TTABlog Test: Is "READY, FETCH, GO!" for Dog Toys Confusable with "READY SET FETCH" for Balls and Flying Discs?

The USPTO refused to register the proposed mark READY, FETCH, GO! for "dog toys," concluding that confusion is likely with the registered mark READY SET FETCH for "flying discs; flying disc throwing apparatus; rubber balls; tennis balls; tennis ball throwing apparatus." Applicant NAAJ LLC argued that its mark conveys "a spirited, call-to action voice" that "signals energy and enthusiasm," whereas the cited mark READY SET FETCH "introduces a more restrained, perhaps even instructive tone." I think you know how this appeal came out. In re NAAJ LLC, Serial No. 98577734 (April 21, 2026) [not precedential] (Opinion by Judge Angela Lykos).

The Goods: The evidence submitted by Examining Attorney Robert Ratcliffe established that rubber balls and flying discs are types of dog toys. NAAJ’s goods are identified as “dog toys,” and the cited registration identifies, inter alia, “rubber balls” and “flying discs.” Thus, the involved goods are identical in-part. Third-party registration and website evidence also demonstrated the relatedness of the goods.

Applicant’s and Registrant’s “dog toys,” “rubber balls,” and “flying discs” presumptively move in all normal trade channels and to consumers that purchase such goods.

The Marks: NAAJ further argued that the exclamation point and the inclusion of the word GO! at the end of its mark “gives the mark a joyful, commanding presence closely aligned with the action of play and engagement between a dog and its owner” while the cited mark “reads as a single command or product title, not a playful interaction.” NAAJ was barking up the wrong tree.

Both marks are short, three-word phrases that evoke the familiar idiom “Ready, set, go,” making them similar in structure and cadence. Each mark begins with READY and incorporates the word FETCH. While FETCH appears in a different position in each mark, that distinction does not significantly alter the marks’ appearance or sound. Nor does the substitution of GET for GO appreciably change the marks in sight or sound.

The Board found that the marks are similar in sound, appearance, meaning and commercial impression.

As to connotation and commercial impression, the Board observed that both marks are a clever play on the expression “Ready, set, go.” "The shared term FETCH projects the same connotation by suggesting that a pet dog is ready to play a game of fetch with a dog toy, stick, ball or flying disc." The minor differences in punctuation "do not materially distinguish the marks in either sound, appearance, connotation or commercial impression."

Other Factors: NAAJ's evidence of six third-party registrations for marks based on the same theme fell short both in number and probative value. Only four covered similar goods and those did not include the word "fetch." The Board deemed the sixth DuPont factor to be neutral. The lack of evidence of actual confusion was meaningless because there was no proof that NAAJ's mark had been put into use.

Conclusion: Balancing the relevant DuPont factors, the Board found confusion likely and it affirmed the refusal.

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TTABlogger comment: My old friend, David Perlsack, had a dog that would chase his own tail when David called, "GO FETCH YOURSELF."

Text Copyright John L. Welch 2026.

TTABlog Test: Are Perfume and Clothing Related Under Section 2(d)?

The USPTO refused to register the mark shown below for "Perfumery; Bleaching preparations for laundry use; Cleaning, polishing, scouring and abrasive preparations; Essential oils; Non-medicated cosmetics; Non-medicated dentifrices; Non-medicated toiletry preparations," concluding that confusion is likely with the registered mark ASSAF, in standard characters, for "Clothing, namely, hats, caps, and beanies." Applicant argued that its goods have a different nature and purpose than hats and caps, that its goods are expensive and its customers sophisticated and careful, and that its mark focuses on horses, which are used in the branding for exclusive and expensive goods. I suspect you know how this appeal came out. In re Assef Trading Est., Serial No. 98642858 (April 20, 2026) [not precedential] (Opinion by Judge Mark A. Thurmon).

The Board found the marks to be similar in appearance. It acknowledged that the shield design is distinctive and is likely to be noticed and remembered by consumers, but the only English word in applicant's mark is identical to the cited mark. "This type of similarity can lead to consumer confusion, even when one of the marks contains a design element."

The non-Latin script in Applicant’s mark transliterates to ASSAF, so consumers who can read the English word ASSAF and the Arabic script will not find that this script distinguishes the marks, but instead will see the literal elements of the mark as ASSAF ASSAF. For those consumers who cannot read Arabic, the Arabic script will likely be viewed as another design element of the mark, one that does not provide much distinction from the cited ASSAF mark.

