Galaxy Gaming, Inc.

This Opinion is Not a
Precedent of the TTAB
Mailed: May 26, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Galaxy Gaming, Inc.
_____
Serial Nos. 97091740 and 970918271
_____
Daniel H. Bliss of Howard & Howard Attorneys PLLC,
for Galaxy Gaming, Inc.
Dominic R. Pino III, Trademark Examining Attorney, Law Office 109,
Mark Pilaro, Managing Attorney.
_____
Before Wellington, Lykos, and Casagrande,
Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
On October 25, 2021, Galaxy Gaming, Inc. (“Applicant”) filed two applications to
register on the Principal Register the standard character mark RISING PHOENIX
(“Word Mark”) and the RISING PHOENIX BACCARAT word and design mark
(“Composite Mark”) displayed below:
1 We sua sponte consolidate these appeals because they involve common issues of law and
fact. See, e.g., In re S. Malhotra & Co. AG, Nos. 79194076 and 79194077, 2018 TTAB LEXIS
344, at *3 (appeals involving common questions of law and fact sua sponte consolidated and
decided in a single opinion for judicial economy); see also TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE (“TBMP”) § 1214 (2025). We have considered all arguments
and evidence presented in both appeals.

Serial Nos. 97091740 and 97091827
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Both applications include the same identifications of goods which were ultimately
amended to:
Computer hardware and computer display screen and
monitor for game results in International Class 9; and
Gaming tables for gambling; wagering games, namely,
gaming tables with gaming table layouts; gaming tables for
playing wagering games with gaming table layouts for use
on a gaming table in a casino; hardware and display screen
or monitor for game results in the nature of gaming
devices; all of the foregoing excluding gaming machines for
gambling in International Class 28.2
2 Applications Serial Nos. 97091740 and 97091827, for the standard character mark and
composite mark respectively, were both filed under Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce. The description of
the Composite Mark is as follows: “The mark consists of a bird’s head with a circular flame
with the wording ‘RISING PHOENIX’ above the wording ‘BACCARAT.’” The word
BACCARAT is disclaimed apart from the mark as shown.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system in Portable Document Format (“PDF”). Citations to the record
also include references to TTABVUE, the Board’s online docketing system. Unless otherwise
indicated, citations to the record are to Application Serial No. 97091740.

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Applicant appeals the Trademark Examining Attorney’s final refusal to register both
classes of goods in each application on the ground that Applicant’s marks so resemble
the registered standard character mark RISING PHOENIX on the Principal Register
that they are likely to cause confusion under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d).3 The registration identifies various goods and services in
International Classes 9, 25, 28 and 41, including the following items in International
Class 28:
… Apparatus for electronic games adapted for use with an
external display screen or monitor … gaming machines for
gambling; … all of the foregoing not in connection with a
soccer league in International Class 28.
After filing notices of appeal, Applicant requested reconsideration, but the
Examining Attorney denied Applicant’s requests and maintained the final refusal of
each application.
The appeals are fully briefed.4 For the reasons explained below, we affirm the
refusal to register as to both applications.
I. Judicial Notice
As a preliminary matter, we address two issues pertaining to judicial notice raised
in Applicant’s briefing of the appeals.
3 Registration No. 7117535 registered on July 25, 2023.
In the Final Office Actions, the Examining Attorney withdrew the previously issued Section
2(d) refusals based on Registration Nos. 5765508 and 6021331.
4 For application Serial No. 97091740, Applicant’s operative main brief may be found at 8
TTABVUE. The Board rejected Applicant’s initial brief for exceeding the twenty-five page
limit set forth in Trademark Rule 2.142(b)(2). 7 TTABVUE 1.

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In its main briefs filed in both applications, Applicant took judicial notice of
purported dictionary definitions of the words “rising” and “phoenix” without
identifying the dictionary or dictionaries from which those definitions were taken.5
Applicant cannot take judicial notice of a dictionary definition on its own initiative
but must first request the Board’s permission. Cf. Fed. R. Evid. 201(c)(2). And even if
Applicant had requested judicial notice, the request would be denied because
Applicant neither identified the source nor supplied a copy of the definition with
either brief. See In re Gregory, No. 76277664, 2004 TTAB LEXIS 277, at *2-3 (judicial
notice not taken of photocopies submitted with examining attorney’s brief because
neither the pages nor brief specified the dictionaries from which the copies were
made); see also Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d
1315, 1324 (Fed. Cir. 2018) (party requesting judicial notice must provide the
necessary information). As a result, we have disregarded Applicant’s arguments
based on the purported dictionary definitions of the words “rising” and “phoenix.”
In addition, in its reply brief filed for both applications, Applicant requests that
the Board take judicial notice of a blog entry on the website bitcasino.io.6 The request
is denied. Blog entries are not “sources whose accuracy cannot reasonably be
5 8 TTABVUE 9. Applicant also unilaterally took judicial notice of these words without
providing the sources in its Request for Reconsideration at TSDR 15. Applicant is advised
that it could have simply made the dictionary definitions of record with its Request for
Reconsideration by attaching copies or printouts of each definition. See TRADEMARK MANUAL
OF EXAMINING PROCEDURE (“TMEP”) § 715.03 (Nov. 2025).
6 11 TTABVUE 5.

