Southwest Financial Federal Credit Union

This Opinion is Not a
Precedent of the TTAB
Mailed: January 6, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Southwest Financial Federal Credit Union
_____
Serial No. 98427873
_____
Darin M. Klemchuk of Klemchuk PLLC for Southwest Financial Federal Credit
Union.
Colleen Orscheln, Trademark Examining Attorney, Law Office 132,
Brandon Marsh, Managing Attorney.
_____
Before Heasley, Larkin, and Allard,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
Southwest Financial Federal Credit Union (“Applicant”) seeks registration on the
Principal Register of the standard-character mark SOUTHWEST FINANCIAL
EXPERIENCE BETTER BANKING for services ultimately identified as follows:
Credit union services; Financial services, namely, banking
services featuring financing loans for consumers;
installment loans; savings account services; financing
loans for automobiles; providing personal lines of credit;
Financial services, namely, banking services featuring
checking account services; Banking services featuring the
provision of individual retirement account services;
banking services provided via electronic device access

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allowing a consumer to use a telephone number to conduct
basic banking transactions; audio response account access
being automated teller machine services; Financial
services, namely, banking services featuring issuing of
credit cards; banking services provided via personal
computer account access; Financial services, namely,
banking services featuring providing money market
deposit accounts, and issuing debit cards; financial
services, namely, banking services for electronic check
acceptance services; Financial services, namely, banking
services for financing loans for a mortgage in International
Class 36.1
The Examining Attorney has refused registration of Applicant’s mark on two
grounds. First, the Examining Attorney has refused registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so
resembles two registered marks, the standard-character mark PACIFIC
SOUTHWEST FINANCIAL, registered on the Principal Register for the following
services in International Class 36:
Financial analysis and consultation; financial
management and investment in the fields of asset
allocation and management, cash management, estates,
college funding, retirement, insurance and investment;
insurance consultation and brokerage; financial support
services, namely, providing consultation to professionals in
an [sic] variety of disciplines, namely, taxation,
accountancy, underwriting, actuary;2
1 Application Serial No. 98427873 was filed on February 29, 2024 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claimed use of the mark in
commerce. Applicant claimed differing dates of first use of the mark and first use of the mark
in commerce for different services, including November 1962, January 1975, January 1980,
January 1990, and January 2000. The ultimate identification of services is the result of
Applicant’s amendment of services in its appeal brief in response to a final refusal based on
an amendment requirement, 4 TTABVUE 10-11, and the Examining Attorney’s acceptance
of that amendment in her brief. 6 TTABVUE 3.
2 The cited Registration No. 2687936 issued on February 18, 2003 and was most recently
renewed in 2023.

Serial No. 98427873
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and the standard-character mark EXPERIENCE BETTER BANKING (BETTER
BANKING disclaimed), registered on the Principal Register for the following services
in International Class 36:
banking; on-line banking services; credit union services;
mortgage banking; electronic funds transfer; electronic
payment, namely, electronic processing and transmission
of bill payment data; account payment and monitoring
services, namely, bill payment services; financial portfolio
management; financial information provided by electronic
means; financial information processing; investment
management, consultation, and brokerage; automated
financial clearing house; financial clearing house;
providing financial account management and information;
providing financial account balancing via a global
computer network and telecommunications networks;
providing web pages featuring information about utility
bill payment and consolidation services;3
as to be likely, when used in connection with the services identified in the application,
to cause confusion.
Second, the Examining Attorney has refused registration under Sections 2(e)(2)
and 6(a) of the Trademark Act, 15 U.S.C. §§ 1052(e)(2) and 1056(a), on the ground
that the words SOUTHWEST FINANCIAL in Applicant’s mark are primarily
geographically descriptive of the identified services, and must be disclaimed.4
3 The cited Registration No. 4529867 issued on May 14, 2014 and has been renewed.
4 As discussed below, during prosecution, the Examining Attorney also required a disclaimer
of the words BETTER BANKING on the ground that they are merely descriptive of the
identified services under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1),
September 20, 2024 Office Action at TSDR 6-7, but did not include that refusal in the final
Office Action. February 10, 2025 Final Office Action at TSDR 2, 7-8. In her brief, the
Examining Attorney purports to revive the disclaimer requirement as to the phrase BETTER
BANKING, 6 TTABVUE 4, 8-10, but because she did not require a disclaimer of that phrase
in the final refusal, we will not consider that issue on appeal. See TRADEMARK MANUAL OF
EXAMINING PROCEDURE (“TMEP”) Section 714.04 (Nov. 2025) (“When making an action final,
the examining attorney must restate any substantive refusals or requirements that remain

