IP Law Daily, TRADEMARK—TTAB: TTAB reverses refusal in ‘mermAId‘ trademark case, finding no likelihood of confusion despite similar marks, (May 15, 2026)

By Wendy Biddle, J.D.

Differences in the goods and consumer sophistication outweighed similarities between the marks.

The Trademark Trial and Appeal Board reversed a Section 2(d) refusal in a trademark dispute involving TDI Novus Inc.'s application to register the stylized mark "mermAId" for a sophisticated voice communication system designed for autonomous maritime vehicles. In a nonprecedential opinion, the Board found that despite similarities between the applicant's mark and the registered mark MERMADE, the specialized nature of the goods and the sophistication of the relevant consumers made confusion unlikely (In re TDI Novus Inc., No. 98593408 (T.T.A.B. May 12, 2026)).

Background. TDI Novus Inc. sought registration on the Principal Register for its mark, which consists of the stylized word "mermAId" with lowercase letters except for a capitalized "A," accompanied by a wireless signal icon represented by three curved lines positioned above the letter "I." The application, filed on June 10, 2024, covered a voice communication system for autonomous maritime vehicles in Class 9. According to the identification, the system comprises an apparatus to record, transcribe, translate, and parse voice communications over the radio frequency spectrum while autonomously providing system-generated voice transmission responses that are contextually appropriate based on current and earlier transmissions.

The Trademark Examining Attorney refused registration based on likelihood of confusion with the registered standard character mark MERMADE, which covers extensive goods and services in Classes 9, 35, and 41. The cited registration specifically includes apparatus for recording, transmission, or reproduction of sound and images in Class 9. After the Examining Attorney made the refusal final, the applicant requested reconsideration and filed an appeal. The Examining Attorney denied the request, and both parties filed briefs with the Board.

The co-pending application argument. At the outset of its analysis, the Board addressed an argument raised by the applicant for the first time in its appeal brief. The applicant asserted that a related application for the plain word mark MERMAID, covering identical goods in Class 9, had been examined, approved, and published for opposition on October 7, 2025, despite the same cited registration. The applicant argued that consistency in examination promotes fairness and predictability, and that no material facts distinguished the applications.

The Board declined to consider this argument, agreeing with the Examining Attorney that the evidentiary record must be complete prior to filing an ex parte appeal. The Board noted that it cannot consider evidence submitted for the first time with an appeal brief and does not typically accept a mere listing of a registration or application to make it part of the record. The Board further observed that the applicant could have raised the consistency issue prior to filing the appeal or requested remand to introduce such evidence.

Comparison of the marks. The Board analyzed the first DuPont factor, which focuses on similarity or dissimilarity of the marks in their entireties regarding appearance, sound, connotation, and commercial impression. The Board found that in terms of sound, the marks are likely to be pronounced the same. As to appearance, while acknowledging some differences—namely the different spelling and the accentuation of the letters "AI" with a wireless signal icon above the letter "I"—the Board concluded the marks remain close in appearance because they share the same first five letters and the registered mark is likely to be perceived as a novel spelling of MERMAID.

Regarding commercial impression and connotation, the applicant argued that the Wi-Fi symbol and stylized "A" are integral communicative elements signaling that its goods are technologically advanced, network-enabled, and specific to wireless communication systems. The Board agreed only to the extent that the Wi-Fi icon may connote an Internet element and the more prominent letters "AI" may suggest artificial intelligence in connection with the goods. However, the Board found that consumers encountering the applicant's mark would likely understand it as conjuring the mythical sea creature, a mermaid. Similarly, the registered mark would be viewed as a novel spelling of the same term and thus project a very similar meaning. Overall, the Board found the marks to be more similar than dissimilar, concluding that the first DuPont factor weighs in favor of a likelihood of confusion.

