Candy Dynamics, Inc. v. Aurox Distributors LLC

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: May 7, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Candy Dynamics, Inc.
v.
Aurox Distributors LLC
_____
Opposition No. 91292159
_____
William A. Mckenna of Woodard, Emhardt, Henry, Reeves & Wagner, LLP,
for Candy Dynamics, Inc.
Rexford Brabson and Jorge M. Franco of T-Rex Law, P.C.,
for Aurox Distributors LLC.
_____
Before Lykos, Lebow, and Allard,
Administrative Trademark Judges.
Opinion by Allard, Administrative Trademark Judge:
Aurox Distributors LLC (“Applicant”) seeks registration on the Principal Register
of the composite word and design mark shown below (SOUR disclaimed) for “Candies;
Candy,” in International Class 30:1
1 Application Serial No. 98137395 was filed on August 17, 2023, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce. The mark is described as “consist[ing] of a stylized
face of a sour candy with watery eyes and a tongue sticking out with a spark at the end of

Opposition No. 91292159
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Candy Dynamics, Inc. (“Opposer”) opposes registration of Applicant’s mark under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the basis of priority and
likelihood of confusion with its registered marks listed below:
• for “Candy,” in International Class 30;2
the tongue with the text ‘SOUR CITY’ underneath the tongue.” Color is not claimed as a
feature of the mark.
2 1 TTABVUE 4 (para. 4). Reg. No. 7287357, issued on January 23, 2024. The mark is
described as “consist[ing] of a mushroom cloud shaped character having bloodshot eyes
licking a rolling liquid candy product.” Color is not claimed as a feature of the mark. 9
TTABVUE 46-48.
Opposer includes various hyperlinks in its Notice of Opposition. See, e.g., 1 TTABVUE 5
(paras. 8, 9). However, allegations made in Opposer’s Notice of Opposition are not evidence
on Opposer’s behalf. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018) (an
assertion of a fact in a brief “is not evidence under any of the relevant rules”); Baseball Am.,
Inc. v. Powerplay Sports, Ltd., No. 91120166, 2004 TTAB LEXIS 443, at *6 n.6 (TTAB 2004)
(“[T]he factual allegations made in the pleadings are not evidence of the matters alleged,
except insofar as they might be deemed to be admissions against interest.”). Moreover, even
assuming evidence could be made of record via a notice of opposition, providing only a
hyperlink to Internet materials is insufficient to make such materials of record. Trademark
Rule 2.122(e)(2), 37 C.F.R. § 2.122(e)(2) (“Internet materials may be admitted into evidence
under a notice of reliance in accordance with paragraph (g) of this section, in the same
manner as a printed publication in general circulation, so long as the date the internet
materials were accessed and their source (e.g., URL) are provided.”).
Citations to the record and briefs reference TTABVUE, the Board’s online docket system.
Before the TTABVUE designation is the docket entry number; after this designation are the
page references or paragraph numbers, as applicable.

Opposition No. 91292159
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• for “Candy,” in International Class 30;3 and
• for “candy,” in International Class 30.4
Opposer also claims prior common law rights in the same marks for the same goods.5
In its Answer, Applicant denies the salient allegations of the Notice of Opposition
and asserts two affirmative defenses.6 The first (denying any likelihood of confusion)
3 1 TTABVUE 4 (para. 4). Reg. No. 7427309, issued on June 25, 2024. The mark is described
as “consist[ing] of mushroom cloud shaped character having bloodshot eyes.” Color is not
claimed as a feature of the mark. 9 TTABVUE 52-54. At the time the Notice of Opposition
was filed, this mark was not yet registered, so Opposer pleaded ownership of its then-pending
application Ser. No. 98035207. 1 TTABVUE 4 (para. 4). Opposer subsequently made of record
under its notice of reliance a TSDR printout of the resulting registration (Reg. No. 7427309).
9 TTABVUE 52-54. The pleading of an application is viewed as providing sufficient notice to
the defendant of the plaintiff’s intention to rely on any registration that issues from the
pleaded application. See United Global Media Grp., Inc. v. Tseng, No. 91200786, 2014 TTAB
LEXIS 348, at *3 n.3 (TTAB 2014) (opposer that pleads ownership of the underlying
applications in the notice of opposition may make the registrations which issue during the
opposition of record without having to amend the notice of opposition to assert reliance on
the registrations); UMG Recordings, Inc. v. O’Rourke, No. 91178937, 2009 TTAB LEXIS 533,
at *11 n.12 (TTAB 2009) (opposer that pleads ownership of application would have to make
any subsequently issued registration of record but would not have to amend notice of
opposition prior to doing so).
For ease of reference, we refer to Opposer’s pleaded application together with its pleaded
registrations collectively as “Opposer’s pleaded registrations.”
4 1 TTABVUE 4 (para. 5). Reg. No. 2599426, issued on July 23, 2002; renewed. 9 TTABVUE
40-42.
5 1 TTABVUE 4-5 (paras. 6-7).
6 7 TTABVUE.

