Under the first DuPont factor, the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression is considered. In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”);see also Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). And dissimilarity in one of these elements may be sufficient to make marks that are similar or even identical in other elements dissimilar in overall commercial impression. See Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012) (“[e]ven where the marks at issue are identical, or nearly identical, the Board has found that differences in connotation can outweigh visual and phonetic similarity.”) (citations omitted). “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 impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No. 91270181, 2024 WL 1638376, at *5 (TTAB 2024) (quoting Coach Servs., 668 F.3d at 1368). “The focus is on the recollection of the average purchaser, who normally ‘retains a general rather than a specific impression of marks.'” Id. (quoting In re i.am.symbolic, llc, No. 85916778, 2018 WL 3993582, at *4 (TTAB 2018) (citations omitted)).

“[S]imilarity is not a binary factor, but is a matter of degree.” In re St. Helena Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d 1340, 1344 (Fed. Cir. 2003)). Where the involved goods are legally identical, a lesser degree of similarity between the marks is required for confusion to be likely. Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992) (“When marks would appear on virtually identical goods or services, the degree of similarity necessary to support a conclusion of likely confusion declines.”).

The TTAB recently reversed a refusal to register BRECKIN ANKLES (with "ankles" disclaimed) for various clothing items "used in relation to basketball" including tops and bottoms in view of a stylized BREKENS B registration for clothing items including tops and pants. In re Andrew Riess, Ser. No. 98436600 (TTAB July 23, 2026). 

With respect to meaning, the TTAB found that the applied-for BRECKIN ANKLES mark would likely be understood as a slang variant of the phrase “Breaking Ankles” when used in connection with clothing items “to be used in relation to basketball” and “basketball accessories”--namely to cause a player to stumble--whereas the cited BREKENS B mark would likely be understood to be a name, particularly given the presence of the initial “B” in close proximity to BREKENS in the mark. 

... [I]t is unlikely that in the context of Applicant's BRECKIN ANKLES mark as a whole, the lead word BRECKIN would be understood by consumers of basketball-related goods to be a name even though the record shows that it is one. Instead, the mark as a whole connotes to consumers of clothing items “to be used in relation to basketball” and “basketball accessories” that they will be able to figuratively break their opponents' ankles while playing basketball wearing Applicant's goods. We find that the marks are quite dissimilar in connotation and commercial impression.

     The marks, considered in their entireties, are somewhat dissimilar in appearance and sound, and quite dissimilar in connotation and commercial impression. The first DuPont factor strongly supports a conclusion that confusion is not likely.

In addition, while the dominant word BRECKIN in Applicant's mark may resemble the word BREKENS in the cited mark, the presence of the word ANKLES in Applicant's mark makes the marks, in their entireties, slightly dissimilar in appearance. 

Although the word ANKLES has been disclaimed in Applicant's mark, “confusion is evaluated from the perspective of the purchasing public, which is not aware that certain words or phrases have been disclaimed.” In re Detroit Athletic Co., 903 F.3d 1297, 1304-05 (Fed. Cir. 2018) (quoting Shen Mfg. Co. v. Ritz Hotel, Ltd., 393 F.3d 1238, 1243 (Fed. Cir. 2004) and citing In re Nat'l Data Corp., 753 F.2d 1056, 1059 (Fed. Cir. 1985) (“The public is unaware of what words have been disclaimed during prosecution of the trademark application at the PTO.”)). 

Even though the the identical nature of the goods reduced the degree of similarity between the marks that is required for confusion to be likely, the differences of the marks in their entireties nonetheless weighed heavily against finding a likelihood of confusion.