HighRoad Services, LLC

Mailed: October 16, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re HighRoad Services, LLC.
————
Serial No. 98586837
————
Kyle B. Straughan and Allia V.M. Howard of Holland & Knight LLP,
for HighRoad Services, LLC.
Yatsye I. Lee, Trademark Examining Attorney,
Leslie Bishop, Managing Attorney, Law Office 107.
————
Before Wellington, Allard, and Stanley,
Administrative Trademark Judges.
Opinion by Wellington, Administrative Trademark Judge:
HighRoad Services, LLC (“Applicant”) seeks registration on the Principal Register
of the mark:1
1 Application Serial No. 98586837, filed June 5, 2024, based on an allegation of first use of
the mark anywhere and in commerce on April 25, 2024, under Trademark Act Section 1(a),
15 U.S.C. § 1051(a). The application contains the following description of the mark: “The
mark consists of a stylized ‘H’ above the stylized word ‘HIGHROAD’ above the stylized words
‘PAVEMENT SERVICES.’”
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 98586837
2
for the following services in Class 37:
Pavement marking services; Pavement sealing; Pavement striping;
Pavement stripping; Paving contractor services; Application of coatings
and sealers; Clearing and cleaning gutters; Construction services, namely,
asphalt paving; Construction services, namely, concrete paving;
Construction services, namely, concrete paving, site clearing, excavation,
pad preparation, grading, and asphalt paving services; Installation and
maintenance of traffic control apparatus; Maintenance of traffic control
equipment; Road paving.
Applicant has disclaimed the words PAVEMENT SERVICES.
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Trademark Act (“the Act”) Section 2(d), 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion based on the registered standard character mark BUILDING
THE HIGH ROAD for “Construction services, namely, excavation; Construction
services, namely, site clearing; General construction contracting; Installation of
irrigation systems; Installation of utilities in construction sites; Pipeline
construction; Road construction,” in Class 37.2
After the Examining Attorney made the refusal final, Applicant requested
reconsideration and filed an appeal. The Examining Attorney denied the request for
reconsideration and the appeal resumed. Both Applicant and the Examining Attorney
filed briefs, including Applicant’s reply brief. For the reasons explained below, we
affirm the refusal.
2 Registration No. 6930767 issued on the Principal Register on December 20, 2022. The
registration also identifies other services in Class 44, which do not form a basis for the
refusal.

Serial No. 98586837
3
I. Likelihood of Confusion
Section 2(d) of the Act, in relevant part, prohibits registration of a mark that “so
resembles a mark registered in the Patent and Trademark Office … as to be likely,
when used on or in connection with the [services] of the applicant, to cause
confusion …” 15 U.S.C. § 1052(d). To determine whether confusion is likely, we
analyze all probative evidence relevant to the factors set out in In re E. I. du Pont de
Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). See In re Majestic
Distilling Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003).
In every Section 2(d) case, two key DuPont factors are the similarity or
dissimilarity of the marks and the relatedness of the respective goods or services,
because the “fundamental inquiry mandated by § 2(d) goes to the cumulative effect
of differences in the essential characteristics of the goods [or services] and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103
(CCPA 1976). Here, we have considered each DuPont factor that is relevant and for
which there is evidence and argument of record. See In re Guild Mortg. Co., 912 F.3d
1376, 1379 (Fed. Cir. 2019).
Varying weight may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed.
Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 1206 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination.”). Ultimately, however, “[e]ach case must be decided on its own facts
and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d
1197, 1199 (CCPA 1973).

