Managing trademarks in the BEPS environment – the shifting tax landscape

By Karen Butcher and Bart Bassett

The international tax regime for IP rights is shifting. Multinational companies should revisit their internal ownership and licensing structures to ensure that they meet guidance forthcoming from the Organisation for Economic Cooperation and Development

The structuring of intellectual property and other intangible property rights is a critical business consideration for any multinational group, particularly with respect to popular global brands. A global brand can be a crucial factor driving profitability for any product and the underlying intellectual property associated with such brands can thus account for a high percentage of corporate value. Multinational groups typically exercise great care in deciding how to protect the intellectual property associated with any global brand, considering factors such as maximising legal IP protection (including the availability of benefits through international treaties), planning IP litigation strategy (including the availability of remedies) and matching the approach to business objectives. All of these factor into the decision of where to legally hold title to such rights and how to structure licensing of IP rights to related and unrelated parties. Although business and IP considerations affect the ownership and licensing of IP rights within a multinational group, tax issues – such as transfer pricing and withholding tax – are ever present and frequently constitute material exposures for any multinational group.

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