How can I overcome a Section 2(d) refusal of my trademark application?

The most effective strategies for overcoming a Section 2(d) refusal are:

• Arguing the marks are not confusingly similar: address the visual, phonetic, and conceptual differences between the two marks and explain why consumers would not confuse them.
• Arguing the goods and services are sufficiently different: even if the marks are similar, a likelihood of confusion requires that the goods or services be related enough that consumers might assume a common source. Narrowing the goods and services list to avoid the overlapping area may resolve the issue.
• Obtaining a consent agreement: written consent from the owner of the cited mark, confirming both can coexist, is one of the most reliable ways to resolve a Section 2(d) refusal.
• Challenging the weakness of the cited mark: if the cited mark is weak or widely used by third parties in the same class, argument can be made that it cannot support a broad scope of protection.

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