Bona vacantia (“goods without an owner”) is a legal concept of goods which are in limbo or which belong to nobody. In the UK if property is deemed ownerless then it passes to the Crown. By definition these goods can include assets of dissolved companies and other unincorporated bodies which were not removed prior to dissolution, as well as assets from the estates of the deceased without heirs or inheritors or where a will has not been made. The assets of dissolved companies pass automatically to the Crown.

In England & Wales the Bona Vacantia Division of the Government Legal Department (formerly the Treasury Solicitor’s Department) is responsible on behalf of the Crown for dealing with bona vacantia assets. Assets based in Cornwall may pass to the Duchy of Cornwall. In Scotland, the Queen’s and Lord Treasurer’s Remembrancer deals with bona vacantia assets.

Given the above, it is important to remember to remove intellectual property assets from a corporate or unincorporated body prior to winding up. Whilst bona vacantia property can be assigned from the Crown after the event, the Crown is not obliged to sell it and may sell it for full market value; the directors of a company who forget to remove trade marks, patents and designs from their company prior to its winding up may find themselves having to pay a substantial sum to recover “their” property. Further, the Crown gives no form of title guarantee when disposing of the property; the risk of buying bona vacantia property resides with the purchaser. This may be relevant, for example, when a third party has acquired a conflicting interest in the registered trade mark and in ignorance of the bona vacantia transfer. See Section 25 (3) of the UK’s Trade Marks Act 1994.

It may be possible to restore a company post dissolution in order to avoid a bona vacantia situation.

A contract is an agreement, whether written or spoken, which is intended to be enforceable at law.  So long as the agreement contains the following it will be regarded as valid at law:

1. An offer and an acceptance
2. A statement that the parties intend to create a binding relationship
3. Consideration in some form in respect of the promise made
4. Legally capable parties
5. Genuine consent of the parties
6. That the agreement is legal

A breach occurs when one or more of the parties does not honour the commitment agreed in the relationship.

Examples of breaches could be:

• Failure to perform on time
• Failure to perform sufficiently
• Failure to perform as agreed
• Failure to perform at all
• Failure to pay enough, on time, or at all

A breach can be minor, material, fundamental or anticipatory.

• Minor: The contract has been performed substantially but a corner has been cut or performance has fallen short of what has been promised. The party disadvantaged by the minor breach can sue for actual damages only.

• Material: The breach is substantive and to the extent that permits the party disadvantaged by the breach to sue for damages or alternatively compel performance.

• Fundamental: The breach is so significant that the party aggrieved can terminate the contract and sue for damages.

• Anticipatory: The breach is inevitable by reason of the contracting party not being able to deliver on time, or sufficiently. The party aggrieved may sue for damages without waiting for the breach to occur.

Examples of breaches of contracts involving intellectual property would be:

• A trade mark licensee uses a trade mark format other than that agreed

• A patent licensee fails to pay sufficient royalties

• The owner of a registered trade mark fails to pay a renewal fee, thereby exposing a licensee to infringement proceedings