Sferra Fine Linens, LLC v. Sfera Joven S.a.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SFERRA FINE LINENS, LLC,
Appellant
v.
SFERA JOVEN S.A.,
Appellee
______________________
2023-2198
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
91226943.
______________________
Decided: May 19, 2025
______________________
P HILIP BAUTISTA, Taft Stettinius & Hollister LLP,
Cleveland, OH, argued for appellant. Also represented by
J OZEFF W. G EBOLYS .
SAMUEL F. P AMIAS , Hoglund & Pamias, P.S.C., San
Juan, PR, argued for appellee.
______________________
Before L OURIE, CHEN, and HUGHES , Circuit Judges.
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 2
CHEN, Circuit Judge.
Sferra Fine Linens, LLC (Opposer) appeals from a
Trademark Trial and Appeal Board (Board) decision dis-
missing its opposition to a trademark application filed by
Sfera Joven S.A. (Applicant). Sferra Fine Linens, LLC v.
Sfera Joven S.A., No. 91226943, 2023 WL 3561719
(T.T.A.B. May 18, 2023) (Decision). The Board determined
that Opposer failed to show, by a preponderance of the ev-
idence, the existence of a likelihood of confusion between
Applicant’s mark and Opposer’s marks. Id. at *9. For the
following reasons, we vacate and remand.
BACKGROUND
Applicant filed an intent-to-use trademark application
(U.S. Trademark Application Serial No. 86/478809) on De-
cember 12, 2014, for registration on the Principal Register
of the stylized mark:
J.A. 51–571 Applicant explained in its application that
“[t]he mark consists of the word Sfera written between pa-
rentheses, the left parenthesis appearing slightly above
and the right parenthesis slightly below the word.” J.A. 55.
Applicant represented that it “has a bona fide intention
to use the mark in commerce on or in connection with” the
following goods: “[p]erfumery, namely, perfume, toilet
1 Applicant filed under Section 44(e) of the Lanham
Act, 15 U.S.C. § 1126(e), which is available for foreign ap-
plicants relying on ownership of foreign registrations as a
basis for registration in the United States. Applicant’s
mark is based on European Union Registration No.
4563541. See J.A. 51–53.
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 3
water, scented water, cologne, essential oils for personal
use, cosmetics, namely, body, face and skin moisturizing
creams, lotions and tonics,” in International Class 3;
“[l]eather handbags, imitation leather sold in bulk; umbrel-
las, parasols, walking sticks, whips and harness; billfolds
and wallets made of leather,” in International Class 18;
and “[c]lothing, namely, suits, coats, raincoats, pants,
dresses, shirts, sweaters, stocking, scarves, shoes, slippers,
boots; gloves and hats,” in International Class 25. J.A. 55–
56. In October 2015, the United States Patent and Trade-
mark Office issued a Notice of Publication for Applicant’s
mark, and the mark was published in the Trademark Offi-
cial Gazette in November 2015. J.A. 21.
Opposer filed a Notice of Opposition in March 2016, al-
leging, among other grounds, a likelihood of confusion be-
tween its marks and Applicant’s mark under Section 2(d)
of the Lanham Act, 15 U.S.C. § 1052(d). J.A. 68–70. Op-
poser has applied for and maintained registration of two
marks on the Principal Register—SFERRA2 and SFERRA
BROS.3—both for “table linen; table linen, namely, table-
cloths not of paper, coasters, table mats not of paper, nap-
kins, placemats, table runners; bed linen, bed sheets,
bedspreads, pillow cases, pillow covers, pillow shams, du-
vet covers, blankets, throws, lap robes; baby blankets, baby
bed linens, baby quilts, shams; guest towels, bath towels,
hand towels, washcloths and bath sheets,” in International
Class 24. J.A. 69 (capitalization removed).
