CC Serve Corporation v. Apex Bank

This Opinion is Not a
Precedent of the TTAB
Mailed: July 17, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
CC Serve Corporation
v.
Apex Bank
_____
Opposition No. 91254295
On Remand
_____
Austin Padgett of Troutman Pepper Hamilton Sanders LLP,
for CC Serve Corporation.
L. Clint Crosby, Adam S. Baldridge, and Nicole Berkowitz Riccio of Baker Donelson
Bearman Caldwell & Berkowitz PC, for Apex Bank.
_____
Before Lykos, Pologeorgis1 and English,
Administrative Trademark Judges.
Opinion by English, Administrative Trademark Judge:
Applicant seeks registration on the Principal Register of the three marks below,
each for “banking and financing services,” in International Class 36.
1 Judge Cataldo was on the panel for the final decision appealed to the U.S. Court of Appeals
of the Federal Circuit. He has since retired, and Judge Pologeorgis has been substituted for
him on this decision on remand. Cf. In re Bose Corp., 772 F.2d 866, 869 (Fed. Cir. 1985)
(“[T]here was no error in substituting a board member without allowing reargument. The
statutory requirement that a case be ‘heard’ by three board members means judicially heard,
not physically heard.”).

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2
3
4
2 Application Serial No. 88573746, filed on August 9, 2019 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an allegation of a bona fide intent to use the
mark in commerce. The word “BANK” has been disclaimed. The application includes the
following description of the mark: “The mark consists of the word ‘aspire’ positioned above
the word ‘BANK’ in a stylized font with the outline of a mountain peak extending from behind
the word ‘aspire’.” Color is not claimed as a feature of the mark.
3 Application Serial No. 88573752, filed on August 9, 2019 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an allegation of a bona fide intent to use the
mark in commerce. The word “BANK” has been disclaimed. The application includes the
following description of the mark: “The mark consists of the word ‘aspire’ positioned above
the word ‘BANK’ in a stylized font with the orange outline of a mountain peak extending from
behind the word ‘aspire’. The word ‘aspire’ is colored blue, and the word ‘BANK’ is colored
orange.” The colors blue and orange are claimed as features of the mark.
4 Application Serial No. 88573758, filed on August 9, 2019 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an allegation of a bona fide intent to use the
mark in commerce. The word “BANK” has been disclaimed. The application includes the
following description of the mark: “The mark consists of the word ‘aspire’ positioned above
the word ‘BANK’ on a blue background in a stylized font with the orange outline of a
mountain peak extending from behind the word ‘aspire’. The word ‘aspire’ is colored white,
and the word ‘BANK’ is colored orange.” The colors white, blue, and orange are claimed as
features of the mark.

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I. Background
On February 17, 2020, Opposer filed a consolidated notice of opposition against
Applicant’s applications alleging a claim of likelihood of confusion under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), based on ownership of a Principal Register
registration for the standard-character mark ASPIRE for “credit card services,” in
International Class 36,5 and prior common law use of the mark ASPIRE for credit
card services.6 In its answer, Applicant denied the salient allegations in the notice of
opposition.7
On May 12, 2023, the Board issued a final decision (the “Prior Decision”)
sustaining the opposition as to each application finding that Opposer had proven by
a preponderance of the evidence its entitlement and priority based on its pleaded
registration for the standard-character mark ASPIRE and that Applicant’s marks
were likely to cause confusion therewith. With respect to likelihood of confusion, the
Board:
(1) found under the second DuPont factor that the parties’ services were:
(i) “legally identical, in part” to the extent “Applicant’s ‘banking services’
are broad enough to encompass the ‘extension of credit’ through issuance
of credit cards and its ‘financing services’ are broad enough to include
providing funds or extending credit through the issuance of credit
5 Registration No. 2126948, registered on January 9, 1998, Section 8 accepted and Section 15
acknowledged; twice renewed. Opposer attached to its notice of opposition printouts from the
Office’s Trademark Electronic Search System (TESS) and assignment database showing that
the pleaded registration is active and owned by Opposer. 1 TTABVUE 15-42 (Exhibit C). See
Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1).
6 Notice of Opposition, 1 TTABVUE.
7 The answer also asserts certain “defenses.” Because our treatment of those “defenses,” as
set forth in the Board’s May 12, 2023 decision, was not challenged on appeal; we maintain
that treatment in this decision on remand. 59 TTABVUE 3, n.7.

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cards”8 and (ii) otherwise substantially similar based on third-party
marks in use and registered for credit card services on the one hand and
banking and financing services on the other hand;9
(2) presumed under In re Viterra, Inc., 671 F.3d 1358, 1362 (Fed. Cir.
2012) that for the legally identical services the parties’ trade channels
and consumers overlapped under the third DuPont factor;10
(3) deemed the sophistication of relevant consumers neutral under the
fourth DuPont factor because “the standard of care for the likelihood of
confusion analysis is that of the least sophisticated consumer and the
record is devoid of evidence that such consumers would exercise more
than ordinary care;”11
(4) accorded Opposer’s ASPIRE mark “a normal scope of protection”
finding that Opposer had failed to demonstrate commercial strength
under the fifth DuPont factor and that Applicant had failed to
demonstrate commercial or conceptual weakness under the sixth
DuPont factor;12 and
(5) found Applicant’s marks , , and
, in their entireties, “highly similar to Opposer’s
registered standard-character mark ASPIRE in overall appearance,
sound, connotation and commercial impression” under the first DuPont
factor.13
Because all the relevant DuPont factors either weighed in favor of finding a
likelihood of confusion or were neutral, the Board concluded that there was a
8 59 TTABVUE 27-28.
9 59 TTABVUE 28-34.
10 59 TTABVUE 35.
11 59 TTABVUE 62.
12 59 TTABVUE 51.
13 59 TTABVUE 60.

