Contract analysis

I. Introduction and Purpose Thank you for transmitting Brindoval Home Goods Inc.'s ("Brindoval") marked-up draft of the Trademark Coexistence Agreement, dated March 20, 2023 (the "Brindoval Mark-Up"). We appreciate the time and effort your client and your team devoted to their review and appreciate the constructive spirit in which many of the proposed revisions were offered. On behalf of our client, Meridian Consumer

II. Revisions MCB Accepts MCB is prepared to accept certain of Brindoval's proposed revisions, either in their entirety or with minor modifications that we do not believe will be controversial. These accepted revisions are reflected in the Revised Draft. A. Recitals and Definitions (Sections 1–2) MCB accepts Brindoval's proposed clarifications to the recitals regarding Brindoval's characterization of its adoption and

III. Revisions MCB Rejects Notwithstanding the areas of agreement identified above, MCB is unable to accept several of Brindoval's proposed revisions. In each case, the revision either departs from the terms of the mediation framework, introduces unacceptable risk to MCB, or is otherwise inconsistent with the core objectives of the Coexistence Agreement. MCB's reasons for rejecting each of these revisions are set for

IV. Trade-Dress Review Right — MCB's Position and Clarification (Section 6) MCB acknowledges Brindoval's concern regarding the scope of the trade-dress review provision set forth in Section 6 of the Initial Draft. The Brindoval Mark-Up proposes two alternative positions, neither of which is acceptable to MCB. In its primary proposal, Brindoval's mark-up suggests that MCB would have an "approval right" over Brindoval'

V. Quality-Monitoring Provisions — Proposed Compromise (Section 8) Brindoval's mark-up proposes eliminating the quality-monitoring provisions of Section 8 in their entirety. Brindoval's counsel argues that quality-monitoring provisions are characteristic of trademark license agreements and are unnecessary — and indeed inappropriate — in a coexistence agreement between two independent companies using different (though

VI. Mark-Modification Provisions — Confirmation (Section 3) We note that the parties appear to be in agreement on the core mark-modification terms set forth in Section 3 of the Initial Draft, and that Brindoval's mark-up did not propose substantive changes to these provisions. MCB considers the following terms settled: (a) Brindoval shall rebrand from MERIDIAN FRESH to BRINDOVAL MERIDIAN FRESH across all products, pa

VII. Non-Challenge Covenant — Confirmation (Section 11) MCB confirms that Brindoval's mark-up did not propose substantive changes to the non-challenge covenant set forth in Section 11 of the Initial Draft. Under this provision, Brindoval covenants that it will not, directly or indirectly, challenge the validity, enforceability, or distinctiveness of MCB's following federal trademark registrations: (i) U.S. Registrati

VIII. Product-Category Restrictions — Confirmation (Section 5.2) MCB confirms that the product-category restrictions set forth in Section 5.2 of the Initial Draft remain as drafted and that Brindoval's mark-up did not propose changes to these provisions. Under Section 5.2, Brindoval may use the modified mark BRINDOVAL MERIDIAN FRESH only in connection with household cleaning products in International Class 3. Brindov

IX. Governing Law and Dispute Resolution (Section 13) Brindoval's mark-up proposes two changes to Section 13 of the Initial Draft: (1) the addition of a mandatory mediation step as a condition precedent to litigation for disputes arising under the Coexistence Agreement, and (2) a change in the governing law from New York to Minnesota. MCB accepts the first proposal and rejects the second. Mandatory Mediation Step. MC

X. Enclosure and Next Steps Enclosed with this letter, please find the Revised Draft of the Trademark Coexistence Agreement, dated April 3, 2023, reflecting MCB's positions as set forth in this letter. The Revised Draft is provided in both clean and redline formats for your convenience. MCB respectfully requests that Brindoval review the Revised Draft and provide its response on or before April 17, 2023. We believe t

XI. Reservation of Rights Nothing in this letter, in the Revised Draft, or in any prior or future settlement communications between the parties or their counsel shall be deemed an admission or waiver of any of MCB's claims, rights, defenses, or remedies in Case No. 1:22-cv-09483 (S.D.N.Y.) or in TTAB Opposition No. 91/278,415. MCB's willingness to negotiate the terms of the Coexistence Agreement is undertaken in a go