The purchaser was acquiring a high end, design led, luxury boutique hotel in central London. Part of the hotel’s appeal was its distinctive branding and design, having been created by a renowned hotel designer.

Initially there was limited disclosure by the seller of the creation and protection of the branding and design save for providing a list of registered trade marks. At the 11th hour of the transaction numerous disclosures filled in a complicated narrative and highlighted gaps in agreements to transfer key IP assets. The purchaser wanted an indemnity for losses arising out of any claims that could be made by the designer, including claims over ownership to and infringement of their intellectual property rights.

A purchaser of a luxury boutique hotel received limited disclosure concerning the ownership of brand and design assets created by a single designer and was concerned about the risk of challenges to ownership and infringement allegations by the designer post-closing.

We reviewed the trade mark registries to assess the assets to be transferred to the purchaser and mapped out the gaps in proof of ownership and potentially defective assignments concerning unregistered IP assets. We also carried out a risk mapping exercise concerning the designer and their history, including trade mark and design right filings and past disputes.

In addition to the coverage under a standard W&I policy, we offered contingent coverage for an intellectual property indemnity requested by the purchaser to cover up to £2m of losses, costs and expenses arising out of a challenge to the buyer’s ownership of IP assets, namely copyright and design rights subsisting in the branding and aspects of the hotel and its fixtures’ design and allegations of IP infringement.