Latest updates

IP Enterprise Court considers interplay of EU Trade Secrets Directive and breach of confidence for first time
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 02 June 2020

The IP Enterprise Court recently considered the impact of the EU Trade Secrets Directive on the law of breach of confidence – in particular, in the context of ex-employees who sought to franchise their services. The case confirms the limited impact of the directive on the pre-existing law on breach of confidence. However, it also indicates that the directive can be useful in helping to tease out the distinctions between confidential and non-confidential information.

Proposed changes to insolvency regime and what they mean for franchisors and suppliers
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 05 May 2020

In response to the COVID-19 crisis, the government has stated that new tools will be added to the UK insolvency framework, including a moratorium for companies to give them "breathing space from creditors enforcing their debts while they seek a rescue or restructure". The government is also expected to introduce a moratorium provision, introduce an exclusion of ipso facto clauses and suspend temporarily wrongful trading provisions. This article considers what the changes would mean for franchisors.

FCO guidance on cooperation between competitors during COVID-19 crisis
Fieldfisher (Germany) LLP
  • Competition & Antitrust
  • Germany
  • 30 April 2020

The antitrust authorities have signalled their approval for cooperation between competitors during the ongoing COVID-19 crisis. President of the Federal Cartel Office Andreas Mundt and EU Commissioner Margrethe Vestager emphasise that the authorities are open to direct communication. According to Mundt, even after the crisis, cooperation might be necessary to overcome economic difficulties.

Retention of title – how can franchisors and suppliers best protect claims against insolvent companies?
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 28 April 2020

In the wake of the economic turmoil caused by the COVID-19 crisis, a number of high-profile brands in the leisure and hospitality sectors have entered or will soon enter into formal insolvency processes. Although failure rates among franchises are typically lower than among non-franchised businesses, franchising will not be immune to this trend. It is therefore important that franchisors and suppliers ensure that they have the contractual rights to act quickly and effectively if the need arises.

Recent changes to IP licensing provisions – what franchisors need to know
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 21 April 2020

In 2019 the new EU Trademarks Directive was implemented in the United Kingdom. As part of this implementation, numerous changes were made to the licensing provisions of the Trademarks Act. This article sets out the changes which are most significant for franchisors, including limited direct enforcement rights for non-exclusive licensees and enhanced direct enforcement rights for exclusive licensees.

Cartel damage claims: Federal Court of Justice corrects understanding of 'affected' goods
Fieldfisher (Germany) LLP
  • Competition & Antitrust
  • Germany
  • 09 April 2020

A recent Federal Court of Justice decision clarifies open questions relating to cartel damages and simplifies the presentation of claims by plaintiffs, as it will no longer be necessary to present and prove that a cartel agreement had an actual impact on an acquisition transaction under the requirements of Section 286 of the Code of Civil Procedure. It is to be expected that the number of cartel damage actions pending before the German courts will continue to increase.

COVID-19: how franchise and distribution networks can respond
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 31 March 2020

There is no one-size-fits-all plan for how businesses should respond to the COVID-19 crisis. However, this article provides some guidance for businesses which are primarily consumer focused and use franchise and distribution networks to sell their products and services in order to help them to respond to the challenges ahead and hopefully even emerge on a stronger footing than before.

Guide to international expansion in the education sector
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 17 March 2020

A British education is internationally regarded as the gold standard, as reflected in the dominance of British international schools. Done correctly, the execution of a school's international franchising strategy can become a core asset. However, the most appropriate structure must be determined at the outset, as restructuring an international licence is a complex, costly and time-consuming exercise.

FCO guidance on B2B platforms: launch of digital agricultural platform approved
Fieldfisher (Germany) LLP
  • Competition & Antitrust
  • Germany
  • 27 February 2020

The Federal Cartel Office (FCO) has raised no objections to the launch of 'Unamera', a digital trading platform for agricultural products. During the review, the FCO provided guidance on the competition law implications of digital platforms, specifically with regard to the obligations where shareholders are active in the same market as the platform's users, the market statistics published on these platforms and the risk of price fixing.

Franchising, Brexit and trademarks – what now?
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 18 February 2020

The UK Intellectual Property Office (UKIPO) recently published a short, reassuring update about what happens to IP rights during the transition period following the United Kingdom's departure from the European Union. The UKIPO has assured that it will be business as usual, but there are some key points of which franchisors should take note.

