Recommended Reading: Ted Davis, "Inter Partes Litigation and Ex Parte Appeals Before the Trademark Trial and Appeal Board: A Primer"

Trademark scholar and expert Ted Davis provides a useful and highly readable primer on practice before the TTAB in his article, "Inter Partes Litigation and Ex Parte Appeals Before the Trademark Trial and Appeal Board: A Primer" [pdf here], properly cited as: Davis, Theodore H. Jr. (2026) "Inter Partes Litigation and Ex Parte Appeals Before the Trademark Trial and Appeal Board: A Primer," Akron Law Review: Vol. 59: Iss. 2, Article 5.

This Article introduces the Board to legal professionals who may be unfamiliar with it and the occasionally arcane aspects of Board practice. Part II addresses the composition of the Board and its jurisdiction. Part III surveys the two general types of matters heard by the Board, namely, inter partes disputes in which the Board acts as a panel of first resort hearing adversarial matters between two or more parties. Parts IV and V address the logistics of ex parte appeals to the Board and challenges to its decisions by dissatisfied litigants, respectively. Finally, Part VI examines the possibly preclusive weight received by Board decisions in later litigation between the same parties or those in privity with them

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Text Copyright John L. Welch 2026.

COGNAC LIFE for Magazine Publishing Confusable with Famous COGNAC Regional Certification Mark, Says TTAB

Applicant Dickens may have had Great Expectations when he filed his application to register COGNAC LIFE for "magazine publishing," but he fell on Hard Times when the Board sustained this opposition based on likelihood of confusion with the common-law regional certification mark COGNAC for brandy that comes from the Cognac region of France. The Board found that the COGNAC mark falls on the "high end of the fame spectrum," and therefore merits "a wider than normal scope of protection."  Institut National de l’Origine et de la Qualité and Bureau National Interprofessionnel du Cognac v. Daret K. Dickens, Opposition No. 91272506 (February 2, 2026) [not precedential] (Opinion by Judge Christen M. English).

"Geographic certification marks are used to certify that authorized users’ goods originate in a specific geographic region." "The test for determining likelihood of confusion with respect to certification marks is the same as that applied to trademarks, i.e., the DuPont analysis derived from the seminal case setting forth possible probative factors."

COGNAC products have been sold continuously in the United States since 1794. From 2018 to 2022, 500 million bottles of COGNAC were sold, valued at about 7.5 billion dollars. The BNIC and its members have spent millions of dollars on promotions "that focus on showcasing and promoting the COGNAC geographical indication and creating awareness about the regions’ history, terroir, and product range expertise among US consumers.” Certified COGNAC wine spirts have garnered publicity “in countless publications" and COGNAC brandy has been the subject of many books.

[T]he evidence of record ... demonstrates that a significant portion of the relevant consuming public recognizes the COGNAC certification mark as indicating that brandy bearing the mark comes from the Cognac region of France, and falls on the high end of the fame spectrum as an indicator of geographic origin for purposes of the fifth DuPont factor, and therefore enjoys a wider than normal scope of protection.

As to Applicant Dickens's mark, the Board found that word COGNAC is dominant and the additional term LIFE "does not sufficiently distinguish Applicant’s mark from Opposers’ mark in any meaningful way." "[B]ecause Opposer’s COGNAC mark is the first word in Applicant’s mark, the marks share a similar sound, despite the additional second word LIFE in Applicant’s mark."

The record supports that consumers have been exposed to sources touting COGNAC brandy as a lifestyle product – a symbol of luxury, affluence, and sophistication – and describing COGNAC brandy as a popular drink in rap and hip-hop culture. Consumers therefore are likely to associate the COGNAC certification mark with such lifestyles. The addition of the second word LIFE in Applicant’s COGNAC LIFE mark thus reinforces and highlights the connotation and commercial impression of the COGNAC mark with certain lifestyles, and thus, the parties’ marks are quite similar in connotation and commercial impression.

