Trade Mark Licence (intra-group)
PricewaterhouseCoopers AG
This agreement is a Swiss-law governed standard agreement for the licensing of Trade Marks between group companies.
Author's Note
The Trade Mark Licence (intra-group) is a Swiss-law governed standard agreement for the licensing of Trade Marks between group companies. Intra-group Trade Mark Licences may be required to evidence the transfer pricing of license rights between group companies. This template covers the granting of a Trade Mark Licence in relation to the licensee’s marketing, promotion and distribution of specific goods and services. It includes provisions regarding the quality control of the goods and services supplied under the Trade Mark. The license granted may be exclusive or non-exclusive in relation to a defined territory. This template includes a licence fee based on a percentage of net sales revenue. Terms which are configurable to the user’s needs include: Scope of licence; Maintenance and use of the Trade Marks; Obligations to report on use of Trade Marks; Term and termination; Fees and payment; Sub-licence and assignment rights;...
Read moreThe Trade Mark Licence (intra-group) is a Swiss-law governed standard agreement for the licensing of Trade Marks between group companies. Intra-group Trade Mark Licences may be required to evidence the transfer pricing of license rights between group companies.
This template covers the granting of a Trade Mark Licence in relation to the licensee’s marketing, promotion and distribution of specific goods and services. It includes provisions regarding the quality control of the goods and services supplied under the Trade Mark. The license granted may be exclusive or non-exclusive in relation to a defined territory.
This template includes a licence fee based on a percentage of net sales revenue.
Terms which are configurable to the user’s needs include:
- Scope of licence;
- Maintenance and use of the Trade Marks;
- Obligations to report on use of Trade Marks;
- Term and termination;
- Fees and payment;
- Sub-licence and assignment rights;
- Provisions relating to liability and indemnity;
- Provisions relating to notices;
- Dispute resolution, jurisdiction and arbitration; and
- Other boiler-plate provisions (e.g. confidentiality).
Circumstances of Use
This document is intended to be used for intra-group transfer pricing purposes to document the granting of Trade Mark licences from one group company to another.
The Trade Mark Licence may be used for cross-border transactions where the parties have agreed to use Swiss law.
Terms of Use
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You (the registered user through whose account the purchase is made) may:
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- Share and use the document copies in connection with the circumstances described in this Author’s Note and only for the ordinary business purposes of the group of companies to which you belong.
Other Comments
No warranty or representation is given or made that the allocation of functions and risk and the related transfer pricing arrangements provided for in this document are appropriate in the specific circumstances of any given group of companies. No legal or tax advice is provided and nothing in this template or the related user interview shall be deemed to constitute the provision of legal or tax advice in relation to any fact or matter. Where necessary, specialist legal and tax advice should be sought together with input from group accounting functions prior to executing this agreement.
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Frequently asked questions
(1) Licensor and (2) Licensee
(1) You need to broadly describe the type of products or services in respect of which the trade mark is used. (2) you can include a schedule when the offerings are implemented. (3) You can set the trade mark definition to narrow or broad. (4) You can include derivative trade marks, (5) You determine whether branding shall be used throughout the entire group's offering in case it is desirable to acknowledge the need for brand consistency.
The trade marks will be defined narrowly as only those marks detailed in a schedule. You may include derivative marks.
"Trade marks" will be defined broadly to include all marks owned in relation to the offerings. You may optionally include a schedule to detail specific marks for ease of identification.
If the licence has already been granted, the agreement will have retrospective effect.
The licence can be of fixed term or indefinite term. Additionally, it is possible to sign an initial term with extension. The extension can be of indefinite nature or consist of successive additional terms.
A licence can be (1) exclusive or (2) non-exclusive.
It may be appropriate to permit sub-licensing, for example to other group companies or specified third parties (e.g. sales agents). The latter must be mentioned by name
Yes, but this must be stated in the licence. The licence can be limited to a specific territory (or territories) or to a specific country (or countries). The use of the trade mark will typically be limited to those territories in which the licensee distributes and markets the offerings.
Yes. The provided support could include the provision of supporting materials (brand templates, usage guidelines, help on questions relating to permitted use, etc).
(1) The licensee can be registered as a user of the trade marks.
