Franchising Vs. Licensing A Business

FRANCHISE VS. LICENSE

What’s the difference between franchising vs. licensing a business? Is a license business model really different from a franchise business model? Whether you’re a franchise attorney or not, the starting point in any analysis is to consider the legal aspects, then the business aspects. This article focuses on the legal aspects. A franchise always includes a license of the brand and operating methods, along with assistance (training, an operations manual, etc.) or support (providing advice, quality control, inspections, etc.). A license that is supposedly “not a franchise” but contains these elements, is a disguised, illegal franchise with significant legal ramifications and risk.

REGULATORY BACKDROP

In considering the legal aspects, begin with the following premise that applies to both options:
If you put someone into business (or allow them to use your business brand/mark) this transaction will normally be a regulated activity, subject to substantial penalties for noncompliance. If it looks like a duck and walks like a duck, it’s a duck. This guiding legal principle (and common sense), coupled with the business aspects of selling a franchise vs. a license (discussed below) will answer most questions.

FRANCHISE & BUSINESS OPPORTUNITY LAWS

Why does regulation exist? Arising from the ashes of documented past abuses, where tens of thousands of individuals lost all of their worth by investing in nonexistent or worthless business endeavors, the government has devised two principal consumer protection mechanisms:

(1) franchise disclosure-registration laws; and
(2) business opportunity laws.

The thrust of these laws is to require sellers to give potential buyers enough pre-sale information so informed investment decisions can be made before money changes hands, contracts are signed and sizable financial commitments are undertaken. It doesn’t matter what terms are used by the parties in contracts or other documents to describe their relationship. For example, the contract may call the relationship a license, a distributorship, a joint venture, a dealership, independent contractors, consulting, etc., or the parties may form a limited partnership or a corporation. This is entirely irrelevant in the eyes of governmental regulators,. Their focus is not on semantics, but whether a small number of defining elements are present or not. Today sellers are subject to a complex web of regulations that differ from the federal level to the state level and even differ widely from state to state. Murphy advises through Franchise my business.

DON’T FALL FOR TODAY’S SUCKER PLAY

The internet is filled with statements like “Compare high cost franchising to low cost licensing.” Firms or individuals that say calling it a “license” dispenses with legal regulations are delusional and wrong for at least three reasons:

(1) Common Sense – if it was really that easy, everyone would be doing it that way. The 3,000-plus companies that are franchising are not stupid. Many can afford the very best legal talent available. It’s not a coincidence they’re all franchising and not licensing;

(2) Even if the relationship can be structured so it doesn’t fall within the definition of a “franchise,” the backup regulatory protection mechanism – business opportunity laws (discussed below) – will certainly apply. And complying with these is a lot more expensive than going the franchise route; and

(3) Any analysis must include federal law (franchise and business opportunity) as well as applicable state laws covering the same dual prongs (franchise and business opportunity).

This all reminds me of some financial planners who still advise their U.S. clients that filing U.S. income tax returns is not required under their interpretation of the U.S. Constitution. It just doesn’t work that way. Actually it does work, but only until the IRS catches up.

The “licensing avoids franchise regulations” spin (which, not surprisingly, is not accepted in the legal community) also only works until the company gets caught. The logic (not) goes something like this: licensing arises under contract law, not franchise law and therefore franchise law doesn’t apply. Sound’s just like the “you don’t have to file a tax return because tax laws don’t apply” argument.

REAL LIFE EXAMPLES

A license attorney prepared a dealer license agreement and ignored the FTC Franchise Rule disclosure requirements (“licensing arises under contract law, not franchise law”). The dealers became disgruntled and hired a litigation attorney who sued the company for, not surprisingly, selling disguised illegal franchises. It cost the company $750,000 to go to trial in federal court to answer the question “Is our license contract an illegal franchise?”

“Is our license really a disguised, illegal franchise?” is always a very expensive question to answer. Unless spending $750,000 is your idea of a good investment. Trying an end run around the franchise disclosure laws by calling it a “license” or a “dealership” may be a cheaper way to go initially. But it’s only a question of when (not if) you will be caught. Be prepared to spend mind-boggling amounts down the road when the disguised illegal franchise is challenged for what it really is.

In a 2008 case, Otto Dental Supply, Inc. v. Kerr Corp., 2008 WL 410630 (E.D. Ark. 2/13/08) another disguised franchise vs. a license was at issue. The company claimed it sold just a license, not a franchise and the franchise laws simply didn’t apply. It made a motion for summary judgment to have the case thrown out of court.

The federal Eastern District Court ruled against the company and ordered the case forward. It said whether or not the license was really a franchise was up to a jury to decide. Jurors are like most of us, and apply common sense to the simple defining elements of a franchise. They are not swayed by semantic arguments like “licensing arises under contract law, not franchise law and therefore franchise law doesn’t apply.” Another very expensive franchise vs. license learning lesson.

