The TTABlog®

TTABlog Test: Are T-Shirts Related to Entertainment Services Under Section 2(d)?

2026-04-27T06:43:55.518-04:00

The USPTO refused to register the mark FAMOUS FRIENDS for “shirts; t-shirts," concluding that confusion is likely with the registered mark FAMOUS FRIEND for “entertainment services by a musical artist and producer, namely, musical composition for others and production of musical sound recordings." Despite applicant's argument that the addition of the plural “S” materially changes how consumers perceive its mark, the Board unsurprisingly found the marks to be confusingly similar. But what about the goods and services? Is clothing related to everything? In re Runnin’ Behind, Inc., Serial No. 97603035 (April 23, 2026) [not precedential] (Opinion by Judge Wendy B. Cohen).

Specimen issues: The examining attorney deemed the use of the mark to be merely ornamental in light of its size and placement on the t-shirt, and thus unregistrable. The Board pointed out that "[a]lthough '[i]t may have once been the practice in the clothing industry to limit logos to small sizes in discrete areas rather than to have them ‘emblazoned’ across a garment ... such is no longer the industry practice, or at least no longer the only one.'"

Applicant contended that FAMOUS FRIENDS is recognized as an indicator of secondary source for the goods because of the "extensive use of FAMOUS FRIENDS in connection with Chris Young’s song, album, tour, and fan club services, rendering it easily recognizable by consumers as Applicant’s distinctive brand extendable to souvenir merchandise (bearing his image).” The Board found the evidence convincing that the mark serves as an indicator of secondary source, and it reversed this refusal.

Section 2(d) Refusal: The Board found the difference between the singular form of the cited mark and the plural form of applicant's mark to be "not meaningful." "Any consumers who do notice the slight difference in the marks may consider Applicant’s mark a variation of the Cited Mark covering companion product lines."

Regarding connotation and commercial impression, applicant argued that its mark is associated with Chris Young, "but that even if the consumer is unaware of 'the verbal irony of Chris Young’s use of ‘Famous Friends’ for non-famous hometown heroes, the marks … create distinct commercial impression on their faces.'" The Board was unmoved:

We are constrained to base our analysis on the applied-for mark and identification of goods. While Applicant has submitted evidence of its use of FAMOUS FRIENDS in connection with Chris Young and his song, we cannot consider alleged marketplace realities not reflected in the identifications of goods and services.

The Board found that '[g]iven the near identical similarity of the marks, this first DuPont factor weighs strongly in favor of a finding of likelihood of confusion."

As to the goods and services, the examining attorney relied on twenty use-based third-party registrations covering t-shirts and entertainment services, including the marks AUSTIN CITY LIMITS, KELLY CLARKSON, and BARRY MANILOW, as well as on a number of internet uses, including RED HOT CHILI PEPPERS, PRINCE, and GEORGE CLINTON.

Applicant, in turn, submitted twenty-two pairs of registrations in which the identical mark was registered by different entities for songwriting or music production and for shirts and t-shirts. The Board was not impressed: "the fact that different third-parties may own these registrations does not negate those examples of common ownership submitted by the Examining Attorney and what that may suggest as to consumer perception in the marketplace."

The Board found that the second DuPont factor supported the refusal.

Noting that none of the DuPont factors favored applicant, the Board affirmed the Section 2(d) refusal.

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TTABlogger comment: Chris Young is not related to Neil Young, says Claude.

Text Copyright John L. Welch 2026.

TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?

2026-04-24T06:25:45.221-04:00

Here are three recent TTAB decisions in Section 2(d) appeals. Remembering that a TTAB Judge (now retired) once said that one can predict the outcome of a Section 2(d) appeal 95% of the time just by considering the marks and the goods/services, how do you think these came out? [Answer in first comment].

In re USI Insurance Services LLC, Serial No. 98585708 (April 21, 2026) [not precedential] (Opinion by Judge Christen M. English). [Section 2(d) refusal of the mark shown below, for "insurance services, namely, the brokerage, underwriting, issuance and administration of commercial property and casualty, personal property and casualty, accident, and health insurance tailored to the needs; of insureds; insurance agency services; wholesale brokerage of various types of insurance tailored to the needs of insureds” [SPECIALTY disclaimed] in view of the registered mark IGP for "administration and underwriting of life insurance, accident and health insurance, annuity contracts, and pensions."]

In re Nekki Limited, Serial No. 98767008 (April 22, 2026) [not precedential] (Opinion by Judge Thomas W. Wellington) [Section 2(d) refusal of the mark SPINE – THIS IS GUN FU for, inter alia, "downloadable computer games software," "home video game machines," "hand-held computer games equipment, namely game consoles," and "providing online, interactive multi-player computer games" [GUN FU voluntarily disclaimed] in view of the registered mark GUN FU for "Downloadable computer game software via a global computer network and wireless devices."]

In re Heretic Beauty Inc., Serial No. 98831998 (April 22, 2026) [not precedential] (Opinion by Judge George C. Pologeorgis). [Section 2(d) refusal of the mark EAU DE MACABRE for “fragrances and perfumery” in view of the registered mark shown below for various clothing items and the registered standard character mark MACABRE for candles.]

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TTABlogger comment: How did you do? See any WYHA?s ?

Text Copyright John L. Welch 2026.

TTABlog Test: Is "READY, FETCH, GO!" for Dog Toys Confusable with "READY SET FETCH" for Balls and Flying Discs?

2026-04-23T06:32:19.131-04:00

The USPTO refused to register the proposed mark READY, FETCH, GO! for "dog toys," concluding that confusion is likely with the registered mark READY SET FETCH for "flying discs; flying disc throwing apparatus; rubber balls; tennis balls; tennis ball throwing apparatus." Applicant NAAJ LLC argued that its mark conveys "a spirited, call-to action voice" that "signals energy and enthusiasm," whereas the cited mark READY SET FETCH "introduces a more restrained, perhaps even instructive tone." I think you know how this appeal came out. In re NAAJ LLC, Serial No. 98577734 (April 21, 2026) [not precedential] (Opinion by Judge Angela Lykos).

The Goods: The evidence submitted by Examining Attorney Robert Ratcliffe established that rubber balls and flying discs are types of dog toys. NAAJ’s goods are identified as “dog toys,” and the cited registration identifies, inter alia, “rubber balls” and “flying discs.” Thus, the involved goods are identical in-part. Third-party registration and website evidence also demonstrated the relatedness of the goods.

Applicant’s and Registrant’s “dog toys,” “rubber balls,” and “flying discs” presumptively move in all normal trade channels and to consumers that purchase such goods.

The Marks: NAAJ further argued that the exclamation point and the inclusion of the word GO! at the end of its mark “gives the mark a joyful, commanding presence closely aligned with the action of play and engagement between a dog and its owner” while the cited mark “reads as a single command or product title, not a playful interaction.” NAAJ was barking up the wrong tree.

Both marks are short, three-word phrases that evoke the familiar idiom “Ready, set, go,” making them similar in structure and cadence. Each mark begins with READY and incorporates the word FETCH. While FETCH appears in a different position in each mark, that distinction does not significantly alter the marks’ appearance or sound. Nor does the substitution of GET [sic] for GO appreciably change the marks in sight or sound.

The Board found that the marks are similar in sound, appearance, meaning and commercial impression.

As to connotation and commercial impression, the Board observed that both marks are a clever play on the expression “Ready, set, go.” "The shared term FETCH projects the same connotation by suggesting that a pet dog is ready to play a game of fetch with a dog toy, stick, ball or flying disc." The minor differences in punctuation "do not materially distinguish the marks in either sound, appearance, connotation or commercial impression."

Other Factors: NAAJ's evidence of six third-party registrations for marks based on the same theme fell short both in number and probative value. Only four covered similar goods and those did not include the word "fetch." The Board deemed the sixth DuPont factor to be neutral. The lack of evidence of actual confusion was meaningless because there was no proof that NAAJ's mark had been put into use.

Conclusion: Balancing the relevant DuPont factors, the Board found confusion likely and it affirmed the refusal.

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TTABlogger comment: My old friend, David Perlsack, had a dog that would chase his own tail when David called, "GO FETCH YOURSELF."

Text Copyright John L. Welch 2026.

TTABlog Test: Are Perfume and Clothing Related Under Section 2(d)?

2026-04-22T06:27:12.006-04:00

The USPTO refused to register the mark shown below for "Perfumery; Bleaching preparations for laundry use; Cleaning, polishing, scouring and abrasive preparations; Essential oils; Non-medicated cosmetics; Non-medicated dentifrices; Non-medicated toiletry preparations," concluding that confusion is likely with the registered mark ASSAF, in standard characters, for "Clothing, namely, hats, caps, and beanies." Applicant argued that its goods have a different nature and purpose than hats and caps, that its goods are expensive and its customers sophisticated and careful, and that its mark focuses on horses, which are used in the branding for exclusive and expensive goods. I suspect you know how this appeal came out. In re Assef Trading Est., Serial No. 98642858 (April 20, 2026) [not precedential] (Opinion by Judge Mark A. Thurmon).

The Board found the marks to be similar in appearance. It acknowledged that the shield design is distinctive and is likely to be noticed and remembered by consumers, but the only English word in applicant's mark is identical to the cited mark. "This type of similarity can lead to consumer confusion, even when one of the marks contains a design element."

The non-Latin script in Applicant’s mark transliterates to ASSAF, so consumers who can read the English word ASSAF and the Arabic script will not find that this script distinguishes the marks, but instead will see the literal elements of the mark as ASSAF ASSAF. For those consumers who cannot read Arabic, the Arabic script will likely be viewed as another design element of the mark, one that does not provide much distinction from the cited ASSAF mark.

Most importantly, according to the Board, "the marks are identical in sound for consumers who do not attempt to pronounce the Arabic script in Applicant’s mark." The word ASSAF has no established meaning in English, but because the same word is used in both marks, the marks will share the same meaning." The additional elements in applicantnd sole English literal element, of both marks is the word ASSAF, so the dominant or primary commercial impression created by the two marks will be the same."

