Nicholson, Herdine O; Faulkner & Rose, Inc

This Opinion is Not a
Precedent of the TTAB
Mailed: September 1, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Herdine O. Nicholson and Faulkner & Rose, Inc.
_____
Serial No. 98674911
_____
Steven Laut of Sherman IP LLP,
for Herdine O. Nicholson and Faulkner & Rose, Inc.
Daniel Bice, Trademark Examining Attorney, Law Office 128,
Travis Wheatley, Managing Attorney.
_____
Before Lykos, Goodman and Cohen,
Administrative Trademark Judges.
Opinion by Goodman, Administrative Trademark Judge:
Herdine O. Nicholson and Faulkner & Rose, Inc. (“Applicants”) seek registration
on the Principal Register of the standard character mark MAINSAIL REAL ESTATE
(REAL ESTATE disclaimed) for services ultimately identified as
Real estate brokerage, namely, real estate brokerage
services involving the sale of residential homes,
condominiums, and commercial properties, including office
buildings, retail centers, and hotels, the foregoing services
excluding rental of vacation homes, vacation home rental
management services, and real estate development and

Serial No. 98674911
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construction of hotel and vacation rental properties in
International Class 36.1
The Trademark Examining Attorney has refused registration of Applicants’ mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood
of confusion with the following Principal Register marks, owned by different entities:
(LODGING and DEVELOPMENT disclaimed)
for “Real estate development and construction of hotel and vacation rental properties”
in International Class 372 and the standard character mark MAINSAIL VACATION
RENTALS (VACATION RENTALS disclaimed) for “Real estate services, namely,
rental of vacation homes; Real estate services, namely, vacation home rental
management services” in International Class 36.3
1 Application Serial No. 98674911 was filed on July 31, 2024, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicants’ claim of first use anywhere of
February 1, 2021 and use in commerce since at least as early as April 1, 2023. Applicants
initially sought registration of services identified in Class 35 as well, but withdrew this class
after the Examining Attorney issued an initial refusal.
Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) electronic database. References to the
briefs on appeal refer to the Board’s TTABVUE docket system. Applicants’ brief is at 14
TTABVUE. The Examining Attorney’s brief is at 16 TTABVUE.
2 Registration No. 6406158 issued July 6, 2021 (Section 8/15 combined declaration filed). The
description of the mark states: “The mark consists of the stylized wording ‘MAINSAIL’ above
a horizontal line, which is above the stylized wording ‘LODGING · DEVELOPMENT’. All the
foregoing is to the right of three stylized ship sails.” Color is not claimed as a feature of the
mark. “LODGING” and “DEVELOPMENT” disclaimed.
3 Registration No. 5902866 issued November 5, 2019, Section 8/15 combined declaration
accepted and acknowledged.

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When the refusal was made final, Applicants appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, or to cause mistake, or to
deceive. Trademark Act Section 2(d), 15 U.S.C. § 1052(d). Our determination of
likelihood of confusion under Section 2(d) is based on an analysis of all probative facts
in the record that are relevant to the likelihood of confusion factors set forth in In re
E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). See
also In re Majestic Distilling Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). We consider
each DuPont factor for which there is evidence and argument. See, e.g., In re Guild
Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019); In re Country Oven, Inc., No.
87354443, 2019 TTAB LEXIS 381, at *2.
Varying weight may be assigned to each DuPont factor depending on the evidence
presented, and not all DuPont factors are relevant in every case. See In re Charger
Ventures LLC, 64 F.4th 1375, 1381 (Fed. Cir. 2023) (“In any given case, different
DuPont factors may play a dominant role and some factors may not be relevant to the
analysis.”); Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 998
(Fed. Cir. 2020) (“Not all DuPont factors are relevant in each case, and the weight

Serial No. 98674911
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afforded to each factor depends on the circumstances. Any single factor may control
a particular case.”) (citation omitted).
In every Section 2(d) case, two key factors are the similarity or dissimilarity of the
marks and the goods or services. See In re i.am.symbolic, llc, 866 F.3d 1315, 1322
(Fed. Cir. 2017); Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165 (Fed.
Cir. 2002); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103
(CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods [or services] and
differences in the marks.”). These factors, and others, are discussed below.
As explained below, because Applicants’ proposed mark is likely to cause confusion
with the cited Registration No. 5902866 for the mark MAINSAIL VACATION
RENTALS (VACATION RENTALS disclaimed), we need not address likelihood of
confusion based on the other cited registration owned by a different entity. A finding
of likelihood of confusion between Applicants’ mark and MAINSAIL VACATION
RENTALS suffices by itself to bar registration of Applicants’ mark under Section 2(d);
we need not find likelihood of confusion as to the other registration cited by the
Examining Attorney. See In re Max Cap. Grp. Ltd., No. 77186166, 2010 TTAB LEXIS
1, at *19-20.
We therefore refer to Registration No. 5902866 as the cited registration and
MAINSAIL VACATION RENTALS as the cited mark in this decision.

