Precision Door Service SPV LLC v. We Fix It Franchise LLC

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: August 21, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Precision Door Service SPV LLC
v.
We Fix It Franchise LLC
_____
Opposition No. 91287970
_____
William M. Bryner of Kilpatrick Townsend & Stockton LLP,
for Precision Door Service SPV LLC.
Brendan M. Shortell of Lambert Shortell & Connaughton,
for We Fix It Franchise LLC.
_____
Before Heasley, Cohen and O’Connor,
Administrative Trademark Judges.
Opinion by Cohen, Administrative Trademark Judge:
Applicant We Fix It Franchise LLC seeks registration for the standard character
mark WEFIXIT GARAGE DOOR & GATE (GARAGE DOOR & GATE disclaimed)
for:
Installation, maintenance and repair of doors; Installation, maintenance and
repair of automatic doors and gates, in International Class 37.1
1 Application Serial No. 97215147 was filed January 12, 2022 based on an allegation of use
under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), claiming November 15, 2015, as both
the date of first use anywhere and the date of first use in commerce.

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Opposer Precision Door Service SPV LLC opposes registration of the mark in
Applicant’s Application under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based
on a likelihood of confusion with its registrations and alleged prior common law rights
in WE FIX GARAGE DOORS RIGHT! for a variety of goods and services including
“Installation, maintenance and repair of overhead metal and or non-metal garage
doors, their electric automatic openers and component parts thereof” in International
Class 37.2
In its Answer, Applicant denied the salient allegations of the notice of opposition.3
The case is briefed. We sustain the opposition.
I. The Record
A. Evidence and Testimony of Record
The record consists of the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of Applicant’s application. Opposer also introduced
additional evidence and testimony which we do not list here. Although Applicant
sought to introduce testimony and evidence with its trial brief (which we address
below), Applicant did not introduce any evidence or take testimony during its
testimony period but is not required to do so. Shenzhen IVPS Tech. Co. Ltd. v. Fancy
Pants Prods., LLC, No. 91263919, 2022 WL 16646840, at *2 (TTAB 2022) (“Applicant
did not take testimony or introduce any evidence during its testimony period nor file
2 1 TTABVUE 3-4, ¶¶ 2-4.
Citations to the record and briefs reference TTABVUE, the Board’s online docket system. See,
e.g., New Era Cap Co., Inc. v. Pro Era, LLC, 2020 WL 2853282, at *1 n.1 (TTAB 2020).
3 1 TTABVUE 6, ¶3; 6 TTABVUE 2, ¶3.

Opposition No. 91287970
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a brief, but it is not required to do so.”) (citing Yazhong Investing Ltd. v. Multi-Media
Tech. Ventures, Ltd., No. 92056548, 2018 WL 2113778, at *4 n.13 (TTAB 2018)).
Although we do not list the contents of the record, except as otherwise noted, the
entire record has been carefully considered and relevant evidence is discussed
throughout this opinion. See Quiktrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031,
1036 (Fed. Cir. 2021) (Board not obliged to expressly discuss every piece of evidence);
In re Miracle Tuesday LLC, 695 F.3d 1339, 1348 (Fed. Cir. 2012) (“[T]he mere fact
that the Board did not recite all of the evidence it considered does not mean the
evidence was not, in fact, reviewed.”); Plant Genetic Sys., N.V. v. DeKalb Genetics
Corp., 315 F.3d 1335, 1343 (Fed. Cir. 2003) (“We presume that a fact finder reviews
all the evidence presented unless he explicitly expresses otherwise.”).
B. Opposer’s Motion to Strike
Opposer moves to strike the exhibits attached to Applicant’s trial brief arguing
that Applicant failed to take any testimony or submit any evidence under notice of
reliance during its assigned trial period and “cannot now attempt to cure its failure
to introduce evidence during trial by attaching materials to its brief or citing
documents not in the record.”4 Specifically, Opposer seeks to strike the declaration of
Applicant’s counsel Brendan Shortell and the attached exhibits5 consisting of third-
party registrations, and “the additional documents and materials cited in Applicant’s
4 30 TTABVUE 6.
5 29 TTABVUE 23-48.

Opposition No. 91287970
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Response brief” but which were not “introduced during Applicant’s testimony period
… and were not otherwise made of record prior to filing Applicant’s Response Brief.”6
Applicant does not dispute that it failed to introduce the Shortell testimony and
evidence during trial, but asserts that:
the Motion to Strike should at least be denied in substantial part because: (1)
it improperly seeks to strike materials already made of record through
Opposer’s own Notices of Reliance and other filings; (2) at least some of the
interrogatory answers and admissions cited by Applicant are properly of
record and may be relied upon by either party under the cross-use rule, while
the remaining citations should be considered by the Board given its flexible,
merits-oriented approach to motions to strike and evidentiary matters; and
(3) many of the remaining challenged materials are publicly available printed
publications and internet materials that fall squarely within the evidentiary
categories recognized by the Board’s rules and should be considered.7
In reply, Opposer asserts that it does not dispute that materials properly made of
record by one party may be relied upon by the other and to that extent, does not seek
6 Opposer seeks to strike documents it identifies as Applicant’s Prod., WF0001, Applicant’s
Prod., WF0003, Applicant’s Prod., WF0228, Applicant’s Prod., WF0235, Applicant’s Prod.,
WF0236-WF0237, Applicant’s Prod., WF0243, Applicant’s Prod., WF0244, Applicant’s Prod.,
WF0197, Applicant’s Prod., WF0247, Applicant’s Prod., WF0248, Applicant’s Prod., WF0251,
Applicant’s Prod., WF0252, Applicant’s Prod., WF0253, Applicant’s Prod., WF0254,
Applicant’s Prod., WF0258, and Applicant’s reliance on its responses to Opposer’s
interrogatory nos. 1 and 10. 30 TTABVUE 3-4.
The parties use of their own numbering systems “made it extremely cumbersome to provide
evidentiary references for use in this [decision]; lengthening the time for review of the record,
drafting of the decision and ultimately for issuance of this opinion.” Made in Nature, LLC v.
Pharmavite LLC, No. 91223352, 2022 WL 2188890, at *8 (TTAB 2022). Rather than utilizing
the parties’ own numbering system, when referring to the record, the parties should refer to
evidence by citation to the Board’s TTABVUE docket electronic database by the entry and
page number in the .pdf version of the document (e.g., 1 TTABVUE 2) to allow the reader and
the Board to easily locate the cited material.
7 34 TTABVUE 3-4.

