Federal law does not preempt state law, and the financing statement of a federal trademark should be filed with the secretary of state. With that said, the US Patent and Trademark office (“USPTO“) provides a method for recording a security interest in trademarks and patents. Here are some things to keep in mind.
- Once you have a judgement in FL, consider the Statute of Limitations, which is 20 years to collect a judgement in FL.
- Register the judgement in the district in which the trademark is located, and obtain a preservation order from the court. The court must be able to exercise jurisdiction over the trademark.
- Register a security interest in the trademark with the USPTO and the state’s secretary of state. You want to avoid any claim that the security interest was not properly recorded.
- If you were not able to obtain a security interest in the trademark, but you obtained a judgment, you can force the liquidation of the trademark through the appointment of a receiver, which is governed by each state’s law. The order appointing the receiver and setting forth its duties should specifically reference the duty to acquire and sell all intellectual property including trademarks.
- FL requires the recording of a certified copy of a judgment in the public records of the county where the debtor owns the property.
- Check the state statute to see if it allows the court to order losing party to transfer ownership of the trademark to the client. If so, ask the court to transfer the trademark to the client; if not, the court can appoint a receiver to take possession of the trademark rather than have them transferred directly to your client.
- Before you can levy on someone’s property, you must get court permission in the form of a writ of execution, writ of garnishment, writ of attachment, or similar titled document.
- In most states, you can get your writ from the small claims court clerk.
- Once the court issues your writ, take or send it to the sheriff, marshal or constable in the county where the assets are located. You are to give the officer the following:
- The original writ and one to three or more copies, depending on the requirements of the sheriff, marshal, or constable. Keep a copy of the writ for your files.
- The required fees for collecting the trademark.
- Instructions on what the type of asset to collect and its location(s). A letter is acceptable.
- Don’t delay in serving the writ of execution because they usually expire if it is not served on the debtor by the sheriff within a certain number of days of its issuance.
- Check sunbiz.org to see if there are any judgment liens filed under the debtor
- Check for creditors. www.floridaucc.com
- if applicable, notify creditors and anyone who might have a judgment lien against the debtor.
If anything that was mentioned above is unclear or resonates with you or someone you know, EPGD Business Law is here to help. Our team is available to speak to you when you’re ready. We can be reached by email or phone call. (786) 837-6787 / info@epgdlaw.com
*Disclaimer: This blog post is not intended to be legal advise. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*
