TTABlog Test: Are Safari Expedition Services Related to Restaurant Services Under Section 2(d)?

The USPTO refused to register the mark WHERE LIFE HAPPENS for "arranging and conducting safari expeditions for recreational purposes," finding confusion likely with the identical mark registered for "restaurant services." The fact that the marks are identical weighed "heavily" in favor of affirmance, and it also lessened the degree of similarity of the services needed to support the refusal. How do you think this came out? In re Aggressor Adventures, LLC, Serial No. 98356369 (March 9, 2026) [not precedential] (Opinion by Judge Jessica B. Bradley).

The Examining Attorney argued that the term "safari" included any recreational tour or expedition, pointing to a second-listed meaning found in the Merriam-Webster dictionary. However, the Board, relying on the primary definition in that dictionary and on other dictionaries, as well as on Aggressor's website, agreed with Aggressor that a "safari" is "specific type of journey or expedition that includes viewing and/or hunting game, and does not encompass other kinds of recreational tours or expeditions."

To establish relatedness between safari expeditions and restaurant services, the Examining Attorney submitted evidence of eighteen third-party uses. The Board found them wanting. Five did not reference either of the involved services. Of the remaining thirteen, twelve involved recreational activities with no connection to safari expeditions - scuba and water sports, fly-fishing, catamaran cruises, snowcat and snowmobile excursions, and the like. Only one third-party, a Hard Rock hotel in Punta Cana, in the Dominican Republic, offered a "safari half day tour," but the accompanying screenshots showed no restaurant services.

The Office's third-party registration evidence also fell short. Only three of the registrations covered both safari expedition services and restaurant services, and two of those were owned by the same entity. Although Aggressor's owns prior use-based registrations for other marks that cover both services, the Board found that on balance - given that the vast majority of the evidence showed only one or the other service, not both - "the evidence of record does not show that consumers are accustomed to seeing Applicant’s and Registrant’s services originating from the same source."

The Examining Attorney argued that because neither identification contained restrictions, the services should be presumed to travel in the same channels to the same purchasers. Wrong. That presumption applies only when the services are identical or legally identical. When the services differ, the proper presumption is merely that each is offered in the normal channels of trade for that particular type of service. The evidence did not reveal any overlap between the normal channels for safari expeditions and those for restaurant services.

As to purchaser care, the Board noted that purchasers of safari expedition services are likely to excercise some care, while restaurant services can range from fast-casual impulse purchases to fine dining. The Board deemed this DuPont factor to be neutral.

Balancing the relevant factors, the Board concluded that "the differences in the services, channels of trade, and classes of consumers outweigh the identity of the marks." And so, the refusal to register was reversed.

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TTABlogger comment: Aggressor Adventures offers some amazing tours.

Text Copyright John L. Welch 2026.