91292154•Agricultural Utilization Research Institute v. Ejec Ventures, LLC
Agricultural Utilization Research Institute v. Ejec Ventures, LLC
91292154Ttab8 ott 2026
Testo completo
This Opinion is Not a Precedent of the TTAB Mailed: October 8, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Agricultural Utilization Research Institute v. Ejec Ventures, LLC _____ Opposition No. 91292154 _____ Alexander J. Ferrell of Best & Flanagan, LLP for Agricultural Utilization Research Institute. Michael R. Rizzo and Sarah Leighton of Saunders & Silverstein LLP for Ejec Ventures, LLC. _____ Before Lykos, Larkin, and Lebow, Administrative Trademark Judges. Opinion by Larkin, Administrative Trademark Judge: Ejec Ventures, LLC (“Applicant”) seeks registration on the Principal Register of the standard-character mark AURI for “Nutritional supplements in the form of gummies” in International Class 5.1 1 Application Serial No. 97644906 was filed on October 24, 2022 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claimed first use of the mark anywhere and first use of the mark in commerce at least as early as April 26, 2022.
Opposition No. 91292154 - 2 - Agricultural Utilization Research Institute (“Opposer”) opposes registration of Applicant’s AURI mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the sole ground of likelihood of confusion with its two registered marks shown below: registered on the Principal Register for Research and development in the field of agriculturally- based innovations; Scientific and technological services, namely, scientific and technical assistance in the nature of integrated scientific research, product development and product testing for agricultural coproducts, biobased products, renewable energy products and food; Scientific research consulting in the field of biobased products, renewable energy, coproduct utilization and food; Technology consultation and research in the field of biobased products, renewable energy, coproduct utilization and food in International Class 42,2 and 2 Registration No. 4283975 (the “’975 Registration”) issued on January 29, 2013 and has been renewed. Opposer describes the mark as follows: “The mark consists of curved ribbons of gold, white, green and blue within a rectangular field with curved lower left and upper right corners above the acronym ‘auri’ above the stacked words ‘Agricultural Utilization Research Institute’.” The colors white, brown, green, blue, and gold are claimed as a feature of the mark. The disclaimer statement in the ’975 Registration states that Opposer has disclaimed the exclusive right to use “AGRICULTURAL UTILIZATION OR RESEARCH INSTITUTE” apart from the mark as shown. 12 TTABVUE 6 (emphasis added).
Opposition No. 91292154 - 3 - registered on the Principal Register for Arranging and conducting of educational seminars, online and in-person educational forums, panel discussions, professional network groups, conferences, webinars, classes, and programs with thought leaders in the field of agriculturally-based innovations and utilization of agricultural research in International Class 41.3 Opposer also asserts prior common-law rights in the mark AURI for providing technical assistance and applied research services in agriculture, and product development assistance to create new products. The case is fully briefed.4 We dismiss the opposition because Opposer did not prove its likelihood of confusion claim by a preponderance of the evidence. 3 Registration No. 7011051 (the “’051 Registration”) issued on March 28, 2023. Opposer describes the mark as follows: “The mark consists of curved ribbons of gold, white, green and blue within a rectangular field with curved lower left and upper right corners above the word ‘auri’ in blue followed by ‘Connects:’ in gold over an arrangement of gold lines emanating from a center point and connecting with several gold circles.” The colors white, green, blue, and gold are claimed as a feature of the mark. 4 Citations in this opinion to the briefs and record refer to TTABVUE, the Board’s online docketing system. The number preceding TTABVUE corresponds to the docket entry number, and any numbers following TTABVUE refer to the page(s) of the docket entry where the cited materials appear. Opposer’s redacted main brief appears at 39 TTABVUE, its unredacted confidential main brief appears at 40 TTABVUE, its redacted reply brief appears at 44 TTABVUE, and its unredacted confidential reply brief appears at 43 TTABVUE. Applicant’s redacted brief appears at 41 TTABVUE and its unredacted confidential brief appears at 42 TTABVUE. Unless otherwise indicated, we will cite the parties’ redacted publicly accessible briefs.
Opposition No. 91292154 - 4 - I. Record The record includes the pleadings,5 in which Applicant denied the salient allegations in Opposer’s Notice of Opposition, the file history of the opposed application, by operation of Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1),6 and the following materials submitted by the parties during their respective trial and rebuttal periods:7 Opposer • Declaration of Shannon M. Schlecht, Opposer’s Executive Director, and Exhibits PX1-PX11 thereto, 7 TTABVUE 1-38; • Declaration of Jennifer Voegele, Opposer’s Director of Marketing Communications, and Exhibits PX12-PX55 thereto, 9 TTABVUE 1-113;8 • Notice of Reliance on Applicant’s discovery responses, and Exhibits PX56- PX59 thereto, 11 TTABVUE 1-55;9 5 The operative pleadings are Opposer’s Notice of Opposition, 1 TTABVUE, and Applicant’s Answer to Notice of Opposition. 4 TTABVUE. 6 Citations in this opinion to the application record are to pages in the downloadable .pdf version of the Trademark Status & Document Retrieval (“TSDR”) database of the United States Patent and Trademark Office (“USPTO”). 7 As discussed below, some of the materials in the record are the subject of evidentiary objections by Applicant. 8 Certain exhibits to the Voegele Declaration were redacted as confidential under the Board’s Standard Protective Order. The unredacted version of the Voegele Declaration and these confidential exhibits were filed under seal at 8 TTABVUE. 9 Certain portions of Applicant’s discovery responses were redacted as confidential under the Board’s Standard Protective Order. The unredacted versions of those responses were filed under seal at 10 TTABVUE. Unlike Applicant, Opposer did not designate its Notices of Reliance by number. Although this is not required, using numbers enables more convenient citation of this form of evidence by the Board.
Opposition No. 91292154 - 5 - • Notice of Reliance on Official Records, and Exhibits PX60-PX61 thereto, 12 TTABVUE 1-13;10 • Notice of Reliance on Applicant’s Produced Documents, and Exhibits PX62- PX65 thereto, 14 TTABVUE 1-24; • Notice of Reliance on Internet Documents, and Exhibits PX66-PX71 thereto, 13 TTABVUE 1-27; • Notice of Reliance on Official Records, and Exhibits PX72-PX82 thereto, 15 TTABVUE 1-66; • Notice of Filing of Oral Cross-Examination of Applicant’s witness Evan Johansen and Exhibits 1-6 thereto, 34 TTABVUE 1-90; 35 TTABVUE 1- 90;11 and • Rebuttal Trial Declaration of Ms. Voegele, and Exhibits PX44.1-PX55.1 thereto, filed during Opposer’s rebuttal period, 36-37 TTABVUE 1-14. 10 The “Official Records” here are USPTO electronic records regarding Opposer’s pleaded registrations. 11 Opposer filed an entirely redacted version of the Johansen cross-examination transcript at 35 TTABVUE, and an unredacted version of the transcript under seal at 34 TTABVUE, because “Applicant’s counsel asserts that the entire transcript is confidential.” Id. at 2. “Confidentiality designations do not provide absolute immunity from the public disclosure of materials so designated.” El Roblar Inv. Prop. LLC v. Roe, No. 91272200, 2025 WL 2718983, at *2 n.13 (TTAB 2025) (quoting Kohler Co. v. Honda Gikken Kogyo K.K., No. 91200146, 2017 WL 6547628, at *5 (TTAB 2017) (citing Noble House Home Furnishings, LLC v. Floorco Enters., LLC, No. 92057394, 2016 WL 3357265, at *4 n.21 (TTAB 2016) (“The Board needs to be able to discuss the evidence of record, unless there is an overriding need for confidentiality, so that the parties and a reviewing court will know the basis of the Board's decisions.”)). See also Trademark Rule 2.116(g), 37 C.F.R. § 2.116(g) (“The Board may treat as not confidential that material which cannot reasonably be considered confidential, notwithstanding a designation as such by a party.”)). We have reviewed Mr. Johansen’s cross-examination testimony and find very little that is truly confidential. Consistent with our duty to discuss the record evidence to explain our decision, we will discuss Mr. Johansen’s cross-examination testimony, and other evidence in the record designated as confidential, to the extent that it is relevant, unless it involves information that is truly sensitive business information. Opposer also filed the Johansen cross-examination transcript in a condensed fashion, with four pages of testimony per sheet, 34-35 TTABVUE, in violation of Trademark Rule 2.123(g)(1), 37 C.F.R. § 2.123(g)(1), which states that “[t]he deposition transcript must be submitted in full-sized format (one page per sheet), not condensed (multiple pages per sheet).” We have considered the transcript, but note that its review was made more difficult because of its condensed format, and admonish Opposer’s counsel to comply with the rule in any future proceedings.
Opposition No. 91292154 - 6 - Applicant • Declaration of Mr. Johansen, Applicant’s Chief Executive Officer, and Exhibits EJV12-EJV22 thereto, 28 TTABVUE 1-136;12 • Transcript of the cross-examination deposition of Ms. Voegele, and Exhibits 1-2,4-6, 5, 8, 40, and 44 thereto, 21 TTABVUE 1-143;13 • Transcript of the cross-examination deposition of Mr. Schlecht, and Exhibits 1-3 thereto, 23 TTABVUE 2-86;14 • First Notice of Reliance on Opposer’s discovery responses and produced documents, and Exhibits EJV1-EJV3 thereto, 25 TTABVUE 1-50; and • Second Notice of Reliance on what Applicant describes as “publicly available documents” and “Internet searches,” and Exhibits EJV4-EJV11 thereto, 26 TTABVUE 3-38. II. Evidentiary Issues In an appendix to its brief, Applicant objects to multiple exhibits to Opposer’s declarations on the basis of lack of authentication, hearsay, relevance, the Best Evidence Rule, Opposer’s failure to disclose certain materials during discovery and during a cross-examination deposition, and Opposer’s use of improper rebuttal 12 Certain portions of the Johansen Declaration and exhibits were designated as confidential under the Board’s Standard Protective Order. An unredacted version of the Johansen Declaration was filed under seal at 27 TTABVUE and 29 TTABVUE. On March 4, 2026, the day on which Opposer’s main brief was filed, Applicant filed a document captioned “RESUBMISSION OF PUBLIC TRIAL DECLARATION TO SUBSTITUTE AND SUPERSEDE DOCKET ENTRY 28 TTABVUE,” 38 TTABVUE 2, with “additional redactions to substitute and supersede the public trial declaration at 28 TTABVUE,” with the consent of Opposer. 38 TTABVUE 2. Except where otherwise indicated, we will cite the Johansen Declaration that appears at 38 TTABVUE. 13 The publicly accessible version of the transcript redacts confidential Exhibits 5, 8, 40, and 44, which are filed under seal at 22 TTABVUE. 14 The publicly accessible version of the transcript redacts confidential Exhibit 3, which is filed under seal at 24 TTABVUE.
Opposition No. 91292154 - 7 - evidence. 41 TTABVUE 44-55. Opposer responds to these objections in an appendix to its reply brief. 44 TTABVUE 16-24. A. Relevance We begin with Applicant’s relevance objections, which are asserted against Exhibits PX18, PX22, PX24, and PX26 to the Voegele Declaration. 41 TTABVUE 46- 47. Each of these four exhibits is an email received by Opposer that Ms. Voegele testified “appears to be intended for [Applicant].” Voegele Decl. ¶¶ 13, 17, 19, 21 (9 TTABVUE 8-9). Applicant argues that Exhibit PX18 is identical to Exhibit PX52;15 that Exhibit PX22 is identical to Exhibit PX43;16 that Exhibit PX24 is identical in substance to Exhibit PX25, which was sent on a different day; and that Exhibit PX26 is identical to Exhibit PX53.17 41 TTABVUE 46-47. Opposer responds that these are “[r]elevant communications intended for [Applicant].” 44 TTABVUE 18. Applicant is correct that the referenced pairs of exhibits are identical in content. That does not make them irrelevant,18 but they are duplicative and unnecessary. Cf. 15 The contents of Exhibits PX18 and PX52 are redacted in the publicly accessible Voegele Declaration. 9 TTABVUE 39, 107. The contents of both Exhibits appear in the Voegele Declaration filed under seal. 8 TTABVUE 39, 107. 16 The contents of Exhibits PX22 and PX43 are redacted in the publicly accessible Voegele Declaration. 9 TTABVUE 47, 89. The contents of both Exhibits appear in the Voegele Declaration filed under seal. 8 TTABVUE 47, 89. 17 The contents of Exhibits PX26 and PX53 are redacted in the publicly accessible Voegele Declaration. 9 TTABVUE 55, 113. The contents of both Exhibits appear in the Voegele Declaration filed under seal. 8 TTABVUE 55, 109. 18 “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401.
Opposition No. 91292154 - 8 - Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, at *7 (TTAB 2022) (criticizing the parties for “fil[ing] duplicative evidence by different methods of introduction”) (citation omitted). We will review the emails in Exhibits PX18, PX22, and PX26 for whatever probative value they may have, and will disregard their counterparts in Exhibits PX52, PX43, and PX53. The fact that the email in Exhibit PX24 was sent to Opposer on two different days may have independent probative value, and we will consider both Exhibit PX24 and Exhibit PX 25 for whatever probative value they may have. We overrule Applicant’s relevance objection. B. Hearsay Applicant’s hearsay objections are asserted against Exhibits PX16 and PX17 to the Voegele Declaration, which are internal emails from one of Opposer’s employees, Amy Lund, to another employee, Lea Reitmeier. Voegele Decl. Exs. PX16-PX17 (9 TTABVUE 35, 37). Exhibit PX16 is dated January 11, 2024, and bears the “Subject” line “I just got another phone call from a lady looking for gummies,” but contains no text. 9 TTABVUE 35. Exhibit PX17 is dated January 4, 2024 and bears the “Subject” line “Phone call about auri gummies” and contains text that is redacted in the publicly accessible Voegele Declaration. Id. at 37.19 19 The body of Exhibit PX17 appears in the Voegele Declaration filed under seal. 8 TTABVUE 37. It is not clear why Opposer redacted the entire body of the email rather than just the caller’s name and telephone number. Ms. Lund’s recitation of the substance of the calls, and her response to the caller, cannot be considered confidential, and we will discuss them below.
Opposition No. 91292154 - 9 - Applicant objects to these emails under Rule 802 of the Federal Rules of Evidence, captioned “The Rule Against Hearsay,” on the ground that they are “inadmissible to support [a] claim of consumer confusion between Opposer and Applicant.” 41 TTABVUE 45. Opposer responds (1) that these objections are “an alleged procedural defect that is waived because it was not raised prior to the trial brief,” (2) that the emails are “[n]ot hearsay because [they are] not offered to prove the truth of the matter asserted in [the] statement[s],” and (3) that “even if the Board were to consider them hearsay, the statements are admissible as an exception as evidence of the declarant’s state of mind.” 43 TTABVUE 17-18 (citations omitted). We begin by rejecting Opposer’s claim that Applicant waived its hearsay objections because Applicant asserted them for the first time in its brief. “As a general rule, [procedural] objections that are curable must be seasonably raised, or they will be deemed waived,” Flame & Wax, Inc. v. Laguna Candles, LLC, No. 92072343, 2022 WL 3083070, at *5 (TTAB 2022) (quotation and quotation marks omitted), but “an objection to evidence on the basis that it constitutes hearsay is a substantive objection . . . .” RLP Ventures, LLC v. Panini Am., Inc., No. 91268816, 2023 WL 6442609, at *8 n.24 (TTAB 2023) (citation omitted). See also Int’l Dairy Foods Ass’n v. Interprofession Du Gruyère, No. 91232427, 2020 WL 4559436, at *4 (TTAB 2020) (hearsay objections raised for the first time in a party’s brief are timely), aff’d, 575 F. Supp. 3d 627 (E.D. Va. 2021), aff’d, 61 F.4th 407 (4th Cir. 2023). We will consider the merits of Applicant’s objections.
