Fuente Marketing Ltd. v. Vaporous Technologies, LLC

United States Court of Appeals
for the Federal Circuit
______________________
FUENTE MARKETING LTD.,
Appellant
v.
VAPOROUS TECHNOLOGIES, LLC,
Appellee
______________________
2024-1460
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
91270800.
______________________
Decided: April 8, 2026
______________________
VIRGINIA L. CARRON, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, Atlanta, GA, argued for appellant.
Also represented by ROBERT GORDON WRIGHT; DOUGLAS
ANTHONY RETTEW, Washington, DC.
GLEN L. NUTTALL, FisherBroyles, LLP, Los Angeles,
CA, argued for appellee.
______________________
Before PROST, TARANTO, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Case: 24-1460 Document: 65 Page: 1 Filed: 04/08/2026

-- 1 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 2
Fuente Marketing Ltd. appeals the decision of the
United States Trademark Trial and Appeal Board dismiss-
ing its opposition to a trademark application filed by Vap-
orous Technologies, LLC. The Board dismissed Fuente’s
opposition on the ground that there was no likelihood of
confusion between Vaporous’s applied-for mark and
Fuente’s registered X marks. We affirm.
I
Fuente Marketing Ltd. (Fuente) and Vaporous Tech-
nologies, LLC (Vaporous) both offer smoking-related prod-
ucts. Fuente is a family-owned-and-operated company that
sells premium hand-rolled cigars made with tobacco grown
in the Dominican Republic. Fuente 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. See X, Registration
No. 3,254,146; X, Registration No. 3,285,314. As it has reg-
istered standard character marks, Fuente is entitled to de-
pictions of its X marks without limitation as to font style,
size, or color. See Citigroup Inc. v. Cap. City Bank Grp.,
Inc., 637 F.3d 1344, 1353 (Fed. Cir. 2011).
Vaporous designs and manufactures oral vaporizers
(colloquially, vapes), which are battery-powered devices
that simulate smoking by heating a concentrate into an
aerosol the user inhales. On September 18, 2020, Vaporous
filed an intent-to-use application, seeking to register the
following mark:
for use on or in connection with the following goods in In-
ternational Class 34:
Oral vaporizers for smoking purposes; oral vapor-
izers for smoking purposes for use with liquid nic-
otine solutions; oral vaporizers for smoking
purposes for use with electronic cigarette liquid (e-
Case: 24-1460 Document: 65 Page: 2 Filed: 04/08/2026

-- 2 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 3
liquid); oral vaporizers for smoking purposes for
use with oils, waxes and isolates containing CBD
being solely derived from hemp with a delta-9 tet-
rahydrocannabinol concentration of not more than
0.3 percent on a dry weight basis; oral vaporizers
for smoking purposes for use with oils waxes and
isolates having a tetrahydrocannabinol concentra-
tion of more than 0.3 percent on a dry weight basis;
all of the foregoing goods are exclusively for use
with tobacco products, cannabis products solely de-
rived from hemp with a delta-9 tetrahydrocanna-
binol (THC) concentration of not more than
0.3 percent on a dry weight basis, and CBD prod-
ucts solely derived from hemp with a delta-9 tetra-
hydrocannabinol (THC) concentration of not more
than 0.3 percent on a dry weight basis[.]
U.S. Trademark Application Serial No. 90/192,180 (filed
Sep. 18, 2020). Fuente opposed Vaporous’s application, al-
leging a likelihood of confusion between the mark and its
own standard character X marks.1 See 15 U.S.C. § 1052(d).
During the opposition proceedings, the parties filed a stip-
ulation addressing evidence and facts relevant to the like-
lihood of confusion analysis. See J.A. 130. The parties made
the following stipulation of fact: “Vaporous’s X Dot Mark
‘consists of an abstract stick figure consisting of two diago-
nal intersecting lines in the shape of a wide stylized letter
“X” and a shaded circle above the letter “X.”’” J.A. 133.
In December 2023, the Trademark Trial and Appeal
Board (Board) dismissed Fuente’s opposition after
1 Fuente also opposed Vaporous’s application on
grounds that the mark was likely to be confused with
Fuente’s family of eighteen registered marks encompass-
ing the letter X. But the Trademark Trial and Appeal
Board concluded no such family of marks exists, and
Fuente does not challenge that finding on appeal.
Case: 24-1460 Document: 65 Page: 3 Filed: 04/08/2026

