Isabel Vitale

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: November 17, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Isabel Vitale
Serial No. 97785044
_____
Laurence C. Begin of L.C. Begin & Associates,
for Isabel Vitale.
Christopher Renneker, Examining Attorney, Law Office 118,
Myriah Habeeb, Managing Attorney.
_____
Before Larkin, Cohen and Casagrande,
Administrative Trademark Judges.
Opinion by Cohen, Administrative Trademark Judge:
Applicant Isabel Vitale seeks registration on the Principal Register of the
standard character mark SIVCARE for “non-medicated skin care preparations,
namely, serums, emollients, creams, gels, cleansers, washes, and soap bars,” in
International Class 3.1
The Trademark Examining Attorney finally refused registration of the mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
1 Application Serial No. 97785044 (the “Application”) was filed on February 7, 2023, under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on an allegation of bona fide
intent to use the mark in commerce.

Serial No. 97785044
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Applicant’s mark, when used on or in connection with the identified goods, so
resembles the mark SEVCARE (in standard characters), registered on the Principal
Register for “facial toner spray” in International Class 3, as to be likely to cause
confusion, mistake or deception.2
When the refusal was made final, Applicant requested reconsideration. After the
Examining Attorney denied the request for reconsideration, Applicant appealed. The
appeal is now fully briefed. We affirm the refusal to register.
I. Likelihood of Confusion
“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] mistake, or to deceive.” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). Our determination
of the likelihood of confusion under Section 2(d) of the Trademark Act 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”); Charger Ventures, 64 F.4th at 1379. 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 any likelihood of confusion analysis, different DuPont factors may play a
dominant role and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1116 (Fed. Cir. 2024) (citing Tiger Lily Ventures Ltd. v. Barclays Cap.
2 Reg. No. 6650673 (the “Cited Registration”) issued on February 22, 2022.

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Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be
assigned to each relevant factor depending on the evidence presented, and “any one
of the factors may control a particular case.” Id.; see also Charger Ventures, 64 F.4th
at 1381. Two key considerations in every likelihood of confusion analysis are the
similarities between the marks and the similarities between the goods. In re
i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017). We discuss the relevant
factors below.
A. Comparing 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
impression.’” Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 WL 6072822, at
*13 (TTAB 2021) (quoting 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.” In re Inn at St.
John’s, No. 87075988, 2018 WL 2734893, at *5 (TTAB 2018) (citing In re Davia, No.
85497617, 2014 WL 2531200, at *2 (TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed.
Cir. 2019).
The issue 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 goods
offered under the respective marks is likely to result. Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012). We keep in mind that consumers

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must depend on their recollection of marks to which they’ve previously been exposed
and that their memories are fallible. See, e.g., In re St. Helena Hosp., 774 F.3d 747,
751 (Fed. Cir. 2014); Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No.
91270181, 2024 WL 1638376, at *5 (TTAB 2024).
Applicant argues that her SIVCARE mark “differs phonetically and also textually
from SEVCARE”;3 and that “SIVCARE simply looks different, sounds different when
pronounced, and therefore provides a distinct commercial impression as compared to
SEVCARE.”4
The Examining Attorney asserts that there is “no correct pronunciation of a
mark”;5 and that the “compared marks could clearly be pronounced the same as the
only difference between the marks is the replacing of the letter ‘e’ in the registered
mark with the letter ‘i’ in the applied for mark.”6 The Examining Attorney also asserts
that both marks contain arbitrary three letters starting with the letter “S” followed
by a vowel and the letter “V” before the wording “CARE”’;7 and that even if the marks
are “pronounced slightly differently, slight differences in the sound of visually similar
marks will not avoid a likelihood of confusion.”8
3 6 TTABVUE 9.
4 Id.
5 8 TTABVUE 4.
6 Id.
7 Id. at 5.
8 Id. at 4.

