agreement of assignment in india

• Intellectual Property

Assignment Agreements and Indian IP laws

Assignment can be defined as transferring the title and rights associated with a particular property from one person to another. The individual who transfers the title is called the transferor/assignor, and the person who receives the title is called the transferee/assignee. The result of an assignment is the transfer of all interest present in a particular property to the transferee.

Assignment in the context of intellectual property is the transfer of all the intellectual property rights held by a registered user (or creator, only in cases of copyrightable works) to another party. Assignment agreements are usually in writing and are duly signed by the assignee and the assignor.

The Indian Contracts Act of 1872 provides the general essentials that make a contract valid. These apply to assignment agreements as well. These essentials include the competency of parties to enter into a contract, legal consideration, promise and acceptance, and a lawful object. In addition to those mandates, assignment agreements about Intellectual Property have several other requirements to be fulfilled. Those requirements vary according to the type of intellectual property , i.e., artistic work, trademark, invention, design, etc.

Assignment of Copyrights

The bundle of economic and moral rights is called copyright . Economic rights consist of the right to distribute, reproduce, transform, translate, perform, private copying, etc. These rights can either be wholly or partially assigned according to the parties will. Section 18 and 19 of the Copyrights Act, 1957 refers to the assignment. The work that is to be assigned has to be in existence. The authors of musical/literary work cannot assign their right to receive a royalty to any other party except their legal heirs. The Copyrights Act 1957 mandates the assignment to be made through a written and signed document.

These agreements should consist of the work and the rights assigned, the duration and territorial extent of assignment, the amount of royalty payable to the party or their legal heir, and revision/extension/termination on mutually agreed upon terms. In the absence of details present in the agreement, the default term of the contract will be five years, and the default territorial extent will be limited to India.

The assignment must be recorded in the register in case of registered work.

Assignment of Trademark

Assignment of the trademark could concern certain goods/services or fully, with/without goodwill or any combination thereof. Assignment of trademarks is specified in Section 37-43 of the Trademarks Act, 1999. The agreement has to be in written form and duly signed by the parties involved, and the agreement should specify whether the goodwill is to be transferred along with the trademark.

An application to register the change in ownership of the title of trademark has to be made through From TM-P along with a duly certified copy of the original document and the instrument or deed used for the transfer of rights.

Assignment of Geographical Indications

Geographical indications (GI) are different from trademarks; they belong to a particular association or group of people who produce certain goods in a specific geographical area with special characteristics or quality. The usage of such a mark indicates the presence of such quality or characteristic that is a specialty to that territory. As GIs are public property, they cannot be subject to assignment, transmission, licensing, pledging, mortgaging, or any such types of agreements as mentioned in Section 24 of the Geographical Indications of Goods Act, 1999. The GI could be subject to succession, but it is possible only when the production of such a product remains within the territory mentioned.

Assignment of Patent rights

Assignment of patents has to be done through a written instrument. Section 68-70 of the Patents Act 1970 covers the assignment of patents. This instrument should specify all the terms and conditions governing the rights transferred and obligations imposed. Assignment of patents can be informed of legal assignment, equitable assignment, or mortgages. This ownership transfer must be registered in the register through a Form 16 application made to the Controller, along with two copies of the deed agreement document duly certified.

Assignment of Designs

The assignment of designs is regulated by the Manual of Designs Practice and Procedure. Sec 30 of the Designs Act, 2000 provides the information related to the assignment of Designs and the procedure of doing the same. This agreement must be in writing and contain all details regarding the transferred rights and the obligation imposed. This assignment has to be duly signed by both parties involved. It has to be registered on the application filing through Form 10 within six months from the date of execution of the assignment/instrument. Further extension of 6 months is also available. It has to accompany copies of the original transfer deed/instrument or copies duly certified.

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How To Draft Intellectual Property Assignment Agreement

The IP assignment agreement, also known as an IP transfer agreement, ensures that when an employee works on behalf of a company to generate an intangible property, the corporation retains the rights to the creation.

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Types of IP Assignment Agreements

• Copyright Assignment: In India, copyright assignments are governed under the Copyright Act of 1957. According to Section 19 of the Copyright Act of 1957, the deed of assignment must indicate the ‘rights assigned’, the length and territorial scope of the assignment, and any royalty payable. If the duration of the assignment is not specified, it will be deemed to be five years, and if the territorial extent is not specified, it will be deemed to extend throughout India, as confirmed in the Delhi High Court’s decision in Pine Labs Pvt. Ltd. vs Gemalto Terminals India Pvt. Ltd & Ors. FAO (OS) 635 & 636 of 2009. Section 19A describes the provisions for resolving disputes in copyright assignment. According to the section, the assignor has the right to apply for revocation of the assignment with the Copyright Board if an assignee fails to adequately exercise the rights assigned to them and the board determines that the failure was not caused by the assignor’s act or omission.
• Patent assignments: The Patents Act of 1970 is the statute that governs patent assignment. This statute allows patents to be assigned in either a partial or whole manner, both exclusive and non-exclusive. Section 68 of the Patents Act, 1970 says that a patent assignment must be made in writing and then registered with the Controller to function as a legally enforceable contract.
• Design assignment: An Assignment of Design can be obtained under the provisions of Section 15 of the Copyright Act of 1957 or through the instrument of design described in Rule 37 of the Designs Act of 2000. An application to register the title must be filed within six months following the assignment instrument’s execution.
• Assignment of the trademark: A registered trademark can be assigned by Rule 68 of the Trademark Rules, 2003, by submitting a request on Form TM-23 or 24, depending on whether the assignment is made to the assignee exclusively or to the assignee and the proprietor. This application should include complete information about the applicant’s trademark claim, as well as a fully certified copy that must be presented to the Registry for inspection at the time of application.

How to Draft Intellectual Property Assignment Agreement

• The first objective is to assess the scope of the assignment, identify the rights assigned, and determine the extent of the assignment. When establishing the scope of an IP assignment, it is also crucial to specify the status of the associated IP.
• An explicit clause detailing the transfer of ownership of the IP must be included in the agreement. This clause defines the assignment’s scope. When IP is assigned perpetually, the right to sue for infringement of IP before the assignment is likewise transferred. If the assignor is to seek any permissions, the agreement must specify the consequences of failing to secure such consent.
• An assignment might be either perpetual or for a specific amount of time. The same must be included in the agreement transferring IP to the assignee. If the parties have agreed on a procedure for renewing the period of the agreement, this should be indicated in the agreement. If the assignment is for a specified period, the agreement must also explain the consequences of its expiration.
• To minimize confusion, the territory for which the assignee has obtained ownership rights to intellectual property must be clearly defined. Because assignment is a transfer of ownership, the assignor will not be the owner of the intellectual property in the specific territory until the agreement’s term ends.
• Generally, when IP ownership is transferred, the right to make future transfers is included. However, in the instance of a fixed-period assignment, the agreement may include a restriction on the assignee’s authority to make subsequent transfers within the term.
• An assignment agreement must include warranties from the IP owner which state the following:
• The assignor is the exclusive owner of the IP assigned, and he possesses the power and capacity to assign it.
• The intellectual property has not been licensed; or no right, title, or interest in the property has been created for any third party.
• IP is free of any obligations, such as infringement of third-party rights.
• There are no further responsibilities to any third party that are inconsistent with the rights and obligations specified in the agreement.

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Importance of Assignment Agreements under Intellectual Property Laws in India

This article was published in Journal of Intellectual Property Rights on November 2009

Sindhura Chakravarty [**] Hidayatullah National Law University, HNLU Bhawan, Civil Lines, Raipur, Chhattisgarh 492 001

Received 20 August 2009, revised 29 October 2009

A well-established statutory, administrative and judicial framework exists in India to safeguard intellectual property, relating to patents, trademarks, copyright or industrial designs. [1]  An important aspect of these laws deals with assignment agreements. An assignment agreement is an intellectual property (IP) transaction that deals with the ownership and disposition of intellectual property rights as well as with the control over the use of or access to intellectual property. This paper attempts to briefly explain assignment agreements in general terms as well as the essential requirements for assignment agreements under the Indian Contract Act, 1872, and the Indian Stamp Act, 1899. It discusses in detail the sections pertaining to assignment agreements in the legislations on Intellectual Property Law in India. It also provides information regarding the forms through which assignment of the intellectual property can be registered. The Madrid protocol and the rules regarding assignment of trademarks in the international forum have also been discussed.

Assignment Agreement, Contract Act, copyrights, patents, trademark, geographical indications, designs, semiconductor integrated circuit layout design, plant varieties, biological resources, Stamp Act, recordal procedure.

Assignment Agreements

Assignment agreements pertain to the transfer of intellectual property rights from the owner of the rights to another person or organization. An Intellectual Property Agreement (IP Agreement) or an Intellectual Property Assignment Agreement is a written and enforceable contract that consummates and formalizes an agreement between two companies for the purchase and sale of intellectual property rights. The intellectual property being purchased can consist of copyrights, trademarks and/or patents. [2]  Assignment agreements differ from license agreements on the grounds that an assignment agreement actually transfers the ownership of that intellectual property from the assignor to the assignee whereas a license agreement only permits the licensee to use the intellectual property for a given period of time.

An assignment agreement cannot be compared to a negotiable instrument because in case of negotiation, the transferee can get better title than transferor, which can never happen in assignment/transfer.

For example, if A assigns to B, the assignment is stolen by C and assigned to D who takes it in good faith and for value without any notice of the defect in C’s title, D will have no rights against A. However if A draws a cheque (negotiable instrument) in favour of B, the cheque is stolen by C and negotiated to D, who takes it in good faith and for value without any notice of the defect in C’s title then D will be entitled to value of cheque. [3]

Intellectual property created by students in a University Research and Development (R&D) programme can be assigned by the student in the absence of an agreement as the student is the owner of the intellectual property created. Most universities, however, have policies requiring students to sign pre-invention agreements regarding the same.