Serial No. 98427873
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Applicant appealed when the Examining Attorney made the refusals final.
Applicant and the Examining Attorney have filed briefs.5 We affirm the refusal to
register under Section 2(d) and do not reach the disclaimer refusal. In re Princeton
Equity Grp. LLC, Ser. No. 97397212, 2025 WL 1638891, at *4 (TTAB 2025).
I. Prosecution History and Record on Appeal6
Applicant originally sought registration of its mark based on a specimen
consisting of multiple pages from its website at swfinancial.org.7 The Examining
Attorney issued an Office Action refusing registration based on the two cited
registrations, requiring an amendment to Applicant’s identification of services, and
requiring disclaimers of SOUTHWEST FINANCIAL and BETTER BANKING.8 The
Examining Attorney made of record USPTO electronic records regarding the cited
registrations,9 pages from the websites of Wells Fargo, Bristol County Savings Bank,
outstanding, and must cite the rule(s) and/or statute(s) that provide the basis for these
refusals or requirements.”)
5 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
materials appear. Applicant’s brief appears at 4 TTABVUE and the Examining Attorney’s
brief appears at 6 TTABVUE.
6 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”).
7 February 29, 2024 Application at TSDR 12-42.
8 September 20, 2024 Office Action at TSDR 2-8.
9 Id. at TSDR 9-12.

Serial No. 98427873
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and BNC National Bank,10 and an entry from Brittanica.com captioned
“Southwest.”11
Applicant responded by purporting to amend its identification of services, and
arguing against the two refusals.12 Applicant made of record pages from the website
at bankrate.com regarding the differences between banks and credit unions,13 and
pages from Applicant’s website.14
The Examining Attorney then issued an Office Action making final the three
refusals to register,15 but limiting the disclaimer requirement to the phrase
SOUTHWEST FINANCIAL.16 The Examining Attorney made of record pages from
the websites of Citizens Bank, KeyBank, PNC, Regions, and Truist.17
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
10 Id. at TSDR 13-30.
11 Id. at TSDR 31-37.
12 December 13, 2024 Response to Office Action at TSDR 7-22.
13 Id. at TSDR 23-42.
14 Id. at TSDR 43-50.
15 February 10, 2025 Final Office Action at TSDR 2-9. As noted above, the Examining
Attorney ultimately accepted Applicant’s amendment made in its appeal brief.
16 Id. at TSDR 7-8.
17 Id. at TSDR 9-34.

Serial No. 98427873
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analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
1361 (CCPA 1973) (“DuPont”). Charger Ventures, 64 F.4th at 1379. We consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
“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 argues that the most relevant DuPont factors are
(1) Applicant’s Mark is sufficiently dissimilar from the
Cited Mark; (2) Applicant’s goods [sic] and services are
sufficiently dissimilar from those offered in connection
with the Cited Mark, particularly in light of the
differences between the marks; (3) purchasers of
Applicant’s services are likely to be sophisticated in the
relevant domain, carefully discerning when making
relevant purchases; and (4) the Parties have co-existed
in the marketplace without actual confusion for many
years.
4 TTABVUE 9. This argument invokes the first, second, fourth, and eighth DuPont
factors.
In our analysis of the likelihood of confusion, we will focus on cited Registration
No. 4529867 (the “’867 Registration”) of the mark EXPERIENCE BETTER
BANKING for various services in Class 36, including services that are literally or

Serial No. 98427873
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legally identical to the services identified in the involved application.18 If we find a
likelihood of confusion as to that mark and the services for which it is registered, we
need not find it as to the cited PACIFIC SOUTHWEST FINANCIAL mark and the
services 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 Services, Channels of Trade,
and Classes of Consumers
“The second DuPont factor considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration . . . .” In re Detroit
Athletic Co., 903 F.2d 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) (quoting Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002)). “In analyzing the services, the Board
considers ‘[t]he similarity or dissimilarity and nature of the 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 “‘services 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
18 As noted above, the ’867 Registration issued on May 13, 2014 and has been renewed, and
the registrant has disclaimed the exclusive right to use BETTER BANKING apart from the
mark as shown.

