[Jian Xu] Letter of consent relating to trade marks in China

Following an internal meeting in October 2007, the Trade Mark Review and Adjudication Board (TRAB) concluded that they would consider the following when dealing with a letter of consent:

• Similarity of marks and goods - a letter of consent cannot overcome a citation if the respective marks and goods are identical or very similar. The situation is different if the trade marks and goods are only moderately similar (even though such similarity would result in rejection of the application under normal circumstances).
• Reputation – the reputation of the applied-for mark assists accepting a letter of consent, whereas the reputation of the cited mark is against it.
• For some time TRAB has on a case by case basis, been accepting letters of consent even though Chinese trade mark law makes no provisions for this. It is most welcome that the TRAB have stated their position.

In arriving at this conclusion, the TRAB has taken into consideration the function of a trade mark in protecting private and public interest. With the mutual consent of the parties, private interest is no longer an issue and thus the remaining duty of TRAB is to protect the public interest. As long as the coexistence of the marks would not cause confusion amongst the public, a letter of consent can overcome a citation.