Ayoub, Inc v. Danco Incorporated

This Opinion is Not a
Precedent of the TTAB
Mailed: May 28, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Ayoub, Inc.
v.
Danco Incorporated
_____
Cancellation No. 92080469
_____
Joshua A. Glikin and Lauren Mistretta Upton of Shulman Rogers, P.A,
for Ayoub, Inc.
Joseph L. Meadows and Howard N. Shipley of Gordon Rees Scully Mansukhani,
LLP, for Danco, Incorporated.
Before Lykos, Goodman, and Bradley,
Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
On September 2, 2022, Ayoub, Inc. (“Petitioner”) filed a consolidated Petition to
Cancel1 the following two registrations shown below owned by Danco Incorporated
(“Respondent”), each for services identified as “Retail store services featuring carpets,
1 “When appropriate, a party may seek to cancel, in a single (i.e., ‘consolidated’) petition for
cancellation, different registrations owned by the same defendant.” TRADEMARK TRIAL AND
APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 305.01 (“Consolidated Complaint”)
(2025) (citing Trademark Rule 2.112(b), 37 C.F.R. § 2.112(b)).

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rugs and flooring” in International Class 35; and “Carpet, rug, furniture and floor
cleaning services” in International Class 37:
• Registration No. 56532452 for the composite mark displayed below,
registered on the Principal Register, with a disclaimer of “1952,” “Original”
and “Carpet Service” apart from the mark as shown (“Composite Mark”).
• Registration No. 55998383 for the standard character mark
AYOUB CARPET SERVICE with a disclaimer of CARPET SERVICE apart
from the mark as shown (“Word Mark”). The mark is registered on the
Principal Register under Trademark Act Section 2(f), 15 U.S.C. § 1052(f).4
During ex parte examination of the Word Mark, the Trademark Examining
Attorney refused registration on the Principal Register on the ground that the mark
2 Registered on January 15, 2019 based on an application filed on March 8, 2018 under
Trademark Action Section 1(a), 15 U.S.C. § 1051(a), alleging 2002 as the date of first use
anywhere and 2013 as the date of first use in commerce for both classes of services. The
description of the mark is as follows: “The mark consists of the letters ‘ACS’ and numbers –
’1952’- centered in concentric background circles and the words ‘The Original’, disposed over
‘Ayoub’ in bold, disposed over ‘Carpet Service.’” Color is not claimed as a feature of the mark.
During the pendency of this proceeding, the USPTO’s Post Registration Division accepted
Respondent’s Declaration of Use under Trademark Act Section 8, 15 U.S.C. § 1058, on April
23, 2024.
3 Registered on November 6, 2018 based on an application filed on March 8, 2018 under
Trademark Act Section 1(a), 15 U.S.C. § 1051(a), alleging April 10, 1987 as the date of first
use anywhere and in commerce for both classes of services. During the pendency of this
proceeding, the USPTO’s Post Registration Division accepted Respondent’s Declaration of
Use under Trademark Act Section 8, 15 U.S.C. § 1058, on January 26, 2024.
4 Section 2(f) of the Trademark Act provides that “nothing … shall prevent the registration
of a mark used by the applicant that has become distinctive of the applicant’s goods [or
services] in commerce.” 15 U.S.C. § 1052(f).

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is primarily merely a surname within the meaning of Trademark Act Section 2(e)(4),
15 U.S.C. § 1052(e)(4). To obviate the refusal, Respondent amended the application
to seek registration on the Principal Register under Section 2(f) based on an averment
that the mark had become distinctive of the services through substantially exclusive
and continuous use in commerce for at least the five years immediately before June
26, 2018, the date the statement was made. No additional evidence of acquired
distinctiveness was submitted during prosecution.5 See Trademark Rule 2.41(a)(3),
37 C.F.R. § 2.41(a)(3).6 Respondent’s averment was accepted as sufficient evidence of
acquired distinctiveness.
By way of its Second Amended Petition to Cancel,7 Petitioner seeks to cancel both
registrations on the grounds that: (1) Respondent’s marks are likely to cause
confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with
Petitioner’s previously used and registered standard character mark AYOUB N&H
for “retail carpeting and rug stores” in International Class 35, and “carpet and rug
5 “It bears noting that the USPTO has a longstanding practice of allowing registration of
surnames under Section 2(f) upon a showing of substantially exclusive and continuous use of
the name as a mark in regulable commerce for five years and of the applicant’s belief that
such use has caused the mark to become distinctive of its goods.” In re Adlon Brand GmbH
& Co. KG, No. 85831682, 2016 TTAB LEXIS 526, at *17 n.33.
6 Other evidence may include “verified statements, depositions, or other appropriate evidence
showing duration, extent, and nature of the use in commerce and advertising expenditures
in connection therewith (identifying types of media and attaching typical advertisements),
and verified statements, letters or statements from the trade or public, or both, or other
appropriate evidence of distinctiveness.” Id.
7 42 TTABVUE 15-20.
Citations to the record throughout the decision include references to TTABVUE, the Board’s
online docketing system. The number preceding “TTABVUE” corresponds to the docket entry
number; the number(s) following “TTABVUE” refer to the page number(s) of that particular
docket entry.

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cleaning” in International Class 37;8 and (2) Respondent’s marks are primarily
merely surnames within the meaning of Section 2(e)(4) of the Trademark Act and
have not acquired distinctiveness under Section 2(f) of the Trademark Act.9
In its Answer to the operative complaint, Respondent admitted that “[t]he owners
of Petitioner and Registrant share the surname Ayoub and are related by blood, but
their businesses are and have always been owned, operated, and managed
independently.”10 Otherwise, Respondent denied the salient allegations.
Respondent also asserted the affirmative defenses of laches and unclean hands as
well as various putative defenses,11 which we construe as amplifications of its
denials.12 See Mars Generation, Inc. v. Carson, No. 91224726, 2021 TTAB LEXIS 386,
at *4 (amplifications of denials are not true affirmative defenses). Insofar as the
defense of unclean hands was not pursued at trial or in Respondent’s brief, it is
8 Registration No. 5215906, issued June 6, 2017 on the Principal Register, based on an
application filed on January 12, 2013 under Trademark Action Section 1(a), 15 U.S.C.
§ 1051(a), alleging January 1, 1991 as the date of first use anywhere and date of first use in
commerce for both classes of services. Petitioner’s combined Sections 8 and 15 Declaration of
Use and Incontestability was accepted on December 23, 2022.
9 Second Amended Petition to Cancel ¶¶ 11-24; 42 TTABVUE 18-20. In the First Amended
Petition to Cancel, Petitioner asserted an insufficiently pleaded fraud claim (4 TTABVUE 6-
7), which the Board struck sua sponte pursuant to Fed. R. Civ. P. 12(f). See Board Order (Feb.
28, 2023); 14 TTABVUE 13-14.
10 Second Amended Petition to Cancel ¶ 4; 42 TTABVUE 16, and Answer ¶ 4; 51 TTABVUE
2.
11 Those putative defenses are that (1) “Respondent has used the AYOUB CARPET SERVICE
trademark and trade name in commerce prior to any date on which Petitioner may rely for
its purported priority in the asserted AYOUB N&H mark”; and that (2) Respondent’s
Registration No. 5653245 for the Composite Mark “is registered on the Principal Register …
without a Section 2(f) claim of acquired distinctiveness, [and] [a]s such, the [Composite]
[M]ark is presumed to be inherently distinctive.” 51 TTABVUE 5-6.
12 Answer to Second Amended Petition to Cancel, “Affirmative Defenses.” 51 TTABVUE 5.

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waived.13 See, e.g., Keystone Consol. Indus. v. Franklin Inv. Corp., No. 92066927, 2024
TTAB LEXIS 290, at *5 n.10 (“Affirmative defenses that were asserted in an answer
but then not pursued at trial may be deemed impliedly waived, while affirmative
defenses that were never asserted may be deemed forfeited.”). However, Respondent
did pursue the affirmative defense of laches against Petitioner’s Section 2(d) claims14
alleging in part that Petitioner had prior actual knowledge of Respondent’s marks
based on the parties’ past interactions, prior federal district court litigation, and
Board Opposition No. 91211014 (“Prior Opposition”).15
The case is fully briefed.16 Petitioner, as plaintiff in this proceeding, bears the
burden of establishing its entitlement to a statutory cause of action and claims
against both classes of services identified in each of Respondent’s registrations by a
preponderance of the evidence. See, e.g., Stratus Networks, Inc. v. UBTA-UBET
Communs. Inc., 955 F.3d 994, 998 (Fed. Cir. 2020); see also N. Face Apparel Corp. v.
Sanyang Indus. Co., No. 91187593, 2015 TTAB LEXIS 328, at *32 (“Because each
class in Applicant’s multi-class application is, in effect, a separate application, we
consider each class separately [where appropriate], and determine whether Opposer
13 Answer ¶¶ 19-31; 51 TTABVUE 10-14.
14 Respondent did not argue laches in its brief against Petitioner’s claims that Respondent’s
Word and Composite Marks are primarily merely surnames lacking acquired distinctiveness.
We deem the laches defense waived against Respondent’s Composite Mark registered on the
Principal Register without such a claim. See Keystone Consol., 2024 TTAB LEXIS 290, at *4-
5 (affirmative defense deemed waived because not raised in respondent’s main brief).
15 Answer ¶¶ 3-18; 51 TTABVUE 7-10.
16 The Board grants Petitioner’s motion filed August 8, 2025 (84 TTABVUE) to withdraw its
reply brief filed on August 7, 2025 (82 TTABVUE) and replace it with a confidential,
unredacted version of Petitioner’s reply brief (85 TTABVUE) as well as a public, redacted
version (83 TTABVUE).

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has shown a likelihood of confusion with respect to each.”). Respondent bears the
same burden of proving its affirmative defense of laches asserted against Petitioner’s
Section 2(d) claim. See Fed. R. Civ. P. 8(c) (characterizing laches as an affirmative
defense); Bridgestone/Firestone Rsch. Inc. v. Auto. Club de L’Ouest de la France, 245
F.3d 1359, 1361 (Fed. Cir. 2001) (the party raising the affirmative defense has the
burden of proving it).
I. Summary of Disposition of Petitioner’s Claims and Respondent’s
Affirmative Defense of Laches
For the reasons explained below, the Board:
● Denies Petitioner’s claims asserted against Respondent’s Composite Mark
as set forth in Registration No. 5653245 for both services identified
in International Classes 35 and 37 that (1) the mark is primarily merely a surname
within the meaning of Section 2(e)(4), and (2) the mark is likely to cause confusion
under Section 2(d) of the Trademark Act, with Petitioner’s previously used and
registered standard character mark AYOUB N&H. In view of our determination
under Section 2(e)(4), the issue of whether Respondent’s Composite Mark has
acquired distinctiveness is moot.
● Grants Petitioner’s claim that Respondent’s standard character mark AYOUB
CARPET SERVICE as set forth in Registration No. 5599838 is primarily merely a
surname within the meaning of Section 2(e)(4) of the Trademark Act that has not
acquired distinctiveness under Section 2(f) for the identified services in both
International Classes 35 and 37, and does not consider Petitioner’s Section 2(d) claim

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in light of that determination. See Yazhong Inv. Ltd. v. Multi-Media Tech Ventures,
Ltd., No. 92056548, 2018 TTAB LEXIS 168, at *44 (Board has discretion “to decide
only those claims necessary to enter judgment and dispose of the case”).
● In view of the disposition of Petitioner’s claims above, finds Respondent’s
affirmative defense of laches as to Petitioner’s Section 2(d) claims against both the
Composite Mark and the Word Mark moot.
II. Pleading of Petitioner’s Section 2(e)(4) Claims under the Trademark
Act
As a preliminary matter, we address a pleading issue Respondent raises for the
first time in its trial brief. Respondent argues that Petitioner’s Second Amended
Petition to Cancel fails to adequately plead claims under Section 2(e)(4) against
Respondent’s Word Mark and Composite Mark because “Ayoub is not the mark in
this case.”17 Petitioner’s claims against both registrations under Section 2(e)(4)
consist of the following allegations:18
18. The primary significance to the purchasing public of Respondent’s
marks, ACS – 1952 – THE ORIGINAL AYOUB CARPET SERVICE
(Registration No. 5,653,245) (emphasis in original) and AYOUB
CARPET SERVICE (Registration No. 5,599,838), when viewed in
relation to the goods or services described in both Registrations, is that
of the surname, Ayoub.
19. Respondent’s owner is named Daniel Ayoub.
20. The surname Ayoub is not rare. Indeed, many businesses even in the
Washington, D.C. metropolitan area where Respondent does business
operate, and at the time that Respondent applied for the marks at issue
here, under multiple names incorporating the surname Ayoub.
17 Respondent’s Brief, p. 32-33, 81 TTABVUE 40-41.
18 Second Amended Petition to Cancel, 42 TTABVUE 19.

Cancellation No. 92080469
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21. “Ayoub” does not have any other recognized meaning other than as
a surname.
22. “Ayoub” also has the “look and feel” of a surname.
23. The surname Ayoub was not, at any time prior to the date that it
applied for or obtained Registration Nos. 5,653,245 and 5,599,838, and
even presently is not, distinctive of Respondent’s goods and services.
24. Respondent had not acquired distinctiveness through substantially
exclusive use of Ayoub as of the date that it applied for the marks at
issue, and still has not acquired such distinctiveness.
We construe Respondent’s assertions in its trial brief as raising the defense of
failure to state a claim under Fed. R. Civ. P. 12(h)(2)(C)19 which may be considered
as late as trial.20 That being said, the better practice would have been for Respondent
to challenge the sufficiency of Petitioner’s surname claim by filing a timely motion
under Fed. R. Civ. P. 12(b)(6) during the interlocutory phase of this case.
We reject Respondent’s defense because Paragraph No. 18, read in conjunction
with the remaining allegations in the complaint, make clear that Petitioner has
adequately pleaded that “the primary significance” of Respondent’s registered
19 Fed. R. Civ. P. 12(h)(2)(C), made applicable to Board proceedings by Trademark Rule
2.116(a), 37 C.F.R. § 2.116(a), states in relevant part that “[f]ailure to state a claim upon
which relief can be granted … may be raised … at trial.” See also TBMP § 311.02(c) (noting
that the defense of failure to state a claim may be raised at trial under Fed. R. Civ. P.
12(h)(2)). Given the unique nature of Board proceedings, we do not narrowly read the
application of Fed. R. Civ. P. 12(h)(2)(C) to preclude raising this issue in a parties’ trial brief.
Cf. NSM Res. Corp. v. Microsoft Corp., No. 92057932, 2014 TTAB LEXIS 399, at *35 n.19
(Board may sua sponte dismiss any insufficiently pleaded claim at final decision).
20 Under Fed. R. Civ. P. 12(h)(2)(C), Respondent was not required to plead failure to state a
claim as an affirmative defense with its answer. See TBMP § 311.02(c) (“Unpleaded
Affirmative Defenses”) (“Except as provided in Fed. R. Civ. P. 12(b) and 12(h)(2) (which allow
a defendant to raise certain specified defenses by motion), an unpleaded defense cannot be
relied upon by the defendant unless the defendant’s pleading is amended (or deemed
amended), pursuant to Fed. R. Civ. P. 15(a) or 15(b), to assert the matter.”).

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Composite and Word Marks is that of a surname, and that Respondent’s marks lack
distinctiveness. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (setting
forth plausibility standard for evaluating the sufficiency of a claim); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (plausibility standard applies to all federal civil
claims; a claimant must allege well-pleaded factual matter and more than
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.”).
In view of our determination, Respondent’s relevance objection asserted in the
appendix to its brief to “[a]ny evidence offered by Petitioner for the purpose of proving
that [Respondent’s] marks are primarily merely a surname and/or have not acquired
distinctiveness” is overruled.21
III. The Parties’ Trial Stipulation and The Record
The record includes the pleadings, and, by operation of Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the files of the subject registrations. As per the
parties’ “Joint Trial Stipulation” filed December 20, 2024,22 the parties agreed to the
following:
1. The authenticity and admissibility of the parties’ trademark file-
wrapper prosecution history and all documents produced during
discovery (excluding images embedded in any declarations); except that,
the parties reserve all substantive objections to competency, relevance,
and materiality. Either party may submit any such documents as
evidence of record in this proceeding by Notice of Reliance or other
allowed process and rely on such documents at trial.
21 Respondent’s Brief - Appendix of Evidentiary Objections, 81 TTABVUE 55.
22 62 TTABVUE.

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2. All discovery deposition testimony (including exhibits) and
declarations (including exhibits but excluding images embedded in any
declarations) are authentic and admissible and may be used as trial
testimony; except that, the parties reserve all substantive objections to
competency, relevance, and materiality. Either party may submit such
documents as evidence of record in this proceeding by Notice of Reliance
or other allowed process and rely on such documents at trial.
3. Ayoub is a surname.
See Trademark Rule 2.123(b), 37 C.F.R. § 2.123(b); see, e.g., Milwaukee Elec. Tool
Corp. v. Freud Am., Inc., No. 92059634, 2019 TTAB LEXIS 384, at *5 (parties
stipulated to admissibility of certain declarations and exhibits submitted by each
party on summary judgment); see also TBMP § 702.04(e) (“Parties may utilize
stipulations of facts and evidence to realize cost efficiencies in non-ACR cases.”) and
cases cited in Note 1.
The trial record is voluminous with multiple notices of reliance on various types
of evidence such as the pleadings from the parties’ prior civil suit and Prior
Opposition. It also includes testimony declarations and discovery depositions as well
as summary judgment affidavits from numerous witnesses which, as per the parties’
“Joint Trial Stipulation,” constitute trial testimony. In some instances, it contains
trial and discovery deposition testimony from the same witness given both in this
proceeding and in the Prior Opposition, as well in connection with the parties’
summary judgment motions. Although we do not list the individual pieces of evidence
here, the entire record has been carefully considered, and relevant evidence is
discussed throughout this opinion. See Quiktrip W., Inc. v. Weigel Stores, Inc., 984
F.3d 1031, 1036 (Fed. Cir. 2021) (Board not obliged to expressly discuss every piece

Cancellation No. 92080469
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of evidence); In re Miracle Tuesday LLC, 695 F.3d 1339, 1348 (Fed. Cir. 2012) (“[T]he
mere fact that the Board did not recite all of the evidence it considered does not mean
the evidence was not, in fact, reviewed.”).
Because the individuals who own Petitioner and Respondent are members of the
same extended family who share the surname “Ayoub,” we cite to discovery
depositions, summary judgment affidavits and testimony by each individual’s given
name as well. We do the same for any third-party testimony declarations from
witnesses who also bear the “Ayoub” surname.
Portions of the record have been designated confidential pursuant to the Board’s
standard protective order, and have been treated as such. See Trademark Rule
2.116(g), 37 C.F.R. § 2.116(g). We will discuss only in general terms the relevant
evidence designated as confidential where necessary and appropriate in our opinion.
With a few exceptions, the majority of citations to the record refer to the redacted,
publicly available versions of each submission. We cite to the publicly available,
redacted versions of the parties’ briefs.
IV. Evidentiary Objections
Given the contentious nature of this case, it is no surprise that the parties
interposed a plethora of evidentiary objections.23 We exercise our discretion to make
specific rulings only on those objections which are potentially outcome determinative
23 Petitioner’s Brief - Appendix of Evidentiary Objections, 79 TTABVUE 47; Respondent’s
Brief – Appendix of Evidentiary Objections and Responses to Petitioner’s Evidentiary
Objections, 81 TTABVUE 54-57; Petitioner’s Reply Brief – Appendix of Responses to
Respondent’s Evidentiary Objections, 83 TTABVUE 26-27.

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where necessary throughout the opinion. See, e.g., Int’l Dairy Foods Ass’n v.
Interprofession du Gruyère, No. 91232427, 2020 TTAB LEXIS 268, at *22 (Board
declined to rule on all evidentiary objections; instead ruling on only a selected few),
aff’d, 575 F. Supp. 3d 627 (E.D. Va. 2021), aff’d, 61 F.4th 407 (4th Cir. 2023).
Otherwise, for the remaining objections we have not individually considered,
rather than excluding such evidence, we have taken into account any deficiencies and
have accorded the objected-to evidence the probative value it merits. See Tequila
Cuadra S. de RL de CV v. Manufacturera de Botas Cuadra, S.A. de C.V., No.
91282327, 2025 TTAB LEXIS 207, at *6 (Board proceedings are “akin to a bench trial,
and Board judges are capable of assessing the proper evidentiary weight to be
accorded the testimony and evidence, taking into account the imperfections
surrounding such testimony and evidence”).
V. The Parties
The present cancellation represents a continuation of a long-standing family
dispute in the retail carpeting and carpet and rug cleaning business in the
Washington, D.C./Maryland/ Northern Virginia (“DMV”) metropolitan area.
A. Petitioner
Petitioner is a family‑owned business established in 1991 by Nabel (“Bill”) Ayoub
and Hala Ayoub, husband and wife.24 Petitioner is incorporated under the laws of
Maryland and employs approximately 25 individuals.25 Nabel and Hala “retired from
24 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 9; 65 TTABVUE 4.
25 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 5; 65 TTABVUE 3. See also Discovery
Deposition of Kris Ayoub (Sept. 26, 2024), 74 TTABVUE 23.

