A common roadblock your trademark application may hit is a Section 2(d) likelihood of confusion refusal at the U.S. Patent and Trademark Office (USPTO). This refusal means the USPTO believes your mark is too similar to an existing registration or prior filed application and confusion may occur. One potential solution? Requesting consent from the owner of the cited mark. But is it the right move for your business? Let’s break down the strategic pros and cons and share best practices for making this approach work.

Why Consent Matters for Your Business

A consent agreement may allow your mark to overcome a likelihood of confusion refusal and move to registration, possibly avoid litigation, and rebranding. It’s essentially a negotiated understanding between two businesses that their marks can coexist without confusing customers. The USPTO often gives weight to these agreements, if they’re well-drafted and supported by facts.

Pros for Businesses

1. Keeps Your Brand Strategy on Track
   Avoid the expense and disruption of renaming or rebranding and likely will allow your mark to register at the USPTO.
2. Reduces Legal Risk
   A consent agreement may minimize the chance of future infringement claims from the other trademark owner.
3. Faster Resolution
   Compared to further filings at the USPTO, negotiating consent can be quicker and less expensive.

Cons to Consider

1. No Guaranteed Approval
   The USPTO can reject weak or vague agreements. A “bare-bones” consent letter rarely works. A compliant consent to register agreement is recommended and is often accepted.
2. Negotiation Trade-Offs
   The other party may require limitations (such as restricting your description of goods of services in the application, product line, or geographic reach or reimbursement of the costs of reviewing the agreement) that could impact growth.
3. Relationship Dynamics
   Asking for consent can signal your business plans. If the other party sees you as a competitor, they may refuse or impose tough conditions.
4. Priority Risks and Backlash
   If the other trademark owner has earlier rights and you approach them for consent, it could backfire. They may realize your application conflicts with their interests and decide to oppose your application or even challenge your use of the mark. This is especially risky if your use started after theirs or if your position is weak.

Best Practices for Strong Consent Agreements

• Explain Why Confusion Is Unlikely
  Include details about differences in products, services, customer base, and marketing channels.
• Add Practical Safeguards
  Commit to distinct branding, packaging, or advertising strategies.
• Consider Field-of-Use Restrictions
  If necessary, agree to limit certain goods/services to avoid overlap.
• Show Cooperation
  Include provisions for monitoring and addressing any confusion that might arise.
• Avoid “Naked” Agreements
  A simple “we consent” statement won’t cut it. Substance matters here.

Bottom Line for Business Leaders

Requesting consent can be a smart, cost-effective way to overcome a Section 2(d) likelihood of confusion refusal, but it’s not without risk. If the other party is the senior user (meaning they have earlier rights), approaching them could backfire. Instead of granting consent, they might decide to oppose your application, demand restrictive conditions, or even challenge your use of the mark. Before reaching out, assess your negotiation position and weigh whether consent negotiations could expose vulnerabilities in your brand strategy. In short: consent can open doors, but only if you understand the leverage dynamics and protect your business interests.