The Board noted that if horse designs are in common use for similar goods, as applicant claimed, then the horse element in applicant's mark is less distinctive and less likely to be relied upon by consumers than the other elements of the mark.

Turning to the goods, Examining Attorney Philip Liu submitted evidence that marks used on clothing, including caps and hats, are also often used with perfumes. He also provided thirteen third-party, use-based registrations that identify both perfume (as identified in the Application) and hats or caps (as identified in the cited Registration).

Applicant argues that its goods have a different nature and purpose than hats and caps. While this is surely true—perfumes are not head coverings, as hats and caps are—it is largely irrelevant. Differences of this type might be important for some goods, but as we noted above, the key question here is whether the evidence shows that these different goods are related in the minds of consumers.

The Board found that the goods are related, and so the second DuPont factor supported the refusal.

The third-party use evidence demonstrated that the channels of trade overlap. Applicant's argument that its customers are sophisticated and careful ignored the lack of any limitation in the application as to price or type of customer. "With no limits on the goods, we find that the perfume goods identified in the Application may include products at any price point. Similarly, the hats and caps identified in the cited Registration may include such goods at any price point." Moreover, there was no evidence to support applicant's assertion regarding purchaser care.

Finally, we are required to base our decision “on the least sophisticated potential purchasers.” Stone Lion Capital Partners, 746 F.3d at 1325. We find that the “least sophisticated potential purchasers” of perfumes, hats and caps, which are ordinary consumer goods, are likely to exercise ordinary care in making purchasing decisions, which does not alter the likelihood of confusion. The fourth DuPont factor is neutral.

The Board observed that only the first three DuPont factors were probative in this appeal, and all three supported the Section 2(d) refusal.

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TTABlogger comment: Clothing, jewelry, perfume - all related.

Text Copyright John L. Welch 2026.

TTABlog Test: Which of These Three Recent Section 2(d) Oppositions Was/Were Dismissed?

2026-04-21T06:43:00.004-04:00

Here are three recent TTAB decisions in Section 2(d) oppositions. At least one of the oppositons was dismissed and the other(s) sustained. Remembering that a TTAB Judge (now retired) once said to me that one can predict the outcome of a Section 2(d) claim 95% of the time (at least in ex parte appeals) just by considering the marks and the goods/services, how do you think these came out? [Answer in first comment].

Chatham Imports, Inc. v. Farmer’s Creed Corp., Opposition No. 91283157 (March 30, 2026) [not precedential] (Opinion by Judge Martha B. Allard). [Section 2(d) opposition to registration of the mark FARMER'S CREED for "Alcoholic beverages, except beer," in view of the registered mark FARMER’S for “Alcoholic beverages, namely, distilled spirits."]

Allied Lomar, Inc. v. Talnua, Inc, Opposition No. 91284670 (April 13, 2026) [not precedential] (Opinion by Judge Jennifer L. Elgin) [Section 2(d) refusal to register of the mark OLDE SAINT’S KEEP for "distilled spirits," in view of the registered mark OLDE ST. NICK “alcoholic beverages, except beers.”]

Sun Garden Packing Co. v. Da Napoli Foods LLC, Opposition No. 91284802 (April 17, 2026) [not precedential] (Opinion by Judge Thomas W. Wellington). [Section 2(d) opposition to registration of the mark shown below left, for "Pasta; Sauces; Packaged meals consisting primarily of pasta or rice," in view of the registered mark shown below right, for "canned tomatoes, canned tomato puree, and canned tomato paste."

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TTABlogger comment: How did you do?

Text Copyright John L. Welch 2026.

Supreme Court Denies Petition for Certiorari in RAPUNZEL Consumer Standing Case

2026-04-20T09:52:00.010-04:00

In an order issued this morning, the Supreme Court denied Professor Rebecca Curtin's petition for a writ of certiorari seeking review of the Federal Circuit's ruling in Curtin v. United Trademark Holdings, Inc., 2025 USPQ2d 784 (Fed. Cir. 2025) [precedential]. [TTABlogged here]. The CAFC had affirmed the Board's holding that "only commercial actors affected by the mark’s registration fall within the zone of interests to oppose the registration as generic, descriptive, or [failing to function as a trademark]," and it upheld the Board's dismissal of mere consumer Curtin's opposition to registration of the mark RAPUNZEL for dolls and toy figures on the ground of lack of statutory standing. [Petition for certiorari here: Curtin v. United Trademark Holdings, Inc., No. 25-435 (October 3, 2025)].

Professor Curtin based her petition on the argument that the Lexmark test for statutory standing did not apply to administrative proceedings, and she pointed to a conflict in the circuit courts of appeal.

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TTABlogger comment: Too bad. Now I think the USPTO should return the application for further examination on the issues of genericness, mere descriptiveness, and failure to function.

Text Copyright John L. Welch 2026.

TTAB Upholds Surname Refusal of GOLIA for Candy

2026-04-20T06:23:00.006-04:00

The TTAB affirmed a Section 2(e)(4) refusal of the proposed mark GOLIA for "non-medicated candy confectioneries and non-medicated candies," finding the term to be primarily merely a surname. Applicant Michael J. Golia argued that "the surname GOLIA is exceedingly rare and virtually unknown to the American public" and he pointed to the Italian translation of GOLIATH, purportedly establishing a readily understood non-surname meaning. The Board (cast in the role of David?) was unmoved. [BTW: GOLIA is the brand name of a popular Italian candy (depicted below) having no apparent connection with this applicant - ed.]. In re Michael J. Golia, Serial No. 98516586 (April 17, 2026) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

Examining Attorney Kennina Ip contended that Applicant Michael J. Golia's own use of the mark as a surname is probative evidence of the significance of the term. The Board agreed. It further observed that even if the name is relatively rare, the purchasing public has been exposed to GOLIA as a surname through media references to individuals with that name. "Section 2(e)(4) makes no distinction between rare and commonplace surnames ... and even a rare surname is unregistrable if its primary significance to purchasers is a surname."

The evidence included more than two dozen media mentions and references to individuals with the surname Golia, including jazz musician Vinny Golia and New York Mets trainer Joe Golia. Applicant faulted the Examining Attorney for not presenting evidence of a “nationally famous figure" with the surname GOLIA, but the Board pointed out that there is no such evidentiary requirement. "Although the total number of persons in the United States with the surname Golia may be somewhat low, the examples of people in law, the arts, business, and other fields having the surname Golia show meaningful and fairly broad public exposure to GOLIA as a surname."

The Board found that GOLIA has no recognized meaning beyond its surname significance. Applicant argued that GOLIA is recognized as the Italian equivalent of GOLIATH, a Biblical and cultural reference connoting size and strength, but he provided no dictionary or translation evidence that "Golia" means "Goliath." The Board concluded that "the evidence supports a finding that the primary significance of GOLIA is as a surname, potentially derived from the Biblical name “Goliath” as a reflection of the physical characteristic of size."

Finally, the Board found that GOLIA has the structure and pronunciation of a surname: "we have multiple examples of other surnames that share the GOL- prefix or the -IA suffix as well as examples of surnames that differ by only one letter. In particular, on their face names such as GOLIAS, GOLIO, GOLIS and GOLLA are quite similar to GOLIA."

And so, the Board affirmed the refusal.

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TTABlogger comment: To state the obvious, you start out behind the 8-ball when the mark you're trying to register is your own surname.

Text Copyright John L. Welch 2026.

TTABlog Test: Is PLAYER EXCLUSIVE for Distilled Spirits Confusable with PLAYERS VODKA for Vodka?

2026-04-17T06:29:00.004-04:00

The USPTO refused to register the proposed mark PLAYER EXCLUSIVE, in standard characters, for “Bourbon; Distilled spirits,” [EXCLUSIVE disclaimed], concluding that confusion is likely with the registered mark PLAYERS VODKA, in standard characters, for “vodka” [VODKA disclaimed]. Applicant Game Changer argued that the marks differ in meaning because the word "exclusive" shows that the goods sold under the mark will be special in some way, and further that a “player exclusive” is an item designed uniquely for a particular player, such a special basketball shoes made for a particular basketball player. How do you think this appeal came out? In re Game Changer Bourbon LLC, Serial No. 97934533 (April 15,2026) [not precedential] (Opinion by Judge George C. Pologeorgis).

The Marks: The first words in the marks are essentially identical, and the second words are disclaimed. "The first word, 'PLAYER(S),' is dominant in both marks and is more likely to be relied upon and remembered by consumers. The marks, considered in their entireties, look similar." They are also similar in sound: "It is likely that many consumers familiar with the cited mark may refer to the mark as simply PLAYERS when asking for the goods."

We also find the marks are similar in meaning and commercial impression. The shared use of the word “player” in both marks creates a common meaning. Consumers familiar with PLAYERS VODKA are likely to view PLAYER EXCLUSIVE for bourbon and other distilled spirits (which includes vodka) as a variation or extension of the PLAYERS VODKA mark. Many consumers will mistakenly conclude that these businesses operated under these marks are connected, perhaps thinking the new “exclusive” version is a business extension involving more exclusive or limited production goods.

As to Game Changer's aforementioned arguments, the Board found that "most consumers of Applicant’s bourbon and other distilled spirits are unlikely to connect these goods with custom-made basketball shoes." Moreover, "consumers familiar with the cited PLAYERS VODKA mark may view Applicant’s mark as a business extension, with Registrant extending its business from vodka to other exclusive distilled spirits."

"The marks are similar. The first DuPont factor supports the refusal."

The Goods: Since vodka is a distilled spirit, the goods overlap, and so the second DuPont factor strongly supports the refusal. The overlapping goods are presumed to travel in the same normal trade channels to the same classes of consumers, and so the third DuPont factor "also heavily favors a finding that confusion is likely."

Game Changer argued that its goods are very expensive and thus will be purchased with care. It submitted evidence confirming high prices for some of its goods (e.g., $4500 for a small bottle of Steph Curry endorsed bourbon). However, because the application contains no restrictions on the goods, it covers bourbon and distilled spirits sold at any price point. The Board found the fourth DuPont factor to be neutral.

