When the deal transfers rights that were never owned: what to do first

When a licence or assignment purports to transfer intellectual property the counterparty never held, the deal itself does not create the missing title. Stop relying on the specific grant in question, notify the counterparty in writing, and identify the true rights holder before any further use, sub-licensing, or payment continues under that clause.

Basis

The right allegedly transferred determines which framework applies, and which record settles who actually holds it.

Ownership follows national law, not the wording of the licence. For software, the national law implementing Directive 2009/24/EC typically vests the right in the actual author or, where the work was made in employment, in the employer. For a database structure, the equivalent question sits under the national law implementing Directive 96/9/EC. For a registered EU trade mark, the applicant recorded under Regulation (EU) 2017/1001 is presumed to hold the right, subject to correction by the register.

Where the missing right is a domain rather than a registered mark, the analysis runs on different footing: see A domain mirrors your brand trade mark.

Where the code in question originated on a developer's personal account rather than a corporate one, the chain-of-title question follows a separate path: see When source code sits on a personal account in.

Practical consequence

If the seller or licensor never held the right, three consequences follow at once. The clause granting that specific right is void for want of title, regardless of what the rest of the contract states. Any sub-licence you issued downstream carries the same defect and exposes you to your own sub-licensees. Continued use after you identify the gap can turn a contractual dispute into an infringement claim from the true rights holder, who was never a party to your agreement.

What to do first

1. Freeze reliance. Pause use, sub-licensing, and any payment tied specifically to the disputed right, without terminating the whole agreement yet.
2. Pull the record. For a registered right, check the relevant public register. For software or a database, request the assignment chain and employment records from the counterparty.
3. Notify in writing. State the specific right, the gap in title, and a deadline for the counterparty to cure or replace the grant.
4. Note the running deadline. Warranty and indemnity clauses in your own agreement usually set a notice period that starts on discovery, not on signature.
5. Contact the true holder, once identified, before any further negotiation with the counterparty continues.
6. Record the discovery date. It anchors the limitation period on any indemnity claim you may later bring.

Who decides

The question of who actually held the right sits with whoever maintains the record of that right, not with the parties to your contract. For a registered EU trade mark, the EUIPO register settles the recorded proprietor, subject to challenge through the office's own procedure. For software and database rights, no equivalent public register exists; the chain of title is proved through employment records and prior assignment agreements, and unresolved disputes go to the competent national court.

If your situation differs

If the right in question is a patent rather than software or a mark, registration sits with the European Patent Office for a unitary patent, or with the relevant national office for a national one; neither register is searched the same way as the EUIPO trade mark register.

If the counterparty is part of your own corporate group, an internal ratification can sometimes cure the defect without a third-party claim, but only once the true holder within the group is confirmed in writing.

If the disputed right sits inside a tokenised collection rather than a conventional licence, the provenance question compounds with marketplace and platform terms: see When a marketplace delists the collection in detail.

What this page does not resolve

This page does not establish who actually owns the disputed right. That determination depends on facts outside any registry entry: employment history, prior assignments, and, for software, the actual record of authorship. It does not quantify a claim or a settlement range. Where the answer depends on a public register, we name the register; where it depends on private records, we name the document to request.

Verified

Checked against the official sources listed against each instrument in the table above. Where a question turns on a national implementing act rather than the directive itself, this page says so rather than substituting the directive text for a national rule. For how delivery of matter work is organised across support functions, see Subprocessors, including local delivery partners explained.

Related publications

A related provenance question arises when a change of control in the counterparty's own structure triggers termination rather than a defect in title: see When a change of control triggers termination in practice.

FAQ

What is the first step when the deal transfers rights that were never owned?

Stop relying on the specific grant in question. Pause use, sub-licensing, and payment tied to that right, then notify the counterparty in writing and request the assignment or licence document proving title.

Which deadline is already running?

The notice period tied to any warranty or indemnity clause in your own agreement. It typically starts on the day you discovered the defect, not on the date you signed, so document the discovery date immediately.

Who decides, and on what evidence?

For a registered EU trade mark, the EUIPO register settles the recorded proprietor, subject to challenge. For software and database rights, the chain of title is proved through employment records and prior assignment agreements, and disputes go to the competent national court.

— Marge Ojasalu, AURELIS