ZEN WAFFLES Confusable with ZEN BAKERY, Says TTAB

The Board upheld a Section 2(d) refusal of the mark ZEN WAFFLES for "Waffles; Filled waffles; Frozen waffles; Waffle mixes; Protien [sic]-enriched waffles" [WAFFLES disclaimed], concluding that confusion is likely with the registered mark ZEN BAKERY in standard character form, for "bakery goods; muffins, cookies, rolls, pastry; bakery goods for retail and wholesale distribution and consumption on or off the premises," and in stylized form for "muffins, cookies, rolls, pastry" [BAKERY disclaimed]. Applicant claimed that ZEN is a weak formative because it "refers to calmness, mindfulness, and wellness, concepts that are routinely used in food and lifestyle branding." The Board didn't buy it. In re Zen Cafe Corp., Serial No. 99185689 (October 7, 2026) [not precedential] (Opinion by Judge Jennifer L. Elgin).

The Board agreed with Examining Attorney Mackenzie Olson's assessment of the conceptual weakness argument: "[p]eople do not tend to seek out waffles and baked goods in a search for peace or calmness; consumers seek out waffles and baked goods because they are hungry." Applicant also claimed that ZEN is commerically weak because "the marketplace is saturated with ZEN-formative marks for tea, matcha, spices, noodles, packaged foods, beverages, cafes, and restaurants" and the term is also used in connection with many other food and wellness-themed products. However, there was no admissible evidence in support of that argument.

As to the marks, the Board acknowledged the “penchant of consumers to shorten marks.” It found the shared distinctive term ZEN to be the dominant element in both marks, resulting in similar appearance and sound. It also noted that applicant's mark could be displayed a style similar to that of the cited stylized mark.

Applicant claimed that the marks have different meanings and connotations: a modern, product-specific brand focused on a particular type of food, as opposed to a traditional bakery business offering a range of baked good. The Board was unmoved: "Applicant's arguments . . . are not well taken or supported by evidence. The far more dominant term is the distinctive ZEN, and waffles and bakery products and pastries are not so different that they impart starkly different connotations to consumers."

As to the goods, the examining attorney submitted twelve third-party use-based registrations that identify goods in both the cited registrations and the application at issue. Evidence of six third-parties,  each selling the goods under a single mark, confirmed the relatedness of the goods. 

Applicant argued that the Board should consider the goods and services actually offered by applicant and registrant: "protein-enriched waffles that are marketed as functional, health-oriented breakfast products" versus "traditional bakery offering fresh baked goods, muffins, cookies, and pastries, distributed through wholesale grocery channels" and no waffles. The Board pointed out that there are no such limitations in the application or cited registrations. "We cannot read limitations into identifications of goods based on either argument or evidence of actual use."

The Examining Attorney’s third-party registration and use evidence is persuasive and uncontroverted. In view of the foregoing, we find that the goods identified in the application are related to the goods identified in the cited registration.

As to channels of trade, "Applicant’s and Registrant’s goods presumptively move in all normal trade channels and to all consumers that purchase such goods. * * * For this reason, the evidence of real-world trade channels and consumers relied on by Applicant are irrelevant." In short, the goods "may be encountered in the same retail outlets by the same consumers, and thus the channels of trade overlap."

Furthermore, bakery goods are low-priced items subject to impulse buying, which increases the likelihood of confusion because purchasers "are held to a lesser standard of purchasing care.” And so, the Board found that the third and fourth DuPont factors favored likelihood of confusion.

Finally, applicant pointed to the lack of evidence of actual confusion, but the Board pointed out that this is an ex parte proceeding in which the owner of the cited registration has no opportunity to submit evidence of actual confusion. Furthermore, applicant did not submit any evidence to show there has been a significant opportunity for actual confusion to have occurred.

In this case, the first and second DuPont factors – which we consider most important – weigh in favor of likelihood of confusion given the similarity of the marks and similarity of the goods. * * * The third and fourth factors also weigh in favor of likelihood of confusion. The fifth, sixth, seventh, and eighth factors are neutral on this record. No factors weigh against likelihood of confusion. We conclude that confusion is likely.

Read comments and post your comment here.

TTABlogger comment: Is this a "WYHA?"? [That double question mark is tricky].

Text Copyright John L. Welch 2026.

