Question 1: Whether can the Letter of Consent be accepted in China?
Answer 1: When a trademark application is refused by citing similar prior trademarks in China, the applicant may first file a review before the TRAB to keep the applied trademark application pending. At the same time, we suggest trying to negotiate with the owner of the cited mark to sign a Letter of Consent.
Although the Letter of Consent has not been formally admitted in China, it can be accepted in the examination practice and a number of refused trademarks are approved for registration after submitting a Letter of Consent signed by the owner of the cited mark. Therefore, if the Letter of Consent can be successfully signed, it may be helpful to convince the review examiner that the owner of the cited mark agrees to the use and registration of the applied mark and the success rate of the review will be enhanced.
Question 2: What is the requirement for the Letter of Consent?
Answer 2: As the negotiation with the owner of the cited marks may take some time, the Letter of Consent is usually submitted within 3 months’ period for submitting supplementary evidence after filing the review.
As the TRAB is now strict in examining the Letter of Consent, it requires the Letter of Consent to be notarized and legalized in the Chinese consulate if the owner of cited mark is a foreign company. If the owner of the cited mark is a Chinese company, it should be notarized.
Question 3: What are the disadvantages of a Letter of Consent?
Answer 3: Not all the refused trademarks can be approved by submitting a Letter of Consent. Whether the Letter of Consent can be accepted will depend on the opinion of the examiner. In the examination procedure, if the applied mark and the cited mark are very similar, the review examiner may possibly not approve its registration even if a Letter of Consent is submitted.
As the owner of the cited mark is usually not directly related to the applicant, it may be difficult to reach the owner of the cited mark. The owner of the cited mark may usually not actively agree to sign a Letter of Consent but may claim some compensation for signing such a document.