  United States Court of Appeals
      for the Federal Circuit
               ______________________

     OMAHA STEAKS INTERNATIONAL, INC.,
                 Appellant

                          v.

      GREATER OMAHA PACKING CO., INC.,
                   Appellee
            ______________________

                     2018-1152
               ______________________

    Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in Nos.
91213527, 92059455, 92059629.
                 ______________________

             Decided: November 15, 2018
               ______________________

  NORA MARIE KANE, Omaha Steaks International, Inc.,
Omaha, NE, argued for appellant.

    I. STEPHEN SAMUELS, Samuels & Hiebert, LLC, Bos-
ton, MA, argued for appellee.
                 ______________________
2           OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                             PACKING CO.




    Before PROST, Chief Judge, O’MALLEY and STOLL,
                    Circuit Judges.
PROST, Chief Judge.
    Omaha Steaks International, Inc. (“Omaha Steaks”)
appeals a decision of the Trademark Trial and Appeal
Board (“Board”) dismissing its opposition (No. 91213527)
to Greater Omaha Packing Co., Inc.’s (“GOP”) application
to register the mark “GREATER OMAHA PROVIDING
THE HIGHEST QUALITY BEEF” (“Opposed Mark”) for
meat, including boxed beef primal cuts. The Board con-
cluded that there is no likelihood of confusion between the
Opposed Mark and Omaha Steaks’ previously registered
trademarks. We conclude that the Board made certain
errors while analyzing the fame of the registered mark,
third-party usage, and similarity of the marks. Accord-
ingly, we vacate and remand.
                      BACKGROUND
                             I
     Appellant began as Table Supply Meat Company in
1917. Around 1959, Appellant started doing business as
Omaha Steaks. Omaha Steaks acquires “subprimals,” or
larger cuts of meat (such as the loin or bovine loin), for
further processing. It cleans them up, takes the tendons
off, and packages the processed meat for sale under an
Omaha Steaks mark.
    Omaha Steaks has over two-dozen registrations for
Omaha Steaks marks. All of those registrations include
the words “Omaha Steaks.”
    According to Mr. Todd Simon, Omaha Steaks’ senior
vice president of sales and marketing, the company spent
over $45 million in 2011, and over $50 million in 2012 and
2013, on domestic advertising of its beef products. Omaha
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA              3
PACKING CO.


Steaks advertises its products through national radio,
television, and freestanding print campaigns.
    Omaha Steaks has been featured in national newspa-
pers, magazines, television shows, and movies. It further
promotes its products via catalog and direct mail, a daily
blast e-mail, customer calls, and on social media plat-
forms, including Twitter, Instagram, Pinterest, and
Facebook. The direct mail advertising program operates
on a rotating basis, soliciting about 2 million customers
throughout the year.
    Omaha Steaks has seventy-five retail stores as well as
two airport kiosks. It sells its products online via Amazon
as well.
                            II
    In 1920, GOP’s predecessor was formed as an unin-
corporated company in Omaha, Nebraska called Greater
Omaha Packing Company. In 1956, the owners formed
Greater Omaha Packing Co., Inc. at the same location.
GOP sells boxed beef, which is beef fabricated from whole
carcasses. It is sold to wholesalers, such as hotels, res-
taurants, and food service institutions. GOP has continu-
ously sold beef to Omaha Steaks from 1966 to the present.
    On April 8, 2013, GOP filed an application to register
the mark “GREATER OMAHA PROVIDING THE
HIGHEST QUALITY BEEF” and design (Serial No.
85/897,951). The application was for the following goods
in International Class 29: “meat, including boxed beef
primal cuts.”
   The mark and design appear as follows:
4           OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                             PACKING CO.


                            III
     On November 15, 2013, Omaha Steaks filed an oppo-
sition against the GOP mark and design. Omaha Steaks
alleged that the Opposed Mark was likely to cause confu-
sion in consumers’ minds as to the source of the goods due
to its similarity to the registered Omaha Steaks marks.
    On September 30, 2017, the Board dismissed the op-
position. The Board concluded there was no likelihood of
confusion between GOP’s Opposed Mark and Omaha
Steaks’ marks. To arrive at that result, the Board found
inter alia that (1) Omaha Steaks did not show that its
marks are famous, (2) third-party use shows that the
word “Omaha” may indicate geographic location rather
than a single commercial source, and (3) the differences
between the GOP and Omaha Steaks marks outweigh
their similarities. Omaha Steaks appeals the Board’s
decision.
    We have jurisdiction under 28 U.S.C. § 1295(a)(4)(B).
                       DISCUSSION
    Omaha Steaks challenges three aspects of the Board’s
conclusion that there is no likelihood of confusion. First,
Omaha Steaks contends that the Board ignored evidence
of the fame of its marks under the fifth DuPont factor.
Second, Omaha Steaks argues that the Board relied on a
much broader range of goods lacking any similarity to
meat products when evaluating the sixth factor, which
examines the number and nature of third-party uses of
similar marks on “similar goods.” Third, Omaha Steaks
contends that the Board’s analysis of the similarity be-
tween the parties’ marks was flawed because it ignored
the word “BEEF” in GOP’s slogan, “PROVIDING THE
HIGHEST QUALITY BEEF.”
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA              5
PACKING CO.


