One PytchBlack, LLC

This Opinion is not a
Precedent of the TTAB
Mailed: December 31, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re One PytchBlack, LLC
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Serial No. 98402385
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Brett M. Pinkus of Spencer Fane LLP for One PytchBlack, LLC.
Javier Jaramillo, Trademark Examining Attorney, Law Office 116,
Elizabeth Jackson, Managing Attorney.
_____
Before Wellington, Heasley, and Bradley,
Administrative Trademark Judges.
Opinion by Heasley, Administrative Trademark Judge:
Applicant, One PytchBlack, LLC, seeks registration on the Principal Register of
the mark PYTCHBLACK in standard characters for:
Advertising services, namely, creating corporate and brand identity for
others; Advertising services, namely, creating corporate logos for others;
Brand concept and brand development services for corporate and
individual clients; Brand evaluation services; Brand imagery consulting
services; Brand positioning services; Branding services, namely,
consulting, development, management and marketing of brands for
businesses and/or individuals; Marketing and branding services, namely,
providing customized communication programs to obtain consumer

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insights and develop branding strategies; Providing advertising services,
in International Class 35.1
The Examining Attorney has refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as used in
connection with these services, so resembles the following two registered marks,
owned by two different entities, as to be likely to cause confusion, to cause mistake,
or to deceive:
PITCH BLACK--U.S. Registration No. 6824901 (the ’901 Registration) in
standard characters for:
Arranging and conducting business competitions for entrepreneurs to
compete for coaching, connections, capital, marketing, legal, technology
and accounting support to facilitate business activities; Arranging and
conducting special events for business purposes, in International Class
035;2
and
PITCH BLACK--U.S. Registration No. 6920616 (the ‘616 Registration) in standard
characters for:
Entertainment media production services for motion pictures, television
and Internet; Entertainment services in the nature of development,
creation, production, distribution, and post-production of motion pictures,
television shows, multimedia entertainment content; Entertainment
1 Application Serial No. 98402385 was filed on February 12, 2024, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of first use anywhere and
use in commerce since at least as early as September 1, 2013.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system and identify the documents by title, date, and page in the
downloadable .pdf version. Citations to the briefs and other materials in the appeal record
refer to the Board’s TTABVUE online docket system.
2 Registration No. 6824901 issued on the Principal Register on August 23, 2022, under
Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on the Registrant’s claim of
first use anywhere as of September 1, 2020 and use in commerce since at least as early as
November 1, 2020.

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services in the nature of production of motion pictures, television shows,
multimedia entertainment content, in International Class 041.3
When the refusal was made final, Applicant appealed.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act provides that a mark may be refused
registration if it:
[c]onsists of or comprises a mark which so resembles a mark registered in
the Patent and Trademark Office, or a mark or trade name previously used
in the United States by another and not abandoned, as to be likely, when
used on or in connection with the goods [or services] of the applicant, to
cause confusion, or to cause mistake, or to deceive….
15 U.S.C. § 1052(d).
Section 2(d) implements “a basic function of trademark law[, which] has always
been to ‘prohibi[t] confusion as to the source of good or services.’ [B. Pattishall, THE
CONSTITUTIONAL FOUNDATIONS OF AMERICAN TRADEMARK LAW, 78 Trademark Rep.
456, at 458 (1988)]; see also Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599
U.S. 140, 147, 143 S. Ct. 1578, 216 L.Ed.2d 161 (2023) (‘Confusion as to source is the
bête noire of trademark law’).” Vidal v. Elster, 602 U.S. 286, 300 (2024).
To determine whether there is a likelihood of confusion between marks under
Section 2(d), we analyze the evidence and arguments under the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (the “DuPont
factors”) cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015).
“Whether a likelihood of confusion exists between an applicant’s mark and a
3 Registration No. 6920616, issued on the Principal Register Dec. 13, 2022, under Section 1(a)
of the Trademark Act, 15 U.S.C. § 1051(a), based on the Registrant’s claim of first use
anywhere and use in commerce since at least as early as July 31, 2020.

Serial No. 98402385
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previously registered mark is determined on a case-by-case basis, aided by
application of the thirteen DuPont factors.” Omaha Steaks Int’l, Inc. v. Greater
Omaha Packing Co., 908 F.3d 1315, 1319 (Fed. Cir. 2018). “The Board need not
consider every DuPont factor, only those ‘that are relevant and of record.’ M2
Software, 450 F.3d at 1382.” Dollar Fin. Grp., Inc. v. Brittex Fin., Inc., 132 F.4th 1363,
1371 (Fed. Cir. 2025). “The weight given to each factor depends on the circumstances
of each case.” In re Charger Ventures LLC, 64 F.4th 1375, 1381 (Fed. Cir. 2023). Two
weighty factors are the similarities of the marks and the relatedness of the goods or
services. See Bullshine Distillery LLC v. Sazerac Brands, LLC, 130 F.4th 1025, 1033
(Fed. Cir. 2025).
A. Similarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s PYTCHBLACK mark and the registered PITCH BLACK marks in their
entireties, taking into account their appearance, sound, connotation and commercial
impression. DuPont, 476 F.2d at 1361. “Similarity in any one of these elements may
be sufficient to find the marks confusingly similar.” Look Cycle Int’l v. Kunshan Qiyue
Outdoor Sports Goods Co., No. 92079409, 2024 WL 3739358, *8 (TTAB 2024) (citing
inter alia Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968)
(“It is sufficient if the similarity in either form, spelling or sound alone is likely to
cause confusion.”)). “[T]he ‘similarity or dissimilarity of the marks in their entireties’
is a predominant inquiry.” Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156,
[1165] (Fed. Cir. 2002).” Heil Co. v. Tripleye GmbH, No. 91277359, 2024 WL 4925901,
*29 (TTAB 2024).

