Board of Trustees of the University of Arkansas v. James Crocker

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: January 29, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Board of Trustees of the University of Arkansas
v.
James Crocker
_____
Opposition No. 91287352
_____
Harold J. Evans of the University of Arkansas System,
for Board of Trustees of the University of Arkansas.
Brian M. Taillon of McHale & Slavin, P.A.,
for James Crocker.
_____
Before Goodman, Elgin, and Stanley,
Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
James Crocker (“Applicant”) seeks a registration of the design mark depicted below
on the Principal Register in connection with “Clothing, namely, shirts, hoodies, hats,
pants, and socks” in International Class 25.1
1 Application Ser. No. 97458897 was filed on June 15, 2022 based upon Applicant’s claim of
first use anywhere and first use in commerce of August 31, 2018 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a). The mark is described as consisting of “a hog head
design.” Color is not claimed as a feature of the mark.

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The Board of Trustees of the University of Arkansas (“Opposer”) filed a Notice of
Opposition against registration of Applicant’s mark based on likelihood of confusion
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d).2 In support of its claim,
Opposer pleaded ownership of two prior-used and registered marks: RAZORBACKS
(in typeset characters) for various educational and entertainment services in Class
41,”3 and the design mark depicted below (“Hog Head Design Mark”) for “Clothing,
namely, sweatshirts, T-shirts, polo shirts, caps, sweaters, tank tops, shorts, and
2 Opposer also selected the claim of false suggestion of a connection with persons, living or
dead, institutions, beliefs, or national symbols under Trademark Act Section 2(a), 15 U.S.C.
§ 1052(a), on the ESTTA cover sheet, see 1 TTABVUE 1. There were no allegations in the
notice of opposition directed to Section 2(a) claim, and, in its brief, “Opposer expressly waives
its claim of false suggestion of a connection[.]” 16 TTABVUE 8. Accordingly, the claim is both
insufficiently pleaded and expressly waived.
Citations in this opinion to the briefs and other materials in the case docket refer to
TTABVUE, the Board’s online docketing system. See New Era Cap Co. v. Pro Era, LLC, No.
91216455, 2020 TTAB LEXIS 199, at *1-5 n.1.
3 Reg. No. 1590197 issued April 3, 1990; renewed. A mark depicted as a typed drawing is the
legal equivalent of a standard character mark. In re Viterra Inc., 671 F.3d 1358, 1363 n.2 (Fed.
Cir. 2012); see also TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 807.03(i) (Nov.
2025).

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jackets” in International 25 and “Organizing and conducting college sport
competitions and athletic events” in International Class 41:4
Applicant denied the salient allegations of the Notice of Opposition in his Answer
and asserted various “affirmative defenses.”5
Opposer filed evidence and a trial brief.6 Applicant did not file evidence or a brief,
but as the defendant in the proceeding, he was not required to do so.7 Trademark Rule
4 Reg. No. 4668799 issued January 6, 2015; renewed. The mark is described as consisting of
the “head of forward facing Razorback hog.” Color is not claimed as a feature of the mark.
5 See 4 TTABVUE. Applicant did not file a brief and therefore waived or forfeited any
affirmative defenses. See JNF LLC v. Harwood Int’l Inc., No. 92070634, 2022 TTAB LEXIS
328, at*4 n.8 (finding asserted defenses not pursued either waived or forfeited).
6 Opposer’s evidence is at 11-14 TTABVUE. Its trial brief is at 16 TTABVUE.
7 Applicant’s thirty-day trial period closed on June 3, 2025 and his trial brief was due October
16, 2025. See 15 TTABVUE 2. On October 29, 2025, Applicant’s counsel filed a paper entitled
“Notice of Applicant’s Divestment of Trademark Rights” asserting that “Applicant in this
action, James Crocker, has completely divested all right, title and interest Applicant may have
once held in the trademark Forward-Facing Hog Head design, including all goodwill
associated therewith.” 17 TTABVUE 2. Further, the paper asserts that the “divestment” “did
not include a formal assignment of the 97458897 application to the party acquiring the
aforementioned trademark rights and Applicant, now having no further ownership rights in
the trademark, believes he is no longer entitled to act on behalf of the 97458897 application.”
Id. at 2 n.1. Briefing had already closed in the proceeding when the paper was filed. There is
no indication of when the so-called “divestment” took place. No assignment of the application
has been recorded with the USPTO in the intervening months and thus the application
remains in Applicant’s name. Nor has any party sought to be joined or substituted as a party-
defendant. Accordingly, the action may be continued by the original party, Fed. R. Civ. P.
25(c), and any decision in the case will be binding upon an assignee. Turner v. Hops Grill &

