Trademark Confusion – Consumer Confusion Section 2(d)


Trademark Confusion – Consumer Confusion Section 2(d)

One of the challenges of acquiring trademark rights is the possibility of a likelihood of confusion with a pre-existing trademark. In the event that a trademark is too similar to an existing trademark registration or pending trademark application, the USPTO examiner will issue an initial refusal of the application under Section 2(d) due to the conflict.  The trademark owner may also send a trademark cease and desist letter.  If you have a trademark infringement issue, we recommend that you hire a trademark lawyer to assist you.

Avoiding Trademark Confusion

Ultimately, the purpose of trademarks is to ensure that a company’s products and services are distinguishable from others in the market so that there is no consumer confusion. 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 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 entirety, such as appearance, connotation, sound and commercial impression.
  • The similarity of the goods or services .
  • The similarity of established trade channels.
  • The number and nature of similar trademarks in use with similar products or services.

While actual consumer confusion is the best evidence of a likelihood of confusion, proof of actual confusion is not required.  It is enough that confusion is likely.

Trademark Litigation

If you have a litigation matter related to a trademark, please see our trademark litigation page.

Contact Us

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

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