Dillon M. Fink

This Opinion Is Not a
Precedent of the TTAB
Mailed: May 27, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Dillon M. Fink
_____
Serial No. 98418182
_____
Christopher W. Brody and Scott J. Major, of Millen, White, Zelano & Branigan P.C.,
for Dillon M. Fink.
Daniel Capshaw, Trademark Examining Attorney, Law Office 110,
Loksye Lee Riso, Managing Attorney.
_____
Before Greenbaum, Thurmon and Stanley, Administrative Trademark Judges.
Opinion by Thurmon, Administrative Trademark Judge:
Dillon M. Fink (“Applicant”) seeks registration on the Principal Register of the
mark WHIRL PONG, in standard characters, with “PONG” disclaimed, for
“Equipment sold as a unit for playing drinking games featuring a rotating turntable
that holds cups,” in International Class 28.1 The Trademark Examining Attorney
1 Application Serial No. 98418182, was filed on February 23, 2024, 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.
Citations to the prosecution file are to entries in the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system in .pdf format. Citations to the appeal record are to TTABVUE,
the Board’s online docketing system.

Serial No. 98418182
- 2 -
issued a final refusal of registration under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d), finding a likelihood of confusion, based on a Registration of the mark
WHIRLBALL, in standard characters, for “portable action skill games; portable
target games; the aforementioned goods specifically excluding amusement park
equipment,” in International Class 28.2
The appeal is briefed and ready for final decision. We affirm the refusal to register.
Section 2(d) – Applicable Law
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on a 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 (2015); see also In re Majestic
Distilling Co., 315 F.3d 1311, 1314 (Fed. Cir. 2003). We must consider each DuPont
factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912
F.3d 1376, 1378-79 (Fed. Cir. 2019). “Whether a likelihood of confusion exists between
an applicant’s mark and a previously registered mark is determined on a case-by-case
basis, aided by application of the thirteen DuPont factors.” Omaha Steaks Int’l, Inc.
v. Greater Omaha Packing Co., 908 F.3d 1315, 1318 (Fed. Cir. 2018). When analyzing
these factors, the overriding concerns are not only to prevent buyer confusion as to
the source of the goods or services, 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, 1208 (Fed. Cir. 1993).
2 Registration No. 7361630, issued April 16, 2024.

Serial No. 98418182
- 3 -
“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). 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, 1356 (Fed. Cir. 2011);
Shell Oil, 992 F.2d at 1206 (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the goods or services. See In re i.am.symbolic, llc, 866 F.3d 1315,
1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156,
1164-65 (Fed. Cir. 2002)); In re Chatam Int’l Inc., 380 F.3d 1340, 1342 (Fed. Cir.
2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA
1976) (“The 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.”).
Likelihood of Confusion – Analysis
The Applicant and the Trademark Examining Attorney presented arguments in
their briefs under DuPont factors one, two and six. We address these factors below.
A. Similarity of the Goods
We evaluate the second DuPont factor based on the goods identified in the
Application and the cited Registration. See Stone Lion Cap. Partners, LP v. Lion Cap.
LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014); Octocom Sys., Inc. v. Hous. Comput. Servs.
Inc., 918 F.2d 937, 942 (Fed. Cir. 1990). It is sufficient for a finding of likelihood of
confusion as to a class of goods in the application if relatedness is established between

Serial No. 98418182
- 4 -
any of the goods identified in that class and the cited Registration. Tuxedo Monopoly,
Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981); see also Double Coin
Holdings Ltd. v. Tru Dev., No. 92063808, 2019 TTAB LEXIS 347, at *18; In re
Aquamar, Inc., No. 85861533, 2015 TTAB LEXIS 178, at *9 n.5.
The cited Registration identifies “portable action skill games; portable target
games; the aforementioned goods specifically excluding amusement park equipment,”
in International Class 28. The Application identifies “Equipment sold as a unit for
playing drinking games featuring a rotating turntable that holds cups,” in
International Class 28. While the application was filed based on an intent to use the
mark, Applicant submitted evidence showing its intended goods, and we provide an
image below:
3
We use this image as an example of the goods Applicant intends to sell, while noting
that the actual identification of goods controls our analysis. The product is a drinking
3 Id. at 53.