Opposition No. 91292159
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and the second (alleging lack of knowledge and willful intent) are amplifications of
Applicant’s denials, not true affirmative defenses, and are treated as such. Mars
Generation, Inc. v. Carson, No. 91224726, 2021 TTAB LEXIS 386, at *4 .
Both Applicant and Opposer submitted evidence during their assigned trial
periods, but only Opposer filed a brief.7 Because Opposer bears the burden of proof,
Applicant has no obligation to submit evidence or a brief, and we do not construe its
decision not to file a brief as a concession of the case. See Trademark Rule 2.128(a)(1),
37 C.F.R. § 2.128(a)(1); Yazhong Investing Ltd. v. Multi-Media Tech. Ventures, Ltd.,
No. 92056548, 2018 TTAB LEXIS 168, at *12 n.13 (TTAB 2018); see also TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 801.02(b) (2025) (“The
filing of a brief on the case is optional, not mandatory, for a party in the position of
defendant.”).
For the reasons explained below, we dismiss the opposition.
I. Record
The record consists of the pleadings,8 and, by operation of Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the file history of the involved application.9 In
addition, the record includes the following evidence introduced by the parties.
7 9, 10, 11 TTABVUE.
8 Opposer asserts in its brief that the record includes its “Notice of Opposition and Exhibits
as pleadings[,]” 11 TTABVUE 9, but, to be clear, there are no exhibits attached to the Notice
of Opposition.
9 Both Opposer and Applicant made of record copies of documents from the file history of the
involved application. Because the file history of the involved application is automatically of
record, it was unnecessary for either party to make these documents of record under a notice
of reliance.

Opposition No. 91292159
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Opposer introduced:
• a notice of reliance on (1) TSDR printouts of Opposer’s pleaded
registrations; and (2) website printouts.10
Applicant introduced:
• a notice of reliance on (1) copies of the certificates of registration of third-
party marks; and (2) website printouts.11
II. Entitlement to a Statutory Cause of Action
Applicant did not file a brief, and thus has not disputed Opposer’s entitlement to
a statutory cause of action; regardless, it is a necessary element of the plaintiff’s case
in every inter partes proceeding. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1302-
07 (Fed. Cir. 2020). To establish entitlement to a statutory cause of action, a plaintiff
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. See Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1070 (Fed. Cir.
2022); Corcamore, 978 F.3d at 1303.
Opposer has properly made of record TSDR printouts of its pleaded registrations
showing their current status and title.12 This evidence establishes Opposer’s
entitlement to a statutory cause of action. See Cunningham v. Laser Golf Corp., 222
F.3d 943, 945 (Fed. Cir. 2000) (registration establishes “standing”); Monster Energy
Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *15-16 (TTAB 2023) (pleaded
10 9 TTABVUE.
11 10 TTABVUE.
12 9 TTABVUE 40-54.

Opposition No. 91292159
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registrations establish entitlement to oppose on the ground of priority and likelihood
of confusion).
III. Priority and Likelihood of Confusion
We turn now to Opposer’s claim of likelihood of confusion. To prevail, Opposer
must prove both priority and likelihood of confusion. Barbara’s Bakery, Inc. v.
Landesman, No. 91157982, 2007 TTAB LEXIS 9, at *6 (TTAB 2007). We consider
each element in turn.
A. Priority
Because Opposer’s pleaded registrations are of record and Applicant has not
counterclaimed to cancel any of them, Opposer’s priority is not at issue as to these
registered marks and the goods identified in the registrations. King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1400-01 (CCPA 1974); Nkanginieme v.
Appleton, No. 91256464, 2023 TTAB LEXIS 64 (TTAB 2023).
B. Likelihood of Confusion
Our likelihood of confusion determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours and Co., 476 F.2d 1357, 1361 (CCPA 1973)
(“DuPont”); see also In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
Varying weight may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Cap. City Bank Grp., Inc., 637 F.3d 1344, 1355 (Fed.
Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 1206 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular

