Alcanza Clinical Research, LLC v. Diversa Clinical Research LLC

THIS OPINION IS NOT A

PRECEDENT OF THE TTAB

Mailed: June 2, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

_____

Trademark Trial and Appeal Board _____

Alcanza Clinical Research, LLC v.

Diversa Clinical Research LLC _____

Opposition No. 91292960

_____

Mark A. Wright and Jeremy T. Walker of McLane Middleton, P.A., for Alcanza Clinical Research, LLC.

Diversa Clinical Research LLC, pro se.

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Before English, Lebow and Allard,

Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:

Applicant, Diversa Clinical Research LLC, seeks registration of the mark

BREAKING BARRIERS IN CLINICAL RESEARCH FOR ALL, in standard characters on the Principal Register, for use with "medical and scientific research, namely, conducting clinical trials for others" in International Class 42.¹

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Opposer, Alcanza Clinical Research, LLC, has opposed registration of Applicant's proposed mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it is likely to cause confusion with Opposer's previously used mark,

CLINICAL RESEARCH FOR ALL (with "CLINICAL RESEARCH" disclaimed), which is registered in standard characters on the Principal Register for "scientific research in the field of health care; clinical medical research; medical and scientific research, namely, conducting clinical trials for others; scientific research in the nature of conducting clinical trials for others; clinical medical and scientific research in the form of clinical trials of drugs for third party manufacturers; clinical scientific research in the form of clinical trials of drugs for third party manufacturers; laboratory research in the field of pharmaceuticals," in International Class 42.² Applicant did not respond to the individual allegations of the Notice of Opposition in its answer. Instead, in several numbered paragraphs, Applicant argues against the claim of likelihood of confusion for one reason or another, e.g., "No Evidence of Actual Confusion" or the supposed "Generic Nature of the Opposer's Mark."³And under a heading titled "Denial of Likelihood of Confusion," Applicant argues that its mark "is distinctive and conveys a different message [than Opposer's mark], emphasizing action, innovation, and inclusivity" due to the addition of "Breaking Barriers," which

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"highlights [Applicant's] commitment to removing obstacles in clinical research, which is not implied in the opposer's more generic phrase."⁴We construe Applicant's Answer as a general denial of the allegations in the Notice of Opposition. Both Opposer and Applicant have filed trial briefs and the case is ready for decision. For the reasons explained below, we sustain the opposition.

I. Preliminary Issues A. Construed Objections

We first address Applicant's arguments that Opposer "Failed to Comply With TTAB Procedure"⁵for one reason or another, which we construe as requests to exclude or strike evidence.

Applicant first contends that "Opposer's pretrial disclosures were never filed," and

"[u]nder 37 C.F.R. § 2.121(e) and TBMP § 702.01, this failure bars testimony, renders the declaration improper, and justifies exclusion of exhibits."⁶But neither Trademark Rule 2.121(e) nor TBMP § 702.01 require a party to file its initial disclosures. And TBMP § 702.01 specifically states the opposite: "A party making a pretrial disclosure is not required to file routinely a copy of such disclosure with the Board."

Applicant next argues that Opposer "filed its Notice of Reliance two days late,"

and "[u]nder TBMP § 704.02, untimely evidence is inadmissible."⁷Except that Opposer's notice of reliance wasn't late. As Opposer points out, its trial period ended

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on July 5, 2025, and "[b]ecause the deadline fell on a Saturday, Opposer was entitled to file its Notice of Reliance on Monday, July 7, 2025, which it did."⁸Trademark Rule 2.196, 37 C.F.R. § 2.196. Opposer's notice of reliance was thus timely filed. Applicant next contends that since "Opposer's discovery responses were served long after discovery closed, [it] prejudice[ed] [Applicant] and demonstrate[s] lack of diligence."⁹But the discovery rules in a TTAB proceeding aren't self-executing. To the extent Opposer's discovery responses were late, it was incumbent upon Applicant to file a timely motion to compel. Applicant did file a motion to compel earlier in the proceeding, seeking an order compelling Opposer's responses to its discovery requests.¹⁰But the Board denied it because (1) Applicant did not include a copy of the requests with the motion, as required by Trademark Rule 2.120(f)(1), 37 C.F.R. § 2.120(f)(1) ("A motion to compel shall include a copy of . . . the interrogatory with any answer or objection that was made; or a copy of the request for production, any proffer of production or objection to production in response to the request, and a list and brief description of the documents, electronically stored information, or tangible things that were not produced for inspection and copying"); and (2) the motion was untimely filed after the deadline for serving pretrial disclosures, also in violation of Trademark Rule 2.120(f)(1).¹¹Applicant's repetition of an argument already rejected by the Board is not well-taken.