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likelihood of confusion under Section 2(d) of the Trademark Act and sustained the
opposition.14
Applicant appealed the Prior Decision to the U.S. Court of Appeals for the Federal
Circuit (the “Court”), arguing “that the Board erred in its likelihood-of-confusion
analysis, specifically with respect to its analysis of the second, sixth, and first DuPont
factors.” Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1234 (Fed. Cir. 2025).
On September 25, 2025, the Court issued its decision, affirming the Board’s
findings as to the second DuPont factor, but vacating the Prior Decision with respect
to the sixth DuPont factor and remanding “for reconsideration of the appropriate
scope of third-party marks eligible for consideration in view of the Board’s factual
finding that the parties’ services are highly similar.” Id. at 1236. The Court also
vacated the Prior Decision and remanded for reconsideration of the first DuPont
factor explaining that “[b]ecause commercial impression informs the analysis under
the first DuPont factor, … reconsideration of the sixth DuPont factor may result in a
different determination of the mark’s commercial strength or weakness and affect the
overall commercial impression.” Id.
Pursuant to the Court’s decision, we reassess below the first and sixth DuPont
factors and reweigh all the relevant DuPont factors in light of this reassessment. In
so doing, we incorporate by reference our findings in the Prior Decision under the
second, third, fourth and fifth DuPont factors, which were undisturbed on appeal.
14 59 TTABVUE 62-63.

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II. Likelihood of Confusion
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. du Pont
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). We consider each
DuPont factor for which there is evidence and argument. See, e.g., Apex Bank,
156 F.4th at 1234; In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019). But
“any one of the factors may control a particular case.” Tiger Lily Ventures Ltd. v.
Barclays Cap. Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022) (cleaned up; citation omitted);
see also In re Charger Ventures LLC, 64 F.4th 1375, 1381 (Fed. Cir. 2023) (citation
omitted) (“The weight given each factor depends on the circumstances of each case.”);
In re Mighty Leaf Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010) (“No mechanical rule
determines likelihood of confusion, and each case requires weighing of the facts and
circumstances of the particular mark.”).
Sixth DuPont Factor
There are “two prongs of analysis” under the sixth DuPont factor: conceptual
strength and commercial strength. Id. Applicant introduced evidence of third-party
use and registration and based on this evidence argued that “[t]he word ASPIRE is
weak as applied to credit card services and should be afforded a narrow scope of
protection.”15
15 Applicant’s Brief, 55 TTABVUE 21.

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One purpose of introducing evidence of third-party use is to show commercial
weakness by demonstrating that “customers have become so conditioned by a
plethora of ... similar marks that customers have been educated to distinguish
between different [such] marks on the bases of minute distinctions.” Omaha Steaks
Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1324 (Fed. Cir. 2018)
(quoting Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772,
396 F.3d 1369, 1374 (Fed. Cir. 2005)) (internal quotation marks omitted); see also
Apex Bank, 156 F.4th at 1235 (“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.”). A second purpose of third-party
use, as well as third-party registrations, is to prove conceptual weakness by
demonstrating “that some segment of the [mark] 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) (finding the Board erred because it “never inquired whether and
to what degree the extensive evidence of third-party use and registrations indicates
that the phrase PEACE & LOVE carries a suggestive or descriptive connotation in
the food service industry, and is weak for that reason”) (emphasis omitted).
In considering third-party uses and registrations in the Prior Decision, the Board
concluded that because “the parties’ services are legally identical to the extent
Applicant’s ‘banking and financing services’ encompass Opposer’s ‘credit card
services,’ … for purposes of the sixth DuPont factor, the properly defined relevant

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public are consumers of ‘credit card services’.”16 The Court held that this “analysis
was legally flawed.”
The sixth DuPont factor requires the Board to consider similar marks
for similar goods and services. In the Board’s analysis of the second
DuPont factor, the Board determined that the parties’ services are
highly similar, which led the Board to conclude that the second factor
weighed heavily in favor of finding likelihood of confusion. When
analyzing the sixth Dupont factor, however, the Board restricted the
universe of marks it considered to only those relating to credit card
services and excluded marks related to other banking and financing
services. That was an error.
Apex Bank, 156 F.4th at 1235 (internal citations omitted).
The Court explained that “[w]hen 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.” Id. at 1236 (record citations
omitted). The Court went on to say “[w]e see no reason to impose a different and more
stringent legal standard for similarity under the sixth DuPont factor.” Id.
Accordingly, in our analysis under the sixth DuPont factor, we consider third-
party marks for the parties’ goods, which we have found in-part identical and
otherwise “substantial[ly] similar[]” under the second DuPont factor, specifically:
• “Credit card services,” namely, “issuing credit cards for use to finance
purchases as well as counseling regarding credit card debt, processing credit
card payments and transactions, credit card authorization, credit card
monitoring and alerts, managing credit card accounts, and providing access to
credit scores”;17
16 59 TTABVUE 47.
17 59 TTABVUE 25.

