Should I Take a Mortgage Over a Valuable Trade Mark?
Trade marks are quickly becoming a valuable asset of many businesses operating in Australia. In 2018-19 alone, intellectual property (IP) assets made up $1.377 billion in Australia’s exports alone. The increasing value of trade marks has allowed many businesses to use their IP as security when applying for mortgages. This article outlines:
- which trade marks you can use as collateral to secure a mortgage;
- factors you should consider when taking a mortgage over your trade mark; and
- the process of taking a mortgage over your trade mark.
A trade mark owner who wishes to use their trade mark as collateral in obtaining a mortgage is the debtor. A debtor can grant a creditor (usually a bank or mortgage lender) a security interest in their registered trade mark. If the trade mark owner fails to make mortgage repayments to the creditor, the creditor has a legal interest in the trade mark and can remove or appropriate the trade mark from the owner’s possession.
Under the Trade Marks Act, you can use your licence to use a registered trade mark as collateral for obtaining a mortgage. For example, a franchisee of a fast food company would likely have the license to use the franchisor’s logo. If the licensing agreement permits, the franchisee may use the licence as collateral for obtaining a mortgage.
Factors to Consider
You should note that taking a mortgage over a trade mark can be a challenging task. Firstly, the value of a trade mark is not a concrete sum. Rather, the value of a trade mark will represent different values in different settings since the value of a trade mark is closely tied with the goodwill of your business.
For example, if your newly registered trade mark has not gained a reputation in the market, it may be less valuable than a trade mark that has long been recognisable and identifiable.
Before applying for a mortgage, you should consider whether your trade mark is valuable for use as collateral.
Secondly, you will likely require specialist expertise when it comes to valuing your trade mark. Whilst specialists can only provide you with an estimate of the value of your trade mark, they are well-equipped to use suitable methods of IP valuation to provide you with a close estimate of its value. The different methods of IP valuation that the specialist is likely to perform include the:
- income method, where a specialist values your trade mark based on the amount of income it is expected to generate;
- market method, where a specialist values your trade mark based on the price paid for the sale of a similar trade mark; or
- cost method, where a specialist values your trade mark by calculating the cost of a similar trade mark.
Even so, whilst most banks and mortgage lenders accept mortgage applications over trade marks, their specialist expertise also limits them. You may have to seek out banks or other lenders who are willing to approve mortgage applications with trade marks as collateral.
Process of Using Trade Marks as Collateral
Suppose a bank or other lender accepts your mortgage application. You will likely have to register the interest in the Personal Property Securities Register (PPSR). The PPSR is a national register that trade mark owners can voluntarily use to register a claimed security interest like a mortgage in their trade marks.
Whilst registration is voluntary, it is a useful way of clearly stating who has an interest in your trade marks especially in the instance where any trade mark dispute arises. The application to record a claim of interest requires no fee and requires the following information:
- your personal details as the trade mark owner;
- the details of the claimant (in this instance, the bank or lender); and
- mortgage document to support the claim.
Since trade marks can be a valuable asset that your business owns, you can use them as collateral when applying for a mortgage. However, you should be aware that this depends on the value of your trade mark. The value of a trade mark is usually associated with the goodwill of a business. However, it can differ depending on changing circumstances. You will likely need to engage a specialist to value your trade mark to support your mortgage application. If your mortgage application is accepted, you can register the bank’s claim or the lender’s interest with the PPSR If you need help with taking a mortgage over your trade mark, our experienced trade mark lawyers can assist. Call us on 1300 657 423 or complete the form on this page.
Frequently Asked Questions
There are no strict requirements that a particular person values your IP. However, it would be best to contact a specialist in the field to receive a proper estimate of your IP’s value.
This depends on how many IP assets your business owns or uses. You can minimise the time it takes to value your trade mark by updating your information on your trade mark, including its date of registration and any licences that you have granted.