And here’s a final example. In Current Technology Concepts Inc. v. Irie Enterprises Inc. the Minnesota Supreme Court concluded a licensing arrangement was a franchise and held the franchise company liable for damages in the amount of $1.3 million for violating the Minnesota Franchise Law.

Hearing “after the fact” that the arrangement was an accidental, illegal franchise and you’re liable for $1.3 million was the last thing that company ever wanted to hear. Perhaps they got themselves into this mess by listening to statements found on the internet that franchising is expensive and licensing inexpensive. Again, if something sound’s too good to be true, it usually is and this should be a big flashing red light.

ROOTS OF LICENSING

It is important to remember the roots of licensing: artwork and character licensing – where the owner (licensor) grants permission to copy and distribute copyrighted works, such as allowing Mickey Mouse to appear on t-shirts and coffee mugs.

The most recent explosion in license law is the licensing of software on personal computers. Or, the owner of a trademark allows another a license to use its mark as a way of settling a trademark infringement suit. These are common and accepted forms of licensing. However, the attempt to use licensing as an end-run around the franchise laws is a corrupted use licensing was never intended for.

This is not to say licensing a business may be a viable option in foreign (out of U.S.) transactions where U.S. laws don’t apply – but these are a very small minority. Most transactions and contracts cover U.S. activities and residents, so the franchise vs. license question is usually an easy one to answer.

Enjoy franchising business opportunities and be your own boss

All those with the zeal to be their own boss always get different ways to lead, one is through franchising with a good brand, second is business for sale and the other is establishing a whole new business. However, all of them require big amount of investment in the initial stage. But only franchise comes up with fast recovery along with good market reputation. You will get several business opportunities related to franchising. However, there are always chances of getting failure in establishing a new business. Therefore, if you have been looking forward to own a business of your own, always give preference of franchise. There are various benefits that come along with franchising.

Below mentioned are the top 3 benefits of franchising rather than establishing a new business:

Complete support:

Franchising with a good brand allows you to lead a company along with full support from the parent company side. The in-build support team of the company is always there to support you in all your tasks and decisions. After getting franchise there is no need to hire a different support team as they are already there to help you in accomplishing all your endeavors. In case you come across any problem with the product then they are always there to handle the entire situation quite efficiently. The support team is always there to guide you in your entire business front. As you have entered the franchise business recently therefore, you will require help to understand every perspective. This is where the support team comes into the picture and assists you in leading ahead the company. After attaining UK franchiseyou may enjoy doing business with a relief of support from the team.

Established market reputation and brand value:

Franchising with an established business lets you enjoy its well-known market reputation along with strong market value. You actually attain a readymade recognized brand with rich clientele and consumer base. Customers recognize the brand therefore end up preferring it which further results in enhanced profits. As the brand is in the market for the past many years and have earned their respect and assurance enables you to gather more respect. You will always be recognized with the parent company’s logo, clients, uniform and products which will further let to earn more money and respect as well.

Pre-planned business strategies:

After franchising with a reputed brand there is no need to develop any strategy or business plan as you get per-planned company strategy. You don’t have to hire any marketing experts and advisers to establish any business marketing plan. All you have to do is simply follow the strategies and guidelines which are already there for you. The parent company already boasts its clients and consumers to whom you have to manage and serve quality products.

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Franchising Solicitors Can Help With Common Questions

You may already know the basic bones about franchising and what it could mean for you. If you don’t want to create your own business from scratch, the next best thing could be to buy into a franchise. In fact it can often be a better solution because the framework of the business is already there for you, and it has also been proven to be a success.

However it would be unwise to go ahead and dive into the first franchise you find without getting decent franchising legal advice first. This is available from franchising solicitors – solicitors who have chosen franchising as their particular speciality.

Before you go and find a solicitor to help you, it is a good idea to think about a franchise opportunity so you have some good questions to ask. In some cases it might be better to narrow down your choice of franchises first. This means you will have a good idea of the type of franchise that will suit you, so that you have some concrete questions to ask.

Franchising solicitors can give all kinds of franchising legal advice to budding franchisees. Don’t be afraid to ask any of the questions you are thinking of – the chances are that other people will already have asked them at some point! It’s good to have all your questions answered before you make the final decision on which franchise to opt for. Remember that this is a major decision in many ways – financial as well as business related – and it will affect your life in lots of ways. It makes sense to get as much franchising legal advice as you can before you make such a decision.