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• “Banking services,” namely, providing for “the custody, loan, exchange, or issue
of money, for the extension of credit, and for facilitating the transmission of
funds”;18 and
• “Financing services,” namely, “sell[ing] something on credit”; “rais[ing] or
provid[ing] funds or capital for”; and “furnishing funds.”19
The record includes website printouts showing use and, where noted, registration
of the following third-party marks for such services.20
1. ASPIRE, ASPIRE LIFESTYLE LENDING and ACU ASPIRE – for a credit
card, home improvement loans and personal loans offered by America’s Credit
Union;21 Opposer petitioned to cancel this entity’s registration for the mark
(Reg. No. 6793418) for “issuing credit cards; Providing
personal loans and lines of credit.”22 We take judicial notice that after trial
closed, the registration was voluntarily surrendered and Opposer’s petition for
cancellation was denied without prejudice.23
2. ASPIRE and THE ASPIRE CARD – for a secured credit card offered by Texell
Credit Union.24 The website promotes that to be eligible for Texell’s credit
union services, persons must live in one of 12 counties in Texas, be an
immediate family members of a credit union member, or any resident of Texas
18 59 TTABVUE 27 (citing www.merriam-webster.com/dictionary/banking and
www.merriam-webster.com/dictionary/bank).
19 59 TTABVUE 27 (citing www.merriam-webster.com/dictionary/finance).
20 As in the Prior Decision, we have excluded from this list third-party marks for which
Opposer introduced evidence supporting that the marks are no longer in use or are in use
only outside the United States.
21 Applicant’s Notice of Reliance, 42 TTABVUE 306-09 (Exhibit 29).
22 Stone Rebuttal Declaration, 51 TTABVUE 6, 81-82, ¶ 18 and Exhibit 15.
23 Cf. Harry Winston Inc. v. Bruce Winston Gem Corp., No. 91153147, 2014 WL 3686875, at
*4 n.19 (TTAB 2014) (taking judicial notice of change in status and title of pleaded
registrations that were properly introduced).
24 Applicant’s Notice of Reliance, 42 TTABVUE 494-98 (Exhibit 71); see also id. at 675-76,
689 ((Opposer’s Rule 30(b)(6) deposition and Exhibit 21 thereto; Opposer’s witness Mr. Stone
testified that he had not seen this use before).

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that is a member of the “Texas Co [sic] Counsel.”25 Texell also promotes itself
as a “not-for-profit financial cooperative serving Central Texas since 1948.”26
3. ASPIRE and ASPIRE CHECKING – a partially secured credit card and a
checking account for college students offered by Addition Financial. The
website promotes that “Anyone who lives, works, worships, attends school or
vocational training, or is an alumni of any college, university, or educational
institution located in 24 select [Florida] counties may join.”27
4. ASPIRE CHECKING – a business checking account offered by B1Bank, that
includes a “business rewards credit card”;28
5. ASPIRE INTEREST CHECKING – interest checking account offered by Park
Bank.29 One telephone number is listed under “Customer Service” and it has a
608 area code,30 which is located in Wisconsin.
6. ASPIRE FINANCIAL COUNSELING – promoting services to “gain control of
your finances through budgeting and credit education, debt consolidation, loan
modifications and more,” helping those who struggle with “bad or no credit,”
25 Woodruff Rebuttal Declaration, 50 TTABVUE 189-90 (Exhibit 39).
26 Woodruff Rebuttal Declaration, 50 TTABVUE 192 (Exhibit 40).
27 Woodruff Rebuttal Declaration, 50 TTABVUE 186 (Exhibit 38).
28 Applicant’s Notice of Reliance, 42 TTABVUE 527-30 (Exhibit 77). Opposer introduced a
printout from the social media site X identifying this entity as having “99 Followers,”
Woodruff Rebuttal Declaration, 50 TTABVUE 204 (Exhibit 42), but this information is
hearsay. WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., No. 91221553,
2018 WL 1326374, at *4 (TTAB 2018) (explaining that “printouts from various websites …
constitute[] hearsay and may not be relied upon for the truth of the matters asserted
therein.”).
29 Applicant’s Notice of Reliance, 42 TTABVUE 548-53 (Exhibit 82).
30 Applicant’s Notice of Reliance, 42 TTABVUE 553. We take judicial notice of the geographic
location corresponding to the area code from the North American Numbering Plan
Administrator (NANPA), www.secure.nanpa.com/public-report/npa/geographic-use (last
visited July 9, 2026). See 47 C.F.R. § 52.13 (identifying responsibilities of NANPA). Fed. R.
Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable
dispute because it ... can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”); In re tapio GmbH, No. 87941532, 2020 WL 6938377, at
*14, n.46 (TTAB 2020); Nieves & Nieves LLC, No. 85179263, 2015 WL 496132, at *3 (TTAB
2015) (“We take judicial notice of recent official U.S. government publications concerning
Internet use in the United States: [from the government websites of www.census.gov and
www.ntia.doc.gov].”).

Opposition No. 91254295
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offered by Kalsee Credit Union; one telephone number is listed with an area
code of 269, which is located in Michigan.31
7. – offering online banking and a feature
to “Control Your Cards”: “Monitor your cards, turn them off or on, and approve
charges with Card Valet,” lists a telephone number with a 701 area code, which
is in North Dakota.32
8. HILTON HONORS AMERICAN EXPRESS ASPIRE CARD and HILTON
HONORS ASPIRE CARD – a credit card offered by American Express;33
9. ASPIRATION and ASPIRATION ZERO – savings, debit card and credit card
services offered by Aspiration Financial, LLC;34
10. ASPIRE BANK – online banking services; also uses ASPIRE FINANCIAL but
the specific products and services offered under this mark are not identified.
Under “Contact Us” two telephone numbers with a 701 area code are listed, for
the cities Hatton and Fargo, North Dakota.35
31 Applicant’s Notice of Reliance 42 TTABVUE 465-70 (Exhibit 64). We take judicial notice of
this fact from NANPA. See www.secure.nanpa.com/public-report/npa/geographic-use (last
visited July 9, 2026).
32 Applicant’s Notice of Reliance 42 TTABVUE 521-26 (Exhibit 76); see also id. at 671-73, 684
(Opposer’s Rule 30(b)(6) deposition and Exhibit 16 thereto). We take judicial notice that the
701 area code identifies telephone numbers in North Dakota. See
www.secure.nanpa.com/public-report/npa/geographic-use (last visited July 9, 2026). Opposer
introduced a printout from the National Credit Union Association website at
mapping.ncua.gov listing this entity as having 6,472 members. Woodruff Rebuttal
Declaration, 50 TTABVUE 202 (Exhibit 41). This information is hearsay. Weapon, 2018 WL
1326374, at *4. We do not take judicial notice of the contents of this printout because we do
not know if the information was provided by the credit union or collected/verified by NCUA.
33 Applicant’s Notice of Reliance, 42 TTABVUE 479-82 (Exhibit 67).
34 Applicant’s Notice of Reliance 42 TTABVUE 336-43 (Exhibit 35). An apparent related
company, Aspiration Partners, Inc. (id. at 343), owns Reg. No. 4778449 for inter alia,
financial services, including investment advice, management and consultation, debt
investment, trading financial instruments, wealth management, money management
services all for low-and mid-net worth clients. Id. at 206-13 (Exhibit 14).
35 Applicant’s Notice of Reliance, 42 TTABVUE 675, 688 (Opposer’s Fed. R. Civ. P. 30(b)(6)
deposition and Exhibit 20 thereto). See n.30 explaining that the 701 area code identifies
phone numbers in North Dakota.

