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Varumärken och patent ur ett sakrättsligt perspektiv

Wallin, Louise (2001)
Department of Law
Abstract
The exclusive right to a trade mark can originate in registration or in consequence of the use which has been made of it. The term of a registered trade mark is ten years. Registration may however be renewed for further periods of ten years. The right to a trade mark originating in consequence of use is valid as long as such right can be derived from usage. Exclusive right to a Community trade mark can only originate in registration. The right to a patent is also an exclusive right originating in registration. The term of the patent is twenty years and the exclusive right is only valid in countries where patent has been granted. Trade marks, Community trade marks, and patents can be subject to levy of execution as well as involved in... (More)
The exclusive right to a trade mark can originate in registration or in consequence of the use which has been made of it. The term of a registered trade mark is ten years. Registration may however be renewed for further periods of ten years. The right to a trade mark originating in consequence of use is valid as long as such right can be derived from usage. Exclusive right to a Community trade mark can only originate in registration. The right to a patent is also an exclusive right originating in registration. The term of the patent is twenty years and the exclusive right is only valid in countries where patent has been granted. Trade marks, Community trade marks, and patents can be subject to levy of execution as well as involved in bankruptcy. The right to trade marks, Community trade marks, and patents may be transferred. The successor acquires rights in rem through the assignment, as the element of transmittal is physically impossible and registration of the transfer has no such effect. However, transfer of Community trade marks requires entry in the register in order for the successor to invoke the rights arising from the registration of the Community trade mark. Entry in the register is also necessary for the transfer to be effective vis-à-vis third parties. Grant of license can be entered into the register, but regarding national trade marks and patents, rights in rem are acquired through the assignment. Patents, trade marks, and Community trade marks can be given as security. Regarding patents and trade marks the security is dependent on registration of the assignment of security. It is not possible to acquire security in patents and trade marks in good faith. Security in Community trade marks need not be registered, but the creditor's rights vis-à-vis third parties are dependent upon registration. Security in Community trade marks can be acquired in good faith. Because it is impossible to physically possess intellectual properties, and since the register is not complete, trade marks and patents can not be acquired in good faith. Where the proprietor sells the intellectual property twice, the principle of priority would most likely apply and priority would therefore be given to the first successor who, through the assignment of transfer, is protected against subsequent legal acts by the transferor. The principle of priority is considered to apply in situations of double transfer of the intellectual property, double transfer of the license and double grant of license. In a situation where the proprietor has given the patent or trade mark as security twice, priority is given to the creditor who is first to apply for registration of the assignment. As registration of the assignment of security has effects vis-à-vis third parties, the creditor needs only respect licenses granted previous to the assignment of security when levy is put into execution. In competition between grant of license and subsequent transfer of the intellectual property, the general rule that transfer cuts off the grant of license is considered to apply. This rule has however been criticized as being unreasonable since licensing of intellectual property represents an exclusive right to unique property. Hence, it has been argued that the principle of giving priority to the first transfer of rights should apply in this situation also. With regards to situations of competition between grant of license and subsequent transfer, the principle of priority has however not been confirmed by law or tried in a court of law. Until such confirmation is given the rule that transfer cuts off grant of license must be considered to apply. Regarding Community trade marks, priority is given to the transfer which is first entered into the register. (Less)
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author
Wallin, Louise
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Förmögenhetsrätt, Immaterialrätt, Sakrätt
language
Swedish
id
1562866
date added to LUP
2010-03-08 15:55:30
date last changed
2010-03-08 15:55:30
@misc{1562866,
  abstract     = {The exclusive right to a trade mark can originate in registration or in consequence of the use which has been made of it. The term of a registered trade mark is ten years. Registration may however be renewed for further periods of ten years. The right to a trade mark originating in consequence of use is valid as long as such right can be derived from usage. Exclusive right to a Community trade mark can only originate in registration. The right to a patent is also an exclusive right originating in registration. The term of the patent is twenty years and the exclusive right is only valid in countries where patent has been granted. Trade marks, Community trade marks, and patents can be subject to levy of execution as well as involved in bankruptcy. The right to trade marks, Community trade marks, and patents may be transferred. The successor acquires rights in rem through the assignment, as the element of transmittal is physically impossible and registration of the transfer has no such effect. However, transfer of Community trade marks requires entry in the register in order for the successor to invoke the rights arising from the registration of the Community trade mark. Entry in the register is also necessary for the transfer to be effective vis-à-vis third parties. Grant of license can be entered into the register, but regarding national trade marks and patents, rights in rem are acquired through the assignment. Patents, trade marks, and Community trade marks can be given as security. Regarding patents and trade marks the security is dependent on registration of the assignment of security. It is not possible to acquire security in patents and trade marks in good faith. Security in Community trade marks need not be registered, but the creditor's rights vis-à-vis third parties are dependent upon registration. Security in Community trade marks can be acquired in good faith. Because it is impossible to physically possess intellectual properties, and since the register is not complete, trade marks and patents can not be acquired in good faith. Where the proprietor sells the intellectual property twice, the principle of priority would most likely apply and priority would therefore be given to the first successor who, through the assignment of transfer, is protected against subsequent legal acts by the transferor. The principle of priority is considered to apply in situations of double transfer of the intellectual property, double transfer of the license and double grant of license. In a situation where the proprietor has given the patent or trade mark as security twice, priority is given to the creditor who is first to apply for registration of the assignment. As registration of the assignment of security has effects vis-à-vis third parties, the creditor needs only respect licenses granted previous to the assignment of security when levy is put into execution. In competition between grant of license and subsequent transfer of the intellectual property, the general rule that transfer cuts off the grant of license is considered to apply. This rule has however been criticized as being unreasonable since licensing of intellectual property represents an exclusive right to unique property. Hence, it has been argued that the principle of giving priority to the first transfer of rights should apply in this situation also. With regards to situations of competition between grant of license and subsequent transfer, the principle of priority has however not been confirmed by law or tried in a court of law. Until such confirmation is given the rule that transfer cuts off grant of license must be considered to apply. Regarding Community trade marks, priority is given to the transfer which is first entered into the register.},
  author       = {Wallin, Louise},
  keyword      = {Förmögenhetsrätt,Immaterialrätt,Sakrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Varumärken och patent ur ett sakrättsligt perspektiv},
  year         = {2001},
}