Sueros y Bebidas Rehidratantes, S.A. de C.V. v. Bebidas Electromas S.A. de C.V.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: March 23, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Sueros y Bebidas Rehidratantes, S.A. de C.V.
v.
Bebidas Electromas S.A. de C.V.
_____
Opposition No. 91285906
_____
Cindy A. Villanueva, Andrea L. Arndt and John L. Krieger of Dickinson Wright
PLLC, for Sueros y Bebidas Rehidratantes, S.A. de C.V.
Alexander S. Lazouski of Lazouski IP LLC,
for Bebidas Electromas S.A. de C.V. _____
Notice of Correction
By the Board:
On March 10, 2025, the Board mailed a final decision in this matter. In has since
come to the Board’s attention that the decision incorrectly refers to the disclaimers
in Opposer’s pleaded Registration Nos. 4222726 and 4717232 as being for the term
“ELECTROLIT” (see pages 2-3 and 24 of the original decision) rather than the term
“ELECTROLYTE.” These errors are corrected in the attached revised decision. The
time for filing an appeal or commencing a civil action regarding the Board’s decision
continues to run from the mailing date of the March 10, 2026 decision. See Trademark
Rule 2.145(d), 37 C.F.R. § 2.145(d).

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: March 10, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Sueros y Bebidas Rehidratantes, S.A. de C.V.
v.
Bebidas Electromas S.A. de C.V.
_____
Opposition No. 91285906
_____
Cindy A. Villanueva, Andrea L. Arndt and John L. Krieger of Dickinson Wright
PLLC, for Sueros y Bebidas Rehidratantes, S.A. de C.V.
Alexander S. Lazouski of Lazouski IP LLC,
for Bebidas Electromas S.A. de C.V.
_____
Before Heasley, Lebow and Elgin,
Administrative Trademark Judges.
Opinion by Lebow, Administrative Trademark Judge:
Applicant, Bebidas Electromas S.A. de C.V., applied to register the standard-
character mark ELECTROMAS on the Principal Register for
Food supplements (International Class 5); Fruit drinks; Mineral water;
Preparations for making non-alcoholic fruit-flavored beverages
(International Class 32); and Alcoholic beverages containing fruit;
Alcoholic beverages, except beer; Alcoholic cocktail mixes; Prepared
alcoholic cocktail (International Class 33).1
1 Application Serial No. 97508014 (“the Application”) was filed on July 18, 2022 under Section
1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide
intention to use the mark in commerce.

Serial No. 98708838
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Opposer, Sueros y Bebidas Rehidratantes, S.A. de C.V., opposes registration of
Applicant’s mark, alleging likelihood of confusion under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), and dilution by blurring under Section 43(c) of
the Trademark Act, 15 U.S.C. § 1125(c). In support of these claims, Opposer relies on
prior common law and federal trademark rights in the following marks registered on
the Principal Register:2
Electrolyte replacement solution for oral
rehydration (International Class 5); Oral
rehydration beverages, namely, sports drinks
(International Class 32).3
(“ELECTROLYTE”
disclaimed)
Electrolyte replacement solutions for oral
rehydration (International Class 5); Oral
rehydration beverages, namely, sports drinks
containing electrolytes (International Class 32).4
2 1 TTABVUE. Opposer also pleaded ownership of the registered marks ELECTROLIFE
(Registration No. 6763040), ELECTROLIFE and Design (Registration No. 6763041),
ELECTRO LIFE (Registration Nos. 5082957 and 6784324), and ELECTROSHOT
(Registration No. 7135267), but forfeited reliance on those marks in its brief: “[Opposer] is
now only basing this Opposition on its ELECTROLIT and ELECTRO ZERO marks.”
16 TTABVUE 8 n.1.
Citations in this opinion to the briefs and other materials in the record 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.
3 Registration No. 4222726 (“the ’726 Registration”), issued October 9, 2012; renewed. “The
mark consists of the word ‘ELECTROLIT’ and design. The term ‘ELECTROLIT’ is blue and
four liquid drops varying in lengths emanate from the letter ‘I’ in ‘ELECTROLIT’. The first
droplet extends to the second letter ‘E’ in ‘ELECTROLIT’ and is green in color, the next
droplet is orange which fades to yellow and then to orange, the third droplet is red and the
fourth is purple. Each drop also has specks of white.”
4 Registration No. 4717232 (“the ’232 Registration”), issued April 7, 2015; renewed. This mark
is essentially the same mark in Registration No. 4222726, but contained “within three
concentric oval-shaped designs.” Color is not claimed.

Serial No. 98708838
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(“ELECTROLYTE”
disclaimed)
Electrolyte replacement solutions for oral
rehydration (International Class 5); Oral
rehydration beverages, namely, sports drinks
containing electrolytes (International Class 32).5
Applicant denied the salient allegations of the notice of opposition in its answer.6
For the reasons discussed below, we dismiss the opposition.
I. Preliminary Issues
Although Opposer filed a brief on the case,7 Applicant did not.8 Therefore,
Opposer’s subsequent filing of a reply brief9 was improper. See TBMP § 801.02(c) (“[I]f
the defendant has not filed a main brief, any reply brief filed by the plaintiff may not
5 Registration No. 4717350 (“the ’350 Registration”), issued April 7, 2015; renewed. The mark
“consists of a three-dimensional configuration of product packaging” that depicts the mark in
Registration No. 4717232.
6 5 TTABVUE. Applicant also asserted, as an affirmative defense, that “Opposer failed to
properly allege dilution by blurring,” Id. at 6, but Applicant did not argue this defense, so it
is waived. See Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., No. 92050879, 2013
TTAB LEXIS 347, at *5 n.6 (respondent’s affirmative defense of failure to state a claim not
argued in brief deemed waived), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.).
This opinion cites to the Federal Reporter (e.g., F.2d, F.3d, or F.4th) for decisions of the U.S.
Court of Appeals for the Federal Circuit and the U.S. Court of Customs and Patent Appeals;
and to LexisNexis Corporation’s LEXIS legal database for decisions of the Board.
7 16 TTABVUE.
8 “The filing of a brief on the case is optional, not mandatory, for a party in the position of
defendant.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”)
§ 801.02(b) (June 2025).
9 18 TTABVUE.

Serial No. 98708838
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be considered because there is nothing to which it could reply.”). We give it no
consideration.
Separately, we note that while Opposer pleaded ownership of the mark
ELECTROLIT in several composite forms, it did not plead ownership of a registration
for that mark in standard characters, or ownership of the mark ELECTROLIT ZERO
in any form. However, at trial, Opposer’s in-house counsel, Adrian Medina García,
testified that Opposer owns and uses the following registered marks:10
ELECTROLIT
(Supplemental
Register)
Pharmaceutical products, namely, electrolyte replacement
solutions; veterinary products, namely, dog, horse, pig, cat, bird,
and ruminant food, bacterial and bacteriological preparations
for veterinary use, chemical reagents for veterinary purposes,
enzymes for veterinary purposes, diagnostic preparations for
veterinary purposes, veterinary vaccines; hygienic products,
namely, skin cleansing solutions for medical use; dietetic
substances for medical use, namely, diet pills, diet capsules, and
diet drinks; baby food; poultices; wound dressings; dental
poultices; dental mold poultices; disinfectants for home use;
products for the destruction of harmful animals, namely,
insecticides and pesticides; fungicides; herbicides (International
Class 5); Beers; mineral waters; carbonated beverages; non-
alcoholic beverages, namely, water, flavored water; fruit
beverages and juices; syrups for making beverages
(International Class 32).11
ELECTROLIT
ZERO
(“ZERO”
disclaimed)
Dietetic beverages adapted for medical purposes; Electrolyte
drinks for medical purposes; Electrolyte replacement solutions
(International Class 5).12
10 12 TTABVUE 4-7, 108-119 (García Test. Decl., ¶¶ 5, 9-17; Exhibit 5).
11 Registration No. 4833885 (“the ’885 Registration”), issued October 13, 2015 on the
Supplemental Register; renewal pending.
12 Registration No. 6558880 (the ’880 Registration), issued November 16, 2021 on the
Principal Register based on a claim of acquired distinctiveness under Section 2(f), 15 U.S.C.
§ 1052(f), in part, as to “ELECTROLIT.”

Serial No. 98708838
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ELECTROLIT
ZERO
(“ZERO”
disclaimed)
Energy drinks; Isotonic beverages; Soft drinks (International
Class 32).13
“It is well settled that an opposer may not rely on an unpleaded claim in its brief,
and that to pursue an unpleaded claim, an opposer’s pleading must be amended under
Fed. R. Civ. P. 15(b) to assert the claim, or the claim must have been tried by express
or implied consent. Fed. R. Civ. P. 15(b)....” M/S R.M. Dhariwal (HUF) 100% EOU v.
Zarda King Ltd. & Global Tech. & Trade Marks Ltd., No. 91231033, 2019 TTAB
LEXIS 95, at *12. “Fed. R. Civ. P. 15(b) provides, in pertinent part, that when issues
not raised by the pleadings are tried by the express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the pleadings.”
Morgan Creek Prods. v. Foria Int’l Inc., No. 91173806, 2009 TTAB LEXIS 445, at *11.
Implied consent may be found “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.” Hangzhou Mengku Tech. Co. v. Shanghai
Zhenglang Tech. Co., No. 91272143, 2024 TTAB LEXIS 575, at *16 (citations
omitted).
We find that the claim of likelihood of confusion with these registered marks was
tried by the implied consent of the parties because (1) Applicant raised no objection
to Mr. García’s testimony about these additional marks and registrations owned by
13 Registration No. 6558881, issued November 16, 2021 on the Principal Register based on a
Section 2(f) claim of acquired distinctiveness, in part, as to “ELECTROLIT.”

