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Yes. A registered Trademark can be assigned or transferred; subject to some restrictions on Intent-to-Use applications. Assignments must be recorded with the United States Patent and Trademark office.
If a business is sold, in full, the Trademark will be transferred along with the company. If, however, the sale is an asset purchase agreement, an assignment will be necessary; this type of asset will typically be referred to as intangible property or Goodwill. A large majority of companies are being purchased by way of an Asset Purchase Sale. This type of transaction allows the buyer to acquire all of the assets without any of the liabilities. An Asset Purchase limits the risk of a lawsuit that stems from the previous entity's actions. There is an asset that some forget to add to these transactions which could be devastating to a company.
If there are employees or independent contractors of the company being purchased, it may be necessary to secure existing non-compete agreements and non-solicitation agreements as part of the transaction. Without ownership of these agreements there is a risk that the employees or contractors could quit and immediately open a competing business. See: Dexxon Digitial Storage, Inc. v. Haenszel et al. 161 Ohio App.3d 747, 832 N.E.2d 62, 2005 -Ohio- 3187 |
Elliott Stapleton Attorney with CMRS Law
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