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the business in 2003 and have entrusted its management to [their] three sons,
Kristopher, Andrew, and Jamie.”26 Kristopher (“Kris”) Ayoub has “held a
management role” in the company since the late 1990s.27 As the “co-CEO” since 2004,
he is responsible for the company’s day-to-day operations and finances.28 Kris’
brothers Andrew and Jamie Ayoub, are also “involved in the business.”29
Petitioner “is in the business of carpet and flooring sales, installation, repair, and
cleaning in Maryland, the District of Columbia, and Northern Virginia.”30 Petitioner
has a showroom and sales offices at its headquarters in Kensington, Maryland and a
retail store located in Rockville, Maryland.31 Both locations accept rugs for drop-off
cleaning service.32 Petitioner also has drop-off locations for rug cleaning services in
Potomac, Maryland as well as Great Falls and Reston in Northern Virginia.33
Petitioner promotes its retail rug and rug cleaning services in Washington, D.C.,
and the neighboring Maryland and Northern Virginia suburbs.34 Initial marketing
efforts were traditional in nature, consisting in part of direct mail advertisements,
and print ads in residential telephone books and the Yellow Pages business
26 Nabel F. Ayoub Affidavit (Dec. 21, 2023) ¶ 2; 66 TTABVUE 779.
27 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶¶ 2-3; 65 TTABVUE 3.
28 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶¶ 2-3; 65 TTABVUE 3.
29 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶¶ 3; 65 TTABVUE 3.
30 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 5; 65 TTABVUE 3. See also Discovery
Deposition of Kris Ayoub (Sept. 26, 2024), 74 TTABVUE 21-22.
31 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 5; 65 TTABVUE 3.
32 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 6; 65 TTABVUE 3.
33 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 6; 65 TTABVUE 3.
34 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 7; 65 TTABVUE 3.

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directories.35 Since 2002, it has maintained its own business-to-consumer website,
ayoubnh.com, and began using search engine optimization (“SEO”) in 2013 to
increase website visibility and traffic.36 That same year, Petitioner added email blasts
as another online marketing tool, and the following year, social media advertising
and offering online discount coupons through the third-party platform Groupon.37
Petitioner also advertises its services using Google AdWords and pay-per-click
advertising.38
B. Respondent
Respondent is owned and operated by its President Daniel (“Dan”) Ayoub who
purchased the assets of the business in 2002 from Ayoub Rug Cleaning Co., Inc.39 It
was incorporated in 1994 in the state of Virginia, but traces its origins back to 1987
through its predecessor-in-interest, Ayoub Rug Cleaning.40 During the 1980s and
35 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 7; 65 TTABVUE 3.
36 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 8; 65 TTABVUE 4.
37 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 8; 65 TTABVUE 4; Discovery Deposition of
Kris Ayoub (Sept. 26, 2024), 74 TTABVUE 53 (“Q. And I believe you testified earlier that NH
has been doing Groupon advertising for the past 10 years? A. I believe so. I don’t know the
exact date but I’m guessing.”).
38 Discovery Deposition of Kris Ayoub (Sept. 26, 2024), 74 TTABVUE 36.
39 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶¶ 1
and 3; 75 TTABVUE 6. Second Decl. of Daniel Ayoub in Support of its Motion for Partial
Summary Judgment (Jan. 22, 2024) ¶ 1; 78 TTABVUE 6.
40 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 2;
75 TTABVUE 6; Second Decl. of Daniel Ayoub in Support of its Motion for Summary
Judgment (Jan. 22, 2024) ¶ 1; 78 TTABVUE 6. In March 2002, Respondent purchased the
assets of Ayoub Rug Cleaning Co., Inc., owned by Daniel Ayoub’s uncle, Fred Ayoub. The
asset purchase agreement conveyed to Respondent the trade name, goodwill associated with
the business, and customer lists. Prior Opposition Discovery Deposition of Daniel Ayoub
(Sept. 10, 2014), 66 TTABVUE 335.

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1990s Respondent used “multiple trade names,” such as “Daniel Ayoub Carpet
Service,” “ACS Steam Cleaning,” and “ACS Carpet Care (ACS).”41
Respondent provides “carpet, rug, furniture, and floor cleaning services as well as
retail store services featuring carpets, rugs, and flooring” to customers located
throughout the DMV metropolitan area and occasionally to customers in Delaware.42
Respondent has retail store locations in Falls Church and Chantilly, Virginia.43 It
currently employs approximately 45 employees and dispatches 16 work vehicles daily
to service its customers.44 Respondent has “held the Institute of Inspection Cleaning
and Restoration Certification (‘IICRC’) since at least 1992, and has been a certified
member of The Oriental Rug Retailers of America (‘ORRA’) and the Restoration
Industry Association (‘RIA’) since 2005 and 2007, respectively.”45
Over a 37 year period, Respondent has spent approximately $10 million on
advertising; served approximately 80,000 customers; and generated over $100 million
in sales.46 Respondent’s promotional activities from the past and present include a
41 Discovery Deposition of Daniel Ayoub (Sept. 19, 2024), 65 TTABVUE 212, 214, 230, 234-
235; Prior Opposition Discovery Deposition of Daniel Ayoub (Sept. 10, 2014), 65 TTABVUE
376-377.
42 Second Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Jan. 22,
2024) ¶ 2; 78 TTABVUE 7.
43 Discovery Deposition of Daniel Ayoub (Sept. 19, 2024); 66 TTABVUE 212.
44 Second Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Jan. 22,
2024) ¶ 19; 78 TTABVUE 15.
45 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 7;
75 TTABVUE 8.
46 Discovery Deposition of Daniel Ayoub (Sept. 19, 2024); 66 TTABVUE 259.

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mix of traditional and digital marketing tools such as print ads;47 online advertising
(e.g., banner ads);48 third-party website promotional and customer review sites such
as Yelp;49 paper and digital coupons;50 mailers and postcards;51 telephone book
directories;52 tradeshows;53 and work vehicle and building signage.54 It has also been
advertising its services on its website www.rugcare.com for approximately the past
20 years.55
C. The Parties’ Prior Litigation History
This cancellation proceeding is the most recent litigation involving the parties.
1. Prior Civil Suit and Settlement Agreement
On April 8, 2011, Petitioner (along with Ayoub Supply, LLC (“Ayoub Supply”))
filed a complaint against Respondent in the United States District Court for the
47 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023); 75
TTABVUE 8-9, 233-350.
48 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023); 75
TTABVUE 8-9, 121-124.
49 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023); 75
TTABVUE 11; see, e.g., 72 TTABVUE 135-145.
50 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023); 75
TTABVUE 10, 401-408.
51 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023); 75
TTABVUE 10, 488-489.
52 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023); 75
TTABVUE 9, 233-350.
53 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023); 75
TTABVUE 9, 478-487.
54 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023); 75
TTABVUE 8, 115-119.
55 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023); 75
TTABVUE 10-11, 409-419 (archived versions of Respondent’s website for the years 2003-
2012).

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District of Maryland, Ayoub, Inc. v. Danco, Inc., Case No. 8:11-cv-00915-JFM.56
Petitioner sought a declaratory judgment from the district court that “their
commercial use of their surname, Ayoub, does not constitute infringement of the ‘ACS
Registration’ [displayed below]57
or alleged ACS Common Law Marks,” [AYOUB CARPET SERVICE, AYOUB RUG
CLEANING COMPANY, THE CARPET AND RUG PEOPLE and AYOUB].58
Respondent filed an answer and counterclaim, and shortly thereafter the parties
settled the matter.59 The civil suit was dismissed with prejudice pursuant to the
parties’ joint stipulation and settlement agreement executed on September 13, 2011.
(“Settlement Agreement”).60 The Settlement Agreement imposes limitations on
Petitioner’s use of the surname “Ayoub” as a source indicator. Those terms include,
among others, that Petitioner must
56 66 TTABVUE 116-127.
57 This allegation referred to Respondent’s Registration No. 2908667 for the composite mark
AYOUB CARPET SERVICE ACS THE CARPET AND RUG PEOPLE. Complaint ¶ 1, 66
TTABVUE 125.
58 Complaint ¶¶ 1-2 and 42; 66 TTABVUE 116 and 126.
59 See Settlement Agreement (Sept. 13, 2011), 66 TTABVUE 138-139.
60 See Settlement Agreement (Sept. 13, 2011), 66 TTABVUE 137-143.

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in all uses of the name AYOUB, always use the term “N & H” either
immediately preceding, immediately after, directly on top of, or directly
beneath the AYOUB portion of its name or mark. Further, the term “N
& H” shall be in a size which is at least seventy percent (70%) of the size
of the AYOUB portion of the name or mark if it is used immediately
before or immediately after the AYOUB name. … In addition, if “N & H”
is used on top of or beneath the AYOUB name, any generic or descriptive
wording such as “carpet and rugs” or “carpet cleaning” would only follow
“N & H” but not AYOUB. With respect to the wording “carpet service”,
it may only be used in a manner sufficiently separate and apart from
the AYOUB and/or “N & H” terms such that it would not be considered
part of the same mark.61
Consistent with the terms of the parties’ Settlement Agreement, Petitioner filed
on January 12, 2013 an application to register the standard character mark AYOUB
N&H on the Principal Register which eventually matured into the pleaded
registration in this case.
2. Prior Opposition
Approximately six months after the parties settled their civil suit, on March 12,
2012, Respondent applied to register on the Principal Register the mark AYOUB in
standard characters for “Retail carpeting and rug stores” and “Carpet and rug
cleaning services” in Class 35.62 The application was refused registration during
prosecution under Trademark Act Section 2(e)(4) as primarily merely a surname.
Respondent obviated the refusal with a claim of acquired distinctiveness under
Trademark Act Section 2(f) based on Applicant’s alleged “substantially exclusive and
continuous use” of the mark in commerce for at least the five years immediately
before the date the statement was made.
61 See Settlement Agreement (Sept. 13, 2011), 66 TTABVUE 138-139.
62 Application Serial No. 85566860, filed March 12, 2012.

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Following publication of the mark in the Official Gazette, Petitioner, along with
Ayoub Supply, a related company, challenged the application by filing a notice of
opposition alleging that AYOUB is primarily merely a surname under Section 2(e)(4)
that had not acquired distinctiveness under Section 2(f). In a precedential final
decision issued in 2016, Ayoub, Inc. and Ayoub Supply, LLC v. ACS Ayoub Carpet
Serv., No. 91211014, 2016 TTAB LEXIS 98,63 the Board determined that
Respondent’s applied-for mark AYOUB was primarily merely a surname that had not
acquired distinctiveness due to a lack of substantially exclusive use by “unaffiliated
rug, carpet and flooring businesses.” Id. at *49. The Board cited documentary
evidence and testimony of service mark and trade name use of the surname “Ayoub”
by competitors for the same or similar services in the same geographic market, the
DMV, as well as evidence of consumer exposure to these multiple unrelated uses via
consumer-facing websites as well as Yellow Pages and White Pages business
directory listings and ads. Id. at *43-46.
The Board also found persuasive evidence that Respondent objected on at least
five occasions to both opposers’ and other competitors’ uses of “Ayoub,” and secured
agreements from opposers and four of those competitors restricting their use of the
surname.64 Id. at *46. As the Board explained:
63 Although the named defendant in the Prior Opposition is “ACS Ayoub Carpet Service,” it
identifies Respondent. Daniel Ayoub testified in the Prior Opposition that he is the “founder
and a principal of Danco, Inc.,” a Virginia corporation, and that ACS Ayoub Carpet Service
is “a tradename of Danco.” Id. at *10.
64 For example, Jimmy Ayoub of George Ayoub Carpet & Rug Care agreed “not to use ‘Ayoub’
to identify the source or origin of the related goods apart from its inclusion of ‘Ayoub’ as part
of the trade name ‘George Ayoub Carpet & Rug Care,’ or to use ‘Ayoub’ in any other way that
is likely to cause consumer confusion.” Id. at *17. Likewise, Michael Ayoub of Stand by

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While demonstrating Applicant’s efforts to police its mark, the record
shows that Opposer Ayoub, Inc. and these third parties were using the
name Ayoub at least some of the time during which Applicant claims
substantially exclusive use, and that all but one continue to do so.
Concurrent use of the surname Ayoub by Opposer Ayoub, Inc. and at
least some of the third parties further diminishes the likelihood that
the public associates AYOUB with Applicant alone, or recognizes
AYOUB as a mark identifying only Applicant’s services, particularly
because Applicant, Opposers, and the third parties are all in the same
general business in the same geographic region. See e.g., Miller v.
Miller, 105 USPQ2d 1615, 1625 (TTAB 2013) (in connection with claim
of acquired distinctiveness, applicant’s consent and agreement to third
party use of the surname Miller for legal services militated against
finding substantially exclusive use).
Id. at *46-47.
The Board further found that Respondent’s testimony regarding sales and
advertising of the mark AYOUB “does little to help establish that AYOUB acts as a
source identifier in the minds of consumers.” Id. at *41-42.
3. Present Dispute – Procedural Posture and Interlocutory
Background
Approximately two years following the Board’s decision in the Prior Opposition,
on March 18, 2018, Respondent filed the two applications which matured into the
registrations that are the subject of this cancellation proceeding.
With the filing of its initial answer, Respondent moved for summary judgment on
several grounds, including two of its affirmative defenses65 that Petitioner’s Section
2(d) claims against both registrations were barred by the doctrines of res judicata and
Flooring and Charlie Ayoub of C.I.A. Services agreed “not to use ‘Ayoub’ to identify the source
or origin of its goods or services in the industry, or to use ‘Ayoub’ in any other way that is
likely to cause consumer confusion.” Id.
65 See Respondent’s Answer to the First Amended Petition to Cancel, Affirmative Defenses
¶¶ 1-17, 6 TTABVUE 5-10.

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collateral estoppel based on the parties’ Settlement Agreement arising from their civil
litigation and as well as the final decision from the Prior Opposition.66 The Board
denied the motion.67
Respondent’s later-filed answer to the operative complaint in this proceeding
dropped both affirmative defenses, meaning that res judicata and collateral estoppel
are no longer at issue.
VI. Entitlement to a Statutory Cause of Action
Respondent does not challenge Petitioner’s statutory entitlement to bring the
instant proceeding. Nonetheless, as plaintiff, Petitioner must prove its entitlement to
a statutory cause action. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed.
Cir. 2020). Section 14 of the Trademark Act, 15 U.S.C. § 1064 provides:
A petition to cancel a registration of a mark, stating the grounds
relied upon, may, upon payment of the prescribed fee, be filed as
follows by any person who believes that he is or will be damaged,
… by the registration of a mark on the principal register
established by this chapter … .
To establish entitlement to a statutory cause of action Petitioner must
demonstrate (1) that its claims fall within the zone of interests protected by the
statute (i.e., has a “real interest” in the outcome of the proceeding); and (2) damage
proximately caused by the registration or continued registration of the involved mark
(i.e., a reasonable basis for its belief in damage). See Meenaxi Enter., Inc. v. Coca-Cola
Co., 38 F.4th 1067, 1070-71 (Fed. Cir. 2022) (citing Lexmark Int’l, Inc. v. Static
66 Respondent’s Motion for Summary Judgment (Oct. 27, 2022); 7 TTABVUE.
67 Board Interlocutory Order (Feb. 28, 2023); 14 TTABVUE 5-13.

Cancellation No. 92080469
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Control Components, Inc., 572 U.S. 118, 129, 132 (2014)); Corcamore, 978 F.3d at
1303-05; Australian Therapeutic Supplies Pty Ltd. v. Naked TM, LLC, 965 F.3d 1370,
1373 (Fed. Cir. 2020).
A plaintiff in an inter partes proceeding can establish its statutory entitlement to
bring a Section 2(d) claim by proving ownership of a valid and subsisting trademark
registration where, on the face of the registration, the mark and services present a
plausible likelihood of confusion claim. See Cunningham v. Laser Golf Corp., 222 F.3d
943, 945 (Fed. Cir. 2000) (plaintiff’s two prior registrations suffice to establish
plaintiff’s direct commercial interest and its standing); see also Lipton Indus., Inc. v.
Ralston Purina Co., 670 F.2d 1024, 1029 (CCPA 1982). Petitioner submitted under
notice of reliance a printout from the USPTO’s Trademark Status and Document
Retrieval (“TSDR”) database showing the current status and title of its pleaded
Registration No. 5215906 for the standard character mark AYOUB N&H for “retail
carpeting and rug stores” in Class 35, and “carpet and rug cleaning” in Class 37.68 To
further bolster its statutory entitlement, Petitioner’s “co-CEO” Kristopher Ayoub,
through his testimony declaration, has established Petitioner’s common law rights in
and use of the mark “Ayoub N&H” in connection with retail carpet sales and
installation, carpet cleaning and carpet repair services.69 See Giersch v. Scripps
Networks, Inc., No. 92045576, 2009 TTAB LEXIS 72, at *7 (common law use sufficient
to establish standing/statutory entitlement).
68 66 TTABVUE 9-14.
69 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶¶ 12-15; 65 TTABVUE 4-5.

Cancellation No. 92080469
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Based on this evidence, we find that Petitioner has demonstrated its entitlement
to bring a Section 2(d) claim against both of Respondent’s registrations. Since
Petitioner has demonstrated entitlement to a statutory cause of action on its Section
2(d) claims, it has the right to assert its remaining claim that each mark is primarily
merely a surname lacking acquired distinctiveness. See Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1377 (Fed. Cir. 2012) (“[O]nce an opposer meets the
requirements for [statutory entitlement], it can rely on any of the statutory grounds
for opposition set forth in . . . [the Trademark Act]”); see also Hole in 1 Drinks, Inc. v.
Lajtay, No. 92065860, 2020 TTAB LEXIS 9, at *10.
Petitioner has also separately demonstrated its statutory entitlement to bring
these additional claims against both involved registrations because “Ayoub” is a
component of Petitioner’s pleaded mark AYOUB N&H, and is also the surname of
Petitioner’s owners. See Azeka Bldg. Corp. v. Azeka, No. 91218679, 2017 TTAB LEXIS
123, at *8 (“Based on the inclusion of AZEKA in Opposer’s corporate name, and the
fact that it is also the surname of Opposer’s president, these established facts are
sufficient to prove Opposer’s standing [now known as statutory entitlement] to bring
the surname claim under the liberal threshold set by controlling case law.”).
VII. Petitioner’s Claims that Respondent’s Marks are Primarily Merely
Surnames without Acquired Distinctiveness
First, we consider Petitioner’s claims that Respondent’s registered marks are
primarily merely surnames within the meaning of Section 2(e)(4) that have not
acquired distinctiveness under Section 2(f).

Cancellation No. 92080469
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A. Legal Background
A mark which is “primarily merely a surname” under Section 2(e)(4) cannot be
registered on the Principal Register without a showing of acquired distinctiveness
under Section 2(f). The underlying rationale is that “a surname is ‘shared by more
than one individual, each of whom may have an interest in using his surname in
business.’” Earnhardt v. Kerry Earnhardt, Inc., 864 F.3d 1374, 1377 (Fed. Cir. 2017)
(quoting In re Etablissements Darty et Fils, 759 F.2d 15, 17 (Fed. Cir. 1985)).
The test for determining whether a mark is primarily merely a surname is
whether, when viewed in relation to the identified goods or services, its “primary
significance as a whole to the purchasing public” is that of a surname. Earnhardt,
864 F.3d at 1377; see also In re Beds & Bars Ltd., No. 85597669, 2017 TTAB LEXIS
141, at *5; In re Eximius Coffee, LLC, No. 86262060, 2016 TTAB LEXIS 472, at *3.
Whether the primary significance of a mark is merely that of a surname is a question
of fact. Darty et Fils, 759 F.2d at 17 (“The question of whether a word sought to be
registered is primarily merely a surname within the meaning of the statute can be
resolved only on a case by case basis.”).
The parties have stipulated that “Ayoub” is a surname, meaning that we can
dispense with the initial inquiry regarding the primary significance of this term and
instead focus on whether Respondent’s Composite and Word Marks “as a whole” are
“primarily merely surnames.” See Darty et Fils, 759 F.2d at 18 (setting forth inquiries
to consider in determining whether the purchasing public would perceive a proposed
mark as primarily merely a surname); see also In re Benthin Mgmt. GmbH, No.

Cancellation No. 92080469
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74340080, 1995 TTAB LEXIS 10, at *5-6 (setting forth additional inquiries to
consider).
B. Registration No. 5653245 - Respondent’s Composite Mark
We begin with Respondent’s Composite Mark which we reproduce below for ease
of reference:
.
Respondent’s Composite Mark contains multiple literal and design elements. The
letters “ACS” and the year “1952” appear prominently in the center of a circular
shaped carrier. To the right, in large bold lettering, is the surname “Ayoub.” The
laudatory phrase “The Original” appears in a much smaller size font above the letter
“y” in “Ayoub.” “Carpet Service,” the merely descriptive, if not generic wording of the
identified services, is depicted in relatively smaller lettering below the “-oub” in
“Ayoub.”
“A key element [of a surname inquiry] is determining the relative distinctiveness
of the [additional] term[s] in the mark.” Earnhardt, 864 F.3d at 1380. Adding wording
that is merely descriptive or generic of the identified services does not “detract from
[a mark’s] primary surname significance.” Azeka, 2017 TTAB LEXIS 123, at *16 n.9.
See, e.g., Mitchell Miller, P.C. v. Miller, No. 91184841, 2013 TTAB LEXIS 1 (holding
MILLER LAW GROUP (LAW GROUP disclaimed) for legal services primarily merely
a surname). Here, the year “1952” and wording “Original” and “Carpet Service” are

Cancellation No. 92080469
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not inherently distinctive and have been disclaimed. Likewise, the modest design
element consisting of a circular carrier and minimal stylization to the mark’s wording
are nondistinctive in nature. Compare In re Pickett Hotel Co., No. 73474328, 1986
TTAB LEXIS 111, at *6 (finding PICKET SUITE HOTEL primarily merely a
surname because the stylization of the lettering is “insignificant, in that it is clearly
not so distinctive as to create any separate commercial impression in the minds of
purchasers of appellant’s services”) with Benthin, 1995 TTAB LEXIS 10, at *7
(“highly stylized” display of BENTHIN weighed against finding that the mark would
be perceived as primarily merely a surname).
“ACS,” however, is different. The record shows that “ACS” has no recognized
meaning to the public other than as a coined acronym for the entity “Ayoub Carpet
Services” meaning that it is not merely descriptive or generic of the identified
services. See Baroness Small Estates, Inc. v. Am. Wine Trade, Inc., No. 92051369,
2012 TTAB LEXIS 335, at *20-26 (CMS not generic acronym for “wine” made from
the grape varietals cabernet, merlot, and syrah; the Board noted that “the fact that a
term is derived from individual generic words or even a listing of generic words does
not necessarily make the derived term generic” or merely descriptive). Respondent’s
President Dan Ayoub testified that ACS is used “as a shorthand for AYOUB CARPET
SERVICE,”70 and is prominently featured on “various materials such as work orders,
invoices, coupons and company work vans” in order to educate consumers as to its
70 Second Decl. of Daniel Ayoub in Support of Respondent’s Partial Motion for Summary
Judgment (Jan. 22, 2024) ¶¶ 13 and 15; 78 TTABVUE 12.