Serial No. 98674911
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A. Similarity or Dissimilarity of the Services
The second DuPont factor considers “[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration.” DuPont, 476
F.2d at 1361. It is sufficient for a finding of likelihood of confusion if relatedness is
established for any service encompassed by the identification within a particular
class in the application or registration. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun
Grp., Inc., 648 F.2d 1335, 1336 (CCPA 1981).
Applicants’ services are:
Real estate brokerage, namely, real estate brokerage
services involving the sale of residential homes,
condominiums, and commercial properties, including office
buildings, retail centers, and hotels, the foregoing services
excluding rental of vacation homes, vacation home rental
management services, and real estate development and
construction of hotel and vacation rental properties.
The cited registration’s services are:
Real estate services, namely, rental of vacation homes;
Real estate services, namely, vacation home rental
management services.
The Examining Attorney provided internet evidence to show the relatedness of
vacation home rental services and real estate brokerage services.4 The Examining
Attorney’s internet evidence shows that vacation home rental services and real estate
brokerage services are frequently offered under the same or similar marks by the
same or related entities, including Porter, Property Collective, Dune (Dune Vacation
Rental Services/Dune Referral Services LLC), Harris Realty, and Railey (Railey
4 February 8, 2025 Office Action pp. 91-123; May 12 2025 Office Action pp. 8-70.

Serial No. 98674911
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Realty/Railey Vacations).5 These entities offer services for vacation home rentals
which may be, for example, single family homes or condominiums, and for purchasing
vacation homes, showing that the relevant services are commonly marketed together
and may emanate from a common source.
Applicants argue that their amended identification “expressly excludes vacation
rental and development services” and therefore, “the Post-amendment, brokerage
services are distinct.”6
Although the cited registration is limited to vacation rental home services and
vacation rental home management, it is otherwise unrestricted as to channels of
trade and classes of consumers. Applicants’ exclusion does not meaningfully limit
either, and the exclusion is not a meaningful limitation to the services because as
indicated, the evidence shows the services are commonly marketed together. See In
re i.am.symbolic, LLC, No. 85044494, 2015 TTAB LEXIS 369, at *9-10, (limiting
language “associated with William Adams, professionally known as ‘will.i.am’” was
not a meaningful limitation to the goods because it did not change the nature of the
goods or how consumers encounter the goods in the marketplace nor did the
limitation restrict the classes of consumers) aff’d 866 F.3d 1315.
In particular, the record shows that vacation home rental services and real estate
brokerage services are commonly offered together by the same or related entities
under the same or similar marks and marketed to the same class of consumers.
5 February 8, 2025 Office Action pp. 91, 94, 101, 103; May 12, 2025 Office Action pp. 8, 11,
59, 63, 64, 67.
6 14 TTABVUE 7.

Serial No. 98674911
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Moreover, consumers will not be aware of the existence of this exclusionary language
in Applicants’ identification. Thus, Applicants’ limitation in the recitation of services
does not eliminate the relatedness issue because consumers are accustomed to
encountering real estate brokerage services and vacation home rental services offered
together by the same or related entities under the same or similar marks.
The issue is whether the services are so related that consumers encountering
similar marks are likely to believe they come from a common source. Based on the
Examining Attorney’s evidence, we find that the respective vacation home rental
services and real estate brokerage services are sufficiently related.
B. Similarity or Dissimilarity of the Trade Channels and Conditions of Sale
We consider the “similarity or dissimilarity of established, likely-to-continue trade
channels” and “[t]he conditions under which and buyers to whom sales are made, i.e.
‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 476 F.2d at 1361.
Because the services of Applicant and Registrant have no meaningful restrictions
or limitations as to channels of trade or classes of purchasers, we presume that the
goods will be marketed in all normal trade channels and to all normal classes of
purchasers for such services. See Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d
1352, 1361 (Fed. Cir. 2000).
The classes of consumers are those seeking to purchase properties and to rent
vacation homes. As to trade channels, we find that the trade channels overlap because
the internet evidence provided by the Examining Attorney shows that providers of
vacation home rental services also offer real estate brokerage services to market and

