Assignment of trademarks property of business groups and assurance to consumers regarding protection against risk of confusion

Abstract

Trademarks, as a patrimonial asset and real property right, can be transferred or subject of conveyance as an expression of the autonomy of the will and the free disposition of its owner. However, Article 161 of Decision 486 by the Andean Community establishes a series of requirements and considerations that must be observed by those interested in carrying out this act and by the office in charge of industrial property public registration, specifically, ensuring that the risk of confusion among consumers is mitigated. Therefore, this article presents an approach to the way in which this situation should be analyzed in the field of transactional operations of brands that belong to companies that, in turn, make up a business group.
This article conducts a literature review of the trademark portfolio management led by business groups, in terms of the transfer of the records belonging to one of the companies that make part of a given group and other business societies, in view of the requirements and considerations established by Article 161 of Decision 486 by the Andean Community, which are aimed at mitigating the risk of confusion among consumers derived from such transfers. To this end, we provide a description of common practices by different industrial property offices in the Andean Community area and the Colombian Superintendence of Industry and Commerce in its role of administrating the public registry of industrial property.