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questioned.” Cf. Fed. R. Evid. 201(b)(2). None of Applicant’s arguments based on this
blog entry have been considered.
II. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits the registration of a mark that:
[c]onsists of or comprises a mark which so resembles a
mark registered in the Patent and Trademark Office, … as
to be likely, when used on or in connection with the goods
of the applicant, to cause confusion, or to cause mistake, or
to deceive.
15 U.S.C. § 1052(d). Our determination under Section 2(d) is based on an analysis of
all of the probative evidence of record bearing on the likelihood of confusion. In re E.
I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in
B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015); see also In re
Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023); In re Majestic Distilling
Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). We have considered each DuPont factor for
which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376,
1379 (Fed. Cir. 2019). When analyzing these factors, the overriding concerns are not
only to prevent buyer confusion as to the source of the goods, but also to protect the
registrant from adverse commercial impact due to use of a similar mark by a
newcomer. See In re Shell Oil Co., 992 F.2d 1204, 1207 (Fed. Cir. 1993).
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1353 (Fed.
Cir. 2011). “Each case must be decided on its own facts and the differences are often
subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973). In
any likelihood of confusion analysis, two key considerations are the similarity or

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dissimilarity of the marks and the goods. See In re i.am.symbolic, LLC, 866 F.3d 1315,
1322 (Fed. Cir. 2017) (citing Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156,
1164-65 (Fed. Cir. 2002)); see also In re Embiid, No. 88202890, 2021 TTAB LEXIS
168, at *10 (“[T]he fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”) (quoting Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
1103 (CCPA 1976)). These factors, as well as others, are discussed below.
As noted above, two classes of goods in the involved applications are the subject of
the Section 2(d) refusal. This opinion therefore analyzes the refusal by class where
appropriate. See, e.g., N. Face Apparel Corp. v. Sanyang Indus. Co., No. 91187593,
2015 TTAB LEXIS 328, at *31 (“Because each class in Applicant’s multi-class
application is, in effect, a separate application, we consider each class separately, and
determine whether [the Examining Attorney] has shown a likelihood of confusion
with respect to each.”).
A. The Marks
We commence with addressing the similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and commercial impression. See, e.g.,
Charger Ventures, 64 F.4th at 1380 (citing DuPont, 476 F.2d at 1361); Palm Bay
Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1371
(Fed. Cir. 2005) (same). “Similarity in any one of these elements may be sufficient to
find the marks confusingly similar.” In re Inn at St. John’s, LLC, No. 87075988, 2018
TTAB LEXIS 170, at *13 (quoting In re Davia, No. 85497617, 2014 TTAB LEXIS 214,

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at *21-24), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019); accord Krim-Ko Corp. v.
Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968) (“It is sufficient if the
similarity in either form, spelling or sound alone is likely to cause confusion.”)
(citation omitted).
1. Word Mark
It is undisputed that Applicant’s and Registrant’s standard character marks
RISING PHOENIX are identical in appearance and sound. Because both marks are
in standard characters, they may be used in the same size, color or stylized font. In
re Viterra, Inc., 671 F.3d 1358, 1364-65 (Fed. Cir. 2012) (a standard character mark
may be depicted in any font style, size, or color, and not merely “reasonable manners”
of depicting such mark). Furthermore, as will become evident in our discussion about
the goods, this is not a situation where the same marks are used to identify goods so
dissimilar as to engender different connotations or commercial impressions. See, e.g.,
In re Sydel Lingerie Co., 1977 TTAB LEXIS 189, at *4-5 (no likelihood of confusion
found between BOTTOMS UP for ladies’ and children’s underwear and BOTTOMS
UP for men’s suits, coats and trousers). As such, the marks “have the potential to be
used (at least in terms of their grammatical meaning) in exactly the same manner.”
In re i.am.symbolic, llc, No. 85044494, 2015 TTAB LEXIS 369, at *17, aff’d, 866 F.3d
1315 (Fed. Cir. 2017). The identical nature of Applicant’s Word Mark and the cited
mark weighs in favor of finding a likelihood of confusion.
2. Composite Mark
We now compare Applicant’s Composite Mark with Registrant’s standard

