TTABlog Test: Is TRIFOX for Bicycle Forks Confusable With FOX for Bicycle Shock Absorbers?

Fox Factory petitioned for cancellation of a registration for the mark TRIFOX for “bicycles; bicycle frames; bicycle handlebars; bicycle parts, namely, forks; bicycle parts, namely, handle bar stems; bicycle saddles; bicycle seat posts; bicycle water bottle cages; bicycle wheels,” claiming likely confusion with its registered mark FOX, in standard and logo form, for bicycle shock absorbers and other bicycle parts. How do you think this came out? Fox Factory, Inc. v. Dong Yongqiang, Cancellation No. 92081730 (November 6, 2025) [not precedential] (Opinion by Judge Thomas W. Wellington).

In a cancellation proceeding where both parties own registrations, priority is in issue. Respondent Yongqiang did not introduce evidence of use of TRIFOX prior to Fox Factory's constructive first use dates (the filing dates of its underlying applications), and so Fox Factory had priority.

As to the goods, the Board agreed with Yongqiang that bicycle forks and shock absorbers are not legally identical, but "the evidence makes it abundantly clear that these two components are very closely related and share the same purpose, i.e., absorbing shocks from uneven terrain and assist control by keeping the bike’s wheels in contact a bike with the ground." Moreover, these items are "are offered to the same class of consumers, bike enthusiasts, and may be found in the same retail environments, namely, online and retail stores that sell bicycle parts."

The Board concluded that the second and third DuPont factors weigh "heavily" in favor of Fox Factory. [Why "heavily"? -ed.].

The Board found that the FOX marks to are inherently distinctive and also "enjoy significant marketplace presence with evidence showing considerable exposure amongst consumers of bicycle parts, particularly in the mountain bike marketplace." Yongqiang's evidence of third-party use and registration of FOX-containing marks, although not completely discounted, did "little to show any conceptual or marketplace weakness to Petitioner’s FOX marks."

The Board next found the involved marks to be "quite similar," "mainly due to the recognizable and arbitrary word FOX being the sole literal element in Petitioner’s marks and merely preceded by the prefix TRI- in Respondent’s mark."

Fox Factory admitted that it was unaware of any actual confusion, but it pointed to the results of a Squirt-style survey showing 50% confusion. The Board agreed with Yongqiang, however, that the survey "has very little probative value given the circumstances in this proceeding." 

That is, in view of Petitioner’s strong evidence showing significant commercial strength and consumer exposure to its FOX marks in connection with bicycle parts that include forks, the Squirt survey was ill-suited for purposes of showing the likelihood that consumers would be confused with respect to Petitioner’s FOX mark.

Yongqiang brought up the lack of evidence of actual confusion, but the Board observed that "there has not been a meaningful opportunity for actual confusion to have occurred." And so, the eighth DuPont factor was neutral

As to purchaser care, the Board noted that" the identifications of the parties’ goods in the registrations do not set a particular price point." It therefore presumed that the goods are offered to ordinary consumers at prices ranging from inexpensive to expensive, and it deemed the fourth DuPont factor to be neutral.

Balancing the relevant DuPont factors, the Board found confusion likely, and it granted the petition for cancellation.

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TTABlogger comment: The Board rejected Yongqiang's argument that Fox Factory's choice of the Squirt survey format was evidence of the weakness of its marks.

Text Copyright John L. Welch 2025.