Catch & Shoot, LLC

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: March 17, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Catch & Shoot, LLC
_____
Serial No. 98888426
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Jason Paul Blair of Neal & McDevitt, LLC,
for Catch & Shoot, LLC
Jonah R. Berthelsen, Trademark Examining Attorney, Law Office 135,
Kathy Wang, Managing Attorney.
_____
Before Lykos, Goodman, and Elgin, Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
Applicant Catch & Shoot, LLC seeks registration on the Principal Register of the
mark JAPANESE COWBOY (“JAPANESE” disclaimed), in standard characters, for
“Restaurant and bar services” in International Class 43.1
The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used in
connection with the identified services, so resembles the registered mark TOKYO
1 Ser. No. 98888426 was filed on Dec. 6, 2024 under Trademark Act Section 1(b), 15 U.S.C.
§ 1051(b), based on Applicant’s allegation of a bona fide intent to use the mark in commerce.

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COWBOY for “bar services; restaurant services” in International Class 432 that it is
likely to cause confusion, to cause mistake, or to deceive.
The appeal is now briefed. Although we have reviewed and considered all of the
arguments in the briefs and evidence of record, we do not address them all in this
opinion.
For the reasons set forth below, we affirm the refusal to register.
I. Likelihood of Confusion
Section 2(d) of 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 deception. 15 U.S.C.
§ 1052(d); see also In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023).
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”); see also In re Majestic Distilling
Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). When analyzing the likelihood of confusion
factors, the overriding concerns are not only to prevent buyer confusion as to the
source of the goods or services, but also to protect registrants from adverse
commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil
Co., 992 F.2d 1204, 1207-08 (Fed. Cir. 1993).
In any likelihood of confusion analysis, different DuPont factors may play a
dominant role and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
2 Reg. No. 7276328 issued on the Principal Register on Jan. 16, 2024.

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92 F.4th 1113, 1116 (Fed. Cir. 2024) (citing Tiger Lily Ventures Ltd. v. Barclays Cap.
Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be
assigned to each factor depending on the evidence presented, and “any one of the
factors may control a particular case.” Id.; see also Charger Ventures, 64 F.4th at 1381.
Although we consider each DuPont factor for which there is evidence and argument,
In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019), two key considerations
are the similarities between the marks and the similarities between the goods or
services. 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)).
Below, we first consider the similarity of the services and channels of trade;
followed by the strength of the mark; and finally, the similarity of the marks.
A. The Services and Trade Channels
We start with the second DuPont factor, which “considers the similarity or
dissimilarity and nature of the [services] as described in the involved application and
cited registration … and contemplates whether the consuming public may perceive
the respective [services] as related enough to cause confusion about their source or
origin.” In re Samsung Display Co., No. 90502617, 2024 TTAB LEXIS 258, at
*6 (cleaned up; citations omitted).
“We begin with the identifications of … services in the registration and application
under consideration.” In re OSF Healthcare Sys., No. 88706809, 2023 TTAB LEXIS
353, at *10 (cleaned up; citation omitted). Applicant’s services are “restaurant and

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bar services” and the services in the cited registration are “bar services; restaurant
services.” There is no question that the services are identical.
We next turn to the third DuPont factor, which considers the “similarity or
dissimilarity of established, likely-to-continue trade channels.” Samsung Display,
2024 TTAB LEXIS 258, at *17 (quoting DuPont, 476 F.2d at 1361). Because the
services are identical, we must presume that they travel through the same channels
of trade and are offered to the same or overlapping classes of purchasers. Cai v.
Diamond Hong, Inc., 901 F.3d 1367, 1372 (Fed. Cir. 2018) (quoting In re Viterra Inc.,
671 F.3d 1358, 1362 (Fed. Cir. 2012)).
Moreover, Applicant does not dispute that the services and trade channels are
identical.3 We conclude that the second and third DuPont factors favor a finding of
likelihood of confusion.
B. Strength of the Cited Mark
Before comparing the marks, we turn to Applicant’s main argument concerning
the strength of the cited mark because it affects the scope of the mark’s protection.
“Two of the DuPont factors (the fifth and sixth) consider strength.” Spireon, Inc. v.
Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023).4 The sixth DuPont factor “is a measure
3 See generally 4 TTABVUE.
4 “The fifth DuPont factor, ‘[t]he fame of the prior mark (sales, advertising, length of use)’ ...
is a measure of the mark’s strength in the marketplace.” Spireon, 71 F.4th at 1362 (quoting
DuPont, 476 F.2d at 1361, and citing Joseph Phelps Vineyards, LLC v. Fairmont Holdings,
LLC, 857 F.3d 1323, 1325 (Fed. Cir. 2017)). The fifth factor normally is treated as neutral in
an ex parte appeal because the record generally includes no evidence as to fame, particularly
because the owner of the cited registration is not a party to the proceeding and therefore
cannot introduce evidence regarding its use of the cited mark. See In re Thomas, No.