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character mark RISING PHOENIX, keeping in mind that our analysis cannot be
predicated on dissecting the marks into their various components but must be based
on the entire marks. See Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007
(CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered
piecemeal; rather, it must be considered as a whole in determining likelihood of
confusion.”). That being said, if one feature of a mark is more significant than another
feature, greater weight may be given to the dominant feature for purposes of
determining likelihood of confusion. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297,
1305 (Fed. Cir. 2018). This precept is especially true in instances involving composite
marks where greater weight is often given to the wording, because it is the wording
that purchasers would use to refer to the goods. See, e.g., Viterra, 671 F.3d at 1366.
We find that Applicant’s Composite Mark and the cited mark are similar in sound,
meaning, and overall commercial impression. Applicant’s Composite Mark
incorporates the entirety of the cited mark, RISING PHOENIX, which is the
dominant element of Applicant’s Composite Mark. Although Applicant’s mark also
includes the additional term BACCARAT, this descriptive word has been disclaimed
and thus is less significant in our analysis. Cunningham v. Laser Golf Corp., 222 F.3d
943, 947 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the
‘descriptive component of a mark may be given little weight in reaching a conclusion
on likelihood of confusion.’”) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 1060 (Fed.
Cir. 1985)).
Having determined that RISING PHOENIX is the dominant element in

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Applicant’s Composite Mark, it follows that the marks are highly similar in sound.
Consumers are likely to focus on this phrase in calling for the goods and not
pronounce the merely descriptive and disclaimed wording BACCARAT. It is also
noteworthy that the first two words in the Composite Mark are identical to the
entirety of the cited mark. Cf. Detroit Atheletic. Co., 903 F.3d at 1303 (“The identity
of the marks’ initial two words is particularly significant because consumers typically
notice those words first.”) (citations omitted). “[W]e also keep in mind the penchant
of consumers to shorten marks,” In re Bay State Brewing Co., No. 85826258, 2016
TTAB LEXIS 46, at *9 (citation omitted), meaning that consumers encountering the
cited mark may assume that it is an abbreviated version of Applicant’s Composite
Mark.
Both marks also project virtually the same meaning and commercial impression.
The depiction of a bird’s head rising within a circular flame reinforces the imagery
that the cited mark RISING PHOENIX projects rather than serving as a
distinguishing element.
The overall similarity of the Composite Mark with the cited mark weighs in favor
of finding a likelihood of confusion.
B. The Goods
We now compare the goods based on the language of the identifications in the
applications and cited registration. See Detroit Athletic Co., 903 F.3d at 1307; Stone
Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014); -
Hewlett Packard Co. v. Packard Press Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002). This

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DuPont factor “considers whether the consuming public may perceive the respective
goods [ ] of the parties as related enough to cause confusion about the source or origin
of the goods.” Naterra Int’l, Inc. v. Bensalem, 92 F.4th 1113, 1117 (Fed. Cir. 2024)
(quoting St. Helena Hosp., 774 F.3d at 752 (cleaned up) (citation omitted)). “It is
sufficient for a finding of likelihood of confusion if relatedness is established for any
item encompassed by the identification of goods within a particular class in the
application.” In re Aquamar, Inc., 2015 TTAB LEXIS 178, at *8 n.5 (citing Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335 (CCPA 1981)).
1. International Class 9
We first compare Applicant’s “Computer hardware and computer display screen
and monitor for game results” in Class 9 with Registrant’s identified goods in Classes
9 or 28 to ascertain whether they are “related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that the [goods] emanate from the same source.” Coach Servs., 668
F.3d at 1369 (internal citation omitted).
Based on the identifications alone, we find that Applicant’s “computer display
screen and monitor for game results” are intrinsically related to Registrant’s
“Apparatus for electronic games adapted for use with an external display screen or
monitor” in Class 28. See Hewlett-Packard, 281 F.3d at 1267 (finding the Board erred
in concluding that there was insufficient evidence of relatedness, because “[w]hile
additional evidence, such as whether a single company sells the goods and services of
both parties, if presented, is relevant to a relatedness analysis, [the Board] did not

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consider the important evidence already before it, namely the ITU application and
[opposer’s] registrations.”). This is because Registrant’s electronic game apparatus is
adapted for use with “an external display screen or monitor.” Thus, the cited
registration contemplates use of a “computer display screen and monitor for game
results,” like the one described in the applications, with Registrant’s “apparatus for
electronic games.”
We further find based on the description of the goods that these goods are
complementary since they operate together. See In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 1567 (Fed. Cir. 1984) (finding bread and cheese
relatedness through complementary use). Applicant’s monitor and computer display
screens operate with Registrant’s electronic game apparatus to perform its intended
function.
This DuPont factor weighs in favor of finding a likelihood of confusion for Class 9.
2. International Class 28
As with Class 9, we find that Applicant’s Class 28 goods are related to Registrant’s
Class 28 goods based on the identification themselves. Applicant’s “display screen or
monitor for game results in the nature of gaming devices” are intrinsically related to,
and complementary with, Registrant’s “Apparatus for electronic games adapted for
use with an external display screen or monitor” in Class 28 for the same reasons we
articulated above. Both identifications incorporate display screens and monitors. In
addition, the terminology “apparatus for electronic games” is sufficiently broad as to
encompass “gaming device.” This implies that Applicant’s and Registrant’s display

