The TTABlog®

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

2026-05-22T07:00:11.741-04:00

TTAB affirmances of Section 2(d) refusals continue to run at about 90% this year. Here are three recent decisions. How do you think they came out? [Answer in first comment].

In re Skylark Nails Supply, Serial No. 97612916 (May 6, 2026) [not precedential] (Opinion by Judge Wendy B. Cohen) [Section 2(d) refusal of the mark CRE8TION for "Acrylic nail powder and liquid preparations for shaping or sculpting nails; Adhesives for affixing false eyelashes; Artificial eyelashes; Nail hardeners; Nail tips" and for manicure and pedicure implements and eyelash curlers, in view of the registered mark CREATION (in standard characters) for perfumes, beauty products, tanning products, skin toners, lotions, and creams, and other class 3 products.]

In re Lucky Day Entertainment, Inc., Serial No. 98391360 (May 8, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande). [Section 2(d) refusal of LUCKY DAY for “Downloadable software in the nature of a mobile application for playing games of chance; Downloadable computer game programs" in view of the registered mark MY LUCKY DAY (in standard characters) for "Machines for playing games of chance."]

In re GSM Services, Inc., Serial Nos. 98318207 and 98318223 (May 20, 2026) [not precedential] (Opinion by Mark A. Thurmon). [Section 2(d) refusal of the mark GSM HEATING AND COOLING SINCE 1927, in standard form and in the word-and-design form shown below, for "Advisory services relating to the installation of heating and cooling apparatus; Air conditioning apparatus cleaning services; Air duct cleaning services; Home energy assessment services for the purpose of determining home improvements needed to improve energy use and efficiency; HVAC contractor services; HVAC duct cleaning services; Installation of heating and cooling apparatus; Installation of insulating materials; Installation of insulating materials in buildings and structures; Installation of building insulation; Repair or maintenance of power generators; Installation of HVAC systems; Maintenance and repair of electricity generators,” in view of the registered mark GSM ROOFING for "Roofing services."]

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

Text Copyright John L. Welch 2026.

TTAB Affirms Requirement to Disclaim DATA STREAMS for Database Management and Storage Services

2026-05-21T06:22:10.530-04:00

The USPTO affirmed a refusal to register the mark CHAINLINK DATA STREAMS for “Database management services, namely, collecting secure data for use by decentralized computing networks” (International Class 35) and “Storing of secure electronic data for use by decentralized computing networks” (International Class 42), absent a disclaimer of the term DATA STREAMS. Applicant argued, inter alia, that the wording CHAINLINK DATA STREAMS, as a whole, is unitary, and so DATA STREAMS cannot be descriptive. The Board disagreed. In re SmartContract Chainlink Limited SEZC, Serial No. 98004679 (May 7, 2026) [not precedential] (Opinion by Judge Mark Lebow).

Examining Attorney David Tooley contended that “[t]he wording DATA STREAMS is a well-defined term in the computer industry referring to a manner of transmitting data across computer networks.” He submitted dictionary definitions and numerous examples showing the meaning of “data streaming” within the relevant industry. He concluded that the term DATA STREAMS is descriptive of applicant’s services because they all involved streaming of data among networked computers.

The Board agreed: "Here, DATA STREAMS is not a blended or coined unitary term. It’s a common, well-established phrase in the computer and data-processing industry that directly and immediately conveys the continuous transmission or flow of data – precisely the core feature of Applicant’s services."

Applicant maintained that DATA STREAMS has multiple meanings. The Board pointed out, however, that “[i]t is well settled that so long as any one of the meanings of a term is descriptive, the term may be considered to be merely descriptive.”

Applicant’s own promotional materials of record confirm that its CHAINLINK DATA STREAMS offering involves the reliable delivery and availability of data in distributed systems using active multi-site deployment models that ensure continuous operations.

Applicant also argued that its services involve “data at rest," while the Examining Attorney’s evidence relates primarily to real-time analytics, ingestion pipelines, and transmission, not to the identified storage and database management services. The Board was unmoved.

These services necessarily involve the collection of data from one or more sources and the provision of that data for use by a decentralized network of computers. In the context of computer networks – especially decentralized ones – collecting and making data available for network use inherently requires the transmission or flow of data across network nodes. One of the primary methods for transferring data among network nodes is via data streams, as the record abundantly demonstrates. Applicant’s own promotional materials of record confirm that its CHAINLINK DATA STREAMS offering involves the reliable delivery and availability of data in distributed systems using active multi-site deployment models that ensure continuous operations.

