What is a trademark coexistence or consent agreement, and will the USPTO accept it?

Two businesses discover they use similar names, an examiner cites one mark against the other's application, or an opposition is heading for trial. Often the cheapest outcome is an agreement that lets both brands live side by side. Our page on IP licensing and assignments covers licenses and sales; a coexistence agreement is neither, and it has its own rules at the USPTO. This page explains how the Trademark Manual of Examining Procedure weighs these agreements and what makes one persuasive.

How a consent agreement works at the USPTO, step by step

1. The conflict. Section 2(d) bars registration of a mark that so resembles a registered or previously used mark as to be likely to cause confusion, mistake or deception (15 U.S.C. 1052(d)). Our page on responding to a likelihood-of-confusion refusal covers that refusal.
2. Approach the other owner. The applicant must do this itself: "an examining attorney may not solicit a consent agreement" (TMEP 1207.01(d)(viii)).
3. Negotiate the terms. The parties agree on how each will use its mark: goods, channels, customers, presentation, and steps to avoid confusion.
4. Sign it properly. If the agreement makes representations about both parties' views or commits both to act, it should be signed by both, or by people with authority to bind them.
5. File it. Submit it with a response to the refusal, or with the application in anticipation of one. The response deadline for most office actions is three months, extendable once by three months for $125, as our refusal page explains.
6. The examiner weighs it. The consent is "but one factor to be taken into account with all of the other relevant circumstances," but a proper "clothed" consent gets substantial weight.

What makes the USPTO give a consent weight?

The TMEP lists five factors, drawn from Federal Circuit and Board decisions:

None of factors 3 to 5 is mandatory, according to the TMEP, but each makes the agreement more probative. What the USPTO resists is the bare document: "'Naked' consent agreements (i.e., agreements that contain little more than a prior registrant's consent to registration of an applied-for mark and possibly a mere statement that source confusion is believed to be unlikely) are typically considered to be less persuasive" than agreements that give reasons and arrangements. The TMEP quotes the court in du Pont: "A mere assumption that confusion is likely will rarely prevail against uncontroverted evidence from those on the firing line that it is not."

The flip side is that there is no automatic rule. The TMEP cites a 2025 Board decision finding a consent had "multiple failings" where identical goods were sold to the same customers through the same channels under highly similar marks, the agreement did not separate channels or restrict fields of use, and the parties had coexisted for only about a year. And it notes that the Federal Circuit has said the USPTO should not substitute its judgment for that of the real parties "without good reason, that is, unless the other relevant factors clearly dictate a finding of likelihood of confusion."

Consent, coexistence, license and concurrent use: what is the difference?

• Consent agreement. The TMEP's term for an agreement in which one party consents to the other's registration, or each consents to the other's. It is usually filed with the USPTO.
• Coexistence agreement. A broader commercial deal setting the rules for both marks in the marketplace: who sells what, where, how each will look, and what happens if confusion appears. It often includes a consent and is kept as a private contract.
• License. One owner permits the other to use its mark, under its quality control, and the use benefits the owner. A coexistence deal should not read like a license unless that is what the parties intend; our page on why a trademark license needs quality control explains the consequences.
• Concurrent use registration. A geographically restricted registration issued after a Board proceeding or a court decision under the proviso to section 2(d). The TMEP says a consent agreement "is not the same as a 'concurrent use' agreement" (TMEP 1207.04), and an assignment cannot impose geographic limits on a registration either (TMEP 501.06).

What should a coexistence agreement include?

• The marks and the goods. Exactly which marks, and which goods and services each party may use them for, ideally matching the identifications in the application and registration.
• The reasons confusion is unlikely. Different products, buyers, price points, channels or presentation, stated as facts rather than conclusions.
• Field and channel limits. What each party will not do: product lines it will not enter, channels it will not sell through.
• Presentation rules. House marks, logos, colors or trade dress each party will use to keep the brands distinct.
• Cooperation. How the parties will handle misdirected customers, mail or reviews, and a duty to discuss any confusion that appears.
• Registrations. Each party's consent to the other's registration for the defined goods, a promise not to oppose or seek cancellation on agreed grounds, and amendments to narrow identifications where needed.
• Successors and duration. Whether the agreement binds buyers of either business, and what happens if one party abandons its mark.

Because these agreements limit how marks may be used, they are among the documents the USPTO will record in its assignment records to give third parties notice; the TMEP lists "agreements between parties limiting future extension of use of a mark" as an example (TMEP 503.02). Our page on recording a trademark assignment explains the Assignment Center process. The same drafting logic helps when two bands or artists share a name, a situation our page on trademarking a band or artist name discusses.

What changes the answer

• How close the goods and marks are. The more identical the marks, goods, customers and channels, the more the agreement must explain why confusion is still unlikely.
• Who signed. A letter signed only by the registrant can still help, but its weight is judged against everything else in the record.
• Stage of the dispute. In an opposition or cancellation, a coexistence agreement often comes as part of a settlement; our page on what happens in a TTAB opposition explains how settlement talks fit the Board's schedule.
• Common-law users. If the conflict is with an unregistered prior user, the same section 2(d) analysis applies; our page on what you can do when someone files for your brand covers the routes for a prior user.
• Later changes. If either party expands into the other's field, the agreement should say what happens, or the original reasons for coexistence may no longer hold.

A worked example

Common mistakes

• A one-sentence consent. The TMEP treats naked consents as weak.
• Promises the business will not keep. If the agreement limits fields or channels, the business has to live within them.
• Only one signature on mutual promises. When both parties make representations or commitments, both should sign.
• Accidentally creating a license. Language that one party "permits" the other's use under its standards can read as a license with quality control obligations.
• Trying to split territory by agreement. Geographic restrictions on a registration need a concurrent use proceeding or court decision.
• Missing the response deadline while negotiating. File for the extension in time; our page on missed USPTO deadlines explains what happens if you do not.

What to do this week

1. Read the refusal or the conflicting registration and note exactly which goods and services overlap.
2. Gather facts on both businesses: customers, channels, price points, how long each has used its mark, any known confusion.
3. Decide what limits you can actually accept in your field and channels.
4. Contact the other owner with a proposal that addresses the five factors.
5. Calendar the office action deadline and the extension date.
6. Have both parties sign, and file the agreement with the response and supporting evidence.

Frequently asked questions

Will the USPTO always accept a consent from the cited registrant?

No. The TMEP says there is no per se rule, and the content of each agreement is examined. Detailed agreements get substantial weight; naked consents get little.

Can the examiner ask the other owner for consent?

No. The TMEP says an examining attorney may not solicit a consent agreement. The applicant must arrange it.

Does the agreement need evidence of no actual confusion?

It helps but is not essential. The TMEP says a period of use without confusion makes a consent more probative, but it is not required for the agreement to have value.

Is a coexistence agreement public?

A consent filed with the USPTO becomes part of the application file, which anyone can view in TSDR. Parties often keep a fuller commercial coexistence agreement private and file a shorter consent document that still addresses the five factors.

Can a coexistence agreement settle an opposition?

Yes. Parties can settle an opposition with an agreement that narrows the application's goods, gives consent and sets rules for future use, after which the opposition is withdrawn or the application amended.

Do I need a lawyer to file a consent agreement?

Not necessarily, unless the applicant is foreign-domiciled, in which case U.S. counsel is required. Our main copyright and trademark page covers office actions and trademark proceedings more broadly.

Zala IP Law negotiates and drafts coexistence and consent agreements and responds to likelihood-of-confusion refusals, and Shreepal J. Zala practices federal intellectual property law nationally. If a similar mark stands in your way, request a consultation or call 404-313-1701.