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The marks SEVCARE and SIVCARE are visually similar because they both
consist of one-word, two-syllable terms that are similar in cadence and structure,
beginning with the letter “S,” followed by a vowel and the letter “V,” and ending with
the word “CARE.” Applicant’s substitution of the letter “I” for the letter “E” as the
second character in her mark is a minor difference that, even if noticed, does little to
distinguish the marks’ appearance. The difference in appearance between SEVCARE
and SIVCARE resulting from the difference in a single letter may be noticed if the
marks are viewed together, but they “must be considered . . . in light of the fallibility
of human memory” and “not on the basis of side-by-side comparison.” St. Helena
Hosp., 774 F.3d at 751 (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs.
Components Corp., 565 F.2d 683, 685 (CCPA 1977)). A consumer with a general
recollection of SEVCARE for facial spray toners who separately sees Applicant’s
SIVCARE mark for other types of skin care products could readily view Applicant’s
mark simply as the mark in the Cited Registration. See, e.g., Neutrogena Corp. v.
Bristol-Myers Co., 410 F.2d 1391, 1393 (CCPA 1969) (“[T]he refined analyses of which
lawyers are capable in taking these marks apart and putting them together are not
likely to occur to the great bulk of the people walking into self-service stores or asking
salesclerks for products of which they may have but dim recollections from having
previously seen or heard one or the other of the involved marks.”). There is nothing
in the record to persuade us that any of the differences argued by Applicant
meaningfully distinguish the appearance of the respective marks.

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As to connotation, there is nothing of record to indicate SIVCARE has any
particular meaning. While there is nothing of record to suggest SIV has any meaning
as applied to the relevant goods, CARE is readily known to mean “upkeep;
maintenance [such as] hair care products”9 or in relation to the relevant goods, skin
care products. Similarly, the commercial impression of the marks, in connection with
the identified goods, are that the goods are skin care type products.
Regarding the sound of the marks, it has long been held that “there is no correct
pronunciation of a trademark that is not a recognized word.” In re Jimenez, 2025 WL
3126703, at *5 (TTAB 2025) (quoting StonCor Grp., Inc. v. Specialty Coatings, Inc.,
759 F.3d 1327, 1331-32 (Fed. Cir. 2014)). Consumers therefore could pronounce a
mark differently than the mark owner intends. See In re Viterra, 671 F.3d 1358, 1367
(Fed. Cir. 2012). We agree with the Examining Attorney that “the compared marks
could clearly be pronounced the same as the only difference between the marks is the
replacing of the letter ‘e’ in the registered mark with the letter ‘i’ in the applied for
mark.”10
In certain circumstances, similarity in sound alone may be sufficient to find the
marks confusingly similar. In re 1st USA Realty Prof’ls, Inc., No. 78553715, 2007 WL
2315610, at *6 (TTAB 2007) (“Similarity in sound alone may be sufficient for a finding
9 AMERICAN HERITAGE DICTIONARY, AHDICTIONARY.COM (accessed November 4, 2025). The
Board may take judicial notice of dictionary definitions retrieved from online sources when
the definitions themselves are derived from dictionaries that exist in printed form. See B.V.D.
Licensing Corp. v. Body Action Design, Inc., 846 F.2d 727, 728 (Fed. Cir. 1988); In re Cordua
Rests. LP, No. 85214191, 2014 WL 1390504, at *2 n.4 (TTAB 2014) aff’d, 823 F.3d 594 (Fed.
Cir. 2016). Accordingly, we take judicial notice of the definition of “care”.
10 8 TTABVUE 4.

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of likelihood of confusion.”) (citing Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 907
(CCPA 1968)). In this case, as discussed above, when we consider the marks in their
entireties, we find not only similarity in sound but also in appearance, and that they
convey the same or similar connotation and commercial impression.
This DuPont factor supports a conclusion that confusion is likely.
B. Similarity or Dissimilarity of the Goods, Consumers and
Channels of Trade
1. Relatedness of the Goods
“The second DuPont factor ‘considers [t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration.’” In re Embiid,
No. 88202890, 2021 WL 2285576, at *10 (TTAB 2021) (quoting In re Detroit Athletic
Co., 903 F.3d 1297, 1306 (Fed. Cir. 2018)). “In analyzing the [goods], the Board
considers [t]he similarity or dissimilarity and nature of the [goods] as described in an
application or registration.” In re OSF Healthcare Sys., No. 88706809, 2023 WL
6140427, at *4 (TTAB 2023) (quoting Embiid, 2021 WL 2285576, at *10). The
“Examining Attorney need not prove, and we need not find, similarity as to each
product listed in the description of goods” to affirm the refusal. In re St. Julian Wine
Co., No. 87834973, 2020 WL 2788005, at *5 (TTAB 2020). “[I]t is sufficient for finding
a likelihood of confusion if relatedness is established for any item encompassed by
the identification of goods within a particular class in the application.” In re
Aquamar, Inc., No. 85861533, 2015 WL 4269973, at *4 n.5 (TTAB 2015). It is “not
necessary that the goods be similar or even competitive to support a finding of a
likelihood of confusion.” Coach Servs., 668 F.3d at 1369 (quoting 7-Eleven, Inc. v.

