NAAJ LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: April 21, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re NAAJ LLC
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Serial No. 98577734
_____
Michael D. Eisenberg of the Law Office of Michael D. Eisenberg,
for NAAJ LLC.
Robert Ratcliffe, Trademark Examining Attorney, Law Office 109,
Michael Kazazian, Managing Attorney.
_____
Before Lykos, Lebow and Brock,
Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
NAAJ LLC (“Applicant”) seeks to register on the Principal Register the standard
character mark READY, FETCH, GO! for “dog toys” in International Class 28.1
1 Application Serial No. 98577734, filed May 31, 2024 under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce. The mark
appears on the drawing page as “Ready, Fetch, GO!” but retains a claim as to standard
characters and not special form. See Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a) (setting
forth requirements for standard character mark); see also In re Calphalon Corp., No.
86356713, 2017 TTAB LEXIS 98 at *10-11 (applicant’s amendment of mark from SHARPIN
to SharpIn did not transform mark from standard character to special form).
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system in Portable Document Format (“PDF”). Citations to the record

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Applicant appealed the Trademark Examining Attorney’s final refusal to register
the mark on the grounds that Applicant’s mark so resembles the registered standard
character mark READY SET FETCH on the Principal Register for “Flying discs;
flying disc throwing apparatus; rubber balls; tennis balls; tennis ball throwing
apparatus” in International Class 28, that it is likely to cause confusion or mistake
or to deceive under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d).2
When it filed its notice of appeal, Applicant requested reconsideration, but the
Examining Attorney denied Applicant’s request and maintained the final refusal.
The appeal is briefed.3 For the reasons explained below, we affirm the refusal to
register.
also include references to TTABVUE, the Board’s online docketing system. See, e.g., Turdin
v. Trilobite, Ltd., No. 94002505, 2014 TTAB LEXIS 17, at *6 n.6.
This opinion cites decisions of the U.S. Court of Appeals for the Federal Circuit and the U.S.
Court of Customs and Patent Appeals by the pages on which they appear in the Federal
Reporter (e.g., F.2d, F.3d, or F.4th). For Board decisions, this opinion uses citations to the
Lexis® legal database, as well as the TTABVUE proceeding number, where available. See
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 101.03(a)(2) (2025)
for acceptable citation options to cases.
2 Registration No. 7156726 registered on September 5, 2023.
3 As reset by the Board, Applicant’s brief was due on November 3, 2025. 5 TTABVUE.
Applicant timely filed its brief on September 29, 2025. 6 TTABVUE. In view thereof,
Applicant’s motion to accept its late-filed brief has been given no consideration. 6 TTABVUE
25.
We further note that Applicant submitted third-party registrations with its brief. Any
materials not properly of record are untimely and have been given no consideration. See
Trademark Rules 2.142(d) and (d)(1), 37 C.F.R. §§ 2.142(d) and (d)(1). To the extent any of
the submissions duplicate evidence from the record, they are superfluous. The Board strongly
disapproves of this practice because it requires additional time to compare the registrations
against the record to determine admissibility. See In re Info. Builders Inc., No. 87753964,
2020 TTAB LEXIS 20, at *5 n.4 (attaching previously submitted evidence to an appeal brief
is unnecessary and impedes efficient disposition of the appeal by the Board), appeal
voluntarily dismissed, No. 20-1979 (Fed. Cir. Oct. 20, 2020); accord In re Jimenez, No.
97551823, 2025 TTAB LEXIS 441, at *14.

