Ripped Franchise, LLC

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: August 10, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Ripped Franchise, LLC
_____
Serial No. 98369548
_____
Zachary Elster and Melanie K. Lane of Bekiares Eliezer LLP,
for Ripped Franchise, LLC.
Robert King, Trademark Examining Attorney, Law Office 133,
Laurie Kaufman, Managing Attorney.
_____
Before Lykos, Allard, and Elgin, Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
Applicant Ripped Franchise, LLC seeks registration on the Principal Register of
the design mark for “Physical fitness instruction” services in
International Class 41.1
1 Serial No. 98369548 was filed on January 22, 2024 under Trademark Act Section 1(a), 15
U.S.C. § 1051(a), based on Applicant’s claimed first use of the mark and first use of the mark
in commerce at least as early as November 14, 2006. The mark is described as: “The word
‘RIPPED’ in uppercase, white letters. The word starts large then gets smaller in the middle,
then gets large again. The word is surrounded by a thin white oval, elongated sideways. On
top and the bottom of the oval is another thin, white line connecting the ‘R’ and ‘D’ in
‘RIPPED’. All of this on a black background.”

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The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used in
connection with the identified services, so resembles the registered mark GET
RIPPED (in standard characters) for “physical fitness training services and
educational services, namely, providing training of physical fitness instructors for
certification in the field of physical fitness training,” in International Class 41,2 that
it is likely to cause confusion, to cause mistake, or to deceive.
The Examining Attorney denied Applicant’s request for reconsideration after the
refusal was made final. Applicant appealed. Applicant and the Examining Attorney
filed briefs.3
For the reasons set forth below, we affirm the refusal to register.
I. Likelihood of Confusion Standard
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
goods or services 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 probative evidence
2 Registration No. 5137759 registered on February 7, 2017; Combined Declaration of Use and
Incontestability under Trademark Act Sections 8 and 15, 15 U.S.C. §§ 1058, 1065, accepted
and acknowledged.
3 Applicant’s brief is at 6 TTABVUE. The Examining Attorney’s brief is at 8 TTABVUE.
Citations to the prosecution record refer to the USPTO Trademark Status and Document
Retrieval system (TSDR) in the downloadable .pdf format by page number. References to the
briefs on appeal refer to the Board’s TTABVUE docket system. In re Integra Biosciences Corp.,
No. 87484450, 2022 TTAB LEXIS 17, at *6.

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of record bearing on a likelihood of confusion. In re E. I. DuPont de Nemours & Co.,
476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”); see also In re Majestic Distilling Co.,
315 F.3d 1311, 1315 (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) (citing 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.
Although 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 services. In re i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (citing
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)). In
cases where we find some factor or factors relatively more important, we weigh or
balance them more heavily in the final step of assessing the factors to determine
whether confusion is likely.
II. Likelihood of Confusion Analysis
Applicant addressed the first, sixth, seventh, and thirteenth DuPont factors; the
Examining Attorney also addressed the second and third factors. We address each of
these factors, although we start our analysis with the second and third factors based
on the facts in this case.

Serial No. 98369548
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A. The Services
The second DuPont factor “considers the similarity or dissimilarity and nature of
the [services] as described in the involved application and cited registration … and
contemplates whether the consuming public may perceive the respective [services] as
related enough to cause confusion about their source or origin.” In re Samsung
Display Co., No. 90502617, 2024 TTAB LEXIS 258, at *6 (cleaned up; citations
omitted). It is sufficient for a finding of likelihood of confusion if relatedness is
established for any item encompassed by the identification of services within a
particular class in the application or registration. See Tuxedo Monopoly, Inc. v. Gen.
Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981).
We “begin with the identifications of … services in the registration[s] and
application under consideration.” In re OSF Healthcare Sys., No. 88706809,
2023 TTAB LEXIS 353, at *9-10 (cleaned up; citation omitted). The Examining
Attorney argues that the services are legally identical based on the broadly-described
“physical fitness instruction” services in the subject application, which encompasses
the narrower “physical fitness training services and educational services, namely,
providing training of physical fitness instructors for certification in the field of
physical fitness training” in the cited registration.4 The Examining Attorney made of
record evidence, including dictionary definitions, to show that “training” and
4 8 TTABVUE 7.

