Section 2(d) of the Trademark Act prohibits the registration of a mark that so resembles another's registered trademark that there would be a likelihood of confusion. 15 U.S.C. § 1052(d); In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). A consent agreement between the parties who own the respective marks is analyzed under the tenth DuPont factor, which examines the nature and extent of any interaction or relationship between the parties in the market. DuPont, 476 F.2d at 1361. 

Consent agreements are evidence that “may or may not tip the scales in favor of registrability, depending upon the entirety of the evidence.” In re Mastic Inc., 829 F.2d 1114, 1117 (Fed. Cir. 1987). “[D]epending on the circumstances,” consent agreements “may … carry great weight” since the parties to the agreement are in a “better position to know the real life situation than bureaucrats or judges.” Bongrain Int'l (Am.) Corp. v. Delice de France, Inc., 811 F.2d 1479, 1484-85 (Fed. Cir. 1987). “However, ‘there is no per se rule that a consent, whatever its terms, will always tip the balance to finding no likelihood of confusion, and it therefore follows that the content of each agreement must be examined.'” In re Ye Mystic Krewe, 2025 TTAB LEXIS 412, at *13 (quoting In re Bay State Brewing Co., No. 85826258, 2016 TTAB LEXIS 46, at *16 (TTAB 2016)). 

The probative value of a consent agreement requires consideration of several nonexclusive and non-exhaustive factors:

1. Whether the consent shows an agreement between both parties;
2. Whether the agreement includes a clear indication that the goods and/or services travel in separate trade channels;
3. Whether the parties agree to restrict their fields of use;
4. 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
5. Whether the marks have been used for a period of time without evidence of actual confusion. 

See In re Four Seasons Hotels Ltd., 987 F.2d 1565, 1567 (Fed. Cir. 1993); In re Mastic Inc., 829 F.2d at 1117-18; In re Ye Mystic Krewe, 2025 TTAB LEXIS 412, at *14-15; In re Dare Foods Inc., No. 88758625, 2022 TTAB LEXIS 92, at *14 (TTAB 2022).

This is “to determine if the consent reflects the reality of no likelihood of confusion in the marketplace, or if the parties struck a bargain that may be beneficial to their own interests, regardless of confusion to the public.” In re Mastic Inc., 829 F.2d at 1116-17.

The TTAB recently affirmed that a half-page agreement constituted naked consent that had little impact on the likelihood of confusion analysis involving applications filed by Legend IP Holdings Production, LLC to register the mark GODZILLA X KONG: THE NEW EMPIRE for various goods and services finding confusion likely with certain GODZILLA or GODZILLA-formative marks, registered by Toho Co., Ltd., for various goods and services. In re Legend IP Holdings Production, LLC, Ser. Nos. 97914992 et al. (TTAB Aug. 13, 2026). 

The full text of the half-page agreement:

TOHO CO., LTD and its affiliates (collectively, “[Registrant]”), is the owner of certain intellectual property rights in the Gojira character (a/k/a Godzilla) that has appeared in motion pictures produced by Toho, including a number of GODZILLA-formative trademarks which are the subject of trademark registrations in the United States and numerous countries throughout the world (collectively, the “[Registrant's IP]).

[Registrant] hereby confirms that Legendary Pictures Productions, LLC (“Legendary”) is a licensee of [Registrant] and that [Applicant] enjoys the right to develop, produce and exploit live-action motion pictures based upon the [Registrant's IP] pursuant to and as set forth in a Motion Picture License Agreement entered into by and between [Registrant] and Legendary (the “Agreement”). 

In accordance with the rights granted under the Agreement, [Applicant] produced the motion picture entitled “Godzilla x Kong: The New Empire” (the “Picture”), and Legendary's affiliate Legend IP Holdings Production, LLC (“[Applicant]”) is seeking to register various trademarks comprising the title of the Picture (collectively, the “Trademarks”). [Registrant] hereby confirms that, pursuant to the Agreement, [Applicant] is authorized to seek registration of the Trademarks incorporating [Registrant's IP] in connection with the exploitation of the Picture. For the sake of clarity, pursuant to the Agreement, [Registrant] shall retain ownership of the Godzilla character and the [Registrant's IP], and Legendary and Applicant shall hold the Trademarks in trust for [Registrant].

A thin consent might be viable where the parties were related and the goods under both marks were manufactured and sold by the applicant. See In re Wacker Neuson SE, No. 79060553, 2010 TTAB LEXIS 440, at *26 (TTAB 2010). But the agreement still needs to contain "marketplace details and safeguards that demonstrate a reasoned assessment that confusion is unlikely." 

While there is no per se rule that a short agreement will fail, its brevity suggests, at best, a general agreement between the parties, not a detailed one. “[T]he more information that is in the consent agreement as to why the parties believe confusion to be unlikely, and the more evidentiary support for such conclusions in the facts of record or in the way of undertakings by the parties, the more we can assume that the consent is based on a reasoned assessment of the marketplace, and consequently the more weight the consent will be accorded.” In re Donnay Int'l, SA, No. 74160268, 1994 TTAB LEXIS 21, at *9 (TTAB 1994).

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[W]e find that the Agreement entered into here by Applicant and Registrant is a “naked” consent. There are simply no undertakings of record between Applicant and Registrant which impact the likelihood of confusion analysis. This Agreement is too bare and conclusory for us to conclude that the marks can coexist without a likelihood of confusion.

***

     In short, the Agreement appears to simply to be an arrangement between the parties solely as to registration with no regard to whether it reflects the realities of no likelihood of confusion if and when both marks are concurrently used in the marketplace. While we give some weight to the existence of the Agreement and its express authorization by Applicant “to seek registration of the Trademarks incorporating [Registrant's IP] in connection with the exploitation of the Picture,” we find that the Agreement as a whole suffers multiple failings such that this factor “weighs only slightly against a conclusion of likely confusion.” In re Ye Mystic Krewe, 2025 TTAB LEXIS 412, at *26-27.

Noting that the marks are highly similar due to the shared term GODZILLA, the TTAB concluded that confusion is likely notwithstanding the agreement which was "of limited probative value."