Attorney advertising. This article is general information, not legal advice.

If you plan to argue that a word in your brand is so common in your industry that no one owns it, you need proof, not just a statement. On October 7, 2026, the Trademark Trial and Appeal Board affirmed a refusal to register ZEN WAFFLES for waffles and waffle mixes because of the registered mark ZEN BAKERY for bakery goods. In In re Zen Cafe Corp., Serial No. 99185689, the applicant argued that ZEN is a weak, widely used term in food and wellness branding. The Board found nothing admissible in the record to back that up.

The decision is not precedential, so it doesn’t bind future panels. But it applies familiar rules that matter to any small food, bakery, or farm-products brand.

The application and the refusal

Zen Cafe Corp. applied to register ZEN WAFFLES (with WAFFLES disclaimed) for waffles, filled waffles, frozen waffles, waffle mixes, and protein-enriched waffles. The examining attorney refused registration under Section 2(d), citing two registrations for ZEN BAKERY owned by the same company: one in standard characters for bakery goods, muffins, cookies, rolls, and pastry, and one stylized. The Board focused on the standard-character registration, which covered the broader goods, and affirmed. Judge Jennifer L. Elgin wrote the opinion.

Why the “crowded field” argument failed

The applicant’s main defense was that ZEN is weak, both conceptually (it suggests calm and wellness) and commercially (many ZEN marks exist for tea, noodles, cafes, and other food products). Both arguments ran into evidence problems:

• Third-party marks weren’t properly in the record. The applicant listed ZEN marks and serial numbers in its briefs instead of submitting copies of the registrations. The Board doesn’t take judicial notice of USPTO files, so the examining attorney’s objection was sustained.
• Search-result counts were just attorney argument. Summaries of USPTO database searches, offered for the first time on appeal without supporting records, weren’t evidence.
• No dictionary evidence was submitted for the “calm and wellness” meaning.
• An earlier Board decision wasn’t preserved. The applicant had cited a prior non-precedential case finding ZEN BAKERY and ZEN DELITES not confusingly similar, but didn’t raise it in its appeal brief, so the argument was waived.

On the merits, the Board agreed with the examining attorney that ZEN isn’t descriptive of baked goods: people “seek out waffles and baked goods because they are hungry,” not in search of calm. And the record had no evidence of third-party marketplace use of ZEN for these goods.

Marks, goods, and buyers

The Board found ZEN to be the dominant part of both marks, since WAFFLES and BAKERY are descriptive and disclaimed. It found the goods related based on twelve third-party registrations covering both bakery goods and waffles, plus evidence of six companies selling both under one brand. The Board refused to narrow the goods based on how the parties actually sell them, because the application and registration contained no such limits. Bakery items are also inexpensive impulse purchases, which increases the risk of confusion. The lack of evidence of actual confusion didn’t help in this one-sided (ex parte) proceeding.

Takeaways for Iowa food and farm brands

• Clear the name before you invest in packaging. A search should cover related goods, not just identical ones. To the USPTO, waffles and bakery goods were related.
• Build the evidence early. If you’ll rely on a “crowded field,” gather copies of third-party registrations and real-world marketplace use (websites, packaging, menus) and put them in the record during examination.
• Don’t assume your sales channel will save you. The Board reads the goods as written, so selling only at a farmers market or online doesn’t narrow an unrestricted identification.
• Preserve every argument. An argument made to the examining attorney but left out of the appeal brief can be waived.
• Consider a more distinctive brand. A stronger, less common term can be easier to register and protect.

Sources: the Board’s October 7, 2026 opinion (PDF), the TTABVUE appeal docket, and commentary on the TTABlog.

For related reading, see our trademarks overview, the federal vs. Iowa filing resource, and the step-by-step trademark guide.

Talk with Iowa trademark counsel

Jason Sytsma helps Iowa food, farm, and consumer brands clear and register names. Learn more on the About Jason page and the firm bio.

Contact the office to request a consultation. Any engagement is subject to conflicts review, an engagement agreement, and applicable professional-responsibility rules. This article is attorney advertising and is intended for general educational purposes only; it is not legal advice and does not create an attorney-client relationship. Results vary, and past experience does not guarantee a particular outcome.