Likelihood of confusion: how the USPTO and courts decide if a copycat's name is too close to yours

They are the thirteen considerations the Court of Customs and Patent Appeals set out in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973), and the Federal Circuit and the USPTO still apply them to every Section 2(d) question: the marks, the goods, trade channels, buyer care, fame, similar marks in use, actual confusion, quiet coexistence, range of goods, the market interface, the right to exclude, the extent of potential confusion, and any other established fact. There is no five-factor version and no scoring: "[a]ny single factor may control a particular case" (Stratus Networks v. UBTA-UBET, 955 F.3d 994, 998 (Fed. Cir. 2020)).

Likelihood of confusion. The USPTO says so on its own page, last updated November 30, 2023: "This is known as a likelihood of confusion, and it's the most common reason for refusing registration." Its published order of the grounds runs likelihood of confusion, then merely descriptive, primarily geographically descriptive, primarily merely a surname, and ornamentation.

It is a refusal to register under 15 U.S.C. 1052(d), because your mark so resembles a mark already registered, or previously used and not abandoned, as to be likely "to cause confusion, or to cause mistake, or to deceive." You get three months from the issue date under 37 CFR 2.62(a)(1), extendable once by three months to a maximum of six from that same date. The extension costs $125 on the USPTO fee schedule effective January 19, 2025.

Three things in most courts, not four. That you own a valid mark. That the other side used a mark in commerce without your consent. And that the use is likely to cause confusion. 15 U.S.C. 1114(1)(a) states the trigger for a registered mark and 1125(a)(1)(A) states it for an unregistered one. The standard is a preponderance of the evidence, meaning more likely than not, in court and at the Board alike (Cunningham v. Laser Golf, 222 F.3d 943 (Fed. Cir. 2000)).

Low, and stable. John Welch's annual hand count at TTABlog puts the Board's affirmance rate on Section 2(d) appeals at 92.5% in 2022, just under 85% in 2023 in his own words, about 89.5% in 2024, and 90% in 2025 across 206 decisions. Those are one practitioner's counts of the decisions he read, not a USPTO statistic. Read them as a reason to spend the effort on the response to the examining attorney rather than the appeal after it.

Yes, routinely, when the goods and the buyers do not overlap. TMEP 1207.01(a)(i) says that if the goods "are not related or marketed in such a way that they would be encountered by the same persons ... then, even if the marks are identical, confusion may not be likely." The Board reversed on that ground alone in In re Part of the Solution, Ser. Nos. 97791804 and 97791806 (Dec. 18, 2025, not precedential), POTS against POTS. PLAYERS for underwear and PLAYERS for shoes coexist as well.

No. TMEP 1207.01(d)(ii) states that "the relevant test is likelihood of confusion, not actual confusion; thus, it is unnecessary to show actual confusion." It helps when you have it, and it is the one exhibit a store owner collects without paying anybody. One founder posting on r/smallbusiness in August 2026: "I got a call from a potential client saying 'I saw your bad reviews' turns out they were looking at the other company's reviews but thought it was us."

Sleekcraft is the Ninth Circuit's eight-factor list from AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979): "strength of the mark; proximity of the goods; similarity of the marks; evidence of actual confusion; marketing channels used; type of goods and the degree of care likely to be exercised by the purchaser; defendant's intent in selecting the mark; and likelihood of expansion of the product lines." Polaroid is the Second Circuit's eight and Lapp is the Third Circuit's ten. The content is largely the same, and venue decides which list applies.

It asks whether the senior brand is likely to expand into the junior user's market, so a nearby category is treated as closer than it looks today. The Second Circuit lists "the likelihood that the prior owner will bridge the gap" among the Polaroid variables in Polaroid v. Polarad Elecs., 287 F.2d 492, 495 (2d Cir. 1961), and Sleekcraft calls the same idea "likelihood of expansion of the product lines."