-- 3 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 4
determining there was no likelihood of confusion between
Vaporous’s mark and Fuente’s X marks. Fuente Mktg.
Ltd. v. Vaporous Techs., LLC, No. 91270800, 2023 WL
11758750, at *18 (T.T.A.B. Dec. 14, 2023) (Decision). The
Board assessed the existence of a likelihood of confusion by
considering the factors set out in In re E.I. DuPont
DeNemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973).
Specifically, 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, favoring a likelihood of confu-
sion; and the dissimilarity of the marks weighed against a
likelihood of confusion. Decision, 2023 WL 11758750,
at *18. The Board concluded that, although many factors
weighed in favor of a likelihood of confusion, the parties’
marks create distinct commercial impressions and are suf-
ficiently dissimilar to negate any likelihood of confusion.
The Board thus dismissed Fuente’s opposition, and Fuente
timely appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(4)(B).
II
Under the Lanham Act, a mark may be refused regis-
tration on the principal register if it is “likely, when used
on or in connection with the goods of the applicant, to cause
confusion” with another’s mark. 15 U.S.C. § 1052(d). “Like-
lihood of confusion is a question of law with underlying fac-
tual findings made pursuant to the DuPont factors.”
StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d
1327, 1331 (Fed. Cir. 2014). We review the Board’s factual
findings on each relevant DuPont factor for substantial ev-
idence but its ultimate legal conclusion regarding likeli-
hood of confusion de novo. Id. Substantial evidence is “more
than a mere scintilla”; it is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S.
197, 229 (1938).
Case: 24-1460 Document: 65 Page: 4 Filed: 04/08/2026

-- 4 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 5
On appeal, Fuente challenges the Board’s analysis of
DuPont factors one and five—respectively, the similarity of
the marks and the fame of Fuente’s registered X marks.
Fuente also challenges the Board’s overall weighing of the
DuPont factors.2 Vaporous counters, primarily contesting
the Board’s analysis of DuPont factors three and four,
which consider the similarity between the parties’ trade
channels and the relative sophistication of each party’s
consumers.
A
The first DuPont factor assesses the “similarity or dis-
similarity of the marks in their entireties as to appearance,
sound, connotation and commercial impression.” DuPont,
476 F.2d at 1361. “The proper test is not a side-by-side
comparison of the marks, but instead whether the marks
are sufficiently similar in terms of their commercial im-
pression such that persons who encounter the marks would
be likely to assume a connection between the parties.”
Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
1356, 1368 (Fed. Cir. 2012) (cleaned up). The Board found
that DuPont factor one decisively weighed against a likeli-
hood of confusion because consumers would perceive Vap-
orous’s 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
then focused on the visual differences between the marks,
ultimately finding that the “dissimilarity between the
2 Fuente also argues the Board erred by failing to re-
solve any doubts concerning likelihood of confusion in
Fuente’s favor as the senior user. But aside from generally
alleging error, Fuente does not identify any doubts the
Board failed to resolve in its favor. See generally Appel-
lants’ Br. 63–64. This argument is thus underdeveloped
and waived. See SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006).
Case: 24-1460 Document: 65 Page: 5 Filed: 04/08/2026