Serial No. 98674911
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sell vacation home properties. Consumers seeking residential property real estate
brokerage services may encounter Registrant’s vacation home rental services in the
same marketplace.
As to conditions of sale, purchaser sophistication or degree of care may tend to
minimize likelihood of confusion. Conversely, impulse purchases of inexpensive items
may tend to have the opposite effect. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin
Fondee En 1772, 396 F.3d 1369, 1376 (Fed. Cir. 2005). We must make our
determination based on the least sophisticated consumer. Stone Lion Cap. Partners,
L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014).
Applicants argue “Real estate brokerage transactions commonly exceed $300,000
(per industry norms referenced in the record) and involve agents, inspections,
financing, and negotiation.”7
The evidence in the record shows homes priced as low as $199,000
with most well above that amount and reaching over $4 million.8 Additionally,
looking to the intrinsic nature of the services themselves, we acknowledge that real
estate brokerage services to sell real estate are not “average consumer services,” can
be relatively expensive, and would require some degree of care due to their nature
and cost. See In re Charger Ventures LLC, 64 F.4th at 1378-79 (noting the Board’s
finding that the identified real estate services are “not average consumer services”
7 14 TTABVUE 8.
8 February 8, 2025 Office Action (pp. 107-108); May 12, 2025 Office Action pp. 30-51. The
webpages showing listed properties reflect asking prices from well over $100,000 through the
$4 million range with many of the properties falling in the $300,000 to $500,000 ranges
(approximately 110 properties).

Serial No. 98674911
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and that the purchaser would exercise elevated care due to the nature and cost of real
estate services) (citing Elec. Design & Sales Inc. v. Elec. Data Sys. Corp., 954 F.2d
713, 718 (Fed. Cir. 1992)). We find that even in the case of the least sophisticated
purchaser, a decision as important as choosing a residence, or purchasing commercial
properties, will be made with some thought and research and a higher degree of care.
C. Strength 9
The sixth DuPont factor considers “[t]he number and nature of similar marks in
use on similar goods [or services].” DuPont, 476 F.2d at 1361.
Applicants argue that MAINSAIL has “nautical suggestiveness and diluted scope”
based on the existence of ten active registrations of MAINSAIL formative marks10 “in
financial and real estate-adjacent fields.”11
Applicants’ argument in reference to third-party registrations relates to
conceptual strength. Tao Licensing, LLC v. Bender Consulting Ltd., No. 92057132,
2017 TTAB LEXIS 437, at *47 (“third-party registration evidence that does not
equate to proof of third-party use may bear on conceptual weakness if a term is
commonly registered for similar goods or services.”). Conceptual strength is a
9 The fifth DuPont factor examines the extent to which the public perceives the mark as
indicating a single source of origin, i.e., its fame or commercial strength. DuPont, 476 F.2d at
1361. As is normally the case in ex parte proceedings, this factor is treated as neutral. See In
re Thomas, No. 78334625, 2006 TTAB LEXIS 135, at *18 n.11.
10 Applicants also reference the third-party applications for similar marks they made of
record. However, they would be entitled to little, if any, weight in the strength analysis,
because “pending applications are not evidence of anything except that the applications were
filed on a certain date.” Nike, Inc. v. WNBA Enters., LLC, No. 91160755, 2007 TTAB LEXIS
39, at *38.
11 14 TTABVUE 7.

Serial No. 98674911
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measure of the cited mark’s distinctiveness, which may be placed “in categories of
generally increasing distinctiveness: … (1) generic; (2) descriptive; (3) suggestive; (4)
arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768
(1992).
Registrant’s mark MAINSAIL VACATION RENTALS with a disclaimer of
VACATION RENTALS is registered on the Principal Register without a showing of
acquired distinctiveness. As a whole, the mark is inherently distinctive, although the
strength is somewhat limited by the disclaimed generic or descriptive terms
VACATION RENTALS. See Sock It to Me v. Fan, No. 91230554, 2020 TTAB LEXIS
201, at *30 (SOCK IT TO ME for socks “taken as a whole, is inherently distinctive,
although its strength is somewhat limited by its first word, SOCK, which is generic
for socks.”). Although the cited mark is inherently distinctive as a whole, we may
consider whether an inherently distinctive mark is “weak as a source indicator” in
the course of the DuPont analysis. See, e.g., In re Fat Boys Water Sports LLC, No.
86490930, 2016 TTAB LEXIS 150, at *23.
The record includes ten third-party registrations containing the wording MAIN
SAIL or MAINSAIL, either alone or as a component of a mark which were submitted
by Applicants to argue that the shared wording MAINSAIL or MAIN SAIL is
conceptually weak.12
12 August 8, 2025 Request for Reconsideration pp. 7-22.

