When a licence must be recorded to be effective: what to do first
A licence normally binds the parties from the moment it is signed, with no filing required to make it work between them. For a narrow group of EU-level registered rights, the picture changes: the licence also needs to sit in the official register before it can be relied on against a third party. Miss that step, and a later buyer, secured lender or competing licensee who registers first, acting in good faith, can outrank a licence that actually predates their claim. This matters most at the points where money changes hands: a refinancing, a sale of the business, or a second licence granted over the same right. The first task is to work out whether the right in question carries a register at all, and, if it does, how much of the exposure window has already run.
Basis
EU trade marks are governed by Regulation (EU) 2017/1001 (EUTMR). The regulation lets either party enter a licence in the register kept by the European Union Intellectual Property Office, and that entry is what secures the licence against a third party who later acquires rights in the same mark in good faith. Unitary patents sit under a comparable structure, Regulation (EU) No 1257/2012, with their own register and their own recordal step. Two other acts that regularly come up in licensing work, Directive 2009/24/EC on computer programs and Directive 96/9/EC on databases, do not create any EU-level register for licences at all. For software copyright and for the database right, there is simply no recordal mechanism of this kind to complete at EU level, whatever the parties agree between themselves.
| Right | Governing act | EU-level register for the licence | Position if the licence is not recorded |
|---|---|---|---|
| EU trade mark | Regulation (EU) 2017/1001 (EUTMR) | Yes — the European Union Intellectual Property Office | Binds the parties; may not bind a good-faith third party who registers a competing claim first |
| Unitary patent | Regulation (EU) No 1257/2012 | Yes — the unitary patent register | Same exposure to a later good-faith registrant |
| Computer program copyright | Directive 2009/24/EC | No EU-level register | Effect follows national contract and property rules instead |
| Database right | Directive 96/9/EC | No EU-level register | Same: no EU recordal step applies |
Practical consequence
Until the entry is made, the risk sits mainly with the licensee. A licensee who has already paid, invested in the mark or built distribution around it can still lose priority to someone who files a competing claim first. The exposure does not stay fixed. It grows with every month the licence remains unrecorded, because the pool of parties who could file ahead of it keeps widening. A licensor who has granted several licences over the same right faces a mirror problem: an unrecorded grant leaves room for a dispute over which licensee actually holds priority. The same gap can surface during due diligence, when a buyer or lender asks for proof that a licence is enforceable against the world, not only against the licensor.
What to do first
- Confirm which right the licence covers, and check whether that right carries an EU-level register at all.
- Pull the licence deed and note the date it was signed or took effect, since the exposure runs from that date.
- Ask counsel or the registered agent to prepare the recordal request, with the deed extract attached in the form the office expects.
- File the request with the European Union Intellectual Property Office or the unitary patent register, whichever applies to the right in question.
- Keep the confirmation of entry with the licence file once it comes back, as the proof of enforceability against third parties.
- Tell the counterparty once the entry is confirmed, so both sides work from the same record going forward.
Who decides
The relevant office records the licence on request. It does not rule on the underlying commercial dispute between licensor and licensee, and it does not check whether the royalty or the scope of the grant is fair. Where two parties both claim priority over the same right, the European Union Intellectual Property Office's Boards of Appeal, or the competent national court, settles the conflict. The decision turns on who filed first and whether that party acted in good faith, not on who has the stronger commercial argument.
Forks
If the licensed right is an EU trade mark, the recordal route runs through the EUIPO register under the EUTMR. That same register decides priority disputes over the mark itself, a separate but related situation covered in A similar mark is filed in your class trade.
If the licence covers software rather than a registered mark, recordal in this sense does not apply at all. The exposure there tends to surface instead as a dispute over who owns the code in the first place, before any licence over it can even be assessed. That situation is addressed separately in When a contractor claims ownership of the code: what.
If the arrangement is structured as a tokenised right rather than a conventional register entry, the underlying question does not go away. It becomes whether the token actually carries the licence it claims to carry, which is a question of proof rather than of filing a form. That is covered in When a token claims to carry a licence explained.
Related situations
A licence that is properly recorded still leaves room for disputes over how it is performed day to day. Underreported royalties under an otherwise valid, recorded licence are a distinct problem, and the first steps there differ from the ones set out above. That situation is covered separately in Royalties are underreported IP licence.
Limit
This page does not cover the fee, form or processing time for a recordal filing at any particular office. Those details sit with the office itself, they change independently of the regulation, and stating them here would go stale quickly. This page also does not settle a dispute over the licence's substantive terms once recordal is complete; that sits with the parties' contract and, if it reaches a dispute, with the forum named in that contract. Finally, it does not extend to rights where no EU-level register exists at all — for those, the question of effect against third parties is a national-law question outside this page.
Verified
Checked directly against the official texts: Regulation (EU) 2017/1001 (EUTMR); Regulation (EU) No 1257/2012; Directive 2009/24/EC; Directive 96/9/EC. No case-law and no national implementing act is cited on this page. For how this site handles visitor data separately from the legal content above, see Cookies and what is switched off by default step.
FAQ
What is the first step when a licence must be recorded to be effective?
Work out which right the licence covers and whether that right carries an EU-level register at all. Under the acts covered here, only EU trade marks and unitary patents do; software copyright and database rights do not.
Which deadline is already running?
None of the acts covered here fix a set number of days for recordal. The exposure instead runs from the date the licence takes effect and keeps growing until the entry is made, so recording promptly is what closes the window, rather than any fixed statutory deadline.
Who decides, and on what evidence?
The register office makes the entry on request without ruling on the commercial dispute. A priority conflict between competing claims goes to the Boards of Appeal or to the competent court, decided on filing date and good faith rather than on the merits of the underlying deal.