Actual confusion is not required in order to establish likelihood of confusion, but the USPTO considers the nature and extent of any actual confusion under the seventh DuPont factor. See Brooklyn Brewery Corp. v. Brooklyn Brew Shop, No. 91223982, 2020 WL 4673282, at *24 (TTAB 2020), aff'd in relevant part, vacated in part, 17 F.4th 129 (Fed. Cir. 2021) (citing Edom Labs., Inc. v. Lichter, No. 91193427, 2012 WL 1267961, at *9 (TTAB 2013) (“The existence of actual confusion is normally very persuasive evidence of likelihood of confusion and undercuts any possible claim that the marks are so dissimilar that there can be no likelihood of confusion.”). 

Recently, in Agricultural Utilization Research Institute v. Ejec Ventures, LLC, Opposition No. 91292154 (TTAB Oct. 8, 2026), the Board was unimpressed by 102 emails and phone calls of purported actual confusion. 

Many of these emails sent by prospective resellers of unspecified products were generic “form” emails were solicitations offering services rather than customer emails. 

     The Board has long recognized that persuasive evidence of actual confusion must show confusion as to source or sponsorship, not mere carelessness in attempts to contact a business. See, e.g., Malt-O-Meal Co. v. Little Crow Milling Co., 1965 WL 6595, at *2 (TTAB 1965) (“The several instances of misdirected mail to which opposer refers could well have been occasioned by carelessness, inattentiveness or to some other circumstance, and, since the persons responsible therefor[ ] were not called as witnesses for opposer and made subject to cross-examination by counsel for applicant, it cannot be said that they were in fact occasioned by any similarity between the marks.”). See also J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:14 (5th ed.) (Sept. 2026 update) (“there is the possibility that emails were misdirected by people ‘because they were inattentive or careless, as opposed to being actually confused.'”) (quoting Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 636 (6th Cir. 2002)).

     It is entirely plausible that these “form” emails were what Applicant called “blind, mass-solicitation blasts from third-party resellers,” 42 TTABVUE 37, but even assuming that the senders were only trying to reach Applicant to purchase nutritional supplements in the form of gummies for resale, we find on this record that it is more likely than not that they reached Opposer because they searched the Internet using “Auri,” or a search term containing “Auri,” and selected Opposer's website at its auri.org address rather than Applicant's website at the less intuitive tryauri.com address. 

There were, however, four emails from consumers. 

     There is no doubt that the senders of the four emails discussed above were trying to reach Applicant regarding prior purchases from Applicant of nutritional supplements in the form of gummies, but the record evidence regarding Opposer's receipt of the emails again begs the questions of how and why the senders contacted Opposer at auri.org rather than Applicant at tryauri.com. All of the consumer senders of these emails stated that they had previously purchased nutritional supplements in the form of gummies from Applicant, but only one reported having received the product.  

***

     We again find that it is more likely than not that the four consumer senders of emails to Opposer reached Opposer because they searched the Internet for “Auri” and selected Opposer's website at auri.org. There is again no evidence that Opposer reached out to any of these consumers to determine why and how they contacted Opposer, and “without direct testimony from the supposedly confused individuals . . . there is insufficient evidence to ascertain what they were thinking, or whether they were actually confused.” Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019 WL 4877349, at *11 (TTAB 2019). “This is not evidence of actual confusion (a mistaken perception of a purchaser about the source or sponsorship of the goods), and is entitled to no weight.” Id. We cannot infer that the consumers reached Opposer because they believed Opposer to be the source of the products that they had purchased rather than because they were careless in trying to find Applicant's email address on the Internet.

Next, voicemail messages and summaries of phone calls were considered. 

     There is again no doubt that the callers were trying to call Applicant, but we are again confronted with the issue of why they called Opposer instead. Mr. Johansen testified on cross-examination that the contact form on Applicant's website does not contain a telephone number, and that he was not sure that a telephone number appeared elsewhere on the site, Johansen Cross Tr. 32:3-10 (34 TTABVUE 13), and, as discussed above, Applicant's packaging and the websites of its two primary resellers also do not appear to provide Applicant's telephone number. Ms. Voegele confirmed that Opposer has done no formal investigation of the calls and emails, Voegele Cross Tr. 44:13-17 (21 TTABVUE 46), and the only evidence in the record explaining exactly why a caller called Opposer rather than Applicant is the voicemail from the caller who said that she had “googled AURI Contact and my info came up.” Voegele Cross Tr. 26:10-11 (21 TTABVUE 28).

     We find this to be the most plausible explanation for all of the misdirected voicemail messages. Many of the callers had received at least one package of Applicant's nutritional supplements in the form of gummies and could reasonably have been expected to refer, in the first instance, to the package for Applicant's contact information, including a telephone number, but it does not appear that such contact information is available. In the absence of such information on the package (or in the absence of the package itself), the logical next step is one familiar to everyone who owns a mobile phone—to use the Internet as a modern-day online telephone directory. 

***

     There is again “insufficient evidence to ascertain what [the callers] were thinking, or whether they were actually confused.” Double Coin Holdings, 2019 WL 4877349, at *11. On this record, we cannot infer that the callers reached Opposer because they believed Opposer to be the source of the gummies that they had purchased rather than because they were careless in trying to find Applicant's telephone number on the Internet.

While quantity may have a quality all its own, “evidence of actual confusion ‘is too important to be established by means of an inference, unsupported by corroborating evidence.'” Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, No. 92051006, 2014 WL 1390528, at *26 (TTAB 2014) (quoting Toys “R” Us, Inc. v. Lamps R Us, No. 91065977, 1983 WL 50152, at *8 (TTAB 1983)).

The number of misdirected emails and calls here is substantial, but in this context quantity does not have a quality all its own. On this record, the contacts are at least equally consistent with inattention and carelessness on the part of the senders and callers in using the Internet to locate Applicant as they are with the actual mistaken belief that Opposer sells Applicant's gummies . . .

Accordingly, the seventh DuPont factor was deemed neutral, and the Board concluded there was no likelihood of confusion, because, although the marks are similar, the parties' respective goods and services have not been shown to be related, and they are not offered through overlapping channels of trade to overlapping consumers.