Most importantly, according to the Board, "the marks are identical in sound for consumers who do not attempt to pronounce the Arabic script in Applicant’s mark." The word ASSAF has no established meaning in English, but because the same word is used in both marks, the marks will share the same meaning." The additional elements in applican's mark "create a commercial impression somewhat different from that of the cited mark. But the dominant, and sole English literal element, of both marks is the word ASSAF, so the dominant or primary commercial impression created by the two marks will be the same."

The Board noted that if horse designs are in common use for similar goods, as applicant claimed, then the horse element in applicant's mark is less distinctive and less likely to be relied upon by consumers than the other elements of the mark.

Turning to the goods, Examining Attorney Philip Liu submitted evidence that marks used on clothing, including caps and hats, are also often used with perfumes. He also provided thirteen third-party, use-based registrations that identify both perfume (as identified in the Application) and hats or caps (as identified in the cited Registration).

Applicant argues that its goods have a different nature and purpose than hats and caps. While this is surely true—perfumes are not head coverings, as hats and caps are—it is largely irrelevant. Differences of this type might be important for some goods, but as we noted above, the key question here is whether the evidence shows that these different goods are related in the minds of consumers.

The Board found that the goods are related, and so the second DuPont factor supported the refusal.

The third-party use evidence demonstrated that the channels of trade overlap. Applicant's argument that its customers are sophisticated and careful ignored the lack of any limitation in the application as to price or type of customer. "With no limits on the goods, we find that the perfume goods identified in the Application may include products at any price point. Similarly, the hats and caps identified in the cited Registration may include such goods at any price point." Moreover, there was no evidence to support applicant's assertion regarding purchaser care.

Finally, we are required to base our decision “on the least sophisticated potential purchasers.” Stone Lion Capital Partners, 746 F.3d at 1325. We find that the “least sophisticated potential purchasers” of perfumes, hats and caps, which are ordinary consumer goods, are likely to exercise ordinary care in making purchasing decisions, which does not alter the likelihood of confusion. The fourth DuPont factor is neutral.

The Board observed that only the first three DuPont factors were probative in this appeal, and all three supported the Section 2(d) refusal.

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TTABlogger comment: Clothing, jewelry, perfume - all related.

Text Copyright John L. Welch 2026.

TTABlog Test: Which of These Three Recent Section 2(d) Oppositions Was/Were Dismissed?

Here are three recent TTAB decisions in Section 2(d) oppositions. At least one of the oppositons was dismissed and the other(s) sustained. Remembering that a TTAB Judge (now retired) once said to me that one can predict the outcome of a Section 2(d) claim 95% of the time (at least in ex parte appeals) just by considering the marks and the goods/services, how do you think these came out? [Answer in first comment].

Chatham Imports, Inc. v. Farmer’s Creed Corp., Opposition No. 91283157 (March 30, 2026) [not precedential] (Opinion by Judge Martha B. Allard). [Section 2(d) opposition to registration of the mark FARMER'S CREED for "Alcoholic beverages, except beer," in view of the registered mark FARMER’S for “Alcoholic beverages, namely, distilled spirits."]

Allied Lomar, Inc. v. Talnua, Inc, Opposition No. 91284670 (April 13, 2026) [not precedential] (Opinion by Judge Jennifer L. Elgin) [Section 2(d) refusal to register of the mark OLDE SAINT’S KEEP for "distilled spirits," in view of the registered mark OLDE ST. NICK “alcoholic beverages, except beers.”]

Sun Garden Packing Co. v. Da Napoli Foods LLC, Opposition No. 91284802 (April 17, 2026) [not precedential] (Opinion by Judge Thomas W. Wellington). [Section 2(d) opposition to registration of the mark shown below left, for "Pasta; Sauces; Packaged meals consisting primarily of pasta or rice," in view of the registered mark shown below right, for "canned tomatoes, canned tomato puree, and canned tomato paste."

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TTABlogger comment: How did you do?

Text Copyright John L. Welch 2026.

