Nowpay, LLC

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Oral Hearing: December 4, 2025 Mailed: December 17, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
____
In re Nowpay, LLC
_____
Serial No. 98073381
_____
Farah P. Bhatti of Buchalter, a Professional Corporation,
for Nowpay, LLC.
Brendan Smith, Trademark Examining Attorney, Law Office 108,
Kathryn E. Coward, Managing Attorney.
_____
Before Dunn, Elgin, and O’Connor,
Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
Nowpay, LLC (“Applicant”) seeks registration on the Principal Register of the
composite mark (“PAY” disclaimed) for the following services:
Payment processing services, namely, credit card and debit
card transaction processing services; Processing of credit
card payments; Charge card and credit card payment
processing services; Credit card payment processing
services; Electronic payment services involving electronic
processing and subsequent transmission of bill payment
data; Providing electronic processing of ACH and credit
card transactions and electronic payments via a global
computer network; Providing electronic processing of
electronic funds transfer, ACH, credit card, debit card,

Serial No. 98073381
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electronic check and electronic payments, in International
Class 36.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground of likelihood of
confusion with the standard character mark PAY NOW, registered on the Principal
Register, for the following services:
Credit card services; Credit card and debit card services;
Credit card payment processing services; Credit card
transaction processing services; Issuance of credit cards;
Credit card services including a feature that allows a card
owner to designate automatic payment of charges posted to
their credit card account based on purchase information
such as merchant category and purchase amount; Banking
services, in International Class 36.2
After the refusal was made final, Applicant appealed and requested
reconsideration, which was denied. The appeal resumed and is fully briefed.3
1 Ser. No. 98073381, filed on July 6, 2023. The mark is described as consisting of “the stylized
wording ‘NOW PAY.’ The term ‘NOW’ appears in dark blue on a white background followed by
the term ‘PAY’ in white in a light blue irregular rectangular background with rounded corners
at the bottom left and top right, and a cut-out at the bottom of the letter ‘Y.’” The application
was filed under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), but was amended prior to
initial examination to intent-to-use basis under Trademark Act Section 1(b), 15 U.S.C.
§ 1051(b). See Sept. 11, 2023 Preliminary Amendment at TSDR 2.
Citations to the prosecution record refer to the USPTO Trademark Status and Document
Retrieval system (TSDR) in the downloadable .pdf format by page number. References to the
briefs on appeal refer to the Board’s TTABVUE docket system. In re Integra Biosciences Corp.,
No. 87484450, 2022 TTAB LEXIS 17, at *6.
2 Reg. No. 5020574 issued on August 16, 2016; Combined Declaration of Use and
Incontestability under Trademark Act Sections 8 and 15, 15 U.S.C. §§ 1058 and 1065, filed
and accepted. A Combined Declaration of Use and Application for Renewal under Trademark
Act Sections 8 and 9, 15 U.S.C. §§ 1058 and 1059, was filed on November 28, 2025.
3 Applicant’s brief and reply brief are at 6 TTABVUE and 9 TTABVUE. The Examining
Attorney’s brief is at 8 TTABVUE.

Serial No. 98073381
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Applicant’s counsel and the Examining Attorney appeared at an oral hearing on
December 4, 2025.
For the reasons explained below, we affirm the Section 2(d) refusal to register.
I. Preliminary Evidentiary Matters
As a preliminary matter, Applicant referenced specimens in the files of the cited
registration and Registrant’s website vaguely in its brief and more forcefully at oral
argument.4 Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), clearly states that the
record should be complete before the filing of an appeal. See also In re Cnty. of Orange,
No. 87419378, 2022 TTAB LEXIS 280, at *32. The file of a registration cited against
an application is not automatically of record. Applicant did not make the specimens
or print outs of Registrant’s website of record during prosecution, or later seek
remand to supplement the record with any such materials, including Registrant’s
renewal specimens of use.
The Examining Attorney did not object to Applicant’s counsel’s argument about
specimens of Registrant’s actual use in its brief or at the oral hearing. But even if
Applicant had properly made Registrant’s specimens of record and we were to
examine them, they would not assist us. Because an applicant or registrant need only
file one specimen of use per class, Trademark Rule 2.56(a), 37 C.F.R. § 2.56(a), a
specimen is not a complete picture of how an applicant or registrant uses its mark for
all of the services in the class. Nor, as we explain further below, can we read
4 See 6 TTABVUE 16.