Conclusion: "The marks are similar and the goods are identical in part. The identical in part goods are presumed to travel through the same trade channels and offered to the same classes of purchasers. The record supports the refusal. Confusion is likely."

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TTABlogger comment: WYHA? The "line extension" finding is another of the Boards's makeweight arguments. In the real world, do you think there would be any confusion?

Text Copyright John L. Welch 2026.

TTABlog Test: Is SEAFISH Merely Descriptive of Seafood?

2026-04-16T06:26:00.004-04:00

The USPTO refused to register the proposed mark SEAFISH for, inter alia, "seafood products and fish-based food products, namely, processed seafood; frozen seafood; frozen fish," on the ground of mere descriptiveness under Section 2(e)(1). Applicant Triunfo Foods argued that SEAFISH is not merely descriptive but only suggestive because it is “not an actual word, but a new, fun play on words,” a "'whimsical' and 'unitary term that is an imaginative combination of 'sea' and 'fish, which together make up more than the sum of their separate parts.'" How do you think this appeal came out? In re Triunfo Foods Import & Export Corp., Serial No. 97898551 (April 1, 2026) [not precedential] (Opinion by Judge Angela Lykos).

Triunfo further argued that, while competitors in the seafood industry may need to use the words "sea" and "fish" to describe their products, “it is highly unlikely any of them would need to use SEAFISH in order to sell their products” because “[t]here are innumerable other terms and combinations thereof which a competitor could adopt to describe similar goods.” However, the evidence submitted by Examining Attorney Brett Golden "belie[d] applicant's arguments."

“Sea fish,” otherwise known as “saltwater fish,” is a well-recognized designation in the seafood industry and includes many species for human consumption such as bluefin tuna and Atlantic cod. Contrary to Applicant’s assertion, the term “sea fish” appears as an entry in multiple dictionaries to denote “any fish found in salt waters” or “a fish that lives in the sea, rather than in rivers or lakes. The fact that Applicant’s mark is presented as a single term as opposed to the two separate words “sea” and “fish” does not lessen its merely descriptive nature. *** This is especially so here since “seafish” is also an alternative form of spelling of “sea fish.”

Triunfo did not submit any evidence to support its claim that the term SEAFISH is "whimsical." The evidence shows that "SEAFISH in relation to Applicant’s goods is not unique but rather is part of ordinary U.S. lexicon."

Triunfo pointed to its prior application for the same mark and goods, as to which another examining attorney also issued a mere descriptiveness final refusal but subsequently withdrew the refusal while the application was on appeal at the Board. However, that application was abandoned for failure to timely file a statement of use. The Board noted that it is "not bound by a previous examining attorney’s decision."

In sum, Applicant’s proposed mark SEAFISH immediately conveys, without conjecture or speculation, the type of Applicant’s fish or a key attribute of Applicant’s processed fish and seafood products. The evidence further shows that consumers may specifically shop for “seafish” for nutritional value or other health reasons. Competitors in the seafood industry should be free to use this merely descriptive designation when describing their own fish items to the public in advertising and marketing materials

And so, the Board affirmed the refusal.

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TTABlogger comment: Is this a WYHA? Too bad for the applicant. It had the registration with reach, but watched it swim away

Text Copyright John L. Welch 2026.

TTABlog Test: Is Costume Jewelry Related to Clothing Under Section 2(d)?

2026-04-15T06:53:00.004-04:00

The USPTO refused to register the mark WORLD SPORTS (in standard characters) for "costume jewelry, namely, metal charms for necklaces and bracelets" [SPORTS disclaimed], concluding that confusion is likely with the identical mark registered for "shirts; sweatshirts; headwear, namely, hats, caps, and beanies." The first DuPont factor weighed "heavily" in favor of affirmance of the refusal, but what about the goods? How do you think this came out? In re Twinchew LLC, Serial No. 98289940 (April 8, 2026) [not precedential] (Opinion by Judge David K. Heasley).

The Marks: Applicant Twinchew feebly argued that that its mark, WORLD SPORTS, as used on its metal charms for necklaces and bracelets, "will only be attached with the company name, TWINCHEW LLC,” and will only be displayed in a heart shape. So what?, said the Board. “In determining the applicant’s right to registration, only the mark as set forth in the application may be considered; whether or not the mark is used with an associated house mark is not controlling.”

Twinchew asserted that the cited mark is highly descriptive of registrant's goods, namely, sports-related clothing intended for a global market, and is therefore weak, pointing to three registrations and a pending application for marks containing the term WORLD SPORTS, and four websites offering sportswear under names that include that term.

The Board observed that the cited mark issued under Section 2(f), an admission that the mark was not inherently distinctive. However, from the point of its registration, the cited mark "is entitled to the presumption that it has acquired distinctiveness" and the registration is presumed to be valid. "Applicant’s argument that Registrant’s mark is 'highly descriptive' is tantamount to an impermissible collateral attack on the cited registered mark, which cannot be countenanced absent a petition for cancellation."

The Board concluded that Twinchew's third-party evidence failed to weaken the cited mark, either conceptually or commercially. Of the three third-party registrations and one application it presented, only one was for sportswear. Moreover, all were based on Sections 44(e) or 66(a) of the Act and not on used in commerce. "They thus carry even less probative value." Twinchew's four third-party website examples showed variant uses of “World” and “Sports,” but fell far short of the “ubiquitous” or “considerable” use that the Federal Circuit found to demonstrate weakness in Jack Wolfskin and Juice Generation.

All in all, no commercial weakness has been shown under the sixth DuPont factor. Registrant’s WORLD SPORTS mark has some inherent conceptual weakness, but has been accepted for registration based on acquired distinctiveness. “[E]ven if [Registrant’s] marks are inherently weak, that is not fatal to a finding of likelihood of confusion because even weak marks are entitled to protection against confusion."

The Goods: The Board once again noted that "[w]here, as here, the respective marks are identical, the degree of similarity or relatedness between the goods needed to support a finding of likelihood of confusion declines." To show the relatedness of the goods, Examining Attorney Diane Collopy relied on six websites [Ralph Lauren, Banana Republic, Tommy Hilfiger, Gucci, Ann Taylor, and Tory Burch] that offer both jewelry and clothing. The Board was impressed.

In this case, the respective goods--shirts, sweatshirts and headwear on the one hand and metal charms for necklaces and bracelets on the other--can be purchased on the same shopping trip, can be worn on the upper body, and can complement each other when worn together.

Twinchew argued that this third-party evidence was not probative, since registrant is not a fashion designer but rather a sports agency and thus the involved goods travel through different trade channels to different types of purchasers. The Board was unmoved. "'[A]pplicant’s reliance on registrant’s website in an attempt to restrict the scope of registrant’s goods is to no avail. An applicant may not restrict the scope of the goods covered in the cited registration by argument or extrinsic evidence.'" [Emphasis by the Board].

What’s more, even if we were to credit Applicant’s argument, and to find that Registrant’s identified clothing items were promotional items, collateral to its sports agency business, that would not render the respective goods unrelated. Sports-related apparel, such as a cap or a sweatshirt, may be worn as part of a casual ensemble that includes sports-related metal charms for necklaces and bracelets.

Conclusion: Although the cited mark has some conceptual weakness (but no commercial weakness) even weak marks are entitled to protection against likely confusion. And so, the Board affirmed the refusal.

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TTABlogger comment: Do you think the registrant, in the real world, would care if someone sold charms under the WORLD SPORTS mark? BTW: another makeweight argument regarding complementary use.

Text Copyright John L. Welch 2026.

TTABlog Test: Are Dental Implants Related to Syringes Under Section 2(d)?

2026-04-14T07:02:00.004-04:00

The USPTO refused to register the mark TRIACTIVE for dental implants, concluding that confusion is likely with the registered mark TRIACTIV (standard characters) for, inter alia, syringes for medical use. The Board found the marks to be "very similar in appearance, sound, connotation, and overall commercial impression." But what about the goods? How do you think this came out? In re Paragon Implant LLC, Serial No. 98745742 (April 8, 2026) [not precedential] (Opinion by Judge George C. Pologeorgis).

Examining Attorney Rebekah Richardson submitted screenshots from nine dental and medical supply company websites offering both “dental implants” and either “syringes” or “catheters,” "but not necessarily under the same mark." [Emphasis added]. "While these websites do not demonstrate that the parties’ respective goods are sold under the same mark, they nonetheless demonstrate that relevant consumers have become accustomed to seeing both 'dental implants' and either “syringes” or “catheters” sold by the same entity."

Moreover, it is common knowledge that dental professionals employ needles and syringes, as well as intravenous catheters, to administer local anesthetics for various dental procedures, including the fitting and placement of “dental implants.” Thus, relevant consumers of the parties’ respective goods may perceive them as complementary in nature.

As to channels of trade, the third-party website evidence showed that "Applicant’s goods and Registrant’s goods are the type of goods that may be provided in the same online marketplace to similar or overlapping purchasers."

The Board acknowledged that Applicant Paragon's goods are directed to dental professionals, and the purchasers of the registrant's goods may be sophisticated and discriminating. However, that "does not necessarily mean that they are sophisticated or knowledgeable in the field of trademarks or immune from source confusion." "This is especially true here where the marks at issue are highly similar, the goods are related and the trade channels overlap."

The Board concluded that confusion is likely, and so it affirmed the refusal.

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TTABlogger comment: Compare this decision with the Board's recent DURAJECT decision [TTABlogged here], reversing a Section 2(d) refusal because the USPTO failed to show that opthalmic instruments and bone cement injectors are related goods. Both items could be found on the websites of certain large medical suppliers, but not under the same mark. Also, I think the "complementary" finding is just a makeweight.

Text Copyright John L. Welch 2026.

