Navigating new frontiers: the challenges and opportunities of trademark mortgages in Romania
Author: Răzvan Banța
Introduction
Romania’s journey toward treating trademarks as bankable assets began not with the adoption of the New Civil Code in 2011, but more than a decade earlier. The turning point came in 1999 with Law no. 99/1999 on certain measures for speeding up economic reform. Title VI of that law, which introduced a modern regime for security interests in movable property, explicitly stated that its scope covered “rights resulting from inventions, trademarks and other intellectual, industrial or commercial property rights.” This was revolutionary for a country emerging from decades of socialist economics where the very concept of intangible asset financing was alien.
Yet despite its forward-looking provisions, largely modeled on Article 9 of the U.S. Uniform Commercial Code[1], Law 99/1999 struggled to gain practical traction. The law was perhaps too ambitious for its time, and the market remained cautious about accepting intellectual property as collateral. Banks lacked valuation expertise, and the newly established Electronic Archive for Movable Security Interests (AEGRM) was still finding its footing.
The second major reform came in October 2011 with the entry into force of Romania’s new Civil Code (Law no. 287/2009). This comprehensive legislative overhaul replaced Law 99/1999’s security interest regime with the mortgage over movable assets system, while preserving, and in some ways strengthening, the possibility of using intellectual property as collateral. The Civil Code explicitly lists in Article 2389 letter (e) “intellectual property rights and any other intangible assets” among eligible collateral objects, and grants properly registered mortgages the status of enforceable titles, allowing creditors to proceed directly to enforcement without first obtaining court judgments regarding the merits of their claims.
Therefore, the legal foundation has been in place for over two decades. Romania has, on paper, positioned itself alongside modern jurisdictions where brand equity functions as a bankable one and does not represent solely a marketing asset. Yet, as in most emerging markets, there remains a considerable gap between what the law permits and what the market actually practices. This article examines the evolving landscape of trademark mortgages in Romania: the legislative base, the procedural framework, and the practical realities of converting brand value into financial leverage.
The legal foundation: from property right to enforceable security
The legal framework enabling trademark mortgages in Romania is based on provisions of the Law no. 84/1998 on Trademarks and Geographical Indications and the Civil Code (Law no. 287/2009).
Law no. 84/1998, which was amended in 2022 to transpose EU Directive 2015/2436, recognizes the trademark as a fully-fledged property right. This grants the holder jus disponendi, the right to transfer, license, or encumber the mark. The Civil Code provides the operational framework through Article 2389, which expressly lists “intellectual property rights and any other intangible assets” among the eligible objects of a movable mortgage.
It is important to note that only the patrimonial rights arising from an intellectual property right may form the object of a mortgage, by contrast, the moral rights, which are non-patrimonial and inalienable, cannot be encumbered or transferred and therefore fall outside the scope of the security interest[2].
Regarding the form of the deed, the Civil Code is flexible in this regard. Under Article 2388 of the Civil Code, a contract establishing a mortgage on movable property can be concluded either in authentic form or under private signature. This modern approach favors accessibility and efficiency in secured transactions, enabling parties to constitute security interests without the formal rigidity traditionally associated with authentic instruments. By allowing the mortgage to be established under private signature, the Civil Code facilitates the rapid and cost-effective creation of security interests.
Article 2431 of the Civil Code grants a validly concluded movable mortgage deed the status of an enforceable title, even if they are concluded under private signature. Put simply, once a mortgage is properly registered and perfected, the creditor may proceed directly to enforcement without first obtaining a separate court judgment regarding the merits of the claim, an efficiency that few European legal systems offer so explicitly.
Another important advantage is that the movable mortgage deed represents an enforceable title even if the contract from which the debt derives is not an enforceable title. This was settled by the High Court of Cassation and Justice in the Decision no. 60/18.09.2017 rendered by the panel for resolving legal issues.
This statutory clarity makes Romania’s regime notably forward-thinking. However, as with any instrument rooted in intangibles, the true test lies not in drafting legislation but in executing transactions within its framework.
The path to perfection: dual publicity and procedural complexity
The mobile mortgages are subject to the principle of publicity according to Article 2409(2) of the Civil Code. Perfecting a trademark mortgage in Romania is not accomplished through a single filing. The system allows dual registration combining the general regime of secured transactions with the specialized world of intellectual property rights.
The first step occurs at the National Registry of Movable Publicity (RNPM), which replaced the former AEGRM system. Registration with the RNPM achieves two critical effects: opposability to third parties (legal enforceability against other creditors and claimants) and the establishment of priority according to the first-to-file principle.[3] Without this registration, a mortgage exists only between the contracting parties and carries no weight against subsequent creditors.
The second registration, often overlooked by those unfamiliar with IP practice, must be made with the Romanian State Office for Inventions and Trademarks (OSIM). Recording the encumbrance in OSIM’s trademark register is not strictly required for the mortgage’s validity, but it’s highly advisable for transparency and due diligence purposes. It signals to the market that the trademark is encumbered, safeguarding both the creditor’s interest and the integrity of transactional chains involving the mark. It has been noted in the jurisprudence that the registration of the enforcement measure in the OSIM’s trademark register renders ineffective and unenforceable against the creditor any legal acts concluded by the debtor in relation to the asset subject to enforcement. [4]
Furthermore, a special effect of recording the mobile mortgage in OSIM’s trademark register is that the owner of the trademark cannot surrender the trademark without the creditor’s consent.