-- 5 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 6
marks weighs against finding a likelihood of confusion.”
Decision, 2023 WL 11758750, at *18. Fuente asserts error
in the Board’s analysis.
1
Fuente primarily argues the Board erred when it con-
cluded Vaporous’s mark would be perceived by consum-
ers as a stick figure. Specifically, Fuente contends that it
was error for the Board to rely on the parties’ stipulation
as conclusive evidence that consumers would perceive the
mark as a stick figure when the stipulation (i) merely
quoted Vaporous’s own description of its mark and (ii) also
characterized the mark as a stylized X. Vaporous responds,
arguing that Fuente is bound by its stipulation—which
conceded that Vaporous’s mark is a stick figure—and that
the Board’s conclusions are supported by substantial evi-
dence.
To the extent that the Board relied on the parties’ stip-
ulated description of Vaporous’s mark as dispositive of
how consumers would perceive the mark, this reliance was
harmless error. To begin, the stipulation does not purport
to resolve how consumers will perceive the mark, which is
the perspective DuPont factor one considers. See In re
I.AM.Symbolic, LLC, 866 F.3d 1315, 1323 (Fed. Cir. 2017);
Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 203
(Fed. Cir. 1992) (comparing commercial impression of
marks from the perspective of purchasers of the goods un-
der the registrations). The stipulation merely quotes Vap-
orous’s own description of its mark from its trademark
application. Compare J.A. 133 (stipulation), with U.S.
Trademark Application Serial No. 90/192,180 (filed
Sep. 18, 2020). Further, the stipulation could at most be
understood as indicating how the parties intended the
mark to be perceived, which cannot conclusively establish
how consumers actually perceive the mark without an as-
sessment of other record evidence of consumer perception.
Cf. Schwarzkopf v. John H. Breck, Inc., 340 F.2d 978, 980
Case: 24-1460 Document: 65 Page: 6 Filed: 04/08/2026

-- 6 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 7
(C.C.P.A. 1965) (affirming Board finding of no likely confu-
sion; rejecting appellant-opposer’s reliance on a stipulation
about what the mark sought to be registered is and stating
that stipulation could not control over what record evidence
showed); Eureka Williams Corp. v. McCorquodale,
205 F.2d 155, 158 (C.C.P.A. 1953) (“Such a stipulation,
however, cannot foreclose the right of the reviewing court
to point out and observe perfectly obvious differences,
which actually exist, and which we feel were not intended
to be overlooked because of a strict limitation that might
be drawn from the language of such a stipulation.”); TMEP
§ 808.02 (“A description cannot be used to restrict the likely
public perception of a mark. A mark’s meaning is based on
the impression actually created by the mark in the minds
of consumers, not on the impression that the applicant
states the mark is intended to convey.”).
But any error in relying on the stipulation was harm-
less. Here, the Board also reached the same dissimilarity
conclusion without reference to the stipulation, and the
Board’s conclusion is supported by substantial evidence.
Decision, 2023 WL 11758750, at *18 (reaching same con-
clusion “[e]ven if [Fuente] had not stipulated that Appli-
cant’s mark is a stick figure . . . .”); see Henkel Corp. v.
Procter & Gamble Co., 560 F.3d 1286, 1289 n.2 (Fed. Cir.
2009) (error harmless considering express disavowal of re-
liance on erroneous rationale). 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 of the mark as a whole” that could be dissected from
the mark; and found that based on the record, “consumers
would not perceive [Vaporous’s] design mark as a letter X,
but as a stick figure.” Decision, 2023 WL 11758750, at *18.
This contradicts Fuente’s assertion that the Board “based
its entire similarity finding on the stipulation,” Appellant’s
Br. 28, and renders any improper reliance on the parties’
stipulation harmless. Moreover, it distinguishes the
Case: 24-1460 Document: 65 Page: 7 Filed: 04/08/2026

-- 7 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 8
Board’s analysis from Fuente’s cited, non-binding letter
mark cases, which found similarities between embellished
letter marks where the underlying letters remained dis-
tinct and were not dominated by another feature. See Ap-
pellant’s Br. 34–35; see, e.g., Textron Inc. v. Maquinas
Agricolas “Jacto” S.A., 215 USPQ 162, 164 (T.T.A.B. 1982)
(“[H]ighly stylized, highly contrasting letter/design combi-
nations tend to fall on the ‘no likelihood’ side of the adjudi-
cative balance and rather clear portrayals of the letters
involved in the compared marks tend to result in ‘likelihood
of confusion’ findings.”).
Fuente also argues the Board improperly disregarded
substantial record evidence that Vaporous’s mark would
not be perceived as a stick figure. In particular, Fuente con-
tends the “true significance” of Vaporous’s mark on con-
sumers “can only be appreciated by evaluating the record
evidence related to Vaporous’s selection, adoption, and use
of the mark,” including Vaporous’s use of the mark as part
of its larger DABX branding. Appellant’s Br. 29–34 (citing
record evidence that Vaporous selected the brand, DABX,
to evoke an X-factor so as to suggest the “associated prod-
ucts are interesting and valuable” (quoting J.A. 840)). Ac-
cording to Fuente, that evidence makes clear Vaporous’s
mark evokes an X-factor sentiment similar to Fuente’s
X marks, rather than a stick figure. We are unconvinced,
not least because Fuente now accuses the Board of errone-
ously ignoring the very evidence it previously argued the
Board could not consider:
[Vaporous] claims that because the [ mark] is
used in association with a product branded DABX
that “the meaning of [ mark] is, quite literally,
‘dab x.’” Again, [Vaporous] cannot rely on how it
uses the [ mark] in the marketplace in prescrib-
ing the meaning of the [ mark].
Opposition No. 91270800, 37 TTABVUE 20 (citation omit-
ted); see Key Pharms. v. Hercon Lab’ys Corp., 161 F.3d 709,
Case: 24-1460 Document: 65 Page: 8 Filed: 04/08/2026