Supreme Court Denies Petition for Certiorari in RAPUNZEL Consumer Standing Case

In an order issued this morning, the Supreme Court denied Professor Rebecca Curtin's petition for a writ of certiorari seeking review of the Federal Circuit's ruling in Curtin v. United Trademark Holdings, Inc., 2025 USPQ2d 784 (Fed. Cir. 2025) [precedential]. [TTABlogged here]. The CAFC had affirmed the Board's holding that "only commercial actors affected by the mark’s registration fall within the zone of interests to oppose the registration as generic, descriptive, or [failing to function as a trademark]," and it upheld the Board's dismissal of mere consumer Curtin's opposition to registration of the mark RAPUNZEL for dolls and toy figures on the ground of lack of statutory standing. [Petition for certiorari here: Curtin v. United Trademark Holdings, Inc., No. 25-435 (October 3, 2025)].

Professor Curtin based her petition on the argument that the Lexmark test for statutory standing did not apply to administrative proceedings, and she pointed to a conflict in the circuit courts of appeal.

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TTABlogger comment: Too bad. Now I think the USPTO should return the application for further examination on the issues of genericness, mere descriptiveness, and failure to function.

Text Copyright John L. Welch 2026.

TTAB Upholds Surname Refusal of GOLIA for Candy

The TTAB affirmed a Section 2(e)(4) refusal of proposed mark GOLIA for "non-medicated candy confectioneries and non-medicated candies," finding the term to be primarily merely as surname. Applicant Michael J. Golia argued that "the surname GOLIA is exceedingly rare and virtually unknown to the American public" and he pointed to the Italian translation of GOLIATH, purportedly establishing a readily understood non-surname meaning. The Board (cast in the role of David?) was unmoved. [BTW: GOLIA is the brand name of a popular Italian candy (depicted below) having no apparent connection with this applicant - ed.]. In re Michael J. Golia, Serial No. 98516586 (April 17, 2026) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

Examining Attorney Kennina Ip contended that Applicant Michael J. Golia's own use of the mark as a surname is probative evidence of the significance of the term. The Board agreed. It further observed that even if the name is relatively rare, the purchasing public has been exposed to GOLIA as a surname through media references to individuals with that name. "Section 2(e)(4) makes no distinction between rare and commonplace surnames ... and even a rare surname is unregistrable if its primary significance to purchasers is a surname."

The evidence included more than two dozen media mentions and references to individuals with the surname Golia, including jazz musician Vinny Golia and New York Mets trainer Joe Golia. Applicant faulted the Examining Attorney for not presenting evidence of a “nationally famous figure" with the surname GOLIA, but the Board pointed out that there is no such evidentiary requirement. "Although the total number of persons in the United States with the surname Golia may be somewhat low, the examples of people in law, the arts, business, and other fields having the surname Golia show meaningful and fairly broad public exposure to GOLIA as a surname."

The Board found that GOLIA has no recognized meaning beyond its surname significance. Applicant argued that GOLIA is recognized as the Italian equivalent of GOLIATH, a Biblical and cultural reference connoting size and strength, but he provided no dictionary or translation evidence that "Golia" means "Goliath." The Board concluded that "the evidence supports a finding that the primary significance of GOLIA is as a surname, potentially derived from the Biblical name “Goliath” as a reflection of the physical characteristic of size."

Finally, the Board found that GOLIA has the structure and pronunciation of a surname: "we have multiple examples of other surnames that share the GOL- prefix or the -IA suffix as well as examples of surnames that differ by only one letter. In particular, on their face names such as GOLIAS, GOLIO, GOLIS and GOLLA are quite similar to GOLIA."

And so, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: To state the obvious, you start out behind the 8-ball when the mark you're trying to register is your own surname.

Text Copyright John L. Welch 2026.

TTABlog Test: Is PLAYER EXCLUSIVE for Distilled Spirits Confusable with PLAYERS VODKA for Vodka?

The USPTO refused to register the proposed mark PLAYER EXCLUSIVE, in standard characters, for “Bourbon; Distilled spirits,” [EXCLUSIVE disclaimed], concluding that confusion is likely with the registered mark PLAYERS VODKA, in standard characters, for “vodka” [VODKA disclaimed]. Applicant Game Changer argued that the marks differ in meaning because the word "exclusive" shows that the goods sold under the mark will be special in some way, and further that a “player exclusive” is an item designed uniquely for a particular player, such a special basketball shoes made for a particular basketball player. How do you think this appeal came out? In re Game Changer Bourbon LLC, Serial No. 97934533 (April 15,2026) [not precedential] (Opinion by Judge George C. Pologeorgis).