An assignment agreement may involve a complete and exclusive sale of the rights, thus giving the assignee complete ownership to exploit the intellectual property rights in whatever way, shape, or form it likes, and this is, however, subject to any limitations listed in the agreement. Partial assignments are also possible as specified in Section 18 of the Indian Copyright Act. Usually the assignee will pay the assignor cash or stock consideration in exchange for these rights. [4]

Essential Requirements of an Assignment Agreement

Requirements under the indian contract act, 1872.

As per Section 2(h) of the Indian Contract Act, 1872, any agreement that is legally enforceable by law can be called a contract. An assignment agreement to be valid must satisfy the requirements of the Indian Contract Act, 1872. Therefore, it has to be made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object and also has to be made in such a manner that it is not declared void under Section 10 of the Indian Contract Act, 1872. For instance in the case of Alexander v Rayson, [5]  P let a flat to R of $1200 a year. To reduce the municipal tax he entered into two agreements with R. One, by which the rent was stated to be $450 only and the other by which R agreed to pay $750 for services in connection with the flat. In a suit filed against R to recover $750, it was held that the agreement was made to defraud the municipal authority and was void and A cannot recover the money.

In contract law, the term ‘assignment’ means a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or if in estate or in right therein. [6]  To simplify, it refers to an agreement by means of which the rights or obligations of one party can be transferred to another party. Though not specifically mentioned in the Indian Contract Act, 1872, assignments have been inherited from English Contract Law. [7]  Assignment agreements in the context of intellectual property law refers to the transfer of a specific kind of rightsintellectual property rights, which are personal, movable property. This is considered a lawful object.

To be a valid and legally enforceable contract it must be ensured that the consideration provided is also lawful and the contract itself is lawful. An agreement stating that a person would work for another person for two years in return for Rs 100 and in case of default would have to pay an exorbitant interest and principal at once was held to be indistinguishable from bonded labour and was thus held void. [8]  Assignment can only be made from free consent of both parties. The parties to the agreement must also be competent to contract- thus neither can be a minor or of unsound mind according to Section 11 and 12 of the Indian Contract Act, respectively. It is interesting to note at this point that as per English law, a minor can dispose of a copyright in the same way as an adult subject to the rules of infant contracts. [9]

The Indian Contract Act, 1872 does contain certain provisions which indirectly refer to assignment yet it does not specify what assignments are or are not good in law. [10]  The courts have however made certain guidelines regarding the same. For instance, it has been determined by the Madras High Court that an agreement regarding the publishing of a book between an author and a publisher is personal to the individuals entering it and the benefit received from this cannot be assigned. [11]  It has also been determined by the High Court of Lahore that a copyright cannot be assigned for a non-existing work. [12]

Both Section 37 and Section 40 of the Indian Contract Act, 1872 allude to the enforceability of assignments by laying down that subject to certain exceptions, a contract in the absence of a contrary intention, express or implied, will be enforceable by and against the parties and their legal heirs and legal representatives including assignees and transferees. [13]  Section 40 of the Indian Contract Act, 1872 specifies that a contract which the promisor is required to perform personally is not capable of assignment. [14]

Assignment agreements are thus a form of contract and must therefore satisfy the requirements that are mentioned under the Contract Act. It is only then that the assignment agreement can be enforced by filing a suit for damages under Section 73 of the Indian Contract Act, 1872.

Requirements under the Indian Stamp Act, 1899

The Stamp Act is a fiscal measure enacted to secure revenue for the state on certain classes of instruments. [15]  As per Section 2(14) of the Indian Stamp Act, 1899, an instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended extinguished or recorded. An assignment agreement involves the transfer of intellectual property rights and hence it would fall under the purview of the definition of the term ‘instrument’ as per the Act. As per the schedule, depending on whether the assignment pertains to ‘conveyance’, ‘transfer’ or ‘transfer of lease’ different stamp duty is to be charged. As per Section 23 on ‘conveyance’ in the Indian Stamp Act, 1899, an assignment of a Copyright is exempted from Stamp Duty. Therefore, in a Deed of Assignment, assigning copyright along with some other property, say trademarks, it is advisable to state as to what part of consideration is towards the assignment of copyright, thereby exemption from stamp duty can be sought on that portion of the assignment. In Bihar, however, the above-mentioned exemption of copyright assignments has been deleted by the Amendment made by the State Act with effect from 31st March 1958 as a result of the examination of exemptions suggested by the Taxation Enquiry Committee. [16]  In Uttar Pradesh, the exemption is restricted to assignment of copyright in musical works. [17]

In a recent case regarding trademarks, [18]  it was determined that Section 35 of the Indian Stamp Act, 1899 prohibited the courts from admitting into evidence documents not duly stamped merely to ensure Stamp duty collection and could not be used as a means of denying a person rightful ownership. Thus, it can be seen that though Stamp duty is applicable on assignment of intellectual property (except Copyright) in most States of India, the non-payment of this cannot invalidate the assignment.

Assignment of Intellectual Property

Assignment of copyrights.

Copyright is often referred to as the ‘Cinderella of Intellectual Property Law’. [19]  This is because it was once over-shadowed by the twin sisters- Franchise Law and Patent Law but it now plays a very important role in the IP regime. It provides protection to authors, composers and other artists against unauthorized reproduction of their work. [20]  The exact meaning of the term with respect to India is given in detail in Section 14 of the Copyright Act, 1957.

Copyrights are personal, moveable property and can be transferred though assignment agreements from one person to the other. In India, Sections 18, 19 and 19A of the Copyright Act, 1957 govern the assignment of copyrights. Section 18 of this Act gives every copyright holder the right to transfer his copyright to an assignee by means of an assignment agreement.

Section 19(1) of the Copyright Act, 1957 clearly states that no assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorized agent. Thus, no particular form of assignment is required under Section 19 of the Copyright Act, 1957 and it will suffice if the assignment can be culled out in writing from some document. [21]  Oral assignment of copyright is neither permissible nor valid. [22]  In a case, [23]  the Supreme Court held that an existing and future right of a music composer and lyricist is capable of assignment, subject to the conditions that the assignment shall take effect only when the work comes into existence and the assignment is required to be in writing, signed by the assignor or his duly authorized agent. A deed of assignment of copyright is not compulsorily registrable. [24]

Section 19A of the Copyright Act, 1957 makes provisions in the case of disputes arising with respect to a transaction. It states that any such complaint will be dealt with by the Copyright Board. The Board cannot pass any order to revoke the assignment unless it is satisfied that the author is the assignor and that the terms of assignment are harsh to the assignor. In any event, no order of revocation of assignment can be made within a period of five years from the date of assignment. [25]

The term copyright encompasses a bundle of rights, one of which is a ‘moral right’. This constitutes certain specific rights that the author of an original literary, dramatic, musical or artistic work and the director of a film enjoy in their creation. It can only be exercised by the creator himself and these rights are not assignable as per English law. [20]  The Law of the United States of America does not protect these rights conclusively. [26]  Moral Rights of an author has been acknowledged under Section 57 of the Copyright Act, 1957. This states that even after the assignment of the copyright, the author of a work shall have the right to claim authorship of the work; and to restrain or claim damages in respect of any distortion or other act in relation to the said work which is done before the expiration of the term of copyright which brings the author into disrepute. [27]

The primary function of copyright law is to protect the fruits of a man’s work, labour, skill or test from annexation by other people. [28]  This requires for the copyright owner to possess several rights including the right to transfer the intellectual property, if he chooses to do the same. Assignment agreements are integral to copyright law as it helps the copyright owner to implement this right. [29]

Assignment of Patents

A patent is a monopoly right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. During the term of the patent, the patentee can prevent any other person from using the patented invention. [30]  Patent law recognises the exclusive rights of the patentee to gain commercial advantage out of his invention. [31]  In India, patent law is covered by the Patents Act, 1970 which has been extensively amended vide the Patents (Amendment) Act, 1999, Patents (Amendment) Act, 2002 and Patents (Amendment) Act, 2005.

Patent law gives every inventor a reason to exercise his creative faculties by protecting his efforts and ingenuity from imitation. It has been held by the Supreme Court of India that the object of patent law is to encourage scientific research, new technology and industrial progress. Grant of exclusive privilege to own, use or sell the method or the product patented for a limited period, stimulates new inventions of commercial utility. [32]

In patent law, assignment refers to the act of the patentee by which the patent rights are wholly or partially transferred to the assignee who acquires the right to prevent others from making, using or exercising or vending the invention. The assignment can either be exclusive or non exclusive. The exclusivity can be further limited, for example exclusivity to a territory or market or line of products. There are three main types of assignments in patents, each of which have been discussed briefly as follows:

Legal Assignments

An assignment of an existing deed is a legal assignment. A patent which is created by deed can only be assigned by a deed. [33]  A legal assignee entitled to be registered as the proprietor of the patent and acquires all the rights thereof.

Equitable Assignments

A document agreeing to transfer a patent or a share of a patent with immediate effect is an equitable assignment. This affects proprietorship, but does not directly change it. The man to whom it is equitably assigned gets the right in equity to have the ownership of the patent altered in law.

A mortgage is a document through which patent rights are transferred to the assignee in return for a sum of money. Once the assignor repays the sum, the patent rights are restored to him. [30]  The term assignee as per Section 2(1) of the Patents Act, 1970 includes in its meaning the legal representative of a deceased assignee. Section 70 of the Patents Act, 1970 confers inter alia the right on a grantee to or proprietor of the patent to fully or partially assign his patent to another or others. As per the Patents (Amendment) Act, 2005 which replaces Section 68 of the Patents Act, 1970 an assignment of a patent shall not be valid unless the same were in writing and the agreement between the parties concerned is reduced to the form of a document embodying all the terms and conditions governing their rights and obligations and duly executed.

