11 Forgotten Laws – Review

I remember the first time I watched the movie “The Secret” a friend of mine gave it to me when I joined a network marketing company as part of our training. I have to admit it sat on top of the TV stand for about 6 months before I got around to watching it. Then one day I decided I was gonna check it out and popped it in the VCR. I remember thinking WOW, I can make my dreams come true – FINALLY!

But as months went by and I still wasn’t living the life I had dreamed and I wasn’t building the successful network marketing business I had hope to, I began to have my doubts about this Law of Attraction stuff.

I watched the movie over and over again and each time I got excited about the prospect of creating the life I desired, but still I wasn’t getting the results I wanted.

I was however able to manifest a new car for myself and my husband. That gave me new-found hope! If I could manifest a car, what else could I manifest… a life of abundance and happiness! Oh yes, I was excited again that I was going to use the Law of Attraction to have the life I desired! Or so I thought!

Months went by again, and still I wasn’t able to grow my business and generate the income I wanted. I was able to attract small things however, like thinking of a friend only to have the phone ring moments later, or think of a song and then hear it on the radio a few hours later but I still wasn’t manifesting riches like I had hoped.

I was frustrated that sometimes I could get it to work, but other times I couldn’t. What was the trick or “SECRET” lol to this manifesting thing?

Then I came across a product by Bob Proctor called the 11 Forgotten Laws I learned that the movie “The Secret” like many Hollywood movies left out a lot of stuff so they could just give the “basics” and a quick idea of what the Law of Attraction was. Bob explains that there are actually 11 Forgotten Laws and until you can master all of them the Law of Attraction won’t work to its full

So here is my review of the 11 Forgotten Laws…
The 11 Forgotten Laws is an online digital 12 cd home study course that you can download and access anytime, anywhere whenever you want. I love that because you can listen to it virtually anytime at your convenience on your ipod, mp3 or computer. There are 95 tracks of audio training at your fingertips as well as a downloadable workbook that you can take notes and track your progress step by step. I tend to learn and absorb more when I listen and read as well, so if you are like me then you will like the fact that it comes with printable transcripts as well.

You also get access to the Members Only forum and support desk if you have any questions or concerns. Having a support network and like-minded people to help you on your journey is essential.

The course is educational, inspirational and very motivating. I personally love Bob Proctor and could listen to him speak all day and night. There is something about his passion and belief in the Law of Attraction that keeps me engaged. I have listened to other programs and find my mind wanders, I have to hit rewind several times to stay engaged. However; Bob Proctor leaves me excited and wanting more, my mind absorbs his every word easily and quickly. Bob and Mary Morissey explain all 11 Laws that were never mentioned in the movie “The Secret” and are the missing links to true manifestation.

WHO IS THE PRODUCT FOR:

This product is for the person who believes in the Law of Attraction but who has had difficulty in mastering it and achieving success with it. It is for the person who is stuck in their life and can’t seem to move forward and is unsatisfied with their life. The person who is looking for happiness, health, and abundance but just can’t seem to master all 3 at the same time or sustain all 3. This product will shift you to a higher resonating place where results will happen, dreams will be realized and true results and success will come your way.

WHO IS THIS PRODUCT NOT FOR:

This product is not for the skeptical closed-minded individual who does not believe in the Law of Attraction. It is not for the individual who believes they can just sit back and manifest anything because they believe they can. This product is designed to hold you accountable and apply all the 11 Laws to your daily life. You must take action in order to see results. There is no magic button and you will not see instant results overnight, having said that… Once I applied the Law of Forgiveness I started to receive money in my bank account… I am by no means rich because of this but I was able to manifest money from nowhere! The 11 Forgotten Laws will give you the tools you need, it is up to you to apply them.

IS THE PRODUCT WORTH 97 DOLLARS:

97 dollars may seem expensive but like I said it is a comprehensive course and unlike any other it gives great detail of each law and how to apply them… other products I have purchased that were cheaper did not give as much detail or contained information I already knew… The 11 Forgotten Laws is like no other product out there and once you apply The 11 Forgotten Laws in your life the money will come back to you two-fold. Opportunities will appear and you will attract who and what you need for success. Bob Proctor is a true follower and believer of the Law of Attraction and the 11 subsequent laws. He has had true success and many of his students have had true success as well. Don’t take my word for it, see for yourself and check out The 11 Forgotten Laws now with this 5 dollar trial offer.

