Is another trademark too close to mine?

Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d), bars registration of a mark that so resembles a registered mark as to be likely to cause confusion, mistake, or deception.

The framework is the du Pont factors, from In re E.I. du Pont de Nemours & Co., 476 F.2d 1357 (C.C.P.A. 1973) — thirteen considerations. Thirteen sounds worse than it is: only the factors of significance to the particular mark need be considered, and they are weighed rather than counted. See In re Mighty Leaf Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010). The Board decides on the factors for which there is evidence in the record; silence on a factor is not a finding.

One point decides how you read everything else. In an ex parte refusal, the scope of the goods and services is set by the identifications in the application and the cited registration. Where a registration is unrestricted, the cited owner’s narrower real-world business generally does not narrow it, and showing what they actually sell will not defeat the refusal on its own. See U.S. Pat. & Trademark Off., Trademark Manual of Examining Procedure § 1207.01(a)(iii) (May 2026) [hereinafter TMEP].

Two decisions in this library, rewritten in plain English from the Board’s opinion.

TIME TRAVELER BLONDE was refused for beer despite a detailed consent agreement with the owner of the registered TIME TRAVELER. The agreement required house marks, different trade dress and other precautions, but it still allowed the two marks to be used in overlapping territory, and the application itself did not carry the geographic and use restrictions the parties had agreed. The Board found the agreement insufficient on those facts.

HOUSEBOAT BLOB was refused for inflatable water-launch pads partly because of the registered THE BLOB for giant inflatable floating air bags, with the goods and the trade channels overlapping.

The guide takes all thirteen factors, shows how many records in this library carry a finding on each one, and which way the first two cut.

If you are holding a refusal, start with the goods and services as they are written — yours and the cited registration’s — and then read the examining attorney’s relatedness evidence. The third-party registrations and website printouts are the case that your goods and theirs come from one source, and they are often thinner than they look. Narrowing your own identification is one of the standard ways out; arguing that the registrant’s real business is smaller than its registration generally is not.

What the other party actually sells still matters, but to a different question. It bears on infringement and on commercial risk. It does not rewrite the scope of an unrestricted registration in an ex parte appeal.

One close mark on clearly unrelated goods is a call you can often make yourself from this page. A close mark on the same or overlapping goods, or a refusal already in hand, is where an attorney’s read pays for itself.

If that is where you are, Valet Law, PLLC can review both marks and both lists of goods and tell you what the comparison turns on.

Attorney review is provided by Valet Law, PLLC, a law firm separate from Trademark Valet, LLC. Keep confidential facts out of public tools. Your first message to Valet Law should identify the parties and the general issue only. Wait until Valet Law confirms it can discuss the matter before sending confidential details.

• How do I check if a name is trademarked?
• Can I use a name that’s already trademarked?
• What does a 2(d) Office Action mean?