Protect Trade Names from Unfettered Use by Owner
If you're a high-profile tenant, chances are that the owner of your office building or shopping center wants to mention you—and your recognizable trade names, trademarks, logos, or designs—in its marketing materials or on its website. This can help the owner attract prospective tenants to its building or center. But you may not want the owner to use your trade names, trademarks, logos, or designs for its financial gain, especially if there's little or no benefit for you. Plus, you'll probably want to keep tight controls over the use of those items, whether in print or online.
If the owner uses your trade names, trademarks, logos, or designs without your permission, you have the right to stop this unauthorized use. After all, your name and identifying marks are “intellectual property” and a valuable asset. But if you want to avoid a long and messy dispute, you should protect your rights up front in your lease.
You can do this by setting conditions on your approval. Have the owner agree in the lease that neither it nor any related entities (such as its affiliates) can use any of your trade names, trademarks, logos, or designs in the printing, publication, or distribution of its marketing materials or on its website unless it gets your prior written approval. If you don't bar verbal approval, it will be easier for the owner to falsely claim that you gave your approval.
Also, get the right to withhold your approval, in your “sole and absolute discretion.” This way, you can decide what's best for you, without the owner's interference, even if the owner claims it's “unreasonable.” For instance, you may decide to withhold your approval if you don't care for the quality of the owner's marketing materials or if you feel the owner's use of your trade names, trademarks, logos, or designs would harm your company's brand or image. Or you may decide to grant your approval only if the owner will agree to give you lease concessions or other financial incentives.
Additionally, don't agree to grant your approval by a set deadline; if you do and you miss the deadline, the owner might say it took your silence for approval. Add this language to your lease after consulting with your attorney:
Model Lease Language
Landlord agrees that neither Landlord nor any of its related entities shall use Tenant's trade names, trademarks, logos, or designs in the printing, publication, or distribution of any advertising, marketing materials, Internet website, or other materials or medium, without obtaining Tenant's prior written approval, which may be withheld in Tenant's sole and absolute discretion.