PROS AND CONS: Although I could not find any faults with the product, some complaints I found from others were that it can be a bit overwhelming since it is very comprehensive and gives a lot of detail. Some wished that it had a step by step guide or summary after each lesson as to what actionable steps to take..one way to overcome this is to listen and read everything over 2 to 3 times until it becomes clear, or reach out to the members forum and support desk. We all have setbacks in life and rather than give up and decide it doesn’t work… reach out to someone who may have gone through something similar and will have the answer. Another complaint was that some wished it came as a physical product rather than digital… I personally like digital because I don’t have to wait for it to arrive I have instant access, however; it is a rather large download and some may have slower computers or not the right amount of space.

RETURN POLICY:

It comes with a 60 day full money back guarantee. Not happy with the product or results you are achieving, simply return it and get your money back. The product is sold and purchased through Clickbank an online secure market place where many digital products are sold and is a very reputable site, so if you are worried or skeptical about purchasing online, know that your privacy is protected. I myself have requested returns in the past through Clickbank and have never had a problem. Within days my money was returned!

So in my honest opinion Bob Proctors 11 Forgotten Laws is a product you want to check out for yourself. You won’t regret it as many others have had great success with this program and so will you!

How To Make Advertising Claims That Comply With FTC Laws!

Any business (and affiliates and marketers) that engages in interstate commerce will be subject to federal laws. Interstate marketing and advertising practices are regulated by the Federal Trade Commission (“FTC”) under the FTC Act. Services and goods offered through the Internet are considered to be a “use in commerce” since the services are available to a national or global audience. The FTC regulates Internet advertising, marketing activities and sales to consumers as the watchdog agency. The same consumer protection laws that apply to commercial activities in other media apply to the Internet. Under Section 5 of the FTC Act, illegal advertising practices are categorized as either an unfair method of competition or an unfair or deceptive act or practice.

Any activity that is likely to cause consumer confusion as to source, sponsorship or affiliation of any good or service is essentially an “unfair” act or practice under the FTC Act. However, the real culprit for interstate businesses, affiliates and other Internet marketers is avoiding advertising claims which are unfair or deceptive. There is no hard definition of what practices are considered “unfair” or “deceptive,” under the FTC Act.

But, in the simplest terms, all advertisements:

  1. must be truthful and not misleading;
  2. must have evidence to back up any claims made in the ad; and
  3. cannot be unfair.

Complying with FTC laws really boils down to a single standard that your advertisements or marketing practices will be judged under. This “standard” is known as ‘materially misleading.’ This is basically the crux of website advertising law and the standard by which all Internet claims and representations are measured to determine whether they are deceptive. Either an ad or claim is materially misleading, or it isn’t deceptive. This standard is defined by a series of guidelines, rules and policy statements published by the FTC. The FTC rules and guidelines illustrate what the FTC believes is illegal under the technical language of the FTC Act.

The principle guidelines on advertising are contained in the FTC’s Policy Statement on Deception. Under the FTC’s Statement, an advertisement or marketing practice is deceptive if there is a representation, omission of information or some other practice that is likely to mislead a reasonable consumer and which is likely to influence or otherwise “affect the consumer’s conduct or decision with regard to a product or service,” to that customer’s detriment.

In terms of Internet advertising, an unfair or deceptive act or trade practice is usually made by publishing a false advertisement. The Act specifically states that using a false advertisement in commerce is unlawful and doing so is also categorized as an unfair or deceptive act or practices. The term false advertisement means an advertisement, other than labeling, which is misleading in a material respect. As you can imagine, flat out lies about your products or services, or those that you promote or endorse, are going to be misleading and illegal. Simply stated, you cannot make any false claims. However, a claim can be misleading in many other ways and this is where most Internet businesses land into trouble.

If you don’t understand the nature of what is considered materially misleading, you could very easily violate FTC laws. You MUST understand all the ways a claim may mislead a consumer and you MUST know what is considered a claim or representation in the first place. This is really the key to understanding FTC laws. For instance, a claim can be literally true, but if it is only true in limited circumstances, or if it is subject to more than one interpretation, one of which is not true, or misleading in its overall effect, it is deceptive. I am going to take you through each element of an advertisement from the FTC’s point of view so you can master this understanding. Again, either you can pay an attorney to look at your specific ads, throw them up blind, or take the time to learn the fundamentals yourself.

A. Overall Context Matters

A claim can be suggested by the overall context of an advertisement. This means a representation or claim can be made or suggested by any “statement, word, design, device, sound, or any combination thereof”. In other words, the FTC won’t just look at the words of an advertisement by itself to determine if it is misleading. Other than the words of the ad, the name of the product, the nature of the product, any visual or audio depictions or symbolism can all provide the context to establish a claim. Even the website name or metatags can provide the context for a claim. The overall experience conveyed by viewing the ad in relation to the rest of the website sets the context for a particular claim.

