Stefan Thaler

This Opinion is Not a
Precedent of the TTAB
Mailed: July 7, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Stefan Thaler
Serial No. 79395386
_____
Avraham S.Z. Cohn of Cohn Legal PLLC,
for Stefan Thaler.
Christopher Reams, Trademark Examining Attorney, Law Office 124,
Lydia Belzer, Managing Attorney.
_____
Before English, Lebow and Elgin,
Administrative Trademark Judges.
Opinion by English, Administrative Trademark Judge:
Stefan Thaler (“Applicant”) seeks registration on the Principal Register of the
standard-character mark FUNTASYA1 for:
Clothing, namely, shirts, pants, hats, shorts, jerseys, hoodies in
International Class 25; and
Retail online store services featuring clothing; retail and wholesale
online store services featuring clothing, shoes, footwear, headwear and
fashion accessories; retail online store services featuring clothing; online
retail online store services featuring clothing; retail online store services
1 Application Serial No. 79395386 was filed on April 1, 2024 as a request for extension of
protection under Section 66(a) of the Trademark Act, 15 U.S.C. § 1141(f)(a), based on
International Reg. No. 1789037.

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featuring bags; retail online store services featuring party decorations;
retail online store and wholesale online store services featuring glasses,
drinking vessels and barware; retail online store services featuring
printed matter being post cards, stickers, banners, printed napkins and
printed foam boards; retail online store services featuring stationery in
International Class 35.
The Examining Attorney refused registration of Applicant’s mark under Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion
with the mark (THE ADULT SHOP disclaimed) registered
on the Principal Register for:
Retail store and online retail store and wholesale store services
featuring adult products, videos, DVDs, magazines, toys, novelties,
lingerie and leather clothing, in International Class 35 (the “Cited
Mark” or “Cited Registration”).2
When the refusal was made final, Applicant appealed and requested
reconsideration.3 The request for reconsideration was denied and the appeal
proceeded. The appeal is fully briefed.
We affirm the refusal to register Applicant’s mark as to both classes in the
application.
2 Registration No. 3125617 was issued on August 8, 2006; renewed. The registration does not
include a description of the mark but does specify that color is not claimed as a feature of the
mark.
3 Citations to the record are to the downloadable .pdf versions of documents in the Trademark
Status & Document Retrieval (TSDR) database. Citations to the briefs refer to TTABVUE,
the Board’s online docket system.

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I. Analysis
“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
under Section 2(d) is based on an analysis of all of the probative facts in evidence that
are relevant to the factors bearing on 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 Ind., Inc., 575 U.S. 138, 144 (2015); see also In re Charger
Ventures, 64 F.4th at 1381.
We consider each DuPont factor for which there is evidence and argument. See In
re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019); M2 Software, Inc. v. M2
Commc’ns., Inc., 450 F.3d 1378, 1381 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA
Brands, Inc., No. 91194974, 2015 WL 1646447, at *8 (TTAB 2015) (“While we have
considered each factor for which we have evidence, we focus our analysis on those
factors we find to be relevant.”). Varying weights, however, may be assigned to the
DuPont factors depending on the evidence presented. See Citigroup Inc. v. Cap. City
Bank Grp., 637 F.3d 1344, 1355 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204,
1206 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play more or less
weighty roles in any particular determination”). Moreover, “each case must be
decided on its own facts and the differences are often subtle ones.” Indus. Nucleonics
Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973).

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In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the relatedness of the goods or services. See In re Chatam
Int’l Inc., 380 F.3d 1340, 1341-42 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976) (“The fundamental inquiry
mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”); see also In re
i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (“The likelihood of confusion
analysis considers all DuPont factors for which there is record evidence but ‘may focus
… on dispositive factors, such as similarity of the marks and relatedness of the
goods.’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164 (Fed.
Cir. 2002)). We address these two factors and other relevant DuPont factors below.
A. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider the “similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.” DuPont, 476 F.2d at 1361; see also Stone Lion Cap. Partners, L.P. v. Lion
Cap. LLP, 746 F.3d 1317, 1319 (Fed. Cir. 2014). “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 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

