Key Takeaways

  • A branding agreement (or brand partnership agreement) is a legal tool to outline rights and responsibilities when two or more brands collaborate.
  • Key elements include licensing, usage rights, promotional guidelines, performance benchmarks, and exit clauses.
  • Branding agreements can cover product collaborations, co-marketing campaigns, or content partnerships.
  • Clearly defined intellectual property usage and quality control provisions help protect brand integrity.
  • Legal compliance, confidentiality, and dispute resolution clauses are crucial to avoid litigation.
  • A well-drafted agreement helps ensure a mutually beneficial partnership, especially when brand reputation and customer trust are at stake.

With a brand partnership agreement, your company partners with others and uses joint marketing strategies to create multiple associated brands or a separate joined brand. This marketing technique enables partners to increase their marketplace visibility, fend off other brands, share marketing costs with their partners, and possibly enter into previously untapped markets.

What Is a Brand Partnership?

Brand partnership, or co-branding, is a popular marketing technique used to transfer the success of one brand to the partnered brands. With co-branding, one partner offers their branded product in conjunction with another company's branded product, such as a fast food restaurant offering a branded toy with a meal. Co-branding can also occur when the partners physically combined their separate branded products to create a new and unique product shared by the partners, such as mixing a branded toothpaste with a branded mouthwash. The separate brands don't need to be equal in the marketplace, but the relationship should be obvious to consumers.

Risks of Not Using a Branding Agreement

Entering a brand partnership without a written branding agreement can expose companies to several risks, such as:

  • Brand Misrepresentation: Without agreed guidelines, a partner might use your brand in ways that damage your reputation.
  • Disputes Over Ownership: Joint campaigns may produce content or designs whose ownership becomes unclear, potentially leading to costly disputes.
  • Legal Liability: If one partner engages in deceptive marketing, the other may become legally liable in the absence of indemnification clauses.
  • Revenue Conflicts: Without clear terms on profit sharing or royalty payments, revenue disputes can derail the partnership.
  • Termination Issues: A lack of termination clauses can result in lingering brand association long after the relationship has ended.

To avoid these issues, it’s critical to have a branding agreement in place that outlines terms, expectations, and remedies in case of breach.

What Is Co-Marketing?

In a branded partnership, the partnered companies often collaborate on the marketing efforts to co-market their joined products. The partners work together to create the promotion, requiring less work by each partner and share the gains of the co-marketed offer.

In many cases, the partnered companies have similar audiences, and by working together, they can promote their co-branding products to both audiences. In some situations, a joint marketing campaign can help the partners enter a previously unavailable market and build a new audience.

In addition to traditional marketing strategies, some partners use other means to market their co-branded products to new audiences, such as:

  • Hosting a webinar or social media online event together and sharing the costs of the promotion.
  • Writing guest speaker blog posts on each other's sites.
  • Co-sponsoring an online contest.

Intellectual Property and Branding Agreements

Protecting intellectual property (IP) is a key reason to formalize a branding partnership. A well-drafted branding agreement should:

  • Clearly define which IP is being shared, licensed, or promoted.
  • Include ownership provisions so that no partner can claim rights over the other’s brand assets.
  • Outline restrictions on altering or adapting branded materials.
  • Address any jointly developed assets or trademarks, specifying who owns the resulting IP and how it may be used in future campaigns.

Failing to protect IP in a branding agreement can lead to legal disputes or loss of brand equity, especially if a partner misuses logos or taglines.

Planning a Brand Partnership

When planning a brand partnership, it is important to determine whether the purpose and goals of the co-branding will provide a mutual benefit to all partners. For example, when two partners plan to host a webinar and one partner would like to gain possible sales leads by getting the email addresses of the attendees but the other partner would like webinar attendance to result in attendees actually purchasing a product, the goals of the project might not be a good fit for both partners.

Before entering into a brand partnership, you might want to verify some other considerations, such as verifying whether:

  • Your partners have a similar audience to your company and that they want to grow their audience.
  • The number of new leads you gain from the partnership is worth the effort you will put into the joint venture.
  • Your partner's brand has a good reputation that won't damage your company's credibility.
  • Your partners agree with the topic and theme of the joint venture.

