Phoenix Niesley-Lindgren Watt

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: March 18, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Phoenix Niesley-Lindgren Watt
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Serial No. 98009242
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Phoenix Niesley-Lindgren Watt, pro se.
Javier Jaramillo, Trademark Examining Attorney, Law Office 116,
Elizabeth Jackson, Managing Attorney.
_____
Before Lykos, Pologeorgis and Cohen, Administrative Trademark Judges.
Opinion by Cohen, Administrative Trademark Judge:
Applicant, Phoenix Niesley-Lindgren Watt, seeks registration on the Principal
Register of the composite mark for “nutritional supplements for cats” in
International Class 5; “graphic t-shirts” in International Class 25; and “cat food” in
International Class 31.1
1 Application Serial No. 98009242 was filed on May 23, 2023, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on an allegation of use in commerce of June 25,
2019 and anywhere of June 19, 2019 for International Class 5; an allegation of use in

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The Examining Attorney has partially refused registration under Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when
used in connection with “nutritional supplements for cats” in International Class 5
and “cat food” in International Class 31, is likely to cause confusion, to cause mistake,
or to deceive because it resembles the mark ZEN KITTY (KITTY disclaimed) in
standard characters for “cat litter.”2 The Examining Attorney has also refused
registration requiring Applicant provide an acceptable description of the mark as
required by Trademark Rule 2.37.
When the refusals were made final, Applicant filed its appeal.3 The Examining
Attorney filed his appeal brief and then sought suspension of the appeal and remand
of the Application.4 After remand, the Examining Attorney issued a subsequent Final
commerce and anywhere of July 16, 2017 for International Class 25; and an allegation of use
in commerce and anywhere of June 16, 2022 for International Class 31.
The description of the mark currently reads: The mark consists of a black cat and a white cat
intertwined to form the yin yang symbol. The heads and tails of the cats follow the curves of
the circle, with each cat occupying one half of the circle. The black cat is entirely black except
for its white eyes, ear outline, nose, and claws, while the white cat is entirely white except
for its black eyes, ear outline, nose, claws, and knee outline. Both cats are curled up with
their heads near each other's tails, creating a circular shape. The background of the design
is red. Positioned below the cat design is the compound word “ZENCAT” in white lettering,
positioned on the same red background. The word is approximately the same width as the
cat design, but approximately one-fourth the height of the design. The text is written in a
whimsical serif font with a slight italic slant, and the “Z” of “ZEN” and the “C” of “CAT” are
both capitalized.
Citations to the prosecution file refer to the USPTO’s TRADEMARK STATUS & DOCUMENT
RETRIEVAL (TSDR) system and identify the documents by title, date, and page in the
downloadable .pdf version. Citations to the briefs and other materials in the appeal record
refer to the Board’s TTABVUE online docket system.
2 Registration No. 5734569 issued on the Principal Register on April 23, 2019; Section 8 and
15 filed and accepted.
3 4 TTABVUE.
4 6-7 TTABVUE.

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Office Action,5 the appeal was resumed6 and Applicant filed a supplemental appeal
brief.7 The appeal has now been fully briefed.8 For the reasons explained below, we
affirm the partial Section 2(d) refusal to register as it pertains to International
Classes 5 and 31.
I. Initial Matters
Applicant submitted for the first time with her appeal brief, Exhibit A, which
purports to show the difference in the packaging of the Registrant’s goods and
Applicant’s goods.9 Also, for the first time in her reply brief, Applicant argues that
“[p]urchasers of cat nutritional supplements and cat food are more careful and health-
focused, often consulting a vet – in fact [Applicant] consults with nearly every client
on food and supplements for her cat patients.”10 Applicant also argues that the term
ZEN is conceptually and commercially weak and submitted new evidence of third-
party registrations and websites with her reply brief.11
5 9 TTABVUE.
6 10 TTABVUE.
7 11 TTABVUE.
8 11, 13-14, 16 TTABVUE. Applicant’s first reply brief was overlength and Applicant was
allowed to file, and did, a second reply brief. 14, 16 TTABVUE.
9 4 TTABVUE 11; see 11 TTABVUE 7. The Examining Attorney objected to this evidence in
the June 17, 2025 brief, 6 TTABVUE 3, but the Examining Attorney later asked the Board
to disregard the brief as it was “filed inadvertently due to a technical error.” 7 TTABVUE 2.
We have not given the June 17, 2025 brief or the arguments raised therein any further
consideration.
10 16 TTABVUE 8.
11 16 TTABVUE 5. As to third-party registrations, Applicant included truncated search
results with her first reply brief and a website link to the search results in the second reply
brief which Applicant asserts show trademark registrations that include the term ZEN for
similar goods. However, to make registrations of record, copies of the registrations or the