Applicant further contended that the combination of CHAINLINK (its alleged house mark) with DATA STREAMS creates an incongruity because “streams” “connotes ephemerality and flow, and Applicant’s identified services focus on durable, secure storage. The Board waved off that argument: "There is no incongruity in using a term that describes a key feature or function of the services simply because the services have multiple aspects. DATA STREAMS directly and immediately describes the transmission aspect inherent in collecting and making data available for use by decentralized computing networks." The mere addition of the house mark, CHAINLINK, does not create an incongruity.

Applicant’s own evidence confirms that its services employ multi-site deployment models to ensure continuous, reliable data availability across distributed origins. For the foregoing reasons, the term DATA STREAMS is merely descriptive of a feature of Applicant’s services.

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TTABlogger comment: WYHA?

Text Copyright John L. Welch 2026.

TTABlog Test: Is GRUPPO VAVA for Clothing Excluding Lingerie Confusable with VAVA for Lingerie?

2026-05-20T06:09:15.296-04:00

The USPTO refused to register the mark GRUPPO VAVA for various clothing items, including hats, t-shirts, and sweatshirts (and excluding "lingerie, bras, underwear, or intimate apparel"), concluding that confusion is likely with the registered mark VAVA for "lingerie." Applicant ADG Vanguard conceded, in the face of third-party use and registration evidence, that the goods are related. It argued, however, that consumers will not perceive "VAVA" when applied to lingerie in the same way as when GRUPPO VAVA is applied to its clothing items. What do you think? Did ADG give the USPTO the slip? In re ADG Vanguard IP LLC, Serial No. 98516000 (May 18, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande).

The Board wasted little time in finding the marks confusable. Although ADG's mark begins with GRUPPO, and the first word of a mark can often make the biggest impact, here the impact of GRUPPO "is blunted because Applicant disclaimed GRUPPO—which is Italian for 'group'—because it has descriptive, rather than source-identifying, significance." Furthermore, the fact that applicant's mark incorporates the entire cited mark "can be significant in comparing the marks for likelihood-of-confusion purposes."

Applicant ADG argued that consumers will perceive the cited VAVA mark as comprising the first part of the known phrase “va-va-voom,” which connotes sexiness, an attribute naturally associated with lingerie. In contrast, consumers will not associate “va-va-voom” with ADG's mark because the word “GRUPPO” before the term “VAVA” will cause consumers to see “VAVA” not as part of “va-va-voom” but just a “vaguely Italian-sounding term.” Moreover, Applicant argued, its goods aren’t sexy.

The Board found these to be "interesting theories," but there was no evidence in support.

“Sexiness” is highly subjective, and we don’t think the “va-va-voom” connotation—if indeed that’s the connotation that “VAVA” without the “VOOM” imparts—can be so precisely limited only to lingerie. Although Applicant characterizes some of the clothing items in its identification of goods as “functional”—as opposed to “sexy”—items (e.g., business wear, running shoes, track suits), other types of clothing listed in the application (dresses, skirts, shirts, blouses, and shorts, for example) are made or worn in a wide variety of ways, including ways that are perceived as “sexy.”

Moreover, the Board noted, the dictionary definitions of “lingerie” in the record indicated that, "besides women’s intimate apparel, it also includes 'sleepwear,' which is not exclusively a 'sexy' category of goods, and—to use Applicant’s terms—includes 'functional' sleepwear."

In sum, the Board found the marks to be similar, the goods to be related, and the trade channels and classes of customers overlapping. No DuPont factors indicated that confusion is unlikely. "With the only relevant factors all indicating that confusion is likely and nothing to counterbalance them, there’s no real balancing to be done. On the record here, we conclude that confusion is likely."

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TTABlogger comment: The term VA-VA-VOOM, in my experience, is usually accompanied by a pair of eyeballs bulging out of a cartoon wolf's head.

Text Copyright John L. Welch 2026.

TTABlog Test: Is HORSETHIEF CANYON VINEYARDS for Wine Confusable with HORSE THIEF HOLLOW for Beer?

2026-05-19T06:10:35.609-04:00

The USPTO refused to register (on the Supplemental Register) the mark HORSETHIEF CANYON VINEYARDS for "wine" [VINEYARDS disclaimed], concluding that confusion is likely with the registered mark HORSE THIEF HOLLOW for "beer." As we know, different alcoholic beverages are usually found to be related under Section 2(d) based on third-party registration and use evidence, but what about these marks? Did Applicant stand a chance? In re HC Vineyards LLC, Serial No. 98579854 (May 4, 2026) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

“There is no per se rule that holds that all alcoholic beverages are related.” Examining Attorney Lisa McCrary provided evidence of 16 entities offering both wine and beer under the same mark, 20 third-party registrations covering both goods, and an article in Wine Enthusiast titled “‘Give ‘Em What They Want’: These Craft Breweries Make Wine Now, Too.” [Why isn't this article hearsay? - ed.]