The Marks: The first words in the marks are essentially identical, and the second words are disclaimed. "The first word, 'PLAYER(S),' is dominant in both marks and is more likely to be relied upon and remembered by consumers. The marks, considered in their entireties, look similar." They are also similar in sound: "It is likely that many consumers familiar with the cited mark may refer to the mark as simply PLAYERS when asking for the goods."

We also find the marks are similar in meaning and commercial impression. The shared use of the word “player” in both marks creates a common meaning. Consumers familiar with PLAYERS VODKA are likely to view PLAYER EXCLUSIVE for bourbon and other distilled spirits (which includes vodka) as a variation or extension of the PLAYERS VODKA mark. Many consumers will mistakenly conclude that these businesses operated under these marks are connected, perhaps thinking the new “exclusive” version is a business extension involving more exclusive or limited production goods.

As to Game Changer's aforementioned arguments, the Board found that "most consumers of Applicant’s bourbon and other distilled spirits are unlikely to connect these goods with custom-made basketball shoes." Moreover, "consumers familiar with the cited PLAYERS VODKA mark may view Applicant’s mark as a business extension, with Registrant extending its business from vodka to other exclusive distilled spirits."

"The marks are similar. The first DuPont factor supports the refusal."

The Goods: Since vodka is a distilled spirit, the goods overlap, and so the second DuPont factor strongly supports the refusal. The overlapping goods are presumed to travel in the same normal trade channels to the same classes of consumers, and so the third DuPont factor "also heavily favors a finding that confusion is likely."

Game Changer argued that its goods are very expensive and thus will be purchased with care. It submitted evidence confirming high prices for some of its goods (e.g., $4500 for a small bottle of Steph Curry endorsed bourbon). However, because the application contains no restrictions on the goods, it covers bourbon and distilled spirits sold at any price point. The Board found the fourth DuPont factor to be neutral.

Conclusion: "The marks are similar and the goods are identical in part. The identical in part goods are presumed to travel through the same trade channels and offered to the same classes of purchasers. The record supports the refusal. Confusion is likely."

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TTABlogger comment: WYHA? The "line extension" finding is another of the Boards's makeweight arguments. In the real world, do you think there would be any confusion?

Text Copyright John L. Welch 2026.

TTABlog Test: Is SEAFISH Merely Descriptive of Seafood?

The USPTO refused to register the proposed mark SEAFISH for, inter alia, "seafood products and fish-based food products, namely, processed seafood; frozen seafood; frozen fish," on the ground of mere descriptiveness under Section 2(e)(1). Applicant Triunfo Foods argued that SEAFISH is not merely descriptive but only suggestive because it is “not an actual word, but a new, fun play on words,” a "'whimsical' and 'unitary term that is an imaginative combination of 'sea' and 'fish, which together make up more than the sum of their separate parts.'" How do you think this appeal came out? In re Triunfo Foods Import & Export Corp., Serial No. 97898551 (April 1, 2026) [not precedential] (Opinion by Judge Angela Lykos).

Triunfo further argued that, while competitors in the seafood industry may need to use the words "sea" and "fish" to describe their products, “it is highly unlikely any of them would need to use SEAFISH in order to sell their products” because “[t]here are innumerable other terms and combinations thereof which a competitor could adopt to describe similar goods.” However, the evidence submitted by Examining Attorney Brett Golden "belie[d] applicant's arguments."

“Sea fish,” otherwise known as “saltwater fish,” is a well-recognized designation in the seafood industry and includes many species for human consumption such as bluefin tuna and Atlantic cod. Contrary to Applicant’s assertion, the term “sea fish” appears as an entry in multiple dictionaries to denote “any fish found in salt waters” or “a fish that lives in the sea, rather than in rivers or lakes. The fact that Applicant’s mark is presented as a single term as opposed to the two separate words “sea” and “fish” does not lessen its merely descriptive nature. *** This is especially so here since “seafish” is also an alternative form of spelling of “sea fish.”

Triunfo did not submit any evidence to support its claim that the term SEAFISH is "whimsical." The evidence shows that "SEAFISH in relation to Applicant’s goods is not unique but rather is part of ordinary U.S. lexicon."

