The PRC Trademark Law and relevant Rules and Regulations do not provide any guidance on the value of consent letters or coexistence letters in supporting arguments presented in the context of trademark rejection appeals. In recent years, the TRAB has accepted consent letters or coexistence letters when the trademarks are not identical, and there are other factors present that would otherwise mitigate the odds of confusion. TRAB decisions in such cases have thus been highly discretionary and inconsistent.
In the last few years, the Beijing courts have reviewed a number of similar cases involving consent letters or co-existence agreements. For example, in the case of Shandong Liang Zi Zi Ran Jian Shen Yan Jiu Yuan You Xian Gong Si (“Shandong Liang Zi”) v. TRAB (2009), the Higher Court overturned the Intermediate Court’s decision supporting a TRAB ruling in an appeal involving a coexistence letter, allowing co-existence of the subject trademark (Reg. No. 1551944) and cited trademark (Reg. No. 1235891) in respect of similar services in Class 42.
Click here to view trademarks
In the current case, the Higher Court appears to be setting a clear standard for review of a TRAB decision involving a consent letter or co-existence agreement. First, the Higher Court confirmed that a consent letter should be considered when determining the similarity of the marks under Article 28 of the PRC Trademark Law. Second, the consent letter should per se be deemed strong evidence that the likelihood of confusion is modest or should be tolerated in relation to the coexistence of the two marks. Finally, a consent letter should be respected as long as there is no evidence showing that public interests will be harmed. Although the PRC is not a common law jurisdiction, and does not follow the doctrine of stare decisis, decisions such as this by the Higher Court in Beijing are generally indicative of how cases are and will be handled going forward. This case is thus noteworthy, and should provide helpful guidance for the handling of similar cases in the future.