Starbuzz Tobacco, Inc.v.7D Holdings, LLC

Trademark Trial and Appeal Board

Feb 18, 2021

91252753 (T.T.A.B. Feb. 18, 2021)

RSC
February 18, 2021

Opposition No. 91252753

Starbuzz Tobacco, Inc.

v.
7D Holdings, LLC

Before Cataldo, Adlin, and English,
Administrative Trademark Judges.

By the Board:

This proceeding now comes before the Board for consideration of Opposer ’s motion
for summary judgment on its sole claim of likelihood of confusion, as well as
Applicant’s counterclaim of fraud. The motion is fully briefed.
I. Background
7D Holdings, LLC (“Applicant”) has applied for registration of the mark 7 DAZE
in stylized format, as shown below,

for the following goods in International Class 34:1

1 Application Serial No. 88470948, filed on June 12, 2019, based on Applicant’s declared use
of the mark in commerce under Trademark Act Section 1(a). The application contains the
following description of the mark: “The mark consists of the word ‘7 DAZE’ in all caps with
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
General Email: TTABInfo@uspto.gov
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB
Opposition No. 91252753

2
Cartridges sold filled with propylene glycol for electronic cigarettes; Cartridges
sold filled with vegetable glycerin for electronic cigarettes; Chemical flavorings in
liquid form used to refill electronic cigarette cartridges; Electric cigarettes;
Electronic cigarette liquid (e-liquid) comprised of flavorings in liquid form, other
than essential oils, used to refill electronic cigarette cartridges; Electronic
cigarette liquid (e-liquid) comprised of propylene glycol; Electronic cigarette liquid
(e-liquid) comprised of vegetable glycerin; Liquid nicotine solutions for use in
electronic cigarettes; Oral vaporizers for smokers; Oral vaporizers for smoking
purposes; Smokeless cigarette vaporizer pipe.

Starbuzz Tobacco, Inc. (“Opposer”) has opposed registration of Applicant’s mark
on the ground of likelihood of confusion under Trademark Act Section 2(d), based on
Opposer’s prior use and registration of the mark 7 DAYS.2 In support of its claim
Opposer pleaded ownership of Registration No. 4187775 for the mark 7 DAYS
(standard characters) for “Pipe Tobacco; Molasses Tobacco; Tobacco; Smoking
Tobacco; Flavored Tobacco” in International Class 34.3
Applicant, in its answer, denied the salient allegations of the notice of opposition,
asserted various putative affirmative defense, and asserted a counterclaim for
cancellation of Opposer’s pleaded registration on the ground of fraud.4
Opposer, in its answer, denied the salient allegations in the counterclaim and
asserted various putative affirmative defenses.5

the letter ‘Z’ formed with the number ‘7’ and a rectangular shape on the bottom portion of the
number ‘7’.” Color is not claimed as a feature of the mark.
2 Notice of Opposition ¶¶ 4, 5, 18 (1 TTABVUE 4, 6).
3 Issued on August 7, 2012, based on Opposer’s declared use of the mark in commerce under
Trademark Act Section 1(a); Section 8 affidavit accepted, Section 15 affidavit acknowledged.
4 Counterclaim ¶¶ 1-12 (6 TTABVUE 7-9).
5 8 TTABVUE.
Opposition No. 91252753

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II. Applicant’s Counterclaim
As an initial matter, we note Applicant pleaded the exact same counterclaim
against Opposer’s pleaded registration in this proceeding and in Cancellation No.
92071397. It was unnecessary for Applicant to re-plead the counterclaim in this
proceeding. Accordingly, the filing fee associated with the counterclaim in this
proceeding will be refunded to Applicant in due course. In view thereof, Opposer’s
motion for summary judgment on the counterclaim is moot and will receive no further
consideration.6
III. Opposer’s Motion for Summary Judgment
We now consider Opposer’s motion for summary judgment on its likelihood of
confusion claim. For purposes of this order, the Board presumes the parties’
familiarity with the arguments and materials submitted in connection with the
subject motion. In reaching our decision, all of the parties’ arguments and supporting
evidence properly of record were carefully considered, although we do not find it
necessary to discuss all of them in our opinion. See, e.g., Guess? IP Holder L.P. v.
Knowluxe LLC, 116 USPQ2d 2018, 2018 (TTAB 2015).
A. Standard for Summary Judgment
Summary judgment is an appropriate method of disposing of cases in which there
is no genuine dispute as to any material fact, thus allowing the case to be resolved as
a matter of law. See Fed. R. Civ. P. 56(a). The party moving for summary judgment