                             I
     We review the Board’s legal conclusions de novo and
its factual findings for substantial evidence. In re Pacer
Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003).
    Pursuant to 15 U.S.C. § 1052(d), the U.S. Patent and
Trademark Office (“PTO”) has authority to refuse to
register an applicant’s mark where it is so similar to a
previously registered mark “as to be likely, when used on
or in connection with the goods of the applicant, to cause
confusion.” Whether a likelihood of confusion exists
between an applicant’s mark and a previously registered
mark is determined on a case-by-case basis, aided by
application of the thirteen DuPont factors. Citigroup Inc.
v. Capital City Bank Grp., Inc., 637 F.3d 1344, 1349 (Fed.
Cir. 2011); see also In re E. I. DuPont DeNemours & Co.,
476 F.2d 1357, 1361 (CCPA 1973) (reciting factors).
    “Each of the DuPont factors presents a question of
fact, findings with regard to which we test for substantial
evidence when called into question on appeal.” Bose Corp.
v. QSC Audio Prods., Inc., 293 F.3d 1367, 1370 (Fed. Cir.
2002). However, we review the Board’s overall determi-
nation of likelihood of confusion without deference. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
1366 (Fed. Cir. 2012).
                            II
    There are three parts to Omaha Steaks’ challenge to
the Board’s conclusion that its Omaha Steaks marks are
not famous. First, Omaha Steaks argues the admitted
evidence confirms the fame of its marks. Second, it con-
tends that the Board inappropriately excluded the Poret
survey, which evidenced consumer recognition of its
marks. Third, it asserts that the Board abused its discre-
tion by refusing to take judicial notice of its trademark
lawsuits, which demonstrate fame given that others are
imitating its marks. We address each argument in turn.
6           OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                             PACKING CO.


                             A
     Omaha Steaks argues that the Board improperly re-
jected its advertising expenditures and sales figures as
evidence of the fame of its marks. A mark “with extensive
public recognition and renown deserves and receives more
legal protection than an obscure or weak mark.” Kenner
Parker Toys Inc. v. Rose Art Indus., Inc., 963 F.2d 350,
353 (Fed. Cir. 1992). “Direct evidence of fame, for exam-
ple from widespread consumer polls, rarely appears in
contests over likelihood of confusion.” Bose, 293 F.3d at
1371. Instead, “the fame of a mark may be measured
indirectly, among other things, by the volume of sales and
advertising expenditures of the goods traveling under the
mark, and by the length of time those indicia of commer-
cial awareness have been evident.” Id.
    The Board acknowledged that Omaha Steaks spent
over $45 million in 2011 to advertise its beef products.
That number increased to over $50 million in 2012 and
2013. J.A. 37. Furthermore, the Board determined that
during the December holiday season Omaha Steaks
processes 100,000 orders per day. J.A. 26–27. The Board,
however, concluded that these “raw” figures lacked con-
text and therefore disregarded them. See J.A. 39.
    Omaha Steaks contends that contrary to the Board’s
analysis, it did not rest on these figures alone. Rather, it
introduced evidence to contextualize these figures, includ-
ing testimony about how Omaha Steaks promoted its
products to the public through catalogs, direct mailings, e-
mail marketing, customer calls, tradeshows, retail stores,
national television, radio, magazine and newspaper
campaigns, digital marketing, and social media.
    GOP does not respond directly to Omaha Steaks’ ar-
gument. Instead, it quotes large swaths of the Board’s
opinion. To the extent the quoted passages relate to
evidence of ad expenditures and sales, GOP cites to the
Board’s application of Bose. The Board concluded that
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA               7
PACKING CO.


