Franchise System IP Checklist: Mark and System Documentation, Disclosure and Registration Records, Standards and Inspection Evidence, Territory and Transfer Terms, and Post-Termination De-Identification

By Casey Scott McKay · 2024-03-06

A ten-phase working checklist for franchisors, franchisees, master franchisees, and licensors who may have become franchisors without noticing. Phases one through three build the portfolio, the manual, and the trade dress record. Phase four builds the inspection programme that keeps the marks alive. Phases five and six cover disclosure and territory. Phases seven and eight cover transfer, renewal, termination, and de-identification. Phases nine and ten cover supply, technology, and international expansion. Each phase closes with a gate.

IP and Technology > Trademarks | Checklist | Published 6 March 2024 - Updated 18 May 2026 | Casey Scott McKay - marksy.us

How to use this checklist

Three propositions organise everything below.

Control is a legal requirement, not a commercial preference. 15 U.S.C. § 1055 permits licensee use to benefit the registrant only where the registrant controls nature and quality, and 15 U.S.C. § 1127 treats uncontrolled licensing as abandonment.

The label does not decide whether it is a franchise. Mark, system, and payment together bring 16 C.F.R. Part 436 into play whatever the arrangement is called.

The paperwork is the asset. Inspection records, de-identification terms, and portfolio schedules cannot be created retrospectively, and each decides a dispute the system would otherwise lose.

Phase four is the one to start first, because its value is a function of how long it has been running. Everything else can be sequenced by budget.

The doctrinal background is Selling the System; the operational treatment with worked engagements is Operating a Franchise System; the cluster is assembled in the Franchise System IP Toolkit.

Phase 1. The mark portfolio

[ ] Build the schedule: every mark, by class, jurisdiction, registration number, status, renewal date, and encumbrance.
[ ] Reconcile outlets against registrations, since expansion outruns filing in every growing system and the gap is where the first finding appears.
[ ] File the primary mark, logo, secondary marks, taglines, and proprietary product names in every jurisdiction with an outlet and every jurisdiction on the development plan.
[ ] Specify broadly, because franchise systems extend into merchandise, packaged goods, training, and applications, and later filings meet intervening rights.
[ ] Consolidate ownership in a single entity and licence down, since registrations scattered across operating companies surface as a problem during a sale.
[ ] File incontestability declarations at five years under 15 U.S.C. § 1065, noting that Park 'N Fly, Inc. v. Dollar Park & Fly, Inc. protects an incontestable registration from a descriptiveness challenge.
[ ] Record any coexistence agreements, consents, or prior licences, which limit the franchisor's rights and must be disclosed.
[ ] Run a watching service and a renewal docket, funded from the marketing contribution. See the Trademark Portfolio Management Toolkit and the International Trademark Toolkit.
[ ] [Gate] The schedule is current and Item 13 will be drafted from it rather than from last year's document.

Phase 2. The operations manual

[ ] Register it as a literary work under 17 U.S.C. § 102, within three months of publication to preserve remedies under 17 U.S.C. § 412, noting the precondition at 17 U.S.C. § 411 and the completion requirement from Fourth Estate Public Benefit Corp. v. Wall-Street.com.
[ ] Re-register material revisions, since the current edition is the one that matters.
[ ] Explain the limit to the client. 17 U.S.C. § 102(b) excludes methods of operation on the principle of Baker v. Selden, so a departed franchisee operating the same way has not infringed; one that photocopies the manual has.
[ ] Protect the system as a secret under 18 U.S.C. § 1836, applying the reasonable measures required by 18 U.S.C. § 1839: numbered copies, controlled distribution, marking, return obligations, and surviving confidentiality.
[ ] Licence rather than give, with an audit right and a return obligation.
[ ] Write it so it can carry the control obligation, since it is the document a court examines when asked whether the franchisor controlled anything.
[ ] Version it and record distribution, so the system can prove which standards were in force when an outlet failed them.
[ ] [Gate] The manual is registered, numbered, licensed, versioned, and specific enough to enforce.

