trademark assignment without consideration

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Assignment of Trademark without Consideration

• Post author: D. Lalitha B.com B.L (Hons)
• Post published: June 11, 2024
• Post category: Intellectual Property / Trademark

Last Updated on June 11, 2024 by D. Lalitha B.com B.L (Hons)

Transferring a Trademark involves shifting ownership from one party to another, irrespective of business goodwill, acting as a necessary element that set a company’s offerings. The assignor relinquishes usage rights to the assignee, the new owner. This process is legally binding and necessitates a written agreement to ensure validity. Precision is paramount in carrying out an appropriate Trademark transfer. Kanakkupillai offers dependable Trademark assignment services, managing all necessary paperwork with expertise for a seamless process. Rest assured, your  Trademark Assignment  will be valid and efficient with their help. If you’re interested in learning more about Trademark registration or assignment processes, have a look at Kanakkupillai for comprehensive guidance

Methods of Trademark Assignment:

• Complete Assignment
• Involves transferring all rights associated with a Trademark, including royalties and transferability.
• Results in a comprehensive and irrevocable transfer of Trademark ownership.
• Partial Assignment
• Transfer of ownership limited to specific products or services associated with the Trademark.
• Allows for selective transfer of Trademark rights while retaining ownership of remaining aspects.
• Assignment with Goodwill
• Transfer of Trademark along with all rights and intangible value associated with it.
• Commonly used for well-established brands seeking to benefit from positive market reputation.
• Assignment without Goodwill
• Transfer of Trademark for use different from its original purpose.
• Allows usage without benefiting from existing reputation, with original owner retaining goodwill.

Requirements for Valid Trademark Assignment:

• Written Documentation and Signature
• Agreement must be in writing and signed by the transferring party.
• Provides a record of transfer and explanation of the terms and conditions.
• Description of Transferred Trademarks
• Indicates the precise trademark (s) being transferred and related  intellectual property  rights.
• Ensures unequivocal and comprehensive assignment.
• Legal Consideration
• Exchange of something of value, like receiving paid in money or assumption of liabilities.
• Underpins enforceability of the assignment.
• Proof of Assignor’s Legal Authority
• Assignor must possess legal authority to make the assignment.
• Confirms legal rights to transfer the Trademark.
• Affidavit on Claims and Legal Issues
• Required by the Trade Marks Act to verify the lack of pending claims or disputes related to the Trademark.
• Ensures Trademark is devoid of encumbrances or legal complications.

Meaning of Assignment of Trademark without Consideration

• Trademark assignment without Consideration:  It is the transfer of a Trademark without cash or other valued Consideration.
• Lack of legal Consideration:  Transfer made without receiving paid or other beneficial trade.
• Non-binding nature:  Trademark assignment without Consideration may not be legally enforceable.
• Absence of legal recognition:  Courts maybe unable to identify a Trademark assignments made without Consideration.
• Uncertainty in legal standing:  Such assignments may experience issues with their legal validity.
• Importance of legal Consideration:  Proper exchange of value ensures enforceability and recognition in court.
• Potential consequences:  Lack of Consideration can render the assignment invalid and unenforceable.
• Legal precautions:  Adhering to legal standards and documentation is necessary to ensure validity of Trademark assignments.

Reasons for Assignment without Consideration

• Gift to a Family Member or Friend:
• Non-commercial gesture of sharing ownership in the sense of token of love or friendship.
• Philanthropic Intent:
• Donation to charitable organizations or non-profit entities to support a cause.
• Personal or Professional Ties:
• Transfer driven by personal or professional relationships, without expecting to get paid.
• Liability Assumption:
• Assignee ready to take over complete responsibility associated with the Trademark, providing enough Consideration.

Legal Implications of Assignment of Trademark without Consideration

• Enforceability in Question:
• Assignment lacking Consideration may not be enforceable under the law.
• Party receiving the Trademark may not possess legal rights to use it.
• Legal Precedents :
• Assignor may not have the right to violate the Trademark, even without payment.
• Contingent on the Trademark entry not being deleted from the Trademark Register.
• Risk Mitigation:
• Proper documentation and adherence to legal standards mitigate risks.
• Negotiating terms and indicating the Consideration can avoid legal complications.

Conclusion:

Assigning a Trademark without Consideration presents intricate legal complexities and potential enforceability challenges. Despite motivations rooted in altruism or connections with specific people, beneficiaries may lack legal rights to the Trademark. Legal precedents suggest original owners may retain rights unless the Trademark is legally taken off the from the Trademark Register. To preempt legal issues, strict adherence to legal standards is paramount for all Trademark assignments, including non-monetized transfers. Thorough documentation and transparent negotiation, as appropriate, assist in reducing hazards, ensuring alignment with legal principles. This safeguards interests and upholds legal validity, even in scenarios devoid of financial dealings.

• What does “assignment of Trademark without Consideration” entail?

The assignment of a Trademark without Consideration involves transferring the ownership of a Trademark without getting paid money or getting something of value in return.

• Is an assignment of Trademark without Consideration legally binding?

Assignments without Consideration may not always be legally enforceable as they lack an exchange of value. Courts may not recognize such transfers.

• What are the potential implications of assigning a Trademark without Consideration?

Assignments without Consideration can face challenges regarding their legal validity and enforceability. The absence of valuable Consideration may impact the rights of the parties involved.

• Can an assignment without Consideration be recognized by the legal system?

While such assignments may not be legally binding, they can still be documented. However, their enforceability may be questioned, and they may not hold up in court.

• Why would someone consider assigning a Trademark without receiving Consideration?

Motivations for such assignments may include personal or professional relationships, philanthropic endeavors, or liability assumption. However, caution is advised due to potential legal implications.

• How can one ensure the validity of an assignment of Trademark without Consideration?

While challenging, proper documentation and adherence to legal standards are necessary. It’s advisable to seek lawyer to navigate the complexities of such assignments.

• Are there alternatives to assigning a Trademark without Consideration?

Yes, alternatives include negotiating a nominal Consideration or exploring other forms of transfer that involve an exchange of value, ensuring legal enforceability.

• Where can I seek assistance for a Trademark assignment without Consideration?

Legal service providers like Kanakkupillai offer guidance and expertise in navigating Trademark assignments, ensuring compliance with legal requirements and maximizing validity.

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USPTO Trademark Assignment: Everything You Need To Know

USPTO trademark assignment is the process of assigning a trademark you have registered with the U.S. Patent and Trademark Office to a third party. 3 min read updated on February 01, 2023

Updated November 25, 2020:

USPTO trademark assignment is the process of assigning a trademark you have registered with the U.S. Patent and Trademark Office to a third party. A trademark is a symbol, word, device, phrase, or combined elements that represent your business or brand. When this mark is associated with the quality of your services, it is a valuable form of intellectual property (IP). Because this is considered an asset, it can be assigned. Assignment means to transfer the ownership rights of your trademark to a third party in exchange for profit or benefit. Registered and pending trademarks, as well as patents and patent applications, can be assigned. You must file an assignment agreement with the USPTO. Business reorganization, acquisition, and other circumstances may result in a trademark assignment.

Steps in Assigning a Trademark

• Draft an assignment agreement and have it signed by both parties. Name the person or company buying the trademark as the assignee and the current trademark owner as the assignor. Clearly identify both these parties as well as the trademark in question. Establish terms such as the cost of the trademark, how disputes about the assignment will be settled, and who will pay the transfer fee.
• Fill out the Recordation Form Cover Sheet, which can be completed online. You'll need to include the name and address of a registered agent to receive official USPTO information.
• Submit both the agreement and the cover sheet to the USPTO's Assignment Recordation unit. This can be done online, by fax, or through standard mail. The latter two options require you to establish a deposit account to pay the USPTO recording fee. Mailed forms can be submitted with a money order or check payable to the USPTO director.
• If your trademark is state-registered, you must also record the transfer with the applicable state.
• The USPTO Patent and Trademark Database will be automatically updated for assignments as well as name changes and mergers. When filling out your form, check one of those boxes for the nature of conveyance to ensure that records are updated. Do not select other, which will not update the record. The records will also not be updated if you file multiple documents with the same execution date, the application is in a blackout period, or you have exceeded the allowed number of ownership changes. In these cases, you must make a written request to have the database updated.
• Choose the correct conveyance type, either assignment of part of the interest or assignment of the entire interest along with the associated goodwill.

Points To Remember

All trademark transfers must also include the mark's associated goodwill . This includes the earning power created by customer recognition of the mark. Trademark assignment may be found invalid if the goodwill does not accompany the transfer of the mark.

Failing to follow the ownership transfer procedures can result in liability if the assignee infringes on a third-party trademark. If you buy a trademark and the original owner does not transfer ownership, a dispute could result.

Check the database to determine whether the updates have been made. Click ownership to display the current owner or assignment to display the entire chain of title.

Do not use assignment if you simply need to change your name as the trademark owner. Instead, record the name change through the USPTO Assignment Recordation Branch .

Patent and Trademark Ownership

When it comes to a patent, owning the patent gives you the exclusive right to sell, manufacture, and use the invention in question. Patents last for 20 years while trademark registration lasts for 10 years and can be renewed. The term ownership references the current holder of a trademark or patent. If you own a registered trademark, no one else can use that mark on their products or services, and imports carrying an infringing mark may be blocked from entry by U.S. Customs and Border Protection.

Assignment Fees

While trademark assignment once carried a $25 fee and a $40 fee was required for trademarks, the USPTO recently discontinued this fee for patents and not for trademarks. That's because trademarks are rarely assigned while the assignment is quite common in the fast-paced world of patents.

If you need help with USPTO trademark assignment, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.

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Content Approved by UpCounsel

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After a trademark achieves federal registration, ownership of the mark may change hands for a variety of reasons. When a trademark owner transfers their ownership in a particular mark to someone else, it is called an assignment. Generally, for an assignment of a trademark to be valid , the assignment must also include the ‘goodwill’ associated with the mark (goodwill is an intangible asset that refers to the reputation and recognition of the mark among consumers). If the assignment of a trademark includes the mark’s goodwill and is otherwise legal, the assignee gains whatever rights the assignor had in the mark. Importantly, this includes the mark’s priority date, which has implications for protecting the mark from potential infringers going forward.

In contrast, if an assignment of a trademark is made without the mark’s accompanying goodwill, then it is considered an assignment “in gross” — and the assignment is invalid under U.S. law. Courts have analyzed whether an assignment was made in gross in a few different ways, but, as is the case with much of trademark law, protecting customers from deception and confusion is the primary motivation behind any analysis for determining the validity of an assignment.

