Columbia Insurance Company

This Opinion is Not a
Precedent of the TTAB
Mailed: January 23, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Columbia Insurance Company
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Serial No. 98477268
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David Chen and John Keller of IP Attorneys Group, LLC for Columbia Insurance
Company.
Cayla Keenan, Trademark Examining Attorney, Law Office 122,
Kristin Dahling, Managing Attorney.
_____
Before Larkin, English, and Thurmon,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
Columbia Insurance Company (“Applicant”) seeks registration on the Principal
Register of the standard-character mark HYPERLYT for the following goods in
International Class 25:
Footwear; clothing, namely, belts, socks, bottoms, jeans,
tops, skirts, hosiery, scarves, dresses, gloves, jackets,
neckwear, nightwear, pants, suits, swimwear, underwear,
headwear, uniforms, shirts, sweatshirts, sweatpants,
shorts, sweaters, coats, wristbands, t-shirts, knit t-shirts,

Serial No. 98477268
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woven shirts, polo shirts, 1/4 zip tops, vests, hats, caps
being headwear, and pullovers.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark so resembles the marks HYPER LITE in standard characters for
“wet suits, and sportswear; namely, T-shirts, hats, sweat shirts, volley shorts, and
gloves” in International Class 25 and HYPERLITE in standard characters for “wet
suits for above-the-water sports; wakeboard boots; sportswear, namely, jackets,
shirts, t-shirts, sweatshirts, polo shirts, hats” in International Class 25,2 as to be
likely, when used in connection with the goods identified in the application, to cause
confusion.3
When the Examining Attorney made the refusal final, Applicant appealed and
simultaneously requested reconsideration, which was denied. The case is fully
briefed.4 We affirm the refusal to register.
1 Application Serial No. 98477268 was filed on April 1, 2024 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intention to
use the mark in commerce.
2 The cited Registration No. 1987363 of HYPER LITE issued on July 16, 1996 and has been
renewed and the cited Registration No. 3336282 of HYPERLITE issued on November 13,
2007 and has been renewed. The registrations have a common owner.
3 As discussed below, the Examining Attorney also issued a final refusal to register
Applicant’s mark based on Registration No. 5273867 of the mark HYPERLITE in standard
characters for “backpacks; duffel bags; tote bags; stuff sacks, namely, waterproof dry bags
and sacks to carry gear for hiking, camping, and mountaineering” in International Class 18,
but withdrew that refusal in the course of denying Applicant’s Request for Reconsideration
of the final refusal.
4 Citations in this opinion to the briefs 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

Serial No. 98477268
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I. Prosecution History and Record on Appeal5
We briefly summarize below the prosecution history of the application because it
provides useful background for our disposition of the appeal.
Applicant originally applied to register its mark for goods identified simply as
“footwear” and “clothing.”6 The Examining Attorney issued an Office Action refusing
registration under Section 2(d) and requiring Applicant to amend its identification of
goods to specify the types of “clothing” for which it sought registration.7 The
Examining Attorney made of record USPTO electronic records regarding the three
cited registrations,8 and USPTO electronic records regarding third-party
registrations of marks for clothing, footwear, and sportswear.9
Applicant responded to the Office Action by amending its identification of goods
to the one set forth above and arguing against the Section 2(d) refusal.10 The
Examining Attorney then issued an Office Action accepting Applicant’s amendment
to its identification of goods, and making final the Section 2(d) refusal as to all three
cited registrations.11 The Examining Attorney made of record third-party webpages
materials appear. Applicant’s appeal brief appears at 6 TTABVUE and its reply brief appears
at 9 TTABVUE. The Examining Attorney’s brief appears at 8 TTABVUE.
5 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” or “Office”).
6 April 1, 2024 Application at TSDR 1.
7 October 16, 2024 Office Action at TSDR 2-6.
8 Id. at TSDR 8-13.
9 Id. at TSDR 14-58.
10 January 3, 2025 Response to Office Action at TSDR 3, 5-14.
11 February 23, 2025 Final Office Action at TSDR 2-7.

