Coexistence negotiation: documents to prepare
A coexistence negotiation settles who may use a similar mark, in which territory and for which goods, without either side filing an opposition or a cancellation action. Before the first letter goes out, a company needs a comparison file, proof of use, a mandate to negotiate, and a draft term sheet. Missing any one item slows the exchange by weeks.
What changes once coexistence talks start
Opening a coexistence conversation pauses no deadline. The opposition period, or the response window in a parallel office proceeding, keeps running while the parties talk. A company that starts negotiating without checking the calendar can lose the right to oppose or to respond, even if the talks are going well. The safer practice is to file a protective step — an extension request or a formal response — before or alongside the first outreach.
Documents to prepare
| Document | Purpose | Who prepares it |
|---|---|---|
| Comparison file | Sets out marks, goods or services, and territories side by side; defines the scope of the talk | Trade mark team or outside counsel |
| Proof of use | Shows each side's actual market position, not just what is registered | Marketing and sales records, assembled by the business |
| Negotiation mandate | Confirms who may bind the company, and up to what limit | Director or another authorised officer, in writing |
| Draft agreement or term sheet | Gives the other side something concrete to react to, instead of a blank page | Counsel, on business instructions |
| Corporate chain document | Confirms the negotiating entity actually owns or controls the right, where a group holds it | Legal or corporate team |
| Confidentiality undertaking | Protects commercial terms discussed ahead of signature | Both sides, exchanged before substantive talks |
Steps to take before you approach the other side
- Instruct the trade mark team to build the comparison file first: mark, class, territory, actual use.
- Confirm the internal mandate before any contact starts, not after a call has already happened.
- Draft the coexistence agreement skeleton early. A term sheet with blank figures is easier to negotiate than a blank page, and the agreement itself is a contract: the same Acceptance in technology contracts logic governs when its terms bind either side.
- Set an internal deadline that respects the office calendar, not only your own convenience.
- Route the first letter through counsel, not through the brand or marketing team.
- Keep a paper trail: every draft, every counter-mark, every date exchanged with the other side.
Who decides, and by when
There is no decision-maker inside a coexistence negotiation itself: the parties decide, or they do not. A decision-maker sits in the parallel proceeding that keeps running regardless — the office examining an opposition, the body handling a cancellation request, or the customs authority holding goods at the border. Each keeps its own clock, and the negotiation does not stop it.
If your situation differs
If the dispute has already moved into enforcement — for example, a seizure or inspection step at a warehouse — the calculus changes. See Seizure and inspection measures for what a decision-maker checks before granting one.
If the mark in dispute sells a tokenised or digital product, proving actual use follows the same evidentiary logic as showing supply in another regime; see What supply token issuance how it is proved means for the parallel problem elsewhere.
If your counterpart is a holding company rather than the trading entity, ask for the corporate chain document before the first substantive call, not after it.
What this page does not cover
This page does not cover the tax or accounting consequences of a coexistence deal, and it does not set out what the agreement is worth to either side. A common preparatory step, when the other side is registered abroad, is checking what can actually be established about its assets before talks open; see Asset in Latvia in detail.
Related reading
A coexistence negotiation sometimes turns into a dispute over interim measures once talks stall. The documents needed at that stage differ; see How interim relief in brand disputes trade mark documents.
Checked
Checked 14 May 2025. This page describes filing and negotiation practice as followed by national and EU trade mark offices. It cites no specific statute or regulation number, because the steps set out here come from office practice rather than from statutory text.
FAQ
How long does coexistence negotiation take in practice?
There is no fixed timeline. A straightforward case, with clear ownership and low commercial stakes, can close within weeks once both mandates are confirmed. A case spanning several territories, or running alongside an active office proceeding, regularly takes months, because each deadline forces a pause for internal sign-off.
Which documents are needed to start?
At minimum: the comparison file, proof of use on each side, and a signed mandate to negotiate. Everything else — the term sheet, the confidentiality undertaking, the corporate chain document — can follow once contact is made, but these three should exist before the first letter goes out.
What happens if the other side does not respond?
Silence does not pause a parallel proceeding. If an opposition or a cancellation request is running, its deadline keeps moving regardless of the other side's silence. Send a written follow-up with a stated deadline, and file the protective step in the office proceeding if no answer arrives in time.
Getting the documents wrong before contact is made rarely shows up as a lost case. It shows up as a worse deal, reached later than it should have been. For a plain account of what that costs in a related situation, see What it costs to be wrong in this situation.