Agricultural Utilization Research Institute v. Ejec Ventures, LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: October 8, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Agricultural Utilization Research Institute
v.
Ejec Ventures, LLC
_____
Opposition No. 91292154
_____
Alexander J. Ferrell of Best & Flanagan, LLP for Agricultural Utilization Research
Institute.
Michael R. Rizzo and Sarah Leighton of Saunders & Silverstein LLP for Ejec
Ventures, LLC.
_____
Before Lykos, Larkin, and Lebow,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
Ejec Ventures, LLC (“Applicant”) seeks registration on the Principal Register of
the standard-character mark AURI for “Nutritional supplements in the form of
gummies” in International Class 5.1
1 Application Serial No. 97644906 was filed on October 24, 2022 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claimed first use of the mark
anywhere and first use of the mark in commerce at least as early as April 26, 2022.

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Agricultural Utilization Research Institute (“Opposer”) opposes registration of
Applicant’s AURI mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),
on the sole ground of likelihood of confusion with its two registered marks shown
below:
registered on the Principal Register for
Research and development in the field of agriculturally-
based innovations; Scientific and technological services,
namely, scientific and technical assistance in the nature of
integrated scientific research, product development and
product testing for agricultural coproducts, biobased
products, renewable energy products and food; Scientific
research consulting in the field of biobased products,
renewable energy, coproduct utilization and food;
Technology consultation and research in the field of
biobased products, renewable energy, coproduct utilization
and food in International Class 42,2
and
2 Registration No. 4283975 (the “’975 Registration”) issued on January 29, 2013 and has been
renewed. Opposer describes the mark as follows: “The mark consists of curved ribbons of gold,
white, green and blue within a rectangular field with curved lower left and upper right
corners above the acronym ‘auri’ above the stacked words ‘Agricultural Utilization Research
Institute’.” The colors white, brown, green, blue, and gold are claimed as a feature of the
mark. The disclaimer statement in the ’975 Registration states that Opposer has disclaimed
the exclusive right to use “AGRICULTURAL UTILIZATION OR RESEARCH INSTITUTE”
apart from the mark as shown. 12 TTABVUE 6 (emphasis added).

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registered on the Principal Register for
Arranging and conducting of educational seminars, online
and in-person educational forums, panel discussions,
professional network groups, conferences, webinars,
classes, and programs with thought leaders in the field of
agriculturally-based innovations and utilization of
agricultural research in International Class 41.3
Opposer also asserts prior common-law rights in the mark AURI for providing
technical assistance and applied research services in agriculture, and product
development assistance to create new products.
The case is fully briefed.4 We dismiss the opposition because Opposer did not prove
its likelihood of confusion claim by a preponderance of the evidence.
3 Registration No. 7011051 (the “’051 Registration”) issued on March 28, 2023. Opposer
describes the mark as follows: “The mark consists of curved ribbons of gold, white, green and
blue within a rectangular field with curved lower left and upper right corners above the word
‘auri’ in blue followed by ‘Connects:’ in gold over an arrangement of gold lines emanating from
a center point and connecting with several gold circles.” The colors white, green, blue, and
gold are claimed as a feature of the mark.
4 Citations in this opinion to the briefs and record refer to TTABVUE, the Board’s online
docketing system. The number preceding TTABVUE corresponds to the docket entry number,
and any numbers following TTABVUE refer to the page(s) of the docket entry where the cited
materials appear.
Opposer’s redacted main brief appears at 39 TTABVUE, its unredacted confidential main
brief appears at 40 TTABVUE, its redacted reply brief appears at 44 TTABVUE, and its
unredacted confidential reply brief appears at 43 TTABVUE. Applicant’s redacted brief
appears at 41 TTABVUE and its unredacted confidential brief appears at 42 TTABVUE.
Unless otherwise indicated, we will cite the parties’ redacted publicly accessible briefs.

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I. Record
The record includes the pleadings,5 in which Applicant denied the salient
allegations in Opposer’s Notice of Opposition, the file history of the opposed
application, by operation of Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1),6 and
the following materials submitted by the parties during their respective trial and
rebuttal periods:7
Opposer
• Declaration of Shannon M. Schlecht, Opposer’s Executive Director, and
Exhibits PX1-PX11 thereto, 7 TTABVUE 1-38;
• Declaration of Jennifer Voegele, Opposer’s Director of Marketing
Communications, and Exhibits PX12-PX55 thereto, 9 TTABVUE 1-113;8
• Notice of Reliance on Applicant’s discovery responses, and Exhibits PX56-
PX59 thereto, 11 TTABVUE 1-55;9
5 The operative pleadings are Opposer’s Notice of Opposition, 1 TTABVUE, and Applicant’s
Answer to Notice of Opposition. 4 TTABVUE.
6 Citations in this opinion to the application record are to pages in the downloadable .pdf
version of the Trademark Status & Document Retrieval (“TSDR”) database of the United
States Patent and Trademark Office (“USPTO”).
7 As discussed below, some of the materials in the record are the subject of evidentiary
objections by Applicant.
8 Certain exhibits to the Voegele Declaration were redacted as confidential under the Board’s
Standard Protective Order. The unredacted version of the Voegele Declaration and these
confidential exhibits were filed under seal at 8 TTABVUE.
9 Certain portions of Applicant’s discovery responses were redacted as confidential under the
Board’s Standard Protective Order. The unredacted versions of those responses were filed
under seal at 10 TTABVUE.
Unlike Applicant, Opposer did not designate its Notices of Reliance by number. Although this
is not required, using numbers enables more convenient citation of this form of evidence by
the Board.

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• Notice of Reliance on Official Records, and Exhibits PX60-PX61 thereto, 12
TTABVUE 1-13;10
• Notice of Reliance on Applicant’s Produced Documents, and Exhibits PX62-
PX65 thereto, 14 TTABVUE 1-24;
• Notice of Reliance on Internet Documents, and Exhibits PX66-PX71
thereto, 13 TTABVUE 1-27;
• Notice of Reliance on Official Records, and Exhibits PX72-PX82 thereto, 15
TTABVUE 1-66;
• Notice of Filing of Oral Cross-Examination of Applicant’s witness Evan
Johansen and Exhibits 1-6 thereto, 34 TTABVUE 1-90; 35 TTABVUE 1-
90;11 and
• Rebuttal Trial Declaration of Ms. Voegele, and Exhibits PX44.1-PX55.1
thereto, filed during Opposer’s rebuttal period, 36-37 TTABVUE 1-14.
10 The “Official Records” here are USPTO electronic records regarding Opposer’s pleaded
registrations.
11 Opposer filed an entirely redacted version of the Johansen cross-examination transcript at
35 TTABVUE, and an unredacted version of the transcript under seal at 34 TTABVUE,
because “Applicant’s counsel asserts that the entire transcript is confidential.” Id. at 2.
“Confidentiality designations do not provide absolute immunity from the public disclosure of
materials so designated.” El Roblar Inv. Prop. LLC v. Roe, No. 91272200, 2025 WL 2718983,
at *2 n.13 (TTAB 2025) (quoting Kohler Co. v. Honda Gikken Kogyo K.K., No. 91200146, 2017
WL 6547628, at *5 (TTAB 2017) (citing Noble House Home Furnishings, LLC v. Floorco
Enters., LLC, No. 92057394, 2016 WL 3357265, at *4 n.21 (TTAB 2016) (“The Board needs to
be able to discuss the evidence of record, unless there is an overriding need for confidentiality,
so that the parties and a reviewing court will know the basis of the Board's decisions.”)). See
also Trademark Rule 2.116(g), 37 C.F.R. § 2.116(g) (“The Board may treat as not confidential
that material which cannot reasonably be considered confidential, notwithstanding a
designation as such by a party.”)). We have reviewed Mr. Johansen’s cross-examination
testimony and find very little that is truly confidential. Consistent with our duty to discuss
the record evidence to explain our decision, we will discuss Mr. Johansen’s cross-examination
testimony, and other evidence in the record designated as confidential, to the extent that it
is relevant, unless it involves information that is truly sensitive business information.
Opposer also filed the Johansen cross-examination transcript in a condensed fashion, with
four pages of testimony per sheet, 34-35 TTABVUE, in violation of Trademark Rule
2.123(g)(1), 37 C.F.R. § 2.123(g)(1), which states that “[t]he deposition transcript must be
submitted in full-sized format (one page per sheet), not condensed (multiple pages per sheet).”
We have considered the transcript, but note that its review was made more difficult because
of its condensed format, and admonish Opposer’s counsel to comply with the rule in any
future proceedings.

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Applicant
• Declaration of Mr. Johansen, Applicant’s Chief Executive Officer, and
Exhibits EJV12-EJV22 thereto, 28 TTABVUE 1-136;12
• Transcript of the cross-examination deposition of Ms. Voegele, and Exhibits
1-2,4-6, 5, 8, 40, and 44 thereto, 21 TTABVUE 1-143;13
• Transcript of the cross-examination deposition of Mr. Schlecht, and
Exhibits 1-3 thereto, 23 TTABVUE 2-86;14
• First Notice of Reliance on Opposer’s discovery responses and produced
documents, and Exhibits EJV1-EJV3 thereto, 25 TTABVUE 1-50; and
• Second Notice of Reliance on what Applicant describes as “publicly
available documents” and “Internet searches,” and Exhibits EJV4-EJV11
thereto, 26 TTABVUE 3-38.
II. Evidentiary Issues
In an appendix to its brief, Applicant objects to multiple exhibits to Opposer’s
declarations on the basis of lack of authentication, hearsay, relevance, the Best
Evidence Rule, Opposer’s failure to disclose certain materials during discovery and
during a cross-examination deposition, and Opposer’s use of improper rebuttal
12 Certain portions of the Johansen Declaration and exhibits were designated as confidential
under the Board’s Standard Protective Order. An unredacted version of the Johansen
Declaration was filed under seal at 27 TTABVUE and 29 TTABVUE. On March 4, 2026, the
day on which Opposer’s main brief was filed, Applicant filed a document captioned
“RESUBMISSION OF PUBLIC TRIAL DECLARATION TO SUBSTITUTE AND
SUPERSEDE DOCKET ENTRY 28 TTABVUE,” 38 TTABVUE 2, with “additional redactions
to substitute and supersede the public trial declaration at 28 TTABVUE,” with the consent
of Opposer. 38 TTABVUE 2. Except where otherwise indicated, we will cite the Johansen
Declaration that appears at 38 TTABVUE.
13 The publicly accessible version of the transcript redacts confidential Exhibits 5, 8, 40, and
44, which are filed under seal at 22 TTABVUE.
14 The publicly accessible version of the transcript redacts confidential Exhibit 3, which is
filed under seal at 24 TTABVUE.

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evidence. 41 TTABVUE 44-55. Opposer responds to these objections in an appendix
to its reply brief. 44 TTABVUE 16-24.
A. Relevance
We begin with Applicant’s relevance objections, which are asserted against
Exhibits PX18, PX22, PX24, and PX26 to the Voegele Declaration. 41 TTABVUE 46-
47. Each of these four exhibits is an email received by Opposer that Ms. Voegele
testified “appears to be intended for [Applicant].” Voegele Decl. ¶¶ 13, 17, 19, 21 (9
TTABVUE 8-9).
Applicant argues that Exhibit PX18 is identical to Exhibit PX52;15 that Exhibit
PX22 is identical to Exhibit PX43;16 that Exhibit PX24 is identical in substance to
Exhibit PX25, which was sent on a different day; and that Exhibit PX26 is identical
to Exhibit PX53.17 41 TTABVUE 46-47. Opposer responds that these are “[r]elevant
communications intended for [Applicant].” 44 TTABVUE 18.
Applicant is correct that the referenced pairs of exhibits are identical in content.
That does not make them irrelevant,18 but they are duplicative and unnecessary. Cf.
15 The contents of Exhibits PX18 and PX52 are redacted in the publicly accessible Voegele
Declaration. 9 TTABVUE 39, 107. The contents of both Exhibits appear in the Voegele
Declaration filed under seal. 8 TTABVUE 39, 107.
16 The contents of Exhibits PX22 and PX43 are redacted in the publicly accessible Voegele
Declaration. 9 TTABVUE 47, 89. The contents of both Exhibits appear in the Voegele
Declaration filed under seal. 8 TTABVUE 47, 89.
17 The contents of Exhibits PX26 and PX53 are redacted in the publicly accessible Voegele
Declaration. 9 TTABVUE 55, 113. The contents of both Exhibits appear in the Voegele
Declaration filed under seal. 8 TTABVUE 55, 109.
18 “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in determining the action.”
Fed. R. Evid. 401.

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Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, at *7
(TTAB 2022) (criticizing the parties for “fil[ing] duplicative evidence by different
methods of introduction”) (citation omitted). We will review the emails in Exhibits
PX18, PX22, and PX26 for whatever probative value they may have, and will
disregard their counterparts in Exhibits PX52, PX43, and PX53. The fact that the
email in Exhibit PX24 was sent to Opposer on two different days may have
independent probative value, and we will consider both Exhibit PX24 and Exhibit PX
25 for whatever probative value they may have. We overrule Applicant’s relevance
objection.
B. Hearsay
Applicant’s hearsay objections are asserted against Exhibits PX16 and PX17 to
the Voegele Declaration, which are internal emails from one of Opposer’s employees,
Amy Lund, to another employee, Lea Reitmeier. Voegele Decl. Exs. PX16-PX17 (9
TTABVUE 35, 37). Exhibit PX16 is dated January 11, 2024, and bears the “Subject”
line “I just got another phone call from a lady looking for gummies,” but contains no
text. 9 TTABVUE 35. Exhibit PX17 is dated January 4, 2024 and bears the “Subject”
line “Phone call about auri gummies” and contains text that is redacted in the publicly
accessible Voegele Declaration. Id. at 37.19
19 The body of Exhibit PX17 appears in the Voegele Declaration filed under seal. 8 TTABVUE
37. It is not clear why Opposer redacted the entire body of the email rather than just the
caller’s name and telephone number. Ms. Lund’s recitation of the substance of the calls, and
her response to the caller, cannot be considered confidential, and we will discuss them below.

Opposition No. 91292154
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Applicant objects to these emails under Rule 802 of the Federal Rules of Evidence,
captioned “The Rule Against Hearsay,” on the ground that they are “inadmissible to
support [a] claim of consumer confusion between Opposer and Applicant.” 41
TTABVUE 45. Opposer responds (1) that these objections are “an alleged procedural
defect that is waived because it was not raised prior to the trial brief,” (2) that the
emails are “[n]ot hearsay because [they are] not offered to prove the truth of the
matter asserted in [the] statement[s],” and (3) that “even if the Board were to consider
them hearsay, the statements are admissible as an exception as evidence of the
declarant’s state of mind.” 43 TTABVUE 17-18 (citations omitted).
We begin by rejecting Opposer’s claim that Applicant waived its hearsay
objections because Applicant asserted them for the first time in its brief. “As a general
rule, [procedural] objections that are curable must be seasonably raised, or they will
be deemed waived,” Flame & Wax, Inc. v. Laguna Candles, LLC, No. 92072343, 2022
WL 3083070, at *5 (TTAB 2022) (quotation and quotation marks omitted), but “an
objection to evidence on the basis that it constitutes hearsay is a substantive objection
. . . .” RLP Ventures, LLC v. Panini Am., Inc., No. 91268816, 2023 WL 6442609, at *8
n.24 (TTAB 2023) (citation omitted). See also Int’l Dairy Foods Ass’n v. Interprofession
Du Gruyère, No. 91232427, 2020 WL 4559436, at *4 (TTAB 2020) (hearsay objections
raised for the first time in a party’s brief are timely), aff’d, 575 F. Supp. 3d 627 (E.D.
Va. 2021), aff’d, 61 F.4th 407 (4th Cir. 2023). We will consider the merits of
Applicant’s objections.

