Nature of Right
A registered trade mark is personal property. Where two or more persons are registered as joint owners of a trade mark, the rights to the use of the trade mark are vested in those persons as if those rights were vested in a single person.
The rights of any one of the persons who are registered as joint owners of a trade mark are deemed to be infringed by any other of the joint owners who use the trade mark on or other relation to goods or services in respect of which the trade mark is so registered; but with which both or all of the joint owners are not and have not been connected in the course of trade.
A registered trade mark may be transferred by assignment, will or operation of law in the same way as moveable property and shall be so transferrable either in connection with the goodwill of a business or independently. A transfer of a whole business shall include the transfer of the trade mark, except where there is an agreement to the contrary or circumstances clearly dictate otherwise.
An assignment, transmission or other transfer of a registered trade mark may be partial. It may be limited so as to apply in relation to some but not all of the goods or services for which the trade mark is registered or in relation to use of the trade mark in a particular manner or a particular locality.
An assignment of a registered trade mark, or a vesting assent relating to a registered trade mark, is not effective unless it is in writing signed by or on behalf of the assignor. A registered trade mark may be the subject of a charge.
The following are registrable transactions —
- an assignment of a registered trade mark or any right in it;
- the grant or assignment of a licence under a registered trade mark;
- the granting of any security interest (whether fixed or floating) over a registered trade mark or any right in or under it;
- matters arising from the operation of law which affect the ownership of a registered trade mark, the making by a personal representative of a vesting assent in relation to a registered trade mark or any right in or under it; and
- an order of a court, the appropriate court or other competent authority transferring a registered trade mark or any right in or under it.
Registration of transactions
On application being made to the Controller in the prescribed manner by a person claiming to be entitled to an interest in or under a registered trade mark by virtue of a registrable transaction, or any other person claiming to be affected by such a transaction, particulars of the transaction shall be entered in the register in the prescribed manner.
Until an application has been made for registration of the prescribed particulars of a registrable transaction—
- the transaction shall be ineffective as against a person acquiring a conflicting interest in or under the registered trade mark in ignorance of it; and
- a person claiming to be a licensee by virtue of the transaction shall not have statutory protections.
Until an application has been made to enter the particulars of a registrable transaction in the register, the transaction shall be ineffective as against a person acquiring a conflicting interest in or under the registered trade mark in ignorance of that transaction.
Requirement to Register
Where a person becomes the owner or a licensee of a registered trade mark by virtue of a registrable transaction, then unless—
- an application for registration of the prescribed particulars of the transaction is made before the end of the period of six months beginning with the date of the transaction, or
- the Court is satisfied that it was not practicable for such an application to be made before the end of that period and that an application was made as soon as practicable thereafter,
that person shall not be entitled to damages or an account of profits in respect of any infringement of the registered trade mark occurring after the date of the transaction and before the application for registration of the prescribed particulars is made.
Trusts and equities.
No notice of any trust (express, implied or constructive) shall be entered in the register, and the Controller shall not be affected by any such notice.
Equities in respect of a registered trade mark may be enforced in like manner as in respect of other personal property.
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