In determining likelihood of confusion between an applied-for mark and an existing registered mark, the TTAB considers the “similarity or dissimilarity and nature of the goods or services as described in an application or registration,” the “similarity or dissimilarity of established, likely-to-continue trade channels,” and “the conditions under which and buyers to whom sales are made, i.e. ‘impulse' vs. careful, sophisticated purchasing.” In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”); see also In re Detroit Athletic Co., 903 F.3d 1297, 1306 (Fed. Cir. 2018). 

The nature of the goods, channels of trade and classes of consumers are based on the goods as identified in the Application and the Registration. Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937, 942 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an applicant's mark must be decided on the basis of the identification of goods set forth in the application regardless of what the record may reveal as to the particular nature of an applicant's goods, the particular channels of trade or the class of purchasers to which sales of the goods are directed.”). 

In Straight Arrow Products, Inc. v. Willette Manigault and Mane Esteem, LLC, Opposition No. 91266129 (TTAB Sept. 25, 2025), the TTAB dismissed an opposition to the applied-for MANE ESTEEM mark for hair care products and hair salon services, based on the registered MANE 'N TAIL mark for hair care products for humans and domestic animals, because of the weakness of the term “MANE” and the dissimilarities in the marks at issue. 

Because there is “an inherent relationship” between hair care products and applicant's “hair styling, hair care services, advice relating to hair care, and providing advice and information in the fields of hairstyling, haircare, and hair maintenance” and presuming that hair care products are sold and used in hair salons, the TTAB found that the second, third, and fourth DuPont factors weighed in favor of finding a likelihood of confusion.

But the TTAB concluded that MANE is descriptive of a characteristic of applicant's hair care products and services based on dictionary evidence that the word “mane” can mean both “[t]he long hair along the top and sides of the neck of certain mammals, such as a horse or male lion,” and also “[a] long thick growth of hair on a person's head.” 

The MANE 'N TAIL mark was registered on the Principal Register, with no claim of acquired distinctiveness under Section 2(f), so it was presumed to be inherently distinctive, i.e., that it is at least suggestive of the goods. But, while at least suggestive as a whole, the MANE component in the Opposer's MANE 'N TAIL mark was found to be descriptive and thus conceptually weak.  

In addition to conceptual strength which is a measure of a mark's distinctiveness; a mark's strength, or weakness, also includes commercial strength which “is the marketplace recognition value of the mark.” Spireon, Inc. v. Flex LTD, 71 F.4th 1355, 1362 and 1363 (Fed. Cir. 2023) (citation omitted); In re Chippendales USA, Inc., 622 F.3d 1346, 1353 (Fed. Cir. 2010) (“A mark's strength is measured both by its conceptual strength … and its marketplace strength ….”); Bridgestone Ams. Tire Opers., LLC v. Fed. Corp., 673 F.3d 1330, 1336 (Fed. Cir. 2012) (“The prolonged exclusive use of these marks, the extensive promotion and marketing, the billions of dollars in sales, of tires bearing these marks, shows commercial strength.”). 

Commercial strength lies on a “spectrum” which ranges from “very strong to very weak.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1324-1325 (Fed. Cir. 2017) (quoting In re Coors Brewing Co., 343 F.3d 1340, 1344 (Fed. Cir. 2003)); see also Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340 (Fed. Cir. 2015) (noting the strength of a mark “varies along a spectrum from very strong to very weak”). The stronger the mark, the greater the scope of protection. Kenner Parker Toys Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 352 (Fed. Cir. 1992) (“[S]trong marks enjoy a wide latitude of legal protection.”).

Here, the Opposer's sales data either referred to “M&T” or to no product names at all, and there was no supporting testimony that these products were sold under the MANE 'N TAIL mark. The TTAB noted that there was supporting testimony indicating that all of Opposer's products were offered in connection with its MANE 'N TAIL mark. Absent supporting testimony or context, Opposer's evidence has “very little probative value.” The TTAB also criticized Opposer for using the rebuttal testimony period to merely “add[] to its proofs made as part of its case in chief.”  

While acknowledging that Opposer's MANE 'N TAIL mark may have acquired some degree of brand recognition strength, the TTAB found too many deficiencies in Opposer's evidence on the record that precluded finding that the MANE 'N TAIL mark is entitled to an expanded scope of protection under the fifth DuPont factor. 

The Applicant, on the other hand, introduced evidence of third-party marketplace use is “to show that customers have become so conditioned by a plethora of such similar marks that customers ‘have been educated to distinguish between different [such] marks on the bases of minute distinctions.'” Omaha Steaks Int'l v. Greater Omaha Packing Co., 908 F.3d 1315, 1324 (Fed. Cir. 2018) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1374 (Fed. Cir. 2005)); accord Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 1373 (Fed. Cir. 2015); Juice Generation, 794 F.3d at 1338-39 (“The weaker an opposer's mark, the closer an applicant's mark can come without causing a likelihood of confusion and thereby invading what amounts to its comparatively narrower range of protection.”). “Extensive evidence of third-party use and registrations is ‘powerful on its face,' even where the specific extent and impact of the usage has not been established.” Jack Wolfskin, 797 F.3d at 1373-74 (quoting Juice Generation, 794 F.3d at 1339); Spireon, 71 F.4th at 1364. 

     In total, Applicant properly entered into the record twenty-six examples of the term MANE used in connection with a hair care product or service. In some cases, the word MANE additionally appears in text on the websites, as a synonym for hair (“maintain their extensions and natural manes,” “let your mane grow like never before,” “welcome to your mane home,” “need some mane lovin [sic],” “all the mane things you need,” “mane merch,” and “maintain a luxurious mane”). 

     We find that the evidence of third-party use in connection with hair-related businesses, hair salons, and hair care products, significantly limits the scope of protection for the MANE term in Opposer's mark. See Jack Wolfskin, 797 F.3d at 1373; see also Juice Generation, 794 F.3d at 1338-1339.

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     Despite some degree of brand recognition strength developed by Opposer for its MANE 'N TAIL mark, we find that the MANE portion of Opposer's mark is so conceptually or inherently weak and diluted by third party use that it will not act as a bar to the registration of every mark that includes the word MANE. “[I]t will only bar the registration of marks as to which the resemblance to [MANE 'N TAIL] is striking enough to cause one seeing it to assume that there is some connection, association or sponsorship between the two.” Anthony's Pizza & Pasta Int'l Inc. v. Anthony's Pizza Holding Co., Opp. No. 91171509, 2009 TTAB LEXIS 718, at *25-26 (TTAB 2009), aff'd, 415 Fed. Appx. 222 (Fed. Cir. 2010) (internal quotation omitted).

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     Under the first DuPont factor, we find that the dissimilarity of the marks in sound, appearance, connotation, and commercial impression to be crucial insofar as this dissimilarity, in conjunction with the conceptual and commercial weakness of the only shared element of the marks (i.e., MANE) outweighs the other DuPont factors. See Oakville Hills Cellar, Inc. v. Georgallis Holdings, LLC, 826 F.3d 1376, 1381-82 (Fed. Cir. 2016) (“a single du Pont factor may be dispositive in a likelihood of confusion analysis, especially when that single factor is the dissimilarity of the marks”); Odom's Tenn. Pride Sausage, Inc. v. FF Acquisition, LLC, 600 F.3d 1343, 1346-47 (Fed. Cir. 2010) (“[E]ven if all other relevant DuPont factors were considered in [opposer's] favor, as the board stated, the dissimilarity of the marks was a sufficient basis to conclude that no confusion was likely.”).

Accordingly, the TTAB dismissed the opposition.