A second PET-AGREE filing did not escape the first Board loss

The result, and what it is not

On September 16, 2026, the Trademark Trial and Appeal Board mailed a final decision in Opposition No. 91263504, Mars, Incorporated v. PAGS Inc. PAGS, which does business as Pet-Agree Grooming Supplies, applied to register PET-AGREE GROOMING SUPPLIES. The Board denied PAGS's motion to amend the identification of services and sustained Mars's res judicata claim. The opinion uses res judicata and claim preclusion for the same doctrine. Because that claim disposed of the case, the Board declined to reach likelihood of confusion, collateral estoppel, and dilution by blurring. The caption states that the opinion is not a precedent of the TTAB.

TTABVUE lists the proceeding status, as of the September 16, 2026 status date, as awaiting expiration of the appeal period. The application status on that docket still reads opposition pending. This page stays with the opinion and the dockets. It does not predict an appeal, and it does not add a holding the Board did not make.

• The Board denied PAGS's motion to amend the identification of services.
• The Board sustained Mars's res judicata (claim preclusion) claim.
• The Board did not decide likelihood of confusion, collateral estoppel, or dilution by blurring.

Parties, forum, and the application

The forum is the Trademark Trial and Appeal Board. Mars is the opposer. PAGS is the applicant. The opposed application is Serial No. 88767940, filed January 21, 2020 under Section 1(b) of the Trademark Act, which is an intent-to-use basis. The mark is PET-AGREE GROOMING SUPPLIES in standard characters, on the Principal Register, in International Class 35.

The identification the Board used is wholesale supply store services for pet grooming supplies in the business-to-business market, directed to pet professionals and commercial pet groomers. It expressly excludes pet food, pet treats, and products fed to pets and animals, and it excludes bowls, cups, and containers for those goods. During prosecution, PAGS disclaimed GROOMING SUPPLIES apart from the mark as shown.

The opposition was filed and instituted on July 8, 2020. PAGS answered on August 17, 2020. TTABVUE shows the case submitted for final decision on February 13, 2026. The September 16, 2026 entry is the final decision sustaining the opposition.

What Mars pleaded

The 2026 opinion says Mars opposed on three grounds. The first is likelihood of confusion under Trademark Act Section 2(d) with marks Mars had used and registered. The second is dilution by blurring under Section 43(c). The third is res judicata and collateral estoppel based on the Board's final decision in an earlier opposition between the same parties, Opposition No. 91221462, which had sustained Mars's Section 2(d) claim against PET-AGREE.

In the notice of opposition, Mars pleaded common-law rights in PEDIGREE for the advertising, promotion, distribution, and sale of dog food, dog treats, and dog-related goods and services. It also pleaded registrations. The opinion lists Reg. No. 1386983, a typed drawing, and Reg. No. 4268435, standard characters, for PEDIGREE, and it recites pet food in Class 31 and promotional cups and bowls in Class 21. A typed drawing, the opinion notes, is the legal equivalent of a standard-character drawing. The opinion lists Reg. No. 284342 for canned dog food. It lists Reg. Nos. 1631808 and 1679350, composite marks, for pet food and a periodically published journal on the health care of pets. It lists Reg. No. 1834853, a composite mark, for pet food. A footnote says Mars also pleaded Reg. No. 4236428 for pet food, covering trade dress in the form of product packaging. The opinion says Reg. No. 4343941 was cancelled on December 8, 2023 for failure to file maintenance documents, and the Board gave that registration no consideration. The Board confined the analysis to registrations pleaded in the notice, even though Mars submitted more registrations at trial.

How the case reached a final decision

PAGS admitted the outline of the earlier case. It admitted that it filed application Serial No. 86/235,357 for PET-AGREE, that Mars opposed that application in Opposition No. 91221462, that the parties tried the case, including an oral hearing on or about February 12, 2019, that the Board sustained the opposition on or about July 15, 2019, and that PAGS appealed to the U.S. Court of Appeals for the Federal Circuit and later voluntarily dismissed the appeal. The 2026 opinion treats those points as admissions. PAGS otherwise denied the salient allegations in the notice.

The 2026 opinion cites a February 1, 2021 order for two pleading points. The Board treated PAGS's asserted affirmative defenses as amplifications of its denials. The same order said PAGS had not sufficiently pleaded a Trademark Act Section 18 defense to restrict the application and avoid a likelihood of confusion. That pleading ruling did not bar a later motion under Trademark Rule 2.133 to restrict the identification. PAGS filed an unconsented motion to amend on December 21, 2023. A March 11, 2024 order deferred the motion to trial.

TTABVUE also shows two summary-judgment denials that are not the final decision. Mars's summary-judgment motion, filed September 24, 2020, was denied on February 1, 2021. PAGS's summary-judgment motion, filed March 17, 2023, was denied on August 30, 2023. This review does not describe the grounds of those orders beyond the pleading points the September 16 opinion itself recites from the February 1, 2021 order.

