Happy Ears Hearing Center, LLC

Mailed: August 6, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Happy Ears Hearing Center, LLC
————
Serial No. 97036010
————
Jonathon A. Talcott of Buchalter, a Professional Corporation,
for Happy Ears Hearing Center, LLC.
Marlene Bell, Trademark Examining Attorney, Law Office 118,
Michael Baird, Managing Attorney.
————
Before Pologeorgis, Larkin, and Lavache,
Administrative Trademark Judges.
Opinion by Pologeorgis, Administrative Trademark Judge:
Happy Ears Hearing Center, LLC (“Applicant”) seeks registration on the Principal
Register of the standard-character mark HAPPY EARS HEARING (“EARS
HEARING” disclaimed) for services ultimately identified as “Medical diagnosis,
treatment, and evaluation of hearing and balance disorders; hearing aid services;
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 97036010
2
otolaryngology care; audiological testing; and related health information services” in
International Class 44.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the standard-character mark HAPPY EARS (“EARS”
disclaimed), registered on the Principal Register for “ear plugs for noise reduction or
soundproofing” in International Class 10.2
When the refusal was made final, Applicant appealed. Applicant and the
Examining Attorney filed briefs.3 After the Examining Attorney filed her brief,
Applicant changed legal representation4 and filed a “Request to Suspend Appeal and
Remand Application for Further Examination,” specifically to consider additional
evidence that is allegedly critical to the examination of its application.5 The Board
1 Application Serial No. 97036010, filed on September 20, 2021, based on an allegation of use
in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming August
28, 2014 as the date of first use and October 1, 2014 as the date of first use in commerce.
2 Registration No. 5314145, issued on October 24, 2017; Section 71 accepted and Section 15
affidavit acknowledged on February 8, 2024.
3 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents.
It appears that Applicant’s prior counsel may have employed an artificial intelligence (AI)
generative program when drafting Applicant’s initial appeal brief filed on August 22, 2025,
see 6 TTABVUE, particularly since the brief cites to only a single legal decision and is not in
the typical format of legal briefs. Although employing AI is not impermissible per se, it is the
duty of parties to review and confirm the accuracy of all AI-generated materials. See generally
“Guidance on Use of Artificial Intelligence-Based Tools in Practice Before the United States
Patent and Trademark Office,” 89 Fed. Reg. 25609 (Apr. 11, 2024) (parties using AI to draft
papers must confirm the accuracy of all facts and citations to case law).
4 8 TTABVUE.
5 10 TTABVUE.

Serial No. 97036010
3
granted the request and remanded the application to the Examining Attorney for
further examination.6 After considering the additional evidence and arguments
submitted by Applicant on remand, the Examining Attorney maintained the Section
2(d) refusal.7 By order dated January 14, 2026, the Board resumed the appeal and
allowed Applicant time in which to file a supplemental brief.8 On March 13, 2026,
Applicant filed its supplemental appeal brief.9 Thereafter, the Examining Attorney
filed a supplemental brief,10 and, in turn, Applicant filed a reply brief.11 Accordingly,
the appeal if fully briefed. For the reasons explained below, we affirm the Section 2(d)
refusal.
I. Preliminary Matter – Examining Attorney’s Evidentiary Objection
We initially turn to an evidentiary objection lodged by the Examining Attorney.
Specifically, the Examining Attorney objects to all the attached exhibits to
6 11 TTABVUE.
7 12 TTABVUE. The Examining Attorney captioned her Office action as a denial of a request
for reconsideration. However, Applicant did not request reconsideration of the final decision.
Instead, Applicant sought a remand to submit additional evidence. Accordingly, we construe
the Examining Attorney’s Office action as maintaining the final refusal after consideration
of the additional evidence submitted during remand.
8 13 TTABVUE. The Board has the discretion to permit supplemental briefing when
appropriate. See, e.g., In re Fallon, No. 86882668, 2020 WL 6255423, at *1 (TTAB 2020); In
re Mecca Grade Growers, LLC, No. 86358219, 2018 WL 1314995, at *1-2 (TTAB 2018).
9 15 TTABVUE.
10 17 TTABVUE.
11 20 TTABVUE.

