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Vol 14 (2016) - Issue 6

Brexit implications for trade marks

Nick Aries, Bird & Bird LLP, London, UK

This article discusses the implications of Brexit on EU Trade Marks (EUTMs). This is relevant to franchisors and franchisees whose franchise agreement contains an EUTM licence and where the territory includes the UK. The article briefly considers what will happen to EUTMs in the UK after Brexit, before setting out key messages about implications for EUTM licences.

Legal and regulatory concerns raised by franchisees: some preliminary Australian evidence

Michael T. Schaper, Ph.D., Deputy Chairman, Australian Competition & Consumer Commission; Adjunct Professor, John Curtin Institute of Public Policy, Curtin University, Western Australia

Few franchising regulators compile or publish statistics on franchisee complaints and enquiries. Using data collected over four years, this article briefly outlines the contacts which the national franchising regulator in Australia (the Australian Competition & Consumer Commission) receives from franchisees, and attempts to identify some characteristics of the franchisees most likely to complain. Complaints and allegations by franchisees about breaches of the law (be it the Competition and Consumer Act, the Australian Consumer Law or the Franchising Code) represent about 70-80% of the contacts received each year, whereas general queries or simple requests for more information account for only 20-30%. The most common complaints are about alleged breaches of the Code; these typically account for 55-75% of complaints received in a given year. This is followed by a lesser number of allegations about breaching the Australian Consumer Law (13-24%); there are also numerous allegations (11-17%) which in fact fall outside the parameters of the laws that the ACCC administers. Most contacts are from micro-sized franchisees, followed by small-sized firms. Contacting franchisees tend to be either newly started (0-2 years old) or relatively mature, well-established operations (5-10 years old). Complaints are relatively equally distributed across different states, closely in line with the overall distribution of both businesses and the general Australian population.*

So franchising legislation is being proposed for your country: some unsolicited suggestions

Philip Zeidman, DLA Piper, Washington, D.C., USA

The United States first adopted franchise specific regulation with the promulgation of the FTC Franchise Rule in 1979 to address concerns about asserted abuses in franchising. With some exceptions, including France and the Province of Alberta, franchising legislation remained the exception until around the turn of the century. Since then several jurisdictions around the world have adopted disclosure and/or relationship laws. This article considers how and why these laws were adopted, and the recurring flaws and undesirable consequences which characterize so many of them. The author sets out a range of questions to be asked and arguments to be considered when assessing proposed new franchising legislation.

The outer and inner dimensions of protecting franchising concepts

Dr. Stojan Arnerstål, Uppsala University, Uppsala and Anders Fernlund, Nova, Stockholm, Sweden

In recent years there has been a lot of discussion on legislation protecting the franchisees in a franchise system. Many countries have adopted disclosure laws and some countries have adopted relationship laws. However, one forgotten area of legislation is how the franchise system itself may be protected. What type of legal norms protects the franchise concept as such? This article focuses on contract and trademark law.