Applicant HC Vineyards, appearing pro se, argued that "these few examples are not representative of the industry standard. It is unusual for a winery to brew its own beer, just as it is even more rare for a brewery or restaurant/bar to produce and brand its own wine." The Board was unmoved, noting that applicant provided no evidence for its assertions, and further that the Office's evidence was sufficient to support a finding of relatedness under the second DuPont factor.

The same evidence established that the channels of trade "overlap to at least some degree." The third DuPont factor therefore supported the refusal.

Turning to the marks, the Board found that, "visually and phonetically, HORSETHIEF CANYON VINEYARDS and HORSE THIEF HOLLOW are similar due to the nearly identical first word(s) HORSETHIEF and HORSE THIEF." Moreover, the overall marks "engender similar impressions because they both convey the idea of a depressed area of land where thieves hide their stolen horses." The Board concluded that the first DuPont factor "somewhat heavily" supported the refusal.

HC Vineyards unsuccessfully argued that the involved consumers are sophisticated and exercise care in purchasing, but it provided no evidence thereof. The Board noted that neither identification of goods contains any limitations on quality or price of the goods, and they therefore must be presumed to include goods of all quality levels and price points. Beer is offered at moderate prices and wine may be more expensive but still includes moderately priced products that appeal to average consumers. The Board's decision must “be based on the least sophisticated potential purchasers.” "And even if some consumers of the goods are more sophisticated or discerning than others, even “careful or sophisticated consumers are not immune from source confusion.” The Board deemed the fourth DuPont factor to be neutral.

The Board also found the eighth, tenth, twelfth and thirteenth DuPont factors to be neutral, and no factor weighed in applicant's favor.

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TTABlogger comment: Unless this was your first rodeo, you surely got this right. A typical mechanical application of the Board's stacked-deck Section 2(d) analysis.

Text Copyright John L. Welch 2026.

TTAB Affirms Genericness Refusal of THE SKIN COACH for . . . . Guess What?

2026-05-18T06:11:04.525-04:00

The Board upheld a genericness refusal of the proposed mark THE SKIN COACH for, inter alia, "Professional coaching services in the field of health and wellness," "Providing on-line training in the form of courses, workshops, seminars, and private coaching in the field of health and wellness," and "Holistic health services," rejecting the application for a Supplemental Registration under Sections 23(c) and 45 of the Trademark Act. Applicant acknowledged the considerable third-party evidence of use of "skin coach" "in connection with skincare, wellness, or esthetics," but contended that the term is at most descriptive, not generic. In re The Skin Coach LLC, Serial No. 98351505 (May 11, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

The Board determines the issue of genericness as a question of fact, based on the preponderance of evidence. ["Clear evidence" is not required]. The Office bears the ultimate burden of proof. "Determining whether a mark is generic . . . involves a two-step inquiry: First, what is the genus of goods or services at issue? Second, is the term sought to be registered . . . understood by the relevant public primarily to refer to that genus of goods or services?"

The Board observed that "A term is generic if it refers to the class or category of goods or services on which it is used," citing Marvin Ginn and Dial-A-Mattress, or to "part of the claimed genus of goods or services, even if the public does not understand the term to refer to the broad genus," citing Royal Crown and Cordua. [Emphasis by the Board].

The Board found the genus of the respective two classes of services to be “Professional coaching services in the field of health and wellness” and “Providing on-line training in the form of courses, workshops, seminars, and private coaching in the field of health and wellness” in Class 41, and “Holistic health services” in Class 44. Applicant conceded that “‘skin coach’ may describe a niche focus within Applicant’s broader wellness services.” The question for the Board was whether the evidence showed "that the primary significance of THE SKIN COACH is to refer to that sub-genus of the involved services."

Turning to the public's understanding of the term THE SKIN COACH, Examining Attorney Janice McMorrow submitted dictionary definitions of "skin" and "coach," applicant's own specimen website pages (using “skin coach” generically in lowercase letters to identify the provider of the services, applicant’s principal “Malia,” as “your new skin coach & BFF”), and numerous third-party websites. After a detailed analysis of those websites, the Board concluded:

On balance, the third-party website evidence shows that the primary significance of the phrase “skin coach” is to refer to the sub-genuses of “professional coaching services in the field of health and wellness,” “on-line training in the form of courses, workshops, seminars, and private coaching in the field of health and wellness,” and “holistic health services” regarding skin care.