while these sales figures “appear impressive,” Omaha
Steaks has not provided “any context for them, i.e., how
they translate into evidence of market share for Plaintiff’s
goods.” J.A. 39.
    The Board misreads Bose. The Board interpreted
Bose to require evidence of resulting “market share.” Our
holding was not so narrow. Market share is but one way
of contextualizing ad expenditures or sales figures. See
Bose, 293 F.3d at 1375 (“The Board suggested that one
form of such context would be the substantiality of the
sales or advertising figures for comparable types of prod-
ucts.”). Though Bose expressly approves of using market
share, it does not require it. See id. (discussing other
contextual evidence such as “general reputation” of
marked product).
   Bose simply concluded that in light of modern advertis-
ing, “raw numbers alone in today’s world may be mislead-
ing.”    Id. (emphasis added).       Bose explained that
understanding the type of advertising was key to contex-
tualizing the numbers to arrive at a proper understanding
of whether customers would recognize the mark. For
example, “a 30-second spot commercial shown during a
Super Bowl football game may cost a vast sum, but the
expenditure may have little if any impact on how the
public reacts to the commercial message.” Id. At the
other end of the spectrum, “handbills passed at little cost
to millions of consumers (for example, to New Yorkers
exiting subway stations) may amount to the kind of
advertising that is probative of consumer recognition of a
mark.” Id.
    Here, as the Board’s own factual findings confirm,
Omaha Steaks provided considerable contextual evidence
of the type of advertisements and promotions it uses to
gain sales. Specifically, Omaha Steaks senior vice presi-
dent of sales and marketing, Mr. Simon, testified that it
markets and sells its Omaha Steaks’ products via:
8            OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                              PACKING CO.


    •   catalog and direct mail, a daily blast email,
        customer calls, and on social media platforms,
        including Twitter, Instagram, Pinterest, and
        Facebook, where it has over 300,000 followers.
        J.A. 37 (citing J.A. 747 (Simon testimony)).
    •   a direct mail advertising program operating on
        a rotating basis with about 2 million customers
        that are solicited throughout the year. Id. (cit-
        ing J.A. 740 (Simon testimony)).
    •   national radio and television campaigns, free-
        standing print campaigns, and mention in na-
        tional magazines, including Time, Newsweek,
        Playboy, and PC Magazine, and newspapers,
        including USA Today, the Wall Street Journal,
        the New York Times, and the LA Times. Id.
        (citing J.A. 739–47, 801 (Simon testimony)).
    •   TV promotions of goods and services under the
        Omaha Steaks mark on the following TV
        shows: “Fox & Friends,” “Hell’s Kitchen,” “Ce-
        lebrity Apprentice,” and “The View.” Id. (citing
        J.A. 749–50 (Simon testimony)).
    •   features of Omaha Steaks products on “The
        Oprah Winfrey Show,” “The Ellen DeGeneres
        Show,” “Food Factory,” “Unwrapped,” and
        “Military Makeover.” Id. (citing J.A. 750–51,
        754 (Simon testimony)).
    •   unsolicited movie and TV allusions to Omaha
        Steaks. See, e.g., J.A. 38 (citing J.A. 774–76
        (Simon testimony) (discussing mentions in
        “Dodgeball,” “Flipper,” “The West Wing,”
        “Seinfeld,” “The George Lopez Show,” and
        “Dennis Miller Live”)).
    •   seventy-five stores in twenty-five states, in-
        cluding New York, Illinois, Florida, Georgia,
        Ohio, Kentucky, Missouri, Nebraska, Califor-
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA              9
PACKING CO.


       nia, Colorado, Nevada, Arizona, Texas, Penn-
       sylvania, and New Jersey, as well as two ki-
       osks at the Omaha airport. Id. (citing J.A. 739
       (Simon testimony)).
   •   appearances of Omaha Steaks’ kiosks in na-
       tionally released films, including “Up in the
       Air” and “About Schmidt.” Id. (citing J.A. 774
       (Simon testimony)).
    The Board’s fact-findings above confirm that due to
Omaha Steaks’ sales and marketing efforts, the consum-
ing public has been regularly exposed to Omaha Steaks’
marks on a nationwide scale. Based on this undisputed
record, the Board’s conclusion that Omaha Steaks did not
provide any context for its “raw” sales figures and ad
expenditures lacks substantial evidence.
    Relatedly, GOP also appears to argue that Omaha
Steaks’ evidence of fame should be disregarded because
the record does not include copies of the underlying adver-
tisements. The Board emphasized that Omaha Steaks
“provided no examples of its advertising content showing
how the OMAHA STEAKS marks are used across the
various referenced media, or any other evidence corrobo-
rating Plaintiff’s testimony.” J.A. 40. In the Board’s
view, such evidence was necessary to understand whether
the marks were “being displayed in a manner that leads
to widespread recognition.” Id.
    In Bose, such granular detail was necessary given the
nature of the marks. Specifically, there was a dispute as
to whether the Bose marks at issue—ACOUSTIC WAVE
and WAVE—were well-recognized as freestanding marks,
or depended on the fame of the already famous BOSE
“house mark” in the same ads. Bose, 293 F.3d at 1374–75.
In turn, that case demanded a careful examination of the
ads’ content. Id. at 1375 (“In this case, the sales and
advertising numbers for ACOUSTIC WAVE and WAVE
have to be seen both in the context of how the products
10          OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                             PACKING CO.


