How to consider the effectiveness of trademark coexistence consent

There are two views on considering the effectiveness of the trademark registration agreement:

1. Trademark right is a civil right. Whether there is a conflict between applying for a trademark and citing a trademark is mainly a private civil dispute, and the parties concerned should be allowed to freely dispose of the relevant rights and interests. If the parties reach an agreement on trademark registration, it shall be deemed valid and allowed to apply for trademark registration.

2. Although trademark rights are private rights, the basic function of trademarks is to distinguish different sources of goods or services. If the validity of trademark registration agreement is recognized, it will lead to the existence of trademarks that are easy to confuse consumers in the market, thus damaging the interests of consumers. Therefore, the validity of the trademark registration agreement should not be recognized.

It can be said that these two views have their own reasons. China's laws and judicial interpretations do not clearly stipulate the validity of the trademark registration agreement, and the Trademark Review and Adjudication Board has also carefully studied the issue of rejecting the registration agreement in retrial cases, and holds that the legislative purpose of Article 30 of the Trademark Law is twofold:

First, protect registered or preliminarily approved trademarks to avoid conflicts of trademark rights;

Second, protect the interests of consumers, that is, prevent the same or similar trademarks from appearing in the market, causing confusion among relevant consumers.

Trademark right is a kind of private right. Whether there is a conflict between the applied trademark and the prior trademark is mainly a private right dispute, and the parties should claim their rights through legal procedures. In the case of rejecting retrial, the applicant and the owner of the cited trademark reached a deposit agreement, which has eliminated the conflict of rights between the parties. Moreover, the applicant signed a deposit agreement with the owner of the cited trademark, indicating that the two parties will not "hitchhike" each other when actually using the trademark, and it can be presumed that they have the goodwill to distinguish each other. Therefore, it is unreasonable to completely ignore the deposit agreement between the parties. However, protecting the interests of consumers is one of the legislative purposes of Article 30 of the Trademark Law, and it is also one of the legislative purposes of China's Trademark Law. Therefore, when deciding whether to allow the existence of * * *, we should also consider whether the trademarks of both parties can be distinguished for consumers as a whole, and whether the existence of * * * is likely to cause confusion among consumers.

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