Trademark Coexistence Agreement Competition Law


Co-existence agreements can be a simpler and less costly solution for trademark disputes between the parties, not disputes in appropriate circumstances. When registering a trademark, one of the essential rules is not to choose a mark that resembles an earlier mark. However, in the business and commercial world, two parties may use similar or identical brands to market their goods and services through coexistence agreements. The aim of this article is to provide an overview of the typical benefits and potential pitfalls of coexistence agreements. Among the potential benefits of a co-existence agreement are: an important issue to be considered before the negotiation of a co-existence agreement is that of public interest. A court may cancel an agreement if it considers that the coexistence of similar marks in a given case is contrary to the public interest. This can occur especially in the field of public health, when two different medical devices bear the same mark, even if the companies operate in different geographical areas. It should be stressed that prevention is better – and cheaper – than cure. One of the most basic precautions when selecting and registering a new brand is the most complete search possible, with the intervention of specialists specialized in the task. In-depth brand research should minimize the risk of a company facing a similar brand in the market.

But no research is infallible. Similar identical or confusing marks may be found later if the search network has not been sufficiently leaked or if it does not contain other categories of goods and services that could be detrimental to the viability of the proposed mark. Similarly, a search may overlook unregistered trademarks, as in many countries known trademarks are protected, even if they are not registered. Co-existence agreements can offer legal opportunities and economic benefits that, in appropriate circumstances, could be useful to trademark owners and consumers concerned. However, it is essential that it is skilfully designed to avoid future conflicts. Co-existence agreements can be effective instruments for resolving trademark disputes, but parties interested in the use of such an instrument should accept, in agreement with brand lawyers, the effects of the use of such agreements on their activities before committing to participate in such an agreement. A co-existence agreement may be used if one of the parties is aware that another company is marketing a trademark or is about to harm its customers or harm its business, or if one of the parties is concerned that a competitor is attempting to register a trademark that could make it more difficult to expand the party`s business. A brand co-existence agreement is a broader agreement that offers even greater protection than a simple approval agreement. Co-existence agreements generally include unique restrictions on sites, industries and/or marketing methods in which two parties can use their respective trademarks.

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