Section 69 of the Patents Act, 1970 describes the registration of those assignments. It is necessary for the agreement between the parties concerned to be reduced to the form of a document embodying all the terms and conditions governing their rights and obligations and the application for registration of such document ought to be filed in the prescribed manner with the Controller. The time-limit under the earlier law requiring ‘the application for registration of such document filed in the prescribed manner with the Controller within six months from the date of execution of the document’ has been omitted by the Patents (Amendment) Act 2005. Section 68 does not stipulate any time-limit for registration. [34]

As per the Law of the United States, the applicant for a patent must always be an individual. A corporation or a partnership, or other legal entity cannot properly be an inventor in an American Patent. [35]  The government can own an invention, however. [36]  This was reiterated in the case of Wright v US. [37]  A corporation may be made an assignee to a patent through an assignment agreement.

Patents are a very important branch of intellectual property, as life saving drugs and other essentials come within its sphere. Thus assignment agreements of such rights must be couched in clear and concise terms to ensure that no controversy arises as to its interpretation.

Assignment of Trademark

Consumers all over the world seek quality. Brand consciousness is a very common method of achieving this end. Trademarks are the means by which consumers distinguish between brands. A trademark is any word, name, symbol, device or any combination thereof used by a manufacturer or retailer of a product, in connection with that product, to help consumers identify that product and to distinguish it from the products of competitors. [38]  For example, the LEVI v-shaped stitching on the back pocket Levi’s blue jeans can be called a trademark. [39]  The main purpose behind protecting trademarks is because it is of use both to the manufacturer and the consumer. For the merchant, the trademark serves as an advertising tool, facilitating repeated sales and successful marketing of new products. [40]  Trademarks foster competition and the maintenance of quality by securing to the producer the benefits of a good reputation. [41]

In India, trademarks are protected by the Trademarks Act, 1999. Assignment is an important aspect of the Act. As per the Section 2(1)(b) of the Trademarks Act, 1999, assignment has been described as an assignment in writing by act of the parties concerned. Thus, this clarifies that for the assignment of trademarks it is necessary for the agreement to be in writing and to be an act of the assignor and the assignee of their own volition and not a third party. In Section 2(1)(zc) of the above-mentioned Act, assignment has been differentiated from other forms of transmission. Section 6 of the Trademarks Act, 1999 allows for the notification of assignment of trademarks which have been registered. Section 31 of the same Act states that registration of trademark and notification of assignments will act as prima facie evidence of the existence of a trademark.

Chapter V of the Trademarks Act, 1999 deals in depth with the transfer of trademark by means of assignment and transmission. Section 37 of the Act clearly states that only the registered proprietor has the right to assign a trademark. He is also subject to the rights conferred to him by registration. Section 38 of the Trademarks Act, 1999 provides the assignment of a registered trademark. Trademarks in India can be assigned with or without goodwill. In a marked change from the previously valid Trade and Merchandise Mark Act, 1958, Section 39 of the Trademarks Act, 1999 provides the assignment of an unregistered trademark. These Sections are subject to Section 40 and Section 41 of the Trademarks Act, 1999.

Section 40 of the Trademarks Act, 1999, prevents the occurrence of a situation wherein exclusive right of a trademark resides in more than one person. This is because if assignments and transmission lead to the creation of multiple exclusive rights in more than one person this may lead to deception and confusion. [42]  The proprietor of a registered trademark who proposes to assign it may submit to the Registrar in the prescribed manner a statement of case setting out the circumstances and the Registrar may issue to him a certificate stating whether, having regard to the similarity of the goods or services and of the trademarks referred to in the case, the proposed assignment would or would not be invalid under Section 40(1). The certificate is subject to appeal. It will also be conclusive as to the validity or invalidity under Section 40(1), of the assignment in so far as such validity or invalidity depends upon the facts set out in the case. A certificate in favour of complete validity of assignment/transmission can be given only if application for the registration is made under Section 45 of the Trademarks Act, 1999 of the title of the person becoming entitled is made within six months from the date on which the certificate is issued as per Section 40(1).

Section 41 of the Trademarks Act, 1999 prohibits the assignment of a trademark whether it be registered or unregistered which may result in different people using trademark in different parts of the country. If an assignor retains exclusive right over trademark even after the assignment agreement, then the assignment will be void as per Common Law. [43]

Chapter V of the Trademarks Act, 1999 refers to the concept of ‘goodwill’ as previously mentioned, in Section 38, however the Act does not define the term. In Churton v Dogules, [44]  it was determined that goodwill must mean every advantage that has been acquired by an old firm by carrying on its business, everything connected to the premises and the name of the firm, and everything connected or carrying with it the benefit of the business. There was a time when the law in UK considered goodwill to be inseparable from trademark. [45]  This was subsequently changed. [46]

Section 42 of the Indian Trademarks Act, 1999 further provides for means by which a sale of trademark not in connection with goodwill must occur. It has to be registered before the expiration of six months from the date on which the assignment is made or within such extended period, if any, not exceeding three months in the aggregate, as the Registrar may allow. Thus the assignee applies to the Registrar for directions with respect to the advertisement of the assignment, and advertises it in such form and manner and within such period as the Registrar may direct.

Section 43 of the Trademarks Act, 1999 deals with certification trademarks, it states that the assignment of certified trademarks would not be possible without the consent of the registrar which was to be applied for in writing. Section 44 of the Trademarks Act, 1999 states that associated trademarks must be assigned or transmitted together and not separately. This provision is intended to ensure that the marks associated under Section 16 of the Trademarks Act, 1999 are not assigned separately to different persons entailing confusion and deception as a result of simultaneous use of same or similar mark by a different person in respect of the same goods or description of goods or same services or description of services. [47]  Section 45 of the Trademarks Act, 1999 discusses the registration of assignments or transmissions in detail. Thus the significance of assignment agreements in Trademark law is amply clear from its exhaustive treatment in the Trademarks Act, 1999.

Assignment of Geographical Indications

Geographical indications have been defined under Section 2(e) of the Geographical Indications of Goods (Registration and Protection) Act, 1999. It basically pertains to an indication that is used to identify agricultural, natural or manufactured goods originating from a specific geographical territory having a special quality or reputation.

Section 24 of the Geographical Indication of Goods Act, 1999 clearly indicates that assignment, transmission, licensing, pledge, mortgage or any such agreement is prohibited by law. Hence there is no way in which the right over a geographical indication can be passed to another person except on the death of the authorized user. In case of which the geographical indication shall devolve to his successor. This is mainly because a geographical indication is a public property belonging to the producers of the concerned goods which cannot be used to describe another good as it is indicative of the reputation and quality of another product. [48]

Assignment of Designs

When we admire the sleekness of the cellular phone model or the cut of a formal shirt or even the shape of a new car, we are actually referring to its aesthetics or design. The object of the Designs Act, 2000 is to protect new or original designs so created to be applied or applicable to particular article to be manufactured by industrial process or means. It provides the creator of a design with the security that his aesthetic look will not be applied by others to their goods. [49]

This effort can be protected from imitation by seeking protection under the Design Act, 2000. As per Section 2(d) of the Designs Act, 2000 ‘design’ means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device. Section 11 of the of the Designs Act, 2000 clearly states that a copyright upon design can last for 10 years from date of registration and can be extended to a maximum of 15 years.

Section 30 of the Design Act, 2000 read with Rules 32, 33, 34 and 35 of the Design Rules, 2001, recognizes the contracts relating to assignment of designs and provides procedure for the recordal thereof. Section 30(1) of the Design Act, 2000 states that where a person becomes entitled by assignments, transmission or other operation of law to the copyright in a registered design he may make application in the prescribed form to the Controller  [50]  to register his title. Section 30(3) of the Design Act, 2000 makes it clear that for an assignment to be valid it must be in writing and the agreement between the parties concerned has to be reduced to the form of an instrument embodying all the terms and conditions governing their rights and obligation and the application for registration of title under such instrument is filed in the prescribed manner with the Controller within the stipulated time- that being within six months from the execution of the instrument. Section 30(4) of the Design Act, 2000 states that the absolute right to assign the design rights lie with the person registered as proprietor of the design.

The Copyright in the design is only protected if the same is statutorily recognized under the provisions of the Designs Act, 2000. Similarly, the rights acquired by third parties by way of assignments or licenses are only made effective if the same is duly registered in accordance with the provisions of the Act and the Rules framed there-under. There is no concept of common law license under design law. [51]

Assignment of the Semiconductor Integrated Circuits Layout Design

Semiconductor integrated circuit is an electronic circuit manufactured on the surface of semiconductor material. [52]  Integrated circuits are used in almost all electronic equipment in use today and have revolutionized the world of electronics. The sheer number of electronic appliances we use on an everyday basis is a clear indication of how important semiconductor integrated circuits or chips are in the modern world.

The manner of arrangement or the lay-out of the chip is what enables it to perform a particular function. Thus there was a need to protect the investment of the chip-designer by way of a separate enactment. [53]  This protection is to be provided by the means of the Semiconductor Integrated Circuits Layouts Design Act, 2000 in India. This was enacted in keeping with India’s obligation under the TRIPS Agreement. [54]

Assignment as per Section 2(b) of the Semiconductor Integrated Circuits Layout-Design Act, 2000 has been defined as ‘an assignment in writing by act of the parties concerned’. Registration of the design as well as all subsequent assignments will act as prima facie evidence of the validity thereof as per Section 19 of the Act.

