New Covenant Dominion Federal Credit Union

This Opinion is not a
Precedent of the TTAB
Mailed: September 1, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re New Covenant Dominion Credit Union
_____
Serial No. 98335916
_____
Scott L. Bittman of Crowell & Moring LLP
for New Covenant Dominion Credit Union.
Natalie Kenealy, Trademark Examining Attorney, Law Office 104,
Zachary Cromer, Managing Attorney.
_____
Before Heasley, Elgin, and Casagrande,
Administrative Trademark Judges.
Opinion by Heasley, Administrative Trademark Judge:
New Covenant Dominion Credit Union (“Applicant”) seeks registration on the
Principal Register of the mark NEW COVENANT DOMINION CREDIT UNION (in
standard characters, with “CREDIT UNION” disclaimed) for “Credit union services;
banking services; credit, financing and loan services; credit union services provided

Serial No. 98335916
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by mobile telephone and internet connections; none of the aforementioned services
related to mutual funds,” in International Class 36.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the cited registered mark NEW COVENANT FUNDS (in
standard characters, with “FUNDS” disclaimed) for “Mutual fund brokerage,
investment and distribution services; and establishing mutual funds for others” in
International Class 36.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal proceeded. The matter is fully briefed. We affirm the
refusal to register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act provides that a mark may be refused registration
if it:
Consists of or comprises a mark which so resembles a mark
registered in the Patent and Trademark Office, or a mark
1 Application Serial No. 98335916 was filed on December 29, 2023, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of first use anywhere and
use in commerce since at least as early as August 2022.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system and identify the documents by title, date, and page in the
downloadable .pdf version. References to the briefs and other materials in the appeal record
refer to the Board’s TTABVUE online docketing system.
2 Registration No. 2662029 issued on the Principal Register on December 17, 2002, and has
been renewed.

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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).
To determine whether there is a likelihood of confusion between marks under
Section 2(d), we analyze the evidence and arguments under the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (the “DuPont
factors”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 145 (2015).
“The weight given to each factor depends on the circumstances of each case.” In re
Charger Ventures LLC, 64 F.4th 1375, 1381 (Fed. Cir. 2023). “The likelihood of
confusion analysis considers all DuPont factors for which there is evidence of record
but ‘may focus … on dispositive factors, such as similarity of the marks and
relatedness of the [services].’” Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d
1261, 1265 (Fed. Cir. 2002) (quoting Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d
1333, 1336 (Fed. Cir. 2001)); see also Sunkist Growers, Inc. v. Intrastate Dist., Inc.,
144 F.4th 1376, 1379 (Fed. Cir. 2025).
A. Similarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 476 F.2d at
1361. “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, LLC, No. 87075988, 2018 WL 2734893,
*5 (TTAB 2018) (citing In re Davia, No. 85497617, 2014 WL 2531200, *2 (TTAB

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2014)), aff’d, 777 F. App’x 516 (Fed. Cir. 2019); Cecile Gagnon Co. v. Bourjois, Inc.,
223 F.2d 731, 733 (CCPA 1955) (“And with respect to sound, meaning, and
appearance, substantial identity between the marks in any one or more of such
attributes is, in of itself, fatal to the registration of his mark by an applicant.”). “[T]he
‘similarity or dissimilarity of the marks in their entireties’ is a predominant inquiry.”
Heil Co. v. Tripleye GmbH, No. 91277359, 2024 WL 4925901, *29 (TTAB 2024).
Again, the cited registered mark is NEW COVENANT FUNDS with “FUNDS”
disclaimed, and Applicant’s mark is NEW COVENANT DOMINION CREDIT
UNION with “CREDIT UNION” disclaimed.
The Examining Attorney observes that “[i]n this case, the entire source indicating
portion of the registrant’s mark – NEW COVENANT – is encompassed in the applied-
for mark”;3 “[c]onsumers are generally more inclined to focus on and remember the
first word, prefix, or syllable in a mark”;4 and “[t]he marks are similar in sound,
appearance and meaning because they share the first wording NEW COVENANT
and the additional matter in the respective marks is less dominant in creating the
overall commercial impression.”5
Applicant argues that “[t]he shared phrase, ‘NEW COVENANT,’ refers to the
covenant between God and the followers of Jesus Christ and connotes a plainly
religious (in particular, Christian) association.”6 The Examining Attorney responds
33 Examining Attorney’s brief, 8 TTABVUE 5.
4 Id. at 5.
5 Id.
6 Applicant’s main brief, 6 TTABVUE 15. Applicant continues: “Indeed, both Applicant and
the registrant of the Cited Mark have a church-related background. See December 29, 2023

