At least, an approval agreement should not be likely to result in confusion between two brands, given the differences between brands and products or services, the number of similar brands, purchase conditions and other relevant distinctions. In Re American Cruise Lines Inc., the TTAB decided that an approval agreement in which “competitors have thought their interests well” should have a high weight and the USPTO should not present its judgment on the risk of confusion over the objection of the parties involved. See 128 U.S.P.Q.2D (BNA) 1157, 1163 (TTAB 2018). In this case, the parties were the two cruise lines with similar marks. They submitted an approval agreement that included five credible reasons for the implausibility of confusion between their trademarks, in particular: a party that is clearly a follower brand user (not the first party to use a trademark) may have no choice but to require an approval agreement from the former user of the trademark (the first party that uses a trademark in the trade and that is generally registered). However, if the bargaining power between the parties is more regular, a co-existence agreement detailing the issues important to both parties is probably in the interest of all. The bargaining power for the use of the trademark can be created by the status of an older user, by a known or known brand, or by the ownership of additional trademarks that the other party may be interested in limiting. A brand co-existence agreement is a broader agreement that offers even greater protection than a simple approval agreement. Co-existence agreements generally include unique restrictions on sites, industries and/or marketing methods in which two parties can use their respective trademarks.
These specifications apply in addition to the points mentioned above in the approval agreement. Co-existence agreements are particularly useful for companies wishing to develop and avoid future infringement procedures and/or litigation. American Cruise Lines appealed the decision to the TTAB, which reversed the rejection, and stated that “the inclusion of provisions to avoid potential confusion is preferred and denied in approval agreements, but they are not mandatory.” This decision confirms that TTAB respects the parties in an approval agreement and that there is no need for these parties to include provisions on what steps to be taken to avoid confusion in order for consent to be accepted. Finally, a well-developed approval agreement will be signed by both parties. For more information on consent agreements, please see the Trademark Review Procedure (TMEP) guide at .1207.01 (d) (viii). In addition, the TTAB found that only five months, without any real confusion, show that there is unlikely to be confusion. Nor did the agreement highlight the difference between the commercial channels between the applicant and the registrant and the way in which they restrict their areas of intervention. Consumers of both the applicant`s beer and the registrant would likely be identical and the consent agreement contained no provision that would reduce the risk of confusion for these consumers. The acceptance agreement also indicated that different product packaging was being used in the market, but in the absence of examples of different packaging, the TTAB could not determine the effectiveness of reducing the risk of confusion. After reviewing the approval agreement, the TTAB found that the Bridge factor was neutral with respect to the market interface.