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significance.71 Respondent also features the ACS acronym in other “public-facing
materials” such as Respondent’s website, store signage, and employee uniforms in
order to further promote consumer brand awareness.72 Several of Respondent’s
residential and commercial clients submitted declarations stating they recognize ACS
as “a shorthand for Ayoub Carpet Service”; and that when they see ACS they
recognize it as a designation for Respondent.73
We find that the ACS portion of Respondent’s Composite Mark is inherently
distinctive, rendering the mark as a whole not “primarily merely a surname” to the
71 Second Decl. of Daniel Ayoub in Support of Respondent’s Partial Motion for Summary
Judgment (Jan. 22, 2024) ¶¶ 13 and 15; 78 TTABVUE 12.
72 Second Decl. of Daniel Ayoub in Support of Respondent’s Partial Motion for Summary
Judgment (Jan. 22, 2024) ¶¶ 13 and 19; 78 TTABVUE 12.
73 Declarations of Erik J. Weisskopf, Amy Marchiando, Tom and Dee Geib, Susan Safran,
Erin Kevin, Hans Boehmer and Julie Johnson, Drew Lawless, David Morgan (Vice President
of Finance and Treasurer of Great American Restaurants), Eric Whittaker (E & I Plumbing),
Diane M. Wood, Chris Corridon, Jim Corridon (President, Corridon Electric Co.), Patricia
Mertz Esswen, Maggie Accardo; 78 TTABVUE 202, 210, 219, 229, 240, 259, 268, 281, 283,
307, 313. Frequently, the Board accords “form” customer declarations minimal probative
value. See, e.g., In re Lorillard Licensing Co., No. 76680117, 2011 TTAB LEXIS 206, at *19-
21; but see In re Hotels.com, L.P., 573 F.3d 1300, 1305 (Fed. Cir. 2009) (use of same words in
64 form declarations submitted to show a widely held view “does not eliminate all value of
the evidence;” Board’s “total rejection of this evidence appears unwarranted”); In re Data
Packaging Corp., 453 F.2d 1300 (CCPA 1972) (fact that affidavits were drafted by applicant’s
attorney and were practically identical in wording detracts little or nothing from their
sufficiency to make out a prima facie case of trademark recognition). But in this case, each
customer states in their respective declaration that they have been longtime clients of
Respondent’s rug cleaning services spanning a time period of several years. See, e.g.,
Declarations Amy Marchiando (customer for “many years” including from 1992-2001) and
David Morgan, Vice President of Finance and Treasurer of Great American Restaurants
(attesting to current monthly business with Respondent’s carpet cleaning services); 78
TTABVUE 210 and 268. In addition, each declaration is corroborated with documentary
evidence consisting of invoices showing the date and type of service each customer purchased
over a multi-year period. See, e.g., Declarations of Erin Kevin (carpet cleaning invoices dated
1989, 1992, 1993, 1996) and David Morgan of Great American Restaurants (carpet cleaning
invoices dated 1998, 1992, 1994, 1998, 1999, 2000, and 2024). For this reason, we accord each
customer declaration a higher level of probative weight.

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purchasing public. See TRADEMARK MANUAL OF EXAMINING PROCEDURE
§ 1211.01(b)(vi) (Nov. 2025) (“If the wording combined with the surname is inherently
distinctive (i.e., matter that is fanciful, arbitrary, or suggestive), the mark is not
considered to be primarily merely a surname under § 2(e)(4).”).
The petition to cancel Respondent’s Composite Mark on the ground that
it is primarily merely a surname within the meaning of Section 2(e)(4) is
denied as to both Classes 35 and 37. In view of our determination that
Respondent’s Composite Mark is inherently distinctive, the issue of
whether Respondent’s Composite Mark has acquired distinctiveness under
Section 2(f) is moot.
C. Registration No. 5599838 – Respondent’s Word Mark
We now direct our attention to Respondent’s standard character mark AYOUB
CARPET SERVICE (CARPET SERVICE disclaimed) for “Retail store services
featuring carpets, rugs and flooring” in Class 35; and “Carpet, rug, furniture and floor
cleaning services” in Class 37” registered on the Principal Register pursuant to
Section 2(f) of the Trademark Act.
Respondent argues that AYOUB CARPET SERVICE is not primarily merely a
surname because the phrase CARPET SERVICE is “neither generic nor descriptive”
and constitutes “a significant addition to the surname Ayoub.”74 Respondent takes
this position, despite the fact that the parties stipulated that “Ayoub” is a surname,
74 Respondent’s Brief, p. 34; 81 TTABVUE 42.

Cancellation No. 92080469
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and the mark is registered on the Principal Register pursuant to Section 2(f) in its
entirety with a disclaimer of CARPET SERVICE.
Respondent’s arguments are not well-taken. There is no question that registration
of a mark under Section 2(f) constitutes an admission that the mark is not inherently
distinctive. See Yamaha Int’l Corp. v. Hoshino Gakki Co., 840 F.2d 1572, 1577 (Fed.
Cir. 1988) (“Where . . . an applicant seeks a registration based on acquired
distinctiveness under Section 2(f), the statute accepts a lack of inherent
distinctiveness as an established fact.”); see also Cold War Museum, Inc. v. Cold War
Air Museum, Inc., 586 F.3d 1352, 1358 (Fed. Cir. 2009) (“where an applicant seeks
registration on the basis of Section 2(f), the mark’s descriptiveness is a nonissue; an
applicant’s reliance on Section 2(f) during prosecution presumes that the mark is
descriptive”). This precept applies with equal force to a mark that is primarily merely
a surname; indeed, the Board highlighted this principle in the Prior Opposition
involving both parties. See Ayoub, 2016 TTAB LEXIS 98, at *4 (in light of applicant’s
amendment of its application to seek registration under Section 2(f), “the parties
agree, as do we, that the only issue before us is whether AYOUB has acquired
distinctiveness under Section 2(f) of the Trademark Act.”). Thus, we can dispense
with the inquiry as to whether the mark AYOUB CARPET SERVICE is primarily
merely a surname and instead focus on whether as Petitioner pleaded in the operative
petition to cancel, Respondent had not acquired distinctiveness through substantially
exclusive use of Ayoub.75 See Flame & Wax, Inc. v. Laguna Candles, LLC, No.
75 Reply Brief, p. 4; 83 TTABVUE 9.

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92072343, 2022 TTAB LEXIS 272, at *27-27 (Board looked to the petition to cancel
and trial brief to determine the time when the petitioner alleged respondent failed to
establish acquired distinctiveness, i.e. at time of registration, time of trial, or both).
A mark has acquired distinctiveness “if it has developed secondary meaning, which
occurs when, ‘in the minds of the public, the primary significance of a [mark] is to
identify the source of the [service] rather than the [service] itself.’” Wal-Mart Stores,
Inc. v. Samara Bros., Inc., 529 U.S. 205, 211 (2000) (citation omitted). Whether a
mark has acquired distinctiveness is a question of fact. See Schlafly v. St. Louis
Brewery, LLC, 909 F.3d 420, 423 (Fed. Cir. 2018) (citing In re La. Fish Fry Prods.,
Ltd., 797 F.3d 1332, 1335 (Fed. Cir. 2015)); see also Hoover Co. v. Royal Appliance
Mfg. Co., 238 F.3d 1357, 1359 (Fed. Cir. 2001). The amount and character of evidence
required to establish acquired distinctiveness depends on the facts of each case and
the nature of the mark sought to be registered. Roux Labs., Inc. v. Clairol Inc., 427
F.2d 823, 829 (CCPA 1970).
As explained above, the earlier Board proceeding involving the parties was an
opposition against an application, not a cancellation proceeding against a
registration. In Yamaha, the Federal Circuit explained that in an opposition
proceeding, while the opposer must make a prima facie case of no acquired
distinctiveness, “[i]n contrast to the opposer’s ultimate burden in oppositions
involving Sections 2(a)–(e), the ultimate burden when registration is sought under
Section 2(f) is properly placed on the applicant.” 840 F.2d at 1580. Because this is a
cancellation proceeding, our analysis differs than if we were considering this same

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claim in an opposition proceeding against an application such as in the Prior
Opposition. This is because registrations on the Principal Register, as opposed to
applications, are accorded a presumption of validity under Trademark Act Section
7(b), 15 U.S.C. § 1057(b). The presumption of validity under Section 7(b) that attaches
to a registration issued pursuant to Section 2(f) includes a presumption that the
registered mark has acquired distinctiveness. Alcatraz Media, Inc. v. Chesapeake
Marine Tours Inc., No. 92050879, 2013 TTAB LEXIS 347, at *46 (burden on petitioner
to rebut presumption that mark registered under Section 2(f) has acquired
distinctiveness), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.). The U.S. Court of
Appeals for the Federal Circuit in Cold War Museum set forth in detail these “various
burdens at play in a cancellation proceeding” against marks registered pursuant to
Section 2(f) as follows:
In a Section 2(f) case, the party seeking cancellation bears the initial
burden to “establish a prima facie case of no acquired distinctiveness.”
To satisfy this initial burden, the party seeking cancellation must
“present sufficient evidence or argument on which the board could
reasonably conclude” that the party has overcome the record evidence of
acquired distinctiveness—which includes everything submitted by the
applicant during prosecution. The burden of producing additional
evidence or argument in defense of registration only shifts to the
registrant if and when the party seeking cancellation establishes a
prima facie showing of invalidity. The Board must then decide whether
the party seeking cancellation has satisfied its ultimate burden of
persuasion, based on all the evidence made of record during prosecution
and any additional evidence introduced in the cancellation proceeding.
Cold War Museum, 586 F.3d at 1358 (citations omitted).

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1. Has Petitioner Made a Prima Facie Case?
Keeping the guidance from Cold War Museum in mind, we now evaluate whether
Petitioner made a prima facie case to rebut the presumption that Respondent’s mark
AYOUB CARPET SERVICE has acquired distinctiveness. How a petitioner satisfies
its initial burden in general depends on the nature of the evidence submitted by the
respondent during prosecution in support of its claim of acquired distinctiveness.
Section 2(f) states in relevant part:
The Director may accept as prima facie evidence that the mark has
become distinctive, as used on or in connection with the applicant’s
goods in commerce, proof of substantially exclusive and continuous use
thereof as a mark by the applicant in commerce for the five years before
the date on which the claim of distinctiveness is made.
“The statute is silent as to the weight of evidence required for a showing under
Section 2(f) ‘except for the suggestion that substantially exclusive use for a period of
five years immediately preceding filing of an application may be considered prima
facie evidence.’” In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 1125 (Fed. Cir.
1985) (internal citation omitted). Subsections (1) and (3) of Trademark Rule 2.41, 37
C.F.R. § 2.41, entitled “Proof of distinctiveness under section 2(f),” fills in this gap. In
re Koninklijke Philips Elecs. N.V., No. 85092079, 2014 TTAB LEXIS 349, at *7.
Respondent did not submit during prosecution any “other” evidence of acquired
distinctiveness, such as advertising expenditures, volume of sales under the mark,
consumer surveys or customer declarations. See Trademark Rule 2.41(a)(3), 37 C.F.R.
§ 2.41(a)(3). Nor did Respondent attempt to prove acquired distinctiveness through a
claim of ownership of a prior registration on the Principal Register of the same mark

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for “sufficiently similar” services. See Trademark Rule 2.41(a)(1), 37 C.F.R.
§ 2.41(a)(1). Instead, the Office, as it typically does for marks that are primarily
merely surnames, see Adlon, 2016 TTAB LEXIS at *17 n.33, found acquired
distinctiveness based solely on Respondent’s Section 2(f) declaration of five years of
“substantially exclusive and continuous use” of the mark AYOUB CARPET SERVICE
immediately preceding June 26, 2018, the date of execution of Respondent’s
declaration. See Section 2(f), 15 U.S.C. § 1052(f); see also Trademark Rule 2.41(a)(2),
37 C.F.R. § 2.41(a)(2).
For a mark that is primarily merely a surname to have acquired distinctiveness
under Section 2(f), there must be, at a minimum, proof of “substantially exclusive
use” of the surname “which changes its significance to the public from a surname of
an individual to a mark for particular goods or services.” Darty et Fils, 759 F.2d at
17. See also Miller, 2013 TTAB LEXIS 1, at *34. The requirement of substantially
exclusive use is of heightened importance because “surnames are shared by multiple
individuals, and each individual may have an interest in using his/her surname in
connection with his/her business.” Id. at *27. Thus, one way Petitioner can make a
prima facie case to rebut the presumption of validity under Section 7(b) which
attaches to Respondent’s registration under Section 2(f) is to show that Respondent’s
claimed use of “Ayoub” was not “substantially exclusive” between the relevant time
frame of June 26, 2013 through June 26, 2018. See Alcatraz, 2013 TTAB LEXIS 347,
at *52 (where a mark is registered under Section 2(f) based solely on a declaration of
use, a petitioner in a cancellation proceeding may satisfy its initial burden of prima

Cancellation No. 92080469
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facie invalidity under Cold War Museum by proving that the use of the registered
mark was not “substantially exclusive and continuous” for the five years preceding
execution of the 2(f) declaration). Cf. Miller, 2013 TTAB LEXIS 1, at *33-34 (in an
opposition proceeding, where record showed “at least” seven instances of third-party
use of the surname MILLER in connection with legal services, the applicant could not
in good faith submit a verified statement that the mark has become distinctive of her
legal services through her ‘substantially’ exclusive use in commerce).
Petitioner incorrectly argues that it can make a prima facie case by showing that
Respondent’s mark AYOUB CARPET SERVICE “is so highly descriptive that the
Board should find the examiner erred in accepting Respondent’s 2(f) declaration at
face value.”76 Petitioner improperly conflates merely descriptive marks with marks
that are primarily merely surnames. Whether a mark is primarily merely a surname
is a binary finding. A mark that is “primarily merely a surname” within the meaning
of Section 2(e)(4) of the Trademark Act cannot by definition be placed on a sliding
scale measuring the degree that the mark is a surname.
Respondent urges the Board to limit its “substantially exclusive” inquiry under
Section 2(f) to third-party uses of the entirety of Respondent’s mark AYOUB CARPET
SERVICE in its exact form. Respondent points to Galperti, Inc. v. Galperti S.R.L.,
791 Fed. Appx. 905, 910 (Fed. Cir. 2019) (“Galperti I”) and Galperti, Inc. v. Galperti
S.R.L., 17 F.4th 1144, 1147 (Fed. Cir. 2021) (“Galperti II”) as authority because the
registered mark at issue in that cancellation consisted solely of the surname
76 Reply Brief, p. 4; 83 TTABVUE 9.

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“Galperti.”77 We reject Respondent’s contention as an overly narrow reading of these
opinions. Galperti I and II involved the question of whether the respondent in that
case had made substantially exclusive use of the surname “Galperti” in the context
of a fraud claim where the petitioner alleged that respondent knew from the parties’
prior civil litigation that both parties used the GALPERTI mark for the manufacture
and sale of flanges, rendering its Section 2(f) declaration of “substantially exclusive”
use made during prosecution a fraudulent misrepresentation. Galperti I, 791 Fed.
Appx. at 908. Both Galperti I and II reiterated the longstanding principle that “when
evaluating whether [a party] has had ‘substantially exclusive’ use of a mark, we look
to whether any use by a third party was ‘significant,’ or whether it was merely
‘inconsequential or infringing.’” Galperti I, 791 Fed. Appx. at 910; Galperti II, F.4th
at 1147. Galperti II further refined this precept to clarify that we should look liberally
to the “marketplace uses of a term lacking secondary meaning … are among the uses
that legitimately play [a] role” “as undermining a claim of acquired distinctiveness of
a term based on substantially exclusive use of the term as a mark for the statutory
five-year period.” Galperti II, 17 F.4th at 1148; see also Levi Strauss & Co. v. Genesco,
Inc., 742 F.2d 1401, 1403 (Fed. Cir. 1984) (“When the record shows that purchasers
are confronted with more than one (let alone numerous) independent users of a term
or device, an application for registration under Section 2(f) cannot be successful, for
distinctiveness on which purchasers may rely is lacking under such circumstances.”).
77 Respondent’s Brief, p. 37; 81 TTABVUE 45.

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Furthermore, in instances, such as here, where the additional wording in a mark
comprised in part of a surname is merely descriptive, if not generic, consumers will
look to the surname as the source-identifier. See In re Hutchinson Tech., 852 F.2d
552, 554-55 (Fed. Cir. 1988); cf. Azeka, 2017 TTAB LEXIS 123, at *16 n.9 (merely
descriptive words generally “do little to alleviate the confusion” tied to a surname).
But even if that were not the case, it logically follows that the appropriate test for
“substantially exclusive” use of a mark that is primarily merely a surname is whether
competitors have used the shared surname in connection with the same or similar
services, not the exact same mark. Requiring word-for-word identity of Respondent’s
entire mark would frustrate the underlying purposes of Sections 2(e)(4) and 2(f). The
controlling inquiry is whether more than one entity has an interest in using the same
term in connection with their services, and in the case of a shared surname, the
answer is a resounding yes. See Miller, 2013 TTAB LEXIS 1, at *28 (“The record
clearly establishes that both applicant and opposer have an interest in using, and do
in fact use, the MILLER surname in connection with their respective legal
practices.”). Thus, the third-party uses of a mark containing a surname need not be
identical to the involved mark to undermine a claim of “substantially exclusive” use.
Having resolved this question, we now examine the evidence relevant to the
five-year period at issue in the Section 2(f) declaration: June 26, 2013 through June
26, 2018. Cf. Neapco Inc. v. Dana Corp., No. 92017572, 1989 TTAB LEXIS 43, at *2
(“the time period of primary concern is the time when the registration issued. If a
petitioner can establish that at that time, the registered mark was merely descriptive,

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then it is incumbent upon the registrant to establish that prior to the issuance of the
registration, the registered mark had acquired a secondary meaning in the sense that
its primary significance was that of a source indicator of goods emanating from
registrant.”). The record establishes that several carpet cleaning and sales businesses
in the DMV region used “Ayoub” as part of their trade name or service mark during
that period: George Ayoub Carpet & Rug Care;78 Hanna Ayoub Rug Cleaning;79 and
Ayoub Hardwood Flooring, Inc.;80 and Petitioner, Ayoub N&H.81 A fifth business
owned by Charlie Ayoub, C.I.A. Services, provided flooring services which are related
to carpet installation and cleaning services, and incorporated “Ayoub” as part of its
78 Decl. of Jimmy Ayoub, President and Owner of George Ayoub Carpet & Rug Care (Sept. 6,
2024) ¶ 2; 66 TTABVUE 834 (“My business has been in operation in the Washington, D.C.
metropolitan areas since 1987). See also printouts from http://georgeayoubcarpet.com
accessed on 10/22/2013 at 66 TTABVUE 99-101 and Prior Opposition Discovery Deposition
of Daniel Ayoub (Sept. 10, 2014), 66 TTABVUE 346-348 (testified that the following entities
were using the Ayoub surname in carpet and rug cleaning businesses: Ayoub N & H, Hanna
Ayoub, George Ayoub, Ayoub Hardwood Floors).
79 Second Decl. of Joe Hadeed, owner of Hadeed Carpet Cleaning Business (Sept. 6, 2024) ¶ 3;
66 TTABVUE 538 (“My business has been in operation in the Washington, D.C. metropolitan
areas since 1955. I purchased the Hanna Ayoub Rug Cleaning business in 2018 and I still
use the Hanna Ayoub Rug Cleaning Trademark.”). See also Prior Opposition Discovery
Deposition of Daniel Ayoub (Sept. 10, 2014), 66 TTABVUE 222, 346-348.
80 Printouts from https://ayoubflooringwebs.com and Yelp accessed on 10/22/2013 at 66
TTABVUE 104-112. Although this evidence is not testimony, it does show public exposure to
a competitor in the Washington, D.C. metropolitan area using the surname Ayoub and in
connection with carpet and rug cleaning or flooring businesses. Ayoub, 2016 TTAB LEXIS
98, at *44. See also Prior Opposition Discovery Deposition of Daniel Ayoub (Sept. 10, 2014),
66 TTABVUE 346-348.
81 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶¶ 9, 13 and 15; 65 TTABVUE 4-5 (testimony
as to Petitioner’s use of the Ayoub surname as part of Petitioner’s trade name and surname
since 1996); Discovery Deposition of Kris Ayoub (Sept. 26, 2024), 74 TTABVUE 28 (Q. Can
you identify for me the carpet and rug companies in the D.C. metro area that use, in whole
or in part, the word ‘Ayoub’ in their name? A. I believe Hanna Ayoub, George Ayoub Carpet
Service, in addition to [Petitioner and Respondent].”); see also Prior Opposition Discovery
Deposition of Daniel Ayoub (Sept. 10, 2014), 66 TTABVUE 346-348.