Serial No. 98586837
4
A. Legal Identity of the Services and Presumed Overlap in the
Channels of Trade
We first look to the second and third DuPont factors, which concern the
relatedness of the services and the channels of trade for the services. DuPont, 476
F.2d at 1361. In this analysis, we must consider the services as they are identified in
Applicant’s application and the cited registration. See Stone Lion Cap. Partners, L.P.
v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v.
Houston Comp. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990)). Further, it is sufficient
for a finding of likelihood of confusion as to a class of services in the application if
relatedness is established for any one of the recited services within the application.
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981).
Here, Applicant’s “road paving” and other “construction services” such as
“concrete paving, site clearing, excavation, … grading, and asphalt paving” are
encompassed by Registrant’s “road construction” services.3 In other words,
constructing a road necessarily includes these preparation and final steps, e.g.,
paving with asphalt or concrete. The evidence corroborates this—for example, in
describing its “interstate highway construction” project in Baltimore, Maryland, the
Milani Construction company states that this involves “31,000 tons of asphalt
3 The services are also identical in that the application identifies “Construction services,
namely, … site clearing, excavation” and the cited registration identifies “Construction ser-
vices, namely, excavation; Construction services, namely, site clearing.” Thus, they both spe-
cifically identify “site clearing” and “excavation” as part of their construction services.

Serial No. 98586837
5
paving.”4 The services are thus legally identical in that Registrant’s “road
construction” includes Applicant’s “road paving.” New Era Cap Co. v. Pro Era, LLC,
No. 91216455, 2020 TTAB LEXIS 199, at *39-40 (“Caps” as identified in the
application is broad enough to encompass all types of caps, including “athletic caps”
identified in Opposer’s registration, rendering the parties’ goods in-part legally
identical.); In re Hughes Furniture Indus., Inc., No. 85627379, 2015 TTAB LEXIS 65,
at *10 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’
necessarily encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”).
Because these services are described in the application and cited registration
without any restriction or limitation, we must presume that these legally identical
services will be offered to the same classes of consumers in the same trade channels.
In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (even though there was no
evidence regarding channels of trade and classes of consumers, the Board was
entitled to rely on this legal presumption in determining likelihood of confusion); see
also Genesco Inc. v. Martz, No. 91121296, 2003 TTAB LEXIS 123, at *28 (“Given the
in-part identical and in-part related nature of the parties’ goods, and the lack of any
restrictions in the identifications thereof as to trade channels and purchasers, these
4 Screenshots from Milani Construction website attached to Office Action issued February
24, 2025, TSDR pp. 3-4. Citations to the prosecution file refer to the USPTO's Trademark
Status & Document Retrieval (“TSDR”) system and identify the documents by title, date, and
page in the downloadable .pdf version.

Serial No. 98586837
6
clothing items could be offered and sold to the same classes of purchasers through the
same channels of trade.”).
Applicant argues that “Registrant is a general contractor for land developers, and
a private landscape designer serving private homeowners” and that “Applicant, on
the other hand, is not a general contractor, and does not specialize in landscape
design.”5 Specifically, Applicant argues that it “focuses on pavement services,
including but not limited to, asphalt paving & patching, concrete installation &
repair, pavement milling, sealcoat & crack seal, traffic control, striping, serving
government agencies, utility and telecommunications companies, property managers,
and contractors, rather than individual homeowners.”6
These arguments, however, are not persuasive because, as noted, the services in
the application and registration are not so limited. Applicant may not restrict the
scope of the services covered in the application or the cited registration by argument
or extrinsic evidence. Stone Lion, 746 F.3d at 1323 (“It was proper, however, for the
Board to focus on the application and registrations rather than on real-world
conditions ....”); Octocom, 918 F.2d at 942 (“The authority is legion that the question
of registrability of an applicant’s mark must be decided on the basis of the
identification of [the services] set forth in the application regardless of what the
record may reveal as to the particular nature of an applicant’s [services], the
5 6 TTABVUE 20. Citations in this opinion to the briefs and other materials in the case docket
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.
6 6 TTABVUE 20.