Opposition No. 91292154 - 10 - Hearsay is “a statement that: (1) the declarant20 does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c)(1)-(2). The two challenged emails involve “multiple levels of hearsay statements made by several out-of-court declarants,” Philanthropist.com, Inc. v. Gen. Conf. Corp. of Seventh-Day Adventists, No. 92065178, 2021 WL 2472776, at *14 (TTAB 2021), namely, the two callers who contacted Ms. Lund, and Ms. Lund herself, who related the callers’ statements to Ms. Reitmeier. Opposer offers these emails to show that Ms. Lund “got another phone call from a lady looking for gummies,” 9 TTABVUE 35, and that she received two messages from a particular caller about ordering gummies and returned the calls and told the caller that the caller had the wrong number. 8 TTABVUE 37. Each level of hearsay must be independently admissible. See Fed. R. Evid. 805 (“Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”). “[S]tatements of customer confusion in the trademark context fall under [the] Fed. R. Evid. 803(3) ‘state of mind’ exception to the hearsay rule.” Dan Foam Aps. v. Sleep Innovations, Inc., No. 92054201, 2013 WL 3168101, at *4 (TTAB 2013) (citations omitted). The callers’ out-of-court statements to Ms. Lund might be admissible under this exception, or because they are not offered to prove the truth of what the caller 20 To be clear, the word “declarant” in Rule 801(c)(1) does not refer to a witness, such as Ms. Voegele, who testifies in a Board proceeding through a declaration rather than through oral examination in a testimony deposition, but instead to any person who makes a statement while not testifying in a proceeding.
Opposition No. 91292154 - 11 - said, but merely that the caller called Opposer, who does not sell gummies, rather than Applicant, who does. But Ms. Lund did not testify at trial, and her out-of-court statements to Ms. Reitmeier in the emails, which are offered to prove that the calls occurred and to relate their substance, are hearsay that is not subject to any exception to the rule against hearsay. We sustain Applicant’s objections to Exhibits PX16 and PX17 to the Voegele Declaration and have given them no consideration in our decision. C. Lack of Authentication Applicant objects to Exhibits PX5, PX6, PX7, and PX8 to the Schlecht Declaration, which are screenshots of pages from Opposer’s pages on Facebook (now Meta), LinkedIn, X (formerly Twitter), and YouTube, Schlecht Decl. ¶ 20; Exs. PX5, PX6, PX7, and PX8 (7 TTABVUE 5, 24-31), under Rule 901 of the Federal Rules of Evidence, on the ground that “[n]either the screenshot nor declaration list the URL or access date.” 41 TTABVUE 44-45. Opposer responds that “[t]his is an alleged procedural defect that is waived because it was not raised prior to the trial brief.” 43 TTABVUE 16-17. We agree with Opposer. Mr. Schlecht’s failure to identify the URL and access date of Opposer’s social media pages is a “procedural shortcoming [that] has been waived” by Applicant’s failure to promptly object to the Schlecht Declaration when it was filed. Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 WL 16646840, at *10 n.26 (TTAB 2022) (citations omitted). We overrule Applicant’s
Opposition No. 91292154 - 12 - authentication objections and will consider the challenged exhibits for whatever probative value they may have. D. Best Evidence Rule Applicant objects to Exhibits PX44, PX45, PX46, PX47, PX48, PX49, PX50, PX54, and PX55 to the Voegele Declaration, Voegele Decl. ¶¶ 39-45, 49-50 (8 TTABVUE 11- 13, 90-102, 110-13), which are transcripts of voicemail messages left by outside callers,21 on the ground that they violate the so-called “Best Evidence Rule” in Rule 1002 of the Federal Rules of Evidence, formally captioned “Requirement of the Original.” Fed. R. Evid. 1002. Applicant “objects to the generated transcript of a purported voicemail message” and argues that “[t]o properly introduce the voicemail message, which exists, Opposer should submit the original recording during its primary trial period.” 41 TTABVUE 47-50. Opposer responds that “[t]his is an alleged procedural defect that is waived because it was not raised prior to the trial brief,” and that the “[r]ecordings [were] provided during [the] trial disclosure period after counsel questioned [the] content of transcriptions in [the] Voegele cross-examination. e.g. (21 TTABVUE 37).” 44 TTABVUE 18-21. “The ‘best evidence rule’ is a common law proposition that has been codified in Rule 1002 of the Federal Rules of Evidence, which states: ‘To prove the content of 21 In her Declaration, Ms. Voegele misdescribed Exhibits PX44 and PX46 as emails rather than transcriptions of voicemail messages. Voegele Decl. ¶¶ 39, 41 (9 TTABVUE 11-12). The contents of the transcriptions are redacted in the publicly accessible Voegele Declaration, but appear in the version filed under seal at 8 TTABVUE. Beyond caller identification and contact information, we do not consider the contents of the transcriptions to be confidential.
Opposition No. 91292154 - 13 - a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.’” Mag Instrument, Inc. v. Brinkmann Corp., No. 91163534, 2010 WL 3253200, at *3 (TTAB 2010). Rule 1001(b) states that a “recording” “consists of letters, words, numbers, or their equivalent recorded in any manner,” Fed. R. Evid. 1001(b), and Rule 1001(d) states that “[a]n ‘original’’ of a . . . recording means the . . . recording itself or any counterpart intended to have the same effect by the person who executed or issued it.” Fed. R. Evid. 1001(d).22 With the two exceptions noted above, Ms. Voegele identified each of the challenged exhibits to her Declaration as “a transcription for a voicemail.” Voegele Decl. ¶¶ 39- 45, 49-50 (8 TTABVUE 11-13). She testified about the actual recordings of the voicemails on cross-examination, describing them as the product of artificial intelligence (“AI”) and testifying that she did not believe that they had been deleted. Voegele Cross Tr. 39:21-40:1-5; 41:7-16, 22-42:8 (21 TTABVUE 41-44). “Procedural objections to testimony and evidence must be raised promptly to allow an opportunity to cure.” RLP Ventures, 2023 WL 6442609, at *3 (citation omitted). “[O]bjections to . . . testimony, on substantive grounds, such as that the proffered evidence constitutes hearsay or improper rebuttal, or is incompetent, irrelevant, or immaterial, generally are not waived for failure to raise them promptly, unless the 22 We find that in the case of the objected-to voicemail messages, an AI transcription is not a “counterpart intended to have the same effect by the person who executed or issued it” within the meaning of Rule 1001(d) because AI is not a “person.”
Opposition No. 91292154 - 14 - ground for objection is one which could have been cured if raised promptly.” Flame & Wax, 2022 WL 3083070, at *5 (internal quotation and quotation marks omitted)). By definition, a voicemail message is a “recording” within the meaning of Rule 1001(b) because it records the caller’s message, and it is self-evident that at the time that the message was recorded and then transcribed, an actual recording existed. Ms. Voegele recalled listening to the original recording of at least one of the transcribed messages, Voegele Cross Tr. 39:25-40:5 (21 TTABVUE 41-42), and confirmed that the recordings were available. Voegele Cross Tr. 39:21-40:1-5; 41:7-16, 22-42:8 (21 TTABVUE 41-44). We need not decide whether a Best Evidence Rule objection is procedural or substantive in every case. On these facts, the use of the transcriptions instead of the actual recordings could have been cured if the Best Evidence Rule objection had been raised promptly. The exhibits were identified as transcriptions of voicemail messages, which are, as noted above, “recordings,” so Applicant knew or should have known that recordings existed and could have demanded them during Opposer’s trial period. Applicant waived the objection by waiting until the filing of its brief to assert it. We overrule Applicant’s Best Evidence Rule objections to Exhibits PX44, PX45, PX46, PX47, PX48, PX49, PX50, PX54, and PX55 to the Voegele Declaration, and will consider them for whatever probative value they may have, taking into account that Ms. Voegele admitted on cross-examination that AI made errors in at least two of the transcriptions, Voegele Cross. Tr. 35:13-36:1, 14-37:3; 39:6-20 (21 TTABVUE 37-39, 41), and that such transcription errors are “very common when AI is hearing things
Opposition No. 91292154 - 15 - and trying to translate them into text because they’re not human beings. They’re just . . . spelling it out the way it sounds to them and what they think it could be.” Voegele Cross. Tr. 36:24-37:3 (21 TTABVUE 38-39). E. Failure to Disclose/Improper Rebuttal Testimony Applicant objects to Exhibits PX44.1, PX45.1, PX46.1, PX47.1, PX48.1, PX49.1, PX50.1, PX54.1, and PX55.1 to the Voegele Rebuttal Declaration, 37 TTABVUE 3-4, which are the actual audio recordings of the calls, on the grounds that Opposer failed to disclose the existence of these recordings during discovery, and that it is improper to submit the actual recordings during Opposer’s rebuttal period when they were available during Opposer’s case-in-chief and should have been submitted then. 41 TTABVUE 50-54. We need not decide this objection because we have found above that Applicant waived its Best Evidence Rule objection to the transcriptions of the recordings, and we thus need not rely on the recordings themselves in our decision. Flame & Wax, 2022 WL 3083070, at *7. F. Johansen Cross-Examination Exhibit 6 and Related Testimony Finally, Applicant objects to Exhibit 6 to the Johansen cross-examination deposition and “all accompanying testimony” on the ground that Opposer failed to disclose the existence of this email exchange. 41 TTABVUE 55.23 Applicant states 23 Exhibit 6 to the Johansen cross-examination deposition transcript is an email chain that begins with an October 5, 2025 email from a consumer to Applicant requesting that the consumer’s order be cancelled as soon as possible and that a refund be issued. The next email is a response from “Stephanie” at Applicant confirming the cancellation and discussing a possible refund for unopened packages. The consumer next responded to “Stephanie” at Applicant’s customer service email address and copied Ms. Voegele and Ashley Harguth at Opposer’s email address at auri.org regarding the cancellation. Ms. Voegele responded to the consumer that “Ashley and I are with the Agricultural Utilization Research Institute, a
Opposition No. 91292154 - 16 - that such “an objection was made on the record” of Mr. Johansen’s cross-examination. Id. Opposer responds in its reply brief that “[t]his is an alleged procedural defect that is waived because it was not raised prior to the trial brief,” and that “[t]his document was in [Applicant’s] possession already, and [was] provided during the trial period.” 44 TTABVUE 24. Opposer does not specify exactly when the document was “provided during the trial period,” but when Opposer’s counsel marked the exhibit at Mr. Johansen’s cross- examination deposition on November 20, 2025, Applicant’s counsel stated that “[w]e’re going to object to this exhibit. This is the first time -- last night was the first time that we’ve ever been shown this document.” Johansen Cross Tr. 68:21-69:1 (34 TTABVUE 22).24 Opposer’s counsel did not dispute that statement, and Mr. Johansen testified that he had not seen the email chain before and that to the best of his knowledge, a search of Applicant’s emails had not uncovered it. Johansen Cross Tr. 74:17-21 (34 TTABVUE 24). We find that Exhibit 6 was not disclosed to Applicant prior to the night before Mr. Johansen’s cross-examination, and we sustain Applicant’s objection to it and have not considered it or Mr. Johansen’s related testimony as substantive evidence. nonprofit supporting the rural economy in Minnesota. We have no relationship to AURI Nutrition. Please take us off this exchange and all other communications regarding this matter.” The consumer responded “Will do. Apologize was trying anyone who could help. Have a great day.” 34 TTABVUE 86-90. 24 Following that objection, Applicant’s counsel did not instruct Mr. Johansen not to respond to Opposer’s counsel’s questioning about Exhibit 6.
Opposition No. 91292154 - 17 - III. The Parties and Their Marks Opposer is a nonprofit corporation funded in part by the State of Minnesota. Schlecht Decl. ¶ 12 (7 TTABVUE 3-4). Opposer helps develop new uses for agricultural products through science and technology in partnership with farmers, businesses and entrepreneurs. Schlecht Decl. ¶ 10 (7 TTABVUE 3). Opposer is also a thought leader in the agricultural space, and hosts events, webinars, and other seminars for the industry, including the food industry, whose goal is to focus on Opposer’s core focus areas of food, renewable energy, and biobased products innovation. Schlecht Decl. ¶ 11 (7 TTABVUE 3). Opposer owns the two registrations shown and discussed above, and claims use of the AURI mark at common law since at least as early as January 1992. Schlecht Decl. ¶ 16 (7 TTABVUE 4). The mark “AURI” abbreviates “Agricultural Utilization Research Institute.” Schlecht Decl. ¶ 16 (7 TTABVUE 4). It is often used in lowercase font. Schlecht Decl. ¶ 17 (7 TTABVUE 4). Applicant was founded in August 2021, Johansen Decl. ¶ 1 (38 TTABVUE 5), and does business as “Auri Nutrition.” Johansen Decl. ¶ 3 (38 TTABVUE 5-6). Applicant specializes in science-backed functional mushroom supplements formulated to support energy, focus, mood, and overall well-being. Johansen Decl. ¶ 4 (38 TTABVUE 6). Mr. Johansen testified that “Auri Nutrition started using the AURI trademark in April 2022 and first used the AURI trademark in U.S. commerce in May
Opposition No. 91292154 - 18 - 2022,” and that the “trademark has been in continuous use with our mushroom supplement products since that date.” Johansen Decl. ¶ 7 (38 TTABVUE 7).25 IV. Opposer’s Statutory Entitlement to a Cause of Action “Entitlement to a statutory cause of action is an element of the plaintiff’s case in every inter partes proceeding.” Cielo e Terra, S.p.A. v. Hoteles y Viñedos del Valle de Guadalupe S.A. de C.V., No. 91287216, 2026 WL 2624328, at *2 (TTAB 2026) (citations omitted). “Section 13 of the Trademark Act, 15 U.S.C. § 1063, provides that [a]ny person who believes that he would be damaged by the registration of a mark . . . may . . . file an opposition with the USPTO . . . .” Id. (internal quotation and quotation marks omitted). “A plaintiff may oppose registration of a mark when (1) [its] interests are within the zone of interests protected by the statute [(i.e., it has a real interest in the outcome of the proceeding)] and (2) [it] has a reasonable belief in damage that would be proximately caused by registration of the mark in violation of the opposition statute.” Id. at *3 (internal quotation and quotation marks omitted). Applicant admitted in discovery that it does not challenge Opposer’s entitlement to a statutory cause of action, Applicant’s Amended Resp. to Req. for Adm. Nos. 31- 32 (11 TTABVUE 35-36), and did not address entitlement in its brief, but a plaintiff’s entitlement is a necessary element in every case even if the defendant does not contest it. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1302-07 (Fed. Cir. 2020). 25 As noted above, in the opposed application, Applicant claimed first use of the mark anywhere and first use of the mark in commerce at least as early as April 26, 2022.
