Spring Meadow Nursery, Inc. v. The Conard-Pyle Company

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: January 12, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Spring Meadow Nursery, Inc.
v.
The Conard-Pyle Company
_____
Opposition No. 91291336
_____
Brian D. Wassom of Warner Norcross + Judd LLP,
for Spring Meadow Nursery, Inc.
Keith A. Jones of Panitch Schwarze Belisario & Nadel LLP,
for The Conard-Pyle Company.
_____
Before Lebow, Elgin, and Brock,
Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
In this modern-day War of the Roses, The Conard-Pyle Company (“Applicant”)
seeks a registration of the standard character mark EASY BEE-ZY KNOCK OUT on
the Principal Register in connection with “live plants” in International Class 31.1
1 Application Serial No. 97912429 was filed on April 28, 2023 based upon Applicant’s claim
of first use anywhere since at least as early as January 2023 and first use in commerce since
at least as early as March 2023 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a).

Opposition No. 91291336
- 2 -
Spring Meadow Nursery, Inc. (“Opposer”) filed a Notice of Opposition against
registration of Applicant’s mark based on likelihood of confusion under Trademark
Act Section 2(d), 15 U.S.C. § 1052(d).2 In support of its claim, Opposer pleaded
ownership of eight prior-used and registered EASY-formative marks.3 Applicant
denied the salient allegations of the Notice of Opposition in its Answer.4
As discussed below, the parties agreed to conduct this proceeding via Accelerated
Case Resolution (“ACR”). We have considered the evidence of record and arguments
made by the parties. For the reasons set forth below, we dismiss the opposition.
I. ACR Stipulation and Motion to Strike Reply Brief
As noted, the parties agreed to conduct this proceeding via the streamlined ACR
process. On March 13, 2025, the parties submitted to the Board a Joint Stipulation
to Proceed Via Accelerated Case Resolution (the “Stipulation”).5 In the Stipulation,
the parties stated that they “seek to avoid a formal trial altogether by stipulating that
summary judgment style briefs and accompanying declarations and evidence be
treated as the final record and briefs in the case.”6 The parties stipulated that they
2 Opposer also selected the claims of dilution by blurring and dilution by tarnishment on the
ESTTA cover sheet, see 1 TTABVUE 1. There were no allegations in the notice of opposition
directed to the dilution claims, and Opposer did not assert the claims at trial. Accordingly,
the claims are both insufficiently pleaded and impliedly waived.
Citations in this opinion to the briefs and other materials in the case docket refer to
TTABVUE, the Board’s online docketing system. See New Era Cap Co. v. Pro Era, LLC, No.
91216455, 2020 TTAB LEXIS 199, at *1-5 n.1.
3 1 TTABVUE 7.
4 See 4 TTABVUE.
5 8 TTABVUE.
6 Id. at 2.

Opposition No. 91291336
- 3 -
would forgo trial, and “the … briefs, and all accompanying declarations and evidence,
be treated as the final record and briefs in the case…” with briefs due on dates
specified in Paragraph 1 of the stipulation.7 Further, they agreed that:
• “[T]he final record should include only the briefs listed in Paragraph 1 and
any declarations and evidence submitted therewith.”
• “[T]he declarations and evidence submitted with the briefs [will] be treated
as properly of record for purposes of final decision.”
• “The parties consent to the Board’s resolution of any and all disputed issues
of material fact and to the Board’s rendering of a final decision based on the
briefs and evidence presented.”
Id. The Board granted the Stipulation as requested.8 The parties thereafter filed
briefs and evidence in accordance with agreed-upon revised schedules, with Opposer’s
reply brief filed on August 13, 2025.9
On August 25, 2025, Applicant moved to strike Opposer’s reply ACR brief as
overlength.10 Applicant argues that summary judgment-style ACR reply briefs may
not exceed ten pages, yet Opposer’s ACR reply brief is sixteen pages, including a table
7 Id. at 2-3.
8 9 TTABVUE.
9 Opposer’s ACR brief and evidence are at 12, 13, 14 (confidential), and 15 TTABVUE.
Opposer did not file confidential and public versions of its brief, instead choosing to omit any
confidential information from its single filing. Applicant’s ACR brief and evidence are at 18
(confidential brief), 19 TTABVUE (public brief and exhibits), and 20 TTABVUE (confidential
exhibit) TTABVUE. Opposer’s reply ACR brief and evidence are at 21 TTABVUE.
10 22 TTABVUE.

Opposition No. 91291336
- 4 -
of contents and index of cases.11 See Trademark Rule 2.127(a), 37 C.F.R.
§ 2.127(a) (maximum page counts include table of contents, index of cases, description
of the record, statement of the issues, recitation of the facts, argument, and
summary). Although parties may stipulate to variations of trial rules in ACR
proceedings, such as briefing page limits, they did not do so here.
In response, Opposer does not contest the assertion that its ACR reply brief is
overlength. Instead, it argues that: the rule regarding striking of rebuttal briefs at
trial does not apply; it should be allowed to file a conforming substitute ACR reply
brief; and regardless, the Board should consider the evidence attached to the reply
brief.12 Although not titled as such, we construe Opposer’s request to file conforming
brief as a cross-motion to file a substitute reply brief.13
In reply (and in opposition to Opposer’s argument that it should be allowed to file
an amended reply brief), Applicant maintains that the Board should strike the
overlength brief and not grant leave to refile. However, “Applicant notes that it does
not object to the Board considering the evidence submitted with Opposer’s reply
brief.”14
11 Id. at 3.
12 23 TTABVUE.
13 In general, all motions should be filed separately, or at least be captioned separately, to
ensure they receive attention. A party should not embed a motion in another filing that is not
routinely reviewed by the Board upon submission. See Melwani v. Allegiance Corp., No.
91190682, 2010 TTAB LEXIS 443, at *13 n.15; see also TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE (TBMP) § 502.02 (2025).
14 24 TTABVUE 3 n.1.

Opposition No. 91291336
- 5 -
In Rasa Vineyards, LLC v. Rasavada, LLC, No. 91268532, 2022 TTAB LEXIS 296,
the Board found that “[w]here the parties have stipulated to the submission of briefs
in summary judgment format, that is, the form of a summary judgment motion,
Trademark Rule 2.127(a) provides a page limitation, briefs in support and briefs in
response … are limited to 25 pages and a reply brief shall not exceed 10 pages in
length.”15 Id. at *3-4; see also TBMP § 528.05(a)(2) (“The page limitation for briefs
under the summary judgment model of ACR is the same limitation as briefs on any
motion, including summary judgment.”). In Rasa Vineyards, as here, “[t]he parties
clearly stipulated to submission of their briefs in summary judgment format and the
page limits of a motion for summary judgment apply.” Id. at *4. The Board struck the
opposer’s 41-page main ACR brief, but allowed the party to resubmit a brief limited
to 25 pages.
Opposer does not dispute that its rebuttal ACR brief is overlength. In this case,
even if we could, we would not exercise our discretion to consider the overlength brief.
If we removed the three pages for the optional table of contents, and index of cases,
the reply brief would still exceed ten pages. Accordingly, we grant Applicant’s motion
to strike the reply brief and it has received no consideration.16 Saint-Gobain, 2003
TTAB LEXIS 90, at *6.
15 Trademark Rule 2.127(a) does not require a table of contents or index of cases in a summary
judgment brief. Saint-Gobain Corp. v. Minn. Mining and Mfg. Co, No. 91119166, 2003 TTAB
LEXIS 90, at *5. But, if a party elects to include these items, as Opposer did here, the
additional pages are considered in the page count. Id. We do not count the ESTTA cover sheet
or the separate certificate of service toward the page limit.
16 Although we have not considered Opposer’s reply brief, we confirm that it would not have
mattered in this case, as we would have reached the same result with or without the brief.