Serial No. 98577734
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I. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits the registration of a mark that:
[c]onsists of or comprises a mark which so resembles a
mark registered in the Patent and Trademark Office, … as
to be likely, when used on or in connection with the goods
of the applicant, to cause confusion, or to cause mistake, or
to deceive.
15 U.S.C. § 1052(d). Our determination under Section 2(d) is based on an analysis of
all of the probative evidence of record bearing on the likelihood of confusion. In re E.
I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in
B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015); see also In re
Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023); In re Majestic Distilling
Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003). We have considered each DuPont factor for
which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376,
1379 (Fed. Cir. 2019). When analyzing these factors, the overriding concerns are not
only to prevent buyer confusion as to the source of the goods, but also to protect the
registrant from adverse commercial impact due to use of a similar mark by a
newcomer. See In re Shell Oil Co., 992 F.2d 1204, 1207 (Fed. Cir. 1993).
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1353 (Fed.
Cir. 2011). “Each case must be decided on its own facts and the differences are often
subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973). In
any likelihood of confusion analysis, two key considerations are the first and second
DuPont factors, the similarity or dissimilarity of the marks and the goods. See In re
i.am.symbolic, LLC, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (citing Herbko Int’l, Inc. v.

Serial No. 98577734
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Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)); see also In re Embiid,
No. 88202890, 2021 TTAB LEXIS 168, at *10 (“[T]he fundamental inquiry mandated
by § 2(d) goes to the cumulative effect of differences in the essential characteristics of
the goods and differences in the marks.”) (quoting Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976)). These factors, as well as
others, are discussed below.
A. The Goods
In this case, we begin with the second DuPont factor which considers the
similarity of the goods based on the identifications in the application and cited
registration. See In re Detroit Athletic Co., 903 F.3d 1297, 1307 (Fed. Cir. 2018); Stone
Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014);
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002).
Although the Examining Attorney analyzes the second DuPont factor on the
premise that the respective goods are not identical, the language of the identifications
shows otherwise. Applicant’s goods are identified as “dog toys,” and the cited
registration identifies, inter alia, “rubber balls” and “flying discs.” The record
establishes that rubber balls and flying discs are types of dog toys.4 Because the cited
identification contains no limitation as to the nature, purpose, or intended use of
“rubber balls” and “flying discs,” we must construe it broadly to encompass all types
of rubber balls and flying discs, including those made specifically for dogs. See Paula
Payne Prods. Co. v. Johnson Publ’g Co., 473 F.2d 901, 902 (CCPA 1973) (Board must
4 See third-party marketplace evidence discussed infra in Section I.A.

Serial No. 98577734
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“give full sweep” to an identification of goods regardless of registrant’s actual
business). Rubber balls and flying discs for dogs are therefore encompassed within
the broader category of “dog toys,” making the goods legally identical in part. See,
e.g., In re Hughes Furniture Indus., Inc., No. 85627379, 2015 TTAB LEXIS 65, at *10
(holding that applicant’s broadly worded identification of “furniture” encompassed
registrant’s more narrowly identified “residential and commercial furniture”).
Alternatively, the Examining Attorney has shown that the goods are related
through third-party evidence. The Examining Attorney made of record approximately
twenty-nine (29) use-based, third-party registrations showing that the same entities
have registered single marks identifying both “dog toys” on one hand, and either
“rubber balls” and/or “flying discs” on the other.5 Third-party registrations that cover
goods from both a cited registration and an applicant’s application are relevant to
show that the goods are of a type that may emanate from a single source under one
mark. In re Guild Mortg. Co., 86709944, 2020 TTAB LEXIS 17, at *13; In re Mucky
Duck Mustard Co., No. 603019, 1988 TTAB LEXIS 11, at *6-7, aff’d per curiam, 864
F.2d 149 (Fed. Cir. 1988). In this case, “[t]he [third-party] registrations are sufficient
in both quality and quantity to provide a reasonable predicate supporting the
Examining Attorney’s position.” In re Country Oven, Inc., No. 87354443, 2019 TTAB
5 April 18, 2025 Final Office Action, at TSDR 8-58 (Registration Nos. 6865087, 7599067,
6884605, 7073822, 5579204, 7644271, 7687365, 7661296, 6773608, 5719017, 7140039,
5155996, 7140039, 5155996, 7355321, 7487682, 6763431, 6265887, 6326649, 7368763,
6862761, 6510640, 7260646, 6620790, 7224964, 6663927, 7571379, 6808414, 7639700,
7711594, and 7372979).