Serial No. 98674911
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However, two of the registrations are the cited registrations themselves: Reg. No.
5902866, MAINSAIL VACATION RENTALS, and Reg. No. 6406158, MAINSAIL
LODGING & DEVELOPMENT and design.13 In addition, several registrations
appear to be commonly owned. Specifically, Reg. Nos. 6122804 and 3261139 (MAIN
SAIL and MAIN SAIL and design) are owned by the same entity and are for a broad
range of business consulting, management, marketing, procurement,
staffing/personnel, business research, and business technology consulting services in
Class 35.14 Reg. No. 6122804 also lists IT and technical support services in Class 42,
including monitoring computer network systems, troubleshooting web/database
applications and hardware/software issues, and consulting regarding computer
networks and hardware/software systems. Reg. No. 3261139 also lists Class 37
computer installation, repair, and maintenance services for computer hardware,
systems, and networks. Reg. Nos. 3557604 and 3557605 (MAINSAIL PARTNERS
and MAINSAIL PARTNERS and design) are also owned by the same entity and both
are for venture capital and private equity funding services for emerging and growing
private companies in Class 36.15
The remaining registrations owned by different entities are Reg. No. 7648991
MAINSAIL for downloadable software and online non-downloadable software used
for tracking, monitoring, and processing freight and cargo, and for managing freight
13 August 8, 2025 Request for Reconsideration pp. 14-17.
14 August 8, 2025 Request for Reconsideration pp. 7-9.
15 August 8, 2025 Request for Reconsideration pp. 12-13.

Serial No. 98674911
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and cargo handling facilities in Classes 9 and 42; Reg. No. 3464597 MAINSAIL for
pesticides for agricultural and non-agricultural use in Class 5; Reg. No. 4795573
MAINSAIL GLOBAL for aeration diffusers used in the treatment of wastewater in
Class 11 and for construction, installation, maintenance, repair, and refurbishment
of wastewater aeration systems in Class 37; and Reg. No. 7615925 MAINSAIL
MEDIA for publishing of books, e-books, audio books, music and illustrations in Class
41.16
Third-party registrations featuring goods or services dissimilar or unrelated to
those in the application and the cited registration are of little probative value to show
weakness. See Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315,
1325 (Fed. Cir. 2018) (error to rely on third-party evidence of similar marks for
dissimilar goods, as Board must focus on goods/services “shown to be similar”).
Although Applicants argue that many of these registrations are in “financial and real
estate-adjacent fields,” they have offered no explanation nor evidence to show the
goods or services listed in the third-party MAIN SAIL/MAINSAIL and MAINSAIL-
formative registrations are “similar” to Registrant’s vacation rental home real estate
services. See In re i.am.symbolic, llc, 866 F.3d 1315, 1328 (Fed. Cir. 2017)
(disregarding third-party registrations for goods in other classes where the proffering
party “has neither introduced evidence, nor provided adequate explanation to support
a determination that the existence of I AM marks for goods in other classes, ... support
16 August 8, 2025 Request for Reconsideration pp. 10, 18-22. All of the MAINSAIL formative
registrations, including the cited registrations, have disclaimed wording (i.e, VACATION
RENTALS, LODGING and DEVELOPMENT, PARTNERS, GLOBAL, MEDIA).