Opposition No. 91291336
- 6 -
Turning to Opposer’s construed cross-motion to file a conforming brief, unlike
Rasa Vineyards which concerned an overlength main ACR brief, the present motion
concerns a reply brief. Trademark Rule 2.127 provides that the time for filing a reply
brief (including on a summary judgment motion) will not be reopened or extended.
Accordingly, we deny Opposer’s cross-motion for leave to refile a reply brief which
conforms to the page limitation in Trademark Rule 2.127(a).
However, the Board has discretion to consider evidence submitted with a timely-
filed but overlength brief. Mattel, Inc. v. Brainy Baby Co., LLC, No. 92052047, 2011
TTAB LEXIS 400, at *3. Applicant concedes the point. Accordingly, we have
considered the evidence submitted with Opposer’s reply brief.
II. The Record
The record includes the pleadings and, pursuant to Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of the opposed application. Opposer made of record the
following evidence with its main ACR brief:
• Certificates of Registration for nine marks “on which Opposer relies,”
accompanied by partial Trademark Status & Document Retrieval
(TSDR) records (Exhibit A);17
• Declaration of Jeremy Deppe, Opposer’s General Manager and
President of Great Garden Plants, Inc. (a plant nursery in Grand
Haven, Michigan), and exhibits (Exhibit B);18
17 13 TTABVUE 26-61.
18 Id. at 62-91 (Exh. B, B-1, B-3, B-5); 14 TTABVUE (Exhs. B-2 and B-4, confidential); 15
TTABVUE (Exh. B-6); and 12 TTABVUE 2-71 (Exh. B-6 (cont’d) and B-7). Certain pages in
15 TTABVUE display the warning: “No image available for this record.” 15 TTABVUE 4, 6,
8, 9, 11, 12. It is the responsibility of the party making submissions to the Board via the
electronic database to ensure that the testimony or evidence has, in fact, been properly made
of record. See, e.g., Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., No. 92050879, 2013

Opposition No. 91291336
- 7 -
• Declaration of Dale Deppe, Opposer’s President (Exhibit C);19
• Declaration of Tim Wood, Opposer’s Product Development and
Marketing Manager (Exhibit D);20
• Applicant’s Responses and Objections to Discovery Requests (Exhibit
E);21
• Excerpts from Applicant’s advertising and social media pages
(Exhibit F)22 and website (Exhibit G);23
• Excerpts from third-party retail websites and articles advertising
both parties’ goods (Exhibit H)24 and
• An advertisement mentioning Applicant’s products (Exh. I).25
Applicant made of record the following evidence with its main ACR brief:
• Declaration of David Watkins, Director of Compliance and
Administration for Star Roses and Plants (the name under which
Applicant does business) and Applicant’s Secretary and Treasurer;26
• Declaration of Keith A. Jones, Applicant’s counsel, and exhibits
(including evidence relating to third-party marks; Applicant’s
supplemental responses to Opposer’s interrogatories; and excerpts
from the parties’ websites).27
TTAB LEXIS 347, at *25 n.16 (“the onus is on the party making the submissions to ensure
that, at a minimum, all materials are clearly readable by the adverse party and the Board”).
19 12 TTABVUE 87-90.
20 Id. at 91-94.
21 Id. at 95-123.
22 Id. at 124-41.
23 Id. at 142-45.
24 Id. at 146-71.
25 Id. at 172-73
26 19 TTABVUE 30-33.
27 Id. at 34-122 (public); 20 TTABVUE (confidential). See note 90, infra, regarding the
interrogatory responses.

Opposition No. 91291336
- 8 -
With its reply brief, Opposer made of record TSDR records for nine OSO EASY
and EASY formative marks (Exhibit J), identified as “a revised version of Exhibit A
that is updated for clarity.”28 This is evidence that should have been made of record
with Opposer’s case-in-chief, but as noted above, we consider it because Applicant
conceded as such.29
We recognize one significant issue with Opposer’s evidence: Opposer pleaded
ownership of eight prior-used and registered EASY-formative marks, all in standard
characters: OSO EASY PEASY for “Live plants excluding barley and peas in any
form”; OSO EASY for “Live plants”; OSO EASY ITALIAN ICE for “Live plants
excluding barley and melon in any form”; OSO EASY LEMON ZEST for “Live plants,
namely, woody ornamental plants”; OSO EASY DOUBLE RED for “Live plants,
namely, roses”; OSO EASY ICE BAY for “Live plants”; BIG EASY for “Live plants”;
and LET’S DANCE BIG EASY for “Live plants.” At trial, Opposer made of record the
registrations for all of these except BIG EASY. Opposer also made of record two
registrations for unpleaded marks: OSO EASY EN FUEGO for “Live plants” and OSO
EASY RED STRIPE for “Live plants, namely, roses.”
We may consider claims based on the unpleaded registrations only if we deem
them to be tried by implied consent. “The question of whether an issue was tried by
implied consent is basically one of fairness.” Morgan Creek Prods. v. Foria Int’l Inc,
No. 91173806, 2009 TTAB LEXIS 445, at *16. Accordingly, consent to the trial of an
28 21 TTABVUE 20-29.
29 See text accompanying note 14, supra (“Applicant notes that it does not object to the Board
considering the evidence submitted with Opposer’s reply brief.”).

Opposition No. 91291336
- 9 -
unpleaded issue can be found only where the non-offering party (1) raised no objection
to the introduction of evidence on the issue, and (2) was fairly apprised that the
evidence was being offered in support of the issue. Id. at *11. Here, Applicant
objected: “Two of [the nine registrations] (OSO EASY EN FUEGO and OSO EASY
RED STRIPE) were not listed in the Notice of Opposition and should not be
considered.”30 Accordingly, we have not considered these registrations. Nor have we
considered the pleaded registration for BIG EASY, which was not made of record or
relied upon by Opposer at trial. This leaves the following seven registrations of
record: OSO EASY PEASY; OSO EASY; OSO EASY ITALIAN ICE; OSO EASY
LEMON ZEST; OSO EASY DOUBLE RED; OSO EASY ICE BAY; and LET’S DANCE
BIG EASY.
There are other significant issues with the evidence of record, but we are capable
of weighing its strength or weakness, including any inherent limitations. We accord
the evidence whatever probative value it merits, and, as necessary and appropriate,
point out any limitations applied to the evidence or otherwise note that the evidence
cannot be relied upon in the manner sought. Cf. Alcatraz Media, Inc. v. Chesapeake
Marine Tours Inc., No. 92050879, 2013 TTAB LEXIS 347, at *11, aff’d, 565 Fed. App’x
900 (Fed. Cir. 2014); Krause v. Krause Publ’ns Inc., No. 92041171, 2005 TTAB LEXIS
487, at *10 (“Where we have relied on testimony to which respondent objected, it
should be apparent to the parties that we have deemed the material both admissible
and probative to the extent indicated in the opinion.”).
30 19 TTABVUE 11 n.3.

Opposition No. 91291336
- 10 -
III. Entitlement to a Statutory Cause of Action
To establish statutory entitlement to oppose under Trademark Act Section 13,
15 U.S.C. § 1063, Opposer must demonstrate a real interest in the proceeding and a
reasonable belief of damage. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM,
LLC, 965 F.3d 1370, 1372 (Fed. Cir. 2020); see also Empresa Cubana Del Tabaco v.
Gen. Cigar Co., 753 F.3d 1270, 1275 (Fed. Cir. 2014); Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1376 (Fed. Cir. 2012).
Opposer made of record printouts from the TSDR electronic database
demonstrating that it owns the seven active registrations for EASY and OSO EASY
formative marks for live plants discussed above for the live plants identified in each
registration. In addition, Opposer’s witness Jeremy Deppe testified that Opposer has
used the OSO EASY mark in U.S. commerce “consistently since 2006” on a line of
rose bushes and confirmed that the dates of first use identified in the registrations
for each of Opposer’s marks are accurate.31
This evidence supports Opposer’s plausible likelihood of confusion claim against
the involved application, showing its real interest in this proceeding and a reasonable
basis for its belief of damage. Made in Nature, LLC v. Pharmavite LLC, No. 91223352,
2022 TTAB LEXIS 228, at *19 (pleaded registrations demonstrate entitlement to
bring Section 2(d) claim). Moreover, Applicant conceded Opposer’s entitlement to a
statutory cause of action.32
31 See J. Deppe Decl. ¶¶ 8-10 (13 TTABVUE 64-65).
32 See 19 TTABVUE 9 n.1 (“Conard-Pyle does not contest Spring Meadow’s right to a statutory
cause of action or the priority of its marks.”).

Opposition No. 91291336
- 11 -
We find that Opposer has established its entitlement to assert the claim in this
proceeding by a preponderance of the evidence.
IV. Priority
In the absence of evidence establishing earlier use of its marks, Opposer may rely
for priority purposes on the constructive use filing dates of the underlying
applications for its seven registrations, which range from November 6, 2008 (OSO
EASY) to September 19, 2018 (LET’S DANCE BIG EASY). Trademark Act Section
7(c), 15 U.S.C. § 1057(c); see also Brewski Beer Co. v. Brewski Bros. Inc., No.
92021735, 1998 TTAB LEXIS 116, at *10, cited in Tao Licensing, LLC v. Bender
Consulting Ltd., No. 92057132, 2017 TTAB LEXIS 437, at *11.
Because all of these dates are prior to the filing date of Applicant’s application
(April 28, 2023) and because Applicant does not contest priority,33 we find that
Opposer has proven by a preponderance of the evidence that Opposer has priority in
the marks OSO EASY PEASY; OSO EASY; OSO EASY ITALIAN ICE; OSO EASY
LEMON ZEST; OSO EASY DOUBLE RED; OSO EASY ICE BAY; and LET’S DANCE
BIG EASY for the goods listed in those registrations.
V. Likelihood of Confusion Factors
Section 2(d) of the Trademark Act prohibits registration of a mark that is “likely,
when used on or in connection with the goods of the applicant, to cause confusion, or
to cause mistake, or to deceive” with the opposer’s prior-used mark. Our
33 See supra note 32. Thus, we need not address the evidence of earlier use of Opposer’s marks
as set forth in the Jeremy Deppe declaration.

