آخر تحديث - 3 ديسمبر 2020
In the above case, it was also decided that a licensing agreement could be inferred from the facts. A written licensing agreement regarding the use of a trademark is not necessary to maintain control of a trademark. Maintaining brand control can be inferred from the condition and quality of services manufactured or provided. 2 In certain circumstances, a tacit IP licence is created without a formal licensing agreement where the conduct of the parties indicates that the IP right holder wished to grant certain rights to the other party. Courts often grant tacit licenses in cases where one party has produced, at the request of another, a copyrighted work under a contract that does not expressly confer copyright on the purchaser after the payment and conclusion of the work. An oral license is an unspoken contract. The facts and circumstances of the case or the conduct of the parties give rise to tacit agreements. The absence of a written licensing agreement may weaken the right to trademark control, but a written agreement is not necessary to maintain control or ownership of a trademark. Ownership of the trademark may be transferred by the owner of another person as part of a transfer agreement. The right to use a trademark may be granted by one trademark holder (conedant) to another party (licensee) on the basis of a licensing agreement.
The agreement must provide for the requirement for the purchaser to produce products of equal or superior quality to that of the licensee. The registration of contracts and licensing agreements with the National Patent Authority is necessary. In the absence of registration, these agreements are considered invalid. Article 1701: Nature and extent of commitments 1. Each party provides adequate and effective protection and enforcement of intellectual property rights to the nationals of another contracting party on its territory, while ensuring that measures to enforce intellectual property rights do not themselves become obstacles to legitimate trade. 2. In order to ensure adequate and effective protection and respect for intellectual property rights, each party in this chapter and the material provisions of (a) of the Geneva Convention for the Protection of Phonogram Producers from the Illegal Reproduction of their 1971 phonograms (Geneva Convention) comes into force; b) the Bern Convention for the Protection of Literary and Artistic Works of 1971 (Bern Convention); (c) the 1967 Paris Agreement on the Protection of Industrial Property (Paris Convention); and (d) the 1978 International Convention for the Protection of Plant Breeding (UPOV Convention) or the 1991 International Convention for the Protection of Plant Varieties (UPOV Convention). Where a contracting party has not adhered to the specified text of such an agreement on the date of entry into force of this agreement, or before the effective date of this agreement, it does everything in its power to accede to it. 3) Appendix 1701.3 applies to the contracting parties covered by this schedule. Article 1702: Wider Protection A party may, in its domestic law, implement a broader protection of intellectual property rights than is required by this agreement, provided that such protection is not incompatible with this agreement.
Article 1703: Inner Treatment 1. Each party gives the nationals of another contracting party treatment that is no less favourable than it is to its own nationals with regard to the protection and respect of all intellectual property rights. In the case of sound recordings, each party gives such treatment to producers and performers of another party, except that one party may limit the rights of performers of another contracting party with respect to the secondary use of phonograms to the rights granted to their nationals in the territory of that other party.