A number of LEXIS/NEXIS articles use "skin coach" and variants "generically to identified multiple instructors who provide services falling within" the sub-genuses listed above.

The Board found, from this evidence, that "the primary significance of THE SKIN COACH to the relevant consuming public is to refer to the sub-genuses of 'Professional coaching services in the field of health and wellness' and 'Providing on-line training in the form of courses, workshops, seminars, and private coaching in the field of health and wellness' in Class 41, and 'Holistic health services' in Class 44, regarding skin care."

And so, the Board affirmed the refusal.

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TTABlogger comment: I'm a bit confused. Is THE SKIN COACH a sub-genus of the sub-genuses? Anyway, the term seems merely descriptive to me. If you looked for a phone book listing of health or fitness providers, would you find a sub-heading, "skin coaches?" But then, a mere descriptiveness rejection that would still allow a Supplemental Registration. The Board didn't want that to happen.

Text Copyright John L. Welch 2026.

TTABlog Test: Which of These Three Section 2(d) Refusals Was/Were Reversed?

2026-05-14T05:43:27.035-04:00

TTAB affirmances of Section 2(d) refusals continue to run at about 90% this year. Here are three recent decisions. At least one of them resulted in a reversal. What say you? [Answer in first comment].

In re Grandvision France, Serial No. 79389236 (May 12, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin). [Section 2(d) refusal of the mark shown below left, for "“Spectacles; spectacle frames; eyeglasses; sunglasses; masks for sports in the nature of sports goggles, with the exception of fencing masks; spectacle lenses; optical lenses; lenses for sunglasses; correcting lenses being optical lenses; contact lenses; eyeglass lenses; ophthalmic lenses; corrective lenses being optical lenses; spectacle cases; eye glass cases; carrying cases for contact lenses; headbands, cords, chains and ties for holding spectacles, namely, eye glass cords and eye glass chains; binoculars; optic magnifiers being magnifying glasses” in view of the registered mark below right, for "Beauty masks; Cleaning preparations; Cosmetic preparations for eyelashes; Cosmetic products in the form of aerosols for skin care; Cosmetics; Cotton sticks for cosmetic purposes; Cotton wool for cosmetic purposes; Facial cleansing milk; Lotions for cosmetic purposes; Make up removing preparations.”]

In re Destiladora del Valle de Tequila SA de CV, Serial No. 98588895 (May 12, 2026) [not precedential] (Opinion by Judge Robert Lavache) [Section 2(d) refusal of AI for "Distilled agave liquor" in view of the identical mark registered for "Wine."]

In re TDI Novus Inc., Serial No. 98593408 (May 12, 2026) [not precedential] (Opinion by Judge Thomas W. Wellington). [Section 2(d) refusal of the mark shown below, for "A voice communication system for an autonomous vehicle in maritime comprised of an apparatus to record, transcribe, translate, and parse voice communications over the radio frequency spectrum and autonomously providing a system generated voice transmission response that is appropriate and in context of the transmission and any earlier transmissions," in view of the registered mark MERMADE for, inter alia, "apparatus for recording, transmission or reproduction of sound and images."].

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

Text Copyright John L. Welch 2026.

TTAB Affirms Refusals to Register Restaurant Interior Designs: Distinctiveness Neither Inherent Nor Acquired

2026-05-12T03:18:42.827-04:00

The Board affirmed refusals to register the two restaurant interior designs shown below, for "restaurant services," finding that the proposed marks lacked inherent distinctiveness and were not shown to have acquired distinctiveness. In re ETLC Trademarks, LLC, Serial Nos. 98166506 and 98120339 (May 5, 2026) [not precedential] (Opinion by Judge Jessica B. Bradley).

Applicant's trade dress comprised the interior design of a restaurant consisting of the combination of the following elements:

One or more Chicago style brick walls;
A bar counter with either a Chicago brick facade or an abstract wood accent facade;
A finishing counter connected to the bar;
A prep table; and
A rotisserie grill that includes a wheel on the upper left side that adjusts the grills with chains to create movement of the metal structure that sits on top of the grill.

The Board applied the CAFC's Seabrook factors and found that the proposed marks satisfy both the second and third Seabrook factors, and accordingly are not inherently distinctive. Chippendales, 622 F.3d at 1351 (Where “a mark satisfies any of the first three [Seabrook] tests, it is not inherently distinctive.”).

The Proposed Marks would be perceived by patrons of Applicant’s restaurant services simply as part of the overall decor or ambiance of Applicant’s restaurants. Given the common use of the claimed elements and the common arrangement of the elements in other restaurants, customers are not likely to view this decor or ambience as identifying and distinguishing the source of Applicant’s restaurant services.