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their overall commercial impression such that confusion as to the source of the goods
and services offered under the respective marks is likely to result. Coach Servs., Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012). The marks “must be
considered … in light of the fallibility of memory….” In re St. Helena Hosp., 774 F.3d
747, 751 (Fed. Cir. 2014) (citation omitted). The focus is on the recollection of the
average consumer, who normally retains a general rather than specific impression of
trademarks. L’Oreal S.A. v. Marcon, No. 91184456, 2012 WL 1267956, at *5 (TTAB
2012); Baseball Am. Inc. v. Powerplay Sports Ltd., No. 91120166, 2004 WL 1942057,
at *3 (TTAB 2004); Sealed Air Corp. v. Scott Paper Co., No. 91055167, 1975 WL 20752,
at *3 (TTAB 1975).
We do not predicate our analysis on a dissection of the involved marks; we consider
the marks in their entireties. Stone Lion, 746 F.3d at 1321; 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.”). But one feature of a mark may be
more significant than another, and it is not improper, for rational reasons, to give
more weight to a dominant feature of a mark, provided the ultimate conclusion rests
on a consideration of the marks in their entireties. See, e.g., In re Charger Ventures,
64 F.4th at 1382 (permissible for the Board “to focus on dominant portions of a
mark”); In re Detroit Athletic, Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018) (it was not
error for the Board to focus on dominant portions of the marks).

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We find that the word FUNTASIA is the dominant element of the Cited Mark
because it is the first literal element in the mark and it is
displayed in a much larger font than THE ADULT SHOP, which has been disclaimed.
See, e.g., In re Ye Mystic Krewe of Gasparilla, No. 90522364, 2025 WL 2953731, at *4
(TTAB 2025) (entry of disclaimer is “an implicit concession that the term is
descriptive”); Presto Prods. Inc. v. Nice-Pak Prods. Inc., No. 91074797, 1988 WL
252340, at *3 (TTAB 1988). As such, in comparing the marks, we give greater weight
to the word FUNTASIA in the Cited Mark.
With respect to appearance, the dominant word FUNTASIA in the Cited Mark is
quite similar to Applicant’s mark FUNTASYA. Average consumers with a general
recollection are unlikely to notice or remember the one letter difference in the last
syllable of the words. L’Oreal v. Marcon, 2012 WL 1267956, at *5; Baseball Am. v.
Powerplay Sports, 2004 WL 1942057, at *3. The phrase THE ADULT SHOP in the
Cited Mark is a point of difference, but the phrase does not make much of a visual
impact because it is non-distinctive and appears below, and in much smaller font
than, the dominant word FUNTASIA. See In re Charger Ventures, 64 F.4th at 1382
(recognizing that “while the Board must consider the disclaimed term, an additional
word or component may technically differentiate a mark but do little to alleviate
confusion”). The two stripes in the Cited Mark merely serve to underscore the literal
elements of the mark and have little, if any, source identifying significance.

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In comparing the appearance of the marks, we also take into account that
Applicant’s standard-character mark FUNTASYA is not limited to a particular
manner of display. We therefore must consider that Applicant’s mark may be
displayed in a font style similar to the font style used for the term FUNTASIA in the
Cited Mark, which would increase the visual similarity between the marks.
As to sound, Applicant’s mark FUNTASYA is a coined term, as is the term
FUNTASIA in the Cited Mark; these words differ only in the second to last letter, “y”
and “i,” respectively, which sound substantially similar. Because “there is no correct
pronunciation of a trademark [or term] that is not a recognized word,” we find that
Applicant’s mark FUNTASYA and the FUNTASIA portion of the Cited Mark are
likely to be pronounced substantially the same. StonCor Grp., Inc. v. Specialty
Coatings, Inc., 759 F.3d 1327, 1331-32 (Fed. Cir. 2014); In re Jimenez, No. 97551823,
2025 WL 3126703, at *5 (TTAB 2025) (“Generally, 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.”).
This similarity in sound is significant because FUNTASIA is the dominant
element in the Cited Mark. Indeed, consumers may drop the non-distinctive phrase
THE ADULT SHOP when referring to Registrant’s services. See, e.g. In re Bay State
Brewing Co., No. 85826258, 2016 WL 1045677, at *3 (TTAB 2016) (consumers may
drop the highly descriptive term ‘Blonde’ when calling for TIME TRAVELER
BLONDE beer) (citing In re Abcor Dev. Corp., 588 F.2d 811, 815 (CCPA 1978) (Rich,
J., concurring) (“[T]he users of language have a universal habit of shortening full

