For a refusal under Section 2(d) of the Trademark Act, the likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) are applied. See, e.g., In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023); see also 15 U.S.C. § 1052(d) (prohibiting registration of a mark that “so resembles a mark registered in the Patent and Trademark Office … as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive”). “The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976). 

Reg. No. 3108821

The TTAB recently reversed a Section 2(d) refusal of the word mark, DRAGONSLAYER, for “Role playing game equipment in the nature of downloadable game book manuals” and “Role playing game equipment in the nature of printed game book manuals,” in view of a registered composite mark containing the words DRAGON SLAYERS for “Board games and equipment sold as a unit for playing boardgames.” In re Greg Gillespie, Ser. No. 97840298 (TTAB Oct. 29, 2025). 

While “the marks share a nearly identical term: DRAGONSLAYER and DRAGON SLAYERS. But we note that the term DRAGONSLAYER is singular, and appears to connote one person's name or nickname, whereas the term DRAGON SLAYERS appears not to connote a name of a person, but rather a description of a group (a connotation reinforced by the phrase “CONQUERORS OF DARKNESS”).” 

In addition, “DRAGON SLAYERS CONQUERORS OF DARKNESS REV.12:7-11” is visually much longer than “DRAGONSLAYER.” Furthermore, “[m]eaning-wise, it contains ideas besides the common term ‘DRAGON SLAYERS': the phrase ‘CONQUERORS OF DARKNESS,' which is a different idea; and ‘REV.12:7-11,' which is a reference to a passage in the Bible.” 

The TTAB also noted the design elements in the registered mark including the “large” sword, and the words “CONQUERORS OF DARKNESS” and “REV.12:7-11” in “smaller, but not insignificantly-sized, typeface.” In particular, the words “CONQUERORS OF DARKNESS” were “not so small as to not have a significant degree of prominence in the mark.” 

     Overall, we cannot agree with the Examining Attorney that the term “DRAGON SLAYERS” is “more likely to be perceived as the more dominant portion of the [cited registered] mark.” The term “CONQUERORS OF DARKNESS” is nearly as prominent, and the design elements are quite memorable as well. We're not even sure that we can agree that, in the mark as depicted in its design form, the term “DRAGON SLAYERS” would be seen as the first term in the mark. Read starting from either the left or the top, the first literal term is CONQUERORS, which is then seen as part of the phrase “CONQUERORS OF DARKNESS.”

     There's no legal rule that says that any mark, let alone a multi-component mark comprising multiple phrases together with design elements, has to have a “dominant portion.” Perhaps in another design, with a different arrangement of the words and a typeface with a significantly greater size or placement advantage over “CONQUERORS OF DARKNESS,” the term “DRAGON SLAYERS” could indeed be the “dominant element” in creating a commercial impression. But in the registration before us, we simply cannot say that “DRAGON SLAYERS” is the dominant element.

     Overall, we think the differences in the two marks—resulting from the complexity of how the mark in the cited registration is depicted—far outweigh the similarity resulting from the DRAGONSLAYER / DRAGON SLAYERS components. This important factor will weigh against the refusal in the final weighing, which we undertake next.

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Here, we have only one factor (differences in the marks) weighing against likelihood of confusion and several factors weighing in favor of likelihood of confusion: the close relation between the services and the overlap on trade channels and classes of customers (two other factors are neutral). But this is not simply a mechanical tally of the number of factors on either side. See, e.g., Citigroup Inc. v. Cap. City Bank Grp., Inc., 637 F.3d 1344, 1356 (Fed. Cir. 2011). Rather, “the various evidentiary factors may play more or less weighty roles in any particular determination.” In re Shell Oil Co., 992 F.2d 1204, 1206 (Fed. Cir. 1993) (citation omitted). We believe that this case presents a situation where the differences in the marks, taken in their entireties, outweigh the other factors. This is always an important inquiry, as we mentioned above, see, e.g., Herbko Int'l, 308 F.3d at 1165; Federated Foods, 544 F.2d at 1103, and sometimes it is decisive. Here, we conclude that its weight on one pan of the balancing scale outweighs the collective weight of the three factors on the other pan. See, e.g., Champagne Louis Roederer, S.A. v. Delicato Vineyards, 148 F.3d 1373, 1375 (Fed. Cir. 1998) (differences between CRISTAL CHAMPAGNE and CRYSTAL CREEK outweighed other factors); . . . Keebler Co. v. Murray Bakery Prods., 866 F.2d 1386, 1387 (Fed. Cir. 1989) (affirming Board's holding “that the more important fact … is the dissimilarity in commercial impression between the marks ‘PECAN SANDIES' and ‘PECAN SHORTEES'” for cookies and that “these marks, in their entireties” do not convey similar commercial impressions); Am. Grease Stick Co. v. Chemplast, Inc., 341 F.2d 942, 944 (CCPA 1965) (“the dissimilarities of the competing marks [FLUORO GLIDE vs. RU GLYDE and SIL-GLYDE] heavily outweigh the similarities, especially in sound and appearance”).

While Applicant's DRAGONSLAYER mark is nearly identical to the component term “DRAGON SLAYERS” in the registered mark, the TTAB also found that registered mark is “a much busier mark.” 

Accordingly, the TTAB reversed the Section 2(d) refusal.