Cancellation No. 92080469
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online marketing.82 Most of these businesses maintained consumer-facing websites
during the relevant timeframe and advertised either the same or related services to
overlapping customers in the DMV market.
Contemporaneous website captures show that consumers in this geographic
market were exposed to the use of the “Ayoub” surname by these businesses from
June 26, 2013 through June 26, 2018. See Ayoub, 2016 TTAB LEXIS 98, at *43-46
(Board considered evidence of consumer exposure to third-party websites as well as
Yellow Pages and White Pages business directory listings and ads to find that the
applied-for mark was not in substantially exclusive use). For example, the October
22, 2013 screen capture below shows the George Ayoub Carpet & Rug Care “Green
Leaf” logo displayed in the top-left corner.83 “George Ayoub” appears in large green
capital letters above a much smaller depiction of the wording “Carpet & Rug Care.”
The website capture touts serving the Washington, D.C., Northern Virginia, and
Montgomery County Maryland communities since 1987.84 In the top right corner, it
features in all capital letters the prompt “CALL NOW” with two different telephone
numbers, one for customers located in Virginia, and another for Maryland. The
screenprint also includes navigation tabs such as “Special Offers/Coupons” and
“Consumer Testimonials,” and displays third-party endorsement logos on the right
side from Consumer Checkbook and Angie’s List.85
82 74 TTABVUE 138.
83 66 TTABVUE 99.
84 66 TTABVUE 99.
85 66 TTABVUE 99.

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Another illustration is from Ayoub Hardwood Flooring, Inc. An October 22, 2013
website capture prominently features its trade name and service mark in all capital

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letters against a maroon backdrop at the top.86 It also shows its location in
Gaithersburg, Maryland.
Petitioner too had an active Internet presence during the relevant timeframe
focused on the DMV market. By 2013, Petitioner had already deployed its own
website ayoubnh.com and began using SEO and email blasts in 2013 to increase
86 66 TTABVUE 104.

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website visibility and traffic.87 Petitioner’s website in 2017 and 2018 show use of its
mark AYOUB N&H with the “Ayoub” portion prominently displayed.88 By way of
illustration, the printout89 below captured on May 22, 2017 shows “Ayoub” appearing
in large, dark colored capital letters vis-à-vis the smaller sized letters “N & H” in a
pale beige.90 It delineates the geographic scope of its services with the slogan “Depend
on Ayoub N&H for Best Carpet Cleaning, Rug Cleaning, and Flooring Care for
Maryland, D.C. & Northern VA.”91 At the top are two different telephone numbers,
one for Virginia customers and the other for customers located in Maryland.92 The
website included navigation tabs such as “Testimonials” from customers.93
87 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 8; 65 TTABVUE 4.
88 72 TTABVUE 330-31.Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 14; 65 TTABVUE 5
(since Petitioner’s first use of its mark “Ayoub N&H continues to use the mark … and on its
website, www.ayoubnh.com.”).
89 72 TTABVUE 330. As explained above, this evidence has been deemed authentic and
admissible as per the Parties’ Joint Trial Stipulation.
90 72 TTABVUE 330.
91 72 TTABVUE 330.
92 72 TTABVUE 330.
93 72 TTABVUE 330.

Cancellation No. 92080469
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A final example of consumer exposure to use of the surname Ayoub on the Internet
is from C.I.A. Services. A 2017 screen capture from C.I.A. Services touts the business
as a “commercial and residential carpet and floor care company” serving Northern
Virginia.94 It features a photo of the owner along with his signature “Charlie
Ayoub.”95 Although this usage of “Ayoub” does not function as a source indicator, it
still constitutes “significant” “marketplace use” of the surname. See Galperti II, 17
F.4th at 1147-48.96
94 74 TTABVUE 138.
95 74 TTABVUE 138.
96 Indeed, C.I.A. Services’ display of the surname “Ayoub” in this manner was consistent with
the agreement it had reached with Respondent prohibiting the business from using “Ayoub”
as part of its trade name or service mark. See Ayoub, 2016 TTAB LEXIS 98, at *17.

Cancellation No. 92080469
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Respondent points to the following passage from the legal treatise MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION to argue that the existence of actual consumer
confusion during the relevant time frame constitutes evidence of acquired
distinctiveness: “If people were not aware of the trademark significance of the senior
mark, how could they be confused as to source or affiliation? Thus, evidence of actual
confusion is also evidence of secondary meaning and trademark significance.”
Respondent’s Brief, p. 38; 81 TTABVUE 465 (quoting MCCARTHY, § 15:11 (5th ed.)).

Cancellation No. 92080469
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The facts do not support such a finding here. The evidence of actual confusion in the
record, discussed in more detail below, stemmed from the use of the common surname
“Ayoub,” not consumer recognition of AYOUB CARPET SERVICE as uniquely
pointing to Respondent.
In sum, the testimony and evidence of consumer-facing websites show that use of
the surname “Ayoub” by unaffiliated carpet, rug and flooring businesses in the DMV
region between June 26, 2013 through June 26, 2018 was “significant,” rather than
“inconsequential.” See Galperti II, 17 F.4th at 1147. The active online presence during
this period of several regional carpet businesses heightened consumer exposure to
the surname “Ayoub.” This concentrated level of competitor use of the surname
“Ayoub” in the DMV market directly undercuts Respondent’s assertion of
“substantially exclusive” use of its AYOUB CARPET SERVICE mark from June 26,
2013 to June 26, 2018.
In view of the foregoing, we find that Respondent’s mark AYOUB CARPET
SERVICE was not in substantially exclusive use for “Retail store services featuring
carpets, rugs and flooring” in Class 35 and “Carpet, rug, furniture and floor cleaning
services” in Class 37 from June 26, 2013 through June 26, 2018. Petitioner has met
its initial burden under Cold War Museum of making a prima facie showing of lack
of acquired distinctiveness. We reach this conclusion mindful that in the same
geographic market where multiple individuals share a surname, each has a
legitimate interest in using his or her own name in business. See Earnhardt, 864 F.3d
at 1377-78.

Cancellation No. 92080469
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2. Has Respondent Rebutted Petitioner’s Prima Facie Case?
The burden now shifts to Respondent to prove acquired distinctiveness based on
any “additional evidence or argument” produced during trial, keeping in mind that
Petitioner bears the ultimate burden of proof by a preponderance of the evidence. See
Cold War Museum, 586 F.3d at 1358. Based on Petitioner’s pleading,97 we evaluate
whether Respondent has demonstrated that its mark AYOUB CARPET SERVICE
acquired distinctiveness at any of the following points in time: (1) as of June 26, 2013,
the date five years prior to the execution of Respondent’s declaration that its Word
Mark had acquired distinctiveness through “substantially exclusive and continuous
use” in commerce; (2) as of the November 6, 2018 registration date; and (3) at the
time of trial. A respondent “is not limited to evidence that was submitted to the
Patent and Trademark Office during the application process.” Neapco, 1989 TTAB
LEXIS 43, at *3. “Rather, in a cancellation proceeding, the [respondent] may rely
upon all evidence which establishes that as of the [relevant period], the registered
mark had acquired a secondary meaning.” Id. This includes not only the evidence
submitted at trial but also any relevant evidence submitted during prosecution. See,
e.g., Grote Indus., Inc. v. Truck-Lite Co., LLC, No. 91196923, 2018 TTAB LEXIS 105,
at *47 (Board reviewed “the entire record pertaining to acquired distinctiveness of
the Penta-Star Pattern,” including “all evidence made of record during prosecution of
the subject application and application … which matured into the subject
registration), judgment rev’d and vacated by consent decree on other grounds, No.
97 Second Amended Petition to Cancel ¶ 24, 42 TTABVUE 19.

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1:18-cv-00599 (W.D.N.Y. June 8, 2022); see also Trademark Rule 2.122(b), 37 C.F.R.
§ 2.122(b)). In other words, we analyze all evidence, including evidence submitted
both during prosecution and at trial, to determine consumer perception of
Respondent’s Word Mark throughout each of these three time frames.
In Converse, Inc. v. ITC, 909 F.3d 1110, 1120 (Fed. Cir. 2018), the U.S. Court of
Appeals for the Federal Circuit set forth the following factors in assessing whether a
mark has acquired distinctiveness: (1) association of the mark with a particular
source by actual purchasers; (2) length, degree, and exclusivity of use; (3) amount and
manner of advertising; (4) amount of sales and number of customers; (5) intentional
copying; and (6) unsolicited media coverage of the product embodying the mark
(“Converse factors”); accord Heritage All. v. Am. Pol’y Roundtable, 133 F.4th 1063,
1069-70 (Fed. Cir. 2025) (applying Converse factors to determine whether merely
descriptive mark had acquired distinctiveness for purposes of determining priority
under Section 2(d)); In re Uman Diagnostics AB, No. 88960633, 2023 TTAB LEXIS
77, at *49 (citing Converse factors to determine acquired distinctiveness under
Section 2(f) of a merely descriptive mark). On this list, no single factor is
determinative and “[a]ll six factors are to be weighed together in determining the
existence of secondary meaning.” Id. The Federal Circuit recently clarified that the
six Converse factors are non-exhaustive; that “direct and circumstantial evidence may
be considered;” and that not all six factors are always relevant in any particular case.
Heritage All., 133 F.4th at 1070.

Cancellation No. 92080469
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a. Association of the Trademark with a Particular Source by
Actual Purchasers
This factor is “typically measured by customer surveys,” Converse, 909 F.3d at
1120, because consumer surveys are a form of direct evidence of acquired
distinctiveness. Schlafly, 909 F.3d at 425 n.2 (internal citations omitted). The record
is devoid of evidence of consumer surveys, consumer market research, or consumer
reaction studies.
Consumer declarations and testimony are other forms of direct evidence of
acquired distinctiveness. At trial, two witnesses who own businesses in the DMV
market that directly compete with both parties opined that the mark AYOUB
CARPET SERVICE is “well known and widely recognized” as a “top-rated
professional and highly skilled carpet and rug cleaning company” in the Washington
D.C. metropolitan area.”98 Respondent also submitted three letters each dated May
25, 2023 from owners of carpet cleaning businesses in Dulles, Virginia; Dallas, Texas;
and Austin, Texas essentially touting Respondent as a well-known and reputable
98 Decl. of Jimmy Ayoub, President and owner of George Ayoub Carpet & Rug Care LLC
(Sept. 6, 2024) ¶ 3; 77 TTABVUE 40 (“I have known Daniel Ayoub and his business, Ayoub
Carpet Service, for more than 20 years. Ayoub Carpet Service and George Ayoub Carpet &
Rug Care are competitors. The Ayoub Carpet Service mark is well known and widely
recognized to be associated with a top rated professional and highly skilled carpet and rug
cleaning company in the Washington DC area.”); Second Decl. of Joe Hadeed, President,
owner of Hadeed Carpet Cleaning Inc. (Sept. 6, 2024) ¶ 4; 77 TTABVUE 43 (“I have known
“Danny” Ayoub, and his well-respected rug care and carpet cleaning business, since 1990.
The Ayoub Carpet Service mark and tradename is well known and widely recognized as a
top-rated professional and highly skilled carpet and rug cleaning company in the
Washington, D.C. metropolitan area. Ayoub Carpet Service and Hadeed Carpet Cleaning
have been direct but friendly competitors for generations.”).

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business.99 “[D]eclarations from industry professionals attesting they recognize [the
mark] at issue as [Respondent’s mark], though entitled to some weight, are not
sufficient … to establish acquired distinctiveness.” In re MK Diamond Prods., No.
86813875, 2020 TTAB LEXIS 263, at *71; see also In re Meyer & Wenthe, Inc., 267
F.2d 945, 924 (CCPA 1959) (“It is incumbent upon the applicant to submit proof that
its mark is distinctive, not only to ‘experts’ in the field, but to the purchasing public.”).
As competitors, none of these witnesses are actual consumers of Respondent’s carpet
services, meaning that their testimony carries little probative weight on consumer
perception.
Respondent did make of record declarations from several residential and
commercial clients. Each of those customer declarations state that they recognize
ACS as “a shorthand for Ayoub Carpet Service;” that “Ayoub Carpet Service and ACS
have the same meaning”; and that when they “see ACS, [they] know it means Ayoub
Carpet Service.100 These customer declarations have no bearing on the acquired
distinctiveness of Respondent’s word mark AYOUB CARPET SERVICE because they
merely indicate that these consumers equate the coined abbreviation ACS with that
99 Letters dated May 25, 2023 from 75 TTABVUE 474-76. As noted in Section III, under the
Parties’ Joint Trial Stipulation, the letters are authentic and admissible.
100 Declarations of Erik J. Weisskopf, Amy Marchiando, Tom and Dee Geib, Susan Safran,
Erin Kevin, Hans Boehmer and Julie Johnson, Drew Lawless, David Morgan (Vice President
of Finance and Treasurer of Great American Restaurants), Eric Whittaker (E & I Plumbing),
Diane M. Wood, Chris Corridon, Jim Corridon (President, Corridon Electric Co.), Patricia
Mertz Esswen, Maggie Accardo, 78 TTABVUE 202-03, 209-10, 219, 229, 240, 259, 268, 281,
283, 307, 313.

Cancellation No. 92080469
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mark, not that they recognize AYOUB CARPET SERVICE as pointing uniquely to
Respondent as a source indicator for either of its Class 35 or 37 services.
Consumer reviews may also measure “consumer association of a mark with a
particular source.” See Brooklyn Brewery Corp. v. Brooklyn Brew Shop, LLC, No.
91223982, 2023 TTAB LEXIS 48, at *16 (defendant’s testimony that there “have been
many thousands of posts on popular message boards including homebrewtalk.com,
beeradvocate.com, and reddit.com related to Brooklyn Brew Shop products” …
“suggest that these consumers associate the applied-for mark with [defendant] as the
source of the kits”) aff’d in part, rev’d in part, 17 F.4th 129 (Fed. Cir. 2021).
Respondent’s owner and President Daniel Ayoub testified that Respondent is
“mentioned hundreds of times as Ayoub Carpet Service in reviews.”101 As
corroboration,102 Respondent submitted printouts of online customer reviews posted
on third-party platforms purportedly referring to Respondent’s mark AYOUB
CARPET SERVICE. We have disregarded customer reviews referring exclusively to
ACS since that is not the mark under consideration. We have also disregarded
undated customer reviews displayed on the Google Chantilly and Google Falls
Church Northern Virginia websites.103 The remaining evidence discussed below is
101 Discovery Deposition of Daniel Ayoub (Sept. 19, 2024), 66 TTABVUE 259.
102 Respondent submitted this evidence under notice of reliance. The better practice would
have been to submit this evidence as an exhibit to Daniel Ayoub’s Discovery Deposition.
Customer reviews of Respondent refer to it as AYOUB CARPET SERVICE. 72 TTABVUE
49-72 (e.g., “Ayoub Carpet Service is absolutely terrific.”) (“We are extremely pleased with
Ayoub carpet service.”) (“We have used Ayoub Carpet Service for many years…”); 72
TTABVUE 73-84, 89-118, 119-29, 134-140, and 141-45 (more examples of same).
103 72 TTABVUE 91-129.

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limited to customer references to Respondent’s “Carpet, rug, …. cleaning services” in
Class 37:
● Approximately 20 customer reviews from Angie’s List spanning the years
2014-2020;104
● Approximately 35 customer reviews from Customer Lobby from 2018-2021 and
2023-2024;105 and
● Approximately a dozen reviews from Yelp Chantilly and Falls Church in
Northern Virginia from the years 2014-2015 and 2020-2022.106
Through Daniel Ayoub’s testimony along with representative samples posted on
these third-party platforms, we have some evidence that consumers perceived
Respondent’s word mark AYOUB CARPET SERVICE as a source indicator for its
carpet and rug cleaning services in Class 37 at the time of prosecution, registration
and trial. However, for Respondent’s “Retail store services featuring carpets, rugs
and flooring” in Class 35 there are no customer reviews in the record pertaining to
this Converse factor.
b. Length, Degree, and Exclusivity of Use
Respondent’s owner Daniel Ayoub testified that Respondent “has been doing
business under the name and mark AYOUB CARPET SERVICE (the ‘AYOUB
104 72 TTABVUE 49-72.
105 72 TTABVUE 74-84.
106 72 TTABVUE 135-145.

Cancellation No. 92080469
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CARPET SERVICE Mark’) continuously since at least 1987.”107 Petitioner disputes
this date, contending that Respondent abandoned use of AYOUB CARPET SERVICE
from approximately 1992 until 2000-2002 before resuming use.
Whether Respondent has been using its mark for over 20 or 30 years is not
outcome determinative here. “While long use of a mark is a relevant factor to consider
in determining whether a mark has acquired distinctiveness, it is not necessarily
conclusive or persuasive,” and in fact is “greatly diminished” in cases where the use
is not “substantially exclusive.” Stuart Spector Designs Ltd. v. Fender Musical
Instruments Corp. No. 91161403, 2009 TTAB LEXIS 132, at *64 (internal citation
omitted). This is especially true of marks that are primarily merely surnames because
surnames are shared by more than one individual with a legitimate interest in using
their own name in business. See Earnhardt, 864 F.3d at 1377; Darty et Fils, 759 F.2d
at 17.
As discussed in Section VII.C.1, we have already made a finding that between the
years June 26, 2013 through June 26, 2018, Respondent’s use of the surname “Ayoub”
as part of its mark AYOUB CARPET SERVICE was not “substantially exclusive” in
the DMV market in connection with its identified services in Classes 35 and 37. This
is still the case today with the continued presence of George Ayoub Carpet Care,108
107 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 3;
75 TTABVUE 7; Second Decl. of Daniel Ayoub in Support of Respondent’s Partial Motion for
Summary Judgment at ¶ 1; 78 TTABVUE 329.
108 Decl. of Jimmy Ayoub, President and Owner of George Ayoub Carpet & Rug Care (Sept.
6, 2024) ¶ 2; 66 TTABVUE 834 (“My business has been in operation in the Washington, D.C.
metropolitan areas since 1987) and printouts from http://georgeayoubcarpet.com accessed on
10/22/2013 at 66 TTABVUE 99-101; see also Daniel Ayoub September 10, 2014 Discovery
Deposition 66 TTABVUE 346-348 (testified that the following entities were using the Ayoub

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Hanna Ayoub Rug Cleaning;109 Ray Ayoub Oriental Rugs,110 and of course Petitioner
Ayoub N&H. See Galperti II, 17 F.4th at 1147; see also Levi Strauss, 742 F.2d at 1403.
As with the earlier 2013-2018 time period, such uses in today’s DMV market of the
surname “Ayoub” by businesses unrelated to Respondent rise to the level of being
“significant” and not “inconsequential.” See Galperti I, 791 Fed. Appx. at 910.
Respondent argues that actual consumer confusion amongst the various “Ayoub”
businesses arising from their concurrent use of the surname in the DMV constitutes
evidence of acquired distinctiveness of Respondent’s mark. The most relevant
evidence on this points are the following two declarations from actual consumers:
● Sheridan Swope, a resident of Arlington, VA, testified that she has used “Ayoub
Carpet Cleaning Service to clean rugs for several years dating back to 2016” and that
in 2022, she “mistakenly contacted and engaged George Ayoub Carpet & Rug Care to
clean two rugs in [her] home. … I was confused because both Ayoub Carpet Service
and George Ayoub Carpet & Rug Care use the name Ayoub in their company name
and advertising.”111
surname in carpet and rug cleaning businesses: Ayoub N & H, Hanna Ayoub, George Ayoub,
Ayoub Hardwood Floors).
109 Second Decl. of Joe Hadeed, owner of Hadeed Carpet Cleaning Business (Sept. 6, 2024)
¶ 3; 66 TTABVUE 538 (“My business has been in operation in the Washington, D.C.
metropolitan areas since 1955. I purchased the Hanna Ayoub Rug Cleaning business in 2018
and I still use the Hanna Ayoub Rug Cleaning Trademark.”).
110 Discovery Deposition of Daniel Ayoub (Sept. 19, 2024), 66 TTABVUE 21-222 (“Q. A few
minutes ago you testified that there are five, six or seven different companies using the Ayoub
name in connection with rug, floor-related services. Can you identify those for me please? A.
So you have us, Ayoub Carpet Service; you’ve got Ayoub N & H; you’ve got George Ayoub
Carpet Care. You’ve got Hanna Ayoub Rug Cleaning. You’ve got Ray Ayoub Oriental Rugs.
Those are the ones that come to mind.”).
111 Decl. of Sheridan Swope (Sept. 25, 2024) ¶ 3; 77 TTABVUE 68.

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● Raymond McGarvey, a resident of Potomac, Maryland who has been a regular
customer of one of the parties’ competitors, Hanna Ayoub Rug Cleaning, for
“approximately 50 years” stated that in July 2023, he mistakenly contacted Ayoub
Carpet Service because he “was confused due to the existence of several companies in
the carpet cleaning business that used the name Ayoub in their company name and
advertising.”112
As we found in Section VII.C.1 in evaluating whether Respondent’s use was
exclusive during the June 26, 2013 through June 26, 2018 timeframe, we attribute
these more recent examples of customer confusion to the common use of the shared
surname “Ayoub” in the same geographic market as part of their mark or trade name,
not consumer recognition that Respondent’s mark AYOUB CARPET SERVICE
uniquely points to Respondent’s services. The testimony shows that the source of the
actual confusion stems from non-exclusive use of the shared surname “Ayoub,” not
from customer recognition of Respondent’s mark AYOUB CARPET SERVICE as
distinctive.
In sum, the record shows that the use of the surname Ayoub in the DMV market
continued not to be “substantially exclusive” either at the time of prosecution,
registration or trial.
112 Decl. of Raymond McGarvey (Sept. 18, 2024) ¶¶ 2-3; 77 TTABVUE 66.