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that “[t]he fact that the shared term ‘new covenant’ creates a reference to Christian
theology does not show that the shared term is weak. Rather, the evidence of record
from the USPTO’s TESS search database shows that the registered mark is the only
registered mark containing the wording NEW COVENANT for related services in
Class 36 (Final Refusal of April 9, 2025, at p. 16).”7
We agree with the Examining Attorney that the shared wording NEW
COVENANT is the most dominant, distinctive part of both marks. See, e.g., In re
Detroit Athl. Co., 903 F.3d 1297, 1303 (Fed. Cir. 2018) (“The identity of the marks’
initial two words is particularly significant because consumers typically notice those
words first.”) (citations omitted); Century 21 Real Estate Corp. v. Century Life of Am.,
970 F.2d 874, 876 (Fed. Cir. 1992) (“[U]pon encountering each mark, consumers must
first notice this identical lead word.”); Presto Prods., Inc. v. Nice-Pak Prods. Inc., No.
91074797, 1988 WL 252340, *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”); In re
Dare Foods Inc., No. 88758625, 2022 WL 970319, *6 (TTAB 2022) (“the term
Specimen, TSDR p. 1 (The Applicant “was chartered on March 23, 2007 by the National
Credit Union Administration because of the diligent efforts of the church leadership of New
Covenant Faith and Miracle Arena, Inc.”) (emphasis added); January [3]0, 2025 Response to
Office Action, TSDR Ex. C, p. 1 (“Whether your mission is to find a particular investment
style, strive to meet personal or organizational goals, adopt socially responsible investing
principles, or support the mission of the Presbyterian Church – New Covenant Funds offer a
diversity of investment approaches and charitable giving options”) (emphasis added).” 6
TTABVUE 15.
7 Examining Attorney’s brief, 8 TTABVUE 7. TESS was retired in November 2023 and
replaced with the new Trademark Search system, which is the database appearing in the
evidence of record. Final Office Action of April 9, 2025, at 16.

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RAINCOAST appears first in both marks and as such, it is most likely to be impressed
in purchasers' memories”) (citation omitted).
To those consumers familiar with the religious definition of “NEW COVENANT,”
the shared wording would be suggestive of its provenance, and would, if anything,
underscore the similarity of the marks.8 To those consumers who are unfamiliar with
the religious definition, the term would appear to be arbitrary, and therefore
conceptually strong. Nautilus Grp. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 1340
(Fed. Cir. 2004) (“[A]n arbitrary mark is a known word used in an unexpected or
uncommon way.”). According to the Examining Attorney, that conceptual strength is
undergirded by its status as the only registered mark containing the wording NEW
COVENANT for services in Class 36.
Applicant argues that DOMINION in its mark suffices to distinguish the marks:
“DOMINION” means “the power or right of governing and controlling;
sovereign authority” or “rule; control.” See January 30, 2025 Response to
Office Action, TSDR Ex. D. The combination of the term “DOMINION”
with the phrase “NEW COVENANT,” when used with Applicant’s services,
communicates that Applicant is a sanctuary of financial empowerment and
consumers (specifically Christians) can exercise control over all aspects of
their lives, including their financials.9
The Examining Attorney rejoins that “the added term DOMINION merely
reinforces the importance of the shared ‘new covenant’ in the mind of a consumer.”10
8 Merriam-Webster.com 7/10/2026 “: a promise of redemption by God to people as individuals
rather than as a nation and on the basis of God’s grace rather than a person’s adherence to
the law” The Board may take judicial notice of dictionary definitions, including definitions
from online dictionaries that exist in printed format or have fixed regular editions. See, e.g.,
In re Nursecon, LLC, No. 88052194, 2024 WL 5265079, *10 n.64 (TTAB 2024).
9 Applicant’s main brief, 6 TTABVUE 16.
10 Examining Attorney’s brief, 8 TTABVUE 6.