Serial No. 98073381
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limitations into the identification of services in the cited registration based on
evidence of actual use.
In sum, we have not considered Applicant’s arguments about Registrant’s
specimens as they are not properly of record, but add that even if they were, they
would not affect our decision herein.
II. Likelihood of Confusion
“The Trademark Act prohibits registration of a mark that ‘so resembles a
registered mark as to be likely, when used on or in connection with the goods or
services of the applicant, to cause confusion, mistake, or to deceive.’” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (quoting Section 2(d)). Our
determination of the likelihood of confusion under Section 2(d) of the Trademark Act
is based on an analysis of all probative facts in the record that are relevant to the
likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co.,
476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”); see also Charger Ventures, 64 F.4th at
1379. “Not all DuPont factors are relevant in each case, and the weight afforded to
each factor depends on the circumstances.” Stratus Networks, Inc. v. UBTA-UBET
Commc’ns Inc., 955 F.3d 994, 988 (Fed. Cir. 2020) (citation omitted).
We consider each DuPont factor for which there is evidence and argument. See,
e.g., In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019). “In any likelihood
of confusion analysis, two key considerations are the similarities between the marks
and the similarities between the services.” Monster Energy Co. v. Lo, No. 91225050,
2023 TTAB LEXIS 14, at *18 (citing Federated Foods, Inc. v. Ft. Howard Paper Co.,

Serial No. 98073381
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544 F.2d 1098, 1103 (CCPA 1976)). Applicant argued that the factors relating to
similarities or dissimilarities of the marks, services, and channels of trade (Factors
1, 2, and 3); sophistication of consumers (Factor 4); and weakness of the cited mark
(Factor 6) support its position that confusion is not likely.
A. Similarity or Dissimilarity of the Marks
Turning to the first DuPont factor, we compare Applicant’s mark
and the cited standard character mark PAY NOW “in their
entireties as to appearance, sound, connotation and commercial impression.” Palm
Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
1371 (Fed. Cir. 2005) (quoting 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).
We do not assess whether the marks can be distinguished in a side-by-side
comparison, but rather whether their overall commercial impressions are similar
enough that confusion as to the source of the goods and services offered under the
respective marks is likely to result. Coach Servs. v. Triumph Learning LLC, 668 F.3d
1356, 1368 (Fed. Cir. 2012); see also Edom Labs. Inc. v. Lichter, No. 91193427, 2012
TTAB LEXIS 81, at *15. The focus is on the recollection of the average purchaser,
who normally retains a general, rather than specific, impression of trademarks. See
Inter IKEA Sys. B.V. v. Akea, LLC, No. 91196527, 2014 TTAB LEXIS 166, at *17;
Sealed Air Corp. v. Scott Paper Co., 1975 TTAB LEXIS 236, at *6 (no number in

Serial No. 98073381
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original). Additionally, when, as we discuss below,5 “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).
The cited mark is PAY NOW in standard characters. Registrant, therefore, is
entitled to all depictions of its mark regardless of the font style, size, or color;
Registrant could at any time display its mark in a manner similar to the wording in
Applicant’s mark. In re Viterra Inc., 671 F.3d 1358, 1363-65 (Fed. Cir. 2012);
Citigroup Inc. v. Cap. City Bank Grp., 637 F.3d 1344, 1353 (Fed. Cir. 2011).
Applicant’s composite mark is comprised of the stylized wording
NOW PAY within a roughly rectangular design of white and light blue. Applicant
argued the transposition of the terms PAY and NOW in its mark and the design
element distinguish the marks, and this single DuPont factor is dispositive of the
likelihood of confusion analysis.6
Applicant’s mark and the cited mark include the same words PAY and NOW, but
in transposed positions. Applicant argued that NOW PAY presents a different
commercial impression than the registered mark PAY NOW due to this transposition
and the services at issue. The latter argument was largely based on differences in
5 See infra Section II(B).
6 6 TTABVUE 10.

Serial No. 98073381
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actual usage and limitations read from one part of the identification in the cited
registration to the others, which we do not consider, as discussed below.7
As to the reversal of NOW and PAY, when confronted with marks having
transposed elements, we are concerned with whether the transposition creates
different meanings and commercial impressions. See Made in Nature, LLC v.
Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 228, at *46 (NATURE MADE
confusingly similar to MADE IN NATURE). The literal elements of both marks —
PAY NOW and NOW PAY — refer to a rapid payment processing solution.8 In the
absence of any contrary evidence, the transposition of the words does not alter that
meaning. In short, there is no reason to conclude that consumers will understand
NOW PAY differently from PAY NOW in the context of (as we find below) the
identical and legally identical services offered under each mark.
In cases like this one — that is, where we find no different meaning — the Board
has found marks with transposed elements to be similar. See, e.g., Bank of Am. Nat’l
Trust and Sav. Ass’n v. Am. Nat’l Bank of St. Joseph, 1978 TTAB LEXIS 149, at
*11 (no number in original) (“the words ‘BANKAMERICA’ and ‘BANK OF
AMERICA’, on the one hand, and ‘AMERIBANC’, on the other, convey the same
meaning and create substantially similar commercial impressions”); In re Wine Soc’y
of Am. Inc., No. 662515, 1989 TTAB LEXIS 29, at *10 (affirming refusal to register
THE WINE SOCIETY OF AMERICA & Design based on registration of AMERICAN
7 See infra Section II(B).
8 See Feb. 4, 2025 Request for Reconsideration at TSDR 22 (“NowPay payment processing
can give your business quick, secure, and flexible payment solutions.”).

