This decision is instructive because it confirms that the TTAB will pay great tribute to the contracting parties who have entered into an approval agreement and that the parties to an approval agreement do not necessarily have to contain provisions on what steps to be taken to avoid confusion in order for approval to be accepted. However, given the TTAB`s indications that such provisions are privileged and probative, it is always desirable to include such provisions. Trademark owners must protect the value of their trademarks and avoid long-term negative consequences that could negate the short-term benefits of a co-existence agreement. The experience of a lawyer with trademark and intellectual property ownership is an invaluable advantage in developing a strategy of agreement on the use of the trademark. The USPTO reviews many relevant factors and evidence before reaching a conclusion regarding the approval of a trademark. In cases where the USPTO believes that the requested mark could lead to confusion between the consumer and a previously registered trademark, the USPTO will place significant weight on an agreement between the applicant and the registered trademark holder. However, the approval agreement should be sufficiently detailed, with concrete reasons and evidence indicating that the parties involved do not foresee consumer confusion and the explicit steps they will take to further minimize them. The “naked” approval agreements (which contain only permission to register the trademark and a brief statement that confusion is unlikely) are much less persuasive to the USPTO. In the end, a high probability of consumer confusion due to extremely similar brands may even null and void the most detailed consent agreement. To minimize the risk of naked consent, it would be preferable to recall the reasons why the parties believe that there is no risk of confusion. In addition, there would be no harm in including a provision that the parties agree to try to avoid confusion and cooperate and take steps to avoid any confusion that might arise in the future.
In addition, it is not likely that trademark holders will easily grant a leveraged approval agreement. It reveals differences in the respective brands, which mainly include differences between the brands themselves (appearance, sound/pronunciation, spelling, importance) and the products/services concerned.