The Research On The Validity Of Coexistence Agreement In The Procedures Of Authorization And Determination

The applicant and the cited trademark owner tend to sign a coexistence agreement to resolve their trademark disputes in the process of authorization and determination. On the one hand, to sign a coexistence agreement can avoid costly litigation, on the other hand it also can solve the dispute as soon as quickly. However, to the coexistence agreement, there is still no clear definition in the current Trademark Law. The coexistence agreement, as one of the reasons for the coexistence of trademark, involves many factors. Such as, the registrability of the trademark, the consumer confusion, the market monopoly and so on. So the rationality of the coexistence agreement has always been questioned.This paper choose the “Liangzi” Case as an example. The focus in this case is that if the owner of the cited trademark allow the registration of the applicant of the trademark, this agreement is legal or illegal? Whether the parties could use this coexistence agreement to get their trademark registered or not?This thesis is divided into four parts:The first part starts off the presentation of this case. In this case, the bilateral argument focus on the validity of trademark agreement. There are different attitudes between the Trademark Review and Adjudication Board(TRAB) and the Courts. The TRAB takes an evasive attitude for the coexistence agreement. But, the attitude of the Beijing First Intermediate People's court is clear. It thanks that it's the TRAB‘s authority to decide the registration of a trademark according to the law. However, Beijing Superior court hold a different view, it thanks that if the parties between the applicant and the cited trademark owner have signed a agreement, this agreement should be respected, and this view also supported by the Supreme People's Court.The second part discusses the definition, content and the features of the coexistence agreement. After that, it's the five reasons caused the trademark coexistence. At the end of this part, it's the two problems that the coexistence is likely to cause. 1. The coexistence agreement may harm the interests of consumers. 2. The coexistence agreement may result in market monopoly.The third part analyzes the validity of trademark coexistence agreement in the judicial practice. By studying the cases of the TRAB, I find there are several solutions that TRAB often takes for the coexistence agreement: 1.Taking an evasive attitude and making no comment on the agreement; 2.Easy causing confusion, so do not recognize; 3.Some defects affect the validity of the coexistence agreement, so do not accept it as an evidence. At first, the court do not recognize the validity of the coexistence agreement. However, as time goes by, the court changes it's attitude. If there is no ample proof to prove the coexistence may harm the interests of consumers, this agreement should be respected. At the end of this part, analyzing the reasons may affect the validity of the coexistence agreement.The fourth part analyzes the validity of trademark coexistence agreement in judicial practice abroad. The trademark coexistence agreement has three types of affecting in the registration procedure for trademarks according to the foreign law. 1.Absolute effect; 2.Relative effect; 3.Negative effect. And the United States, the European Union, Britain and Germany have different approaches towards the coexistence agreement.The conclusion part analyzes three viewpoints of the coexistence agreement: 1. Withholding recognition; 2.As a judgment standard of the confusion; 3.The coexistence agreement should be respected. To the coexistence agreement, the judge ZhouYunchuan, Supreme People's Court Intellectual Property Tribunal, thinks it depends on the attribute of trademark right and the legal attribute, function of the trademark authorization. In my opinion, if there is no ample proof to prove the coexistence may cause consumer confusion, this agreement should be respected.