IP Law Daily, TRADEMARK—TTAB: Refusal of TOUCH MOBILE affirmed for likelihood of confusion, indefinite identification, (Jul 7, 2026)

By Jonathan Anderson

Applicant’s mark and the registered marks are highly similar, with partly identical services and closely related goods.

The Trademark Trial and Appeal Board (TTAB) affirmed an examining attorney’s partial refusal to register TOUCH MOBILE (MOBILE disclaimed) for communications goods and services such as mobile radios and cellular phones. The examining attorney had found that the Applicant’s mark was likely to cause confusion with five registered marks. The Board agreed, writing that the Applicant’s mark and the registered marks were highly similar. Also, according to the Board, the Applicant’s services were legally identical in part to the cited registration’s services, and the trade channels and classes of consumers are presumed identical. In addition, the Applicant’s goods were closely related to the cited registration’s services, and the trade channels and classes of consumers overlap. The examining attorney had also found, and the Board agreed, that the Applicant’s identification of goods and services was indefinite (In re TextNow Inc., No. 98231457 (T.T.A.B. Jun. 23, 2026)).

Background. The Applicant, TextNow Inc., applied to register the standard-character mark TOUCH MOBILE (MOBILE disclaimed) on the Principal Register for various telecommunications and communications goods and services in International Class 9 and International Class 38. The examining attorney issued a partial refusal of registration on two grounds. First, the examining attorney found that Applicant’s mark, as applied to the goods in Class 9 and the services in Class 38, is likely to cause confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with five marks on the Principal Register. The five marks identified by the examining attorney were MOBILE TOUCH in standard characters (MOBILE disclaimed); TOUCH TEL MOBILE in standard characters (MOBILE disclaimed); TOUCH TEL (TEL disclaimed); and TOUCH TEL PAGING (PAGING disclaimed) for both typeset and design. The five marks relate to various telecommunications goods and services in Class 9 and Class 38. Second, the examining attorney found that Applicant’s identification of goods is indefinite. The applicant appealed and requested reconsideration, which was denied.

Likelihood of confusion. The Board analyzed all the probative evidence of record bearing on a likelihood of confusion and considered each DuPont factor for which there was evidence and argument. The Board focused its analysis on the mark MOBILE TOUCH, the cited mark that is most similar to Applicant’s mark TOUCH MOBILE. Because the Board found confusion likely based on this mark and services in this registration, the Board said it did not need to consider the likelihood of confusion between Applicant’s mark and the marks in the other cited registrations.

Other established facts probative of the effect of use. The Board deemed this factor neutral. Applicant argued that it owned the prior registration covering the mark TOUCH MOBILE for goods in Class 9 and services in Class 38 that are identical to those listed in the subject application, and that such ownership is relevant to the registrability of its identical mark for identical goods and services. Applicant’s prior registration was cancelled for failure to file the required Section 8 declaration. However, the Board rejected Applicant’s arguments to consider ownership of the prior registration.

Strength or weakness of registrant’s mark. The Board found this factor neutral. The Board wrote that the word “MOBILE” is at least descriptive when used in both marks, each of which disclaimed the word, rendering it a conceptually weak component. However, the Board said the record does not demonstrate that MOBILE TOUCH as a whole is conceptually weak. Therefore, the cited mark is entitled to the normal scope of protection to which inherently distinctive marks are entitled.

Similarity or dissimilarity of the marks. The Board found this factor weighs heavily in favor of a likelihood of confusion, concluding that the marks are highly similar. The Board noted that Applicant’s mark is merely a transposition of the cited mark, which demonstrates the overall similarity of the marks in appearance, sound, and commercial impression. The Board said it also agreed with the examining attorney that both marks convey the meaning of a “touch” that is mobile.

Similarity of the goods and services. The Board found this factor weighs in favor of a likelihood of confusion. The Board reasoned that the identifications on their face show that Applicant’s Class 38 services are legally identical, at least in part, to the services covered by the cited registration, and that Applicant’s Class 9 goods are closely related to those services.

Trade channels and classes of consumers. The Board found this factor weighs in favor of a likelihood of confusion, noting the similarity of the trade channels and classes of customers. The application and cited registration do not contain any restrictions on the channels of trade or classes of customers.

Identification. The Board said it agreed with the examining attorney that the identifications in Classes 9 and 38 are indefinite because the identifications fail to sufficiently specify the nature, use, and/or purpose of certain goods and services. Applicant did not contest this part of the refusal on any substantive basis.

The Case is Serial No. 98231457.

Attorneys: Matthew D. Kendall (Gardner, Linn, Burkhart & Ondersma LLP) for TextNow Inc. Faith Beaudry-Torres for the USPTO.

Companies: TextNow Inc.

Cases: Trademark USPTO