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names–from haste or laziness or just economy of words[.]”)); see also Spoons Rests.
Inc. v. Morrison Inc., No. 91079317, 1991 WL 355249, at *5 (TTAB 1991) (recognizing
consumers’ “propensity for shortening names with which they have become familiar”).
But even if consumers were to pronounce the entirety of the literal elements in the
Cited Mark , there is still a similarity in sound because the
first word in the Cited Mark sounds substantially the same as Applicant’s mark
FUNTASYA.
We now turn to meaning and commercial impression. The term FUNTASIA in the
Cited Mark and Applicant’s mark FUNTASYA both call to mind the words “fantasia”4
and “fantasy.” Based on the record, we agree with Applicant that the additional
phrase THE ADULT SHOP in the Cited Mark has a sexual connotation with respect
to Registrant’s retail and wholesale store services “featuring adult products, videos,
DVDs, magazines, toys, novelties, lingerie and leather clothing.”5 The Cited Mark
4 We take judicial notice of the MERRIAM-WEBSTER DICTIONARY definition below for the word
“fantasia” at www.merriam-webster.com/dictionary/fantasia (emphasis omitted) (last visited
July 1, 2026):
1 : a free usually instrumental composition not in strict form[; and]
2 a : a work (such as a poem or play) in which the author’s fancy roves unrestricted
b : something possessing grotesque, bizarre, or unreal qualities[.]
“The Board may take judicial notice of dictionary definitions, including online dictionaries
which exist in printed format or have fixed regular editions.” In re Nextgen Mgmt., LLC, No.
88098031, 2023 WL 111145, at *4 n.5 (TTAB 2023).
5 See January 21, 2025 Office Action Response, TSDR 14 (article at ibisworld.com/united-
states/industry/adult-stores/4384/ explaining that the growth in the “adult stores industry
[is] primarily because of the increased normalization and social acceptance of adult
products.”); April 1, 2025 Final Office Action, at TSDR 18-19 (Spectrum Boutique listing

Serial No. 79395386
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thus carries a connotation and commercial impression of a fantasia or fantasy of a
fun, sexual nature. Applicant’s mark might not carry a sexual connotation, but the
marks still share a similar general connotation and commercial impression related to
a fun fantasia or fantasy.
To the extent that for some consumers the marks do not call to mind the words
“fantasia” or “fantasy,” the marks will be perceived as coined terms with no particular
meaning. Because the dominant term FUNTASIA in the Cited Mark is nearly
identical to Applicant’s coined mark FUNTASYA, the marks would likely be
perceived the same, albeit with the Cited Mark conveying an added sexual
connotation.
Because of the similarities between the marks, we find that consumers familiar
with the Cited Mark who encounter Applicant’s mark
FUNTASYA are likely to perceive it as a variation of the Cited Mark identifying a
line extension or to otherwise mistakenly believe that Applicant’s goods and services
are associated with or sponsored by Registrant. See, e.g., In re Great Lakes Canning,
products of a sexual nature under “Adult Party Supplies”); id. at 34-35 (Raymond & Co.
selling products of a sexual nature under the heading “Adult Toys, Miscellaneous”); id. at 76
(KNOCKFIRST, “Your local ‘couple’s boutique’ adult super toy store” selling products of a
sexual nature); September 26, 2025 Request for Reconsideration, TSDR 27-53 (blog titled
“The Complete Guide to Shipping Adult Products” describing the “U.S. Sex Toys Market); id.
at 70 (GOOGLE Merchant Center Help page identifying “adult-oriented content” as including
“adult merchandise” and “sexually suggestive content”); id. at 105 (article titled “How to be
Successful in an Adult eCommerce Niche” answering “How to start an online sex toy store?”);
id. at 114 (the AMAZON Seller Central page identifying “Adult products” as including
products of a sexual nature).