Serial No. 98427873
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6170483, at *2 (TTAB 2019)).19 “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 ot herwise
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.
Evidence of relatedness may include news articles or
evidence from computer databases showing that the
relevant goods [or services] are used together or used by
the same purchasers; advertisements showing that the
relevant goods [or services] are advertised together or sold
by the same manufacturer or dealer; or copies of prior use-
based registrations of the same mark for both applicant’s
goods [or services] and the goods [or services] listed in the
cited registration [and] [t]he application and registration
themselves may provide evidence of the relationship
between the [goods or] services.
Id. at *4 (quotations and citations omitted).
19 The “Examining Attorney need not prove, and we need not find, similarity as to each
[service] listed in the description of [services]” in Class 36 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 [service] encompassed by the identification of
[services] within a particular class in the application.” Id. (citations omitted).

Serial No. 98427873
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The Examining Attorney cites third-party use evidence of relatedness,20 but the
record shows that many of the services identified in the ’867 Registration and in the
application are literally or legally identical based on the language of the
identifications, and we need not rely on the third-party use evidence to find
relatedness.21
“[W]e must construe the services identified in the registration as broadly as
reasonably possible ‘to include all [services] of the nature and type described
therein,’” OSF Healthcare, 2023 WL 6140427, at *5 (quoting In re Solid State Design
Inc., Ser. No. 87269041, 2018 WL 287909, at *6 (TTAB 2018) (internal quotation
omitted)), and “we must resolve any ambiguities regarding their coverage in favor of
the cited registrant ‘given the presumptions afforded the registration under Section
7(b)’ of the Trademark Act.” Id. (quoting In re C.H. Hanson Co., Ser. No. 77983232,
2015 WL 6121759, at *5 (TTAB 2015) (citing 15 U.S.C. § 1057(b)). “[W]e must also
20 With respect to the mark shown in the ’867 Registration, Applicant’s only real challenges
to the Examining Attorney’s third-party use evidence are that the Examining Attorney
“claims Applicant’s credit union services are sufficiently similar to the Registrant’s
banking services,” but “fails to include evidence of any credit union services at all,” and
that the Examining Attorney “fails to appreciate the clear distinctions between credit unions
and banking institutions . . . .” 4 TTABVUE 21 (emphasis in bold here in italics in the
original). The owner of the ’867 Registration is itself a credit union, but the ’867 Registration,
like the application, recites multiple “banking services” in addition to “credit union services”
per se. The third-party use evidence confirms that providers of the “banking” and “on -line
banking services” identified in the ’867 Registration provide the specific types of banking
services identified in the application, which are not limited in the identifications to provision
of such services by a credit union to its members.
21 “[T]he Board may properly issue decisions that rely on a ‘different rationale’ in the sense
of not adopting in total all of the arguments and the identical view of the evidence of an
examining attorney (or, for that matter, an applicant),” In re Berkeley Lights, Inc., Ser. No.
88895703, 2022 WL 15733123, at *10 (TTAB 2022), so long as the Board does not “rely on a
new ground for refusal.” Id. at *11.

Serial No. 98427873
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give the services identified in the application their full scope in our analysis of the
second DuPont factor.” Id. (citation omitted).
Both the ’867 Registration and the application cover “credit union services,” and
those services are literally identical. The ’867 Registration also covers services
broadly identified as “banking” and “on-line banking services,” one or both of which
encompass the narrower services identified in the application as:
• “Financial services, namely, banking services featuring financing loans for
consumers;”
• “Financial services, namely, banking services featuring checking account
services;”
• “Banking services featuring the provision of individual retirement account
services;”
• “Banking services provided via electronic device access allowing a
consumer to use a telephone number to conduct basic banking
transactions;”
• “Financial services, namely, banking services featuring issuing of credit
cards;”
• “Banking services provided via personal computer account access;”
• “Financial services, namely, banking services featuring providing money
market deposit accounts, and issuing debit cards;”
• “Financial services, namely, banking services for electronic check
acceptance services;” and
• “Financial services, namely, banking services for financing loans for a
mortgage.”
These services are legally identical. Because multiple services identified in the ’867
Registration and in the application are literally or legally identical, the second
DuPont factor strongly supports a conclusion that confusion is likely. OSF
Healthcare, 2023 WL 6140427, at *9.