Serial No. 98073381
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WINE SOCIETY 1967 & Design, finding that “the transposition of words does not
change the overall commercial impression”); In re Nationwide Indus., Inc., No.
492987, 1988 TTAB LEXIS 19, at *4 (RUST BUSTER for rust-penetrating spray
lubricant and BUST RUST, in reverse, for penetrating oil, create substantially
similar commercial impressions and are confusingly similar). That is the case here.
We also find Applicant’s mark and the cited mark are similar in appearance and
sound by virtue of the identical literal elements. The transposition of the terms
creates a difference, both in appearance and in the sound of the marks. The focus,
however, is on the recollection of the average purchaser, who normally retains a
general rather than specific impression of trademarks. See Inter IKEA Sys. B.V. v.
Akea, LLC, No. 91196527, 2014 TTAB LEXIS 166, at *17; Sealed Air, 1975 TTAB
LEXIS 236, at *6. For that reason, consumers are likely to mistakenly believe NOW
PAY is the same as PAY NOW, especially as used on the same services.
Applicant cited to In re Comput. Commc’ns, Inc., 484 F.2d 1392 (CCPA 1973); In
re White Rock Distilleries, Inc., No. 77093221, 2009 TTAB LEXIS 601; In re
Covalinski, No. 85685983, 2014 TTAB LEXIS 353; Parfums de Coeur Ltd. v. Lazarus,
No. 91161331, 2007 TTAB LEXIS 36; and Steve’s Ice Cream v. Steve’s Famous Hot
Dogs, No. 91070603, 1987 TTAB LEXIS 53, to support its argument that the design
in its mark is “highly stylized” and “the more dominant portion” of the applied-for
mark.9 We disagree.
9 6 TTABVUE 12.

Serial No. 98073381
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The dominant portion of Applicant’s mark is the literal portion, NOW PAY.
Generally, the literal portions of a word and design mark are the dominant and most
significant features of marks because consumers will call for the goods or services in
the marketplace by that portion. See CBS Inc. v. Morrow, 708 F.2d 1579, 1581-82
(Fed. Cir. 1983); see also Viterra, 671 F.3d at 1366 (“This makes sense [that the literal
portion is more dominant than the design portion] given that the literal component
of brand names likely will appear alone when used in text and will be spoken when
requested by consumers.”
This is especially the case here, where the design element merely is a blue roughly
rectangular carrier design. In re Dixie Rests., Inc., 105 F.3d 1405, 1407 (Fed. Cir.
1997) (“Neither the design element nor the generic term ‘café’ offers sufficient
distinctiveness to create a different commercial impression. Indeed, as the board
found, the design is an ordinary geometric shape that serves as a background for the
word mark.”); cf. In re Serial Podcast, LLC, No. 86454420, 2018 TTAB LEXIS 94, at
*37 (“Most common geometric shapes, such as circles, squares, triangles, ovals, and
rectangles, when used as backgrounds for the display of word marks, are not
considered inherently distinctive, and have difficulty acquiring distinctiveness.”).
By way of illustration, the involved mark in Covalinski included design features
that played a much more prominent role than those of Applicant’s mark:

