Beyond the Will: How Trademark Rights Pass to Successors and Heirs

Introduction

In present times, when you think about property, intangible property is commonly included in such a definition. With the increase of commercial value of intellectual property, people are now extremely interested in the ownership of such property. Hence, they are now on par with tangible property. Therefore, the question arises, how are such properties, more specifically trademarks, distributed in the case of inheritance and succession and how effective is the current system in governing such distribution.

Testamentary Bequestment

The most common and practical method of distributing trademarks in the event of death, is by testamentary bequest or wills. Section - 57 to 191 of the Indian Succession Act, 1925, governs the creation, execution and validity of wills. This act, however, is not applicable for Muslims. While  wills are a good method of distributing trademarks in such an event, they are most frequently regarded as a bequest of “tangible property”. Hence, while making a will, extra consideration must be given to specify the kinds of property transferred through such a document. Non-specification may, but not necessarily, be interpreted as referring solely to tangible properties. For a will to validly confer ownership, the executor must record such transfer with the relevant trademark agency.

Christian Succession

Under Indian Succession Act, 1925, intestate succession for Christians are governed by Section 31 to 49 of the act. While, this Act does not specify “intellectual property” , and by extension “trademarks”, intestate succession of trademarks can be still said to be governed by the act as it would be classified as movable property and would be distributed under the act as such, under Section 5(2).

Hindu Succession

The Hindu Succession Act does not specify trademarks or intellectual property, hence leaving a grey area regarding inheritance and succession. While they have not been mentioned specifically in the act, Indian courts have interpreted the scope of the term “property” under the act to include intellectual property and hence by extension trademarks. Hence, intellectual property will be divided among the heirs under Section 8 to 13 of the Hindu Succession Act, for Hindu Male dying intestate, and Section 15 and 16, for Hindu Female dying intestate. Under Intestate succession of intellectual property, a problem which can commonly arise is the equal ownership among class 1 heirs. In the absence of specific laws governing the joint ownership of trademark conferred in such a manner, problems arise regarding management and use of the trademark among the heirs.

The distribution of trademarks gets a little more complicated in the event of coparcenary rights and when IP rights gets involved in the partition of joint family property. In the absence of specific laws dealing with IP rights in Joint Hindu Family property, it gets extremely difficult to distribute the management and ownership rights. A possible solution could be, providing certain economic rights to the joint family while maintaining the ownership and other basic rights with the creator, but this requires high levels of cooperation and patience among the members.

Muslim Succession

In the case of Muslim personal law, inheritance and succession of property in India is governed by the Muslim Personal Law (Shariat) Application Act, 1937. This Act was established with the intent of applying the Shariat in Muslim personal matters. This act, however, does not specifically deal with inheritance and succession in the relation to intellectual property. Hence, it is important to consider the different schools of thought under Islamic law for such distribution.

Now the question that arises is whether intellectual property can be considered “inheritable property” under the principles of Shariah. The answer to this question has been debated by many jurists of Islamic law. There are two different opinions in this regard. One which recognizes intellectual property, and one which does not recognize intellectual property.

Under the principles of Shariah, property amounts to anything that a man can acquire and possess. This would, hence, include corporeal and incorporeal property. 

According to the Hanafi School of thought, property only includes tangible and corporeal property and would not include incorporeal property, which expressly excludes trademarks.

The three other major schools of thought, that is, Malikis, Hambals and Shafis, recognize property to be anything that is beneficial and useful. Hence, incorporeal property, including intellectual property, can be classified as property as long as it is beneficial and not considered as haram. Hence, as per the majority of jurists under Islamic law, the heirs of the deceased have the right to take control of the IP of the deceased, which would include the ownership of trademarks owned by the deceased. This right would be conferred to them unless a will is left behind by the deceased, expressing an interest against such devolution. In practical application, there might occur several problems regarding the maintenance and ownership of such IP assets. Such problems would be best resolved by the experts in the field of inheritance under Islamic law.

