The case of Apple Corps, the label created by the Beatles, and Apple Computer2 illustrates the difficulties (see WIPO magazine 3/2006). In 1991, the two companies reached an agreement on the coexistence of trademarks. provided that Apple Computer has the exclusive right to use its Apple trademarks „on or in combination with electronic goods, computer software, computer services and data transmission“; Apple Corps would certainly have the exclusive right to use its own Apple trademarks „on or in relation to current or future creative works, whose main content was music and/or musical performances, regardless of the means used to record or communicate these works, tangible or non-tangible.“ Although the two companies have similarly confused brands, they have identified an area in which they were different – that is, areas of application – and this has become the basis of their co-existence agreement. The agreement allowed both companies to continue to do business and build on their reputations without violating each other. A brand co-existence agreement is a broader agreement that offers even greater protection than a simple approval agreement. Co-existence agreements generally include unique restrictions on sites, industries and/or marketing methods in which two parties can use their respective trademarks. These specifications apply in addition to the points mentioned above in the approval agreement. Co-existence agreements are particularly useful for companies wishing to develop and avoid future infringement procedures and/or litigation. The process of selecting a brand should be carried out with caution and foresight, carry out as complete a search as possible, preferably with the help of a specialist.
If, despite these efforts, a conflict with the same or similar brand in the market is created, then a co-existence agreement may be less costly than a legal confrontation. This is not to say that it is always better to capitulate and accept a coexistence in the face of litigation, but in some situations, litigation may be the only appropriate response. It is up to the trademark holders to assess, in all cases, what would be appropriate given their particular circumstances. A brand co-existence agreement should include the following: despite the co-existence agreement, costly disputes have not been avoided in this case. As with all agreements, it is therefore desirable to include a dispute resolution clause in the event of future problems. THE WIPO Mediation and Arbitration Centre provides some useful examples of these clauses3. Approval agreements are simple and fast. If trademark registration is urgent, an approval agreement has disappeared.