The TTABlog®

TTAB Affirms Surname and 2(d) Refusals of FISCHER for Boats, Bags, Coolers, and Paddleboards

2026-11-13T06:15:47.593-05:00

The Board upheld a bifusal of the mark FISCHER for boats, bags, coolers and paddleboards (in four classes), finding the mark to be primarily merely a surname under Section 2(e)(4), and also (as to two of the classes) confusable with the identical mark for sports bags and snow skis under Section 2(d). Applicant Bote argued, as to the 2(d) refusal (bags and paddleboards), that the goods are different - water-related products versus snow-related products - but that argument failed to float. Its assertion that the primary significance of FISCHER in the context of its goods is to connote a fisher or fishing failed to lure the Board into reversing the surname refusal. In re Bote LLC, Serial No. 98726325 (November 9, 2026) [not precedential] (Opinion by Judge Robert Lavache).

Section 2(d): Bote's feeble evidence failed to make a dent in the inherent strength of the cited mark, and it introduced no evidence regarding the mark's commercial strength (or weakness). Because the involved marks are identical, the Board observed once again that a lesser degree of relatedness between the goods is needed to support likelihood of confusion. Third-party registrations and website evidence submitted by Examining Attorney Caroline Wood established the relatedness of the goods. The website evidence also established that the goods travel through the same trade channels to the same classes of consumers.

As to Bote's argument that the goods are different - water versus snow - the Board agreed with the Examining Attorney that "registrability is based on the identifications in the cited registrations and Applicant’s involved application, neither of which contain limitations as to any particular retail outlets or trade channels."

Applicant argued that the involved goods are "marketed and sold to very high-end, discerning customers of this type of sports equipment," but offered no evidence in support. The Board observed once again that "attorney argument is no substitute for evidence." Moreover, there are no limitations in the application or the cited registration limiting the classes or types of purchasers, or the trade channels, and so the goods are considered available to members of the general public.

Under Stone Lion, the Board must consider the least sophisticated purchaser. Here, "the least sophisticated purchaser is a member of the general public who may have less knowledge about the goods and exercise less diligence in their purchasing decisions, especially where, as here, the goods can be relatively inexpensive." The Board found that, "in the absence of evidence to the contrary, we must conclude that the least sophisticated purchasers here will not exercise anything other than ordinary care in selecting the goods at issue."

The Board therefore concluded that confusion is likely.

Section 2(e)(4): Evidence showed that the surname FISCHER ranks as 419th in the U.S.A. with 70,095 bearers. Other evidence indicated 42,768 individuals. In any case, "FISCHER is a relatively common surname in the U.S., and Applicant’s brief does not contend otherwise." The evidence also showed that FISCHER has the structure and pronunciation (or "look and feel") of a surname, and Bote did not contest this point.

The Board was unmoved by Bote's argument regarding other meanings for FISCHER:

[G]iven that FISCHER is a relatively common surname associated with at least one public figure [chess master Bobby Fischer], it is more likely that purchasers, including those who are aware of the derivation of the surname, would view FISCHER with a “c” as designating only a surname.

In any case, the Board pointed out, Bote's application covers more than just boats and paddleboards. "That is, there is no reason to conclude, based on this record, that purchasers would associate the other identified goods with fishing and thus view the proposed mark as primarily referring to a 'fisher.'"

And so, the Board affirmed this second refusal.

Read comments and post your comment here.

TTABlogger comment: Seems like at least a half-WYHA? PS: FWIW, Bill Fischer was a long-time major league pitcher and coach. Eddie Fischer was a popular crooner who was married to Debbie Reynolds and Elizabeth Taylor.

Text Copyright John L. Welch 2026.

TTAB Affirms 2(e)(4) Refusal, Finding MANN BAGS for Cornhole Bags to be Primarily Merely a Surname

2026-11-12T05:16:42.462-05:00

The Board affirmed a refusal to register the mark MANN BAGS for "Cornhole bags; Cornhole game boards; Cornhole game sets" [BAGS disclaimed], finding the mark to be primarily merely a surname. Applicant claimed that "cornhole players would understand Applicant’s proposed mark MANN BAGS for cornhole bags to be an off-color allusion to hangovers, parts of the male genitalia, contraception, and men’s handbags," but the Board found that argument "implausible." In re Mann Bags LLC, Serial No. 99144855 (November 10, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

The Board applied the well-known Benthin factors, first noting that the application at issue was signed by applicant's owner, Desmond Mann [Stike one!]. Examining Attorney Octavia Green provided website pages referencing educator Horace Mann, jazz musician Herbie Mann, professional basketball player Terance Mann, professional football player Charles Mann, Olympic hurdler Ralph Mann, the director Michael Mann, the singer Aimee Mann, the actor Gabriel Mann, the actress Leslie Mann, the professional football player Charles Mann, the professional basketball player Tre Mann, U.S. Congressman Tracey Mann, the German author Thomas Mann, and the stage actor Terrence Mann. [Strike two!]. Applicant acknowledged that the surname Mann appears about 80,000 times in the 2010 U.S. Census, and that Mann is "the 378th most common surname in the United States." [Strike three!]. MANN has the structure and pronunciation of a surname. [Strike four!]. And MANN BAGS for cornhole bags does not have any recognized meaning other than as a surname. [Five!].

Applicant argued that the surname significance of MANN is not the primary significance of the mark MANN BAGS, citing pages from the Urban Dictionary defining the noun “MANbag” as follows: “1. Puffy swelling under the eye after a boozy night 2. Slang: testicles 3. Small handbag for a man made from leather, fabric or other substance displaying a brand name such as Gucci, Prada, Adidas or Game 4. Slang: condom 5. (Biblical): David kept his sling and stones in a MANbag (if he’d thought to, he could have kept his iPod in there as well).”

The Board had two problems with that argument: first applicant's mark is MANN BAGS, not "man-bag," "man bag" or MANbag. "We must consider the MANN BAGS mark that Applicant seeks to register for the goods identified in the application as “Cornhole bags,” not what Applicant describes as a “homophone of the surname Mann."

Second, "what applicant describes as 'the creation of a pun,' or a 'double entendre' is nowhere mentioned or even implied on Applicant’s website, which instead explains the origin of the Mann family’s cornhole bag business": "the sensitivity of the Manns’ daughter Miriam to the 'materials used on the slick and stick bags,' which caused the Manns to 'search[ ] for different materials that she could be comfortable with.'"

Against the backdrop of the explanation of how “the idea of Mann Bags was born” on Applicant’s website, Applicant’s claim that cornhole players would understand Applicant’s proposed mark MANN BAGS for cornhole bags to be an off-color allusion to hangovers, parts of the male genitalia, contraception, and men’s handbags is utterly implausible.

Finally, the Board observed that the combination of MANN with the generic term BAGS does not avoid the Section 2(e)(4) bar: "Where, as here, incapable wording is appended to a surname, the combination when viewed as a whole in the context of the Applicant’s goods will be considered to be primarily merely a surname under Section 2(e)(4). Weiss Watch, 2017 WL 2876824, at *6."

Read comments and post your comment here.

TTABlogger comment: Applicant offers "professional cornhole bags." Are there professional cornholers? Amateur bags? P.S., on second thought, I don't think the double entendre argument was that bad. Why does it matter what the website says? It's a question of consumer perception, not what applicant intended.

Text Copyright John L. Welch 2026.

TTAB Finds NO SHAVE FUE to be Generic for . . . . Guess What?

2026-11-11T05:59:04.576-05:00

The Board upheld a refusal to register the proposed mark NO SHAVE FUE for "Performing non invasive cosmetic medical procedures; Medical services rendered in relation to hair restoration, hair treatments and hair transplants" [FUE disclaimed] on the ground of genericness. Applicant argued that third party uses of NO SHAVE FUE were infringements of its mark, and that there are other names for this procedure. The Board said "phooey." In re Advanced Hair Restoration LLC, Serial No. 97676476 (November 9, 2026) [not precedential] (Opinion by Judge Mark A. Thurmon).

FUE is an acronym for "follicular unit extraction," a hair restoration procedure that involves harvesting hair follicles from an area where they remain healthy, and then transplanting those healthy follicles in an area where the patient has few or no healthy follicles. "The 'no shave' or 'unshaven' FUE procedure does not require shaving a patient’s head, and therefore, enables patients to return to normal activities sooner."

The Board found the genus of the services to be defined by applicant's recitation of services. The relevant consumers are "individuals seeking cosmetic medical procedures or hair restoration services of the type identified in the application."

The third-party website evidence submitted by Trademark Examiner Amy E. Thomas was "compelling." It established that both providers and patients understand No Shave FUE as the generic name of a widely-available medical procedure. Moreover, applicant used the term generically at its own website.

The evidence shows that the No Shave FUE procedure falls within both services identified in the application. No Shave FUE is a non-invasive cosmetic medical procedure. It is used to treat hair loss, which is a cosmetic issue. No Shave FUE is also a medical service rendered in relation to hair restoration, hair treatments and hair transplants. The applied-for mark is generic for a specific procedure that falls within the scope of the genus.

Applicant's assertion that the third-party users are infringers got short shrift from the Board: "our inquiry does not depend upon what legal actions Applicant takes against third parties."

The Board agreed that there are other names for this procedure: unshaven FUE, nonshaven FUE, long-hair FUE, shave-less FUE, or hair transplantation without shaving. "[T]hat fact is of no consequence. The sole question before us is whether No Shave FUE is generic. The existence of other generic terms for the same service is both unsurprising and irrelevant."

Observing that "a term is generic and cannot be protected as a trademark if the term is the generic name of a subcategory of the full genus," the Board conclude that "No Shave FUE is a particular medical procedure performed by hair restoration clinics throughout the United States. This phrase is generic for a subgenus of the services identified in the application."

Read comments and post your comment here.

TTABlogger comment: You don't have to be a sub-genius to reach the same conclusion as the Board.

Text Copyright John L. Welch 2026.

TTABlog Test: Is KINETIK for Pipeline Laying Services Confusable with QINETIQ for Construction Management Services?

2026-11-10T06:25:18.943-05:00

The USPTO refused to register the mark KINETIK, in standard character and stylized form, for, inter alia, “oil, gas and water pipeline laying," deeming confusion likely with the registered mark QINETIQ for, inter alia, "construction management services," "advisory services relating to the construction, repair and maintenance of building structures,” and “advisory services in the field of the construction, repair and maintenance of civil engineering structures." The Board found that the services do not overlap, that they inherently require some deliberation in the purchasing process, and that the word "kinetic" is somewhat conceptually weak. But what about the marks? Are they too close anyway? In re Kinetik Holdings Inc., Serial Nos. 97457836 and 97457861 (November 6, 2026) [not precedential] (Opinion by Judge Lawrence T. Stanley, Jr.).