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“instruction” are synonyms and used interchangeably.5 Applicant does not contest
this factor.
We find that the services are overlapping, and thus legally identical, in part. The
second DuPont factor favors a finding of likelihood of confusion.
B. The Channels of Trade
The third DuPont factor concerns the “similarity or dissimilarity of established,
likely-to-continue trade channels.” Samsung, 2024 TTAB LEXIS 258, at *17 (quoting
DuPont, 476 F.2d at 1361). To the extent the services of Applicant and Registrant are
legally identical in part, we presume that these services travel in the same channels
of trade to the same classes of consumers. See In re Viterra, Inc., 671 F.3d 1358,
1362 (Fed. Cir. 2012) (Board was entitled to rely on presumption that, absent
restrictions, legally identical goods travel in the same channels of trade to the same
class of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 754 (CCPA
1968) (where there are legally identical goods, class of purchasers is considered to be
the same). Again, Applicant does not contest this factor.
The third DuPont factor favors a finding of likelihood of confusion.
C. The Marks
We next turn to the first DuPont factor, the “similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.” In re Ye Mystic Krewe of Gasparilla, No. 90522364, 2025 TTAB LEXIS
5 April 15, 2025 Final Office Action at TSDR 8-44.

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412, at *9 (quoting DuPont, 476 F.2d at 1361). In comparing the marks, we are
mindful that the legal identity of some of the services and their overlapping channels
of trade and classes of consumers reduce the degree of similarity between the marks
necessary to find a likelihood of confusion. Viterra, 671 F.3d at 1363; In re Mighty
Leaf Tea, 601 F.3d 1342, 1348 (Fed. Cir. 2010).
Applicant’s composite mark is and the cited mark is GET
RIPPED (standard characters). RIPPED is the only literal term in Applicant’s mark,
and the cited mark includes the additional term GET. The marks are similar in that
the cited mark incorporates the entire literal portion of Applicant’s mark. Although
there is no explicit rule that the marks are automatically similar, “[l]ikelihood of
confusion often has been found where the entirety of one mark is incorporated within
another.” Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019 TTAB LEXIS
347, at *20 (quoting Hunter Indus., Inc. v. Toro Co., No. 91203612, 2014 TTAB LEXIS
105, at *33). The literal term RIPPED is the dominant portion of the applied-for
composite mark; the stylization and design elements in the mark are minimal. See
Viterra, 671 F.3d at 1362 (“In the case of a composite mark containing both words
and a design, ‘the verbal portion of the mark is the one most likely to indicate the
origin of the [services]….’”), quoting CBS Inc. v. Morrow, 708 F.2d 1579, 1581-82 (Fed.
Cir. 1983).
The cited mark also is in standard characters and, as such, “may be presented in
any font style, size or color, including the same font, size and color as the literal

Serial No. 98369548
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portions of [Applicant’s] mark…and in the same stylization actually used or intended
to be used by [Applicant’s], or one that minimizes the differences or emphasizes the
similarities between the marks.” Sabhnani v. Mirage Brands, LLC, No. 92068086,
2021 TTAB LEXIS 464, at *43-44 (cleaned up; citations omitted). We must assume
the cited standard-character mark could be displayed in the same stylization in which
the word RIPPED appears in Applicant’s design mark (white uppercase block letters,
starting large then getting smaller in the middle, then large again).
We are not convinced by Applicant’s argument that the differences between the
numbers of words, letters, or syllables is sufficient to distinguish the marks.6
A determination of likelihood of confusion is not made on a purely mechanical basis.
Fuji Jyukogyo K.K. v. Toyota Jidosha K.K., No. 91063523, 1985 TTAB LEXIS 31, at
*8 (“Purchasers do not count letters when reacting to trademarks in the
marketplace.”); Am. B.D. Co. v. N.P. Beverages, Inc., No. 91060900, 1981 TTAB
LEXIS 117, at *2 (no proceeding number in original) (“Purchasers are not expected
to, and do not, count the number of letters which marks have in common.”) (citing
cases); In re John Scarne Games, Inc., 1959 TTAB LEXIS 31, at *1 (no proceeding
number in original) (“Purchasers of game boards do not engage in trademark syllable
counting[;] they are governed by general impressions made by appearance or sound,
or both.”).
6 6 TTABVUE 11-12.

