Allora Health Inc. DBA Evvy v. Movano Inc.

This Opinion is Not a
Precedent of the TTAB
Mailed: December 3, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
Allora Health Inc. d/b/a Evvy
v.
Movano Inc.
Opposition No. 91287786
_____
Nathan T. Paine, Kyle B. Straughan, and Elias J. Aranda of Holland & Knight LLP
for Allora Health Inc. d/b/a Evvy.
William B. Chadwick and Eryn Y. Truong of Loza & Loza LLP
for Movano Inc.
_____
Before Goodman, English and Cohen,
Administrative Trademark Judges.
Opinion by English, Administrative Trademark Judge:
Applicant, Movano Inc., seeks registration on the Principal Register of the
standard-character mark EVIE for the following goods and services:
Wearable activity trackers; downloadable computer software for
providing health, wellness, healthcare, and medical information, in
International Class 9;
Health monitoring devices for capturing and transmitting physiological
metrics, blood pressure, blood glucose level, heart rate, hydration and
heart rate variability; wearable heart rate monitor; wearable
monitoring devices for capturing physiological metrics, blood pressure,
blood glucose level, heart rate, hydration and heart rate variability, in
International Class 10; and

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Online retail store services featuring health and fitness products,
electronic devices, wearable activity trackers, and accessories, in
International Class 35.1
The ESTTA coversheet to the notice of opposition, which is an integral part of the
complaint, specifies that the opposition is against all three classes of goods and
services in the application.2 As the sole ground for opposition, Opposer, Allora Health
Inc. d/b/a Evvy, alleges likelihood of confusion under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d). As the basis for its claim, Opposer pleads ownership of a
Principal Register registration for the mark EVVY for:
Diagnostic kits comprised of medical diagnostic reagents and assays for
testing of bodily fluids for use in disease detection, namely, bacterial
vaginosis, urinary tract infections, and yeast infections; diagnostic kits
consisting primarily of monoclonal antibodies, buffers, and reagents for
use in disease testing; dietary supplements; dietary supplements for
urinary health; dietary and nutritional supplements; nutritional
supplements, namely, probiotic compositions; probiotic preparations for
medical use; probiotic supplements; vaginal antifungals; vaginal
1 Application No. 97614560 was filed on September 30, 2022. For all three classes of goods
and services, the application was filed based on an intent to use the mark in commerce under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
2 Notice of Opposition, 1 TTABVUE 1.
Opposer attached to its Notice of Opposition screenshots from the United States Patent and
Trademark Office’s Trademark Status and Document Retrieval (“TSDR”) database for its
pleaded registration and pleaded application as well as alleged “photographs of
representative samples of diagnostic kits and promotions for EVVY’s services.” 1 TTABVUE
5 (¶ 7) and 10-23.
A pleaded registration “will be received in evidence and made part of the record if the
opposition … is accompanied … by a current copy of information from the electronic database
records of the Office showing the current status and title of registration.” Trademark Rule
2.122(d), 37 C.F.R. § 2.122(d). The screenshot for Opposer’s pleaded registration does not
show the owner of the mark so we give the attachment no further consideration. Nor do we
consider the other exhibits to the notice of opposition because they are not the types of
documents that can be admitted at the pleading stage. Trademark Rule 2.122(c).

Opposition No. 91287786
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preparations, namely, antifungals; vaginal suppositories for the
prevention and treatment of infections in International Class 5; and
Diagnostic kits consisting primarily of probes, buffers and reagents for
use in microbial testing in International Class 10.3
Opposer also pleads common law use of the mark EVVY “since at least as early as
June 7, 2021 in connection with the manufacture, distribution, sale, marketing,
advertising, and promotion of its diagnostic kits and wellness services,”4 and
ownership of a Principal Registration application for the standard-character mark
EVVY for:5
Compiling data for research purposes in the field of medical science and
medical consultancy; Providing temporary use of a web-based software
application for accessing, analyzing, leveraging, and sharing
information and data in the healthcare and life sciences fields, namely,
information and data related to de-identified patient profiles, diagnosis
history, biomarker testing for use in developing and evaluating
diagnostic tools, therapeutics, care pathways, and consumer products
related to female health conditions; Scientific research for medical
3 Registration No. 6648452 issued on February 15, 2022 from an application filed on February
10, 2021 (the “’452 Registration”). Opposer’s Notice of Reliance (“NOR”), 12 TTABVUE 29-
31, Exhibit B.
4 Notice of Opposition, 1 TTABVUE 3-8.
Opposer also pleaded that “the goods and services associated with Applicant’s proposed EVIE
Mark clearly fall within the natural zone of expansion of EVVY.” Id. at 7, ¶ 20. “Normally,
th[e] doctrine [of natural expansion] is used in the context of parties’ dueling claims of
priority.” Orange Bang, Inc. v. Olé Mexican Foods, Inc., No. 91189001, 2015 WL 5675641, at
*19 (TTAB 2015); see also Dollar Fin. Grp., Inc. v. Brittex Fin. Inc., 132 F.4th 1363, 1369-70
(Fed. Cir. 2025) (“Under the doctrine of natural expansion the first user of a mark in
connection with particular goods or services possesses superior rights in the mark as against
subsequent users of the same or similar mark for any goods or services which purchasers
might reasonably expect to emanate from it in the normal expansion of its business under
the mark.”). In its brief, however, Opposer did not argue the doctrine of natural expansion to
prove prior common law rights. We thus consider the natural expansion doctrine as “merely
another facet” of the relatedness of goods and services inquiry. J.C. Hall Co. v. Hallmark
Cards, Inc., 340 F.2d 960, 963 (CCPA 1965).
5 Application Ser. No. 97898280 was not properly made of record during trial.

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purposes in the field of biomarker discovery and development, in
International Class 42; and
Health care services, namely, vaginal healthcare; Health assessment
services; Medical diagnostic testing, monitoring and reporting services;
Medical testing for diagnostic or treatment purposes; Medical testing for
diagnostic or treatment purposes in the field of vaginal health;
Providing health information; Providing personalized healthcare and
medical information in the nature of vaginal microbiome analysis;
Providing a website featuring information in the field of vaginal health;
Providing health information in the field of vaginal health; Wellness and
health-related consulting services, in International Class 44.
In its answer, “Applicant admits that the U.S. Patent & Trademark Office
Trademark Status & Document Retrieval database identifies Opposer as the owner
in U.S. Trademark Registration No. 6,648,452.”6 Applicant otherwise denies the
salient allegations in the notice of opposition.7
Both parties introduced evidence and filed briefs. To prevail on its Section 2(d)
claim, Opposer must prove by a preponderance of the evidence its entitlement to a
statutory cause of action, priority and likelihood of confusion. Cunningham v. Laser
Golf Corp., 222 F.3d 943, 951 (Fed. Cir. 2000). For the reasons discussed below, we
find that Opposer has met its burden as to Classes 9 and 10 in Applicant’s involved
6 4 TTABVUE 2, ¶ 3.
7 Applicant also alleges some “affirmative defenses.” To the extent Application pleads “failure
to state a claim,” that is not a true affirmative defense and will be given no consideration
because it relates to an assertion of the insufficiency of the pleading rather than a statement
of a defense to the merits of a claim. Tequila Cuadra S. de RL de CV v. Manufacturera de
Botas Cuadra, S.A. de C.V., No. 91282327, 2025 WL 1431504, at *1 n.3 (TTAB 2025). We
construe the remainder of the allegations in paragraphs 24-26 of Applicant’s answer (i.e. no
likelihood of confusion, Opposer lacks rights in the mark EVVY for the goods/services
identified in the pleaded application, and the EVVY mark is weak) as amplifications of
Applicant’s denials. Applicant did not pursue and thus forfeited its affirmative defenses “of
waiver, latches, estoppel and/or acquiescence” in paragraph 27 of its answer. Id.

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application and we sustain the opposition as to these classes. But we dismiss
Opposer’s opposition as to Applicant’s Class 35 services.
I. Claim Forfeited as to Class 35 Services
As noted, Opposer opposed all three classes in Applicant’s application. For a multi-
class application, “[e]ach international class stands on its own, for all practical
purposes like a separate application, and [the Board] must make determinations for
each separate class.” Gen. Mills, Inc. v. Fage Dairy Processing Indus. S.A., No.
91118482, 2011 WL 6001095, at *1, n.1 (TTAB 2011), judgment set aside on other
grounds, 2014 WL 343267 (TTAB 2014); see also N. Face Apparel Corp. v. Sangyang
Indus. Co., No. 91187503, 2015 WL 6467820, at *11 (TTAB 2015) (“Because each class
in Applicant’s multi-class application is, in effect, a separate application, we consider
each class separately, and determine whether Opposer has shown a likelihood of
confusion with respect to each.”); Electro-Coatings, Inc. v. Precision Nat’l Corp., 1979
WL 24893, at *12 (TTAB 1979)8 (with respect to three-class application, “there are,
in law, three applications and three oppositions to be adjudicated, because each class
in a multiple class application constitutes a separate case”).
In its trial brief, Opposer does not argue its Section 2(d) claim as to Applicant’s
Class 35 services, namely, “online retail store services featuring health and fitness
8 The proceeding number for this case is unavailable.