Serial No. 98674911
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a finding that registrants’ marks are weak with respect to the goods identified in their
registrations”). Thus, the third-party registrations have less probative value to show
the conceptual weakness of MAINSAIL/MAIL SAIL in the real estate industry.
We take judicial notice of the dictionary definition for MAINSAIL.17 See Quiktrip
W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 1035 (Fed. Cir. 2021); Made in Nature,
LLC v. Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 228, at *26 (in connection
with evaluating the cited mark’s conceptual strength, we may consider dictionary
definitions; the Board took judicial notice of dictionary definitions). Arguably, in
connection with oceanfront or beach properties, the term MAINSAIL may suggest
sailing or coastal living and therefore has a somewhat suggestive significance when
used in connection with vacation rental real estate services, particularly in coastal or
beachfront locations. We find MAINSAIL to have some conceptual weakness
resulting in a slightly narrower scope of protection than an arbitrary mark.
This DuPont factor weighs slightly against likelihood of confusion.
D. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation, and commercial
17 AMERICAN HERITAGE DICTIONARY (ahdictionary.com) 1. The principal sail of a vessel
(accessed August 28, 2026).
The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed form or regular fixed editions. In re Red Bull GmbH, No. 75788830, 2006
TTAB LEXIS 136, at *7; Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imps. Co., No.
91061847, 1982 TTAB LEXIS 146, at *7, aff’d, 703 F.2d 1372 (Fed. Cir. 1983).

Serial No. 98674911
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impression. Palm Bay Imps., 396 F.3d at 1371 (citing DuPont, 476 F.2d at 1361).
Similarity in any one of these elements may be sufficient to find the marks
confusingly similar. In re Davia, No. 85497617, 2014 TTAB LEXIS 214, at *4.
Marks must be considered in their entireties, 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.” In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985).
Disclaimed matter that is descriptive or generic of a party’s services is typically less
significant or less dominant when comparing marks. Citigroup Inc. v. Cap. City Bank
Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1257 (Fed. Cir. 2011) (when a mark
consists of two or more words, some of which are disclaimed, the word not disclaimed
is generally regarded as the dominant or critical term) (citing In re Dixie Rests. Inc.,
105 F.3d 1405, 1407 (Fed. Cir. 1997)); In re Hughes Furniture Indus., 2015 TTAB
LEXIS 65, at *16 (disclaimed terms not dominant portion of mark) (citations omitted).
The test under the first DuPont factor is not whether the marks can be
distinguished when subjected to a side-by-side comparison, but rather whether the
marks are sufficiently similar in terms of their overall commercial impression that
confusion as to the source of the services offered under the respective marks is likely
to result. 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 specific, impression of trademarks. See Inter IKEA Sys. B.V. v.

Serial No. 98674911
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Akea, LLC, No. 91196527, 2014 TTAB LEXIS 166, at *17; Sealed Air Corp. v. Scott
Paper Co., No. 91055167, 1975 TTAB LEXIS 236, at *6.
The cited mark is MAINSAIL VACATION RENTALS (VACATION RENTALS
disclaimed) and Applicants’ mark is MAINSAIL REAL ESTATE (REAL ESTATE
disclaimed), with both in standard characters.
In view of the disclaimers in each mark (VACATION RENTALS and REAL
ESTATE), the dominant term in each mark is MAINSAIL which is identical in sound,
appearance, meaning and commercial impression. See In re Allegiance Staffing, No.
85663950, 2015 TTAB LEXIS 180, at *11 (“Because descriptive words have little
source-indicating significance, it is appropriate that we give less weight”). The lead
element MAINSAIL in each of the marks has a position of prominence, as the first
word in each mark and the term that consumers likely will remember. Presto Prods.
v. Nice-Pak Prods., No. 91074797, 1988 TTAB LEXIS 60, at *8 (“[I]t is often the first
part of a mark which is most likely to be impressed upon the mind of a purchaser and
remembered ....”).
Applicants argue that MAINSAIL REAL ESTATE “evokes brokerage of
permanent property transfers, while the cited marks emphasize hospitality-focused
services. The disclaimed term REAL ESTATE amplifies the difference in commercial
impression.”18
Here, the dominant element of both marks is MAINSAIL. The other wording in
the two marks, i.e., VACATION RENTALS and REAL ESTATE is descriptive or
18 14 TTABVUE 8.

