The TTABlog®

Rejecting Extrinsic Evidence, TTAB Finds FUNTASYA Confusable with FUNTASIA ADULT SHOP for Clothing and Retail Store Services

2026-07-10T06:03:19.724-04:00

The Board sustained a Section 2(d) opposition to registration of the mark FUNTASYA for various clothing items and online retail services featuring clothing, concluding that confusion is likely with the registered mark FUNTASIA ADULT SHOP in the logo form shown below, for "Retail store and online retail store and wholesale store services featuring adult products, videos, DVDs, magazines, toys, novelties, lingerie and leather clothing" [ADULT SHOP disclaimed]. The Board found the marks to be "overall similar," and the goods/services overlapping, rejecting applicant's attempt to import restrictions into the identification of goods "based on alleged real world conditions." In re Stefan Thaler, Serial No. 79395386 (July 7, 2026) [not precedential] (Opinion by Judge Christen M. English).

The Marks: The Board unsurprisingly found FUNTASIA to be the dominant part of the cited mark "because it is the first literal element in the mark and it is displayed in a much larger font than THE ADULT SHOP, which has been disclaimed." As to the words FUNTASYA and FUNTASIA, "[a]verage consumers with a general recollection are unlikely to notice or remember the one letter difference in the last syllable of the words." Since applicant’s mark is in "block letter" form, it "may be displayed in a font style similar to the font style used for the term FUNTASIA in the Cited Mark, which would increase the visual similarity between the marks." The two words are likely to be pronounced the same way.

This similarity in sound is significant because FUNTASIA is the dominant element in the Cited Mark. Indeed, consumers may drop the non-distinctive phrase THE ADULT SHOP when referring to Registrant’s services.

FUNTASYA and FUNTASIA both call to mind the words “fantasia” and “fantasy,” with the registered mark carrying "a connotation and commercial impression of a fantasia or fantasy of a fun, sexual nature." Nonetheless, "the marks still share a similar general connotation and commercial impression related to a fun fantasia or fantasy."

To the extent that for some consumers the marks do not call to mind the words “fantasia” or “fantasy,” the marks will be perceived as coined terms with no particular meaning. Because the dominant term FUNTASIA in the Cited Mark is nearly identical to Applicant’s coined mark FUNTASYA, the marks would likely be perceived the same, albeit with the Cited Mark conveying an added sexual connotation

The Board concluded that consumers are likely to perceive applicant's mark "as a variation of the Cited Mark identifying a line extension or to otherwise mistakenly believe that Applicant’s goods and services are associated with or sponsored by Registrant."

The Goods/Services: Applicant argued that registrant’s services, trade channels are limited to sexual products sold through adult sex shops and to consumers seeking intimate products that are purchased only after age verification. The Board, however, pointed out that there are no such restrictions in the cited registration.

Registrant’s identification does not include any limitations on the nature of these services, the trade channels through which they are sold or the relevant consumers. Nor may we consider extrinsic evidence on how Registrant uses its mark to narrow these services.

The Board focused its analysis on registrant’s “retail store and online retail store and wholesale store services featuring … leather clothing.” Applicant's goods are "clothing, namely, shirts, pants, hats, shorts, jerseys, hoodies," an identification broad enough to encompass leather shirts and pants. Because services featuring leather clothing encompass a subset of applicant’s goods, namely, leather pants and shirts, "here is overlap on the face of Applicant’s Class 25 and Registrant’s Class 35 identifications."

Applicant’s Class 35 services include “retail online store services featuring clothing; retail and wholesale online store services featuring clothing.” These services are broad enough to encompass Registrant’s “retail and online retail store and wholesale store services featuring … leather clothing.”

As to applicant's clothing items, where “one party uses its mark on goods that are sold in retail [and wholesale] stores that customarily vend those goods, it is clear that the trade channels and customers overlap.” With respect to the services, because they are in-part legally identical and there are no restrictions as to trade channels or consumers in the identifications, the Board presumed that the identical services travel through the same channels of trade to the same purchasers.

As to purchaser care, applicant asserted that "it is self-evident that the respective purchasers of Applicant’s and Registrant’s goods and services exercise entirely different levels of discernment." "Again, this argument relies on a restriction (goods sold through an adult sex shop) that is not identified in Registrant’s identification.

Finding that none of the DuPont factors favored applicant, it sustained the opposition.

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TTABlogger comment: Do you think there is any likelihood of confusion in the real world?Should applicant seek restriction of the registration under Section 18?

Text Copyright John L. Welch 2026.

TTAB Finds BALLETCOLLECTIVE to be Generic for . . . . . Guess What?

2026-07-09T06:01:15.624-04:00

The Board upheld a refusal to register the proposed mark BALLETCOLLECTIVE for entertainment services in the nature of dance and ballet performances, finding the term to be generic for the services. The applicant argued that the lack of a space between the words was significant, but that argument fell flat. In re BalletCollective Inc., Serial No. 97567146 (July 7, 2026) [not precedential] (Opinion by Judge Thomas. W. Wellington).

There was no disagreement that the genus at issue was defined by the recitation of services in the application, which the Board summarized as "entertainment services in the nature of dance and ballet performances." The relevant consumers are "ordinary purchasers, or attendees, of entertainment services in the nature of dance and ballet performances." The question then was "whether these consumers understand BALLETCOLLECTIVE as primarily referring to a class or category of entertainment services in the nature of dance and ballet performances."

Relying on dictionary definitions of the constituent terms, evidence of third-party use of "ballet collective(s)" in connection with ballet performances and entertainment, and use of that term as part of third-party trademarks and trade names, Examining Attorney Amy E. Thomas contended that "the relevant consuming public would understand the term BALLETCOLLECTIVE to refer primarily to a group providing ballet performances and related ballet services including the other services listed in the application."

Applicant argued that the evidence showed use of the component terms only with a space between them, not in a compound form. The Board pooh-poohed that argument, noting the Supreme Court's statement in Booking.com that "[a] compound of generic elements is generic if the combination yields no additional meaning to consumers capable of distinguishing the goods or services."

The words “ballet” and “collective” retain their same defined meanings despite being joined—and consumers will not discern any additional non-generic meaning as a result of their joinder. Rather, the relevant consumers will easily and readily understand BALLETCOLLECTIVE as merely an expression of a “ballet collective,” without the space, and a reference to the genus of services. Simply put, the proposed compound mark, BALLETCOLLECTIVE, conveys the same generic meaning to consumers as the sum its generic component terms—”the entire formulation does not add any meaning to the otherwise generic mark.” See Steelbuilding, 415 F.3d at 1297.

Applicant also pointed to its actual use of the mark in the form "BalletCollective," with the first letter in each component term capitalized. The Board took a different view: "[t]o the contrary, capitalizing the first letter of each word further assists consumers to more quickly identify each generic term. In any event, applicant sought registration of a mark in standard character form, not in the form used by applicant.

[T]he evidence of use of the term BALLET COLLECTIVE in third-party marks or trade names, along with source-identifying matter, e.g., “Ignite Ballet Collective” and “Deep South Ballet Collective,” further establishes that this is a term readily used by others in connection with ballet performances. In other words, the evidence proves that the relevant public perceives BALLETCOLLECTIVE primarily as the genus of services rather than as a source identifier.

The Board agreed with the examining attorney that applicant’s own description of its services on its website was probative and corroborated the genericness of the proposed mark: Applicant describes itself as a "non-profit art collective, "consist[ing] of a rotating group of artists and collaborators" and "with each new collective," it offers entertainment services in the nature of "ballet-based works."

And so, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: If you looked in a telephone directory, would you find a heading "ballet collectives?"

Text Copyright John L. Welch 2026.

TTABlog Test: How did These Three Recent Section 2(d) Appeals turn out?

2026-07-08T06:28:03.336-04:00

TTAB affirmances of Section 2(d) refusals are running at about 84% so far this year. Here are three recent decisions. How do you think they came out? [Answer in first comment].

In re AM Hospitality, LLC, Serial No. 98891881 (June 30, 2026) [not precedential] (Opinion by Judge Elizabeth K. Brock). [Section 2(d) refusal of the mark SIDE PIECE PIZZA for "restaurant featuring pizza" [PIZZA disclaimed] in view of the registered mark SIDE PIECE, in standard character form, for "Food and drink catering; Preparation of food and beverages; Providing of food and drink; Restaurant services, namely, providing of food and beverages for consumption on and off the premises; all of the foregoing excluding services involving pizza, private labeled beer, and/or breweries."]

