In today’s highly competitive global environment, effectively protecting and registering trademarks has become a top priority for businesses. However, this process is not always straightforward: it is common to encounter objections or refusals from Intellectual Property Offices, especially when there are existing registrations for similar or identical marks. Against this backdrop, consent letters and coexistence agreements have emerged as useful mechanisms to overcome these hurdles and facilitate the harmonious coexistence of various distinctive signs in the marketplace. By examining their use in jurisdictions such as Brazil, Peru, Mexico, Chile, China, and the United States, one can see that their value lies in the flexibility they grant the parties to negotiate and demonstrate to the authorities that the coexistence of similar marks will not cause confusion or disrupt competition.
Consent letters are a form of unilateral expression of will through which the owner of a trademark states that they do not oppose the registration or use of an identical or similar mark. This declaration can be submitted as part of a trademark application file to address objections based on the existence of prior registrations for identical or similar goods or services, thereby increasing the chances of a favorable resolution. More specifically, an authorization letter is a document certifying that the intellectual property owner grants permission for a third party—such as a distributor or retailer—to sell or market products or services that incorporate the relevant mark. Both types of letters are based on the premise that the true right holder does not feel their interests are harmed by the simultaneous use of the mark, provided the agreed conditions are met.
Coexistence agreements, on the other hand, are contractual instruments that go beyond a simple unilateral statement and allow the parties to establish specific clauses that define how the marks in question will be used. Typically, these agreements clearly set out the territorial scope of application, the goods and services each mark may cover, and the precise manner in which the marks will be presented. They also generally include dispute resolution mechanisms, which are essential to prevent future litigation and to determine the consequences of any breach. This aims to ensure that the coexistence of ostensibly similar marks does not lead to consumer confusion or undermine the rights of the original mark owner.
A particular case is Mexico, where there is no explicit statutory provision for coexistence agreements or consent letters, although these tools are widely used in practice to address objections raised by the Mexican Institute of Industrial Property when a prior registration is found that covers identical or confusingly similar goods or services. In such circumstances, the registered trademark owner can issue a consent letter stating that they do not consider the new registration to infringe their rights. Although there is no specific regulation, authorities tend to look favorably on such written evidence when deciding whether to approve an application, though it is also recommended that these documents meet certain minimum requirements regarding form and substance to avoid ambiguity.
The outcomes of signing a consent letter versus a coexistence agreement can be quite different. While a consent letter is usually limited to a unilateral statement that does not impose obligations on the beneficiary, a coexistence agreement entails the signing of a contract that does establish rights and obligations for both parties. These can include commitments not to oppose the use or registration of the relevant mark, to maintain certain quality standards, or to restrict use of the sign to specific territories or product categories. Therefore, coexistence agreements offer greater legal certainty but also require more detailed and careful negotiation to achieve maximum effectiveness.
Ultimately, these legal instruments are significant because they enhance security and competitiveness in the marketplace by allowing new players to enter and promoting freedom of enterprise through amicable, pre-litigation solutions. In an increasingly globalized business environment, having flexible tools that can be adapted to each circumstance enables trademark owners and applicants to overcome administrative challenges, strengthen their intellectual property portfolios, and—above all—prevent disputes that could become protracted and costly, both financially and in terms of reputation. With proper legal advice, consent letters and coexistence agreements become valuable allies for companies seeking to protect and optimize the exploitation of their trademark assets on both a national and international scale.