TTAB Grants Petition to Cancel STORYTELLER OVERLAND (Clothing) Registrations for Nonuse, Rejects Laches Defense

The Board granted a petition for cancellation of two registrations for the mark STORYTELLER OVERLAND, in standard character and logo forms, for various items of clothing, finding that Respondent Storyteller failed to overcome Petitioner Overland's prima facie case of nonuse. Storyteller made a half-baked attempt at a laches defense, but it was inadequately pled, was not tried by consent, and was not supported by the evidence. Overland Sheepskin Co., Inc. v. Storyteller Overland, LLC, Cancellation No. 92082396 (October 6, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande).

Nonuse: Storyteller did not contest that it had no documentation showing sales as of the filing dates of the underlying applications (in 2018 and 2019). That was sufficient to make out a prima facie case for Petitioner Overland, shifting the burden of production onto Storyteller. [Of course, the ultimate burden to prove nonuse remained on Overland].

In rebuttal, Storyteller relied nearly exclusively on the testimony of its founder, Mr. Hunter, provided during discovery and at trial. The Board went through his testimony and Storyteller's evidence in detail, finding that his testimony was "vague and uncertain as to when Storyteller first used the marks in commerce. "[H]is testimony is liberally infused with a lot of 'would have been's' and sprinkled with a few 'probably’s.'" The "sketchy" documentation offered by Storyteller did not show the sale or interstate transport of any clothing items to the general public as of the relevant dates.

The Federal Circuit has likened assessing evidence of prior use to putting together a jigsaw puzzle, where it is often the case that, while no individual piece proves prior use, sometimes the pieces viewed together bring the prior-use picture into focus. See W. Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122, 1125-26 (Fed. Cir. 1994). Here, however, there are just too many missing pieces for us to complete the puzzle the way Respondent urges us to do. Key gaps include missing documentary corroboration of Mr. Hunter’s vague and imprecise (and keenly-interested) testimony and the lack of any corroboratory testimony from the two people implicated by name in Mr. Hunter’s testimony. 

The Board concluded that Storyteller failed to overcome Petitioner Overland’s prima facie case of nonuse as of either relevant date.

Laches: Storyteller assert in its answer: "Registrant pleads the affirmative defenses of unclean hands, laches, estoppel, and acquiescence.” The Board was not happy: "That’s it. The bare recitation of the names of four equitable affirmative defenses in one short sentence is patently insufficient." "[B]y merely typing the word 'laches' in its Answer, Respondent failed to adequately plead this defense. This prevented Petitioner from obtaining fair notice of the relevant facts and circumstances underlying this defense." That "grossly insufficient" pleading alone warranted rejection of the laches defense.

Furthermore, without express or implied consent, "the Board does not allow the assertion at trial of unpleaded claims or defenses—and we consider Respondent’s one-word recitation of the word 'laches' to be the equivalent of an unpleaded defense."

Respondent said not a word about laches, defending itself only on the merits of the nonuse claim. This had the natural effect of lulling Petitioner into thinking Respondent’s one-word incantation of “laches” in its Answer—assuming Petitioner even noticed it—was a throwaway. In its reply brief—the first chance Petitioner had to confront the defense—Petitioner objected to the belated insertion of laches into the case. We therefore think it entirely unfair for Respondent to have developed the defense for the first time in its defending trial brief. We do not consider the defense to have been tried by implied consent.

Petitioner Overland, apparently out of caution, addressed the merits of the laches issue, and so the Board did too. The Board found that Overland's delay of approximately three years after the registrations issued, before filing its petition for cancellation, was not unreasonable. The Board noted that "[T]he filing of a petition to cancel a registration less than three years after issuance (May 2020) falls comfortably within the time allowed under Section 14(1)." Moreover, Storyteller was put on notice via a cease-and-desist letter in April 2022, and Overland was dealing with other infringers at the time.

The Board also found the Storyteller was not prejudiced by the delay. Storyteller argued that it "significantly invested" in the brand during the delay period, but there was no evidence that this investment involved its clothing products rather than its core camper and van business. And so, the Board saw "no economic prejudice at all, let alone economic prejudice caused by the alleged 'delay.'"

Storyteller claimed evidentiary prejudice because its witness, Mr. Hunter, would have had a better memory of events had the petition been filed earlier. The Board was unmoved.