Opposition No. 91292154 - 19 - Opposer argues that it “is entitled to oppose registration of [Applicant’s] Auri Mark because of [Opposer’s] incontestable registration for the AURI Mark and its continuous use of those marks for more than 34 years.” 39 TTABVUE 17. Opposer properly made of record its pleaded registrations of its AURI-formative marks showing current title and status, 12 TTABVUE 2-13, “which ‘demonstrate[ ] a plausible Trademark Act Section 2(d) claim against the involved application for the mark’ [AURI].” Cielo e Terra, 2026 WL 2624328, at *3 (quoting Heil Co. v. Tripleye GmbH, No. 91277359, 2024 WL 4925901, at *15 (TTAB 2024)). Opposer has established its statutory entitlement to bring its Section 2(d) claim. V. Opposer’s Section 2(d) Claim “Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), prohibits registration of a mark that ‘[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] of the applicant, to cause confusion, or to cause mistake, or to deceive.” Cielo e Terra, 2026 WL 2624328, at *3 (quoting Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No. 91270181, 2024 WL 1638376, at *4 (TTAB 2024) (quoting 15 U.S.C. § 1052(d)). “To prevail on its Section 2(d) claim, Opposer must show by a preponderance of the evidence that it has either a registration of or priority in its . . . mark[s], and that Applicant’s use of its mark is likely to cause confusion, mistake, or deception regarding the source of the [goods] identified in its Application.” Id. (quoting Sage Therapeutics, 2024 WL 1638376, at *4).
Opposition No. 91292154 - 20 - A. Priority “For purposes of priority, proprietary rights may arise from a prior registration, prior trademark or service mark use, prior use as a trade name, prior use analogous to trademark or service mark use, or any other use sufficient to establish proprietary rights.” Major League Baseball Players Ass’n v. Chisena, No. 91240180, 2023 WL 2986321, at *4 (TTAB 2023) (internal quotation, quotation marks, and citations omitted), aff’d, 2026 WL 60319 (Fed. Cir. 2026). See also Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1162 (Fed. Cir. 2002). Opposer asserts priority based on its registrations and its alleged common-law use. There is no dispute regarding Opposer’s priority based on its pleaded ’975 and ’051 Registrations. Because Opposer properly submitted its registrations showing their current title and status, and Applicant did not counterclaim to cancel them, priority is not at issue with respect to the two registered marks and the services identified in the registrations. Cielo e Terra, 2026 WL 2624328, at *4 (citation omitted). We will focus our analysis under Trademark Act Section 2(d) on the marks shown in, and the services identified in, the ’975 and ’051 Registrations.26 26 The parties dispute Opposer’s priority with respect to its pleaded common-law mark AURI. In its reply brief, Opposer accepts April 2022 as Applicant’s date of first use. 44 TTABVUE 6. Opposer’s evidence of common-law use of AURI prior to that date is (1) Mr. Schlecht’s testimony that Opposer has continually used the mark since 1992, Schlecht Decl. ¶ 16 (7 TTABVUE 4), (2) the cover page from a January 1992 edition of Opposer’s newspaper entitled AG INNOVATION NEWS The Newspaper of the Agricultural Utilization Research Institute, Schlecht Decl. ¶ 23; Ex. PX11 (7 TTABVUE 5, 38), and (3) Mr. Schlecht’s testimony regarding Opposer’s revenues and advertising expenditures between 2000 and 2025. Schlecht Decl. ¶ 24 (7 TTABVUE 5-6). This sparse evidence may be sufficient to show that Opposer used the AURI mark prior to April 2022 in some manner, but common-law trademark rights are established only when a mark is used for particular goods or services, and they are not rights in gross. See Univ. of Notre Dame du Lac v. J. C. Gourmet Food Imps. Co., 703 F.2d 1372,
Opposition No. 91292154 - 21 - B. Likelihood of Confusion As noted above, Opposer pleaded a single claim of likelihood of confusion, 1 TTABVUE 5-6 (Not. of Opp. ¶¶ 11-19), and pursued that claim in its main brief. 39 TTABVUE 16 (arguing that Opposer’s evidence shows that consumers “believe that gummy products marked by [Applicant] with the trademark Auri would come from [Opposer]” because Opposer “is well known in the food space, and indeed, has worked with many clients to produce mushroom and nutritional supplement products.”). Our determination of the likelihood of confusion under Section 2(d) is based on an analysis of the “facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion.” DowntownDC Bus. Improvement Dist. v. Clarke, No. 91275100, 2024 WL 4449409, at *18 (TTAB 2024) (citing In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”)). “We discuss the DuPont factors for which there is relevant argument and evidence.” Id. (citing In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019)). “In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the [goods or] services.” Id. (citing 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 1374 (Fed. Cir. 1983). Opposer’s evidence does not establish use of the AURI mark on any particular services, including any services in addition to those identified in its ’975 and ’051 Registrations. Although Applicant concedes that the evidence may establish common-law rights in the AURI mark for “a narrow subset of highly specialized agricultural services within the state of Minnesota,” 41 TTABVUE 15, Opposer’s broadest prior rights on this record arise from its ’975 and ’051 Registrations.
Opposition No. 91292154 - 22 - effect of differences in the essential characteristics of the goods and differences in the marks.”)). Opposer argues that “[h]ere, the numerous instances of actual confusion, the identical marks, and related nature of the parties’ goods and services play dominant, dispositive roles.” 39 TTABVUE 19. The claimed “numerous instances of actual confusion” invoke the seventh DuPont factor, the “nature and extent of any actual confusion,” DuPont, 476 F.2d at 1361, which Opposer discusses at length. 39 TTABVUE 19-23. Opposer also addresses the key first two DuPont factors, 39 TTABVUE 23-29, the third DuPont factor, the “similarity or dissimilarity of established, likely-to-continue trade channels,” DuPont, 476 F.2d at 1361, 39 TTABVUE 29-30, and the fourth DuPont factor, the “conditions under which and buyers to whom sales are made, i. e. ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 476 F.2d at 1361, 39 TTABVUE 31.27 In its brief, Applicant addresses the key first two DuPont factors, 41 TTABVUE 20-28, as well as the third factor, id. at 28-33, and the seventh factor, id. at 33-41, and also argues that it acted in good faith in adopting the AURI mark. Id. at 41-42.28 Opposer must prove its likelihood-of-confusion claim by a preponderance of the evidence. DowntownDC, 2024 WL 4449409, at *1. 27 Opposer also argues that Applicant’s claimed good faith in adopting its AURI mark does not weigh in Applicant’s favor. 39 TTABVUE 31-32. We agree. Cielo e Terra, 2026 WL 2624328, at *4 n.11. 28 As noted above, the last argument is irrelevant to our analysis of the likelihood of confusion.
Opposition No. 91292154 - 23 - 1. Similarity or Dissimilarity of the Marks Under the first DuPont factor, “[w]e consider the marks in their entireties as to appearance, sound, connotation and commercial impression.” Sage Therapeutics, 2024 WL 1638376, at *5 (citing Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005)). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” Id. (quoting In re Inn at St. John’s, LLC, No. 87075988, 2018 WL 2734893, at *5 (TTAB 2018), aff’d per curiam, 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). “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.” Sage Therapeutics, 2024 WL 1638376, at *5 (quoting Coach Servs. Inc. v. Triumph Learning, LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012)). “The focus is on the recollection of the average purchaser, who normally ‘retains a general rather than a specific impression of marks.’” Id. (quoting In re i.am.symbolic, llc, No. 85916778, 2018 WL 3993582, at *4 (TTAB 2018) (citations omitted)). Applicant’s mark is AURI in standard characters. We display again below Opposer’s marks shown in the ’975 and ’051 Registrations:
Opposition No. 91292154 - 24 - Opposer argues that “[t]he dominant portion of the registered marks utilized by [Opposer] is the word ‘AURI’,” and that “comparison of that dominant part with [Applicant’s] Auri mark makes likelihood of confusion clear.” 39 TTABVUE 24 (citation omitted). Applicant responds that Opposer’s terse argument “completely disregards the substantial visual and conceptual differences, and differences in commercial impression, between Applicant’s standard character mark and Opposer’s highly stylized composite trademarks.” 41 TTABVUE 20. According to Applicant, the proper comparison of the marks is between Applicant’s applied-for AURI mark and Opposer’s composite Registered Marks . . . . While Opposer simply concludes that the term “AURI” forms the dominant portion of its Registered Marks, this is not an automatic legal determination. Rather, the dominant feature of a composite mark is evaluated on a case-by-case basis. Id. at 21 (citation omitted). Applicant further argues that while Opposer’s composite registered marks incorporate the acronym “AURI,” they are inextricably tied to
Opposition No. 91292154 - 25 - significant additional wording, intricate stylization, and prominent design elements. Specifically, both of Opposer's registered marks feature a prominent rectangular design that evokes an agrarian landscape containing curved ribbons of gold, white, green, and blue. Furthermore, the acronym is either coupled with the highly descriptive, stacked wording “Agricultural Utilization Research Institute,” or paired with the word “Connects:” alongside an elaborate geometric arrangement of gold lines and circles. Id. at 21-22. Applicant claims that “it is self-evident that the mark AURI AGRICULTURAL UTILIZATION RESEARCH INSTITUTE (& design) employs the term AURI as an acronym. The full name of Opposer appears directly beneath this term. Although the terms Agricultural Utilization Research Institute are descriptive and disclaimed, these terms cannot be ignored when evaluating similarity,” id. at 22 (citation omitted), and that “the combination of the highly descriptive wording with the AURI acronym only acts to educate consumers that the acronym is ‘substantially synonymous’ with the merely descriptive wording – further undermining the strength of Opposer’s marks.” Id. (citations omitted). Applicant concludes that “[w]hen properly analyzed, the respective marks cannot be viewed as ‘identical’ or even ‘nearly identical,’ as the Opposer may wish. Substantial differences between the marks are distinguishing, especially when taken in the context of the vast difference in respective goods and services. This factor is therefore neutral.” Id. at 23. In its reply brief, Opposer responds that Applicant makes the odd argument that for the stylized mark consisting of AURI AGRICULTURAL UTILIZATION
Opposition No. 91292154 - 26 - RESEARCH INSTITUTE, with “AGRICULTURAL UTILIZATION RESEARCH INSTITUTE” disclaimed . . . AURI cannot be the dominant portion. As is shown in the mark, AURI is in the largest font, and clearly [is] the most important element, and [the] only non-disclaimed word element. 44 TTABVUE 12. Applicant correctly argues that marks must be considered in their entireties, 41 TTABVUE 23, but “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.” Cielo e Terra, 2026 WL 2624328, at *22 (quoting In re Detroit Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985)). As discussed above, the parties disagree about the dominant portion of the composite marks shown in the ’975 and ’051 Registrations, so we will begin our analysis by addressing that issue. The mark shown in the ’975 Registration consists, from top to bottom, of a multi-colored design, the bolded and stylized letters auri, and the words “Agricultural Utilization Research Institute.” The mark shown in the ’051 Registration consists of a design above the words “auri Connects:,” with the lead word “auri” in darker letters and the word “Connects” followed by a colon in gold, and the mark contains what Opposer describes as “an arrangement of gold lines emanating from a center point and connecting with several gold circles.” “When a mark comprises both words and a design, the words are normally accorded greater weight because they are more likely to be impressed upon a
Opposition No. 91292154 - 27 - purchaser’s memory and would typically be used by purchasers to request the goods or services.” Iron Balls Int’l Ltd. v. Bull Creek Brewing, LLC, No. 92079099, 2024 WL 2844425, at *12 (TTAB 2024) (citing In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012)). That general principle applies here to both of Opposer’s registered marks. Although the design elements of the marks are colorful and eye-catching, they cannot be verbalized and consumers are most likely to recall and use the marks’ verbal elements. “The verbal portion of a word and design mark ‘likely will appear alone when used in text and will be spoken when requested by consumers.’” In re Aquitaine Wine USA, LLC, No. 86928469, 2018 WL 1620989, at *2 (TTAB 2018) (quoting Viterra, 671 F.3d at 1362 (internal quotation omitted)). Such use of the verbal elements in text is illustrated in various exhibits to the Schlecht Declaration. Schlecht Decl. Exs. PX3-PX9 (7 TTABVUE 18-33). The verbal portion of the mark shown in the ’975 Registration consists of the bolded and stylized letters auri, which abbreviate the words “Agricultural Utilization Research Institute.” Those words are descriptive of the services and, whether disclaimed in whole or in part, are entitled to less weight than “auri.”29 As between the letters and the words, we find that it is more likely that consumers will remember 29 As noted above, the scope of Opposer’s disclaimer is not clear, but even if the entire phrase “Agricultural Utilization Research Institute” has been disclaimed, “an acronym or initialism is not considered descriptive unless it has become so generally understood as representing descriptive words as to be accepted as substantially synonymous with those words.” Sawstop, LLC v. Felder KG, No. 91255905, 2025 WL 2400134, at *8 n.33 (TTAB 2025) (internal quotation and quotation marks omitted). In any event, any assertion by Applicant about the possible descriptiveness of AURI “is in essence an attack on the validity of Opposer’s registration. The Board cannot entertain such an attack absent a counterclaim or petition to cancel the registration.” Pierce-Arrow Soc’y v. Spintek Filtration, Inc., No. 91224343, 2019 WL 3834985, at *13 (TTAB 2019) (citation omitted).
Opposition No. 91292154 - 28 - and use the letters than the words. After all, the whole point of the use of an abbreviation such as “auri” is to make it unnecessary to remember the longer abbreviated phrase. See, e.g., Am. Mut. Ins. Co. v. R. H. Cosmetics Corp., No. 92010846, 1979 WL 24882, at *3, 8 (TTAB 1979) (finding that with respect to the petitioner’s mark AMICA, “the adoption and use of this acronym was occasioned by the need of a convenient term of reference to opposer’s predecessors,” including the American Mutual Insurance Company of America, and “to avoid a ‘mouthful’.”). We note in that regard that Mr. Johansen testified with respect to Applicant’s mark that he thought that the “short length” of AURI “would be easy for consumer recognition and recall,” Johansen Decl. ¶ 6 (38 TTABVUE 5-6), and Applicant argues in its brief that AURI was chosen “due to its short length which allowed for easy consumer recognition.” 41 TTABVUE 9-10. The verbal elements in the mark shown in the ’051 Registration are “auri” in dark lettering and “Connects:” in gold lettering. The grammatical structure of those elements focuses attention on the noun “auri,” which is the subject of the verb “Connects.” As between “auri” and “Connects,” we find that it is more likely that consumers will remember and use the word “auri” to identify the source of the services with which the mark is used. In the marks shown in the ’975 and ’051 Registrations, the word “auri” in stylized lowercase letters is “[d]isplayed in a large, bold typeface” and, to varying degrees, “comprises the largest literal portion of the mark in terms of size, position, and emphasis. It is also the first term in the mark, further establishing its prominence.”
