Chapter V - Assignment and Transmission
Section 39
Section 39: Transfer of unregistered marks
An unregistered trade mark may be assigned or transmitted with or without business goodwill.
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Need advice on Section 39?
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
An unregistered trade mark may be assigned or transmitted with or without the goodwill of the business concerned.
Rule and business relevance
Lack of registration does not itself prevent a transfer of the mark. The actual unregistered right and the transfer’s scope still need evidence.
Limits and related provisions
A transfer does not turn the mark into a registered mark or prove its rights against all third parties. The surrounding assignment restrictions and section 42 can still matter.
Hypothetical business example
Hypothetical example: A business sells an established but unregistered brand. The buyer checks its use history and the transfer documentation rather than expecting a registration certificate to arise from the sale.
Practical decision flow
Identify the unregistered mark and evidence of its use or rights.
Specify whether goodwill is included.
Review applicable transfer conditions and any separate registration application.
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
- Identify the unregistered mark and evidence of its use or rights.
- Specify whether goodwill is included.
- Review applicable transfer conditions and any separate registration application.
Avoid
- A transfer does not turn the mark into a registered mark or prove its rights against all third parties. The surrounding assignment restrictions and section 42 can still matter.
Glossary
- Unregistered mark
- A mark not registered under the Act.
- Transmission
- The statutory category of devolution distinct from assignment, requiring its applicable basis.
Frequently asked questions
Is registration essential for any transfer?
No. Section 39 expressly permits transfer of an unregistered mark.
Does assignment itself register the mark?
No. Registration is a separate process.
Can goodwill be excluded?
The section permits that, subject to relevant surrounding requirements.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026