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to strike materials properly made of record.8
A party may introduce testimony and evidence only during its assigned testimony
period. Trademark Rule 2.121(a), 37 C.F.R. § 2.121(a) (“No testimony shall be taken
or evidence presented except during the times assigned, unless by stipulation of the
parties approved by the Board, or upon motion granted by the Board, or by order of
the Board.”). See, e.g., Baseball Am. Inc. v. Powerplay Sports, No. 91120166, 2004 WL
1942057, at *2 n.8 (TTAB 2004) (documentary evidence submitted outside assigned
testimony period given no consideration); M-Tek Inc. v. CVP Sys. Inc., No. 17044,
1990 WL 354561, at *2 (TTAB 1990) (untimely deposition stricken). Trademark Rule
2.121(a), 37 C.F.R. § 2.121(a). Applicant may not use its trial brief as a means by
which to introduce evidence. Hole In 1 Drinks, Inc. v. Lajtay, No. 92065860, 2020 WL
859853, at *2 (TTAB 2020) (“A brief may not be used as a vehicle for the introduction
of evidence.”) (quoting TBMP § 801.01)).
As there is no dispute that the Shortell declaration and attached exhibits were
untimely submitted, we grant Opposer’s motion to strike the Shortell declaration and
attached exhibits. We give no consideration to this testimony and evidence.
Opposer also objects to Applicant’s references to other materials that neither party
made of record during trial. These include publicly available Internet materials and
certain discovery responses. Any such materials that were not properly submitted as
8 36 TTABVUE 4. Specifically, Opposer has withdrawn its motion to strike documents PDS-
WFIF000007-018, 025-026, 082, 087, 158 and PDS-WFIF000144. 36 TTABVUE 3 n. 3; id. at
5 n. 4.

Opposition No. 91287970
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evidence during the trial period of the case are not before us and will not be
considered.9
Applicant submitted no evidence during trial, and any factual assertions in
Applicant’s brief unsupported by evidence will not be considered. See Cai v. Diamond
Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018) (agreeing with Board that factual
statements made in a brief are not evidence introduced at trial); see also Trademark
Rule 2.120(k)(5), 37 C.F.R. § 2.120(k)(5) (the responding party may introduce under
a notice of reliance any other answers to interrogatories, or any other admissions,
9 See, e.g., 34 TTABVUE 6 (“Applicant referenced … Opposer’s response to Applicant’s
Interrogatory No. 1, at 4. Although Opposer did not introduce these specific responses
through a notice of reliance, Applicant respectfully submits that the Board should
nonetheless consider them.”); id at 7-8 (“These materials consist of Applicant’s publicly
accessible business profiles and listings on third-party platforms, including: Applicant’s page
on Angi (WF0247); Applicant’s page on Better Business Bureau (WF0248); Applicant’s
business profile on Google (WF0251); Applicant’s page on HomeAdvisor/Google (WF0252);
Applicant’s LinkedIn page (WF0253); Applicant’s page on Nextdoor (WF0254); and
Applicant’s page on Yelp (WF0258). All are publicly available, easily verifiable from open
internet sources … [the] materials consist of self-authenticating or readily verifiable public
webpages”); 29 TTABVUE 10-11 (referencing Applicant’s Prod. WF001, WF0003, WF007
and WF008, WF0197, WF0228, WF0235-WF0237, WF0243-WF0244, WF0247-WF0248,
WF0251-WF0254, WF0258 and Applicant’s response to Opposer’s interrogatory no. 1); and
id. at 14 (“Opposer’s Objections and Responses to Applicant’s First Set of Interrogatories No.
1, at 4”); see also 16 TTABVUE 19.
To the extent Applicant seeks to have us take judicial notice of documents it relies on in its
brief and describes as “Applicant’s publicly accessible business profiles and listings on third-
party platforms,” 34 TTABVUE 7-8, these materials are unlike material the Board regularly
takes judicial notice, such as dictionary definitions and census data. See Ricardo Media Inc.
v. Inventive Software, LLC, No. 91235063, 2019 WL 3956987, at *8 n.9 (TTAB 2019); UMG
Recordings Inc. v. Mattel, Inc., No. 91176791, 2011 WL 5014005, at *12 n.12 (TTAB 2011).
The only kind of fact that may be judicially noticed by the Board is a fact that is not subject
to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction
of the trial court; or (2) can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned. Fed. R. Evid. 201(b). Applicant’s materials do not fit into
either category. They are neither generally known within the Board and as they have not
been submitted, are not capable of accurate and ready determination.

Opposition No. 91287970
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which should in fairness be considered so as to make not misleading what was offered
by the receiving or inquiring party; to do so, the responding party must explain in
writing why it needs to rely on the additional written discovery responses.).
Notwithstanding the foregoing, Applicant also refers to its response to Opposer’s
interrogatory no. 10,10 which was made of record by Opposer. Once properly made of
record, any party may rely on, for any permissible purpose, the evidence and
discovery submitted by the other party.11 Trademark Rules 2.120(k)(5), 37 C.F.R. §
2.120(k)(5); 2.120(k)(7), 37 C.F.R. § 2.120(k)(7) (“When … an answer to an
interrogatory, or an admission, or an authenticated produced document has been
made of record by one party … it may be referred to by any party for any purpose
permitted by the Federal Rules of Evidence.”); Nazon v. Ghiorse, No. 91216729, 2016
WL 3876810, at *2 n.6 (“Once evidence is properly of record, it may be relied on by
any party for any purpose.”). The motion to strike Applicant’s reliance on its response
to Opposer’s interrogatory no. 10 is denied.
II. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action is an element of the plaintiff’s case in
every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed.
10 29 TTABVUE 14; see 16 TTABVUE 22. Opposer made only certain of Applicant’s responses
to Opposer’s interrogatories of record, namely, nos. 9-13, 16.
11 Opposer quotes Beecham Inc. v. Helene Curtis Indus., Inc., 1976 WL 20985, at *1 (TTAB
1976), for the proposition that “[a]s a general rule, a party to a proceeding may not ordinarily
rely upon his own answers to his adversary's interrogatories since the said answers would be
self-serving in character.” However, in that case, the Board also noted that “where the
interrogating party chooses to make of record selected answers to some of the interrogatories,
the interrogated party should, in all fairness, be permitted to rely upon any others of its
answers which it believes necessary to bring to the attention of the tribunal for purposes of
correction, clarification, or rebuttal.” Id.

