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Trademarks in holding, curator left empty handed in bankruptcy - register intellectual property rights in holding not in the actual working company.

Trademarks in holding, curator left empty handed in bankruptcy - register intellectual property rights in holding not in the actual working company.

In 2013 over 13,800 companies went bankrupt. In case of a bankruptcy, however, a company’s goodwill does not disappear. That is why a curator will always explore possibilities of a restart. Why registering intellectual property rights (as trademarks) in the holding in stead of the actual working company?

Since 2004 a national competition has been organized under the name ‘The Clash of the Cover Bands’. At the conception of the idea the “inventor” of the show registered the trademark on his own name. A foundation has been organizing the completion since 2011. This foundation filed for bankruptcy in June of 2013. A battle over the trademark rights emerges. The trademarks are still in the name of the original owner, the curator, however, claims that the trademarks have been transferred in 2011, since that is the year the foundation took over the activities.

The court does not agree. The foundation organized the competition, but that does not make it the owner of the trademarks. Trademarks can only be transferred in writing, and this has not happened. Since the foundation has no trademark rights, the curator could also not transfer them to a third party for a restart. Sale by the original owner is valid. This case clearly illustrates that it is advisable to register intellectual property rights (such as trademarks and designs) in the name of a holding, and not the actual working company. In case of a bankruptcy of the working company the goodwill is secured.

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?
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