Licença de uso de marca e sua exploração

Abstract

The present work is an analysis of the license as a form of trademark rights transfer. It does so by means of the study of doctrines about the legal nature, definitions and functions exercised by the mark, especially, the distinctive, origin indication and advertising functions. These topics were necessary to analyze the evolution and the consequences of the concept of autonomous transfer of the mark, in the national legislation in the main foreign doctrines, namely the Italian, the German, the French and the English, and the international treaties on intellectual property that are in force in Brazil. Regarding the trademark license agreement, aspects about its nature were addressed, questioning some theories on it, such as: Lease, Leasing, Usufruct, Limited Transfer and Partnership Agreement. The definitions of license agreement were also studied, with a brief distinction from the assignment, for its adaptation to the study of their essential characteristics, such as: gratuitous or onerous, commutative, bilateral and continuous. The work also deals with the recordal of the license agreement before INPI (Brazilian Patent and Trademark Office) and the entity s understanding on this matter. Finally, the merchandise agreement is considered as a kind of trademark license that aims at the exploitation of the advertising value, in contrast to the traditional trademark license agreement, which exploits the distinctive value of the mark.

The present work is an analysis of the license as a form of trademark rights transfer. It does so by means of the study of doctrines about the legal nature, definitions and functions exercised by the mark, especially, the distinctive, origin indication and advertising functions. These topics were necessary to analyze the evolution and the consequences of the concept of autonomous transfer of the mark, in the national legislation in the main foreign doctrines, namely the Italian, the German, the French and the English, and the international treaties on intellectual property that are in force in Brazil. Regarding the trademark license agreement, aspects about its nature were addressed, questioning some theories on it, such as: Lease, Leasing, Usufruct, Limited Transfer and Partnership Agreement. The definitions of license agreement were also studied, with a brief distinction from the assignment, for its adaptation to the study of their essential characteristics, such as: gratuitous or onerous, commutative, bilateral and continuous. The work also deals with the recordal of the license agreement before INPI (Brazilian Patent and Trademark Office) and the entity s understanding on this matter. Finally, the merchandise agreement is considered as a kind of trademark license that aims at the exploitation of the advertising value, in contrast to the traditional trademark license agreement, which exploits the distinctive value of the mark.