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Applicant argues that the marks are distinguishable in sight and meaning.
“Regarding sight,” Applicant argues, “‘PYTCHBLACK’ is one word whereas the Cited
Registrations are split in two words ‘PITCH’ and ‘BLACK’ with one space in between.
A single word has a decidedly different appearance than two or more words.”4
“Moreover,” Applicant continues, “Appellant’s Mark and the Cited Registrations are
spelled differently, with Appellant’s Mark intentionally including an unusual
misspelling by replacing the ‘I’ with a ‘Y,’ which represents Appellant’s last name
‘Yanez.’”5 Applicant concludes that the marks are visually different: “Mark
dissimilarity has been found when the words are spelled differently, including when
a mark is spelled differently with an ‘I’ or a ‘Y’ and when a mark is a compound word
rather than two words.”6
The case law on which Applicant relies is inapposite, as the marks those cases
consider involve far larger differences in sight and sound. E.g., Champagne Louis
Roederer, S.A. v. Delicato Vineyards, 148 F.3d 1373, 1374-75 (Fed.Cir. 1998) (finding
dissimilarity between CRISTAL and CRYSTAL CREEK); In re Hearst Corp., 982 F.2d
493, 1239 (Fed. Cir. 1992) (VARGA GIRL and VARGAS not confusingly similar
because “[T]he appearance, sound, sight, and commercial impression of VARGA GIRL
derive significant contribution from the component ‘girl’”).7
We find that Applicant’s PYTCHBLACK mark, which differs from the cited
PITCH BLACK marks by one minor misspelling and the omission of a space, is
4 Applicant’s main brief, 3 TTABVUE 13.
5 Id.
6 Applicant’s reply brief, 8 TTABVUE 3.
7 See Applicant’s main brief, 3 TTABVUE 12; Applicant’s reply brief, 8 TTABVUE 3

Serial No. 98402385
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nonetheless similar to the cited marks in sight and very similar, if not the same, in
sound. Applicant does not dispute that the marks could be pronounced the same or
very similarly. In re Viterra Inc., 671 F.3d 1358, 1367 (Fed. Cir. 2012) (“any minor
differences in the sound of these marks may go undetected by consumers”). See
RE/MAX of Am., Inc. v. Realty Mart, Inc., 1980 WL 30159, * 5 (TTAB 1980)
(“Turning first to the similarities between the respective marks, we note that
applicant’s mark ‘REMACS’ and the mark of opposer, namely ‘RE/MAX’ are
indistinguishable in sound; and it has been consistently held that similarity in any
one of the elements of sound, appearance or meaning is sufficient to indicate a
likelihood of confusion.”).
In sight, the Examining Attorney notes, “the marks consist of the similar terms
PYTCH/PITCH and the identical term BLACK.”8 We regard this as a slight
misspelling, differing by one letter, which does not usually distinguish marks. Mag
Instr. Inc. v. Brinkmann Corp., No. 91163534, 2010 WL 3253200, *13 (TTAB 2010)
(difference of a single letter does not distinguish MAG STAR from MAXSTAR). “Bad
orthography has not yet become so rare or so easily detected as to make a word the
arbitrary sign of something else than its conventional meaning ….” Std. Paint Co. v.
Trinidad Asphalt Co., 220 U.S. 446, 455 (1911).
Furthermore, the absence of a space between PYTCH and BLACK in Applicant’s
mark does not meaningfully distinguish it from the registered PITCH BLACK marks.
See, e.g., Seaguard Corp. v. Seaward Int’l, Inc., 1984 WL 62803, *3 (TTAB 1984)
(“[T]he marks ‘SEAGUARD’ and ‘SEA GUARD’ are, in contemplation of law,
8 Examining Attorney’s brief, 6 TTABVUE 5.

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identical.”) (internal citation omitted); Stock Pot, Inc., v. Stockpot Rest., Inc., 1983 WL
51866, *2 (TTAB 1983) (“There is no question that the marks of the parties
[STOCKPOT and STOCK POT] are confusingly similar. The word marks are
phonetically identical and visually almost identical.”), aff’d, 737 F.2d 1576 (Fed. Cir.
1984). So too here.
In terms of connotation and commercial impression, Applicant argues that
“PITCH BLACK is a descriptive idiom for total darkness. PYTCHBLACK, by
contrast, is an invented brand name connoting big ideas with creativity and
originality, and which also evokes modern, sleek, bold, powerful, and standout
branding.”9
“But as we have previously found in a likelihood of confusion analysis, an
applicant or registrant’s intended interpretation of the mark is not necessarily the
same as the consumer’s perception of it.” In re Yale Sportswear Corp., No. 78653373,
2008 WL 2675684, *4 (TTAB 2008) (citing Interpayment Servs. Ltd. v. Docters &
Thiede, No. 119852, 2003 WL 880552, *2 (TTAB 2003) (“it does not matter what
applicant’s intentions were in creating its mark or what its characterization of its
mark is.”). “Pitch-black” means “extremely dark; black as pitch.”10 And given the
marks’ phonetic equivalence and visual similarity, we agree with the Examining
Attorney that consumers are likely to regard “each mark [as] convey[ing] the same
mental impression of extreme darkness.”11
9 Applicant’s reply brief, 8 TTABVUE 4.
10 AHDictionary.com, Sept. 5, 2024 Office Action at 14.
11 Examining Attorney’s brief, 6 TTABVUE 5.