One way courts determine if an assignment was made in gross is through the substantial similarity test. This test essentially examines whether the assignee is making a product or providing a service that is “substantially similar” to that of the assignor, such that consumers would not be deceived by the assignee’s use of the mark. This analysis includes an assessment of the quality and nature of the goods and services provided under the mark post-assignment.  Thus, even if an assignee is using the mark on the same type of goods, but the goods are of lower quality than the goods previously offered by the assignor under the mark, the assignment could be invalid. However, slight or inconsequential changes to goods and services after an assignment are not likely to invalidate the assignment, as such changes are to be expected and would not thwart consumer expectations.

Decisions on the question of substantial similarity are only marginally instructive, as the  test calls for a fact specific inquiry into what the consuming public has come to expect from the goods or services offered under a given mark. For example, courts have noted that despite similarities in services and goods, “even minor differences can be enough to threaten customer deception.” [1] Instances of products or services that were deemed not substantially similar (and thus resulted in invalid assignments) include: an assignee offering phosphate baking powder instead of alum baking powder; [2] an assignee using the mark on a pepper type beverage instead of a cola type beverage; [3] an assignee producing men’s boots as opposed to women’s boots; [4] an assignee using the mark on beer instead of whiskey; [5] and an assignee selling hi-fidelity consoles instead of audio reproduction equipment. [6]

Conversely, case law has also shown that substantial similarity can be found even when products or services do differ in some aspects, if consumers aren’t likely to be confused. For example, the following product changes did not result in a finding of an invalid assignment: an assignee offering dry cleaning detergent made with a different formula; [7] an assignee using thinner cigarette paper; [8] and an assignee selling a different breed of baby chicks. [9]

Whether goods or services are substantially similar may seem like an easy test to apply, but, as case law demonstrates, this fact-intensive analysis can yield results that look strange in the abstract. Disputes involving the validity of a trademark assignment are decided on a case-by-case basis, using the specific facts at hand to determine if consumer expectations are being met under the new use. Thus, while trademarks acquired through assignment can have significant value (and grant the assignee important rights formerly held by the assignor), assignees should be wary of changes to goods or services under an acquired mark that could be seen as deceiving the public.

[1] Clark & Freeman Corp. v. Heartland Co. Ltd. , 811 F. Supp. 137 (S.D.N.Y. 1993).

[2] Independent Baking Powder Co. v. Boorman , 175 F. 448 (C.C.D.N.J.1910).

[3] Pepsico, Inc. v. Grapette Company , 416 F.2d 285 (8th Cir. 1969).

[4] Clark & Freeman Corp. v. Heartland Co. Ltd. , 811 F. Supp. 137 (S.D.N.Y. 1993).

[5] Atlas Beverage Co. v. Minneapolis Brewing Co. , 113 F.2d 672 (8 Cir. 1940).

[6] H. H. Scott, Inc. v. Annapolis Electroacoustic Corp. , 195 F.Supp. 208 (D.Md.1961).

[7] Glamorene Products Corp. v. Procter & Gamble Co. , 538 F.2d 894 (C.C.P.A. 1976).

[8] Bambu Sales, Inc. v. Sultana Crackers, Inc. , 683 F. Supp. 899 (1988).

[9] Hy-Cross Hatchery, Inc v. Osborne 303 F.2d 947, 950 (C.C.P.A. 1962)

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Assignment of Trademark without Consideration

Learn in detail the concept of assignment of the trademark without consideration, which refers to valuable consideration like any monetary payment.

Assignment of a trademark (a symbol, word, number, or combination of colours can be used) is an act of the transfer of ownership of a trademark from one party to another, with or without the goodwill of the business. This can be a valuable business asset, as trademarks can be used to identify and distinguish a company’s goods or services from those of its competitors. The owner of the trademark, known as the assignor, transfers the rights to use the trademark to the new owner, known as the assignee. Trademark assignment is a legally binding process and requires a written agreement between the assignor and assignee.

However, it is essential to understand that the transfer of a trademark must be done properly in order to be valid. So, you should be cautious in doing so. Vakilsearch will be the best reliable service that you can opt for to do the trademark assignment with ease. Yes, all the necessary paperwork is carried out here by experts to facilitate a smooth and efficient process. Hence, you can be assured of a valid assignment of the trademark. Also, if you are keen on knowing the process of trademark registration or trademark assignment, please visit Vakilsearch .

Learn more about Trademark application process   

Table of Contents

Ways of Assignment of the Trademark:

Here are the ways of assignment of the trademark :

• In a complete assignment, all rights, including royalties and the ability to further transfer the rights, are transferred 
• A partial assignment involves the transfer of ownership of specific products or services 
• An assignment with goodwill involves the transfer of a trademark along with all the rights and value associated with it 
• An assignment without goodwill involves the transfer of a trademark for use in a manner other than its original purpose.

A Valid Assignment of the Trademark:

For an assignment of a trademark to be considered valid, it must be documented in writing and signed by the party transferring the trademark. This requirement is in place to provide a clear record of the transfer and to ensure that both parties understand and agree to the terms of the assignment. The written assignment should also include details about the specific trademark or trademarks being transferred, as well as any related intellectual property rights. This helps to ensure that the transfer is complete and unambiguous.

It’s important to keep in mind that a trademark assignment must involve the exchange of something of value in order for it to be legally binding. This exchange, known as legal consideration, can take the form of a monetary payment or the transfer of other intellectual property rights, or the assumption of liabilities. Without legal consideration, the trademark assignment would not be considered valid. 

Under the TradeMarks Act , the assignor must have the legal authority to assign a trademark and must provide proof of receipt of any payment received for the assignment. The assignor must also submit an affidavit to the Trade Marks Office stating that the trademark has no outstanding claims or legal issues associated with it.

Assignment of the Trademark without Consideration:

Actually speaking, the concept of assignment of the trademark without consideration refers to the transfer of a trademark without receiving any kind of monetary payment or any other valuable consideration that is being given in exchange as mentioned above.

An assignment of the trademark without consideration, on the other hand, refers to a transfer of a trademark that is not made for any legal consideration. This means that no payment or other valuable consideration is given in exchange for the transfer of the trademark. As a result, such a trademark assignment may not be legally binding and may not be recognised by the courts. 

Reasons for Assigning a Trademark without Consideration:

There are a few different reasons why a party might attempt to assign a trademark without consideration. It can be as follows:

• Giving the trademark as a token of love or gift to a family member or friend
• Transferring the trademark to a charitable organization or non-profit organisation for a good cause
• Assigning the trademark to a company or entity that the owner has a personal or professional relationship with, and wants to render a supporting hand
• Selling the trademark to a buyer who is willing to assume all liabilities associated with the trademark, and therefore does not require any additional consideration.

Note: Even in such cases where a trademark is assigned without consideration, the assignment must still be made in writing and signed by the party transferring the trademark in order to be legally binding. 

Is the Assignment of the Trademark without Consideration Legal?

It is important to understand that an assignment of the trademark without consideration may not be enforceable in the eyes of the law. This means that the party receiving the trademark may not have any legal rights to use it, and the original owner may be able to reclaim the trademark. For example, with respect to a case like this wherein a trademark was assigned without consideration, the Delhi High Court has stated that the assignor does not have the right to violate the same trademark that he has assigned even if he has not received payment in exchange for doing so, as long as the entry has not been deleted from the Trademark Register by the proper authorities.

So, in order to avoid any such potential legal issues that arise out of it, it is important to ensure that all trademark assignments are made properly and for legal consideration. This may involve negotiating the terms of the transfer and specifying any payment or other valuable consideration that is being given in exchange for the trademark. 

Conclusion:

Thus, in simple words, an assignment of the trademark without consideration is a transfer of a trademark that is not made for any legal consideration. While you may wish to transfer a trademark as a token of your love or gift or as part of a business deal without expecting anything in return, it is important to understand that such an assignment may not be legally valid and may not be recognized by the courts. To ensure that a trademark assignment is valid and enforceable, it is essential to make sure that it is done properly and for legal consideration. Vakilsearch will help you in the assignment of a trademark at a very affordable price. So, just visit the website and avail of the service to get your trademark assigned.

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Home » Trademark Assignment

A trademark assignment transfers all rights in a trademark to another party.  Registering trademarks with the U.S. Patent and Trademark Office (USPTO) offers several rights, and one of those is the ability to record a trademark assignment.

When considering the transfer of any trademark though, it’s important for both parties to have a sound understanding of the legal implications. Failure to properly execute an assignment could result in disagreements over ownership, exposure to litigation, and other adverse outcomes.

What is a Trademark Assignment?

A trademark assignment transfer all rights, title and interest in a trademark to the recipient.  Around 20 percent of trademarks registered with the USPTO will at some point be transferred in this manner. Once complete, the original owner no longer has a legal interest in the trademark. Both parties may benefit from these agreements since the assignor typically receives a payment and the assignee takes control of a valuable piece of intellectual property.

If you’ve secured trademark registration from the USPTO, you’ll need to record the assignment. This will provide public notice regarding the transfer of ownership. This should be done within three months following the assignment date. This creates prima facie evidence of the transfer. The USPTO does not accept Asset Purchase Agreements as evidence of an assignment.

Trademark Assignment Agreement

When ownership of a trademark is being transferred, it’s important to have a written trademark assignment agreement.  A properly crafted contract can protect all parties involved. The USPTO will also not consider agreements to transfer trademarks valid unless they’re in writing.

The following qualifications should be met at a minimum:

• All involved parties – the assignor and assignee – should be identified.
• The trademark being assigned should be identified along with relevant ownership information (e.g. registration number).
• Consideration must be listed (i.e. what each party is receiving).
• List the effective date of the transfer.
• Contract must be duly executed.
• Trademark goodwill must be specifically transfered.

These minimum requirements will typically ensure that the transfer assignment agreement is valid and holds up in court. The onus of creating a valid contract is on the assignor and assignee. Including information regarding payment of the transfer fee and how disputes between the two parties will be handled is also recommended.

Trademark Goodwill

Trademarks are valuable pieces of intellectual property, and this value comes from their inherent goodwill. Trademark goodwill is the positive associations and feelings that the trademark creates in the consuming public.  It is an intangible asset that is linked to the consumer recognition of a brand.

Any trademark assignment must explicitly state that all goodwill is also being transferred. Each transfer is unique and could result in differences in a final contract, but every valid assignment must contain language signifying transference of goodwill. The agreement will otherwise be viewed as an “assignment in gross” and could cause the loss of trademark rights.

Assignments involving both common law trademarks and those registered with the USPTO must include a transfer of trademark goodwill. This is what inherently makes a brand identifier valuable. The importance of this element of assignment relates to consumer trust.  The source of a product/service should match what a consumer was led to believe.

