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[wzhao6898]

Hi there,

Can I still use the mark even if the application is rejected, citing similar (confusing) mark in the same class?
Thanks,

David

[Kaitlin]

No one would arrest you, if that's your concern, but it wouldn't be a very wise move.  The idea behind having a trademark is to have a mark the public associates with YOUR PRODUCT -- unless you're deliberately trying to take an illegal free ride on someone else's good will.  However great a mark might seem in the abstract, its purpose is to set your goods/services apart. 

If you really think your mark and the cited one are different enough that there will be no confusion problem (and you've already tried making your arguments on this to the examiner, to no avail), you're free to contact the owner of the other mark and see if they agree with you and will consent to your use. 

But if you were to go ahead and use the mark without reaching any agreement with the other mark's owner, you'd not be in any position to claim innocent infringement if that owner decided to sue you. 

[JSonnabend]

You *might* not be in a position to claim innocent infringement.  Kaitlin has overstated that point a bit.

The OP, and anyone else coming across this thread, should keep in mind that obtaining a registration from the Trademark Office never *gives* you the right to use a mark.  It merely registers your use.  Even with a registration, one could still infringe another party's rights by using the registered mark.

With that in mind, the inverse situation is clear: being refused registration does not remove any right to use the mark.

- Jeff

[Kaitlin]

Jeff is right. It could be that the other mark did not actually have the seniority claimed or had other defects in terms of its priority, not to mention that the conflict analysis could be flawed.  What I should have said was that the OP would not be in a position to say he had not turned up the allegedly competing mark (after conducting a reasonable search) and was unaware of the mark's existence.