Opposition No. 91292159
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determination.”). “Not all DuPont factors are relevant in each case, and the weight
afforded to each factor depends on the circumstances.” Stratus Networks, Inc. v.
UBTA-UBET Commc’ns Inc., 955 F.3d 994, 998 (Fed. Cir. 2020). “Any single factor
may control a particular case.” Id.
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods or services. See Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976) (“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.”). We
discuss these factors and others for which there is evidence and argument.
We previously determined that Opposer established priority based on its pleaded
registrations. However, we focus our likelihood of confusion analysis, as Opposer
does, on only one of the registered marks: (Reg. No. 7287357)
(“Compared Mark” or “Compared Registration”).13 In its brief, Opposer uses this
mark as the basis of its comparison of the parties’ marks under the first DuPont
factor.14 We agree with Opposer that this mark has the most points in common with
Applicant’s involved mark; accordingly, we thus need not consider whether there is a
likelihood of confusion between Applicant’s mark and Opposer’s other pleaded
13 11 TTABVUE 17.
14 11 TTABVUE 17-19.

Opposition No. 91292159
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registered marks. See Heil Co. v. Tripleye GmbH, No. 91277359, 2024 TTAB LEXIS
494, at *45-46 (TTAB 2024) (focusing the likelihood of confusion analysis on two of
Opposer’s four pleaded registered marks); In re Max Cap. Grp. Ltd., 2010 TTAB
LEXIS 1, at *19-20 (TTAB 2010).
1. Similarity or Dissimilarity and Nature of the Parties’ Goods,
Established, Likely-to-Continue Channels of Trade, and Classes of
Consumers
We turn first to the second and third DuPont factors, which assess the similarity
or dissimilarity of the parties’ goods, their channels of trade and classes of
purchasers. DuPont, 476 F.2d at 1361. Our determination must be based on the
identifications of goods in the Compared Registration and the involved application.
Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1322-23 (Fed. Cir.
2014); 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
sales of the goods are directed.”).
When considering the second and third factors, recall that Opposer’s Compared
Registration identifies “candy.” Applicant’s involved application identifies “candies;
candy.” Inasmuch as Applicant’s identified “candies” is the plural of “candy,” and both
parties identify “candy,” the goods are identical.
Because Applicant’s goods and the goods identified in Opposer’s Compared
Registration are identical, we must presume that these goods move in the same

Opposition No. 91292159
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channels of trade and are available to the same classes of customers. In re Viterra
Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (finding Board entitled to rely on this
presumption); see also Heil Co., 2024 TTAB LEXIS 494, at *87-88 (“Because the
International Class 9 goods in Applicant’s application and Opposer’s [registration]
are in-part identical, we must presume that the channels of trade and classes of
purchasers are the same for such goods.”).
The second and third DuPont factors weigh in favor of a finding of likelihood of
confusion.
2. The Conditions Under Which Sales Are Made, i.e. “Impulse” vs.
Careful, Sophisticated Purchasing
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. Purchaser sophistication or degree of care may tend to minimize
likelihood of confusion; conversely, impulse purchases of inexpensive items may tend
to have the opposite effect. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1376 (Fed. Cir. 2005). Precedent requires that we
base our decision on the least sophisticated potential purchasers. Stone Lion, 746
F.3d at 1325.
Because both parties identify “candy,” which is unrestricted as to classes of
purchasers, the nature and type of candy, and its pricing, we can assume that it is
offered not only to sophisticated buyers but also to the general public, and includes
both expensive and inexpensive candy. Indeed, the broadly identified word “candy”
includes any type of candy, including candy sold generally to consumers with

Opposition No. 91292159
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sophisticated palates, i.e., gourmet chocolates, as well as inexpensive candy items
that may be purchased by members of the general public on impulse. Keeping in mind
that Board precedent requires us to consider the “least sophisticated consumer in the
class,” Stone Lion, 746 F.3d at 1325, and that the consumers here include members
of the general public, we find that the fourth DuPont factor also weighs in favor of
finding a likelihood of confusion. Heil Co., 2024 TTAB LEXIS 494, at *88 (fourth
factor weighs in favor of confusion where goods were identical).
3. Strength of Opposer’s Compared Mark
“Two of the DuPont factors (the fifth and sixth) consider strength.” Spireon, Inc.
v. Flex LTD, 71 F.4th 1355, 1362 (Fed. Cir. 2023). The fifth DuPont factor enables
Opposer to prove that its pleaded mark is entitled to an expanded scope of protection
by adducing evidence of “[t]he fame of the prior mark (sales, advertising, length of
use),” whereas the sixth DuPont factor allows Applicant to contract that scope of
protection by adducing evidence of “[t]he number and nature of similar marks in use
on similar goods.” Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022
TTAB LEXIS 228, at *23 24 (TTAB 2022) (quoting DuPont, 476 F.2d at 1361).
“[T]he strength of a mark is not a binary factor[ ]” and “varies along a spectrum
from very strong to very weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d
1334, 1340 (Fed. Cir. 2015) (quoting In re Coors Brewing Co., 343 F.3d 1340, 1345
(Fed. Cir. 2003)). Opposer argues that its mark is “famous”15 and for that reason it
should be considered to be on the strong end of the spectrum. We also consider
15 11 TTABVUE 22.