Reasons for Trademark Assignments

Even though a trademark is seen as one of the most valuable assets a business can own, there are a variety of reasons why a trademark assignment may be desired. These are just a few of the reasons behind trademark assignments:

• Business changes : An assignment may be required if a business owner forms a new entity or dissolves an old one.
• Sale of business : A trademark owner may decide to focus on a different business or retire.
• Manufacturing or Marketing costs : A trademark may become more valuable to another party due to manufacturing or marketing costs.

There are many reasons why a brand owner may choose to assign their trademark to a third party. These transfers are permanent when properly executed. This makes it important for registrants to understand all implications. There are other options available – such as licensing agreements, discussed further below – if a trademark owner wants to maintain some control over the trademark.

Before Taking Ownership

Most of the focus on trademark assignments rests on assignors, but those taking ownership of a trademark have many considerations as well. In addition to the rights they’re gaining through the transfer of ownership, they’re also taking on the risks and responsibilities of owning a trademark. Assignees should consider all the following concerns before finalizing an agreement:

• Reputation of brand : Purchasing a trademark is essentially purchasing the reputation of a brand. If consumers do not view a trademark favorably, you’ll have a difficult time changing their minds.
• Confirm ownership : Performing a thorough trademark search prior to entering an agreement is essential. This will confirm ownership and give you an idea of whether trademark disputes may arise in the future.
• Intent-to-use identifiers : Trademark assignment involving Intent-to-Use Trademarks must meet specific criteria. If an identifier is not yet in commercial use, the assignment must be to a business successor.
• Potential disputes of ownership : If proper documentation is not recorded with the USPTO, the assignment could be deemed invalid.
• Third-party disputes : Failure to properly transfer ownership can also leave the assignee open to claims of trademark infringement from third parties.
• Transfer of trademark goodwill : Always make sure trademark goodwill is explicitly transferred in the assignment agreement.

The moral here is to always perform due diligence before taking ownership of another party’s trademark.

Trademark Assignment with the USPTO

To ensure appropriate transfer of ownership, a trademark assignment must be recorded with the USPTO. This is done through the Electronic Trademark Assignment System. In addition to uploading your Transfer Assignment Agreement, you must complete an online form and pay the respective fees. Failure to do so will harm assignees in future litigation and prevent them from renewing the trademark .

When filing a trademark assignment with the USPTO it must be accompanied by a Recordation Form Cover Sheet. This lists the basic required information for transferal. The USPTO typically processes assignments within a month or two and then they become public record.

Nunc Pro Tunc Trademark Assignment

Not all assignments of trademark rights are immediately put into writing. This creates unnecessary risks for both parties. In these situations, a nunc pro tunc trademark assignment can retroactively document the transfer of ownership. Nunc pro tunc is Latin for “now for then,” so it serves as evidence of when an oral agreement was reached between the assignor and assignee without being put in writing.

This written document can be filed with the USPTO, but unlike a traditional assignment, it’s effective from the date of oral assignment rather than the date of execution.  Documenting assignments after the fact is definitely not a best practice and can lead to many issues.  It is however the only way to try to fix an error that has occurred in the past.

Trademark Licensing

Assigning ownership of a trademark isn’t necessary to grant certain rights. Trademark licensing can give third parties permission, for instance, to use a trademark without the original owner relinquishing rights. This is the type of business relationship that exists for more than 900,000 franchised business establishments across the country.

The owners of trademark registrations typically strive to prevent outside parties from using their intellectual property. By licensing use to certain brands or individuals, though, they garner a variety of benefits. These may include gaining expertise, assistance in shouldering the burden of a growing business, increased brand recognition, creation of a passive revenue source, and expansion into new markets.

The three basic types of trademark licensing agreements are exclusive, sole and non-exclusive.  An exclusive license means that the licensee has the exclusive ability to sell the goods or services at issue.  A sole license means that the licensee has the right the sell the goods or services but the right is shared with the licensor.  A non-exclusive license means that the licensor retains the right to license the trademark to other third parties and continue to sell the goods or services themselves.

Licensing agreements should always be in writing and preferably they should be notarized.  Failing to have a license agreement in writing will lead to many issues if trademark litigation or other disputes arise. Having the agreement notarized will also reduce the likelihood of disputes over the validity of the license.

The agreements used for trademark licensing and assignment have some similarities, but there are important distinctions. Licensing documents, for example, should include quality control provisions, the type of license granted, the effective dates of the license, and any specifications regarding the renewal of the agreement. These terms are typically not part of assignments.

If you are considering a trademark assignment, please do not hesitate to contact us with any issues or questions that you may have.

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Assignment of Trademark Without Consideration

The assignment of a trademark involves the transfer of its ownership from one entity to another, whether with or without the associated business reputation.  It’s essential to execute the transfer of a trademark correctly to make it legally binding. Therefore, exercising caution during this process is important. In this blog, we shall see in detail about the assignment of trademark without consideration .

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Methods of Trademark Assignment

The various methods of trademark assignment are as follows:

1. Complete Assignment

In a complete assignment, all the rights associated with a trademark, including the right to receive royalties and the ability to further transfer those rights, are transferred to another party. This method results in a comprehensive and irrevocable transfer of trademark ownership from one party to another.

2. Partial Assignment

A partial assignment is transfer of ownership of the specific products or even services associated with the trademark. This method allows for selective transfer of trademark rights, and the original owner retains ownership of the remaining aspects of the trademark registration and related services.

3. Assignment with Goodwill

An assignment with goodwill is basically the transfer of trademark plus all the rights and the intangible value associated with it. This method is often used when the trademark is associated with a well-established brand or reputation, and the assignee seeks to benefit from its positive image in the market.

4. Assignment without Goodwill

In contrast, an assignment without goodwill includes transfer of the trademark for use in the manner other than what was its original purpose. The assignee may use the trademark without benefiting from its existing reputation or customer goodwill, and the original owner retains the goodwill associated with the trademark. This method is typically chosen when the assignor wishes to maintain control over the brand’s image and reputation.

Requirements for a Valid Trademark Assignment

To ensure the validity of a trademark assignment, several essential requirements must be met. These requirements serve to establish a clear and legally binding transfer of trademark rights, safeguarding the interests of all parties involved. These include:

1. Written Documentation and Signature

A valid trademark assignment must be documented in the form of writing and signed by that party transferring the trademark. This written agreement serves as a record of the transfer and provides clarity regarding the terms and conditions of the assignment. Both parties involved in the transfer must consent to and acknowledge the written agreement.

2. Description of Transferred Trademarks

The written assignment should specify the exact trademark or trademarks being transferred. Furthermore, it should encompass any related intellectual property rights connected to the trademark. This detailed description ensures that the assignment is unequivocal and comprehensive.

3. Legal Consideration

A key requirement for a legally valid trademark assignment is the exchange of something of value, known as legal consideration . This can take various forms, such as monetary payment, the transfer of other intellectual property rights, or the assumption of liabilities. The presence of legal consideration underscores the enforceability of the assignment.

4. Proof of Assignor’s Legal Authority

The assignor, the party transferring the trademark, must possess the legal authority to make the assignment. It is crucial to confirm that the assignor has the requisite legal rights to transfer the trademark in question, failing which he can be held liable for relevant punishable offences under the Act.

5. Affidavit on Claims and Legal Issues

As per the Trade Marks Act , the assignor is required to present an affidavit to the Trade Marks Office. This affidavit serves to confirm that the trademark undergoing assignment does not have any pending claims, disputes, or unresolved legal matters connected to it. This process guarantees that the trademark is devoid of any encumbrances or potential legal complications.

Meaning of Assignment of Trademark without Consideration

The assignment of trademark without consideration entails the transfer of a trademark without the exchange of monetary payment or any other valuable consideration, as previously discussed. This unique form of trademark transfer raises specific legal implications.

An assignment of trademark without consideration is the transfer that lacks any legal consideration. In essence, it means that the transfer of the trademark occurs without the involvement of payment or any other valuable consideration in return. Consequently, such a trademark assignment may face challenges regarding its legal enforceability and may not be recognised as valid by the legal system. The absence of legal consideration can impact the binding nature of the assignment, and it may not hold up in court.

Reasons for Assignment of Trademark without Consideration

The assignment of trademark without consideration can be motivated by various reasons, demonstrating that such transfers are not solely driven by monetary gain. The following are common motivations for assignment of trademark without consideration:

1. Gift to a Family Member or Friend: Assignment of trademark without consideration can be an act of giving, such as presenting the trademark as a token of love or gift to a family member or friend. This reflects a non-commercial, personal gesture of sharing the trademark’s ownership.

2. Philanthropic Intent: Assignment of trademark without consideration can be made to charitable organisations or non-profit entities as a philanthropic endeavour. The owner may seek to support a charitable cause or contribute to the public good by donating the trademark.

3. Personal or Professional Ties: The assignment of trademark without consideration can be driven by personal or professional relationships. The owner may assign the trademark to a company or entity with which they share a close connection, offering a helping hand without the expectation of compensation.

4. Liability Assumption: In some instances, the assignment of trademark without consideration can be when the assignee is willing to assume all liabilities associated with the trademark. In such cases, the assumption of liabilities may be deemed sufficient consideration, obviating the need for additional payment.

It’s important to note that even in cases where a trademark is assigned without consideration for these altruistic or relationship-driven reasons, the assignment must still adhere to the legal requirement of being documented in writing and signed by the transferring party to be considered legally binding.

Legal Implications of Assignment of Trademark without Consideration

Assigning a trademark without consideration carries potential legal implications, and it may not always be legally enforceable. The absence of valuable consideration can impact the rights and enforceability of the trademark assignment. It’s crucial to be aware of the legal stance on such assignments:

1. Enforceability in Question:

An assignment of a trademark without consideration may not be enforceable under the law. This means that the party receiving the trademark might not possess legal rights to use it, and the original owner may retain the ability to reclaim the trademark.

2. Legal Precedents:

Legal decisions have upheld that, in cases where a trademark was assigned without consideration, the assignor may not have the right to violate the same trademark, even if no payment was received in exchange for the assignment. This is contingent on the trademark entry not being deleted from the Trademark Register by the appropriate authorities.

3. Risk Mitigation:

To avoid potential legal complications stemming from assignments without consideration, it is advisable to ensure that all trademark assignments are executed properly and include legal consideration. This often involves negotiating the terms of the transfer and specifying any payment or other valuable consideration exchanged for the trademark. Proper documentation and adherence to legal standards can help mitigate risks and ambiguities associated with such assignments.

So, while assignments of trademarks without consideration can occur for various reasons, it’s crucial to understand that the legal enforceability of such transfers can be uncertain. To protect the interests of all parties involved, it is advisable to follow proper legal procedures and document trademark assignments accurately, especially when valuable consideration is not involved in the transfer.

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Final thoughts.

