Category: 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?

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.

Accessibility of diverse business opportunities is creating a lot of confusion among aspiring entrepreneurs to zero down on a single business opportunity. To add to this confusion is the increasing trend among brands whether service or product to opt for franchise route for expansion. No doubt taking up a franchise business opportunity is always preferred over opting for an independent business, still it is difficult to zero down whether to get associated with service franchise brand or retail franchising one. Franchising provides all the know-how and expertise of running a business successfully, which an independent business can never provide. From selecting the right location to recruiting the staff and from designing the logo to creating a brand image, everything will be done by the business owner which in not a case with franchising. No doubt franchising is successful business formula yet selecting the right business opportunity needs lot of care.
Franchising is divided into two major categories: Business or service franchising and the second one is Retail franchising. The brands that are providing services to the consumers are called service franchises and the brands that are providing product or are selling products or merchandise from a retail outlet and is expanding via franchising is called retail franchising.
The major sectors or industries that may fall under service franchising include food and beverages, education, health and beauty, play schools and activity centres, pre-school education, IT education and training, business services, consumer services, car care services and school education.
Retail franchising mainly include industries like apparel, footwear, jewellery, pharmacies, FMCG, consumer durables, furniture, electronic goods, home appliances and so on.
Some factors need to be considered before taking up a final call on the franchise business opportunity by the aspiring entrepreneur. Right business selection would definitely decrease the risk of failure and would elevate the levels of success. The article presents some measures; if taken care of at the initial phase of selection of business opportunity, the percentage of success is higher at least, if not guaranteed.
Search and research: Talk to various business owners for experience and knowledge in the areas that interests you. Understand the need of the market and ask questions.

Analyse yourself: It is very important to find out if you are a business person or not. Write down on a paper describing why you want to take up the business opportunity at all. Know your marketing and sales qualities and understand your family obligations.

Check your finances: Take a note on the kind of investment you can make. After having analysed the budget search for the business opportunities that suits you.

Check business model: Search for various business models available in the market. Make your mind if you would like to opt for franchising or independent business.

Select right industry: Having short-listed the industry for which you want to take up a business talk to experts and gather as much information as possible. Evaluate the opportunity in terms of investment required in terms of money and market value of the brand.

Take financial assistance: Talk to your accountant about income and profit projections made by the franchisors and talk to a solicitor about the franchise agreement.

Zero down on a wise decision: Analyse everything before taking up a final call. As you will be putting in your hard earned money in the business so do not just rush into the decision. Be 200 per cent sure, before making an investment.

Conclusion:
The availability of diverse business opportunities in franchising as well retail franchising on one hand offers plenty of prospects where as on the other creates lot of confusion, leading to lot of confusion. A self analysis followed by adequate search and research is the best foot forward for right business opportunity.

With new business opportunities come up in the franchising industry, aspiring entrepreneurs are finding the concept of -Master Franchise- as a better option. Master franchising is a very dynamic and lucrative business concept of the franchising industry. The Master Franchisor is provided the responsibility of helping develop and grow the franchise brand in an exclusive territory. The master franchisor buys the development rights to an exclusive territory. In many cases this territory can be quite extensive. The master franchisors work towards generating new business opportunities within that specific area.

Key responsibility areas of a master franchisor:

To facilitate franchise sales of the particular brand to qualified prospective buyers. The franchise company will provide assistance in the process of selling a franchise business.

The Master Franchisor needs to own and operate at least one unit within his territory. This unit will be help in generating a revenue stream, where prospective buyers can come and see the working module of the business.

The master franchisor also has the responsibility of providing training to prospective buyers.

The master franchisor needs to analyze the territory popular and the number of potential units a specific territory can accommodate.

Also needs to work out on new business opportunities so that the brand gets more popular.

Essential qualities of master franchisor’s

To buy the best master franchising business opportunities ideas, an entrepreneurs needs to possess certain qualities, such as:

Familiarity with the local market of the territory for which master franchising is offered.

Experience in the relevant industry. This is not always essential but having experience can be an added benefit for the franchisor.

The master franchisee must have the budget to purchase the franchise rights, set up units and develop the franchise business in a particular territory.