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LEXIS 381, at *12.
The Examining Attorney also submitted third-party marketplace evidence
showing consumer exposure to “dog toys” and “rubber balls” and/or “flying discs” from
a common source under the same trademark. See Detroit Athletic. Co., 903 F.3d at
1307 (crediting third-party website evidence that retailers use the same mark for the
goods at issue because “[t]his evidence suggests that consumers are accustomed to
seeing a single mark associated with a source that sells both.”). The following
evidence is most relevant:
Kong offers the “Kong Ball with Hole” which is described
as “an extra bouncy, durable ball … made with natural
KONG rubber for rounds of bouncing, fetching and
chewing”; the “KONG Classic Red Rubber ball for fetching
fun;” the “Kong Puppy Flyer” flying disc “for puppies that
are learning to play fetch”; and the “KONG Rubber Goodie
bone;6
Nerf offers the “Nerf Dog Toss and Tug Ring Dog Toy
Flying Disc”; the “Nerf Dog Nylon Flyer Dog Toy Flying
Disc”; and “Nerf Dog Rainbow Vortex Chain Tug Dog Toy”;7
Amazon offers West Paw branded products such as the
“WEST PAW Zogoflex Zisc Dog Flying Disc”; the “WEST
PAW Seaflex Sailz Dog Toy Flying Disc”; and the “WEST
PAW Seaflex Drifty Dog Toy”;8 and
Chewy, an online pet store website, offers the “Ruff Dawg
Ball XL,” advertised as a “Ball Tough Dog Chew Toy” and
the “Ruff Dawg Big Dawg Barbell Tough Chew toys.”9
6 April 18, 2025 Final Office Action at TSDR 92-97.
7 April 18, 2025 Final Office Action at TSDR 105 and 110.
8 April 18, 2025 Final Office Action at TSDR 113-116.
9 April 18, 2025 Final Office Action at TSDR 127-129.

Serial No. 98577734
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In sum, the goods are legally identical in part. And even if they were not, we have
more than ample third-party registration and marketplace evidence showing
relatedness. The second DuPont factor weighs in favor of finding a likelihood of
confusion.
B. The Established, Likely-to-Continue Channels of Trade
Next, we consider the third DuPont factor, “the similarity or dissimilarity of
established, likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. As with
the second DuPont factor, we are guided by the language in the identification of the
application and cited registration. See Detroit Athletic Co., 903 F.3d at 1307; Stone
Lion, 746 F.3d at 1323; Hewlett-Packard, 281 F.3d at 1267.
First, based on our finding that “rubber balls” and “flying discs” are subtypes of
“dog toys,” rendering the goods legally identical, we find that the established, likely-
to-continue trade channels of trade and classes of consumers are the same. Since both
the application and cited registration are unrestricted as to trade channels, we must
presume that those particular goods travel in the same ordinary trade and
distribution channels and will be marketed to the same potential consumers, namely
dog owners/caregivers, dog rescue and foster organizations, and dog daycare and
boarding facilities. See In re Viterra, Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (Board
was entitled to rely on presumption that, absent restrictions, legally identical goods
travel in the same channels of trade to the same class of purchasers); In re Yawata
Iron & Steel Co., 403 F.2d 752, 771 (CCPA 1968) (where there are legally identical
goods, the channels of trade and class of purchasers is considered to be the same).

Serial No. 98577734
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Alternatively, even if we were to assume that the goods are related rather than
legally identical, we would reach the same conclusion. Neither the registration nor
the application contains any limitations on the channels of trade or classes of
purchasers. As such, Applicant’s and Registrant’s “dog toys,” “rubber balls,” and
“flying discs” presumptively move in all normal trade channels and to consumers that
purchase such goods. See Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719
F.3d 1367, 1373 (Fed. Cir. 2013). The record demonstrates that the normal trade
channels for “dog toys,” “flying discs” and “rubber balls” are online retail websites
specializing in dog products, such as Clean Run10 and Chewy,11 which carry such
items from various brands. It also includes the business-to-consumer (“B2C”)
websites discussed above. Collectively, this evidence shows that the classes of
consumers overlap to include dog owners.
Whether the goods are identical or merely related, the result is the same: the trade
channels and classes of consumers overlap. The third DuPont factor favors a
likelihood of confusion.
C. The Marks
Now we direct our attention to the first DuPont factor, the similarity or
10 April 18, 2025 Final Office Action at TSDR 75-76 (printouts from www.cleanrun.com
offering for sale Doggone branded dog toys as well as Chuckit, Booda, and Hyperlife flying
discs).
11 April 18, 2025 Final Office Action at TSDR 135-188 (printouts from chewy.com offering for
sale dog toys, rubber balls, and flying discs under various brand names).
While the record includes evidence that the online retailer Amazon sells both Applicant’s
and Registrant’s goods, we do not deem this as appropriate overlapping trade channel
evidence given the wide variety of products sold on Amazon.

