IP Law Daily, TRADEMARK—Fed. Cir.: Stylized ’X‘ not confusable with standard ’X‘ for smoking products, (Apr 8, 2026)

By Jonathan Anderson

The court affirmed a decision by the Trademark Trial and Appeal Board that dismissed an opposition filed by a cigar company against a vape manufacturer’s trademark application.

The U.S. Court of Appeals for the Federal Circuit held that a vape manufacturer’s stylized letter “X” mark with a shaded circle above is not confusingly similar to a cigar company’s standard character trademarks for the letter “X.” The ruling, by a three-judge panel, affirmed a decision by the Trademark Trial and Appeal Board (TTAB) that dismissed an opposition filed by the cigar company against the vape manufacturer’s trademark application. The court concluded that the board’s factual findings are supported by substantial evidence, and that the cigar company failed to demonstrate harmful error in the board’s legal conclusions (Fuente Marketing Ltd. v. Vaporous Technologies, LLC, No. 24-1460 (Fed. Cir. Apr. 8, 2026)).

Background. Fuente Marketing Ltd. sells cigars and owns two standard character trademarks for the letter “X” for use in connection with cigars, ashtrays not of precious metal, cigar cutters, and lighters not of precious metal. On Sept. 18, 2020, Vaporous Technologies, LLC, which manufactures oral vaporizers (vapes), filed an intent-to-use application for a stylized “X” mark with a shaded circle above for use in connection with oral vaporizers for smoking purposes and related uses in International Class 34. Fuente opposed Vaporous’ application, alleging a likelihood of confusion between Vaporous’ stylized mark and Fuente’s own standard character “X” marks.

In December 2023, TTAB held there was no likelihood of confusion. The board determined that the lack of actual confusion and the strength of Fuente’s marks were neutral; the goods, channels of trade, and classes of purchasers were related or overlapped, which favored a likelihood of confusion; and the dissimilarity of the marks weighed against a likelihood of confusion. The board concluded that although many factors weighed in favor of a likelihood of confusion, the parties’ marks create distinct commercial impressions and are sufficiently dissimilar to negate any likelihood of confusion. TTAB subsequently dismissed Fuente’s opposition, and Fuente appealed.

Analysis. The court affirmed TTAB’s decision, concluding that the board’s factual findings are supported by substantial evidence, and that Fuente failed to demonstrate harmful error in the board’s legal conclusions. The court reviewed the board’s factual findings on each relevant DuPont factor for substantial evidence, and the board’s ultimate legal conclusion regarding likelihood of confusion de novo.

Similarity of the marks. The first DuPont factor assesses the “similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression.” The court held that substantial evidence supports the board’s finding that the dissimilarities between Vaporous’ mark and Fuente’s marks weigh against a likelihood of confusion. The board reasoned that consumers would perceive Vaporous’ mark as a stick figure, rather than the letter “X,” and because a stick figure has no pronunciation, unlike the letter “X,” the parties’ marks differed in sound. The board also considered the visual differences between the marks.

Trade channels, consumer sophistication. The third and fourth DuPont factors consider the similarity or dissimilarity of the parties’ trade channels and “the conditions under which and buyers to whom sales are made.” The court held that the board’s assessment of these factors was proper, and its findings—that the factors weighed in favor of a likelihood of confusion—are supported by substantial evidence. The board found that neither Vaporous’ trademark application nor Fuente’s registrations limit either party’s goods to any particular channel of trade or class of consumer. Therefore, the board presumed the parties’ goods move in all channels of trade usual for such goods and that they are available to all potential classes of ordinary consumers. The board concluded that vapes and cigars travel in overlapping channels of trade and to some of the same customers. As to the sophistication of purchasers, the board cited evidence that vaping may serve as an introductory product for preteens and teens who later use other, traditional nicotine products.

Fame of senior mark. The fifth DuPont factor considers the fame of the senior mark. The board held this factor was neutral, a conclusion the court said was supported by substantial evidence. The board concluded that Fuente’s “X” marks were arbitrary as applied to cigars and thus conceptually strong. However, the board said the “X” marks were commercially weak because Fuente’s evidence of marketplace recognition largely depicted the letter “X” integrated into other marks and advertising. Fuente failed to show that consumers independently consider the letter “X,” standing alone, as a source identifier for Fuente.

Similar marks. The sixth DuPont factor considers the “number and nature of similar marks in use on similar goods.” The court held there was no error in the board assigning “little probative weight” to Vaporous’ evidence on this factor. The board accorded Vaporous’ evidence little weight because Vaporous failed to submit evidence that the third-party marks were actually in use.

Weighing. The court said it agreed with the board that the differences between the marks outweigh all other relevant DuPont factors. Even though all other relevant DuPont factors were deemed neutral or in Fuente’s favor, the dissimilarity of the marks alone is a sufficient basis to conclude that no confusion is likely, especially given the board’s finding that the marks differed noticeably in sound, appearance, connotation, and commercial impression. Further, the court found the board articulated a discernable explanation of how it balanced the factors.

The Case is No. 24-1460.

Judge: Hughes, T.

Attorneys: Virginia L. Carron (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) for Fuente Marketing Ltd. Glen L. Nuttall (FisherBroyles, LLP) for Vaporous Technologies, LLC.

Companies: Fuente Marketing Ltd.; Vaporous Technologies, LLC

Cases: Trademark FedCirNews