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products, electronic devices, wearable activity trackers, and accessories.” Rather it
argues a likelihood of confusion only as to Applicant’s goods in Classes 9 and 10.9
By failing to argue its Section 2(d) claim as to Applicant’s Class 35 services,
Opposer forfeited its claim as to this class. The opposition against Class 35 is
therefore dismissed. Gen. Mills, 2011 WL 6001095, at *1, n.1 (In its brief, opposer
directed the arguments in support of its likelihood of confusion claim to one class in
a multi-class application resulting in waiver of the claim as to the class not addressed;
“Claims, counterclaims, or defenses which are not argued in a party’s brief are
considered waived.”).
II. Evidentiary Objections and Record
Evidentiary Objections10
1. Opposer’s Notice of Reliance: Exhibits E, F, L, P and Q
Applicant objects to Opposer’s Notice of Reliance Exhibits E, F, L, P and Q on the
ground that Opposer did not sufficiently identify the general relevance of the evidence
9 Opposer’s Brief, 22 TTABVUE. The only mention of Applicant’s Class 35 services in
Opposer’s main trial brief is Opposer’s identification of the application in the “Recitation of
the Facts” section of its brief. 22 TTABVUE 14. This is not sufficient to preserve Opposer’s
Section 2(d) claim as to Class 35. Nor is the single reference to Applicant’s Class 35 services
in Opposer’s rebuttal brief wherein Opposer ironically faults Applicant for “entirely ignoring
that the EVIE application also includes … ‘on-line retail stores services…’ in Class 35.” 26
TTABVUE 20. Cf. Fuji Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1375 n.4 (Fed. Cir.
2005) (court will not consider arguments raised for the first time in reply brief).
10 Applicant’s objections discussed in this section are raised in an appendix to its brief.
Opposer raises additional objections in the body of its brief that we do not address because
they are not outcome determinative or the evidence has been excluded based on the objections
raised in Applicant’s appendix.

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nor sufficiently associate the evidence with one or more issues in the case.11 The
deficiencies in Opposer’s notice of reliance could have been cured if Applicant had
timely asserted the objections. Applicant’s objections thus are untimely and have
been waived.12 Trademark Rule 2.122(g), 37 C.F.R. § 2.122(g) (“Failure to identify
the relevance of the evidence [in a notice of reliance], or associate it with issues in the
proceeding, with sufficient specificity is a procedural defect that can be cured.”); STX
Fin., LLC v. Terraza, No. 91240829, 2020 WL 5089290, at *2 (TTAB 2020).
2. Opposer’s Notice of Reliance: Exhibits G and O
Applicant objects to Opposer’s Notice of Reliance Exhibits G and O on the ground
that “they do not include a full URL [address]. Instead, Opposer provides the general
homepage domain (e.g. facebook.com), but does not disclose the full URL for the
specific page(s) where the screenshots were taken.”13 This is a procedural objection
that could have been cured if timely raised. Applicant’s objection thus is untimely and
has been waived. City Nat’l Bank v. OPGI Mgmt. GP Inc., 92050730, 2013 WL
3168094, at *3 (TTAB 2013) (“Any shortcomings in respondent’s original submission
11 Applicant’s Appendix, 24 TTABVUE 45-47.
12 That said, proper identification in a notice of reliance of the purpose of evidence is
important not only to put the opposing party on notice, but also to inform the Board why the
evidence is relevant. In future cases, Opposer and its counsel should make sure that any
notice of reliance “include a description and the general relevance of the proffered materials,
and … associate the materials with one or more issues in the case.” Trademark Rule 2.122(g).
13 Applicant’s Appendix, 24 TTABVUE 47.
While we do not strike this evidence, Opposer and its counsel are cautioned in future cases
to provide the full URL address for the specific web page sought to be introduced as well as
the date of capture.

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... under notice of reliance, such as its failure to identify the URL and when the
document was actually accessed (either printed out or downloaded), are procedural
deficiencies that were not timely raised by petitioner and thus have been waived.”).
3. Opposer’s Notice of Reliance: Exhibits I, J, M and N
Applicant raises several objections to Exhibits I, J, M and N to Opposer’s Notice
of Reliance. First, Applicant objects to these exhibits on the ground that “they do not
include a full URL [address].”14 For the reasons stated above, Applicant has waived
this objection.
Second, Applicant objects to the screenshots comprising Exhibits I, J, M and N as
“inadmissible hearsay to the extent Opposer intends to rely on them for the truth of
the statements contained therein.”15 This objection is sustained; we consider these
exhibits only for what they show on their face and not the truth of their contents.
WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., No. 91221553, 2018
WL 1326374, at *6 (TTAB 2018).
Third, Applicant objects to Exhibit J to the extent Opposer seeks to rely on the
exhibit for reasons “beyond the scope” of what Opposer disclosed in its notice of
reliance.16 In its notice of reliance Opposer indicated its intention to “rely on [Exhibit
14 Id. at 48.
15 Id. at 49.
16 Opposer objects to Exhibit I on this same basis. The concern behind Applicant’s objection
appears to be that Opposer is attempting to rely on Exhibit I to prove that it is expanding its
goods and services. But we have sustained Applicant’s hearsay objection to Exhibit I and
consider the article only for what it shows on its face so it has limited probative value.

Opposition No. 91287786
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J] to help describe the relevant market for the parties.”17 Applicant argues that
Opposer does not rely on the evidence for this purpose but rather “to argue that the
brands have appeared in overlapping media.”18 We find the Opposer’s stated purpose
for Exhibit J encompasses or is closely related to the reason for which Opposer relied
on it. Accordingly, this objection to Exhibit J is overruled.
4. Jain Rebuttal Declaration and Exhibit thereto
Opposer introduced the rebuttal declaration of its CEO, Priyanka Jain. Applicant
objects to the entirety of Ms. Jain’s 11-paragraph rebuttal declaration and the exhibit
thereto on the ground that this evidence is improper rebuttal.19
Opposer contends that the Jain Rebuttal Declaration and the accompanying
exhibit are “intended to rebut and discredit the assertions made in the Declaration
[and cross-examination of Applicant’s Chief Marketing Officer,] Tyla Bucher,
including at least, but not limited to”:
(1) “paragraphs 36-38 thereof wherein Ms. Bucher asserts that
[Applicant] does not consider Opposer to be a direct competitor”
and “does not consider Opposer’s offerings under its EVVY mark
to directly compete with Movano’s offerings under its EVIE
mark”;
(2) Bucher’s “legal conclusion that [Applicant’s] EVIE mark is
unlikely to cause confusion with EVVY’s mark … because (a) the
marks have different pronunciations, (b) the marks have a
17 Opposer’s NOR, 12 TTABVUE 4, ¶ 10.
18 Applicant’s Appendix, 24 TTABVUE 49-50.
19 Applicant raised the same objection to Exhibits B, C, F and H to Opposer’s rebuttal notice
of reliance, but Opposer asserts that the objection to these exhibits is moot because Opposer
did not rely on this evidence. We agree and give this evidence and Applicant’s objections
thereto no further consideration.

Opposition No. 91287786
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different connotation and evoke different imagery and meaning,
(c) the parties’ respective uses of the marks appear to differ
significantly, (d) the goods sold under the respective marks differ
significantly in terms of purpose, industry, type of consumer, and
channels of trade, and (e) the parties and marks have coexisted
for years without consumer confusion or harm”; and
(3) “the pronunciation of [Opposer’s] EVVY mark” citing Ms.
Bucher’s testimony “I was looking at Evvy as ‘Eh-vee.’”20
“It is axiomatic that rebuttal testimony may be used only to rebut evidence offered
by the defendant.” Andrusiek v. Cosmic Crusaders LLC, No. 92064830, 2022 WL
4103636, at 2 (TTAB 2022) (redesignated as precedent Jan. 3, 2024) (quoting Life
Zone Inc. v. Middleman Grp. Inc., No. 91160999, 2008 WL 2781162, at *5 (TTAB
2008)), aff’d mem., 2023 WL 6889054 (Fed. Cir. 2023). This is because, during its
testimony period, a defendant is entitled to rebut any testimony and evidence
proffered during a plaintiff’s main trial period. Such opportunity is foreclosed if the
plaintiff withholds evidence until its rebuttal testimony period. U.S. Playing Card
Co. v. Harbro, No. 91162078, 2006 WL 3704640, at *3 (TTAB 2006).
“The function of rebuttal evidence is to deny, explain, discredit, repel, counteract,
or disprove the evidence of the adverse party.’’ Philanthropist.com, Inc. v. Genl. Conf.
Corp. of Seventh-Day Adventists, No. 92065178, 2021 WL 2472776, at *13 (TTAB
2021), aff’d 2022 WL 3147202; see also Illyrian Imps., Inc. v. Adol SH.P.K., No.
20 Opposer’s Rebuttal Appendix, 26 TTABVUE 29-30. Opposer cites to Ms. Bucher’s
deposition at 20 TTABVUE 144 but this page bears no mention of the pronunciation of
Opposer’s EVVY mark. We presume Opposer was referring to page 144 of the Bucher cross-
examination deposition transcript at 20 TTABVUE 146, where Ms. Bucher testifies to her
opinion about how the mark EVVY is pronounced.

Opposition No. 91287786
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91234244, 2022 WL 970321, at *5 (TTAB 2022). Evidence that is “merely cumulative”
or merely “add[s] to the proofs made as part of [the plaintiff’s] case in chief does” not
satisfy these purposes. U.S. Playing Card v. Harbro, 2006 WL 3704640, at *4. That
said, “[t]he fact that evidence might have been offered [during a plaintiff’s case-in-
chief] does not preclude its admission as rebuttal.” Philanthropist.com, 2021 WL
2472776, at *13 (quoting Data Packaging Corp. v. Morning Star, Inc., No. 91061124,
1981 WL 40443(TTAB 1981)).
The testimony in the Jain Rebuttal Declaration concerns the following topics: (1)
the nature of Opposer’s industry; (2) Opposer’s customer demographics; (3) the outlets
through which Opposer advertises and media that have featured Opposer; (4) the
pronunciation of Opposer’s EVVY mark; (5) the identity of Opposer’s competitors; (6)
a conference at which Ms. Jain was invited to speak; (7) Opposer’s use of the mark
EVVY in connection with a “web-based application” providing, inter alia, test results,
personalized health recommendations and a user’s health trends over time; and (8)
that Opposer “is actively developing a software app” for providing its services.21 The
exhibit to the declaration concerns use of the EVVY mark for a web-based application
intended to support the testimony in item 7 above.
With one exception discussed below, the only explanation Opposer gives for Ms.
Jain’s rebuttal testimony is Ms. Bucher’s testimony setting forth her opinions and
legal conclusions on Opposer’s likelihood of confusion claim. It is well-settled that we
21 17 TTABVUE.

