United States Court of Appeals
`for the Federal Circuit
`______________________
`
`HYLETE LLC,
`Appellant
`
`v.
`
`HYBRID ATHLETICS, LLC,
`Appellee
`______________________
`
`2017-2057
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Trademark Trial and Appeal Board in No.
`91213057.
`
`______________________
`
`Decided: August 1, 2019
`______________________
`
`PATTRIC RAWLINS, Procopio, Cory, Hargreaves & Sa-
`vitch LLP, San Diego, CA, argued for appellant. Also rep-
`resented by DAVE DEONARINE.
`
` MICHAEL JOSEPH KOSMA, Whitmyer IP Group LLC,
`Stamford, CT, argued for appellee. Also represented by
`BENJAMIN N. LUEHRS.
` ______________________
`
`Before MOORE, REYNA, and WALLACH, Circuit Judges.
`
`
`for the Federal Circuit
`______________________
`
`HYLETE LLC,
`Appellant
`
`v.
`
`HYBRID ATHLETICS, LLC,
`Appellee
`______________________
`
`2017-2057
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Trademark Trial and Appeal Board in No.
`91213057.
`
`______________________
`
`Decided: August 1, 2019
`______________________
`
`PATTRIC RAWLINS, Procopio, Cory, Hargreaves & Sa-
`vitch LLP, San Diego, CA, argued for appellant. Also rep-
`resented by DAVE DEONARINE.
`
` MICHAEL JOSEPH KOSMA, Whitmyer IP Group LLC,
`Stamford, CT, argued for appellee. Also represented by
`BENJAMIN N. LUEHRS.
` ______________________
`
`Before MOORE, REYNA, and WALLACH, Circuit Judges.
`
`
`
`2
`
`HYLETE LLC v. HYBRID ATHLETICS, LLC
`
`REYNA, Circuit Judge.
`Hylete LLC appeals from a decision of the Trademark
`Trial and Appeal Board sustaining Hybrid Athletics, LLC’s
`opposition to Hylete’s trademark registration application.
`We conclude that Hylete waived the arguments on which
`its appeal relies because it raises new issues that could
`have been raised and were not considered below. We af-
`firm.
`
`BACKGROUND
`In January 2013, Hylete applied to register a design
`mark for a stylized letter “H” in International Class 25 for
`“[a]thletic apparel, namely, shirts, pants, shorts, jackets,
`footwear, hats and caps.” J.A. 76–92. After finding no reg-
`istrations that would bar registration of the Hylete mark,
`the Examining Attorney approved the application, and the
`Trademark Office published the Hylete mark for opposition
`in the Trademark Official Gazette on June 18, 2013.
`On October 16, 2013, Hybrid Athletics, LLC filed a No-
`tice of Opposition on the grounds of likelihood of confusion
`with its mark under Section 2(d) of the Lanham Act, 15
`U.S.C. § 1052(d). Hybrid’s mark is also a stylized letter
`“H.” The two marks are shown in the chart below:
`
`Hylete’s Mark
`
`Hybrid’s Mark
`
`
`
`
`
`
`
`
`
`HYLETE LLC v. HYBRID ATHLETICS, LLC
`
`3
`
`Hybrid’s Notice of Opposition pleaded ownership in Ap-
`plication No. 86/000,809 (“the ’809 application”) for a de-
`sign mark of its stylized “H” used “in connection with
`conducting fitness classes; health club services, namely,
`providing instruction and equipment in the field of physical
`exercise; personal fitness training services and consul-
`tancy; physical fitness
`instruction”
`in International
`Class 41. J.A. 3, 98–99. Hybrid also pleaded common law
`rights from its use of the same mark on “athletic apparel,
`including shirts, hats, shorts and socks” since August 1,
`2008. Id.
`During opposition proceedings before the Trademark
`Trial and Appeal Board (“Board”), Hybrid submitted as an
`exhibit several images depicting the use of its mark on ath-
`letic apparel, including shirts, shorts, and jackets. The im-
`ages showed Hybrid’s stylized “H” design appearing on the
`apparel above the phrase “Hybrid Athletics” and several
`dots:
`
`J.A. 12.
`
`
`
`4
`
`HYLETE LLC v. HYBRID ATHLETICS, LLC
`
`In its briefing before the Board, Hylete focused on the
`differences in appearance between the two stylized “H” de-
`signs. It argued that its mark was a “highly stylized design
`logo” that “is substantially dissimilar from [Hybrid’s] letter
`‘H’ design logo” and “the lettering style of each mark is sub-
`stantially dissimilar in appearance and each mark exudes
`its own distinct commercial expression.” J.A. 405–07
`(heading capitalization removed). Hylete further argued
`that “the stylization of [Hybrid’s] mark[] emphasizes its
`representation as an ‘H,’ whereas [Hylete’s] mark is a
`highly stylized design.” J.A. 407 (graphics removed).