It’s worth remembering that specialist franchising solicitors have lots of experience in the field. They will have dealt with many different franchise situations and clients. This means they will likely know the answers to most or all of the questions you want to ask without any research needed at all. While you may be able to find the answers to some of your questions initially without help, you are bound to have some unanswered questions at the end. These will need to be resolved before you go ahead and invest in the franchise you have narrowed your choice down to.

In any event franchising solicitors will be vital to you if you wish to make everything go as smoothly as possible. From answering your initial questions to providing franchising legal advice every step of the way, you can be sure you will arrive at the best possible situation.

What Is Franchising

You are an unhappy office staff, toiling more than ten hours a day, and noticing playing by the rules does not give you what you really wanted and it only made you old and busy.

Going entrepreneur came into your mind. But, with all those news about traditional businesses closing left and right, the terror stop you from taking action.

However, you find in the newspapers, in the TV and in the internet, firms offering franchising. Maybe this is the type of business for you. And you are intrigued. You ask yourself, what is franchising, anyway?

This blog post will tackle the definition of franchising.

Franchising is a practice where an already established allows another entity to use the company’s already successful business solution. The franchisor (the company that provides the business solution) and the franchisee (the entity that uses the business model) enter into a contract to use and capitalize on the companys successful business model and/or its existing brand awareness (most often called Goodwill) for a faster return of investment.

In return, franchisees expend two payments in general. First is a one time investment, called the franchise fee, and the second is royalty fee, which is a recurring expense, for the continuous usage of the business model, advertising and training costs. Royalty is usually 3-10% of gross profit.

Franchising is a interconnected network of mutual business relationships that permits a number of people to share:

– A brand recognition

– A successful method of doing business

– A proven marketing and distribution system

Thats pretty what much franchising is.

One common misconception about franchising is the phrase, “I am buying a franchise”. You are not buying; you are investing onto the business. What you will own are the physical assets that are needed to act upon the franchise, like the building and equipment.

For a business to work as a franchisor, it must have a good track record of being profitable and the business model it employs is easily duplicable. Otherwise, that business is not suitable for franchising.

What’s so great about franchising?

For the franchisor, the company can grow and gain more chains while lessening the traditional risk and liability of doing so. It is also a great way to gain more brand recognition and reputation.

For the franchisee, they are capitalizing in an already proven business model and recognized brand. In fact, a franchising business is 90% proven to be successful. With a success rate like that, who can go wrong?

The Nature of Franchising

Many people have been considering owning and managing their own business. Getting into business is their way of achieving their financial goals and needs. Some are also considering getting into the franchising field.

What is franchising? It is the method of entering a franchise agreement wherein two parties agree to do business with contractual provisions. The setting would be, one party has an idea of the business while the second party will do the business of the other party and pay for its name and reputation.

Many prefer franchising than setting up their own name. That is because they do benefit from it. One benefit it provides is the speed of expansion that one may get once he has entered the franchising world. There is already a brand image since the company will have one common system that will be followed.

Franchisees may also enjoy from discounts on the supplies and raw materials needed in operating the business. Franchise networks buy in bulk, which makes more room for greater discounts among franchisees. Therefore, if the supplies and raw material are cheaper it will be easier to compete with other establishments.

There is also a greater opportunity for a higher profit. The return of investment is higher since the return of revenue will be lower. This means that the percentage of pure profit is higher.

Franchisees that are within the network are able to offer knowledge that has been learned based on their experiences in the field. This is a knowledge that is not learned in business schools. Getting connected with experienced franchisees can also help in expanding the business overseas where there are greater opportunities.

Here are some tips to consider when getting into the franchising business.

1. Franchising as a business is a different kind of business opportunity. It is only recommended that a person ask questions first before entering franchising. It is also advised to attend workshops and seminars before entering it. The person should gather enough information regarding the business he would like to franchise.

2. Seek some advice. When in workshops and seminars, the person should grab the opportunity to seek advice from those who have enough experience with franchising. Seminars are a good way to connect with many franchisees and they can help a lot in giving advices that is based on their experiences.

3. A person that is considering the franchise business should also beware of scams. People who enter this field should be aware of the pitfalls and challenges that may be encountered in the process. There may be many offers for franchise once they have learned that the person is interested in it. However, he should be careful enough in choosing which business to franchise. A research on the stabilty of a certain company is recommended. He can also try a background check of the person offering the deal.

4. The person should be able to learn lessons from past decisions made in this field. Lessons learned might not be from him but from others who have encountered wrong decisions. One major lesson that has been learned by franchisees is that big companies and brand names offer limited and flexible negotiations in the franchise system.

When entering into the franchise business, there will be a lot of opportunities for greater profit. However, one should also be prepared on the challenges that may be encountered. It is important that one is dedicated and prepared in order for the franchise business to be successful.

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