Serial No. 97036010
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Applicant’s initial appeal brief (filed on August 22, 2025)12 because this evidence was
submitted for the first time with Applicant’s brief.13
The record in an ex parte proceeding should be complete prior to appeal.
Trademark Rule 2.142(d); 37 C.F.R. § 2.142(d). Exhibits that are attached to a brief
but not made of record during examination are untimely, and will not be considered.
See In re Inn at St. John’s LLC, No. 87075988, 2018 WL 2734893, at *1-2 (TTAB
2018); see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP)
§§ 1203.02(e) and 1207.01 (2026). We note that while Applicant filed a request for
remand for the purposes of submitting additional evidence after it filed its appeal
brief, the evidence submitted with the request for remand differs from the evidence
attached to Applicant’s initially filed appeal brief. Accordingly, the Examining
Attorney’s evidentiary objection is sustained, and we give no consideration to the
exhibits attached to Applicant’s initial appeal brief.
II. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). See also In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023).
Our determination under Section 2(d) is based on an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E. I. DuPont de Nemours
12 6 TTABVUE.
13 Examining Attorney’s Appeal Brief, p. 3, 9 TTABVUE 3.

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& Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v.
Hargis Indus., Inc., 575 U.S. 138, 144 (2015); see also In re Majestic Distilling Co.,
315 F.3d 1311 (Fed. Cir. 2003).
In any likelihood of confusion analysis, different DuPont factors may play a
dominant role, and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1116 (Fed. Cir. 2024) (quoting Tiger Lily Ventures Ltd. v. Barclays
Cap. Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be
assigned to each factor depending on the evidence presented, and “any one of the
factors may control a particular case.” Id.; see also In re Charger Ventures, 64 F.4th
at 1381. While we consider each DuPont factor for which there is evidence and
argument, In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019), two key
considerations in every Section 2(d) case are the similarities between the marks and
the similarities between the goods or services. In re i.am.symbolic, llc, 866 F.3d 1315,
1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156,
1164-65 (Fed. Cir. 2002)).
A. Similarity of the Marks
We initially consider the first DuPont factor focusing on the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. See 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 as to any one of these means of comparison may be sufficient
to support a finding that the marks are confusingly similar. See Krim-Ko Corp. v.
Coca-Cola Co., 390 F.2d 728, 732 (CCPA 1968) (“It is sufficient if the similarity in

Serial No. 97036010
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either form, spelling or sound alone is likely to cause confusion.”); Inn at St. John’s,
2018 WL 2734893, at *5 (“Similarity in any one of these elements may be sufficient
to find the marks confusingly similar.”) (quoting In re Davia, No. 85497617, 2014 WL
2531200, at *2 (TTAB 2014)).
“The proper test is not a side-by-side comparison of the marks, 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.” i.am.symbolic, 866 F.3d at 1323 (quoting Coach Servs. Inc., 668
F.3d 1356, 1368 (Fed. Cir. 2012)) (internal quotation marks omitted).
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, the decision must be based on a comparison of the entire marks,
not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir.
1985). See also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA
1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal;
rather, it must be considered as a whole in determining likelihood of confusion.”).
However, “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.” Nat’l Data, 753 F.3d at 1058.
Applicant’s mark is HAPPY EARS HEARING in standard characters. The cited
mark is HAPPY EARS, also in standard characters.
In challenging the refusal, Applicant argues that the addition of the term

Serial No. 97036010
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HEARING to its mark is far more than just a modifier.14 More specifically, Applicant
maintains that because it operates as an audiology clinic providing professional
health care services through licensed audiologists and physicians, the addition of the
term HEARING suggests Applicant’s medical hearing care services are for improving
hearing—which means the exact opposite of Registrant’s hearing blocking devices.15
Furthermore, Applicant contends that the absence of the term HEARING in
Registrant’s mark is intentional and carries weight because the goods listed in the
cited registration are products that prevent hearing, while Applicant’s mark with the
inclusion of the word HEARING suggests services aimed at restoring or improving
hearing.16 Finally, Applicant argues that the term HAPPY is laudatory and EARS is
descriptive or highly suggestive of both noise reducing ear plugs and hearing-related
services.17 As such, Applicant contends that the cited mark HAPPY EARS is weak
and entitled to a narrow scope of protection and therefore the addition of the term
HEARING in Applicant’s mark is sufficient to differentiate the marks in connotation
and overall commercial impression.18
We are not persuaded by Applicant’s arguments for the following reasons. First,
the entirety of the cited mark is encompassed by Applicant’s mark; in such cases,
confusing similarity has often been found. See e.g., See In re Mighty Leaf Tea, 601
14 Applicant’s Supplemental Appeal Brief, p. 4, 15 TTABVUE 6.
15 Id.
16 Id. at pp. 4-5, 15 TTABVUE 6-7.
17 Applicant’s Supplemental Reply Brief, p. 7, 20 TTABVUE 9.
18 Id.

