Settling a Trademark Dispute: A Practitioner's Guide to Coexistence Terms, Consent Judgments, and Enforcement
By Casey Scott McKay ·
This guide runs a trademark settlement from the first valuation memo to the enforcement motion three years later, and it is written on the premise that the agreement is not a release but a long-term operating agreement between competitors. The early stages price the deal - the cost of the fight, the realistic recovery, the rebranding alternative, and the corporate calendar - on the one page that actually moves clients. The middle stages are drafting: scope defined by goods, channel, and presentation rather than adjectives, with model language; the phase-out schedule with a capped sell-through and a sworn inventory; quality provisions that work between adversaries without creating a naked license; and the change-of-control clause that decides whether any of it survives an acquisition. The papering stage covers the hybrid structure and the two sentences that make a consent judgment enforceable. The last stages cover living with it and enforcing it.
IP and Technology > Trademarks | Guide | Published 21 October 2023 - Updated 6 February 2026 | Casey Scott McKay - marksy.us
Summary. This guide runs a trademark settlement from the first valuation memo to the enforcement motion three years later, and it is written on the premise that the agreement is not a release but a long-term operating agreement between competitors. The early stages price the deal — the cost of the fight, the realistic recovery, the rebranding alternative, and the corporate calendar — on the one page that actually moves clients. The middle stages are drafting: scope defined by goods, channel, and presentation rather than adjectives, with model language; the phase-out schedule with a capped sell-through and a sworn inventory; quality provisions that work between adversaries without creating a naked license; and the change-of-control clause that decides whether any of it survives an acquisition. The papering stage covers the hybrid structure and the two sentences that make a consent judgment enforceable. The last stages cover living with it and enforcing it.
Keywords: trademark settlement drafting · coexistence scope clause · goods and channel definitions · phase-out schedule · sell-through cap · sworn inventory exhibit · consent judgment drafting · rule 65(d) specificity · kokkonen retained jurisdiction · naked license avoidance · quality specification exhibit · change of control clause · notice and cure mechanism · liquidated damages trademark · antitrust ancillary restraint · consent to registration · board dismissal with prejudice · domain and handle transfer mechanics · settlement enforcement contempt · one-page business summary
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