United States Court of Appeals 

for the Federal Circuit ______________________ 

IN RE: VOX POPULI REGISTRY LTD.,

Appellant

______________________ 

2021-1496

______________________ 

Appeal from the United States Patent and Trademark 

Office, Trademark Trial and Appeal Board in No. 

87187215.

______________________ 

Decided: February 2, 2022

______________________ 

ROBERT M. O'CONNELL, JR., Orrick, Herrington & Sutcliffe LLP, Boston, MA, argued for appellant. Also represented by R. DAVID HOSP. 

 CHRISTINA J. HIEBER, Office of the Solicitor, United 

States Patent and Trademark Office, Alexandria, VA, argued for appellee Andrew Hirshfeld. Also represented by 

THOMAS L. CASAGRANDE, CLAUDIA GARCIA, THOMAS W.

KRAUSE, FARHEENA YASMEEN RASHEED. 

 ______________________ 

Before LOURIE, DYK, and STOLL, Circuit Judges.

DYK, Circuit Judge.

Vox Populi Registry Ltd. (“Vox”) appeals a final decision of the Trademark Trial and Appeal Board (“Board”) 

affirming the United States Patent and Trademark Office’s

Case: 21-1496 Document: 30 Page: 1 Filed: 02/02/2022
2 IN RE: VOX POPULI REGISTRY LTD. 

(“USPTO”) refusal of U.S. Trademark Application Serial 

No. 87/187,215 (“the ’215 application”) for

(“the stylized form of .SUCKS”). We affirm.

BACKGROUND

Vox is the domain registry operator for the .SUCKS generic top-level domain (“gTLD”) for Internet websites. A 

registry operator “maintains the master database of all domain names registered in each top-level domain, and also 

generates the ‘zone file,’ which allows computers to route 

Internet traffic to and from top-level domains anywhere in 

the world.” Trademark Manual of Examining Procedure 

(TMEP) § 1215.02(d) (8th ed. July 2021); see generally

ICANN Acronyms and Terms, Internet Corporation for Assigned Names and Numbers, 

https://www.icann.org/en/icann-acronyms-and-terms/registry-operator-en (last visited Dec. 20, 2021). 

Vox filed two trademark applications relevant to this 

case. U.S. Trademark Application Serial No. 86/700,941 

(“the ’941 application”) sought registration on the Principal 

Register of the standard character mark .SUCKS in Class 

42 (computer and scientific services) for “[d]omain registry 

operator services related to the gTLD in the mark” and in 

Class 45 (personal and legal services) for “[d]omain name 

registration services featuring the gTLD in the mark” as 

well as “registration of domain names for identification of 

users on a global computer network featuring the gTLD in 

the mark.”1 J.A. 1–2. 

1 The United States follows the international trademark classifications established by the Committee of Experts of the Nice Union and set forth in the International 

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IN RE: VOX POPULI REGISTRY LTD. 3

The ’215 application sought to register the stylized 

form of .SUCKS in Class 42 for “domain registry operator 

services related to the gTLD in the mark.” J.A. 2.

The examining attorney refused both trademark applications “on the ground that, when used in connection with 

the identified services, each fails to function as a mark.” 

J.A. 2. With respect to the ’215 application, the examining 

attorney determined that Vox’s “submitted evidence does 

not establish that the mark functions as a source identifier.” J.A. 347. Vox appealed these refusals to the Board.

In affirming the refusal of the ’941 application, the 

Board concluded that the standard character mark

.SUCKS “will not be perceived as a source identifier” and 

instead “will be perceived merely as one of many gTLDs 

that are used in domain names.” J.A. 21. Turning to the 

’215 application, the Board incorporated the reasoning 

with respect to the ’941 application, finding “[f]or the reasons given, supra, and based on the record before us, we do 

not find the literal element of this mark, .SUCKS, would 

be perceived as source-identifying.” J.A. 22. The Board 

further concluded that “the stylized lettering or design element in the mark does not create a separate commercial 

impression and is not sufficiently distinctive to ‘carry’ the 

overall mark into registrability.” J.A. 26. 

Vox appeals the Board’s decision only with respect to 

the ’215 application involving the stylized form of .SUCKS, 

which appears as a “‘retro,’ pixelated font that resembles 

how letters were displayed on early LED screens.” Vox 

Opening Br. at 2. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(4)(B).

Classification of Goods and Services for the Purposes of the 

Registration of Marks published annually by the World Intellectual Property Organization. TMEP §§ 1401.02(a)–(b).