In re GE Precision Healthcare LLC, Serial No. 98098739 (July 6, 2026) [not precedential] (Opinion by Judge Jennifer L. Elgin) [Section 2(d) refusal of the mark OMNI for "Medical apparatus and instruments for use in positron emission tomography/computed tomography (PET-CT) imaging" in view of the registered mark OMNITOM for "computed tomography (CT) imaging machines."]

In re Nawkaw, Inc., Serial No. 98499982 (July 6, 2026) [not precedential] (Opinion by Judge David K. Heasley). [[Section 2(d) refusal of the mark ECOTONE for "Coating compositions in the nature of paint, namely, clear and pigmented coatings specifically formulated for application to concrete and masonry surfaces by professionals, not for retail sale or consumer use, and not for use on wood surfaces" in view of the registered mark ECO-TONES for "interior and exterior stains, sealers and coatings for roofs, siding and timber; wood preservatives; restorative preparations in the nature of stains for wood; and coatings for wood, namely, stains, coatings, sealers, preservatives and restoratives in the nature of stains."]

Read comments and post your comment here.

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

Text Copyright John L. Welch 2026.

Precedential No. 5: Blue-and-White Stripes Trade Dress Lacks Inherent and Acquired Distinctiveness, Says TTAB

2026-07-07T06:47:53.421-04:00

The Board upheld a refusal to register a design comprising parallel blue and white stripes (shown below) for frozen confections and confections, fruit drinks, alcoholic beverages, franchising services, and restaurant services (in six classes), finding that the proposed mark is not inherently distinctive and lacks acquired distinctiveness. The Board observed that Applicant Ralph's "blue & white stripes are simply a refinement or variation of the common practice of using alternating colored stripes." As to acquired distinctiveness, "the plethora of third-party uses of blue & white or similar stripes in connection with the same goods and services presents a nearly insurmountable hurdle for any such effort to succeed because they show that such use has not been ‘substantially exclusive.’” In short, “Applicant has not come anywhere close to proving its alternative claim that the proposed trade dress has acquired distinctiveness." In re Ralph’s Famous Italian Ices Franchise Corp., 2026 U.S.P.Q.2d 553 (TTAB 2026) [precedential] (Opinion by Judge Thomas L. Casagrande).

"The mark consists of a repeating pattern of alternating blue and white vertical stripes, which are of equal width and proportion. The repeating pattern appears on a portion of the surface of the goods, on a portion of the packaging for the goods, on a portion of the building facades in which the services are offered, and on displays, marketing and advertising materials associated with the services."

Inherent Distinctiveness: Product packaging trade dress may qualify as inherently distinctive, depending on the evidence. See, e.g., Two Pesos, 505 U.S. at 773-74 (restaurant décor); In re Chippendales USA, Inc., 622 F.3d 1346, 1351 (Fed. Cir. 2010) (design of a costume worn by a service provider, i.e., “trade dress” constituting the “packaging” of the service). Whether such trade dress is inherently distinctive requires an assessment of:

whether it was a ‘common’ basic shape or design,
whether it was [not] unique or unusual in the particular field,
whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods [or services] viewed by the public as a dress or ornamentation for the goods [or services], or
whether it was capable of creating a commercial impression distinct from the accompanying words.

Chippendales, 622 F.3d at 1351 (quoting Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (CCPA 1977)). If the answer to any of the first three Seabrook inquiries is “yes,” the design is not inherently distinctive.

In In re Fantasia Distrib., Inc., No. 86185623, 2016 WL 5866950 (TTAB 2016), the Board adapted and applied this test to a design constituting a repeating ornamental pattern on goods, as follows:

the nature of Applicant’s goods and whether there is an industry practice of ornamenting such goods;
the nature of the pattern, including whether any element of the pattern might be perceived as source indicating if it were standing alone;
how common the pattern is, whether it is composed of common or unusual repeating shapes, whether such shapes repeat in a common or unusual manner, and whether the overall pattern is similar to, or a mere refinement or variation of, a common and well-known form of ornamentation;
the manner in which the repeating pattern appears on the product, including the size and location of the pattern on the product and how much of the product is covered by the pattern; and
whether the pattern creates a distinct commercial impression apart from any accompanying wording and design elements.

As to each class of goods and services, the Board considered the substantial third-party evidence submitted by Examining Attorney Hai-Ly Lam. With respect to the goods in classes 29 and 30 and the restaurant services in class 43, the evidence "overwhelmingly " showed that Ralph's blue-and-white stripes "are simply a refinement or variation of the common practice of using alternating colored stripes." As to the beverages in classes 32 and 33 and the franchising services in class 35, the evidence was not as voluminous but nonetheless showed that "stripes generally are a rudimentary form of ornamentation and Applicant uses them in an unremarkable way."

Acquired Distinctiveness: Because the evidence showed that stripe trade dress is a commonly-used form of ornamentation, Ralph's faced a "nearly insurmountable hurdle" to prove acquired distinctiveness. Its evidence fell far short.

Ralph's claimed 20 years of sales and $100 million in revenues under the proposed mark, and expenditures of $2 million in advertising, but the evidence was neither segregated by product or service nor placed in context vis-a-vis its competitors. There was no "look-for" advertising, no "direct attempt to educate consumers that the stripes trade dress indicates a unique source for the relevant goods and services," and no evidence as to the effectiveness or success of its alleged efforts to create the required unique association.

But even if Applicant had made concerted efforts to educate consumers to regard the stripe pattern as uniquely indicating Applicant’s goods and services, the plethora of third-party uses of blue & white or similar stripes in connection with the same goods and services presents a nearly insurmountable hurdle for any such effort to succeed because they show that such use has not been “substantially exclusive.” See, e.g., Levi Strauss, 742 F.2d at 1403; Ayoub, 2016 WL 4474509, at *13. We find that Applicant has not come anywhere close to proving its alternative claim that the proposed trade dress has acquired distinctiveness.

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TTABlogger comment: Judge Casagrande's opinions are always down-to-earth and easy reading, albeit this one is a bit long (66 pages).

Text Copyright John L. Welch 2026.

TTABlog Quarterly Index: April - June 2026

2026-07-06T06:35:47.395-04:00

E-mail subscriptions to the TTABlog are available. Just enter your e-mail address in the box on the right to receive a daily update via Feedblitz. Please report any broken or inoperative links, as well as any errors and omissions, to the TTABlogger at jwelch at wolfgreenfield.com.

Section 2(a) - False Suggestion of a Connection:

Precedential No. 4: TTAB Affirms Refusal of WEMBY for Athletic Apparel - False Connection with and Lack of Consent from the real Wemby

Section 2(b) - Flag/Coat of Arms/Insignia:

TTAB Upholds Section 2(b) Refusal: PROSCIUTTO DI CARPEGNA Mark Includes Italian Flag or Simulation Thereof

Section 2(c) - Consent to Register:

Precedential No. 4: TTAB Affirms Refusal of WEMBY for Athletic Apparel - False Connection with and Lack of Consent from the real Wemby

Section 2(d) - Likelihood of Confusion:

Section 2(e)(1) - Mere Descriptiveness:

Section 2(e)(2) - Primarily Merely Geographically Descriptive:

TTAB Affirms Bifusal of THE OHIO IPA for Beer: Geographically Descriptive and Confusable with OHIO PALE ALE for Beer

Section 2(e)(4) - Primarily Merely a Surname:

TTAB Upholds Surname Refusal of GOLIA for Candy

Section 23(c) - Functionality:

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

Abandonment/Nonuse/Specimen of Use:

Non-distinctiveness:

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

Genericness:

Lack of Bona Fide Intent:

TTAB Sustains Nike's Opposition to BLUE RIBBON TEAM for Sports Stores Due to Lack of Bona Fide Intent

Reexamination:

Discovery/Evidence/Procedure:

CAFC Decisions:

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

Supreme Court Decisions:

Supreme Court Denies Petition for Certiorari in RAPUNZEL Consumer Standing Case

Recommended Reading:

Other:

Text Copyright John L. Welch 2026.

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

2026-07-03T06:17:17.800-04:00

TTAB affirmances of Section 2(d) refusals are running at about 84% so far 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 Connecting Forward, LLC, Serial No. 97565017 (June 26, 2026) [not precedential] (Opinion by Judge Robert Lavache). [Section 2(d) refusal of the mark MISTER JUNETEENTH, for “Organizing events in the field of pageants for cultural or educational purposes; Entertainment in the nature of pageant competitions" [JUNETEENTH disclaimed], in view of the registered marks JUNIOR MISS JUNETEENTH [JUNIOR and JUNETEENTH disclaimed], TEEN MISS JUNETEENTH [TEEN and JUNETEENTH disclaimed], and MISS JUNETEENTH SCHOLARSHIP PAGEANTRY PROGRAM [JUNETEENTH SCHOLARSHIP PAGEANTRY PROGRAM disclaimed] for “Entertainment in the nature of pageant competitions; organization of events for cultural purposes; organization of events in the field of pageants for educational purposes."]

