Is There A Presumption Of Unity Of Control In Trademark Law?

Businesses often operate through multiple related entities—subsidiaries, affiliates, or sister corporations. These companies may share leadership, branding, and even customer bases. But when it comes to trademark law, the U.S. Patent and Trademark Office (USPTO) doesn't always treat them as one.

This raises an important question: is there a presumption of unity of control in trademark law, or must it always be proven?

The answer matters because “unity of control” can determine whether a trademark application survives a refusal under §2(d) of the Lanham Act (likelihood of confusion). If an applicant cannot show that related companies operate as a single source, the USPTO may reject the application. Let's examine what unity of control really means, whether it can be presumed, and how businesses can prove it.

What Does Unity of Control Mean?

Unity of control refers to the situation where two or more related companies function as a single source for trademark purposes. In practice, this means:

• One entity exercises authority over how the mark is used.
• There is centralized oversight of brand management, quality control, and enforcement.
• Customers reasonably perceive the trademarks as coming from the same source.

Why is this important? The USPTO frequently issues §2(d) refusals when it believes consumers might confuse two marks. But if an applicant can show that related entities share unity of control, the USPTO may treat them as one entity—eliminating the confusion concern.

Unity of control typically arises in contexts such as:

• Subsidiaries and parent corporations using related marks.
• Sister corporations under a common parent brand.
• Affiliates marketing goods or services in related industries.

Without proof of unity of control, the USPTO may reject an application even if the businesses are closely connected.

Can There Be a Presumption of Unity of Control?

The natural question is whether the USPTO ever presumes unity of control. After all, if two corporations are wholly owned by the same parent, shouldn't control be obvious?

The answer is no—unity of control is not presumed.

Some relationships may suggest the possibility of unity of control, such as:

• Shared ownership under a parent company.
• Overlapping officers, directors, or stockholders.
• Centralized management structures.

But even in these cases, the applicant must prove how one company controls trademark use for the other. Merely pointing to ownership ties or common executives is not enough. The USPTO wants evidence that demonstrates actual authority over branding, marketing, and enforcement.

This means that applicants must prepare to provide affidavits, contracts, or corporate policies that go beyond surface-level relationships.

When the Record Contradicts Unity of Control

In some cases, the very nature of the business relationship makes unity of control highly unlikely. The USPTO specifically identifies these situations to clarify that no presumption can exist.

Licensor–Licensee Relationships

The clearest example is the licensor–licensee relationship.

• The licensor owns the trademark and grants limited rights to the licensee.
• The licensee may use the mark, but the licensor does not control the licensee's overall operations.

Because the licensor only controls specific use of the mark—not the licensee's business as a whole—there is no unity of control. The two companies remain distinct sources.

This is why licensing agreements are essential in trademark law. They ensure the licensor maintains control over the quality of goods or services associated with the mark, while acknowledging that the licensee operates independently.

Other Contradictory Relationships

Other situations may also contradict unity of control:

• Companies with common investors but no shared operational control.
• Businesses that collaborate through joint ventures but retain independent management.
• Entities that share officers in name but not in function.

In each of these cases, the record itself undermines any assertion that the companies function as a single source.

Evidence Required to Prove Unity of Control

Since unity of control cannot be presumed, the burden is on the applicant to prove it. The USPTO requires specific, detailed evidence, such as:

Affidavits or Declarations

Sworn statements from executives, officers, or controlling parties can carry significant weight. These should explain exactly how trademark use and enforcement are coordinated.

Corporate Documentation

• Ownership charts showing how entities report to a central authority.
• Contracts or agreements demonstrating trademark control.
• Policy manuals outlining how brand standards and quality control are enforced.

Licensing or Management Agreements

If one entity oversees the trademark activities of another, written agreements should reflect that arrangement.

Case Law Guidance

Past decisions illustrate the USPTO's expectations:

• In re Pharmacia Inc. (1987): A common parent alone was not enough; proof of control was required.
• Greyhound Corp. v. Armour Life (1982): The applicant had to show evidence of centralized trademark management.
• Pneutek, Inc. v. Scherr (1981): Shared officers and stockholders did not automatically establish unity of control.

These cases reinforce the principle that unity of control must be proven with evidence—not inferred.

Why the Presumption Question Matters

Understanding that there is no presumption of unity of control is critical for businesses. Here's why:

• Prevents costly delays: Applicants who assume control will be presumed often face office actions and refusals, extending the registration process.
• Protects brand strategy: Without proper documentation, related companies may risk losing trademark rights or facing enforcement challenges.
• Clarifies business relationships: Recognizing that licensing contradicts unity of control helps businesses structure agreements correctly.

By anticipating the USPTO's requirements, companies can avoid wasted time and strengthen their trademark protection.

Best Practices for Applicants

To succeed in proving unity of control, businesses should follow these best practices:

Don't Assume

Never rely on ownership ties, common executives, or family relationships as proof of control.

Collect Evidence Early

Prepare affidavits, organizational charts, and policy documents before filing the application.

Demonstrate Quality Control

Show that one entity oversees brand quality across all related businesses. This aligns with the USPTO's consumer protection concerns.

Use Declarations Strategically

Sworn statements from officers or counsel should explain specific decision-making processes, not just vague claims of oversight.

Work with Experienced IP Counsel

Trademark attorneys can anticipate USPTO objections, prepare tailored evidence, and guide businesses in structuring brand relationships.

Conclusion

So, is there a presumption of unity of control in trademark law? The clear answer is no.

The USPTO does not assume related companies operate as one simply because they share ownership, officers, or business ties. In fact, some relationships—like licensor–licensee—explicitly contradict unity of control. Applicants bear the burden of proof, and success depends on detailed, well-documented evidence of centralized trademark authority.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.