Opposition No. 91292159
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evidence of third-party uses and third-party registrations proffered by Applicant to
show that “consumers are accustomed to distinguishing between multiple ‘sour-
themed’ brands.”16
a. Commercial Strength of the Compared Mark
In considering commercial strength, we assess the extent to which the relevant
public recognizes a mark as denoting a single source. See, e.g., Joseph Phelps
Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1324-1325 (Fed. Cir.
2017); accord Palm Bay Imps., 396 F.3d at 1375 (fame for confusion purposes arises
as long as a significant portion of the relevant consuming public recognizes the mark
as a source indicator). Commercial strength, or fame, “may be measured indirectly,
among other things, by the volume of sales and advertising expenditures of the goods
traveling under the mark, and by the length of time those indicia of commercial
awareness have been evident.” Omaha Steaks Int’l, Inc. v. Greater Omaha Packing
Co., 908 F.3d 1315, 1319 (Fed. Cir. 2018) (quoting Bose Corp. v. QSC Audio Prods.,
Inc., 293 F.3d 1367, 1371 (Fed. Cir. 2002)).
Commercial strength may also be measured by “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.” See Heil Co.,
2024 TTAB LEXIS 494, at *50-51. If proven, fame plays a “dominant role in the
process of balancing the DuPont factors.” Palm Bay Imps., 396 F.3d at 1374 (quoting
Recot, Inc. v. M.C. Becton, 214 F.3d 1322, 1327 (Fed. Cir. 2000)). “Because of the
16 10 TTABVUE 3.

Opposition No. 91292159
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extreme deference that we accord a famous mark in terms of the wide latitude of legal
protection it receives, and the dominant role fame plays in the likelihood of confusion
analysis, it is the duty of the party asserting that its mark is famous to clearly prove
it.” Made in Nature, 2022 TTAB LEXIS 228, at *35-36.
Opposer argues that its mark is famous based on sales of its identified goods since
2001 and its “viral social media [posts] and licensing of the marks for other consumer
products.”17 To support its argument of longtime use, Opposer relies solely on the
dates of use set out in the TSDR printouts of its pleaded registrations.18 However, it
is well-settled that the allegation of the dates of use listed in the registrations is not
evidence of use. Trademark Rule 2.122(b)(2) (“The allegation in . . . a registration [ ]
of a date of use is not evidence on behalf of the . . . registrant. . . .”). Rather, “a date
of use of a mark must be established by competent evidence.” Id. Without testimony
from a witness based on personal knowledge, Opposer has failed to so establish its
date of use.
To support its argument that its mark is famous, Opposer relies on two third-
party articles: one discusses Opposer’s licensing efforts and the other consists of a
printout of a YouTube.com page showing a screen capture of a video with the caption
“Slime lickers selling out due to TikTok fame.”19 To the extent that Opposer offers
this evidence to show unsolicited media attention and/or consumer exposure to the
17 11 TTABVUE 22 (citing 9 TTABVUE 38-54 (Exhibits 2-4), and 70-82 (Exhibits 8-9)).
18 11 TTABVUE 22 (citing 9 TTABVUE 38-54 (Exhibits 2-4)).
19 11 TTABVUE 22 (citing 9 TTABVUE 70-82 (Exhibits 8-9)).