Serial No. 98477268
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that she claimed showed that “clothing, footwear, and sportswear, including wetsuits,
are of a kind that may emanate from a single source under a single mark.”12
Applicant appealed and simultaneously requested reconsideration. In its Request
for Reconsideration, Applicant made of record plain copies of the certificates of
registration of, and USPTO electronic records regarding, third-party marks that
Applicant claimed showed that the “USPTO has established a clear precedent
permitting the coexistence of trademarks containing the element ‘LYT’ and ‘LITE’
under different owners in Class 025 and Class 018,” as well as the coexistence on the
Register of ELYT and ELITE marks.13
In response to Applicant’s Request for Reconsideration, the Examining Attorney
withdrew the Section 2(d) refusal based on Registration No. 5273867 of HYPERLITE
for various goods in Class 18,14 but maintained and continued the refusals based on
Registration Nos. 1987363 and 3336282.15 The appeal was resumed, 5 TTABVUE,
and is now ready for decision.
12 Id. at TSDR 5, 10-127.
13 April 22, 2025 Request for Reconsideration at TSDR 6-8, 13-31.
14 May 28, 2025 Denial of Request for Reconsideration at TSDR 1. On appeal, both Applicant
and the Examining Attorney overlooked or disregarded the withdrawal of the refusal based
on Registration No. 5273867, as they both discussed that registration. 6 TTABVUE 6, 14, 18-
20, 23; 8 TTABVUE 2-3; 9 TTABVUE 5, 9. Because the Examining Attorney withdrew the
final refusal based on Registration No. 5273867, we have given that registration no
consideration.
15 May 28, 2025 Denial of Request for Reconsideration at TSDR 1-2.

Serial No. 98477268
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II. Analysis of Likelihood of Confusion Refusal
“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. DuPont DeNemours & 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).
“Two key factors in every Section 2(d) case are the first two factors regarding the
similarity or dissimilarity of the marks and the goods or services, because the
fundamental inquiry mandated by §2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks.” DC Comics
v. Cellular Nerd LLC, Opp. No. 91246950, 2022 WL 17832492, at *10 (TTAB 2022)
(internal quotations and quotation marks omitted).
Applicant discusses these two key factors in its appeal brief, 6 TTABVUE 11-14,
21-23, and also discusses the third DuPont factor, the “similarity or dissimilarity of
established, likely-to-continue trade channels,” DuPont, 476 F.2d at 1361, 6
TTABVUE 14-17, the co-existence of the cited marks inter se, and the “Office’s
treatment of similar trademarks,” which Applicant claims “has established a clear

Serial No. 98477268
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precedent permitting the coexistence of trademarks featuring the formative elements
‘LYT’ and ‘LITE’ under different owners in Classes 025 and 018.” Id. at 17-21.16
We will focus our Section 2(d) analysis on the HYPERLITE mark for “wet suits
for above-the-water sports; wakeboard boots; sportswear, namely, jackets, shirts, t-
shirts, sweatshirts, polo shirts, hats” shown in cited Registration No. 3336282 (the
“’282 Registration”). If we find a likelihood of confusion as to that mark and the goods
for which it is registered, we need not find it as to the cited HYPER LITE mark and
the goods for which it is registered. In re Max Cap. Grp. Ltd., Ser. No. 77186166, 2010
WL 22358, at *2 (TTAB 2010).
A. Similarity or Dissimilarity of the Goods, Channels of Trade, and
Classes of Consumers
We begin with the second and third DuPont factors. The second factor “considers
‘[t]he similarity or dissimilarity and nature of the goods or services as described in an
application or registration . . . .” In re Detroit Athletic Co., 903 F.3d 1297, 1306 (Fed.
Cir. 2018). “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)
16 Applicant states in its appeal brief that “[t]he evidence and arguments presented in
Applicant’s previous Responses to the Office Actions issued in this Application are
incorporated herein by reference.” 6 TTABVUE 10. The evidence presented by Applicant
during prosecution is part of the record on appeal, but prior to the filing of Applicant’s brief,
the Board held that “such incorporation-by-reference statements are inadequate to present
on appeal whatever arguments an applicant may thereby be contemplating . . . .” In re
Princeton Equity Grp. LLC, Ser. No. 97399712, 2025 WL 1638891, at *3 (TTAB 2025).
“Parties whose briefs purport to incorporate by reference arguments made during prosecution
will be held to have failed thereby to present whatever arguments the incorporation
statement purports to cover to the Board and will be deemed to have forfeited them.” Id. We
have considered only those arguments actually made in Applicant’s briefs.