The U.S. District Court, Third Circuit stated the FTC standard regarding context of an ad clearly. “The tendency of the advertising to deceive must be judged by viewing it as a whole, without emphasizing isolated words or phrases apart from their context.” Beneficial Corp. v. FTC (1976). Using illustrative pictures on your website to demonstrate the effectiveness or results of a product is a common example. Without stating some direct, express claim in words, these pictures would be just as effective in suggesting some claim to your visitors.

EXAMPLE: You operate a website called homesavers.com which offers loan modification and “foreclosure rescue” services. The title of your webpage is labeled as “save home” and your home page contains a picture of a “happy and relieved” couple sitting at a kitchen table looking at their laptop which shows homesavers.com on the screen. The website advertisements include a heading titled “Begin the process of saving your home now” and other claims of “if you act now, we can save your home.” Without any qualifying disclosures, the overall context of the website may imply that consumers can expect to save their homes by using homesavers.com.

B. Express and Implied Claims

If an ad makes either express or implied claims that are likely to be misleading without certain qualifying information, this information must be disclosed. You must determine which claims might need qualification and what information should be provided in a disclosure. The important thing to understand is the fact you can make an implied claim through your advertisement and that you cannot suggest any claim which you are not permitted to make expressly by law. An express claim is an obvious one. For example “This product will stop bullets from penetrating your body in an advertisement for a bullet proof vest. Similarly, the claim “removes every type of stain from your carpet” is an express claim that the advertised product will remove all stains from your carpet.

An implied claim is one made indirectly or by inference and causes the most problems for Internet advertisers.

EXAMPLE: In an ad about the innovative bullet proof vest, it claims the vest is “used by law enforcement officers and professional body guards.” Since the ad claims law officers and security professionals use the vest, it implies they use it to stop bullets. It may also imply reliability to the average consumer.

EXAMPLE: “2 out of 3 mechanics prefer mighty wrench to any other wrench on the market! Besides having to substantiate that 2 out of 3 mechanics prefer mighty wrench, this claim implies that the tool is adept at working on cars. This is an implied claim even though the ad does not expressly state that “mighty wrench” is suitable for cars.

EXAMPLE: In an advertisement for sprinting shoes, your website claims “Joe Sprinter wore these shoes during his Olympic 100 meter Gold medal run.” This implies that the shoes are made for, even particularly well-suited for, sprinting and running fast. This ad implies a particular quality about the shoe.

EXAMPLE: Your website sells household carpet cleaning products. You use an ad promoting your “wonder-clean” carpet cleaner, stating that it “removes the toughest household stains.” Directly below the ad, there are a series of illustrations depicting a dog standing on a carpet next to an obvious wet spot on the carpet and the product then being applied by a woman. Then, that same woman is depicted with a smile on her face and the wet spot has disappeared. The ad suggests that it removes dog stains from your carpet (maybe even common pet stains in general).

EXAMPLE: An ad claiming “experts agree our product beats our competitors hands down” probably implies that there is actual proof that most if not all experts have made such a proclamation.

C. Leaving Out Important Information

A claim can be misleading if relevant and material information is left out. An advertisement cannot leave out facts which are material in light of any claims made or material in light of how the customer will use the product under the conditions stated in the advertisement (or under ordinary conditions). If a claim is only true in limited circumstances or a benefit only applies sometimes, this must be disclosed.

EXAMPLE: In ad for revolutionary new speakers your sell from your discount stereo web store, your website boasts that the speakers “can achieve a 98% efficiency rating.” But, this rating cannot be done with every type of stereo receiver. In fact, a few different models of speakers can achieve the same rating, but only if they are used in conjunction with certain receivers. These are considered “high-end” receivers and are not common. Since the stereo receiver required is uncommon, this should be disclosed.

D. Material Claims

In order for a claim to be materially misleading, the claim or any information left out must be important or significant to the consumer’s choice to purchase the product or service. If the average consumer would not find the claim to have any significant influence on his or her decision to purchase, the claim is not material. The FTC has stated that examples of material claims include representations about health or safety, a product’s performance, features, price, effectiveness or other central characteristics. But, these are not the only types of claims which are material. Information is also likely to be material if it concerns durability, performance, warranties or quality. Information pertaining to a finding by another agency regarding the product may also be material.

The FTC presumes that express claims are material. As the Supreme Court stated recently, “in the absence of factors that would distort the decision to advertise, we may assume that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising.” Where the seller knew, or should have known, that an ordinary consumer would need any omitted information to evaluate the product or service, or that the claim was false, materiality will be presumed because the advertiser intended the information or omission to have an effect. Similarly, when evidence exists that a seller intended to make an implied claim, the FTC will infer the claim is material. The FTC might also look at other evidence that the claim or omission is likely to be considered important by consumers, such as testimony or customer surveys.