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Rule 2.142(d) of the Trademark Rules of Practice states that the “record should be
complete prior to the filing of an appeal” and “[e]vidence should not be filed with the
Board after the filing of an appeal.” 37 C.F.R. § 2.142(d). The purpose of a reply brief
is to offer an opportunity to an applicant to respond to arguments made by the
examining attorney, not to allow the applicant to make new arguments that come to
mind after the filing of the main brief and to which the examining attorney may not
respond. Evidence and arguments raised for the first time in a reply brief may be
considered untimely, and therefore waived or forfeited, and we will not usually
consider an argument on appeal which was not made to the examining attorney. See,
e.g., In re Future Ads LLC, No. 85134539, 2012 WL 3263733, at *2 (TTAB 2012) (claim
of acquired distinctiveness raised for first time in reply brief should have been made
in a separate request for remand); Threshold.TV Inc. v. Metronome Enters. Inc., No.
91152662, 2010 WL 3164750, at *3 (TTAB 2010); In re Lar Mor Int’l, Inc., 1983 WL
51840, *5 (TTAB 1983). Applicant should have submitted, but did not, a separately
captioned request for remand with the new evidence attached (i.e., Exhibit A or the
third-party registrations and uses), which, if granted, would allow the Examining
Attorney to consider this new evidence. Trademark Rule 2.142(d)(1) (“In an appeal
from a refusal to register, if the appellant or the examining attorney desires to
introduce additional evidence after an appeal is filed, the appellant or the examining
complete electronic equivalent must be submitted, In re Ruffin Gaming LLC, No. 75899614,
2002 WL 1941140, at *2 n.3 (TTAB 2002), and we do not take judicial notice of third-party
applications or registrations. In re Seminole Tribe of Fla., No. 87890892, 2023 WL 3751113,
at *3 (TTAB 2023). As to third-party websites, Applicant submitted the third-party websites
to her first reply brief which was overlength. The third-party websites were not submitted
with the second reply brief.

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attorney should submit a request to the Board to suspend the appeal and to remand
the application for further examination.”); see, e.g., In re Future Ads LLC, No.
85134539, 2012 WL 3263733, at *2 (TTAB 2012) (claim of acquired distinctiveness
raised for first time in reply brief should have been made in a separate request for
remand); see generally TBMP § 1203.01.
Additionally, the new argument regarding consumer sophistication suffers from
the same deficiencies because it is based on Applicant’s assertions only, there is no
evidentiary support.12 Estée Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir.
1997) (“arguments of counsel cannot take the place of evidence lacking in the record.”)
(citation omitted); see, e.g., Look Cycle Int’l v. Kunshan Qiyue Outdoor Sports Goods
Co., Ltd., No. 92079409, 2024 WL 3739358, at *6 (TTAB 2024) (where prospective
consumers may span a spectrum of sophistication, we base our decision on the least
sophisticated potential purchasers); Aquitaine Wine USA, LLC, No. 86928469, 2018
WL 1620989, at *9 (TTAB 2018) (“Wine purchasers are not necessarily sophisticated
or careful in making their purchasing decisions, and where, as here, the goods are
identified without any limitations as to trade channels, classes of consumers or
conditions of sale, we must presume that Applicant’s and Registrant’s wine
encompasses inexpensive or moderately-priced wine.”).
We give these new arguments and evidence no consideration.
12 Indeed, the third-party websites submitted by the Examining Attorney (discussed later in
this decision) demonstrate that the goods identified in the Application and Cited Registration
are relatively inexpensive and thus, consumers may not use an elevated standard of care in
making purchasing decisions.