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Wechsler, No. 91117739, 2007 WL 1431084, at *10 (TTAB 2007)). “[L]ikelihood of
confusion can be found ‘if the respective goods are 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.
One way to show that consumers perceive goods as related (in the trademark
sense) is to show that other companies offer both the goods identified in an application
and those identified in a cited registration under the same mark. See, e.g., Naterra
Int’l, 92 F.4th at 1117; Detroit Athletic, 903 F.3d at 1306; Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002). To support the argument
that the goods are related, the Examining Attorney submitted evidence of third-party
websites offering the goods identified in the Application and Cited Registration under
the same marks, including OSEA;11 NUXE;12 MARIO BADESCU;13 and BEEKMAN
1802.14 The Examining Attorney also submitted evidence of third-party websites
selling the goods identified in the Application and Cited Registration in the same
sections of those websites, including ULTA.COM;15 and SEPHORA.COM.16 See Hewlett-
Packard, 281 F.3d at 1267 (evidence that “a single company sells the goods and
services of both parties, if presented, is relevant to a relatedness analysis”).
11 November 7, 2023 Office Action at TSDR 29-35.
12 May 23, 2024 Final Office Action at TSDR 7-25.
13 Id. at 44-62.
14 Id. at 64-82.
15 November 7, 2023 Office Action at TSDR 7-18, 26.
16 Id. at 47-51.

Serial No. 97785044
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Applicant attempts to distinguish her goods by asserting that her consumers are
“sophisticated and can quickly discern that our SIVCARE products are superior to
the other competitive products that are being sold”;17 and that the goods serve
different purposes,18 relying on a declaration from Applicant and a blog comment
from Jackie Cosenzi, who describes herself as a “[f]ormer Makeup/Skincare Specialist
at LVMH.”19 The asserted differences, however, are not reflected in the identifications
of goods. As noted, we compare the goods as they are identified in the Application and
Cited Registration. See S.W. Mgmt., Inc. v. Ocinomled, Ltd., No. 94002242, 2015 WL
4464550, at *17 (TTAB 2015) (where the goods in an application or registration are
broadly described, they are deemed to encompass all the goods of the nature and type
described therein), aff’d mem., 652 F. App’x 971 (Fed. Cir. 2016); Paula Payne Prods.
17 November 25, 2024 Request for Reconsideration at TSDR 8, ¶3.
Applicant also testifies that she visited “multiple retail stores … in several states outside of
Michigan” but has not seen any SEVCARE products nor any online presence. Id. at 8-9, ¶¶6,
8.
18 May 6, 2023 Response to Office Action at TSDR 4 (“[T]he applicant’s goods are not closely
related to SEVCARE’s goods, because the function and application differ greatly.”).
19 May 6, 2024 Response to Office Action at TSDR 7.
While Applicant characterizes the statements made by Jackie Cosenzi as “testimony,” 6
TTABVUE 7, the statements made by Ms. Cosenzi are not made under oath and appear to
be simply a blog comment. While Internet materials are admissible in ex parte proceedings,
they are not admissible for the truth of the matters asserted therein. See In re I-Coat Co.,
LLC, No. 86802467, 2018 WL 2753196, at *6 (TTAB 2018) (accepting internet printouts only
for what they show on their face); see also In re Geller, 751 F.3d 1355, 1360 (Fed. Cir.
2014) (the Board, in noting that “the probative value of the blog comments ... is less than that
of the articles themselves due to the anonymity of the authors,” did not err in concluding that
such comments shed light on the meaning of the term “Islamisation”); In re Wal-Mart Stores,
Inc., No. 86261962, 2019 WL 193990, at *10 (TTAB 2019) (information from the Internet,
websites and blog posts is admissible “as evidence of information available to the consuming
public and of the way in which a term is being used or would be understood by the relevant
public”).