CAFC Affirms TTAB: Stick Figure for Vapes Not Confusable with "X" for Cigars

2026-04-13T07:08:00.004-04:00

In a dubiously precedential decision, the CAFC upheld the dismissal of Fuente Marketing's opposition to registration of the mark shown immediately below, for oral vaporizers (vapes), concluding that confusion is unlikely with Fuente's registered mark X for cigars, ashtrays, cigar cutters, and lighters. The Board determined that, although many of the DuPont factors weighed in Fuente's favor, the distinct commercial impressions created by the marks were sufficient to negate any likelihood of confusion. Fuente Marketing Ltd. v. Vaporous Technologies, LLC, Appeal No. 2024-1460 (Fed. Cir. April 5, 2025) [precedential].

Fuente challenged the Board’s analysis of the first and fifth DuPont factors—respectively, the similarity of the marks and the fame of Fuente’s registered X marks. Fuente also challenged the Board’s overall weighing of the factors. Vaporous contested the Board’s analysis of DuPont factors three and four—the similarity between the parties’ trade channels and the relative sophistication of each party’s consumers.

The Marks: The Board found that consumers would perceive Vaporous’s mark as a stick figure rather than the letter X. Fuente contended that the Board erred in relying on the parties’ stipulation that Vaporous's mark "consists of an abstract stick figure" (the wording in Vaporous's application) because the stipulation did not address how consumers would perceive the mark. See In re I.AM.Symbolic, LLC, 866 F.3d 1315, 1323 (Fed. Cir. 2017); Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 203 (Fed. Cir. 1992) (comparing commercial impression of marks from the perspective of purchasers of the goods under the registrations). The CAFC, however, concluded that the Board's reliance on the stipulation was harmless error, pointing out that the Board "reached the same dissimilarity conclusion without reference to the stipulation, and the Board’s conclusion is supported by substantial evidence." See Henkel Corp. v. Procter & Gamble Co., 560 F.3d 1286, 1289 n.2 (Fed. Cir. 2009) (error harmless considering express disavowal of reliance on erroneous rationale).

Fuente also argued that the Board ignored evidence that Vaporous’s mark would not be perceived as a stick figure, pointing to Vaporous's use of the mark "as part of its larger DABX branding." But not only did Fuente previously argue that the Board could not consider such external evidence, but the court was not persuaded that the Board "ignored evidence, much less relevant evidence."

To the extent that Fuente is advocating that we consider Vaporous’s use of the mark in connection with other marks not part of the applied- for mark, we decline to do so. See Denney v. Elizabeth Arden Sales Corp., 263 F.2d 347, 348 (C.C.P.A. 1959) (“In determining the applicant’s right to registration, only the mark as set forth in the application may be considered; whether or not the mark is used with an associated house mark is not controlling.”). The correct inquiry requires comparison only of the applied-for mark to Fuente’s registered X marks. In re I.AM.Symbolic, 866 F.3d at 1324.

The CAFC was simply "not persuaded that the Board failed to consider evidence in the record," concluding that "[s]ubstantial evidence supports the Board’s conclusion that consumers are likely to perceive the mark as a stick figure, and we may not reweigh the evidence on appeal." See In re NTP, Inc., 654 F.3d 1279, 1292 (Fed. Cir. 2011).

Fuente maintained that the Board failed to consider the sound of the involved marks, but actually the Board expressly found that Vaporous’s mark has no pronunciation and therefore “does not sound like the letter X.” And finally, Fuente claimed that the Board should have applied the legal principle that where the “parties’ goods are closely related, a lesser degree of similarity between the marks may be sufficient to give rise to a likelihood of confusion.” The CAFC brushed that argument aside because it "assumes what it aims to prove. It presupposes that substantial and confusing similarities between the marks exist when the Board found that they did not. The Board cannot alter its tolerance for similarities between the marks if it finds none exist."

Trade Channels and Buyer Sophistication: Vaporous contended that the Board erred regarding factors 3 and 4 because it "ignored reality," pointing to Fuente's prior coexistence agreement with another entity, stating that cigar purchasers are sophisticated and discerning consumers. Vaporous further asserted that Fuente's cigars "often sell quickly and are difficult to locate." The CAFC concluded that the Board did not err.

Registrability of an applicant’s mark “must be decided on the basis of the identification of goods set forth in the application,” regardless of what the record reveals as to the current real-world nature of the applicant’s goods, channels of trade, or class of purchasers. See Octocom Sys., Inc. v. Houston Comp. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990) (emphasis added).

Fame (Strength) of Fuente's Mark: The Board found that Fuente's X mark was arbitrary and conceptually strong, but as to commercial strength, Fuente failed to show that consumers independently consider the letter “X,” standing alone, as a source indicator. "Fuente’s evidence of marketplace recognition largely depicted the letter X integrated into other marks and advertising." The Board concluded that the X marks were entitled only to the same “protection accorded any inherently distinctive mark” and categorized factor 5 as neutral in the likelihood of confusion analysis.

Fuente asserted that the Board gave "no weight" to the conceptual strength of the X marks. Not so, said the CAFC: "the Board acknowledged the X marks are arbitrary, and thus conceptually strong, while separately concluding that this conceptual strength is offset by the marks’ limited commercial strength." [Emphasis by the CAFC]. The Board's finding that the fifth DuPont factor is neutral was supported by substantial evidence."

Third-Party Marks: The Board "may have been in error" when it stated that, under the sixth DuPont factor, Vaporous failed to submit any evidence of third-party use of similar marks on similar goods. However, "its overall assignment of little probative weight to the evidence" was not erroneous.

Vaporous’s evidence of a single third-party mark in use is insufficient to demonstrate a crowded field of similar marks sufficient to suggest consumers are accustomed to carefully distinguishing between such marks. See Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1235 (Fed. Cir. 2025). As such, we see no error in the Board’s assignment of “little probative weight” to Vaporous’s evidence.

Balancing the Factors: Fuente asserted that the Board failed to explain its balancing of the DuPont factors so that the appellate court could discern the Board’s rationale. The CAFC, however, saw no such problem:

[T]he Board’s path is discernable: As Fuente concedes, the Board concluded all but one DuPont factor was neutral or favored a likelihood of confusion. The Board’s finding that, nonetheless, there was no likelihood of confusion between the parties’ marks thus necessitates the conclusion that it considered factor one—the similarity or dissimilarity of the marks—sufficient, on its own, to find no likelihood of confusion. This is enough for us to discern the Board’s path to dismissal. See In re Charger Ventures LLC, 64 F.4th 1375, 1384 (Fed. Cir. 2023) (“We will, nevertheless, uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” (cleaned up)).

Fuente also contended that the Board erred in giving dispositive weight to the dissimilarity of the marks under the first DuPont factor and failing to give sufficient weight to the other factors. Again, the court was unmoved. "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.” Champagne Louis Roederer, S.A. v. Delicato Vineyards, 148 F.3d 1373, 1375 (Fed. Cir. 1998)."

In sum, the CAFC agreed with the Board that the differences between the marks outweighed all of the other relevant DuPont factors.

Read comments and post your comment here.

TTABlogger comment: I don't see why such a fact-dependent ruling was deemed precedential. What's new here?

Text Copyright John L. Welch 2026.

Trade Name Use is not Trademark Use, Says TTAB

2026-04-10T06:51:00.001-04:00

Things turned out not so grate for Maple Leaf Cheesemakers in its attempt to register the mark MAPLE LEAF CHEESE CO-OP for "cheese." Considering the only specimen of use, the Board found that Maple Leaf used the phrase only as a trade name and not as a source indicator, and so the proposed mark was not eligible for registration. In re Maple Leaf Cheesemakers, Inc., Serial No. 88663903 (April 8, 2026) [not precedential] (Opinion by Judge Thomas W. Wellington).

Section 45 of the Act defines a trade name as "any name used by a person to identify his or her business or vocation." "If a proposed mark functions solely as a trade name, registration must be refused." See, e.g., Martahus, 3 F.3d at 421. Note that a designation may function as both a trade name and a trademark.

“The question of whether a name used as a trade name also functions as a trademark is one of fact, and is determined from the manner in which the name is used and the probable impact on purchasers and prospective purchasers.” Diamond Hill Farms, 1994 TTAB LEXIS 16, at *2. Factors to consider include whether Applicant has used its full corporate name or entity designation, capitalized its name, utilized its name in the same lettering style as other matter, used its name in a significantly bolder or larger style of type, or displayed its name in a contrasting color. In re Univar Corp., No. 73786565, 1991 TTAB LEXIS 31, at *5.

Here, Maple Leaf's specimen of use (shown above) was a label for its packaged cheese. The proposed mark appears on the bottom line of the label, immediately preceded by the words "Distributed By:" and followed by Maple Leaf's city/state/zip code and website address. The font size, style and color for the “Distributed By:” wording is the same as that for the proposed mark. The Board agreed with Examining Attorney David Brookshire that consumers "will perceive MAPLE LEAF CHEESE CO-OP merely as a trade name, and not as a product source-identifier."

Specifically, “the applied-for mark only has the impression of identifying a business or a vocation, and therefore is an unregistrable trade name.” In contrast, consumers encountering this packaging will view the composite mark, MAPLE LEAF CHEESE with a maple leaf and banner design, that appears stylized, in color, and much more prominently at the top as the source-identifier for the cheese.

The Board observed that whether MAPLE LEAF CHEESE CO-OP is actually a business or entity name is irrelevant. It "does not distinguish Applicant’s goods from those of others. Accordingly, the proposed mark cannot proceed to registration under Sections 1, 2, and 45 of the Act."

Read comments and post your comment here.

TTABlogger comment: WYHA? I think that I would have amended the basis to intent-to-use, rather than appeal.

Text Copyright John L. Welch 2026.

TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?

2026-04-08T09:04:00.004-04:00

In re Wilson Carter, Serial No. 98290246 (April 1, 2026) [not precedential] (Opinion by Judge Mark A. Thurmon). [Section 2(d) refusal of the mark CLUTCH for "Batteries; Battery chargers for mobile phones; Battery chargers for use with electronics; Mobile telephone batteries" in view of the registered mark CLUTCH OUTDOORS for, inter alia, "solar-powered battery chargers for charging mobile and handheld electronic devices" [OUTDOORS disclaimed].

