Sol NY Corp.

This Opinion is Not a
Precedent of the TTAB
Mailed: September 16, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Sol NY Corp.
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Serial No. 98587411
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Jason H. Rosenblum of the Law Office of Jason H. Rosenblum, PLLC
for Sol NY Corp.
Kierra MacDougall, Trademark Examining Attorney, Law Office 126,
Jeffrey Look, Managing Attorney.
_____
Before Lykos, Greenbaum and Cohen,
Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
Sol NY Corp. (“Applicant”) seeks to register on the Principal Register the
standard character mark MAXXOUT for “General purpose plastic bags;
Merchandise bags” in International Class 16.1
1 Application Serial No. 98587411, filed June 6, 2024, under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), alleging March 1, 2022 as the date of first use anywhere and in
commerce.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system in Portable Document Format (“PDF”). Citations to the record
also include references to TTABVUE, the Board’s online docketing system.

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The Trademark Examining Attorney refused registration of the mark on the
ground that Applicant’s mark so resembles the registered standard character mark
MAXOUT! on the Principal Register for “Multi-layer pressure sensitive paper labels”
in International Class 16, that it is likely to cause confusion or mistake or to deceive
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d).2
After the refusal was made final, Applicant filed a notice of appeal and requested
reconsideration. The Examining Attorney denied the request and maintained the
final refusal. The appeal was resumed and is now fully briefed. For the reasons
explained below, we affirm the refusal to register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits the registration of a mark that:
[c]onsists of or comprises a mark which so resembles a
mark registered in the Patent and Trademark Office, … 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.
This opinion cites decisions of the U.S. Court of Appeals for the Federal Circuit and the U.S.
Court of Customs and Patent Appeals by the pages on which they appear in the Federal
Reporter (e.g., F.2d, F.3d, or F.4th). For Board decisions, this opinion uses citations to the
Lexis® legal database, as well as the TTABVUE proceeding number, where available. See
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 101.03(a)(2) (2026)
for acceptable citation options to cases.
2 Registration No. 5382321, registered on January 16, 2018 and is owned by Yerecic Label
Inc. (“Registrant”). Registrant’s Trademark Act Section 8 declaration of use was accepted on
January 22, 2024.
The Examining Attorney also issued an ornamentation refusal under Trademark Act
Sections 1, 2, and 45, 15 U.S.C. §§ 1051-1052, 1127, that was withdrawn upon Applicant’s
submission of an acceptable substitute specimen of use. See August 11, 2025 Final Office
Action at TSDR 1.

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15 U.S.C. § 1052(d). Our determination under Section 2(d) is based on an analysis of
all of the probative evidence of record bearing on the likelihood of confusion. In re E.
I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in
B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015); see also In re
Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023); In re Majestic Distilling
Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). We have considered each DuPont factor for
which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376,
1379 (Fed. Cir. 2019). When analyzing these factors, the overriding concerns are not
only to prevent buyer confusion as to the source of the goods, but also to protect the
registrant 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 (Fed. Cir. 1993).
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1353 (Fed.
Cir. 2011). “Each case must be decided on its own facts and the differences are often
subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973). In
any likelihood of confusion analysis, two key considerations are the first and second
DuPont factors, the similarity or dissimilarity of the marks and the goods. See In re
i.am.symbolic, LLC, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (citing Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)); see also In re Embiid,
No. 88202890, 2021 TTAB LEXIS 168, at *10 (“[T]he 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.”) (quoting Federated Foods, Inc. v. Fort

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Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976)). These factors, as well as
others, are discussed below.
A. The Marks
We commence with the first DuPont factor, the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression. See, e.g., Charger Ventures, 64 F.4th at 1380 (citing DuPont, 476 F.2d at
1361); Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396
F.3d 1369, 1371 (Fed. Cir. 2005) (same). “Similarity in any one of these elements may
be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, No.
87075988, 2018 TTAB LEXIS 170, at *13 (quoting In re Davia, No. 85497617, 2014
TTAB LEXIS 214, at *21-24), aff’d per curiam, 777 F. App’x 516 (Fed. Cir. 2019).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d 747, 751 (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 [Registrant and Applicant].” Cai v.
Diamond Hong, Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018) (quoting Coach Servs. Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012) (internal quotation
marks and citation omitted)).
We now compare Applicant’s mark MAXXOUT with the cited mark MAXOUT!,
both in standard characters. Applicant argues that while the marks are “somewhat

