Bump Health, Inc.

This Opinion is Not a
Precedent of the TTAB
Mailed: February 4, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Bump Health, Inc.
_____
Serial No. 98294493
_____
Jonathan M. Francis of Phillips & Bathke, P.C.,
for Bump Health, Inc.
Laura Golden, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.1
_____
Before Lykos, Lebow and O’Connor,
Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
Bump Health, Inc. (“Applicant”) seeks to register on the Principal Register the
standard character mark AINS & LJ for goods identified in International Classes 3,
8, 10, 16, 20, 21, 25 and 28.2
1 The Office reassigned the application to Trademark Examining Attorney Golden at the
briefing stage of the appeal. The Trademark Examining Attorney during prosecution was
Christina Bellotti.
2 Application Serial No. 98294493, filed December 1, 2023 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
The application includes a statement that the name shown in the mark does not identify a
particular living individual.

Serial No. 98294493
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Applicant appeals a partial refusal to register the mark under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), for the goods identified in International Class
16, “Wall sticker murals; Wall stickers; Children’s wall stickers,” and International
Class 20, “furniture.” The ground for refusal under Section 2(d) is that Applicant’s
mark so resembles the previously registered standard character mark LJ on the
Principal Register for “furniture” in International Class 20 and “Wallpaper, non-
textile wall coverings, namely, wall coverings made of paper, grass cloth, vinyl,
polymers or fabric” in International Class 27, that it is likely to cause confusion or
mistake or to deceive.3
The appeal is fully briefed.4 For the reasons explained below, we affirm the refusal
to register as to both classes.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system in Portable Document Format (“PDF”). Citations to the record
also include references to TTABVUE, the Board’s online docketing system. See, e.g., Turdin
v. Trilobite, Ltd., No. 94002505, 2014 TTAB LEXIS 17, at *6 n.6.
This opinion cites decisions of the U.S. Court of Appeals for the Federal Circuit and the U.S.
Court of Customs and Patent Appeals by the pages on which they appear in the Federal
Reporter (e.g., F.2d, F.3d, or F.4th). For Board decisions, this opinion uses citations to the
Lexis® legal database, as well as the TTABVUE proceeding number, where available. See
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 101.03(a)(2) (2025)
for acceptable citation options to cases.
3 Registration No. 4061285 registered on November 22, 2011; renewed. Registration No.
4595448, registered on May 10, 2013; renewed. Registration No. 4061285 also includes fabric
and textile products in International Classes 24 and 26, but these items do not form the basis
for the Section 2(d) refusal. Both cited registrations are owned by the same entity, Kravet
LLC (“Registrant”).
After considering Applicant’s Request for Reconsideration, the Examining Attorney
withdrew the Section 2(d) refusal as applied to International Class 25 based on two other
previously cited registrations, Registration Nos. 4513792 and 4825656, owned by an
individual unaffiliated with Registrant. See April 18, 2025 Request for Reconsideration
Denied at TSDR 2.
4 Applicant’s inclusion of hyperlinks in its main brief to evidence already of record was
improper. Applicant’s Brief, pp. 13-14; 8 TTABVUE 14-15. Providing hyperlinks to Internet

Serial No. 98294493
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I. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits the registration of a mark that:
[c]onsists of or comprises a mark which so resembles a
mark registered in the Patent and Trademark Office, … as
to be likely, when used on or in connection with the goods
of the applicant, to cause confusion, or to cause mistake, or
to deceive.
15 U.S.C. § 1052(d). Our determination under Section 2(d) is based on an analysis of
all of the probative evidence of record bearing on the likelihood of confusion. In re E.
I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in
B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015); see also In re
Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023); In re Majestic Distilling
Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). In making our determination, we have
considered each DuPont factor for which there is evidence and argument. See In re
Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019). When analyzing these factors,
the overriding concerns are not only to prevent buyer confusion as to the source of the
goods, but also to protect the registrant from adverse commercial impact due to use
of a similar mark by a newcomer. See In re Shell Oil Co., 992 F.2d 1204, 1207 (Fed.
Cir. 1993).
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 353 (Fed.
Cir. 2011). “Each case must be decided on its own facts and the differences are often
sources is insufficient to make those materials of record because hyperlinked content can
change over time. In re Weiss, No. 88621608, 2024 TTAB LEXIS 277, at *3-4. The Board may
consider only the website printouts or screenshots that have been properly submitted into
the record and cannot supplement the record by accessing or updating hyperlinked content.

