Co-Branding Agreement Checklist: Ownership, Approvals, Term, and Exit

By Casey Scott McKay · 2024-07-15

A co-branding deal fails in the same four places every time: nobody said who owns what the collaboration creates, the approval clause has no clock, exclusivity was never defined, and the exit was drafted in one sentence. This checklist walks the whole arrangement in eight phases, from characterizing the deal and diligencing the partner through the specification exhibit, the lock-up library, claims and reputation, liability and insurance, the economic terms, and the exit. Each box carries the reason it exists, the authority behind it, and the trap that catches people who skip it. It is written for the lawyer papering the deal and for the brand manager who has to live inside the document afterward. Work it in order, because the later phases assume the earlier answers. The companion article and guide supply the doctrine and the drafting sequence.

IP and Technology > IP and IT in Corporate Transactions | Checklist | Published 15 July 2024 - Updated 25 September 2024 | Casey Scott McKay - marksy.us

Summary. A co-branding deal fails in the same four places every time: nobody said who owns what the collaboration creates, the approval clause has no clock, exclusivity was never defined, and the exit was drafted in one sentence. This checklist walks the whole arrangement in eight phases, from characterizing the deal and diligencing the partner through the specification exhibit, the lock-up library, claims and reputation, liability and insurance, the economic terms, and the exit. Each box carries the reason it exists, the authority behind it, and the trap that catches people who skip it. It is written for the lawyer papering the deal and for the brand manager who has to live inside the document afterward. Work it in order, because the later phases assume the earlier answers. The companion article and guide supply the doctrine and the drafting sequence.

Keywords: co-branding agreement, joint venture trademark, shared marks, ingredient branding, lock-up, quality control, naked licensing, approval rights, exclusivity, term and termination, wind-down, sell-off period, joint ownership, brand collaboration, trademark license, co-branded product, exit provisions, reputational trigger, change of control, brand partnership

How to use this checklist

| Phase | What it covers | Who owns it | When | |---|---|---|---| | 1 | Characterize the deal and pick the structure | Deal lawyer | Term sheet | | 2 | Partner diligence | Deal lawyer + brand | Before drafting | | 3 | Ownership of everything the deal creates | Deal lawyer | Before drafting | | 4 | The specification exhibit and quality control | Product + legal | Drafting | | 5 | The lock-up library and the approval clause | Brand + legal | Drafting | | 6 | Claims, endorsement, and reputation | Regulatory + legal | Drafting | | 7 | Liability, recall, and insurance | Risk + legal | Drafting | | 8 | Economics, exclusivity, governance, and exit | Deal lawyer | Drafting to signature |

Work the phases in order. Phase 3 in particular is a gate: an arrangement that will create a new mark should not proceed to drafting until ownership is settled, because the question gets harder every week closer to launch. Boxes marked [Gate] should be cleared before the next phase begins.

A worked matter runs through the checklist. Two companies — Hollowell, an outerwear brand, and Verrin, a maker of a proprietary insulation — want to launch a jacket line marketed as Hollowell with Verrin. The draft they brought to counsel was eight pages. The boxes below show what each phase turned up.

The matter. Verrin supplies the insulation. Hollowell manufactures and sells the jacket. Both marks appear on the hangtag, the label, the point-of-sale display, and the campaign. Nobody had asked who owns the lock-up, what happens if Verrin supplies a competitor, or what the retailer is told when the deal ends.

