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Franchise - Commercial Symbol of the Franchisor?

Discussion in 'Intellectual Property Law Forum' started by RestlineA, 23 April 2017.

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  1. RestlineA

    RestlineA Member

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    Hi!

    I'm in the process of franchising. But now I have one problem.

    The law of franchising specified (1) A franchise agreement is an agreement:

    (a) that takes the form, in whole or part, of any of the following:

    (i) a written agreement;

    (ii) an oral agreement;

    (iii) an implied agreement; and

    (b) in which a person (the franchisor) grants to another person (the franchisee) the right to carry on the business of offering, supplying or distributing goods or services in Australia under a system or marketing plan substantially determined, controlled or suggested by the franchisor or an associate of the franchisor; and

    (c) under which the operation of the business will be substantially or materially associated with a trade mark, advertising or a commercial symbol.

    However, I don't understand and can't find what is meant by commercial symbol. It prevents me to create an agreement.


    I would be very grateful for help!
     
  2. Rob Legat - SBPL

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    In very basic terms it means that the franchise will operate under a single corporate identity. For example, McDonalds is a franchise and all McDonalds restaurants look practically the same - however they are (in part) all individual businesses run by franchisees. They are simply running under a 'trade mark, advertising or a commercial symbol'.
     
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  3. Tim W

    Tim W Lawyer
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    In short and simple, a "commercial symbol" is any kind of symbol
    (not just art, but including a word or a group of words) that identifes the business, product, brand etc,
    even if it's not a registered trademark.

    Franchising is full of traps for new players.
    The advice of a lawyer who specialises in franchising - in particular, assisting would-be franchisees,
    would be money well invested.
    And if you can't afford that, then you can't afford to be going into a franchise.
     
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  4. RestlineA

    RestlineA Member

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    Thank you!

    I'm sorry, but I still don't quite understand a couple of points. What is the difference between a trademark and a commercial character? In fact, a trademark can also be of art and the word/group of words. And what law governs commercial symbol and where can I find a legal definition of a commercial symbol?

    Thanks in advance for the answer!
     
  5. harryluther

    harryluther Well-Known Member

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    What is a Commercial symbol? Is it a logo of the company?
     
  6. Tim W

    Tim W Lawyer
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    It's any kind of symbol used in trade or commerce.
    This can include a company logo, certainly.
     
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