Serial No. 98586837
7
particular channels of trade or the class of purchasers to which the sales of [services]
are directed.”).
In addition to the involved services encompassing one another and thus being
legally identical, we take note of the Examining Attorney’s evidence showing that the
services involved are also the kinds of services that are frequently offered by a single
entity. In her brief, the Examining Attorney provided a summary of printouts from
more than twenty third-party websites offering such services.7 The Examining
Attorney also provided a list of twelve third-party, use-based registrations for marks
covering both Applicant’s and the Registrant’s services.8 This evidence, taken
together, demonstrates that Applicant’s and Registrant’s services are closely related
because they may be offered under the same mark by a single entity. In re Country
Oven, Inc., No. 87354443, 2019 TTAB LEXIS 381, at *5-6 (evidence of relatedness
may include advertisements showing that services are advertised together or offered
by the same company or copies of use-based registrations of the same mark for both
the services of the application and cited registration).
Accordingly, because of the in-part legal identity of the services, as well as the
presumed overlap in trade channels, and the otherwise demonstrated close
relationship between the services, the second and third DuPont factors weigh
strongly in favor of finding confusion likely.
7 8 TTABVUE 10-11 (summary in Examining Attorney’s brief); printouts from websites
attached to Office Actions issued on February 24, 2025 and February 17, 2026.
8 8 TTABVUE 12-13; copies of the registrations attached to Office Action issued on July 7,
2025.

Serial No. 98586837
8
B. Comparison of the Marks
We turn now to the first DuPont factor, which focuses on the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation,
and commercial impression. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondée en 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005) (quoting DuPont, 476
F.2d at 1361). Similarity as to any one of these elements may be sufficient to support
a finding that the marks are confusingly similar. See Krim-Ko Corp. v. Coca-Cola 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.”); accord In re Inn at St. John’s,
LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13, aff’d mem., 777 F. App’x 516 (Fed.
Cir. 2019).
With regard to Applicant’s mark, , it is clearly visually
dominated by the literal term HIGHROAD. The term appears prominently in the
center of the mark in a significantly larger font. HIGHROAD also plays a primary
role in creating the overall mark’s commercial impression and is most likely to be
recalled by consumers. That is, the other wording, PAVEMENT SERVICES, not only
appears in smaller plain font below, but this wording is also generic for Applicant’s
“pavement services” and has minimal trademark significance. Although disclaimed
matter is not entirely removed from consideration when comparing the marks,
certain elements of marks may play a less important role in distinguishing them from
others and disclaimers of merely descriptive or generic terms “constitute rational

Serial No. 98586837
9
reasons for giving those terms less weight in the analysis.” See In re Detroit Athl. Co.,
903 F.3d 1297, 1305 (Fed. Cir. 2018) (citing In re Dixie Rests., 105 F.3d 1405, 1407
(Fed. Cir. 1997) (finding DELTA the dominant part of the mark THE DELTA CAFE,
in part because the generic word CAFE was disclaimed)). The non-source identifying
nature of PAVEMENT SERVICES and the disclaimer thereof constitute rational
reasons for giving these terms very little weight in our analysis. Detroit Athl., 903
F.3d at 1305.
As to the stylized H design at the top of the mark, it is the initial letter and thus
helps emphasize the term HIGHROAD; this portion of the mark is stylized such that
the parallel side lines of the “H” converge much like a highway that runs to the
horizon and, as a result, reinforce the road construction nature of the services offered.
When a mark such as Applicant’s consists of a literal portion with a design portion,
the literal portion usually is more likely to be impressed upon a purchaser’s memory
and to be used in calling for the services; therefore, the literal portion normally is
accorded greater weight in determining whether marks are confusingly similar. In re
Ox Paperboard, LLC, No. 87847482, 2020 TTAB LEXIS 266, at *12-13 (citations
omitted). For these reasons and as discussed, the design is not likely to distinguish
the marks in the minds of consumers as they will focus on the more dominant literal
element, HIGHROAD.
We also keep in mind that when marks have clearly dominant elements, such is
the case here with HIGHROAD in Applicant’s mark, there is a “penchant of
consumers to shorten marks” and, when calling for the services, “it is reasonable that

