TTABlog Test: Is BRECKIN ANKLES Confusable with BREKENS B & Design for Overlapping Clothing Items?

The USPTO refused to register the mark BRECKIN ANKLES for various clothing items "used in relation to basketball," including tops and bottoms [ANKLES disclaimed], concluding that confusion is likely with the mark shown below, for clothing items, including tops and pants. The Board found the goods to be overlapping, but what about the marks? How do you think this came out? In re Andrew Riess, Serial No. 98436600 (July 23, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

The Goods: The Board found that the "tops" of the cited registration encompass Applicant Riess's "tops . . . to be used in relation to basketball," and Riess's "bottoms . . . to be used in relation to basketball" quivalent to registrant's "pants." Because the involved goods are identical in-part, the Board presumed that these goods travel in the same trade channels to the same classes of consumers.

The Board therefore found that the second and third DuPont factors "strongly" support a conclusion that confusion is likely.

The Marks: The Board agreed with the Examining Attorney that BREKENS is the dominant portion of the cited mark. It noted that Applicant's mark is in standard character form, and could be displayed in the same font, style, and style as the word BREKENS in the cited mark.

Even assuming such a depiction of the mark BRECKIN ANKLES, however, we find that the dissimilarities of the marks in appearance outweigh their similarities. Although the dominant word BRECKIN in Applicant’s mark may resemble the word BREKENS in the cited mark, the presence of the word ANKLES in Applicant’s mark makes the marks, in their entireties, slightly dissimilar in appearance.

With respect to sound, the Board agreed with the Examining Attorney that the word BRECKIN, standing alone, likely "is not pronounced 'BREAKING'." However, it observed that "[t]here is no correct pronunciation of a trademark that is not a recognizable word. *** BRECKIN, standing alone, is not a 'recognizable word' in the sense that it does not appear in any of the English-language dictionaries in the record other than as a name of Irish origin, but '[a]bsent evidence to the contrary, we must consider all reasonable possibilities' for the pronunciation of BRECKIN as part of Applicant’s mark BRECKIN ANKLES when it is verbalized in its entirety."

On the other hand, the record showed that consumers of clothing items "to be used in relation to basketball" and 'basketball accessories" are likely to be familiar with the phrase "breaking ankles": "[A] point guard in basketball breaks ankles when they are dribbling and cross over a defender, causing them to trip up on their feet and fall over." The OXFORD ENGLISH DICTIONARY defines the "ankle-breaking" in the same way, albeit more formally. And Google search results provide links to videos captioned “NBA - The Art of Breaking Ankles” and “NBA ‘Broken Ankles Moments.”

We find that for consumers of clothing items “to be used in relation to basketball” and “basketball accessories” sold under Applicant’s mark BRECKIN ANKLES, the pronunciation of the mark as a whole as a slang variant of “breaking ankles,” through the dropping of the “g” in the gerund “breaking,” which involves a common practice in colloquial American English speech, is a reasonable possibility.

And so, the Board found BREKENS and BRECKIN ANKLES to be "slightly dissimilar in sound due to the presence in Applicant’s mark of the word ANKLES, which causes the mark as a whole to be likely to be spoken and heard as something akin to “Breakin’ Ankles.'"

Finally, and most importantly, with respect to meaning, the cited mark would likely be understood to be a name, particularly given the presence of the initial “B” in close proximity to BREKENS in the mark, while Applicant’s mark would likely be understood as a slang variant of the phrase “Breaking Ankles” when used in connection with clothing items “to be used in relation to basketball” and “basketball accessories."

And so, the Board found the marks "somewhat dissimilar" in appearance and sound, and "quite dissimilar" in connotation and commercial impression. "The first DuPont factor strongly supports a conclusion that confusion is not likely."

Ruling that the first DuPont factor was dispositive, the Board reversed the refusal.

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TTABlogger comment: Not quite a slam dunk, but maybe a reverse lay-up?

Text Copyright John L. Welch 2026.