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We note that if the dominant portion of both marks is the same, then the marks
may be confusingly similar notwithstanding peripheral differences. See In re Mighty
Leaf Tea, 601 F.3d 1342, 1347-48 (Fed. Cir. 2010). “[I]nclusion of a merely suggestive
or descriptive element” to marks whose dominant terms are identical “is of much
less significance in avoiding a likelihood of confusion.” Wella Corp. v. Cal. Concept
Corp., 558 F.2d 1019, 1022 (CCPA 1977). Despite Applicant’s efforts to connect
DOMINION with its particular sort of financial services, a mark’s meaning is based
on the impression actually created by the mark in the minds of consumers, not on the
impression that applicant intends to convey. Fuente Mktg. Ltd. v. Vaporous Techs.,
LLC, 172 F.4th 1337, 1342 (Fed. Cir. 2026) (citing TRADEMARK MANUAL OF EXAMINING
PROCEDURE (TMEP) § 808.02). And that impression tends to be general rather than
specific. Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022
WL 16646840, *18 (TTAB 2022). DOMINION is a peripheral difference that does
nothing to meaningfully distinguish the marks. To this we add the noted penchant
of consumers to shorten marks, in this case disregarding “DOMINION.” In re Bay
State Brewing Co., No. 85826258, 2016 WL 1045677, *3 (TTAB 2016). In short, we
are unconvinced that the inclusion of DOMINION after the first two terms in
Applicant’s mark serves to differentiate the respective marks in consumers’ minds.
Applicant argues that the trailing terms “FUNDS” and “CREDIT UNION,” though
disclaimed, nonetheless inform the meaning of each mark: “Because credit union
services and mutual fund services occupy very distinct sectors of the financial
industry…, these ending terms convey fundamentally different commercial

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connotations.”11 Applicant addresses this distinction in financial services more
thoroughly under the second DuPont factor. The Examining Attorney emphasizes
that since the marks begin with the identical wording, the additional wording is less
dominant in creating the overall commercial impression of the marks.12
We agree with the Examining Attorney on this point. The trailing, nondistinctive
terms FUNDS and CREDIT UNION do little to distinguish the marks from one
another. Registrant’s mark is NEW COVENANT FUNDS with “FUNDS” disclaimed,
not “MUTUAL FUNDS.” The trailing disclaimed term “FUNDS” covers a broader
range of financial services: “a: a sum of money or other resources whose principal or
interest is set apart for a specific objective b: money on deposit on which checks or
drafts can be drawn.”13 That broadly encompasses ordinary bank deposits of the sort
offered by credit unions, among other banking institutions. The Federal Circuit’s
observation in Charger Ventures is apt here: “So, while the Board must consider the
disclaimed term, an additional word or component may technically differentiate a
mark but do little to alleviate confusion.” 64 F.4th at 1382 (quoting Detroit Athl., 903
F.3d at 1304-05).
On the whole, then, we find the marks are similar, and that the first DuPont factor
weighs in favor of finding a likelihood of confusion.
11 Applicant’s main brief, 6 TTABVUE 16.
12 Examining Attorney’s brief, 8 TTABVUE 4.
13 Merriam-Webster.com 7/14/2026.

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B. Relatedness of the Services
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration ….” Detroit Athl.,
903 F.3d at 1306. It “considers whether the consuming public may perceive the
respective goods and services of the parties as related enough to cause confusion
about the source or origin of the goods and services.” Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1117 (Fed. Cir. 2024) (citing In re St. Helena Hosp., 774 F.3d 747, 752
(Fed. Cir. 2014) (cleaned up)).
“The relevant inquiry in an ex parte proceeding focuses on the goods and services
described in the application and registration.” Charger Ventures, 64 F.4th at 1383. In
this case, we have Applicant’s “Credit union services; banking services; credit,
financing and loan services; credit union services provided by mobile telephone and
internet connections; none of the aforementioned services related to mutual funds,”
and Registrant’s “Mutual fund brokerage, investment and distribution services; and
establishing mutual funds for others.”
The Examining Attorney maintains that the services are related because it is
common for the same entity to provide both banking services, including credit union
services (as in Applicant’s mark), and mutual fund services (as in the registered
mark) under the same mark.14 According to the Examining Attorney, “[t]he record in
this case consists of evidence from thirteen different entities in the United States that
14 Examining Attorney’s brief, 8 TTABVUE 7.