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screens and monitors may be used in connection with the same electronic gaming
system. This DuPont factor weighs in favor of finding a likelihood of confusion with
respect to Applicant’s Class 28 goods as well.
C. The Established, Likely-to-Continue Channels of Trade
Next, we consider the “[t]he similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 476 F.2d at 1361. This DuPont factor addresses
the question of whether the goods move from producer to consumer in the same
commercial pathways (e.g., brick-and-mortar retail stores, online specialty retailers,
or wholesale distributorships). As with our comparison of the goods, we are guided by
the language in the identifications of the applications and cited registration. See
Detroit Athletic Co., 903 F.3d at 1307; Stone Lion, 746 F.3d at 1323; Hewlett-Packard,
281 F.3d at 1267.
1. International Class 9
Applicant’s “Computer hardware and computer display screen and monitor for
game results” do not contain any limitations on the channels of trade, or classes of
purchasers. As such, Applicant’s Class 9 goods presumptively move in all normal
trade channels and to consumers that purchase such goods. See Levi Strauss & Co. v.
Abercrombie & Fitch Trading Co., 719 F.3d 1367, 1373 (Fed. Cir. 2013).
The Registrant’s Class 9 goods exclude use of all of the identified goods “in
connection with a soccer league,” with the additional limitation that “none of the
aforesaid goods relating to/for use in the fields of industrial applications, electrical
engineering, process control and automation.” We must therefore exclude those trade

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channels and classes of consumers implicated by such restrictions. But since the
identification is otherwise unrestricted, we must assume, as we do with Applicant’s
Class 9 goods, that such goods move in all normal trade channels and to consumers
that purchase such goods.
To ascertain the normal trade channels for Applicant’s and Registrant’s goods, we
must look to the record. Neither the Examining Attorney nor Applicant submitted
evidence or arguments regarding the trade channels or classes of consumers for
Applicant’s Class 9 goods. Thus, this factor is neutral in our analysis of Class 9.
2. International Class 28
Applicant’s Class 28 goods contain no restrictions as to trade channels or classes
of consumers while Registrant’s Class 28 goods exclude use of the identified items “in
connection with a soccer league.” As explained above, the record must inform our
determination as to the normal trade channels and classes of consumers. However,
the only evidence in the record is from Florida Fun Casino Party showing that party
rental services may provide both casino game tables such as BlackJack, Roulette,
Three Card Poker and gaming machines to consumers.7 Aside from the fact that this
evidence does not pertain to the goods which we found related, a single piece of
evidence is insufficient for us to make a broad factual finding about the respective
channels of trade and classes of customers. On this record, we cannot find that the
normal trade channels and classes of consumers overlap.
7 August 22, 2022 Office Action at TSDR 30-33 (printouts from floridafuncasinoparty.com
accessed on 8/22/2022).

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Compounding matters, the Examining Attorney incorrectly applies the
presumption of overlapping trade channels and consumers set forth in Viterra, 671
F.3d at 1362 and In re Yawata Iron & Steel Co., 403 F.2d 752, 771 (CCPA 1968) to
related goods. This presumption only applies where the goods are identical or legally
identical. This DuPont factor is neutral for Class 28 as well.
D. Purchasing Conditions
We also evaluate “[t]he conditions under which and buyers to whom sales are
made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 476 F.2d at 1361.
A heightened degree of care when making a purchasing decision may tend to
minimize likelihood of confusion. See, e.g., In re N.A.D., Inc., 754 F.2d 996, 999-1000
(Fed. Cir. 1985) (because only sophisticated purchasers exercising great care would
purchase the relevant goods, there would be no likelihood of confusion merely because
of the similarity between the marks NARCO and NARKOMED). Conversely, impulse
purchases of inexpensive goods may tend to have the opposite effect. Palm Bay Imps.,
396 F.3d at 1376. In evaluating this factor, we focus on the goods which we found to
be related.
The restrictions in the applications and cited registration discussed above as to
classes of consumers do not alter the fact that otherwise, the respective identifications
are unrestricted as to classes of purchasers, price, and industry. See Cunningham,
222 F.3d at 948 (affirming Board finding that where the identification is unrestricted,
“we must deem the goods to travel in all appropriate trade channels to all potential
purchasers of such goods”). We must therefore assume that notwithstanding the

