Protecting Trade Marks Before Franchising in Australia

Your existing business may have a recognisable name, but that does not automatically mean you can safely license it to franchisees. Before expanding your franchise community, check who owns the brand, what protection exists and whether your agreements give franchisees clear rights to use it. Resolving these questions early can prevent costly changes to signage, websites and customer-facing materials later.

1. Establish what you own and can license

Start with an inventory of the brand assets a franchisee will use. Include the trading name, logo, taglines and any distinctive names attached to products or services. Record domain names and social media accounts separately: controlling these does not establish trade mark ownership.

For each asset, record:

• The person or company claiming ownership.
• Any trade mark application or registration details.
• The goods and services covered by the registration.
• Any licence, assignment or restriction affecting its use.
• Where supporting documents are stored.

An established business can still have gaps. A founder might personally own the trade mark, while the operating company sells the franchise. A designer might have supplied a logo without a clear written assignment of copyright. Neither issue should be left for a prospective franchisee to discover.

Ask an intellectual property adviser to check the ownership chain. Where another entity owns the brand, confirm that the franchisor has an appropriate licence, including permission to grant franchisees the necessary rights. Check what happens if that underlying licence ends: franchise rights should not depend on an arrangement nobody has reviewed.

2. Check protection against your expansion plans

Registering a business name is not the same as registering a trade mark. Australian trade mark registration is administered by IP Australia under the Trade Marks Act 1995. Protection depends on the mark and the goods or services covered; it is not blanket ownership of a word in every commercial setting.

Before committing to franchise recruitment or new branded premises, arrange a clearance search. Look beyond identical names to potentially conflicting marks. An available domain name or business name does not demonstrate that using the brand will avoid infringement.

Compare your existing protection with what franchisees will actually do. For example, a business moving from selling products to offering branded services should check whether its existing registration covers the intended activities. Obtain advice on appropriate applications rather than assuming the original filing is sufficient.

Distinguish clearly between an application and a registered right. Filing does not guarantee registration. If an application is pending, decide with your advisers whether recruitment should wait and how its status must be described accurately.

Build renewal dates and ownership checks into a central calendar. Australian registration also does not automatically provide protection overseas, should international franchising become part of your plans.

3. Align the brand licence with franchise disclosure

Australia specifically regulates franchising through the mandatory Franchising Code of Conduct, prescribed under the Competition and Consumer Act 2010 and enforced by the ACCC. Trade mark registration does not replace compliance with the Code.

The Code requires pre-contract disclosure, including information about intellectual property used in the franchise. Have your franchise lawyer ensure that the disclosure document accurately describes the relevant rights, ownership and arrangements. The franchise agreement should then grant rights consistent with that disclosure and with any underlying intellectual property licence.

Ask your advisers to address:

• Which marks the franchisee may use and for what activities.
• Any territorial, channel or other limitations on that use.
• Whether the rights last throughout the agreed franchise term.
• Who maintains registrations and manages infringement issues.
• How approved brand changes will be communicated and implemented.

The Australian Consumer Law also prohibits misleading or deceptive conduct. Avoid describing a brand as registered, exclusive or fully protected unless the facts support that description. A polished recruitment presentation cannot cure uncertain ownership or an overstated legal claim.

4. Make brand protection workable day to day

Give franchisees approved artwork and straightforward instructions for using it. Explain which variations need approval, who authorises them and how quickly requests will be considered. This helps prevent local advertising from gradually creating inconsistent versions of the brand.

Create a reporting route for suspected copying. Ask franchisees to preserve screenshots, dates and relevant correspondence rather than approaching another business with legal threats. Allocate responsibility for assessing the evidence, obtaining advice and deciding whether action is appropriate.

Treat ownership and protection as continuing responsibilities. Review the asset inventory when introducing a new logo, acquiring another brand or materially changing the products and services offered.

Practical takeaway: Before offering your first franchise, assemble an ownership file, check trade mark coverage and have the proposed brand licence reviewed alongside your disclosure document. Franchisees should receive clear, supportable rights—not assumptions about a familiar business name.