For likelihood of conusion under Section 2(d), the strength or weakness of a trademark is considered under the sixth DuPont factor. See Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023). “[T]he strength of a mark is not a binary factor” and “varies along a spectrum from very strong to very weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340 (Fed. Cir. 2015) (internal citations omitted). “The weaker [the cited] 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.” Id. at 1338 (internal citations omitted).

Third-party use may be “relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection.” Omaha Steaks Int'l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1324 (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1373 (Fed. Cir. 2005). 

The TTAB recently found that "sycamore" was weak for tax and financial serivces based on over twenty (20) third-party uses of SYCAMORE-formative marks for financial planning or tax-related services. In re Sycamore Growth Group, LLC, Ser. No. 98125231 (TTAB May 8, 2025). The TTAB found that the number of third-party marks incorporating SYCAMORE in connection with tax and financial services was “powerful on its face,” citing Juice Generation, 794 F.3d at 1338.

The third-party uses support that consumers have become conditioned to distinguish between different SYCAMORE-formative marks based on minute distinctions. See Palm Bay Imps., 396 F.3d at 1374. In addition, the over twenty thirdparty uses indicate that SYCAMORE has a significance in the financial and tax fields. Juice Generation, 794 F.3d at 1338 (extensive third-party use and registration is “powerful on its face”). To this end, the dictionary definition of SYCAMORE – a very large spreading tree – indicates the term is likely used by so many in connection with tax and financial services because it conveys the concept of a strong financial strategy and growing wealth.

The TTAB found that the conceptual weakness of the mark SYCAMORE CAPITAL under the sixth DuPont factor weighed heavily against finding a likelihood of confusion and was dispositive. See also In re Hartz Hotel Servs., No. 76692673, 2012 WL 1193704, at *6 (TTAB 2012) (finding the sixth DuPont factor dispositive). The record demonstrated that consumers are able to distinguish among numerous SYCAMORE-formative marks for tax and financial services based on the presence of additional wording – even descriptive or generic wording. Thus, the TTAB concluded that Applicant's mark SYCAMORE GROWTH GROUP for “tax consulting services in connection with identifying tax credits” is not likely to cause confusion with the mark SYCAMORE CAPITAL for “financial services, namely, financial management, investment advice, mutual fund investment, financial planning services, and investment management services.”