The Trademark Trial and Appeal Board (TTAB) recently issued a precedential decision reminding trademark applicants that a consent agreement between parties is not a magic wand for overcoming likelihood-of-confusion refusals. In In re Ye Mystic Krewe of Gasparilla, Serial No. 90522364, the TTAB affirmed a refusal to register the mark Gasparilla for certain goods despite the applicant’s agreement with an existing trademark owner. The decision was issued on October 14, 2025, by the U.S. Trademark Trial and Appeal Board.
The applicant, Ye Mystic Krewe of Gasparilla, sought to register the mark “Gasparilla” for various merchandise items, including cups, mugs, hats, and shirts. The application ran into trouble because EventFest Inc. already owns the registered mark GASPARILLA TREASURES which is used on similar merchandise. Both entities operate in the Tampa, Florida area and are associated with the Gasparilla Pirate Festival, an annual event celebrating local lore about the pirate José Gaspar. A USPTO examining attorney refused registration, finding that the applied-for mark was likely to cause confusion with the registered mark. The applicant appealed the refusal.
On appeal, the central issue was whether consumers would likely confuse “Gasparilla” with “Gasparilla Treasures.” The TTAB evaluated the familiar likelihood-of-confusion factors, focusing primarily on the similarity of the marks, the similarity of the goods, and the channels of trade.
The Board found these factors strongly favored confusion. Duh. The marks are very similar, since both prominently feature the distinctive term “Gasparilla.” Second, the goods overlapped directly. The applicant’s mugs, hats, and shirts were considered identical or legally identical to goods sold under the registered mark. Because the goods were identical in part, the TTAB presumed they would travel through the same channels of trade and be marketed to the same classes of consumers.
To overcome the refusal, the parties submitted a consent agreement in which EventFest agreed not to oppose or challenge the registration. However, the TTAB found the agreement insufficient. The examining attorney characterized it as “naked consent,” meaning it simply stated that the parties believed confusion would not occur without explaining why that belief was reasonable.
The Board agreed with that assessment. The agreement did not describe steps the parties would take to avoid confusion, such as restricting product categories, separating sales channels, or distinguishing branding. Nor did it explain how consumers would differentiate the marks in the marketplace. In fact, the agreement was extremely brief, with its substantive terms contained on a single page.
Importantly, the TTAB emphasized that there is no per se rule that a consent agreement will automatically overcome a likelihood-of-confusion refusal. Instead, the Board must examine the substance of the agreement and determine whether it meaningfully addresses marketplace realities.
Because the goods overlapped, the marks were highly similar, and the consent agreement lacked meaningful safeguards, the TTAB affirmed the refusal for the overlapping merchandise.
However, the applicant did receive a partial win. The Board allowed the application to proceed for other goods—such as jewelry, buttons, and embroidery items—because those products did not conflict with the goods sold under GASPARILLA TREASURES.
In a nutshell (seashell?) it's not enough that two parties agree to peacefully coexists, to get both trademarks to register they'll have to show the trademark office what they're going to do to avoid consumer confusion. And, if you've ever talked to people, you know how easily confused they can be.
On the other hand, if the parties can agree to coexist, there isn't necessarily much reason to go before the board and register the junior mark. They could have just entered into a private agreement and not involved the trademark board.
