TTABlog Test: Is HELANDE (Swedish) Merely Descriptive of Skin Care Preparations?

While the stream of failure-to-function appeals has tailed off, the doctrine of foreign equivalents has recently grabbed the spotlight. Here, the USPTO refused to register the proposed mark HELANDE for skin care preparations, deeming the mark to be merely descriptive of the goods under Section 2(e)(1). The applicant mainly argued that the doctrine does not apply because Swedish is not understood by an "appreciable number" of American purchasers. How do you think this came out? In re Helande, LLC, Serial No. 98083515 (February 13, 2026) [not precedential] (Opinion by Judge Robert Lavache).

"Under the doctrine of foreign equivalents, if a proposed mark contains a foreign term from a common, modern language familiar to an appreciable number of American consumers, that term is translated into English to determine whether it is merely descriptive." Palm Bay. (Emphasis added). "[U]nless it is unlikely that the ordinary American purchaser would stop and translate the word into its English equivalent, the doctrine of foreign equivalents applies.” Vetements." [T]he “ordinary American purchaser” includes “all American purchasers, including those proficient in a non-English language who would ordinarily be expected to translate words into English.” Spirits.

Under Vetements, the applicant has the burden to prove that the ordinary American purchaser would not translate the proposed mark into English. If an "appreciable number" of American are capable of translating the word, the word likely will be translated. "The analysis considers 'whether in context, the mark would ordinarily be translated by a purchaser (from the U.S. population as a whole) with ordinary sensibilities.'" Id. (emphasis in italics in original). 

Examining Attorney Hanno Rittner submitted excerpts from online dictionaries supporting the translation, along with the applicant's own translation statement ("English translation of HELANDE in the mark is healing"). See In re Tokutake Indus., No. 79018656, 2008 TTAB LEXIS 26, at *10-11 ("Once an applicant provides a translation of a foreign term that is a . . . descriptive term for the goods in English, it has a more difficult burden to then show that the term is not merely descriptive . . . ."). Website excerpts and third-party registrations established that the word "healing" is used to describe a purpose, characteristic, or function of skin care preparations.

In contending that the doctrine of foreign equivalents does not apply here, applicant argued that "healing" is not a direct translation of HELANDE and that there are other relevant meanings for the word, but the Board rebuffed those assertions. The main thrust of applicant's argument, however, concerned whether Swedish is "a common, modern language to U.S. citizens," such that the relevant American purchaser would stop and translate the term HELANDE.

The Board first observed that applicant's attempted limitation "to U.S. citizens" "recasts the relevant consideration in a significant and inaccurate way by suggesting that there must be proof that U.S. citizens view the relevant foreign language as common and modern. But there is no such requirement."

The Board saw "ample evidence" that Swedish "is a modern language of a principal nation of the world, namely, Sweden." The Board pooh-poohed two declarations submitted by applicant purporting to show that Swedish does not qualify as a common, modern language. That left the question of whether and "appreciable number" of American purchasers are capable of translating the Swedish term HELANDE.

Applicant and the Examining attorney appeared to agree that, according to U.S. Census data, there were slightly more than 76,000 Swedish speakers in the United States as of 2022, amounting to approximately .02% of the U.S. population. The Board observed, however, that in Vetements, the CAFC "rejected the idea that the 'appreciable number' determination should be decided on the basis of a mere 'headcount' of those American purchasers who understand the foreign language at issue."

The Board acknowledged that "the relative share of Swedish speakers in the U.S. is very small," but it found that "an appreciable number of American purchasers are capable of translating HELANDE."

[E]ven very small populations of speakers of a common and modern foreign language can give rise to an appreciable number of American purchasers who are capable of translating a term in the relevant language. *** And the Board has previously applied the doctrine of foreign equivalents to common, modern languages with relatively small U.S. populations of speakers. [e.g., Greek (304,000) and Japanese] (hundreds of thousands)].

Next, the Board found that "a purchaser with ordinary sensibilities would translate the word HELANDE because it is relevant in the context of medicated and non-medicated skin care preparations, which the evidence shows are commonly marketed for use in healing the skin." Moreover, there was no evidence that translation of HELANDE to "healing" would require an advanced Swedish vocabulary.