Serial No. 98369548
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We also are not persuaded that the circular design elements in Applicant’s mark
distinguishes the marks.7 These elements will not be perceived as having any
trademark source significance on their own; rather, they will be taken by prospective
consumers merely as background matter, or as a carrier for the word RIPPED. See
Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS 464, at
*40 (finding rectangular exterior shape outlined in the mark is nothing more than a
non-descript carrier for the words and design) (citing In re Dixie Rests., Inc., 105 F.3d
1405, 1407 (Fed. Cir. 1997) (finding DELTA to be dominant portion of applicant’s
mark THE DELTA CAFE and design in part because ”the design is an ordinary
geometric shape that serves as a background for the word mark.”).
Finally, Applicant argues that the marks have different connotations and
commercial impressions in that “Applicant’s Mark evokes the image of a fit or
muscular body, whereas the Cited Mark connotes an imperative or command to
exercise.”8 We take judicial notice that RIPPED, as used in both marks, means
“having high muscle definition.”9 While there is a very slight difference in connotation
between GET RIPPED and RIPPED, the marks are overall similar in that both
suggest to consumers that using the identical services will result in users achieving
high muscle definition. The small difference in connotation does not overcome the
7 Id. at 11.
8 Id. at 12.
9 MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com/dictionary/ripped, accessed
August 10, 2026). The Board may take judicial notice of dictionary definitions, including
online dictionaries that exist in printed format. In re Cordua Rests. LP, No. 85214191, 2014
TTAB LEXIS 94, at *6 n.4; see also B.V.D. Licensing Corp. v. Body Action Design Inc.,
846 F.2d 727, 728 (Fed. Cir. 1988) (“dictionaries and encyclopedias may be consulted”).

Serial No. 98369548
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overall significant similarity between the marks in sight, sound, and overall
commercial impression.
The first DuPont factor favors a finding of likelihood of confusion.
D. Weakness of the Cited Mark
We next turn to an analysis of the sixth DuPont factor, which “allows Applicant
to contract th[e] scope of protection by adducing evidence of ‘[t]he number and nature
of similar marks in use on similar goods [or services].’” Made in Nature, LLC v.
Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 251, at *24 (quoting DuPont,
476 F.2d at 1361). A determination of the strength or weakness of the cited mark
helps inform us as to its scope of protection. See In re Morinaga Nyugyo K.K.,
No. 86338392, 2016 TTAB LEXIS 448, at *17-18 (“[T]he strength of the cited mark
is—as always—relevant to assessing the likelihood of confusion under the du Pont
framework.”).
When evaluating the strength or weakness of a mark, we look at the mark’s
inherent conceptual strength based on the nature of the term itself and its
commercial strength in the marketplace. See Spireon, Inc. v. Flex LTD, 71 F.4th 1355,
1362 (Fed. Cir. 2023) (“There are two prongs of analysis for a mark’s strength under
the sixth factor: conceptual strength and commercial strength.”); In re Chippendales
USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010) (measuring both conceptual and
marketplace strength); Made in Nature, 2022 TTAB LEXIS 251, at *24 (discussing
strength).

