The Board dismissed Scently’s SCENTLY challenge after finding earlier use on specific goods unproved

Decision Desk · September 8, 2026 decision · Nonprecedential

The Trademark Trial and Appeal Board (the Board) is the U.S. Patent and Trademark Office panel that decides challenges to trademark registrations and appeals from refused applications. The Board marked this opinion nonprecedential, meaning it does not bind the Board in later cases.

Scentacious, LLC seeks to register SCENTLY for fragrance for household purposes. Scently LLC filed an opposition, a challenge to that request to register the mark. The Board dismissed the opposition. Opinion, pp. 1–2, 32.

Source: the Board’s complete opinion in case 91293506, with page citations below. This report describes the decision; it is not legal advice.

The Board found that Scently had not proved it used its SCENTLY marks on the identified goods before November 21, 2023. It said evidence that a company did business under a mark was not enough without showing which goods carried the mark and when. Opinion, p. 31.

Scently claimed it had used its SCENTLY marks as early as 2021. Scentacious acknowledged that customer confusion between the marks was plausible, while asking the Board to consider visual differences between them. Regarding priority, meaning who used a mark on particular goods first, the Board wrote that “Applicant plainly and repeatedly denied that Opposer has priority”. Scently also claimed that Scentacious had given a false first-use date in its request to register SCENTLY. Opinion, pp. 3, 7, 15–16.

The Board used November 21, 2023, as Scentacious’s earliest date for comparing the parties’ claims of use. Scently’s own applications, requests to register trademarks, did not establish an earlier date: one was filed later, and the earlier one had been refused registration and was no longer pending. Opinion, pp. 13, 15.

Scentacious did not answer Scently’s requests to admit facts, so the Board treated the requested facts as admitted. One admitted fact established sales of scented oils and diffuser refills by December 2021, but did not identify the mark used on those goods. Another admitted fact concerned use of the SCENTLY marks by December 2021, but did not identify the goods involved. Opinion, pp. 5, 16–17.

Scently president Shmuel Palgon said the company first put its mark on goods in July 2021. The Board said that account did not specify the goods or establish that they were sold then. The Board found his account vague and inconsistent. Opinion, pp. 18, 20–21.

A photograph of an early device showed SCENTL, not SCENTLY. The Board said the photograph did not show that the device was offered for sale when it was pictured. The earliest website pages showing offers for Scently’s diffuser and refill scents were from April 2024, after Scentacious’s November 2023 comparison date. Opinion, pp. 23–24, 30.

Because Scently had not proved earlier use, the Board dismissed its claim that buyers might confuse the marks without deciding whether they would. The Board also dismissed the false-date claim because Scently did not argue it in its final written submission. The decision dismissed a challenge to registration; it did not decide which company could use SCENTLY. Opinion, pp. 3, 32.

This report describes the decision as issued; it does not follow any later appeal.

Sources

• The Board’s complete opinion; GleanMark case record.