Two companies can end up with similar trademarks for completely innocent reasons. Maybe the products are different, the customers are different, or the brands have developed in separate lanes for years. When that overlap triggers a conflict—especially a USPTO likelihood-of-confusion refusal—there is often a practical solution that avoids a lawsuit and protects both sides: a well-built trademark consent agreement.
This page explains what a consent agreement is, how it differs from related arrangements, when it’s worth pursuing, what makes one persuasive to the USPTO, and how our trademark team typically approaches negotiations and drafting so the consent agreement works in real life—not just on paper.
What is a Trademark Consent Agreement?
A trademark consent agreement is a written contract between two trademark owners (or applicants) where one party—often the owner of the earlier registration—agrees that the other party may use and/or register a similar trademark. But the strongest consents do not stop at “we consent.” They lay out the why and the how: why confusion is unlikely in the marketplace and how both businesses will operate in a way that keeps it that way.
Companies use consent agreements for three common reasons:
First, parties can defuse a conflict without litigation, escalation, or a forced rebrand. Second, they can help overcome a USPTO refusal based on “likelihood of confusion” under Section 2(d) of the Trademark Act. Third, they function as a forward-looking set of guardrails—rules for branding, marketing, channels of trade, and expansion—so the same issue does not pop up again as both brands grow.
At the USPTO, a consent agreement is evidence. Examining attorneys apply the “du Pont” likelihood-of-confusion factors and may treat a credible, detailed consent as a meaningful datapoint. But the USPTO is not obligated to accept every consent, and bare, conclusory letters usually don’t carry much weight. In other words: the quality of the consent matters as much as the fact that it exists.
Consent vs. Coexistence vs. Concurrent Use: How These Terms Differ
These phrases get used interchangeably online, but they are not the same thing.
A consent agreement is focused on permission to register and the measures that prevent confusion. It typically includes facts about the parties’ trademarks and how they operate, plus concrete commitments designed to keep customers from mixing them up.
A coexistence agreement is often broader and more operational. It may cover product boundaries, channels, advertising practices, domain and social handle rules, and expansion procedures. Many of the best “consents” look a lot like narrow coexistence agreements because they contain the operational detail the USPTO finds persuasive.
A concurrent use proceeding is different. It’s a USPTO procedure that can result in registrations limited by geography, usually where each party has good-faith use in separate territories. Instead of relying primarily on private contract terms, concurrent use is about drawing territorial lines in the registrations themselves.
When Does a Consent Agreement Make Sense?
Consent agreements are not a fit for every trademark conflict, but they are often worth exploring in these situations.
The most common scenario is after a Section 2(d) likelihood of confusion refusal. If the examining attorney cites a prior trademark registration that is close enough to create a confusion concern, negotiating consent from the earlier registrant can be an efficient path to get the application moving again—especially where the parties already operate in different channels, offer meaningfully different goods/services, or use distinct brand presentations.
A second scenario is before you file, during clearance. If your trademark search shows a potentially blocking registration, getting consent early can save months of delay and can reduce the risk that your trademark application becomes a public flashpoint.
A third scenario is settlement of disputes, including TTAB oppositions/cancellations or demand-letter situations. A well-structured consent/coexistence deal can settle the fight while preserving business momentum.
A fourth scenario comes up during deals and growth—acquisitions, licensing, product-line expansion, or entry into new states or channels. When overlap is spotted early, a consent can reduce risk before launch or closing.
A practical example: imagine a regional restaurant group using a trademark that overlaps with a software platform’s trademark. The words might be close, but the customers, purchasing process, price points, and marketing channels may be worlds apart. That’s the kind of fact pattern where a detailed consent can be both commercially sensible and legally helpful.
What the USPTO Expects (and Why “Naked” Consents Often Fail)
The USPTO is looking for more than a handshake. A persuasive consent agreement usually has two pillars:
1) A fact-based explanation of why confusion is unlikely.
