Also known as:s. 2(d) · sec. 2(d) · section 2(d) consideration · consideration · definition of consideration
Written by attorneys · grounded in primary & secondary sources — see below
A provision of the Lanham Act that bars registration of a mark likely to cause confusion with an existing registered mark.
Sources & Authorities· 40 primary sources
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Cases
Statutes
How it applies
Common Examples
6
Deed Transfer Triggers Mark Review
Sydney Santos transfers her mortgaged warehouse to the lender via deed in lieu to avoid foreclosure. She then applies to register a mark for storage services that closely resembles a senior mark already on the register for similar services. The examiner denies registration under section 2(d) because the marks create a likelihood of confusion among consumers of storage services.
State of Union Address Prompts Filing
Stephen Shaw hears the president recommend new trademark legislation during the State of the Union address. He immediately files an application for a mark that is identical to a famous senior mark used on related goods. The PTO refuses registration under section 2(d) because the marks are likely to cause confusion.
Settlement Offer Reveals Conflicting Marks
Simone Sanders offers to settle a contract dispute by accepting a payment and assigning her trademark rights. During negotiations she learns her proposed mark for consulting services is identical to a prior registered mark. The PTO later denies her application under section 2(d) on the ground of likely confusion.
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Test Yourself
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Practice Questions5
Federal Rules
Uniform Acts
Model Codes
Common Law
Gratuitous Advice Leads to Mark Conflict
Sebastian Santos gratuitously advises a friend on branding for a new product line. He later files his own application for a mark that is confusingly similar to the friend's already-registered mark for the same goods. The examiner refuses registration under section 2(d) because of the likelihood of consumer confusion.
Punitive Award Highlights Mark Similarity
Stella Shapiro wins a large punitive damages award against a competitor for willful trademark infringement. She then applies to register a mark that is nearly identical to the one already registered by the competitor for the same services. The PTO denies the application under section 2(d) on confusion grounds.
Marital Agreement Includes Mark Rights
Sabrina Shah and her spouse sign a marital property agreement allocating rights in a family business mark. She later seeks to register a mark that is confusingly similar to one already registered by a third party for identical goods. The PTO refuses registration under section 2(d) because the marks are likely to cause confusion.
Common questions
Frequently Asked
3
What does section 2(d) prohibit in trademark applications?+
Section 2(d) prohibits registration of a mark that so resembles a previously registered mark as to be likely to cause confusion, mistake, or deception when used on the applicant's goods or services.
Supporting sources
Does section 2(d) apply only to identical goods?+
No. Section 2(d) applies whenever the marks and the goods or services are sufficiently related that consumers are likely to be confused about source or affiliation.
Supporting sources
Can the PTO refuse registration under section 2(d) even if the applicant acts in good faith?+
Yes. The inquiry focuses on likelihood of confusion from the perspective of consumers, not the applicant's intent.
Supporting sources
ContractsFormation of contracts · Consideration (bargained-for exchange)NEXTGENFoundational