Protecting Trade Marks Before Franchising in Australia

Your business name may be familiar to customers, but that does not automatically mean you can protect it or license it to franchisees. Before franchising an existing Australian business, establish who owns the brand, what protection it has and how others may use it. Resolving these questions early helps prevent expensive rebranding and builds a stronger foundation for your franchise community.

1. Separate business registration from brand protection

Registering a business name with the Australian Securities and Investments Commission (ASIC) is not the same as registering a trade mark. Nor does owning a company name, domain name or social media account automatically give you exclusive rights to the brand.

IP Australia administers Australian trade mark registration under the Trade Marks Act 1995. Registration gives the owner exclusive rights to use, and authorise others to use, the registered mark for the goods or services covered, subject to the Act.

Start by listing the brand assets franchisees will need:

• The main trading name and any customer-facing sub-brands.
• Logos and distinctive product or service names.
• Slogans that are important to the customer proposition.
• Domain names and social media accounts supporting those brands.

Prioritise the assets that identify the business to customers. A registered logo and a registered word mark protect different things; protecting one does not necessarily provide equivalent protection for the other.

2. Check ownership and conflicting rights

An established business can still have gaps in its ownership records. A founder may hold a trade mark personally, while the proposed franchisor is a company. A designer may retain copyright in a logo if the relevant rights were never assigned.

For each key asset, record its owner, registration or application details, renewal date and supporting contracts. Where ownership needs to change, obtain advice on the appropriate assignment and record any transfer with the relevant registry.

Next, search IP Australia’s trade mark records for identical and similar marks. Check relevant goods and services, not just exact matches to your name. Similar spelling, sound or appearance can matter.

Also investigate actual marketplace use. Earlier unregistered rights can create risks through passing off or the Australian Consumer Law, even where a register search looks clear.

Ask a trade marks attorney to assess significant conflicts before committing franchisees to signage, uniforms or premises branding. An available business name is not a legal clearance to use that name.

3. Match protection to the franchise offering

Trade mark applications must identify the goods and services for which protection is sought. Choose these around what your business actually supplies and its credible expansion plans, rather than assuming one registration covers every activity.

For example, a business operating cafés and selling packaged coffee should obtain advice on protection for both its services and its branded goods. The right scope depends on the proposed offering.

Distinctiveness also matters. A name that simply describes a service or location may be difficult to register or enforce. Discovering that weakness before expansion gives you time to reconsider the brand.

Keep application status separate from registration status in your planning. Filing an application does not guarantee registration, and examination or opposition may reveal obstacles.

Australian registration does not automatically protect a brand overseas. If international expansion is realistic, take separate advice before offering rights outside Australia.

4. Put workable brand licences in place

The franchise agreement should grant rights that the franchisor actually owns or is authorised to license. If another entity owns the trade marks, check that the upstream licence permits sublicensing and supports the proposed franchise arrangements.

Have your solicitor address:

• Which marks franchisees may use, and for what activities.
• Where and for how long that permission applies.
• Approval requirements for advertising and local adaptations.
• Quality standards, monitoring and corrective action.
• Responsibility for reporting and responding to suspected infringement.
• Removal of branding and handling of digital accounts when the relationship ends.

Do not treat quality control as paperwork alone. Australian trade mark law recognises authorised use under the owner’s control. Obtain advice on suitable controls, then retain evidence that reviews and approvals actually occur.

5. Align brand claims with franchise law

Australia’s Franchising Code of Conduct is a mandatory code under the Competition and Consumer Act 2010, enforced by the ACCC. The current Code commenced on 1 April 2025, with some provisions applying later. It regulates the franchise relationship separately from trade mark registration.

The disclosure document must contain prescribed information about relevant intellectual property. Have your solicitor check that ownership, licensing arrangements and any relevant disputes or restrictions are accurately described. The agreement and sales materials should tell the same story.

The Australian Consumer Law also prohibits misleading or deceptive conduct. Do not describe a pending application as a registered trade mark or promise protection broader than your rights support.

Practical takeaway: Before offering your first franchise, assemble a verified brand ownership file, resolve material protection gaps and have your trade mark licences and disclosure checked together.