TTABlog Test: Is PRO-GO for Bendable Lotion Containers Confusable with HANDY PRO-GO for Plastic Pails?

The USPTO refused to register the mark PRO-GO for "lotion containers sold empty for domestic use, namely bendable tubing for personal transport of such lotions," concluding that confusion is likely with the registered mark HANDY PRO-GO for "portable plastic containers, namely, pails." Applicant Sun Tube argued that the goods are different and the cited mark is dominated by the word HANDY. How do you think this came out? In re Sun Tube, LLC, Serial No. 97365902 (May 22, 2026) [not precedential] (Opinion by Judge Elizabeth K. Brock).

The Goods: Of course, even if the goods are not identical, they can be related under Section 2(d). The examining attorney submitted excerpts from nine websites, contending that each showed the involved goods being sold under a single mark. The Board reviewed each website and found that the first three did not show bendable tubing for personal transport of lotions, and another one was a foreign website that had no probative value. Only four were probative.

In sum, we find that four websites . . . show that the broader category of lotion containers may be sold under the same website house mark as plastic pails, but also sometimes not, and of these four websites that offer both types of goods, only the latter three include tube containers that might be considered “bendable” like Applicant’s. Given the potential differences in the lotion container products and Applicant’s own identification (and the lack of evidence that such differences are not consequential), as well as the limited number of entities offering both types of goods, we are not persuaded that the goods are sufficiently related such that confusion is likely.

The Marks:The Board found the marksk to be "similar in appearance and sound, to an extent, and the entirety of Applicant’s PRO-GO mark is identical to the PRO-GO component of Registrant’s mark." However, it was "not convinced that HANDY PRO-GO and PRO-GO have similar meanings and create similar commercial impressions.

When viewed in connection with the goods in the Cited Registration, i.e., plastic pails, we agree with Applicant’s assessment that this might suggest professional painters’ buckets, however, some of these meanings may change. Here, PRO-GO for travel lotion containers certainly leans on the “go” aspect of travel and portability, but the other meanings of PRO do not carryover as well; travel lotion containers for personal use do not so clearly suggest a professional use in the same manner as a plastic pail.

The Board concluded that the marks create different commercial impressions. "Overall, we do not find the find the marks sufficiently similar, which weighs against a conclusion that confusion is likely."

With the first and second DuPont factors weighing in applicant's favor, the Board reversed the refusal.

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TTABlogger comment: How did you do?

Text Copyright John L. Welch 2026.

No Evidence of Priority, So TTAB Dismisses NEAU Coffee Opposition

In this train wreck of an opposition, the Board dismissed Opposer's Section 2(d) claim based on alleged likelihood of confusion between applicant's mark NEAU COFFEE and opposer's common law marks NEAUX and NEAUX COFFEE COMPANY, both for coffee. Opposer failed to introduce any evidence to show its entitlement to bring the opposition, but applicant's evidence established that Opposer is in the business of selling coffee under the pleaded marks "and is more than a mere interloper." Opposer then tripped over the requirement to prove priority. Neaux Coffee LLC v. NEAU Brands, Inc., Opposition No. 91284466 (May 21, 2026) [not precedential] (Opinion by Judge Thomas. W. Wellington).

Under Section 7(c) of the Act, applicant may rely upon the filing date of its application (March 14, 2022) as a constructive use date for purposes of priority. "Put plainly, it was Opposer’s burden to prove by a preponderance of the evidence that it acquired common law rights in its pleaded marks based on use of those marks prior to March 14, 2022."

Although opposer introduced no evidence, applicant submitted Internet materials regarding opposer’s use of its marks. The Board, however, found that those materials, sufficient to prove opposer's standing, were insufficient to prove opposer's priority.

We cannot rely on any purported dates within those materials inasmuch as they are merely screenshots from websites and, without supporting testimony, any statements made in these materials or the websites are hearsay and not reliable for their truth. “Internet evidence is only admissible for what it shows on its face, and because it does not fall within an exception to the hearsay rule, will not be considered to prove the truth of any matter stated therein. * * * Indeed, Opposer, objected to Applicant’s evidence on this very basis, namely, that statements made within the materials constitute hearsay

Because opposer failed to submitted evidence that it owns “a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States,” the Board dismissed its Section 2(d) claim.

