TTABlog Test: Are these UPSTREAM-Formative Marks Confusable for Insurance Agencies?

The USPTO refused to register the marks UPSTREAM LIFE in standard characters and in the logo form shown first below [LIFE and EST 1912 disclaimed], concluding that confusion is likely with the registered mark shown second below [INVESTMENT PARTNERS disclaimed], both marks for, inter alia, "insurance agencies." Applicant was swimming upstream from the git-go, since the services overlap and those overlapping services are presumed to be offered in the same trade channels to the same classes of consumers. What about the marks? Will applicant sink or swim? In re Upstream Life Holdings, Inc., Serial Nos. 98778253 and 98778258 (September 15, 2026) [not precedential] (Opinion by Judge Jennifer L. Elgin).

The Board noted that "when evaluating a mark that consists of words and a design, 'the word portion is normally accorded greater weight because it is likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the goods.'" Applicant did not dispute that UPSTEAM is the dominant term in each mark.

Since applicant's mark UPSTREAM is in standard character form, the Board must consider the possibility that the word UPSTEAM could be displayed more prominently than the word LIFE. In fact, that's how applicant uses the mark, as shown in the composite drawing above. As to sound, the Board observed that consumers have a tendency to shorten marks, and are likely to emphasize the word UPSTREAM, and not LIFE or INVESTMENT PARTNERS.

There was no evidence that UPSTREAM has any conceptual significance with respect to insurance agency services or insurance services generally. "Thus, [t]o the extent [UPSTREAM] has a meaning in connection with [insurance agency services], it would have the same connotation in Applicant’s mark as in Registrant’s mark.'"

The Board concluded that these marks are similar in appearance, sound, meaning, and commercial impression, and so the first DuPont factor supported the conclusion that confusion is likely.

As to applicant's composite mark, applicant contended that "the overall appearance of the respective marks are sufficiently distinct such that consumer confusion between the marks is highly unlikely." The Board disagreed.

In the context of Applicant’s composite mark, the chevron design just as easily merely reinforces the meaning of, and directs attention to, the term UPSTREAM – as does the triangle river design in the cited mark. The disclaimed phrase EST 1912, to the extent consumers notice it due to its diminutive size and placement, merely describes when Applicant or its predecessor began operating. Likewise, the disclaimed term LIFE is almost imperceptible.

Again, the Board found the marks to be similar in appearance, sound, meaning, and commercial impression, and so, the first DuPont factor supported this refusal.

There was no evidence "that ordinary consumers exercise any greater than normal care in selecting an insurance agency, as opposed to an insurance underwriter or policy." "Board precedent requires the decision to be based on the least sophisticated potential purchasers.” Stone Lion, 746 F.3d at 1325."

Conclusion: the Board affirmed the refusal

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TTABlogger comment: Applicant was sunk. Are both appeals WYHA?s?

Text Copyright John L. Welch 2026.