Chapter V - Assignment and Transmission
Section 38
Section 38: Transfer of registered marks
A registered trade mark may be assigned or transmitted with or without business goodwill and for all or some registered goods or services.
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Need advice on Section 38?
This article is for general information. Refer to the Trade Marks Act, 1999 official text for the official provisions. If you need professional advice for your situation, contact Bizeneed.
Statutory text
Bare law
Notwithstanding anything in any other law to the contrary, a registered trade mark shall, subject to the provisions of this Chapter, be assignable and transmissible, whether with or without the goodwill of the business concerned and in respect either of all the goods or services in respect of which the trade mark is registered or of some only of those goods or services.
Rule and business relevance
This flexibility is subject to the rest of the chapter, including confusion restrictions, goodwill-related advertising and registration of the new title.
Limits and related provisions
Do not treat permission for partial or goodwill-free transfer as removal of all conditions. Associated and certification marks have specific additional rules.
Hypothetical business example
Hypothetical example: A business sells a mark for one product line while retaining unrelated registered services. The parties test whether the proposed split satisfies the chapter’s restrictions.
Practical decision flow
Define the mark and goods or services being transferred.
Identify whether goodwill accompanies the transfer.
Check the chapter’s restrictions and title-registration process.
Applying the Act and current procedure
Read the statutory rule together with the applicable Trade Marks Rules, current Registry directions and the facts of the particular mark. Forms, fees and procedural requirements should be checked against their current official source before filing.
Practical checklist
Do
- Define the mark and goods or services being transferred.
- Identify whether goodwill accompanies the transfer.
- Check the chapter’s restrictions and title-registration process.
Avoid
- Do not treat permission for partial or goodwill-free transfer as removal of all conditions. Associated and certification marks have specific additional rules.
Glossary
- Partial assignment
- Transfer relating to some, rather than all, registered goods or services.
- Goodwill
- The business goodwill that may or may not accompany the transfer.
Frequently asked questions
Must goodwill always be transferred?
No, but assignments without it attract other requirements, including section 42.
Can only some registered goods be transferred?
Yes, subject to the chapter.
Is the transfer wholly unrestricted?
No. The provision expressly remains subject to the chapter.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026