Chapter V of the Semiconductor Integrated Circuits Layouts Design Act, 2000 deals with Assignments and Transmissions. Section 20 of the Semiconductor Integrated Circuits Layouts Design Act, 2000 allows the proprietor of a layout-design the power to assign the layout-design, and to give effectual receipts for any consideration received for such assignment. This is subject to the provisions of the abovementioned Act and to any right appearing from the register to be vested in any other person. Section 21 of the Semiconductor Integrated Circuits Layouts Design Act, 2000 makes a registered layout-design assignable and transmissible with or without the goodwill of the business concerned. As per Section 22 of the Semiconductor Integrated Circuits Layouts Design Act, 2000, when an integrated circuit layout is assigned without goodwill then the assignment shall not take effect unless the assignee, not later than the expiration of six months from the date on which the assignment is made or within such extended period, if any, not exceeding three months in the aggregate, as the Registrar may allow, apply to the Registrar for directions with respect to the advertisement of the assignment, and advertises it in such form and manner and within such period as the Registrar may direct. Section 23 of the Semiconductor Integrated Circuits Layouts Design Act, 2000, states that the assignee must register the title with the registrar. Section 24 of the Semiconductor Integrated Circuits Layouts Design Act, 2000 prevents the assignee from using the registration as proof of title if the matter is still before the registrar or an appeal from an order there-from is pending.

Assignment of Plant Varieties

A need was felt in the latter half of the 20th century to provide for the establishment of an effective system for the protection of plant varieties, farmer’s rights and plant breeders, in order to encourage the development of new varieties of plants. [53]  The Protection of Plant Varieties and Farmer’s Rights Act, 2001 was enacted by India under the obligation created by the TRIPS Agreement it had ratified in 1994. [55]  India through the Protection of Plant Varieties and Farmer’s Rights Act, 2001 implemented a sui generic [56]  system of protection. [57]  It is essentially [but loosely] modelled on the Union for the Protection of new Varieties of Plants, 1978. [53]

Assignment agreements are permissible under the Plant Varieties and Farmers Rights Act, 2001. A plant breeder may through an assignment agreement transfer his right of ownership upon the plant strain he created to another person in return for pecuniary gain. Section 16(1)(c) of the Plant Varieties and Farmers Rights Act, 2001 acknowledges the legal validity of assignment agreements by stating that any person being the assignee of the breeder of the variety in respect of the rights to make such application, can apply for registration under Section 14(a) of such genera and species as specified under Section 29(2) or an extant variety or a farmers’ variety.

The Plant Varieties and Farmers Rights Act, 2001 provides some safeguards to ascertain the legitimacy of the assignment in the form of Section 18(3). The Section states that in case an application for registration is made by virtue of an assignment of the right to apply for registration, there shall be furnished at the time of making application, or within such period after making the application as may be prescribed, a proof of the rights to make the application. Thus the validity of the transfer of the intellectual property is gauged at the time of registration itself.

Assignment of Biological Resources

The Biological Diversity Act, 2002 was created in a bid to conserve, use sustainably and equitably distribute benefits accruing from use of biological resources and the traditional and contemporary knowledge associated therewith. [58]  It prevents anyone claiming an intellectual property right (IPR), such as a patent, over biodiversity or related knowledge, without permission of the Indian Government. It contains measures for sharing of benefits from the use of biodiversity, including transfer of technology, monetary returns; joint R&D and joint IPR ownership. [59]

Section 4 of the Biological Diversity Act, 2002 states that the previous approval of the National Biodiversity Authority is necessary to transfer the results of any research relating to any biological resources occurring in, or obtained from, India for monetary consideration or otherwise to any person who is not a citizen of India, or is a non-resident [60]  or a body corporate or organization which is not registered or incorporated in India or which has any non-Indian participation in its share capital or management. Collaborative research efforts and papers for the dissemination of knowledge are made exceptions to this definition of transfer. [61]

There is no specific provision in the Biological Diversity Act, 2002, dealing with Assignment Agreement. Assignment is also a form of transfer which under specific circumstances is permitted. It can be inferred that assignment agreements are not per se prohibited by the Biological Diversity Act, 2002 provided the assignment does not contravene any other rules of the Act.

Recordal Procedure with respect to Transfer of Trademark under Madrid System

Recordal or recordation [62]  refers to the process or action of recording of any transfer. [63]  The term came to the fore in the international forum with respect to trademarks after the advent of the Madrid Agreement. The Madrid Agreement was signed in 1891, yet it was only after the creation of the Madrid Protocol in 2004 that the concept of international registration became plausible. The Madrid Agreement and the Madrid Protocol jointly form the Madrid System that provides a centrally administered system of obtaining a bundle of single jurisdiction trademark registrations based on an ‘international registration’, and therefore provides a mechanism for obtaining trademark protection in many countries around the world. [64]

The Madrid System amongst other innovations suggested that the recordal of assignment agreements in an international register. India is in process of making amendments to its trademark law regime to streamline its trademark law and to make it consistent with evolving international trademark law regime and is also contemplating accession to the Madrid System.

The applicant for an international registration is required to file only one application, pay one fee in local currency, and is not required at least initially, to submit foreign powers of attorney. Renewals, assignment recordals, changes of name and/or address of an international registration may be effected by filing one document with the International Bureau. [65]

The Trademarks (Amendment) Bill, 2007 incorporates the changes necessitated by the Madrid Protocol. [66]  Section 36F of this Bill states that from the date of the international registration of a trademark where India has been designated or the date of the recordal in the register of the International Bureau about the extension of the protection resulting from an international registration of a trademark to India, the protection of the trademark in India shall be the same as if the trademark had been registered in India. The bill is yet to be presented before the Lok Sabha and has no legal binding-ness as of now. However, there is a lot to suggest that the recordal system put forth by the Madrid Protocol will be implemented in India in the near future, thus the process for recordal of change of ownership [including assignment] has been analysed as follows:

Rule 25 of the Common regulations of the Madrid Agreement and Protocol explains the means by which transfer of ownership can take place. [67]  First of all, a request for change in ownership through request for recording shall be presented to the International Bureau on the relevant official form, in one copy, where the request relates to a change in the ownership of the international registration [including assignment] in respect of all or some of the goods and services and all or some of the designated Contracting Parties. The request for the recording of a change in ownership may be presented through the Office of the Contracting Party, or of one of the Contracting Parties, this must comply with conditions of Article 2 of the Madrid Protocol [68]  as Section 2(a)(iv) of rule 25 reiterates. The contents of the request must include the number of registration, the name of the holder, the name of the new holder their addresses and other specifications given in Rule 25 Section 2 of the Common Regulations of Madrid Protocol. [67]

As per Article 9 of the Madrid Protocol, the International Bureau shall record in the International Register any change in the ownership of that registration, in respect of all or some of the contracting parties in whose territories the said registration has effect and in respect of all or some of the goods and services listed in the registration, provided that the new holder is a person who, under Article 2(1), is entitled to file international applications.

Article 9sexies (1) also states that where, with regard to a given international application or a given international registration, the Office of origin is the Office of a State that is party to both this Protocol and the Madrid (Stockholm) Agreement, the provisions of this Protocol shall have no effect in the territory of any other State that is also party to both this Protocol and the Madrid (Stockholm) Agreement.

Assignment agreements are of considerable importance in IPR since they allow the intellectual property owners to transfer their intellectual property for commercial returns, ensuring that the intellectual property can be used for monetary gain. Intellectual property that is created is utilized and exploited by the Assignment Agreement, where the purchaser or assignee takes benefit of the assignment rights that are created. These assignment agreements give rise to legal and equitable rights in law and purport many issues if they are not carefully constructed as required by law.

Issues relating to ownership of IPR must be carefully considered where employees may be creating IPR outside the scope, time and available resources of the company that they work for. Companies who own valuable IP rights should execute non-disclosure agreements with their employees, agents, or other third parties and make sure to define the term ‘confidentiality’ and the obligations of the parties not to disclose it. It is prudent to include Assignment Agreement clauses which address issues relating to governing law, jurisdiction, Alternative Dispute Resolution [ADR] to seek speedy resolution of disputes. Intellectual Property Assignment Agreement is a legal contract and required to be in compliance with existing Laws.

It is important, in the field of intellectual property, to define transparent criteria for terms and conditions under which the institution/organization would be the owner of the IPRs and the situation in which the inventor or creator would have the right or privilege to be the owners of the IPRs that they created. [69]  The enforceability of assignment agreements act as an incentive to these individuals to create new inventions which ultimately benefits society.

It is also essential to define the ownership of created intellectual property with relation to employeremployee agreements and contract for service to encourage innovation.

IPR legislations in India provide specific rules, regulations and procedure when dealing with assignment agreements. The Rules/Acts make provisions for registering the assignment agreements and their respective schedules also provide for forms through which parties can register their assignment agreements. In order for an assignment agreement to be valid and enforceable it is essential that the assignment agreement be recorded as prescribed by the Acts and relevant Rules.

In addition to abiding by the Rules, to avoid ambiguity it is essential to ensure that the agreement clearly defines which person the ownership rests with. The assignment must be concrete and also clarify the tenure for which the individual would be the owner of the intellectual property. This would provide a precaution in case of a potential dispute on the ownership of the intellectual property.

The position of an Assignment Agreement in the intellectual property law of India is one of great consequence despite being a private transaction between the assignor and the assignee. One of the reasons for this is that the law is required to protect the owner of the intellectual property from being defrauded. It must be noted, however, that though the law does provide certain safeguards, the onus of creating a suitable assignment agreement is upon the parties concerned. A valid assignment agreement and one that benefits all parties involved can only come into being if the fundamental issues, some of which have been discussed above, are addressed.

*Edited by Dr Sudhir Ravindran, Solicitor-England & Wales, Patent & Trademark Agent and Attorney with Altacit Global, Altacit Global, Creative Enclave, III Floor,#148-150, Luz Church Road, Mylapore, Chennai 600 004. Email:  [email protected] **Email: Corresponding author:  [email protected]

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Trademark Assignment: All You Need to Know

This article on ‘Assignment of Trademarks: All you need to know’ was written by Shashanki Kaushik , an intern at Legal Upanishad.

