F.3d 1342, 1347-48 (Fed. Cir. 2010) (ML similar to ML MARK LEES); Coca-Cola Bottling Co. v. Jos. E. Seagram & Sons, Inc., 526 F.2d 556, 557 (CCPA 1975) (BENGAL and BENGAL LANCER and design found to be similar); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 324-25 (CCPA 1967) (THE LILLY similar to LILLI ANN); In re U.S. Shoe Corp., No. 73446404, 1985 WL 72046, at *3 (TTAB 1985) (CAREER IMAGE similar to CREST CAREER IMAGES). Applicant argues that the marks are spelled differently and may be pronounced differently by targeted customers.7 We are not persuaded by Applicant’s arguments. Even if consumers were to pronounce the marks differently, slight differences in the sound of similar marks will not avoid a likelihood of confusion. See In re Viterra Inc., 671 F.3d 1358, 1367 (Fed. Cir. 2012); In re Energy Telecomms. & Elec. Ass’n, No. unknown, 1983 WL 51826, at *1 (TTAB 1983). There is no correct pronunciation of a mark; thus, consumers may pronounce a mark differently than intended by the mark 7 Applicant’s Appeal Brief, pp. 5-6, 6 TTABVUE 6-7.
Serial No. 98745742 7 owner. Viterra, 671 F.3d at 1367 (citing Interlego AG v. Abrams/Gentile Entm’t, Inc., No. 91103612, 2002 WL 31039614, at *2 (TTAB 2002)); TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 1207.01(b)(iv) (Nov. 2025). In the present case, the compared marks could clearly be pronounced the same because they are virtually identical in appearance, except for the additional letter “e” at the end of Applicant’s mark. As noted above, such similarity in sound alone may be sufficient to support a finding that the compared marks are confusingly similar. In re 1st USA Realty Prof’ls, Inc., No. 78553715, 2007 WL 2315610, at *5 (TTAB 2007) (citing Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (C.C.P.A. 1968)); TMEP § 1207.01(b)(iv). Lastly, Applicant’s mark and the cited mark are both in standard-character format, so we must consider that Applicant and Registrant could display their marks in a font style, size or color identical or similar to the other, thereby heightening the likelihood of confusion. In re Aquitaine Wine USA, LLC, No. 86928469, 2018 WL 1620989, at *5 (TTAB 2018); In re Strategic Partners Inc., No. 77903451, 2012 WL 1267930, at *3 (TTAB 2012). Quite simply, while we acknowledge the minor difference between the marks in terms of appearance when viewed on a side-by-side basis, that is not the test. When considered in their entireties, and against the backdrop of fallibility of memory, Applicant’s mark TRIACTIVE mark and the cited registered TRIACTIV mark are highly similar in appearance, sound and connotation, and convey a similar overall commercial impression, notwithstanding the additional letter “e” at the end of Applicant’s mark.
Serial No. 98745742 8 Accordingly, we find that the first DuPont factor strongly favors a finding of likelihood of confusion. B. Similarity of the Goods We next turn to the comparison of the goods, the second DuPont factor. In making our determination regarding the similarity of the goods, we must look to the goods as identified in Applicant’s application and in the cited registration. See Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990) (“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.”). It is settled that it is not necessary that the respective goods be identical or even competitive in order to find that they are related for purposes of our likelihood of confusion analysis. The respective goods need only be “related in some manner and/or if the circumstances surrounding their marketing [be] such that they could give rise to the mistaken belief that goods emanate from the same source.” Coach Servs., 668 F.3d at 1369 (quoting 7-Eleven Inc. v. Wechsler, No. 91117739, 2007 WL 1431084, at *10 (TTAB 2007)). Further, where virtually identical marks are involved, as we have here, the degree of similarity between the goods that is required to support a finding of likelihood of confusion declines. In re i.am.symbolic, llc, No. 85044494, 2015 WL