Serial No. 98294493
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subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973). In
any likelihood of confusion analysis, two key considerations are the first and second
DuPont factors, the similarity or dissimilarity of the marks and the goods. See In re
i.am.symbolic, LLC, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (citing Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)); see also In re Embiid,
No. 88202890, 2021 TTAB LEXIS 168, at *10 (“‘[T]he 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.’”) (quoting Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976)). These factors, as well as the
third and fourth DuPont factors, are discussed below.
As noted above, two classes of goods in the involved application are the subject of
the Section 2(d) refusal. This opinion therefore analyzes the refusal by class where
appropriate. See, e.g., N. Face Apparel Corp. v. Sanyang Indus. Co., No. 91187593,
2015 TTAB LEXIS 328, at *31 (“Because each class in Applicant’s multi-class
application is, in effect, a separate application, we consider each class separately, and
determine whether [the Examining Attorney] has shown a likelihood of confusion
with respect to each.”).
A. The Marks
We commence with the first DuPont factor, the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression. See, e.g., Charger Ventures, 64 F.4th at 1380 (citing DuPont, 476 F.2d at
1361); Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396

Serial No. 98294493
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F.3d 1369, 1371 (Fed. Cir. 2005) (same). “‘Similarity in any one of these elements may
be sufficient to find the marks confusingly similar.’” In re Inn at St. John’s, LLC, No.
87075988, 2018 TTAB LEXIS 170, at *13 (quoting In re Davia, No. 85497617, 2014
TTAB LEXIS 214, at *21-24, 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).
“‘[S]imilarity is not a binary factor but is a matter of degree.’” In re St. Helena
Hosp., 774 F.3d 747, 751 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d
1340 1344 (Fed. Cir. 2003)). The proper test regarding similarity “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 [Registrant and Applicant].” Cai v.
Diamond Hong, Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018) (quoting Coach Servs. Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012) (internal quotation
marks and citation omitted)).
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, the decision must be based on the entire marks, not just part of
the marks. In re Nat’l Data Corp., 753 F.2d 1056 (Fed. Cir. 1985). See also Franklin
Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981) (“It is axiomatic that
a mark should not be dissected and considered piecemeal; rather, it must be
considered as a whole in determining likelihood of confusion.”). “No element of a mark

Serial No. 98294493
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is ignored simply because it is less dominant, or would not have trademark
significance if used alone.” In re Electrolyte Labs. Inc., 929 F.2d 645, 647 (Fed. Cir.
1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293 (CCPA 1974).
We now compare Applicant’s mark AINS & LJ with the cited mark LJ, both in
standard characters. Applicant argues that the dominant element in its mark is the
distinctive, fanciful term AINS which appears first. Applicant contends that because
the cited mark LJ does not contain the term AINS, the marks are dissimilar overall.5
We acknowledge the general principle that consumers are generally more inclined
to focus on the first word or term in a mark. See Palm Bay Imps., 396 F.3d at 1372-
73. This tenet, however, is merely a guide and its application depends on the nature
of both that first term and any wording that comes after the first term in the mark.
As explained by the U.S. Court of Appeals for the Federal Circuit in Palm Bay
Imports, where the Court affirmed the Board’s holding that the mark VEUVE
ROYALE on one hand, and the marks VEUVE CLICQUOT and VEUVE CLICQUOT
PONSARDIN on the other, were similar overall,
[the] strong distinctive term [VEUVE] as the first word in
both parties’ marks renders the marks similar, especially
in light of the largely laudatory (and hence non-
5 Applicant draws an analogy to a non-precedential opinion from the U.S. Court of Appeals
for the Federal Circuit, Pure & Simple Concepts, Inc. v. I H W Mgmt., 857 Fed. Appx. 652,
655 (Fed. Cir. 2021), where the Court affirmed the Board’s finding that the first word “BLUE”
in Applicant’s mark BLUE INDUSTRY was the lead term and that as a result, this mark was
sufficiently dissimilar to Opposer’s INDUSTRY marks. Non-precedential opinions are not
binding upon the Board but may be cited and considered for whatever persuasive value they
might have. DC Comics v. Cellular Nerd LLC, No. 91246950, 2022 TTAB LEXIS 453, at *8-
9. Casting that concern aside, this decision is unpersuasive because in that case, the common
element in each mark was, at a minimum, merely descriptive.

