https://distinctive-mark.com/Commentary on TTAB decisions, USPTO practice, and the business of marks.enWed, 21 Oct 2026 00:00:00 +0000https://distinctive-mark.com/commentary/what-the-usptos-ai-does-in-trademark-examination/https://distinctive-mark.com/commentary/what-the-usptos-ai-does-in-trademark-examination/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.Tue, 20 Oct 2026 00:00:00 +0000ExaminationAIData§2(d)https://distinctive-mark.com/commentary/what-the-research-says-about-trademark-examination/https://distinctive-mark.com/commentary/what-the-research-says-about-trademark-examination/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.Tue, 20 Oct 2026 00:00:00 +0000DataExamination§2(d)Fraudhttps://distinctive-mark.com/commentary/the-vanishing-ttab-precedent/https://distinctive-mark.com/commentary/the-vanishing-ttab-precedent/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.Tue, 20 Oct 2026 00:00:00 +0000TTABData§2(d)Failure to functionhttps://distinctive-mark.com/commentary/foreign-words-in-us-marks-kahwa-and-foreign-equivalents/https://distinctive-mark.com/commentary/foreign-words-in-us-marks-kahwa-and-foreign-equivalents/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.Tue, 20 Oct 2026 00:00:00 +0000Genericness§2(e)(1)§2(d)Cross-borderhttps://distinctive-mark.com/commentary/failure-to-function-after-brunetti/https://distinctive-mark.com/commentary/failure-to-function-after-brunetti/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.Tue, 20 Oct 2026 00:00:00 +0000Failure to functionFederal Circuithttps://distinctive-mark.com/rulings/in-re-international-first-committee-association/https://distinctive-mark.com/rulings/in-re-international-first-committee-association/A phrase used only as the heading of a values statement reads as its title, not as a service mark; DECLARATION OF INTERDEPENDENCE refused.Mon, 28 Sep 2026 00:00:00 +0000Failure to functionSpecimensInternet evidenceAI evidenceEx parte appealshttps://distinctive-mark.com/rulings/in-re-hansen-honey-farm/https://distinctive-mark.com/rulings/in-re-hansen-honey-farm/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.Tue, 22 Sep 2026 00:00:00 +0000§2(e)(4)SurnamesEx parte appealsEvidence on appealhttps://distinctive-mark.com/rulings/in-re-agbio/https://distinctive-mark.com/rulings/in-re-agbio/A term that names a category of products can describe broadly identified services built around them; BIOINPUT refused for agricultural services.Tue, 15 Sep 2026 00:00:00 +0000§2(e)(1)Ex parte appealsForeign evidencehttps://distinctive-mark.com/rulings/olsman-mackenzie-peacock-wallace-v-thomas/https://distinctive-mark.com/rulings/olsman-mackenzie-peacock-wallace-v-thomas/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…Thu, 10 Sep 2026 00:00:00 +0000OwnershipEmployer and employeeOppositionsUse in commercehttps://distinctive-mark.com/rulings/cielo-e-terra-v-hoteles-y-vinedos-del-valle-de-guadalupe/https://distinctive-mark.com/rulings/cielo-e-terra-v-hoteles-y-vinedos-del-valle-de-guadalupe/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…Thu, 03 Sep 2026 00:00:00 +0000§2(d)DuPont factor 6Foreign equivalentsThird-party marksOppositionsCross-borderWinehttps://distinctive-mark.com/rulings/in-re-american-aging-association/https://distinctive-mark.com/rulings/in-re-american-aging-association/An identification limited to online journal publication can cover publishing one's own journal online; GEROSCIENCE specimen refusal reversed.Wed, 26 Aug 2026 00:00:00 +0000SpecimensIdentification of goods and servicesID ManualEx parte appealshttps://distinctive-mark.com/rulings/in-re-caretaker-medical/https://distinctive-mark.com/rulings/in-re-caretaker-medical/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.Fri, 07 Aug 2026 00:00:00 +0000GenericnessSupplemental RegisterMedical devicesEx parte appealshttps://distinctive-mark.com/rulings/novel-brands-usa-v-zerodensity-yazilim/https://distinctive-mark.com/rulings/novel-brands-usa-v-zerodensity-yazilim/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.Mon, 27 Jul 2026 00:00:00 +0000§2(e)(1)Madrid ProtocolBona fide intentOppositionsCross-borderhttps://distinctive-mark.com/rulings/in-re-ralphs-famous-italian-ices-franchise/https://distinctive-mark.com/rulings/in-re-ralphs-famous-italian-ices-franchise/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…Thu, 25 Jun 2026 00:00:00 +0000Failure to functionTrade dressOrnamental refusalsSection 2(f)SpecimensEx parte appealshttps://distinctive-mark.com/rulings/in-re-wemby-corporation/https://distinctive-mark.com/rulings/in-re-wemby-corporation/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…Wed, 24 Jun 2026 00:00:00 +0000TTABSection 2(a)Section 2(c)false suggestion of a connectionconsent of living individualathletic apparelcelebrity marksnicknameshttps://distinctive-mark.com/rulings/in-re-textnow/https://distinctive-mark.com/rulings/in-re-textnow/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…Tue, 23 Jun 2026 00:00:00 +0000§2(d)Section 44(e)Section 8 declarationsIdentification of goods and servicesEx parte appealsCross-borderhttps://distinctive-mark.com/rulings/super-kings-international-v-shenzhen-bmx-network-technology/https://distinctive-mark.com/rulings/super-kings-international-v-shenzhen-bmx-network-technology/Ignoring requests for admission can concede nonuse before the filing date and void a use-based registration; two SUPERKING registrations cancelled.Fri, 05 Jun 2026 00:00:00 +0000Fraud & nonuseCancellationsSpecimensDiscoveryCross-borderhttps://distinctive-mark.com/rulings/in-re-everwise-credit-union/https://distinctive-mark.com/rulings/in-re-everwise-credit-union/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…Wed, 29 Apr 2026 00:00:00 +0000Fraud & nonuseReexaminationStatements of useSpecimensBona fide useWayback Machine