To be in love is a great thing. But those who are in a relationship or are married should not be blinded by love and allow themselves to remain clueless about intellectual property rights in connection to relationship property, whether laws and regulations are clear or not, whether they stay in love or fall out of love.

In 2017, New Zealand courts witnessed a divorce case unlike any other. For the first time in the history of New Zealand’s judicial system, the interplay between the Copyright Act 1994 and the Property (Relationships) Act (PRA), which governs the division of property when a romantic relationship dissolves, was explored via Alalääkkölä v. Palmer.

Painter Sirpa Elise Alalääkkölä and her husband, Paul Anthony Palmer, were parties to the case before the Blenheim Family Court. Among the properties to be divided between them were Alalääkkölä’s paintings, which she completed during their 20 years of marriage, and the corresponding copyrights.

In 2020, the judge ruled that the copyrights for the paintings do not constitute relationship property and that the skills possessed and used by Alalääkkölä to create her artworks already existed before the couple got married. Hence, copyrights attached to Alalääkkölä’s paintings belonged solely to her.

Palmer appealed the ruling at the Blenheim High Court in July 2021. In September of that year, Justice Andru Isac said that copyright in an artwork is relationship property, and Palmer was awarded with joint ownership of the copyrights.

Alalääkkölä appealed the decision. In February 2024, New Zealand’s Court of Appeal ruled in her favour, stating that the artist should have exclusive legal rights over her paintings despite their classification as relationship property. The court held that she should have control of her artworks’ commercialization.

“The PRA states that any property acquired during a marriage, civil union or de facto relationship is relationship property. Further, contribution to the relationship includes the acquisition or creation of relationship property, including the payment of money for those purposes,” said Kate Sullivan, a partner at Tompkins Wake in Rotorua on New Zealand’s North Island.

If a couple parts ways, as in the case of separation or divorce, the general rule is a presumption of equal division of relationship property, unless extraordinary circumstances indicate that equal sharing would be unjust.

“As with copyright, it appears that a patent or patent application, trademarks and other intangible assets could be held to be relationship property under the PRA if it is acquired after the commencement of the relationship,” said Shelley Slade Gully, a partner at Tompkins Wake in Hamilton. “However, the New Zealand courts are yet to examine this.”

Proceeding to tackle the ambiguities and inconsistencies inherent in the act, Gully stated that Section 8, which defines relationship property, is vague in its use of the term “acquired” in the definition. “As the term IP refers to intangible creations of the mind, it could be claimed that IP does not fall under the definition of relationship property. This definition is also inconsistent with Section 18, which includes the ‘acquisition or creation’ of relationship property,” she explained, adding it is likely a broad interpretation of the term “acquired” would be taken. According to both Sullivan and Gully, this is an area of the law that needs clarification.

“The Supreme Court has granted Ms. Alalääkkölä leave to appeal the Court of Appeal’s decision, with the approved questions of whether the copyrights are, in fact, property for the purposes of the act and whether they are relationship property,” Sullivan said. “The Supreme Court’s decision may change the interaction between IP and relationship property.”

New Zealand is not the only jurisdiction where ownership of IP in the dissolution of a relationship is murky. Vietnamese law lacks clarity as well, according to Linh Duy Mai, a senior associate and head of IP enforcement at Tilleke & Gibbins in Hanoi. “The law lacks clarity due to incompatibility between regulations,” revealed Mai. “While the government decree states that IP rights are separate property, the Law on Marriage and Family considers property created or jointly inherited during marriage as relationship property. This inconsistency creates ambiguity, highlighting the need for further clarification to ensure fair and consistent application.”

“Despite the decree, IP rights can be considered relationship property when jointly inherited by both spouses during marriage,” he added.

Mary Wendy Duran, founding senior partner at Duran & Duran-Schulze Law in Manila, zeroes in on IP ownership dispute where one spouse owns the IP and the other non-contributing spouse is claiming ownership after the dissolution of the marriage, as in Alalääkkölä.

Under Philippine law, the Family Code (Executive Order No. 209, as amended) governs property relations between spouses. These are typically classified into two regimes: 1) the Absolute Community of Property Regime, where properties separately held before the marriage (that occurred on or after August 3, 1988) becomes part of the conjugal property once the marriage has taken place, and 2) the Conjugal Partnership of Gains Regime, where the income and properties accumulated by the couple during the marriage (that occurred prior to August 3, 1988), are considered as common assets. When a pre-nuptial agreement is involved, the property relations of the spouses are separate or even mixed.

“A straightforward example of IP considered relationship property is when a spouse had authored a book prior to marriage. Under the Intellectual Property Code, the copyright to the book remains his or her exclusive property. Thus, there is no doubt as to who the owner in this scenario is,” she said.

“When spouses contribute and co-author a book or collaborate in creating a song, then the IP asset and any derived income therein may be treated either as absolute community or conjugal assets,” added Duran.

But what if one cannot distinguish the output of their respective efforts? Or, what ifthe ownership of IP rights to an intellectual creation of one spouse, say a book he or she authored before the marriage, is being claimed by the other after they separate? This other spouse did not contribute at all to the writing and creation of the book and is therefore the non-creator spouse. Can this non-creator spouse claim copyright over the book, taking into consideration the property regimes in the Family Code such as the Absolute Community of Property Regime?