Opposition No. 91291336
- 12 -
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. du Pont de
Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”) (setting forth factors to
be considered); see also In re Majestic Distilling Co., 315 F.3d 1311, 1315
(Fed. Cir. 2003). Opposer bears the burden of establishing that there is a likelihood
of confusion by a preponderance of the evidence. Cunningham v. Laser Golf Corp.,
222 F.3d 943, 951 (Fed. Cir. 2000).
We consider the likelihood of confusion factors for which there is evidence and
argument, see In re Guild Mortg. Co., 912 F.3d 1376, 1380 (Fed. Cir. 2019), but “[n]ot
all DuPont factors are relevant in each case, and the weight afforded to each factor
depends on the circumstances.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns,
Inc., 955 F.3d 994, 999 (Fed. Cir. 2020) (citing In re Dixie Rests., 105 F.3d 1405, 1407
(Fed. Cir. 1997)). In any likelihood of confusion analysis, two key considerations are
the similarities between the marks and the similarities between the goods or services
under the first and second DuPont factors. See 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.”).
We focus our inquiry on two of Opposer’s standard-character marks: OSO EASY
for “live plants” and OSO EASY PEASY for “live plants excluding barley and peas in
any form,” because these marks and the associated goods are most similar to
Applicant’s mark and goods. If we find a likelihood of confusion as to either of these

Opposition No. 91291336
- 13 -
marks and the associated goods, we need not find it as to Opposer’s other marks.
Conversely, if we do not find a likelihood of confusion as to either of these marks, we
would not find it as to Opposer’s other marks. See Sock It to Me v. Fan, No. 91230554,
2020 TTAB LEXIS 201, at *20-21 (confining likelihood of confusion analysis to most
similar pleaded mark); In re Max Cap. Grp. Ltd., No. 77186166, 2010 TTAB LEXIS
1, at *5 (same).
A. Fifth and Sixth Factors: Strength or Weakness of Opposer’s
Marks
Before comparing the marks, we address Opposer’s argument that its marks are
commercially and conceptually strong, and Applicant’s counter-argument that
Opposer’s marks are weak and entitled to a narrow scope of enforcement.
“Two of the DuPont factors (the fifth and sixth) consider strength.” Spireon, Inc.
v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023). The fifth DuPont factor concerns
“[t]he fame of the prior mark (sales, advertising, length of use),” whereas the sixth
DuPont factor allows Applicant to contract that scope of protection by adducing
evidence of weakness of the mark through “[t]he number and nature of similar marks
in use on similar goods.” DuPont, 476 F.2d at 1361.34
1. Fifth Factor: Fame
The fame (or commercial strength) of a mark under the fifth factor is relevant to
the likelihood-of-confusion analysis because “[a] mark with extensive public
34 Applicant contends that Opposer did not present argument supporting the fame of its
marks under the fifth factor and therefore “that factor does not favor it.”29 TTABVUE 23-24.
As we discuss below, we find evidence and argument relating to both factors in the parties’
briefs.

Opposition No. 91291336
- 14 -
recognition and renown deserves and receives more legal protection than an obscure
or weak mark.” Omaha Steaks Int'l, Inc. v Greater Omaha Packing Co., 908 F.3d
1315, 1319 (Fed. Cir. 2018) (quoting Kenner Parker Toys Inc. v. Rose Art Indus., Inc.,
963 F.2d 350, 353 (Fed. Cir. 1992)). Such strength rests on the extent to which “a
significant portion of the relevant consuming public . . . recognizes the mark as a
source indicator.” Joseph Phelps Vineyards Holdings, LLC v. Fairmont Holdings,
LLC, 857 F.3d 1323, 1324-25 (Fed. Cir. 2017) (citing Palm Bay, 396 F.3d at 1374-75).
In this context, “the strength of a mark is not a binary factor, but varies along a
spectrum from very strong to very weak.” In re Coors Brewing Co., 343 F.3d 1340,
1345 (Fed. Cir. 2003); see also Joseph Phelps Vineyards, 857 F.3d at 1325 (same).
In assessing commercial strength or fame, we may consider direct evidence such
as consumer surveys or declarations; and indirect evidence including the volume of
sales and advertising expenditures in connection with the identified goods sold under
the mark; the length of time the mark has been in use; widespread critical
assessments; notice by independent sources of the goods offered under the marks; the
general reputation of the goods; and social media presence. Heil Co. v. Tripleye
GmbH, No. 91277359, 2024 TTAB LEXIS 494, at *51 (citation omitted); Weider
Publ’ns, LLC v. D & D Beauty Care Co., No. 91199352, 2014 TTAB LEXIS 2, at *18-
19; see also Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 1371 (Fed. Cir.
2002) (recognizing indirect evidence as appropriate proof of strength).
Opposer presented evidence and argument about the “commercial strength” of its
mark, which we deem relevant to relevant to the question of commercial strength or

Opposition No. 91291336
- 15 -
fame under the fifth DuPont factor. Applicant did not address this evidence in its
brief.
First, Opposer relies on third-party recognition in the form of “endorsements of
the plants sold under Opposer’s Marks for use in gardens and landscaping from
various publications and award-granting entities.”35 Mr. Deppe referred to “Awards
of Excellence based on independent trials and evaluations,” and specifically, for the
OSO EASY PEASY brand rose bushes, Winner of the 2024 A.R.T.S. Master Rose
award, recipient of the Volunteers of America Best Shrub rose by the American Rose
Center International Rose Trials, and Winner of the American Rose Society Award of
Excellence.36 The exhibits submitted in support of these statements are
advertisements by Proven Winners, by which Opposer “is exclusively licensed to
select, develop, distribute, and market shrubs for the [PROVEN WINNERS] brand.”37
The advertisements tout Proven Winners’ “Awards of Excellence” for the OSO EASY
brand roses (2012 – OSO EASY PETIT PINK; 2016 – OSO EASY LEMON ZEST;
2017 – OSO EASY PEASY; 2019 – OSO EASY URBAN LEGEND; and 2021 – OSO
EASY DOUBLE PINK).38 Opposer also presented other examples of advertising in
various publications, and Mr. Deppe testified:
Spring Meadows advertises its plants in brochures, on its
website, through the websites of affiliated companies, and
all other customary channels, including social media,
digital ads (such as Sponsored Ads and banner ads, in
35 13 TTABVUE 21.
36 Id. at 64, 65 (J. Deppe Decl. ¶¶ 8, 10).
37 Id. at 63 (J. Decl. ¶ 5).
38 Id. at 75-78 (J. Deppe Decl. Exh. B-1).

Opposition No. 91291336
- 16 -
photographic and videographic form), television ads, radio
ads, and print ads.39
….
Each year, Spring Meadow’s advertising features (among
other things) its “Shrubs of the Year,” including “Rose of
the Year.” In 2024, Spring Meadow promoting the rose
shrub sold under the OSO EASY PEASY® brand name as
its Rose of the Year.40
….
Our hundreds of thousands of social media followers
inevitably get inspired by these promotions. In addition, we
run a host of digital ads plus radio, podcasts, streaming
video, and print ads prominently featuring the chosen
shrub. OSO EASY PEASY® received this treatment.
Examples are included among the advertisements in
Exhibit 6.41
We also promoted OSO EASY PEASY® as the 2024 Rose of
the Year at live trade events using such promotional
materials as signs, standing displays, and stickers for
distribution. Receipts for these materials are contained in
Exhibit 7.42
OSO EASY® DOUBLE RED was the 2020 Rose of the
Year, and OSO EASY® ITALIAN ICE was the 2021 Rose
of the Year.43
Opposer submitted many copies of advertisements for plants sold under OSO
EASY-formative marks in various media, but we have no information as to the
39 Id. at 68-69 (J. Deppe Decl. ¶ 18).
40 Id. at 69 (J. Deppe Decl. ¶ 22).
41 Id. at 70 (J. Deppe Decl. ¶ 22).
42 Id. (J. Deppe Decl. ¶ 23).
43 Id. (J. Deppe Decl. ¶ 25).

Opposition No. 91291336
- 17 -
circulation of any of these advertisements in the United States.44 Mr. Deppe testified
generally about Opposer’s marketing efforts as follows:
The concept of marketing plants directly to the consumer
at scale through brands has really only happened to any
meaningful degree over the past thirty years. It started
small and has grown like a snowball, picking up speed over
time. Sure, anyone can market plants via social media or a
website searching for organic reach and growth. Anyone
can spend some marketing dollars to advertise to trade
partners and wholesale customers. But the amount of
dollars being spent both by the Applicant and Opposer are
significant when it comes to marketing directly to the
consumer. Gardeners today are more aware of individual
plants names than ever before. Marketing to the consumer
drives demand to the garden center looking for individual
plants in specific brand containers.45
Mr. Deppe provided confidential marketing figures for “OSO EASY PEASY” and
“OSO EASY (excluding PEASY),” each in the low six figures.46 There is no
information on the exhibit or in testimony indicating the time period of these
expenditures.47 Mr. Deppe, however, attempted to place Opposer’s marketing
expenditures somewhat in context: “Applicant and Opposer have the two largest
consumer marketing budgets for roses in the industry. Roses are a top ten-selling
plant for the Opposer.”48
44 See, e.g., 13 TTABVUE 80-88 (Exh. B-3, B-4), 15 TTABVUE (Exh. B-6); 12 TTABVUE 2-70
(Exh. B-6, cont’d)
45 13 TTABVUE at 68 (J. Deppe Decl. ¶ 17).
46 Id. at 71 (confidential).
47 See id. at 68 (J. Deppe Decl. ¶ 16) (“A summary of Spring Meadow’s marketing and
promotional expenses, sales volumes, and sales revenue for each of Opposer’s Marks is
attached as Exhibit 2 (Sealed)….”).
48 Id. (J. Deppe Decl. ¶ 17).