Serial No. 98708838
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Opposer, or his provision of status and title printouts of the registrations thereof from
the USPTO’s Trademark Status & Document Retrieval database (TSDR); and
(2) Applicant was fairly apprised that such evidence was being offered by Opposer in
support of a likelihood of confusion claim based on those marks. See Time Warner
Entm’t Co. v. Jones, No. 91112409, 2002 TTAB LEXIS 462, at *2 n.2 (“Applicant has
raised no objection to opposer’s submission of and reliance upon these unpleaded
registrations. In view of applicant’s lack of objection, we find that the parties have
tried, by implied consent, any issues which arise from those additional seven
registrations, and we therefore deem the pleadings to be amended to include opposer’s
claim of ownership of those seven additional registrations.”); Boise Cascade Corp. v.
Cascade Coach Co., 1970 TTAB LEXIS 371, at *5-6 (“Generally speaking, there is an
implied consent to contest an issue if there is no objection to the introduction of
evidence on the unpleaded issue, as long as the adverse party was fairly informed
that the evidence went to the unpleaded issue.”). We deem the pleadings to be
amended to include Opposer’s reliance on the above-referenced marks in Registration
Nos. 4833885, 6558880 and 6558881.
II. The Record
The record includes the pleadings; the file of the Application by operation of
Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1); Opposer’s notice of reliance on
Applicant’s responses to certain interrogatories and requests for admission, third-
party registrations, and Internet materials;14 and the testimony declaration of
14 12 TTABVUE 135-267.

Serial No. 98708838
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Opposer’s in-house counsel, Adrian Medina García, with exhibits.15 Applicant did not
submit any evidence.16
III. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action must be established in every inter
partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d
1370, 1373-74 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 125-26 n.4 (2014)). A party in the position of plaintiff
may oppose registration of a mark when such opposition is within the zone of
interests protected by the statute, Trademark Act Section 13, 15 U.S.C. § 1063, and
the plaintiff has a reasonable belief in damage that is proximately caused by
registration of the mark. Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1071
(Fed. Cir. 2022) (citing Lexmark, 572 U.S. at 129, 132); Corcamore, LLC v. SFM, LLC,
978 F.3d 1298, 1303 (Fed. Cir. 2020).
Opposer’s entitlement to oppose registration of Applicant’s mark on the ground of
likelihood of confusion is established by its pleaded registrations, which are of record
and support a colorable claim for likelihood of confusion. See, e.g., Lipton Indus. Inc.
v. Ralston Purina Co., 670 F.2d 1024, 1029 (CCPA 1982) (reasonable belief in damage
may be established by “assert[ing] a likelihood of confusion which is not wholly
15 “García Test. Decl.,” 13 TTABVUE (confidential declaration and exhibits 6, 24 and 28);
15 TTABVUE (redacted declaration and exhibits 1-25); 14 TTABVUE (declaration exhibits
26a-31).
16 Applicant, as the defendant in this proceeding, was not required to submit evidence.
Yazhong Investing Ltd. v. Multi-Media Tech. Ventures, Ltd., No. 92056548, 2018 TTAB
LEXIS 168, at *12 n.13.

Serial No. 98708838
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without merit ….”); Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No.
91263919, 2022 TTAB LEXIS 383, at *20 (valid and subsisting pleaded registration
establishes opposer’s direct commercial interest in the proceeding and its belief in
damage) (citing Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000)).
IV. Trademark Act Section 2(d)
Section 2(d) of the Trademark Act prohibits registration of a mark that
[c]onsists of or comprises a mark which so resembles a mark registered
in the Patent and Trademark Office, or a mark or trade name previously
used in the United States by another and not abandoned, as to be likely,
when used on or in connection with the goods of the applicant, to cause
confusion, or to cause mistake, or to deceive….
15 U.S.C. § 1052(d).
In arguing likelihood of confusion, Opposer does not rely on common law rights
that are broader in scope than its pleaded registrations. We therefore do not
separately analyze Opposer’s asserted common law rights. In addition, while we
consider all of Opposer’s pleaded marks, we focus most our analysis on the composite
mark, , in the ’726 Registration because it is closest to Applicant’s
standard-character ELECTROMAS mark, and identifies goods that we find, as
discussed infra, are related to those identified in the Application.17 “[I]f confusion is
17 Although we found that Opposer’s Section 2(d) claim based on its unpleaded registration
for the standard-character mark ELECTROLIT on the Supplemental Register was tried by
the implied consent of the parties, ownership of a mark on the Supplemental Register “‘is not
evidence of ownership, validity, or the exclusive right to use’” a mark in commerce. Otter
Prods LLC v. Baseonelabs LLC, No. 91200510, 2012 TTAB LEXIS 472, at *7 (quoting In re
Bush Bros. & Co., 994 F.2d 569, 570 n.2 (Fed. Cir. 1989)). “Because the mark in Opposer’s
Supplemental Register Registration is presumed to be merely descriptive, and opposer has
introduced no evidence of use of its mark sufficient to prove that its alleged mark has

Serial No. 98708838
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likely between those marks, there is no need for us to consider the likelihood of
confusion with [Opposer’s other pleaded marks], while if there is no likelihood of
confusion between applicant’s mark and [ELECTROLIT] in [composite] form, then
there would be no likelihood of confusion with the [Opposer’s other] mark[s].” In re
Max Cap. Grp. Ltd., No. 77186166, 2010 TTAB LEXIS 1, at *5.
A. Priority
“Because Opposer relies on its asserted [ELECTROLIT composite mark] [in the
’726] registration[ ] that ha[s] been made of record, and Applicant has not challenged
[that or any other of Opposer’s pleaded] registrations by way of any cancellation
counterclaim(s), Opposer’s priority therefore is not at issue with respect to the goods
identified in its registrations.” Made in Nature, LLC v. Pharmavite LLC, No.
91223352, 2022 TTAB LEXIS 228, at *19-20 (citing King Candy Co. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 1402 (CCPA 1974)).18
acquired distinctiveness, it cannot prevail based solely on its ownership of this registration.”
Id. We similarly found that Opposer’s reliance on two unpleaded registrations for the
standard-character mark ELECTOLIT ZERO on the Principal Register was tried by implied
consent. But the term “ELECTROLIT” was disclaimed in each of those registrations, which
“is a concession that the term was at least descriptive of its goods at the time of registration.”
Sock It To Me, Inc. v. Fan, No. 91230554, 2020 TTAB LEXIS 201, at *17 n.11 (citation
omitted). Thus, Opposer’s composite mark , which has no disclaimer of
wording and is registered on the Principal Register, is closest to Applicant’s mark
ELECTROMAS for purposes of this likelihood of confusion analysis. On the other hand, for
the reasons discussed infra, when we get to issue of the strength of Opposer’s mark under
the fifth DuPont factor, we must focus on Opposer’s marks collectively.
18 Opposer need not rely its alleged prior common law use to establish priority. See
Nkanginieme v. Appleton, No. 91256464, 2023 TTAB LEXIS 64, at *4 (Board did not need to
consider common law priority because it found it sufficient to rely on the pleaded registration
in analyzing likelihood of confusion).

Serial No. 98708838
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B. Likelihood of Confusion
We base our determination under Section 2(d) on an analysis of all of the probative
facts in evidence that are relevant to the factors bearing on the likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (setting forth
factors to be considered, referred to as “DuPont factors”), cited in B&B Hardware,
Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015). See also In re Majestic Distilling
Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). “In discharging this duty, the thirteen
DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg.
Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019) (quoting In re Dixie Rests. Inc., 105 F.3d
1405, 1406 (Fed. Cir. 1997) and DuPont, 476 F.2d at 1361).
“‘Not all of the DuPont factors are necessarily relevant or of equal weight in a
given case, and any one of the factors may control a particular case.’” Naterra Int’l,
Inc. v. Bensalem, 92 F.4th 1113, 1116 (Fed. Cir. 2024) (quoting Tiger Lily Ventures
Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). “[T]he Board may
focus its analysis on dispositive factors, such as similarity of the marks and
relatedness of the goods.” See also In re i.am.symbolic, llc, 866 F.3d 1315, 1329 (Fed.
Cir. 2017) (quoting Han Beauty, Inc. v. Alberto-Culver Co. 236 F.3d 1333, 1336 (Fed.
Cir. 2001). “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.’”
In re Embiid, No. 88202890, 2021 TTAB LEXIS 168, at *10 (quoting Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976)).

Serial No. 98708838
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Opposer bears the burden of proving a likelihood of confusion by a preponderance
of the evidence. Cunningham, 222 F.3d at 951.
1. The Similarity or Dissimilarity of the Goods
We begin with second DuPont factor, which considers “[t]he similarity or
dissimilarity and nature of the goods” described in the Application and Opposer’s
Registration. DuPont, 476 F.2d at 1361. Here, we determine whether the consuming
public may perceive the respective goods of parties as “‘related enough to cause
confusion about [their] source or origin ….’” Naterra, 92 F.4th at 1117 (quoting In re
St. Helena Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014)).
The goods need not be identical or even competitive to find a likelihood of
confusion. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086 (Fed. Cir.
2000); Recot, Inc. v. Becton, 214 F.3d 1322, 1329 (Fed. Cir. 2000). “Instead, likelihood
of confusion can be found if the respective products are 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.” Coach Servs. Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 1369 (Fed. Cir. 2012) (quoting 7-Eleven, Inc.
v. Wechsler, No. 91117739, 2007 TTAB LEXIS 58, at *22).
To reiterate, the Application for ELECTROMAS identifies
• Food supplements (Class 5),19
19 A “food supplement” is “a preparation that is intended to supply a nutrient that is missing
from a diet” (https://www.collinsdictionary.com/dictionary/english/food-supplement, accessed
March 2, 2026). “The Board may take judicial notice of information from dictionaries,
encyclopedias and other standard reference works,” and we do so here. In re Info Builders
Inc., No. 87753964, 2020 TTAB LEXIS 20, at *10 n.6 (citing inter alia B.V.D. Licensing Corp.

Serial No. 98708838
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• Fruit drinks; mineral water; preparations for making non-
alcoholic fruit-flavored beverages (Class 32), and
• Alcoholic beverages containing fruit; alcoholic beverages, except
beer; alcoholic cocktail mixes; prepared alcoholic cocktail (Class
33),
and Opposer’s ’726 Registration for identifies
• Electrolyte replacement solution for oral rehydration
(International Class 5); and
• Oral rehydration beverages, namely, sports drinks (International
Class 32).
We consider each class of goods and services separately because each class in a
multi-class application or registration is, in effect, a separate application or
registration. See In re OSF Healthcare Sys., No. 88706809, 2023 TTAB LEXIS 353,
at *9-10. Registration of a class may be refused if Applicant’s mark for any of its
identified goods or services in the class is likely to cause confusion with Registrant’s
mark for any of the goods or services listed in the cited registration. Major League
Baseball Players Ass’n v. Chisena, No. 91240180, 2023 TTAB LEXIS 117, at *63-64
(“It is sufficient for a finding on likelihood of confusion that relatedness is established
for any item encompassed by the identification of goods in the application.”) (citing
DeVivo v. Ortiz, No. 91242863, 2020 TTAB LEXIS 15, at *36-37).
Before discussing the similarity or dissimilarity of the parties’ goods, it is helpful
to take judicial notice of several pertinent terms and explanations that bear on our
v. Body Action Design Inc., 846 F.2d 727, 728 (Fed. Cir. 1988) (“dictionaries and encyclopedias
may be consulted”)).