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will not substitute witness opinion or legal conclusion for our evaluation of the facts
or the legal claims before us. Edwards Lifesciences Corp. v. VigiLanz Corp., No.
91154210, 2010 WL 1514315 (TTAB 2010) (“We will not substitute the opinion of a
witness … for our evaluation of the facts.”); cf. Alcatraz Media, Inc. v. Chesapeake
Marine Tours Inc., No. 92050879, 2013 WL 5407315 (TTAB 2013) (opinion of expert
witness cannot “serve as a substitute for the Board’s judgment on the legal claims
before us”), aff’d mem., 565 F. App’x 900 (Fed Cir. 2014). Moreover, to allow Opposer
to submit evidence on rebuttal simply because Applicant introduced evidence
concerning the claim at issue would obliterate the distinction between case-in-chief
and rebuttal evidence.
a. Topic 1: The Nature of Opposer’s Industry
Ms. Jain’s rebuttal testimony in item 1 above is merely cumulative of the
testimony in her case-in-chief declaration that Opposer “provides goods and services
in the health and wellness space.”22 U.S. Playing Card Co. v. Harbro, 2006 WL
3704640, at *4 (cumulative evidence does not satisfy the function of rebuttal
evidence).
22 Compare 10 TTABVUE 3-4, ¶¶ 6, 9 (Opposer’s goods and services are in the “health and
wellness space” and Opposer “participates in events in the health and wellness space”) with
17 TTABVUE 2, ¶ 2 (Opposer “is in the health and wellness industry.”).

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b. Topics 2, 3 and 6: Opposer’s Consumer Demographics,
Advertising, Media Coverage, and Speaking Engagements
The rebuttal testimony in items 2, 3 and 6 concerning Opposer’s consumer
demographics, advertising, media coverage, and speaking engagements also merely
adds to the proofs Opposer made as part of its case in chief.23 Id.
c. Topic 4: Pronunciation of Opposer’s Mark
The rebuttal testimony regarding pronunciation of the EVVY mark in item 4
responds to opinion testimony, which need not be rebutted because, as explained, we
will not substitute the opinion of a witness for our evaluation of the facts and law.
Ritz Hotel Ltd. v. Ritz Closet Seat Corp., No. 91078707, 1990 WL 354578, at *4 (TTAB
1990) (purpose of rebuttal is to “introduce facts and witnesses appropriate to deny,
explain or otherwise discredit the facts and witnesses of applicant”; rebuttal
23 Compare 10 TTABVUE 5, ¶¶ 12-13 (“EVVY’s customers span a wide variety of consumers
including at least all teen and adult female persons[.]”) with 17 TTABVUE 3, ¶ 3 (Opposer’s
“largest demographic is women 25 to 40 years old[.]”);
Compare 10 TTABVUE 4-5, ¶ 10-11, 16 (“EVVY extensively markets its goods and services
nationally on its website and through social media including, without limitation, on
Instagram, Facebook, TikTok, LinkedIn, Pinterest, X (f/k/a Twitter), Pinterest, Reddit,
Youtube, and Threads.” and “EVVY has been featured or discussed by a number of large
publications including, but not limited to: the Wall Street Journal; Tech Crunch; Fast
Company; Fierce Healthcare; Fortune, Inc.; Forbes; Fast Company; and Femtech Insider.”)
with 17 TTABVUE 3, ¶¶ 4, 9 (“In addition to the online platforms in my previous declaration,
EVVY also markets its products via Google Ads and through search engine optimization.”;
and “EVVY has been featured in CNet, in addition to the other media described in my
previous declaration.”).
Compare 10 TTABVUE 6, ¶ 22 (“EVVY has promoted its EVVY Mark at a wide variety of
trade shows, symposiums, talks, media events, television appearances, and other events,
including, but not limited to, at: Longevity Docs Mastermind, MedCity News, and Bloomberg
Tech.”) with 17 TTABVUE 3, ¶ 8. (“I was invited to speak on behalf of EVVY at [the trade
show] CES 2025 as part of the Lifestyle track but was unable to attend.”).23

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testimony at issue was opinion, not fact, and should have been introduced as part of
plaintiff’s case-in-chief). In any event, this is the type of evidence that should have
been introduced as part of Opposer’s case-in-chief.
d. Topics 7 and 8 and Exhibit 1: Opposer’s Use of its Mark
Ms. Jain’s rebuttal testimony is cumulative to the extent she testified during
Opposer’s main testimony period regarding Opposer’s use of the EVVY mark with a
web-based application.24
Moreover, Applicant has provided no explanation for waiting until rebuttal to
introduce Ms. Jain’s testimony elaborating on Opposer’s use of its mark for “a web-
based application” and its development of “a software app.” Indeed, there is nothing
to rebut because Applicant did not introduce any evidence about Opposer’s use or
intended use with such goods and services. Cf. Philanthropist.com, 2021 WL 2472776,
at *13 (overruling Respondent’s objection to evidence as improper rebuttal based on
Petitioner’s explanations, including “Petitioner’s Rebuttal Notice of Reliance
specifically set[ting] forth Respondent’s particular evidence or testimony being
rebutted”). It is Opposer’s burden to prove its Section 2(d) claim, i.e. priority and
likelihood of confusion, by a preponderance of the evidence. Wet Seal, 2007 WL
24 See Jain Decl., 10 TTABVUE 3, ¶ 6 (“Providing temporary use of a web-based software
application for accessing, analyzing, leveraging, and sharing information and data in the
healthcare and life sciences fields, namely, information and data related to de-identified
patient profiles, diagnosis history, biomarker testing for use in developing and evaluating
diagnostic tools, therapeutics, care pathways, and consumer products related to female
health conditions”).

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458529, at *1-2 (TTAB 2006) (“The burden is on opposer, in the first instance, to come
forward during its own testimony period with proof of the essential elements of its
claim.”). Opposer may not use its rebuttal trial period to attempt to plug perceived
holes in its case in chief.
e. Topic 5: Opposer’s Competitors
The only rebuttal testimony that we find appropriate is Ms. Jain’s testimony that
the parties are competitors in the market because the testimony is an attempt to
discredit Ms. Bucher’s testimony that Applicant does not consider Opposer to be one
of its competitors.
f. Conclusion
In view of the foregoing, we sustain Applicant’s objection as to the entirety of the
Jain rebuttal declaration and the exhibit with two exceptions. Applicant’s objection
is overruled as to Paragraphs 1 and 10 of the Jain Rebuttal declaration, which we
consider.25
25 Opposer argues that the Board has the discretion to consider its improper rebuttal evidence
because Applicant has not shown that Ms. Jain’s testimony “raises any new or surprising
issues or that any prejudice would result from its consideration,” citing Apollo Med. Extrusion
Techs. v. Med. Extrusion Techs., Inc., No. 91219435, 2017 WL 3600737, at *3, n.5 (TTAB
2017), rev’d on other grounds by stipulation pursuant to settlement agreement, No. 3:17-cv-
02150-AJB-MSB (S.D. Cal. Apr. 13, 2021). We decline to exercise such discretion here. Nearly
the entirety of the Jain Rebuttal Declaration is improper rebuttal and much of it would
prejudice Applicant if it were allowed because Applicant had no opportunity to respond
during its trial period.

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5. Opposer’s Rebuttal Notice of Reliance, Exhibits D, E and G
Applicant also objects to the following exhibits to Opposer’s Rebuttal Notice of
Reliance on the ground the evidence is improper rebuttal:26
• Exhibit D consisting of “screenshots of pronunciations of EVIE and EVVY from
howtopronounce.com. … Both names are pronounced, in at least one example
audio recording, as ‘Eh-vee’”.
• Exhibit E consisting of “true and correct screenshots showing software apps
owned by June Bio, Daye, MicrogenDX, Oura, Ultrahuman, RingConn, and
Circular available at Apple or Google’s app stores,” identified in the Jain
Rebuttal Declaration as competitors of Opposer; and
• Exhibit G consisting of “a true and correct copy of an article discussing the
names EVVY and EVIE from theBump.com.”27
Opposer argues that it introduced rebuttal Exhibits D and G to “to discredit and
rebut Exhibits J-L of [Applicant’s] Notice of Reliance, wherein it sought to introduce
evidence regarding the popularity of the EVIE and EVVY names, and their
pronunciation.”28 As explained, consumer perception and pronunciation of the
parties’ marks is classic case-in-chief evidence that Opposer should have introduced
during its main trial period.29
26 The rebuttal notice of reliance identifies the exhibits by exhibit letter, but none of the
exhibits are labeled by letter or distinguished in any way from one another. This omission
hampered our review of the record.
27 Applicant’s Appendix, 24 TTABVUE 50-51.
28 Opposer’s Rebuttal Brief Appendix, 26 TTABVUE 36.
29 As to Exhibits D and G, Opposer points to this evidence four times in its main brief as
support for its argument that the marks are similar under the first DuPont factor. 22
TTABVUE 19.

Opposition No. 91287786
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Opposer argues “[t]o the extent that [Opposer] utilized this rebuttal evidence in
its case-in-chief, once a document is admitted into evidence, it may be relied on by
the parties for any relevant purpose.”30 This argument misses the mark. Opposer’s
reliance in its main brief on Notice of Reliance Exhibits D and G underscores that
this evidence is not rebuttal evidence, but that it supports Opposer’s prima facie case
and should have been introduced during Opposer’s main trial period. Indeed, as
Opposer recognizes, the similarity of the marks is a “key [DuPont] factor”; one of the
“most important.”31
We find, however, that Exhibit E is appropriate rebuttal evidence because it is an
attempt to discredit Applicant’s witness testimony that Applicant “does not consider
Opposer to be a direct competitor.”32
Accordingly, Applicant’s objection to Exhibits D and G to Opposer’s rebuttal
declaration is sustained and we give these exhibits no consideration.33 Applicant’s
objection to Exhibit E to Opposer’s rebuttal declaration is overruled; we have
considered this exhibit.34
30 Opposer’s Appendix, 26 TTABVUE 30.
31 Opposer’s Brief, 22 TTABVUE 17, 19.
32 Bucher Decl., 14 TTABVUE 6, ¶ 36.
33 Even if we had allowed Rebuttal Notice of Reliance Exhibits D and G, Opposer
impermissibly seeks to rely on the exhibits for the truth of their contents, i.e. hearsay.
Internet printouts that are not supported by evidence are admissible only for what they show
on their face, not the truth of their contents. WeaponX, 2018 WL 1326374, at *6.
34 Applicant’s objection that Opposer “failed to sufficiently describe the relevance of [Rebuttal
NOR Exhibit E] or associate it clearly with a specific issue in the case,” 26 TTABVUE 50, is
untimely and deemed waived.