Serial No. 98418182
- 5 -
game that apparently consists of a rotating platform holding cups that serve as
targets for a small ball, that looks like a ping-pong ball. This product is within the
scope of the goods identified in the Application, and it shows that this game, while
intended to be played while drinking (likely drinking alcoholic beverages, like beer),
is a skill game and a target game. Participants need skill (or luck) to successfully get
the small ball into one of the rotating cups.
The point of this evaluation of Applicant’s goods is to show that these goods are
fully subsumed within the scope of the goods identified in the cited Registration. The
game shown in Applicant’s evidence is a “portable action skill game” and a “portable
target game,” both specific types of goods from the cited Registration. The goods,
therefore, are identical in part, and this fact increases the likelihood of confusion.
The Trademark Examining Attorney submitted evidence from what appears to be
a website operated by the owner of the cited WHIRLBALL mark. The image below
shows a game featured on this website, a game that is both a portable action skill
game and a portable target game (i.e., it is a product within the scope of the goods
identified in the cited Registration).

Serial No. 98418182
- 6 -
4
We provide this example, because it confirms that the goods overlap. While this game
does not rotate, it appears to be another variation of the same concept of trying to get
small ping-pong balls into cups. The identification of goods in the Application is
narrower than that in the cited Registration, but that does not avoid overlap. It
simply shows that Applicant has identified a subsegment of the range of games
identified in the cited Registration. We find Applicant’s goods to be subsumed within
the broader scope of the goods identified in the cited Registration. The second DuPont
factor strongly supports the refusal.5
4 Office Action dated September 17, 2024, at 38. This game does not use the WHIRLBALL
mark.
5 The Trademark Examining Attorney also submitted evidence of third-party uses via
internet screenshots and third-party registrations to shows that other parties offer goods
identified in both the Application and cited Registration under a single mark. This evidence
was submitted to show the goods are related. Because we find the goods are identical in part,
we need not address the relatedness evidence.

Serial No. 98418182
- 7 -
B. Similarity of the Marks
To evaluate the similarity of the marks under the first DuPont factor, we consider
the marks in their entireties as to appearance, sound, connotation and commercial
impression. See, e.g., Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1371 (citing DuPont, 476 F.2d at 1361). “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, at *4), 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).
“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc. v. Triumph Learning, LLC, 668 F.3d 1356,
1368 (Fed. Cir. 2012). The focus is on the recollection of the average purchaser, who
normally “retains a general rather than a specific impression of marks.” In re
i.am.symbolic, llc, No. 85916778, 2018 TTAB LEXIS 281, at *11.
The marks are similar. Applicant’s mark is WHIRL PONG and the cited mark is
WHIRLBALL. The word “whirl” is the first part of both marks and is the dominant

Serial No. 98418182
- 8 -
part of each mark.6 In re Detroit Athletic Co., 903 F.3d 1296, 1303 (Fed. Cir.
2018) (finding “the identity of the marks’ two initial words is particularly significant
because consumers typically notice those words first”); Palm Bay Imps., 396 F.3d at
1372-73; Presto Prods., Inc. v. Nice-Pak Prods. Inc., 1988 TTAB LEXIS 60, at *8 (“it
is often the first part of a mark which is most likely to be impressed upon the mind
of a purchaser and remembered”). Applicant disclaimed the word “pong,” a word that
describes a key aspect of the goods which are a variation of the beer pong game, as
the evidence of record shows.7 We will evaluate that evidence more below when we
consider the similarity of the goods, but it suffices here to note that the word “pong”
is descriptive of Applicant’s goods and therefore has little to no source identifying
function on its own. The cited mark is a single compound word, but we find the word
“ball,” as used in the cited mark, is also descriptive of an aspect of the goods identified
in the cited Registration, which, as discussed further in the next section, encompass
portable action skill games and portable target games that are played with a ball.
The word “whirl,” therefore, is the only distinctive part of both marks.8 That leaves
the marks similar in appearance, sound, meaning and commercial impression.
Applicant is correct that the marks are distinguishable, particularly when compared
6 Whirl means “to move in a circle or similar curve especially with force or speed,” according
to a dictionary definition submitted by Applicant. Request for Reconsideration dated March
23, 2025, at 41.
7 Request for Reconsideration dated March 23, 2025, at 53.
8 We find below, under the sixth DuPont factor, that the word “whirl” is commonly used
within the relevant market to connote a rotating or spinning feature of the goods. This finding
shows that the word “whirl” is not very distinctive within the market, but it remains the
dominant element of these marks because the remaining elements are descriptive or generic
for the identified goods.