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similar,” they are not identical.3 Applicant contends that the extra letter “X” between
the words “max” and “out,” and exclamation point as the end of the cited mark
distinguish the marks in appearance and commercial impression.
Applicant’s arguments are unconvincing. Both marks not only sound the same but
also look virtually identical. Each mark is comprised of two words, beginning with
the word “max” or its phonetic equivalent “maxx” and ending with the word “out.”
This makes each mark the same in structure and cadence. See 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).
Consumers are unlikely to notice the exclamation point at the end of Registrant’s
mark. Even if they do and utter MAXOUT more “emphatically” as opposed to in a
“relaxed fashion,” this does little, if anything, to distinguish marks. See, e.g., St.
Helena Hosp., 774 F.3d at 750-51 (finding punctuation in registrant’s mark, TAKE
10!, did not alter the pronunciation or distinguish it in any significant way from
applicant’s mark, TAKETEN).
In terms of connotation and commercial impression, Applicant argues that
consumers will attribute different meanings to each mark, without clearly explaining
what those different meanings are. We can neither discern nor is there any
evidentiary support that there is any other significance other than conveying the
notion of maximizing performance or value. Indeed, this is consistent with
3 Applicant’s Brief, p. 7; 6 TTABVUE 8.

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Registrant’s messaging on its website to “Inspire Maximum Impulse Purchases” in
promoting its “Multi-layer pressure sensitive paper labels”:
Use all four levels of your multi-layer label to communicate your
brand’s story to shoppers! Maximize the communication of your label
by providing shoppers with valuable product information such as
recipes, preparation tips and food safety.4
A final point of similarity is that both marks are in standard characters, meaning
that they may be used in the same size, color or stylized font. In re Viterra, Inc., 671
F.3d 1358, 1364-65 (Fed. Cir. 2012) (a standard character mark may be depicted in
any font style, size, or color, and not merely “reasonable manners” of depicting such
mark).
Overall, the marks are virtually identical in appearance and identical in sound,
connotation and commercial impression. Consumers “have but dim recollections from
having previously seen or heard one or the other of the involved marks.” Neutrogena
Corp. v. Bristol-Myers Co., 410 F.2d 1391, 1393 (CCPA 1969). The first DuPont factor
weighs in favor of finding a likelihood of confusion.
B. The Goods
Next we consider the second DuPont factor, the similarity of the goods based on
the identifications in the application and cited registration. See In re Detroit Athletic
Co., 903 F.3d 1297, 1307 (Fed. Cir. 2018); Stone Lion Cap. Partners, L.P. v. Lion Cap.
LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc.,
281 F.3d 1261, 1267 (Fed. Cir. 2002). This DuPont factor “considers whether the
4 Applicant’s Response to Office Action at TSDR 48.

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consuming public may perceive the respective goods [ ] as related enough to cause
confusion about the source or origin of the goods.” Naterra Int’l, Inc. v. Bensalem, 92
F.4th 1113, 1117 (Fed. Cir. 2024) (internal citation omitted). Because the marks are
almost identical, a lesser degree of similarity between the goods is necessary to
support a finding of likelihood of confusion. Shell Oil Co., 992 F.2d at 1207.
The goods do not have to 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). The issue is not
whether the goods will be confused with each other, but rather whether consumers
would be confused as to their source. See Recot, 214 F.3d at 1329 (“[E]ven if the goods
in question are different from, and thus not related to, one another in kind, the same
goods can be related in the mind of the consuming public as to the origin of the goods.
It is this sense of relatedness that matters in the likelihood of confusion analysis.”).
Evidence of relatedness may 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 and the goods listed in
the cited registration. See, e.g., Davia, 2014 TTAB LEXIS 214, at *15-18 (finding
pepper sauce and agave “functionally related” where evidence showed both were used
for the same purpose in the same recipes and thus consumers were likely to encounter

Serial No. 98587411
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and purchase the products at the same time and in the same stores).
Applicant argues that the goods are unrelated because they serve different
functions. It characterizes its “general purpose plastic bags” and “merchandise bags”
as mass-market, utilitarian packaging products purchased by retail establishments
and ultimately used by consumers for bought items. By contrast, it describes
Registrant’s “multi-layer pressure sensitive paper labels” as highly specialized labels
with multiple layers or pages designed to provide more information than can fit on a
standard single-layer label and often used to affix detailed regulatory or instructional
information directly onto products or their packaging. As evidentiary support,
Applicant submitted website printouts from the manufacturers of multi-layer
pressure sensitive labels explaining types of label uses (for example in regulatory
compliance in the pharmaceutical and food industries).5 Based on this evidence,
Applicant contends that the Examining Attorney’s evidence is deficient because it
concerns “labels” or “pressure-sensitive labels” generally, rather than “multi-layer
pressure sensitive paper labels” specifically. It also faults the Examining Attorney’s
evidence as originating from retailers offering a wide variety of goods and failing to
show both sets of goods sold under the same trademark.
Applicant’s arguments are unpersuasive. We acknowledge that one of the items
identified in the application, “merchandise bags” is by definition restricted to bags
5 June 26, 2025 Response to Office Action, TSDR 18-49 (printouts from the third-party
websites www.qal.com; meyers.com; coastlabel.com and printout from Registrant’s website
ylfresh.com).

