How can I find out if a franchisor’s brand has been properly protected?

Brands are an essential part of any franchise. Apart from receiving the franchisor’s know how franchisees make use of the brand that the franchisor has developed and hopefully during the term of the franchise that brand will become increasingly well known so that customers are attracted to franchisees’ businesses through the power of the brand.
In view of the importance of brands in franchising the great majority of franchisors protect their brand by having a registered trade mark. This is not a legal requirement but is highly desirable. Trade marks are registered in the UK with the Intellectual Property Office and the Intellectual Property Office’s database can be searched although, generally, you would expect the franchisor, in the franchise agreement itself, to provide details of the registration of its trade marks.
It should be a matter of concern for franchisees if a franchisor does not have a registered trade mark, but even in that situation franchisors are able to protect their unregistered brand by what is called a “passing off action”. The disadvantage of such actions is that they are complex and expensive – much more so than an action to enforce a breach of a registered trade mark. Accordingly, franchisors who only have an unregistered trade mark are in a less strong position to protect their franchisees by prosecuting infringers than if they had a registered trade mark.

Written by: John Pratt

Partner, Hamilton Pratt