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11. ASPIRE ACCOUNT – checking account offered by Fairfield County Bank. The
website lists a telephone number with a 203 area code, which is located in
Connecticut.36
12. ASPIRE CHECKING – checking account offered by Greater Nevada Credit
Union. The website states: “Choose Greater Nevada Credit Union for personal
and business banking throughout Nevada including branches in Carson City,
Reno, Sparks, Dayton, Fernley, Ely, Minden / Gardnerville, West Wendover
and Elko.”37
13. ASPIRE CHECKING – checking account offered by Mississippi Federal Credit
Union.38 On Twitter (now X) this entity promotes itself as “A trusted
community financial partner” with locations in Jackson, Oxford, Grenada and
Clinton.39
14. ASPIRE CHECKING – checking account offered by Spero Financial and
promoted to “Reach Your Financial Hopes and Aspirations.”40
15. ASPIRE CHECKING – checking account and debit card offered by Guardians
Credit Union and South Florida FCU, a division of Guardians Credit Union.41
Social media page promotes Guardians’ services to “anyone living or working
in Palm Beach, Martin or St. Lucie Counties” in Florida.42
36 Applicant’s Notice of Reliance, 42 TTABVUE 514-17 (Exhibit 74). We take judicial notice
that the area code 203 identifies telephone numbers in Connecticut. See
www.secure.nanpa.com/public-report/npa/geographic-use (last visited July 9, 2026).
37 Applicant’s Notice of Reliance, 42 TTABVUE 518-20 (Exhibit 75); id. at 673-74, 686
(Opposer’s Rule 30(b)(6) deposition and Exhibit 16 thereto).
38 Applicant’s Notice of Reliance, 42 TTABVUE 531-35 (Exhibit 78).
39 Woodruff Rebuttal Declaration, 50 TTABVUE 213 (Exhibit 43). We take judicial notice that
these are cities in Mississippi. www2.census.gov/programs-surveys/metro-micro/reference-
maps/2020/state-maps/28_Mississippi_2020.pdf and www.britannica.com/topic/Mississippi-
College#ref.271333 (both last visited July 9, 2026). See Nieves & Nieves, 2015 WL 496132, at
*3.
40 Applicant’s Notice of Reliance 42 TTABVUE 536-40 (Exhibit 79).
41 Applicant’s Notice of Reliance, 561-63 (Exhibit 84); see also id. at 42 TTABVUE 541-42
(Exhibit 80).
42 Woodruff Rebuttal Declaration, 50 TTABVUE 237-38 (Exhibit 47). The National Credit
Union Association website at mapping.ncua.gov lists South Florida Credit Union as having
3,428 members. Woodruff Rebuttal Declaration, 50 TTABVUE 232-33 (Exhibit 45). This
information is hearsay. WeaponX, 2018 WL 1326374, at *4.

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16. ASPIRE and ASPIRE+ – business checking accounts offered by Max Credit
Union; the webpage states: “MAX Credit Union is a full-service financial
institution serving Central and East Alabama, including Montgomery , AL;
Auburn, AL; Opelika, AL; Prattville, AL; Wetumpka, AL; and Troy, AL.”43
17. ASPIRE SAVINGS – savings account offered by Bank of Oak Ridge with
access to “credit card applications”; This entity promotes the local nature of the
service: “Whether you are saving for your future or something special, enjoy
the perks of Spectacularly local banking with Bank of Oak Ridge….”44
18. – “online resource for personalized mortgage
solutions, fast customized quotes, great rates, & service with integrity.”
Corporate and “Main Office” listed as in Marlton, NJ with a branch office in
North Wildwood, NJ.45
19. – offering home loans and listing a telephone number
and address in Tennessee.46
20. ASPIRE and ASPIRE RESOURCES INC – a student loan finance program
directed to employers to provide to their employees; “Our College Finance
Benefits program allows you to choose one or more student loan benefits to
help your employees, no matter what stage they’re at.”47
21. ASPIRE LENDING – an “online” mortgage broker facilitating home loans with
a toll-free telephone number.48
43 Applicant’s Notice of Reliance, 42 TTABVUE 543-47 (Exhibit 81).
44 Applicant’s Notice of Reliance, 42 TTABVUE 554 (Exhibit 83).
45 Applicant’s Notice of Reliance, 42 TTABVUE 382-83 (Exhibit 45).
46 Applicant’s Notice of Reliance, 42 TTABVUE 384-87 (Exhibit 46) (the text under ASPIRE
is “HOME LOANS”).
47 Applicant’s Notice of Reliance, 42 TTABVUE 327-31, (Exhibit 33). Applicant also
introduced corresponding registrations for ASPIRE RESOURCES INC and ASPIRE
RESOURCES INC & Design, both for “security services, namely, the origination, purchase
and servicing of student loans.” Applicant’s Notice of Reliance, 42 TTABVUE 186-98
(Exhibits 11-12).
48 Applicant’s Notice of Reliance, 42 TTABVUE 378-81 (Exhibit 44).