Serial No. 98427873
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The third DuPont factor considers the “similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. “Because the [Class 36]
services described in the application and [in] the [’867] [R]egistration are legally
identical in part, we must presume that the channels of trade and classes of
purchasers are the same as to those legally identical services.” Monster Energy Co. v.
Lo, Opp. No. 91225050, 2023 WL 417620, at *8 (TTAB 2023) (citing In re Viterra Inc.,
671 F.3d 1358, 1362 (Fed. Cir. 2012) (citation omitted)). The DuPont factors
pertaining to channels of trade and classes of consumers for the services also strongly
support a conclusion that confusion is likely. Id.
B. 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.’” In re Ye Mystic Krewe of Gasparilla, Ser. No. 90522364, 2025 WL
2953731, at *4 (TTAB 2025) (quoting DuPont, 476 F.2d at 1361). “Similarity in any
one of these elements may be sufficient to find the marks confusingly similar.” Sage
Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, Opp. No. 91270181, 2024 WL
1638376, at *5 (TTAB 2024) (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).

Serial No. 98427873
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“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)). The “average purchasers” here include members of the
general public who consume the various banking services identified in the
application, including services involving auto, home, and personal loans, checking
accounts, on-line banking, and credit and debit cards.
Applicant’s mark is SOUTHWEST FINANCIAL EXPERIENCE BETTER
BANKING and the cited mark is EXPERIENCE BETTER BANKING, both in
standard characters. Applicant’s mark contains the cited mark in its entirety, and
while there is no absolute rule that a likelihood of confusion exists where an
applicant’s mark contains the entirety of a registered mark, the fact that Applicant’s
mark includes the entirety of the cited registered mark increases the similarity
between the two. See, e.g., Coca-Cola Bottling Co. of Memphis, Tenn., Inc. v. Joseph
E. Seagram & Sons, Inc., 526 F.2d 556, 557 (CCPA 1975) (BENGAL LANCER for
club soda, quinine water and ginger ale found to be similar to BENGAL for gin); In
re Toshiba Med. Sys. Corp., Ser. No. 79046106, 2009 WL 1896059, at *3 (TTAB
2009) (VANTAGE TITAN for medical magnetic resonance imaging diagnostic

Serial No. 98427873
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apparatus found to be similar to TITAN for medical ultrasound diagnostic
apparatus); In re El Torito Rests., Inc., Ser. No. 597060, 1988 WL 252343, at *2 (TTAB
1988) (MACHO COMBOS for food items found to be similar to MACHO for restaurant
entrees); In re Riddle, Ser. No. 377365, 1985 WL 72011, at *2 (TTAB
1985) (RICHARD PETTY’S ACCU TUNE for automotive service centers found to be
similar to ACCU-TUNE for automotive testing equipment).
Applicant argues that the involved marks “are completely dissimilar in sight,
sound, and commercial impression,” 4 TTABVUE 11, and that the fact “that
Applicant’s Mark and the Cited Marks include some (but not all) of the same terms
is not dispositive.” Id. at 13. Applicant argues specifically that “the leading and
dominant portion of the ’867 Mark is ‘Experience,’ as opposed to a wholly separate
dominant term of ‘Southwest’ in Applicant’s Mark,” and that “[t]he existence of
distinct dominant terms in Applicant’s Mark and the ’867 Mark results in distinct
commercial impressions between the marks, nullifying any likelihood of confusion.”
Id. at 15.
Applicant criticizes the Examining Attorney for “assert[ing] that ‘applicant has
merely added the wording SOUTHWEST FINANCIAL to the beginning of Reg. No.
4529867’s mark to form its mark,’” id. (citation omitted), which Applicant argues “is
simply untrue” because “[g]iven the first use of Applicant’s Mark in 1962—and the
fact that the ’867 Mark was not used in commerce until 2010—there was no ‘867 Mark
for Applicant to ‘add to’ in creating its own mark.” Id. According to Applicant, it is
“[m]ore likely the Registrant of the ’867 Mark removed ‘Southwest Financial’ in order