Turning to the issue of acquired distinctiveness, the Board considered the Converse factors and found that Applicant's evidence fell far short.

And so, the Board affirmed the refusals.

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TTABlogger comment: Ran into a brick wall?

Text Copyright John L. Welch 2026.

Are These Two Logo Marks Confusable for Candy?

2026-05-11T01:43:48.142-04:00

Candy Dynamics, Inc. opposed an application to register the mark below left, for candy, claiming likely confusion with its registered mark shown below right, also for candy. The Board found the first DuPont factor, the similarity or dissimilarity of the marks, to be dispositive. How do you think this came out? Candy Dynamics, Inc. v. Aurox Distributors LLC, Opposition No. 91292159 (May 7, 2027) [not precedential] (Opinion by Judge Marth B. Allard).

The Board acknowledged that Applicant’s mark includes a large design element, but it found the literal element SOUR CITY to be its dominant element. "Moreover, the exaggerated expression on the character’s face, i.e., its wide-eyes and outstretched tongue, suggests it has just eaten something extremely sour. Thus, the image reinforces the literal elements of the mark and, for that reason, further supports our finding that the literal elements SOUR CITY are the dominant portion of Applicant’s mark. This is so, despite the fact that, as Opposer argues, the image is larger in size compared to the size of the literal elements."

Comparing the marks for similarity in sight and sound, the Board found that "the marks share no common literal elements and are dissimilar in sight and sound."

As to connotation and commercial impression, "nothing in Applicant’s mark suggests that the character has tasted something toxic; rather, the literal elements SOUR CITY suggest the character has eaten something sour." This is in contrast to Opposer’s mark, in which "the mushroom cloud image and the resulting toxic connotation is completely missing from Applicant’s mark. As a result, the marks when considered in their entireties are different in connotation and commercial impression."

When comparing the parties’ marks in their entireties, we agree with Opposer that the parties’ design portions share some general, thematic similarities, i.e., each character has (i) a sort of rounded head; (ii) bloodshot eyes, with the right eye slightly larger than the left; and (iii) a fully extended tongue extending from the left-center of their mouth. However, the record shows that the shared elements of a character with a rounded head, wide-eyes and outstretched tongue are relatively weak, and not “unique” as Opposer argues. Moreover, the presence of the wording SOUR CITY in the Applicant’s mark suffices to distinguish the marks aurally and further distinguishes them visually.

And so, the Board dismissed the opposition.

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TTABlogger comment: WYHO?

Text Copyright John L. Welch 2026.

TTAB Judge Elizabeth A. Dunn Has Retired

2026-05-08T02:10:55.956-04:00

Administrative Trademark Judge Elizabeth A. Dunn has retired from the Trademark Trial and Appeal Board. She was appointed to the Board in 2019. Judge Dunn is, by my count, the tenth TTAB judge to leave the Board since January 2025. A current roster of the TTAB judges may be found here.

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Text Copyright John L. Welch 2025.

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

2026-05-06T01:37:35.967-04:00

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

In re Studio Mir Co., Ltd., Serial No. 90310822 (April 24, 2026) [not precedential] (Opinion by Judge Lawrence T. Stanley, Jr.). [Section 2(d) refusal of the mark KOJI for, inter alia, comic or picture books and toys "relating to fictional character from anime series" in view of the identical mark registered for "stickers."]

In re Natures Generator, Inc., Serial No. 97519777 (April 28, 2026) [not precedential] (Opinion by Judge Robert Lavache). [Section 2(d) refusal of the mark shown below, for "Solar-powered electricity generators; Wind-powered electricity generators" in view of the registered mark POWERHOUSE for "Portable electric generators."]

In re Marx Brothers, Inc., Serial No. 98455354 (May 1, 2026) [not precedential] (Opinion by Judge Robert Lavache). [Section 2(d) refusal of the mark PALM ISLE for "Coconut milk; Coconut oil for food; Desiccated coconut; Flaked coconut; Processed coconut" in view of the registered mark PALM ISLAND for "Gourmet sea salt for cooking and spices."]

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

Text Copyright John L. Welch 2026.