In re SC Bucin Mob SRL, Serial No. 79403753 (April 6, 2026) [not precedential] (Opinion by Judge Mark A. Thurmon) [Section 2(d) refusal of the mark shown below, for "Skadi-style non-metallic prefabricated houses; laminated wood carpentry, namely, laminated wooden exterior doors, wooden shutters" [WOOD disclaimed] in view of the registered mark INFINITY for "windows and plastic window frames."]

In re Halo Machine, Serial No. 98672491 (April 6, 2026) [not precedential] (Opinion by Judge Lawrence T. Stanley, Jr.). [Section 2(d) refusal of the mark HALO MACHINE for, inter alia, "custom additive manufacturing of firearm display stands and wristwatch display stands for others" [MACHINE disclaimed] in view of the registered mark HALO for, inter alia, "additive manufacturing for others," 'custom additive manufacturing," and "custom additive manufacturing for others."]

Read comments and post your comment here.

TTABlogger comment: How did you do? See any WYHA?s ?

Text Copyright John L. Welch 2026.

Affirming Section 2(d) Refusal, TTAB Rejects Consent Agreement and Finds Strategic Partners Inapplicable

2026-04-07T08:41:00.005-04:00

The Board affirmed a refusal to register the mark COLORS for "seminars directed toward personal behavior analysis and emotional self-improvement," concluding that confusion is likely with the identical mark registered (in both standard character and log form) for "workshops and seminars, live and online, in the field of therapeutic spiritual self-healing." Based on third-party website evidence, the Board found the services, the channels of trade, and classes of consumers to be identical or overlapping. Applicant Cook Capital focused on a consent agreement between its predecessor and the cited registrant, and on its ownership of a now-cancelled registration for the same mark and services as the subject application, but the Board rejected both excuses. In re Cook Capital, LLC, Serial No. 97627407 (March 30, 2026) [not precedential] (Opinion by Judge David K. Heasley).

Prior Consent Agreement: Considering the twelve-year-old consent agreement, the Board observed that "[a]t bottom, we must look at all of the surrounding circumstances . . . to determine if the consent reflects the reality of no likelihood of confusion in the marketplace, or if the parties struck a bargain that may be beneficial to their own interests, regardless of confusion to the public." It found that "[t]his case appears to present more of the latter than the former."

The Board noted the lack of evidence that, after Cook’s prior registration was cancelled and registrant’s two registrations became "incontestable" [sic! - i.e., the registrations were more than five-years-old], the registrant granted consent to Cook’s new application. "The silence is conspicuous. This tends to evince a prior consent agreement based on personal interest rather than concern for averting public confusion."

In short, on consideration of all applicable circumstances and evidence, we find that the Consent Agreement “has no effect on the likelihood of confusion.” In re Permagrain Prods., Inc., No. 73268400, 1984 WL 62813, *2-3 (TTAB 1984). Contrary to Applicant’s position, the Consent Agreement does not establish that its signatory parties had good reason to view public confusion as unlikely; and it does not establish a lack of actual confusion during the parties’ contemporaneous registration of their marks. In light of these facts, we find that “[t]he tenth DuPont factor does not outweigh all of the other relevant DuPont factors, which weigh heavily in favor of a conclusion of likelihood of confusion.”

Cook asserted that it was aware of no incidents of actual confusion in the twelve-year period since the agreement was signed, but this was mere uncorroborated attorney argument. Moreover, there was no requirement in the agreement that one party contact the other should confusion occur. "Consequently, Registrant’s silence on this issue may not be taken as a concession that there has been no actual confusion." [In this ex parte appeal, how was registrant going to be heard on this issue? - ed.].

Strategic Partners: Cook invoked the Board's Strategic Partners decision under the 13th DuPont Factor. There, the Board found that:

Applicant’s registered mark, a mark that is substantially similar to the applied-for mark, both covering “footwear,” has coexisted with the cited mark for over five years. At this stage, applicant’s existing registration is over five years old, and thus is not subject to attack by the owner of the cited registration on a claim of priority and likelihood of confusion. … We find that these facts tip the scale in favor of applicant and a finding of no likelihood of confusion.

But here, unlike Strategic Partners, Cook’s prior registration has been cancelled, and so its earlier registration is not an “existing registered mark” and the “unique situation” of Strategic Partners is not present here.

Cook asked, “if the purported shortcomings in the verbiage of the Consent Agreement are truly fatal to its efficacy, then why was it previously deemed acceptable to facilitate the maturation of Serial No. 85/643,944 into the now cancelled ’336 Registration?” The Board brushed that question aside. "Ultimately, the Board must decide each case on its own merits; the Office’s allowance of a prior registration does not bind it."

On careful consideration of the applicable law, arguments, and evidence, we find: that the marks’ identicality weighs heavily in favor of finding a likelihood of confusion under the first Dupont factor; that Applicant’s broadly-phrased recitation of services encompasses Registrant’s recited services, offered through unrestricted and overlapping channels of trade to overlapping groups of consumers, such that the second and third DuPont factors weigh in favor of a likelihood of confusion; and that the Consent Agreement, considered in light of Strategic Partners, does not tip the balance of the first through third DuPont factors, as the tenth, eighth, and thirteenth DuPont factors are neutral.

And so, the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: Reminder: there is no such thing as an "incontestable" registration. Read Sections 14 and 15 of the Act. With regard to the rejection of the consent agreement, note the recent Ye Olde Crewe decision involving the mark GASPARILLA [TTABlogged here].

Text Copyright John L. Welch 2026.

TTAB Reverses Section 2(d) Refusal of DAILY HARVEST CAFE Logo for Cafe Services: USPTO Fails to Prove Relatedness to Food Items and On-Line Services

2026-04-06T09:36:00.003-04:00

The Board reversed a Section 2(d) refusal of the mark shown below, for "cafe and restaurant services," finding confusion unlikely with the mark DAILY HARVEST registered for various food items and for "on-line retail store services featuring pre-prepared meals, desserts and beverages." It found the marks to be similar in sound, appearance, connotation and commercial impression," but the USPTO failed to prove that the involved goods and services are related. In re Daily Harvest Café, Serial No. 98269684 (April 2, 2026) [not precedential] (Opinion by Judge Wendy B. Cohen).

As to the services, the Examining Attorney pointed to four restaurant websites at which pre-packaged food can be ordered online [e.g., Starbucks.com]. The Board was unimpressed: "Four websites in support of the relatedness of Applicant’s restaurant and café services and Registrant’s on-line retail store services falls short of demonstrating that the relevant services are related."

As to the goods, the Board agreed with the applicant that the Office "must show something more than that similar or even identical marks are used for food products and for restaurant services." The Board has found the "something more" requirement to be met where, for example, the applicant’s mark made clear that its restaurant specialized in registrant’s type of goods; or where the record showed that a registrant’s goods were actually sold in the applicant’s restaurant; or where the mark was found to be “a very unique, strong mark."

The Examining Attorney argued that "because Registrant offers pre-packaged smoothies, soups and coffee and Applicant offers smoothies, soups and coffee at its restaurant and café, 'both parties actually sell identical goods in similar settings, that is a retail food establishment.'" The Board was again unimpressed: "the evidence in the record only suggests a general similarity between the type of food packaged by Registrant and some of the items available on the menu in Applicant’s restaurant and café."

It is commonly known that there are a large number of restaurants and cafés in the United States .... [E]vidence of only three or four restaurants selling pre-packaged foods is far from what would be considered numerous or substantial. * * * Thus, the evidence before us indicates that the degree of overlap between the sources of restaurant services and the sources of pre-packaged foods is de minimis; this is far cry from establishing the requirement of “something more” than the fact that restaurants serve food."

Finally, the Board observed, "nothing has been placed in the record upon which to base a finding that the mark DAILY HARVEST is a “very unique, strong mark."

And so, the Board reversed the refusal to register

Read comments and post your comment here.

TTABlogger comment: I suspect that there are a whole lot of restaurants that offer pre-packaged food on-line.

Text Copyright John L. Welch 2026.

TTAB Affirms 2(e)(4) Refusal of Rare Surname "TUGENDHAT" for Seating Furniture Due to Applicant's Own Marketing Materials

2026-04-03T09:55:00.003-04:00

The Board upheld a Section 2(e)(4) refusal of the proposed mark TUGENDHAT for "seating furniture," deeming the mark to be primarily merely a surname. Applicant Knoll argued that Tugendhat is an exceptionally rare surname but the Board pointed out that "even a rare surname may be held primarily merely a surname if its primary significance to purchasers is that of a surname." The evidence showed that "there is meaningful and fairly sufficient exposure to the surname throughout the United States, especially Applicant’s own marketing materials in an online catalog or at the point of sale." In re Knoll, Inc., Serial No. 98370045 (March 30, 2026) [not precedential] (Opinion by Judge George C. Pologeorgis).

Wikipedia entries indicated that "Tugendhat" was the surname of a family of Czech-Jewish textile and oil industrialists. Villa Tugendhat is an architecturally significant building in Brno, Czech Republic. The Tugendhat Chair was designed by Miles van der Rohe and Lilly Reich in 1929-1930 for the Tugendhat Villa. The Board noted that these Wikipedia statements are hearsay, but "because the content of the Wikipedia entries is consistent with other evidence of record, we accord these entries probative value to the extent that they show that TUGENDHAT, TUGENDHAT VILLA, and TUGENDHAT CHAIR have achieved recognition significant enough that Wikipedia entries devoted to them have been created."

Most significantly, Knolls's own promotional materials emphasized the connection with the Tugendhat family and villa, the historical association, and the surname's origins. Knoll stated in its brief that "the Goods are named after the Tugendhat chair designed for the Tugendhat Villa, and named for the Tugendhat family …."

The evidence revealed at most 423 persons with the surname Tugendhat. The Board pointed out, however, that "the determination of whether a surname is common or rare is not determined solely by comparing the number of listings of the surname to the total number of listings in a computerized database, because even the most common surname would represent only a small fraction of the database." "Moreover, "even if TUGENDHAT” is a relatively rare surname in the United States, that would not per se preclude a finding that a term is primarily merely a surname inasmuch as even a rare surname may be held primarily merely a surname."

