A detailed approval agreement can help you overcome a refusal at No. 2 (d). The agreement should be supported by evidence, including differences in trademarks, goods or services or bargaining channels; simple consent without substance does not overcome the refusal of paragraph 2, point (d). It may also be beneficial to include provisions that decry the steps your client will take to minimize confusion. If you think the examiner will refuse your client`s application because of the likelihood of confusion with a trademark, you may consider obtaining a consent agreement with the trademark holder at any time before applying. This can save time in the brand application process and give your customers a better idea of the application`s chances of success. In any case, an approval agreement can be an excellent tool to help your client overcome a 2 (d) refusal and obtain federal trademark protection. The only part of the agreement that has any content is the last paragraph. However, without explaining why confusion is unlikely or how the parties will cooperate in the future to avoid confusion, the agreement was not sufficient to overcome the refusal of 2 d) and the applicant`s mark did not register.
A simple approval agreement is generally cheaper because it includes less time and resources for the project. However, you will receive what you pay and a co-existence agreement will certainly offer more protection. The Trademark Trial and Appeal Board (TTAB) gave a previous notice in In re American Cruise Lines, Inc. on the provisions necessary to obtain acceptable consent to registration. In this regard, the TTAB has provided clarification and instructions to trademark holders who negotiate and edify consent agreements. 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.