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Finally, Applicant contends that Opposer failed to follow TTAB procedure by relying heavily on Applicant's responses "due to the absence of substantive evidence of its own."¹²But "[e]vidence made of record by one party is in the record for all purposes and [an] adverse party need not (and should not) enter the identical material into the record. See Trademark Rule 2.122(a), 37 C.F.R. § 2.122(a) ("When evidence has been made of record by one party in accordance with these rules, it may be referred to by any party for any purpose permitted by the Federal Rules of Evidence.").

B. Inadmissible Settlement Discussions

Applicant, in its trial brief, brings up the parties' settlement discussions during this proceeding in an attempt to show its alleged good faith in adopting its mark, and

"[t]he inconsistency between Opposer's sworn statements and its prior negotiations"

regarding geographic markets and the potential for coexistence.¹³According to Applicant, this "weighs against [Opposer's] confusion theory and demonstrates that Opposer's opposition is driven by strategic considerations rather than evidence of consumer confusion."¹⁴

Opposer replies that it "certainly would dispute Applicant's contentions about the context of such discussions," and that "any such evidence of compromise discussions is irrelevant to this proceeding, inadmissible and should be disregarded."¹⁵

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We agree. Fed. R. Evid. 408 generally prohibits a party from using "statement[s] made during compromise negotiations" as evidence of liability of a disputed claim. Applicant offered the statements (or evidence) to support the invalidity of Opposer's likelihood of confusion claim. Accordingly, Applicant's reliance on them is in contravention of Rule 408. We give no consideration to such argument or evidence.

II. The Record

The record includes the pleadings, the file of the Application by operation of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), and the following additional evidence submitted by the parties:

Opposer made of record the testimony declaration of its Chief Executive Officer, Carlos E. Orantes,¹⁶with exhibits that include Applicant's responses to Opposer's interrogatories;¹⁷a printout of an internal email of Opposer;¹⁸printouts of Internet materials, including current and archival pages from Opposer's website and social media accounts;¹⁹printouts of articles and press releases pertaining to Opposer's services;²⁰printouts of pages from Applicant's website and social media accounts;²¹ and a copy of the registration certificate for Opposer's pleaded registration, along with a printout from the USPTO's Trademark Status and Document Retrieval

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("TSDR") showing its status and title.²² Applicant submitted the testimony declaration of its founder and owner, Dr. Rachel Andrews,²³with exhibits that include Applicant's certificate of formation;²⁴ draft website pages for Applicant's proposed business;²⁵screenshots from Applicant's official social media pages;²⁶a screenshot of a proposed business email account;²⁷ draft business and marketing materials;²⁸copies of email correspondence with Opposer;²⁹and a screenshot from LinkedIn showing her credentials and a copy of her diploma for the degree, "Doctor of Health Science."³⁰

III. Entitlement to a Statutory Cause of Action

Establishing an entitlement to a statutory cause of action is a threshold

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requirement in every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1373 (Fed. Cir. 2020). Thus, Opposer, as plaintiff in this opposition proceeding, must prove its entitlement to a statutory cause of action under Trademark Act Section 13, 15 U.S.C. § 1063. See, e.g., Meenaxi Enter., Inc. v. Coca- Cola Co., 38 F.4th 1067, 1071-72 (Fed. Cir. 2022).

To establish an entitlement to a statutory cause of action, Opposer must demonstrate that it has: (1) an interest falling within the zone of interests protected by the statute, and (2) a reasonable belief in damage proximately caused by the registration of the mark. Curtin v. United Trademark Holdings, Inc., 137 F.4th 1359, 1367 (Fed. Cir. 2025) (citing Lexmark Int'l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 129-134 (2014)), cert. denied, __ U.S. __ (Apr. 20, 2026) (No. 25-435); Corcamore, 978 F.3d at 1304-07.