In sum, the Board found the involved marks to be similar in appearance and sound, and very similar in connotation and commercial impression, and so the first DuPont factor weighed heavily in favor of finding confusion likely.

As to the issue of relatedness, "the parties’ correctly base their comparison under the second DuPont factor on the authorized users’ goods, namely, brandy from the Cognac region of France produced in accordance with prescribed standards." The evidence showed that COGNAC brandy is a product commonly featured in magazine articles as well as other publications. Moreover, since 2018, BNIC has published CULTURE COGNAC, a digital magazine promoting certified Cognac products.

Applicant’s magazine publishing services are broad enough to encompass publishing magazines for others on all subject matters, including lifestyle magazines such as those featuring content related to food and alcoholic beverages, including Cognac brandy.

We thus find a commercial relationship between COGNAC brandy and Applicant’s COGNAC LIFE “magazine publishing” services for others. In addition, circumstances support finding “something more” here, namely, the renown of Opposers’ COGNAC certification mark and the substantial similarity between the parties’ marks in meaning and commercial impression.

The parties’ trade channels, the buyers to whom sales are made and buyer sophistication under the third and fourth DuPont factors are neutral, as are the seventh and eighth DuPont factors concerning the absence of actual confusion.

Balancing the relevant DuPont factors, the Board concluded that confusion is likely.

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TTABlogger comment: Nothing very novel about this opinion. BTW: there are a dozen or so registered COGNAC-formative marks for brandy and the like, owned by various entities. Why hasn't COGNAC been registered as a certification mark?

Text Copyright John L. Welch 2026.

TTAB Posts March 2026 Hearing Schedule

The Trademark Trial and Appeal Board (Tee-Tee-Ā-Bee) has scheduled four oral hearings for the month of March 2026. In the first and fourth cases listed below, the hearings will held virtually. In the second case, the hearing will be in-person at Clara Barton Auditorium, 600 Dulany Street, Concourse Level, Alexandria, VA. In the third case, the hearing will be in-person at the Madison East Building 600 Dulany Street, 9th Floor (Hearing Room C), Alexandria, VA. Briefs and other papers for each case may be found at TTABVUE via the links provided.

March 11, 2026 - 10:30 AM [Virtual]: In re Kickstand Brewery, LLC, Serial Nos. 97912847 [Refusal to register the mark KIDCKSTAND BREWING COMPANY for "restaurant services" on the ground of likelihood of confusion with the registered marks KICKSTAND for "Beer, ale and lager" and KICKSTAND COCKTAILS for "Alcoholic beverages, except beer; Alcoholic cocktail mixes; Alcoholic cocktails; Alcoholic mixed beverages except beers; Ready-to-drink alcoholic beverages, other than beer-based" [COCKTAILS disclaimed].]

March 16, 2026 - 3:15 PM [In-person - public event]: In re Wemby Corporation, Serial No. 97752244 [Refusal to register the mark WEMBY for "Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms" on the ground of false suggestion of a connection with NBA star Victor Wembanyama, aka "WEMBY," under Section 2(a), and lack of written consent to register from Victor Wembanyama, under Section 2(c).]

March 19, 2026 - 11 AM [In-person]: In re Keeling Curve Foundation v. Global Warming Mitigation Project, Opposition No. 91285627 [Opposition to registration of the mark KEELING CURVE PRIZE for "Accepting and administering monetary charitable contributions for supporting climate change solutions" on the grounds of fraud, false connection under Section 2(a), and likelihood of confusion under Section 2(d).]

March 26, 2026 - 10 AM [Virtual]: In re Knoll, Inc., Serial No. 98370045 [Refusal to register the mark TUGENDHAT for "seating furniture" on the ground that the mark is primarily merely a surname under Section 2(e)(4).]

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Text Copyright John L. Welch 2025.

TTAB Finds TARGETED DELIVERY Generic for . . . Guess What?

