Southwest Financial Federal Credit Union

This Opinion is Not a Precedent of the TTAB Mailed: January 6, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

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Trademark Trial and Appeal Board _____

In re Southwest Financial Federal Credit Union _____

Serial No. 98427873

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Darin M. Klemchuk of Klemchuk PLLC for Southwest Financial Federal Credit Union.

Colleen Orscheln, Trademark Examining Attorney, Law Office 132, Brandon Marsh, Managing Attorney.

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Before Heasley, Larkin, and Allard,

Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:

Southwest Financial Federal Credit Union ("Applicant") seeks registration on the Principal Register of the standard-character mark SOUTHWEST FINANCIAL EXPERIENCE BETTER BANKING for services ultimately identified as follows:

Credit union services; Financial services, namely, banking services featuring financing loans for consumers;

installment loans; savings account services; financing

loans for automobiles; providing personal lines of credit; Financial services, namely, banking services featuring

checking account services; Banking services featuring the provision of individual retirement account services;

banking services provided via electronic device access

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allowing a consumer to use a telephone number to conduct basic banking transactions; audio response account access being automated teller machine services; Financial services, namely, banking services featuring issuing of credit cards; banking services provided via personal computer account access; Financial services, namely, banking services featuring providing money market deposit accounts, and issuing debit cards; financial services, namely, banking services for electronic check acceptance services; Financial services, namely, banking services for financing loans for a mortgage in International Class 36.¹

The Examining Attorney has refused registration of Applicant's mark on two grounds. First, the Examining Attorney has refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant's mark so resembles two registered marks, the standard-character mark PACIFIC SOUTHWEST FINANCIAL, registered on the Principal Register for the following services in International Class 36:

Financial analysis and consultation; financial

management and investment in the fields of asset

allocation and management, cash management, estates,

college funding, retirement, insurance and investment;

insurance consultation and brokerage; financial support

services, namely, providing consultation to professionals in an [sic] variety of disciplines, namely, taxation,

accountancy, underwriting, actuary;²

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and the standard-character mark EXPERIENCE BETTER BANKING (BETTER BANKING disclaimed), registered on the Principal Register for the following services in International Class 36:

banking; on-line banking services; credit union services;

mortgage banking; electronic funds transfer; electronic

payment, namely, electronic processing and transmission

of bill payment data; account payment and monitoring

services, namely, bill payment services; financial portfolio management; financial information provided by electronic

means; financial information processing; investment

management, consultation, and brokerage; automated

financial clearing house; financial clearing house;

providing financial account management and information;

providing financial account balancing via a global

computer network and telecommunications networks;

providing web pages featuring information about utility

bill payment and consolidation services;³

as to be likely, when used in connection with the services identified in the application, to cause confusion.

Second, the Examining Attorney has refused registration under Sections 2(e)(2) and 6(a) of the Trademark Act, 15 U.S.C. §§ 1052(e)(2) and 1056(a), on the ground that the words SOUTHWEST FINANCIAL in Applicant's mark are primarily geographically descriptive of the identified services, and must be disclaimed.⁴

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Applicant appealed when the Examining Attorney made the refusals final. Applicant and the Examining Attorney have filed briefs.⁵We affirm the refusal to register under Section 2(d) and do not reach the disclaimer refusal. In re Princeton Equity Grp. LLC, Ser. No. 97397212, 2025 WL 1638891, at *4 (TTAB 2025).

I. Prosecution History and Record on Appeal⁶ Applicant originally sought registration of its mark based on a specimen consisting of multiple pages from its website at swfinancial.org.⁷The Examining Attorney issued an Office Action refusing registration based on the two cited registrations, requiring an amendment to Applicant's identification of services, and requiring disclaimers of SOUTHWEST FINANCIAL and BETTER BANKING.⁸The Examining Attorney made of record USPTO electronic records regarding the cited registrations,⁹pages from the websites of Wells Fargo, Bristol County Savings Bank, outstanding, and must cite the rule(s) and/or statute(s) that provide the basis for these refusals or requirements.")