Serial No. 98477268
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(quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267 (Fed. Cir.
2002)). “In analyzing the [goods or] services, the Board considers ‘[t]he similarity or
dissimilarity and nature of the [goods or] services as described in an application or
registration.’” In re OSF Healthcare Sys., Ser. No. 88706809, 2023 WL 6140427, at *4
(TTAB 2023) (quoting In re Embiid, Ser. No. 88202890, 2021 WL 2285576, at *10
(TTAB 2021)).
The goods “‘need not be identical or even competitive to find a likelihood of
confusion.’” Id. (quoting In re Country Oven, Inc., Ser. No. 87354443, 2019 WL
6170483, at *2 (TTAB 2019)).17 “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., Inc. v. Triumph Learning LLC,
668 F.3d 1356, 1369 (Fed. Cir 2012) (internal quotation omitted)).
The relatedness of goods or services may be established based on (1) the language
of the involved identifications of goods or services, which may show, on the face of the
identifications, that the goods or services are literally or legally identical, or otherwise
intrinsically related, and (2) evidence of third-party uses or registrations, which may
show that the identified goods or services are commonly offered by the same entity
under the same mark. See, e.g., OSF Healthcare, 2023 WL 6140427, at *4.
17 The “Examining Attorney need not prove, and we need not find, similarity as to each [good]
listed in the description of [goods]” in Class 25 in the application. OSF Healthcare, 2023 WL
6140427, at *5 (citation omitted). “‘[I]t is sufficient for finding a likelihood of confusion if
relatedness is established for any [good] encompassed by the identification of [goods] within
a particular class in the application.” Id. (citations omitted).

Serial No. 98477268
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Applicant argues that its “goods are neither identical nor overlapping with the
Cited Marks’ goods.” 6 TTABVUE 13. According to Applicant, its “HYPERLYT
trademark covers general clothing and footwear in Class 025, such as jeans, socks,
and belts,” while the “HYPER LITE and HYPERLITE trademarks in Class 025 relate
specifically to wet suits and sportswear for water-based and other high-intensity
sports activities . . . .” Id. at 14. Applicant concludes that “[t]hese distinctions are
significant because the consumers of Applicant’s goods would have little to no overlap
with those seeking specialized sportswear or sports accessories, decreasing any
likelihood for potential consumer confusion.” Id.
The Examining Attorney responds that the goods identified in the application and
in the cited registration are intrinsically related based on the language of the
identifications, and are also related on the basis of evidence of third-party use of the
same mark on the involved goods. 8 TTABVUE 5-6.18 The Examining Attorney argues
that Applicant and the owner of the HYPER LITE and HYPERLITE registrations
“provide identical goods, ‘t-shirts; hats; gloves; jackets; shirts; sweatshirts; polo
shirts’.” Id. at 5 (emphasis in bold here in italics in the original). The Examining
Attorney further argues that “the goods of the parties are not so limited to ‘water
sports’ but rather include broadly defined clothing items such as footwear, jeans, and
general swimwear as well as sportswear such as polo shirts,” and that “[n]either
18 The Examining Attorney also cites prior cases in which the Board “has found many
different types of apparel to be related.” 8 TTABVUE 5. The Board has “not[ed]
the limited utility of reliance, in lieu of supporting evidence, on past decisions in which the
Board has or has not found various clothing items to be related,” Embiid, 2021 WL 2285576,
at *12, but the Examining Attorney also provided supporting evidence, as well as arguments
based on the language of the identifications.

Serial No. 98477268
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applicant nor registrants restrict their identifications to ‘water sports’ markets.” Id.
at 7.
In its reply brief, Applicant again argues that its “identification of goods is limited
to everyday footwear and clothing items,” while the “Cited Marks cover specialized
sportswear and sports accessories.” 9 TTABVUE 7.
The ’282 Registration covers goods identified as “wet suits for above-the-water
sports; wakeboard boots; sportswear, namely, jackets, shirts, t-shirts, sweatshirts,
polo shirts, hats.” Applicant’s argument that these goods all “relate specifically to wet
suits and sportswear for water-based and other high-intensity sports activities,” 6
TTABVUE 14, is meritless. The goods identified as “sportswear, namely, jackets,
shirts, t-shirts, sweatshirts, polo shirts, hats” are distinct from the other goods
identified as “wet suits for above-the-water sports” and “wakeboard boots” because
the “sportswear” goods are separated from the other goods by a semicolon. See
Monster Energy Co. v. Lo, Opp. No. 91225050, 2023 WL 417620, at *7 n.35 (TTAB
2023); TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) Section 1402.01(a)
(Nov. 2025) (“Semicolons should generally be used to separate distinct categories of
goods or services within a single class”); In re Midwest Gaming & Entm’t LLC, Ser.
No. 85111552, 2013 WL 14422357, at *4 (TTAB 2013) (because a semicolon separated
the two relevant clauses in the registrant’s identification of services, its “‘restaurant
and bar services’ is a discrete category of services that stands alone and
independently as a basis for likelihood-of-confusion analysis, and is not connected to
nor dependent on the services set out on the other side of the semicolon.”). Because

