Supreme People’s Court's evolving attitude to letters of consent

By Danny Chen

New draft regulations – as well as a survey of recent cases – suggest that the Supreme People’s Court is starting to take letters of consent seriously when it comes to conflicts with prior marks

In October 2014 the Supreme People’s Court published its Draft Regulations on Certain Issues Concerning the Trial of Administrative Cases Involving the Granting and Determination of Trademark Rights for public comment. Article 20 (on co-existence agreements) states that where the Trademark Review and Adjudication Board (TRAB) refuses a trademark application, decides that a mark shall not be registered or adjudicates to invalidate a registered mark based on its conflict with prior mark(s), if the owner(s) of the prior mark(s) and the owner of the trademark at issue reach an agreement during the course of litigation and consent is given to registration of the later mark, the court may permit this. While this appears to be the first time that the term ‘co-existence agreement’ has arisen in Chinese judicial interpretations, such instrument – as well as its easier substitute, ‘letter of consent’ – has in fact been used to overcome ex officio refusals for years.

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