Guy M. Kezirian

This Opinion is Not a
Precedent of the TTAB
Mailed: May 29, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Guy M. Kezirian
_____
Serial No. 98784078
_____
Robert S. Salter of Salter & Michaelson,
for Guy M. Kezirian.
Claudia Garcia, Trademark Examining Attorney, Law Office 111,
Chris Doninger, Managing Attorney.
_____
Before Thurmon, Stanley, and O’Connor
Administrative Trademark Judges.
Opinion by Stanley, Administrative Trademark Judge:
Guy M. Kezirian (“Applicant”) seeks to register on the Principal Register the
standard-character mark EPRO CONNECT (with “CONNECT” disclaimed) for
“Downloadable software in the nature of a mobile application for scheduling and
confirming appointments for others in the field of ophthalmology,” in International
Class 9.1
1 Application Serial No. 98784078 was filed on October 3, 2024, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging November 1, 2021 as the date of first use
anywhere and in commerce.

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The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used
in connection with the identified goods, so resembles the registered standard-
character mark EPRO SCHEDULER (with “SCHEDULER” disclaimed) for the goods
listed below, that it is likely to cause confusion, to cause mistake, or to deceive:
Computer software for automated scheduling, timekeeping
and payroll management which may be run on a local or
remote file-server, in International Class 9.2
When the refusal was made final, Applicant filed both an appeal and a request for
reconsideration. The Examining Attorney denied reconsideration, which resumed the
appeal. Applicant then filed a submission captioned “Supplemental/Renewed Request
for Reconsideration,” followed by its appeal brief. The case is fully briefed. We affirm
the refusal to register Applicant’s mark.3
Procedural Matter
As noted above, after the appeal was resumed following the denial of Applicant’s
Request for Reconsideration, Applicant filed its Supplemental/Renewed Request for
Reconsideration.4 We construe that filing as a request for remand to introduce
additional evidence. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) §§ 1207.02 (2025); cf. TBMP § 1209.04 (second request for
2 Registration No. 3261166 issued on the Principal Register on July 10, 2007 and has been
renewed. The cited registration is owned by ESO Solutions, Inc. (“Registrant”).
3 Citations to the prosecution file are to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system in .pdf format. Citations to the appeal record are to TTABVUE,
the Board’s online docketing system.
4 This submission was filed using the Trademark Electronic Application System (TEAS); it
was not filed in the Board proceeding.

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reconsideration will be treated as a request for remand whether or not it is captioned
as such). It is the Board’s practice to grant a request for remand to introduce
additional evidence only upon a showing of good cause. In re Houston, No. 77660948,
2012 WL 423805, at *2 n.6 (TTAB 2012) (citing TBMP § 1207.02), aff’d, 731 F.3d 1326
(Fed. Cir. 2013).
Here, Applicant does not offer any explanation for why the evidence was not
submitted earlier and therefore has not shown good cause for its request. See TBMP
§§ 1207.02 and 1209.04. Accordingly, the request is denied. In re HerbalScience
Group LLC, No. 77519313, 2010 WL 5651672, at *2 (TTAB 2010); see also In re
Taverna Izakaya LLC, No. 88612441, 2021 WL 5411210, at *1 (TTAB 2021) (“Any
request to supplement the record [after the notice of appeal is filed] must be
addressed through a separately filed and captioned written request to the Board for
a remand to introduce additional evidence based on good cause.”) (citing 37 C.F.R.
§ 2.142(d)). Nevertheless, because both Applicant and the Examining Attorney
treated the new evidence (i.e., the materials attached to Applicant’s filing) as of
record, and because the Examining Attorney addressed that evidence and Applicant’s
additional arguments in her brief, we exercise our discretion to consider the evidence
attached to the Supplemental/Renewed Request for Reconsideration.
Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.

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§ 1052(d). See also In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023).
Our determination under Section 2(d) is based on an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E. I. DuPont de Nemours
& Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”); see also In re Majestic Distilling
Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). When analyzing the likelihood of confusion
factors, the overriding concerns are not only to prevent buyer confusion as to the
source of the goods and services, but also to protect registrants from adverse
commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil
Co., 992 F.2d 1204, 1207-08 (Fed. Cir. 1993).
In any likelihood of confusion analysis, different DuPont factors may play a
dominant role and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1116 (Fed. Cir. 2024) (citing Tiger Lily Ventures Ltd. v. Barclays Cap.
Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). Varying weight may be assigned to each
factor depending on the evidence presented, and “any one of the factors may control
a particular case.” Id.; see also Charger Ventures, 64 F.4th at 1381. Although we
consider each DuPont factor for which there is evidence and argument, In re Guild
Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019), two key considerations are the
similarities between the marks and the similarities between the goods. In re
i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)). These factors, and
others, are discussed below.

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A. The Strength or Weakness of the Cited Mark
Because it may affect the scope of protection to which the cited mark is entitled,
we begin by considering the strength or weakness of the cited mark. “[T]he strength
of a mark is not a binary factor” and instead “varies along a spectrum from very strong
to very weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340 (Fed.
Cir. 2015) (internal citations omitted). “The weaker [the cited] mark, 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.” Id. at
1338.
In determining the strength of a cited mark, we consider both its inherent or
conceptual strength, based on the nature of the mark itself, and, if there is evidence
in the record of marketplace recognition of the mark, its commercial strength. See In
re Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010) (“A mark’s
strength is measured both by its conceptual strength . . . and its marketplace strength
….”). Conceptual or inherent strength is a measure of a mark’s distinctiveness. Id.
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). “Marks
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.” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362 (Fed.
Cir. 2023) (quoting Juice Generation, 794 F.3d at 1339); see also Jack Wolfskin

