Within the intellectual property legislation, theconcept of trademark is defined as "Any sign or combination of signs thatdistinguishes the goods or services of one person from those of another, asthey are considered sufficiently distinctive or capable of identifying thegoods or services to those applied against those of the same species or class".
In order to register a trademark, severaladmissibility requirements must be fulfilled as required by law, one of themost important being that it is not identical or similar to a trademark alreadyregistered or in the process of being registered. Now, how do you know if thebrand you want to register is already registered or in the process of beingregistered, protecting similar products or services? Simple, making a feasibilitysearch, the result of the same will throw all the similar trademarks to the oneintended to register, identifying the holder, the date of presentation, date ofinscription and the percentage of similarity between both TM’s.
It is recommended to carry out this feasibilitysearch before launching a product or a service to the market, because in casethe trademark is already registered it could incur in violation of distinctivesigns and therefore be exposed to legal actions of the owner of the trademark.Or it is attempted despite the results of the search, the registrar may notadmit the request, or in case of being admitted, an affected third party wouldoppose the registration of the same.
Now, what if the brand is already in the market, youtry to register it and it is similar to a brand that is already registeredprotecting similar products or services? The law establishes a possiblesolution to this impasse, citing "The coexistence of similar brands can beallowed, when there is a written agreement between the interested parties."That is, a "Trademark Coexistence Agreement", or at best it is alsopossible to negotiate to buy the similar brand, or a license to use it
The Trademark Coexistence Agreement is not regulated in the Salvadoran legislation; however, we can define it as a bilateral and consensual contract between the owners of intellectual property rights, in which they can agree that their trademark can coexist in the market despite being similar.
In El Salvador, it does not necessarily have to be registered before the Intellectual Property Registry, but it must be filed to overcome the inadmissibility of the trademark, or avoid conflict due to similarity. It should be noted that this contract should be about similar and not identical brands since it can induce the consuming public to be confused about the origin of the products or services that it is acquiring.
In conclusion, it is recommended that prior to launching a product or service to the market, a trademark search be conducted and then the registration of trademarks, and if there is a similar trademark registered or in process, enter into a Coexistence Agreement or negotiate the purchase of it.