Opposition No. 91291336
- 18 -
Opposer’s testimony and evidence show some strength of the OSO EASY
formative marks, but the probative value of this evidence is tempered because we do
not know the exact extent or reach of Opposer’s activities including whether they
have actually enhanced consumer recognition of the OSO EASY-formative marks. See
Made in Nature, 2022 TTAB LEXIS 228, at *38-39 (“Opposer did not provide evidence
regarding the extent or reach of these activities (e.g., the volume and geographical
extent of the readership of the print media in which Opposer’s advertisements and
flyers have appeared … and the length of time over which these advertisements have
been placed.”). The advertisements made of record are in gardening magazines and
trade publications such as Digger, Nursery Management, Michigan Landscape, The
English Garden, L&GR Lawn and Garden Retailer, Fine Gardening, Green Profit,
Garden Gate, Triangle Gardener, American Rose, Gateway Gardener, Growsmith,
The Buckeye Magazine, Landscape Trades, and Garden Center, and we have not been
provided with the circulation of these publications or target audiences.49 The
marketing numbers are not so large that we could impute widespread recognition of
the pleaded marks amongst relevant consumers: the general public who buy plants.
Mr. Deppe also provided confidential figures for Opposer’s sales units —
presumably individual shrubs — from 2014-2024 for nineteen of Opposer’s OSO
EASY formative marks combined (including non-pleaded marks).50 These figures
49 13 TTABVUE 83-87 (J. Deppe Decl. Exh. B-3); 12 TTABVUE 3-70 (id. Exh. B-6).
50 14 TTABVUE 2-3 (J. Deppe. Decl. Exh. B-2) (confidential). These are identified as: Rosa
OSO EASY EN FUEGO®; Rosa OSO EASY® PETIT PINK; Rosa OSO EASY ITALIAN ICE®;
Rosa OSO EASY ICE BAY®; Rosa OSO EASY® CHERRY PIE; Rosa OSO EASY® URBAN
LEGEND®; Rosa OSO EASY LEMON ZEST®; Rosa OSO EASY RED STRIPE™; Rosa OSO
EASY DOUBLE RED®; Rosa OSO EASY® DOUBLE PINK; Rosa OSO EASY PEASY®; Rosa

Opposition No. 91291336
- 19 -
total in the mid-seven figures.51 Mr. Deppe also provided revenue figures for these
same products, but what appears to be a spreadsheet is split across multiple pages
without sufficient columns and headings (and not summarized in testimony or in
Opposer’s brief). Because we found the numbers difficult (if not impossible) to
accurately track and total, we give the data less probative weight.52 To the extent the
numbers are probative, again we have no basis of comparison with similar products.53
Raw figures, unless they are extraordinarily large – which is not the case with
Opposer’s numbers – are not sufficient by themselves to establish that a mark is
strong. See Fossil, Inc. v. Fossil Grp., No. 91098191, 1998 TTAB LEXIS 388, at *20
(citing Gen. Mills Inc. v. Health Valley Foods, No. 91076303, 1992 TTAB LEXIS 37,
at *22-23).
We conclude that Opposer has not established that it is entitled to a broadened
scope of protection of its pleaded OSO EASY or OSO EASY PEASY marks. The fifth
Dupont factor is neutral.
OSO EASY® PINK CUPCAKE; Rosa OSO EASY® FRAGRANT SPREADER; Rosa OSO
EASY® PAPRIKA Rosa OSO EASY® PEACHY CREAM; Rosa OSO EASY® STRAWBERRY
CRUSH Rosa OSO EASY® HONEY BUN; Rosa OSO EASY® MANGO SALSA; and Rosa
OSO EASY® HOT PAPRIKA®.
51 14 TTABVUE 3 (confidential).
52 Id. at 5-10.
53 Applicant also made of record its own unverified supplemental interrogatory responses
with “Knockout Family Revenues,” including “Easy-Beezy Revenues.” 19 TTABVUE 112
(Jones Decl. Exh. Q, public); 20 TTABVUE 12 (confidential Exh. Q)) This was improper. 37
C.F.R. § 2.120(k). No witness verified the truth of these responses during trial. See Icon
Health & Fitness, Inc. v. Eifit LLC, No. 91264393, 2022 TTAB LEXIS 119, at *14 (Trademark
Rule 2.120(k) does not preclude a party’s offering of its interrogatory response as an exhibit
to trial testimony regarding veracity of responses). We have not considered these responses;
but even if we had, it has limited probative value because the data is not limited to U.S. sales.
20 TTABVUE 10 (Exh. Q).

Opposition No. 91291336
- 20 -
2. Sixth Factor: Conceptual and Commercial Strength or
Weakness of Opposer’s Marks
“There are two prongs of analysis for a mark’s strength under the sixth factor:
conceptual strength and commercial strength.” Spireon, 71 F.4th at 1362 (internal
citations omitted)); accord, Made in Nature, 2022 TTAB LEXIS 228, at *24.
a. Conceptual Strength or Weakness
Conceptual strength, or inherent strength, is a measure of a mark’s
distinctiveness, ranging from generic to fanciful. Two Pesos, Inc. v. Taco Cabana, Inc.,
505 U.S. 763, 768 (1992). Because Opposer’s OSO EASY and OSO EASY PEASY
marks issued on the Principal Register without a claim of acquired distinctiveness,
the marks are presumed to be inherently distinctive as to the goods listed in the
registration. 15 U.S.C. § 1057(b); Made in Nature, 2022 TTAB LEXIS 228, at
*24 (citing Tea Bd. of India v. Republic of Tea, Inc., No. 9118587, 2006 TTAB LEXIS
330, at *62 (“A mark that is registered on the Principal Register is entitled to all
Section 7(b) presumptions including the presumption that the mark is distinctive and
moreover, in the absence of a Section 2(f) claim in the registration, that the mark is
inherently distinctive for the goods.”)).
Opposer asserts that its OSO EASY marks are “clearly arbitrary as applied to live
plants,” while inconsistently conceding that the marks “convey a sense of ease….”54
Opposer argues in the alternative that “[e]ven if the EASY element of Opposer’s
marks is deemed to carry a double entendre by also suggesting that Opposer’s plants
54 13 TTABVUE 19-20.

Opposition No. 91291336
- 21 -
are low-maintenance, that still renders the mark, at worst, suggestive; it is not a
descriptive element.”55 Opposer also made of record evidence from Dictionary.com’s
slang dictionary regarding the meaning of the phrase “easy peasy lemon squeezy” as
“a playful way to describe a task or activity as extremely easy or simple to perform
…. an elaboration on easy-peasy, likewise meaning ‘extremely easy or simple.’”56
Applicant counters that OSO EASY and OSO EASY PEASY describe Opposer’s
plants as “EASY or OSO EASY to grow and maintain. While [the marks] undoubtedly
have some distinctive value on the whole, their use of EASY is highly suggestive and
conceptually weak.57 Applicant also made of record evidence it claims demonstrates
that third parties use EASY with a normally understood and well-recognized
descriptive or suggestive meaning as to live plants and related goods.
First, Applicant provided abstracted search results from the USPTO Trademark
Search database, showing 108 active EASY-formative registrations within
international class 31 (natural agriculture products).58 An excerpt is shown below:
55 Id. at 20.
56 Id. at 89-91 (Exh. B-5). A note to the entry indicates that “This is not meant to be a formal
definition of easy peasy lemon squeezy like most terms we define on Dictionary.com, but is
rather an informal word summary that hopefully touches upon the key aspects of the
meaning.” Id. at 91. We accept the entry for this limited purpose.
57 19 TTABVUE 11.
58 Id. at 12; id. at 49-63 (Exh. C).

Opposition No. 91291336
- 22 -
Third-party registrations may be entitled to some weight to show the meaning of
a mark, or a portion of a mark, in the same manner as a dictionary definition. See
Spireon, 71 F.4th at 1363 (existence of third-party registrations for similar goods can
bear on a mark’s conceptual strength by showing that an element common to both
opposer’s and applicant’s marks has a normally understood and well-recognized
descriptive or suggestive meaning). But “merely listing third-party registrations does
not make them of record.” In re ZeroSix, LLC, No. 88981832, 2023 TTAB LEXIS 209,
at *1; see also TBMP § 704.03(b)(1)(B) (“[A] party may not make a third-party
registration of record simply by introducing a list of third-party registrations that
includes it … or by referring to the registration in its brief or pleading.”).