[I]t seems much more likely to us that Mr. Hunter’s sketchy recall of events concerning clothing stems from (1) his lack of direct involvement in merchandising and (2) his instead being locked on getting Respondent’s first vehicle to the market, and not from any “loss of memory” that occurred in the less-than-three-year period between the issuance of the registration and the filing of this Petition.

Storyteller also claimed that documentary evidence was lost during the delay, but the Board again was unmoved: "So far as we can tell, no evidence connects Respondent’s alleged loss of documentation to any post-registration period of delay."

Finally, the Board observed that "[a] party asserting the defense must also convince us that the equities favor application of the defense under the circumstances." "On this front, Respondent faces a headwind: the strong public policy in ridding the Register of registrations found to be void ab initio." The Board also noted the inequity of Storyteller "surprising Petitioner by developing, in several pages of its trial brief, a defense it hadn’t mentioned since asserting the word 'laches' (lumped together with three other one-word defenses) in its answer.

Respondent offers no reasons why equity favors application of the defense in the circumstances presented here. With no equities that we can discern favoring application of laches and two circumstances disfavoring it, we find that the equities disfavor application of the defense.

And so, the Board rejected Storyteller's laches defense.

Read comments and post your comment here.

TTABlogger comment: Another down-to-earth opinion by Judge Casagrande. BTW: clothing seems to be merely ancillary to Storyteller's main business. One wonders whether this battle was worth it?

Text Copyright John L. Welch 2026.

TTAB Affirms Two Failure-to-Function Refusals: Marks Not Perceived as Source Indicators on Specimens of Use

We haven't had a failure-to-function refusal in a while, but here's a double-header. The Board affirmed refusals to register, on the Supplemental Register, the marks BILL OF RESPONSIBILITIES and DECLARATION OF INTERDEPENDENCE, in standard character form, for educational services in the fields of science, technology, engineering, and mathematics. The Board found that the marks, as displayed on the specimens of use, would not be perceived as source indicators. In re International FIRST Committee Association, Serial Nos. 98849390 and 98849414 (September 28, 2026) [not precedential] (Opinions by Judge Robert Lavache).

The Board observed that "“the central question in determining whether Applicant’s proposed mark functions as a service mark is the commercial impression it makes on the relevant public (e.g., whether the term sought to be registered would be perceived as a mark identifying the source of the services)." "To make this determination we look to the specimens and other evidence of record showing how the designation is actually used in the marketplace."

Examining Attorney Joseph Greene maintained that "consumers will perceive the applied-for mark on the original specimen as merely identifying or referring to the statement of values, and not as the source of any services." The Board agreed.

When viewed in its entirety, [each] specimen is simply a statement of the values [or list of responsibilities] of Applicant’s organization FIRST Global. * * * The fact that the applied-for mark appears on a wall-mounted plaque, where such statements typically appear, reinforces this conclusion.

Furthermore, the examining attorney submitted various excerpts from third-party websites showing that it is common for organizations in various industries to publish "bills of responsibilities" and "declarations of interdependence," setting forth lists of values and responsibilities for their organizations.

The Board concluded that, as to each mark, "the only function the applied-for mark serves is to identify the type and nature of the statements displayed."

Applicant submitted substitute specimens, but they also merely listed the values and responsibilities of First Global, with no reference to any services being provided.

And so, the Board affirmed the refusals.

Read comments and post your comment here.

TTABlogger comment: "[T]the mere fact that the applied-for mark appears on the specimen does not make it a service mark."

Text Copyright John L. Welch 2026.

TTABlog Test: Is CARSCAN Merely Descriptive of Automobile Diagnostic Services?

The USPTO refused to register the proposed mark CARSCAN for "Automobile diagnostic services provided on-line, via a computer network and by telephone," finding it to be merely descriptive under Section 2(e)(1). Applicant Innova argued that CARSCAN is at most suggestive because it "could allude to a multitude of automotive inspection services wholly unrelated to diagnostics," such as a visual survey for dents or a physical smog check, and therefore does not describe its online and telephone diagnostic services with particularity. How do you think this appeal came out? In re Innova Electronics Corporation, Serial No. 97851338 (September 29, 2026) [not precedential] (Opinion by Judge Mark Lebow).

The problem with applicant's argument is that "the test is not whether the mark, viewed in the abstract, could refer to other automotive activities."

Someone who knows that the services are “automobile diagnostic services provided on-line, via a computer network and by telephone” will understand CARSCAN to convey that those diagnostic services involve scanning cars. DuoProSS, 695 F.3d at 1254. The mark need not describe every detail of the identification.

