Estate planning often focuses on tangible assets – homes, bank accounts, and personal belongings. For business owners or creative professionals, it is worth considering how intangible assets, such as intellectual property, are treated.
Trademark Basics
Trademarks are a type of intellectual property governed by the federal Trademarks Act. They may be owned, transferred, and licensed.
Failure to plan for the transfer or ongoing management of trademarks can result in loss of goodwill associated with a business, abandonment of the mark, and confusion among beneficiaries.
Estate Planning: What to Consider
An estate plan with one or more trademarks should consider the following:
- If the trademark is used in an active business, succession planning for that business is key. This may involve gifting shares, corporate structuring, shareholder agreements, or licensing strategies.
- The testator may wish to empower the executor or trustee to license or assign the trademark to maximize its value.
- Unregistered trademarks may be more difficult to administer or enforce. Trademarks are registered with the Canadian Intellectual Property Office.
Estate Administration: Managing Trademarks After Death
From an executor's perspective, dealing with intellectual property assets adds an additional layer of complexity. Executors should:
- Identify any trademarks owned by the deceased (registered or unregistered)
- Determine the current use and value of the mark
- Take steps to preserve and maintain the trademark (e.g., renew registrations)
- Seek legal advice on assignment and licensing if the estate will sell or transfer the trademark
In British Columbia, although executors derive their authority from the Will (or from a Grant of Administration if there is no Will), trademarks may not be effectively dealt with until probate is granted – underscoring the need for timely application and a knowledgeable estate advisor.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