6 We further note the identical counterclaim in Cancellation No. 92071397 was dismissed
with prejudice. Cancellation No. 92071397, 22 TTABVUE 2.
Opposition No. 91252753

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has the initial burden of demonstrating that there is no genuine dispute of material
fact remaining for trial and that it is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1987). All evidence must
be viewed in a light favorable to the non-movant, in this case Applicant, and all
justifiable inferences are to be drawn in the non-movant’s favor. Lloyd’s Food Prods.,
Inc. v. Eli’s, Inc., 987 F.2d 766, 25 USPQ2d 2027, 2029 (Fed. Cir. 1993); Opryland
USA Inc. v. Great Am. Music Show, Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed.
Cir. 1992). In deciding a summary judgment motion, the Board may not resolve
disputes of material fact; it may only ascertain whether such disputes exist. Lloyd’s
Food Prods., 25 USPQ2d at 2029; Opryland USA, 23 USPQ2d at 1472; Olde Tyme
Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992).
When a movant sufficiently demonstrates that there is no genuine dispute of
material fact, and that it is entitled to judgment as a matter of law, the burden shifts
to the non-movant to demonstrate the existence of specific genuinely disputed facts
that must be resolved at trial. Freki Corp. N.V. v. Pinnacle Entm’t, Inc., 126 USPQ2d
1697, 1700 (TTAB 2018); Enbridge, Inc. v. Excelerate Energy L.P., 92 USPQ2d 1537,
1540 (TTAB 2009). The non-movant may not rest on the mere allegations in its
pleadings and assertions of its counsel, but must designate specific portions of the
record or produce additional evidence showing the existence of a genuine dispute as
to a material fact for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; Freki
Corp., 126 USPQ2d at 1700. A dispute as to a material fact is genuine only if a
reasonable fact finder viewing the entire record could resolve the disputed matter in
Opposition No. 91252753

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favor of the non-movant. Opryland USA, 23 USPQ2d at 1472; Olde Tyme Foods, 22
USPQ2d at 1544; Venture Out Props. LLC v Wynn Resorts Holdings, LLC, 81 USPQ2d
1887, 1890–91 (TTAB 2007).
B. Evidence of Record
In support of its motion Opposer submitted the declaration of its CFO, Majda
Haddoudi.7 Opposer further submitted the following evidence through the
declaration of its attorney, Daniel Ngai:8
 Status and title copy, along with TESS printouts of the notice of acceptance
and acknowledgment under Section 8 and 15 for Opposer’s pleaded
Registration No. 4187755;9
 Applicant’s responses to Opposer’s first set of discovery requests;10
 Certain documents produced by Applicant;11
 Applicant’s supplemental responses to Opposer ’s first set of document
requests;12
 Opposer’s responses to Applicant’s interrogatories;13
 Copies of Opposer’s invoices;14
 Excerpts from Applicant’s website and social media pages;15
 Printouts from websites from three third parties offering both tobacco and
e-liquid products, as well as showing both products manufactured by the
same third-party entities;16

