RZT LLC

This opinion is not a
precedent of the TTAB
Mailed: October 2, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re RZT LLC
_____
Serial No. 98913556
_____
Mei Tsang, of Umberg Zipser, LLP,
for RZT LLC.
Martha Fromm, Trademark Examining Attorney, Law Office 106,
Mary Sparrow, Managing Attorney.
_____
Before Allard, Casagrande, and Brock,
Administrative Trademark Judges.
Opinion by Casagrande, Administrative Trademark Judge:
RZT LLC (Applicant) appeals the refusal of its application to register the
standard-character mark DIRDYBIRD on the Principal Register for goods identified
as “Eyewear, namely, sunglasses, sports and safety glasses and goggles,” in
International Class 9.1
1 Application Serial No. 98913556 was filed on December 19, 2024, under Section 1(a) of
the Trademark Act, 15 U.S.C. § 1051(a), and claims a date of first use anywhere and in
commerce at least as early as October 1, 2023.

Serial No. 98913556
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Registration was refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), due to likelihood of confusion with the mark DIRTYBIRD, in standard
characters, which is registered on the Principal Register for goods identified as
“sunglasses,” in International Class 9.2
Upon entry of a final refusal,3 Applicant appealed4 and requested
reconsideration.5 After the Examining Attorney denied reconsideration,6 we resumed
the appeal,7 which is now ready for decision. For the reasons explained below, we
affirm the refusal to register.
ANALYSIS
Section 2(d) of the Trademark Act prohibits registration of a mark that “so
resembles a mark registered in the Patent and Trademark Office … 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). To determine whether confusion
2 Reg. No. 7209277 issued on March 26, 2019, with a date of first use anywhere and in
commerce for sunglasses of August 31, 2016. The Office has accepted and acknowledged a
Sections 8 & 15 Combined Declaration of Continued Use and Incontestability. The
registration also identifies goods in several other International Classes that are not
implicated by this appeal.
3 See October 11, 2025, Final Office Action. Citations in this opinion to the application
record refer to the version of the documents as downloaded in .pdf format from the Trademark
Status and Document Retrieval (TSDR) database of the United States Patent and Trademark
Office (USPTO).
4 See 1 TTABVUE. References to the briefs and appeal record are to the Board’s TTABVUE
electronic docket system. The number preceding “TTABVUE” represents the docket number
assigned to the cited filing in TTABVUE, and any number immediately following
“TTABVUE” identifies any specifically cited page(s).
5 See Jan. 12, 2026, Request for Reconsideration.
6 See 4 TTABVUE.
7 See 5 TTABVUE.

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is likely, we consult the several potentially relevant factors set forth in In re E.I. du
Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973). See, e.g., In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023). Though du Pont lists thirteen
such factors, we generally address only those that are relevant and material to the
case before us. See, e.g., Shen Mfg. Co. v. Ritz Hotel, Ltd., 393 F.3d 1238, 1241 (Fed.
Cir. 2004); Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937, 943 (Fed.
Cir. 1990). Typically, those are the factors that the parties address and on which there
is relevant evidence in the record. See, e.g., Dollar Fin. Grp., Inc. v. Brittex Fin., Inc.,
132 F.4th 1363, 1371-72 (Fed. Cir. 2025); Cunningham v. Laser Golf Corp., 222 F.3d
943, 946-47 (Fed. Cir. 2000). After making findings on the relevant factors, we then
weigh them together to determine if, on balance, they indicate that confusion is likely.
See, e.g., Charger Ventures, 64 F.4th at 1381; In re Majestic Distilling Co., 315 F.3d
1311, 1319 (Fed. Cir. 2003).
A. Comparison of the goods
We’ll start with the second likelihood of confusion factor listed in du Pont: “[t]he
similarity or dissimilarity and nature of the goods or services as described in an
application or registration.” 476 F.2d at 1361. Here, the application lists “Eyewear,
namely, sunglasses, sports and safety glasses and goggles.” The cited registration
lists “sunglasses.” Sunglasses is common to both, so the goods overlap. In light of this,
the Examining Attorney points out the obvious: the goods are identical in part.8 We
agree that the goods are identical in part. “[W]hen marks would appear on virtually
8 See 8 TTABVUE 14.

