Protecting your brand before launching a franchise in Belgium

Your existing business has a recognisable name, loyal customers and a brand identity you want to share. But can you safely let independent franchisees use that name? Registration with Belgium’s Crossroads Bank for Enterprises, or ownership of a domain name, is not the same as trade mark registration. Anyone looking to build a franchise network should therefore start with a trade mark check. This helps prevent partners from investing in signage, packaging and advertising that later have to change.

1. Check what you own and what you can protect

Start by listing the distinctive elements of your business: its name, logo, any product names and a distinctive slogan. For each item, record who created it, who uses it and what agreements are in place.

A trading name and a trade mark are not the same thing. A trading name identifies your business and may gain protection through use. A registered trade mark protects a sign for specified goods or services within a particular territory. The precise scope of protection depends on factors including the sign itself, the registration and any earlier rights.

Next, check ownership. Is an existing trade mark registered in your own name, in the name of the operating company or in that of a former business partner? The future franchisor must either hold the necessary rights or have valid authority to grant franchisees the right to use the mark.

Do not overlook the designer either. Paying an invoice for a logo does not automatically mean that all copyright has been assigned to you. Make sure the rights you receive are documented, including use by franchisees and permission to modify the files.

Create a single record covering:

• the sign and its current version;
• the rights holder and supporting documents;
• any registrations and expiry dates;
• any missing permissions or assignments.

2. Check availability before recruiting franchisees

A name that has worked locally for years is not necessarily safe to use when expanding. An earlier trade mark owner may hold rights that you have not encountered while operating a single outlet.

Do not limit your search to identical names. Similar spellings, sounds and meanings can also matter, particularly for similar products or services. Check trade mark registers, trading names and actual use in the market. An available domain name does not prove that a name is legally available.

For protection in Belgium, a Benelux trade mark registered with the Benelux Office for Intellectual Property (BOIP) is a common route. This registration covers Belgium, the Netherlands and Luxembourg; there is no separate Belgian national trade mark registration. An EU trade mark registered with the European Union Intellectual Property Office (EUIPO) provides protection across the EU, but also requires a broader assessment of potential conflicts.

Choose the goods and services carefully. If, for example, you sell food products and run a food outlet, the descriptions of both activities need attention. Simply choosing a class relating to business advice or commercial support does not automatically protect the core activity of your franchise concept.

A highly distinctive name is generally easier to protect than a purely descriptive term. If in doubt, ask a trade mark attorney to assess availability, distinctiveness and your registration strategy. Do this before prospective franchisees incur costs for their outlets.

3. Make trade mark use workable through the contract

Registration alone does not govern day-to-day use. The franchise agreement must clearly state which trade mark the franchisee may use, for which activities, in which territory and for how long.

Set out specific arrangements for:

• Permitted use: external signage, workwear, packaging, websites and social media.
• Approval: which local advertising requires prior review and who makes the decision.
• Digital accounts: who registers and manages domain names and profiles, and who transfers them when the relationship ends.
• Infringement: to whom franchisees should report counterfeiting or confusing use, and who takes action.
• Termination: when the name, logo and other branding must be removed.

Also make clear who bears the cost if you change the visual identity. An unrestricted right to demand expensive new signage immediately can cause both legal problems and friction in the relationship.

Consider the practical arrangements too: store original logo files centrally, appoint someone to handle approvals and keep a register of authorised users. This helps maintain a recognisable identity without blocking every local initiative.

4. Align your trade mark rights with Belgium’s disclosure requirements

Belgium has no standalone law governing franchise agreements in their entirety. However, specific pre-contractual rules apply to commercial cooperation agreements, including franchising: Book X, Title 2 of the Belgian Code of Economic Law (WER). Other relevant rules include general contract law, trade mark law, competition law and the rules on unfair terms in business-to-business contracts.

Under Article X.27 of the Code, a prospective franchisee must receive the draft agreement and the pre-contractual disclosure document at least one month before entering into the agreement. Article X.28 specifies the information to be included, such as details of the relevant intellectual property rights and the rights of use being granted.

Make sure that what you tell prospective franchisees reflects the actual position. Do not describe a pending application as a completed trade mark registration. Disclose relevant restrictions and check whether your own licence allows you to grant franchisees rights of use. Work from the current legal requirements rather than simply relying on an old template.

Practical conclusion: only recruit under your intended franchise brand once availability, ownership and rights of use have been sufficiently clarified. A properly checked trade mark portfolio gives your franchise network a more reliable starting point.