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restrictions in the cited registration, both Applicant’s and Registrant’s goods are
otherwise available to all members of the general public, including ordinary
consumers. Although some of these consumers might be more sophisticated, others
may not be as knowledgeable. Basing our analysis “on the least sophisticated
potential purchasers,” Stone Lion, 746 F.3d at 1325, we deem this DuPont factor
neutral for both classes of goods.
E. The Number and Nature of Similar Marks in Use on Similar Goods
We now address the number and nature of similar marks in use on similar goods.
DuPont, 476 F.2d at 1361. This factor “is a measure of the extent to which other
marks weaken the assessed mark,” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362
(Fed. Cir. 2023), and indicates whether it is “entitled to only a narrow scope of
protection.” Omaha Steaks Int’l, 908 F.3d at 1324 (quoting Palm Bay Imps., 396 F.3d
at 1373). “When a field is crowded with similar marks, the theory is that customers
will be more adept at distinguishing marks from each other and are less likely to be
confused by similar marks.” Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1235 (Fed.
Cir. 2025) (citing Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1338 (Fed.
Cir. 2015)).
“[T]he strength of a mark is not a binary factor” and “varies along a spectrum from
very strong to very weak.” Id. (internal citations omitted). “The weaker [the
registrant’s] mark, the closer [an applicant] mark can come without causing a
likelihood of confusion and thereby invading what amounts to its comparatively
narrower range of protection.” Id. (internal citations omitted).

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In determining the strength or weakness of a mark, we consider both its inherent
or conceptual strength, based on the nature of the mark itself, and, if there is evidence
in the record of marketplace recognition of the mark, its commercial or marketplace
strength. Spireon, 71 F.4th at 1362 (“There are two prongs of analysis for a mark’s
strength under the sixth factor: conceptual strength and commercial strength.”)
(citing In re Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010)).
Conceptual strength “is a measure of a mark’s distinctiveness, Chippendales, 622
F.3d at 1353, and distinctiveness is ‘often classified in categories of generally
increasing distinctiveness[:] ... (1) generic; (2) descriptive; (3) suggestive; (4)
arbitrary; or (5) fanciful.’” Spireon, 71 F.4th at 1362 (quoting Two Pesos, Inc. v. Taco
Cabana, Inc., 505 U.S. 763, 768 (1992)). “Commercial strength, on the other hand, is
the marketplace recognition value of the mark,” Spireon, 71 F.4th at 1362 (internal
citation and quotation marks omitted), and “whether consumers in fact associate the
. . . mark with a unique source.” Id. In this regard, the purpose of introducing evidence
of third-party marketplace use is “to show that customers have become so conditioned
by a plethora of such similar marks that customers ‘have been educated to distinguish
between different [such] marks on the bases of minute distinctions.’” Omaha Steaks,
908 F.3d at 1325 (quoting Palm Bay Imps., 396 F.3d at 1373-74). Thus, an applicant
in an ex parte appeal can contract the scope of protection otherwise accorded a cited
mark by adducing evidence of conceptual and/or commercial weakness. In this case,
Applicant challenges both the conceptual and commercial strength of the cited mark.
1. Conceptual Weakness

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First, we analyze whether the cited mark RISING PHOENIX is conceptually
weak. At the outset, we note that the mark is registered on the Principal Register
without a claim of acquired distinctiveness, and thus carries a presumption under
Trademark Act Section 7(b), 15 U.S.C. § 1057(b), that it is inherently distinctive. See,
e.g., New Era Cap Co. v. Pro Era, LLC, No. 91216455, 2020 TTAB LEXIS 199, at *29.
This does not however preclude Applicant from disputing the cited mark’s conceptual
strength with competent evidence such as third-party registrations. Third-party
registrations may “prove that some segment of a [mark] has a normally understood
and well-recognized descriptive or suggestive meaning, leading to the conclusion that
that segment is relatively weak” in connection with the goods or services. Juice
Generation, 794 F.3d at 1339 (internal quotation omitted). Even if “there is no
evidence of actual use” of “third-party registrations,” such registrations “may be given
some weight to show the meaning of a mark in the same way that dictionaries are
used.” Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 917 (CCPA 1976).Applicant
postulates that the cited mark RISING PHOENIX is highly suggestive and
conceptually weak for the identified goods. To support this contention, Applicant
made of record two different categories of previously registered third-party marks:
marks consisting or comprised of the same phrase RISING PHOENIX and marks
consisting or comprised of the transposed version PHOENIX RISING.