Serial No. 97036010
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F.3d 1342, 1347-48 (Fed. Cir. 2010) (ML similar to ML MARK LEES); Coca-Cola
Bottling Co. v. Jos. E. Seagram & Sons, Inc., 526 F.2d 556, 557 (CCPA 1975)
(BENGAL and BENGAL LANCER and design found to be similar); Lilly Pulitzer, Inc.
v. Lilli Ann Corp., 376 F.2d 324, 324-25 (CCPA 1967) (THE LILLY similar to LILLI
ANN); In re U.S. Shoe Corp., No. 73444699, 1985 WL 72046, at *3 (TTAB 1985)
(CAREER IMAGE similar to CREST CAREER IMAGES). As discussed below, this
principle applies in this case.
Second, we find the marks similar because they both share the dominant wording
HAPPY EARS, which connotes the identical meaning. Third, the inclusion of the
disclaimed wording HEARING in Applicant’s mark does not detract from the overall
similarities between the marks due to the shared and dominant wording HAPPY
EARS. Disclaimed or descriptive matter generally has less source-indicating weight
in the analysis. Cunningham v. Laser Golf Corp., 222 F.3d 943, 947 (Fed. Cir. 2000)
(“Regarding descriptive terms, this court has noted that the ‘descriptive component
of a mark may be given little weight in reaching a conclusion on the likelihood of
confusion.’”) (quoting Nat’l Data, 753 F.2d at 1060). Furthermore, Applicant’s
argument that the marks at issue connote different meanings because of the omission
of the wording HEARING in the cited mark is unavailing. There is no evidence to
support such an argument. In any event, we find that the wording HAPPY EARS
(without HEARING) used in connection with “ear plugs for noise reduction or
soundproofing” would still connote hearing because ear plugs are meant to protect
one’s hearing.

Serial No. 97036010
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Fourth, it is often the first part of the literal portion of a mark which is most likely
to be impressed upon the mind of a purchaser and remembered when making
purchasing decisions. Palm Bay Imps., Inc., 396 F.3d at 1372; see also Presto Prods.,
Inc. v. Nice-Pak Prods., Inc., No. 91074797, 1988 WL 252340, at *3 (TTAB 1988).
Consumers will focus more on the HAPPY EARS portion of Applicant’s mark than
the disclaimed wording HEARING as the source-indicator for Applicant’s services,
especially since the wording HEARING is at least highly descriptive of, if not the
generic name for, Applicant’s identified services.
Regarding Applicant’s argument that the wording HAPPY EARS is conceptually
weak and entitled to a more limited scope of protection, we note it is well-settled that
even weak marks are entitled to protection from the use of a similar mark for related
goods, as is the case here. See Charger Ventures, 64 F.4th at 1380 (citing King Candy
Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1401 (CCPA 1974) (“Confusion is
confusion. The likelihood thereof is to be avoided, as much between ‘weak’ marks as
between ‘strong’ marks, or as between a ‘weak’ and a ‘strong’ mark.”)); Matsushita
Elec. Co. v. Nat’l Steel Co., 442 F.2d 1383, 1385 (CCPA 1971) (“Even though a mark
may be ‘weak’ in the sense of being a common word in common use as a trademark,
it is entitled to be protected sufficiently to prevent confusion from source arising”).
We also find it likely that consumers would view Registrant’s mark as a shortened
version of Applicant’s mark. Mighty Leaf Tea, 601 F.3d at 1346 (ML is likely to be
perceived as a shortened version of ML MARK LEES); In re Apparel Ventures, Inc.,
No. 73438947, 1986 WL 83658, at *3 (TTAB 1986) (SPARKS in stylized form likely

Serial No. 97036010
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to be confused with SPARKS BY SASSAFRAS in stylized form, where the latter mark
uses the same term and includes a trade name or house mark). Even Applicant itself
employs the shortened version of its mark, i.e., HAPPY EARS, in its own marketing
materials and on the wall of its establishments. We display some examples below:19
19 Applicant’s Specimen, TSDR p. 3 and 18. The blue arrows are provided for emphasis.