Serial No. 98674911
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generic matter which has been disclaimed by registrant and Applicants, respectively,
and these terms contribute very little to the commercial impressions created by the
two marks.
Moreover, any dissimilarity in the marks that might result from the use of
different descriptive or generic wording is greatly outweighed by the marks’ basic
similarity–their shared use of the MAINSAIL. While differences admittedly exist
between the marks due to the disclaimed terms, when considered in their entireties,
Applicants’ MAINSAIL REAL ESTATE mark is substantially similar to Registrant’s
MAINSAIL VACATION RENTALS mark.
Additionally, even if consumers were to notice the differences in the respective
marks, they may well believe that due to the shared term MAINSAIL the real estate
services offered by Applicants under their MAINSAIL REAL ESTATE mark
represents an expanded line of real estate services from the same source as the
company which offers vacation rentals under the MAINSAIL VACATION RENTALS
mark.
When compared in their entireties, we find the marks are similar in sound and
appearance and are likely to create substantially similar commercial impressions
upon the minds of prospective purchasers.
E. Actual Confusion
The seventh DuPont factor considers the nature and extent of any actual
confusion. DuPont, 476 F.2d at 1361.

Serial No. 98674911
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Applicants argue “there also is no evidence of actual consumer confusion.”19
However, “uncorroborated statements of no known instances of actual confusion are
of little evidentiary value.” In re Majestic Distilling Co., 315 F.3d at 1317. Moreover,
in the context of an ex parte appeal, there is no opportunity to hear from the
registrant about whether it is aware of any reported instances of confusion. See In re
Opus One, Inc., No. 75722593, 2001 TTAB LEXIS 707, at *19-20 (citations omitted)
(“The fact that an applicant in an ex parte case is unaware of any instances of actual
confusion is generally entitled to little probative weight in the likelihood of confusion
analysis, inasmuch as the Board in such cases generally has no way to know whether
the registrant likewise is unaware of any instances of actual confusion, nor is it
usually possible to determine that there has been any significant opportunity for
actual confusion to have occurred.”).
In any event, it is unnecessary to show actual confusion in establishing a
likelihood of confusion. Weiss Assocs. Inc. v. HRL Assocs. Inc., 902 F.2d 1546, 1549
(Fed. Cir. 1990). Therefore, we find this factor is neutral.
F. Any Other Established Fact Probative of the Effect of Use
The thirteenth DuPont factor examines “any other established fact probative of
the effect of use.” DuPont, 476 F.2d at 1361. Rarely invoked, the thirteenth DuPont
factor is intended to accommodate “the need for flexibility in assessing each unique
set of facts.” In re Strategic Partners, No. 77903451, 2012 TTAB LEXIS 80 at *6. The
19 14 TTABVUE 8.

Serial No. 98674911
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thirteenth DuPont factor does consider evidence of bad faith adoption. L.C. Licensing
Inc. v. Berman, No. 91162330, LEXIS 2008 TTAB LEXIS 756, at * 20.
Applicants argue that no bad faith exists.20 However, Applicants’ alleged good
faith adoption of the involved mark does not aid Applicants in establishing the
absence of a likelihood of confusion. See Apple Computer v. TVNET.net Inc., No.
91168875 2007 TTAB LEXIS 80 at *14 n.7 (“While evidence of bad faith adoption
typically will weigh against an applicant, good faith adoption typically does not aid
an applicant attempting to establish no likelihood of confusion.”) (citing J&J Snack
Foods Corp. v. McDonald’s Corp., 932 F.2d 1460 (Fed. Cir. 1991)).
II. Conclusion
As a final step, we “weigh the DuPont factors used in [our] analysis and explain
the results of that weighing.” In re Charger Ventures, 64 F.4th at 1384 (emphasis
omitted). The similarity of the marks, the relatedness of the services, the similar
trade channels and classes of consumers weigh in favor of finding a likelihood of
confusion. Purchasing conditions weigh against such a finding; the strength of the
mark under the sixth factor also weighs slightly against confusion. The remaining
DuPont factors are neutral.
On balance, however, the conditions of sale and the conceptual weakness in the
cited mark that weigh against confusion are outweighed by the similarity of the
marks, the relatedness of the services, the overlapping trade channels, and similar
classes of consumers. Accordingly, we find confusion likely with cited Registration
20 14 TTABVUE 8. Applicants misidentify this consideration as the twelfth factor.

Serial No. 98674911
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No. 5902866 (MAINSAIL VACATION RENTALS). See e.g., In re Charger Ventures
LLC, 64 F.4th at 1380 (affirming the Board’s finding that the first, second, and third
Dupont factors outweighed findings of some commercial weakness in the term
SPARK and sophistication of consumers for real estate services).
Decision: The Section 2(d) refusal to register Applicants’ mark MAINSAIL REAL
ESTATE is affirmed.