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of the extent to which other marks weaken the assessed mark.” Id.; see also DuPont,
476 F.2d at 1361 (“[t]he number and nature of similar marks in use on similar
[services]”).
As the Federal Circuit has explained, “[t]here are two prongs of analysis for a
mark’s strength under the sixth factor: conceptual strength and commercial
strength.” Spireon, 71 F.4th at 1362 (citation omitted). “Conceptual strength is a
measure of a mark’s distinctiveness … and distinctiveness is often classified in
categories of generally increasing distinctiveness[:]… (1) generic; (2) descriptive; (3)
suggestive; (4) arbitrary; or (5) fanciful.” Id. (internal citation omitted).
“Distinctiveness is relevant to a mark’s overall strength in the likelihood of confusion
analysis.” Id. (citation omitted). “Commercial strength, on the other hand, is ‘the
marketplace recognition value of the mark.’” Id. at 1363 (quoting 2 J. Thomas
McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:80 (5th ed.
2023)).
In terms of conceptual strength, we point out that, “[b]ecause [the cited] mark is
registered on the Principal Register, with no claim of acquired distinctiveness under
Section 2(f), we presume it is inherently distinctive, i.e., that it is at worst suggestive
of the [services].” See Heil Co. v. Tripleye GmbH, No. 91277359, 2024 TTAB LEXIS
494, at *18 (citing 15 U.S.C. § 1057(b)). Nevertheless, Applicant may show that the
78334625, 2006 TTAB LEXIS 135, at *18 n.11 (“It appears that applicant contends that the
absence of evidence of fame of the registrant’s mark should be treated as a factor in
applicant’s favor. Because this is an ex parte proceeding, we would not expect the examining
attorney to submit evidence of fame of the cited mark.”).

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existence of third-party registrations on similar services diminish the cited mark’s
conceptual strength. See Spireon, 71 F.4th at 1363 (citing Juice Generation, Inc. v.
GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir. 2015)).
Applicant submitted records of twenty-seven third-party applications and
registrations for marks including the literal element COWBOY to show that this
portion of the mark in the cited registration is conceptually weak and should not be
afforded a broad scope of protection.5 The Examining Attorney submits that these
applications and registrations are not probative of the weakness of the cited mark.6
On closer review, Applicant’s evidence includes eight pending applications7 which
have no probative value because they “are only evidence that the application was
filed.” In re Team Jesus LLC, No. 88105154, 2020 TTAB LEXIS 503, at *17 n.29 (“[A]n
application would be evidence only of the fact that it was filed, and therefore has no
probative value”); Weider Publ’ns, LLC v. D&D Beauty Care Co., No. 91199352, 2014
TTAB LEXIS 2, at *43 (“[T]he third-party applications submitted by applicant are of
no probative value [in assessing the strength of the mark]; they merely serve to show
5 June 10, 2025 Request for Reconsideration, at TSDR 13-54, 56-78.
6 6 TTABVUE 8-16.
7 The marks subject to pending applications are: SAMURAI COWBOY, SUSHI COWBOY &
Design, SOY COWBOY, FRENCH COWBOY, COASTAL COWBOY, COWBOY CANTINA
(two applications), and COWBOY COFFEE. Two of these applications, each for COWBOY
CANTINA, were not mentioned in Applicant’s brief. See 4 TTABVUE 6-7.
Because Applicant’s argument that “SAMURAI COWBOY, SUSHI COWBOY, and SOY
COWBOY were all published and unopposed even though they all have an arguable
commercial impression that ties to Japan or Japanese culture despite the TOKYO COWBOY
registration confirms that TOKYO COWBOY is weak and only entitled to a narrow scope of
protection,” 4 TTABVUE 7, is based on pending applications, we also disregard this
argument.

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the filing of each application.”). Likewise, we take judicial notice that one of the
registrations properly made of record is cancelled.8 Volkswagenwerk AG v. Clement
Wheel Co., Inc., 1979 TTAB LEXIS 64, at *3 n.3 (taking judicial notice based on a
change in registration’s status). Cancelled registrations are evidence of nothing other
than the fact that they once issued. Sunnen Prods. Co. v. Sunex Int’l, Inc., No.
91069733, 1987 TTAB LEXIS 92, at *7. This leaves us with the following fifteen third-
party registrations for restaurant and bar services, all of which are based on use in
commerce:
Mark Relevant Goods and Services
COCKTAIL COWBOYS
(“COCKTAIL” disclaimed)
“Bartending services” in Class 43
COWBOY BURGERS & BBQ
(“BURGERS & BBQ”
disclaimed)
“Restaurant services, namely, dining in, drive-
through and take-out services” in Class 43
COWBOY CHICKEN
(“CHICKEN” disclaimed)
“Restaurant and catering services” in Class 43
COWBOY CHOW (“CHOW”
disclaimed)
“Restaurant, bar, and catering services” in
Class 43
COWBOY CIAO “Restaurant and bar services” in Class 43
COWBOY CITY “Bar and cocktail lounge services; …
Restaurant and bar services, including
restaurant carryout services….” in Class 43
COWBOY COOKIN’
(Supplemental Register;
“COOKING” disclaimed)
“Restaurant services; Bar services” in Class 43
8 See 6 TTABVUE 9 (referencing cancellation of Reg. No. 5659714 for TACO COWBOY).