Phase 3. Trade dress and the look of the network

[ ] Identify the elements: layout, colour scheme, signage system, materials, uniforms, packaging, and overall presentation.
[ ] Screen for functionality first under TrafFix Devices, Inc. v. Marketing Displays, Inc. and Qualitex Co. v. Jacobson Products Co., excluding anything essential to use or purpose.
[ ] Assess distinctiveness, noting Two Pesos, Inc. v. Taco Cabana, Inc. on inherently distinctive premises trade dress and Wal-Mart Stores, Inc. v. Samara Bros. on secondary meaning for product design.
[ ] Photograph every build-out on completion, dated, before the first day of trading. This evidence cannot be retrofitted.
[ ] Maintain the design standard with its revision history.
[ ] Record enforcement where an outlet departed from the standard, since consistency is the factual foundation of the claim under 15 U.S.C. § 1125.
[ ] Resist local variation or record it as an exception, because a network that permits wide variation has weakened both the trade dress claim and the control record. See Protecting Trade Dress and Trade Dress and the Functionality Doctrine.
[ ] [Gate] The protected elements are specified in a dated document, the functional ones are excluded, and the photographs exist.

Phase 4. The inspection programme

[ ] Start this first, because its value is a function of how long it has been running when somebody asks to see it, and it is the only remedy in this checklist that cannot be produced quickly.
[ ] Extract the inspectable standards — twenty to forty items a field visitor can observe and score in an hour. A two-hundred-item checklist is completed by nobody.
[ ] Set a frequency and hold it: quarterly for a new outlet, twice yearly for an established one, more often after a failure. The pattern matters evidentially more than the intensity.
[ ] Use a standard form producing a score, a deficiency list, and a cure deadline. A narrative email is not a record.
[ ] Deliver the report to the franchisee, since a deficiency the operator was never told about cannot support a later termination.
[ ] Track cures, because a programme that identifies failures and never confirms remediation documents that the franchisor knew and did nothing.
[ ] Escalate on a defined ladder: deficiency notice, re-inspection, formal default notice with the statutory cure period, termination.
[ ] Enforce at least occasionally, since a system that has never terminated for standards failure has standards that are not real — the Barcamerica International USA Trust v. Tyfield Importers, Inc. exposure — while Kentucky Fried Chicken Corp. v. Diversified Packaging Corp. shows what adequate control looks like.
[ ] Assign it to a role whose incentives are not sales, because inspections assigned to franchise development staff stop.
[ ] Retain reports for the relationship plus the limitation period.
[ ] Review the aggregate quarterly, since a pattern across outlets is a system problem and the manual may be what needs fixing.
[ ] Hold the liability boundary. Control customer-facing brand standards; leave employment and operational decisions to the operator, and train field staff to that line explicitly.
[ ] [Gate] A written inspection report exists for every outlet within the last twelve months, and at least one enforcement action has been taken.

Phase 5. Disclosure and registration

[ ] Run the three-element test — mark, significant control or assistance, required payment — on the arrangement, whatever it is called.
[ ] Deliver the disclosure document at least fourteen calendar days before signature or payment under 16 C.F.R. Part 436, and record delivery with a receipt.
[ ] Draft Item 13 from the Phase 1 schedule, listing every principal mark with registration number, register, and status.
[ ] Identify applications as applications and state that rights are not yet secured.
[ ] Disclose adverse determinations — refusals, oppositions, cancellations, adverse decisions — since a pending opposition against the principal mark is material.
[ ] Disclose agreements limiting rights, including the coexistence agreements systems routinely forget.
[ ] State the indemnity position on infringement claims arising from use of the marks.
[ ] State the franchisee's notification obligations on learning of infringement or receiving a claim.
[ ] Draft Item 14 for patents, copyrights, and the manual's confidential status.
[ ] Control Item 19 rigorously, since financial performance representations generate more litigation than any other item and earnings claims made outside the document are the classic failure.
[ ] Check state registration and relationship statutes, several of which impose notice, cure, transfer, and non-renewal requirements overriding the contract.
[ ] Diarise the annual update and material change amendments. See When a Trademark License Becomes a Franchise.
[ ] [Gate] Item 13 matches the portfolio schedule as at today, not as at last year.