Introduction

This article provides a comprehensive overview of the assignment of trademarks in India, focusing on the legal framework, relevant legislation, landmark judgements, and practical considerations. Understanding the nuances of trademark assignment is vital for businesses seeking to protect their intellectual property rights. In India, this process is governed by various laws, including the Trade Marks Act of 1999 and the Trade Marks Rules of 2017. This article explores the intricacies of trademark assignment, touching upon key aspects, legal provisions, and notable case law.

Assignment of Trademarks : Concept and Laws

Trade Marks Act, 1999, Section 2(1)(b): Definition of Assignment: The Act defines ‘assignment’ as the transfer of ownership, either with or without the goodwill of the business.

Section 37: Requirements for Assignment: This section outlines the essential requirements for a valid trademark assignment, including the need for the assignment to be in writing and signed by both parties.

Trade Marks Rules, 2017, Rule 68: Application for Assignment: Rule 68 specifies the procedure for filing an application for the assignment of trademarks, along with the prescribed form and fees.

Types of Trademark Assignment

• Complete Assignment- A complete assignment involves the transfer of both the trademark and the associated goodwill.
• Partial Assignment- Partial assignment entails the transfer of the trademark without the goodwill of the business.
• Assignment with Goodwill- Assignments that include goodwill are more common and ensure the new owner can benefit from the established reputation and customer base.
• Assignment without Goodwill- Assigning a trademark without goodwill is less common and may occur when the assignor intends to retain the business’s reputation.

Legal Procedures for Trademark Assignment

• Application to Registrar: The assignor and assignee must file a joint application with the Registrar of Trademarks for the assignment’s approval.
• Advertisement and Opposition: After acceptance, the Registrar will advertise the assignment application. Interested parties have the opportunity to oppose the assignment within the stipulated period.
• Issuance of Certificate: Upon successful completion of the assignment process, the Registrar issues a certificate, signifying the new owner’s rights over the trademark.

Landmark Judgments

• Ravi Kamal Bali v. Kala Tech and Entertainment (P) Ltd.

This case reaffirmed that an assignment without goodwill does not affect the validity of the assignment.

• Indian Performing Right Society Ltd. v. Dalia

In this judgement, it was held that the assignee could enforce trademark rights against third parties, even without registering the assignment.

Practical Considerations

• Due Diligence : Both parties should conduct thorough due diligence before entering into an assignment agreement, ensuring the trademark’s validity and reputation.
• Clear Agreement : The assignment agreement must be clear and comprehensive, specifying the terms, conditions, and considerations involved.
• Record Keeping : Maintaining accurate records of the assignment is crucial for future reference and potential disputes.
• Post-Assignment Compliance : The assignee must ensure compliance with ongoing trademark maintenance , including renewals and protection against infringement.

Tax Implications of Trademark Assignment

Trademark assignment can have significant tax implications for both parties involved. The consideration received or paid for the assignment may be subject to capital gains tax or other taxes, depending on the specific circumstances and applicable tax laws. It is crucial for both parties to seek professional tax advice to ensure compliance with tax regulations.

Licensing vs. Assignment

While trademark assignment involves the complete transfer of ownership, licensing allows the owner (licensor) to grant permission to another party (licensee) to use the trademark under specific terms and conditions. Licensing gives more control to the trademark owner and allows for greater flexibility in terms of use, territory, and duration. Assignment, on the other hand, transfers all rights and responsibilities to the assignee, including the duty to protect and enforce the trademark.

Franchising and Trademark Assignment

Franchising often involves the assignment of trademarks to franchisees. This allows franchisees to operate under a recognized brand, benefiting from the established reputation and marketing efforts of the franchisor. Franchise agreements typically include detailed provisions regarding trademark usage, quality control, and territorial rights. Careful consideration of trademark assignment is essential in the franchising context to maintain brand consistency and protect the trademark’s value.

International Enforcement of Trademark Assignment

Enforcing trademark assignments across international borders can be challenging due to varying legal systems and regulations. Businesses engaging in cross-border trademark assignments should consider international treaties such as the Madrid Protocol and the Paris Convention, which provide mechanisms for protecting trademarks in multiple countries. Additionally, legal counsel with expertise in international trademark law is essential to navigate the complexities of enforcing trademark assignments globally.

International Perspective

Paris Convention for the Protection of Industrial Property (1883): India, as a signatory to the Paris Convention, recognizes the principle of national treatment for foreign trademark owners, providing a basis for international trademark assignment.

TRIPS Agreement (1994): The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, part of the World Trade Organization (WTO), sets minimum standards for the protection of trademarks and includes provisions related to trademark assignment.

International Trademark Assignment

Madrid Protocol : Under the Madrid Protocol, businesses can efficiently protect their trademarks in multiple countries by filing a single international application. India became a member of the Madrid Protocol in 2013, facilitating international trademark assignments for Indian businesses.

International Trademark Assignment Case Study: Coca-Cola : Coca-Cola’s global presence is a prime example of an effective international trademark assignment. Through careful planning and legal strategies, the company has maintained consistent branding worldwide.

Trademark assignment is a vital aspect of intellectual property management in India. It provides opportunities for businesses to monetize their assets or expand their market presence. However, navigating the legal framework, complying with procedures, and safeguarding interests require careful consideration. As demonstrated through relevant legislation and case law, understanding the intricacies of trademark assignment is indispensable for both assignors and assignees in India.

List of References

• Mayashree Acharaya, ‘Assignment of Trademark’, CLear Tax, 22 February 2022, available at: https://cleartax.in/s/ass i gnment-of-trademark
• ‘Assignment and Transmission of Rights’, Selvam & Selvam, available at: https://selvams.com/kb/in/trademarks/assignment/
• ‘Trademark Assignment’, Corpbiz, available at: https://corpbiz.io/trademark-assignment

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Patent Assignment Natural person(s) and/ or Startup Small entity, alone or with natural person(s) and/ or Startup Others, alone or with natural person(s) and/ or Startup and/ or small entity Natural person(s) and/ or Startup Small entity, alone or with natural person(s) and/ or Startup Others, alone or with natural person(s) and/ or Startup and/ or small entity On application for the entry in the register of patents of the name of a person entitled to a patent or as a share or as a mortgage (patent assignment) 1600 (In respect of each patent) 4000 (In respect of each patent) 8,000 (In respect of each patent) 1750 (In respect of each patent) 4400 (In respect of each patent) 8,800 (In respect of each patent)

*Official fees for patent assignment depends on the type of applicant. Professional fees not included.

The “First Schedule” appended to Rules, providing for the official fees for assignment of patent in India can be accessed here .

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Assignment of Trademark

Updated on : Jun 14th, 2024

Trademark proprietors can transfer trademarks similarly to how they can transfer physical properties. One of the ways to transfer a trademark is through an assignment. Assignment means transferring rights, interests, titles and benefits from one person to another. Assignment of a trademark means to transfer the owner’s right in a trademark to another person.

The transferring party is called the assignor, and the receiving party is called the assignee. Section 2(1)(b) of the Trade Marks Act, 1999 states that assignment means an assignment of a trademark in writing by the act of the concerned parties. Both unregistered and registered trademarks can be assigned with or without the goodwill of the business.

Who can Assign a Trademark?

Section 37 of the Trade Marks Act, 1999 states that the person registered as proprietor of trademark in the register of trademarks has the power to assign a trademark and receive consideration for such assignment. Thus, a trademark proprietor can assign a trademark to another person.

Kinds of Trademark Assignment

The different kinds of trademark assignments are as follows:

Complete Assignment  

The trademark proprietor transfers all rights in the trademark to another person, including the right to earn royalties, to further transfer, etc. 

For example: X is the proprietor of brand ‘ABC’. X assigns his trademark ‘ABC’ completely through an agreement to Y. After this, X will not have any rights with respect to the brand ‘ABC’.

Partial Assignment

The trademark proprietor assigns the trademark to another person with respect to only specific services or goods. The transfer of ownership in the trademark is restricted to specific services or products.

For example: X is the proprietor of a brand ‘ABC’ used for sauces and dairy products. X assigns the rights in the brand ‘ABC’ with respect to only dairy products to Y and retains the rights in the brand  ‘ABC’ with respect to sauces.

Assignment with Goodwill of Business  

The trademark proprietor assigns the rights, entitlements and values associated with a trademark to another person. When the trademark is assigned with goodwill, the assignee can use the trademark for any class of goods or services, including the goods or services which were already in use by the assignor. 

For example: X is the proprietor of ‘Sherry’ brand relating to hair products. X assigns the brand ‘Sherry’ to Y with goodwill. Y will be able to use the brand ‘Sherry’ with respect to food products and any other products they manufacture.

Assignment without the Goodwill of Business  

The trademark proprietor assigns to the assignee rights and entitlements in a trademark with respect to the products or services that are not in use. The assignor restricts the transfer of the rights in the trademark in the case of assignment without goodwill. The assignor assigns with the condition that the assignee is not entitled to use the trademark relating to the goods or services already in use by the assignor.

For example: X is the proprietor of a brand ‘Sherry’ that he uses for manufacturing and selling bags. X assigns the brand ‘Sherry’ without goodwill to Y. Y will be able to use the brand ‘Sherry’ for any other product other than bags.

Pre-Requisites for Assignment of Trademark

• The trademark assignment should be in writing.
• The assignment should be between two identifying parties, i.e. assignor (owner of the trademark) and the assignee (buyer of the trademark).
• The assignor should have the intent and must consent for the trademark assignment.
• The trademark assignment should be for a proper and adequate consideration (amount).

Trademark Assignment Agreement

The proprietor of a trademark generally assigns it to the assignee through a properly executed trademark assignment agreement. The trademark assignment agreement should be drafted keeping the following points in mind:

• The rights of the trademark should not be detrimentally affected due to the obligations contained in the agreement.
• The decision and requirement regarding whether the assignment is with or without the goodwill of the business must be explicitly mentioned.
• The agreement should show a clear purpose of the transaction/assignment.
• The geographical scope of the location where the assignee possesses the values and rights in the trademark must be mentioned.
• The transfer of the right to collect and sue damages for future and past infringements must be mentioned.
• The agreement should be duly executed, i.e. it must be stamped and notarised as per the applicable Stamp Act.
• The signatures and witnesses must be mentioned.
• The place and date of agreement execution must be mentioned.
• The date and day of the assignment along with the parties to the assignment must be mentioned.
• The agreement should mention whether or not it would be binding on the legal heirs of the assignor and assignee.

