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Trademarks and Franchising: What’s a “Mark” and Why Your Franchise Needs It

Trademarks are everywhere nowadays. You see them in your grocery store, on television, the internet, I could go on. But what exactly does that little symbol indicate and why is it important? Today, we’re going back to the basics to explain what a trademark is, why it’s important, and how it ties into franchising. So let’s dive in.

The United States Patent and Trademark Office defines a trademark as a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. This makes it so that no other entities can use your trademarked item for the profit or advertisement of their business. This sets the tone for your brand identity and allows you to grow your brand uniquely and individually. In order to obtain a Mark, you must register with the USPTO. When you do this, you are able to use the registration symbol ® in conjunction with your Mark. When it comes to branding, you may also have seen a ™ next to someone’s branded good. This just indicates that they have not yet registered with the USPTO but is still protected from infringement pursuant to the Lanham Act.

Trademarking is an important piece to franchising your business. Not only does it serve as protection for the franchisor surrounding your brand identity, but by signing franchisees on to your system, they also receive permission to use your Mark(s). However, you as the franchisor claim full responsibility for the Mark and must provide evidence as to its registration. You will want to be prepared for any situation and give your franchisees the assurance that you’ve got them covered. Item 13 of the Franchise Disclosure Documents (FDD) is dedicated in its entirety to your franchisee’s trademark rights and how they will be permitted to use them.

Even if you are not franchising your business but you are a small business owner, you may want to consider trademarking your business. There are several benefits to registering your Mark. For starters, it gives you exclusive rights to use the Mark nationwide. It also prevents the registration of confusingly similar Marks and allows you to bring a lawsuit to federal court for any individuals who infringe upon your Mark. Business is tough these days and competition is high. If you’ve got a good idea and can secure your own individual use for branding it, why wouldn’t you?

Once you have your Mark, to maintain it, you must file a Declaration of Use with the USPTO after five years of your registration date, and every ten years, you must submit an application for renewal. While this process can be straight-forward for those individuals with prior experience surrounding trademarks, for others it can be more challenging. For any serious undertaking such as trademarking a branded good, you should always consider hiring a professional to guide you through the process.