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Inc., No. 73365360, 1985 WL 71929, at *3 (TTAB 1985) (“Even those purchasers who
are fully aware of the specific differences between the marks may well believe,
because of the similarities between them, that the two marks are simply variants of
one another, used by a single producer to identify and distinguish companion lines of
products.”).
When we consider the marks in their entireties, we find that the marks overall
are similar. Applicant has not advanced any arguments under the first DuPont factor,
and thus, this finding is unchallenged.
B. Goods and Services, Trade Channels, Consumers, and
Conditions of Purchase
Before considering the second, third and fourth DuPont factors, we address
Applicant’s arguments that Registrant’s services, trade channels and consumers are
limited to sexual products sold through adult sex shops to consumers seeking
intimate products that are purchased only after age verification. Specifically,
Applicant argues that:
Registrant functions within the highly niche and idiosyncratic field of
the adult industry. Registrant’s adult e-commerce business operates
within a uniquely regulated environment characterized by stringent
country, state, and age-based restrictions, as well as compliance
obligations imposed by e-commerce platforms themselves. It is a self-
contained industry governed by specific financial regulations,
advertising limitations, and access controls, all of which underscore its
separation from the mainstream retail marketplace in which Applicant
operates.6
…
Registrant’s services are confined to the highly specialized, adult-
oriented retail sector, offering sexually explicit products, adult novelties,
6 Appeal Brief, 6 TTABVUE 9.

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videos, and lingerie. The customers frequenting such establishments or
online outlets comprise a distinct and narrowly defined group of adult
consumers seeking products of a personal or intimate nature. To this
end, the adult niche industry, and particularly adult novelty stores, is
regulated by law to ensure that customers accessing adult websites
verify their age before being granted entry, typically confirming that
they are 18 years of age or older. Proof of age is likewise routinely
required at the point of purchase. These requirements are designed to
restrict access to adult-only consumers and reinforce the segregation of
this market from mainstream retail commerce.7
…
This legally mandated step [also] introduce[es] a deliberate pause in the
consumer experience, requiring users to consciously acknowledge the
nature of the website they are entering.8
Our determinations under the second, third and fourth DuPont factors must be
based on the identifications of goods and services in the involved application and
Cited Registration. See, e.g., In re Charger Ventures, 64 F.4th at 1383 (“The relevant
inquiry in an ex parte proceeding focuses on the goods and services described in the
application and registration.”) (emphasis omitted); Sabhnani v. Mirage Brands, LLC,
2021 WL 6072822, at *10 (TTAB 2021) (“[A]s with the relatedness of the goods, the
similarity or dissimilarity of the channels of trade must be determined based on the
identifications of goods in the parties’ registrations[.]”); Sock It To Me, Inc. v. Fan,
No. 91230554, 2020 WL 3027605, at *9-10 (TTAB 2020) (determinations under the
third and fourth DuPont factors must be based on the identifications of goods and
services).
We focus our analysis under these factors on Registrant’s “retail store and online
retail store and wholesale store services featuring … leather clothing.” In re
7 Id. at 12-13.
8 Id. at 15.

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Aquamar, Inc., No. 85861533, 2015 WL 4269973, at *4 n.5 (TTAB 2015) (“[I]t is
sufficient for finding a likelihood of confusion if relatedness is established for any
item encompassed by the identification of goods [or services] within a particular class
in the application.”) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d
1335, 1336 (CCPA 1981)). Registrant’s identification does not include any limitations
on the nature of these services, the trade channels through which they are sold or the
relevant consumers. Nor may we consider extrinsic evidence on how Registrant uses
its mark to narrow these services. See, e.g., i.am.symbolic, 866 F.3d at 1327 (“[T]he
Board properly declined to import restrictions into the identification of goods based
on alleged real world conditions.”); Levi Strauss & Co. v. Abercrombie & Fitch
Trading Co., 719 F.3d 1367, 1373 (Fed. Cir. 2013) (“The PTO proceedings are based
on the content of the registration application and not upon any specific use of the
challenged mark in commerce.”) (cleaned up); In re FCA US LLC, No. 85650654, 2018
WL 1756431, at *4 (TTAB 2018) (“Evidence of actual marketplace usages that seeks
to limit or alter the usages encompassed by the marks, goods and services, or usages
listed in the application and registration are not considered in assessing likelihood-
of-confusion in the registration context.”).
1. Comparison of the Goods and Services
Now that we have assessed the scope of Registrant’s services, we compare them
to Applicant’s goods and services under the second DuPont factor. 476 F.2d at 1361.
A multiclass application is the equivalent of separate applications so we compare the
goods and services separately for each class in Applicant’s application. Federated