The consent agreement should identify the specific trademarks and outline the real-world differences that matter: the nature of the goods/services, the typical customer, how purchases happen, pricing and buyer sophistication, the marketing channels used, and how the marks appear in actual branding. If geography matters, the consent agreement should describe where each party currently operates and what guardrails exist for expansion.
2) Concrete commitments that reduce confusion risk.
This is what separates a persuasive consent agreement from a thin one. The best consent agreements include practical steps that make confusion less likely in everyday commerce—the kind of details an examining attorney can take seriously.
A short letter that says “we consent” (sometimes called a “naked” consent) is usually weak because it gives the USPTO no reason to believe confusion is actually unlikely. A strong consent reads like a credible plan to keep the marketplace orderly.
What a Strong Consent Agreement Typically Includes
Every deal is different, but effective consent agreements commonly address the following topics in a way that is specific to the parties’ actual business models.
Does a Consent Agreement Guarantee Registration?
No. A consent agreement can be persuasive, but it does not automatically override the USPTO’s obligation to protect consumers from confusion. If the trademarks and goods/services are extremely close and the record otherwise points strongly toward confusion, an examining attorney may still maintain the refusal.
That said, a detailed, credible consent that lines up with the marketplace facts often makes a real difference. Practically speaking, the consent agreements that succeed tend to do two things well: they explain why confusion is unlikely and they include specific commitments that keep it unlikely.
Confidentiality: Do You Have to File the Whole Agreement?
Not always. The USPTO generally needs to see the portions that relate to trademark use, marketplace context, and confusion-avoidance commitments. Sensitive commercial terms (pricing, vendor information, customer lists, financial terms) are often unnecessary for the USPTO record.
A common approach is to structure the agreement so trademark-relevant provisions are in the main document, while confidential business details are placed in a separate schedule that is not submitted to the USPTO—when that structure fits the deal and the examiner still gets what they need to evaluate confusion.
What if the Other Party Refuses to Consent?
If consent isn’t available, there may still be workable paths forward.
Sometimes a targeted change—narrowing the goods/services, adjusting the trademark presentation, adding a house mark, or shifting branding emphasis—creates enough distance to resolve the refusal. In other cases, a strong legal response under the du Pont factors (without consent) can persuade the USPTO that confusion is unlikely based on the evidence.
Where geography is truly central and both parties have lawful use in different territories, a concurrent use strategy may be worth evaluating. And occasionally, if the risk is high and the business needs speed, a strategic rebrand is the most cost-effective option. The right choice depends on timing, budget, and the importance of the brand asset.
How Our Trademark Attorneys Help
Our goal is to produce a consent agreement that works on two levels at once: it needs to be acceptable to the counterparty and credible to the USPTO. We typically start with a focused review of the trademark application, the cited registration(s) causing confusion, and the real marketplace facts—what’s being sold, to whom, how customers find it, and where the marks overlap (or don’t).
From there, we draft a business-forward proposal that frames consent as a mutual solution rather than a concession. We emphasize verifiable commitments that are easy to follow in day-to-day operations—especially in digital advertising and online sales—because that’s where confusion issues often arise in practice.
Once the consent agreement is signed, we prepare the USPTO submission in a way that ties the consent’s facts and commitments to the likelihood-of-confusion analysis. If the examining attorney asks questions, we respond with the same fact-based approach, and we help clients keep the consent agreement current as businesses expand into new products, platforms, or territories.
A Practical Note on Expectations
Consent agreements are powerful tools, but they are not magic. If the trademarks are nearly identical, the goods/services are identical, and both parties are competing in the same channel at the same price point, the USPTO may still view confusion as likely—unless the consent agreement contains truly robust separation measures that match the reality of how customers encounter the brands.
That’s why we treat consent drafting as both a legal document and an operating manual: it should read like a credible plan that real businesses can follow and enforce.
Next Steps
If you are facing a Section 2(d) likelihood of confusion refusal, anticipating conflict during clearance, or trying to resolve a trademark dispute without dragging your business into a prolonged fight, a consent agreement may be the most efficient path. The key is building it around real marketplace facts and practical commitments that reduce confusion risk.
