TTAB Dismiss AURI Supplements Opposition, Finding the Goods Unrelated to Agricultural Services and Rejecting Actual Confusion Evidence

In a 78-page decision, the Board dismissed an opposition to registration of the mark AURI for "nutritional supplements in the form of gummies," concluding that confusion is unlikely with the two composite marks shown immediately below, for research, consultation, education, and various related services in the field of agriculture. The Board found that opposer failed to prove the relatedness of the involved goods and services, nor any overlap in channels of trade or classes of consumers. The Board analyzed in detail opposer's evidence of actual confusion (a substantial number of misdirected voice mails and emails) and found it of little probative value. This blog post will attempt to hit the high points. Agricultural Utilization Research Institute v. Ejec Ventures, LLC, Opposition No. 91292154 (October 8, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

The Marks: The Board found the term "auri" to be the dominant element in Opposer's marks: "the word 'auri' in stylized lowercase letters is '[d]isplayed in a large, bold typeface' and, to varying degrees, comprises the largest literal portion of the mark[s] in terms of size, position, and emphasis. It is also the first term in the mark[s], further establishing its prominence."

As to appearance, the Board observed that applicant's standard character mark could be displayed in a lower case form like that used by registrant. [And see applicant's specimen of use, below]. As to sound, for both of the cited marks, "the marks would sound similar because the word 'auri' is the first thing heard when Opposer’s mark is verbalized and the only thing heard when Applicant’s mark is verbalized." 

As to connotation and commercial impression, a consumer "could readily understand Applicant’s mark to be the acronym auri, and the word auri, in Opposer’s marks." And so, the Board found the marks to be similar in connotation and commercial impression.

Therefore, the first DuPont factor favored opposer.

The Goods/Services: On the issue of relatedness, Opposer submitted a single registration that covered both supplements and scientific research, which the Board found of limited probative value. Opposer's testimony that opposer "has provided services to several clients in the mushroom area" was vague and unsubstantiated. [Where is the "mushroom area" anyway? - ed.] The Board found that "Opposer’s services and Applicant’s goods are unrelated, and the second DuPont factor strongly supports a conclusion that confusion is not likely ...."

There was no evidence that opposer’s services "are rendered through any of the actual current and potential channels of trade in which nutritional supplements in the form of gummies are sold to consumers." Nor did the evidence show "the similarity of the consumers of nutritional supplements in the form of gummies and the consumers of the services identified in the ’975 and ’051 Registrations."

Nutritional supplements in the form of gummies are sold to individual consumers, while the services identified in the ’975 and ’051 Registrations are rendered to what Opposer’s website describes variously as “[l]eading agricultural institutions,” “businesses, farmers and entrepreneurs,” “[a]gricultural processors,” and “[f]ood and beverage entrepreneurs,” among other institutional clients. [Don't farmers take supplements? - ed.].

Purchaser Care: The Board found that "the least sophisticated potential purchaser of Opposer’s services is likely to exercise at least some degree of care in purchasing them, and that the least sophisticated potential purchaser of nutritional supplements in the form of gummies is also likely to exercise “at least a moderate degree of consumer care when purchasing [such] dietary supplements." The Board found the fourth DuPont factor to be neutral. [Seems like it favored Applicant - ed.]

Actual Confusion: Opposer pointed to 102 instances of purported actual confusion (emails and calls that it received). Many of the emails were from protective re-sellers and business partners, mostly "generic 'form' emails that could be sent to any company regarding resale of any product, and none of them refers to nutritional supplements in the form of gummies sold by Applicant." 

They are all solicitations offering services rather than customer emails. The Board has long recognized that persuasive evidence of actual confusion must show confusion as to source or sponsorship, not mere carelessness in attempts to contact a business. *** [B]ut even assuming that the senders were only trying to reach Applicant to purchase nutritional supplements in the form of gummies for resale, we find on this record that it is more likely than not that they reached Opposer because they searched the Internet using “Auri,” or a search term containing “Auri,” and selected Opposer’s website at its auri.org address rather than Applicant’s website at the less intuitive tryauri.com address.

The Board next considered four emails from consumers, and was likewise unimpressed. "We again find that it is more likely than not that the four consumer senders of emails to Opposer reached Opposer because they searched the Internet for 'Auri' and selected Opposer’s website at auri.org." Opposer did not attempt to reach any of these consumers to find out why and how they contacted Opposer: "without direct testimony from the supposedly confused individuals . . . there is insufficient evidence to ascertain what they were thinking, or whether they were actually confused."

We cannot infer that the consumers reached Opposer because they believed Opposer to be the source of the products that they had purchased rather than because they were careless in trying to find Applicant’s email address on the Internet.

Finally, the Board considered ten or so telephone voicemail messages and call summaries. "There is again no doubt that the callers were trying to call Applicant, but we are again confronted with the issue of why they called Opposer instead."

The number of misdirected emails and calls here is substantial, but in this context quantity does not have a quality all its own. On this record, the contacts are at least equally consistent with inattention and carelessness on the part of the senders and callers in using the Internet to locate Applicant as they are with the actual mistaken belief that Opposer sells Applicant’s gummies

The Board found that this evidence had limited probative value and did not support a finding of actual confusion. The seventh DuPont factor was deemed neutral.

Conclusion: The Board concluded that, although the marks are similar, "confusion is unlikely because the parties’ respective goods and services have not been shown to be related, and they are not offered through overlapping channels of trade to overlapping consumers." The second and third DuPont factors outweighed the first factor.

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TTABlogger comment: Misdirected phone calls and messages seem inevitable in the Internet age. If the "confused" consumers aren't asked to explain the circumstances, how can you present probative evidence of confusion as to source?

Text Copyright John L. Welch 2026.