Serial No. 98427873
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to create the ’867 Mark many decades after Applicant’s Mark was first used in
commerce.” Id.22
The Examining Attorney responds that “Applicant’s addition of SOUTHWEST
FINANCIAL to form its mark does not create a distinct commercial impression from
the registered mark because it contains some of the wording in Reg. No. 4529867’s
mark and does not add any wording that would distinguish it from that mark.” 6
TTABVUE 6. The Examining Attorney concludes that “the marks are similar in
sound, appearance, and meaning.” Id.
Before we discuss the similarity of the marks, we must note that Applicant’s and
the Examining Attorney’s discussion of Applicant’s “addition” of elements to the cited
mark in the formation of Applicant’s mark confuses the issue. The TMEP summarizes
the law as follows: “Additions or deletions to marks may be sufficient to avoid a
likelihood of confusion if: (1) the marks in their entireties convey significantly
different commercial impressions; or (2) the matter common to the marks is not likely
to be perceived by purchasers as distinguishing source because it is merely
descriptive or diluted.” TMEP § 1207.01(b)(iii) (collecting cases). But the language
discussing “additions or deletions to marks” should not be taken literally. Although
an applicant could intentionally add matter to a known prior mark (or delete matter
from a known prior mark), the inter partes discovery tools that could yield evidence
22 In that regard, Applicant argues that it has “[c]lear priority” of use vis-à-vis the cited mark.
4 TTABVUE 15. Any claim of priority is an improper collateral attack on the cited ’867
Registration that we cannot entertain in this ex parte appeal. See, e.g., In re Dixie Rests., Inc.,
105 F.3d 1405, 1408 (Fed. Cir. 1997).

Serial No. 98427873
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regarding an applicant’s selection of its mark are unavailable to the USPTO and
applicants in the ex parte context. In this context, the issue is not whether Applicant
deliberately “added” such matter, but rather whether the presence of such
additional matter avoids a likelihood of confusion. See In re Mighty Leaf Tea, 601 F.3d
1342, 1347-48 (Fed. Cir. 2010) (“The presence of an additional term in [a] mark does
not necessarily eliminate the likelihood of confusion if some terms are identical.” ).
As discussed above, Applicant argues that the dominant portion of its mark
SOUTHWEST FINANCIAL EXPERIENCE BETTER BANKING is the word
SOUTHWEST, which precedes the word FINANCIAL. “[T]he first of the literal terms
in [a] mark typically is the one which creates the strongest impression,” but “this is
not always the case, and disclaimed or descriptive terms may be considered less
significant features of the mark, even when they appear first.” Monster Energy, 2023
WL 417620, at *15 (citations omitted). It is self-evident that the word FINANCIAL
that precedes EXPERIENCE BETTER BANKING in Applicant’s mark is descriptive
of, if not the generic name for, the many “financial services” identified in the
application, and the Board held almost 50 years ago that “[t]he term ‘SOUTHWEST’
is no doubt a geographical term referring to the southwestern section of the United
States, and hence may be categorized as a somewhat weak term.” In re Allied Equip.
Co., 1977 WL 22683, at *2 (TTAB 1977).23 We find that the phrase SOUTHWEST
FINANCIAL is not the dominant portion of Applicant’s mark SOUTHWEST
23 As discussed above, Applicant claims use of SOUTHWEST FINANCIAL since 1962, but
did not seek to avoid a disclaimer of those words by showing that they had acquired
distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f).

