Use trademarks, patents, and designs to safeguard your franchise from imitation and competition.
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Gabriele Rossi
Franchising is much more than a simple commercial agreement: it is a strategy to replicate success through a unique and recognizable format, with intellectual property at its core. This article explores how to build and protect a commercial format, analyzing the most effective legal tools — such as contracts, trademarks, patents, and designs — along with operational strategies to ensure consistency and replicability. Through iconic examples like McDonald’s®, the challenges of standardization, intellectual property protection, and affiliate management are illustrated. With a focus on practical elements and legal advice, this article provides a comprehensive guide for anyone aiming to turn a brilliant idea into a solid and scalable business model.
Franchising is a commercial agreement whereby a company (the franchisor) grants another (the franchisee) its know-how, trademark, and most importantly, its format, in exchange for royalties and fees (see also “The franchise agreement, step by step”). Much of the industrial protection — and therefore the value — of a franchising model often lies precisely in this last component: the franchising format.
Creating a successful format requires creativity, planning, and a clear strategic vision. However, a format’s success does not make it immune to challenges, especially when it comes to protecting its uniqueness in the market. Competitors can replicate distinctive elements such as the concept or the store’s mood, the design of the premises, or generally the user experience, posing a real threat.
As highlighted by Arlo Canella in his article “Come proteggere un’idea commerciale” the protection of the format cannot be left to chance. A strategic approach is needed, combining intellectual property registrations, specific contracts, and constant attention to safeguarding innovative ideas. The ability to identify and defend key strengths forms the foundation for building a franchising model that is durable and resilient against unfair competition.
Those wishing to transform a commercial activity into a successful franchise must pursue a strategy that includes not only business expansion but also legal protection and a realistic identification of the format’s strengths. A perfect example of this blend of strategic vision and operational innovation is the famous “Speedee System” developed by the McDonald brothers — a model that revolutionized fast food and demonstrated the importance of protecting and standardizing every detail to scale success.
But how does one move from theory to practice? In the next section, we will explore how a format can evolve from a brilliant idea into a global commercial network, facing the challenges of growth and the pitfalls of competition.
A franchising format is not just about offering a product or service; it is about delivering a complete and unique customer experience. This concept is iconically represented in the story of McDonald’s®, one of the largest franchises in the world, depicted in The Founder (2016), directed by John Lee Hancock and starring Michael Keaton as Ray Kroc, alongside Nick Offerman and John Carroll Lynch as Richard and Maurice McDonald (see the official trailer on Rotten Tomatoe’s YouTube channel).
The movie narrates how the McDonald brothers invented their revolutionary “Speedee System”, a kitchen designed for efficiency, speed, and consistent quality. One of the most representative scenes shows the brothers drawing the kitchen layout with chalk on a tennis court, simulating staff movements to optimize every process step. This methodological approach gave birth to a true culinary assembly line, radically transforming the fast-food industry.
The underlying idea was simple yet effective: standardize every aspect of the customer experience — from a carefully selected, consistent menu, to uniform service times, to the restaurant’s design. The famous Golden Arches, the iconic product selection, and the uniform ordering and tray delivery process became the hallmarks of the McDonald’s® format: identical everywhere around the world. (However, as discussed in the article “Proprietà intellettuale, “iperlocalizzazione” e trend del 2024” staying relevant sometimes requires adapting to local trends, such as the McSpicy Paneer in India or the Teriyaki Burger in Japan.)
To protect this uniqueness, it is essential to document and detail the distinctive elements of the format. In McDonald’s® case, documentation included operational procedures, architectural designs, and promotional materials. These tools not only protected the creative investment but enabled the replication of the model on a global scale.
As shown in the movie, McDonald’s® expansion was made possible thanks to rigorous standardization. However, the transition from the McDonald brothers’ dream to Ray Kroc’s global empire also highlights the critical importance of protecting know-how to prevent unauthorized exploitation. A well-protected format can become a valuable asset through tools like trademark registration, design protection, carefully drafted franchise agreements, and actions against unfair competition. McDonald’s® story proves that success requires not only vision and strategy but also robust legal protection to preserve and enhance what makes a brand unique.
How can these ideas be transformed into priceless intangible assets? In the next chapter, we will explore the role of intellectual property rights and competition law regulations, both essential to ensuring the success and replicability of a format.
Protecting a franchising format relies on combining several legal tools, including trademark and design registrations, copyright protection, and trade secrets.
In McDonald’s® case, the corporation protects its intellectual property through a combination of registered trademarks, patents, and design rights. Some of the most famous trademarks include:
McDonald’s® has also registered patents to protect food preparation methods. Examples include:
Even packaging is protected by patents such as:
Moreover, McDonald’s® has patented devices and tools related to the customer experience, including heated food containers, grills, beverage dispensers, frying baskets, coffee urns, and even high chairs and salad bars.
However, protecting a format poses significant challenges. The recent ruling by the General Court of the European Union regarding the “Big Mac” trademark highlighted the need for actual use to maintain rights.
In this specific case, the trademark was deemed invalid for chicken sandwiches because McDonald’s® could not demonstrate actual use for this category — emphasizing the importance of continuous and documented use (see “Niente “panini al pollo” marchiati Big Mac, McDonald’s perde in UE”).
Slogans also play an important role in building brand identity. As explained in the article “How to defend a commercial slogan” registering a slogan as a trademark strengthens protection and prevents unauthorized third-party use (for more details, see “Qual è la modalità corretta per costruire il payoff di un brand?”).
Identifying and protecting the key elements of a format requires a well-defined strategy. Not every aspect can be protected by a trademark: elements such as food presentation, menu design, or restaurant layout may fall under copyright or design protection.
Balancing the protection of know-how and trade secrets with public claims is equally crucial. For further details, see the article “What is know-how and how can we protect it?”.
Combining these tools is the first step to effectively protect and sustain the growth of a successful franchise.
Protecting the franchising format is not just about legal measures — it is a strategic move to safeguard Return on Investment (ROI). Every distinctive element of the format, from store aesthetics to customer experience, constitutes intellectual capital that contributes to the perceived value for customers, franchisees, and investors. This directly translates into the franchise’s profitability.
Before expanding a format, it is crucial to ensure its consistency and recognizability. This requires:
An important step to ensure format success is the testing phase, often conducted through a pilot agreement. This tool allows real-world verification of the format’s replicability and the effectiveness of the guidelines before large-scale expansion (see “The pilotage contract in franchising: features, legal precautions and differences with the franchise contract”).
Monitoring and supporting affiliates is just as important to maintain the format’s identity. Periodic audits help ensure that operational and quality standards are respected, while constant support strengthens the relationship between franchisor and franchisee, reducing the risk of discrepancies or imitations.
Investing in building a strong reputation is equally essential. A brand that is recognized and valued by the public is naturally less vulnerable to imitation: consumers are more likely to choose the original over copies. This explains why McDonald’s® remains the fast-food giant it is today.
Creating and protecting a format requires balancing creativity, strategy, and legal safeguards. In franchising, the challenge is even greater because the format’s identity must be replicated consistently on a large scale. Investing in defining and protecting the format’s distinctive elements is the first step toward building a strong and sustainable brand capable of withstanding market challenges and competitive pressure.
Gabriele Rossi
