Trademark Consent Agreements

Trademark Consent Agreements need to include the following: (1) set forth reasons why the parties believe there is no likelihood of confusion; and (2) describes the arrangements undertaken by the parties to avoid confusing the public. See In re Mastic Inc., 829 F.2d 1114, 1117-18, 4 USPQ2d 1292, 1295-96 (Fed. Cir. 1987); In re Permagrain Prods., Inc., 223 USPQ 147, 149 (TTAB 1984); TMEP §1207.01(d)(viii). Otherwise, the consents are generally accorded little weight in a likelihood of confusion determination without additional factors to support a determination that confusion is unlikely. See In re E. I. du Pont de

Nemours & Co., 476 F.2d 1357, 1362, 177 USPQ 563, 568 (C.C.P.A. 1973). Factors to be considered in weighing a consent agreement include the following:

(1) Whether the consent shows an agreement between both parties;

(2) Whether the agreement includes a clear indication that the goods and/or services travel

in separate trade channels;

(3) Whether the parties agree to restrict their fields of use;

(4) Whether the parties will make efforts to prevent confusion, and cooperate and take steps

to avoid any confusion that may arise in the future; and

(5) Whether the marks have been used for a period of time without evidence of actual

confusion.

In re Dare Foods Inc., 2022 USPQ2d 291, at *11-12 (TTAB 2022) (citing In re Four Seasons Hotels Ltd., 987 F.2d 1565, 1569, 26 USPQ2d 1071, 1074 (Fed. Cir. 1993); In re Mastic Inc., 829 F.2d at 1117-18, 4 USPQ2d at 1295-96; In re E.I. du Pont de Nemours & Co., 476 F.2d at 1362-63, 177 USPQ at 568); cf. Bongrain Int’l (Am.) Corp. v. Delice de Fr., Inc., 811 F.2d 1479, 1485, 1 USPQ2d 1775, 1779 (Fed. Cir. 1987)).