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22. – providing information on student loan payments and
forgiveness programs; listed address is Des Moines, Iowa, but listed telephone
numbers are toll free.49
23. ASPIRE VENTURES and ASPIRE UNIVERSAL – launching “a $300 million
investment fund through its venture arm to invest in technology to support
precision medicine.” The ASPIRE UNIVERSAL mark is registered in standard
characters, Reg. No. 5085019, and for, inter alia, “venture capital services,
namely, providing financing to emerging and start-up companies.”50
Applicant introduced numerous additional third-party marks in use for services
other than “credit card services” or “banking and financing services.” Applicant
asserts that these marks are relevant because they are used “in connection with the
financial services industry more broadly,” including but not limited to, investment,
retirement and wealth management services, insurance services, and tax and
accounting services.51
The fact that services may fall within the same broad general category does not
mean that they are “similar” for purposes of the sixth DuPont factor. Omaha Steaks,
908 F.3d at 1325 (rejecting applicant’s argument that third-party marks for “popcorn,
wine, oriental foods and alcoholic beverages” are “similar” to the parties’ meat
products under the sixth DuPont factor because they “can be bucketed into such broad
categories” as “‘food products’ or products sold in a ‘grocery store’”; based on the
49 Applicant’s Notice of Reliance, 42 TTABVUE 389 (Exhibit 47).
50 Applicant’s Notice of Reliance, 42 TTABVUE 317, 323 (Exhibit 23); id. at 173-178 (Exhibit
9). This entity also owned Reg. No. 4681350 for the standard-character mark ASPIRE
VENTURE for the same services. 42 TTABVUE 253-59 (Exhibit 21). We take judicial notice
that the registration was cancelled after trial.
51 Applicant’s Brief, 55 TTABVUE 23.

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record, such goods “bear no relationship to meat or meat-based products”); cf. Calypso
Tech. Inc. v. Calypso Cap. Mgmt., LP, No. 91184576, 2011 WL 4090446, at *9
(TTAB 2011) (finding evidence did not establish that computer software in the
financial services was related to “equity investment management and fund services,”
even though there was “clearly some connection” between the goods and services
because both were in the financial field); Elec. Data Sys. Corp. v. EDSA Micro Corp.,
No. 91077705, 1992 WL 184671, at *4 (TTAB 1992) (“[T]he issue of whether or not
two products are related does not revolve around the question of whether a term can
be used that describes them both, or whether both can be classified under the same
general category.”).
Under the sixth DuPont factor, “the ‘real world segment of the public is limited to
the market or universe necessary to circumscribe purchasers or users of products or
services like those being offered by the parties’ under a common mark.” Omaha
Steaks, 908 F.3d at 1325 (quoting Nat’l Cable Television Ass’n v. Am. Cinema Editors,
Inc., 937 F.2d 1572, 1579 (Fed. Cir. 1991)). “Only if other offerings under the ‘common’
mark are also directed to that relevant public is it reasonable to infer that they may
have become conditioned to draw fine lines between sources of ‘related’ goods or
services.” Nat’l Cable Television, 937 F.2d at 1579.
In the circumstances here, the “relevant public” is consumers of credit, banking
and financing services, so we focus on the third-party marks for these services, as
identified above. The record, however, shows that retirement and financial planning
and wealth management services are related to “banking services,” which as

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discussed, are in-part legally identical to “credit card services.”52 We therefore give
some consideration to the 18 ASPIRE-formative marks in the record for retirement
and financial planning and wealth management services.53 Although they are not as
probative as the marks listed above, they have some persuasive value regarding the
strength of Opposer’s mark.
Applicant’s threshold showing that third parties use the mark ASPIRE on their
websites carries the presumption that the above-listed service marks are being used
by third parties in connection with the offering of the advertised services. Cf. Lloyd’s
Food Prods., Inc. v. Eli’s, Inc., 987 F.2d 766, 768 (Fed. Cir. 1993) (“Lloyd’s Foods’ [sic]
52 Opposer’s Notice of Reliance, 37 TTABVUE 50-55, 65-78, 88-94, 103-18, 127-33, 150-56,
166-71, 194-201, 215-27, 234-38, 262-73, 281-92, 310-12, 316-21, 331-46 (Exhibits 3, 5, 6, 8,
10, 11, 13, 16, 18, 22, 24, 25, 27, 29, 30, 32, 35, 37, 40, and 41) (CATHAY BANK registered
for banking services and individual retirement accounts and offering banking, credit card
and wealth management services; GIANTBANK.COM offering banking services, including
retirement accounts; JONAH BANK offering banking services and wealth management
services; PATH TO THE PACK registered for financial administration of retirement plans,
financial planning and banking services; SIMMONS BANK offering banking, credit card and
investment services; UNITED BANK offering banking, credit card and wealth management
services; SOUTH ATLANTIC BANK registered and in use for financial consultation, wealth
management, banking and credit card services; CAPITAL BANK offering banking services
and individual retirement savings accounts; OAK BANK registered for individual retirement
account and banking services; CENTENNIAL BANK offering banking and wealth
management services; and FIFTH THIRD BANK offering banking and wealth management
services).
53 Applicant’s Notice of Reliance, 42 TTABVUE 174-79, 180-83, 311-13, 325-26, 345-47, 352-
77, 391-400, 413-27, 435-51, 456-59, 476-79 (Exhibits 10 and 23 (registration for ASPIRE
CAPITAL ADVISORS) Exhibit 30 (ASPIRE GROWTH PARTNERS, “Aspire, Plan, Achieve”),
Exhibit 36 (ASPIRE), Exhibit 38 (ASPIRE FINANCIAL PARTNERS) Exhibit 39 (ASPIRE
PLANNING ASSOCIATES) Exhibit 40 (ASPIRE WEALTH GROUP), Exhibit 41 (ASPIRE
WEALTH MANGEMENT), Exhibit 42 (ASPIRE PLANNING GROUP LLC), Exhibit 43
(ASPIRE, “ASPIRE. AIM. ACHIEVE.”), 48 (ASPIRE WEALTH MANAGEMENT), Exhibit 49
(ASPIRE FINANICAL GROUP), Exhibit 53 (ASPIRE CAPITAL), Exhibit 54 (ASPIRE and
ASPIRE ADVISORS), 55 (ASPIRE), Exhibit 56 (ASPIRE and ASPIRE FINANCIAL
SERVICES), Exhibit 58 (ASPIRE FINANCE SERVICES), Exhibit 59 (ASPIRE WEALTH
BUILDERS), Exhibit 62 (ASPIRE BY TCI) and Exhibit 66 (ASPIRE FINANCIAL
ADVISORS).