Thus, because the record fails to establish any meaning of HELANDE other than “healing” in the context of Applicant’s goods, that is undoubtedly how the term would be recognized and understood by the Swedish-speaking American public.

And so, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: Note that, in the ARBATA tea case [TTABlogged here], the Board reversed a mere descriptiveness refusal because the panel majority found that Lithuanian (40,000 speakers), although a modern language, was not "common" in the USA for purposes of the doctrine of foreign equivalents.

Text Copyright John L. Welch 2026.

TTABlog Test: Is MICHAEL THE BULL Confusable with THE BULL ATTORNEYS! for Legal Services?

The USPTO refused to register the marks MICHAELTHEBULL.COM, MICHAEL “THE BULL” LAMONSOFF and MICHAEL THE BULL, in view of ten registered marks - CALL IN THE BULL, ABOGADO EL TORO, WE’RE THE BULL ATTORNEYS HIRE THE BIG GUNS, and THE BULL ATTORNEYS!, and six logo marks, including the two shown below - all for legal services. As the Board observed, "[s]ome attorneys are known for slinging the bull. These three appeals involve an attorney who wants to be known for being the bull." "Standing in his way is not a matador with a red cape, but rather another attorney," who owns a "bull pen" of registrations. Take a guess as to how these three appeals came out. In re Law Offices of Michael S. Lamonsoff, PLLC, Serial Nos. 98316445, 98317034, and 98317055 (February 11, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

Since five of the marks include the Spanish word "toro," the Board considered whether the doctrine of foreign equivalents is applicable. Noting that, "[l]ike many Spanish words, the word 'toro' appears to be a 'loan word' that has become part of the American English vernacular," and taking judicial notice that the Merriam-Webster Dictionary defines "toro" as "bull," the Board concluded that the doctrine applies because "it is likely that ordinary purchaser of legal services would understand at least that the words 'toro' and 'toros' in those marks mean 'bull' and 'bulls.'"

TTABlogger comment: If "toro" is part of the American English vernacular, why is it necessary to apply the doctrine? Why would a consumer have to "stop and translate" the term? Just last week in the FLAT EARTH SURF CLUB case [TTABlogged here], a different Board panel found that consumers would not "stop and translate" the Portuguese word "terra" because it appears in English language dictionaries. Let's face it, the doctrine of foreign equivalents is a mess.

The Board devoted 15 pages to its discussion of the first DuPont factor, the similarity or dissimilarity of the marks, setting out in some detail the arguments of the applicant and those of the examining attorney. It deemed the word "MICHAEL" to be the dominant elements in the applicant's first and third marks, while "MICHAEL LAMONSOFF" dominates the second mark. It then found that all three marks differ from the ten cited marks "in all means of comparison."

The Board concluded that, although the identify of the services strongly supports affirmance of the refusal, the differences in the marks weighs heavily against affirmance, and it reversed the refusals to register.

Read comments and post your comment here.

TTABlogger comment: How did you do? I think I might have found MICHAEL THE BULL and CALL IN THE BULL confusingly similar.

Text Copyright John L. Welch 2026.

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

For the past decade, about 90% of Section 2(d) refusals have been affirmed on appeal. A TTAB Judge (now retired) once said to me that one can predict the outcome of a Section 2(d) appeal 95% of the time just by considering the marks and the goods/services. Here are three recent Section 2(d) appeals. Let's see how you do. [Answer in first comment].

In re Bump Health, Inc., Serial No. 98294493 (February 4, 2026) [not precedential] (Opinion by Judge Angela Lykos). [Section 2(d) refusal of the mark AINS & LJ for “Wall sticker murals; Wall stickers; Children’s wall stickers” in International Class 16 and "furniture" in International class 20, in view of the registered mark LJ for “furniture” in International Class 20 and “Wallpaper, non-textile wall coverings, namely, wall coverings made of paper, grass cloth, vinyl, polymers or fabric” in International Class 27.]