Serial No. 98477268
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the goods identified after the preamble “sportswear, namely” are distinct goods from
the water sports-related goods, the various items of “sportswear” provide an
independent basis for the refusal to register. Id.
Applicant’s application covers goods identified as “jackets,” “shirts,” “t-shirts,”
“sweatshirts,” “polo shirts,” and “ hats.” These goods are identical to the “jackets,
shirts, t-shirts, sweatshirts, polo shirts, hats” identified in the ’282 Registration.
Applicant’s argument that its “identification of goods is limited to everyday footwear
and clothing,” while the “Cited Marks cover specialized sportswear and sports
accessories,” 9 TTABVUE 7, is also meritless.
The Board may take judicial notice of dictionary definitions, including definitions
from online dictionaries that exist in printed format or have fixed regular editions.
See, e.g., In re Nursecon, LLC, Ser. No. 88052194, 2024 WL 5265079, at *10 n.64
(TTAB 2024) (citation omitted). We take judicial notice that the word “sportswear” in
the identification of goods in the ’282 Registration means both “clothing designed for
casual or informal wear” and “clothing designed to be worn for sports or fitness
training.” MERRIAM-WEBSTER DICTIONARY (merriam-webster.com, last accessed on
January 21, 2026). Accordingly, we must deem the items of “sportswear” identified in
the ’282 Registration to encompass what Applicant calls “everyday” clothing. Sage
Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, Opp. No. 91270181, 2024 WL
1638376, at *7 (TTAB 2024) (“‘If an application or registration describes goods or
services broadly, and there is no limitation as to their nature, it is presumed that the
‘registration encompasses all goods or services of the type described’”) (quoting

Serial No. 98477268
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Monster Energy, 2023 WL 417620, at *7 (quoting Levi Strauss & Co. v. Abercrombie
& Fitch Trading Co., 719 F.3d 1367, 1373 (Fed. Cir. 2012))).
But even if the items of “sportswear” identified in the ’282 Registration were
limited to what Applicant calls “specialized sportswear,” the corresponding goods
identified in the application are not limited to what Applicant calls “ everyday”
clothing, and they must be deemed to encompass “specialized sportswear.” Id.
Because the goods identified in the application and the goods identified in the ’282
Registration are identical in part, the second DuPont factor strongly supports a
conclusion that confusion is likely. OSF Healthcare, 2023 WL 6140427, at *9.19
The third DuPont factor considers the “similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. The goods are identical
in part, and there are no restrictions in the involved identifications regarding their
channels of trade or classes of consumers, and “it is well established that, ‘absent
restrictions in the application and registration, [identical] goods and services are
presumed to travel in the same channels of trade to the same class of purchasers.’” In
re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (quoting Hewlett-Packard, 281
F.3d at 1268). We may “rely on this legal presumption in determining likelihood of
confusion.” Id. The third DuPont factor also strongly supports a conclusion that
confusion is likely.
19 Because the goods are identical in part, “there is no need for us to further consider the
relatedness of the goods” based on the Examining Attorney’s evidence of third-party use of
the same mark for the involved goods. In re FabFitFun, Inc., Ser. No. 86847381, 2018 WL
4043156, at *2 (TTAB 2018).

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B. 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, Ser. No. 87075988, 2018 WL 2734893, at *5
(TTAB 2018) (citation omitted), 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., 668 F.3d at 1368). “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, Ser. No. 85916778, 2018 WL 3993582, at *4 (TTAB
2018) (citations omitted)). Articles of clothing such as the “sweatshirts,” “shirts,” and
“t-shirts” identified in the application “are purchased or used in some form
by virtually everyone,” Embiid, 2021 WL 2285576, at *15, and the average consumer
here is a member of the general public. Id. at *4.

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The marks here are HYPERLITE and HYPERLYT, both in standard characters.
According to Applicant, “the Examining Attorney’s arguments rely largely on the
incorrect assumption that the term ‘LYT’ is equivalent to the terms ‘LITE’ and
‘LIGHT,’ despite significant differences in appearance, sound, connotation, and
commercial impression.” 6 TTABVUE 21. Applicant focuses primarily on claimed
differences in sound and the purported differences in commercial impression that
result from the claimed differences in sound. Id. at 21-23. Applicant argues that
[t]he term “LYT” is not a commonly recognized English
word, but rather a coined term. Therefore, English
speakers instinctively rely on well-established
pronunciation rules when encountering such unfamiliar
words. English speakers often associate “YT” endings with
a short “I” sound, akin to words like “CRYPT” or “MYTH.”
Moreover, in this case, the ending “LYT” closely resembles
the widely recognized phonetic pattern of “LIT” (meaning
illuminated or the vernacular expression for exciting). In
contrast, consumers are accustomed to encountering
“LITE” in brand names (e.g., MILLER LITE, LITE-BRITE)
and pronouncing the term as “LIGHT.” Applicant’s Mark,
however, omits this conventional spelling, making it very
unlikely that “LYT” would be pronounced as or associated
with “LITE” without explicit guidance.
Id. at 21-22.
Applicant further argues that
[t]he way a trademark is pronounced directly affects how
consumers recall and associate it with products or services.
In terms of commercial impression, the pronunciation of
Applicant’s trademark HYPERLYT is sharper with a more
abrupt ending, due to the short “I” sound, resulting in a
punchy, modern feel. In contrast, the cited marks HYPER
LITE and HYPERLITE have a softer, elongated ending due
to the “IGHT” sound, resulting in a more traditional feel.
Because Applicant’s trademark HYPERLYT is
instinctively pronounced as “HYPERLIT,” it connotes a
different meaning than the Cited Marks. Applicant’s Mark