Opposition No. 91287786
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The Record
The record includes the pleadings, the submissions of the parties during their
respective trial periods (except to the extent excluded above), and, by rule, the file of
Applicant’s involved application. See Trademark Rule 2.122(b)(1), 37 C.F.R.
§ 2.122(b)(1). Although we do not list the contents of the record, we have reviewed
and considered the admissible evidence of record in its entirety. Sawstop, LLC v.
Felder KG, No. 91255905, 2025 WL 2400134, at *2 (TTAB 2025); Quiktrip W., Inc. v.
Weigel Stores, Inc., 984 F.3d 1031, 1036 (Fed. Cir. 2021) (“We have held ‘on multiple
occasions that failure to explicitly discuss every issue or every piece of evidence does
not alone establish that the tribunal did not consider it.’” (quoting Novartis AG v.
Torrent Pharms. Ltd., 853 F.3d 1316, 1328 (Fed. Cir. 2017))).
III. Entitlement
Entitlement to a statutory cause of action must be established in every inter
partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d
1370, 1373 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 128 n.4 (2014)). A party in the position of plaintiff may oppose
registration of a mark when the cause of action is within the zone of interests
protected by the statute, and the plaintiff has a reasonable belief in damage that is
proximately caused by registration of the mark. Corcamore, LLC v. SFM, LLC, 978
F.3d 1298, 1305-06 (Fed. Cir. 2020).

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Opposer introduced under notice of reliance a printout from the Office’s TSDR
database showing that it owns the pleaded ’452 Registration for the mark EVVY,
which remains valid and subsisting.35 Opposer thus has demonstrated its entitlement
to pursue its likelihood of confusion claim. Cunningham v. Laser Golf, 222 F.3d at
945-46 (pleaded registrations “suffice to establish … direct commercial interest”; a
belief in likely damage can be shown by establishing a direct commercial interest);
Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, at *9
(TTAB 2022) (pleaded registrations demonstrated entitlement to bring Section 2(d)
claim); Barbara’s Bakery v. Landesman, No. 91157982, 2007 WL 196406, at *2 (TTAB
2007) (entitlement based on pleaded registration and opposer’s plausible likelihood
of confusion claim).
IV. Priority
Opposer alleges priority in the mark EVVY based on its pleaded ’452 Registration
and common law rights in the mark EVVY.
Because Opposer’s ’452 Registration is of record, and Applicant did not
counterclaim to cancel it, priority is not an issue as to the standard-character mark
EVVY for the goods covered by the pleaded registration, namely:
Diagnostic kits comprised of medical diagnostic reagents and assays for
testing of bodily fluids for use in disease detection, namely, bacterial
vaginosis, urinary tract infections, and yeast infections; diagnostic kits
consisting primarily of monoclonal antibodies, buffers, and reagents for
use in disease testing; dietary supplements; dietary supplements for
urinary health; dietary and nutritional supplements; nutritional
35 Opposer’s NOR, 12 TTABVUE 28-31.

Opposition No. 91287786
- 20 -
supplements, namely, probiotic compositions; probiotic preparations for
medical use; probiotic supplements; vaginal antifungals; vaginal
preparations, namely, antifungals; vaginal suppositories for the
prevention and treatment of infections in International Class 5; and
Diagnostic kits consisting primarily of probes, buffers and reagents for
use in microbial testing in International Class 10.
King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1402 (CCPA 1974); DC
Comics v. Cellular Nerd LLC, No. 91246950, 2022 WL 17832492, at *10 (TTAB 2022).
Applicant acknowledges that Opposer’s priority is not at issue with respect to the
EVVY mark for the goods and services in Opposer’s ’452 Registration.36
We base our likelihood of confusion determination on Opposer’s registered mark
for the goods in the ’452 Registration, and thus, we do not consider whether Opposer
has established prior common law rights.
V. Likelihood of Confusion
Section 2(d) prohibits registration of a mark that “so resembles a mark registered
in the Patent and Trademark Office, or a mark or trade name previously used in the
United States by another and not abandoned, as to be likely, when used on or in
connection with the goods of the applicant [or registrant], to cause confusion, or to
cause mistake, or to deceive.” 15 U.S.C. § 1052(d).
To determine whether Opposer has proven confusion is likely, we evaluate
evidence bearing on the several factors listed in In re E.I. du Pont de Nemours & Co.,
476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). See, e.g., Stratus Networks, Inc. v.
36 Applicant’s Brief, 24 TTABVUE 14.

Opposition No. 91287786
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UBTA-UBET Commc’ns Inc., 955 F.3d 994, 998 (Fed. Cir. 2020). The first two listed
factors are the similarities and/or dissimilarities between the parties’ marks and
goods/services. DuPont, 476 F.2d at 1361. These are key factors in any case under
Section 2(d). See, e.g., Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
1103 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the
cumulative effect of differences in the essential characteristics of the goods and
differences in the marks.”); In re Max Cap. Grp. Ltd., No. 77186166, 2010 WL 22358,
at *1 (TTAB 2010) (“In any likelihood of confusion analysis, two key considerations
are the similarities between the marks and the similarities between the goods and/or
services.”) (citations omitted).
“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); see also In re Charger Ventures LLC, 64
F.4th 1375, 1381 (Fed. Cir. 2023) (citation omitted) (“The weight given each factor
depends on the circumstances of each case.”); 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; citation omitted).
A. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider the “similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial

Opposition No. 91287786
- 22 -
impression.” DuPont, 476 F.2d at 1361; see also Stone Lion, 746 F.3d at 1321.
“Similarity is not a binary factor but is a matter of degree.” In re St. Helena Hosp.,
774 F.3d 747, 752 (Fed. Cir. 2014).
The proper test regarding similarity “is not a side-by-side comparison of the mark,
but instead whether the marks are sufficiently similar in terms of their commercial
impression such that persons who encounter the marks would be likely to assume a
connection between the parties.” Cai v. Diamond Hong, 901 F.3d 1367, 1373 (Fed.
Cir. 2018) (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368
(Fed. Cir. 2012)). The focus is on the recollection of an ordinary consumer, who
normally retains a general rather than specific impression of trademarks. Geigy
Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 1007 (CCPA 1971) (statute
“requires us to consider, among other things, the fallibility of memory over a period
of time, not merely whether one can distinguish the marks at a given moment”); see
also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981)
(Consumers “ordinarily must depend upon their past recollection of marks to which
they were previously exposed”).
Applicant’s involved mark is EVIE in standard characters and Opposer’s
registered mark is EVVY in standard characters. The parties’ marks look quite
similar, each consisting of four letters and starting with the letters “EV.” Because
Opposer’s registered mark and Applicant’s involved mark are in standard characters,
we must consider that each party could display its mark in a font style, size or color

Opposition No. 91287786
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similar to the other increasing the similarities between the marks.37 In re Aquitaine
Wine USA, LLC, 2018 WL 1620989, at *5 (TTAB 2018).
Applicant argues that the marks “are obviously spelled differently. EVVY ends
with the double consonant ‘-VY,’ while EVIE ends with the vowel pair ‘-IE.’ This
difference materially alters the visual word shape that consumers perceive at a
glance.”38 Applicant further asserts that “EVVY has a strong visual symmetry formed
by the noticeable double letter (‘VV’) in the center of the mark, the effect emphasized
by the symmetrical nature of the doubled letter itself. EVIE lacks such symmetry.”39
We acknowledge the difference in spelling but in comparing the marks we must take
into account the fallibility of consumers’ memories. Geigy Chem., 438 F.2d at 1007;
see also Franklin Mint, 667 F.2d at 1007 (Consumers “ordinarily must depend upon
their past recollection of marks to which they were previously exposed”). Moreover,
we are unconvinced that consumers encountering the parties’ marks will focus on
“word shape” or symmetry of the lack thereof.
With respect to sound, Applicant argues its mark “EVIE is a female name with a
single accepted pronunciation: starting and ending with long ‘e’ sounds (EE-vee)” and
Opposer “concedes that the ‘official pronunciation’ of its mark is ‘Eh-Vee’.”40 Applicant
37 For this reason, we are not persuaded by Applicant’s argument that the marks are
dissimilar based on the manner in which Opposer currently displays its mark, which may be
changed at any time. Applicant’s Brief, 24 TTABVUE 16.
38 Id.
39 Id.
40 Applicant’s Brief, 24 TTABVUE 17.

Opposition No. 91287786
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further argues that Opposer’s EVVY mark “is not a recognized word and has no
standard definition. As such, common phonetic rules govern the interpretation of the
pronunciation of the term, absent evidence to the contrary.”41
We agree with Applicant that consumers are likely to recognize its mark as a given
name for females and pronounce the mark as EE-vee as that name is generally
pronounced.42 But we disagree that consumers will uniformly pronounce Opposer’s
EVVY mark as Eh-vee. As Applicant concedes, Opposer’s mark is “not a recognized
word,” and there is no correct pronunciation of a trademark that is not a recognized
word. StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 1331-32 (Fed. Cir.
2014); In re Jimenz, No. 97551823, 2025 WL 3126703, at *5 (TTAB 2025). Although
Opposer may intend that its mark be pronounced Eh-vee,43 there is evidence that
consumers and other third parties have misspelled Opposer’s EVVY mark as EVIE
(see Section V.E. below) suggesting that some relevant consuming public may be
inclined to pronounce the marks the same. See StonCor, 759 F.3d at 1332 (“Where a
trademark is not a recognized word and the weight of the evidence suggests that
potential consumers would pronounce the mark a particular way, it is error for the
Board to ignore this evidence entirely and supply its own pronunciation.”). But even
41 Id.
42 Applicant’s NOR, 15 TTABVUE 4 and 137, ¶ 11 and Exhibit K (printout from the United
States Social Security Administration identifying EVIE as a given name for females that is
growing in popularity; in 2023 EVIE was ranked as high as the 265th most popular given
name in the U.S. for females).
43 Opposer’s Brief, 22 TTABVUE 19 (noting that the “official pronunciation” of its mark is
“Eh-Vee.”).