Innova claimed ownership of an existing registration for CARSCAN for "automotive diagnostic devices, including code readers and scan tools," which issued without a descriptiveness refusal. Irrelevant, said the Board. "Each application, however, must be decided on its own record. *** The ’892 Registration covers goods, not the services here, and it does not bind us on this record."

Finally, Innova argued that its use of the mark for more than 17 years for diagnostic goods, and the absence of other live CARSCAN registrations owned by third parties, demonstrate a strong association between Innova and those goods and related services. The Board pointed out, however, that Innova did not claim acquired distinctiveness under Section 2(f). "Evidence that consumers associate a term with a particular source, and evidence of length of use, goes to acquired distinctiveness, not inherent distinctiveness."

And so, the Board sustained the refusal.

Read comments and post your comment here.

TTABlogger comment: Looks like Innova may want to file a new application with a Section 2(f) claim.

Text Copyright John L. Welch 2026.

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

A now-retired TTAB judge once said to me that one can predict the outcome of a Section 2(d) appeal 95% of the time by looking at just the marks and the goods/services. Here are three appeals decided recently. Let's see how you do. [Answers in first comment].

In re Rebel Athletic Inc., Serial No. 98676029 (September 28, 2026) [not precedential] (Opinion by Judge Angela Lykos). [Section 2(d) refusal of the mark REBEL SUPER NOVA for “Gemstones; Artificial gemstones; Glass [jewelry]; Imitation stones for making jewelry all for use with cheer and dance apparel and equipment," in view of the registered mark SUPERNOVA MOISSANITE for “Gemstones” [(MOISSANITE disclaimed]].

In re Preserve Property Co., Serial No. 99048401 (September 30, 2026) [not precedential] (Opinion by Judge Cheryl S. Goodman). [Section 2(d) refusal of the mark PRESERVE PROPERTY CO. for “Rental of vacation accommodation" [PROPERTY CO. disclaimed], in view of the registered mark THE PRESERVE RESORT for “real estate services, namely, rental of vacation property” [RESORT disclaimed].]

In re RZT LLC, Serial No. 98913556 (October 2, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande). [Section 2(d) refusal of the mark DIRDYBIRD for "Eyewear, namely, sunglasses, sports and safety glasses and goggles," in view of the registered mark DIRTYBIRD for "sunglasses."]

Read comments and post your comment here.

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

Text Copyright John L. Welch 2026.

TTAB Finds "JASPE" Deceptively Misdescriptive of Clothing

The Board affirmed a refusal to register the mark JASPE for various clothing items, finding the mark to be deceptively misdescriptive under Section 2(e)(1). The evidence established that Jaspe is a type of textile fabric, and Applicant Lee admitted that her clothing items do not contain jaspe. In re Teresa Michelle Lee, Serial No. 98081572 (September 29, 2026) [not precedential] (Opinion by Judge Christen M. English).

A proposed mark is deceptively misdescriptive under Section 2(e)(1) if: (1) it misdescribes a quality, feature, function, or characteristic of the goods or services with which it is used; and (2) consumers would be likely to believe the misrepresentation.

Examining Attorney Akeela Makshood relied on definitions of the term "jaspe" provided by third parties in the clothing industry (e.g., "Jaspe is a type of fabric characterized by its unique pattern. The fabric is made by weaving together different colors of thread, creating a variegated effect"), as well as on evidence of 13 third parties selling "jaspe" clothing.

The Board disagreed with Applicant Lee’s assertion that the word “jaspe” lacks a stable, commonly understood meaning. The Board found that the word “jaspe” has two descriptive meanings applicable to shirts and pants, as identified in the subject application. First, “jaspe” is a fabric made from unique techniques in dyeing yarn and twisting or weaving two different colors or shades of the dyed yarn. Second, it also means a blended, veined, spotted, mottled or variegated appearance resembling or imitating jasper (a mottled gemstone, shown above). Both meaning are immediately descriptive of clothing with a “jaspe” design or appearance.

Applicant Lee argued that she chose the proposed mark as "a meaningful tribute to her son, Jasper," and not to convey some descriptive meaning in connection with clothing. Irrelevant, said the Board.