As noted, Opposer made of record a copy of its pleaded registration for the mark

CLINICAL RESEARCH FOR ALL, as well as a status-and-title printout from the USPTO's TSDR database showing Opposer's ownership of the registration and its active status. This suffices to show a direct commercial interest in this matter, and a plausible claim of likely damage to that interest stemming from the registration of Applicant's mark. See Heil Co. v. Tripleye GmbH, No. 91277359, 2024 TTAB LEXIS 494, at *42-43 (status and title copy of pleaded registration demonstrated entitlement); Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 TTAB LEXIS 383, at *6 (valid and subsisting pleaded registration establishes

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opposer's direct commercial interest in the proceeding and its belief in damage) (citing Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000)).

IV. Priority and Likelihood of Confusion

Section 2(d) of 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, mistake, or to deceive."

15 U.S.C. § 1052(d), quoted in In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023). Proving priority is thus a necessary element of a claim under Section 2(d).

A. Priority

"Because Opposer relies on its asserted [CLINICAL RESEARCH FOR ALL] registration[] that ha[s] been made of record, and Applicant has not challenged the[] registration[] by way of any cancellation counterclaim(s), Opposer's priority . . . is not at issue with respect to the goods identified" therein. See, e.g., Made in Nature, LLC

v. Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 228, at *20 (citing King Candy Co. Eunice King's Kitchen, Inc., 496 F.2d 1400, 1402 (CCPA 1974)).

B. Likelihood of confusion

To determine whether there is a likelihood of confusion between marks under Section 2(d), we analyze the evidence and arguments under the factors set forth in In re E. I. du Pont deNemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (the "DuPont factors"), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015).

"Whether a likelihood of confusion exists between an applicant's mark and a previously registered mark is determined on a case-by-case basis, aided by

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application of the thirteen DuPont factors." Omaha Steaks Int'l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1319 (Fed. Cir. 2018).

"The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but 'may focus . . . on dispositive factors, such as similarity of the marks and relatedness of the goods.'" In re i.am.symbolic, LLC, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting Herbko Int'l, Inc. v. Kappa Books, Inc., 308 F.3d 1126, 1336 (Fed. Cir. 2002)). Opposer bears the burden of establishing that there is a likelihood of confusion by a preponderance of the evidence. Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1365 (Fed. Cir. 2023) ("It is well established that, in opposition proceedings, the burden of proof rests on the opposer.").

1. The Similarity or Dissimilarity of the Services and Trade Channels

The second DuPont factor concerns the "similarity or dissimilarity and nature of the goods or services as described in an application or registration …," and the third DuPont factor concerns the "similarity or dissimilarity of established, likely-to- continue trade channels." DuPont, 476 F.2d at 1361. Here, the Application's Medical and scientific research, namely, conducting clinical trials for others

overlaps with and is legally identical in-part to Opposer's Registration's Scientific research in the field of health care; clinical medical research;

medical and scientific research, namely, conducting clinical trials for others; scientific research in the nature of conducting clinical trials for others; clinical medical and scientific research in the form of clinical trials of drugs for third party manufacturers; clinical scientific research in the form of clinical trials of drugs for third party manufacturers; laboratory research in the field of pharmaceuticals.

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See, e.g. In re Info. Builders Inc., No. 87753964, 2020 TTAB LEXIS 20, at *9-10 (finding services legally identical in part where registrant's services were encompassed by applicant's services).

In addition, under the third DuPont factor, because the services in the Application and Opposer's Registration are legally identical in part and there are no limitations on trade channels or consumers, we must presume that the trade channels and classes of consumers for those legally identical in part services overlap. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1372 (Fed. Cir. 2018); In re Viterra, 671 F.3d 1358, 1662 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion).