Serial No. 98708838
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understanding of respective goods. Opposer’s goods in Class 5 include an “electrolyte
replacement solution for oral hydration.” The COLLINS DICTIONARY defines
“electrolytes” as “any of certain inorganic compounds, mainly sodium, potassium,
magnesium, calcium, chloride, and bicarbonate, that dissociate in biological fluids
into ions capable of conducting electrical currents and constituting a major force in
controlling fluid balance within the body.”20 An entry from ENCYCLOPEDIA.COM
further explains that electrolytes “play a critical role in almost every metabolic
reaction in the body,” including “help[ing] [to] control water balance and fluid
distribution in the body”; that “electrolyte imbalance occurs when the concentration
of a specific electrolyte is either too high or too low”; and that “[d]ehydration is a major
cause of electrolyte imbalance,” “occur[ring] whenever water is lost from the body and
not replaced fairly quickly,” causing electrolytes to be lost too, and thus electrolyte
imbalance.”21 And ENCYCLOPEDIA.COM notes that “[i]n North America, commonly
used over-the-counter electrolyte replacements include [] sports drinks formulated to
replace electrolytes lost through sweating.”22
In addition, Class 5 of the Application identifies “food supplements.” The COLLINS
DICTIONARY defines “food supplement” as “a preparation that is intended to supply a
nutrient that is missing from a diet.”23
20 https://www.collinsdictionary.com/dictionary/english/electrolyte (accessed March 2, 2026).
21 https://www.encyclopedia.com/sports-and-everyday-life/food-and-drink/food-and-
cooking/electrolytes#H (accessed March 2, 2026).
22 Id.
23 https://www.collinsdictionary.com/dictionary/english/food-supplement, accessed March 2,
2026). We observe that Opposer’s “Oral rehydration beverages, namely, sports drinks” in
Class 32 of Opposer’s Registration also overlap with Applicant’s “electrolyte replacement

Serial No. 98708838
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To show that food supplements are related to “electrolyte replacement solution for
oral rehydration” and “oral rehydration beverages, namely, sports drinks,” Opposer
made of record printouts of approximately nineteen third-party use-based
registrations from the USPTO’s Trademark Status & Document Retrieval (TSDR)
database.24 These registrations identify goods that are the same or similar to those
identified in Classes 5 and 32 of the Application and Opposer’s Registration. “While
not evidence of the use of the marks therein, third-party [used-based or use-
maintained] registrations may serve to suggest that the parties’ goods … are of a type
which may emanate from a single source. See Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, [1267] (Fed. Cir. 2002) (evidence that ‘a single company sells the
goods and services of both parties, if presented, is relevant to a relatedness analysis’);
In re Mucky Duck Mustard Co., [No. 73603019, 1988 TTAB LEXIS 11, at *9] n.6; In
re Albert Trostel & Sons Co., [No. 74186695, 1993 TTAB LEXIS 36, at *7].” DeVivo v.
Ortiz, No. 91242863, 2020 TTAB LEXIS 15, at *38. For example:
• Registration No. 6464969 identifies “health food supplements” [as in the
Application], as well as a “powdered nutritional supplement drink mix
containing electrolytes” and an “electrolyte powdered nutritional drink
mix” [similar to the “electrolyte replacement solutions” in the Opposer’s
solution for oral rehydration” in Class 5 to the extent that the sports drinks contain
electrolytes.
24 12 TTABVUE 168-236 (Notice of Reliance, Exhibits 3-25). Opposer also submitted
additional registrations that were either cancelled or expired, or identified goods not
evidently related to Applicant’s or Opposer’s goods on their face, which we have not
considered. See i.am.symbolic, 866 F.3d at 1328 (disregarding third-party registrations for
other types of goods where the proffering party had neither proven nor explained that they
were related to the goods in the cited registration); Made in Nature, 2022 TTAB LEXIS 228,
at *31 (“A cancelled or expired registration has no probative value other than to show that it
once issued....”).

Serial No. 98708838
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Registration];25
• Registration No. 5903366 identifies “dietary food supplements,”
“mineral food supplements” and “dietary supplement drink mixes”
[similar to the Application], as well as “electrolyte drinks for medical
purposes” and “electrolyte replacement solutions” [as in Opposer’s
Registration];26
• Registration No. 6623278 identifies “food supplements” [as in the
Application], as well as “energy drinks” and “isotonic beverages” [similar
to the Registration];27
• Registration No. 6429545 identifies “enzyme food supplements,”
nutritional supplement meal replacement bars” and “nutritional
supplemental meal replacement bars for boosting energy” [similar to the
Application], as well as “electrolyte drinks for medical purposes” [similar
to Opposer’s Registration];28
• Registration No. 6070104 identifies “health food supplements” and
“nutritional supplement energy bars for use as a meal substitute for
medical purposes” [similar to the Application], as well as “electrolyte
replacement beverages for medical purposes, namely, for rehydrating
for medical purposes” [similar to Opposer’s Registration”];29 and
• Registration No. 7116506 identifies “dietary food supplements,” “health
food supplements,” “food supplements” and “fruit juices” [as in the
25 12 TTABVUE 168-70 (Notice of Allowance, Exhibit 3).
26 Id. at 174-76 (Exhibit 5).
27 Id. at 177-79 (Exhibit 6). We take judicial notice of the MERRIAM-WEBSTER’S DICTIONARY’S
definition that an “energy drink” is “a usually carbonated beverage that typically contains
caffeine and other ingredients (such as taurine and ginseng) intended to increase the
drinker’s energy,” https://www.merriam-webster.com/dictionary/energy%20drink (accessed
March 2, 2026), which overlaps with Applicant’s “fruit drinks” to the extent such drinks are
made with fruit. We also take judicial notice that an “isotonic drink,” as defined by the
MCGRAW-HILL CONCISE DICTIONARY OF MODERN MEDICINE (2002 ed.), cited in FREE
DICTIONARY BY FARLEX at https://medical-dictionary.thefreedictionary.com/isotonic+drink
(accessed March 2, 2026), is “[a] sports drink used to simply replace fluid and electrolytes lost
during prolonged exercise” or “[a] sports drink that replaces water and electrolytes and
contains either fructose or glucose polymers allowing slow release of carbohydrates for
replenishing reserves of energy consumed while exercising,” both of which are encompassed
by Registrant’s “oral rehydration beverages, namely, sports drinks.”
28 Id. at 204-06 (Exhibit 15).
29 Id. at 216-18 (Exhibit 19).

Serial No. 98708838
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Application], as well as “energy drinks containing nutritional
supplements,” “sports drinks,” “isotonic drinks” and “energy drinks” [as
in Opposer’s Registration].30
Class 32 of the Application identifies “Fruit drinks; Mineral water; Preparations
for making non-alcoholic fruit-flavored beverage.” We find that “fruit drinks” overlap
with or are otherwise related to “oral rehydration beverages, namely, sports drinks”
in Opposer’s ’726 Registration. ENCYCLOPEDIA.COM confirms that sports drinks are
formulated as electrolyte replacements, often consumed to address dehydration-
induced electrolyte imbalance. Given that sports drinks are frequently fruit-flavored
to enhance palatability, the absence of restrictions in the identifications means
Applicant’s fruit drinks could match Opposer’s goods to the extent they serve
rehydration purposes through electrolyte content. Applicant’s “preparations for
making non-alcoholic fruit-flavored beverages” also overlap with Opposer’s sports
drinks to the extent that such preparations yield fruit-flavored rehydration
beverages.
Based on the nature of the goods and the third-party registration evidence, we
find that the goods in Class 5 of the Application and Class 32 of Opposer’s
Registration are related and thus similar under the second DuPont factor. Opposer,
however, has not argued that any of its goods are related or similar to Applicant’s
alcoholic beverage goods in Class 33, and the record does not support a finding of
relatedness as to those goods.
30 Id. at 219-21 (Exhibit 19).

Serial No. 98708838
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2. The Similarity or Dissimilarity of Trade Channels and
Classes of Customers
The third DuPont factor considers the “similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. Again, we consider each
class of goods separately.
The identifications of goods in the Application and Opposer’s Registration are
unrestricted as to trade channels and consumers. We therefore presume that
Applicant’s Class 5 “food supplements” and Opposer’s Class 32 “electrolyte
replacement solution for oral rehydration” and “oral rehydration beverages, namely,
sports drinks” will travel in all usual channels of trade and to all normal potential
purchasers for such goods. i.am.symbolic, llc, 866 F.3d at 1327 (“In the absence of
meaningful limitations in either the application or the cited registrations, the Board
properly presumed that the goods travel through all usual channels of trade and are
offered to all normal potential purchasers.”) (citations omitted).
Opposer’s witness, Mr. García, testified that “the distribution and retail channels
for the [Opposer’s] products sold under the ELECTROLIT® Marks include
• the grocery channel, which includes traditional grocery stores and
supermarket stores like Kroger, Publix, Food 4 Less, Vallarta and
Albertsons/Safeway;
• the mass channel, which includes Walmart and Target;
• the convenience channel, which includes 7-Eleven, Ci[r]cle K, Pilot,
QuickTrip and other convenience stores;
• the discount channel, which includes Aldi and Dollar General;
• the drug store channel, which includes stores like CVS, Walgreens, and
Rite-Aid;

Serial No. 98708838
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• the liquor channel, which includes Oaken Keg Spirit Sh[]op and Spec’s
Wine, Spirits and Finer Goods and other liquor stores;
• the military channel, such as various army, marine, and navy bases; and
• the e-commerce channel, which includes [Opposer’s] website and
Amazon storefront.”31
Applicant, for its part, stated in response to interrogatories and a request for
admission from Opposer that its “intended channels of trade are brick-and-mortar
chain stores, se[l]f-service stores, e-commerce platforms, its website … and its social
media accounts (i.e. Instagram, Facebook)”; that its target market in the U.S. is
“males and females in the age of 15-50”; and that it has “no evidence that the
consumers of the goods intended to be offered under Applicant’s Mark would not
overlap with consumers of goods offered under the Opposer’s Marks.”32
In view of the foregoing, including the third-party registration evidence, we can
infer that Applicant’s “food supplements” and Opposer’s “electrolyte replacement
solution for oral rehydration,” both in Class 5, are general consumer products sold to
the general public, and that they are inherently related due to their shared functional
purposes—both are ingestible items aimed at supporting health, hydration, nutrition
or bodily function. This relatedness, supported by the parties’ statements, implies
that their ordinary channels of trade would logically intersect, as consumers seeking
health maintenance or recovery products would encounter them in similar
distribution channels.
31 15 TTABVUE 11 (García Test. Decl., ¶ 38).
32 12 TTABVUE 152-53, 155, 166-67 (Applicant’s response to Opposer’s Interrogatory Nos. 8
and 27, and Request for Admission No. 29).

