Although a registered mark can receive protection and an unregistered mark cannot, there has been confusion regarding whether marks that are subject to a pending registration application are eligible to be protected under the law. The respondent -- while noting that the application was assigned -- nevertheless argued that the intent of the parties, when executing the assignment, was to create a security interest; that the prohibition against assigning intent-to-use applications is to prevent trafficking; that respondent retained a bona fide intention to use the mark; that inasmuch as the parties intended to create a security interest, the activity which Section 10 was designed to prohibit was not present; that the intent of the parties, the form of the "assignment" document, should prevail; and that, accordingly, cancellation of the registration was inappropriate.The following article looks at this predicament and the critical legal impact of the timing of litigation. §1060, prohibits the assignment of an intent-to-use trademark application before a party has filed an acceptable amendment to declare use or statement of use of the mark (except to the successor to the business of the trademark applicant, or to the successor to that portion of the business with which the trademark will be used). Moreover, the respondent pointed out that Section 10 of the Trademark Act does not stipulate the penalty for a premature assignment of an intent-to-use application, and argued that in this case -- where the parties were not engaged in trafficking -- the penalty should entail invalidating that assignment not canceling the trademark registration.This exception “ confined to wrongs done to the person, the reputation, or the feelings of the injured party, and to contracts of a purely personal nature, like promises of marriage.”[vii] The Washington court has also held that a tort claim for damage to property is assignable.[viii] The Maryland court explained the rule and held that a chose in action, whether arising in tort or ex contractu, is generally assignable.
Trademark law protects the public by protecting a company's ability to clearly identify itself through the use of unique marks on their products.
However, the infringer may not have the right to challenge the patent in this way if the party asserting infringement clearly lacks ownership in the asserted patents.
In g, the Federal Circuit found that a federal court did not have jurisdiction to hear and decide patent claims that depended on a court invalidating an assignment agreement because the assignor had no patent rights unless and until it succeeded on its state law claims.
Therefore, any entity that is entitled to enforce the debt obligation enjoys the security of the deed of trust, regardless of whether there has been an assignment of the deed of trust.
Furthermore, the Court in ruled that under Massachusetts law banks and other holders of mortgage loans are legally entitled to obtain assignments of the mortgages based on their ownership of the underlying debt obligations.First Data and Bisignano appealed this decision, arguing that the court should consider the patent ownership issue when addressing the invalidity and noninfringement issues, rather than making the patent ownership issue a jurisdictional prerequisite for deciding the invalidity and noninfringement claims.The court disagreed, finding that a patent infringement suit between the parties would not be ripe to be decided by a federal court unless and until Inselberg and Interactive were successful in recovering ownership of the asserted patents they had assigned.The Trademark Act Designed to prevent "trafficking" in trademarks, Section 10 of the Trademark Act, 15 U. The act further requires that the business, or the portion thereof assigned, must be ongoing and existing. The board, however, rejected the respondent's arguments.