The assignment of trademark without consideration is a complex legal matter that may lack enforceability. Such assignments, driven by altruistic or personal motives, can leave the recipient without legal rights to the trademark. Legal precedents suggest that even in cases of non-monetised transfers, the original owner may retain rights unless the trademark is officially removed from the Trademark Register. To avoid potential legal issues, it is advisable to ensure that all trademark assignments, even those without consideration, are conducted in strict adherence to legal standards. Proper documentation and transparent negotiation of terms, if necessary, can help mitigate risks and ambiguities. This safeguards the interests of all parties involved and ensures that the trademark assignment adheres to legal principles, even in cases where no monetary payment changes hands.

Aishwarya Agrawal

Ms. Aishwarya Agrawal is a graduate from Hidayatuallah National Law University, Raipur [HNLU Raipur]. Aishwarya holds a great interest in adding value to the legal fin-tech sector. She joined "StartupFino" with a motive to help budding lawyers in their day-to-day journey in the field of Law.

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Home > Trademark Blog > Trademark Assignment > What is a Trademark Assignment? How Do I Assign Trademark Rights?

What is a Trademark Assignment? How Do I Assign Trademark Rights?

A trademark assignment (which is different than a trademark license ) is simply the transfer of ownership of a trademark from one person or entity to another.  In order for an assignment to be valid and enforceable, it must include the underlying goodwill associated with the trademark, or in other words, the recognition the trademark has with the public.  Otherwise, the transfer of ownership will be considered an assignment in gross and the trademark may be deemed abandoned by the parties and all rights could be lost forever.

The Trademark Assignment Should Be in Writing

Although an assignment need not be in writing to be effective, it’s strongly recommended that it be in the form of a written document signed by both the assignor and the assignee.  In the event the parties fail to memorialize the trademark assignment in writing at the time of an oral assignment, they can later prepare what’s called a nunc pro tunc assignment.  This type of assignment is similar to an ordinary assignment of trademark rights, but instead of it being effective on the date it’s executed (which could be years after the trademark was orally assigned), it’s considered effective from the date the oral assignment was made.

Recording a Trademark Assignment

If the trademark being transferred is the subject of an existing US trademark registration or pending trademark application, the assignment should be recorded with the Assignment Services Division of the United States Patent and Trademark Office (USPTO).  This should be done electronically using the USPTO’s Assignment Center System .  You must complete the online form, upload the assignment, and pay the government filing fees (which are quite minimal).  It’s important to promptly record the assignment so that the USPTO records remain accurate and so that the public is put on notice as to the rightful owner of the trademark.  In addition, a trademark registration renewal cannot be filed in the name of the new owner unless the assignment has been recorded with the USPTO.

Be Very Careful…

Although a pending trademark application may be assigned prior to maturing into a trademark registration, you may not assign a trademark application filed under Section 1(b) ( intent to use ) until the trademark itself is in use in commerce , meaning that there’s an existing and ongoing business related to the mark.  If an intent-to-use application is prematurely assigned, any resulting trademark registration will be considered void and subject to a trademark opposition or trademark cancellation .

Need Help Preparing or Recording a Trademark Assignment?

In conclusion, there are many pitfalls that must be avoided when making an assignment of trademark rights in order to ensure that the transfer of ownership is valid, legal, and binding.

I’m experienced US trademark attorney Morris Turek.  If you have any questions about trademark assignments, the assignment of trademark rights, or maybe need some assistance from a skilled trademark attorney with preparing and recording a trademark assignment, please contact me for your free consultation at (314) 749-4059 , via email at [email protected] , or through my contact form located below.  I look forward to hearing from you soon.

Fact Sheet: Introduction to Trademarks

Assignments, Licensing, and Valuation of Trademarks

Updated: December 18, 2023

1. How do I know what my trademark is worth?

The value of a trademark lies in the goodwill associated with that trademark. Goodwill is like the trademark right itself—an “intangible” asset (as distinguished from a “tangible” asset that is a physical asset that can be seen or touched, such as land, buildings, machinery, inventory, and cash) that is part of the value of the trademark owner’s business. It can be quite difficult to assign a monetary value to goodwill because many variables must be considered, such as the duration and extent to which the owner has used the trademark in business.

Some of the most common approaches to/methods of valuing a trademark are: (a) the income approach, which assigns a value to a trademark based on past and expected future profits of the goods/services associated with the trademark; (b) the market approach, which assigns a value based on comparisons of transactions (such as royalties, i.e., license fee rates) involving similar assets; (c) the cost approach, which assigns a value based on the cost of creating a trademark and the cost of replacing the existing trademark with a trademark of equivalent market power; and (d) the relief from royalty method, which estimates the expected royalty savings attributable to the ownership of the trademark.

Many companies specialize in the valuation of trademarks and may provide significant expertise in attributing a monetary value to a trademark.

See also Brand Valuation  Fact Sheet

2. Can I sell my trademark?

Yes, you can sell and/or assign (transfer) your trademark. An assignment of trademark rights can be either outright, in that it results in the total transfer of ownership of such rights from one entity to another, or (in some countries/jurisdictions) partial, resulting in the transfer of only a portion of the trademark rights.

The laws governing trademark assignments vary from one jurisdiction to another. The laws and regulations of each jurisdiction where a trademark exists should be carefully reviewed before a trademark assignment is undertaken. Failure to comply with the requirements could lead to unanticipated tax consequences or result in the invalidation of the transfer.

See also Trademark Assignments  Fact Sheet

3. Can I retain ownership of a trademark if I allow others to use it?

Yes. You can allow another party to use your trademark in commerce, while still retaining ownership of the mark, by entering into a license agreement with that person or entity.

Licensing of the use of trademarks facilitates merchandising, franchising, and distribution agreements, which play an important role in the way goods and services are distributed, marketed, and sold, both domestically and internationally License agreements may contain provisions governing the term (length) of the license, the territory covered by the license, the royalty the licensee must pay to the licensor for use of the trademark, whether the license must be recorded, whether the license covers all or just some of the goods or services protected by the licensed mark, whether the license is transferable or sublicensable, and whether the licensee has exclusive or sole rights to use the trademark (and if so, in which territory). Many license agreements will also have provisions permitting the licensor to control the quality of the goods or services produced or offered by the licensee under the licensed trademark, which are known as “quality control provisions.” In fact, to maintain your trademark rights  in many jurisdictions it is mandatory  to include quality control provisions in a trademark license agreement and, even in jurisdictions where it is not mandatory, it is always a good idea to include such provisions.

See also Trademark Licensing  Fact Sheet.

Additional Resources

Country Guides : Essential Information on Trademark Protection Worldwide Searchable database of basic information on trademark filing, prosecution, registration, maintenance and enforcement in more than 100 jurisdictions.  Membership required.

Please give us your  feedback on whether this fact sheet was helpful or if you have suggestions for other fact sheet topics.

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Navigating the world of trademark assignments can be a complex endeavor, fraught with potential pitfalls and legal nuances. As a business selling services or goods, understanding the ins and outs of this process is crucial to protecting your brand and intellectual property. This article aims to shed light on avoiding common mistakes often made during trademark assignments and offers guidance on how to avoid them. With a clear, informative tone, we'll delve into the intricacies of drafting a trademark assignment , procedural errors, post-assignment considerations, and the importance of legal assistance. By the end of this article, you'll be better equipped to handle your trademark assignments with confidence and precision.

Common Mistakes to Avoid in Trademark Assignment

Trademarks are unique identifiers that distinguish a business's goods and services from its competitors. They play a crucial role in building brand identity and fostering consumer trust. Therefore, assigning trademarks is not a task to be taken lightly. It requires a thorough understanding and meticulous handling. With this in mind, let's delve into the world of Trademark Assignment and learn how to sidestep common mistakes.

Decoding Trademark Assignment and Its Role

Let's begin by defining Trademark Assignment. Simply put, it's the legal process of transferring ownership of a registered or pending trademark from one party (the assignor) to another (the assignee). Much like selling a property, the assignee gains all rights, benefits, and privileges associated with the trademark, while the assignor relinquishes all rights to it.

Trademark Assignment serves several strategic purposes. It allows businesses and individuals to transfer the responsibility and benefits of a trademark to others. For companies undergoing mergers, acquisitions, or restructuring, Trademark Assignment ensures a seamless transition of trademark ownership and rights. Alternatively, an entity may choose to sell or assign its trademarks to streamline its intellectual property portfolio or for financial gain.

Moreover, Trademark Assignment is a cornerstone of franchising. Franchisors often assign trademarks to franchisees, allowing them to use the franchisor's trademarks. This arrangement benefits the franchisee by leveraging the established reputation and goodwill of the trademarks. Importantly, the franchisor maintains control over the quality of goods or services provided under the assigned trademarks, thereby preserving the brand's integrity and trust.

Understanding the intricacies of Trademark Assignment and its role in business operations underscores the importance of avoiding common errors. Let's delve into these mistakes and their avoidance strategies, as these missteps can lead to expensive corrective measures and potential disputes.

Steering Clear of Common Drafting Errors in Trademark Assignment

Trademark Assignment, like any legal document, requires meticulous attention to detail. The language used must be legally sound and accurately represent the intentions of all parties involved. Failure to do so can lead to legal disputes or even render the assignment null and void.

A frequent error in drafting a Trademark Assignment is the inadequate or inaccurate definition of the trademark being transferred. It's important to remember that a trademark isn't just a name, logo, or slogan. It encompasses associated goodwill, rights accrued through usage, renewal rights, and more. An incomplete or vague description can lead to disagreements and potentially derail the entire assignment process.

Another common oversight is the unclear transfer of associated rights. The rights tied to a trademark are multifaceted, including the right to use the mark, the right to license its usage to others, and the right to enforce against infringement. The assignment must clearly state which rights are being transferred and which are being retained, if any.

There are other crucial elements involved in drafting a Trademark Assignment, such as defining the consideration or the value received for the trade. We'll delve into these aspects and the common mistakes made in the following sections, aiming to provide a comprehensive understanding of the trademark assignment process and how to sidestep potential obstacles.

Accurate Definition of the Trademark and Transfer of Rights

A common, yet easily rectifiable, mistake in drafting a Trademark Assignment is the inadequate definition, identification, and description of the trademark. It's crucial to accurately and fully describe the trademark that's intended to be transferred. Any ambiguity can lead to misunderstandings, disputes, or even the invalidation of the entire assignment document.

Avoiding this mistake begins with a thorough review of your trademark portfolio and a clear identification of the trademarks to be transferred. The trademark should be detailed in the assignment, using its complete and exact name, depiction (for design marks), or sound (for sound marks), and including its registration number if registered. For unregistered marks, provide a detailed description of the mark's use, including the specific goods or services with which it is used. A precise and comprehensive identification strengthens your Trademark Assignment.