Serial No. 98294493
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source identifying) significance of the word
ROYALE.
396 F.3d at 1372-73 (emphasis added). Such circumstances are not present here.
Unlike in Palm Bay, the term following AINS in Applicant’s mark, LJ, is neither
laudatory, merely descriptive or generic, but a “source identifying,” inherently
distinctive term. Likewise, the cited mark LJ is registered on the Principal Register
without a claim of acquired distinctiveness, and thus carries a presumption under
Trademark Act Section 7(b), 15 U.S.C. § 1057(b), that it is inherently distinctive. See,
e.g., New Era Cap Co., Inc. v. Pro Era, LLC, No. 91216455, 2020 TTAB LEXIS 199,
at *29. Consumers therefore may focus on the shared element LJ, which they will
pronounce identically to the Cited Mark, as “el jay.” As a result, the marks are similar
in both appearance and sound.
In terms of connotation and commercial impression, the record shows that some
well-informed consumers may interpret LJ as an initialism for Lee Jofa, a high end
fabric brand.6 But some may not, and those consumers will view LJ as arbitrary in
relation to the identified goods. As a result, the marks are similar in not only
appearance and sound, but also in connotation and commercial impression. On this
record, the term AINS does not have any apparent meaning. For these reasons, the
addition of the term AINS does not differentiate Applicant’s mark in a meaningful
way.
6 July 2, 2024 Response to Office Action at TSDR 17-30 (article entitled “Lee Joffa - Over 100
Years of Fine Fabrics” discussing the origins of the partnership between Arthur H. Lee &
Sons and Johnson & Faulkner otherwise known as “JOFA.”).

Serial No. 98294493
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Another consideration is that Applicant’s mark AINS & LJ incorporates the
entirety of the cited mark LJ. “‘[L]ikelihood of confusion often has been found where
the entirety of one mark is incorporated within another.” Double Coin Holdings, Ltd.
v. Tru Dev., No. 92063808, 2019 TTAB LEXIS 347 at *19 (internal citation omitted).
Because Applicant’s and Registrant’s marks share the identical, inherently
distinctive term LJ, and Applicant’s mark subsumes the entirety of Registrant’s mark
LJ, consumers are likely to perceive the LJ in each mark as referring to the same
source. See, e.g., Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1322
(Fed. Cir. 2014) (affirming Board’s finding that confusion was likely where applicant’s
mark STONE LION CAPITAL incorporated the entirety of the registered marks
LION CAPITAL and LION); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d
1261, 1266 (Fed. Cir. 2002) (finding that, even though applicant’s mark PACKARD
TECHNOLOGIES did not incorporate every feature of opposer’s HEWLETT
PACKARD marks, a similar overall commercial impression was created).
Those encountering both Registrant’s single term mark LJ and Applicant’s mark
AINS & LJ with the respective identified goods are likely to view Applicant’s mark
as a variant mark denoting a product line extension of Registrant. See, e.g., In re
Toshiba Med. Sys. Corp., No. 79046106, 2009 TTAB LEXIS 447, at *15 (VANTAGE
TITAN “more likely to be considered another product from the previously anonymous
source of TITAN medical diagnostic apparatus, namely, medical ultrasound devices”).
The presentation of Applicant’s mark as AINS & LJ conveys co-branding or
sponsorship with LJ. The joining of the two terms by an ampersand suggests a