Put simply, Applicant’s self-made connection between its products and the Tugendhat family and its eponymous villa exacerbates the surname significance of TUGENDHAT because actual purchasers of Applicant’s products will encounter the mark alongside surname use of TUGENDHAT when viewing Applicant’s own advertising and marketing material and even point-of-sale information.

Knoll argued that the term TUGENDHAT is best recognized as the name of an architectural landmark, i.e., the Villa Tugendhat, and a specific design style of furniture, namely, the Tugendhat chair, and so consumers will associate the term with aesthetics and design, not a family lineage. However, there was no evidence to support that contention, nor evidence showing that "Tugendhat" has any meaning other than as a surname.

Knoll contended that Tugendhat does not have "the typical structure or phonetic quality of common American surnames" but instead is like the coined terms used by Ikea for its furniture and home goods. The Board was unmoved. There was no evidence that consumers would perceive Tugendhat as a brand name akin to Ikea's brands. Moreover, the Ikea brand names (Swedish-based) are "linguistically and culturally distinct from the German or Czech language."

In sum, we find that the purchasing public will understand TUGENDHAT as a family name regardless of whether descendants currently work for Applicant simply because Applicant’s own marketing material ties the mark to the Tugendhat family villa, reinforcing the surname perception of the purchasing public.

Read comments and post your comment here.

TTABlogger comment: Does the reference to a old Czech surname necessarily mean that American consumers will think it's a current American surname?

Text Copyright John L. Welch 2026.

Precedential No. 1: TTAB Finds 8-Slice Pancake Configuration Mark De Jure Functional

2026-04-02T09:50:00.005-04:00

In the first precedential opinion of 2026 (not counting the January re-designation of the 2025 DANKE/MERCI decision), the Board affirmed a refusal to register the proposed product configuration mark shown below, for pancakes, under Section 23(c) of the Lanham Act. The Board found that certain utilitarian advantages provided by the design, coupled with the applicants' own marketing materials and their statements to the Examining Attorney touting the design’s utilitarian advantages, required refusal of the application in order to "'protect[] competitors against a disadvantage (unrelated to recognition or reputation) that trademark protection might otherwise impose, namely their inability reasonably to replicate important non-reputation-related product features.'" (quoting Qualitex, 514 U.S. at 169). In re Misty Everson and Christine Maynard, Serial No. 97104306 (March 31, 2026) [precedential] (Opinion by Judge Robert Lavache).

The proposed mark "consists of a three-dimensional product design of a round pancake consisting of 8 uniform wedges. The broken lines depicting the curved outer edges of the wedges indicate placement of the mark on the goods and are not part of the mark. The stippling is a feature of the mark and does not indicate color."

Section 23(c) permits registration on the Supplemental Register of, inter alia, "any matter that as a whole is not functional." The Board observed that "the caselaw applying Section 2(e)(5) to potentially functional matter is equally applicable to functionality refusals under Section 23(c)." See Heatcon, 2015 TTAB LEXIS 360, at *12.

Matter is functional "'if it is essential to the use or purpose of the article or if it affects the cost or quality of the article,’ that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage." Qualitex, 514 U.S. at 165 (quoting Inwood Labs. v. Ives Labs., 456 U.S. 844, 850 n.10 (1982)). The Board once again applied the Morton-Norwich factors to determine whether the subject design at issue is functional for trademark purposes:

(1) the existence of a utility patent disclosing the utilitarian advantages of the design;

(2) advertising materials in which the originator of the design touts the design’s utilitarian advantages;

(3) the availability to competitors of functionally equivalent designs; and

(4) facts indicating that the design results in a comparatively simple or cheap method of manufacturing the product.

Becton, 675 F.3d at 1374 (citing Valu Eng’g, Inc. v. Rexnord Corp., 278 F.3d 1268, 1274 (Fed. Cir. 2002)); see Morton-Norwich, 671 F.2d at 1340-41.

Evidence was lacking as to the first and fourth Morton-Norwich factors, but the second and third factors supported the refusal.

Touting: Applicant's own "Brand Style Guide" stated that this design should be touted as a “new team-sized meal option” that is "shareable," 'dippable," and '[a]ny time-able." During prosecution, applicants explained that the design "allows pancakes . . . to be eaten seated, standing up, or walking," such that '[n]o utensils are needed, and it targets a family-sized serving." The design "allows family members to reach in to grab a slice or use a pie server to obtain a piece" of the pancake and enables "d[]ipping into a sauce such as maple syrup or blueberry compote."

Examining Attorney Joshua Sturman submitted excerpts from fourteen third-party websites that feature pancake recipes and that include photographs of pancakes cut into roughly equal wedges, often eight equal wedges.

The Board found that Applicant’s own marketing materials and statements "directly address, and express, the utilitarian advantages of the proposed product design, namely, facilitating more convenient serving, sharing, consumption, and transporting of the pancake." The third-party evidence provided "additional support for the conclusion that the product design embodied in the proposed mark offers certain utilitarian advantages, namely, shareability and customization of toppings on the individual wedges or slices."

We find that Applicant’s arguments to the contrary—that "there is no practical advantage to the [design’s] eight equal slices" and that the claimed design would "not confer any functional benefit like easier handling or consumption" contradict its own materials and prior statements in the record, which clearly emphasize the utility of a design that provides individual slices, particularly equal slices.

And so, the Board concluded that the second Morton-Norwich factor "strongly" supported the refusal.

Alternative Designs: Applicants argued that there is no competitive need to use their design because "there [are] many ways to present pancakes and that using 8 slices is only one of many," pointing to evidence showing six-, seven-, and ten-slice configurations, and also to photographs of pancakes presented in a stacked configuration, in some cases with a wedge cut out of the entire stack.

The Board, however, agreed with the Examining Attorney that, as a general matter, alternative designs need not be considered if the other evidence of record establishes functionality. See Becton, 675 F.3d at 1376 (stating that there is no need to consider availability of alternative designs “if functionality is found based on other considerations”). Nonetheless, for the sake of completeness, the Board considered these alternative designs.

As to the stacked pancakes, applicants failed to establish that this configuration "offers the same utilitarian benefits as the proposed design, at least with respect to facilitating more convenient serving, sharing, consuming, and transporting of the pancake," and so this is not a "functionally equivalent design." As to the unstacked pancakes, the only differences are in the number of slices.

[C]onsistent with the statements made in Applicant’s “Brand Style Guide” and in its response to the Examining Attorney’s request for information, both the drawing of the mark and the specimens of use show that the eight equal slices claimed in the applied-for configuration can result in eight appropriately-sized servings, especially when the pancake is large (or family-size) and shared among a group of people. As Applicant itself states, “[t]he number of slices in a pancake is usually determined by practical considerations, like the size of the pancake, [or] the desired portion size.

The Board observed that "the eight-equal-slices configuration is one of a very few superior designs for the utilitarian advantages Applicant itself touts. This same eight-slice configuration is commonly used with pizzas, pies, and cakes, as shown in the Examining Attorney’s evidence." [I find it a lot easier to cut eight more-or-less equal slices than seven or ten. - ed.] "Therefore, allowing 'exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage,' Qualitex, 514 U.S. at 165, and thus hinder competition."

Applicants pointed to the stippling in the mark which, according to their brief, represents “a texture” and “a gradient of the texture” of the pancake. The Board, however, noted the many photographs of pancakes in the record and concluded that the texture that Applicants claim "is simply the texture that typically results from the process of making pancakes. In other words, it is akin to a by-product of the manufacturing process. Therefore, we find that the claimed texture feature is functional." Cf., e.g., McGowen Precision Barrels, LLC v. Proof Rsch., Inc., No. 92067618, 2021 TTAB LEXIS 167, at *80, *84-85 (finding respondent’s trade dress functional because, inter alia, it resulted from the manufacturing process for the relevant products); Saint-Gobain Corp. v. 3M Co., No. 91119166, 2007 TTAB LEXIS 82, at *78 (finding the purple color of applicant’s sandpaper functional where, inter alia, it was a natural by-product of the manufacturing process).

Accordingly, the Board found that the third Morton-Norwich factor supported the refusal.

Conclusion: Finding the proposed configuration mark to be a functional design for applicants' goods, the Board affirmed the refusal under Section 23(c).

Read comments and post your comment here.

TTABlogger comment: Compare this decision with the Board's non-precedential decision in the Hershey bar case, TTABlogged here, where it reversed a functionality refusal of the 12-segment configuration of that candy bar.

TTAB Posts April 2026 Hearing Schedule

2026-04-01T09:48:00.010-04:00

The Trademark Trial and Appeal Board (Tee-Tee-Ā-Bee) has scheduled four oral hearings for the month of April 2026. In the first three cases listed below the hearings will held virtually. In the fourth, the hearing will be in-person at the Madison East Building 600 Dulany Street, 9th Floor (Hearing Room C), Alexandria, VA. Briefs and other papers for each case may be found at TTABVUE via the links provided.

April 16, 2026 - 10:00 AM [Virtual]: In re Western Veterinary IP, LLC, Serial No. 98727230 [Refusal to register the mark MONTANA EQUINE for "Breeding services for horses; Horse breeding and stud services; Veterinary sports medicine and physical rehabilitation services for horses through use of modalities and exercise; Veterinary dentistry; Veterinary emergency and trauma services; Veterinary services; Veterinary services, namely, full service veterinary care for horses, ponies, mules and donkeys including surgery, vaccinations, lameness treatment, reproductive medicine, preventative care and internal medicine; Veterinary specialty services featuring advanced dental and oral surgery; Veterinary specialty services featuring advanced medical, diagnostic and surgical services for animals; Veterinary surgery" [EQUINE disclaimed] in view of the registered mark MONTANA ROSE EQUINE THERAPY for “Equine massage and for "Equine massage and kinesthesiology services; Massage therapy services for horses; Physical rehabilitation services for horses through use of massage and exercises" [EQUINE THERAPY disclaimed].]