-- 8 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 9
715 (Fed. Cir. 1998) (“The impropriety of asserting a posi-
tion which the trial court adopts and then complaining
about it on appeal should be obvious on its face, and liti-
gants hardly need warning not to engage in such con-
duct.”). But we are also not persuaded the Board ignored
evidence, much less relevant evidence. To the extent that
Fuente is advocating that we consider Vaporous’s use of the
mark in connection with other marks not part of the ap-
plied-for mark, we decline to do so. See Denney v. Elizabeth
Arden Sales Corp., 263 F.2d 347, 348 (C.C.P.A. 1959) (“In
determining the applicant’s right to registration, only the
mark as set forth in the application may be considered;
whether or not the mark is used with an associated house
mark is not controlling.”). The correct inquiry requires
comparison only of the applied-for mark, , to Fuente’s reg-
istered X marks. In re I.AM.Symbolic, 866 F.3d at 1324.
Further, “this court has said on multiple occasions that
failure to explicitly discuss every issue or every piece of ev-
idence does not alone establish that the tribunal did not
consider it.” Novartis AG v. Torrent Pharms. Ltd., 853 F.3d
1316, 1328 (Fed. Cir. 2017). And here the Board stated it
“considered all of the arguments and evidence of record” in
reaching its conclusions. Decision, 2023 WL 11758750,
at *18. We are not persuaded that the Board failed to con-
sider evidence in the record. Substantial evidence supports
the Board’s conclusion that consumers are likely to per-
ceive the mark as a stick figure, and we may not reweigh
the evidence on appeal. See In re NTP, Inc., 654 F.3d 1279,
1292 (Fed. Cir. 2011).
2
Fuente’s other arguments regarding factor one are un-
availing. Fuente contends the Board failed to compare the
parties’ marks regarding sound, as required by DuPont fac-
tor one. Fuente claims the Board made a blanket proposi-
tion that “every comparison of non-word marks—
irrespective of their type or appearance—‘turns on visual
Case: 24-1460 Document: 65 Page: 9 Filed: 04/08/2026

-- 9 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 10
similarity.’” Appellant’s Br. 37 (quoting J.A. 46). But
Fuente misapprehends the Board’s opinion. The Board
stated only that in the case of non-word marks, “visual dis-
similarities can be dispositive,” not that they are always
dispositive. Decision, 2023 WL 11758750, at *17 (emphasis
added). And the Board expressly considered sound, finding
that Vaporous’s mark has no pronunciation and there-
fore “does not sound like the letter X.” Id. Fuente’s cited
cases and remaining arguments to the contrary rest on the
presumption that the mark contains a distinct, separable
letter X, which the Board rejected. See Appellant’s
Br. 36–39; Nike Inc. v. WNBA Enters., LLC, 85 USPQ2d
1187, 1199 (T.T.A.B. 2007) (distinguishing cases where let-
ter is so highly stylized that it would normally be regarded
as an arbitrary design from those where the underlying let-
ter remains an “essential feature” of the mark).
Finally, Fuente argues the Board’s factor one analysis
abandoned the legal principle that where the “parties’
goods are closely related, a lesser degree of similarity be-
tween the marks may be sufficient to give rise to a likeli-
hood of confusion.” Coach Servs., 668 F.3d at 1368. And
Fuente asserts that the Board’s findings that other factors
favored a likelihood of confusion “did not alter the Board’s
improper tolerance for substantial and confusing similari-
ties between the competing marks.” Appellant’s Br. 41
(quoting Century 21 Real Est. Corp. v. Century Life of Am.,
970 F.2d 874, 877 (Fed. Cir. 1992)). But that argument as-
sumes what it aims to prove. It presupposes that substan-
tial and confusing similarities between the marks exist
when the Board found that they did not. The Board cannot
alter its tolerance for similarities between the marks if it
finds none exist.
Accordingly, substantial evidence supports the Board’s
finding that the dissimilarities between the mark and
Fuente’s X marks weigh against a likelihood of confusion.
Case: 24-1460 Document: 65 Page: 10 Filed: 04/08/2026