Opposition No. 91292154
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Hearsay is “a statement that: (1) the declarant20 does not make while testifying at
the current trial or hearing; and (2) a party offers in evidence to prove the truth of
the matter asserted in the statement.” Fed. R. Evid. 801(c)(1)-(2). The two challenged
emails involve “multiple levels of hearsay statements made by several out-of-court
declarants,” Philanthropist.com, Inc. v. Gen. Conf. Corp. of Seventh-Day Adventists,
No. 92065178, 2021 WL 2472776, at *14 (TTAB 2021), namely, the two callers who
contacted Ms. Lund, and Ms. Lund herself, who related the callers’ statements to Ms.
Reitmeier. Opposer offers these emails to show that Ms. Lund “got another phone call
from a lady looking for gummies,” 9 TTABVUE 35, and that she received two
messages from a particular caller about ordering gummies and returned the calls and
told the caller that the caller had the wrong number. 8 TTABVUE 37. Each level of
hearsay must be independently admissible. See Fed. R. Evid. 805 (“Hearsay within
hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.”).
“[S]tatements of customer confusion in the trademark context fall under [the] Fed.
R. Evid. 803(3) ‘state of mind’ exception to the hearsay rule.” Dan Foam Aps. v. Sleep
Innovations, Inc., No. 92054201, 2013 WL 3168101, at *4 (TTAB 2013) (citations
omitted). The callers’ out-of-court statements to Ms. Lund might be admissible under
this exception, or because they are not offered to prove the truth of what the caller
20 To be clear, the word “declarant” in Rule 801(c)(1) does not refer to a witness, such as Ms.
Voegele, who testifies in a Board proceeding through a declaration rather than through oral
examination in a testimony deposition, but instead to any person who makes a statement
while not testifying in a proceeding.

Opposition No. 91292154
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said, but merely that the caller called Opposer, who does not sell gummies, rather
than Applicant, who does. But Ms. Lund did not testify at trial, and her out-of-court
statements to Ms. Reitmeier in the emails, which are offered to prove that the calls
occurred and to relate their substance, are hearsay that is not subject to any exception
to the rule against hearsay. We sustain Applicant’s objections to Exhibits PX16 and
PX17 to the Voegele Declaration and have given them no consideration in our
decision.
C. Lack of Authentication
Applicant objects to Exhibits PX5, PX6, PX7, and PX8 to the Schlecht Declaration,
which are screenshots of pages from Opposer’s pages on Facebook (now Meta),
LinkedIn, X (formerly Twitter), and YouTube, Schlecht Decl. ¶ 20; Exs. PX5, PX6,
PX7, and PX8 (7 TTABVUE 5, 24-31), under Rule 901 of the Federal Rules of
Evidence, on the ground that “[n]either the screenshot nor declaration list the URL
or access date.” 41 TTABVUE 44-45. Opposer responds that “[t]his is an alleged
procedural defect that is waived because it was not raised prior to the trial brief.” 43
TTABVUE 16-17.
We agree with Opposer. Mr. Schlecht’s failure to identify the URL and access date
of Opposer’s social media pages is a “procedural shortcoming [that] has been waived”
by Applicant’s failure to promptly object to the Schlecht Declaration when it was filed.
Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 WL
16646840, at *10 n.26 (TTAB 2022) (citations omitted). We overrule Applicant’s

Opposition No. 91292154
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authentication objections and will consider the challenged exhibits for whatever
probative value they may have.
D. Best Evidence Rule
Applicant objects to Exhibits PX44, PX45, PX46, PX47, PX48, PX49, PX50, PX54,
and PX55 to the Voegele Declaration, Voegele Decl. ¶¶ 39-45, 49-50 (8 TTABVUE 11-
13, 90-102, 110-13), which are transcripts of voicemail messages left by outside
callers,21 on the ground that they violate the so-called “Best Evidence Rule” in Rule
1002 of the Federal Rules of Evidence, formally captioned “Requirement of the
Original.” Fed. R. Evid. 1002. Applicant “objects to the generated transcript of a
purported voicemail message” and argues that “[t]o properly introduce the voicemail
message, which exists, Opposer should submit the original recording during its
primary trial period.” 41 TTABVUE 47-50.
Opposer responds that “[t]his is an alleged procedural defect that is waived
because it was not raised prior to the trial brief,” and that the “[r]ecordings [were]
provided during [the] trial disclosure period after counsel questioned [the] content of
transcriptions in [the] Voegele cross-examination. e.g. (21 TTABVUE 37).” 44
TTABVUE 18-21.
“The ‘best evidence rule’ is a common law proposition that has been codified
in Rule 1002 of the Federal Rules of Evidence, which states: ‘To prove the content of
21 In her Declaration, Ms. Voegele misdescribed Exhibits PX44 and PX46 as emails rather
than transcriptions of voicemail messages. Voegele Decl. ¶¶ 39, 41 (9 TTABVUE 11-12). The
contents of the transcriptions are redacted in the publicly accessible Voegele Declaration, but
appear in the version filed under seal at 8 TTABVUE. Beyond caller identification and
contact information, we do not consider the contents of the transcriptions to be confidential.

Opposition No. 91292154
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a writing, recording, or photograph, the original writing, recording, or photograph is
required, except as otherwise provided in these rules or by Act of Congress.’” Mag
Instrument, Inc. v. Brinkmann Corp., No. 91163534, 2010 WL 3253200, at *3 (TTAB
2010). Rule 1001(b) states that a “recording” “consists of letters, words, numbers, or
their equivalent recorded in any manner,” Fed. R. Evid. 1001(b), and Rule 1001(d)
states that “[a]n ‘original’’ of a . . . recording means the . . . recording itself or any
counterpart intended to have the same effect by the person who executed or issued
it.” Fed. R. Evid. 1001(d).22
With the two exceptions noted above, Ms. Voegele identified each of the challenged
exhibits to her Declaration as “a transcription for a voicemail.” Voegele Decl. ¶¶ 39-
45, 49-50 (8 TTABVUE 11-13). She testified about the actual recordings of the
voicemails on cross-examination, describing them as the product of artificial
intelligence (“AI”) and testifying that she did not believe that they had been deleted.
Voegele Cross Tr. 39:21-40:1-5; 41:7-16, 22-42:8 (21 TTABVUE 41-44).
“Procedural objections to testimony and evidence must be raised promptly to allow
an opportunity to cure.” RLP Ventures, 2023 WL 6442609, at *3 (citation omitted).
“[O]bjections to . . . testimony, on substantive grounds, such as that the proffered
evidence constitutes hearsay or improper rebuttal, or is incompetent, irrelevant, or
immaterial, generally are not waived for failure to raise them promptly, unless the
22 We find that in the case of the objected-to voicemail messages, an AI transcription is not a
“counterpart intended to have the same effect by the person who executed or issued it” within
the meaning of Rule 1001(d) because AI is not a “person.”

Opposition No. 91292154
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ground for objection is one which could have been cured if raised promptly.” Flame &
Wax, 2022 WL 3083070, at *5 (internal quotation and quotation marks omitted)).
By definition, a voicemail message is a “recording” within the meaning of Rule
1001(b) because it records the caller’s message, and it is self-evident that at the time
that the message was recorded and then transcribed, an actual recording existed. Ms.
Voegele recalled listening to the original recording of at least one of the transcribed
messages, Voegele Cross Tr. 39:25-40:5 (21 TTABVUE 41-42), and confirmed that the
recordings were available. Voegele Cross Tr. 39:21-40:1-5; 41:7-16, 22-42:8 (21
TTABVUE 41-44). We need not decide whether a Best Evidence Rule objection is
procedural or substantive in every case. On these facts, the use of the transcriptions
instead of the actual recordings could have been cured if the Best Evidence Rule
objection had been raised promptly. The exhibits were identified as transcriptions of
voicemail messages, which are, as noted above, “recordings,” so Applicant knew or
should have known that recordings existed and could have demanded them during
Opposer’s trial period. Applicant waived the objection by waiting until the filing of its
brief to assert it.
We overrule Applicant’s Best Evidence Rule objections to Exhibits PX44, PX45,
PX46, PX47, PX48, PX49, PX50, PX54, and PX55 to the Voegele Declaration, and will
consider them for whatever probative value they may have, taking into account that
Ms. Voegele admitted on cross-examination that AI made errors in at least two of the
transcriptions, Voegele Cross. Tr. 35:13-36:1, 14-37:3; 39:6-20 (21 TTABVUE 37-39,
41), and that such transcription errors are “very common when AI is hearing things

Opposition No. 91292154
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and trying to translate them into text because they’re not human beings. They’re just
. . . spelling it out the way it sounds to them and what they think it could be.” Voegele
Cross. Tr. 36:24-37:3 (21 TTABVUE 38-39).
E. Failure to Disclose/Improper Rebuttal Testimony
Applicant objects to Exhibits PX44.1, PX45.1, PX46.1, PX47.1, PX48.1, PX49.1,
PX50.1, PX54.1, and PX55.1 to the Voegele Rebuttal Declaration, 37 TTABVUE 3-4,
which are the actual audio recordings of the calls, on the grounds that Opposer failed
to disclose the existence of these recordings during discovery, and that it is improper
to submit the actual recordings during Opposer’s rebuttal period when they were
available during Opposer’s case-in-chief and should have been submitted then. 41
TTABVUE 50-54. We need not decide this objection because we have found above
that Applicant waived its Best Evidence Rule objection to the transcriptions of the
recordings, and we thus need not rely on the recordings themselves in our decision.
Flame & Wax, 2022 WL 3083070, at *7.
F. Johansen Cross-Examination Exhibit 6 and Related Testimony
Finally, Applicant objects to Exhibit 6 to the Johansen cross-examination
deposition and “all accompanying testimony” on the ground that Opposer failed to
disclose the existence of this email exchange. 41 TTABVUE 55.23 Applicant states
23 Exhibit 6 to the Johansen cross-examination deposition transcript is an email chain that
begins with an October 5, 2025 email from a consumer to Applicant requesting that the
consumer’s order be cancelled as soon as possible and that a refund be issued. The next email
is a response from “Stephanie” at Applicant confirming the cancellation and discussing a
possible refund for unopened packages. The consumer next responded to “Stephanie” at
Applicant’s customer service email address and copied Ms. Voegele and Ashley Harguth at
Opposer’s email address at auri.org regarding the cancellation. Ms. Voegele responded to the
consumer that “Ashley and I are with the Agricultural Utilization Research Institute, a

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that such “an objection was made on the record” of Mr. Johansen’s cross-examination.
Id.
Opposer responds in its reply brief that “[t]his is an alleged procedural defect that
is waived because it was not raised prior to the trial brief,” and that “[t]his document
was in [Applicant’s] possession already, and [was] provided during the trial period.”
44 TTABVUE 24.
Opposer does not specify exactly when the document was “provided during the
trial period,” but when Opposer’s counsel marked the exhibit at Mr. Johansen’s cross-
examination deposition on November 20, 2025, Applicant’s counsel stated that
“[w]e’re going to object to this exhibit. This is the first time -- last night was the first
time that we’ve ever been shown this document.” Johansen Cross Tr. 68:21-69:1 (34
TTABVUE 22).24 Opposer’s counsel did not dispute that statement, and Mr. Johansen
testified that he had not seen the email chain before and that to the best of his
knowledge, a search of Applicant’s emails had not uncovered it. Johansen Cross Tr.
74:17-21 (34 TTABVUE 24).
We find that Exhibit 6 was not disclosed to Applicant prior to the night before Mr.
Johansen’s cross-examination, and we sustain Applicant’s objection to it and have
not considered it or Mr. Johansen’s related testimony as substantive evidence.
nonprofit supporting the rural economy in Minnesota. We have no relationship to AURI
Nutrition. Please take us off this exchange and all other communications regarding this
matter.” The consumer responded “Will do. Apologize was trying anyone who could help.
Have a great day.” 34 TTABVUE 86-90.
24 Following that objection, Applicant’s counsel did not instruct Mr. Johansen not to respond
to Opposer’s counsel’s questioning about Exhibit 6.

Opposition No. 91292154
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III. The Parties and Their Marks
Opposer is a nonprofit corporation funded in part by the State of Minnesota.
Schlecht Decl. ¶ 12 (7 TTABVUE 3-4). Opposer helps develop new uses for
agricultural products through science and technology in partnership with farmers,
businesses and entrepreneurs. Schlecht Decl. ¶ 10 (7 TTABVUE 3). Opposer is also a
thought leader in the agricultural space, and hosts events, webinars, and other
seminars for the industry, including the food industry, whose goal is to focus on
Opposer’s core focus areas of food, renewable energy, and biobased products
innovation. Schlecht Decl. ¶ 11 (7 TTABVUE 3).
Opposer owns the two registrations shown and discussed above, and claims use of
the AURI mark at common law since at least as early as January 1992. Schlecht Decl.
¶ 16 (7 TTABVUE 4). The mark “AURI” abbreviates “Agricultural Utilization
Research Institute.” Schlecht Decl. ¶ 16 (7 TTABVUE 4). It is often used in lowercase
font. Schlecht Decl. ¶ 17 (7 TTABVUE 4).
Applicant was founded in August 2021, Johansen Decl. ¶ 1 (38 TTABVUE 5), and
does business as “Auri Nutrition.” Johansen Decl. ¶ 3 (38 TTABVUE 5-6). Applicant
specializes in science-backed functional mushroom supplements formulated to
support energy, focus, mood, and overall well-being. Johansen Decl. ¶ 4 (38
TTABVUE 6). Mr. Johansen testified that “Auri Nutrition started using the AURI
trademark in April 2022 and first used the AURI trademark in U.S. commerce in May

Opposition No. 91292154
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2022,” and that the “trademark has been in continuous use with our mushroom
supplement products since that date.” Johansen Decl. ¶ 7 (38 TTABVUE 7).25
IV. Opposer’s Statutory Entitlement to a Cause of Action
“Entitlement to a statutory cause of action is an element of the plaintiff’s case in
every inter partes proceeding.” Cielo e Terra, S.p.A. v. Hoteles y Viñedos del Valle de
Guadalupe S.A. de C.V., No. 91287216, 2026 WL 2624328, at *2 (TTAB 2026)
(citations omitted). “Section 13 of the Trademark Act, 15 U.S.C. § 1063, provides that
[a]ny person who believes that he would be damaged by the registration of a mark . .
. may . . . file an opposition with the USPTO . . . .” Id. (internal quotation and
quotation marks omitted).
“A plaintiff may oppose registration of a mark when (1) [its] interests are within
the zone of interests protected by the statute [(i.e., it has a real interest in the outcome
of the proceeding)] and (2) [it] has a reasonable belief in damage that would be
proximately caused by registration of the mark in violation of the opposition statute.”
Id. at *3 (internal quotation and quotation marks omitted).
Applicant admitted in discovery that it does not challenge Opposer’s entitlement
to a statutory cause of action, Applicant’s Amended Resp. to Req. for Adm. Nos. 31-
32 (11 TTABVUE 35-36), and did not address entitlement in its brief, but a plaintiff’s
entitlement is a necessary element in every case even if the defendant does not
contest it. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1302-07 (Fed. Cir. 2020).
25 As noted above, in the opposed application, Applicant claimed first use of the mark
anywhere and first use of the mark in commerce at least as early as April 26, 2022.

