TTABlog Test: Are Plastic Bags Related to Paper Labels Under Section 2(d)?

The USPTO refused to register the mark MAXXOUT for "General purpose plastic bags; Merchandise bags," deeming confusion likely with the registered mark MAXOUT! for "Multi-layer pressure sensitive paper labels." The marks are too close for comfort, but what about the goods? How do you think this came out? In re Sol NY Corp., Serial No. 98587411 (September 16, 2026) [not precedential] (Opinion by Judge Angela Lykos).

Applicant Sol NY feebly argued that the extra letter “X” and the exclamation point in the cited mark distinguish the marks in appearance and commercial impression. The Board was not convinced: "Both marks not only sound the same but also look virtually identical. Each mark is comprised of two words, beginning with the word “max” or its phonetic equivalent “maxx” and ending with the word “out.” This makes each mark the same in structure and cadence."

Overall, the marks are virtually identical in appearance and identical in sound, connotation and commercial impression. Consumers “have but dim recollections from having previously seen or heard one or the other of the involved marks.”

As to the goods, Sol maintained that they are unrelated because they serve different functions: mass-market bags "purchased by retail establishments and ultimately used by consumers for bought items," versus registrant’s "highly specialized labels with multiple layers or pages designed to provide more information than can fit on a standard single-layer label and often used to affix detailed regulatory or instructional information directly onto products or their packaging." The Board was unmoved: "applicant's general purpose bags are not limited to any particular use. Registrant's labels are "unrestricted as to industry or application meaning that while the labels themselves are specific in nature, they are not limited to any specialized or technical uses as Applicant contends."

Furthermore, the evidence showed that "it is not uncommon for third-parties to offer via their business-to-business websites 'general purpose plastic bags' or 'merchandise bags' on one hand, and pressure sensitive paper labels on the other."

Sol claimed that its goods are ordinarily sold through retail channels, including convenience stores, smoke shops, small retail outlets, and general-merchandise suppliers, and that the classes of consumers include retailers and wholesalers, with the general public serving as the ultimate end users. In contrast, the cited registration’s goods are “multi-layer pressure-sensitive paper labels" that are specialized industrial or commercial products rather than consumer goods. Irrelevant, said the Board.

Neither the registration nor the application contains any limitations on the channels of trade, or classes of purchasers. As such, Applicant’s and Registrant’s goods presumptively move in all normal trade channels and to all types of consumers that purchase such goods. * * * We must therefore assume that Registrant’s goods are available to ordinary consumers of such products at all price points. * * * While some of these consumers might be highly sophisticated and knowledgeable, others may not. * * * Basing our analysis “on the least sophisticated potential purchasers,” Stone Lion, 746 F.3d at 1325, this DuPont factor is neutral.

https://www.blogger.com/comment/fullpage/post/9072179/6629202388663149644

With no factors weighing against a likelihood of confusion, the Board concluded that confusion is likely, and so it affirmed the refusal.

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TTABlogger comment: Do you think that confusion is likely in the real world?

Text Copyright John L. Welch 2026.