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TTABlogger comment: By submitting the Internet evidence, did applicant make an admission against interest regarding the contents thereof? Will the opposer seek review by way of civil action under Section 1071, during which it can submit (additional) evidence?

Text Copyright John L. Welch 2026.

TTAB Test: Are these two "NWA" Marks Confusable for Clothing?

The USPTO refused to register the mark shown below, for "Hats; Sweatshirts; T-shirts," on the ground of likelihood of confusion with the registered mark NWA for "Clothing, namely, shirts, t-shirts, sweatpants, sweatshirts, track suits, hooded sweatshirts, long sleeve shirts, tank tops, hats, beanies, baseball caps, bandanas." The goods overlap and the overlapping goods are presumed to travel in the same channels to the same classes of consumers. But what about the marks? How do you think this came out? In re Malibu Shirts, Inc., Serial No. 98696754 (May 21, 2026) [not precedential] (Opinion by Judge Robert Lavache).

The Examining Attorney argued that the involved marks share the same dominant element, NWA. Applicant Malibu Shirts maintained that NORTHWEST AIRLINES "dominates the overall visual impression of the mark" and "introduces a distinct visual structure and additional textual content that alters the viewer’s focus and perception of the mark as a whole." Moreover, the marks differ in pronunciation, connotation, and commercial impression. According to Malibu:

[T]he inclusion of the words ‘NORTHWEST AIRLINES’ . . .immediately directs consumers to interpret the mark as identifying or evoking an airline or aviation-related entity,” specifically “an airline operating in or associated with the northwestern region.” Thus, according to Applicant, “[c]onsumers encountering [Applicant’s] mark on apparel would likely view the goods as promotional or commemorative merchandise tied to an airline or aviation-themed brand, rather than as general fashion items.”

The Board agreed with Malibu that "there are significant differences between the respective marks in terms of sound, appearance, connotation, and overall commercial impression."

[T]o the extent that NWA does create a unique impression in the minds of consumers, that impression is likely to be that NWA is an abbreviation, or initialism, of NORTHWEST AIRLINES. Thus, we find that purchasers with a general rather than specific impression of Registrant’s mark are at least as likely to focus on and remember the words NORTHWEST AIRLINES and the wing-like design elements, as they are the initialism NWA alone, which merely abbreviates NORTHWEST AIRLINES.

The wing-like design elements in Malibu's mark reinforces the impression that the mark “identif[ies] or evok[es] an airline or aviation-related entity” and that the goods are thus “promotional or commemorative merchandise tied to an airline or aviation-themed brand.” There was no evidence that consumers would perceive the same connotation when viewing the cited mark.

The Examining Attorney pointed out that the cited mark, registered in standard characters, may be presented in any font style, size, or color, including the same font style, size, and color of the NWA portion of Applicant’s mark. The Board acknowledged that this general proposition is true, but "applying that proposition in this case is of little consequence."

Even if the cited NWA mark were displayed in the relatively nondescript block capital letter font style featured in Applicant’s mark, we are not convinced that it would lead to confusion, given that Applicant’s mark has other differentiating elements that create a distinct commercial impression and that are not encompassed by Registrant’s standard-character claim.

Finding that the first DuPont factor outweighs the second and third factors, the Board reversed the refusal.

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TTABlogger comment: Surprised?

Text Copyright John L. Welch 2026.

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

TTAB affirmances of Section 2(d) refusals continue to run at about 90% this year. Here are three recent decisions. How do you think they came out? [Answer in first comment].

In re Skylark Nails Supply, Serial No. 97612916 (May 6, 2026) [not precedential] (Opinion by Judge Wendy B. Cohen) [Section 2(d) refusal of the mark CRE8TION for "Acrylic nail powder and liquid preparations for shaping or sculpting nails; Adhesives for affixing false eyelashes; Artificial eyelashes; Nail hardeners; Nail tips" and for manicure and pedicure implements and eyelash curlers, in view of the registered mark CREATION (in standard characters) for perfumes, beauty products, tanning products, skin toners, lotions, and creams, and other class 3 products.]

In re Lucky Day Entertainment, Inc., Serial No. 98391360 (May 8, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande). [Section 2(d) refusal of LUCKY DAY for “Downloadable software in the nature of a mobile application for playing games of chance; Downloadable computer game programs" in view of the registered mark MY LUCKY DAY (in standard characters) for "Machines for playing games of chance."]