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and BNC National Bank,¹⁰and an entry from Brittanica.com captioned

"Southwest."¹¹ Applicant responded by purporting to amend its identification of services, and arguing against the two refusals.¹²Applicant made of record pages from the website at bankrate.com regarding the differences between banks and credit unions,¹³and pages from Applicant's website.¹⁴

The Examining Attorney then issued an Office Action making final the three refusals to register,¹⁵but limiting the disclaimer requirement to the phrase SOUTHWEST FINANCIAL.¹⁶The Examining Attorney made of record pages from the websites of Citizens Bank, KeyBank, PNC, Regions, and Truist.¹⁷

II. Analysis of Likelihood of Confusion Refusal

"The Trademark Act prohibits registration of a mark that so resembles a registered mark as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion [or] mistake, or to deceive." In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). Our determination of the likelihood of confusion under Section 2(d) of the Trademark Act is based on an

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analysis of all probative facts in the record that are relevant to the likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) ("DuPont"). Charger Ventures, 64 F.4th at 1379. We consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).

"Two key factors in every Section 2(d) case are the first two factors regarding the similarity or dissimilarity of the marks and the goods or services, because the fundamental inquiry mandated by §2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks." DC Comics

v. Cellular Nerd LLC, Opp. No. 91246950, 2022 WL 17832492, at *10 (TTAB 2022) (internal quotations and quotation marks omitted).

Applicant argues that the most relevant DuPont factors are

(1) Applicant's Mark is sufficiently dissimilar from the Cited Mark; (2) Applicant's goods [sic] and services are sufficiently dissimilar from those offered in connection with the Cited Mark, particularly in light of the differences between the marks; (3) purchasers of Applicant's services are likely to be sophisticated in the relevant domain, carefully discerning when making relevant purchases; and (4) the Parties have co-existed in the marketplace without actual confusion for many years.

4 TTABVUE 9. This argument invokes the first, second, fourth, and eighth DuPont factors.

In our analysis of the likelihood of confusion, we will focus on cited Registration No. 4529867 (the "'867 Registration") of the mark EXPERIENCE BETTER BANKING for various services in Class 36, including services that are literally or

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legally identical to the services identified in the involved application.¹⁸If we find a likelihood of confusion as to that mark and the services for which it is registered, we need not find it as to the cited PACIFIC SOUTHWEST FINANCIAL mark and the services for which it is registered. In re Max Cap. Grp. Ltd., Ser. No. 77186166, 2010 WL 22358, at *2 (TTAB 2010).

A. Similarity or Dissimilarity of the Services, Channels of Trade, and Classes of Consumers

"The second DuPont factor considers '[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration . . . ." In re Detroit Athletic Co., 903 F.2d 1297, 1306 (Fed. Cir. 2018). "This factor considers whether 'the consuming public may perceive [the goods or services] as related enough to cause confusion about the source or origin of the goods or services. '" In re St. Helena Hosp.,

774 F.3d 747, 752 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002)). "In analyzing the services, the Board considers '[t]he similarity or dissimilarity and nature of the services as described in an application or registration.'" In re OSF Healthcare Sys., Ser. No. 88706809, 2023 WL 6140427, at *4 (TTAB 2023) (quoting In re Embiid, Ser. No. 88202890, 2021 WL 2285576, at *10 (TTAB 2021)).

The "'services need not be identical or even competitive to find a likelihood of confusion.'" Id. (quoting In re Country Oven, Inc., Ser. No. 87354443, 2019 WL

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6170483, at *2 (TTAB 2019)).¹⁹"They need only be 'related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that [they] emanate from the same source." Id. (quoting Country Oven, 2019 WL 6170483, at *2 (quoting Coach Servs., Inc. v. Triumph Learning LLC,

668 F.3d 1356, 1369 (Fed. Cir 2012) (internal quotation omitted)). The relatedness of goods or services may be established based on (1) the language of the involved identifications of goods or services, which may show, on the face of the identifications, that the goods or services are literally or legally identical, or otherwise intrinsically related, and (2) evidence of third-party uses or registrations, which may show that the identified goods or services are commonly offered by the same entity under the same mark.