Opposition No. 91292159
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Compared Mark, this evidence offered under a notice of reliance is proper and can be
considered for what it shows on its face. However, even considering it, two unsolicited
media pieces by third-parties, without more, is insufficient to find that the Compared
Mark is commercially strong and entitled to a broad scope of protection.
Moreover, even considering this evidence for what it shows on its face, it has little
probative value because the Compared Mark is not shown in either exhibit, so this
evidence does not establish on its face that consumers have been exposed to the
Compared Mark. We acknowledge that the licensing article mentions the “Toxic
Waste brand,” but it is not clear which, if any, of the pleaded marks, is encompassed
by this designation.
To the extent that Opposer offers this same evidence for the truth of the matter
asserted in the articles, rather than what they show on their face, this evidence
constitutes improper hearsay. For example, this evidence is not proper to show, as
Opposer argues, that Opposer’s mark is the subject of a “viral social media post” or
widespread “licensing of the mark for other consumer products.”20 See, e.g., Hangzhou
Mengku Tech. Co., Ltd. v. Shanghai Zhenglang Tech. Co., Ltd., No. 91272143, 2024
TTAB LEXIS 575, at *9 (TTAB 2024) (“The Internet materials are self-authenticating
and will be considered for what they show on their face; we do not consider these
Internet materials for the truth of any assertion contained therein.”); WeaponX
Performance Prods. v. Weapon X Motorsports, Inc., No. 91221553, 2018 TTAB LEXIS
72, at *18-19 (TTAB 2018); see also TBMP § 704.08(b) (“[Internet documents] can be
20 11 TTABVUE 22.

Opposition No. 91292159
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used to demonstrate what the documents show on their face and may not be used to
demonstrate the truth of what has been printed because they constitute hearsay.”)
and cases cited therein.
Opposer offers no other evidence of the type that we generally see to support a
claim that a mark is commercially strong. For example, Opposer failed to introduce
evidence such as (1) its volume of annual sales of candy offered under the Compared
Mark in the United States; (2) advertising expenditures for candy offered under the
Compared Mark; and (3) samples of advertising together with evidence of widespread
geographical reach of such advertising. See e.g., Omaha Steaks, 908 F.3d at 1319-20
(fame of OMAHA STEAKS mark supported by advertising expenditures of $45
million in 2011 and over $50 million in 2012 and 2013); Bose Corp., 293 F.3d at 1372
(fame of ACOUSTIC WAVE mark supported by $50 million in annual sales and $5
million in annual advertising expenditures over the 17 years of use of the mark prior
to 2002). We would also expect to see some form of context for this information, such
as market share. Omaha Steaks, 908 F.3d at 1320 (“Market share is but one way of
contextualizing ad expenditures or sales figures.”).
Because Opposer has failed to establish that its mark falls on the higher end of
the spectrum of commercial strength, the fifth factor is neutral.
b. Number and Nature of Similar Marks in Use on Similar
Goods
Applicant seeks to diminish the scope of protection for Opposer’s Compared Mark
by introducing evidence to show that “these depictions and/or images [of faces] are a

Opposition No. 91292159
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commonly registered term” and that “consumers are accustomed to distinguishing
between multiple ‘sour-themed’ brands.”21
Applicant made of record both evidence of third-party use and registrations of
various design marks for a range of goods and services. “Evidence of third-party use
of similar marks on similar goods is relevant to show that a mark is relatively weak
and entitled to only a narrow scope of protection.” Apex Bank v. CC Serve Corp., 156
F.4th 1230, 1235 (Fed. Cir. 2025) (quoting Palm Bay Imps., 396 F.3d at 1373). “The
purpose of introducing evidence of third-party use is to show that customers have
become so conditioned by a plethora of such similar marks that customers have been
educated to distinguish between different [such] marks on the bases of minute
distinctions.” Omaha Steaks, 908 F.3d at 1324. Such evidence tends to indicate a lack
of commercial strength, while third-party registration evidence without proof of use
may bear on conceptual weakness if a term is commonly registered for similar goods.
See Jack Wolfskin Ausrustung Fur Draussen GmbH v. New Millennium Sports,
S.L.U., 797 F.3d 1363, 1374 (Fed. Cir. 2015).
Inasmuch as there is no evidence that the third-party marks are used with goods
or services related to the goods at issue, i.e., “candy,” we confine our analysis to those
goods that are identical to those identified by the parties. As a result, we disregard
many of the third-party registrations, such as those that identify: “chili seasoning”
(Reg. No. 7510531);22 “ice cream shop services in the nature of a restaurant” (Reg. No.
21 10 TTABVUE 3.
22 10 TTABVUE 22-24.