Opposition No. 91292154
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Opposer argues that it “is entitled to oppose registration of [Applicant’s] Auri Mark
because of [Opposer’s] incontestable registration for the AURI Mark and its
continuous use of those marks for more than 34 years.” 39 TTABVUE 17.
Opposer properly made of record its pleaded registrations of its AURI-formative
marks showing current title and status, 12 TTABVUE 2-13, “which ‘demonstrate[ ] a
plausible Trademark Act Section 2(d) claim against the involved application for the
mark’ [AURI].” Cielo e Terra, 2026 WL 2624328, at *3 (quoting Heil Co. v. Tripleye
GmbH, No. 91277359, 2024 WL 4925901, at *15 (TTAB 2024)). Opposer has
established its statutory entitlement to bring its Section 2(d) claim.
V. Opposer’s Section 2(d) Claim
“Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), prohibits registration of
a mark that ‘[c]onsists of or comprises a mark which so resembles a mark registered
in the Patent [and] Trademark Office, or a mark or trade name previously used in
the United States by another and not abandoned, as to be likely, when used on or in
connection with the [goods] of the applicant, to cause confusion, or to cause mistake,
or to deceive.” Cielo e Terra, 2026 WL 2624328, at *3 (quoting Sage Therapeutics, Inc.
v. Sageforth Psych. Servs., LLC, No. 91270181, 2024 WL 1638376, at *4 (TTAB 2024)
(quoting 15 U.S.C. § 1052(d)). “To prevail on its Section 2(d) claim, Opposer must
show by a preponderance of the evidence that it has either a registration of or priority
in its . . . mark[s], and that Applicant’s use of its mark is likely to cause confusion,
mistake, or deception regarding the source of the [goods] identified in its
Application.” Id. (quoting Sage Therapeutics, 2024 WL 1638376, at *4).

Opposition No. 91292154
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A. Priority
“For purposes of priority, proprietary rights may arise from a prior registration,
prior trademark or service mark use, prior use as a trade name, prior use analogous
to trademark or service mark use, or any other use sufficient to establish proprietary
rights.” Major League Baseball Players Ass’n v. Chisena, No. 91240180, 2023 WL
2986321, at *4 (TTAB 2023) (internal quotation, quotation marks, and citations
omitted), aff’d, 2026 WL 60319 (Fed. Cir. 2026). See also Herbko Int’l, Inc. v. Kappa
Books, Inc., 308 F.3d 1156, 1162 (Fed. Cir. 2002). Opposer asserts priority based on
its registrations and its alleged common-law use.
There is no dispute regarding Opposer’s priority based on its pleaded ’975 and ’051
Registrations. Because Opposer properly submitted its registrations showing their
current title and status, and Applicant did not counterclaim to cancel them, priority
is not at issue with respect to the two registered marks and the services identified in
the registrations. Cielo e Terra, 2026 WL 2624328, at *4 (citation omitted). We will
focus our analysis under Trademark Act Section 2(d) on the marks shown in, and the
services identified in, the ’975 and ’051 Registrations.26
26 The parties dispute Opposer’s priority with respect to its pleaded common-law mark AURI.
In its reply brief, Opposer accepts April 2022 as Applicant’s date of first use. 44 TTABVUE
6. Opposer’s evidence of common-law use of AURI prior to that date is (1) Mr. Schlecht’s
testimony that Opposer has continually used the mark since 1992, Schlecht Decl. ¶ 16 (7
TTABVUE 4), (2) the cover page from a January 1992 edition of Opposer’s newspaper entitled
AG INNOVATION NEWS The Newspaper of the Agricultural Utilization Research Institute,
Schlecht Decl. ¶ 23; Ex. PX11 (7 TTABVUE 5, 38), and (3) Mr. Schlecht’s testimony regarding
Opposer’s revenues and advertising expenditures between 2000 and 2025. Schlecht Decl. ¶ 24
(7 TTABVUE 5-6). This sparse evidence may be sufficient to show that Opposer used the
AURI mark prior to April 2022 in some manner, but common-law trademark rights are
established only when a mark is used for particular goods or services, and they are not rights
in gross. See Univ. of Notre Dame du Lac v. J. C. Gourmet Food Imps. Co., 703 F.2d 1372,

Opposition No. 91292154
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B. Likelihood of Confusion
As noted above, Opposer pleaded a single claim of likelihood of confusion, 1
TTABVUE 5-6 (Not. of Opp. ¶¶ 11-19), and pursued that claim in its main brief. 39
TTABVUE 16 (arguing that Opposer’s evidence shows that consumers “believe that
gummy products marked by [Applicant] with the trademark Auri would come from
[Opposer]” because Opposer “is well known in the food space, and indeed, has worked
with many clients to produce mushroom and nutritional supplement products.”).
Our determination of the likelihood of confusion under Section 2(d) is based on an
analysis of the “facts in evidence that are relevant to the factors bearing on the issue
of likelihood of confusion.” DowntownDC Bus. Improvement Dist. v. Clarke,
No. 91275100, 2024 WL 4449409, at *18 (TTAB 2024) (citing In re E.I. DuPont de
Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”)). “We discuss the
DuPont factors for which there is relevant argument and evidence.” Id. (citing In re
Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019)).
“In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the [goods or] services.”
Id. (citing Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103
(CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
1374 (Fed. Cir. 1983). Opposer’s evidence does not establish use of the AURI mark on any
particular services, including any services in addition to those identified in its ’975 and ’051
Registrations. Although Applicant concedes that the evidence may establish common-law
rights in the AURI mark for “a narrow subset of highly specialized agricultural services
within the state of Minnesota,” 41 TTABVUE 15, Opposer’s broadest prior rights on this
record arise from its ’975 and ’051 Registrations.

Opposition No. 91292154
- 22 -
effect of differences in the essential characteristics of the goods and differences in the
marks.”)).
Opposer argues that “[h]ere, the numerous instances of actual confusion, the
identical marks, and related nature of the parties’ goods and services play dominant,
dispositive roles.” 39 TTABVUE 19. The claimed “numerous instances of actual
confusion” invoke the seventh DuPont factor, the “nature and extent of any actual
confusion,” DuPont, 476 F.2d at 1361, which Opposer discusses at length. 39
TTABVUE 19-23. Opposer also addresses the key first two DuPont factors, 39
TTABVUE 23-29, the third DuPont factor, the “similarity or dissimilarity of
established, likely-to-continue trade channels,” DuPont, 476 F.2d at 1361, 39
TTABVUE 29-30, and the fourth DuPont factor, the “conditions under which and
buyers to whom sales are made, i. e. ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361, 39 TTABVUE 31.27
In its brief, Applicant addresses the key first two DuPont factors, 41 TTABVUE
20-28, as well as the third factor, id. at 28-33, and the seventh factor, id. at 33-41,
and also argues that it acted in good faith in adopting the AURI mark. Id. at 41-42.28
Opposer must prove its likelihood-of-confusion claim by a preponderance of the
evidence. DowntownDC, 2024 WL 4449409, at *1.
27 Opposer also argues that Applicant’s claimed good faith in adopting its AURI mark does
not weigh in Applicant’s favor. 39 TTABVUE 31-32. We agree. Cielo e Terra, 2026 WL
2624328, at *4 n.11.
28 As noted above, the last argument is irrelevant to our analysis of the likelihood of confusion.

Opposition No. 91292154
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1. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, “[w]e consider the marks in their entireties as to
appearance, sound, connotation and commercial impression.” Sage Therapeutics,
2024 WL 1638376, at *5 (citing Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee en 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005)). “Similarity in any one
of these elements may be sufficient to find the marks confusingly similar.” Id.
(quoting In re Inn at St. John’s, LLC, No. 87075988, 2018 WL 2734893, at *5 (TTAB
2018), aff’d per curiam, 777 F. App’x 516 (Fed. Cir. 2019)); 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).
“The proper test 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.” Sage Therapeutics, 2024 WL 1638376, at *5 (quoting Coach
Servs. Inc. 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 marks.’” Id. (quoting In re i.am.symbolic, llc, No.
85916778, 2018 WL 3993582, at *4 (TTAB 2018) (citations omitted)).
Applicant’s mark is AURI in standard characters. We display again below
Opposer’s marks shown in the ’975 and ’051 Registrations:

Opposition No. 91292154
- 24 -
Opposer argues that “[t]he dominant portion of the registered marks utilized by
[Opposer] is the word ‘AURI’,” and that “comparison of that dominant part with
[Applicant’s] Auri mark makes likelihood of confusion clear.” 39 TTABVUE 24
(citation omitted).
Applicant responds that Opposer’s terse argument “completely disregards the
substantial visual and conceptual differences, and differences in commercial
impression, between Applicant’s standard character mark and Opposer’s highly
stylized composite trademarks.” 41 TTABVUE 20. According to Applicant,
the proper comparison of the marks is between Applicant’s
applied-for AURI mark and Opposer’s composite
Registered Marks . . . . While Opposer simply concludes
that the term “AURI” forms the dominant portion of its
Registered Marks, this is not an automatic legal
determination. Rather, the dominant feature of a
composite mark is evaluated on a case-by-case basis.
Id. at 21 (citation omitted). Applicant further argues that
while Opposer’s composite registered marks incorporate
the acronym “AURI,” they are inextricably tied to

Opposition No. 91292154
- 25 -
significant additional wording, intricate stylization, and
prominent design elements. Specifically, both of Opposer's
registered marks feature a prominent rectangular design
that evokes an agrarian landscape containing curved
ribbons of gold, white, green, and blue. Furthermore, the
acronym is either coupled with the highly descriptive,
stacked wording “Agricultural Utilization Research
Institute,” or paired with the word “Connects:” alongside
an elaborate geometric arrangement of gold lines and
circles.
Id. at 21-22.
Applicant claims that “it is self-evident that the mark AURI AGRICULTURAL
UTILIZATION RESEARCH INSTITUTE (& design) employs the term AURI as an
acronym. The full name of Opposer appears directly beneath this term. Although the
terms Agricultural Utilization Research Institute are descriptive and disclaimed,
these terms cannot be ignored when evaluating similarity,” id. at 22 (citation
omitted), and that “the combination of the highly descriptive wording with the AURI
acronym only acts to educate consumers that the acronym is ‘substantially
synonymous’ with the merely descriptive wording – further undermining the strength
of Opposer’s marks.” Id. (citations omitted).
Applicant concludes that “[w]hen properly analyzed, the respective marks cannot
be viewed as ‘identical’ or even ‘nearly identical,’ as the Opposer may wish.
Substantial differences between the marks are distinguishing, especially when taken
in the context of the vast difference in respective goods and services. This factor is
therefore neutral.” Id. at 23.
In its reply brief, Opposer responds that Applicant
makes the odd argument that for the stylized mark
consisting of AURI AGRICULTURAL UTILIZATION

Opposition No. 91292154
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RESEARCH INSTITUTE, with “AGRICULTURAL
UTILIZATION RESEARCH INSTITUTE” disclaimed . . .
AURI cannot be the dominant portion. As is shown in the
mark, AURI is in the largest font, and clearly [is] the most
important element, and [the] only non-disclaimed word
element.
44 TTABVUE 12.
Applicant correctly argues that marks must be considered in their entireties, 41
TTABVUE 23, but “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.” Cielo e Terra, 2026
WL 2624328, at *22 (quoting In re Detroit Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir.
2018) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985)).
As discussed above, the parties disagree about the dominant portion of the
composite marks shown in the ’975 and ’051 Registrations, so we will begin our
analysis by addressing that issue. The mark shown in the ’975 Registration consists,
from top to bottom, of a multi-colored design, the bolded and stylized letters auri,
and the words “Agricultural Utilization Research Institute.” The mark shown in the
’051 Registration consists of a design above the words “auri Connects:,” with the lead
word “auri” in darker letters and the word “Connects” followed by a colon in gold, and
the mark contains what Opposer describes as “an arrangement of gold lines
emanating from a center point and connecting with several gold circles.”
“When a mark comprises both words and a design, the words are normally
accorded greater weight because they are more likely to be impressed upon a

Opposition No. 91292154
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purchaser’s memory and would typically be used by purchasers to request the goods
or services.” Iron Balls Int’l Ltd. v. Bull Creek Brewing, LLC, No. 92079099, 2024 WL
2844425, at *12 (TTAB 2024) (citing In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir.
2012)). That general principle applies here to both of Opposer’s registered marks.
Although the design elements of the marks are colorful and eye-catching, they cannot
be verbalized and consumers are most likely to recall and use the marks’ verbal
elements. “The verbal portion of a word and design mark ‘likely will appear alone
when used in text and will be spoken when requested by consumers.’” In re Aquitaine
Wine USA, LLC, No. 86928469, 2018 WL 1620989, at *2 (TTAB 2018) (quoting
Viterra, 671 F.3d at 1362 (internal quotation omitted)). Such use of the verbal
elements in text is illustrated in various exhibits to the Schlecht Declaration.
Schlecht Decl. Exs. PX3-PX9 (7 TTABVUE 18-33).
The verbal portion of the mark shown in the ’975 Registration consists of the
bolded and stylized letters auri, which abbreviate the words “Agricultural Utilization
Research Institute.” Those words are descriptive of the services and, whether
disclaimed in whole or in part, are entitled to less weight than “auri.”29 As between
the letters and the words, we find that it is more likely that consumers will remember
29 As noted above, the scope of Opposer’s disclaimer is not clear, but even if the entire phrase
“Agricultural Utilization Research Institute” has been disclaimed, “an acronym or initialism
is not considered descriptive unless it has become so generally understood as representing
descriptive words as to be accepted as substantially synonymous with those words.” Sawstop,
LLC v. Felder KG, No. 91255905, 2025 WL 2400134, at *8 n.33 (TTAB 2025) (internal
quotation and quotation marks omitted). In any event, any assertion by Applicant about the
possible descriptiveness of AURI “is in essence an attack on the validity of Opposer’s
registration. The Board cannot entertain such an attack absent a counterclaim or petition to
cancel the registration.” Pierce-Arrow Soc’y v. Spintek Filtration, Inc., No. 91224343, 2019
WL 3834985, at *13 (TTAB 2019) (citation omitted).

Opposition No. 91292154
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and use the letters than the words. After all, the whole point of the use of an
abbreviation such as “auri” is to make it unnecessary to remember the longer
abbreviated phrase. See, e.g., Am. Mut. Ins. Co. v. R. H. Cosmetics Corp., No.
92010846, 1979 WL 24882, at *3, 8 (TTAB 1979) (finding that with respect to the
petitioner’s mark AMICA, “the adoption and use of this acronym was occasioned by
the need of a convenient term of reference to opposer’s predecessors,” including the
American Mutual Insurance Company of America, and “to avoid a ‘mouthful’.”). We
note in that regard that Mr. Johansen testified with respect to Applicant’s mark that
he thought that the “short length” of AURI “would be easy for consumer recognition
and recall,” Johansen Decl. ¶ 6 (38 TTABVUE 5-6), and Applicant argues in its brief
that AURI was chosen “due to its short length which allowed for easy consumer
recognition.” 41 TTABVUE 9-10.
The verbal elements in the mark shown in the ’051 Registration are “auri” in dark
lettering and “Connects:” in gold lettering. The grammatical structure of those
elements focuses attention on the noun “auri,” which is the subject of the verb
“Connects.” As between “auri” and “Connects,” we find that it is more likely that
consumers will remember and use the word “auri” to identify the source of the
services with which the mark is used.
In the marks shown in the ’975 and ’051 Registrations, the word “auri” in stylized
lowercase letters is “[d]isplayed in a large, bold typeface” and, to varying degrees,
“comprises the largest literal portion of the mark in terms of size, position, and
emphasis. It is also the first term in the mark, further establishing its prominence.”

