Just because your company’s name is on a trademark registration doesn’t always mean you fully control the trademark in the way the USPTO requires. That control—known as unity of control—plays a critical role in avoiding rejections under §2(d) of the Trademark Act.
For businesses with complex ownership structures, multiple subsidiaries, or shared ventures, proving who controls the trademark can make the difference between a smooth registration and a costly refusal.
What Does “Controls the Trademark” Mean?
When we talk about who controls the trademark, we’re really talking about more than just who owns it on paper. The USPTO and the Trademark Trial and Appeal Board (TTAB) look closely at who actually directs the selection, adoption, and use of the trademark.
In simpler terms, they want to know:
- Who decides what the mark looks like?
- Who actively manages and maintains consistent use of the mark?
- Who oversees the quality of goods or services associated with it?
These are fundamental because trademark law’s entire purpose is to prevent consumer confusion. If two related companies are both using similar trademarks, but they’re under the same controlling hand, the law views them as essentially a single source—eliminating confusion.
Unity of Control: The Key Concept
What is Unity of Control?
Unity of control is a legal concept that treats separate companies as one source because one entity effectively controls the trademark-related activities of the other. This is common in situations like:
- A parent company that owns nearly all shares of a subsidiary.
- Related companies with overlapping ownership that direct marketing together.
- Joint ventures where partners actively collaborate on branding.
In these situations, even if there are technically two different companies, if one controls the trademark use and brand strategy, they’re often treated as a single source.
Why It Matters
If unity of control exists, the USPTO is less likely to find that two trademarks (owned by these “different” entities) would confuse consumers. This is essential for avoiding refusals under §2(d), which prohibits registering marks that are likely to be confused with existing ones.
Case Spotlight: In re Wella
The Wella Decision
One of the best illustrations of this concept comes from In re Wella A.G., a landmark TTAB case decided in 1987.
In this case, Wella A.G. applied to register a trademark, but the USPTO flagged a conflict with a similar mark owned by Wella U.S.A. At first glance, it looked like two separate companies held confusingly similar trademarks.
However, Wella A.G. submitted a declaration stating it owned substantially all the stock of Wella U.S.A. and that it directly controlled the trademark activities of the U.S. subsidiary—including selection and use of marks.
The Outcome
The Board found this declaration sufficient to prove unity of control, concluding there was effectively a single source and no likelihood of confusion under §2(d). Without any contradictory evidence, the TTAB accepted this and allowed the application.
Later, the Federal Circuit reversed on unrelated legal grounds, but it did not disturb the finding of unity of control—solidifying this principle in trademark practice.
Lessons for Your Business
If your company owns most or all of another company—and you truly control its trademark activities—you can often overcome §2(d) refusals by submitting a similar declaration.
Not sure if your ownership qualifies? Our attorneys at Keener Legal can review your corporate structure and help craft the right declarations to support your application.
Other Ways to Show Control: Joint Ownership
Joint Ownership Situations
Unity of control isn’t limited to a parent-subsidiary relationship. It can also apply when trademarks are jointly owned. For example:
- If your company is listed in USPTO records as a joint owner of an existing trademark registration.
- Or if the owner of the cited registration is listed as a joint owner on your new application.
In these cases, unity of control may be presumed if you provide a clear statement asserting control over the use of the mark by virtue of that joint ownership.
What You Need to Submit
The USPTO generally expects:
- A written statement or affidavit asserting that you control how the mark is used, due to your joint ownership.
- Confirmation that there is no contradictory evidence (like disputes or competing license agreements).
As long as this is done correctly, the examining attorney can accept it and approve your application without finding a likelihood of confusion.
If you’re filing a trademark that could overlap with a joint owner’s rights, let us prepare the precise affidavits you’ll need. Reach out today for a consultation.
What the USPTO Looks For
Key Considerations
When determining whether unity of control exists, USPTO examiners look for whether the applicant actually controls the trademark, not just on paper, but in real-world operations. They want evidence that the applicant:
- Actively decides how to select and use the mark.
- Oversees the quality control and marketing.
- Can enforce the trademark against third parties.
Most of the time, a properly worded declaration or affidavit is enough—unless someone submits contradictory evidence.
Common Pitfalls
Businesses can run into trouble if they:
- Have unclear ownership records between parent and subsidiary.
- Fail to submit a declaration affirming control.
- Have licensing agreements that contradict a claim of unity of control.
- Are in active disputes with supposed joint owners.
This can result in §2(d) refusals that stall or entirely derail a trademark application.
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Practical Tips for Businesses Filing Trademarks
If your corporate structure involves subsidiaries, holding companies, or joint ventures, keep these practical tips in mind:
If you own or control another entity:
- Be ready to submit an affidavit explicitly stating that you own substantially all of the other entity and control its trademark activities.
If you have joint ownership:
- Maintain detailed records that clearly document how you and your partners make decisions on trademark use, marketing, and quality control.
If you rely on license agreements:
- Make sure they support, rather than undermine, your claim to unity of control.
Always work with experienced counsel:
- Trademark law is technical, and improper filings can cause costly delays or rejections.
Keener Legal regularly prepares declarations of unity of control and counsels clients through tricky ownership issues. Contact us to protect your brand and ensure a smooth registration.
Why Knowing Who Controls the Trademark Matters
Understanding who controls the trademark is more than just a technical requirement—it’s a crucial step in securing your intellectual property and avoiding costly refusals under §2(d). Whether through majority ownership, direct control of a subsidiary, or joint ownership arrangements, proving unity of control can be the deciding factor that moves your trademark application forward.
At Keener Legal, we guide businesses through the nuances of unity of control, from preparing declarations to coordinating USPTO responses.
Ready to strengthen your trademark position?
Reach out to Keener Legal today for strategic, experienced help on all your trademark filings.