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4 IN RE: VOX POPULI REGISTRY LTD. 

DISCUSSION

I 

Under the Lanham Act, “[n]o [service mark] by which 

the [services] of the applicant may be distinguished from 

the [services] of others shall be refused registration on the 

principal register on account of its nature” subject to certain exceptions. 15 U.S.C. §§ 1052–53. One of these exceptions is that a service mark must function to “identify and 

distinguish the services of one person . . . from the services 

of others and to indicate the source of the services.” 

15 U.S.C. § 1127. A mark that is, for example, generic or 

descriptive, fails to function as a source identifier, though 

descriptive marks can be registered if they have acquired 

secondary meaning in the perception of consumers, see Two 

Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769 (1992); 

see also U.S. Pat. & Trademark Office v. Booking.com B.V., 

591 U.S. ___, 140 S. Ct. 2298, 2305–07 (2020) (rejecting per 

se rule that “generic.com” names are generic in favor of inquiry based on whether consumers perceive name as generic).

The question whether a proposed mark is a source 

identifier typically arises before us in the context of 

whether the proposed mark is descriptive under 15 U.S.C. 

§ 1052(e). E.g., Brooklyn Brewery Corp. v. Brooklyn Brew 

Shop, 17 F.4th 129 (Fed. Cir. 2021); In re Stereotaxis, Inc., 

429 F.3d 1039 (Fed. Cir. 2005). Our predecessor court recognized that the source identifier and descriptiveness inquiries are “complementary and opposite sides of the same 

coin to the extent that a mark . . . is ‘merely descriptive’ of 

the goods.” In re Cooper, 254 F.2d 611, 613 (CCPA 1958). 

However, though our court has had limited occasion to address the issue, the source identifier requirement is 

broader than just whether a proposed mark is generic or

descriptive. See, e.g., In re Light, 662 F. App’x 929, 934–35

(Fed. Cir. 2016) (affirming Board’s decision that a proposed 

mark failed to function as a source identifier where it 

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IN RE: VOX POPULI REGISTRY LTD. 5

contained over 570 words arranged in column format identifying titles and characters from a story and thus merely 

conveyed information); see also Qualitex Co. v. Jacobson 

Prods. Co., Inc., 514 U.S. 159, 162–63 (1995) (color never 

identifies source except upon a showing of secondary meaning).

The Board’s cases provide helpful additional detail on 

source identifiers. In analyzing whether a proposed mark 

functions as a source identifier, the Board focuses on consumer perception. See, e.g., In re AC Webconnecting Holding B.V., 2020 U.S.P.Q.2d (BL) 11048, 2020 BL 350997, at 

*3 (T.T.A.B. 2020). See generally 1 McCarthy on Trademarks and Unfair Competition § 3.4 (5th ed.). The Board 

looks to “the [Applicant’s] specimens and other evidence of 

record showing how the designation is actually used in the 

marketplace” to determine “how the designation would be 

perceived by the relevant public.” In re Eagle Crest Inc., 96 

U.S.P.Q.2d (BL) 1227, 1229 (T.T.A.B. 2010). The Board 

has determined that certain categories of applications fail 

to function as a source identifier, such as matter that 

“merely convey[s] general information about the goods or 

services or an informational message.” TMEP § 1202.04; 

see, e.g., D.C. One Wholesaler, Inc. v. Chien, 120 U.S.P.Q.2d

(BL) 1710, 1716 (T.T.A.B. 2016) (refusing “I ♥ DC” for bags, 

clothing, and plush toys because “the nature of the phrase 

will be perceived as informational” and “the ubiquity of the 

phrase . . . on apparel and other souvenirs of many makers 

has given it a significance as an expression of enthusiasm”). 

II

Vox does not appeal the rejection of the standard character mark .SUCKS in the ’941 application. Nonetheless, 

Vox spends much of its opening brief arguing that “even if 

. . . we disregard the distinctive design elements in the 

[stylized form of .SUCKS], . . . the evidence of record establishes that the mark still functions as a service mark and 

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6 IN RE: VOX POPULI REGISTRY LTD. 