The Services: The broadly recited services in the cited registration encompass applicant's management and advisory services in the field of pipeline construction. "The question, then, is whether managing or advising on pipeline construction is related to performing a step in that construction — namely, Applicant’s oil, gas and water pipeline laying." The Board answered in the affirmative.

The relationship is not one of encompassment; we do not suggest that Registrant’s management and advisory services include performing Applicant’s pipeline-laying work. Rather, the services are intrinsically complementary: one covers the management of, and advice concerning, the pipeline-construction process, and the other covers a step that must be performed within that very process.

The website evidence submitted by Examining Attorney Maureen Dall Lott confirmed the relatedness of the services, demonstrating that "numerous entities offer both oil, gas and/or water pipeline construction/pipeline laying services and construction management or advisory services under the same mark." Furthermore, a bunch of use-based third-party registrations showed that the same entity has registered a single mark identifying both pipeline construction/pipeline laying services and construction management, project management, or construction advisory services.

The Board therefore found that the second DuPont factor supported the refusal. The website evidence also established that the services are offered in overlapping trade channels, and so the third DuPont factor supported the refusal as well.

The Marks: "Although the first and last letters in Applicant’s marks and the Cited Mark are not the same, each of the marks presents a degree of visual symmetry by virtue of using the same letter at the beginning and end of the word." [rather weak tea - ed.]. As to the stylized mark, the cited mark is in standard character form and could be used in a style like that of applicant.

The Board found most significant the fact that the marks could be pronounced the same way. "There is no correct pronunciation of a mark that is not a recognized word, and consumers may pronounce a coined term in various ways."

The record establishes that the letter “Q,” when not followed by a “U,” is often pronounced with a hard “k” sound, as in “qwerty,” “Qatari,” “qadi,” “sheqel,” and “Iraqi.” Because the only differences between the words of the respective marks are the substitution of the letter “K” for the letter “Q” at the beginning and end, and because the letter “Q” in the Cited Mark may readily be voiced as a hard “k,” the marks are likely to be pronounced identically. “Similarity in sound alone may be sufficient for a finding of likelihood of confusion.”

The Board also found that the marks "share significantly similar connotations and commercial impressions. Each mark would likely be perceived by consumers as a misspelling of the English word 'kinetic.'" [doubtful - ed.].

Applicant argued, of course, that its mark KINETIC differs in appearance and pronunciation from the cited mark, but the Board was unmoved.

The possibility that some consumers might voice the Cited Mark differently does not diminish the likelihood that many consumers would pronounce the two marks identically. Finally, even accepting that some consumers would notice the spelling difference, the marks nonetheless share the identical dominant sound and a similar underlying meaning as misspellings of “kinetic.” The visual difference of substituting “K” for “Q” at the beginning and end of the marks does not overcome the marks’ identical pronunciation and significantly similar connotation.

And so, the first DuPont factor supported the refusal.

Purchasing conditions: Per Stone Lion, the Board must look to the least sophisticated potential purchasers under the fourth DuPont factor. However, "even less sophisticated individual consumers of Registrant’s services are likely to exercise care in purchasing given the nature of the services."

Weighing these considerations, and because the relevant services inherently involve some deliberation while the cited registration’s breadth precludes assuming uniformly sophisticated purchasers, the fourth DuPont factor weighs somewhat — but not heavily — against a finding of likelihood of confusion.

Strength of the Cited Mark: The Board agreed with applicant that the word "kinetic" — which denotes "a type of energy produced by motion" — "is somewhat conceptually weak as applied to services in the energy and pipeline fields." [I think "kinetic" is too vague to suggestive anything about the services - ed.]. "The evidence establishes only modest weakness, however."

Whatever modest conceptual weakness the term “kinetic” carries does not extend so far as to permit registration of a phonetically identical mark for related services.

And so, the sixth DuPont factor weighed "only slightly" against a conclusion of likelihood of confusion.

On balance, the factors favoring a likelihood of confusion — the marks’ similarity (especially their phonetic identity), the relatedness of the services, and overlapping trade channels — outweigh the factors weighing against it — purchaser sophistication and the conceptual weakness of the Cited Mark. Neither counterweight alters the result.

Conclusion: "To the extent that any doubts might exist as to the correctness of this conclusion, we resolve such doubts in favor of the prior registrant."

Read comments and post your comment here.

TTABlogger comment: I have quite a bit of doubt. I would have reversed the refusal.

Text Copyright John L. Welch 2026.

TTABlog Celebrates 22nd Anniversary !

2026-11-09T06:25:30.145-05:00

Actually it was yesterday. The TTABlog was hatched on November 8, 2004, with a post entitled "Leo Stoller Loses Again." Remember him? Here we are, more than 6.000 blog posts later. Thank you all for reading!

Read comments and post your comment here.

Text Copyright John L. Welch 2026.

TTABlog Test: Is WORLDLE Confusable with WORDLE for Game Software?

2026-11-06T06:04:10.782-05:00

The New York Times opposed an application to register the mark WORLDLE for "Providing online non-downloadable game software," claiming a likelihood of confusion with its registered mark WORDLE for "Downloadable computer application software for social networking, namely, for posting, showing, or displaying information in the field of electronic gaming via the Internet, namely, software for playing word puzzle games." The Board found Applicant’s non-downloadable game software to be "very closely related" to NYT’s downloadable software for playing word puzzle games. But what about the marks? Does that extra "L" make a difference? The New York Times Company v. Worldle LLC, Opposition No. 91291631 (November 4, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande).

Beginning with the marks, the Board found that the first DuPont weighed in favor of Opposer NYT.

[W]hile the marks aren’t identical, we find that they look very similar and that many consumers will pronounce them similarly. As to meaning, we find, based on the limited record before us, that to the extent that some consumers derive any meaning from them (as opposed to viewing them as made-up words) both marks are suggestive of puzzle games, one involving words and the other involving geography. Overall, the marks, viewed in their entireties, are quite similar.

The Board noted that the opposed application is not limited to any particular type(s) of game, so the identification of goods encompassed NYT's "word puzzle games." The Board found "a close intrinsic relationship between the respective goods and services." NYT provided evidence that four other companies own active registrations that identify both downloadable game software and the service of offering nondownloadable game software. "This constitutes a bit more evidence that consumers view the respective software products and services to be related."

As to the third DuPont factor, "where, as here, the goods and services are very closely related, we presume that they’re distributed through the same channels to the same types of customers." Moreover, the game software is offered to the general public, and so the customer classes "plainly overlap."

The fourth factor, puchaser care, favored NYT: "The general public includes a substantial proportion of unsophisticated consumers. And because the game software is free and therefore subject to impulse downloading, the degree of care in choosing game software is likely to be low."

Applicant argued that the mark WORDLE is weak, but its evidence was deemed to "move the needle little." The Board found the WORDLE mark to be suggestive and thus inherently distinctive, "possessing a degree of conceptual strength on par with the average mark that has been registered without a showing of acquired distinctiveness under Section 2(f)." As to commercial strength, WORDLE is "strong and well-known." In sum, the Board deemed the sixth DuPont factor to be neutral, while the fifth factor weighed in favor of the NYT.

Applicant pointed to the lack of actual confusion despite four years of concurrent use, but the Board was unimpressed: "When the goods and services are very inexpensive (or, here, free) consumers are less apt to spend the time and effort to report instances of confusion." Furthermore, as Applicant itself pointed out, any instances of actual confusion can quickly be corrected "at zero cost" by simply closing the browser tab for Applicant’s game. "This further saps consumers’ incentive to report any instances of actual confusion and, thus, the probative value of the lack of such evidence."

In these market circumstances, we find the lack of actual confusion evidence neutral or, at best, to weigh only very slightly in Applicant’s favor.

The Board found factors 9 through 13 to be neutral. "It is clear to us that, on balance, the relevant factors overwhelmingly weigh in favor of a conclusion that Applicant’s mark is likely to cause confusion in view of Opposer’s registered mark." And so, the Board sustained the opposition.

Read comments and post your comment here.

TTABlogger comment: If one noticed the different spellings, one might think that WORLDLE is a variant of, or a brand extension of, the WORDLE game.

Text Copyright John L. Welch 2026.

TTABlog Test: Is "PILATES 80/20" Merely Descriptive of Pilates Instruction?

2026-11-05T06:20:31.075-05:00

The USPTO refused to register the proposed mark PILATES 80/20 for "Providing fitness and exercise studio services, namely, pilates instruction and training" [PILATES disclaimed], deeming the mark to be merely descriptive of the services. "But what does 80/20 mean? That is the primary question in this appeal." Applicant Ross described her "fitness model" as "grounded in Pilates practice but also includes sports medicine techniques, combined in an approximate ratio of 80:20, i.e., 80% Pilates and 20% personal training." How do you think this appeal came out. In re Patrice Edmonds Ross, Serial No. 99088802 (November 3, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

The Examining Attorney claimed that the "Pareto principle" - "the idea that 80% of your results come from 20% of your efforts" - "is commonly applied to Pilates which indicates that 80% of your results will come from focusing 20% of your efforts on the fundamental Pilates moves with correct form, which will yield better results than just performing a high quantity of exercises." However, there was no mention of the "Pareto principle" on applicant's website, nor did the website establish the meaning of 80/20.

The Examining Attorney made of record multiple third-party websites and other Internet materials displaying 80/20 in connection with pilates instruction and training. Five of the websites were foreign-based. "Foreign websites may have probative value on the meaning of a term in the United States under certain circumstances if it is likely that ‘U.S. consumers will encounter foreign websites in the field in question.’” Here, however, the Board found the foreign websites not probative.

[W]e find that it is unlikely that U.S. consumers of pilates instruction and training services would review foreign websites to learn about and purchase such services where the record indicates that there are numerous U.S. providers of the services.

The Examining Attorney’s Internet evidence from domestic sources was not helpful. "[T]he fitness company websites do not discuss the 80/20 rule or principle in the context of pilates instruction and training, and we find that they do not establish a descriptive meaning of the term in that context, and there are different meanings of '80/20' on the websites of pilates studios or exercise studios that offer pilates."

