Uspto Consent Agreements

Oct 132021

TTAB decided that great importance should be attached to an approval agreement in which “competitors have clearly considered their economic interests” and that the auditor should not replace his judgment on the likelihood of confusion between two marks with the judgment of the actual interested parties. Accordingly, TTAB annulled the refusal to register the american constellation trademark. It is unfortunate that the plaintiff did not challenge this decision before the Federal Circuit. This could have been another opportunity for the Federal Circuit to really realize how unsaned consent agreements should be managed and to address the dynamic between restrictions in an approval agreement and no restrictions in a registration subject to an approval agreement. As with Bay State Brewing and KTM-Sportmotorcycle, TTAB first took into account the bridge`s other factors and found the brands, products and business channels similar to the parties before turning to the approval agreement under the Bridge Factor market interface. When evaluating the consent agreement in this case, the TTAB weighed five factors: these are the factors set out by the Federal Circuit in various opinions on consent agreements. When analyzing the consent agreement, TTAB accepted the lawyer`s finding that the geographical restriction in the consent agreement was not legally significant. It did so for two reasons: (1) While the applicant was prevented from using its mark outside of New England and New York, there was no geographical restriction for the declarant to use its mark in New England or New York and (2) if the applicant`s application matured for registration, the registration would not reflect the geographical restriction. Of course, anyone who ensures that the second point of the TTAB has nothing to do with a likelihood of confusion between the marks at issue. This is a transparent attempt to support a conclusion already reached. Proposals to improve the form and content of the manual are always welcome….

 Posted by at 12:32 pm

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