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c. Amount and Manner of Advertising
i. Amount of Advertising
At trial, Respondent’s owner and President, Daniel Ayoub, testified that
Respondent has spent “nearly ten million dollars in marketing efforts in 37 years,”
and that it “promote[s] one million, two million worth of pieces of advertising,
advertising piece, [and] printed ads that go out.”113 A significant shortcoming with
his testimony is that the reported advertising expenditures are not linked to the
AYOUB CARPET SERVICE mark. None of the supporting documentary evidence –
the profit-and-loss statements, balance sheets and tax returns from 2001-2023114 –
allocates advertising expenditures to this mark. Daniel Ayoub himself even admits
that the raw advertising expenditures are not tied to a specific mark or trade name.115
As a result, we cannot determine what portion, if any, is attributable to Respondent’s
Word Mark AYOUB CARPET SERVICE rather than its Composite Mark
. While these figures on their face appear substantial, without
apportionment to the mark AYOUB CARPET SERVICE, we are unable to credit this
evidence as contributing to its acquired distinctiveness. See Keystone Consol., 2024
TTAB LEXIS 290, at *48 (because the advertising figures were not broken down by
113 Discovery Deposition of Daniel (Sept. 19, 2024), 66 TTABVUE 259.
114 76 TTABVUE (confidential). 66 TTABVUE 236–39; 262 (“Q: Do they—the financial
statements have separate line items to track the marketing expense for each trade name that
your company has used? A: No.”).
115 66 TTABVUE 236–39; 262 (“Q: Do they—the financial statements have separate line items
to track the marketing expense for each trade name that your company has used? A: No.”).

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mark, the Board was unable to attribute the advertising expenditures solely to a
single mark); cf. Target Brands, Inc. v. Hughes, No. 91182064, 2007 TTAB LEXIS 94,
at *15 (although advertising expenditures were substantial, because the catalogs and
Internet website advertisements displayed numerous products under a variety of
marks, the Board was unable to allocate the advertising expenses to the mark at
issue).
Daniel Ayoub did, however, aver in his declaration submitted on summary
judgment that “[b]ased on my knowledge of corporate records and financial
documents associated with [Respondent’s] use of the AYOUB CARPET SERVICE
Mark,” that “between 2002 and 2013” “[Respondent] spent approximately $194,000
per year on all forms of advertising and promotion of the AYOUB CARPET SERVICE
Mark.”116 This testimony is clearly linked to Respondent’s Word Mark and is relevant
to the time period beginning with Respondent’s claim of acquired distinctiveness as
of 2013.
ii. Manner of Advertising
“Manner of advertising” may include traditional tools such as television and radio
ads; print ads (e.g., newspapers, magazines, neighborhood newsletters); business
cards; invoices; customer survey cards; employee uniforms; outdoor signage; billboard
advertisements; direct marketing to consumers (e.g., direct mailers, doorhangers,
telemarketing, sales representatives); philanthropy (e.g., fundraisers and community
116 Decl. of Daniel Ayoub in Support of Respondent’s Motion for Summary Judgment (Nov. 8,
2023) ¶¶ 20 and 21; 75 TTABVUE 11-12.

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sponsorship of athletic teams); trade shows; and sales promotions (e.g., coupons,
rebates, and discounts). “Manner of advertising” may also include digital marketing
tools such as consumer-facing or business-to-consumer (“B2C”) websites; SEO to
increase website visibility and traffic; search engine marketing (e.g., pay-per-click
(“PPC”) ads); direct email blasts; digital coupons (e.g., e-coupons and or providing
online coupons through third-parties such as Groupon); social media marketing (e.g.,
Facebook and Instagram); social media influencer marketing; and content marketing
(e.g., blogs and blog posts, videos, and podcasts).
Daniel Ayoub testified that “[o]ver the decades,” Respondent has “marketed its
carpet services under the AYOUB CARPET SERVICE Mark to millions of
customers,”117 and that Respondent “has engaged in extensive advertising and
promotion of the AYOUB CARPET SERVICE Mark and [Respondent’s] [s]ervices
offered under it through various forms of media.”118 His testimony and evidence
consists of the following:
● Mailers and postcards. Daniel Ayoub testified Respondent “has sent over one
million mailers and postcards advertising the [Respondent’s] [s]ervices with the
AYOUB CARPET SERVICE Mark to potential customers,” and authenticated “a
117 Decl. of Daniel Ayoub in Support of Respondent’s Motion for Summary Judgment (Nov. 8,
2023) ¶ 4; 75 TTABVUE 7.
118 Decl. of Daniel Ayoub in Support of Respondent’s Motion for Summary Judgment (Nov. 8,
2023) ¶ 8; 75 TTABVUE 8.

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representative sample of mailers and postcards sent between the years 2002-2022
maintained in the regular course of [Respondent’s] business.”119
● Website advertising. Daniel Ayoub testified that Respondent has been
advertising its services under the AYOUB CARPET SERVICE mark “for over 20
years through its website at www.rugcare.com.”120 As documentary support, his
declaration attaches representative “archived versions of the website dating between
2003 and 2012.”121 He also testified that Respondent has been using “lots of Google
advertising,” and banner ads since at least 2014 up until now.122
● Business cards. Daniel Ayoub testified that “[s]ince 1987, [Respondent] has
handed out business cards to customers and potential customers. Thousands of a first
version showing the mark were handed out between 1987 and at least 1993.”123
● Work vehicles and building signage. Daniel Ayoub testified that Respondent
“prominently displays its AYOUB CARPET SERVICE Mark on its work vans and
buildings,” and made of record “representative samples of AYOUB CARPET
SERVICE signage”124 all of which are undated. Other evidence in the record, shows
119 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 14;
75 TTABVUE 10, 488-489.
120 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 17;
75 TTABVUE 10-11, 409-419.
121 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 17;
75 TTABVUE 10-11, 409-419.
122 66 TTABVUE 239.
123 78 TTABVUE 337-339, 354-357. See also 78 TTABVUE 338-39, 358-59. Witnesses support
this use of the mark. 77 TTABVUE 34, 37-38 (employee corroboration for 1993 through
1990s); 77 TTABVUE 47, 52-53 (vendor printer corroboration for 1993 through 1990s).
124 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 10;
75 TTABVUE 8.

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display of the mark on work trucks, work vans and building signage from 1987-
1998.125
● Promotional items. Daniel Ayoub testified that Respondent “has offered
promotional items” featuring the mark AYOUB CARPET SERVICE to advertise its
services, with undated photos of representative items such as pens, decals and carpet
spot removal cleaner.126 Our review of the photos shows that most of the items display
Respondent’s Composite Mark instead of its Word Mark.
● Work orders and invoices. Daniel Ayoub testified that “[s]ince its inception,
[Respondent] has placed its AYOUB CARPET SERVICE Mark on work orders and
invoices that are provided to its customers for the [ ] [s]ervices rendered.” He
submitted a representative sample of these work orders and invoices, “many dating
from the company’s founding in 1987” through 1992.127
● Doorhanger ads and coupons. Daniel Ayoub testified that Respondent
“distributed advertisements and coupons under the mark [AYOUB CARPET
SERVICE] on thousands of doorhangers throughout the 1990s.”128
125 75 TTABVUE 7, 15; 78 TTABVUE 330-332. Receipts and witnesses support this use of the
mark. 78 TTABVUE 7, 316-317 (9/4/1992 receipt from Signs By Tomorrow); 78 TTABVUE
331-332, 342-343 (same); 77 TTABVUE 7-8 (employee corroboration for 1996-98); 77
TTABVUE 32-33 (employee corroboration for 1993-98); 77 TTABVUE 60-62 (neighbor
corroboration of truck signs for 1993-97).
126 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶
10; 75 TTABVUE 8, 115-19.
127 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 9;
75 TTABVUE 8, 50, and 113.
128 78 TTABVUE 8, 38-39; 333, 344-345. Work orders and witnesses support this use of the
mark. 78 TTABVUE 9, 51-52 (1994 work order with attached coupon from doorhanger
advertisement); 78 TTABVUE 335, 346-347 (same); 77 TTABVUE 8, 11-12 (employee

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● Telephone directory advertisements. Daniel Ayoub testified that Respondent
“has also regularly placed advertisements for [its] [s]ervices offered under the
AYOUB CARPET SERVICE Mark in telephone directories throughout the
Washington, DC Metro area,”129 with representative samples dated from 2002 and
2014 such as The Community Phonebook for various areas in Northern Virginia, the
Yellow Book Loudoun County, and the Super Yellow Pages editions for the District
of Columbia and Northern Virginia.
● Print ads. Daniel Ayoub made of record with his testimony “copies of
representative advertisements and publicity pieces” many of which display AYOUB
CARPET SERVICE from 2003 through 2012, including pieces featured in 2003, 2008,
and 2012 in the WASHINGTONIAN magazine and THE WASHINGTON POST.130
● Tradeshows. Daniel Ayoub authenticated “photographs and materials showing
[Respondent’s] participation at tradeshows where the AYOUB CARPET SERVICE
Mark was prominently featured.”131 The photographs and materials show
Respondent’s participation at the Capital Home & Garden Show at the Dulles Expo
Center from 2005-2008.132
corroboration for 1996 through 1990s); 77 TTABVUE 20, 23-24 (same between 1999 and
2000); 77 TTABVUE 46-47 (vendor printer corroboration for 1993 and throughout 1990s).
129 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 11;
75 TTABVUE 125-232. We have disregarded any examples not displaying the mark.
130 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 12;
75 TTABVUE 9, 233-350.
131 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 13;
75 TTABVUE 9, 478-487.
132 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 13;
75 TTABVUE 9, 478-487.

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● Customer survey cards. Daniel Ayoub testified that since 2000, it has
“distributed thousands” of customer survey cards showing the mark AYOUB
CARPET SERVICE.133
● Paper and electronic coupons; email discounts. Daniel Ayoub also testified that
Respondent “has also utilized coupons to provide its valued customers with discounts
or rebates on [Respondent’s] Services offered under the AYOUB CARPET SERVICE
Mark.”134 Representative examples are from Respondent’s earliest coupons from
1990; a representative sample of email advertisements offering discounts for services
offered under the AYOUB CARPET SERVICE mark; and an e-coupon from 2007
offered through Valpak.135
● Philanthropic community activities. Daniel Ayoub testified that Respondent
“promoted the AYOUB CARPET SERVICE Mark through its philanthropic
endeavors by partnering with community organizations, educational institutions,
and school affiliated athletic teams,” with documentary evidence from 2003-2012.136
A major problem with this evidence is that much of Respondent’s documentary
evidence is undated or sporadic in nature. For example, Respondent testified that it
advertises its services via its own website, but the documentary evidence of archived
133 78 TTABVUE 335-336, 348-353. Witnesses support this use of the mark. 77 TTABVUE
9-10, 13-18 (employee corroboration); 77 TTABVUE 21-22, 25-30 (same); 77 TTABVUE 48-
49, 54 59 (vendor printer corroboration).
134 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 16;
75 TTABVUE 10.
135 Decl. of Daniel Ayoub in Support of its Motion for Summary Judgment (Nov. 8, 2023) ¶ 16;
75 TTABVUE 10.
136 Decl. of Daniel Ayoub in Support of Motion for Summary Judgment (Nov. 8, 2023) ¶ 15;
75 TTABVUE 10, 351-399.

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website captures end in 2012. Respondent did not provide data analytics linking
present-day consumers to the Respondent’s website such as the number of visits and
page views. Other digital metrics such as dated banner ad screenshots or digital
counters are absent.
That said, we do have testimony that Respondent has used for over two decades
and continues to use mailers, postcards, website advertisements, building and work
van signage, telephone directory ads, coupons and customer survey cards. This
testimony is probative and does carry some weight.
d. Amount of Sales and Number of Customers
Daniel Ayoub testified that Respondent has “done over 100 million dollars [in
sales] in 37 years;” “has over 80,000 customers in [its] file” and has “over 70 percent
of [its] business, and maybe even higher, that is repeat or referrals.”137 As
documentary support, Respondent again relies on the same profit-and-loss
statements, balance sheets and tax returns from 2001-2023.138
The reported sales appear impressive on their face. However, Respondent’s
testimony and evidence suffer from the same shortcoming as its reported advertising
expenditures. Because the profit-and-loss statements, balance sheets and tax returns
do not allocate sales figures to a specific mark, we have no way of knowing what
137 Discovery Deposition of Daniel Ayoub (Sept. 19, 2024), 66 TTABVUE 259.
138 76 TTABVUE (confidential). 66 TTABVUE 236–39; 262 (“Q: Do they—the financial
statements have separate line items to track the marketing expense for each trade name that
your company has used? A: No.”).

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percentage of services were rendered under its AYOUB CARPET SERVICE word
mark as opposed to its composite mark .139
Daniel Ayoub, however, did aver in his declaration submitted on summary
judgment that “[b]ased on my knowledge of corporate records and financial
documents associated with [Respondent’s] use of the AYOUB CARPET SERVICE
Mark, [Respondent] has had continuous sales under the AYOUB CARPET SERVICE
Mark since at least 1987, and that “between 2002 and 2013, our gross revenues per
year exceeded $2,000,000.”140 This gross revenue sales data is a relevant indicator as
it relates to the year 2013, but not as to 2018, the year of registration, or at trial.
As to the number of customers, 80,000 on its face appears to be a notable metric
for a family-owned regional business. We therefore find that this evidence contributes
towards a finding of acquired distinctiveness of Respondent’s mark AYOUB CARPET
SERVICE.
e. Intentional Copying
We now direct our attention to whether the record shows intentional copying of
Respondent’s mark AYOUB CARPET SERVICE. “Copying is only evidence of
secondary meaning if the [copier’s] intent in copying is to confuse consumers and pass
off his product as the plaintiff’s.” Stuart Spector Designs, 2009 TTAB LEXIS 132, at
139 Discovery Deposition of Daniel Ayoub (Sept. 19, 2024), 66 TTABVUE 236–39; 262.
140 Ayoub Decl. on Summary Judgment (Nov. 8, 2023) ¶¶ 20 and 21, 75 TTABVUE 11-12.
These figures submitted in connection with Respondent’s summary judgment motion were
not designated confidential.

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*77-78 (internal quotation omitted). This can be shown through circumstantial
evidence. See Tone Bros. v. Sysco Corp., 28 F.3d 1192, 1201 (Fed. Cir. 1994).
Respondent frames Petitioner’s SEO practices on the Internet as intentional
copying of its mark, pointing to evidence that when “Ayoub Carpet Service” is
searched on Google, Petitioner’s sponsored website ads are retrieved as search
results.141 In support, Respondent points to the following screenshot of the Google
search engine result which was authenticated by Petitioner’s witness Kris Ayoub
during his Fed. R. Civ. P. 30(b)(6) discovery deposition:
141 Discovery Deposition of Kris Ayoub (Sept. 26, 2024), 74 TTABVUE 57-58 (Q. I’m going to
show you what’s been marked as NH-11. This is a Google search result for the quoted phrase
Ayoub Carpet Service showing Ayoub N&H as a sponsored link, correct? A. Correct.) and Ex.
NH-11 (undated screenshot capture reproduced below), 74 TTABVUE 248)).
Petitioner objected to other similar screen captures as having “little probative value,” namely
a Google computer and cell phone screenshots submitted under notice of reliance (Exs. 11
and 12, 72 TTABVUE 29 and 31), on the grounds that they are undated and not associated
with any testimony. See Petitioner’s Appendix of Evidentiary Objections, 79 TTABVUE 47.
We agree that without testimony, this evidence constitutes hearsay. And, because the
computer screenshots are undated, the Board is unable to ascertain whether the objected-to
screenshot is the same screenshot that was authenticated by testimony.

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Respondent further cites evidence that Petitioner’s Google sponsored website ads are
also triggered by searches for “Ayoub carpet service” coupled with specific locations
in Northern Virginia cities, such as the Chantilly, Virginia ad shown below:142
Respondent maintains that Petitioner’s SEO strategy shows Petitioner’s intent to
confuse Respondent’s customers because Petitioner is based in Maryland and only
has drop-off locations in Virginia that are at different locations than Respondent’s
locations.143
We disagree. This Converse factor is limited to copying of a mark or trade dress
by competitors in the marketplace, not potentially misleading search engine
optimization practices. Cf. In re Sausser Summers, PC, No. 88626569, 2021 TTAB
LEXIS 204, at *25-26 (Board rejected applicant’s argument that third-party
“clickbait” uses of the descriptive/generic wording “online trademark attorneys”
constituted intentional copying because the uses did not involve applicant’s mark).
We acknowledge that Petitioner’s online SEO strategies may appear troubling to
Respondent. But it is no surprise that Petitioner, or for that matter, any other Ayoub
142 72 TTABVUE 21-27 (displaying numerous similar Google website ads for Petitioner).
143 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶¶ 5-6, 65 TTABVUE 2; see also Discovery
Deposition of Kris Ayoub (Sept. 26, 2024), 74 TTABVUE 23 (testifying that Respondent has
never had a drop-off location in Falls Church or Chantilly in Northern Virginia).

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competitor websites in the DMV, would be retrieved based on a search comprised of
the surname “Ayoub” and descriptive or generic wording such as “carpet service.”
This is a risk Respondent took when it decided to adopt its mark.
Respondent also argues that Petitioner intentionally copied its Word Mark by
“[running] Groupon website ads using the name ‘Ayoub Carpet Service.’”144
Respondent cites to two separate email threads between Respondent and Groupon
asking about pop up ads from an individual’s Comcast Xfinity personal email account.
The ads appeared under the moniker “Ayoub Carpet Service – Kensington” with an
offer of “$199 Buy Now (-50%).”145
144 Respondent’s Brief, p. 41; 81 TTABVUE 49.
145 72 TTABVUE 34-37, 38-43.

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The first email thread from Respondent to Groupon’s merchant support department
is dated February 21, 2015 inquiring about a “Groupon you are running for one of our

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competitors [AYOUB N&H]” and inquiring as to who created the ad.146 The second
email chain from Respondent to Groupon’s merchant support is dated February 26,
2015 and contains the same inquiry.147 The email chain itself is insufficient to
establish the requisite intent since none of the emails either originated from, or were
directed to, Petitioner.
Respondent, however, urges us to draw an inference of intent based on
circumstantial evidence. On the face of the Groupon ad itself, the only mark or brand
name displayed was “Ayoub Carpet Service”; nowhere did AYOUB N&H appear.
Respondent contends that the fact that Petitioner’s Groupon offer was later revised
supports a finding that Petitioner intended to confuse consumers and pass off
Petitioner’s carpet and rug cleaning services as Respondent’s. A different more recent
Groupon ad run on Petitioner’s behalf no longer includes “Ayoub Carpet Service” but
instead offers “Up to 46% Off on Carpet Cleaning at Ayoub N & H Rug Cleaning.”148
Kris Ayoub, Petitioner’s “co-CEO” when shown the more recent Groupon ad and
asked about past practices, testified as follows:149
Q. I’m showing you printouts for Groupon advertising for N&H, correct?
A. Correct.
Q. And I believe you testified earlier that NH has been doing Groupon advertising
for the past 10 years?
A. I believe so. I don’t know the exact date but I’m guessing.
146 72 TTABVUE 35.
147 72 TTABVUE 39.
148 Discovery Deposition of Kris Ayoub (Sept. 26, 2024), 74 TTABVUE 36.
149 Discovery Deposition of Kris Ayoub (Sept. 26, 2024), 74 TTABVUE 54-57.

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…
Q. Do you fill out fields with Groupon as to what you want them to show on the
Groupon?
A. At the -- I haven’t done this since we signed up. I think at the time, somebody
called me and talked to me about what the offer would be and what kind of things
we would offer, and then they put it up, I guess.
Q. So this Groupon that I’m looking at here for NH, it’s been the same since you
signed up with Groupon?
A. Yes, other than pricing, but I believe it’s always been for cleaning of up to two
area rugs.
Q. How about the text, “Up to 51 percent off on carpet cleaning at Ayoub N&H
Rug Cleaning” that I’m reading on the Groupon, has that text always been the
same?
A. It depends on the amount that we tell them that we want to charge and it
depends on what sales or however they advertise it so that -- I don’t know. That
could change.
Q. Do you give Groupon the words to use for the Groupon?
A. No.
Kris Ayoub’s testimony is too vague and ambiguous to draw any conclusions or
infer intent. Essentially his testimony amounts to that “Groupon does their
advertising. I don’t know how they do that. … We don’t control their advertising or
how they advertise it.”150 His testimony is not sufficiently developed for us to find
evidence of intentional copying.
150 Discovery Deposition of Kris Ayoub (Sept. 26, 2024), 74 TTABVUE 54-56.

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f. Unsolicited Media Coverage
Respondent contends that its evidence of unsolicited media coverage “creates an
even wider exposure to consumers”151 of its mark AYOUB CARPET SERVICE.
Respondent offers only two instances, both from THE WASHINGTON POST: a January
7, 2015 online article entitled “How to clean a muddy rug,” identifying “Ayoub Carpet
Service” as a professional rug cleaner in the DMV market;152 and a February 23, 2017
Loudoun County, Virginia edition of the newspaper recommending “Ayoub Carpet
Service” for wool carpets repairs in response to reader inquiry.153 Two isolated
occurrences from approximately a decade ago are of minimal persuasive value.
Unsolicited awards and accolades may also constitute evidence of acquired
distinctiveness. Respondent’s owner Daniel Ayoub declared that Respondent’s “long
history of providing excellent service under the AYOUB CARPET SERVICE Mark
has garnered significant praise and accolades, including recognition as a top tier
service provider by Washington Consumer Checkbook, Best Picks Report, Angi
(formerly Angie’s List), and the Virginia WeCare Program.” He submitted with his
declaration “representative examples of honors” Respondent has received:
● Virginia WeCare Program’s 2004 award for outstanding customer service in
Fairfax County, Virginia;154
151 Respondent’s Brief, p. 42; 81 TTABVUE 50.
152 72 TTABVUE 44-47.
153 72 TTABVUE 130-133.
154 Decl. of Daniel Ayoub in support of Respondent’s Motion for Summary Judgment ¶ 6; 75
TTABVUE 7, 21-25 and 36-39 (photocopy of directory).

