When two businesses use the same or a similar trademark, the first assumption is often that one of them must stop. In some cases that is true. In others, however, trademark law allows both parties to continue using the trademark if the facts show that consumers are not likely to be confused and the parties can define clear boundaries for use. That is where a trademark concurrent use agreement can become an important legal and business tool.
A trademark concurrent use agreement is not simply a private understanding that each side will stay in its own lane. It is a carefully structured business agreement that can support a geographically restricted trademark registration in the United States. Rather than treating trademark rights as automatically nationwide in every circumstance, the concurrent use framework recognizes that businesses sometimes develop rights in different places, under different market conditions, and without bad faith. When that happens, a properly drafted agreement can help preserve brand value, reduce litigation risk, and create a practical path forward.
What Is a Trademark Concurrent Use Agreement?
A trademark concurrent use agreement is a business contract between parties using the same or similar trademarks that defines how both can continue operating without creating a likelihood of confusion. In most cases, the agreement addresses where each party may use the trademark, which goods or services each party may offer, and what steps will be taken to keep the brands distinct in the marketplace.
This type of agreement is especially important because federal trademark rights are generally presumed to be nationwide. Concurrent use is the exception. A business seeking a geographically restricted federal registration must usually show that the proposed arrangement reflects real-world marketplace conditions and that consumers are not likely to be misled. The agreement is therefore not just a business compromise. It is often part of the legal foundation for securing limited registration rights before the United States Patent and Trademark Office or in a proceeding before the Trademark Trial and Appeal Board.
When Businesses Commonly Need a Concurrent Use Strategy
For many businesses, the issue arises during the trademark search and clearance process. A company may discover that another business has been using a similar trademark in another part of the country for years. In other situations, the problem appears only after a trademark application is filed and the USPTO issues a refusal based on an allegedly conflicting registration or application.
A concurrent use strategy can also become relevant when both parties adopted their trademarks in good faith and developed separate customer bases before learning of each other. Instead of forcing one side into a costly rebrand or inviting lengthy litigation, the parties may be able to negotiate boundaries that reflect how they actually do business. When the facts support it, this approach can allow both companies to continue using valuable branding while reducing legal uncertainty.
How Concurrent Use Differs From Consent and Coexistence Agreements
Clients often hear the terms consent agreement, coexistence agreement, and concurrent use agreement used in similar discussions, but they are not the same thing. A consent agreement usually focuses on one party allowing another party to register or continue using a trademark, often subject to certain protective measures. A coexistence agreement is broader and may address branding rules, product differences, territories, and operational restrictions.
A concurrent use agreement is more specialized. Its purpose is to support a situation in which similar marks may continue to exist under defined limitations, often with the goal of obtaining a geographically restricted federal registration. In other words, it is not just about resolving a dispute privately. It is also about creating an arrangement that may be recognized in the federal trademark system itself.
The Legal Framework Behind Concurrent Use
Concurrent use exists within a narrow part of United States trademark law. Because federal trademark registrations ordinarily carry nationwide significance, a party seeking a restricted registration must present a persuasive factual and legal record. Good-faith adoption is important. Geographic separation is important. The absence of meaningful consumer confusion is important. The tribunal will also examine whether the proposed boundaries are workable in actual commerce rather than merely attractive on paper.
This is why drafting matters so much. A vague agreement that does not match marketplace realities is far less persuasive than one that shows thoughtful, measurable, and enforceable divisions between the parties. If a business wants the agreement to support trademark prosecution or a TTAB proceeding, the document should be built with that scrutiny in mind from the start.
Why Careful Drafting Matters
A strong concurrent use agreement should begin by clearly identifying the parties and specifying who is bound. That may include parent companies, subsidiaries, affiliates, licensees, franchisees, distributors, successors, and assigns. If the concurrent use agreement leaves important related entities outside its reach, it can become difficult to enforce and less persuasive in a formal trademark proceeding.
The concurrent use agreement should also define the relevant trademarks with precision. That includes the word mark itself, stylized versions, logos, taglines, and foreseeable branding variations. Precision is essential because confusion often arises not from the main trademark alone, but from how the trademark appears in actual use across packaging, advertising, signage, and digital channels.
Defining Geographic Boundaries the Right Way
In most concurrent use matters, geography is the core issue. But geography needs to be defined with care. General statements that one party will operate in the “East” and the other in the “West” are rarely enough. Boundaries should be specific, objective, and manageable. Depending on the facts, that may mean states, counties, metropolitan areas, zip codes, or mileage radiuses around existing locations.
The best territorial restrictions are the ones the parties can monitor and enforce in practice. A line that sounds reasonable but cannot be measured will often create new disputes later. Clear geographic definitions also help demonstrate to the USPTO or TTAB that the arrangement is realistic and not merely theoretical.