Serial No. 98073381
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The Board, in finding the design to be the dominant element, provided the
following rationale:
Here, Applicant’s design mark includes the very large,
prominently displayed letters RR. The bodies of the Rs are
filled with a checkerboard pattern resembling a racing flag.
To each R an elongated horizontal “leg” of gradually
increasing thickness is appended, each of which ends in a
heart design. Inside the legs appear the rest of the letters
(i.e., the letter strings “edneck” and “acegirl”), in a form in
which the initial letters of each string are displayed in
relatively tiny typeface and subsequent letters are
displayed in increasing thickness. Together, these graphic
devices serve not only to draw attention to the RR letters
apart from the wording, but also make the letters that form
the “a-c-e” of the word “RACEGIRL” difficult to notice.
Since these goods are clothing, consumers would be likely
to encounter the mark in a retail setting on hang tags or
neck labels. In that context, the visual impression of the
mark is likely to be more important.
Covalinski, 2014 TTAB LEXIS 353, at *6-7.
None of these reasons are present in this case. The literal portions of Applicant’s
mark do not appear in “relatively tiny typeface” in a letter string “difficult to notice.”
To the contrary, the font is large, bold, easy-to-read lettering. In the other cases cited
by Applicant, the design was among the largest and most prominent elements in the
marks and very noticeable, and in several cases reinforced the meaning of the literal
elements.10 See White Rock, 2009 TTAB LEXIS 601 (TERZA and design dominant
10 Applicant did not show or describe the mark in Comput. Commc’ns, 484 F.2d 1392, or
explain why its applied-for mark is similar. Applicant also cited a nonprecedential case, In re
Primeway Intl LLC, No. 87059786, 2019 TTAB LEXIS 167, involving a composite mark. In
that case, the shared term INGOGNITO was much smaller than the more prominent wolf
design and letters “STS.”

Serial No. 98073381
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over VOLTA in composite mark for wines); Parfums de Coeur, 2007 TTAB
LEXIS 36 (BODYMAN not the dominant portion of composite mark for
an animated television series); Steve’s Ice Cream, 1987 TTAB LEXIS 53 (STEVE’S
distinguishable from composite mark for restaurants featuring hot dogs).
That is not the case in Applicant’s mark, where the literal portions NOW and PAY
are clear and apparently not associated with any meaning of the design element,
which functions as a carrier, or mere background design.
We conclude that and PAY NOW are highly similar in sight,
sound, meaning, and overall commercial impression. This is true especially because
the marks are used with identical and legally identical in part services, and even
considering the weakness of the cited mark, all of which we discuss below.11
The first DuPont factor weighs in favor of likelihood of confusion.
11 See infra Sections II(B) and (D).

Serial No. 98073381
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B. Similarity or Dissimilarity of the Services and Channels of Trade
The second and third DuPont factors concern the relatedness of the services and
channels of trade. In analyzing these factors, we look to the identifications in the
application and cited registration. See In re Detroit Athletic Co., 903 F.3d 1297, 1306 (Fed.
Cir. 2018). Registration may be refused if Applicant’s mark for any of its identified
services in the class is likely to cause confusion with Registrant’s mark for any of the
services listed in the cited registration. Major League Baseball Players Ass’n v.
Chisena, No. 91240180, 2023 TTAB LEXIS 117, at *63-64 (“It is sufficient for a
finding on likelihood of confusion that relatedness is established for any item
encompassed by the identification of goods in the application.”) (citing DeVivo v.
Ortiz, No. 91242863, 2020 TTAB LEXIS 15, at *36-37).
The services in the cited registration include the broadly described “Credit card
payment processing services.” Applicant’s services include “Payment processing
services, namely, credit card and debit card transaction processing services;
Processing of credit card payments; Charge card and credit card payment processing
services; Credit card payment processing services,” all of which are variations of the
registered “credit card payment processing” services. Where the identification of
services is broad, the Board “presume[s] that the services encompass all services of
the type identified.” In re Country Oven, Inc., No. 87354443, 2019 TTAB LEXIS 381,
at *4 (citing Sw. Mgmt., Inc. v. Ocinomled, Ltd., No. 94002242, 2015 TTAB LEXIS
176, at *60-61). Registrant’s and Applicant’s services are identical in fact as to “credit

Serial No. 98073381
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card payment processing services.” The second DuPont factor weighs in favor of
likelihood of confusion.
As to these identical and legally identical services, we presume the channels of
trade and classes of consumers will be the same. Viterra, 671 F.3d at 1362 (even
though there was no evidence regarding channels of trade and classes of consumers,
the Board was entitled to rely on this legal presumption in determining likelihood of
confusion); see also Genesco Inc. v. Martz, No. 91121296, 2003 TTAB LEXIS 123, at
*28 (“Given the in-part identical and in-part related nature of the parties’ goods, and
the lack of any restrictions in the identifications thereof as to trade channels and
purchasers, these clothing items could be offered and sold to the same classes of
purchasers through the same channels of trade.”). The third DuPont factor also
weighs in favor of likelihood of confusion.
Despite the identical and legally identical services listed in the identifications,
Applicant argued that its services and channels of trade and Registrant’s services
and channels of trade are distinguishable. Pointing to a printout of its own website
(made of record), Applicant contended that it directs its services to businesses.12
Although Applicant also argued that Registrant directs its services to consumers,13
there is no evidence in the record as to the purchasers of Registrant’s services.14
12 6 TTABVUE 7, 9, 15-16, 18; 9 TTABVUE 8-9. See Feb. 4, 2025 Request for Reconsideration,
at TSDR 22 (Applicant’s website).
13 6 TTAVUE 9, 15-17, 18; 9 TTABVUE 8.
14 See supra Section I.

