In re Clorox Co.

MARKEY, Chief Judge,

specially concurring.

The foregoing opinion speaks for a unanimous court. These comments reflect a view respecting the underlying rationale for the holding that the citation of marks “registered” on either register is permissible in ex parte examination under § 2(d).

Section 2(d) refers to marks “registered” or “previously used” and to likelihood of confusion. Because the confusion sought to be prevented by the Act is in the marketplace, where marks are used, the underlying basis for reference to marks “registered” is necessarily the presumption that registered marks cited…