Transferring rights is equally important. It's necessary to not only transfer the trademark ownership but also stipulate the transfer of any associated rights. These may include the exclusive right to use the mark, the right to license its usage to others, the right to enforce the mark against infringement, and more. These rights are inherently tied to the trademark — transferring the mark alone, without explicitly transferring these rights, can lead to an incomplete assignment. Ensure the assignment document clearly states the transfer of any associated rights, providing complete control to the assignee.

Understanding the Role of Consideration in Trademark Assignment

Consideration is a crucial element in a Trademark Assignment that is often neglected. In the realm of trademark law, consideration is what one party gets in return for the transfer of trademark rights. This could be in the form of money, company shares, products, services, or any other benefit agreed upon by both parties. The importance of consideration lies in its legal enforceability - many jurisdictions may not uphold an agreement without it.

Regrettably, a number of assignments do not adequately address consideration, either by completely disregarding it or by insufficiently defining it. This could lead to future disputes or even a court ruling that the assignment is void due to lack of consideration.

To prevent such issues, it is vital that your Trademark Assignment clearly outlines the consideration involved. This includes detailing its form, whether monetary or non-monetary, and its agreed-upon value. If there's no explicit consideration, it's important to state that the assignment is made in consideration of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged.

It's important to note that the consideration provided must be agreed upon by all parties involved in the assignment. It cannot be a decision made by one party alone. Therefore, it's crucial to discuss, agree upon, and clearly document this aspect in the assignment. Doing so not only solidifies the validity of the trademark assignment but also offers legal protection to all parties in case of future disputes.

Steering Clear of Procedural Errors in Trademark Assignment

While the drafting of the assignment document often takes center stage, procedural errors during the execution of the trademark assignment can easily slip through the cracks, leading to unnecessary complications. The assignment process extends beyond the drafting of the document and involves a series of steps aimed at ensuring the legitimate, binding, and official transfer of trademark rights.

Two common areas where procedural errors occur are in recording the assignment and in the correct execution of the assignment. Similar to real estate transactions, it's not enough to simply sign a deed transferring ownership; this deed must be recorded in the appropriate land records office to provide public notice of the transfer and to secure the rights of the new owner. The same principle applies to trademark assignments. Once the assignment document has been executed, it must be recorded with the relevant regulatory body, depending on the jurisdiction. Failure to do so could impact the validity of the assignment and create issues for the assignee when enforcing the trademark rights in the future. Therefore, recording the assignment is a critical step that should not be overlooked.

Another common procedural error occurs during the execution of the assignment document. This often includes missing signatures, lack of witnesses where required, or incorrect identification of the assignor or assignee. Any of these mistakes can undermine the validity of the assignment. It's therefore essential to understand and adhere to the formalities of executing the document correctly, based on the requirements of the jurisdiction where the trademark is registered.

Recording the Assignment

Recording the assignment is a critical step in the trademark assignment process. It serves as an official declaration that the trademark ownership has transitioned from the assignor to the assignee. In many jurisdictions, this is not just a recommended practice but a legal necessity for the assignment to be valid and for the assignee to lawfully exercise their rights under the trademark.

Regrettably, some businesses fall into the trap of thinking that just executing the assignment is enough and fail to properly record the assignment. This oversight can jeopardize the assignee's ownership and associated rights.

To circumvent this, it is imperative to record the assignment with the official trademark registry of your jurisdiction after the assignment agreement has been executed. This typically involves submitting the original or a certified copy of the assignment document along with all necessary information and forms, and paying the required recording fee. Not filing within the designated time frame could result in penalties and may impact the enforceability of the trademark rights.

Furthermore, it's crucial to record the assignment in all territories where the trademark is protected. For example, if the trademark is registered in multiple countries, the assignment must be recorded in each of these countries' respective trademark offices. While this process can be intricate and time-consuming, it's a vital step to safeguard the assignee's rights to the trademark.

Correct Execution of the Assignment

Proper execution of a Trademark Assignment is a fundamental step that is often overlooked, leading to common mistakes that can impact the legality of the transfer. A properly executed assignment formalizes the agreement between the transferor and the transferee regarding the transfer of trademark ownership and rights.

Common pitfalls in execution include missing signatures, incorrect identification of parties, and absence of proper witnessing. If these issues are not addressed, the validity of the assignment can be challenged later, potentially leading to legal disputes.

To prevent these problems, it's vital to ensure all parties involved have a clear understanding of their roles and responsibilities and confirm that all necessary signatures are present and accurately documented. The names, titles, and addresses of the signing authorities should be accurately listed. Additionally, the signatures should be properly witnessed as per the jurisdiction's requirements.

Finally, it's important to remember that the specific requirements for a valid execution can vary from one jurisdiction to another. Therefore, it's recommended to consult with a legal professional to understand the specific requirements of your jurisdiction and ensure that the assignment agreement is executed correctly and is legally binding.

Steering Clear of Post-Transfer Missteps

Upon the successful completion of a trademark assignment, it's easy for businesses to fall into the trap of complacency, believing their job is done. However, this mindset often leads to the neglect of crucial post-transfer duties associated with owning trademark rights. Ignoring these responsibilities can trigger unexpected issues, potentially diminishing the value of the trademark or even causing the rights to dissolve entirely.

The most frequently encountered post-transfer errors involve the upkeep and renewal of trademarks, along with the monitoring and enforcement of trademark rights. If these tasks are neglected, the protection offered by the trademark could lapse, leaving it vulnerable to infringement. Similarly, without diligent monitoring and enforcement, illicit use of the trademark may go unnoticed, leading to a dilution of its value.

Understanding these responsibilities is vital. Ownership of trademark rights is not a one-off event but an ongoing commitment requiring vigilance, attention, and legal compliance to safeguard and enhance the value of your trademark rights.

Upkeep and Renewal of Trademarks

One cannot overstate the importance of proper upkeep and renewal of trademarks following a trademark assignment. Neglecting to renew a trademark in a timely manner can result in the cancellation of its registration, leaving it unprotected and available for others to use. Moreover, failure to comply with maintenance requirements could lead to the trademark being deemed abandoned.

The specific actions and timings for maintaining and renewing trademarks can differ depending on the jurisdiction. Generally, it involves filing certain documents to demonstrate the ongoing use of the trademark and paying the necessary renewal fees within specified timeframes.

Common missteps include overlooking renewal dates, submitting incorrect or inadequate evidence of ongoing use, or failing to pay the required renewal fee. These errors can be expensive, potentially resulting in the loss of a valuable asset. Therefore, it's imperative for the new owner to comprehend these tasks and monitor all necessary dates and requirements to ensure the ongoing protection of the transferred trademark.

Setting calendar reminders, consulting with a trademark attorney, or employing a professional trademark management service are effective ways to ensure that you don't miss crucial renewal deadlines and maintenance requirements. Prioritizing these tasks is essential to securing your trademark rights for the long haul.

Understanding the Importance of Trademark Rights Monitoring and Enforcement

Once a trademark is assigned, the new owner takes on the critical tasks of monitoring and enforcing the trademark rights. Often, businesses overlook the significance of these responsibilities, which can compromise the potency and worth of their trademark.

Regularly monitoring for unauthorized trademark usage is essential. This includes keeping a close watch on trademark registries for similar applications, tracking competitor activities, and scouring online platforms for potential infringements. Neglecting this step can result in widespread unauthorized trademark usage, thereby diluting its uniqueness and value.

Enforcement, conversely, involves taking legal action against any infringement on your trademark rights. If unauthorized usage of your trademark is detected, swift action through legal avenues, such as issuing cease and desist letters or initiating infringement proceedings, is crucial. Inaction can diminish your trademark's protection and may even result in loss of exclusivity.

Both monitoring and enforcement demand time, resources, and a deep understanding of trademark laws, which can be a daunting task for businesses to manage on their own. Employing a professional trademark monitoring service and seeking legal counsel for enforcement actions can effectively manage these vital post-assignment tasks.

The Value of Legal Guidance in Trademark Assignment

The complexities of trademark assignment, as discussed in this article, underscore the necessity for legal guidance. The process involves understanding intricate legal requirements and procedures, from drafting the assignment document accurately to its correct execution, ensuring proper recording, and fulfilling post-assignment responsibilities. The potential for errors in any of these stages underscores the importance of legal assistance.

Legal guidance in trademark assignment extends beyond mere avoidance of common mistakes. It empowers businesses to fully exploit their transferred rights and aids in preventing future disputes related to the assignment. A trademark attorney can help navigate this complex legal terrain, providing invaluable assistance throughout the assignment process and beyond.

Why a Trademark Attorney is Essential

When navigating the complexities of trademark assignments, the expertise of a trademark attorney is invaluable. These professionals bring a wealth of knowledge and experience in trademark law, offering guidance that can preempt potential complications during the assignment process.

From the beginning, a trademark attorney can play a pivotal role in crafting the trademark assignment agreement. They can help define the rights being transferred and the consideration involved, eliminating any potential ambiguities. Furthermore, they can steer the parties involved through the proper execution of the agreement, ensuring all legal requirements are met.

Once the agreement is executed, the attorney can assist in officially recording the assignment. This crucial step, often neglected by business owners, must be done correctly and within specific timeframes. The attorney's role extends into the post-assignment phase, providing guidance on maintaining, renewing, monitoring, and enforcing the assigned trademark rights.

One of the key roles of a trademark attorney is to provide advice on potential issues before they escalate into significant legal disputes. This proactive approach facilitates a smooth assignment transition and helps protect the value of the trademark.

The Benefits of Legal Support

Engaging legal support during the trademark assignment process offers numerous benefits. Starting with the intricate task of drafting the assignment agreement, legal counsel can create a clear, comprehensive, and legally enforceable contract that accurately represents the intentions of all parties. This clarity can reduce the likelihood of misunderstandings, confusion, or future disputes.

During the execution and recording of the assignment, legal support can help circumvent procedural errors that might otherwise nullify the transfer or create legal issues. Crucially, an attorney can ensure that important deadlines and conditions are met, which is particularly important in jurisdictions where timing and execution method are critical.

In the post-assignment phase, the value of legal support increases. An attorney can oversee necessary maintenance and renewals, monitor for potential infringements, and take immediate action to enforce rights when required. This ensures the ongoing protection and value of the trademark are not compromised.

In summary, engaging legal support during a trademark assignment can save businesses significant time and potential costs by preventing costly errors and ensuring a smooth, compliant transfer of trademark rights.

1. What are some common mistakes to avoid when assigning a trademark?

Significant errors include neglecting to conduct an adequate search to ensure the mark's uniqueness, failing to understand the importance of the mark's representation and neglecting to maintain the trademark adequately.

2. Why is it necessary to conduct a thorough search before assigning a trademark?

An exhaustive search prevents the infringement of already registered trademarks. This safeguard prevents costly legal disputes and wasted resources in developing improperly claimed trademarks.

