Does it matter how carefully buyers shop?

This is often the best argument left when the marks are close and the goods overlap. It has decided cases: the Board has allowed a mark over an identical one where buyers were shown to plan carefully before buying.

It also fails often, for a reason that has nothing to do with how careful the buyers really are. If the identification covers cheap versions of the goods, the Board assumes cheap buyers.

The fourth du Pont factor is “the conditions under which and buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973); U.S. Pat. & Trademark Off., Trademark Manual of Examining Procedure § 1207.01(d)(vii) (May 2026) [hereinafter TMEP].

The Board asks how the buyers covered by the identifications make the purchase. Its decision must rest on the least sophisticated potential purchasers. Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014). If the identification covers both expert and ordinary buyers, the ordinary buyer sets the standard.

The identification also sets the price. An applicant cannot narrow the goods by argument or outside evidence about their quality or price. TMEP § 1207.01(a)(iii). “Furniture” includes cheap furniture, even if both parties sell only expensive pieces.

Circumstances that show care in purchasing may reduce the likelihood of confusion. In re N.A.D. Inc., 754 F.2d 996, 999–1000 (Fed. Cir. 1985). But sophistication in a field does not make a buyer immune to source confusion. “[E]ven sophisticated purchasers can be confused by very similar marks.” In re Shell Oil Co., 992 F.2d 1204, 1208 (Fed. Cir. 1993); TMEP § 1207.01(d)(vii).

The factor therefore does its best work when the marks have real differences. Careful buyers notice differences. They do not help much when there is nothing to notice.

Argument alone is weak. The record needs facts about how the purchase happens:

• The price range that the identification actually covers.
• How long the buying process takes, and who approves it.
• Testimony or declarations from people who make or manage the purchases.
• Evidence that the buyers are professionals choosing for a business.

In an ex parte appeal, the applicant supplies this evidence and the registrant is not there to contest it. In an opposition, both sides can take testimony. The legal standard is the same in both.

• Arguing that your own customers are sophisticated, when the cited registration covers everyone.
• Relying on your price, when neither identification states a price.
• Treating “expensive” as enough when the marks are identical.
• Offering attorney argument with no declaration or other evidence behind it.

23 of the 38 records in this library that code du Pont factors carry a finding on factor 4 (library as of 2026-09-19; a curated collection, not a random sample).

The finding weighs for the applicant in 6, toward confusion in 11, and is neutral in 5. The last record (In re I-Coat Co.) carries three entries under this factor, one of them a trade-channels point; it is a coding defect and is not sorted here. Three of the 22 sorted records are coded as driving the result: two for the applicant and one toward confusion. Of the 6 coded for the applicant, the Board allowed the mark in 4 and refused it in 2, where other factors outweighed buyer care.

Care decided it. AMERICAN CONSTELLATION was allowed for cruise ship services over CONSTELLATION and CELEBRITY CONSTELLATION, though the marks were similar and the services identical. The Board found cruise passengers research and plan carefully before buying. That finding was corroborated by unrebutted testimony from both companies’ officers, and the two companies’ detailed agreement not to confuse consumers also weighed in the result.

Care was not enough. GALOIS for semiconductor wafer inspection machines was refused over GALOIS for cameras and scanners. The Board agreed these highly technical machines are bought carefully by informed buyers. That alone could not overcome identical marks on related goods.

The identification set the buyer. The HUGHES FURNITURE logo was refused over BRADLEY HUGHES for identical furniture. Because neither identification was restricted, both covered furniture at all price points, and the Board could not assume heightened care.

Read both identifications first. If either covers ordinary consumers or low-priced goods, this factor will likely be neutral or worse, and your effort belongs elsewhere.

If both identifications cover only goods or services that buyers choose slowly and at real cost, build the record. Gather price information, a description of the buying process, and declarations from people who know it. Pair the argument with whatever differences exist between the marks.

Checking the identifications is something you can do yourself. Building declarations that the Board will credit is legal work. If you have a refusal and your buyers are genuinely careful, Valet Law, PLLC can tell you whether the identifications leave room for the argument and what evidence it needs.

Attorney review is provided by Valet Law, PLLC, a law firm separate from Trademark Valet, LLC. Keep confidential facts out of public tools. Your first message to Valet Law should identify the parties and the general issue only. Wait until Valet Law confirms it can discuss the matter before sending confidential details.