The USPTO reviews many relevant factors and evidence before reaching a conclusion regarding the approval of a trademark. In cases where the USPTO believes that the requested mark could lead to confusion between the consumer and a previously registered trademark, the USPTO will place significant weight on an agreement between the applicant and the registered trademark holder. However, the approval agreement should be sufficiently detailed, with concrete reasons and evidence indicating that the parties involved do not foresee consumer confusion and the explicit steps they will take to further minimize them. The „naked“ approval agreements (which contain only permission to register the trademark and a brief statement that confusion is unlikely) are much less persuasive to the USPTO. In the end, a high probability of consumer confusion due to extremely similar brands may even null and void the most detailed consent agreement. As a general rule, the parties negotiate an agreement on the coexistence of trademarks, accompanied by the approval agreement. While the acceptance agreement is primarily limited to the co-existence agreement itself, the co-existence agreement embodies all the specific information relating to the use of their respective trademarks by the parties. That`s where the rubber falls on the road. The approval agreement is often an exposure to the co-existence agreement, so that the co-existence agreement can be confidential and the approval agreement can be submitted to the USPTO. The precedent of the TTAB Chamber states that „[t]he letter of agreement must reflect the well-considered judgment of experienced businessmen that confusion is not likely in their respective use of the mark. … You have to look at all the circumstances, as in DuPont, to see if consent reflects reality, that there is no risk of confusion in the market, or whether the parties have entered into an agreement that may benefit their own interests, regardless of public confusion. See In re Intuity Medical, Inc.
(TTAB 2011), citing In re Mastic Inc. (Fed). Cir. The manual is published to provide USPTO trademark auditors, trademark candidates, lawyers and trademark representatives with a reference book on practices and procedures for pursuing trademark applications to the USPTO.
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