Serial No. 98418182
- 9 -
side-by-side. But that isn’t the question before us. We must determine if the marks
are similar in a way that will increase or decrease the likelihood of confusion. Here,
consumers are likely to remember and rely on the word “whirl” in these marks. When
consumers familiar with the cited WHIRLBALL mark see Applicant’s mark, some
will mistake Applicant’s WHIRL PONG goods for the Registrant’s.
The marks share the same structure, with a distinctive word or segment (whirl)
followed by a descriptive word or segment (ball or pong). This will lead some
consumers to mistakenly believe Applicant’s WHIRL PONG goods are a line
extension of Registrant’s WHIRLBALL goods. See, e.g., Joel Gott Wines, LLC v.
Rehoboth Von Gott, Inc., 2013 TTAB LEXIS 314, at *32 (“Purchasers of opposer’s
GOTT and JOEL GOTT wines are likely to assume that applicant’s goods, sold under
the mark GOTT LIGHT and design, are merely a line extension of goods emanating
from opposer.”). The structure of the marks involved in this appeal make this type of
confusion more likely.
Considering the marks in their entireties, we find the marks similar in
appearance, sound, meaning and commercial impression. The first DuPont factor
supports the refusal.
C. Conceptual Strength of the Cited Mark
Under the sixth Dupont factor, we consider “[t]he number and nature of similar
marks in use on similar goods.” Dupont, 476 F.2d at 1361. The sixth DuPont factor
allows an applicant in an ex parte appeal to contract the scope of protection of a cited
mark by adducing evidence of conceptual and commercial weakness. Id.

Serial No. 98418182
- 10 -
Applicant argues that the word “whirl” is common within the market for games
and, as a result, the common use of this term is not likely to cause confusion.9 Before
we address the evidence Applicant relies upon for these arguments, we note there is
a limit on how far this evidence can be taken. Because the cited Registration of the
WHIRLBALL mark is “prima facie evidence of the validity of the registered mark,’’
see Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), we must assume the mark
is inherently distinctive as evidenced by its registration on the Principal Register
without a claim of acquired distinctiveness under Section 2(f) of the Trademark Act.
See Tea Bd. of India, No. 91118587, 2006 TTAB LEXIS 330, at *62; New Era Cap Co.,
Inc. v. Pro Era, LLC, No. 91216455, 2020 TTAB LEXIS 199, at *29-30. Thus, at the
very least, we must afford the cited WHIRLBALL mark “the normal scope of
protection to which inherently distinctive marks are entitled.” Bell’s Brewery, Inc. v.
Innovation Brewing, No. 91215896, 2017 TTAB LEXIS 452, at *20. Applicant’s third-
party evidence may be relevant to show where, within the range of inherently
distinctive marks, the WHIRLBALL mark belongs, but we cannot find the mark
merely descriptive given its registration.
If properly made of record, third-party registrations or evidence of third-party
uses may be relevant, in the manner of dictionary definitions, “to prove that some
segment of the [marks] has a normally understood and well recognized descriptive or
suggestive meaning, leading to the conclusion that that segment is relatively weak.”
Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir. 2015). See
9 12 TTABVUE 3.