Phase 6. Territory and channels

[ ] Choose the model and name it explicitly: exclusive, protected, area of primary responsibility, or none. Franchisees read ambiguity as the strongest of the four.
[ ] Define the territory geographically and by channel, since the modern dispute is about delivery aggregators, online ordering, grocery distribution, and national accounts rather than a new outlet down the road.
[ ] Reserve channels expressly rather than relying on silence.
[ ] State what happens to revenue from customers inside the territory served through a reserved channel. Systems that share it keep better relationships than systems that do not.
[ ] Build in a process for new channels, by amendment or defined mechanism, rather than litigating whether the original grant covered something nobody had heard of.
[ ] Note the trademark backdrop in Dawn Donut Co. v. Hart's Food Stores, Inc., whose structure still informs territorial analysis even as the doctrine has eroded.
[ ] Expect implied covenant arguments where exclusivity meets an unanticipated channel, and price them as settlement leverage rather than as claims.
[ ] [Gate] Every territory clause in the network names the channels, including the ones that did not exist when the form was drafted.

Phase 7. Transfer, renewal, and termination

[ ] Condition transfer consent on objective criteria: financial capacity, training completion, an updated agreement, a transfer fee, and demonstrated ability to meet standards. Arbitrary refusal is where relationship statutes engage.
[ ] State the renewal position: whether there is a right, on what terms, and subject to what upgrades. A renewal conditioned on refurbishment is common and is where many relationships actually end.
[ ] Enumerate termination grounds and match notice and cure periods to the applicable relationship statutes, which override the contract in several states.
[ ] Document the failure before terminating, using the Phase 4 inspection record, since a standards-based termination without it is not survivable.
[ ] Plan for franchisee insolvency. Mission Product Holdings, Inc. v. Tempnology, LLC holds that rejection of a trademark licence in bankruptcy is breach rather than rescission, so rejection does not clear the mark. See When Your Licensor Goes Bankrupt and Protecting a Trademark License Against Insolvency.
[ ] Plan for franchisor insolvency, since a franchisee's business depends entirely on somebody else's licence.
[ ] Keep a termination playbook with the statutory requirements state by state, so the process is not researched under time pressure.
[ ] [Gate] Every termination in the past two years complied with the applicable notice and cure requirements.

Phase 8. De-identification

[ ] Enumerate, do not generalise. "Cease using the marks" is inadequate and unenforceable in practice.
[ ] Require signage removal, including pole signs, directional signage, window graphics, and menu boards.
[ ] Require repainting and de-branding so the trade dress is no longer recognisable.
[ ] Require return or destruction of all branded materials, packaging, uniforms, and stock, with a certificate.
[ ] Require transfer of the digital estate: domain names, social media accounts, business listings, mapping entries, and telephone numbers.
[ ] Secure the digital estate at the outset by requiring registration in the franchisor's name or on trust from day one, because recovering it afterwards is far harder than recovering a sign.
[ ] Set deadlines for each item.
[ ] Take a right of entry to remove signage at the franchisee's cost, since without one the franchisor has only a damages claim against a party in financial difficulty.
[ ] Include liquidated damages calibrated to the daily cost of continued use.
[ ] Cut off proprietary supply, where the system has it, since a terminated outlet without the signature product cannot maintain the offering however slowly it repaints.
[ ] Move quickly on breach, since the claim under 15 U.S.C. § 1114 and 15 U.S.C. § 1125 is strong and confusion near-automatic, but delay undermines the urgency supporting interim relief.
[ ] Audit the network for outlets terminated previously and never fully de-identified. There are usually two.
[ ] [Gate] The de-identification clause lists items, dates, an entry right, and a damages measure.

Phase 9. Supply, technology, and data

[ ] Run an approved supplier programme, which serves the control obligation and produces the documentary record that defeats a naked licensing allegation.
[ ] Disclose rebates and supplier payments in the disclosure document, since omission is a common regulatory failure.
[ ] Treat proprietary product specifications as trade secrets and flow confidentiality down to the manufacturer. See The Factory That Knows Everything, Contracting With a Manufacturer, and the Contract Manufacturing IP Checklist.
[ ] Watch the tying and competition questions where supply is mandated at above-market prices without a quality justification.
[ ] State who owns point-of-sale data, what the franchisor may do with it, and whether the franchisee may extract its own records on termination.
[ ] Name the shift in the customer relationship where ordering, loyalty, and delivery run through the franchisor's application, and address it in the territory analysis rather than letting it happen silently.
[ ] Decide the aggregator position: whether franchisees may list independently, on what terms, and who negotiates.
[ ] Address data on termination, which is the modern equivalent of the signage question. See Selling Something You Cannot Own and the Data Licensing Checklist.
[ ] [Gate] Somebody can state who owns each outlet's transaction data, customer list, and digital identity.