Phase 1. Characterize the deal and pick the structure

[ ] Identify which party makes the product, which sells it, and whose customer the buyer is.
- Why. Every allocation downstream — control, liability, claims, channel — follows from these three answers, and parties often disagree about them without realizing it.
- Authority. The quality-control obligation attaches to the party whose mark identifies the source, which the statutory definition of a trademark makes a question of what consumers understand. See 15 U.S.C. § 1127.
- Trap. "It's a partnership, we'll figure it out" produces a document that allocates nothing, and a dispute in which each party says the other was responsible for the defect.
[ ] Select the structure: reciprocal license, ingredient brand, joint venture entity, or promotional tie-in.
- Why. The four structures have different ownership defaults, different tax and antitrust profiles, and different exits.
- Authority. See Two Brands, One Product for the comparison.
- Trap. Choosing a joint venture entity because it sounds equal, then discovering that dissolving it takes a year and requires unanimous consent.
[ ] [Gate] Decide whether the arrangement creates a new mark, and if so, stop here and go to Phase 3.
- Why. A new mark is a new asset with an owner, and deferring that question is the single most expensive mistake in this area.
- Authority. Joint ownership of a mark is possible but disfavored in practice; each co-owner may use the mark without accounting, which makes control illusory. See 15 U.S.C. § 1051; see also Whose Brand Is It.
- Trap. Filing an application in whichever party's name the paralegal happened to have on file. An application filed by a party that is not the owner is void ab initio. See /search?q=void+ab+initio+trademark+application+wrong+owner.
[ ] Confirm the arrangement is not an accidental franchise.
- Why. A trademark license plus significant control plus a required payment can satisfy the FTC Franchise Rule regardless of what the parties call it, and the consequences — disclosure obligations, state registration, rescission exposure — are severe.
- Authority. 16 C.F.R. Part 436; see When a Trademark License Becomes a Franchise.
- Trap. Assuming the analysis only applies to restaurants.
[ ] Run a quick antitrust sanity check where the parties are actual or potential competitors.
- Why. Exclusivity, territorial allocation, and pricing coordination between competitors carry risk that a vertical arrangement does not.
- Authority. 15 U.S.C. § 1.
- Trap. Treating "we're partners on this product" as an answer to "you're competitors everywhere else."
[ ] Name the deal team on each side with stated authority.
- Why. Negotiations stall when the person answering emails cannot decide anything.
- Trap. Discovering at week six that the partner's brand lead needs board approval for the exclusivity term.

Hollowell/Verrin, Phase 1. Ingredient brand, not a joint venture. Hollowell makes and sells; Verrin supplies and lends an attribute. No new mark — Hollowell with Verrin is a lock-up of two existing marks, not a third mark, and the parties confirmed in writing that neither would apply to register it. That decision took an hour and saved the deal a month.

Phase 2. Partner diligence

[ ] Verify the partner owns the marks it is licensing, in the classes and jurisdictions in play.
- Why. A partner cannot grant what it does not own, and chain-of-title breaks are common where a mark has moved through an asset sale.
- Authority. Assignments must be recorded to defeat a subsequent bona fide purchaser. 15 U.S.C. § 1060. See Trademark Due Diligence Checklist.
- Trap. Relying on the partner's brand book instead of the register.
[ ] Check for encumbrances: existing exclusive licenses, security interests, consents, and coexistence agreements.
- Why. An existing coexistence agreement can prohibit exactly the category the co-brand targets, and a prior exclusive license can make the grant impossible.
- Authority. Security interests in trademarks are recorded with the USPTO and searchable. 37 C.F.R. § 3.11.
- Trap. Finding the coexistence agreement in discovery two years later.
[ ] Confirm the partner's registrations are alive and its specimens are sound.
- Why. A registration vulnerable to expungement or reexamination is a weak foundation for an exclusivity payment.
- Authority. 15 U.S.C. § 1066a; 15 U.S.C. § 1066b. See Cleaning the Register.
- Trap. Paying for exclusivity in a class the partner never actually used.
[ ] Search the partner's litigation and enforcement history.
- Why. A partner with a history of aggressive enforcement against parties adjacent to your category is a different risk than one without.
- Trap. Learning about the pending opposition from a press release.
[ ] Assess reputational and regulatory exposure.
- Why. Co-branding transfers reputation in both directions, and a partner under investigation is a liability that no indemnity fully cures.
- Trap. Doing the brand-fit study and skipping the regulatory check.
[ ] Confirm the partner's insurance is real and adequate.
- Why. An indemnity from an uninsured counterparty is a promise, not a protection.
- Authority. See Who Pays for the IP Lawsuit.
- Trap. Accepting a certificate without checking limits, exclusions, or additional insured status.

