Substantial association with the franchisor’s trademark

This test comes up when an arrangement is not called a franchise but the brand is on the door. Ontario’s Arthur Wishart Act, s. 1(1), asks whether the franchisor grants the right to sell, offer for sale or distribute goods or services substantially associated with a trade-mark, trade name, logo or advertising or other commercial symbol owned by or licensed to the franchisor or its associate. It pairs that with significant control over, or significant assistance in, the franchisee’s method of operation. See which provinces have franchise disclosure laws.

Other wording

British Columbia’s Franchises Act, s. 1(1), refers to the franchisor’s or associate’s trademark, trade name, logo or advertising or other commercial symbol, and pairs it with significant control or assistance. Alberta’s Franchises Act, s. 1(1)(d)(ii), asks that the business be substantially associated with a trademark, service mark, trade name, logotype or advertising of the franchisor or its associate, or designating either. Ontario also has a second branch that applies whether or not a trademark is involved, built on representational or distribution rights and location assistance. This entry covers Ontario, British Columbia and Alberta only; check the rules where the business is.

What to ask

• Whose marks appear on the signs, products and advertising, and who owns or licenses them
• Who controls or assists the method of operation
• How the marketing plan or system is set