Phase 10. International expansion

[ ] Clear and file the marks before signing anything, since a master franchise agreement for a country where the mark is already registered to somebody else sells something the franchisor cannot deliver. Squatting against expanding franchise brands is a recognised business model.
[ ] Check the local disclosure regime, which may have different timing, content, registration, and mandatory local-law terms.
[ ] Check royalty remittance restrictions and agreement registration requirements.
[ ] Build the control obligation into the master agreement, since a brand owner controlling its master but not the sub-franchisees has a naked licensing problem one level removed.
[ ] Audit the master's own inspection records rather than accepting assurances.
[ ] Address translation and transliteration of the marks and any local trade dress norms.
[ ] Address supply chain adaptation, which erodes system consistency and therefore the trade dress claim.
[ ] State what happens to the country's outlets if the master relationship ends.
[ ] [Gate] No international agreement is signed before the marks in that jurisdiction are secured.

Network variants

[ ] Multi-unit and area development. Address what happens when the development schedule is missed: territory reversion, loss of exclusivity, and whether the franchisor may develop the territory itself.
[ ] Master franchising. Impose and evidence the same standards through both layers; audit the master rather than trusting it.
[ ] Conversion franchising. De-identification runs in reverse, subsuming the incoming operator's own name and goodwill, and the exit terms should say whether it may revert.
[ ] Licensing without a system. Not a franchise, but still subject to the control obligation — a licensor that removes the system to avoid the Rule must not also remove the control.
[ ] Cooperative and member-owned networks. Control becomes governance; consider a certification mark under 15 U.S.C. § 1054. See Certification and Collective Marks and the Certification and Collective Mark Application Checklist.
[ ] Hospitality flags. Management and franchise agreements interact with owner and operator structures. See Points, Flags, and Bookings, Running a Travel or Loyalty Brand, and the Travel, Hospitality, and Loyalty Programme Brand Toolkit.
[ ] Dealer and reseller networks, which are franchise-adjacent without intention. See the Channel Partner IP Checklist and the Reseller, Dealer, and Channel Partner IP Toolkit.
[ ] [Gate] The structure in use has been named, and the checklist has been adapted to it.

For the franchisee

[ ] Read Item 13 first. A system operating on unregistered marks in a crowded field is selling something it may not be able to defend.
[ ] Price the exit using the de-identification obligations, since repainting a building is a real number belonging in the investment calculation.
[ ] Negotiate the digital estate, particularly the customer list or a right to notify customers of a change — one of the few real levers a single-unit franchisee has.
[ ] Understand that goodwill accrues to the franchisor, which is the bargain and why the exit terms matter more than the entry ones.
[ ] Check the improvement assignment, which most agreements make without compensation.
[ ] Check the territory clause for channels, because the franchisor's online business may reach your customers on day one.
[ ] Check the relationship statutes in your state for notice, cure, transfer, and non-renewal protections the contract does not give.
[ ] [Gate] The franchisee knows what it owns at the end, which in most systems is the premises and nothing else.

The ninety-day sequence

[ ] Weeks one to two. Portfolio schedule, control diagnostic, offering check. A one-page risk summary ranking three items.
[ ] Weeks two to four — Phase 4. Start the inspection programme, because the record only accrues once it begins.
[ ] Weeks four to six — Phase 1. Portfolio remediation: missing filings, incontestability declarations, entity consolidation, watching service.
[ ] Weeks six to eight — Phase 2. Register, number, licence, and version the manual.
[ ] Weeks eight to ten — Phases 6, 8, and 9. Agreement amendments for the next cohort.
[ ] Weeks ten to twelve — Phase 5. Disclosure document with Item 13 drafted from the remediated schedule, plus state filings.
[ ] [Gate] At ninety days the control record has started, the portfolio supports the disclosure, and the agreement will not fail at termination.

