Coexistence Agreement Sample

A party that is clearly a user of the junior mark (not the first party to use a trademark) may have no choice but to seek a consent agreement from the former user of the mark (the first party to use a trademark in commerce and register it normally). However, if bargaining power between the parties is more regular, a coexistence agreement detailing issues important to both parties is probably in everyone`s best interest. Bargaining power with respect to the use of trademarks may be created by older user status, a famous or well-known mark, or the ownership of additional marks the limitation of which may be of interest to the other party. Consent agreements are quick and easy. If trademark registration is urgent, a consent agreement is the right way to go. “Naked” consent agreements (which contain only permission to register the trademark and a brief statement that confusion is unlikely) are far less convincing to the USPTO. Ultimately, even the most detailed consent agreement can be voided by a high risk of confusion due to extremely similar trademarks. In case of risk of confusion, trademark owners can hope for the best and do nothing; they may take legal action either by contravening the trademark application filed by the other, or by authorizing the registration of the mark and then applying for an injunction; or they can agree on how to coexist. In accordance with the provisions of this Agreement, a Party with an established (and generally registered) trademark takes a series of reciprocal obligations with a Party wishing to establish a new mark allowing both Parties to continue to use their marks. In some cases, the established party may require limited modifications to the categories of goods and/or services for which the most recent party wishes to use its mark in order to avoid inappropriate overlap and the risk of confusion. The purpose of a trademark coexistence agreement is that trademarks are often used in good faith by several companies. The absence of a formal agreement does not undermine any company that uses the brand, as is the case in different global regions..

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