Changes in Mark and Services Fail to Avoid Claim Preclusion in PET-AGREE GROOMING SUPPLIES Opposition

The Board sustained this opposition to registration of the mark PET-AGREE GROOMING SUPPLIES for certain wholesale supply store services for pet grooming supplies, finding that claim preclusion (a/k/a res judicata) applied, based on an earlier opposition between the same parties. Applicant PAGS had filed a second application for a mark that slightly differed from its first, successfully opposed mark, for narrowed services, but those changes were insufficient to avoid the prior judgment. Mars, Incorporated v. PAGS Inc., Opposition No. 91263504 (September 16, 2026) [not precedential] (Opinion by Judge Angela Lykos).

In 2019, the Board sustained Opposer Mars' opposition to registration of the mark PET AGREE for “wholesale and retail supply store services featuring pet grooming supplies; online wholesale and retail services featuring pet grooming supplies," concluding that confusion is likely with the registered mark PEDIGREE for pet food. [pdf here]. PAGS appealed to the CAFC but then dropped its appeal and instead filed this new application.

In the new application, the mark was changed to PET-AGREE GROOMING SUPPLIES and the services were narrowed to the following: "wholesale supply store services for pet grooming supplies in the business to business market directed to pet professionals and commercial pet groomers, expressly excluding pet food, pet treats and products fed to pets and animals and excluding bowls, cups and containers for pet food, pet treats and products fed to pets and animals." Mars opposed the new application on the same grounds (likelihood of confusion and dilution) as in the prior opposition but added claim of claim preclusion (res judicata) and issue preclusion (collateral estoppel) based on its prior successful opposition.

The Board observed that "[a] second suit is barred by res judicata or claim preclusion if (1) the parties (or their privies) are identical;(2) there has been an earlier final judgment on the merits of a claim; and (3) the second claim is based on the same set of transactional facts as the claim in the first proceeding." PAGS conceded that the first two prongs were met.

Thus, Opposer’s res judicata claim hinges on whether the current Section 2(d) claim is based on the same set of transactional facts as in the Prior Opposition; in other words, whether Opposer’s claims comprise the same “core [or nucleus] of operative facts” or are “based on the same, or nearly the same, factual allegations” as those asserted in the Prior Opposition.

In order to make that determination, the Board considers (1) whether the marks involved in the prior proceeding are the same marks, in terms of commercial impression, as the marks involved in this proceeding; and (2) whether the evidence of likelihood of confusion between the marks in the prior proceeding would be identical to the evidence of likelihood of confusion in this proceeding. The Board answered both of those inquires in the affirmative.

As to the marks, the Board found that PAGS' current mark, PET-AGREE GROOMING SUPPLIES, creates the same, continuing commercial impression as its earlier mark PET-AGREE, noting that the only source-indicating element in its current mark is PET-AGREE since the newly added wording GROOMING SUPPLIES is generic.

As to the services, the Board found that PAGS' current identification of services does not present a new set of transactional facts for res judicata purposes. "The services identified in the Prior Opposition and those in the present application are in part legally identical. This is because the amended identification merely narrows, rather than changes, the prior services by removing the retail services and by adding language directed to the business-to-business market, pet professionals and commercial pet groomers."

Furthermore, "the additional language expressly excluding Opposer’s goods of 'pet food, pet treats and products fed to pets and animals and excluding bowls, cups and containers for pet food, pet treats and products fed to pets and animals,' does nothing to change the core nucleus of facts." And although there are not limitations on channels of trade and classes of purchasers, "none of Opposer’s registrations have now been restricted. We therefore continue to apply the well-established principle that Opposer’s goods presumptively move in all normal trade channels and to consumers that purchase such goods."

In addition, while PAGS' limited its purchasers to "presumably those who are more knowledgeable and sophisticated, Mars' registrations remain unrestricted as to purchasers and price. "While some 'pet professionals and commercial pet groomers' might be highly sophisticated, knowledgeable and discriminating about purchases, others may not. Where the purchasers consist of both professionals and the public, the standard of care that applies is that of “the least sophisticated potential purchasers."

Finally, we emphasize the point made earlier that the substantial duplication of the testimonial and documentary evidence in the two proceedings further confirms that Opposer’s likelihood of confusion claims rest on the same operative facts.

And so, the Board sustained the opposition on the ground of claim preclusion.

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TTABlogger comment: It's not that easy to end-run a prior adverse judgment after a full trial on the merits.

Text Copyright John L. Welch 2026.