If a claim is material, it also means that injury is likely to exist because of the representation, omission, or practice. Injury to consumers can take many forms according to the FTC and it exists if consumers would have chosen differently but for the deception. If different choices are likely, the claim is material, and injury is likely as well. The statement on deception states that injury and materiality are different names for the same concept.

E. Substantiating Your Claims

Advertisers must have sufficient evidence to support any claims made, or the claims are deceptive. In order to avoid deception, you must have a “reasonable basis” for any factual or objective claims you make in any advertisement. (FTC vs. Pfizer, Inc. (1972)). This is also referred to as the doctrine of “substantiation.” This reasonable basis must be based on objective, credible and reliable evidence. You can use surveys, statistical evidence (studies) and expert opinions to substantiate any claim you make and otherwise prove a claim is true.

If the advertising claim suggests a level of support, it is obvious that the advertiser must have evidence of that support. For example, if a marketer claims that “three out of four customers prefer our brand”, then the marketer must have reliable survey evidence backing this statement up. If an advertiser claims “clinical studies show,” the FTC requires that clinical studies must show what you claim.Where a claim is not specific, the FTC will look at a number of factors in reviewing substantiating evidence to determine whether there is a reasonable basis for the claim including: 1) The type of claim; 2) The product involved; 3) The consequences of a false claim and the benefits of a truthful claim; 4) The cost of developing substantiation and 5) The level of substantiation experts would believe is reasonable.

EXAMPLE: A website that sells energy drinks and related energy products makes clams that its products give its customers energy lasting “all day” or “gets you through your work day.” Those claims need to be true and need to be backed up by an actual clinical study showing that the drink or other products boost energy levels for the duration specified.

The FTC will look at a number of factors to help determine the appropriate amount and type of substantiation necessary, including:

  • The Type of Product. Health and safety claims are subject to the most scrutiny by the FTC as they pose the most risks to consumers. Also, alcohol and tobacco are particularly put under the microscope along with dietary and herbal supplements, weight loss products and nutrient claims since these are related to health. These types of claims require competent, credible and reliable scientific evidence. I discuss scientific evidence in much more detail under the discussion of substantiating health claims.
  • The Type of Claim. Technical claims and claims that consumers would have trouble or cannot possibly evaluate themselves are subject to much more scrutiny. For instance, “reduces your energy costs by 30%” “kills germs on contact” or “environment friendly” are claims consumers cannot easily substantiate on their own. As a matter of policy, when consumers can easily evaluate the product or service this has historically attracted less FTC attention than those claims that consumers would have difficulty evaluating directly, such as “e-cigarettes contain none of the harmful ingredients of tobacco cigarettes.” Also, if a product is inexpensive and it is frequently purchased, the FTC will examine the practice closely before issuing a complaint based on deception. According to the FTC’s view, there is little incentive for sellers to misrepresent in these circumstances since they normally would seek to encourage repeat purchases.

General Results Claims

Stating that your products will deliver certain results may also be misleading. You must be able to substantiate any results you claim. If you make any specific claims of product results, you must also disclose that the product will not deliver the same results to everyone and may not even be effective for some purchasers, unless this is absolutely the case. Of course, if you can substantiate that the product would achieve the results claimed in each circumstance of use for all purchasers, you don’t have to worry.

For instance, a website that instructs businesses on how to establish and build a good business credit rating and makes the following claims on its website: “Instantly obtain multiple credit lines” and “establish a top credit rating fast.” How about a website offering SEO services that claims “our customers usually see double the traffic within 2 months.” These are results based claims. If the average client is not likely to achieve these results, you should disclose these facts. Otherwise, these ads may be misleading and thus deceptive.

If your business is offering a new product, then you can’t make a general results claim if no data on the results exists. As burdensome has this seems, the FTC’s comments on the matter of substantiating claims are pretty clear. I get a ton of questions on this issue. Section 5 of the FTC Act requires advertisers to have substantiation for the messages that consumers reasonably take from their ads, which means they must first know what messages consumers take away from those ads.

F. Reasonable Consumer Standard

The FTC will always evaluate any advertisement from the point of view of the “reasonable consumer.” This basically means looking at how the average reasonable person would interpret or respond to any claims or representations you make. Your business will not be liable for every interpretation or response by a consumer. This is actually a fairly well-stated principle in the context of advertising. Advertisers are not liable for every possible misrepresentation, no matter how outlandish. Misconceptions occurring among the foolish or feeble-minded are not reasonable.