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Foods, 544 F.2d at 1101-02; G&W Labs., Inc. v. G W Pharma Ltd., No. 91169571,
2009 WL 226025, at *3 (TTAB 2009).
We start with Applicant’s Class 25 goods: “clothing, namely, shirts, pants, hats,
shorts, jerseys, hoodies.” This identification is broad enough to encompass leather
shirts and pants. See, e.g., Monster Energy Co. v. Lo, No. 91225050, 2023 WL 417620,
at *7 (TTAB 2023) (“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 Levi
Strauss v. Abercrombie & Fitch, 719 F.3d at 1373 (Fed. Cir. 2013)); Sw. Mgmt., Inc.
v. Ocinomled, Ltd., No. 94002242, 2015 WL 4464550, at *17 (TTAB 2015) (“Where an
applicant identifies its services broadly, we must presume that the services
encompass all services of the type identified.”), aff’d mem., 652 F. App’x 971 (Fed. Cir.
2016).
A mark for goods “finds its principal use in connection with selling the goods.” In
re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 464 (Fed. Cir. 1988) (emphasis in italics
in original changed to bold). Here, Registrant’s retail store and wholesale store
services featuring leather clothing encompass a subset of Applicant’s goods, namely,
leather pants and shirts. Thus, “there is overlap” on the face of Applicant’s Class 25
and Registrant’s Class 35 identifications. Id.; see also, e.g., In re Detroit Athletic, 903
F.3d at 1306 (“[W]hile the goods [clothing] and services [sports apparel retail services]
are not identical, they substantially overlap, which weighs in favor of finding a
likelihood of confusion.”); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,

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1267 (Fed. Cir. 2002) (identifications themselves may demonstrate relatedness); In
re Country Oven, Inc., No. 87354443, 2019 WL 6170483, at *3 (TTAB 2019)
(identifications themselves supported “overlap” of goods and services); In re Thomas,
No. 78334625, 2006 WL 1258862, at *2 (TTAB 2006) (finding confusion likely between
similar marks for jewelry and retail jewelry store services); J. Thomas McCarthy,
3 MCCARTHY ON TRADEMARKS ON UNFAIR COMPETITION § 24:25 (5th ed. March 2026
update) (“Where the services consist of retail sales services, likelihood of confusion is
found when another mark is used on goods which are commonly sold through such a
retail outlet.”).
Applicant’s Class 35 services include “retail online store services featuring
clothing; retail and wholesale online store services featuring clothing.” These services
are broad enough to encompass Registrant’s “retail and online retail store and
wholesale store services featuring … leather clothing.” See, e.g., Monster Energy v.
Lo, 2023 WL 417620, at *7; Sw. Mgmt. v. Ocinomled, 2015 WL 4464550, at *17. The
Class 35 services thus are in-part legally identical.
2. Trade Channels, Consumers, and Conditions of Purchase
We now turn to the third DuPont factor, namely, “[t]he similarity or dissimilarity
of established, likely-to-continue trade channels” and the fourth DuPont factor,
namely, “the conditions under which and buyers to whom sales are made, i.e.
‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 476 F.2d at 1361.