Opposition No. 91287786
- 25 -
if we were to find that consumers are likely to pronounce Opposer’s EVVY mark as
Eh-vee, there is no dispute that both marks consist of two syllables and end in the
sound “VEE.” As such, the parties’ marks share a similarity in sound.
As to connotation and commercial impression, as noted, Applicant’s mark is likely
to be perceived as a given name. Opposer’s mark EVVY is a made-up word so some
consumers may perceive it as a coined term with no particular meaning. But because
Opposer’s goods are targeted for use by women44 and EVIE is a female name,
consumers may perceive EVVY as an alternate spelling of EVIE.45 The record
showing that consumers and third parties have misspelled EVVY as EVIE, supports
this finding and that the marks convey similar connotations and commercial
impressions.46
Applicant argues that:
EVIE is mainly associated with a personalized smart ring that the users
(primarily women) wear and receive user-friendly information and
insights through the corresponding mobile app, as if from a trusted
female friend. EVVY products, by contrast, lack this ongoing,
personalized functionality. The vaginal swab diagnostic kits are a one-
time, mail-away product. The EVVY mark also carries a specific
connotation when viewed in light of the relevant goods. Specifically,
44 Jain Declaration, 10 TTABVUE 5, ¶ 12 (“[Opposer’s] customers span a wide variety of
consumers including at least all teen and adult female persons as described on the EVVY
website[.]”); id. at 6, 22-26, ¶ 21 and Exhibit B. Exhibit B includes a photograph of EVVY
product packaging with the following text: “The female body shouldn’t be a medical
mystery[.]” Id. at 25.
45 Jain Decl., 10 TTABVUE 5, ¶ 12 (“EVVY’s customers span a wide variety of consumers
including at least all teen and adult female persons as described on the EVVY website.”).
46 We make this finding despite the Social Security Administration printout stating that
“Evvy is not in the top 1000 names for any year of birth beginning with 1900.” Applicant’s
NOR, 15 TTABVUE 140.

Opposition No. 91287786
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EVVY emphasizes the letter “V,” with two V’s in the center of the mark,
a “Y” at the end that is usually stylized to look like a third Y, and a
pronunciation that stresses the “V” sound. This prioritization of the
letter “V” makes sense considering the primary goods under the mark
are vaginal diagnosis and treatment products.
Given that EVIE is a female name, Applicant’s mark might connote to some
consumers the concept of a trusted female friend. For the reasons stated, and given
the similarities of the parties’ goods and both marketed to women, as discussed below,
we find that Opposer’s mark may convey a similar connotation notwithstanding that
its tests are “a one-time, mail-away product.”
Moreover, in our view, Applicant’s argument that the double VV in Opposer’s
mark stresses the “V” sound and the vaginal nature of Opposer’s products is a stretch
and not supported by the evidence of record.
On balance, we find the marks are similar in overall appearance, sound,
connotation and commercial impression.
B. Similarity or Dissimilarity of the Goods
We turn now to the second DuPont factor, under which we consider the “similarity
or dissimilarity and nature of the goods and services as described in an application
or registration.” DuPont, 476 F.2d at 1361. It is “not necessary that the products be
similar or even competitive to support a finding of a likelihood of confusion.” Coach
Servs., 668 F.3d at 1369 (citation omitted). Rather, “likelihood of confusion can be
found ‘if the respective products are related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the

Opposition No. 91287786
- 27 -
mistaken belief that they emanate from the same source.’” Id (citation omitted); see
also In re Davia, No. 85497617, 2014 WL 2531200 at *5 (TTAB 2014) (“The goods
need only be sufficiently related that consumers would be likely to assume, upon
encountering the goods under similar marks, that the goods originate from, are
sponsored or authorized by, or are otherwise connected to the same source.”). “[I]t is
sufficient for finding a likelihood of confusion if relatedness is established for any
item encompassed by the identification of goods within a particular class in the
application.” In re Aquamar, Inc., No. 85861533, 2015 WL 4269973, at *4, n.5 (TTAB
2015) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336
(CCPA 1981)).
1. Applicant’s Class 9 Goods
Applicant’s Class 9 goods are “wearable activity trackers; downloadable computer
software for providing health, wellness, healthcare, and medical information.” In
comparing the parties’ goods, we focus on Opposer’s “diagnostic kits comprised of
medical diagnostic reagents and assays for testing of bodily fluids for use in disease
detection, namely, bacterial vaginosis, urinary tract infections, and yeast infections;
diagnostic kits consisting primarily of monoclonal antibodies, buffers, and reagents
for use in disease testing” in Class 5 of the ’452 Registration and “diagnostic kits
consisting primarily of probes, buffers and reagents for use in microbial testing” in
Class 10 of the ’452 Registration.

Opposition No. 91287786
- 28 -
We first consider the identifications of goods. Applicant’s downloadable software
is broad enough to encompass providing health and medical information in the nature
of providing information about diagnostic test kits, including providing diagnostic
test kit results. We therefore find that the parties’ goods are related on the face of the
identifications. Hewlett Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267 (Fed.
Cir. 2002).
As to Opposer’s Class 10 diagnostic kits for use in microbial testing, Opposer
promotes its EVVY vaginal microbiome test to “[G]et advanced insights into …
fertility.”47 Similarly, Applicant’s Chief Marketing Officer, Tyla Bucher testified that
Applicant’s EVIE “mobile application allows users to input information, such as …
data about their menstrual cycle,”48 and Applicant promotes that its EVIE products
can be used to track fertility.49
47 Opposer’s NOR, Exhibit C, 12 TTABVUE 79.
48 Bucher Decl., 14 TTABVUE 3, ¶ 7.
49 Bucher Decl., 14 TTABVUE 4 and 20, ¶ 16 and Exhibit B.

Opposition No. 91287786
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Excerpt from Applicant’s Website50 Excerpt from Opposer’s Website51
The record thus shows that the parties’ goods may be used for similar purposes.
In re Info. Builders Inc., No. 87753964, 2020 WL 2094122, at *4 (TTAB 2020)
(relatedness established where Applicant’s and Registrant’s software “essentially
serve[d] the same function and purpose....”).
50 Id.
51 Opposer’s NOR, 12 TTABVUE 111; see also id. at 77 (Opposer’s website asserting that “The
latest research has also uncovered links between the vaginal microbiome and critical
outcomes, such as infertility, STIs, preterm birth, and more.”). Id. at 79 (“Evvy Vaginal
Health Test[.] Get advanced insights into symptoms, fertility, and other health outcomes.”).

Opposition No. 91287786
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Opposer also introduced a use-based third-party registration for the mark
for “ovulation test kits for home use and fertility test kits for
home use” on the one hand and “computer software for controlling and managing
patient medical information” and “wearable activity trackers.”52 Although “ovulation
and fertility test kits” are not identical to Opposer’s diagnostic kits, as discussed,
Opposer promotes that its tests may provide insights into a user’s fertility. This
registration provides further support that Opposer’s diagnostic test kits are related
to Applicant’s “downloadable computer software for providing health, wellness,
healthcare, and medical information” as well as Applicant’s activity trackers. “[U]se-
based, third-party registrations, although not evidence that the marks shown therein
are in use or that the public is familiar with them, nonetheless have probative value
to the extent that they serve to suggest that the goods listed therein are of a kind
which may emanate from a single source under a single mark.” Joel Gott Wines LLC
v. Rehoboth Van Gott Inc., No. 91197659, 2013 WL 5407313, at *9 (TTAB 2013); see
also, e.g., DeVivo v. Ortiz, No. 91242863, 2020 WL 1227592, at *14 (TTAB 2020)
(“While not evidence of use of the marks therein, third-party registrations may serve
52 Opposer’s NOR, Exhibit R, 12 TTABVUE 175-76. Opposer introduced additional third-
party registrations. All but 2 of those registrations issued under Sections 44 or 66(a) of the
Trademark Act and there is no indication that allegations of use have been filed in connection
with them. Id. at 177-207, 210-20, 223-73. Thus, they are not probative of relatedness. Made
in Nature, 2022 WL 2188890, at *24. The record also includes two additional use-based
registrations but neither includes diagnostic tests in the identification. Id. at 208-09, 221-22.

Opposition No. 91287786
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to suggest that the parties’ goods ... are of a type which may emanate from a single
source.”).
Based on the entirety of the evidence discussed above, we find Applicant’s Class 9
goods are related to Opposer’s diagnostic test kits identified in both classes of the ’452
Registration.
2. Applicant’s Class 10 Goods
We focus our comparison on Applicant’s “health monitoring devices for capturing
and transmitting physiological metrics” in Class 10 and Opposer’s “diagnostic kits
comprised of medical diagnostic reagents and assays for testing of bodily fluids for
use in disease detection, namely, bacterial vaginosis, urinary tract infections, and
yeast infections; diagnostic kits consisting primarily of monoclonal antibodies,
buffers, and reagents for use in disease testing” in Class 5 of the ’452 Registration
and “diagnostic kits consisting primarily of probes, buffers and reagents for use in
microbial testing” in Class 10 of the ’452 Registration.
We first consider the identifications of goods themselves. A consumer using
Applicant’s health monitoring device for capturing and transmitting physiological
metrics foreseeably may use a diagnostic kit to test for disease. To this end, Applicant
promotes its EVIE ring, a type of health monitoring device, as “helping women
improve their overall health and wellness by tracking a wide range of metrics, logging
health and wellness inputs, and providing users with actionable insights around

Opposition No. 91287786
- 32 -
these metrics.”53 One “actionable insight” would be to test for disease. Similarly, a
user of Opposer’s diagnostic test kit for testing for disease might foreseeably use a
health monitoring device to more closely track her health. The complementary and
related functions of the parties’ goods on their face, i.e. monitoring health and
diagnosing disease, support a finding of relatedness.54 See In re Iolo Techs., LLC, No.
77399654, 2010 WL 2513865, at *3 (TTAB 2010) (“Here, based on the identifications
themselves, we find that applicant offers a product that is complementary in function
and purpose to the software... services offered by registrant.”).
Moreover, despite the fact that the parties’ goods are different in kind (monitoring
device v. diagnostic tests), the record shows that Opposer promotes the use of its
diagnostic kit for vaginal microbial testing. Specifically, Opposer offers “a recurring
membership that provides four [EVVY] tests per year.”55 Opposer’s “Evvy
Membership” enables “Proactive Tracking” of one’s vaginal microbiome.56 An excerpt
from Opposer’s website is below.57
53 Bucher Decl., 14 TTABVUE 4, ¶ 17 (emphasis added).
54 Applicant argues that “goods and services are not complementary when their relationship
is tenuous.” Applicant’s Brief, 42 TTABVUE 27. We do not agree that the relationship
between the parties’ goods is “tenuous.”
55 Jain Decl., 10 TTABVUE 5, ¶ 14.
56 Opposer’s NOR, 12 TTABVUE 76.
57 Id. at 111.