Serial No. 98708838
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As to Class 32, because the goods in the Application and Opposer’s Registration
overlap and there are no limitations on trade channels or consumers, we must
presume that the trade channels and classes of consumers for those legally identical
in-part goods also overlap. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1372 (Fed.
Cir. 2018) (“[T]he TTAB properly followed our case law and ‘presume[d] that the
identical goods move in the same channels of trade and are available to the same
classes of customers for such goods….”) (citation omitted); In re Viterra, 671 F.3d
1358, 1362 (Fed. Cir. 2012) (“[I]t is well established that, absent restrictions in the
application and registration, [identical] goods and services are presumed to travel in
the same channels of trade to the same class of purchasers.” (internal quotation
marks and citation omitted)).
As to Class 33, we noted above that Opposer neither argued nor provided evidence
sufficient to show that sports drinks or electrolyte replacement solutions are related
to the alcoholic beverage goods in the Application, which include the broadly
described “alcoholic beverages, except beer.” Because the goods are not shown to be
related, there is no presumption about their respective trade channels. The only
evidence suggesting that their trade channels could be related is Mr. García’s
testimony that one of the trade channels for Opposer’s goods include “the liquor
channel, which includes Oaken Keg Spirit Shiop [sic] and Spec’s Wine, Spirits and
Finer Goods and other liquor stores.”33 But this is not enough for us to find that
33 15 TTABVUE 11 (García Test. Decl., ¶ 38). A confidential exhibit to Mr. Garcia’s testimony
lists Applicant’s entire “client list,” including these two “liquor” stores, but this list provides

Serial No. 98708838
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Opposer’s goods are sold at liquor stores, generally. We thus do not find the trade
channels are related with respect to Applicant’s Class 33 goods.
3. The Purchasing Conditions
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361. Purchaser sophistication or degree of care when
encountering marks may tend to minimize likelihood of confusion. In re N.A.D., Inc.,
754 F.2d 996, 1000 (Fed. Cir. 1985) (finding no likelihood of confusion where goods
were elaborate machines purchased only by “very sophisticated purchasers ... who
would buy with great care”).
Opposer’s witness, Mr. García, testified that “a single ELECTROLIT® or
ELECTROLIT ZERO® bottle” will normally cost “$2.50 at retail while a 12-pack will
cost around $36 at retail. In regards to the rehydration powders sold under the
ELECTROLIT® mark, these products are sold for around $15 for an eight pack.”34
He also testified that “some products like those Applicant intends to offer under its
ELECTROMAS mark have a similar price point to the products offered for sale under
the mark by [Opposer],” though he does not provide support for that contention.35
Regardless, neither the Application nor Opposer’s registrations are restricted by
target market, price, or consumer sophistication. We therefore must assume that the
no information about the goods sold by the listed clients. See 13 TTABVUE 22-39 (García
Test. Decl., Exh. 24).
34 15 TTABVUE 13 (García Test. Decl., ¶ 50).
35 Id. at 13-14.

Serial No. 98708838
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types of buyers include both sophisticated health consumers as well as impulse
consumers. See Recot, 214 F.3d at 1329 (“When products are relatively low-priced and
subject to impulse buying, the risk of likelihood of confusion is increased because
purchasers of such products are held to a lesser standard of purchasing care.”).
The fourth DuPont factor weighs in favor of finding a likelihood of confusion.
4. The Strength or Weakness of Opposer’s Mark
“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 considers
“[t]he fame of the prior mark (sales, advertising, length of use),” whereas the sixth
DuPont factor allows an applicant to contract that scope of protection by adducing
evidence of “[t]he number and nature of similar marks in use on similar goods.”
DuPont, 476 F.2d at 1361. Because there is no third-party use evidence in this case,
we focus our strength analysis on the fifth DuPont factor, addressing both the
(a) conceptual (or inherent) strength and (b) marketplace strength of Opposer’s
marks. See In re Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010)
(citations omitted) (“A mark’s strength is measured both by its conceptual strength
(distinctiveness) and its marketplace strength ....”). For reasons that will become
apparent, in discussing the strength or weakness of Opposer’s mark(s), we consider
all of Opposer’s relied-upon ELECTROLIT-formative marks, rather than just the
composite.

Serial No. 98708838
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a. Conceptual Strength
Spireon explains that:
Conceptual strength is a measure of a mark’s distinctiveness,
Chippendales, 622 F.3d at 1353, and distinctiveness is “often classified
in categories of generally increasing distinctiveness[:] … (1) generic; (2)
descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc.
v. Taco Cabana, Inc., 505 U.S. 763, 768, … (1992). Distinctiveness is
relevant to a mark’s overall strength in the likelihood of confusion
analysis. 2 [J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND
UNFAIR COMPETITION] § 24:43.”
Relevant here, descriptive marks “directly and immediately convey[]
some knowledge of the characteristics of a product or service,” id.
§ 11:16, while suggestive marks “suggest[], but do[] not directly and
immediately describe, some aspect of the goods or services,”
2 MCCARTHY, supra, § 11:62. Under our precedent, “[m]arks that are
descriptive or highly suggestive are entitled to a narrower scope of
protection, i.e., are less likely to generate confusion over source
identification, than their more fanciful counterparts.” Juice Generation,
[794 F.3d at] 1339 (citations omitted); ….
71 F.4th at 1362-63.
Consideration of Opposer’s pleaded marks as they are used with the goods in
Opposer’s pleaded registrations—coupled with concessions that Opposer has made in
the course of obtaining its registrations—lead us to conclude that the terms
ELECTROLIT and ELECTROLIT ZERO in Opposer’s marks are conceptually very
weak. ELECTROLIT is a slight misspelling of “electrolyte”—the very ingredient that
immediately describes and comprises a key aspect of the central component in the
goods touted by Opposer in each its registrations. And minor misspellings of
descriptive or generic terms do not create inherent distinctiveness. The Federal
Circuit, its predecessor, other courts, and the Board, have repeatedly held as much.
See Nupla Corp. v. IXL Mfg. Co., 114 F.3d 191, 196 (Fed. Cir. 1997) (CUSH-N-GRIP

Serial No. 98708838
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“which is merely a misspelling of CUSHION-GRIP, is also generic as a matter of
law”“); King-Kup Candies, Inc. v. King Candy Co., 288 F.2d 944, 949 (CCPA 1961)
(“the syllable ‘Kup,’ which is the full equivalent of the word ‘cup,’ is descriptive”); In
re Hercules Fasteners, Inc., 203 F.2d 753, 757 (CCPA 1953) (finding “Fastie” merely
a phonetic spelling of “fast tie” is descriptive); Andrew J. McPartland, Inc. v.
Montgomery Ward & Co., 164 F.2d 603, 606 (CCPA 1947) (“KWIXTART” merely
descriptive for quick-start batteries despite misspelling of “quick start”).
See also In re Calphalon Corp., Ser. No. 86356713, 2017 TTAB LEXIS 98, at *34
(holding “SHARPIN”, the phonetic spelling of “sharpen,” merely descriptive of cutlery
knife blocks with built-in sharpeners); Terry Nazon Inc. v. Ghiorse, No. 91216729,
2016 TTAB LEXIS 262, at *22 (“one cannot obtain rights in a mark merely by a slight
misspelling of a recognized descriptive term”); In re Wyandotte Chems. Corp., 1967
TTAB LEXIS 134, at *2 (no number in original) (TES-TED merely descriptive of
detergents that have been subjected to tests; “[A] descriptive term is not made
arbitrary by hyphenating or misspelling it.”); see generally 2 J. Thomas McCarthy,
MCCARTHY § 11:31 (5th ed. Sept. 2020 update) (“A slight misspelling of a word will
not usually turn a descriptive word into a nondescriptive one.”).
In addition, Opposer’s registration history includes multiple, unambiguous
admissions that neither ELECTROLIT nor ELECTROLIT ZERO is an inherently
distinctive term. True, Opposer’s application to register the composite mark
for an “electrolyte replacement solution for oral rehydration” and
“oral rehydration beverages, namely, sports drinks” in the ’726 Registration

Serial No. 98708838
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registered on the Principal Register without a disclaimer or claim of acquired
distinctiveness.36
However, a little more than two years after filing the application that matured
into the ‘726 Registration, on July 13, 2013 and September 27, 2013, Opposer filed
applications to register the composite marks and on the
Principal Register for the same goods, this time adding that Opposer’s sports drinks
contained “electrolytes,” and disclaiming the exclusive right to use term
ELECTROLYTE.37 See Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560,
1563 (Fed. Cir. 1987) (“disclaimers are tantamount to admissions” that a party does
not have the exclusive right to use a descriptive term). These applications matured
into the ’232 and ’350 Registrations.
Approximately a year and a half later, on November 4, 2014, Opposer filed an
application to register the term ELECTROLIT, alone and in standard characters on
the Principal Register for a wide variety of goods in Classes 5 and 32, but also
including “Pharmaceutical products, namely, electrolyte replacement solutions.”38
However, registration was refused until Opposer amended its application to seek
36 15 TTABVUE 68 (García Test. Decl., Exhibit 4).
37 Id. at 81-82, 94-95.
38 Id. at 107-08.