The Board affirmed a refusal to register the proposed mark TARGETED DELIVERY, on the Supplemental Register, for "Providing temporary use of on-line non-downloadable software tools for implementing a production and delivery timeline for direct mail campaigns with enhanced scheduling and pricing options to ensure delivery to household mailboxes nationwide within a three-day time window," deeming the term to be generic for the services. Applicant argued that the term "is almost exclusively used in conjunction with targeting specified individuals or audiences to receive direct mail," not targeting a specific date range. In re Data Network Marketing, Inc., Serial No. 97817090 (February 27, 2026) [not precedential] (Opinion by Judge Mark A. Thurmon).

As usual, the Board found the relevant genus to be defined by applicant's recitation of services. The relevant consumers are individuals and businesses that use direct mail campaigns for marketing or informational purposes.

As for applicant's argument about targeting, "[b]oth the record and common sense refute this argument." "Applicant’s own website states that "'Targeted Delivery' is our proprietary program that ensures you land in mailboxes—nationwide—within a three-day window."

This statement makes clear that the target of Applicant’s direct mail program is a date range. There is nothing distinctive about calling your service what it is, and that is exactly what Applicant has done here. *** Applicant’s argument that 'targeted delivery' is used 'almost exclusively' to refer to customer targeting is misplaced. The evidence shows that multiple targets may be used in direct mail marketing, and that timing is a key target for many such campaigns. To claim exclusive rights to use the phrase "Targeted Delivery" is clearly inconsistent with the reality of this business segment.

The Board agreed with the applicant that one meaning of "targeted delivery" is "targeting individuals or audiences to receive direct mail." That fact, however, "does not undermine the refusal because terms often have multiple meanings."

The reference to the “primary” meaning of the phrase in the genericness standard does not mean that only one meaning of a word or phrase is generic. Consumers who know that Applicant provides targeted delivery based on a date range (i.e., the relevant genus for our analysis), will understand the applied-for mark to refer to that genus.

And so, the Board affirmed the refusal.

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TTABlogger comment: Can't get much more descriptive than that.

Text Copyright John L. Welch 2026.

Davis and Welch: The Trademark Reporter's 2026 "Annual Review" of U.S. Trademark Cases

The Trademark Reporter has published its latest "Annual Review" of U.S. Trademark Cases: "The Seventy-Eighth Year of Administration of the Lanham Act of 1946," by Theodore H. Davis, Jr. and yours truly, John L. Welch. [download pdf here].

Ted Davis points out that "This year’s edition covers, inter alia, genericness, the post-Jack Daniel’s viability of the restrictive Rogers v. Grimaldi test for liability, the continued slide into incoherence of the nominative fair use doctrine in the Ninth Circuit, and the dark specter of consumer standing in inter partes actions before the Trademark Trial and Appeal Board." On the TTAB side, most of the interesting action took place at the CAFC, including its RAPUNZEL standing decision, now awaiting Supreme Court review. In VETEMENTS it provided new guidelines for application of the often-puzzling doctrine of foreign equivalents. At the TTAB, the Plumrose decision should not be overlooked, particularly by foreign trademark owners seeking to protect their marks based on reputation in this country. And the Board's ratification of its Chutter ruling that reckless disregard for the truth is enough to support a fraud claim will lower the bar for proving fraud, though just how much remains to be seen.

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TTABlogger comment:Once again I thank The Trademark Reporter for granting leave to provide a link to this issue, which is Copyright © 2026 the International Trademark Association and reprinted with the permission of The Trademark Reporter®, 116 TMR No. 1 (January-February 2026).

Text Copyright John L. Welch 2026.

TTAB Affirms Three Section 2(d) Refusals of IDEAL-formative Marks for Real Estate Investment Services

The outcome wasn't ideal for this applicant, as the Board affirmed refusals to register three of its marks: IDEAL CAPITAL GROUP, in standard character and design form, and IDEAL PRIVATE CLIENT in standard character form, for "Real estate investment consultancy; Real estate investment services; Financial investment in the field of Real Estate" [GROUP and CLIENT disclaimed]. The Board found confusion likely with the registered mark IDEAL SALE for "Real estate investment services" [SALE disclaimed]. The "key" first and second DuPont factors, and the third factor, supported the refusal, and the other applicable DuPont factors were neutral. In re Ideal Capital Group Holdings, LLC, Serial Nos. 98352828 (February 24, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

The Board began by observing that the services identified in each of the applications and in the cited Registration are identical, and therefore the channels of trade and classes of consumers are also presumed to be identical. "[T]he fact that the services are identical reduces the degree of similarity between the marks necessary for confusion to be likely."

