714.05(d) Submission of Consent Agreement or Assertion of Unity of Control in Response to §2(d) Refusal
Consent Agreement. If an applicant files a consent agreement in response to a nonfinal refusal under §2(d) of the Trademark Act, and the examining attorney finds the consent agreement insufficient to overcome the refusal, the examining attorney should issue a final refusal, assuming the application is otherwise in condition for final refusal.
If an applicant files an executed consent agreement for the first time in response to a final refusal under §2(d) of the Trademark Act, no appeal has been filed, and the examining attorney finds the consent agreement insufficient to overcome the refusal, the examining attorney should issue a new final refusal, i.e., an "Examiner’s Subsequent Final Refusal," with a six-month response clause. However, the examining attorney should not issue a subsequent final refusal if the applicant merely states that it is negotiating a consent agreement.
Assertion of Unity of Control. If an applicant asserts unity of control (see TMEP §1201.07) in response to a nonfinal refusal under §2(d), and the examining attorney determines that unity of control has not been established, the examining attorney should issue a final refusal, assuming that the application is otherwise in condition for final refusal.
If an applicant asserts unity of control for the first time in response to a final refusal under §2(d), no appeal has been filed, and the examining attorney determines that unity of control has not been established, the examining attorney should issue an "Examiner’s Subsequent Final Refusal," with a six-month response clause.
See TMEP §715.04(b) regarding the proper action when a request for consideration presents a new issue or new evidence and a notice of appeal has been filed.