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Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797
F.3d 1363, 1373 (Fed. Cir. 2015).
In an ex parte appeal, the sixth DuPont factor, which considers “[t]he number and
nature of similar marks in use on similar goods,” permits an applicant to narrow the
scope of protection accorded a cited mark by introducing evidence of its conceptual or
commercial weakness.5 DuPont, 476 F.2d at 1361. The purpose of introducing
evidence of third-party marketplace use is “to show that customers have become so
conditioned by a plethora of such similar marks that customers ‘have been educated
to distinguish between different [such] marks on the bases of minute distinctions.’”
Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1324 (Fed.
Cir. 2018) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 1374 (Fed. Cir. 2005)). Accord Jack Wolfskin, 797 F.3d at
1373; Juice Generation, 794 F.3d at 1338-39. “Extensive evidence of third-party use
and registrations is ‘powerful on its face,’ even where the specific extent and impact
of the usage has not been established.” Jack Wolfskin, 797 F.3d at 1373-74 (quoting
Juice Generation, 794 F.3d at 1339).
5 The fifth DuPont factor examines the extent to which the public perceives the cited mark
as indicating a single source of origin, i.e., its fame or commercial strength. DuPont, 476 F.2d
at 1361. There is no evidence of record relating to commercial strength under the fifth DuPont
factor, but in an ex parte appeal, the owner of the cited registration is not a party, and the
Examining Attorney is under no obligation to demonstrate exposure to or recognition of the
cited mark in the marketplace. In re Integrated Embedded, No. 86140341, 2016 WL 7368696,
at *9 (TTAB 2016). See also TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP)
§ 1207.01(d)(ix) (Nov. 2025). The fifth DuPont factor, as is normally the case in ex parte
proceedings, is neutral. See In re Thomas, No. 78334625, 2006 WL 1258862, at *6 n.11 (TTAB
2006).

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Here, the cited registration issued on the Principal Register without a claim of
acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f),
and therefore we must presume that the cited mark as a whole is inherently
distinctive for Registrant’s goods even though the registration includes a disclaimer
of the term “SCHEDULER.” 15 U.S.C. § 1057(b); see Sock It to Me v. Fan, No.
91230554, 2020 WL 3027605, at *13 (TTAB 2020) (SOCK IT TO ME for socks “taken
as a whole, is inherently distinctive, although its strength is somewhat limited by its
first word, SOCK, which is generic for socks.”); Tea Bd. of India v. Republic of Tea,
Inc., No. 91118587, 2006 WL 2460188, at *21 (TTAB 2006) (“A mark that is registered
on the Principal Register is entitled to all Section 7(b) presumptions including the
presumption that the mark is distinctive and moreover, in the absence of a Section
2(f) claim in the registration, that the mark is inherently distinctive for the goods.”).
Nonetheless, we may consider whether an inherently distinctive mark, or portion
thereof, is “weak as a source indicator” in the course of a DuPont analysis. In re Fat
Boys Water Sports LLC, No. 86490930, 2016 WL 3915986, at *9 (TTAB 2016).
Applicant challenges the strength of the EPRO element in the cited mark in the
medical and technology software field by relying on purported third-party evidence,
including a Google search summary for “EPRO” and “SCHEDULER” and a list of
three third-party registrations. Applicant argues that: (1) “[t]he term ‘EPRO’ is not a
coined or arbitrary term but rather is understood as an acronym or shorthand in the
industry” and “[i]n the context of healthcare and software, ‘ePRO’ is widely recognized
to mean ‘electronic patient-reported outcomes,’ referring to digital health data tools”;

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(2) the combination of the “e-” prefix with “pro” is “descriptive of technology used for
collecting patient-reported data electronically – a concept well known in clinical trials
and health informatics”; (3) the third-party use evidence demonstrates that “different
companies and products incorporat[e] ‘EPRO’ or ‘ePro’ in their names, especially for
software, apps, or platforms in the medical and technology sectors” and “[t]he sheer
number of such usages (by unrelated entities) demonstrates that the public is exposed
to ‘EPRO’ references from many sources, and thus consumers are less likely to
assume any two ‘EPRO’-formative names are connected to the same origin”; (4) the
third-party registration evidence “shows that the USPTO has permitted multiple
registrations of marks containing ‘EPRO’ for related goods”; and (5) “the evidence of
real-world usage and the registration landscape confirm that consumers do not
associate ‘EPRO’ with a single source.”6
Applicant’s arguments are not persuasive, as they are premised on an improper
dissection of the mark. At the outset, we note that, on its face, “EPRO” combines the
prefix “e-” (commonly associated with “electronic” in technology contexts) with “pro”
(commonly associated with “professional”).7 However, “EPRO” as a unitary term does
6 Applicant’s Br., 6 TTABVUE 11-14; see also id. at 7 (the third-party use evidence
“illustrate[s] that consumers encounter ‘EPRO’ as a common prefix or acronym (often
meaning ‘electronic professional’ or referring to ‘Electronic Patient-Reported Outcomes’) used
by many unrelated entities, thus diluting any source significance” and the third-party
registrations “show that the USPTO has allowed various ‘EPRO’-formative marks to coexist,
indicating that ‘EPRO’ is not an exclusive source indicator”).
7 Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/e- and
https://www.merriam-webster.com/dictionary/pro (both accessed May 28, 2026). The Board
may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet
Food Imp. Co., No. 91061847, 1982 WL 52012, at *3 (TTAB 1982), aff’d, 703 F.2d 1372 (Fed.
Cir. 1983), including online dictionaries that exist in printed format or have regular fixed
editions. In re Red Bull GmbH, No. 75788830, 2006 WL 936983, at *3 (TTAB 2006).

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not have an established dictionary meaning. While “e-” and “pro” individually may
carry descriptive or suggestive connotations, their combination into a single term −
“EPRO” − creates a term that is, absent evidence to the contrary, inherently
distinctive for scheduling software. Applicant’s arguments notwithstanding, there is
no evidence in the record that “ePRO” is widely recognized in the healthcare and
software industries to mean “electronic patient-reported outcomes,” or that the
combination of the “e-” prefix with “pro” to describe technology used to collect patient-
reported data electronically is a concept well known in clinical trials and health
informatics — let alone that such a meaning would be understood by consumers of
scheduling software of the type identified in the application and cited registration. As
the Federal Circuit has explained, “[a]rgument is no substitute for evidence.” 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)).
We further note that even if “EPRO” has some degree of suggestiveness, that fact
alone does not render a mark weak for likelihood-of-confusion purposes. Suggestive
marks are entitled to registration on the Principal Register without proof of
secondary meaning precisely because they are inherently distinctive. See Spireon, 71
F.4th at 1362. The scope of protection for a suggestive mark may be narrowed when
evidence demonstrates that the term is so widely used in the marketplace that
consumers have become conditioned to distinguish among similar marks. But here,
Applicant has not made that showing.