are presented in the advertising and sales material (here
with sufficient independence from the famous house
mark) and in the context of the continuous and extensive
critical consideration the marked products have en-
joyed.”).
    Here, the need to comb through the content of the ad
to parse out the level of recognition attributable to a
freestanding mark is not present. It is undisputed that
the tradename “Omaha Steaks” and related uses in its
marks are what is being promoted, not a separate brand
merely associated with its house mark. As counsel for
Omaha Steaks pointed out during oral argument—and
GOP did not dispute—every registered mark submitted
here includes the phrase “Omaha Steaks.”
     In light of the direct overlap between the company’s
name and its marks, it is undisputed that an Omaha
Steaks ad involved either its registered tradename,
“OMAHA STEAKS,” or one of its registered trademarks
displaying that name. Indeed, in several instances, the
Board’s own findings also expressly describe the use of an
Omaha Steaks trademark in promotional appearances on
national television and in major public venues. See, e.g.,
J.A. 37 (“Todd Simon has personally promoted Plaintiff’s
goods and services under the Omaha Steaks mark on the
following television shows: ‘Fox & Friends,’ ‘Hell’s Kitch-
en,’ ‘Celebrity Apprentice’ and ‘The View.’” (emphasis
added)); J.A. 38 (“Omaha Steaks’ goods and services are
promoted under the Omaha Steaks mark through conces-
sions, and some signage, at venues in Omaha, e.g., the
CenturyLink Center arena, TD Ameritrade Park, Ralston
arena, Storm Chasers Stadium and the Omaha Henry
Doorly Zoo.” (emphasis added)).
    In GOP’s view, the Board correctly reasoned that be-
cause it cannot discern which particular “Omaha Steaks
marks” are being advertised, it can end the inquiry as to
the fame of Omaha Steaks marks. This view ignores the
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA              11
PACKING CO.


larger body of evidence here—and the Board’s own factual
findings—that the tradename Omaha Steaks and related
marks were appearing in a broad spectrum of national
media, backed by millions of dollars of advertising, which
correlated with millions of dollars of sales. While the
precise content of certain advertisements may have
strengthened the record regarding fame, the Board’s
decision to essentially disregard Omaha Steaks’ testimo-
nial evidence of its advertising goes too far.
     Therefore, we agree with Omaha Steaks that the
Board’s decision to discount this evidence of fame was
legally flawed. In light of our holding in Bose, the Board
took an overly restrictive view of evidence related to
Omaha Steaks’ sales figures, advertising expenditures,
and related evidence of the relevant public’s exposure to
its branded meat products bearing on the relative fame of
the mark. Accordingly, we vacate and remand to allow
the Board to conduct a proper analysis of this factor.
                             B
    Omaha Steaks next contends that a survey conducted
by its expert, Mr. Hal Poret, further evidenced fame and
was improperly disregarded. The Board found the ex-
pert’s survey questions were self-servingly directed to a
narrow universe of respondents, exclusively comprised of
Omaha Steaks’ customer base. See J.A. 21. In Omaha
Steaks’ view, even if the survey does not target what the
Board considers to be the optimal universe, the results
are so compelling that it still supports the factual finding
that a majority of consumers recognize the Omaha Steaks
marks and associate them with a single source of meat.
    Such evidentiary rulings are reviewed for abuse of
discretion. Crash Dummy Movie, LLC v. Mattel, Inc., 601
F.3d 1387, 1390–91 (Fed. Cir. 2010) (reversal appropriate
only if evidentiary ruling was: (1) “clearly unreasonable,
arbitrary, or fanciful”; (2) “based on an erroneous conclu-
sion[] of law”; (3) premised on “clearly erroneous findings
12          OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                             PACKING CO.


of fact”; or (4) unsupported by the record, which “contains
no evidence on which the Board could rationally base its
decision”). We see no abuse of discretion here.
    There is no dispute that the relevant goods for the
marks at issue are identified broadly as “meat” and “beef.”
J.A. 21–22. The Board concluded that “the relevant
public would comprise ordinary consumers who eat meat
and beef, not just Plaintiff’s current customer base.” J.A.
22. Despite this broad relevant public, Mr. Poret deliber-
ately excluded a large segment of these consumers.
Omaha Steaks does not challenge the Board’s factual
finding, based on Mr. Poret’s deposition testimony, that
participants “who responded that they purchased their
meat through an online grocery store, a big chain or local
grocery store or a supermarket or smaller market were
excluded.” J.A. 21 n.20.
    As a result, the Board concluded that by intentionally
eliminating such “a large segment of meat eaters because
they purchase their meats from grocery stores and mar-
kets, and not specialty kiosks and websites” like Omaha
Steaks’ customers, Mr. Poret “fatally narrow[ed]” the
survey universe and skewed the results. J.A. 22. We
agree. It was not an abuse of discretion to conclude such
unreliable evidence lacks probative value. 1