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In sum, as the Examining Attorney observes, “[t]he marks still share the same
sound, very similar appearances, and the same meaning.”12 We agree. The marks,
taken in their entireties, are similar in sight, sound, connotation, and commercial
impression, and the first DuPont factor weighs heavily in favor of finding a likelihood
of confusion.
B. Relatedness of the Services, Channels of Trade, and Classes of
Customers
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration…,” and the third
DuPont factor concerns the “similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 476 F.2d at 1361.
Under the second factor, the greater the degree of similarity between the
applicant’s mark and the registered marks, the lesser the degree of similarity
between the respective services required to support a finding of likelihood of
confusion. See In re Thor Tech, No. 78634024, 2009 WL 1098997, *2 (TTAB 2009).
The issue is not whether the services will be confused with one another, but rather
whether the public will be confused as to their source. See Recot Inc. v. M.C. Becton,
214 F.3d 1322, 1329 (Fed. Cir. 2000) (“[E]ven if the goods [or services] in question are
different from, and thus not related to, one another in kind, the same goods [or
services] can be related in the mind of the consuming public as to the origin of the
goods [or services]. It is this sense of relatedness that matters in the likelihood of
confusion analysis.”).
12 Examining Attorney’s brief, 6 TTABVUE 6.

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The relatedness of services may be proven by various means. It may be proven,
for example, by the involved recitations of services, which can show on their face that
the services are related, or by evidence of third-party uses or registrations showing
that the respective sorts of services are commonly offered by the same entity under
the same mark.
Evidence of relatedness may include news articles or
evidence from computer databases showing that the
relevant goods [or services] are used together or used by
the same purchasers; advertisements showing that the
relevant goods [or services] are advertised together or sold
by the same manufacturer or dealer; or copies of prior use-
based registrations of the same mark for both applicant’s
goods [or services] and the goods [or services] listed in the
cited registration. … In addition, the application and
registration themselves may provide evidence of the
relationship between the [goods or] services.
In re OSF Healthcare Sys., No. 88706809, 2023 WL 6140427, *4 (TTAB 2023)
(internal punctuation and citations omitted).
In this case, the Application recites in pertinent part “Branding services, namely,
consulting, development, management and marketing of brands for
businesses and/or individuals; …; Providing advertising services.” (Emphasis
added.) The ‘901 Registration recites in pertinent part “Arranging and conducting
special events for business purposes.” (Emphasis added.) And the ’616
Registration recites in pertinent part “Entertainment media production services for
motion pictures, television and Internet; … Entertainment services in the nature
of production of motion pictures, television shows, multimedia
entertainment content.” (Emphasis added.) The issue is whether these services

Serial No. 98402385
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can be related in the mind of the consuming public as to their origin. Recot v. Becton,
214 F.3d at 1329. The ’901 Registration
Comparing the Application with the ’901 Registration, the Examining Attorney
adduces third-party use and registration evidence to show that entities that provide
branding, marketing and advertising services also arrange and conduct special
events for business purposes. Specifically, the Examining Attorney submits eleven
such third-party uses.13 For example:
• Easton Advertising – Offering brand development, print advertising, and
digital marketing, as well as event planning and marketing, such as product
launches, trade shows, grand openings, fundraisers, charity events, corporate
retreats, media events and other corporate events (Sept. 5, 2024 Office Action
at 16-26);
• KMC --
(Sept. 5, 2024 Office Action at 27);
13 Sept. 5, 2024 Office Action at 16-47; Feb. 4, 2025 Office Action at 18-154.

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• Paragon Events –
((Sept. 5, 2024 Office Action at 29-46);
● Communications Group -- Providing branding services, advertising
services, and corporate event support services, including event planning and
management (Feb. 4, 2025 Office Action at 18-40);
• Impact Marketing – Offering as its services branding and corporate identity,
logo creation, brand identity consulting, digital marketing, advertising, and
business event planning (Feb. 4, 2025 Office Action at 42-51).
To this, the Examining Attorney adds fifteen use-based, third-party marks
encompassing both sorts of services.14 For example:
14 Feb. 4, 2025 Office Action at 155-182.

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Mark & Registration No. Pertinent Services
PNEUMA33
Reg. No. 6644366
Branding, Marketing, and advertising services;
arranging and conducting special events for business
purposes.
ADDELISE
Reg. No. 5375190
Advertising and marketing consultancy; Arranging
and conducting special events for business purposes;
Branding services, namely consulting, development,
management and marketing of brands for businesses
and/or individuals.
AYDEA
Reg. No. 7344430
Advertising services; Advertising services to create
brand identity for others; Advertising and marketing
services, namely, promoting the goods and services of
others; Arranging and conducting special events for
business purposes.
COFFEE ‘N CLOTHES
Reg. No. 5771606
On-line advertising and marketing services;
Arranging and conducting special events for
commercial, promotional or advertising purposes.
PINK MONKEY
Reg. No. 6254919
Advertising, marketing and promotion services,
namely, promoting the goods and services of others by
providing customized exhibits; Arranging and
conducting special events for business purposes.
T&C REMIX
Reg. No. 7081838
Promoting, advertising and marketing of the brands,
products, services and online websites of individuals,
businesses and nonprofit organizations; Arranging
and conducting special events for business purposes.
This evidence shows how companies that conduct brand advertising and
marketing often arrange and conduct special events for business purposes—events
such as trade shows, product launches, charity events, and corporate events—as part
and parcel of their promotional services.