Serial No. 98577734
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dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. See, e.g., Charger Ventures, 64 F.4th at 1380 (citing
DuPont, 476 F.2d at 1361); Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee en 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005) (same). “Similarity in any one
of these elements may be sufficient to find the marks confusingly similar.” In re Inn
at St. John’s, LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13 (quoting In re Davia,
No. 85497617, 2014 TTAB LEXIS 214, at *21-24), aff’d per curiam, 777 F. App’x 516
(Fed. Cir. 2019); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732
(CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone
is likely to cause confusion.”) (citation omitted).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d 747, 751 (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 [Registrant and Applicant].” Cai v.
Diamond Hong, Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018) (quoting Coach Servs. Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012) (internal quotation
marks and citation omitted)).
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, the decision must be based on the entire marks, not just part of
the marks. In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985); see also

Serial No. 98577734
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Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981) (“It is
axiomatic that a mark should not be dissected and considered piecemeal; rather, it
must be considered as a whole in determining likelihood of confusion.”). “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)).
We now compare Applicant’s mark READY, FETCH, GO! with the cited mark
READY SET FETCH, both in standard characters. Applicant argues that the marks
look and sound different because the cited mark contains the word SET and does not
include the word GO or an exclamation point. Applicant also contends that the marks
differ in connotation and commercial impression because READY, FETCH, GO!
conveys “a spirited, call-to action voice” that “signals energy and enthusiasm,”
whereas the cited mark READY SET FETCH “introduces a more restrained, perhaps
even instructive tone.”12 Elaborating, Applicant maintains that the exclamation point
and the inclusion of the word GO! at the end of the phrase “gives the mark a joyful,
commanding presence closely aligned with the action of play and engagement
between a dog and its owner” while the cited mark “reads as a single command or
product title, not a playful interaction.”13
12 Applicant’s Brief, 6 TTABVUE 27.
13 Applicant’s Brief, 6 TTABVUE 27.

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Applicant’s arguments are unpersuasive. Both marks are short, three-word
phrases that evoke the familiar idiom “Ready, set, go,” making them similar in
structure and cadence. Each mark begins with READY and incorporates the word
FETCH. While FETCH appears in a different position in each mark, that distinction
does not significantly alter the marks’ appearance or sound. Nor does the substitution
of GET for GO appreciably change the marks in sight or sound.
As to connotation and commercial impression, both marks are a clever play on the
expression “Ready, set, go.” The record includes evidence demonstrating that this
expression is well-known:
The U.S. English version of THE CAMBRIDGE DICTIONARY
defines “ready, set, go” as an idiom that is “[s]aid at the
start of a race, especially one for children.” It offers the
following examples: “When we were lined up at the starting
line, the teacher shouted ‘ready, set, go!’”; “As soon as my
dad said ‘ready, set, go’ we all pedaled as fast as we could
down the sidewalk.”14
THE MERRIAM-WEBSTER DICTIONARY entry for “(get) ready,
(get) set, go” is “a command to start a race.”15
THE FREE DICTIONARY defines “ready, set, go” as “an
instruction to begin something, typically some kind of
competition” and is “primarily heard in the U.S.”16
THE U.S. DICTIONARY defines “ready, set, go” as describing
“someone [who] is eager or prepared to do something” or “to
start something quickly and without hesitation.” The entry
also states that “[t]he phrase also pops up in various forms
14 December 30, 2024 Office Action at TSDR 7 (printout for the entry “ready, set, go” from
www.dictionary.cambridge.org/us/dictionary/English accessed on 12/30/24).
15 December 30, 2024 Office Action at TSDR 17 (printout for the entry for “(get) ready, (get)
set, go” from www.merriam-webster.com/dictionary accessed on 12/30/24).
16 April 18, 2025 Office Action at TSDR 189 (printout for the entry “ready, set, go” from
https://idioms.thefreedictionary.com accessed on 4/18/2025).

