Franchising

Clayton Utz's dedicated franchising law experts have significant experience in relation to the regulation of franchise systems and disputes between franchisors and franchisees.

Whether you're an established or emerging company, Australian-based or international, you'll need expert advice to navigate the unique legal and commercial issues in franchising your business model and systems.

At Clayton Utz, we build longstanding relationships with some of the country's biggest franchisors – so they can build longstanding relationships with their franchisees.

We've helped franchisors in a wide range of industries, from retail & fashion, food & beverage and hospitality & leisure, to high technology and consumer and professional services, to find the franchising model that works for them.

But while we focus on giving our clients expert guidance on managing those relationships, we know that not all disputes can be avoided. But we also know that litigation is not always inevitable either. We turn to alternative dispute resolution procedures to avoid court proceedings wherever possible; if we can't avoid them, we deploy our market-leading litigation expertise to ensure the dispute can be resolved efficiently and cost-effectively.

It's the same with regulatory scrutiny. We use our deep knowledge of regulatory bodies, such as the ACCC, to help clients understand regulators' drivers and priorities, and promote a culture of compliance. If regulatory investigations arise, we leverage that knowledge to help you respond, calmly and effectively.

Our work for franchisors has covered all aspects of franchising law and commercial arrangements, including:

Structuring your franchise model

  • reviewing existing or proposed arrangements to determine whether they will be subject to the Franchising Code of Conduct, or raise any issues under Australia's competition laws
  • structuring distribution systems to ensure they do not fall under the Franchising Code
  • advising on the sale of franchise businesses and rearrangements of systems

Creating your franchise agreement

  • preparing detailed standard form franchise agreements
  • preparing and updating disclosure documents
  • advising on the protection of the franchise system's key brands, including securing trade mark registrations
  • considering other intellectual property rights used in the franchise system and ensuring that they are properly protected

Managing the franchisee relationship

  • advising on the franchisor’s position under current franchise agreements
  • advising on marketing fund issues and the franchisor’s marketing obligations
  • advising on appointments of new franchisees and termination of existing franchisees
  • reviewing proposed marketing campaigns
  • assisting with compliance systems including designing and implementing competition and consumer law compliance programs
  • advising in relation to customer loyalty and gift programs
  • managing franchise disputes.

They're very good at responding almost immediately and nothing is ever a problem for them to deal with.

   –

 Chambers Intellectual Property, 2018

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Experience

Automative industry

  • Volkswagen Group Australia: we advised on Dealer Agreements and Franchising Code of Conduct Disclosure Statements for Volkswagen Group Australia in consultation with representatives from the Group and its German parent company, Volkswagen AG, and transitioning from the previous franchisor. We also provided advice to Volkswagen Group Australia on various Franchising Code of Conduct issues with dealers.
  • Toyota: we're advising on compliance with the Franchising Code of Conduct, the Australian Consumer Law, and the Competition and Consumer Act arising from Toyota’s dealer network. We also acted in disputes with dealers.
  • Jaguar Land Rover Australia Pty Limited: we're conducting an ongoing review of, and drafting of amendments to, Dealership Agreements for existing and prospective Jaguar and Land Rover dealers to meet evolving commercial requirements and to ensure compliance with the Franchising Code of Conduct. We also draft and advise on Code-compliant disclosure documents to be issued to existing and prospective Jaguar and Land Rover dealers by Jaguar Land Rover Australia Pty Limited.
  • Ferrari S.p.A.: we're advising Ferrari S.p.A. on local distribution issues, including localising Dealership Agreements and the Franchising Code of Conduct requirements.

Financial services

  • AMP: we advised on the impact of the Franchising Code of Conduct on AMP's dealer (authorised representative) financial planner groups, and strategies and business structures to manage Code impact.
  • Commonwealth Bank of Australia: we're documenting planner arrangements, and advising on the applicability of the Franchise Code to certain distribution arrangements.
  • ANZ Wealth (OnePath): we're advising on planner arrangements, and the regulatory implications under the Competition & Consumer Act 2010 of certain distribution arrangements.
  • MLC: we're advising on planner arrangements, and the regulatory implications under the Competition & Consumer Act 2010 of certain distribution arrangements.
  • Austbrokers Holdings Limited and AIMS: we advised on the regulatory implications under the Competition & Consumer Act 2010 of certain joint venture and distribution arrangements with third party and intra-group insurance brokers.
  • Ironbridge Capital: we acted for Ironbridge Capital on its acquisition of the BBQ Galore corporate owned and franchise business. This work included drafting the Franchise Agreements and Disclosure Documents for the franchise stores throughout Australia.

Retail

  • Woolworths: we're acting for Woolworths in its roles as wholesale supplier to independent hardware stores and owner of three Franchise Code-regulated marketing groups of independent stores. This work includes ongoing advice to the Danks wholesale and franchise business on its compliance with the Franchising Code; and advising Woolworths on Franchise Code issues relating to the independently operated in-store Sushi Bars in its supermarkets.
  • Angus & Robertson: we advised Angus & Robertson on Franchising Code compliance, disputes with franchisees and new franchising business opportunities, which included preparing new pro forma franchise agreements (and corresponding Disclosure Documents) to be rolled out across its entire franchise network.
  • Apple Pty Ltd: we're advising Apple on a range of consumer protection, competition law, compliance, ACCC notification and general corporate advisory matters. This includes litigation and advisory work on Australian Consumer Law and competition law investigations and proceedings, device supply and telecommunications services arrangements, and reviewing advertising and promotional materials.

Food and beverage

  • eMax’s LLC: we're advising eMax’s LLC, an international corporation operating franchised restaurants under the trading names “Max’s of Manila” and “The House That Chicken Built”, on the requirements imposed on eMax’s LLC as a franchisor by the Franchising Code of Conduct in relation to the establishment of its franchise business in Australia.
  • Cerebos (Australia) Limited: we're advising on the negotiation and drafting of Distribution Agreements for Cerebos Limited in respect of food and beverage brands such as Toby's Estate Coffee.
  • Hagemeyer Brands Australia Pty Limited: we're advising on the drafting of Distribution Agreements for Hagemeyer Brands Australia Pty Limited.
  • Subway purchasing company: we're advising on the design and roll-out of the Subcard loyalty program in Australia and co-ordinating the roll-out of that program across a number of markets in the Asia-Pacific region.

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