Each ATT should contain several mandatory elements, such as z.B.: a trademark co-existence agreement (TCA) is a contract whereby two parties regulate the use of their trademarks to avoid a reciprocal infringement of trademark rights. However, the conclusion of an ACA is not recommended if: an ACA should comply with the competition rules under Article 101, paragraph 1 of the EC Treaty and in national legislation. The ATT should not affect trade between EU Member States or restrict competition in the internal market. 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. 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. 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). It is important to ensure that the CAW is applicable to the national laws of the parties.5 Overall, CAW is mandatory under Romanian law and is taken into account by Romanian courts and the National Office for Inventions and Trademarks. With regard to Community trademarks, the Internal Market Harmonization Office (OHMI) 2 believes that: that the TCA does not bind OHMI, but can be taken into account, particularly if the application of EU rules 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 established a risk of error between the two parties; see OHIM`s decision no R0024/2003 – 1)..