TTAB Finds SAAS Services Related to Consulting Services, Rejecting Thor Tech Third-Party Paired Registration Argument

In a lengthy opinion, the Board upheld a refusal to register the mark GREENVIEW for “Software as a service (SAAS) services featuring software for deploying and reviewing reports, dashboards and analytics in a customizable interface that can be white labeled for external use," concluding that confusion is likely with the registered mark shown below, for business consulting services. There was no doubt about the similarity of the marks. Applicant argued that the services are unrelated, but the Boad took a dim view of that contention. Applicant pointed to 18 pairs of third-party registrations for identical or substantially similar marks, where one entity’s registration covers software and the other’s covers business consulting. The Board found that evidence of little probative value. In re Green Leaf Consulting Group, Inc., Serial No. 98620760 (July 21, 2026) [not precedential] (Opinion by Judge Lawrence T. Stanley, Jr.).

The Board observed that "[w]here a technology service automates or facilitates the same function that a professional service performs, the two may be found intrinsically related. Examining Attorney Jaime Batt's evidence confirmed that "the same entity commonly provides both business consulting services of the type identified in the cited registration and SaaS analytics platforms of the type identified in Applicant’s application." And the Board noted that applicant itself offers both consulting and SaaS analytics under the mark GREEN LEAF CONSULTING GROUP.

Applicant countered the Examining Attorney’s evidence by submitting eighteen pairs of use-based registrations owned by different entities, for identical or substantially similar marks, where one entity’s registration covered software and the other’s covers business consulting. According to applicant, these paired registrations demonstrate the Office’s repeated recognition that business consulting services on the one hand and software or SaaS on the other are not related for likelihood of confusion purposes. See In re Thor Tech, Inc., No. 85667188, 2015 WL 496133, at *4 (TTAB 2015) (reversing a Section 2(d) refusal based in part on approximately 50 pairs of registrations for similar marks owned by different entities for automobiles versus recreational vehicles). [TTABlogged here]

The Board distinguished Thor Tech on its facts: "the examining attorney there relied on only two third-party registrations, the goods were expensive (respectively ranging between about $8,000-23,000 and $17,000-40,000), and the record did not establish overlapping trade channels." It found applicant's registration evidence of "little weight for several reasons." 

First, three of the registrations had been cancelled. Second, there was no evidence "whether the listed marks are currently in use, whether the public is familiar with them, or whether consumers have formed any expectations based on their coexistence."

Third, there was no evidence as to "whether the paired registrants entered into coexistence agreements, whether their marks actually coexisted in the marketplace without confusion, or whether they operate in a crowded field that has conditioned consumers to distinguish among similar marks."

Fourth, these paired registrations "almost certainly present an incomplete picture of USPTO practice. There is no comparative evidence of how many applications covering the relevant services were refused registration based on similar marks." "Moreover, the fact that these types of services may sometimes emanate from different sources does not negate the affirmative evidence that they may also emanate from a common source."

Fifth, each case must be decided on its own merits, and prior decisions of other examining attorneys carry little evidentiary weight and are not binding on the Board.

The paired registrations demonstrate that the USPTO has sometimes permitted coexistence, but they do not establish that confusion never occurs or that the services are categorically unrelated. The Examining Attorney’s affirmative marketplace evidence, particularly Applicant’s own website, demonstrates that these services do in fact emanate from the same source in the actual marketplace − a showing that paired registrations, without more, cannot overcome.

The Board concluded that the second DuPont factor weighed in favor of likelihood of confusion.

The Board next found that the channels of trade overlap. It then considered the consumers for these services and found that they are the same: namely, business professionals and organizations seeking data analytics, reporting, and advisory solutions. Applicant argued that the consumers are sophisticated and exercise a heightened degree of care, but it submitted no supporting evidence. The Board "must consider the full range of potential purchasers and base our analysis on 'the least sophisticated potential purchasers.'" See Stone Lion Cap. Partners, 746 F.3d at 1325.

However, the Board acknowledged that "even the least sophisticated purchaser of SaaS analytics services or business consulting would likely exercise at least some degree of care beyond a casual impulse purchase. These are not inexpensive consumer goods purchased off a shelf; by their nature, they involve a threshold level of evaluation." It concluded that the fourth DuPont factor slightly weighed against finding a likelihood of confusion.

On balance, the factors favoring a likelihood of confusion − the virtual identity of the marks, the relatedness of the services, and the overlapping trade channels − outweigh the modest counterweight of the fourth factor.

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TTABlogger comment: xxx

Text Copyright John L. Welch 2026.