Serial No. 98577734
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of media, from TV shows to video games to heighten
tension and excitement.”17
GRAMMARIST explains that “On your mark, get set, go!” and
“ready, set, go!” are synonymous phrases with “roots in foot
races and running” but may also be used “to start a
competition that is not a race.”18
Against this backdrop, Applicant’s mark READY, FETCH, GO! and Registrant’s
mark READY SET FETCH each call to mind the idiom “Ready, set, go” in a novel
way. The shared term FETCH projects the same connotation by suggesting that a pet
dog is ready to play a game of fetch with a dog toy, stick, ball or flying disc.
We further find that neither mark has a dominant element. Rather, each mark is
a unitary phrase whose elements are “inseparable” and projects a single commercial
impression. Cf. Dena Corp. v. Belvedere Int’l, Inc., 950 F.2d 1555, 1561 (Fed. Cir.
1991) (for purposes of disclaimer requirement, finding EUROPEAN FORMULA and
design for cosmetic products not unitary since the “elements are not so merged
together that they cannot be regarded as separate” and the proximity of the words to
the design feature “does not endow the whole with a single, integrated, and distinct
commercial impression.”). Even when the wording is slightly different, as it is here,
if the marks convey the same idea, meaning or commercial impression, they may still
be similar. See, e.g., Proctor & Gamble Co. v. Conway, 419 F.2d 1332, 1335 (CCPA
1970) (holding MISTER STAIN likely to be confused with MR. CLEAN on cleaning
products because the words “stain” and “clean” “pertain to a state of relative
17 September 4, 2025 Denial of Request for Reconsideration at TSDR 38 (printout for the
entry for “ready, set, go” from www.usdictionary.com accessed on 9/4/2025).
18 April 18, 2025 Office Action at TSDR 192 (https://grammarist.com accessed on 4/18/2025).

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cleanliness”); In re M. Serman & Co., 1984 TTAB LEXIS 74, at *3 (holding CITY
WOMAN for ladies’ blouses likely to be confused with CITY GIRL for a variety of
female clothing); H. Sichel Sohne, GmbH v. John Gross & Co., 1979 TTAB LEXIS 70,
at *10 (holding BLUE NUN for wines likely to be confused with BLUE CHAPEL for
the same goods noting that “the prayer activity and meditation in the daily life of a
nun very frequently takes place in a rather small edifice or structure known as a
chapel”). Such is the case here where consumers are likely to recognize both phrases
incorporating the word “fetch” as a playful variation of the expression “Ready, set,
go.”
Finally, although Applicant’s mark includes commas and an exclamation point
while Registrant’s does not, such minor differences in punctuation do not materially
distinguish the marks in either sound, appearance, connotation or commercial
impression. “Punctuation, such as quotation marks, hyphens, periods, commas, and
exclamation marks, generally does not significantly alter the commercial impression
of the mark.” Peterson v. Awshucks SC, LLC, No. 92066957, 2020 TTAB LEXIS 520,
at *53. Here, the exclamation point in Applicant’s mark merely reflects the
imperative nature of this phrase. Cf. In re Litehouse, Inc., No. 78494701, 2007 TTAB
LEXIS 20, at *9 (the presence of the exclamation points in the mark
CAESAR!CAESAR! fails to negate the mere descriptiveness of the mark as a whole
as applied to salad dressings.). The commas present in Applicant’s mark do not
distinguish the marks either and are likely to be ignored by consumers.