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II. Likelihood of Confusion
“The Trademark Act prohibits registration of a mark that so resembles a
registered mark as to be likely, when used on or in connection with the goods or
services of the applicant, to cause confusion [or] mistake, or to deceive.” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023). Our determination of the
likelihood of confusion under Section 2(d) of the Trademark Act is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
1361 (CCPA 1973) (“DuPont”); Charger Ventures, 64 F.4th at 1379. We consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
In any likelihood of confusion analysis, different DuPont factors may play a
dominant role and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1116 (Fed. Cir. 2024) (citing Tiger Lily Ventures Ltd. v. Barclays Cap.
Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be
assigned to each factor depending on the evidence presented, and “any one of the
factors may control a particular case.” Id.; see also Charger Ventures, 64 F.4th at 1381.
Two key considerations are the similarities between the marks and the similarities
between the goods or services, which are addressed under the first two DuPont
factors. In re i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting Herbko
Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)). We discuss
the relevant factors below.

Serial No. 98009242
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A. Similarity of the Marks
“Under the first DuPont factor, we consider ‘the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.’” Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 WL 6072822, at
*13 (TTAB 2021) (quoting Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005)). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Inn at St.
John’s, LLC, No. 87075988, 2018 WL 2734893, at *5 (TTAB 2018), aff’d 777 Fed.
Appx. 516 (Fed. Cir. 2019) (quoting In re Davia, No. 85497617, 2014 WL 2531200, at
*2 (TTAB 2014)). “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, 1295 (CCPA 1974)). On the other hand, “there is nothing improper
in stating that, for rational reasons, more or less weight has been given to a particular
feature of a mark, provided the ultimate conclusion rests on consideration of the
marks in their entireties. Indeed, this type of analysis appears to be unavoidable.” In
re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985).
We agree with the Examining Attorney13 that the marks in the Application and
Cited Registration are quite similar. Both marks lead with the identical and
13 6 TTABVUE 5-7.

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dominant word ZEN14 followed by words that are synonyms – KITTY v. CAT – as the
dictionary definitions submitted by the Examining Attorney reflect.15 See In re Detroit
Athl., 903 F.3d 1297, 1303 (Fed. Cir. 2018) (“The marks’ “lead words are their
dominant portion and are likely to make the greatest impression on consumers.”); In
re Dare Foods Inc., No. 88758625, 2022 WL 970319, at *6 (TTAB 2022). When
considered in the context of the goods identified in the Application and Cited
Registration, the marks create very similar, if not identical, connotation and
commercial impressions, with both suggesting goods that are for cats that are zen or
calm or that create zen or calm cats.16 When used in connection with goods for cats,
the inclusion of KITTY or CAT does not make a significant impact in the minds of
consumers for purposes of distinguishing the marks. See, e.g., Palm Bay Imports, Inc.,
396 F.3d at 1372-73 (“The presence of this strong distinctive term [VEUVE] as the
first word in both parties’ marks renders the marks similar, especially in light of the
largely laudatory (and hence non-source identifying) significance of ROYALE.”).
14 Applicant argues that ZEN is descriptive of her goods and there is nothing arbitrary about
using the term in relation to cats but does not submit any evidence in support. Estée Lauder
Inc., 129 F.3d at 595 (“arguments of counsel cannot take the place of evidence lacking in the
record.”) (citation omitted).
15 See September 4, 2024 Final Office Action at TSDR 9 (The American Heritage Dictionary,
AHDICTIONARY.COM, defines “cat” as “a small domesticated carnivorous mammal (Felis
catus), kept as a pet …”); id. at 37 (Merriam-Webster Dictionary, MERRIAM-WEBSTER.COM
defines “kitty” as “cat … especially: kitten”).
16 See id. at 36 (Merriam-Webster Dictionary, MERRIAM-WEBSTER.COM defines “zen” as “as
state of calm attentiveness in which one’s actions are guided by intuition rather than by
conscious effort”). Applicant argues that her “professional career choices have all been an
effort to bring her cat patients more clam, stress-free, fear-free, cat friendly, Zen-like
moments in their lives ….” 11 TTABVUE 5.