Opposition No. 91292159
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6313427);23 “frozen confections” (Reg. No. 3854,863);24 “cocoa” (Reg. No. 6717051);25
“coffee” (Reg. No. 6831239);26 “popcorn” (Reg. No. 6,999,995);27 “sandwiches” (Reg. No.
7272820);28 and “pancakes” (Reg. No. 7282259).29
Focusing on those registrations that identify “candy,” the marks of these
remaining third-party registrations include additional matter or have a different
overall commercial impression, rendering them less similar to Opposer’s Compared
Mark than Applicant’s mark. See e.g., Made in Nature, 2022 TTAB LEXIS 228, at
*29-30. We thus afford many of Applicant’s third-party registrations, such as those
shown below, low probative value:
30
23 10 TTABVUE 25-26.
24 10 TTABVUE 27.
25 10 TTABVUE 28-29.
26 10 TTABVUE 30-31 (black and white image), 34-35 (color mark).
27 10 TTABVUE 34-35; see also 10 TTABVUE 60-61.
28 10 TTABVUE 38.
29 10 TTABVUE 54-55.
30 10 TTABVUE 14.

Opposition No. 91292159
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31
32
33
31 10 TTABVUE 20-21. Variations of this mark, all of which we consider to be dissimilar,
appear at 10 TTABVUE 36-37, 58-59.
32 10 TTABVUE 40-51.
33 10 TTABVUE 52-53.

Opposition No. 91292159
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34
We now turn to the remaining evidence of third-party marks. While these marks
are used with candy, the marks are also of low probative value because we find the
images of these third-party marks to be less similar to Opposer’s Compared Mark
than Applicant’s. Examples include:
35 36 37
38 39 40
34 10 TTABVUE 56-57. Registrant also owns variations of this mark, including an angry
apple, angry mango, and angry lemon, all of which are dissimilar. 10 TTABVUE 62-67.
35 10 TTABVUE 92.
36 10 TTABVUE 99.
37 10 TTABVUE 105.
38 10 TTABVUE 109.
39 10 TTABVUE 116.
40 10 TTABVUE 117.

Opposition No. 91292159
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Additionally, the images consisting of characters with extended tongues and
animated fruit having exaggerated expressions available for licensing from
Adobe.com and Shutterstock.com, for example, are not trademarks but rather
available for use or licensing by others for any number of reasons. These images have
a different overall commercial impression and as a result are less similar to Opposer’s
Compared Mark than Applicant’s mark, reducing their probative value. See e.g.,
Made in Nature, 2022 TTAB LEXIS 228, at *29-30.
In short, considering Applicant’s evidence of third-party use and registration it
succeeds in persuading us that various individual elements of the Compared Mark,
i.e., a character with a rounded head, wide eyes and an outstretched tongue, are
common tropes in connection with candy and related goods and services. However,
showing that these individual visual elements are commonly used does not establish
the weakness of the Compared Mark, where overall the marks look quite different
than Opposer’s registered mark.
c. Conclusion as to Strength or Weakness of Opposer’s
Compared Mark
Considering the fifth and sixth DuPont factors, because we find Opposer’s
Compared Mark to be of average commercial strength for candy, and because
Applicant was not successful in diminishing the strength of Opposer’s Compared
Mark, we find that Opposer’s Compared Mark is entitled to the ordinary scope of
protection to which inherently distinctive marks are entitled. See Bell’s Brewery, Inc.
v. Innovation Brewing, 2017 TTAB LEXIS 452, at *20 (TTAB 2017) (citing Joseph

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Phelps Vineyards, 857 F.3d at 1325 (stating that likelihood of confusion fame varies
along a spectrum from very strong to very weak)).
4. Similarity or Dissimilarity of the Parties’ Marks
We now turn to the first DuPont factor, which assesses the similarity or
dissimilarity of the marks. DuPont, 476 F.2d at 1361. We consider “the marks in their
entireties as to appearance, sound, connotation and commercial impression.” Viterra,
671 F.3d at 1362 (quoting DuPont, 476 F.2d at 1361). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” Inn at St. John’s,
LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13 (TTAB 2018), aff’d per curiam,
777 F. App’x 516 (Fed. Cir. 2019) (quoting In re Davia, No. 85497617, 2014 TTAB
LEXIS 214, at *4 (TTAB 2014)).
The proper test “is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Cai v. Diamond Hong, 901 F.3d at 1373 (quoting Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012)). “[S]imilarity is
not a binary factor but is a matter of degree.” In re St. Helena Hosp., 774 F.3d 747,
752 (Fed. Cir. 2014) (quoting Coors Brewing, 343 F.3d at 1344).
When marks appear on identical goods, the degree of similarity between the
parties’ marks necessary to support a conclusion of likely confusion declines.
Bridgestone Ams. Tire Operations, LLC v. Fed. Corp., 673 F.3d 1330, 1337 (Fed. Cir.
2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed.
Cir. 1992).

