Trademark practitioners in Canada know that consent agreements between a trademark applicant and the owner of a cited trademark are not easily accepted by the Trademarks Office (TMO). The TMO claims that it is not bound by such consents, namely because its duty is to protect the public from confusion between two registered marks, notwithstanding whether the consenting trademark owners believe that their respective marks can coexist. The only exception is with respect to “official marks”, owned by governments or “public authorities”, where the TMO is bound by such consents. A recent federal court decision reaffirms the TMO’s view in assessing consent agreements.

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