Opposition No. 91291336
- 23 -
Applicant’s exhibit is more than a list: it includes serial number, mark, status
(live), owner name, and a truncated list of goods for each search result (though some
elements are obstructed).59 Although this is more information than a mere list of
registrations, the exhibit does not include enough information to be highly probative.
Because the list does not include all of the goods, register, filing basis, disclaimers,
claims of acquired distinctiveness, and other relevant information, “we do not know
whether the listed registrations are relevant.” In re Peace Love World Live, LLC, No.
86705287, 2018 TTAB LEXIS 220, at *17 n.17 (citing, inter alia, Nat’l Fidelity Life
Ins. v. Nat’l Ins. Trust, 1978 TTAB LEXIS 59, at *9 n.5 (list of registrations without
goods and services and other relevant information “has no probative value”)); see also
Edom Labs. Inc. v. Licher, No. 91193427, 2012 TTAB LEXIS 81, at *11-12 (“We
cannot determine from a mere listing like this the nature of the goods or services for
which these purported marks have been applied-for or registered and many of the
marks themselves appear to contain substantial additional matter.”). For example,
in Made in Nature, 2022 TTAB LEXIS 228, at *30, the Board discounted third-party
registrations not based on use in commerce, but rather issued under Trademark Act
Sections 44(e) or 66(a), 15 U.S.C. §§ 1126(e) or 1141f(a), and registered for less than
five years. Because Applicant’s printout does not display filing basis, we cannot
evaluate the probative value of the listed registrations.
59 The exhibit does not show registration numbers, but it does indicate that the marks are
“live” and “registered.” id. at 49-63 (Exh. C).

Opposition No. 91291336
- 24 -
Moreover, from what we can see, many of these registrations, which cover both
“easy” and “EZ” marks, do not concern live plants. Instead, they recite goods such as
fresh foods; mulch; plant and grass seed; insect larvae; wood shavings; processed
fruits; live animals; fertilizers; pet, bird, and livestock treats, food, and feed;
chemicals; prepared meals; medicated animal feed; cat litter; websites; agricultural
and forestry products; unprocessed cocoa; and animal feeders.60 We can see “live
plants” or legally identical or overlapping goods in twenty-one of the 108 listed third-
party registrations.61
Applicant also made of record, under Mr. Jones’ declaration, certificates of
registration based on use in commerce for several third-party marks including the
term EASY, including five of the registrations referenced above and listed in note 61
60 Id.
61 Id. These are: BLOOMIN’ EASY (live plants); LIVIN’ EASY (live plants); E3 EASY WAVE
(live plants, excluding roses and wheat); EASY WAVE (live petunia plants); EASY STREET
(lacebark elm trees); EASY BLOOM (live plants); EASY TROPICS (live plants and flowers);
EASY ELEGANCE (live plants, namely, roses); EASY-TO-LOVE (live flowering plants,
namely rose plants); EASY DOES IT (live plants, namely, roses); ORCHIDS ARE EASY (live
flowers and living plants, namely, orchids); EASY TO GROW in standard characters and
design (live ornamental perennial plants); EASY TO PLEASE (live plants); GARDENS
MADE EASY (live plants); TAKE IT EASY (live plants); EASY TO GROW BULBS (live
ornamental perennial plants); EZ RIDER (live plants); EZPLUG (live plants); PLANTEASY
(live plants); and EZ START (live trees and plants). We have excluded Applicant and
Opposer’s registrations.
Five of the registrations, for EASY-TO-LOVE, EASY DOES IT, LIVIN’ EASY, EASY TO
PLEASE, and TAKE IT EASY, appear to be owned by one entity, Early Morning LLC. The
three EASY TO GROW registrations are owned by EASY TO GROW BULBS, LLC. Two
registrations for E3 EASY WAVE and EASY WAVE are owned by Ball Horticultural
Company.

Opposition No. 91291336
- 25 -
(EASY ELEGANCE, EASY DOES IT, LIVIN’ EASY, BLOOMIN’ EASY), and the
following:62
• Reg. No. 6028437 for for “fertilizers” in International
Class 1;
• Reg. No. 5247624 for EASY PEEZY for “Wood shavings for animal
bedding for absorbing chemicals and eliminating odors” in
International Class 31.
We do not consider the registrations for fertilizers or wood shavings to be
probative because the goods are meaningfully different from the live plants at issue
here. Apex Bank v. CC Serve Corp., 156 F.4th 1230 (Fed. Cir. 2025) (“When the Board
has already made a factual finding that the [goods] are highly similar—in fact,
partially legally identical—in its analysis of the second DuPont factor … the Board
should retain the same scope in its consideration of similarity under the other
factors”). The remaining evidence is quite imperfect for the reasons we point out
above, but generally support the conclusion that EASY is highly suggestive of the
effortlessness of growing and maintaining live plants, and thus conceptually weak.
62 19 TTABVUE 69-88 (Jones Decl. Exhs. F-L). Where, as here, third-party registrations are
offered merely to show that they issued, a plain copy of the registration is sufficient. See
Merritt Foods Co. v. Americana Submarine, No. 91060795, 1980 TTAB LEXIS 80, at *3
n.16 (a party who wishes to rely upon third-party registrations need only provide plain copies
thereof); see also TBMP § 704.03(b)(1)(B) and cases cited therein. But doing so – and not also
attaching current status and title (e.g., TSDR printouts) – diminishes the value of the
evidence and increases our burden in reviewing it. For example, based on Applicant’s
representations (see 19 TTABVUE 8), we surmise that some of the third-party registrations
were assigned (e.g. from Weeks Wholesale Rose Grower, Inc., which appears on the
registration certificates, to Early Morning LLC, which appears on the trademark search
results), as we summarize above in note 61. The registration for BLOOMIN’ EASY is listed
as owned by Bloomin’ Easy Plants, Inc. in the search listing, and Van Belle Nursery Inc. in
the certificate of registration, but the application serial numbers are the same.

Opposition No. 91291336
- 26 -
Applicant also made of record an excerpt from W. Atlee Burpee Company’s website
for an “Easy Peasy” pea plant.63 Extensive third-party use may indicate conceptual
weakness of a mark or a portion thereof. Juice Generation Inc. v. GS Enters. LLC,
794 F.4th 1334, 1339 (Fed. Cir. 2015). A single use of EASY PEASY does not rise to
this level, but tends to support the registration evidence (imperfect as it is) as to the
conceptual weakness of EASY.
In sum, we find that Opposer’s pleaded marks OSO EASY and OSO EASY PEASY,
taken as a whole, are inherently distinctive, although their conceptual strength is
somewhat limited by the conceptual weakness of the term EASY as it pertains to the
ease of growing and maintaining the shrubs. See Sock It to Me, 2020 TTAB LEXIS
201, at *30 (finding SOCK IT TO ME inherently distinctive as a whole, although its
strength is somewhat limited by the term SOCK which is generic for socks).
b. Commercial Strength or Weakness
As to commercial weakness, we cannot consider Applicant’s third-party
registration evidence because the “probative value of third-party trademarks depends
entirely upon their usage.” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1771, 396 F.3d 1369, 1373 (Fed. Cir. 2005). “[W]here the ‘record includes
no evidence about the extent of [third-party] uses … the probative value of this
evidence is thus minimal.” Id. There is no evidence of actual use as to any of the third-
party registrations. As to the use of the “Easy Peasy” brand pea plant above,64 a single
63 19 TTABVUE 36 (Jones Decl. ¶ 14); id. at 89-91 (Jones Decl. Exh. M).
64 See text accompanying note 63.

Opposition No. 91291336
- 27 -
third-party use also is insufficient to show commercial weakness of a mark. Juice,
794 F.3d at 1339; Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v.
New Millenium Sports, S.L.U., 797 F.3d 1363, 1373-74 (Fed. Cir. 2015).
We conclude that the pleaded marks have some conceptual weakness due to use
of the term EASY, and are of average commercial strength. We accord the pleaded
marks slightly less than the average scope of protection due to inherently distinctive
marks, which weighs against likelihood of confusion.
B. Second and Third Factors: Similarity or Dissimilarity of the
Goods and Channels of Trade
We next turn to the second and third DuPont factors addressing the similarity or
dissimilarity of the goods and channels of trade. The goods need not be identical, but
need only be “related in some manner and/or if the circumstances surrounding its
marketing are such that they could give rise to the mistaken belief that they emanate
from the same source.” Coach Servs., 668 F.3d at 1369.
Our assessment focuses on the identification of goods in Applicant’s challenged
application, “live plants” in Class 31. and Opposer’s registered marks OSO EASY for
“live plants” and OSO EASY PEASY for “live plants excluding barley and peas in any
form.” We must “give the [goods] identified in the application its full scope in our
analysis of the second DuPont factor.” In re OSF Healthcare Sys., No. 88706809, 2023
TTAB LEXIS 353, at *11 (citing In re Country Oven, Inc., No. 87354443, 2019 TTAB
LEXIS 381, at *10-11).

