In October 2025, the Trademark Trial and Appeal Board (“Board”) issued a precedential opinion that offers lessons on the limits of consent agreements in overcoming likelihood of confusion (section 2(d)) refusals. The case centers on the efforts of Ye Mystic Krewe of Gasparilla (YMKG), a Tampa-based nonprofit, to register the mark GASPARILLA for drinkware and apparel in Internation Classes 21 and 25 (Serial No. 90522364).[1]
The Examining Attorney refused registration on the basis of likelihood of confusion with the registered mark GASPARILLA TREASURES (Reg. No. 4606073), owned by EventFest, Inc. in connection with various goods including beverage glassware and apparel. EventFest, also based in Tampa, manages the city’s Gasparilla events. Both parties are involved in the production of the annual Gasparilla Pirate Festival.
On appeal, YMKG submitted a Consent Agreement, in which EventFest agreed not to oppose YMKG’s registration and acknowledged no likelihood of confusion. The Board treated this as a request for remand and the Examining Attorney found the agreement to be “naked consent.”[2] Naked consent agreements are “agreements that contain little more than a prior registrant’s consent to registration of an applied-for mark and possibly a mere statement that source confusion is believed to be unlikely.[3]
The Board’s analysis focused on the DuPont[4] factors for likelihood of confusion. The goods at issue were found to be identical or legally identical, and the Board presumed they traveled through the same trade channels to the same consumers. The marks themselves were highly similar, with both featuring the descriptive term “Gasparilla,” a reference to both a Florida barrier island and the city’s pirate festival.[5]
The heart of the case lies in the Board’s treatment of the consent agreement. The agreement contained three main provisions: (1) EventFest consents to YMKG’s registration and use of the GASPARILLA mark; (2) both parties acknowledge that there has not been, is not, and likely will not be, any likelihood of consumer confusion; and (3) if actual confusion arises, the parties agree to notify each other and take “commercially reasonable steps” to address and prevent future confusion.[6]
The Board evaluated the agreement under the tenth DuPont factor – the market interface between Applicant and Registrant. In In re Four Seasons Hotels Ltd.,[7] the Federal Circuit provided a list of non-exclusive factors to evaluate in considering the probative value of a consent agreement:
- Whether the consent shows an agreement between both parties;
- Whether the agreement includes a clear indication that the goods and/or services travel in separate trade channels;
- Whether the parties agree to restrict their fields of use;
- Whether the parties will make efforts to prevent confusion, and cooperate and take steps to avoid any confusion that may arise in the future; and
- Whether the marks have been used for a period of time without evidence of actual confusion.
Here, the Board found the agreement lacking in respect to the above factors. For example, the agreement did not specify that the parties’ respective goods would travel in separate trade channels or that their fields of use would be restricted. In addition, the agreement contained no concrete arrangements described for avoiding confusion, such as distinctive branding or marketing limitations. The agreement also did not establish a significant period of coexistence without confusion – at most, the parties had used their marks concurrently in connection with drinkware and apparel for a year only. Finally, the parties’ promise to take “commercially reasonable steps” in the event of confusion was seen as nominal and lacking in detail, and the Board characterized this as a “naked consent.” Such agreements are given little weight, especially when the marks and goods are highly similar and there are no other mitigating factors.[8]
Consent agreements can be a useful tool for legal practitioners when navigating a trademark filing when a likelihood of confusion refusal is anticipated for a related mark. This decision underscores that consent agreements must be detailed, explaining why confusion is unlikely and outlining concrete steps that the parties took to avoid it. Further, when dealing with identical or highly similar marks and identical goods, it is crucial to work with counsel for both Applicant and Registrant to create robust agreements. Therefore, when protecting your brand, it is best not to cut corners or rely on overly vague terms in any document.
[1] In re Ye Mystic Krewe of Gasparilla, 2025 TTAB LEXIS 412; 2025 U.S.P.Q.2D (BNA) 1291, at *1.
[2] Id. at *4.
[3] Trademark Manual of Examining Procedure (TMEP) § 1207.01(d)(viii) (Revised Nov. 2025).
[4] In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973).
[5] In re Ye Mystic Krewe of Gasparilla, 2025 TTAB LEXIS 412; 2025 U.S.P.Q.2D (BNA) 1291, at *9-13.
[6] Id. at *17.
[7] 987 F.2d 1565, 1567 (Fed. Cir. 1993).
[8] In re Ye Mystic Krewe of Gasparilla, 2025 TTAB LEXIS 412; 2025 U.S.P.Q.2D (BNA) 1291, at *18-24.
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