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

Sigal Law sought to register the mark 844-I-WIN-BIG for legal services, but Newton, Udinson, & Hill PLLC opposed, claiming non-use and likelihood of confusion with its common law mark WIN BIG LAW, also for legal services. The Board, however, found that applicant was using its mark as a source indicator as of the filing date of its application, and further found that opposer failed to prove that its alleged mark was distinctive. Newton, Udinson, & Hill PLLC v. Sigal Law Firm, PLLC, Opposition No. 91289155 (July 13, 2026) [not precedential] (Opinion by Judge Mark Lebow).

The Board spent about half of its opinion dealing with various evidentiary and procedural objections, overruling nearly all of them. It found opposer's reply brief was too long, and so it refused to consider the brief.

Likelihood of Confusion: Opposer claimed common law rights dating back to May 2021, but opposer failed to address the issue of whether WIN BIG LAW mark is distinctive "even though Applicant made it an issue." [Emphasis by the Board].

Applicant also made of record approximately 46 third-party registrations for marks containing the words BIG and/or WIN” for legal services “to show the descriptiveness and/or suggestiveness of Opposer’s Mark and its related weakness.” In addition, Opposer itself highlights, in its main brief, that “in a directly related opposition involving the same parties and services, [it] alleges that the phrase ‘WIN BIG’ is merely descriptive or laudatory and so commonly used that it lacks distinctiveness.

Opposer admitted in its pending application for WIN BIG LAW that "the meaning of the phrase is a law practice that 'wins big' on behalf of its clients, and the commercial impression is that the mark describes the service provider." The Board observed that "[t]his is precisely the type of laudatory, outcome-oriented message that has been held merely descriptive in analogous contexts."

The Board found the claimed mark WIN BIG LAW to be merely descriptive. Consequently, opposer was required to prove that the mark had acquired distinctiveness through secondary meaning.

Here, Opposer’s evidence consists primarily of its length of use of the term WIN BIG LAW for around five years, or since May 6, 2021, substantial advertising expenditures, social media activity, and billboards. While this evidence demonstrates commercial promotion of the claimed mark, it consists largely of testimony from an interested party and lacks objective evidence such as consumer surveys or third-party declarations showing that the relevant consumers perceive WIN BIG LAW as identifying Opposer as the source of the services, rather than as a promotional slogan touting successful results.

The Board concluded that, given the highly descriptive nature of the mark WIN BIG LAW, Opposer’s evidence fell short of the "substantial showing" required to establish acquired distinctiveness.

Because Opposer failed to establish that it owns a protectable mark, it failed to prove priority, and so its Section 2(d) claim was dismissed.

Nonuse: In its brief, Opposer argued that applicant’s use did not qualify as bona fide trademark use because (1) applicant’s services are provided only in Michigan, and (2) applicant uses 844-I-WIN-BIG solely as a telephone number and point of contact, rather than as a source identifier for its legal services. The Board was not impressed.

Use of a mark in connection with services that affect interstate commerce satisfies the “use in commerce” requirement of Section 1(a), even if the services themselves are rendered in only one state. * * * Applicant’s website is accessible to potential clients throughout the United States, and its services affect interstate commerce.

As to the question of non-use, the Board offered little discussion: "[t]he evidence shows that Applicant was actively providing personal injury legal services to clients as of the filing date of the application and was displaying 844-I-WIN-BIG on its website in connection with those services and alongside its firm name."

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TTABlogger comment: Opposer, on the last day of its rebuttal period, tried to add a failure-to-function claim, but the Board refused, finding that the claim was not tried by implied consent. 

Text Copyright John L. Welch 2026.

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

In a rare Section 2(e)(2) inter partes proceeding, the Board sustained an opposition to registration of the mark SERVICE WEST (in standard character form), finding it to be primarily geographically descriptive of applicant's services of "Installation, maintenance and repair of furniture, architectural walls and portable trade show booths,” in International Class 37, and “Transportation and storage of goods; transportation of furniture, musical instruments, stage scenery, stage props, costumes, sound equipment, stage machinery, industrial equipment, laboratory equipment and computer equipment; furniture moving; warehouse storage” in International Class 39 [SERVICE disclaimed]. Applicant claimed acquired distinctiveness under Section 2(f), but its proofs fell short. Service West, Inc. v. Service West, Inc., Opposition No. 91293505 [not precedential] (Opinion by Judge Mark A. Thurmon).