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a. Third-Party RISING PHOENIX Registered Marks
Applicant made of record the following three (3) valid and subsisting third-party
registrations incorporating the phrase RISING PHOENIX:8
Registration No. 6987391 for the mark RISING PHOENIX
LAW GROUP (LAW GROUP disclaimed) for “legal
services” in International Class 43;
Registration No. 5149179 for the mark RISING PHOENIX
PRESS and Design (PRESS disclaimed) for “book
publishing; publishing of electronic publications” in
International Class 41; and
Registration No. 6533038 for the mark RISING PHOENIX
HOLDINGS CORPORATION and Design (HOLDINGS
CORPORATION disclaimed) for “disaster preparedness
and recovery services, namely, business consulting services
provided to governmental and private entities in the fields
of business continuity of operations, business contingency
planning, and disaster and emergency preparedness,
planning, and recovery, business administration, business
management, business consultation services, and business
assistance, advisory, and consulting services provided to
grantors, grantees, and grant applicants in the field of
disaster-related governmental grant programs” in
International Class 35.
These third-party marks are similar to the cited mark RISING PHOENIX to the
extent that they each incorporate this exact same phrase; any additional wording is
disclaimed. However, to fully assess their probative value, a “controlling inquiry is
the extent of third-party marks in use on ‘similar’ goods or services’ offered to ‘the
8 February 5, 2025 Response to Office Action at TSDR 59-63. We have disregarded
Registration Nos. 5558649 and 5829677 which were cancelled respectively on March 21, 2025
and February 20, 2026 for failure to file a Section 8 affidavit/declaration of use or excusable
nonuse. See, e.g., New Era Cap Co., 2020 TTAB LEXIS 199, at *37 (“The existence of a
cancelled registration--particularly one cancelled for failure to provide a declaration of
continued use--does not tend to show that the cited mark is weak due to third-party use.”)
(citation omitted).

Serial Nos. 97091740 and 97091827
- 19 -
relevant public.’” Omaha Steaks Int’l, 908 F.3d at 1324 (citing Century 21 Real Estate
Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992)). None of the services
identified in the above in the third-party registrations above bear any similarity or
relationship to any of Registrant’s Class 9 or 28 goods. As a result, none of this
evidence conceptually weakens the cited mark.
b. Third-Party PHOENIX RISING Registered Marks
Applicant first points to the Examining Attorney’s previously cited marks set forth
in the following registrations that were subsequently withdrawn as a basis for refusal
under Section 2(d):
Registration No. 5765508 for the mark FIRE PHOENIX
RISING for “Computer game software for gambling
machines; Computer game software for gaming machines,
namely, slot machines and video lottery terminals;
Computer software and firmware for playing games of
chance on any computerized platform, including dedicated
gaming consoles, video based slot machines, reel based slot
machines, and video lottery terminals; Games that accept
virtual or monetary wagers sold as a feature of game
software;” and
Registration No. 6021331 for the mark PHOENIX RISING
for “Computer software and firmware for games of chance
on any computerized platform, including slot machines,
and video lottery terminals; Downloadable software and
computer programs for playing casino games, slot games,
mobile games, lottery games, online wagering games and
online electronic games; Downloadable electronic game
programs and software” in International Class 9; and
“Reconfigurable casino and lottery gaming equipment,
namely, gaming machines” in International Class 28;
“Entertainment services, namely, providing online
electronic games; Entertainment services, namely,
providing temporary use of non-downloadable electronic
games” in International Class 41.

Serial Nos. 97091740 and 97091827
- 20 -
Applicant also introduced seven (7) additional third-party registrations from six
(6) different registrants purporting to show conceptual weakness of the phrase
PHOENIX RISING:9
Registration No. 7075077 for the standard character mark
PHOENIX RISING and Registration No. 7123200 for the
stylized mark PHOENIX RISING AMERICAN MADE for
“Smokers’ articles, namely, smoking pipes in the nature of
glass pipes, water pipes, water bongs in the nature of water
smoking pipes, and water bubblers” in International Class
34;
Registration No. 7582359 for the standard character mark
PHOENIX RISING for “Entertainment in the nature of an
amusement park ride” in International Class 41;
Registration No. 6464565 for the standard character mark
PHOENIX RISING STUDIOS (STUDIOS disclaimed) for
“Photography services; Production and distribution of
independent motion pictures; Entertainment media
production services for motion pictures, television and
Internet; Entertainment media production services for the
internet; Entertainment services in the nature of
production of films, multimedia programs, and series of
multimedia programs with inspirational themes for
distribution via theater, television, the internet, digital
and mobile media; Entertainment services in the nature of
development, creation, production, distribution, and post-
production of films, multimedia program series, and
multimedia programs with a focus on inspirational and
informational stories; Entertainment services, namely,
multimedia production services; Film studio services; Film
and video production; Providing audio or video studio
services; Providing facilities for producing video, cinema
and photography productions” in International Class 41;
Registration No. 7199692 for the standard character mark
PHOENIX RISING EMPOWERMENT PROJECT
(EMPOWERMENT PROJECT disclaimed) for “Charitable
services, namely, providing educational materials in the
nature of non-downloadable electronic publications in the
9 February 5, 2025 Response to Office Action at TSDR 48-57.