is entitled to registration.” Vox Opening Br. at 15. To the 

extent that the Board’s factual findings with respect to the 

standard character mark .SUCKS are at issue, we review 

them for substantial evidence. In re Cordua Rests., Inc., 

823 F.3d 594, 599 (Fed. Cir. 2016). Substantial evidence 

“means only[] ‘such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.’” Biestek 

v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “[T]he possibility of drawing two inconsistent conclusions from the 

evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966). We 

conclude that the Board did not err in finding the standard 

character mark not registrable, and we need not reach the 

question whether Vox’s claim with respect to the standard 

character mark is barred by the doctrine of administrative 

preclusion.2

Substantial evidence supports the Board’s finding that 

“consumers will view [the standard character mark 

.SUCKS] as only a non-source identifying part of a domain 

2 Agency adjudications at the USPTO are entitled to 

res judicata and collateral estoppel effect. B&B Hardware, 

Inc. v. Hargis Indus., Inc., 575 U.S. 138, 160 (2015). This 

case does not involve traditional concepts of res judicata or 

collateral estoppel since the proceeding is ex parte and not 

adjudicatory. The doctrine of administrative preclusion, 

similar to res judicata, may preclude repetitive applications in some circumstances. See generally In re Barratt’s 

Appeal, 14 App. D.C. 255, 255–57 (D.C. Cir. 1899); Overland Motor Co. v. Packard Motor Car Co., 274 U.S. 417, 421 

(1927); In re Hitchings, 342 F.2d 80, 85 (CCPA 1965); In re 

Craig, 411 F.2d 1333, 1336 (CCPA 1969); In re Bose Corp., 

476 F.3d 1331, 1334, 1337 (Fed. Cir. 2007); 4 Chisum on 

Pats. § 11.03[5][b].

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IN RE: VOX POPULI REGISTRY LTD. 7

name, rather than as a mark.” J.A. 21. Specimens from 

Vox’s website use .SUCKS to refer to a product (domain 

names ending in .SUCKS), J.A. 38–43, for example, advertising the “exceptional value” in “Registry Premium 

names” like “life.sucks and divorce.sucks,” J.A. 42. Online 

articles discussing Vox and domain names similarly use 

.SUCKS to refer to a product rather than as an identifiable 

provider of services. J.A. 82–94, 96–101. Third-party domain name registrars (a subset of Vox’s customers) also use 

.SUCKS to refer to a product being sold to the public rather 

than as an identifier for Vox’s services. J.A. 64–81.

Vox relies on a declaration by its COO stating that Vox 

“has spent substantial sums in the advertising and promotion of its services under the .SUCKS brand (irrespective 

of design format),” J.A. 134, and referencing sample advertising and marketing materials using the stylized form of 

.SUCKS in the context of trade shows, J.A. 135–38. The 

declaration states that “[a]s evidence of its successful 

branding, [Vox] has experienced double-digit growth in domain registrations year-over-year since the domain debuted in 2015.” J.A. 135. Advertising and sales volumes, 

while relevant, are not by themselves dispositive of how 

consumers perceive a mark. See Am. Footwear Corp. v. 

Gen. Footwear Co. Ltd., 609 F.2d 655, 663 (2d Cir. 1979); 

In re Kwik Lok Corp., 217 U.S.P.Q. 1245, 1248 (T.T.A.B. 

1983). The Board found that “[a]lthough this type of evidence helps show [Vox’s] intention to present the [stylized 

form of .SUCKS] in manners that are customary for service 

marks, this does not mean that consumers will perceive it 

as such,” and additionally determined that “the evidence 

showing that consumers will perceive .SUCKS as merely a 

gTLD outweighs [Vox’s] attempts to depict it as a source 

identifier.” J.A. 25. 

The record also contains declarations by two of Vox’s 

domain name registrar customers testifying that they perceive .SUCKS as a service mark. J.A. 140–41. The Board 

found this evidence “probative,” even though “these 

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8 IN RE: VOX POPULI REGISTRY LTD. 

declarants may be more knowledgeable than the average 

consumer seeking to register a domain name.” J.A. 16. Vox 

argues on appeal that the Board should have afforded the 

declarations more weight because the declarants comprised 50% of the relevant actual consumers (registrars) for 

Vox’s domain name registry services at the time of the declaration. Vox’s own statements, to the Board and on its 

website, view the class of relevant consumers more 

broadly: Vox noted that, as a domain name registry, it 

“work[s] with registrars to sell domain names to the public,” J.A. 374 n.4, and its website appears to target the general public for the sale of domain names, J.A. 38 (“dotSucks 

domains are exclusively available through our accredited 

Registrars. Below you will find a list of them all.”).