In determining whether a mark is primarily geographically descriptive under Section 2(e)(2), the Board considers three questions (quoting In re Newbridge Cutlery Co., 776 F.3d 854, 860-61 (Fed. Cir. 2015): 

1. Is the applied-for mark “the name of a place known generally to the public?” 
2. Would relevant consumers make a services/place association, that is would they “believe that the [services] for which the mark is sought to be registered originate in that place?” and, 
3. Do the services originate from “the geographic region named in the mark?” 

As to the first question, the Board found that the word “WEST” as used in SERVICE WEST is primarily geographically descriptive. On its website, applicant states, “Service West is the West Coast leader in commercial furniture installation, warehousing and logistics.” The Board deemed this statement to be "strong evidence that the word 'west,' at least as used in West Coast, is a place generally known to the public. If that were not the case, Applicant would not use such a label, in a geographic manner, on its own website."

Considering the mark as a whole, the Board found that SERVICE WEST "connotes a business providing furniture installation and related services to customers from its 'West Coast' location." "The mark conveys nothing more than the fact that Applicant’s services, or a substantial part of the services, originate from the 'West,' and in particular here, from the West Coast region."

As to the third question, applicant submitted testimony that 70% of its business comes from California, or from its West Coast locations.

Because the West Cost is a location generally known to the public and applicant's services emanate from there, it is presumed that relevant consumers would make an association between the services and the geographic location. "That is exactly what consumers will do upon hearing or seeing the applied-for mark. Consumers will understand, indeed will be told by Applicant, that furniture-related services may be obtained from this West Coast business. The services/location association is established by the record."

All three prongs of the Section 2(e)(2) test having been satisfied, the Board found that SERVICE WEST is primarily geographically descriptive of applicant's services.

Turning to the Section 2(f) claim, applicant submitted "very little evidence *** perhaps believing that showing a long period of use is sufficient evidence to show distinctiveness." Applicant provided testimony that it has used the SERVICE WEST mark for more than forty years, but the record "raises as many questions as it answers about Applicant’s use through the years."

Applicant relied on a single witness who was employed by applicant since 2019. However, there was no explanation "for how the witness would know what happened years before he joined Applicant’s business."

We find this witness’ testimony as to events before 2019 lacks a proper foundation and cannot be relied upon to prove whether consumers understood the Service West name as a service mark. It is equally plausible that consumers understand Service West as a tradename and not as a distinctive service mark.

In sum, applicant's evidence fell short of supporting its Section 2(f) claim. And so, the Board sustained the opposition.

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TTABlogger comment: Opposer also claimed genericness but submitted no probative evidence on that claim. The Board declined to reach opposer's mere descriptiveness claim.

Text Copyright John L. Welch 2026.

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

The Board upheld a reexamination decision cancelling a registration for the mark DISCUSS.IO for streaming services and SAAS market research services, on the ground that the registrant had failed to use the mark prior to the filing date of its underlying use-based application. The Board tossed aside registrant's claim that it was "unclear" that rendering of the services was required, rather than mere offering of the services, to constitute use of the mark. In re Discuss.io Inc., Reexamination No. 2023-100526R for Registration No. 6729238 (July 17, 2026) [not precedential] (Opinion by Judge Christen M. English).

Not only did Examining Attorney Renee Servance put the registrant on notice that evidence of the rendering of the services was required to show use, but Section 45 of the Trademark Act sets forth two requirements for establishing that a service mark is in use in commerce: (1) the mark must be used or displayed in the sale or advertising of services; and (2) the services must be rendered in commerce. See Coutoure v. Playdom, Inc., 779 F.3d 1379, 1381 (Fed. Cir. 2015).

And so, the issue on appeal was whether registrant was rendering the services – not just promoting them – as of the use-based application date.

Registrant submitted promotional materials, consumer reference guides, several articles, and a Wayback Machine screenshot dated March 16, 2016 (more than five years before the application filing date of May 12, 2021). As to the first two, they plainly did not demonstrate use of the mark in the rendering of the services.

Turning to the articles, even if the statements therein were true, this evidence was "at best, indirect evidence requiring us to infer that Registrant was rendering its services as of the Application Date." The Board observed that this type of indirect evidence "is insufficient to overcome the Director’s finding of a prima facie case of nonuse."

Finally, the Wayback Machine screenshot, even if accepted as accurate, was "not reasonably contemporaneous with the filing date of the application."