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● Washington Consumer Checkbook Best Picks Report Premiere Northern
Virginia editions for the years 2011, 2012 and 2023 recommending Ayoub Carpet
Service as a “Best Pick”; 155
● Angie’s List Washington, D.C. July 2012 publication with an advertisement
touting Respondent as an “Honor Roll” business; 156 and
● Angie’s List Super Service Award winner in 2023.157
In addition to the above accolades, as discussed previously in Section V.B., the
record shows that Respondent has held the Institute of Inspection Cleaning and
Restoration Certification (“IICRC”) since at least 1992, and has been a certified
member of The Oriental Rug Retailers of America (“ORRA”) and the Restoration
Industry Association (“RIA”) since 2005 and 2007, respectively.
This evidence too suffers from shortcomings. Virginia WeCare Program’s 2004
award long precedes any of the relevant time frames. While Respondent has garnered
recognition for the quality of its services, the mentions are too few.
155 Decl. of Daniel Ayoub in support of Respondent’s Motion for Summary Judgment ¶ 6; 75
TTABVUE 7 and 20 (certificate).
156 Decl. of Daniel Ayoub in support of Respondent’s Motion for Summary Judgment ¶ 6; 75
TTABVUE 7 and 35 (copy of publication).
157 Decl. of Daniel Ayoub in support of Respondent’s Motion for Summary Judgment ¶ 6; 75
TTABVUE 7 (“On November 8, 2023, I accessed the website
https://www.prweb.com/releases/ayoub_carpet_service_is_awarded_angie_s_list_super_serv
ice_ award_for_carpet_cleaning_rug_cleaning_and_repairs/prweb11620304.htm, which
references the selection of AYOUB CARPET SERVICE as an Angie’s List Super Service
Award winner, , a true and correct copy of which is attached …”

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g. Summary of the Converse Factors
The final step is to examine the totality of evidence to determine whether
Respondent has demonstrated acquired distinctiveness. Converse, 909 F.3d at 1120.
We have some direct evidence of consumer association of AYOUB CARPET
SERVICE with Respondent through Daniel Ayoub’s testimony, corroborated with
representative samples of consumer reviews posted on third-party platforms such as
Yelp and Angie’s List. But the consumer reviews pertain only to the Class 37 rug and
carpet cleaning services, not Respondent’s Class 35 retail services. Respondent’s long
use of its mark is undermined by the fact that it has not been substantially exclusive
in a discrete and relatively small geographical market, the DMV. We are unable to
credit Respondent’s testimony and evidence of approximately $100 million dollars in
advertising expenditures over a 37 year-time period and promotion of $1-2 million
worth of advertising because neither data point is tied directly to Respondent’s
AYOUB CARPET SERVICE mark. Although we do have record evidence linking
Respondent’s gross revenues and advertising expenditures to its Word Mark, it is
only for a single year, 2013. The number of customers points to some recognition of
Respondent’s mark as a source indicator. Respondent’s manner of advertising is
diverse with a mix of traditional and digital marketing tools. Respondent’s testimony
and documentary evidence shows that for over two decades, it has used mailers,
postcards, website advertisements, building and work van signage, telephone
directory ads and customer survey cards. But the documentary evidence to support
this testimony presents a picture of sporadic efforts. Respondent has received only a

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handful of instances of media recognition and accolades for the quality of its Class 37
rug and carpet cleaning services, many of which are dated and sporadic. Taken
together, while the evidence points to some consumer recognition of Respondent’s
AYOUB CARPET SERVICE mark as a source indicator in the DMV market for its
Class 37 services, the probative value of this evidence is outweighed by the lack of
evidence of substantially exclusive use and notable deficiencies in the remaining
evidence highlighted above. And we have virtually no evidence of acquired
distinctiveness under the Converse factors pertaining to Respondent’s Class 35
services.
Respondent has failed to rebut the prima facie case shown by Petitioner. Viewing
the record as a whole, Petitioner has met its ultimate burden of proving, by a
preponderance of evidence, that Respondent’s word mark AYOUB CARPET
SERVICE has not acquired distinctiveness, at the time of prosecution, registration,
or trial. In other words, we find that the relevant public does not associate the
designation AYOUB CARPET SERVICE with Respondent alone, and does not
recognize the designation as a mark identifying only Respondent’s “Retail store
services featuring carpets, rugs and flooring” in Class 35; and “Carpet, rug, furniture
and floor cleaning services” in Class 37.
The petition for cancellation is granted on the ground that Respondent’s
mark AYOUB CARPET SERVICE is primarily merely a surname lacking
acquired distinctiveness under Sections 2(e)(4) and 2(f) of the Trademark
Act. Registration No. 5599838 will be cancelled in due course.

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VIII. Petitioner’s Section 2(d) Claim Against Registration No. 5653245-
Respondent’s Composite Mark
We turn now to Petitioner’s Section 2(d) claims asserted against Respondent’s
Word and Composite Marks.
In view of our determination granting the Petition to Cancel Respondent’s word
mark AYOUB CARPET SERVICE under Trademark Act Sections 2(e)(4) and 2(f),
Petitioner’s Section 2(d) claim is moot as to the Word Mark because there is no longer
a registration against which to assess likelihood of confusion. Cf. Wonderbread 5 v.
Gilles, No. 92052150, 2015 TTAB LEXIS 261, at *40 (“Insofar as we have determined
that Petitioner has prevailed on its ownership claim, Petitioner’s Section 2(d) and
fraud claims are dismissed as moot.”).
We therefore limit our analysis of Petitioner’s Section 2(d) claim to Respondent’s
composite mark for “Retail store services featuring
carpets, rugs and flooring” in Class 35; and “Carpet, rug, furniture and floor cleaning
services” in Class 37 in Registration No. 5653245.
To prevail on a likelihood of confusion claim brought under Section 2(d), a plaintiff
must prove by a preponderance of the evidence that it owns
a mark registered in the Patent and Trademark Office, or a mark or trade
name previously used in the United States … and not abandoned as to
be likely, when used on or in connection with the goods of the [registrant],
to cause confusion, or to cause mistake, or to deceive.

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Trademark Act Section 2(d), 15 U.S.C. § 1052(d). See, e.g., Cunningham, 222 F.3d at
946. We consider each element of this claim, priority and likelihood of confusion,
below.
A. Priority
In a cancellation proceeding in which both parties own registrations, as is the case
here, the petitioner must prove priority. Brewski Beer Co. v. Brewski Bros., Inc., No.
92021735, 1998 TTAB LEXIS 116, at *10; see also Sabhnani v. Mirage Brands, LLC,
No. 92068086, 2021 TTAB LEXIS 464, at *19. Under Section 7(c) of the Trademark
Act, 15 U.S.C. § 1057(c), either party may rely upon the filing date of the application
underlying its registration for purposes of priority as its constructive use date.
Brewski, 1998 TTAB LEXIS 116, at *10. A party may, of course, rely on an earlier
priority date based on common law rights; however, any such earlier priority date
must be established by competent evidence. See JNF LLC v. Harwood Int’l Inc., No.
9207063, 2022 TTAB LEXIS 328, at *12.
The constructive use date, i.e., the filing date, of the underlying application that
matured into the registration of Petitioner’s standard character mark AYOUB N&H
is January 12, 2013. Petitioner argues in its brief that the affidavit of its co-owner,
Nabel Ayoub, and corroborating exhibits establish that Petitioner began using its
pleaded mark much earlier, beginning in 1991.158 But Nabel Ayoub’s affidavit and
supporting documentation159 reveal use of a slightly different mark, AYOUB N/H,
158 Petitioner’s Brief, p. 13-14, 34; 79 TTABVUE 21-22, 42.
159 Nabel F. Ayoub Affidavit and Exhibits, 66 TTABVUE 779-828.

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starting in 1991.160 Although Nabel Ayoub averred that as of 1991 “everyone
answering the phones and speaking on the phone and in the field in person was
instructed to refer to our business as ‘Ayoub N&H,’”161 it was not until 1996 that
Petitioner changed the signage on its company trucks and customer work orders to
“Ayoub N&H.”162 Indeed, Kris Ayoub, Nabel’s son and Petitioner’s “co-CEO”
confirmed that “the earliest work order that [Petitioner] has for use of the Ayoub N
ampersand trademark” is August 29, 1996.163
For its part, Respondent’s constructive use date is March 8, 2018. Respondent
admitted during discovery that its first use in commerce of its registered Composite
Mark did not occur until after Petitioner’s constructive use date of January 13,
2013.164 Thus, whether we rely on Petitioner’s constructive use date or proven actual
use date of August 29, 1996, Respondent’s admitted date of first use is later than
both.
Respondent attempts to overcome its admission by arguing that through the
doctrine of tacking, Respondent has priority.165 Tacking allows a party to “clothe a
160 Nabel F. Ayoub Affidavit ¶ 4 (“Ayoub, Inc. began using the name Ayoub N/H in 1991 to
identify our company to the purchasing public.”); Exhibit A (a photograph of a business card
from 1991 displaying the mark Ayoub N/H); Exhibit B (two photographs from 1994 displaying
the mark Ayoub N/H on company vans); 66 TTABVUE 779, 783-786.
161 Nabel F. Ayoub Affidavit ¶ 5; 66 TTABVUE 779.
162 Nabel F. Ayoub Affidavit ¶ ¶ 8 and 9 and Exhibit C (copy of a work order dated August
29, 1996 showing use of the mark “Ayoub N & H”); 66 TTABVUE 780.
163 74 TTABVUE 46-47.
164 Response to Request for Admission No. 10 (“Admit. However, earlier versions of similar
marks go back to 2010.”); 66 TTABVUE 202.
165 Respondent’s Brief, p. 21; 81 TTABVUE 29. Tacking is available as an affirmative defense
against a Section 2(d) claim to prove priority, but it must be specifically pleaded. See H.D.

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new mark with the priority position of an older mark.” Bertini v. Apple Inc., 63 F.4th
1373, 1377 (Fed. Cir. 2023) (quoting Hana Fin., Inc. v. Hana Bank, 574 U.S. 418, 419-
420 (2015)). “The party seeking to tack bears the burden to show the old mark and
the new mark ‘create the same, continuing commercial impression’ so that consumers
‘consider both as the same mark.’” Bertini, 63 F.4th at 1377 (quoting in part Hana,
574 U.S. at 422 and Van DyneCrotty, Inc. v. Wear-Guard Corp., 926 F.2d 1156, 1159
(Fed. Cir. 1991) (abrogated on other grounds by Hana, supra.) In the context of
tacking, “commercial impression” refers to “the meaning or idea it conveys or the
mental reaction it evokes,” including the information it conveys with respect to
source.” Bertini, 63 F.4th at 1377. “In other words, the marks must be ‘legal
equivalents.’” Id. Merely because two marks would be deemed confusingly similar
under Section 2(d) does not render them legal equivalents. Id.; see also Wet Seal, Inc.
v. FD Mgmt., No. 91157022, 2007 TTAB LEXIS 21, at *20 (internal citations omitted).
Respondent advances a novel theory of tacking by not relying on the use of a single
earlier mark to tack on to its composite mark for priority purposes
but rather the combination of two different prior registered word marks: (1) AYOUB
Lee Co. v. Maidenform Inc., No. 91168309, 2008 TTAB LEXIS 21, at *11-13 (attempt to tack
use of mark alleged to be legally equivalent to mark at issue is denied because adverse party
not put on notice in pleading that owner of mark would attempt to prove priority through
tacking). Respondent did not plead tacking as an affirmative defense in the operative answer,
but instead raises this issue in its trial brief. Because Petitioner did not object in its reply
brief, and in fact addressed the merits of Respondent’s arguments (see Petitioner’s Reply
Brief, p. 18; 83 TTABVUE 23), we deem Respondent’s Answer amended and the issue tried
by express consent under Fed. R. Civ. P. 15(b)(2) (“When an issue not raised by the pleadings
is tried by the parties’ express … consent, it must be treated in all respects as if raised in the
pleadings).

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CARPET SERVICE, which was the subject of now cancelled Registration No 5599838;
and (2) ACS, which was the subject of now cancelled Registration No. 5599856.
Respondent postulates that because its Composite Mark “embodies [the] two earlier
registered word marks[,] ACS and . . . AYOUB CARPET SERVICE” that “[a]ll three
marks have the same commercial impression for the same services.”166 Respondent
contends that “when consumers see the [Composite] [M]ark containing both AYOUB
CARPET SERVICE and ACS, they are likely to connect it with a single source of
these services, [Respondent].”167 As evidentiary support, Respondent points to
customer, employee, and competitor declarations stating that they identify
Respondent both as ACS and Ayoub Carpet Service;168 advertisements displaying
AYOUB CARPET SERVICE with the “A” “C” and “S” in bold red font;169 and
Petitioner’s purported admission that ACS and AYOUB CARPET SERVICE are
equivalents.170 Based on this evidence, Respondent argues that consumers
encountering its newer composite mark containing as elements both
previously used marks ACS and AYOUB CARPET SERVICE would connect it to
Respondent as the single source of both classes of services.
166 Respondent’s Brief, p. 21; 81 TTABVUE 29.
167 Respondent’s Brief, p. 22; 81 TTABVUE 30.
168 78 TTABVUE 17-18, 22-323 (Exs. A-Z), 207-217 (Exs. MM-NN), 225-266 (Exs. OO-SS).
169 Decl. of owner of Donnelly Printing ¶ 4; 77 TTABVUE 46 and 51 (doorhanger).
170 Deposition of Kris Ayoub (Sept. 6, 2024); 74 TTABVUE 29 (“Q. What does ACS stand for?
A. It stands for Ayoub Carpet Service. Q. And how long have you known that? A. Since early
2000s, I would say.”).

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The standard for tacking is strict and tacking “should be condoned only in ‘rare
instances.’” Van DyneCrotty, 926 F.2d at 1160. Tacking does not provide for the
merger of two distinct prior marks into a later single mark. The purpose of tacking is
to allow trademark users “to make certain modifications to their marks over time
without losing priority.” Hana, 574 U.S. at 420. Allowing Respondent to rely on the
merger of two different earlier marks to tack on to a subsequent single composite
mark would frustrate this principle.
Casting that problem aside, if the prior marks ACS and AYOUB CARPET
SERVICE were considered on an individual basis, neither mark is the legal
equivalent of . Respondent’s Composite Mark contains not only a
design element in the form of a circular carrier but also the year 1957 and the
laudatory phrase THE ORIGINAL. In view of these differences in appearance,
meaning and sound, consumers would not view either ACS or AYOUB CARPET
SERVICE as creating the same continuing commercial impression as
. See, e.g., George & Co. v. Imagination Ent. Ltd., 575 F.3d 383, 402 (4th Cir. 2009)
(determining the mark LEFT CENTER RIGHT and the abbreviated mark LCR are
not legal equivalents for tacking purposes); Wet Seal, 2007 TTAB LEXIS 21, at *20
(“ELIZABETH ARDEN and ARDENBEAUTY are not legally equivalent marks. The
two marks, while perhaps confusingly similar, are certainly not indistinguishable.
Most significantly, ARDENBEAUTY does not include ELIZABETH and it adds the
word BEAUTY.”).

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The doctrine of tacking has a “limited reach.” Bertini, 63 F.4th at 1378.
Accordingly, Respondent cannot rely on tacking under either of the above scenarios
to establish an earlier priority date. Petitioner has therefore proven priority by virtue
of Respondent’s admission, thereby satisfying the first element of its Section 2(d)
claim.
B. Likelihood of Confusion
Having established priority, we are left with the issue of likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357 (CCPA 1973) (“DuPont”) sets
forth thirteen factors relevant to a determination of likelihood of confusion, otherwise
referred to as the DuPont factors. 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. DuPont, 476 F.2d at 1361, cited in B&B Hardware, Inc. v. Hargis Indus.,
Inc., 575 U.S. 138, 144 (2015); 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. In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019); see also Apex
Bank v. CC Serve Corp., 156 F.4th 1230, 1234 (Fed. Cir. 2025).
Varying weights may be assigned to each DuPont factor depending on the
evidence presented. See In re Charger Ventures LLC, 64 F.4th 1375, 1381 (Fed. Cir.
2023); Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1354 (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, however, two key considerations are the similarities between
the marks and the similarities between the services. See Sunkist Growers, Inc. v.

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Intrastate Distribs., Inc., 144 F.4th 1376, 1379 (Fed. Cir. 2025); In re i.am.symbolic,
LLC, 866 F.3d 1315, 1322 (Fed. Cir. 2017); Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 1103 (CCPA 1976) (“The fundamental inquiry mandated
by § 2(d) goes to the cumulative effect of differences in the essential characteristics of
the goods and differences in the marks.”). These factors as well as others are
discussed below.
1. Strength or Weakness of Petitioner’s AYOUB N&H Registered
Mark
“Two of the DuPont factors (the fifth and sixth) consider [the] strength” of a
plaintiff’s mark. Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023). “The
fifth DuPont factor, ‘[t]he fame of the prior mark (sales, advertising, length of use),’
DuPont, 476 F.2d at 1361, is a measure of the mark’s strength in the marketplace.”
Id. (citing Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323,
1324-25 (Fed. Cir. 2017)). This factor allows a plaintiff to expand the scope of
protection its mark should be afforded based on evidence of marketplace strength. By
contrast, “the sixth DuPont factor, ‘[t]he number and nature of similar marks in use
on similar [services],’ DuPont, 476 F.2d at 1361, [ ] is a measure of the extent to which
other marks weaken the assessed mark.” Spireon, 71 F.4th at 1362 (citing Palm Bay
Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369 (Fed
Cir. 2005)). This DuPont factor allows a defendant to contract the scope of protection
of a plaintiff’s mark by adducing evidence of conceptual and commercial weakness.
Petitioner does not argue that its mark AYOUB N&H is either famous or falls on
the higher end of the fame/commercial strength spectrum. Instead, it concedes that

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as a “regional, family-run operation[ ],” its mark lacks fame.171 The fifth DuPont
factor is neutral.
We now address the number and nature of similar marks in use on similar services
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, 71 F.4th at
1362, 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). “[T]he strength of a mark is not a
binary factor” and “varies along a spectrum from very strong to very weak.” Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340 (Fed. Cir. 2015) (internal
citations omitted). “The weaker [the petitioner’s] mark, the closer a [respondent’s]
mark can come without causing a likelihood of confusion and thereby invading what
amounts to its comparatively narrower range of protection.” Id. at 1338 (internal
citations omitted).
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)).
171 Petitioner’s Brief, p. 32; 79 TTABVUE 40.

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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.’” Palm Bay, 396 F.3d at 1373-74.
First we examine the conceptual strength or weakness of Petitioner’s mark
AYOUB N&H. The mark is registered on the Principal Register without a claim of
acquired distinctiveness under Section 2(f), 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., Inc. v. Pro Era, LLC, No. 91216455, 2020 TTAB LEXIS 199,
at *29. That said, it is comprised in part of the surname “Ayoub.” Since we are
comparing non-identical marks (AYOUB N&H with ), we must consider
the impact of the shared segment “Ayoub.” See Spireon, 71 F.4th at 1364 (where the
registrations are for non-identical marks, Board must consider third-party marks
comprised of the shared element). We can assume that surnames (i.e., terms that are

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primarily merely surnames) fall in the same subset as merely descriptive terms
because they cannot be registered on the Principal Register absent a showing of
acquired distinctiveness. See Trademark Act Sections 2(e) and (f), 15 U.S.C.
§§ 1052(e) and (f). As noted earlier in Section II., both parties stipulated that “Ayoub”
is a surname.172 As a result, the “Ayoub” segment of Petitioner’s mark AYOUB N&H
falls on the low end of the conceptual strength spectrum.
Turning to commercial weakness under the sixth factor, Petitioner argues that
because “there are multiple other family-owned businesses in addition to the Parties
in the DMV [that] use a mark that predominately displays ‘Ayoub’” and because “all
parties have used these marks for long periods of time over generations within the
same geographic region,” this weighs in favor of finding a likelihood of confusion as
to both marks.173 Respondent counters just the opposite, that such evidence weighs
against a likelihood of confusion because it shows that the Petitioner’s mark AYOUB
N&H is weak and entitled to less protection.174 We find that the evidence of third-
party, family-owned marketplace uses of marks comprised of the surname “Ayoub” in
connection with the same carpet services weakens the commercial strength of
Petitioner’s mark AYOUB N&H. See Palm Bay, 396 F.3d at 1373-74 (“Evidence of
third-party use of similar marks on similar goods is relevant to show that a mark is
relatively weak and entitled to only a narrow scope of protection.”); see also Jack
172 This stipulation of course is consistent with what transpired in the Prior Opposition.
173 Petitioner’s Brief, p. 32; 79 TTABVUE 40.
174 Respondent’s Brief, p. 28; 81 TTABVUE 36.

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Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports,
S.L.U., 797 F.3d 1363, 1373 (Fed. Cir. 2015). Juice Generation, 794 F.3d at 1338-39
(internal citations omitted). The record shows that in addition to Respondent, three
unrelated carpet/rug businesses operating in the DMV market currently use marks
incorporating the surname Ayoub: George Ayoub Carpet & Rug Care,175 Hanna
Ayoub Rug Cleaning,176 and Ray Ayoub Oriental Rugs.177 Typically, from a
quantitative perspective, this number of third-party marketplace uses would be
insufficient to tip the scale downward. See, e.g., Juice Generation, 794 F.3d at 1337
n.1, 1341-42 (finding evidence of a considerable number of third-party uses of the
component “peace and love” in connection with restaurant services or food products
weakened the opposer’s mark). But this evidence carries a higher degree of weight
here because the shared element is a surname and identical or highly related services
are provided under marks containing that surname within the same, narrow
geographic market. As discussed above, the record shows that the uses by George
175 Decl. of Jimmy Ayoub, President and Owner of George Ayoub Carpet & Rug Care (Sept.
6, 2024) ¶ 2; 66 TTABVUE 834 (“My business has been in operation in the Washington, D.C.
metropolitan areas since 1987) and ¶ 5; 66 TTABVUE 835 (discussing use of the mark George
Ayoub Carpet & Rug Care).
176 Decl. of Joe Hadeed, owner of Hadeed Carpet Cleaning Business ¶ 3; 66 TTABVUE 538,
(Sept. 6, 2024) (“My business has been in operation in the Washington, D.C. metropolitan
areas since 1955. I purchased the Hanna Ayoub Rug Cleaning business in 2018 and I still
use the Hanna Ayoub Rug Cleaning Trademark.”).
177 Discovery Deposition of Daniel Ayoub (Sept. 19, 2024), 66 TTABVUE 21-222 (“Q. A few
minutes ago you testified that there are five, six or seven different companies using the Ayoub
name in connection with rug, floor-related services. Can you identify those for me please? A.
So you have us, Ayoub Carpet Service; you’ve got Ayoub N & H; you’ve got George Ayoub
Carpet Care. You’ve got Hanna Ayoub Rug Cleaning. You’ve got Ray Ayoub Oriental Rugs.
Those are the ones that come to mind.”).