Serial No. 98745742 9 6746543, at *6 (TTAB 2015) aff’d, 866 F.3d 1315 (Fed. Cir. 2017) (citing In re Shell Oil Co., 992 F.2d 1204, 1207 (Fed. Cir. 1993)). The issue is not whether consumers would confuse Applicant’s goods with Registrant’s goods, but rather whether there is a likelihood of confusion as to the source of these goods. L’Oreal S.A. v. Marcon, No. 91184456, 2012 WL 1267956, at *6 (TTAB 2012); In re Rexel Inc., No. 73241423, 1984 WL 63591, at *1 (TTAB 1984). Moreover, registration must be refused if Applicant’s mark for any of its identified goods is likely to cause confusion with Registrant’s mark for any of its listed goods. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir. 1983) (holding that a single good from among several may sustain a finding of likelihood of confusion); Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336-37 (CCPA 1981) (likelihood of confusion must be found if there is likely to be confusion with respect to any item that comes within the identification of goods or services in the application). To reiterate, Applicant’s goods are “Dental implants; Implant abutments for dental purposes.” The cited registration for the standard character TRIACTIV mark lists the following goods: Needles for medical, surgical and veterinary purposes; surgical instruments, namely, needle holders; syringes for medical use; catheters, butterfly valves being specifically adapted for use with medical cannulae; cannulae; parts and accessories for all the aforementioned goods, namely, replacement parts and containers specifically adapted for the disposal of medical instruments, syringes, and contaminated medical waste. To demonstrate that the goods are related, the Examining Attorney submitted screenshots from various dental and medical supply company websites showing that
Serial No. 98745742 10 these companies sell both “dental implants” and either “syringes” or “catheters,” but not necessarily under the same mark. The websites are identified below:8 • Screenshots from the website wwww.dentsplysirona.com – offering for sale both “dental implants” and “syringes.” • Screenshots from the website www.henryschein.com - offering for sale both “dental implants” and “syringes.” • Screenshots from the website www.net32.com – offering for sale both “dental implants” and “syringes.” • Screenshots from the website www.shop.benco.com – offering for sale both “dental implants” and “catheters.” • Screenshots from the website www.shopwhitecap.com – offering for sale both “dental implants” and “catheters.” • Screenshots of the website www.supplyclinic.com – offering for sale both “dental implants” and “catheters.” • Screenshots of the website www.pattersondental.com – offering for sale both “dental implants” and “catheters.” • Screenshots of the website www.frontierdental.com – offering for sale both “dental implants” and “catheters.” While these websites do not demonstrate that the parties’ respective goods are sold under the same mark, they nonetheless demonstrate that relevant consumers 8 March 14, 2025 Non-Final Office Action, TSDR pp. 11-50; July 2, 2025 Final Office Action, TSDR pp. 8-51.
Serial No. 98745742 11 have become accustomed to seeing both “dental implants” and either “syringes” or “catheters” sold by the same entity. This evidence is relevant to our relatedness analysis. See Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002) (evidence that “a single company sells the goods . . . of both parties, if presented, is relevant to a relatedness analysis”); Recot Inc. v. M.C. Becton, 214 F.3d 1322, 1328 (Fed. Cir. 2000) (in considering whether pet and human food are related, the Board erred in not considering evidence that “several large [third-party] companies produce and sell both pet and human food”). Moreover, it is common knowledge that dental professionals employ needles and syringes, as well as intravenous catheters, to administer local anesthetics for various dental procedures, including the fitting and placement of “dental implants.” Thus, relevant consumers of the parties’ respective goods may perceive them as complementary in nature. See 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). At any rate, the question is not whether purchasers can differentiate the goods themselves, but rather whether purchasers are likely to confuse the source of the goods. Alfacell Corp. v. Anticancer Inc., No. 92032202, 2004 WL 1631116, at *4 (TTAB 2004). We find that the evidence of record amply demonstrates that Applicant’s goods and Registrant’s goods are related for likelihood of confusion purposes. Thus, the second DuPont factor favors a finding of likelihood of confusion.