Applicant nevertheless argues that Opposer's repeated characterization of the parties' services as identical "oversimplifies the record and ignores material distinctions in the nature, scope, and context of the parties' respective services."³¹ According to Applicant, the parties have different purposes: Applicant is " a mission- driven entity focused on expanding access, equity . . . and representation in clinical research for underserved and underrepresented communities," while "Opposer . . . by contrast, operates established corporate clinical research sites with a fundamental different business model, scale, and organizational services."³²Applicant further asserts that its activities include "autism-related initiatives, developmental

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screenings, community-focused research efforts, and consulting services centered on diversity and inclusion within clinical trial participation," whereas Opposer's evidence "reflects large-scale site operations with generalized recruitment efforts, not the targeted, equity-focused initiatives . . . ."³³

We fail to see how these purported differences regarding the parties' business models (e.g., Applicant's purported focus on equity-focused initiatives) amount to a hill of beans in this case. Cai, 901 F.3d at 1371 ("[A]rgument is no substitute for evidence."). Regardless, we cannot rely on extrinsic evidence of actual marketplace use to limit the services identified in the Application or in Opposer's Registration. See, e.g., i.am.symbolic, 866 F.3d at 1327 ("[T]he Board properly declined to import restrictions into the identification of goods based on alleged real world conditions."); Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 1373 (Fed. Cir. 2013) ("The PTO proceedings are 'based on the content of the registration application' and not upon any specific use of the challenged mark in commerce.") (internal quotation omitted). We compare the services as identified. Applicant also decries the legal presumption that we follow: "Absent evidence of overlapping customers, marketing channels of real-world marketplace interaction, Opposer's claim that the parties' services and channels of trade are identical rests on an assumption rather than proof."³⁴But no presumption was applied to the services; they are overlapping on their face. As to the channels of trade, it's not an assumption

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rather than proof that we follow, but instead "[a] legal inference or assumption that a fact exists because of the known or proven existence of some other fact or group of facts. . . . A presumption shifts the burden of production or persuasion to the opposing party." See BLACK'S LAW DICTIONARY (12th ed. 2024).³⁵Applicant provided no evidence to overcome this presumption.

The second and third DuPont factors strongly support a finding of likelihood of confusion.

2. The Similarity or Dissimilarity of the Marks

We now consider the first DuPont factor, which involves an analysis of the similarity or dissimilarity of the marks in their entirety as to appearance, sound, connotation and commercial impression. DuPont, 476 F.2d at 1361. "[T]he 'similarity or dissimilarity of the marks in their entireties' is a predominant inquiry." Herbko,

308 F.3d at 1165 (citing DuPont, 476 F.2d at 1361). The proper test regarding similarity "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." Cai, 901 F.3d at 1373 (quoting Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012) (internal quotation marks omitted)).

The marks must also be considered "in light of the fallibility of memory ...." In re

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St. Helena Hosp., 774 F.3d 747, 750-51 (Fed. Cir. 2014) (quotation omitted). The focus is on the recollection of the average purchaser who normally retains a general rather than a specific impression of trademarks. In re Bay State Brewing Co., Inc., No. 85826258, 2016 TTAB LEXIS 46, at *6 (TTAB 2016) (citing Spoons Rests. Inc. v. Morrison Inc., No. 91079317, 1991 TTAB LEXIS 53, at *18, aff'd per curiam, 972 F.2d 1353 (Fed. Cir. 1992)).

"It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion."

Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981). "On the other hand, in articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable." In re Nat'l Data Corp., 753 F.2d 1056, [pinpoint](Fed. Cir. 1985). We keep in mind that "where, as here, the [services] are identical [in part], 'the degree of similarity necessary to support a conclusion of likely confusion declines." Viterra, 671 F.3d at 1362-63, quoting Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992). We are comparing Applicant's mark, BREAKING BARRIERS IN CLINICAL RESEARCH FOR ALL, to Opposer's mark, CLINICAL RESEARCH FOR ALL. The marks are identical in part. Indeed, as Opposer observes, Applicant's mark

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"entirely contains the Registered mark."³⁶While prospective consumers may be more likely to focus on the first portion or word in a trademark, see Palm Bay Imps. v. Veuve Cliquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005), likelihood of confusion is not necessarily avoided between otherwise confusingly similar marks merely by adding other distinctive matter. If an important portion of the marks is the same, which we find to be the case here, then the marks may be confusingly similar notwithstanding peripheral differences. See, e.g., Stone Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1321-22 (Fed. Cir. 2014) (affirming Board's finding that confusion likely where applicant's mark STONE LION CAPITAL incorporated the entirety of the registered marks LION CAPITAL and LION); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1266 (Fed. Cir. 2002) (finding that, even though applicant's mark PACKARD TECHNOLOGIES, with "TECHNOLOGIES" disclaimed, does not incorporate every feature of opposer's HEWLETT PACKARD marks, a similar overall commercial impression is created); In re U.S. Shoe Corp., No. 73444699, 1985 TTAB LEXIS 23, at *6 (holding CAREER IMAGE (stylized) for clothing and retail women's clothing store services, and CREST CAREER IMAGES (stylized) for uniforms, likely to cause confusion, noting that CAREER IMAGE would be perceived by consumers as a shortened form of CREST