Serial No. 98427873
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FINANCIAL EXPERIENCE BETTER BANKING even though it appears at the
outset of the mark.24
Applicant argues that the marks are dissimilar “in sight, sound, and connotation”
based on the comparison in Applicant’s brief reproduced below:
4 TTABVUE 13. That is not the lens through which we must consider the marks’
similarity. As noted above, “marks ‘must be considered . . . in light of the fallibility of
memory’ and ‘not on the basis of side-by-side comparison.’” St. Helena Hosp., 774 F.3d
at 751 (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565
F.2d 683, 685 (CCPA 1977)).
A consumer with a general rather than specific recollection of the cited mark
EXPERIENCE BETTER BANKING who separately encounters Applicant’s mark
SOUTHWEST FINANCIAL EXPERIENCE BETTER BANKING may notice the
differences in the appearance and sound of the marks due to the presence of
24 Because both Applicant’s mark and the cited mark are standard-character marks, “each
could be used in any typeface, color, or size, including the same stylization actually used or
intended to be used by the other party, or one that minimizes the differences or emphasizes
the similarities between the marks.” Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., Opp.
No. 91194148, 2015 WL 5316485, at *8 (TTAB 2015) (citing Citigroup Inc. v. Cap. City Bank
Grp. Inc., 637 F.3d 1344, 1353 (Fed. Cir. 2011) (the owner of a standard-character mark “is
entitled to depictions of the standard character mark regardless of font style, size, or color,
not merely ‘reasonable manners’ of depicting its standard character mark.”)). Accordingly,
we must assume that Applicant could display its SOUTHWEST FINANCIAL EXPERIENCE
BETTER BANKING mark in a manner that emphasizes the phrase EXPERIENCE BETTER
BANKING and deemphasizes the phrase SOUTHWEST FINANCIAL.

Serial No. 98427873
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SOUTHWEST FINANCIAL in Applicant’s mark, but is likely to understand
Applicant’s mark as a variant of the cited mark when it is used for identical services
that enable consumers to “experience better banking.” See Advance Mag. Publishers,
Inc. v. Fashion Elecs., Inc., Opp. No. 91247034, 2023 WL 4261426, at *14 (TTAB 2023)
(finding that “the addition of the letter E in Applicant’s EVOGUE mark adds another
layer of meaning, but could be perceived as a variation of Opposer ’s VOGUE mark
denoting the online or electronic aspect of the goods and services”) (citing Kangol Ltd.
v. Kangaroos U.S.A., Inc., 974 F.2d 161, 163 (Fed. Cir. 1992) (“What is important is
not whether people will necessarily confuse the marks, but whether the marks will
be likely to confuse people into believing that the goods they are purchasing emanate
from the same source.”); Toshiba Med. Sys., 2009 WL 1896059, at *5 (VANTAGE
TITAN found to be “more likely to be considered another product from
the previously anonymous source of TITAN medical diagnostic apparatus, namely,
medical ultrasound devices”); cf. Schieffelin & Co. v. Molson Cos., Opp. No. 69312,
1989 WL 277823, at *4 (TTAB 1989) (“Those consumers who do recognize the
differences in the marks may believe that applicant’s mark is a variation of opposer’s
mark that opposer has adopted for use on a different product.”). If SOUTHWEST
FINANCIAL is perceived as Applicant’s “house mark,” because “the common part of
the marks is identical, purchasers familiar with the registrant’s mark are likely to
assume that the house mark simply identifies what had previously been
an anonymous source.” In re Fiesta Palms, LLC, Ser. No. 76595049, 2007 WL 950952,
at *4 (TTAB 2007) (citations omitted).

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“Similarity is not a binary factor but is a matter of degree.” St. Helena Hosp., 774
F.3d at 752 (citation omitted). Where, as here, “the services are identical,
the degree of similarity between the marks necessary to support a determination
that confusion is likely declines . . . .” In re Jimenez, Ser. No. 97551823, 2025 WL
3126703, at *4 (TTAB 2025). There are differences in appearance and sound between
the marks EXPERIENCE BETTER BANKING and SOUTHWEST FINANCIAL
EXPERIENCE BETTER BANKING, but the marks are far more similar than
dissimilar in meaning when used with literally or legally identical credit union and
banking services, and the similarity in meaning outweighs any dissimilarities in
appearance and sound. The first DuPont factor supports a conclusion that confusion
is likely. Naterra, Inc. v. Bensalem, 92 F.4th 1113, 1119 (Fed. Cir. 2024).
C. Consumer Sophistication and Purchase Conditions
The fourth DuPont factor considers “‘[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.’” Heil Co. v.
Tripleye GmbH, Opp. No. 91277359, 2024 WL 4925901, at *34 (TTAB 2024) (citing
Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1323-24 (Fed. Cir.
2014) (quoting DuPont, 476 F.2d at 1361)). “[W]e look to the language of the
identifications to ascertain the . . . degree of care in purchasing.” Id. (citing Stone
Lion, 746 F.3d at 1323-24). “A heightened degree of care when making a purchasing
decision may tend to minimize likelihood of confusion,” while “[c]onversely, impulse
purchases of inexpensive items may tend to have the opposite effect.” Id. (citations
omitted).

