Does it matter whether confusion would be minor or substantial?

Applicants often argue that the overlap is tiny: a niche product, a few customers, a small region. The argument has a home in the law, and this is it. But the argument has to be made on the right facts, and most of the facts applicants offer about their actual business do not count in an application.

Knowing why saves money. An argument about how small your business is does not answer a refusal. An argument about how narrow the goods in the application and registration are can.

The twelfth factor in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973), is “the extent of potential confusion, i.e., whether de minimis or substantial.” De minimis means too small to matter.

The goods are judged as written. Where the registration describes goods broadly, with no limit on their type, channels of trade or buyers, the Board presumes the goods cover everything of that type, move in all normal channels, and reach all classes of purchasers. U.S. Pat. & Trademark Off., Trademark Manual of Examining Procedure § 1207.01(a)(iii) (May 2026) [hereinafter TMEP]. Evidence that your real customers are few does not narrow an application or registration that is not narrowed on its face.

The protection runs to the registrant, too. Section 2(d) protects buyers and also the registrant. The Board has said “the overriding concern is not only to prevent buyer confusion as to the source of the goods, but also to protect the registrant from adverse commercial impact due to use of a similar mark by a newcomer.” In re Country Oven, Inc., 2019 U.S.P.Q.2d (BNA) 443903, at *2-3 (T.T.A.B. 2019) (quoted in TMEP § 1207.01). A small newcomer can still cause that harm.

Doubt goes to the registrant. Any doubt about whether confusion is likely must be resolved in favor of the prior registrant. TMEP § 1207.01(d)(i). That leaves little room for a factor that asks the Board to discount confusion because it would be small.

What evidence moves it. Features written into the identifications that confine the goods to a tiny, specialized market. Evidence that the relevant buyers are few and expert, which overlaps with factor 4 on purchasing conditions. In an opposition or cancellation, a full record on the actual market can matter more.

What tends to push it the other way. Identical or overlapping goods. Ordinary consumer products sold in stores and online. Inexpensive goods bought on impulse. Each of these means more people could be confused, more often.

Common mistakes. Arguing the size of your own business instead of the scope of the goods as described. Relying on limits that exist in practice but not in the application. And using this factor to re-argue the other factors. It asks a narrow question: how much confusion, not whether.

3 of the 38 records in this library that code du Pont factors carry a finding on factor 12 (library as of 2026-09-19; a curated collection, not a random sample). All three records come from one dispute: three oppositions decided on the same day, Made in Nature, LLC v. Pharmavite LLC. In each, the factor was coded as favoring the opposer. So the library has one example of this factor at work, not three independent ones.

In Made in Nature, the Board sustained the oppositions and refused registration of NATURE MADE for Class 29 and Class 30 foods and Class 32 beverages. It found NATURE MADE highly similar to MADE IN NATURE, the same words simply transposed. The foods were identical in part, and the beverages were found related. In the Class 30 case, the goods were sold through the same channels to ordinary, impulse-buying grocery shoppers. On factor 12, the Board found the potential confusion substantial, not de minimis.

In that decision, the factor followed the findings on the other factors: close marks, overlapping everyday goods and casual buyers meant many chances for confusion.

Before you argue that confusion would be minor, read the identification of goods in the cited registration and in your own application. If both are broad, this factor will not carry you. If your goods are truly specialized, consider whether the application should say so, and whether the registration is limited too.

Reading the two identifications side by side is something you can do yourself. Deciding whether to narrow your identification, and how, affects the scope of your rights for as long as you own the registration. That is where a lawyer earns the fee.

If you have a refusal and your market is narrow, Valet Law, PLLC can review both identifications and tell you whether an amendment could change the analysis.

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.