Opposition No. 91287970
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Cir. 2020). To establish entitlement to a statutory cause of action in an opposition
proceeding, an opposer must demonstrate: (i) an interest falling within the zone of
interests protected by the statute and (ii) a reasonable belief in damage proximately
caused by the registration of the mark. Id.
Opposer’s entitlement to oppose Applicant’s application on the ground of
likelihood of confusion is established by its unchallenged pleaded registrations, which
Opposer properly made of record by submitting copies of the registrations and status
and title copies in its notice of reliance.12 See Trademark Rule 2.122(d)(1)
(registration of the Opposer in a petition to cancel will be received in evidence and
made part of the record if the petition is accompanied by an original or photocopy of
the registration or by a current copy of information from the electronic database
records of the Office showing both the current status and current title); Shenzhen
IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 WL 16646840, at *6
(TTAB 2022) (valid and subsisting pleaded registration establishes opposer’s direct
commercial interest in the proceeding and its belief in damage) (citing Cunningham
v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000)).
Also, the testimony declaration of its President, Michael Brickner, who testified
that since August 1998, the WE FIX GARAGE DOORS RIGHT! marks “have been
used on and in connection with the offering of garage doors, garage door openers, and
their component part[] and accessories for sale to consumers, and providing
installation, maintenance and repair services for garage doors, garage door openers,
12 15 TTABVUE.

Opposition No. 91287970
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and garage door components,”13 is sufficient to establish that Opposer has a real
interest in this proceeding and a reasonable basis for its belief in damage. See Monster
Energy Co. v. Lo, No. 91225050, 2023 WL 417620, at *5 (TTAB 2023) (entitlement
found based on declaration of opposer’s CEO attesting to opposer’s use of allegedly
similar pleaded mark).
III. Section 2(d) Claim
A. Initial Matter
Opposer pleads ownership of two registrations. However, we focus our analysis on
Opposer’s standard character mark WE FIX GARAGE DOORS RIGHT!14 for:
“Installation, maintenance and repair of overhead metal and or non-metal
garage doors, their electric automatic openers and component parts thereof”
in International Class 37.
If we do not find a likelihood of confusion with respect to this mark and these
services, then there would be no likelihood of confusion with the mark and services
in Opposer’s other registration. 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) (citing N. Face Apparel Corp. v. Sanyang Indus. Co., No. 91187593,
2015 WL 6467820, at *7 (TTAB 2015)); In re Max Cap. Grp. Ltd., No. 77186166, 2010
WL 22358 at *2 (TTAB 2010).
13 Brickner Decl., 17 TTABVUE 3, ¶5.
14 Registration No. 2862835 (the “’835 registration or ’835 mark”) was filed July 15, 2003 and
issued July 13, 2004; it has been renewed. The ’835 registration is also registered for “Retail
store services featuring garage doors, garage door openers, component parts; franchising,
namely offering technical assistance in the establishment and/or operation of stores which
offer overhead garage door services and sales of garage door openers and component parts”
in International Class 35.

Opposition No. 91287970
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B. Priority
Applicant has not sought to counterclaim to cancel Opposer’s pleaded
registrations. Because Opposer has made its pleaded registrations of record and
shown them as valid and subsisting, priority is not an issue in this case as to the
marks and services recited in those registrations. King Candy, Inc. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 1402 (CCPA 1974).
Because we find priority based on Opposer’s pleaded registrations, we need not
separately consider Opposer’s common law rights in its WE FIX GARAGE DOORS
RIGHT! marks. See Nkanginieme v. Appleton, No. 91256464, 2023 WL 2424119, at
*3-5 (TTAB 2023) (Board did not need to consider common law priority because it
found it sufficient to rely on the pleaded registration in analyzing likelihood of
confusion).
C. Likelihood of Confusion
Trademark Act Section 2(d) prohibits the registration of a mark that:
[c]onsists of or comprises a mark which so resembles a mark registered in the
Patent and Trademark Office, or a mark or trade name previously used in the
United States . . . and not abandoned, as to be likely, when used on or in
connection with the goods of the applicant, to cause confusion, or to cause
mistake, or to deceive.
15 U.S.C. § 1052(d); see also Cunningham, 222 F.3d at 946; Life Zone Inc. v.
Middleman Grp. Inc., No. 91160999, 2008 WL 2781162, at *6 (TTAB 2008). To
determine whether there is a likelihood of confusion between marks under Section
2(d), we analyze the evidence and arguments under the factors set forth in In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). The Board

Opposition No. 91287970
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considers each factor for which there is evidence and argument. Spireon, Inc. v. Flex
Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023); In re Guild Mortg. Co., 912 F.3d 1376, 1380
(Fed. Cir. 2019). “The weight given to each factor depends on the circumstances of
each case.” In re Charger Ventures LLC, 64 F.4th 1375, 1381 (Fed. Cir. 2023) (citation
omitted); see also Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1362
(Fed. Cir. 2022) (“Not all of the … factors are necessarily relevant or of equal weight
in a given case, and any one of the factors may control a particular case.”) (cleaned
up). Typically, the factors that compare the respective marks and the goods or
services are key considerations. See, e.g., Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 1103 (CCPA 1976); In re Max Cap. Grp. Ltd., No. 77186166, 2010
WL 22358 at *1 (TTAB 2010).
1. The Services, Trade Channels and Classes of Consumers
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration...,” and the third
DuPont factor concerns the “similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 476 F.2d at 1361. We compare the services as they
are identified in the relevant registration and the application. In re Detroit Athletic
Co., 903 F.3d 1297, 1306 (Fed. Cir. 2018); Coach Servs., Inc. v. Triumph Learning
LLC, 668 F.3d 1356, 1369 (Fed. Cir. 2012).
Likelihood of confusion may be found as to each class in its entirety if it exists as
to any service in that class. Sabhnani, 2021 WL 6072822, at *9 n.17 (citations
omitted); see also Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No.
91270181, 2024 WL 1638376, at *8 n.41 (TTAB 2024) (“It is sufficient for a finding of

