Introduction: Why Trade Channels Matter in TTAB Likelihood of Confusion Cases

In Trademark Trial and Appeal Board proceedings, likelihood of confusion remains the most frequently litigated issue. While practitioners often focus on mark similarity and goods or services descriptions, trade channels evidence frequently plays a decisive but misunderstood role. The TTAB does not simply assume how consumers encounter brands in the marketplace. Instead, it relies on the record to determine whether the parties’ goods or services move through the same or related channels of trade and reach overlapping consumers.

Understanding how the Board analyzes trade channels under the DuPont factors can significantly improve litigation outcomes. When properly developed, this evidence strengthens confusion arguments. When mishandled, it can undermine even strong cases.

The Trade Channels DuPont Factor Explained

Among the thirteen DuPont factors, the similarity or dissimilarity of established, likely to continue trade channels stands as a core consideration. The TTAB examines whether the relevant goods or services are marketed in the same way, through the same distribution pathways, and to the same classes of purchasers.

Importantly, the Board’s analysis begins with the identifications of goods and services as written in the application or registration. If those identifications contain no limitations, the TTAB presumes that the goods or services move through all normal channels of trade for those categories and reach all typical purchasers. This presumption often surprises parties who rely too heavily on real world business distinctions that are not reflected in the record.

The Role of the Identification of Goods and Services

The TTAB consistently emphasizes that trade channels are determined first by the scope of the identifications. When goods or services are broadly defined, the Board assumes broad trade channels. Evidence attempting to narrow those channels often carries limited weight unless the identifications themselves impose restrictions.

For example, arguments that one party sells only online while another sells through brick and mortar stores frequently fail if the identifications are unrestricted. The Board does not read marketplace limitations into identifications that do not explicitly contain them. This principle makes careful drafting during prosecution critical, as those descriptions often dictate the outcome years later in litigation.

When Trade Channels Evidence Becomes Critical

Trade channels evidence becomes especially important when the goods or services are not identical. In cases involving related but distinct offerings, the TTAB looks to evidence showing how consumers encounter these products in commerce.

Examples include proof that services are commonly offered by the same entities, that goods are sold side by side in the same retail environments, or that marketing materials target the same audience. Without such evidence, claims of relatedness may appear speculative.

This is where many parties fall short. Merely asserting that consumers might encounter both brands is insufficient. The Board expects concrete, record based proof.

Acceptable Forms of Trade Channels Evidence

The TTAB allows a wide range of evidence to establish trade channels, provided it is properly introduced into the record. Website evidence often plays a central role, particularly where it demonstrates how companies in the industry market similar goods or services. Third party websites showing overlapping offerings can be persuasive when tied clearly to the relevant goods.

Industry publications, catalogs, advertising materials, and declarations can also support trade channel arguments. The key is relevance and authentication. Evidence must reflect typical marketplace practices rather than isolated examples.

Unsupported attorney argument does not substitute for evidence. The Board routinely disregards conclusory statements about how goods are sold when they lack evidentiary backing.

Overlapping Consumers and Purchasing Conditions

Trade channels analysis does not end with distribution pathways. The TTAB also considers whether the goods or services are offered to the same classes of consumers. This includes evaluating purchasing conditions, price points, and the degree of consumer care.

Evidence showing that goods are marketed to both professionals and general consumers often weighs in favor of confusion. Conversely, proof that goods target specialized purchasers may narrow overlap, though this argument succeeds only when supported by the record and consistent with the identifications.

The Board is cautious about claims of heightened consumer sophistication. Without concrete proof, these arguments rarely overcome broad trade channel presumptions.

Common Mistakes in Trade Channels Arguments

One frequent mistake is relying solely on the parties’ own marketing practices. The TTAB is clear that the focus is not limited to how the parties currently operate but how the goods or services could be offered under the identifications. Another error involves introducing trade channel evidence too late, such as attempting to rely on new exhibits during briefing.

Failure to connect trade channels evidence to likelihood of confusion analysis also weakens arguments. Evidence must be contextualized, not merely submitted. The Board expects parties to explain why the evidence matters and how it supports or undermines confusion.

Strategic Considerations for Plaintiffs and Defendants

For plaintiffs, trade channels evidence should reinforce the natural overlap presumed by broad identifications or fill gaps where goods or services are merely related. Early planning is essential, as discovery and testimony periods define what enters the record.

Defendants, on the other hand, often focus on highlighting the absence of overlap or emphasizing distinctions supported by the identifications themselves. Where possible, limiting identifications during prosecution can significantly reduce litigation risk later.

In both roles, effective advocacy requires aligning legal arguments with the evidentiary framework the TTAB applies.

Why Trade Channels Evidence Often Decides Close Cases

In many TTAB decisions, trade channels serve as the tipping point. When mark similarity is moderate and goods are related but not identical, evidence showing shared marketing paths and consumer overlap can push the analysis toward confusion. Conversely, weak or absent trade channels proof can create enough doubt to defeat a claim.

This reality underscores why trade channels evidence deserves careful attention throughout TTAB proceedings, not just at final briefing.

Conclusion: Building a Persuasive Trade Channels Record

Trade channels analysis under the DuPont factors is grounded in structure, not speculation. The TTAB relies heavily on identifications, supported by credible evidence reflecting typical marketplace behavior. Parties who understand this framework can present clearer, more persuasive cases.

Your brand is everything, and TTAB disputes often shape the scope of brand protection for years to come. Thoughtful planning, precise evidence, and strategic advocacy can make all the difference. If you are navigating a TTAB opposition or cancellation, working with experienced trademark counsel can help ensure your trade channels arguments align with how the Board actually decides cases.