Exploring Use of the Same Mark by Multiple Undertakings
Edited by IIanah Simon Fhima
Chapter 12: Aspects of Sublicensing
Neil Wilkof The prevalence of sublicensing as a means for exploiting intellectual property rights cannot be gainsaid. Whether by way of patent, trade mark or copyright, the simple two-tier licensing arrangement between licensor and licensee often gives way to multi-tier arrangements by which the sublicensee plays a central role in the commercialization of the licensed intellectual property rights. However, the treatment of sublicensing in the professional literature has not proved commensurate with the commercial importance that sublicensing arrangements command in the commercial world. The starting point for this chapter is that the sublicensing of intellectual property rights cannot be understood as a simple extension of the two-tier licensing arrangement between the licensor and licensee. That does not mean that no connection exists between licensing and sublicensing. The very fact that the sublicence can be said to derive from the main licence ensures that there is a nexus between the two. What it does mean, however, is that the principles that drive the licensor–licensee relationship do not necessarily apply to the sublicensee as well. Against this backdrop of intellectual property sublicensing, the focus of this chapter will be on the sublicensing of trade mark rights. The sharing of trade mark rights with respect to the use of the mark under a sublicensing relationship gives rise to a series of unique problems. In order to understand them, it will be necessary to consider both the principles of sublicensing generally as well as the particular issues that are found when use of...
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