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Applicant’s Google search results have limited probative value because they do
not provide sufficient context to determine how the term is used on the linked
webpages. Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, No. 92051006,
2014 WL 1390528, at *3 n.10 (TTAB 2014); see also In re Bayer AG, 488 F.3d 960, 967
(Fed. Cir. 2007) (“Search engine results—which provide little context to discern how
a term is actually used on the webpage that can be accessed through the search result
link—may be insufficient to determine the nature of the use of a term or the relevance
of the search results to registration considerations.”); In re Int’l Bus. Machs. Corp.,
No. 75581859, 2006 WL 3704639, at *3 n.3 (TTAB 2006) (listings of Google search
results were of limited probative value because the excerpts are extremely truncated).
The better practice would have been for Applicant to submit copies of representative
webpages showing actual use of the term. In re Country Music Ass’n, Inc., No.
78906900, 2011 WL 5600319, at *5 (TTAB 2011).
Even considering the search results to the extent possible, they do not show
weakness of the cited mark’s “EPRO” portion. Applicant’s Google search for “EPRO”
and “scheduling software” produced nine pages of results, but many of the results are
duplicative.8 In total, Applicant submitted thirteen unique results, four of which were
sponsored links. One sponsored link includes “EPRO” in the search result; the others
do not.9 Of the nine unique, non-sponsored link results, four expressly refer to
8 August 26, 2025 Request for Reconsideration, TSDR at 11-22. Only four pages of the results
appear unique; the other pages are duplicates of the first four pages. Id. at 11, 17, 21
(identical screenshots); id. at 12, 16, 20 (identical screenshots); id. at 13, 15, 19 (identical
screenshots); id. at 14, 18, 22 (identical screenshots).
9 Id. at 11 (result from castoredc.com referring to “Advanced ePro & eCOA System”).

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Registrant.10 As to the remaining five, it is unclear whether they refer to Registrant
or to unrelated third parties. We note, however, that four of those five results use the
same phrase as the cited mark − “ePro Scheduler.”11 Without additional context, we
cannot determine that these results demonstrate widespread third-party use of
“EPRO” for scheduling software.
Applicant’s reliance on three third-party registrations is likewise unpersuasive.
Those registrations were identified in a list submitted with Applicant’s Request for
Reconsideration, but the registrations themselves were not properly made of record.12
After the Examining Attorney advised Applicant that a list of registrations does not
make them part of the record and that copies of the registrations, or their complete
electronic equivalents, must be submitted prior to appeal,13 Applicant did not
supplement the record.14
10 Id. at 12-13 (results for softwarefinder.com, softwareadvice.com, capterra.com, and
ginasoftware.com each include references to “ESO,” the name of Registrant).
11 Id. (results from ems1.com referring to eCore’s “ePro Scheduler”; technologyevaluation.com
referring to “ePro Scheduler Plus”; selecthub.com referring to “EPRO Scheduler; and
softwaresuggest.com referring to “ePro Scheduler Plus”). The fifth link is from usfcr.com and
it refers to “ePro Scheduling Software.” Id. at 12.
12 Id. at 10.
13 October 16, 2025 Denial of Request for Reconsideration, TSDR at 7.
14 Even if we consider the listed registrations, the volume of third-party registrations is
underwhelming. Three third-party registrations are a very small number compared to the
number of marks in cases that have found weaknesses based on extensive registration of a
term. See, e.g., In re Inn at St. John’s, LLC, No. 87075988, 2018 WL 2734893, at *4 (TTAB
2018), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019) (four third-party registrations and no
third-party uses were “a far cry from the large quantum of evidence of third-party use and
third-party registrations that was held to be significant” in the Federal Circuit’s decisions in
Jack Wolfskin and Juice Generation); Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021
WL 6072822, at *13 (TTAB 2021) (discounting the probative value of six third-party
registrations on conceptual weakness).

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In sum, Applicant’s arguments and evidence are insufficient to demonstrate
conceptual or commercial weakness of the EPRO-portion of the cited mark for
Registrant’s goods. We therefore treat the sixth DuPont factor as neutral in our
likelihood of confusion analysis, and accord the cited mark “the normal scope of
protection to which inherently distinctive marks are entitled.” In re Info. Builders
Inc., No. 87753964, 2020 WL 2094122, at *10 (TTAB 2020).
B. The Marks
We turn now to the first DuPont factor, which involves an analysis of the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation, and commercial impression. Palm Bay Imps., 396 F.3d at 1371; see also
Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1319 (Fed. Cir. 2014).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” Inn at St. John’s, 2018 WL 2734893, at *5 (quoting In re Davia,
No. 85497617, 2014 WL 2531200, at *2 (TTAB 2014)); accord Krim-Ko Corp. v. Coca-
Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968) (“It is sufficient if the similarity in
either form, spelling or sound alone is likely to cause confusion.”) (citation omitted).
“Similarity is not a binary factor but is a matter of degree.” In re St. Helena Hosp.,
774 F.3d 747, 752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d 1340,
1344 (Fed. Cir. 2003)). The proper test regarding similarity “‘is not a side-by-side
comparison of the marks, but instead whether the marks are sufficiently similar in
terms of their commercial impression such that persons who encounter the marks
would be likely to assume a connection between the parties.’” Cai, 901 F.3d at 1373