Opposition No. 91292154
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Aquitaine Wine, 2018 WL 1620989, at *2 (quoting Palm Bay, 396 F.3d at 1372-73).
We find that the word “auri” is the dominant portion of the marks shown in the ’975
and ’051 Registrations.
We turn now to the required comparison of the marks in their entireties, in which
we will give greater weight to the bolded and stylized word auri in Opposer’s marks
than to the other elements of the marks.
With respect to appearance, Applicant’s AURI mark is a standard-character mark
and as such “could be used in any typeface, color, or size, including the same
stylization actually used or intended to be used by the other party, or one that
minimizes the differences or emphasizes the similarities between the marks.” Cielo e
Terra, 2026 WL 2624328, at *23 (quoting Anheuser-Busch, LLC v. Innvopak Sys. Pty
Ltd., No. 91194148, 2015 WL 5316485, at *8 (TTAB 2015) (internal citation omitted)).
Accordingly, we must assume that Applicant’s standard-character mark AURI
could appear in the same font style, colors, and lowercase letters in which the word
AURI appears in Opposer’s registered marks, as shown again below:
This hypothesized display “minimizes the differences or emphasizes the similarities
between the marks” when they are considered in their entireties. Id.
We must also visualize other manners in which Applicant’s standard-character
mark might appear, and illustrations of the mark as it is actually used may assist us

Opposition No. 91292154
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in doing so. Id. (citing Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1353
(Fed. Cir. 2011)). Applicant’s specimen of use, displayed in pertinent part below,
displays Applicant’s standard-character mark in lettering that is similar in
appearance to the lettering in the dominant bolded and stylized word auri in
Opposer’s marks:
30
This actual depiction of Applicant’s standard-character mark also “minimizes the
differences or emphasizes the similarities between the marks” when they are
considered in their entireties. Id.
We find that the marks are similar in appearance from the standpoint of a
consumer with a general rather than specific recollection of Opposer’s marks, both of
which are dominated by the acronym auri, who separately sees Applicant’s AURI
mark.
30 October 24, 2022 Application at 7.

Opposition No. 91292154
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With respect to sound, the literal portion of the mark shown in the ’975
Registration, “auri Agricultural Utilization Research Institute,” is a proverbial
“mouthful” to verbalize, and “the Board has acknowledged the ‘penchant of consumers
to shorten marks.”’ Id. at *25 (quoting Iron Balls, 2024 WL 2844425, at *25 (internal
citation omitted)). Given that Opposer itself has provided consumers with an acronym
for its full trade name in the mark shown in the ’975 Registration, “we find that it is
very likely, indeed probably inevitable,” id., that the mark will be verbalized as “auri”
alone. In that event, the marks would be identical in sound from the standpoint of a
consumer with a general rather than specific recollection of the sound of Opposer’s
mark who separately hears Applicant’s AURI mark verbalized. But even in the very
unlikely event that the entire “mouthful” of words in Opposer’s mark is verbalized,
the marks would sound similar because the word “auri” is the first thing heard when
Opposer’s mark is verbalized and the only thing heard when Applicant’s mark is
verbalized.
The literal portion of the mark shown in the ’051 Registration is considerably
shorter, so it may be less likely that consumers will verbalize the mark as “auri”
alone, but even if the entire literal portion is verbalized as “auri Connects,” the marks
would sound quite similar because the word “auri” is the first thing heard when
Opposer’s mark is verbalized and the only thing heard when Applicant’s mark is
verbalized.
Finally, with respect to meaning, the word auri in the mark shown in the ’975
Registration is an abbreviation meaning “Agricultural Utilization Research

Opposition No. 91292154
- 32 -
Institute,” while the word auri in the mark shown in the ’051 Registration, and the
word AURI that comprises Applicant’s mark, have no apparent meanings on the face
of the marks. As Mr. Johansen put it, “AURI was chosen arbitrarily and has no
connection to mushrooms, supplements, health, or any other attribute of [Applicant’s]
business.” Johansen Decl. ¶ 6 (38 TTABVUE 7). A consumer with a general rather
than specific recollection of Opposer’s marks, which are dominated by the word auri,
who separately encounters Applicant’s mark, which is AURI, could readily
understand Applicant’s mark to be the acronym auri, and the word auri, in Opposer’s
marks. We find that the marks are similar in connotation and commercial impression.
The marks are similar in appearance, sound, and connotation and commercial
impression when considered in their entireties, and the first DuPont factor supports
a conclusion that confusion is likely with respect to both of Opposer’s marks. Naterra,
Inc. v. Bensalem, 92 F.4th 1113, 1119 (Fed. Cir. 2024).
2. Similarity or Dissimilarity of the Goods and Services,
Channels of Trade, and Classes of Consumers
a. Second DuPont Factor
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
Athletic Co., 903 F.3d at 1306. “This factor considers whether ‘the consuming public
may perceive [the goods or services] as related enough to cause confusion about the
source or origin of the goods or services.’” In re St. Helena Hosp., 774 F.3d 747, 752
(Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,
1267 (Fed. Cir. 2002)). “In analyzing the [goods and] services, the Board considers

Opposition No. 91292154
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‘[t]he similarity or dissimilarity and nature of the [goods and] services as described
in an application or registration.’” In re OSF Healthcare Sys., No. 88706809, 2023 WL
6140427, at *4 (TTAB 2023) (quoting In re Embiid, No. 88202890, 2021 WL 2285576,
at *10 (TTAB 2021)).
The goods and services “‘need not be identical or even competitive to find a
likelihood of confusion.’” Id. (quoting In re Country Oven, Inc., No. 87354443, 2019
WL 6170483, at *2 (TTAB 2019)). “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. (quoting
Country Oven, 2019 WL 6170483, at *2 (quoting Coach Servs., 668 F.3d at
1369 (internal quotation omitted)).
The relatedness of goods and services may be established based on (1) the
language of the involved identifications of goods and services, which may show, on
the face of the identifications, that the goods and services are literally or legally
identical, or are otherwise intrinsically related, and (2) other evidence, including
testimony and third-party uses or registrations, which may show that the identified
goods and services are commonly offered by the same entity under the same mark, or
are otherwise related. See, e.g., id. at *4. As discussed below, Opposer relies on the
latter type of proof.
The goods identified in the opposed application are “Nutritional supplements in
the form of gummies” in Class 5.
The services identified in the ’975 Registration are

Opposition No. 91292154
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“Research and development in the field of agriculturally-
based innovations; Scientific and technological services,
namely, scientific and technical assistance in the nature of
integrated scientific research, product development and
product testing for agricultural coproducts, biobased
products, renewable energy products and food; Scientific
research consulting in the field of biobased products,
renewable energy, coproduct utilization and food;
Technology consultation and research in the field of
biobased products, renewable energy, coproduct utilization
and food” in Class 42.31
The services identified in the ’051 Registration are
“Arranging and conducting of educational seminars, online
and in-person educational forums, panel discussions,
professional network groups, conferences, webinars,
classes, and programs with thought leaders in the field of
agriculturally-based innovations and utilization of
agricultural research” in Class 41.
The involved identifications all “must be construed most favorably to the opposing
prior user.” Tuxedo Monopoly, 648 F.2d at 1337 (citing CTS Corp. v. Cronstoms Mfg.
Inc., 515 F.2d 780, 782 (CCPA 1975) (“consider[ing] it proper in this case to construe
[the applicant’s] description of its goods in the manner most favorable to [the
opposer]”)).
Opposer argues that “[t]he goods in the Application are highly related to the
services covered by [Opposer’s] registrations as evidenced by the fact that many
marks exist on the register which recite goods and services that overlap between
[Applicant’s] and [Opposer’s] application and registrations.” 39 TTABVUE 25.
31 “Opposer need not prove, and we need not find, similarity as to each . . . service listed in”
the ’975 and ’051 Registrations. Heil Co., 2024 WL 4925901, at *33. See Tuxedo Monopoly,
Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336-37 (CCPA 1981).

Opposition No. 91292154
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Opposer points to 11 specific third-party registrations in support of this argument.
Id. at 25-28.32
Opposer further argues that it “services clients in the mushroom dietary
supplement area” and has identified “seven projects related to mushrooms, and nine
projects for dietary supplements,” and that “[a] dietary supplement and nutrition
supplement, as sold by [Applicant] are considered equivalent by the Food and Drug
Administration.” Id. at 28.
Finally, Opposer cites the Board’s non-precedential decision in In re Kyäni, Inc.,
No. 87117834, 2018 WL 3105233 (TTAB May 21, 2018), for the proposition that the
Board has previously found that “that an application which identified ‘dietary
supplements’ and ‘nutritional supplements’ was sufficiently related to educational
related services such that the relatedness of the goods and services weighed in favor
of a likelihood of confusion.” 39 TTABVUE 28.
Applicant responds that “Opposer failed to establish any connection between its
agricultural research, consulting, and educational seminar services and Applicant’s
nutritional supplements - one of the most critical factors in a Section 2(d) analysis.”
41 TTABVUE 23 (citation omitted). According to Applicant, Opposer “attempts to
manufacture a connection between the respective goods and services through
unsupported and vague references to a handful of past food consultation projects that
32 Opposer also cites what it describes as “a number of third-party references which recite
services included in, or similar to, both the goods listed in [Applicant’s] Auri application and
services listed in [Opposer’s] registrations.” 39 TTABVUE 28.Opposer does not point to any
such specific “references” and it appears that this discussion is not directed to any third-party
uses, but is instead simply another way of describing the third-party registrations.

Opposition No. 91292154
- 36 -
happen to involve mushrooms (a mere ingredient in Applicant’s products) and a faulty
list of third-party registrations that claim both supplements and information
services,” and “Opposer’s services are so distinct and far afield from Applicant’s
supplement products there is not even a tenuous connection between them that could
lead consumers to believe that the respective goods and services originate from a
single source.” Id. at 24.
Applicant argues that Opposer’s argument that “it “services clients in the
mushroom dietary supplement area,” id. (citing 39 TTABVUE 28), is a “sweeping
claim [that] is unsupported by the record,” id., and that Opposer “overrel[ies] on
third-party registrations that identify information services and nutritional
supplements,” id. at 25, offering a detailed critique of Opposer’s third-party
registration evidence. Id. at 25-27. Finally, Applicant distinguishes the Board’s non-
precedential decision in Kyäni, arguing that the Board’s finding of relatedness,
including its analysis of third-party registration evidence, “was specific to the record
of that case.” Id. at 27.
Applicant concludes that “this factor weighs heavily in Applicant’s favor, in view
of Opposer’s lack of evidence to establish any connection between the parties
respective goods and services. In fact, this factor is so supportive of Applicant’s
position that it can be dispositive of likelihood of confusion.” Id. at 28 (citation
omitted).
In its reply brief, Opposer takes issue with Applicant’s critique of Opposer’s third-
party registration evidence, 44 TTABVUE 12-13, arguing that “9 of the 11 marks are

Opposition No. 91292154
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supported by evidence of use in commerce in the United States for overlapping goods
as those at issue in this proceeding.” Id. at 12.33 Opposer concludes that “it is
undisputed the nutritional supplements typically emanate from the same source as
consulting and educational services” and “[t]here is no support in case law or in the
briefing that only third-party registrations related to agricultural services are
relevant.” Id. at 13 (emphasis in bold here in italics in Opposer’s reply brief).
We begin our analysis with Opposer’s third-party registration evidence. “As a
general proposition, third-party registrations that cover goods and services from both
[a pleaded registration] and an Applicant’s application are relevant to show that the
goods and services are of a type that may emanate from a single source under one
mark.” Country Oven, 2019 WL 6170483, at *5 (citations omitted). In considering
third-party registrations for this purpose, “[j]ust as we must consider the full scope
of the goods and services as set forth in the application and registration[s] under
consideration, we must consider the full scope of the goods and services described in
a third-party registration.” Id.
Opposer made of record 11 third-party registrations. We summarize their
coverage below:
33 We understand Opposer’s reference to “evidence of use in commerce in the United States”
to mean that nine registrations issued on the basis of such use, not that there is separate
record evidence showing the actual use of the registered marks.

Opposition No. 91292154
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• Registration No. 5263464 covers, inter alia, “nutritional supplements,”34
and “Online journals, namely, blogs, featuring advice on food, nutrition, and
health” in Class 41, 15 TTABVUE 13-14;
• Registration No. 7756810 covers, inter alia, “dietary and nutritional
supplements” and “education and instruction services, namely, providing
classes, seminars, workshops in the field of dietary and nutritional
preparations; education, namely, instruction in the life sciences” in Class
41, id. at 16-17;35
• Registration No. 7804129 covers, inter alia, “nutritional supplements” and
“Providing a website featuring non-downloadable articles in the field of
health, wellness, fitness, weight loss, dietary supplements, and health and
nutritional products; on-line journals, namely, blogs featuring health,
wellness, fitness, weight loss, dietary supplements, and health and
nutritional products” in Class 41, id. at 21-22;
• Registration No. 5617928 covers “nutritional supplements,” and
“Education services, namely, providing tutorial consultation sessions in the
field of neuropathy treatment protocols; Educational services, namely,
conducting classes, seminars and workshops in the field of neuropathy
treatment protocols” in Class 41, id. at 25;
• Registration No. 5871286 covers “Vitamins and nutritional supplements”
and “Entertainment services, namely, an ongoing radio show in the field of
health and wellness; Entertainment services, namely, providing podcasts in
the field of health and wellness” in Class 41, id. at 29-30;
• Registration No. 3967892 covers “nutritional supplements” and “Providing
health information, namely, information in the field of healthcare and
nutritional supplements, dietary supplements, vitamin and mineral
supplements” in Class 44, id. at 33-34;36
• Registration No. 7217509 covers “nutritional supplements” and “On-line
journals, namely, blogs featuring health and wellness, women’s health,
nutrition and nutritional supplements, detoxification and anti-aging;
Entertainment services, namely, providing podcasts in the field of health
34 The full scope of the goods identified as “nutritional supplements” in this registration and
in the others discussed below covers the “Nutritional supplements in the form of gummies”
identified in the application.
35 This registration issued under Section 66A of the Trademark Act, 15 U.S.C. § 1141f(a),
which does not require a showing of use in commerce.
36 This registration was originally owned by the current listed owner of Registration No.
2816008 below and was assigned to its current owner in 2014. 15 TTABVUE 35-36.

Opposition No. 91292154
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and wellness, women’s health, nutrition and nutritional supplements,
detoxification and anti-aging; Educational services, namely, workshops and
seminars in the field of health and wellness, women’s health, nutrition and
nutritional supplements, detoxification and anti-aging” in Class 41, id. at
40-41;
• Registration No. 7453815 covers “nutritional supplements” and
“educational services, namely, providing online classes, seminars, and
workshops in the field of growing and utilizing home plants for health and
lifestyle benefits” in Class 41, id. at 44-45;
• Registration No. 7102647 covers, inter alia, “Animal feed additives for use
as nutritional supplements intended for veterinary use,” “nutritional
additives for use as nutritional supplements intended for animal feed for
medical use,” “nutritional supplements for foodstuffs for livestock,” and
“nutritional supplements for veterinary use,” and “virtual or presential
training services in the field of nutrition; arranging and conducting
educational congresses, colloquiums, conferences, seminars, and workshops
in the field of science and technology, more specifically industrial
production, biotechnology and pharmaceutical production, quality system
development and implementation, biotechnology, microbiology, biologic
therapeutic products, alternative diagnostics and detection methods,” and
“educational services, namely, conducting courses of instruction in the field
of nutrition,” in Class 41, and “technical consulting relating to research
services concerning food and dietary supplements” in Class 42, id. at 47-
49;37
• Registration No. 2816008 covers “vitamin and mineral supplements for
humans,” and “food supplements for non-medical purposes, consisting
primarily of vitamins, amino acids and trace elements,” the full scope of
which covers the “Nutritional supplements in the form of gummies”
identified in the application, and “Educational services, namely conducting
seminars, [and] courses in the fields of health care, health precautions, and
nutrition” in Class 41, and “Scientific research” in Class 42, id. at 53-54;
and
• Registration No. 2990375 covers “meal replacement powders and meal
replacement bars” in Class 5, “Educational services, namely, seminars,
directed to physicians regarding the development of nutritional programs
in their practices including education on the topics of the use of nutritional
protocols, nutritional supplements, and nutritional assessment tools” in
Class 41, and “Product research and development in the nutritional
37 This registration issued under Section 44(e) of the Trademark Act, 15 U.S.C. § 1126(e),
which also does not require a showing of use in commerce.

