Likelihood of Confusion under Section 2(d)

If you filed a federal trademark application with the USPTO, the examining attorney might issue a letter called an Office Action setting forth reasons why registration is refused. If likelihood of confusion is the reason, then the Office Action will contain a refusal under Section 2(d) which states: “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it

Section 2(d) of the Trademark Act goes “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it consists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive . . . .”

To reduce the risk of a likelihood of confusion rejection, have a knockout search performed of USPTO trademark filings for similar marks. This will give you a helpful indication of whether it makes sense to proceed with applying for your desired mark. If possible, you may want to pivot to a new mark if the knockout search uncovers one or more registrations or prior-pending applications for highly similar marks.