Confusing a Stylized H

Hylete LLC v. Hybrid Athletics, LLC (Fed. Cir. 2019)

This case stems from an opposition action filed by Hybrid against Hylete’s mark that is pending registration. The senior mark Hybrid is associated with two cross-fit style gyms in Connecticut (flipping tires and carrying boulders). Hylete sells athletic apparel. During the opposition though, Hybrid provided evidence of use of its mark on athletic apparel as well.

The Trademark Trial and Appeal Board (TTAB) sided with the senior mark (Hybrid) and determined that Hylete’s mark “would likely cause confusion with Hybrid’s previously used mark . . . on some of the same goods, namely jackets, shorts, and shirts.”

Proving Ownership before the TTAB: At summary judgment stage, the opposer (Hybrid) submitted copies of its mark registrations to the TTAB. However, Hybrid did not re-submit those copies at the trial stage.  Because of that failure, the TTAB ruled that Hybrid could not rely upon any of its registered marks in proving likelihood of confusion.

Accordingly, on this record, Opposer has not established that it is owner of any of the registrations mentioned in its brief. As a consequence, Opposer must prove and rely only on its pleaded prior common law rights in its H design mark for purposes of establishing a likelihood of confusion with Applicant’s H design mark.

Board Decision of December 15, 2016.

Waiver: Although Hybrid was not able to rely upon its registered mark, the Board concluded that Hybrid also held common law rights in its mark and that Hylete’s mark was confusingly similar.

On appeal to the Federal Circuit, Hylete argued that Hybrid’s common law mark was different than the registered mark.  Namely, the common law mark is a composite that includes the trio shown above: (1) a stylized-H along with (2) the words “HYBRID ATHLETICS” and (3) a series of dots.  Hylete argued on appeal that the TTAB erred by failing to compare its mark with the whole of Hybrid’s usage.

Although this sounds like a potentially winning technical argument, the Federal Circuit refused to rule on the question — holding instead that the distinctions being raised here were new arguments “never raised before the Board and are therefore waived.”

Hybrid pleaded and put Hylete on notice of its claim to common law trademark rights from the initial filing of the Notice of Opposition and submitted evidence of its use of its mark on athletic apparel. Hylete could have raised the issue of Hybrid’s “composite common law mark” in the opposition proceedings or in the request for reconsideration but did not do so. Thus, none of the exceptional circumstances in which it is appropriate to consider arguments made for the first time on appeal are present here, and declining to consider Hylete’s new arguments does not result in injustice. See Golden Bridge, 527 F.3d at 1323. We hold that Hylete’s arguments based on Hybrid’s “composite common law mark” are raised for the first time on appeal and are therefore waived.

CAFC Decision.

= = =

I don’t want to stir the pot too much, but to my eyes both the Hybrid and Hylete marks seem quite similar to the registered mark of Under Armour.

22 thoughts on “Confusing a Stylized H

  1. 4

    “At summary judgment stage, the opposer (Hybrid) submitted copies of its mark registrations to the TTAB. However, Hybrid did not re-submit those copies at the trial stage. Because of that failure, the TTAB ruled that Hybrid could not rely upon any of its registered marks in proving likelihood of confusion.”
    This seems like a hypertechnical paper formalities reason [reminiscent of ancient common law pleadings] in this electronics era for such a substantive decision if the PTO’s own TM records and the prior submission of copies to the other party were not even being contested? Was there more missing here that prejudiced the other party?

  2. 3

    Everybody who voted for Donald Trump or who defends him or who supports the Repu k k k e Party is an @ h0le or an i d- I 0 t.

    It’s that simple. And failing to point this fact out is part of the problem.

  3. 2

    Meanwhile in a deleted sub thread from another post, Night Wiper admits that he believes that the patenting of correlations isn’t a problem because “it’s hard to enforce.”

    The “editors” here decided to delete that sub thread, or more likely they were just careless. Because who cares that patent maximalists are always cl ue le ss idjits? Pointing that out with endless examples is soooo uncivil, after all.

    1. 2.1

      You just don’t get it, do you Malcolm?

      It is not about “lack of civility” on its own.

      It is a lack of civility coupled with being inappropriately OFF POINT.

      You would think that YOU would have learned this lesson by now, what, with you having more posts expunged than all others combined and all.

      But no — you keep on applying that ‘special’ one-bucketing mechanism in which your views (no matter what topic, including non-patent law rants) are ‘de facto above the rules,’ and ALL other views (along the entire spectrum of views), are in the same bucket of “E V 1 L.”

    2. 2.2

      more likely they were just careless.

      Too funny.

      You whine about “careless” when your own actions far exceed careless and go into being reckless…

      Further, near as I can tell, when a post is expunged under the new posting system, it is difficult to not expunge any of the sub-tier posts. As I recall, attempts to do so tended to jumble up the post numbering system.

      So, Malcolm, your expungement count includes the collateral damage of posts of others being expunged because YOU feel that actually paying attention to what this forum is for just does not apply to you.


          I am more than positive that those sharp words are NOT what John Maynard Keynes had in mind.

          Let’s see some minimal level of effort here Malcom.

    3. 2.3

      The important thing — and someday Dennis will understand this — is to identify the “thinking” (to putvit kindly) that motivates unintelligent people to support cr @p statutes proposed by thoughtless people (including Dennis’ buddies).

      Sometimes that “thinking” is easily inferred. Other times it’s just admitted. And yes there’s some rich irony in that, but it will never be appreciated by the likes of you or your bff Night Wiper. Or Dennis, for that matter.

      1. 2.3.1

        Oh N 0 E S !!

        Someone is thinking differently than Malcolm and — gasp — may want to pursue obtaining protection of intellectual property in order to make money.

        How in the world does Malcolm handle any such people? (which, not coincidently, includes most all of any ‘clients’ that Malcolm professes to have).


          Its not about you and your cohorts “thinking different”, you f—king piece of sh-t.

          It’s about being totally wrong and lying. F-ck off.


            about being totally wrong and lying.

            Malcolm and his number one meme of Accuse Others — he really is the Trump of these boards.

            The irony is of course stultifying.


                Did Night Writer say that you have been nothing but an arse, that you are the Trump of these boards, that you routinely Accuse Others of doing and being what you do and are?

                If so, then I agree with his statements to this effect.

  4. 1

    Well, that Under Armor is clearly not one letter (“H”), but is a hybrid of two letters, “U” overlapping an “A.”

      1. 1.1.1

        …and here I thought that you would go with the intrusion of Free Speech for the letter “H” (think of the horrors of Sesame Street), or the view that “H” is merely an abstraction…

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