Within the intellectual property legislation, the concept of brand is defined as "Any sign or combination of signs that allows to distinguish the goods or services of one person from those of another, as these are considered sufficiently distinctive or capable of identifying the goods or services to which they apply compared to those of the same kind or class".
In order to register a trademark, various admissibility requirements required by law must be met, one of the most important being that it is not identical or similar to a trademark already registered or in the process of being registered. However, how do you know if the trademark to be registered Are you already registered or in the process of registering protecting similar products or services? Simple, by carrying out a prior search, the result of the same will yield all the marks similar to the one that is intended to be registered, thus identifying the owner, the filing date, registration date and the percentage of similarity between both marks.
It is recommended to carry out said search before launching a product or a service on the market, since if the trademark is already registered and in force, it could incur in a violation of distinctive signs and consequently be exposed to legal actions by the owner of the trademark; or if the registration of the same is attempted despite the search results, the registrar may not admit the request or it may be admitted, in the latter case an affected third party would oppose the registration of the same.
Now, what if the trademark is already on the market, I try to register it and it is similar to a trademark that is already registered protecting similar products or services? The Law establishes a solution to this impasse, citing "The coexistence of similar brands may be allowed, when there is a written agreement between the interested parties." In other words, formalizing a "Trademark Coexistence Agreement"; or in the best of cases it is also possible to negotiate to buy the similar brand, or a license for use
The Trademark Coexistence Contract is not regulated in all laws, in this case it is not found in La Salvador, however, we can define it as a bilateral and consensual contract by means of which the relations between holders of trademark rights are regulated. intellectual property over trademarks when these may conflict. It can be formalized by means of an authenticated private document or public deed, taking into account some essential clauses such as:
- Referring to the information of both brands
- Object of the contract. Obligations of the parties
- Compliance with obligations.
- Jurisdiction to settle conflicts.
These are some of the stipulations to take into account when formalizing the trademark coexistence contract, it must not be registered in the case of El Salvador before the Intellectual Property Registry but must be presented to overcome the inadmissibility of the trademark. or avoid conflict by similarity. It should be noted that said contract must deal with similar and not identical brands, since in the latter case it would lead the consuming public to confusion about the origin of the products or services that they are acquiring.
In conclusion, it is recommended that prior to launching a product or service on the market, a trademark prior search is carried out and then the trademark registration is carried out, and if there is a similar trademark registered and in force, there is the possibility of entering into a Trademark Coexistence Agreement. .