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Co. v. Johnson Publ’g Co., 473 F.2d 901, 902 (CCPA 1973) (Board must “give full
sweep” to an identification of goods or services regardless of registrant’s actual
business).
Here, contrary to Applicant’s assertions, the evidence shows that Applicant’s
products and Registrant’s facial toner spray share a similar purpose for consumers
as personal skin care products. Again, “likelihood of confusion can be found ‘if the
respective goods are 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.”’ Coach Servs., 668 F.3d at 1369 (quoting 7-Eleven,
2007 WL 1431084, at *10). We find the marketplace evidence detailed above
persuasive to show that consumers encounter skin care products such as those
identified in the Application coming from the same sources as facial toner sprays such
as Registrant has identified, or reasonably expect those goods to emanate from the
same source. See, e.g., Detroit Athletic, 903 F.3d at 1306 (crediting relatedness
evidence that third parties use the same mark for the goods and services at issue
because “[t]his evidence suggests that consumers are accustomed to seeing a single
mark associated with a source that sells both”); Hewlett-Packard, 281 F.3d at 1267
(evidence that “a single company sells the goods and services of both parties, if
presented, is relevant to a relatedness analysis”).
Applicant’s assertions that consumers can distinguish between serums and facial
toners20 asks the wrong question. As our primary reviewing Court’s predecessor said
20 6 TTABVUE 10-11.

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in Hydra Mac, Inc. v. Mack Trucks, Inc., 507 F.2d 1399 (CCPA 1975), “the confusion
found to be likely is not as to the products but as to their source. Here the goods of
the parties are such as might reasonably be expected to emanate from the same
source.” Id. at 1400 (citation omitted); see also Mishawaka Rubber & W. Mfg. Co. v.
Bata Narodni Podnik, 222 F.2d 279, 287 (CCPA 1955) (“In determining whether there
is likelihood of confusion, one is not concerned merely with confusion in goods; the
question is whether goods are of a nature which purchasers might reasonably assume
to come from same source.”).
Moreover, the goods identified in the Application originally included “non-
medicated skin care preparations, namely … sprays.”21 Applicant’s inclusion of
“sprays” in her original identification of goods corroborates the third-party website
evidence that Applicant’s and Registrant’s goods can come from a single source. See
Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937, 941 (Fed. Cir. 1990) (on
the issue of the relatedness of the applicant’s “modems” and the opposer’s “computer
programs,” the fact “that such goods might come from a single source is shown by
[applicant’s] original application, which indicates [applicant] itself used the mark
OCTOCOM for both modems and computer programs.”); In re HerbalScience Grp.,
LLC, No. 77519313, 2010 WL 5651672, at *3 (TTAB 2010) (the applicant’s concession
that its identified goods and those of the registrant can emanate from a single source
under a single mark was supported by the fact that “applicant originally included
nutritional supplements and dietary supplements in its identification of goods.”).
21 February 7, 2023 Application at TSDR 1.

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Based on the evidence of record, we find Applicant’s goods are related to
Registrant’s goods and thus, this factor weighs in favor of a conclusion of likelihood
of confusion.
2. Trade Channels, Consumers and Purchase Conditions
The third DuPont factor considers “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels” and the fourth factor addresses “[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. As with the comparison of the
goods, we base our comparison of the trade channels and customers on what is set
forth in the Application and Cited Registration. See, e.g., i.am.symbolic, 866 F.3d at
1325.
Applicant argues that the trade channels and consumers are different because her
goods are “substantially provide[d] … to wholesalers through those wholesale trade
channels” and this “distinguishes the types of consumers we typically deal with in
contrast to the retail customers that SEVCARE purportedly deals with.”22 These
arguments are unavailing.
The Application contains no such restriction. “The description of the goods in the
application for registration is critical because any registration that issues will carry
that description. Moreover, although a registrant’s current business practices may be
quite narrow, they may change at any time from, for example, industrial sales to
individual consumer sales.” CBS Inc. v. Morrow, 708 F.2d 1579, 1581 (Fed. Cir. 1983)
22 November 25, 2024 Request for Reconsideration at TSDR 9, ¶9.