Sumitomo Rubber Industries, Ltd., Serial No. 97684418 (February 6, 2026) (Opinion by Judge Jennifer L. Elgin) [Section 2(d) refusal to register the mark HB SOFT, in standard characters, for "Golf club heads; Golf clubs; Golf putters" in view of the registered mark HB & Design (shown below) for "golf balls."]

In re Rene Sebastian Friessen Froese, Serial No. 98217661 (February 10, 2026) [not precedential] (Opinion by Judge Mark A. Thurmon). [Section 2(d) refusal of the mark FORTEX MFG, in standard characters [MFG” disclaimed], for “Custom manufacture of vehicles, vehicle parts, and metallic structures in the nature of power trains, dollies, and storage containers” and “Engineering of vehicles, vehicle parts, and metallic structures in the nature of power trains, dollies, and storage containers; Industrial design of vehicles, vehicle arts, and metallic structures in the nature of power trains, dollies, and storage containers," in view of the registered mark FORTEC, in standard characters, for “Automobile customization, modification, and accessory installation services."]

Read comments and post your comment here.

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

Text Copyright John L. Welch 2026.

TTABlog Test: Are Industrial Heat Exchangers Related to Vacuum Cleaners Under Section 2(d)?

The USPTO refused to register the mark SPINFLOW & Design for "heat exchangers, other than parts of machines, for industrial use," finding confusion likely with the registered mark SPINFLOW (standard characters) for "vacuum cleaners, robotic vacuum cleaners and parts thereof; robotic appliances for household purposes and maintenance and parts thereof, namely, robotic vacuum cleaners and parts thereof." The Board found the marks to be "very similar," but what about the goods? In re Zhenhai Petrochemical Jianan Engineering Co., Ltd., Serial No. 79381020 (February 5, 2026) [not precedential] (Opinion by Judge David K. Heasley).

Applicant Zhenhai stumbled out of the gate by devoting its main brief to an argument that its mark was not merely descriptive under 15 U.S.C. § 1052(e)(1). However, the issue was likelihood of confusion, not mere descriptiveness. The examining attorney's brief did discuss the DuPont factors, and Zhenhai's reply brief addressed the Examining Attorney’s Section 2(d) arguments. The Board, noting that a non-conforming will not cause dismissal of an appeal, exercised its discretion to consider Zhenhai's reply brief, along with its responses to the Office Actions.

Since the involved goods are not identical on the face of the identifications of goods, and since the goods are not complementary, the examining attorney relied on seven third-party websites purporting to offer both kinds of goods (including Home Depot and Lowe's). Zhenhai argued that “mere retailer overlap does not establish relatedness; probative evidence would include examples of a single entity offering both goods under a single mark. None exists here.” The Board agreed with Zhenhai.

This third-party evidence does not show manufacturers, producers or dealers selling the items under their own marks, but large retailers primarily selling others’ goods bearing the manufacturers’ and producers’ trademarks. Not one third-party use example shows heat exchangers and vacuums bearing the same trademark. Naterra, 92 F.4th at 1117. None of this third-party evidence shows how consumers would be educated to perceive the respective goods as emanating from a common source.

The Board cited several analogous cases involving large brick-and-mortar retailers. “The evidence provided … is not sufficient to show that consumers would believe that the same company that sells [vacuum cleaners] would also sell [industrial heat exchangers], even when they see the goods offered in the same store.” North Face Apparel Corp. v. Sanyang Indus. Co., No. 77375588, 2015 WL 6467820, *16 (TTAB 2015).

As to trade channels, the third-party evidence indicated that vacuum cleaners and heat exchangers "are available through a very broad channel of trade, in the sense of being offered by large distributors and retailers." However, vacuum cleaners and heat exchangers are offered under different categories online, and would presumably be displayed in different aisles of brick-and-mortar stores, since they serve distinctly different purposes. The Board concluded that the goods are offered in overlapping broad channels of trade, but "would not tend to be displayed in proximity to one another."