Family Owned Trademarks

When a person uses a trademark for the running of a family-run business, this is commonly known as family owned trademarks. In this scenario, each member of the family has equal ownership of the said trademark. Hence, under the Doctrine of shared goodwill, each heir gets equal ownership and is protected. Hence, a single heir cannot get exclusive right of ownership over such trademarks.

In the case of Sri Krishna Sweets Private Ltd. vs. M. Murali, the dispute involved two brothers who claimed rights over the title “Sri Krishna Sweets”. Their father had initially started a restaurant known as “Sri Krishna Bhavan” in 1948. Later, the plaintiff started a business under the name “Sri Krishna Sweets” and obtained three trademarks related to the same under Class 30. The defendant argued that since their father started the business under the said name, both the brothers had equal right over the mark. The plaintiff argued that since their father did not distribute the rights over the mark, the defence of shared heritage cannot be accepted. The court referred to the fact that the plaintiff removed the tagline “Sweet Tradition since 1948" to detach the mark from their father’s legacy. The court denied the plaintiff the grant of injunction against the defendants, also owing to the fact that the objection had only been raised against the usage of the mark after approximately 20 years.

In Shri Ram Education Trust vs. SRF Foundation & Ors, family owned trademark disputes were treated as family disputes. The court held that one member cannot claim ownership of the trademark exclusively, unless there exists any document which shows otherwise. The mere fact that there was prior adoption by one family member cannot be used as the means of excluding the other heirs from the use and ownership of the said mark.

The heirs together can, however, draft a memorandum of understanding which would govern the division of rights of the trademark. This has been regarded as an acceptable method of division regarding family owned trademarks.

Conclusion

Hence, while most personal laws govern intellectual property and trademark in the same manner as normal property division in the case of inheritance and succession, there are differing situations that arise among some personal  laws. In the absence of specific laws governing inheritance and succession of intellectual property, there occurs confusion regarding practical distribution of rights to such property. While the courts have consistently held that all heirs hold equal rights over the intellectual property of the deceased, clarifications are needed regarding practical distribution and usage of such assets. While a memorandum of understanding can be made with the collective consent of all heirs, a need for specific laws guiding such scenarios are highlighted due to the gaps in  execution of such distribution.

Author: Roshni Rajesh, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

1. Prerna Khatri, ‘Dynamics of Intellectual Property in Inheritance Rights’ (2022) 5(5) International Journal of Law Management & Humanities 1344.

2. Atanda QM, ‘Intellectual Property Rights of a Deceased Muslim Vis-a-Vis the Question of Inheritance: A Perspective from the Sharīʿah’ (17 March 2024) SSRN https://ssrn.com/abstract=4762501 accessed 21 June 2026.

3. Vikrant Rana and Rima Majumdar, ‘Inheritance and Division of a Family Owned Trademark’ (Mondaq, 15 November 2022) accessed 21 June 2026.

4. Espie Angelica A de Leon, ‘The Inheritance of IP Rights’ (Asia IP, 29 February 2024) https://asiaiplaw.com/sector/copyright/the-inheritance-of-ip-rights accessed 21 June 2026.

5. Jaiswal S, ‘The Intangible Inheritance: Navigating the Crossroads of IP and Hindu Succession Law’ (NUJS Intellectual Property & Technology Laws Society, 1 November 2024) https://nujsiplaw.wordpress.com/2024/11/01/the-intangible-inheritance-navigating-the-crossroads-of-ip-and-hindu-succession-law/ accessed 21 June 2026.

6. Indian Succession Act 1925, ss 57–191.

7. Indian Succession Act 1925, ss 31–49.

8. Indian Succession Act 1925, s 5(2).

9. Hindu Succession Act 1956, ss 8–13.

10. Hindu Succession Act 1956, ss 15–16.

11. Muslim Personal Law (Shariat) Application Act 1937.

12. Sri Krishna Sweets (P) Ltd v M Murali (2017) 8 MLJ 588 (Mad).

13. Shri Ram Education Trust v SRF Foundation and Ors 2015 (2) MIPR 145 (Del).