Triunfo pointed to its prior application for the same mark and goods, as to which another examining attorney also issued a mere descriptiveness final refusal but subsequently withdrew the refusal while the application was on appeal at the Board. However, that application was abandoned for failure to timely file a statement of use. The Board noted that it is "not bound by a previous examining attorney’s decision."

In sum, Applicant’s proposed mark SEAFISH immediately conveys, without conjecture or speculation, the type of Applicant’s fish or a key attribute of Applicant’s processed fish and seafood products. The evidence further shows that consumers may specifically shop for “seafish” for nutritional value or other health reasons. Competitors in the seafood industry should be free to use this merely descriptive designation when describing their own fish items to the public in advertising and marketing materials

And so, the Board affirmed the refusal.

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TTABlogger comment: Is this a WYHA? Too bad for the applicant. It had the registration with reach, but watched it swim away

Text Copyright John L. Welch 2026.

TTABlog Test: Is Costume Jewelry Related to Clothing Under Section 2(d)?

The USPTO refused to register the mark WORLD SPORTS (in standard characters) for "costume jewelry, namely, metal charms for necklaces and bracelets" [SPORTS disclaimed], concluding that confusion is likely with the identical mark registered for "shirts; sweatshirts; headwear, namely, hats, caps, and beanies." The first DuPont factor weighed "heavily" in favor of affirmance of the refusal, but what about the goods? How do you think this came out? In re Twinchew LLC, Serial No. 98289940 (April 8, 2026) [not precedential] (Opinion by Judge David K. Heasley).

The Marks: Applicant Twinchew feebly argued that that its mark, WORLD SPORTS, as used on its metal charms for necklaces and bracelets, "will only be attached with the company name, TWINCHEW LLC,” and will only be displayed in a heart shape. So what?, said the Board. “In determining the applicant’s right to registration, only the mark as set forth in the application may be considered; whether or not the mark is used with an associated house mark is not controlling.”

Twinchew asserted that the cited mark is highly descriptive of registrant's goods, namely, sports-related clothing intended for a global market, and is therefore weak, pointing to three registrations and a pending application for marks containing the term WORLD SPORTS, and four websites offering sportswear under names that include that term.

The Board observed that the cited mark issued under Section 2(f), an admission that the mark was not inherently distinctive. However, from the point of its registration, the cited mark "is entitled to the presumption that it has acquired distinctiveness" and the registration is presumed to be valid. "Applicant’s argument that Registrant’s mark is 'highly descriptive' is tantamount to an impermissible collateral attack on the cited registered mark, which cannot be countenanced absent a petition for cancellation."

The Board concluded that Twinchew's third-party evidence failed to weaken the cited mark, either conceptually or commercially. Of the three third-party registrations and one application it presented, only one was for sportswear. Moreover, all were based on Sections 44(e) or 66(a) of the Act and not on used in commerce. "They thus carry even less probative value." Twinchew's four third-party website examples showed variant uses of “World” and “Sports,” but fell far short of the “ubiquitous” or “considerable” use that the Federal Circuit found to demonstrate weakness in Jack Wolfskin and Juice Generation.

All in all, no commercial weakness has been shown under the sixth DuPont factor. Registrant’s WORLD SPORTS mark has some inherent conceptual weakness, but has been accepted for registration based on acquired distinctiveness. “[E]ven if [Registrant’s] marks are inherently weak, that is not fatal to a finding of likelihood of confusion because even weak marks are entitled to protection against confusion."

The Goods: The Board once again noted that "[w]here, as here, the respective marks are identical, the degree of similarity or relatedness between the goods needed to support a finding of likelihood of confusion declines." To show the relatedness of the goods, Examining Attorney Diane Collopy relied on six websites [Ralph Lauren, Banana Republic, Tommy Hilfiger, Gucci, Ann Taylor, and Tory Burch] that offer both jewelry and clothing. The Board was impressed.

In this case, the respective goods--shirts, sweatshirts and headwear on the one hand and metal charms for necklaces and bracelets on the other--can be purchased on the same shopping trip, can be worn on the upper body, and can complement each other when worn together.

Twinchew argued that this third-party evidence was not probative, since registrant is not a fashion designer but rather a sports agency and thus the involved goods travel through different trade channels to different types of purchasers. The Board was unmoved. "'[A]pplicant’s reliance on registrant’s website in an attempt to restrict the scope of registrant’s goods is to no avail. An applicant may not restrict the scope of the goods covered in the cited registration by argument or extrinsic evidence.'" [Emphasis by the Board].