Opposition No. 91287970
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likelihood of confusion if relatedness is established for any item encompassed by the
identification of goods or services within a particular class in the application”).
Applicant asserts that its services are broadly identified “‘Installation,
maintenance and repair of doors; Installation, maintenance and repair of automatic
doors and gates,’ which on their face encompass a range of door and gate services and
are not limited exclusively to garage doors”;15 and that its services involve “on-site
labor, technical expertise, and service performance” whereas Opposer’s services
“primarily cover retail store services featuring garage doors….”16
Applicant’s Application includes “installation, maintenance and repair of doors;
installation, maintenance and repair of automatic doors” whereas the ’835
registration includes “installation, maintenance and repair of overhead metal and or
non-metal garage doors.” Applicant’s broadly identified installation, maintenance
and repair services for “doors”, on their face, encompass Opposer’s more narrowly
identified installation, maintenance and repair services for “garage doors.”17
15 29 TTABVUE 20.
16 Id. Applicant attempts to distinguish its services from Opposer’s services asserting that
the “analysis requires evidence showing ‘something more.” Id. “Something more” is generally
only required in the context of comparing goods versus services when the relatedness of the
goods and services is not evident, well known, or generally recognized; “something more” than
the mere fact that the goods and services are used together must be shown. In re St. Helena
Hosp., 774 F.3d 747, 754 (Fed. Cir. 2014) (explaining that the “something more” rule “has
application whenever the relatedness of the goods and services is not evident, well-known or
generally recognized”). Here, the comparison is not between goods and services; rather the
marks at issue both identify services. Thus, the “something more” requirement is not
applicable.
17 Indeed, Applicant, in response to Opposer’s requests for admission nos. 17 and 18, admits
that Opposer offers “garage door repair, maintenance and installation services under
Opposer’s Marks” and that Applicant “offers repair, maintenance and installation services
for automatic doors … under Applicant’s Mark.” 16 TTABVUE 39. Applicant also admits in

Opposition No. 91287970
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Therefore, the parties’ services are legally identical in part. See In re St. Julian Wine
Co., No. 87834973, 2020 WL 2788005, at *5 (TTAB 2020); In re Info. Builders Inc.,
No. 87753964, 2020 WL 2094122, at *4 (TTAB 2020) (finding services legally identical
in part where registrant’s services encompassed by applicant’s services); In re Hughes
Furniture Indus., Inc., No. 85627379, 2015 WL 1734918, at *3 (TTAB 2015)
(“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses
Registrant’s narrowly identified ‘residential and commercial furniture.’”).
Because the services are legally identical, we presume that the channels of trade
and classes of consumers for the identical services overlap. In re Viterra Inc., 671 F.3d
1358, 1362 (Fed. Cir. 2012) (even though there was no evidence regarding channels
of trade and classes of consumers, the Board was entitled to rely on this legal
presumption in determining likelihood of confusion); Am. Lebanese Syrian Associated
Charities Inc. v. Child Health Rsch. Inst., No. 91190361, 2011 WL 4090447, at *6
(TTAB 2011).
The legal identity of some of the services and their overlapping channels of trade
and classes of consumers not only weigh heavily in favor of finding a likelihood of
confusion but also reduce the degree of similarity between the marks necessary to
find a likelihood of confusion. Viterra, 671 F.3d at 1363; In re Mighty Leaf Tea, 601
F.3d 1342, 1348 (Fed Cir. 2010).
response to Opposer’s request for admission no. 20 that it uses its mark “in connection with
offering its repair, maintenance and installation services for garage doors. Id.

Opposition No. 91287970
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2. Strength/Weakness of Opposer’s Mark
We consider the strength or weakness of Opposer’s ’835 mark as used in
connection with the relevant services because such a determination helps inform us
as to the scope of protection. See Made in Nature, LLC v. Pharmavite LLC, No.
91223352, 2022 WL 2188890, at *11-12 (TTAB 2022) (quoting DuPont, 476 F.2d at
1361). “A well-known mark enjoys an appropriately wider latitude of legal protection,
for similar marks tend to be more readily confused with a mark that is already known
to the public.” Opryland USA Inc. v. Great Am. Music Show, Inc., 970 F.2d 847, 851
(Fed. Cir. 1992) (citation omitted).
When evaluating the strength or weakness of a mark, we look at the mark’s
inherent strength based on the nature of the term itself, and its commercial strength
in the marketplace. Spireon, 71 F.4th at 1362-63 (“Two of the DuPont factors (the
fifth and sixth) consider strength.”); In re Chippendales USA, Inc., 622 F.3d 1346,
1353-54 (Fed. Cir. 2010) (measuring both conceptual and marketplace strength); see
also Made in Nature, 2022 WL 2188890, at *11-12 (quoting DuPont, 476 F.2d at
1361); New Era Cap, 2020 WL 2853282, at *12 (“[T]he strength of a mark is not a
binary factor, but varies along a spectrum from very strong to very weak.”) (quoting
In re Coors Brewing Co., 343 F.3d 1340, 1345 (Fed. Cir. 2003)). The fifth DuPont factor
enables an Opposer to prove that its pleaded mark is entitled to an expanded scope
of protection by adducing evidence of the fame of the prior mark (sales, advertising,
length of use). By contrast, the sixth DuPont factor allows an Applicant to argue that
confusion is less likely by adducing evidence of conceptual and commercial weakness.
Spireon, 71 F.4th at 1362.

Opposition No. 91287970
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a) The Sixth DuPont Factor
“[T]he sixth DuPont factor, ‘[t]he number and nature of similar marks in use on
similar [services],’ DuPont, 476 F.2d at 1361, [ ] is a measure of the extent to which
other marks weaken the assessed mark.” Spireon, 71 F.4th at 1362 (citing Palm Bay
Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369 (Fed
Cir. 2005)). This DuPont factor allows a defendant to contract the scope of protection
of a plaintiff's mark by adducing evidence of conceptual and commercial weakness.
Applicant submitted no evidence of third-party registrations or any other evidence
of conceptual weakness of the ’835 mark that we will consider or find probative.18See
Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018) (quoting Enzo
Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney
argument is no substitute for evidence.”)). Notwithstanding, we acknowledge
18 As discussed, we do not consider Applicant’s evidence of third-party registrations attached
as exhibits to the Shortell declaration and submitted with Applicant’s brief. See Icon Health
and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017) (“Attorney argument is
not evidence.”) (citation omitted).
In its trial brief, Applicant provided a list of the registrations it attempted to introduce with
the Shortell declaration. 29 TTABVUE 17-18. Applicant’s list of registrations with
registration numbers and services does not make those registrations of record. See Edom
Labs. Inc. v. Lichter, No. 91193427, 2012 WL 1267961, at *4 (TTAB 2012). And “it is well
settled that the Board does not take judicial notice of USPTO records.” UMG Recordings,
2009 WL 4085624, at *3; see also Edom Labs., 2012 WL 1267961, at *4 (“The Board does not
take judicial notice of registrations or applications residing in the Office”). Additionally, the
list is of little, if any, probative value as we do not know whether the registrations are active,
if the marks are in continued use, current ownership of the registrations, whether the
registrations issued on the Principal Register as opposed to the Supplemental Register and
many of the marks appear to contain substantial additional matter or are for services that
have not been shown to be similar to the relevant services. See Omaha Steaks Int’l, Inc. v.
Greater Omaha Packing Co., 908 F.3d 1315, 1325 (Fed. Cir. 2018) (error to rely on third-party
evidence of similar marks for dissimilar goods, as Board must focus “on goods shown to be
similar”); Edom Labs, 2012 WL 1267961, at *4.

