How to Check Trademark Rights Before Franchising in India

When turning a successful shop into a franchise, it is easy to assume that you can let others trade under the same name. But using a name, owning it and having the right to authorise others to use it are separate matters. Check these rights before expanding your franchise network, so that partners do not invest in a brand whose rights are unclear.

1. List the brand assets and identify their actual owners

Start by listing the brand identifiers that franchise partners will use: the business name, logo, distinctive product names and any distinctive slogan. Checking only the main shop name is not enough. The scope of protection for a word mark may also differ from that of a graphic logo.

For each mark, record its owner, application or registration number, relevant goods or services, and current status. Then compare the owner named in the documents with the person or entity that will enter into the franchise agreement.

For example, the trademark may be held in the founder’s personal name, while a company grants the franchise. In that case, the company needs a written document granting it the relevant rights. Simply saying that the same person owns both does not establish the full chain of rights. Check previous assignments, name changes and related permissions as well.

2. Check registration status and the scope of protection

The principal law governing trademark protection in India is the Trade Marks Act, 1999. Registering a company name, obtaining a website address or securing a local trading permit does not, by itself, amount to trademark registration. Likewise, do not describe a filed application as a registered trademark.

Check official trademark records and available documents to confirm whether the application is pending, subject to an objection or opposition, or registered. For registered marks, check the renewal status too. Registration lasts for ten years and can be renewed. Assign someone responsibility for tracking renewal deadlines.

Your checks should include these questions:

• Do the listed goods and services cover the proposed franchise activities?
• Are identical or confusingly similar names already in use?
• Has the owner received any objections, oppositions or legal notices?
• Is another business in the proposed city an earlier user of the same brand identity?

Depending on the circumstances, an unregistered mark may also be protected against passing off—where another business presents its goods or services as those of the brand owner. Even so, registration and prior users’ rights need separate assessment; do not rush to claim exclusive rights to a name.

3. Confirm the right to grant sublicences

If the business does not own the trademark but uses it under a licence from another person or entity, read the original licence. Permission to use a brand yourself does not necessarily include the right to authorise independent franchise partners to use it.

Check the written terms to establish whether sublicensing is permitted, which activities and locations it covers, and how long the permission lasts. If separate consent from the owner is required, obtain it before granting franchise rights.

Compare the term of the franchise agreement with that of the underlying licence. If the underlying rights could expire sooner, do not promise uninterrupted use of the brand for a longer period. Decide in advance what will happen to the franchise partner if the underlying licence expires, changes or is withdrawn.

4. Set out trademark permissions clearly in the agreement

India has no dedicated franchise law, mandatory national franchise code of conduct, or franchise-specific registration and pre-sale disclosure regime. This does not make checks on brand rights optional. The Indian Contract Act, 1872 governs the agreement, trademark law governs the brand, and competition, tax and other general laws apply according to the arrangement.

List the permitted marks and their actual status in a schedule to the agreement. Make clear that the partner receives a limited right to use them, not ownership. Specify whether the permission covers uses such as shop premises, packaging, local advertising and digital accounts.

Set out rules on altering the logo, adding a local name, applying for a similar trademark in the partner’s own name, and allowing third parties to use the marks. Include quality controls and a process for correcting improper use. Written permission and compliance with the agreed conditions are important; it is not automatically mandatory for every franchise partner to become a registered user at the Trade Marks Registry. Seek specialist advice on the appropriate arrangement.

5. Decide whether to expand if rights issues arise

Create a short checklist recording each issue, who will resolve it and what evidence will demonstrate that it has been resolved. If ownership is unclear or sublicensing permission is missing, hold off on promising brand rights until the issue is corrected. Give partners an accurate account of any pending application; do not guarantee approval.

Allocate responsibility for notifying the other party of third-party claims, preparing responses and managing any potential name change. Also clarify who will pay for replacement signage, packaging and digital materials.

Practical takeaway: Before granting your first franchise, have evidence ready on three points: who owns the brand, its actual protection status, and the basis of your right to authorise a partner to use it.