CAREER IMAGES).

Applicant nevertheless contends that "BREAKING BARRIERS" is the dominant portion of its mark because it "fundamentally shapes the meaning and impression of

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the mark by communicating proactive efforts to remove obstacles and expand access,"

whereas "Opposer's asserted wording conveys general availability or inclusivity without the same call to action or advocacy-based message."³⁷According to Applicant,

"[w]hen viewed as a whole, Applicant's mark does not merely describe participation in clinical research; it communicates a broader purpose centered on equity, access, and representation."³⁸

We disagree. Both marks convey the same message of promoting clinical research

FOR ALL, rather than just some. Applicant merely adds the term "BREAKING BARRIERS," which is just another way of saying that clinical research shouldn't be limited to certain groups. Opposer's mark, CLINICAL RESEARCH FOR ALL

already communicates that point explicitly. For example, on Applicant's website, Applicant explains: "We accelerate the development of new therapies by reducing barriers to clinical research participation for all."³⁹Applicant's mark simply provides additional details on how it provides greater access, but it's not a different connotation, but one that is indeed similar.

We find that CLINICAL RESEARCH FOR ALL and BREAKING BARRIERS IN CLINICAL RESEARCH FOR ALL are very similar, particularly in view of the standard used when comparing marks that identify identical and legally identical services.

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The first DuPont factor strongly supports a finding of likelihood of confusion.

3. No Evidence of Actual Confusion

Applicant argues that "Opposer admits no confusion has occurred, no inquiries were misdirected, and no confusion evidence was produced during discovery."

Applicant concludes that "[a]ny alleged confusion is speculative."⁴⁰ While 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 1351, actual confusion is not required for confusion to be likely. Actual confusion just makes it even more likely that confusion will arise. But here, the Application is based on an intent to use and Applicant provides no evidence that there has been an opportunity for confusion arise. According to Applicant's founder, Dr. Andrews, since Applicant filed the Application, it has

"continuously prepared to use the mark in commerce." It's somewhat remarkable that Applicant claims, as a defense, the lack of actual confusion when Applicant has yet to use its mark in commerce.

The eighth DuPont factor is neutral in this case.

4. Good Faith Adoption

Applicant argues that it adopted its proposed mark in good faith, but good faith is not a defense to likelihood of confusion before the Board. Eveready Battery Co. v. Green Planet Inc., 2009 TTAB LEXIS 490, at *16 ("[I]t is well-settled that while evidence of bad faith adoption typically will weigh against an applicant, good faith

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adoption typically does not aid an applicant attempting to establish no likelihood of confusion). There is "no excuse for even approaching the well-known trademark of a competitor . . . ." Planters Nut & Chocolate Co. v. Crown Nut Co., Inc., 305 F.2d 916,

920 (CCPA 1962).

C. Conclusion

The first, second and third DuPont factors strongly support a finding of likelihood of confusion, the eighth factor is neutral, and good faith is not a defense. We conclude that under Section 2(d) of the Trademark Act, Applicant's mark BREAKING BARRIERS IN CLINICAL RESEARCH FOR ALL for "medical and scientific research, namely, conducting clinical trials for others" is likely to be confused with Opposer's mark CLINICAL RESEARCH FOR ALL for "scientific research in the field of health care; clinical medical research; medical and scientific research, namely, conducting clinical trials for others; scientific research in the nature of conducting clinical trials for others; clinical medical and scientific research in the form of clinical trials of drugs for third party manufacturers; clinical scientific research in the form of clinical trials of drugs for third party manufacturers; laboratory research in the field of pharmaceuticals."

Decision: The opposition is sustained.