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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 the franchisor has developed, which hopefully during the term of the franchise will become increasingly well known, so that customers are attracted to franchisees’ businesses.In view of the importance of brands in franchising, the majority of franchisors protect their brand by having a registered trademark. This is not a legal requirement, but is highly desirable. Trademarks are registered in the UK with the Intellectual Property Office, whose database can be searched, although generally you would expect the franchisor to provide details of the registration of its trademarks in the franchise agreement.It should be a matter of concern for franchisees if a franchisor does not have a registered trademark, 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 trademark. Accordingly, franchisors that only have an unregistered trademark are in a less strong position to protect their franchisees by prosecuting infringers than if they had a registered one.
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