MARCHI

 

The trademark is an intangible asset, legally required and governed and as such the owner may dispose of it with acts of will/judicial, according to needs and interest: therefore, it can be sold, licensed to third parties for the total or for a part of the products or services. In the case of a licensed trademark, the trademark owner retains its property, but allows its use by other companies against payment of royalties. In certain types of contract, the licensor retains a certain degree of control over the licensee, in order to ensure maintenance of a certain level of quality. Generally, trademark licences are granted within a framework of various contrasts, such as franchising agreements (where the franchisor allows the franchisee to use a commercial "package" that not only includes use of the trademark, but also the know-how, consumer services, software, interior decoration, etc.) or licence contracts of other rights linked to Intellectual Property (patents, know-how and provision of technical information required for a certain product).

Furthermore, the licence may be exclusive or non-exclusive, and may relate to all or part of the state territory. In the case of a non-exclusive licence, the licensee must expressly commit to using the trademark to distinguish the product or services similar to those placed on the market or offered in the state territory, with the same trademark, by the owner or by other licensees. However, any deception about those product or service features that are essential for public appreciation, must not derive from the transfer or licensing of the trademark, the penalty being its forfeiture.

Although there is no obligation (the Italian IPC indicates that a trademark can be sold or transferred independently by the owning company), it is in the interest of the new owner of the rights of the trademark to present to the IPTO a transcription request, together with a copy of the acquisition contract of the rights (or an excerpt): the transcriptions are not mandatory but have declaratory effectiveness of the objection to the third party.

The transcription application can be filed by one party to the deed, or by the old or by the new owner/proprietor of the trademark. If the trademark has been sold, the trademark proprietor contained in the deed must be the same person stated as such in the national register of trademarks. Therefore, if the trademark has been repeatedly sold, the purchaser must make sure that all previous proprietors have been entered in the register, and that there is no discontinuity. If so, it is necessary to register all contracts of transfer of the property.

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