Types of Branding Agreements

Branding agreements can take many forms depending on the nature of the collaboration. Common types include:

  • Co-Branding Agreements: Two or more companies feature their brands jointly on a product or service (e.g., cobranded credit cards, retail collaborations).
  • Brand Licensing Agreements: One company licenses its brand or intellectual property to another party in exchange for royalties or fees.
  • Sponsorship Agreements: A brand provides financial support or products in exchange for marketing exposure (common in events or influencer campaigns).
  • Endorsement Agreements: A personality or entity agrees to promote a brand in a way that aligns with its values and image.
  • Affiliate or Reseller Agreements: These focus on promoting or selling a brand’s products through third-party channels, often involving revenue sharing.

Each of these may require unique terms, especially regarding usage rights, liability, and termination procedures. A carefully structured branding agreement helps ensure clarity in these collaborations.

What Should You Include in a Brand Partnership Agreement?

A brand partnership agreement defines the rights, restrictions, and obligations of all parties involved in the joint venture. This agreement should be prepared carefully and worded specifically to protect each partner and define the parameters of the co-branding strategy. Some parameters include:

  • The goals of the branded partnership.
  • The term length of the partnership.
  • A timeline for the partnership, including any co-marketing promotions.
  • Termination clauses that allow the partners to end the agreement. For example, a partner may opt to end a partnership if the goals of that partner's business changes, if there is a breach of contract, or if the joint venture does not meet a specified performance threshold.
  • Licensing provisions that define how each partner's respective brands, logos, copyrights, and trademarks can be used in the branded partnership.
  • Exclusivity clauses that prohibit partners from entering into co-branding agreements with competitors.
  • Market data sharing agreements that require that the partners share any marketing data generated through the branded partnership.
  • The liability of each partner in case of a lawsuit.
  • The amount of money or capital each partner contributes to the branded partnership, including the responsibility for fees and expenses and distribution of any payments or royalties.
  • Each partner's responsibilities in completing tasks associated with the branded partnership.
  • Nondisclosure and confidentiality agreements to protect any sensitive data belonging to the partners' companies or the branded partnership.

Essential Legal Clauses in Branding Agreements

A thorough branding agreement should go beyond basic responsibilities and timelines. It should include legal clauses that protect each party’s brand assets and limit potential risks. Consider including the following:

  • Brand Usage Guidelines: Define how each party can use the brand name, logo, colors, taglines, and other brand elements. Specify the platforms and formats where these can be used and include requirements for visual standards and tone.
  • Approval Processes: Include clauses requiring prior written approval for promotional materials or advertising that features the partner’s brand. This ensures quality control and brand consistency.
  • Performance Metrics: Set clear KPIs or benchmarks (e.g., audience reach, lead generation, sales targets). Partners should agree on what constitutes success and what actions may follow if goals aren’t met.
  • Exclusivity and Territory Clauses: Indicate whether the partnership is exclusive and define the geographical regions where the branding agreement applies. This helps avoid conflicts with other brand affiliations.
  • Compliance with Laws and Third-Party Rights: Ensure both parties agree to comply with all applicable laws (e.g., FTC advertising rules) and confirm that no intellectual property infringements will occur.
  • Termination Rights and Post-Term Use: Outline the conditions under which either party may terminate the agreement, and specify how branding elements will be handled post-termination, including content takedown or removal of brand marks.

Frequently Asked Questions

  1. What is a branding agreement?
    A branding agreement is a legal contract between parties that defines how their brands will be used together in a partnership, covering elements like marketing, intellectual property, and usage rights.
  2. Is a branding agreement the same as a brand licensing agreement?
    Not exactly. While both involve the use of brand assets, a branding agreement focuses on joint marketing or collaboration efforts, whereas a brand licensing agreement allows one party to commercially use another's brand under license.
  3. Can a branding agreement include exclusivity clauses?
    Yes, branding agreements often include exclusivity clauses to prevent partners from collaborating with competitors during the agreement term.
  4. What happens if one party misuses the other’s brand?
    The agreement should include breach and termination clauses, along with legal remedies such as indemnification or damages for misuse of intellectual property or reputational harm.
  5. Do I need a lawyer to draft a branding agreement?
    Yes, working with a qualified attorney helps ensure that the agreement is legally sound, enforces brand protections, and aligns with your business goals. You can find experienced legal counsel on UpCounsel.

If you need help with a brand partnership agreement, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.