In re GSM Services, Inc., Serial Nos. 98318207 and 98318223 (May 20, 2026) [not precedential] (Opinion by Mark A. Thurmon). [Section 2(d) refusal of the mark GSM HEATING AND COOLING SINCE 1927, in standard form and in the word-and-design form shown below, for "Advisory services relating to the installation of heating and cooling apparatus; Air conditioning apparatus cleaning services; Air duct cleaning services; Home energy assessment services for the purpose of determining home improvements needed to improve energy use and efficiency; HVAC contractor services; HVAC duct cleaning services; Installation of heating and cooling apparatus; Installation of insulating materials; Installation of insulating materials in buildings and structures; Installation of building insulation; Repair or maintenance of power generators; Installation of HVAC systems; Maintenance and repair of electricity generators,” in view of the registered mark GSM ROOFING for "Roofing services."]

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

Text Copyright John L. Welch 2026.

TTAB Affirms Requirement to Disclaim DATA STREAMS for Database Management and Storage Services

The USPTO affirmed a refusal to register the mark CHAINLINK DATA STREAMS for “Database management services, namely, collecting secure data for use by decentralized computing networks” (International Class 35) and “Storing of secure electronic data for use by decentralized computing networks” (International Class 42), absent a disclaimer of the term DATA STREAMS. Applicant argued, inter alia, that the wording CHAINLINK DATA STREAMS, as a whole, is unitary, and so DATA STREAMS cannot be descriptive. The Board disagreed. In re SmartContract Chainlink Limited SEZC, Serial No. 98004679 (May 7, 2026) [not precedential] (Opinion by Judge Mark Lebow).

Examining Attorney David Tooley contended that “[t]he wording DATA STREAMS is a well-defined term in the computer industry referring to a manner of transmitting data across computer networks.” He submitted dictionary definitions and numerous examples showing the meaning of “data streaming” within the relevant industry. He concluded that the term DATA STREAMS is descriptive of applicant’s services because they all involved streaming of data among networked computers.

The Board agreed: "Here, DATA STREAMS is not a blended or coined unitary term. It’s a common, well-established phrase in the computer and data-processing industry that directly and immediately conveys the continuous transmission or flow of data – precisely the core feature of Applicant’s services."

Applicant maintained that DATA STREAMS has multiple meanings. The Board pointed out, however, that “[i]t is well settled that so long as any one of the meanings of a term is descriptive, the term may be considered to be merely descriptive.”

Applicant’s own promotional materials of record confirm that its CHAINLINK DATA STREAMS offering involves the reliable delivery and availability of data in distributed systems using active multi-site deployment models that ensure continuous operations.

Applicant also argued that its services involve “data at rest," while the Examining Attorney’s evidence relates primarily to real-time analytics, ingestion pipelines, and transmission, not to the identified storage and database management services. The Board was unmoved.

These services necessarily involve the collection of data from one or more sources and the provision of that data for use by a decentralized network of computers. In the context of computer networks – especially decentralized ones – collecting and making data available for network use inherently requires the transmission or flow of data across network nodes. One of the primary methods for transferring data among network nodes is via data streams, as the record abundantly demonstrates. Applicant’s own promotional materials of record confirm that its CHAINLINK DATA STREAMS offering involves the reliable delivery and availability of data in distributed systems using active multi-site deployment models that ensure continuous operations.

Applicant further contended that the combination of CHAINLINK (its alleged house mark) with DATA STREAMS creates an incongruity because “streams” “connotes ephemerality and flow, and Applicant’s identified services focus on durable, secure storage. The Board waved off that argument: "There is no incongruity in using a term that describes a key feature or function of the services simply because the services have multiple aspects. DATA STREAMS directly and immediately describes the transmission aspect inherent in collecting and making data available for use by decentralized computing networks." The mere addition of the house mark, CHAINLINK, does not create an incongruity.

Applicant’s own evidence confirms that its services employ multi-site deployment models to ensure continuous, reliable data availability across distributed origins. For the foregoing reasons, the term DATA STREAMS is merely descriptive of a feature of Applicant’s services.

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TTABlogger comment: WYHA?

Text Copyright John L. Welch 2026.

TTABlog Test: Is GRUPPO VAVA for Clothing Excluding Lingerie Confusable with VAVA for Lingerie?