In practice, these two filings rarely occur simultaneously. Coordination between RNPM operators and OSIM officials is non-existent and, in order to avoid any timing challenges, particularly when trademarks form part of larger portfolios or cross-border collateral packages, one must deal with the two registers separately. In practice, in order to obtain legal security, it is important to ensure that both registrations are properly executed.
The valuation: when brand meets balance sheet
The legal possibility of mortgaging a trademark doesn’t automatically translate into market appetite. The most persistent barrier remains the valuation problem, a challenge that affects most emerging IP finance markets worldwide.
Romania still lacks a unified, market-recognized methodology for assessing the fair value or liquidation value of trademarks. Traditional lenders, particularly banks, remain cautious because brand value is inherently volatile, depending on commercial performance, consumer perception, and ongoing marketing investment.
International standards such as ISO 10668 (Brand valuation—Requirements for monetary brand valuation), published in 2010, offer guidance. Romanian evaluators are increasingly turning to income-based methods (discounted cash flows from branded product lines) or market-based comparisons. However, for enforcement purposes, lenders are more concerned with liquidation value, what the mark could realistically fetch in a forced sale, rather than its theoretical accounting worth. This divergence between valuation methodologies and enforcement realities remains an unsolved friction point.
The situation becomes even more complex when trademarks are co-owned, embedded in franchise systems, or tied to ongoing licensing agreements. In such cases, the value of the asset as collateral becomes inseparable from the performance of the underlying business, making both credit assessment and enforcement inherently complicated.
From default to liquidation
If a debtor defaults, the creditor may proceed with enforcement based on the enforceable mortgage deed. Yet executing against a trademark is a highly nuanced process. Unlike tangible assets, a trademark cannot be “repossessed” in any physical sense. Its value lies in reputation and market perception, elements that dissipate quickly if the brand is taken out of use or stripped from its commercial context.
In the event of non-performance by the debtor, the creditor may choose among several remedies provided by the Civil Code. It may sell the mortgaged asset in accordance with Articles 2445–2459, appropriate the asset in order to extinguish the secured claim under Articles 2460–2463, or take possession of the asset for the purpose of administration pursuant to Articles 2468–2473. It is important to note that, in some instances, the courts will have an involvement in the process, such as: approving the enforcement of the mortgage by selling the mortgaged movable property, assessing the opposition filed against an enforcement or in case of an action for the liability of the creditor for the breach of the rules for repossession of mortgaged property.
However, finding a buyer for an isolated trademark in a forced-sale environment is far from straightforward. Unless the brand enjoys substantial recognition or forms part of a profitable product line, the market for such assets is thin.
Limited practical experience suggests that creditors often prefer negotiated settlements such as refinancing, partial assignment, or restructuring, rather than attempting to monetize the mark itself. In this respect, Romanian practice mirrors international trends: the mortgage over a trademark serves primarily as leverage for negotiation, not as a readily realizable asset.
Opportunities on the horizon
Despite its procedural and valuation challenges, the ability to mortgage trademarks represents a powerful yet underutilized opportunity in Romania’s corporate finance ecosystem. For start-ups, technology firms, and creative industries, which often lack traditional collateral such as real estate or machinery, IP-backed financing could unlock access to growth capital.
International trends provide encouraging context. In the UK, banks like NatWest and HSBC UK have since 2024 begun offering IP-backed loans where intellectual property serves as primary or sole collateral. These developments signal that Romania’s legislative framework positions it well for similar innovation.
If Romanian lenders develop internal policies for IP-backed lending, supported by credible valuation expertise and clear regulatory guidance, trademarks could evolve from mere branding tools into financing instruments. The creation of standardized valuation practices, potentially under the supervision of the Romanian National Association of Appraisers (ANEVAR), would be a significant step forward. ANEVAR, founded in 1992 and counting over 3,700 members, is already a recognized authority on intangible asset valuation.
Moreover, Romania’s membership in the EU Intellectual Property Network (EUIPN) facilitates the potential for cross-border recognition of IP encumbrances, paving the way for regional financing models where a brand registered in Bucharest could serve as collateral in Vienna or Warsaw.
The road ahead
Romania’s legislative groundwork for trademark mortgages is solid, forward-looking, and harmonized with European legal principles. Yet as often happens in jurisdictions transitioning toward an innovation-driven economy, the law has outpaced the market.
For now, trademark mortgages remain more of a legal curiosity than a mainstream financial tool. The lack of standardized valuation methodologies, limited case law, and low liquidity in the secondary IP market still constrain practical adoption. However, the trajectory is unmistakable. As legal practitioners, evaluators, and financial institutions gain confidence in the system, Romania appears in a good position for a gradual normalization of IP-backed financing.
[1] p. 526, Radu Rizoiu, Security Interests in Movable Property. A Functional Approach, Universul Juridic Publishing House, 2011.
[2] p. 524, Radu Rizoiu, Security Interests in Movable Property. A Functional Approach, Universul Juridic Publishing House, 2011.
[3] P. 564, Radu Rizoiu, Civil Guarantees, 2nd edition, revised and expanded, Hamangiu Publishing House, 2022.
[4] Bucharest Court of Appeal, IV-th Civil Chamber, Decision no. 302A/26.04.2016.