Serial No. 98073381
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Attorney argument is not evidence. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371
(Fed. Cir. 2018).
The broad identifications of the services in the application and cited registration
we discussed above are unlimited, and we may not narrow them based on real-world
conditions. See In re i.am.symbolic, llc, 866 F.3d 1315, 1325 (Fed. Cir. 2017) (“In
reviewing the second factor, ‘we consider the applicant’s goods as set forth in its
application, and the [registrant’s] goods as set forth in its registration.’”) (quoting M2
Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 1382 (Fed. Cir. 2006)).
Applicant also argued in its brief and at oral argument that “Registrant’s services
are specifically limited to customer usage of a mechanism to allow payment of a credit
card through a customer’s bank account.”15 We presume this references a portion of
Registrant’s identified services, in bold below:
Credit card services; Credit card and debit card services;
Credit card payment processing services; Credit card
transaction processing services; Issuance of credit cards;
Credit card services including a feature that allows
a card owner to designate automatic payment of
charges posted to their credit card account based on
purchase information such as merchant category
and purchase amount; Banking services,
Under standard examination practice, a semicolon is used to separate distinct
categories of goods or services. In re Midwest Gaming & Entm’t LLC, No. 85111552,
2013 TTAB LEXIS 55, at *9. Here, the broader “Credit card payment processing
services” in the cited registration are not connected to, nor dependent on, the services
15 6 TTABVUE 16.

Serial No. 98073381
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set out between the semicolons. We may not read a limitation from one part of
Registrant’s identification which is separated by semicolons into another. That is, a
specific limit in one part of the services does not limit more broadly described services.
We conclude that the second DuPont factor weighs in favor of likelihood of confusion.
As to the third factor, the registered “Credit card payment processing services”
presumptively move in all normal trade channels to all typical classes of consumers,
including businesses who use credit card payment processing services. See, e.g.,
Detroit Athletic, 903 F.3d at 1308 (“[T]he registration does not set forth any
restrictions on use and therefore cannot be narrowed by testimony that the
applicant’s use is, in fact, restricted to a particular class of purchasers”) (citation
omitted); In re I-Coat Co., LLC, No. 86802467, 2018 TTAB LEXIS 171, at *30 (“We
have no authority to read any restrictions or limitations into the registrant[s’]
description[s] of goods.”) (quoting In re Thor Tech. Inc., No. 78634024, 2009 TTAB
LEXIS 253, at *15). “Indeed, the owner of an unrestricted registration is entitled to
change its current trade channels at any time.” Detroit Athletic, 903 F.3d at 1308
(citation omitted); see also San Fernando Elec. Mfg. Co. v. JFD Elecs. Components
Corp., 565 F.2d 683, 685 (CCPA 1977) (“Opposer’s rights are not tied to its current
business practices, which may change at any time. Its rights are as broad as its
registration for ‘capacitors’.”).
We conclude that the third DuPont factor also weighs in favor of likelihood of
confusion.

Serial No. 98073381
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C. Sophistication of Consumers
The fourth DuPont factor concerns “[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. Purchaser sophistication or degree of care may tend to minimize
likelihood of confusion. Conversely, impulse purchases of inexpensive items may tend
to have the opposite effect. Palm Bay Imps., 396 F.3d at 1376. We must make our
determination based on the least sophisticated consumer. Stone Lion Cap. Partners,
L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014).
Applicant argued that its services “are very specific and are marketed towards
sophisticated purchasers, namely businesses, who are seeking to fulfill a very specific
need.”16 But as we discussed above, the identifications are not limited by class of
consumer and could be marketed to businesses or individuals.17 And even if the
consumers were limited to businesses, not all businesses are sophisticated
purchasers. Businesses may include sole proprietors and “mom and pop” type
business owners. In other words, the classes of purchasers of both Applicant’s and
Registrant’s services may include persons who are not sophisticated.
In addition, Applicant asserted, without evidence, that “[t]he services that are
offered by Applicant are relatively expensive and are typically only marketed to those
who run a business and are utilized by such business after researching the field and
16 6 TTABVUE 17.
17 See supra Section II(B).

