Glossary
French: accord de coexistence
A coexistence agreement (accord de coexistence or contrat de coexistence) organizes the parallel existence of two similar trademarks by defining rules under which each may be used without conflict. The concept will be familiar to US practitioners — it is the French/EU counterpart of the consent or coexistence agreements negotiated in US practice — and it plays the same role: allowing the marks to coexist without public confusion, and avoiding or ending a dispute.
Under French practice, the agreement may include provisions on:
The agreement should address not only the current situation but also anticipate new modes of communication: a provision drafted around traditional retail and print advertising can look badly outdated within a few years once e-commerce, social media or new product lines enter the picture, so well-drafted agreements build in flexibility or a review mechanism rather than freezing the parties into today’s business models.
A coexistence agreement can result from a contract signed by both trademark owners, or even from an exchange of letters if the terms are sufficiently precise. It is often reached through negotiation or mediation, including during the suspension periods available in French opposition proceedings (see INPI opposition) or the “cooling-off” period built into EUIPO opposition proceedings — both mechanisms exist precisely to give the parties time to negotiate this kind of settlement instead of litigating to a decision.
A coexistence agreement between the parties is not binding on the INPI’s or EUIPO’s examination process itself — it cannot, for example, force through a mark that otherwise lacks distinctive character — but it is highly relevant once an opposition is pending, since it typically leads the opponent to withdraw or the parties to jointly request a suspension while they finalize terms. Coexistence agreements can also be used proactively, before any conflict, when a company clearing a new brand identifies an earlier similar mark it would rather negotiate around than challenge or risk being challenged by.
The reasoning mirrors US practice, where the USPTO and courts give weight to genuine coexistence and consent agreements between sophisticated parties as evidence that consumer confusion is unlikely in the marketplace. The main difference is procedural rather than substantive: because French and EU opposition proceedings build in a dedicated negotiation window (suspension or cooling-off) that US practice does not offer in the same systematic way, coexistence agreements tend to be negotiated earlier and more routinely in the European process — often before either side has spent significantly on the dispute.
Its practical benefit is to remove legal uncertainty and avoid the cost of a trademark opposition or infringement litigation. That said, a coexistence agreement is not suitable for every situation — where the marks are too close, coexistence may simply not be workable, since no contract between the parties can bind third-party consumers not to be confused.
Coexistence agreements come up most often in responding to a trademark opposition and in amicable settlement of trademark disputes — they are frequently the practical off-ramp from a pending opposition once the parties would rather negotiate than litigate to a decision. See also trademark opposition and likelihood of confusion.