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Applicant argues that “[h]ere, Applicant’s Mark is not likely to cause confusion
given the parties’ separate channels of trade and their intended end -consumer, as
well as the degree of care likely to be exercised by relevant consumers.” 4 TTABVUE
22-23. According to Applicant, “[c]onsumers purchasing a specialty item exercise a
greater degree of care in distinguishing the source of the products and services,” and
“even the least sophisticated consumers will exercise greater care in choosing to
participate as a member in a credit union and in selecting an entity to provide
guidance in the fields of asset allocation, estates, retirement, college funding,
taxation, and accounting.” Id. at 23 (citation omitted).25
The Examining Attorney responds that “[t]he fact that purchasers are
sophisticated or knowledgeable in a particular field does not necessarily mean that
they are sophisticated or knowledgeable in the field of trademarks or immune from
source confusion,” and that “where the purchasers consist of both professionals and
the public, the standard of care for purchasing the goods is that of the least
sophisticated potential purchaser.” 6 TTABVUE 7 (citations omitted).
The services identified in the application include “banking services featuring
financing loans for consumers;” “financing loans for automobiles;” “providing personal
lines of credit;” “banking services featuring checking account services;” “banking
services provided via electronic device access allowing a consumer to use a telephone
number to conduct basic banking transactions;” “banking services featuring issuing
25 We note again in that regard that while Applicant is a credit union (as is the cited
registrant), the involved identified banking services are not limited to services provided by a
credit union to its members.

Serial No. 98427873
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of credit cards;” “banking services provided via personal computer account access;”
“banking services featuring providing money market deposit accounts, and issuing
debit cards;” and “banking services for financing loans for a mortgage.”
The Federal Circuit and the Board have found, as a general matter, that some
consumers of banking services may exercise a higher degree of care and others may
not. See, e.g., Amalgamated Bank of N.Y. v. Amalgamated Trust & Sav. Bank, 842
F.2d 1270, 1274 (Fed. Cir. 1988) (“Banking is, we may take notice, unlike other
business. Instead of buyers, banking has customers who may be creditors of the bank
-- depositors -- or debtors to the bank -- borrowers and others to whom bank credit is
extended. Some of both categories one would expect to select their bank after long
and careful consideration. Others do not even know they will be customers of a bank
until they discover that they are, i.e., when paper they have signed, payable to
someone else, is assigned to a bank. We would suppose that bankers have to know
the habits of their customers, and the application of such knowledge is implicit in the
agreement here involved. It would be strange for the customers of the banks to be
confused about whom they were dealing with, and their bankers not know
it.”); Lincoln Nat’l Corp. v. Anderson, Opp. No. 91192939, 2014 WL 879506, at *15
n.18 (TTAB 2014) (where relevant purchasers of banking, financial planning, and
investment services consisted of both ordinary and knowle dgeable and sophisticated
consumers, “this factor certainly would not weigh significantly in applicant ’s favor.
At most it is neutral in our overall likelihood of confusion determination based on all
of the relevant duPont factors”).