-- 10 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 11
B
The third and fourth DuPont factors consider the simi-
larity or dissimilarity of the parties’ trade channels and
“the conditions under which and buyers to whom sales are
made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361. The Board found that neither
Vaporous’s trademark application nor Fuente’s registra-
tions limit either party’s goods to any particular channel of
trade or class of consumer. As a result, 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.” Decision, 2023 WL
11758750, at *12. Assessing evidence in the record, the
Board then concluded that vapes and cigars “travel in over-
lapping channels of trade and, because [vapes] are consid-
ered in some respects to be an alternative to cigars, to some
of the same customers.” Id. As to the sophistication of pur-
chasers, the Board cited evidence that vaping may serve as
an introductory product for preteens and teens who later
use other, traditional nicotine products. Id. at *13. Thus,
because Vaporous’s application and Fuente’s registrations
shared overlapping channels of trade and classes of pur-
chasers, the Board concluded that DuPont factors three
and four weighed in favor of a likelihood of confusion. Id.
at *14.
On appeal, Vaporous argues the Board’s analysis is
flawed because its conclusions regarding factors three and
four conflict with reality. Vaporous emphasizes that
Fuente has signed a prior coexistence agreement with an-
other entity stating that cigar purchasers are sophisticated
and discerning consumers, and Vaporous contends that co-
existence agreement should have been given “great weight”
or “at least some tangible meaning” in this matter. Appel-
lee’s Br. 18 (quotation omitted). Further, Vaporous argues
that the Board’s presumption of overlapping channels of
trade and consumers “does not reflect reality” as Fuente’s
cigars often sell quickly and are difficult to locate. Id. at 19.
Case: 24-1460 Document: 65 Page: 11 Filed: 04/08/2026

-- 11 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 12
The Board did not err. Vaporous effectively asks us to
disregard the broad language of its application and
Fuente’s registrations when assessing DuPont factors
three and four, and to instead defer to the parties’ narrower
real-world practices. To do so would be legal error. Regis-
trability of an applicant’s mark “must be decided on the ba-
sis of the identification of goods set forth in the
application,” regardless of what the record reveals as to the
current real-world nature of the applicant’s goods, chan-
nels of trade, or class of purchasers. See Octocom Sys., Inc.
v. Houston Comp. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir.
1990) (emphasis added). And absent a binding agreement
limiting an applicant’s use of the applied-for mark to goods
in certain channels or classes of consumers, an application
with no such restrictions cannot be narrowed by evidence
that the applicant’s use is, in fact, meaningfully restricted.
See id. at 943; Stone Lion Cap. Partners, L.P. v. Lion Cap.
LLP, 746 F.3d 1317, 1323–25 (Fed. Cir. 2014). This is be-
cause it is the goods and services “recited in the applica-
tion” that “determine the scope of the post-grant benefit of
registration.” Stone Lion, 746 F.3d at 1324. Vaporous iden-
tifies no such binding agreement limiting either party’s use
of the implicated marks. The Board’s assessment of the
third and fourth DuPont factors was proper, and its find-
ings are supported by substantial evidence.
C
The fifth DuPont factor considers the fame of the senior
mark. DuPont, 476 F.2d at 1361. Fame is “a matter of de-
gree that varies along a spectrum from very strong to very
weak,” and relevant factors include “sales, advertising,
length of use of the mark, market share, brand awareness,
licensing activities, and variety of goods bearing the mark.”
Coach Servs., 668 F.3d at 1367 (cleaned up). Here the
Board assessed both the conceptual and commercial
Case: 24-1460 Document: 65 Page: 12 Filed: 04/08/2026