The FTC provides the example that all “Danish pastry” is made in Denmark. The fact that some unreasonable individuals may believe that all Danish pastry is actually made in Denmark is not reasonable and does not cause liability to the advertiser. A claim is not deceptive only because it will be unreasonably misunderstood by an insignificant and unrepresentative segment of people.

When representations or sales practices are targeted to a specific audience, the FTC will look at how a reasonable member of that specific group would interpret the claim. For instance, terminally ill consumers might be particularly susceptible to exaggerated cure claims, children would likely believe claims adults would not, claims toward the elderly may be viewed by differently than the general public, etc. Similarly, “claims directed to a well-educated group, such as a prescription drug advertisement to doctors, would be judged in light of the knowledge and sophistication of that group”(FTC Policy Statement on Deception).

In addition, part of the reasonable consumer standard means that an ad may be capable of more than one reasonable interpretation by a consumer. So, if your ad conveys more than one meaning, or is interpreted differently and that meaning is misleading, you will be liable. This is true even if the main meaning of the ad is not deceptive. The critical question is determining what overall impression consumers would take away from a given ad when looking at the ad as a whole.

G. Subjective Claims, Opinions & Puffing

The FTC generally will not bring advertising complaints based on subjective claims that consumers can judge for themselves (i.e. claims based on taste, feel, appearance or smell), opinions or obvious exaggeration or puffing. For example, if a seasoning salt boasts on its website that the product is “delicious” or an ad claims a particular candle “smells great” these are general subjective claims regarding the taste and smell of the products. Stating a product has a “handsomely finished exterior” or comes complete with an “attractive carrying case” are examples of subjective opinions. Just because not everyone might find the exterior of the product in question handsome or that the carrying case is attractive does not make the ad deceptive.

Since these types of claims don’t pose risks to health or safety even if they were deceptive, they really are not scrutinized by the FTC anyways.

Similarly, a product endorsement that proclaims the product to be “the best product I ever used” is a subjective opinion. The claim is not a statement of fact or some claim about some result, quality or characteristic of the product. In general, if the claim is a subjective one and does not contain an objective component, it is not unlawful.

In contrast, claiming a product is superior based “on all the latest research and data” is not subjective any longer. It’s misleading if the product really is not superior based on the most recent research and data. Claiming a flashlight “outlasts all other major brands” or “more customers prefer our hand lotion to any other” is an objective claim which must be supported with some credible evidence of what is claimed. Opinions are deceptive only “if they are not honestly held, if they misrepresent the qualifications of the holder or the basis of his opinion or if the recipient reasonably interprets them as implied statements of fact”.

Advertisements involving obvious exaggeration or puffing are not unlawful. These are claims that the reasonable consumer would not believe. For example, claiming a child’s wooden sled that is “handcrafted by Santa’s elves” is obvious exaggeration, or claims that a product is “superior” to all others is a general statement and is puffing. Vague statements such as “the breakthrough the Industry has been waiting for” or “this could be the opportunity of a lifetime” are also examples of puffing and are lawful. These statements are really more in the nature of boasting than making an actual factual claim.

EXAMPLE: American Italian Pasta Co. vs. New World Pasta Co. (2004). The court stated that in order for a claim to be false, it must be “a specific and measureable claim capable of being proved false.” The Court in this example found that American Italian Pasta Co.’s use of the phrase “America’s favorite pasta” was not a statement of fact, but was considered subjective and vague puffing. This case provided a very good definition of what is considered puffing: “puffing is exaggerated statements or boasting upon which no reasonable person would rely or vague and highly subjective claims of product superiority.”

Regulatory & Legal Framework – Do We Need a Franchising Law in India?

Mater Franchising arrangements are the flavor of the day as it provides the franchisor the benefit of the franchisee’s knowledge of the local environment; provides access to local sales and marketing expertise and channels; reduces investment; requires negligible government approvals; provides freedom from recruitment of local workforce and consequently lowers the financial risk of the franchisor. The current regulatory restrictions on retail trading by foreign companies coupled with sustained economic growth; ever expanding market with a thriving class of urban consumers; quality consciousness amongst India consumers are some of the factors contribution to franchising being increasingly used as a model by foreign companies for entering India for the first time. A typical master franchise arrangement enables the master franchisee to develop the business in a given territory under the franchisor’s brand name and trademark with or without the right to manufacture the products in accordance with the franchisors’ operating guidelines coupled with assured financial returns to the franchisor.