The Board evaluated the likelihood of confusion be-
tween Opposer’s and Applicant’s marks using the factors
set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d
1357, 1361 (CCPA 1973). See Decision, 2023 WL 3561719,
2 U.S. Registration No. 3205168, issued on February
6, 2007.
3 U.S. Registration No. 3012913, issued on Novem-
ber 8, 2005.
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 4
at *3–9. Ultimately, the Board determined that
“[a]lthough the marks are similar and Opposer’s pleaded
mark[s] enjoy[] some commercial strength, Opposer has
not shown that the goods are related, or that they travel in
the same channels of trade to the same classes of consum-
ers, and this failure is dispositive.” Id. at *9. Accordingly,
the Board dismissed the opposition. Id.
Opposer timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(4)(B).
D ISCUSSION
Section 2(d) of the Lanham Act prohibits the registra-
tion of a mark on the Principal Register if it is “likely, when
used on or in connection with the goods of the applicant, to
cause confusion” with another registered mark. 15 U.S.C.
§ 1052(d). “Likelihood of confusion is a question of law
based on underlying factual findings regarding the DuPont
factors.” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362
(Fed. Cir. 2023). “We review the Board’s legal conclusions
de novo and factual findings for substantial evidence.” Id.
We also accord de novo review to the weight given to each
DuPont factor. Swagway, LLC v. ITC, 934 F.3d 1332, 1338
(Fed. Cir. 2019).
On appeal, Opposer challenges the Board’s weighing of
the similarity of the marks (Dupont factor one) and the
Board’s factual findings related to: similarity of the goods
(DuPont factor two); similarity of trade channels (DuPont
factor three); consumer sophistication (Dupont factor four);
and strength of Opposer’s marks (Dupont factor five). We
address each challenge in turn.
I. DuPont Factor One
The first DuPont factor concerns “[t]he similarity or
dissimilarity of the marks in their entireties as to appear-
ance, sound, connotation and commercial impression.”
DuPont, 476 F.2d at 1361. The Board found that the marks
“are more similar than dissimilar” and determined that
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 5
this factor “weighs in favor of a likelihood of confusion find-
ing.” Decision, 2023 WL 3561719, at *6–7.
Opposer does not challenge the Board’s underlying fac-
tual findings, but instead challenges the weight accorded
to this factor. Relying on Naterra International v. Ben-
salem, 92 F.4th 1113, 1119 (Fed. Cir. 2024), Opposer ar-
gues that the Board should have weighed this factor
“heavily” in favor of a likelihood of confusion. Appellant’s
Reply Br. 23. In Naterra, the Board, in an opposition pro-
ceeding, found the relevant marks BABY MAGIC and
BABIES’ MAGIC TEA “more similar than dissimilar.” 92
F.4th at 1119 (citation omitted). The Board in Naterra
found that “the first two words of [the] BABIES’ MAGIC
mark and the entirety of [the] BABY MAGIC mark look
and sound almost the same and have the same connotation
and commercial impression.” Id. (alterations in original).
Due to the similarity of the marks, we determined that
“[t]he Board erred in failing to weigh the first DuPont fac-
tor heavily in favor of a likelihood of confusion finding.” Id.
(emphasis added).
Here, the Board likewise found the marks “more simi-
lar than dissimilar.” Decision, 2023 WL 3561719, at *6.
The Board noted that the “only difference between Op-
poser’s mark and the literal element of Applicant’s mark is
that Applicant’s mark is spelled with one ‘r’ while Op-
poser’s is spelled with two,” and that this similarity would
cause the marks “to be pronounced similarly or identi-
cally.” Id. The Board acknowledged that the marks “will
convey different meanings, at least to some Spanish speak-
ing United States consumers,” but that this difference is
outweighed by the “similarities in appearance and sound.”
Id. at *7. Based on these findings, in view of Naterra, we
agree with Opposer that the first DuPont weighs heavily in
favor of a likelihood of confusion.