Opposition No. 91254295
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threshold showing that the mark appears in advertising, in the form of current
listings in the yellow and white pages, carries the presumption that the service mark
is being used by third-parties in connection with the offering of the advertised
services. It therefore was impermissible to disregard the directory listings. Eli’s came
forward with no evidence that the businesses listed are not, in fact, using the mark,
or that their use has no effect on the consuming public, and consequently on the
strength of Eli’s registration.”); Anthony’s Pizza and Pasta Int’l Inc. v. Anthony’s Pizza
Holding Co., No. 91171509, 2009 WL 4075365, at *7 (TTAB 2009) (“The telephone
listings carry a presumption that the name ‘Anthony’s’ is being use by third parties
in connection with their restaurant services.”).
Opposer argues that “there is no evidence regarding the scope of the third party’s
use or advertising.”54 Generally, the “probative value of third-party trademarks
depends entirely upon their usage” and where “the ‘record includes no evidence of the
extent of [third-party uses] . . . [t]he probative value of this evidence is thus minimal.’”
Palm Bay, 396 F.3d at 1373 (citation omitted) (original emphasis in italics changed
to bold) (quoting Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 1338
(Fed. Cir. 2001)). But even where the record does not include particulars about the
extent of third-party uses in the marketplace evidence of widespread third-party use
may be powerful on its face to demonstrate “that consumers have been educated to
distinguish between different marks on the bases of minute distinctions.” Omaha
Steaks, 908 F.3d at 1324 (internal quotation marks omitted); Juice Generation,
54 Opposer’s Rebuttal Brief, 57 TTABVUE 20-21.

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794 F.3d at 1337, n.1 (evidence of “considerable number” of third-party marks may
be “powerful on its face”); Jack Wolfskin Ausrustung Fur Draussen GmbH & Co.
KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 1373, n.2 (Fed. Cir. 2015)
(discussing “voluminous evidence” of registration and use of paw print design
elements); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC,
No. 91217095, 2016 WL 7655551, at *7 (TTAB 2016) (“evidence of extensive use and
registration of a term by others as a mark, as is the case here, can be ‘powerful on its
face’”).
The record here includes evidence relevant to the extent of use of some of the third-
party marks. As noted above, 13 out of the 23 third parties identified above promote
themselves as regional businesses, located in different parts of the country.55 In
addition, Mr. Stone, Chief Risk and Data Science Officer for Opposer’s parent
corporation Atlanticus Holdings Corporation, testified that “credit unions are
generally much smaller institutions than bank[s]” and “are limited to a field of
membership based on occupation, association or community.”56 This testimony is
supported by the third-party webpages identified above promoting limited
membership eligibility and physical locations. When third-party uses are not in the
same trading area, consumers are unlikely to encounter overlapping uses and learn
to distinguish among them. Anthony’s Pizza, 2009 WL 4075365, at *7-8.
55 See entities listed above in items 2-3, 5-7, 10-13, 15-17, and 19.
56 Stone Rebuttal Declaration, 51 TTABVUE 6-8, ¶¶ 19-24, 26.

Opposition No. 91254295
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That said, most of the third-party websites in evidence promote online and mobile
banking, which can be done from anywhere. At least two third parties promote access
to over 30,000 ATMs and 5,000 shared banking or credit union locations suggesting
that the services are more broadly accessible than a certain geographic area.57 And
one third party promotes its ASPIRE checking account to college students as a service
that students can take with them when the relocate:
While they go to school, start their first job, or take that next adventure,
they can build their financial confidential …. The Aspire Checking
Account is packed with digital banking tools that allow them to bank
wherever they are. … So go ahead, help them open an account today,
and bring a piece of Fairfield County with them! … Start a relationship
with Fairfield County Bank that they can take with them no matter
where life brings them.58
Thus, there is evidence suggesting that consumers may encounter the cited ASPIRE
marks regardless of whether the uses may be tied to a specific geographic region and
membership.
We recognize that Opposer has successfully enforced rights in the ASPIRE mark
against some third parties.59 We further credit Mr. Stone’s testimony that:
• “[B]anking institutions are subject to high rates of consolidation, such that
there are fewer banks of all sizes each year. … This is particularly true for
‘community banks,’ which the FDIC defines as a smaller institution based on
asset size and other parameters. … Like banks, the number of credit unions is
similarly declining on a consistent basis each year.”60
57 Applicant’s Notice of Reliance, 42 TTABVUE 518-20, 536-40 (Exhibits 75 and 79).
58 Applicant’s Notice of Reliance, 42 TTABVUE 514-17 (Exhibit 74).
59 Stone Rebuttal Declaration, 51 TTABVUE 5-6, 52-65, 66, 171-80, 190-92, ¶¶ 13-17,
Exhibits 5-14, 35; Woodruff Rebuttal Declaration, 50 TTABVUE 25-26, ¶ 2, Exhibit 6.
60 Stone Rebuttal Declaration, 51 TTABVUE 6, 95-110, ¶¶ 19, 21, 23 and Exhibits 16-17
thereto consisting of reports from the Federal Deposit Insurance Corporation (“FDIC”). We