Applicant Lee invoked the doctrine of foreign equivalents, arguing that “jaspe” means “jasper” in Spanish and because “Spanish is the most commonly spoken language in the United States after English … a very large population of United States consumers will immediately associate the JASPE mark with the jasper gemstone.” The Board was unimpressed: "the evidence shows that Applicant’s proposed mark is an English word, so the doctrine of foreign equivalents has no application here."

In sum, based on the evidence of record discussed above, we find that the proposed mark JASPE immediately describes shirts and pants that are made from or feature a jaspe fabric or design. * * * The word “jaspe” merely describes a significant feature—jaspe fabric or a jaspe design—that Applicant’s shirts and pants might plausibly possess but do not in fact possess. Accordingly, the first part of the test is met.

Under the second prong of the test, the Board applied the reasonably prudent consumer standard to assess whether consumers are likely to believe the misrepresentation. The evidence showed that consumers are likely to regularly encounter shirts and pants described as “jaspe.” As a result, the Board found that reasonably prudent consumers encountering the proposed mark JASPE for the shirts and pants identified in Applicant’s application are likely to mistakenly believe that these goods are made from or feature jaspe.

And so, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: The Examining Attorney withdrew a Section 2(a) deceptiveness refusal. That would have required proof that the misrepresentation was likely to affect the purchasing decision of a significant or substantial portion of relevant consumers. As you know, deceptively misdescriptive marks may be registered with acquired distinctiveness. Deceptive marks cannot be.

Text Copyright John L. Welch 2026.

TTABlog Quarterly Index: July - September 2026

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:

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

Section 2(c) - Consent to Register:

Section 2(d) - Likelihood of Confusion:

• TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?
• TTABlog Test: Are Plastic Bags Related to Paper Labels Under Section 2(d)? [Yes]
• TTABlog Test: Are these UPSTREAM-Formative Marks Confusable for Insurance Agencies? [Yes]
• TTABlog Test: Is SNOWY THE MOUSE for Plush Toys Confusable with SNOWY for Stuffed Toys? [Yes]
• TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?
• TTABlog Test: Is KARDASHIAN-JENNER for Online News Services Confusable with KARDASHIAN JENNER PRODUCTIONS for Entertainment Services? [Yes]
• Precedential No. 6: "O EL CIELO VALLE DE GUADALUPE" Confusable with CIELO for Wine, TTAB Concludes
• TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?
• TTABlog Test: Is GOSHI for Body Lotions Confusable with GOCHI for Supplements? [Yes]
• TTAB Deems MONTANA EQUINE Confusable with MONTANA ROSE EQUINE THERAPY for Horse-related Services

• TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?
• Naked Consent Agreement Fails to Prevent Section 2(d) Refusals of GODZILLA X KONG: THE NEW EMPIRE over GODZILLA
• TTABlog Test: Is HVNLYDAZE Confusable with HVNLYFIT for Overlapping Clothing Items? [Yes]
• Renown of Serena Williams Doesn't Avoid Refusal of SERENA VENTURES over SERENA for Investment Services
• TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?
• TTABlog Test: Is THE SKIN MIXOLOGY for Skin Care Preparations Confusable with MIXOLOGY for Custom-Blended Body Products? [Yes]
• TTAB Sustains Nike's Section 2(d) Opposition to GOT EM KICKS for Consignment Stores for Retro Sneakers and Clothing
• KUL STOOL for Portable Coolers Confusable with KÜHL for Water Bottles, Says TTAB
• TTABlog Test: Is BRECKIN ANKLES Confusable with BREKENS B & Design for Overlapping Clothing Items? [No]
• TTAB Finds SAAS Services Related to Consulting Services, Rejecting Thor Tech Third-Party Paired Registration Argument
• Law Firm Fails to Win Big in its Opposition to "844-I-WIN-BIG" for Legal Services, TTAB Tosses Out Non-Use and Section 2(d) Claims
• On Remand, TTAB Dismisses ASPIRE BANK Opposition After Re-Assessing First and Sixth DuPont Factors

• TTABlog Test: Are LA & Design and LAV (Stylized) Confusable for Drinking Glasses? [No]
• FLASHIN' ASSASSIN Confusable with ASSASSIN for Fishing Lures, Says TTAB
• TTABlog Test: Is BLANCO (Stylized) Confusable with BLANCO LABEL for Clothing? [Yes]
• TTABlog Test: How did These Three Recent Section 2(d) Appeals turn out?
• Rejecting Extrinsic Evidence, TTAB Finds FUNTASYA Confusable with FUNTASIA ADULT SHOP for Clothing and Retail Store Services
• TTABlog Test: How did These Three Recent Section 2(d) Appeals turn out?
• TTABlog Test: Which of These Three Section 2(d) Refusals Was/Were Reversed?

