1. The trade mark as property

Date Published

Property is a bundle of rights or interests that attach to a thing. Property rights attach to things that are either tangible (e.g. a car or house) or intangible (e.g. intellectual property).

Property is generally divided into two major categories – real property (land) and personal property. A registered trade mark is a form of personal property (subsection 21(1)).  A trade mark that is subject to an application for registration is also personal property. This is evidenced by subsection 106(1), which provides that ‘trade marks for which registration is sought’ may be assigned or transmitted, and Part 11, which allows for voluntary recording of a claim to interest in respect of same.

Rights in a trade mark are enforceable in the same way as rights in any other personal property. Trade mark owners may take a civil action to protect their rights, as may other persons with a legal or equitable interest in the trade mark.

A registered owner may deal with the trade mark as absolute owner, subject to any rights appearing in the Register to be vested in another person (subsection 22(1)). However, this provision only protects a purchaser in good faith for value without notice of any fraud on the part of the owner (subsection 22(2)). A right recorded in the Register that is a Personal Property Securities Act security interest (PPSA security interest), defined in section 6, does not affect the owner’s ability to deal with the trade mark (subsection 22(2A)).

Any equitable interest in a registered trade mark may be enforced against the owner (subsection 22(3)), unless it is a PPSA security interest (subsection 22(4)).

See Part 44 Claim of Interest or Rights in a Trade Mark for more information on claiming an interest in a trade mark.