Opposition No. 91287970
- 16 -
Opposer’s WE FIX GARAGE DOORS RIGHT! mark may be characterized as having
some inherent weakness because it conveys the general impression of fixing garage
doors.
Because Applicant has not introduced any evidence, the scope of protection of
Opposer's mark, registered on the Principal Register without a claim of acquired
distinctiveness, has not been shown to be diminished. But, “[e]ven if Opposer’s marks
are inherently weak, that is not fatal to a finding of likelihood of confusion because
even weak marks are entitled to protection against confusion.” Made in Nature, 2022
WL 2188890, at *19; see 15 U.S.C. § 1057(b) (registration is “prima facie evidence of
the validity of the registered mark”).
We find the sixth DuPont factor is neutral.
b) Fifth DuPont Factor19
Turning to commercial strength or fame under the fifth DuPont factor, “[a] mark
with extensive public recognition and renown deserves and receives more legal
19 Applicant asserts, unsupported by the record, that its mark is registrable because the mark
has acquired distinctiveness. 29 TTABVUE 8-11; see Yamaha Int’l Corp. v. Hoshino Gakki
Co., 840 F.2d 1572, 1581 (Fed. Cir. 1988) (allegations relative to acquired distinctiveness are
not objective facts but are subject to proof in an inter partes proceeding); see also Icon Health
and Fitness, 849 F.3d at, 1043. Applicant does not clearly explain how these assertions relate
to the question of likelihood of confusion but they could be broadly construed as a claim that
Applicant’s mark is famous. Under DuPont’s fifth factor, we typically consider the “fame of
the prior mark,” which, here, is Opposer’s registered marks. See DuPont, 476 F.2d at 1361
(emphasis added). In any event, even if Applicant had established that its own mark is
famous, that alone would not support registration of the mark. That is, “fame of either mark
increases the likelihood of confusion by making it more likely that purchasers will remember
the famous mark and think of it when encountering similar [services] sold under a similar
mark. Of course, such likelihood of confusion is only a reason to refuse a new registration, not
grant one.” In re i.am.symbolic, LLC, No. 85044494, 2015 WL 6746543, at *8 n.7 (TTAB
2015), aff’d, 866 F.3d 1315, 1330 (Fed. Cir. 2017). “[W]hen confusion is likely, it is the prior
Registrant which must prevail” because the fame of an applicant’s mark does not entitle the

Opposition No. 91287970
- 17 -
protection than an obscure or weak mark.” Omaha Steaks Int’l, 908 F.3d at 1319
(quoting Kenner Parker Toys Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 353 (Fed. Cir.
1992)). Such strength rests on the extent to which “a significant portion of the
relevant consuming public … recognizes the mark as a source indicator.” Joseph
Phelps Vineyards Holdings, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1324-25
(Fec. Cir. 2017) (citing Palm Bay Imps., 396 F.3d at 1374-75). In the context of a
likelihood of confusion analysis, the commercial strength of a mark is not a binary
factor. Rather, it “varies along a spectrum from very strong to very weak.” Joseph
Phelps Vineyards, 857 F.3d at 1325 (quoting Palm Bay Imps., 396 F.3d at 1374-75).
Under the fifth factor, commercial strength or fame may be measured not only
directly by consumer surveys or declarations but also indirectly by the volume of sales
and advertising expenditures in connection with the identified goods or services sold
under the mark, and supported by other indicia such as length of time of use of the
mark; widespread critical assessments; notice by independent sources of the goods or
services identified by the marks; the general reputation of the goods or services; and
social media presence. Weider Publ’ns, LLC v. D & D Beauty Care Co., No. 91199352,
2014 WL 343269, at *6 (TTAB 2014); see also Bose Corp. v. QSC Audio Prods. Inc.,
293 F.3d 1367, 1371 (Fed. Cir. 2002) (recognizing indirect evidence as appropriate
proof of strength). Depending on the industry, some context in which to place raw
applicant to “usurp the cited Registrant’s rights in the mark.” Id. To the extent these
assertions under the fifth DuPont factor are relevant at all here, we deem it neutral.

Opposition No. 91287970
- 18 -
statistics may be necessary (e.g., the substantiality of the sales or advertising figures
for comparable types of products or services). Bose, 293 F.3d at 1375.
Opposer’s President testifies that Opposer “began using the WE FIX GARAGE
DOORS RIGHT! Marks at least as early as August 1998”;20 that “[s]ince the WE FIX
GARAGE DOORS RIGHT! Marks were adopted, the marks have been used on and in
connection with … providing installation, maintenance and repair services for garage
doors, garage door openers, and garage door components”;21 and that it uses the WE
FIX GARAGE DOORS RIGHT! marks on its websites and the social media accounts
of its franchisees and marketing and offering its relevant goods and services
throughout the U.S. through its over 100 franchisees.22
Opposer provides no evidence or information regarding the dollar amount of sales
associated with its ’835 mark. Opposer’s evidence of marketing and promotion efforts
is provided without context, such as amounts spent, market share, sales or
advertising figures for comparable types of services, or consumer exposure to enable
us to determine the extent to which Opposer’s or its franchisees’ efforts and expenses
may indicate the well-known nature of the ’835 mark and to determine whether
consumers recognize the ’835 mark. See Omaha Steaks Int’l, 908 F.3d at 1320
(quoting Bose, 293 F.3d at 1375 (“raw numbers alone in today’s world may be
misleading.”)). As explained in Omaha Steaks, “a 30-second spot commercial shown
20 Brickner declaration, 17 TTABVUE 2, ¶4.
21 Id. at 3, ¶5.
22 Id. at 3-4, ¶¶6-7.