Evidence of relatedness may include news articles or

evidence from computer databases showing that the

relevant goods [or services] are used together or used by

the same purchasers; advertisements showing that the

relevant goods [or services] are advertised together or sold

by the same manufacturer or dealer; or copies of prior use-

based registrations of the same mark for both applicant 's

goods [or services] and the goods [or services] listed in the

cited registration [and] [t]he application and registration

themselves may provide evidence of the relationship

between the [goods or] services.

Id. at *4 (quotations and citations omitted).

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The Examining Attorney cites third-party use evidence of relatedness,²⁰but the record shows that many of the services identified in the '867 Registration and in the application are literally or legally identical based on the language of the identifications, and we need not rely on the third-party use evidence to find relatedness.²¹

"[W]e must construe the services identified in the registration as broadly as reasonably possible 'to include all [services] of the nature and type described therein,'" OSF Healthcare, 2023 WL 6140427, at *5 (quoting In re Solid State Design Inc., Ser. No. 87269041, 2018 WL 287909, at *6 (TTAB 2018) (internal quotation omitted)), and "we must resolve any ambiguities regarding their coverage in favor of the cited registrant 'given the presumptions afforded the registration under Section 7(b)' of the Trademark Act." Id. (quoting In re C.H. Hanson Co., Ser. No. 77983232, 2015 WL 6121759, at *5 (TTAB 2015) (citing 15 U.S.C. § 1057(b)). "[W]e must also

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give the services identified in the application their full scope in our analysis of the second DuPont factor." Id. (citation omitted).

Both the '867 Registration and the application cover "credit union services," and those services are literally identical. The '867 Registration also covers services broadly identified as "banking" and "on-line banking services," one or both of which encompass the narrower services identified in the application as:

• "Financial services, namely, banking services featuring financing loans for consumers;"

• "Financial services, namely, banking services featuring checking account services;"

• "Banking services featuring the provision of individual retirement account services;"

• "Banking services provided via electronic device access allowing a consumer to use a telephone number to conduct basic banking transactions;"

• "Financial services, namely, banking services featuring issuing of credit cards;"

• "Banking services provided via personal computer account access;"

• "Financial services, namely, banking services featuring providing money market deposit accounts, and issuing debit cards;"

• "Financial services, namely, banking services for electronic check acceptance services;" and

• "Financial services, namely, banking services for financing loans for a mortgage."

These services are legally identical. Because multiple services identified in the '867 Registration and in the application are literally or legally identical, the second DuPont factor strongly supports a conclusion that confusion is likely. OSF Healthcare, 2023 WL 6140427, at *9.

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The third DuPont factor considers the "similarity or dissimilarity of established, likely-to-continue trade channels." DuPont, 476 F.2d at 1361. "Because the [Class 36] services described in the application and [in] the ['867] [R]egistration are legally identical in part, we must presume that the channels of trade and classes of purchasers are the same as to those legally identical services." Monster Energy Co. v. Lo, Opp. No. 91225050, 2023 WL 417620, at *8 (TTAB 2023) (citing In re Viterra Inc.,

671 F.3d 1358, 1362 (Fed. Cir. 2012) (citation omitted)). The DuPont factors pertaining to channels of trade and classes of consumers for the services also strongly support a conclusion that confusion is likely. Id.

B. Similarity or Dissimilarity of the Marks

Under the first DuPont factor, "we consider the 'similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.'" In re Ye Mystic Krewe of Gasparilla, Ser. No. 90522364, 2025 WL 2953731, at *4 (TTAB 2025) (quoting DuPont, 476 F.2d at 1361). "Similarity in any one of these elements may be sufficient to find the marks confusingly similar." Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, Opp. No. 91270181, 2024 WL 1638376, at *5 (TTAB 2024) (quoting In re Inn at St. John's LLC, Ser. No. 87075988, 2018 WL 2734893, at *5 (TTAB 2018) (citation omitted), aff'd per curiam, 777 F. App'x 516 (Fed. Cir. 2019)); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968) ("It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.") (citation omitted).

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"The proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties." Sage Therapeutics, 2024 WL 1638376, at *5 (quoting Coach Servs., 668 F.3d at 1368). "The focus is on the recollection of the average purchaser, who normally 'retains a general rather than a specific impression of marks. '" Id. (quoting In re i.am.symbolic, llc, Ser. No. 85916778, 2018 WL 3993582, at *4 (TTAB 2018) (citations omitted)). The "average purchasers" here include members of the general public who consume the various banking services identified in the application, including services involving auto, home, and personal loans, checking accounts, on-line banking, and credit and debit cards.

