A trademark application is reviewed by a U.S. Patent and Trademark Office (“USPTO”) Trademark Examining Attorney on a variety of grounds, but most notably on whether there is a conflict with a prior-registered mark.  A §2(d) refusal – so named because of the applicable section of the Lanham Act – is a determination that the applied-for mark may not be registered because it “so resembles a mark [previously] registered” that it is “likely to cause confusion, or to cause mistake, or to deceive.”  That decision, however, is based on many subjective factors, including the similarity of the marks in appearance, sound, connotation, and commercial impression, the similarity (or relatedness) of the goods or services under the marks, the similarity of the channels of trade, the strength of the prior-registered mark, and many others.

A recent article by The TTABlog® reported an affirmance rate of approximately 86% for 2026 thus far for §2(d) refusals of trademark applications on appeal to the Trademark Trial and Appeal Board (“TTAB”).  This around 4% lower than the 90% affirmance rate seen last year. If refused, a trademark applicant may appeal to the TTAB, and these most recent statistics suggest around a 14% chance of reversing the §2(d) refusal.

Given the tremendous deference that the TTAB gives to the mostly-subjective opinion of an individual USPTO Examining Attorney in issuing a §2(d) refusal, trademark searching prior to filing a trademark application continues to be extremely valuable, often providing an experienced trademark attorney with valuable information about how best to tailor a trademark application to be more likely to avoid this type of refusal in the first place.

Kelly Malloy is a Registered Patent Attorney and assists with a wide range of Intellectual Property and Franchise matters from the firm’s Miami office. Ms. Malloy’s practice heavily focuses on trademark portfolio management, at the core of which is trademark prosecution. She routinely responds to Office Actions issued by the U.S. Patent and Trademark Office (“USPTO”) against trademark applications, including refusals on the basis of likelihood of confusion under Section 2(d) of the federal Lanham Act. She also assists clients with trademark clearance, trademark applications, foreign trademarks, trademark licensing, and franchising, in addition to patent and copyright matters.