Opposition No. 91287970
- 19 -
during a Super Bowl football game may cost a vast sum, but the expenditure may
have little if any impact on how the public reacts to the commercial message.” Id. In
short, we cannot accurately gauge Opposer’s level of success without evidence
regarding its market share, how its services rank in terms of sales in the trade, or
how much consumer exposure there has been to its advertising and promotional
efforts. See id.; In re GJ & AM, LLC, No. 86858003, 2021 WL 2374670, at *21 (TTAB
2021) (“Our precedents have long alerted practitioners to the fact that the absence of
evidence of competitive contextual information may limit the probative value that we
might otherwise accord advertising and sales numbers in the acquired distinctiveness
inquiry.”).
We find that the limited evidence discussed above does not suggest a level of
commercial success and brand recognition that would indicate Opposer’s ’835 mark
should be accorded a broader scope of legal protection under the fifth DuPont factor.
We find the fifth DuPont factor is neutral.
c) Summary
Based on the evidence as a whole, we cannot say the ’835 mark is commercially
strong. We find that the fifth DuPont factor regarding fame and commercial success
of Opposer’s WE FIX GARAGE DOORS RIGHT! marks in connection with the
relevant services is neutral. The sixth factor, the number and nature of similar marks
in use on similar services, is also neutral. We find that Opposer’s ’835 mark,
registered on the Principal Register, is entitled to the normal scope of protection
accorded registered marks. See Bell’s Brewery, Inc. v. Innovation Brewing, No.
91215896, 2017 WL 6525233, at *9 (TTAB 2017).

Opposition No. 91287970
- 20 -
3. The Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of the
marks in their entireties, considering their appearance, sound, connotation and
commercial impression. DuPont, 476 F.2d at 1361. As noted, given that some of the
relevant services, as identified, are legally identical, “the degree of similarity between
the marks necessary to support a finding of likelihood of confusion declines.” Century
21 Real Estate v. Century Life, 970 F.2d 874, 877 (Fed. Cir. 1992); see also Bridgestone
Am. Tire Operations, LLC v. Federal Corp., 673 F.3d 1330, 1337 (Fed. Cir. 2012).
“No element of a mark is ignored simply because it is less dominant, or would not
have trademark significance if used alone.” In re Electrolyte Labs. Inc., 929 F.2d 645,
647 (Fed. Cir. 1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d
1293, 1295 (CCPA 1974)). On the other hand, “there is nothing improper in stating
that, for rational reasons, more or less weight has been given to a particular feature
of a mark, provided the ultimate conclusion rests on consideration of the marks in
their entireties. Indeed, this type of analysis appears to be unavoidable.” In re Nat’l
Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985).
For ease of reference, Applicant’s mark is WEFIXIT GARAGE DOOR & GATE
(GARAGE DOOR & GATE disclaimed) and Opposer’s ’835 mark is WE FIX GARAGE
DOORS RIGHT!, both in standard characters.
Opposer argues that “the parties’ marks are extremely similar in appearance,
sound, and commercial impression because both begin with the identical terms WE

Opposition No. 91287970
- 21 -
and FIX, which dominate the structure of each mark, followed by the additional
identical wording GARAGE DOOR(S).”23
Applicant argues that its mark:
appears as a single, unified wordmark beginning with “WEFIXIT,” followed
by the phrase “GARAGE DOOR & GATE,” creating a concise and brand-like
presentation. By contrast, Opposer’s Marks consist of a multi-word phrase
ending with the emphatic term “RIGHT!” and an exclamation point, giving
the mark the cadence and tone of an advertising slogan rather than a source
identifying name, conveys the identity of a service provider, whereas
Opposer’s Marks convey a promotional claim regarding the quality of
services.24
Applicant also argues that Opposer uses its mark “as a tagline or slogan, displayed
subordinate to Opposer’s company name and primary branding ‘PRECISION
GARAGE DOOR SERVICE’, rather than a standalone service mark.”25 This
argument is unavailing. Opposer’s use of the mark “PRECISION GARAGE DOOR
SERVICE’ in connection with WE FIX GARAGE DOORS RIGHT! is irrelevant to the
likelihood of confusion analysis here because the mark applied-for is WE FIX
GARAGE DOORS RIGHT! alone. The Board must base its comparison on the marks
as set forth in the application and pleaded registrations, without regard to evidence
of actual marketplace use or variations not reflected therein. See Octocom Sys., Inc.
v. Hous. Comput. Servs., Inc. 918 F.2d 937, 942 (Fed. Cir. 1990) (likelihood of
confusion determined by marks and goods as identified in the application and
registration, not real-world conditions); In re Aquitaine Wine USA LLC, No.
23 25 TTABVUE 17.
24 29 TTABVUE 15.
25 Id.

Opposition No. 91287970
- 22 -
86928469, 2018 WL 1620989, at *4 (TTAB 2018) (“We must compare the marks as
they appear in the drawings, and not on any labels that may have additional wording
or information”) (citing In re i.am.symbolic, llc, 866 F.3d 1315, 1324 (Fed. Cir. 2017)
(“To the extent that [appellant] is advocating that we consider another mark,
will.i.am, that is not part of the applied-for mark in analyzing the similarity of the
marks, we decline to do so.”)).
At the outset, we note that Applicant’s arguments that the marks are dissimilar
assume a level of subtlety of consumer perception and retention that is inconsistent
with our working assumption, in the absence of contrary evidence, that the average
consumer “retains a general rather than specific impression of the marks,” In re
Embiid, No. 88202890, 2021 WL 2285576, at *4 (TTAB 2021) (citation omitted), and
the need to compare the marks “‘in light of the fallibility of memory’ and ‘not on the
basis of side-by-side comparison.”’ In re St. Helena Hosp., 774 F.3d 747, 751 (Fed. Cir.
2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565
F.2d 683, 685 (CCPA 1977)). The general impression of Applicant’s mark WEFIXIT
GARAGE DOOR & GATE is likely to be simply that of fixing garage doors and gates.
Likewise, the general impression of Opposer’s ’835 mark WE FIX GARAGE DOORS
RIGHT! is likely to be that of fixing garage doors. There is no evidence that when
consumers with that general impression of the ’835 mark separately encounter
Applicant’s mark, used with legally identical services, they are likely to parse the
phrases in the manner suggested by Applicant rather than simply understand the
marks as referring to fixing garage doors.