Serial No. 98073381
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looking at the services offered with great scrutiny.”18 Again, attorney argument is not
evidence. Cai, 901 F.3d at 1371.
The fourth DuPont factor is neutral.
D. Strength of the Cited Mark
We also consider Applicant’s argument under the sixth DuPont factor that “the
wording PAY and NOW in the Cited Mark are weak as they are common [sic] used
by several other entities in the market and because the terms have been registered
by multiple parties concurrently.”19 Applicant argued that its mark “should be
allowed to coexist with other registered marks which feature the same or similar
wording.”20
In support of its arguments, Applicant submitted fourteen registrations, owned by
eleven third-parties, for “PAY” and “NOW” formative marks:21
• NOW (Reg. No. 5115039) for “Electronic funds transfer services; financial
payment network services, namely, providing bill payment services;
providing electronic processing of electronic funds transfer and electronic
payments via a global computer network; electronic payment services
involving electronic processing and subsequent transmission of bill
payment data using operating and governance rules to determine
18 Id.
19 See 6 TTABVUE 14; see also 9 TTABVUE 5-7
20 Id.
21 July 3, 2024 Response to Office Action, at TSDR 13-21; Feb. 4, 2025 Request for
Reconsideration, at TSDR 14-17, 19-22. Applicant described its evidence as “sixteen (16)
registrations and approved applications,” 9 TTABVUE 5. We count only fourteen
registrations. Applicant also submitted evidence of one pending application for the mark
JUST PAY NOW, Ser. No. 97419158, which its counsel mis-identified as a “registration”
during oral hearing. See Feb. 4, 2025 Request for Reconsideration, at TSDR 18. Applications
are proof only that they were filed on a certain date. Nike Inc. v. WNBA Enters. LLC, No.
91160755 , 2007 TTAB LEXIS 39, at *12 n.8 (TTAB 2007). In any event, Office records now
show that this application was abandoned, and thus we give it no consideration.

Serial No. 98073381
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transaction routing options, notifications, alerts, delivery timeframes and
exception handling procedures; providing financial risk management
services for electronic funds transfer, credit and debit card and electronic
check transactions via a global computer network; financial transaction
services, namely, providing secure commercial transactions and payment
options; electronic processing of claims and payment data in the field of
insurance and health care, including enrollment data” in International
Class 36;
• DO MORE. STARTING NOW. (Reg. No. 6889293) for, inter alia, “Electronic
processing of insurance claims and payment data; Payment processing
services in the field of insurance payments; Providing information
regarding policy rates for all types of insurance and electronic processing of
insurance claims and payment data over a web based computer network”
in International Class 36;
• FED NOW (Reg. No. 7068790) and (Reg. No. 7057187)
(“24/7 INSTANT PAYMENTS” disclaimed) both for “Facilitating interbank
settlement of payments, namely, settlement of interbank obligations for
third party banks; Facilitating electronic transfer of funds among financial
institutions” in International Class 36;
• SEND NOW PAY LATER (Supplemental Reg. No. 6998290) for “Financial
services, namely, electronic funds transfer services, money transfer
services, electronic payment services involving electronic processing and
subsequent transmission of bill payment data; domestic and international
transmission of money in the nature of money wiring services and cash and
foreign exchange transactions” in International Class 36;
• CARENOW (Reg. No. 6139227) for, inter alia, “financial services, namely,
providing patient billing payment and discount bill payment services for
medical care” in International Class 36;
• NOW REWARDS (Reg. No. 5924143) and (Reg. No. 5924149)
both for “Arranging and conducting incentive reward programs to promote
the sale of credit cards; Promoting the sale of credit card accounts through
the administration of incentive award programs” in International Class 35;
and “Issuing credit cards; Payment processing services, namely, credit card
and debit card transaction processing services; Providing cash and other
rebates for credit card use as part of a customer loyalty program” in
International Class 36;

Serial No. 98073381
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• SHOPNOW PAY PLAN (“PAY PLAN” disclaimed) (Reg. No. 5131545) for
“financial services, namely, an installment plan for goods and services
purchased by services such as direct response, mail order or electronic
catalog ordering services …, and providing financing and credit services for
consumer membership plans” in International Class 36;
• PAYMENOW (Reg. No. 6037336) for “Providing electronic processing of
electronic funds transfer, credit card, debit card, electronic check and
electronic payments; financial services, namely, electronic funds transfer;
clearing and reconciling financial transactions; providing a wide variety of
payment and financial services, namely, credit card services, issuing credit
cards and lines of credit, electronic payment services involving electronic
processing and subsequent transmission of bill payment data, and bill
payment services with guaranteed payment delivery, all conducted via a
global communications network; credit card and debit card transaction
processing services; credit card transaction processing services; credit
services, namely, providing revolving lines of credit; bill payment services;
providing mobile electronic processing of electronic payments” in
International Class 36;
• KNOWPAY (Reg. No. 6772360) for “Merchant services, namely, payment
transaction processing services involving cash discount and surcharge
programs” in International Class 36;
• IMPORT NOW, PAY LATER (Supplemental Reg. No. 6610011) for
“financial services, namely, financing of imported goods” in International
Class 36; and
• ACCESS NOW PAY LATER (Reg. No. 7157612) and USE NOW PAY
LATER (Reg. No. 7157613) for, inter alia, “Finance services, namely,
financing services being payment services, settlement services, invoicing
services; electronic transfer of funds; financial affairs, namely, financial
management services being payment management services; monetary
affairs, namely, monetary management services; electronic commerce
payment services, namely, establishing accounts used to purchase goods
and services over electronic communications networks; credit card and cash
card services, namely, credit card and cash card payment processing
services; processing of debit card payments” in International Class 36.