Serial No. 98418182
- 11 -
also Jack Wolfskin, 797 F.3d 1363 (Fed. Cir. 2015); Tektronix, Inc. v. Daktronics, Inc.,
534 F.2d 915 (CCPA 1976) (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”). “[E]vidence of third-party
registrations is relevant to ‘show the sense in which . . . a mark is used in ordinary
parlance.’” In re Guild Mortg. Co., No. 86709944, 2020 TTAB LEXIS 17, at *10
(quoting Juice Generation, 794 F.3d at 1339 (noting that third-party use and
registrations may be used to establish how a term is understood)).
Applicant submitted evidence of third-party registrations of marks and third-
party internet uses of marks that include the word “whirl” or a variant and that
identify some type of game.10 While Applicant argues there has been “significant
dilution of the shared term ‘whirl’” due to the third party uses, we must examine the
evidence to determine whether the third-party uses are on similar goods and convey
a consistent meaning of the word “whirl” within the market.11 See Omaha Steaks
Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1324-25 (Fed. Cir. 2018)
(error to rely on third-party evidence of similar marks for dissimilar goods, as Board
must focus “on goods shown to be similar”); In re i.am.symbolic, llc, 866 F.3d at 1328
(disregarding third-party registrations for other types of goods where the proffering
party had neither proven nor explained that they were related to the goods in the
cited registration).
10 Response to Office Action dated December 6, 2024, at 5-18; Request for Reconsideration
dated March 23, 2025, at 6-40.
11 12 TTABVUE 3.

Serial No. 98418182
- 12 -
In Omaha Steaks, the Federal Circuit explained the importance of limiting the
scope of the inquiry into third-party uses. Omaha Steaks, 908 F.3d at 1324-25. The
parties in Omaha Steaks identified “meat” as their goods, but the third-party
evidence included other foods, like popcorn and wine. Id. at 1325. Because the
identified goods were limited to meat, the court held it was error to consider other
registrations for other types of food. Id.
We begin with the third-party registration evidence, which consists of seven
registrations, though two of these registrations are owned by the same entity.12 These
include the following:
• The New Amazing Whirly Ball and Whirly Pets (each with a design
element) for flying toys, in International Class 28;13
• WHIRLYBALL for an amusement park game where users try to advance a
ball through a goal, in International Class 28;14
• WHIRL-A-WISH for coin operated amusement machines, in International
Class 28;15
• WHIRL OF FUN for a prize wheel game, in International Class 28;16
• WHIRLY’S WORLD for a board game, in International Class 28;17 and,
• WHIRLING BLISS MACHINE for a hand-held game or amusement device,
in International Class 28.18
12 Response to Office Action dated December 6, 2024, at 5-18.
13 Id. at 7, 15. These two registrations are owned by the same entity.
14 Id. at 5.
15 Id. at 9.
16 Id. at 11.
17 Id. at 13.
18 Id. at 17.

Serial No. 98418182
- 13 -
Applicant also submitted internet screenshots showing uses of marks that include
the word “whirl” or a variant for games.19 This evidence includes board games, cell
phone app games and amusement park games, with most of the games appearing to
include some rotation or spinning feature. For example, Applicant’s evidence shows
three different uses of the mark WHIRL WIN for three different games, apparently
provided by three different entities, where all three games feature a rotation or
spinning element. We show these three games below to illustrate both their
differences and common features.
20
19 Request for Reconsideration dated March 23, 2025, at 6-40.
20 Id. at 13-14.

Serial No. 98418182
- 14 -
21
22
This evidence fails to show that these products are currently on the market, but
it does show that these products were created and sold under identical word marks.
The products look nothing alike and it appears two of the three are large devices
meant for use in an arcade or other large space. The third appears to be some type of
21 Id. at 15.
22 Id. at 26.