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

• TTABlog Test: Is "GOLF DARTS" Merely Descriptive of Action Skill Games? [Yes]
• TTABlog Test: Three Recent Section 2(e)(1) Mere Descriptiveness Appeals - How Did They Turn Out?
• TTABlog Test: Is CODEBOX Merely Descriptive of Electronic Lock Boxes? [Yes]
• TTAB Finds "FIND - FETCH - TRANSFER" Merely Descriptive of Delivery Robots
• TTABlog Test: Three More Section 2(e)(1) Mere Descriptiveness Appeals - How Did They Turn Out?
• TTABlog Test: Three Recent Section 2(e)(1) Mere Descriptiveness Appeals - How Did They Turn Out?
• TTABlog Test: Is "ROUNDS" Merely Descriptive of Cigars? [Yes]
• TTAB Sustains Mere Descriptiveness Opposition to REALITY ENGINE for Computer Software Design But Dismisses Lack of Bona Fide Intent Claim
• TTABlog Test: Is MUSEUM OF NAMES Merely Descriptive of Entertainment and Educational Services in the Field of Names? [No]
• TABlog Test: Is NATURAL BRIDGE CAVERNS Merely Descriptive of Theme Park-Related Services? [Yes]
• Rejecting Incongruity Claim, TTAB Finds EGGBAR to be Merely Descriptive of Restaurant Services

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

• SERVICE WEST is Primarily Geographically Descriptive of Furniture Repair, Maintenance, and Transportation Services, Says TTAB

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

• TTABlog Test: Is "HANSEN HONEY FARM" for Honey Primarily Merely a Surname? [Yes]

Section 2(e)(5) - Functionality:

• TTAB Affirms Functionality Refusal of the Color Green for Surveyor Tripods
• TTAB Upholds Section 2(e)(5) Functionality Refusal of Office Chair Wheel Configuration

Section 2(f): Acquired Distinctiveness:

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

Abandonment/Nonuse/Specimen of Use:

• Sale of Four Saxophones over Five-Year Period Suffices to Avoid Abandonment, Say TTAB
• Claim Preclusion and Nonuse Block "ERA 8 BY LAMAR JACKSON" Trademark Application
• TTAB Reverses Specimen Refusal, Finding Webpage Sufficient for Pet Food Products

Dilution by Tarnishment:

• Professor McCarthy: The Trademark Trial and Appeal Board’s (Mis)Treatment of the Anti-Dilution Act
• Ninth Circuit Vacates BAD SPANIELS Injunction Based on Dilution by Tarnishment, Orders Judgment for VIP

Genericness:

• TTAB Finds NEUROPSYCHIATRIC SERVICES, S.C. to be Generic for . . . . Guess What?
• TTAB Deems PULSE DECOMPOSITION ANALYSIS Generic for . . . . Guess What?
• TTAB Finds BALLETCOLLECTIVE to be Generic for . . . . . Guess What?

Lack of Bona Fide Intent:

• TTAB Sustains Mere Descriptiveness Opposition to REALITY ENGINE for Computer Software Design But Dismisses Lack of Bona Fide Intent Claim

Nonownership:

• Precedential No. 7: Law Firm owns BIRTH JUSTICE logo, not the Associate who Conceived the Brand

Reexamination:

• TTAB Affirms Reexamination Decision Cancelling DISCUSS.IO Registration: Mere Offering of Services is not Use of the Mark

Discovery/Evidence/Procedure:

• Precedential No. 8: Tribal Sovereign Immunity Inapplicable in Board Proceedings, Says TTAB
• Changes in Mark and Services Fail to Avoid Claim Preclusion in PET-AGREE GROOMING SUPPLIES Opposition
• Failure to Prove Standing Leads to Denial of ZOCY Cancellation Petition
• Claim Preclusion and Nonuse Block "ERA 8 BY LAMAR JACKSON" Trademark Application

CAFC Decisions:

Supreme Court Decisions:

Recommended Reading:

• Recommended Reading: The Trademark Reporter, July-August 2026 Issue
• Prof. Thomas A. Reichert: The Board Changes Its Mind Without Changing the Record: Factor Six After Apex Bank
• Professor McCarthy: The Trademark Trial and Appeal Board’s (Mis)Treatment of the Anti-Dilution Act
• Recommended Reading: The Trademark Reporter, May-June 2026 Issue

Other:

• TTAB Posts October 2026 Hearing Schedule
• TTAB Posts September 2026 Hearing Schedule
• TTAB Posts July 2026 Hearing Schedule

Text Copyright John L. Welch 2026.

