Forming an IP Holding Company in Luxembourg

The domain names, patents, trademarks, models, design, copyright related to software and domain names are considered intellectual property. The Luxembourg intellectual property can be divided in two: industrial property (patents, trademarks and designs) and the copyright and the related rights. Foreign investors can register IP holding companies in Luxembourg based on intellectual property created or bought after the 31^st of December 2007. If purchased, these rights must not come from an affiliated company. Also, in the first financial year of the Luxembourg IP holding company, the IP rights be registered as assets in the financial documents.

Our lawyers in Luxembourg can offer detailed information about all the conditions required by the law in order to establish an IP holding in the Grand Duchy. We can also help you register a holding company for intellectual purposes in Luxembourg.

Intellectual property elements in Luxembourg

The industrial property is represented by patents (which protects an invention or an improvement of a product or a process, a product or a process providing a new solution to a particular technical problem or a new use for something; the marks (refers to the identity of the product or service and which can be graphic signs for distinguishing goods or services of one undertaking from those of its competitors, a word mark, a figurative mark or a mark combining these two aspects); and the drawing or model for the appearance and aesthetics of a product (the shape, configuration, texture).

Copyright and related rights apply on literary, musical or artistic works. It covers software, drawings, maps, charts, plans, photographs and films, architectural works, sculptures, sound recordings, radio and television and others. For small and medium businesses, the effective use of intellectual property rights can afford to compete with larger companies. Intellectual property offers potential for these entities in terms of legal protection, information technology and competitive advantage.

The Luxembourg government is very interested in developing new technologies and granting support to new businesses so new measures for protecting those and helping developing this sector were taken. One of these measures is the IP tax regime which is applicable to IP rights which was created after 31 December 2007.

Advantages for setting up IP holdings in Luxembourg

There are several advantages attached to the IP tax regime in Luxembourg such as:

• -        the total exemption from the new wealth tax,
• -       an 80% exemption from the net capital profits achieved after the release of qualifying IP,
• -       an 80% exemption of the net positive income from using certain IP rights,
• -       a deduction of up to 80% of the net income applicable for self-developed patents used by the applicant in their own actions.

Because of the above advantages, the foreign companies may be encouraged to open patent holding companies with the purpose of acquiring patents and their exploitation via its subsidiaries. As a rule, the holding company cannot perform any commercial or industrial activity related to the patent but can grant licenses to related or unrelated companies. The copyrights of know-how can be purchased only if are related to the patents owned by the company.

The IP Box in Luxembourg

The IP Box was recently introduced in Luxembourg and it refers to a special tax regime applied to income obtained from intellectual property rights. Under this regime, the income resulted from various IP rights takes the form of a tax relief, which is what makes Luxembourg one of the most attractive destinations for setting up a holding company for intellectual property purposes. Even if the holding company can be used in many countries for holding such IP rights, Luxembourg is by far one of the jurisdictions offering this type of company such a status.

In order to qualify for the IP Box regime in Luxembourg, the following conditions must be met:

1. the intellectual property rights must have obtained or developed after the 31^st of December 2007;
2. the company acquiring the IP rights must submit relevant proof that they were not acquired with the purpose of obtaining tax benefits;
3. the costs related to the development of the intellectual property rights must be subject to a favorable trade balance;
4. the rights over the intellectual property cannot be transferred from the parent company to a subsidiary in which the former owns more than 10% in the shareholding;
5. another transfer requirement refers to the fact that the parent company cannot transfer IP rights to subsidiaries with common shareholders.

For more information on the holding company for IP purposes you can discuss with one of our Luxembourg lawyers who can also explain in detail how the IP Box Regime works.

IP rights which can be obtained under the holding in Luxembourg

Even if Luxembourg has its own legislation with respect to the protection of intellectual property rights, for the acquisitions of certain rights companies in the Grand Duchy will respect the Benelux legislation (the laws applicable in Belgium, Netherlands and Luxembourg).

Under the IP Box Regime, the following intellectual property can be used for the creation of a holding company:

• - copyrights over software;
• - internet domain names;
• - patents and trademarks;
• - designs and industrial models.

Copyrights over literary works cannot be used for the creation of a holding company for IP purposes in Luxembourg.

Also, in order to be considered for tax purposes in the holding company, the IP rights must be recorded in the company’s balance sheet for the year the tax benefit is claimed. The rights must be recorded as assets.

Our attorneys in Luxembourg can offer more information on the legislation applicable to intellectual property rights in the Grand Duchy.

How to set up an IP holding in Luxembourg

The first step in registering an IP holding company is to draft the Articles of Incorporation which contain the general information regarding the name of the company and its headquarters, the name of the founder, the amount of the share capital and the amount of paid capital (if necessary), the value and the type of the shares, information regarding the representatives and auditors. Besides the articles of association are also required the certificate that proves that the name is available and, if necessary, the certificate that proves that the paid capital was deposit in the bank. The Articles of Incorporation are then signed in front of a Notary and publish it in the Official Gazette. Our attorneys in Luxembourg can assist with the preparation of the documents required to register the IP holding.

The IP holding as a tax minimization tool in Luxembourg

We have seen above the tax exemptions which can be obtained through an IP holding company in Luxembourg, however there are several conditions to be met before obtaining them. Foreign companies can transfer their IP rights in a holding company in Luxembourg provided that the former complies with a few requirements. The first one is for the foreign company to have a legal address in Luxembourg (this can be obtained with the help of our virtual office services) and to have a Luxembourg resident manager.

Most of the times the SOPARFI holding company is used in Luxembourg with the purpose of owning IP rights. This business forms also falls in the Parent-Subsidiary Directive, thus becoming more appealing from a taxation point of view.

The IP holding company in Luxembourg can take the form of a corporation (private or public) or of a cooperative which must be registered as a public limited company.

Our law firm in Luxembourg can help you set up an IP holding company under the form of your choice.

Why set up an IP holding company in Luxembourg?

Luxembourg is a very attractive country for starting a business, especially when it comes to the IP holding company. Apart from IP Box Regime which provides for reduced corporate tax rate (an effective rate of 5.84%), Luxembourg is very appealing for starting a business in any other field apart from the financial one. Among these, we mention the following:

• - Luxembourg has signed an extensive number of double tax treaties, out of which 64 are already in force;
• - companies can benefit from various tax credits on investment (a 12% credit is available for qualified investments in tangible assets);
• - some tax credits are available for periods of up to 10 years;
• - copyrights can benefit from a reduced VAT rate of 3% (one of the lowest in the EU).

We can help you open any type of company in the industry you are interested in Luxembourg, if you want to do business here. For complete information on establishing an IP holding, please contact our law firm in Luxembourg.