It is confusion that pulls a shopper in and clears up before they buy. In Brookfield Communications v. West Coast Entertainment, 174 F.3d 1036 (9th Cir. 1999), using another brand's name to divert searchers "improperly benefits from the goodwill" its owner built, and doing it in metatags is "much like posting a sign with another's trademark in front of one's store." It has a hard limit: in Multi Time Machine v. Amazon.com, 804 F.3d 930 (9th Cir. 2015), clear labeling defeated the theory on a search results page.

It is the mirror of the ordinary case. In forward confusion buyers think the copycat is you. In reverse confusion a much larger junior user floods the market until buyers think you are the copycat. The Ninth Circuit defined it in Dreamwerks Prod. Grp. v. SKG Studio, 142 F.3d 1127 (9th Cir. 1998): "[i]n a reverse confusion case, however, we must focus on the strength of the junior user's mark." Ironhawk Techs. v. Dropbox, 2 F.4th 1150 (9th Cir. 2021), reversed a summary judgment over a dissent, so the small brand got its day in court.

They exist, and almost no store owner commissions one. A survey is the professional way to put actual confusion into evidence, and it is expensive enough to belong to a litigation budget rather than a demand letter. Nothing requires one either way: TMEP 1207.01(d)(ii) says it is "unnecessary to show actual confusion" at all. The version you can afford is the confusion that arrives on its own, screenshotted with the date visible.

Yes, once the application publishes. 37 CFR 2.101(c) gives you thirty days after publication, and an opposition costs $600 per class filed electronically or $700 on paper. The ladder in 37 CFR 2.102(c) is exact. A first request is either thirty days free or ninety days for good cause at $200, because "[a] sixty-day extension is not available as a first extension of time to oppose." Take the thirty and you may then request sixty more for good cause. After ninety days, one final sixty-day request at $400, and never past 180 days.

Yes, when they are naming you rather than branding themselves. New Kids on the Block v. News America Publishing, 971 F.2d 302 (9th Cir. 1992), sets three conditions for nominative fair use: the product must be "not readily identifiable without use of the trademark", only "so much of the mark ... as is reasonably necessary" may be used, and nothing may "suggest sponsorship or endorsement" by you. A comparison chart usually clears it. Your logo in their header does not.

Usually yes, if the goods are genuine and the seller is honest about what they are. In Champion Spark Plug v. Sanders, 331 U.S. 125 (1947), reconditioned plugs "though used, are nevertheless Champion plugs and not those of another make", and "[f]ull disclosure gives the manufacturer all the protection to which he is entitled." First sale does not cover materially different goods, and it is not a license to dress their storefront as yours.

Sometimes that wins, and it rarely survives a registration. United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90 (1918), protects a user who adopted the same mark "in good faith, without notice" in a separate trading area. But 15 U.S.C. 1057(c) makes a filing constructive use nationwide from its filing date once the registration issues, so the shield covers only the territory that user already held before that date.

Not this one. A copied shape is trade dress or a design patent, and TMEP 1202.02(b)(i) says product design "is never inherently distinctive", so it protects nothing until it acquires distinctiveness. Wal-Mart v. Samara Bros., 529 U.S. 205, 212 (2000), puts it as "design, like color, is not inherently distinctive." If the copied feature is functional, nothing protects it: TrafFix, 532 U.S. 23, 33 (2001), makes a feature functional as a matter of law where it is "essential to the use or purpose of the product". Stolen photographs are a copyright claim.

It is the First Amendment screen courts apply to marks used inside expressive works, and Jack Daniel's Properties v. VIP Products, 599 U.S. 140 (2023), narrowed it: "[w]hen an alleged infringer uses a trademark as a designation of source for the infringer's own goods, the Rogers test does not apply." A parody sold as a brand runs through the ordinary confusion factors instead, where the joke "may properly figure in assessing the likelihood of confusion."

No, and the words are a trap. The Anticybersquatting Consumer Protection Act and the UDRP both ask whether a domain name is "identical or confusingly similar" to a mark, which is a threshold comparison of the string, decided alongside bad faith and rights or legitimate interests. It is not the du Pont or Sleekcraft weighing described on this page, and a domain can clear one test and fail the other.