Nature of registered trade mark
s 36
Open ↗36. A registered trade mark is personal property.
Source
Trade Marks Act 1998 PART 4 — REGISTERED TRADE MARK AS OBJECT OF PROPERTY
Compiled from an official source version. Later amendments or repeals may not be reflected; the official text prevails. · Read the official text ↗
Co-ownership of registered trade mark
s 37
Open ↗37.—(1) Where a registered trade mark is granted to 2 or more persons jointly, each of them is entitled, subject to any agreement to the contrary, to an equal undivided share in the registered trade mark. (2) Subsections (3) to (8) apply where 2 or more persons are co‑proprietors of a registered trade mark, by virtue of subsection (1) or otherwise. (3) Subject to any agreement to the contrary, each co-proprietor is entitled, by himself, herself or itself or the co‑proprietor’s agents, to do for the co‑proprietor’s own benefit and without the consent of or the need to account to the other or others, any act which would otherwise amount to an infringement of the registered trade mark. (4) One co-proprietor may not, without the consent of the other or others —(a) grant a licence to use the registered trade mark; or (b) assign or charge that co‑proprietor’s share in the registered trade mark. (5) Infringement proceedings may be brought by any co‑proprietor, but the co‑proprietor may not, without the permission of the Court, proceed with the action unless the other, or each of the others, is either joined as a claimant or added as a defendant.[Act 25 of 2021 wef 01/04/2022] (6) A co-proprietor who is added as a defendant under subsection (5) is not to be made liable for any costs in the action unless that co‑proprietor takes part in the proceedings. (7) Nothing in subsection (5) affects the granting of interlocutory relief on the application of a single co‑proprietor. (8) Nothing in this section affects the mutual rights and obligations of trustees or personal representatives, or their rights and obligations as such.
Assignment, etc., of registered trade mark
s 38
Open ↗38.—(1) A registered trade mark is assignable and transmissible in the same way as other personal or movable property, and is so assignable or transmissible either in connection with the goodwill of a business or independently. (2) An assignment or transmission of a registered trade mark may be partial, that is, limited so as to apply in relation to some but not all of the goods or services for which the trade mark is registered. (3) An assignment of a registered trade mark, or an assent relating to a registered trade mark, is not effective unless it is in writing signed by or on behalf of the assignor or (as the case may be) a personal representative. (4) Subsection (3) may be satisfied in a case where the assignor or personal representative is a body corporate by the affixing of its seal. (5) Subsections (1) to (4) apply to assignment by way of security as they apply to any other assignment. (6) A registered trade mark may be the subject of a charge in the same way as other personal or movable property. (7) Nothing in this Act is to be construed as affecting the assignment or transmission of an unregistered trade mark as part of the goodwill of a business.
Registration of transactions affecting registered trade mark
s 39
Open ↗39.—(1) On application being made to the Registrar by —(a) a person claiming to be entitled to an interest in or under a registered trade mark by virtue of a registrable transaction; or (b) any other person claiming to be affected by such a transaction, the prescribed particulars of the transaction must be entered in the register. (2) The following are registrable transactions under subsection (1):(a) an assignment of a registered trade mark or any right in it; (b) the grant of a licence under a registered trade mark; (c) the granting of any security interest (whether fixed or floating) over a registered trade mark or any right in or under it; (d) the making by personal representatives of an assent in relation to a registered trade mark or any right in or under it; (e) an order of the Court or other competent authority transferring a registered trade mark or any right in or under it. (3) Until an application has been made for the registration of the prescribed particulars of a registrable transaction mentioned in subsection (2)(a), (c), (d) or (e), the transaction is ineffective as against a person acquiring a conflicting interest in or under the registered trade mark in ignorance of the transaction. (4) A person who becomes the proprietor of a registered trade mark by virtue of any registrable transaction mentioned in subsection (2)(a), (c), (d) or (e) is not entitled to damages, an account of profits or statutory damages under section 31(5)(c) in respect of any infringement of the registered trade mark occurring after the date of the transaction and before the date of the application for the registration of the prescribed particulars of the transaction. (5) To avoid doubt, subsections (3) and (4) do not apply to any registrable transaction relating to —(a) a licence under a registered trade mark; or (b) any right in or under the licence. (6) Provision may be made by rules as to —(a) the amendment of registered particulars relating to a licence so as to reflect any alteration of the terms of the licence; and (b) the removal of such particulars from the register —(i) where it appears from the registered particulars that the licence was granted for a fixed period and that period has expired; or (ii) where no such period is indicated and, after such period as may be prescribed, the Registrar has notified the parties of his or her intention to remove the particulars from the register. (7) Provision may also be made by rules as to the amendment of or removal from the register of particulars relating to a security interest on the application of, or with the consent of, the person entitled to the benefit of that interest.