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identical goods or services, the degree of similarity necessary to support a conclusion
of likely confusion declines.” In re Mighty Leaf Tea, 601 F.3d 1342, 1348 (Fed. Cir.
2010) (citation omitted); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d
874, 877 (Fed. Cir. 1992) (same); In re La Peregrina Ltd., No. 78676199, 2008 WL
695794, at *3 (TTAB 2008) (“Where, as in the present case, the marks appear in
connection with, at least in part, legally identical goods, the degree of similarity
between the marks that is necessary to support a finding of likely confusion
declines.”) (citation omitted). Thus, when we do our final weighing, this factor will
weigh in favor of a conclusion that confusion is likely.
Listing links to what Applicant says is the website associated with the mark in
the cited registration, Applicant argues that its goods are “dissimilar” to many other
goods offered on the website.9 We reject this argument. Whatever else the owner of a
registered mark sells is irrelevant. The scope of protection the Trademark Act affords
a registration is the same irrespective of what other goods a registrant may sell. The
refusal is proper if confusion is likely as to any of the goods listed in the registration.
See, e.g., In re Info. Builders Inc., No. 87753964, 2020 WL 2094122, at *3 (TTAB 2020)
(“Moreover, registration must be refused in a particular class if Applicant’s mark for
9 Even though the Examining Attorney did not object to the links, she did argue that such
extrinsic evidence about a registrant’s current business practices is improper because we
must confine our analysis to the relevant goods identified in the registration. See 8 TTABVUE
10 (citing In re Detroit Athl. Co., 903 F.3d 1297, 1307 (Fed. Cir. 2018)). We further note that
embedding hyperlinks for the first time in an appeal brief constitutes an improper attempt
to augment the record and, timeliness aside, hyperlinks themselves do not make of record
whatever contents may be available at the URL at any given time. See In re Jimenez, No.
97551823, 2025 WL 3126703, at *2 (TTAB 2025); In re Audemars Piguet Holding SA, No.
90045780, 2025 WL 21318, at *12 n.49 (TTAB 2025); In re Weiss, No. 88621608, 2024 WL
3617597, at *2 (TTAB 2024).

Serial No. 98913556
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any of its identified goods or services in that class is likely to cause confusion with
the Registrant’s mark for any of its identified goods or services.”) (citing, inter alia,
SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir. 1983)).10
Relatedly, Applicant argues that the owner of the cited registration offers only
“one style of sunglasses … to bolster its records/music production company … .”11 We
determine likelihood of confusion based on the identification of goods in the
application and cited registration. We do not consider the current business practices
of the owner of the cited registration (or the applicant), because business practices
are subject to change at the whim of the business owner. See, e.g., Fuente Mktg. Ltd.
v. Vaporous Techs., LLC, 172 F.4th 1337, 1345 (Fed. Cir. 2026); Detroit Athl., 903
F.3d at 1308; CBS Inc. v. Morrow, 708 F.2d 1579, 1581 (Fed. Cir. 1983).
That the goods identified in the application are in part identical to the goods listed
in the cited registration will weigh in favor of a conclusion that confusion is likely.
B. Comparison of the trade channels and classes of customers
The next two factors we address are very straightforward. du Pont tells us that
we must assess “[t]he similarity or dissimilarity of established, likely-to-continue
trade channels” and the “buyers to whom sales are made.” 476 F.2d at 1361. Where,
as here, the goods are identical in part and there are no restrictions in the application
and registration, we must presume that these goods travel in the same channels of
trade to the same classes of purchasers. See, e.g., Cai v. Diamond Hong, Inc., 901 F.3d
10 For this reason, we need not delve into the evidence that the Examining Attorney
submitted showing that the other goods listed in the application are related to sunglasses.
11 6 TTABVUE 7-8.