We cannot discern a clear, consistent meaning of “80/20” in connection with pilates instruction and training from these four websites. The vague notions of “quality over quantity” discussed on the ebodypilates.com and tonal.com websites, of “doing a few things really well” discussed on the sportswestathleticclub.com website, and of “prioritizing foundational movement (80%) before layering in complexity (20%)” discussed on the glowfox.com website, do not establish an understood meaning of “80/20” that would immediately tell consumers about a feature, attribute, or characteristic of the PILATES 80/20 pilates instruction and training services that they will receive at Applicant’s studio.

The Board had doubt that the Examining Attorney "established that the proposed mark PILATES 80/20 as a whole is merely descriptive of a feature, attribute, or characteristic of the pilates instruction and training services identified in the application, requiring us to reverse the refusal to register."

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TTABlogger comment: Evidence. It's all about the evidence.

Text Copyright John L. Welch 2026.

Chicago Brothers Best San Antonio Brothers in FADED CULTURE STUDIO Barbering Services Priority Battle

2026-11-04T05:49:12.738-05:00

In an exhaustive and exhausting 76-page opinion, the Board awarded priority to applicant (Chicago) over opposer (San Antonio) in a battle over the mark FADED CULTURE STUDIO for barbering services. Opposer claimed priority based on common law rights in the mark FADED CULTURE for the same services, but its evidence fell short. "In the terms of the Federal Circuit’s puzzle metaphor in W. Fla. Seafood, there are a large number of pieces here, but they simply do not fit together to form a discernible picture of prior use of FADED CULTURE for barbering services." FVDED, LLC v. Faded Culture Studio, LLC, Opposition No. 91286343 (November 2, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

The Board first found that applicant established June 19, 2019, as its date of first use of the FADED CULTURE STUDIO mark in connection with barbering services, the date claimed in its application.

To beat that date, opposer attempted to rely on tacking, an issue that it had not raised in the pleadings, but the Board found that the issue was tried by implied consent. However, the marks that opposer relied on for tacking - FADED, FΛDED, FVDED CULTURE, FXDED CULTURE, F∀DED CULTURE, and FΛDED CULTURE - were used for clothing, not barbering services, and so they were irrelevant to the priority issue.

By definition, clothing and barbering services are not “substantially identical” and thus the use of any prior mark for clothing per se cannot be tacked onto Opposer’s current use of FADED CULTURE for barbering services to establish priority of use of FADED CULTURE for those services.

Opposer claimed that it began using the mark FADED CULTURE for barbering services in 2016, relying on the testimony of a ~~barber's~~ baker's dozen of "friends and longtime customers." However ,the testimony was inconsistent as to the date of first use of the mark, as to which mark opposer used, and as to how the mark was used.

On this record, we find that it is more likely than not that the Barron brothers were not giving “haircuts to customers using the FADED CULTURE mark,” 48 TTABVUE 7, before June 19, 2019. [emphasis supplied)

Opposer also claimed prior use of the FADED CULTURE mark on clothing. However, it had asserted a 2020 date in a trademark application, and so the Board ruled that it must provide clear and convincing evidence to go behind that date. Again, its testimony fell short.

conspicuously absent from Opposer’s evidence that the Barron brothers “gave customers haircuts using the FADED CULTURE mark” prior to June 19, 2019 are any of the normal trappings of the use of a mark for barbering services, such as the signage shown and discussed above that established Applicant’s first use of its FADED CULTURE STUDIO mark, or even the type of circumstantial evidence credited in W. Fla. Seafood as establishing prior use of a mark for restaurant services, such as the “advertisements placed in local newspapers,” regulatory licenses, and inspection reports.

And so, the Board dismissed the opposition.

Read comments and post your comment here.

TTABlogger comment: A typically thorough and instructive opinion by Judge Larkin.

Text Copyright John L. Welch 2026.

TTABlog Test: Is MIZUNARA WOODS Merely Descriptive of Engineered Hardwood Flooring?

2026-11-03T05:04:23.794-05:00

The USPTO refused to register the proposed mark MIZUNARA WOODS for “Engineered hardwood flooring featuring wooden veneer of mizunara oak sold integrally therewith" [MIZUNARA disclaimed], finding the mark to be merely descriptive of the goods. Applicant AHF argued that “the term WOODS may be used in plural to indicate a variety of ‘woods’, i.e., different types of wood, but not to indicate a plural set of pieces of the same type of wood." How do you think this appeal came out? In re AHF, LLC, Serial No. 98366353 (October 30, 2026) [not precedential] (Opinion by Judge Robert Lavache).

Examining Attorney Gillian Brown provided evidence that the term MIZUNARA refers to a variety of oak tree from Japan and the wood therefrom. AHF's identified its goods as "featuring wood veneer of mizunara oak." "Thus, there is no dispute that MIZUNARA is merely descriptive as applied to the identified goods."

As to the word WOODS, the Examining Attorney relied on dictionary definitions and encyclopedia entries that included examples of use of the plural "woods" to refer to various types of woods or a collection of woods. Third-party websites showed the term “woods” being used to refer to wood types utilized for flooring. The Board agreed with the Examining Attorney that:

in this case, both the individual components [of the proposed mark] and the composite result are descriptive of Applicant’s goods and do not create a unique, incongruous, or nondescriptive meaning in relation to the goods. Specifically, the combination of MIZUNARA and WOODS does not create a new or nondescriptive meaning. Rather, consumers will understand the composite phrase as describing a characteristic of Applicant's hardwood flooring, in that the flooring has the characteristic of being a collection of WOODS featuring MIZUNARA oak.

Applicant AHF argued that "Mizunara oak is referenced as a singular type of wood” and thus “[a] consumer will look at the [proposed mark], in its entirety, and interpret the mark to be ‘a variety or collection of different WOODS’ and then, will need to make a connection to mizunara oak in the singular and try to understand how this represents a ‘variety or collection.’” Therefore “an incongruity is present” in the proposed mark and a “consumer will certainly need a mental pause to reconcile these incongruous concepts, a hallmark of a mark being suggestive.” The Board was unimpressed, pointing to evidence that, "in the context of flooring, 'woods' is used to refer to a particular type of wood or a collection featuring a particular type of wood."

while Applicant is correct that “woods” can refer to different types of wood, as some of the evidence previously discussed shows, that is not the only potential meaning of the term when used in connection with flooring. * * * [W]e concur with the Examining Attorney’s finding that consumers viewing the proposed mark will immediately understand it as referring to a feature or characteristic of Applicant’s flooring in that the flooring contains mizunara oak woods.

The Board pooh-poohed AHF's risible argument that consumers "may recognize the term MIZUNARA as Japanese, but may consider it coined, e.g., consider it as relating to anime or video-game genres, which are highly associated with Japanese culture” and thus “MIZUNARA WOODS may be perceived as a fantasy or made up place with no connection to an actual species of oak.” The Board pointed out once again that a mark must be considered in the context of the goods, not in the abstract.

Two significant reasons for not registering merely descriptive marks are: “(1) to prevent the owner of a mark from inhibiting competition in the sale of particular goods; and (2) to maintain freedom of the public to use the language involved, thus avoiding the possibility of harassing infringement suits by the registrant against others who use the mark when advertising or describing their own products.” *** [O]ther entities in the marketplace who choose to offer these goods should be free to use MIZUNARA WOODS in advertising such goods.

And so, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: Is this a WYHA?

Text Copyright John L. Welch 2026.

TTABlog Test: Is HIBOU BLANC Confusable with THE WHITE OWL CANDLE COMPANY for Candles?

2026-11-02T05:59:42.597-05:00

The USPTO refused to register the mark HIBOU BLANC for "candles; scented candles; scented soy candles; melt tarts, namely, scented wax to be melted slowly with a warmer," deeming confusion likely with the registered mark THE WHITE OWL CANDLE COMPANY for “candles; candle contained in a clamshell; scented candles; soy candles" [CANDLE COMPANY disclaimed]. Applicant Leo G. Bressette conceded that goods are identical in-part. Examining Attorney Claudia A. Kopenski, maintained that HIBOU BLANC is French for “WHITE OWL," but Bressette argued that HIBOU "is not a common English loanword, is absent from standard English usage, and is unlikely to be recognized or translated by ordinary purchasers" and so "consumers will perceive HIBOU BLANC as a foreign-language brand name, not as the literal equivalent of 'white owl.'" How do you think this appeal came out? In re Leo G Bressette, Serial No. 99020217 (October 28, 2026) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

The Federal Circuit held in Vetements that "words from modern languages are generally translated into English," and "unless it is unlikely that the ordinary American purchaser would stop and translate the word into its English equivalent, the doctrine of foreign equivalents applies."

French is a modern foreign language spoken by more than 1.2 million Americans. Various dictionaries translate HIBOU as OWL and BLANC as WHITE. The Board concluded that an "appreciable number" of U.S. consumers would know that HIBOU BLANC translates to WHITE OWL in English.

[Note: the number of French speakers who will "stop and translate" HIBOU BLANC pales in comparison to the number of consumers who would have no clue regarding its meaning. In an infringement action, if the plaintiff showed that such a small percentage of US consumers would be confused, what do you think would be the outcome? - ed.]

The Board brushed aside Bressette's assertion that HIBOU is not a common word and would not be translated, pointing out that Bressette's argument was topsy-turvy: if HIBOU were a word commonly known in English (like croissant or fiesta), there would be no need to translate it. "[T]he threshold inquiry is not whether the non-English wording is common or present in English as a 'loanword,' but rather whether an ordinary American purchaser would stop and translate it."

Bressette cited the Palm Bay decision, which declined to translate VEUVE ROYALE when considering confusing similarity with the opposer’s mark THE WIDOW because "it [was] improbable that the average American purchaser would stop and translate 'VEUVE' into 'widow.'" 396 F.3d at 1377. The Board, however, found the cases distinguishable:

The evidence here supports a finding that an appreciable number of Americans are capable of translating the wording HIBOU BLANC into WHITE OWL in English. Contrary to Applicant’s suggestion, there is no evidence that the words in his mark are "obscure or not widely recognized" or that they would be considered "as a distinctive foreign expression rather than as a translatable phrase."

Turning to the marks, the Board unsurprisingly found that WHITE OWL is the dominant term in the cited mark. "Comparing the marks in their entireties in view of the applicable legal principles, including that a lesser degree of similarity of the marks is needed for confusion to be likely when the goods are literally or legally identical, we find that the marks are similar in connotation and overall commercial impression and the first DuPont factor favors a likelihood of confusion."