“In my opinion, a clear differentiation should be made between the ownership of IP, encompassing its associated rights, and the potential income generated by the IP. In the latter part, it is essential to ascertain how the income generated from the IP developed during the spouse’s relationship should be classified,” said Duran.

According to Duran, the Intellectual Property Code of the Philippines does not specifically address the issue of IP ownership in relationships. Hence, existing civil laws and principles are used as references to determine IP ownership when dealing with cases involving spouses or couples.

“IP ownership in connection with relationship properties by spouses or couples is a complex legal issue that requires a thorough analysis of relevant laws and jurisprudence. So, clarification of specific provisions in the Intellectual Property Code of the Philippines may be beneficial to address potential areas of ambiguity,” said Duran.

Duran said that she is not aware of any case in the Philippines similar to the Alalääkkölä case. Most of the cases of dissolution of marriage that she has handled ended up with one spouse giving up their rights to their communal properties.

Duran, however, related a 2004 divorce case in the U.S. where IP ownership in connection with relationship property was decided. In Sheshtawy v. Sheshtawy, the state Court of Appeals in San Antonio, Texas, awarded Amal Sheshtawy, the non-creator, a 60-percent stake in all patents obtained or sought during the marriage, which began on May 16, 1996. Her husband, Adel Sheshtawy, who filed for divorce on December 14, 2000, appealed the decision. In its ruling, the appellate court recognized that a previous Texas court held that patents acquired during the marriage and the resulting profits are considered community property. “This acknowledgement indicates that IP developed within the marital union is subject to division in the event of a dissolution of marriage,” noted Duran.

(It should be noted that, in the United States, divorce law is written by state legislatures and applied by state courts, and that this ruling would not qualify as precedent outside Texas. While Texas is a community property state, only nine U.S. states have similar laws; other states follow what is known as an equitable distribution system, where marital property is divided fairly but not necessarily equally.)

In contrast, the Taiwanese law on IP and relationship property has clarity, according to Nick J.C. Lan, attorney-at-law at Tsai, Lee & Chen in Taipei.

There are three types of matrimonial property regimes in Taiwan.

The default regime is the statutory matrimonial property regime. This regime is used when there is no existing matrimonial property contract stipulating otherwise between the spouses. Under this regime, in principle, the property including the IP rights of either spouse shall be divided into the property acquired before marriage and the property acquired during the union. The property shall also be owned respectively. For example, any IP right acquired by the husband before the union or during the union will still belong to him.

“However, upon dissolution of the statutory marital property regime, the remainder of property acquired by the husband or wife in marriage, after deducting the debts incurred during the continuance of the marriage relationship, if any, shall be equally distributed to the husband and the wife, except property that is (1) Property acquired from succession or as a gift, and (2) solatium,” explained Lan. Solatium refers to a payment made to a victim as compensation for injured feelings or emotional pain and suffering, as distinct from payment for physical injury or for damaged property.

“The court may adjust or waive the share of distribution provided that equal distribution is unfair when one party of the husband and the wife offers neither contribution nor collaboration to the marital life or when other conditions are met. For example, when a husband and wife divorce and the husband acquires a patent in marriage, and the husband’s remainder of the property in marriage is more than the wife’s remainder of the property in the marriage, the wife would be entitled to claim one-half ownership of the patent,” Lan said.

The second matrimonial property regime in Taiwan is the community property regime. Under this regime, in principle, all the property and income of the husband and the wife constitute common property to be owned by them in common and shall not be managed or disposed of without both parties’ consent unless there is an agreement stipulating otherwise. “Upon dissolution of the statutory marital property regime, in principle, each of the husband and the wife acquires half of the property acquired during the continuance of the community property regime,” said Lan.

Lastly, there’s the separation property regime wherein each spouse retains ownership. This means each party manages, uses, collects fruits from and disposes of his or her own property respectively.

Lan does not know of any similar case in Taiwan wherein the question of IP ownership was disputed in a divorce case.

However, he related a criminal case discussing the identification of mens rea (the intent or knowledge of wrongdoing in committing a crime) of a man’s use of a trademark he co-owned with his ex-wife for their restaurant business. During the union, the man, his wife and their son decided on the design of the logo for their business and used it. Later, the wife registered the mark without her husband’s knowledge. Two months after the trademark registration in January 2019, the couple divorced. Upon learning of her ex-husband’s use of the already registered trademark, the ex-wife sued him for infringement.

“The criminal liability of trademark infringement by using the same or similar registered trademark on the same goods or services requires willfulness of the misfeasor. The defendant may raise a prior use defence to deny willfulness,” said Lan.

The defendant argued that he, his ex-wife and his son decided on the logo design together and that the mark was knowingly used during their marriage. They also did not discuss ownership of the trademark when they divorced. He also stressed that to his knowledge, he did not consider the mark to be owned solely by his ex-wife after the dissolution of their marriage.

“The court held that the defendant’s continued use of the trademark was not an infringement due to lack of willfulness as the ownership of the same was in question – or disputed in another proceeding. In the court’s emphasis, a dispute regarding the ownership of a trademark should be resolved as a civil matter rather than bringing up a criminal case,” said Lan.

The ex-husband filed for invalidation of the trademark registration on the grounds of wrongful ownership.

Laws and regulations in some jurisdictions may be ambiguous and require clarification. Nevertheless, the lawyers we’ve interviewed are saying it loud and clear: Each half of a couple has certain rights in the interplay between relationship property and IP, whether they stay married or not.