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Against the backdrop of these cases and the recitations of services, we find that
not all purchasers of banking services are sophisticated or likely to exercise a
significant degree of care in purchasing. Applicant offers no evidence showing that
purchasers of banking services involving auto, home, and personal loans, checking
accounts, on-line banking, and credit and debit cards, everyday services that are used
by millions of members of the general public, are likely to exercise any particular care
in purchasing and using those services. Where, as here, the purchasers of the
identified services may include both businesses and ordinary consumers, “Board
precedent requires the decision to be based on the least sophisticated potential
purchasers.” Stone Lion, 746 F.3d at 1325 (quotation and quotation marks
omitted). We find that the least sophisticated potential purchasers of banking
services involving auto, home, and personal loans, checking accounts, on-line
banking, and credit and debit cards are unlikely to exercise more than ordinary care
in using those services. The fourth DuPont factors is thus neutral in our analysis of
the likelihood of confusion.
D. The Absence of Evidence of Actual Confusion
The eighth DuPont factor considers “[t]he length of time during and conditions
under which there has been concurrent use without evidence of actual confusion.”
DuPont, 476 F.2d at 1361. Generally, this factor is “not that important in ex parte
cases unless the applicant provides us with contextual evidence that allows us to
meaningfully assess the length of time and degree to which the applicant ’s and
registrant’s commercial activities would have provided an opportunity for confusion

Serial No. 98427873
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to have manifested itself if it were likely.” Embiid, 2021 WL 2285576, at *19 (citing
In re Guild Mortg. Co., Ser. No. 86709944, 2020 WL 1639916, at *8 (TTAB 2020) (“our
analysis as to the second, third, and fourth du Pont factors, discussing the similarity
or dissimilarity of the services, channels of trade, and relevant consumers, is based,
as dictated by precedent from the Federal Circuit, on the identifications as set
forth in the application and the cited registration. . . . [but] the eighth duPont factor,
by contrast . . . requires us to look at actual market conditions, to the extent there
is evidence of such conditions of record.”) (emphasis in original; citations omitted)).
In Guild Mortg., the applicant provided evidence of those “actual market
conditions” in the form of a declaration from a corporate executive establishing facts
regarding the applicant’s use of its mark, as well as evidence regarding the use of the
cited registered mark. Guild Mortg., 2020 WL 1639916, at *8-9. The record here is
devoid of such evidence. Applicant instead argues that
[t]he fact that the Parties have co-existed in the
marketplace for many years without any actual confusion
further demonstrates the absence of any likelihood of
confusion. Applicant has existed and used its marks since
1962 and the Cited Mark has been in use in commerce since
1997. That means that Applicant’s Mark and the Cited
Mark have co-existed in the marketplace for at least 35
years without any actual confusion between the marks.
4 TTABVUE 23.
Applicant’s arguments are meritless. The dates of use claimed in the application
and in the ’867 Registration are not evidence of use of the involved marks, cf.
DowntownDC Bus. Improvement Dist. v. Clarke, Opp. No. 91275100, 2024 WL
4449409, at *8 n.75 (TTAB 2024), and neither is the argument of Applicant’s attorney.

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Ye Mystic Krewe of Gasparilla, 2025 WL 2953731, at *6 n.15 (citing Cai v. Diamond
Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018) (internal citation omitted)).
Moreover, “in this ex parte context, there has been no opportunity to hear from [the]
[r]egistrant about whether it is aware of any reported instances of confusion. We
therefore are getting only half the story.” Guild Mortg., 2020 WL 1639916, at *9
(citations omitted). The eighth DuPont factor is neutral in our analysis of the
likelihood of confusion.
E. Summary
The key first and second DuPont factors support a conclusion that confusion is
likely. The marks are more similar than dissimilar, and the services are literally or
legally identical in part, which reduces the degree of similarity between the marks
that is required for confusion to be likely, and which causes the DuPont factors
pertaining to trade channels and classes of consumers to strongly support a
conclusion that confusion is likely. The other pertinent DuPont factors are neutral.
We conclude that consumers who have a general recollection of the cited mark
EXPERIENCE BETTER BANKING for various banking services who separately
encounter Applicant’s mark SOUTHWEST FINANCIAL EXPERIENCE BETTER
BANKING for legally-identical banking services are likely to believe, mistakenly,
that the services have a common source.
Decision: The Section 2(d) refusal to register is affirmed.26
26 As noted above, we need not and do not reach the alternative ground for refusal that a
disclaimer of SOUTHWEST FINANCIAL is required.