Buying a franchise in Colombia: how to check the trade mark

Before paying to join a franchise network, check that the business offering the brand can authorise its use in Colombia. Attractive premises, a commercial registration or an overseas trade mark registration are not enough to prove this. These checks help you avoid committing money to signage, fit-outs and advertising that might later need changing because of an industrial property dispute.

1. Understand what protection you are paying for

When you buy a franchise, you do not acquire ownership of the trade mark: you receive permission to use it under certain conditions. You therefore need to check both the protection of the mark and the authority of the party granting that permission.

In Colombia, a franchise agreement is an atypical contract: there is no specific law comprehensively governing the relationship, nor a general obligation to provide a pre-contractual franchise disclosure document. The general rules of the Commercial Code and Civil Code apply, including duties of good faith, alongside any relevant specific legislation.

For trade marks, Andean Community Decision 486, which establishes the common industrial property regime, is central. Colombia’s Superintendency of Industry and Commerce (SIC) administers the country’s trade mark register. The absence of a specific franchise law does not mean that everything depends solely on the contract or that mandatory legal rules can be ignored.

The Ministry of Justice’s guidance on franchise agreements recommends checking the franchisor’s rights to the trade mark and other distinctive signs before entering into a contract.

2. Request the documentation and check it against SIC records

Ask for the documentation before making a non-refundable payment. At a minimum, request:

• The identity of the owner of each trade mark you will use.
• The application file number or registration certificate number.
• A reproduction of the protected mark: the name, logo or combination of both.
• The goods and services covered by the registration.
• The registration’s status, validity period and relevant renewal documentation.
• Information about oppositions, cancellation or invalidity proceedings, or disputes that could affect its use.

Then cross-check these details using the SIC’s public industrial property search service. Do not simply search for the trading name: examine the relevant file and keep dated evidence of your search.

A pending application is not the same as a granted registration. If protection is still pending, ask a lawyer to assess the risk and negotiate what will happen if the application is refused or requires changes to the brand identity.

Also check that the protected goods or services match the proposed business. A trade mark registered for particular goods does not automatically cover every activity. A matching class number is no substitute for examining the specific description and any potential earlier rights.

3. Check who can grant you a licence

The registered owner and the company signing the franchise agreement may be different parties. This is not necessarily a sign of anything improper, but it does mean you need to trace the chain of authorisations.

If the owner is signing, verify their identity and their representative’s authority. If a related company, licensee or master franchisor is signing, request the document allowing them to authorise use by third parties. A licence to use a trade mark does not necessarily include permission to sublicense it.

For a foreign trade mark, require evidence of protection effective in Colombia. Registration in the country of origin alone does not establish that protection.

Also check that the underlying authorisation lasts long enough to support your agreement. Ask what happens if it expires, is terminated early or the owner changes. A verbal promise of continuity is no substitute for an enforceable contractual obligation.

4. Reflect your findings in the contract and budget

The contract should identify the authorised trade marks, their permitted uses and both parties’ obligations. It is advisable to agree expressly:

• Who maintains the registrations and handles renewals.
• How third-party claims are reported and who coordinates the defence.
• Who bears the costs if signage, packaging or advertising materials need to be changed.
• What remedies you will have if you cannot use the trade mark as agreed.
• How the marks will be removed when the relationship ends.

Article 162 of Decision 486 provides for trade mark licences to be registered with the competent authority and states that unregistered licences have no effect against third parties. Licences must be in writing to be registered. With independent advice, agree who will handle this process and bear its cost; do not confuse it with mandatory registration of the franchise agreement itself.

There is no automatic refund of the franchise fee for every trade mark problem. Negotiate the conditions for refunds, corrective action or termination, and avoid clauses that indiscriminately shift all risks onto you.

Practical conclusion: before paying, obtain three things: evidence of trade mark protection in Colombia, evidence of the offering party’s authority to license it, and a contract that clearly allocates the consequences of losing the right to use it. If any of these is missing, resolve that issue before committing your investment.