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(quoting Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir.
2012)). “The focus is on the recollection of the average purchaser, who normally
retains a general rather than a specific impression of trademarks.” In re St. Julian
Wine Co., No. 87834973, 2020 WL 2788005, at *6 (TTAB 2020).
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, our finding must be based on the entire marks, not just part of
the marks. In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985). “No element
of a mark is ignored simply because it is less dominant, or would not have trademark
significance if used alone.” In re Electrolyte Labs. Inc., 929 F.2d 645, 647 (Fed. Cir.
1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293 (CCPA
1974)). Nonetheless, “in articulating reasons for reaching a conclusion on the issue of
confusion, there is nothing improper in stating that, for rational reasons, more or less
weight has been given to a particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their entireties.” In re Detroit
Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018) (quoting Nat’l Data, 753 F.2d at
1058).
With these principles in mind, we compare Applicant’s standard-character mark
EPRO CONNECT with the cited standard-character mark EPRO SCHEDULER.
Applicant argues that the marks differ in appearance, sound, meaning, and
commercial impression because: (1) “[a]side from the shared prefix ‘EPRO,’ the marks
look quite different”; (2) “[t]he two marks evoke different meanings[,]” with “Connect”
“connot[ing] linking, joining, or facilitating communication – suggesting that EPRO

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CONNECT might be a platform for connecting users (e.g. connecting patients with
providers, or connecting data systems)[,]” whereas “‘Scheduler’ plainly refers to
scheduling or calendar management”; and (3) “EPRO CONNECT, taken as a whole,
suggests a modern ‘e-pro’ (electronic professional/electronic process) solution centered
on connectivity” and “EPRO SCHEDULER gives the impression of a specialized
scheduling product[.]”15
Applicant’s arguments are again not persuasive. We agree with the Examining
Attorney that “EPRO” is the dominant portion of both marks. The terms “CONNECT”
and “SCHEDULER” have little source-identifying significance because they are
highly descriptive of, if not generic for, Applicant’s and Registrant’s respective goods,
and both were appropriately disclaimed. As a result, those terms are entitled to less
weight in our likelihood-of-confusion analysis. See Charger Ventures, 64 F.4th at 1382
(“[W]hile the Board must consider the disclaimed term, an additional word or
component may technically differentiate a mark but do little to alleviate confusion.”);
Cunningham v. Laser Golf Corp., 222 F.3d 943, 947 (Fed. Cir. 2000) (“Regarding
descriptive terms, this court has noted that the ‘descriptive component of a mark may
be given little weight in reaching a conclusion on likelihood of confusion.”’) (quoting
Nat’l Data, 753 F.2d at 1060); In re Code Consultants, Inc., No. 75645560, 2001 WL
1149619, at *4 (TTAB 2001) (disclaimed matter is often “less significant in creating
the mark’s commercial impression”).
15 Applicant’s Br., 6 TTABVUE 9-10.

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While Applicant is correct to emphasize that the disclaimed matter must also be
evaluated in considering the marks, the Examining Attorney did not ignore the
disclaimed matter. Rather, the Examining Attorney properly analyzed the marks by
comparing them in their entireties and recognizing that the most dominant and
memorable portion of Applicant’s mark and the cited mark, and the portion with the
greatest potential source-identifying impact, is the word “EPRO.”
That conclusion is reinforced by the fact that “EPRO” – a word that, as noted
above, is inherently distinctive for scheduling software − appears as the first word in
both marks. See Palm Bay Imps., 396 F.3d at 1372-73 (“The presence of this strong
distinctive term as the first word in both parties’ marks renders the marks similar,
especially in light of the largely laudatory (and hence non-source identifying)
significance of the word ROYALE.”); Century 21 Real Estate Corp. v. Century Life of
Am., 970 F.2d 874, 876 (Fed. Cir. 1992) (finding similarity between CENTURY 21
and CENTURY LIFE OF AMERICA in part because “consumers must first notice
th[e] identical lead word”); Presto Prods., Inc. v. Nice-Pak Prods. Inc., No. 91074797,
1988 WL 252340, at *3 (TTAB 1988) (“it is often the first part of a mark which is most
likely to be impressed upon the mind of a purchaser and remembered”).
While the marks are not identical in sound and appearance, they are similar in
sound and appearance in that they share the same dominant lead term, “EPRO.”
We now turn to the commercial impression of the marks. We acknowledge that
“CONNECT” and “SCHEDULER” are not synonymous. “Connect” suggests linking,
establishing communication, or facilitating interaction, whereas “Scheduler”

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suggests assigning a fixed time or calendaring tasks.16 These words evoke somewhat
different concepts − interaction versus organization − and we do not disregard those
differences. However, in the context of the respective goods identified − software for
scheduling and confirming appointments (Applicant) and software for automated
scheduling (Registrant) − both terms describe aspects of the same general activity:
facilitating the arrangement of scheduled events through software. “CONNECT”
describes the means by which scheduling is accomplished (linking the user to the
system or provider), while “SCHEDULER” describes the end result (a scheduled
event or calendared task). Both terms serve as descriptive modifiers of the dominant
term EPRO, and neither imparts a sufficiently distinctive commercial impression to
overcome the similarity created by the shared dominant element.
Moreover, because both marks use the same dominant and inherently distinctive
lead term “EPRO” for scheduling software, consumers familiar with one mark could
readily perceive the other as a variation or line extension from the same source. For
example, a consumer familiar with EPRO SCHEDULER as a scheduling tool may
encounter EPRO CONNECT and reasonably assume it is another product in the same
“EPRO” software line − perhaps one emphasizing connectivity or communication
features rather than automated scheduling.
16 April 15, 2025 Non-Final Office Action, TSDR at 10 (dictionary definition of “connect”). See
also Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/
schedule (accessed May 28, 2026). See supra at n.8 (taking judicial notice of dictionary
definition).