Opposition No. 91292154 - 29 - Aquitaine Wine, 2018 WL 1620989, at *2 (quoting Palm Bay, 396 F.3d at 1372-73). We find that the word “auri” is the dominant portion of the marks shown in the ’975 and ’051 Registrations. We turn now to the required comparison of the marks in their entireties, in which we will give greater weight to the bolded and stylized word auri in Opposer’s marks than to the other elements of the marks. With respect to appearance, Applicant’s AURI mark is a standard-character mark and as such “could be used in any typeface, color, or size, including the same stylization actually used or intended to be used by the other party, or one that minimizes the differences or emphasizes the similarities between the marks.” Cielo e Terra, 2026 WL 2624328, at *23 (quoting Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., No. 91194148, 2015 WL 5316485, at *8 (TTAB 2015) (internal citation omitted)). Accordingly, we must assume that Applicant’s standard-character mark AURI could appear in the same font style, colors, and lowercase letters in which the word AURI appears in Opposer’s registered marks, as shown again below: This hypothesized display “minimizes the differences or emphasizes the similarities between the marks” when they are considered in their entireties. Id. We must also visualize other manners in which Applicant’s standard-character mark might appear, and illustrations of the mark as it is actually used may assist us
Opposition No. 91292154 - 30 - in doing so. Id. (citing Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1353 (Fed. Cir. 2011)). Applicant’s specimen of use, displayed in pertinent part below, displays Applicant’s standard-character mark in lettering that is similar in appearance to the lettering in the dominant bolded and stylized word auri in Opposer’s marks: 30 This actual depiction of Applicant’s standard-character mark also “minimizes the differences or emphasizes the similarities between the marks” when they are considered in their entireties. Id. We find that the marks are similar in appearance from the standpoint of a consumer with a general rather than specific recollection of Opposer’s marks, both of which are dominated by the acronym auri, who separately sees Applicant’s AURI mark. 30 October 24, 2022 Application at 7.
Opposition No. 91292154 - 31 - With respect to sound, the literal portion of the mark shown in the ’975 Registration, “auri Agricultural Utilization Research Institute,” is a proverbial “mouthful” to verbalize, and “the Board has acknowledged the ‘penchant of consumers to shorten marks.”’ Id. at *25 (quoting Iron Balls, 2024 WL 2844425, at *25 (internal citation omitted)). Given that Opposer itself has provided consumers with an acronym for its full trade name in the mark shown in the ’975 Registration, “we find that it is very likely, indeed probably inevitable,” id., that the mark will be verbalized as “auri” alone. In that event, the marks would be identical in sound from the standpoint of a consumer with a general rather than specific recollection of the sound of Opposer’s mark who separately hears Applicant’s AURI mark verbalized. But even in the very unlikely event that the entire “mouthful” of words in Opposer’s mark is verbalized, the marks would sound similar because the word “auri” is the first thing heard when Opposer’s mark is verbalized and the only thing heard when Applicant’s mark is verbalized. The literal portion of the mark shown in the ’051 Registration is considerably shorter, so it may be less likely that consumers will verbalize the mark as “auri” alone, but even if the entire literal portion is verbalized as “auri Connects,” the marks would sound quite similar because the word “auri” is the first thing heard when Opposer’s mark is verbalized and the only thing heard when Applicant’s mark is verbalized. Finally, with respect to meaning, the word auri in the mark shown in the ’975 Registration is an abbreviation meaning “Agricultural Utilization Research
Opposition No. 91292154 - 32 - Institute,” while the word auri in the mark shown in the ’051 Registration, and the word AURI that comprises Applicant’s mark, have no apparent meanings on the face of the marks. As Mr. Johansen put it, “AURI was chosen arbitrarily and has no connection to mushrooms, supplements, health, or any other attribute of [Applicant’s] business.” Johansen Decl. ¶ 6 (38 TTABVUE 7). A consumer with a general rather than specific recollection of Opposer’s marks, which are dominated by the word auri, who separately encounters Applicant’s mark, which is AURI, could readily understand Applicant’s mark to be the acronym auri, and the word auri, in Opposer’s marks. We find that the marks are similar in connotation and commercial impression. The marks are similar in appearance, sound, and connotation and commercial impression when considered in their entireties, and the first DuPont factor supports a conclusion that confusion is likely with respect to both of Opposer’s marks. Naterra, Inc. v. Bensalem, 92 F.4th 1113, 1119 (Fed. Cir. 2024). 2. Similarity or Dissimilarity of the Goods and Services, Channels of Trade, and Classes of Consumers a. Second DuPont Factor The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration . . . .” Detroit Athletic Co., 903 F.3d at 1306. “This factor considers whether ‘the consuming public may perceive [the goods or services] as related enough to cause confusion about the source or origin of the goods or services.’” In re St. Helena Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002)). “In analyzing the [goods and] services, the Board considers
Opposition No. 91292154 - 33 - ‘[t]he similarity or dissimilarity and nature of the [goods and] services as described in an application or registration.’” In re OSF Healthcare Sys., No. 88706809, 2023 WL 6140427, at *4 (TTAB 2023) (quoting In re Embiid, No. 88202890, 2021 WL 2285576, at *10 (TTAB 2021)). The goods and services “‘need not be identical or even competitive to find a likelihood of confusion.’” Id. (quoting In re Country Oven, Inc., No. 87354443, 2019 WL 6170483, at *2 (TTAB 2019)). “They need only be ‘related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that [they] emanate from the same source.” Id. (quoting Country Oven, 2019 WL 6170483, at *2 (quoting Coach Servs., 668 F.3d at 1369 (internal quotation omitted)). The relatedness of goods and services may be established based on (1) the language of the involved identifications of goods and services, which may show, on the face of the identifications, that the goods and services are literally or legally identical, or are otherwise intrinsically related, and (2) other evidence, including testimony and third-party uses or registrations, which may show that the identified goods and services are commonly offered by the same entity under the same mark, or are otherwise related. See, e.g., id. at *4. As discussed below, Opposer relies on the latter type of proof. The goods identified in the opposed application are “Nutritional supplements in the form of gummies” in Class 5. The services identified in the ’975 Registration are
Opposition No. 91292154 - 34 - “Research and development in the field of agriculturally- based innovations; Scientific and technological services, namely, scientific and technical assistance in the nature of integrated scientific research, product development and product testing for agricultural coproducts, biobased products, renewable energy products and food; Scientific research consulting in the field of biobased products, renewable energy, coproduct utilization and food; Technology consultation and research in the field of biobased products, renewable energy, coproduct utilization and food” in Class 42.31 The services identified in the ’051 Registration are “Arranging and conducting of educational seminars, online and in-person educational forums, panel discussions, professional network groups, conferences, webinars, classes, and programs with thought leaders in the field of agriculturally-based innovations and utilization of agricultural research” in Class 41. The involved identifications all “must be construed most favorably to the opposing prior user.” Tuxedo Monopoly, 648 F.2d at 1337 (citing CTS Corp. v. Cronstoms Mfg. Inc., 515 F.2d 780, 782 (CCPA 1975) (“consider[ing] it proper in this case to construe [the applicant’s] description of its goods in the manner most favorable to [the opposer]”)). Opposer argues that “[t]he goods in the Application are highly related to the services covered by [Opposer’s] registrations as evidenced by the fact that many marks exist on the register which recite goods and services that overlap between [Applicant’s] and [Opposer’s] application and registrations.” 39 TTABVUE 25. 31 “Opposer need not prove, and we need not find, similarity as to each . . . service listed in” the ’975 and ’051 Registrations. Heil Co., 2024 WL 4925901, at *33. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336-37 (CCPA 1981).
Opposition No. 91292154 - 35 - Opposer points to 11 specific third-party registrations in support of this argument. Id. at 25-28.32 Opposer further argues that it “services clients in the mushroom dietary supplement area” and has identified “seven projects related to mushrooms, and nine projects for dietary supplements,” and that “[a] dietary supplement and nutrition supplement, as sold by [Applicant] are considered equivalent by the Food and Drug Administration.” Id. at 28. Finally, Opposer cites the Board’s non-precedential decision in In re Kyäni, Inc., No. 87117834, 2018 WL 3105233 (TTAB May 21, 2018), for the proposition that the Board has previously found that “that an application which identified ‘dietary supplements’ and ‘nutritional supplements’ was sufficiently related to educational related services such that the relatedness of the goods and services weighed in favor of a likelihood of confusion.” 39 TTABVUE 28. Applicant responds that “Opposer failed to establish any connection between its agricultural research, consulting, and educational seminar services and Applicant’s nutritional supplements - one of the most critical factors in a Section 2(d) analysis.” 41 TTABVUE 23 (citation omitted). According to Applicant, Opposer “attempts to manufacture a connection between the respective goods and services through unsupported and vague references to a handful of past food consultation projects that 32 Opposer also cites what it describes as “a number of third-party references which recite services included in, or similar to, both the goods listed in [Applicant’s] Auri application and services listed in [Opposer’s] registrations.” 39 TTABVUE 28.Opposer does not point to any such specific “references” and it appears that this discussion is not directed to any third-party uses, but is instead simply another way of describing the third-party registrations.
Opposition No. 91292154 - 36 - happen to involve mushrooms (a mere ingredient in Applicant’s products) and a faulty list of third-party registrations that claim both supplements and information services,” and “Opposer’s services are so distinct and far afield from Applicant’s supplement products there is not even a tenuous connection between them that could lead consumers to believe that the respective goods and services originate from a single source.” Id. at 24. Applicant argues that Opposer’s argument that “it “services clients in the mushroom dietary supplement area,” id. (citing 39 TTABVUE 28), is a “sweeping claim [that] is unsupported by the record,” id., and that Opposer “overrel[ies] on third-party registrations that identify information services and nutritional supplements,” id. at 25, offering a detailed critique of Opposer’s third-party registration evidence. Id. at 25-27. Finally, Applicant distinguishes the Board’s non- precedential decision in Kyäni, arguing that the Board’s finding of relatedness, including its analysis of third-party registration evidence, “was specific to the record of that case.” Id. at 27. Applicant concludes that “this factor weighs heavily in Applicant’s favor, in view of Opposer’s lack of evidence to establish any connection between the parties respective goods and services. In fact, this factor is so supportive of Applicant’s position that it can be dispositive of likelihood of confusion.” Id. at 28 (citation omitted). In its reply brief, Opposer takes issue with Applicant’s critique of Opposer’s third- party registration evidence, 44 TTABVUE 12-13, arguing that “9 of the 11 marks are
Opposition No. 91292154 - 37 - supported by evidence of use in commerce in the United States for overlapping goods as those at issue in this proceeding.” Id. at 12.33 Opposer concludes that “it is undisputed the nutritional supplements typically emanate from the same source as consulting and educational services” and “[t]here is no support in case law or in the briefing that only third-party registrations related to agricultural services are relevant.” Id. at 13 (emphasis in bold here in italics in Opposer’s reply brief). We begin our analysis with Opposer’s third-party registration evidence. “As a general proposition, third-party registrations that cover goods and services from both [a pleaded registration] and an Applicant’s application are relevant to show that the goods and services are of a type that may emanate from a single source under one mark.” Country Oven, 2019 WL 6170483, at *5 (citations omitted). In considering third-party registrations for this purpose, “[j]ust as we must consider the full scope of the goods and services as set forth in the application and registration[s] under consideration, we must consider the full scope of the goods and services described in a third-party registration.” Id. Opposer made of record 11 third-party registrations. We summarize their coverage below: 33 We understand Opposer’s reference to “evidence of use in commerce in the United States” to mean that nine registrations issued on the basis of such use, not that there is separate record evidence showing the actual use of the registered marks.
Opposition No. 91292154 - 38 - • Registration No. 5263464 covers, inter alia, “nutritional supplements,”34 and “Online journals, namely, blogs, featuring advice on food, nutrition, and health” in Class 41, 15 TTABVUE 13-14; • Registration No. 7756810 covers, inter alia, “dietary and nutritional supplements” and “education and instruction services, namely, providing classes, seminars, workshops in the field of dietary and nutritional preparations; education, namely, instruction in the life sciences” in Class 41, id. at 16-17;35 • Registration No. 7804129 covers, inter alia, “nutritional supplements” and “Providing a website featuring non-downloadable articles in the field of health, wellness, fitness, weight loss, dietary supplements, and health and nutritional products; on-line journals, namely, blogs featuring health, wellness, fitness, weight loss, dietary supplements, and health and nutritional products” in Class 41, id. at 21-22; • Registration No. 5617928 covers “nutritional supplements,” and “Education services, namely, providing tutorial consultation sessions in the field of neuropathy treatment protocols; Educational services, namely, conducting classes, seminars and workshops in the field of neuropathy treatment protocols” in Class 41, id. at 25; • Registration No. 5871286 covers “Vitamins and nutritional supplements” and “Entertainment services, namely, an ongoing radio show in the field of health and wellness; Entertainment services, namely, providing podcasts in the field of health and wellness” in Class 41, id. at 29-30; • Registration No. 3967892 covers “nutritional supplements” and “Providing health information, namely, information in the field of healthcare and nutritional supplements, dietary supplements, vitamin and mineral supplements” in Class 44, id. at 33-34;36 • Registration No. 7217509 covers “nutritional supplements” and “On-line journals, namely, blogs featuring health and wellness, women’s health, nutrition and nutritional supplements, detoxification and anti-aging; Entertainment services, namely, providing podcasts in the field of health 34 The full scope of the goods identified as “nutritional supplements” in this registration and in the others discussed below covers the “Nutritional supplements in the form of gummies” identified in the application. 35 This registration issued under Section 66A of the Trademark Act, 15 U.S.C. § 1141f(a), which does not require a showing of use in commerce. 36 This registration was originally owned by the current listed owner of Registration No. 2816008 below and was assigned to its current owner in 2014. 15 TTABVUE 35-36.
Opposition No. 91292154 - 39 - and wellness, women’s health, nutrition and nutritional supplements, detoxification and anti-aging; Educational services, namely, workshops and seminars in the field of health and wellness, women’s health, nutrition and nutritional supplements, detoxification and anti-aging” in Class 41, id. at 40-41; • Registration No. 7453815 covers “nutritional supplements” and “educational services, namely, providing online classes, seminars, and workshops in the field of growing and utilizing home plants for health and lifestyle benefits” in Class 41, id. at 44-45; • Registration No. 7102647 covers, inter alia, “Animal feed additives for use as nutritional supplements intended for veterinary use,” “nutritional additives for use as nutritional supplements intended for animal feed for medical use,” “nutritional supplements for foodstuffs for livestock,” and “nutritional supplements for veterinary use,” and “virtual or presential training services in the field of nutrition; arranging and conducting educational congresses, colloquiums, conferences, seminars, and workshops in the field of science and technology, more specifically industrial production, biotechnology and pharmaceutical production, quality system development and implementation, biotechnology, microbiology, biologic therapeutic products, alternative diagnostics and detection methods,” and “educational services, namely, conducting courses of instruction in the field of nutrition,” in Class 41, and “technical consulting relating to research services concerning food and dietary supplements” in Class 42, id. at 47- 49;37 • Registration No. 2816008 covers “vitamin and mineral supplements for humans,” and “food supplements for non-medical purposes, consisting primarily of vitamins, amino acids and trace elements,” the full scope of which covers the “Nutritional supplements in the form of gummies” identified in the application, and “Educational services, namely conducting seminars, [and] courses in the fields of health care, health precautions, and nutrition” in Class 41, and “Scientific research” in Class 42, id. at 53-54; and • Registration No. 2990375 covers “meal replacement powders and meal replacement bars” in Class 5, “Educational services, namely, seminars, directed to physicians regarding the development of nutritional programs in their practices including education on the topics of the use of nutritional protocols, nutritional supplements, and nutritional assessment tools” in Class 41, and “Product research and development in the nutritional 37 This registration issued under Section 44(e) of the Trademark Act, 15 U.S.C. § 1126(e), which also does not require a showing of use in commerce.