The annual review

[ ] Reconcile outlets against registrations.
[ ] Audit inspection coverage and identify outlets not visited.
[ ] Confirm at least one standards enforcement occurred during the year.
[ ] Re-photograph the build-out standard if it changed.
[ ] Amend the disclosure document for material changes and re-check Item 13 against the schedule.
[ ] Review territory clauses against new channels.
[ ] Audit the digital estate for outlets whose domains and handles remain in franchisee names.
[ ] Confirm manual version control and that new franchisees received the current edition under licence.
[ ] Check for terminated outlets not fully de-identified.
[ ] Re-run the franchise analysis on any commercial arrangement signed during the year, since partner programmes cross the three-element line without anyone noticing.
[ ] [Gate] Nothing in the file is more than twelve months old and unverified.

Three worked applications

The system that stopped inspecting

[ ] Assess the naked licensing exposure on Barcamerica, remembering that abandonment operates against the world rather than only against the licensees.
[ ] Look for other control evidence before conceding: supplier approvals, mystery shopping, complaint handling, mandated refurbishments, past terminations.
[ ] Reinstate inspections immediately and document them, since what a buyer or a court needs to see is that the gap has closed.
[ ] Enforce at least one standards failure during the remediation period.
[ ] Disclose the gap with a remediation plan rather than waiting for diligence to find it.
[ ] Record the lesson: a franchisor that inspects without writing it down is nearly as exposed as one that does not inspect.

The terminated outlet still trading

[ ] Check the termination first against the applicable notice and cure statutes, since a defective termination is a defence rather than a technicality.
[ ] Move quickly, because confusion is near-automatic but delay undercuts the urgency argument.
[ ] Use the enumerated list from Phase 8 and exercise the right of entry.
[ ] Include the digital estate in the same application, since it outlives the signage and is what customers encounter.
[ ] Quantify with the liquidated damages clause, because proving actual damages against a failing franchisee is futile.
[ ] Then audit the rest of the network for earlier terminations never fully completed.

The licensor who did not know

[ ] Run the three-element test: mark, prescribed system, required payment.
[ ] Assess the exposure, which in registration states includes private rescission remedies exercisable at the licensees' election — the unwinding of the network rather than a fine.
[ ] Evaluate the three options: comply prospectively, restructure by removing the system, or unwind.
[ ] Recommend compliance in almost every case, since the restructure that removes the system removes the value.
[ ] Check the portfolio before drafting Item 13, because the disclosure will expose whatever the portfolio lacks.
[ ] Build the process into the next cohort so growth stops compounding the problem.

What good looks like

[ ] The portfolio schedule is current, and Item 13 was drafted from it.
[ ] Every outlet has a written inspection report within the last twelve months.
[ ] At least one standards enforcement occurred in the past year.
[ ] The manual is registered, numbered, licensed, and versioned.
[ ] Every territory clause names the channels.
[ ] The de-identification clause lists items, dates, an entry right, and a damages measure.
[ ] The digital estate for every outlet sits with the franchisor or on trust.
[ ] No commercial arrangement in the business is an unanalysed franchise.

Eight statements. A system that can make all eight expands confidently, defends its marks, terminates cleanly, and sells without a diligence discount.

A note on proportion

[ ] A system with fewer than ten outlets needs Phases 1, 2, 4, 5, and 8, and can defer the rest.
[ ] Never defer Phase 4, since it is the only remedy that requires time to accrue.
[ ] Never defer Phase 8, since it decides the most common dispute in the sector and costs a drafting session.
[ ] Treat Phases 3, 9, and 10 as conditional on multiple sites with a consistent build-out, a technology stack, or an international plan.
[ ] [Gate] Client and adviser have agreed in writing which phases are in scope and why the others are not.

Enforcement priorities

[ ] Former franchisees still trading under the marks. Highest priority by a wide margin.
[ ] Current franchisees breaching standards, which is quality control rather than infringement and is what preserves the mark.
[ ] Unauthorised operators using the marks, pursued promptly because the network is watching whether the franchisor defends what it charges for.
[ ] Counterfeit branded goods, where the system has a retail line.
[ ] Domain and social impersonation, addressed as a standing programme through platform procedures. See the Global Brand Enforcement Toolkit.
[ ] Confusingly similar new entrants, handled by the watching programme.
[ ] [Gate] The enforcement budget is spent in that order, because franchisees fund it and judge the system by what it defends.

The diligence pass

Franchise systems are bought, sold, refinanced, and taken to investment committees, and the intellectual property diligence has a distinctive shape.