The Board found the fourth, fifth, and eighth DuPont factors to be neutral, and none of the factors favored applicant.

Read comments and post your comment here.

TTABlogger comment: Take a look at applicant's brief [pdf here]. Do you think it was a creation of AI? Do you think it matters to the Board that it had to plow through 16 pages of argument that was largely off-base?

Text Copyright John L. Welch 2026.

TTAB Posts November 2026 Hearing Schedule

2026-10-30T06:10:08.667-04:00

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

November 5, 2026 - 2 PM [Virtual]: In re Entertainment Content, Inc., Serial No. 97022351 [Refusal to register the proposed mark SPORTS.TV on the Supplemental Register, for downloadable software for accessing information about sports, news, and entertainment, internet broadcasting, and entertainment services in the fields of sports, news, and entertainment, on the ground of genericness.].

November 12, 2026 - 1 PM [In-Person]: Lara Kajajian v. Larisa Love, LLC dba Larisa Love, Cancellation No. 92071241 [Petition for cancellation of a registration for the mark LARISA LOVE for "Hair salon services" on the ground of likelihood of confusion with petitioner's common law mark LARISSA LOVE for cosmetics and personal care products.]

November 12, 2026 - 2:30 PM [Virtual]: Encyclopaedia Iranica Foundation Inc. v. Persian Heritage Foundation, Opposition No. 91245273 [Opposition to registration of the mark PERSIAN HERITAGE FOUNDATION and Design shown below left, for "Charitable foundation services, namely, providing fundraising activities, funding, scholarships and/or financial assistance for the furthering of Persian heritage and culture in academia" [PERSIAN HERITAGE FOUNDATION disclaimed] on the grounds of lack of bona fide intent and likelihood of confusion with the common mark "flower" design mark shown below right, for a variety of goods and services, including books and other printed or online publications, publication services, services consisting in promoting preservation and awareness of Iranian culture and heritage, charitable services, namely, providing fundraising activities and granting funds to support preservation and awareness of Iranian culture and heritage.]

November 19, 2026 - 11:00 AM [Virtual]: In re Granite Hoback Ranch LLC, Serial No. 98964493 [Refusal to register the mark THE HAWKEN for retail store services, resort and recreational services, resort lodging services, and health spa services, on the ground that the mark is primarily merely a surname under Section 2(e)(4).

Read comments and post your comment here.

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

Text Copyright John L. Welch 2026.

TTABlog Test: Is HARD WATER Merely Descriptive of Canned Alcoholic Beverages?

2026-10-29T06:25:53.974-04:00

The Board upheld the USPTO's refusal to register the mark BLUEBIRD HARDWATER, in standard character and logo form, for "Canned alcoholic beverages, except beer,” in view of the registered mark BLUEBIRD DISTILLING for "distilled spirits" [DISTILLING disclaimed]. The Office also required a disclaimer of HARD WATER (the proper spelling of HARDWATER) on the ground of mere descriptiveness under Section 2(e)(1). Applicant claimed that "HARDWATER" is a coined term and that the Office improperly dissected it into "HARD" and "WATER." How do you think the Board came out on the disclaimer issue? In re Bluebird Hardwater, Serial Nos. 90902279 and 97187261 (October 22, 2026 [not precedential] (Opinion by Judge Martha B. Allard).

Likelihood of Confusion: The Section 2(d) analysis was straightforward. The Board found the goods to be complementary and related and the channels of trade and classes of consumers the same. [In a concurrence, Judge Casagrande would have found the goods legally identical].

As to the strength of the cited mark, the Board plowed through applicant's voluminous evidence and painstakingly whittled it down for relevancy. It found the cited mark to be unweakened commercially by applicant's evidence of four third-party uses of BLUEBIRD-containing marks [too few], but somewhat weakened conceptually ["at worst suggestive"] by those four uses and by three third-party registrations. [Why would "BLUEBIRD" be suggestive of alcoholic products? - ed.]. And so, it deemed the sixth DuPont factor to be neutral.

As to the marks, the Board unsurprisingly found the term BLUEBIRD to be the dominant element in the marks, and then found them to be similar in sound and appearance to the extent that they all contain BLUEBIRD as the initial term. They have similar connotations and commercial impressions "due to their shared use of the literal element BLUEBIRD and their use on related goods." [They are dissimilar to the extent they contain other words - ed.]. And so, the first DuPont factor supported the refusal.

Finding that purchasers of the goods "cannot be considered to have any particular sophistication about these alcoholic beverages," the Board deemed the fourth DuPont factor to be neutral. "Because all of the DuPont factors either weigh in favor of a likelihood of confusion or are neutral, and none weigh against it, we conclude that confusion with Registrant’s mark is likely to occur."

Disclaimer Requirement: Examining Attorney Kieu-Nhi Le maintained that HARDWATER merely describes a characteristic or ingredient of applicant's goods. The evidence showed that the term “hard” is defined as “having a high concentration of alcohol." “Water” is listed as an ingredient in Applicant’s goods. Moreover, third-party website evidence established that "the phrase 'hard water' is commonly used by third parties to mean beverages composed of alcohol and water."

The record included third-party registrations for marks incorporating the term 'hard' or 'water' for alcoholic beverages containing alcohol or water, in which registrations these terms were disclaimed.

Applicant’s use of the term HARDWATER is consistent with the dictionary definition of the term HARD and with the third-party website and registration evidence . . . all of which shows that consumers will understand the compound word to mean a beverage composed of alcohol and water.

The Board brushed aside applicant's assertion that HARDWATER is a coined term. "Rather, it is a combination of two common, well-established terms that describe an alcoholic beverage containing both water and alcohol, which precisely describes the ingredients of Applicant’s identified “'Canned alcoholic beverages, except beer.'"

The dictionary definition of the term “hard” and third-party use and registration evidence of record confirm that these terms, when combined, have a common meaning in the relevant field and it requires no imagination to connect it to Applicant’s identified goods. Applicant’s combining the terms “hard” and “water,” and omitting the space between them, does not cause the combined terms to be something other than merely descriptive of the identified goods.

Furthermore, as to the "coined term" argument,"[t]he fact that Applicant may be the first or only user of a term does not render that term distinctive if . . . it has been shown to be merely descriptive of the goods identified in the application."

And so, the Board upheld the disclaimer requirement

Read comments and post your comment here.

TTABlogger comment: BLUEBIRD is registered for wine, and BLUEBIRD DAY for beer. But there's room for only one BLUEBIRD in the canned alcoholic beverage space.

Text Copyright John L. Welch 2026.

TTAB Finds "THE JONES" for a Host of Services to be Primarily Merely a Surname

2026-10-27T06:03:28.348-04:00

The Board affirmed a refusal to register the mark THE JONES for a laundry list of disparate services, including educational consulting, hotel accommodation, and beauty care [this is a Section 66(a) request for extension of protection filed by a UK company], finding the mark to be primarily merely a surname under Section 2(e)(4). Applicant argued that "[g]iven the overwhelming frequency with which consumers are accustomed to encountering marks comprised of THE and a surname, for hotel and hotel-related services, the public is most likely to perceive [THE JONES] as a source indicator for such services." The Board was not accommodating. In re Solomon & Silver Limited, Serial No. 79405252 (October 21, 2026) [not precedential] (Opinion by Judge Robert Lavache).

Examining Attorney Andrew Crowder-Schaefer relied on evidence from Ancestry.com and Wikipedia stating that JONES is the fifth most common surname in the United States. The 2010 U.S. Census data confirmed that point. "This evidence establishes that JONES is an extremely common surname in the U.S. and Applicant’s brief does not contend otherwise." Nor did applicant contest that JONES, alone, has the look and feel of a surname.

Applicant maintained, however, that the addition of the word THE to JONES makes a difference. It pointed to what it called "numerous registrations for, and widespread third-party use of, marks constructed in the form THE + [surname] in connection with the pertinent [hotel and hotel-related] services." The Board noted, however, that the file histories of those registrations were not in evidence, "and thus we do not know the examining attorneys’ reasons for approving the relevant marks for registration." In any case, the Board observed once again, each case must be decided on its own record. As to applicant's evidence:

Some of the names reflected in both the third-party registrations and the examples of use do appear to have primary significance as surnames. These include “Moore,” “Crawford,” “Pittman,” “Barnes,” “Williams,” and “Duniway.” But many of the others, including “Alexander,” “James,” “Tony,” “Thomas,” “Stanley,” and “Drake” could also be perceived as first names. Still other examples feature words that have other non-name significance, such as “Butler,” “Cooper,” and “Brown.” We therefore disagree with Applicant’s characterization of the evidence . . . ."

The Board also noted that there was no evidence as to how the public "would view any proposed mark with a similar construction that is used in connection with hotel services as something other than just a surname."

Applicant pointed to In re IMH Columbia, LLC [TTABlogged here], where the Board reversed a Section 2(e)(4) refusal of the mark THE MERRIWEATHER for hotel services, but the Board distinguished that case:

[T]he decision explicitly states that the Board’s determination was also "based on ‘Merriweather’ being a relatively uncommon surname, having several possible non-surname meanings, including a very similar, known historical first name." Here, JONES is an extremely common surname and the record contains no evidence that it has any non-surname meanings. Thus, we agree with the Examining Attorney that Applicant’s evidence of hotel names prefaced by “the” does not compel us to reach the same conclusion here as in IMH Columbia.

Merriweather Clark

Even if we were convinced that the purchasing public would view the primary significance of THE JONES as something other than a surname when used in connection with hotel services, Applicant seeks registration of more than just hotel services. Indeed, the application identifies other services in International Class 43, as well as various services in International Classes 41 and 44.24 And, as the Examining Attorney points out, there is no evidence of record to support a finding that the addition of “THE” lends the proposed mark non-surname significance when used in connection with any of the identified non-hotel services in Classes 41, 43, and 44.

And so, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: What if the applicant files a new application for THE JONES for hotel services?

Text Copyright John L. Welch 2026.

TTAB Refuses to Vacate Prior Decision Despite Stipulated Dismissal of Section 1071(b) Civil Action for Review

2026-10-26T06:25:19.362-04:00

The Board denied a joint motion to vacate its July 25, 2025 decision in M Halyard, Inc. v. Guidepoint Global, LLC [pdf here] under FRCP 60(b). Observing that relief from judgment is "an extraordinary remedy to be granted in the court’s discretion only in exceptional circumstances," the Board concluded that "the public interest is substantial in protecting the integrity of the federal trademark register and cancelling Petitioner’s invalid trademark registrations." O&M Halyard, Inc. v. Guidepoint Global, LLC, Cancellation Nos. 92077680 (parent) and 92078922 (October 20, 2026) [not precedential].

