In general I provide flat fee billing options to assist you in budgeting your legal expenses. The initial consultation is always free and will allow us to introduce ourselves, discuss your legal needs, and the applicable services that I provide. The initial retainer will generally cover the cost of the services but where cash flow is an issue I’m willing to discuss payment plan options that will fit your business development strategy. The following represent standard packages that cover the needs of the average client and are available for a flat fee. If our initial conversation reveals unique circumstances, I will provide an alternate flat fee quote for a service package that meats your needs.
A set of franchise documents includes the federal disclosure document or FDD that is required by the federal trade commission in every state and the franchise agreement that defines the relationship between the franchisor and franchisee. Some additional documents and exhibits may be included but the FDD and franchise agreement are the two major portions of the franchise documents. I offer the following packages for business owners looking to develop a set of franchise documents for their business concept:
I have created franchise documents for over 70 unique franchise concepts. You will complete several questionnaires that will guide us through the process of pulling together all of the information and making the choices necessary to create your documents. I also specialize in Trademarks and will do a brand strength analysis to ensure you can protect what you are selling. I have over 20 years of experience creating word processing documents so in addition to creating a strong set of legally sound documents for your franchise concept, I also use the latest formatting to ensure that maintaining and updating your documents is easy. This package includes the drafting of your franchise disclosure document, franchise agreement, non-disclosure agreement, and state addenda.
Some existing franchisors may have developed their own documents or simply desire to have a better set of documents created for their business concept. In this scenario, I will provide the same services as with the FDD Complete Drafting service except that instead of sending out the questionnaires, we will begin from the information in the existing set of documents.
Many states only require that you prepare the FDD in accordance with the federal statute. Others require the registration of the FDD with a state administrator. And others require a filing of your franchise offering without submission of the FDD. For the registration states, I will prepare your documents and correspond with the state office on your behalf regarding any changes requested to the FDD and prepare your documents for resubmission. For the filing states, I will prepare the forms for filing and keep your registration on my docket and remind you when it is time to renew.
The FDD needs to be updated annually even if you aren't offering your franchise for sale in a registration or filing State. I will do a through review of your document to bring it up to date. For most franchisors, their fiscal year end date corresponds with the calendar year and this update is done in the first quarter each year.
The registration states require an annual renewal of your registration by submitting your updated FDD. I will prepare your documents and correspond with the state office on your behalf regarding any changes requested to the FDD and prepare your documents for resubmission.
Any time a material alteration is made to your franchise documents or you add a new franchise seller, you need to file an amendment in the registration states. I will prepare your documents and correspond with the state office on your behalf. I will also prepare any changes requested to the FDD and prepare your documents for resubmission.
Trademark License Agreement
Most franchisors elect to form a separate business entity to handle their franchised business sales and support. The trademarks are generally owned by the affiliated business entity so without a license agreement the franchisor doesn’t have the trademark rights it needs to sell franchises. I will draft the agreement you need to complete this common arrangement.
In addition to the single unit franchise documents, some franchisors offer development agreements that fall into one of two categories. Under an area development agreement, the franchisee is given the right to open multiple locations within a specified territory that will all be supported by the franchisor. Under a regional representative agreement, the franchisor subcontracts some of its support obligations in certain areas to the regional representative, such as recruiting qualified franchisee candidates, or providing initial training and on-going support to franchisees in the region.
Master Franchise Agreement
Some franchisors offer master franchise agreements where the master franchisee acts like the franchisor in its territory by signing agreements with sub franchisees directly. This type of agreement is common for international sales where the Master Franchisee will be given an entire country.
Alternate Business Agreements
For some business owners, franchising may not be the right fit. Alternate business agreements include product licenses, distribution agreements, business opportunities, Affiliate Agreements, and Partnership Agreements. These contracts can be drafted for a fraction of the legal fees required for developing franchise documents because compliance with the federal and state statutes is not required.