Serial No. 98335916
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provide banking and/or credit union services together with the registrant’s mutual
fund management, establishment and brokerage services.”15 These are:
• US Bank (Office Action of Nov. 18, 2025, at 5-9);
• HSBC (Office Action of Aug. 2, 2024, at 9-10) offering banking and
“Comprehensive services for mutual funds”
• USAA (the evidence from USAA shows that they provide “banking” services
and that their “investing” services include “mutual funds” with “access [to]
professional managed, diversified portfolios” Office Action of Aug. 2, 2024, at
11-12)
• First National Bank (Office Action of Aug. 2, 2024, at 13)
• Liberty Savings Federal Credit Union (Office Action of Apr. 9, 2025, at 21-
23)
• Heritage (Office Action of Apr. 9, 2025, at 25-28)
• Kindred Credit Union (Office Action of Apr. 9, 2025, at 29-33)
• North Carolina State Employees Credit Union (Office Action of Apr. 9, 2025,
at 34-42)
• Cedar Point Federal Credit Union (Office Action of Apr. 9, 2025, at 44-50)
• Envista (Office Action of Apr. 9, 2025, at 51-55)
• Fifth Third Bank (Office action of Nov. 18, 2025, at 10-14; Drop-down menu
for “Bank”; “Build your mutual fund portfolio with Fifth Third”)
15 Id. at 10-11.

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• PNC (“Mutual Funds offered through PNC Wealth Management”; banking
offered under PNC Bank, N.A., Office Action of Nov. 18, 2025, at 15-19)
• Redstone Federal Credit Union offering banking and mutual funds (Office
Action of Nov. 18, 2025, at 20-22)
• Education First Federal Credit Union (Office Action of Nov. 18, 2025, at 26-
30)16
Applicant argues that credit unions and mutual funds differ in kind and in
clientele. A credit union is a member-owned nonprofit cooperative. A mutual fund is
an investment fund that pools money from many investors to purchase securities.17
As such, Applicant argues, “credit union services are sought by individuals for
personal banking and essential credit needs, whereas mutual fund services target
investors seeking to manage surplus capital through complex market instruments.”18
Applicant continues: “A consumer using community-based, daily banking services
provided under Applicant’s Mark would hardly use the sophisticated, high-end
investment tool provided under the Cited Mark. Similarly, a wealthy individual
seeking high investment return through the mutual fund services provided under the
16 Examining Attorney’s brief, 8 TTABVUE 8.
17 Aug. 2, 2024 Office Action at 15, 24, Wikipedia.
18 Applicant’s main brief, 6 TTABVUE 10.

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Cited Mark would not go to Applicant for credit union services.”19 Furthermore,
Applicant argues, some of the third-party examples cited by the Examining Attorney,
such as First National Bank, USAA and HSBC, are major banks, not credit unions.20
We agree with the Examining Attorney, however, that Applicant’s recitation of
services is not limited to credit union services. It identifies, in part, “Credit union
services; banking services; credit, financing and loan services; ….”21 See In re
Midwest Gaming & Entm’t LLC, No. 85111552, 2013 WL 1442237, *4 (TTAB 2013)
(“Under standard examination practice, a semicolon is used to separate distinct
categories of goods or services.”). Banking is thus a distinct category of services
offered by Applicant, and the Examining Attorney’s citation to third-party banks is
therefore justified.22
Applicant argues that its “explicit limitation excluding mutual-funds-related
services clarifies that Applicant’s services do not—even potentially—overlap with the
mutual fund related services covered by the Cited Mark.”23 But “the general
purchasing public … may well be unaware of the identification of [services] in either
the application or registration and the restrictions are not controlling of public
perception.” In re Aquitaine Wine USA, LLC, No. 86928469, 2018 WL 1620989, *7
19 Id. at 11.
20 Id. at 12.
21 Examining Attorney’s brief, 8 TTABVUE 9 (emphasis added).
22 We note that Merriam-Webster defines “credit union” as “: a cooperative association that
makes small loans to its members at low interest rates and offers other banking services
(such as savings and checking accounts).”
23 Applicant’s main brief, 6 TTABVUE 9.