Serial No. 98009242
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While consumers who see the marks side-by-side would notice the difference
between KITTY and CAT, this is not how consumers typically encounter
marks. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir.
2012) (quoting Leading Jewelers Guild, Inc. v. LJOW Holdings, LLC, No. 91160856,
2007 WL 749713, at *5 (TTAB 2007)). Rather, we must consider whether the
differences between the marks are likely to be recalled by purchasers seeing the
marks “at spaced intervals,” i.e. consumers who encounter one of the marks first, and
do not encounter the other until later. Grandpa Pidgeon’s of Mo., Inc. v. Borgsmiller,
477 F.2d 586, 587 (CCPA 1973). In other words, we must keep in mind: (1) “the
fallibility of memory over a period of time;” and (2) that the “average” purchaser
“normally retains a general rather than a specific impression of trademarks.” Sealed
Air Corp. v. Scott Paper Co., 1975 WL 20752, at *3 (TTAB 1975); see In re St. Helena
Hosp., 774 F.3d 747, 751 (Fed. Cir. 2014) (“marks must be considered in light of the
fallibility of memory”) (citation, internal quotation marks, and ellipsis omitted).
While Applicant’s mark contains the design of cats forming a yin-yang symbol,
this design element is subordinate to the wording as it reinforces the understanding
that Applicant’s goods involve cats. Cf. In re Appetito Provisions Co., No. 423405, 1987
WL 124293, at *1 (TTAB 1987) (“design of a sandwich featured in registrant’s mark
[is] less likely to be remembered because [it] merely describe[s] ... the kind of food
served in its restaurants”). Further, the Cited Registration is a standard character
mark which can be depicted in any font, size, or color and could be displayed in a font
similar to the font for the wording “ZenCat” in the Application, further increasing the
similarity of the marks’ appearances. Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a); see

Serial No. 98009242
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also Citigroup Inc. v. Cap. City Bank Grp., Inc., 637 F.3d 1344, 1353 (Fed. Cir. 2011)
(We must “use the DuPont factors to determine the likelihood of confusion between
depictions of standard character marks that vary in font style, size, and color and the
other mark.”); Weider Publ’ns, LLC v. D&D Beauty Care Co., No. 91199352, 2014 WL
343269, at *9 (TTAB 2014) (standard character mark “might be used in any stylized
display or color scheme, including one that is similar or identical to any lettering
style” in the compared mark) (citations omitted).
We acknowledge the specific differences in the marks resulting from their
respective use of the word KITTY versus CAT, and Applicant’s composite mark’s
inclusion of a design element consisting the formation of the yin-yang symbol by two
cats; however, we find that they are, overall, similar in appearance, sound,
connotation and commercial impression. Comparing the marks overall, the first
DuPont factor weighs strongly in favor of finding a likelihood of confusion. See Double
Coin Holdings, Ltd. v. Tru Development, No. 92063808, 2019 WL 4877349, at *9
(TTAB 2019).
B. Similarity of the Goods, Trade Channels and Consumers
We consider the “similarity or dissimilarity and nature of the goods or services as
described in an application or registration” under the second DuPont factor. Stone
Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1320 (Fed. Cir. 2014)
(quoting DuPont, 476 F.2d at 1361). Under the third DuPont factor we consider “the
similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont,
476 F.2d at 1361; Detroit Athl., 903 F.3d at 1306, 1308.