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The ’616 Registration
So too with the ‘616 Registration, for, in pertinent part, “Entertainment media
production services for motion pictures, television and Internet; …; Entertainment
services in the nature of production of motion pictures, television shows,
multimedia entertainment content.” The Examining Attorney adduces third-
party uses and registrations showing how production companies that produce
multimedia entertainment content also produce promotional videos for brand
advertising and marketing.
Specifically, the Examining Attorney submits ten such third-party uses.15 For
example:
• Blackburst –
(Sept. 5, 2024 Office Action at 49);
15 Sept. 5, 2024 Office Action at 48-142; Feb. 4, 2025 Office Action at 183-246.

Serial No. 98402385
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• C-Studios --
“We specialize in solving complex marketing challenges using original media content
of the highest quality.” (Sept. 5, 2024 Office Action at 59-92);
• ClickPlayFilms –

Serial No. 98402385
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(Sept. 5 2024 Office Action at 94-123);
• OldStoneFilms – “As a filming agency, Old Stone Pictures produces all types
of documentaries, short films, feature films, commercial, corporate, social,
digital and mobile videos for companies, agencies, brands, organizations,
nonprofits, startups and businesses across all industries.” (Sept. 5 2024 Office
Action at 124-142);
• Blare Media –
“BLARE Media is a production company that stands out in the industry for its
exceptional quality and passion for creating exceptional movies and music videos.”

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“BLARE Media is a professional video production agency that provides internet
marketing and video marketing services to help businesses achieve their goals.”16
The Examining Attorney also attaches fifteen use-based third-party registrations
to further show the relatedness of the services.17 For example:
Mark & Registration No. Pertinent Services
YOUNG HERO & Design
Reg. No. 7207281
Branding services, namely, consulting, development,
management and marketing of brands for businesses
and/or individuals; Production of advertising matter
and commercials, in Class 35.
Entertainment services in the nature of production of
motion pictures, television shows, multimedia X
entertainment content, in Class 41.
GNOMISH HAT
Reg. No. 5917754
Brand concept and brand development services for
corporate and individual clients; Development of
marketing strategies, concepts and tactics, namely,
audience development, brand awareness, customer
relations, online community building and digital word
of mouth communications; Product merchandising for
others, in Class 35.
Entertainment media production services for motion
pictures, television and the internet, in Class 41.
WRONG
Reg. No. 5818399
Advertising services; Brand concept and brand
development for corporate clients and individual
clients; Advertising services, namely, creating
corporate and brand identity for others, in Class 35.
Entertainment media production services for motion
pictures, television and Internet; Production of
independent motion pictures, television programs,
documentaries and audio and video recordings;
Entertainment services, namely, multimedia
production services, in Class 41.
16 Feb. 4, 2025 Office Action at 183-220.
17 Feb. 4, 2025 Office Action at 247-276.

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NURV
Reg. No. 5621804
Advertising agency services; Branding services,
namely, consulting, development, management and
marketing of brands for businesses and/or
individuals; Production of film and television
advertising; Promoting, advertising and marketing of
the brands, products, services and online websites of
individuals, businesses and nonprofit organizations,
in Class 35.
Entertainment media production services for motion
pictures, television and Internet; Multimedia
entertainment services in the nature of development,
production and post-production services in the fields
of video and films, in Class 41.
SOCKEYE
Reg. No. 7605511
Advertising services, namely, creating a corporate
and brand identity for others; Advertising services to
create a brand identity for others, in Class 35.
Video production services; Entertainment services in
the nature of development, creation, production, and
post-production services of multimedia
entertainment content, in Class 41.
This evidence shows how the same production company can often produce brand
advertising as well as multimedia entertainment. The respective services are merely
different subject matters that can often emanate from the same producer under the
same mark. The third-party use and registration evidence shows how the services are
related in kind. See Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267
(Fed. Cir. 2002) (“whether a single company sells the goods and services of both
parties, if presented, is relevant to a relatedness analysis….”), quoted in DeVivo v.
Ortiz, No. 91242863, 2020 WL 1227592, *14 (TTAB 2020) (““third-party registrations
may serve to suggest that the parties’ goods and services are of a type which may
emanate from a single source.”).
Applicant attempts to limit the reach of the cited Registrations by citing extrinsic