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Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components. Nonetheless, 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 a consideration of the marks in their
entireties. In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985) (“[T]here 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.”); see also Stone Lion, 746 F.3d at 1322.
The focus is on the recollection of the average purchaser, who normally “retains a
general rather than a specific impression of marks.” In re i.am.symbolic, llc, No.
85916778, 2018 TTAB LEXIS 281, at *11 (TTAB 2018).
Recall that Applicant seeks to register the composite word and design mark
, while Opposer’s Compared Mark consists solely of the design .
In marks “consisting of words and a design, the words are normally accorded
greater weight because they are likely to make a greater impression upon purchasers,
to be remembered by them, and to be used by them to request the goods.” Sabhnani
v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS 464, at *39-40 (TTAB 2021)
(quoting In re Aquitaine Wine USA, LLC, No. 86928469, 2018 TTAB LEXIS 108, at
*6 (TTAB 2018)); Viterra, 671 F.3d at 1366 (“[T]he verbal portion of the mark is the

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one most likely to indicate the origin of the goods to which it is affixed.” (quoting CBS,
Inc. v. Morrow, 708 F.2d 1579, 1582 (Fed. Cir. 1983)).
We see no reason to deviate from this general proposition here. While we
acknowledge that Applicant’s mark includes a large design element, we find that the
literal elements SOUR CITY to be its dominant element. Moreover, the exaggerated
expression on the character’s face, i.e., its wide-eyes and outstretched tongue,
suggests it has just eaten something extremely sour. Thus, the image reinforces the
literal elements of the mark and, for that reason, further supports our finding that
the literal elements SOUR CITY are the dominant portion of Applicant’s mark. This
is so, despite the fact that, as Opposer argues, the image is larger in size compared to
the size of the literal elements.41
The fact that Applicant has disclaimed the term SOUR does not preclude us from
finding the literal elements SOUR CITY dominant, contrary to Opposer’s argument.42
See, e.g., Viterra, 671 F.3d at 1366-67 (“Although Viterra is correct that the registrant
disclaimed exclusive rights to the term ‘-Seed’, we previously have found that the
dominant portion of a composite word and design mark is the literal portion, even
where the literal portion has been disclaimed.”); Giant Food, Inc. v. Nation’s
Foodservice, Inc., 710 F.2d 1565, 1570-71 (Fed. Cir. 1983) (affirming that the term
GIANT was the dominant portion of a mark consisting of the words GIANT
41 11 TTABVUE 18.
42 11 TTABVUE 19.

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HAMBURGERS with a large background design, even though the applicant
disclaimed the terms GIANT HAMBURGERS).
Inasmuch as Opposer’s Compared Mark consists solely of a design, literal
elements are completely absent from it. Thus, comparing Opposer’s Compared Mark
for similarity in sight and sound to the dominant element of Applicant’s mark, i.e.,
the literal elements SOUR CITY, we find that the marks share no common literal
elements and are dissimilar in sight and sound.
Opposer argues that the parties’ marks are similar in commercial impression
“given the dramatic visual similarities between the overall marks, the fact that
Applicant’s mark included the word ‘sour’ when Opposer’s products sold in
conjunction with Opposer’s mark are sour candy products, and the appearances of
prominent but very unique features such as a cloud shaped head, bloodshot eyes of
different sizes and a tongue fully extended from the same part of each character’s
mouth.”43 We disagree. As an initial matter, we take judicial notice that the term
“city” means “a thing, event, or situation that is strongly characterized by a specified
quintessential feature or quality.”44 The dictionary’s examples include “The movie
was shoot-out city[,]” and “Getting lost in the maze was panic city.”45 With this in
mind, SOUR CITY for candy connotes candy that is extremely sour. In contrast,
43 11 TTABVUE 19.
44 MERRIAM-WEBSTER DICTIONARY, accessed on April 29, 2026. https://www.merriam-
webster.com/dictionary/city?src=search-dict-hed. Shenzhen IVPS Tech. Co. v. Fancy Pants
Prods., LLC, No. 91263919, 2022 TTAB LEXIS 383, at *41 (TTAB 2022) (taking judicial
notice of dictionary definition).
45 MERRIAM-WEBSTER DICTIONARY, accessed on April 29, 2026 (emphasis in original).
https://www.merriam-webster.com/dictionary/city?src=search-dict-hed.