7 10 TTABVUE 29-36.
8 Id. at 37-40.
9 Id. at 43-45.
10 Id. at 47-96.
11 Id. at 98-107.
12 Id. at 109-122.
13 Id. at 124-155.
14 Id. at 157-431.
15 Id. at 433-450.
16 Id. at 452-462, 486-496.
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 Printouts from the website of a third party, and social media page of
another third-party, that show both Opposer’s tobacco products and
Applicant’s e-liquid products for sale;17
 Printouts from the websites of two third parties offering e-liquids with
“hookah flavors”;18
 Sixteen third-party registrations for various marks including both “e -
liquids” and “tobacco” in their identification of goods;19 and
 An excerpt from the Wikipedia entry for “electronic cigarette”.20
In response, Applicant submitted the declaration of its principal, John Lau.21
Applicant further submitted the declaration of its attorney, Tommy SF Wang, which
included the following evidence:22
 TESS printouts for Registrations Nos. 5424919 (7 DAZE in stylized format)
5683543 (7 DAZE), and 5683544 (SEVEN DAZE), all owned by Applicant’s
related entity;23
 Opposer’s responses to Applicant’s first set of discovery requests and its
supplemental responses to Interrogatory Nos. 8, 11, and 16;24
 Table of contents and other pages from Opposer ’s product catalog, as well
as images which are purported to be Opposer ’s specimens submitted to the
Trademark Office;25
 Excerpts from the Wikipedia entries for “E-cigarette liquid” and “Structure
and Operation” and “Health effects” of hookahs;26

17 Id. at 464-470. We note however, that neither third-party shows both Opposer’s pleaded
mark and Applicant’s involved mark.
18 Id. at 472-484.
19 Id. at 498-513.
20 Id. at 515.
21 11 TTABVUE 28-30.
22 Id. at 32-36.
23 Id. TTABVUE 39-44, see also id. at 32-33, ¶ 3.
24 Id. at 49-128.
25 Id. at 130-135, 277-281.
26 Id. at 137-139.
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 Copies of Opposer’s invoices;27
 Printouts of dictionary entries for the words “days” and “daze”;28
 Printouts from the website of a third party rating Applicant ’s product;29
 Printouts from the website of a third party offering bottles of e-liquids for
sale;30 and
 Printouts from the Facebook page for “7Days Tobacco” and a website for the
third party Da-Shisha.31

In its reply, Opposer submitted a second declaration from Mr. Ngai, which also
submits as evidence a July 15, 2020 letter from Applicant ’s counsel regarding alleged
deficiencies in Opposer’s discovery responses and a redacted copy of Opposer ’s August
21, 2020 supplemental discovery responses.32
We note that both parties submitted the entirety of their adversary ’s discovery
responses despite only relying on a limited number of those responses, as well as
resubmitting evidence previously submitted by the other side.33 The introduction of
such evidence impedes the orderly administration of the case, and obscures the
impact of truly relevant evidence. In addition to diminishing the effectiveness of a

27 Id. at 141-275.
28 Id. at 283-284.
29 Id. at 286.
30 Id. at 288-294.
31 Id. at 296-298.
32 13 TTABVUE 14-23.
33 For example, both parties submitted 274 pages of Opposer’s invoices and Opposer’s
supplemental interrogatory responses.
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party’s evidentiary record, “papering” the Board causes delays in rendering a decision
and may, in certain instances, be sanctionable.
C. Section 2(d) Claim
As the movant for summary judgment on its Section 2(d) claim, Opposer must
establish that there is no genuine dispute of material fact that: 1) it has entitlement
to a statutory cause of action; 2) it has priority; and 3) the contemporaneous use of
the parties’ marks for the goods alleged by Opposer and identified in Applicant ’s
application is likely to cause confusion as to the source of the goods. Threshold.TV,
Inc. v. Metronome Enters., Inc., 96 USPQ2d 1031, 1036 (TTAB 2010).
1. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action is a threshold issue in every inter partes
proceeding. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d
1370, 2020 USPQ2d 10837 at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 125-26 (2014)). To establish entitlement to a
statutory cause of action under Sections 13 and 14 of the Trademark Act, a plaintiff
must demonstrate that cancellation of the registration is within the zone of interests
protected by the statute and that plaintiff has a reasonable belief o f damage
proximately caused by registration of the mark. Corcamore, LLC v. SFM, LLC, 978
F.3d 1298, 2020 USPQ2d 11277 at *6-7 (Fed. Cir. 2020); see also Empresa Cubana
Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058 (Fed. Cir. 2014);
Opposition No. 91252753

