Does it matter how many products the earlier mark is used on?

Buyers learn from experience. A brand that already sells shoes, bags, sunglasses and watches teaches buyers to expect it on almost anything worn or carried. A newcomer that puts a similar mark on belts walks into that expectation. A brand known for one product only teaches no such lesson.

For the earlier owner, a broad product line is a reason to argue that confusion reaches beyond the goods it lists. For the newcomer, a narrow line on the other side is a reason to argue that buyers would not assume the connection.

The ninth factor in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973), is “the variety of goods on which a mark is or is not used (house mark, ‘family’ mark, product mark).”

The line-extension idea. The Board has put it this way: “If a party in the position of plaintiff uses its mark on a wide variety of goods, then purchasers are more likely to view a defendant’s related good under a similar mark as an extension of the plaintiff’s line.” DeVivo v. Ortiz, 2020 U.S.P.Q.2d (BNA) 10153 (T.T.A.B. 2020).

House mark, family mark, product mark. The factor names three kinds of marks.

• A house mark is used across a company’s whole range, often with other product marks. Its breadth is the point.
• A family mark is a group of marks that share a common feature the public associates with one owner. A family is not proved by owning several registrations. The owner must show the public recognizes the shared feature as its own, through use and promotion. U.S. Pat. & Trademark Off., Trademark Manual of Examining Procedure § 1207.01(d)(xi) (May 2026) [hereinafter TMEP].
• A product mark names one product. It usually supports a narrower reach.

How it relates to factor 2. Factor 2 asks whether the goods are related, and the evidence is usually third-party registrations and websites showing that many companies sell both kinds of goods under one mark. Factor 9 asks a narrower question about this owner: how broad is its own use of its own mark. The two often point the same way, but they are separate.

Where it comes up. In an application, the registrant is not part of the case, and the examining attorney works mainly from the registration and third-party evidence. Proof of how widely the registrant actually uses its mark rarely appears there. The factor does most of its work in oppositions and cancellations, where the earlier owner can put in evidence of its own product range.

What evidence moves it. Proof of actual use of the mark across many kinds of goods, with dates. Catalogs, product pages, and sales by product line. Evidence that the owner has expanded into new categories over time. For a claimed family, advertising that promotes the shared feature itself.

Common mistakes. Treating a long identification of goods in a registration as proof that the mark is actually used on all of them. Claiming a family of marks from a portfolio of registrations alone. Arguing this factor when the goods are identical, where it adds nothing. And an applicant pointing to the variety of its own goods, which is not what the factor measures.

No record in this library carries a finding on factor 9. That is true of all 38 records in this library that code du Pont factors (library as of 2026-09-19; a curated collection, not a random sample).

That does not mean the Board ignores the factor. It means that in the decisions coded so far, the factor was not recorded as affecting the outcome. That fits the forum. Of the 38, 32 are ex parte appeals from refusals, where evidence of the registrant’s own product range is seldom in the record.

If you are choosing a name, look at what the owner of a similar mark actually sells, not only what its registration lists. A brand that already stretches across many categories is harder to live next to, even in a neighboring category. A single-product brand leaves more room.

If you own the earlier mark, keep dated records of every product line you launch under it. That record is what this factor runs on if you ever oppose or seek to cancel a similar mark.

Checking a competitor’s product range is research you can do yourself. Building the evidence for an opposition or cancellation, or answering one, is legal work, and that is where a lawyer earns the fee.

If you are facing an opposition or considering one, Valet Law, PLLC can review both parties’ product lines and tell you how much weight this factor is likely to carry.

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.