Serial No. 98708838
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registration on the Supplemental Register, which resulted in the ’885 Registration.
“[T]his, in itself, is an admission that, as of the date of registration, [ELECTROLIT]
was merely descriptive rather than inherently distinctive for the identified [goods].”
State Permits, Inc. v. Fieldvine, Inc., No. 92075095, 2024 TTAB LEXIS 291, at *32.
Approximately six years after that, on October 2, 2020, Opposer filed two
applications to register the standard-character mark ELECTROLIT ZERO on the
Principal Register, resulting in the ’880 and ’881 Registrations which claim acquired
distinctiveness in-part under Section 2(f) as to the term “ELECTROLIT” based on
Opposer’s ownership of other registrations depicting that term along with other
matter. Those registrations constitute an admission that “ELECTROLIT is not
inherently distinctive. See e.g., Yamaha In’tl Corp. v. Hoshino Gakki Co., 804 F.2d
1572, 1577 (Fed. Cir. 1988) (“Where, as here, an applicant seeks a registration based
on acquired distinctiveness under Section 2(f), the statute accepts a lack of inherent
distinctiveness as an established fact.”); Mini Melts, Inc. v. Reckitt Benckiser LLC,
No. 91173963, 2016 TTAB LEXIS 151, at *50 (citing Cold War Museum, Inc. v. Cold
War Air Museum, Inc., 586 F.3d 1352, 1358, (Fed. Cir. 2009) (“[R]egistration under
Section 2(f) of the Trademark Act is considered an admission that the proposed mark
is not inherently distinctive.”); TRADEMARK MANUAL OF EXAMINING PROCEDURE
(TMEP) § 1212.02(b) (Nov. 2025).
The ’880 and ’881 Registrations also carry a presumption of acquired
distinctiveness. 15 U.S.C. § 1057(b); Tea Bd. Of India v. Republic of Tea, Inc., No.
91118587, 2006 TTAB LEXIS 330, at *62 (“A mark that is registered on the Principal

Serial No. 98708838
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Register is entitled to all Section 7(b) presumptions including the presumption that
the mark is distinctive ….”). But that presumption “does not extend to individual
components of the registered mark, let alone disclaimed components of the mark.” In
re Bose Corp., 772 F.2d 866, 873 (Fed. Cir. 1985), citing In re Nat’l Data Corp., 753
F.2d 1056, 1059 (Fed. Cir. 1985) (“The registration affords prima facie rights in the
mark as a whole, not in any component.”) (emphasis in original). Nor does it speak to
the degree or extent of acquired distinctiveness that has been achieved, and that
degree may affect the speed and extent to which it acquires distinctiveness.
For example, if a term is highly descriptive, it may take years of extensive sales
and advertising, coupled with substantially exclusive use, to cross the thin line from
being merely descriptive to becoming highly suggestive—if it ever attains a measure
of distinctiveness, acquiring just barely enough secondary meaning to be registrable.
See e.g., Sure-Fit Prods. Co., 254 F.2d 158, 159-60 (CCPA 1958) (“‘Rite-Fit’ is an
obvious misspelling of ‘Right-Fit’ and is clearly descriptive of a function of the goods
with which the words are used. And though appellant has obtained a registration for
this mark on the principal register as a secondary meaning mark, there is nothing in
the record to indicate that this mark is not still in the category of a weak mark.”);
Scholl Mfg. Co. v. Principle Bus. Enters., 1966 TTAB LEXIS 91, at *10-11 (“Under
these circumstances and considering the highly suggestive character of the term
‘PILLOW’ or its equivalents [including term PILLO in Opposer’s mark] in the
footwear field, we are not persuaded that purchasers would be likely to associate any
mark bearing the word ‘PILLOW’, ‘PILLO’, OR THE LIKE USED IN THE footwear

Serial No. 98708838
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or related fields with opposer.”). Highly suggestive marks of this sort are entitled to
a narrower scope of protection, and are less likely to generate confusion over source
identification than their more fanciful counterparts. Spireon, 71 F.4th at 1362-63;
Juice Generation, 794 F.3d at 1339.
We find that the overall conceptual strength of Opposer’s several marks arises not
from the slight misspelling of “electrolyte” therein, but from its combination with the
rather unique design above the stylized wording of ELECTROLIT as used by
Opposer’s in its mark consisting of
“four liquid drops varying in lengths emanate from the letter ‘I’ in
‘ELECTROLIT’. The first droplet extends to the second letter ‘E’ in
‘ELECTROLIT’ and is green in color, the next droplet is orange which
fades to yellow and then to orange, the third droplet is red and the fourth
is purple. Each drop also has specks of white.”
We further find that the term ELECTROLIT in the mark is, at best, highly
suggestive of Opposer’s goods. Consumers therefore may be able to differentiate the
marks based on other matter in the marks and avoid confusion. See e.g., Top Tobacco
LP v. North Atl. Op. Co., Inc., No. 91157248, 2011 TTAB LEXIS 367, at *35
(“[C]onsumers encountering this mark [ZIG ZAG CLASSIC AMERICAN BLEND]
will focus on the ZIG ZAG element and relegate the wording CLASSIC AMERICAN
BLEND as highly suggestive of the tobacco goods.”); In re Hunke & Jochheim, 1975
TTAB LEXIS 13, at *4-5 (“[T]he addition of other matter to a highly suggestive or
descriptive designation, whether such matter be equally suggestive or even
descriptive, or possibly nothing more than a variant of the term, may be sufficient to
distinguish between them so as to avoid confusion in trade.”). See generally J. Thomas

Serial No. 98708838
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McCarthy, 3 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:48 (5th ed.
Mar. 2026 update). Opposer, for its part, does not comment on the conceptual
strength or weakness of the term ELECTROLIT, taken alone, in its marks.
b. Marketplace Strength
We now turn now to the marketplace strength of Opposer’s marks. Opposer
maintains that its “ELECTROLIT® Marks are Strong and Famous.”39 The fifth
DuPont factor, “enables Opposer to prove that its pleaded mark is entitled to an
expanded scope of protection by adducing evidence of its fame. See Monster Energy
Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *27; Sock It To Me, 2020 TTAB
LEXIS 201, at *26. Marketplace strength is “a measure of the mark’s strength in the
marketplace.” Spireon, 71 F.4th at 1362-63 (citing Joseph Phelps Vineyards, LLC v.
Fairmont Holdings, LLC, 857 F.3d 1323, 1325 (Fed. Cir. 2017)).
“A mark ‘with extensive public recognition and renown deserves and receives
more legal protection than an obscure or weak mark.’” Omaha Steaks Int’l 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)).
“‘Direct evidence of fame … rarely appears in contests over likelihood of
confusion.’” Id. (quoting Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 1371
(Fed. Cir. 2002)). “Instead, ‘the fame of a mark may be measured indirectly, among
other things, by the volume of sales and advertising expenditures of the goods
traveling under the mark, and by the length of time those indicia of commercial
39 16 TTABVUE 22 (Opposer’s Brief) (bold emphasis in original).

Serial No. 98708838
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awareness have been evident.’” Omaha Steaks, 908 F.3d at 1319. Raw numbers alone
may be misleading, however. Thus, some context in which to place raw statistics may
be necessary, for example, market share or sales or advertising figures for comparable
types of goods. Bose, 293 F.3d at 1375 (“some context in which to place raw statistics
is reasonable”). We also consider “widespread critical assessments; notice by
independent sources of the goods or services identified by the marks; the general
reputation of the goods or services; and social media presence.” Heil Co. v. Tripleye
GmbH, No. 91277359, 2024 TTAB LEXIS 494, at *51 (citation omitted); see also Bose,
293 F.3d at 1371 (recognizing indirect evidence as proof of commercial strength).
Before evaluating the marketplace strength of Opposer’s marks, we make a
general observation that some of Opposer’s arguments on this topic suffer from the
fact that they, and the evidence upon which they are based, including the testimony
from Opposer’s sole witness, Mr. García, often do not distinguish between Opposer’s
several pleaded registered marks or the goods provided under each. For example, Mr.
García testified that Opposer “is a leading rehydration beverage company that sells
wholesale various rehydration drinks and rehydration powders under the
ELECTROLIT® and ELECTROLIT ZERO Marks (collectively “ELECTROLIT®
Marks”) in the United States”; that “[t]he rehydration beverage products offered
under the ELECTROLIT® Marks were first sold in the United States in August
2014,” and that “since introducing the ELECTROLIT® Marks in 2014, [Opposer
and/or its] predecessor has expanded the products it offers under the

Serial No. 98708838
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ELECTROLIT® Marks and introduced other rehydration products.”40
Mr. García indicates that Opposer “introduced its diet rehydration drinks under
the ELECTROLIT ZERO®” in February 2021” and “introduced its rehydration
powder packages under the ELECTROLIT™ Mark” in 2021,” but when he gets to
Opposer’s advertising and marketing expenses, and sales, he does not distinguish
amongst Opposer’s marks or the particular goods to which they pertain. He discusses
the “Marketing and Promotion of the ELECTROLIT® Marks,” and the “Sales of
Products offered under the ELECTROLIT® Marks,”41 generally.
Recall, however, that Opposer does not rely solely on its composite mark
(in Registration No. 4222726) and two additional iterations of that
mark (in the ’232 and ’350 Registrations) for electrolyte replacement solutions for oral
rehydration and sports drinks. Opposer also relies on two ELECTROLIT ZERO
standard-character mark (in the ’880 and ’881 Registrations) for not only electrolyte
replacement solutions, but also dietetic beverages adapted for medical purposes,
electrolyte drinks for medical purposes, energy drinks, isotonic beverages, and soft
drinks. And Opposer also relies on its Supplemental Register registration for the
mark ELECTROLIT (in the ’885 Registration) for a wide array of goods, including
Pharmaceutical products, namely, electrolyte replacement solutions;
veterinary products, namely, dog, horse, pig, cat, bird, and ruminant
food, bacterial and bacteriological preparations for veterinary use,
chemical reagents for veterinary purposes, enzymes for veterinary
purposes, diagnostic preparations for veterinary purposes, veterinary
40 15 TTABVUE 3-4 (García Test. Decl., ¶¶ 5, 9, and 11) (emphasis added).
41 Id. at 6, 12.