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2.128(a)(1), 37 C.F.R. § 2.128(a)(1). See Shenzhen IVPS Tech. Co. v. Fancy Pants
Prods., LLC, No. 91263919, 2022 TTAB LEXIS 383, at *5 (defendant in inter partes
proceeding is under no obligation to file evidence or brief). Opposer still must prove its
entitlement to a statutory cause of action and grounds for opposition by a
preponderance of the evidence. Id.
For the reasons set forth below, we sustain the opposition under Trademark Act
Section 2(d).
I. The Record
The record includes the pleadings and, pursuant to Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of the opposed application. Trademark Status &
Document Retrieval (TSDR) records of the pleaded registrations were made of record
as exhibits to the Notice of Opposition.8 Opposer also made of record the following
evidence during its trial period:
• Testimony declaration of Opposer’s Director of Trademark Licensing,
Jeri Thorpe (“Thorpe Decl.”), and attached Exhibit Nos. 1-14;9
• Testimony declaration of Opposer’s Senior Associate Athletic
Director/Marketing & Business Development, Taylor McGillis
(“McGillis Decl.”);10
Bar, Inc., No. 92026674, 1999 TTAB LEXIS 416, at *1; see also TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE (TBMP) § 512.01 (2025) (“[I]f there has been an assignment
of a mark that is the subject of, or is relied upon in, a proceeding before the Board, and the
Board does not order that the assignee be joined or substituted in the proceeding, the
proceeding may be continued in the name of the assignor.”).
8 1 TTABVUE 9-16.
9 11 TTABVUE.
10 12 TTABVUE 2-5.

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• Revised testimony declaration of Opposer’s Vice Chancellor for
Advancement, T. Scott Varady (“Varady Decl.”), and attached Exhibit
A;11 and
• First Notice of Reliance on records of pleaded registrations;12 and
• Second Notice of Reliance on official records of prior TTAB
proceedings.13
II. Background
Before turning to the merits of the case, we provide a bit of background about these
parties and their history gleaned from Opposer’s evidence of record because it shapes
our analysis herein.14 In Opp. Nos. 91249267 and 91249366, Opposer opposed
application for the marks and by Waterblasting, LLC for
various goods relating to paving equipment in International Class 7. Waterblasting
abandoned both applications, resulting in final decisions in Opposer’s favor.15
11 14 TTABVUE. Earlier the same day, Opposer filed a declaration by Mr. Varady.
12 TTABVUE 6-11. Opposer fails to explain any differences between the original and revised
Varady declarations. Because Opposer only refers to the revised declaration in its brief, and
the revised declaration was timely filed, we consider it a substitute declaration and give no
consideration to the earlier filing.
12 13 TTABVUE 2-10.
13 Id. at 11-100.
14 The history is recounted in the Board’s decisions in Bd. of Trustees of The University of
Arkansas v. Crocker, No. 91283430, 2024 TTAB LEXIS 287 (not precedent), and Bd. of
Trustees of The University of Arkansas v. Crocker, No. 92084791, 2024 TTAB LEXIS 567 (not
precedent); see also Second Notice of Reliance Exhs. 1 and 3 (13 TTABVUE 15-24 and 31-40)
(copies of decisions).
15 Second Notice of Reliance Exhs. 7 and 8 (13 TTABVUE 59-70).