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 6
II. DuPont Factor Two
The second DuPont factor considers “[t]he similarity or
dissimilarity and nature of the goods or services as de-
scribed in an application or registration or in connection
with which a prior mark is in use.” DuPont, 476 F.2d at
1361. When analyzing the similarity of the goods, “it is not
necessary that the products of the parties be similar or
even competitive to support a finding of likelihood of con-
fusion.” Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 1369 (Fed. Cir. 2012) (citation omitted). Rather,
“likelihood of confusion can be found ‘if the respective prod-
ucts are related in some manner and/or if the circum-
stances surrounding their marketing are such that they
could give rise to the mistaken belief that they emanate
from the same source.’” Id. (citation omitted). For exam-
ple, “additional evidence, such as whether a single com-
pany sells the goods and services of both parties, if
presented, is relevant to a relatedness analysis.” Hewlett-
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267
(Fed. Cir. 2002).
The Board determined that this factor “weigh[s] heav-
ily against finding a likelihood of confusion.”4 Decision,
2023 WL 3561719, at *9. Regarding Opposer’s registered
goods, the Board found that “Opposer has failed to intro-
duce any evidence that the goods are related” to the goods
in Applicant’s application, “or that they are marketed in a
manner that could give rise to the mistaken belief that they
emanate from the same source.” Id. at *8. Separately, the
Board noted that Opposer introduced evidence of using its
mark for goods not listed in its registrations—bathrobes,
4 The Board addressed similarity of the goods
(DuPont factor two) and the similarity of trade channels
(DuPont factor three) together. See Decision, 2023 WL
3561719, at *7–9. In this opinion, we address them sepa-
rately.
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 7
scarves, diffusers, and candles—but dismissed this evi-
dence as unproven “common law” usage. Id. at *9.
Opposer contends that it introduced evidence of its
non-registered goods not to establish common law usage,
but instead to show that Applicant and Opposer “sell goods
in the same general field or industry” and that the “parties’
goods have been shown to be available from one source,”
namely, Opposer. Appellant’s Br. 22–23. Opposer’s Presi-
dent and Chief Executive Officer and Opposer’s Vice Pres-
ident, Secretary, and General Counsel both testified that
Opposer offers scarves for sale, which are expressly listed
in Applicant’s application, along with other goods similar
to those listed in the application, including bathrobes, dif-
fusers, and candles. See J.A. 101–02 ¶ 23 (citing J.A. 404–
05 (scarves); J.A. 355 (bathrobes); J.A. 460–61 (diffusers
and candles)); J.A. 112–13 ¶ 23 (same).
The Board erred by failing to consider that Opposer
“sells the goods . . . of both parties,” which “is relevant to a
relatedness analysis.” Hewlett-Packard, 281 F.3d at 1267;
see also Recot, Inc. v. Becton, 214 F.3d 1322, 1328–29 (Fed.
Cir. 2000) (holding that the Board erred in declining to con-
sider lay evidence that companies sell the goods of both
parties); Naterra, 92 F.4th at 1117. On remand, the Board
should properly evaluate the evidence that Opposer has in-
troduced in support of its argument that a single company
(i.e., Opposer) sells the relevant goods of both parties (i.e.,
the goods set forth in the application and registrations) in
considering whether the relevant consumer could mistak-
enly believe that the goods emanate from the same source.
Furthermore, although none of the goods listed in the ap-
plication and registrations are identical, the Board should
still compare the goods and consider whether they are re-
lated. See Hewlett-Packard, 281 F.3d at 1267 (holding that
the Board must compare the goods and services listed in
the relevant application and registrations even without ad-
ditional evidence).
