Trademark Law Treaty:Article 11 Change in Ownership

Trademark Law Treaty

Article 11 Change in Ownership

Geldend

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1. [Change in the Ownership of a Registration]

a)

Where there is a change in the person of the holder, each Contracting Party shall accept that a request for the recordal of the change by the Office in its register of marks be made in a communication signed by the holder or his representative, or by the person who acquired the ownership (hereinafter referred to as ‘new owner’) or his representative, and indicating the registration number of the registration concerned and the change to be recorded. As regards the requirements concerning the presentation of the request, no Contracting Party shall refuse the request,

(i)

where the request is presented in writing on paper, if it is presented, subject to paragraph 2a), on a form corresponding to the request Form provided for in the Regulations,

(ii)

where the Contracting Party allows the transmittal of communications to the Office by telefacsimile and the request is so transmitted, if the paper copy resulting from such transmittal corresponds, subject to paragraph 2a), to the request Form referred to in item (i).

b)

Where the change in ownership results from a contract, any Contracting Party may require that the request indicate that fact and be accompanied, at the option of the requesting party, by one of the following:

(i)

a copy of the contract, which copy may be required to be certified, by a notary public or any other competent public authority, as being in conformity with the original contract;

(ii)

an extract of the contract showing the change in ownership, which extract may be required to be certified, by a notary public or any other competent public authority, as being a true extract of the contract;

(iii)

an uncertified certificate of transfer drawn up in the form and with the content as prescribed in the Regulations and signed by both the holder and the new owner;

(iv)

an uncertified transfer document drawn up in the form and with the content as prescribed in the Regulations and signed by both the holder and the new owner.

c)

Where the change in ownership results from a merger, any Contracting Party may require that the request indicate that fact and be accompanied by a copy of a document, which document originates from the competent authority and evidences the merger, such as a copy of an extract from a register of commerce, and that that copy be certified by the authority which issued the document or by a notary public or any other competent public authority, as being in conformity with the original document.

d)

Where there is a change in the person of one or more but not all of several co-holders and such change in ownership results from a contract or a merger, any Contracting Party may require that any co-holder in respect of which there is no change in ownership give his express consent to the change in ownership in a document signed by him.

e)

Where the change in ownership does not result from a contract or a merger but from another ground, for example, from operation of law or a court decision, any Contracting Party may require that the request indicate that fact and be accompanied by a copy of a document evidencing the change and that that copy be certified as being in conformity with the original document by the authority which issued the document or by a notary public or any other competent public authority.

f)

Any Contracting Party may require that the request indicate

(i)

the name and address of the holder;

(ii)

the name and address of the new owner;

(iii)

the name of a State of which the new owner is a national if he is the national of any State, the name of a State in which the new owner has his domicile, if any, and the name of a State in which the new owner has a real and effective industrial or commercial establishment, if any;

(iv)

where the new owner is a legal entity, the legal nature of that legal entity and the State, and, where applicable, the territorial unit within that State, under the law of which the said legal entity has been organized;

(v)

where the holder has a representative, the name and address of that representative;

(vi)

where the holder has an address for service, such address;

(vii)

where the new owner has a representative, the name and address of that representative;

(viii)

where the new owner is required to have an address for service under Article 4(2)b), such address.

g)

Any Contracting Party may require that, in respect of the request, a fee be paid to the Office.

h)

A single request shall be sufficient even where the change relates to more than one registration, provided that the holder and the new owner are the same for each registration and that the registration numbers of all registrations concerned are indicated in the request.

i)

Where the change of ownership does not affect all the goods and/or services listed in the holder's registration, and the applicable law allows the recording of such change, the Office shall create a separate registration referring to the goods and/or services in respect of which the ownership has changed.

2. [Language; Translation]

a)

Any Contracting Party may require that the request, the certificate of transfer or the transfer document referred to in paragraph 1 be in the language, or in one of the languages, admitted by the Office.

b)

Any Contracting Party may require that, if the documents referred to in paragraph 1b)(i) and (ii), c) and e) are not in the language, or in one of the languages, admitted by the Office, the request be accompanied by a translation or a certified translation of the required document in the language, or in one of the languages, admitted by the Office.

3. [Change in the Ownership of an Application]

Paragraphs 1 and 2 shall apply, mutatis mutandis, where the change in ownership concerns an application or applications, or both an application or applications and a registration or registrations, provided that, where the application number of any application concerned has not yet been issued or is not known to the applicant or his representative, the request otherwise identifies that application as prescribed in the Regulations.

4. [Prohibition of Other Requirements]

No Contracting Party may demand that requirements other than those referred to in paragraphs 1 to 3 be complied with in respect of the request referred to in this Article. In particular, the following may not be required:

(i)

subject to paragraph 1c), the furnishing of any certificate of, or extract from, a register of commerce;

(ii)

an indication of the new owner's carrying on of an industrial or commercial activity, as well as the furnishing of evidence to that effect;

(iii)

an indication of the new owner's carrying on of an activity corresponding to the goods and/or services affected by the change in ownership, as well as the furnishing of evidence to either effect;

(iv)

an indication that the holder transferred, entirely or in part, his business or the relevant goodwill to the new owner, as well as the furnishing of evidence to either effect.

5. [Evidence]

Any Contracting Party may require that evidence, or further evidence where paragraph 1c) or e) applies, be furnished to the Office where that Office may reasonably doubt the veracity of any indication contained in the request or in any document referred to in the present Article.

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