Process of Assignment of Trademark

The process of assignment of the trademark in India are as follows:

• The proprietor of the trademark (assignor) assigns his/her rights in the trademark through a trademark assignment agreement to the assignee.
• The assignor or assignee, or both, can make a joint request to register the assignment by filing an application of a trademark assignment in Form TM-P to the register of trademarks.
• Form TM-P must be filed with the registrar of the trademark within six months from the date of the assignment. The application can be filed after six months of assignment, but the fee may vary accordingly.
• The assignment must be advertised in such a manner and within the period directed by the registrar of trademarks.
• The copy of the advertisement and the registrar’s direction should be submitted to the office of the registrar of trademarks.
• Upon the receipt of the trademark assignment application (form TM-P) and required documents, the registrar of trademarks will register the assignee as the proprietor of the trademark and record the specifications of the assignment in the register.

Documents Required for Assignment of Trademark

The following documents must be submitted to the registrar of trademark along with form TM-P:

• Trademark assignment agreement.
• Trademark certificate.
• NOC from the assignor.
• Identification documents of the assignor and assignee.

Restrictions on Assignment of Trademark

The Trademarks Act, 1999 provides the following restrictions on trademark assignment:

Parallel Use Restriction  

The assignor cannot assign a trademark when the assignment results in the creation of exclusive rights in different persons with relation to the same or similar products or services and will likely deceive or cause confusion. Thus, multiple exclusive rights relating to the same/similar products or services in different persons are not allowed. It prevents the parallel use of a trademark by more than one person in relation to the same/similar products or services.

Multiple Territorial Use Restriction  

The assignor cannot assign a trademark when the assignment results in the creation of an exclusive right in different persons in various parts of India relating to the same/similar products or services. The assignor cannot assign a trademark when the assignment results in the creation of an exclusive right in different persons in various parts of India relating to the same/similar products or services sold or delivered outside India. Thus, assigning rights in different parts of India relating to the same/similar products or services is not allowed.

Benefits of Trademark Assignment

• The trademark assignment enables the trademark proprietor to encash the value of his/her brand.
• The assignee obtains the rights of an already established brand due to trademark assignment.
• The trademark assignment supports the assignor and the assignee to expand their respective businesses.
• The trademark assignment agreement enables the assignor and the assignee to establish their legal rights in case of any dispute.

Disclaimer: The materials provided herein are solely for information purposes. No attorney-client relationship is created when you access or use the site or the materials. The information presented on this site does not constitute legal or professional advice and should not be relied upon for such purposes or used as a substitute for legal advice from an attorney licensed in your state.

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Trade Mark Assignment Agreement

Type of assignment of trademark, restriction on assignment where multiple exclusive rights are created.

• Same goods or services
• Same description of goods and services
• Goods or services or description of goods or services which are associated with each other.

Restriction On Assignment Where Multiple Exclusive Rights Are Created In Different Part Of India

Registration of assignment, discretion provided to the registrar, position of non-registered assignee, trade dispute.

• Johnson appliances (P) Ltd. v. H.E. Industries, 2016 (68) PTC 247 (Del), p. 275.
• Riverdale School Society v. Riverdale High School, 2008 (36) PTC 131 (IPAB).

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India Assignment Agreement

This document is up to date! It was last reviewed by a lawyer in August 2024 .

This agreement is used when one party (the assignor) agrees to assign a contract, or the rights in a contract, or another income/object to a second party (the assignee). In exchange for the assignment, the assignee may give the assignor money or personal property, or forgive a debt or obligation.

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This form also known as: contract assignment agreement, transfer contract rights form, assignment of cntractural rights

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Assignment of contract

This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law University, Sonipat. This article explains the meaning, types, and conditions of the assignment of contract. It also seeks to explain the judicial opinion about assignment by the means of a case study. 

This article has been published by Sneha Mahawar .

Table of Contents

Introduction

A contract binds the involved parties to fulfil their obligations. Non-fulfillment of the obligations results in the breach of the contract. Thus, the rights and obligations arising from the contract are owned by the contracting parties. However, in certain cases, these contractual rights and obligations can be transferred to a third party. This is known as the assignment of contract. In a world where the complexity of transactions is increasing continuously, such assignments have become very common. 

Basics of a contract 

Section 2(h) of the Indian Contract Act, 1872 defines a contract as “an agreement enforceable by law”. It is characterised by an offer and an acceptance along with consideration and is backed by the power of law. An agreement is a promise by one party to another. A proposal once accepted becomes a promise. The formation of a contract results in rights and obligations for both parties. A lawful contract binds both parties to fulfil their obligations. In case they are not fulfilled, the aggrieved party can avail of the remedies provided by the law. 

Thus, Contract= (Offer + Acceptance) Agreement + Enforceability of law 

For example: ‘A’ promises to sell his house to ‘B’ for a consideration of Rs. 50 lakhs. Here, there was an offer to sell the house by ‘A’ and acceptance by ‘B’ for consideration of a fixed sum. It is a lawful agreement and hence is a contract. Here, ‘A’ has the obligation to give the house to ‘B’ and ‘B’ has an obligation to pay the amount. If either of them fails to fulfil their respective obligation, it will result in a breach of the contract. 

What is assignment of contract 

When the rights and obligations in a contract are transferred to a third party, who is not a party to the contract, it is called the assignment of contract. For example, in the case where there was a contract between ‘A’ and ‘B’ where ‘A’ was supposed to pay ‘B’ some amount, ‘A’ had an obligation to pay ‘B’ the amount and ‘B’ had the right to receive the amount. Along with this, if ‘B’ had to pay the same amount to ‘C’ and he asked ‘A’ to pay the money directly to ‘C’, it can be called an assignment of the obligation by ‘B’ to ‘A’. It is covered in Section 37 of the Indian Contract Act, 1872. The Section provides that a party can dispense the performance of the contract by the assignment of it to a third party. This concept can also be found in the Transfer of Property Act, 1882 . The use of assignments has increased tremendously in recent times owing to the financial and contractual complexities of the transactions. Usually, it is employed in high-risk transactions that are secured by assigning the contractual rights along with the securities (like hypothecation or mortgage).

The party currently holding the rights and obligations of the existing contract is called the ‘assignor’ and the party to whom they are assigned and taking over the position is called the ‘assignee’. The transfer takes place from the assignor to the assignee. Also, it is pertinent to note that assignment does not affect the rights and responsibilities of the parties involved in any way. These rights and duties remain the same. And even after the transfer, the assignor remains liable if any problems arise unless there was an agreement to the contrary. Thus, the assignment of the contract involves an incorporeal transfer of the rights and obligations. And as per the laws of India, these transfers must be brought onto paper.  

How does assignment of contracts work 

The assignment depends upon several factors including the provisions of the contract entered into by the parties. The original contract may contain a clause that does not permit the assignment or make the consent of the other party necessary before the assignment. The contract can also contain a stipulation that states that the liability of the agreement would lie with the original parties, even after the assignment. This happens in situations where the assignor acts as a guarantor for the performance of duties as per the contract by the assignee. Acting as a guarantor makes the assignor liable. It is also possible that a contract may permit an assignment without any formal notification to the other party. But in this case, it is important for that party to create a ‘Letter of Assignment’ containing the details to notify all other contracting parties. The letter must be signed by both outgoing and incoming parties. 

For example: If ‘A’ and ‘B’ enter into a contract and include a clause that does not allow the assignment of the contract, neither of them can transfer their rights and liabilities to a third party. And if the contract contains a clause that necessitates the requirement of consent, then neither of them can transfer the rights and obligations without the other party’s consent. Also, if ‘A’ decides to assign his obligations to ‘C’ and acts as a guarantor for ‘C’, then also ‘A’ will continue to hold the liability. 

Enforceability of the assignment

Usually, assignments of contract rights and obligations are enforceable. However, under some circumstances, they are not enforced. These are as follows:

• If the provisions of the contract prohibit the assignment of the contract explicitly and it still happens somehow, it will be considered to be void. Such a clause is called an ‘anti-assignment clause’. 
• Sometimes, due to the assignment of contractual rights and obligations, the basics of the contract are altered. In such circumstances, it cannot be considered enforceable. For example, if performance is affected by the assignment, it will probably not be enforced by the court. 
• The assignment will not be enforced if it is illegal or contrary to the law in some or the other way. 

Contracts that can be assigned 

As per Indian law, any kind of contract can be assigned, provided it conforms to the provisions of the contract and is carried out with the consent of the parties involved. Also, for any contract whose foundation lies upon the ‘personal skills’ of the promisor, such a contract cannot be assigned under any circumstances. This is because such a contract depends upon the qualities or qualifications of the promisor only and cannot be found in someone else, thus, the obligations cannot be assigned in such a case. This has also been highlighted by our judiciary that two types of contracts can never be assigned, that are:

• Where the contract is personal in nature.
• Where the assignment of rights is prohibited either by the law or by the contract.

Thus, it is prudence that is followed while deciding the assignability of a contract. It is prudent to explicitly state the conditions regarding assignment in the contract itself, taking due care of the limits placed by the law.  

Who can handle assignment of a contract 

The most competent person to handle the assignment of contract is an attorney. An attorney is a licensed court practitioner who acts as a deputy or the agent of the party he/she is representing in the court of law. Such contracts need professional expertise as they contain some very technical and intricate details that are crucial for the correct and beneficial assignment. 