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Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727
(Fed. Cir. 2012).34
Opposer may establish its standing by properly making of record its pleaded
registration, if it is the basis for a likelihood of confusion claim that is not wholly
without merit. Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ
185, 189 (CCPA 1982); see also Coach Servs., 101 USPQ2d at 1727–28. Pursuant to
Trademark Rule 2.122(d)(1), Opposer properly made of record its registration by
submitting copies of printouts from the USPTO TESS database showing the current
status and title of its pleaded registration.35 Accordingly, there is no genuine dispute
of material fact regarding Opposer ’s s entitlement to a statutory cause of action. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000).
2. Priority
Applicant challenges Opposer’s priority, relying on its counterclaim attacking the
validity of the registration and questioning the sufficiency of Opposer’s evidence of
its prior use in commerce. Because Applicant’s counterclaim has been dismissed,
Opposer’s priority for the goods in its registration is not at issue.36 King Candy Co. v.

34 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, under the rubric of “standing.” Despite the change in nomenclature, our prior
decisions and those of the Court of Appeals for the Federal Circuit interpreting Sections 13
and 14 remain applicable. See Spanishtown Enters., Inc. v. Transcend Res., Inc., 2020
USPQ2d 11388 at *2 (TTAB 2020)
35 10 TTABVUE 43-45.
36 Even if Opposer only relied on its common law rights, its CFO Majda Haddoudi’s
uncontradicted testimony indicates that these rights are prior to Applicant’s.
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Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974); L’Oreal
S.A. v. Marcon, 102 USPQ2d 1434, 1436 n.7 (TTAB 2012).
3. Likelihood of Confusion
In determining the issue of likelihood of confusion and whether there are any
genuine disputes of material fact, we consider all of the evidence of record bearing on
the factors delineated in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24
(CCPA 1976); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744,
1747 (Fed. Cir. 2017); Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340,
1344-45 (TTAB 2017).
a) Similarity and Dissimilarity of the Marks
With respect to the marks, we must compare them “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay, 73 USPQ2d
at 1691 (quoting DuPont, 177 USPQ at 567). Similarity in any one of these elements
suffices to support a determination of likelihood of confusion. See Krim-Ko Corp. v.
Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968); In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014). The test under this DuPont factor is whether the
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marks are sufficiently similar that confusion as to the source of the goods offered
under the respective marks is the likely result.
As an initial matter, Applicant admitted the word “days” in Opposer’s mark and
the term “daze” its mark sound similar to each other.37 Applicant contends that the
identical sound of the parties’ marks is not controlling because Opposer offered no
evidence that its products are marketed or sold through verbal or aural means, and
Applicant sells its products in entirely visual formats. Applicant also argues in its
response to the motion that consumers would likely refer to its mark as “DAZE”
because the “7” is embedded within the word “DAZE” and, in turn, consumers would
“relate the word ‘daze’ to the feeling of smoking, rather than days of the week.”38
However, Applicant offers no evidence that consumers refer to its mark as simply
“DAZE,” Applicant’s submitted dictionary entry for “DAZE” does not refer to “the
feeling of smoking,” and Applicant has not moved to withdraw its earlier admission
that “days” and “daze” sound similar to each other. Nor are we persuaded that
Applicant’s mark is so highly stylized that the “7” is obscured. Moreover, even if the
marks had slightly different meanings, likelihood of confusion may be found based on
a similarity for just one of the elements of sight, sound, and meaning. Krim-Ko, 156
USPQ 523. In any event, Applicant’s argument is belied by Applicant’s own
description of its mark in the application, which indicates that “[t]he mark consists
of of (sic) the stylized word ‘7 DAZE’ ….”

37 10 TTABVUE 93 (Request for Admission No. 22); see also 11 TTABVUE 13.
38 11 TTABVUE 14.
Opposition No. 91252753