Serial No. 98477268
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evokes ideas of being “LIT,” and feelings of excitement,
which is amplified by the use of the initial term “HYPER.”
Conversely, the term “LITE” appearing in the Cited Marks
is typically understood as a variation of the term “LIGHT”
referring to less weight or less substance. Since “LYT” is a
coined term with no standard dictionary meaning,
Applicant’s Mark does not inherently carry the descriptive
meaning of “LIGHT” which the Cited Marks carry. These
variations in connotation and commercial impression
further differentiate the marks, making it unlikely that
consumers would confuse Applicant’s Mark with the Cited
Mark.
Id. at 22.
The Examining Attorney responds that
the only differences between these marks are the
substitution of an “I” for a “Y”, and the presence or absence
of a space between syllables in the otherwise identical term
“HYPERLYT”. These differences are insignificant; while
they may slightly change the appearance of the marks,
they do not change their sound or meaning at all.
8 TTABVUE 4.
The Examining Attorney further argues that “all of the marks at issue begin with
the term ‘HYPER’” and that the “dominant portion of all of these marks is identical,
contributing to an increased likelihood of confusion;” that “the applied-for and
registered marks are all phonetic equivalents and thus sound similar ;” that “the
compared marks are identical except for a slight difference in spelling, and as a
compound word with no space separating the words;” and that they “are identical in
sound and virtually identical in appearance, and are thus confusingly similar for the
purposes of determining likelihood of confusion.” Id.
The Examining Attorney rejects Applicant’s arguments that the marks are
dissimilar in sound, arguing that “[t]here is no correct pronunciation of a mark; thus,

Serial No. 98477268
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consumers may pronounce a mark differently than intended by the mark owner,” and
that “even if the marks were not exact phonetic equivalents, they are still sufficiently
similar in order to cause confusion” because “the first element of the applied-for and
registered marks, the term ‘HYPER’, is identical” and “[e]ven if pronounced slightly
differently, the terms ‘LYT’ and ‘LITE’ may both indicate light.” Id. at 8. The
Examining Attorney concludes that “the differences in these terms do not create a
distinct commercial impression necessary to obviate a likelihood of confusion.” Id.
In its reply brief, Applicant again focuses primarily on claimed phonetic
dissimilarity:
Applicant demonstrated that “LYT” is a coined term that
English speakers will pronounce according to established
rules for “YT” endings (e.g., “CRYPT” = “KRIPT”; “MYTH”
= “MITH”). . . . Moreover, the omission of the final “E”
causes “LYT” to resemble “LIT” rather than “LITE” both
visually and phonetically as there is no “E” present, further
reinforcing that consumers will perceive Applicant’s Mark
as “LIT” and not as “LITE.” These differences in
appearance and sound yield distinct meanings and
commercial impressions – Applicant’s Mark is arbitrary,
evoking the modern slang sense of being “lit,” signifying
excitement and intensity, while the Cited Marks are
descriptive, connoting goods that are “light” or
“lightweight,” a functional quality of the Registrant’s
specialized sportswear and sports accessories which
consumers commonly seek out when purchasing such
goods.
9 TTABVUE 6 (citation omitted).
With respect to the Examining Attorney’s argument for phonetic similarity,
Applicant claims in its reply brief that “there is no evidence consumers actually
pronounce ‘LYT’ as ‘LITE.’ Indeed, Applicant identified numerous registrations
where otherwise identical trademarks differ only by the use of ‘LYT’ versus ‘LITE,’

