Buying a franchise: how to check trade mark rights in Spain

The name on the sign may be familiar and the sales pitch convincing, but neither proves that you can legally use the trade mark. Before joining a franchise network in Spain, check exactly which trade mark you will be using, who holds the rights and what would happen if it became unavailable. This review protects an essential part of your investment: the identity you will use to attract customers.

1. Ask for the exact trade mark details

Receiving a logo or checking that a company with a similar name exists is not enough. A company name, an internet domain and a trade mark are distinct assets: having one does not, in itself, establish rights to the others.

Request a list of the trade marks your outlet will use, including:

• The name and, where applicable, a graphic representation.
• The application or registration number.
• The office with which it is registered.
• The current owner and the status of the application or registration.
• The goods and services covered.
• The registration expiry date.

If the proposal combines a name, a symbol and several trade marks, identify which ones are included in the contract. It is also important to distinguish a registered trade mark from a pending application: filing an application does not mean that registration has been granted.

2. Check protection in Spain and coverage for your business activities

Consult the official databases of the Spanish Patent and Trademark Office (OEPM) and, where relevant, the European Union Intellectual Property Office (EUIPO). An EU trade mark provides protection in Spain; a national trade mark registered only in another country is not enough. If the franchisor relies on an international registration, check that its protection extends to Spain, either directly or through the European Union, and verify its current status.

Search by application or registration number, not just by name. Compare the owner, the registered mark and the goods or services covered with what you will actually sell. The classes in the Nice Classification help organise this information, but the class number is no substitute for reading the specific list of goods and services.

For example, protection for particular goods does not automatically establish coverage for every service offered under the same name. Seek a specialist assessment if there are differences between the registration and the proposed business activities.

Spain’s Trade Marks Act, Law 17/2001, is the relevant Spanish legislation for national trade marks. EU trade marks are governed by Regulation (EU) 2017/1001. A register search is an initial check, not an absolute guarantee that there are no conflicting rights.

3. Check the franchisor’s rights

The franchisor does not necessarily have to own the trade mark: it may hold a valid licence instead. What matters is whether its rights allow it to authorise the use it is promising you.

In Spain, Article 62 of Law 7/1996 on Retail Trade and Royal Decree 201/2010 set out specific pre-contractual disclosure obligations. Article 3 of that decree requires evidence of ownership of the trade mark or a valid licence to use it in Spain. It also requires disclosure of any legal proceedings that could affect ownership or use and, in all cases, the duration of the licence.

This information must be provided in writing, truthfully and without being misleading, at least twenty working days before you sign the contract or preliminary agreement, or make any payment to the franchisor.

If another company is the registered owner, request documents that allow you to verify the authorisation and its limits. Do not assume that both companies belonging to the same group is sufficient.

4. Review the dates and agree what happens if problems arise

Compare the term of your contract with the remaining validity of the registration and, where applicable, the franchisor’s licence. These are separate periods. A registration falling due for renewal during your contract does not, in itself, indicate a problem, but you should clarify who will handle the renewal and how continued use will be secured.

Ask for the contract to specify:

• The franchisor’s obligation to maintain the necessary rights.
• How you will be notified of claims that could affect your outlet.
• Who will organise and bear responsibility for defending claims arising from authorised use.
• Who will pay to replace signage, packaging or materials if necessary.
• What remedies will be available if you can no longer operate under the agreed trade mark.

These safeguards need to be negotiated: do not assume that compensation is automatic. If you receive a claim, retain the documents and seek advice before admitting liability or changing the business’s branding.

Practical conclusion: before paying, obtain the registration details, evidence of the right to use the trade mark and contractual clauses protecting continued use. If any of these three elements is unclear, resolve it before committing your investment.