Serial No. 98294493
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partnership with LJ, reinforcing the impression that the goods come from, or are
affiliated with, LJ branded goods.
For these reasons, we find that overall, the marks are similar in appearance,
sound, connotation and commercial impression. And as discussed below, where the
goods are either identical or closely related, a lesser degree of similarity is required.
See Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir.
1992) (“When marks would appear on virtually identical goods or services, the degree
of similarity necessary to support a conclusion of likely confusion declines.”); see also
Coach Servs., 668 F.3d at 1368 (“[i]n this fact-specific inquiry, if the parties’ goods are
closely related, a lesser degree of similarity between the marks may be sufficient to
give rise to a likelihood of confusion.”). The first DuPont factor weighs in favor of
finding a likelihood of confusion.
B. The Goods and the Established, Likely-to-Continue Channels of
Trade7
Next we consider separately, by international class, the second and third DuPont
factors. The second DuPont factor “considers whether the consuming public may
perceive the respective goods [ ] of the parties as related enough to cause confusion
about the source or origin of the goods [ ],” St. Helena Hosp., 774 F.3d at 752, and the
third factor analyzes “the similarity or dissimilarity of established, likely-to-continue
trade channels.” DuPont, 476 F.2d at 1361. For both factors, we are guided by the
7 Applicant does not address the second and third DuPont factors in its main brief. We do not
deem Applicant’s silence as a concession because the Examining Attorney bears the burden
of proof in an ex parte appeal.

Serial No. 98294493
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language set forth in the identification of goods in the application and cited
registration. See In re Detroit Athletic Co., 903 F.3d 1297, 1307 (Fed. Cir. 2018); Stone
Lion, 746 F.3d at 1323; Hewlett-Packard,, 281 F.3d at 1267. “[T]he 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 sales of the goods are directed ….” Octocom Sys., Inc. v.
Hous. Comput. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990) (internal citations
omitted).
“It is [also] 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., 2015 TTAB LEXIS 178, at
*8 n.5 (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335 (CCPA
1981)).
1. International Class 16
Applicant’s and Registrant’s International Class 16 goods are not identical.
However, this is not required to find that the goods are related. See On-line Careline
Inc. v. Am. Online Inc., 229 F.3d 1080, 1086 (Fed. Cir. 2000); Recot, Inc. v. Becton,
214 F.3d 1322, 1329 (Fed. Cir. 2000). The goods 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 the [goods] emanate from the same source.” Coach
Servs., 668 F.3d at 1369 (internal citation omitted). Evidence of relatedness may

Serial No. 98294493
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include news articles and/or evidence from computer databases showing that the
relevant goods are used together or used by the same purchasers; advertisements
showing that the relevant goods are advertised together or sold by the same
manufacturer or dealer; and/or copies of prior use-based registrations of the same
mark for both an applicant’s goods and the goods listed in the cited registration. See,
e.g., Davia, 2014 TTAB LEXIS 214, at *15-18 (finding pepper sauce and agave
“functionally related” where evidence showed both were used for the same purpose in
the same recipes and thus consumers were likely to encounter and purchase the
products at the same time and in the same stores).
To demonstrate that Applicant’s “Wall sticker murals; Wall stickers; Children’s
wall stickers” are related to Registrant’s “Wallpaper,”8 the Examining Attorney
submitted direct-to-consumer website evidence from third-party retailers showing
that the same entity offers for sale (either online or through their brick-and-mortar
stores) wallpaper as well as one or more of Applicant’s goods, and markets these items
under the same trademark. See In re Davey Prods. Pty Ltd., No. 77029776, 2009
TTAB LEXIS 524, at *15 (third-party website evidence shows that the applicant’s
and registrant’s products “can be manufactured and sold by a single source”). We
deem the following evidence as relevant:
8 “What is the difference between a wall mural and wall paper? A wallpaper is created and
bought to cover wall to wall, creating a decoration for an entire room. On the other hand, a
wall mural is designed for a single wall.” April 18, 2025 Request for Reconsideration Denied
at TSDR 114 (printout from wallsbyme.com accessed on 4/18/2025).

