Proof of One Incident of Actual Confusion Factors Into TTAB's Granting of Petition to Cancel ZEROLIQUID Registration for Water Filters

The Board granted this petition for cancellation of a registration for the mark ZEROLIQUID for filters for drinking water and related goods, finding confusion likely with the registered mark ZEROWATER for “water filtering units for household use" [WATER disclaimed]. Although deeming the petitioner's mark to be "highly suggestive" of the goods and therefore "entitled to a narrower scope of protection under the sixth DuPont factor," the Board found the involved marks to be "very similar, with the first DuPont factor weighing heavily in favor of likelihood of confusion." Petitioner’s evidence of a single instance of actual confusion lent some support under the seventh DuPont factor. Zero Technologies, LLC v. Hangzhou Yilin Technology Research Co., Ltd., Cancellation No. 92081980 (July 14, 2025) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

Actual Confusion: Respondent Hangzhou objected to petitioner's submission of an email petitioner received regarding an item purchased on Amazon, but it was Hangzhou's ZEROLIQUID product. Hangzhou argued that the email was hearsay, but the Board disagreed: "those statements are either not offered for their truth, and thus are not hearsay, or fall within the state of mind exception to the hearsay rule under Fed. R. Evid. 803(3). The Board, however, did sustain Hangzhou's objection to the attachments to the email (the label and Amazon.com receipt) because they were offered "for the truth of the matter asserted therein, that is, to show that the customer actually purchased and received ZEROLIQUID-branded replacement water filters." [Why aren't the documents corroborative of the customer's state of mind? - ed.]. "While a single instance is insufficient as evidence from which to conclude that applicant’s mark has consistently caused confusion, the single instance of confusion is at least ‘illustrative of a situation/"

Priority: In a cancellation proceeding in which both parties own registrations, priority of use is an issue. The filing date of the application underlying petitioner’s pleaded registration, February 25, 1999, preceded both the September 9, 2021 filing date of the application underlying Hangzhou's registration and its asserted first use dates of June 11, 2021.

Strength of Petitioner's Mark: Petitioner's evidence fell short of proving that its mark was commercially strong. As to inherent strength, "the nature of the mark itself and the third-party registrations lead us to conclude that the mark as a whole is highly suggestive of Petitioner’s “water filtering units for household use” and is conceptually weak."

The Marks: The Board observed that, on their face(s), "ZEROWATER and ZEROLIQUID bear certain similarities in appearance and sound. Both marks begin with the word ZERO as the prefix. The first word of a mark is often considered dominant as it is more likely to be noticed and remembered by consumers." Moreover, "[c]onsumers encountering the marks in the context of the goods—which are identified for use in filtering water—would perceive the marks as having a similar connotation, relating to the removal of contaminants from water."

Conclusion: "Balancing the factors, we find that Petitioner has shown, by a preponderance of the evidence, that confusion is likely when Petitioner’s and Respondent’s marks are used with their respectively identified goods, notwithstanding any conceptual weakness of Petitioner’s ZEROWATER mark."

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TTABlogger comment: This decision leaves a bad taste in my mouth. One incident of confusion? Gimmeabreak!

Text Copyright John L. Welch 2025.