Applicant's mark is SOUTHWEST FINANCIAL EXPERIENCE BETTER BANKING and the cited mark is EXPERIENCE BETTER BANKING, both in standard characters. Applicant's mark contains the cited mark in its entirety, and while there is no absolute rule that a likelihood of confusion exists where an applicant's mark contains the entirety of a registered mark, the fact that Applicant's mark includes the entirety of the cited registered mark increases the similarity between the two. See, e.g., Coca-Cola Bottling Co. of Memphis, Tenn., Inc. v. Joseph E. Seagram & Sons, Inc., 526 F.2d 556, 557 (CCPA 1975) (BENGAL LANCER for club soda, quinine water and ginger ale found to be similar to BENGAL for gin); In re Toshiba Med. Sys. Corp., Ser. No. 79046106, 2009 WL 1896059, at *3 (TTAB 2009) (VANTAGE TITAN for medical magnetic resonance imaging diagnostic

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apparatus found to be similar to TITAN for medical ultrasound diagnostic apparatus); In re El Torito Rests., Inc., Ser. No. 597060, 1988 WL 252343, at *2 (TTAB 1988) (MACHO COMBOS for food items found to be similar to MACHO for restaurant entrees); In re Riddle, Ser. No. 377365, 1985 WL 72011, at *2 (TTAB 1985) (RICHARD PETTY'S ACCU TUNE for automotive service centers found to be similar to ACCU-TUNE for automotive testing equipment).

Applicant argues that the involved marks "are completely dissimilar in sight, sound, and commercial impression," 4 TTABVUE 11, and that the fact "that Applicant's Mark and the Cited Marks include some (but not all) of the same terms is not dispositive." Id. at 13. Applicant argues specifically that "the leading and dominant portion of the '867 Mark is 'Experience,' as opposed to a wholly separate dominant term of 'Southwest' in Applicant's Mark," and that "[t]he existence of distinct dominant terms in Applicant's Mark and the '867 Mark results in distinct commercial impressions between the marks, nullifying any likelihood of confusion."

Id. at 15.

Applicant criticizes the Examining Attorney for "assert[ing] that 'applicant has merely added the wording SOUTHWEST FINANCIAL to the beginning of Reg. No. 4529867's mark to form its mark,'" id. (citation omitted), which Applicant argues "is simply untrue" because "[g]iven the first use of Applicant's Mark in 1962—and the fact that the '867 Mark was not used in commerce until 2010—there was no '867 Mark for Applicant to 'add to' in creating its own mark." Id. According to Applicant, it is

"[m]ore likely the Registrant of the '867 Mark removed 'Southwest Financial' in order

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to create the '867 Mark many decades after Applicant's Mark was first used in commerce." Id.²²

The Examining Attorney responds that "Applicant's addition of SOUTHWEST FINANCIAL to form its mark does not create a distinct commercial impression from the registered mark because it contains some of the wording in Reg. No. 4529867's mark and does not add any wording that would distinguish it from that mark." 6 TTABVUE 6. The Examining Attorney concludes that "the marks are similar in sound, appearance, and meaning." Id.

Before we discuss the similarity of the marks, we must note that Applicant's and the Examining Attorney's discussion of Applicant's "addition" of elements to the cited mark in the formation of Applicant's mark confuses the issue. The TMEP summarizes the law as follows: "Additions or deletions to marks may be sufficient to avoid a likelihood of confusion if: (1) the marks in their entireties convey significantly different commercial impressions; or (2) the matter common to the marks is not likely to be perceived by purchasers as distinguishing source because it is merely descriptive or diluted." TMEP § 1207.01(b)(iii) (collecting cases). But the language discussing "additions or deletions to marks" should not be taken literally. Although an applicant could intentionally add matter to a known prior mark (or delete matter from a known prior mark), the inter partes discovery tools that could yield evidence