In re Kayed Lafi, Serial No. 98191310 (June 30, 2026) [not precedential] (Opinion by Judge David K. Heasley) [Section 2(d) refusal of the mark GALLO'S ELITE PERFORM LIKE A PRO & design, shown below left [PRO disclaimed], in view of the registered mark GALLO GLOBAL NUTRITION & design, shown below right [GLOBAL NUTRITION disclaimed], both for nutritional supplements.]

In re NowOne Ventures, LLC, Serial No. 98757552 (June 30, 2026) [not precedential] (Opinion by Judge Lawrence T. Stanley, Jr.). [[Section 2(d) refusal of the mark OMMI for "Vitamins; Dietary supplements; Herbal supplements; Nutritional supplements; Gummy vitamins; Mineral supplements" in view of the registered mark OMMIE for "Grain-based food bars also containing dried fruits and seeds."]

Read comments and post your comment here.

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

Text Copyright John L. Welch 2026.

TTAB Posts July 2026 Hearing Schedule

2026-07-01T06:22:49.010-04:00

The Trademark Trial and Appeal Board (Tee-Tee-Ā-Bee) has scheduled six (6) oral hearings for the month of July 2026. In the first and third cases listed below, the hearings will held in-person at the Madison East Building 600 Dulany Street, 9th Floor (Hearing Room C), Alexandria, VA. The rest will be held virtually. Briefs and other papers for each case may be found at TTABVUE via the links provided.

July 8, 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.]

July 16, 2026 - 11:00 AM [Virtual]: Airbnb, Inc. v. AirEase,LLC, Opposition No. 91287634 [Opposition to registration of the mark AIREASE for "Downloadable mobile applications for the connection of short-term rental seekers and hosts offering last-minute and overflow lodging and transportation opportunities" on the grounds of likelihood of confusion with, and likely dilution of, the registered mark AIRBNB for arranging temporary housing accommodations, and related software and services.]

July 16, 2026 - 2:00 PM [In-Person]: In re Sozosei Foundation, Serial No. 97351330 [Refusal to register the mark MENTAL ILLNESS IS NOT A CRIME on the ground of failure-to-function as a source indicator for publications and services in the field of mental health and mental illness.]

July 22, 2026 - 12:00 PM [Virtual]: In re ALLCITY Network, Inc., Serial No. 98209334 [Section 2(d) refusal of the mark KNUX for "Clothing, namely, t shirts, polos, tanks, sweatshirts, hoodies, jackets; headwear, namely, sports caps and hats," in view of the registered mark NUX for, inter alia, sport shirts, t-shirts, sweatshirts, shirts, tank tops, and caps.]

July 22, 2026 - 2:00 PM [Virtual]: Matos Insurance Agency, Inc. and Armando J. Matos v. Mattos Insurance, Inc., Cancellation No. 92082310 [Petition for cancellation of a registration for the mark MATTOS INSURANCE for "Insurance agency and brokerage" [INSURANCE disclaimed] on the ground that the mark is primarily merely a surname and lacks acquired distinctiveness.]

July 29, 2026 - 2:00 PM [Virtual]: In re Joshua James Waldrop, Serial No. 97691670 [Section 2(d) refusal to register the mark ULTIMA PRO WRESTLING UPW for " Entertainment services in the nature of creation, development, and production of television programming; Entertainment, namely, a continuing professional wrestling show broadcast over television, satellite, and internet.; Entertainment services, namely, wrestling exhibits and performances by a professional wrestler and entertainer" [PRO WRESTLING disclaimed] in view of the registered mark ULTIMA LUCHA for "Entertainment services, namely, an ongoing television series featuring sports entertainment broadcast over television, satellite, audio and video media and via a global computer network; entertainment services, namely, live events featuring wrestling contests and exhibitions; entertainment services, namely, performances by a professional wrestler and entertainer; providing wrestling news, information and non-downloadable video via a global computer network" [LUCHA disclaimed].]

Read comments and post your comment here.

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

Text Copyright John L. Welch 2025.

Precedential No. 4: TTAB Affirms Refusal of WEMBY for Athletic Apparel - False Connection with and Lack of Consent from the real Wemby

2026-06-30T07:02:21.414-04:00

The Board upheld a refusal to register the proposed mark WEMBY for "athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms," finding that the mark falsely suggests a connection with NBA star Victor Wembanyama under Section 2(a), and that applicant lacked a consent from Mr. Wembanyama under Section 2(c). Applicant mainly argued that, based on the constructive first use date of its application (January 12, 2023), it should be deemed the prior user of WEMBY, since Wembanyama was little known before being drafted by the San Antonio Spurs in the summer of 2023. In re Wemby Corporation, 2026 U.S.P.Q.2d 548 (TTAB 2026) [precedential] (Opinion by Judge Thomas. W. Wellington).

Section 2(a) - False Connection: Section 2(a), in pertinent part, bars registration of a mark that "consists of or comprises . . . matter which may . . . falsely suggest a connection with persons . . . ." To establish that a proposed mark falsely suggests a connection with a person or institution, it must be shown that:

(1) The mark is the same as, or a close approximation of, the name or identity previously used by another person or institution;
(2) The mark would be recognized as such, in that it points uniquely and unmistakably to that person or institution;
(3) The person or institution named by the mark is not connected with the activities performed by the applicant under the mark; and
(4) The fame or reputation of the person or institution is such that, when the mark is used with the applicant’s goods or services, a connection with the person or institution would be presumed.

In re Foster, 136 F.4th 1090, 1094 (Fed. Cir. 2025) [Emphasis added].

There was no dispute as to the third element of the test: Victor Wembanyama is not connected with the applicant. As to the first element, the evidence established that "Wemby" is Victor Wembanyama's nickname. The Board found that "the record is clear that WEMBY was previously used to identify Mr. Wembanyama," including articles reflecting "the public attention accorded to Mr. Wembanyama at that time and indicate an excitement for the upcoming 2023 NBA season and potential sensation he would make as a top draft pick."

As to the second element, the Board considered all the evidence submitted "during the examination process," as approved by the CAFC in Foster, and found that WEMBY "is a well-recognized nickname that points uniquely and unmistakably to Mr. Wembanyama."

As to the fourth element, the Board concluded that "[g]iven Mr. Wembanyama’s demonstrated fame as an NBA player and his inherent and demonstrated relationship with athletic apparel like that described in the application, . . . consumers would presume a connection with Mr. Wembanyama upon encountering use of WEMBY on these goods."

And so, the Board found that applicant’s mark WEMBY falsely suggests a connection with Mr. Wembanyama, as prohibited under Section 2(a) of the Act.

Section 2(c) Consent Section 2(c) of the Act prohibits registration of a mark that "[c]onsists of or comprises a name … identifying a particular living individual except by his written consent . . . ." “[T]he Board has set forth two ways to show that a ‘name’ identifies a particular living individual for purposes of Section 2(c): 1) if the person is so well known that the public would reasonably assume the connection, or 2) if the person is publicly connected with the business in which the mark is being used." The Board found that both elements of the test were met here.

First, "Mr. Wembanyama’s fame as the 2023 NBA first draft pick, and reference to him as 'Wemby' is such that the public would reasonably assume a connection between Applicant’s WEMBY mark and Mr. Wembanyama." Second, "he has also been publicly associated with goods identified in the application, including his debut of a new Nike shoe and the sale of sports apparel bearing his name." Moreover, it is common knowledge that the NBA is well-known for marketing athletic apparel. "Thus, as an NBA basketball player, Mr. Wembanyama is “publicly connected” with the business of Applicant’s identified athletic apparel and footwear."

And so, the Board found that applicant’s proposed mark, WEMBY, identifies a particular living individual, Victor Wembanyama, whose written consent is not of record. Therefore, the Board affirmed the Section 2(c) refusal.

Read comments and post your comment here.

TTABlogger comment: The discussion about prior use is of questionable relevance. The TTAB in its (non-precedential) Foster decision stated: "[P]rior use in the context of a false suggestion of a connection is not a question of priority as contemplated in a likelihood of confusion context. Indeed, prior use 'may be found when one’s right to control the use of its identity is violated, even if the name claimed to be appropriated was never commercially exploited as a trademark or in a manner analogous to trademark use.'" The CAFC in Foster did not consider this point but instead ruled on whether evidence after the filing of the application could be considered for purposes of the Section 2(a) refusal. The CAFC said yes.

