Create Time 2017-07-05 03:07 Views：7452
Trademark owners can take on a variety of entities – individuals, corporations, limited liability companies, partnerships, trusts, and many others. Generally, the individual or company that uses the mark should be the legal owner, unless trademark rights were sold or transferred to another entity. The trademark owner has the sole power to enforce rights under that trademark.
So, if you want to register a trademark that’s being used by your company, should you file it under your name or your company’s name? In this blog we go through the finer points of registering your trademark under your company name and then compare it to registering under your own name. Then you can be the judge.
1. It is consistent with the usage of the trademark. As mentioned above, the entity that uses the trademark should be the owner. A trademark registration may be invalidated if the owner does not control the goods or services under the trademark that’s being provided. If you are a co-owner of a corporation, that trademark belongs to the business more than it does to you. The trademark represents the products and services in this case, not the face of the people selling them.
However, if you are a self-employed entrepreneur/startup owner, you may want to be the face of your brand. Being the sole owner as well as the brand advocate may not be represented by registering under your business name. Celebrities often register under their own names as their name literally sells the brand.
2. It adds value to the company. We mentioned in a previous post that a trademark is an important asset to a company. Since a trademark’s value is quantifiable, registering a trademark under a corporation directly adds this value to the company.Due to their quantifiable nature, trademarks can be used as security interests in financial transactions and can give the company that possesses the mark an advantage in business negotiations.
3. The business can better enforce the trademark rights. In 2013, a court ruled that companies cannot claim infringement if the mark was not owned by the company itself. In this specific case, the mark was registered under the company’s sole shareholder. Because enforcement of trademark rights lies solely with the owner, the sole shareholder would have to present themselves in court to enforce the registration.
1. If the company goes bankrupt, control of the trademark is not lost. Under bankruptcy laws, the company’s assets (including trademarks) must be sold off or transferred. However, this could be avoided if the company never owned a trademark. Additionally, if the original owners of the company are concerned about losing control of the company in the future (for example, with the addition of shareholders), they could also register the trademark under an individual.
2. The individual could be held personally liable in litigation cases. This is because the individual owns the trademark. If the company had registered the mark instead, no one associated with the company will be implicated. This is definitely a downside to registering as an individual. You don't get the same sort of protections afforded by a company.
3. Total independence. You are the trademark owner. You have the freedom to use and license your trademark as you see fit.
In summary, deciding who the legal owner of your trademark should depend on a variety of factors. Each option has its own advantages and disadvantages. In the end, a lot will come down to your business structure and your level of risk. A corporation cannot litigate their trademark as an individual; but in a competitive market they may want to hedge their bets against bankruptcy. An individual takes on a lot of risk but has total freedom over their trademark.
If you need assistance making this decision, Witmart can help you. We are just one phone call away. Visit our website today to book your free consultation.
Disclaimer: This website is not intended to offer legal advice or to be a substitute for a consultation on a case-by-case basis with an attorney. The information provided above is meant for informational purposes only and may be subject to change.
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