The applicability of applicable legislation and the authority of the AUTHORITY in relation to the parties` national legislation should be respected, since the ACA is sometimes unenforceable.5 The Internal Market Harmonization Office (OHMI) 2 considers that an agreement on the ATT is not binding on OHMI. it may, however, be taken into account, particularly where the application of EU rules3 and EU jurisprudence is considered to be in line with the content of the TCA4 (“the conclusions of the OHIM Board of Appeal are based on the provisions of the Co-existence Agreement, which are clearly considered legally binding by the parties and indicate that the parties themselves have not found any confusion between the trademarks opposing it; OHIM decision R0024/2003 – 1). In accordance with Section I, paragraph 4, of the 2014/C 291/016 communication, a TCA could violate EU competition rules if its effects have a significant impact on trade between EU Member States, estimated either in terms of market share or in terms of the parties` turnover with respect to brands and services subject to the STC. The ECJ confirmed that a CAW could be “legitimate and useful” if there is a “serious risk of confusion” between the trademarks that contradict each other and if the parties intended, through TCA, to settle a dispute related to this potential for confusion. However, a TCA violates EU competition rules if its main objective is to divide the market or restrict competition (ECJ C-35/83 MTD/Commission). A trademark co-existence agreement (TCA) is a contract in which two parties regulate the use of their trademarks in order to avoid a reciprocal infringement of trademark rights. Each ATT should contain several mandatory elements, such as z.B.: overall, CAS is mandatory under Romanian law and taken into account by Romanian courts and the National Office for Inventions and Trademarks. Any restrictions on the ACA would also be considered in light of competition rules. This restriction should be linked to the agreement, proportionate and essential to produce pro-competitive effects.
For example, restrictions such as non-competition bans on products other than those covered by the ACA and indirect restrictions on passive sales (hidden as exclusive trademark use) are contrary to EU and member state competition rules. A sensitive aspect of the TCA is the dilution of brands. The coexistence of similar trademarks by the market could water them down, reduce their distinctiveness and make it more difficult to enforce trademark rights. A TCA should comply with the competition rules of Article 101, paragraph 1, the TEUE and national legislation. The ATT should not affect trade between EU Member States or restrict competition in the internal market. However, the conclusion of an ATT is not recommended if: