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An Intellectual Property Agreement is a contract which allows intellectual property rights to be transferred to another person. There are two main methods for this to be effected, either by licence or by assignment. An assignment is a transfer of the rights of the copyright owners in the work to another person, while a licence is merely a permission or authorisation to do an act which would otherwise be an infringement of the copyright, with no transfer of any proprietary rights. Obtaining professional legal advice from a Commercial Lawyer may be immensely beneficial to fully understand Intellectual Property Agreements.

It is important to note the intention and effect of a particular transaction to see whether it is an assignment or a licence. If an assignment is intended and the words of an instrument are effective to constitute an assignment, the absence of the words “assign” or “grant” is irrelevant. A licensee, unless he/she is an exclusive licensee, cannot pursue an infringement action. It is important to understand the objectives and wishes of each party to appropriately characterise the transaction. There is also a difficulty of distinguishing between an assignment and an exclusive licence, and between a partial assignment and a licence. An assignee is able to do so, as far as his/her part is concerned if he/she is only assigned part of the copyright. However, an assignment of copyright “does not, without more, carry with it accrued rights of action for infringement”. Holistic and sound legal advice in from a Commercial Lawyer may be of great utility in this diverse, complex area of law.

In addition there are different types of licences. An ordinary ‘licence’ is a permission to the licensee to do something which would otherwise be unlawful. It leaves the licensor at liberty to do it himself and to grant licences to other persons also. A ‘sole licence’ is a permission to the licensee to do it, and no one else, save that it leaves the licensor himself at liberty to do it. An ‘exclusive licence’ is a permission which is exclusive to the licensee, so that even the licensor himself is excluded as well as anyone else. Sound legal advice from a skilled Commercial Lawyer may be advantageous to ensure that an assignment of licence of IP rights adequately reflects your wishes.

Furthermore, any person having a right in respect of or interest in a trade mark registration or application for registration can apply to the Trade Marks Office to have their claim to that right or interest recorded. It is an entirely voluntary procedure. The purpose of recording an interest is to enable the Registrar to keep a record of claims to interests in, and rights in respect of, trade marks for which registration is sought. Any person having recorded their right in respect of or interest in a trade mark will be given notice by the Registrar of any crucial actions that the trade mark owner, or another party, may make in relation to that trade mark, and will be given time in order to obtain a court order to prevent that action from taking place. This includes, inter alia, where the owner applies to assign the mark to another party, a party applies to cancel that person’s interest in or right in respect of the mark, a party applies to remove the mark on the basis of non-use and a party applies to cancel the registration. Professional legal advice in from a Commercial Lawyer may be of great assistance in explaining all issues and considerations regarding Intellectual Property Agreements.

If you would like further information or wish to discuss your regarding Intellectual Property matter with us please do not hesitate to contact us by telephone on (02) 9233 4048 or by email to info@navado.com.au. Please peruse our "Locations" tab to see our other branch locations.

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

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