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 8
III. DuPont Factor Three
The third DuPont factor considers “[t]he similarity or
dissimilarity of established, likely-to-continue trade chan-
nels.” DuPont, 476 F.2d at 1361. We look to the application
and registrations to identify the applicable channels of
trade. Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367,
1377 (Fed. Cir. 2002). Here, neither the application nor the
registrations contain any trade or consumer channel re-
strictions. See J.A. 55–56; J.A. 68–70. We have explained
that “[i]n the absence of meaningful limitations in either
the application or the cited registrations,” it is “presumed
that the goods travel through all usual channels of trade
and are offered to all normal potential purchasers.” In re
i.am.symbolic, llc, 866 F.3d 1315, 1327 (Fed. Cir. 2017).
Opposer argues that the Board erred in failing to apply
this presumption. Appellant’s Br. 33. We disagree. The
Board recognized the presumption but found that “Opposer
[did] not provide[] any evidence regarding the ‘normal’
channels of trade for Applicant’s identified goods in the
United States.” Decision, 2023 WL 3561719, at *8 (citation
omitted); see Inter IKEA Sys. B.V. v. Akea, LLC, 110
U.S.P.Q.2d (BNA) 1734, 1743 (T.T.A.B. 2014) (“[W]hen the
dispute involves the comparison of different goods or ser-
vices, this principle does not help the party asserting a like-
lihood of confusion unless there is further evidence that
would permit a comparison of the normal trade channels
for the parties’ respective goods or se[r]vices.”).
The only evidence Opposer presented regarding the
trade channels of Applicant’s goods was that Applicant
sells its goods in department stores and online outside of
the United States. See J.A. 102–03 ¶¶ 26, 29. Opposer did
not explain, however, how this evidence bears on the nor-
mal and usual trade channels for the same goods within
the United States. In other words, the Board reasonably
concluded that Opposer’s trade-channels argument was
not adequately developed. See Johnson & Johnson v. Salve
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 9
S.A., 183 U.S.P.Q. (BNA) 375, 377 (T.T.A.B. 1974)
(“[O]pposer-petitioner is advised that the issue of likeli-
hood of confusion is determined on the basis of circum-
stances surrounding use of involved marks in the United
States; that is, use in commerce which may lawfully be reg-
ulated by Congress.”); Double J of Broward Inc. v. Skalony
Sportswear GmbH, 21 U.S.P.Q.2d (BNA) 1609, 1612
(T.T.A.B. 1991) (“Information concerning applicant’s for-
eign activities . . . is not relevant to the issues in an oppo-
sition proceeding.”).
Opposer asserts that “[b]oth the Board and this Court
recognize that evidence of a party’s sales outside of the
United States, such as internet sales or retail sales, can be
considered for a likelihood of confusion analysis.” Appel-
lant’s Br. 28 (emphasis added). As support, Opposer relies
on In re Bayer Aktiengesellschaft, 488 F.3d 960, 969 (Fed.
Cir. 2007). But In re Bayer addressed whether a term was
descriptive under Section 2(e)(1) of the Lanham Act, ex-
plaining that “[i]nformation originating on foreign websites
or in foreign news publications that are accessible to the
United States public may be relevant to discern United
States consumer impression of a proposed mark.” Id. We
do not agree with Opposer that the narrow use of foreign
evidence in In re Bayer is relevant to the comparison of
trade channels in the United States under Section 2(d).
Accordingly, the Board reasonably found the foreign
trade channels evidence, without more, insufficient for es-
tablishing the normal and usual trade channels for Appli-
cant’s goods in the United States.
IV. DuPont Factor Four
The fourth DuPont factor considers “[t]he conditions
under which and buyers to whom sales are made, i.e. ‘im-
pulse’ vs. careful, sophisticated purchasing.” DuPont, 476
F.2d at 1361. “When products are relatively low-priced and
subject to impulse buying, the risk of likelihood of confu-
sion is increased because purchasers of such products are
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 10
held to a lesser standard of purchasing care.” Recot, 214
F.3d at 1329.
The Board determined this factor to be “neutral.” De-
cision, 2023 WL 3561719, at *9. The factual findings un-
derlying that determination are supported by substantial
evidence. The Board acknowledged that the goods identi-
fied in Opposer’s registrations “could encompass basic, in-
expensive linens, as well as luxury linens.” Id.