Serial No. 98577734
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Overall, the marks are similar in appearance and sound, and project a similar, if
not identical, connotation and commercial impression. Consumers “have but dim
recollections from having previously seen or heard one or the other of the involved
marks.” Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d 1391, 1393 (CCPA 1969).
The first DuPont factor weighs in favor of finding a likelihood of confusion.
D. The number and nature of similar marks in use on similar goods
We now address the number and nature of similar marks in use on similar goods
under the sixth DuPont factor. DuPont, 476 F.2d at 1361. This factor “is a measure
of the extent to which other marks weaken the assessed mark,” Spireon, Inc. v. Flex
Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023), and indicates whether it is “entitled to only
a narrow scope of protection.” Omaha Steaks Int’l, Inc. v. Greater Omaha Packing
Co., 908 F.3d 1315, 1324 (Fed. Cir. 2018) (quoting Palm Bay, 396 F.3d at 1373).
“When a field is crowded with similar marks, the theory is that customers will be
more adept at distinguishing marks from each other and are less likely to be confused
by similar marks.” Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1235 (Fed. Cir. 2025)
(citing Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1338 (Fed. Cir.
2015)).
“[T]he strength of a mark is not a binary factor” and “varies along a spectrum from
very strong to very weak.” Id. (internal citations omitted). “The weaker [the
registrant’s] mark, the closer [an applicant] mark can come without causing a
likelihood of confusion and thereby invading what amounts to its comparatively
narrower range of protection.” Id. (internal citations omitted).

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

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We begin by addressing Applicant’s assertion that the cited mark READY SET
FETCH is not inherently distinctive. Applicant is mistaken. The cited mark is
registered on the Principal Register without a claim of acquired distinctiveness, and
thus carries a presumption under Trademark Act Section 7(b), 15 U.S.C. § 1057(b),
that it is inherently distinctive. See, e.g., New Era Cap Co. v. Pro Era, LLC, No.
91216455, 2020 TTAB LEXIS 199, at *29. This does not, however, prevent Applicant
from disputing the mark’s conceptual strength.
Applicant argues that variations of the idiom “Ready, set, go” are widespread in
the toy and game industry. Applicant introduced the following third-party
registrations from six (6) different registrants purporting to show conceptual
weakness: READY SET DANCE in both word mark and stylized format (Registration
Nos. 6010110 and 6121044); READY SET DISCOVER! (Registration No. 6342882);
COMMONWEALTH READY-SET-SNUGGLE (Registration No. 3441199);
READYGO (Registration. No. 7732422); YETI, SET, GO! (Registration No. 5633055);
and READY.SIT.GO! (Registration No. 6609684).19 Applicant further argues that the
word “fetch” is “highly descriptive of the functionality of products like tennis balls,
throwing discs, or ball launchers,”20 and that when considered in tandem with the
third-party registration evidence, the mark is conceptually weak.
Third-party registrations may “prove that some segment of a mark has a normally
understood and well recognized descriptive or suggestive meaning, leading to the
19 March 28, 2025 Response to Office Action at TSDR 15-35.
20 Applicant’s Brief, 6 TTABVUE 29.

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conclusion that that segment is relatively weak” in connection with the goods or
services. Juice Generation, 794 F.3d at 1339 (internal quotation omitted). Even if
“there is no evidence of actual use” of “third-party registrations,” such registrations
“may be given some weight to show the meaning of a mark in the same way that
dictionaries are used.” Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 917 (CCPA
1976).
From both a quantitative and qualitative perspective, Applicant’s evidence falls
short. Registration No. 5633055 for the mark YETI, SET, GO! was cancelled on July
4, 2025 for failure to file a Section 8 affidavit/declaration of use or excusable nonuse.
“The existence of a cancelled registration— particularly one cancelled for failure to
provide a declaration of continued use—does not tend to show that the cited mark is
weak due to third-party use.” Inn at St. John’s, 2018 TTAB LEXIS 170, at *9.
To fully assess the probative value of the remaining third-party registrations, a
“controlling inquiry is the extent of third-party marks in use on ‘similar’ goods or
services’ offered to ‘the relevant public.’” Omaha Steaks, 908 F.3d at 1324 (citing
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir.
1992)). The goods identified in Registration No. 6609684 for the mark
READY.SIT.GO! consist of elliptical exercise machines, products that bear no
relationship whatsoever to “flying discs” or “rubber balls.”
This leaves us with essentially four third-party registrations for toys and/or
games. “[T]he sixth DuPont factor does not require identical goods—only similar
ones.” Apex Bank, 156 F.4th at 1236. While these registrations are relevant because