Serial No. 97036010
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Quite simply, Applicant’s and Registrant’s marks include the identical dominant
wording that convey the same meaning. We find the disclaimed term HEARING in
Applicant’s mark is less significant. For the reasons discussed above, consumers are
more likely to remember the wording HAPPY EARS than the other elements of
Applicant’s mark, particularly since Applicant itself uses this shortened version in its
offices and on its marketing materials. Nat’l Data, 753 F.2d at 1058. While we have
not overlooked the disclaimed wording EARS HEARING in Applicant’s mark or the
presence of the disclaimed term EARS in the cited mark, we nonetheless conclude
that Applicant’s and Registrant’s marks, when considered in their entireties, are
highly similar in appearance, connotation and overall commercial impression in light
of the shared, dominant wording HAPPY EARS.
Thus, the first DuPont factor strongly favors a conclusion that confusion is likely.

Serial No. 97036010
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B. Similarity of the Good and Services
We next turn to the comparison of the goods and services, the second DuPont
factor. In making our determination regarding the similarity of the goods and
services, we must look to the services as identified in Applicant’s application and the
goods listed in cited registration. See Stone Lion Cap. Partners, LP v. Lion Cap. LLP,
746 F.3d 1317, 1323 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput.
Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990) (“The authority is legion that the
question of registrability of an applicant’s mark must be decided on the basis of the
identification of goods [or services] set forth in the application regardless of what the
record may reveal as to the particular nature of an applicant’s goods [or services], the
particular channels of trade or the class of purchasers to which the sales of goods [or
services] are directed.”).
It is settled that it is not necessary that the respective goods or services be
competitive in order to find that they are related for purposes of our likelihood of
confusion analysis. The respective goods and services need only be “related in some
manner and/or if the circumstances surrounding their marketing [be] such that they
could give rise to the mistaken belief that the goods [and services] emanate from the
same source.” Coach Servs. Inc., 668 F.3d at 1369 (quoting 7-Eleven Inc. v. Wechsler,
No. 91117739, 2007 WL 1431084, at *10 (TTAB 2007)). The issue is not whether
consumers would confuse Applicant’s services with Registrant’s goods, but rather
whether there is a likelihood of confusion as to the source of these goods and services.
L’Oreal S.A. v. Marcon, No. 91184456, 2012 WL 1267956, at *6 (TTAB 2012); In re
Rexel Inc., No. 24142), 1984 WL 63591, at *1 (TTAB 1984).

Serial No. 97036010
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To reiterate, Applicant’s services are “Medical diagnosis, treatment, and
evaluation of hearing and balance disorders; hearing aid services; otolaryngology
care; audiological testing; and related health information services” in International
Class 44. Registrant’s goods listed in the cited registration are “ear plugs for noise
reduction or soundproofing” in International Class 10.
In support of the refusal, the Examining Attorney made of record one third-party,
use-based registration, identifying, under a single mark, both Applicant’s services
and Registrant’s goods, as well as multiple third-party uses for the involved services
and goods. Although the registration is not evidence that the mark shown therein is
in use or that the public is familiar with it, it nonetheless has probative value to the
extent that it serves to suggest that the goods and services listed therein are of a kind
which may emanate from a single source under a single mark. See In re Albert Trostel
& Sons Co., No. 74186695, 1993 WL 596274, at *3 (TTAB 1993); In re Mucky Duck
Mustard Co., No. 603019, 1988 WL 252484, at *3 n.6 (TTAB 1988). The third-party
registration is described below:20
• Reg. No. 6612243 - OTOPRO (in standard characters) for goods and services
including “ear plugs for noise reduction” in Class 10 and “hearing aid services;
hearing aid fitting services” in Class 44.
Additionally, the Examining Attorney submitted the following third-party
20 June 23, 2022, Nonfinal Office Action, TSDR pp. 10-12. The Examining Attorney also
submitted a copy of Registration No. 5680982 for the mark . However, the Class
10 goods listed in this registration have been cancelled. Accordingly, this registration is not
probative in assessing the relatedness of Applicant’s Class 44 services and Registrant’s Class
10 goods.