[ ] Ask for the inspection reports for the last eight quarters, by outlet. Absence is the single most consequential finding in a franchise diligence and it is priced accordingly.
[ ] Ask when an outlet was last terminated for standards failure, and read the file.
[ ] Reconcile the outlet list against the registration schedule, jurisdiction by jurisdiction.
[ ] Read Item 13 against the schedule, since a discrepancy is both a portfolio finding and a disclosure exposure.
[ ] Ask for the manual's registration certificates and its distribution log.
[ ] Ask who owns each outlet's domain, handles, and mapping listings. A network whose digital identity sits with its operators has a value problem the financial model does not show.
[ ] Ask for the list of terminated outlets and confirm de-identification was completed for each.
[ ] Read the territory clauses for channel reservations, because a buyer planning to grow online needs to know whose customers those are.
[ ] Ask for the state registration status and any regulatory correspondence.
[ ] Ask whether any adjacent commercial arrangement has been analysed as a franchise, and read the memorandum if one exists.
[ ] Price the remediation rather than the exposure where possible, since the cost of restarting inspections is knowable and the cost of a naked licensing finding is not. See the IP Due Diligence Toolkit.
[ ] [Gate] The buyer knows whether the marks are safe, and the seller found out before the buyer did.

Conversations that recur

[ ] "Our franchisees are independent, so we cannot tell them what to do." True as to employment and operations, false as to brand standards — where not telling them is what loses the mark.
[ ] "We inspect informally." Then evidentially you do not inspect. The remedy is a form, not more visits.
[ ] "The franchisee built that customer base." True, and the agreement assigned it. Whether that is fair is a commercial question; whether it is what the document says is not.
[ ] "They took the sign down, so we are finished." Check the domain, the handles, the mapping listing, the directories, the uniforms, and the packaging.
[ ] "It is only a partner programme." Run the three-element test. Partner programmes with a manual and a fee are franchises with a friendlier name.
[ ] "We will register the marks once the country is proven." By which point somebody else will hold them — the most expensive delay a franchise system makes.
[ ] "Our lawyer updates the disclosure document annually." Ask whether they see the portfolio schedule. Usually not, and Item 13 drifts one year at a time.
[ ] [Gate] Each of these has been answered once, in writing, so nobody has to answer it again under pressure.

The evidence habits behind the file

The artefacts in this checklist are outputs. These are the habits that produce them, and they belong to operations rather than to legal.

[ ] Photograph every build-out on completion, dated, before the first day of trading. Field staff can do this with a phone and it is the only moment the evidence exists.
[ ] Complete the inspection form on site, not afterwards from memory, and leave a copy with the operator.
[ ] Log every deficiency notice and its cure, since the pair is what makes the record meaningful.
[ ] Record manual distribution at the point of handover, with the copy number and the edition.
[ ] Capture the digital estate at outlet opening — domain, handles, listings, phone number — and record who holds each.
[ ] File a short note whenever a commercial arrangement is signed recording whether the franchise analysis was run and what it concluded.
[ ] Keep the termination file complete with the inspection history, notices, cure periods, and the de-identification confirmation.
[ ] Diarise the incontestability declarations at the point of registration rather than five years later.
[ ] [Gate] Eight habits, each owned by an operating team, each producing one artefact the system depends on.

A closing note

Franchising is the most document-dependent area of trademark practice, because the mark's value depends entirely on a consistency the franchisor does not directly control and can only prove through records.

Every dispute in this checklist resolves the same way: the party with the contemporaneous record wins. The franchisor with inspection reports keeps its mark; the one without may lose it against the world. The system with an enumerated de-identification clause clears a terminated outlet in weeks; the one with a general obligation litigates for a year. The brand that filed before signing the master agreement expands; the one that waited buys its own mark back.

None of that requires sophisticated advice. It requires somebody to have written things down on the day they happened, for years, before anybody asked — which is exactly the discipline organisations find hardest and which is, in this sector, the whole of the asset.