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evidence: the declaration of its founder and managing partner, Andrew Yanez:
The ‘901 Registration is owned by the Midlands African Chamber, Inc.,
which is a chamber of commerce that organizes a business competition
called the Pitch Black Conference to promote entrepreneurship in diverse
communities in the Midwest for aspiring Black, Indigenous, and other
People of Color and immigrant/refugee entrepreneurs. 18
According to Applicant, the Registrant of the ‘901 Registration, Midlands African
Chamber, does not provide advertising, branding, or marketing services, and
Applicant does not conduct special events for business purposes, so “[t]here would not
be any overlap of consumers for these services.”19 Moreover, Applicant contends that
the owner of the ‘616 Registration “does not provide advertising, branding, or
marketing services [and Applicant] does not create nor does the Pending Application
claim to provide entertainment content for motion pictures, television shows, or
streaming media.”20
Applicant concludes that “[t]he services provided under the Appellant’s Mark and
the Cited Registrations are not in direct competition.”21 Moreover, it asserts, “the
Examiner’s cited third-party evidence reflects large agencies with broad offerings—
not evidence of ordinary marketplace expectations.”22
We disagree. “The services need not be identical or even competitive to find a
likelihood of confusion. … They need only be related in some manner and/or if the
18 Applicant’s main brief, 4 TTABVUE 15 citing Yanez Decl. at ¶ 16, Dec. 5, 2024 Response
to Office Action at 27-28.
19 Id.
20 Id., citing Yanez Decl at ¶17, Dec. 5, 2024 Response to Office Action at 28.
21 Applicant’s main brief, 4 TTABVUE 15.
22 Applicant’s reply brief, 8 TTABVUE 4.

Serial No. 98402385
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circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that [they] emanate from the same source.” OSF Healthcare, 2023
WL 6140427, at *4 (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
1356, 1369 (Fed. Cir 2012); In re Country Oven, Inc., No. 87354443, 2019 WL 6170483
at *2 (TTAB 2019) (internal punctuation and citations omitted)).
Applicant cannot limit the reach of the cited Registrations by reference to extrinsic
evidence:
In innumerable cases, the Board hears arguments about how the parties’
actual goods, services, customers, trade channels, and conditions of sale
are narrower or different from the goods and services identified in the
applications and registrations,” but “as stated in equally innumerable
decisions of our primary reviewing court, we may consider any such
restrictions only if they are included in the identification of goods or
services.
In re FCA US, LLC, 2018 WL 1756431, *4 n.18 (TTAB 2018), aff’d 778 Fed. Appx.
962 (Fed. Cir. 2019).
Applicant’s recitation of services includes the broadly phrased “providing
advertising services,” which are presumed to encompass all services of the type
identified, Southwestern Mgmt., Inc. v. Ocinomled, Ltd., 2015 WL 4464550, *17
(TTAB 2015). As the third-party evidence demonstrates, companies provide
advertising by many means, including special business events (such as trade shows,
product launches, and the like); and production companies that produce
entertainment media also produce promotions advertising businesses’ goods and
services. The third-party companies to which the Examining Attorney refers appear
to be of various sizes, and Applicant does not adduce competent evidence supporting
its assertion that these third-parties are large agencies with particularly broad

Serial No. 98402385
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offerings. See In re Ox Paperboard, LLC, No. 87847482, 2020 WL 4530517 *17 (TTAB
2020) (“[T]he fact that more targeted sellers offer goods [or services] of both the
Registrant and the Applicant tells us that the goods [or services] are related.”).
The phrasing of the recitations of services, supported by the third-party use and
registration evidence, show that Applicant’s services are indeed related to
Registrant’s services.
The third DuPont factor regarding channels of trade and classes of consumers
must be assessed, like the second, according to the identifications of the respective
services in the subject Application and Registrations. Because the relevant services
are unrestricted as to trade channels and classes of purchasers, we must presume
that they travel in the ordinary trade and distribution channels for the services and
to all usual classes of consumers. In re Samsung Display Co., Ltd., 2024 WL 3451873,
*8 (TTAB 2024). The third-party Internet evidence set out above reflects that the
services are promoted and offered together, through the same websites and business
establishments, and the services reach the same classes of consumers—in this case,
businesses of all sizes and individuals, as well. In re Charger Ventures, 64 F.4th at
1382 (“Because the record shows that companies are known to offer both … services
under the same mark and, often, on the same website, we find that substantial
evidence supports the Board’s finding on these factors.”); In re Toshiba Med. Sys.
Corp., No. 79046106, 2009 WL 1896059, *7 (TTAB 2009) (website evidence shows
same or overlapping channels of trade and classes of customers).

Serial No. 98402385
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The second and third DuPont factors thus weigh in favor of finding a likelihood of
confusion, with respect to services in both of the cited registrations vis-à-vis those in
the application, as well as the trade channels for those services.
C. Customer Sophistication and Care
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361.
Applicant takes the position that:
The consumers who utilize Appellant’s advertising, branding, or marketing
services, the business competition or event services of the Pitch Black
Conference, and the movie or content production services of the Pitch Black
Company are highly sophisticated, professional or corporate consumers,
who are more discerning and will exercise high degree of care and engage
in a fairly lengthy and involved process of communication with a provider
in making the selection of these services, which requires a significant
investment of the consumers’ money and time.23
Applicant’s witness emphasizes that “Applicant’s consumers are sophisticated and
work closely with Applicant in the production of advertising, b[r]anding, and
marketing content for the consumers’ own services.”24
However, because Applicant’s recited services are unrestricted, and include the
broadly phrased “providing advertising services,” we find that such services could be
provided to a decidedly mixed group of customers, some seasoned professionals, and
others novice, first-time entrepreneurs. “When a buyer class is mixed, the standard
of care to be exercised by the reasonably prudent purchaser will be equal to that of
23 Applicant’s main brief, 4 TTABVUE 16.
24 Yanez decl. ¶ 15, Dec. 5, 2024 Response to Office Action at 27.

