IP Law Daily, TRADEMARK—TTAB: Applicant’s composite word and design mark for candies proceeds for registration, (May 12, 2026)

By Carolin Dennis, B.Sc., LL.B., LL.M.

An opposition to trademark registration was dismissed because there was no likelihood of confusion due to the dissimilarity of the marks in sound, appearance, connotation, and commercial impression.

In a nonprecedential decision, the Trademark Trial and Appeal Board (TTAB) dismissed an opposition to registration of the applicant’s composite word and design mark under Section 2(d) of the Lanham Act. The TTAB determined that the applicant’s mark and the opposer’s registered marks overall are so dissimilar that even when used on identical goods in overlapping trade channels, consumers likely would not be confused into believing that they emanate from the same source (Candy Dynamics, Inc. v. Aurox Distributors LLC, No. 91292159 (T.T.A.B. May 7, 2026)).

Background. Aurox Distributors LLC (applicant) sought registration on the Principal Register of the composite word and design mark shown below (SOUR disclaimed) for “Candies; Candy,” in International Class 30. Candy Dynamics, Inc. (opposer) opposed the registration of the applicant’s mark under Section 2(d) of the Trademark Act on the basis of priority and likelihood of confusion with its registered marks for “Candy,” in International Class 30. The opposer also claimed prior common law rights in the same marks for the same goods.

Entitlement to a statutory cause of action. The opposer properly made of record TSDR printouts of its pleaded registrations showing their current status and title. Thus, the opposer demonstrated a statutory entitlement to oppose.

Priority. The TTAB found that because the opposer’s pleaded registrations are of record and the applicant has not counterclaimed to cancel any of them, priority was not at issue as to the registered marks and the goods identified in the registrations.

Likelihood of confusion claim. The TTAB noted that the opposer pleaded ownership of three prior registrations but the arguments rely mainly on Registration No. 7287357 (Compared Registration). Therefore, the TTAB will focus its likelihood of confusion determination on the Compared Registration.

Under the first DuPont factor, the TTAB compared the applicant’s composite word and design mark, and the opposer’s Compared Registration consisting solely of the design. The TTAB noted that in marks consisting of words and a design, the words are normally accorded greater weight because they are likely to make a greater impression upon purchasers, to be remembered by them, and to be used by them to request the goods. While the TTAB acknowledged that the applicant’s mark included a large design element, it found that the literal elements SOUR CITY to be its dominant element. Moreover, the exaggerated expression on the character’s face, i.e., its wide-eyes and outstretched tongue, suggested it has just eaten something extremely sour. Thus, the TTAB found that the image reinforced the literal elements of the mark and, for that reason, further supported its finding that the literal elements SOUR CITY was the dominant portion of the applicant’s mark. The TTAB also noted that the fact that the applicant disclaimed the term SOUR did not preclude it from finding the literal elements SOUR CITY dominant. Therefore, the first DuPont factor weighed against a likelihood of confusion.

Next, because the applicant’s goods and the goods identified in the opposer’s Compared Registration are identical, the TTAB must presume that these goods move in the same channels of trade and are available to the same classes of customers. Thus, the second and third DuPont factors weighed in favor of a finding of likelihood of confusion.

The fourth DuPont factor (purchasing conditions) also favored a likelihood of confusion because both parties identify “candy,” which is unrestricted as to classes of purchasers. Indeed, the broadly identified word “candy” includes any type of candy, including candy sold generally to consumers with sophisticated palates, i.e., gourmet chocolates, as well as inexpensive candy items that may be purchased by members of the general public on impulse.

The TTAB noted that because the opposer failed to establish that its mark falls on the higher end of the spectrum of commercial strength, the fifth factor was neutral. Further, the applicant sought to diminish the scope of protection for the opposer’s Compared Registration by introducing evidence to show that “these depictions and/or images of faces are a commonly registered term” and that “consumers are accustomed to distinguishing between multiple ‘sour-themed’ brands. However, the TTAB found that showing that these individual visual elements are commonly used does not establish the weakness of the Compared Registration, where overall the marks look quite different than the opposer’s registered mark. The TTAB found the opposer’s Compared Registration to be of average commercial strength for candy, and because the applicant was not successful in diminishing the strength of the opposer’s Compared Registration, the opposer’s Compared Registration was entitled to the ordinary scope of protection to which inherently distinctive marks are entitled. Thus, the sixth DuPont factor was also neutral.

The TTAB found that the seventh and eighth DuPont factors (nature and extent of actual confusion and conditions under which there has been concurrent use without evidence of actual confusion) were also neutral. The other factors (the ninth, tenth, twelfth, and thirteenth factors) were either neutral or irrelevant.

However, here the first DuPont factors was pivotal. The TTAB held that the dissimilarity of the marks in sound, appearance, connotation, and commercial impression were pivotal and that it outweighed the other DuPont factors. Accordingly, the TTAB concluded that confusion was unlikely as to the applicant’s identified goods and dismissed the opposition.

The Case is Opposition No. 91292159.

Judge: NA.

Attorneys: William A. Mckenna (Reeves & Wagner, LLP) for Candy Dynamics, Inc. Rexford Brabson (T-Rex Law, P.C.) for Aurox Distributors LLC.

Companies: Candy Dynamics, Inc.; Aurox Distributors LLC

Cases: Trademark USPTO