Starting a franchise in Belgium: get your trade mark rights in order

A successful business often has a recognisable name and visual identity. But that does not necessarily mean you can safely allow franchisees to use that name. Before building a franchise network, you need to establish which trade marks you are protecting, who owns the rights and what use you can authorise. These checks prevent new business owners from investing in an identity whose legal foundations are uncertain.

1. Check what you have actually protected

A trading name, domain name and registered trade mark are not the same thing. Registering your business with Belgium’s Crossroads Bank for Enterprises does not replace trade mark registration. Nor does the availability of a web address prove that you can use the name as a trade mark without objection.

Start by taking stock of the names and signs your existing business uses:

• the name on your premises and quotations;
• the logo on packaging and staff uniforms;
• any names used for your own products or services;
• older versions that are still in use.

Next, check which of these are covered by trade mark applications or registrations. Options for protection in Belgium include a Benelux trade mark through the Benelux Office for Intellectual Property and an EU trade mark through the European Union Intellectual Property Office. The Benelux Convention on Intellectual Property provides the basis for Benelux trade mark law; EU trade marks are governed by the EU Trade Mark Regulation.

Look beyond the name itself to the goods and services covered by the registration. A registration does not automatically protect every activity you later add to your franchise concept. You should also have checks carried out to establish whether earlier rights in similar marks could pose a problem. A simple search for an identical name is not always enough.

2. Establish a clear chain of rights

In an established business, trade mark ownership arrangements may have evolved over time. The founder may personally own the trade mark while a company operates the business. Alternatively, the mark may still be registered in the name of a previous business. This does not necessarily rule out franchising, but you must be able to demonstrate your authority to grant usage rights.

For each trade mark, record at least:

• the registered owner;
• the registration number and territory covered;
• the goods and services protected;
• its status and next renewal date;
• the basis on which the franchisor is entitled to use and license the trade mark.

If the franchisor does not own the trade mark, have its licence checked to confirm that it actually permits the granting of usage rights to franchisees. Also examine what happens if that underlying licence ends. A franchisee should not become dependent on a right that could lapse without their knowledge.

Check your agreement with the designer of your logo as well. Paying a design invoice does not automatically mean that all copyright has been transferred. Make sure the agreed rights cover the intended use across your franchise network, including reproduction on premises, websites and packaging.

3. Turn your trade mark rights into clear rules for use

The franchise agreement must reflect the rights you actually hold. Avoid a blanket promise that the franchisee may use ‘all trade marks associated with the franchise concept’ if it is unclear which marks this means.

Use a clearly identifiable list of permitted trade marks. Specify the activities, territory and period for which their use is authorised. Also make clear whether the franchisee may display the trade mark on their own social media accounts, local websites, vehicles and invoices.

Agree who will approve new branded materials and who will act in cases of suspected trade mark infringement. A local business owner who discovers a very similar business needs a point of contact for reporting it. They should not take uncoordinated legal action on behalf of the trade mark owner.

Also set out what happens when the right to use the mark ends: removing signage, updating digital profiles and dealing with remaining branded packaging. Keep these arrangements specific and practical. Protecting a trade mark requires not just prohibitions, but a workable procedure for both parties.

4. Align trade mark details with Belgium’s disclosure requirements

Belgium has no single, comprehensive franchise law, but commercial cooperation agreements are subject to specific pre-contractual rules under Book X, Title 2 of the Code of Economic Law. General contract law and trade mark law are also relevant, among other areas of law.

Under Article X.27 of the Code of Economic Law, the prospective franchisee must receive the draft agreement and a separate pre-contractual disclosure document at least one month before entering into the agreement. Article X.28 sets out the required contents of that document, including details of the intellectual property rights whose use is being authorised.

Make sure the trade mark details in that document match the registers and the agreement. Do not present a pending application as a completed registration. Have any restrictions, licences or relevant proceedings legally assessed before promising usage rights.

Practical conclusion: first gather your registration certificates, check the chain of rights and only then draft the trade mark licence for franchisees. This will help you build a franchise network around an identity that is not only recognisable, but also legally sound.