Serial No. 98586837
10
such a practice would lead many consumers to drop the highly descriptive/generic
term[s]” in marks. In re Bay State Brewing Co., Inc., No. 85826258, 2016 TTAB
LEXIS 46, at *9 (holding consumers calling for TIME TRAVELER BLONDE beer
may drop the disclaimed term BLONDE). In other words, it would not be
unreasonable for consumers to simply call for or refer to Applicant’s services as
HIGHROAD, rather than taking the time to verbalize the entirety of the mark and
describing the highly stylized H.
As to the cited registered mark, BUILDING THE HIGH ROAD, this is a phrase
which is strongly suggestive of Registrant’s services that, as discussed, include “road
construction.” At the same time, we acknowledge the possible double entendre within
this phrase based on the multiple meanings of the term “high road,” which include:
“highway” or “the easiest course” or “an ethical course.”9 In other words, the cited
mark may be taken literally in the aforementioned suggestive manner. And, at the
same time, the mark has a figurative quality and may evoke the creation of an easier
or ethical path. Thus, as understood in either manner, the wording HIGH ROAD
plays a strong role in the mark’s overall commercial impression and meaning.
In comparing the two marks, we find them to be very similar visually and aurally
based on the shared term HIGHROAD or HIGH ROAD. Despite Applicant’s
9 “High Road.” Merriam-Webster.com Dictionary, www.merriam-webster.com/dictionary;
Accessed 8 Oct. 2026. Univ. of Notre Dame du Lac v. J. C. Gourmet Food Imps. Co., Inc., No.
91061847, 1982 TTAB LEXIS 146, at *7 (Board may take judicial notice of dictionary
definitions), aff’d, 703 F.2d 1372 (Fed. Cir. 1983); Productos Lacteos Tocumbo S.A. de C.V. v.
Paleteria La Michoacana Inc., No. 92047438, 2011 TTAB LEXIS 164, at *43 n.61 (Board may
take judicial notice of information from encyclopedias).

Serial No. 98586837
11
argument, we find the lack of space between these otherwise identical words is not
material and we have long rejected this contention in past decisions.10 Adding or
deleting a space usually does not change a mark’s commercial impression, and this
case is no exception.
In addition, the possible figurative meaning that consumers may perceive in the
registered mark is also present in Applicant’s mark. That is, consumers encountering
Applicant’s mark, may also understand the highly visible and dominant term
HIGHROAD as alluding to an easier or ethical course, or literally as suggesting a
highway that may be in need of Applicant’s pavement services.
In sum, we conclude that the marks are overall very similar and this DuPont
factor weighs in favor of a conclusion that confusion is likely.
C. Alleged Weakness of the Cited Mark
Following up on our comparison of the marks and finding of similarity based on
the shared term HIGHROAD or HIGH ROAD, we address the issue of alleged
weakness of the cited mark.
Under the sixth DuPont factor, we consider “[t]he number and nature of similar
marks in use on similar goods [or services].” DuPont, 476 F.2d at 1361. Thus,
Applicant in this case may adduce such probative evidence and demonstrate that a
10 See, e.g., Mini Melts, Inc. v. Reckitt Benckiser LLC, No. 91173963, 2016 TTAB LEXIS 151,
at *5 (“The absence of a space in Applicant’s mark MINIMELTS does not meaningfully
distinguish it from Opposer’s mark [MINI MELTS].”); In re Iolo Techs., LLC, No. 77399654,
2010 TTAB LEXIS 223, at *2 (“The only difference is that applicant’s mark [ACTIVECARE]
is a single compound word, while registrant’s mark [ACTIVE CARE] is two words. We find
this difference to have no trademark significance. The two words retain the same meanings
when joined as a compound.”).