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regarding an applicant's selection of its mark are unavailable to the USPTO and applicants in the ex parte context. In this context, the issue is not whether Applicant deliberately "added" such matter, but rather whether the presence of such additional matter avoids a likelihood of confusion. See In re Mighty Leaf Tea, 601 F.3d 1342, 1347-48 (Fed. Cir. 2010) ("The presence of an additional term in [a] mark does not necessarily eliminate the likelihood of confusion if some terms are identical." ). As discussed above, Applicant argues that the dominant portion of its mark SOUTHWEST FINANCIAL EXPERIENCE BETTER BANKING is the word

SOUTHWEST, which precedes the word FINANCIAL. "[T]he first of the literal terms in [a] mark typically is the one which creates the strongest impression," but "this is not always the case, and disclaimed or descriptive terms may be considered less significant features of the mark, even when they appear first." Monster Energy, 2023 WL 417620, at *15 (citations omitted). It is self-evident that the word FINANCIAL that precedes EXPERIENCE BETTER BANKING in Applicant's mark is descriptive of, if not the generic name for, the many "financial services" identified in the application, and the Board held almost 50 years ago that "[t]he term 'SOUTHWEST' is no doubt a geographical term referring to the southwestern section of the United States, and hence may be categorized as a somewhat weak term." In re Allied Equip. Co., 1977 WL 22683, at *2 (TTAB 1977).²³We find that the phrase SOUTHWEST FINANCIAL is not the dominant portion of Applicant's mark SOUTHWEST

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FINANCIAL EXPERIENCE BETTER BANKING even though it appears at the outset of the mark.²⁴

Applicant argues that the marks are dissimilar "in sight, sound, and connotation"

based on the comparison in Applicant's brief reproduced below:

4 TTABVUE 13. That is not the lens through which we must consider the marks' similarity. As noted above, "marks 'must be considered . . . in light of the fallibility of memory' and 'not on the basis of side-by-side comparison.'" St. Helena Hosp., 774 F.3d at 751 (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 685 (CCPA 1977)).

A consumer with a general rather than specific recollection of the cited mark EXPERIENCE BETTER BANKING who separately encounters Applicant's mark SOUTHWEST FINANCIAL EXPERIENCE BETTER BANKING may notice the differences in the appearance and sound of the marks due to the presence of

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SOUTHWEST FINANCIAL in Applicant's mark, but is likely to understand Applicant's mark as a variant of the cited mark when it is used for identical services that enable consumers to "experience better banking." See Advance Mag. Publishers, Inc. v. Fashion Elecs., Inc., Opp. No. 91247034, 2023 WL 4261426, at *14 (TTAB 2023) (finding that "the addition of the letter E in Applicant's EVOGUE mark adds another layer of meaning, but could be perceived as a variation of Opposer 's VOGUE mark denoting the online or electronic aspect of the goods and services") (citing Kangol Ltd.

v. Kangaroos U.S.A., Inc., 974 F.2d 161, 163 (Fed. Cir. 1992) ("What is important is not whether people will necessarily confuse the marks, but whether the marks will be likely to confuse people into believing that the goods they are purchasing emanate from the same source."); Toshiba Med. Sys., 2009 WL 1896059, at *5 (VANTAGE TITAN found to be "more likely to be considered another product from the previously anonymous source of TITAN medical diagnostic apparatus, namely, medical ultrasound devices"); cf. Schieffelin & Co. v. Molson Cos., Opp. No. 69312, 1989 WL 277823, at *4 (TTAB 1989) ("Those consumers who do recognize the differences in the marks may believe that applicant 's mark is a variation of opposer's mark that opposer has adopted for use on a different product."). If SOUTHWEST FINANCIAL is perceived as Applicant's "house mark," because "the common part of the marks is identical, purchasers familiar with the registrant 's mark are likely to assume that the house mark simply identifies what had previously been an anonymous source." In re Fiesta Palms, LLC, Ser. No. 76595049, 2007 WL 950952, at *4 (TTAB 2007) (citations omitted).