Mars had to prove entitlement to a statutory cause of action, and its claims, by a preponderance of the evidence. The Board said it did not consider statements in the briefs that lacked support in the trial record. It also did not treat non-precedential Board decisions as binding.

The 2019 opposition this filing followed

The earlier opinion is Mars, Incorporated v. PAGS Inc., Opposition No. 91221462, mailed July 15, 2019. That opinion states that it is not a precedent of the TTAB. The hearing date printed on it is February 12, 2019. PAGS sought to register PET-AGREE in standard characters for services that the 2026 opinion says were ultimately identified as wholesale and retail supply store services featuring pet grooming supplies, and online wholesale and retail supply store services featuring pet grooming supplies, in Class 35. Serial No. 86235357 was filed March 28, 2014, based on a claim of use since at least April 26, 2003. The TTABVUE record for Opposition No. 91221462 shows a final decision sustaining the opposition on July 15, 2019. The application status on that docket is abandoned after an inter partes decision.

The 2019 opinion sustains the opposition under Section 2(d) and does not reach dilution. On the marks, it finds PEDIGREE and PET-AGREE similar in sight, sound, connotation, and commercial impression. It calls them practically phonetic equivalents: both begin with PE and end with GREE, the hyphen would not be pronounced, and Mars offered dictionary evidence that the difference in pronouncing T and D would be slight. On the goods and services, it finds them related, including through use-based third-party registrations covering pet grooming supplies and pet food under one mark. On channels, the identification was unrestricted, so testimony that the services were aimed at grooming professionals did not limit the legal scope. The second and third likelihood-of-confusion factors favored confusion. The care factor was neutral: the Board used the least sophisticated potential purchaser and found no reason to expect more than ordinary care. It found the PEDIGREE marks commercially strong for pet food. It found the actual-confusion factors weighed somewhat for PAGS, then found that point outweighed by the other factors. The balancing section concludes that a likelihood of confusion exists.

PAGS appealed to the Federal Circuit on September 16, 2019. The 2026 opinion says PAGS voluntarily moved to dismiss that appeal on January 21, 2020, and the court granted the dismissal on January 27, 2020. The 91221462 docket has a court-decision-dismissed entry on January 27, 2020. On January 21, 2020, the same day as the motion to dismiss, PAGS filed the application in the case decided in 2026.

The claim-preclusion test in the 2026 opinion

The 2026 opinion treats Mars's preclusion claim as offensive claim preclusion. Mars, as the plaintiff, asserted that the earlier judgment means PAGS is not entitled to this registration. The opinion states three requirements. The parties, or their privies, are identical. An earlier final judgment decided a claim on the merits. The second claim is based on the same set of transactional facts as the first.

The Board found the first two requirements met. The parties are the same, which PAGS admitted. The 2019 decision was a final judgment on the Section 2(d) claim, and PAGS withdrew the Federal Circuit appeal. The open question was whether the current Section 2(d) claim rests on the same transactional facts. The opinion says transactional facts are identified pragmatically. It asks whether the marks have the same commercial impression, and whether the evidence of likelihood of confusion in the prior proceeding would be identical to the evidence in this one. Because this case was decided after trial, the Board also compared the two trial records and found them largely the same.

Dilution sits in a narrower box. Because the 2019 Board did not reach dilution, the 2026 opinion says claim preclusion does not bar registration on the dilution claim in this case. The Board still did not decide dilution. Sustaining the res judicata claim was enough, in its view, to dispose of the opposition, so it declined to reach likelihood of confusion, collateral estoppel, and dilution by blurring.

GROOMING SUPPLIES did not make a new mark

The Board found that PET-AGREE GROOMING SUPPLIES creates the same continuing commercial impression as PET-AGREE. PET-AGREE is the entire old mark and the only source-indicating element in the new one. The added words GROOMING SUPPLIES are generic in this application because the identification is about grooming supplies, and because the record showed competitors, including PetEdge, PetSmart, and Walmart, using that phrase to advertise those goods. The Board called the addition a minor alteration. It found that the new wording does not place the mark at a safe distance from PET-AGREE. The opinion applies a caution it draws from an earlier Board decision, Miller Brewing: a party should not be able to avoid claim preclusion by applying again for the same mark with generic words added.

A tighter identification was still the old dispute

The 2026 opinion sets the identifications side by side. In the prior opposition, the services were wholesale and retail supply store services featuring pet grooming supplies, and online wholesale and retail supply store services featuring pet grooming supplies, in Class 35. In this opposition, the services are wholesale supply store services for pet grooming supplies in the business-to-business market, directed to pet professionals and commercial pet groomers, with the exclusions for pet food, treats, products fed to pets, and bowls, cups, and containers.