Serial No. 98369548
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Conceptual strength is a measure of the cited mark’s distinctiveness. A mark may
be placed “in categories of generally increasing distinctiveness: … (1) generic;
(2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco
Cabana, Inc., 505 U.S. 763, 768 (1992). The last three categories are considered
inherently distinctive.
“Where, as here, [a] mark is registered [on the Principal Register] without a
Section 2(f) claim of acquired distinctiveness, the mark is presumed to be inherently
distinctive.” Brooklyn Brewery Corp. v. Brooklyn Brew Shop, LLC, 17 F.4th 129,
146 (Fed. Cir. 2021); see also Heil Co. v. Tripleye GmbH, No. 91277359, 2024 TTAB
LEXIS 494, at *48-49 (where a mark “is registered on the Principal Register, with no
claim of acquired distinctiveness under Section 2(f), we presume it is inherently
distinctive, i.e., that it is at worst suggestive of the [services]”) (citing Trademark Act
Section 7(b), 15 U.S.C. § 1057(b)). This means that the cited mark, which has RIPPED
as its sole literal element, is presumptively entitled to at least “the normal scope of
protection to which inherently distinctive marks are entitled.” Sage Therapeutics, Inc.
v. Sageforth Psych. Servs., LLC, No. 91270181, 2024 TTAB LEXIS 139, at
*27 (quoting Bell’s Brewery, Inc. v. Innovation Brewing, No. 91215896, 2017 TTAB
LEXIS 452, at *20).
Nonetheless, we may consider whether the cited mark, or a component thereof
(here, RIPPED), is conceptually weak. See, e.g., Cunningham v. Laser Golf Corp.,
222 F.3d 943, 947 (Fed. Cir. 2000) (a “descriptive component of a mark may be given
little weight in reaching a conclusion on likelihood of confusion.”) (quoting In re Nat’l

Serial No. 98369548
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Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985)). As we noted above, RIPPED means
“having high muscle definition.” Thus, RIPPED has some suggestive significance in
the field of physical fitness training services.
Applicant argues the mark is “conceptually weak” and “entitled to a narrow scope
of protection.”10 Applicant argues that “[t]he term ‘RIPPED’ is extraordinarily
common in modern parlance in general and within the fitness space in particular.
Thus, it is no surprise that USPTO records reveal almost 20 active applications and
registrations for RIPPED-formative marks or marks incorporating the phonetic
equivalent of the term ‘RIPPED’ for fitness-related goods and services.”
Applicant points to five registrations of record (two of which were originally cited
by the Examining Attorney in refusing registration of the mark):
• RIPT90 for “Digital materials, namely, CDs, DVDs and
downloadable video files featuring exercise and fitness instruction”
in International Class 9;
• RIPPED FEMME for “Personal fitness training services” in
International Class 41;
• for “Physical fitness equipment, namely, workout
bands, jump rope, pullup bars, weightlifting belts, and weightlifting
gloves” in International Class 28;
• RIPPED AT 50 for “Educational services, namely, coaching and
training services in the field of health, fitness and wellness;
Educational services, namely, conducting live and virtual courses,
conferences, seminars, events and classes in the field of health,
fitness and wellness; Entertainment services, namely, providing
podcasts in the field of health, fitness, and wellness” in International
Class 41; and
10 6 TTABVUE 12.

Serial No. 98369548
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• RAPID RIPPED for “Manually-operated exercise equipment for
physical fitness purposes” in International Class 28.11
“Third party registrations are relevant to prove that some segment of the
composite marks which both contesting parties use has a normally understood and
well-recognized descriptive or suggestive meaning, leading to the conclusion that that
segment is relatively weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
1339 (Fed. Cir. 2015) (citation omitted). Even if “there is no evidence of actual use” of
“third-party registrations,” such registrations “may be given some weight to show the
meaning of a mark in the same way that dictionaries are used.” Tektronix, Inc. v.
Daktronics, Inc., 534 F.2d 915, 917 (CCPA 1976), cited in Juice Generation, 794 F.3d
at 1339.
As Applicant acknowledges, however, one of the registrations originally cited by
the Examining Attorney (RIPPED FEMME) is now cancelled for failure to file an
acceptable declaration of continued use under Trademark Act Section 8, 15 U.S.C.
§ 1058.12 This registration has little probative value. Made in Nature, 2022 TTAB
LEXIS 228, at *31 (“A cancelled or expired registration has no probative value other
than to show that it once issued ….”).
As to the remaining four registrations, all are use-based and each is owned by a
different owner. The Examining Attorney argues that only one of these (RIPPED AT
11 6 TTABVUE 13-14 (citing August 22, 2024 Non-Final Office Action at TSDR 8-11 and
March 10, 2025 Petition To Revive Abandoned Application at TSDR 17-24). The Examining
Attorney concedes that these marks “contain the term RIPPED or a phonetic equivalent of
RIPPED.” 8 TTABVUE 6.
12 6 TTABVUE 13 n.1.