Serial No. 98009242
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The goods need not be identical or even competitive in order to find a likelihood of
confusion. Rather, the question is whether the goods are marketed in a manner that
“could give rise to the mistaken belief that they emanate from the same source” or
are sponsored or endorsed by the same entity. Coach Servs., Inc. v. Triumph Learning
LLC, 668 F.3d 1356, 1369 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, No.
91117739, 2007 WL 1431084, at *6 (TTAB 2007)); Majestic Distilling Co., 315 F.3d at
1316; see also Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267 (Fed.
Cir. 2002) (“Even if the goods and services in question are not identical, the
consuming public may perceive them as related enough to cause confusion about the
source or origin of the goods and services.”). One way to show that consumers perceive
goods as similar (in the trademark sense) is to show that other companies offer both
the goods identified in an application and those identified in a cited registration under
the same mark. See, e.g., Naterra Int’l, 92 F.4th at 1117; Detroit Athl., 903 F.3d at
1306; Hewlett-Packard, 281 F.3d at 1267.
The Examining Attorney argues that the relevant goods are “of a kind that may
emanate from a single source under a single mark.”17 To support this argument, the
Examining Attorney submitted evidence of sixteen third-party websites offering
“nutritional supplements for cats” or “cat food” identified in the Application and “cat
litter” identified in the Cited Registration under the same marks, including these
17 13 TTABVUE 10.

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marks which offer all three: ONLY NATURAL PET;18 PURINA;19 and WERUVA.20
See Hewlett-Packard, 281 F.3d at 1267 (evidence that “a single company sells the
goods and services of both parties, if presented, is relevant to a relatedness analysis”).
The Examining Attorney also submitted fifteen third-party use-based
registrations including these which offer all three goods, nutritional supplements for
cats, cat food, and cat litter:
• WHITE MILL and design for a variety of goods including dietary food
supplements for animals, cat food and cat litter;21
• PETS JOURNEY and design for a variety of goods including vitamins and
dietary supplements for pets, pet food, and litter for animals;22
• HEY LOVE and design for a variety of goods including dietary supplements
for pets, feed supplements for cats, vitamins and dietary food supplements for
animals, animal litter, food for animals, and pet food;23
• TAILJOY for a variety of goods including dietary supplements for cats, cat
food, and animal litter;24
• SUNSEED for a variety of goods including vitamins and dietary supplements
for animals and pets, food and treats for animals, animal litter and litter for
small animals;25 and
• CATURE stylized for a variety of goods including dietary supplements for
animals, cat litter, food for animals, and pet food.26
18 February 15, 2024 Office Action at TSDR 13-26.
19 Id. at TSDR 30-41.
20 September 4, 2024 Final Office Action at TSDR 96-112.
21 Registration No. 6190937, September 4, 2024 Final Office Action at TSDR 156-57.
22 Registration No. 7414929, id. at 164-65.
23 Registration No. 5515307, id. at 166-67.
24 Registration No. 7148735, id. at 174-75.
25 Registration No. 4695002, id. at 176-77.
26 Registration No. 5723196, id. at 184-85.

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The third-party websites and registrations demonstrate that Applicant’s
“nutritional supplements for cats” and “cat food” and Registrant’s “cat litter” are
offered under the same mark by the same party or emanate from the same source
under the same mark, and are thus, related. See, e.g., Detroit Athl., 903 F.3d at 1306
(crediting relatedness evidence that third parties use the same mark for the goods
and services at issue because “[t]his evidence suggests that consumers are
accustomed to seeing a single mark associated with a source that sells both”); Hewlett-
Packard., 281 F.3d at 1267 (evidence that “a single company sells the goods and
services of both parties, if presented, is relevant to a relatedness analysis”); DeVivo
v. Ortiz, No. 91242863, 2020 WL 1227592, at *14 (TTAB 2020) (“While not evidence
of use of the marks therein, third-party registrations may serve to suggest that the
parties’ goods ... are of a type which may emanate from a single source.”); In re
Country Oven, Inc., No. 87354443, 2019 WL 6170483, at *5 (TTAB 2019) (as a general
proposition, third-party registrations that cover goods from both the cited registration
and an applicant’s application are relevant to show that the goods are of a type that
may emanate from a single source under one mark). Despite Applicant’s attempt to
show that there are third-parties that sell only the goods of Applicant or Registrant,27
the Examining Attorney’s third-party evidence demonstrates that consumers are
accustomed to seeing a single mark associated with a single source that offers all the
27 16 TTABVUE 8 (“A brief Internet search found over 40 manufacturers who only sell cat
food and/or cat nutritional supplements, and who do not sell cat litter.”).

