When a licence is granted by a non-owner: what to do first
A licence granted by someone who does not hold the underlying right is not automatically void, but it does not bind the true owner either. Your first task is not to argue policy — it is to establish, quickly, who actually owns the asset and what the register or contract chain shows. Everything else follows from that single check.
Legal basis
Entitlement to license depends on the type of asset and on what is recorded about it. For an EU trade mark, ownership and licensing follow the register kept under Regulation (EU) 2017/1001 (EUTMR): whoever appears as proprietor, or as a recorded licensor, is presumed entitled unless the record is challenged. For a unitary patent, the equivalent register operates under Regulation (EU) No 1257/2012. For software, the exploitation rights that a licence purports to grant — reproduction, adaptation, distribution — are the rights defined by Directive 2009/24/EC, and a purported licensor must hold those specific rights, not merely possess the code. For a database protected by the sui generis right, the relevant entitlement is the one described in Directive 96/9/EC, which belongs to the maker of the database, not to anyone who merely has access to it.
Where the asset does not fall under one of these instruments, entitlement to license is a matter of the contract and of the law governing that contract. No EU regulation fills that gap; the answer sits in the assignment chain and in general contract principles applied by the competent court.
| Asset type | What determines entitlement | Where to check first |
|---|---|---|
| EU trade mark | Register entry under Regulation (EU) 2017/1001 (EUTMR) | Proprietor and licensee entries on the register |
| Unitary patent | Register entry under Regulation (EU) No 1257/2012 | Register of unitary patent protection |
| Software | Exploitation rights under Directive 2009/24/EC | Development, employment or assignment contracts |
| Database (sui generis) | Maker's right under Directive 96/9/EC | Records of who invested in creating the database |
| Other IP or unregistered rights | Assignment chain and applicable contract law | The full chain of title, contract by contract |
Practical consequence
If the licensor turns out not to own the right, three things happen at once. The licence you relied on may give you no defence against the real owner. The fees or royalties already paid may need to be recovered from the wrong party. And any sublicences or product launches built on that licence inherit the same defect. The longer the gap between signing and discovery, the harder each of these becomes to unwind cleanly.
What to do first
- Freeze new reliance. Stop granting sublicences or shipping updates that depend on the disputed licence until entitlement is confirmed.
- Pull the register or contract chain. Your legal team or counsel checks the relevant register entry, or, where none exists, the assignment and employment chain behind the asset.
- Identify the true rights holder. Compare what the licensor claimed against what the record actually shows, entry by entry.
- Notify the counterparty in writing. Set out the discrepancy and ask the licensor to confirm or correct their position within a stated period.
- Preserve payment records. Keep every invoice, receipt and correspondence in case fees need to be recovered or reallocated.
- Escalate to the true owner where identified. Open a direct conversation about ratification, a new licence, or damages, before litigation becomes the only route.
Who decides
Where the asset is on an EU register, the register keeper resolves disputes about who is recorded as proprietor or licensor; correcting the register is usually a precondition for anything else. Where entitlement rests on a contract chain rather than a register, the competent court applying the law of that contract decides who owned the right at the time the licence was granted. Evidence that carries weight is documentary: the chain of assignments, the employment or commissioning contract, and the register history where one exists. Statements about intent, without supporting paper, carry little weight on their own.
Branches
If title itself is unclear because a prior assignment was never recorded, the licensing question cannot be answered before ownership is; see When an assignment was never recorded explained.
If the licence came from a group company that received the team rather than the underlying rights during a restructuring, What to do first in this situation in practice follows the same first three steps, with extra attention to the intra-group transfer file.
If the claimed licence is a token that purports to carry usage rights rather than a conventional contract, When a token claims to carry a licence in a separate verification path applies before you rely on it commercially.
Limit
This page does not value the licence, does not calculate damages, and does not draft the notice to the counterparty. It sets out the order of checks so that nothing is signed or paid on top of an unresolved ownership question. Where delivery of legal work under this review involves outside processors, they are listed separately; see Subprocessors, including local delivery partners overview.
Verified
Checked against: Regulation (EU) 2017/1001 (EUTMR); Regulation (EU) No 1257/2012; Directive 2009/24/EC; Directive 96/9/EC. Review date: current at publication.
Related situations
A related first step arises when a co-owner will not sign at all rather than a non-owner signing wrongly; see When a co-owner refuses to sign: what to do.
FAQ
What is the first step when a licence is granted by a non-owner?
Stop relying on the licence and pull the register entry or contract chain behind the asset before taking any further commercial step.
Which deadline is already running?
Any limitation period set by the law governing the licence agreement runs from the moment the defect could reasonably have been discovered, not from when it is confirmed. Confirm the applicable period with counsel rather than assuming a standard length.
Who decides, and on what evidence?
The register keeper decides register disputes; the competent court decides contract-chain disputes. Both rely on documentary evidence — assignments, contracts and register history — over statements of intent.