What Is a Coexistence Agreement?

A coexistence agreement is a contract between two trademark owners agreeing that their marks can coexist in the marketplace despite some similarity. The parties agree on the scope of their respective rights, geographic limitations, and product categories, removing the conflict that would otherwise block registration.

CNIPA's Attitude Toward Coexistence Agreements

CNIPA's approach has evolved. Historically, examiners gave little weight to private coexistence agreements on the theory that trademark law protects the public from confusion, not just the rights holders. However, recent CNIPA and court decisions show growing acceptance when:

• The marks are not highly similar
• The goods/services are not highly similar
• The agreement includes consumer protection measures
• There is no evidence of actual confusion
• The parties are not competitors with conflicting interests

When Coexistence Agreements Work

1. Different Geographic Markets

One party operates in China, the other primarily abroad. If their Chinese market presence is minimal, coexistence with geographic restrictions is feasible.

2. Different Consumer Demographics

One brand sells luxury goods, the other mass-market products. Different price points and distribution channels reduce confusion risk.

3. Related but Not Competing Products

Two companies with similar marks in related but non-competing product categories may agree to coexist with clearly defined boundaries.

Key Terms to Include

• Scope of rights: Precisely define what each party can and cannot do — goods/services, geographic areas, and channels of trade
• Consumer confusion measures: Agreements to use distinguishing elements, disclaimers, or distinctive packaging
• Non-opposition clause: Each party agrees not to oppose the other's applications or challenge their registrations
• Enforcement cooperation: Procedures for addressing third-party infringers that affect both parties
• Term and termination: Duration (often perpetual) and termination triggers (material breach, change of control)
• Governing law and dispute resolution: Chinese law preferred for marks registered in China

Procedure for Using a Coexistence Agreement with CNIPA

1. When filing a new application blocked by a prior mark, submit the coexistence agreement as part of your arguments
2. CNIPA may accept it and approve your application
3. Alternatively, the prior rights holder (your coexistence partner) can file a letter of consent directly with CNIPA

Note: CNIPA is not bound by the agreement. Even with a coexistence agreement, they can reject the application if they believe consumer confusion is likely. However, a well-drafted agreement significantly increases approval chances.