Opposition No. 91287786
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Thus, Opposer promotes its EVVY diagnostic tests to “track” or monitor one’s vaginal
microbiome, which is a type of physiological metric. As such, Opposer’s goods serve a
function similar to that of Applicant’s “health monitoring devices for capturing and
transmitting physiological metrics.” This supports a finding of relatedness. Info.
Builders Inc., 2020 WL 2094122, at *4 (relatedness established where Applicant’s and
Registrant’s software “essentially serve[d] the same function and purpose....”).

Opposition No. 91287786
- 34 -
In addition, the record shows that Applicant’s “health monitoring devices for
capturing and transmitting physiological metrics” are inextricably linked to its
downloadable computer software.58 Thus, the reasons for finding Applicant’s Class 9
goods related to Opposer’s diagnostic tests are equally applicable in finding
Applicant’s Class 10 goods related to Opposer’s diagnostic tests.59
58 Bucher Decl., 14 TTABVUE 3, ¶ 7 (“The EVIE smart ring pairs with the Evie Ring mobile
application (compatible with Android and iOS) to provide user-friendly information and
insights about the information gathered by the EVIE smart ring”).
59 The reverse is also true. The evidence of the relatedness of Applicant’s Class 10 goods and
Opposer’s registered goods further supports finding that Applicant’s Class 9 goods are related
to Opposer’s registered goods.
Applicant introduced twelve pairs of third-party registrations to “demonstrate consumer
familiarity with distinguishing between the source of goods with similar or identical names
across the relevant goods and services associated with Applicant’s EVIE mark and Opposer’s
EVVY mark.” Applicant’s NOR, 15 TTABVUE 5, 141-88. Applicant discusses these pairs of
registrations under the sixth DuPont factor which concerns the use of similar marks for
related goods. DuPont, 476 F.2d at 1361. None of the marks are similar to Opposer’s mark in
appearance, sound, connotation or commercial impression so the pairs of registrations are
not relevant under the sixth DuPont factor (and Applicant has not made any other arguments
under the sixth DuPont factor).
We instead consider the third-party registrations under the second DuPont factor as pairs of
substantially similar marks for the parties’ goods owned by different entities may suggest
that the goods are sufficiently distinct for the marks to coexist. In re Thor Tech, Inc., No.
85667188, 2015 WL 496133, at *4 (TTAB 2015). The pairs of registration, however, have
limited if any probative value. The pairs of registration at Exhibits O and P, S ant T, U and
V, W and X, Y and Z, CC and [DD], each have one registration that covers vitamins or
supplements, goods of Opposer that we have not focused on in finding relatedness. Additional
pairs are not persuasive because they cover goods that have not been proven related to
Opposer’s or Applicant’s goods. See Exhibit Q, V, X, BB, EE. And other pairs of registrations
are for marks that are arguably distinguishable allowing them to coexist. Finally, as a
general matter, we lack important marketplace information such as whether the registrants
entered into any coexistence agreements, whether the marks themselves have actually
coexisted in the marketplace without confusion and whether the marks coexist in a crowded
field such that consumers have been conditioned to distinguish among the specific marks
based on minute differences.

Opposition No. 91287786
- 35 -
Based on the entirety of the evidence discussed above, we find Applicant’s Class 9
goods are related to Opposer’s diagnostic test kits identified in both classes of the ’452
Registration.
Trade Channels, Class of Consumers and Purchaser
Sophistication
We next consider the similarity or dissimilarity of established, likely-to-continue
channels of trade, the buyers to whom sales are made, and consumer sophistication.
Since there are no restrictions as to trade channels or classes of purchasers in the
goods as identified in Applicant’s application and the ’452 Registration, we presume
that the goods travel through all normal channels of trade for such goods and are
offered to all normal potential purchasers for such goods. In re Detroit Athletic Co.,
903 F.3d 1297, 1308 (Fed. Cir. 2018).
Applicant’s witness, Ms. Bucher, testified that Applicant’s EVIE smart ring
monitoring device is a “direct-to-consumer wearable device” that “pairs” with
Applicant’s “mobile application … to provide user-friendly information and insights
about the information gathered by the EVIE smart ring.”60 Applicant lists its EVIE
ring monitoring device for sale on its website.61
Opposer’s diagnostic kits as identified in the ’452 Registration are broad enough
to encompass “direct-to-consumer” kits, and the record shows that Opposer does
market its diagnostic test kits through direct-to-consumer trade channels, namely its
60 Bucher Decl., 14 TTABVUE 2-3, ¶¶ 6-7.
61 Id. at 12-14, (Exhibit B).

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website and the website.62 Based on the identifications in Applicant’s application and
Opposer’s registration, we further find that both parties goods are the type that may
be sold through pharmacies and other retailers selling health and medical goods.63
This is true even though Applicant asserts that its EVIE smart ring is a “tech-first”
product.64 On the face of the identifications of goods, Applicant’s Class 9 and 10 goods
encompass health and medical-related products.
With respect to consumers, due to the complementary and related nature of the
parties’ goods as discussed above, they are likely to be recommended by some of the
same health care professionals to the some of the same end-users (e.g. health
conscious or health concerned consumers). The record further demonstrates that the
62 Opposer’s NOR, 12 TTABVUE 79.
63 Applicant argues that “EVIE is a technology brand,” 24 TTABVUE 25, but both Class 5
and 10 in Applicant’s application identify healthcare-related goods. Moreover, while
Applicant’s witness Ms. Bucher testified that Applicant “markets its EVIE ring as a tech-
first, date-driven wearable” it is “designed for women and dedicated to helping women
improve their overall health and wellness by tracking a wide range of metrics, logging health
and wellness inputs, and providing users with actionable insights around these metrics.”
Bucher Decl., 14 TTABVUE 2, ¶ 17.
The parties also have similar marketing strategies promoting their goods through social
media and social media influencers. Jain Decl., 10 TTABVUE 5, ¶¶ 16 and 18; Bucher Decl.,
14 TTABVUE 3, ¶ 12. This evidence is probative, but we do not give it much weight given the
ubiquity of advertising through social media. In re St. Helena Hosp., 774 F.3d at 754
(“Advertising on the Internet is ubiquitous and proves little, if anything, about the likelihood
that consumers will confuse similar marks used on such goods or services.”) (citation and
quotation marks omitted).
64 Applicant’s Brief, 24 TTABVUE 6, 12 and 42. Applicant also argues that “Opposer does not
provide any evidence of a single store concurrently offering EVIE and EVVY products.
Opposer also does not provide any evidence of EVIE and EVVY attending any similar events
or trade shows.” Id. at 28. Such evidence is not required to demonstrate similarities in trade
channels and consumers.

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parties in fact target their goods to one specific overlapping group of consumers,
namely, women ages 30-60.65
As for purchaser sophistication, because the parties’ goods are health-related
goods, some consumers may purchase the goods with care. In addition, we find merit
in Applicant’s argument that its:
EVIE rings are intimate products that gather and store sensitive
information about a user’s various biometrics. It is also a form of jewelry
designed to be constantly worn. Because of the level of access and the
use as everyday jewelry, consumers typically exercise a higher degree of
care when making a purchase of an EVIE product. … EVVY products
also require a higher-than-normal level of discernment when making a
purchase. Deciding to purchase and use a vaginal swab diagnostic kit,
and send back the specimen, is not a decision that consumers take
lightly or trust to any brand.
The price of the parties’ products might also prompt some users to exercise a greater
level of care in making a purchase.66
Given the inherent nature of the parties’ products and the product price points,
we find that consumers may exercise “some degree of purchasing care.” Info. Builders,
2020 WL 2094122, at *5.
65 Bucher Decl., 14 TTABVUE 3, ¶ 9 (“[Applicant’s] primary customers for its EVIE products
are women, aged 30-60.”); Jain Decl., 10 TTABVUE 5, ¶ 12, (“EVVY’s customers” include “all
teen and adult female persons”); see also id at 22-26 (Exhibit B). Both Applicant’s application
and the ’452 Registration are broad enough to encompass female consumers in this age
bracket.
66 Jain Decl., 10 TTABVUE 5, ¶ 14 (Opposer’s diagnostic tests “cost[] between ninety-nine
and one hundred twenty-nine dollars ($99-129) for a single test, and less for a recurring
membership that provides four tests per year”); see also Opposer’s NOR, 12 TTABVUE 79
(website listing Opposer’s product for sale); Bucher Decl., 14 TTABVUE 3 (“Applicant’s EVIE
smart ring typically retails at $269.00 per device.”).

