Likelihood of Consumer Confusion under the DuPont Factors


One of the challenges of registering a trademark or service mark with the U.S. Patent and Trademark Office (USPTO) is the possibility of a likelihood of confusion with a pre-existing trademark. In the event that an applicant’s trademark is too similar to an existing or pending trademark, the USPTO examiner will issue an initial refusal of the application due to the conflict.

Avoiding Consumer Confusion

Ultimately, the purpose of trademarks is to ensure that a company’s products and services are distinguishable from others in the market. In order to increase your chances of creating a strong, recognizable brand, the best trademark is one that is completely unique. Not only will a unique trademark help you gain brand recognition, but it also affords more legal protections to the trademark owner.

What are the DuPont Factors?

When the USPTO examining attorney determines whether an applicant’s trademark is too similar to other registered or pending trademarks, he or she will evaluate the trademark according to the DuPont factors. These factors were established by the Court of Customs and Patent Appeals in In re E.I. du Pont de Nemours & Co. 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973). These factors include the following:

  • The similarity of the trademarks in their entireties, such as appearance, connotation, sound and commercial impression.
  • The similarity of the goods or services as described in a registration or pending application.
  • Similarity of established trade channels.
  • The number and nature of similar marks in use with similar products or services.

It is important to note that the examiner does not need proof that consumers will confuse or mistake similar trademarks, but simply that there is enough likelihood that the confusion may arise.

Call Mandour & Associates, APC

If you are concerned about the possibility of a likelihood of confusion regarding your chosen trademark, please feel free to contact us to determine the best course of action.


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