At the USPTO, likelihood of confusion between marks under Section 2(d) is analyzed under the DuPont factors. See B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 145 (2015) (citing In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973)). In any given case, different DuPont factors may play a dominant role while some factors might not be relevant to the analysis. Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367, 1370 (Fed. Cir. 2002); In re Charger Ventures LLC, 64 F.4th 1375, 1381 (Fed. Cir. 2023).

Sometimes, the second DuPont factor, the “similarity or dissimilarity and nature of the goods or services as described in an application or registration,” DuPont, 476 F.2d at 1361, is dispositive. See In re Zhenhai Petrochemical Jianan Engineering Co., Ltd., Ser. No. 79381020 (TTAB Feb. 5, 2026).

The TTAB considered a Section 2(d) refusal of Zhenhai's SPINFLOW & Design mark for “heat exchangers … for industrial use” in view of the registered mark SPINFLOW for “vacuum cleaners.” While the marks were found to be “very similar,” the goods were quite different. 

A “heat exchanger” is a device used to transfer heat from a fluid flowing on one side of a barrier to a fluid or fluids flowing on the other. 

But vacuums are used for cleaning and industrial heat exchangers are used for temperature regulation, and these are not complementary goods that consumers would seek out for the same purpose. See In re Martin's Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1567 (Fed. Cir. 1984) (bread and cheese complementary products, often used in combination). 

Another way of showing that consumers perceive two types of goods to be related is to show that third-party companies provide both under the same mark because the more consumers see companies offering their goods under one mark, the more likely they are to perceive those goods as emanating from a common source. See In re Detroit Ath. Co., 903 F.3d 1297, 1306 (Fed. Cir. 2018). 

In the context of large online and brick-and mortar retailers offering a wide variety of products bearing the brands of others, while relevant to channels of trade, would fail to show that goods are similar or related in the sense that matters for likelihood of confusion purposes. “[I]f the goods or services in question are not related or marketed in such a way that they would be encountered by the same persons in situations that would create the incorrect assumption that they originate from the same source, then, even if the marks are identical, confusion may not be likely.” TMEP § 1207.01(a)(i) (citing inter alia Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1371 (Fed. Cir. 2012); Shen Mfg. Co., Inc. v. Ritz Hotel, Ltd., 393 F.3d 1238, 1245 (Fed. Cir. 2004)).

Furthermore, where “third-party distributors and retailers offer their vacuum cleaners and heat exchangers under different categories online,” they “would presumably display them in different aisles of brick-and-mortar stores, as they serve distinctly different purposes—cleaning versus heat transfer.” 

The TTAB concluded “the respective goods are offered in overlapping broad channels of trade, but understand that the goods would not tend to be displayed in proximity to one another. Cf. Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, *25 (TTAB 2022) (side by side display). 

And, given the disparity in the goods, the TTAB would not presume that their classes of purchasers would be the same, citing Electronic Design & Sales, Inc. v. Electronic Data Sys. Corp., 954 F.2d 713, 717 (Fed. Cir. 1992). 

Moreover, the TTAB found that the “inherent nature” of heat exchangers for industrial use “would necessitate lengthy evaluation before purchase, lessening any likelihood of confusion.” 

Thus, while the marks were quite similar, the goods are “manifestly dissimilar” and “so different in kind that purchasers are unlikely to believe they emanate from a single source.” Concluding that “[t]he difference in the goods … is dispositive on the issue of likelihood of confusion,” North Face Apparel Corp. v. Sanyang Indus. Co., No. 77375588, 2015 WL 6467820, *18 (TTAB 2015); the TTAB reversed the Section 2(d) refusal.

As a side note, the appeal brief apparently argued that the SPINFLOW mark was not merely descriptive, even though that was never asserted as a basis for refusing registration. Describing this as “irregular,” the TTAB exercised its discretion to consider the likelihood-of-confusion arguments made in the reply brief to the Examining Attorney's brief that addressed the applicable DuPont factors for likelihood of confusion, as well as the responses to the Section 2(d) refusal set forth in the Office Actions.