The Board had ordered cancellation of two registrations owned by Petitioner Halyard on the ground of nonownership, after full trial, briefing, and an oral hearing. Halyard sought review by way of civil action under Section 1071(b) [in the E.D. Va.], and then entered into a joint stipulation with Respondent Guidepoint, leading to a dismissal with prejudice of all claims and counterclaims asserted in the civil action

The parties claimed that "[t]he district court’s dismissal with prejudice of the de novo review of this case renders the underlying TTAB proceeding moot" and so "the Board’s Final Decision is properly vacated pursuant to Rule 60(b)." However, the Supreme Court held in U.S. Bancorp, in the context of a review under 28 U.S.C. § 2106, that “mootness by reason of settlement does not justify vacatur of a judgment under review” absent “exceptional circumstances." "To allow a party who steps off the statutory path to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment would -- quite apart from any considerations of fairness to the parties -- disturb the orderly operation of the federal judicial system." Id. The Board concluded that "[t]he same reasoning holds true for Board proceedings, and the prescribed routes of appeal for final decisions."

Based on Petitioner’s own documents and testimony, the Board found that "on the filing date of the applications underlying Petitioner’s Registration Nos. 5739878 and 6357539, Petitioner did not own the mark QSIGHT, and as such Petitioner’s underlying applications are void ab initio and the resulting registrations are invalid. Respondent’s agreement otherwise does not alter this evidence, no new evidence has been identified or adjudged that changes this determination, and accordingly there is no basis to vacate this holding."

[T]he Joint Stipulation entered by the district court does not reference any new evidence, make any findings based on the district court’s de novo review of any evidence, and also does not “adjudge” anything regarding either of the party’s registrations, or the issues decided in the Final Decision. * * * In entering the Joint Stipulation, the district court also did not remand the case to the Board to consider vacatur, it only dismissed all claims with prejudice.

The Board ruled, in accord with U.S. Bancorp, that "settlement alone does not justify vacatur and the parties do not identify any 'exceptional circumstances' that would warrant vacating the Final Decision."

Even accepting the parties’ representation that “[a]s part of th[e] resolution [of the civil action], [Respondent] agreed that Petitioner is the owner of Registration Nos. 5739878 and 6357539,” does not provide a basis to vacate the Final Decision. As discussed in the Final Decision, the Federal Circuit recognizes, “registration by one who did not own the mark at the time of filing renders the underlying application void ab initio.”

The parties argued that vacating the decision would not harm the public interest because the decision was not precedential, and the dismissal with prejudice of the civil action “support[s] the public’s interest in preclusion and putting an end to years-long litigation between these parties.” They also claimed that “neither party will suffer hardship from the vacatur of the Final Decision, as the parties will co-exist in the market, cover their own costs of the litigation, and abstain from further litigation.” The Board was unmoved.

[T]he parties’ arguments overlook a key public interest. Cancellations, like “[o]ppositions[,] protect the public interest in the integrity of the federal trademark register by providing a means to consider and decide the right to registration, a matter of public interest.”

Concluding that "[N]one of the interests articulated by the parties outweigh this substantial public interest," the Board denied the motion to vacate.

Read comments and post your comment here.

TTABlogger comment: The Board noted that "[i]f Petitioner is the current owner of the marks, then Petitioner has the right, of course, to file new applications identifying itself as the owner."

Text Copyright John L. Welch 2026.

TTAB Enters Summary Judgment Dismissing EMPOWER Monogram Opposition: First DuPont Factor Dispositive

2026-10-23T05:54:34.200-04:00

Opposer Inmode alleged that the "monogram" mark shown below is confusingly similar to its registered, standard character marks EMPOWERRF and EMPOWERRF BY INMODE, all for skin care treatment services. The Board granted Applicant Empower Aesthetics' motion for summary judgment and dismissed Inmode's Section 2(d) claim, finding the first DuPont factor to be dispositive. Inmode Ltd. v. Empower Aesthetics LLC, Opposition No. 91299827 (October 26, 2026) [not precedential].

In its application, Empower Aesthetics described its mark as consisting of “a monogram of the word ‘EMPOWER’ such that, in the monogram, a first letter ‘E’ is shown on the left side facing inward, a second letter ‘E’ is shown on the right side facing inward, a letter ‘R’ is shown inside of the first letter ‘E’, a letter ‘P’ is shown inside of the second letter ‘E’ facing inward and the letters ‘O’, ‘W’ and ‘M’ are shown on top of one other and in the center of the monogram.”

Opposer Inmode maintained that applicant’s characterization of the mark as “a monogram of the word ‘EMPOWER’” was an admission that the mark is a “stylized version of the word 'EMPOWER'" and therefore the “literal element of Applicant’s EMPOWER & Design Mark is identical to the dominant portion of" Opposer’s marks.

Empower Aesthetics responded that focusing on the description of the mark, instead of the drawing of the mark, is improper. The Board agreed: “A drawing depicts the mark sought to be registered.”

Here, while Applicant may have intended that its mark be made up of an arrangement or “monogram” of the constituent letters of the word “EMPOWER,” the arrangement of geometric shapes that make up the mark is so highly stylized and arranged so as to form what appears to be a portal-like configuration devoid of any literal component. Our determination of a mark’s likely connotation and commercial impression are based on the perspective of the consuming public, not an applicant’s intention.

The Board observed that "consumers will be unaware of Applicant’s description of its mark when encountering it in the marketplace."

[C]onsumers are highly unlikely to perceive Applicant’s mark as stylized wording, but instead may only perceive a stylized design with somewhat symmetrical arrangement of geometric shapes, some of which may resemble letters. Even if an average consumer recognized one or more letters in this drawing, it is highly unlikely that the average consumer could reorient and rearrange those letters to form the word “EMPOWER.” * * * Indeed, even knowing that the design is intended to contain the letters “E-M-P-O-W-E-R,” it is very difficult to parse the design and identify those letters, let alone place them in the order Applicant describes in the application.

In short, the Board found the marks to be "strikingly different in all aspects," and so it granted the motion for summary judgment.

Read comments and post your comment here.

TTABlogger comment: WYHO?

Text Copyright John L. Welch 2026.

TTABlog Test: Is this Word+Design Mark, with BLOCKOUT Disclaimed, Inherently Distinctive?

2026-10-22T06:11:34.521-04:00

The USPTO refused to register the proposed composite mark shown below, for light-blocking plastic films and labels [BLOCKOUT disclaimed], finding the mark to be merely descriptive of the goods under Section 2(e)(1). With the literal portion disclaimed, the question "revolves around the other elements in the proposed mark and whether they render the mark inherently distinctive as a whole." The Examining Attorney argued that the background is a "basic design." Applicant argued that "[t]he interplay between the inner filled rectangle containing BLOCK, the absence of any rectangle around OUT, and the contrasting use of positive and negative space creates a cohesive design that communicates meaning beyond the literal wording." How do you think this appeal came out? In re Brook & Whittle Limited, Serial No. 98590492 [not precedential] (Opinion by Judge Jennifer L. Elgin).

The Board noted that Applicant did not make a claim of acquired distinctiveness, and therefore the stylization of BLOCKOUT and the design must create a separate and inherently distinctive impression. The Examining Attorney acknowledged that if descriptive or generic wording is presented in a distinctive display or design, the mark as a whole may be registered with a disclaimer of the unregistrable component. See In re Sadoru Grp., Ltd. [TTABlogged here].

The Board found that the proposed mark "can be seen as more than mere non-stylized text superimposed on a geometric background design."

Arguably, the differently colored rectangle and contrasting superimposed text create a commercial impression separate and apart from the disclaimed wording. The concept of positive and negative space is apparent in the mark and would remain so even when rendered in colors other than black and white. The placement of the word BLOCK within the rectangle (i.e., a block) can evoke the act of blocking light. The rectangular design is more than a mere background carrier for the contrasting superimposed block text.

The Examining Attorney's evidence showed that both the wording BLOCKOUT and the light-blocking function of the goods are described in the trade. "But that evidence bears on the descriptiveness of the wording, which Applicant has conceded through its disclaimer; it does not establish that the design and stylization immediately convey the light-blocking characteristic of the goods."

To the contrary, discerning the interplay of positive and negative space, and connecting that visual treatment of the design and text to the light-blocking nature of the films and labels, arguably requires imagination, thought, and perception on the part of someone who knows what the goods are to reach a conclusion about their nature, even when combined with the disclaimed matter. * * * Reasonable minds can differ on the distinctiveness of the design and the question of whether the mark as a whole is merely descriptive of the goods in the application. We have doubt about that question and resolve that doubt in favor of Applicant.

And so, the Board reversed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: I don't get it. Compare this decision to the SERIAL decision [TTABlogged here], in which the Board found that the two composite marks shown below [with SERIAL disclaimed] were not inherently distinctive.

Text Copyright John L. Welch 2026.

TTAB Deems TALKIE Confusable with TALKIE.AI & Design for Chatbot Software, Rejecting Crowded Field Argument

2026-10-21T05:49:44.385-04:00

The Board affirmed a refusal to register the mark TALKIE for, inter alia, "downloadable computer chatbot software for simulating conversations in the field of entertainment, education, creative writing, role-playing, and personal companionship," concluding that confusion is likely with the registered mark shown below, for, inter alia, "downloadable computer chatbot and bot software for simulating conversation." Applicant Subsup pointed to the four other registrations cited in the final refusal, but the Board found them insufficient to show a "crowded field" of TALKIE-formative marks. In re Subsup Pte. Ltd., Serial No. 98680779 (October 19, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

Subsup argued that the entire identification of goods in the cited registration, "read as a whole, is lengthy and heavily oriented toward specialized AI and communications-processing functionalities, including extensive interaction and healthcare-focused features alongside other technical components," and is distinguishable from Subsup's "non-medical, AI chatbot software and related software offerings under TALKIE versus the registrant’s broad, specialized, and differently framed suite of goods under TALKIE.AI."

