Federal Circuit Vacates TTAB Decision Finding Likelihood of Confusion and Remands for Further Analysis of Third-Party Uses of Similar Marks in Use on Similar Services

In Apex Bank v. CC Serve Corp., No. 2023-2143 (Fed. Cir. Sept. 25, 2025), the Federal Circuit vacated and remanded a TTAB decision refusing to register Apex’s trademark based on likelihood of confusion.

The USPTO granted Apex’s application for the mark ASPIRE BANK for “banking and financial services.” CC Serve, a credit card service, initiated a successful opposition at the TTAB based on its ASPIRE mark for “credit card services.” Apex appealed, arguing that the TTAB erred in analyzing three of the DuPont factors for evaluating likelihood of confusion, namely the first (overall similarity of the marks), second (similarity of goods and/or services), and sixth (third-party use of similar marks) factors.

The Federal Circuit affirmed the Board’s findings on the second factor and vacated its findings on the first and sixth factors. For the second factor, the court found that substantial evidence supported the Board’s analysis that “credit card services” and “banking and financial services” are similar, as each encompasses extending credit and the issuance of credit cards. For the sixth factor, the court found that the Board erred in considering evidence of third-party uses of similar marks for only credit card-related services to the exclusion of the broader financial services industry. The court clarified that the third-party use analysis should consider not only identical services but similar ones. Finally, the court vacated the Board’s analysis on the first factor because the overall similarity of the marks may be informed by the Board’s reconsideration of the sixth factor under the correct standard for third-party use. The court remanded for the TTAB to consider the number and nature of similar marks on similar goods and the appearance, sound, connotation, and commercial impression of the marks in light of its finding that the parties’ services are highly similar.