The Board here found it unnecessary to consider the issue of intent, but for this observer it is difficult to imagine that the applicant came up with his mark out of the blue.

Text Copyright John L. Welch 2026.

Precedential No. 3: Ownership of Lapsed Registration No Justification for New Application for Same Mark and Goods/Services

2026-06-29T06:44:35.977-04:00

Foreign owners of registrations based on Section 44 or 66 should pay close attention to this decision. The Board affirmed a Section 2(d) refusal of the mark TOUCH MOBILE for telecommunications equipment and telecommunications services [MOBILE disclaimed], concluding that confusion is likely with the registered mark MOBILE TOUCH for "Text and numeric wireless digital messaging services; Broadcast communication services, namely, transmitting text messages to designated recipients for others." Applicant TextNow owned a registration for TOUCH MOBILE for the same goods and services, but while the new application was pending TextNow failed to file its Section 8 Declaration. The cited registration had issued prior to the lapsed registration, but the Board ruled that their coexistence was irrelevant to the examination of the new application. In re TextNow Inc., 2026 U.S.P.Q.2d 545 (TTAB 2026) [precedential] (Opinion by Judge Jessica B. Bradley).

TextNow's prior registration issued on October 17, 2017 under Section 44(e) of the Trademark Act. That registration was cancelled by operation of law as of the end of the sixth anniversary of the registration date, October 17, 2023, for failure to file a Declaration of Use and/or Excusable Nonuse Under Section 8 of the Act. TextNow filed its new application on October 19, 2023, during the prior registration's grace period.

TextNow contended that ownership of the prior registration, which (it unsuccessfully claimed) remained in force at the time its new application was filed, was relevant to the registrability of its identical mark of the new application, specifically under the doctrine of res judicata and pursuant to the Board's Strategic Partners decision. The Board disagreed.

The Board distinguished this case from Strategic Partners because there, the prior registration was still in force when the new application was filed, and the prior registration was more than five years old and could not be challenged on the ground of likelihood of confusion. Moreover, in Strategic Partnersthe mark of the prior registration had been in actual use, whereas here it appeared that TextNow's mark had never been used. Thus, TextNow's mark and the cited mark had never co-existed in the marketplace.

Simply put, co-existence of marks on the trademark register does not equate to co-existence in the marketplace, and the notion of “co-existence” of these marks specifically in the marketplace is illusory where the Prior Registration and current application are both based on Section 44(e), not use in commerce.

The Board concluded that the six years of co-existence between TextNow's lapsed registration and the cite registration "holds less weight than that in Strategic Partners."

TextNow asserted that the examining attorney "would presumably have determined that the mark TOUCH MOBILE is registrable if the Examining Attorney had had a shorter backlog of applications to review and had therefore considered [Applicant’s] application just five (5) months after its filing date rather than about 7-1/2 months after its filing date [i.e., before Applicant’s Prior Registration was cancelled]." The Board was unmoved.

Applicant had already missed the October 17, 2023 deadline to file a Section 8 Declaration to maintain its Prior Registration, and subsequently failed to file a Section 8 Declaration by the April 17, 2024 grace period deadline. As a result, the current application did not overlap with the term of the Prior Registration. While the timing is unfortunate for Applicant, the maintenance of its Prior Registration was entirely within its control.

As for TextNow's res judicata argument, the Board pointed out that re judicata does not apply in the prosecution context, and "there is no rule that a prior registration entitles [an applicant] to another registration." In re Country Oven, Inc., 2019 TTAB LEXIS 381, at *23 (TTAB 2019).

Turning to the Section 2(d) refusal, the Board found the involved marks to be "highly similar and this weighs heavily in our analysis." The goods and services are in-part identical or closely related, and the trade channels and classes of consumers are presumed identical or overlapping. The factors regarding the strength or weakness of the cited registration and TextNow's prior registration (factor 13) were deemed neutral

And so, the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: Foreign owners of non-use based U.S. registrations may want to file new applications earlier than later when they know their marks have not been used in the U.S., so that examination of the new application will occur before the prior registration lapses.

Text Copyright John L. Welch 2026.

TTAB Reverses Specimen Refusal: User Manual and Calibration Kit Suffice for Agricultural Machinery

2026-06-26T07:13:36.029-04:00

The Board overturned a refusal to register the mark ONETOUCH for "Agricultural machines, namely, aerators, seeders, spreaders," finding that Applicant Stinger's specimens of use were acceptable. The examining attorney maintained that the specimens did not show use of the mark in connection with the identified agricultural equipment, but rather with a separately “downloadable software application." Stinger pointed to the user manual and calibration kit that accompanied each machine. In re Stinger Equipment, Inc., Serial No. 97662066 (June 24, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande).

Rule 2.56(b)(1), requires that the specimen “show use of the mark on the goods, on containers or packaging for the goods, on labels or tags affixed to the goods, or on a display associated with the goods Stinger did not disagree that ONETOUCH is used in connection with the app, downloadable from an “app store” on Stinger’s website, which enables users to remotely operate and/or control aspects of the agricultural machines. In other words, the app is needed to operate the machine.

In assessing specimens, the Board considers not only the information discernible on the specimen itself, but also “any explanations offered by Applicant clarifying the nature, content, or context of use of the specimen that are consistent with what the specimen itself shows.”

The specimens, which bear the ONETOUCH mark and comprise a user manual for the machine’s calibration system and a ONETOUCH calibration kit, together with Applicant’s explanation, make it clear that ONETOUCH identifies not just an “app” that has software, but also an integral aspect of Applicant’s agricultural machines, without which the machines cannot be operated as designed. The fact the specimens suggest that ONETOUCH hypothetically also could serve as a mark for downloadable software as well does not detract from the fact that ONETOUCH is being used as a mark for an operating system integral to Applicant’s agricultural machines.

The Board was satisfied that "the asserted mark has been used as a trademark with respect to the goods named in the application." and so it reversed the refusal.

Read comments and post your comment here.

TTABlogger comment: So are these two items "display[s] associated with the goods?"

Text Copyright John L. Welch 2026.

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

2026-06-25T06:52:04.297-04:00

TTAB affirmances of Section 2(d) refusals are running at about 85% so far this year, a bit below the usual 90%. Here are three recent decisions. How do you think they came out? [Answer in first comment].

In re ASP Global, LLC, Serial No. 98391245 (June 11, 2026) [not precedential] (Opinion by Judge Angelo Lykos) [Section 2(d) refusal of the mark shown below left, for, inter alia, "Hospital patient amenity kits comprised of non-medicated personal care items in the nature of hair shampoos and conditioners, body lotions, body washes, non-medicated mouth washes, lip balms, personal deodorants, toothpastes," in view of the registered mark shown below right for cosmetics and hair care products.]

In re ParanoidLab Inc., Serial No. 98391360 (June 22, 2026) [not precedential] (Opinion by Judge Thomas. W. Wellington). [Section 2(d) refusal of the mark PARANOIDLAB for, inter alia, "Software as a service (SAAS) services featuring software for scanning and monitoring the Internet to detect private information that has been compromised or disseminated … scanning and monitoring the Internet to detect the use of specific keywords … [and] for detecting identity theft," in view of the registered mark PARANOID for "providing temporary use of online non-downloadable security software."]

In re Ryan Morar, Serial Nos. 98088555 (June 23, 2026) [not precedential] (Opinion by Thomas L. Casagrande). [Section 2(d) refusal to register the mark JETPACK HOM(M)E for “Shirts, pants, sweaters, dresses, skirts, shoes; Outerwear, namely, coats, jackets, anoraks, parkas, blazers, hooded sweatshirts, windbreakers, rain jackets [HOMME” disclaimed] in view of the registered mark JETPACK for "Backpacks; All-purpose carrying bags."]

Read comments and post your comment here.

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

Text Copyright John L. Welch 2026.

Today! TTAB Case Update: New York IP Law Assn - June 24th at Noon

2026-06-24T06:16:00.000-04:00

The TTABlogger will present a TTAB Case Update at the New York Intellectual Property Law Association's Seminar entitled "Hot Topics in Trademark and Copyright Law," on June 24th. Details here.

Read comments and post your comment here.

Text Copyright John L. Welch 2026.

Despite Weakness of "GLORIA" as a Formative, TTAB Upholds 2(d) Refusal of GLORIA & Design for Italian Restaurant Services

2026-06-23T06:09:31.259-04:00

The Board affirmed a refusal to register the mark GLORIA in the design form shown below, for "providing of food and drink featuring modern Italian cuisine," concluding that confusion is likely with the registered mark GLORIA'S (in standard character form), for "restaurant and bar services." The Board found the services to be legally identical (since Italian cuisine is encompassed by registrant's services) and therefore it presumed that they are offered in the same trade channels to the same classes of consumers. Applicant Big Mamma contended that GLORIA is a weak and commonly used term in connection with restaurants and that the additional elements (stylization and color scheme) differentiate the marks. The Board didn't buy it. In re Big Mamma SAS, Serial No. 98400652 (June 18, 2026) [not precedential] (Opinion by Judge Cheryl S. Goodman).

