Does it matter where the products are sold?

Trade channels decide whether the same buyer is likely to meet both marks. Two identical names sold to different buyers in different places pose less risk than two similar names on the same shelf.

The paper rule surprises most business owners. A company that sells only through its own salon, or only to hospitals, often assumes that fact protects it. It protects it only if the identification says so, and only if the other side’s identification is limited too.

The third du Pont factor is “the similarity or dissimilarity of established, likely-to-continue trade channels.” In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973). The USPTO treats it together with the identification rules in TMEP § 1207.01(a)(iii).

The factor “must be evaluated with an eye toward the channels specified in the application and registration, not those as they exist in the real world.” In re Detroit Athletic Co., 903 F.3d 1297, 1308 (Fed. Cir. 2018).

Two presumptions do most of the work:

• Unrestricted identifications. If a registration describes goods broadly, with no limit on type, channels or buyers, it is presumed to cover all normal channels of trade and all classes of buyers. U.S. Pat. & Trademark Off., Trademark Manual of Examining Procedure § 1207.01(a)(iii) (May 2026) [hereinafter TMEP].
• Identical goods. Absent restrictions in the application and registration, identical goods are presumed to travel in the same channels of trade to the same class of purchasers. In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012).

When the presumptions apply, evidence rarely overcomes them. Evidence matters most when the goods are related but not identical. Then the record can show whether the same stores, websites or distributors carry both kinds of goods.

A restriction in the identification matters only if it is real and appears on both sides. Limiting your own goods to one channel does not help when the cited registration is unrestricted. TMEP § 1207.01(a)(iii). A limit that describes who is associated with the goods, rather than where they are sold, may not restrict channels at all. In re i.am.symbolic, llc, 866 F.3d 1315, 1326 (Fed. Cir. 2017) (an identification limited to goods “associated with” will.i.am imposed no meaningful limit on channels or buyers).

In most cases the factor follows the goods. Identical or overlapping goods lead to presumed overlapping channels, and the factor weighs toward confusion. It moves the other way mainly when the goods differ and the record shows that different sellers carry them.

The paper rule governs both. An applicant may not narrow the cited registration by argument or outside evidence about price, quality or actual sales. TMEP § 1207.01(a)(iii). In an ex parte appeal, an argument that the registrant’s real channels are narrower than its registration is an attack on the registration. That belongs in a cancellation proceeding. TMEP § 1207.01(d)(iv); In re Dixie Rests., Inc., 105 F.3d 1405, 1408 (Fed. Cir. 1997).

• Proving how the registrant actually sells, when its registration says nothing about channels.
• Adding a channel restriction to your own application and expecting it to cure the refusal.
• Treating “we sell only online” or “only to professionals” as a fact the Board will consider without an identification that says so.
• Ignoring the factor when the goods are only related. That is where a trade-channel record can help.

27 of the 38 records in this library that code du Pont factors carry a finding on factor 3 (library as of 2026-09-19; a curated collection, not a random sample).

In 22 of the 27, the coded note says the Board relied on unrestricted identifications or on the presumption that identical goods share channels. Only one note records the channels as different. That reading is ours, from the coded notes.

The exception. TERRAIN for towable RV trailers was allowed over TERRAIN for trucks. On channels, only three of nine websites in the record offered both products, and the Board found the channels not sufficiently similar.

The presumption at work. TIME TRAVELER BLONDE was refused for beer over TIME TRAVELER for beer, ale and lager. Because the goods were at least in part legally identical, the Board presumed identical channels and buyers. It named liquor stores, the beer sections of grocery and convenience stores, bars and restaurants, sold to ordinary consumers.

Channels for goods against services. FCA’s MOAB for vehicles and parts was refused over MOAB INDUSTRIES for automotive conversion services. The Board found conversion businesses serve as a conduit through which automotive parts and equipment reach consumers.

Before filing, decide whether a channel or buyer limit is true of your business for the life of the mark. If it is, it may belong in your identification. If it is not, leave it out. A limit you later outgrow still binds the registration.

If you have a refusal, check the cited registration first. If its identification has no channel limits, a trade-channel argument will rarely carry the response alone. Put your effort where the record can move: the marks, the relatedness evidence, or a consent agreement with the registrant.

Reading an identification for limits is something you can do yourself. Deciding whether to argue channels, seek consent, or bring a cancellation is where a lawyer earns the fee. If you have this refusal, Valet Law, PLLC can review both identifications and tell you whether channels are worth arguing.

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.