Opposition No. 91291336
- 28 -
Applicant concedes “the goods in question (factor 2) and trade channels (factor 3)
are identical.”65 On its face, Applicant’s broadly-described live plants is identical to
Opposer’s live plants and includes live plants other than barley and peas. We
conclude that the goods are identical and overlapping.
We also may presume that the channels of trade and classes of purchasers for
those goods also overlap. 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); Am. Lebanese Syrian Assoc. Charities Inc. v. Child Health Rsch. Inst., No.
91190361, 2011 TTAB LEXIS 260, at *14. These DuPont factors weigh in favor of
likelihood of confusion.
C. First Factor: Similarity or Dissimilarity of the Marks
Turning next to the first DuPont factor, we must compare Applicant’s mark to
Opposer’s marks “in their entireties as to appearance, sound, connotation and
commercial impression.” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005) (quoting DuPont, 476 F.2d at
1361). “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 *4, aff’d
mem., 777 F. App’x 516 (Fed. Cir. 2019)); accord Krim-Ko Corp. v. Coca-Cola Bottling
65 19 TTABVUE 22.

Opposition No. 91291336
- 29 -
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).
“While the marks must be considered in their entireties, ‘in articulating reasons
for reaching a conclusion on the issue of confusion, there is nothing improper in
stating that, for rational reasons, more or less weight has been given to a particular
feature of a mark, provided the ultimate conclusion rests on consideration of the
marks in their entireties.’” Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021
TTAB LEXIS 464, at *39 (quoting In re Detroit Athletic Co., 903 F.3d 1297, 1305 (Fed.
Cir. 2018)).
“Similarity is not a binary factor but is a matter of degree.” In re St. Helena Hosp.,
774 F.3d 747, 752 (Fed. Cir. 2014) (citation omitted). “The proper test is … 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.” In re i.am.symbolic, llc, 866 F.3d 1315, 1323 (Fed. Cir. 2017) (citation
omitted); see also Phillips Petroleum Co. v. Knox Indus. Corp., 277 F.2d 945, 947
(CCPA 1960) (“This issue is whether the marks are confusingly similar, not whether
they are identical.”) (citation omitted).
In making these comparisons, we keep in mind our findings above that the goods
and channels of trade overlap under the second and third DuPont factors,66 reducing
the degree of similarity between the marks necessary to conclude that there is a
likelihood of confusion. Viterra, 671 F.3d at 1360; In re Mighty Leaf Tea, 601 F.3d
66 See Section V(B), supra

Opposition No. 91291336
- 30 -
1342, 1348 (Fed Cir. 2010). We also keep in mind our finding under the sixth DuPont
factor that Opposer’s pleaded marks have some conceptual weakness due to use of
the term EASY.67
Applicant’s mark is EASY BEE-ZY KNOCK OUT. Opposer’s marks are OSO
EASY and OSO EASY PEASY. Opposer argues that “EASY PEASY” and “EASY
BEE-ZY” have highly similar commercial impressions in that the terms sound nearly
identical, differing only in the “barely distinguishable ‘p’ and ‘b’ sounds at the
beginning of the second words.”68 Opposer argues that relevant consumers pronounce
the letter string OSO, and take it to mean, “oh so”, resulting in marks pronounced
“oh so easy” and “oh so easy peasy.”69 Opposer contends that the marks are similar in
meaning because EASY BEE-ZY is an “intentional play on the popular (and already
playful) phrase ‘easy peasy.’ ‘Easy Bee-zy’ has no other meaning. OSO EASY® marks
look and sound like the phrase ‘oh so easy, which conveys the same meaning as, and
a very similar ring to, ‘easy bee-zy.’” 70
67 See Section V(A), supra.
68 13 TTABVUE 14.
69 Id. at 64 (J. Deppe Decl. ¶ 8).
70 Id. at 15. In support, Opposer cites to the declarations of its witnesses, all of which use
nearly identical language to express various opinions about similarities of the marks and
likelihood of confusion. See 12 TTABVUE 90 (D. Deppe Decl. ¶¶ 9-12); id. at 93 (Wood Decl.
¶¶ 8-11); 13 TTABVUE 71-73 (J. Deppe Decl. ¶¶ 28-34). Opposer terms these individuals
“industry experts” and says they are “highly knowledgeable in the gardening and nursery
industry” 13 TTABVUE 8 n.3, 18. We have not considered testimony to the extent it concerns
matters solely in the Board’s purview. Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc.,
No. 92050879, 2013 TTAB LEXIS 347, at *13, aff’d mem., 565 Fed. Appx. 900 (Fed. Cir. 2014)
(“we have disregarded any opinion testimony regarding the ultimate disposition of the claims
asserted herein”); Edwards Lifesciences Corp. v. VigiLanz Corp., No. 91154210, 2010 TTAB
LEXIS 84, at *3 (“[T]he Board is responsible for determining whether the marks are similar,

Opposition No. 91291336
- 31 -
Opposer also claims that OSO in its pleaded marks and KNOCK OUT in
Applicant’s mark are used by the parties to indicate entire product lines, and so it is
the other components of the marks (Opposer’s EASY PEASY and Applicant’s EASY
BEE-ZY) that a customer will associate with particular plants within those lines.71
Opposer provides evidence that Applicant sometimes uses EASY BEE-ZY without the
term KNOCK OUT.72 Finally, Opposer argues that consumers may view Applicant’s
mark as the “KNOCK OUT” version of OSO EASY PEASY.73
Applicant counters that any strength in Opposer’s marks comes from the leading
term OSO: “Where a party consistently uses the same first word to denote a family of
products, the first word takes on heightened importance simply because consumers
will notice it first …. In sum, the primary source identifier for [Opposer’s] marks is
the OSO prefix, which dominates the overall impression of its various marks.”74
Applicant also contends that the subject mark EASY BEE-ZY KNOCK OUT is
distinguished by the following phrase KNOCK OUT.75 According to Applicant,
KNOCK OUT is conceptually strong, because it is “at least suggestive, if not
arbitrary,” as applied to roses.76 Further, Applicant argues “[t]he overall impression
and we will not substitute the opinion of a witness, even an expert witness, for our evaluation
of the facts.”).
71 13 TTABVUE 16.
72 Id.
73 Id.
74 19 TTABVUE 18. Despite Applicant’s reliance on “families of marks,” we find below that
neither Opposer nor Applicant pleaded or proved a family of marks. See Section V(F), infra.
75 19 TTABVUE 24.
76 Id. at 19.

Opposition No. 91291336
- 32 -
of consumers being directed to KNOCK OUT more than EASY BEE-ZY is also
supported by the way the marks are used in commerce,” with KNOCK OUT in large
print on the pot and EEZY BEE-ZY KNOCK OUT “constrained to the much smaller
plant tag.”77
In addition, Applicant explains that the connotation of the marks is different:
The OSO EASY family, including OSO EASY PEASY,
connote[s] that the subject roses are “oh so easy” to grow
and maintain. The EASY BEE-ZY KNOCK OUT mark, on
the other hand, highlights the ease of attracting pollinators
with this new addition to Conard-Pyle’s well-known
KNOCK OUT line of roses. While consumers will no doubt
appreciate that both make their gardening easier in some
way, there is no likelihood that they will be confused as to
the source of the roses.78
We turn to a comparison of the marks. As an initial matter, we must compare the
marks as they appear in the registrations and application, and not on any actual use
such as tags or labels. See In re Aquitaine Wine USA, LLC, No. 86928469, 2018 TTAB
LEXIS 108, at *11. All of the marks are in standard characters, which means they
may be portrayed in any “any particular font style, size, or color.” id. at *13 (quoting
Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a)).
The obvious similarities are the shared term EASY in the three marks at issue,
and the rhyming nature of EASY BEE-ZY and EASY PEASY in Applicant’s mark and
one of Opposer’s marks. There are, however, obvious points of difference in that the
77 Id. at 20; see also id. at 32 (Watkins Decl. ¶ 12).
78 Id. at 21.

Opposition No. 91291336
- 33 -
marks are constructed differently with EASY as the first term in Applicant’s mark
and KNOCK OUT at the end, and OSO as the first term in both Opposer’s marks.
Opposer’s intent that OSO EASY be pronounced as, or meaning, “oh so easy,” is
not determinative. StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 1332
(Fed. Cir. 2014) (“There is no correct pronunciation of a trademark that is not a
recognized word.”) (citation omitted); Viterra, 671 F.3d at 1367 (“[T]here is no correct
pronunciation of a trademark, and consumers may pronounce a mark differently than
intended by the brand owner.”) (citation omitted). But we think that consumers would
readily recognize the marks OSO EASY and OSO EASY PEASY in this way and
Applicant does not disagree.79 Opposer’s advertising supports this connotation,
boasting that slightly less than the average scope of protection due to inherently
distinctive marks its rose bushes have the “ability to thrive with ease.”80
The phrases “oh so easy” and “oh so easy peasy” are short slogans, and EASY
PEASY rhymes. A mark may be unitary (that is, it creates a commercial impression
separate and apart from any unregistrable component) where it is, inter alia, a slogan
that is not itself merely descriptive or composed of sound patterns such as alliteration
and rhyming. See TMEP §§ 1213.05(b)(i), 1213.05(c), and 1213.05(e) and cases cited
therein. We conclude that the OSO EASY and OSO EASY PEASY marks are
79 See 19 TTABVUE 15 (“[Opposer’s marks sound like ‘oh so easy’”).
80 12 TTABVUE 6, 15, 20, 33, 35, 37, 42, 44; 15 TTABVUE 57, 126, 128, 130, 132, 134, 136,
141, 148, 151, 153.