Having management skills is must for owning the rights of master franchising.

Various sources of income for master franchisors:

With master franchising business opportunities ideas, the franchisor enjoys new ways of generating income which is generally higher as compared to any other normal franchise business.

Franchise fees: In a master franchise network you receive a franchise fee when you sell a franchise. In a typical master franchise program the owner gets a good share of the franchise fee.

Ongoing royalties: With the opening of a new franchise outlet within the territory of a master franchisor, the owner gets benefitted of additional royalty income for the rest of the life of that franchise. This is the ultimate income source.

Products or additional services: Often products or additional services needed by the franchisees are sold at the master franchisor’s outlet. This is a great source for additional income. But for this you need to look out for best business opportunities in master franchising category.

Real estate: If real estate is involved with the franchisee’s location, often the master franchisors gets involved in the development of sites and doors get open for receiving other types of real estate related income.

In conclusion, master franchises are best option for entrepreneurs with sufficient financial resources to develop a network of franchises in a specified country or region. However, you need to look out for the best business opportunities in this area to enjoy success.

If you’re actively pursuing buying a gas station, excellent idea! But should you invest in a franchise or an independent station? To be as sure as possible that you’re making the right choice, take a bit of time studying detailed answers to questions similar to these:

Question #1: Who is responsible for environmental issues?

Environmental compliance issues are the biggest difficulty in buying a station. If you run afoul of environmental laws, and have to pay for costly clean-ups or new equipment, it could be the end of your enterprise. I’m not exaggerating! Here are a few instances that you may not have considered . . .

* Underground leaks. If one of your tanks leaks, who pays for the clean-up – you, or the gas company who sold you the franchise?

* New equipment. If every station in your state is suddenly required by law to install a new kind of vent for underground tanks, you will have to pay for that equipment if you’re an independent.

* Site remediation. If you sell your station, who pays for removing the underground tanks, cleaning up the soil and getting the certification that states your property’s remediation (clean up) has been approved by the state?

Question #2: If you buy a franchise, can you stop worrying about environmental problems?

In general, the answer to this question is yes. Your parent company (Exxon, Mobil, etc.) will install any new equipment that the state requires, and will step in to do the clean-up if one of your tanks suddenly develops a leak underground.

However, you should never make any assumptions in this area. You and your attorney have to comb through your franchising agreement to understand exactly what’s covered, and what’s not!

Question #3: If I’m buying an independent, what do I really own?

If you buy a small independent station with no ties to a major brand of gasoline, the answer to that question is relatively straightforward. You’re probably buying the business as an entity, as well as the real estate where the business is located, along with the tanks, pumps and other equipment that you’ll need to sell gasoline. However, the picture can become complicated somewhat if you are buying the business, but not the real estate (land, buildings). You and your attorney need to pin everything down.

Question #4: If I am buying a franchise station, what do I really own?

The answers to this question can be more complicated than you’d expect. After you purchase, for instance, you may end up owning the building – but not the land and equipment, which are owned by the parent company. Or you could lease the building and the land, but have the canopies, pumps and other equipment owned by the parent company.

Remember, different franchising organizations set up their ownership packages in entirely different ways. To find out if the deal is right for you, you’ll need to go over all franchise plans and documents closely with your attorney.

Question #5: If it’s a franchise, who pays for what?

If you buy a franchise, you’ll probably be surprised to find out about all the things that your parent company expects you to pay for. Some or all of these items might not be covered, so be sure to ask ahead of time:

1. Insurance and Repairs – You may have to pay to insure and maintain the parent company’s pumps, signs and canopies.

2. Rent Increases – If the parent company leases you the grounds and buildings, be prepared to get hit with significant rent increases every two to three years. Make sure you get these terms clearly spelled out in the franchise agreement.

3. Promotional Items – When the parent company decides to sell a new kind of coffee in your convenience store, or to offer special gas discounts on Tuesdays, and decides to advertise those offerings with special signs – will you be responsible for paying for them?

4. Payroll and Benefits – Don’t expect the parent company to pay salaries or provide benefits for your employees. It’s the one area where you’ll find that you’re suddenly operating like an independent business.

Copyright (c) 2009 Richard K Parker