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"Similarity is not a binary factor but is a matter of degree." St. Helena Hosp., 774 F.3d at 752 (citation omitted). Where, as here, "the services are identical, the degree of similarity between the marks necessary to support a determination that confusion is likely declines . . . ." In re Jimenez, Ser. No. 97551823, 2025 WL 3126703, at *4 (TTAB 2025). There are differences in appearance and sound between the marks EXPERIENCE BETTER BANKING and SOUTHWEST FINANCIAL EXPERIENCE BETTER BANKING, but the marks are far more similar than dissimilar in meaning when used with literally or legally identical credit union and banking services, and the similarity in meaning outweighs any dissimilarities in appearance and sound. The first DuPont factor supports a conclusion that confusion is likely. Naterra, Inc. v. Bensalem, 92 F.4th 1113, 1119 (Fed. Cir. 2024).

C. Consumer Sophistication and Purchase Conditions

The fourth DuPont factor considers "'[t]he conditions under which and buyers to whom sales are made, i.e. 'impulse' vs. careful, sophisticated purchasing.'" Heil Co. v. Tripleye GmbH, Opp. No. 91277359, 2024 WL 4925901, at *34 (TTAB 2024) (citing Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1323-24 (Fed. Cir. 2014) (quoting DuPont, 476 F.2d at 1361)). "[W]e look to the language of the identifications to ascertain the . . . degree of care in purchasing." Id. (citing Stone Lion, 746 F.3d at 1323-24). "A heightened degree of care when making a purchasing decision may tend to minimize likelihood of confusion," while "[c]onversely, impulse purchases of inexpensive items may tend to have the opposite effect ." Id. (citations omitted).

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Applicant argues that "[h]ere, Applicant's Mark is not likely to cause confusion given the parties' separate channels of trade and their intended end -consumer, as well as the degree of care likely to be exercised by relevant consumers." 4 TTABVUE 22-23. According to Applicant, "[c]onsumers purchasing a specialty item exercise a greater degree of care in distinguishing the source of the products and services ," and

"even the least sophisticated consumers will exercise greater care in choosing to participate as a member in a credit union and in selecting an entity to provide guidance in the fields of asset allocation, estates, retirement, college funding, taxation, and accounting." Id. at 23 (citation omitted).²⁵ The Examining Attorney responds that "[t]he fact that purchasers are sophisticated or knowledgeable in a particular field does not necessarily mean that they are sophisticated or knowledgeable in the field of trademarks or immune from source confusion," and that "where the purchasers consist of both professionals and the public, the standard of care for purchasing the goods is that of the least sophisticated potential purchaser." 6 TTABVUE 7 (citations omitted). The services identified in the application include "banking services featuring financing loans for consumers;" "financing loans for automobiles;" "providing personal lines of credit;" "banking services featuring checking account services;" "banking services provided via electronic device access allowing a consumer to use a telephone number to conduct basic banking transactions;" "banking services featuring issuing

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of credit cards;" "banking services provided via personal computer account access;"

"banking services featuring providing money market deposit accounts, and issuing debit cards;" and "banking services for financing loans for a mortgage ."

The Federal Circuit and the Board have found, as a general matter, that some consumers of banking services may exercise a higher degree of care and others may not. See, e.g., Amalgamated Bank of N.Y. v. Amalgamated Trust & Sav. Bank, 842 F.2d 1270, 1274 (Fed. Cir. 1988) ("Banking is, we may take notice, unlike other business. Instead of buyers, banking has customers who may be creditors of the bank -- depositors -- or debtors to the bank -- borrowers and others to whom bank credit is extended. Some of both categories one would expect to select their bank after long and careful consideration. Others do not even know they will be customers of a bank until they discover that they are, i.e., when paper they have signed, payable to someone else, is assigned to a bank. We would suppose that bankers have to know the habits of their customers, and the application of such knowledge is implicit in the agreement here involved. It would be strange for the customers of the banks to be confused about whom they were dealing with, and their bankers not know it."); Lincoln Nat'l Corp. v. Anderson, Opp. No. 91192939, 2014 WL 879506, at *15 n.18 (TTAB 2014) (where relevant purchasers of banking, financial planning, and investment services consisted of both ordinary and knowledgeable and sophisticated consumers, "this factor certainly would not weigh significantly in applicant 's favor. At most it is neutral in our overall likelihood of confusion determination based on all of the relevant duPont factors").