Serial No. 98009242
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relevant goods.28 See Detroit Athl., 903 F.3d at 1306.
Because neither identification includes any restriction regarding channels of trade
or classes of purchasers, we must presume that these respective goods travel through
all usual trade channels for such goods and are offered and sold to all of the usual
customers for those goods. See Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d
1352, 1361 (Fed. Cir. 2000) (“When the registration does not contain limitations
describing a particular channel of trade or class of customer, the goods or services are
assumed to travel in all normal channels of trade.”); see also In re Joel Embiid, No.
88202890, 2021 WL 2285576, at *12 (TTAB 2021). Our findings are confirmed by the
Examining Attorney’s evidence of third-party websites referenced above which
demonstrate that the goods are sold together. See In re Ox Paperboard, LLC, No.
87847482, 2020 WL 4530517, at *7 (TTAB 2020). Moreover, in addition to this
evidence of third-party websites that offer the relevant goods, we can also presume
28 While we acknowledge that the Office has the ultimate burden of establishing a likelihood
of confusion, we nonetheless note that, in her supplemental brief, Applicant effectively
concedes that the second DuPont factor supports a finding of a likelihood of confusion by not
addressing the similarity or dissimilarity of the goods in her briefs. See In re Morinaga
Nyugyo K.K., No. 86338392, 2016 WL 5219811, at *2 (TTAB 2016). Indeed, Applicant asserts
that she “does not disagree that both marks are being used in similar channels for similar
goods (even though there remains a big difference between cat food, supplements and cat
litter, where the cat and owner are concerned, and ZenCat was in this space first.).” 11
TTABVUE 5. Applicant, however, then changes her stance and argues in her reply brief that
the goods and trade channels are different. See 16 TTABVUE 7-9. As explained above in
“Initial Matters,” the purpose of a reply brief is to offer an opportunity to an applicant to
respond to arguments made by the examining attorney, not to allow the applicant to make
new arguments that come to mind after the filing of the main brief and to which the
examining attorney may not respond. Evidence and arguments raised for the first time in a
reply brief may be considered untimely, and therefore waived or forfeited, and we will not
usually consider an argument on appeal which was not made to the examining attorney. See,
e.g., Future Ads LLC, 2012 WL 3263733, at *2 (claim of acquired distinctiveness raised for
first time in reply brief should have been made in a separate request for remand).

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based on common knowledge that brick-and-mortar stores and veterinarian offices
also offer the relevant goods, namely, Applicant’s cat supplements and food and
Registrant’s cat litter.
We thus find that the second and third DuPont factors favor a finding of likelihood
of confusion.
III. Applicant’s Prior Registration – the 13th DuPont Factor
Under the thirteenth DuPont factor, the Board considers “[a]ny other established
fact probative of the effect of use,” DuPont, 476 F.2d at 1361. It is a “catchall” factor
that “accommodates the need for flexibility in assessing each unique set of facts ...”
In re Country Oven, Inc., No. 87354443, 2019 WL 6170483, at *8 (TTAB 2019)
(citations omitted). “This includes a variety of circumstances, such as the coexistence
of an applicant’s prior-registered mark with the cited registration. Where an
applicant owns a prior registration and the mark is ‘substantially the same’ as in the
applied-for application, this can weigh against finding that there is a likelihood of
confusion.” Id. (citations omitted).
Applicant argues that she owns the “Registered Mark, ZenCat, (granted May 22,
2018)”29 for use on “similar trade channels prior to the granting of Registrant’s mark,
and wonders why the mark ZEN KITTY (granted April 23, 2018) was allowed to be
29 11 TTABVUE 4. Registration No. 5477027 issued May 22, 2018 for “cat toys” in
International Class 28; “veterinary services” in International Class 44; and “animal adoption
services, namely, arranging for dogs and cats from shelters to be placed in homes” in
International Class 45 (the “Prior Registration”). See May 23, 2023 Application at TSDR 6.
Although Applicant introduces this argument for the first time in her supplemental appeal
brief, Applicant submitted a copy of the Prior Registration certificate with the Application.
Additionally, the Examining Attorney has not objected to this new argument and
substantively addresses the evidence. We consider the argument and Prior Registration.