Serial No. 98402385
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the least sophisticated consumer in the class.” Stone Lion Cap. Partners, L.P. v. Lion
Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (quoting Ford Motor Co. v. Summit
Motor Prods., Inc., 930 F.2d 277, 293 (3d Cir.1991)). And while Applicant’s
performance of its services may involve a lengthy investment of time collaborating
with its customers, there is no indication that the customers’ selection of its services
is so prolonged.
In any event, “with identical or similar marks used on such goods, even a careful,
sophisticated consumer of these goods is likely to believe that the goods emanate from
a common source. … In other words, even careful purchasers who do notice the
difference in the marks will not ascribe it to differences in the source of the goods, but
will see the marks as variations of each other, pointing to a single source.” In re I-
Coat Co., LLC, No. 86802467, 2018 WL 2753196, * 11 (TTAB 2018) (internal citation
omitted).
On the whole, the nature of the services, given the commitment of money and time
involved, would naturally tend to encourage care on customers’ part, but that care,
and any sophistication, would tend to be vitiated by the other aforementioned
concerns. Consequently, we find that the fourth DuPont factor weighs only slightly
against a likelihood of confusion.
D. The Strength or Weakness of the Registered Marks
Under the fifth and sixth DuPont factors, we consider the strength of the cited
registered mark, and the extent to which that strength may be attenuated by “[t]he
number and nature of similar marks in use on similar goods [or services].” DuPont,
476 F.2d at 1361. In an ex parte appeal such as this, the Examining Attorney is not

Serial No. 98402385
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expected to adduce evidence of the strength of the cited registered marks, which is
presumptively treated as neutral. In re Mr. Recipe, LLC, No. 86040643, 2016 WL
138073, *2 (TTAB 2016).
The applicant, however, may adduce evidence under the sixth DuPont factor to
show that the cited mark is comparatively weak, conceptually or commercially, and
has a “comparatively narrower range of protection.” Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 1338 (Fed. Cir. 2015). Applicant here avails itself of this
opportunity, submitting eleven third-party registrations and nine third-party uses in
which PITCH BLACK forms all or part of the third party’s mark. The third-party
registrations, summarized in Applicant’s table, are:

Serial No. 98402385
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25
25 Applicant’s main brief, 4 TTABVUE 17-18, Dec. 5, 2024 Response to Office Action at 28-
30, 155-158 (third-party registrations), Yanez decl. (misnumbered ¶¶ 17-18, actually ¶¶ 19-
20).

Serial No. 98402385
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To this, Applicant adds evidence of nine third-party uses, encapsulated in a table:
26
In evaluating the strength or weakness of cited registered marks, we customarily
look at the marks’ inherent conceptual strength, based on the nature of each mark,
and the marks’ commercial strength in the marketplace. Spireon Inc. v. Flex Ltd., 71
F.4th 1355, 1362 (Fed. Cir. 2023); Look Cycle Int’l v. Kunshan Qiyue Outdoor Sports
Goods Co., No. 92079409, 2024 WL 3739358, *6 (TTAB 2024).
26 Applicant’s main brief, 4 TTABVUE 19, Dec. 5, 2024 Response to Office Action at 29-31,
166-211 (third-party uses) [Yanez decl. misnumbered ¶ 19, actually ¶ 21].

Serial No. 98402385
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Applicant, however, focuses entirely on the commercial strength or weakness of
Registrant’s marks, arguing that “Consumers of the services of Appellant and the
Cited Registrations will be able to distinguish even ‘minute distinctions’ between
Appellant’s Mark “PYTCHBLACK” from the use of the mark “PITCH BLACK” based
on the established third-party use of similar marks which all use the conventional
two-word spelling. See, e.g., Juice Generation, Inc., 794 F.3d at 1338–39.”
For the sake of completeness, we preface our consideration of Applicant’s
argument with the observation that the cited marks are registered on the Principal
Register without a claim of acquired distinctiveness, so they are presumed to be
inherently distinctive for the services for which they are registered. Trademark Act
Section 7(b), 15 U.S.C. § 1057(b); Brooklyn Brewery Corp. v. Brooklyn Brew Shop,
LLC, 17 F.4th 129, 147 n.7 (Fed. Cir. 2021) (noting the presumption that a registered
mark is distinctive).
With respect to commercial strength or weakness—the point on which Applicant
focuses—“[t]he purpose of introducing evidence of third-party marketplace use is ‘to
show that customers have become so conditioned by a plethora of such similar marks
that customers ‘have been educated to distinguish between different [such] marks on
the bases of minute distinctions.’ Omaha Steaks Int’l. v. Greater Omaha Packing Co.,
908 F.3d 1315 (Fed. Cir. 2018)] (quoting Palm Bay [Imps. v. Veuve Clicquot Ponsardin
Maison Fondee en 1772, 396 F.3d 1369 (Fed. Cir. 2005)].” Heil Co. v. Tripleye GmbH,
2024 WL 4925901, at *21.
Applicant’s third-party registrations are ill-suited to show the extent of their use
in the marketplace. The “existence of [third-party] registrations is not evidence of

