Our franchise lawyers are able to assist with all legal aspects related to franchising agreements and commercial litigation pertaining to franchising.
In recent years, franchising (a very specialised and unique form of licensing) has become an increasingly popular way of doing business. One of the explanations for doing this is that franchising combines the strength of their corporations with those of small businesses. It is a relatively low-risk way for people to get into business themselves and offer people the freedom to earn, manage and to direct their own business, while having the support of an established business.
At the same time it also provides a means for companies to expand effectively without incurring the high overheads and management difficulties usually associated with the establishment of a branch network.
Frequently Asked Questions about Franchising
A franchise operation is defined as a contractual relationship between a franchisor and franchisee in which the franchisor offers or is obliged to maintain continuing interest in the business of the franchisee in such areas as know-how and training.
The franchisee operates under a common trade mark, format or procedure owned or controlled by the franchisor, under which the franchisee has or will make a substantial capital investment in his business from his own resources.
- Product and trade mark/name franchise – A product or trade mark franchise is the simpler form of franchising in which the franchisee is only entitled to use the franchisor’s name or trade mark and product.
- Business format franchise – In a full business format franchise, the franchisee uses the franchisor’s entire business concept, which includes the name, trade marks, copyright, goodwill, know-how, trade secrets, trade dress and similar intellectual property.
The franchisor’s obligations are divided into two:
- Initial obligations – The franchisor will assist with the setting up of the premises or outlet, furnish the franchisee with the operations and procedures manual, disclose the entire franchise system to the franchisee and train the franchisee.
- Ongoing obligations – The franchisor’s ongoing obligations include additional necessary training from time to time and also to assist with problems, management and to provide guidance, in addition to the ongoing management and development of the franchise system.
The obligations of the franchisee are usually fairly extensive. These should include provisions that the franchisee should operate the franchise strictly in accordance with the franchise system, usually as set out in the operations manual. The operations manual should include not only standard terms and conditions i.e. pay sums timeously but provisions to the effect that the franchisee should enhance and promote the intellectual property, goodwill and reputation of the franchise at all times. In addition, the franchisee should also advertise and promote the franchise when appropriate.
These provisions are essential to ensure a common brand, identity, consistency and quality of the Franchise. The franchisee should also in this regard allow regular inspections so as to ensure quality control.
A Franchise Agreement is a sophisticated form of Licence Agreement. The core of franchising lies in the rights and obligations of both parties and understanding the legalities of what you are getting involved with is perhaps the most crucial element to choosing the franchise route. Setting up a franchise system or obtaining advice on a franchise agreement and on intellectual property are complex areas of law.
Once you’ve made your decision you need to consult with our expert franchise attorneys who have experience in business and contract law and will ensure that the franchise contract is fair to both parties. Whether you are pursuing a wish to learn how to franchise your business or need assistance on assessing the viability of a franchise model and contract, speak to our experts today.
Our Franchising team is able to assist with all legal aspects related to franchising agreements and litigation.
How our Franchise Attorneys can help you
- Strategic structuring and set up of franchise systems
- Protection of intellectual property including:
- registration of trade marks/brands
- copyright advice
- patent and design advice
- know-how and trade secret advice
- Advice on the Consumer Protection Act (CPA)
- Preparation of business focused competent franchise agreements
- Review and updating of disclosure documents
- Auditing and updating of franchise agreements
- Auditing of franchise business systems
- Ongoing successful management of franchisees
- Dispute resolution services
- Licensing and commercialisation of intellectual property
- Distribution and agency agreements
- Company registrations and secretarial services
- Companies Act Compliance
Contact one of our franchising law professionals
Andre Visser is a partner and Head of the Corporate and Commercial Department at Adams & Adams. With over 25 years of post-qualification experience, he has extensive corporate and commercial knowledge that covers mergers & acquisitions, cross-border transactions and all legal aspects of investing into South Africa.
Danie’s clients range from entrepreneurs and technology start-ups to well-known multi-nationals. Clients often seek his advice regarding the establishment of an enterprise in South Africa, and he drafts and reviews agreements needed for their operations and to grow their businesses.
Eugene Honey has specialized in Trade Marks and Copyright matters, as well as Commercial IP matters including Franchising and Licensing for approximately 25 years.
Gabriela is an Associate at Adams & Adams in the commercial, property and litigation department in Johannesburg.
Kineta is an Associate in the Corporate and Commercial Department in Johannesburg. She is an admitted Attorney of the High Court of South Africa and holds an LLB degree from the University of KwaZulu-Natal.
Lebohang Mosala is an Associate in the Trade Mark Prosecution Department. She has experience in conducting trade mark availability searches, filing trade mark applications and further prosecution thereof. Duties also include providing opinions relating to copyright matters.
Sibusile has been retained as an associate in the corporate commercial team in our Johannesburg office.