The word “the” often plays little to no importance for purposes of distinguishing otherwise similar trademarks; but this proposition “is not universally true.” Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 1245 (Fed. Cir. 2004) (reversing a Board decision and holding word “the” in the mark THE RITZ KIDS helps distinguish from the mark RITZ). 

In Proximo Spirits, Inc. v. West Road Spirits LLC, Cancellation No. 92080766 (TTAB July 17, 2025), Proximo Spirits opposed the mark SEXTO for tequila (i.e., "distilled agave liquor") for likelihood of confusion with its registered THE SEXTON mark for whiskey. 

The TTAB found that third-party use and registration evidence established that tequila and whiskey are "the types of alcoholic beverages that emanate from the same source"; and that THE SEXTON was "conceptually strong because the term is arbitrary in connection with whiskey."

But the marks were found to be dissimilar because THE SEXTON "has a specific meaning in English," namely “a church officer or employee who takes care of the church property and performs related minor duties (such as ringing the bell for services and digging graves)”; whereas SEXTO has no meaning in English but means "sixth" in Spanish.  

As to the word "THE"—while "consumers may not look to the word 'the' in Petitioner's mark for source-identification purposes, the word reinforces the connotation of the 'sexton' occupation by conjuring a particular person holding this position."

In other words, as a definite article, the “the” in Petitioner's mark will be understood identifying a specific individual holding the occupation of sexton.

Notwithstanding the "visual similarity between the marks inasmuch as Respondent's mark SEXTO is merely one letter away from SEXTON," the omission of the letter "N" at was "significant because consumers are unlikely to view the mark as a misspelling of SEXTON."

Rather, as mentioned, consumers are likely to perceive SEXTO as an unknown term, possibly a combination of the words SEX and TO, or if consumers understand Spanish, they will understand it to mean “sixth.”

The "significant difference between the marks," the TTAB concluded "outweighs the aforementioned factors favoring a finding of a likelihood of confusion," so the opposition was dismissed.