Opposition No. 91254295
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• “[C]redit unions are generally much smaller institutions than bank.”61
• “In weighing its trademark enforcement efforts, Opposer considers the
relevant size and scope of the institution and also accounts for this trend of
consolidation and closure because, as discussed above, many banks and credit
unions cease to do business in relatively short periods of time.”62
• Four third-party ASPIRE marks that Applicant disclosed during discovery and
on summary judgment “ceased to exist in the relatively short time since
disclosure.”63
Given the nature of the banking and financing industry, Opposer’s enforcement
strategy seems reasonable in theory, but in practice, it has resulted in a number of
third-party ASPIRE marks for “credit card services” and in-part identical and
otherwise substantially similar “banking and financing services” co-existing in the
marketplace. 2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 11.91 (5th ed. March 2026 update) (“It has been observed that an
active program of prosecution of infringers, resulting in elimination of others’ uses of
similar marks, enhances the distinctiveness and strength of a mark: ‘since no one else
uses a similar sounding name, plaintiff’s name looks and sounds all the more
unique.’”) (quoting Dictaphone Corp. v. Dictamatic Corp., 1978 WL 21441 (D. Or.
1978)).
take judicial notice of the contents of the FDIC reports. See Nieves & Nieves, 2015 WL 496132,
at *3.
61 Stone Rebuttal Declaration, 51 TTABVUE 8, ¶ 24.
62 Stone Rebuttal Declaration, 51 TTABVUE 8, ¶ 26.
63 Stone Rebuttal Declaration, 51 TTABVUE 9-10, 69-70, 139-65, ¶¶ 27-31 and Exhibits 12,
24-30.

Opposition No. 91254295
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As to conceptual weakness, the third-party uses and registrations show that the
word ASPIRE has been extensively adopted, registered and used as a trademark for
credit, banking and financing services, and thus has significance in the industry.
Even though we must presume that Opposer’s ASPIRE mark is an inherently
distinctive mark, 15 U.S.C. § 1057(b), we find that it is highly suggestive that
consumers of Opposer’s credit card services “aspire” to reach financial goals.64 Cf.
In re Planalytics, Inc., No. 76322156, 2004 WL 715031, at *4 (TTAB 2004) (“Clearly,
applicant’s mark [GASBUYER] describes a feature or characteristic of the services to
the extent that it immediately conveys that its services are intended for individuals
who purchase natural gas.”).
In sum, we find under the sixth DuPont factor that Opposer’s ASPIRE mark is
commercially and conceptually quite weak as the evidence shows it is common for
third parties to adopt and use marks comprised of the first term ASPIRE coupled
with a generic word, e.g. ASPIRE CHECKING, ASPIRE SAVINGS, ASPIRE
LENDING. See Juice Generation, 794 F.3d at 1338-39 (explaining that “evidence of
third-party use bears on the strength or weakness of an opposer’s mark” and that
“highly suggestive [marks] are entitled to a narrower scope of protection, i.e., are less
likely to generate confusion over source identification, than their more fanciful
counterparts.”).
64 See, e.g., Applicant’s Notice of Reliance, 42 TTABVUE 536-40 (Exhibit 79) (third party
Spero Financial promoting its ASPIRE CHECKING account services with the tagline “Reach
Your Financial Hopes and Aspirations”).

Opposition No. 91254295
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Similarity or Dissimilarity of the Marks
As explained above, the Court vacated that portion of the Prior Decision
addressing the first DuPont factor because comparing the marks “focuses on overall
commercial impression” and “reconsideration of the sixth DuPont factor may result
in a different determination of the mark’s commercial strength or weakness and affect
the overall commercial impression.” Apex Bank, 156 F.4th at 1236.
We reconsider under the first DuPont factor the “similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.” DuPont, 476 F.2d at 1361. We are mindful that the issue is not whether
the marks can be distinguished when subjected to a side-by-side comparison, but
rather whether the marks are sufficiently similar in terms of their overall commercial
impression that confusion as to the source of the services offered under the respective
marks is likely to result. 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 specific impression of trademarks. Geigy
Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 1007-08 (CCPA 1971);
L’Oreal S.A. v. Marcon, No. 91184456, 2012 WL 1267956, at *5 (TTAB 2012).
We do not predicate our analysis on a dissection of the involved marks; we consider
the marks in their entireties. Stone Lion Cap. Partners, L.P. v. Lion Capital LLP,
746 F.3d 1317, 1321 (Fed. Cir. 2014); 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

Opposition No. 91254295
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determining likelihood of confusion.”). It is settled, however, that one feature of a
mark may be more significant than another, and it is not improper to give more
weight to this dominant feature in determining the mark’s commercial impression.
In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985) (“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. Indeed, this type of analysis appears
to be unavoidable.”).
In terms of appearance, we find that the word ASPIRE is the dominant literal
element of Applicant’s marks because it is the first word in the mark and much larger
in size than the word BANK, which is generic for Applicant’s services and has been
disclaimed. See, e.g., Nat’l Data, 753 F.2d at 1058 (“That a particular feature is
descriptive or generic with respect to the involved goods or services is one commonly
accepted rationale for giving less weight to a portion of a mark ….”); Presto Prods.,
Inc. v. Nice-Pak Prods., Inc., No. 91074797, 1988 WL 252340, at *3 (TTAB 1988) (first
word “most likely to be impressed upon the mind of a purchaser and remembered”).
Given our finding under the sixth DuPont factor that consumers have had some
opportunity to distinguish among third-party ASPIRE marks for “credit card” and
substantially similar “banking and financing” services based on minute differences,
we give the generic word BANK and mountain peak designs in Applicant’s marks a
little more weight than we did in the Prior Decision. Still, we find that the marks in
their entireties appear similar.