It is notable that Registrant did not introduce any direct evidence consisting of a declaration from someone with firsthand knowledge attesting to when Registrant began rendering its services and other pertinent information such as its number of customers or user agreements.

The Board concluded that Registrant’s evidence failed to demonstrate use of the mark in commerce as of the application filing date, and so it affirmed the reexamination decision. "Registrant’s Registration No. 6729238 for the Registered Mark DISCUSS.IO will be cancelled in its entirety in due course under Section 16B(g) of the Trademark Act, 15 U.S.C. § 1066b(g)."

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TTABlogger comment: One might say that registrant's evidence was "use-less."

Text Copyright John L. Welch 2026.

On Remand, TTAB Dismisses ASPIRE BANK Opposition After Re-Assessing First and Sixth DuPont Factors

On remand from the CAFC, the Board dismissed this opposition to registration of ASPIRE BANK & Design (in three similar forms) for "banking and financing services" (BANK disclaimed), concluding that confusion is unlikely with the registered mark ASPIRE for "credit card services." In May 2023, the Board had sustained the opposition [pdf here], but in September 2025 the CAFC vacated and remanded the case for further consideration of the Board's findings regarding the first (similarity of the marks) and the sixth (third-party marks) DuPont factors. [TTABlogged here]. CC Serve Corporation v. Apex Bank, Opposition No. 91254295 (July 17, 2026) [not precedential] (Opinion by Judge Christen M. English).

As to the sixth factor, the CAFC ordered reconsideration of "the appropriate scope of third-party marks eligible for consideration in view of the Board’s factual finding that the parties’ services are highly similar.” As to reconsideration of the first DuPont factor, the court explained that “[b]ecause commercial impression informs the analysis under the first DuPont factor … reconsideration of the sixth DuPont factor may result in a different determination of the mark’s commercial strength or weakness and affect the overall commercial impression.”

The Board had concluded that because "the parties’ services are legally identical to the extent Applicant’s ‘banking and financing services’ encompass Opposer’s ‘credit card services,’ … for purposes of the sixth DuPont factor, the properly defined relevant public are consumers of ‘credit card services.'" The Court held that this “analysis was legally flawed.” According to the CAFC:

The sixth DuPont factor requires the Board to consider similar marks for similar goods and services. In the Board’s analysis of the second DuPont factor, the Board determined that the parties’ services are highly similar, which led the Board to conclude that the second factor weighed heavily in favor of finding likelihood of confusion. When analyzing the sixth Dupont factor, however, the Board restricted the universe of marks it considered to only those relating to credit card services and excluded marks related to other banking and financing services. That was an error.

The appellate court explained that “[w]hen the Board has already made a factual finding that the services are highly similar – in fact, partially legally identical—in its analysis of the second DuPont factor, the Board should retain the same scope in its consideration of similarity under the other factors."

And so, the Board reviewed some 30 third-party marks in use for credit card services, banking services, and financing services, as well as registrations for some of those marks [including, e.g., THE ASPIRE CARD, ASPIRE CHECKING, and ASPIRE FINANCIAL COUNSELING]. Opposer argued that there was no evidence regarding the scope of the third-party use or advertising, but the Board pointed out that "even where the record does not include particulars about the extent of third-party uses in the marketplace, evidence of widespread third-party use may be powerful on its face to demonstrate 'that consumers have been educated to distinguish between different marks on the bases of minute distinctions.'" [See Juice Generation and Jack Wolfskin].

In sum, the Board found that, under the sixth DuPont factor, Opposer’s ASPIRE mark "is commercially and conceptually quite weak as the evidence shows it is common for third parties to adopt and use marks comprised of the first term ASPIRE coupled with a generic word, e.g. ASPIRE CHECKING, ASPIRE SAVINGS, ASPIRE LENDING." See Juice Generation, 794 F.3d at 1338-39 (explaining that “evidence of third-party use bears on the strength or weakness of an opposer’s mark” and that “highly suggestive [marks] are entitled to a narrower scope of protection, i.e., are less likely to generate confusion over source identification, than their more fanciful counterparts.”).

Overall, we find the parties’ marks in their entireties are similar in appearance, sound, connotation and commercial impression. However, taking into account the significant weakness of the shared term ASPIRE, we find that consumers are likely to notice and rely on the minor differences between the marks to distinguish them. * * * The sixth DuPont factor thus weighs heavily against finding a likelihood of confusion. Indeed, we find that the heavy weight of the sixth factor is the dominant consideration in this case.