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Applicant filed applications for the marks and for the same
Class 7 goods; the former application matured into Reg. No. 6872206. Opposer filed a
petition to cancel the registration (Can. No. 92084791) and a notice of opposition
against the application (Opp. No. 91283430). Opposer admitted that he was “the owner
of all stock of Waterblasting ... and controls the activities of that entity.” In July and
December of 2024, the Board granted summary judgment in the cancellation and
opposition on the ground of claim preclusion in view of the earlier proceedings.16 Thus,
this is the fifth Board proceeding between the parties or their privies relating to hog
head design marks.
III. Entitlement to a Statutory Cause of Action
To establish statutory entitlement to oppose under Trademark Act Section 13,
15 U.S.C. § 1063, Opposer must demonstrate a real interest in the proceeding and a
reasonable belief of damage. Australian Therapeutic Supplies PTY. Ltd. v. Naked TM,
LLC, 965 F.3d 1370, 1372 (Fed. Cir. 2020); see also Empresa Cubana Del Tabaco v.
Gen. Cigar Co., 753 F.3d 1270, 1275 (Fed. Cir. 2014); Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1376 (Fed. Cir. 2012).
Opposer made of record printouts from the TSDR electronic database
demonstrating that it owns the active registrations for RAZORBACKS and the Hog
Head Design. In addition, Opposer’s witnesses testified that Opposer has used the
16 Second Notice of Reliance Exhs. 1 and 3 (13 TTABVUE 15-24 and 31-40).

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“Razorback Design Mark” mark “on clothing since at least 2014,”17 and this date
comports with the date of first use listed in the pleaded Hog Head Design Mark
registration. We note that nowhere does Ms. Thorpe — or any of Opposer’s witnesses
— exactly define or identify the “Razorback Design Mark,” a designation they all use.
But we infer based on the evidence of record that the witnesses are referring to the
pleaded Hog Head Design Mark (as opposed to Opposer’s other design marks depicting
various hog designs).18
This evidence supports Opposer’s plausible likelihood of confusion claim against
the involved application, showing its real interest in this proceeding and a reasonable
basis for its belief of damage. Made in Nature, LLC v. Pharmavite LLC, No. 91223352,
2022 TTAB LEXIS 228, at *19 (pleaded registrations demonstrate entitlement to bring
Section 2(d) claim). Moreover, Applicant has not disputed Opposer’s entitlement.
Opposer has established its entitlement to assert the claim in this proceeding by a
preponderance of the evidence.
IV. Priority
Opposer’s pleaded registrations are of record showing active status and Opposer’s
ownership, and Applicant has not filed any counterclaims to cancel the registrations.
Accordingly, priority is not at issue with respect to the marks and goods covered by
17 See Thorpe Decl. ¶ 12 (11 TTABVUE 4).
18 See, e.g., Thorpe Decl. Exh. 3 (depicting several hog design marks including the Hog Head
Design Mark and side-view hog marks) (id. at 14); Thorpe Decl. Exh. 10 (depicting a side-view
hog mark) (id. at 58); Varady Decl. ¶ 4 (14 TTABVUE 3) (defining “Razorback Design Mark”
as a “forward-facing hog head mark”). Thorpe Decl. Exh. 5, described by Ms. Thorpe in
paragraph 13 as “goods marketed under the Razorback Design Mark,” only includes items
bearing the Hog Head Design Mark. 11 TTABVUE 5, 24-28.

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the registrations. See King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400,
1402 (CCPA 1974); Nkanginieme v. Appleton, No. 91256464, 2023 TTAB LEXIS 64, at
*11-12 (“unless there is a counterclaim against the opposer’s pleaded and proven
registration[s], priority is not at issue in a likelihood of confusion dispute”). Also,
Applicant does not contest priority.
Opposer has proven by a preponderance of the evidence that it has priority in the
mark RAZORBACKS and the Hog Head Design Mark for the goods and services listed
in those registrations.
V. Likelihood of Confusion Factors
Section 2(d) of the Trademark Act prohibits registration of a mark that is “likely,
when used on or in connection with the goods of the applicant, to cause confusion, or
to cause mistake, or to deceive” with the opposer’s prior mark. Our determination
under Section 2(d) is based on an analysis of all of the probative evidence of record
bearing on the likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 1361 (CCPA 1973) (“DuPont”) (setting forth factors to be considered); see also In
re Majestic Distilling Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). Opposer bears the
burden of establishing that there is a likelihood of confusion by a preponderance of the
evidence. Cunningham v. Laser Golf Corp., 222 F.3d 943, 951 (Fed. Cir. 2000).
We consider the likelihood of confusion factors for which there is evidence and
argument, see In re Guild Mortg. Co., 912 F.3d 1376, 1380 (Fed. Cir. 2019), but “[n]ot
all DuPont factors are relevant in each case, and the weight afforded to each factor
depends on the circumstances.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns,