Serial No. 98402385
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what happens in the market place or that customers are familiar with them....” AMF
Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403, 1406 (CCPA 1973), cited in In re
Morinaga Nyugyo Kabushiki Kaisha, No. 86338392, 2016 WL 5219811, *8 (TTAB
2016) (“But Applicant’s citation of third-party registrations as evidence of market
weakness is unavailing because third-party registrations standing alone, are not
evidence that the registered marks are in use on a commercial scale, let alone that
consumers have become so accustomed to seeing them in the marketplace that they
have learned to distinguish among them by minor differences.”)
Applicant’s third-party use evidence fares no better. In Juice Generation, on which
Applicant relies, and in its counterpart, Jack Wolfskin Ausrustung Fur Draussen
GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 1374 (Fed. Cir.
2015), the evidence demonstrated ubiquitous and considerable use of “third-party
marks for the same or similar goods.” In re i.am.symbolic, llc, 866 F.3d 1315, 1328
(Fed. Cir. 2017). Here, in contrast, the vast majority of Applicant’s third-party
registration and use evidence covers goods such as soft drinks, coffee and tea, wines,
candy, dietary and nutritional supplements, awnings and fabrics for windows, paint,
bowling balls, and clothing and shoes, that are clearly unrelated to the services in either
of the cited registrations. Applicant has provided no explanation or evidence showing how
these disparate goods support a finding that Registrants’ marks are weak with respect
to the services recited in their registrations. Id., cited in Tao Licensing, LLC v. Bender
Consulting Ltd., No. 92057132, 2017 WL 6336243, *16 (TTAB 2017).
That leaves two third-party uses: PITCH BLACK RECORDS for a music label for
producing and organizing music and music concerts for heavy and power metal, and

Serial No. 98402385
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PITCH BLACK for a movie involving “creatures lurking in the dark.”27 These two
uses bear at least some relationship to the ‘616 Registration’s multimedia
entertainment services. But Applicant “did not show how long or how extensively
these apparent third-party marks have been used. We have no sense of the degree of
consumer exposure to these marks.” Id. at *15. “As this court has previously
recognized where the “record includes no evidence about the extent of [third-party]
uses ... [t]he probative value of this evidence is thus minimal.” Han Beauty, Inc. v.
Alberto–Culver Co., 236 F.3d 1333, 1338 (Fed. Cir. 2001) (emphasis added).” Palm
Bay v. Veuve Clicquot, 396 F.3d at 1373–74. And two scattered terms, one used in a
descriptive sense to describe the setting of a movie, hardly constitute the “ubiquitous”
or “considerable” third-party use required to demonstrate the weakness of the cited
Registered marks. In re i.am.symbolic, 866 F.3d at 1328. Applicant thus fails to prove
third-party use so extensive that the relevant public would be conditioned to distinguish
the marks based of minute differences.
The fifth and sixth DuPont factors are neutral.
E. Lack of Evidence of Actual Confusion
The eighth DuPont factor considers “the length of time during and conditions
under which there has been concurrent use without evidence of actual confusion.”
DuPont, 476 F.2d at 1361.
Applicant’s founder avers that Applicant has used its mark in commerce in
connection with its services since at least as early as September 1, 2013, and that this
27 Dec. f5, 2024 Response to Office Action at 173.

Serial No. 98402385
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use has coexisted with Registrants’ use of their marks for five years, since their stated
first use dates in 2020.28 This coexistence, without evidence of actual confusion,
“undermines the Examining Attorney’s likelihood of confusion theory,” according to
Applicant.29
A showing of actual confusion may be highly probative of a likelihood of confusion.
In re Majestic Distilling Co., 315 F.3d 1311, 1317 (Fed. Cir. 2003). Yet the opposite is
not true; an absence of evidence of actual confusion carries little weight. J. C. Hall
Co. v. Hallmark Cards, Inc., 340 F.2d 960, 964 (CCPA 1965). “[U]ncorroborated
statements of no known instances of actual confusion are of little evidentiary value.”
Majestic Distilling, 315 F.3d at 1317 (citing In re Bissett–Berman Corp., 476 F.2d 640,
642 (CCPA 1973) (stating that self-serving testimony of appellant's corporate
president's unawareness of instances of actual confusion was not conclusive that
actual confusion did not exist or that there was no likelihood of confusion)). “[I]n this
ex parte context, there has been no opportunity to hear from Registrant[s] about
whether [they are] aware of any reported instances of confusion. We therefore are
getting only half the story.” In re Guild Mort. Co., No. 86709944, 2020 WL 1639916,
* 9 (TTAB 2020).
Applicant’s half of the story is insufficient to carry the day. Its founder avers that
Applicant “Pytchblack has become an established, successful, and well-respected
advertising marketing, and branding agency with clients across the country….”30 And
28 Applicant’s main brief, 4 TTABVUE 20, Yanez decl. ¶¶ 7, 8, 13, 16 (actually ¶ 18).
29 Applicant’s reply brief, 8 TTABVUE 6.
30 Applicant’s main brief, 4 TTABVUE 20 (citing Yanez Decl. at ¶12), Dec. 5, 2024 Response
to Office Action at 26.

