CAFC Holds ‘X Dot’ Vape Mark Not Confusingly Similar to Cigar’s ‘X’ Trademark in Precedential Ruling

On April 9, 2026, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision affirming the Trademark Trial and Appeal Board’s (TTAB) dismissal of an opposition proceeding in Fuente Marketing Ltd. v. Vaporous Technologies, LLC. The court held that no likelihood of confusion exists between a standard character mark for the letter “X” used on cigars and tobacco accessories, and a stylized figure mark for oral vaporizers. The ruling reinforces the principle that a single DuPont factor—specifically the dissimilarity of the marks—can be dispositive in likelihood-of-confusion analysis.

Fuente Marketing Ltd. owns two standard character trademarks for the letter “X,” registered for use in connection with cigars, ashtrays (not of precious metal), cigar cutters, and lighters (not of precious metal). Vaporous Technologies, LLC, a manufacturer of oral vaporizers, filed an intent-to-use application with the U.S. Patent and Trademark Office (USPTO) seeking to register a stylized figure mark referred to as the “X Dot Mark” for oral vaporizers for smoking purposes. The mark, which depicts what the parties stipulated to be a stick figure, differs visually from a plain letter “X.” Fuente opposed the application, arguing that consumers would likely confuse the X Dot Mark with its own X marks.

The TTAB applied the multi-factor likelihood-of-confusion test established in In re E.I. DuPont de Nemours & Co. After weighing the relevant DuPont factors, the Board dismissed Fuente’s opposition. Although multiple factors—including the similarity of trade channels and the overlap in purchasing conditions—weighed in favor of confusion, the Board concluded that the first DuPont factor (similarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression) was decisive. Consumers, the Board found, would perceive the X Dot Mark as a stick figure rather than the letter “X,” meaning the marks differ in appearance, lack the same pronunciation (a stick figure has no phonetic equivalent), and create distinct commercial impressions.

On appeal, Fuente argued that the TTAB erred by treating the parties’ stipulation—which described the X Dot Mark as a stick figure—as conclusive. Writing for the court, Judge Hughes rejected this contention. The CAFC held that even if reliance on the stipulation were error, it was harmless: the Board independently reached the same dissimilarity conclusion without reference to the stipulation, and substantial evidence in the record supported the finding that consumers would perceive the mark as a stick figure rather than a letter.

Regarding the third and fourth DuPont factors, the Board found that oral vaporizers and cigars “travel in overlapping channels of trade” and are sold to some of the same customers who view vaping products as alternatives to cigars. The CAFC affirmed this analysis. Crucially, however, the court reiterated a foundational principle: registrability must be assessed based on the identification of goods stated in the application, not on real-world market conditions. Vaporous’s argument that current commercial realities demonstrated the trade channels were distinct was therefore unavailing.

On the fifth DuPont factor (fame of the senior mark), the Board found Fuente’s X mark to be arbitrary as applied to cigars and thus conceptually strong, but found its commercial strength limited. Even so, the decisive weight of the first factor—dissimilarity—carried the day for Vaporous. The CAFC quoted its own precedent: “The likelihood of confusion analysis is a balancing test, and a single DuPont factor ‘may be dispositive,’ especially where, like here, ‘that single factor is the dissimilarity of the marks.'”

This ruling carries several practical implications for trademark practitioners. First, when the first DuPont factor strongly demonstrates the dissimilarity of the marks at issue, that factor alone can overcome other factors pointing toward confusion—even where the goods travel in overlapping channels and share some customers. Second, the decision highlights the importance of how consumers will perceive a design mark. A mark that could theoretically be construed as a letter may nonetheless be treated as a pictorial element if the overall commercial impression is that of a non-alphabetic image. Companies in the tobacco, vaping, and related consumer products industries—where brand identity is central and product categories increasingly converge—should take note of this analysis when evaluating the registrability or enforceability of their marks.

The CAFC’s decision is precedential and can be cited in future TTAB and CAFC proceedings. As the electronic nicotine delivery systems sector continues to expand and legacy tobacco brands seek to protect their identities against newer product categories, Fuente v. Vaporous provides a clear framework for adjudicating similarity disputes between alphanumeric marks and stylized figure marks.