TTAB Posts October 2026 Hearing Schedule

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

October 7, 2026 - 10:00 AM [In-Person]: Home Depot Product Authority, LLC v. Propane Depot Inc., Cancellation No. 92084445 [Petition for cancellation of a registration for the mark shown below left, for "Fuel delivery services featuring propane for homes and businesses" [PROPANE and .COM disclaimed], on the ground of likelihood of confusion with, and likely dilution of, opposer's orange logo (shown below right) registered for home improvement store services [HOME disclaimed].

October 15, 2026 - 10:00 AM [In-Person]: Pharma Cosmetics Laboratories Ltd v. Neora Switzerland Holdings GMBH, Cancellation No. 92079320 [Petition for cancellation of a registration for the mark NEORA for, inter alia, medicated and nonmedicated skin care preparations, on the ground of likely confusion with the registered mark NEOVA for nonmedicated skin care products and medicated skin care preparations.]

October 15, 2026 - 2:00 PM [In-Person]: In re A.J. and R.G. Barber Limited, Serial No. 90647853 [Refusal to register the mark shown below, for "Aged cheese," absent a disclaimer of "1833".]

October 21, 2026 - 11:00 AM [Virtual]: In re SimplyFresco LLC, Serial No. 97435689 [Section 2(d) refusal to register the mark COCINA FRESCA for "sauces; tomato based sauces; salsa; Mexican food sauces" in view of the registered mark CUCINA FRESCA for "Fresh pasta; filled pasta; pasta sauce; and macaroni and cheese."]

October 22, 2026 - 2:00 PM [Virtual]: Encyclopaedia Iranica Foundation Inc. v. Persian Heritage Foundation, Opposition No. 91245273 [Opposition to registration of the mark PERSIAN HERITAGE FOUNDATION and Design shown below left, for "Charitable foundation services, namely, providing fundraising activities, funding, scholarships and/or financial assistance for the furthering of Persian heritage and culture in academia" [PERSIAN HERITAGE FOUNDATION disclaimed] on the grounds of lack of bona fide intent and likelihood of confusion with the common mark "flower" design mark shown below right, for a variety of goods and services, including books and other printed or online publications, publication services, services consisting in promoting preservation and awareness of Iranian culture and heritage, charitable services, namely, providing fundraising activities and granting funds to support preservation and awareness of Iranian culture and heritage.]

Read comments and post your comment here.

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

Text Copyright John L. Welch 2025.

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

A now-retired TTAB judge once said to me that one can predict the outcome of a Section 2(d) appeal 95% of the time by looking at just the marks and the goods/services. Here are three appeals decided recently. Let's see how you do. [Answers in first comment].

In re Charlie Blue Therapy, LLC, Serial No. 99180551 (September 26, 2026) [not precedential] (Opinion by Judge Mark Lebow). [Section 2(d) refusal of the mark CHARLIE BLUE for “Mental health therapy services; Clinical mental health counseling services; Counseling in the field of mental health and wellness; Psychological counseling services in the field of sports,” in view of the registered mark CHARLIE for, inter alia, “Mental health services; Providing mental health and wellness information; Psychotherapy; Psychiatric services; Outpatient and inpatient care services in the fields of mental health, psychology, psychiatry, addiction treatment, and social work; Telemedicine services in the fields of mental health, psychology, psychiatry, addiction treatment, and social work; … Cognitive therapy services; Cognitive-behavioral therapy (CBT); Dialectical behavior therapy (DBT); . . . Managed mental health care and treatment services.”] [Registrant's specimen of use shown below]

In re Happy Valley Hannah, Ltd., Serial No. 98423787 (September 24, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande). [Section 2(d) refusal of the mark THE HAPPIEST VALLEY for “Hats; Ponchos; T-shirts; Clothing jackets; Hooded sweatshirts; Long-sleeved shirts,” in view of the mark HAPPY VALLEY, registered on the Supplemental Register for "Headwear; Shirts; Sweatshirts."]