The USPTO refused to register the mark GRUPPO VAVA for various clothing items, including hats, t-shirts, and sweatshirts (and excluding "lingerie, bras, underwear, or intimate apparel"), concluding that confusion is likely with the registered mark VAVA for "lingerie." Applicant ADG Vanguard conceded, in the face of third-party use and registration evidence, that the goods are related. It argued, however, that consumers will not perceive "VAVA" when applied to lingerie in the same way as when GRUPPO VAVA is applied to its clothing items. What do you think? Did ADG give the USPTO the slip? In re ADG Vanguard IP LLC, Serial No. 98516000 (May 18, 2026) [not precedential] (Opinion by Judge Thomas L. Casagrande).

The Board wasted little time in finding the marks confusable. Although ADG's mark begins with GRUPPO, and the first word of a mark can often make the biggest impact, here the impact of GRUPPO "is blunted because Applicant disclaimed GRUPPO—which is Italian for 'group'—because it has descriptive, rather than source-identifying, significance." Furthermore, the fact that applicant's mark incorporates the entire cited mark "can be significant in comparing the marks for likelihood-of-confusion purposes."

Applicant ADG argued that consumers will perceive the cited VAVA mark as comprising the first part of the known phrase “va-va-voom,” which connotes sexiness, an attribute naturally associated with lingerie. In contrast, consumers will not associate “va-va-voom” with ADG's mark because the word “GRUPPO” before the term “VAVA” will cause consumers to see “VAVA” not as part of “va-va-voom” but just a “vaguely Italian-sounding term.” Moreover, Applicant argued, its goods aren’t sexy.

The Board found these to be "interesting theories," but there was no evidence in support.

“Sexiness” is highly subjective, and we don’t think the “va-va-voom” connotation—if indeed that’s the connotation that “VAVA” without the “VOOM” imparts—can be so precisely limited only to lingerie. Although Applicant characterizes some of the clothing items in its identification of goods as “functional”—as opposed to “sexy”—items (e.g., business wear, running shoes, track suits), other types of clothing listed in the application (dresses, skirts, shirts, blouses, and shorts, for example) are made or worn in a wide variety of ways, including ways that are perceived as “sexy.”

Moreover, the Board noted, the dictionary definitions of “lingerie” in the record indicated that, "besides women’s intimate apparel, it also includes 'sleepwear,' which is not exclusively a 'sexy' category of goods, and—to use Applicant’s terms—includes 'functional' sleepwear."

In sum, the Board found the marks to be similar, the goods to be related, and the trade channels and classes of customers overlapping. No DuPont factors indicated that confusion is unlikely. "With the only relevant factors all indicating that confusion is likely and nothing to counterbalance them, there’s no real balancing to be done. On the record here, we conclude that confusion is likely."

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TTABlogger comment: The term VA-VA-VOOM, in my experience, is usually accompanied by a pair of eyeballs bulging out of a cartoon wolf's head.

Text Copyright John L. Welch 2026.

TTABlog Test: Is HORSETHIEF CANYON VINEYARDS for Wine Confusable with HORSE THIEF HOLLOW for Beer?

The USPTO refused to register (on the Supplemental Register) the mark HORSETHIEF CANYON VINEYARDS for "wine" [VINEYARDS disclaimed], concluding that confusion is likely with the registered mark HORSE THIEF HOLLOW for "beer." As we know, different alcoholic beverages are usually found to be related under Section 2(d) based on third-party registration and use evidence, but what about these marks? Did Applicant stand a chance? In re HC Vineyards LLC, Serial No. 98579854 (May 4, 2026) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

“There is no per se rule that holds that all alcoholic beverages are related.” Examining Attorney Lisa McCrary provided evidence of 16 entities offering both wine and beer under the same mark, 20 third-party registrations covering both goods, and an article in Wine Enthusiast titled “‘Give ‘Em What They Want’: These Craft Breweries Make Wine Now, Too.” [Why isn't this article hearsay? - ed.]

Applicant HC Vineyards, appearing pro se, argued that "these few examples are not representative of the industry standard. It is unusual for a winery to brew its own beer, just as it is even more rare for a brewery or restaurant/bar to produce and brand its own wine." The Board was unmoved, noting that applicant provided no evidence for its assertions, and further that the Office's evidence was sufficient to support a finding of relatedness under the second DuPont factor.

The same evidence established that the channels of trade "overlap to at least some degree." The third DuPont factor therefore supported the refusal.

