Do marks on OEM goods infringe domestic trademarks?

Coexistence agreements first began appearing internationally in the 1980s. The International Trademark Association defines a coexistence agreement as “an agreement by two or more parties that similar marks can coexist without any likelihood of confusion; it allows the parties to set rules by which the marks can peacefully coexist”. Coexistence agreements are, at essence, contracts that express the parties’ intent in full. They have been relatively effective in resolving trademark coexistence disputes.

Currently China lacks specific regulations addressing the validity of coexistence agreements in the field of trademark registration. The majority of administrative authorities responsible for trademark registration rely on their examiners’ subjective discretion during substantive review in determining whether the coexistence of trademarks could lead to confusion. They decide whether to accept coexistence agreements and approve registration of the later trademark. As a result, outcomes in similar cases have been vastly different.

This column will briefly consider and analyse whether coexistence agreements are valid and applicable during trademark registration.