Hollowell/Verrin, Phase 2. The register showed Verrin's mark registered in the correct class, but the recorded owner was a predecessor entity from a 2019 asset purchase, with no recorded assignment. Verrin recorded the assignment before signing. Total cost: a filing fee and two weeks. Cost if discovered in litigation: considerably more.

Phase 3. Ownership of everything the deal creates

[ ] [Gate] Settle ownership of any new mark before drafting anything else.
- Why. It is the hardest question, and it becomes non-negotiable once a launch date exists.
- Authority. 15 U.S.C. § 1051; 15 U.S.C. § 1055 (use by a related company inures to the owner).
- Trap. Joint ownership by default. Prefer sole ownership by one party with a license to the other, plus an agreed disposition on termination.
[ ] Allocate ownership of the lock-up as a composite.
- Why. The composite is a derivative work of two marks and a design, and someone drew it.
- Trap. Assuming the lock-up belongs to whoever's agency produced it. It belongs to whoever the agreement says, and to the agency if nobody said.
[ ] Allocate ownership of the marketing creative, photography, and copy.
- Why. Copyright vests in the author absent a written work-made-for-hire or assignment, and campaign assets outlive campaigns.
- Authority. 17 U.S.C. § 201; see Transfers, Licenses, and Termination Rights.
- Trap. The photographer's contract with the agency says one thing and the co-branding agreement says another.
[ ] Allocate ownership of jointly developed product IP, including any patentable improvement.
- Why. Joint inventorship carries the same accounting-free exploitation default as trademark co-ownership and is equally unpleasant.
- Authority. 35 U.S.C. § 262.
- Trap. Silence, which produces joint ownership by operation of law.
[ ] Allocate ownership of the customer data and the campaign's digital assets.
- Why. Handles, domains, ad accounts, and list data are the assets people fight over at termination.
- Authority. See Who Owns the Data; Domain Name and Digital Identity Toolkit.
- Trap. A campaign social handle registered by a junior marketer on a personal email address.
[ ] Confirm that any registration filed for the arrangement names the correct owner.
- Why. A void application cannot be fixed by amendment.
- Authority. 37 C.F.R. § 2.71.
- Trap. Filing in the joint venture's name before the entity exists.

Hollowell/Verrin, Phase 3. No new mark. The lock-up: owned by Hollowell, which commissioned it, with a perpetual license to Verrin for portfolio and case-study use and a covenant not to use it commercially after termination. Campaign photography: owned by Hollowell, with Verrin licensed for its own channels during the term plus twelve months. Ten minutes of drafting; the alternative was a dispute over a photo library.

Phase 4. The specification exhibit and quality control

[ ] Draft a specification exhibit with measurable criteria, not adjectives.
- Why. "Commercially reasonable quality standards" is not a standard, and a license without real control risks abandonment of the licensed mark.
- Authority. Uncontrolled licensing can forfeit rights. 15 U.S.C. § 1127; see Naked Licensing.
- Trap. Copying the quality clause from a distribution agreement that never contemplated a shared mark.
[ ] Specify the testing protocol, acceptance criteria, and who performs the testing.
- Why. A specification without a test is unenforceable in practice.
- Trap. Naming a standard nobody can afford to run at volume.
[ ] Grant inspection and audit rights with notice, frequency, and cost allocation.
- Why. Documented inspection is the evidence that quality control was real.
- Authority. See Trademark License Quality Control Checklist.
- Trap. Rights that are never exercised. Calendar them.
[ ] Set a defect reporting and cure procedure with deadlines.
- Why. The gap between discovering a defect and stopping shipment is where recalls become expensive.
- Trap. A cure period with no stop-ship obligation during cure.
[ ] For ingredient branding, specify incorporation requirements and minimum content.
- Why. The ingredient mark communicates a promise about how much and how used.
- Trap. A partner that reduces the ingredient content to hit a price point, with the mark still on the label.
[ ] Require records retention and make records available on termination.
- Why. Quality-control evidence has to survive the relationship.
- Trap. A partner that deletes the test data ninety days after termination.