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The stylization of Applicant’s mark does not distinguish it from Opposer’s pleaded
mark, because Opposer’s mark is in standard characters and could therefore be
displayed in the same exact font as Applicant’s mark. In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1909-11 (Fed. Cir. 2012). Additionally, the admitted
phonetic equivalence of the Applicant’s stylized 7 DAZE mark to Opposer ’s pleaded 7
DAYS mark supports a determination that Applicant ’s mark is likely to be confused
with Opposer’s mark. See Interstate Brands Corp. v. McKee Foods Corp., 53 USPQ2d
1910, 1913 (TTAB 2000) (similarities in sound and appearance between HOHOs and
YOYO’S outweighed difference in connotations); see also Krim-Ko, 156 USPQ at 526
(finding the aural similarities of the marks VEEP and BEEP to be such that confusion
would be likely); Centraz Indus. Inc. v. Spartan Chem. Co., 77 USPQ2d 1698, 1701
(TTAB 2006) (floor finishing preparations found to be confusingly similar despite
different stylization and different spelling, because “what stands out in the
comparison between the marks ICE SHINE and ISHINE (stylized) is the similarity
in sound”); Beck & Co. v. Package Distribs. of Am., Inc., 198 USPQ 573, 576 (TTAB
1978) (despite differences in significance and appearance, likelihood of confusion
found between BECK’S BEER and EX BIER because the marks were “substantially
similar in sound”). To someone hearing the parties’ marks, they have an identical
meaning. Applicant’s mark includes the “7” and is intended to call “DAYS” to mind,
not just “DAZE”.
In sum, when Opposer’s 7 DAYS mark and Applicant’s stylized 7 DAZE mark are
considered in their entireties, they are identical in sound and highly similar in
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appearance and commercial impression. Accordingly, there is no genuine dispute that
the parties’ marks are similar.
b) The Parties’ Goods and Trade Channels
Our determination regarding whether the parties ’ goods are similar is based on
the identification of goods in Applicant ’s application and Opposer’s registration. See
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161 (Fed. Cir. 2014) (“the question of registrability of an applicant ’s mark
must be decided on the basis of the identification of goods set forth in the
application”); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d
1001, 1004 (Fed. Cir. 2002) (“This ‘relatedness of the goods’ factor compares the goods
and services in the applicant’s application with the goods and services in the opposer’s
registration.”).
Moreover, the goods need not be identical or even directly competitive for there to
be a likelihood of confusion, but the evidence must establish that the goods are related
in some manner, or the conditions surrounding their marketing are such, that they
could be encountered by the same purchasers under circumstances that could give
rise to the mistaken belief that the goods come from a common source. Hewlett-
Packard Co., 62 USPQ2d at 1003-04.
Opposer has submitted sixteen third-party registrations showing that various
entities have adopted a single mark for both some type of tobacco and some type of e-
liquids. Although these registrations are not evidence that the marks shown therein
are in use or that the public is familiar with them, they nonetheless have probative
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value to the extent that they serve to suggest that the goods identified therein are of
a type which may emanate from the same source. Joel Gott Wines LLC v. Rehoboth
Von Gott Inc., 107 USPQ2d 1424, 1432 (TTAB 2013); see also Hewlett-Packard, 62
USPQ2d at 1004; In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001);
In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n. 6 (TTAB 1988).
Opposer also provided Internet webpage printouts from five third-parties that sell
both tobacco and e-liquid products.39 As the Federal Circuit has noted, evidence that
“a single company sells the goods … of both parties, if presented, is relevant to a
relatedness analysis.” Hewlett-Packard, 62 USPQ2d at 1004. See also In re Davey
Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys.
Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB 2009).
The foregoing third-party registration and Internet evidence shows that the same
entities commonly provide both tobacco and e-liquid products often under the same
mark, which supports a determination that the parties ’ goods are related for
likelihood of confusion purposes.
In response, Applicant argues the public would not be confused as to the source of
the parties’ goods because Applicant sells multiple products under its involved mark,
whereas Opposer only sells one flavor under its pleaded mark. Applicant also asserts
that while both hookah tobacco and e-liquids are tobacco products, they serve
different purposes and are not interchangeable.

