Distinctive Mark

Distinctive Markhttps://distinctive-mark.com/2026-10-21T00:00:00ZDistinctive MarkCommentary on TTAB decisions, USPTO practice, and the business of marks.What the USPTO's AI does in trademark examination, and what it doesn'thttps://distinctive-mark.com/commentary/what-the-usptos-ai-does-in-trademark-examination/2026-10-21T00:00:00Z2026-10-20T00:00:00Z

In 2026 the Office automated classification, design coding and parts of search. It did not automate the decision to register. Here is what the record shows, what the data on examiner consistency say, and what figures would settle the open questions.

What the empirical research says about trademark examination and registration outcomeshttps://distinctive-mark.com/commentary/what-the-research-says-about-trademark-examination/2026-10-21T00:00:00Z2026-10-20T00:00:00Z

Who examines an application, how crowded the register is, and how courts weigh a mark's strength all affect outcomes in ways the doctrine does not describe. A reading of the main studies and the USPTO's own data, with their limits, as the Supreme Court takes up mark strength.

The vanishing TTAB precedent: what fewer precedential decisions mean for practicehttps://distinctive-mark.com/commentary/the-vanishing-ttab-precedent/2026-10-21T00:00:00Z2026-10-20T00:00:00Z

For a decade the Board designated 40 to 55 precedents a year. In 2025 it designated 12. We counted the decisions ourselves, and we set out what the drop changes for examination, appeals and inter partes work.

Foreign words in US marks: KAHWA and the doctrine of foreign equivalentshttps://distinctive-mark.com/commentary/foreign-words-in-us-marks-kahwa-and-foreign-equivalents/2026-10-21T00:00:00Z2026-10-20T00:00:00Z

The USPTO translates foreign words before it tests them for genericness, descriptiveness and confusion. Three recent decisions show when translation happens, who must show it should not, and what evidence decides the result.

Failure to function after Brunettihttps://distinctive-mark.com/commentary/failure-to-function-after-brunetti/2026-10-21T00:00:00Z2026-10-20T00:00:00Z

The Federal Circuit did not abolish the refusal for widely used words and messages. It required the Board to say what standard it is applying. A field guide to what changed, what did not, and how to build the record now.

A phrase used only as a document's heading is not a service markhttps://distinctive-mark.com/rulings/in-re-international-first-committee-association/2026-10-21T00:00:00Z2026-09-28T00:00:00Z

A phrase used only as the heading of a values statement reads as its title, not as a service mark; DECLARATION OF INTERDEPENDENCE refused.

A surname plus a word for the business is still just a surnamehttps://distinctive-mark.com/rulings/in-re-hansen-honey-farm/2026-10-21T00:00:00Z2026-09-22T00:00:00Z

A common surname followed by a phrase that names the kind of business behind the goods is still primarily merely a surname; here, HANSEN HONEY FARM for honey.

A word for a product category can describe the services built around ithttps://distinctive-mark.com/rulings/in-re-agbio/2026-10-21T00:00:00Z2026-09-15T00:00:00Z

A term that names a category of products can describe broadly identified services built around them; BIOINPUT refused for agricultural services.

A mark an employee first uses on the job belongs to the employerhttps://distinctive-mark.com/rulings/olsman-mackenzie-peacock-wallace-v-thomas/2026-10-21T00:00:00Z2026-09-10T00:00:00Z

Ownership follows first use, and use made as an employee is presumed to be the employer's. A brand idea brought to a new job, a domain name and friendly emails about "your logo" will not overcome that presumption. Anyone who wants to keep a mark through a change of employer should use it in their o…

Third-party marks using a translation do not show a foreign-word mark is weakhttps://distinctive-mark.com/rulings/cielo-e-terra-v-hoteles-y-vinedos-del-valle-de-guadalupe/2026-10-21T00:00:00Z2026-09-03T00:00:00Z

Applicants who argue that a cited mark is weak must show third parties using the shared term itself, not its English meaning. And a handful of web captures will not prove a crowded field in a large national market, because the Board ties the number of uses needed to the number of sellers in that ma…

An online-publication identification can cover an owner's own journalhttps://distinctive-mark.com/rulings/in-re-american-aging-association/2026-10-21T00:00:00Z2026-08-26T00:00:00Z

An identification limited to online journal publication can cover publishing one's own journal online; GEROSCIENCE specimen refusal reversed.

Naming a product by its defining technique can make the name generichttps://distinctive-mark.com/rulings/in-re-caretaker-medical/2026-10-21T00:00:00Z2026-08-07T00:00:00Z

The name of a technique that defines a type of product can be generic for the product, even with a single seller; PULSE DECOMPOSITION ANALYSIS refused for patient monitors.

Conceding no intent for listed services in a trial brief forfeits themhttps://distinctive-mark.com/rulings/novel-brands-usa-v-zerodensity-yazilim/2026-10-21T00:00:00Z2026-07-27T00:00:00Z

Conceding in a trial brief that there is no intent for some listed services forfeits them, and deleting them then comes too late; REALITY ENGINE opposition sustained.

Patterns others in the field already use are ornament, judged class by classhttps://distinctive-mark.com/rulings/in-re-ralphs-famous-italian-ices-franchise/2026-10-21T00:00:00Z2026-06-25T00:00:00Z

The Board measures a pattern's distinctiveness separately for every class in an application, and a handful of third-party users can be enough to defeat a basic design. Once many others use the same ornament, sales, advertising spend and years of use do little, and calling those users infringers doe…

A famous athlete’s nickname can support both Section 2(a) and 2(c) refusalshttps://distinctive-mark.com/rulings/in-re-wemby-corporation/2026-10-21T00:00:00Z2026-06-24T00:00:00Z

In a precedential decision, the TTAB affirmed refusals of WEMBY for athletic apparel because the record showed WEMBY was Victor Wembanyama’s nickname, pointed uniquely and unmistakably to him, and would make buyers presume a connection. The same record also made written consent necessary under Sect…

A lapsed registration's years beside a cited mark do not help the refilinghttps://distinctive-mark.com/rulings/in-re-textnow/2026-10-21T00:00:00Z2026-06-23T00:00:00Z

The Strategic Partners exception lets a long-registered applicant overcome a §2(d) citation, but only while that registration is alive and beyond a priority attack. Once a registration lapses for want of a Section 8 declaration, a new application is examined against today's register, and for foreig…

Unanswered admission requests can void a use-based registrationhttps://distinctive-mark.com/rulings/super-kings-international-v-shenzhen-bmx-network-technology/2026-10-21T00:00:00Z2026-06-05T00:00:00Z

Ignoring requests for admission can concede nonuse before the filing date and void a use-based registration; two SUPERKING registrations cancelled.

Showing a new brand before it launches does not count as use in commercehttps://distinctive-mark.com/rulings/in-re-everwise-credit-union/2026-10-21T00:00:00Z2026-04-29T00:00:00Z

Reexamination lets anyone challenge a registration on the ground that the mark was not really in use when the owner said it was. This precedent shows that a specimen can look acceptable and still fail, because the Board will read it against the owner's later announcements and the absence of any oth…