IP Law Daily, TRADEMARK—TTAB: Refusal to register PYTCHBLACK for advertising services affirmed, (Jan 13, 2026)

By Carolin Dennis, B.Sc., LL.B., LL.M.

The TTAB found the applicant’s mark PYTCHBLACK and the registered PITCH BLACK marks are similar in sight, sound, connotation, and commercial impression.

In a non-precedential decision, the Trademark Trial and Appeal Board (TTAB) affirmed an examining attorney’s refusal to register the standard-character mark PYTCHBLACK under Section 2(d) of the Trademark Act, finding a likelihood of confusion with two registered PITCH BLACK marks. The TTAB determined that confusion was likely because the marks are similar, that the services are related, that they would pass though the same normal and usual channels of trade to the same classes of customers, and these customers cannot be expected to exercise sufficient care or sophistication to avoid confusion (In re One PytchBlack, LLC, No. 98402385 (T.T.A.B. Dec. 31, 2025)).

Background. One PytchBlack, LLC (applicant) sought to register on the Principal Register of the standard-character mark PYTCHBLACK for advertising services in International Class 35. The examining attorney refused registration of the applicant’s mark due to a likelihood of confusion with two registered marks: (1) PITCH BLACK in standard characters for “Arranging and conducting business competitions for entrepreneurs to compete for coaching, connections, capital, marketing, legal, technology and accounting support to facilitate business activities; Arranging and conducting special events for business purposes,” in International Class 35; and (2) PITCH BLACK in standard characters for “Entertainment media production services for motion pictures, television and Internet; Entertainment services in the nature of development, creation, production, distribution, and post-production of motion pictures, television shows, multimedia entertainment content; Entertainment services in the nature of production of motion pictures, television shows, multimedia entertainment content,” in International Class 41 (Cited Registrations). When the examining attorney made the refusal final, the applicant appealed.

Likelihood of confusion. The TTAB, upon considering the DuPont factors for evaluating likelihood of confusion, agreed with the examining attorney that the applicant’s mark was likely to cause confusion, mistake, or deception with the registered marks.

Under the first DuPont factor, the TTAB found that the applicant’s PYTCHBLACK mark, which differs from the cited PITCH BLACK marks by one minor misspelling and the omission of a space, was nonetheless similar to the cited marks in sight and very similar, if not the same, in sound. Furthermore, the absence of a space between PYTCH and BLACK in the applicant’s mark does not meaningfully distinguish it from the registered PITCH BLACK marks. The TTAB noted that “Pitch-black” means “extremely dark; black as pitch” and given the marks’ phonetic equivalence and visual similarity, it with the examining attorney that consumers are likely to regard each mark as conveying the same mental impression of extreme darkness. Thus, the marks, taken in their entireties, are similar in sight, sound, connotation, and commercial impression, and the first DuPont factor weighed heavily in favor of finding a likelihood of confusion.

Under the second DuPont factor, the applicant argued that the services provided under the appellant’s mark and the Cited Registrations are not in direct competition. The TTAB disagreed noting that the services need not be identical or even competitive to find a likelihood of confusion. They need only be related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source. The TTAB found that the phrasing of the recitations of services, supported by the third-party use and registration evidence, showed that the applicant’s services were related to the registrants’ services.

Further, according to the identifications of the respective services in the subject application and registrations, the relevant services are unrestricted as to trade channels and classes of purchasers. Thus, the applicant’s and the registrants services travel in the ordinary trade and distribution channels for the services and to all usual classes of consumers. Accordingly, the second and third DuPont factors weighed in favor of finding a likelihood of confusion, with respect to services in both of the Cited Registrations vis-à-vis those in the application, as well as the trade channels for those services.

Under the fourth DuPont factor, because the applicant’s recited services are unrestricted, and include the broadly phrased “providing advertising services,” the TTAB found that such services could be provided to a decidedly mixed group of customers, some seasoned professionals, and others novice, first-time entrepreneurs. In any event, with identical or similar marks used on such goods or services, even a careful, sophisticated consumer of these goods is likely to believe that the goods or services emanate from a common source. Consequently, the fourth DuPont factor weighed only slightly against a likelihood of confusion.

Under the fifth and sixth DuPont factors, the applicant focused entirely on the commercial strength or weakness of the registrant’s marks arguing that the consumers of the services of the appellant and the Cited Registrations will be able to distinguish even minute distinctions between the appellant’s mark “PYTCHBLACK” from the use of the mark “PITCH BLACK” based on the established third-party use of similar marks which all use the conventional two-word spelling. The applicant submitted 11 third-party registrations, and nine third-party uses in which PITCH BLACK forms all or part of the third party’s mark. However, the applicant failed to prove that third-party use was so extensive that the relevant public would be conditioned to distinguish the marks based of minute differences. Therefore, the fifth and sixth DuPont factors were neutral.

The TTAB noted that the applicant has not demonstrated a meaningful opportunity for confusion to have occurred. Accordingly, its founder’s self-serving declaration of an absence of actual confusion is of little or no probative value. Thus, the eighth DuPont factor was neutral.

The applicant argued that its prior and substantially exclusive and continuous use of the mark predates the earliest use in commerce of the PITCH BLACK marks of the Cited Registrations, which establish the appellant as the prior user. The TTAB agreed with the examining attorney that an applicant’s assertion of priority of use is given no consideration in an ex parte proceeding when registration has been refused under Section 2(d) in view of subsisting registrations.

The TTAB noted that the applicant also claimed to have owned a prior registration for PYTCHBLACK for essentially the same services that was cancelled on March 18, 2022, due to the unintentional failure to file a declaration under Section 8. However, the TTAB found that the applicant did not file the present application until February 12, 2024, nearly two years after its prior registration was cancelled. In addition, the two Cited Registrations were registered in August and December of 2022. Therefore, the TTAB concluded that this was not one of those rare situations where the thirteenth DuPont factor obtains. Accordingly, the thirteenth DuPont factor was neutral.

Balancing the DuPont factors, the TTAB determined that confusion is likely between the applicant’s mark and the Cited Registrations. Thus, the refusal to register was affirmed.

The Case is Serial No. 98402385.

Judge: Heasley, D.

Attorneys: Brett M. Pinkus (Spencer Fane LLP) for One PytchBlack, LLC. Javier Jaramillo for the USPTO.

Companies: One PytchBlack, LLC

Cases: Trademark USPTO