What’s more, even if we were to credit Applicant’s argument, and to find that Registrant’s identified clothing items were promotional items, collateral to its sports agency business, that would not render the respective goods unrelated. Sports-related apparel, such as a cap or a sweatshirt, may be worn as part of a casual ensemble that includes sports-related metal charms for necklaces and bracelets.

Conclusion: Although the cited mark has some conceptual weakness (but no commercial weakness) even weak marks are entitled to protection against likely confusion. And so, the Board affirmed the refusal.

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TTABlogger comment: Do you think the registrant, in the real world, would care if someone sold charms under the WORLD SPORTS mark? BTW: another makeweight argument regarding complementary use.

Text Copyright John L. Welch 2026.

TTABlog Test: Are Dental Implants Related to Syringes Under Section 2(d)?

The USPTO refused to register the mark TRIACTIVE for dental implants, concluding that confusion is likely with the registered mark TRIACTIV (standard characters) for, inter alia, syringes for medical use. The Board found the marks to be "very similar in appearance, sound, connotation, and overall commercial impression." But what about the goods? How do you think this came out? In re Paragon Implant LLC, Serial No. 98745742 (April 8, 2026) [not precedential] (Opinion by Judge George C. Pologeorgis).

Examining Attorney Rebekah Richardson submitted screenshots from nine dental and medical supply company websites offering both “dental implants” and either “syringes” or “catheters,” "but not necessarily under the same mark." [Emphasis added]. "While these websites do not demonstrate that the parties’ respective goods are sold under the same mark, they nonetheless demonstrate that relevant consumers have become accustomed to seeing both 'dental implants' and either “syringes” or “catheters” sold by the same entity."

Moreover, it is common knowledge that dental professionals employ needles and syringes, as well as intravenous catheters, to administer local anesthetics for various dental procedures, including the fitting and placement of “dental implants.” Thus, relevant consumers of the parties’ respective goods may perceive them as complementary in nature.

As to channels of trade, the third-party website evidence showed that "Applicant’s goods and Registrant’s goods are the type of goods that may be provided in the same online marketplace to similar or overlapping purchasers."

The Board acknowledged that Applicant Paragon's goods are directed to dental professionals, and the purchasers of the registrant's goods may be sophisticated and discriminating. However, that "does not necessarily mean that they are sophisticated or knowledgeable in the field of trademarks or immune from source confusion." "This is especially true here where the marks at issue are highly similar, the goods are related and the trade channels overlap." 

The Board concluded that confusion is likely, and so it affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: Compare this decision with the Board's recent DURAJECT decision [TTABlogged here], reversing a Section 2(d) refusal because the USPTO failed to show that opthalmic instruments and bone cement injectors are related goods. Both items could be found on the websites of certain large medical suppliers, but not under the same mark. Also, I think the "complementary" finding is just a makeweight. 

Text Copyright John L. Welch 2026.

CAFC Affirms TTAB: Stick Figure for Vapes Not Confusable with "X" for Cigars

In a dubiously precedential decision, the CAFC upheld the dismissal of Fuente Marketing's opposition to registration of the mark shown immediately below, for oral vaporizers (vapes), concluding that confusion is unlikely with Fuente's registered mark X for cigars, ashtrays, cigar cutters, and lighters. The Board determined that, although many of the DuPont factors weighed in Fuente's favor, the distinct commercial impressions created by the marks were sufficient to negate any likelihood of confusion. Fuente Marketing Ltd. v. Vaporous Technologies, LLC, Appeal No. 2024-1460 (Fed. Cir. April 5, 2025) [precedential].

Fuente challenged the Board’s analysis of the first and fifth DuPont factors—respectively, the similarity of the marks and the fame of Fuente’s registered X marks. Fuente also challenged the Board’s overall weighing of the factors. Vaporous contested the Board’s analysis of DuPont factors three and four—the similarity between the parties’ trade channels and the relative sophistication of each party’s consumers.

