"I understand why you're confused. I'm confused."

InPrecisely fourth Friday = precisely 400 words

USPTO employs over 10,000 patent and trademark examiners. Honorable, albeit thankless job guarding the progress of arts and sciences.

Patent examiners engage in metaphysics as we've explained. Fun times.

Trademark examiners also cosplay.

Like patent examiners, a trademark examiner’s first job is searching for precise duplicates.

Patent examiner finds your identical invention prior to your application = application rejected for “anticipation”.

“Your invention, however original to you sir, has been anticipated. Please step aside…”

Trademark examiner finds disclosure of your identical trademark for your identical goods and services prior to your trademark application – the result is similar – rejection.

Precise “dead ringers” are less frequent than uncovering multiple close references.

Patent examiners take close references and engage in Patent Section 103 analysis of “non-obviousness”. Non-obvious to whom? Non-obvious to a fully-informed Ms. PHOSITA as of the date of filing. Examiners divine the truth.

Trademark examiners take close references and engage in Trademark Section 2(d) analysis whether the applicant’s trademark use is “likely…to cause confusion .. with those previously used marks”. Examiners divine the truth.

Trademark examiners are ideally shoppers. Shoppers with sociology degrees.

What is likely confusion?

Will the applicant’s mark, as endorsed by a government registration, cause appreciable confusion with one or more of the discovered prior uses, whether or not those uses might be registered as trademarks.

Confusion matters.

Children know trademarks. Symbols of food. Symbols of fun.

Teens know trademarks. Teens understand co-branding – even that licenses and money drive co-branding.

Young adults know trademarks. They travel the country, and then the world. “Wait a minute. We have a Coyote Café back home. This looks different…”

Mature adults know trademarks. Oneopheliac devotion to wine is full understanding of trademark law in a glass – brands and genera and geographies and licensing and their delicate interplay.

Old adults know trademarks. Wheaties are still on the shelf.

Trademark examiners get to pretend to be consumers of whatever the applicant is offering.

Not just one consumer – all those consumers.

All those consumers – fully exposed as all those consumers are to the consuming world. Even those consumers in our midst who speak scarf-wearing languages like French.

The DOGE-shuttered Denver USPTO outpost had sample scarves for examiners to channel empathy for French-influenced consumers.

Then the trademark examiner makes a decision for all of us – our confusion ombudsman – whether society can tolerate the applicant’s marginal contribution to our commercial stew.

Thanks for looking out for us.