39 10 TTABVUE 452-470, 486-496.
Opposition No. 91252753

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Applicant’s arguments are unpersuasive. It is irrelevant how many flavors of
tobacco or e-liquids are actually, currently offered under the parties’ respective
marks. The relevant questions are: (1) what goods are identified in the application
and registration, as opposed to what goods are actually offered; and (2) whether
consumers would confuse the source of the parties’ goods. Here, Applicant admitted
in its answer that, as its application makes clear, its goods “are related to electronic
cigarettes, e-liquids, and oral vaporizers for smoking purpose[s]”, stated in discovery
that that its “target consumers are smokers over the age of 21 that are looking for
alternatives to smoking,” and reiterated that both products are tobacco products in
its response brief.40 That e-liquids are not interchangeable with hookah tobacco is
also of no consequence. Applicant’s products are essentially substitutes for smoking,41
and therefore manifestly closely related to Opposer ’s tobacco products. Beck & Co.,
198 USPQ at 576 (non-alcoholic beer, promoted as a beer substitute, manifestly
closely related to petitioner’s beer product).
Regarding the trade channels for the parties’ goods, because neither Opposer’s
pleaded registration nor Applicant’s involved application include restrictions as to
channels of trade or classes of customers, we must presume that the identified goods
travel through all normal and usual trade channels for such goods, and that they are
sold to all classes of prospective purchasers for those goods. See Hewlett-Packard Co.,
62 USPQ2d at 1005 (“absent restrictions in the application and registration, goods

40 6 TTABVUE 5, ¶ 23, 10 TTABVUE 58-59 (Interrogatory No. 13), 11 TTABVUE 18.
41 See also 10 TTABVUE 515.
Opposition No. 91252753

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and services are presumed to travel in the same channels of trade to the same class
of purchasers”); Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816,
1825-26 (TTAB 2015).
Opposer has shown that tobacco and e-liquid products are sold in the same trade
channels, namely, online retail stores. Accordingly, to the extent Applicant asserts
Opposer only markets its goods under the pleaded mark through its own product
catalog, such an argument is unpersuasive since the identification of goods in
Opposer’s registration does not limit Opposer ’s trade channels. See, e.g., Stone Lion,
110 USPQ2d at 1162; Octomom, 16 USPQ2d at 1787. The third-party website
evidence discussed above shows that tobacco and e-liquid products are sold through
the same retail sites, reaching the same consumers. Opposer’s evidence also shows
retailers offer both Applicant’s e-liquid goods and Opposer’s tobacco goods.42
Accordingly, there is no genuine dispute that the parties’ goods are related and
will travel through some of the same trade channels to some of the same classes of
consumers.
c) Purchasing Conditions
The fourth DuPont factor considers “[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” Stone Lion,
110 USPQ2d at 1162 (quoting DuPont, 177 USPQ at 567).
Opposer contends that its products are inexpensive, impulse items. Applicant
argues Opposer’s statements regarding the cost of its goods are unsupported, and

42 Id. at 464-470.
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that Applicant’s price point for its e-liquid goods is on the “higher end” for this type
of product. Applicant also argues that since e-liquids and tobacco serve different
purposes, consumers would pay attention to the type of product they are purchasing.
While Applicant attempts to raise a genuine dispute of material fact as to the cost
of Opposer’s goods under the pleaded mark,43 our determination is based on the goods
as they are identified in the application and cited registration, respectively, not on
any extrinsic evidence, such as actual prices. In re i.am.symbolic, LLC, 123 USPQ2d
at 1749; Stone Lion, 110 USPQ2d at 1162. Because the e-liquid, and other goods,
described in the application have no limitations as to their type or price point, and
may be relatively inexpensive and purchased by the public at large, we must assume
the purchasers include casual consumers purchasing relatively inexpensive items.
See, e.g., In re Bercut-Vandervoort & Co., 229 USPQ 763, 765 (TTAB 1986).
Additionally, Board precedent requires our decision to be based “on the least
sophisticated potential purchasers” in the relevant class of customers. Stone Lion,
110 USPQ2d at 1163 (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A., 100
USPQ2d 1584, 1600 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d
1679 (TTAB 2014)).
Based on the foregoing, we find the fourth DuPont factor neutral.

