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This weekend‚ driving back to New York from an an exceptional legal conference in Virginia‚ my partners and I came across one of my childhood heroes (maybe not really a hero but a pretty cool guy): “Bob’s Big Boy”. Meeting up with “Big Boy” reminded me‚ once again‚ of the critical importance of trademarks and trade dress to a franchise system. By the way “Bob’s Big Boy” is a registered trademark of Big Boy Restaurants International‚ LLC.

For the prospective franchisor who would like to start a franchise or believes that franchised expansion may be in the future of his or her business‚ it is critical that you evaluate and protect your trademarks now. Why is this so important? Because trademarks and trade dress are one of the most fundamental and critical assets of a franchise system. So‚ well before you start a franchise (where you will be licensing your trademarks to franchisees) make sure that you consult with a franchise lawyer or trademark lawyer (even if you are years away from starting a franchise) and evaluate the following factors:

  • Are your trademarks legally protectable? Among many other factors‚ your trademarks must go beyond “descriptive” terms and involve unique terms that have become associated with your business.
  • Does your Trademark Actually Infringe on the Mark of a Third Party? It is quite possible that the mark you are using may actually infringe on the trademarks and intellectual property of a competitor. Even if you never heard of the third-party competitor‚ depending on issues involving State and Federal trademark registration‚ your use of a trademark in one state‚ i.e.‚ New Jersey‚ may actually infringe on the registered marks of an unknown competitor in California.

These points apply for any successful business – even if you never intend to start a franchise. The process for evaluating and registering your trademarks is not a complex process and may be accomplished cost effectively by a business and franchise lawyer. Before you even contact a lawyer‚ you can conduct a basic and preliminary trademark search on your own by visiting the website of the United States Patent and Trademark Office (Click on the “Trademarks” Tab and then “3. Search TM Database”).

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By Charles Internicola December 12, 2014

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