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internet marketplace evidence demonstrating that multiple entities provide
Applicant’s services and Registrant’s goods under the same mark. The websites are
identified below:21
• Screenshots from the website wwww.audibel.com – offering for sale ear
buds for noise protection and providing hearing aid testing under the
AUDIBEL mark.
• Screenshots from the website www.hearcenter.com - offering for sale ear
buds for noise protection and audiological testing under the HEAR
CENTER mark.
• Screenshots from the website www.doctorshearingservices.com -
offering for sale ear buds for noise protection and hearing treatment
plans, including comprehensive evaluations to custom hearing aid
fittings, under the DOCTOR’S HEARING SERVICES mark.
• Screenshots from the website www.harrisonburghearing.com - offering
for sale ear buds for noise protection and hearing health and hearing
loss treatment services under the HARRISONBURG HEARING
SERVICES mark.
• Screenshots from the website www.hearingonthecape.com - offering for
sale ear plugs for noise protection and providing diagnostic audiologic
evaluations services under the ADVANCED AUDIOLOGY mark.
• Screenshots from the website www.belairhearingaids.com - offering for
sale ear plugs for noise protection and providing hearing diagnosis and
solutions services under the BAY AREA AUDIOLOGY mark.
• Screenshots from the website www.2ears.com - offering for sale ear buds
r as hearing protection devices and providing comprehensive hearing
testing services under the PROFESSIONAL HEARING SERVICES
INC. mark.
• Screenshots from the website www.entofsect.com - offering for sale
custom-made ear plugs for noise protection and providing
comprehensive hearing testing services under the EAR NOSE &
THROAT ASSOCIATES OF SECT mark.
21 October 24, 2024, Final Office Action, TSDR pp. 12-59.

Serial No. 97036010
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• Screenshots from the website www.gainesvillehearing.com - offering for
sale custom-made ear plugs for noise protection hearing protection ear
buds for noise protection and providing audiology services, including
hearing evaluations, under the GAINESVILLE HEARING SERVICES
mark.
• Screenshots from the website www.professionalaudiology.com - offering
for sale hearing protection ear buds for noise protection and providing
hearing evaluations for adults and children under the PROFESSIONAL
AUDIOLOGY mark.
Relying on extrinsic evidence regarding the actual uses of the involved marks,
Applicant argues that the services offered by Applicant are distinct from the goods
offered by Registrant.22 Specifically, Applicant maintains that its services “are
medical and diagnostic in nature, provided by licensed healthcare professionals to
correct hearing, and they do not include ear plugs.”23 Applicant further asserts that
its services for hearing aids involve FDA-regulated medicals devices designed to
amplify sound and treat hearing loss, selected and programmed in a clinical setting
based on individualized medical prescriptions.24
Applicant contends that, in contrast to its services, Registrant’s goods are
preventative, not corrective, in nature.25 Applicant further maintains that
Registrant’s goods are “consumer-grade, fungible commodity products for reducing
sound exposure purchased for a fraction of the price compared to Applicant’s services
and third party hearing aids.”26 Applicant also argues that, unlike its services,
22 Applicant’s Supplemental Appeal Brief, p. 1, 15 TTABVUE 3.
23 Id. at p. 6, 15 TTABVUE 8.
24 Id.
25 Id.
26 Id.

Serial No. 97036010
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Registrant’s goods require no diagnosis, prescription, clinical setting, or professional
fitting.27 As to the ordinary meaning of the goods, Applicant contends that hearing
aids and ear plugs perform different tasks, are fundamentally different, and are not
interchangeable.28
Finally, Applicant argues that the Examining Attorney was required to show
“something more” to come to a conclusion that the goods and services at issue are
related.29
We do not find Applicant’s arguments persuasive. As previously noted, we must
determine the relatedness of the goods and services based on the identifications in
Applicant’s application and the cited registration, and not “extrinsic evidence
concerning the actual uses of the marks” where “the restrictions are not reflected in
the four corners of the application and registration[].”i.am.symbolic, 866 F.3d at 1323.
Here, the restrictions advanced by Applicant do not appear in the identifications in
either Applicant’s application or the cited registration. As such, we do not consider
this extrinsic evidence nor the restrictions reflected in this evidence. Moreover, and
as previously stated, the issue is not whether consumers would confuse Applicant’s
services with Registrant’s goods, but rather whether there is a likelihood of confusion
as to the source of these goods and services.
Moreover, we find that there are no circumstances in this case that require the
27 Id.
28 Id.
29 Applicant’s Supplemental Reply Brief, p. 5, 20 TTABVUE 7.