Serial No. 98418182
- 15 -
board game. We find this evidence probative, even without knowing the current
status of the products, because it shows that three different parties used the mark
WHIRL WIN for games with some type of rotational feature.
Most of the third-party evidence submitted by Applicant shares this
characteristic. The evidence shows a variety of games, different in many respects, but
all with some type of rotation or spinning as part of the game. The mark WHIRL-A-
WISH is shown with a game that allows users to roll a coin into a container (the coin
apparently rotates down the device in an entertaining manner) where the coins will
go to some charity or other organization.23 WHIRLING WITCHCRAFT is a board
game featuring some type of rotation.24 WHIRL-WIND is a pinball machine with
rotating or spinning features.25 WHIRL O is a toy with a spinning disc.26 WHIRL-O
WIZARD is a board game with a rotation feature.27
There are problems with some of Applicant’s evidence. Some of the third-party
games are vintage products that may not still be on the market. On the other hand,
some of the older games are presented on websites that sell such vintage products, so
the marks seem to still be in use or at least in some circulation among consumers.28
Some of the internet evidence comes from websites in different languages that do not
23 Id. 16-18.
24 Id. at 20-22.
25 Id. at 27.
26 Id. at 23-24.
27 Id. at 25.
28 See, e.g., id. at 8-9, 10, 11-12.

Serial No. 98418182
- 16 -
indicate what consumers in the United States see and understand about uses of the
word “whirl” in marks for games.29 These are important limitations on the evidence.
Despite these limits, we find Applicant’s third-party evidence probative. This
evidence is consistent with the guidance in the Juice Generation and Omaha Steaks
decisions discussed above. Almost every piece of third-party evidence shows use of
the word “whirl” or a variant for a game or other amusement product that features
some form of rotation or spinning. So, just as the court explained in Juice Generation,
this evidence is akin to a marketplace dictionary, as it shows that the word “whirl” is
used within this market to connote rotation or spinning. This is not surprising as the
actual dictionary definition of “whirl” also focuses on rotation or spinning. The third-
party evidence confirms that this is a widely used and understood meaning of this
word within the market for games and other amusement devices.
The evidence also shows uses on generally consistent goods. The products
identified or shown in the third-party evidence are all types of games, toys or other
amusement devices. We find these uses are sufficiently similar to the goods identified
in the cited Registration to provide insights into actual consumers understanding of
the word “whirl” within the relevant market.30
29 See, e.g., id. at 34.
30 The cited Registration excludes “amusement park equipment.” Some of the third-party
evidence shows amusement park games or systems. While such goods are not within the
scope of the cited Registration, we find these types of games are sufficiently similar to the
goods identified in the cited Registration to shed light on how consumers understand uses of
the word “whirl” within the relevant market.

Serial No. 98418182
- 17 -
The three distinct products that all use or used the mark WHIRL WIN appear to
confirm Applicant’s point: the word “whirl” is used commonly and consistently within
this market, forcing consumers to find other means to distinguish between marks.
We cannot, however, take this point too far, because the evidence does not show that
the three WHIRL WIN products competed or were even on the market at the same
time. This evidence shows that three different parties selected and used the same
name for their products. This fact shows that the word “whirl” is understood within
this market to describe a rotating or spinning feature. This word is not a strong source
identifier.
But, as we noted at the outset, we can only go so far down this path. The cited
mark was registered without a showing of acquired distinctiveness, so we must treat
the mark as inherently distinctive. We find the cited mark WHIRLBALL is highly
suggestive for the goods, and thus relatively weak conceptually. The sixth DuPont
factor does not support the refusal.
D. Conclusion: Weighing the Factors
We have reviewed and evaluated all the evidence of record and all the arguments
presented. The first and second DuPont factors support the refusal because the marks
are similar and the goods overlap. These factors weigh heavily in this appeal, as they
do in most of our likelihood of confusion decisions. The cited WHIRLBALL mark,
however, is conceptually weak and there is evidence that the word “whirl” is widely-
used to connote a rotating or spinning feature of the goods. This fact reduces the
likelihood of confusion.

Serial No. 98418182
- 18 -
On balance, we find the first two DuPont factors outweigh the conceptual
weakness of the cited mark. The marks are similar and the goods are identical in
part. “When marks would appear on virtually identical goods or services, the degree
of similarity necessary to support a conclusion of likely confusion declines.” Century
21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992). While
the WHIRLBALL mark is highly suggestive, it is inherently distinctive and entitled
to protection. The Section 2(d) refusal is supported by the record.
Decision: The Section 2(d) refusal is affirmed.