Opposition No. 91292154
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products industry” and “research and development in the field of genomics
and proteomics” in Class 42. Id. at 57-58.
There are multiple problems with these registrations as proof of the relatedness
of the services identified in the ’975 and ’051 Registrations to the goods identified in
the opposed application. First, as noted above, Registration Nos. 7756810 and
7102647 issued under Sections 44(e) and 66A of the Trademark Act without a
showing of use of the marks in commerce, and have not yet been maintained based
on such use. “Because these registrations are not based on use in commerce, they
have no probative value in showing the relatedness of the [goods] and services.” In re
1st USA Realty Pros., Inc., No. 78553715, 2007 WL 2315610, at *2 (TTAB 2007).
Second, the full scope of the goods identified in Registration No. 2990375, “meal
replacement powders and meal replacement bars,” does not encompass the
“Nutritional supplements in the form of gummies” identified in the application (or
vice versa). By definition, “nutritional supplements in the form of gummies”
supplement rather than replace meals, and are not sold as “powders” or “bars.”
Because Registration No. 2990375 does not cover the goods identified in the opposed
application or a legal equivalent, it is not probative of the relatedness of those goods
to the services identified in the ’975 and ’051 Registrations.
Third, the educational services identified in the ’051 Registration, “Arranging and
conducting of educational seminars, online and in-person educational forums, panel
discussions, professional network groups, conferences, webinars, classes, and
programs with thought leaders in the field of agriculturally-based innovations and
utilization of agricultural research,” are restricted to a specific field. None of the five

Opposition No. 91292154
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use-based registrations that cover both nutritional supplements and some type of
educational services cover educational services in “the field of agriculturally-based
innovations and utilization of agricultural research,” or in a legally equivalent or
intrinsically related field.38 The use-based third-party registrations thus do not show
that nutritional supplements in the form of gummies and the educational services
identified in the ’051 Registration are related.
Finally, only one use-based third-party registration, Registration No. 2816008,
which covers “Scientific research,” covers services in Class 42. The full scope of these
services encompasses the “Research and development in the field of agriculturally-
based innovations,” “Scientific and technological services, namely, scientific and
technical assistance in the nature of integrated scientific research, product
development and product testing for agricultural coproducts, biobased products,
renewable energy products and food,” and “Technology consultation and research in
the field of biobased products, renewable energy, coproduct utilization and food”
services identified in the ’975 Registration. Although a single use-based third-party
registration may be relevant on the issue of the relatedness of the goods and services,
its probative value is obviously very limited because “the existence of [third-party]
registrations is not evidence of what happens in the market place or that customers
38 Registration No. 5617928 covers “the field of neuropathy treatment protocols;” Registration
No. 7217509 covers “the field of health and wellness, women’s health, nutrition and
nutritional supplements, detoxification and anti-aging;” Registration No. 7453815 covers
“the field of growing and utilizing home plants for health and lifestyle benefits;” Registration
No. 2816008 covers “the fields of health care, health precautions, and nutrition;” and
Registration No. 2990375 covers educational services “directed to physicians regarding the
development of nutritional programs in their practices including education on the topics of
the use of nutritional protocols, nutritional supplements, and nutritional assessment tools.”

Opposition No. 91292154
- 42 -
are familiar with them,” AMF Inc. v. Am. Leisure Prods. Inc., 474 F.2d 1403, 1406
(CCPA 1973), and we have no information regarding the extent and exposure of the
registrant’s use of its mark in connection with the identified goods and services. “[W]e
find that this one third-party registration is not sufficient to establish that”
nutritional supplements in the form of gummies and the research services identified
in the ’975 Registration are related, “even when considered with the other evidence.”
In re Princeton Techtonics, Inc., No. 77436425, 2010 WL 2604976, at *3 (TTAB 2010).
Cf. Country Oven, 2019 WL 6170483, at *5 (finding that third-party registrations
“covering both bakery services and bakery goods owned by 14 different entities” were
sufficient to establish a reasonable predicate for the examining attorney’s position
that the goods and services were related).
We turn next to Mr. Schlecht’s testimony regarding relatedness. He testified that
Opposer “has provided services to several clients in the mushroom area,” Schlecht
Decl. ¶ 26 (7 TTABVUE 7), and provided what he called a “description of selected
projects,” Schlecht Decl. ¶ 26 (7 TTABVUE 7), in which Opposer “[a]ssisted in
development” of mushroom jerky, a pickled mushroom product, mushroom pates, an
inline sterilization process, and a CBD gummy product. Schlecht Decl. ¶ 26 (7
TTABVUE 7).39
He also testified that Opposer “has also helped several clients in the dietary
supplement area.” Schlecht Decl. ¶ 27 (7 TTABVUE 7). He again provided what he
39 Mr. Schlecht also testified that Opposer was involved in “[p]roduction of a mushroom based
lip balm, lotion and future bio-based soap.” Schlecht Decl. ¶ 26 (7 TTABVUE 7).

Opposition No. 91292154
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called a “description of several such projects,” Schlecht Decl. ¶ 27 (7 TTABVUE 8), in
which Opposer “[a]ssisted in development” of a lactation cookie product, a heart
health bar, lactation bars, a CBD product, a women’s health snack bar, a nutrition
bar, an immunity boosting syrup, an elderberry syrup, and a hemp-derived CBD for
infusing gummies. Schlecht Decl. ¶ 27 (7 TTABVUE 8).
Mr. Schlecht was cross-examined about the mushroom-related projects. Schlecht
Cross. Tr. 17:1-19:13 (23 TTABVUE 23-25). He testified that he did “not know the
date of completion for the projects” because “I have a team that works on these” and
“I don’t get heavily involved in a lot of the project activity.” Schlecht Cross. Tr. 17:11-
13 (23 TTABVUE 23). With respect to the size of the contracts and the scope of
Opposer’s work, he testified that he knew “just what is listed here in terms of how we
assisted,” Schlecht Cross. Tr. 18:4-8 (23 TTABVUE 24), and that he did “not have the
time -- time frame of when these were completed or the overall, right, size of the
projects.” He testified that his “best guess would be that they’ve occurred within the
last, you know, five to ten years when the team looked at selected projects, and that
was a sampling,” but he did not know for certain. Schlecht Cross. Tr. 18:9-20 (23
TTABVUE 24). When asked by Applicant’s counsel if there was “anything you can
tell me about any one of these projects, besides what’s in the declaration,” Mr.
Schlecht responded as follows:
what I can share is that we work with clients like this,
where they have ideas only that right? There’s a range of
services that we can provide. They provide an application,
and then we see if we can assist overall, whether it be
product development, nutritional assistance, right, just

Opposition No. 91292154
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processing or packaging. Each one is different, right?
They’re highly specific in terms of what the objectives are.
Schlecht Cross. Tr. 18:21-19:6 (23 TTABVUE 24-25).
Mr. Schlecht concluded that “I -- I do not have any additional details that -- that I
am able to provide, right, on these, other than these are projects that we’re utilizing
mushroom as a feedstock that we worked on.” Schlecht Cross. Tr. 19:7-13 (23
TTABVUE 25).
Mr. Schlecht’s vague testimony about Opposer’s involvement with these
mushroom and supplement development projects does not show that “nutritional
supplements in the form of gummies” are related to the services identified in the ’975
and ’051 Registrations because his testimony does not show that the involved goods
and services are intrinsically related, or commonly (or indeed ever) “emanate from
the same source.” Heil Co., 2024 WL 4925901, at *33 (quoting Coach Servs., 668 F.3d
at 1369). Opposer, unlike Applicant, does not sell products, Voegele Cross Tr. 19:13-
14 (21 TTABVUE 21),40 but was instead the source of whatever services it provided
to its clients in these projects, not the source of whatever products its clients sold
under their own marks after these projects ended, including what Mr. Schlecht
described as “a CBD gummy product” and “a hemp-derived CBD for infusing
gummies.” Schlecht Decl. ¶¶ 26-27 (7 TTABVUE 7-8). Mr. Schlecht’s testimony does
not show that consumers of the CBD-related gummy products, or any of the other
40 In discovery, Opposer admitted that it does not use its marks in connection with consumer
goods, 25 TTABVUE 20 (Opposer’s Resp. to Req. for Adm. No. 1), and that it “has no active
license agreements with a third party to use Opposer’s Marks in connection with the third
parties’ goods or services.” 25 TTABVUE 21 (Opposer’s Resp. to Req. for Adm. No. 7).

Opposition No. 91292154
- 45 -
products, were ever exposed to Opposer’s marks or even had any idea that Opposer
was involved somehow in their development.
Finally, we address Opposer’s reliance on the Board’s non-precedential Kyäni
decision. We are not bound by non-precedential decisions, Cielo e Terra, 2026 WL
2624328, at *13 (citation omitted), but we may consider them for whatever persuasive
value they may have. The Board has previously noted the “limited utility” of reliance
on even binding precedential decisions “in lieu of supporting evidence” in showing
relatedness, Embiid, 2021 WL 2285576, at *12, and Kyäni is distinguishable in any
event. In that case, the goods and services at issue were the applicant’s “dietary
supplements; nutritional supplements; liquid nutritional supplement,” and the cited
registrant’s “educational, instructional and teaching materials, technical bulletins
and manuals, and newsletters, all in the field of health and nutrition” in Class 16 and
“providing a website incorporating a searchable computer database of web-based
health-related information, namely, articles, instructional bulletins and manuals,
technical bulletins and manuals, links to related web sites, newsletters and
magazines in field of health, natural health lifestyle, nutrition and health-related
topics” in Class 44. Kyäni, 2018 WL 3105233, at *1. The Board found that the
examining attorney had “established that third parties offer, under the same marks,
nutritional or dietary supplements on the one hand and health-related educational
materials and websites on the other,” id. at *6, based on record evidence in the form
of the websites of sellers of nutritional or dietary supplements, and 12 third-party
registrations covering the involved goods and services. Id. at *6-7. The Board found

Opposition No. 91292154
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that “the record in this case indicates that the goods and services identified in the
cited registrations and the goods identified in the involved application often have
common sources of origin, and are offered under the same marks.” Id. at *7.
Here, as discussed above, there is only one relevant third-party registration with
respect to the services identified in the ’975 Registration and none with respect to the
services in the ’051 Registration, and the only third-party websites in the record are
those of resellers of Applicant’s goods, none of which references Opposer’s services.
Kyäni thus does not aid Opposer.
We find that Opposer’s services and Applicant’s goods are unrelated, and the
second DuPont factor strongly supports a conclusion that confusion is not likely with
respect to the marks shown in the ’975 and ’051 Registrations.
b. Third DuPont Factor
The third DuPont factor “considers ‘[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.” Detroit Athletic Co., 903 F.3d at 1308 (quoting
DuPont, 476 F.2d at 1361). As under the second factor, we must base our analysis
under the third factor on the goods identified in the application and the services
identified in the ’975 and ’051 Registrations. Stone Lion Cap. Partners, L.P. v. Lion
Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014).
Opposer argues that the parties’ consumers and channels of trade overlap. 39
TTABVUE 29. Opposer relies on its claimed showing under the second factor that
“the services marked by AURI are indeed highly related to [Applicant’s] gummy
goods” and that Opposer “does indeed provide services in the gummy and nutritional
supplement industry.” Id. at 30. According to Opposer, “as a matter of law, because

Opposition No. 91292154
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the parties’ goods and services are highly related, it necessarily and logically follows
that the trade channels and classes of consumers are identical as well,” id. (citation
omitted), and that
since the Application contains no limitation on trade
channels or targeted consumers, the Board must presume
as a matter of law that the goods identified in the
Application will be offered and promoted in all normal
channels of trade for such goods—which because they are
highly related to AURI’s services would overlap with
channels of trade where AURI’s own services are offered
and marketed—and that such services will be offered to all
normal classes of consumers—including AURI’s own
consumers.
Id. (citations omitted). Opposer does not discuss what the record evidence, including
its own website and Applicant’s website, shows regarding the channels of trade and
classes of consumers for Opposer’s services and Applicant’s goods.
Applicant responds that “Opposer has failed to present evidence to establish any
overlap in trade channels, consumers, or conditions of sale.” 41 TTABVUE 28.
Applicant argues that it “operates strictly in the direct-to-consumer (DTC) retail
market,” while Opposer “operates an exclusively business-to-business (B2B) model.”
Id. According to Applicant, “[t]here is absolutely no evidence in the record to suggest
that Applicant’s consumer retail dietary supplements and Opposer’s highly
specialized agricultural research and educational services share any ‘normal and
usual’ trade channels.” Id. at 30. Applicant argues that Opposer has admitted that
“its consulting services, fee-for-service projects and educational seminars are directly
marketed business-to-business (B2B) to a very specific subset of industry partners,
various businesses, farmers, entrepreneurs, distributors, and agricultural

Opposition No. 91292154
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producers,” id. (record citations omitted), while Applicant’s nutritional supplements
in the form of gummies are sold directly to consumers. Id.
Applicant further argues, invoking the fourth DuPont factor, the “conditions
under which and buyers to whom sales are made, i. e. ‘impulse’ vs. careful,
sophisticated purchasing,” DuPont, 476 F.2d at 1361, that “[b]eyond the parties’
unrelated distribution channels, there is a stark and vital contrast between the
Opposer’s professional business-to-business consumers and Applicant’s ordinary
retail consumers.” Id. at 31. Applicant concludes that “[b]ecause Opposer failed to
submit any probative evidence of inherent overlap between the parties’ distinct
industries, its assertion that trade channels and consumers overlap and are therefore
related outright fails as a matter of law.” Id. at 33 (citation omitted).
We begin by noting that Opposer’s reliance on legal presumptions rather than
record evidence is misplaced. We have found above that Applicant’s goods and
Opposer’s services are unrelated, and the premise for Opposer’s argument that “as a
matter of law, because the parties’ goods and services are highly related, it
necessarily and logically follows that the trade channels and classes of consumers are
identical as well,” 39 TTABVUE 30, does not exist.41 It is true that neither Applicant’s
41 Opposer cites Hewlett-Packard, in which the Federal Circuit found that the parties’ services
were “closely related,” 281 F.3d at 1268, and held that “absent restrictions in the application
and registration, goods and services are presumed to travel in the same channels of trade to
the same class of purchasers.” Id. at 1267-1268 (citing CBS Inc. v. Morrow, 708 F.2d 1579,
1581 (Fed. Cir. 1983)). As discussed above, we have not found that the parties’ goods and
services are related at all, much less that they are “closely related,” and the Federal Circuit
has subsequently clarified that goods or services must be literally or legally identical before
we can apply the presumption that their channels of trade and classes of consumers are also
identical. Viterra, 671 F.3d at 1362.