Opposition No. 91287970
- 23 -
The marks “convey similar connotations and commercial impressions,” Aquitaine
Wine, 2018 WL 1620989, at *6, because each mark conveys the general notion of
fixing garage doors. In the context of the relevant services, consumers with a general
impression of the ’835 mark could readily view Applicant’s mark as a variant of the
’835 mark reflecting a line extension of the Opposer’s services, perhaps now including
fixing gates. See, e.g., Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., No. 91197659,
2013 WL 5407313, at *10 (TTAB 2013). It is important to remember that:
The test is not whether the marks can be distinguished when subjected to a
side-by-side comparison, but rather whether the marks are sufficiently
similar in terms of their overall commercial impression that confusion as to
the source of the goods or services offered under the respective marks is likely
to result. The focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks.
Baseball Am. Inc. v. Powerplay Sports Ltd., No. 91120166, 2004 WL 1942057, at *3
(TTAB 2004); see Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No.
91270181, 2024 WL 1638376, at *5 (TTAB 2024).
With respect to appearance, “[s]ince [the cited] mark is a standard character mark,
we must consider that the . . . mark may be presented in any font style, size or color,
including the same font, size and color as the literal portions of Applicant’s mark”
because the “rights associated with a standard character mark reside in the wording
per se and not in any particular font style, size or color.” Aquitaine Wine, 2018 WL
1620989, at *5 (citing Citigroup Inc. v. Cap. City Bank Grp., 637 F.3d 1344, 1352
(Fed. Cir. 2013)). See also Viterra, 671 F.3d at 1363. Accordingly, for purposes of our
comparison of the marks in appearance, we must assume that the marks could be

Opposition No. 91287970
- 24 -
depicted in a similar manner. Aquitaine Wine, 2018 WL 1620989, at *5; see also In re
N.Y. Times Co., Ser. No. 90106071, 2023 WL 279414, at *1 n.2 (TTAB 2023).
Contrary to Applicant’s arguments, although the ’835 mark contains an
exclamation point whereas Applicant’s mark does not, such a minor difference in
punctuation does not materially distinguish the marks in either sound, appearance,
connotation or commercial impression. “Punctuation, such as quotation marks,
hyphens, periods, commas, and exclamation marks, generally does not significantly
alter the commercial impression of the mark.” Peterson v. Awshucks SC, LLC, No.
92066957, 2020 WL 7888976, at *18 (TTAB 2020); see In re St. Helena Hosp., 774 F.3d
747, 751-52 (Fed. Cir. 2014) (TAKETEN and TAKE 10! engender similar commercial
impressions despite addition of exclamation point); In re White Swan Ltd., No.
617169, 1988 WL 252416, at *1 (TTAB 1988) (when the same words are used in
marks, the presence or absence of hyphens or other punctuation marks generally will
be of little significance).
The dominant portions of the parties’ respective marks are WEFIXIT v WE FIX.26
Applicant’s mark consists of the same first two terms of Opposer’s ’835 mark but
without a space between WE and FIX. Generally, first terms in marks tend to
contribute more than terms that follow in creating a mark’s commercial impression,
especially when the following terms are disclaimed, descriptive terms, as in the case
of the terms GARAGE DOOR & GATE in Applicant’s mark. In re Detroit Athletic Co.,
26 We note that the dominant portions of the marks are followed by the nearly identical
descriptive terms GARAGE DOOR/DOORS.

Opposition No. 91287970
- 25 -
903 F.3d 1297, 1305 (Fed. Cir. 2018) ([T]he non-source identifying nature of the words
‘Co.’ and ‘Club’ and the disclaimers thereof constitute rational reasons for giving those
terms less weight in the analysis.”); In re Code Consultants, Inc., No. 75645560, 2001
WL 1149619, at *4 (TTAB 2011) (disclaimed matter is often “less significant in
creating the mark’s commercial impression”); Presto Prods., Inc. v. Nice-Pak Prods.,
Inc. no. 74797, 1988 WL 252340, at *3 (TTAB 1998) (first part of a mark “is most
likely to be impressed upon the mind of a purchaser and remembered”). Although the
marks contain additional terms, the dominant portions of the marks are similar in
sound (WE FIX v WEFIXIT). Cf. In re Bay State Brewing Co., Ser. No. 85826258,
2016 WL 1045677, at *3 (TTAB 2016) (the Board has recognized “the penchant of
consumers to shorten marks.”) (citing In re Abcor Dev. Corp., 588 F.2d 811, 815
(CCPA 1978) (“the users of language have a universal habit of shortening full names
from haste or laziness or just economy of words”) (Rich, J., concurring)).
When considered in their entireties, the marks are somewhat similar in
appearance, the dominant portions of the marks are similar in sound and the marks
are quite similar in connotation and commercial impression. “Similarity in any one
of these elements [as to appearance, sound, connotation, and commercial impression]
may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC,
No. 87075988, 2018 WL 2734893, at *13 (TTAB 2018) (internal citation omitted), aff’d
mem., 777 F. App’x 516 (Fed. Cir. 2019). Overall, the first DuPont factor weighs in
favor of finding a likelihood of confusion. See Double Coin Holdings, 2019 WL
4877349, at *9.

Opposition No. 91287970
- 26 -
4. Purchasing Care
The fourth DuPont factor relates to “conditions under which and buyers to whom
sales are made, i.e., ‘impulse’ vs careful, sophisticated purchasing.” DuPont, 476 F.2d
at 1361. Consumer sophistication, or a heightened degree of care when making a
purchasing decision, may tend to minimize likelihood of confusion. See, e.g., In re
N.A.D., Inc., 754 F.2d 996, 999-1000 (Fed. Cir. 1985) (because only sophisticated
purchasers exercising great care would purchase the relevant goods, there would be
no likelihood of confusion merely because of the similarity between the marks
NARCO and NARKOMED). Conversely, impulse purchases of inexpensive items are
likely to be made with a lesser degree of care, increasing the likelihood of consumer
confusion. Palm Bay Imps., 396 F.3d at 1376 (“Purchaser sophistication may tend to
minimize likelihood of confusion. Conversely, impulse purchases of inexpensive items
may tend to have the opposite effect.”).
Applicant asserts that its services are:
commonly purchased by commercial customers, property managers, and
construction professionals, including contractors seeking qualified
subcontractors for building projects. These purchasers routinely make
decisions concerning building infrastructure, safety, and access control as
part of their professional responsibilities, and therefore possess a higher level
of familiarity with the market, service providers, and technical considerations
involved. Homeowners may also purchase such services, but even in
residential contexts, the selection of providers for door and gate installation
or repair typically involves more deliberation than an ordinary consumer
purchase due to the functional, mechanical, and safety-related nature of the
services.
…