Serial Nos. 97091740 and 97091827
- 21 -
nature of blog posts and newsletters, videos, and
podcasts to survivors of sexual assault and harassment
and other members of the general public interested in
sexual assault and harassment prevention, intervention,
and survivorship” in International Class 41;
Registration No. 7204266 for the standard character mark
PHOENIX RISING YOGA THERAPY (YOGA THERAPY
disclaimed) for “Training services in the nature of
educational courses, classes, online classes in the fields of
yoga instruction and yoga therapy for yoga instructors;
yoga instruction; yoga therapy in the nature of fitness
instruction in the field of yoga” in International Class 41;
and
Registration No. 5880445 for the standard character mark
PHOENIX RISING FC and Registration No. 7075077 for
the composite mark PHOENIX RISING FC for goods and
services in International Class 9 and 41 all related to
soccer; various paper goods in International Class 16 and
clothing items in International Class 25.
From both a quantitative and qualitative perspective, Applicant’s evidence falls
short. One of the previously cited registrations to support the Section 2(d) refusal,
Registration No. 5765508, was cancelled for failure to file a Section 8
affidavit/declaration of use or excusable nonuse. “The existence of a cancelled
registration—particularly one cancelled for failure to provide a declaration of
continued use—does not tend to show that the cited mark is weak due to third-party
use.” Inn at St. John’s, 2018 TTAB LEXIS 170, at *9.
Another flaw with Applicant’s evidence is that none of the goods identified in
Registration Nos. 7075077, 7123200, 7582359, 6464565, 7199692, 7204266, 5880445
and 5880444 are remotely similar or related to any of Registrant’s Class 9 or 28 goods.
As a result, they do not conceptually weaken the cited mark.

Serial Nos. 97091740 and 97091827
- 22 -
This leaves us with the previously cited Registration No. 6021331 for the mark
PHOENIX RISING, which is transposition of the currently cited mark RISING
PHOENIX. It also includes goods, “Reconfigurable casino and lottery gaming
equipment, namely, gaming machines” which are legally identical to Registrant’s
“gaming machines for gambling.” This is the only third-party registration impinging
on the conceptual weakness of the cited mark. Cf. TMEP § 1207.01(b)(vii) (“Where
the primary difference between marks is the transposition of the elements that
compose the marks, and where this transposition does not change the overall
commercial impression, there may be a likelihood of confusion.”) and cases cited
therein. The existence of a single third-party registration relevant to conceptual
weakness hints, but does not prove, some degree of conceptual weakness.
2. Commercial Weakness
Applicant submitted third-party Internet evidence purporting to show commercial
weakness. We discuss each piece of evidence by category.
a. Search Engine Results
The first category of evidence consists of two printouts of Google® search engine
results for the phrases “phoenix gaming” and “rising gaming.”10 Google® search
engine results have limited probative value because they do not show the full context
in which a phrase is used on the retrieved websites. See In re Bayer AG, 488 F.3d 960,
967 (Fed. Cir. 2007). We are unable to ascertain whether any of these search results
10 July 6, 2025 Request for Reconsideration at TSDR 45-46 and 58-59.

Serial Nos. 97091740 and 97091827
- 23 -
are linked to websites that sell or manufacture goods that are similar to Registrant’s
goods.
b. YouTube Screenshots
The second category of evidence consists of screenshots from three different
YouTube channels.
The first is a screenshot from the YouTube channel “Phoenix Gaming” under the
handle @Phoenix_Gaming. The channel description begins with “Hello everyone and
thank you for checking out my channel. I am a long time, passionate …” 11 The Board
cannot determine the relevance of this evidence without a printout of the full
description of the YouTube channel.
The second is a screenshot from the YouTube channel “Phoenix Gaming” under
the handle @phoenixgamingchris.12 The only text visible from the channel description
is “Your home for tabletop gaming content! I cover strategies, tips, and rule
breakdowns …” Again, without the full context describing the type of gaming, the
Board is unable to determine whether or not this evidence is pertinent.
The final YouTube channel screenshot Applicant introduced is entitled
“RisingFunGaming” which appears under a handle bearing the same name. The
channel is self-described as “Japanese gaming content by an Australian who is fluent
11 July 6, 2025 Request for Reconsideration at TSDR 47.
12 July 6, 2025 Request for Reconsideration at TSDR 50.

