Trade Marks and Brand Rights Before Selling a Franchise

An established business may have recognisable signage, its own recipes and a successful website, but that does not necessarily mean it can grant a partner the right to use them. Before entering the franchise market, owners need to check who owns the key assets and how those assets may be used. This audit helps avoid a situation where a franchise has already been sold, but the partner cannot legally use part of the promised package.

1. Map your rights, rather than simply listing files

Start with the assets your future franchisee will use every day: the name on the signage, the logo, product photographs, interior design, software, recipes and technical documentation. For each asset, identify the owner, the supporting document, the duration of the rights and any restrictions on granting rights to others.

A useful working table should answer five questions:

• What exactly will the partner receive?
• Who holds the rights to this asset?
• Which document confirms those rights?
• Is use by an independent partner permitted?
• What needs to be done before the agreement is signed?

Pay particular attention to materials created by contractors. Paying for a logo or website does not, in itself, establish that all the necessary economic rights have been transferred. Review agreements with designers, photographers and developers: which rights have been granted, for how long, and may franchisees use the materials?

Assets held personally by a founder, by another company in the group or by a former employee present a separate risk. Do not assume they automatically belong to the company that intends to act as the rights holder. First, establish the legal basis for using them and subsequently granting the relevant rights to partners.

This stage should produce a list not only of assets but also of gaps: for example, a missing agreement with the photographer or a software licence that covers only your own outlets.

2. Distinguish between a trade mark and a company name

Belarus has no standalone franchising law, but franchise relationships are specifically regulated by its Civil Code. Article 910 provides for a comprehensive business licence agreement — the legal form used for franchising in Belarus. This arrangement involves granting the right to use a company name and undisclosed information; other intellectual property assets may also form part of the package.

A company name and a trade mark are distinct assets. A legal entity’s name does not replace protection for the sign by which customers recognise its goods or services. Registering a domain name or putting up signage is not equivalent to registering a trade mark either.

Trade mark protection is governed, among other legislation, by the Republic of Belarus Law on Trade Marks and Service Marks. Before preparing your franchise offering, check:

• whether the mark is protected in Belarus;
• who is listed as the rights holder;
• which goods and services the registration covers;
• whether the registered mark matches the one actually used;
• when the protection expires.

For example, registration for certain goods does not automatically protect all the services a company later starts providing. Your checks should reflect the future partner’s actual operating model, not just the owner’s core business.

If an application is still pending, do not present it to a prospective franchisee as a registration certificate. Explain its actual status and agree the steps to take with a specialist lawyer before granting any rights. A trade mark alone is not a substitute for the other elements required in the licence package.

3. Prepare undisclosed information for sharing

The commercial value of a franchise often lies in its knowledge: purchasing arrangements, technical parameters, methods for calculating capacity utilisation and other non-public solutions. But a folder marked ‘secret’ does not, on its own, provide effective protection.

Identify which information is genuinely not publicly available, has commercial value and requires restricted access. When putting a trade secret protection regime in place, take account of the Republic of Belarus Law on Trade Secrets. Owners cannot designate any information they choose as a trade secret.

To prepare for sharing information with a partner:

1. Draw up a specific list of the information to be protected.
2. Assign responsibility for storing and releasing materials.
3. Put confidentiality obligations in place for anyone given access.
4. Set up access controls and a system for recording document handovers.
5. Define procedures for returning or deleting information, and for maintaining confidentiality after the relationship ends.

Before signing the main agreement, disclose only as much information as the prospective franchisee needs. A confidentiality agreement is useful, but it does not replace organisational safeguards. The partner also needs to understand which information they may share with employees and on what terms.

4. Carry the audit findings through to the agreement and registration

Incorporate the verified list of rights into the draft agreement. Wording such as ‘we grant use of the brand’ is not enough: identify the assets and define the permitted uses, territory, duration and scope of use. For the trade mark, agree how it may be used on signage, packaging, in advertising and across digital channels.

Specify who approves new designs, monitors renewals of protection and handles third-party claims. Set out what will happen to signage, advertising materials and access permissions after the agreement ends. These issues are best resolved before the partner invests in fitting out the outlet.

Under Article 910-1 of the Civil Code, a comprehensive business licence agreement must be in writing and registered with the patent authority — the National Centre of Intellectual Property. Failure to meet the registration requirement renders the agreement invalid. Registering a trade mark does not replace registration of the franchise agreement.

Before signing, agree who will submit the documents, who will bear the costs and how any issues raised during registration will be addressed. Check the current document and registration requirements immediately before filing, rather than relying on old templates.

Practical takeaway: first confirm the rights to every asset you promise, then prepare your offer to the partner. For your first deal, put together a rights map, a list of protected information and an agreement reviewed with a Belarusian lawyer. This provides a sound foundation for trust within the franchise community.