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used by retail establishments to carry or package goods for sale. However, the
remaining items in the application, “General purpose plastic bags” are not limited to
any particular use. Likewise, the cited registration is unrestricted as to industry or
application meaning that while the labels themselves are specific in nature, they are
not limited to any specialized or technical uses as Applicant contends. Indeed, the
record evidence shows that the uses for pressure sensitive paper labels are not limited
to highly technical applications but may also be used in marketing by retail
establishments as a cost-effective way to promote goods. By way of illustration, a
printout from Coast Label’s website explains that a
pressure sensitive label is a type of self-adhesive label that sticks to
surfaces when applied. It’s commonly used in a wide variety of
industries for product labeling, packaging and branding because it’s so
versatile. … Here are some scenarios where pressure labels work well
… Promotional materials: pressure sensitive labels can be used to
promote Retail products, providing an eye-catching way to communicate
special offers, discounts or product features. … Pressure sensitive labels
can be made from a variety of materials that each offer unique
characteristics. … Paper labels are some of the most cost-effective, and
can be used in a wide range of applications.6
Although this evidence from Coast Label concerns pressure-sensitive paper labels
generally, rather than multi-layer pressure-sensitive paper labels specifically, it
supports the conclusion that such labels may be used in connection with merchandise
6 June 26, 2025 Response to Office Action at TSDR 41-42.

Serial No. 98587411
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packaging and retail promotion.
The following evidence further shows that it is not uncommon for third-parties to
offer via their business-to-business websites “general purpose plastic bags” or
“merchandise bags” on one hand, and pressure sensitive paper labels on the other:
ProAmpac offers multi-purpose bags, pinch-bottom merchandise
bags and pressure sensitive labels;7
Riverside Paper Co. offers paper and poly merchandise bags as
well as pressure sensitive paper labels8
Pro Packaging offers custom retail bags and custom design of
pressure sensitive labels;9 and
Source One offers merchandise bags made from polyethylene and
pressure sensitive labels made from a variety of materials
including paper.10
Contrary to Applicant’s contention, this evidence is not from “big box” retail stores or
online retailers selling a wide variety of goods. In re Ox Paperboard, LLC, No.
87847482, 2020 TTAB LEXIS 266, at *19. Rather it is from specialized suppliers, with
a narrow target market, meaning that it carries a relatively higher degree of
probative weight. See id.
We acknowledge the Examining Attorney’s evidence concerns pressure sensitive
paper labels generally, and, as Applicant points out, the cited registration is limited
to “multi-layer” pressure sensitive paper levels. However, the record does not support
7 August 11, 2025 Office Action at TSDR 17-33.
8 August 11, 2025 Office Action at TSDR 51-63
9 January 30, 2026 Denial of Request for Reconsideration at TSDR 14-17.
10 January 30, 2026 Denial of Request for Reconsideration at TSDR 19-27.

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a finding that “multi-layer” is anything other than a subset of “pressure sensitive
paper labels.” As a result, there is no basis for us to discount the Examining
Attorney’s evidence of relatedness simply because the evidence fails to specify “multi-
layer.” The second DuPont factor therefore weighs in favor of finding a likelihood of
confusion.
C. The Established, Likely-to-Continue Channels of Trade
This brings us to the third DuPont factor, “the similarity or dissimilarity of
established, likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. This
DuPont factor addresses the question of whether the goods move from producer to
consumer in the same commercial pathways (e.g., brick-and-mortar retail stores,
online specialty retailers, or wholesale distributorships). As with the second DuPont
factor, we are guided by the language in the identification of the application and cited
registration. See Detroit Athletic Co., 903 F.3d at 1307; Stone Lion, 746 F.3d at 1323;
Hewlett-Packard, 281 F.3d at 1267.
Applicant disputes the Examining Attorney’s finding that the goods travel in
overlapping trade channels to the same classes of consumers. Applicant contends that
its “general purpose plastic bags” and “merchandise bags” are ordinarily sold through
retail channels, including convenience stores, smoke shops, small retail outlets, and
general-merchandise suppliers, and that the classes of consumers include retailers
and wholesalers, with the general public serving as the ultimate end users. Applicant
contrasts these goods with the cited registration’s “multi-layer pressure-sensitive
paper labels,” which Applicant characterizes as specialized industrial or commercial