As to classes of consumers, the Board observed that, "given the disparity in the goods, we cannot presume that their classes of purchasers would be the same." "The purchasers responsible for buying Registrant’s vacuum cleaners would not be expected to exercise as great a degree of care, but as noted, there is no reason to presume that they would be involved in purchasing Applicant’s products."

Given the inherent technical nature of Zhenhai’s goods and each purchaser’s need to conform those goods to its own industrial needs, the purchasing process would be “so attenuated and lengthy … that there is time for all involved to understand clearly and completely the vendors with whom they are dealing."

The Board concluded that the goods are "so different in kind that purchasers are unlikely to believe they emanate from a single source. The third-party use evidence does nothing to bridge this gap, and in fact widens it, as it shows vacuums and heat exchangers offered under different brands."

And so, the Board reversed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: WYHRR? Would you have refused registration?

Text Copyright John L. Welch 2026.

TTABlog Test: Is FLAT EARTH SURF CLUB Confusable with TERRA PLANA for Clothing?

The USPTO refused to register the mark FLAT EARTH SURF CLUB, in standard character form, for “hats; shirts” [SURF disclaimed], concluding that confusion is likely with the registered mark TERRA PLANA for "“footwear, namely, boots, shoes, sandals and slipper." The Board unsurprisingly found the goods to be related, but what about the marks? Would consumers stop and translate "terra plana" (Portuguese) to "flat earth"? In re Dean Severson, Serial No. 98118905 (February 6, 2026) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

The Examining Attorney argued that the dominant part of Applicant’s mark, FLAT EARTH, is the foreign equivalent of the Cited Mark TERRA PLANA, contending that "terra plana" means "flat earth' in Portuguese, a common modern language. Applicant Severson maintained that the doctrine of foreign equivalents does not apply in this case. The Board agreed with Severson, concluding that the ordinary American purchaser would not translate the cited mark.

First, American consumers, even non-Portuguese speakers, would be familiar with the word “terra,” which appears in English language dictionaries. These dictionaries show that “terra” has meaning in English both as a standalone word and as part of phrases like “terra cotta” and “terra firma.” This supports a finding that consumers would take the phrase “terra plana” as it is and not stop and translate it. *** Second, contrary to the Examining Attorney’s contention, the evidence does not show that the translation of TERRA PLANA in Portuguese to FLAT EARTH in English is direct and literal. [The Office's evidence showed "terra plana" as being translated as "flat earth" and "flat land."]

Comparing the marks, the Board observed that they have different connotations and commercial impressions (noting the incongruity and nonsensical connotation of applicant's mark) and "are not at all similar in appearance or sound because they do not share any of the same words or any words that have similar letters or sounds."

And so, the Board reversed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: In the DANKE/MERCI case, the Board applied the doctrine of equivalents, even though the two words are found in English dictionaries. Arguably, consumers would not translate the two recognized terms, but take them "as is."

Text Copyright John L. Welch 2026.

BARBEE for Social Networking App Not Confusable with, nor Dilutive of, Famous BARBIE mark for Dolls, Says TTAB

In a 70-page opinion, the Board dismissed this opposition to registration of the mark BARBEE, in the logo form shown below, for "Online social networking services accessible by means of downloadable mobile applications." The Board concluded that the mark is neither likely to cause confusion with, nor likely to dilute, Mattel's mark BARBIE, registered for, inter alia, dolls, doll accessories, and online entertainment services. Although the Board deemed the BARBIE mark to be famous for dolls, it found the involved goods and services to be unrelated and the marks dissimilar. This blog post will attempt to hit the highlights. Mattel, Inc. v. BarBee Inc., Opposition No. 91281982 (February 6, 2026) [not precedential] (Opinion by Judge Martha B. Allard).

Opposer Mattel got off on the wrong foot when the Board denied its motion to amend the notice of opposition to include a claim of lack of bona fide intent. The Board ruled that the issue was not tried by implied consent, noting Applicant Barbee's objections to evidence on that issue and finding that Barbee was not "was fairly apprised that the evidence was being offered in support of the unpleaded issue."