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they involve similar goods, none of the marks incorporate the word “fetch,” making
them less similar than the cited mark. The omission of the term “fetch” is critical
because of the unique connotation of that word in connection with dog toys. As a
result, although the remaining third-party registered marks are a homage to the
phrase “Ready, set, go,” none project the same meaning as the cited mark.
Applicant has not shown that the cited mark is conceptually weak in connection
with the identified goods or goods related thereto, making the cited mark deserving
a lesser scope of protection. The sixth DuPont factor is neutral.
E. Lack of actual confusion and concurrent use
Lastly, we address Applicant’s argument there is no known evidence of actual
confusion, either between Applicant’s and Registrant’s marks or among the third-
party registered marks discussed above. Applicant’s contention implicates the
seventh DuPont factor, the “nature and extent of any actual confusion,” and the
eighth DuPont factor, “length of time during and conditions under which there has
been concurrent use without evidence of actual confusion.” DuPont, 476 F.2d at 1361.
Unlike the second and third DuPont factors, these factors require us to look at actual
market conditions, to the extent there is evidence of such conditions of record. In re
Guild Mortg. Co., 2020 TTAB LEXIS 17, at *19; see also New Era, 2020 TTAB LEXIS
199, at *29. In other words, for the absence of actual confusion to be probative, there
must have been a “significant opportunity” for confusion to have occurred. Barbara’s
Bakery Inc. v. Landesman, No. 76308993, 2007 TTAB LEXIS 9, at *14.

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Applicant’s argument is flawed in several respects. First, Applicant conflates the
sixth DuPont factor, which looks at the impact of third-parties operating in the
marketplace as well as third-party registrations for similar marks, with the seventh
and eighth DuPont factors which examine the marketplace impact of Applicant and
Registrant. The seventh and eighth factors involve real-world conditions, focusing on
whether Applicant’s and Registrant’s marks have in fact coexisted; if so, whether they
coexist in the same market; and whether consumers were in fact confused through,
for example, misdirected emails or calls. These factors do not look to third-party use
or registration of the cited mark or components thereof.
A second shortcoming with Applicant’s argument is that the involved application
was filed based on a bona fide intent to use the mark in commerce, and Applicant did
not introduce any evidence that it has commenced use of its mark in connection with
the goods identified in its intent-to-use application. Nor did Applicant submit any
evidence regarding Registrant’s actual use in the marketplace of its registered mark
in connection with any of its identified goods. It is therefore no surprise that there is
no evidence of actual consumer confusion between Applicant’s and Registrant’s
marks since there has been no opportunity for coexistence.
In view of the foregoing, the seventh and eighth DuPont factors are neutral.
F. Conclusion – Weighing and Balancing the DuPont factors
The final step in analyzing likelihood of confusion is to assess our findings under
the DuPont factors discussed above and determine whether, on balance, confusion is

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likely. See Charger Ventures LLC, 64 F.4th at 1379.
We have carefully considered all of the evidence made of record, as well as all of
the arguments related thereto. Each of the DuPont factors we have considered points
in the same direction. The first DuPont factor weighs in favor of a likelihood of
confusion because overall, the marks are similar in sound, appearance, meaning and
commercial impression. The second and third factors also tip the scale in favor of a
likelihood of confusion because the goods are closely related and marketed in
overlapping trade channels to the same classes of consumers. The sixth factor is
neutral because Applicant has failed to show that the cited mark is conceptually or
commercially weak. The seventh and eighth factors are also neutral. With no factors
weighing against a likelihood of confusion, we conclude that confusion is likely.
Decision: The Section 2(d) refusal is affirmed.