TTABlog Test: Are Cat Food and Cat Food Supplements Related to Cat Litter Under Section 2(d)?

The USPTO refused to register the mark ZENCAT in the word-and-design form shown below, for cat food and nutritional supplements for cats, concluding that confusion is likely with the registered mark ZEN KITTY for cat litter [KITTY disclaimed]. The Board found that the similarity of the marks weighed "strongly" in favor of affirmance, but what about the goods? How do you think this came out? In re Phoenix Niesley-Lindgren Watt, Serial No. 98009242 (March 18, 2026) [not precedential] (Opinion by Judge Angela Lykos).

Applicant Watt got off on the wrong paw when she attempted to submit additional evidence with her appeal brief and her reply brief. The Board pointed out once again that "the record should be complete prior to the filing of an appeal” and “[e]vidence should not be filed with the Board after the filing of an appeal.” See Rule 2.142(d).

As to the relatedness of the goods, Examining Attorney Javier Jaramillo relied (as usual) on third-party registrations and uses: sixteen websites offering “nutritional supplements for cats” or “cat food” and "cat litter" under the same mark (three of the websites - for ONLY NATURAL PET, PURINA, and WERUVA - offered all three); and fifteen third-party registrations covering all three. That did the trick:

[T]he Examining Attorney’s third-party evidence demonstrates that consumers are accustomed to seeing a single mark associated with a single source that offers all the relevant goods.

Because neither identification of goods includes a restriction on channels of trade or classes of consumers, the Board presumed that the respective goods travel through all usual trade channels therefor and are offered and sold to the usual customers for those goods. The third-party use evidence showed that the channels of trade overlap.

Our findings are confirmed by the Examining Attorney’s evidence of third-party websites referenced above which demonstrate that the goods are sold together. See In re Ox Paperboard, LLC, No. 87847482, 2020 WL 4530517, at *7 (TTAB 2020). Moreover, in addition to this evidence of third-party websites that offer the relevant goods, we can also presume based on common knowledge that brick-and-mortar stores and veterinarian offices also offer the relevant goods, namely, Applicant’s cat supplements and food and Registrant’s cat litter.

Applicant Watt pointed out that she owns a registration (issued in May 2018) for the same ZENCAT word-and-design mark for use in "similar trade channels prior to the granting of Registrant’s mark," and she wondered "why the mark ZEN KITTY was allowed to be registered (in April 2018) in the first place," since "ZEN KITTY is the newcomer in the cat space, not ZenCat."

The Board observed that Watt appeared to be "attempting to rely on" Strategic Partners, Inc., No. 77903451, 2012 WL 1267930 (TTAB 2012). However, that case requires, inter alia, that the goods or services in the prior registration be "identical" to those in the later application. Here, as the Examining Attorney pointed out, the goods and services in Watt's prior registration are not the same as in the instant application. 

Finally, Watt argued that because her prior registration and the cited registration are allowed to co-exist, the Board should be consistent by allowing registration based on the instant application. The Board clawed back with its usual response:

The USPTO is required to apply the applicable statutory requirement to the unique facts and evidence of each case. The “Board has ‘recognize[d] that ‘consistency is highly desirable,’ [but] consistency in examination is not itself a substantive rule of trademark law, and a desire for consistency with the decisions of prior examining attorneys must yield to proper determinations under the Trademark Act and rules.” In re Korn Ferry, No. 90890949, 2024 WL 3219482, at *5 n.13 (TTAB 2024) (cleaned up).

And so, the Board affirmed the refusal.

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Text Copyright John L. Welch 2026.