Opposition No. 91292154 - 40 - products industry” and “research and development in the field of genomics and proteomics” in Class 42. Id. at 57-58. There are multiple problems with these registrations as proof of the relatedness of the services identified in the ’975 and ’051 Registrations to the goods identified in the opposed application. First, as noted above, Registration Nos. 7756810 and 7102647 issued under Sections 44(e) and 66A of the Trademark Act without a showing of use of the marks in commerce, and have not yet been maintained based on such use. “Because these registrations are not based on use in commerce, they have no probative value in showing the relatedness of the [goods] and services.” In re 1st USA Realty Pros., Inc., No. 78553715, 2007 WL 2315610, at *2 (TTAB 2007). Second, the full scope of the goods identified in Registration No. 2990375, “meal replacement powders and meal replacement bars,” does not encompass the “Nutritional supplements in the form of gummies” identified in the application (or vice versa). By definition, “nutritional supplements in the form of gummies” supplement rather than replace meals, and are not sold as “powders” or “bars.” Because Registration No. 2990375 does not cover the goods identified in the opposed application or a legal equivalent, it is not probative of the relatedness of those goods to the services identified in the ’975 and ’051 Registrations. Third, the educational services identified in the ’051 Registration, “Arranging and conducting of educational seminars, online and in-person educational forums, panel discussions, professional network groups, conferences, webinars, classes, and programs with thought leaders in the field of agriculturally-based innovations and utilization of agricultural research,” are restricted to a specific field. None of the five
Opposition No. 91292154 - 41 - use-based registrations that cover both nutritional supplements and some type of educational services cover educational services in “the field of agriculturally-based innovations and utilization of agricultural research,” or in a legally equivalent or intrinsically related field.38 The use-based third-party registrations thus do not show that nutritional supplements in the form of gummies and the educational services identified in the ’051 Registration are related. Finally, only one use-based third-party registration, Registration No. 2816008, which covers “Scientific research,” covers services in Class 42. The full scope of these services encompasses the “Research and development in the field of agriculturally- based innovations,” “Scientific and technological services, namely, scientific and technical assistance in the nature of integrated scientific research, product development and product testing for agricultural coproducts, biobased products, renewable energy products and food,” and “Technology consultation and research in the field of biobased products, renewable energy, coproduct utilization and food” services identified in the ’975 Registration. Although a single use-based third-party registration may be relevant on the issue of the relatedness of the goods and services, its probative value is obviously very limited because “the existence of [third-party] registrations is not evidence of what happens in the market place or that customers 38 Registration No. 5617928 covers “the field of neuropathy treatment protocols;” Registration No. 7217509 covers “the field of health and wellness, women’s health, nutrition and nutritional supplements, detoxification and anti-aging;” Registration No. 7453815 covers “the field of growing and utilizing home plants for health and lifestyle benefits;” Registration No. 2816008 covers “the fields of health care, health precautions, and nutrition;” and Registration No. 2990375 covers educational services “directed to physicians regarding the development of nutritional programs in their practices including education on the topics of the use of nutritional protocols, nutritional supplements, and nutritional assessment tools.”
Opposition No. 91292154 - 42 - are familiar with them,” AMF Inc. v. Am. Leisure Prods. Inc., 474 F.2d 1403, 1406 (CCPA 1973), and we have no information regarding the extent and exposure of the registrant’s use of its mark in connection with the identified goods and services. “[W]e find that this one third-party registration is not sufficient to establish that” nutritional supplements in the form of gummies and the research services identified in the ’975 Registration are related, “even when considered with the other evidence.” In re Princeton Techtonics, Inc., No. 77436425, 2010 WL 2604976, at *3 (TTAB 2010). Cf. Country Oven, 2019 WL 6170483, at *5 (finding that third-party registrations “covering both bakery services and bakery goods owned by 14 different entities” were sufficient to establish a reasonable predicate for the examining attorney’s position that the goods and services were related). We turn next to Mr. Schlecht’s testimony regarding relatedness. He testified that Opposer “has provided services to several clients in the mushroom area,” Schlecht Decl. ¶ 26 (7 TTABVUE 7), and provided what he called a “description of selected projects,” Schlecht Decl. ¶ 26 (7 TTABVUE 7), in which Opposer “[a]ssisted in development” of mushroom jerky, a pickled mushroom product, mushroom pates, an inline sterilization process, and a CBD gummy product. Schlecht Decl. ¶ 26 (7 TTABVUE 7).39 He also testified that Opposer “has also helped several clients in the dietary supplement area.” Schlecht Decl. ¶ 27 (7 TTABVUE 7). He again provided what he 39 Mr. Schlecht also testified that Opposer was involved in “[p]roduction of a mushroom based lip balm, lotion and future bio-based soap.” Schlecht Decl. ¶ 26 (7 TTABVUE 7).
Opposition No. 91292154 - 43 - called a “description of several such projects,” Schlecht Decl. ¶ 27 (7 TTABVUE 8), in which Opposer “[a]ssisted in development” of a lactation cookie product, a heart health bar, lactation bars, a CBD product, a women’s health snack bar, a nutrition bar, an immunity boosting syrup, an elderberry syrup, and a hemp-derived CBD for infusing gummies. Schlecht Decl. ¶ 27 (7 TTABVUE 8). Mr. Schlecht was cross-examined about the mushroom-related projects. Schlecht Cross. Tr. 17:1-19:13 (23 TTABVUE 23-25). He testified that he did “not know the date of completion for the projects” because “I have a team that works on these” and “I don’t get heavily involved in a lot of the project activity.” Schlecht Cross. Tr. 17:11- 13 (23 TTABVUE 23). With respect to the size of the contracts and the scope of Opposer’s work, he testified that he knew “just what is listed here in terms of how we assisted,” Schlecht Cross. Tr. 18:4-8 (23 TTABVUE 24), and that he did “not have the time -- time frame of when these were completed or the overall, right, size of the projects.” He testified that his “best guess would be that they’ve occurred within the last, you know, five to ten years when the team looked at selected projects, and that was a sampling,” but he did not know for certain. Schlecht Cross. Tr. 18:9-20 (23 TTABVUE 24). When asked by Applicant’s counsel if there was “anything you can tell me about any one of these projects, besides what’s in the declaration,” Mr. Schlecht responded as follows: what I can share is that we work with clients like this, where they have ideas only that right? There’s a range of services that we can provide. They provide an application, and then we see if we can assist overall, whether it be product development, nutritional assistance, right, just
Opposition No. 91292154 - 44 - processing or packaging. Each one is different, right? They’re highly specific in terms of what the objectives are. Schlecht Cross. Tr. 18:21-19:6 (23 TTABVUE 24-25). Mr. Schlecht concluded that “I -- I do not have any additional details that -- that I am able to provide, right, on these, other than these are projects that we’re utilizing mushroom as a feedstock that we worked on.” Schlecht Cross. Tr. 19:7-13 (23 TTABVUE 25). Mr. Schlecht’s vague testimony about Opposer’s involvement with these mushroom and supplement development projects does not show that “nutritional supplements in the form of gummies” are related to the services identified in the ’975 and ’051 Registrations because his testimony does not show that the involved goods and services are intrinsically related, or commonly (or indeed ever) “emanate from the same source.” Heil Co., 2024 WL 4925901, at *33 (quoting Coach Servs., 668 F.3d at 1369). Opposer, unlike Applicant, does not sell products, Voegele Cross Tr. 19:13- 14 (21 TTABVUE 21),40 but was instead the source of whatever services it provided to its clients in these projects, not the source of whatever products its clients sold under their own marks after these projects ended, including what Mr. Schlecht described as “a CBD gummy product” and “a hemp-derived CBD for infusing gummies.” Schlecht Decl. ¶¶ 26-27 (7 TTABVUE 7-8). Mr. Schlecht’s testimony does not show that consumers of the CBD-related gummy products, or any of the other 40 In discovery, Opposer admitted that it does not use its marks in connection with consumer goods, 25 TTABVUE 20 (Opposer’s Resp. to Req. for Adm. No. 1), and that it “has no active license agreements with a third party to use Opposer’s Marks in connection with the third parties’ goods or services.” 25 TTABVUE 21 (Opposer’s Resp. to Req. for Adm. No. 7).
Opposition No. 91292154 - 45 - products, were ever exposed to Opposer’s marks or even had any idea that Opposer was involved somehow in their development. Finally, we address Opposer’s reliance on the Board’s non-precedential Kyäni decision. We are not bound by non-precedential decisions, Cielo e Terra, 2026 WL 2624328, at *13 (citation omitted), but we may consider them for whatever persuasive value they may have. The Board has previously noted the “limited utility” of reliance on even binding precedential decisions “in lieu of supporting evidence” in showing relatedness, Embiid, 2021 WL 2285576, at *12, and Kyäni is distinguishable in any event. In that case, the goods and services at issue were the applicant’s “dietary supplements; nutritional supplements; liquid nutritional supplement,” and the cited registrant’s “educational, instructional and teaching materials, technical bulletins and manuals, and newsletters, all in the field of health and nutrition” in Class 16 and “providing a website incorporating a searchable computer database of web-based health-related information, namely, articles, instructional bulletins and manuals, technical bulletins and manuals, links to related web sites, newsletters and magazines in field of health, natural health lifestyle, nutrition and health-related topics” in Class 44. Kyäni, 2018 WL 3105233, at *1. The Board found that the examining attorney had “established that third parties offer, under the same marks, nutritional or dietary supplements on the one hand and health-related educational materials and websites on the other,” id. at *6, based on record evidence in the form of the websites of sellers of nutritional or dietary supplements, and 12 third-party registrations covering the involved goods and services. Id. at *6-7. The Board found
Opposition No. 91292154 - 46 - that “the record in this case indicates that the goods and services identified in the cited registrations and the goods identified in the involved application often have common sources of origin, and are offered under the same marks.” Id. at *7. Here, as discussed above, there is only one relevant third-party registration with respect to the services identified in the ’975 Registration and none with respect to the services in the ’051 Registration, and the only third-party websites in the record are those of resellers of Applicant’s goods, none of which references Opposer’s services. Kyäni thus does not aid Opposer. We find that Opposer’s services and Applicant’s goods are unrelated, and the second DuPont factor strongly supports a conclusion that confusion is not likely with respect to the marks shown in the ’975 and ’051 Registrations. b. Third DuPont Factor The third DuPont factor “considers ‘[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” Detroit Athletic Co., 903 F.3d at 1308 (quoting DuPont, 476 F.2d at 1361). As under the second factor, we must base our analysis under the third factor on the goods identified in the application and the services identified in the ’975 and ’051 Registrations. Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014). Opposer argues that the parties’ consumers and channels of trade overlap. 39 TTABVUE 29. Opposer relies on its claimed showing under the second factor that “the services marked by AURI are indeed highly related to [Applicant’s] gummy goods” and that Opposer “does indeed provide services in the gummy and nutritional supplement industry.” Id. at 30. According to Opposer, “as a matter of law, because
Opposition No. 91292154 - 47 - the parties’ goods and services are highly related, it necessarily and logically follows that the trade channels and classes of consumers are identical as well,” id. (citation omitted), and that since the Application contains no limitation on trade channels or targeted consumers, the Board must presume as a matter of law that the goods identified in the Application will be offered and promoted in all normal channels of trade for such goods—which because they are highly related to AURI’s services would overlap with channels of trade where AURI’s own services are offered and marketed—and that such services will be offered to all normal classes of consumers—including AURI’s own consumers. Id. (citations omitted). Opposer does not discuss what the record evidence, including its own website and Applicant’s website, shows regarding the channels of trade and classes of consumers for Opposer’s services and Applicant’s goods. Applicant responds that “Opposer has failed to present evidence to establish any overlap in trade channels, consumers, or conditions of sale.” 41 TTABVUE 28. Applicant argues that it “operates strictly in the direct-to-consumer (DTC) retail market,” while Opposer “operates an exclusively business-to-business (B2B) model.” Id. According to Applicant, “[t]here is absolutely no evidence in the record to suggest that Applicant’s consumer retail dietary supplements and Opposer’s highly specialized agricultural research and educational services share any ‘normal and usual’ trade channels.” Id. at 30. Applicant argues that Opposer has admitted that “its consulting services, fee-for-service projects and educational seminars are directly marketed business-to-business (B2B) to a very specific subset of industry partners, various businesses, farmers, entrepreneurs, distributors, and agricultural
Opposition No. 91292154 - 48 - producers,” id. (record citations omitted), while Applicant’s nutritional supplements in the form of gummies are sold directly to consumers. Id. Applicant further argues, invoking the fourth DuPont factor, the “conditions under which and buyers to whom sales are made, i. e. ‘impulse’ vs. careful, sophisticated purchasing,” DuPont, 476 F.2d at 1361, that “[b]eyond the parties’ unrelated distribution channels, there is a stark and vital contrast between the Opposer’s professional business-to-business consumers and Applicant’s ordinary retail consumers.” Id. at 31. Applicant concludes that “[b]ecause Opposer failed to submit any probative evidence of inherent overlap between the parties’ distinct industries, its assertion that trade channels and consumers overlap and are therefore related outright fails as a matter of law.” Id. at 33 (citation omitted). We begin by noting that Opposer’s reliance on legal presumptions rather than record evidence is misplaced. We have found above that Applicant’s goods and Opposer’s services are unrelated, and the premise for Opposer’s argument that “as a matter of law, because the parties’ goods and services are highly related, it necessarily and logically follows that the trade channels and classes of consumers are identical as well,” 39 TTABVUE 30, does not exist.41 It is true that neither Applicant’s 41 Opposer cites Hewlett-Packard, in which the Federal Circuit found that the parties’ services were “closely related,” 281 F.3d at 1268, and held that “absent restrictions in the application and registration, goods and services are presumed to travel in the same channels of trade to the same class of purchasers.” Id. at 1267-1268 (citing CBS Inc. v. Morrow, 708 F.2d 1579, 1581 (Fed. Cir. 1983)). As discussed above, we have not found that the parties’ goods and services are related at all, much less that they are “closely related,” and the Federal Circuit has subsequently clarified that goods or services must be literally or legally identical before we can apply the presumption that their channels of trade and classes of consumers are also identical. Viterra, 671 F.3d at 1362.