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Against the backdrop of these cases and the recitations of services, we find that not all purchasers of banking services are sophisticated or likely to exercise a significant degree of care in purchasing. Applicant offers no evidence showing that purchasers of banking services involving auto, home, and personal loans, checking accounts, on-line banking, and credit and debit cards, everyday services that are used by millions of members of the general public, are likely to exercise any particular care in purchasing and using those services. Where, as here, the purchasers of the identified services may include both businesses and ordinary consumers, "Board precedent requires the decision to be based on the least sophisticated potential purchasers." Stone Lion, 746 F.3d at 1325 (quotation and quotation marks omitted). We find that the least sophisticated potential purchasers of banking services involving auto, home, and personal loans, checking accounts, on-line banking, and credit and debit cards are unlikely to exercise more than ordinary care in using those services. The fourth DuPont factors is thus neutral in our analysis of the likelihood of confusion.

D. The Absence of Evidence of Actual Confusion

The eighth DuPont factor considers "[t]he length of time during and conditions under which there has been concurrent use without evidence of actual confusion ."

DuPont, 476 F.2d at 1361. Generally, this factor is "not that important in ex parte cases unless the applicant provides us with contextual evidence that allows us to meaningfully assess the length of time and degree to which the applicant 's and registrant's commercial activities would have provided an opportunity for confusion

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to have manifested itself if it were likely." Embiid, 2021 WL 2285576, at *19 (citing In re Guild Mortg. Co., Ser. No. 86709944, 2020 WL 1639916, at *8 (TTAB 2020) ("our analysis as to the second, third, and fourth du Pont factors, discussing the similarity or dissimilarity of the services, channels of trade, and relevant consumers, is based, as dictated by precedent from the Federal Circuit, on the identifications as set forth in the application and the cited registration. . . . [but] the eighth duPont factor, by contrast . . . requires us to look at actual market conditions, to the extent there is evidence of such conditions of record.") (emphasis in original; citations omitted)). In Guild Mortg., the applicant provided evidence of those "actual market conditions" in the form of a declaration from a corporate executive establishing facts regarding the applicant's use of its mark, as well as evidence regarding the use of the cited registered mark. Guild Mortg., 2020 WL 1639916, at *8-9. The record here is devoid of such evidence. Applicant instead argues that

[t]he fact that the Parties have co-existed in the

marketplace for many years without any actual confusion

further demonstrates the absence of any likelihood of

confusion. Applicant has existed and used its marks since 1962 and the Cited Mark has been in use in commerce since 1997. That means that Applicant's Mark and the Cited

Mark have co-existed in the marketplace for at least 35

years without any actual confusion between the marks.

4 TTABVUE 23.

Applicant's arguments are meritless. The dates of use claimed in the application and in the '867 Registration are not evidence of use of the involved marks, cf. DowntownDC Bus. Improvement Dist. v. Clarke, Opp. No. 91275100, 2024 WL 4449409, at *8 n.75 (TTAB 2024), and neither is the argument of Applicant's attorney.

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Ye Mystic Krewe of Gasparilla, 2025 WL 2953731, at *6 n.15 (citing Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018) (internal citation omitted)). Moreover, "in this ex parte context, there has been no opportunity to hear from [the] [r]egistrant about whether it is aware of any reported instances of confusion. We therefore are getting only half the story." Guild Mortg., 2020 WL 1639916, at *9 (citations omitted). The eighth DuPont factor is neutral in our analysis of the likelihood of confusion.

E. Summary

The key first and second DuPont factors support a conclusion that confusion is likely. The marks are more similar than dissimilar, and the services are literally or legally identical in part, which reduces the degree of similarity between the marks that is required for confusion to be likely, and which causes the DuPont factors pertaining to trade channels and classes of consumers to strongly support a conclusion that confusion is likely. The other pertinent DuPont factors are neutral. We conclude that consumers who have a general recollection of the cited mark EXPERIENCE BETTER BANKING for various banking services who separately encounter Applicant's mark SOUTHWEST FINANCIAL EXPERIENCE BETTER BANKING for legally-identical banking services are likely to believe, mistakenly, that the services have a common source.

Decision: The Section 2(d) refusal to register is affirmed.²⁶