Serial No. 98708838
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vaccines; hygienic products, namely, skin cleansing solutions for
medical use; dietetic substances for medical use, namely, diet pills, diet
capsules, and diet drinks; baby food; poultices; wound dressings; dental
poultices; dental mold poultices; disinfectants for home use; products for
the destruction of harmful animals, namely, insecticides and pesticides;
fungicides; herbicides, in Class 5, and
Beers; mineral waters; carbonated beverages; non-alcoholic beverages,
namely, water, flavored water; fruit beverages and juices; syrups for
making beverages, in Class 32.42
Opposer filed a Section 8 declaration of use on July 21, 2021 attesting to the use of
ELECTROLIT on all of those goods.43
Mr. García primarily discusses Opposer’s rehydration products in his testimony,
but his testimony regarding Opposer’s advertising expenses and sales figures is not
limited to those particular goods. He discusses the “Marketing and Promotion of the
ELECTROLIT® Marks,” the “Distribution of the Products Offered Under the
ELECTROLIT® Marks,” and the “Sales of the Products offered under the
ELECTROLIT® Marks,” only generally.44 And he refers us to Exhibit 6 of his
declaration, which provides a confidential listing of, among other things, Opposer’s
“advertising expenditures” and “sales figures of the products sold under the
ELECTROLIT® Marks” for each year between “2014-YTD 2024,” in the aggregate.45
This situation is distinguishable from that in Coach Servs., 668 F.3d 1356, where
42 Both Mr. García in his declaration, 15 TTABVUE 6, and Opposer in its brief, 16 TTABVUE
13, refer to identification of goods in the ’ 885 Registration in an abbreviated matter,
specifically: “Pharmaceutical products, namely, electrolyte replacement solutions, ….” But
doing so does not limit the scope of the product listing.
43 15 TTABVUE 107-08 (García Test. Decl.).
44 Id. at 6, 11-12.
45 Id. at 7, 12, 20 (¶¶ 20, 41); 13 TTABVUE 20 (Exhibit 6).

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aggregate sales and advertising evidence was presented in support of the use of the
mark COACH for goods in 18 different registrations. But there, the opposer’s
registrations were on the Principal Register, the mark comprised a strong arbitrary
term (“COACH”), and the goods were closely related luxury items, thus allowing the
Board to attribute the figures to the overall strength without ambiguity. Id. at 1369-
70.
Here, by contrast, Opposer relies on, among other things, a Supplemental Register
registration for the term ELECTROLIT which, as a misspelling of the term
ELECTROYLTE, is not only highly suggestive of Opposer’s sports drinks, but also
covers an array of goods unrelated to Opposer’s electrolyte beverages (e.g., ruminant
food, bacterial and bacteriological preparations for veterinary use, baby food, skin
cleansing solutions for medical use, wound dressings, dental poultices, products for
the destruction of harmful animals, namely, insecticides, pesticides, and herbicides)
which Opposer has claimed were provided in commerce as recently as July 21, 2021.46
Consequently, we are left to guess whether the aggregate figures discussed in Mr.
García’s testimony reflect true commercial strength for the relevant goods, as opposed
to mere promotion of a wide, disparate range of products. As such, the evidence has
less probative value than it otherwise might have had because the Board cannot
discern what portion of the sales and advertising is attributable to the core goods in
this opposition versus unrelated goods.
46 15 TTABVUE 107-09 (García Test. Decl., Exhibit 4). One article to which Mr. García refers
states that Opposer is owned by Pisa Pharmaceuticals, the largest pharmaceutical company
in Mexico and Latin America. Id. at 295.

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Even if we were to infer that Opposer’s advertising and sales figures relate
primarily to the particular “rehydration products” discussed in Mr. García’s
testimony, his figures are unaccompanied by evidence of their significance in what he
refers to as “the rehydration industry.”47 For instance, he asserts that in 2022, “the
ELECTROLIT® brand became the fourth largest rehydration brand in the United
States,”48 but provides no documentary support for that figure or an explanation as
to how ranking is calculated. To “rehydrate” means to restore fluid to (something
dehydrated).”49 The “rehydration industry” thus covers any beverage that hydrates,
which exceeds the scope of Opposer’s identified sports drinks. See Mini Melts, No.
91173963, 2016 TTAB LEXIS 151, at *58 (“The probative value of [Applicant’s sales
revenue] is diminished by the fact that the amount is just a raw number in the vast
pharmaceutical industry, providing no context showing Applicant’s mark share and
whether the stated amount of doses sold is significant in the industry.”).50
Opposer’s yearly advertising figures cover all of Opposer’s advertising and
promotional activities, “including but not limited to websites, social media, point of
47 Id. at 2-3 (García Test. Decl., ¶ 2).
48 Id. at 4 (¶ 10).
49 We take judicial notice of that definition from the MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/rehydrate (accessed March 2, 2026).
50 Elsewhere, Mr. García refers to an August 10, 2020 article from Bevnet (bevnet.com) that
refers to ELECTROLIT as “the fourth largest sports drink brand behind Gatorade, Powerade
and BodyArmor,” 15 TTABVUE 10, 296-300 (¶ 30; Exhibit 21), but the content of that article
is hearsay and cannot be relied on for its truth. See WeaponX Performance Prods. Ltd. v.
Weapon X Motorsports, Inc., No. 91221553, 2018 TTAB LEXIS 72, at *11 and *19 n.18 (absent
testimony from a competent witness, Internet evidence is hearsay, whether there is an
objection or not).

Serial No. 98708838
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sale materials, billboards, television and radio ads, sponsorships and tradeshows.”51
Mr. García provides no breakdown or context for those numbers vis-à-vis the
particular advertising provided or the extent of its reach, which diminishes their
overall probative value. See Made in Nature, 2022 TTAB LEXIS 251, 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.”). On the other hand, he did
provide a variety of examples of prominent advertising by Opposer that show the
mark on Opposer’s sports drink on billboards, digital billboards, wallscape ads, bus
and transit mobile car wraps, bus stop ads in cities such as Los Angeles, Miami,
Atlanta, Chicago, Cincinnati, Dallas, Houston, Las Vegas, New York and other
cities.52 Yhese examples appear limited to Opposer’s advertising in 2023.
Mr. García testified that Opposer “has attended over 20 tradeshows across the
United States promoting its ELECTROLIT Marks, including attending the National
Association of Convenience Store trade show (“NACS Show”), which is one of the
largest supplier exhibitions with over 23,000 attendees from over 70 countries.”53 He
also provides a photograph of Opposer’s promotion of -branded
51 Id. at 7 (¶¶ 19-20); 13 TTABVUE 19-20 (Exhibit 6).
52 15 TTABVUE 221-87 (García Test. Decl., Exhibits 18a-18b).
53 Id. at 7 (¶ 21).

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electrolyte beverages at the 2012 NACS Show.54 Whether Opposer’s attendance at
twenty shows directed to retailers, rather than the ultimate consumers, over the
course of a decade is significant as to the relevant consumer perception is unclear, as
is the extent of foreign attendees at such conferences, who would not be considered
relevant to consumer perception in the United States.
Mr. García testified that Opposer has become “a sponsor of various prominent
events across the United States, such as the US Soccer League, Coachella,
Stagecoach, the LA Marathon, and the Miami Open,” which he states “have made the
products offered under [Opposer’s] ELECTROLIT® Marks top of mind for hundreds
of thousands of people.”55 These sponsorships show the growing success of Opposer’s
products, but their impact on consumers is less clear. See Bose, 293 F.3d at 1375 (“For
example, a 30-second spot commercial shown during a Super Bowl football game may
cost a vast sum, but the expenditure may have little if any impact on how the public
reacts to the commercial message.”). Mr. García also testified, and provided press
releases that show Opposer has sponsored “sports stars and other influencers, such
as racing driver Patricio ‘Pato’ O’Ward, influencer and basketball start Tristan Jass,
and racing driver Sergio Checo Perez.”56 However, the extent and nature Opposer’s
advertising with these celebrities is unknown. The press release pertaining to O’Ward
shows a picture of him in his driving uniform, which is peppered with a multiplicity
54 Id. at 135-37 (Exhibit 7).
55 Id. at 7-8 (¶ 22).
56 Id. at 8 (¶ 23).

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of brands, not just ELECTROLIT, so its effect on consumers is unclear.
Mr. García testified that Opposer also “promotes and advertises the products it
sells under its ELECTROLIT® marks through its website” and that those products
have been advertised in English since at least 2014,57 but the exhibits he provides in
support show that Spanish was used in 2014, and English was only shown on a page
excerpt from 2018.58 He testified further that the website was “visited by over 724,000
visitors in 2022, and over 861,000 visitors in 2023,”59 but the analytics he provides in
support do not indicate whether those numbers represent unique visitors or are
significant for Opposer’s industry.60 Nor do they indicate what portion of visitors to
Opposer’s website are from within the United States. In’tl AG v. Sky Cinemas LLC,
No. 91223952, 2020 TTAB LEXIS 317, at *52 (“Without comparative numbers or
market share percentages for the United States, the site visitor numbers to Opposer’s
mobile applications and streaming services lack the context needed for us to
determine the extent of the commercial impact the impressions made or whether the
amounts stated are significant in the industry.”).
Mr. García discussed Opposer’s social media presence in promoting its
“ELECTROLIT® Marks,” including on Instagram, Facebook, and TikTok.61
According to Mr. García, “as of June 11, 2024, the Facebook ElectrolitUSA page had
57 Id. (¶¶ 24-25).
58 Id. at 199-204 (Exhibit 14).
59 Id. at 8 (¶ 25).
60 Id. at 205-08 (Exhibit 15).
61 Id. at 9 (¶ 26).

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476,000 followers with 466,000 likes while the @electrolit Instagram account had
100,000 followers, and, as of May 15, 2024, the Electrolitusa TikTok account had 338
followers and 871 likes.” But we do not know if those numbers are significant as
compared to others in the rehydration industry. We are also not convinced that
simply because someone follows or “likes” a social media platform, they are a
consumer. Regardless, the number of likes or followers should be put into context,
and user comments appearing on such social media sites may provide insight into
consumer perception of the mark. See Performance Open Wheel Racing, Inc. v. U. S.
Auto Club Inc., No. 91229632, 2019 TTAB LEXIS 137, at *29 (“Applicant provided no
explanation or context as to the meaning of Applicant’s 105,000 Facebook ‘likes’ and
35,000 Twitter followers.”). Mr. García also did not provide important information,
such as when Opposer started promoting its marks on social media, how many posts
it has made, or how frequently it posts content.
Mr. García discusses Opposer’s “specialized marketing campaigns” on “media such
as Meta, YouTube, Spotify, NBC, Infinia and Google Ads.” He highlights one
particular example: Opposer’s “April-June 2023 Summer Digital Advertising
Campaign,” which he says “had over 105 million impression[s] on YouTube, over 64
million impression [sic] on Meta, over 43 million impression[s] on Infinia, and over
12 million impressions on NBC,”62 and he provides a copy of Opposer’s “2023
campaign report” in support of these assertions.63 The problem, however, is that we
62 Id. (¶ 27).
63 Id. at 215-20 (Exhibit 17). Exhibit 17 was marked “HIGHLY CONFIDENTIAL” but was
filed in the public database unredacted. We therefore do not consider it confidential.