     1  Omaha Steaks also argues that the Tenth Circuit
refused to reject survey results under similar circum-
stances in Brunswick Corp. v. Spinit Reel Co., 832 F.2d
513, 523 n.6 (10th Cir. 1987). However, Brunswick is
distinguishable. There, the inclusive survey covered
“persons over 14 years who have fished in fresh water in
the last twelve months.” Id. The Tenth Circuit concluded
the trial court did not abuse its discretion by admitting
the survey, especially since there was “no evidence to
show that such a universe would not be a fair sample of
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA              13
PACKING CO.


                             C
    Omaha Steaks next argues that the Board improperly
refused to take judicial notice of its various trademark
lawsuits. In Omaha Steaks’ view, the need to stop imita-
tion evidences fame. To that end, Omaha Steaks provided
the Board with case captions to show it “filed numerous
lawsuits against perceived infringers.” J.A. 22. The
Board, however, concluded that Omaha Steaks failed to
supply the necessary information to support its request
for judicial notice. Namely, Omaha Steaks did not pro-
vide “any material, e.g., the pleadings, to substantiate its
claim” regarding the other lawsuits. J.A. 23.
     Under Federal Rule of Evidence 201(b)(2), a tribunal
“may judicially notice a fact that is not subject to reason-
able dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasona-
bly be questioned.” A tribunal “must take judicial notice
if a party requests it” and “the court is supplied with the
necessary information.” Fed. R. Evid. 201(c)(2).
    On appeal, GOP does not meaningfully dispute the
factual substance of Omaha Steaks’ request—i.e., it filed
around twenty lawsuits “against perceived infringers.”
Nor does it dispute that this fact can be readily deter-
mined from the dockets of those actions, which are public-
ly accessible via PACER. And it does not contest that the
only information the Board needed to access these records
was the caption Omaha Steaks provided for each case.
Finally, GOP does not reasonably question the accuracy of
these records.




those who are likely to purchase spincast reels.” Id. By
contrast, here the undisputed facts confirm the Poret
survey did not come close to providing a reliable sample of
consumers likely to purchase meat.
14          OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                             PACKING CO.


    GOP’s only argument on appeal is that Omaha Steaks
did not affirmatively provide the Board with copies of the
actual reported decisions and related documents in the
dockets to prove it filed these suits. GOP cites no authori-
ty, however, that a party must provide an underlying copy
of a publicly available court record where it has provided
the citation necessary to allow the court to access that
record.
    To the extent Omaha Steaks was asking the Board to
take judicial notice of the mere fact that it had filed
numerous infringement actions, providing the relevant
case captions, including the case names and docket num-
bers, was likely sufficient. See United States v. Jones, 29
F.3d 1549, 1553 (11th Cir. 1994) (“[A] court may take
judicial notice of a document filed in another court ‘not for
the truth of the matters asserted in the other litigation,
but rather to establish the fact of such litigation and
related filings.’” (quoting Liberty Mut. Ins. Co. v. Rotches
Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992))).
But, the mere fact that lawsuits were filed is not reasona-
bly probative of the fame inquiry, which is focused on
whether the mark has achieved “extensive public recogni-
tion and renown,” Coach Servs., 668 F.3d at 1367, not on
enforcement efforts. Any error in refusing to take judicial
notice of the case filings was thus harmless. 2
    To the extent Omaha Steaks was asking the Board to
take judicial notice of the contents of the complaints filed
in those cases, the fact that the cases related to the mark
at issue here, or that others were actively infringing


     2  Indeed, given the limited significance of these
other lawsuits to the fame inquiry, counsel for Omaha
Steaks conceded at oral argument that any error in the
Board’s decision not to take judicial notice was harmless.
Oral     Arg.     at     33:29–56,      No.     2018-1152,
http://www.cafc.uscourts.gov/oral-argument-recordings.
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA             15
PACKING CO.