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Strength of Opposer’s Mark under the Fifth DuPont Factor67
Opposer argues under the fifth DuPont factor that its mark has “garnered
considerable fame.”68 If fame is proven under the fifth DuPont factor it “plays a
‘dominant’ role” in the likelihood of confusion analysis. Recot, Inc. v. M.C. Becton, 214
F.3d 1322, 1327 (Fed. Cir. 2000). This is because famous marks enjoy a “wide latitude
of legal protection since they are more likely to be remembered and associated in the
public mind than weaker marks.” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 1374 (Fed. Cir. 2005).
“Fame for purposes of likelihood of confusion is a matter of degree that varies
along a spectrum from very strong to very weak.” Coach Servs., 668 F.3d at 1367
(cleaned up; citations omitted); see also Joseph Phelps Vineyards, LLC v. Fairmont
Holdings, LLC, 857 F.3d 1323, 1325 (Fed. Cir. 2017) (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.”) (quoting Palm Bay Imps.,
396 F.3d at 1374-75).
Fame or commercial strength under the fifth DuPont factor may be proven
through direct evidence, such as consumer polls, as well as indirectly by the volume
of sales and advertising expenditures in connection with the goods sold under the
mark, and other factors such as length of time of use of the mark; widespread critical
67 Applicant does not make any viable arguments under the sixth DuPont factor, see n.59
above, so this factor is neutral.
68 Opposer’s Brief, 22 TTABVUE 27.

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assessments; notice by independent sources of the goods identified by the mark; and
the general reputation of the goods. Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d
1367, 1371 (Fed. Cir. 2002); Made in Nature, 2022 WL 2188890, at *16. In assessing
Opposer’s argument that its mark is famous, we consider the class of customers and
potential customers for Opposer’s goods, not the general public. Palm Bay Imps., 396
F.3d at 1375.
Opposer relies on indirect evidence to argue that its mark is strong, namely, sales
revenue, advertising expenditures, promotional efforts, and unsolicited media
attention.
Opposer’s sales figures, submitted confidentially, on their face, are not
particularly significant. Rather, they reflect that Opposer is a relatively new,
emerging business.69 Opposer’s advertising figures have increased substantially since
2021 but are still relatively modest.
Opposer focuses on advertising through social media (Instagram, Facebook,
TikTok, LinkedIn, Pinterest, X, Pinterest, Reddit, YouTube, and Threads) and social
media influencers.70 Exposure to Opposer’s social media, through which Opposer
“markets its goods and services nationally,” appears rather significant.71 As of
November 25, 2024, Opposer had “over 70,400 followers on Instagram with over 4.1
million views in the last 30 days; … a reach of 595,400 views on Facebook in the past
69 Jain Decl., 10 TTABVUE 3, ¶ 6.
70 Id. at 5, ¶¶ 16-18.
71 Jain Decl., 10 TTABVUE 5, ¶ 17.

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28 days; over 74,800 views on Pinterest; 13,000 followers on LinkedIn; 176,500
followers on TikTok with over 8 million views in the last 28 days; [and] 3 million
active visitors to its website since June 2021.”72
Applicant argues that “Opposer’s claimed social media engagement metrics … do
not line up with the documentary evidence. EVVY has only 19 followers on Pinterest,
less than 500 followers on X, and under 300 subscribers on YouTube. EVVY’s posts
on Threads appear to get almost no engagement. EVVY’s posts on Instagram do not
appear to fare much better.”73 In support of this last sentence, Applicant cites to an
Instagram post “showing 26 likes… despite being a joint post with The Lanby and
having been posted for over three weeks.”74 Opposer responds that Applicant “ignores
the material factors that EVVY has demonstrated in favor of cherry-picking certain
metrics” and “notably ignores the fact that EVVY’s TikTok has over 176,500 followers
and 6.2 million likes, garnering 8 million views per month.”75
Applicant does not challenge Opposer’s metrics regarding its promotions on
TikTok that have garnered the most views. In addition, the number of followers of a
social media account does not dictate or limit the number of views of an account. That
said, Opposer’s lower numbers of social media followers (as opposed to views) is in
72 Id. at ¶ 18.
73 Applicant’s Brief, 24 TTABVUE 31. Both parties treat the number of “likes” and “followers”
printed on screenshot evidence as true so we do too. Id.; Opposer’s Rebuttal Brief, 26
TTABVUE 19.
74 Applicant’s Brief, 24 TTABVUE 31 (citing Opposer’s NOR, 12 TTABVUE 140).
75 Opposer’s Rebuttal Brief, 26 TTABVUE 19.

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line with the modest sales of its EVVY product suggesting that Opposer’s social media
reach has not yet translated into sales. In addition, we do not know how many views
are from users outside the United States.
Opposer also advertises through “direct correspondences to consumers and
healthcare providers, through distribution partnerships with other wellness
companies [including Elektra Health and The Lanby] on [numerous] podcasts and
through word of mouth.”76 We do not know the level of consumer exposure to these
promotions. For example, there is no information regarding the number of listeners
to the podcasts through which Opposer has promoted its goods.
Ms. Jain also testified that “EVVY’s Equal Research Day, and by extension its
EVVY mark, were widely promoted by well-known celebrities, physicians, and
influences including” Reese Witherspoon, Amy Schumer, and Naomi Watts, and
“EVVY’S Equal Research Day was also partnered with by numerous brands[.]”77
Opposer did not provide evidence about the number of people who attended Equal
Research Day nor did it provide examples of promotions related to the event, but we
infer from the celebrity promoters that this event resulted in some exposure for
Opposer’s brand. Even though the focus of the event was on “equal research,” the
brand would likely have been boosted by this event.
76 Jain Decl. 10 TTABVUE 5-6, ¶¶ 19, 23.
77 Id. at 6-7, ¶¶ 25-26.

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Opposer also “routinely participates in [other] events in the health and wellness
space, including, but not limited to” Goldman Sachs Builders & Innovators Summit
and the American Society of Reproductive Medicine.78 And Opposer “has been
featured in and received a number of awards,” including Forbes 30 Under 30.79
Opposer further promotes its EVVY products “at a wide variety of trade shows,
symposiums, talks, media events, television appearances, and other events,
including, but not limited to, at: Longevity Docs Mastermind, MedCity News, and
Bloomberg Tech.”80 “News related to EVVY garnered over two billion impressions in
2023 and similar levels in 2024.”81 On the face of it, this number of impressions is
impressive, although “news related to EVVY” could include, for example, Opposer’s
stock price or venture capital funding, as opposed to coverage about Opposer’s
products. We further do not know if any of these impressions are from consumers
outside the United States.
In its brief, however, Applicant acknowledges that “EVVY has received third-
party coverage regarding its vaginal diagnostic kits.”82 Robinson v. Hot Grabba Leaf,
LLC, No. 92060394, 2019 WL 1915759, at *9 (statements in brief considered
admissions). In addition, Ms. Jain testified that “EVVY has been featured or
78 Id. at 4, ¶ 9.
79 Id. at ¶ 10.
80 Id. at 6, ¶ 22.
81 Id. at ¶ 24.
82 24 TTABVUE 11.

Opposition No. 91287786
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discussed by a number of large publications including, but not limited to” national
publications such as the Wall Street Journal, Fortune, Inc. and Forbes.
On balance, the number of diagnostic kits and related testing services Opposer
has sold and provided suggest that Opposer’s promotional efforts have not yet been
particularly impactful despite its apparent impressive reach. Thus, the record falls
short of establishing that Opposer’s EVVY mark is famous. That said, Opposer’s
promotional efforts and third-party media coverage supports that Opposer has
established some emerging commercial strength in its EVVY mark.
Actual Confusion
The seventh and eighth DuPont factors are “[t]he nature and extent of any actual
confusion” and “[t]he length of time during and the conditions under which there has
been concurrent use without evidence of actual confusion.” 476 F.2d at 1361.
Under the seventh DuPont factor, Opposer argues that there has been actual
consumer confusion despite the marks having been used “for a relatively short period
of time.”83 DuPont, 476 F.2d at 1361. “[E]vidence of actual confusion is notoriously
difficult to come by,” Time Warner Entm’t Co. v. Jones, No. 9112409, 2002 WL
1628168, at *10 (TTAB 20222), but if properly proven, it is “entitled to great weight.”
Georgia-Pacific Corp. v. Great Plains Bag Co., 614 F.2d 757, 762 (CCPA 1980); see
also In re Majestic Distilling Co., 315 F.3d 1311, 1317 (Fed. Cir. 2003) (“A showing of
83 Opposer’s Brief, 22 TTABVUE 29-30. (emphasis omitted).

Opposition No. 91287786
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actual confusion would of course by highly probative, if not conclusive, of a high
likelihood of confusion.”).
In its brief, Opposer highlights three instances of purported actual confusion:84
On or around October 5, 2024, at a conference hosted by Longevity, an
attendee approached a representative of EVVY and inquired if they were
affiliated with a wearable ring company (obviously a reference to
Movano’s ring product sold under the EVIE Mark) after seeing the
EVVY Mark on the EVVY representative’s badge.85 In another instance
in June of 2024, the CLITEROLOGY podcast identified “EVVY” as
“EVIE” in a description of the podcast episode. Lastly, while a
representative from EVVY was attending a HTLH sessions event
sponsored by Abridge, the representative was mistakenly referred to as
being from “Evie” instead of “EVVY.”86
Applicant argues that these “anecdotes are uncorroborated and not marketplace
confusion.”87 We agree.
None of the supposedly confused individuals was called as a witness and
questioned and cross-examined as to the circumstances surrounding their inquiry or
communication. Mini Melts, Inc. v. Reckitt Benskiser LLC, No. 91173963, 2016 WL
3915987, at *12 (TTAB 2015) (“Without direct testimony from [the inquiring]
individuals, there is insufficient information to ascertain what they were thinking, or
what caused the purported confusion.”); Couch/Braunsdorf Affinity, Inc. v. 12
84 Id. at 29 (citations omitted).
85 See Jain Decl., 10 TTABVUE 8, ¶ 36 (“On or about October 5, 2024 I was presenting at a
conference hosted by Longevity and was approached by a doctor attendee who asked if we
were affiliated with a wearable ring company after seeing our badge with the EVVY Mark on
it.”).
86 “On or about May 9, 2024 at an HTLH sessions event sponsored by Abridge, I was
mistakenly referred to as being from ‘Evie’ instead of ‘EVVY’.” Id. at ¶ 37.
87 Applicant’s Brief, 24 TTABVUE 33.

