Almost any business has in its inventory the intellectual component, but few uses it, for example, in order to save tax or as a tool possessory control. Especially few that part of their assets are protected. First define what is an intellectual asset of the business.
As you can see from the examples, in almost any business there are objects of intellectual property. Registration of rights to these objects can be one of the key elements of business security, and not only property, but also tax, and management. We denote the main features that should be taken into account.
The opportunity of obtaining income from a business in the form of royalties (license payments), which, for example, may be an alternative to dividend payments to the owner of the business. In this case, the registration of intellectual property object must be made to the owner (in some cases mandatory status of an individual entrepreneur). For the regulatory bodies warily refer to the situation when the company disposes of its trademark, and after a short period of time signs a license agreement on the right to use them for a substantial license fee.
All transactions on the transfer of ownership of the trademarks and other registered intellectual property is recorded at Rospatent, including the contract PRICE. To track the chain of owners is not difficult. Therefore, the cost of intellectual property under the contract on its disposal should be commensurate with its real business value and size of future royalty payments. You cannot pass an object via the notional value of 100,000 rubles, then the listing for its use under a license agreement million in a month.
In addition, if before royalty was one of the safest ways to generate income and tax optimization, this method should be approached with due justification of the business purpose of such payments for the company. Along with one of the possible sources of income to the business owner, licence fees payable to the Custodian, facilitate the implementation and financing of the acquisition of the property. Thus, in contrast to, for example, from the lease (the market value of which is easily verified), the overestimation of the size of royalty payments is almost impossible to prove.
This is due to the complexity of evaluating both the value of the intangible asset and its real value for the company-user. Moreover, the procedure for determining the amount of the payments can be varied. The percentage of the companys revenue, a firm sum of money, one-time payment, etc. In terms of formalization of relations between the owner of IP object and other entities of the company group, given the characteristics of each object of intellectual property and the agreement for its use, you always need to pay attention to the following questions.
Given that the use of a patent is also subject to state registration, and the patent itself rarely guarantees protection from unauthorized usage, the choice of business often stops at the design of the objects in the form of know-how. Moreover, not every unique technology or methodology to be used in business, can be patented, but the issue as know-how may.
The question of who will be the owner of IP is a key. It is particularly acute in business with several partners. Order joint ownership of the results of intellectual activity devoted to the separate provision of the civil code.
So, p. 2 St. 1229 of the code assumes that the exclusive right to result of intellectual activity or means of individualization (except the exclusive rights to the brand name) can belong to one person or to several persons jointly. All questions regarding the use of the object, obtaining and distribution of income from it, etc. Resolved by right holders through a separate agreement (p.
3 St. 1229 OF THE CIVIL CODE). By analogy with common ownership of property determination of the ownership, use and disposition of intellectual property farmed out by the owners. This allows, in particular, to guarantee the full scope of rights for results of intellectual activities of each of the co-owners, and each to their own, assigned to it a share of the income of use of IP.
However, this rule is not for all objects. To register a trademark, for example, two IP-owners is currently impossible (except for the registration of collective trademark). The Agency explains failures of such registration that a trademark is designed to individualize goods, products, services, and apparently, according to the logic of the Agency, to produce such goods can only a certain unique subject. Registration shared the same trademark is allowed only as a collective, however, this imposes on the owners of such sign significant limitations. A collective trademark cannot be transferred for use under a license agreement (which makes no sense to register it to the owners, who then passed the sign for use by the operating companies), such a mark also can not be alienated (p.
2 St. 1510 OF THE CIVIL CODE). Thus, to secure joint rights of business owners to the trademark directly, so that later it can be sent to a third party for the use, currently not. Out of the described situation in the following ways.
Along with intangible assets that can be accounted on the balance, and sometimes even touch, often more important is not the result of intellectual activity, and intellectual core of the business as a set of skills, employees etc, which has been developing equipment of various technological devices, performs the design work. His isolation from the operating managers of the business useful in order to protect that part of the company is its uniqueness, and in order to optimize tax revenues. With the separation of the Intellectual level of the business (by, for example, the creation of the company of developers, designers, constructors) achieves the following objectives.
However, the allocation of such intellectual center of the actual all the above issues were addressed in a separation of the assets. In addition, the separation of one entity and the employees and activities of the development center, and the results of their work in the form of an intangible asset guarantee the absence of claims of the tax authority that the entity owns the IP and gets royalties for its use, because he (his staff) to such an object is created. As you can see, issues to be addressed during the separation of the intellectual level quite a lot, however, a detailed approach allows not only to protect valuable assets from loss, but to get a significant tax effect.
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