Omaha Steaks’ asserted mark, we find no abuse of discre-
tion in the Board’s denial of that request. The Board is
not required to scour, not just the dockets, but the multi-
ple pleadings referenced in those dockets to determine the
substance of the litigations referenced. Under the cir-
cumstances of this case, we cannot say the Board abused
its discretion in failing to take judicial notice.
                            III
    Omaha Steaks next challenges the Board’s analysis of
the sixth DuPont factor regarding third-party usage. This
factor considers “[t]he number and nature of similar
marks in use on similar goods.” DuPont, 476 F.2d at
1361. The purpose of introducing evidence of third-party
use is “to show that customers have become so condi-
tioned by a plethora of such similar marks that customers
‘have been educated to distinguish between different
[such] marks on the bases of minute distinctions.’” Palm
Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee en 1772, 396 F.3d 1369, 1374 (Fed. Cir. 2005)
(quoting Veuve Clicquot Ponsardin Maison Fondee en
1772 v. Palm Bay Imps., Inc., Opp’n No. 115,438, 2003
WL 21953664, at *10 (TTAB Aug. 4, 2003)). Third-party
use is “relevant to show that a mark is relatively weak
and entitled to only a narrow scope of protection.” Id. at
1373.
    In Omaha Steaks’ view, the Board improperly broad-
ened its analysis to encompass third-party marks on
clearly dissimilar goods. The Board determined that the
“goods” in GOP’s application (“meat, including boxed beef
primal cuts”) were legally identical to those in Omaha
Steaks’ pleaded registration (“meat”). J.A. 34. Nonethe-
less, the Board considered a variety of services and prod-
ucts that include the word “Omaha,” regardless of
whether they involve meat. The Board then concluded
that while this evidence is “not overwhelming, it is suffi-
cient” to find that the designation OMAHA “may be
16          OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                             PACKING CO.


perceived as an indication of the geographic location of
the producer of the goods or the geographic origin of the
goods themselves.” J.A. 45. Based on this finding, the
Board determined that “OMAHA” is weak as an indicator
of commercial source. Thus, marks relying in whole or in
part on “OMAHA”—such as the Omaha Steaks marks—
are only entitled to narrow protection. Id.
    The Board’s analysis was flawed. As we underscored
in Century 21, the “relevant du Pont inquiry is ‘[t]he
number and nature of similar marks in use on similar
goods.’” Century 21 Real Estate Corp. v. Century Life of
Am., 970 F.2d 874, 877 (Fed. Cir. 1992) (quoting Weiss
Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 1548
(Fed. Cir. 1990)).
    In Century 21, the parties’ marks were both used in
relation to insurance services. However, the Board found
that since “Century” was used in a wide variety of trade
names and marks, “the public would not regard
CENTURY as such an unusual term in a trade name or
mark.” Id. Therefore, they would never “expect all com-
panies with CENTURY in their name to be related, or all
products or services with CENTURY in their marks to
emanate from a single source.” Id.
    Reversing the Board, we emphasized that the control-
ling inquiry is the extent of third-party marks in use on
“similar” goods or services. Id. “It is less relevant that
‘Century’ is used on unrelated goods or services such as
‘Century Dental Centers’ or ‘Century Seafoods.’” Id. at
877–78. As a result, we held that the “paucity” of marks
containing “Century” in “businesses similar to insurance”
suggests that “CENTURY 21 is indeed a unique mark for
insurance services.” Id. at 878.
    Here, the Board cited to a list of third-party business-
es that have “Omaha” in their name. In so doing, the
Board relied on a diverse range of third-party products,
such as “popcorn,” “wine,” “oriental foods,” and “alcoholic
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA              17
PACKING CO.


beverages.” J.A. 42. But these goods bear no relationship
to meat or meat-based products. Accordingly, such goods
are not “similar” to meat products.
    Resisting this conclusion, GOP insisted at oral argu-
ment that popcorn is similar to meat. Oral Arg. at 21:53–
22:18. In GOP’s view, because most of its third-party use
evidence can be categorized as “food products” or products
sold in a “grocery store,” they are relevant under the sixth
DuPont factor, which requires only similar—not identi-
cal—goods. Id. at 21:31–52, 27:31–44. GOP’s position is
unpersuasive for two reasons.
    First, GOP’s position lacks support in the record. For
example, the Board made no analysis or factual findings
explaining how popcorn and meat are somehow similar
products. Even if the Board had made such a finding,
there is insufficient evidence to support it. There is
simply no meaningful evidence to back up GOP’s view
that these two distinct types of food are related. The
same evidentiary gap exists for explaining why goods and
services for oriental foods, alcoholic beverages, café food,
or grocery delivery services are “similar” to meat. See J.A.
42. GOP’s attempt during oral argument to label these
uses as food or grocery store products does not solve this
problem. GOP invites us to assume that simply because
these various uses can be bucketed into such broad cate-
gories, they are similar to meat for the relevant public.
We decline to do so. In sum, GOP’s arguments only
highlight the Board’s flawed analysis here, which failed to
focus on goods shown to be similar to meat.
    Second, our decision in National Cable Television
Ass’n v. American Cinema Editors, Inc., 937 F.2d 1572
(Fed. Cir. 1991), counsels against GOP’s overbroad view of
what qualifies as a “similar good.” In National Cable
Television, we made clear that the present analysis only
involves goods like those being offered by the parties to
the “relevant public,” while third-party use outside of that
18            OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                               PACKING CO.