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This reasoning is not speculative. The record shows that software companies in
the scheduling and healthcare space commonly offer multiple related products under
a single brand umbrella, each with distinct functional descriptions.17 Against that
backdrop, encountering EPRO CONNECT and EPRO SCHEDULER for related
software would likely lead consumers to assume a common origin. See, e.g., Joel Gott
Wines, LLC v. Rehoboth Von Gott, Inc., No. 91197659, 2013 WL 5407313, at *10
(TTAB 2013) (“Purchasers of opposer’s GOTT and JOEL GOTT wines are likely to
assume that applicant’s goods, sold under the mark GOTT LIGHT and design, are
merely a line extension of goods emanating from opposer.”); Schieffelin & Co. v.
Molson Cos., Ltd., No. 91069312, 1989 WL 277823, at *4 (TTAB 1989) (“Those
consumers who do recognize the differences in the marks may believe that applicant’s
mark is a variation of opposer’s mark that opposer has adopted for use on a different
product.”).
Consumers also have a tendency to shorten marks, making it reasonable to
assume that at least some consumers will “drop the highly descriptive/generic term[s]
[CONNECT and SCHEDULER] when calling for” Applicant’s and Registrant’s
respective goods. In re Bay State Brewing Co., Inc., No. 85826258, 2016 WL 1045677,
17 See, e.g., October 16, 2025 Denial of Request for Reconsideration, TSDR at 23-39
(screenshots from ehnote.com, offering various medical practice management software for,
inter alia, appointment scheduling, billing and claims management, and patient counseling
under the same brand), 40-51 (screenshots from opthalmologyehr.com, offering practice
management software for, inter alia, scheduling appointments, managing prescriptions, and
revenue management under the same brand), 52-74 (screenshots from nexttech.com, offering
ophthalmology and plastic surgery practice management software and patient portal
products under the same brand).

Serial No. 98784078
- 18 -
at *3 (TTAB 2016) (when marks have clearly dominant elements, it is important to
“keep in mind the penchant of consumers to shorten marks”).
Applicant has not shown that consumers would attach a different connotation or
commercial impression to the identical word “EPRO” appearing in both marks. While
the disclaimed suffixes convey different descriptive information about the specific
functions of each product, that information does not overcome the dominant shared
impression created by “EPRO.”
In view of the foregoing, although we recognize that Applicant’s mark and the
cited mark are not identical, when we compare the marks in their entireties, there is
sufficient similarity to give rise to a likelihood of source confusion. This is true
especially when we keep in mind “the fallibility of memory over a period of time” and
that the “average” purchaser “normally retains a general rather than a specific
impression of trademarks.” Sealed Air Corp. v. Scott Paper Co., No. 91055167, 1975
WL 20752, at *3 (TTAB 1975). See also St. Helena Hosp., 774 F.3d at 751 (“marks
must be considered in light of the fallibility of memory”) (citation, internal quotation
marks, and ellipsis omitted).
Accordingly, the first DuPont factor weighs in favor of finding a likelihood of
confusion.
C. The Goods and Trade Channels
We turn next to the second DuPont factor, which considers the “similarity or
dissimilarity and nature of the goods or services as described in an application or
registration,” and the third DuPont factor, which considers “[t]he similarity or

Serial No. 98784078
- 19 -
dissimilarity of established, likely-to-continue trade channels.” Detroit Athletic, 903
F.3d at 1306, 1308 (quoting DuPont, 476 F.2d at 1361). In analyzing the relatedness
of the goods and trade channels under the second and third DuPont factors, we look
to the identifications in the application and cited registration. See id. at 1306 (“The
relevant inquiry in an ex parte proceeding focuses on the goods and services
described in the application and registration, and not on real-world
conditions.”) (emphasis in italics in original; in bold here); Stone Lion, 746 F.3d at
1323 (quoting Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 942
(Fed. Cir. 1990)) (“‘the question of registrability of an applicant’s mark must be
decided on the basis of the identification of goods set forth in the application’”).
“‘[I]t is not necessary that the products … be similar or even competitive to support
a finding of likelihood of confusion.’” Coach Servs., 668 F.3d at 1369 (quoting 7-Eleven,
Inc. v. Wechsler, No. 91117739, 2007 WL 1431084, at *6 (TTAB 2007)). “[L]ikelihood
of confusion may 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.’” Id.
Evidence of relatedness might include news articles and/or evidence from
computer databases showing that the relevant goods are used together or used by the
same purchasers; advertisements showing that the relevant goods are advertised
together or sold by the same manufacturer or dealer; and/or copies of prior use-based
registrations of the same mark for both an applicant’s goods (or similar goods) and
the goods listed in the cited registration (or similar goods). See, e.g., In re Country

Serial No. 98784078
- 20 -
Oven, Inc., No. 87354443, 2019 WL 6170483, at *2 (TTAB 2019); Davia, 2014 WL
2531200, at *7 (finding pepper sauce and agave related where evidence showed both
were used for the same purpose in the same recipes and thus consumers were likely
to purchase the products at the same time and in the same stores).
As noted above, the goods in Applicant’s application are “Downloadable software
in the nature of a mobile application for scheduling and confirming appointments for
others in the field of ophthalmology” and the goods in the cited registration are
“Computer software for automated scheduling, timekeeping and payroll management
which may be run on a local or remote file-server.”
We have long held that there is no per se rule that a likelihood of confusion must
be found whenever the goods or services at issue involve computer software or
hardware. More than forty years ago, and well before the current technological era,
we rejected such an approach:
As a result of the veritable explosion of technology in the
computer field over the last several years and the almost
limitless number of specialized products and specialized
uses in this industry, we think that a per se rule relating
to source confusion vis-a-vis computer hardware and
software is simply too rigid and restrictive an approach and
fails to consider the realities of the marketplace.
In re Quadram Corp., No. 73392270, 1985 WL 71982, at *2 (TTAB 1985). Instead of
focusing on the format of the software, we look to its purpose and field of use. See M2
Software, Inc. v. M2 Communs., Inc., 450 F.3d 1378, 1383 (Fed. Cir. 2006) (proper to
consider fields for which software goods are created rather than media format in
which they are delivered).

Serial No. 98784078
- 21 -
Here, both Applicant’s “downloadable software in the nature of a mobile
application” and Registrant’s “computer software … which may be run on a local or
remote file-server” are directed to scheduling functions. Applicant’s software is
limited to scheduling and confirming appointments for others in the field of
ophthalmology, while Registrant’s software is limited to automated scheduling,
timekeeping, and payroll management.
We recognize that the cited registration’s identification includes timekeeping and
payroll management alongside automated scheduling. Those, however, are additional
functions performed by the software − not qualifiers that limit the type of scheduling
involved. Nothing in the identification restricts “automated scheduling” to employee
scheduling, shift scheduling, or any other specific variety. See In re OSF Healthcare
Sys., No. 88706809, 2023 WL 6140427, at *4 (TTAB 2023) (“we must construe the
services identified in the cited registration as broadly as reasonably possible ‘to
include all [services] of the nature and type described therein’”) (quoting In re Solid
State Design Inc., No. 87269041, 2018 WL 287909, at *6 (TTAB 2018)). As such, the
identification of goods in the cited registration is broad enough to encompass
scheduling of the type identified in Applicant’s application, including the scheduling
of patient appointments in a medical context. Likewise, the word “scheduling” in
Applicant’s identification encompasses “automated scheduling” in the cited
registration. Thus, the identifications overlap in purpose and function: both cover
software that performs scheduling tasks, which may include scheduling of patient
appointments.

