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

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 In re Bote LLC, Serial No. 98726325 (November 9, 2026) [not precedential] (Opinion by Judge Robert Lavache).

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

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

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

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

The Board therefore concluded that confusion is likely.

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

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

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

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

And so, the Board affirmed this second refusal.

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

Text Copyright John L. Welch 2026.