Yes, if buyers come to see it as your brand. A name that describes the product starts out unregistrable on the Principal Register. Once the public links the name to one…

Read the guide →Lawyers call this: du Pont factor 7 · actual confusion

Does it matter whether anyone has actually been confused?

Proof that real buyers were confused matters when it exists. The law does not require it. The test is whether confusion is likely, so a mark can be refused even if no…

Read the guide →Lawyers call this: du Pont factor 8 · concurrent use without actual confusion

Do years of side-by-side use without confusion help?

It can, but less than most owners expect. Years of use with no mix-ups count only if the two marks actually met the same buyers, in the same places, in enough volume…

Read the guide →Lawyers call this: du Pont factor 4 · conditions of sale and buyer sophistication

Does it matter how carefully buyers shop?

It can. Buyers who research, compare and spend real money are less likely to be fooled by similar marks than buyers grabbing something off a shelf. So careful purchasing…

Read the guide →Lawyers call this: du Pont factor 12 · extent of potential confusion

Does it matter whether confusion would be minor or substantial?

In principle, yes. The twelfth factor asks whether any confusion would be trivial or substantial. If only a handful of buyers could ever be confused, that weighs against…

Read the guide →Lawyers call this: du Pont factor 5 · fame of the prior mark

Does a famous mark get more room?

Yes. A famous mark is remembered widely, so buyers are more likely to connect a similar mark to it, even on goods some distance away. The law gives it a broader scope of…

Read the guide →Lawyers call this: du Pont factor 10 · market interface, including consent agreements

Can an agreement between the two owners settle it?

It can, if it is the right kind of agreement. When the owner of the registered mark agrees in writing that your registration will not confuse buyers, and the agreement…

Read the guide →Lawyers call this: du Pont factor 13 · any other established fact probative of the effect of use

What else can the Board consider?

Any proven fact that bears on whether confusion is likely. The thirteenth factor is a catch-all for facts the other twelve do not cover. Two recur: an applicant's own…

Read the guide →Lawyers call this: du Pont factor 2 · relatedness of the goods or services

When are two products or services related?

Two products are related when buyers would expect them to come from the same company. They do not have to compete, look alike, or sit in the same class. Wine and vodka…

Read the guide →Lawyers call this: du Pont factor 11 · the applicant's right to exclude others

Does it matter whether the applicant can stop others from using the mark?

It can, but only with proof. The factor asks how far the applicant's own use has earned it a place in the market, shown by its success in keeping others off its mark. An…

Read the guide →Lawyers call this: du Pont factor 6 · number and nature of similar marks in use

Does it help that similar marks already exist?

It can. When many businesses use similar marks for similar goods, buyers learn to tell them apart by small differences. The shared part is weak, and the earlier mark…

Read the guide →Lawyers call this: du Pont factor 1 · similarity of the marks

How similar do two marks have to be?

Similar enough that a buyer who half-remembers one mark would think the other comes from the same company. The comparison is of whole marks — how they look, sound, and…

Read the guide →Lawyers call this: du Pont factor 3 · trade channels

Does it matter where the products are sold?

Yes, but at the USPTO it is usually decided on paper. The question is where the goods as identified in the application and the registration would normally be sold, not…

Read the guide →Lawyers call this: du Pont factor 9 · variety of goods on which the mark is used

Does it matter how many products the earlier mark is used on?

Sometimes. When the earlier owner uses its mark on a wide range of products, buyers are more likely to see a new, related product under a similar mark as one more item…

Read the guide →Lawyers call this: failure to function · Sections 1, 2 and 45

Will people see my name as a brand at all?

A trademark has one job: to tell buyers who is behind the product. If buyers would read your words or your design as a message, a decoration, or a piece of information…

Read the guide →Lawyers call this: genericness · Sections 1, 2, 3, 14 and 23

Can a name be too common to protect at all?

Yes. If buyers understand a word as the name of the kind of product, rather than the name of one seller's product, it is generic. A generic term cannot be registered on…

Read the guide →Lawyers call this: likelihood of confusion · Section 2(d)

How the USPTO decides whether two trademarks are too close

The USPTO refuses a trademark application under Section 2(d) when your mark, used on your goods, would probably confuse ordinary buyers about who is behind the product…

Read the guide →Lawyers call this: mere descriptiveness · Section 2(e)(1)

What if my name just describes what I sell?

If your name tells buyers what the product is, what it does, or what it is made of, the USPTO will usually refuse to register it on the Principal Register. That refusal…

Read the guide →Lawyers call this: priority · Sections 2(d), 7(c) and 43(a)

Who was first, and why does it matter?

When two confusingly similar marks collide, the one with the earlier rights usually wins. In the United States, rights come from use, not from registration. The general…

Read the guide →

Decisions

When two businesses fight over a name, or the government refuses an application and the business appeals, a review board at the USPTO decides it and writes up why. Those write-ups are public, and they are long and hard to read. We rewrite each one in plain English. None of the summaries has yet been approved by an attorney, and each page says so.

Research significance is our editorial assessment of how useful a decision is for research. Landmark, Notable and Routine do not describe precedential weight. Precedential status is shown separately, and so is whether a decision's own Board docket has been checked for later history.

Browse the decisions

178 of roughly 18,000 TTAB decisions. 158 are ex parte appeals and 20 are inter partes.

How this library is built

Each decision is parsed into a fixed schema. 73 of the 178 summaries were written from the original opinion and 105 from records already extracted into our database; an attorney confirmed the research-significance rating on 62. The extraction rules prohibit filling missing factual fields with guesses, so a fact the decision does not state is left empty. The plain-English summaries and the factor coding are our interpretation, not the Board's words. A passage is presented as a quotation only when the exact words were found in the opinion.

Read the full method →

Who checked this

Drafted with automated assistance. Not yet reviewed by an attorney, and this page says so until it is.