The comfort of consent

A dairy company’s trademark triumph at China’s top court has significantly increased the evidentiary value of letters of consent. George Chan, Ricky Xing, and Zoe Sun of Simmons & Simmons report.

Letters of consent to co-exist (LOCs) are letters issued by registered trademark rights owners, in which they consent to the registration of a later-applied-for mark that may be similar or identical to their previously registered trademark and which designate the same or similar goods or services.

Historically, China’s Trademark Review and Adjudication Department (TRAD), a department within the China National Intellectual Property Administration (CNIPA), and Chinese courts would not permit the registration of two nearly identical trademarks that designate similar or identical goods and services. In these cases, a LOC could be provided to assure the trademark authorities and the courts that two marks will co-exist without any confusion.

However, the TRAD and the courts tended to give little weight to the opinions of the parties to a LOC, and would, instead, prioritise their roles in preventing consumer confusion due to the co-existence of a previously registered mark and a later-applied-for mark.