Opposition No. 91292154
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identification of goods nor Opposer’s identifications of services contain any
limitations regarding channels of trade or classes of consumers, so we must presume
that those goods and services travel “in all normal and usual channels of trade,” Iron
Balls, 2024 WL 2844425, at *23 (citation omitted), but we must identify those
channels of trade through record evidence. Inter IKEA Sys. B.V. v. Akea, LLC, No.
91196527, 2014 WL 1827031, at *10 (TTAB 2014) (“[W]hen the dispute involves the
comparison of different goods or services, this principle does not help the party
asserting a likelihood of confusion unless there is further evidence that would permit
a comparison of the normal trade channels for the parties’ respective goods or
services.”) (emphasis in bold here in italics in the original).
The record shows that Applicant’s nutritional supplements in the form of gummies
are sold through Applicant’s website, and third-party websites and social media
pages. Johansen Decl. ¶¶ 9, 17; Exs. EJV12, EJV18-EJV19 (38 TTABVUE 7, 9, 13-
65, 76-125).42 Opposer did not introduce any evidence regarding additional channels
of trade for nutritional supplements in the form of gummies except to the extent that
it made of record Applicant’s admissions in discovery that it “does not currently
utilize a full array of potential trade channels for the goods listed in” the opposed
application, 11 TTABVUE 26 (Applicant’s Resp. to Req. for Admission No. 14), and
that “there is a hypothetical potential of Applicant and Opposer using the same broad
channels to advertise their respective products and services, e.g., the Internet.” Id. at
42 Mr. Johansen testified that Applicant’s products “are sold direct to consumers through
ordinary retail channels, primarily utilizing e-commerce platforms,” Johansen Decl. ¶ 14 (27
TTABVUE 7), but he did not identify any other “ordinary retail channels.”

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27 (Applicant’s Resp. to Req. for Admission No. 17).43 “[T]here is no evidence in the
record, except applicant’s description of how it sells its nutritional . . . supplements,
as to the ordinary and usual channels of trade for nutritional . . . supplements.” Inter
IKEA, 2014 WL 1827031, at *10.
The record shows that the services identified in the ’975 and ’051 Registrations
are provided through Opposer’s website and social media pages, in webinars, online
seminar series, and podcasts directed to producers of food products, and in direct
contractual relationships between Opposer and its project clients. Schlecht Decl. Exs.
PX1-PX10 (7 TTABVUE 11-36). In discovery, Opposer stated that its “services are
used by agricultural producers, entrepreneurs, and distributors, and those products
are in turn utilized by all classes of users that purchase agricultural goods.” 25
TTABVUE 13 (Opposer’s Resp. to Interrogatory No. 17).
There is no evidence in the record that Opposer’s services are rendered through
any of the actual current and potential channels of trade in which nutritional
supplements in the form of gummies are sold to consumers. Opposer “is asking us to
assume, rather than require [O]pposer to prove, that nutritional . . . supplements
move in the same channels of trade and are sold to the same classes of consumers as”
Opposer’s services. Inter IKEA, 2014 WL 1827031, at *10. “That is not something we
can or will do, because it would not be faithful to the underlying legal principle.” Id.
43 With respect to this admission, “the mere fact that Applicant and Opposer have their
own Internet websites advertising or offering their goods is not a sufficient basis to find
overlapping trade channels.” Shenzhen IVPS Tech., 2022 WL 16646840, at *24. See also Inter
IKEA, 2014 WL 1827031, at *10.

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The record also does not show the similarity of the consumers of nutritional
supplements in the form of gummies and the consumers of the services identified in
the ’975 and ’051 Registrations. Nutritional supplements in the form of gummies are
sold to individual consumers, while the services identified in the ’975 and ’051
Registrations are rendered to what Opposer’s website describes variously as
“[l]eading agricultural institutions,” 7 TTABVUE 16, “businesses, farmers and
entrepreneurs,” id. at 19, “[a]gricultural processors,” id. at 21, and “[f]ood and
beverage entrepreneurs,” id. at 33, among other institutional clients.44 Opposer’s
website states that “[b]usinesses have access to AURI’s equipment and technical
experts in engineering, business development, biobased and coproducts science, as
well as analytical chemistry, to develop new products and processes,” and that the
“ability to access specialized equipment, along with both technical and business
expertise, is a valuable service to commercializing new bioindustrial products.” Id. at
19. Opposer’s website also describes its “AURI Connects Program, which convenes
events to actively engage industry representatives, businesses, commodity groups
and academics across a range of relevant innovation topics,” and whose “goal is to
improve business networks and competitiveness through ongoing, educational,
purposeful connection of clients, resources and partners along the value chain.” Id. at
20. The listed sponsors of one of Opposer’s events are all governments and business.
Id. at 35.
44 All but one of the clients for Opposer’s listed mushroom-, gummy-, and supplement-related
projects was a corporate entity. Schlecht Decl. ¶¶ 26-27 (7 TTABVUE 7-8).

Opposition No. 91292154
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There is no record evidence that the classes of consumers for Opposer’s services
and Applicant’s goods overlap in any meaningful way, and the DuPont factors
regarding channels of trade and classes of consumers strongly support a conclusion
that confusion is not likely with respect to the marks shown in the ’975 and ’051
Registrations.
3. The Fourth DuPont Factor
As noted above, the fourth DuPont factor considers “the conditions under which
and buyers to whom sales are made, i. e. ‘impulse’ vs. careful, sophisticated
purchasing.” DuPont, 476 F.2d at 1361. Opposer argues that
[t]he demographics of consumers for [Opposer’s] services
makes it inevitable that [Opposer’s] consumers will range
from the least to the most sophisticated. Similarly,
Applicant concedes it does not place restrictions—nor does
it intend to place any restrictions—on the class of
consumers to whom it markets goods under [its] Auri
Mark. . . . Given these admissions, and the fact that the
Application contains no limitations on the consumer base,
the Application must therefore cover both sophisticated
and wholly unsophisticated purchasers.
39 TTABVUE 31 (citations omitted).
According to Applicant, “Opposer’s specialized consulting services are marketed
and provided to highly sophisticated consumers who exercise significant care and
attention before making a professional purchasing decision for individualized
services,” 41 TTABVUE 32 (record citation omitted), while purchasers of nutritional
supplements in the form of gummies are “ordinary retail consumers,” id. at 31, and
its “consumers are impulse oriented and are looking for products to improve their
mental clarity.” 42 TTABVUE 32.

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In its reply brief, Opposer argues that it “conducts seminars, podcasts, and other
public outreach” and “provides support to many individuals, entrepreneurs, and
businesses,” and that “[t]here is no evidence in the record to take a restrictive view of
the types of customers for AURI’s services, and indeed no such limitations exist in
the registrations of record in this case.” 44 TTABVUE 14 (citations omitted).
We must base our analysis of the sophistication of the purchasers of the parties’
respective goods and services on the “least sophisticated consumer in the class.” Made
in Nature, 2022 WL 2188890, at *27 (quoting Stone Lion, 746 F.3d at 1325 (internal
quotation omitted)).
With respect to consumers of the services identified in the ’975 and ’051
Registrations, Mr. Schlecht testified about Opposer’s “partnership with farmers,
businesses and entrepreneurs,” Schlecht Decl. ¶ 10 (7 TTABVUE 3), and “our
association with high quality partners making high quality food products,” Schlecht
Decl. ¶ 15 (7 TTABVUE 4), and he identified “prospective industry partners” for
whom Opposer provides “service offerings for bioindustrial capabilities,” “service
offerings for food producers, including meat and food laboratories, food product
evaluation, and analytical chemistry,” and an “online food toolkit to provide food and
beverage entrepreneurs with vital resources, such as starting a business, food
preservation methods, packaging guides, and an e-commerce guide.” Schlecht Decl.
¶¶ 19, 21 (7 TTABVUE 4-5). There is nothing in Mr. Schlecht’s Declaration or
elsewhere in the record to suggest that the least sophisticated potential purchaser of

Opposition No. 91292154
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these specialized agriculture-related services would not exercise care in purchasing
them.
With respect to the consumers of the goods identified in the application, Mr.
Johansen testified that “[b]ased on advertising data, [Applicant’s] consumers are
general retail consumers that purchase our products to improve their personal health
and wellbeing,” Johansen Decl. ¶ 14 (27 TTABVUE 7), and that “[b]ecause our clients
are health conscious and care about their wellbeing, they tend to take time to research
our brand and learn about our products before making a purchase.” Johansen Decl.
¶ 15 (38 TTABVUE 8). He was cross-examined about this testimony, and explained
that the basis for it was that “[w]e speak with customers on a day-to-day basis, and
we can understand what they are like.” Johansen Cross Tr. 57:1-10 (34 TTABVUE
19). Mr. Johansen and Opposer’s counsel engaged in a colloquy regarding such
contacts with customers, and Mr. Johansen acknowledged that he did not know
specific customers that had told him that they researched Applicant’s brand but
believed that he had seen such statements on emails and social media. Johansen
Cross Tr. 57:17-58:23 (34 TTABVUE 19-20).
We assess the sophistication and likely degree of care of the purchasers of goods
or services based on the record evidence, the inherent nature of the goods or services,
and their price. The record shows that nutritional supplements in the form of
gummies may be purchased online, and Applicant’s website provides a considerable
amount of information regarding the nutritional benefits of the goods. Johansen Decl.
Ex. EJV12 (38 TTABVUE 13-17, 20-21, 24-26, 29-56). The Amazon and TikTok

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storefronts similarly provide such information. Johansen Decl. Exs. EJV18-EJV19
(38 TTABVUE 76-95, 113-14, 116-18).
Large bags of Applicant’s nutritional supplements in the form of gummies are sold
on its website for $31.99, Johansen Decl. Ex. EJV12 (38 TTABVUE 15-16, 19, 49-50,
53-59, 62), on Amazon for $40 and $44, Johansen Decl. Ex. EJV18 (38 TTABVUE 86,
92-95), and on TikTok for as little as $27. Johansen Decl. Ex. EJV19 (38 TTABVUE
112-14, 116-17, 119). These are relatively modest prices, but consistent with Mr.
Johansen’s testimony, “[l]ow prices do not necessarily imply a low degree of consumer
care in the selection of dietary supplements where the prospective consumers would
be expected to exercise a reasonable degree of care regarding the products that they
ingest to improve their health.” Inter IKEA, 2014 WL 1827031, at *11 (citation
omitted).
We find that the least sophisticated potential purchaser of Opposer’s services is
likely to exercise at least some degree of care in purchasing them, and that the least
sophisticated potential purchaser of nutritional supplements in the form of gummies
is also likely to exercise “at least a moderate degree of consumer care when
purchasing [such] dietary supplements.” Id. at *12. The fourth DuPont factor is
neutral in our analysis of the likelihood of confusion.
4. Evidence of Actual Confusion
The seventh DuPont factor considers the “nature and extent of any actual
confusion.” DuPont, 476 F.2d at 1361. “[E]vidence of actual confusion is not required
in order to establish likelihood of confusion,” Sabhnani v. Mirage Brands, LLC, No.
92068086, 2021 WL 6072822, at *24 (TTAB 2021) (internal quotation and quotation

Opposition No. 91292154
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marks omitted), but “where it exists, [it] would of course be highly probative of a
likelihood of confusion.” Id. at *22 (quoting Brooklyn Brewery Corp. v. Brooklyn Brew
Shop, No. 91223982, 2020 WL 4673282, at *24 (TTAB 2020), aff’d in relevant part,
vacated in part, 17 F.4th 129 (Fed. Cir. 2021) (citing Edom Labs., Inc. v. Lichter, No.
91193427, 2012 WL 1267961, at *9 (TTAB 2013) (“The existence of actual confusion
is normally very persuasive evidence of likelihood of confusion and undercuts any
possible claim that the marks are so dissimilar that there can be no likelihood of
confusion.”). “Properly introducing instances of actual confusion into the record and
persuading the trier of fact as to the probative value of such evidence is [Opposer’s]
burden.” Brooklyn Brewery, 2020 WL 4673282, at *24.
Opposer argues that “[t]his case is unique in that [it] is able to show ample
evidence of actual confusion between the parties in the marketplace.” 39 TTABVUE
19. According to Opposer, Ms. Voegele “identified at least 102 individual instances of
actual confusion in her trial declaration,” id. (citing Voegele Decl. ¶ 6 (9 TTABVUE
3-7)), and “provided emails, contemporaneous notes of confusion, transcriptions, and
audio recordings.” Id. at 20. Opposer discusses a number of these instances, arguing
that they are “clear evidence that customers and individuals contacted [Opposer]
believing that they had sold the gummies sold by [Applicant] under the identical
trademark Auri.” Id. at 20-22 (record citations omitted). Opposer argues that the
voicemails and emails are not offered to prove the truth of their comments, but rather
“as evidence that the message sender contacted [Opposer] because they mistakenly
believed they were the source of [Applicant’s] goods.” Id. at 22. Opposer concludes

Opposition No. 91292154
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that “[t]he 102 instances of actual confusion identified as of July, 2025 weighs [sic]
heavily and dispositively in favor of” Opposer. Id. at 23.
Applicant has a very different take on this evidence. Applicant argues that
“Opposer’s purported evidence of actual confusion lacks probative value because it is
deeply flawed and reflects mere consumer inattentiveness or carelessness, rather
than true source confusion,” that Opposer’s “evidence does not demonstrate consumer
confusion, rather the misdirected communications are indicative of careless internet
directory mistakes and are de minimis considering Applicant’s high volume of
consumer transactions,” and that “Opposer did not seek testimony from any of the
individual senders, depriving Applicant of the opportunity for cross-examination and
leaving the causation to mere inference.” 42 TTABVUE 33-34.
Applicant claims that only 44 of the alleged 102 instances of actual confusion were
made of record, id. at 34; that “many of the exhibits that were introduced constitute
uncorroborated hearsay that must be accorded no evidentiary weight,” id.; that
“several of the exhibits are either exact duplicates or represent multiple
communications from the same individual,” id. at 35; and that “[o]nce these duplicate
and repetitive inquiries are excluded, Opposer is left with a [sic] only 37 purported
examples of misdirected communications.” Id. at 36. Opposer claims that “[n]otably,
of these remaining 37 instances, more than half—19 separate communications—are
from companies seeking wholesale accounts,” id. at 36, and that “[t]he wholesale
inquiries Opposer relies upon are uniquely prone to extreme inattentiveness because
they are not genuine consumer contacts, but rather blind, mass-solicitation blasts

Opposition No. 91292154
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from third-party resellers.” Id. at 37. As to these specific emails, Applicant concludes
that “[m]ass-marketing spam and botched copy-and-paste form letters from careless
Amazon resellers do not reflect the purchasing decisions of ordinary consumers, and
they entirely fail to prove a legally actionable likelihood of confusion.” Id.
Applicant argues alternatively that “[e]ven if this evidence were fully credited,
misdirected customer service emails and voicemails typically demonstrate mere
consumer inattentiveness rather than legally actionable source confusion.” Id. at 37-
38 (citing Crazy Horse Mem’l Found. v. Spencer, No. 91204980, 2014 WL 976890
(TTAB Feb. 26, 2014 ) (non-precedential) and Tidy Servs., Inc. v. Tidy Techs. Inc., No.
92074987, 2022 WL 17357894 (TTAB Nov. 4, 2022) (non-precedential)).45 Applicant
also argues that Opposer’s evidence
fails because it represents only a small fraction of
consumer interaction. To be meaningful, evidence of actual
confusion must be measured against the total number of
opportunities for confusion. A handful of confused emails
among millions of successful transactions is considered
“trivial.” . . . Here, between May 2025 and September 2025,
Applicant fielded approximately 13,000 consumer
communications a month. . . . This encompassed all types
of customer contacts including phone calls, email
communications, and use of Applicant’s website contact
form. . . . During this same time period, Opposer claims to
have received twenty-four representative misdirected
communications from Applicant’s consumers, primarily
with post-sale related issues. . . . Even if all twenty-four of
these communications were evidence- backed discrete
consumer contacts and put into evidence, they would
constitute approximately 0.0615% of the consumer
45 As discussed above, we are not bound by these non-precedential decisions, but may consider
them for whatever persuasive value they may have. As discussed below, there is sufficient
precedential Board authority regarding actual confusion to make it unnecessary to consider
the cited non-precedential cases.