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Applicant focuses its arguments on Registrant’s retail and wholesale store
services featuring adult products, novelties, videos and lingerie,9 but we focus our
analysis on the trade channels and consumers for Registrant’s “retail and online
retail store and wholesale store services featuring … leather clothing” because these
are the services we found overlapping with Applicant’s Class 25 goods and “in-part
identical” to Applicant’s Class 35 services under the second DuPont factor.
Turning first to Applicant’s Class 25 goods, where, as here, “one party uses its
mark on goods that are sold in retail [and wholesale] stores that customarily vend
those goods, it is clear that the trade channels and customers overlap.” In re Country
Oven, 2019 WL 6170483, at *8; see also In re Hyper Shoppes, 837 F.2d at 464-65 (“The
respective marks [for ‘general merchandise store services’ and ‘wooden and
upholstered furniture’] will have their only impact on the purchasing public in the
same marketplace.”). Again, we cannot read any restrictions on trade channels or
consumers into Registrant’s identification.
With respect to Applicant’s and Registrant’s Class 35 services, because the
services are in-part legally identical and there are no restrictions as to trade channels
or consumers in the identifications, we presume that Registrant’s and Applicant’s in-
part identical services travel through the same channels of trade to the same
purchasers. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1372 (Fed. Cir. 2018) (“With
respect to similarity of the established trade channels through which the goods reach
customers, the TTAB properly followed our case law and ‘presume[d] that the
9 Appeal Brief, 6 TTABVUE 12.

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identical goods move in the same channels of trade and are available to the same
classes of customers for such goods.”); In re Viterra Inc., 671 F.3d 1358, 1362 (Fed.
Cir. 2012) (identical goods are presumed to travel in same channels of trade to same
class of purchasers). As explained above, Applicant may not rely on real world
conditions in an attempt to overcome the presumption of overlapping trade channels
and consumers.10
As to consumer care for both classes in the involved application, Applicant argues
“it is self-evident that the respective purchasers of Applicant’s and Registrant’s goods
and services exercise entirely different levels of discernment.”11 Again, this argument
relies on a restriction (goods sold through an adult sex shop) that is not identified in
Registrant’s identification.12 In any event, Applicant’s argument recognizes that
consumers frequenting its stores are “casual” purchasers.13
10 Even if we were to find the trade channels different (mainstream shop v. adult sex shop),
there would still be overlap in the relevant consumers because consumers shopping through
adult sex shops are members of the general public likely also to shop at mainstream retail
stores, featuring, inter alia, clothing, because such types of retail stores are ubiquitous and
sell everyday products. In re Embiid, No. 88202890, 2021 WL 2285576, at *13 (TTAB 2021)
(identifying shoes, shirts and sweatshirts as “ubiquitous, everyday products” offered to all
“normal potential consumers for those goods,” including “all members of the general public”).
11 Appeal Brief, 6 TTABVUE 15.
12 Moreover, Applicant further recognizes that age verification is not required in all relevant
jurisdictions. Id. (“Many jurisdictions, both in the United States and abroad, require adult
websites to verify that visitors are of legal age before granting access to adult content.”).
Registrant’s services also are not limited to online retail store services, and there is no
evidence that brick and mortar retailers and wholesalers of adult sexual products employ
any age verification systems.
13 Id.

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II. Weighing of the DuPont Factors
As a final step, we “weigh the DuPont factors used in [our] analysis and explain
the results of that weighing.” In re Charger Ventures, 64 F.4th at 1384 (emphasis
omitted).
In this appeal, the marks are similar. Applicant’s Class 35 services are in-part
identical to Registrant’s services and the trade channels and consumers overlap.
Similarly, there is overlap between Applicant’s Class 25 goods and Registrant’s
services, as well as the trade channels and consumers therefor. The first, second, and
third DuPont factors thus weigh in favor of finding confusion likely. The fourth
DuPont factor is neutral. No DuPont factor weighs against finding confusion likely.
We conclude that there is a likelihood of confusion between Applicant’s and
Registrant’s mark as to both classes of goods and services in the involved
application.14
III. Conclusion
Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed as to both classes.
14 Even if we were to credit Applicant’s arguments addressed in Section I(B) above, there
would be, at most, a trade channel restriction on Registrant’s services. Any difference in trade
channels, however, would not be sufficient to overcome the similarities in the marks, the in-
part identical and overlapping nature of Applicant’s goods and services and Registrant’s
services, and the overlap in consumers for Applicant’s goods and services and Registrant’s
services. We therefore would reach the same conclusion.