Serial No. 98708838
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are not told anything about the specifics of the advertising campaign, such as how
the mark was used or the way any particular goods were advertised. We cannot accord
meaning to “impressions” if we have no information about what was viewed by
consumers. Information about whether viewers can bypass such advertisements after
several seconds versus whether viewer are required to watch them before reaching
desired content would also be helpful in evaluating the campaign. As presented, the
evidence has little probative value.
Mr. García testified that “the ELECTROLIT® Marks are well-known to
consumers as the products sold under the ELECTROLIT® Marks have obtained
unsolicited media attention due to the extraordinary growth of the brand,” but he
identifies just four examples from two different websites since the mark was first
used in the U.S. in 2014: a July 5, 2016 article from Abasto (abasto.com) titled
“Electrolit Beverage: The leader in hydration gains ground in the USA”; an August
31, 2022 article from Abasto titled “Electrolit increases distribution to more than
10,000 Stores Nationwide”; an August 10, 2020 article from Bevnet (bevnet.com)
titled “Sports Medicine: Electrolit Makes Rapid Rise into Refreshment”; and an
August 22, 2022 article from Bevnet titled “Electrolit CEO: Goal Is To Be ‘Top Three’
Sports Drink.”64 These beverage industry articles discuss the success of Opposer’s
sports drink in the marketplace since its introduction in 2014. But we have some
doubts as to whether the press was unsolicited. For example, one of the Abasto
articles mentioned above provides copyright notice from “Hispanic Marketing
64 Id. at 292-305 (Exhibits 19-23) (first two titled are in all caps in the original).

Serial No. 98708838
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Consultants.”65
Mr. García also testified about Opposer’s enforcement efforts. He states that
Opposer sends cease and desist letters to parties it believes are using or seeking
registrations of marks likely to cause confusion with “[Opposer’s] products using the
ELECTROLIT Marks®.”66 And he provided copies of various notices of opposition
Opposer has filed to enforce its marks.67 According to Mr. García, “[a]s a result of
[Opposer’s] consistent enforcement of its rights, the trademark register is free of
ELECTRO formative marks that use a short second term with a similar connotation
to ‘lit’ ….” He provides no support for this assertion, but even if it were true,
consumers are not generally aware of what registrations do or do not exist on the
USPTO register.
There is no evidence that tends to show that Opposer’s policing efforts have led to
public recognition and renown of Opposer’s marks in connection with its identified
goods. See e.g., Omaha Steaks, 908 F.3d at 1323 (“[T]he mere fact that lawsuits were
filed is not reasonably probative of the fame inquiry, which is focused on whether the
mark has achieved extensive public recognition and renown, not on enforcement
efforts.”) (citation and internal quotation marks omitted). All of the applications
opposed by Opposer were either abandoned or withdrawn following opposition, which
resulted in default judgments; none were decided on the merits. We thus cannot
65 Id. at 295 (Exhibit 20).
66 Id. at 2-298 (Exhibit 28).
67 In doing so, Mr. García includes attachments to the notice of records that provide numerous
copies of its already of record, which was unnecessary.

Serial No. 98708838
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conclude that those proceedings are “probative of the [fame] of the mark[s] as opposed
to the [defending parties’] desire to avoid litigation.” See In re Dimarzio, Inc., No.
87213400, 2021 TTAB LEXIS 457, at *17 n.24 (citing In re Wella Corp., 565 F.2d 143,
144 n.2 (CCPA 1977)) (“Appellant argues that various letters (of record) from
competitors indicating their discontinuance of use of its mark upon threat of legal
action are evidence of its distinctiveness, but we agree with the TTAB that such
evidence shows a desire of competitors to avoid litigation rather than distinctiveness
of the mark”). The same is true with respect to Opposer’s cease and desist letters. See,
e.g., Milwaukee Elec. Tool Corp. v. Freud Am., Inc, No. 92059634, 2019 TTAB LEXIS
384, at *60 (“[W]e find that competitors likely acquiesced to Freud’s assertion of its
exclusive right to use the color red on saw blades to avoid litigation.”); In re Hikari
Sales USA, Inc., No. 86439012, 2019 TTAB LEXIS 73, at *19 (applicant’s evidence
“only shows” that “competitors ceased use of that term, but does not shed light on its
competitors’ motivation for stopping their respective uses.”).
Viewed in its totality, Opposer’s evidence, which includes a large and growing
sales network of distribution and retail channels comprising 120,000 stores across all
fifty states where Opposer’s electrolyte beverages are sold,68 shows a growing and
successful business that has achieved a moderate degree of commercial strength. But
due to deficiencies in the evidence discussed above, including Opposer’s failure to
clearly distinguish its evidence as it relates to its marks and goods, failure to
segregate its various advertising expenses and sales revenue for particular goods
68 Id. at 11 (¶¶ 37-39).

Serial No. 98708838
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provided without industry context, and other inadequacies, we cannot on this record
find that the marks are commercially strong, much less famous.
5. The Similarity or Dissimilarity of the Marks
This brings us to a comparison of the marks under the first DuPont factor, which
is always one of the most important considerations in a likelihood of confusion
analysis. See, e.g., Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165 (Fed.
Cir. 2002) (“[T]he ‘similarity or dissimilarity of the marks in their entireties’ is a
predominant inquiry.”) (citation omitted). “Marks are compared along the axes of
their ‘appearance, sound, connotation and commercial impression.’” Juice Generation,
794 F.3d at 1340 (citation omitted). The similarity or dissimilarity of marks is usually
a matter of degree. See, e.g., St. Helena Hosp., 774 F.3d at 752 (“Similarity is not a
binary factor but is a matter of degree.”) (citation omitted); Phillips Petroleum, 277
F.2d at 947 (“The question of similarity is ordinarily one of degree.”).
In addition, where the parties’ goods overlap, as do Opposer’s and Applicant’s
goods in Class 32, the degree of similarity needed to result in likely confusion
declines. See, e.g., Coach Servs., 668 F.3d at 1368 (“[I]f the parties’ goods are closely
related, a lesser degree of similarity between the marks may be sufficient to give rise
to a likelihood of confusion.”) (citations omitted). Not so with respect to the parties’
goods in Class 5, which are related but not identical, or with respect to Applicant’s
goods in Class 33, which are unrelated to Opposer’s goods.
Once again, we are comparing Opposer’s composite with
Applicant’s standard-character ELECTROMAS mark.

Serial No. 98708838
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We find that literal word “ELECTROLIT” is the dominant portion of Opposer’s
mark. See Viterra, 671 F.3d at 1366 (“[T]he verbal portion of word and design mark
likely will be the dominant portion.”); L.C. Licensing, Inc. v. Berman, No. 91162330,
2008 TTAB LEXIS 756, at *9 (“[I]f a mark comprises both a word and a design, then
the word is normally accorded greater weight because it would be used by purchasers
to request the goods.”). The mark’s design element, —which consists of
four liquid drops in the colors green, orange, yellow, and red, of varying in lengths
emanating from the letter “I”—serves to reinforce the purpose of Opposer’s goods and
their key ingredient of electrolytes, namely to rehydrate. And while it seems
somewhat incongruous to treat the highly suggestive and weak term ELECTROLIT
as the dominant portion of Opposer’s mark, it is clear that consumers will rely on that
verbal portion of the mark when calling for the goods.
We disagree with Opposer’s contention that the parties’ marks are “substantially
similar in their overall commercial impression” because “the marks begin with the
same dominant word prefix, spelled and pronounced identically: ELECTRO,” which
“creates a critical similarity despite other elements.”69 Because ELECTROLIT is just
a phonetic variant of the descriptive word “electrolyte” and consumers would
recognize it as such, it is unlikely that they would dissect that term into separate
syllables “electro” and “lit” to assign an alternate meaning. Nat’l Data., 753 F.2d at
1058 (dissection improper where it distorts the overall impression). Nor would
69 16 TTABVUE 30 (Opposer’s Brief).

Serial No. 98708838
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consumers be apt to dissect Applicant’s mark ELECTROMAS—a coined term with no
meaning in the record, into the component syllables “ELECTRO” and “MAS” to assign
a contrived meaning not otherwise apparent from the term.
Opposer’s witness, Mr. García, also attempts to draw parallels between Opposer’s
and Applicant’s marks on the basis of their purportedly similar elements “electro”
and “lit/mas”. For support, he cites pages from Applicant’s “current Mexican website”
in Spanish, which show images of packaging for various ELECTROMAS beverages
that display the brand “ELECTRO+,” rather than ELECTROMAS:70
But Applicant’s use of another mark (ELECTRO+) is irrelevant to our determination
of the likelihood of confusion of confusion between and
ELECTROMAS.71
70 Id. at 15; 14 TTABVUE 304-09 (Exhibit 29).
71 Applicant’s use of the mark “ELECTRO+” on a beverage label is irrelevant to the likelihood
of confusion analysis because ELECTRO+ is different mark than Applicant’s applied-for
ELECTROMAS mark. The Board must base its comparison on the marks as set forth in the
application and pleaded registrations, without regard to evidence of actual marketplace use
or variations not reflected therein. See Octocom Sys., Inc. v. Hous. Comput. Servs., Inc. 918
F.3d 937, 942 (Fed. Cir. 1990) (likelihood of confusion determined by marks and goods as
identified in the application and registration, not real-world conditions). See In re Aquitaine
Wine USA, LLC, No. 86928469, 2018 TTAB LEXIS 108, at *11 (“We must compare the marks

Serial No. 98708838
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Mr. García also argues that the marks are similar because their respective
suffixes, “LIT” in and “MAS” in ELECTROMAS, are also similar:
Although Applicant’s mark and [Opposer’s] mark have different
suffix[ex] – “Lit” vs. “Mas” – these two suffixes are also similar. In
Spanish, the term “mas” means “plus” and, in fact, Applicant is using
the term “mas” to means “plus” as shown on its current Mexican website.
The term “plus” and the term “lit” have similar meanings and
connotations. Specifically, the term “Lit” means exciting or excellent and
the term “plus” means that the item could be positive or good. As such,
the marks share a common meaning—excitement of positivity of the
product.72
We are not persuaded by Mr. García’s attempt to equate “MAS” with “LIT.”
Instead, “[w]e must look to the likely consumer perception of the mark in connection
with the identified goods, rather than applicant’s intended connotation.” UMG
Recordings, Inc. v. Mattel, Inc., 2011 TTAB LEXIS 286, at *55. Applicant’s use the
symbol “+” rather than the word “mas” on its website, which is not a dictionary, does
not establish that “mas” means “plus” or “+.” And we find little similarity in
connotation between the slang term, “LIT,” and the word “MAS.” This is nothing more
than attorney argument, which is not evidence. See Cai v. Diamond Hong, Inc., 901
F.3d 1367, 1371 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe, Inc., 424
F.3d 1276, 1284 (Fed. Cir. 2005)).
Even if we were to take judicial notice of the English translation of “mas,” it does
as they appear in the drawings, and not on any labels that may have additional wording or
information”), citing In re i.am.symbolic, llc, 866 F.3d 1315, 1324 (Fed. Cir. 2017) (“To the
extent that [appellant] is advocating that we consider another mark, will.i.am, that is not
part of the applied-for mark in analyzing the similarity of the marks, we decline to do so.”).
72 15 TTABVUE 15 (García’s Test. Decl. ¶ 55).