43 We note it is unclear from Opposer’s evidence if the cost of goods discussed in its CFO
declaration are Opposer’s products in general or specifically those offered the pleaded mark.
See 10 TTABVUE 30, 31, ¶¶ 6, 8.
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d) Bad Faith
A party’s bad faith in adopting a mark is relevant to the thirteenth DuPont factor,
which includes “any other established fact probative of the effect of use.” Quiktrip W.,
Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 2021 USPQ2d 35 at *4 (Fed. Cir. 2021)
(citing DuPont, 177 USPQ at 567). Here, while Applicant admits that it was aware of
Opposer’s pleaded mark,44 that by itself is not enough to support a finding of bad
faith. Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793,
1798 (Fed. Cir. 1987). It requires an intent to confuse. Starbucks Corp. v. Wolfe’s
Borough Coffee, Inc., 588 F.3d 97, 92 USPQ2d 1769, 1782 (2d Cir. 2009) (the only
relevant intent is intent to confuse).
Accordingly, there is a lack of evidence showing an intent to confuse or to exploit
Opposer’s reputation or good will. Thus, with respect to DuPont factor thirteen, there
is no showing of bad faith on the part of Applicant.
e) Other DuPont Factors45
Applicant asserts that Opposer failed to address numerous DuPont factors,
including, inter alia, the fame of Opposer ’s mark and the number and nature of
similar marks in use on similar goods. In particular, Applicant contends Opposer
provided no evidence related to commercial awareness of its mark and Applicant

44 11 TTABVUE 29, ¶ 4.
45 Parties are not required to address every DuPont factor, nor does the Board need to
consider factors that are not of record. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d
1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006). While Applicant presents nominal arguments
as to the ninth through thirteenth DuPont factors these arguments are, to the extent
pertinent, subsumed in Applicant’s arguments regarding other DuPont factors addressed
above.
Opposition No. 91252753

19
introduced evidence that a German company uses 7DAYS for its brand of tobacco
flavors, which was the only result returned in an online search for “7DAYS tobacco.”46
Applicant also contends the parties have concurrently used their marks for five years
without any evidence of actual confusion.
In reply, Opposer maintains that Applicant’s arguments regarding third-party use
and Opposer’s lack of evidence regarding fame are both irrelevant because the third-
party use is not within the United States and Opposer is not alleging its mark is
famous.
Applicant admits the third-party using the mark 7DAYS is a German company,47
and there is no testimony or evidence to the effect that consumers in the United
States would purchase goods from this company. This foreign use is not probative
under the sixth DuPont factor. We find this factor neutral.
Turning to the factor of fame, Opposer has not claimed that its mark is famous,
nor is there any evidence showing fame. Accordingly, Opposer ’s mark is not entitled
to the wide and expansive scope of protection to which a famous mark would be
entitled in our likelihood of confusion analysis. See Carefirst of Maryland Inc. v.
FirstHealth of the Carolinas Inc., 77 USPQ2d 1492, 1507 (TTAB 2005). It is settled,
however, that a mark need not be famous in order to be entitled to protection. See
Cunningham, 55 USPQ2d at 1847.

46 11 TTABVUE 36, ¶ 16.
47 Id.
Opposition No. 91252753

20
Regarding the seventh DuPont factor, there is no evidence of any instances of
actual confusion. However, there is no evidence of record pertaining to the eighth
DuPont factor, i.e., “the length of time during and conditions under which there has
been concurrent use without evidence of actual confusion.” Specifically, on this record
there is no meaningful way to gauge the absence of actual confusion as we do not
know the nature or extent of use of either Opposer’s pleaded mark or Applicant’s
involved mark.48 Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB
2007) (the probative value of the absence of actual confusion depends upon there
being a significant opportunity for actual confusion to have occurred). In any event,
actual confusion is not necessary to show a likelihood of confusion. See Herbko Int’l,
Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) .
Accordingly, we conclude the eighth DuPont factor is neutral in this case.
D. Determination
In view of the foregoing, Opposer ’s motion for summary judgment on its claim of
likelihood of confusion under Trademark Act Section 2(d) is granted. Judgment is
entered in favor of Opposer, the opposition is sustained, and registration of
Applicant’s mark is refused.

48 Moreover, while Applicant refers to 2014 as the operative date for determining the parties’
co-existence, 2014 was when Applicant’s related entity began using its marks – and not the
stylized 7 DAZE mark as set forth in the subject application. See 11 TTABVUE 21-22.