There is a lot of discussion on the requirement of enacting a specialized law to regulate this growing sector in India. Before I proceed with my thoughts on the subject, I would like to quote a few lines from a report presented by the International Institute for the Unification of Private Law (UNIDROIT, an independent intergovernmental organization of which India is a member) which states that “the foundation of a successful franchising industry in any country lies in the existence of a “healthy commercial law environment” which has been defined as one with a ‘general legislation on commercial contracts, with an adequate company law, where there are sufficient notions of joint ventures, where intellectual property rights are in place and enforced and where companies can rely on ownership of trademarks and know-how as well as on confidentiality agreements’. The Indian legal environment is characterized by all these key attributes, a fact established by ever expanding international franchise relationships with India.

To evaluate the need for a new legislation, let us first understand some of the keys issues/concerns involving a franchising arrangement that generally leads to potential disputes or disconnects between the parties and how they are protected or can be protected within the realm of current Indian legislation:

(1) Licensing and Use of Intellectual Property Rights: IP rights are an integral part of all franchising arrangements and every franchising agreement involves transfer of some form of IP right, either as a license of a trademark/service mark/trade name, or a copyright, or a patent, invention, design or a trade secrets. The manner of use of the IP rights and their protection against misuse is one of the most important concerns of the Franchisor. Some of the disputes that arise during implementation of the franchise agreement relate to the scope and purpose of the trademark license, exclusivity of use and geographical scope, protection of confidentiality, extent of transfer of the know-how, misuse and damage caused to the brand and goodwill of the franchisor, etc. Similarly, post termination related issues include unauthorized use of the trademarks post termination, limited right to use the trademarks for the purposes of disposal of pending inventory (in the absence of which the inventory may go waste), destruction of stationary containing trademarks/trade names, return and ceassation of use of IP rights. India already has a host of IPR related laws including the Trademark Act of 1940, Copyright Act, 1957, the Patent Act, etc that provide for extensive protection and enforcement mechanism for the intellectual property rights including permanent and mandatory injunctions against infringement and passing off. India is also a signatory to the international conventions on intellectual property rights including the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), thereby offering protection to trademarks or brand names, as well as copyright and designs of the foreign franchisor. Recognition and protection is also extended to service marks in India enabling the foreign franchisor to license its mark to a franchisee to provide the services synonymous with him to the consumers in India. IPR laws have also been recently amended to make them compliant with exclusive right obligations under TRIPS and accordingly, the laws meet international standards for IPR protection. Even the Indian courts are quite sensitive and proactive with regard to enforcement of infringement actions. It is therefore evident it is not the absence of IPR laws or its enforcement that lead to potential disputes but lack of carefully drafted and negotiated agreements between the franchisor and the franchisee related to IPR issues that lead to potential IP related litigations.

(2) Obligations of Franchisor and Franchisee: Another crucial issue that lead to potential disputes amongst the parties relate to implementation of the obligations of a franchisee such as the duties and services to be rendered by the franchisee, the investment and infrastructure of the franchise, adherence to specific operating guidelines or manual to maintain uniformity, reporting requirements, quality maintenance of the product or services delivered; creation of an agency between franchisor and franchisee, appointment of sub-contractors to manufacture and sub-franchisee to sell the products and franchisor and franchisee’s liability owing to their acts/omissions; meeting of annual market penetration targets; minimum stock purchase/import obligations; financial returns to the franchisor, including royalty and fee. Similarly, obligations of the franchisor related to periodic training as to the conduct of business, upgrading the franchisee with new methods and technologies, ongoing support, recommendations on general operational, management, accounting and administrative practices, joint marketing and advertising campaigns, sharing of advertising costs generally cause heart burns to the franchisee.

The Indian Contract Act, 1872 is applicable to all the franchise arrangements and provides for specific parameters for legally enforceable agreements, lawful object and purpose of an agreement, lawful consideration for an agreement, performance of an agreement, statutory interventions in unfair or unconscionable transactions, consequences of fraud, misrepresentation and undue influence, voidability and rescission/repudiation of agreement, contracts in restraint of trade, contingent and conditional contracts, performance of reciprocal promises, discharge and frustration of contracts, consequences of breach and rights related to liquidated damages, enforcement of indemnification rights, agents and principal relationship and obligations thereto. It is not the lack of commercial law but lack of carefully drafted agreements that generally fail the parties. It is therefore important that a franchisee tries to bridge all potential gaps by identifying and analyzing “what if?” situations keeping in perspective the franchisee’s financial, technical, manufacturing, marketing, human resource, sales and business planning capabilities.

All of this does not require a specialized law which is already in existence in the form of the Indian Contract Act but a fairly detailed and well negotiated contract. In any case even a specialized law can only provide a broad frame work, the details and the nitty-gritty of the relationship has to be always contractually agreed.

