Last week, the U.S. Court of Appeals for the Federal Circuit issued a precedential opinion in Fuente Marketing Ltd. v. Vaporous Technologies, LLC, No. 2024-1460 (April 8, 2026), affirming the Trademark Trial and Appeal Board’s dismissal of Fuente’s opposition to Vaporous’s trademark application on the ground that there was no likelihood of confusion between the parties’ marks.
Fuente, a seller of premium hand-rolled cigars, owns two standard character registrations for the letter “X” used in connection with cigars and related accessories. Vaporous, a designer and manufacturer of oral vaporizers, filed an intent-to-use application for a design mark consisting of two diagonal intersecting lines in the shape of a stylized “X” with a shaded circle above it. Fuente opposed the application, alleging a likelihood of confusion under § 2(d) of the Lanham Act.
The Board dismissed Fuente’s opposition after weighing the DuPont factors, concluding that while several factors favored a likelihood of confusion—including overlapping trade channels and classes of purchasers—the marks’ visual dissimilarity was dispositive. Fuente appealed.
The Federal Circuit affirmed. On the first DuPont factor, the Court held that any Board error in relying on the parties’ stipulation describing Vaporous’s mark as a “stick figure” was harmless because the Board independently assessed the mark and found, based on the record, that consumers would perceive it as a stick figure rather than the letter “X.” The Court also rejected Fuente’s contention that the Board ignored evidence of Vaporous’s broader DABX branding, noting that the proper inquiry requires comparison only of the applied-for mark against Fuente’s registered marks. As to mark fame, the Court held substantial evidence supported the Board’s conclusion that Fuente’s “X” marks were commercially weak because Fuente’s promotional use of “X” was largely integrated into other marks rather than displayed as a standalone source identifier.
Finally, the Court confirmed that a single DuPont factor—particularly dissimilarity of the marks—may be dispositive, even where all other relevant factors are neutral or favor confusion. The Court concluded that the pronounced differences between the marks in sound, appearance, connotation, and commercial impression outweighed all other factors.