Serial No. 98402385
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it has publicized its services via its website and Facebook since 2013.31 But this tells
less than half the story. We are left to guess at the extent of Applicant’s sales and
provision of its services, either as a whole or annually. We are given no indication of
the extent of Registrants’ sales or advertising of their services during the relevant
five-year period of coexistence.
Furthermore, contemporaneous use for a longer period than five years has been
deemed insufficient under the eighth DuPont factor. Barbara’s Bakery v. Landesman,
2007 WL 196406, *5 (TTAB 2007) (where the respective marks coexisted in the
marketplace for at least nine years, absence of actual confusion nonetheless deemed
“of little probative value” because of the absence of a significant opportunity for such
confusion to occur, given “the minimal scope of applicant’s actual use of her mark in
the marketplace. In the absence of a significant opportunity for actual confusion to
have occurred, the absence of actual confusion is of little probative value in this
case.”).
Here, as there, Applicant has not demonstrated a meaningful opportunity for
confusion to have occurred. Accordingly, its founder’s self-serving declaration of an
absence of actual confusion is of little or no probative value. The eighth DuPont factor
is neutral.
F. Applicant’s Prior Registration
The thirteenth and final DuPont factor pertains to “any other established fact
probative of the effect of use.” DuPont, 476 F.2d at 1361. “Rarely invoked, this factor
accommodates the need for flexibility in assessing each unique set of facts….” In re
31 Yanez decl. ¶¶ 9-11, Dec. 5, 2024 Response to Office Action at 26.

Serial No. 98402385
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Country Oven, Inc., No. 87354443, 2019 WL 6170483, *8 (TTAB 2019) (quoting In re
Strategic Partners Inc., No. 77903451, 2012 WL 1267930, *2 (TTAB 2012).
Applicant argues that “[Applicant’s] prior and substantially exclusive and
continuous use of the mark predates the earliest use in commerce of the ‘PITCH
BLACK’ marks of the Cited Registrations, which establish Appellant as the prior
user.”32
As the Examining Attorney correctly observes, though,33 an applicant’s assertion
of priority of use is given no consideration in an ex parte proceeding when registration
has been refused under Section 2(d) of the Act in view of subsisting registrations.
“[T]he question of priority of use is not germane to applicant’s right to register in this
ex parte proceeding. … It is evident that [Applicant], in emphasizing its asserted
priority of use in advertising and in speaking in terms of antedating the reference
mark, is in effect collaterally attacking the validity and ownership of that registration
without instituting formal cancellation proceedings under 15 U.S.C. § 1064 on
whatever grounds, if any, may be available to it at this date. … The present ex parte
proceeding is not the proper forum from which to launch such an attack.” In re Calgon
Corp., 435 F.2d 596, 598 (CCPA 1971), quoted in In re Detroit Athletic Co., 903 F.3d
1297, 1309 (Fed. Cir. 2018).
Applicant also claims to have owned a prior registration for PYTCHBLACK for
essentially the same services. According to Applicant, “The Prior Registration was
cancelled on March 18, 2022 due to the unintentional failure to file a declaration
32 Applicant’s main brief, 4 TTABVUE 20.
33 Examining Attorney’s brief, 6 TTABVUE 16.

Serial No. 98402385
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under Section 8….”34 The two cited Registrations registered later, in August and
December of 2022. Applicant did not file the present Application until February 12,
2024, nearly two years after its prior registration was cancelled.
These facts differentiate this case from In re Allegiance Staffing, No. 85663950,
2015 WL 4658961 (TTAB 2015). In Allegiance Staffing, the applicant’s prior
registration expired on June 15, 2012, due to the applicant’s failure to renew it; as
soon as this came to the applicant’s attention, it promptly reapplied to register the
mark on June 28, 2012. Id. at *3. While its prior registration was in effect, over a
half-dozen registrations issued, registrations the examining attorney cited as bases
for refusing the new application under Section 2(d). Id. The Board reversed the
refusal, finding that that applicant filed its new application promptly, that the cited
registrations had registered while the prior registration subsisted, suggesting an
absence of likely confusion, and the mark and services were the same. Given those
rare circumstances, the Board found that the thirteenth DuPont factor played a role
in finding confusion not likely. Id.
In the present case, in contrast, (i) Applicant waited almost two years to refile for
the same mark; (ii) the cited Registrations issued during that two-year hiatus; and
(iii) the present Application identifies a broader set of services, the broadly-phrased
“providing advertising services.”
34 Reg. No. 4808375, issued Sept. 8, 2015, cancelled March 18, 2022. Yanez decl. ¶ 6, Dec. 5,
2024 Response to Office Action at 25.

Serial No. 98402385
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While we understand Applicant’s situation, this is not one of those rare situations
where the thirteenth DuPont factor obtains. In this case, cancellation “destroys the
Section [7(b)] presumptions and makes the question of registrability ‘a new ball game’
which must be predicated on current thought.” In re Hunter Publ’g Co., 1979 WL
24907, *6 (TTAB 1979)
The thirteenth DuPont factor is thus neutral.
II. Conclusion
After careful consideration of the applicable law, evidence of record, and
arguments presented, we find that the marks are similar, that the services are
related, that they would pass though the same normal and usual channels of trade to
the same classes of customers, and that these customers’ care and sophistication
would be outweighed by the aforementioned DuPont factors. The remaining DuPont
factors are neutral.
Decision: The refusal to register Applicant’s mark under Section 2(d) is affirmed.
15 U.S.C. § 1052(d).