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1367, 1372 (Fed. Cir. 2018); In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012);
In re Solid State Design Inc., No. 87269041, 2018 WL 287909, at *7 (TTAB 2018).
Applicant does not address these factors. We therefore find that the sunglasses in the
application and cited registration travel in the same trade channels to the same
classes of customers. These two factors also will weigh in favor of a conclusion that
confusion is likely.
C. Comparison of the marks
We now turn to “[t]he similarity or dissimilarity of the marks in their entireties
as to appearance, sound, connotation and commercial impression.” du Pont, 476 F.2d
at 1361. Our primary reviewing court has termed this, along with the comparison of
the goods or services, a “predominant” or “fundamental” inquiry in the likelihood of
confusion analysis. Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165 (Fed.
Cir. 2002); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103
(CCPA 1976). Because people usually are exposed to marks at “spaced intervals,”
Grandpa Pidgeon’s of Mo., Inc. v. Borgsmiller, 477 F.2d 586, 587 (CCPA 1973), they
“ordinarily must depend upon their past recollection” when later exposed to a similar
mark. Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981). So,
when we compare marks, we don’t do a “side-by-side comparison,” but rather consider
the marks “in light of the fallibility of memory.” In re St. Helena Hosp., 774 F.3d 747,
751 (Fed. Cir. 2014) (citation omitted); see also Diamond Alkali Co. v. Dundee Cement
Co., 343 F.2d 781, 784 (CCPA 1965) (the test is whether confusion is likely when “the
marks are compared by separate recall later in time and removed in place”).

Serial No. 98913556
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We assess marks by looking at their “appearance, sound, connotation and
commercial impression.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
1340 (Fed. Cir. 2015) (citation omitted); accord In re i.am.symbolic, llc, 866 F.3d 1315,
1324 (Fed. Cir. 2017). Similarity in all aspects is not required, however. This factor
supports refusal “if the similarity in either form, spelling or sound alone is likely to
cause confusion.” Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA
1968) (citation omitted); see also Hancock v. Am. Steel & Wire Co., 203 F.2d 737, 740
(CCPA 1953) (“it is proper to consider [the marks’] appearance, sound and meaning
… but a combination of all three factors need not necessarily exist”) (cleaned up;
citations omitted).
“Similarity is not a binary factor but is a matter of degree.” St. Helena Hosp., 774
F.3d at 752 (citation omitted). “The proper test is … 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.”
i.am.symbolic, 866 F.3d at 1323 (citation omitted); see also Phillips Petroleum Co. v.
Knox Indus. Corp., 277 F.2d 945, 947 (CCPA 1960) (“The issue is whether the marks
are confusingly similar, not whether they are identical.”) (citation omitted).
Applicant’s mark is DIRDYBIRD; the registered mark DIRTYBIRD. Applicant
argues, incongruously, that “[t]he visual differences between Applicant’s mark and
the cited marks [sic] are both obvious and numerous.”12 The only difference Applicant
12 6 TTABVUE 6.

Serial No. 98913556
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points to is the only one that exists: the fourth letter. While this makes the marks
nonidentical, it’s a minor difference. We find that the marks look very similar.
Applicant also argues that the meaning or connotation of the marks “is quite
different.” According to Applicant, its mark “connotes the feeling of a bird that is
sturdy … .”13 Applicant cites no evidence of this. And we don’t see it. (Perhaps that
would be the case if Applicant’s mark were STIRDYBIRD or STURDYBIRD.) To our
eyes, consumers will perceive DIRDYBIRD simply as a slight misspelling of
DIRTYBIRD. See, e.g., St. Helena Hosp., 774 F.3d at 750-51 (rejecting argument that
TAKETEN and TAKE 10! are dissimilar, saying “the differences in appearance are
minimal”); Contour Chair-Lounge Co. v. Englander Co., 324 F.2d 186, 189 (CCPA
1963) (finding “‘Contur’ but a slight misspelling of ‘Contour,’” Court held that
confusion was likely as between CONTURFOAM for mattresses and box springs and
CONTOUR for chairs); Nat’l Mineral Co. v. Norwich Pharmacal Co., 183 F.2d 119,
120 (CCPA 1950) (“That the marks [Swav and Suave] are alike in meaning we think
is clear, both indicating smoothness, sleekness and good grooming. Therefore, as far
as the similarity between the marks is concerned, we deem that in sound and
meaning they are not, in a trade-mark registration sense, legally distinguishable.”).
We find that the marks’ meanings are identical.
Applicant’s main argument is that “the sounds of the marks in their entireties are
vastly different.”14 It says “Applicant’s mark starts with the sound ‘de’ and
13 Id. at 7. Applicant does not argue that DIRTYBIRD means anything other than what a
combination of the everyday English words DIRTY and BIRD would connote.
14 6 TTABVUE 6.