Hollowell/Verrin, Phase 4. Exhibit B specified insulation weight in grams per square meter, distribution zones, a named thermal test with an acceptance range, and per-run certification. Verrin got two audits a year at its own cost on ten days' notice. Hollowell got a ten-business-day defect reporting obligation both ways with a thirty-day cure and a stop-ship during cure.

Phase 5. The lock-up library and the approval clause

[ ] Produce a lock-up library covering every substrate before drafting the approval clause.
- Why. Approving a library once is faster than approving assets one at a time forever, and it removes most of the friction that kills these relationships.
- Trap. A library that covers packaging and forgets the retailer's website module, the trade show booth, and the email footer.
[ ] Specify relative size, placement, clear space, color values, permitted variants, and prohibited treatments.
- Why. Relative prominence is the whole negotiation in a co-brand, and it should be resolved in a visual exhibit rather than in adjectives.
- Trap. "Equal prominence," which means nothing on an irregular package.
[ ] [Gate] Put a clock on approvals with a deemed-approval default.
- Why. An approval right with no deadline is a veto, and a veto exercised by silence is the most common operational failure in co-branding.
- Trap. Ten business days with "approval shall not be unreasonably withheld" but no deemed approval. Silence is not withholding, and the clause does nothing.
[ ] Tie the reasonableness standard to the library, and name the escalation contacts.
- Why. A reasonableness standard anchored to a written exhibit is enforceable; an abstract one is an invitation to argue.
- Trap. No escalation path, so a disagreement between two brand managers stops a print run.
[ ] Address who may enforce against third-party misuse of the lock-up, and who pays.
- **Why. **Neither party alone owns the composite, and infringement of it implicates both.
- Authority. 15 U.S.C. § 1114; 15 U.S.C. § 1125. See Global Brand Enforcement Toolkit.
- Trap. Both parties assuming the other will handle the counterfeits.
[ ] Allow the governance committee to amend the library without amending the agreement.
- Why. Design evolves; a formal amendment for a new hangtag size is friction nobody will tolerate.
- Trap. An amendment clause requiring signatures from both general counsel.

Hollowell/Verrin, Phase 5. Exhibit C ran to fourteen pages across nine substrates. Uses drawn from the library required no approval; novel uses got ten business days and deemed approval, with reasonableness measured against Exhibit C, and named contacts on both sides with a five-day escalation meeting.

Phase 6. Claims, endorsement, and reputation

[ ] Build a claims and substantiation index naming the responsible party for each claim.
- Why. Advertising substantiation obligations do not disappear because two brands share the label.
- Authority. 15 U.S.C. § 45; see False Advertising Under the Lanham Act.
- Trap. A performance claim about the ingredient, substantiated by nobody, printed on a hangtag by the brand that did not test it.
[ ] Confirm each party's right to make the claims it wants and to indemnify for them.
- Why. A competitor's false advertising suit will name both parties.
- Authority. 15 U.S.C. § 1125(a)(1)(B); see Bringing and Defending a Lanham Act False Advertising Claim.
- Trap. An indemnity that covers trademark infringement but not advertising claims.
[ ] Address endorsement and testimonial rules if the arrangement uses creators or talent.
- Why. Disclosure obligations attach to material connections, and a co-branding relationship is one.
- Authority. 16 C.F.R. Part 255; see Building an Influencer and Endorsement Compliance Program.
- Trap. Each party assuming the other's agency handled disclosures.
[ ] Draft a reputational trigger with objective criteria.
- Why. A general material-breach clause does not reach conduct that is embarrassing but not a covenant breach.
- Trap. "Conduct that brings the other party into disrepute" with no objective anchor, which is unenforceable in practice and produces a standoff.
[ ] Agree the crisis communication protocol in advance.
- Why. The worst time to negotiate who speaks is during the incident.
- Trap. Two press releases with inconsistent facts.
[ ] Check the regulated-industry overlay where one applies.
- Why. Financial, healthcare, food, and supplement products carry approval, filing, and labeling obligations that attach to the regulated party regardless of whose brand is on the front.
- Authority. See Clearing and Launching a Financial Services Brand; Clearing a Pharmaceutical or Device Brand Name.
- Trap. A consumer-brand partner that treats regulatory review as optional creative feedback.