In re FUL Foods B.V., Serial No. 98061361 (September 23, 2026) [not precedential] (Opinion by Judge Mark Lebow). [Section 2(d) refusal of the mark shown below, for "beverages containing microalgae extracts for use as a dietary supplement" in International Class 5, and “mineral and aerated waters; carbonated drinks, non-alcoholic; non-alcoholic drinks containing fruit juices; fruit drinks and fruit juices; all the aforementioned products enriched with microalgae extract” in International Class 32 [WATER disclaimed] ,view of the registered marks BLUE WATER for a “nutritional supplement drink containing aloe” [WATER disclaimed] and BLU for “waters, namely, bottled waters; waters, namely, bottled natural spring waters; bottled waters; natural spring waters; bottled natural spring waters.”]

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: Is "GOLF DARTS" Merely Descriptive of Action Skill Games?

The USPTO refused to register the proposed mark GOLF DARTS for "action skill games," deeming the mark to be merely descriptive under Section 2(e)(1). Applicant P & P contended that the combination of GOLF and DARTS “presents a bizarre and incongruous meaning that cannot be grasped without some measure of imagination and mental pause,” since its game lacks traditional elements of either golf (no course, holes, etc.) or darts (no feathered darts, needle darts piercing a regulation dartboard, etc.). How do you think this appeal came out? In re P&P Imports LLC, Serial No. 98669267 (September 25, 2026) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

Examining Attorney Claudia A. Kopenski relied on dictionary definitions of GOLF ("a game in which a player using special clubs attempts to sink a ball with as few strokes as possible into each of the 9 or 18 successive holes on a course"), DART (“a small missile usually with a pointed shaft at one end and feathers at the other”) and DARTS ("a game in which darts are thrown at a target"). The Board found that "[t]hese definitions show that golf and darts are known games that use particular implements to attain particular objectives."

P & P’s specimen of use and excerpts from its website and Amazon.com product listing showed that the goods include a “dartboard target,” “darts scoreboard,” and so-called “‘Chip N’ Stick’ golf balls” that are modified with hook-and-loop fasteners so they can stick to the target. Its advertising states" GOLF DARTS: An exciting new chipping game that combines the precision of darts with the fun of golf; The included Chip N’ Stick golf balls stick to the oversized fabric target for scoring."

This evidence shows that Applicant’s “action skill games” include features that combine elements of both golf and darts. When the words GOLF and DARTS are combined into GOLF DARTS and used for Applicant’s goods, the words retain their original meanings as referring to features of the goods, which include aspects of both golf and darts.

The Board acknowledged that the the term GOLF DARTS "may at first glance seem unusual when considered in the abstract," but it found "nothing bizarre or incongruous about the combination of the words GOLF and DARTS when it is considered in relation to P & P's “action skill games."

As seen in Applicant’s specimen and advertising, Applicant’s game combines features from both golf and darts, including a dartboard-style target and modified golf balls. The specimen depicts players hitting golf balls at the dartboard target, and the game is specifically promoted as a way to improve one’s chipping skills while playing classic darts games.

Nor did the Board find that the combination of GOLF and DARTS would be perceived as jarring or suggestive, "especially in light of P & P’s own advertising materials and specimen." Moreover, the examining attorney provided evidence of others using the terms “Golf Darts” or “Dart Golf” with reference to a game that combines features of both golf and darts.

P & P pointed to existing registrations for SMACK DARTS and RINGER DARTS (DARTS disclaimed in both marks) and cancelled registrations for SEX-DARTS and GOLFDARTS, but the Board was unmoved. The cancelled registrations "are of limited value as they are evidence only of the fact that the registrations issued." The other registrations "involve different marks than the applied-for mark GOLF DARTS and are based on entirely different records." "The great variation in facts from case to case prevents the formulation of specific rules for specific fact situations. Each case must be decided on its own merits."

[T]he proposed mark GOLF DARTS directly and immediately conveys information about Applicant’s “action skill games,” namely, that they include features of the games of golf and darts. We therefore find Applicant’s proposed mark to be merely descriptive of the identified goods.

Read comments and post your comment here.

TTABlogger comment: WYHA?

Text Copyright John L. Welch 2026.