3. Is neglecting the nature of a mark's representation a frequent mistake in trademark assignment?

Absolutely, misunderstanding the representation of a mark diminishes its protection, as it directly ties to the scope of the product or service the mark represents.

4. What potential issues arise with inadequate maintenance of a trademark post-assignment?

Inadequate upkeep can lead to the loss of a trademark's rights. Regular use in commerce and timely renewal filings are integral to maintaining trademark rights.

5. What consequences can result from assigning a trademark without a proper agreement?

Without a suitable transfer agreement, misunderstandings can occur over the rights assigned, potentially leading to disputes or even loss of rights to the mark.

6. How relevant is not understanding the territorial restrictions in a trademark assignment?

Not understanding territorial restrictions can lead to limited enforcement and protection of a mark, reducing its value in markets outside the assigned territory.

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Assignment of Trademark

Updated on : Jun 14th, 2024

Trademark proprietors can transfer trademarks similarly to how they can transfer physical properties. One of the ways to transfer a trademark is through an assignment. Assignment means transferring rights, interests, titles and benefits from one person to another. Assignment of a trademark means to transfer the owner’s right in a trademark to another person.

The transferring party is called the assignor, and the receiving party is called the assignee. Section 2(1)(b) of the Trade Marks Act, 1999 states that assignment means an assignment of a trademark in writing by the act of the concerned parties. Both unregistered and registered trademarks can be assigned with or without the goodwill of the business.

Who can Assign a Trademark?

Section 37 of the Trade Marks Act, 1999 states that the person registered as proprietor of trademark in the register of trademarks has the power to assign a trademark and receive consideration for such assignment. Thus, a trademark proprietor can assign a trademark to another person.

Kinds of Trademark Assignment

The different kinds of trademark assignments are as follows:

Complete Assignment  

The trademark proprietor transfers all rights in the trademark to another person, including the right to earn royalties, to further transfer, etc. 

For example: X is the proprietor of brand ‘ABC’. X assigns his trademark ‘ABC’ completely through an agreement to Y. After this, X will not have any rights with respect to the brand ‘ABC’.

Partial Assignment

The trademark proprietor assigns the trademark to another person with respect to only specific services or goods. The transfer of ownership in the trademark is restricted to specific services or products.

For example: X is the proprietor of a brand ‘ABC’ used for sauces and dairy products. X assigns the rights in the brand ‘ABC’ with respect to only dairy products to Y and retains the rights in the brand  ‘ABC’ with respect to sauces.

Assignment with Goodwill of Business  

The trademark proprietor assigns the rights, entitlements and values associated with a trademark to another person. When the trademark is assigned with goodwill, the assignee can use the trademark for any class of goods or services, including the goods or services which were already in use by the assignor. 

For example: X is the proprietor of ‘Sherry’ brand relating to hair products. X assigns the brand ‘Sherry’ to Y with goodwill. Y will be able to use the brand ‘Sherry’ with respect to food products and any other products they manufacture.

Assignment without the Goodwill of Business  

The trademark proprietor assigns to the assignee rights and entitlements in a trademark with respect to the products or services that are not in use. The assignor restricts the transfer of the rights in the trademark in the case of assignment without goodwill. The assignor assigns with the condition that the assignee is not entitled to use the trademark relating to the goods or services already in use by the assignor.

For example: X is the proprietor of a brand ‘Sherry’ that he uses for manufacturing and selling bags. X assigns the brand ‘Sherry’ without goodwill to Y. Y will be able to use the brand ‘Sherry’ for any other product other than bags.

Pre-Requisites for Assignment of Trademark

• The trademark assignment should be in writing.
• The assignment should be between two identifying parties, i.e. assignor (owner of the trademark) and the assignee (buyer of the trademark).
• The assignor should have the intent and must consent for the trademark assignment.
• The trademark assignment should be for a proper and adequate consideration (amount).

Trademark Assignment Agreement

The proprietor of a trademark generally assigns it to the assignee through a properly executed trademark assignment agreement. The trademark assignment agreement should be drafted keeping the following points in mind:

• The rights of the trademark should not be detrimentally affected due to the obligations contained in the agreement.
• The decision and requirement regarding whether the assignment is with or without the goodwill of the business must be explicitly mentioned.
• The agreement should show a clear purpose of the transaction/assignment.
• The geographical scope of the location where the assignee possesses the values and rights in the trademark must be mentioned.
• The transfer of the right to collect and sue damages for future and past infringements must be mentioned.
• The agreement should be duly executed, i.e. it must be stamped and notarised as per the applicable Stamp Act.
• The signatures and witnesses must be mentioned.
• The place and date of agreement execution must be mentioned.
• The date and day of the assignment along with the parties to the assignment must be mentioned.
• The agreement should mention whether or not it would be binding on the legal heirs of the assignor and assignee.

Process of Assignment of Trademark

The process of assignment of the trademark in India are as follows:

• The proprietor of the trademark (assignor) assigns his/her rights in the trademark through a trademark assignment agreement to the assignee.
• The assignor or assignee, or both, can make a joint request to register the assignment by filing an application of a trademark assignment in Form TM-P to the register of trademarks.
• Form TM-P must be filed with the registrar of the trademark within six months from the date of the assignment. The application can be filed after six months of assignment, but the fee may vary accordingly.
• The assignment must be advertised in such a manner and within the period directed by the registrar of trademarks.
• The copy of the advertisement and the registrar’s direction should be submitted to the office of the registrar of trademarks.
• Upon the receipt of the trademark assignment application (form TM-P) and required documents, the registrar of trademarks will register the assignee as the proprietor of the trademark and record the specifications of the assignment in the register.

Documents Required for Assignment of Trademark

The following documents must be submitted to the registrar of trademark along with form TM-P:

• Trademark assignment agreement.
• Trademark certificate.
• NOC from the assignor.
• Identification documents of the assignor and assignee.

Restrictions on Assignment of Trademark

The Trademarks Act, 1999 provides the following restrictions on trademark assignment:

Parallel Use Restriction  

The assignor cannot assign a trademark when the assignment results in the creation of exclusive rights in different persons with relation to the same or similar products or services and will likely deceive or cause confusion. Thus, multiple exclusive rights relating to the same/similar products or services in different persons are not allowed. It prevents the parallel use of a trademark by more than one person in relation to the same/similar products or services.

Multiple Territorial Use Restriction  

The assignor cannot assign a trademark when the assignment results in the creation of an exclusive right in different persons in various parts of India relating to the same/similar products or services. The assignor cannot assign a trademark when the assignment results in the creation of an exclusive right in different persons in various parts of India relating to the same/similar products or services sold or delivered outside India. Thus, assigning rights in different parts of India relating to the same/similar products or services is not allowed.

Benefits of Trademark Assignment

• The trademark assignment enables the trademark proprietor to encash the value of his/her brand.
• The assignee obtains the rights of an already established brand due to trademark assignment.
• The trademark assignment supports the assignor and the assignee to expand their respective businesses.
• The trademark assignment agreement enables the assignor and the assignee to establish their legal rights in case of any dispute.

Disclaimer: The materials provided herein are solely for information purposes. No attorney-client relationship is created when you access or use the site or the materials. The information presented on this site does not constitute legal or professional advice and should not be relied upon for such purposes or used as a substitute for legal advice from an attorney licensed in your state.

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Learn how to start a trademark request in Assignment Center. Assignment Center is a publicly available USPTO system for recording assignments and other documents relating to interests in patents and trademarks.

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Assignment of Trademark

GENERAL UNDERSTANDING:

As physical properties are transferred, the same way trademarks are also transferred. This transfer of trademark is called Assignment of trademark. In general terms, Assignment means transfer of title, rights, interest and benefits from one person to another person.

Thus, Assignment of trademark means transfer of Owner’s title, rights, interest and benefits to other person. The transferring party is called as “Assignor” and the receiving party is called as “Assignee”.

STATUTORY DEFINITION:

Section 2(1)(b) of the Trade Marks Act, 1999 “Assignment” means an assignment in writing by the act of the parties concerned;

WHO CAN ASSIGN A TRADEMARK:

As per section 37 of the Trade Marks Act, 1999, the person entered in the register of trademarks, as the proprietor of a trademark, shall have power to assign a trade mark and to give effectual receipt of for any consideration for such assignment.

ASSIGNABILITY OF REGISTERED OR UNREGISTERED TRADEMARK:-

As per section 38 of the Act, a registered trademark can be transferred with or without the Goodwill of the business concerned either in respect of all the goods or services in respect of which the said trademark is registered or of some of the goods or service.

Moreover, as per section 39 of the Act, an unregistered trademark may be assigned with or without the Goodwill of the business concerned.

  TYPES OF ASSIGNMENT:-

1. Assignment with Goodwill of Business: Where an assignor assigns to the assignee, the value, rights and entitlements also, as associated with a trademark with respect to the goods or services already in use by the assignor. After taking over the goodwill associated with the trademark, the assignee is free to use the trademark assigned to him for all goods or services including for the goods or services which were already in use by the Assignor. Such assignment is called assignment with Goodwill of Business.

For Example: Mr. X is the owner of a trademark “TM” who is already using the said trademark “TM” in relation to clothing and footwear. Mr.  X assign to Mr. Y the said trademark “TM” through an agreement (in writing) in relation to clothing and footwear alongwith the Goodwill associated with trademark “TM”.

In this case, Mr. X has also assigned to Mr. Y, the Goodwill associated with trademark “TM” for the business of clothing and footwear as well as for other goods or services. Therefore, Mr. Y is eligible to use the said trademark “TM”, for clothing and footwear including other goods or service dealt by Mr. Y.

2. Assignment without the Goodwill of Business: Where an assignor assigns to the assignee, the right and entitlements in a trademark with respect to the goods or services which are not in use by the assignor. In other words, where the assignor restricts the assignee with a condition that the assignee is not entitled to use the trademark assigned in relation to the goods or services already in use by the assignor. Such assignment is called assignment without the Goodwill of Business.

For Example: Mr. X is the owner of a trademark “TM” who is already using the said trademark “TM” in relation to clothing and footwear. Mr. X assign to Mr. Y the said trademark “TM” through an agreement (in writing) in relation to goods or services other than clothing and footwear without assigning the Goodwill associated with trademark “TM”.

In this case, Mr. X has not assigned to Mr. Y, the Goodwill associated with trademark “TM” for the business of clothing and footwear. Therefore, Mr. Y is not eligible to use the said trademark “TM”, for clothing and footwear. Thus, in case, Mr. Y wishes to use the said trademark “TM” in relation to other goods or services then he will be required to create separate Goodwill for trademark “TM” for such other goods or services dealt by him.