Serial No. 98477268
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yet coexist on the Principal Register — confirming that consumers can readily
recognize and distinguish between the two.” Id. at 7. Applicant further argues that
its mark “omits the terminal letter ‘E’, which appears in the Cited Marks.
Accordingly, there is no ‘E’ sound present in Applicant’s Mark.” Id. Applicant
concludes that “[d]espite any unsupported assumptions the Examining Attorney may
have, the record shows that ‘LYT’ and ‘LITE’ carry different appearances, sounds,
meanings, and commercial impressions.” Id.
We begin with the similarity or dissimilarity of the marks in appearance. The
compound word marks HYPERLITE and HYPERLYT “are visually similar, as both
begin with the word” HYPER. Sage Therapeutics, 2024 WL 1638376, at *6 (finding
the marks SAGE CENTRAL and SAGEFORTH to be similar). “We have noted in
other decisions that consumers are more likely to notice and remember the first
elements of a trademark,” id., and the HYPERLITE and HYPERLYT marks “share
the same structure,” starting with the word HYPER and then “add[ing] a second word
to create a [HYPER-]formative mark.” Id. “[I]n view of the marks’ structural
similarity, the lead words are their dominant portion and are likely to make the
greatest impression on consumers.” Detroit Athletic Co., 903 F.3d at 1303.
“The second elements of the marks are different, and some consumers may notice
and recall the difference,” but “the marks share the same structure,” which “results
in marks that look like variations on a [HYPER] theme.” Sage Therapeutics, 2024 WL
1638376, at *6. We find that the marks are far more similar than dissimilar in
appearance.

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With respect to sound, the means of comparison to which Applicant and the
Examining Attorney devote most of their attention, the HYPERLITE and
HYPERLYT marks “are also similar in sound, as the first and dominant [HYPER]
element of each mark will sound identical.” Id. As discussed above, Applicant argues
that the marks will sound different because the cited mark HYPERLITE will be
pronounced and heard as “Hyper light” and Applicant’s mark HYPERLYT will be
pronounced and heard as “Hyper lit,” while the Examining Attorney argues that
Applicant’s mark could be pronounced and heard in a manner that would make it
either phonetically identical to the cited mark, or sufficiently similar in sound to
make confusion likely.
“[T]here is no correct pronunciation of a trademark that is not a recognized word,”
StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 1331-32 (Fed. Cir. 2014),
and “[g]enerally, the principle that there is no correct pronunciation of a mark applies
with greater force when one of the marks involved is a coined mark without a specific
meaning.” In re Jimenez, Ser. No. 97551823, 2025 WL 3126703, at *5 (TTAB 2025).
Here, neither of the marks is a recognized word with a specific meaning. Cf. id. at *6
(finding that “Gasper” was a recognized surname “that begins with the letter strings
‘G-a-s’ and ‘G-a-s-p,’ each of which forms the words ‘gas’ and ‘gasp’ that are recognized
in U.S. English, and pronounced with a hard letter ‘g’ sound,” and that a “dictionary
entry for ‘jasper’ further shows that it is pronounced as ‘ja-spər’ with the soft letter ‘j’
sound and not with the hard letter ‘g’ sound”).

Serial No. 98477268
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“‘[I]t is impossible to predict how the public will pronounce a particular mark ’”
that is not a recognized word. Look Cycle Int’l v. Kunshan Qiyue Outdoor Sports
Goods Co., Canc. No. 92079409, 2024 WL 3739358, at *10 (TTAB 2024) (quoting
Edwards Lifesciences Corp. v. VigiLanz Corp., Opp. No. 91154210, 2010 WL 1514315,
at *11 (TTAB 2010)). “Absent evidence to the contrary, we must consider
all reasonable possibilities.” Id. (citing StonCor, 759 F.3d at 1332).
The record contains no evidence showing that the suffix “-LYT” in Applicant’s
mark HYPERLYT would only be pronounced as “LIT,” and “[a]ttorney argument is
no substitute for evidence.” In re Ye Mystic Krewe of Gasparilla, Ser. No. 90522364,
2025 WL 2953731, at *6 n.15 (TTAB 2025) (citing Cai v. Diamond Hong, Inc., 901
F.3d 1367, 1371 (Fed. Cir. 2018) (internal citation omitted)).20 Given that the letters
“ly” can be pronounced as “lie,” as in the English words “lying,” “lye,” and “lyre,” and
the phrase “lyme disease,” MERRIAM-WEBSTER DICTIONARY (merriam-webster.com,
last accessed on January 21, 2026), we find that the pronunciation of Applicant’s
mark HYPERLYT as “HYPER LIGHT” is at least a reasonable possibility and, in fact,
the most likely possibility. That pronunciation would result in the marks being
identical in sound.
In any event, “the first and dominant [HYPER] element of each mark will sound
identical.” Sage Therapeutics, 2024 WL 1638376, at *6. Even if Applicant’s mark were
pronounced as “HYPER LIT,” that pronunciation would be more similar than
20 Applicant offers no evidence regarding the pronunciation of the letters “LY” per se, but
focuses on what it calls words with “‘YT’ endings,” citing CRYPT (which does not have such
an ending) and MYTH. 6 TTABVUE 21.