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(TTAB 2018). As the Board has repeatedly stated, “[t]he issue, of course, is not
whether purchasers would confuse the services, but rather whether there is a
likelihood of confusion as to the source of the services.” In re Binion, No. 76590702,
2009 WL 5194992, *4 (TTAB 2009); see also Hydra Mac, Inc. v. Mack Trucks, Inc.,
507 F.2d 1399, 1400 (CCPA 1975) (“[T]he confusion found to be likely is not as to the
[services] but as to their source.”) (citation omitted). The Federal Circuit and we have
made clear:
[G]oods and/or services need not be identical or even
competitive in order to support a finding that confusion is
likely to result from the use of similar marks thereon, it
being sufficient for the purpose that the goods and/or
services are related in some manner and/or that the
circumstances surrounding their marketing are such that
they would likely be encountered by the same persons
under circumstances that could give rise to the mistaken
belief that they emanate from or are in some way
associated with the same source.
In re Mucky Duck Mustard Co., No. 73603019, 1988 WL 252484, * 2 (TTAB 1988); see
also Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1234 (Fed. Cir. 2025) (“The services
need not be identical—the evidence need only establish that the respective products
are related in some manner and/or that the circumstances surrounding their
marketing are such that they could give rise to the mistaken belief that they emanate
from the same source.”) (cleaned up; citation omitted).
Registrant’s class of mutual fund customers are the very sort who would avail
themselves of banking services. And the Examining Attorney’s third-party evidence,
showing that other banks, including credit unions, offer both services under the same
mark on their websites, tends to show that customers will perceive the services as

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related. See, e.g., Naterra v. Bensalem, 92 F.4th at 1117; Detroit Athl., 903 F.3d at
1306-07.
Applicant further argues that, “[a]mong the thirteen entities that the Examining
Attorney alleged to provide both services, six entities explicitly disclaim on their own
website that they do not provide mutual funds services and the services are provided
by third parties. This leaves the Examining Attorney only seven entities that
arguably provide both services, and these entities are almost exclusively major
banks.”24
But as the Examining Attorney establishes, these banks/credit unions provide the
service of establishing mutual funds.25 And evidence that “a single company sells the
goods and services of both parties, if presented, is relevant to a relatedness analysis.”
Hewlett-Packard, 281 F.3d at 1267; see also Detroit Athl., 903 F.3d at 1306-07
(evidence of “several” third-party retailers selling clothing bearing their own marks
in addition to clothing bearing sports team names and logos sufficient to show
consumers accustomed to seeing both offered under a single brand); In re Embiid, No.
88202890, 2021 WL 2285576, *14 (TTAB 2021) (webpages from three clothing
companies that offer shoes, shirts, or sweat shirts under the same mark “is evidence
that consumers are accustomed to seeing shoes and clothes sold under the same
mark”). So while the seven banks/credit unions that provide mutual fund services
24 Applicant’s reply brief, 9 TTABVUE 5 (“First, Liberty Savings Federal Credit Union,
Heritage Federal, Cedar Point Federal Credit Union, and Envista provide only educational
information about mutual funds, not mutual funds services.” Applicant’s main brief, 6
TTABVUE 12).
25 Examining Attorney’s brief, 8 TTABVUE 11.

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themselves are more probative of the services’ relatedness than the others, most of
the Examining Attorney’s third-party evidence nonetheless demonstrates that the
respective services would be perceived as related.
The second DuPont factor accordingly weighs in favor of a likelihood of confusion.
C. Consumer Care and Sophistication
Under the fourth DuPont factor, we also consider purchaser care: “[t]he conditions
under which … sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361.
Applicant argues that:
[B]oth the Applicant’s services and the services of the Cited
Mark involve significant financial decisions, for which
people tend to give a fair amount of consideration and
prudence. An individual does not simply rush into a credit
union to open an account and deposit their life savings
without conducting research into its reputation, terms, and
stability. Consumers likewise would not invest in mutual
funds—a highly specialized investment tool that usually
involves a significant amount of money—without
extensive, thorough research and evaluation.26
We acknowledge that the nature of the financial services tends to encourage care.
“[I]n light of the inherent nature of the goods and services involved, some degree of
purchasing care may be exercised by Applicant’s potential or actual consumers.” In
re Info. Builders Inc., No. 87753964, 2020 WL 2094122, *6 (TTAB 2020), quoted in
Heil, 2024 WL 4925901, at *36. But not sophistication. “Although the services recited
in the application also encompass sophisticated investors, Board precedent requires
26 Applicant’s main brief, 6 TTABVUE 18.