Hollowell/Verrin, Phase 6. Exhibit F listed six claims. Verrin owned substantiation for the two thermal claims and indemnified for them; Hollowell owned the four construction claims. The reputational trigger was defined as a criminal charge against a senior officer, a regulatory enforcement action, or a product safety recall — objective events, not vibes.

Phase 7. Liability, recall, and insurance

[ ] Allocate product liability by cause, not by party.
- Why. A defect in the ingredient and a defect in the assembly are different failures with different responsible parties.
- Trap. A flat allocation to the manufacturer, which leaves the ingredient supplier's defect uncovered.
[ ] Draft the recall provision: who decides, who executes, who pays, and how fast.
- Why. Recalls are time-critical and expensive, and a joint decision requirement guarantees delay.
- Trap. Requiring mutual agreement to initiate a recall.
[ ] Require additional insured status, not just a certificate.
- Why. An indemnity is worth what the indemnitor can pay; additional insured status reaches the policy.
- Authority. See IP Insurance and Risk Transfer Toolkit.
- Trap. A certificate that names the wrong entity or lapses mid-term with no notice obligation.
[ ] Confirm advertising injury coverage reaches the co-branded activity.
- Why. Trademark and advertising claims arising from the collaboration are exactly what that coverage is for, and exclusions vary.
- Authority. See Who Pays for the IP Lawsuit.
- Trap. A prior-publication exclusion that swallows a campaign that ran before the policy incepted.
[ ] Set indemnity procedure: notice, control of defense, settlement consent, and cooperation.
- Why. Most indemnity fights are about procedure, not scope.
- Trap. Two indemnities with inconsistent defense-control provisions.
[ ] Cap and carve out consequential damages consistently across the document.
- Why. A cap in the body that the indemnity ignores is a drafting error each party will read its own way.
- Trap. Copying a cap from a services agreement with different economics.

Hollowell/Verrin, Phase 7. Liability allocated by cause with a joint defense obligation for mixed claims. Recall: either party may initiate on written notice; costs follow cause after the fact; no mutual-consent requirement. Both parties named as additional insureds with a thirty-day notice of cancellation.

Phase 8. Economics, exclusivity, governance, and exit

[ ] State the fee structure with a defined royalty base.
- **Why. **"Net sales" without a definition is the most litigated phrase in licensing.
- Trap. A base that permits unlimited deductions for marketing allowances.
[ ] Set audit rights over the royalty calculation, with a fee-shift for material underreporting.
- Why. An audit right without a consequence is not exercised.
- Trap. An audit window shorter than the reporting lag.
[ ] Define exclusivity by category, territory, channel, and time — each expressly.
- Why. Exclusivity means four different things and parties routinely agree to different ones.
- Trap. "Exclusive in our category," where the category is undefined and the partner's next deal is adjacent.
[ ] Name the excluded competitors on a schedule, with an amendment mechanism.
- Why. A named list resolves in one page what an abstract definition will not resolve in ten.
- Trap. A static list that never contemplates the partner's acquisition of a competitor.
[ ] Tie exclusivity to performance minimums, with conversion rather than termination as the remedy.
- Why. Exclusivity the buyer does not earn is value the seller gave away.
- Trap. A minimum with no consequence.
[ ] Establish a governance committee with named members, a meeting cadence, and a deadlock mechanism.
- Why. Operational disagreements need a forum that is not the notice provision.
- Trap. A committee with no tiebreak, which converts every disagreement into a standoff.
[ ] Set the term with affirmative renewal, not automatic renewal.
- **Why. **Automatic renewal outlives the business rationale, and the party that wants out discovers the notice deadline passed.
- Trap. Evergreen renewal with a ninety-day notice window nobody calendars.
[ ] Enumerate termination events: breach with cure, insolvency, reputational trigger, change of control, and failure to meet minimums.
- Why. Absent an express change-of-control right, the agreement continues with the acquirer, who may be your competitor.
- Authority. See When Your Licensor Goes Bankrupt; 11 U.S.C. § 365.
- Trap. A trademark license that assumes rejection in bankruptcy terminates it. It does not necessarily. See Protecting a Trademark License Against Insolvency.
[ ] [Gate] Draft the wind-down: notice period, sell-off cap, inventory certification, and materials disposition.
- Why. Inventory in the channel on termination day is the practical problem, and an uncapped sell-off is a license to overproduce.
- Trap. A sell-off period with no sworn inventory, which becomes an unlimited license.
[ ] Specify what happens to the digital assets, the customer data, and the campaign creative.
- Why. These are the assets nobody thought to allocate and everybody wants.
- Trap. A handle with the partner's name in it, controlled by the other party.
[ ] Agree the termination communication to retailers, distributors, and consumers.
- Why. An uncoordinated announcement damages both brands and invites claims.
- Trap. One party announcing a "strategic evolution" while the other says nothing.
[ ] List the surviving provisions and check they are internally consistent.
- Why. Confidentiality, indemnity, insurance, and the quality standards must survive through the sell-off, or the sell-off is a naked license.
- Authority. 15 U.S.C. § 1127.
- Trap. A survival clause that omits the quality exhibit, which is the one that matters most during wind-down.
[ ] Confirm every exhibit referenced in the body actually exists at signature.
- Why. "Exhibit B to be agreed" defers the obligation that is the point of the document.
- Trap. Signing with three exhibits outstanding because the launch date moved up.