Serial No. 98708838
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not aid Opposer. “Mas,” in Spanish, is a conjunction meaning “but.”73 And with the
diacritical accent over the “a,” as “á,” it means “more,” and less commonly, “plus.”74
But there is no diacritical accent in this case. Regardless of how “mas” may be
translated, the marks still have different connotations and commercial impressions.
Thus, notwithstanding Opposer’s argument to the contrary, the differences between
the marks are actually enhanced if the meaning of “mas” is translated.
Here, ELECTROLIT, a misspelling of the known word “ELECTROLYTE,” must
be evaluated in its entirety for its overall commercial impression. That commercial
impression immediately describes or highly suggests the electrolyte content in
Opposer’s rehydration beverages rather than slang connotations extrapolated from
isolated syllables. Dissection of a mark to assign contrived meanings to its parts,
particularly when the mark as a whole is a phonetic variant of a highly suggestive
term, contravenes established principles requiring comparison of marks as a whole.
See DuPont, 476 F.2d at 1361 (marks must be considered in their entireties as to
appearance, sound, connotation and commercial impression); Nat’l Data, 753 F.2d at
1058 (dissection improper where it distorts the overall impression).
We acknowledge that Applicant’s ELECTROMAS mark is in standard character
form, and thus “could be used in any font, 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
73 https://dictionary.cambridge.org/dictionary/spanish-english/mas (accessed March 9, 2026).
74 Id.

Serial No. 98708838
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v. Innvopak Sys. Pty Ltd., No. 91194148, 2015 TTAB LEXIS 260, at *20 (citing
Citigroup Inc. v. Cap. City Bank Grp., 637 F.3d 1344, 1353 (Fed. Cir. 2011)). But we
also must account for the conceptual weakness of ELECTROLIT in Opposer’s marks,
bearing in mind that “[t]he weaker [Opposer’s] mark[s], the closer an applicant’s
mark can come without causing a likelihood of confusion and thereby invading what
amounts to its comparatively narrower range of protection.” Juice Generation, 794
F.3d at 1340 (internal citations omitted); accord Sure-Fit Prods., 254 F.2d at 160
(holding that SURE-FIT for slip covers could not prohibit all FIT-formative marks for
such goods; “[w]here a party uses a weak mark, his competitors may come closer to
his mark than would be the case with a strong mark without violating his rights,”
emphasizing that weak marks command a restricted range of protection to allow fair
competition); In re Clorox Co., 1977 TTAB LEXIS 66, at *6 (“[A]lthough registrations
of highly suggestive or merely descriptive marks are entitled to some measure of
protection against the registration of marks that may conflict therewith, … the scope
is circumscribed by virtue of the character of the mark so that the permissible degree
of similarity between the marks may be greater than in the case of arbitrary or coined
terms.”); In re Hartz Hotel Servs., Inc. No. 76692673, 2012 TTAB LEXIS 75, at *16
(finding, in part due to the “highly suggestive nature of the mark ‘Grand Hotel,’” that
is “entitled to only a very narrow scope of protection or exclusivity of use.”).
After careful consideration, we conclude that the parties’ marks are dissimilar in
appearance, sound, connotation and commercial impression when considered in their
entireties.

Serial No. 98708838
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C. Conclusion as to Likelihood of Confusion
We now weigh the DuPont factors for which there is evidence and argument. “Not
all of the DuPont factors are necessarily … of equal weight in a given case, and any
one of the factors may control a particular case.” Naterra, 92 F.4th at *1116-17 (citing
Tiger Lily Ventures, 35 F.4th at 1362) (internal quotation marks omitted)). “In some
cases, even a single factor may be dispositive.” Heil, 2024 TTAB LEXIS 494, at *96
(citing Kellogg Co. v. Pack’em Enters. Inc., 951 F.2d 330, 333 (Fed. Cir. 1991) (“We
know of no reason why, in a particular case, a single duPont factor may not be
dispositive.”)).
We are mindful that two dominant factors in the likelihood of confusion analysis
are similarity of the marks and similarity of the goods. In re i.am.symbolic, llc, 866
F.3d 1315, 1322 (Fed. Cir. 2017). Both can and frequently do weigh heavily one way
or the other in the final analysis. See, e.g., Tiger Lily Ventures, 35 F.4th at 1362
(similarity of marks factor weighs heavily in favor of likely confusion where marks
identical); QuikTrip Weigel Stores, 984 F.3d at 1037 (where marks “noticeably
differed in appearance, sound, connotation, and commercial impression,” this factor
outweighed other factors pointing in the opposite direction); Pink Lady Corp. v. L.N.
Renault & Sons, Inc., 265 F.2d 951, 953 (CCPA 1959) (the “similarity or dissimilarity”
of the goods “is logically a factor of considerable importance to be given much weight
in reaching the ultimate conclusion as to whether or not there is likelihood of
confusion”) (citation omitted). This does not mean either factor has to be dispositive.
It always depends on the facts of the particular case. In re Charger Ventures LLC, 64
F.4th 1375, 1381 (Fed. Cir. 2023) (“The weight given to each factor depends on the

Serial No. 98708838
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circumstances of each case.”) (citation omitted).
Here, we have found that Opposer’s and Applicant’s goods in Classes 5 and 32
overlap or are otherwise related, but there is no evidence that Opposer’s goods in any
class are related to Applicant’s goods in Class 33. The second DuPont factor thus
favors a finding of likelihood of confusion with regard to Applicant’s goods in Classes
5 and 32, but weighs against a likelihood of confusion as to Applicant’s goods in Class
33. We also weigh the third factor of similar trade channels in favor of likelihood of
confusion.
Under the first DuPont factor, we find that the dissimilarity of the parties’ marks
weighs heavily against concluding that confusion is likely. Having found Opposer’s
ELECTROLIT-based marks to be very weak, conceptually, and having only moderate
commercial strength attributable to Opposer’s composite marks, we weigh the fifth
factor only slightly in favor of a finding a likelihood of confusion. And while the fourth
DuPont factor weighs in favor of a find of likelihood of confusion, it does not negate
our finding that consumers are likely to differentiate the marks based on small
differences due to the overall weakness of Opposer’s mark, conceptually.
On balance, the specific differences in the marks, coupled with the conceptual
weakness of Opposer’s marks arising from the basic misspelling of the descriptive or
generic term “electrolyte” for the primary ingredient in Opposer’s goods, outweigh the
similarity of the goods and trade channels. As the Board and Federal Circuit have
recognized, even where the goods or services are similar, where the plaintiff’s mark
is conceptually weak, newcomers can come closer to that mark than if it was

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arbitrary, fanciful, or suggestive. See, e.g., Heil, 2024 TTAB LEXIS 494, at 96-97
(finding dissimilarity of the applicant’s TRIPLEYE mark and the opposer’s 3RD EYE
marks “pivotal … insofar as it, in conjunction with the conceptual weakness of the
only shared element of the parties’ marks (i.e., ‘EYE’), outweighs the other DuPont
factors.”). Consequently, we conclude that confusion is not likely.
V. Dilution
Our finding that Opposer has failed to show that its ELECTROLIT and
ELECTROLIT ZERO marks are commercially strong for purposes of Opposer’s
Section 2(d) claim also precludes Opposer’s dilution claim, in which the threshold
element is proof that it owns a “famous” mark. See Coach Servs., 668 F.3d at 1372 (“A
threshold question in a federal dilution claim is whether the mark at issue is
‘famous.’”). A mark is famous for dilution purposes if it “is widely recognized by the
general consuming public of the United States as a designation of source for the goods
or services of the mark’s owner.” Trademark Act Section 43(c), 15 U.S.C.
§ 1125(c)(2)(A). By using the “general consuming public” as the benchmark, the
Trademark Act eliminates the possibility of “niche fame,” which some courts had
recognized under the previous version of the statute. Coach Servs., 668 F.3d at 1372.
Fame for likelihood of confusion and fame for dilution are distinct concepts, and
dilution fame requires a more stringent showing. See 3 J. Thomas McCarthy,
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 24:104 (5th ed.) (“The
standard for the kind of ‘fame’ needed to trigger anti-dilution protection is more
rigorous and demanding than the ‘fame’ which is sufficient for the classic likelihood

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of confusion test.”). While fame for dilution “is an either/or proposition” — it either
exists or does not — fame for likelihood of confusion is a matter of degree along a
continuum.” Palm Bay, 396 F.3d 1369, 1375 (Fed. Cir. 2005). Accordingly, a mark can
acquire “sufficient public recognition and renown to be famous for purposes of
likelihood of confusion without meeting the more stringent requirement for dilution
fame.” Coach Servs., 668 F.3d at 1373 (quoting 7-Eleven, 2007 TTAB LEXIS 58, at
*22). It is well-established that dilution fame is difficult to prove. See Coach Servs.,
668 F.3d at 1373 (citing Toro Co. v. ToroHead Inc., No. 114061, 2001 TTAB LEXIS
823, at *54 (“Fame for dilution purposes is difficult to prove.”). Because Petitioner has
not proven that its ELECTROLIT or ELECTROLIT ZERO marks are commercially
strong for purposes of analyzing likelihood of confusion, a fortiori it has not proven
they are famous for dilution purposes.
Accordingly, we deny Petitioner’s dilution by blurring claim.
Decision: The opposition is dismissed.