Serial No. 98369548
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50) is for services similar in kind to Applicant’s and Registrant’s services, and this
mark contains additional wording.13 But the remaining marks cover goods and
services used in fitness training or instruction, and generally support the dictionary
definition above indicating that RIPPED has some conceptual significance in the
fitness industry. See Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1236 (Fed. Cir.
2025) (“We have held that the sixth DuPont factor does not require identical goods—
only similar ones.”); Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d
1315, 1325 (Fed. Cir. 2018) (Board must focus “on [services] shown to be similar”);
i.am.symbolic, 866 F.3d at 1328-29 (disregarding third-party registrations for other
types of goods where the proffering party had neither proven nor explained that they
were related to the goods in the cited registration).
Applicant also argues that the registrations show that “[c]onsumers clearly are
conditioned to distinguish marks that incorporate the term ‘RIPPED’ for fitness-
related goods and services on the basis of other differences in the marks.”14 This
argument seems to implicate the commercial weakness of the marks under the sixth
DuPont factor. But “[t]he probative value of third-party trademarks depends entirely
upon their usage,” and registration evidence, standing alone, has very minimal
probative value. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 1373 (Fed. Cir. 2005) (citation omitted); see also Morinaga,
2016 TTAB LEXIS 448, at *22-23 (“But Applicant’s citation of third-party
13 8 TTABVUE 6.
14 6 TTABVUE 14.

Serial No. 98369548
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registrations as evidence of market weakness is unavailing because third-party
registrations standing alone, are not evidence that the registered marks are in use
on a commercial scale, let alone that consumers have become so accustomed to seeing
them in the marketplace that they have learned to distinguish among them by minor
differences.”).
Further, other RIPPED-formative marks could indicate the possibility of co-
existence should the marks have at least “minimal differences” between them. See
Plus Prods. v. Natural Organics, Inc., 1979 TTAB LEXIS 85, at *21 (no number in
original) (“A third inference is that a number of different owners of trademarks have
believed, over a long interval of time, that various ‘PLUS’ marks can be used and
registered side by side without causing confusion or mistake provided there are
minimal differences between the marks.”), cited in Couch/Braunsdorf Affinity, Inc.
v. 12 Interactive, LLC, No. 92051006, 2014 TTAB LEXIS 95, at *58, *60 (“It is clear
from the third-party registrations that any addition to the word ‘Perks’ has been
sufficient for the Patent and Trademark Office to view these marks as being
sufficiently different from petitioner’s registered marks, and from each other, such as
not to cause confusion.”). Here, the other registered third-party marks each have
distinguishing elements – other terms and designs – whereas Applicant’s mark is
solely RIPPED with a minimal design.
In summary, there is some evidence to show that RIPPED is somewhat suggestive
in the broad physical fitness industry, but insufficient evidence to demonstrate
commercial weakness even as to that broad sector. Nonetheless, a suggestive mark is