Six questions that reveal a system's real condition

[ ] When did a field visit last produce a written report, and where is it? Separates a control record from a control policy.
[ ] When did the system last terminate or formally warn an outlet for standards failure? A network that has never enforced has evidence problems it does not know about.
[ ] Are the marks registered in every country with an outlet, and were the incontestability declarations filed? Expansion outruns filing in every growing system.
[ ] Who owns each outlet's domain, handles, and mapping listing? In most systems the answer is the franchisee, and nobody has noticed.
[ ] Does the territory clause name delivery platforms and online ordering? Agreements drafted before those channels existed are silent, and silence favours whoever moves first.
[ ] What must come down on termination, by when, and who may enter to remove it? A general obligation is unenforceable in practice.
[ ] [Gate] All six answered in a single morning, in writing, before any other work begins.
[ ] And a seventh, for the licensor who is certain none of this applies: are you charging anyone for the right to use your name while telling them how to run their business? If yes, everything above is already in scope.
[ ] [Gate] The answer to the seventh question has been recorded, and if it was yes, Phase 5 has been opened.

Key Authorities at a Glance

Franchising is trademark licensing under a regulatory overlay. Control comes from 15 U.S.C. § 1055 with abandonment at 15 U.S.C. § 1127, applied in Barcamerica International USA Trust v. Tyfield Importers, Inc. and Kentucky Fried Chicken Corp. v. Diversified Packaging Corp.. Enforcement runs through 15 U.S.C. § 1114 and 15 U.S.C. § 1125, with cancellation at 15 U.S.C. § 1064 and incontestability at 15 U.S.C. § 1065 as read in Park 'N Fly, Inc. v. Dollar Park & Fly, Inc..

Trade dress runs through Two Pesos, Inc. v. Taco Cabana, Inc., Wal-Mart Stores, Inc. v. Samara Bros., TrafFix Devices, Inc. v. Marketing Displays, Inc., and Qualitex Co. v. Jacobson Products Co.; territory through Dawn Donut Co. v. Hart's Food Stores, Inc.. The manual is expression under 17 U.S.C. § 102, with the system excluded by 17 U.S.C. § 102(b) on Baker v. Selden, registered under 17 U.S.C. § 411 and § 412 after Fourth Estate Public Benefit Corp. v. Wall-Street.com, and protected as method under 18 U.S.C. § 1836 and § 1839. Insolvency is Mission Product Holdings, Inc. v. Tempnology, LLC; the offering is 16 C.F.R. Part 436.

| Authority | Phase | | --- | --- | | 15 U.S.C. § 1055 | 4 — control of nature and quality | | 15 U.S.C. § 1127 | 4 — abandonment by uncontrolled licensing | | Barcamerica International USA Trust v. Tyfield Importers, Inc. | 4 — naked licensing forfeits the mark | | Kentucky Fried Chicken Corp. v. Diversified Packaging Corp. | 4 — adequate control | | 15 U.S.C. § 1065 | 1 — incontestability | | Park 'N Fly, Inc. v. Dollar Park & Fly, Inc. | 1 — incontestable marks | | 15 U.S.C. § 1064 | 1 — cancellation grounds | | 17 U.S.C. § 102 | 2 — copyright in the manual | | Baker v. Selden | 2 — the system is not protected | | 17 U.S.C. § 411 | 2 — registration before suit | | 17 U.S.C. § 412 | 2 — timely registration | | Fourth Estate Public Benefit Corp. v. Wall-Street.com | 2 — completion of registration | | 18 U.S.C. § 1836 | 2 — trade secret in the system | | 18 U.S.C. § 1839 | 2 — reasonable measures | | Two Pesos, Inc. v. Taco Cabana, Inc. | 3 — premises trade dress | | Wal-Mart Stores, Inc. v. Samara Bros. | 3 — secondary meaning | | TrafFix Devices, Inc. v. Marketing Displays, Inc. | 3 — functionality | | Qualitex Co. v. Jacobson Products Co. | 3 — functionality and source | | 16 C.F.R. Part 436 | 5 — the Franchise Rule | | Dawn Donut Co. v. Hart's Food Stores, Inc. | 6 — territorial rights | | Mission Product Holdings, Inc. v. Tempnology, LLC | 7 — rejection is breach | | 15 U.S.C. § 1114 | 8 — terminated franchisee infringement | | 15 U.S.C. § 1125 | 3, 8 — unregistered marks and trade dress | | 15 U.S.C. § 1054 | Variants — certification mark alternative |

Further reading is collected at franchise inspection records, naked licensing franchise, franchise item 13 trademarks, de-identification obligations, and master franchise control.