In 2025, What Was The Rate of TTAB Affirmance of Section 2(d) Refusals to Register?

The TTABlogger once again has 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 206 decisions, of which 186 were affirmances and 20 were reversals. That's an affirmance rate of 90%. Two of the decisions (discussed briefly below) were deemed precedential.

Set out immediately below is a bar chart showing the history of Section 2(d) appeals over the last dozen or so years. Given the way the Section 2(d) 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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The two precedential rulings were the following:

In In re Jimenez, 2025 USPQ2d 1355 (TTAB 2025) [precedential] (Opinion by Judge Angela Lykos) [TTABlogged here], the Board reversed a refusal to register the mark GASPER ROOFING [ROOFING disclaimed], finding confusion unlikely with the registered mark JASPER CONTRACTORS [CONTRACTORS disclaimed], both for roofing services. The Board rejected the examining attorney’s argument that GASPER and JASPER might be pronounced the same: “Because neither GASPER or JASPER is a coined term, case law . . . does not require us to find that these two terms may be pronounced in an identical manner.” The evidence established that “Gasper” is a surname that begins with the letter strings “G-a-s” and “G-a-s-p,” each of which forms the words “gas” and “gasp,” recognized in U.S. English, and pronounced with a hard letter “g” sound. The dictionary entry for “jasper” further showed that it is pronounced with the soft letter “j.” Moreover, the evidence supported a finding that “roofing service purchases may involve multiple steps and may be complex. As a result, even the least sophisticated consumer is likely to exercise an elevated level of care.” The Board concluded that “the dissimilarity of the marks in sound, appearance, meaning and commercial impression is sufficiently great that, coupled with an elevated level of purchaser care, [it] outweighs the identical nature of the services, trade channels and classes of consumers.”

In In re Ye Mystic Krewe of Gasparilla, 2025 USPQ2d 1291 (TTAB 2025) [precedential] (Opinion by Judge Elizabeth K. Brock). [TTABlogged here]. Consent agreements “may carry great weight” in the Section 2(d) analysis, but not this time. The Board affirmed a refusal to register the mark GASPARILLA, finding confusion likely with the registered mark GASPARILLA TREASURES, both for beverageware and clothing. Applicant contested only one of the DuPont factors, maintaining that, under the 10th factor, its consent agreement with the cited registrant sufficed to fend off the refusal. Not so, said the Board. Consent agreements play a significant role in the DuPont analysis, since the parties to the agreement are in a “better position to know the real life situation than bureaucrats or judges.” Here, the involved marks are “highly similar” and the goods overlapping. There was “no indication that the goods will travel in separate trade channels, nor any agreement that the parties will sell in separate trade channels or otherwise restrict their fields of use.” Furthermore, the Consent Agreement contains no provision regarding display of the marks. The marks would have been in concurrent use for only about one year at the time the Consent Agreement was executed. The Board concluded that “the Consent Agreement simply does not rise to the level of one of the 'more detailed agreements' to be given 'substantial' weight."

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Text Copyright John L. Welch 2026.