We exercise jurisdiction pursuant to 28 U.S.C. § 1295(a)(4). Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1356 (Fed. Cir. 2000). RHL's applications languished at the United States Patent and Trademark Office ("PTO") for nearly two decades as the result of the parties' failure to move the applications and corresponding oppositions forward.
The TTAB's factual findings with respect to the relevant factors must be upheld unless they are unsupported by substantial evidence. Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1356 (Fed. Cir. 2000). Regarding new evidence, such evidence must itself be considered de novo by the district court-in the sense of being fairly weighed without placing a thumb on the scales or dismissing it out of hand.
"[I]t is not improper to state that, for rational reasons, more or less weight has been given to a particular feature of the mark, provided the ultimate conclusion rests on consideration of the marks in their entireties." Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1357 (Fed. Cir. 2000); see In re Nat'l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985) ("Indeed, this type of analysis appears to be unavoidable.").
We cannot discern if the Board also considered and rejected this testimony outside its discussion of the issue of natural expansion. See, e.g., Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1358 (Fed. Cir. 2000) (vacating and remanding because the court could not "discern from the Board's brief discussion" whether the Board applied the wrong test); Decision at *18 (noting an "absence of evidence showing that other companies in [Naterra's] industry also sell medicated teas"); J.A. 134 ¶¶ 13-17. Because we cannot discern whether the relevant evidence was properly evaluated, we remand to the Board for further consideration and explanation of its analysis under this factor.
We understand that requiring less than an explicit statement may appear to be in tension with our review of Board determinations under the Administrative Procedure Act ("APA"), which requires the Board to "explain[ ] its decisions with sufficient precision, including the underlying factfindings and [its] rationale." Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1357 (Fed. Cir. 2000). But there is no such tension where the Board makes an implicit finding on reasonable expectation of success by considering and addressing other, intertwined arguments, including, as we hold today, a motivation to combine.
TQ Delta, 942 F.3d at 1358 (quotations omitted). Although our review under the Administrative Procedure Act (APA) is deferential, id., the Board must "explain[] its decisions with sufficient precision, including the underlying factfindings and [its] rationale," Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1357 (Fed. Cir. 2000). Indeed, "the Board may not short-cut its consideration of the factual record before it."
As long as the Board considers "all of the features of the mark," "it is not improper to state that, for rational reasons, more or less weight has been given to a particular feature of the mark, provided the ultimate conclusion rests on consideration of the marks in their entireties." Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1357 (Fed. Cir. 2000). Here, the Board's analysis meets that standard.
It is not improper for the Board to determine that, "for rational reasons," it should give "more or less weight . . . to a particular feature of the mark" provided that its "ultimate conclusion" regarding the similarity of the marks "rests on consideration of the marks in their entireties." Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1357 (Fed. Cir. 2000) (citing In re Nat'l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985)). Here, the Board acknowledged that Sjoklaedagerdin's mark 66°NORTH "includes the symbol °, which is verbalized as the word 'degree.'"
It is not improper for the Board to determine that, "for rational reasons," it should give "more or less weight ... to a particular feature of the mark" provided that its ultimate conclusion regarding the likelihood of confusion "rests on [a] consideration of the marks in their entireties." Packard Press, Inc. v. Hewlett-Packard Co. , 227 F.3d 1352, 1357 (Fed. Cir. 2000) (citing In re Nat'l Data Corp. , 753 F.2d 1056, 1058 (Fed. Cir. 1985) ).Here, the Board properly found that, when evaluating the similarity of the marks, it should accord less weight to the shared term KITCHEN(S) because "kitchen" is a "highly suggestive, if not descriptive" word.
The registration for APHOGEE lacks any trade channel restrictions. We thus presume KAB's goods travel in all normal channels of trade, see Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1361 (Fed. Cir. 2000), including "traditional brick-and-mortar and online department stores" and "high-end retail stores," J.A. 12. Louis Vuitton's application, on the other hand, restricts trade channels.