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TTABlogger comment: Ouch! Three years later, victory is turned into defeat.

Text Copyright John L. Welch 2026.

TTABlog Test: Are LA & Design and LAV (Stylized) Confusable for Drinking Glasses?

In this Section 2(d) opposition, Opposer NameGürok alleged that Applicant TGL Golf's mark shown first below, is likely to cause confusion with its two registered marks shown second below, all for, inter alia, drinking glasses. Since the goods overlap, the Board presumed that these goods travel in the same channels of trade to the same classes of consumers, and it found that the goods are household items purchased with ordinary care. Once again, it all boiled down to the marks. How do you think this came out? NameGürok Turizm Ve Madencilik Anonim Sirketi v. TGL Golf Holdings, LLC, Opposition No. 91293362 (July 15, 2026) [not precedential] (Opinion by Judge Cheryl S. Goodman).

Opposer NameGürok argued that the marks are confusingly similar in terms of appearance and sound because both of its marks contain the letters “LA,” with the lack of the letter “V” in applicant’s mark being "a subtle difference that consumers will not readily perceive." Applicant TGL Golf pointed to the differences in "font, style, and placement," as well as the design element in its marks, as distinguishing features.

TGL Golf maintained that its mark is pronounced as the separate letters “L” and “A” whereas Opposer’s LAV (stylized) marks are pronounced either as the “lav” portion of “lavatory,” or the “lav” portion of “lava.” TGL Golf asserted that the connotation and commercial impression opposer's marks differ with its mark because its mark has a well-known geographic connotation of Los Angeles, whereas opposer’s marks have no English word meaning and are “fanciful.” The Board went with TGL Golf.

When we consider the marks in their entireties, we find the marks are different in appearance and create different commercial impressions. Opposer’s marks are three-letter stylized marks where the letters LAV are recognizable; LAV has no meaning in English in relation to Opposer’s goods. Applicant’s mark is a composite mark consisting of highly stylized lettering which is less discernible or readily perceived as the letters LA, and incorporating a golf club design element, which adds to the overall commercial impression. LA in Applicant’s mark has meaning as a geographic term for Los Angeles and has been disclaimed.

The Board found that, although the marks share the letters LA, "the degree of stylization of LA in Applicant’s mark is so high that it more akin to a design mark rather than a stylized display of the letters LA." If therefore found that TGL Golf's mark "is not similar in sound, appearance, connotation or commercial impression to Opposer’s marks," and that the first DuPont factor weighed strongly in favor of a conclusion that confusion is unlikely.

Because TGL Golf's mark is" not similar in sound, appearance, connotation or commercial impression to Opposer’s marks," the first DuPont factor weighed heavily in favor of a conclusion that confusion is unlikely, and was dispositive.

And so, the Board dismissed the opposition.

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TTABlogger comment: WYHO?

Text Copyright John L. Welch 2026.

Rejecting Incongruity Claim, TTAB Finds EGGBAR to be Merely Descriptive of Restaurant Services

The Board upheld a refusal to register the proposed mark EGGBAR for "restaurant services featuring breakfast sandwiches, hash browns, coffee, matcha, and fruit drinks," finding the mark to be merely descriptive of the services. Applicant argued that EGGBAR is an incongruous combination of terms because "[w]hen consumers encounter the term 'BAR,' their immediate association is with alcohol service, not with a particular food or menu item." The Board didn't buy it. In re Eggbar Holdings, LLC, 98619785 (July 14, 2026) [not precedential] (Opinion by Judge Elizabeth K. Brock).

Examining Attorney Harrison Neidish relied on dictionary definitions of "egg" [“[t]he oval, thin-shelled reproductive body of a bird, especially that of a hen, used as a food"]” and BAR [a. A counter at which drinks, especially alcoholic drinks, and sometimes food are served. b. An establishment or room having such a counter]. Another dictionary noted use of "bar" in a “shop sense … a coffee bar.”

A screenshot of applicant's menu pictured seven sandwiches, including a “steam-baked egg,” either in the description or visible in the sandwich depicted. [website here]. "This shows that the 'breakfast sandwiches' listed in the identification of services all include eggs." Other evidence showed that "eggs are part of restaurant meals and that restaurants include bars."