Types of assignable contracts

As per the common law, the assignment was done by the way of  three kinds of transactions:

• Novation- In simple words, it is an agreement wherein both contracting parties permit the substitution of an existing party with a new one in the contract. Thus, there is a novation of contract where the original party is discharged of its obligations and they are transferred to a new party. This can be called the assignment of contractual obligations. However, there is an essential difference between both. In the assignment, the rights and obligations are transferred from one party to another. But in novation, instead of a transfer, one party substitutes another.  
• Acknowledgment – Where both the parties acknowledge that the interests in the contract can be assigned to a third party in the contract, then the assignment can take place with the consent of both. 
• Power of attorney – It is a legal document that allows a person to appoint someone to organise or manage various affairs including personal and financial. Thus, in a way it is like appointing an agent to conduct professional transactions, settle claims and cater to business demands.

As per the existing laws in India, there are broadly two types of assignment. 

• Legal – A legal assignment is the one that is carried out as per Section 130 of the Transfer of Property Act, 1882 . it is characterised by all the formalities, intention to assign, communication to the assignee, and notice to the debtor. In this, a proper formal agreement is drafted giving assent to the assignment, as per the procedure laid down by the law. The consent of the party is sought first and a notice is sent. Proper communication is sent to the assignee as well. Finally, with all the formalities done, the assignment is carried out. 
• Equitable – An equitable assignment holds good only in equity and not in the eyes of law. It can be related to a transfer of future benefits which is not enforceable by law. In respect of equitable charges attached to a property, the courts are bound to follow the laws laid down. Thus, as held in B.N. Railway Employees’ Urban Bank v. Seager (1941), an equitable assignment can be created only by a written document as per the provisions of the Transfer of Property Act, 1882. 

Modes of assignment 

The assignment of contractual rights and liabilities has been covered under Section 130 of the Transfer of Property Act, 1882 under the heading of ‘actionable claim’. An actionable claim can be transferred simply by the execution of a written instrument. Nothing more is required. The contract permitting assignment must be clearly laid down, strictly adhering to the provisions of this Section. The intention to assign must be clear and certain. Under Indian property laws, a deed is required for the assignment. And this deed must be duly stamped. However, stamp duty is extremely high in India. Also, it is a subject that falls in the concurrent list. So when it is legislated on by both centre and states, it leads to variations and there is no uniformity. This acts as a hindrance in the way of assignment. 

Validity of part-assignment

In the case of Doraisami v. Doraisami (1924), following the English precedent, it was held that if there is an assignment of a debt, the transfer must be of the whole debt and not just a portion of it. Thus, part-assignment was not recognised. However, in the subsequent case of Rajamier v. Subramaniam (1928) , the previous judgement was overruled. It was recognized that even though part-assignment was not recognised in the English common law, part-assignment of debt was a valid transfer as it was held to be good in equity. However, it was also laid down that in such part-assignments, while enforcing a claim, it was necessary to implead the owner of the rest of the portion as well. It was observed that no such distinction was made in the Transfer of Property Act, 1882. Thus, both may be transferred under the term ‘actionable claims’. 

However, the only problem that persists is presented by Order 2 Rule 2 of the Code of Civil Procedure, 1908. As per this, a single cause of action cannot be allowed to be split into many. Thus, it may prevent the owner of a part of the debt from enforcing his rights. Thus, to avoid this, the lenders often submit a substitution claim or notice in the court so that this provision is not applied. 

Assigning intellectual property 

Assignment of intellectual property implies the transfer of the owner’s rights in copyrights, patents, trade secrets, trademarks, and such other intangible properties. Many times, companies look to sell or transfer their intellectual property because an excess of these can prove to be a burden for them. Maintaining intellectual property requires continuous registrations, defending suits against third-party claims or marketing, and creating a finished product. Thus, such transfers can generate good profit for the company and save it from unnecessary expenditure. On the other hand, several companies look for purchasing such property to provide an impetus to their growth. Thus, when intellectual property is assigned, all the rights, titles, and interests with respect to it are transferred to the assignee from the assignor.  

Assignment of contract in real estate 

The use of assignments in real estate is known as ‘real estate wholesaling’ . As per this, the real estate dealers instead of going by the conventional way of buying and selling the house, enter into a contract and then reassign it to another buyer so as to avoid the additional costs and pocket the profit earned in doing so. This is possible because a real estate purchase agreement does not contain a binding obligation to actually buy the property. Such an agreement is called an ‘Assignment of Real Estate Purchase and Sale’ agreement. Thus, here the assignor merely acts as a middleman, selling their right to buy the property with an equitable interest, i.e. in exchange for an assignment fee from the assignee, who is the ultimate buyer of the property.

Alternatives to assignment of contract 

There are certain other types of transfers that operate as an alternative to assignment. 

They are as follows:

• Licensing- It is an agreement under which a party owning the rights over the property (for example – owning patent rights in case of intellectual property) leases those rights to another, without actually selling or assigning them. Thus, the second party gets a licence to use those rights owned by the first party, for its benefit.  
• Delegation- Delegation basically implies appointing someone else to do the work for you. For example, ‘A’ gets a contract to cut the grass from ‘B’s garden. ‘A’ might delegate the work to ‘C’ without actually assigning the contract to him. But ‘A’ will still control the work and receive the payment. 

Case laws on assignment of contract 

Kapilaben and ors. v. ashok kumar jayantilal sheth through poa gopalbhai madhusudan patel and ors., (2019), facts of the case.

In this case, the appellants here had executed an agreement to sell in 1986 in favour of some of the respondents. The respondents had paid only a portion of the consideration amount. Thereafter, the original buyers, i.e. the respondents executed another agreement to sell in 1987 in respect of the same property in favour of Respondent 1 who was not included in the agreement of 1986. Subsequently, a dispute arose among the parties, and Respondent 1 filed a petition against both the original sellers and buyers seeking specific performance of the 1987 agreement. The petition was dismissed by a trial court citing that the original buyers could not have transferred the contract and assigned their obligation to a third party without the written consent of the original seller. Additionally, there was no evidence suggesting that the seller’s consent was taken. However, the decision was overruled by the High Court of Gujarat. Later on, the matter went to the Supreme Court of India

Issue involved in the case

Was the assignment of obligations by the original buyers to Respondent 1 without the consent of the original seller valid? 

Judgment of the Court

The Supreme Court laid down the following principles in its judgment:

• Assignment of contractual liabilities, where the parties agree to substitute the old contract with a new one where the same responsibilities are transferred to another party is called novation. However, this assignment cannot occur without the consent of the other party to the contract. 
• The rights and obligations under a contract are freely assignable unless the contract is personal in nature or is prohibited by the law. 
• It was finally held that an assignment cannot be held valid just because it is not explicitly prohibited by the provisions of the contract. In order to classify an interest in the contract to be assignable, the terms of the contract and circumstances must be taken into consideration to infer whether the pirates intended to make the interests assignable.

Robinson v. Davison, (1871) 

In this case , the defendant’s wife had promised to play the piano at a concert. However, she failed to perform owing to her bad health. As a result, the plaintiff sued for compensation. 

Issues involved in the case

• Can the plaintiff seek compensation in the present case?
• Could assignment of contract be allowed to a third party?

The Court held that the performance of the present contract depended upon the personal skills of the defendant’s wife, which in turn depended on her good health. Thus, non-performance due to ill-health discharged the contract. Hence, no compensation could be claimed. Also, since the contract was based on the promisor’s personal skills and capability, it could not be assigned to a third party. 

Conclusion 

Assignment of contracts has become a common phenomenon in recent times. However, it is important that the assignments conform to the provisions laid down by the law. It must be carried out with the consent of the contracting parties. There are certain cases where the assignment is not possible like the contracts which are personal in nature, where there is an explicit provision in the contract to prohibit it, or when the law does not allow it in particular cases. These conditions must be adhered to. In fact, our law recognises both legal and equitable assignments. These assignments are covered under the provisions of the Transfer of Property Act, 1882, and the Indian Contract Act, 1872. Thus, all the contracts where the contractual rights and obligations are transferred to a third party are valid, provided all the conditions laid down by law are followed. 

References 

• http://docs.m anupatra.in/newsline/articles/Upload/E915DA6B-361C-493B-91D1-96D8EB703128.pdf
• https://www.thebalancesmb.com/what-is-an-assignment-of-contract-in-a-business-agreement-4587747
• https://www.nolo.com/legal-encyclopedia/assignment-of-contract-basics-32643.html
• https://www.contractscounsel.com/b/assignment-of-contract  

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Describing Singapore as an "important facilitator" of India's Act East policy, PM Modi said, "Our strategic partnership is completing a decade. Over the past 10 years, our trade has more than doubled. Mutual investment has increased almost threefold to cross USD 150 billion. Singapore was the first country with which we launched the UPI Person-to-Person payment facility." Noting that in the past ten years, 17 satellites of Singapore have been launched from Indian soil, PM Modi said bilateral cooperation has gained momentum from skilling to the defence sector.

"I am pleased that today, we are together elevating our relationship to a Comprehensive Strategic Partnership," he said.

Both leaders witnessed the exchange of MoUs for cooperation in semiconductors, digital technologies, skill development and healthcare. These are the outcomes of the deliberations during the two rounds of India-Singapore Ministerial Roundtables held so far.

Prime Minister Modi also announced the setting up of an Invest India office in Singapore, which will be a handholding office for investors in Singapore in various areas identified in the six pillars.

At their talks, both leaders reviewed existing cooperation in the fields of defence and security, maritime domain awareness, education, AI, Fintech, new technology domains, science and technology and knowledge partnership, the Ministry of External Affairs (MEA) said.

The leaders also exchanged views on important regional and global issues of mutual interest, including India-ASEAN relations and India's vision for the Indo-Pacific.

In a joint statement, the two countries committed to work together to promote peace and stability across the Indo-Pacific region, which would help promote free trade and open markets.