Serial No. 98477268
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dissimilar to the pronunciation of the cited mark because of the identical prefix and
a suffix that begins with the letter “L” and contains the letter “T.” “The marks as a
whole sound partially different, but the shared [“hyper’] element will have the same
impact when spoken or heard as it does when seen.” Id.
Finally, with respect to meaning, both compound marks begin with the word
HYPER, which means, when used as a prefix, “above; beyond; super.” MERRIAM-
WEBSTER DICTIONARY (merriam-webster.com, last accessed on January 21, 2026).
Applicant’s argument that because its mark is “instinctively pronounced as
‘HYPERLIT,’ it connotes a different meaning than the Cited Marks” because it
“evokes ideas of being ‘LIT,’ and feelings of excitement, which is amplified by the use
of the initial term ‘HYPER’,” 6 TTABVUE 22, depends entirely on only one possible
pronunciation of the mark, and, as noted above, the possible pronunciation of
Applicant’s mark as “HYPER LIGHT” would imbue it with the identical meaning as
the cited mark.21 In the context of the identical clothing items identified in the ’282
Registration and in the application, the meaning of both mark as connoting “super
light” clothing seems far more plausible. We find that the marks are more similar
than dissimilar in commercial impression.
“Similarity is not a binary factor but is a matter of degree.” St. Helena Hosp., 774
F.3d at 752 (citation omitted). “[W]here, as here, the goods are identical in part,
‘the degree of similarity necessary to support a conclusion of likely confusion
21 We note in that regard that when one turns on a light, the scene is lit, and that “lit” is the
past tense of the verb “light.”

Serial No. 98477268
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declines.’” Ye Mystic Krewe of Gasparilla, 2025 WL 2953731, at *4 (quoting Viterra,
671 F.3d at 1363 (internal citation omitted)). When considered in their entireties, the
marks HYPERLITE and HYPERLYT are more similar than dissimilar in all means
of comparison. The first DuPont factor supports a conclusion that confusion is likely.
Naterra, Inc. v. Bensalem, 92 F.4th 1113, 1119 (Fed. Cir. 2024).
C. Applicant’s Other Arguments
Applicant argues that “the Cited Marks themselves include identical HYPERLITE
trademarks registered to different owners – HO Sports Company, LLC and Hyperlite
Mountain Gear Inc. – but have nonetheless coexisted for over seven years without
incident, despite covering goods that are even more closely related to one another
than Applicant’s goods are to either,” 6 TTABVUE 17, and that the “long-standing
coexistence of the Cited Marks without confusion serves as strong precedent that such
marks are distinguishable in the marketplace when other factors, such as function,
purpose, design, target market, and trade channels, differ.” Id. at 18. Applicant
concludes that “[c]onsistent with this treatment, Applicant’s Mark should be
permitted registration. Otherwise, maintaining the refusal would contravene policy
and lead to inconsistent determinations under the Lanham Act.” Id.
As discussed above, the two cited Class 25 registrations have a common owner,
and the goods identified in the ’282 Registration are identical in part to the goods
identified in the application. The fact that the two cited registrations coexist on the
Register with the cited Class 18 registration for non-identical goods does not persuade
us that there is no likelihood of confusion with respect to Applicant’s mark

Serial No. 98477268
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HYPERLYT and the HYPERLITE mark shown in the ’282 Registration, which are
used for identical goods. “It is axiomatic that the Board must assess each mark on its
own facts and record.” In re Korn Ferry, Ser. No. 90890949, 2024 WL 3219482, at *5
(TTAB 2024) (quotation and quotation marks omitted); see also In re Nett Designs
Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001). “[P]rior decisions and actions of other
trademark examining attorneys in registering other marks are not binding upon the
USPTO or the Board.” Korn Ferry, 2024 WL 3219482, at *5 (quoting In re Dolce Vita
Footwear, Inc., Ser. No. 88554717, 2021 WL 2285577, at *2 n.6 (TTAB 2021) (citing In
re USA Warriors Ice Hockey Program, Inc., Ser. No. 86489116, 2017 WL 2572815, at
*4 n.10 (TTAB 2017))). “Each case is decided on its own facts, and each mark stands
on its own merits.” Id. (quoting Dolce Vita Footwear, 2021 WL 2285577, at *2 n.6).
Applicant also argues that “[a]n applicant, when making its determination
whether a proposed trademark is registrable, is entitled to rely on the Office’s
treatment of similar trademarks,” and that “[t]he Office has established a clear
precedent permitting the coexistence of trademarks featuring the formative elements
‘LYT’ and ‘LITE’ under different owners in Classes 025 and 018.” 6 TTABVUE 18.
Applicant cites the following “LYTE” and “LITE” marks in Class 25:

Serial No. 98477268
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Id. Applicant also cites some ELITE and ELYT marks in Class 25. Id. at 19.
Applicant claims that
[t]he acceptance of the[se] trademarks indicates that the
Office has previously recognized that the elements “LYT”
and “LITE” are distinguishable in the marketplace for
Class 025 and Class 018 goods. The refusal to register
Applicant’s trademark HYPERLYT based on the
registrations for HYPER LITE and HYPERLITE
contradicts this established precedent. Consistent with
this treatment, Applicant’s Mark should be permitted
registration. Otherwise, maintaining the refusal would
contravene policy and lead to inconsistent determinations
under the Lanham Act.
Id. at 20-21.
The coexistence on the Register of two LYTE and LITE marks for different goods
in Class 25 again does not persuade us that there is no likelihood of confusion with
respect to Applicant’s HYPERLYT mark and the HYPERLITE mark shown in the
’282 Registration, which are used for identical goods. As discussed above, we must
decide this case “on its own facts and record,” Korn Ferry, 2024 WL 3219482, at *5
(quotation and quotation marks omitted), and although we see no inconsistency
between the prior USPTO determinations to register LYTE and LITE for different

Serial No. 98477268
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items of clothing, the “Board has recognize[d] that consistency is highly desirable,
[but] consistency in examination is not itself a substantive rule of trademark law, and
a desire for consistency with the decisions of prior examining attorneys must yield to
proper determinations under the Trademark Act and rules.” Id. at *5 n.13 (quotation
and quotation marks omitted).
Finally, Applicant argues that “the Cited Marks merely describe lightweight,
performance-enhancing features of the goods, and the refusal improperly seeks to
extend exclusive rights over descriptive matter.” 6 TTABVUE 24. According to
Applicant, the cited marks “function not as arbitrary or fanciful indicators of source,
but as descriptive terms conveying product features that are integral to the
consumer’s purchasing decision,” id. at 23, and its mark “stands apart from the Cited
Marks in appearance, sound, and meaning, and does not encroach upon the limited
scope of protection to which those marks are entitled.” Id. at 24.
The ’282 Registration issued on the Principal Register without the requirement of
a showing of acquired distinctiveness under Section 2(f) of the Trademark Act.
“Where, as here, the mark is registered without a Section 2(f) claim of acquired
distinctiveness, the mark is presumed to be inherently distinctive.” Brooklyn Brewery
Corp. v. Brooklyn Brew Shop, 17 F.4th 129, 146 (Fed. Cir. 2021) (citation omitted);
see also Tea Bd. of India v. Republic of Tea, Inc., Opp. No. 91118587, 2006 WL
2460188, at *21 (TTAB 2006) (“A mark that is registered on the Principal Register is
entitled to all Section 7(b) presumptions including the presumption that the mark is

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distinctive and moreover, in the absence of a Section 2(f) claim in the registration,
that the mark is inherently distinctive for the goods.”).
Applicant’s argument that the HYPERLITE mark shown in the ’282 Registration
is merely descriptive is an improper collateral attack on the Registration’s validity,
which we cannot entertain in this ex parte proceeding. Detroit Athletic Co., 903 F.3d
at 1309; In re Dixie Rests., Inc., 105 F.3d 1405, 1408 (Fed. Cir. 1997).22 In the absence
of significant evidence of third-party use and registration of marks containing the
elements of the mark shown in the ’282 Registration, we must accord the
HYPERLITE mark “the normal scope of protection to which inherently distinctive
marks are entitled.’” Sage Therapeutics, 2024 WL 1638376, at *10 (quoting Bell’s
Brewery, Inc. v. Innovation Brewing, Opp. No. 91215896, 2017 WL 6525233, at *9
(TTAB 2017)).
D. Summary
The key first two DuPont factors, and the third DuPont factor, support a
conclusion that confusion is likely. The goods, channels of trade, and classes of
consumers are identical, which reduces the degree of similarity between the marks
required for confusion to be likely, and the HYPERLITE and HYPERLYT marks are
sufficiently similar in appearance, sound, connotation, and commercial impression to
make confusion likely when they are used on identical goods. We conclude that
22 Any such attack in a cancellation proceeding would be futile in any event because the ’282
Registration issued in 2007 and is long past the five-year period in which it could be
challenged on the ground that the registered mark is merely descriptive of the goods. See Ye
Mystic Krewe of Gasparilla, 2025 WL 2953731, at *10 n.22 (citing 15 U.S.C. § 1064(3));

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consumers with a general impression of the cited HYPERLITE mark for various
clothing items who separately encounter the HYPERLYT mark for identical goods
are likely to believe mistakenly that the goods have a common source.
Decision: The refusal to register is affirmed.