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Trade Marks and Other Intellectual Property

Page updated 19 June 2015

The Treasury on behalf of the Crown can transfer trade marks held in the name of a struck off company.  Before doing so we must be satisfied that the trade mark has vested in the Crown and that there will be no claims against the Crown resulting from the transfer.

To this end we require the following:

  1. A statutory declaration by a director of the struck off company ("the Company") (or someone else associated with the Company) at the time the Company was struck off which includes:

    1.1 details of the circumstances surrounding the creation of the trade mark;

    1.2 details of the circumstances surrounding the striking off of the Company without first dealing with the trade mark; and

    1.3 a declaration that the Company held the trade mark in its own right and not on trust for any other body corporate or any other person.

    If you are unable to locate anyone associated with the Company at the time it was struck off we may accept a statutory declaration from someone else with knowledge of the matter.  However, their statutory declaration will also need to include details of the steps taken to contact the former Company.

  2. An application requesting the Crown deal with the matter pursuant to the relevant section of the Companies Act 1993 or Companies Act 1955, together with an indemnity from the applicant in favour of the Crown in respect of all or any liability that may be incurred by the Crown in respect of actions taken in obtaining a transfer of the trade mark.

  3. A copy of the trade mark registered with the Intellectual Property Office of New Zealand (IPONZ).

  4. Evidence that no other person who may claim an interest in the trade mark may be prejudiced by the Crown transferring it to the applicant. This might include written consents from each person who was a director of, or shareholder in, the Company at the time the Company was struck off, consenting to the transfer of the trade mark to the applicant.  If the Company was struck off following a liquidation we may also require evidence from the liquidator detailing why the trade mark wasn't dealt with during the liquidation.

  5. Extracts from the Companies Office for the Company showing when it was registered and when it was struck off.

  6. Your undertaking to pay our costs (approximately $400) and to reimburse any advertising costs and other disbursements we need to incur in connection with this matter. We are entitled to recover our costs pursuant to section 75(2) of the Public Finance Act 1989.

Provided that we find the above documents to be satisfactory we will execute an application to IPONZ to have the Crown registered as owner of the trade mark together with a deed of assignment of the trade mark to the applicant. These documents will be forwarded to you and you will be responsible for filing them with IPONZ.

As an alternative to seeking a transfer of the trade mark by the Crown you may also wish to consider an application to restore the Company to the register.  In some circumstances this can be a faster and cheaper process than seeking a transfer.  On restoration the trade mark and any other property of the company vest back in the company as if it had not been struck off the register.

Template forms of the statutory declaration and the application and indemnity are available below. 
We encourage applicants to provide draft documentation to the Treasury's Legal Team for comment prior to issuing final documentation. This allows the Treasury's Legal Team to identify:

  • any issues with documentation, and/or
  • any other documents that we require to process the application.

 

Templates

Statutory Declaration - Trade Mark (Word, 30KB)

Application and Indemnity - Trade Mark (Word, 33KB)

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