Franchise Agreement + FDD Purchase Review
Before a franchisee signs the franchise agreement it is always advisable to have a franchise attorney review the documents. With the purchase review service, I will conduct an initial consultation to discuss your particular circumstances and desires in joining a particular franchise concept. I will then review the FDD, franchise agreement and associated documents and flag any provisions that are unfavorable and may need to be negotiated with the franchisor and any provisions that are cause to consider not joining that franchise concept. I will then go through the franchise documents with you and discuss the sections I’ve flagged in addition to any of the standard provisions that will effect the franchise relationship.
FA + FDD Selection Review
When shopping for a franchise to purchase you may find yourself selecting between a few top contenders. You’ve already reviewed the FDD but want to know if there are any legal issues that might affect your decision. I provide a big picture review of the franchise documents to determine if any deal breakers exist that would affect your decision of which franchise to buy. If you move forward with the purchase review service for a single franchise opportunity, I will credit the cost of the selection review for that franchise.
FDD Questions Review
For the client that just has a few specific questions about the documents they are looking to sign, I offer the FDD questions service. With this service, you will provide me with your questions either in writing or during our initial consultation and then I will review only the portions of the franchise documents relevant to your questions and provide you with my opinion.
Negotiation of Terms
If you need to negotiate the terms of the franchise agreement with the franchisor I offer a flat fee negotiation service in addition to my hourly fee option. Some business owners prefer the peace of mind knowing their budget for the legal services going into the representation.
Traditionally when a franchisee and franchisor negotiate alternate terms to those stated in the franchise agreement, those alternate terms will be stated in an addendum that will be signed contemporaneously with the signing of the other franchise documents. The cost of this service listed here reflects the standard length addendum. Depending on the number of sections negotiated, I’ll provide you with a quote for this service that fits with your circumstances.
Most franchisees will need to rent a commercial space from which they will operate their franchised business. I offer a review service for such documents. I will discuss the conditions imposed by your franchise agreement and any special conditions you would like to include during our initial consultation. Then I will review your lease and provide you with an annotated version noting any problematic provisions and discuss your options for negotiation with the landlord during our subsequent conversation.
As the recipient of a Master of Laws in Intellectual Property and the attorney of record on over 60 trademark applications, I understand the strategies and arguments involved in filing and prosecuting trademark applications with the USPTO and handle trademark trial and appeal board proceedings. The trademark application process has three phases: search, application, and prosecution and will take somewhere between 6-12 months to complete on average.
Consultation and Search
Before you consider doing a federal trademark application, it is advisable to determine if any potential conflicts exist and plan a strategy to avoid them or change your mark altogether. Many clients don’t even realize that their mark has already been registered by another party before a search is completed. The consultation and search service includes a discussion of your brand strength and a search for potential conflicts that may affect your brand expansion strategy. In addition to searching federal and state databases, I will look at use of similar marks on the internet including domain name usage. There is no sense in registering a mark if you can’t use it the way you want to.
I generally don’t think that a search report is necessary but some clients like to have a formal trademark Search Report detailing the searches completed and potential conflicts found created to keep in their corporate records. Such a report can serve as evidence of due diligence procedures and lack of knowledge of certain conflicts in future litigation. I’m happy to provide such a report if you desire one.
USPTO Application Filing
Once a search for conflicts has been completed, we will discuss the best strategy for filing trademark application(s) to protect your marks. Some marks contain a textual and pectoral element that can be protected separately by filing two applications. Others may be in use for products or services that encompass more than one class of goods and services requiring multiple filing fees. I will provide you with a quote for minimum and maximum protection based on your particular trademarks in use. Once an application is filed, it takes about three months to get a response from the USPTO. If there are no issues with the application, it will be approved for publication and proceed towards registration. However, most applications require some additional services. If a minor change to the application as submitted is required the examiner will either fix it them selves with our approval in an Examiner’s Amendment or they will issue an office action requiring a Procedural Response. If a major issue exists that would prevent the registration of your mark, the examiner will issue an office action requiring a Substantive Response.
I will include my contact information in the application submitted to the USPTO and serve as your correspondent. If the examiner offers to fix the minor issue with an Examiner’s Amendment, I will review and approve their amendment to the application.
If an office action is issued requiring an alternate description of the mark, disclaimer of a part of the mark, or filing of a new specimen just to name a few examples, I will file the Procedural Response for you.
