Problems begin when this distinguishing function no longer works, because the companies for which the trademarks were originally used begin to overlap. Thus, brands that once happily co-exist, suddenly find themselves in conflict. This is particularly frustrating if both companies use their identical brands in good faith – in other words, where they both have a track record of the actual use of their respective brands, but are starting to turn to each other`s territories because of business expansion. In some cases, if two companies know that they are using similar or identical brands, they may opt for a formal co-existence agreement to prevent the future use of the two brands from overlapping to the point of making them undesirable or hurtful. This article describes the situations in which coexistence can occur and introduces a number of points to be taken into account when considering a co-existence agreement. A party that is clearly a disciple brand user (not the first party to use a trademark) may have no choice but to seek an acceptance agreement from the older user of the mark (the first party that usually uses and registers a trademark in the trade). However, if the bargaining power between the parties is more regular, a co-existence agreement detailing the issues important to both parties is probably in the interest of all. The bargaining power for the use of the trademark can be created by the status of an older user, by a known or known brand, or by the ownership of additional trademarks that the other party may be interested in limiting. A company that wants to expand into new regions, sectors, lines or brands should insist that a co-existence agreement be concluded instead of an approval agreement.
This allows the company to address the potential risks they are likely to become visible in the future and pave the way for more favourable growth. An approval agreement merely authorizes the current use, without worrying about the inevitable development of trademarks. An agreement on the coexistence of trademarks should clearly include: all parties to the agreement, the trademarks or logos indicated to co-exist, an agreement on the domain names used by each party, a list of the areas and geographical areas that contain the trademarks or logos in which coexistence is permitted and prohibited, as well as all relevant plans for the expansion of the company. In addition, the co-existence agreement should include the start and end date of the agreement, a clause relating to the jurisdiction of the agreement and a dispute settlement clause.