When confronted with a Section 2(d) refusal for likelihood of confusion with a registered mark, one strategy is to argue that the common segment between the marks is conceptually weak by presenting evidence of third-party registrations of similar marks for similar goods or services. See Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (“[E]vidence of third-party registrations is relevant to 'show the sense in which a mark is used in ordinary parlance,' … that is, some segment that is common to both parties' marks may have 'a normally understood and well-recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak'” (quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015))); see also Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1057 (TTAB 2017) (“third-party registration evidence that does not equate to proof of third-party use may bear on conceptual weakness if a term is commonly registered for similar goods or services” (citing Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976))); cf. In re FabFitFun, Inc., No. 86847381, 2018 TTAB LEXIS 297 ("based on the totality of the evidence, including the dictionary definition, we find that the shared phrase SMOKIN' [SMOKING] HOT is somewhat weak in that it at best suggests a desired result of using the identified cosmetics, while the third-party uses discussed above tend to show consumer exposure to thirdparty use of the term on similar goods"). 

“To make a third-party registration of record, a copy of the registration, either a copy of the paper USPTO record, or a copy taken from the electronic records of the Office, should be submitted.” In re Jump Designs, LLC, No. 76393986, 2006 TTAB LEXIS 209, at *6; see also In re ZeroSix, LLC, No. 88981832, 2023 TTAB LEXIS 209, at *1 (“[M]erely listing third-party registrations does not make them of record.”); cf. In re House Beer, LLC, No. 85684754, 2015 TTAB LEXIS 66, at *3 (declining to take judicial notice of the files of applications or registrations residing in the Office). 

In considering a Section 2(d) refusal of ZEN WAFFLES for "waffles" in view of the registered ZEN BAKERY mark for "bakery goods" and "muffins"; the TTAB recently sustained an objection that there was no admissible evidence as a result of Applicant's reliance on third-party ZEN-formative marks identified only by serial numbers and abbreviated goods, and copies of the TSDR records were not properly introduced into the record. In re Zen Cafe Corp., Ser. No. 99185689 (TTAB Oct. 7, 2026).

Applicant . . . argues the cited [ZEN BAKERY] mark is commercially weak because: “The marketplace is saturated with ZEN-formative marks for tea, matcha, spices, noodles, packaged foods, beverages, cafes, and restaurants,” and “[t]he term ZEN is also used in connection with many other food and wellness-themed products.” But . . . Applicant did not support this argument with any admissible evidence.

The record was devoid of any evidence showing third-party marketplace use of the term ZEN as a mark or an element of a mark, and the TTAB found that the sixth DuPont factor to be neutral, and accorded the ZEN BAKERY mark the scope of protection due an inherently distinctive mark.