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Pottery Barn Kids offers for sale wallpaper, “peel & stick”
wall murals, and wall decals9 for children’s rooms;10
West Elm offers for sale wallpaper and “peel & stick” wall
decals;11
Crate & Barrel’s subdivision Crate&kids offers for sale
wallpaper and wall sticker decals for children’s rooms;12
York Wallcoverings offers for sale wallpaper and “peel and
stick” murals;13
Urban Walls offers for sale “easy to install and remove”
wall decals, “removable wall murals,” traditional
wallpaper, and “peel and stick” wallpaper;14
Walls Need Love offers for sale both “peel-and-stick
removable” and “standard paste-the-wall” wallpapers and
wall murals;15
9 The Board takes judicial notice of the following entries from THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2022) (online version at ahdictionary.com
accessed on 1/28/2026) in order to ascertain the probative value of the Examining Attorney’s
evidence: a “sticker” is defined as “[o]ne that sticks, as an adhesive label or patch” and a
“decal” is defined as “[a] decorative sticker.” See In re Cordua Rests. LP, No. 85214191, 2014
TTAB LEXIS 94, at *6 (Board took judicial notice of the definitions of “churrasco” from
English language dictionaries), aff’d, 823 F.3d 594 (Fed. Cir. 2016). Based on the dictionary
definitions, we find that a wall decal is the functional equivalent and a subcategory of a wall
sticker, meaning that the Examining Attorney’s third-party evidence involving wall decals is
relevant to showing relatedness of Applicant’s “wall stickers” and “children’s wall stickers”
to Registrant’s “wallpaper.”
10 April 20, 2024 Office Action at TSDR 39-45 (printouts from potterybarnkids.com accessed
on 4/20/2024).
11 April 20, 2024 Office Action at TSDR 46-55 (printouts from westelm.com accessed on
4/20/2024).
12 April 20, 2024 Office Action at TSDR 62-73 (printouts from crateandbarrel.com accessed
on 4/20/2024).
13 August 26, 2024 Final Office Action at TSDR 48-59 (printouts from yorkwallcoverings.com
accessed on 8/26/2024).
14 April 18, 2025 Request for Reconsideration Denied at TSDR 4-29 (printouts from
uwdecals.com accessed on 4/18/2025).
15 April 18, 2025 Request for Reconsideration Denied at TSDR 31-48 (printouts from
wallsneedlove.com accessed on 4/18/2025).

Serial No. 98294493
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RoomMates Décor offers for sale “peel & stick” decals and
wallpaper;16
Livette’s Wallpaper offers for sale removable wallpaper,
and removable wall murals;17
Walls by Me offers for sale “removable peel and stick” wall
murals and wallpaper;18 and
Simple Shapes offers for sale wall decals, wall stickers and
wallpaper.19
This third-party marketplace evidence demonstrates opportunities for consumer
exposure to both Applicant’s and Registrant’s goods from a common source under the
same trademark. See Detroit Athletic. Co., 903 F.3d at 1307 (crediting third-party
website evidence that retailers use the same mark for the goods at issue because
“[t]his evidence suggests that consumers are accustomed to seeing a single mark
associated with a source that sells both”). The evidence is not from “big box” online or
brick-and-mortar retailers selling a wide variety of goods from different suppliers but
rather from stores and their dedicated direct-to-consumer sales websites offering
home furnishings and several specializing in Applicant’s “Wall sticker murals; Wall
stickers; Children’s wall stickers,” and Registrant’s “Wallpaper …” This targeted type
of retailing is narrower in scope, and as such is entitled to a higher degree of probative
16 April 18, 2025 Request for Reconsideration Denied at TSDR 72-78 (printouts from
roomatesdecor.com accessed on 4/18/2025).
17 April 18, 2025 Request for Reconsideration Denied at TSDR 79-94 (printouts from
livetteswallpaper.com accessed on 4/18/2025).
18 April 18, 2025 Request for Reconsideration Denied at TSDR 96-114 (April 18, 2025 Request
for (printout from wallsbyme.com accessed on 4/18/2025).
19 April 18, 2025 Request for Reconsideration Denied at TSDR 131-146 (April 18, 2025
Request for (printout from simpleshapes.com accessed on 4/18/2025).

Serial No. 98294493
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weight meaning that the goods are closely related. In re Ox Paperboard, LLC, No.
87847482, 2020 TTAB LEXIS 266, at *17 (“[T]he fact that more targeted sellers offer
goods of both the Registrant and the Applicant tells us that the goods are related.”).
The second DuPont factor weighs in favor of a likelihood of confusion.
This bring us to the third DuPont factor. Neither the registration nor the
application contain any limitations on the channels of trade, or classes of purchasers.
As such, Applicant’s and Registrant’s goods presumptively move in all normal trade
channels and to consumers that purchase such goods. See Levi Strauss & Co. v.
Abercrombie & Fitch Trading Co., 719 F.3d 1367, 1373 (Fed. Cir. 2013). The same
third-party website evidence discussed above under the second DuPont factor shows
that certain of Applicant’s and Registrant’s goods are offered via the same brick-and-
mortar retail stores and direct-to-consumer websites specializing in wall decor. This
factor also favors a likelihood of confusion for International Class 16.
2. International Class 20
Applicant’s and Registrant’s International Class 20 goods identified as “furniture”
are identical. Because the goods are identical, we must presume that they travel in
the same ordinary trade and distribution channels and will be marketed to the same
classes of consumers. See In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (even
though there was no evidence regarding channels of trade and classes of consumers,
the Board was entitled to rely on this legal presumption in determining likelihood of
confusion where the goods at issue were identical and unrestricted); In re Yawata
Iron & Steel Co., 403 F.2d 752, 771 (CCPA 1968) (where there are legally identical