Opposition No. 91254295
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Turning to sound, we find that the added word BANK and the mountain peak
design in Applicant’s marks do not aurally distinguish Applicant’s marks in any
significant way. Consumers are unlikely to verbalize the mountain peak design in
Applicant’s marks and, as explained in the Prior Decision, we find it likely that
consumers will shorten Applicant’s marks to ASPIRE when asking for or referring to
its services. See, e.g., In re Aquitaine Wine USA, LLC, No. 86928469, 2018 WL
1620989, at *7 (TTAB 2018) (“[C]onsumers often have a propensity to shorten marks”
when verbally asking for the identified goods or services and “[t]he verbal portion of
a word and design mark likely will appear alone when used in text and will be spoken
when requested by consumers.” ) (internal quotation marks omitted); In re Bay State
Brewing Co., No. 85826258, 2016 WL 1045677, at *3 (TTAB 2016) (consumers may
drop the highly descriptive term BLONDE when calling for TIME TRAVELER
BLONDE beer); L.C. Licensing, Inc. v. Berman, No. 78320850, 2008 WL 835278, at
*3 (TTAB 2008) (“[I]t is well settled that if a mark comprises both a word and a design,
then the word is normally accorded greater weight because it would be used by
purchasers to request the goods.”). To the extent consumers pronounce both literal
elements in Applicant’s marks, we find the marks still sound similar because the first
word ASPIRE in Applicant’s marks is the entirety of Opposer’s mark.
Turning to connotation and commercial impression, we take into account our
finding under the sixth DuPont factor that Opposer’s ASPIRE mark is quite weak
commercially and conceptually because of the number of third parties using marks
comprised of the first term ASPIRE, coupled with a generic word, e.g. ASPIRE

Opposition No. 91254295
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CHECKING, ASPIRE SAVINGS, ASPIRE LENDING, for credit, banking and/or
financing services. Apex Bank, 156 F.4th at 1236 (“[b]ecause commercial impression
informs the analysis under the first DuPont factor, … reconsideration of the sixth
DuPont factor may result in a different determination of the mark’s commercial
strength or weakness and affect the overall commercial impression.”).
With respect to connotation, one meaning of the word ASPIRE is “to ascend,”65
and one meaning of “ascend” is “[t]o move upward upon or along; climb: ascended the
mountain.”66 We find that the combination of the word ASPIRE with the mountain
peak design in Applicant’s marks, is likely to create a connotation and commercial
impression of ascending a mountain, which is slightly different from Opposer’s
ASPIRE mark that more generally means to ascend, soar or to seek, attain or
accomplish a particular goal. The generic word BANK in Applicant’s marks merely
emphasizes the nature of Applicant’s services. When we consider the marks as a
whole, the meanings and commercial impressions are not identical, but they are
overall similar. That said, because a number of third-party ASPIRE marks coexist in
the marketplace for credit, banking and financing services (including marks
comprised of ASPIRE + a generic term), the term BANK and the mountain peak
65 We take judicial notice of this meaning of the word “aspire.” MERRIAM-WEBSTER
DICTIONARY, www.merriam-webster.com/dictionary/aspire (last visited July 9, 2026). See,
e.g., In re Nextgen Mgmt., LLC, No. 88098031, 2023 WL 111145, at *4 n.5 (TTAB 2023) (“The
Board may take judicial notice of dictionary definitions, including online dictionaries which
exist in printed format or have fixed regular editions.”).
66 We take judicial notice that one meaning of the word “ascend” is “[t]o move upward upon
or along; climb: ascended the mountain[.]” THE AMERICAN HERITAGE DICTIONARY,
www.ahdictionary.com/word/search.html?q=ascend (last visited July 9, 2026).

Opposition No. 91254295
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design in Applicant’s marks may make more of a commercial impression on
consumers than if Opposer’s mark was not one of many in a crowded field.
Overall, we find the parties’ marks in their entireties are similar in appearance,
sound, connotation and commercial impression. However, taking into account the
significant weakness of the shared term ASPIRE, we find that consumers are likely
to notice and rely on the minor differences between the marks to distinguish them.
Weighing the DuPont Factors
Our final task is to weigh the DuPont factors for which there has been evidence
and argument and to “explain the results of that weighing.” Charger Ventures, 64
F.4th at 1384.
As explained above, our findings under the second, third, fourth and fifth DuPont
factors remain unchanged and are incorporated by reference herein. The second and
third DuPont factors weigh heavily in favor of finding a likelihood of confusion
because the goods, trade channels and consumers are in part identical.67 The fourth
and fifth DuPont factors remain neutral, and they do not affect our weighing.68
We have reconsidered the evidence under the first and sixth DuPont factors and
make different findings from those in the Prior Decision. We now find that Opposer’s
ASPIRE mark is both commercially and conceptually quite weak. The sixth DuPont
factor thus weighs heavily against finding a likelihood of confusion. Indeed, we find
that the heavy weight of the sixth factor is the dominant consideration in this case
67 Prior Decision, 59 TTABVUE 35.
68 Id. at 40, 62.

Opposition No. 91254295
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and “affect[s] the overall commercial impression” of the parties’ marks under the first
factor. Apex Bank, 156 F.4th at 1236. That is, although the parties’ marks are similar
under the first factor, consumers are likely to rely on the minor differences between
the parties’ marks (i.e. the addition of the generic word BANK and mountain peak
design in Applicant’s marks) to distinguish them in the crowded field of ASPIRE
marks. The first factor therefore also weighs against finding a likelihood of confusion.
Juice Generation, 794 F.3d at 1338 (an “applicant’s mark can come closer” to a weak
mark “without causing a likelihood of confusion and … invading what amounts to its
comparatively narrower range of protection”); Kenner Parker Toys, Inc. v. Rose Art
Indus., Inc., 963 F.2d 350, 353 (Fed. Cir. 1992) (“[W]here a party uses a weak mark,
his competitors may come closer to his mark than would be the case with a strong
mark without violating his rights.”).
In sum, we find that the first DuPont factor and the dominant sixth factor
outweigh the second and third factors. We therefore find no likelihood of confusion
between Opposer’s mark ASPIRE for “credit card services” and Applicant’s marks
, , and for “banking and financing
services.”69
Decision: The opposition is dismissed under Section 2(d) of the Trademark Act,
15 U.S.C. § 1052(d).
69 To be clear, we would reach this same conclusion even if we had not considered the third-
party marks for retirement and financial planning and wealth management services.