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Mark Relevant Goods and Services
COWBOY FOOD & DRINK
(“FOOD & DRINK” disclaimed)
“Restaurant and bar services” in Class 43
COWBOY JACK’S “Restaurant services, namely, providing of
food and beverages for consumption on and off
the premises; … bar and cocktail lounge
services” in Class 43
COWBOY STAR RESTAURANT
AND BUTCHER SHOP
(“RESTAURANT AND
BUTCHER SHOP” disclaimed)
“Bar and restaurant services” in Class 43
COWBOY’S and Design “Restaurant services” in Class 43
COWBOYS DIPS & CHIPS
(“DIPS & CHIPS” disclaimed)
“Restaurant and bar services” in Class 43
ITALIAN COWBOY (“ITALIAN”
disclaimed)
“Restaurant services, namely, providing of
food and beverages for consumption on and off
the premises” in Class 43
NORTHERN COWBOY “Restaurant and bar services” in Class 43
THE CAJUN COWBOY
(“CAJUN” disclaimed)
“Mobile restaurant services” in Class 43
These registrations are probative to demonstrate that COWBOY is a common
element in marks for restaurant and bar services. Apex Bank v. CC Serve Corp., 156
F.4th 1230, 1235 (Fed. Cir. 2025) (“The sixth DuPont factor requires the Board to
consider similar marks for similar goods and services.”). This shows that the
COWBOY term is relatively weak as applied to the restaurant and bar services in the
cited mark. Juice Generation, 794 F.3d at 1339 (“Third party registrations are
relevant to prove that some segment of the composite marks which both contesting

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parties use has a normally understood and well-recognized descriptive or suggestive
meaning, leading to the conclusion that that segment is relatively weak.”).
As to commercial weakness, the “probative value of third-party trademarks
depends entirely upon their usage.” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 1373 (Fed. Cir. 2005). There is no evidence
of actual use as to any of the third-party registrations to demonstrate commercial
weakness of the formative COWBOY term. Id. (“[W]here the ‘record includes no
evidence about the extent of [third-party] uses ... the probative value of this evidence
is thus minimal.”).
In sum, the sixth DuPont factor slightly disfavors a finding of likelihood of
confusion, and we accord the term COWBOY in the cited mark a somewhat lesser
scope of protection due inherently distinctive marks.
C. The Marks
The first DuPont factor involves an analysis of the similarity or dissimilarity of
the marks in their entireties as to appearance, sound, connotation, and commercial
impression. Palm Bay, 396 F.3d at 1371; see also Stone Lion Cap. Partners, L.P. v.
Lion Cap. LLP, 746 F.3d 1317, 1319 (Fed. Cir. 2014). “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 Co., 390 F.2d 728, 732 (CCPA 1968) (“It is

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sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”) (citation omitted).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d
1340, 1344 (Fed. Cir. 2003)). The proper test regarding similarity “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.” Cai, 901 F.3d at 1373
(quoting 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 trademarks.” In re St. Julian
Wine Co., No. 87834973, 2020 TTAB LEXIS 196, at *13.
We also keep in mind that, where (as here) the parties services are identical, a
“lesser degree of similarity between the marks may be sufficient to give rise to a
likelihood of confusion.” Coach Servs., 668 F.3d at 1368; see also Century 21 Real
Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992) (“When marks
would appear on virtually identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion declines.”).
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, our finding must be based on the entire marks, not just part of
the marks. See, e.g., In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985); see
also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981) (“It is

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axiomatic that a mark should not be dissected and considered piecemeal; rather, it
must be considered as a whole in determining likelihood of confusion.”). “No element
of a mark is ignored simply because it is less dominant, or would not have trademark
significance if used alone.” In re Electrolyte Labs. Inc., 929 F.2d 645, 647 (Fed. Cir.
1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293 (CCPA
1974)). Nonetheless, “in articulating reasons for reaching a conclusion on the issue of
confusion, there is nothing improper in stating that, for rational reasons, more or less
weight has been given to a particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their entireties.” In re Detroit
Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018) (quoting Nat’l Data Corp., 753 F.2d
at 1058).
As a reminder, Applicant’s mark is JAPANESE COWBOY in standard characters,
and the cited mark is TOKYO COWBOY, also in standard characters. The marks
each have a geographic term (TOKYO and JAPANESE) as the first term; they share
the literal term COWBOY as the second term, which we have found to be entitled to
a somewhat diminished scope of protection. Applicant submits that the differences
between TOKYO and JAPANESE are sufficient to distinguish the marks in sight and
sound.9 The Examiner counters, in essence, that the shared term COWBOY is the
dominant portion of both marks; and that, when used with terms, in the same
9 4 TTABVUE 9.