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communications Applicant received from May 2025 - July
2025.
Id. at 39-40 (citations omitted; emphasis in bold here in italics in Applicant’s brief).
According to Applicant, “[i]n view of Applicant’s extremely high-volume retail
business and the sheer number of consumer communications and sales transactions,
together with the parties’ five years of coexistence, Opposer’s evidence of alleged
confusion is de minimis and trivial.” Id. at 40.
Applicant claims that “[a] commonsense view of the record proves that a small
fraction of Applicant’s consumers are simply querying search engines to find a
customer service number and blindly clicking the wrong link,” id., and cites Ms.
Voegele’s cross-examination testimony regarding a particular email as support. Id.
(citations omitted).
Applicant concludes that
the opposer’s actual confusion argument is fundamentally
defective because it relies on uncorroborated, out-of-court
statements that strip the Applicant of the opportunity for
cross-examination. The misdirected emails and voicemails
are classic examples of consumer carelessness and
indifference, rather than actionable confusion regarding
the source of the goods. The Board should follow its well-
established precedents in Tidy Services and Crazy Horse
and afford this flawed evidence minimal, if any, probative
weight. Accordingly, this factor is neutral.
Id. at 41.46
46 As discussed above, Tidy Services and Crazy Horse are not Board “precedents.”

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Ms. Voegele’s Declaration lists 102 emails and calls between January 2023 and
July 2025, Voegele Decl. ¶ 6 (9 TTABVUE 3-7),47 but she discusses only what she
calls “representative samples of communications received by [Opposer], as well as
[Opposer’s] contemporaneous records to show the nature of the misdirected
communication.” Voegele Decl. ¶¶ 7-50; Exs. PX12-PX55 (9 TTABVUE 7-13).48 In our
evidentiary rulings above, we have excluded Exhibits PX16-PX17, PX43, PX52, and
PX53, but will consider the other emails and voicemail messages that are reflected in
exhibits to the Voegele Declaration as well as her related testimony.49 We note in that
regard that in discovery, Opposer identified Linda LaPlante, Amy Lund, and Lisa
Martinez, but not Ms. Voegele, as “individuals that had responsibility for answering
inquiries from third parties” mentioning Applicant, its mark, or its products. 25
TTABVUE 11 (Opposer’s Resp. to Interrogatory No. 8). None of the identified
individuals testified at trial.
47 On cross-examination, Mr. Schlecht testified that “[w]e’ve had a few instances where
groups have come across or people that we work with have come across Ejec and have asked
if we are working with Ejec or with Auri Nutrition.” Schlecht Cross Tr. 24:1-7 (23 TTABVUE
30). Accepting his vague testimony at face value, such inquiries do not reflect actual
confusion. Sabhnani, 2021 WL 6072822, at *23 (citations omitted).
48 On cross-examination, Ms. Voegele explained the reason for the omission of the other
claimed instances of actual confusion as follows: “I’m sure it was just because there were so
many and they were kind of redundant. At the end there’s a – a – there’s a consistent theme
in terms of where – what people are saying and – and what their confusion is.” Voegele Cross
Tr. 13:24-14:3 (21 TTABVUE 15-16).
49 The text portions of many of the emails were redacted as confidential even though in Ms.
Voegele’s cross-examination testimony about some of these emails, and the voicemail
messages discussed below, she identified the sender or caller by name in the publicly
accessible transcript of her cross-examination testimony. In this opinion, “we will not identify
the companies or individuals involved.” Couch/Braunsdorf Affinity, Inc. v. 12 Interactive,
LLC, No. 92051006, 2014 WL 1390528, at *22 (TTAB 2014).

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a. Emails From Prospective Resellers and Business
Partners
Exhibits PX12-PX14, PX20-PX21, PX23-25, PX27-PX36, and PX38-PX42 are
emails from companies or individuals that state on the face of the emails that the
senders are interested in some sort of business relationship with Opposer.50 Voegele
Decl. Exs. PX12 (seeking a wholesale account to sell unspecified products); PX13
(offering legal placement services for a general counsel search);51 PX14 (seeking to
resell unspecified products); PX20 (seeking to resell unspecified products); PX21
(seeking to resell unspecified products through ecommerce platform); PX23 (seeking
wholesale partnership to resell unspecified products); PX24 (seeking wholesale
account to resell unspecified products); PX25 (seeking wholesale account to resell
unspecified products);52 PX27 (seeking wholesale account to resell unspecified
products); PX28 (“Institution of Massachusetts university,” a “potential buyer of your
products and services,” seeking a price quote for “Quote Oil”); PX29 (“thriving
retailer” seeking “wholesale partnership” to resell unspecified products); PX30
(“fitness establishment” seeking to establish “wholesale accounts for our gym
locations” to sell unspecified products); PX31 (seeking to open a wholesale account
50 Ms. Voegele opined that each such email “appears to be intended for [Applicant]” and that
“[b]ased on the context of this email, the sender believed they were reaching [Applicant].”
Voegele Decl. ¶¶ 7-9, 15-16, 18-20, 22-31, 33-37 (9 TTABVUE 7-11).
51 In response to the email from the headhunter, Mr. Schlecht told the sender that “I think
there might be some confusion as we are not seeking a General Counsel for our organization.
Perhaps confusion with this Auri?” 9 TTABVUE 27. The headhunter responded that “I think
you’re right, I may have the wrong organization.” Id.
52 As noted above, Exhibits PX24 and PX25 were sent by the same wholesaler suitor on
different days.

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and asking to check “which products I can order from you”); PX32 (Amazon retailer
seeking to open a wholesale account to sell unspecified products); PX33 (seeking to
become “an authorized wholesale partner” for unspecified products); PX34 (“online
retail business in California” seeking to establish a wholesale account to resell
unspecified products); PX35 (seeking to set up a wholesale account to resell
unspecified products); PX36 (seeking to purchase unspecified products through
private freight forwarder); PX38 (seeking to purchase unspecified products through
private freight forwarder); PX39 (seeking to purchase unspecified products through
private shipper); PX40 (seeking wholesale account to resell unspecified products on
Amazon); PX41 (seeking to purchase “your product under the Health and Household
category” in bulk orders); and PX42 (seeking to purchase unspecified products in bulk
quantities). 9 TTABVUE 16-31, 44-45, 47-53, 56-57, 60-69, 82-87; 8 TTABVUE 41-42,
58-59, 78-81).
Ms. Voegele was cross-examined about two of these emails. She testified that
Exhibit PX12 was an email from “a representative of” a particular store, Voegele
Cross Tr. 19:18-21 (21 TTABVUE 21), sent to her colleague Ashley Harguth, “so it
was not a direct contact that I had.” Voegele Cross Tr. 13:8-19 (21 TTABVUE 15).53
She described the email’s subject matter “as a company that is looking to set up a
wholesale business with – with purchasing gummies,” Voegele Cross Tr. 13:20-24 (21
TTABVUE 15), but admitted that the email does not mention gummies, Voegele
Cross Tr. 13:25-14:2, 11-12 (21 TTABVUE 15-16), and does not name Applicant.
53 Ms. Harguth did not testify at trial.

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Voegele Cross Tr. 14:23-25 (21 TTABVUE 16). She testified that there was nothing
in the context of this particular email that made her believe that the sender was
trying to reach Applicant, Voegele Cross Tr. 17:3-12 (21 TTABVUE 19), and that
Opposer did not reach out to the sender to determine how the sender got Opposer’s
contact information. Voegele Cross Tr. 17:16-24 (21 TTABVUE 19).
Ms. Voegele described Exhibit PX14 as a request for a wholesale account. Voegele
Cross Tr. 20:5-21:5 (21 TTABVUE 22-23). She acknowledged that the body of the
email did not mention Applicant or “Auri,” Voegele Cross Tr. 21:17-22 (21 TTABVUE
23), and did not mention any specific product that the wholesaler wanted to sell.
Voegele Cross Tr. 22:19-23:11 (21 TTABVUE 24-25). She confirmed that Opposer did
not reach out to the sender to determine how the sender got Opposer’s contact
information. Voegele Cross Tr. 23:12-17 (21 TTABVUE 25).
Almost all of these emails sent by prospective resellers of unspecified products are
generic “form” emails that could be sent to any company regarding resale of any
product, and none of them refers to nutritional supplements in the form of gummies
sold by Applicant. They are all solicitations offering services rather than customer
emails. The Board has long recognized that persuasive evidence of actual confusion
must show confusion as to source or sponsorship, not mere carelessness in attempts
to contact a business. See, e.g., Malt-O-Meal Co. v. Little Crow Milling Co., 1965 WL
6595, at *2 (TTAB 1965) (“The several instances of misdirected mail to which opposer
refers could well have been occasioned by carelessness, inattentiveness or to some
other circumstance, and, since the persons responsible therefor[ ] were not called as

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witnesses for opposer and made subject to cross-examination by counsel for applicant,
it cannot be said that they were in fact occasioned by any similarity between the
marks.”). See also J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 23:14 (5th ed.) (Sept. 2026 update) (“there is the possibility that e-
mails were misdirected by people ‘because they were inattentive or careless, as
opposed to being actually confused.’”) (quoting Therma-Scan, Inc. v. Thermoscan,
Inc., 295 F.3d 623, 636 (6th Cir. 2002)).
It is entirely plausible that these “form” emails were what Applicant called “blind,
mass-solicitation blasts from third-party resellers,” 42 TTABVUE 37, but even
assuming that the senders were only trying to reach Applicant to purchase
nutritional supplements in the form of gummies for resale, we find on this record that
it is more likely than not that they reached Opposer because they searched the
Internet using “Auri,” or a search term containing “Auri,” and selected Opposer’s
website at its auri.org address rather than Applicant’s website at the less intuitive
tryauri.com address.54
In that regard, Applicant submitted under its Second Notice of Reliance what it
described as “search results from April 24, 2025 on the domain www.google.com for
the phrase ‘how to contact auri’,” which Applicant offered to “demonstrate the lack of
actual confusion by relevant consumers.” 26 TTABVUE 3, 15-38; Exs. EJV7-EJV11.
“Google search results are not by themselves admissible under notice of reliance,”
54 As discussed below, Ms. Voegele testified about one voicemail message from a consumer in
which the sender explained that she “googled Auri” and came to Opposer’s website after
having done so. Voegele Cross Tr. 26:8-27:2 (21 TTABVUE 28-29).

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Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., No. 92050879, 2013 WL
5407315, at *10 (TTAB 2013) (citation omitted), and they were not authenticated by
a sponsoring witness who conducted the searches. See id. (overruling objection
because a witness had properly authenticated the results during testimony). But an
objection that matter is not properly submitted under a notice of reliance is a
procedural one that is waived if not promptly asserted, Flame & Wax, 2022 WL
3083070, at *6, and here Opposer never objected to the search results on this ground.
Instead, in its reply brief, Opposer simply states that “[t]hese exhibits are not
supported by declaration, they are simply unsupported screenshots that evidence
nothing relevant in this matter.” 44 TTABVUE 8-9. Accordingly we will consider the
search results for whatever probative value they may have.
In Alcatraz Media, the Board explained that “search results obtained from
GOOGLE have limited evidentiary value due to their truncated nature insofar as the
search summary does not show the context in which the term or phrase is used on
the listed web pages and may not include sufficient surrounding text to provide the
necessary context for the use.” Alcatraz Media, 2013 WL 5407315, at *10. Their
probative value here, however, is not in what the truncated website excerpts show,
but rather simply that links to both Opposer’s and Applicant’s websites appear in
most of the results. 26 TTABVUE 15-38. This strongly suggests that anyone using a
search term containing “auri” to locate Applicant on the Internet would be likely to
have several websites, including auri.org and tryauri.com, from which to choose.

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As Ms. Voegele acknowledged, Opposer did not reach out to the reseller senders
to determine why and how they contacted Opposer, and in the absence of such
information, we cannot infer that they reached Opposer because they actually
believed Opposer to be the source of the products that they wanted to resell rather
than because of carelessness in trying to find Applicant’s email address on the
Internet.55
b. Emails From Consumers
We turn next to the four emails from consumers, Exhibits PX18, PX22, PX26, and
PX51.56 8 TTABVUE 38-39, 46-47, 54-55, 104-05. Exhibit PX18 stated that the
sender’s wife ordered “Super mushroom gummies” but passed away before they were
received, and inquired about returning the product. Id. at 38-39.57 Exhibit PX22
stated that the sender received one open bag of gummies after ordering two bags, and
provided the order number. Id. at 46-47. Exhibit PX26 stated “Please STOP my
subscription. I found out I am allergic to Mushrooms” and “Please respond to my
email so I know you have cancelled this subscription.” Id. at 54-55. Exhibit PX51
55 To the extent that there is confusion resulting from the similarity of Applicant’s
tryauri.com domain name to Opposer’s auri.org domain name, we can offer no remedy.
Confusion occasioned by domain name similarity is beyond the Board’s limited subject matter
jurisdiction unless the registrability of a domain name is at issue, or a domain name is
asserted as a trademark or service mark in an inter partes proceeding, which is not the case
here. Opposer’s remedy, if any, is under other portions of the Trademark Act or the Uniform
Domain Name Dispute Resolution Policy (“UDRP”).
56 As discussed above, Exhibits PX18, PX22, and PX26 had duplicative counterparts in
Exhibits PX52, PX43, and PX53.
57 Ms. Voegele was cross-examined only about Exhibit PX18 and testified that she was not
working for Opposer when it was received, Voegele Cross Tr. 32:9-22 (21 TTABVUE 34), that
it came through Opposer’s website contact form, Voegele Cross Tr. 32:23-33:1 (21 TTABVUE
34-35), and that to her knowledge, no one from Opposer contacted the sender. Voegele Cross
Tr. 34:4-8 (21 TTABVUE 36).

