Introduction: Is the Absence of Actual Confusion Enough?

One of the most common arguments raised in TTAB proceedings is deceptively simple: if two trademarks have coexisted in the marketplace for years without evidence of actual consumer confusion, shouldn’t that weigh heavily against a likelihood of confusion finding?

At first glance, the argument seems persuasive. After all, trademark law is designed to prevent consumer confusion. If consumers are not confused despite concurrent use, many business owners assume that should end the inquiry. However, TTAB practice reveals a much more nuanced reality.

The Trademark Trial and Appeal Board frequently considers evidence of concurrent marketplace use without confusion, but it rarely treats such evidence as dispositive. Instead, the Board evaluates the quality, context, and significance of the evidence within the broader framework of the DuPont factors.

For trademark owners involved in oppositions or cancellations, understanding how the TTAB approaches this issue can be critical to building an effective litigation strategy.

Understanding Concurrent Marketplace Use

Concurrent marketplace use occurs when two parties operate under similar trademarks for a period of time without documented instances of consumer confusion. In TTAB proceedings, applicants often present this coexistence as evidence that consumers can distinguish between the marks despite their similarities.

The argument typically follows a straightforward logic. If both businesses have sold products or provided services in overlapping markets for years and no evidence of confusion exists, then consumers appear capable of differentiating between them.

While the Board recognizes this reasoning, it does not automatically accept the conclusion. The TTAB’s analysis focuses not merely on the absence of confusion but on whether there has been a meaningful opportunity for confusion to occur.

Why the Absence of Confusion Is Not Always Persuasive

One of the most important principles in TTAB jurisprudence is that absence of evidence is not necessarily evidence of absence.

The Board routinely points out that actual confusion is notoriously difficult to prove. Many confused consumers never report their confusion. Others may simply move on without contacting either company. As a result, the lack of documented confusion does not automatically establish that confusion is unlikely.

Moreover, TTAB proceedings often involve trademark applications rather than fully developed marketplace disputes. The Board’s role is preventive. It seeks to determine whether confusion is likely to occur if both parties continue using their marks, not merely whether confusion has already been documented.

Because of this forward-looking approach, the Board frequently gives greater weight to the potential for confusion than to the absence of reported incidents.

The Importance of Meaningful Market Exposure

Not all coexistence evidence carries the same weight. The TTAB carefully evaluates whether the parties have had sufficient market exposure to create a genuine opportunity for confusion.

For example, if two businesses have operated for several years but serve different geographic regions, different customer groups, or different channels of trade, the absence of confusion may have limited evidentiary value. The Board may conclude that consumers have simply not encountered both marks under circumstances likely to generate confusion.

On the other hand, when substantial evidence shows extensive overlapping sales, nationwide advertising, significant consumer exposure, and prolonged coexistence, the absence of confusion may become more persuasive.

The key question is whether consumers realistically had opportunities to encounter both marks in a way that would reveal confusion if confusion were likely to occur.

Sales Volume and Market Presence Matter

The TTAB frequently examines the scale of marketplace activity when evaluating coexistence arguments.

A party claiming years of coexistence without confusion may need to demonstrate meaningful sales figures, customer interactions, marketing expenditures, website traffic, or other evidence showing substantial marketplace exposure.

A small number of sales or limited regional activity may not create enough opportunities for confusion to arise. Consequently, the Board may discount the significance of the coexistence evidence.

By contrast, extensive commercial activity over a significant period can strengthen an argument that consumers have successfully distinguished between the marks.

This distinction highlights why evidence quality often matters more than simply claiming a long period of coexistence.

How Concurrent Use Fits Within the DuPont Factors

The absence of actual confusion typically falls within one of the DuPont factors addressing evidence of actual confusion and the length of concurrent use without confusion.

However, the TTAB rarely evaluates this factor in isolation. Even compelling coexistence evidence must be weighed against other relevant factors.

For example, highly similar marks used on closely related goods may still result in a likelihood of confusion finding despite years of coexistence. Likewise, evidence of overlapping trade channels, similar consumers, and strong trademark rights may outweigh the significance of an absence of confusion.

The Board’s analysis remains holistic. No single factor controls the outcome.

Common Mistakes When Presenting Coexistence Evidence

Many parties weaken their arguments by relying on conclusory statements rather than concrete evidence.

Simply asserting that no confusion has occurred is often insufficient. The TTAB generally expects objective support, including testimony, sales records, marketing data, customer communications, and evidence demonstrating the extent of marketplace exposure.

Another common mistake involves failing to establish overlapping markets. If the parties cannot show meaningful opportunities for confusion, the absence of confusion becomes far less compelling.

Successful coexistence arguments are built on facts rather than assumptions.

Strategic Considerations for Trademark Owners

For trademark applicants, evidence of concurrent marketplace use can be a valuable tool when properly developed. However, it should rarely serve as the sole defense against a likelihood of confusion claim.

The strongest cases combine coexistence evidence with other favorable factors, such as differences in commercial impression, distinct channels of trade, sophisticated consumers, or weaknesses in the opposer’s mark.

For opposers, it is important to challenge whether meaningful opportunities for confusion have actually existed. Demonstrating limited market overlap or insufficient exposure can significantly reduce the impact of coexistence arguments.

Ultimately, both sides must recognize that the Board evaluates coexistence through a practical and evidence driven lens.

The Growing Relevance of Concurrent Use in the Digital Marketplace

Modern commerce has made coexistence evidence increasingly complex. Businesses now compete across websites, social media platforms, online marketplaces, and digital advertising networks.

As consumer exposure expands, opportunities for confusion also increase. The TTAB increasingly encounters disputes where both parties maintain national or even global online visibility.

In these situations, arguments based on prolonged coexistence without confusion may receive greater scrutiny. The Board often expects stronger evidence when businesses operate in highly visible digital environments.

This trend underscores the importance of maintaining comprehensive records of marketing efforts, sales activity, and consumer interactions.

Conclusion: Coexistence Does Not Automatically Mean No Confusion

The TTAB recognizes that concurrent marketplace use without confusion can provide relevant evidence in trademark disputes. However, the Board rarely treats such evidence as conclusive.

Instead, the analysis focuses on whether there has been a meaningful opportunity for confusion to occur and whether the surrounding facts support the conclusion that consumers can successfully distinguish between the marks.

For trademark owners, this distinction is crucial. A lengthy period of coexistence may strengthen a case, but it must be supported by credible evidence and considered alongside the broader DuPont framework.

Your brand is everything. Protecting it requires more than assumptions about marketplace coexistence. Whether pursuing or defending a TTAB proceeding, a thoughtful strategy grounded in evidence can significantly improve your position before the Board.

Let’s simplify this IP process together and help ensure your trademark rights remain protected for years to come.