Likelihood of Confusion: Barbee failed to provide any probative evidence diminishing the conceptual strength of the BARBIE mark. As to commercial strength, the Board found that "for purposes of the likelihood of confusion analysis, the BARBIE mark is very commercially strong (indeed 'famous' for purposes of likelihood of confusion) for 'dolls,' 'clothing for dolls,' and 'doll houses.'"

With respect to relatedness, Mattel "simply does not point to (nor did we locate) any evidence in the record that might establish relatedness, such as evidence of third-party uses or registrations of Applicant’s identified services and Opposer’s identified goods and services under the same mark. On this record, Opposer has not met its burden of proof and has failed to establish that the parties’ goods and services are related." Nor did Mattel establish that the channels of trade overlap.

Even assuming that the parties’ goods and services are both offered on, for example, Facebook and Instagram, Applicant likens these platforms to departments stores and supermarkets, arguing that advertising on these platforms alone is not enough to establish that the channels of trade overlap. We agree and consider this far too general of an overlap to have any meaningful impact on the likelihood of confusion.

As to the marks, "consumers who encounter Applicant’s mark would readily recognize its dominant element to consist of the terms, 'bar' and 'bee.'" The Board found that the marks "are not sufficiently similar to weigh in favor of a likelihood of confusion."

We agree with Applicant that its mark conveys a different meaning when the compound word BARBEE is considered as a whole, i.e., in combination with the logo consisting of a bee inside a martini glass, i.e., that of a worker bee at a bar. The record shows that BARBIE, on the other hand, is a nickname for the doll, whose full name is Barbara Millicent Roberts, and, as a result, it conveys the impression of a doll named BARBIE.

Balancing the relevant DuPont factors, the Board concluded that confusion is not likely.

Dilution by Blurring: The Board found the mark BARBIE to be famous, for dilution purposes, in connection with dolls. "The duration, extent, and geographic reach of the advertising and publicity of Opposer’s BARBIE mark is exceptional . . . and has resulted in the BARBIE mark remaining in the eye of the general public for decades." However, "Applicant’s BARBEE and Design mark is dissimilar from Opposer’s BARBIE mark in appearance, meaning and commercial impression such that the former does not readily conjure up the latter." Furthermore, there was no evidence that Applicant intended to create an association with Mattel's BARBIE mark.

And so, Mattel failed to prove dilution by blurring.

Dilution by Tarnishment: "Inasmuch as we have determined that the marks are dissimilar, Opposer has not established that its mark will suffer any negative association by Applicant’s mark. In view of the foregoing, Opposer has failed to prove its claim of dilution by tarnishment under Section 43(c) of the Trademark Act, 15 U.S.C. § 1125(c), by a preponderance of the evidence."

Read comments and post your comment here.

TTABlogger comment: I think it's fair to say that "BARBIE" is a household word. But fame only gets one so far. The marks still have to be “sufficiently similar” while applying "the same test as for determining the similarity or dissimilarity of the marks in the likelihood of confusion analysis,” so that the required association exits. See, for example Nike, Inc. v. Peter Maher and Patricia Hoyt Maher, 100 USPQ2d 1018 (TTAB 2011) [TTABlogged here].

Text Copyright John L. Welch 2026.

Finding the Issue of Lack of Bona Fide Intent Tried by Implied Consent, TTAB Sustains Opposition to FIREBURN 1878 for Alcoholic Beverages

The Board sustained this opposition to registration of the mark FIREBURN 1878, in standard character and logo form, for "alcoholic beverages, except beer; liquor." concluding that Applicant Wadada Spirits lacked a bona fide intent to use the marks when it filed the opposed applications. Opposer Sazerac, owner of the mark FIREBALL for the same goods, did not include a claim of lack of bona fide intent in its notice of opposition, but the Board found that the issue had been tried by implied consent. Sazerac Brands, LLC v. Wadada Spirits, LLC, Opposition No. 91283727 (February 4, 2026) [not precedential] (Opinion by Judge Jessica B. Bradley).