Opposition No. 91292159
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Opposer’s mark, depicting a mushroom cloud shaped character licking a rolling liquid
candy product, connotes candy having an extremely strong flavor, i.e., akin to
something “nuclear” in one’s mouth, such as spicy, but nothing suggests that the taste
is that of sour. When comparing the marks in their entireties, nothing in Applicant’s
mark suggests that the character has tasted something toxic; rather, the literal
elements SOUR CITY suggest the character has eaten something sour. This is in
contrast to Opposer’s Compared Mark: the mushroom cloud image and the resulting
toxic connotation is completely missing from Applicant’s mark. As a result, the marks
when considered in their entireties are different in connotation and commercial
impression.
When comparing the parties’ marks in their entireties, we agree with Opposer
that the parties’ design portions share some general, thematic similarities, i.e., each
character has (i) a sort of rounded head; (ii) bloodshot eyes, with the right eye slightly
larger than the left; and (iii) a fully extended tongue extending from the left-center of
their mouth.46 However, the record shows that the shared elements of a character
with a rounded head, wide-eyes and outstretched tongue are relatively weak,47 and
not “unique” as Opposer argues.48 Moreover, the presence of the wording SOUR CITY
in the Applicant’s mark suffices to distinguish the marks aurally and further
distinguishes them visually.
46 11 TTABVUE 17-18.
47 See discussion supra Section II(B)(3).
48 11 TTABVUE 19.

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The first DuPont factor weighs against a likelihood of confusion.
5. Actual Confusion or Its Absence
Under the seventh and eighth DuPont factors, we consider the nature and extent
of actual confusion, if any, in light of the length of time and conditions under which
there has been concurrent use of the subject marks. DuPont, 476 F.2d at 1361.
The filing basis for the involved application is based on intent to use and no
amendment to allege use has been filed. Given the lack of testimony in the record of
concurrent use of the parties’ marks, there has been no opportunity for actual
confusion to have occurred. See Cunningham, 222 F.3d at 949 (affirming finding that
“[the Board] could not conclude there had even been an opportunity for actual
confusion”); Heil Co., 2024 TTAB LEXIS 494, at *93.
Accordingly, the seventh and eighth DuPont factors are neutral.
6. Other DuPont Factors
In addition to the DuPont factors discussed above, Opposer briefly discusses the
ninth, tenth, and thirteenth factors but concludes that they are either irrelevant or
neutral.49 We agree. Opposer argues without evidence that the twelfth factor weighs
in favor of a likelihood of confusion because of the high degree of similarity of the
marks.50 Inasmuch as Opposer under the twelfth factor merely summarily repeats its
arguments previously discussed under the first DuPont factor, we disregard them
and consider this factor neutral as well.
49 11 TTABVUE 23-24.
50 11 TTABVUE 24

Opposition No. 91292159
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7. Weighing of the DuPont Factors
The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there has been evidence and argument; “explain the results of that
weighing;” and “the weight [we] assigned to the relevant factors.” In re Charger
Ventures LLC, 64 F.4th 1375, 1384 (Fed. Cir. 2023). “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).
Because the goods are identical, the second and third DuPont factors (similarity
of the goods and similarity of the trade channels, respectively) weigh heavily in
support of a finding that confusion is likely. The fourth DuPont factor (purchasing
conditions) also favors a likelihood of confusion. The fifth, sixth, seventh and eighth
DuPont factors (fame, number and nature of similar marks in use on similar goods,
nature and extent of actual confusion and conditions under which there has been
concurrent use without evidence of actual confusion, respectively) are neutral. The
other factors (the ninth, tenth, twelfth, and thirteenth factors) are either neutral or
irrelevant. However, the critical first DuPont factor (similarity or dissimilarity of the
marks) weighs against a likelihood of confusion.
Any of the DuPont factors may play a dominant role. DuPont, 476 F.2d at 1361-
62. In some cases, even a single factor may be dispositive. Kellogg Co. v. Pack’em
Enterprises Inc., 951 F.2d 330, 333 (Fed. Cir. 1991). We find that the dissimilarity of
the marks in sound, appearance, connotation, and commercial impression to be
pivotal here and that it outweighs the other DuPont factors. The respective marks

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overall are so dissimilar that even when used on identical goods in overlapping trade
channels, consumers likely would not be confused into believing that they emanate
from the same source. We therefore conclude that confusion is unlikely as to
Applicant’s identified goods.
IV. Decision
The opposition to registration of the mark is dismissed.