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 & Savitch LLP, San Diego, CA, argued for appellant. Also represented 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 affirm. 

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 registrations 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 Notice 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 Application No. 86/000,809 (“the ’809 application”) for a design 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 consultancy; 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 athletic apparel, including shirts, shorts, and jackets. The images 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” designs. 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 substantially 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 decision sustaining Hybrid’s opposition to Hylete’s registration. 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 “previouslyused 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 manner—as an arbitrary use of the stylized letter “H” for athletic clothing. J.A. 15–18. According to the Board, the 

average consumer would retain a general rather than specific 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 difference 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 compared side by side, but determined the fact that both are

stylized versions of the same letter outweighed those differences. The Board determined that the marks have similar 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 “misapprehension 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, thirtythree (33) of which are specifically used in connection 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, stating 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 arguments 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 underlying findings of facts. In re Chatam Int’l Inc., 380 F.3d 

1340, 1342 (Fed. Cir. 2004). The Board’s underlying findings of fact as to each DuPont factor are reviewed for substantial 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 common 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 clothing items sold under those marks?” Id. As such, Hylete 

raises on appeal arguments related only to Hybrid’s “composite 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 issues “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 reviewing 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 appropriately 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 apparel and submitted an exhibit showing its use of the socalled “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 application. 

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 incorrect 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 argue in its request for reconsideration that the Board erred 

by comparing the wrong marks. Hylete’s request for reconsideration instead focused on purported differences between 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 focused 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 reconsideration, Hylete took the position that the Board misapprehended 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 opposition proceedings or in the request for reconsideration 

but did not do so. Thus, none of the exceptional circumstances in which it is appropriate to consider arguments 

made for the first time on appeal are present here, and declining 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 common law mark” are raised for the first time on appeal and 

are therefore waived. 

CONCLUSION

Hylete waived its argument that Hylete’s mark is sufficiently 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.” Accordingly, we affirm.

AFFIRMED

COSTS

No costs.

 

consumers would view [Hylete’s] mark as a stylized H.” 

J.A. 25, 32.