Opposition No. 91291336
- 34 -
inseparable unitary phrases with an unusual spelling of “oh so,” both imparting to
the consumer that growing and caring for the plants is very easy.81
By contrast, Applicant’s mark begins with the phrase EASY BEE-ZY, which,
despite some phonetic similarity to a portion of Opposer’s unitary marks, ends with
the incongruous phrase KNOCK OUT. The phrase EASY BEE-ZY appears to be a
play on words with either “easy peasy” or another well-known saying with similar
connotation, “easy breezy”. But it includes a hyphen setting off BEE and ZY, and so
the mark specifically directs consumers to understand that the shrubs attract bees
as pollinators. Mr. Watkins testified:
[Applicant] developed the rose known as EASY BEE-ZY
KNOCK OUT in 2014. We later held an internal survey to
select the name. The EASY BEE-ZY name was selected to
convey to consumers that it is a yellow rose that attracts
pollinators. We chose to include the hyphen in BEE-ZY to
further highlight the word “bee” within BEE-ZY as a way
to further connote bees and therefore other pollinators in
consumers’ minds.82
Applicant’s advertising supports this connotation:
• “Easy Bee-zy Knock Out: A Haven for Pollinators Transform your
garden into a haven for pollinators with Easy Bee-zy Knock Out.
Boasting a riot of very bright, yellow blooms, this variety not only
captivates the eye but also attracts bees and butterflies,
contributing to a thriving ecosystem right in your own backyard.
With its disease resistance and easy maintenance, Easy Bee-zy
Knock Out is the perfect choice for both seasoned gardeners and
beginners.”83
81 Neither registration for Opposer’s pleaded marks includes a disclaimer of “easy,”
supporting our finding that the marks function as unitary phrases.
82 19 TTABVUE 32 (Watkins Decl. ¶ 15).
83 12 TTABVUE 139.

Opposition No. 91291336
- 35 -
• “And from Star Roses and Plants, the family of Knockout Roses
keeps on growing. Easy Bee-zy, a rounded, bushy plant that grows
to 3-4 feet tall and 3 feet wide, rewards with single yellow flowers
that attract butterflies and bees with a light, citrus
fragrance….”84
This is not a connotation shared by Opposer’s marks. Although Opposer asserts
that its “OSO EASY PEASY® plants in particular are attractive to bees and
butterflies — just like EASY BEE-ZY KNOCK OUT roses are,”85 this meaning is not
reflected in the marks OSO EASY, OSO EASY PEASY, or any of Opposer’s other
pleaded marks as it is in Applicant’s mark.
We next turn to Applicant’s argument that consumers will likely focus on the
KNOCK OUT portion of its mark because is part of a “family” of KNOCK OUT
marks.86 The “family of marks doctrine” has been explained as follows:
A family of marks is a group of marks having a recognizable
common characteristic, wherein the marks are composed
and used in such a way that the public associates not only
the individual marks, but the common characteristic of the
family, with the trademark owner. Simply using a series of
similar marks does not of itself establish the existence of a
family. There must be a recognition among the purchasing
public that the common characteristic is indicative of a
common origin of the goods.... Recognition of the family is
achieved when the pattern of usage of the common element
is sufficient to be indicative of the origin of the family. It is
thus necessary to consider the use, advertisement, and
distinctiveness of the marks, including assessment of the
contribution of the common feature to the recognition of the
marks as of common origin.
84 Id. at 173.
85 13 TTABVUE 13.
86 We do not consider this argument under the ninth DuPont factor for the reasons stated in
Section V(F), infra.

Opposition No. 91291336
- 36 -
J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 1462 (Fed. Cir.
1991) (citations omitted). To prove the existence of a family of marks, a party “must
show that its putative family: (1) has a recognizable common characteristic; (2) that
is distinctive; and (3) that has been promoted in such a way as to create ‘recognition
among the purchasing public that the common characteristic is indicative of a
common origin of the goods or services.’” In re LC Trademarks, Inc., No. 85890412,
2016 TTAB LEXIS 577, at *24 (quoting Wise F & I, LLC v. Allstate Ins. Co., No.
91226028, 2016 TTAB LEXIS 473, at *19).
It is well-established that the family of marks doctrine is not available to overcome
a Section 2(d) refusal in an ex parte proceeding. Id. at *20 (citing cases). But the
Board has held, at least in an ex parte proceeding, that an applicant may submit a
variety of evidence in support of the acquired distinctiveness (e.g. consumer
recognition) of its mark under Trademark Act Section 2(f), which could consist of
market evidence establishing a family of marks. Id. at *22. We conclude that evidence
of a family of marks also supports the distinctiveness of a defendant’s mark, or a
portion thereof (such as KNOCK OUT), in a Section 2(d) analysis.
Neither the mere intention to create a family of marks, nor ownership of multiple
registrations containing the family term, is sufficient in and of itself to establish that
a party owns a family of marks. New Era Cap Co., 2020 TTAB LEXIS 199, at *20-21.
It requires proof of the use and advertisement of the marks in the marketplace, and
an assessment of the contribution of the common feature to the recognition of the

Opposition No. 91291336
- 37 -
marks as of common origin. J & J Snack Foods, 932 F.2d at 1463. Applicant’s Director
of Compliance, Mr. Watkins, testified:
• Applicant’s KNOCK OUT brand of roses is the company’s premier
product line and is the largest rose brand in the industry.
• The original KNOCK OUT rose variety was developed and tested for
nearly a decade before it was released in 2000. That year, it was
named an All-America Rose Selections winner, the most prestigious
award in the industry.
• Applicant developed the KNOCK OUT name to convey to the public
that these roses were resilient, with excellent beauty throughout the
blooming season.
• Consumers now know the KNOCK OUT name and seek it out when
looking to purchase easy-to-maintain, beautiful roses.
• The KNOCK OUT rose was the #1 seller in the rose industry from its
launch until about 2014, when it was surpassed by the DOUBLE
KNOCK OUT – another rose developed between Conard-Pyle and the
breeder of the original KNOCK OUT.
• More than 100 million KNOCK OUT roses have been sold since its
debut.
• Since the original rose in 2000, Conard-Pyle has sold 13 varieties of
KNOCK OUT roses.
• With few exceptions, all KNOCK OUT roses are required by Conard-
Pyle’s licensing terms to be sold in the same pots, which are green
and display the words “the knock out family of roses” printed on
them, with “knock out” in larger print than the rest of the words.
• Since the original rose in 2000, Conard-Pyle has held eight federal
registrations for various KNOCK OUT marks for roses.87
87 19 TTABVUE 30-32 (Watkins Decl. ¶¶ 4, 6-14).

Opposition No. 91291336
- 38 -
The record also contains evidence that Applicant uses KNOCK OUT in
conjunction with what it advertises, both as a brand and colloquially, as a “family of
roses,” such as the website excerpt below and a picture of Applicant’s goods:88
Applicant sometimes advertises its KNOCK OUT rose varieties together, such as
in this Instagram post:89
88 See, e.g., 12 TTABVUE 125, 143; 19 TTABVUE 122; see also 12 TTABVUE 136 (Collection
identified as “The Knock Out® Family of Roses”); id. at 139 (press release mentioning “The
Knock Out® Family of Roses”); id. at 171 (brochure describing the plant as “An outstanding
addition to the Knock Out® family”); id. at 173 (advertisement stating, “And from Star Roses
and Plants, the family of Knockout Roses keeps on growing….”). Some of these exhibits are
not verified by declaration or self-authenticating as printed publications, see Trademark Rule
2.122(e), 37 C.F.R. § 2.122(e), but Applicant did not object. We rely on these materials only
for what is shown on their faces rather than their contents.
89 12 TTABVUE 138.

Opposition No. 91291336
- 39 -
And, some third parties recognize this “family” of roses, such as in this social
media post from the National Garden Bureau:
None of this testimony or evidence is limited to use in the United States, which
somewhat tempers its probative value, but it is unchallenged.90 Although we do not
think this evidence, standing alone, is sufficient for us to find the KNOCK OUT is a
“family of marks,” it generally supports Applicant’s argument that the KNOCK OUT
portion of Applicant’s mark is strong and distinctive. Conceptually, the term suggests
that the roses produced by the plants are a “knock out,” or a “a sensationally striking,
90 We have not considered Applicant’s unverified evidence of KNOCK OUT revenues in
support of this argument; but in any case, this data also was not limited to the United States
See note 53, supra.

