Two Owners, One Mark: Concurrent Use and the Geography of Coexistence
By Casey Scott McKay ·
American trademark law is unusual in allowing two unrelated companies to own federal registrations for the same mark, each limited to its own slice of the country. This article explains how that happens, why the Board built the doctrine around good faith and actual trade areas rather than raw priority, and why the internet has made the resulting maps harder to draw without making the doctrine obsolete. It covers the jurisdictional prerequisites that kill most concurrent use applications before anyone reaches the merits, the Weiner King factors the Board actually applies, and the difference between a concurrent use registration and a private coexistence agreement - which are not the same thing and are frequently confused by people negotiating one while thinking about the other. It closes with what a consent agreement has to contain to persuade an examiner after Bay State Brewing, and with the practical question of what happens when one party grows.
IP and Technology > Trademarks | Article | Published 27 October 2023 - Updated 19 June 2026 | Casey Scott McKay - marksy.us
Summary. American trademark law is unusual in allowing two unrelated companies to own federal registrations for the same mark, each limited to its own slice of the country. This article explains how that happens, why the Board built the doctrine around good faith and actual trade areas rather than raw priority, and why the internet has made the resulting maps harder to draw without making the doctrine obsolete. It covers the jurisdictional prerequisites that kill most concurrent use applications before anyone reaches the merits, the Weiner King factors the Board actually applies, and the difference between a concurrent use registration and a private coexistence agreement — which are not the same thing and are frequently confused by people negotiating one while thinking about the other. It closes with what a consent agreement has to contain to persuade an examiner after Bay State Brewing, and with the practical question of what happens when one party grows.
Keywords: concurrent use registration · section 2(d) proviso · in re beatrice foods · weiner king factors · territorial restriction registration · good faith adoption · tea rose rectanus · dawn donut rule · consent agreement du pont · in re bay state brewing · naked consent · ttab concurrent use proceeding · coexistence agreement · geographic carve-out · internet and territory · franchise expansion conflict · trade area evidence · jurisdictional requirements 2.99 · court-ordered concurrent rights · brand equity split
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