Precedential No. 2: TTAB Upholds USPTO Reexamination Ruling: EVERWISE CREDIT UNION Registration to be Cancelled for Nonuse

2026-05-04T02:53:41.014-04:00

In what appears to be the first review of a reexamination decision under Section 16B of the Trademark Act, the Board affirmed the USPTO’s finding that a registration for the mark EVERWISE CREDIT UNION for various banking, credit union, and financial services should be cancelled because the registrant failed to prove that it had used the mark as of the deadline date for its Statement of Use. “In light of the overwhelming evidence showing that Registrant did not adopt EVERWISE CREDIT UNION as a mark for its financial services until after the SOU Deadline, the single use of ‘Everwise Credit Union™’ on the specimen is insufficient to demonstrate bona fide use of the mark in commerce. Rather, in view of the record, the specimen demonstrates only Registrant’s attempt to reserve rights in the mark through minimal, token use.” In re Everwise Credit Union, Reexamination No. 2023-100533R for Registration No. 7068783 (April 29, 2026) [precedential] (Opinion by Judge George C. Pologeorgis).

In a reexamination proceeding, the USPTO may cancel a registration, in whole or in part, if the evidence shows that the registered mark was not in use in commerce as of the filing date of a use-based application or, in the case of an intent-to-use application, as of the date of an amendment to allege use, or as of the deadline for filing a statement of use, including all approved extensions, as applicable.

Registrant filed its Statement of Use on April 14, 2023, and the registration issued on May 30, 2023. A third-party petitioned for reexamination on June 20, 2023. The Director of the USPTO instituted the reexamination proceeding based on the petitioner's prima facie showing of nonuse. Registrant was then required to rebut the prima facie case.

Registrant's specimen of us comprised a screenshot of its website. Petitioner submitted the results of a Wayback Machine search showing no use of the mark prior to the critical date. Google Play Store and Apple Store evidence showed that Registrant, as of the SOU Deadline, offered an app for its credit union services under the name “TCU Mobile Banking” and not EVERWISE CREDIT UNION.

In rebuttal, Registrant submitted a declaration from its Chief Marketing & Growth Officer, asserting that the mark was in use during the relevant time period. When Examiner Brittany Lee-Richardson issued a final office action finding that Registrant had failed to rebut the prima facie case of nonuse, Registrant appealed.

Registrant argued that its webpage specimen showed the mark EVERWISE CREDIT in a tagline at the top of the webpage above a section that describes what it means to be a credit union, stating that TCU is an “Everwise Credit Union." [See illustration above]. Its declaration attested that the mark has been in continuous and extensive use.

The examiner contended that, when compared to the display of the TCU or TEACHERS CREDIT UNION marks, the non-prominent use of the EVERWISE CREDIT UNION mark on the specimen of use failed to demonstrate bona fide use in commerce. Moreover, a blog post by Registrant on June 26, 2023, announced that it would be re-branding the credit union from TEACHERS CREDIT UNION to EVERWISE CREDIT UNION.

The Board first observed that, non surprisingly, the fact that the original examining attorney accepted the statement of use was not dispositive of the issue. See In re Locus Link USA, No. 2022-100137E, 2024 WL 3274709, at *6 (TTAB 2024).

Reviewing the specimen of use, the Board found that the appearance of the wording EVERWISE CREDIT UNION "buried in the text of the webpage in the same font and size as the rest of the wording in the corresponding paragraph," would not be perceived by relevant consumers as a source indictor for the recited services.

As to the use of the mark in the tagline, the Board found that "such use of the wording on the specimen does not constitute bona fide use of the mark in commerce, but is merely use made in an attempt to reserve a right in the mark until Registrant was actually using the mark in commerce in connection with its financial services."

Registrant filed a change of name from Teachers Credit Union to Everwise Credit Union with the Office on July 19, 2023. The change of name was executed on June 26, 2023, after the SOU Deadline (April 14, 2023). The fact that Registrant did not actually change its name to EVERWISE CREDIT UNION until two months after the SOU Deadline supports the finding that it added the tagline incorporating the mark to a single page on its website merely to preserve its right to make bona fide use of the mark in the future, i.e., to merely reserve a right in the mark.

The Board found it "quite remarkable" that Registrant "could not produce a single additional document that uses the wording EVERWISE CREDIT UNION as a source indicator of its financial services as of the SOU Deadline." Moreover, none of the exhibits attached to registrant's declaration showed use of the wording EVERWISE CREDIT UNION as a source indicator for these services. Instead, the marks TCU or TEACHERS CREDIT UNION appear throughout the exhibits as the source indicator for the listed services."

[The] lack of additional evidence demonstrating use as a source identifier pre-dating the SOU Deadline, viewed in conjunction with the screenshots of Registrant’s website advising that Registrant would officially offer its registered financial services under the EVERWISE CREDIT UNION mark after the SOU Deadline, clearly shows that Registrant’s use of the EVERWISE CREDIT UNION mark on the submitted specimen was not bona fide in nature but submitted for the purpose of reserving the mark for use at a future date. This is exactly the type of use the statute was designed to avoid.