Serial No. 98913556
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Registrant’s mark starts with the sound ‘te’.”15 (We take this to mean, not that the
marks “start” with those respective sounds, but that their respective second syllables
have those sounds.) Applicant, however, cites no evidence in the record in support of
its asserted pronunciations. In response, the Examining Attorney points to evidence
that speakers of American English frequently pronounce the “d” and “t” sounds
similarly, using what’s termed a “flap” or “tap” sound.16 One of the examples where
Americans frequently use this “tap” or “flap” sound is the word “dirty.”17 Based on
this evidence, and in the absence of evidence to the contrary, we find that speakers
of American English will pronounce these marks similarly. See, e.g., StonCor Grp.,
Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 1331-32 (Fed. Cir. 2014) (“Where a
trademark is not a recognized word and the weight of the evidence suggests that
potential consumers would pronounce the mark in a particular way, it is error for the
Board to ignore this evidence entirely and supply its own pronunciation.”) (citation
omitted).
In sum, we find that the marks have the same meaning or connotation to
consumers, and that their respective appearances and pronunciations are very
similar. Overall, the marks are at least highly similar and very nearly identical.
When we perform the final weighing of the relevant factors, this factor will count in
favor of a conclusion that confusion is likely.
15 Id. at 6-7.
16 8 TTABVUE (citing evidence attached to Feb. 17, 2026, Denial of Reconsideration, at
TSDR 5-18).
17 See Feb. 17, 2026, Denial of Reconsideration, at TSDR 8.

Serial No. 98913556
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D. The conditions under which sales are made
du Pont also lists “[t]he conditions under which … sales are made, i. e. “impulse”
vs. careful, sophisticated purchasing.” 476 F.2d at 1361. Referring to this factor,
Applicant makes a number of arguments. It argues that people who buy its
sunglasses are “highly educated,” buy Applicant’s sunglasses with specific sports in
mind, giving their purchases of Applicant’s sunglasses “careful consideration.”18
Applicant says its “consumers need to contact Applicant and the process has to be
discussed. Each project is unique and takes a team of sophisticated technicians to
execute.”19 In contrast, says Applicant, sunglasses sold under the cited mark are
intended for the “general public” and are just “regular sunglasses.”20 Turning to price,
Applicant argues that sunglasses under the cited mark “are only $35 per pair,” while
its sunglasses are “much more expensive and generally in a higher price bracket.”21
All of these arguments run counter to the identification of relevant goods in the
application and cited registration which, pertinently, are just “sunglasses,” with no
restrictions on price, trade channels, or anything else. We’re not concerned here with
the other goods listed in the application (i.e., “sports and safety glasses and goggles”).
Sunglasses are a mass consumer item, sold to the general public. So, Applicant’s
unsupported characterizations that its, as opposed to others’, sunglasses customers
are sophisticated, or of the allegedly unique purposes to which its customers put their
18 6 TTABVUE 8-9.
19 Id. at 9.
20 Id.
21 Id.

Serial No. 98913556
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sunglasses, are irrelevant.22 See, e.g., Can. Imperial Bank of Com. v. Wells Fargo
Bank, Nat’l Ass’n, 811 F.2d 1490, 1492-93 (Fed. Cir. 1987); In re Hughes Furniture
Indus., Inc., No. 85627379, 2015 WL 1734918, at *4 (TTAB 2015); L’Oreal S.A. v.
Marcon, No. 91184456, 2012 WL 1267956, at *9 (TTAB 2012). Same with Applicant’s
characterizations of the relative prices of the sunglasses products. See, e.g., Palm Bay
Imports, Inc. v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 1376 (Fed. Cir. 2005); In re
Aquitaine Wine USA, LLC, No. 86928469, 2018 WL 1620989, at *9 (TTAB 2018);
L’Oreal, 2012 WL 1267956, at *9. When we look at purchaser sophistication and care,
we must keep in mind “the least sophisticated potential purchasers” of the item
(sunglasses). See, e.g., Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d
1317, 1323 (Fed. Cir. 2014).
We find this factor to be neutral.
E. The number and nature of similar marks in use on similar goods
Listing a host of registrations for marks consisting of or containing “DIRTY BIRD”
or some variant, Applicant argues that the cited mark is “diluted.”23 We assess
arguments that a cited mark is weak under the sixth factor in du Pont. See Spireon,
22 We note that, during prosecution, Applicant appended a few screenshots from its website
and that they seem to contradict Applicant’s assertions on appeal. For example, the webpages
say that Applicant’s sunglasses are “perfect … for everyday use,” Jan. 12, 2026, Request for
Reconsideration, at TSDR 112, which contradicts Applicant’s assertion that its sunglasses
are purchased for use in specific sports. And the webpage indicates that they can be
purchased simply by clicking the “cart” icon, see id. at 113-18, which is at odds with
Applicant’s unsupported assertion that “[t]o purchase Applicant’s goods, the consumers need
to contact Applicant and the process has to be discussed [and] takes a team of sophisticated
technicians to execute.”
23 6 TTABVUE 9.

