When a sublicence appears without consent: what to do first

When a licensee grants rights it was never authorised to grant, the sublicence is provisionally ineffective against you, but nothing about the situation resolves on its own. Your first move is to secure the head licence, the sublicence itself if you can obtain a copy, and every dated communication that shows when the grant happened — before you contact either the licensee or the sublicensee.

What the licence and the applicable regime say

Consent to sublicense is, first and foremost, a matter of what your own agreement says. European Union law does not set one uniform sublicensing rule across every kind of intellectual property right. The applicable framework depends on what was licensed in the first place.

None of these instruments overrides the wording of your own contract. They frame the right; the contract frames the consent. If the head licence never records who granted the underlying right to the licensee in the first place, the whole consent question sits on unstable ground before it is even reached. That gap is common where the original creator was a freelancer — see When freelancers signed nothing: what to do first.

What changes in practice

A sublicence granted without the required consent usually does not bind you, the original licensor. It does not disappear on its own, though. The third-party sublicensee may be acting in good faith, may already be using the right commercially, and may have paid the licensee a sum for something the licensee could not actually grant. Untangling that is a separate exercise from stopping the use.

Where the licensed right is recorded or referenced as a tokenised right, and the work that anchors the registry entry is later withdrawn or altered, the exposure compounds rather than resolves — see When the referenced work is removed in detail. The two problems, missing consent and a missing reference point, are best kept apart when you plan the first response.

The clock that matters most at this stage is rarely a statutory one. It is usually the notice or cure period written into your own licence agreement, and it starts running from the moment you had actual knowledge of the sublicence, not from the moment you decide to act on it.

What to do first

1. You pull the head licence and check, clause by clause, whether sublicensing needed prior written consent or only advance notice.
2. You or your counsel collect every document showing when the sublicence was granted, on what terms, and to whom.
3. Your counsel sends the licensee a written notice recording the breach and reserving your rights, without yet threatening termination.
4. You decide, with advice, whether the third-party sublicensee should be contacted before the licensee has had a chance to respond.
5. Your counsel checks whether the licence or the right itself required the sublicence to be recorded with a registry, and whether that step was skipped.
6. You hold off on any public statement or takedown request until the notice period above has actually run.

Who decides

Nobody decides this for you at the outset, and no regulator intervenes in a private sublicensing dispute of this kind. Resolution runs through whatever forum your licence agreement names — arbitration, a named court, or mediation. The decision-maker there works from three things: the wording of the head licence, the timeline of communications, and any record of consent, or its absence, between the parties.

Two situations that change the answer

If the licensed right is an EU trade mark and the sublicensee is already trading under it on a marketplace, the consent question and the marketplace question run on separate tracks. Each needs its own response, on its own timeline — see A marketplace listing is taken down trade mark.

If the licence is silent on sublicensing rather than expressly prohibiting it, the question shifts. You then need to establish whether the head licence was exclusive or non-exclusive, and whether silence under the governing law of that contract is read as permission or as a bar. That reading depends on the contract's own governing-law clause, not on this page.

What this page does not resolve

This page does not calculate damages, does not draft the notice letter, and does not tell you whether termination is available on your specific wording. Those steps depend on the exact terms of the licence and on the law governing the contract, neither of which fits a general situation page. They belong to a review of the file itself.

Verified

Checked against the current text of the instruments listed above. Copies of the licence, the sublicence, and the communications you gather at this stage are handled under our own file rules for extracts and retained copies — see Retention: the report, the extracts and our copy step.

Related publications

The provenance question behind a sublicence often traces back to how the underlying right entered the deal at all — see What to do first in this situation in detail. Reading the two situations together, before you send any notice, usually sharpens the first response rather than delaying it.

FAQ

What is the first step when a sublicence appears without consent?

Secure the head licence, the sublicence text if you can obtain it, and every dated communication, before you contact either party.

Which deadline is already running?

The notice or cure period set out in your own licence agreement, counted from the moment you first had actual knowledge of the sublicence.

Who decides, and on what evidence?

The forum named in your licence agreement — arbitration, a named court, or mediation — decides on the wording of the licence and the timeline of communications between the parties.

— Marge Ojasalu, AURELIS