As for the marks, the Board unsurprisingly found the word IDEAL to be the dominant element in all of the marks. Moreover, "the word IDEAL has the same mildly laudatory meaning" in applicant's two standard character marks and in the cited mark, and "the marks as a whole, when considered in connection with the involved services, both conjure up the idea of 'exactly right' real estate investment services." As to applicant's logo mark, the stylization "does not make confusion less likely."

The cited IDEAL SALE mark is registered in standard characters and “could be used in any typeface, color, or size, including the same stylization actually used or intended to be used by [Applicant], or one that minimizes the differences or emphasizes the similarities between the marks.” Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., No. 91194148, 2015 WL 5316485, at *8 (TTAB 2015) (citing Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1353 (Fed. Cir. 2011).

The display of the words in Applicant’s logo mark emphasizes IDEAL over CAPITAL GROUP and "encourages consumers to verbalize Applicant’s mark simply as 'Ideal' by engaging in the ‘penchant of consumers to shorten marks.'" Again, the logo mark and the cited mark "both conjure up the idea of 'exactly right' real estate investment services."

Applicant argued that its customers - high-net-worth individuals and institutional investors - would exercise considerable caution, conduct due diligence, and have industry knowledge. However, the services recited in the applications are not so limited and encompass ordinary investors. "Ordinary consumers 'will exercise care when making financial decisions,' but 'are not immune from source confusion where similar marks are used in connection with [identical] services.'"

Applicant argued that the word "ideal" is a weak formative due to “the widespread coexistence of similar ‘IDEAL’ marks within the financial and real estate sectors," but it failed to provide supporting evidence. Its reliance on the lack of evidence of actual confusion was belied by its own assertion that its services and those of the registrant are geographically separated, leading the Board to observe that "there has not been 'a significant opportunity for actual confusion to have occurred.'"

We conclude that consumers with a general recollection of the cited IDEAL SALE mark for real estate investment services who separately encounter Applicant’s standard-character and stylized IDEAL CAPITAL GROUP marks and Applicant’s IDEAL PRIVATE CLIENT mark for the identical real estate investment services are likely to conclude mistakenly that the services have a common source.

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TTABlogger comment: WYHA?

Text Copyright John L. Welch 2026.

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

The Board decided three Section 2(d) appeals on Tuesday, February 23rd. Remembering that a TTAB Judge (now retired) once said that one can predict the outcome of a Section 2(d) appeal 95% of the time just by considering the marks and the goods/services, how do you think these came out? [Answer in first comment].

In re Tulster, LLC, Serial No. 98092120 (February 23, 2026) [not precedential] (Opinion by Judge Catherine Dugan O'Connor). [Section 2(d) refusal of the mark ECHO for “carriers adapted for firearm accessories in the nature of handgun magazines,” in view of the identical mark registered for "noise suppressors for guns; silencers for firearms."]

San Ignacio University Inc., Serial No. 98286205 (February 23, 2026) [not precedential] (Opinion by Judge Robert Lavache) [Section 2(d) refusal to register the mark shown below, for "Educating at university or colleges" [UNIVERSITY disclaimed] in view of the registered mark SIU for "Educational Services in the nature of courses and degree programs at the University level."]

In re Bushwood Productions, Inc., Serial No. 98492454 (February 23, 2026) [not precedential] (Opinion by Judge David K. Heasley). [Section 2(d) refusal of the mark BREAKFAST BALLER for “distilled spirits” in view of the registered mark BREAKFAST BALL BLOODY MARY for “alcoholic beverages, except beer" [BLOODY MARY disclaimed].]