RESTRICTION ON ASSIGNMENT OF TRADEMARK:-

1. Parallel use Restriction: Where assignment results in creation of exclusive right in different persons, in relation to same or similar goods or services and the use of the trademark will be likely to deceive or cause confusion. Thus, multiple exclusive right in relation to same or similar goods or services, in different person is not allowed. This prevents the parallel use of a trademark by more than one person concerned in relation to same or similar goods or services. (Section-40)

2. Multiple Territorial use Restriction: Where the assignment results in creation of exclusive right, in different person in different parts of India, in relation to same or similar goods or services. Thus, assigning of scattered right in different parts of India is not allowed. (Section-41)  

PROCEDURE FOR ASSIGNMENT OF TRADEMARK:

REGISTRATION OF ASSIGNMENT OF TRADEMARK:

1. A person (subsequent proprietor) who becomes entitled by way of assignment, shall apply for registration of assignment before the Registrar of trademarks. (section 45)

2. After due satisfaction of the Registrar of trademarks, the Registrar shall enter the details of the assignee (subsequent proprietor) as the proprietor of the trademark assigned to him in respect of goods or services for which the assignment has been made. (section 45)

3. Where the validity of assignment is in dispute between the parties, the Registrar may refuse to register the assignment until the rights of the parties are determined by the competent court. (section 45)

4. Registrar of trademark shall dispose of the application for registration of assignment of trademark within a period of 3 (three) months from the date of receipt of application. (rule 76 of Trade Marks Rules, 2017 )

5. Registrar may, where there is reasonable doubt about the veracity of any statement or any document furnished, may call upon any person who has applied to be registered as proprietor of a registered trademark to furnish such proof or additional proof of title as the Registrar may think fit. (rule 77 of Trade Marks Rules, 2017)

6. Where in the opinion of the Registrar any document produced in proof of title of a person is not properly or sufficiently stamped, the Registrar shall impound and deal with it as per Chapter IV of the Indian Stamp Act, 1899 . (rule 78 of Trade Marks Rules, 2017)

7. Where the Registrar has allowed the registration of assignment, then there shall be entered in the register the particulars as follows(rule 84 of Trade Marks Rules, 2017):-

a) the name and address of the assignee;

b) the date of assignment;

c) where the assignment is in respect of any right in the trademark, a description of the right assigned;

d) the basis under which the assignment is made; and

e) the date on which the entry is made in the register.

RIGHT OF THE ASSIGNOR ON ASSIGNMENT OF TRADEMARK:

The assignor terminates to have his rights, title or any interest in the trademark, the moment assignment deed is executed in favour of the assignee, irrespective of the fact that the name of the assignee has not been updated in the record of the Registrar of trademarks.

In the matter of Classic Equipments Pvt. Ltd. Vs. Johnson Enterprises, 2009 (41) PTC 385 (Del), it was observed as follows:

“Once an Assignment Deed has executed, the Assignor ceases to have any right, title or interest in the property assigned. It is not open to the Assignor to cancel the assignment by means of communication”.

RIGHTS OF THE ASSIGNEE: WHEN ASSIGNMENT IS COMPLETE BUT REGISTRATION IS PENDING:

Though as per section 45 of the Act, it is mandated that the assignee shall apply before the Registrar of the trademarks to register his title. But this does not mean that recording of assignment of registered trademark asserts all rights or titles or interest in the assignee.

The reason behind this understanding are the opening words of section 45 of the Act, which says “where a person becomes entitled by assignment or transmission of a registered trademark, ……..”. Therefore, the first condition is entitlement of rights, title or interest by way of assignment or transmission of a registered trademark followed by registration of assignment of a registered trademark. Thus right in assignee does exist even before the registration of assignment.

In the matter of M/S. Modi Threads Limited vs M/S. Som Soot Gola Factory And…. on 4 th December, 1990: AIR 1992 Delhi 4, 1992 (22) DRJ 24 was observed as follows:

“It is true that the plaintiffs application for getting transferred the registered trade mark in its name in the office of the Registrar is still pending but that does not debar the plaintiff to protect the violation of the aforesaid trade mark at the hands of unscrupulous persons by filing an action in court of law for injunction. It is, prima facie, clear to me that during the interregnum period when the application of the plaintiff is kept pending for consideration by the Registrar of Trade Marks the dishonest persons cannot be allowed to make use of the said trade mark in order to get themselves illegally enriched earning upon the reputation built up qua that trade mark by the predecessor-in-interest of the plaintiff.”

The assignee of a trademark is also entitled to file a civil suit, even though the recording of assignment of registered trademark is pending before the registrar of trademarks. Moreover, section 45 does not confer any title over the trademark assigned. Instead the registration granted under section 45 is only proof of title of the trademark of assignee or the person who acquired it by way of assignment.

IMPORTANT KEY POINTS

√ Assignment is to be in writing;

√  Registered or unregistered both type of marks can be assigned;

√  Assignment can be with or without the goodwill of the business;

√  Event of assignment asserts the rights and title in an assignee not the registration thereof;

√  Registration of assignment is only prima facie proof of title of trademark;

√  Rights in an assignee exists even before registration of assignment of trademark.

Conclusion: –

Assignment of trademarks allows the Proprietor thereof to en-cash their intellect, efforts, time and money. It is equally important to register the assignment of trademark, since on registration the details of the assignee are updated in the register of trademark, this serves as a notice to public at large. Moreover, preparation of assignment agreements are also important as it involves rights, entitlements, interests and obligation including the commercial terms between the assignor and the assignee.

Disclaimer: The entire content of this document has been prepared as per the relevant provisions of the Act and rules made thereunder, applicable at the time of preparation. Though proper care has been taken to ensure accuracy, completeness and reliability of the information provided therein. The users and readers agree that the information provided in this document is not professional advice. Therefore, we assume no responsibility therefrom. Further, this write up shall not be considered as solicitation in any manner.

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Assignment of Trademark

Trademark Assignment is a written document that authorizes a registered proprietor/user of a trademark to assign/transfer the trademark and to give authorization for any consideration for such assignment. The assignor transfers a registered word, phrase, and symbol or design to another owner. Trademark Assignment takes place when there is a transfer of the owner’s power, title, and interest concerning the trademark.

In short, Assignment and Transmission of Trademark is a process in which ownership of the trademark is passed from one person to another with full or partial rights depending on the terms and conditions of the owner of the trademark. Registered and Unregistered Trademarks are assigned and transmitted from one person to another with or without the goodwill of the business concerned. A person can assign the trademark through a trademark assignment agreement.

There are various ways of assigning the trademark:

Complete Assignment

It means that the transfer of all rights together with rights to royalties, rights to further transfer, etc from one individual to the other.

Partial Assignment

It means that the transfer of ownership is restricted or specified to certain products or services.

Assignment With Goodwill

It means to transfer & assignment of the trademark is done along with all the rights & values associated with the trademark from one person to the other.

Assignment Without Goodwill

It means that the transfer of trademark by the owner in such a manner it can be utilized for any other purpose except the original one.

Here, the Current Owner or transferring party is known as the "the Assignor", and the future owner and the receiving party is known as "the Assignee".

Note: An Unregistered Trademark May Be Assigned With Or Without The Goodwill Of The Respective Business.

What are the consequences of not using the Trademark Agreement?

Without the Trademark Assignment, there will be a dusky vision on the record who currently owns the mark. Hence, the following are the consequences of not using the agreement-:

• Loss of Time
• Loss of Money
• Loss of Goodwill

What Aspects should get covered under the Trademark Assignment Agreement?

The Trademark Assignment Agreement should cover the requisite information, which is as follows:-

• Owner of the Trademark and new owner of the Trademark
• Trademark consists of and any related association with the registration.
• Matters of Disputes
• Trademark owner has the right to assign the mark and associated goodwill
• Date of trademark transferred to the new owner officially
• Payment of Consideration the assignee pay to the assignor.

What are the Benefits of Trademark Assignment?

Designing and marketing the trademark can be very draining for the company’s fund. So, the business decides to assign the trademark and legalize the intellectual property. There are various benefits of Trademark assignment, which are mentioned below-

1. Monetization of Brand

Monetize the value of your trademark and enjoy the fruits of the time & investments done for creating the brand.

2. Easy Brand Building

The assignee is also benefitted as he/she would not have to work on brand building.

3. Maintenance Of IPR

Trademark assignment helps in the maintenance of the intellectual property in terms of maintaining registrations of the same.

4. Owner Gets The Value Of The Trademark

Brand creation, which requires a lot of investment, time, and also hard work. Thus, the Trademark assignment helps the author of the Trademark in getting the cash value of the Trademark.

5. Acts As A Valid Proof

Trademark assignment can act as valid proof in case of any dispute relating to the assignment of trademark arose. The legal rights of the registered trademark owner are well protected through such agreements.

6. Owner Enjoys Various Benefits

The owner of a trademark enjoys the various benefit of dealing in an already existing trademark.

7. Expansion of Business

Trademark assignment helps in the expansion of the business in the similar market of the industry.

What Documents/Checklist is required for the Trademark Assignment?

Below mentioned documents are required for Trademark assignment, which are as follows:-

• Certificate of Trademark registration.
• Particulars (Identity and address proof) of the assignor and assignee.
• NOC from the original owner of the registered trademark.
• Description of trademark assignment with or without goodwill.
• Copy of advertisement along with a Registrar’s direction.
• Signatories and Witness.
• Notarization.
• Proof of Execution date and place.
• Power of Attorney

What are the Restrictions on Assignment of a Trademark?

Certain restrictions are required to be kept in mind while applying for Trademark Assignment, which is as follows:-

• Restriction on an assignment where multiple exclusive rights would be created.
• Restriction on an assignment where exclusive rights would be created in different parts of India.

What is the Procedure for the Trademark Assignment?

Step 1: make an application.

The very first step is to make an application for the Trademark assignment either by the assignee or the assignor or both of them.

Step 2: Submission Of Requisite Forms And The Document

The applicant shall specify all the details (original copy of duly certified documents) of the transfer and be made under Form TM-P.

Step 3: Applying The Registrar

Once the application is submitted, file the same with the Registrar of the trademark within 3 months of acquisition of proprietorship. It will specifically go for two important steps, which are:-

• Notify the applicant regarding the assignment. or
• Call to provide proof if he has some doubts/errors.

Step 4: Direction From The Registrar

When there is a trademark assignment with goodwill, the direction from the Registrar of a trademark is mandatory before the expiry of 3 months. However, it can be extended.

Step 5: Advertisement

The applicant has to make the advertisement as specified by the registrar. Moreover, the copy of the advertisement along with a copy of the Registrar’s direction should also be submitted.

Step 6: Transfer Of Ownership

Once the Registrar is satisfied with all the requisite documentation, he shall officially transfer the trademark from the assignor to the assignee.

Note- The name of the Assignee is to be registered as a new proprietor in the Register. The assignee can then use the trademark as per the terms of the Trademark assignment agreement.