The evidence establishes that the terms EGG and BAR retain their descriptive meaning in the proposed mark EGGBAR. An egg is a food sold in restaurants, and bars can also sell food; EGGBAR restaurant services immediately informs purchasers that the menu will include foods containing eggs. Additionally, consumers are used to phrases like “coffee bar,” confirming that the term "bar" is not limited to alcoholic drinks (as noted in the dictionary definitions).

Applicant argued that the proposed mark does not immediately describe its services because the “reasoning process requires mental steps and inference” since EGGBAR is an incongruous combination of terms. However, Applicant offered no evidence to support its assertion that consumers would associate the mark "with alcohol service and not with a particular food or menu item." Moreover, this argument was belied by the dictionary evidence that a "bar" may serve food, by the dictionary example of a "coffee bar," and by the evidence of food restaurants that include bars and bar service.

Finally, applicant contended that EGGBAR "does not fall within the category of marks whose meanings are immediately apparent." The Board pointed out, however, that "[d]escriptiveness of a mark is not considered in the abstract. Rather, it is considered in relation to the particular goods for which registration is sought, the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods because of the manner of its use or intended use." In short, "the question is not whether someone presented with only the mark could guess what the goods or services are. Rather, the question is whether someone who knows what the goods or services are will understand the mark to convey information about them."

The record shows that in connection with Applicant’s services, purchasers would recognize EGGBAR as immediately conveying knowledge of a quality of Applicant’s “restaurant services featuring breakfast sandwiches” and other foods, namely, that the menu will include breakfast sandwiches containing eggs served in a “bar” setting or at a counter.

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TTABlogger comment: WYHA? 

Text Copyright John L. Welch 2026.

FLASHIN' ASSASSIN Confusable with ASSASSIN for Fishing Lures, Says TTAB

The Board granted a petition for cancellation of a registration for the mark FLASHIN' ASSASSIN for, inter alia, fishing lures, concluding that confusion is likely with the registered mark ASSASSIN for inter alia, fishing lures. With the goods overlapping in-part and the channels of trade and classes of customers presumed to be the same for the overlapping goods, it all boiled down to the marks, with the second and third DuPont factors weighing "heavily" against the applicant. Bass Assassin Lures, Inc. v. Flashin Assassin Fishing Lures, L.L.C., Cancellation No. 92085824 (July 10,2026) [not precedential] (Opinion by Judge Wendy B. Cohen).

Petitioner Bass Assassin argued that its mark ASSASSIN is commercially strong, based on sales of lures under the "Bass Assassin and various other Assassin trademarks" since 1986. Petitioner testified that it had sold more than 29 million bags of fishing lures in connection with the Assassin Family of Marks. However, its financial figures were not broken down by mark and there was no evidence of market share that would allow the Board to assess the import of this evidence. The Board concluded that the evidence did not "suggest a level of commercial success and brand recognition that would indicate Petitioner’s [ASSASSIN] mark should be accorded more legal protection under the fifth DuPont factor."

As to the marks, the Board acknowledged that "the presence of FLASHIN’ contributes to the connotation of Respondent’s mark as a whole and certainly lends something to Respondent’s mark that is not present in Petitioner’s mark. Also, the presence of FLASHIN’ may reduce the visual similarities of the marks in a side-by-side comparison or help to differentiate the parties’ marks in sound when fully articulated." Nonetheless, the Board found the marks to be similar in appearance, sound, connotation and commercial impression. In comparing the parties’ marks, the Board noted that "where one party’s mark incorporates the entirety of the other party’s mark, the fact that it does typically increases the similarity between the two."

The Board found the term FLASHIN' to be a "descriptive or at least highly suggestive term," since respondent's lures "flash in cases where the sun can hit them when in use," according to respondent. Therefore, "FLASHIN’ is less significant in creating the connotation and commercial impression of Respondent’s mark and has little, if any, source-identifying significance."

Despite any rhyming qualities FLASHIN’ ASSASSIN might have, it does not impart a separate and distinct overall commercial impression. There is nothing of record that supports the conclusion that the rhyming quality imparts a new or different meaning to ASSASSIN or that FLASHIN’ does not retain its descriptive significance in relation to Respondent’s goods.

