Protecting The Franchise Brand
Given a franchise group’s brand may be one of its most valuable assets, franchisors should be continually reviewing its own and its franchisees activities to ensure that the franchisor is actively managing and protecting its brand.
There are a number of steps franchisors can take to protect their brand, some of these include a Franchisor ensuring:
1. That they, or their relevant intellectual property holding entity, have full ownership and rights in respect to each of the elements that come together to create or are essential to maintain the franchise group’s brand. If they do not, then relevant rights should be assigned in writing to the franchisor or its related intellectual property holding entity.
Undertaking an intellectual property audit and then maintaining an intellectual property register may assist work out the relevant elements and ownership rights.
2. Where any brand elements are able to be legally registered for additional protection, this has been done and will be maintained, with processes also in place to be able to take action against any parties infringing these rights.
Patent, trade mark and business name registration within various territories and/or countries may need to be considered here. Any registrations and their renewal dates should then be listed in the relevant intellectual property register.
3. Documents, processes and notices that reinforce their legal rights and any restrictions or requirements that aim to help maintain and protect the brand are in place.
What is involved and required will vary between franchise systems. Saying this, irrelevant of the system, franchisors should ensure they have clear copyright and intellectual property notices displayed and manuals that clearly deal with marketing, branding, confidentiality and intellectual property requirements and rights. Also, and often most importantly, there be clear agreements in place that cover off branding, intellectual property, confidentiality and restraints issues with those parties (for example, franchisees, employees, suppliers and customers) whose actions and/or inactions may impact the brand.
Again the above are just a few suggestions and it must be kept in mind that once you have any registrations, notices and documents in place, unless you monitor and actively take steps to ensure compliance and/or enforce your rights, a franchise brand will continue to be at risk.
Please note this does not purport to be comprehensive advice relevant to your circumstances. Consequently, specific legal advice for each of your circumstances should be obtained first before taking or not taking any action in respect to this area.