If an office action is issued requiring a legal argument to be made, I will draft the argument and submit the argument for you. The cost of this service depends on the complexity of the argument to be made. Before we proceed with this service, I will discuss the issue, the best arguments available, and the potential for success so you can make the business decision about what strategy is best. Some clients prefer to avoid costly responses, while other are willing to fight as hard as possible.
Peace Of Mind Registration Package
Most attorneys will quote a trademark registration service price that includes the search for conflicts and the filing of the USPTO application. That service package leaves the business owner vulnerable to the whims of the examiner, whom is not bound by the determinations on other applications. Generally a single response is required that may either be an Examiner’s Amendment, Procedural Response or a Substantive Response but even a single complex Substantive Response can double the cost of the registration. My Complete Registration service includes the Consultation, Search, USPTO Application Filing and any responses required during the prosecution phase. This package occasionally ends up being more than if the services were purchased on an as needed basis but provides the peace of mind to know that your legal fees for your trademark registration won’t get out of control. If you are interested in Peace Of Mind pricing for your trademarks, I will provide a quote to cover your particular registration strategy.
Statement Of Use Filing
If your trademark isn’t in use in commerce at the time the application is filed, the application will be filed as an intent to use application requiring the filing of a statement of use once the mark has otherwise been approved for registration. I will work with you to select an appropriate specimen and complete the filing for you. If you need more than the initial six months provided after the issuance of you notice of allowance for an intent to use application, you can file for additional time in six month increments up to three years before a new application would need to be filed. As long as your application is thus maintained, your priority date remains the date of your initial application meaning that no one else can swoop in.
Section 8 or 9 Renewal Filing
Five years after the registration of your trademark, ten years after the registration of your trademark and every ten years there after, your registration must be renewed by submitting a new specimen showing your continued use in commerce.
Section 15 Incontestability Filing
Five years after the registration of your trademark, you can do an incontestability filing. If this filing is completed, no one will be allowed to file a cancellation proceeding with the TTAB to invalidate your registration.
It is your duty as the owner of a registered trademark to police unauthorized users of your mark. Failure to do so could result in the cancellation of your registration. If you find another party using the same or similar trademark on goods or services similar to yours, I can draft and send them a cease and desist letter.
In order to form your business entity, you will need to file either the Articles of Organization or the Articles of Incorporation depending on whether you are forming a Limited Liability Company or Corporation.
Once your business entity is formed, you will need to create an operating agreement that will govern how the business will pay its investors, bring in new parties, vote on various decisions, and even dissolve among other things.
Do you document your business decisions? Do you hold an annual meeting of your owners and maintain minutes of those meetings in your corporate documents? These documents will be important if you are sued to stop the attacker from reaching your personal assets. With my corporate compliance service, I will check in with you periodically to generate both annual and special meeting minutes. In addition to solidifying your corporate protection, this service is a valuable asset to your business.
Annual Report Filing
Whether you have formed a corporation or a limited liability company, you are required to file certain reports with the state administrator to maintain your entity’s registration. I will prepare and file the reports for you and most importantly, I’ll keep a docket of when your filings are required so you don’t miss one.
Negotiation - $300 per hour
When I provide negotiation services on behalf of a client, the amount of time spent will depend on how the negotiations proceed. Therefore, this service is offered at an hourly rate. When documents that need to be drafted as a result of the negotiations, I will provide a flat fee quote for that service. When negotiations are quick, I generally bill for the full time at the conclusion of the negotiation and when the negotiations span several months, I generally bill at the end of the month for time spent in the preceding month.
Consultation - $300 per hour
When legal issues arise or when you are contemplating a particular course of action, sometimes you need the advice of an attorney on the legal ramifications of your choices or advice on what choices are available. These consultations are distinguished from the initial consultation, which is free, where we will learn more about each other and talk about what legal issues your facing. I know it might seem crummy to have to pay for as little as a half hour of someone’s time, but as a licensed legal practitioner, attorneys need to establish the attorney client relationship for both their and their clients protection. Free legal advice isn’t confidential for example. But, I also offer an outside general counsel subscription plan that includes consultation services. That way you don’t have to think about calling your attorney like an unexpected car repair, its more like going to the gym where you have a membership. You might as well use it.