Understand the USPTO's DuPont Factors
Examining attorneys analyze thirteen DuPont factors, but the most influential are similarity of marks, similarity of goods or services, and trade channels.
Your response should tackle those dominant factors head-on with evidence, not just argumentative statements.
Differentiate the Commercial Impression
Visual, phonetic, and conceptual differences matter. Show how consumers encounter the marks in context, including typography, logos, and taglines.
If a shared descriptive element caused the refusal, offer to disclaim that component so the distinctive portion carries more weight.
- Demonstrate differences in color palettes, logo structure, or pronunciation.
- Highlight additional wording or design elements absent from the cited registration.
Narrow or Clarify Goods and Services
Amending your identification to limit channels, audiences, or product features can persuade the examiner that overlap is unlikely.
Provide declarations showing distinct sales models -- direct-to-consumer versus wholesale, for example.
Consider Coexistence Agreements or Consent
If both parties are open to coexistence, a consent agreement outlining market separation can carry significant weight with the USPTO.
Legal Mark Experts negotiates these agreements and presents them alongside legal arguments to secure approval.