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If you receive a liklyhood of confusion refusal to your trademark application, can you tell the examiner that confusion in reality does not exist since the product associated with the mark has been discontinued and is no longer on the market. I'm ...
I agree with the other answers that arguing that confusion doesn't exist because because the product has been discontinued will likely not get you very far. You may be able to argue that the rejection on the merits, i.e., that there is in fact no likelihood of confusion based on one or more of several factors that the Examiner should consider. If the mark is important to you, consult a professional and have them examine the mark and rejection in detail. You likely have more than one option to proceed and a professional can give you guidance.
Please note that this is just my opinion and it is not legal advice.See question