Serial No. 98586837
12
cited mark, or element thereof, has less source-identifying significance. “Evidence of
third-party use of similar marks on similar goods [or services] is relevant to show that
a mark is relatively weak and entitled to only a narrow scope of protection.” Apex
Bank v. CC Serve Corp., 156 F.4th 1230, 1235 (Fed. Cir. 2025) (quoting Palm Bay
Imps., 396 F.3d at 1373). “When a field is crowded with similar marks, the theory is
that customers will be more adept at distinguishing marks from each other and are
less likely to be confused by similar marks.” Id. (citing Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 1338 (Fed. Cir. 2015)). In other words, sufficient
probative evidence of third-party use may indicate that consumers are conditioned to
distinguish between marks based on otherwise less meaningful differences between
the marks. Third-party use evidence, as well as third-party registrations, may also
show that a term has a “normally understood and well-recognized descriptive or
suggestive meaning.” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1363 (Fed. Cir. 2023)
(citations omitted; internal quotation marks omitted). Such evidence “can bear on a
mark’s conceptual strength.” Id.
Here, Applicant argues that any similarity in the marks based on the shared term
HIGHROAD or HIGH ROAD has little significance because that term “is less likely
to be perceived as source-distinguishing because it leans non-distinctive and
diluted.”11 Specifically, Applicant argues that there is an “inherent non-distinctive
nature of the term ‘high road’ in relation to the pertinent services based on its well-
known meaning,” because “‘[t]ake the high road’ or ‘the high road’ is a well-known
11 6 TTABVUE 16.

Serial No. 98586837
13
idiom, meaning to behave in a moral way or to take a more honorable or ethical course
of action.”12 Applicant asserts that the differences between the marks, “when
considered in light of the idiomatic meaning of the term, are sufficient to avoid any
perceived likelihood of confusion.”13
In support, Applicant relies on its evidence of third-party uses and registrations
arguing this shows that “the term HIGH ROAD (or HIGHROAD) is commonly used
in connection with construction and related services.”14 Applicant submitted copies of
two registrations:15
• HIGH ROAD HOMES (Reg. No. 7743718) for “custom construction of homes.”16
• WE DON’T JUST TAKE THE HIGH ROAD, WE BUILD THEM (Reg. No.
6322836) for “consulting services in the field of soil erosion control and
stabilization and dust suppression and dust control.”17
Applicant also submitted screenshots from the following five websites:18
• “High Road Construction” (www.highroadconst.com), home construction
services advertised as “enhancing your living spaces through expert
craftsmanship”.19
12 6 TTABVUE 17.
13 6 TTABVUE 17.
14 6 TTABVUE 18.
15 Copies of registrations attached to Applicant’s request for reconsideration filed on January
7, 2026. Applicant also submitted a copy of an application for the mark HIGH ROAD
PLUMBING (Ser. No. 99480779) for “plumbing services.” For purposes of the
sixth DuPont factor, third-party applications are evidence only of the fact that they have been
filed and, thus, have very little probative value. Made in Nature, LLC v. Pharmavite LLC,
No. 91223352, 2022 TTAB LEXIS 228, at *31 (citations omitted).
16 Issued on April 1, 2025.
17 Issued on April 13, 2021.
18 Website screenshots attached to Applicant’s request for reconsideration filed on January
7, 2026.
19 Request for reconsideration filed on January 7, 2026, at TSDR pp. 35-36.

Serial No. 98586837
14
• “High Road Construction” (www.highroadconstruction.com), describing the
company as a “certified general contractor in the State of Florida that
specializes in new luxury homes, new additions, and major renovations to
luxury homes.”20
• “Highroad Construction Services, LLC” (www.highroadcs.com), touting itself
as “experienced builders ready to take on any challenge, big or small,” but
screenshots do not contain any specific description of services.21
• “High Road Construction LLC” (www.highroadconstruction.net), advertising
“Your Storm Restoration Experts … roofing, siding, gutters, and insurance
claims done right.”22
• “High Road Construction” (www.highroadconstruction.us), advertising “make
any improvements to your property from a simple upgrade to adding entire
additions to your home or business.”23
The third-party usage and registration evidence does not help demonstrate that
the shared term HIGHROAD or HIGH ROAD is weak because the registrations and
websites pertain to unrelated services, such as home construction, home repair, or
soil erosion services. Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d
1315, 1325 (Fed. Cir. 2018) (error to rely on third-party evidence of similar marks for
dissimilar goods or services, as Board must focus “on goods [or services] shown to be
similar”). Applicant’s weakness evidence and argument are based on an overly broad
interpretation of “construction services,” and the evidence fails to show consumers
have become accustomed to encountering use of that term in the context of road
20 Request for reconsideration filed on January 7, 2026, at TSDR pp. 37-39.
21 Request for reconsideration filed on January 7, 2026, at TSDR pp. 40-41. Applicant
describes this company in its brief (at 6 TTABVUE 19) as being involved in “concrete and
pavement services”; however, this is not evident from the screenshots provided.
22 Request for reconsideration filed on January 7, 2026, at TSDR pp. 42-43.
23 Request for reconsideration filed on January 7, 2026, at TSDR p. 44.

