likelihood of confusion

A statutory basis for refusing registration of a trademark or service mark because it is likely to conflict with a mark or marks already registered or pending before the USPTO. After an application is filed, the assigned examining attorney will search the USPTO records to determine if such a conflict exists between the mark in the application and another mark that is registered or pending before the USPTO.

The principal factors considered by the examining attorney in determining whether there is a likelihood of confusion are:

  1. the similarity of the marks; and
  2. the commercial relationship between the goods and/or services listed in the application.

To find a conflict, the marks do not have to be identical, and the goods and/or services do not have to be the same. It may be enough that the marks are similar and the goods and/or services related. If a conflict exists between your mark and a registered mark, the examining attorney will refuse registration on the ground of likelihood of confusion.

If a conflict exists between your mark and a mark in a pending application that was filed before your application, the examining attorney will notify you of the potential conflict and possibly suspend action on your application. If the earlier-filed application registers, the Examining Attorney will refuse registration of your mark on the ground of likelihood of confusion.

The most effective method of preventing a refusal for a confusingly similar mark is to do a comprehensive search prior to filing and have an experienced attorney review the search results to make a determination as to whether the desired mark should be pursued or not.