Serial No. 98784078
- 22 -
We acknowledge that the overall character of the goods may differ − one being a
patient-facing appointment tool in a medical specialty, the other being an enterprise
management suite that includes scheduling, timekeeping, and payroll functions. But
under settled law, the goods need not be identical or even directly competitive to
support a finding of relatedness. Coach Servs., 668 F.3d at 1369. They need only be
“related in some manner and/or if the circumstances surrounding their marketing are
such that they could give rise to the mistaken belief that they emanate from the same
source.” Id. The shared scheduling function – supported by the third-party evidence
discussed below − satisfies this standard.
The Examining Attorney submitted third-party Internet evidence showing that
the same entity commonly provides the relevant goods under the same mark and that
the goods are sold through the same trade channels.18 Specifically, the record includes
screenshots from websites showing software providers in the ophthalmology and
broader medical fields offering (1) software used for scheduling appointments,
including automatically,19 and (2) downloadable computer software in the nature of
mobile applications and for non-mobile applications that perform appointment-
scheduling functions.20
18 August 8, 2025 Final Office Action, TSDR at 9-60; October 16, 2025 Denial of Request for
Reconsideration, TSDR at 10-100.
19 August 8, 2025 Final Office Action, TSDR at 9-59 (screenshots from qless.com,
squareup.com, wllsky.com, timify.com, carepatron.com, and prognocis.com).
20 October 16, 2025 Denial of Request for Reconsideration, TSDR at 10-100 (screenshots from
doctorconnect.net, getapp.com, ehnote.com, opthalmolgyehr.com, nextech.com,
nexhealth.com, qgenda.com, coastapp.com).

Serial No. 98784078
- 23 -
This evidence shows that consumers are accustomed to encountering software of
the type identified in the application and registration from a single source under a
single mark. See Detroit Athletic, 903 F.3d at 1306 (evidence that third parties use
the same mark for the involved goods and services “suggests that consumers are
accustomed to seeing a single mark associated with a source that sells both”); 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 Davey Prods. Pty Ltd., No. 77029776, 2009
WL 2420527, at *5 (TTAB 2009) (third-party website evidence shows that the
applicant’s and registrant’s products “can be manufactured and sold by a single
source”).
In view of the foregoing, we find that the goods identified in the application are
related to the goods identified in the cited registration. See, e.g., In re C.H. Hanson
Co., No. 77983232, 2015 WL 6121759, at *6 (TTAB 2015) (six websites showing sale
of the subject goods, coupled with five third-party registrations of marks for them,
“support the conclusion that the goods are related”).
Turning to the trade channels, the third-party Internet evidence discussed above
supports that Applicant’s and Registrant’s goods are offered by the same entities via
the same websites, demonstrating overlapping trade channels. See, e.g., Charger
Ventures, 64 F.4th at 1382 (third-party website evidence showed that services and
channels of trade were similar); Davey Prods. Pty, 2009 WL 2420527, at *5 (website

Serial No. 98784078
- 24 -
evidence of third parties offering goods of both applicant and registrant showed same
or overlapping channels of trade and purchasers).
Applicant argues that the second and third DuPont factors weigh against a
likelihood of confusion because, inter alia: (1) “there are significant differences in the
specific nature and market focus of the respective goods, as well as the likely channels
of trade and consumers”; (2) “Applicant’s software is specifically a mobile application
for scheduling and confirming appointments in the field of ophthalmology” whereas
Registrant’s software “provides automated employee scheduling, timekeeping, and
payroll management” and is “marketed primarily to emergency services and
workforce management contexts”; (3) Applicant’s and Registrant’s software “occupy
different market niches”; (4) Applicant’s software “is typically downloaded by an end-
user (e.g., a patient or doctor) onto a personal smartphone or tablet via a commercial
app store” whereas Registrant’s software is “server-based software typically procured
and installed by an IT department for an entire enterprise”; and (5) Applicant’s
software is “marketed to eye doctors’ offices, clinics, or directly to patients of those
clinics” and Registrant’s software is “marketed to organizational administrators (e.g.,
EMS chiefs, hospital staffing coordinators, etc.) and likely sold through B2B software
channels, enterprise sales, or industry trade shows for emergency services
management.”21
These arguments are again not persuasive. As we have explained in innumerable
decisions, the Board may not consider arguments “about how the parties’ actual
21 Applicant’s Br., 6 TTABVUE 14-16.

Serial No. 98784078
- 25 -
goods, services, customers, trade channels, and conditions of sale are narrower or
different from the goods and services identified in the applications and registrations.”
In re FCA US LLC, No. 85650654, 2018 WL 1756431, at *4 n.18 (TTAB 2018)
(emphasis in italics in original; in bold here); see also, e.g., i.am.symbolic, 866 F.3d at
1327 (“[T]he Board properly declined to import restrictions into the identification of
goods based on alleged real-world conditions.”). The identifications themselves
control. See Nat’l Football League v. Jasper Alliance Corp., No. 91077966, 1990 WL
354523, at *4 & n.5 (TTAB 1990).
We recognize that Applicant’s software serves the ophthalmology field and that
Registrant’s software may, in practice, serve a different market. However, because
the cited registration contains no industry limitation, we must presume it
encompasses automated scheduling software for all industries, including healthcare
generally and ophthalmology specifically, and including for appointment-scheduling
purposes. Applicant’s limitation to downloadable mobile application software and the
cited registration’s reference to computer software that may be run on a local or
remote file-server does not avoid relatedness. The evidence of record shows that
entities commonly offer both mobile and non-mobile software for administrative
functions, including scheduling appointments. The format or delivery mechanism of
the software does not establish that the goods are unrelated when the core
functionality − scheduling − is the same.
Moreover, neither identification includes restrictions on channels of trade or
classes of purchasers. The computer software identified in the cited registration is