Serial No. 98586837
15
construction and pavement services. Put simply, the evidence of third-party use and
registrations pertains to construction services that are quite different from the
relevant construction services in this appeal.
However, we find that based on the plain or literal meaning of the cited mark,
BUILDING THE HIGH ROAD, it is suggestive of Registrant’s road construction
services and thus bears some inherent weakness. At the same time, we must keep in
mind that Registrant’s mark is registered on the Principal Register without a claim
of acquired distinctiveness and is thus presumed to be inherently distinctive.
Trademark Act Section 7(b), 15 U.S.C. § 1057(b); see also Tea Bd. of India v. Republic
of Tea, Inc., No. 91118587, 2006 TTAB LEXIS 330.
However, as to Applicant’s assertion that the cited mark is weak because it evokes
the idiom of ‘taking the high road,’ suggesting an honorable or correct course of action,
we disagree. Indeed, as explained in the similarity of the marks section above, this
suggestive connotation actually brings the marks closer in terms of similarity. That
is, both Applicant’s HIGHROAD PAVEMENT SERVICES, with design, and the cited
mark, BUILDING THE HIGH ROAD, may be understood by consumers as a play on
the idiom, particularly given that the application and cited registration include
services such as paving and constructing roads. Thus, the same double entendre – a
play on the idiom and a literal reference to road construction and road pavement
services – is present in both marks. We find no weakness here based on use of the
idiom as there is no evidence of third-party use of marks projecting the same double
entendre in connection with road construction or road pavement services.

Serial No. 98586837
16
In sum, there is some inherent weakness in the cited mark given its literal
meaning and the services described in the registration. However, we are not
persuaded by Applicant’s evidence and ultimately disagree with Applicant’s
contention that the cited mark, BUILDING THE HIGH ROAD, is commercially weak
or diluted. Furthermore, we find no weakness based on consumer perception that
each mark plays on the idiom of ‘taking the high road.’
Accordingly, the sixth DuPont factor weighs slightly against a finding that
confusion is likely in our analysis.
D. Coexistence of Marks Without Actual Confusion
Under the seventh and eighth DuPont factors, we consider the nature and extent
of actual confusion, if any, in light of the length of time and conditions under which
there has been contemporaneous use of the subject marks. DuPont, 476 F.2d at 1361.
Generally, the absence of any reported instances of confusion is meaningful only if
the applicant provides contextual evidence that allows the Board to meaningfully
assess the length of time and degree to which the applicant’s and Registrant’s
commercial activities would have provided an opportunity for confusion to have
manifested itself if it were likely. In re Embiid, No. 88202890, 2021 TTAB LEXIS
168, at *53-55 (citing In re Guild Mortg. Co., No. 86709944, 2020 TTAB LEXIS 17, at
*17-19; Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019 TTAB LEXIS 347,
at *26-28.
Applicant asserts in its application that it first used its mark on April 25, 2024.
Applicant argues that “[a]s there has been reasonable time for confusion to occur, and

