When a coexistence agreement is proposed: what it costs to be wrong
A coexistence agreement lets two brand owners use similar marks without a dispute — but a badly drafted one binds you for as long as both marks exist. Get the scope, territory and future-filing terms wrong, and the agreement becomes evidence against you in the next dispute, not protection from it.
Where this sits in EU trade mark law
The European Union trade mark system treats a coexistence agreement as a private contract, but the contract interacts with a public procedure. Under Regulation (EU) 2017/1001 (EUTMR), a letter of consent from an earlier right holder can remove a relative ground for refusal at examination or opposition stage. The agreement you are asked to sign is often that letter, or the basis on which one is later produced.
A separate consequence sits outside the register. Regulation (EU) No 608/2013 lets a right holder ask customs authorities to detain goods suspected of infringing a registered mark. If your coexistence agreement authorises the other party's goods to circulate under a similar mark, that authorisation has to reach the application for action already lodged with customs. Otherwise genuine, agreed goods can still be stopped as if they were counterfeit.
What changes when the drafting is wrong
Three consequences follow from careless drafting. First, an agreement silent on future classes or territories does not travel with either business — a later filing outside its stated scope reopens the exact conflict the agreement was meant to close. Second, a coexistence agreement that admits similarity between the marks can be read back against you if a third party later argues confusion in an unrelated dispute. Third, an agreement never communicated to the relevant register or to customs leaves border enforcement, and any later assignee of either mark, unaware that consent exists at all.
What to do, in order
- Map the actual conflict first. Instruct trade mark counsel to compare the marks, classes and territories named in the proposal against your registered and pending filings.
- Draft the scope narrowly. Limit consent to the goods, classes and territories genuinely in dispute; do not extend it to future filings without a separate review step.
- Add a non-admission clause. Record that coexistence is a commercial arrangement, not an admission that the marks are similar or confusing.
- Bind successors and licensees. Require the other party's assignees and licensees to accept the same terms, or the agreement lapses on transfer.
- Notify the relevant register and customs. File the letter of consent where the office requires it, and update any application for action lodged under Regulation (EU) No 608/2013 so authorised goods are not seized.
- Set a review trigger. Agree a point — a new filing, a new market — at which either side can revisit the scope.
| Step | Who does it |
|---|---|
| Map the conflict | Trade mark counsel |
| Draft narrow scope | Counsel, with instructions from in-house legal |
| Add non-admission clause | Drafting counsel |
| Bind successors and licensees | Counterparty, checked by your counsel |
| Notify register and customs | Trade mark counsel, together with the customs agent of record |
| Set review trigger | Both parties, recorded in the agreement text |
Who decides, and on what timeline
Inside the EU trade mark system, the decision sits with the office examining the application, not with the two parties. It records a letter of consent and weighs it against the relative ground it is meant to resolve; it does not test whether the underlying deal is fair. Customs authorities act on the application for action already on file, not on the coexistence agreement itself, which is why the update has to reach them directly and separately. A national court, if the dispute later escalates, decides how much weight the agreement carries as evidence of similarity between the marks.
If your situation looks like this
If the proposal covers only the classes you already use, a narrow, time-bound consent is usually enough. The remaining risk sits in future filings, not in the current register.
If the other party is entering your markets through a distributor, the agreement has to address that distributor's conduct directly, or the conflict can resurface through a channel the agreement never named — see When a distributor is sued over your product and for how that channel plays out on its own.
If reviewing the proposal means sharing customer or usage data with the other side's systems, treat that exchange as a separate question — see When personal data flows to a new subprocessor: what for what that exchange requires on its own terms.
If the counterparty proposing coexistence is part of a wider group that also issues and operates its own platform, the related-party structure raises consent questions that sit outside trade mark law — see When the issuer and the platform are related: what for that pattern.
What drives the cost, and how fast we respond
A coexistence agreement is drafted, not quoted off a list. What drives the cost is the number of classes and territories in play, whether a distributor or licensee sits between the two businesses, whether the other party's proposal already assumes admissions you have not checked, and whether a filing or opposition deadline is already running against you.
A partner replies to a first message within minutes during business hours. A scoped estimate for reviewing or drafting the agreement follows within one working day, once the actual proposal is in front of us.
Sources and the limit of this page
This page sets out the mechanics of a coexistence agreement inside the EU trade mark system. It does not value your specific proposal, and it does not replace a jurisdiction-specific scoping report. For a sense of how such a report reads once a deadline is already fixed, see Asset in Hungary and the deadline.
Checked against the sources below at the time of publication. Sources: Regulation (EU) 2017/1001 (EUTMR); Regulation (EU) No 608/2013.
Related publications
On a closely related question: When a design is copied by a competitor step covers what happens once coexistence tips over into infringement.
Frequently asked questions
What is the first step when a coexistence agreement is proposed?
Map the actual conflict before responding. Compare the classes, goods and territories named in the proposal against your existing and pending filings, then decide how far consent should reach.
Which deadline is already running?
If the proposal follows a pending application by the other party, an opposition or observation period tied to that application is usually the deadline already running. Its length is fixed by the office handling that application, not by the coexistence agreement.
Who decides, and on what evidence?
The trade mark office decides whether a letter of consent resolves the relative ground it is meant to address. If the dispute later reaches a court, the court decides how much weight the coexistence agreement carries as evidence of similarity between the marks.