As to the weakness of the cited mark, the Board noted that it is registered on the Principal Register without a claim of acquired distinctiveness and is considered inherently distinctive. Big Mamma provided seven GLORIA composite third-party registrations (some include a design) for restaurant services or for the services of providing food and drink. It provided pages from the websites of these third-party registrants to show that the marks are in use.

Big Mamma also submitted evidence of 25 uses of GLORIA by third parties in connection with restaurant services, most (22) combined with descriptive or generic wording. "This third-party registration and use-based evidence is probative of the conceptual weakness of GLORIA/GLORIA’S in connection with restaurant services. [What concept does the word "Gloria" engender in connection with restaurant services? - ed.]

The above listed registrations and third-party uses of GLORIA/GLORIA’S in connection with restaurant services are probative of some commercial weakness of the term GLORIA. However, it is not clear whether multiple GLORIA/GLORIA’S restaurants exist in the same trading area such that consumers have been conditioned to distinguish among them.

In sum, the Board found that the term GLORIA/GLORIA’S, when used in connection with restaurant services, "is conceptually weak and has some commercial weakness."

Turning to the marks, the Board once again observed that when a mark comprises both word(s) and a design, the literal portion is normally accorded greater weight because it will be used by purchasers to request the services. Here, the dominant element in Big Mamma’s mark is (obviously) the literal portion, GLORIA. Also, because the cited mark GLORIA’S is registered in typed form, "it may be displayed in any manner, including in the same size, font, and color as GLORIA in Applicant’s mark, which includes the swash or terminal flourish on the end of the letter 'a'."

Of course, the addition of the apostrophe and letter “s” to the cited mark GLORIA has "little significance as a distinguishing element in the marks." "The rectangular design feature of Applicant’s mark that surrounds GLORIA and frames it forms a background or 'carrier”' and is not considered a distinctive element."

In sum, considering the marks in their entireties, the design and color elements in Applicant’s mark fail to sufficiently distinguish the marks and is outweighed by the identical presence of GLORIA/GLORIA’S in both marks. We find the marks similar in overall appearance, sound, connotation and commercial impression.

The sixth DuPont factor weighed against confusion. "But in weighing the impact of the sixth factor, "we keep in mind that 'even weak marks are entitled to protection against registration of similar marks' for identical services."

And so, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: G-L-O-R-I-A !

Text Copyright John L. Welch 2026.

TTAB Reverses 2(d) Refusal of GHOST AGENCY & Design for Advertising Services due in part to a Crowded Field of "GHOST" Marks

2026-06-22T06:26:16.737-04:00

The Board overturned a Section 2(d) refusal to register the mark GHOST AGENCY & Design for various advertising and marketing services [AGENCY disclaimed], concluding that confusion is unlikely with the registered mark shown second below, for "Advertising and marketing services." The involved services overlap, and to that extent are presumed to travel through the same trade channels to the same classes of consumers. But the differences in the marks and the weakness of GHOST as a formative led to success for the applicant. In re The Ghost Agency, Inc., Serial No. 98709623 (June 18, 2026) [not precedential] (Opinion by Judge Martha B. Allard).

Applicant argued that the cited mark is "relatively weak because it is highly suggestive of a characteristic of the underlying services[,]" and because it coexists with sixty-three registered GHOST-formative marks. The Board noted that the cited mark is registered on the Principal Register and is therefore presumably inherently distinctive, but nonetheless, distinctive marks may be conceptually and/or commercially weak.

According to applicant, "It is very common for companies that provide white label services for others to use the word “ghost” to refer to the anonymous nature of their services. Clients hire “ghost” agencies like Applicant to work behind the scenes to build and promote their brands. *** When viewed in connection with the marketing, advertising, and entertainment services being offered under the cited marks, then, the registered marks inform consumers that the services offered are meant to be white label services for others."

The Board disregarded many of the third-party registrations, leaving 12 registrations "in the name of eleven different entities that identify services that are identical to or encompassed by the services identified in the cited mark," including GHOST CUBE, GHOST GIRL, and THE WRITING GHOST.

[T]he record shows that the term GHOST is highly suggestive because it brings to mind a feature or purpose of the services for which the marks are registered–to render advertising and marketing services for and in the name of another. As a result, the term GHOST is conceptually weak when used with advertising and marketing services and entitled only to a narrow scope of protection. See Juice Generation, 794 F.3d at 1339.

Turning to a comparison of the marks, the examining attorney maintained that the word GHOST is the dominant element in applicant's mark, since AGENCY has been disclaimed, and that dominant element is identical to the dominant element in the cited mark. Not so fast, said the Board.

[W]e disagree that the cited mark makes the commercial impression of the word GHOST with a line through it. While we acknowledge that this understanding is consistent with the description of the mark, the description of the mark is not binding upon our determination since “[a] mark’s meaning is based on the impression actually created by the mark in the minds of consumers, not on the impression that the applicant states the mark is intended to convey.”

The Board found that the initial letter appears to be a lowercase “q”, not a lowercase “g.” "Thus, the mark makes the commercial impression of “Q HOST,” which suggests some sort of hosting, possibly web hosting, for example, that is commonly associated with websites, which are a common form of digital advertising and marketing."

The Board also found that that this stylized G, with its clean, crisp lines and contrasting colors, causes Applicant’s mark to make a different commercial impression than that of the cited mark.

Even were we to find that the cited mark engenders the commercial impression of GHOST with a line through it, rather than Q HOST, we would still find confusion is unlikely. This is because the record demonstrates that the term GHOST is conceptually weak and this conceptual weakness, when combined with the dissimilarity of the stylizations of the marks discussed above, would also be sufficient to find that confusion is not likely.

And so, the Board reversed the refusal.

Read comments and post your comment here.

TTABlogger comment: It did not occur to me that the cited mark could be read as "q host." But then, I already had the word "ghost" in my mind.

PS: why doesn't applicant's mark look like "c host?"

Text Copyright John L. Welch 2026.

TTAB Denies Petition for Cancellation of Giraffe Logo Registration: No Standing After Board Rejects Petitioner's Purported Testimony

2026-06-19T05:59:25.941-04:00

The Board denied a Section 2(d) petition for cancellation of a registration for the design mark shown here, for a raft of clothing items, ruling that Petitioner Wenbo Zhou failed to submit any admissible evidence in support of his entitlement to petition to cancel the registration. Mr. Zhou submitted a document entitled "Petitioner’s Evidentiary Submission Zhou Wenbo Transcript of Deposition on Written Questions," but the Board, after a detailed analysis, refused to consider that document for "multiple reasons." Wenbo Zhou v. Hangzhou Ai Xun Trade Co., Ltd., Cancellation No. 92082150 (June 17, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

Petitioner Zhou's Evidentiary Submission "purports to be some sort of trial testimony." Zhou characterized the document as both a "testimonial declaration on behalf of Petitioner" and as the "Zhou Wenbo Transcript of Deposition on Written Questions."

However, the Board found that it was not a proper declaration because it contained "no 'oath or affirmation to testify truthfully' acknowledged by the witness, Fed. R. Evid. 603, and no substitute declaration language referencing 18 U.S.C. § 1001 or 28 U.S.C. § 1746."

As to the characterization of the document as a deposition transcript, the Board noted the "absence of evidence that Mr. Zhou took an oath before participating in the “interview,” the lack of certification of the transcript by the person who recorded the "testimony," and the failure of the document to comply with any of the arrangement, indexing, and transcript form requirements.

Moreover, it was clear to the Board that the deposition on written questions was not conducted in English. "We are thus relying on the translation of the questions and answers from Chinese to English for the accuracy of Mr. Zhou’s testimony, but we have no information whatsoever regarding the translator, the process of translation, or the original Chinese-language questions and answers."

In the final analysis, although we are not certain exactly what the Evidentiary Submission is, we are quite certain about what it is not: sworn testimony in a proper deposition upon written questions, given by a witness testifying under oath before a qualified officer authorized to administer oaths, and translated from the witness’s native language into English by a qualified translator. Pursuant to Trademark Rule 2.123(k), we will not consider the Evidentiary Submission as evidence on behalf of Petitioner.