Serial No. 98745742 12 C. Similarity of Trade Channels and Classes of Purchasers We next consider established, likely-to-continue channels of trade, the third DuPont factor. Because there are no limitations as to channels of trade or classes of purchasers in either Applicant’s application or the cited registration and the identified goods are related, we must presume that the goods identified in Applicant’s applications and the cited registration travel through all normal and usual trade channels for such goods, and that they are sold to all classes of prospective purchasers for those goods. Stone Lion Cap., 746 F.3d at 1323; see also Coach Servs., 668 F.2d at 1370 (absent limitation “goods are presumed to travel in all normal channels ... for the relevant goods”). Applicant argues that there is no overlap between the channels of trade because Applicant offers only dental products whereas Registrant offers only medical products not used in the field of dentistry.9 Additionally, Applicant contends that, to the best of its knowledge, Registrant does not even sell any of its goods in the United States.10 Applicant’s arguments are unavailing. First, the identification of goods set forth in the cited registration is broadly-worded to encompass medical products used in dentistry and that could be offered to dental professionals. Again, we must consider the goods as identified in the application and cited registration, not on any extrinsic evidence of use. Stone Lion Cap., 746 F.3d at 1323 (“It was proper, however, for the 9 See June 6, 2025 Response to Office Action, TSDR p. 1; September 11, 2025 Request for Reconsideration, TSDR p. 1; October 1, 2025 Request for Reconsideration, TSDR PDF p. 1; Applicant’s Appeal Brief, pp. 3, 5, 6 TTABVUE 4, 6. 10 See September 11, 2025 Request for Reconsideration, TSDR p. 1; October 1, 2025 Request for Reconsideration, TSDR p. 2; Applicant’s Appeal Brief, TSDR p. 5, 6 TTABVUE 6.
Serial No. 98745742 13 Board to focus on the application and registrations rather than on real-world conditions, because “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.”) (citing Octocom Sys., 918 F.2d at 942). Second, Registrant’s registration does not specify any geographic limitations as to trade channels or classes of purchasers. Therefore, Registrant enjoys a presumption of exclusive right to nationwide use of the registered mark under Trademark Act Section 7(b), 15 U.S.C. § 1057(b), regardless of its actual extent of use. Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1568 (Fed. Cir. 1983).11 Notwithstanding the foregoing, the only probative evidence relating to the trade channels through which the goods at issue travel is the third-party website evidence submitted by the Examining Attorney discussed above. This evidence shows that Applicant’s goods and Registrant’s goods are the type of goods that may be provided in the same online marketplace to similar or overlapping purchasers. Therefore, the third DuPont factor also weighs in favor of finding a likelihood of confusion. D. Sophistication of the Consumers The fourth DuPont factor considers the “conditions under which and buyers to whom sales are made, i.e. ‘impulse’ v. careful, sophisticated purchasing.” DuPont, 476 F.2d at 1361. Applicant argues that the target customers for Applicant’s products are 11 To the extent Applicant is arguing that Registrant has not made any use of its mark in U.S. commerce, that would constitute an impermissible collateral attack on the cited registration. While appropriate for a petition for cancellation based on abandonment or nonuse, such an argument is not appropriate or permissible in this ex parte proceeding. In re Dixie Restaurants Inc., 105 F.3d 1405, 1408 (Fed. Cir. 1997).
Serial No. 98745742 14 dental professionals who are unlikely to confuse the compared marks because they are sophisticated purchasers.12 While we acknowledge that Applicant’s goods are directed to dental professionals, we nonetheless observe that, even if customers of Applicant’s goods are regarded as sophisticated and discriminating consumers who select Applicant’s products and buy them with care rather than on impulse, the fact that purchasers are sophisticated or knowledgeable in a particular field does not necessarily mean that they are sophisticated or knowledgeable in the field of trademarks or immune from source confusion. See, e.g., Shell Oil, 922 F.2d at 1208 (indicating that “even sophisticated purchasers can be confused by very similar marks”); Wincharger Corp. v. Rinco, Inc., 297 F.2d 261, 264 (CCPA 1962) (“It is true that in most instances technicians would use the products of either party and they are a discriminating group of people but that does not eliminate the likelihood of purchaser confusion here. Being skilled in their own art does not necessarily preclude their mistaking one trademark for another when the marks are as similar as those here in issue, and cover merchandise in the same general field.”); In re Decombe, No. 73592586, 1988 WL 252337, at *3 (TTAB 1988). This is especially true here where the marks at issue are highly similar, the goods are related and the trade channels overlap. “That the relevant class of buyers who may exercise care does not necessarily impose on that class the responsibility of 12 See September 11, 2025 Request for Reconsideration, TSDR p. 1; October 1, 2025 Request for Reconsideration, TSDR p. 1; Applicant’s Appeal Brief, pp. 2-3, 5-7, 6 TTABVUE 3-4, 6-7.