(2) A positive obligation can be placed to actively use trade marks.
(3) An obligation to report on use of trade marks.
The Licensor can be obliged to: (1) fund, commission and implement appropriate market surveys and research into the use of the trade marks, (2) monitor the relevant markets and the activities of competitors in order to identify any matter, activity or threat that could have an impact on the trade marks, (3) maintain an appropriate program for the protection of Intellectual Property Rights including brand maintenance and registration, market surveillance, cease-and-desist actions and related enforcement activities.
An under- or overpayment of the Licence Fee may be revealed in the course of an audit. As a result, there should be a definition if such subsequent payment or reimbursement shall be made with interest.
The licence fee is calculated as a percentage of net sales revenue. The licence fee may be payable on all revenues (including inter-company sales) or only on revenue from third party sales. The calculation approach may be (1) informal: giving maximum flexibility for calculation or (2) formal: a structured approach to calculation and payment of licence fees including an escalation process for disputes is included.
It is essential to define whether net sales revenue is equal to invoiced amounts or to revenues that were actually received. Consider that the percentage rate applied may require special tax input.
Net Sales Revenue may exclude (1) trade discounts, (2) rebates and sales or similar taxes, (3) freight and shipping costs, (4) commissions to agents or (5) other. Consider tax and transfer pricing implications of excluding certain categories of cost.
Payment frequency can be (a) annually, (b) bi-annually, (c) quarterly or (d) flexible.
Several options exist: (1) Licensor indemnifies Licensee for all loss arising out of use of the trade marks. This may be appropriate if the licensee is compensated on a limited risk basis. (2) Licensor indemnifies Licensee only for loss arising out of IP infringements. This would typically be found in an arm's length trade mark licence. (3) Licensor specifically excludes liability. You may optionally specify that the licensee will indemnify the licensor in certain circumstances.
Moreover, liability can be excluded for loss arising from Licensee's misuse or modification of the trade marks. Plus, the Licensee may have to indemnify the Licensor for loss arising out of Licensee's supply of the Offerings if stated in the contract.
You may specify whether each party should bear their own costs arising from the negotiation, preparation, amendment, preservation and enforcement of the agreement, or whether one party should bear all the costs.
Yes. You may specify a process for escalation of disputes to the parties’ senior representatives, prior to any litigation or arbitration.
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How tightened corruption laws affects compliance management systems With the revision of the Criminal Law on Corruption, the criminal responsibility of companies and their management is gaining in importance.
Switzerland introduces the clearing obligation for certain derivatives for FC+ and NFC+ The Swiss Financial Market Supervisory Authority FINMA has recently announced that it will introduce the clearing obligation, meaning to clear certain derivatives over central counterparties, under the Swiss Financial Market Infrastructure Act (FMIA) that are traded by counterparties having the status of either an FC+, meaning large Financial...
A primer on cryptocurrencies trading regulation in Switzerland This primer seeks to give an overview of the key obligations under Swiss regulatory laws related to cryptocurrencies and asset management related to cryptocurrencies.
An initial coin offering (ICO) or a token sale is when a company sells a predefined number of digital tokens to the public in a limited period of time. The ICO market has grown very rapidly in recent months and has been a new avenue for blockchain-based start-ups and projects to get the funding needed to launch their projects.
Partial entry into force of the Swiss DLT-act On 1 February 2021, the parts of the Swiss DLT-act that introduce ledger-based securities (i.e. register uncertificated securities) to Swiss law have entered into force. The remaining provisions of the DLT-act will enter into force on 1 August 2021.
The E-ID Act from a data protection perspective On 7 March, the E-ID Act will be put to the vote in Switzerland. Especially in the area of data protection, opponents and supporters disagree on the extent to which the introduction of the law would cause problems.
Platform Economy: Prepare for the future and outshine with an online matchmaker Platform business models has changed how businesses are conceptualised and conducted. Interested to know more about the value of a platform business model?
A unique opportunity to become a responsible business role model With the narrow rejection of the Swiss Responsible Business Initiative (RBI), Swiss companies will have the challenge of aligning with stricter, EU-inspired standards in terms of corporate disclosure and sectoral human rights due diligence. In this blog post we explain how you can take the reins and become best in class – and why the current...