Brand Protection

Yes, this is a condition of validity of the franchise agreement.   

The franchisor provides the franchisee with a sign, which is a sign of rallying, of customer attraction. It must be protected as a trademark for all the products or services referred to in the contract.  

If this is not the case, there is a lack of consideration for the royalties and a risk of nullity of the franchise contract which leads to a restitution of entry fee, royalties and possibly compensation for the damage  

suffered.

Therefore, trademark protection must be acquired at the time the first franchise agreement is signed and maintained in force for the duration of the agreement.  

First of all, the brand must be distinctive since the function of a brand is to allow consumers to identify the origin of the producer of a product or service.  

For example, the term “butchery” for a retail meat activity, will not be protectable: it is descriptive of the activity so it is not distinctive. On the other hand, if we talk about a restaurant, butchery is no longer a descriptive term at that time. It may be appropriate as a trademark.  

Second essential condition: the absence of prior art.  

The prior art does not necessarily relate to an identical sign: it is a sign, another trade mark, a domain name, a company name, a name of a local authority, a PDO, etc., which may only be similar. The term “similar” refers to the criteria for infringement. This means that  it will evoke in the mind of the consumer another sign that can lead the consumer to confuse the two signs so it is necessary to make an anticipation analysis taking into account the risk of counterfeiting.  

This is a mission that should be entrusted to a professional who has the technical skills in intellectual property.  

How long does it take for a trademark to be registered in France?  

It takes almost 5 months. It is therefore necessary to anticipate the registration of the trademark in the network creation process.  

Why 5 months? The descriptions are defined, a prior art search is carried out and then the application for registration is filed with the INPI, which publishes it in the Official Bulletin of Industrial Property. This publication marks the opening of a 3-month opposition period.  

However, it usually takes 3 or 4 weeks of administrative processing to publish to BOPI. If this period expires without opposition from persons who would have an anteriority,  the INPI takes another 3 or 4 weeks to issue the certificate of registration of the mark. Thus, it takes  between 4 and 5 months of cumulative time to obtain trademark protection  

It‘s not a difficulty.  On the other hand, the company that will be responsible for signing the franchise agreements must have effective rights to this brand so you will have the possibility before signing the first franchise agreement either to assign the brand to it or to make it available to it as part of, for example,

a brand license.

It is a brand rental possibly against income (royalties) or with any other provisioning technique.It will therefore be necessary to organize a chain of rights between you and the franchise company.