Hollowell/Verrin, Phase 8. Three-year term, affirmative renewal ninety days out, no evergreen. Exclusivity in technical outerwear in North America, defined by a product-type schedule, with named excluded parties, converting to non-exclusive on two consecutive quarters below minimum. One-hundred-eighty-day wind-down; sell-off capped at a sworn inventory delivered within fifteen days; quality standards surviving through the sell-off. The document went from eight pages to thirty-five with eight exhibits, and the negotiation took six weeks.

Phase 9. Special situations

Six variants change the drafting enough to deserve their own boxes. Work the ones that apply.

Ingredient branding with a certification component.

[ ] Confirm whether the ingredient mark is a trademark or a certification mark, because the rules differ.
- Why. A certification mark owner may not use the mark on its own goods and must control certification without discriminating among applicants who meet the standards.
- Authority. 15 U.S.C. § 1054; 15 U.S.C. § 1064(5).
- Trap. Treating a certification mark as an ordinary license and granting exclusivity, which the owner cannot lawfully do.
[ ] Where the ingredient mark carries a published standard, incorporate the standard by version number.
- Why. Standards get revised, and a floating reference changes the obligation without anyone agreeing to it.
- Trap. "As amended from time to time," which converts a specification into a moving target.

Retailer private label with a national brand.

[ ] Address whether the national brand's mark appears at all, and in what prominence relative to the retailer's.
- Why. The economics of private label depend on this, and so does the confusion analysis.
- Authority. 15 U.S.C. § 1114.
- Trap. A house brand designed to look like the national brand, which is a trade dress problem, not a co-branding deal. See Trade Dress and the Functionality Doctrine.
[ ] Confirm the retailer's shelf placement and merchandising obligations are stated, not assumed.
- Why. The brand partner is paying for visibility, and visibility is a merchandising commitment.
- Trap. A deal that produces the co-branded product and no shelf plan.

Talent, character, and sports property collaborations.

[ ] Confirm the property owner actually controls every right it is granting, including publicity rights and union clearances.
- Why. The trademark is often the smallest piece of the bundle.
- Authority. See Clearing and Licensing Name, Image, and Likeness; Right of Publicity and Personal Brand Toolkit.
- Trap. A likeness license that does not cover the specific media the campaign will use.
[ ] Build longer approval windows into the production schedule.
- Why. Property-owner approvals routinely take three to four weeks, and the print deadline does not care.
- Trap. A ten-day deemed-approval clause the licensor will never accept, negotiated in week five.

Software, platform, and API collaborations.

