The major trait of a trademark is that it distinguishes the origin of goods or services. The most basic function of a registered trademark is to protect the lawful rights and interests of market entities, such as prior rights holders and consumers. The validity of a letter of consent issued by the cited mark holder in a review of the rejection of a trademark has consistently been an important issue.
A letter of consent generally refers to a written document issued by a prior registered rights holder consenting to the registration of a subsequent trademark. From a legal perspective a letter of consent is a legal act of a unilateral authorization. A letter of consent would be issued when two trademarks presents similarities.
If there is a solid difference in the class of goods and the representation of the two trademarks, a conflict of interest would not arise, thus there is no need for a letter of consent. However, if the two trademarks are identical and the designated goods are also identical, registration of the later trademark is difficult even if a letter of consent exists.
Previously courts had been largely unwilling to recognize the legal validity of letters of consent. However, recognizing intellectual property as a private right whose holders are entitled to dispose of their own rights has become accepted by the public due to continuous exchange between Chinese and overseas entities. Courts also have gradually come to accept that a letter of consent is an important factor in weighing a trademark’s registrability.
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Michael Fu is an attorney-at-law at Chang Tsi & Partners
7/F and 8/F, Tower A, Hundred Island Park
Bei Zhan Bei Jie Street, Xicheng District
Beijing 100044, China
Tel: +86 10 8836 9999
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