Fuente Marketing Ltd., a family-owned company that sells premium hand-rolled cigars made with tobacco grown in the Dominican Republic, opposed Vaporous Technologies LLC's trademark application for a mark consisting of two diagonal intersecting lines forming a stylized 'X' with a shaded circle above it. Fuente owns two standard character trademarks for the letter 'X' for use with cigars, ashtrays, cigar cutters, and lighters. Vaporous sought to register its mark for oral vaporizers and related smoking products.
The Federal Circuit rejected Fuente's challenge to the Trademark Trial and Appeal Board's finding that the marks were dissimilar. Circuit Judge Hughes explained that while Fuente argued the board improperly relied on a stipulation describing the mark as a 'stick figure,' any error was harmless because the board also analyzed the mark independently. 'The Board assessed the mark separate from the parties' stipulation; concluded the 'circle, or head of the stick figure' comprised about a fifth of the mark and thus was 'not a minor or unnoticeable feature,'' Hughes wrote. The court found substantial evidence supported the board's conclusion that consumers would perceive the mark as a stick figure rather than the letter X.
The board had originally dismissed Fuente's opposition in December 2023 after applying the DuPont factors for likelihood of confusion. While the board found that the goods, trade channels, and customer classes overlapped in favor of confusion, it concluded the dissimilarity between the marks was decisive. The board determined that although Fuente's X marks were conceptually strong as arbitrary marks, they were commercially weak because evidence showed the letter X was typically integrated into other marks rather than standing alone as a source identifier.
The ruling reinforces that a single DuPont factor may be dispositive in trademark disputes, particularly when that factor involves mark dissimilarity. The decision also clarifies that trademark registrability must be decided based on the identification of goods in the application, regardless of real-world usage restrictions. This creates precedent for how courts should analyze stylized marks that incorporate common letters or symbols, emphasizing the importance of overall commercial impression over individual elements.