Answer
What does a 2(d) Office Action mean?
Lawyers call this: Section 2(d) refusal · 15 U.S.C. § 1052(d)
Short answer
An examining attorney at the USPTO has refused registration because they believe your name is close enough to one already registered that buyers could mix the two up. That is a refusal under Section 2(d) of the Trademark Act, and it is the examiner’s opening position, not the last word. Most pre-registration Office Actions give you three months to respond, with a one-time three-month extension available for a fee; Section 66(a) Madrid applications generally get six months with no extension, and some other actions run to different periods. Your Office Action states the deadline that applies to you. The response usually turns on the marks, the goods or services, and the evidence the examining attorney used to connect them.
What changes the answer
- How the names actually sound, look and read
- Not how they line up in a table. A design element can carry enough weight to separate two marks that share a word.
- Whether buyers would expect both products from one company
- Identical names can both register when the goods sit far enough apart.
- Who the buyer is and how carefully they buy
- Careful, expensive purchasing can weigh against confusion. Routine or inexpensive purchasing can weigh the other way.
- How crowded the field is
- Evidence that similar marks are already used for related goods can narrow the practical scope of the cited mark.
- Side-by-side use without confusion
- It can matter, but only if the record shows there was a real opportunity for confusion. A bare statement that nobody complained usually carries little weight.
The rule
Section 2(d) bars registration of a mark that so resembles a mark already registered that it is likely to cause confusion. The Board decides it under the du Pont factors - a list of thirteen considerations from In re E.I. du Pont de Nemours & Co., 476 F.2d 1357 (C.C.P.A. 1973).
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). Two are the usual starting point: how similar the marks are, and how related the goods or services are.
What the Board has done
Three rulings that show the range, each rewritten in plain English from the Board’s opinion.
Even though the marks are identical, TERRAIN for towable RV trailers may register over TERRAIN for trucks because the two kinds of vehicles are fundamentally different…
GUILD MORTGAGE COMPANY was found too similar to the registered GUILD INVESTMENT MANAGEMENT for related financial services, and more than forty years of side-by-side use…
The REDNECK RACEGIRL logo may register over RACEGIRL for overlapping clothing because the design’s giant checkerboard double-R dominates the mark and makes the wording hard…
Even though the marks are identical, TERRAIN for towable RV trailers may register over TERRAIN for trucks because the two kinds of vehicles are fundamentally different…
Read the plain summary →In re Thor Tech, Inc. · 2015No later change on its docketRefusal upheldGUILD MORTGAGE COMPANY was found too similar to the registered GUILD INVESTMENT MANAGEMENT for related financial services, and more than forty years of side-by-side use…
Read the plain summary →In re Guild Mortgage Company · 2020No later change on its docketRefusal reversedThe REDNECK RACEGIRL logo may register over RACEGIRL for overlapping clothing because the design’s giant checkerboard double-R dominates the mark and makes the wording hard…
Read the plain summary →In re Covalinski · 2014No later change on its docketGo deeper
This answer is the short version. The guide walks the whole doctrine, with the corpus evidence underneath it.
What to do next
Use the Office Action pathway. It identifies the refusal, shows the relevant research, and gives you the available next steps.
A 2(d) refusal is rarely just paperwork. Sometimes a narrower description of your goods or services resolves it. Otherwise it is won or lost on evidence and argument.
If you want an attorney’s read before you respond, Valet Law, PLLC reviews Office Actions and gives you a written strategy memo and a call.
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.
Who checked this
Reviewed and approved by Brandon Leavitt on 2026-10-02.
General information about how trademark law works. It is not legal advice about your situation, and reading it does not make anyone your lawyer.