IP Law Daily, TRADEMARK—TTAB: TTAB reverses Examining Attorney; PRO-GO not confusable with HANDY PRO-GO, (May 28, 2026)

By Jonathan Anderson

The Board did not find the marks similar or goods related, but did find overlap in trade channels and classes of customers.

The Trademark Trial and Appeal Board reversed the Examining Attorney’s refusal to register PRO-GO for lotion containers, concluding that the proposed mark is not likely to cause confusion with HANDY PRO-GO for plastic pails. In weighing the relevant DuPont factors, the Board said it was not persuaded that the goods are sufficiently related such that confusion is likely, or that the marks have similar meanings and create similar commercial impressions when considered in relation to their respective goods. The Board’s analysis of trade channels and classes of consumers did weigh in favor of a finding of a likelihood of confusion (In re Sun Tube, LLC, No. 97365902 (T.T.A.B. May 22, 2026)).

Background. Applicant, Sun Tube, LLC, sought registration on the Principal Register of the standard character mark PRO-GO for “lotion containers sold empty for domestic use, namely bendable tubing for personal transport of such lotions” in International Class 21. The Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the standard character mark HANDY PRO-GO, registered on the Principal Register for goods including “portable plastic containers, namely, pails” in International Class 21. Applicant appealed.

Analysis. The Board analyzed all the probative evidence of record bearing on a likelihood of confusion and considered each DuPont factor for which there was evidence and argument.

The goods. The Board determined that the second DuPont factor weighed against a finding of likelihood of confusion. Applicant argued that the goods are dissimilar because the goods in the Cited Registration are specifically limited to pails, which are not included in Applicant’s limited identification. But Applicant’s argument was unavailing, the Board said, because identity is not required to support a finding of likelihood of confusion. Yet the Board also did not agree with the Examining Attorney. The Examining Attorney submitted evidence to show that Applicant’s goods are related to Registrant’s in a manner likely to cause some source confusion, namely that certain websites demonstrate that the same entity commonly provides both lotion containers sold empty for domestic use. However, given the potential differences in these products and Applicant’s own identification, and the limited number of entities offering both types of goods, the Board said it was not persuaded that the goods are sufficiently related such that confusion is likely.

Trade channels, classes of consumers. Noting the overlap in trade channels and classes of consumers, the Board said the third and fourth DuPont factors weighed in favor of a finding of a likelihood of confusion. The Examining Attorney argued that because the goods are closely related, so too are the channels of trade and classes of consumers. Because the Cited Registration does not contain any restrictions as to channels of trade and classes of purchasers, the Board said it must presume the goods travel in all the usual channels of trade and normal classes of purchasers for such goods. The Board wrote that the goods at issue are lotion containers for domestic or personal use and could be offered for sale in the same types of online stores that sell many types of product packaging. Applicant argued that Registrant’s specimen and website show that the Registered Mark’s goods are for professionals. However, the Board said it cannot read limitations into the goods of the Cited Registration, its trade channels, or classes of purchasers.

The marks. In evaluating the first DuPont factor, the Board did not find the marks sufficiently similar, which weighed against likelihood of confusion. The Board found that the marks are similar in appearance and sound, to an extent, and the entirety of Applicant’s PRO-GO mark is identical to the PRO-GO component of Registrant’s mark. Applicant argued that the term HANDY in the Cited Mark is necessarily dominant and therefore each of the marks have distinct and different commercial impressions, while the Examining Attorney argued that Applicant’s mark is likely to appear to prospective purchasers as a shortened form of Registrant’s mark. The Board said it was not convinced that HANDY PRO-GO and PRO-GO have similar meanings and create similar commercial impressions when considered in relation to the respective goods.

Balancing of the factors. The Board held that the balance tips in favor of a conclusion that confusion is not likely, with the first and second DuPont factors determinative.

The Case is Serial No. 97365902.

Judge: Brock, E.

Attorneys: Zachary D. Messa (Johnson Pope Bokor Ruppel & Burns, LLP) for Sun Tube, LLC. Jacqueline Tate-Naghi for the USPTO.

Companies: Sun Tube, LLC

Cases: Trademark USPTO