Franchising · 29 May 2018

How to protect the long-term success of your franchise business

protect franchise success
The success of your franchise will depend on how well you protect your brand, the business system and the franchisee network
Drawing his five-part franchising series to a close, Grid Law founder David Walker reveals what franchisors need to know about protecting their business through every stage of the franchise journey, from successful branding to terminating agreements.

As a successful franchisor there will be three key elements to your business. These are:

  • A strong brand
  • A business system you can replicate
  • A network of franchisees running their own profitable businesses
Your continued success (and the success of your franchisees) will depend on how well you protect each of these elements.

You protect your brand by registering it as a trademark. You then control how your franchisees use your brand by granting them a licence of these trademarks. This trademark licence (which may be part of the franchise agreement) explains exactly how they can and should use the brand in their own business.

You protect your business system by carefully explaining what it is and how it works in your operations manual. The franchise agreement then creates a legally binding obligation on each franchisee to keep the system strictly confidential and follow it according to your instructions.

Together, the trademarks and the franchise agreement enable you to keep tight controls over each franchisee.

In this article were going to look at three common situations where you may need to exercise these controls to protect your business and the businesses of your other franchisees.

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Take a look back at the rest of David’s franchising series

  1. Can I franchise my small business? 4 elements to successful franchising
  1. The advantages and disadvantages of buying a franchise when starting a business
  1. A step-by-step guide to franchising your small busines
  1. What to include in your franchise agreement and operations manual
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A franchisee wants to sell their business

The end goal for many successful entrepreneurs is to sell their business. This is their opportunity to cash in on all their hard work because they can often receive a lump sum payment that’s many times greater than their annual profit.

For an entrepreneur who has started and grown their own business, it’s entirely their choice to whom they sell their business and on what terms. However, when a franchisee wants to sell their business it’s not that simple.

As much as you may be delighted with how successful the franchisee has been, your priority will be the continued success of the business. Therefore, you will want to approve any prospective purchaser and place restrictions on who the franchisee can sell their business to.

The franchise agreement and operations manual will usually contain details of these restrictions and any minimum criteria the prospective purchaser must meet. For example, you may set minimum standards relating to the prospective purchaser’s business experience and financial standing.

You will also likely insist that they undertake (and pass) your training to ensure they know how to use your systems effectively.

Alternatively, you may want to give yourself a right of first refusal to the buy the business of any franchisee who wants to sell.

The death or incapacity of a franchisee

Part of my role as a solicitor is to raise the difficult what if? questions that nobody really wants to talk about. In my experience, addressing these issues before they occur usually leads to the best outcome for all involved.

One of these situations is what happens if the franchisee dies or becomes so seriously ill that they can’t run the business? (When I refer to the franchisee in this situation Im assuming they’re a sole trader, but this is equally relevant if they’re the majority shareholder and managing director of a franchisee company.)

This will be a difficult and emotional time for the franchisee’s family and it’s inevitable that without your intervention, the business will suffer. So, as supportive and sympathetic as you will be to their personal situation, in reality the best way you can help is to ensure that the business continues.

To allow this to happen, the franchise agreement will usually contain ‘step in? rights (discussed further below) or the right for you to appoint a manager who can continue running the business.

it’s also common for the franchise agreement to prevent the franchisee’s business from automatically transferring to a family member when the franchisee passes away.

The reason for this is the same as when a franchisee wants to sell their business. You must ensure that someone suitable continues to run the business to protect the brand and system for everyone’s benefit.

In reality, this is also best situation for the franchisee’s family. It maintains the value of the business until it can be sold and the executors of the deceased’s estate don’t have the additional burden of running it according to a strict system at a difficult and emotional time.

When you (the franchisor) needs to terminate the franchise agreement

The ultimate control you have over your franchisees is the right to terminate their franchise agreement. Their whole business is built on their entitlement to use your brand and system. When you terminate the franchise agreement, you’re removing this entitlement and as you can imagine, this could be disastrous for their business.

So, when should you exercise this right?

Clearly, it’s going to be a serious situation and the circumstances in which you can exercise this right should be clearly set out in your franchise agreement.

For example, one of the attractive features of a franchise business is that it generates consistent results. When customers walk into any branch of a franchise business they know what to expect because all franchisees must follow the same proven system.

If you have a franchisee who doesnt follow your system, their results will be inconsistent with the other franchisees. This will be disappointing for your customers because they will no longer receive what they’re expecting.


 
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ABOUT THE EXPERT

David Walker is the founder of Grid Law, a firm which first targeted the motorsport industry, advising on sponsorship deals, new contracts and building of personal brands. He has now expanded his remit to include entrepreneurs, aiding with contract law, dispute resolution and protecting and defending intellectual property rights.

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