Trademarks 101 · Likelihood of confusion
Too close to a registered mark? Arguable.
A likelihood-of-confusion refusal means the examiner thinks buyers might believe your goods and an earlier registrant’s come from the same place. It turns on two main prongs, and both can be argued.
If you read nothing else
- What it means
- The examiner found an earlier mark that’s similar enough, for related-enough goods or services, that buyers could confuse the both of you. It’s codified as Section 2(d) of the Trademark Act.
- The two big questions
- How similar are the marks in look, sound, and meaning? How related are the goods or services, and the way they’re sold?
- What it isn’t
- A finding that you copied anyone, or that you can’t use your name. It’s about registration, and it’s the examiner’s first view, not the last word.
- How long you have
- Three months from the office action, with one three-month extension available (for an additional fee).
Search the federal register
Type your mark and we’ll show you what’s on the federal register close to it: the same search our attorneys start with. Add a class if you know it, and we’ll put those matches first.
Heads up: we’re still setting this search up, so things might be a little wonky for a few days. If a search doesn’t come back or if something seems off, try again in a minute, or have an attorney look now.
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What an examiner weighs
The marks
Compared as a whole, the way a buyer would meet them in the marketplace.
- How they look and sound
- What they mean, and the impression they leave
- How many similar marks are already being used for similar goods
The goods and the market
Related goods matter more than class numbers.
- Whether the goods or services are related
- Whether they’re sold the same way, to the same buyers
- How carefully those buyers shop
What a response can do
Argue that the marks differ
In sight, sound, meaning, or overall impression.
Argue that the goods differ
Different products, buyers, or channels of trade, supported by evidence.
Narrow your goods
Amending your description can sometimes take you out of the earlier mark’s lane.
Deal with the other owner
Seek a consent agreement, or a challenge if their registration isn’t being used.
Read next
Or see every Trademarks 101 sheet.
This sheet is general information, not legal advice for your situation. Talk to us about yours.