In Russell Road Food & Beverage v. Spencer 829 F.3d 1152 (9th Cir. 2016) , the Ninth Circuit Court of Appeals held that trademark co-existence agreements are enforceable and assignable unless the contract provides otherwise.  The court noted that it did not consider the appellants argument that the trademark co-existence agreement is an executory contract that cannot be assigned without the consent of both parties, or that the assignee breached the co-existence agreement because it failed to raise those issues below.