The Board observed once again that entitlement to a statutory cause of action (statutory standing) is a threshold requirement in every inter partes proceeding. Petitioner Zhou pointed to the allegations in his petition for cancellation regarding likelihood of confusion. The Board pointed out, however, that mere allegations are not enough:

Petitioner was required to “maintain [his] entitlement to the statutory cause of action throughout the proceeding and affirmatively prove its existence at the time of trial by introducing evidence to support the allegations in [his] pleading that relate to such entitlement as an element of [his] case-in-chief.” [Emphasis by the Board].

Since Mr. Zhou submitted no admissible evidence or testimony to prove his standing, the Board denied the petition for cancellation.

We are utterly mystified as to why Petitioner did not simply submit his sworn testimony declaration in appropriate Chinese-language and English-language versions, rather than going to the time and expense of taking a deposition on written questions in Indonesia, but “we must take the record as [Petitioner] made it.”

Read comments and post your comment here.

TTABlogger comment: Can the petitioner seek review by way of civil action, wherein new evidence is allowed? How would he introduce his testimony in a civil action?

Text Copyright John L. Welch 2026.

TTAB Denies REVO Cancellation Petition for Failure to Prove Standing

2026-06-18T05:21:46.136-04:00

The Board denied a petition for cancellation of a registration for the mark shown below for real estate brokerage services. Petitioner claimed that the mark had been abandoned. Neither party submitted evidence or testimony during the trial period and only petitioner filed a brief. The Board found that petitioner had failed to prove statutory standing, which alone was enough to justify denial of the petition. It also failed to provide any evidentiary support for its abandonment claim. Revo Holdings, LLC v. Revo Real Estate Inc. and RE Virtual Office Inc., Cancellation No. 92085621 (June 16, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande).

Petitioner did attach to its trial brief a set of interrogatories and document requests to which respondent had not responded. However, materials attached to a brief are not properly submitted evidence. Since respondent did not respond, they proved nothing anyway.

Of course, a plaintiff must prove its standing (i.e., its entitlement to a statutory cause of action) as a threshold matter in every inter partes proceeding. Petitioner did not address the issue in its brief. In its petition for cancellation it alleged only that it "believes it will be damaged by the continued registration of US Registration No. 4,066,391." It did not allege facts "which, if ultimately proven, would establish that petitioner has a real interest in the cancellation proceeding."

In addition to petitioner's deficient pleading, the Board reviewed respondent's answer and the file of its registration (which is automatically of record). However, neither contained "anything bearing on whether Petitioner has a reasonable belief in damage by continued registration."

Petitioner's failure to prove standing, by itself, required denial of the petition. Furthermore, the Board noted that the only admissible evidence in the case was the registration file and the pleadings, in which respondent denied abandonment. "Thus, there is no evidence supporting Petitioner’s sole claim that the mark has been abandoned." "This independently requires denial of the petition."

Read comments and post your comment here.

TTABlogger comment: This dog won't hunt.

Text Copyright John L. Welch 2026.

TTABlog Test: Is LIVIA JOLIE for Clothing Confusable with LIVIA & Design for Beachwear?

2026-06-17T06:05:22.950-04:00

The USPTO refused to register the mark LIVIA JOLIE for "Dresses; Pants; Shirts; Shorts; Skirts; Tops as clothing; Clothing jackets" [JOLIE disclaimed], concluding that confusion is likely with the mark shown below, for "beachwear, bathing suits." Applicant argued, inter alia, that its mark conveys a different commercial impression due to the use of the French word JOLIE, which evokes associations with French fashion and design, and that the actual trade channels and customers do not overlap. How do you think this came out? In re Maya Brooke Inc., Serial No. 98758658 (June 4, 2026) [not precedential] (Opinion by Judge Jennifer L. Elgin).

The Board found the cited mark to be inherently distinctive, noting that, even if LIVIA is a given name, "such marks are not per se regarded as lacking conceptual or inherent strength." In an attempt to show commercial weakness, applicant cited nine third-party registrations, but the Board pointed out that without evidence of the extent of use of those marks, the registrations are of minimal probative value.

Only five of the registrations were potentially probative as to conceptual weakness of the cited mark – ALIVIA FORD, ALIVIA, ELIVIA & CO., ALIVIA SIMONE, and OWLIVIA (Stylized). "Although these registrations have some probative value to show that LIVIA is a given name, they do not show any connection between the mark and the registered clothing goods – that is, the mark is arbitrary and conceptually strong as applied to these goods."

As to the involved marks, the Board observed that "LIVIA is the leading term in Applicant’s mark and the only term in the cited mark, a factor which "makes 'the marks similar.'" Moreover, applicant’s mark incorporates the cited mark in its entirety, a fact that often leads to a finding of similarity. And even if it's true that the term JOLIE evokes French fashion, "some consumers – particularly those familiar with the cited mark – are likely to believe the marks are related" - for example that applicant’s goods under the mark LIVIA JOLIE are a product line extension of registrant’s goods.

Discounting the impact of the stylization in the cited mark and the box around the literal portion, the Board found that the marks, "considered in their entireties, are similar in sight, sound, meaning, and overall commercial impression."

As to the goods, Examining Attorney Marianne Strassle submitted third-party evidence showing that same entity commonly provides applicant’s and registrant’s clothing items under the same mark. Moreover, it found that the goods overlap:

We take judicial notice that “beachwear” in the cited registration means “clothing for wear at a beach.” This broad identification, therefore, overlaps with the narrower identification in Applicant’s application, including “Shirts; Shorts; … Tops as clothing….” We find that the goods are legally identical in part.

The overlapping goods are presumed to travel in the same trade channels to the same classes of consumers. As to the merely related goods, the third-party internet evidence demonstrated that "the trade channels include stores or websites that sell clothing, and supported a finding that the trade channels and consumers of the relevant goods overlap." Applicant's argument about actual channels of trade was unsupported by evidence and, in any case, "actual channels are not material to the [Board's] analysis because [it] must presume all possible, not just actual, channels of trade."

Since all the relevant DuPont factors weighed in favor of likely confusion, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: I don't think a person should be able to register a given name and then preclude others from registering their full name.

TTABlog Test: Is CELEBRITY PITCH TANK Confusable with SHARK TANK for Business-Themed Entertainment Services?

2026-06-16T05:45:46.170-04:00

Sony Pictures opposed an application to register the mark CELEBRITY PITCH TANK for "Entertainment, namely, a continuing reality show broadcast over the internet during which participants give away cash for scholarships and startup businesses" [CELEBRITY PITCH disclaimed], claiming likely confusion with the registered mark SHARK TANK for "entertainment services in the nature of an ongoing reality television series, involving presentation of business concepts." What do you think? Did David conquer Goliath? Sony Pictures Television Inc. v. Tim Lynch, Opposition No. 91289684 (June 9, 2026) [not precedential] (Opinion by Judge Cheryl S. Goodman).

The Board found the involved services to be closely related because both involve business-themed entertainment services. It found some overlap between channels of trade and classes of consumers because television shows may be offered via the internet through streaming services and YouTube.

As to the conditions of purchase, "[o]rdinary consumers who watch Applicant’s and Opposer’s reality programs are likely to exercise only ordinary care, especially given that Applicant’s internet shows may be available for free and at least the first run shows of Opposer’s television program are broadcast on the ABC network and 'free.'"

Turning to the strength of Opposer Sony's mark, based on a raft of evidence and on pro se Applicant Lynch's own admissions, the Board found that the SHARK TANK mark "falls on the higher end of the fame spectrum, and is entitled to broad protection." As to conceptual strength, the Board concluded that "SHARK TANK (i.e., a natural or artificial pool, pond or lake or liquid receptacle containing elongate elasmobranch mostly marine fishes) is arbitrary when used in connection with reality shows."

As to the marks, the Board acknowledged that the first words in a mark can make the biggest impact, but here "this impact is blunted in Applicant’s mark because the disclaimed terms CELEBRITY PITCH are at least descriptive, in that they identify a feature of the reality program Applicant offers." The Board concluded that "consumers are likely to focus on the TANK portion of Applicant’s mark."

The Board found that the "overall commercial impression conveyed by the marks is similar and likely to be the same for many consumers." It concluded that the marks are "sufficiently similar in their entireties such that persons who encounter the marks would be likely to assume a connection between the parties."

Finally, Applicant Lynch admitted that he “selected [his Mark] in order to make reference to, or call to mind, Opposer’s SHARK TANK Television Program." Based on this admission, the Board found "sufficient evidence in the record to support a finding of bad faith intent to confuse."

And so, the Board sustained the opposition.

Read comments and post your comment here.

TTABlogger comment: The Board struggled a bit to find the marks confusingly similar. Do you agree with the result?