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(citation omitted), quoted in Can. Imperial Bank of Com. v. Wells Fargo Bank, Nat’l
Ass’n, 811 F.2d 1490, 1492-93 (Fed. Cir. 1987). Applicant thus may not restrict the
scope of the unrestricted goods covered in her Application or the Cited Registration
by argument or by extrinsic evidence about her current means of distribution. Stone
Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (“It
was proper, however, for the Board to focus on the application and registrations
rather than on real-world conditions ….”); Octocom, 918 F.2d at 942 (“The authority
is legion that the question of registrability of an applicant’s mark must be decided on
the basis of the identification of goods set forth in the application regardless of what
the record may reveal as to the particular nature of an applicant’s goods, the
particular channels of trade or the class of purchasers to which the sales of goods are
directed.”). When, as in this case, the involved identifications do not limit how the
goods are sold or to whom, we presume that they are sold “in all normal trade
channels to all the normal classes of purchasers.” Detroit Athletic, 903 F.3d at 1308.
The Examining Attorney’s evidence of third-party use discussed above
demonstrating that the skin care products identified in the Application and the spray
toners identified in the Cited Registration are related also demonstrates that those
goods are advertised on the same third-party websites to the same consumers. See,
e.g., Hewlett-Packard, 281 F.3d at 1267 (evidence that “a single company sells the
goods and services of both parties, if presented, is relevant to a relatedness analysis”);
Embiid, 2021 WL 2285576, at *15 (Board found “channels of trade and classes of
customers plainly overlap” where record demonstrated relevant goods sold together

Serial No. 97785044
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on third-party websites and offered and registered under a single mark by numerous
businesses). This evidence shows that the trade channels and customers for the goods
in the Application and Cited Registration overlap to at least some degree.
Applicant asserts that her consumers are “very sophisticated.”23 However, the
Applications and Cited Registration identify goods that are not restricted by target
market, price, or any other manner that might suggest higher than normal consumer
sophistication. While we can infer from the identifications and the nature of
Applicant’s and Registrant’s goods that potential consumers may include
sophisticated as well as unsophisticated consumers, “[p]recedent requires that we
base our decision on the least sophisticated potential purchasers.” Stone Lion, 746
F.3d at 1325; see I-Coat, 2018 WL 2753196, at *11; S.W. Mgmt., 2015 WL 4464550,
at *17 (where the goods in an application or registration are broadly described, they
are deemed to encompass all the goods of the nature and type described therein);
Estée Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) (“arguments of
counsel cannot take the place of evidence lacking in the record”) (citation omitted).
The overlap in classes of customers and trade channels both weigh in favor of a
conclusion of likelihood of confusion. Consumer sophistication is neutral.
C. Other Factors
In addition to the DuPont factors discussed above, Applicant briefly mentions the
fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth factors24
23 Id. at 8, ¶3.
24 6 TTABVUE 14-18.

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and so, we also address them briefly.
Applicant argues that “there simply is no apparent fame of the registered mark
SEVCARE”25 under the fifth DuPont factor.26 In ex parte trademark examination, we
do not expect examining attorneys to develop evidence of the commercial strength of
marks in cited registrations, so this factor is treated as neutral. See, e.g., In re
Integrated Embedded, No. 86140341, 2016 WL 7368696, at *9 (TTAB 2016); In re
i.am.symbolic, llc, No. 85044494, 2015 WL 6746543, at *8 (TTAB 2015), aff’d, 866
F.3d 1315, 1330 (Fed. Cir. 2017). Under the sixth DuPont factor,27 Applicant argues
that she is only aware of the Cited Registration,28 but submits no evidence of any
third-party use or registration of the mark SEVCARE. This factor therefore is neutral
as well. Further, because the Cited Registration is “prima facie evidence of the
validity of the registered mark,” see Section 7(b) of the Trademark Act, 15 U.S.C. §
1057(b), we afford the Cited Registration “the normal scope of protection to which
inherently distinctive marks are entitled.” Bell’s Brewery, Inc. v. Innovation Brewing,
No. 91215896, 2017 WL 6525233, at *9 (TTAB 2017).
25 Id. at 14.
26 The fifth DuPont factor considers “[t]he fame of the prior mark (sales, advertising, length
of use).” DuPont, 476 F.2d at 1361. As is normally the case in ex parte proceedings and as is
the case here, the record generally includes no evidence as to fame particularly since the
owner of the cited registration is not a party to the proceeding and thus cannot introduce
evidence regarding its use of the cited registered mark. See In re Thomas, No. 78334625, 2006
WL 1258862, at *8 n.11 (TTAB 2006).
27 The sixth DuPont factor considers “[t]he number and nature of similar marks in use on
similar goods.” DuPont, 476 F.2d at 1361.
28 6 TTABVUE 14.