April 23, 2026 - 2:00 PM [Virtual]: In re Cardiovascular Research Foundation, Serial No. 98354882 [Refusal to register the mark NEW YORK VALVES: THE STRUCTURAL HEART SUMMIT for "downloadable electronic publications, namely, medical journals, books, magazines, fact sheets, update sheets, newsletters, and booklets in the field of vascular medicine:" "educational services, namely, conferences, seminars, and workshops concerning mammalian or human circulation system or heart valves, valvular heart conditions or diseases, and transcatheter valve therapies or interventions; providing non-downloadable electronic publications, namely, non-down medical journals, books, magazines, fact sheets, update sheets, newsletters, and booklets in the field of vascular medicine;" and "vascular research" [NEW YORK, SUMMIT, and THE STRUCTURAL HEART SUMMIT disclaimed] on the ground that the proposed mark is primarily geographically descriptive under Section 2(e)(2).

April 28, 2026 - 10:00 AM [Virtual]: In re BS Liquor, LLC DBA MudHen Brewing Company, Serial No. 97474171 [Section 2(d) refusal of the mark MUDHEN BREWING COMPANY for "beer" [BREWING COMPANY disclaimed] on the ground of likelihood of confusion with the registered mark MUD HENS for "restaurant and bar services."]

April 30, 2026 - 11:00 AM [In-person]: Campari America LLC v. Seven Skies, LLC, Opposition No. 91291788 [Section 2(d) Opposition to registration of the mark SEVEN SKIES for "Non-alcoholic cocktails, namely, mocktails" and "Alcoholic cocktails; Alcoholic fruit cocktail drinks; Prepared alcoholic cocktail; Wine-based cocktails" in view of the registered mark SKYY for "distilled spirits, namely vodka."]

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TTABlogger comment: What say you? See any WYHA?s?

TTAB Overturns 2(d) Refusal of HOUSE OF PRIM Due to Prior Settlement Agreement Between Applicant and Cited Registrant

2026-03-31T08:20:00.005-04:00

The Board reversed a refusal to register the mark HOUSE OF PRIM for goods and services related to home organization and design, concluding that confusion is unlikely with the registered mark PRIM for "Home organization services, namely, sorting and organizing household belongings." The Board found the marks confusingly similar and the services related, but not applicant's goods. However, a prior settlement agreement between applicants and the cited registrant outweighed all the other DuPont factors. In re Prim LLC, Serial Nos. 98301711, 98301726, 98301752, 98301773, 98301804 (March 27, 2026) [not precedential] (Opinion by Judge Cheryl S. Goodman).

The tenth DuPont factor, the market interface between the applicant and registrant, required an evaluation of a March 11, 2022 “Settlement Agreement” between them. "'[D]epending on the circumstances,' agreements between the involved parties 'may ... carry great weight' since the parties are in a 'better position to know the real life situation than bureaucrats or judges."

In the Settlement Agreement, applicant promised to re-brand from PRIM LIVING to HOUSE OF PRIM and the parties agreed that this new mark would not cause confusion with the PRIM mark. Applicant agreed not to apply to register PRIM or any similar variant, including PRIM LIVING. The parties promised continued cooperation in taking reasonable action to avoid confusion, and to make reasonable efforts to rectify any instances of likelihood of confusion that came to their attention.

The Examining Attorney argued that the settlement agreement does not function as a consent to registration of the mark in these applications because it was executed before the applications were filed. The Examining Attorney also argued that the agreement does not contain provisions “fundamental to a consent agreement.”

The Board observed that in In re Dare Foods, Inc., No. 88758625, 2022 TTAB LEXIS 92, at *24, it stated that it was aware of "no authority requiring a consent agreement to discuss all of these factors [listed in Four Seasons Hotels] in order to be probative.”

In this case, the parties’ settlement agreement, while not technically a consent to registration of a mark in any particular application, is an acknowledgment of a broader settlement relating to PRIM LIVING and other confusingly similar variants, and also addresses Applicant’s ability to rebrand with the mark that is the subject of these applications. * * * While the settlement agreement does not include some of the provisions we would typically see in a consent agreement, it was reached after the parties had been seeking to resolve a dispute regarding marks Registrant determined were confusingly similar (infringing) to her PRIM mark.

The Board noted that the agreement explicitly refers to Registrant’s PRIM registration. "One would expect that, if the agreement’s broad provision that Applicant rebrand as HOUSE OF PRIM covered only the right to use that mark but not the right to register it for home organization services, the agreement would have said so explicitly."

The settlement agreement strongly supports Applicant’s position of no likelihood of confusion based on the reasoned analysis of Applicant and Registrant who understand the nature of their businesses.

The Board concluded that the agreement is entitled to "substantial weight," and it "outweighs the factors that indicate confusion is likely in all five applications."

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TTABlogger comment: If during negotiations, applicant wanted to be able register HOUSE OF PRIM, it could have expressly included that in the agreement. So, I think the absence of such a provision is meaningless. The fact is that the registrant did not consent to registration. Will we see an opposition?

TTAB Reverses CASA BLANCA Refusal: UPSTO Fails to Prove Relatedness of Tequila and Wine

2026-03-30T09:46:00.004-04:00

The Board reversed the USPTO's refusal to register the mark CASA BLANCA for "distilled spirits, namely, spirits distilled from the blue tequilana weber variety of agave plant,” concluding that the USPTO failed to prove likely confusion with the registered mark CASABLANCA for "wine." The Board found the marks to be "nearly identical" and the trade channels overlapping, with the goods subject to impulse purchases. However, it also found the cited mark to be "highly suggestive" and the evidence insufficient to establish that "Applicant’s and Registrant’s particular types of alcoholic beverages are related." In re Lucien G. Lallouz, Serial No. 90782980 (March 27, 2026) [not precedential] (Opinion by Judge Angela Lykos).

The Goods: The Examining Attorney submitted only two examples of third-party uses under the same mark, and no third-party registrations covering both tequila and wine. "Two examples of third-party marketplace uses is unconvincing, especially when there is no indication whether Applicant’s specific type of tequila is made by any of these wineries/distilleries."

The Examining Attorney also contended that the goods are related because they are "complementary beverages often used together as cocktail mixers." The Board observed, however, that "[i]t is not unusual for recipes to contain many different ingredients and consumers are not likely to assume merely from the fact that two items are called for in the same recipe that they necessarily emanate from the same source of origin."

The mere existence of a handful of cocktail recipes incorporating wine and tequila does not mean that consumers recognize both beverages as ingredients commonly used together for cocktail recipes. * * * [W]e cannot extrapolate from this evidence that consumers following each recipe believe that these ingredients come from the same source. There is no evidence that the recipes use the same brands producing both wine and tequila. For the most part, wine and tequila are distinct types of alcoholic beverages consumed individually, not together, and this evidence fails to show otherwise.

The Examining Attorney lastly argued, based on a single article, that wine and tequila are related because tequila can be made using wine-making techniques. "Again, this evidence fails to show wine and tequila offered to consumers from the same entity under the same trademark."

The Board concluded that the second DuPont factor weighed against a likelihood of confusion finding, noting that "on a more developed record" it might rule otherwise.

Channels of Trade: The evidence showed that the normal trade channels for both tequila and wine include U.S. importers, wholesale distributors, online retailers, and the premises of winery/distillery tasting rooms. Applicant Lallouz argued that "in retail settings, wines are typically segregated and displayed separately from distilled spirits, a segregation that extends to online platforms and restaurant menus." The Board was unmoved: "Consumers browsing the aisles in retail liquor establishments are likely to 'jaunt to another counter or section of the store' and encounter a variety of alcoholic beverages and spirits, including wine and tequila."

Strength of the Cited Mark: The evidence revealed that "Casablanca" refers to wine originating from the Casablanca Valley in Chile, "making the cited mark highly suggestive." Third-party marketplace use of "Casablanca Valley" in connection with wine to indicate geographic origin "does not demonstrate commercial weakness because none of the examples involve use of 'Casablanca Valley' as a trademark. But with over 1200 examples, it is a strong indicator of conceptual weakness as it signals geographic origin." The Board therefore found that the sixth DuPont factor favored Applicant Lallouz.

Conclusion: Weighing the relevant DuPont factors, the Board found that "the lack of competent evidence to prove the relatedness between the goods, combined with the cited mark’s relative conceptual weakness in connection with wine, outweighs the virtual similarity of the marks and overlapping trade channels." It concluded that confusion is unlikely.

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TTABlogger comment: Will we see an opposition by the cited registrant?

Prof. Curtin Files Reply to Opposition to Petition for Certiorari in RAPUNZEL Consumer Standing Case

2026-03-27T08:24:00.005-04:00

Petitioner/Opposer/Appellant Rebecca Curtin has filed her Reply [here] to UTH's Opposition to her Petition for Writ of Certiorari. The case has been distributed for conference on April 17, 2026.

The Court has long held that the standards applicable to administrative agencies and federal courts differ. Indeed, the Court eighty-five years ago instructed that the “vital differentiations between the functions of judicial and administrative tribunals” must be observed. FCC v. Pottsville Broad. Co., 309 U.S. 134, 144 (1940). The Federal Circuit has disregarded that admonishment by imposing doctrines restricting access to federal courts, such as the zone-of-interests test, on administrative trademark opposition proceedings. That not only conflicts with this Court’s decisions, but also with the decisions of the Third, Fifth, and D.C. Circuits, which hold that such restrictions do not apply to administrative agencies.
* * * * * * * *
The importance of the issue presented further reinforces the need for this Court’s review. And this case is the appropriate vehicle to address the question presented. UTH suggests the result would be the same under the test that existed before the Federal Circuit’s errant decision in this case. But that suggestion ignores the record in this case. The Trademark Trial & Appeal Board (“Board”) concluded that Curtin satisfied the long-standing test from Ritchie v. Simpson, 170 F.3d 1092 (Fed. Cir. 1999), that governed who may participate in opposition proceedings. Only after improperly importing the test from Lexmark—requiring the zone-of-interests and proximate-causation tests—did the Board change position. The resolution of the question presented is of consequence to this case.