The Board noted that it is also likely that customers familiar with respondent’s lures may mistakenly associate petitioner’s ASSASSIN mark with Respondent or assume that the goods have a common source, "viewing Petitioner’s ASSASSIN mark as an abbreviated form of Respondent’s FLASHIN’ ASSASSIN mark." "In addition, consumers may shorten Respondent’s mark to ASSASSIN alone given the propensity of consumers to shorten marks when speaking."

The Board found the fourth, seventh, and eight factors to be neutral, and concluded that confusion as to source is likely.

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TTABlogger comment: Fishing tends to make me drowsy, and so did this opinion. You might say it wasn't alluring.

Text Copyright John L. Welch 2026.

TTABlog Test: Is BLANCO (Stylized) Confusable with BLANCO LABEL for Clothing?

Applicant Matthew Sinnerich applied to register the mark shown below, for "Hats; Pants; Shirts; Shorts; Socks; Collared shirts; Polo shirts; T-shirts; Tops as clothing," but Examining Attorney Catherine Lee concluded the confusion was likely with the registered mark BLANCO LABEL for "Clothing, Namely, Shirts, Pants, Sweatpants, Jeans, Sweatshirts, Bandanas, Hats, Shoes, Sox, Vests, Sweaters, Scarves, Pajamas, Sleepwear, Rain wear, Blouses, headbands, Belts for Clothing, Hosiery, Swimwear" [LABEL disclaimed]. The goods overlap and the marks share the word BLANCO. Was there any hope for Mr. Sinnreich in this appeal? In re Matthew Sinnreich, Serial No. 98713935 (July 7, 2026) [not precedential] (Opinion by Judge Cheryl S. Goodman).

The Board unsurprisingly found the dominant portion of the cited mark to be BLANCO because the term LABEL had been disclaimed and was entitled to less weight in the Section 2(d) analysis. "Applicant’s mark BLANCO (stylized) is subsumed within the cited mark, and where the entirety of one mark is incorporated within another, likelihood of confusion has frequently been found."

As to appearance, Applicant ’s mark is in stylized form while the cited mark is in standard character form without a claim to any particular display. A standard character mark may be presented in any manner, including in the same size, font, and uppercase and lowercase letters as Applicant’s stylized mark.

Applicant Sinnreich argued that the word LABEL creates "visual, audio, and connoted differences between marks" in particular in "the textual portions, visual appearance, and pronunciations" with the connotation and commercial impression of a "luxurious brand identity" versus a "product line or a collection." The Board was unmoved.

Sinnreich also argued that BLANCO is a two-syllable, one-word "stand-alone term" consisting of six letters while BLANCO LABEL is a two-word "compound expression" having four syllables and 11 letters with 'elongated" pronunciation. The Board was unimpressed. "Although there are differences in appearance and pronunciation between the marks due to the additional term LABEL in the cited mark, consumers do not focus on the number of syllables, letters, or words in each mark."

Sinnreich claimed that the marks have "divergent meanings:" his mark "conveys a singular concept - whether as a surname, a geographic reference, or the Spanish word for 'white'" whereas the cited mark conveys "a compound idea in which the term LABEL modifies the meaning of BLANCO" conveying the idea of "a sub-brand or a labeled series of goods." According to Sinnreich, his mark evokes a luxurious brand and "thoughts of penmanship [LOL - ed.], craftsmanship and high quality" while BLANCO LABEL evokes the impression of "a product line, a collection; or a branded tag." The Board didn't buy it.

BLANCO in both marks could evoke the same meaning (surname, geographic name, or Spanish word for white) and give the impression of the name of a clothing label or luxurious brand identity with Applicant’s BLANCO (stylized) mark being viewed merely as a variant of Registrant’s BLANCO LABEL mark. We find that the marks create similar commercial impressions.

The Board considered the impact of the inclusion of the word LABEL in the cited mark but found that "this difference is not sufficient to overcome the overall similarities of appearance, sound, connotation, and commercial impression resulting from the initial shared term BLANCO, particularly in view of the fallible memories of consumers, who retain general impressions of trademarks." Moreover, the Board noted that consumers have a "penchant" for shortening marks, and found it likely that "consumers would shorten BLANCO LABEL simply to BLANCO in verbalizing and recalling the cited mark."

Finding the mark to be "highly similar" in appearance, sound, meaning and commercial impression, the Board affirmed the refusal.

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TTABlogger comment: WYHA?

Text Copyright John L. Welch 2026.