Opposition No. 91292154 - 49 - identification of goods nor Opposer’s identifications of services contain any limitations regarding channels of trade or classes of consumers, so we must presume that those goods and services travel “in all normal and usual channels of trade,” Iron Balls, 2024 WL 2844425, at *23 (citation omitted), but we must identify those channels of trade through record evidence. Inter IKEA Sys. B.V. v. Akea, LLC, No. 91196527, 2014 WL 1827031, at *10 (TTAB 2014) (“[W]hen the dispute involves the comparison of different goods or services, this principle does not help the party asserting a likelihood of confusion unless there is further evidence that would permit a comparison of the normal trade channels for the parties’ respective goods or services.”) (emphasis in bold here in italics in the original). The record shows that Applicant’s nutritional supplements in the form of gummies are sold through Applicant’s website, and third-party websites and social media pages. Johansen Decl. ¶¶ 9, 17; Exs. EJV12, EJV18-EJV19 (38 TTABVUE 7, 9, 13- 65, 76-125).42 Opposer did not introduce any evidence regarding additional channels of trade for nutritional supplements in the form of gummies except to the extent that it made of record Applicant’s admissions in discovery that it “does not currently utilize a full array of potential trade channels for the goods listed in” the opposed application, 11 TTABVUE 26 (Applicant’s Resp. to Req. for Admission No. 14), and that “there is a hypothetical potential of Applicant and Opposer using the same broad channels to advertise their respective products and services, e.g., the Internet.” Id. at 42 Mr. Johansen testified that Applicant’s products “are sold direct to consumers through ordinary retail channels, primarily utilizing e-commerce platforms,” Johansen Decl. ¶ 14 (27 TTABVUE 7), but he did not identify any other “ordinary retail channels.”
Opposition No. 91292154 - 50 - 27 (Applicant’s Resp. to Req. for Admission No. 17).43 “[T]here is no evidence in the record, except applicant’s description of how it sells its nutritional . . . supplements, as to the ordinary and usual channels of trade for nutritional . . . supplements.” Inter IKEA, 2014 WL 1827031, at *10. The record shows that the services identified in the ’975 and ’051 Registrations are provided through Opposer’s website and social media pages, in webinars, online seminar series, and podcasts directed to producers of food products, and in direct contractual relationships between Opposer and its project clients. Schlecht Decl. Exs. PX1-PX10 (7 TTABVUE 11-36). In discovery, Opposer stated that its “services are used by agricultural producers, entrepreneurs, and distributors, and those products are in turn utilized by all classes of users that purchase agricultural goods.” 25 TTABVUE 13 (Opposer’s Resp. to Interrogatory No. 17). There is no evidence in the record that Opposer’s services are rendered through any of the actual current and potential channels of trade in which nutritional supplements in the form of gummies are sold to consumers. Opposer “is asking us to assume, rather than require [O]pposer to prove, that nutritional . . . supplements move in the same channels of trade and are sold to the same classes of consumers as” Opposer’s services. Inter IKEA, 2014 WL 1827031, at *10. “That is not something we can or will do, because it would not be faithful to the underlying legal principle.” Id. 43 With respect to this admission, “the mere fact that Applicant and Opposer have their own Internet websites advertising or offering their goods is not a sufficient basis to find overlapping trade channels.” Shenzhen IVPS Tech., 2022 WL 16646840, at *24. See also Inter IKEA, 2014 WL 1827031, at *10.
Opposition No. 91292154 - 51 - The record also does not show the similarity of the consumers of nutritional supplements in the form of gummies and the consumers of the services identified in the ’975 and ’051 Registrations. Nutritional supplements in the form of gummies are sold to individual consumers, while the services identified in the ’975 and ’051 Registrations are rendered to what Opposer’s website describes variously as “[l]eading agricultural institutions,” 7 TTABVUE 16, “businesses, farmers and entrepreneurs,” id. at 19, “[a]gricultural processors,” id. at 21, and “[f]ood and beverage entrepreneurs,” id. at 33, among other institutional clients.44 Opposer’s website states that “[b]usinesses have access to AURI’s equipment and technical experts in engineering, business development, biobased and coproducts science, as well as analytical chemistry, to develop new products and processes,” and that the “ability to access specialized equipment, along with both technical and business expertise, is a valuable service to commercializing new bioindustrial products.” Id. at 19. Opposer’s website also describes its “AURI Connects Program, which convenes events to actively engage industry representatives, businesses, commodity groups and academics across a range of relevant innovation topics,” and whose “goal is to improve business networks and competitiveness through ongoing, educational, purposeful connection of clients, resources and partners along the value chain.” Id. at 20. The listed sponsors of one of Opposer’s events are all governments and business. Id. at 35. 44 All but one of the clients for Opposer’s listed mushroom-, gummy-, and supplement-related projects was a corporate entity. Schlecht Decl. ¶¶ 26-27 (7 TTABVUE 7-8).
Opposition No. 91292154 - 52 - There is no record evidence that the classes of consumers for Opposer’s services and Applicant’s goods overlap in any meaningful way, and the DuPont factors regarding channels of trade and classes of consumers strongly support a conclusion that confusion is not likely with respect to the marks shown in the ’975 and ’051 Registrations. 3. The Fourth DuPont Factor As noted above, the fourth DuPont factor considers “the conditions under which and buyers to whom sales are made, i. e. ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 476 F.2d at 1361. Opposer argues that [t]he demographics of consumers for [Opposer’s] services makes it inevitable that [Opposer’s] consumers will range from the least to the most sophisticated. Similarly, Applicant concedes it does not place restrictions—nor does it intend to place any restrictions—on the class of consumers to whom it markets goods under [its] Auri Mark. . . . Given these admissions, and the fact that the Application contains no limitations on the consumer base, the Application must therefore cover both sophisticated and wholly unsophisticated purchasers. 39 TTABVUE 31 (citations omitted). According to Applicant, “Opposer’s specialized consulting services are marketed and provided to highly sophisticated consumers who exercise significant care and attention before making a professional purchasing decision for individualized services,” 41 TTABVUE 32 (record citation omitted), while purchasers of nutritional supplements in the form of gummies are “ordinary retail consumers,” id. at 31, and its “consumers are impulse oriented and are looking for products to improve their mental clarity.” 42 TTABVUE 32.
Opposition No. 91292154 - 53 - In its reply brief, Opposer argues that it “conducts seminars, podcasts, and other public outreach” and “provides support to many individuals, entrepreneurs, and businesses,” and that “[t]here is no evidence in the record to take a restrictive view of the types of customers for AURI’s services, and indeed no such limitations exist in the registrations of record in this case.” 44 TTABVUE 14 (citations omitted). We must base our analysis of the sophistication of the purchasers of the parties’ respective goods and services on the “least sophisticated consumer in the class.” Made in Nature, 2022 WL 2188890, at *27 (quoting Stone Lion, 746 F.3d at 1325 (internal quotation omitted)). With respect to consumers of the services identified in the ’975 and ’051 Registrations, Mr. Schlecht testified about Opposer’s “partnership with farmers, businesses and entrepreneurs,” Schlecht Decl. ¶ 10 (7 TTABVUE 3), and “our association with high quality partners making high quality food products,” Schlecht Decl. ¶ 15 (7 TTABVUE 4), and he identified “prospective industry partners” for whom Opposer provides “service offerings for bioindustrial capabilities,” “service offerings for food producers, including meat and food laboratories, food product evaluation, and analytical chemistry,” and an “online food toolkit to provide food and beverage entrepreneurs with vital resources, such as starting a business, food preservation methods, packaging guides, and an e-commerce guide.” Schlecht Decl. ¶¶ 19, 21 (7 TTABVUE 4-5). There is nothing in Mr. Schlecht’s Declaration or elsewhere in the record to suggest that the least sophisticated potential purchaser of
Opposition No. 91292154 - 54 - these specialized agriculture-related services would not exercise care in purchasing them. With respect to the consumers of the goods identified in the application, Mr. Johansen testified that “[b]ased on advertising data, [Applicant’s] consumers are general retail consumers that purchase our products to improve their personal health and wellbeing,” Johansen Decl. ¶ 14 (27 TTABVUE 7), and that “[b]ecause our clients are health conscious and care about their wellbeing, they tend to take time to research our brand and learn about our products before making a purchase.” Johansen Decl. ¶ 15 (38 TTABVUE 8). He was cross-examined about this testimony, and explained that the basis for it was that “[w]e speak with customers on a day-to-day basis, and we can understand what they are like.” Johansen Cross Tr. 57:1-10 (34 TTABVUE 19). Mr. Johansen and Opposer’s counsel engaged in a colloquy regarding such contacts with customers, and Mr. Johansen acknowledged that he did not know specific customers that had told him that they researched Applicant’s brand but believed that he had seen such statements on emails and social media. Johansen Cross Tr. 57:17-58:23 (34 TTABVUE 19-20). We assess the sophistication and likely degree of care of the purchasers of goods or services based on the record evidence, the inherent nature of the goods or services, and their price. The record shows that nutritional supplements in the form of gummies may be purchased online, and Applicant’s website provides a considerable amount of information regarding the nutritional benefits of the goods. Johansen Decl. Ex. EJV12 (38 TTABVUE 13-17, 20-21, 24-26, 29-56). The Amazon and TikTok
Opposition No. 91292154 - 55 - storefronts similarly provide such information. Johansen Decl. Exs. EJV18-EJV19 (38 TTABVUE 76-95, 113-14, 116-18). Large bags of Applicant’s nutritional supplements in the form of gummies are sold on its website for $31.99, Johansen Decl. Ex. EJV12 (38 TTABVUE 15-16, 19, 49-50, 53-59, 62), on Amazon for $40 and $44, Johansen Decl. Ex. EJV18 (38 TTABVUE 86, 92-95), and on TikTok for as little as $27. Johansen Decl. Ex. EJV19 (38 TTABVUE 112-14, 116-17, 119). These are relatively modest prices, but consistent with Mr. Johansen’s testimony, “[l]ow prices do not necessarily imply a low degree of consumer care in the selection of dietary supplements where the prospective consumers would be expected to exercise a reasonable degree of care regarding the products that they ingest to improve their health.” Inter IKEA, 2014 WL 1827031, at *11 (citation omitted). We find that the least sophisticated potential purchaser of Opposer’s services is likely to exercise at least some degree of care in purchasing them, and that the least sophisticated potential purchaser of nutritional supplements in the form of gummies is also likely to exercise “at least a moderate degree of consumer care when purchasing [such] dietary supplements.” Id. at *12. The fourth DuPont factor is neutral in our analysis of the likelihood of confusion. 4. Evidence of Actual Confusion The seventh DuPont factor considers the “nature and extent of any actual confusion.” DuPont, 476 F.2d at 1361. “[E]vidence of actual confusion is not required in order to establish likelihood of confusion,” Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 WL 6072822, at *24 (TTAB 2021) (internal quotation and quotation
Opposition No. 91292154 - 56 - marks omitted), but “where it exists, [it] would of course be highly probative of a likelihood of confusion.” Id. at *22 (quoting Brooklyn Brewery Corp. v. Brooklyn Brew Shop, No. 91223982, 2020 WL 4673282, at *24 (TTAB 2020), aff’d in relevant part, vacated in part, 17 F.4th 129 (Fed. Cir. 2021) (citing Edom Labs., Inc. v. Lichter, No. 91193427, 2012 WL 1267961, at *9 (TTAB 2013) (“The existence of actual confusion is normally very persuasive evidence of likelihood of confusion and undercuts any possible claim that the marks are so dissimilar that there can be no likelihood of confusion.”). “Properly introducing instances of actual confusion into the record and persuading the trier of fact as to the probative value of such evidence is [Opposer’s] burden.” Brooklyn Brewery, 2020 WL 4673282, at *24. Opposer argues that “[t]his case is unique in that [it] is able to show ample evidence of actual confusion between the parties in the marketplace.” 39 TTABVUE 19. According to Opposer, Ms. Voegele “identified at least 102 individual instances of actual confusion in her trial declaration,” id. (citing Voegele Decl. ¶ 6 (9 TTABVUE 3-7)), and “provided emails, contemporaneous notes of confusion, transcriptions, and audio recordings.” Id. at 20. Opposer discusses a number of these instances, arguing that they are “clear evidence that customers and individuals contacted [Opposer] believing that they had sold the gummies sold by [Applicant] under the identical trademark Auri.” Id. at 20-22 (record citations omitted). Opposer argues that the voicemails and emails are not offered to prove the truth of their comments, but rather “as evidence that the message sender contacted [Opposer] because they mistakenly believed they were the source of [Applicant’s] goods.” Id. at 22. Opposer concludes
Opposition No. 91292154 - 57 - that “[t]he 102 instances of actual confusion identified as of July, 2025 weighs [sic] heavily and dispositively in favor of” Opposer. Id. at 23. Applicant has a very different take on this evidence. Applicant argues that “Opposer’s purported evidence of actual confusion lacks probative value because it is deeply flawed and reflects mere consumer inattentiveness or carelessness, rather than true source confusion,” that Opposer’s “evidence does not demonstrate consumer confusion, rather the misdirected communications are indicative of careless internet directory mistakes and are de minimis considering Applicant’s high volume of consumer transactions,” and that “Opposer did not seek testimony from any of the individual senders, depriving Applicant of the opportunity for cross-examination and leaving the causation to mere inference.” 42 TTABVUE 33-34. Applicant claims that only 44 of the alleged 102 instances of actual confusion were made of record, id. at 34; that “many of the exhibits that were introduced constitute uncorroborated hearsay that must be accorded no evidentiary weight,” id.; that “several of the exhibits are either exact duplicates or represent multiple communications from the same individual,” id. at 35; and that “[o]nce these duplicate and repetitive inquiries are excluded, Opposer is left with a [sic] only 37 purported examples of misdirected communications.” Id. at 36. Opposer claims that “[n]otably, of these remaining 37 instances, more than half—19 separate communications—are from companies seeking wholesale accounts,” id. at 36, and that “[t]he wholesale inquiries Opposer relies upon are uniquely prone to extreme inattentiveness because they are not genuine consumer contacts, but rather blind, mass-solicitation blasts
Opposition No. 91292154 - 58 - from third-party resellers.” Id. at 37. As to these specific emails, Applicant concludes that “[m]ass-marketing spam and botched copy-and-paste form letters from careless Amazon resellers do not reflect the purchasing decisions of ordinary consumers, and they entirely fail to prove a legally actionable likelihood of confusion.” Id. Applicant argues alternatively that “[e]ven if this evidence were fully credited, misdirected customer service emails and voicemails typically demonstrate mere consumer inattentiveness rather than legally actionable source confusion.” Id. at 37- 38 (citing Crazy Horse Mem’l Found. v. Spencer, No. 91204980, 2014 WL 976890 (TTAB Feb. 26, 2014 ) (non-precedential) and Tidy Servs., Inc. v. Tidy Techs. Inc., No. 92074987, 2022 WL 17357894 (TTAB Nov. 4, 2022) (non-precedential)).45 Applicant also argues that Opposer’s evidence fails because it represents only a small fraction of consumer interaction. To be meaningful, evidence of actual confusion must be measured against the total number of opportunities for confusion. A handful of confused emails among millions of successful transactions is considered “trivial.” . . . Here, between May 2025 and September 2025, Applicant fielded approximately 13,000 consumer communications a month. . . . This encompassed all types of customer contacts including phone calls, email communications, and use of Applicant’s website contact form. . . . During this same time period, Opposer claims to have received twenty-four representative misdirected communications from Applicant’s consumers, primarily with post-sale related issues. . . . Even if all twenty-four of these communications were evidence- backed discrete consumer contacts and put into evidence, they would constitute approximately 0.0615% of the consumer 45 As discussed above, we are not bound by these non-precedential decisions, but may consider them for whatever persuasive value they may have. As discussed below, there is sufficient precedential Board authority regarding actual confusion to make it unnecessary to consider the cited non-precedential cases.