Serial No. 98784078
- 26 -
not limited to being marketed or offered only to “organizational administrators (e.g.,
EMS chiefs, hospital staffing coordinators, etc.)”; nor is it limited to being “sold
through B2B software channels, enterprise sales, or industry trade shows for
emergency services management.” Rather, absent such restrictions, we must
presume that Registrant’s software is sold in all normal channels of trade and to all
ordinary purchasers for such software, including those in the ophthalmology field.
See, e.g., Nike, Inc. v. WNBA Enters., LLC, No. 91160755, 2007 WL 763166, at *7
(TTAB 2007) (“Absent any restrictions in the respective applications and
registrations, we must presume that applicant’s apparel and bags and opposer’s
apparel are sold through all normal channels of trade for those goods, including all
the usual retail outlets.”).
The Examining Attorney has demonstrated that Applicant’s and Registrant’s
goods are related and that their trade channels overlap. Accordingly, the second and
third DuPont factors favor a likelihood of confusion.
D. Purchasing Conditions
DuPont also tells us to consider the “conditions under which … sales are made,
i.e. ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 476 F.2d at 1361.
Purchaser sophistication or degree of care may tend to minimize likelihood of
confusion. See, e.g., Magnaflux Corp. v. Sonoflux Corp., 231 F.2d 669, 671 (CCPA
1956) (“[C]onfusion is less likely where goods are expensive and are purchased after
careful consideration than where they are inexpensive and are purchased casually.”)

Serial No. 98784078
- 27 -
(citations omitted). Conversely, impulse purchases of inexpensive goods or services
may tend to have the opposite effect. Palm Bay Imps., 396 F.3d at 1376.
Applicant asserts that “[t]he relevant consumers for both [Applicant’s and
Registrant’s] products are relatively sophisticated and will exercise care in selection”
because “the users [of Applicant’s products] may include ophthalmology practice
managers, doctors, or tech-savvy patients” and “the users [of Registrant’s products]
are institutional buyers (e.g., a company or department adopting a scheduling/payroll
system)[.]”22 Applicant further contends that “[a]n ophthalmologist or clinic manager
is likely aware that ‘ePro’ is a common term in the industry and would pay attention
to the specific product name (CONNECT vs. SCHEDULER)” and “a procurement
officer for an EMS scheduling software will be attuned to the specific brand and
features.”23
Applicant’s application and the cited registration identify goods that are not
restricted by price or level of consumer sophistication, and the cited registration is
not limited to any particular industry. Consumers for Applicant’s goods include
medical practice managers selecting software to integrate with their clinical systems,
and consumers for Registrant’s goods include administrators selecting scheduling
and payroll platforms. These consumers are likely to exercise some degree of care in
purchasing the relevant goods. Info. Builders Inc., 2020 WL 2094122, at *6 (“some
degree of purchasing care may be exercised” in view of the inherent nature of the
22 Applicant’s Br., 6 TTABVUE 16-17.
23 Id. at 17.

Serial No. 98784078
- 28 -
involved computer software goods and computer system services). The consumers for
Applicant’s goods, however, are not limited to medical practice managers, as
Applicant acknowledges that the consumers for its goods include patients that
download the mobile app and use it to schedule appointments. Nothing in the record
supports that all of Applicant’s patients are “tech-savy.” We can infer from the nature
of Applicant’s goods that potential purchasers may include sophisticated as well as
unsophisticated consumers, and we must base our decision “on the least sophisticated
potential purchasers.” Stone Lion, 746 F.3d at 1325.
On balance, we view this factor as neutral or at best slightly weighing against
finding a likelihood of confusion.
E. Actual Confusion or the Lack Thereof
Under the seventh and eighth DuPont factors, we consider the nature and extent
of actual confusion, if any, in light of the length of time and conditions under which
there has been contemporaneous use of the subject marks. DuPont, 476 F.2d at 1361.
Applicant contends that “Applicant’s mark has coexisted in the marketplace since
at least late 2021 alongside the cited mark without any known incidents of confusion”
and “[g]iven that EPRO SCHEDULER has existed since around 2006 and serves a
user base in certain industries, and EPRO CONNECT has been used in
ophthalmology for a few years, the lack of any reported confusion … supports the
conclusion that the marks are sufficiently distinct in commerce.”24
24 Applicant’s Br., 6 TTABVUE 17.

Serial No. 98784078
- 29 -
Applicant’s argument regarding the absence of actual confusion is misplaced. To
begin, “a showing of actual confusion is not necessary to establish a likelihood of
confusion.” Herbko Int’l, 308 F.3d at 1165 (citing Giant Food, Inc. v. Nation’s
Foodservice, Inc., 710 F.2d 1565, 1571 (Fed. Cir. 1983)). Moreover, “uncorroborated
statements of no known instances of actual confusion are of little evidentiary value.”
Majestic Distilling, 315 F.3d at 1317. We also have no evidence of whether the extent
and circumstances of Applicant’s and Registrant’s uses of their respective marks have
been such as to give rise to meaningful opportunities for actual confusion to occur. In
re Kangaroos U.S.A., No. 319021, 1984 WL 63596, at *2 (TTAB 1984); see also Guild
Mortg., 912 F.3d at 1380-81 (suggesting that “evidence of concurrent use of the two
marks for a particularly long period of time—over 40 years—in which the two
businesses operated in the same geographic market—southern California—without
any evidence of actual confusion” may be probative under the eighth DuPont factor).
In view thereof, the seventh and eighth DuPont factors are neutral.
F. Applicant’s Prior Application
Applicant contends that the Examining Attorney’s refusal to register Applicant’s
mark is inconsistent with the examination of Applicant’s previously-filed Application
Serial No. 97855730 for the identical mark EPRO CONNECT (the “Prior
Application”).25 Applicant asserts that the Prior Application was examined by a
different examining attorney, who initially refused registration based on a likelihood
of confusion with the cited EPRO SCHEDULER mark at issue here, but later
25 Applicant’s Br., 6 TTABVUE 18.