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TTABlogger comment: The Board's opinion includes a lengthy and helpful discussion of how reexamination works. Note that, rather than the term "examining attorney," Section 16B of the Act uses the term "examiner." Also note that the applicant had run out of extensions of time when it filed its SOU.

Text Copyright John L. Welch 2026.

TTAB Posts May 2026 Hearing Schedule

2026-05-01T06:36:32.888-04:00

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

May 6, 2026 - 10:00 AM [Virtual]: In re Rivers IP Holdngs, LLC, Serial No. 97511850 [Section 2(d) refusal to register the mark shown immediately below, for "Fast casual take away restaurant services featuring Mexican food served to patrons in a casino" [TACO disclaimed] in view of the registered mark SUERTE for "Restaurant services; Bar services; Catering services."]

May 27, 2026 - 10:00 AM [Virtual]: NIKE, Inc. v. Gotemkicks, Opposition No. 91287908 [Section 2(d) opposition to registration of the mark GOT EM KICKS for "Retail consignment stores featuring retro sneakers and clothing," in view of the opposer's alleged common law rights in the mark GOT 'EM for retail store services featuring footwear and clothing.]

May 28, 2026 - 10:00 AM [In-Person]: Constellation Brands U.S. Operations Inc. v. The Vineyard House LLC, Opposition No. 91245800 et al. [Consolidated oppositions against twelve applications for registration of marks comprising variations of the name Henry Walker Crabb, for wine, on the grounds that (1) Applicant lacked a bona-fide intent to use nine of its marks at the time the opposed applications were filed; (2) the CRABB’S BLACK BURGUNDY trademark violates the wine and spirits provision of Section 2(a); (3) applicant’s marks misdescribe qualities and characteristics of applicant’s Goods in a way that would deceive consumers; (4) applicant’s marks are likely to cause confusion as the source of goods because they are confusingly similar to opposer’s marks; and (5) applicant’s marks create a false association with opposer and opposer’s TO KALON Vineyard.]

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TTABlogger comment: What say you? See a WYHA?

Text Copyright John L. Welch 2025.

The Trademark Reporter's "Annual Review of European Trademark Law"

2026-04-30T06:31:06.300-04:00

The Trademark Reporter has published its "Annual Review of European Trademark Law," with contributions from an impressive roster of authors from across Europe. The volume may be downloaded here. Willard Knox, Staff Editor-in-Chief, comments as follows:

This annual curated compendium highlights European trademark case law decisions rendered by courts in 2025 in the European Union (“EU”) (at both the EU and national levels), the United Kingdom, and other European jurisdictions.

A big shoutout to TMR member and principal author/editor Tom Scourfield as well as TMR member and contributor Jordi Güell for their work on this issue!

Please join me as Tom, Jordi, and TMR author Alicja Zalewska-Orabona present their popular Annual Review of Leading Case Law in Europe session on Tuesday, May 5, 12:00 pm–1:00 pm.

TTABlogger comment: Once again I thank The Trademark Reporter for granting leave to provide a link to this issue, which is Copyright © 2026 the International Trademark Association and reprinted with the permission of The Trademark Reporter®, 116 TMR No. 2 (March-April 2026).

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Text Copyright John L. Welch 2026.

TTAB Upholds Genericness Refusal of SOCIAL SECURITY LAW GROUP for . . . . Guess What?

2026-04-29T06:05:06.414-04:00

The Board squelched Applicant Victor Arruda's attempt to register the proposed mark SOCIAL SECURITY LAW GROUP (in standard character form) for "Legal services for individuals seeking social security disability and supplemental security income claims. Legal document preparation, legal research and legal consultancy in the context of social security disability and supplemental security income claims." Finding the term generic for Arruda's services, the Board declined to reach the Office's mere descriptiveness refusal. In re Victor Arruda, Serial No. 98083575 (April 27, 2026) [not precedential] (Opinion by Judge Cheryl S. Goodman).

As to the genus of the services, Examining Attorney Lee-Anne Berns maintained that the appropriate genus is "Social Security legal services," but the Board found the genus to be "adequately defined by Applicant’s recitation of services."

In this case, the specific identification of services in the application is a subcategory (social security disability and supplemental income legal service) of a broader spectrum of social security legal services. Furthermore, reliance on the identification of services to identify the genus of the services at issue “is based on the premise that the recitation accurately reflects actual conditions of use of the involved term.” In re DNI Holdings Ltd., No. 76331011, 2005 TTAB LEXIS 515, at *9.