Trusts and equities
s 40
Open ↗40.—(1) No notice of any implied or constructive trust is to be entered in the register, and the Registrar is not to be affected by any such notice.[4/2014] (2) A notice of an express trust or of the beneficiary of an express trust, or both, may be entered in the register; but —(a) the Registrar is not to be affected by any such notice in the register; and (b) to avoid doubt, a failure to enter such notice in the register does not affect any rights or duties under the trust.[4/2014] (3) Subject to the provisions of this Act, equities in respect of a registered trade mark may be enforced in like manner as in respect of other personal or movable property.
Application for registration of trade mark as object of property
s 41
Open ↗41.—(1) The provisions of sections 36, 37, 38 and 40 apply, with the necessary modifications, in relation to an application for the registration of a trade mark as they apply in relation to a registered trade mark. (2) For the purposes of subsection (1), the reference in section 37(1) to the granting of a registration is to be construed as a reference to the making of an application for the registration of a trade mark. (3) Any person claiming to be —(a) entitled to an interest in or under an application for registration of a trade mark by virtue of a registrable transaction; or (b) affected by a registrable transaction, may give to the Registrar notice of the prescribed particulars of the transaction. [3/2007] (4) The following are registrable transactions under subsection (3):(a) an assignment of an application for registration of a trade mark or any right in it; (b) the grant of a licence under an application for registration of a trade mark; (c) the granting of any security interest (whether fixed or floating) over an application for registration of a trade mark or any right in or under it; (d) the making by personal representatives of an assent in relation to an application for registration of a trade mark or any right in or under it; (e) an order of the Court or other competent authority transferring an application for registration of a trade mark or any right in or under it.[3/2007] (5) The Registrar must maintain a record of each notice given to the Registrar under subsection (3).[3/2007] (6) Until the notice mentioned in subsection (3) has been given to the Registrar in respect of a transaction mentioned in subsection (4)(a), (c), (d) or (e), the transaction is ineffective as against a person acquiring a conflicting interest in or under the application for registration of a trade mark in ignorance of the transaction.[3/2007] (7) To avoid doubt, subsection (6) does not apply to any registrable transaction relating to —(a) a licence under an application for registration of a trade mark; or (b) any right in or under the licence.[3/2007] (8) Provision may be made by rules as to —(a) the amendment of the record maintained by the Registrar relating to the particulars of a grant of a licence under an application for registration of a trade mark, notice of which has been given to the Registrar under subsection (3), so as to reflect any alteration of the terms of the licence; and (b) the removal from the records maintained by the Registrar of the particulars of a grant of a licence under an application for registration of a trade mark, notice of which has been given to the Registrar under subsection (3) —(i) where it appears from the particulars that the licence was granted for a fixed period and that period has expired; or (ii) where no such period is indicated and, after such period as may be prescribed, the Registrar has notified the parties of his or her intention to remove the particulars from the records.[3/2007] (9) Provision may also be made by rules as to the amendment of the record maintained by the Registrar relating to, or the removal from the records maintained by the Registrar of, the particulars of the granting of a security interest over an application for registration of a trade mark on the application of, or with the consent of, the person entitled to the benefit of that interest.[3/2007]
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