The Marks: The Board found that consumers would perceive Vaporous’s mark as a stick figure rather than the letter X. Fuente contended that the Board erred in relying on the parties’ stipulation that Vaporous's mark "consists of an abstract stick figure" (the wording in Vaporous's application) because the stipulation did not address how consumers would perceive the mark. See In re I.AM.Symbolic, LLC, 866 F.3d 1315, 1323 (Fed. Cir. 2017); Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 203 (Fed. Cir. 1992) (comparing commercial impression of marks from the perspective of purchasers of the goods under the registrations). The CAFC, however, concluded that the Board's reliance on the stipulation was harmless error, pointing out that the Board "reached the same dissimilarity conclusion without reference to the stipulation, and the Board’s conclusion is supported by substantial evidence." See Henkel Corp. v. Procter & Gamble Co., 560 F.3d 1286, 1289 n.2 (Fed. Cir. 2009) (error harmless considering express disavowal of reliance on erroneous rationale).

Fuente also argued that the Board ignored evidence that Vaporous’s mark would not be perceived as a stick figure, pointing to Vaporous's use of the mark "as part of its larger DABX branding." But not only did Fuente previously argue that the Board could not consider such external evidence, but the court was not persuaded that the Board "ignored evidence, much less relevant evidence."

To the extent that Fuente is advocating that we consider Vaporous’s use of the mark in connection with other marks not part of the applied- for mark, we decline to do so. See Denney v. Elizabeth Arden Sales Corp., 263 F.2d 347, 348 (C.C.P.A. 1959) (“In determining the applicant’s right to registration, only the mark as set forth in the application may be considered; whether or not the mark is used with an associated house mark is not controlling.”). The correct inquiry requires comparison only of the applied-for mark to Fuente’s registered X marks. In re I.AM.Symbolic, 866 F.3d at 1324.

The CAFC was simply "not persuaded that the Board failed to consider evidence in the record," concluding that "[s]ubstantial evidence supports the Board’s conclusion that consumers are likely to perceive the mark as a stick figure, and we may not reweigh the evidence on appeal." See In re NTP, Inc., 654 F.3d 1279, 1292 (Fed. Cir. 2011).

Fuente maintained that the Board failed to consider the sound of the involved marks, but actually the Board expressly found that Vaporous’s mark has no pronunciation and therefore “does not sound like the letter X.” And finally, Fuente claimed that the Board should have applied the legal principle that where the “parties’ goods are closely related, a lesser degree of similarity between the marks may be sufficient to give rise to a likelihood of confusion.” The CAFC brushed that argument aside because it "assumes what it aims to prove. It presupposes that substantial and confusing similarities between the marks exist when the Board found that they did not. The Board cannot alter its tolerance for similarities between the marks if it finds none exist."

Trade Channels and Buyer Sophistication: Vaporous contended that the Board erred regarding factors 3 and 4 because it "ignored reality," pointing to Fuente's prior coexistence agreement with another entity, stating that cigar purchasers are sophisticated and discerning consumers. Vaporous further asserted that Fuente's cigars "often sell quickly and are difficult to locate." The CAFC concluded that the Board did not err.

Registrability of an applicant’s mark “must be decided on the basis of the identification of goods set forth in the application,” regardless of what the record reveals as to the current real-world nature of the applicant’s goods, channels of trade, or class of purchasers. See Octocom Sys., Inc. v. Houston Comp. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990) (emphasis added).

Fame (Strength) of Fuente's Mark: The Board found that Fuente's X mark was arbitrary and conceptually strong, but as to commercial strength, Fuente failed to show that consumers independently consider the letter “X,” standing alone, as a source indicator. "Fuente’s evidence of marketplace recognition largely depicted the letter X integrated into other marks and advertising." The Board concluded that the X marks were entitled only to the same “protection accorded any inherently distinctive mark” and categorized factor 5 as neutral in the likelihood of confusion analysis.

Fuente asserted that the Board gave "no weight" to the conceptual strength of the X marks. Not so, said the CAFC: "the Board acknowledged the X marks are arbitrary, and thus conceptually strong, while separately concluding that this conceptual strength is offset by the marks’ limited commercial strength." [Emphasis by the CAFC]. The Board's finding that the fifth DuPont factor is neutral was supported by substantial evidence."

Third-Party Marks: The Board "may have been in error" when it stated that, under the sixth DuPont factor, Vaporous failed to submit any evidence of third-party use of similar marks on similar goods. However, "its overall assignment of little probative weight to the evidence" was not erroneous.