Examining Attorney Mitchell Knief maintained that the particular goods identified in the cited registration as "downloadable computer chatbot and bot software for simulating conversation" are broad enough to encompass applicant's more limited software. The Board agreed: "These goods are legally identical, and the second DuPont factor strongly supports a conclusion that confusion is likely." Furthermore, the Board must presume that these identical goods travel in the same channels of trade to the same classes of consumers.

Turning to a comparison of the marks, the Board noted that "[w]hen a mark comprises both words and a design, the words are normally accorded greater weight because they are more likely to be impressed upon a purchaser’s memory and would typically be used by purchasers to request the goods or services." And so, the Board gave greater weight to the literal element than the design element of the mark. Furthermore, the Board observed that since the mark at issue is in standard character form, it could be depicted in the same font style and size as the word TALKIE in the cited mark

The marks are similar in sound because the TALKIE element of each mark will sound identical. The marks are "quite similar" in connotation and commercial impression because TALKIE suggests “‘talking’ or ‘chatting,’ a commonplace concept in software used for conversation, messaging, and chatbot interaction.” The design element reinforces the idea of “talking” or “chatting,” and the .AI suffix in the cited mark "identifies one party to the conversation."

And so, the first DuPont factor "strongly supports" a conclusion that confusion is likely.

As to customer care, there was "nothing in the record to show that the least sophisticated potential purchaser of Applicant’s downloadable software is likely to exercise anything more than ordinary care," and so the fourth DuPont factor was neutral.

Subsup argued that TALKIE is conceptually weak, pointing to the TALKIE-related registrations cited by the Examining Attorney in the final refusal, and asserting that “the shared TALKIE/TALK element should be afforded a narrower scope in the overall Section 2(d) analysis ....” The Board pointed out that the cited registration issued on the Principal Register without a requirement of a showing of acquired distinctiveness, and so "we presume that it is inherently distinctive, i.e., that it is at worst suggestive of the goods." Nonetheless, common use of a term may indicate that the mark or common element has some conceptual weakness.

Applicant has pointed to no TALKIE-formative registrations in the record beyond the three cited registrations owned by the same entity and the fourth cited registration owned by a different entity. Even if we consider the four other cited registrations, reflecting only two additional source entities, to be “third-party registrations” vis-à-vis the mark shown in the ’449 Registration, “two sources are not enough to show dilution of a mark, nor [do] they show that there is a ‘crowded field’ of sources utilizing these similar terms.”

Finding that the first, second, and third DuPont factors supported the refusal and none weighed against it, the Board affirmed.

Read comments and post your comment here.

TTABlogger comment: There were three third-party owners in the supposed "crowded field" (including the registrant). If applicant had added a word to TALKIE, would that have avoided the refual?

Text Copyright John L. Welch 2026.

TTAB Finds "PERMANENT JEWELRY WELDER" Merely Descriptive of . . . Guess What?

2026-10-20T06:05:13.683-04:00

The Board upheld a Section 2(e)(1) refusal to register the proposed mark PERMANENT JEWELRY WELDER, finding it to be merely descriptive of electric welding machines and welding education services. Applicant Sunstone argued that the mark is at most suggestive since permanent jewelry is a relatively new product, and unsophisticated consumers will not understand how welding, commonly understood as “a dangerous industrial process, involving high heat, bright flashes of light, and providing significant personal risk of bu[rn] injuries,” relates to formation of jewelry." The Board was unimpressed. In re Sunstone Engineering LLC, Serial No. 98088456 (October 16, 2026) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

The Board pointed out that the proposed mark must be considered in the context of the goods and services, not in the abstract. "Here, the relevant consumers include prospective purchasers of electric welding machines, including machines used to affix permanent jewelry, and persons seeking instruction about the operation and maintenance of those machines, such as people who already have or would like to start a permanent jewelry business."

Sunstone conceded that its goods and services relate to "welders." Examining Attorney Kim Teresa Moninghoff submitted evidence that "permanent jewelry" refers to a "piece [of jewelry] (usually a necklace or bracelet) that’s welded together instead of secured with a clasp." She also provided third-party use-based registrations for goods or services relating to “jewelry” or “permanent jewelry” in which the term PERMANENT JEWELRY was disclaimed. Notably, the USPTO’s Acceptable Identification of Goods and Services Manual (2025) contains entries for repair or welding services for “permanent jewelry."

As to the proposed mark in its entirety, the evidence showed descriptive use of the wording PERMANENT JEWELRY WELDER in the marketplace: including articles, product listings, and websites. Applicant's own advertising used “Permanent Jewelry Welder” in a descriptive, if not generic, manner: "The World's Bestselling Permanent Jewelry Welder" and "“Professional permanent jewelry welder, built by Sunstone."

The Board therefore found that "the proposed mark PERMANENT JEWELRY WELDER describes a function, purpose or use of Applicant’s goods, that they are used to weld permanent jewelry."

To the average consumer familiar with the goods and services, which include “electric welding machines” and “education services, namely, providing educational seminars, lectures, presentations, workshops, and non-downloadable videos in the field of the operation and maintenance of an electric welder,” PERMANENT JEWELRY WELDER immediately conveys information about the goods and services, that they are or relate to welders for affixing permanent jewelry. Indeed, as noted by the Examining Attorney, the combination of “PERMANENT JEWELRY” and “WELDER” communicates to potential consumers that, as opposed to industrial welders, Applicant’s goods are appropriate for affixing jewelry, and its services relate to using welders for this purpose.

The Board did not find the proposed mark to be incongruous or to require imagination or a mental pause to convey information about the goods and services. "When the words PERMANENT JEWELRY and WELDER are combined to form the composite PERMANENT JEWELRY WELDER, they retain their original meanings as referring to features of the goods and services, which are or relate to welders for affixing permanent jewelry."

Applicant’s other arguments are also unavailing. It is of no moment that PERMANENT JEWELRY WELDER “does not appear in any pre-application dictionary, trade publication, or industry glossary as a recognized category name.” See In re Dahlquist, Inc., 1976 TTAB LEXIS 79, at *6.

Applicant asserted that the cited third-party uses are “knock offs” of Applicant’s product, but even if true, "this does not change the fact that the proposed mark is merely descriptive of a function, characteristic or purpose of the goods and services."

The fact that Applicant may be the first or only user of a term does not render the term distinctive if, as here, it has been shown to be merely descriptive of the goods identified in the application.” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 122 (2004) (trademark law does not countenance someone obtaining “a complete monopoly on use of a descriptive term simply by grabbing it first” and thereby “depriv[ing] commercial speakers of the ordinary utility of descriptive words”)

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TTABlogger comment: WYHA? The final office action included a "genericness advisory," but mere descriptiveness was the only issue on appeal.

TTABlog Test: Is HIGHROAD PAVEMENT SERVICES Confusable with BUILDING THE HIGH ROAD for Road Construction Services?

2026-10-19T06:25:43.238-04:00

The USPTO refused to register the mark HIGHROAD PAVEMENT SERVICES, in the word-and-design form shown below, for "road paving" and other construction services, such as "concrete paving, site clearing, excavation, … grading, and asphalt paving" [PACEMENT SERVICES disclaimed], deeming confusion likely with the registered mark BUILDING THE HIGH ROAD for, inter alia, "road construction” services. The services are "identical," but what about the marks? How do you think this came out? In re HighRoad Services, LLC., Serial No. 98586837 (October 16, 2026) [not precedential] (Opinion by Judge Thomas. W. Wellington).

Applicant argued that “Registrant is a general contractor for land developers, and a private landscape designer serving private homeowners” and that “Applicant, on the other hand, is not a general contractor, and does not specialize in landscape design." Irrelevant, said the Board (unsurprisingly): "Applicant may not restrict the scope of the services covered in the application or the cited registration by argument or extrinsic evidence." The Board must presume that the identical services are offered in the same trade channels to the same classes of consumers. And so, the second and third DuPont factors "strongly" supported the refusal.

As to the marks, applicant's mark is dominated by the word HIGHROAD. The stylized H design at the top of the mark "helps emphasize the term HIGHROAD; this portion of the mark is stylized such that the parallel side lines of the 'H' converge much like a highway that runs to the horizon and, as a result, reinforce the road construction nature of the services offered."

We also keep in mind that when marks have clearly dominant elements, such is the case here with HIGHROAD in Applicant’s mark, there is a “penchant of consumers to shorten marks” and, when calling for the services, “it is reasonable that such a practice would lead many consumers to drop the highly descriptive/generic term[s]” in marks.

The cited mark is "strongly suggestive of Registrant’s 'road construction' services, and is a possible double entendre, "based on the multiple meanings of the term 'high road,' which include: 'highway' or 'the easiest course' or 'an ethical course.'" In any case, "the wording HIGH ROAD plays a strong role in the mark’s overall commercial impression and meaning."

The Board found the marks to be "very similar visually and aurally based on the shared term HIGHROAD or HIGH ROAD." [Visually? - ed.]. Moreover, "the possible figurative meaning that consumers may perceive in the registered mark is also present in Applicant’s mark. That is, consumers encountering Applicant’s mark, may also understand the highly visible and dominant term HIGHROAD as alluding to an easier or ethical course, or literally as suggesting a highway that may be in need of Applicant’s pavement services." And so the Board found that "the marks are overall very similar and this DuPont factor weighs in favor of a conclusion that confusion is likely."

Applicant argued that the cited mark is weak because it evokes the idiom of ‘taking the high road,’ suggesting an honorable or correct course of action. The Board disagreed: "We find no weakness here based on use of the idiom as there is no evidence of third-party use of marks projecting the same double entendre in connection with road construction or road pavement services." Moreover, "this suggestive connotation actually brings the marks closer in terms of similarity."

Applicant also pointed to two third-party registrations (HIGH ROAD HOMES for “custom construction of homes” and WE DON’T JUST TAKE THE HIGH ROAD, WE BUILD THEM for “consulting services in the field of soil erosion control") and five third-party websites. The Board pooh-poohed that evidence because the registrations and websites concerned unrelated services, such as home construction, home repair, or soil erosion services.

However, the Board found that, "based on the plain or literal meaning of the cited mark, BUILDING THE HIGH ROAD, it is suggestive of Registrant’s road construction services and thus bears some inherent weakness." The Board concluded that the sixth DuPont factor "weighs slightly against a finding that confusion is likely in our analysis."

As to consumer sophistication, the Board agreed with applicant that road construction and road paving services will generally be offered to larger companies or involve government contracts, but these services may also be offered to smaller entities, "including individuals interested in having private roads built, such as driveways."

