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 contractual business arrangements, when it’s worth pursuing, what makes one persuasive to the USPTO, and how our trademark attorneys typically approach negotiations and drafting so the consent agreement works in real life—not just on paper.
Trademark Consent Agreements at the USPTO
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:
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.
When Does a Consent Agreement Make Sense?
Consent agreements are not a fit for every 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 federal 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 trademark 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 trademark disputes, including TTAB oppositions and TTAB 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 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 consents commonly address the following topics in a way that is specific to the parties’ actual business models.
Clear identification of the parties and marks.
The consent agreement should name the legal entities and identify the exact marks covered (word marks, stylized versions, logos). If design matters, it can help to attach depictions or specimens.
A marketplace narrative that matches reality.
This section explains what each party sells, who buys it, how customers find it, and how the marks show up “in the wild.” The more verifiable and plain-spoken, the better.
Brand-presentation guardrails.
Common (and useful) commitments include consistent use of a house mark, use of distinctive logos or stylization, and brand attribution where customers could plausibly encounter both. For online commerce, the agreement often addresses how marks appear on websites, landing pages, packaging, and key marketplaces.
Digital identity rules.
Because modern confusion often happens through search and social, many agreements address domain names, social media handles, and marketplace seller pages. For some businesses, paid search (including keyword targeting) is a recurring source of conflict; where appropriate, the agreement can set rules to reduce accidental customer capture.
Channel, product, or service boundaries.
Sometimes the cleanest way to keep confusion low is to commit to staying in different lanes. That might mean limits on certain product categories, certain platforms, or certain industries—paired with a process for requesting consent if a party later wants to expand.
Geography (when it genuinely matters).
If the businesses operate in different regions or have different service territories, the agreement can reflect those realities and explain how changes will be handled.
Quality control (when the deal starts to look like licensing).
If one party’s consent effectively authorizes the other’s use in a way that resembles a license or close affiliation, quality-control provisions may be important to protect the senior brand and avoid “naked licensing” arguments later. This is not required in every consent, but it becomes more important as the relationship gets closer.
A plan for the “confusion signals.”
Even careful brands occasionally get a misdirected email, a wrong delivery, a customer complaint meant for the other company, or a social message that shows mix-ups. A strong agreement sets a simple process: prompt notice, cooperation, and reasonable corrective steps.
USPTO cooperation.
If the consent is intended to support a pending application, the agreement can include practical cooperation terms—signing a consent letter for the record, providing limited declarations if needed, and coordinating on responses if the examiner asks follow-up questions.
Term, termination, and enforcement.
These sections matter because the agreement is a contract. A good consent explains how long it lasts, what constitutes a breach, how disputes get resolved, and what happens to pending applications or registrations if the agreement ends.
Does a Consent Agreement Guarantee Trademark 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 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 mark 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), 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 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 marks 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 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) 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. Contact our trademark attorneys to see how we can assist with your trademark matter. We make every effort to respond to all inquiries within one business day.