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registered in the first place”;30 and that:
ZEN KITTY is the newcomer in the cat space, not ZenCat. A review of the
ZEN KITTY application shows that the application and registration of
ZenCat for cat toys and veterinary services was not even considered when
granting the ZEN KITTY mark, though the two marks clearly compete within
the same space.31
The Prior Registration is for the composite mark .32
Although not cited by Applicant, it appears Applicant is attempting to rely on In
re Strategic Partners, Inc., No. 77903451, 2012 WL 1267930 (TTAB 2012) wherein, in
determining whether the coexistence of a prior registration with a cited registration
weighs against finding confusion between the marks, we may consider: (1) whether
the mark in the Prior Registration is the same as the mark in the Application or is
otherwise not meaningfully different; (2) whether the identifications of goods or
services in the Application and Prior Registration are identical in relevant part; and
(3) the length of time the Prior Registration has coexisted with the Cited Registration
being considered as the basis for the Section 2(d) refusal. Strategic Partners, 2012 WL
1267930, at *3-4 (An applicant’s prior registration may be probative of no likelihood
of confusion in the “unique situation presented by the coexistence of [the] applicant’s
existing registration with the cited registration for over five years, when [the]
30 Id.
31 Id.
32 May 23, 2023 Application at TSDR 6.

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applicant’s applied-for mark is substantially similar to its existing registered mark,
both for identical goods.”). That unique situation is not present here.
We observe that the Prior Registration, as with the applicant’s prior registration
in Strategic Partners, issued over five years ago, and thus “is not subject to attack by
the owner of the cited registration on a claim of priority and likelihood of confusion.”
Strategic Partners, 2012 WL 1267930, at *3. In addition, the Prior Registration is for
the same mark identified in the Application.
An important contrast from Strategic Partners, as the Examining Attorney points
out,33 is that the goods and services in the Prior Registration and the goods in the
Application are not the same. The supplements and cat food identified in the
Application are clearly not the same as the cat toys, veterinary and animal adoption
services identified in the Prior Registration. See In re Country Oven, Inc., No.
87354443, 2019 WL 6170483, at *10 (TTAB 2019) (“Applicant’s only prior registration
that has been registered for over five years and thus impervious to a challenge under
Section 2(d) is, as noted, for different services.”); cf. In re Inn at St. John’s, LLC, No.
87075988, 2018 WL 2734893, at *7 (TTAB 2018) (declining to extend Strategic
Partners where an applied-for mark was “partially” similar to the mark in an existing
registration owned by that applicant although the services were identical).
Consequently, in contrast to our finding in Strategic Partners, the Prior
Registration does not obviate or weigh against a finding of likelihood of confusion.
To the extent Applicant is also arguing that because its Prior Registration and the
33 13 TTABVUE 11.

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Cited Registration are allowed to co-exist, we should be consistent and allow
registration of the Application, this argument is unavailing.
The USPTO is required to apply the applicable statutory requirement to the
unique facts and evidence of each case. The “Board has ‘recognize[d] that ‘consistency
is highly desirable,’ [but] consistency in examination is not itself a substantive rule
of trademark law, and a desire for consistency with the decisions of prior examining
attorneys must yield to proper determinations under the Trademark Act and rules.”
In re Korn Ferry, No. 90890949, 2024 WL 3219482, at *5 n.13 (TTAB 2024) (cleaned
up); see In re Cordua Rests., Inc., 823 F.3d 594, 600 (Fed. Cir. 2016) (“The [US]PTO
is required to examine all trademark applications for compliance with each and every
eligibility requirement . . . even if the PTO earlier mistakenly registered a similar or
identical mark suffering the same defect.”); see also In re Blvd. Entm’t Inc., 334 F.3d
1336, 1343 (Fed. Cir. 2003) (“The fact that, whether because of administrative error
or otherwise, some marks have been registered even though they may be in violation
of the governing statutory standard does not mean that the agency must forgo
applying that standard in all other cases.”). Applicant’s ownership of the Prior
Registration, even if for the identical mark, does not compel the approval of another
if, as in this case, it would otherwise be improper to do so. See, e.g., Shinnecock Smoke
Shope, 571 F.3d at 1174 (“Even if all of the third-party registrations should have been
refused registration under section 1052(a), such errors do not bind the USPTO to
improperly register Applicant’s marks.”); In re Perez, No. 73777892, 1991 WL 326597,
at *2 (TTAB 1991) (Section 2(d) refusal affirmed even though the cited registration
had not been cited against applicant’s previous registration, now expired, of the same

