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Ruling: In the contract’s "recitals," it says that the chain has registered trademarks, and all agree that while they have been operating branches for several years with recognizable logos and advertisements, none of these are registered, which def were unaware of. The Maraham Padowa (Shut 44) says that a contract with one objectionable provision does not invalidate the entire contract/agreement, and the Rama (Choshen Mishpat 51:6) rules this way. However, this is not so if other elements of the agreement depend upon that provision.
We need to determine whether def would have entered into the agreement had they known the chain had no registered trademarks, as, if not, the agreement was a mekach ta’ut. If there is a societal standard, we follow it (Rambam, Mechira 15:5). When it is less broadly clear, we follow the assumption of the buyer’s mindset (ibid. 16:5; Shulchan Aruch, CM 232:27).
From def’s lack of interest in finding out about the registered trademarks, it is likely that whether they were registered or not was not a major factor. Rather, the fact that the chain was a known entity was much more important. Customers who recognize the label do not care if it is registered. The chance that competitors will "steal" the trademarks is not great. The "blemish" is also one that can be easily remedied, as pl has recently applied to register the logos the chain uses, in which case we prefer fixing the lacking to undoing the agreement (see ibid. 5). While the Rama (ad loc.) limits this to blemishes that do not change the basic identity of the object (see also Netivot Hamishpat ad loc. 7), in this case, the franchise with its many plusses, is the same franchise even if its logos are not registered.
Therefore, the lack of registered trademarks does not void the sale, although this lack will have some impact to be discussed later.
Bemare Habazak - Rabbis Questions (659)
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Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 420 – an address from 1941
P'ninat Mishpat A Non-Contractor in Changing Times – part I
(based on ruling 85128 of the Eretz Hemdah-Gazit Rabbinical Courts)
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Based on Aroch Siach, p. 221 (Rav Shaul Yisraeli)
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Moreshet Shaul Hashem Is your Shadow – part II
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Parashat Hashavua Happiness for the Right Reasons
[With painful longing, we share these divrei Torah from our co-Rosh Kollel for close to 40 years, Harav Moshe Ehrenreich zt”l.]
