Hylete LLC v. Hybrid Athletics, LLC, 931 F.3d 1170

Hylete applied in 2013 to register a stylized letter “H” design mark for athletic apparel (Class 25); the PTO published the application for opposition.
Hybrid Athletics opposed under Lanham Act § 2(d), alleging likelihood of confusion with its own stylized “H” used on fitness services and athletic apparel (common-law rights) and asserting an application for a stylized H (the ’809 application).
During Board proceedings, Hybrid submitted photos showing its stylized H used above the words “Hybrid Athletics” and dots on apparel (what Hylete later calls the “composite common law mark”).
The Board found the marks (both stylized H’s) have similar commercial impressions and sustained the opposition under the DuPont likelihood-of-confusion framework as to some overlapping goods (jackets, shorts, shirts), relying on Hybrid’s common-law use.
Hylete requested reconsideration arguing the Board misapprehended Hylete’s commercial impression (contending consumers would not view Hylete’s mark as an H), but continued to focus on the stylized-H-to-stylized-H comparison.
On appeal Hylete argued only that its mark is not confusingly similar to Hybrid’s “composite common law mark” (stylized H above “Hybrid Athletics” and dots); the Federal Circuit held those arguments waived because Hylete failed to raise them before the Board.

Issue	Plaintiff's Argument (Hylete)	Defendant's Argument (Hybrid)	Held
Whether Hylete can argue on appeal that its mark differs from Hybrid’s "composite common law mark"	Hylete: its mark is not similar to Hybrid’s composite common law mark and thus no likelihood of confusion	Hybrid: Hylete never raised the composite-mark theory before the Board; issue is waived	Waived: appellate court refused to consider arguments raised for first time on appeal
Whether Board misidentified the proper mark for comparison	Hylete: Board used wrong comparator (should be Hybrid’s composite mark shown on apparel)	Hybrid: Notice and evidence put Hylete on notice of common-law use; Hylete could have litigated composite mark below	Held: Hylete failed to raise this below; no relief
Whether exceptional circumstances justify consideration of new issues on appeal	Hylete: claimed Board raised common-law issue sua sponte in final decision	Hybrid: Hylete did not challenge that specific error in its rehearing request; no exceptional circumstances	Held: No exceptional circumstances; standard waiver rules apply
Whether Board’s DuPont analysis should be reviewed on the new composite-mark theory	Hylete: asks Court to reassess likelihood-of-confusion under composite-mark comparison	Hybrid: argues court should not reach merits because issue was not litigated below	Held: Court declined to reach DuPont merits because appeal limited to waived issue; affirmed Board decision

In re E.I. DuPont DeNemours & Co., 476 F.2d 1357 (CCPA 1973) (factors for likelihood-of-confusion analysis)
Grandpa Pidgeon’s of Mo., Inc. v. Borgsmiller, 477 F.2d 586 (CCPA 1973) (consumer recollection and impression in mark comparison)
Golden Bridge Tech., Inc. v. Nokia, Inc., 527 F.3d 1318 (Fed. Cir. 2008) (limitations on raising new issues on appeal; exceptions)
Finch v. Hughes Aircraft Co., 926 F.2d 1574 (Fed. Cir. 1991) (appellate courts generally decline issues not raised below)
Sw. Software, Inc. v. Harlequin Inc., 226 F.3d 1280 (Fed. Cir. 2000) (same)
In re I.AM.Symbolic, LLC, 866 F.3d 1315 (Fed. Cir. 2017) (standard of review: legal conclusions de novo; factual findings for substantial evidence)
In re Chatam Int’l Inc., 380 F.3d 1340 (Fed. Cir. 2004) (likelihood-of-confusion is a legal question based on facts)
Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (exceptions for addressing new legal issues on appeal)