The next question was "whether the term sought to be registered is understood by the relevant public primarily to refer to that genus of goods or services." In light of Applicant Arruda's recitation of services, the Board found the relevant consuming public to be individuals "who seek legal services to assist with social security disability and supplemental security income claims, as well as long term disability insurers who engage attorneys for their insureds who pursue Social Security Disability claims with the Social Security Administration."

It is appropriate, as a first step, to "analyze the constituent terms." Not surprisingly, the Board found that SOCIAL SECURITY refers to “a U.S. government program established in 1935 to include old-age and survivors insurance, contributions to state unemployment insurance, and old-age assistance.”

Considering the evidence as a whole, we find the term SOCIAL SECURITY is a unitary generic term identifying a category of legal services. The dictionary evidence, the treatise and CLE evidence, the law directory evidence, the third-party use evidence, as well as Applicants own use and statements (yellow pages, brochure, website and declaration testimony) demonstrate that Social Security is generic for a legal practice area or legal category.

The evidence also showed that LAW GROUP is "a unitary generic term for a group of lawyers that provide legal services together."

As to the public's understanding of the term SOCIAL SECURITY LAW GROUP as a whole, based in part on third-party declarations submitted by Applicant Arruda, the Board concluded that when the terms SOCIAL SECURITY and LAW GROUP are combined, "they retain their generic significance, and the combination provides no additional difference in meaning."

Applicant Arruda argued that none of the evidence showed that the proposed mark SOCIAL SECURITY LAW GROUP can be immediately recognized as a service related to “disability and supplemental income claims." However, if that were the test, "then no word or term would be found to be generic provided that applicant submitted a highly detailed description of its goods and services." Moreover, a word or term that names a category is generic for more narrowly identified goods or services.

[A]lthough applicant contends SOCIAL SECURITY LAW GROUP is not the term the relevant public would use to describe the genus, the record evidence reflects that the relevant public would nonetheless understand SOCIAL SECURITY LAW GROUP to refer to a law firm that practices Social Security Law, which would include practicing law in the more specific area of Social Security Disability Supplemental Security Income claims.

And so, the Board affirmed the refusal to register.

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TTABlogger comment: WYHA? The "refer to" language comes from Marvin Ginn, 782 F.2d at 989-990.

Text Copyright John L. Welch 2026.

TTAB Affirms Refusal of THEE EARTH logo due to "Mismatch" Between the Identified Goods and Specimens of Use

2026-04-28T06:41:20.513-04:00

The Board upheld a refusal to register the logo mark shown immediately below, for "compost," on the ground that the specimens do not show use of the mark on the single good identified in the application. Applicant Thee Earth described its two specimens of use as a photo of a toter bin and a picture of "food waste, food scraps, and solid food inside the bin which is considered compost." [The two specimens are shown further below]. Thus, there was "a mismatch between the identified good and the goods and/or services reflected by the specimens." In re Thee Earth & Composting Solutions, LLC, Serial No. 98020099 [not precedential] (Opinion by Judge Thomas L. Casagrande).

Thee Earth explained that its business consists of “compost collection services” and the “production and sale of finished compost." "Customers purchase a heavy-duty, two-wheeled plastic compost toter bin—available in 35-gallon, 65-gallon, and 96-gallon sizes—for purposes of storing their compostable organic waste prior to scheduled collection." The logo appears on each bin and on every bag of finished compost.

This explanation makes clear that Applicant does indeed sell compost, which is the only good identified in the application. And Applicant states that the compost is sold in bags with Applicant’s mark on them. That’s all good. But the problem is that none of the specimens Applicant submitted shows a labelled bag of compost as Applicant sells it.

The specimens show the mark only on a “toter bin” and Thee Earth made clear it does not sell compost in a toter bin, but in bags. "In layperson’s terms, there is a 'disconnect' or 'mismatch' between the single good listed in the application (compost) and the goods and services Applicant says that specimens represent."

The Board noted that, "at this late stage," nothing can be done to "fix" the issue. An application that has been considered and decided on appeal cannot be re-opened, except for entry of a disclaimer. The Board further noted that Thee Earth may file another application and provide a proper specimen.

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TTABlogger comment: WYHA?

Text Copyright John L. Welch 2026.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Text Copyright John L. Welch 2026.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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TTABlogger comment: How did you do?

Supreme Court Denies Petition for Certiorari in RAPUNZEL Consumer Standing Case

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

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

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

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

TTAB Upholds Surname Refusal of GOLIA for Candy

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

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

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

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

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

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

And so, the Board affirmed the refusal.

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

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

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

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

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

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

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

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

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

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

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

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

TTABlog Test: Is SEAFISH Merely Descriptive of Seafood?

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

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

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

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

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

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

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

And so, the Board affirmed the refusal.

Read comments and post your comment here.

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

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