[I]n the absence of restrictions in the identifications or evidence to the contrary, we must conclude that the least sophisticated purchasers here will not exercise anything other than ordinary care in selecting the services. Moreover, even sophisticated purchasers are not immune from source confusion, especially where, as here, the services are legally identical in part and would be offered under similar marks. * * * Accordingly, we find the fourth DuPont factor to be neutral in our analysis.

In sum, the first, second, and third DuPont factors "strongly" supported the conclusion that confusion is likely, and outweighed the finding that the cited mark bears some inherent weakness under the sixth DuPont factor. The remaining factors for which there was evidence were neutral. And so, the Board affirmed the refusal.

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TTABlogger comment: What do you think?

TTAB Remands RAPUNZEL Application to the Examining Attorney for Re-Consideration of the Registrability of RAPUNZEL for Dolls

2026-10-16T06:41:04.253-04:00

On April 14, 2026, the Supreme Court denied Professor Rebecca Curtin's petition for a writ of certiorari seeking review of the CAFC's decision that, as a mere consumer, she lacked entitlement to bring an opposition to registration of the mark RAPUNZEL for dolls. [TTABlogged here]. The TTAB has just issued an order stating that it would terminate the opposition "in due course;" but meanwhile it ordered that the application be "remanded to the Trademark Examining Attorney for further examination to consider the registrability of RAPUNZEL." Curtin v. United Trademark Holdings, Inc., Opposition No. 91241083 (October 14, 2026) [not precedential].

The Board observed that "the registrability (or not) of the mark at issue remains before the USPTO." [How so? It's been examined and published. How does the issue remain before the USPTO? - ed.]. Moreover, "[e]ven if an opposition is dismissed, an application must be 'entitled to registration' in order to register. Trademark Act Section 13(b), 15 U.S.C. § 1063(b)."

The CAFC, in its May 22, 2025 decision denying standing [TTABlogged here], explained:

“Unless registration is successfully opposed,” the USPTO shall register the trademark if it is “entitled to registration,” issue a certificate of registration, and publish a notice of registration in the Official Gazette. 15 U.S.C. § 1063(b); see Heritage All. v. Am. Pol'y Roundtable, 133 F.4th 1063, 1071 (Fed. Cir. 2025) (“The opposition provision of the Lanham Act says that registration generally follows when an opposition, if any, fails, but the stated precondition is that the mark at issue be a ‘mark entitled to registration,’ 15 U.S.C. § 1063(b), which might allow the PTO, after an opposition fails, to reconsider the examiner’s pre-opposition allowance.”). Curtin, 137 F.4th 1359, 1362 (emphasis supplied); see also TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 706.01 (May 2026) (explaining that the Office may “issue a new refusal” to the registration of the mark if “it is necessary to do so to prevent the issuance of a registration that would violate the Trademark Act.”).

The Board looked to Trademark Rule 2.131, which provides that the Board may remand an application if, “during an inter partes proceeding involving an application under section 1 or 44 of the Act, facts are disclosed which appear to render the mark unregistrable, but such matter has not been tried under the pleadings as filed by the parties.” 37 C.F.R. § 2.131. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 515 (June 2026) and cases cited therein." The Board found that Rule 2.131 applies here:

First, the facts disclosed during these proceedings, including in connection with the parties’ summary judgment briefing and the evidence presented at trial, see 27-28 TTABVUE; 43-44 TTABVUE; 53 TTABVUE, appear to render the mark unregistrable. Second, the claims asserted in Opposer’s operative pleading were not tried in view of the Board’s determination on entitlement to a statutory cause of action. See 14 TTABVUE ¶¶ 8, 14 (asserting claims under Section 2(e)(1) for mere descriptiveness and under Sections 1, 2, and 45 for genericness); see also In re United Trademark Holdings, Inc., 2017 WL 2876825 (TTAB 2017) (denying the registration of LITTLE MERMAID as merely descriptive for use with dolls) (precedential) [TTABlogged here]. (emphasis supplied)

And so, the application was remanded to the Trademark Examining Attorney for further examination to consider the registrability of RAPUNZEL. See Trademark Rule 2.131, 37 C.F.R. § 2.131.

The Board noted that, if the Examining Attorney finally refuses registration, an appeal may be taken as provided by Trademark Rules 2.141 and 2.142, 37 C.F.R. §§ 2.141 and 2.142.

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TTABlogger comment: What happens if the examining attorney does not refuse registration? Will the application be published for opposition for the second time, even though the same application was already published once? BTW: Hat tip to Professor Curtin: although she lacked statutory standing, the evidence she submitted during the proceeding may yield the result she wanted anyway.

TTAB Orders Cancellation of "THE REMNANT" Registration for Religious Services Despite Weakness of Petitioner's Identical Common Law Mark

2026-10-15T06:12:58.921-04:00

The Board granted a petition for cancellation of a registration for the mark THE REMNANT for "religious and spiritual services, namely, providing gatherings to develop and enhance the spiritual lives of men," concluding that confusion is likely with petitioner's identical, common law mark for printed newspapers and the provision of online information, commentary and news services in the field of or pertaining to Catholicism. Petitioner had no trouble proving priority, and the marks are identical. What about the services? And how weak is "remnant" for religious-type services? The Remnant, Inc. v. New Life Worship Center, Inc., Cancellation No. 92085610 (September 28, 2026) [not precedential] (Opinion by Judge Thomas. W. Wellington).

Petitioner relied on only two marks, THE REMANT and REMNANT TV, and claimed to own a "family" of marks. However, the evidence did not show that those two marks were promoted in a manner that would cause consumers to recognize REMNANT as a common source-identifying element. [Turns out, it didn't need the "family" anyway - ed.]

The Board focused on petitioner's mark THE REMNANT. The fact that the two marks at issue are identical weighed "heavily" in petitioner's favor.

As to the services, third-party use evidence demonstrated that "it is common for religious organizations to offer, under the same mark, the same services as Respondent as well as the same or very similar goods and services to those of Petitioner." "The parties adopted the term due to its biblical significance and as a show of faith, and so too apparently have several other religious organizations." "The record before us demonstrates that the term REMNANT is not only conceptually weak but also has some commercial weakness."

Respondent relied on petitioner's admission that it was unaware of any instances of actual confusion between the parties’ marks, arguing that "[a] Catholic newspaper and a Protestant men’s spiritual gathering are not self-evidently related." The Board pointed out, however, that respondent’s broadly worded identification "does not limit its gatherings to any particular denomination." And so, it considered respondent's identification as encompassing religious and spiritual gatherings directed to men of any denomination, including Catholic men.

According to Respondent, its services are offered to “members resid[ing] in Rhode Island, Connecticut, and Massachusetts” and it “has no plans to expand beyond New England.” Thus, respondent essentially acknowledged that there has not been a “meaningful opportunity for actual confusion” during the few years of concurrent use of the parties’ marks.

In sum, the evidence establishes an absence of known actual confusion. However, because the parties’ actual concurrent use has been geographically limited and relatively brief, the record does not establish a meaningful opportunity for confusion to have occurred. We therefore treat both the seventh and eighth factors as neutral.

The parties are using an identical mark, and that weighed heavily in favor of a likelihood of confusion. The parties’ goods and services are "closely related," and the trade channels and classes of consumers overlap. "These factors outweigh our finding that the term REMNANT is conceptually weak and has some commercial weakness in connection with religious goods and services."

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TTABlogger comment: Did respondent have a prayer of winning?

TTAB Dismiss AURI Supplements Opposition, Finding the Goods Unrelated to Agricultural Services and Rejecting Actual Confusion Evidence

2026-10-14T05:56:37.595-04:00

In a 78-page decision, the Board dismissed an opposition to registration of the mark AURI for "nutritional supplements in the form of gummies," concluding that confusion is unlikely with the two composite marks shown immediately below, for research, consultation, education, and various related services in the field of agriculture. The Board found that opposer failed to prove the relatedness of the involved goods and services, nor any overlap in channels of trade or classes of consumers. The Board analyzed in detail opposer's evidence of actual confusion (a substantial number of misdirected voice mails and emails) and found it of little probative value. This blog post will attempt to hit the high points. Agricultural Utilization Research Institute v. Ejec Ventures, LLC, Opposition No. 91292154 (October 8, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

The Marks: The Board found the term "auri" to be the dominant element in Opposer's marks: "the word 'auri' in stylized lowercase letters is '[d]isplayed in a large, bold typeface' and, to varying degrees, comprises the largest literal portion of the mark[s] in terms of size, position, and emphasis. It is also the first term in the mark[s], further establishing its prominence."

As to appearance, the Board observed that applicant's standard character mark could be displayed in a lower case form like that used by registrant. [And see applicant's specimen of use, below]. As to sound, for both of the cited marks, "the marks would sound similar because the word 'auri' is the first thing heard when Opposer’s mark is verbalized and the only thing heard when Applicant’s mark is verbalized."

As to connotation and commercial impression, a consumer "could readily understand Applicant’s mark to be the acronym auri, and the word auri, in Opposer’s marks." And so, the Board found the marks to be similar in connotation and commercial impression.

Therefore, the first DuPont factor favored opposer.

The Goods/Services: On the issue of relatedness, Opposer submitted a single registration that covered both supplements and scientific research, which the Board found of limited probative value. Opposer's testimony that opposer "has provided services to several clients in the mushroom area" was vague and unsubstantiated. [Where is the "mushroom area" anyway? - ed.] The Board found that "Opposer’s services and Applicant’s goods are unrelated, and the second DuPont factor strongly supports a conclusion that confusion is not likely ...."

There was no evidence that opposer’s services "are rendered through any of the actual current and potential channels of trade in which nutritional supplements in the form of gummies are sold to consumers." Nor did the evidence show "the similarity of the consumers of nutritional supplements in the form of gummies and the consumers of the services identified in the ’975 and ’051 Registrations."

Nutritional supplements in the form of gummies are sold to individual consumers, while the services identified in the ’975 and ’051 Registrations are rendered to what Opposer’s website describes variously as “[l]eading agricultural institutions,” “businesses, farmers and entrepreneurs,” “[a]gricultural processors,” and “[f]ood and beverage entrepreneurs,” among other institutional clients. [Don't farmers take supplements? - ed.].

Purchaser Care: The Board found that "the least sophisticated potential purchaser of Opposer’s services is likely to exercise at least some degree of care in purchasing them, and that the least sophisticated potential purchaser of nutritional supplements in the form of gummies is also likely to exercise “at least a moderate degree of consumer care when purchasing [such] dietary supplements." The Board found the fourth DuPont factor to be neutral. [Seems like it favored Applicant - ed.]

