476 F.2d 1357 (CCPA 1973)
The 1973 case that gave us the thirteen DuPont factors — the framework behind every likelihood-of-confusion refusal. What the factors are, how they are weighed, and how to cite them.
The 30-second version
Every likelihood-of-confusion refusal you will ever answer traces back to a 1973 dispute over car wax. E.I. du Pont wanted to register RALLY for an automobile cleaning and polishing agent; the Office refused it over a prior RALLY registered for an all-purpose detergent.
The marks were identical and the goods were both cleaning products. But DuPont and the other owner had signed a detailed agreement dividing their markets — DuPont to automotive, the other to household and commercial. The Court of Customs and Patent Appeals reversed, and registration issued.
The case is famous not for the wax but for the checklist the court wrote on the way to the result: the thirteen factors that, to this day, structure every §2(d) analysis at the Office and the Board.
E.I. du Pont seeks to register RALLY for an automobile polishing, glazing, and cleaning agent.
The Office refuses over a prior registration of RALLY for an all-purpose detergent.
DuPont and the other owner enter a detailed agreement confining DuPont to automotive products and the other to household and commercial cleaning.
The court reverses and, in doing so, sets out the thirteen factors that govern likelihood of confusion.
A §2(d) refusal can feel like a single yes-or-no question: are these marks confusingly similar? DuPont’s lasting contribution is to show that the question is never that simple. Confusion is a judgment built from many independent facts — the marks, the goods, the buyers, the channels, the history between the parties — and a refusal that fixates on one of them while ignoring the rest is vulnerable.
Prong 1 — the marks
Similarity of the marks and relatedness of the goods are usually the two factors that drive the result.
Prong 2 — the goods
But eleven more can matter: trade channels, conditions of sale, fame, the number of similar marks in use, actual confusion, length of concurrent use, the variety of goods, market interface (including agreements between the parties), and any other probative fact.
The thirteen DuPont factors are not a scorecard. As the court put it, the factors are not listed “in order of merit,” and any one of them “may from case to case play a dominant role.” In DuPont itself, the parties’ agreement was the dominant factor. Your job in a response is to identify which factors actually carry the case in front of you — and put evidence behind them.
These are the two factors that usually decide §2(d), but the governing standard is the full 13-factor DuPont likelihood-of-confusion test — any factor can control on the right record.
The thirteen factors
The court enumerated the factors that, “when of record, must be considered” — from mark similarity and goods relatedness to fame, trade channels, and actual confusion.
Market interface (the agreement)
A detailed agreement in which the owners divided their fields of trade was treated as powerful evidence that confusion was unlikely.
Each case on its own facts
The court stressed that no mechanical rule decides confusion; the relevant factors, and their weight, shift from case to case.
“In testing for likelihood of confusion under Sec. 2(d) … the following, when of record, must be considered … The evidentiary elements are not listed above in order of merit. Each may from case to case play a dominant role.”
The rule to memorize
Likelihood of confusion is a multi-factor judgment, not a single comparison. The thirteen DuPont factors are the master list; only the factors supported by the record matter, and any one of them can control the outcome. Win the factors that count, with evidence — don’t argue all thirteen in the abstract.
Under In re E.I. du Pont de Nemours & Co., 476 F.2d 1357 (CCPA 1973), likelihood of confusion is determined by weighing the relevant factors of record, and any single factor may be dispositive. Here, the [factor] factor is dispositive: [evidence]. The Examining Attorney’s analysis rests almost entirely on [factor] while disregarding [the controlling factor], and should be reconsidered.
DuPont is a framing cite, not a winner by itself. Use it to reset the analysis to the factors that help you, then put record evidence behind the one or two that actually carry your case.
Of 1,740 applications that cited this case against a §2(d) likelihood of confusion refusal, 455 have reached a final outcome — 26.6% registered, below the 37.6% §2(d) baseline (N=10,097).
DuPont is the most-cited §2(d) precedent in this analysis — and applications citing it register below the §2(d) baseline. That is exactly what you would expect: nearly every contested confusion refusal invokes the factors, so the citation marks the presence of a fight, not the strength of a position. The framework is universal; the outcome still rides on your evidence.
These rates are correlational, not causal. Citing a case does not “win” it — a response that cites a precedent often faced a harder, more contested refusal to begin with. Every rate is shown against its refusal-ground baseline and the number of terminal (finally-decided) applications it is based on; pending applications are excluded. This is a descriptive picture of how the profession argues, not legal advice.
ARMOR ALL PRODUCTS CORPORATION · Serial 72307711
The mark from the case — RALLY for a “combination polishing, glazing and cleaning agent for use on automobiles” (Reg. 0972670). DuPont’s application, reversed to registration and later assigned to Armor All.
GEERPRES, INC. · Serial 72052130
The cited registration — RALLY for an all-purpose detergent (Reg. 0675713).
Live USPTO records in GleanMark — click through for full prosecution history.
The thirteen factors have been refined and re-weighted for fifty years, but the core instruction — consider the relevant factors of record, and let the strongest one lead — has never changed. (A 1973 decision of the CCPA still governs because the Federal Circuit adopted all CCPA precedent as binding in South Corp. v. United States, 690 F.2d 1368 (Fed. Cir. 1982).) It is the first thing a trademark associate learns and the last thing an examiner forgets.
What are the DuPont factors?
They are the thirteen factors set out in In re E.I. du Pont de Nemours & Co. (CCPA 1973) for evaluating likelihood of confusion under Section 2(d) — including similarity of the marks, relatedness of the goods, trade channels, conditions of sale, fame, the number of similar marks in use, and actual confusion, among others.
Do all thirteen DuPont factors apply to every case?
No. Only the factors for which there is evidence of record are considered, and the court stressed that any single factor may play a dominant role. Many factors are simply neutral in a given case.
Why is In re du Pont so important?
It established the analytical framework the USPTO and the TTAB still use for every likelihood-of-confusion determination, which is why it is the most-cited precedent in Office Action responses.
Juice Generation, Inc. v. GS Enterprises LLC
Crowded field of weak marks · 22.6% registered
In re i.am.symbolic, llc
Marks compared in their entireties · 32.1% registered
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin
Foreign equivalents & fame · 41.7% registered
Jack Wolfskin Ausrüstung für Draußen GmbH v. New Millennium Sports, S.L.U.
Crowded field; weak design elements · 26.7% registered
Coach Services, Inc. v. Triumph Learning LLC
Fame as a §2(d) factor · 33% registered
In re Gyulay
Mere descriptiveness · 53.6% registered
In re Abcor Development Corp.
Descriptiveness standard · 61.7% registered
In re Viterra Inc.
Similarity; standard-character display · 34.2% registered
In re Thor Tech, Inc.
Goods-relatedness coexistence · 21.4% registered
In re Shell Oil Co.
Relatedness of goods and services · 23.1% registered
In re National Data Corp.
Dominant feature; disclaimed matter · 41.1% registered
In re Detroit Athletic Co.
First-word dominance; similarity · 40.6% registered
Stone Lion Capital Partners, L.P. v. Lion Capital LLP
Least-sophisticated purchaser · 42.9% registered
In re Bayer Aktiengesellschaft
Descriptiveness; internet evidence · 54.2% registered
GleanMark turns the same prosecution data behind this analysis into clearance, coexistence evidence, and a structured Office Action response draft — in minutes.
Start a Free Trial