A Global and Local Outlook
Edited by Irene Calboli and Jacques de Werra
Chapter 11: OUT OF THE SHADOWS: THE UNIQUE WORLD OF TRADEMARK CONSENT AGREEMENTS
The focus of this chapter is on contractual arrangements that are popularly known as trademark consent agreements. The longtime use of consent agreements developed in trademark practice in response to the need by two (or more) parties to reach an agreement on the terms and conditions for the registration or use of their respective marks, presumably in such a way that does not cause a likelihood of confusion. Despite the temptation to treat these various kinds of arrangement as a single form of agreement, in practice there are multiple forms, reflecting the various contexts in which they arise. While a consent agreement is a contractual arrangement between private parties, its terms and conditions are fashioned in light of the requirements of the applicable domestic trademark laws and other public considerations. For all their prevalence in trademark practice, there is a paucity of professional literature on the subject. This chapter proceeds as follows. First, this chapter distinguishes consent agreements from other types of trademark transactions. Building upon this Part, the remainder of the chapter considers the challenges posed in discussing consent agreements which are fourfold: (i) to identify the various contexts in which consent agreements have arisen; (ii) to consider the different forms of consent agreements that have developed in practice in response to these various contexts; (iii) to address the role of likelihood of confusion in consent agreements; and (iv) to elaborate on the various private and public considerations that can impact a consent agreement.
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