Opposition No. 91287970
- 27 -
As a result, purchasers are more likely to notice differences between service
providers and their respective marks, reducing the likelihood that they would
mistakenly assume a common source based on any similarity in marks.27
Opposer asserts that there is no evidence of record to support Applicant’s
assertions regarding consumer sophistication;28 that the identifications in the
application and ’835 registration do not contain any restrictions as to classes of
consumers;29 and that the relevant inquiry is not limited to the most sophisticated
purchasers who are not immune from confusion.30
The parties’ relevant services are legally identical and are unrestricted as to
quality, price or type of consumer. On their face, the services could include both
customers that are ordinary members of the public interested in garage door
installation or repair and more sophisticated commercial purchasers. See S.W.
Mgmt., Inc. v. Ocinomled, Ltd., No. 94002242, 2015 WL 4464550, at *17 (TTAB 2015)
(where the goods in an application or registration are broadly described, they are
deemed to encompass all the goods of the nature and type described therein); see also
In re Information Builders Inc., No. 87753964, 2020 WL 2094122, *5 (TTAB 2020)
(“[P]urchaser sophistication does not always result in a finding that confusion is
unlikely, especially where legally identical in part goods and services are involved
and … the marks are similar.”). We cannot say how much care a consumer may take
in finding garage door installation or repair services. It is likely that such consumers
27 29 TTABVUE 16.
28 31 TTABVUE 20.
29 Id.
30 Id. at 21.

Opposition No. 91287970
- 28 -
exercise a wide range of care, with at least some consumers exercising only an
ordinary level of care. The class of consumers seeking garage door installation or
repair is quite broad and includes consumers of all types.
Because a wide mix of consumers, with widely differing levels of sophistication
and care, use the services at issue, we cannot assume that a uniformly high degree of
care is used. When faced with such a mix of consumers, we are required to base our
decision “on the least sophisticated potential purchasers.” Stone Lion Cap. Partners,
L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014). Further, even careful or
sophisticated purchasers are not immune from source confusion. See In re Research
Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle
Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 1406 (CCPA 1970)
(“Human memories even of discriminating purchasers ... are not infallible.”)).
We find the fourth DuPont factor to be neutral.
5. Actual Confusion
The seventh and eighth DuPont factors contemplate the “[t]he nature and extent
of any actual confusion,” and “length of time during and conditions under which there
has been concurrent use without evidence of actual confusion.” DuPont, 476 F.2d at
1361.
Opposer, relying on Applicant’s response to Opposer’s interrogatory no. 10, asserts
that Applicant “admitted that on March 20th, 2024, ‘a customer called asking us if
we were ‘Precision.’ Applicant thus admitted that customers have been confused into

Opposition No. 91287970
- 29 -
believing that Applicant’s services are affiliated with Opposer’s services.”31 Applicant,
characterizing its response to Opposer’s interrogatory no. 10 differently, asserts that
“[d]espite the parties’ long period of concurrent use, no meaningful instance of actual
confusion have been identified.”32
The instance identified in Applicant’s response to Opposer’s interrogatory no. 10
does not appear to be evidence of actual confusion but rather, an inquiry about a
potential relationship with the parties. See, e.g., Couch/Braunsdorf Affinity, Inc. v.
12 Interactive, LLC, No. 92051006, 2014 WL 1390528, at *23 (TTAB 2014) (inquiry is
not evidence of confusion because the inquiry indicates that the prospective customer
had a reason to suspect that there were two different companies); Marshall Field &
Co. v. Mrs. Field’s Cookies, No. 73530088, 1992 WL 4211449, at *16 (TTAB 1992)
(inquiries indicate that the declarants were aware that there may be two different
entities); Elec. Water Conditioners, Inc. v. Turbomag Corp., 1984 WL 63085, at *4
(TTAB 1984) (“That questions have been raised as to the relationship between firms
is not evidence of actual confusion of their trademarks.”).
Even assuming, arguendo, that this single instance is evidence of actual confusion,
it is insufficient to establish a consistent cause of confusion but is, nonetheless,
illustrative of why confusion is likely. See Molenaar, Inc. v. Happy Toys Inc., 1975
31 25 TTABVUE 22; see Opposer’s interrogatory no. 10, 16 TTABVUE 22.
32 29 TTABVUE 8; see id. at 12 (“despite more than ten (10) years of concurrent use of the
parties’ marks, the record reflects only a single, isolated instance of alleged confusion.”).
Applicant’s allegation that its mark has co-existed with Opposer’s marks is without
evidentiary support and as already discussed, “[a]ttorney argument is not evidence.” Icon
Health and Fitness, 849 F.3d at 1043.

Opposition No. 91287970
- 30 -
WL 20853, at *2 (TTAB 1975) (“While a single instance is insufficient as evidence
from which to conclude that applicant’s mark has consistently caused confusion, the
single instance of confusion is at least ‘illustrative of a situation showing how and
why confusion is likely.”’) (quoting Libbey-Owens-Ford Glass Co. v. Thermoproof
Glass Co., 390 F.2d 770, 892 (CCPA 1968)). “[I]n any event, [evidence of actual
confusion] is not required in order to establish likelihood of confusion.” Time Warner
Entm’t Co. v. Jones, No. 75352605, 2002 WL 1628168, at *10 (TTAB 2002).
The seventh and eighth DuPont factors are neutral.
IV. Conclusion
The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there has been evidence and argument; to “explain the results of that
weighing”; and “the weight [we] assigned to the relevant factors.” Charger Ventures,
64 F.4th at 1384. “No mechanical rule determines likelihood of confusion, and each
case requires weighing of the facts and circumstances of the particular mark.” In re
Mighty Leaf Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010).
The legal identity of the parties’ services indicates that the second DuPont factor
weighs heavily in favor of finding a likelihood of confusion. We also determined that
the parties’ services may be rendered to the same or similar class of consumers. Thus,
the third DuPont factor weighs in favor of finding likelihood of confusion.
As to the comparison of the marks under the first DuPont factor, we found that
there are similarities between the marks in terms of appearance, sound, connotation

Opposition No. 91287970
- 31 -
and commercial impression such that this factor weighs in favor of a likelihood of
confusion.
We found that the fourth factor regarding consumer sophistication and
purchasing care, the fifth DuPont factor regarding fame and commercial success of
Opposer’s mark, the sixth factor regarding conceptual weakness, and the seventh and
eighth factors regarding instances of actual confusion are all neutral.
There are no factors that weigh against likelihood of confusion.
Balancing the factors, we find that Opposer has shown, by a preponderance of the
evidence, that confusion is likely when Opposer’s and Applicant’s marks are used
with their relevant services.
Decision: The notice of opposition is sustained.