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Ayoub Carpet & Rug Care178 and Hanna Ayoub Rug Cleaning179 is extensive in the
DMV market with use of their marks since 1987 and 1955 respectively. In other
words, three marketplace uses of the same surname in the same, narrow geographic
area over a long period of time has a more significant impact in diminishing the
strength of Petitioner’s mark than might appear based solely on the relatively small
number of uses. “Evidence that consumers have been educated to distinguish between
marks in this way tends to indicate a lack of commercial strength.” Apex, 156 F.4th
at 1235 (citing Jack Wolfskin, 797 F.3d at 1374).
In sum, we find that the scope of protection of Petitioner’s registered mark
AYOUB N&H has been reduced by the inherent conceptual weakness of the surname
“Ayoub.” “When … a portion of a mark, is inherently weak, it is entitled to a narrow
scope of protection.” Bass Pro Trademarks, LLC v. Sportsman’s Warehouse, Inc., No.
92045000, 2008 TTAB LEXIS 16, at *38. The AYOUB segment of Petitioner’s mark
has also been commercially weakened by third-party uses of marks comprised in part
of “Ayoub” in the DMV carpet sales and cleaning market. The sixth DuPont factor
therefore weighs against a likelihood of confusion.
2. The Similarity or Dissimilarity of the Marks
Having gauged the conceptual and commercial weakness of Petitioner’s mark, we
now turn to the first DuPont factor which involves an analysis of “the similarity or
178 Decl. of Jimmy Ayoub, President and owner of George Ayoub Carpet & Rug Care (Sept. 6,
2024) ¶ 2; 66 TTABVUE 834 and ¶ 5; 66 TTABVUE 835.
179 Decl. of Joe Hadeed, owner of Hadeed Carpet Cleaning Business (Sept. 6, 2024) ¶ 3; 66
TTABVUE 538.

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dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression.” Palm Bay, 396 F.3d at 1371 (quoting DuPont, 476 F.2d
at 1361). “[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 v. Diamond Hong,
Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018) (quoting Coach Servs., 668 F.3d at 1368
(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
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)). Nonetheless, 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 a consideration of the marks in their entireties. Nat’l

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Data Corp., 753 F.2d at 1058.
With these principles in mind, we now compare Petitioner’s standard character
Word Mark AYOUB N&H with Respondent’s Composite Mark .
Petitioner argues that the marks are similar in sound, appearance, connotation
and commercial impression because the dominant element in each mark is the
surname “Ayoub.” Citing the general principle that the first word in a mark is often
its “dominant portion and are likely to make the greatest impression on consumers,”
Petitioner contends that AYOUB is the dominant element in its standard character
mark AYOUB N&H. As to Respondent’s Composite Mark, it maintains that “Ayoub”
is “the highlight of the logo and a consumer viewing the mark would attach greater
significance to the words ‘Ayoub’ than to the overall design of the mark.”180 Petitioner
discounts the remaining wording in Respondent’s mark as “either much smaller than
‘Ayoub’ or is subject to a disclaimer requirement in addition to being much smaller
than the word ‘Ayoub.’”181
Petitioner’s arguments hinge on the assertion that the surname AYOUB is the
dominant part of both Petitioner’s standard character mark and Respondent’s
Composite Mark. As explained above in Section VII.B.1, surnames, by their very
nature, are not inherently distinctive. We disagree with Petitioner that the
conceptually and commercially weak surname “Ayoub” dominates each mark. See
Apex Bank, 156 F.4th at 1236 (sixth DuPont factor impacts the analysis of the first
180 Petitioner’s Brief, p. 27; 79 TTABVUE 35.
181 Petitioner’s Brief, p. 27; 79 TTABVUE 35.

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factor to the extent that “commercial impression informs the analysis under the
first DuPont factor”). We acknowledge the general principle that consumers are
generally more inclined to focus on the first word or term in a mark. See Palm Bay
Imps., 396 F.3d at 1372-73. This tenet, however, is merely a guide and its application
depends on the nature of that first term. Where the shared initial term is highly
suggestive or not inherently distinctive, marks may be distinguishable based on
additional wording or elements. See, e.g., Brewski, 1998 TTAB LEXIS 116, at *21
(finding the marks BREWSKI BROTHERS and BREWSKY’S dissimilar because
“BREWSKY’S is, at a minimum, very highly suggestive and thus is entitled to a very
narrow scope of protection” and “the presence of the word BROTHERS in
respondent’s mark is a distinguishing element.”). Both marks do have some
similarities in sound, appearance, connotation and commercial impression because of
this shared surname “Ayoub” which of course sounds and looks identical in both
marks and conveys family lineage. However, the similarities stop there. When we
compare the marks as a whole, overall, we find them to be dissimilar in sound,
appearance, connotation, and commercial impression.
Visually and aurally, the marks differ. Petitioner’s mark AYOUB N&H, is likely
to be pronounced as “i-ube en and h.” By contrast, Respondent’s Composite Mark
resembles an emblem with the corporate initialism ACS as its focal point. Prospective
consumers will be naturally drawn to this prominently depicted initialism in the
circular carrier design and begin articulating the mark as the letter string “A-C-S.”
Informational wording forms part of this emblem-like logo as well, further

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distinguishing the marks in sound and appearance.
The marks also differ in connotation and commercial impression. Petitioner’s
mark AYOUB N&H will be perceived as a family‑owned business. Consumers are apt
to view the letters “N’ and “H,” joined by an ampersand, as the initials of the two
founders’ given names. The record supports this finding because it shows that
Petitioner is a family‑owned business established by husband and wife Nabel and
Hala Ayoub.182 The presentation of the mark in this manner suggests partnership
and a collaborative enterprise within the same family owned business.
Respondent’s Composite Mark will also be perceived as a family owned business,
but it incorporates other elements that differentiate the marks in meaning and
commercial impression. Respondent’s Composite Mark features the prominently
displayed corporate initialism ACS. The record shows that consumers recognize this
initialism as a shorthand for “Ayoub Carpet Service.”183 Respondent’s Composite
Mark also integrates heritage cues signaling to consumers reputation and longevity.
The phrase “The Original” conveys that Respondent was the first entrant in the
market of multiple Ayoub-formative marks. The year “1952” communicates
Respondent’s year of establishment and longstanding presence. The placement of
both of these terms in close proximity with the surname “Ayoub” creates an aura of
provenance that differentiates Respondent’s mark from Petitioner’s standard
character mark AYOUB N&H. In the context of comparing marks comprised of
182 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 9; 65 TTABVUE 4.
183 Second Decl. of Daniel Ayoub in Support of Respondent’s Partial Motion for Summary
Judgment (Jan. 22, 2024) ¶¶ 13 and 15; 78 TTABVUE 12.

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surnames, such heritage cues meaningfully distinguish Respondent’s Composite
Mark from Petitioner’s mark since wording of this type is notably absent from
Petitioner’s mark. While typically merely descriptive or generic wording carries less
weight, when consumers are confronted with marks comprised of the same surname,
they are more inclined to look to additional information such as heritage cues to
distinguish each mark. Cf. Coach/Braunsdorf, 2014 TTAB LEXIS 95, at *61 (“the
addition of other matter to a descriptive word like ‘Perks’ may be enough to
distinguish it from another mark.”).
But even if we were to find that AYOUB is the dominant element in Petitioner’s
mark AYOUB N&H because it is the first term, we still would not find the marks
similar overall due to the prominence of ACS in Respondent’s Composite Mark and
the inherent weakness of the shared surname element.
Comparing the marks overall, see Jack Wolfskin, 797 F.3d at 1371, they are
dissimilar in their entireties in terms of appearance, sound, connotation and
commercial impression. The first DuPont factor therefore weighs against a finding of
likelihood of confusion.
3. The Similarity or Dissimilarity of the Services and the Similarity
or Dissimilarity of Established, Likely to Continue Trade
Channels
We direct our attention now to the second DuPont factor, a comparison of the
parties’ services as identified in each respective registration. See Stone Lion Cap.
Partners, LP 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); Octocom Sys., Inc. v.

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Hous. Comput. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990). It is sufficient if
relatedness is established for any identified service within a particular class. Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981).
Petitioner’s services are identified as “retail carpeting and rug stores” in Class 35
and “carpet and rug cleaning” in Class 37; Respondent’s services are “Retail store
services featuring carpets, rugs and flooring” in Class 35; and “Carpet, rug, furniture
and floor cleaning services” in Class 37. Although worded slightly differently, both
registrations include retail store services featuring carpets and rugs in Class 35, as
well as carpet and rug cleaning services in Class 37. As a result, the services are
identical in part for each class. The second DuPont factor therefore weighs in favor of
a likelihood of confusion for both classes of services.
This brings us to the third DuPont factor, the similarity or dissimilarity of
established, likely to continue trade channels and classes of consumers. DuPont, 476
F.2d at 1361. The parties’ registrations are unrestricted in terms of trade channels
and classes of consumers for both Classes 35 and 37. We must therefore presume that
the parties’ identical services travel in the same ordinary trade and distribution
channels and will be marketed to the same potential consumers. See In re Viterra
Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (even though there was no evidence
regarding channels of trade and classes of consumers, the Board was entitled to rely
on this legal presumption in determining likelihood of confusion); In re Yawata Iron
& Steel Co., 403 F.2d 752, 771 (CCPA 1968) (where there are legally identical goods,
the channels of trade and classes of purchasers are considered to be the same).

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Consequently, the third DuPont factor also weighs in favor of a likelihood of confusion
for both classes of services.
4. Purchasing Conditions
The fourth DuPont factor evaluates ‘[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.’” DuPont,
476 F.2d at 1361. A heightened degree of care when making a purchasing decision
may tend to minimize likelihood of confusion. See, e.g., In re N.A.D., Inc., 754 F.2d
996, 999-1000 (Fed. Cir. 1985) (because only sophisticated purchasers exercising
great care would purchase the relevant goods, there would be no likelihood of
confusion merely because of the similarity between the marks NARCO and
NARKOMED). Conversely, impulse purchases of inexpensive services may tend to
have the opposite effect. Palm Bay Imps., 396 F.3d at 1376. In evaluating this factor,
we focus on the services which we found to be identical with overlapping trade
channels and consumers. In this case, that consists of retail store services featuring
carpets and rugs in Class 35, and carpet and rug cleaning services in Class 37.
Neither registration limits the relevant services to any particular type of
consumer, meaning that they encompass both commercial and residential
purchasers.
The record supports a finding that such purchases are often well thought out.
Consumers visit showrooms to compare styles and materials, obtain estimates and
evaluate different rug and carpet cleaning methods. For example, Petitioner’s website
advertises its “10,000 square foot facility in Kensington, Maryland that houses a

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state-of-the-art cleaning facility.”184 It touts carpet and rug cleaning treatments for
pet odors and stains as well as insect infestations.185 The website displays the IICRC
certification and describes in detail its “10 Step Rug Cleaning Process.”186 Petitioner’s
showroom “displays hundreds of different styles of wall-to-wall carpet” and features
carpets and rugs made from materials ranging from “natural fiber carpets such as
wool and sisal to synthetic options such as Nylon, Polyester and SmartStrand.”
Petitioner’s website invites potential customers to schedule appointments, browse
styles, obtain price quotes and explore financing options before making any
purchases.187
Respondent likewise touts its IICRC certifications. It also advertises on its website
that it is a certified member of The Oriental Rug Retailers of America and the
Restoration Industry Association.188 The record includes emails from actual
consumers requesting price estimates for rug cleaning from Respondent.189
This evidence supports a finding that retail store services featuring carpets and
rugs in Class 35 and carpet and rug cleaning services in Class 37 “may involve
multiple steps.” In re Jimenez, No. 97551823, 2025 TTAB LEXIS 441, at *14 (Board
184 66 TTABVUE 30 Printout from Petitioner’s website https://ayoubnh.com/about/us
accessed on June 9, 2002.
185 66 TTABVUE 37 Printout from Petitioner’s website
https://ayoubnh.com/cleaning/oriental-area-rug-cleaning accessed on June 9, 2002.
186 66 TTABVUE 50 and 52.
187 66 TTABVUE 44 and 50.
188 Decl. of Daniel Ayoub in Support of Respondent’s Motion for Summary Judgment ¶ 7; 75
TTABVUE 8.
189 See, e.g., customer email to Respondent dated February 11, 2017; 65 TTABVUE 53.

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found purchasers of roofing services likely to exercise “an elevated level of care based
on evidence that applicant’s website invites consumers to schedule a consultation and
advertises that applicant offers financing options). As a result, even the least
sophisticated consumer is likely to exercise at least an above average degree of care.
See Stone Lion, 746 F.3d at 1325 (Board properly considered all potential investors
for recited services, which included sophisticated investors, but that Board precedent
requires basing finding “on the least sophisticated potential purchasers”). The fourth
DuPont factor weighs against a likelihood of confusion.
5. Actual Confusion and Contemporaneous Use
We now address the seventh DuPont factor, the nature and extent of any actual
confusion as well as the related eighth DuPont factor, the extent of the opportunity
for actual confusion as argued by Petitioner. See DuPont, 476 F.2d at 1361. These
DuPont 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., No. 86709944, 2020
TTAB LEXIS 17, at *19; see also New Era, 2020 TTAB LEXIS 199, at *29. If proven,
evidence of actual confusion is entitled to great weight. Majestic Distilling, 315 F.3d
at 1317 (“A showing of actual confusion would of course be highly probative, if not
conclusive, of a high likelihood of confusion.”). But instances of actual confusion carry
less weight when the confusion is based on a shared non-distinctive element such as
a surname. This is because “[in] analyzing [ ] purported instances of actual confusion,
[ ] where petitioner has adopted a weak mark, ‘his competitors may come closer to his
mark than would be the case with a strong mark without violating his rights.’”

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Couch/Braunsdorf Affinity, 2014 TTAB LEXIS 95, at *65 (internal citation omitted).
Cf. KP Permanent v. Lasting Impression, 543 U.S. 111 (2004) (“If any confusion
results, that is a risk the plaintiff accepted when it decided to identify its product
with a mark that uses a well-known descriptive phrase.”).
The record is replete with evidence of the actual market conditions under which
both parties conduct their respective carpet businesses. See Section V. A. and V. B.
Both parties have been providing under their respective marks the same retail carpet
and cleaning services in the DMV market for a number years targeting the same
customers. This means that there has been ample opportunity for actual consumer
confusion to occur between Petitioner’s mark AYOUB N&H and Respondent’s
composite mark . The question is whether, and to what extent, any actual
confusion amongst consumers in the DMV market has taken place between these
particular marks.
Petitioner maintains that there is a “substantial amount”190 of evidence of actual
confusion.191 The record shows otherwise; many such examples are inquiries
regarding affiliation. The first shortcoming with Petitioner’s evidence is that it is
confined to purported instances of consumer confusion surrounding only one class of
services at issue here, carpet and rug cleaning services in Class 37. None of the
190 Petitioner’s Brief, p. 33; 79 TTABVUE 41.
191 Kris Ayoub’s September 26, 2024 discovery deposition testimony that “sometime before
2016, 2015” he had “taken calls” from unidentified members of the public where there was
“probably confusion” is such a vague statement that it carries little weight. 73 TTABVUE 31.

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evidence pertains to actual confusion of the source of Petitioner’s and Respondent’s
retail store services featuring carpets and rugs in Class 35.
Additionally, Petitioner mistakenly conflates consumer confusion of Respondent’s
word mark AYOUB CARPET SERVICE, with Respondent’s composite mark
. We cannot give credit to instances of actual confusion based on the
shared surname element because none are linked specifically to Respondent’s
Composite Mark which includes other key elements such as ACS.192
● Petitioner points to statements Respondent’s owner Dan Ayoub made over ten
years ago on September 10, 2014 at a discovery deposition taken in connection with
the parties’ Prior Opposition.193 Aside from the fact that such testimony is stale, it
could not possibly say anything about actual consumer confusion involving
Respondent’s composite mark which had yet to be used and, let alone
192 Some of the evidence discussed herein consists of email chains and recorded telephone
calls. It is unclear whether the parties’ Joint Trial Stipulation encompasses misdirected
emails and telephone call chains as admissible. Putting aside that concern, to the extent if
any, the evidence constitutes hearsay, Respondent failed to object on this basis, meaning that
the objection is waived. And even if Respondent had objected on this basis, statements of
customer confusion fall under the state of mind and present sense exceptions to the hearsay
rule as per Fed. R. Evid. 803(1) and (3). See Sabhnani, 2021 TTABVUE 464, at *16 (“[t]hese
misdirected telephone calls are admissible under the hearsay exceptions set forth under Fed.
R. Evid. 803(1) (present sense impression), as evidence of what [Petitioner] heard and
experienced during the conferences, or under Fed. R. Evid. 803(3) (state of mind), as
statements revealing the declarant’s state of mind. The statements are not offered for the
truth of the statements but rather simply for the fact that they were made.”) (internal
citations omitted).
193 See 66 TTABVUE 334-335 (testifying that, “The key is the Ayoub.” … “Don’t they
[customers] also refer to you as the carpet service and as the carpet and rug, Ayoub Carpet
& Rug, all these names you’ve listed for me? “Quite frankly, many people refer to us as Ayoub,
to be honest with you.”).

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registered as a trademark. See Fed. R. Evid. 402 (“Evidence is relevant if: (a) it has
any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.”).
● Petitioner cites an email exchange that took place on March 1, 2015 from a
customer who mistakenly dropped off her rug for cleaning with the wrong third-party
affiliate.194 Respondent clarified to the customer that “[t]he company that did the
cleaning was relatives of our[s] in Maryland called Ayoub N&H Carpet. . .we have
absolutely NO affiliation with them.” The initial email that began the exchange was
sent by an employee of Respondent who identified himself as with “Ayoub Carpet
Service.” Neither he nor the email referred to or included a display of Respondent’s
Composite Mark. At best, this email thread suggests actual consumer confusion with
Respondent’s Word Mark. Another problem with this email exchange is that it took
place over ten years ago, meaning it does not reflect consumer perception in the
current marketplace.
● Petitioner cites a February 11, 2017 customer web-form inquiry linked to
Respondent’s email asking about a drop-off location for carpet cleaning located in
Kensington, Maryland affiliated with Petitioner, not Respondent.195 Respondent
explained that the Kensington drop-off location is Petitioner’s, not Respondent’s.
194 67 TTABVUE 390-393. Respondent asserted a relevancy objection on the basis that “[t]he
evidence fails to show confusion over the marks as opposed to confusion over the surname
Ayoub.” Respondent’s Brief - Appendix 2; 81 TTABVUE 54. The testimony is admissible; the
Board is capable of determining the appropriate relevance of this testimony. See Fed. R. Evid.
402.
195 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 22; 65 TTABVUE 53-54.

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Neither the customer nor the web-form referenced or included a display of
Respondent’s Composite Mark. An example of a misdirected customer inquiry from
over eight years ago is of little relevance.
● Petitioner cites a January 15, 2021 email exchange between Kris Ayoub,
Petitioner’s “co-CEO” and Daniel Ayoub, Respondent’s owner, discussing a customer
from Mclean, Virginia who mistakenly booked Petitioner and then contacted
Respondent about her mistake.196 Daniel states that he has referred to Petitioner
callers seeking “N&H”; Kris responds that, “I review calls regularly and haven’t come
across any customers trying to reach ACS, which is probably why you haven’t heard
from us,”197 and that “keep in mind no one is going to contact Ayoub N&H looking for
ACS – they would be referring to us as Ayoub or some form of Ayoub with
descriptors.”198 Without the original email or communication from the customer, the
Board has no way of knowing the reason for the customer’s mistaken booking.
● Petitioner points to an October 25, 2022 email chain that begins with a former
customer of Petitioner inquiring about repeat customer discounts for carpet cleaning
services mistakenly forwarding an older email that originated with Petitioner to
Respondent.199 The originating email from Petitioner bears Petitioner’s Ayoub N&H
logo on the signature line. Respondent explained to the consumer that “you’re trying
196 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 24; 65 TTABVUE 6.
197 65 TTABVUE 56-57.
198 65 TTABVUE 57. Respondent’s relevancy objection is overruled because the Board can
assess the appropriate relevance. See Fed. R. Evid. 402. Respondent’s Brief - Appendix 2; 81
TTABVUE 54.
199 67 TTABVUE 378-388. Likewise, we overrule Respondent’s relevancy objection.

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to reach out to Ayoub N&H. We are Ayoub Carpet Service of Chantilly & Falls
Church.”200 In the email message salutation, the consumer addressed Respondent as
“Ayoub Carpet Cleaning Service.” Nowhere do the participants in the email thread
refer to Respondent by its Composite Mark . While this email exchange
suggests consumer confusion between Petitioner’s mark and Respondent’s Word
Mark AYOUB CARPET SERVICE, it fails to show confusion with Respondent’s
composite mark .
● Another example of purported actual confusion Petitioner cites are two
identical Yelp website reviews left by the same customer on December 30, 2022, one
review for “Ayoub N&H” and the other for “Ayoub Carpet Service.”201 Again, while
these reviews suggest actual consumer confusion with Respondent’s Word Mark, it
fails to demonstrate confusion with Respondent’s Composite Mark.
● Petitioner cites a text message exchange between it and one of its customers
dated December 8, 2023. Kris Ayoub testified that according to the exchange, the
customer attempted to apply a coupon from “Ayoub Carpet Service” to Petitioner’s
services.202 Petitioner informed the customer that the coupon was for Ayoub Carpet
Service, and that “[w]e are Ayoub N&H.”203 Again, while these reviews suggest actual
200 67 TTABVUE 379.
201 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 26, 65 TTABVUE 7, 65-66.
202 Kris Ayoub Testimony Decl. (Jan. 8, 202) ¶ 27, 65 TTABVUE 7.
203 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 27, 65 TTABVUE 7.