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Inc., 955 F.3d 994, 999 (Fed. Cir. 2020) (citing In re Dixie Rests., 105 F.3d 1405, 1407
(Fed. Cir. 1997)). In any likelihood of confusion analysis, two key considerations are
the similarities between the marks and the similarities between the goods under the
first and second DuPont factors. See 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.”).
We focus our inquiry, as does Opposer, on Opposer’s Hog Head Design Mark
because this mark and the associated goods in Class 25 of Reg. No. 4668799 are most
similar to Applicant’s mark and goods. If we find a likelihood of confusion between
Applicant’s mark and Opposer’s Hog Head Design Mark and the associated goods, we
need not find it as to Opposer’s RAZORBACK mark. Conversely, if we do not find a
likelihood of confusion as to the design mark, we would not find it as to Opposer’s
RAZORBACK mark. See Sock It to Me v. Fan, No. 91230554, 2020 TTAB LEXIS 201,
at *20-21 (confining likelihood of confusion analysis to most similar pleaded mark); In
re Max Cap. Grp. Ltd., No. 77186166, 2010 TTAB LEXIS 1, at *5 (same).
A. Similarity or Dissimilarity of the Goods and Channels of Trade
We first turn to the second and third DuPont factors addressing the similarity or
dissimilarity of the goods and channels of trade. We must construe the goods identified
in the pleaded registration as broadly as reasonably possible “to include all goods of
the nature and type described therein,” and we must resolve any ambiguities
regarding their coverage in favor of Opposer “‘given the presumptions afforded the

Opposition No. 91287352
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registration under Section 7(b)’ of the Trademark Act.” In re OSF Healthcare Sys., No.
88706809, 2023 TTAB LEXIS 353, at *11 (citations omitted). We must also give the
goods identified in the application their full scope in our analysis of the
second DuPont factor. Id. (citation omitted).
Our assessment focuses on the identification of goods in Applicant’s challenged
application, “Clothing, namely, shirts, hoodies, hats, pants, and socks” and Opposer’s
registered marks for “Clothing, namely, sweatshirts, T-shirts, polo shirts, caps,
sweaters, tank tops, shorts, and jackets.” On its face, Applicant’s broadly-described
shirts and hats encompass Opposer’s T-shirts, polo shirts, tank tops, and caps. We
conclude that the goods are legally identical in part.
We also may presume that the channels of trade and classes of purchasers for the
legally identical goods overlap. Viterra, 671 F.3d at 1362 (even though there was no
evidence regarding channels of trade and classes of consumers, the Board was entitled
to rely on this legal presumption in determining likelihood of confusion); Am. Lebanese
Syrian Assoc. Charities Inc. v. Child Health Rsch. Inst., No. 91190361, 2011 TTAB
LEXIS 260, at *14. These DuPont factors weigh in favor of likelihood of confusion.
B. Strength of Opposer’s Mark
Before comparing the marks, we address Opposer’s argument that the Hog Head
Design Mark is “strong and famous,”19 as that may affect its scope of protection. See
DuPont, 476 F.2d at 1361. Analysis of the fifth and sixth DuPont factors together
19 16 TTABVUE 10.

