Investing in a brand is an essential element of a business and even more so for a franchisor or franchisee, writes Samantha Scholz, senior associate at law firm Baybridge.

Wikipedia provides an overall definition of a brand being:

“a set of marketing and communication that helps to distinguish a company from competitors and create a lasting impression in the minds of customers”

Brand creation seems a fairly simple process, however we often see that many start up franchise businesses fail to research and implement a brand that is available to use and that then has an effect on the target audience.

Creating and developing a brand is an inexpensive undertaking but it is important to remember that it requires a lot of attention to successfully and continually protect a brand and the associated business in the years to come.

Here are some basic steps to protect your brand:

Due diligence

Most lawyers tell start-up businesses to do their research before even considering implementing and marketing their brand. In relation to a franchisee entering into a franchise agreement, do your due diligence as this will assess what intellectual property (namely trademarks, copyright, design and patents) is actually owned by the franchisor.

This is an extremely important exercise that can ultimately save you a lot of heartache and money in the future.

Register your trademark

Once due diligence is completed, the next step is to protect your brand. Where intellectual property rights are mentioned in an agreement, those rights often relate to trademarks and this essentially represents the business’s brand. Registration of a trademark gives the registered owner the exclusive rights of the trademark in relation to the registered goods and services, throughout Australia.

Registering a trademark is a quick, easy and a relatively inexpensive process to protect your brand and business. A registered trademark also has the potential to increase the value of your business.

Create brand guidelines

Once the trademark registration is obtained, you should also make sure that anyone associated with your brand understands your brand’s guidelines. This includes educating all your employees, business partners, and all of the businesses and vendors in your supply chain about how they can use your trademarks and other intellectual property.

Creating brand guidelines ensures that your rights aren’t compromised and that your trademark does not become too generic as well as guaranteeing that it is used in the form in which it was registered.

Monitor your brand and your competitor’s brands

It is vital to ensure that you protect your brand and that you prevent others from using a brand name that is substantially identical or deceptively similar to the trademarks related to your goods or services.

You can manage this by using tools such as Google alerts, Google searches, the Trade Marks Office search engine and by monitoring social media and competitive advertising.

Don’t just think nationally, think internationally

It is essential that when you are establishing your business and your brand that you develop a well thought out strategy for obtaining and protecting your trademark both in Australia and overseas.

If your brand is not protected internationally but you are hoping to expand overseas, it is possible that you may discover that another party may have intentionally or unintentionally, registered an identical trademark for exactly the same goods and/or services in that country

This occurred in the well-known case where Burger King was hoping to launch its franchise in Australia only to discover that the trade mark ‘BURGER KING’ had already been registered in Australia by an unrelated third party who did not want to sell.

Get advice

Protecting your brand and the goodwill generated by your business and imparted to consumers are a vital part of a franchise. The success or failure and the future asset value of any business depends on the protection of its trademarks and brands, which can be controlled by having a secure and agile intellectual property strategy in place.

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.