When a trademark application is refused because an identical or indistinguishably similar mark is already on the register, the first instinct is usually "let's give up on this name." In fact, the letter of consent mechanism, introduced into Turkish law by Industrial Property Law No. 6769, is a legitimate and frequently used way through that wall. This article covers, in detail, what a letter of consent is, how to obtain one, when it works, and what it means for the party signing it.
What Is a Letter of Consent?
A letter of consent is a notarised document in which the owner of an earlier trademark application or registration expressly permits the registration of a mark that is identical or indistinguishably similar to their own, for the same or the same type of goods and services.
Before this mechanism existed, the position was rigid: if an identical mark was on the register, a second registration wasn't possible even if the owner agreed. The legislature introduced this flexibility on the basis that trademark owners should be able to define the boundaries of their own rights.
Which Ground for Refusal Does It Overcome?
There's a critical distinction here. Trademark applications can face two different categories of refusal:
- Absolute grounds for refusal: Grounds the Office examines of its own motion. Lack of distinctiveness, descriptiveness, an identical or indistinguishably similar earlier mark, and so on.
- Relative grounds for refusal: Grounds examined only when a third party opposes. Likelihood of confusion, prior rights, well-known status, and so on.
A letter of consent is designed to overcome a refusal issued on absolute grounds for an identical or indistinguishably similar earlier mark. For relative grounds, the party who filed the opposition can achieve the same result simply by withdrawing it.
We've compiled the full set of refusal grounds in Why Are Trademark Applications Refused?
When Can a Letter of Consent Be Submitted?
Two different timings are possible:
1) Together with the application
If your research identified the blocking mark in advance and you were able to reach agreement with its owner, you can attach the letter of consent to your application file from the outset. This is the fastest route: your application proceeds without ever being refused on that ground.
This is exactly why pre-filing research is the first step of a letter-of-consent strategy. See our article How to Do a Trademark Search for the research methods.
2) During the appeal against a refusal decision
The door remains open even after your application has been refused. Within the appeal period, you can submit the letter of consent and request that the refusal decision be lifted. Timing matters here — we cover the appeal mechanics in How to Appeal a Trademark Refusal.
What Should the Document Contain?
TÜRKPATENT expects a letter of consent to contain certain specific elements. A document that's missing something is treated as if it was never filed. It needs to include:
- The identity and contact details of the trademark owner giving consent (name and national ID number for an individual; company name and tax number for a legal entity)
- Details of the applicant receiving consent
- The application/registration numbers of the earlier mark(s) the consent relates to
- The mark of the new application receiving consent, and its application number if one exists
- A clear statement of the goods and services the consent covers
- A statement that the consent is unconditional and unqualified
- Notarisation
Documents executed abroad may require an apostille or consular certification, along with a sworn translation.
Whether the person signing the document is authorised is a separate check point. If the mark belongs to a company, the signature has to come from someone authorised to represent the company under its signature circular. If the mark is jointly owned, consent is required from all the right holders. A letter of consent signed by only one of several co-owners can later be declared invalid, and the entire process goes to waste.
When Doesn't a Letter of Consent Work?
A letter of consent is a powerful tool, but it doesn't open every door. Typical situations where it doesn't help:
- No distinctiveness. If your mark was refused because it's descriptive, nobody's consent can cure that defect. No one can grant you "permission to use a descriptive word."
- Contrary to public policy. Misleading terms, protected emblems and signs prohibited by law cannot be registered through consent.
- The blocking mark isn't the one you addressed. If the refusal decision cites more than one blocking mark, you need separate consent for each. Permission from one has no effect on the others.
- The scope doesn't match. If consent was given for Class 25 but your application covers Classes 25 and 35, Class 35 is still refused.
Letter of Consent or Coexistence Agreement?
These two documents are often confused, but they serve different functions:
| Letter of consent | Coexistence agreement | |
|---|---|---|
| Addressed to | TÜRKPATENT | The parties (private law) |
| Purpose | Clearing the way for registration | Setting out how the parties will behave in the market |
| Form | Notarised, with content prescribed by law | Freely negotiated contract |
| Can it be withdrawn? | No | Can be terminated per its own terms |
The professional approach is to use both together: the letter of consent secures registration, while the coexistence agreement sets out in writing which channels, which visual distinctions and which geography each mark will use. That way, if confusion arises among consumers down the line, both parties already know what to do.
Writing the Scope: The Most Critical Part of the Process
The most heavily negotiated element of a letter of consent is the scope of goods and services it permits. Trademark owners generally don't want to grant consent across their entire scope — they want to protect their own field of activity while leaving you a different one.
Example: the owner of a mark registered in Class 25 might permit registration of the same phrase in Class 25, but only for "occupational safety clothing." That protects their own retail clothing business while giving you registration in your own niche.
Points to watch when drafting the scope:
- Avoid generic wording — spell out exactly which sub-groups are meant, rather than writing something like "textile products."
- The consent's scope and the application's scope must match exactly. If the application has a broader scope, whatever falls outside the consent is still refused.
- If needed, file a partial disclaimer on your application to align its scope with the consent.
Risks for the Party Giving Consent
A letter of consent is not a one-way favour — it creates real consequences for the person signing it:
- It cannot be withdrawn. Once submitted to the Office, there's no going back on the consent. Saying "I've changed my mind" afterward is not an option.
- Two similar marks now sit on the register. This can weaken your own mark's distinctiveness going forward, and undermine your arguments in future oppositions against third parties.
- Reputational risk. If the quality of the similar-marked product is poor, confusion in the eyes of consumers reflects on your brand too.
For this reason, it's common practice, when giving consent, to keep the scope narrow, to sign a separate coexistence agreement between the parties, and to spell out limits in that agreement such as the manner of use, geographic area and sales channel.
How Do You Negotiate a Letter of Consent?
In practice, the process typically runs as follows:
- Analyse the blocking mark. Who owns it, are they actively using it, do they operate in your sector?
- Find the right counterpart. The address on the register may be out of date; for a company, you'll need to reach whoever holds signing authority.
- Make a concrete request. Rather than saying "I'd like to use your mark," spell out exactly which class and which products you're seeking registration for, and make clear you won't encroach on their field.
- Offer something in return. Most consent is given in exchange for reciprocal consent or a reasonable fee.
- Draft the document and go to a notary. Preparing the text yourself and presenting it to the other party speeds up the process.
Alternatives If Consent Can't Be Obtained
If the trademark owner isn't persuaded, the road doesn't end there:
- Differentiate the mark: Adding a distinctive extra word or an original device element can remove the absolute ground for refusal.
- Narrow the scope: Remove the overlapping goods/services and register for what remains.
- Request cancellation for non-use: If the blocking mark has been registered for more than five years and isn't in use, you can request its cancellation. See the detail in our article The Trademark Use Requirement.
- Acquire the mark: In some cases, buying a dormant mark is a cleaner solution than seeking consent. See Trademark Assignment.
Have Your Refused Application Assessed by Webx
A refusal decision isn't an ending — it's a decision point. The right strategy is to measure the blocking mark's real strength, test whether consent is achievable, and prepare for alternative routes in parallel where needed.
At Webx, we run letter-of-consent negotiations, draft the document itself, and follow through the appeal process. Explore our legal protection service or get a free assessment of your refusal decision.