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mark for the same goods).
We find that the thirteenth DuPont factor is neutral.
IV. Mark Description
As noted, the Application currently contains the following description of the mark:
The mark consists of a black cat and a white cat intertwined to form the yin
yang symbol. The heads and tails of the cats follow the curves of the circle,
with each cat occupying one half of the circle. The black cat is entirely black
except for its white eyes, ear outline, nose, and claws, while the white cat is
entirely white except for its black eyes, ear outline, nose, claws, and knee
outline. Both cats are curled up with their heads near each other's tails,
creating a circular shape. The background of the design is red. Positioned
below the cat design is the compound word “ZENCAT” in white lettering,
positioned on the same red background. The word is approximately the same
width as the cat design, but approximately one-fourth the height of the
design. The text is written in a whimsical serif font with a slight italic slant,
and the “Z” of “ZEN” and the “C” of “CAT” are both capitalized.
Applications for marks that are not in standard characters require a description
of the mark. Trademark Rule 2.37; see also TRADEMARK MANUAL OF EXAMINING
PROCEDURE (TMEP) § 808 (Description of Mark) (Nov. 2025). The description “should
state clearly and accurately what the mark comprises, and should not create a
misleading impression by either positive statement or omission.” TMEP § 808.02.
Also, as explained by the Examining Attorney, “[m]ark descriptions must use
common non-proprietary language to describe the mark elements.”34 See 37 C.F.R.
§2.37; TMEP §808.02. In support, the Examining Attorney included a copy of a
registration for SERIF.35
We agree with the Examining Attorney that the current description of the mark
34 13 TTABVUE 12.
35 June 18, 2025 Remand Request at TSDR 3.

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in the Application improperly includes the registered mark SERIF. In the reply brief,
Applicant agreed to remove reference to SERIF in the description of the mark seeking
to the amend the description to:
The mark consists of a black cat and a white cat intertwined to form the yin
yang symbol. The heads and tails of the cats follow the curves of the circle,
with each cat occupying one half of the circle. The black cat is entirely black
except for its white eyes, ear outline, nose, and claws, while the white cat is
entirely white except for its black eyes, ear outline, nose, claws, and knee
outline. Both cats are curled up with their heads near each other’s tails,
creating a circular shape. The background of the design is red. Positioned
below the cat design is the compound word “ZenCat” in white lettering,
positioned on the same red background. The word is approximately the same
width as the cat design, but approximately one-fourth the height of the
design. The text is written in a whimsical font with a slight italic slant, and
the “Z” of “Zen” and the “C” of “Cat” are both capitalized. The colors black,
white, and red are claimed as features of the mark.
We find this amended description accurately describes the elements of the mark
in the Applicant and is appropriate. The amendment will be entered rendering moot
the refusal based on the mark description. See In re S. Malhotra & Co., No. 79194076,
2018 WL 4660940, at *1 n.3 (TTAB 2018) (refusals to register based on requirements
for translation and transliteration statements deemed moot because examining
attorney suggested statements during prosecution, applicant accepted them in its
brief, and the Board entered them).
V. Conclusion
Having considered all evidence and argument bearing on the relevant DuPont
factors, we find that the similarity of the marks and goods, and the overlap in
channels of trade and classes of customers weigh in favor of finding a likelihood of

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confusion. The thirteenth factor is neutral. No factor weighs against a likelihood of
confusion.
We conclude that confusion is likely. The description of the mark will be amended
as described above.
Decision: The refusal to register Applicant’s mark in International Classes 5 and 31
is affirmed under Section 2(d), 15 U.S.C. § 1052(d). The refusal to register Applicant’s
mark on the ground that the description of the mark is unacceptable because it
includes a registered term is deemed moot in light Applicant’s amended description
of the mark. The Application will proceed to registration in International Class 25
with the amended description of the mark.