What are the Penalties for Non-Compliance with a Trademark Registration?

If an individual for any reason falsely represents an unregistered trademark as registered related to any products or services; then the person by law is punishable with imprisonment for a term which may extend to 3 years or with a fine, or both.

What do you know about Trademark Assignments of Unregistered/Registered Trademark?

(i) assignment of the unregistered trademark.

Section 39 stipulates that an unregistered trademark could also be assigned with or without the goodwill of the business involved.

(ii) Assignment Of The Registered Trademark

The registered trademark can fully or partly assign with or without the goodwill of the business to another entity.

Published by

Tanuj Chandra Saxenaa (Company Secretary) Category LAW   Report

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• Judgments 20936

... deed of assignment taken by him was fraudulent and without consideration . The learned Judge held on the first issue that by virtue of the deed of assignment , which the appellant had taken from...., as to whether the deed of assignment is fraudulent and without consideration . If Najubhai had been alive, a notice would have been issued to him under O. XXI, r. 16, and he could have contested the...apply for execution unless there is a separate deed of transfer of the decree. But the present deed of assignment , which is a registered document and for which the appellant has paid a consideration ...

...learned counsel appearing for the petitioner reiterated the contentions raised in the petition and submitted that the learned arbitrator ought not to have relied on the Assignment deed produced by the petitioner and the ...therefore, it is not a valid document and the consideration was left blank in the Assignment deed and that was latter filled up by the first respondent without the knowledge and consent of the petitioner and the as...action arose and also passed the award without properly appreciating the assignment deed , which is inadmissible in evidence and which is inchoate and erred in holding that the petitioner has no locus...

... assignment claimed by Saurabh was incomplete and consequently the assignment was terminated as it was without consideration ; Raghuvar did not receive any amount, as stated in the Assignment Deed . ...and extracted it. On the face of it the deed records that the assignment was for a consideration of Rs. 1,00,000/-. It was further noticed that on 13.05.2010 the Trademark office allowed the relevant...said that it filed Civil Suit No. 19/2011 before the Court of Additional District and Sessions Judge No. 1, Jaipur City, Jaipur challenging the Deed of Assignment by seeking interim orders restraining...

...transfer the ownership rights of shares but only the right attached thereto. Moreover, respondent No. 2 has evidently not paid any amount to the petitioner in respect of execution of assignment deed and, therefore, the execution of ...agreement to sell; no consideration amount was mentioned in the assignment deed , the respondents by interpolation filled up consideration amounting to Rs. 11,92,500 which was not even adequate; since no ...careful perusal of assignment deed (at page 87) would make it clear that the consideration amount was left blank as the consideration was to be paid on actual transfer of shares and execution of the...

...contrary to normal human conduct that without payment of consideration the deed of assignment dated 3-12-1989 had been executed and notarized. He submitted that in the allegations set up in the...future, in consideration of Rs. 18,000/- (Rs. Eighteen Thousand only) paid by the assignee to the assignors.” (Underlining mine)But then the executants of the deed of assignment , the...representatives of Sudarshan Soni HUF and even though the consideration recorded in the deed of assignment was Rs. 18,000/-, the whole of the outstanding debt inclusive of due interest thereon was to be paid to...

...licence in favour of the petitioners for business of dealer in seeds under the name and style M/s. Annapurna Beej Bhandar on consideration of deed of assignment dated 01.9.2009 executed by the father of the...petitioners are seeking the above-noted relief on the basis of a deed of assignment dated September 1, 2009 executed by their father. Questioning the validity of the deed of assignment their father has...defendants the Civil Court has passed an interim order dated February 4, 2011 restraining the defendants in the suit from using the deed of assignment for obtaining any licence from any authority till...

...?(2) If Article 23 applies in this case, what is the consideration for the Assignment Deed ?”All the Judges unanimously held that the...learned Chief Justice and Naik, J., opined that “the consideration for the Assignment Deed is the total amount which was payable to the Assignor Tulsidas under the agreements between him and the persons to... consideration is as mentioned in the Deed of Assignment itself i.e no consideration ”.7. All the Judges unanimously came to the conclusion that the consideration ...

... consideration . Hence, this writ petition. 3. On 19.10.2022, this Court directed the learned Addditional Government Pleader to get instructions with regard to registration of the subject Assignment ...of India praying to issue a Writ of Mandamus, directing the 1strespondent to release the Original Registered Assignment Deed dated 29.03.2022 to the petitioner. For Petitioner : Mr.Srinath...Original Registered Assignment Deed dated 29.03.2022 to the petitioner. 2.The learned counsel for the petitioner vehemently contended that petitioner company assigned the secured asset viz., account of...

...wife of his lawyer Shri Ram Singh Saluja, Advocate, and partly in favour of others, in the teeth of the restraint order of the trial court. On the basis of the assignment deed , the assignees made an...interpretation of paragraphs 13 and 14 of the settlement deed . The other was in treating the assignment as non est because of the clear prohibition of the trial court to the parties from alienating or...transferring in any manner any part of the property involved in the suit. Having heard learned counsel for the parties at great length and having examined the settlement deed as also the assignment ...

... assignment deed (sale- deed ) dated February 18, 1963 is a sham transaction and without consideration and that it was executed with an intention to defeat the claim of the creditors. The assignment ..., according to us, is material. It is as follows:—“Whether the sale in favour of the plaintiff is sham and without consideration and has been made to defeat the claim of defendant No. 1's creditors?”The...case of the plaintiff is that the compensation amount of Rs. 14,712.39 was assigned to him by registered sale- deed ( assignment - deed ) dated Feb. 18, 1963. After assignment , defendant No. 1 ceased to have...

...stamp duty paid on assignment deed is not raised in the reply hence opposed. The question pertaining to payment of stamp duty on assignment deed is concern this is purely question of law, such a plea can be raised ...the Act. Accordingly, the stamp duty payable on assignment of debt is 8%. on total consideration . As per Kerala Stamp Act 1959, the assignment deed annexure A3 ought to have been executed on the stamp.... However, the Assignment Agreement produced is truncated and incomplete as well as the-Financial Creditor who is acting as a trustee has failed to bring into the record the relevant trust deed . The...

.... Engineering, M/s. Jaipan Appliances Ltd., Daman etc. to use the brand Jaipan without any consideration the assignment of deed of Jaipan brand was not genuine. He, therefore, held that based on these facts.... The consideration for the assignment deed was paid after two months in December, 1997. The appellants were having a bank account which up to December showed a deposit of cash of Rs. 1,001/- only. There...benefit of Notification 1/93 solely on the grounds that the transfer of brand name under the deed of assignment was not genuine. Once the assignment is there then we cannot go into the consideration paid...

...by the Court. On the basis of the assignment deed , the assignees made an application under Order XXII Rule 10 CPC for impleadment as parties to the final decree proceedings. It was contended on their...that the assignors and the assignees had knowledge of the order of the injunction passed by the Court. On those facts, this Court held that the deed of assignment was not capable of conveying any...:“4. As said before, the assignment is by means of a registered deed . The assignment had taken place after the passing of the preliminary decree in which Pritam Singh has been allotted...

..., the Assignment Deed was terminated without consideration . No amount was received by the defendant No.3 as mentioned in the Assignment Deed . The defendant No.3 has already filed Civil Suit No.19/... consideration for the assignment was never paid by the plaintiff. Since the plaintiff did not stop using trademark, despite of termination of assignment deed , left with no option the defendant No.3 filed...trademark or any identical trademark after the above assignment . The Deed of Assignment executed by defendant No.3 speaks for itself that consideration agreed upon between the parties to the Deed of...

...other debts had been transferred by the plaintiffs to the applicants by a deed of assignment dated 7th February, 1949 which was confirmed by the Custodian of Evacuee Property, Bombay, and order them...respondent Company by the document under consideration and the latter cannot claim to be transferees of the decree by an assignment in writing as contemplated by Order 21 Rule 16...Savla thereupon without having obtained, amicably or by execution of his decree, an actual assignment of the mortgage decree sought to execute that decree. It was held that although Savla had a legal...

...together with all the securities through an assignment deed . On 11-1-2007, the borrower, the respondent Company assigned to Kotak Mahindra Bank the debt due towards it from one Ravishankar Industries Pvt...complainant Company. It is pertinent to mention here that the fact of the alleged assignment deed came to the notice of the complainant Company only on 17-1-2007 when Kotak Mahindra Bank handed over a...appellants were not the employees of State Bank of Travancore when the alleged deed of assignment was entered into between State Bank of Travancore and Kotak Mahindra Bank. He further contended that...

... assignment deed NOS. 3210 and 3294 of 1995 in favour of defendants 3 and 4. Defendants 3 and 4 also resisted the suit on various grounds including that they are bona fide purchasers for valid consideration without ...3.40 Ares covered by Ext.A1, agreement for sale.(v) In case it is found that the one cent covered by Ext.B1, assignment deed No. 3210 of 1995 forms part of the 3.40 Ares covered by Ext.A1, agreement for sale, the que...first appellate court was of the view that the 3 defendant is a bona fide purchaser of the one cent covered by assignment deed No. 3210 of 1995 for valid consideration unaware of existence of Ext.A1...

...assigned his rights under Exhibit A-1 to Varghese for Rs 10,000. The deed of assignment is Exhibit A-24. Varghese paid Rs 7500 in cash and cheques, to Chettiar with a promissory note for balance of Rs...2500. The assignment deed refers to the sale deed obtained by Mathew. It states that the legal representatives of Sait have sold the estate to Mathew who was fully aware of the agreement for sale...Varghese armed with the deed of assignment Exhibit A-24 along with Chettiar instituted OS No. 41 of 1966 for specific performance of the agreement Exhibit A-1. The suit was instituted against Mathew and...

...Respondents 1 and 2. Respondent 1, in order to repay the dues of the Bank, signed an assignment deed dated 8-10-2003 with the Chief Manager, Basavanagudi Branch, Bangalore for assignment of the trade...:“Now this deed of assignment of trade mark “Eenadu” witnesseth as follows:1. The assignor hereby grants, transfers and assigns upon the assignee... assignment (the abovesaid ten years).7. The period of assignment granted under this deed shall come to an end on the expiry of the period of ten years from the date...

...7600 was not paid as a part of the consideration of the deed of assignment but under a different and collateral agreement executed by the defendant in favour of the plaintiff for a sum of Rs 20,000...registered assignment deed dated October 31, 1957 executed by the latter in favour of the former purporting to transfer the decree in OS No. 88 of 1949 on the file of Court of Subordinate Judge, Kakinada...granted a decree for cancellation of the assignment deed aforesaid on the plaintiff's paying Rs 13,000 to the defendant. Under the decree defendant was required to deliver possession of the suit...

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