Turning to the marks, the Board found that, "visually and phonetically, HORSETHIEF CANYON VINEYARDS and HORSE THIEF HOLLOW are similar due to the nearly identical first word(s) HORSETHIEF and HORSE THIEF." Moreover, the overall marks "engender similar impressions because they both convey the idea of a depressed area of land where thieves hide their stolen horses." The Board concluded that the first DuPont factor "somewhat heavily" supported the refusal.

HC Vineyards unsuccessfully argued that the involved consumers are sophisticated and exercise care in purchasing, but it provided no evidence thereof. The Board noted that neither identification of goods contains any limitations on quality or price of the goods, and they therefore must be presumed to include goods of all quality levels and price points. Beer is offered at moderate prices and wine may be more expensive but still includes moderately priced products that appeal to average consumers. The Board's decision must “be based on the least sophisticated potential purchasers.” "And even if some consumers of the goods are more sophisticated or discerning than others, even “careful or sophisticated consumers are not immune from source confusion.” The Board deemed the fourth DuPont factor to be neutral.

The Board also found the eighth, tenth, twelfth and thirteenth DuPont factors to be neutral, and no factor weighed in applicant's favor.

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TTABlogger comment: Unless this was your first rodeo, you surely got this right. A typical mechanical application of the Board's stacked-deck Section 2(d) analysis.

Text Copyright John L. Welch 2026.

TTAB Affirms Genericness Refusal of THE SKIN COACH for . . . . Guess What?

The Board upheld a genericness refusal of the proposed mark THE SKIN COACH for, inter alia, "Professional coaching services in the field of health and wellness," "Providing on-line training in the form of courses, workshops, seminars, and private coaching in the field of health and wellness," and "Holistic health services," rejecting the application for a Supplemental Registration under Sections 23(c) and 45 of the Trademark Act. Applicant acknowledged the considerable third-party evidence of use of "skin coach" "in connection with skincare, wellness, or esthetics," but contended that the term is at most descriptive, not generic. In re The Skin Coach LLC, Serial No. 98351505 (May 11, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin).

The Board determines the issue of genericness as a question of fact, based on the preponderance of evidence. ["Clear evidence" is not required]. The Office bears the ultimate burden of proof. "Determining whether a mark is generic . . . involves a two-step inquiry: First, what is the genus of goods or services at issue? Second, is the term sought to be registered . . . understood by the relevant public primarily to refer to that genus of goods or services?"

The Board observed that "A term is generic if it refers to the class or category of goods or services on which it is used," citing Marvin Ginn and Dial-A-Mattress, or to "part of the claimed genus of goods or services, even if the public does not understand the term to refer to the broad genus," citing Royal Crown and Cordua. [Emphasis by the Board].

The Board found the genus of the respective two classes of services to be “Professional coaching services in the field of health and wellness” and “Providing on-line training in the form of courses, workshops, seminars, and private coaching in the field of health and wellness” in Class 41, and “Holistic health services” in Class 44. Applicant conceded that “‘skin coach’ may describe a niche focus within Applicant’s broader wellness services.” The question for the Board was whether the evidence showed "that the primary significance of THE SKIN COACH is to refer to that sub-genus of the involved services."

Turning to the public's understanding of the term THE SKIN COACH, Examining Attorney Janice McMorrow submitted dictionary definitions of "skin" and "coach," applicant's own specimen website pages (using “skin coach” generically in lowercase letters to identify the provider of the services, applicant’s principal “Malia,” as “your new skin coach & BFF”), and numerous third-party websites. After a detailed analysis of those websites, the Board concluded:

On balance, the third-party website evidence shows that the primary significance of the phrase “skin coach” is to refer to the sub-genuses of “professional coaching services in the field of health and wellness,” “on-line training in the form of courses, workshops, seminars, and private coaching in the field of health and wellness,” and “holistic health services” regarding skin care.

A number of LEXIS/NEXIS articles use "skin coach" and variants "generically to identified multiple instructors who provide services falling within" the sub-genuses listed above.

The Board found, from this evidence, that "the primary significance of THE SKIN COACH to the relevant consuming public is to refer to the sub-genuses of 'Professional coaching services in the field of health and wellness' and 'Providing on-line training in the form of courses, workshops, seminars, and private coaching in the field of health and wellness' in Class 41, and 'Holistic health services' in Class 44, regarding skin care."

And so, the Board affirmed the refusal.

