TRADEMARKS It's simple really, (i) take all reasonable and necessary steps to protect your intellectual property, NOW. I once had a client that missed getting a valuable trademark by 15 minutes because great minds think alike but some are faster to act. (ii) Don't start a brand without checking the trademark and dot.com landscape first. (iii) Don't let others confuse their brand with yours(iv) once a mark is registered there remain maintenance and filing requirements. The first step in proceeding with a franchiseable concept is to get your trademarks or service marks registered with the United States Patent and Trademark office. I have many years and successful prosecutions in my quiver and am standing by to help.
CONTRACTS It is to be expected that your ongoing business is going to require a myriad of different contracts and if you forego the necessary diligence when entering into business relationships the true price may not be known until trouble arises. Be wary of anyone who tries to tell you that, "this is just a standard agreement" as such an animal is extremely rare. I can say generally that all the multimillionaire clients that I have represented over the course of my career carved out favorable deals at each turn and that in the long run such diligence was a strong factor in their success. I can help you in your attempt to gain ground in this arena or at least be apprised of the risks you are willing to assume.
FRANCHISING As you might imagine you could fill an entire bookcase with popular books about franchising so I am not going to try to explain it here. Suffice it to say that it is a huge industry with over 5,000 franchisors offering their wares. It is an extremely competitive market, which is under the direction of surprisingly few franchise attorneys. Franchise law is only taught in a few law schools so to be accomplished you must first be mentored. Most of us veterans know each other through prior dealings and this experience is invaluable in getting things done. One of the most rewarding things that I do is helping to create a new franchise system. As a long time columnist for Franchise Times and Entrepreneur magazine I had the great fortune to investigate and report upon a new concept every month for a decade. This permitted me to see hundreds of deals and learn what works and what fails. Generally speaking, I am willing to help create your franchise legal documents for a negotiated flat fee. Likewise, if you are a potential franchisee who wants a review and perhaps (in limited circumstances) an expert negotiation of your contract, I also have flat fee rates for that task. Franchise law is considered to be a practice that is national in scope, so wherever you are located, I can help you start that engine.
DISPUTE RESOLUTION You would be surprised at how many transactional attorneys have never stepped into a courtroom and tremble at the very idea. Naturally, the litigators love to feed on this, which may explain why so many cases settle. Or, it could be that litigation is generally painful for everyone involved except those who truly are out for revenge no matter the financial or personal cost. In any case, resolving disputes tends to be high opera. It is distracting and it's expensive but sometimes there is little alternative. In my early days as a lawyer I performed as a criminal prosecutor with as many as four jury trials scheduled per day. I am not going to litigate your case but I can oversee mediation and settlement negotiations while supervising your litigators. I know what motions are necessary, what is a waste of time, how things tend to play in front of a jury or judge and the key emotional points in the contest where progress can be made. I can also introduce you to litigators I have worked with in the past with a proven track record.
REAL ESTATE Notwithstanding the potential strength of any retail concept your retail location will be the single most critical factor in determining success or failure. All the best marketing or tasty sandwiches will do little to help if your customers can't see you or cannot make a left turn into your store because of traffic. I don't perform site selection research but I know people who do. Secondly, if you are going to be a tenant, the version of the lease that the landlord hands you is definitely not the one you want to sign. I have conducted literally hundreds of retail leases and there is much progress that can be made in this area. Typically, this is also something I will accomplish for a flat fee. I have also handled purchases and sales of commercial property, zoning variances, sign ordnances, etc.
ENTITY FORMATION AND GOVERNANCE I am constantly amazed at the small business people who go online or use their accountant to form an entity and then put it on the shelf without any follow through. The law considers such things as LLC's, corporations and limited partnerships to be a "person" with an individual existence. As such this "person" must be constantly fed and nurtured so that it continues to provide the protections for which it is was designed. Additionally, the forms that I have seen online do not adequately deal with such issues as; What happens to the ownership in the event of divorce or death? or How do we value the company if someone wants to leave? Do you want the angry x-spouse sitting on your Board? The moral of this story is that your entity should be designed and operated to serve your needs as well as those of the law. If you need or have a Texas entity or wish to create a partnership or joint venture, I am happy to assist.
None of the foregoing should be considered legal advice. Moreover, these are my personal opinions and you should consult with legal counsel before acting on any of these comments.
ALTERNATIVE FORMS OF DISTRIBUTION Franchising is not for everyone or every situation. Certainly a franchise is a recognizable commodity and the law desires to presume a franchise relationship exists in order to extend protections to the potential buyer, However, this area of the law is highly regulated as are any attempts to circumvent the law, although legitimate alternatives exist if they are well crafted. For example, merely calling something a license instead of a franchise is a recipe for disaster. I have the experience, through my practice, to counsel you in this area.