PAGS argued that those limits are a new set of facts: a business-to-business market rather than general consumers, no retail channel, purchasers who are pet professionals and commercial groomers, and an express exclusion of Mars's goods. Mars argued that the new wording only narrows services the first identification already covered. The Board found that the current identification does not present a new set of transactional facts. It found the services in part legally identical, because dropping retail and adding the business-to-business and professional-purchaser language restates, more specifically, services already inside the broader identification. A judgment on that broader identification extends to the services within it. The opinion says an applicant may not avoid the judgment by filing a narrower identification when those services remain essentially legally identical.

The exclusions did not change that result. The Board noted that the 2019 decision already treated grooming supplies and pet food as not identical. The question was still whether the services are related to Mars's goods. Writing Mars's goods out of the identification did not, the Board found, create a new core of facts. Mars's registrations remain unrestricted as to channels and purchasers, so those goods are still presumed to move in all normal channels to the customers who buy them. Some pet professionals may be careful. Others may not. Where purchasers include both professionals and the public, the Board applied the standard of the least sophisticated potential purchaser.

The trial records pointed the same way. The opinion says the evidence, with a few exceptions, is largely the same record as in 2019. Mars made of record the same PEDIGREE registrations for pet food, canned dog food, a journal on the health care of pets, and cups and bowls used to promote the sale of pet food. The same corporate witness, Melodie (Bolin) Nye, testified in both proceedings. The admissible testimony from Robert Rhoades and Keili Somerlot is the testimony PAGS submitted in the prior opposition in 2017 and 2018. PAGS also submitted the same cancelled third-party registrations for PET-AGREE that the 2019 opinion discussed, Reg. Nos. 1648728, 2193583, and 2395039.

The Board looked at timing and did not turn it into a motive finding. PAGS filed the new application on the same day it moved to dismiss the Federal Circuit appeal. The opinion calls that timing noteworthy. It also says that, without more, the timing does not establish an intent to evade the prior judgment, and that a finding on intent was not necessary. The Board gave no consideration to PAGS's account of what was said at the 2019 oral hearing, because the oral hearing is not part of the evidentiary record. Even if that account were assumed, the opinion says, PAGS could have moved to amend the identification in the first opposition after the hearing.

Why the further amendment failed

The motion the Board denied is a further cut, not the identification already in the application. On December 21, 2023, PAGS moved without consent to limit the services to wholesale supply of pet grooming supplies made by third parties and carrying the third party's brand name. The business-to-business market, the professional purchasers, and the exclusions would have stayed.

The Board found the proposal limiting. It would have covered grooming supplies made by someone other than PAGS and sold under that other party's brand, and it would have left out goods PAGS made or sold under its own mark. PAGS did not consent to judgment on the broader identification. The opinion treats that consent as required when the opposer objects and the applicant wants the narrower wording entered. PAGS had said that if the amendment was not accepted immediately, it should be heard at trial on both versions. That is not consent to judgment against the broader wording.

The Board then assumed, only for argument, that the consent requirement was satisfied, and it still refused the amendment as a way around preclusion. To avoid res judicata, PAGS had to make a prima facie showing that the change altered the nature of the services, or restricted the channels or customers, enough to introduce a substantially different issue for trial. The Board found that showing was not made. In an identification, third party means someone other than the applicant, not someone other than the opposer. As to PAGS, Mars is a third party. The proposed wording could still include wholesale of Mars's PEDIGREE goods. The Board decided the claims on the identification as it stood.

In its trial brief, PAGS asked the Board to approve the amendment if the opposition was sustained. The opinion says that request is procedurally improper. After a final decision sustaining an opposition, the Board lacks authority to amend the identification in order to avoid the judgment. The amendment has to be decided before or with the final decision, not after it.

What this means for a brand owner

If you already won the opposition, read the next application against that judgment before you brief likelihood of confusion again. In this case, the later mark kept the only source-indicating element, and the later services sat inside the identification Mars had already defeated. The Board stopped on claim preclusion. It did not write a new confusion analysis.

If you are the applicant who lost, generic words on the end of the mark, and a narrower slice of the old services, did not create a new case here. A restriction that is meant to avoid preclusion has to do more than sound tighter. On this record the applicant needed a limiting amendment, consent to judgment on the broader identification, and a showing of a substantially different issue. The wording PAGS offered did not make that showing, and it could still reach the opposer's goods.

Cite this opinion for what it is. It is not a precedent of the TTAB. It is not a 2026 finding that PET-AGREE GROOMING SUPPLIES is likely to be confused with PEDIGREE. The confusion finding, as to PET-AGREE, is in the 2019 opinion, which also states that it is not a precedent of the TTAB. What September 16, 2026 decides is claim preclusion between these parties on this application.

What to watch next

The next public fact is procedural. TTABVUE, status date September 16, 2026, says this opposition is awaiting expiration of the appeal period, and Serial No. 88767940 is still listed as opposition pending. That docket does not show a decision from a reviewing court on this opposition. If PAGS appeals, or if the application is later abandoned after the inter partes decision, the docket is where that will appear. Until then, the decision to read is the September 16, 2026 opinion. The 2019 opinion is the judgment that decision treats as final.