Serial No. 98369548
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inherently distinctive and entitled to a normal scope of protection. See Dollar Fin.
Grp. v. Brittex Fin., Inc., 132 F.4th 1363, 1372 (Fed. Cir. 2025) (“[T]he fact that a
mark may be somewhat suggestive does not mean that it is a ‘weak’ mark entitled to
a limited scope of protection.”) (quoting In re Great Lakes Canning, No. 73365360,
1985 TTAB LEXIS 75, at *7). Moreover, even if we were to accept the possibility that
the cited mark is somewhat weak, even relatively weak marks are entitled to
protection against the registration by a subsequent user of an identical or near
identical mark for identical services, as we have here. See China Healthways Inst.,
Inc. v. Wang, 491 F.3d 1337, 1340 (Fed. Cir. 2007).
We find the sixth DuPont factor to be neutral and accord the mark the normal
scope of protection due an inherently distinctive mark.
E. Lack of Actual Confusion
Applicant argues that “longstanding concurrent use of Applicant’s Mark and the
Cited Mark without evidence of actual confusion” as evidence that future confusion
is unlikely.15 In particular, Applicant contends “Applicant’s Mark and the Cited Mark
have been used concurrently in connection with their respective goods [sic] since at
least January 31, 2016, the Cited Registrant’s claimed date of first use” and “[i]n 10
years, there have been no known instances of actual confusion.”16
The question of actual confusion is addressed in the factors looking at the “nature
and extent of any actual confusion” and the “length of time during and conditions
15 Id.
16 Id. at 15.

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under which there has been concurrent use without evidence of actual confusion.”
DuPont, 476 F.2d at 1361. As to the factor looking at the nature and extent of any
actual confusion, uncorroborated statements of no known instances of actual
confusion are of little evidentiary value. Majestic Distilling, 315 F.3d at 1317; see also
In re Bissett--Berman Corp., 476 F.2d 640, 642 (CCPA 1973) (self-serving testimony
of appellant’s corporate president’s unawareness of instances of actual confusion was
not conclusive that actual confusion did not exist or that there was no likelihood of
confusion).
Moreover, in the context of an ex parte appeal, there is no opportunity to hear
from the registrant about whether it is aware of any reported instances of confusion.
“The fact that an applicant in an ex parte case is unaware of any instances of actual
confusion is generally entitled to little probative weight in the likelihood of confusion
analysis, inasmuch as the Board in such cases generally has no way to know whether
the registrant likewise is unaware of any instances of actual confusion, nor is it
usually possible to determine that there has been any significant opportunity for
actual confusion to have occurred.” In re Opus One, Inc., No. 75722593, 2001 TTAB
LEXIS 707, at *19-20 (citations omitted).
In this instance, Applicant made of record written communications with the owner
of the cited mark and an unsigned draft co-existence agreement.17 During
prosecution, Applicant asserted that a “meeting of the minds” as to the agreement
had taken place, but the registrant insisted on additional monetary terms, preventing
17 October 15, 2025 Request for Reconsideration at TSDR 6-28.

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final execution of the agreement before Applicant’s filing deadline.18 Applicant also
argued that during a phone call, Registrant’s owner indicated that “both parties
should be able to move along and co-exist.”19 Applicant did not seek remand of the
appeal to enter a signed agreement into the record, and as of the time of drafting this
final opinion, no signed agreement has been submitted to the USPTO.
In its brief, Applicant argues that, although the agreement was never signed, “[a]t
no point in the parties’ correspondence did the Cited Registrant dispute that
statement [lack of actual confusion] or raise any instances of actual confusion
between Applicant’s Mark and the Cited Mark,” and this is proof of lack of actual
confusion.20 But we have not heard directly from the owner of the cited registration.
Moreover, the seventh and eighth DuPont factors are interrelated; the absence of
evidence of actual confusion under the seventh du Pont factor is entitled to little
weight in our likelihood of confusion analysis unless there also is evidence, under the
eighth factor, that there has been a significant opportunity for actual confusion to
have occurred. We must look at actual market conditions, to the extent there is
evidence of such conditions of record. In re Guild Mortg. Co., No. 86709944,
2020 TTAB LEXIS 17, at *19. Here, there is no evidence that in the actual
18 Id. at TSDR 4-5.
19 Id. at TSDR 5. We cannot consider information about a phone call based on unsupported
attorney argument. In re Ye Mystic Krewe of Gasparilla, No. 90522364, 2025 TTAB LEXIS
412, at *13-14 n.15 (citing Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018)).
The better course would have been to make information about a phone call of record by sworn
declaration. We note that there is no per se rule against consideration of hearsay in ex parte
proceedings. See, e.g., In re Epstein, 32 F.3d 1559, 1566 (Fed. Cir. 1994) (hearsay rule
inapplicable in ex parte examination).
20 6 TTABVUE 16.