`On December 15, 2016, the Board issued its final deci-
`sion sustaining Hybrid’s opposition to Hylete’s registra-
`tion. J.A. 2–23. Balancing the relevant factors as set forth
`in In re E.I. DuPont DeNemours & Co., 476 F.2d 1357
`(CCPA 1973), the Board 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.” J.A. 22–23. The Board also found that
`Hybrid failed to establish ownership of the ’809 application
`and based its conclusions only on Hybrid’s prior common
`law rights. J.A. 6.
`As to the similarity of the marks, the Board recognized
`that both marks are stylized versions of the letter “H,” that
`both parties’ names begin with the letter “H,” and that even
`if consumers attribute no specific meaning to the letter “H,”
`they may nonetheless view the marks in the same man-
`ner—as an arbitrary use of the stylized letter “H” for ath-
`letic clothing. J.A. 15–18. According to the Board, the
`average consumer would retain a general rather than spe-
`cific impression of the marks. J.A. 16 (citing Grandpa
`Pidgeon’s of Mo., Inc. v. Borgsmiller, 477 F.2d 586, 587
`(CCPA 1973) (noting that the marks in question had “a dif-
`ference not likely to be recalled by purchasers seeing the
`marks at spaced intervals”)).
`
`
`
`HYLETE LLC v. HYBRID ATHLETICS, LLC
`
`5
`
`The Board considered various design similarities and
`differences between the two marks. It acknowledged that
`specific differences can be seen when the marks are com-
`pared side by side, but determined the fact that both are
`stylized versions of the same letter outweighed those dif-
`ferences. The Board determined that the marks have sim-
`ilar commercial impressions and concluded that Hylete’s
`mark is likely to cause confusion with Hybrid’s previously
`used mark.
`Hylete filed a request for reconsideration of the Board’s
`final decision. Hylete asserted that the Board erred in
`three respects, including the Board’s purported “misappre-
`hension of the commercial impression of [Hylete’s] mark.”
`J.A. 25. Hylete argued “[t]here was no record evidence
`demonstrating that consumers would view [Hylete’s] mark
`as a stylized H.” J.A. 32. Hylete focused on its own mark
`and did not argue that the Board’s analysis should have
`compared its mark to anything other than Hybrid’s stylized
`letter “H” design mark.
`The Board addressed Hylete’s commercial-impression
`argument by noting its “stark contrast” with Hylete’s own
`characterization of its mark as a stylized letter “H” in its
`briefing:
`When the Board performs its analysis, it will find
`two distinct letter “H” marks that already co-exist
`with one hundred and thirty five (135) other “H”
`marks registered to International Class 25, thirty-
`three (33) of which are specifically used in connec-
`tion with athletic-related clothing.
`J.A. 32–33 (quoting Hylete’s trial brief). The Board also
`noted that Hylete’s arguments based on how the marks
`would be perceived relied on testimony from its CEO, stat-
`ing that he did not “see how anyone looking at these two
`logos would think they look alike” but admitting “they both
`are H’s [sic].” J.A. 33 (emphases added). The Board
`
`
`
`6
`
`HYLETE LLC v. HYBRID ATHLETICS, LLC
`
`therefore rejected Hylete’s commercial-impression argu-
`ments and denied the request for rehearing. Id.
`Hylete appeals. We have jurisdiction under 28 U.S.C.
`§ 1295(a)(4)(B) and 15 U.S.C. § 1071(a)(1).
`DISCUSSION
`We review the Board’s legal conclusions de novo and its
`factual
`findings
`for substantial evidence.
` In re
`I.AM.Symbolic, LLC, 866 F.3d 1315, 1322 (Fed. Cir. 2017).
`Likelihood of confusion is a question of law based on under-
`lying findings of facts. In re Chatam Int’l Inc., 380 F.3d
`1340, 1342 (Fed. Cir. 2004). The Board’s underlying find-
`ings of fact as to each DuPont factor are reviewed for sub-
`stantial evidence. Id. Substantial evidence is “such
`relevant evidence [that] a reasonable mind would accept as
`adequate to support a conclusion.” I.AM.Symbolic, 866
`F.3d at 1322 (internal quotations omitted).
`On appeal, Hylete argues that the Board erred in its
`analysis by failing to compare Hylete’s stylized “H” mark
`with what it now characterizes as Hybrid’s “composite com-
`mon law mark,” referring to Hybrid’s stylized “H” design
`appearing above the phrase “Hybrid Athletics” and several
`dots, as shown below:
`
`Appellant Br. 6. According to Hylete, the issues in “this
`appeal may be summarized into a single question: is
`Hylete’s mark sufficiently similar to [Hybrid’s] composite
`common law mark to be likely to cause confusion on the
`
`
`
`HYLETE LLC v. HYBRID ATHLETICS, LLC
`
`7
`
`part of the ordinary consumer as to the source of the cloth-
`ing items sold under those marks?” Id. As such, Hylete
`raises on appeal arguments related only to Hybrid’s “com-
`posite common law mark.”