Serial No. 98913556
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Inc. v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023) (citing du Pont, 476 F.2d at
1361). In Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315 (Fed.
Cir. 2018), the Federal Circuit explained that:
[t]he 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. Third-party use is relevant to show that
a mark is relatively weak and entitled to only a narrow scope
of protection.
Id. at 1324 (cleaned up; citations omitted).
Importantly, du Pont tells us that the allegedly similar marks must be “in use on
similar goods.” 476 F.2d at 1361 (emphasis added). Omaha Steaks elaborated on
this point:
[T]he real world segment of the public is limited to the market
or universe necessary to circumscribe purchasers or users of
products or services like those being offered by the parties
under a common mark. Such limits are important to the
rationale underlying this factor. Only if other offerings under
the common mark are also directed to that relevant public is
it reasonable to infer that they may have become conditioned
to draw fine lines between sources of related goods or services.
908 F.3d at 1325 (citing Nat’l Cable Tel. Ass’n v. Am. Cinema Editors, Inc., 937 F.2d
1572, 1579 (Fed. Cir. 1991)) (internal quotation marks omitted).
And this is the point on which Applicant’s argument founders. Here, we’re
focusing on the market for sunglasses. But Applicant directs us to no evidence of these
DIRTY BIRD marks (or variants) for sunglasses or any other type of eyewear or
optical products. And so far as we can discern, there are none in the record (except

Serial No. 98913556
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for the cited registration).24 With no evidentiary basis to find the mark in the cited
registration weak as to sunglasses, we find this factor neutral.
F. The asserted lack of instances of actual confusion
Evidence of actual consumer confusion is not required in determining likelihood
of confusion, see, e.g., i.am.symbolic, 866 F.3d at 1328, and the lack of such evidence
“does not preclude a finding of likelihood of confusion,” In re Calgon Corp., 435 F.2d
596, 597 (CCPA 1971) (citations omitted). However, “[t]he length of time during and
conditions under which there has been concurrent use without evidence of actual
confusion” can be a relevant consideration. du Pont, 476 F.2d at 1371. Here, Applicant
asserts that “[t]he marks have co-existed for almost 2 years and Applicant has
encountered no actual instances of confusion among consumers.”25
Significantly, du Pont prefaces its list of factors with the statement: “the following,
when of record, must be considered ….” Id. (emphasis added). While Applicant’s
brief says that there is no evidence of actual confusion, a statement in a brief is not
itself evidence. In Simulations Publ’ns, 521 F.2d 797, 798 (CCPA 1975); see also In re
Nat’l Distillers & Chem. Corp., 297 F.2d 941, 944-45 (CCPA 1962) (“statements made
over the signature of counsel are not evidence of the facts averred”). There is, for
example, no declaration in the record attesting to Applicant’s lack of knowledge of
any instances of actual confusion or any other evidence on this point.26
24 See Jan. 12, 2026, Request for Reconsideration, at TSDR 24-97.
25 6 TTABVUE 8.
26 The likelihood-of-confusion factors present us with questions of fact upon which we make
factual findings. See, e.g., Bullshine Distillery LLC v. Sazerac Brands, LLC, 130 F.4th 1025,
1031 (Fed. Cir. 2025) (“Each of the DuPont factors presents a question of fact.”) (citation