relevant market is meaningless. Id. at 1579–80. We
emphasized that the “real world segment of the public is
limited to the market or universe necessary to circum-
scribe purchasers or users of products or services like
those being offered by the parties” under a common mark.
Id. at 1579. Such limits are important to the rationale
underlying this factor. “Only if other offerings under the
‘common’ mark are also directed to that relevant public is
it reasonable to infer that they may have become condi-
tioned to draw fine lines between sources of ‘related’ goods
or services.” Id. To punctuate this point, we explained:
      To take an extreme example, ACE for canned,
      large peas could not escape likelihood of confusion
      with a prior use of ACE for canned, small peas be-
      cause ACE is concurrently used by unrelated third
      parties on aircraft, clothing, computer services,
      hardware or even bread, bananas, milk and
      canned carrots. Properly defined, the relevant
      public in the example need be defined no broader
      than purchasers of canned peas, and the third
      party ACE marks outside the segment become es-
      sentially irrelevant.
Id.
    Accordingly, we agreed with the Board that nothing in
the record showed any third-party marks had narrowed
the scope of the opposer’s mark for the relevant public.
See id. at 1580 (concluding that no third-party marks and
uses were as closely related as “the virtually identical
uses of the parties are to each other”).
    Here, the Board found the parties’ respective marks
were both used on “meat” products. Indeed, earlier in its
analysis, the Board concluded that the parties’ goods were
identical. J.A. 34. The Board also found that the relevant
public was no broader than “ordinary consumers who eat
meat and beef.” J.A. 22.
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA             19
PACKING CO.


    In turn, GOP’s mark on meat products cannot escape
a likelihood of confusion with Omaha Steaks’ prior use on
meat products in the relevant market for meat purely
because other “Omaha” marks are being used by third
parties on popcorn, alcoholic beverages, or other food
products. Independent of these third-party uses on other
goods, there may still be confusion between Omaha
Steaks’ marks and GOP’s new mark for consumers pur-
chasing meat. 3
    When the marks featuring “Omaha” on unrelated
goods are properly understood as having no real probative
value for the analysis at hand, the evidentiary universe is
much smaller. GOP’s remaining relevant evidence largely
consists of third-party meat products from meat pro-
cessing or packaging companies, such as B.I.G. Meats
Omaha, Omaha Beef Company, and Omaha Meat Proces-
sors. 4 Because the Board based its narrow decision on



   3     The remaining case law cited in GOP’s briefing
does not unsettle this conclusion. Indeed, given the
nearly identical overlap between the parties’ products and
third-party products in those cases, the similarity of the
goods was not at issue.         See, e.g., Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. KGAA v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 1373 (Fed. Cir.
2015) (evaluating marks for use on “clothing” with third-
party use of similar marks on clothing); Juice Generation,
Inc. v. GS Enters. LLC, 794 F.3d 1334, 1337 n.1, 1338–40
(Fed. Cir. 2015) (evaluating marks for “restaurant ser-
vices” and “juice bar services” with third-party use of
similar marks in food service industry).
    4    GOP argued that the 118 registrations discussed
in the Board’s fact-findings were not relevant to third-
party usage. Oral Arg. at 19:26–45, 20:17–39. To the
extent the Board’s opinion could be read to incorporate
these registrations into its analysis of similar goods, the
20            OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                               PACKING CO.


irrelevant evidence of unrelated goods, its analysis under
the sixth factor was legally flawed. We therefore vacate
its finding and instruct the Board to reweigh the limited,
relevant evidence of third-party use.
                             IV
    Turning to the last factor at issue, Omaha Steaks
mounts two main arguments. First, it argues that the
Board failed to consider the challenged mark in its entire-
ty when evaluating the similarity of the parties’ marks.
Second, it contends the Board’s conclusion under this
factor rested heavily on the now-vacated evidence of third-
party use regarding the geographic term “Omaha.”
                             A
     Omaha Steaks’ first argument is that because the
Board omitted the word “BEEF” from its reproduction of
the slogan in the GOP mark, it failed to consider the mark
in its entirety.
     The slogan in the Opposed Mark states in full:
“PROVIDING THE HIGHEST QUALITY BEEF.” During
its discussion of the marks, however, the Board stated:
     Defendant’s mark is dominated by the words
     GREATER OMAHA; they are the first words in
     the mark, are visually larger than the laudatory
     slogan, “PROVIDING THE HIGHEST QUALITY,”
     and are the words that would be used to call for
     the goods.
J.A. 47–48.
    Omaha Steaks’ argument carries little force. The ab-
sence of “BEEF” from a single sentence in the Board’s
order appears to be nothing more than a typographical


vast majority of the third-party trademarks are also
irrelevant as they, too, are unrelated to meat.
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA              21
PACKING CO.