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products rather than consumer goods. Applicant asserts that such labels are
purchased by manufacturers and businesses in regulated industries such as
pharmaceutical, chemical, cosmetics, personal-care, and agrochemical industries that
require expanded-content labeling for regulatory compliance or detailed product
information. Applicant further contends that these labels are obtained from specialty
label manufacturers or printing companies, often through technical sales processes
involving customization and regulatory-compliance support.
Applicant’s arguments are unavailing. Neither the registration nor the
application contains any limitations on the channels of trade, or classes of purchasers.
As such, Applicant’s and Registrant’s goods presumptively move in all normal trade
channels and to all types of consumers that purchase such goods. See Levi Strauss &
Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 1373 (Fed. Cir. 2013). The
same third-party website evidence discussed above under the second DuPont factor
also demonstrates that the normal trade channels overlap to include specialty
business-to-business ecommerce suppliers and that the classes of consumers include
retail establishments. The third DuPont factor also favors a likelihood of confusion.
D. Purchasing Conditions
Finally, we evaluate the fourth DuPont factor, “[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. A heightened degree of care when making a purchasing
decision may tend to minimize likelihood of confusion. See, e.g., In re N.A.D., Inc., 754
F.2d 996, 999-1000 (Fed. Cir. 1985) (because only sophisticated purchasers exercising

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great care would purchase the relevant goods, there would be no likelihood of
confusion merely because of the similarity between the marks NARCO and
NARKOMED). Conversely, impulse purchases of inexpensive goods may tend to have
the opposite effect. Palm Bay Imps., 396 F.3d at 1376.
Applicant argues that the specialized nature of Registrant’s goods means that they
are almost exclusively purchased by sophisticated professionals such as packaging
engineers, technical procurement managers, or manufacturing line operators whose
purchasing decisions involve technical calibration, machinery integration, and supply
chain logistics while the consumers of Applicant’s goods are retail establishment
owners whose purchasing decisions are non-technical in nature. As evidentiary
support, Applicant submitted website evidence describing Registrant’s goods11 as well
a Declaration of Anupam Yadav, CEO of Applicant, attesting to Applicant’s specific
sales channels and customers.12
Applicant’s evidence does not obviate the fact that the cited registration is
unrestricted as to type of purchaser and price. See Cunningham, 222 F.3d at 948
(affirming Board finding that where the identification is unrestricted, “we must deem
the goods to travel in all appropriate trade channels to all potential purchasers of
such goods”). We must therefore assume that Registrant’s goods are available to
ordinary consumers of such products at all price points. This would include not only
expert professionals in the food, health, and pharmaceutical industries, but also small
11 November 11, 2025 Request for Reconsideration at TSDR 13-92.
12 November 11, 2025 Request for Reconsideration at TSDR 94-95.

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business owners of retail establishments. While some of these consumers might be
highly sophisticated and knowledgeable, others may not. Basing our analysis “on the
least sophisticated potential purchasers,” Stone Lion, 746 F.3d at 1325, this DuPont
factor is neutral.
II. Conclusion – Weighing and Balancing the DuPont factors13
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, 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.”).
We have carefully considered all of the evidence made of record, as well as all
arguments. The first DuPont factor weighs heavily in favor of a likelihood of confusion
because overall, the marks are almost identical in sight and are identical in sound,
meaning and commercial impression. The second and third factors also weigh in favor
13 During prosecution, Applicant presented arguments implicating the seventh and eighth
DuPont factors, the “nature and extent of any actual confusion,” and 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. Although the Examining Attorney briefly addressed
these factors on appeal, Applicant did not. Both factors are neutral in our analysis because
they require evidence of actual market conditions, and the record is devoid of such evidence.
In re Guild Mortg. Co., No. 86709944, 2020 TTAB LEXIS 17, at *19; see also Barbara’s Bakery
Inc. v. Landesman, No. 76308993, 2007 TTAB LEXIS 9, at *14 (for the absence of actual
confusion to be probative, there must have been a “significant opportunity” for confusion to
have occurred).

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of a likelihood of confusion because the goods are related items marketed in
overlapping trade channels to the same classes of consumers. The fourth DuPont
factor of purchasing conditions is neutral. With no factors weighing against a
likelihood of confusion, we conclude that confusion is likely.
Decision: The Section 2(d) refusal is affirmed.