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determines the strength of a mark. Spireon, Inc. v. Flex LTD, 71 F.4th 1355, 1362
(Fed. Cir. 2023) (“Two of the DuPont factors (the fifth and sixth) consider strength.”).
The fifth DuPont factor concerns “[t]he fame of the prior mark (sales, advertising,
length of use).”
In evaluating the strength of a mark, we consider both its conceptual strength,
based on the nature of the mark itself, and if there is probative evidence in the record,
its commercial strength, i.e., its fame, based on marketplace recognition of the mark.
In re Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010) (“A mark’s
strength is measured both by its conceptual strength (distinctiveness) and its
marketplace strength (secondary meaning).”); New Era Cap Co. v. Pro Era, LLC, No.
91216455, 2020 TTAB LEXIS 199, at *28-29 (“In determining the strength of a mark,
we consider both its inherent strength, based on the nature of the mark itself, and, if
there is evidence in the record of marketplace recognition of the mark, its commercial
strength.”). In this context, “the strength of a mark is not a binary factor, but varies
along a spectrum from very strong to very weak.” In re Coors Brewing Co., 343 F.3d
1340, 1345 (Fed. Cir. 2003); see also Joseph Phelps Vineyards, LLC v. Fairmont
Holdings, LLC, 857 F.3d 1323, 1325 (Fed. Cir. 2017) (same).
Although Opposer does not address it, we acknowledge that the registered Hog
Head Design is inherently distinctive; that is, at least suggestive. Trademark Act
Section 7(b), 15 U.S.C. § 1057(b). Applicant, which did not file a brief, has not
suggested any conceptual weakness of the mark.

Opposition No. 91287352
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The fame (or commercial strength) of a mark is relevant to the likelihood-of-
confusion analysis because “[a] mark with extensive public recognition and renown
deserves and receives more legal protection than an obscure or weak mark.” Omaha
Steaks Int’l, Inc. v Greater Omaha Packing Co., 908 F.3d 1315, 1319 (Fed. Cir.
2018) (quoting Kenner Parker Toys, Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 353
(Fed. Cir. 1992)). In assessing commercial strength or fame, we may consider direct
evidence such as consumer surveys or declarations; and indirect evidence including
the volume of sales and advertising expenditures in connection with the identified
goods sold under the mark; the length of time the mark has been in use; widespread
critical assessments; notice by independent sources of the goods offered under the
marks; the general reputation of the goods; and social media presence. Heil Co. v.
Tripleye GmbH, No. 91277359, 2024 TTAB LEXIS 494, at *51 (citation omitted);
Weider Publ’ns, LLC v. D & D Beauty Care Co., No. 91199352, 2014 TTAB LEXIS 2,
at *18-19; see also Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 1371 (Fed. Cir.
2002) (recognizing indirect evidence as appropriate proof of strength). Opposer, as the
party attempting to prove that its pleaded mark enjoys the highest level of commercial
strength (fame), bears the burden to clearly prove it. Coach Servs., 668 F.3d at
1367 (citing Leading Jewelers Guild, Inc. v. LJOW Holdings, LLC, No. 91160856, 2007
TTAB LEXIS 35, at *12).
The record shows that Opposer adopted the Hog Head Design Mark in 2014, and
that the design is one of “seven pictorial equivalents of the University’s famous

Opposition No. 91287352
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RAZORBACK Marks.”20 Ms. Thorpe testified that Opposer has earned significant
revenue from licensing the “University Marks,” which term (though capitalized) is not
defined — but presumably includes the Hog Head Design Mark.21 Ms. Thorpe testified
that Opposer has 437 licensees of its marks, including licenses for clothing.22 Neither
the testimony nor the supporting exhibits (many of which are hearsay records from
Collegiate Licensing Company (CLC)) are limited to the Hog Head Design Mark.23 Ms.
Thorpe also testified about the success of Opposer’s athletic teams over the past 115
years; but the relationship of this evidence to the pleaded mark is unclear.24 Further,
the testimony relating to the significant “value” of media advertising for Opposer’s
sports programs “which involves a promotion of the University marks, including the
20 Thorpe Decl. ¶ 5 (11 TTABVUE 3); McGillis Decl. ¶ 10 (12 TTABVUE 4).
21 Thorpe Decl. ¶ 14 (11 TTABVUE 5).
22 Thorpe Decl. ¶ 7, Exhs. 1 and 2 (id. at 5, 9-12); see also Varady Decl. ¶ 7 (Opposer “has had
an extensive licensing program or its trademarks, including the Razorback Design Mark.”)
(14 TTABVUE 3).
23 See Thorpe Decl. Exhs.1, 4, 6 (11 TTABVUE 9-10, 15-23, 29-50). Ms. Thorpe failed to
authenticate this evidence, or establish that the records are business records of Opposer or
CLC that would fall under a hearsay exception. Although Applicant did not object to the
evidence, objections on the basis of hearsay are generally unnecessary in cases before the
Board, as distinguished from a case presented to a jury in court, where the court has an
interest in preventing the jury from being swayed as to the truth that may asserted by a
hearsay statement. “Because [an opposition] proceeding is akin to a bench trial, the Board is
capable of assessing the proper evidentiary weight to be accorded the testimony and evidence,
taking into account the imperfections surrounding the admissibility of such testimony and
evidence.” Peterson v. Awshucks SC, LLC, No. 92066957, 2020 TTAB LEXIS 520, at *10.
Accordingly, while we have reviewed and considered the evidence, we give it somewhat less
probative value given its nature.
24 See Thorpe Decl. ¶ 15 (11 TTABVUE 5-6).