Serial No. 98294493
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goods, the channels of trade and classes of purchasers are considered to be the same);
see also In re Fat Boys Water Sports LLC, No. 86490930, 2016 TTAB LEXIS 150, at
*26 (applying presumption set forth in Viterra regarding trade channels and classes
of consumers); Sock It to Me v. Aiping Fan, 2020 TTAB LEXIS 201, at *22 (same). As
a result, the second and third DuPont factors weigh in favor of finding a likelihood of
confusion for International Class 20.
C. Purchasing Conditions – International Classes 16 and 20
The fourth DuPont factor evaluates “[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. A heightened degree of care when making a purchasing decision
may tend to minimize likelihood of confusion. See, e.g., In re N.A.D., Inc., 754 F.2d
996, 999-1000 (Fed. Cir. 1985) (because only sophisticated purchasers exercising
great care would purchase the relevant goods, there would be no likelihood of
confusion merely because of the similarity between the marks NARCO and
NARKOMED). Conversely, impulse purchases of inexpensive goods may tend to have
the opposite effect. Palm Bay Imps., 396 F.3d at 1376.
Applicant argues that consumers who purchase Applicant’s and Registrant’s
International Class 16, 20 and 27 “home furnishing” items are not making impulse
purchases but instead exercise an elevated degree of care.20 As Applicant contends,
consumers “are interested in the quality of the item and want an in-person ‘close look’
20 Applicant’s Brief, p. 13; 8 TTABVUE 14.

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at the items prior to purchase.”21 Applicant also points to evidence that items such as
wallpaper and furniture can be expensive, further mitigating against making an
impulsive purchasing decision.
The problem with Applicant’s argument is that neither its International Class 16
and 20 identification of goods nor Registrant’s Class 27 goods are limited by price or
consumer sophistication. See In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB
2006). We must therefore assume that such items are sold at all price points,
including high end and bargain prices. We must also assume that the types of buyers
overlap to include sophisticated large-scale corporate procurement departments as
well members of the general public ranging from the highly skilled home interior
designer to the novice. While some of these purchasers are likely to exercise a higher
degree of care, we must base our finding “on the least sophisticated potential
purchasers.” Stone Lion, 746 F.3d at 1325. “The least sophisticated potential
purchaser” is likely to exercise only ordinary care. Accordingly, the fourth DuPont
factor is neutral.
E. Conclusion
The final step in analyzing likelihood of confusion is to assess our findings under
the DuPont factors discussed above and determine whether, on balance, confusion is
likely. See Charger Ventures LLC, 65 F.4th at 1379.
We have carefully considered all of the evidence made of record, as well as all of
the arguments related thereto. In this case, each of the DuPont factors we have
21 Applicant’s Brief, p. 13; 8 TTABVUE 14.

Serial No. 98294493
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considered point in the same direction. The first DuPont factor weighs in favor of a
likelihood of confusion because overall, the marks are similar in sound, appearance,
meaning and commercial impression. The second and third factors also weigh in favor
of a likelihood of confusion for both classes of goods. For International Class 16, the
evidence shows that the goods are closely related and marketed in overlapping trade
channels. For International Class 20, the goods are identical, meaning that we can
rely on the presumption that the goods travel in the same ordinary trade and
distribution channels and will be marketed to the same potential consumers. The
fourth DuPont factor is neutral for both Applicant’s International Class 16 and 20
goods. With no factors weighing against a likelihood of confusion, we conclude that
confusion is likely for both classes of Applicant’s goods.
Decision: The partial Section 2(d) refusal as applied to International Classes 16
and 20 is affirmed. The application will move forward with respect to the goods
identified in International Classes 3, 8, 10, 21, 25 and 28.