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The Prior Registration Puzzle: Overcoming Registration Refusals Based on Intervening Third-Party Marks

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Many trademark attorneys practicing for an appreciable length of time have encountered the following scenario:

  1. Your client owns a registration for a mark (the “Anchor Registration”);
  2. Your client refrained from opposing registration of a similar third-party mark (the “Intervening Mark”) because it saw a low likelihood of confusion;
  3. Your client’s subsequently filed applications in the Trademark Office for the mark depicted in the Anchor Registration (or a virtually identical mark) were refused registration based on the Intervening Mark; and
  4. Attempts to obtain consent from, or coexist with, the Intervening Mark owner were unsuccessful for some reason.

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