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marketplace, the same consumers have been exposed to both marks for the respective
services, such that we could make a finding as to the “length of time during and
conditions under which there has been concurrent use without evidence of actual
confusion.” DuPont, 476 F.2d at 1361.
In short, we find that these facts do not support a finding that the owner of the
cited registration has admitted or believes that there is no likelihood of confusion. We
will not assume such belief or consent on registrant’s part. See In re Opus One Inc.,
No. 75722593, 2001 TTAB LEXIS 707, at *19-29 (cannot assume lack of actual
confusion based on interactions between applicant and registrant); cf. In re Ass’n of
the U.S. Army, No. 76578579, 2007 TTAB LEXIS 52, at *28-29 (facts indicated lack
of actual confusion).
The seventh and eighth DuPont factors are neutral.
F. Lack of Bad Faith
Finally, Applicant argues it “had no intent to trade upon anyone’s reputation when
it adopted its mark, including that of the Cited Registrant …. Indeed, Applicant could
not have adopted its mark with any intent to trade on any goodwill associated with
the Cited Mark because Applicant adopted Applicant’s Mark a decade before the
Cited Registrant adopted the Cited Mark.”21
21 6 TTABVUE 19. Applicant’s priority is not relevant in this ex parte proceeding. In re Calgon
Corp., 435 F.2d 596, 598 (CCPA 1971) (“As the board correctly pointed out, ‘the question of
priority of use is not germane to applicant’s right to register’ in this ex parte proceeding”)
(citation omitted). We also note that a putative claim to cancel the cited registration based
on priority and likelihood of confusion is time barred because the registration is more than
five years old. Trademark Act Section 14(3), 15 U.S.C. § 1064(3).

Serial No. 98369548
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“A party’s bad faith in adopting a mark is relevant to the thirteenth DuPont factor,
which includes any other established fact probative of the effect of use.” QuikTrip
West, Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 1036 (Fed. Cir. 2021). But although
bad faith – i.e., intent to trade on a senior user’s goodwill – tends to show that
confusion is likely, see, e.g., Jewelers Vigilance Committee, Inc. v. Ullenberg Corp.,
853 F.2d 888, 891 (Fed. Cir. 1988), the converse is not true: evidence that a party
acted in good faith in adopting a mark has little probative value. See, e.g., Leb.
Seaboard Corp. v. R & R Turf Supply, No. 91197241, 2012 TTAB LEXIS 29, at
*29 (“Good faith adoption of a mark will not prevent a finding of likelihood of
confusion.”); Mag Instrument, Inc. v. Brinkmann Corp., No. 91163534, 2010 TTAB
LEXIS 322, at *33 (evidence that a party is seeking to register a mark in good faith
does very little to obviate a finding of a likelihood of confusion and is not a significant
factor in our likelihood of confusion analysis).
The thirteenth DuPont factor is neutral.
G. Conclusion on Likelihood of Confusion
The first, second, and third DuPont factors weigh heavily in favor of likelihood of
confusion, given the substantial similarity of the marks, the in-part legal identity of
the services and overlap in channels of trade and consumers as to these services. The
sixth, seventh, eighth, and thirteenth factors are neutral. No factors weigh against
likelihood of confusion.

Serial No. 98369548
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Accordingly, we find Applicant’s mark is likely to cause
confusion with the mark GET RIPPED in Registration No. 5137759.
Decision
The refusal to register application Serial No. 98369548 is affirmed under
Trademark Act Section 2(d).