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stated that the sender placed an order and had not yet received it, and provided the
order number. Id. at 104-05.
On cross-examination, Mr. Johansen was examined as follows about how a
dissatisfied customer would reach Applicant:
Q What would a customer do if they had a problem with
an Ejec product?
A Reach out to our customer support.
Q How would they do that?
A Contact us -- website. A form on our website.
Johansen Cross Tr. 30:15-20 (34 TTABVUE 13). He further testified that to use the
contact form, customers have to email Applicant, Johansen Cross Tr. 32:11-14 (34
TTABVUE 13), and that customers receive an order confirmation email. Johansen
Cross Tr. 34:20-22 (34 TTABVUE 14). It appears that most of Applicant’s customers
who want to reach Applicant succeed in doing so, as Mr. Johansen confirmed on cross-
examination the accuracy of his declaration testimony that “[b]ased on data from a
period between May 2 2025 and September 2025, our customer service platform fields
approximately 13,000 customer communications, i.e., phone calls, email
communications, and contact form submissions, each month.” Johansen Cross Tr.
36:1-7 (34 TTABVUE 14).
There is no doubt that the senders of the four emails discussed above were trying
to reach Applicant regarding prior purchases from Applicant of nutritional
supplements in the form of gummies, but the record evidence regarding Opposer’s
receipt of the emails again begs the questions of how and why the senders contacted

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Opposer at auri.org rather than Applicant at tryauri.com. All of the consumer senders
of these emails stated that they had previously purchased nutritional supplements
in the form of gummies from Applicant, but only one reported having received the
product. Mr. Johansen testified that “[t]he vast majority of [Applicant’s] revenue is
derived from direct-to-consumer product sales” and that “[t]hese direct-to-consumer
sales are primarily conducted through the company’s website at https://tryauri.com,
its Amazon storefront, and its TikTok Shop storefront.” Johansen Decl. ¶ 16 (38
TTABVUE 7). He authenticated pages from Applicant’s “Amazon storefront and its
affiliated product listings” and Applicant’s “TikTok Shop storefront.” Johansen Decl.
¶ 17; Exs. EJV18-EJV19 (38 TTABVUE 9, 76-125). As far as we can tell, Applicant’s
website address does not appear on its Amazon or TikTok storefronts or, if it does
appear somewhere, it is not readily visible, and the front of Applicant’s packaging,
shown above and elsewhere in the record, also does not appear to bear Applicant’s
website address or other contact information.58
A consumer who received what Mr. Johansen described as an “order confirmation
email,” Johansen Cross Tr. 34:20-22 (34 TTABVUE 14), might reasonably be expected
to use the email address in that email to contact Applicant, but it is not clear whether
any of the four consumers who emailed Opposer received such an email. In the
absence of readily accessible contact information, the consumers could reasonably be
58 The back of Applicant’s package is not shown in the record; in Applicant’s specimen, the
back of the package is shown while the package is lying flat, making it impossible to see its
contents. October 24, 2022 Application at 7.

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expected to use the Internet as a modern-day online address book to locate Applicant’s
email address.
We again find that it is more likely than not that the four consumer senders of
emails to Opposer reached Opposer because they searched the Internet for “Auri” and
selected Opposer’s website at auri.org. There is again no evidence that Opposer
reached out to any of these consumers to determine why and how they contacted
Opposer, and “without direct testimony from the supposedly confused individuals . .
. there is insufficient evidence to ascertain what they were thinking, or whether they
were actually confused.” Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019
WL 4877349, at *11 (TTAB 2019). “This is not evidence of actual confusion (a
mistaken perception of a purchaser about the source or sponsorship of the goods), and
is entitled to no weight.” Id. We cannot infer that the consumers reached Opposer
because they believed Opposer to be the source of the products that they had
purchased rather than because they were careless in trying to find Applicant’s email
address on the Internet.
c. Voicemail Messages and Summaries of Phone Calls
We turn finally to the voicemail messages and summaries of phone calls, Exhibits
PX15, PX44, PX45, PX46, PX47, PX48, PX49, PX50, PX54, and PX55. PX15 contains
Ms. Voegele’s summary of a call that she received in which she stated that the caller
asked to cancel her gummy subscription. Ms. Voegele testified that the caller “googled
AURI Contact and my info came up,” that “I explained we are a different
organization,” that the caller “said whenever she googles AURI gummies we come up
or retail outlets,” and that “I told her to google AURI nutrition and that worked for

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her.” Voegele Decl. Ex PX15 (8 TTABVUE 33). When asked about this call on cross-
examination, Ms. Voegele responded that the caller “just, according to this, she
googled AURI and my info came up.” Voegele Cross Tr. 26:10-11 (21 TTABVUE 28).
She testified that
[b]ased on this, she googled AURI. She came to our website.
She had to navigate that website to find the Contact Us
section. She went down to the Contact Us section, which
first gives you a popup screen to fill in a form. She,
obviously, navigated away from that and went to the right-
hand margin of that page, saw my name and my e-mail and
my phone number, and she, obviously, wrote that down and
decided to contact me.
Voegele Cross Tr. 26:14-21 (21 TTABVUE 28).
Exhibit PX44 recorded the caller as stating that he “ordered some gummies last
week from oral nutrition and haven’t received them yet” after having paid extra for
shipping. The caller provided his telephone number. 8 TTABVUE 91.
Exhibit PX45 recorded the caller as stating that he was calling regarding an order
with a specific number. The caller also provided his telephone number for a return
call. Id. at 93.
Exhibit PX46 recorded the caller as stating that she was trying to order only one
package online and that she could only order a subscription, which she did not want.
The caller left her telephone number and requested a return call. Id. at 95.
Exhibit PX47 recorded the caller as saying that he ordered a product and received
it the first time but not the second. The caller left his telephone number and requested
a return call. Id. at 97.

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Exhibit PX48 recorded the caller as saying that he got a message “from you about
something happening with my payment.” The caller left his telephone number and
requested a return call. Id. at 99.
Exhibit PX49 recorded the caller as saying that she requested overnight shipping
of two products but got a confirmation email stating that delivery would be later. She
left her confirmation number and telephone number. Id. at 101.
Exhibit PX50 recorded the caller as saying that “This number I’m trying to contact
Origami is this number is leading me to you” and that he hadn’t received his order.
He left his name and telephone number. Id. at 103.
Exhibit PX54 recorded the caller as stating that “I have sent you several emails
saying that I want to quit my SU subscription to already Gumby’s and I just got
another order today. I have stacks of them and I’m gonna return them. I asked to be
refunded and stopped by a month ago and no one has stopped it” and that “Please
stop all contacts or I will get a lawyer because they keep coming and stacking up.”
The caller left her address and telephone number. Id. at 111.59
Exhibit PX55 recorded the caller as stating that “the order number that i did not
order was 834169 and i’ve already sent all kind of things trying to cancel all this and
i want it cancelled i don’t want anymore.” The caller left her telephone number and
requested a text message confirming cancellation. Id. at 113.
59 Mr. Johansen was shown this transcription on cross-examination and testified that he did
not know what was meant by the phrase “SU subscription.” Johansen Cross Tr. 68:18-20 (34
TTABVUE 22).

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In addition to Exhibit PX15, Ms. Voegele was cross-examined about Exhibits PX50
and PX54. Voegele Cross Tr. 34:19-42:8 (21 TTABVUE 41-44)60. She testified that she
did not contact the caller in PX50 and did not know if anyone else at Opposer had
done so. Voegele Cross Tr. 38:9-15 (21 TTABVUE 40). She also testified that “I get
the bulk of the calls” and that “[i]t seems I -- every time, I -- I don’t return the
voicemails because there’s so many.” Voegele Cross Tr. 42:20-22 (21 TTABVUE 44).
She claimed that
I get at least one call a day, but if I pick up the phone and
I am talking to someone, I do try to explain that they’ve
reached the wrong company, and I try to be helpful because
I don’t want any negative association that they have
already with the gummy company to be reflective of us,
because we are also named AURI. I want them to come
away, thinking, well, I got the wrong AURI, but at least
those folks were nice and were trying to help me. So I do
try to redirect them. I tell them what I’ve heard from other
customers, that sometimes, because there is no phone
number available and the e-mail doesn’t seem to work, that
they can try calling their credit card company to dispute
the charge and have them work it from their end. So I do
try my best to help them when I -- when I get them on the
phone, but I don't have the time to go and return all the
voicemails I get. I let those go.
Voegele Cross Tr. 42:22-43:14 (21 TTABVUE 44-45).
She also testified that
[t]here was one lady who left me a voicemail who just
sounded so distraught that I did call her back, actually, to
tell her. I felt bad for her, and so I made sure she knew she
hadn’t gotten the right number. There was another lady
who I accidentally -- I guess she was in my phone and I
somehow dialed her by accident, and I was like, oh, no, kind
60 We have discussed most of her testimony regarding Exhibits PX51 and PX54 in our
evidentiary ruling above on Applicant’s Best Evidence Rule objection.

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of thing, you know? And then she answered and she said,
oh, I was expecting your call, and, you know, because she
recognized my name because it came up on her phone, and
so I talked to her, and again, just explained the situation.
So a couple of times I have reached out, yep.
Voegele Cross. Tr. 44:25-45:14 (21 TTABVUE 46-47). There is no documentation in
the record, such as call notes, corroborating Ms. Voegele’s testimony that she gets “at
least one call a day,” or that “a couple of times I have reached out, yep.”
There is again no doubt that the callers were trying to call Applicant, but we are
again confronted with the issue of why they called Opposer instead. Mr. Johansen
testified on cross-examination that the contact form on Applicant’s website does not
contain a telephone number, and that he was not sure that a telephone number
appeared elsewhere on the site, Johansen Cross Tr. 32:3-10 (34 TTABVUE 13), and,
as discussed above, Applicant’s packaging and the websites of its two primary
resellers also do not appear to provide Applicant’s telephone number. Ms. Voegele
confirmed that Opposer has done no formal investigation of the calls and emails,
Voegele Cross Tr. 44:13-17 (21 TTABVUE 46), and the only evidence in the record
explaining exactly why a caller called Opposer rather than Applicant is the voicemail
from the caller who said that she had “googled AURI Contact and my info came up.”
Voegele Cross Tr. 26:10-11 (21 TTABVUE 28).
We find this to be the most plausible explanation for all of the misdirected
voicemail messages. Many of the callers had received at least one package of
Applicant’s nutritional supplements in the form of gummies and could reasonably
have been expected to refer, in the first instance, to the package for Applicant’s
contact information, including a telephone number, but it does not appear that such

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contact information is available. In the absence of such information on the package
(or in the absence of the package itself), the logical next step is one familiar to
everyone who owns a mobile phone—to use the Internet as a modern-day online
telephone directory.
Exhibit PX15, Ms. Voegele’s summary of the call that she received in which she
stated that the caller asked to cancel her gummy subscription, indicates that the
search term used in a search of that telephone directory makes a difference.
According to Ms. Voegele, using “AURI gummies” caused a consumer to reach
Opposer, while using “AURI nutrition” caused the same consumer to reach Applicant.
Voegele Decl. Ex PX15 (8 TTABVUE 33). As discussed above, Applicant’s own Google
searches for “how to contact auri” disclosed both websites. Investigation of the website
identified in response to the “AURI gummies” search referenced in Exhibit PX15
would have revealed that Opposer was not the source of the gummies because
Opposer does not “sell any products,” Voegele Cross Tr. 31:12 (21 TTABVUE 33), but
such an investigation was apparently never made.
There is again “insufficient evidence to ascertain what [the callers] were thinking,
or whether they were actually confused.” Double Coin Holdings, 2019 WL 4877349,
at *11. On this record, we cannot infer that the callers reached Opposer because they
believed Opposer to be the source of the gummies that they had purchased rather
than because they were careless in trying to find Applicant’s telephone number on
the Internet.

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d. Summary of Actual Confusion Evidence
Opposer claims that the “instances of actual confusion identified as of July, 2025
weighs [sic] heavily and dispositively” in its favor, 39 TTABVUE 23, and the record
does contain a large number of emails and calls that might appear at first blush to
show actual confusion. The Board has observed that the Federal Circuit has
suggested that in the context of large numbers of third-party marks under the sixth
DuPont factor, “quantity has a quality all its own,” Cielo e Terra, 2026 WL 2624328,
at *20, but that principle does not extend to instances of actual confusion under the
seventh factor. Although even a single clear instance of actual confusion may be
potent evidence of likelihood of confusion, “evidence of actual confusion ‘is too
important to be established by means of an inference, unsupported by corroborating
evidence.’” Couch/Braunsdorf Affinity, 2014 WL 1390528, at *26 (quoting Toys “R”
Us, Inc. v. Lamps R Us, No. 91065977, 1983 WL 50152, at *8 (TTAB 1983)).
The number of misdirected emails and calls here is substantial, but in this context
quantity does not have a quality all its own. On this record, the contacts are at least
equally consistent with inattention and carelessness on the part of the senders and
callers in using the Internet to locate Applicant as they are with the actual mistaken
belief that Opposer sells Applicant’s gummies, and Ms. Voegele’s summary in Exhibit
PX15 of her call with a consumer who asked to cancel her gummy subscription
supports only the former explanation, not the latter one.
Opposer had the burden of “persuading the trier of fact as to the probative value
of [this] evidence,” Brooklyn Brewery, 2020 WL 4673282, at *24, and the means and
opportunity to contact email senders and callers to gather evidence to carry that

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burden, but it did not do so. The evidence has limited probative value and does not
support a finding of actual confusion. The seventh DuPont factor is neutral in our
analysis of the likelihood of confusion.
5. Balancing the DuPont Factors
“The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there has been evidence and argument; ‘explain the results of that
weighing;’ and discuss ‘the weight [we] assigned to the relevant factors.’” In re
Jimenez, No. 97551823, 2025 WL 3126703, at *8 (TTAB 2025) (quoting In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023)). “No mechanical rule determines
likelihood of confusion, and each case requires weighing of the facts and
circumstances of the particular mark.” Id. (quoting In re Mighty Leaf Tea, 601 F.3d
1342, 1346 (Fed. Cir. 2010)). “‘The weight afforded to each factor depends on the
circumstances’ and ‘any single factor may control a particular case.’” Id. (quoting
Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 998 (Fed. Cir.
2020)).
Here, the key first and second DuPont factors point us in different directions.
Under the first factor, we have found that the parties’ marks are similar, and this
factor thus strongly supports a conclusion that confusion is likely. Under the second
factor, we have found that the parties’ goods and services are unrelated, and this
factor thus strongly supports the opposite conclusion that confusion is unlikely.
Under the third factor, we have similarly found that the channels of trade and classes
of consumers for the parties’ goods and services do not overlap, and the lack of overlap
also strongly supports a conclusion that confusion is unlikely. The fourth factor and

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the seventh factor, the one that Opposer claims is dispositive, 39 TTABVUE 23, are
neutral.
“[T]he ‘similarity or dissimilarity of the marks in their entireties’ is a predominant
inquiry,” Heil Co., 2024 WL 4925901, at *29 (quoting Herbko, 308 F.3d at 1165), and
a finding that marks are similar is a necessary, but not sufficient, prerequisite to
every conclusion that confusion is likely. The similarity of the marks alone, however,
cannot establish likelihood of confusion if the involved goods and services, channels
of trade, and classes of consumers are sufficiently distinct. See, e.g., M2 Software, Inc.
v. M2 Commc’ns, Inc., 450 F.3d 1378, 1385 (Fed. Cir. 2006) (“because the DuPont
factors favoring [the applicant], i.e., the unrelated nature of the parties’ goods and
the fact that the marks are used in different channels of trade and with respect to
different purchasers outweigh the factors favoring [the opposer], i.e., the similarity of
the marks and the fanciful nature of its mark, the board properly found that confusion
was not likely”); Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed.
Cir. 1984) (affirming summary judgment of no likelihood of confusion based on the
dissimilarity of the parties’ goods); cf. St. Helena Hosp., 747 F.3d at 755 (although the
Board properly found that the marks TAKETEN and TAKE TEN! were similar,
“substantial evidence [did] not support the PTO’s refusal to register . . . given the
dissimilarities in the respective services and goods and the high degree of consumer
care”).
Although the marks are similar, we conclude that confusion is unlikely because
the parties’ respective goods and services have not been shown to be related, and they

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are not offered through overlapping channels of trade to overlapping consumers. On
this record, the second and third DuPont factors outweigh the first DuPont factor,
and we find that Opposer has not shown, by a preponderance of the evidence, that
confusion is likely.
Decision: The opposition is dismissed.