Franchises

The Franchises (Registration and Control) Act, Cap I79A (the "FRCA"), provides for the licensing, registration and control of businesses which operate on franchise in Barbados, and for related matters.  Certain provisions of the FRCA are highlighted here.

A franchise is defined as meaning

(i)    a right granted in writing by the owner of a mark, product, service, technique or device to another person to use the mark, product, service, technique or device whether or not the mark, product, service, technique or device is protected by a trade mark or trade secret, or by usage, or otherwise, and

(ii)   includes a licence to use a copyright, industrial design or an invention.

The stated purpose of the Act is to provide

1)    for the licensing, registration and control

a)    of businesses operated on franchise,

b)    of businesses operated by any person, other than a citizen or permanent resident, using his own mark, product, service, technique, device, copyright, industrial design, or invention; and

2)    the orderly development of businesses referred to at 1)a) and b) above.

There is a prohibition on any person operating a business in Barbados using the mark, product, service, technique, device, copyright, industrial design, or invention of another person unless the first mentioned person obtains a franchise from the owner of the mark, product, service, technique, device, copyright, industrial design, or invention; and no person, other than a citizen or a permanent resident, shall operate a business in Barbados using his own mark, product, service, technique, device, copyright, industrial design, or invention.

Any person who wishes to operate a business in Barbados on franchise, or who, not being a citizen or permanent resident, wishes to operate a business in Barbados using his own mark, product, service, technique, device, copyright, industrial design, or invention, must first obtain a licence from the Minister responsible for Finance.

The franchise licence application must be in writing addressed to the Minister in such form as the Minister determines, and must, where the applicant is not the owner of the mark, product, service, technique, device, copyright, industrial design, or invention, that he is using or wishes to use, be accompanied by a notarised copy of the franchise.

The Minister upon receipt of an application must cause a notice inviting objections to the issue of a licence to be published in the Official Gazette and the notice must state the period during which the objection may be made.

An objection must be in the form determined by the Minister and must specify the reasons for the objection.

An application, and any objections to the issue of a licence are considered by the Minister, who may require the applicant and the objector to appear before him to be interviewed, and may require such other information in writing from the applicant or the objector as he thinks necessary.  A licence may be issued upon payment of the prescribed fee.

A licence shall be in the form determined by the Minister, is not transferable, and shall be valid, unless surrendered earlier, for a period not exceeding one year.  The licence may be subject to the conditions specified therein.  A licence is renewable annually.

There is a Register of Licences indicating the name and address of each person to whom a licence is issued, the type of business in respect of which a licence is issued, the number of the licence and the address at which the business is conducted.  The Register is open to inspection by the public.

A public officer assigned as an inspector may, on production of authority in writing signed by the Minister, enter premises where a business is being operated pursuant to a licence granted under the FRCA, to examine the licence, and the owner of person in charge of the business shall permit the examination.

A person who contravenes certain provisions of the FRCA or uses any mark, product, service, technique, device, copyright, industrial design, or invention that so nearly resembles a mark, product, service, technique, device, copyright, industrial design, or invention, as to be likely to mislead the public is guilty of an offence and liable on summary conviction to a fine of BDS$15,000.00 or imprisonment for one year or both; and in addition to such fine and imprisonment is liable to a further fine of BDS$1500.00 per day for every day during which the offence continues after conviction is first obtained.

A body corporate is also liable on summary conviction to the fine of BDS$15,000.00; and in addition to such fine is liable to a further fine of BDS$1500.00 per day for every day during which the offence continues after conviction is first obtained; and every director of any such body corporate who know, or could reasonably be expected to have know, of the contravention or use, is guilty of an offence and is liable on summary convection to a fine of BDS$15,000.00 or imprisonment for one year, or both.

There are further penalties prescribed for offences against an inspector or authorised person in the performance of his functions.

The licence fee payable for the issue of the original licence is BDS$10,000.00. The annual renewal fee is BDS$2,000.00.

Q&A Contact

If you have a question about any information on this page please contact: ghc@clarkes.com.bb