In 2024, What Was The Rate of TTAB Affirmance of Section 2(d) Refusals to Register?

The TTABlogger has once again taken a stab at estimating the percentage of Section 2(d) likelihood-of-confusion refusals that were affirmed by the Board in the past calendar year. I counted 228 decisions, of which 204 were affirmances and 24 were reversals. That's an affirmance rate of about 89.5%.

Only one of the opinions was designated precedential: an affirmance regarding the mark UPC for computer display panels, where the Board found confusion likely with the identical mark registered for charging cables and power connectors. [TTABlogged here]. Applicant Samsung argued that "something more" is necessary to prove relatedness than evidence that some monitor and television manufacturers also sell power cables. The Board, however, pointed out that the "something more" doctrine is limited to cases "where goods are used in the rendering of services and the relatedness of the goods and services is not evident, well known, or generally recognized."

Set out immediately below is a bar chart showing the somewhat sinusoidal history of Section 2(d) appeals. Given the way the cards are stacked against the applicant, it's not surprising that the percentage tends to stay near 90%. The "heavy weight" given the first DuPont factor when the involved marks are identical or nearly so, the lowering of the standard for the first factor when the goods or services are identical, the presumptions regarding channels of trade and classes of consumers, the frequent discarding of third-party registration and use evidence, the "least sophisticated purchaser" test, and the registrant's benefit-of-the-doubt often frustrate these appeals.

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Text Copyright John L. Welch 2025.