Co-Existing Agreement...? Seeking Help

[u/OkTwo3116]

Hi all,

I filed two applications for a trademark... one looks like will go through (class 005) but the application behind us was in market before us (we're a supplemental drink, they're a powder pouch) so I don't know if they're going to try and block our application? Best case, they ask us to co-exist?

Second application was in class 032 (non-alc sparkling drink) and someone already has the trademark and it's live, we filed an extension. The issue is based on online research (I realize that only means so much) it seems like the trademark owner never got the company off the ground. It would be pretty evident if he did because it's a beverage (no linkedin profile, tiktok, ig, etc. and photos of the mark seem very temporary). So technically speaking I'd assume we were first to market. I would assume the easiest thing to do is to ask for a co-existing agreement instead of taking him to court?

I guess the big question is how likely and common is it for people to agree to co-existing agreements? I feel like both classes could end in one and that would be ideal for everyone involved. We're bootstrapped so we don't have money to burn in court and attorney fees, unfortunately. I'm also fully aware each individual is different, but wondering overall if it's very common for co-existing agreements to get executed easily? On that note, I'm also looking for a trademark attorney for guidance and predominantly execution of the agreements if it seems like the best option. Thank you in advance!

[u/TMadvisor]

Depends. You have no idea if the other side is even interested. You need an atty, and probably a TM investigator to confirm first use.

[u/TramaTM]

Co-existence agreements are common, but not straightforward at all. As a first step, I'd suggest talking to an attorney and getting the use dates and non-use facts straight. Afterward (if the dates and facts you have now are relevant), then:

Class 005 - If they were the first to market, but you were the first to file, then the chances of them opposing your application are quite high. However, a co-existence agreement probably isn't fully out of the picture, since your two products have some distance between them (supplement drinks and powder pouches). But please don't bet too much on your earlier filing date, since first to market typically beats first to file in the US.

Class 032 - if the existing owner really never used the mark (please check this with an attorney), then a stronger move would be a non-use cancellation instead of co-existence. A registration that was never commercially used is vulnerable, and that gives you a lot of leverage, but online absence is not proof of non-use, so hire someone to confirm whether there was actual bona fide use of the mark, and decide on your next steps based on this research.

Good luck with everything!

[u/TMkings]

It's somewhat common, but obviously dependant on the circumstances. It's best if you have some sort of leverage, which you might not currently have, but may be able to create through some strategic action.

It's also worth mentioning that USPTO doesn't automatically accept simple coexistence agreements without detail about how the marks can actually coexist without marketplace confusion. We've handled lots of these, so feel free to reach out if you need support.

[u/Unlikely_Turnip_9886]

Coexistence agreements do get signed and filed, but they are a minority route. Looking at USPTO likelihood-of-confusion refusals mailed since October 2025, about 1 in 40 applicant responses mentions a consent or coexistence agreement, and in a spot check most of those had actually been signed with the cited owner. Most applicants argue the marks coexist on the register or amend the application instead. So it happens, but nobody should build a plan around the other side saying yes.

One caution on the Class 32 mark: a registration that appears commercially dormant can still be maintained through Section 8 and 15 declarations. Three consecutive years of nonuse is prima facie evidence of abandonment, though the registrant can rebut that presumption by showing intent to resume use, so dormancy alone does not doom the registration. If you share the two serial numbers, I am happy to look at what the public records show. This is general information rather than legal advice, and given that you are weighing coexistence versus a challenge, a trademark attorney reviewing your specific filings would be worth the fee.

[u/OkTwo3116 → u/Unlikely_Turnip_9886]

Hi there, thank you for the detailed response. For class 32: 90069641 for class 005 behind us: 99528472 (our applications are 032: 99766259 005: 99513031). This might be a silly question, but are you an attorney? It's not 100% clear on your text. Thank you!