`Hybrid responds that Hylete’s “composite common law
`mark” arguments were never raised before the Board and
`are therefore waived. Appellee Br. 20–22. We therefore
`first review whether Hylete waived its arguments by not
`raising them during the proceedings below. We conclude
`that those arguments are waived.
`Generally, federal appellate courts do not consider is-
`sues “not passed upon below” or entertain arguments not
`presented to the lower tribunal. Golden Bridge Tech., Inc.
`v. Nokia, Inc., 527 F.3d 1318, 1322 (Fed. Cir. 2008).
`“[A]bsent exceptional circumstances, a party cannot raise
`on appeal legal issues not raised and considered in the trial
`forum.” Finch v. Hughes Aircraft Co., 926 F.2d 1574, 1576
`(Fed. Cir. 1991); see also Sw. Software, Inc. v. Harlequin
`Inc., 226 F.3d 1280, 1289 n.7 (Fed. Cir. 2000).
`We have articulated limited circumstances in which
`considering arguments made for the first time on appeal is
`appropriate: (1) “[w]hen new legislation is passed while an
`appeal is pending, courts have an obligation to apply the
`new law if Congress intended retroactive application even
`though the issue was not decided or raised below”; (2)
`“when there is a change in the jurisprudence of the review-
`ing court or the Supreme Court after consideration of the
`case by the lower court”; (3) “appellate courts may apply
`the correct law even if the parties did not argue it below
`and the court below did not decide it, but only if an issue is
`properly before the court”; and (4) “where a party appeared
`pro se before the lower court, a court of appeals may appro-
`priately be less stringent in requiring that the issue have
`been raised explicitly below.” Golden Bridge, 527 F.3d at
`1322–23 (quoting Forshey v. Principi, 284 F.3d 1335, 1353–
`57 (Fed. Cir. 2002)).
`
`
`
`8
`
`HYLETE LLC v. HYBRID ATHLETICS, LLC
`
`Hylete does not dispute that it did not present to the
`Board the question of whether Hylete’s mark is sufficiently
`similar to Hybrid’s “composite common law mark” to cause
`a likelihood of confusion. Hybrid pleaded common law
`rights to its mark based on use of the mark on athletic ap-
`parel and submitted an exhibit showing its use of the so-
`called “composite common law mark” on athletic apparel.
`Yet Hylete’s arguments in both its briefing to the Board
`and its request for reconsideration remained focused on the
`differences between the two stylized “H” design marks.
`Hylete never contended that Hybrid’s common law rights
`implicated a “composite common law mark” that differed
`from the stylized “H” design mark identified in the ’809 ap-
`plication.
`Hylete now attempts to avoid waiver by contending
`that the Board “sua sponte” raised the issue of Hybrid’s
`common law rights in the final decision and used an incor-
`rect legal standard in comparing the two marks. Appellant
`Reply Br. 4. Hylete’s failure to raise that argument in the
`request for reconsideration negates its contention. Even
`after the Board purportedly raised the issue of Hybrid’s
`common law rights in its final decision, Hylete did not ar-
`gue in its request for reconsideration that the Board erred
`by comparing the wrong marks. Hylete’s request for recon-
`sideration instead focused on purported differences be-
`tween its mark and Hybrid’s stylized “H” design mark, and
`not on Hybrid’s “composite common law mark.”1
`
`
`1 Hylete in fact made contradictory arguments fo-
`cused on the stylized “H” design mark. It first admitted
`that its own mark was a letter “H” before the Board’s final
`decision. J.A. 32–33. And in the request for reconsidera-
`tion, Hylete took the position that the Board misappre-
`hended the commercial impression of Hylete’s mark and
`“there was no record evidence demonstrating that
`
`
`
`
`HYLETE LLC v. HYBRID ATHLETICS, LLC
`
`9
`
`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 op-
`position proceedings or in the request for reconsideration
`but did not do so. Thus, none of the exceptional circum-
`stances in which it is appropriate to consider arguments
`made for the first time on appeal are present here, and de-
`clining 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 com-
`mon law mark” are raised for the first time on appeal and
`are therefore waived.
`CONCLUSION
`Hylete waived its argument that Hylete’s mark is suf-
`ficiently different from Hybrid’s “composite common law
`mark” to avoid a likelihood of confusion as to the source of
`the athletic apparel sold bearing those marks. We do not
`address the Board’s analysis of the DuPont factors relating
`to Hybrid’s mark; the only issues Hylete raises on appeal
`concern Hybrid’s “composite common law mark.” Accord-
`ingly, we affirm.
`
`AFFIRMED
`COSTS
`
`No costs.
`
`
`consumers would view [Hylete’s] mark as a stylized H.”
`J.A. 25, 32.
`
`
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