Opposition No. 91292154 - 59 - communications Applicant received from May 2025 - July 2025. Id. at 39-40 (citations omitted; emphasis in bold here in italics in Applicant’s brief). According to Applicant, “[i]n view of Applicant’s extremely high-volume retail business and the sheer number of consumer communications and sales transactions, together with the parties’ five years of coexistence, Opposer’s evidence of alleged confusion is de minimis and trivial.” Id. at 40. Applicant claims that “[a] commonsense view of the record proves that a small fraction of Applicant’s consumers are simply querying search engines to find a customer service number and blindly clicking the wrong link,” id., and cites Ms. Voegele’s cross-examination testimony regarding a particular email as support. Id. (citations omitted). Applicant concludes that the opposer’s actual confusion argument is fundamentally defective because it relies on uncorroborated, out-of-court statements that strip the Applicant of the opportunity for cross-examination. The misdirected emails and voicemails are classic examples of consumer carelessness and indifference, rather than actionable confusion regarding the source of the goods. The Board should follow its well- established precedents in Tidy Services and Crazy Horse and afford this flawed evidence minimal, if any, probative weight. Accordingly, this factor is neutral. Id. at 41.46 46 As discussed above, Tidy Services and Crazy Horse are not Board “precedents.”
Opposition No. 91292154 - 60 - Ms. Voegele’s Declaration lists 102 emails and calls between January 2023 and July 2025, Voegele Decl. ¶ 6 (9 TTABVUE 3-7),47 but she discusses only what she calls “representative samples of communications received by [Opposer], as well as [Opposer’s] contemporaneous records to show the nature of the misdirected communication.” Voegele Decl. ¶¶ 7-50; Exs. PX12-PX55 (9 TTABVUE 7-13).48 In our evidentiary rulings above, we have excluded Exhibits PX16-PX17, PX43, PX52, and PX53, but will consider the other emails and voicemail messages that are reflected in exhibits to the Voegele Declaration as well as her related testimony.49 We note in that regard that in discovery, Opposer identified Linda LaPlante, Amy Lund, and Lisa Martinez, but not Ms. Voegele, as “individuals that had responsibility for answering inquiries from third parties” mentioning Applicant, its mark, or its products. 25 TTABVUE 11 (Opposer’s Resp. to Interrogatory No. 8). None of the identified individuals testified at trial. 47 On cross-examination, Mr. Schlecht testified that “[w]e’ve had a few instances where groups have come across or people that we work with have come across Ejec and have asked if we are working with Ejec or with Auri Nutrition.” Schlecht Cross Tr. 24:1-7 (23 TTABVUE 30). Accepting his vague testimony at face value, such inquiries do not reflect actual confusion. Sabhnani, 2021 WL 6072822, at *23 (citations omitted). 48 On cross-examination, Ms. Voegele explained the reason for the omission of the other claimed instances of actual confusion as follows: “I’m sure it was just because there were so many and they were kind of redundant. At the end there’s a – a – there’s a consistent theme in terms of where – what people are saying and – and what their confusion is.” Voegele Cross Tr. 13:24-14:3 (21 TTABVUE 15-16). 49 The text portions of many of the emails were redacted as confidential even though in Ms. Voegele’s cross-examination testimony about some of these emails, and the voicemail messages discussed below, she identified the sender or caller by name in the publicly accessible transcript of her cross-examination testimony. In this opinion, “we will not identify the companies or individuals involved.” Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, No. 92051006, 2014 WL 1390528, at *22 (TTAB 2014).
Opposition No. 91292154 - 61 - a. Emails From Prospective Resellers and Business Partners Exhibits PX12-PX14, PX20-PX21, PX23-25, PX27-PX36, and PX38-PX42 are emails from companies or individuals that state on the face of the emails that the senders are interested in some sort of business relationship with Opposer.50 Voegele Decl. Exs. PX12 (seeking a wholesale account to sell unspecified products); PX13 (offering legal placement services for a general counsel search);51 PX14 (seeking to resell unspecified products); PX20 (seeking to resell unspecified products); PX21 (seeking to resell unspecified products through ecommerce platform); PX23 (seeking wholesale partnership to resell unspecified products); PX24 (seeking wholesale account to resell unspecified products); PX25 (seeking wholesale account to resell unspecified products);52 PX27 (seeking wholesale account to resell unspecified products); PX28 (“Institution of Massachusetts university,” a “potential buyer of your products and services,” seeking a price quote for “Quote Oil”); PX29 (“thriving retailer” seeking “wholesale partnership” to resell unspecified products); PX30 (“fitness establishment” seeking to establish “wholesale accounts for our gym locations” to sell unspecified products); PX31 (seeking to open a wholesale account 50 Ms. Voegele opined that each such email “appears to be intended for [Applicant]” and that “[b]ased on the context of this email, the sender believed they were reaching [Applicant].” Voegele Decl. ¶¶ 7-9, 15-16, 18-20, 22-31, 33-37 (9 TTABVUE 7-11). 51 In response to the email from the headhunter, Mr. Schlecht told the sender that “I think there might be some confusion as we are not seeking a General Counsel for our organization. Perhaps confusion with this Auri?” 9 TTABVUE 27. The headhunter responded that “I think you’re right, I may have the wrong organization.” Id. 52 As noted above, Exhibits PX24 and PX25 were sent by the same wholesaler suitor on different days.
Opposition No. 91292154 - 62 - and asking to check “which products I can order from you”); PX32 (Amazon retailer seeking to open a wholesale account to sell unspecified products); PX33 (seeking to become “an authorized wholesale partner” for unspecified products); PX34 (“online retail business in California” seeking to establish a wholesale account to resell unspecified products); PX35 (seeking to set up a wholesale account to resell unspecified products); PX36 (seeking to purchase unspecified products through private freight forwarder); PX38 (seeking to purchase unspecified products through private freight forwarder); PX39 (seeking to purchase unspecified products through private shipper); PX40 (seeking wholesale account to resell unspecified products on Amazon); PX41 (seeking to purchase “your product under the Health and Household category” in bulk orders); and PX42 (seeking to purchase unspecified products in bulk quantities). 9 TTABVUE 16-31, 44-45, 47-53, 56-57, 60-69, 82-87; 8 TTABVUE 41-42, 58-59, 78-81). Ms. Voegele was cross-examined about two of these emails. She testified that Exhibit PX12 was an email from “a representative of” a particular store, Voegele Cross Tr. 19:18-21 (21 TTABVUE 21), sent to her colleague Ashley Harguth, “so it was not a direct contact that I had.” Voegele Cross Tr. 13:8-19 (21 TTABVUE 15).53 She described the email’s subject matter “as a company that is looking to set up a wholesale business with – with purchasing gummies,” Voegele Cross Tr. 13:20-24 (21 TTABVUE 15), but admitted that the email does not mention gummies, Voegele Cross Tr. 13:25-14:2, 11-12 (21 TTABVUE 15-16), and does not name Applicant. 53 Ms. Harguth did not testify at trial.
Opposition No. 91292154 - 63 - Voegele Cross Tr. 14:23-25 (21 TTABVUE 16). She testified that there was nothing in the context of this particular email that made her believe that the sender was trying to reach Applicant, Voegele Cross Tr. 17:3-12 (21 TTABVUE 19), and that Opposer did not reach out to the sender to determine how the sender got Opposer’s contact information. Voegele Cross Tr. 17:16-24 (21 TTABVUE 19). Ms. Voegele described Exhibit PX14 as a request for a wholesale account. Voegele Cross Tr. 20:5-21:5 (21 TTABVUE 22-23). She acknowledged that the body of the email did not mention Applicant or “Auri,” Voegele Cross Tr. 21:17-22 (21 TTABVUE 23), and did not mention any specific product that the wholesaler wanted to sell. Voegele Cross Tr. 22:19-23:11 (21 TTABVUE 24-25). She confirmed that Opposer did not reach out to the sender to determine how the sender got Opposer’s contact information. Voegele Cross Tr. 23:12-17 (21 TTABVUE 25). Almost all of these emails sent by prospective resellers of unspecified products are generic “form” emails that could be sent to any company regarding resale of any product, and none of them refers to nutritional supplements in the form of gummies sold by Applicant. They are all solicitations offering services rather than customer emails. The Board has long recognized that persuasive evidence of actual confusion must show confusion as to source or sponsorship, not mere carelessness in attempts to contact a business. See, e.g., Malt-O-Meal Co. v. Little Crow Milling Co., 1965 WL 6595, at *2 (TTAB 1965) (“The several instances of misdirected mail to which opposer refers could well have been occasioned by carelessness, inattentiveness or to some other circumstance, and, since the persons responsible therefor[ ] were not called as
Opposition No. 91292154 - 64 - witnesses for opposer and made subject to cross-examination by counsel for applicant, it cannot be said that they were in fact occasioned by any similarity between the marks.”). See also J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:14 (5th ed.) (Sept. 2026 update) (“there is the possibility that e- mails were misdirected by people ‘because they were inattentive or careless, as opposed to being actually confused.’”) (quoting Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 636 (6th Cir. 2002)). It is entirely plausible that these “form” emails were what Applicant called “blind, mass-solicitation blasts from third-party resellers,” 42 TTABVUE 37, but even assuming that the senders were only trying to reach Applicant to purchase nutritional supplements in the form of gummies for resale, we find on this record that it is more likely than not that they reached Opposer because they searched the Internet using “Auri,” or a search term containing “Auri,” and selected Opposer’s website at its auri.org address rather than Applicant’s website at the less intuitive tryauri.com address.54 In that regard, Applicant submitted under its Second Notice of Reliance what it described as “search results from April 24, 2025 on the domain www.google.com for the phrase ‘how to contact auri’,” which Applicant offered to “demonstrate the lack of actual confusion by relevant consumers.” 26 TTABVUE 3, 15-38; Exs. EJV7-EJV11. “Google search results are not by themselves admissible under notice of reliance,” 54 As discussed below, Ms. Voegele testified about one voicemail message from a consumer in which the sender explained that she “googled Auri” and came to Opposer’s website after having done so. Voegele Cross Tr. 26:8-27:2 (21 TTABVUE 28-29).
Opposition No. 91292154 - 65 - Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., No. 92050879, 2013 WL 5407315, at *10 (TTAB 2013) (citation omitted), and they were not authenticated by a sponsoring witness who conducted the searches. See id. (overruling objection because a witness had properly authenticated the results during testimony). But an objection that matter is not properly submitted under a notice of reliance is a procedural one that is waived if not promptly asserted, Flame & Wax, 2022 WL 3083070, at *6, and here Opposer never objected to the search results on this ground. Instead, in its reply brief, Opposer simply states that “[t]hese exhibits are not supported by declaration, they are simply unsupported screenshots that evidence nothing relevant in this matter.” 44 TTABVUE 8-9. Accordingly we will consider the search results for whatever probative value they may have. In Alcatraz Media, the Board explained that “search results obtained from GOOGLE have limited evidentiary value due to their truncated nature insofar as the search summary does not show the context in which the term or phrase is used on the listed web pages and may not include sufficient surrounding text to provide the necessary context for the use.” Alcatraz Media, 2013 WL 5407315, at *10. Their probative value here, however, is not in what the truncated website excerpts show, but rather simply that links to both Opposer’s and Applicant’s websites appear in most of the results. 26 TTABVUE 15-38. This strongly suggests that anyone using a search term containing “auri” to locate Applicant on the Internet would be likely to have several websites, including auri.org and tryauri.com, from which to choose.
Opposition No. 91292154 - 66 - As Ms. Voegele acknowledged, Opposer did not reach out to the reseller senders to determine why and how they contacted Opposer, and in the absence of such information, we cannot infer that they reached Opposer because they actually believed Opposer to be the source of the products that they wanted to resell rather than because of carelessness in trying to find Applicant’s email address on the Internet.55 b. Emails From Consumers We turn next to the four emails from consumers, Exhibits PX18, PX22, PX26, and PX51.56 8 TTABVUE 38-39, 46-47, 54-55, 104-05. Exhibit PX18 stated that the sender’s wife ordered “Super mushroom gummies” but passed away before they were received, and inquired about returning the product. Id. at 38-39.57 Exhibit PX22 stated that the sender received one open bag of gummies after ordering two bags, and provided the order number. Id. at 46-47. Exhibit PX26 stated “Please STOP my subscription. I found out I am allergic to Mushrooms” and “Please respond to my email so I know you have cancelled this subscription.” Id. at 54-55. Exhibit PX51 55 To the extent that there is confusion resulting from the similarity of Applicant’s tryauri.com domain name to Opposer’s auri.org domain name, we can offer no remedy. Confusion occasioned by domain name similarity is beyond the Board’s limited subject matter jurisdiction unless the registrability of a domain name is at issue, or a domain name is asserted as a trademark or service mark in an inter partes proceeding, which is not the case here. Opposer’s remedy, if any, is under other portions of the Trademark Act or the Uniform Domain Name Dispute Resolution Policy (“UDRP”). 56 As discussed above, Exhibits PX18, PX22, and PX26 had duplicative counterparts in Exhibits PX52, PX43, and PX53. 57 Ms. Voegele was cross-examined only about Exhibit PX18 and testified that she was not working for Opposer when it was received, Voegele Cross Tr. 32:9-22 (21 TTABVUE 34), that it came through Opposer’s website contact form, Voegele Cross Tr. 32:23-33:1 (21 TTABVUE 34-35), and that to her knowledge, no one from Opposer contacted the sender. Voegele Cross Tr. 34:4-8 (21 TTABVUE 36).