We cannot conclude that the Board’s weighing of the 

evidence was unreasonable. Where the Board has reasonably weighed the evidence, it is not the role of this court to 

reweigh evidence to reach a different conclusion, and we do 

not do so here.

III

The sole remaining question then is whether the stylized design makes the stylized form of .SUCKS registrable. 

Design or stylization may make an otherwise unregistrable mark registrable if the features “create an impression on the purchasers separate and apart from the 

impression made by the words themselves.” Cordua, 823 

F.3d at 606 (quoting In re Sadoru Grp., Ltd., 105 

U.S.P.Q.2d (BL) 1484, 1486 (T.T.A.B. 2012)). This evaluation is “necessarily a subjective matter which must be determined based on a viewer’s first impression.” Sadoru, 

105 U.S.P.Q.2d (BL) at 1486; see, e.g., In re Clutter Control 

Inc., 231 U.S.P.Q. (BL) 588, 589 (T.T.A.B. 1986) (finding

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IN RE: VOX POPULI REGISTRY LTD. 9

created a “striking commercial impression” due to the 

“tubelike rendition of the letter ‘C’ in the words”); In re 

Jackson Hole Ski Corp., 190 U.S.P.Q. (BL) 175, 176

(T.T.A.B. 1976) (finding

created a separate impression due to the initial letters’ sizing and positioning). In contrast, this court has rejected a 

proposed mark where the form of the lettering was insufficiently distinctive. See In re Northland Aluminum Prods., 

Inc., 777 F.2d 1556, 1560–61 (Fed. Cir. 1985) (finding 

unregistrable for ring cake mix). In Sadoru, the Board similarly rejected 

(a stylized version of the Japanese word for “saddle”) as a 

proposed mark for motorcycle parts and accessories, noting 

that the proposed mark appeared to be “more in the nature 

of slightly stylized block lettering” than Japanese calligraphy and that “although the tops of the letters ‘dip’ to give 

the upper portion of the mark a slightly concave shape, the 

depression is so minimal that it is not likely to make a significant impression on consumers.” Sadoru, 105 

U.S.P.Q.2d (BL) at 1489. 

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10 IN RE: VOX POPULI REGISTRY LTD. 

We see no error in the Board’s determination that the 

stylized form of .SUCKS fails to create a separate commercial impression. The Board noted that in the stylized form 

of .SUCKS, “[a]ll of the characters in the applicant’s mark 

are the same height and width and are merely displayed in 

a font style that was once mandated by the technological 

limitations of computer screens.” J.A. 23–24 (quoting examiner). Vox cites to In re Serial Podcast, LLC, 126 

U.S.P.Q.2d (BL) 1061 (T.T.A.B. 2018), to support its argument that “even fonts with limited stylization render the 

marks distinctive,” Vox Opening Br. at 11, but that is an 

inaccurate characterization of the case. In Serial, the 

Board found that the wording, lettering, coloring, and geometric background components of

were not inherently distinctive and that “even viewed all 

together” were “on the less distinctive part of the spectrum.” 126 U.S.P.Q.2d at 1075. The Board nonetheless 

found that the stylized marks had acquired distinctiveness 

for a podcast in a serialized format and were therefore registrable. Id. at 1078. 

Vox cites to declarations from its customers “testifying 

that they perceive .SUCKS – on its own, regardless of stylization – as a service mark of [Vox].” Vox Opening Br. at 

24 (emphasis in original). These declarations are unpersuasive because as Vox itself acknowledged in its briefing, 

the declarations are made without regard to the stylization

of the stylized form of .SUCKS and do not mention the stylization at all, which is the relevant inquiry here. See also

Oral Arg. at 7:27–31. In light of the absence of contrary 

evidence, the Board reasonably concluded that “given the 

ubiquity of the design in the ‘early days’ of computing, 

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IN RE: VOX POPULI REGISTRY LTD. 11

consumers would view pixelated lettering as ordinary” rather than as a source identifier. J.A. 25.3

CONCLUSION

The Board’s decision affirming the refusal of the ’215 

application is affirmed.

AFFIRMED

3 To be sure, because we are not dealing with a generic mark, acquired distinctiveness may make the stylized form of .SUCKS registrable “if it can be shown by 

evidence that the particular display which the applicant 

has adopted has acquired distinctiveness.” Cordua, 823 

F.3d at 606 (quoting Sadoru, 105 U.S.P.Q.2d (BL) at 1486). 

There is no claim or evidence of acquired distinctiveness in 

this case. J.A. 26. 

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