Trademark coexistence describes a situation in which two different enterprises use a similar or identical trademark to market a product or service without necessarily interfering with each other’s businesses.The problems start if this distinguishing function no longer works because the businesses for which the trademarks were originally used begin to overlap. Thus trademarks which had happily coexisted at one time may suddenly enter into a conflict.
A thorough trademark search should minimize the risk of a business coming face to face with a similar mark once on the market. But no search is infallible. Identical or confusingly similar trademarks may subsequently be found to exist if the search net was not cast widely enough, or if it did not include other categories of goods and services which might turn out to affect the viability of the proposed mark. Similarly, a search might overlook unregistered marks, as in many countries well known trademarks are protected even if they are not registered.
It frequently happens that two traders find themselves using the same or a similar trademark with respect to the same or similar goods in different parts of the world. They may remain genuinely unaware of each other’s existence for years until one of them expands the business and starts using the trademark or files a trademark application in the country in which the other operates.
What happens then? At that point, a trademark office may refuse the application on the grounds that it conflicts with the earlier rights acquired by the other trader. The latter may also object to the application in the course of opposition proceedings, or bring an invalidation action after the mark has been registered.
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