IP Law Daily, TRADEMARK—TTAB: GASPER ROOFING not confusingly similar to JASPER CONTRACTORS, Board rules, (Nov 10, 2025)

By Robert Margolis, J.D.

Board rejects Examining Attorney’s argument that GASPER and JASPER might be pronounced the same, distinguishing cases involving “coined” marks, such as IKEA and LEGO, with no specific meaning or established pronunciation, from marks involving a surname with known pronunciation.

Rejecting what it deemed an Examining Attorney’s “speculation” that GASPER in the applied-for GASPER ROOFING trademark could be pronounced with a soft “g” and therefore possibly identical phonetically to JASPER in a registered trademark JASPER CONTRACTORS, the Trademark Trial and Appeal Board has reversed the Section 2(d) refusal to register the GASPER ROOFING mark. The Board reasoned that the precedent on which the Examining Attorney relied concerned “coined” marks having no apparent meaning or established pronunciation (e.g., IKEA, AKEA, LEGO, MEGO), which are distinguishable from a mark based on a surname that has an established pronunciation (e.g., GASPER). And because record evidence showed that the surname “Gasper” is pronounced with a hard “g,” the applied-for mark sounds different from “jasper” when verbalized. That coupled with the difference between ROOFING and CONTRACTORS, in the context of roofing services that the Board held consumers purchase with a “high degree of care,” led the Board to overrule the 2(d) refusal to register. The Board’s precedential opinion also addressed how to properly submit video evidence in an ex parte appeal (In re Jason Jimenez, No. 97551823 (T.T.A.B. Nov. 5, 2025)).

The applicant, Jason Jiminez, sought to register the standard character mark GASPER ROOFING (ROOFING disclaimed) on the Principal Register for, inter alia, “roofing services” in International Class 37. The Examining Attorney refused registration for two reasons, only one of which was at issue on appeal: that under Section 2(d) GASPER ROOFING was likely to cause confusion with the registered standard character mark JASPER CONTRACTORS (CONTRACTORS disclaimed) on the Principal Register also for “roofing services” in International Class 37. On appeal, the Board addressed the 2(d) refusal to register as well as an evidentiary issue about the proper way to proffer video evidence on an ex parte appeal.

Video evidence. Jiminez included links to, and screenshots of, YouTube videos in his brief on appeal. The Examining Attorney objected to this evidence as both untimely and improper. The Board sustained these objections. First, because the hyperlinks and descriptions of their content on YouTube were not part of the record in Jiminez’s application before he filed his appeal, the Board found their inclusion in the appeal brief to be an improper attempt to augment the record. Second, even if timely, merely providing only a link and a screenshot does not make the content of the videos themselves of record, the Board held, “due to the transitory nature of websites.” Thus, the Board gave no consideration to this evidence.

The Board then explained what Jiminez should have done, for trademark applicants’ “future reference.” Applicants may make video files of record during the prosecution of an application by submitting them in an acceptable format to the USPTO (such as.wav,.wmv,.wma,.mp3,.mpg, or.avi). If properly made of record during the prosecution, the Board indicated that it will consider such evidence during the ex parte appeal.

Once the Board has jurisdiction over an appeal, and the time for filing a request for reconsideration has lapsed, if no such video was properly made of record during the prosecution, the only way to make a new video of record for consideration during the appeal “is to file with the Board a separately captioned written request for remand with a showing of good cause prior to the deadline for filing an applicant’s main appeal brief.” The Board’s filing system is not equipped to accept video files. Therefore, applicants filing such written requests should support their “good cause” arguments with transcripts of the video(s) and represent that upon remand to the Examining Attorney, the applicant will submit the video in the acceptable manner described above.

Not confusingly similar. Turning to the substance of the 2(d) refusal to register, the Board addressed the DuPont factors and found that on balance they supported registration of GASPER ROOFING. In particular, while the services offered in connection with both marks are identical, “roofing services,” and therefore channels of trade and classes of consumers are presumed to be similar as well, these factors supported a likelihood of confusion. But those were the only factors falling on that side of the ledger.

The Board then found the “similarity of the marks” factor weighs against finding a likelihood of confusion. The Examining Attorney argued that the marks are similar in sound, appearance, connotation, and commercial impression because their first words, GASPER and JASPER, are dominant and “nearly identical.” He based this on the premise that the surname GASPER and the term JASPER are phonetic equivalents because GASPER can be pronounced either with a hard or soft letter “g” sound. He relied on cases holding there is no correct pronunciation of “coined” word marks, such as IKEA, AKEA, LEGO, or MEGO. But as the Board pointed out, the rule that the Examining Attorney sought to apply may be applicable to marks using “invented” terms “devoid of any understood meaning,” but does not apply in this case, where the record included evidence as to the proper pronunciation of the surname GASPER.

The record showed that neither the surname “Gasper,” nor the word “jasper,” is a coined term. While the Examining Attorney merely speculated that “Gasper” can be pronounced with a soft letter “g” sound, in fact, the evidence established that “Gasper” is a surname beginning with the sounds “gas” and “gasp” that are recognized as being pronounced with a hard letter “g” sound. The dictionary entry for “jasper” further shows it is pronounced with a soft letter “j” sound and not the hard letter “g” sound.

In addition, while disclaimed, the terms ROOFING and CONTRACTOR in the respective marks further differentiates their connotations and commercial impressions when the marks are considered in their entireties, the Board found. Finally, GASPER connotes a surname, while JASPER connotes a semi-precious stone. For these reasons, this factor supported registration.

The different connotations are particularly important in a case like this, involving roofing services that by their nature are “relatively expensive and would ordinarily be purchased with a relatively high degree of care.” The DuPont factor of “purchasing conditions” therefore favored registration, and when combined with the dissimilarity of the marks, outweighed the similarity in services, channels of trade, and classes of consumers, the Board held.

The Case is Serial No. 97551823.

Judge: Lykos, A.

Attorneys: Ashok Tankha (Weinberger & Husick) for Jason Jimenez. Jonathon Schlegelmilch for the USPTO.

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