Implied Consent: Wadada did not file a brief or submit any evidence, so it never expressly consented to trial of the bona fide intent claim. So, the first question was whether the issue was tried "by implied consent under Fed. R. Civ. P. 15(b), made applicable to Board proceedings by Trademark Rule 2.116(a)." "The Board may find implied consent to the trial of an unpleaded issue “only where the non-offering party (1) raised no objection to the introduction of evidence on the issue, and (2) was fairly apprised that the evidence was being offered in support of the issue."

Sazerac served numerous discovery requests regarding Wadada’s intent to use its marks. In its responses, Wadada did not object to these discovery requests, nor did it object to Sazerac's notice of reliance citing Wadada's responses. And Sazerac listed in its brief, without objection, lack of bona fide intent as one of the issues in this proceeding. "Accordingly, Opposer’s claim of Applicant’s lack of bona fide intent to use was tried by implied consent and 'the pleadings are deemed amended under Fed. R. Civ. P. 15(b)' to include this claim."

Lack of Bona Fide Intent: A party may demonstrate that an applicant lacks the requisite bona fide intent to use by showing that the applicant lacked documentary evidence regarding its intent. Boston Red Sox Baseball Club Ltd. P’ship v. Sherman, No. 91172268, 2008 TTAB LEXIS 67, at *16 (TTAB 2008). In its responses, Wadada stated that it was “not aware of any responsive documents” regarding its strategy for promoting and selling its goods, steps taken to manufacture the goods, licenses or regulatory approvals, distribution agreements, price of the goods, target customers, market research, or media promotion.

Wadada pointed to the prosecution histories of the opposed applications as evidence of its intent. The Board, as usual, rejected this contention: "the mere act of filing intent-to-use applications is insufficient to establish Applicant’s bona fide intention to use its FIREBURN 1878 Marks in commerce for the identified goods."

In its interrogatory answers, Wadada stated that it had no information regarding its intended first use dates, its sales strategy, steps taken to sell the goods, regulatory approvals, channels of trade, price, promotional channels, or target consumers.

The Board concluded that Sazerac had made a prima facie case of lack of bona fide intent, which Wadada failed to rebut. And so, the Board sustained the opposition on that basis, declining to reach Sazerac's likelihood of confusion claim.

Read comments and post your comment here.

TTABlogger comment: This decision reminded me of the Bears' 46-10 win over the Patriots in the 1986 Super Bowl, only worse. BTW: the orange and blue color scheme of the TTABlog is borrowed from the colors of the University of Illinois. George Halas, and Illinois alum, took those colors for his Chicago Bears.

Text Copyright John L. Welch 2026.

"SOUL BNB" Not Confusable With "AIRBNB," Says TTAB, Noting Weakness of "BNB"

In a 45-page opinion, the Board dismissed this opposition to registration of the mark SOUL BNB for “Health spa services for health and wellness of the mind, body and spirit offered in or from a remote, mobile or temporary on-site location," concluding that confusion is unlikely with the registered mark AIRBNB for temporary lodging services, including an online marketplace for temporary accommodations. The Board found the services to be related, the channels of trade and classes of consumers overlapping, and the mark AIRBNB falling "at the higher end of the commercial strength spectrum," with some indirect evidence of actual confusion. Opposer's survey evidence, however, was flawed. The Board, noting the weakness of the term "BNB," found the first DuPont factor - the dissimilarity of the marks - to be dispositive. Airbnb, Inc. v. Soul BnB LLC, Opposition No. 91288785 (February 3, 2026) [not precedential] (Opinion by Judge Robert Lavache).

The Board agreed with the applicant that the services as identified in the opposed application and the cited registrations did not overlap. "In other words, the identification indicates that Applicant offers health spa services, which may be provided in a temporary location, or from a mobile location, or even remotely. The identification does not indicate that Applicant is arranging temporary lodging or accommodations, enabling reservations for that purpose, or even providing information in that field."

However, opposer's evidence showed that users of opposer’s online marketplace for temporary accommodations may also search the marketplace for “Wellness activities in California." Other evidence showed listings for various “wellness-related” experiences that consumers may book through Opposer’s AIRBNB-branded online marketplace, which are offered and provided by apparent third parties identified as 'Hosts.'"