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Examining Attorney to show “something more” to show that the marks are used for
related goods and services. Here, the manner in which Applicant’s services and
Registrant’s goods may be related is not “obscure, unknown, or generally
unrecognized . . . .” In re Country Oven, No. 87354443, 2019 WL 6170483, at *7 (TTAB
2019). In this case, as shown by the third-party use and registration evidence
discussed above, the relatedness of the goods and services is generally recognized
because the goods and services of both parties relate to hearing health. Accordingly,
the Examining Attorney need only show that the goods and services at issue are
“related in some manner” or that “the circumstances surrounding their marketing
are such that they could give rise to the mistaken belief that they emanate from the
same source.” Coach Servs., 688 F.3d at 1369.
We find that the third-party registration evidence and marketplace use evidence,
when viewed in tandem, sufficiently demonstrate that relevant consumers have
become accustomed to seeing Applicant’s services and Registrant’s goods being
provided under the same mark by a single entity. Accordingly, we find that the
parties’ respective goods and services are related for likelihood of confusion purposes.
The second DuPont factor therefore also favors a conclusion that confusion is likely.
C. Similarity of Trade Channels and Classes of Purchasers
We next consider established, likely-to-continue channels of trade, the third
DuPont factor. Because there are no limitations as to channels of trade or classes of
purchasers in either Applicant’s application or the cited registration and the
identified goods and services are related, we must presume that Applicant’s services
and Registrant’s goods travel through all normal and usual trade channels for such

Serial No. 97036010
18
goods and services, and that they are sold or provided to all classes of prospective
purchasers for those goods and services. Stone Lion, 746 F.3d at 1322-23; see also
Coach Servs., 668 F.2d at 1370 (absent limitation “goods are presumed to travel in all
normal channels ... for the relevant goods”).
The only probative evidence relating to the trade channels through which the
goods and services at issue travel is the third-party website evidence submitted by
the Examining Attorney discussed above. This evidence shows that Applicant’s
services and Registrant’s goods are the type of goods and services that may be offered
and provided in the same online marketplace by providers of hearing-related goods
and services to similar or overlapping purchasers. We additionally note that the third
parties featured in the online marketplace evidence provide their services and goods
at their brick-and-mortar establishments and are available to the general public.
Therefore, the third DuPont factor also weighs in favor of finding a likelihood of
confusion.
D. Sophistication of Consumers
The fourth DuPont factor considers the “conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ v. careful, sophisticated purchasing.” DuPont, 476
F.2d at 1361. Applicant argues that its patients seek advanced and personalized
medical care for hearing loss, tinnitus, vertigo, and balance disorders and that the
purchasing process involves diagnostic testing, professional consultations, and

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19
clinical decision-making.30 As such, Applicant maintains that the services offered
under its mark are selected with a high degree of care from consumers.31
Because individuals seeking medical treatment for auditory issues are the
relevant purchasers who will encounter the parties’ goods and services and because
of the nature of Applicant’s services, it is logical that the relevant purchasers will
exercise a higher degree of purchasing care when seeking medical testing and
treatment for issues with their hearing.
We nonetheless observe that even if customers of Applicant’s services are
regarded as sophisticated and discriminating consumers who select Applicant’s
services with care rather than on impulse, the fact that purchasers are sophisticated
or knowledgeable in a particular field does not necessarily mean that they are
sophisticated or knowledgeable in the field of trademarks or immune from source
confusion. See, e.g., In re Shell Oil Co., 922 F.2d 1204, 1208 (Fed. Cir. 1993)
(indicating that “even sophisticated purchasers can be confused by very similar
marks”); Wincharger Corp. v. Rinco, Inc., 297 F.2d 261, 264 (CCPA 1962) (“It is true
that in most instances technicians would use the products of either party and they
are a discriminating group of people but that does not eliminate the likelihood of
purchaser confusion here. Being skilled in their own art does not necessarily preclude
their mistaking one trademark for another when the marks are as similar as those
30 Applicant’s Supplemental Appeal Brief, p. 9, 15 TTABVUVE 11.
31 Id.