BTW: Should intent be a factor in the DuPont calculus? How does the applicant's intent have anything to do with consumer perception? Thomas L. Casagrande (now a TTAB judge) said it didn't in this article: "A Verdict for Your Thoughts? Why an Accused Trademark Infringer’s Intent Has No Place in Likelihood of Confusion Analysis." [pdf here].

TTAB Upholds Section 2(b) Refusal: PROSCIUTTO DI CARPEGNA Mark Includes Italian Flag or Simulation Thereof

2026-06-15T06:45:35.554-04:00

The Board affirmed a refusal to register the mark PROSCIUTTO DI CARPEGNA & Design (shown below) for "Prosciutto from the Carpegna region of Italy made in accordance with specific standards," finding that the mark comprises the Italian flag, in violation of Section 2(b). In re Consorzio Prosciutto di Carpegna, Serial No. 87811048 (June 12, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande).

Section 2(b) requires refusal of any mark that "[c]onsists of or comprises the flag … of any foreign nation, or any simulation thereof." "[T]he word 'comprises' in the clause '[c]onsists of or comprises' means 'includes.'" "Whether matter included in a mark is, or includes, a flag 'is determined by a visual comparison of the matter and the actual flag.' (citation omitted). As with most things trademark (except, notably, functionality), our comparison focuses on the perception of the relevant consumers."

The Italian flag (shown immediately above) is rectangular, wider than it is tall, with equal vertical parallel stripes of green, white, and red. The relevant matter in applicant's mark includes green, white, and red parallel stripes arrayed almost vertically. "It is not depicted as a rectangle, but, depending on one's perspective, looks either like a tilted rectangle (i.e., parallelogram) or, more likely, like a rectangle as seen from an angle, rather than head-on."

The Board found that "consumers will perceive the matter as the Italian flag or a close simulation—i.e., something that gives the appearance or effect of the Italian flag."

Applicant originally described this feature as the Italian flag, but then insisted that consumers would not recognize it as the flag because the mark "merely includes only stylized flag elements, red and green vertical stripes, and is incomplete. There is no border around it and the middle section is merely a gap." Moreover, according to applicant, the mark is dominated by the words PROSCIUTTO and CARPEGNA.

The Board, however, observed that whether other elements of the mark are dominant is irrelevant. "We’re determining whether the mark includes a flag, or a simulation of a flag. Period. Unless the matter is so small or obscured that consumers wouldn’t even notice that it was included—which is not the case here—size does not matter."

The Board noted that the mark has a white background, thus explaining the "gap" in the middle. Furthermore, the relevant consumers "are consumers of 'Prosciutto from the Carpegna region of Italy,' which predisposes them to viewing the mark through an Italian lens."

Applicant pointed to the TMEP, which states that "if the flag design is used to form a letter, number, or design,” examining attorneys will not refuse registration. The Board noted, however, that the TMEP does not state "as part of a design." Reviewing the examples in the TMEP, the Board found most relevant this mark that the TMEP advised should be refused registration under Section 2(b):

In sum, the Board found that Examining Attorney Lisa Papale "correctly found that the mark includes an Italian flag, or simulation of an Italian flag, and correctly determined that the application must be refused under Section 2(b)."

Read comments and post your comment here.

TTABlogger comment: Looking through an Irish lens, it still looks like the flag of Italy.

TTABlog Test: Is FOODANALYZER Generic for Food Sensitivity Testing Services?

2026-06-12T06:24:21.694-04:00

The USPTO refused to register the proposed mark FOODANALYZER (on the Supplemental Register) for “Diagnostic testing and analysis services for medical diagnostic and treatment purposes, namely, for food sensitivity testing" on the ground of genericness under Sections 23(c) and 45 of the Trademark Act. Applicant Access Medical contended that because food itself is not analyzed, FOODANALYZER cannot be generic. The Board gave that argument limited weight: "Our analysis must focus on the broader record of how the relevant public actually perceives the term FOODANALYZER as a whole." How do you think this appeal came out? In re Access Medical Laboratories, Inc., Serial No. 97708719 (June 9, 2026) [not precedential] (Opinion by Judge Lawrence T. Stanley, Jr.).

There was no dispute that the relevant genus was co-extensive with applicant's recitation of services, and the Board found the relevant consumers to be ordinary purchasers, users, or providers of such services. The question, then, was whether the relevant public understands FOODANALYZER "as the name of the category of services."

Applicant argued that the Office must prove genericness by "clear evidence," but the CAFC in PT Medisafe, clarified that it has “never held that the examining attorney must find genericness by clear and convincing evidence.” The court explained that “[a] potentially confusing reference to ‘clear evidence’ in the TMEP . . . has recently been clarified and no longer suggests a clear and convincing evidence burden. . . .” The correct standard is a preponderance of the evidence.

The Board found the record evidence to be "mixed." FOODANALYZER is not a dictionary term, nor is it found in industry glossaries, trade publications, or media articles. There were some third-party references to applicant's branded services, and several third-party uses that appeared to be source-identifying. Applicant itself used the term in a trademark manner.

On the other hand, there was evidence of use of FOODANALYZER appearing in service lists alongside other apparently generic terms. But the "total volume of third-party evidence − approximately fifteen references, some of which describe a test with specifications identical to Applicant's own offering and using the same formatting ('foodAnalyzer') − does not establish that the relevant consuming public understands FOODANALYZER as the generic name for a class of food sensitivity testing services."

We acknowledge that FOODANALYZER bears a close descriptive relationship to the identified services and that “food” and “analyzer” individually have descriptive significance for those services. But descriptiveness, even high descriptiveness, is not tantamount to genericness. Applicant has conceded descriptiveness by seeking a registration on the Supplemental Register. The Examining Attorney must establish something beyond that, namely that the relevant public perceives FOODANALYZER primarily as a category name rather than as a source identifier, even a weak one. On this record, that additional showing has not been made.

The Board found that the limited record evidence "create[s] doubt about whether consumers would perceive [FOODANALYZER] as generic, or rather as capable of indicating source and thus eligible for registration on the Supplemental Register." Resolving that doubt in applicant's favor, the Board reversed the refusal.

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TTABlogger comment: The "mixed record" approach is probably the best get-out-of-jail-free card for genericness refusals.

TTAB Affirms Bifusal of THE OHIO IPA for Beer: Geographically Descriptive and Confusable with OHIO PALE ALE for Beer

2026-06-11T06:26:15.685-04:00

The Board affirmed two refusals to register the mark THE OHIO IPA for beer [OHIO disclaimed], finding the mark to be primarily geographically descriptive of the goods and likely to cause confusion with the registered mark OHIO PALE ALE, also for beer [ALE disclaimed]. Applicant TBK argued, among other things, that young people perceive an alternate meaning of “Ohio:” a slang for “weird, bizarre, or foolish.” The Board didn't buy it. In re TBK Operating Company, LLC, Serial No. 98551577 (June 9, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande).

Geographical Descriptiveness: Section 2(e)(2) prohibits registration of a “mark which … when used on or in connection with the goods of the applicant is primarily geographically descriptive of them . . . .” The test for determining whether a mark is primarily geographically descriptive is whether: 1. the mark sought to be registered (or a portion thereof) is the name of a place generally known to the public; 2. the source of the goods or services is the geographic region named in the mark; and 3. the public would make an association between the goods or services and the place named in the mark, that is, believe that the goods or services for which the mark is sought to be registered originate in that place.

Applicant TBK did not argue that Ohio is not a well-known geographic location. It asserted that “[c]onsumers will see the wording ‘THE’ as a source identifying term that changes the primary significance of the mark from the word ‘OHIO.’” However, there was no evidence to support that argument. As to the purported slang meaning of OHIO, again there was no evidence to support the attorney's argument.

Likewise, the inclusion of the term IPA did not overcome the refusal. "Generally, 'the presence of generic or highly descriptive terms in a mark which also contains a primarily geographically descriptive term does not serve to detract from the primary geographical significance of the mark as a whole.'" The Board found that the primary significance of THE OHIO IPA is geographic.

As the second and third elements of the Section 2(e)(2) test, the evidence from TBK’s website showed that its "production facility" for its beers and ales is in Middleburg Heights, Ohio. Therefore, the Board applied the presumption that consumers will make a goods/place association when the goods come from the place named. It concluded that the mark is primarily geographically descriptive, and affirmed the refusal to register on that ground.

Likelihood of Confusion: The goods are identical and therefore presumably travel through the same trade channels to the same classes of consumers. As to the marks, THE OHIO IPA and OHIO PALE ALE "look and sound alike only to the extent they contain the term OHIO. But, . . . in the beer context, there is evidence that 'IPA' signifies a sub-type of pale ale: India pale ale. So the respective marks have very similar meanings."