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Razorback Design Mark,” is too non-specific as to the pleaded mark to be highly
probative.25 The testimony by Opposer’s other witnesses is similarly non-specific.26
The evidence replied upon by Opposer has other deficiencies. Exhibits to Ms.
Thorpe’s declaration regarding the media impressions and locations of Opposer’s
media advertising indicates that Opposer advertises almost exclusively in the state of
Arkansas; nonetheless there is no indication that the Hog Head Design Mark
appeared in any of those ads (indeed, some of the largest numbers are associated with
radio advertisements, which by definition could not feature the pleaded design
mark).27 Opposer also supplied print outs of its social media accounts, but none of
these feature the Hog Head Design Mark.28
In short, we do not know the exact extent or reach of Opposer’s activities including
whether they have actually enhanced consumer recognition of the Hog Head Design
Mark for clothing products. See Made in Nature, 2022 TTAB LEXIS 228, at *38-
39 (“Opposer did not provide evidence regarding the extent or reach of these activities
(e.g., the volume and geographical extent of the readership of the print media in which
Opposer’s advertisements and flyers have appeared … and the length of time over
which these advertisements have been placed.”). Nor has Opposer provided any
25 Thorpe Decl. ¶ 17 (id. at 6).
26 See generally McGillis Decl. (12 TTABVUE 2-5); Varady Decl. (14 TTABVUE).
27 Thorpe Decl. Exh. 7 (11 TTABVUE 51-52). See note 23, supra, regarding lack of
authentication and hearsay evidence. But Ms. Thorpe’s testimony summarizes some of this
evidence and indicates it relates to advertising in 2020-21. Thorpe Decl. ¶ 17 (11 TTABVUE
6).
28 Thorpe Decl. Exhs. 8, 10, and 12 (id. at 53-54, 57-59, 61-62).

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evidence, such as market share or samples of advertisements or promotions using the
Hog Head Design Mark for the clothing products at issue upon which we might rely
to contextualize Opposer’s sales and expenditures. See Omaha Steaks, 908 F.3d at
1320-22 (explaining forms of contextual evidence).
Opposer also argues that it “has a history of successful enforcement against
unauthorized hog logos,”29 which can be pertinent to the strength of a mark. See Burns
Philp Food, Inc. v. Modern Prods. Inc., No. 77433, 1992 TTAB LEXIS 35, at *2 n.2
(policing efforts go to the strength of the mark). In particular, Opposer made of record
printouts from thirteen Board proceedings in which it opposed or sought to cancel
“hog” formative marks.30
None of the Board proceedings resulted in a judgment for Opposer on the merits of
the claims. Four of the prior proceedings involved Applicant or his privy,
Waterblasting, LLC, resulting in voluntary abandonments or decisions based on claim
preclusion.31 Of the remaining nine proceedings, in one Opposer stipulated to
dismissal of its opposition and allowed the mark for clothing items in
Class 25 to register; that registration is now incontestable.32 The remaining eight
29 16 TTABVUE 12.
30 Second Notice of Reliance (13 TTABVUE 11-100).
31 See Section II, supra.
32 Second Notice of Reliance Exh. 11 (13 TTABVUE 83-88). Third party registrations are not
probative of commercial weakness of a mark. Juice Generation Inc. v. GS Enters. LLC, 794
F.4th 1334, 1339 (Fed. Cir. 2015) (third party registration evidence is probative of the
conceptual weakness of a mark).

