Section 2(d) Refusals Explained: What “Likelihood of Confusion” Means

A Section 2(d) refusal is one of the most common reasons the USPTO turns down a trademark application. It can feel final, but it is not. It is the examining attorney's opinion that your mark is too close to one already on the register, and it can be answered. This guide explains what the refusal means, how the examiner reaches it, and what a response usually has to address.

What a Section 2(d) refusal means

Section 2(d) of the Trademark Act (15 U.S.C. §1052(d)) bars registration of a mark that so resembles a registered mark that it is likely to cause confusion about who is behind the goods or services. Your Office Action will name the registration (or registrations) the examiner is relying on, often called the "cited mark."

Three points surprise most applicants:

• Actual confusion is not required. The test is whether confusion is likely, so the examiner does not need proof that anyone has been confused.
• The goods are compared as written. The examiner compares the goods and services as they are described in your application and in the cited registration, not how either business actually operates today.
• Close calls favor the registrant. When there is doubt about likelihood of confusion, the USPTO resolves it in favor of the owner of the existing registration.

The DuPont factors: how the examiner decides

Likelihood of confusion is judged with the factors set out in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357 (C.C.P.A. 1973). There are thirteen of them, but not every factor matters in every case. Examiners weigh only those that are relevant to the evidence in the record.

1. How similar the marks are in appearance, sound, meaning and overall commercial impression.
2. How related the goods or services are, as described in the application and registration.
3. Whether the goods move through the same established trade channels.
4. The conditions of purchase: impulse buys versus careful, sophisticated purchasing.
5. The fame of the prior mark.
6. The number and nature of similar marks in use on similar goods.
7. The nature and extent of any actual confusion.
8. How long the marks have been used side by side without actual confusion.
9. The variety of goods the prior mark is used on.
10. The market interface between the two owners, such as a consent agreement.
11. The extent of the applicant's right to exclude others from using its mark.
12. Whether the potential confusion is minor or substantial.
13. Any other established fact that bears on the likely effect of use.

In practice, the first two factors drive most refusals: how similar the marks are, and how related the goods or services are. Most Office Actions spend nearly all their reasoning on those two.

What a strong response usually addresses

A response works when it meets the examiner on the same factors, with evidence, rather than arguing that your brand simply feels different. Depending on the facts, responses commonly do one or more of the following:

• Show the marks differ as a whole. Marks are compared in their entireties. Differences in wording, meaning or overall impression can matter, even when the marks share a term.
• Show the goods or services are not related. This takes evidence about the goods as described, not just an explanation of your business.
• Show the shared element is weak. If many unrelated owners already use similar wording for similar goods, consumers may be used to telling those marks apart.
• Point to sophisticated buyers. Expensive or specialized purchases made with care can make confusion less likely.
• Narrow the identification of goods or services. Amending your description can sometimes move your goods away from the cited registration. Amendments can only narrow, never broaden, what you applied for.
• Obtain the registrant's consent. A detailed consent agreement from the owner of the cited mark is generally given significant weight.

Which of these fit depends entirely on the facts of the specific refusal, the cited registration and the evidence available.

Deadlines you cannot miss

• Standard applications: you have three months from the Office Action's issue date to respond. You can request one three-month extension, which currently carries a $125 USPTO fee.
• Madrid (international) applications: you have six months to respond, with no extension available.
• If you miss the deadline, the USPTO declares the application abandoned.

If the examiner is not persuaded, the next step is usually a final Office Action. You can then file a request for reconsideration, appeal to the Trademark Trial and Appeal Board (currently $225 per class), or both, within the same response period.

You get one good shot

A first response that simply restates your brand story tends to lead to a final refusal. The strongest responses start by working out where the examiner's reasoning is weakest, then build the argument and evidence around those factors. That is exactly what a TRACE™ Report is designed to show before you write a word.

Fees and deadlines are current as of September 2026. Always check the dates and fees in your own Office Action and on uspto.gov.