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20
here in issue, and cover merchandise in the same general field.”); In re Decombe, No.
90592586, 1988 WL 252337, at *3 (TTAB 1988).
This is especially true here, where the marks at issue are highly similar, the goods
and services are related, and the trade channels overlap. “That the relevant class of
buyers may exercise care does not necessarily impose on that class the responsibility
of distinguishing between similar trademarks for similar goods [and services].
‘Human memories even of discriminating purchasers . . . are not infallible.”’ In re
Rsch. & Trading Corp., 793 F.2d 1276, 1279 (Fed. Cir. 1986) (quoting Carlisle Chem.
Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 1406 (CCPA 1970)); see also
In re Wilson, No. 75285881, 2001 WL 58395, at *3 (TTAB 2001) (where marks are
very similar and goods related, confusion may be likely even among sophisticated
purchasers).
Overall, we find that the fourth DuPont factor weighs slightly against the
conclusion that confusion is likely.
E. Actual Confusion
The seventh DuPont factor considers the “nature and extent of any actual
confusion.” DuPont, 476 F.2d at 1361. The eighth DuPont factor contemplates the
“length of time during and conditions under which there has been concurrent use
without evidence of actual confusion.” Id. Applicant argues that although Registrant
claims to have started using the cited mark since at least 2015, there is no evidence
of record showing actual confusion between Applicant and Registrant.32 Applicant
32 Applicant’s Supplemental Appeal Brief, p. 10, 15 TTABVUE 12.

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concludes, therefore, that “[t]this absence of confusion confirms that any alleged
likelihood is purely theoretical, which is insufficient to support the refusal.”33
“[A] showing of actual confusion is not necessary to establish a likelihood of
confusion.” Herbko Int’l v. Kappa Books, 308 F.3d 1156, 1164 (Fed. Cir. 2002). In the
context of an ex parte appeal, where there has been no opportunity for evidence of
actual confusion to be presented by Registrant, the probative value of evidence
purporting to show the absence of actual confusion is limited. See Majestic Distilling,
315 F.3d at 1317 (“The lack of evidence of actual confusion carries little weight,
especially in an ex parte context.”) (internal citation omitted); see also In re Guild
Mortg. Co., No. 86709944, 2020 WL 1639916, at *8-9 (TTAB 2020). 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 period of time in the
same markets as those served by the Registrant under the cited mark. Citigroup, Inc.
v. Cap. City Bank Grp., Inc., No. 91177415, 2010 WL 595586, at *17 (TTAB 2010),
aff'd, 637 F.3d 1344 (2011); Gillette Can. Inc. v. Ranir Corp., No. 91082769, 1992 WL
174453, at *6 (TTAB 1992). In other words, for the absence of actual confusion to be
probative, there must have been a reasonable opportunity for confusion to have
occurred. Barbara’s Bakery Inc. v. Landesman, No. 91157982, 2007 WL 196406, *5
(TTAB 2007) (the probative value of the absence of actual confusion depends upon
there being a significant opportunity for actual confusion to have occurred).
33 Id.

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Here, there is no evidence of record as to the amount, extent, and nature of
Applicant’s sales and advertising of Applicant’s identified services under its involved
mark. Nor is there any evidence regarding the scope, extent, and nature of
Registrant’s use of its cited mark in connection with the goods listed in the cited
registration. Thus, we cannot conclude that the marks were used in the same markets
for a significant period of time.
Accordingly, the seventh and eighth DuPont factors are neutral.
III. Balancing the DuPont Factors
We have considered all of the arguments and evidence of record and all relevant
DuPont factors. We find that (1) the marks at issue are highly similar, (2) Applicant’s
services and Registrant’s goods are related, and (3) the parties’ respective goods and
services travel, at a minimum, in overlapping trade channels and are offered to
overlapping classes of consumers. The seventh and eighth DuPont factors are neutral.
While the fourth DuPont factor may slightly weigh against a finding of likelihood of
confusion, it is outweighed by the highly similar marks at issue, the relatedness of
the goods and services, and the overlapping trade channels and classes of purchasers.
See HRL Assocs. Inc. v. Weiss Assocs. Inc., 1989 WL 274391, at *4 (TTAB 1989), aff’d,
Weiss Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546 (Fed. Cir. 1990) (similarities
of goods and marks outweigh sophisticated purchasers, careful purchasing decision,
and expensive goods).
As such, we conclude that Applicant’s standard-character mark HAPPY EARS
HEARING, as used in connection with the identified services, so resembles the cited

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mark HAPPY EARS (also in standard characters) for the goods identified in the cited
registration as to be likely to cause confusion under Section 2(d) of the Trademark
Act, notwithstanding any purchaser sophistication.
Decision: The refusal to register Applicant’s HAPPY EARS HEARING mark
under Section 2(d) of the Trademark Act is affirmed.