When you own a trademark, part of the rights you enjoy is preventing anyone else from using trademarks visually similar enough to cause confusion among consumers. Conversely, if you're seeking a trademark, you'll need to ensure it's not similar enough to any other trademarks to create confusion.
With a Trademark Consent Agreement, a trademark holder agrees to allow the registration of a trademark similar to their own without objection. Suppose a trademark application is rejected on the grounds of similarity with another mark. In that case, the applicant may seek a Trademark Consent Agreement with the trademark holder to receive permission to use a similar mark.
A Trademark Consent Agreement is a legally-binding document between two trademark owners affirming that the trademarks in question are not similar enough to confuse and, therefore, coexist. Typically, a Trademark Consent Agreement is started by a trademark applicant whose trademark application is rejected due to similarity to another registered or pending trademark.
Trademark Consent Agreements are entered into by two trademark owners. If a trademark is confusingly similar to more than one other registered mark, the applicant will have to enter into a Trademark Consent Agreement with each owner of the respective trademarks.
Once signed, the agreement gives both parties the right to use the trademarks in question for marketing purposes.
Depending on your state, a Trademark Consent Agreement may also be known as:
Trademark Coexistence Agreement
Trademark Similarity Agreement
Distinctive Trademark Agreement to Coexist
Consent to Register Agreement
Trademark Rights Consent Form
Trademark Consent Agreements are mostly used by trademark seekers who face a rejected trademark application. If your trademark application is rejected for being confusingly similar to an existing trademark, asking that trademark's owner to enter into a Trademark Consent Agreement can help you resolve the issue.
Any enterprise seeking to use a trademark in good faith, and is granted a trademark that might be confusingly similar to another, could seek a Trademark Consent Agreement proactively. Entering into a Trademark Consent Agreement is a way to eliminate potential objections to your trademark from the owner of another mark similar to yours even if granted the right to use it.
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To create your document, please provide:
Effective Date: The date when the agreement goes into effect.
Registered Trademark Owner: The full name and address of the person who owns the registered trademark in question, granting consent to the unregistered trademark owner.
Unregistered Trademark Owner: The full name and address of the person who owns the unregistered trademark in question, seeking permission from the registered trademark owner.
Trademark: A complete description of the trademarks in question.
Trademark Use: A full description of how each party uses or will use their respective trademarks and why those trademarks are not likely to cause consumer confusion. This includes both parties' marketing channels, the relevant industries, and other supplemental information about their respective businesses.
Geographic Scope: A list of the geographical areas where the trademark is allowed to coexist and those areas explicitly excluded from the agreement.
USPTO: An acronym for the United States Patent and Trademarks Office.
Holdover Rent: A rent rate applies if a subtenant remains on the property after the Sublease Agreement expires. This is usually a rate significantly higher than the rent established in the Sublease Agreement.
Warranties: This provision guarantees the trademark holder is the true owner of the mark and can allow the unregistered trademark's coexistence.
Event of Default: A condition that, if met, enables the sublandlord to demand immediate and full repayment of the debt or take actions described in the Sublease Agreement.
Dispute Resolution Clause: A contract provision outlining the mechanism both parties agree to use in the case of any disputes arising within the scope of the agreement.
To be legally enforceable, a Trademark Consent Agreement must be signed by the junior trademark owner (the party seeking the use of a trademark) and the senior trademark owner (the party granting use of the trademark). If notarized or witnessed, it should also carry the signatures of the notary or witnesses.
Once the Trademark Consent Agreement is signed and dated, distribute copies to the trademark owners. Each party should keep a signed copy for their records.
A Trademark Consent Agreement does not need to be filed with any local or state records office since it is a private contract. However, a copy will need to be filed with the USPTO to continue pursuing a trademark application with the trademark in question.
It’s technically possible, if the USPTO approves a trademark you may use it for commercial purposes regardless of its similarity to another mark. However, the owner of the confusingly similar mark may choose to object to your use, so this approach invites legal issues in the long run.
Once granted, trademarks are effective in perpetuity as long as their original owner uses them. To wait for the trademark owner to stop using the trademark in ordinary commerce at a whim is not impossible, but likely to be misguided.
If your domicile is located in the United States, a licensed attorney isn’t required for the trademark application process. However, applying for a trademark is a legal proceeding and an attorney can be helpful in navigating the specifics of your application.
A trademark must be distinct enough to not cause consumer confusion in a similar market. The USPTO will analyze your trademark’s similarity, taking into account such factors as:
The design of the trademark
Other trademarks in similar markets
The intention behind the trademark
How strongly the trademark is recognized
How the trademarks sound when spoken
The meaning of the trademark
The commercial impression of the trademark
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