-- 12 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 13
strength of Fuente’s X marks under factor five.3 The Board
concluded Fuente’s X marks were arbitrary as applied to
cigars and thus conceptually strong. Decision, 2023 WL
11758750, at *15. However, the Board found the X marks
to be commercially weak because Fuente’s evidence of mar-
ketplace recognition largely depicted the letter X inte-
grated into other marks and advertising. Meaning, Fuente
failed to show that consumers independently consider the
letter “X,” standing alone, as a source indicator for Fuente.
Id. at *15–16. Balancing the X marks’ strong conceptual
strength with their weak commercial strength, the Board
concluded the X marks were entitled only to the same “pro-
tection accorded any inherently distinctive mark” and cat-
egorized factor five as neutral in the likelihood of confusion
analysis. Id. at *16, *18.
Fuente argues the Board erred by giving “no weight” to
the conceptual strength of Fuente’s X marks. Appellant’s
Br. 42. Fuente notes that not all inherently distinctive
3 Both the fifth and the sixth DuPont factors con-
sider strength. While the fifth factor considers the prior
mark’s fame in an effort to assess its strength in the mar-
ketplace, the sixth considers the existence of similar marks
on similar goods as a measure of the extent to which other
marks weaken the prior mark. Spireon, Inc. v. Flex Ltd.,
71 F.4th 1355, 1362 (Fed. Cir. 2023). Here the Board as-
sessed the commercial and conceptual strength of Fuente’s
marks under the fifth DuPont factor, but we have previ-
ously held such an analysis is proper under factor six. See
id. (“There are two prongs of analysis for a mark’s strength
under the sixth factor: conceptual strength and commercial
strength.”). Because neither party alleges error in the
Board’s consideration of commercial and conceptual
strength under factor five rather than six, and because it is
immaterial to our assessment of the Board’s substantive
analysis, this distinction is harmless.
Case: 24-1460 Document: 65 Page: 13 Filed: 04/08/2026

-- 13 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 14
marks are entitled to the same scope of protection and con-
tends the Board improperly collapsed the distinction be-
tween the tiers of distinctive marks (suggestive versus
arbitrary or fanciful) when it determined Fuente’s marks
were entitled to the same scope of protection as any inher-
ently distinctive mark. Fuente further argues the Board ig-
nored substantial record evidence showing Fuente’s
X marks were consistently promoted and independently
recognized as source identifiers.
Fuente misapprehends the Board’s opinion. The Board
did not give “no weight” to the X marks’ conceptual
strength. Rather, the Board acknowledged the X marks are
arbitrary, and thus conceptually strong, while separately
concluding that this conceptual strength is offset by the
marks’ limited commercial strength. Decision, 2023 WL
11758750, at *15–16. Nor did the Board ignore substantial
record evidence of commercial strength. Instead, the Board
weighed the record as a whole and found that the “handful
of examples of X used alone” were insufficient to find that
a “significant portion of the relevant consuming public rec-
ognizes the mark X as a source indicator for [Fuente].” Id.
at *16.
Our review of the record reaches the same conclusion.
There is some evidence that Fuente’s X marks may have
standalone source recognition. See J.A. 490, 494, 568. But
there is also substantial evidence that Fuente’s use of the
X mark has historically been integrated into other marks
or displayed alongside other terms. Fuente’s proffered evi-
dence on appeal is exemplary. See Appellant’s Br. 48 (citing
as record evidence of Fuente’s use of the X Mark the follow-
ing product line names: FORBIDDEN X, RISING X,
OPUS X PerfecXion No. 2, and OPUS X Oro Oscuro Beli-
coso XXX); see also id. at 50–57. Accordingly, though there
may be some evidence suggesting consumers could associ-
ate X, standing alone, as a source indicator for Fuente, sub-
stantial evidence nonetheless supports the Board’s finding
that the evidence submitted fails to show separate and
Case: 24-1460 Document: 65 Page: 14 Filed: 04/08/2026