Serial No. 98913556
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Further, as to the length of time of concurrent use, Applicant points only to the
dates of use claimed in its application and the cited registration but provides no
evidence of the length of use of either its mark or that of the owner of the cited
registration. Applicant cannot simply rely on the date of first use it set forth in the
application or registration to prove concurrent use. See Trademark Rule 2.122(b)(2),
37 C.F.R. § 2.122(b)(2) (“The allegation in an application for registration, or in a
registration, of a date of use is not evidence on behalf of the applicant or registrant;
a date of use of a mark must be established by competent evidence.”).
Even if Applicant had placed probative evidence in the record, we’d still be getting
only half the story, because the owner of the cited registration is not a party to this
case. See, e.g., In re Guild Mortg. Co., No. 86709944, 2020 WL 1639916, at *9 (TTAB
2020); In re Inspection Tech. Inc., No. 73287613, 1984 WL 62802, at *2 (TTAB 1984).27
We find nothing that persuades us that this factor should be anything but neutral.
omitted). We can’t make a finding of fact on a likelihood-of-confusion factor without evidence
upon which to base the finding. Cf. In re Zurko, 258 F.3d 1379, 1386 (Fed. Cir. 2001) (“With
respect to core factual findings in a determination of patentability, however, the [Patent]
Board cannot simply reach conclusions based on its own understanding or experience—or on
its assessment of what would be basic knowledge or common sense. Rather, the Board must
point to some concrete evidence in the record in support of these findings.”).
27 In addition, we don’t require USPTO examining attorneys to try to determine if actual
confusion has taken place. See Inspection Tech., 1984 WL 62802, at *2 (“Moreover, for the
Examining Attorney to attempt to show actual confusion … would be an impossible
undertaking.”); see generally In re Pacer Tech., 338 F.3d 1348, 1352 (Fed. Cir. 2003) (the
USPTO “is an agency of limited resources” and “cannot be expected to shoulder the burden
of conducting market research”) (citations omitted).

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G. The extent of potential confusion
Finally, Applicant invokes the twelfth likelihood-of-confusion factor: “[t]he extent
of potential confusion, i. e., whether de minimis or substantial.” du Pont, 476 F.2d at
1361. Applicant’s argument here simply re-hashes its arguments on the other
factors,28 all of which we’ve found unpersuasive. Repackaging unpersuasive
arguments in twelfth-factor clothing doesn’t add anything to Applicant’s
presentation. This factor is neutral.
H. Conclusion as to whether confusion is likely
Having made findings on the relevant likelihood-of-confusion factors, our final
step is to assess these findings together to determine if, on balance, they indicate that
confusion is likely. See, e.g., Charger Ventures, 64 F.4th at 1384. Because the factors
may interact with one another, the weight each factor is given depends on the overall
circumstances in the case. See id. at 1381; In re Shell Oil Co., 992 F.2d 1204, 1206
(Fed. Cir. 1993). It’s not a “simple tally of factors.” Swagway, LLC v. ITC, 934 F.3d
1332, 1340 (Fed. Cir. 2019); accord Citigroup Inc. v. Cap. City Bank Grp., Inc., 637
F.3d 1344, 1356 (Fed. Cir. 2011).
We found the goods to be identical in part (sunglasses). This is not only an
important factor by itself, see, e.g., Pink Lady Corp. v. L.N. Renault & Sons, Inc., 265
F.2d 951, 953 (CCPA 1959) (similarity or dissimilarity of the goods “is logically a
factor of considerable importance to be given much weight in reaching the ultimate
28 6 TTABVUE 12.

Serial No. 98913556
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conclusion”) (citation omitted), but it also affects how we assess the similarities and
dissimilarities in the marks: “When marks would appear on virtually identical goods
or services, the degree of similarity necessary to support a conclusion of likely
confusion declines.” Century 21, 970 F.2d at 877; accord Viterra, 671 F.3d at 1363;
Mighty Leaf, 601 F.3d at 1348.
We also found that the channels of trade and classes of customers are identical.
So, these two factors add more weight in favor of a conclusion that confusion is likely.
The comparison of the marks, of course, is a “predominant” factor in the weighing.
See, e.g., Herbko Int’l, 308 F.3d at 1165; Hewlett-Packard Co. v. Packard Press, Inc.,
281 F.3d 1261, 1265 (Fed. Cir. 2002); see also Federated Foods, 544 F.2d at 1103 (“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.”). Here, we
found the marks to be very nearly identical and at least highly similar.
The other four factors on which Applicant presented arguments are all neutral.
With four factors indicating confusion is likely and none weighing in favor of the
opposite conclusion, we have no difficulty concluding that confusion is likely.
Decision: The refusal to register Applicant’s mark is affirmed.