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the decision to be based on the least sophisticated potential purchasers.” Stone Lion
Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014); Lincoln
Nat’l Corp. v. Anderson, No. 91192939, 2014 WL 879506, *15 n.18 (TTAB
2014) (where relevant purchasers of banking, financial planning, and investment
services consisted of both ordinary and knowledgeable and sophisticated consumers,
“this factor certainly would not weigh significantly in applicant’s favor. At most it is
neutral in our overall likelihood of confusion determination based on all of the
relevant duPont factors”).
That the relevant class of customers may exercise care does not necessarily
impose on that class the responsibility of distinguishing between similar trademarks
for similar services, though. See, e.g., In re Rsch. and Trading Corp., 793 F.2d 1276,
1279 (Fed. Cir. 1986) (“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 [services].”). Here, even if prospective investors and depositors
are careful, they could still infer from Applicant’s and Registrant’s NEW
COVENANT-formative marks that the respective services emanate from the same
source, or from affiliated sources, as demonstrated by the Examining Attorney’s
third-party evidence. “[A]ny confusion made likely by a junior user’s mark is cause
for refusal; likelihood of confusion encompasses confusion of sponsorship, affiliation
or connection.” Hilson Rsch., Inc. v. Soc’y for Hum. Res. Mgmt., No. 91084491, 1993
WL 290669, *5 (TTAB 1993).

Serial No. 98335916
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Consequently, we have no reason to find that ordinary consumers would exercise
more than a slightly elevated degree of care, which would weigh slightly against a
likelihood of confusion.
D. Absence of Evidence of Actual Confusion
The eighth DuPont factor considers “the length of time during and conditions
under which there has been concurrent use without evidence of actual confusion.”
DuPont, 476 F.2d at 1361.
Applicant argues that “[t]he Applicant’s Mark and the Cited Mark have coexisted
for almost 20 years with no evidence of actual confusion—a fact that strongly suggests
that a future likelihood of confusion is unlikely.”27 It bases this assertion on the
declaration of its CEO, Rachel McCarthy, who avers, in pertinent part, that Applicant
is not aware of any instances of actual confusion with Registrant, nor has it received
inquiries from consumers or Registrant for nearly 20 years of coexistence, since
Applicant was chartered in 2007.28
The Examining Attorney points out that “[T]he relevant test is likelihood of
confusion, not actual confusion.”; “affidavits and declarations of an applicant’s
employees, officers, and attorneys are usually self-serving and entitled to little
weight”; and “Applicant’s assertion that no evidence of actual confusion has been
27 Applicant’s main brief, 6 TTABVUE 19.
28 McCarthy decl., Oct. 23, 2025 at 13-14.

Serial No. 98335916
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provided does not overcome the evidence of record showing that the applied-for mark
is similar to the registered mark and that the services are related.”29
The absence of any reported instances of confusion is meaningful only if
the record indicates appreciable and continuous use by applicant of its
mark for a significant period of time in the same markets as those served
by opposer under its marks.” Citigroup Inc. v. Cap. City Bank Grp., Inc.,
[No. 91177415, 2010 WL 595586, *17] (TTAB 2010), aff'd, 637 F.3d 1344
(Fed. Cir. 2011) …. In other words, for the absence of actual confusion to
be probative, there must have been a reasonable opportunity for confusion
to have occurred. Barbara’s Bakery Inc. v. Landesman, [No. 91157982,
2007 WL 196406, *5] (TTAB 2007).
Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, *30
(TTAB 2022).
Here, the record is devoid of evidence of the extent of Applicant’s and Registrant’s
transactions, with no evidence of overlap.
Accordingly, the eighth DuPont factor, gauging the length of time during and
conditions under which there has been contemporaneous use of the marks without
evidence of actual confusion, is neutral.
II. Conclusion
In sum, the relevant customers may exercise a slightly elevated degree of care,
but that is outweighed by the similarity of the marks and the relatedness of the
services. The remaining factor, absence of confusion during contemporaneous use, is
neutral.
Decision: The refusal to register Applicant’s mark is affirmed.
29 Examining Attorney’s brief, 8 TTABVUE 13 (citing In re Detroit Athl., 903 F.3d at 1309
(emphasis in italics in original) and In re David Crystal, Inc., 296 F.2d 771, 773 (CCPA 1961)).