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TTABlogger comment: How did you do? See any WYHA?s ? BTW: SIU = Southern Illinois University in Carbondale, Illinois. Two of my brothers matriculated there.

Text Copyright John L. Welch 2026.

GLOBAL HCM Merely Descriptive of Human Resource Management Software, Says TTAB

The Board upheld a refusal to register the proposed mark GLOBAL HCM for software and services relating to human resource management, deeming the mark to be merely descriptive under Section 2(e)(1). Applicant argued that "HCM" and "GLOBAL" have multiple meanings, but the Board rejected that argument, finding each word to be descriptive of at least one item in each class of applicant's identification of goods and services, and further finding that the combined term retains the descriptive significance of the individual words. In re Paycom Payroll, LLC, Serial No. 97876391 (February 19, 2026) [not precedential] (Opinion by Judge Mark Lebow).

Examining Attorney Alison Pollack relied on a dictionary definition of "global," on third-party registrations disclaiming "global," on an Acronym Finder entry for "HCM" (human capital management), and on Internet uses of the terms HCM and Global HCM describing HCM (or “human capital management”) as "an integrated business strategy and technology suite for acquiring, managing, compensating, and optimizing a global workforce." The Board found HCM to be a "widely used" acronym for "“human capital management."

Applicant argued that reliance on the Acronym Finder was "misplaced" because it provides 34 possible meanings of HCM, including "High Capacity Multiplexing,” “Horizontal Connection Module,” and “Handset Configuration Manager.” The Board was unmoved, pointing out once again that a term must be considered not in the abstract, but in the context of the goods and services at issue.

As to the word "global," applicant pointed to a CAFC decision holding that "globe" is not merely a geographical term. Again, the Board was unmoved, observing that "global" and "globe" are two different words with completely different meanings. 

Also, according to applicant, "global" does not immediately describe its goods and services because the word "could signify several meanings within Applicant’s Services, including that the services are offered worldwide, or a consumer’s placement of personnel around the world, or use of services from different global locations." The Board pointed out again that the term must be considered in context. Moreover, this argument is "a concession that GLOBAL has three descriptive meanings when applied to Applicant’s goods and services in the field of human capital management."

Considering the term GLOBAL HCM as a whole, the Board further found that the combination "does not create a unitary mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to those goods and services. Rather, each component retains its merely descriptive significance when used together in the field of human capital management."

And so, the Board affirmed the refusal.

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TTABlogger comment: WYHA?

Text Copyright John L. Welch 2026.

TTABlog Test: Are Coffee and Alcoholic Beverages Related Under Section 2(d)?

The USPTO refused to register the word-and-design mark shown below, for "coffee; coffee-based beverages; all of the foregoing goods not infused with alcohol, not used as an ingredient in alcoholic beverages, and not sold in connection with alcoholic beverages" [COFFEE disclaimed], finding confusion likely with the registered mark BEEKEEPER for “alcoholic beverages except beers." The Board unsurprisingly found that applicant's mark is dominated by the words BEE KEEPER, and so the marks were deemed confusingly similar. But what about the goods? How do you think this came out? In re Coffee Concepts LLC, Serial No. 98046428 (February 19, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

The Board observed that "[]he relatedness of goods or services may be established based on a variety of evidence, including (1) the language of the involved identifications of goods or services, which may show, on the face of the identifications, that the goods or services are literally or legally identical, or are otherwise intrinsically related, and (2) evidence of third-party uses or registrations, which may show that the identified goods or services are commonly offered by the same entity under the same mark, or are otherwise related."

The Board agreed with applicant that the goods are not inherently related based on the respective identifications of goods. However, third-party evidence told a different story. The record included 19 third-party registrations covering coffee and alcoholic beverages, as well as 9 probative third-party uses of marks for both coffee and wine or spirits. This evidence sufficed to show that "non-alcohol infused coffee and one or more of the goods encompassed within the 'alcoholic beverages except beer' identified in the ’401 Registration are related goods."