Serial No. 98784078
- 30 -
withdrew the refusal after Applicant argued that there was no likelihood of confusion
between the EPRO CONNECT mark in that application and EPRO SCHEDULER.26
Applicant represents that it “ultimately abandoned [the Prior Application] in favor of
the present application, which sought to address concerns raised by the prior
Examining Attorney.”27 Applicant argues that “[t]he USPTO has an obligation to
provide consistent examination and fair treatment of similar applications” and
“significant inconsistencies in examination can constitute reviewable administrative
error and violate principles of due process.”28
We consider Applicant’s arguments regarding the Prior Application under the
thirteenth DuPont factor, which pertains to “any other established fact probative of
the effect of use,” DuPont, 476 F.2d at 1361, and “accommodates the need for
flexibility in assessing each unique set of facts[.]” Country Oven, 2019 WL 6170483,
at *8.
Applicant’s position has multiple problems. First, we need not resolve the factual
dispute between Applicant and the Examining Attorney regarding whether the prior
26 Id.
27 Id.
28 Id. In response to Applicant’s argument, the Examining Attorney contends that the present
application was “examined similarly” to the Prior Application and that “it does not appear to
be the case that the previous examiner ‘reached a different conclusion regarding the cited
mark (EPRO SCHEDULER)’ or that ‘[t]he prior examining attorney accepted Applicant's
argument that EPRO SCHEDULER was not a bar to registration of EPRO CONNECT’.”
Examining Attorney’s Br., 8 TTABVUE 11. In reply, Applicant asserts that the Examining
Attorney is mistaken: “While the prior application for the identical mark EPRO CONNECT
initially received a Section 2(d) refusal citing EPRO SCHEDULER (Reg. No. 3261166), that
refusal was obviated in the final office action dated April 22, 2024.” Applicant’s Reply Br., 9
TTABVUE 4.

Serial No. 98784078
- 31 -
examining attorney ultimately withdrew the Section 2(d) refusal. Even assuming
arguendo that the prior examining attorney did withdraw the refusal in the Prior
Application, and even assuming that the identification of goods is not materially
different, that determination would not change our analysis. The Board is not bound
by prior decisions of examining attorneys. In re Cordua Rests., Inc., 823 F.3d 594, 600
(Fed. Cir. 2016) (“The [US]PTO is required to examine all trademark applications for
compliance with each and every eligibility requirement . . . even if the PTO earlier
mistakenly registered a similar or identical mark suffering the same defect.”); see also
In re Blvd. Entm’t Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003) (“The fact that, whether
because of administrative error or otherwise, some marks have been registered even
though they may be in violation of the governing statutory standard does not mean
that the agency must forgo applying that standard in all other cases.”). Each
application must be assessed on its own record and merits. A prior examining
attorney’s decision − whether to issue, maintain, or withdraw a refusal − does not
establish a legal entitlement to registration in a subsequent application. In re Nett
Designs Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001) (“[T]he [US]PTO’s allowance of
such prior registrations does not bind the Board or this court.”).
Second, the Prior Application is not of record, so we cannot compare its identified
goods with those in the present application. Without that information, we cannot
determine whether the prior examining attorney may have reached a different result
based on materially different identifications of goods. It is possible that the identified
goods in the Prior Application were sufficiently different from those now before us

Serial No. 98784078
- 32 -
such that the previous examining attorney found Applicant’s arguments convincing
to distinguish between the previously applied-for EPRO CONNECT mark and the
EPRO SCHEDULER mark, whereas the Examining Attorney for the present
application did not find such arguments convincing. Applicant does not state whether
the identifications are the same.
Accordingly, the examination of Applicant’s Prior Application does not compel
approval of the application before us. In view thereof, the thirteenth DuPont factor is
neutral.
Conclusion – Balancing the DuPont Factors
The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there is evidence and argument, “explain the results of that weighing,” and
address “the weight [we] assigned to the relevant factors.” Charger Ventures LLC, 64
F.4th at 1384. “No mechanical rule determines likelihood of confusion, and each case
requires weighing of the facts and circumstances of the particular mark.” In re Mighty
Leaf Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010); see also Naterra Int’l, 92 F.4th at
1116-17 (“Only the DuPont factors of significance to the particular mark need be
considered in the likelihood of confusion analysis.”).
After carefully considering the entire record and the parties’ arguments, we find
that the marks are similar in appearance, sound, meaning, and commercial
impression, which weighs in favor of a likelihood of confusion. The goods identified in
the application and cited registration are related, and the record shows they move in
the same trade channels; these factors also weigh in favor of a likelihood of confusion.

Serial No. 98784078
- 33 -
Purchaser sophistication is neutral, or at best slightly weighs against a likelihood of
confusion. All other DuPont factors we considered are neutral.
On balance, the factors favoring a likelihood of confusion − similarity of the marks,
relatedness of the goods, and overlapping trade channels − outweigh the one factor
against − purchaser sophistication. As we frequently note, even sophisticated or
careful purchasers are not immune from source confusion, particularly when
confronted with similar marks for related goods. The marks at issue share an
identical dominant term, the goods overlap in function, and the record shows that
entities in the relevant market commonly offer related products under a single brand.
Under these circumstances, even careful purchasers may assume that EPRO
CONNECT and EPRO SCHEDULER emanate from the same source or that one is a
line extension of the other. See Shell Oil, 992 F.2d at 1208 (“even sophisticated
purchasers can be confused by very similar marks”); Weiss Assocs., Inc. v. HRL
Assocs., Inc., 902 F.2d 1546, 1548 (Fed. Cir. 1990) (similarities of goods and marks
outweighed sophisticated purchasers, careful purchasing decision, and expensive
goods); In re Research & Trading Corp., 793 F.2d 1276, 1279 (Fed. Cir. 1986) (quoting
Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 1406 (CCPA
1970)) (“That the relevant class of buyers may exercise care does not necessarily
impose on that class the responsibility of distinguishing between similar trademarks
for similar goods. ‘Human memories even of discriminating purchasers … are not
infallible.”’). Accordingly, we find that confusion is likely.
Decision: The Section 2(d) refusal to register is affirmed.