When a licence must be recorded to be effective: what it costs to be wrong
Most licences bind the two parties who signed them without any filing at all. The problem sits elsewhere: an unrecorded licence may not bind a third party — a buyer of the right, a later licensee, or a creditor taking the right as security. For rights held on a register, effectiveness against outsiders depends on that entry. For rights with no register, it depends entirely on the contract and its evidence.
Which rights sit on a register — and which do not
The difference between "recorded" and "not recorded" only exists where a register exists in the first place. Copyright and database rights have no EU-level register at all, so the question of recording a licence simply does not arise for them.
| Right | Register at EU level? | Governing act | What recording does |
|---|---|---|---|
| EU trade mark | Yes — EUIPO register | Regulation (EU) 2017/1001 (EUTMR) | Makes the licence known to later applicants and rights holders |
| Unitary patent | Yes — unitary patent register | Regulation (EU) No 1257/2012 | Makes the licence known to later applicants and rights holders |
| Software copyright | No | Directive 2009/24/EC | Effect on third parties rests on the contract itself |
| Database right | No | Directive 96/9/EC | Effect on third parties rests on the contract itself |
Trade mark disputes over unrecorded rights often start with a conflicting filing rather than a licence dispute. If a competitor files A similar mark is filed in your class trade, the register entries already in place — including any recorded licence — decide who is heard first.
What the acts actually say
Regulation (EU) 2017/1001 (EUTMR) sets up the EU trade mark as a right administered on a central register, and licensing that right operates through entries on that same register. Regulation (EU) No 1257/2012 does the same for the unitary patent: the right and its register move together.
Directive 2009/24/EC and Directive 96/9/EC sit on different ground. Both protect the right itself — computer programs in one case, database contents in the other — without creating any register a licence could be entered on. Neither act says a licence must be recorded, because there is nothing to record it in.
What changes in practice
For a registered right, an unrecorded licence still works between licensor and licensee. What it may not survive is a transaction with someone outside that relationship: a sale of the right, a competing licence granted later, or a security interest taken over it. The register, not the private contract, is what a third party is expected to check.
For software copyright and database rights, there is no register to check. A third party dealing with the rights holder has to rely on representations, warranties and disclosure in the transaction documents. This is also why security taken over such rights is handled differently — the mechanics of When a right is pledged on-chain in practice follow the asset, not a public entry.
What to do
- Identify the right underlying the licence — trade mark, patent, copyright, or database right — before asking about recording at all.
- If the right sits on a register, the licensee requests recordal with the office that keeps that register, attaching the licence as supporting evidence.
- If the right has no register, the licensee secures dated, signed evidence of the licence's scope and duration instead.
- Where ownership of the underlying work is itself unclear, resolve that first — an unregistered claim to code is a separate problem from an unrecorded licence over it.
- Calendar every renewal, assignment, or restructuring of the licensor as a trigger to re-check whether the recordal or the evidence file is still current.
- Keep the recordal receipt or the signed evidence file with the corporate records, not only with outside counsel.
Who decides
For an EU trade mark or a unitary patent, the office administering the register decides the recordal application, on the basis of the licence document submitted. There is no fixed calendar deadline for filing it; the risk is priority, not a missed date — a competing entry made in the register before the licence is recorded can outrank it.
For software copyright or a database right, there is no office to apply to. A dispute over whether a third party is bound goes to a court, which decides on the contract's date, its scope, and how the parties actually behaved — not on any register entry, because none exists.
Two scenarios
If your licence covers an EU trade mark and a buyer is already negotiating for the brand, recordal is the priority, not the drafting. An unrecorded licence can be overridden by a sale that closes first.
If your licence covers source code protected only by copyright, the priority is the evidence file, not a filing. Where the underlying ownership is itself contested — for example When source code sits on a personal account: what shows how that plays out — no recordal step will fix a licence granted by someone who did not hold the right to grant it.
If the dispute is really about how much is owed under a licence rather than who it binds, that is a separate question, covered where Royalties are underreported IP licence what it costs to sets out the reporting side of the same agreement.
What this page does not cover
This page covers EU-level registers and EU-level directives only. National trade mark and patent registers outside these acts, and any national recordal fee, are outside its scope. It also does not draft the licence itself — recordal only protects a licence that is already sound on its own terms.
Verified
Regulation (EU) 2017/1001 (EUTMR) has applied since 1 October 2017. Regulation (EU) No 1257/2012 became applicable with the unitary patent system on 1 June 2023. Directive 2009/24/EC dates from 23 April 2009 as a codified version; Directive 96/9/EC has applied since 27 March 1996. Each source above is checked against its own date of entry into force, not against a separate review date claimed here. Background on how this file was assembled sits with The people behind the reports in practice.
Frequently asked questions
What is the first step when a licence must be recorded to be effective?
Confirm whether the underlying right sits on a register at all. If it is an EU trade mark or a unitary patent, file the recordal request with the office keeping that register, using the licence as the supporting document. If it is not, there is no filing step — move straight to securing dated evidence.
Which deadline is already running?
There is no fixed calendar deadline written into the recordal mechanism itself. The exposure is priority: from the moment a competing transaction is entered on the register, an unrecorded licence may already be too late to rely on against that entry.
Who decides, and on what evidence?
For a registered right, the office administering that register decides the recordal request, based on the licence document submitted. For an unregistered right such as software copyright or a database right, a court decides during a dispute, based on the contract's date, its scope, and the parties' actual conduct.