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opposition proceedings did not result in a decision on the merits inasmuch as the
applicant defaulted or withdrew its application.33 The results just as easily indicate
that these defendants acquiesced to Opposer’s demands in order to avoid litigation
rather than a belief that their marks were likely to conflict with Opposer’s rights.
Milwaukee Elec. Tool Corp. v. Freud Am., Inc., No. 92059634, 2019 TTAB LEXIS 384,
at *60 (“[W]e find that competitors likely acquiesced to Freud’s assertion of its
exclusive right to use the color red on saw blades to avoid litigation.”); In re Hikari
Sales USA, Inc., No. 86439012, 2019 TTAB LEXIS 73, at *20 (applicant’s evidence
“only shows” that “competitors ceased use of that term, but does not shed light on its
competitors’ motivation for stopping their respective uses.”); cf. In re Wella Corp., 565
F.2d 143, 144 n.2 (CCPA 1977) (“[W]e agree with the TTAB that such evidence shows
a desire of competitors to avoid litigation rather than distinctiveness of the mark.”).
Without more robust evidence of successful enforcement efforts, the evidence is
insufficient to augment the strength of Opposer’s Hog Head Design Mark for the
identified goods.
Opposer has not established that it is entitled to a broadened scope of protection of
its pleaded Hog Head Design Mark, let along clearly proving fame of the mark. We
find that the fifth and sixth DuPont factors are neutral and accord Opposer’s pleaded
Hog Head Design Mark the normal scope of protection to which inherently distinctive
marks are entitled.
33 Second Notice of Reliance Exhs. 4-6, 9-13 (13 TTABVUE 41-58, 71-100).

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C. Similarity or Dissimilarity of the Marks
Turning next to similarity or dissimilarity of the marks under the first DuPont
factor, we must compare Applicant’s mark to Opposer’s marks “in their entireties as
to appearance, sound, connotation and commercial impression.” Palm Bay Imps., Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir.
2005) (quoting DuPont, 476 F.2d at 1361). “Similarity in any one of these elements
may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC,
No. 87075988, 2018 TTAB LEXIS 170, at *13 (quoting In re Davia, No. 85497617, 2014
TTAB LEXIS 214, at *4, aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019)); accord 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.”) (citation omitted).
“While the marks must be considered in their entireties, ‘in articulating reasons
for reaching a conclusion on the issue of confusion, there is nothing improper in stating
that, for rational reasons, more or less weight has been given to a particular feature
of a mark, provided the ultimate conclusion rests on consideration of the marks in
their entireties.’” Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS
464, at *39 (quoting In re Detroit Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018)).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena Hosp.,
774 F.3d 747, 752 (Fed. Cir. 2014) (citation omitted). “The proper test is … whether
the marks are sufficiently similar in terms of their commercial impression such that
persons who encounter the marks would be likely to assume a connection between the

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parties.” In re i.am.symbolic, llc, 866 F.3d 1315, 1323 (Fed. Cir. 2017) (citation
omitted); see also Phillips Petroleum Co. v. Knox Indus. Corp., 277 F.2d 945, 947
(CCPA 1960) (“The issue is whether the marks are confusingly similar, not whether
they are identical.”) (citation omitted). “The focus is on the recollection of the average
purchaser, who normally ‘retains a general rather than a specific impression of
marks.’” Sage Therapeutics, Inc. v. SageForth Psych. Servs., LLC, No. 91270181, 2024
TTAB LEXIS 139, at *13 (quoting In re i.am.symbolic, llc, No. 85916778, 2018 TTAB
LEXIS 281, at *11).
Regarding comparing design marks, Professor McCarthy has explained:
Similarity of appearance between marks is really nothing
more than a subjective “eyeball” test. Because a picture is
worth a thousand words, there is little in the way of
guidelines to determine that degree of visual similarity
which will cause a likelihood of confusion of buyers…. There
is no point in launching into a long analysis of the judicial
pros and cons regarding visual similarity of marks.
Regarding visual similarity, all one can say is “I know it
when I see it.”
J. Thomas McCarthy, 3 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:25
(5th ed. Dec. 2025 update).
We also keep in mind our findings above that the goods and channels of trade are
legally identical in part and overlap under the second and third DuPont factors,34
reducing the degree of similarity between the marks necessary to conclude that there
34 See Section V(A), supra.