Serial No. 98586837
17
it has not, this factor weighs in favor of an unlikelihood of confusion.”24 We disagree,
and find that this is not an extensive period of alleged coexistence, and we have no
evidence of whether the extent and circumstances of Applicant’s and Registrant’s
uses of the respective marks were such as to give rise to meaningful opportunities for
actual confusion to occur. In re Kangaroos U.S.A., No. 319021, 1984 TTAB LEXIS 77,
at *6-7. Moreover, “uncorroborated statements of no known instances of actual
confusion are of little evidentiary value.” Majestic Distilling, 315 F.3d at 1317.
In view thereof, the seventh and eighth DuPont factors are neutral.
E. Consumer Sophistication
Finally, we now consider the fourth DuPont factor, involving “[t]he conditions
under which and buyers to whom sales are made, i.e. ‘impulse’ vs. careful,
sophisticated purchasing.” DuPont, 476 F.2d at 1361. “[W]e must make our
determination based on the least sophisticated consumer.” Guild Mortg., 2020 TTAB
LEXIS 17, at *17 (citing Stone Lion, 746 F.3d at 1325).
Applicant argues that “the consumers in this field are sophisticated and careful
buyers.”25 Specifically, Applicant contends that it offers its services “strictly to
government agencies, utility and telecommunications companies, property managers,
and contractors – consumers of the municipal, commercial, and industrial type.”26
Applicant asserts that the Registrant’s services “appear to be offered to the general
24 6 TTABVUE 22.
25 6 TTABVUE 14.
26 6 TTABVUE 15.

Serial No. 98586837
18
consuming public, mainly private homeowners and some land developers.”27
Applicant concludes that its consumers “are sophisticated and able to differentiate
between a company that provides pavement-specific services versus a general
contractor [like Registrant].”28
However, as with its contention that the relevant services are unrelated,
Applicant bases its argument regarding the sophistication of its targeted consumers
(versus those of Registrant) on the putative actual marketplace differences, and not
the recitations of services in the application or cited registration. In other words,
Applicant attempts to place limitations on its own and Registrant’s target consumers,
and these limitations are not found in the identifications of the application and cited
registration. Rather, we must assume legally identical road construction and road
paving services cater to the same consumers.
In addition, although we agree with Applicant that road construction and road
paving services will generally be offered to larger companies or involve government
contracts, these services may also be offered to smaller entities, including individuals
interested in having private roads built, such as driveways. And, in the absence of
restrictions in the identifications or evidence to the contrary, we must conclude that
the least sophisticated purchasers here will not exercise anything other than ordinary
care in selecting the services. Moreover, even sophisticated purchasers are not
immune from source confusion, especially where, as here, the services are legally
27 6 TTABVUE 15.
28 6 TTABVUE 15.

Serial No. 98586837
19
identical in part and would be offered under similar marks. See Shell Oil, 992 F.2d
at 1208 (citing Weiss Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 1548 (Fed. Cir.
1990) (affirming the Board’s reasoning that even sophisticated purchasers may be
confused by similar marks)).
Accordingly, we find the fourth DuPont factor to be neutral in our analysis.29
II. Conclusion
The first DuPont factor favors the finding of a likelihood of confusion because
Applicant’s mark, , is overall similar to the cited mark, BUILDING
THE HIGH ROAD. In addition, the second and third DuPont factors strongly support
the finding that confusion is likely because the involved road construction and road
paving services are legally identical and their channels of trade are also presumed to
be the same. These factors outweigh the finding that Registrant’s mark bears some
inherent weakness under the sixth DuPont factor. Other factors for which there are
arguments and evidence are neutral. In view thereof, we conclude that Applicant’s
mark is likely to cause confusion with the cited mark.
Decision: The refusal under Trademark Act Section 2(d) to register Applicant’s
mark is affirmed.
29 In addition to the DuPont factors discussed above, Applicant briefly discusses the twelfth
DuPont factor, which considers “the extent of any potential confusion, i.e., whether de mini-
mis or substantial.” DuPont, 476 F.2d 1361. Applicant’s arguments concerning the extent of
potential confusion essentially repeat arguments under the fourth DuPont factor, which have
been duly considered. Therefore, we treat the twelfth DuPont factor as neutral.