Data protection post-Brexit: a game of 3D chess
Fieldfisher LLP
  • Tech, Data, Telecoms & Media
  • United Kingdom
  • 14 February 2020

The year 2019 was one of high-octane political drama for the United Kingdom, culminating in its withdrawal from the European Union. While there was no cliff edge on 31 January 2020, there are significant challenges ahead, including in the cross-cutting area of data protection, which could affect many UK businesses.

Cartel damage claims for indirect damage: questioning German law on cartel damages after ECJ decision
Fieldfisher (Germany) LLP
  • Competition & Antitrust
  • Germany
  • 16 January 2020

Under German law, a plaintiff does not only have to prove the unlawful behaviour of a liable party (ie, in the case of cartel damages, a competition law infringement such as a cartel) and any damage caused by this behaviour; the Act Against Restraints of Competition also requires a plaintiff to be "affected" by unlawful behaviour. However, the broad wording of the act could still be too restrictive in light of a recent European Court of Justice decision and will therefore have to be amended or reinterpreted.

Steel manufacturers fined record €646 million for agreeing surcharges and exchanging information
Fieldfisher (Germany) LLP
  • Competition & Antitrust
  • Germany
  • 19 December 2019

The Federal Cartel Office has fined three companies and three persons a total of approximately €646 million. The companies agreed and exchanged certain supplements and surcharges for so-called 'quarto plates' in Germany for approximately 14 years. Companies and associations should review their practices with regard to price components (particularly surcharges) as this is not the first decision on this matter.

It's a wrap – what lessons can franchisors learn from Wrapchic's demise?
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 17 December 2019

Wrapchic, which fell into administration in 2019 after shareholders refused to lend further funds as it continued to make losses, is one of a number of recent casualties in the UK food and beverage sector. However, unlike some of the more high-profile casual dining brands that have suffered a similar fate, Wrapchic was almost entirely franchised and operated in the generally more resilient quick service restaurant segment of the sector. So why did it fail and what lessons can franchisors learn?

Good faith and relational contracts: impact of recent decisions on franchisors
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 19 November 2019

English law has traditionally resisted implying the obligation of good faith into commercial contracts, except in limited circumstances. However, in a growing line of authorities (of which two recent cases are particularly significant), the English courts have confirmed that a duty of good faith will be implied into certain types of agreement as a matter of law. This article considers the ramifications of these decisions for parties to this special category of commercial agreement, which includes franchise agreements.

Good faith and relational contracts
  • Corporate & Commercial
  • United Kingdom
  • 18 November 2019

In two recent cases, the English courts considered whether the duty of good faith should be implied into commercial contracts. These cases demonstrate that the issue of good faith is evolving in English law. Parties to relational contracts must therefore monitor developments to ensure that foreseeable risks are mitigated effectively in their contracts and commercial practices.

Keeping your trade secrets safe – EU perspective for franchisors
  • Franchising
  • European Union
  • 15 October 2019

The EU Trade Secrets Directive seeks to harmonise the protection of trade secrets in all EU member states. In general, the implementation of the directive is positive for franchisors, as the protection of trade secrets and confidential information is key to the success of a franchise system. Although franchisors may be able to rely on the statutory definition of 'trade secret' set out under the directive, they should nonetheless continue to ensure that their confidential information is safeguarded contractually.

Economic duress and franchising: when does a threat not to enter into a contract amount to economic duress?
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 27 August 2019

In a recent case, the Court of Appeal considered whether a threat not to enter a contract could amount to economic duress, holding that it would not unless the threat was made in bad faith. While the decision provides useful and comforting guidance for franchisors, it also serves as a reminder to review contractual terms and processes and ensure that they are both robust and fair, as there is a fine line between protecting the integrity of the network and abusing a position of power.

Managing supply chain risk in franchise systems – proposed changes to insolvency regime
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 11 June 2019

Against the backdrop of a number of high-profile business failures in the UK retail sector, the government has issued a report on the insolvency regime, which will affect the operation of termination rights in supply agreements. This article considers the proposals and provides a best practice recommendation for recovering goods in the possession of a franchisee once they have entered some form of insolvency protection.

Be careful of 'non-reliance' clauses in franchise agreements
Fieldfisher LLP
  • Franchising
  • United Kingdom
  • 02 April 2019

In a recent Court of Appeal case, a landlord was unsuccessful in its appeal against a first-instance decision that a 'non-reliance' clause in a lease had attempted to exclude liability for misrepresentation. The decision, which will have ramifications for franchise agreements, demonstrates that such clauses must be fair and reasonable and have regard to the circumstances which were or ought reasonably to have been known to or contemplated by the parties when the contract was made.