CHINA FRANCHISE UPDATE
Written by:
Ed Teixeira
Article Overview: China is the worlds most populace country and emerging as one of the largest consumer markets in the world, soon to led by only the United States. China's increasing middle class has a desire and appetite for western brands and products. A strong component of this dynamic are the products and services provided by U.S. franchisors. The challenge is to match the appeal of foreign franchise brands with the demand of the Chinese consumer. Recent actions by the Chinese Government have raised the price of admission for foreign franchisors.
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CHINA FRANCHISE UPDATE
CHINA FRANCHISE UPDATE
By Ed Teixeira
China offers foreign franchisors unbounded opportunities. However, to overcome the many challenges requires a commitment to the market.
CURRENT FRANCHISING CLIMATE
Recently enacted franchise regulations by the Chinese Ministry of Commerce (MOFCOM), which include a requirement, that foreign franchisors to open pilot locations in China have made it more difficult for foreign franchisors to franchise in China. The regulations enacted in February of 2005 include the requirements, that a foreign franchisor must have operated two pilot locations for a minimum of one year before offering franchises in China. Moreover, the foreign franchisor must be registered with the Chinese government.
This change now requires the foreign franchisor to invest in opening and operating pilot locations in China. Of course the alternative would be a hybrid agreement whereby a licensee in China would bear all or a portion of the initial development costs. If the franchise brand is not well known, versus brands such as KFC, Subway, etc. it will be difficult to find a licensee willing to pay an upfront fee. This is because the brand is unproven in China and any fee would be in addition to development costs.
Establishing and operating pilot locations in China requires an investment level typically possessed by larger franchisors. Although the franchising regulations for foreign owned firms could be relaxed in the years ahead there is no definitive evidence of that happening.
In addition to the regulatory restrictions foreign franchisors face its important that preliminary marketing and brand promotions precede the major introduction of foreign franchise concepts in China.
THE CHINA MARKET
As the world’s largest country and fastest growing economy China provides an enormous opportunity for foreign franchisors. The key factor is to be prepared and have the resources to survive in this rapidly growing and highly competitive market.
The concepts and products with the most interest in China include fast food and restaurants, auto-after market, fashion and clothing and children’s products and services. American brands in particular are very popular.
There are four major regions in China. The south which includes Guandong Province, the Pearl River Delta which includes Shanghai, the north which includes Beijing and the western part of China which is still developing.
KFC with over 1,200 locations in China versus 5,400 free standing locations in the U.S. has reported earnings of $200 million which accounts for 50% of the total earnings from all of its international operations. The China strategy, which KFC, McDonalds and other franchisors employed, was to open and operate corporate locations before franchising.
Clearly, China offers unlimited possibilities. The key is having the right product/services and the capability and resources to commit to long-term growth.
For those franchisors that wish to enter China the following are some key steps to follow:
1. Have the experience of operating in another country
Don’t target China as the very first country to enter. You need to have the experience and staff in order to operate in a country like China.
2. Have the financial resources to operate in China
You should conduct a market survey in order to verify that your franchise concept will be accepted and perform in China. This requires some expense. If you think that you’ll sell your franchise rights in China and receive a nice fee for little investment on your part you’re mistaken.
3. Be sure that your marks are registered in China
Intellectual property rights are still a major issue facing foreign firms that enter China. Be sure that your marks and if required your patents are registered in China. You need to pay particular attention to these important matters.
4. Be flexible in terms of your entry strategy
The use of a joint venture may allow a franchisor to enter China with a business relationship that shares the initial development costs. Conversely, to open and operate corporate locations prior to franchising requires a considerable amount of capital.
5. Be willing to adapt
Franchisors who are considering going into China must accept the reality of changing their concept to suit the tastes and vagaries of the country. China is a huge country with significant diversity. Tastes and consumer expectations in one region will differ from another. It’s critical that the franchisor visit China before making a decision. The cost of a trip will be well worth the potential risk from making the wrong decision
6. Temper your expectations
Be prepared for the long haul. Don’t expect to earn large profits in the first few years. Success in China requires commitment and patience. Although the opportunities are great it will take time to implement and establish a successful operation. If there are problems with the China licensee it can add to the delay.
China is a country, which presents foreign franchisors the opportunity to implement a franchise program in the worlds most populace country. However, success in China requires resources, preparation, perseverance and patience. Franchisor’s, which can apply these traits to an existing and successful franchise program, can enjoy great success.
Copyright 2006, FranchiseKnowHow, LLC
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Information about doing franchise business in China
- CHINA’S FRANCHISE LEGAL SYSTEM
Introduction
Franchises has a history of more than one hundred years in foreign countries, now it has developed to be a mature business mode, and it is widely used in many countries, especially the developed ones. Recently, franchises has been developing fast in China, covering more than sixty industries and trades such as catering, retailing, clothes-washing, indoor decorations and gym. However, the market order of franchises is chaotic in some industries and areas. There are also some illegal and criminal activities under the guise of franchises. Under such circumstances, several important laws have been promulgated to regulate the commercial franchising activities.