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Interactive, LLC, No. 92051006, 2014 WL 1390528, at *23-25 (TTAB 2014). This is
particularly problematic with respect to the first recounted incident of alleged actual
confusion. Opposer speculates that “obviously” the Longevity attendee was referring
to Applicant’s EVIE ring because of the similarity of the parties’ marks but evidence
of actual confusion “is too important to be established by means of an inference,
unsupported by corroborating evidence.” Couch/Braunsdorf Infinity, 2014 WL
1390528, at *26 (citation and quotation marks omitted). Moreover, Applicant’s
witness Ms. Bucher testified that there are “wearable bands [that] detect ovulation
and fertility and hot flashes and things like that,” one of which is branded EVA.88
This mark shares the “EV” prefix with Opposer’s mark and could be the “wearable”
device to which the Longevity attendee was referring.
As to the second purported instance of confusion, Ms. Jain testified that she was
“a guest on the CLITEROLOGY podcast and in a description of the podcast the EVVY
Mark was mistakenly written as EVIE.”89 A screenshot of the podcast description
shows that Ms. Jain is correctly referred to as the founder of EVVY and the podcast
description clearly references EVVY’s vaginal microbiome testing.90 The mark is
spelled correctly throughout the description with one exception:
Understanding the composition and health of the vaginal microbiome is
essential for women’s overall well-being. Advanced genomic sequencing,
88 Bucher Cross-Exam, 19 TTABVUE 51.
89 Jain Decl., 10 TTABVUE 9, ¶ 38.
90 Opposer’s NOR, 12 TTABVUE 156.

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like the technology used by Evie, can provide insights into the specific
bacteria, fungi, and microbiomes present in the vaginal environment.91
This context clearly supports that the reference to EVIE is merely a misspelling of
Opposer’s mark and not a reference to Applicant.92
The third highlighted instance of purported confusion also reflects a misspelling
and not actual confusion. An internet printout for the referenced HLTH session
correctly identifies Priyanka Jain as a representative from “EVVY” but in the body of
the description, Priyanka Jain is identified as a representative of EVIE. The
description of the session states: “The panel discussed the need for more investment
in women’s health,” which is an issue that is at the core of Opposer’s marketing of its
EVVY product.93
We now turn to Applicant’s argument under the eighth DuPont factor that “there
has been extensive opportunity for confusion, especially if the marks, goods, and
channels are truly as similar as Opposer suggests.”94 As Applicant acknowledges,
“[t]he absence of any reported instances of confusion is meaningful only if the record
indicates appreciable and continuous use by applicant of its mark for a significant
91 Id. (emphasis added).
92 Opposer also introduced two emails one referring to “evie.com” and another addressed “hi
Evie.” Jain Decl., 10 TTABVUE 8 and 79-80, ¶ 35 and Exhibit E. Opposer referenced these
emails only in its reply brief and Applicant argues that “such retroactive positioning should
not be permitted.” Applicant’s Brief, 24 TTABVUE 35. We consider the evidence, but as with
the podcast, the context of both emails reflects that both senders were referring to Opposer
and the reference to EVIE was a misspelling.
93 Jain Decl., 10 TTABVUE 6 and 22, ¶ 25 and Exhibit B; Opposer’s NOR, 12 TTABVUE 76,
78.
94 Applicant’s Brief, 24 TTABVUE 36.

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period of time in the same markets as those served by opposer under its marks.”
Citigroup Inc. v. Capital City Bank Grp., Inc., No. 91177415, 2010 WL 595586, at *17
(TTAB 2009). In other words, “for the absence of actual confusion to be probative,
there must have been a substantial opportunity for confusion to have occurred.”
Double Coin Holdings Ltd. v. Tru Dev., No. 91063808, 2019 WL 4877349, at * 11
(TTAB 2019).
The record reflects that the parties’ have promoted their products and received
third-party coverage but neither party has had particularly significant sales.95 Actual
purchasers of the parties’ products, of which there are few, would be more likely to
report instances of actual confusion rather than prospective consumers. Moreover,
Ms. Bucher clarified in her cross-examination deposition that while Applicant issued
a press release for its EVIE product on December 28, 2022, it did not make any sales
of the product until November 2023.96 In addition, Applicant paused sales for
approximately five months.97 Thus, as of the close of trial, the parties had
concurrently sold their goods for approximately one year or less.
Based on the record before us, we conclude that there has not been a meaningful
opportunity for actual confusion to have occurred.
95 Jain Decl., 11 TTABVUE 7, ¶ 29-20 (confidential); Bucher Cross-Exam, 20 TTABVUE 97
(confidential).
96 Bucher Cross-Exam, 19 TTABVUE 31-32; see also id. at 13-14 (testifying that Applicant
started taking preorders in November 2023 with some deliveries starting in January 2024).
97 Id. at 14.

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In sum, we find the seventh and eighth DuPont factors neutral. That said, the
evidence showing the misspelling of Opposer’s mark EVVY as EVIE lends support to
our finding that the parties’ marks are similar. Cf. Molenaar, Inc. v. Happy Toys, Inc.,
1975 WL 20853, at *2 (TTAB 1975)98 (“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.”’).
Variety of Goods and Services with which Opposer’s Mark is
or is not Used
Under the ninth DuPont factor, “[i]f a party in the position of plaintiff uses its
mark on a wide variety of goods, then purchasers are more likely to view a defendant’s
related good under a similar mark as an extension of the plaintiff’s line.” Dollar Fin.
v. Brittex Fin., 132 F.3d at 1373 (citation and quotation marks omitted). Opposer
argues that it “uses its EVVY Mark on a wide variety of goods and services in the
health and wellness space” citing paragraph 6 of the Jain Declaration.99
Given that Ms. Jain provided sales and customer figures only for its diagnostic
test kits and related testing and reporting services, we find that to the extent Opposer
98 The proceeding number for this case is not available.
99 Applicant also argues that “[b]y impeachment and/or estoppel Opposer should be
prohibited” from relying on paragraph 6 of the Jain Declaration because it “depart[s] so
severely from” Opposer’s response to Interrogatory No. 6 identifying a far narrower scope of
goods and services with which Opposer has used its EVVY mark. 24 TTABVUE 38. We do
not rule on this objection because even relying on the objected-to testimony, we find the ninth
factor neutral.

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is using the EVVY mark for all of the goods and services identified in paragraph 6 of
the Jain Declaration, such goods and services relate to Opposer’s diagnostic tests and
testing and reporting services. Based on the record, we decline to find that Opposer
users its EVVY mark with a wide range of goods and services. The ninth DuPont
factor neutral.
Market Interface between Applicant and Opposer
The parties agree that there is no market interface under the tenth factor, but
disagree as to the weight of this factor.100 Opposer asserts that the factor favors a
likelihood of confusion while Applicant contends the factor is neutral.101 We agree
with Applicant that the tenth factor is neutral. See, e.g., Bell’s Brewery, Inc. v.
Innovation Brewing, No. 91215896, 2017 WL 6525233, at *14 (TTAB 2017) (“To the
extent that any other du Pont factors for which no evidence was presented by
Applicant or Opposer nonetheless may be applicable, we treat them as neutral.”).
Extent to which Applicant has a Right to Exclude Others from Use
of its Mark
The eleventh DuPont factor concerns “[t]he extent to which applicant has a right
to exclude others from use of its mark on its goods.” 476 F.2d at 1361. Opposer argues
that because it has priority over Applicant, this factor weighs in its favor.102 Applicant
100 Opposer’s Brief, 22 TTABVUE 31-32; Applicant’s Brief, 24 TTABVUE 40.
101 Opposer’s Brief, 22 TTABVUE 31-32; Applicant’s Brief, 24 TTABVUE 40.
102 Opposer’s Brief, 22 TTABVUE 32.

Opposition No. 91287786
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argues that this factor “cannot favor Opposer” and “[a]t worst, this factor is
neutral.”103
Opposer’s priority over Applicant does not dictate a finding that the eleventh
factor favors Opposer. We find this factor neutral.
The Potential for Confusion
Under the twelfth DuPont factor, we consider “[t]he extent of potential confusion,
i.e., whether de minimis or substantial.” 476 F.2d at 1361. Opposer simply reiterates
its arguments under the second, third, fourth and seventh DuPont factors. Our
finding as to each of these factors stands on its own. We find the twelfth factor
neutral.
Any Other Established Fact Probative of the Effect of Use
Under the thirteenth DuPont factor, Applicant argues that it did not adopt the
EVIE mark in bad faith.104 While evidence of bad faith adoption of a mark typically
weighs in favor of a likelihood of confusion, the converse is not true. Eveready Battery
Co. v. Green Planet, Inc., No. 91180015, 2009 WL 2176668, at *5 (TTAB 2009). We
find this factor neutral.
103 Applicant’s Brief, 24 TTABVUE 41.
104 Applicant’s Brief, 24 TTABVUE 42.

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VI. Conclusion
Our final task is to weigh the DuPont factors for which there has been evidence
and argument in this proceeding and “explain the results of that weighing.” Charger
Ventures, 64 F.4th at 1384.
The parties’ marks and goods are similar and their trade channels and relevant
consumers overlap. Thus, the first, second, third and that portion of the fourth factor
concerning the buyers to whom the parties’ goods are sold weigh in favor of finding a
likelihood of confusion. The fifth DuPont factor also slightly weighs in favor of finding
a likelihood of confusion as the record supports that Opposer’s EVVY mark has some
emerging commercial strength.105
Factors six, seven, eight, nine, ten, eleven, twelve and thirteen are neutral.
That portion of factor four concerning the sophistication of relevant consumers
weighs slightly against finding a likelihood of confusion.
Weighing all of the DuPont factors, we find that the first, second, third, fifth and
that portion of the fourth factor concerning the buyers to whom the parties’ goods
outweigh the sophistication of the purchasers under the fourth DuPont factor.
Opposer has established by a preponderance of the evidence its entitlement,
priority and a likelihood of confusion as to Applicant’s goods in Classes 9 and 10.
105 Even if we were to find the fifth factor neutral, we would reach the same decision.

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Decision: The opposition is sustained as to Applicant’s goods in Classes 9 and 10.
The opposition is dismissed as to Applicant’s Class 35 services because Opposer
forfeited its claim as to this class.