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Best Practices in Protecting and Enforcing Trademarks, Copyrights and other IP

Trademarks, copyrighted works, trade secrets and proprietary business information form the core of any franchise system, and are frequently a company’s most valuable assets. Trademarks, including service marks, logos, slogans and trade dress, define the brand identity as presented to the public. The “behind the scenes” business know-how on which the system is built and implemented by franchisees is embodied in a variety of copyrighted and proprietary works – operations manuals, proprietary processes, recipes and formulas, custom software, advertising copy to name a few.

Obtaining, maintaining and enforcing legal protections for these intellectual property interestsisof critical importance to all franchise operations. Following are some best practices to maximize your legal protection.

  • Register all trademarks with the US Patent and Trademark Office for all goods and services your business offers.
  • Monitor your trademarks as used on the Internet, in competitors’ advertisements, in publications and other media, and take prompt enforcement action against unauthorized users.
  • Register domain names for all of your trademarks, including common misspellings and variations, and registerdomain names if available for names describing the products and services your business offers.
  • Place copyright notices on manuals, customized software and other proprietary business materials.
  • File copyright registrations with the U.S. Copyright Office for important works that are likely to be copied by competitors.
  • Place prominent confidentiality notices on important internal business documents, operations manuals, and other proprietary information.
  • Have your key officers and employees, as well as franchisees and their managers, sign confidentiality and non-compete agreements.
  • Obtain written work for hire / copyright assignment agreements from all outside firms such as software developers, consultants, advertising agencies and design firms that produce any creative works for your business.

The last point is commonly overlooked, but it is a practice that every business must take. If you adopt only one practice as a result of reading this article, it should be this. Without written work for hire / copyright assignment agreements, your business will not have ownership of the copyrights to creative works your company has hired outside firms to produce. You will instead have only limited rights to use the works, and the outside firm will retain rights to use the works for others, including your competitors.

While this is not an exhaustive list, it is a good starting point to evaluate your current procedures. Franchisors that follow these practices will have taken the basic steps needed to secure legal protection for key intellectual property assets.

- James A. Wahl Monroe Moxness Berg P.A.

Franchise Disclosure Documents For Dummies – Part 1

To begin my new weekly column for FranchiseHelp.com I will be writing a series of articles covering some basics and need-to-know information for each of the twenty-three Items of the Franchise Disclosure Document (“FDD”). I will try to be as non-technical as possible, and will try to provide insight and information that is useful for both franchisors and prospective franchisees. Nine weeks from now, you may have a slightly better understanding of the core elements of the FDD.

Where Is The Best Location To Open Your Franchise?

One critical factor to consider when you are thinking about opening a franchise is whether your location is suited for a franchise and which franchise suits your area the best. One thing that makes this consideration slightly easier is the notion of franchise territories. Most, but not all, franchises in the US are set up so that they grant exclusive territorial franchise rights to their franchisees to help prevent the issue of geographic competition.

What To Negotiate in the Franchise Agreement

Before going into the negotiating aspect, one must always ask the franchisor whether they are willing to negotiate. Usually franchisors state that they have a rigid Franchise Agreement and that it is not open to negotiating. However, there may be some instances where the franchisor may allow some flexibility. Stated below are a few tried and tested tips for negotiating franchise agreements and which areas to concentrate one’s efforts on.