Opposition No. 91291336
- 40 -
appealing, or attractive … thing.”91 Mr. Watkin’s unchallenged testimony supports a
finding that KNOCK OUT is commercially strong. We conclude that the inclusion of
the term KNOCK OUT in Applicant’s mark significantly contributes to the other
differences we have identified in the marks.
In sum, we find that the similarities in appearance, sound, meaning, and overall
commercial impression are outweighed by the marks’ significant dissimilarities,
particularly considering the limited scope of protection of Opposer’s OSO EASY
marks, and in spite of the similarities in goods and channels of trade. The first
DuPont factor weighs against a finding of likelihood of confusion.
D. Fourth Factor: Degree of Care in Purchasing
The fourth DuPont factor considers “‘[t]he conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.’” Stone Lion
Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (quoting
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
91 MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com/dictionary/knockout,
accessed Jan. 12, 2026). The Board may take judicial notice of dictionary definitions,
including online dictionaries that exist in printed format. In re Cordua Rests. LP, No.
85214191, 2014 TTAB LEXIS 94, at *6 n.4; see also B.V.D. Licensing Corp. v. Body Action
Design Inc., 846 F.2d 727, 728 (Fed. Cir. 1988) (“dictionaries and encyclopedias may be
consulted”).

Opposition No. 91291336
- 41 -
NARKOMED). Conversely, impulse purchases of inexpensive items may tend to have
the opposite effect. Palm Bay Imps., Inc., 396 F.3d at 1376.
Opposer argues that purchasers of live plants are not sophisticated and the
products are low cost, favoring a finding of likely confusion.92 Applicant argues that
the fourth factor should be given little weight because the target market is the public
at large.93 Alternatively, Applicant argues the factor favors a finding of no likelihood
of confusion because consumers of plants know its KNOCK OUT brand.94
The application does not contain any limitation on the channels of trade or
intended customers and, thus, the potential class of purchasers of live plants is very
broad. There is no evidence of record as to the sophistication of customers that
typically purchase live plants or what brands they know or do not know. We could
make certain assumptions, however, based on the nature and cost of the goods. The
record demonstrates that live plants, such as rose bushes, are advertised for under
twenty dollars or as much as seventy dollars, and thus some may be impulse
purchases and some may be more carefully selected.95 We see no evidence that
consumers exercise more or less than ordinary care with respect to the products at
issue. We therefore find the fourth DuPont factor to be neutral.
92 13 TTABVUE 22-24.
93 19 TTABVUE 21.
94 Id. at 22.
95 See, e.g., 12 TTABVUE 146-69 (Exh. H).

Opposition No. 91291336
- 42 -
E. Seventh and Eighth Factors: Actual Confusion
Under the seventh and eighth DuPont factors, we consider the parties’ respective
uses “such that we could make a finding as to the ‘length of time during and
conditions under which there has been concurrent use without evidence of actual
confusion.’” In re Guild Mortg. Co., No. 86709944, 2020 TTAB LEXIS 17, at *25; see
also DuPont, 476 F.2d at 1361 (identifying seventh and eighth DuPont factors as
“[t]he nature and extent of any actual confusion,” and “[t]he length of time during and
conditions under which there has been concurrent use without evidence of actual
confusion”).
Applicant argues that there is no evidence of actual confusion, and there is
reasonable opportunity for confusion to have occurred because it has offered its goods
under the EASY BEE-ZY KNOCKOUT mark since 2023.96 “A showing of actual
confusion would of course be highly probative, if not conclusive, of a high likelihood
of confusion.” Majestic Distilling Co., 315 F.3d at 1317; see also Georgia-Pacific Corp.
v. Great Plains Bag Co., 614 F.2d 757, 762 (CCPA 1980) (“Actual confusion is entitled
to great weight but only if properly proven.”). But the reverse is not true; the absence
of evidence of actual confusion, under the seventh DuPont factor, by itself is entitled
to little weight in our likelihood of confusion analysis unless there also is evidence,
under the eighth DuPont factor, that there has been a significant opportunity for
actual confusion to have occurred. Keystone Consol. Indus. v. Franklin Inv. Corp., No.
92066927, 2024 TTAB LEXIS 290, at *75-76 (citations omitted).
96 19 TTABVUE 23.

Opposition No. 91291336
- 43 -
The marks have co-existed in the marketplace at most for two years, though we
do not know exactly the extent or length of time of actual overlap in the same stores
or websites.97 We cannot determine if there has “been a reasonable opportunity for
confusion to have occurred” during the few years of possible concurrent use of the
parties’ marks. Id. at *63 (citing Citigroup Inc. v. Cap. City Bank Grp., Inc., No.
91177415, 2010 TTAB LEXIS 40, at *50. Therefore, we find that the seventh and
eighth DuPont factors are neutral in our analysis of likelihood of confusion.
F. Ninth Factor: Variety of Goods
The ninth DuPont factor considers “[t]he variety of goods on which a mark is or is
not used (house mark, “family” mark, product mark).” DuPont, 476 F.2d at 1361. In
Applicant’s view, “[e]ach side has a family of marks implicated in this case. For each
side, the presence of that family decreases, if not eliminates, the likelihood of
confusion.”98 The ninth DuPont factor, however, only concerns Opposer’s mark (and
we have addressed the argument relating to Applicant’s “family of marks” above
under the first factor).99
In a surprising twist, Applicant argues that Opposer has a family of OSO EASY
marks.100 Opposer did not plead or attempt to prove a family of marks. See Wise F&I,
LLC v. Allstate Ins. Co., No. 91226028, 2016 TTAB LEXIS 473, at *12 (a plaintiff
97 We note that many of Applicant’s admissions and interrogatory responses are of little
probative value when the requests (including definitions and exhibits) have not been
supplied.
98 19 TTABVUE 24.
99 See supra Section V(C).
100 19 TTABVUE 18-19.

Opposition No. 91291336
- 44 -
must plead ownership of a family of marks in its complaint in order to rely on the
marks as a family as a basis for sustaining the opposition at trial or in a motion for
summary judgment). We certainly would not find that a party owns a family of marks
where that party has not argued that it has one. See TPI Holdings Inc. v.
Trailertrader.com LLC, No. 92064976, 2018 TTAB LEXIS 121, at *37 (plaintiff bears
the burden of proof to prove family of marks).101
We conclude that the ninth DuPont factor is neutral.
G. Eleventh Factor: Extent to Which Applicant Has a Right to
Exclude Others from Use of its Mark
Applicant argues under the eleventh DuPont factor that it can exclude others from
using its mark because Opposer has “allowed” Applicant to build goodwill in another
“line of products,” namely products under its registered mark GROUNDCOVER
ROSES MADE EASY.102 However, this argument does not suffice to establish that
Applicant has any significant right to exclude others from use of a different mark for
the same goods merely because the marks share the term “easy”. We find this DuPont
factor neutral.
101 Even if we did consider it, the family of marks doctrine could be relevant under the ninth
factor dispute in at least one of two ways, neither of which is present here. First, it could
affect the analysis of the similarity of goods. New Era Cap Co., 2020 TTAB LEXIS 199, at
*18. But here, the goods are legally identical. Second, where the family comprises a common
prefix in marks, a junior user may find it harder to argue that the difference in the ‘non-
family’ part of its mark weighs against confusion because consumers are accustomed to
seeing the family component together with other elements coming from one source (the senior
user). Id. Applicant’s mark does not use the OSO EASY prefix and Opposer only has one
EASY PEASY-formative mark.
102 19 TTABVUE 25-26.

Opposition No. 91291336
- 45 -
H. Thirteenth DuPont Factor: Any Other Established Fact
Opposer agues that we should consider that Applicant was aware of Opposer’s
OSO EASY marks under the thirteenth DuPont factor, “any other established fact
probative of the effect of use,” which includes any evidence of a party's bad faith in
adopting a mark. DuPont, 476 F.2d at 1361. However, it is settled that “an inference
of ‘bad faith’ requires something more than mere knowledge of a prior similar mark.”
QuikTrip West, Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 1036 (Fed. Cir. 2021)
(quoting Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1565 (Fed. Cir.
1987)). This factor is neutral.
I. Summary of the DuPont Factors
We must “weigh the DuPont factors used in [our] analysis and explain the results
of that weighing.” In re Charger Ventures LLC, 64 F.4th 1375, 1383-84 (Fed. Cir.
2023). “In any given case, different DuPont factors may play a dominant role,” and
the “weight given to each factor depends on the circumstances of each case.”
Id. (citation omitted).
Weighing the DuPont factors for which there is evidence and argument in this
proceeding, Opposer’s mark are accorded slightly less than the average scope of
protection due to inherently distinctive marks under the sixth factor, which weighs
against likelihood of confusion. Although the goods are identical under the second
factor, which weighs heavily in favor of likelihood of confusion, and trade channels
overlap under the third factor which also weighs in favor of likelihood of confusion,

Opposition No. 91291336
- 46 -
the parties’ marks are dissimilar under the first factor, which weighs heavily against
a finding of likelihood of confusion. The remaining DuPont factors are neutral.
In this case, we find the dissimilarity of the marks and the slight weakness of
Opposer’s marks to outweigh the other factors. Accordingly, we find that Opposer has
not proven by a preponderance of the evidence that confusion between its marks OSO
EASY and OSO EASY PEASY and Applicant’s mark EASY BEE-ZY KNOCK OUT is
likely.
Decision
The opposition to Serial No. 97912429 is dismissed.