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By Anonymous writer - Glossary

Tolerance refers principally to a rights holder having the rights over the property in question rescinded on account of inaction or passiveness. The relevant provision is Article L.716-5 which states that ‘all infringement actions based on a subsequently registered trademark whose unlawful use was tolerated and known of for a period of five years are inadmissible unless the registration was done in bad faith. Inadmissibility is limited to the products and services for which the unlawful use was tolerated.’

In effect, if the rights holder knowingly allowed a third party to use the trademark without protest over a period of five years, the holder cannot bring an action for infringement or cancellation.

For there to be tolerance, the following three conditions must be met:

  • The rights holder must have knowingly tolerated the use of the trademark;
  • The tolerance must have been during a period of 5 years;
  • The third party using the trademark did so in good faith.

If these three conditions are satisfied, the rights holder is unable to bring an action for infringement or nullity. As a result of this, there will always be two coexisting trademarks on the market.

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