Opposer argues that this factor “weighs in favor of a
likelihood of confusion finding.” Appellant’s Br. 39. Spe-
cifically, Opposer claims that the Board “conceded” that the
parties share consumers of “basic, inexpensive” goods. Id.
at 38 (citation omitted). Not so. The Board found that the
goods “could” encompass basic, inexpensive linens, “as well
as” luxury linens. Decision, 2023 WL 3561719, at *9 (em-
phases added); see J.A. 101–02 ¶ 23; J.A. 112–13 ¶ 23. This
finding is reasonable and supports the Board determining
factor four to be neutral.
V. DuPont Factor Five
The fifth DuPont factor considers “[t]he fame of the
prior mark (sales, advertising, length of use).” DuPont, 476
F.2d at 1361. Fame, for purposes of likelihood of confusion,
“varies along a spectrum from very strong to very weak.”
Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1375 (Fed. Cir. 2005) (ci-
tation omitted). “Relevant factors include sales, advertis-
ing, length of use of the mark, market share, brand
awareness, licensing activities, and variety of goods bear-
ing the mark.” Coach Servs., 668 F.3d at 1367.
The Board found that Opposer’s mark is “commercially
somewhat strong,” and determined “that this weighs in fa-
vor of finding a likelihood of confusion.” Decision, 2023 WL
3561719, at *6. The factual findings underlying that deter-
mination are supported by substantial evidence. The
Board noted that “Opposer’s confidential sales figures are
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 11
significant,” and that its “advertising expenses are also
high enough that [the Board] would expect Opposer’s pro-
motional efforts to have reached an appreciable number of
relevant consumers.” Id. at *5. But the Board observed
that it had “no context” for these figures, “such as how the
figures . . . compare with that for other brands.” Id. (cita-
tion omitted). Additionally, the Board found that “public
exposure to Opposer and its mark via social and traditional
media is underwhelming.” Id. at *6.
Opposer argues that the Board erred in discounting the
commercial strength of its marks and should have deter-
mined that this factor “weigh[s] heavily in favor of a finding
of a likelihood of confusion.” Appellant’s Br. 41 (emphasis
added). Specifically, Opposer contends that the Board im-
properly discounted its sales and advertising figures based
on a lack of comparative evidence to “other brands of linens
and related products,” and that doing so contravened our
decision in Omaha Steaks International, Inc. v. Greater
Omaha Packing Co., 908 F.3d 1315 (Fed. Cir. 2018). Ap-
pellant’s Br. 40–41 (quoting Decision, 2023 WL 3561719, at
*5).
We disagree. In Omaha Steaks, we determined that
the Board erred in discounting raw sales and advertising
data where the opposer provided “considerable contextual
evidence” about its marketing efforts—even though it did
not provide market share data. 908 F.3d at 1319–21; see
id. at 1320 (“Market share is but one way of contextualizing
ad expenditures or sales figures.”). Here, by contrast, Op-
poser offered no comparable contextual evidence. The
Board did not require market share data. Accordingly, the
Board appropriately considered Opposer’s sales and adver-
tising figures, along with Opposer’s underwhelming media
presence, and reasonably found that Opposer’s marks are
“commercially somewhat strong.” Decision, 2023 WL
3561719, at *5–6.
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SFERRA FINE LINENS, LLC v. SFERA JOVEN S. A. 12
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. In sum, the Board’s factual
findings underlying the third, fourth, and fifth Dupont fac-
tors are supported by substantial evidence and therefore
will not be disturbed. However, because the Board erred
in weighing the first Dupont factor and failed to address
and evaluate relevant evidence concerning the second
Dupont factor, we vacate the Board’s decision and remand
for further proceedings consistent with this opinion.
VACATED AND REMANDED
Costs
Costs to Appellant.
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