TBK argued that the Board gave too much weight to the word OHIO and not enough to THE. According to TBK, the word THE signifies that its “Ohio IPA” is "unique and the most outstanding or prominent choice for beer." The Board was unconvinced:

We fail to see how this essentially laudatory use of “THE” in Applicant’s mark, which points to the words that follow (Applicant’s “OHIO IPA” beer) distinguishes source from the seller of “OHIO PALE ALE” beer, which is essentially the same thing (an Ohio beer or pale ale). * * * In short, we find the marks, overall, to be similar, especially in meaning.

With all the relevant DuPont factors pointing one way, the Board had "no difficulty, on the record here, concluding that confusion is likely." And so it affirmed the Section 2(d) refusal.

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TTABlogger comment: Is this a WYHA? a half-WYHA?

TTAB Affirms Reexamination Decision Ordering Cancellation of BAIA Registration for Non-use, Rejects Residual Goodwill Argument

2026-06-10T06:38:39.008-04:00

The Board affirmed the USPTO's decision on reexamination, ordering cancellation of a registration for the mark BAIA & Design (shown below) for " Boats; Ships; Yachts" because Registrant Hanako failed to demonstrate use of the mark in commerce by the critical date (the date of filing its statement of use, or the last date for filing same). The petition for reexamination presented a prima facie case, shifting the burden to Hanako to show use of the mark. In re Hanako design SA, Reexamination No. 2024-101552R for Registration No. 7220244 (June 5, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande).

Registrant Hanako failed to submit a "verified statement signed by someone with firsthand knowledge of the facts to be proved, setting forth … factual information … about the use of the mark in commerce … and how the evidence demonstrates use of the mark in commerce as of any relevant date” as required by Rule 2.93(b)(7). That failure alone justified affirmance of the reexamination decision.

Nonetheless, in the interest of completeness, the Board addressed Hanako's arguments. Hanako did not contend that it ever sold any goods under the mark. Instead, it argued that it succeeded to rights in the mark tracing back to the owner of a prior BAIA registration that was cancelled in 2012. However, the Board found four missing links in the chain-of-title.

Hanako also argued that, although it lacked evidence that it or its purported predecessors-in-interest used the registered mark, there were "multiple active U.S. listings for BAIA yachts" that "advertise the yachts for purchase." According to Hanako, this "secondary market" preserved "trademark significance" and "demonstrates that the … Mark remains visible to consumers and retains its goodwill." The Board rejected that argument.

While evidence of residual goodwill can serve to negate a charge of abandonment based on a mark having become the generic name for the goods, see Adamson Sys. Eng’g, Inc. v. Peavey Elecs. Corp., No. 92076586, 2023 TTAB LEXIS 454, at *18, the problem here is different: Registrant’s nonuse (and the lack of evidence that Registrant’s alleged predecessor-in-interest, Italproperties, ever used the mark). Alleged residual goodwill does not defeat nonuse. See, e.g., id. at *43-44; see also Azeka Bldg. Corp. v. Azeka, No. 91218679, 2017 TTAB LEXIS 123, at *29-32; Gen. Motors Corp. v. Aristide & Co., No. 91167007, 2008 TTAB LEXIS 18, at *14-15 (TTAB 2008). Nonuse remains nonuse.

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TTABlogger comment: For a discussion of the significance of residual goodwill, see Jerome Gilson and Anne Gilson LaLonde, The Zombie Trademark: A Windfall and A Pitfall, 98 TMR 1280 (November - December 2008).

TTAB Grants Two Cancellation Petitions Based on Registrant's Deemed Admissions of Non-use

2026-06-09T06:03:03.223-04:00

In this consolidated cancellation proceeding, the Board granted petitions to cancel two registrations for the mark SUPERKING for bags, bath towels, and various other goods in classes 18 and 24, on the ground of non-use as of the filing dates of the underlying use-based applications. Respondent did not respond to discovery, submit any evidence or testimony, or file a brief. Its attorney told petitioner that his client was not responding to his communications. Super Kings International, Inc. v. Shenzhen BMX Network Technology Ltd., Cancellation Nos. 92085356 and 92085358 (Consolidated) (June 5, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

Specimen of Use

Petitioner argued that respondent's failure to defend was sufficient to warrant judgment, but the Board disagreed:

The plaintiff always bears the burden of proving that the defendant is not entitled to obtain or maintain a registration “even in the absence of contrary evidence or argument.” DC Comics v. Cellular Nerd LLC, No. 91246950, 2022 WL 17832492, at *9 (TTAB 2022) (citation omitted). Defendants thus are not required to “defend” a case by submitting evidence or a brief, and there are no adverse consequences flowing simply from a defendant’s failure to do either.

The Board observed that “[a]n application based on use of the mark in commerce under Section 1(a) . . . is void ab initio if the mark was not in use in commerce in connection with the goods identified in the application at the time the application was filed.”

Petitioner relied on respondent’s deemed admissions of non-use resulting from its failure to respond to requests for admission served by petitioner under Rule 36 of the Federal Rules of Civil, which provides that "[a] matter is admitted, unless within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” “The effect of such admissions is that the subject matter of the requests is ‘conclusively established" . . . .

Respondent thus admitted that its marks had “never been used in commerce in the United States," that “none of the goods or services listed under Registrant’s Mark[s] have ever been sold, offered for sale, or distributed under Registrant’s Mark[s] in the United States,” and that “the specimens of use submitted in registering Registrant’s Mark[s] were not of products in commerce in the United States at the time of registration or at any time before or after registration, but instead fraudulent fabricated specimens.”

Consequently, the Board found that the two registrations at issue were void ab initio, and so it granted the petitions for cancellation.

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TTABlogger comment: The underlying applications were filed by attorney Nyall Engfield. In March 2025, while these proceedings were pending, Mr. Engfield was publicly reprimanded and put on probation for six months by the USPTO’s Office of Enrollment and Discipline (“OED”) for misconduct in the representation of numerous Chinese applicants before the USPTO. Note also that registrant's attorney in these proceedings, Jonathan G. Morton, was suspended from practice before the U.S. Patent and Trademark Office for a period of twenty-four months, commencing on April 24, 2022, as stated in a Final Order of suspension (pdf here). Mr. Morton had acknowledged that did not conduct reasonable inquiries regarding the specimens of use that he submitted on behalf of his clients.

Second Circuit Vacates Peju Summary Judgment: Lower Court Misapplied Issue Preclusion and Misread B&B Hardware

2026-06-08T11:38:49.273-04:00

A mere three weeks after hearing oral argument, the U.S. Court of Appeals for the Second Circuit vacated and remanded the July 12, 2024 judgment of the district court in Cesari S.R.L. v. Peju Province Winery L.P., Civil Action No. 17 Civ. 873 (NRB) (S.D.N.Y. Dec. 11, 2017) [pdf here], in which the court granted Plaintiff Cesari's motion for partial summary judgment on its trademark infringement claim, ruling that preclusion applied to the issue of likelihood of confusion based on a 2004 TTAB decision. The Second Circuit's non-precedential order may be downloaded here.

In the TTAB opposition, Cesari contended that Peju’s LIANA mark was likely to cause confusion with its LIANO mark. The TTAB conducted its Section 2(d) analysis exclusively “on the basis of the identification of goods set forth in [Peju’s] application,” without considering “the particular nature of [Peju’s] goods, the particular channels of trade[,] or the class of purchasers to which the sales of goods are directed.”

Ten years later, Cesari sued Peju for trademark infringement, and then moved for partial summary judgment on the issue of whether Peju was precluded from relitigating the “likelihood of confusion” element of the trademark-infringement claim. The district court granted the motion, ruling that Peju was “precluded from relitigating the likelihood of confusion between the parties’ marks” – an element of Cesari’s trademark infringement claim – because the TTAB’s 2004 trademark registration decision had settled the matter once and for all."

The Second Circuit, however, found that "the TTAB decision – on its face – did not consider the parties’ 'actual usage in the marketplace.'" "Importantly, the TTAB never considered the merits of Peju’s principal defense to Cesari’s infringement claim: “that its wine [wa]s distinguishable [from Cesari’s] because it is a dessert wine” and therefore not likely to confuse consumers.

Therefore, because the issues before the TTAB and the district court were not the same, the district court should not have given preclusive effect to the TTAB’s ruling on the likelihood of confusion.

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TTABlogger comment: TTABlog hat tip to Joel MacMull (who argued the case) and Marty Schwimmer. If you listened to the oral argument, you are not surprised by the swiftness of this ruling.

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