Serial No. 98745742 15 distinguishing between similar trademarks for similar goods. ‘Human memories even of discriminating purchasers . . . are not infallible.’” In re Rsch. & Trading Corp., 793 F.2d 1276, 1279 (Fed. Cir. 1986) (quoting Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 1406 (CCPA 1970)); In re Wilson, No. 75285881, 2001 WL 58395, at *3 (TTAB 2001) (where marks are very similar and goods related, confusion may be likely even among sophisticated purchasers). Based on the evidence of record, we find this factor slightly favors a finding that confusion is not likely. E. Actual Confusion The seventh DuPont factor considers the “nature and extent of any actual confusion.” DuPont, 476 F.2d at 1361. The eighth DuPont factor contemplates the “length of time during and conditions under which there has been concurrent use without evidence of actual confusion.” Id. Applicant argues that it has not experienced competition or been informed of any marketplace confusion with the cited marks.13 “[A] showing of actual confusion is not necessary to establish a likelihood of confusion.” Herbko Int’l, 308 F.3d at 1164. In the context of an ex parte appeal, where there has been no opportunity for evidence of actual confusion to be presented by Registrant, the probative value of evidence purporting to show the absence of actual confusion is limited. See Majestic Distilling, 315 F.3d at 1317 (“The lack of evidence 13 See September 11, 2025 Request for Reconsideration, TSDR p. 1 and October 1, 2025 Request for Reconsideration, TSDR F p. 2.
Serial No. 98745742 16 of actual confusion carries little weight, especially in an ex parte context.”) (internal citation omitted). Absence of any reported instances of confusion is meaningful only if the record indicates appreciable and continuous use by Applicant of its mark for a significant period of time in the same markets as those served by the Registrant under the cited mark. Citigroup, Inc. v. Cap. City Bank Grp., Inc., No. 91177415, 2010 WL 595586, at *17 (TTAB 2010), aff’d 637 F.3d 1344 (2011); Gillette Can. Inc. v. Ranir Corp., No. 91082769, 1992 WL 174453, at *6 (TTAB 1992). In other words, for the absence of actual confusion to be probative, there must have been a reasonable opportunity for confusion to have occurred. Barbara’s Bakery Inc. v. Landesman, No. 91157982, 2007 WL 196406, at *5 (TTAB 2007) (the probative value of the absence of actual confusion depends upon there being a significant opportunity for actual confusion to have occurred). Here, there is no evidence of record as to the amount and extent of Applicant’s sales and advertising of Applicant’s identified goods under its involved mark; or the scope and extent of Registrant’s use of its cited mark in connection with the goods listed in the cited registration. Thus, the seventh and eighth DuPont factors are neutral. III. Balancing the Factors We have considered all of the arguments and evidence of record and all relevant DuPont factors. We find that (1) the marks at issue are highly similar, (2) Applicant’s and Registrant’s goods are related, and (3) the parties’ respective goods travel, at a minimum, in overlapping trade channels and are offered to overlapping classes of
Serial No. 98745742 17 consumers. The seventh and eighth DuPont factor are neutral. While the fourth DuPont may slightly weigh against a finding of likelihood of confusion, it is outweighed by the highly similar marks at issue, the relatedness of the goods and the overlapping trade channels and classes of purchasers. See HRL Assocs. Inc. v. Weiss Assocs. Inc., No. 91075632, 1989 WL 274391, at *4 (TTAB 1989), aff’d, Weiss Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546 (Fed. Cir. 1990) (similarities of goods and marks outweigh sophisticated purchasers, careful purchasing decision, and expensive goods). As such, we conclude that Applicant’s standard character mark TRIACTIVE, as used in connection with the identified goods, so resembles the cited mark TRIACTIV (also in standard characters) for the listed goods in the cited registration as to be likely to cause confusion or mistake, or to deceive under Section 2(d) of the Trademark Act, notwithstanding any purchaser sophistication. Decision: The refusal to register Applicant’s TRIACTIVE mark under Section 2(d) of the Trademark Act is affirmed.
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