Limiting Goods, Services, and Channels of Trade
Geography alone does not always solve the problem. Two businesses may operate under similar trademarks in related industries, but still reduce confusion through differences in goods, services, channels of trade, and customer base. One company may focus on wholesale transactions, while the other sells directly to consumers. One may serve a local market, while the other offers a more specialized commercial service.
A well-drafted concurrent use agreement should reflect these distinctions clearly. It should explain not only what each party offers, but how those offerings reach the marketplace. When the agreement aligns with actual business operations, it is more likely to be durable and more likely to support a restricted registration strategy.
Addressing Online Use and Digital Overlap
No modern trademark agreement is complete if it ignores the internet. Even when businesses are physically far apart, online marketing can erase that distance very quickly. Websites, e-commerce platforms, domain names, social media handles, paid search campaigns, and marketplace listings can all create overlap if they are not addressed directly.
For that reason, a strong concurrent use agreement should account for how each party may appear online. It may address territorial ad targeting, search engine keyword restrictions, social media naming conventions, online marketplace categories, and procedures for minimizing digital confusion. Businesses that overlook online use often find that geographic separation alone is not enough to prevent brand conflict.
Operational Rules That Help Prevent Consumer Confusion
Some of the most effective concurrent use agreements go beyond territory and product descriptions and address how the brands will remain distinct in everyday use. That may include requiring a house trademark to appear with the shared term, limiting particular logo presentations, adopting disclaimers in selected settings, or creating procedures for responding to misdirected customer contacts.
These details matter because they show that the parties are not simply dividing rights in the abstract. They are actively shaping consumer-facing practices to reduce confusion. That can make the concurrent use agreement more effective in daily business operations and more credible if later reviewed by the USPTO, the TTAB, or a court.
Planning for Growth and Future Change
A concurrent use agreement should not be drafted only for current operations. Businesses expand, launch new services, shift marketing strategies, and move into new sales channels. A short-term agreement may become unworkable if it does not account for change.
That is why forward-looking provisions are so important. The agreement should often include notice requirements for expansion, procedures for requesting approval for new territories or services, dispute resolution mechanisms, and practical methods for revising the arrangement over time. Without those features, even a sensible agreement can become a source of conflict once one or both parties evolve.
What Evidence Supports a Concurrent Use Position?
When a concurrent use strategy is being used to support a trademark application or TTAB proceeding, evidence is critical. The agreement itself is important, but the strength of the arrangement usually depends on whether the factual record shows that the proposed limitations reflect real marketplace conditions.
Helpful evidence may include sales history by geographic area, advertising footprints, website analytics, declarations regarding dates and areas of use, digital marketing records, screenshots of marketplace activity, and documentation showing the presence or absence of actual confusion. A long period of side-by-side use without meaningful confusion can be especially persuasive if it is documented properly and tied to the specific limitations being proposed.
The Benefits and Tradeoffs of a Concurrent Use Agreement
A concurrent use agreement can offer significant benefits. It may help a business preserve a valuable brand, avoid expensive litigation, and create a path to limited federal registration where nationwide rights are not realistic. It can also provide clearer operating rules and reduce uncertainty for both sides.
At the same time, these agreements involve tradeoffs. A business may be accepting restrictions on future expansion. It may need permission before entering new territories or launching related offerings. There is also the possibility of reputational spillover if another company using a similar trademark delivers a poor customer experience. Although a strong agreement reduces risk, it cannot guarantee that confusion will never happen. The decision to pursue concurrent use should therefore be based on both legal analysis and business priorities.
Common Mistakes Businesses Make
One of the most common mistakes is using vague geographic descriptions that no one can realistically enforce. Another is failing to address digital use, which can undermine the entire purpose of the arrangement. Businesses also sometimes forget to bind affiliates, licensees, franchisees, or distributors, leaving major gaps in the agreement’s coverage.
Another frequent problem is inadequate evidence. Some parties assume that a signed agreement alone will be enough to support their position. In many cases, it is not. A stronger approach is to build the agreement and the evidentiary record together so the legal strategy is supported by real-world facts from the beginning.
Trademark Legal Assistance
If your business has received a likelihood of confusion refusal, discovered a conflicting user in another region, or needs a practical strategy to divide trademark rights without abandoning an important brand, a trademark concurrent use agreement may offer a viable solution. In the right case, it can preserve goodwill, reduce litigation risk, and create a clearer path to enforceable rights.
The key is making sure the concurrent use agreement is not only technically sound, but strategically drafted for how brands compete in the modern marketplace. A concurrent use matter should never be approached as a generic template exercise. It requires careful legal analysis, practical business judgment, and drafting that anticipates both present operations and future change. If you or your business would like trademark assistance, please contact our firm using our contact form or giving us a call. We make every effort to respond to all inquiries within one business day.