Applicant contended that the language “not infused with alcohol, not used as an ingredient in alcoholic beverages, and not sold in connection with alcoholic beverages” is a “limitation to the trade channels” for the goods that “further demonstrates that Applicant’s goods are not sold with or used in connection with the Cited Marks’ goods and renders the Examining Attorney’s internet evidence unpersuasive.” The Board disagreed.

The purported limitations to coffee “not used as an ingredient in alcoholic beverages” and “not sold in connection with alcoholic beverages” are meaningless because while Applicant itself does not sell alcoholic beverages, it cannot control how its coffee is used by sellers or consumers of alcoholic beverages, or whether its coffee is sold “in connection with alcoholic beverages” by retail customers. For example, Applicant’s coffee could be mixed by a consumer with Irish whiskey to create an “Irish coffee.”

Applicant conceded that the goods at issue can be purchased from the same store, and in fact argued that “[m]ost consumers buy their alcohol and coffee from supermarkets.” The Board found that "the relevant channels of trade include, at a minimum, supermarkets and the brick-and-mortar and online stores of distilleries and wineries, and that consumers of spirits and wine also consume coffee not infused with alcohol."

The Board found that the first, second, and third DuPont factors supported the refusal, and the fourth and sixth were neutral.

We conclude, on the basis of the record as a whole, that consumers who have a general recollection of the cited BEEKEEPER mark for “alcoholic beverages except beers” who separately encounter Applicant’s composite mark, dominated by the words BEE KEEPERS, for coffee not infused with alcohol are likely to believe mistakenly that the goods have a common source.

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TTABlogger comment: Is there any non-alcoholic beverage that is not, or could not be, combined with alcoholic beverages?

Text Copyright John L. Welch 2026.

TTAB Affirms USPTO Rejection of I LOVE YOU THIS MUCH Specimens for Book Publishing Services

The Board upheld a refusal to register the mark I LOVE YOU THIS MUCH (in standard characters) for “Publication of books; publication of personalized story books; book publishing,” concluding that applicant's specimens of use failed to show a direct association between the mark and the recited services. Applicant sells customized story books (with the purchaser furnishing the name to be inserted on the book cover and also editing the text) but that did not qualify as publishing services. In re Lostmy.name Ltd, Serial No. 98342035 (February 17, 2026) [not precedential] (Opinion by Judge Martha B. Allard).

Trademark Rule 2.56(b) requires that the specimen of use show a "direct association between the mark and the services." "Essentially, the mark must be shown 'in a manner that would be perceived by potential purchasers as identifying the applicant’s services and indicating their source.'"

The description accompanying the display of applicant's mark (see above) is found on applicant's "Wonderbly" website, and states: "Create a book for up to four children, to show how enormously you love them in every moment of every day. A beautiful personalized picturebook to read together as a family."

The Board agreed with the examining attorney that "this description suggests Applicant’s services are more akin to 'customized printings of a pre-published template book to the order and specification of an individual customer.'" "Indeed, the text of the specimen (shown in the red box for easy reference) clearly indicates that the customized book is '[p]rinted and shipped in 48 hours.'"

As the specimen makes clear, Applicant does not publish, or issue books for sale or circulation, because the specific book ordered is not available to anyone but the consumer who ordered it. The production of the book is not professional, but personal: the book is not produced to be sold to others but because it was sold to one consumer who designed its content within a template.

Applicant argued that the consumer becomes the author of the book, which applicant then publishes. The Board, however, didn't buy it: publishing means sending out to the public, not sending the customized book back to the author/consumer. "Simply put, ordering a customized storybook for oneself, which Applicant merely prints and ships to the consumer (as denoted in its ordering details and discussed above), does not constitute 'publishing' or 'publication” services."

Concluding that the specimen fails to show a direct association between the I LOVE YOU THIS MUCH mark and the recited services, the Board affirmed the refusal.

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TTABlogger comment: Maybe this applicant will try again, with a better recitation of services.

Text Copyright John L. Welch 2026.