A consent agreement is an agreement by which one party accepts the registration of a mark by the other or in which each party accepts the registration by the other party of an identical or similar mark. TMEP 1207.01 (d) (viii). The correct form of a consent agreement varies from country to country. In the United States, brand verifiers give less weight to approval agreements that do not detail the reasons why there is no likelihood of confusion than those that do. Consent agreements can be signed by both parties or only by the registrant, depending on whether the agreement contains commitments/assurances to both parties. Consent agreements must be signed by persons legally entitled to bind the parties concerned and must not be signed perjury. It is unfortunate that the plaintiff did not challenge this decision before the Federal Circuit. This could have been another opportunity for the Federal Circuit to really realize how unsaned consent agreements should be managed and to address the dynamic between restrictions in an approval agreement and no restrictions in a registration subject to an approval agreement. Indeed, since the TTAB`s decision regarding Bay State Brewing in 2016, the TTAB has adopted two other decisions rejecting the approval agreements filed to overcome the refusals of confusion within the meaning of Article 2(d). Let`s take a look at the three recent TTAB decisions regarding approval agreements.
Therefore, the board found that the approval agreement was sufficient to overcome the rejection of Article 2(d). A detailed approval agreement can help tip the balance in favour of finding a likelihood of confusion, showing that the parties are actively trying to avoid confusion. There is one thing that jumps on me as soon as I look at these three cases. In all three cases, the brands and products are identical (or virtually identical). It concludes that if you submit a consent agreement that includes nearly identical brands and products, you should be prepared for the consent agreement to be scrutiny by the examining lawyer and for the consent agreement to be denied. Thus, in the stopping agency KTM-Sportmotorcycle AG, TTAB confirmed the examiner`s refusal to register the mark `E SPEED`, on the ground that it was confusing with the mark `EPSEED`. While the trademark owner and the applicant entered into a consent agreement, the board found that the terms of the agreement constituted bare consent. Indeed, the agreement consisted of only three paragraphs: unless the product campaign is limited to certain countries, the parties should think about how and when they will resolve consent issues in other jurisdictions. In some cases, it is useful to deal with all these problems in advance. If so, it is preferable to include in the underlying coexistence agreement a provision stating that the parties will cooperate in good faith to file the necessary documents in other countries.
In other cases, each party wishes to cancel the additional national debate for another day and the coexistence agreement should be explicitly limited to the country concerned. . . .