Registration of your applied-for trademark in the U.S. will be refused if it is determined that there is a likelihood of confusion with an earlier mark.
Trademark Act Section 2(d) bars registration of an applied-for mark that so resembles a registered mark that it is likely that a potential consumer would be confused or mistaken or deceived as to the source of the goods and/or services of the applicant and registrant.
The court in In re E. I. du Pont de Nemours & Co. listed the principal factors to be considered when determining whether there is a likelihood of confusion under Section 2(d). However, not all of the factors are necessarily relevant or of equal weight, and any one factor may be dominant in a given case, depending upon the evidence of record.
Usually, you will find that the following factors are the most relevant: similarity of the marks, similarity of the goods and/or services, and similarity of trade channels of the goods and/or services.
Your mark will be compared to the prior mark. If the marks of the respective parties are identical, the relationship between the goods and/or services of the respective parties need not be as close to support a finding of likelihood of confusion as might apply where differences exist between the marks.
Comparison of the Goods and Services
If your goods and services are closely related to the goods and services of the prior mark, the examining attorney will consider this when determining if there is a likelihood of confusion.
The overriding concern is not only to prevent buyer confusion as to the source of the goods and/or services, but to protect the registrant from adverse commercial impact due to use of a similar mark by a newcomer. Therefore, any doubt regarding a likelihood of confusion determination is resolved in favor of the registrant.
If you do not believe there is any potential conflict between your application and the prior mark, you may then present arguments relevant to the issue in a response to the examining attorney. Trademarkroom can help you with this.
For more information on U.S. trademarks, please contact us.