The two leaders "reaffirmed the importance of maintaining and promoting peace, security, stability, safety and freedom of navigation in and overflight above the South China Sea," the joint statement said, in a veiled reference to China, which claims most of the South China Sea, while the Philippines, Malaysia, Vietnam, Brunei, and Taiwan have counterclaims.

PM Modi also said India's first Thiruvalluvar Cultural Centre would soon be inaugurated in Singapore. "The great saint Thiruvalluvar provided guiding thoughts to the world in the most ancient language Tamil. His work, the Thirukkural, was composed nearly 2,000 years ago, yet its ideas remain relevant today," he added.

The two leaders discussed the outcome of the 2nd India-Singapore Ministerial Roundtable held in Singapore in August 2024. Their discussion also covered the celebration of the 60th anniversary of bilateral ties in 2025.

The Prime Minister invited Lawrence Wong to visit India, which he accepted.

PM Modi thanked Lawrence Wong for the warm welcome. "This is our first meeting after you assumed the post of premier. Many congratulations to you from my side. I am confident that under the leadership of 4G (the fourth-generation leaders), Singapore will progress even faster," PM Modi said.

"The discussions with my friend, PM Lawrence Wong continued today. Our talks focused on boosting cooperation in areas like skilling, technology, healthcare, AI and more. We both agreed on the need to boost trade relations," PM Modi later said in a post on X.

Lawrence Wong said Singapore and India share a deep and enduring friendship, built on strong economic and people-to-people ties.

"Had a productive meeting with Indian Prime Minister @narendramodi at Parliament House. We've set out a forward-looking agenda for the next phase of our bilateral relations," he posted on X.

"This includes closer cooperation in areas like sustainability, advanced manufacturing, digital technologies and connectivity. We're also upgrading the Singapore-India Strategic Partnership to a Comprehensive Strategic Partnership," he said.

"This is timely as we expand our partnership in new, mutually beneficial areas. We also celebrate 60 years of diplomatic relations and our Strategic Partnership's 10th anniversary next year," Lawrence Wong said.

Singapore looks forward to strengthening bilateral ties and creating new opportunities for the people of the two nations, he said.

Ahead of the talks with Lawrence Wong, PM Modi received a ceremonial welcome at the Parliament House.

The meeting between the two leaders comes months after Lawrence Wong took over as premier and PM Modi began his third term as prime minister.

PM Modi and Lawrence Wong also visited a leading Singaporean company in the semiconductor and electronics sector and discussed ways for collaboration in this critical industry. This is his fifth visit as prime minister, all prior visits were made in his first term as prime minister.

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Sub-Contracting And Assignment : Resolving The Legal Conundrum

Contributor.

The performance of a contract may require third party involvement towards the fulfilment of obligations under a contract. In certain specific circumstances, the contracting parties may decide to "sub-contract" or "assign" their rights and obligations to a third party depending upon the nature of the contract.

In common parlance, sub-contracting and assignment are used interchangeably, however, a significant difference lies between the two when one examines the terms from a legal stand point. This post aims to discuss the concept of Sub-Contracting and Assignment and explains the key difference between the two concepts.

Sub-contracting

Sub-contracting refers to the delegation of certain duties and obligations by contracting parties to a third party, i.e. a sub-contractor who aids in the performance of the contract. According to the Black's Law Dictionary, a sub-contract is "where a person has contracted for the performance of certain work and he, in turn, engages a third party to perform the whole or part of that which is included in the original contract, his agreement with such third person is called a subcontract and such person is called a subcontractor ." 1 A subcontractor could be a company, self-employed professionals or an agency undertaking to fulfil obligations under a contract.

Sub-contracting is generally undertaken in complex projects where the contract has a prolonged life cycle or multiple components for completion of a project, for instance, infrastructure contracts, construction contracts, renewable energy contracts or certain information technology-related contracts. However, the rights and duties of the sub-contractor under the sub-contracting agreement are relatively similar to that of the principal contractor in the main agreement.

Furthermore, while drafting a contract, one must ensure to incorporate a clause on sub-contracting which clearly spells out that parties to the contract shall sub-contract the rights and obligations only after seeking prior written consent from the other party. The sub-contracting arrangement maybe two-fold, depending upon the nature of the main contract:

Primarily, the basic idea behind delegation of the obligations to a sub-contractor is to ensure greater flexibility in the performance of the contract. However, it is imperative to enter into a sub-contractor's agreement that specifies all the details of the work to be performed by the subcontractor, including optimum time required to accomplish the task, payment of charges to the subcontractor, termination of the agreement, etc.

While subcontracting is time-saving and cost efficient, it may result into legal issues between the contracting parties. For instance, issues may arise with respect to the payment conditions where the payment to sub-contractor is contingent upon or linked to the principal contractor receiving its payment from the employer. Further, the courts in India have always upheld the principle of privity of contract between employer and the principal contractor on the one hand and between the principal contractor and sub-contractor(s) on the other. The Supreme Court of India in the case of Zonal General Manager, Ircon International Ltd. v. Vinay Heavy Equipments 2 upheld that in the absence of a back-to-back covenant in the main contract, " the distinct and sole liability of the middle-contractor is presumed and that the rules in relation to privity of contract will mean that the jural relationship between the employer and the main contractor on the one hand and between the sub-contractor and the main contractor on the other will be quite distinct and separate" . Therefore, in order to avoid ambiguities and future legal squabbles, careful consideration must be given while drafting specific terms and obligation that will pass down the contractual chain.

Assignment of contract refers to an act of transferring contractual rights and liabilities under the contract to a third party with other party's concurrence. Section 37 of the India Contract Act, 1872 (" Contract Act ") enables the contracting parties to dispense with the performance of a contract by way of an assignment. While the principle of assignment is well recognized under Indian law, it derives its origin from the English law.

Assignment of rights is a "complete transfer of rights to receive benefits" accruing to one party under a contract. Performance of a contract may be assigned as long as the contracting parties provide their consent towards the assignment. However, the act of assignment needs to be looked at from the perspective of the contracting parties. Essentially, there are three parties involved, namely, the assignor, assignee and obligor.

An important principle affecting assignments is that the burden or liability under a contract cannot be assigned. Essentially, the moot question that often arises is with respect to assignment of "rights" vis à vis assignment of "obligations". The Supreme Court in the case of Khardah Company Ltd. v. Raymon & Co. (India) Private Limited 3 categorically distinguished between assignment of "rights" and "obligations". The court upheld that, " an assignment of a contract might result by transfer either of the rights or of the obligations thereunder. But there is a well-recognised distinction between these two classes of assignments. As a rule, obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is really a novation resulting in substitution of liabilities. On the other hand rights under a contract are assignable unless the contract is personal in its nature (or) the rights are incapable of assignment either under the law or under an agreement between the parties" . Primarily, the court clarified that obtaining prior consent to assign "obligations" under a contract would be considered as novation as it will result into substitution of liabilities and obligations to the assignee. Moreover, introduction of a new party into an existing contract will result into novation of a contract i.e. creation of a new contract between original party and new party. As the courts have interpreted that transfer of obligations can be undertaken through novation, the assignment clause in a contract must clearly deal with novation, if the intention is to transfer obligations.

Furthermore, the Supreme Court, in the case of Gopalbhai Manusudhan 4 , reaffirmed that whenever there is a case of assignment or even the transfer of the obligations, it must be acclaimed that there is the presence of the consent of the parties. Without the consent of the parties, the assignment will be not considered valid. In addition to upholding the legal point, this ruling also indicates that before establishing a commercial contract, the parties must consider the different complications of contracts, such as the objective of the contract and the presence of an assignability clause in the agreement.

Therefore, the judicial trend in India has time and again reiterated and laid down that rights under contract can be assigned unless (a) the contract is personal in nature i.e. requires personal engagement of a specific person or (b) the rights are incapable of assignment either under law or under an agreement between the parties. In the case of Robinson v. Davison 5 , the defendant's wife pledged to perform piano at a concert on a specific date. Due to "her illness", she was unable to fulfil her obligation, which was to play the piano at an event. The contract in this instance was ruled to be solely dependent on the defendant's wife's good health and personal talent, and the defendant's wife's illness led the contract to be void. Further, the court ruled that the defendant could not be held liable for damages as a result of the contract's non-performance. The wife could not assign her right/obligation to a third party because the contract was founded on the "promisor's expertise" in the aforesaid case.

While assignment is a boiler plate clause, it requires careful consideration on a case-to-case basis. For instance, in real estate transactions, a buyer would insist on retaining the right to assign the "agreement to sell" in favour of a nominee (a company, affiliate or any other third party), in order to facilitate final conveyance in favour of the intended buyer. Similarly, in lending transactions, a borrower will be prohibited from assigning rights under the contract, however, the lender will retain absolute and free right to assign/sell loan portfolios to other lenders or securitisation company.

The apex court has time and again reiterated that the best policy is to unequivocally state the intent with respect to assignment in the agreement to avoid litigation in the future. The contracting parties must expressly specify the rights and obligations stemming from assignment under a contract. Any agreed limitation on such an assignment must be expressly laid down in the contract to avoid adverse consequences.

For a person drafting a contract, it is important to understand these subtle differences, between sub-contracting and assignment. While "sub-contracting" is delegating or outsourcing the liabilities and obligations, "assignment" is literally transferring the obligations. It will be not fallacious to say that an "assignment" transfers the entire legal obligation to perform to the party assigned the obligation whereas, subcontracting leaves the primary responsibility to perform the obligation with the contracting party.

1. Black's Law Dictionary 4th ed. (St. Paul: West, 1951).

2. 2006 SCC OnLine Mad 1107

3. MANU/SC/0428/1962

4. Kapilaben & Ors. v Ashok Kumar Jayantilal Seth through POA Gopalbhai Manusudhan 2019 (10) SCJ 269

5. (1871) LR 6 Ex 269

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.

Corporate/Commercial Law

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