-- 14 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 15
distinct recognition. The Board’s finding that DuPont fac-
tor five is neutral is therefore supported by substantial ev-
idence.
D
The sixth DuPont factor considers the “number and na-
ture of similar marks in use on similar goods.” DuPont,
476 F.2d at 1361. Vaporous suggests the Board erred un-
der DuPont factor six by assigning little weight to its sub-
mission of nine agreements demonstrating the existence of
similar marks in use on similar goods. The Board accorded
Vaporous’s evidence little weight because Vaporous failed
to submit evidence that the third-party marks were actu-
ally in use. Decision, 2023 WL 11758750, at *15 n.59. On
appeal, Vaporous disagrees with the Board’s rationale and
identifies record evidence of present use as to one third-
party mark.
While the Board’s statement that Vaporous failed to
submit any evidence of use may have been in error, its over-
all assignment of little probative weight to the evidence
was not. Vaporous’s evidence of a single third-party mark
in use is insufficient to demonstrate a crowded field of sim-
ilar marks sufficient to suggest consumers are accustomed
to carefully distinguishing between such marks. See Apex
Bank v. CC Serve Corp., 156 F.4th 1230, 1235 (Fed. Cir.
2025). As such, we see no error in the Board’s assignment
of “little probative weight” to Vaporous’s evidence. Deci-
sion, 2023 WL 11758750, at *15 n.59.
E
Finally, we consider the Board’s weighing of the
DuPont factors. Fuente asserts the Board failed to explain
its balancing of the DuPont factors such that this court can-
not reasonably discern the Board’s rationale. Not so—the
Board’s path is discernable: As Fuente concedes, the Board
concluded all but one DuPont factor was neutral or favored
a likelihood of confusion. The Board’s finding that,
Case: 24-1460 Document: 65 Page: 15 Filed: 04/08/2026

-- 15 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 16
nonetheless, there was no likelihood of confusion between
the parties’ marks thus necessitates the conclusion that it
considered factor one—the similarity or dissimilarity of the
marks—sufficient, on its own, to find no likelihood of con-
fusion. This is enough for us to discern the Board’s path to
dismissal. See In re Charger Ventures LLC, 64 F.4th 1375,
1384 (Fed. Cir. 2023) (“We will, nevertheless, uphold a de-
cision of less than ideal clarity if the agency’s path may rea-
sonably be discerned.” (cleaned up)).
Arguing against this path to dismissal, Fuente sepa-
rately contends the Board legally erred in giving disposi-
tive weight to the dissimilarity of the marks under DuPont
factor one and failing to give sufficient weight to the other
factors favoring a likelihood of confusion. We are not con-
vinced. The likelihood of confusion analysis is a balancing
test, and a single DuPont factor “may be dispositive,” espe-
cially where, like here, “that single factor is the dissimilar-
ity of the marks.” Champagne Louis Roederer, S.A. v.
Delicato Vineyards, 148 F.3d 1373, 1375 (Fed. Cir. 1998).
Therefore, 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 was likely, especially given the Board’s finding
that the marks differed noticeably in sound, appearance,
connotation, and commercial impression. See Decision,
2023 WL 11758750, at *17 (“Notwithstanding that part of
the figure is in the shape of a letter X, a stick figure is a
representation of a human being and so differs from a let-
ter of the alphabet visually, and in connotation, and com-
mercial impression.”); Odom’s Tenn. Pride Sausage, Inc. v.
FF Acquisition, L.L.C., 600 F.3d 1343, 1346–47 (Fed. Cir.
2010). We agree with the Board that the differences be-
tween the marks outweigh all other relevant DuPont fac-
tors.
Case: 24-1460 Document: 65 Page: 16 Filed: 04/08/2026

-- 16 of 17 --

FUENTE MARKETING LTD. v. VAPOROUS TECHNOLOGIES, LLC 17
III
We have considered the parties’ remaining arguments
and find them unconvincing. The Board’s factual findings
are supported by substantial evidence, and Fuente fails to
demonstrate harmful error in its legal conclusions. For the
reasons above, we affirm the Board’s decision.
AFFIRMED
Case: 24-1460 Document: 65 Page: 17 Filed: 04/08/2026

-- 17 of 17 --