Opposition No. 91292154 - 67 - stated that the sender placed an order and had not yet received it, and provided the order number. Id. at 104-05. On cross-examination, Mr. Johansen was examined as follows about how a dissatisfied customer would reach Applicant: Q What would a customer do if they had a problem with an Ejec product? A Reach out to our customer support. Q How would they do that? A Contact us -- website. A form on our website. Johansen Cross Tr. 30:15-20 (34 TTABVUE 13). He further testified that to use the contact form, customers have to email Applicant, Johansen Cross Tr. 32:11-14 (34 TTABVUE 13), and that customers receive an order confirmation email. Johansen Cross Tr. 34:20-22 (34 TTABVUE 14). It appears that most of Applicant’s customers who want to reach Applicant succeed in doing so, as Mr. Johansen confirmed on cross- examination the accuracy of his declaration testimony that “[b]ased on data from a period between May 2 2025 and September 2025, our customer service platform fields approximately 13,000 customer communications, i.e., phone calls, email communications, and contact form submissions, each month.” Johansen Cross Tr. 36:1-7 (34 TTABVUE 14). There is no doubt that the senders of the four emails discussed above were trying to reach Applicant regarding prior purchases from Applicant of nutritional supplements in the form of gummies, but the record evidence regarding Opposer’s receipt of the emails again begs the questions of how and why the senders contacted
Opposition No. 91292154 - 68 - Opposer at auri.org rather than Applicant at tryauri.com. All of the consumer senders of these emails stated that they had previously purchased nutritional supplements in the form of gummies from Applicant, but only one reported having received the product. Mr. Johansen testified that “[t]he vast majority of [Applicant’s] revenue is derived from direct-to-consumer product sales” and that “[t]hese direct-to-consumer sales are primarily conducted through the company’s website at https://tryauri.com, its Amazon storefront, and its TikTok Shop storefront.” Johansen Decl. ¶ 16 (38 TTABVUE 7). He authenticated pages from Applicant’s “Amazon storefront and its affiliated product listings” and Applicant’s “TikTok Shop storefront.” Johansen Decl. ¶ 17; Exs. EJV18-EJV19 (38 TTABVUE 9, 76-125). As far as we can tell, Applicant’s website address does not appear on its Amazon or TikTok storefronts or, if it does appear somewhere, it is not readily visible, and the front of Applicant’s packaging, shown above and elsewhere in the record, also does not appear to bear Applicant’s website address or other contact information.58 A consumer who received what Mr. Johansen described as an “order confirmation email,” Johansen Cross Tr. 34:20-22 (34 TTABVUE 14), might reasonably be expected to use the email address in that email to contact Applicant, but it is not clear whether any of the four consumers who emailed Opposer received such an email. In the absence of readily accessible contact information, the consumers could reasonably be 58 The back of Applicant’s package is not shown in the record; in Applicant’s specimen, the back of the package is shown while the package is lying flat, making it impossible to see its contents. October 24, 2022 Application at 7.
Opposition No. 91292154 - 69 - expected to use the Internet as a modern-day online address book to locate Applicant’s email address. We again find that it is more likely than not that the four consumer senders of emails to Opposer reached Opposer because they searched the Internet for “Auri” and selected Opposer’s website at auri.org. There is again no evidence that Opposer reached out to any of these consumers to determine why and how they contacted Opposer, and “without direct testimony from the supposedly confused individuals . . . there is insufficient evidence to ascertain what they were thinking, or whether they were actually confused.” Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019 WL 4877349, at *11 (TTAB 2019). “This is not evidence of actual confusion (a mistaken perception of a purchaser about the source or sponsorship of the goods), and is entitled to no weight.” Id. We cannot infer that the consumers reached Opposer because they believed Opposer to be the source of the products that they had purchased rather than because they were careless in trying to find Applicant’s email address on the Internet. c. Voicemail Messages and Summaries of Phone Calls We turn finally to the voicemail messages and summaries of phone calls, Exhibits PX15, PX44, PX45, PX46, PX47, PX48, PX49, PX50, PX54, and PX55. PX15 contains Ms. Voegele’s summary of a call that she received in which she stated that the caller asked to cancel her gummy subscription. Ms. Voegele testified that the caller “googled AURI Contact and my info came up,” that “I explained we are a different organization,” that the caller “said whenever she googles AURI gummies we come up or retail outlets,” and that “I told her to google AURI nutrition and that worked for
Opposition No. 91292154 - 70 - her.” Voegele Decl. Ex PX15 (8 TTABVUE 33). When asked about this call on cross- examination, Ms. Voegele responded that the caller “just, according to this, she googled AURI and my info came up.” Voegele Cross Tr. 26:10-11 (21 TTABVUE 28). She testified that [b]ased on this, she googled AURI. She came to our website. She had to navigate that website to find the Contact Us section. She went down to the Contact Us section, which first gives you a popup screen to fill in a form. She, obviously, navigated away from that and went to the right- hand margin of that page, saw my name and my e-mail and my phone number, and she, obviously, wrote that down and decided to contact me. Voegele Cross Tr. 26:14-21 (21 TTABVUE 28). Exhibit PX44 recorded the caller as stating that he “ordered some gummies last week from oral nutrition and haven’t received them yet” after having paid extra for shipping. The caller provided his telephone number. 8 TTABVUE 91. Exhibit PX45 recorded the caller as stating that he was calling regarding an order with a specific number. The caller also provided his telephone number for a return call. Id. at 93. Exhibit PX46 recorded the caller as stating that she was trying to order only one package online and that she could only order a subscription, which she did not want. The caller left her telephone number and requested a return call. Id. at 95. Exhibit PX47 recorded the caller as saying that he ordered a product and received it the first time but not the second. The caller left his telephone number and requested a return call. Id. at 97.
Opposition No. 91292154 - 71 - Exhibit PX48 recorded the caller as saying that he got a message “from you about something happening with my payment.” The caller left his telephone number and requested a return call. Id. at 99. Exhibit PX49 recorded the caller as saying that she requested overnight shipping of two products but got a confirmation email stating that delivery would be later. She left her confirmation number and telephone number. Id. at 101. Exhibit PX50 recorded the caller as saying that “This number I’m trying to contact Origami is this number is leading me to you” and that he hadn’t received his order. He left his name and telephone number. Id. at 103. Exhibit PX54 recorded the caller as stating that “I have sent you several emails saying that I want to quit my SU subscription to already Gumby’s and I just got another order today. I have stacks of them and I’m gonna return them. I asked to be refunded and stopped by a month ago and no one has stopped it” and that “Please stop all contacts or I will get a lawyer because they keep coming and stacking up.” The caller left her address and telephone number. Id. at 111.59 Exhibit PX55 recorded the caller as stating that “the order number that i did not order was 834169 and i’ve already sent all kind of things trying to cancel all this and i want it cancelled i don’t want anymore.” The caller left her telephone number and requested a text message confirming cancellation. Id. at 113. 59 Mr. Johansen was shown this transcription on cross-examination and testified that he did not know what was meant by the phrase “SU subscription.” Johansen Cross Tr. 68:18-20 (34 TTABVUE 22).
Opposition No. 91292154 - 72 - In addition to Exhibit PX15, Ms. Voegele was cross-examined about Exhibits PX50 and PX54. Voegele Cross Tr. 34:19-42:8 (21 TTABVUE 41-44)60. She testified that she did not contact the caller in PX50 and did not know if anyone else at Opposer had done so. Voegele Cross Tr. 38:9-15 (21 TTABVUE 40). She also testified that “I get the bulk of the calls” and that “[i]t seems I -- every time, I -- I don’t return the voicemails because there’s so many.” Voegele Cross Tr. 42:20-22 (21 TTABVUE 44). She claimed that I get at least one call a day, but if I pick up the phone and I am talking to someone, I do try to explain that they’ve reached the wrong company, and I try to be helpful because I don’t want any negative association that they have already with the gummy company to be reflective of us, because we are also named AURI. I want them to come away, thinking, well, I got the wrong AURI, but at least those folks were nice and were trying to help me. So I do try to redirect them. I tell them what I’ve heard from other customers, that sometimes, because there is no phone number available and the e-mail doesn’t seem to work, that they can try calling their credit card company to dispute the charge and have them work it from their end. So I do try my best to help them when I -- when I get them on the phone, but I don't have the time to go and return all the voicemails I get. I let those go. Voegele Cross Tr. 42:22-43:14 (21 TTABVUE 44-45). She also testified that [t]here was one lady who left me a voicemail who just sounded so distraught that I did call her back, actually, to tell her. I felt bad for her, and so I made sure she knew she hadn’t gotten the right number. There was another lady who I accidentally -- I guess she was in my phone and I somehow dialed her by accident, and I was like, oh, no, kind 60 We have discussed most of her testimony regarding Exhibits PX51 and PX54 in our evidentiary ruling above on Applicant’s Best Evidence Rule objection.
Opposition No. 91292154 - 73 - of thing, you know? And then she answered and she said, oh, I was expecting your call, and, you know, because she recognized my name because it came up on her phone, and so I talked to her, and again, just explained the situation. So a couple of times I have reached out, yep. Voegele Cross. Tr. 44:25-45:14 (21 TTABVUE 46-47). There is no documentation in the record, such as call notes, corroborating Ms. Voegele’s testimony that she gets “at least one call a day,” or that “a couple of times I have reached out, yep.” There is again no doubt that the callers were trying to call Applicant, but we are again confronted with the issue of why they called Opposer instead. Mr. Johansen testified on cross-examination that the contact form on Applicant’s website does not contain a telephone number, and that he was not sure that a telephone number appeared elsewhere on the site, Johansen Cross Tr. 32:3-10 (34 TTABVUE 13), and, as discussed above, Applicant’s packaging and the websites of its two primary resellers also do not appear to provide Applicant’s telephone number. Ms. Voegele confirmed that Opposer has done no formal investigation of the calls and emails, Voegele Cross Tr. 44:13-17 (21 TTABVUE 46), and the only evidence in the record explaining exactly why a caller called Opposer rather than Applicant is the voicemail from the caller who said that she had “googled AURI Contact and my info came up.” Voegele Cross Tr. 26:10-11 (21 TTABVUE 28). We find this to be the most plausible explanation for all of the misdirected voicemail messages. Many of the callers had received at least one package of Applicant’s nutritional supplements in the form of gummies and could reasonably have been expected to refer, in the first instance, to the package for Applicant’s contact information, including a telephone number, but it does not appear that such
Opposition No. 91292154 - 74 - contact information is available. In the absence of such information on the package (or in the absence of the package itself), the logical next step is one familiar to everyone who owns a mobile phone—to use the Internet as a modern-day online telephone directory. Exhibit PX15, Ms. Voegele’s summary of the call that she received in which she stated that the caller asked to cancel her gummy subscription, indicates that the search term used in a search of that telephone directory makes a difference. According to Ms. Voegele, using “AURI gummies” caused a consumer to reach Opposer, while using “AURI nutrition” caused the same consumer to reach Applicant. Voegele Decl. Ex PX15 (8 TTABVUE 33). As discussed above, Applicant’s own Google searches for “how to contact auri” disclosed both websites. Investigation of the website identified in response to the “AURI gummies” search referenced in Exhibit PX15 would have revealed that Opposer was not the source of the gummies because Opposer does not “sell any products,” Voegele Cross Tr. 31:12 (21 TTABVUE 33), but such an investigation was apparently never made. There is again “insufficient evidence to ascertain what [the callers] were thinking, or whether they were actually confused.” Double Coin Holdings, 2019 WL 4877349, at *11. On this record, we cannot infer that the callers reached Opposer because they believed Opposer to be the source of the gummies that they had purchased rather than because they were careless in trying to find Applicant’s telephone number on the Internet.
Opposition No. 91292154 - 75 - d. Summary of Actual Confusion Evidence Opposer claims that the “instances of actual confusion identified as of July, 2025 weighs [sic] heavily and dispositively” in its favor, 39 TTABVUE 23, and the record does contain a large number of emails and calls that might appear at first blush to show actual confusion. The Board has observed that the Federal Circuit has suggested that in the context of large numbers of third-party marks under the sixth DuPont factor, “quantity has a quality all its own,” Cielo e Terra, 2026 WL 2624328, at *20, but that principle does not extend to instances of actual confusion under the seventh factor. Although even a single clear instance of actual confusion may be potent evidence of likelihood of confusion, “evidence of actual confusion ‘is too important to be established by means of an inference, unsupported by corroborating evidence.’” Couch/Braunsdorf Affinity, 2014 WL 1390528, at *26 (quoting Toys “R” Us, Inc. v. Lamps R Us, No. 91065977, 1983 WL 50152, at *8 (TTAB 1983)). The number of misdirected emails and calls here is substantial, but in this context quantity does not have a quality all its own. On this record, the contacts are at least equally consistent with inattention and carelessness on the part of the senders and callers in using the Internet to locate Applicant as they are with the actual mistaken belief that Opposer sells Applicant’s gummies, and Ms. Voegele’s summary in Exhibit PX15 of her call with a consumer who asked to cancel her gummy subscription supports only the former explanation, not the latter one. Opposer had the burden of “persuading the trier of fact as to the probative value of [this] evidence,” Brooklyn Brewery, 2020 WL 4673282, at *24, and the means and opportunity to contact email senders and callers to gather evidence to carry that
Opposition No. 91292154 - 76 - burden, but it did not do so. The evidence has limited probative value and does not support a finding of actual confusion. The seventh DuPont factor is neutral in our analysis of the likelihood of confusion. 5. Balancing the DuPont Factors “The final step in analyzing likelihood of confusion is to weigh the DuPont factors for which there has been evidence and argument; ‘explain the results of that weighing;’ and discuss ‘the weight [we] assigned to the relevant factors.’” In re Jimenez, No. 97551823, 2025 WL 3126703, at *8 (TTAB 2025) (quoting In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023)). “No mechanical rule determines likelihood of confusion, and each case requires weighing of the facts and circumstances of the particular mark.” Id. (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010)). “‘The weight afforded to each factor depends on the circumstances’ and ‘any single factor may control a particular case.’” Id. (quoting Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 998 (Fed. Cir. 2020)). Here, the key first and second DuPont factors point us in different directions. Under the first factor, we have found that the parties’ marks are similar, and this factor thus strongly supports a conclusion that confusion is likely. Under the second factor, we have found that the parties’ goods and services are unrelated, and this factor thus strongly supports the opposite conclusion that confusion is unlikely. Under the third factor, we have similarly found that the channels of trade and classes of consumers for the parties’ goods and services do not overlap, and the lack of overlap also strongly supports a conclusion that confusion is unlikely. The fourth factor and
Opposition No. 91292154 - 77 - the seventh factor, the one that Opposer claims is dispositive, 39 TTABVUE 23, are neutral. “[T]he ‘similarity or dissimilarity of the marks in their entireties’ is a predominant inquiry,” Heil Co., 2024 WL 4925901, at *29 (quoting Herbko, 308 F.3d at 1165), and a finding that marks are similar is a necessary, but not sufficient, prerequisite to every conclusion that confusion is likely. The similarity of the marks alone, however, cannot establish likelihood of confusion if the involved goods and services, channels of trade, and classes of consumers are sufficiently distinct. See, e.g., M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 1385 (Fed. Cir. 2006) (“because the DuPont factors favoring [the applicant], i.e., the unrelated nature of the parties’ goods and the fact that the marks are used in different channels of trade and with respect to different purchasers outweigh the factors favoring [the opposer], i.e., the similarity of the marks and the fanciful nature of its mark, the board properly found that confusion was not likely”); Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984) (affirming summary judgment of no likelihood of confusion based on the dissimilarity of the parties’ goods); cf. St. Helena Hosp., 747 F.3d at 755 (although the Board properly found that the marks TAKETEN and TAKE TEN! were similar, “substantial evidence [did] not support the PTO’s refusal to register . . . given the dissimilarities in the respective services and goods and the high degree of consumer care”). Although the marks are similar, we conclude that confusion is unlikely because the parties’ respective goods and services have not been shown to be related, and they
Opposition No. 91292154 - 78 - are not offered through overlapping channels of trade to overlapping consumers. On this record, the second and third DuPont factors outweigh the first DuPont factor, and we find that Opposer has not shown, by a preponderance of the evidence, that confusion is likely. Decision: The opposition is dismissed.
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