(3) Payment Terms: Delay in payment or non-payment of license and/or royalty payments could be another area of concern for the franchisor. Therefore the manner in which and the times at which such payments are to be made must be carefully addressed. In the event the franchisor is a foreign entity, applicability of prior approvals and terms and conditions for foreign remittance should be informed to the foreign party. The Foreign Exchange Management Act, 1999 and the Regulations made there under specifically address the outbound payment related issues. For instance, an Indian franchisee can remit royalty towards license of trademark upto the amount of 1% of domestic sales and 2% of exports without prior government approval. If the licensor also provides technical know how to the Indian licensee, the Indian company can remit royalty upto 5% of domestic sales and 8% of exports and lump sum payment of upto US$ 2 million without prior government approval. Payment of royalty above the percentages specified above would need prior government approval. Detailed tax laws are already in place to deal with the withholding tax liability on such payments which may get reduced depending upon the provisions in the applicable double taxation avoidance agreement. The key issue is that both the franchisor and franchisee should be made aware before hand on the payment and taxation related regulations.

(4) Duration, Renewal and Termination and its Consequences: Another serious concern of a franchisee is the extendibility of the term of the franchising and licensing agreement. Typically, extension of the term is within the sole discretion of the franchisor based on annual sales turnovers and performance of the franchisee. Quite often a franchisee struggles with the franchisor for renewal of the term especially when the franchisor is lined up with many other franchisees offering higher royalties. The other possible scenario is when a franchisee is suddenly informed of an abrupt termination of the franchise agreement leaving the franchisee with costs of salaries, infrastructure and interest on working capital and other debts. Now do we need a law to tackle with this abrupt termination or non-renewal situations. First of all, it should be clearly understood that all agreements entered into between private parties (whether under franchise domain or any other commercial arrangements) are terminable in nature. This is regardless of the terms in the franchise agreement that the contract is interminable. The Indian Contract Act 1872 and the Specific Relief Act, 1963 supported by various Supreme Court judgments are clear that even in the absence of specific clause authorizing and enabling either party to terminate the agreement, from the very nature of the agreement, which is private commercial transaction, the same could be terminated even without assigning any reason by serving a reasonable notice.

Keeping this in perspective, it is advisable to negotiate for an open ended term (i.e., no fixed term) agreement with suitable termination clauses on breach with adequate notice period for rectification of breach/default. Though non-provision of the agreed notice will render the franchisor liable for damages under the Indian Contract Act, it is advisable to stipulate liquidated damages or substantial termination fees payable by the franchisor on breach of express termination provisions. Suitable exit options should also be provided if both parties are not willing to continue. Some of the key post termination issues that lead to potential dispute and are adequately protected by the existing Indian laws include:

(i) Misuse of IPR rights and Confidential Information post termination is generally a mater of concern for the franchisor. While there are adequate IPR protection laws against misuse and consequent infringement/passing off actions coupled with rights for permanent and mandatory injunctions under the Specific Relief Act, it is important to provide provisions constraining the franchisee from using the IP rights of the franchisor and return of all confidential information obtained during the term of the agreement.

(ii) Protection of franchisees against negative covenants particularly relating to non-competition post termination. It should be understood that a negative covenant restraining the franchisee from directly or indirectly undertaking business competing with the business of the franchisor during the subsistence of the agreement may not be violative of section 27 of the Contract Act, but post termination negative covenants may not be enforceable under Indian laws. This in turn protects the franchisee against unreasonable negative covenants imposed by the franchisor post termination.

(iii) Inventory handling: Inventory handling is a definite pain area issue post termination. Provisions related to re-purchase of the unsold inventory/raw material post termination, destruction of sub-standard products or extension of the trade mark license to enable the franchisee sell the products with in an agreed time period are essential. Vague clauses such as inventory shall be disposed as per mutually agreed terms and conditions should be strictly avoided.

(5) Governing laws and implementation of laws: Choice of governing law and place of jurisdiction is another crucial issue that should be carefully thought upon before being documented. Often jurisdictional hardships deter the parties from taking corrective actions against breach of the franchisee agreement. Indian Code of Civil Procedure confers authority to a court to adjudicate upon a dispute either based on territorial jurisdiction; personal jurisdiction; subject-matter jurisdiction, etc. Detailed provisions supported by judicial precedents are already available to correctly guide the parties to deal with the jurisdiction issues and it is pointless to consolidate all the available laws under a specialized law.

In nutshell, most of the crucial issues that are matter of concern to the franchisee and franchisor can be dealt under a carefully drafted and negotiated franchise agreement.