Serial No. 97785044
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As to the seventh and eighth DuPont factors,29 Applicant argues that she is
unaware of any actual confusion and that she has filed the Application based on an
intent to use and thus “is not generally aware of concurrent use of the marks without
any evidence of actual confusion.”30 Under the ninth,31 tenth,32 and eleventh33 DuPont
factors, Applicant argues that the Application was filed based on an allegation of
intent to use suggesting that these factors are irrelevant in this case.34 See, e.g.,
Monster Energy Co. v. Lo, No. 91225050, 2023 WL 417620, at *18-23 (TTAB 2023); In
re Davey Prods. Pty, No. 77029776, 2009 WL 2420527, at *8 (TTAB 2009). As to the
twelfth35 DuPont factor, Applicant argues “there simply is no likelihood of potential
29 The seventh and eighth DuPont factors relate, respectively, to the nature and extent of any
actual confusion and the extent of the opportunity for actual confusion. See DuPont, 476 F.2d
at 1361.
30 6 TTABVUE 14-15.
31 The ninth DuPont factor considers “the variety of goods and services on which a mark is or
is not used (house mark, ‘family’ mark, product mark).” DuPont, 476 F.2d at 1361.
32 The tenth DuPont factor considers “[t]he market interface between applicant and the owner
of a prior mark[.]” DuPont, 476 F.2d at 1361.
Applicant also argues that SEVCARE has “no apparent market presence … and therefore,
there simply is no market interface of the applicant.” 6 TTABVUE 15. It appears that
Applicant misunderstands the nature of this DuPont factor regarding market interface,
which is intended to examine whether there is evidence bearing on the likelihood of confusion
involving the applicant and the registrant, such as whether there is an agreement, such as a
consent, that evinces their business-driven conclusion and belief that there is no likelihood
of confusion. In re Opus One, Inc., No. 75722593, 2001 WL 1182924, at *11 (TTAB 2001).
Here, there is no evidence of record concerning any agreement between the parties which
may be indicative of a lack of confusion, nor anything else we can discern bearing on this
factor.
33 The eleventh DuPont factor considers the “extent to which applicant has a right to exclude
others.” DuPont, 476 F.2d at 1361.
34 6 TTABVUE 15.
35 The twelfth DuPont factor considers “[t]he extent of potential confusion, i.e., whether de
minimis or substantial.” DuPont, 476 F.2d at 1361.

Serial No. 97785044
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confusion” reiterating arguments we have already considered and addressed;36 and
under the thirteenth37 DuPont factor, Applicant merely lists the factor without any
arguments asserted.
Applicant’s arguments are unpersuasive and are unsupported by probative
evidence; we therefore find these factors neutral. See Estée Lauder, 129 F.3d at 595
(“[A]rguments of counsel cannot take the place of evidence lacking in the record.”)
(citation omitted); Heil Co. v. Tripleye GmbH, No. 91277359, 2024 WL 4925901, at
*37 (TTAB 2024) (holding that the Board did not need to consider four DuPont factors
where the parties presented no evidence regarding them).
II. Conclusion
Having considered all of the arguments and evidence of record, we now turn to
weighing together our findings on the relevant likelihood of confusion factors. The
substitution of the letter “I” for the letter “E” as the second character in Applicant’s
mark is a minor difference that causes the first factor to weigh in favor of a conclusion
of a likelihood of confusion. The respective goods are plainly related. These together
comprise what has been called “the fundamental inquiry” in a Section 2(d) analysis,
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976),
and they weigh strongly in favor of a conclusion that confusion is likely. We also find
that the overlap, at least to some degree, in channels of trade and classes of consumer
36 6 TTABVUE 16.
37 The thirteenth DuPont factor allows us to consider any other established fact probative of
the effect of use. DuPont, 476 F.2d at 1361.

Serial No. 97785044
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cause the second and third factors to weigh in favor of a conclusion of likelihood of
confusion. We find that the fifth through thirteenth factors are neutral.
All factors either weigh in favor of a likelihood of confusion or are neutral. On
balance, we conclude there is a likelihood of confusion.
Decision: The refusal to register Applicant’s mark under Trademark Act Section 2(d)
is affirmed.