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structure, that are similar in meaning (in that Tokyo is a city in Japan), results in
marks with overall similar commercial impressions.10
The term JAPANESE is disclaimed as descriptive in Applicant’s mark; often
descriptive terms have a lesser impact on consumer perception. See, e.g., Detroit
Athletic, 903 F.3d at 1305 (disclaimed “ATHLETIC CO.” unlikely to change
commercial impression of the mark); In re Dixie Rests., 105 F.3d 1405, 1407 (Fed. Cir.
1997) (“DELTA,” not the disclaimed generic word “CAFE,” is dominant portion of
mark THE DELTA CAFE and design). However, here the combination of JAPANESE
with COWBOY creates a certain unusual incongruity. This is the same incongruity
present in the mark TOKYO COWBOY (which does not have a disclaimer). Because
of that shared incongruity, consumers are likely to treat each mark as a whole and
remember the shared following term COWBOY as parts of the marks.
We acknowledge Applicant’s argument that consumers often focus on the first
term in marks — here, TOKYO and JAPANESE.11 While often true, we do not believe
that consumers would focus on the first terms in these marks, but rather on the
marks as a whole due to their incongruous nature, as explained above. And the marks
are structured the same ([geographic term relating to Japan] COWBOY), with similar
overall impressions due to the overlapping geographic locations — that is, Tokyo is
10 See 6 TTABVUE 3-8.
11 4 TTABVUE 9 (citing Presto Prods., Inc. v. Nice-Pak Prods., Inc., No. 91074797, 1988 TTAB
LEXIS 60, at *8 (“[I]t is often the first part of a mark which is most likely to be impressed
upon the mind of a purchaser and remembered” when making purchasing decisions)).

Serial No. 98888426
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the “capital and most populous city in Japan.”12 Thus, consumers are likely to make
an immediate connection between TOKYO and JAPANESE. Because of this
connection, simply replacing the word TOKYO in the cited mark with JAPANESE is
unlikely to obviate confusion because consumers may mistakenly believe that the
mark denotes a new line of restaurants and bars from the same owner. Joel Gott
Wines, LLC v. Rehoboth Von Gott, Inc., No. 91197659, 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”).
Despite the weakness of the shared COWBOY term, we conclude that the marks,
considered in their entireties, are similar in sight and sound, and more importantly
very similar in meaning and overall commercial impression. See Inn at St. John’s,
2018 TTAB LEXIS 170, at *13 (similarity in any element under the first DuPont
factor may be sufficient to find the marks confusingly similar). Again, given the
fallibility of consumers’ memories and the fact that they are unlikely to encounter
marks at the same time or side-by-side, we find that Applicant’s mark and the cited
12 May 21, 2025 Office Action, at TSDR 9. To the extent that we rely on this or other evidence
of record for the truth of the matter asserted therein, there is no rule against consideration
of hearsay evidence in ex parte proceedings. In re Epstein, 32 F.3d 1559, 1566 (Fed. Cir. 1994).
The Board “generally takes a somewhat more permissive stance with respect to the
admissibility and probative value of evidence in an ex parte proceeding than it does in an
inter partes proceeding....” In re Canine Caviar Pet Foods, Inc., No. 85710350, 2018 TTAB
LEXIS 155, at *18 (quoting TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) § 1208 (June 2017)).

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mark are similar. Accordingly, the first DuPont factor favors a finding of likelihood
of confusion.
D. Conclusion on Likelihood of Confusion
Finally, we must weigh the findings we have made on the DuPont factors for which
there has been evidence and argument in this appeal. Charger Ventures, 64 F.4th at
1381 (“[I]t is important ... that the Board ... weigh the DuPont factors used in its
analysis and explain the results of that weighing.”).
In this case, the second, and third DuPont factors weigh heavily in favor of
likelihood of confusion given the identical nature of the services provided in
overlapping trade channels to the same classes of consumers. The first factor weighs
strongly in favor of a likelihood of confusion due to the shared connotation and
commercial impression. These factors outweigh the sixth factor, which weighs only
slightly against a likelihood of confusion.
We conclude that confusion is likely between JAPANESE COWBOY and TOKYO
COWBOY for the identical services in Class 43.
Decision
The refusal to register application Ser. No. 98888426 is affirmed under
Trademark Act Section 2(d).