Vaporous’s evidence of a single third-party mark in use is insufficient to demonstrate a crowded field of similar marks sufficient to suggest consumers are accustomed to carefully distinguishing between such marks. See Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1235 (Fed. Cir. 2025). As such, we see no error in the Board’s assignment of “little probative weight” to Vaporous’s evidence.

Balancing the Factors: Fuente asserted that the Board failed to explain its balancing of the DuPont factors so that the appellate court could discern the Board’s rationale. The CAFC, however, saw no such problem:

[T]he Board’s path is discernable: As Fuente concedes, the Board concluded all but one DuPont factor was neutral or favored a likelihood of confusion. The Board’s finding that, nonetheless, there was no likelihood of confusion between the parties’ marks thus necessitates the conclusion that it considered factor one—the similarity or dissimilarity of the marks—sufficient, on its own, to find no likelihood of confusion. This is enough for us to discern the Board’s path to dismissal. See In re Charger Ventures LLC, 64 F.4th 1375, 1384 (Fed. Cir. 2023) (“We will, nevertheless, uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” (cleaned up)).

Fuente also contended that the Board erred in giving dispositive weight to the dissimilarity of the marks under the first DuPont factor and failing to give sufficient weight to the other factors. Again, the court was unmoved. "The likelihood of confusion analysis is a balancing test, and a single DuPont factor “may be dispositive,” especially where, like here, “that single factor is the dissimilarity of the marks.” Champagne Louis Roederer, S.A. v. Delicato Vineyards, 148 F.3d 1373, 1375 (Fed. Cir. 1998)."

In sum, the CAFC agreed with the Board that the differences between the marks outweighed all of the other relevant DuPont factors.

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TTABlogger comment: I don't see why such a fact-dependent ruling was deemed precedential. What's new here?

Text Copyright John L. Welch 2026.

Trade Name Use is not Trademark Use, Says TTAB

Things turned out not so grate for Maple Leaf Cheesemakers in its attempt to register the mark MAPLE LEAF CHEESE CO-OP for "cheese." Considering the only specimen of use, the Board found that Maple Leaf used the phrase only as a trade name and not as a source indicator, and so the proposed mark was not eligible for registration. In re Maple Leaf Cheesemakers, Inc., Serial No. 88663903 (April 8, 2026) [not precedential] (Opinion by Judge Thomas W. Wellington).

Section 45 of the Act defines a trade name as "any name used by a person to identify his or her business or vocation." "If a proposed mark functions solely as a trade name, registration must be refused." See, e.g., Martahus, 3 F.3d at 421. Note that a designation may function as both a trade name and a trademark.

“The question of whether a name used as a trade name also functions as a trademark is one of fact, and is determined from the manner in which the name is used and the probable impact on purchasers and prospective purchasers.” Diamond Hill Farms, 1994 TTAB LEXIS 16, at *2. Factors to consider include whether Applicant has used its full corporate name or entity designation, capitalized its name, utilized its name in the same lettering style as other matter, used its name in a significantly bolder or larger style of type, or displayed its name in a contrasting color. In re Univar Corp., No. 73786565, 1991 TTAB LEXIS 31, at *5.

Here, Maple Leaf's specimen of use (shown above) was a label for its packaged cheese. The proposed mark appears on the bottom line of the label, immediately preceded by the words "Distributed By:" and followed by Maple Leaf's city/state/zip code and website address. The font size, style and color for the “Distributed By:” wording is the same as that for the proposed mark. The Board agreed with Examining Attorney David Brookshire that consumers "will perceive MAPLE LEAF CHEESE CO-OP merely as a trade name, and not as a product source-identifier."

Specifically, “the applied-for mark only has the impression of identifying a business or a vocation, and therefore is an unregistrable trade name.” In contrast, consumers encountering this packaging will view the composite mark, MAPLE LEAF CHEESE with a maple leaf and banner design, that appears stylized, in color, and much more prominently at the top as the source-identifier for the cheese.

The Board observed that whether MAPLE LEAF CHEESE CO-OP is actually a business or entity name is irrelevant. It "does not distinguish Applicant’s goods from those of others. Accordingly, the proposed mark cannot proceed to registration under Sections 1, 2, and 45 of the Act."

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TTABlogger comment: WYHA? I think that I would have amended the basis to intent-to-use, rather than appeal. 

Text Copyright John L. Welch 2026.