In addition, this evidence establishes that experiences, including wellness activities, can be an integral part of travel and thus are relevant to the travel planning and booking process. Thus, consumers may utilize both Opposer’s and Applicant’s services in a complementary fashion.

The Board therefore found the services to be related, and further that the channels of trade and classes of consumers overlap. "[T]hose making travel arrangements, including reservations for temporary accommodations, may also seek health spa services for wellness, and they may do so through the same channels of trade, including an online marketplace."

Applicant argued that the AIRBNB mark is famous, but its evidence fell short. A party that claims its mark to be famous "must clearly prove it." Opposer relied on the results of a 2021 survey purportedly showing that 32.7% of respondents had an unaided awareness of AIRBNB in connection with the relevant services, while 90.3% had an aided awareness of the mark. The Board agreed that the survey "indicates a relatively high brand awareness of Opposer’s AIRBNB mark. But a couple issues weaken its probative value."

First, the survey was conducted in March 2021, and "thus is now nearly five years old." "[I]t may not accurately reflect contemporary consumer awareness of the AIRBNB mark." Second, “in general, the Board has discouraged heavy reliance on aided awareness to prove fame.”

While aided awareness relies on the prompting of survey participants with a list of marks, including the mark being assessed, unaided awareness does not. Thus, unaided awareness is entitled to more weight than aided awareness on the question of fame. *** Accordingly, we find that, based on the record before us, Opposer has not proved that its AIRBNB mark falls on the strongest end of the strength spectrum for likelihood of confusion purposes. See Coach Servs., 668 F.3d at 1367. That said, it does place at the higher end of the commercial strength spectrum, and is thus entitled to a broader scope of protection against confusingly similar marks.

As to the marks, the Board found that AIR and SOUL are the dominant elements in the respective marks "because they are each more distinctive than BNB." "[W]hen used in connection with bed-and-breakfast services, BNB is likely to be perceived as highly suggestive, if not descriptive." 

Opposer's likelihood of confusion survey was entitled to "little probative weight" because applicant’s services were not correctly characterized, and some of the survey responses were ambiguous. "But the survey does provide some indirect evidence of actual confusion on the part of some consumers. Thus, while Opposer overstates the probative value of the survey, we find that the seventh DuPont factor weighs slightly in favor of a conclusion that confusion is likely."

Balancing the relevant DuPont factors, the Board found that "this is a case where the first DuPont factor is dispositive, because the differences between the marks in sound, appearance, and overall commercial impression outweigh the minimal amount of similarity created by the shared term BNB." And so, it dismissed the opposition.

Read comments and post your comment here.

TTABlogger comment: A few months ago, this opposer failed to prove likelihood of confusion vis-a-vis the mark COMPLETE BNB [TTABlogged here]. That case is now on appeal by way of civil action in the U.S. District Court for the District of Kansas.

Text Copyright John L. Welch 2026.

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

For the past decade, about 90% of Section 2(d) refusals have been affirmed. A TTAB Judge once said to me that one can predict the outcome of a Section 2(d) appeal 95% of the time just by considering the marks and the goods/services. Here are three recent Section 2(d) appeals. Let's see how you do. [Answer in first comment].

In re Bayou Pumps & Products Inc., Serial No. 88057994 (January 27, 2026) [not precedential] (Opinion by Judge Martha B. Allard). [Section 2(d) refusal of the mark TESLA DISK PUMPS for “pumps for machines" [DISK PUMPS disclaimed], in view of the registered mark TESLA & Design for, inter alia, "electric pumps for machines."]

In re Magnify Sportswear, Serial No. 97494080 (January 30, 2026) (Opinion by Judge Catherine Dugan O'Connor) [Section 2(d) refusal to register the mark MAGNIFY SPORTSWEAR & Design (shown below) for, inter alia, "sports pants," "sports shirts; sports shirts with short sleeves," and "sports caps and hats" [SPORTSWEAR disclaimed] in view of the registered mark MAGNAFIED for, inter alia, "pants," "shirts and short-sleeved shirts," and "baseball caps; baseball caps and hats."]