Serial Nos. 97091740 and 97091827
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in Japanese …”13 Aside from the incompleteness of the description in terms of
content, it appears to be directed to consumers who understand Japanese.
c. Third-Party Websites
The final category of evidence are third-party websites which are summarized
below:
The Phoenix Gaming Lounge located in Phoenix, Arizona
advertises on its website that it offers events involving
games such as Pokemon, and Lorcana;14
Phoenix Gaming touts itself as “Nordic’s Largest Rust
Community” and features such as “Server Uptime,” “Client
Security Scan,” and “Wipe Cycle.”15
Phoenix Fire Games is a retail store that has tables and
seating for customers to bring their own board games or
rent board games from the store. It also sells Pokemon
singles and Magic.16
A Fandom wiki for a Brazilian team called Rising
Gaming.17
An eBay Store called Rising Sun Gaming offering for sale
computer keyboards, computer laptops, Playstations, and
Nintendo game systems.18
None of the above evidence bears any similarity to any of Registrant’s goods.
Casting that problem aside, while each usage contains either the word “Rising” or
“Phoenix,” the additional wording in each of the third-party marks is different enough
13 July 6, 2025 Request for Reconsideration at TSDR 60.
14 July 6, 2025 Request for Reconsideration at TSDR 68.
15 July 6, 2025 Request for Reconsideration at TSDR 52-53.
16 July 6, 2025 Request for Reconsideration at TSDR 54-57.
17 July 6, 2025 Request for Reconsideration at TSDR 62-67.
18 July 6, 2025 Request for Reconsideration at TSDR 68-71.

Serial Nos. 97091740 and 97091827
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to make them less similar to the cited mark RISING PHOENIX. See Sabhnani v.
Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS 464, at *32 (“[W]hile the
registered marks all contain the word ‘MIRAGE,’ they contain additional elements
that cause many of them to be less similar to Petitioner’s mark than Respondent’s
marks are.”).
3. Conclusion
Applicant has not adduced evidence that the cited mark is either commercially or
conceptually weak in connection with the identified goods or goods similar thereto,
making the cited mark deserving a lesser scope of protection. This factor is neutral.
F. Lack of Actual Confusion and Concurrent Use
Next, we address Applicant’s argument there is no known evidence of actual
confusion. Applicant’s contention implicates the DuPont factors of the “nature and
extent of any actual confusion,” and the “length of time during and conditions under
which there has been concurrent use without evidence of actual confusion.” DuPont,
476 F.2d at 1361. These factors require us to look at actual market conditions, to the
extent there is evidence of such conditions of record. In re Guild Mortg. Co., No.
86709944, 2020 TTAB LEXIS 17, at *19. In other words, for the absence of actual
confusion to be probative, there must have been a “significant opportunity” for
confusion to have occurred. Barbara’s Bakery Inc. v. Landesman, No. 76308993, 2007
TTAB LEXIS 9, at *14.
Applicant’s arguments lack evidentiary support. The involved applications were
filed based on a bona fide intent to use the mark in commerce, and Applicant did not

Serial Nos. 97091740 and 97091827
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introduce any evidence that it has commenced use of its Word or Composite Marks in
connection with the goods identified in its intent-to-use applications. Nor did
Applicant submit any evidence regarding Registrant’s actual use in the marketplace
of its registered mark in connection with any of its identified goods. “[U]ncorroborated
statements of no known instances of actual confusion . . . are of little evidentiary
value,” especially in ex parte examination. Majestic Distilling Co., 315 F.3d at 1317.
It is therefore no surprise that there is no evidence of actual consumer confusion
between Applicant’s and Registrant’s marks since on the record before us there has
been no opportunity for coexistence.
In view of the foregoing, these DuPont factors are neutral.
G. The Extent of Potential Confusion
Lastly, we assess “[t]he extent of potential confusion, i.e., whether de minimis or
substantial.” DuPont, 476 F.2d at 1361. This factor differs from the DuPont factors
just discussed above to the extent that it is a prospective inquiry, not retrospective.
Applicant merely reiterates its contention that the goods are not related. This
argument has no bearing on the extent of potential confusion. The evidence discussed
above shows that there has been no coexistence in the marketplace of Applicant and
Registrant meaning that we cannot predict the potential for confusion. We therefore
deem this DuPont factor neutral.
H. Conclusion – The DuPont Factors
The final step in analyzing likelihood of confusion is to assess our findings under
the DuPont factors discussed above and determine whether, on balance, confusion is

Serial Nos. 97091740 and 97091827
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likely. See Charger Ventures LLC, 64 F.4th at 1379.
We have carefully considered all of the evidence made of record, as well as all of
the arguments related thereto. Applicant’s Word Mark is identical to the cited mark
which weighs in favor of concluding that confusion is likely. Applicant’s Composite
Mark is similar overall to the cited mark, favoring a likelihood of confusion with the
other application as well. For the Class 9 and 28 goods identified in each application,
the goods are related and complementary to Registrant’s Class 28 goods which also
weighs in favor of a likelihood of confusion. Applicant has failed to show that the cited
mark is conceptually or commercially weak. That factor, and the remaining factors
discussed above are also neutral. With no DuPont factors weighing against a
likelihood of confusion, we conclude that confusion is likely.
Decision: The Section 2(d) refusal is affirmed as to both applications.