UNITED STATES: Federal Circuit Affirms TTAB, Finding That Mark Dissimilarity Alone Can Negate Likelihood of Confusion

The U.S. Court of Appeals for the Federal Circuit affirmed the Trademark Trial and Appeal Board’s (TTAB) dismissal of an opposition brought by Fuente Marketing Ltd. (Fuente) against a trademark application filed by Vaporous Technologies, LLC (Vaporous), holding that the dissimilarity of the parties’ marks was sufficient, standing alone, to negate a likelihood of confusion under Section 2(d) of the Lanham Act.

The decision, which was issued on April 8, 2026, is noteworthy because it reinforces the principle that a single DuPont factor—particularly mark dissimilarity—can be dispositive in the likelihood of confusion analysis, even when all other relevant factors either favor the opposer or are neutral.

Fuente, a family-owned company selling premium hand-rolled cigars, owns two standard character registrations for the letter “X” covering cigars and related goods. Vaporous, a manufacturer of oral vaporizers, filed an intent-to-use application for the following design mark:

Fuente opposed, alleging likelihood of confusion. The TTAB dismissed the opposition, finding that the marks created distinct commercial impressions, and Fuente appealed.

The Federal Circuit considered the 13 DuPont factors and centered its discussion on the first DuPont factor: similarity of the marks. It analyzed whether consumers would perceive Vaporous’s mark as a letter “X” or as a stick figure. The court found that substantial evidence supported the TTAB’s conclusion that consumers would perceive the mark as a stick figure rather than a letter, noting that the circle atop the intersecting lines comprised approximately one-fifth of the mark and was not a minor or unnoticeable feature. The court further held that because a stick figure has no pronunciation, the marks also differed in sound, and that visual dissimilarities can be dispositive when comparing non-word marks.

Critically, the court held that even though every other relevant DuPont factor was either neutral or favored Fuente, including overlapping trade channels and classes of purchasers, the dissimilarity of the marks alone was a sufficient basis to find no likelihood of confusion. Citing Champagne Louis Roederer, S.A. v. Delicato Vineyards, 148 F.3d 1373, 1375 (Fed. Cir. 1998), the court reaffirmed that a single DuPont factor “may be dispositive,” particularly when that factor is mark dissimilarity.

For trademark owners, this decision underscores the challenge of sustaining opposition proceedings against design marks that incorporate recognizable letter forms but convey a different overall commercial impression.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA, except where it has taken an official position.

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