error. Omaha Steaks makes no response to the fact that
on seven separate occasions, the Board’s opinion correctly
referred to the Opposed Mark’s slogan in its entirety. In
three instances, the Board recited the complete five-word
slogan with the word “BEEF” textually. J.A. 2, ll. 2–3;
J.A. 2 n.2. In four other instances, the Board reproduced
the full mark graphically, including the “BEEF” slogan.
J.A. 2, l. 4; J.A. 28, l. 11; J.A. 46, l. 13; J.A. 52, l. 6.
     Ignoring these accurate recitations, Omaha Steaks in-
sists this particular passage of the Board’s opinion con-
firms it failed to consider the marks in their entirety.
According to Omaha Steaks, the Board improperly fo-
cused on the more prominent words appearing in both
marks—e.g., “Omaha Steaks” and “Greater Omaha”—
while conspicuously leaving out the slogan and its refer-
ence to beef. See Appellant’s Reply Br. 2 (discussing J.A.
49).
    Omaha Steaks is correct that the first DuPont factor
examines the “similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connotation and
commercial impression.” DuPont, 476 F.2d at 1361. “But
‘in articulating reasons for reaching a conclusion on the
issue of confusion, there is nothing improper in stating
that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the
ultimate conclusion rests on consideration of the marks in
their entireties.’” In re Detroit Athletic Co., 903 F.3d
1297, 1305 (Fed. Cir. 2018) (quoting In re Nat’l Data
Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985)).
    As such, Omaha Steaks takes the Board’s statements
out of context. In the cited portion of its analysis, the
Board was examining the dominant features of the marks.
For the Opposed Mark, the Board reasoned that the
dominant words were “GREATER OMAHA” because they
are “the first words in the mark” and are “visually larger”
22          OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA
                                             PACKING CO.


than the slogan. J.A. 47. As for the Omaha Steaks mark,
it found “OMAHA STEAKS” was the dominant feature.
    Contrary to Omaha Steaks’ view, the Board then con-
sidered the “additional matter in the two marks, i.e., the
slogan and steer head design in Defendant’s mark and the
generic term STEAKS in Plaintiffs mark.” J.A. 48–49.
The Board concluded the slogan and other matter “while
less dominant, also contribute to the differences in ap-
pearance and sound” between the marks. J.A. 49. While
Omaha Steaks may not like that conclusion, we cannot
say that the Board ignored the slogan in its analysis.
    Omaha Steaks’ reliance on Juice Generation, 794 F.3d
at 1341, is misplaced. Rather than giving “no significance
to the term” and thus failing to consider the mark in its
entirety, see id., here the Board adequately assessed the
slogan. Indeed, it found that the distinct slogan was one
of the differences between the marks overall.
   In sum, Omaha Steaks has not shown any error in the
Board’s analysis here.
                            B
    Omaha Steaks’ second argument is that the Board’s
analysis of this factor relied on its findings regarding
third-party use. As these findings have now been vacat-
ed, Omaha Steaks contends we must also vacate its
conclusions under this factor for further analysis. We
agree.
    While weighing the similarities and differences be-
tween the marks, the Board decided to discount one of the
main similarities in the marks—the use of the word
“Omaha”—in large part because that word was in use by
third parties as a geographically descriptive term for the
city of Omaha. It reasoned that when “the geographically
descriptive term ‘Omaha’ is viewed with the evidence of
third-party uses of OMAHA trademarks and trade names,
these differences outweigh the similarities, resulting in
OMAHA STEAKS INTERNATIONAL v. GREATER OMAHA            23
PACKING CO.


different overall commercial impressions.” J.A. 49 (em-
phasis added). Based on this third-party use, the Board
concluded this DuPont factor favors finding no likelihood
of confusion.
    As discussed above, however, the Board’s findings re-
garding third-party use improperly relied on marks found
on dissimilar goods and services not directed to the rele-
vant public. Those findings have now been vacated.
   Accordingly, we also vacate the Board’s conclusion
under this first factor and remand for further analysis.
                      CONCLUSION
    For the foregoing reasons, we vacate the Board’s deci-
sion that there is no likelihood of confusion between
Omaha Steaks’ and GOP’s marks, and we remand for
further proceedings consistent with this opinion.
            VACATED AND REMANDED
                         COSTS
   The parties shall bear their own costs.