Actual Confusion: Opposer pointed to 102 instances of purported actual confusion (emails and calls that it received). Many of the emails were from protective re-sellers and business partners, mostly "generic 'form' emails that could be sent to any company regarding resale of any product, and none of them refers to nutritional supplements in the form of gummies sold by Applicant."

They are all solicitations offering services rather than customer emails. The Board has long recognized that persuasive evidence of actual confusion must show confusion as to source or sponsorship, not mere carelessness in attempts to contact a business. *** [B]ut even assuming that the senders were only trying to reach Applicant to purchase nutritional supplements in the form of gummies for resale, we find on this record that it is more likely than not that they reached Opposer because they searched the Internet using “Auri,” or a search term containing “Auri,” and selected Opposer’s website at its auri.org address rather than Applicant’s website at the less intuitive tryauri.com address.

The Board next considered four emails from consumers, and was likewise unimpressed. "We again find that it is more likely than not that the four consumer senders of emails to Opposer reached Opposer because they searched the Internet for 'Auri' and selected Opposer’s website at auri.org." Opposer did not attempt to reach any of these consumers to find out why and how they contacted Opposer: "without direct testimony from the supposedly confused individuals . . . there is insufficient evidence to ascertain what they were thinking, or whether they were actually confused."

We cannot infer that the consumers reached Opposer because they believed Opposer to be the source of the products that they had purchased rather than because they were careless in trying to find Applicant’s email address on the Internet.

Finally, the Board considered ten or so telephone voicemail messages and call summaries. "There is again no doubt that the callers were trying to call Applicant, but we are again confronted with the issue of why they called Opposer instead."

The number of misdirected emails and calls here is substantial, but in this context quantity does not have a quality all its own. On this record, the contacts are at least equally consistent with inattention and carelessness on the part of the senders and callers in using the Internet to locate Applicant as they are with the actual mistaken belief that Opposer sells Applicant’s gummies

The Board found that this evidence had limited probative value and did not support a finding of actual confusion. The seventh DuPont factor was deemed neutral.

Conclusion: The Board concluded that, although the marks are similar, "confusion is unlikely because the parties’ respective goods and services have not been shown to be related, and they are not offered through overlapping channels of trade to overlapping consumers." The second and third DuPont factors outweighed the first factor.

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TTABlogger comment: Misdirected phone calls and messages seem inevitable in the Internet age. If the "confused" consumers aren't asked to explain the circumstances, how can you present probative evidence of confusion as to source?

TTABlog Test: Is TRU SUPPORT COMFORT YOU CAN FEEL for Clothing Confusable with TRUSUPPORT for Bras?

2026-10-13T06:23:40.740-04:00

The USPTO refused to register the mark TRU SUPPORT COMFORT YOU CAN FEEL for footwear and clothing, including footwear, jackets, pants, t-shirts, sweatshirts, dresses, and hosiery, concluding that confusion is likely with the registered mark TRUSUPPORT for "bras." The goods are different, the marks are different, and the cited mark has "some conceptual weakness." How do you think this appeal came out? In re Columbia Insurance Company, Serial No. 98848901 (October 7, 2026) [not precedential] (Opinion by Judge Jessica B. Bradley).

The Board began by considering the strength of the cited mark. Applicant argued that the term TRUSUPPORT is entitled to only a narrow scope of protection in light of "widespread use and registration of ‘TRU’-formative trademarks in connection with bras,” and given that “the term ‘SUPPORT’ is descriptive of a key feature of bras and is routinely disclaimed in registrations covering bras." However, Applicant did not submit any evidence of marketplace use, and therefore the Board declined to considerer the commercial strength of TRUSUPPORT.

As for conceptual strength, five third-party registrations for bras, with the word "support" disclaimed, together with a definition of “support” (“something that holds up or serves as a foundation or prop), led the Board to find that the term “support” in the cited mark "has some conceptual weakness in relation to Registrant’s bras."

Turning to the marks, the Board agreed with Examining Attorney Heather Kennedy that TRU SUPPORT is the dominant element in applicant's mark. The addition of “Comfort You Can Feel” "reinforces the message of physical support conveyed by the Cited Mark TRUSUPPORT." Furthermore, applicant could display its mark in a way that prominently emphasizes the term TRU SUPPORT.

[C]onsumers are accustomed to seeing messaging of “support” and “comfort” together both in relation to Applicant’s goods and Registrant’s goods which reinforces the overall similarity in meaning and commercial impression. As such consumers are likely to view “Comfort You Can Feel” as merely an additional informational or laudatory slogan added to the Cited Mark rather than as a distinguishing element.

The Board concluded that "[a]pplicant’s addition of the phrase 'Comfort You Can Feel' to Registrant’s mark TRUSUPPORT “do[es] little to alleviate confusion."

Applicant pointed to two prior Board decisions that found identical or nearly identical marks not confusable - CROSSOVER/CROSS-OVER for sportswear and bras, and PLAYERS for shoes and underwear - but the Board was unmoved, distinguishing them on the facts and observing once again that each case must be decided on its own record.

[T]he evidence in this case shows that the current retail environment for clothing and bras has changed since the time the Board decided these cases -- in particular given the advent of widespread internet shopping -- and the record here demonstrates the similarity of the goods, trade channels and consumers.

Evidence of 20 third-party registrations supported the relatedness of the involved goods, along with ten third-party websites that offer one or more of the articles of clothing included in Applicant’s identification of goods, under the same mark as bras. The Board agreed with the examining attorney that:

"the evidence clearly establishes that both bras and other clothing items, including applicant’s tops, bottoms, dresses, coats, hosiery, and footwear, are commonly produced by the same manufacturer, and are marketed to the same consumers, under the same mark, and through the same websites, thus establishing a very close relatedness between bras and [Applicant’s applied-for] clothing." ("applied-for" clothing? - ed.).

Accordingly, the Board concluded that the first, second, and third DuPont factors favored a finding of likelihood of confusion. "The Cited Registration has some conceptual weakness, but this does not outweigh the other factors or alter our conclusion that confusion is likely."

And so, the Board affirmed the refusal.

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TTABlogger comment: Do you think confusion as to source is likely in the real world?

ZEN WAFFLES Confusable with ZEN BAKERY, Says TTAB

2026-10-09T05:56:56.002-04:00

The Board upheld a Section 2(d) refusal of the mark ZEN WAFFLES for "Waffles; Filled waffles; Frozen waffles; Waffle mixes; Protien [sic]-enriched waffles" [WAFFLES disclaimed], concluding that confusion is likely with the registered mark ZEN BAKERY in standard character form, for "bakery goods; muffins, cookies, rolls, pastry; bakery goods for retail and wholesale distribution and consumption on or off the premises," and in stylized form for "muffins, cookies, rolls, pastry" [BAKERY disclaimed]. Applicant claimed that ZEN is a weak formative because it "refers to calmness, mindfulness, and wellness, concepts that are routinely used in food and lifestyle branding." The Board didn't buy it. In re Zen Cafe Corp., Serial No. 99185689 (October 7, 2026) [not precedential] (Opinion by Judge Jennifer L. Elgin).

The Board agreed with Examining Attorney Mackenzie Olson's assessment of the conceptual weakness argument: "[p]eople do not tend to seek out waffles and baked goods in a search for peace or calmness; consumers seek out waffles and baked goods because they are hungry." Applicant also claimed that ZEN is commercially weak because "the marketplace is saturated with ZEN-formative marks for tea, matcha, spices, noodles, packaged foods, beverages, cafes, and restaurants" and the term is also used in connection with many other food and wellness-themed products. However, there was no admissible evidence in support of that argument.

As to the marks, the Board acknowledged the “penchant of consumers to shorten marks.” It found the shared distinctive term ZEN to be the dominant element in both marks, resulting in similar appearance and sound. It also noted that applicant's mark could be displayed a style similar to that of the cited stylized mark.

Applicant claimed that the marks have different meanings and connotations: a modern, product-specific brand focused on a particular type of food, as opposed to a traditional bakery business offering a range of baked good. The Board was unmoved: "Applicant's arguments . . . are not well taken or supported by evidence. The far more dominant term is the distinctive ZEN, and waffles and bakery products and pastries are not so different that they impart starkly different connotations to consumers."

As to the goods, the examining attorney submitted twelve third-party use-based registrations that identify goods in both the cited registrations and the application at issue. Evidence of six third-parties, each selling the goods under a single mark, confirmed the relatedness of the goods.

Applicant argued that the Board should consider the goods and services actually offered by applicant and registrant: "protein-enriched waffles that are marketed as functional, health-oriented breakfast products" versus "traditional bakery offering fresh baked goods, muffins, cookies, and pastries, distributed through wholesale grocery channels" and no waffles. The Board pointed out that there are no such limitations in the application or cited registrations. "We cannot read limitations into identifications of goods based on either argument or evidence of actual use."

The Examining Attorney’s third-party registration and use evidence is persuasive and uncontroverted. In view of the foregoing, we find that the goods identified in the application are related to the goods identified in the cited registration.

As to channels of trade, "Applicant’s and Registrant’s goods presumptively move in all normal trade channels and to all consumers that purchase such goods. * * * For this reason, the evidence of real-world trade channels and consumers relied on by Applicant are irrelevant." In short, the goods "may be encountered in the same retail outlets by the same consumers, and thus the channels of trade overlap."

Furthermore, bakery goods are low-priced items subject to impulse buying, which increases the likelihood of confusion because purchasers "are held to a lesser standard of purchasing care.” And so, the Board found that the third and fourth DuPont factors favored likelihood of confusion.

Finally, applicant pointed to the lack of evidence of actual confusion, but the Board pointed out that this is an ex parte proceeding in which the owner of the cited registration has no opportunity to submit evidence of actual confusion. Furthermore, applicant did not submit any evidence to show there has been a significant opportunity for actual confusion to have occurred.

In this case, the first and second DuPont factors – which we consider most important – weigh in favor of likelihood of confusion given the similarity of the marks and similarity of the goods. * * * The third and fourth factors also weigh in favor of likelihood of confusion. The fifth, sixth, seventh, and eighth factors are neutral on this record. No factors weigh against likelihood of confusion. We conclude that confusion is likely.

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TTABlogger comment: Is this a "WYHA?"? [That double question mark is tricky].

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