Cancellation No. 92080469
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consumer confusion with Respondent’s Word Mark, it fails to demonstrate confusion
with Respondent’s Composite Mark.
● On February 7, 2024, a customer wrote on Yelp®: “Well, this is a strange
situation. I recently posted a glowing review for carpet cleaning and repair. . . The
problem is that my excellent service was provided by Ayoub N&H in Kensington, not
Ayoub Carpet Service. Similar names, and totally my mistake for posting on the
wrong page.”204 This misdirected review suggests confusion with Respondent’s Word
Mark, not Respondent’s Composite Mark.
● In a text message exchange dated March 4, 2024, a prospective customer
discussed stopping by what she believed was Petitioner’s Falls Church, Virginia
location.205 Petitioner responded to the customer, “I’m not sure what company you
visited, but we don’t have a Falls Church location. The name of our company is Ayoub
N&H Carpet.” The prospective customer said, “I think there is Ayoub and Ayoub
N&H and I confused the two!”206 No mention of Respondent’s Composite Mark was
made in the exchange.
● Petitioner points to an email exchange between Kris and Daniel Ayoub as
evidence that the online coupon provider Groupon has confused Petitioner’s and
Respondent’s businesses.207 A review of the emails shows that the source of the
204 67 TTABVUE 408. Respondent’s relevance objection is overruled. See Fed. R. Evid. 402.
205 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 28, 65 TTABVUE 7. Again, we overrule
Respondent’s relevancy objection.
206 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 23, 65 TTABVUE 6.
207 67 TTABVUE 372-373. Respondent’s relevancy objection is overruled.

Cancellation No. 92080469
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confusion involved a Groupon offer by Petitioner under the moniker “Ayoub Carpet
Service” with no mention of Respondent’s Composite Mark.
● Petitioner identifies seven calls that took place “during the discovery period for
this cancellation proceeding” where there were instances of confusion between
Petitioner and “other Ayoub companies in the DMV, especially [Respondent].”208
Because the telephone calls are more recent, they carry more probative weight than
some of the older evidence discussed above. That being said, this evidence is flawed
to the extent that we have no specific dates regarding when such telephone
conversations took place. As reset, the discovery period opened on March 30, 2023
and closed six month later.209 The Board therefore assumes that the calls took place
within this time frame, making them relevant. Putting aside these deficiencies, the
Board has listened to the audio file of each call where Petitioner’s customer service
representative discussed with consumers seeking carpet cleaning services
208 Kris Ayoub Testimony Decl. (Jan. 8, 2025) ¶ 22, 65 TTABVUE 6. (Petitioner “has used a
system called ServiceTitan since 2019 that records customer calls. The following seven calls
enclosed herein as Exhibit B are instances of confusion I located during the discovery period
for this proceeding, beginning in 2019, Petitioner started using a system called ServiceTitan
to record customer calls (with customer consent).”).
Petitioner properly filed with the Board the recorded telephone calls in CD-ROM format. See
Wirecard AG v. Striatum Ventures B.V., No. 92069781, 2020 TTAB LEXIS 12, at *6 n.4 (a
party that wishes to submit audio or video files must record the files on an appropriate
medium such as CD-ROM or DVD and physically file it with the Board). Although not
required under Board practice, it would have been helpful for Petitioner to provide a written
transcript of each telephone call.
209 See February 28, 2023 order denying the parties’ motions for summary judgment and
resetting dates in the proceeding. 14 TTABVUE 14.

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misdirected communications and found that none represent an example of actual
customer confusion between the marks AYOUB N&H and .
The remaining evidence in the record consists of the following testimony which we
discussed earlier in the context of determining whether Respondent’s word mark
AYOUB CARPET SERVICE had acquired distinctiveness:
● Two of the parties’ competitors presented testimony on this topic. Joe Hadeed,
the owner of the business that uses the mark “Hanna Ayoub Rug Cleaning” testified
“[o]n a least a weekly basis, [he has] potential customers contacting [his] business
because they have confused Hanna Ayoub Rug Cleaning with one of the following
companies: Ayoub Carpet Service, Ayoub N&H, or George Ayoub Carpet & Rug
Care.”210 Joe Hadeed ascribes the confusion to the fact that “each of these four
companies use ‘Ayoub’ to brand their services.211 Jimmy Ayoub, President and owner
of George Ayoub Carpet & Rug Care LLC, testified that “on at least a weekly basis, I
have potential customers contacting my business because they have confused George
Ayoub Carpet & Rug Care with one of the following companies: Ayoub Carpet Service,
Ayoub N&H, or Hanna Ayoub Rug Cleaning.”212 None of their testimony pertains to
consumer confusion with Respondent’s Composite Mark, making it irrelevant here.
210 Second Decl. of Joe Hadeed, owner of Hadeed Carpet Cleaning Business (Sept. 6, 2024)
¶ 6, 66 TTABVUE 539.
211 Second Decl. of Joe Hadeed, owner of Hadeed Carpet Cleaning Business (Sept. 6, 2024)
¶ 6, 66 TTABVUE 539.
212 Decl. of Jimmy Ayoub, President and Owner of George Ayoub Carpet & Rug Care (Sept.
6, 2024) ¶ 5; 66 TTABVUE 835.

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● The record further includes direct testimony from actual consumers as to
confusion surrounding the “Ayoub” surname. Sheridan Swope, a resident of
Arlington, VA testified that she has used “Ayoub Carpet Cleaning Service to clean
rugs for several years dating back to 2016” and that in 2022, she “mistakenly
contacted and engaged George Ayoub Carpet & Rug Care to clean two rugs in [her]
home. … I was confused because both Ayoub Carpet Service and George Ayoub
Carpet & Rug Care use the name Ayoub in their company name and advertising.”213
Raymond McGarvey, a resident of Potomac, MD, who has been a regular customer of
Hanna Ayoub Rug Cleaning for “approximately 50 years,” stated that in July 2023,
he mistakenly contacted Ayoub Carpet Service because he “was confused due to the
existence of several companies in the carpet cleaning business that used the name
Ayoub in their company name and advertising.”214 Their testimony is irrelevant
because it pertains to consumer confusion with Respondent’s Word Mark.
Lastly, we address the testimony characterized as a purported admission of actual
confusion. Daniel Ayoub acknowledged ongoing customer confusion among the
several “Ayoub” businesses in the DMV area and agreed such confusion had existed
for many years.215 His testimony is too vague and general to extrapolate that he was
referring to confusion between AYOUB N&H and .
213 Decl. of Sheridan Swope (Sept. 25, 2024) ¶ 3; 77 TTABVUE 68.
214 Decl. of Raymond McGarvey (Sept. 18, 2024) ¶¶ 2-3; 77 TTABVUE 66.
215 Discovery Deposition of Daniel Ayoub (Sept. 19, 2024), 66 TTABVUE 402-406. Respondent
asserted a relevancy objection to this portion of Daniel Ayoub’s testimony on the basis that
“[t]he evidence fails to show confusion over the marks as opposed to confusion over the
surname Ayoub.” Respondent’s Brief - Appendix 2; 81 TTABVUE 54. The testimony is

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Due to the lack of relevant evidence, we deem the seventh and eighth DuPont
factors neutral for both Classes 35 and 37.
6. The Extent of Potential Confusion
The twelfth DuPont factor assesses “the extent of potential confusion, i.e., whether
de minimis or substantial.” DuPont, 476 F.2d at 1361. It differs from the seventh and
eighth DuPont factors to the extent that it is a prospective inquiry, not retrospective.
Petitioner, relying on the principle that “[a]ctual confusion evidence is highly
probative, if not conclusive, evidence that confusion is likely,” Majestic Distilling, 315
F.3d at 1317, argues that because “there is a substantial amount of confusion between
the Parties’ marks,” the extent of potential confusion is substantial.216 We have
already determined that the record is devoid of any past instances of actual confusion
between Petitioner’s AYOUB N&H mark and Respondent’s Composite Mark. This
absence favors a finding that the potential for confusion in the future is de minimis.
On the other hand, the evidence discussed above shows that both parties have been
providing over a long period of time the same retail store and carpet cleaning services,
in the same regional geographical market (the DMV), to the same consumers. This
evidence points in the direction of substantial potential confusion. Because each of
these considerations cut in opposite ways, we deem the twelfth DuPont factor neutral.
admissible; the Board is capable of determining the appropriate relevance of this testimony.
See Fed. R. Evid. 402.
216 Petitioner’s Brief, p. 32; 79 TTABVUE 40.

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7. Market Interface
The tenth DuPont factor considers the “[m]arket interface between [Respondent]
and the owner of a prior mark [Petitioner.]” DuPont, 476 F.2d at 1361 (listing
examples of relevant market interactions or agreements between parties). This
DuPont factor may include “agreement provisions designed to preclude confusion.”217
Id. Evidence of an executed agreement governing how a party will actually use its
mark in commerce may be relevant.
The parties Settlement Agreement218 arising from litigation in the U.S. District
Court for the District of Maryland, Ayoub, Inc. v. Danco, Inc.,219 is the type of market
interface agreement that falls under this category. As summarized above, Petitioner
sought a declaratory judgment from the District Court that “its commercial use of
their surname, Ayoub, does not constitute infringement of the ‘ACS Registration’
[displayed below]220
217 DuPont also lists as an example of market interface consent agreements to register or use
a mark; assignment of a mark, application, registration and goodwill of the related business;
and laches and estoppel attributable to the challenger that would indicate lack of confusion.
See DuPont, 476 F.2d at 1361.
218 See Section V.C.1 supra.
219 Case No. 8:11-cv-00915-JFM; 66 TTABVUE 116-127. See Section V.C.1 supra.
220 This allegation referred to Respondent’s Registration No. 2908667 for the composite mark
AYOUB CARPET SERVICE ACS THE CARPET AND RUG PEOPLE. Complaint ¶ 1, 66
TTABVUE 125.

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or alleged ACS Common Law Marks,” [AYOUB CARPET SERVICE, AYOUB RUG
CLEANING COMPANY, THE CARPET AND RUG PEOPLE and AYOUB].221 We
repeat below the relevant provision in the Settlement Agreement whereby Petitioner
agreed to limit “in all uses of the name AYOUB” to
always use the term “N & H” either immediately preceding, immediately
after, directly on top of, or directly beneath the AYOUB portion of its
name or mark. Further, the term “N & H” shall be in a size which is at
least seventy percent (70%) of the size of the AYOUB portion of the name
or mark if it is used immediately before or immediately after the
AYOUB name. … In addition, if “N & H” is used on top of or beneath the
AYOUB name, any generic or descriptive wording such as “carpet and
rugs” or “carpet cleaning” would only follow “N & H” but not AYOUB.
With respect to the wording “carpet service”, it may only be used in a
manner sufficiently separate and apart from the AYOUB and/or “N &
H” terms such that it would not be considered part of the same mark.222
Nothing in the record suggests that the Settlement Agreement is no longer in force
today.223
221 Complaint ¶¶ 1-2 and 42; 66 TTABVUE 116 and 126.
222 See Settlement Agreement (Sept. 13, 2011) at 66 TTABVUE 138-139.
223 A letter dated January 17, 2017 from Respondent’s former counsel in connection with the
Prior Opposition expressing the view that Respondent had “unilaterally rescinded the
settlement agreement” constitutes hearsay and carries little, if any, weight. 75 TTABVUE
238.

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Respondent contends that the Settlement Agreement was designed to avoid
consumer confusion and is probative of the question of likelihood of confusion
presently before us. Curiously, Petitioner is silent on this issue in its reply brief.
The above provision above makes clear that Petitioner agreed not to use the
surname “Ayoub” without “N & H.”224 It also includes very specific limitations
governing the use of any descriptive or generic wording, such as “carpet and rugs”
and “carpet cleaning,” which can only come after “N & H” and not “Ayoub.”225 And to
further minimize the risk of consumer confusion, Petitioner can only use the
additional wording “carpet service” “in a manner sufficiently separate and apart from
the AYOUB and/or “N & H” terms such that it would not be considered part of the
same mark.”226 In other words, Petitioner is prohibited from using “carpet service” as
a component of its service mark AYOUB N&H.
We find that the Settlement Agreement is probative of the parties’ interface in the
DMV market. Nothing in the language of DuPont precludes consideration of a
contract or settlement agreement imposing restrictions on one party but not the
other. See, e.g., Selva & Sons, Inc. v. Nina Footwear, Inc., 705 F.2d 1316, 1324 (Fed.
Cir. 1983) (the Board may consider in the present cancellation proceeding the
construction of the parties’ settlement agreement pertaining to a prior opposition “if
necessary to decide the [the issue of contractual estoppel] properly before it in [an
224 71 TTABVUE 318-319.
225 See Settlement Agreement (Sept. 13, 2011); 66 TTABVUE 138-139.
226 See Settlement Agreement (Sept. 13, 2011); 66 TTABVUE 138-139.

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opposition] proceeding,” even though “other courts would be the proper tribunals in
which to litigate a cause of action for enforcement or breach of the contract.”). The
Settlement Agreement here reflects the parties’ mutual recognition of consumer
confusion surrounding the use of the shared surname “Ayoub,” and their effort to
avoid such confusion. See DuPont, 476 F.2d at 1361. It is clear, unambiguous, and
illustrates the restrictions both parties negotiated to differentiate Petitioner’s use of
the surname “Ayoub” as a stand-alone trademark from Respondent’s use of its various
Ayoub-formative marks, including its previously registered mark that combined
“Ayoub” along with the initialism “ACS” and “Carpet Service.” The Settlement
Agreement imposes contractual restrictions on Petitioner alongside the statutory bar
to likelihood of confusion under Section 2(d). Although the Settlement Agreement was
reached prior to the registration of Respondent’s Composite Mark , it still
has implications here. Petitioner voluntarily accepted these limitations in exchange
for a release of claims, fully aware that at the time Respondent was using and had
registered a mark possessing many of the same elements as Respondent’s Composite
Mark at issue here, namely, the surname Ayoub, the initialism ACS, and
descriptive/generic wording “Carpet Service.” For Petitioner to now bring a petition
to cancel against Respondent’s Composite Mark incorporating each of these same
elements runs contrary to the core purpose of the negotiated terms of the Settlement
Agreement. See MarCon, Ltd. v. Avon Prods., No. 91069736, 1987 TTAB LEXIS 29,
at *14 (TTAB 1987) (recognizing the “policy favoring settlements “public policy

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encourage[es] the settlement of litigation and of holding parties to the terms of their
agreements.”) (citing Wells Cargo v. Wells Cargo, 606 F.2d 961, 965 (CCPA 1979)).
The restrictions set forth in the Settlement Agreement also undermine
Petitioner’s argument that consumers will focus on “Ayoub” as the dominant portion
of both Petitioner’s and Respondent’s marks. Petitioner’s concession to cease using
the surname “Ayoub” as a stand-alone mark and instead to use only AYOUB N&H
(or with N&H in close proximity), coupled with a complete prohibition on the use of
the phrase “carpet service” as a component of its service mark AYOUB N&H
constitutes an acknowledgment that consumers are apt to look to other wording to
distinguish the parties’ marks.
“[W]hen those most familiar with use in the marketplace and most interested in
precluding confusion enter agreements designed to avoid it, the scales of evidence are
clearly tilted. It is at least difficult to maintain a subjective view that confusion will
occur when those directly concerned say it won’t.” DuPont, 476 F.2d at 1363. The
DuPont Court explained the underlying rationale for this precept in the context of a
consent agreement, but we think this reasoning applies with equal force here:
The weight to be given more detailed agreements of the type
presented here should be substantial. It can be safely taken as
fundamental that reputable businessmen-users of valuable
trademarks have no interest in causing public confusion. The
genius of the free competitive system is the paralleling of the
interest of the entrepreneur and the consuming public so far as
possible. Altruism aside, it is in his pecuniary interest, indeed a
matter of economic survival, that the businessman obtain and
retain customers, the very purpose and function of a trademark,
and that he avoid and preclude confusion. Millions of advertising
dollars are spent daily for that precise purpose. The history of
trademark litigation and the substantial body of law to which it

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relates demonstrate the businessman’s alertness in seeking to
enjoin confusion. In so doing he guards both his pocketbook and
the public interest.
Id. at 1363-64. This factor weighs against a likelihood of confusion.
8. Balancing the DuPont Likelihood of Confusion Factors
The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there has been evidence and argument; “explain the results of that
weighing;” and “the weight [we] assigned to the relevant factors.” Charger Ventures,
64 F.4th at 1384. “No mechanical rule determines likelihood of confusion, and each
case requires weighing of the facts and circumstances of the particular mark.” In re
Mighty Leaf Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010); see also Stratus Networks, 955
F.3d at 998 (“[T]he weight afforded to each factor depends on the circumstances” and
“[a]ny single factor may control a particular case.”). We balance the factors below as
they pertain to both Classes 35 and 37. We have carefully considered all of the
evidence made of record, as well as all of the arguments related thereto.
The services identified in both Classes 35 and 37 are identical in part, meaning
that the second DuPont factor weighs heavily in favor of concluding that confusion is
likely. Because the services are in-part identical and unrestricted as to trade channels
and consumers classes, we can rely on the presumption that those services travel in
the same ordinary trade and distribution channels and will be marketed to the same
potential consumers which also favors a likelihood of confusion. As a result, the third
DuPont factor also weighs heavily in favor of a likelihood of confusion for both classes
of services.

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The first DuPont factor, however, weighs strongly against finding a likelihood of
confusion due to the differences in the marks in appearance, sound, connotation and
commercial impression. This is the case even though the services are in-part
identical. See Bridgestone Ams. Tire Operations, LLC v. Fed. Corp., 673 F.3d 1330,
1337 (Fed. Cir. 2012) (where the goods are identical, the degree of similarity between
the marks necessary to support a determination that confusion is likely declines).
Under the sixth DuPont factor, Petitioner’s mark is both conceptually and
commercially weak. In a discrete geographic market built around the same surname
which by its very nature is conceptually weak, the shared “Ayoub” element receives
a narrower scope of protection. Respondent’s Composite Mark includes differences to
successfully avoid confusion. We therefore weigh the sixth factor heavily against a
likelihood of confusion.
The fourth factor weighs slightly against a likelihood of confusion because the
record shows that for both classes of services the consumer will exercise an above
average degree of care. The tenth factor weighs strongly against a likelihood of
confusion in view of the terms of the parties’ Settlement Agreement and agreed upon
restrictions placed on Petitioner’s use of the surname AYOUB in connection with its
mark AYOUB N&H. The seventh, eighth and twelfth factors are neutral.
We are confronted with the question of how to weigh these factors because the
second and third factors weigh heavily in favor of finding a likelihood of confusion,
while the first, fourth, sixth and tenth factors tip the scale in the other direction to a
strong, moderate, slight, heavy and strong degree, respectively. In this case, we find

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that the first, fourth, sixth, and tenth DuPont factors outweigh the second and third
factors, especially because the shared surname and component of each mark “Ayoub”
is inherently weak. See, e.g., Bass Pro Trademarks, 2008 TTAB LEXIS 16, at *38
(“Balancing all of the relevant likelihood of confusion factors, we find that the marks
are sufficiently dissimilar that no confusion is likely to result even though the marks
are used in connection with identical services. In reaching this conclusion, we have
given great weight to the fact that ‘Sportsman’s Warehouse’ is a descriptive term that
has not acquired distinctiveness.”).
We therefore conclude that confusion is unlikely and deny Petitioner’s
Section 2(d) claim against Respondent’s Composite Mark for both
International Classes 35 and 37. While Petitioner has shown its statutory
entitlement and priority, it has failed to prove likelihood of confusion by a
preponderance of the evidence.
Building a business around a surname shared by other family members “entails a
risk of some uncertainty and the law will not assure absolute protection.” Scott Paper
Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1231 (3d Cir. 1978). Cf. Bass Pro
Trademarks, 2008 TTAB LEXIS 16, at *46 (“when a business adopts a mark, or a
portion of a mark incorporating a descriptive term, it assumes the risk that
competitors may also use that descriptive term.”).
IX. Affirmative Defense of Laches
If confusion is unlikely with Respondent’s mark , it certainly is not
inevitable, rendering moot whether laches constitutes a bar to Petitioner’s likelihood

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of confusion claim against Respondent’s composite mark. Cf. TPI Holdings, Inc. v.
TrailerTrader.com, LLC, No. 92064976, 2018 TTAB LEXIS 121, at *33 (even where
the affirmative defense of laches is meritorious, laches is not a bar to cancellation if
confusion is inevitable).
Decision: Petitioner’s claims asserted against Respondent’s composite mark
set forth in Registration No. 5653245 that the mark is primarily
merely a surname within the meaning of Section 2(e)(4) of the Trademark Act that
has not acquired distinctiveness under Section 2(f), and that the mark is likely to
cause confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with
Petitioner’s previously used and registered standard character mark AYOUB N&H
for “retail carpeting and rug stores” in International Class 35, and “carpet and rug
cleaning” in International Class 35 are denied.
Petitioner’s claim that Respondent’s standard character mark AYOUB CARPET
SERVICE set forth in Registration No. 5599838 is primarily merely a surname within
the meaning of Section 2(e)(4) of the Trademark Act that has not acquired
distinctiveness under Section 2(f) is granted as to both International Classes 35 and
37.
In view of the foregoing, Respondent’s affirmative defense of laches asserted
against Petitioner’s Section 2(d) claims against both registrations is moot.