[ ] Separate the trademark license from the technology license, and make each survive independently.
- Why. Brand rights and code rights end on different schedules and for different reasons.
- Authority. See Software, Data, and Open Source Toolkit.
- Trap. A single termination clause that kills the integration and the branding simultaneously, stranding customers.
[ ] Address open source obligations that attach to anything jointly developed.
- Why. A copyleft component in a joint deliverable creates distribution obligations neither party planned for.
- Trap. Discovering the dependency during a customer's security review.

Multi-market collaborations.

[ ] Confirm the lock-up is compliant, and both marks registrable, in every launch market.
- Why. Labeling rules, permitted claims, and the availability of each mark vary by country.
- Authority. See International Trademark Toolkit; How Far Does a U.S. Trademark Reach.
- Trap. A campaign approved domestically that cannot lawfully run in half the launch markets.
[ ] Check whether any market requires or permits license recordal.
- Why. In some jurisdictions recordal affects the licensee's ability to enforce or the licensor's ability to rely on licensee use.
- Trap. Assuming the U.S. answer — no recordal — travels.

Nonprofit, cause, and sponsorship tie-ins.

[ ] Confirm compliance with commercial co-venture registration where a charitable claim is made.
- Why. Many states regulate advertising that promises a portion of purchase price to charity, with registration, bonding, and contract requirements.
- Trap. A "one dollar per unit to charity" campaign launched in forty states with no filings anywhere.
[ ] Substantiate the donation claim exactly as advertised.
- Why. It is an advertising claim like any other.
- Authority. 15 U.S.C. § 45.
- Trap. A cap on the total donation that the advertising does not disclose.

Key Authorities at a Glance

| Authority | Proposition | Where it bites in a co-brand | |---|---|---| | 15 U.S.C. § 1127 | Definitions; abandonment through failure to control | Quality exhibit and survival clause | | 15 U.S.C. § 1055 | Related-company use inures to the owner | Goodwill allocation | | 15 U.S.C. § 1051 | Applications; ownership | New-mark gate at Phase 3 | | 15 U.S.C. § 1060 | Assignment and recordation | Partner chain-of-title diligence | | 15 U.S.C. § 1114 | Infringement of registered marks | Enforcement allocation | | 15 U.S.C. § 1125 | False designation; false advertising | Claims and substantiation index | | 15 U.S.C. § 45 | Unfair or deceptive acts | Claim substantiation | | 16 C.F.R. Part 436 | FTC Franchise Rule | Accidental-franchise screen | | 16 C.F.R. Part 255 | Endorsements and testimonials | Creator and talent activations | | 17 U.S.C. § 201 | Copyright ownership; works made for hire | Campaign creative allocation | | 35 U.S.C. § 262 | Joint patent owners; no accounting | Jointly developed product IP | | 11 U.S.C. § 365 | Executory contracts; rejection | Insolvency of a partner | | 15 U.S.C. § 1066a | Ex parte expungement | Partner registration validity | | 37 C.F.R. § 3.11 | Recordable documents | Security-interest search | | 37 C.F.R. § 2.71 | Amendments to applications | Correct-owner filing |

The five things people get wrong

One: they defer the ownership question. It is the hardest question in the deal and the only one that gets harder with time. Answer it at the term sheet, in writing, even if the answer is "no new mark and neither party will file."

Two: they write an approval right without a clock. Every co-branding relationship that has ever soured operationally soured here. Ten business days with deemed approval, measured against a written library, with named escalation contacts. The clause is three sentences and it prevents most of the pain.

Three: they use "exclusive" without defining it. Category, territory, channel, and time are four separate questions. Answer all four expressly, name the excluded competitors on a schedule, and tie exclusivity to performance.

Four: they draft the exit in one sentence. "This agreement terminates after three years" leaves the inventory, the retailer communication, the digital assets, the surviving quality obligations, and the sell-off cap entirely unaddressed — which means they are negotiated at the moment of maximum hostility.

Five: they let quality control lapse during the wind-down. The sell-off period is still licensed use, and a licensed use without control is a naked license. Put the quality exhibit in the survival clause. See Naked Licensing.