Serial No. 98073381
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The fifth22 and sixth DuPont factors consider the strength of the cited registered
mark, and the extent to which that strength may be attenuated by “[t]he number and
nature of similar marks in use on similar goods.” DuPont, 476 F.2d at 136. “A mark’s
strength is measured both by its conceptual strength … and its marketplace
strength....” In re Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010).
For likelihood of confusion purposes, “the strength of a mark is not a binary factor,
but varies along a spectrum from very strong to very weak.” In re Coors Brewing Co.,
343 F.3d 1340, 1345 (Fed. Cir. 2003). “The weaker [the registrant’s] mark, the closer
an applicant’s mark can come without causing a likelihood of confusion and thereby
invading what amounts to its comparatively narrower range of protection.” Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1338 (Fed. Cir. 2015) (internal
citations omitted).
At the outset, we note that Applicant’s third-party registration evidence goes only
to the conceptual strength of Registrant’s cited mark. That is, “[u]se evidence may
reflect commercial weakness, while third-party registration evidence that does not
equate to proof of third-party use may bear on conceptual weakness if a term is
commonly registered for similar goods or services.” Tao Licensing, LLC v. Bender
Consulting Ltd., No. 92057132, 2017 TTAB LEXIS 437, at *47 (citation omitted); see
also In re Guild Mortg. Co., No. 86709944, 2020 TTAB LEXIS 17, at *9 (“[E]vidence
22 The fifth DuPont factor considering the “fame” of the cited mark generally is considered
neutral in ex parte appeals because the owner of the cited mark is not a party to the appeal,
and the Examining Attorney is under no obligation to demonstrate the fame of a cited mark.
In re Integrated Embedded, No. 86140341, 2016 TTAB LEXIS 470, at *26. Therefore, we
consider the fifth factor to be neutral.

Serial No. 98073381
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of third-party registrations is relevant to ‘show the sense in which . . . a mark is used
in ordinary parlance.’”) (quoting Juice Generation, 794 F.3d at 1339). “Specifically,
third-party registrations containing an element that is common to both the
[Registrant’s] and [Applicant’s] marks can show that that element has a normally
understood and well-recognized descriptive or suggestive meaning.” Spireon, Inc. v.
Flex LTD, 71 F.4th 1355, 1363 (Fed. Cir. 2023) (citations omitted).
Because the cited PAY NOW registration issued on the Principal Register without
a claim of acquired distinctiveness and without a disclaimer, we must presume that
it is inherently distinctive as a whole — that is, at least suggestive. See Trademark
Act Section 7(b), 15 U.S.C. § 1057(b) (registered mark entitled to presumption of
validity); Tea Bd. of India v. Republic of Tea, Inc., No. 91118587, 2006 TTAB LEXIS
330, at *62 (a “mark that is registered on the Principal Register is entitled to all
Section 7(b) presumptions including the presumption that the mark is distinctive and
moreover, in the absence of a Section 2(f) claim in the registration, that the mark is
inherently distinctive for the goods”). In addition, we could not entertain an assertion
of non-distinctiveness of the registered mark in the absence of a cancellation petition.
Charger Ventures, 64 F.4th at 1383 (“[A]n ex parte proceeding is not the proper forum
for a trademark applicant to launch an attack on a registered mark . . . .”) (citation
omitted; cleaned up).
We can, however, entertain an assertion of weakness of the cited mark (or
components thereof) based on similar third-party registered marks for similar
services. See, e.g., Tao Licensing, 2017 TTAB LEXIS 437, at *51 (third-party

