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Franchising and trademarks

Posted by Carolyn Dufton on 12 July 2012
Franchising and trademarks

The importance of brand protection for franchises don't forget taglines as well!

It is a plain fact that the attraction of a franchise is to take advantage of a set of a well-established system and brands that are proven to work.

From a franchisor's perspective, it is therefore crucial to ensure that they own and protect all intellectual property relating to their business, whether in the form of trademarks, copyright, patents or designs.

Contrary to popular belief, the law does not protect ideas or concepts per se.

However, it does offer protection for the expression of those ideas. For example, you cannot protect the idea of having a cupcake chain, but you can protect the specific images and logos used for that chain.

The menus and the wording of any marketing materials are also protected under copyright laws (as "literary works").  

Trade marks

Brand names, taglines and catchphrases differentiate your business from others. OH WHAT A FEELING equals Toyota.

JUST DO IT equals NIKE, and so on.

"Coca-Cola" for example is a registered trade mark, but the Coca-Cola Company has also registered its taglines in Australia such as; "OPEN HAPPINESS", "GET CAUGHT RED HANDED" and "THE TASTE OF COOL".

Business names where do they fit in?

Another common misconception is that a registered business name provides ownership over the name itself.

Not so. While it may seem "official" it is merely administrative.

This can cause problems if you decide to franchise your business model with only a business name in place and someone else has registered a trade mark similar to yours.

A further fallacy is that you cannot register taglines.

As mentioned above, taglines and slogans can make very effective trademarks, especially if they are unique and distinctive (you will find relevant examples below).

Uniqueness

Having brand names and taglines that are unique is vital not just from a marketing perspective, but also so that they can be registered as trademarks.

To be registrable, trademarks must not describe the goods or services in question.

There may be a number of possible solutions if you have already chosen a descriptive term (such as showing long term use of that term), however, it is far easier and "pain free" to get it right from the outset. Given that you provide franchisees with exclusivity and a licence to use the brand, it is crucial that you own the brands and all elements of it (e.g. taglines).

Conclusion

This short article only gives you a "taste" of intellectual property and brand protection in the franchising context.
The aim has also been to emphasise that taglines can be protected as registered trademarks.

Since trade mark registrations are granted on a "first come first served" basis, it is important to apply as soon as you can.

This is a highly complex area of the law and it is recommended that you seek the advice of a lawyer or trade mark attorney.

*Sharon Givoni runs her own legal practice with a focus on commercial law and intellectual property law with many clients in the franchise industry. She can be contacted on 03 9527 1334 / 0410 557 907 or emailed on sharon@iplegal.com.au. Her website is located at www.sharongivoni.com.au

Disclaimer - The contents of this article must not be relied upon as substitute for professional legal advice

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Author: Carolyn Dufton
About: Carolyn Dufton Dip. Bus (Franchising) heads the team as the owner and manager of franchisingplus. Carolyn has a wealth of small business experience, and many years of hands on franchising experience.
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Tags: Franchising

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