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Abstract

This paper addresses the question of the law applicable to a trademark gift deed involving a foreign element as trademarks have become movable, intangible assets that can be transferred to third parties. The significance of studying the applicable law lies in the fact that it helps identify the law applicable to a trademark gift deed that involves a foreign element pursuant to Article 49 of Kuwait Law No. 5 of 1961. This paper attempts to clearly characterise a gift deed in order to avoid confusion with other forms of deeds, such as sale deeds and wills. It also tries to determine whether a gift deed is a personal status matter or a civil matter, since ownership of the gifted trademark is the result of a legal disposal rather than the application of the law. This gives rise to issues which make it necessary to determine the law applicable to substantive and formal conditions of a gift deed and their implications, shed light on the amount of the gift, which varies between outright gifts and death bed gifts, and explain that the latter will be characterised as gifts. One of the problems we faced is that Law No. 5 of 1961 dealt with characterisation in its explanatory memorandum. In addition, the choice-of-law rule is incompatible with legislative developments in Kuwait. The paper concludes that in repeatedly selecting nationality as a choice-of-law determinant, the choice-of-law rule shows respect to the personal consideration of the gifter. However, this conclusion leads us to the need to make several amendments, including defining a more relevant determinant

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