In re Magdalena Bauza LLC, Serial No. 98593407 (January 30, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin). [Section 2(d) refusal of the mark LEGAL PEACEMAKERS for “Attorney services; Attorney services, namely, representation of clients in Family Law matters” [LEGAL disclaimed] in view of the registered mark PEACEMAKER "conflict counseling, mediation, and arbitration services."]

Read comments and post your comment here.

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

Text Copyright John L. Welch 2026.

GOLD PALM Confusable with SILVER PALM for Wine, Says TTAB

The Board sustained an opposition to registration of the mark GOLD PALM on the ground of likelihood of confusion with the registered mark SILVER PALM, both for wine. The second and third DuPont factors (identical goods and presumed same channels of trade) heavily favored opposer, the marks are "overall similar," and none of the other factors favored the applicant. Jackson Family Farms, LLC v. Dylan Fairweather, Opposition No. 91291000 (January 30, 2026) [not precedential] (Opinion by Judge Thomas W. Wellington).

Opposer Jackson Family Farms argued that, although the terms “gold” and “silver” are different in appearance and sound, they may actually increase the likelihood of confusion because consumers "will mistakenly believe that Applicant’s GOLD PALM mark is a variation of Opposer’s mark that Opposer has adopted for use on a higher quality product line extension of its SILVER PALM wine." In support, opposer pointed to the tiered system for medal awards given out in the Olympic Games.

More specifically, opposer relied on evidence showing that this tiered system is frequently applied in the context of wine, including quality awards from competitions, brand labelling, and wine purchasing clubs. Screenshots from retail and winemakers’ websites showed how a winemaker may tout its wine as “gold” and “silver” for purposes of representing certain qualities. The Board found that this evidence "offers some credence to Opposer’s argument that the tiering system, in general and particularly as used in the context of wine, helps bring the marks together."

That is, should consumers be familiar with Opposer’s SILVER PALM wine and then encounter Applicant’s GOLD PALM wine, it is likely these consumers may attribute the initial terms in each mark as merely indicating a quality or status for a series of wines emanating from the same source or the same line of wines from the same winemaker. In other words, the evidence demonstrates that it would be reasonable for the consumers to mistakenly believe that the Opposer’s SILVER PALM wine is second, or has different qualities, in a line of PALM wines that includes Applicant’s GOLD PALM wine.

Opposer asserted that its SILVER PALM mark “has achieved moderate commercial strength,” pointing to its sales, advertising, social media exposure, and the length of time of use of the mark on wine. However, its sales figures covered only the years 2020-2024 and were not placed in context, so the Board was unable to determine their relative significance. There was no evidence regarding opposer’s advertising and promotional expenditures.

In sum, Opposer’s evidence shows its SILVER PALM mark has enjoyed recent success, but the record is not so persuasive to move the commercial strength dial in a meaningful manner. Accordingly, the fifth DuPont factor is neutral in our analysis of the likelihood of confusion.

In an effort to show the weakness of the cited mark (sixth DuPont factor), applicant submitted 235 third-party registrations and evidence of 53 common law uses of marks containing the words "gold," "silver," or "palm." The Board found only ten of the registrations, containing the word "palm," to be probative, and there was no evidence regarding actual use of these marks.

We thus cannot find any commercial weakness. Indeed, in terms of showing that Opposer’s SILVER PALM mark or that the shared term PALM itself is weak, the record before us falls into a category often characterized as being a “far cry” from the type and amount of evidence deemed significant or meaningful in other cases.

The Board concluded that applicant's evidence makes "no meaningful impact" on the strength of opposer's mark.

The Board briefly addressed the fourth (purchaser care), seventh (lack of actual confusion), eighth (opportunity for confusion), ninth (variety of goods with which opposer's mark is used), twelfth (extent of potential confusion), and thirteenth (other relevant facts) DuPont factors and found them to be neutral.

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Text Copyright John L. Welch 2026.