Analysis of the goods. The Board then turned to the second and third DuPont factors concerning the relatedness of the goods and channels of trade. Before comparing the applicant's goods with those listed in the cited registration, the Board found it imperative to have a clear understanding of the nature of the applicant's goods. The Board noted that it may consider extrinsic evidence to acquire a better understanding when the description of goods is somewhat unclear.

The Board highlighted the technical nature of the applicant's goods and their unique features within maritime traffic communication. The application describes the goods as a voice communication system for autonomous maritime vehicles that records, transcribes, translates, and parses voice communications over the radio frequency spectrum while autonomously providing system-generated voice transmission responses that are appropriate and in context. The Board emphasized that materials submitted by the applicant corroborated that the goods are specialized hardware systems for maritime autonomous vehicles targeting a niche market of maritime industry professionals.

The Examining Attorney had argued that the involved goods are in-part legally identical, focusing on the apparatus for recording, transmission, or reproduction of sound and images listed in the cited registration. The Examining Attorney contended that the registrant's broadly worded apparatus for recording and transmission of sound presumably encompasses the applicant's more narrow apparatus for recording and transmission of voice communications to maritime vehicles.

The Board understood the Examining Attorney's argument but ultimately disagreed. The Board found that the applicant's maritime traffic communication system is more than just an apparatus. As described in the application, although the goods incorporate an apparatus that records, they are advanced maritime voice communication systems utilizing a radio frequency spectrum for autonomous maritime vehicles. The Board particularly noted that the system autonomously provides generated voice transmission responses that are appropriate and in context of the transmission and any earlier transmissions. As the Board explained, the applicant's system incorporates incoming transmissions and generates intelligent responses, all within the field of maritime traffic and for autonomous marine vehicles.

The Board concluded that the applicant's goods are so specialized that, without more evidence, they are not related to the goods in the cited registration. Accordingly, the second DuPont factor weighed against a finding of likelihood of confusion.

Consumer sophistication. Under the fourth DuPont factor, the Board considered the conditions under which the goods are likely to be purchased and the degree of consumer sophistication. The applicant argued that its goods are sold to highly specialized entities such as maritime engineering firms, defense contractors, and autonomous vessel operators in markets governed by technical procurement, regulatory compliance, and performance validation. The applicant asserted that these buyers purchase through controlled bidding and request-for-proposal processes, not impulse retail, making the channels of trade distinct and mutually exclusive from the registrant's general distribution network.

While the Board noted that the applicant did not submit evidence such as consumer declarations or affidavits to substantiate its contentions regarding the purchasing process, the Board nevertheless agreed that given the intrinsic nature of the applicant's goods, consumers would be discriminating professionals or equally sophisticated purchasing agents with specialized knowledge in the autonomous marine vehicle industry. The Board characterized this as a niche class of consumers who would understandably exercise greater than ordinary care. The Board therefore concluded that the fourth DuPont factor weighs against a likelihood of confusion.

Board's conclusion. In reaching its ultimate conclusion, the Board acknowledged that the first DuPont factor favors a finding of likelihood of confusion because the applicant's mark and the cited mark are overall more similar than not in sight, sound, and connotation. However, the Board found that the second and fourth DuPont factors support a finding that confusion is unlikely primarily because the applicant's goods are voice communication systems for autonomous marine vehicles using generated messages based on incoming messages, and these systems are used in the niche maritime transportation field.

The Board emphasized that consumers of the applicant's goods will be owners or operators of autonomous marine vehicles, and that purchasers are likely to exercise more care in their purchasing decisions given the technical nature of the systems and the inherent safety concerns involving autonomous marine vehicles. Balancing the relevant DuPont factors, the Board determined that the applicant's mark is not likely to cause confusion with the registered mark and reversed the refusal to register.

The Case is Serial No. 98593408.

Judge: NA.

Attorneys: Joseph R. Falcon III (Barley Snyder) for TDI Novus Inc. Maureen Reed for the USPTO.

Companies: TDI Novus Inc.

Cases: Trademark USPTO