Applicable Legislation
The main legislative provisions governing the commercial franchising in the PRC are:
the Measures on Administration of Commercial Franchises; and
the Measures on Administration of Archival Filing of Commercial Franchises; and
the Measures on Administration of Information Disclosure of Commercial Franchises
Qualification for Franchisors
According to the laws, the franchisors as those enterprises who own such business sources as registered trademarks, enterprise logos, patents and proprietary technology, and license these business sources to franchisees.
Firstly, the franchisors shall be enterprises, excluding other economic organizations and individuals.
Secondly, the trademarks which can be licensed to franchisees shall be registered trademarks. According to the Trademark Law, the trademarks, whether registered or not, are protected under the laws, though there is difference in the vigor and extents of protection. It seems that the Ministry of Commerce has restrictions in recognizing trademarks, since it only provides “own trademarks to be licensed to others” at large, which causes chaos in practice. In the cases relevant to franchising disputes which we provided legal service to, all of them involve the situation that the franchisors granted licenses of non-registered trademarks or the trademarks which were in application to others, and when there was infringement on trademarks, the franchisors were unable to prevent infringement on trademarks. Then the interests of the franchisees could not be realized. What’s more, franchising activities with non-registered trademarks also, to some extent, encourage commercial frauds.
Thirdly, the logos, patents and proprietary technology of enterprises are included in the business sources to be licensed to others for the first time, which enlarges the application scope of franchises and will improve the development of franchises.
Requirements to be Met in Carrying on Franchising Activities
In addition to the condition that only the enterprises will be allowed to carry on franchising activities referred to above, the franchisors shall also have mature business modes, and are able to provide business guidance, technology support and training. The enterprises which copy the manuals, websites and enlisting documents of others, and have no service abilities for providing business guidance, technology support and training shall be excluded. What needs pointing out is that even these enterprises that are allowed to carry on business may face with the suits claiming them for unfair competition and infringements on intellectual properties. In addition, the Measures clearly request that the franchisors shall operate at least two directly operated shops, and the period of operation shall be more than 1 year, which aims to prevent frauds by the way of franchising.
Information Disclosure Requirements and Regulation on Franchisors
Information disclosure system is the core system of franchising. The laws provides that the franchisors shall establish and implement a perfect information disclosure system, and provide the relevant information and franchising contracts in written form, at least thirty days before execution of franchising contracts. It also sets out the specific provisions on the information which shall be provided by franchisors, including the basic conditions and commercial reputation records of the franchisors and their legal representatives, business sources owned by franchisors, abilities of franchisors to provide service to franchisees and management and supervision on business of franchisees, franchisee fees and the payments, and budgets for investment in franchising shops. To the franchisors that violate these provisions, the authorities in charge of commerce will order them to rectify, charge penalties and make public statements.
Archival Filing and Public Announcement Systems
To protect the franchisees’ lawful rights and interests, considering the asymmetric information between franchisors and franchisees, in addition to intensifying information disclosure requirements and regulating the activities of franchisors, the Measures also bring in the archival filing and public announcement systems. The Measures provides that the franchisors shall make a filing with the commerce administrative department within 15 days after the execution of franchising contracts for the first time. Anyone who intends to engage in any commercial franchise activities within a province, autonomous region, or municipality directly under the Central Government shall go through the archival filing formalities in the commerce administrative department of the people’s government of the province, autonomous region, or municipality directly under the Central Government where the franchisors are located. Anyone who intends to engage in any commercial franchise activities beyond a province, autonomous region, or municipality directly under the Central Government shall go through archival filing formalities in the commerce administrative department of the State Council. Any franchisor having been engaging in franchise activities before May 1, 2007 shall apply for archival filing at the commercial administrative department.
The Ministry of Commerce has established the national network for archival filing work relating to commercial franchise. Any franchisor shall go through the archival formalities through the government website. The general public may obtain the following information through the government website of the Ministry of Commerce: (1)The registered trademark(s), enterprise mark(s), patent(s), know-how and other business resources of the franchisor; (2)The franchisor’s archival filing date; (3)The location of the legal business place, contact information and name of the legal representative of the franchisor; and (4)The location of the business place of the franchisee(s) within China.
The authorities in charge of filing will cancel the archival filing if there is any following activities of franchisors, and make public announcement on the government website: (1) the business licenses of the franchisors have been withdrawn by the registration administrative authorities for illegal business; (2) the authorities in charge of filing receive judicial suggestion letter on cancellation of archival filing from the judiciary for illegal business by franchisors; (3) the franchisors conceal the relevant information or provide false information, which has been proved; (4) the franchisors carry on cancellation by themselves. In addition, the illegal activities of the franchisors will be announced to the public.
By Erex Chen, a Chinese lawyer based in Shanghai.
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