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is a likelihood of confusion. Viterra, 671 F.3d at 1360; In re Mighty Leaf Tea, 601 F.3d
1342, 1348 (Fed Cir. 2010).35
Although the parties’ marks would not be presented side-by-side in the
marketplace, we present them as such here for ease of comparison (Applicant’s on the
left and Opposer’s on the right):
Both designs are fanciful, cartoonish hog heads with pointed ears, tusks, and
marks indicating ridges, and almost identical eyes. There are certainly differences
between the marks (most notably the width of the face and the tusks), but consumers
will not have the luxury of a side-by-side comparison of the marks. The overall
commercial impressions and connotations created by the marks are quite similar
because both marks conjure an angry hog. As the Board stated in Time Warner Entm’t
35 Opposer asserts that the marks have been found “nearly identical,” citing to the Board’s
opinion in Can. No. 92084791. 16 TTABVUE 10-11. See also Second Notice of Reliance
(13 TTABVUE 11) (“Further, the decisions are relevant to the similarity of the parties’ marks
given that Applicant’s mark has been found to be “nearly identical” to the Razorback Design
Mark in Cancellation No. 92084791). The statement was made in a nonprecedential
interlocutory order denying Applicant/Respondent’s motion to dismiss Opposer/Petitioner’s
Section 2(d) claim as insufficiently pleaded, and is not binding on the Board in this case.
Cf. Domino’s Pizza, Inc. v. Little Caesar Enters., No. 91069431, 1988 TTAB LEXIS 28, at *11
n.9 (“That statement, made over the signature of a single interlocutory Attorney-Examiner of
the Board, is not binding on this three-member panel, and we find ourselves in disagreement
with the statement.”).

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Co. v. Jones, No. 91112409, 2002 TTAB LEXIS 462, in comparing cartoon depictions
of roadrunners:
Finally, the differences in the details of the parties’
respective cartoon depictions of a roadrunner bird do not
suffice to distinguish the marks in terms of their overall
commercial impressions. Regardless of the differences
which might be apparent in a side-by-side comparison, both
marks depict a cartoon roadrunner bird. When used as a
trademark, the depiction of a cartoon roadrunner bird is no
less arbitrary than the words ROAD RUNNER or
ROADRUNNER are. The fact that applicant’s cartoon
roadrunner may not be identical to opposer's cartoon
roadrunner in all details is less significant to our analysis
than the basic similarity arising from the fact that both
marks include a cartoon depiction of a roadrunner.
Id. at *25-26.
Furthermore, it has not been established that hog head designs are commonplace,
let alone used in trademarks in connection with similar goods, such that we could
conclude that consumers are somehow accustomed to these designs and may be more
willing to overlooking the similarities between the marks on identical goods sold in
the same trade channels.
In sum, we find Applicant’s mark is very similar to the registered Hog Head Design
Mark. This factor favors finding a likelihood of confusion.
D. Summary of the DuPont Factors
Finally, we must “weigh the DuPont factors used in [our] analysis and explain the
results of that weighing.” In re Charger Ventures LLC, 64 F.4th 1375, 1383 (Fed. Cir.
2023). In this case, all of the DuPont factors for which there is evidence and argument

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(first, second, and third) weigh in favor of likelihood of confusion or are neutral (fifth
and sixth).
Accordingly, we find that Opposer has proven by a preponderance of the evidence
that confusion is likely between its registered Hog Head Design Mark and Applicant’s
applied-for mark.
Decision
The opposition to Serial No. 97458897 is sustained under Trademark Act Section
2(d).