Serial No. 98073381
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registrations in unrelated fields “have no bearing on the strength of the term in the
context relevant to this case”); see also Apex Bank v. CC Serve Corp., 156 F.4th 1230,
2025 U.S. App. LEXIS 24802, at *8 (“When the Board has already made a factual
finding that the services are highly similar — in fact, partially legally identical — in
its analysis of the second DuPont factor … the Board should retain the same scope in
its consideration of similarity under the other factors.”). Here, the Examining
Attorney addressed only seven of the fourteen third-party registrations,
distinguishing each based on the commercial impression of the marks.23 For
completeness, we address all of the registrations.
The fourteen third party registrations are in the financial and banking fields,
broadly speaking. Registrant’s registration includes various credit card services and
the broader “banking services,” which might be related to credit card and other
electronic funds processing. Thus, the fourteen registrations are not so far afield of
Registrant’s services that they are not probative of weakness based on the
identifications of services.
Next, we consider whether the third party registered marks show that one or both
of the shared segment(s) of the cited mark PAY NOW have “a normally understood
and well-recognized descriptive or suggestive meaning, leading to the conclusion that
that segment is relatively weak,” or that the USPTO, “by registering several marks
23 8 TTABVUE 5-6 (addressing registrations for SEND NOW PAY LATER; SHOPNOW PAY
PLAN; PAYMENOW; KNOWPAY; IMPORT NOW, PAY LATER; ACCESS NOW, PAY
LATER; and USE NOW PAY LATER). We note that the Examining Attorney’s analysis of
the registrations as probative of “commercial” weakness of the cited mark, id. at 5, is
misplaced for the reasons we discussed above.

Serial No. 98073381
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with such a common segment, recognizes that portions of such composite marks other
than the common segment are sufficient to distinguish the marks as a whole and to
make confusion unlikely.” 2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND
UNFAIR COMPETITION § 11:90 (5th ed. 2025), cited in Spireon, 71 F.4th at 1364; see
also Juice Generation, 794 F.3d at 1339 (third party registrations may indicate that
term carries a suggestive or descriptive connotation in the relevant industry and is
weak for that reason).
Of the fourteen marks, none include the exact cited mark PAY NOW but,
nonetheless, we consider whether the registrations reflect weakness of the terms PAY
and NOW and the composite thereof. Seven include both terms in the cited mark
(“pay” and “now”), of which two are on the Supplemental Register indicating that the
marks are merely descriptive:24 SEND NOW PAY LATER (Supplemental
registration); ; SHOPNOW PAY PLAN (“PAY PLAN”
disclaimed); PAYMENOW; IMPORT NOW, PAY LATER (Supplemental
registration); ACCESS NOW PAY LATER; and USE NOW PAY LATER. Six
registrations include only the term “now”: NOW; FED NOW; DO MORE. STARTING
NOW; CARENOW; NOW REWARDS; . One registration includes only
the term “pay”: KNOWPAY.25
24 A registration on the Supplemental Register is a concession by the registrant that the mark
is merely descriptive. In re Rosemount Inc., No. 78180535, 2008 TTAB LEXIS 10, at *11.
25 Although the letter string in this mark includes NOW, the commercial impression of this
mark is “know pay,” not “now pay.”

Serial No. 98073381
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The above registrations indicate in the manner of dictionaries that PAY NOW
suggests a service that enables consumers to pay money immediately. We conclude
that the cited mark is highly suggestive and therefore conceptually on the weaker
end of the scale for an inherently distinctive mark. There is no evidence of record,
however, to indicate that the mark is commercially weak. On balance, the sixth
DuPont factor tilts somewhat against likelihood of confusion.
E. Weighing of the DuPont Factors
We have considered and weighed all of the evidence made of record, and the
arguments related thereto, carefully. See Charger Ventures, 64 F.4th at 1384 (“[I]t is
important … that the Board itself weigh the DuPont factors used in its analysis and
explain the results of that weighing.”) (emphasis in original).
We find that: (1) the marks PAY NOW in standard characters and
are highly similar in appearance, sound, connotation, and overall
commercial impression; (2) Applicant’s services are both identical and legally
identical in part to Registrant’s services; and (3) the parties’ respective services travel
in overlapping trade channels and are offered to overlapping classes of consumers.
Thus, the first, second, and third DuPont factors weigh heavily in favor of likelihood
of confusion. The sixth DuPont factor weighs only somewhat against likelihood of
confusion. The remaining DuPont factors are neutral.
On balance, we conclude that Applicant’s mark for the
identified services so resembles the cited mark PAY NOW in standard characters for

Serial No. 98073381
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the services in the cited registration as to be likely to cause confusion or mistake or
to deceive under Section 2(d) of the Trademark Act.
Decision
The refusal to register application Ser. No. 98073381 under Trademark Act
Section 2(d) is affirmed.