I am aware that there would be certain concerns with regard to the bargaining power of the franchisee to firmly negotiate the agreement against an established franchisor. In this regard, associations such as Franchising Association of India can play an important role. For example, FAI can prepare and introduce a code of conduct for franchise arrangement wherein the franchisors should provide comprehensive disclosures to each prospective franchisee, so that each prospective franchise can make a well informed decision. For e.g., the Uniform Franchise Offering Circular (UFOC) format in the USA, approved by the Federal Trade Commission includes 23 categories of information that must be provided by the franchisor to a prospective franchisee at least 10 business days before it makes any payment to the franchisor or signs the contract. As stated above, this does not require legislation of a new law but implementation of a code of conduct by Franchising Association of India. The Association can prepare and require Franchisors to mandatory provide information such as corporate history and financial statements of the franchisor, the litigation it faces, intellectual property and proprietary information, etc. Similarly, members of FAI should be able to guide the small franchisees about the potential exposure in the given franchise arrangement and if required negotiate on behalf of the franchisee.

If you are looking from the consumer stand point, we have consumer protection laws that enable a consumer to file complaints with the consumer forums for unfair or restrictive trade practices adopted by franchisee in supply of goods or services by the franchisee. Similarly, antitrust or restrictive trade practices promoted by the franchise arrangement can be addressed through Monopolies and Restrictive Trade Practices Act, 1969 and to be implemented proposed Competition Act. The franchisor and the franchisee would need to ensure that their practices do not classify as monopolistic or restrictive or else the Commission under the MRTP Act can grant injunction to prevent such trade practices and may award compensation for any losses or damage suffered thereby. Tortious liability could also arise out a franchise relationship in the event of negligence leading to loss or damages to third parties or in the event of principal-agent relationship between the franchisor and the franchisee. In such cases the franchisor could be held liable for any torts committed by the franchisee during the course of his business.

Cons of a New Law: Having a host of laws, I personally feel that introduction of specialized law at this stage will rather have a negative impact on the growth on the franchise industry:

– Most developed countries do not have franchise specific law or was introduced much later: The United States of America which is the inventor of all types of franchise arrangements did not have any franchise specific law for good 50 years. Since the time of development of the concept during 1938 till 1993, there was no attempt made to regulate franchising in the U.S. It was only in 1993 that the Uniform Franchising Offering Circular (“UFOC”) Guidelines were adopted in USA as the recommended format for franchise disclosure documents at the State level. By 1995, the new UFOC Guidelines were adopted by each of the state franchise regulatory authorities that required registration of franchise offerings.

United Kingdom does not have any specific legislation or regulation, which regulates franchising or foreign franchising companies. The European Franchise Federation has however prescribed “European Code of Ethics for Franchising” that facilitates prospective franchisee to enter into any binding franchise relationship with full prior knowledge. Similarly, UNIDROIT has in September 2002 adopted a Model Franchise Disclosure Law requiring the franchisors to provide extensive written disclosures to prospective franchisees at a pre-contractual stage.

Even Singapore which is home to many franchises from around the world, there does not exist any specific legislation on franchising in Singapore.

Even in the countries where there are franchise specific laws, the purpose is to require extensive disclosures to the prospective franchisees which in my opinion can be introduced through an association like Franchising Association of India, whereby the franchisor and franchisee adhere to the code of conduct specified by the Association.

– Will hamper the growth of the industry: Given the fact that the franchising sector is still in the nascent stage of evolution and development, we are still not ceased with most of the practical issues involved in implementing and managing a franchise relationship. Therefore, introduction of a specific law may not only fail to address all the issues but may even have an adverse effect by unnecessarily burdening the franchisor and franchises with regulatory and reporting compliance/requirements and may also deter the prospective international franchisor to come to India. It may prove a very theoretical legislation without any practical implementation background of the situations and may need frequent modifications and amendments.

– Most issues can be contractually negotiated and taken care off by contractual arrangement: As already discussed, most of the concerns of the parties can be mutually discussed and agreed upon a negotiated contract. Even otherwise, no single law can deal with the complex nature of issues involved in a franchise arrangement which ranges from protection of IP rights to product liability, exchange control issues, labour laws, enforcement of contractual rights, etc. Further, enforcement issues between the parties to the agreement i.e. the franchisor and the franchisee would be governed by the substantive law of the territory and dispute resolution mechanism agreed between the parties, would take care of the enforcement of such rights. Compulsory resolution of dispute through a self imposed regulator may not be healthy for rapid growth of this sector. I feel that the day and time for a specialized franchise law is yet to come and it may even be pre-mature to enact such a law.

o Conclusion

In view of the foregoing, the time has as yet not arrived to have a franchise specific legislation. It would be in the interest of the franchise industry, which is still evolving and is miles away from reaching its highest potential, that instead of advocating a need for a new legislation to regulate the franchise industry, it would be advisable to let the industry breath, feel, learn, grow and develop in an environment of freedom and competitiveness (though regulated by the present legislation).