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TTABlogger comment: I'm a bit confused. Is THE SKIN COACH a sub-genus of the sub-genuses? Anyway, the term seems merely descriptive to me. If you looked for a phone book listing of health or fitness providers, would you find a sub-heading, "skin coaches?" But then, a mere descriptiveness rejection that would still allow a Supplemental Registration. The Board didn't want that to happen.

Text Copyright John L. Welch 2026.

TTABlog Test: Which of These Three Section 2(d) Refusals Was/Were Reversed?

TTAB affirmances of Section 2(d) refusals continue to run at about 90% this year. Here are three recent decisions. At least one of them resulted in a reversal. What say you? [Answer in first comment].

In re Grandvision France, Serial No. 79389236 (May 12, 2026) [not precedential] (Opinion by Judge Christopher C. Larkin). [Section 2(d) refusal of the mark shown below left, for "“Spectacles; spectacle frames; eyeglasses; sunglasses; masks for sports in the nature of sports goggles, with the exception of fencing masks; spectacle lenses; optical lenses; lenses for sunglasses; correcting lenses being optical lenses; contact lenses; eyeglass lenses; ophthalmic lenses; corrective lenses being optical lenses; spectacle cases; eye glass cases; carrying cases for contact lenses; headbands, cords, chains and ties for holding spectacles, namely, eye glass cords and eye glass chains; binoculars; optic magnifiers being magnifying glasses” in view of the registered mark below right, for "Beauty masks; Cleaning preparations; Cosmetic preparations for eyelashes; Cosmetic products in the form of aerosols for skin care; Cosmetics; Cotton sticks for cosmetic purposes; Cotton wool for cosmetic purposes; Facial cleansing milk; Lotions for cosmetic purposes; Make up removing preparations.”]

In re Destiladora del Valle de Tequila SA de CV, Serial No. 98588895 (May 12, 2026) [not precedential] (Opinion by Judge Robert Lavache) [Section 2(d) refusal of AI for "Distilled agave liquor" in view of the identical mark registered for "Wine."]

In re TDI Novus Inc., Serial No. 98593408 (May 12, 2026) [not precedential] (Opinion by Judge Thomas W. Wellington). [Section 2(d) refusal of the mark shown below, for "A voice communication system for an autonomous vehicle in maritime comprised of an apparatus to record, transcribe, translate, and parse voice communications over the radio frequency spectrum and autonomously providing a system generated voice transmission response that is appropriate and in context of the transmission and any earlier transmissions," in view of the registered mark MERMADE for, inter alia, "apparatus for recording, transmission or reproduction of sound and images."].

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

Text Copyright John L. Welch 2026.

TTAB Affirms Refusals to Register Restaurant Interior Designs: Distinctiveness Neither Inherent Nor Acquired

The Board affirmed refusals to register the two restaurant interior designs shown below, for "restaurant services," finding that the proposed marks lacked inherent distinctiveness and were not shown to have acquired distinctiveness. In re ETLC Trademarks, LLC, Serial Nos. 98166506 and 98120339 (May 5, 2026) [not precedential] (Opinion by Judge Jessica B. Bradley).

Applicant's trade dress comprised the interior design of a restaurant consisting of the combination of the following elements:  

• One or more Chicago style brick walls; 
• A bar counter with either a Chicago brick facade or an abstract wood accent facade;  
• A finishing counter connected to the bar; 
• A prep table; and 
• A rotisserie grill that includes a wheel on the upper left side that adjusts the grills with chains to create movement of the metal structure that sits on top of the grill.

The Board applied the CAFC's Seabrook factors and found that the proposed marks satisfy both the second and third Seabrook factors, and accordingly are not inherently distinctive. Chippendales, 622 F.3d at 1351 (Where “a mark satisfies any of the first three [Seabrook] tests, it is not inherently distinctive.”).

The Proposed Marks would be perceived by patrons of Applicant’s restaurant services simply as part of the overall decor or ambiance of Applicant’s restaurants. Given the common use of the claimed elements and the common arrangement of the elements in other restaurants, customers are not likely to view this decor or ambience as identifying and distinguishing the source of Applicant’s restaurant services.

Turning to the issue of acquired distinctiveness, the Board considered the Converse factors and found that Applicant's evidence fell far short.

And so, the Board affirmed the refusals.

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TTABlogger comment: Ran into a brick wall?

Text Copyright John L. Welch 2026.