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TTABlog Test: Is DUNDER MIFFLIN Confusable with MIFFLIN for Paper Products?

2026-03-26T08:59:00.007-04:00

The Office [The USPTO, that is] refused to register the proposed mark DUNDER MIFFLIN for various goods in class 16, including gift wrapping paper, paper gift wrapping ribbons, printed greeting cards, and paper party supplies, finding confusion likely with the registered mark MIFFLIN for "paper labels and tags” and “plastic ornamental bows for decoration and gift wrapping and other paper products. The Board found the goods to be complementary and related, but what about the marks? How do you think this came out? In re NBCUniversal Media, LLC, Serial No. 97831933 (March 24, 2026)[not precedential] (Opinion by Judge Elizabeth A. Dunn).

The Examining Attorney argued that MIFFLIN (the name of Pennsylvania's first governor) is the dominant word in Applicant NBCUniversal's mark: "MIFFLIN could be seen as a shortened version or reference to DUNDER MIFFLIN. For example, DUNDER could be considered suggestive of dunderhead, which refers to an idiot in colloquial terms and thus act as a modifier to MIFFLIN, evoking humorous buffoonery."

The Board didn't buy it. There was no evidence that DUNDER is a dictionary term or has any descriptive significance vis-a-vis the involved goods. "The record provides no reason to find that the term DUNDER would be perceived as a form of 'dunderhead,' or that the term DUNDER would be perceived as a modifier of MIFFLIN."

Based on its fanciful nature and first position in the mark, we find the term DUNDER is slightly dominant in creating the commercial impression of Applicant’s DUNDER MIFFLIN mark. * * * In fact, we find that the mark DUNDER MIFFLIN creates a different commercial impression than the one created by the mark MIFFLIN alone.

Google search results for DUNDER MIFFLIN uniformly refer to the fictional paper supply company which is the setting for the television show "The Office." An article from Variety states that "The Office" was "by Far the Most-Streamed TV show in 2020," according to Nielsen ratings. Merchandise from Amazon, Peacock Shop, Etsy, and Spencer’s bear the DUNDER MIFFLIN mark and associate the mark with the show.

The Examining Attorney oddly argued that the comparative fame of the involved marks "is not significant” in an ex parte appeal. While that may be true in the abstract, "determining the connotation and overall commercial impression created by the two marks is part of the likelihood of confusion analysis." The Board found the evidence of how the purchasing public encounters the DUNDER MIFFLIN mark to be directly relevant to the assessment of the mark’s connotation and commercial impression. "That the same type of evidence may be considered in connection with fame does not bar its consideration."

The Board also disagreed with the Examining Attorney’s argument that “[A]pplicant has not established the relevant consumer of the applied-for goods would readily recognize the reference of DUNDER MIFFLIN to a fictional paper company associated with The Office.” The Board noted that "[t]he paper labels and tags and paper gift wrap involved here are paper products available to the general consumer. The Office was a television show about a paper company, and originally available to the general consumer on a television network, and, as demonstrated by the article in Variety, subsequently viewed by many more consumers via streaming services."

We find that the fanciful prefatory term DUNDER alters the overall commercial impression created by the term MIFFLIN alone. In addition, we find significant evidence that the connotation of the term DUNDER MIFFLIN to the general consumer of Applicant’s goods is a reference to the setting for the television show “The Office.”

And so, the Board reversed the refusal to register.

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TTABlogger comment: I used to watch the original British version of "The Office," when I still liked Ricky Gervais.

TTAB Reverses 2(d) Refusal of GOOD TIMES for Bourbon over Five "GOOD TIME(S)" Registrations for Alcoholic Beverages

2026-03-25T10:02:00.006-04:00

The USPTO cited five registrations in refusing to register the mark GOOD TIMES for "bourbon," all of the registrations owned by different owners. Although the goods are legally identical or related, the Board found that the differences in the marks and the conceptual weakness of "good times" (the first and sixth DuPont factors) outweighed the second and third factors. In re Genuine Risk, Serial No. 90170906 (March 23, 2026) [not precedential] (Opinion by Judge George C. Pologeorgis).

The Examining Attorney cited the following registered marks:

GOODE TIMES GUARANTEED for “alcoholic beverages except beers”
LET THE GOOD TIMES ROLL for “distilled spirits”
WE GROW GOOD TIMES for “alcoholic beverages except beers; distilled spirits”
CERTIFIED GOOD TIME and Design for “distilled spirits; vodka"
GUARD THE GOOD TIMES for “whiskey”

The Goods/Trade Channels/Customers: Because the broad identifications in each of the five cited registrations encompass Applicant Genuine Risk's more narrowly defined goods, the second DuPont factor "strongly" favored a finding of likelihood of confusion. Furthermore, since the involved goods are legally identical and there are no restrictions as to trade channels or classes of purchasers in any of the cited registrations or the involved application, the Board presumed that the goods are provided in the same trade channels and are offered to the same classes of purchasers. And so, the third DuPont factor also weighed "heavily" in favor of finding a likelihood of confusion.

Strength of the Cited Marks: Genuine Risk argued that the term "GOOD TIMES" is suggestive and inherently weak and diluted when used in connection with the goods listed in the cited registrations because it is "suggestive of the merriment consumers anticipate enjoying when imbibing alcoholic beverages." The Board agreed.

We find that the cited GOOD TIMES-formative marks themselves, each of which is combined with other terms and each of which covers one or more pertinent alcoholic beverages, show that marks containing the term GOOD TIMES for alcoholic beverages can be distinguished by additional matter and/or the differing connotations conveyed in light of the conceptual weakness of the “GOOD TIMES” element.

Genuine Risk did not submit any evidence of third-party use of marks identical or similar to the cited marks, and third-party registrations alone do not establish weakness in the marketplace. However, the registration evidence did show that "use of the wording GOOD TIMES in marks used in connection with alcoholic beverages has a commonly understood suggestive meaning and, therefore, this component of the cited marks is conceptually weak."

In light of its conceptual weakness, the GOOD TIMES component of each of the cited marks is entitled to only a limited scope of protection. Accordingly, the sixth DuPont factor favored a finding that confusion is not likely.

Comparing the Marks: The Board found that the cited marks and the mark GOOD TIMES "are somewhat similar visually and aurally in light of the shared wording GOOD TIMES. However, the similarity of the marks ends there." Bearing in mind that the wording GOOD TIMES is conceptually weak, the Board found that the cited marks "have differing connotations and overall commercial impressions when compared to Applicant’s mark."

Indeed, the structure and distinctive sentiments expressed in each of the cited marks are absent from Applicant’s mark. For example, the cited mark GUARD THE GOOD TIMES connotes protecting the good times one is experiencing. Further, the cited mark LET THE GOOD TIMES ROLL suggests that one should keep on having a good time. These connotations and commercial impressions are not present in Applicant’s mark. Moreover, given that the cited marks use “GOOD TIMES” as part of an overall distinctive phrase, we find it unlikely that consumers will view Applicant’s mark as a shortened form of any of the cited marks.

In sum, the Board found that the involved marks are "sufficiently dissimilar in structure, meaning and overall commercial impression, notwithstanding any similarities in sound and appearance due to the shared wording GOOD TIMES." Therefore, the first DuPont factor favored a finding that confusion is not likely.

Conclusion: The Board deemed the first and sixth DuPont factors to be "pivotal" and to outweigh the legal identity of the goods under the second DuPont factor, as well as the presumed identical trade channels and classes of purchasers under the third DuPont factor.

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TTABlogger comment: Good times for Genuine Risk! Would consumers think that one or two of the registered marks are slogans used by Genuine Risk: for example, LET THE GOOD TIME ROLL?

United TM Holdings Files Opposition to Petition for Certiorari in RAPUNZEL Consumer Standing Case.

2026-03-24T09:53:00.003-04:00

Applicant/Appellee/Respondent United Trademark Holdings, Inc. has filed a Brief in Opposition [pdf here] to Professor Rebecca Curtin's Petition for a Writ of Certiorari [here], now pending before the Supreme Court in the RAPUNZEL trademark opposition.

You will recall that the CAFC affirmed the Board's holding that "only commercial actors affected by the mark’s registration fall within the zone of interests to oppose the registration as generic, descriptive, or [failing to function as a trademark]," and it upheld the Board's dismissal of mere consumer Curtin's opposition to registration of the mark RAPUNZEL for dolls and toy figures on the ground of lack of statutory standing. Curtin v. United Trademark Holdings, Inc., 2025 USPQ2d 784 (Fed. Cir. 2025) [precedential]. Two excerpts from the Preliminary Statement in UTH's Brief in Opposition are set out below:

The Petition for a Writ of Certiorari (“Petition”) should be denied. The Federal Circuit’s unanimous decision faithfully applies the analytical framework this Court established in Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), to determine whether Petitioner, a self-described consumer and not a competitor, falls within the class of persons Congress authorized to bring an opposition proceeding under the Lanham Act (the “Act”). The decision below creates no circuit split, conflicts with no precedent of this Court, and raises no question of national importance warranting the exercise of this Court’s certiorari jurisdiction. As noted, Petitioner is not a competitor of Respondent, but a law professor who has publicly promoted her role in this dispute, suggesting that her interest in appearing before this Court is principally academic rather than grounded in the vindication of a cognizable legal injury.

* * * * * * * *

Petitioner’s attempt to recast this case as presenting the question whether Article III standing requirements apply to administrative proceedings fundamentally mischaracterizes the decision below. The Federal Circuit did not impose constitutional standing requirements on the Board. It engaged in precisely the exercise this Court prescribed in Lexmark: interpreting the statutory text of 15 U.S.C. § 1063 to determine the class of persons Congress authorized to bring an opposition. That exercise in statutory construction is not only appropriate but required, regardless of the forum.

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TTABlogger comment: Do you think the Court will grant the petition? BTW: that doll looks like Paige Bueckers to me.