Websites in the world of franchising

Having a website, possibly in combination with a web shop, is of great importance for every business owner these days. Therefore, in the relationship between a franchisor and a franchisee, discussions on this subject arise quite often. After all, may a franchisee prohibit his franchisors from having their own website? And what about the franchisor's central website? These are topics on which clear agreements are not always made in the franchise agreement.

Central website franchisor

A franchisor will often prefer to operate only a central website. After all, in that case the franchisor has control over the content and design of the website, so it can maintain the uniformity of its franchise formula.

The franchisees can of course benefit from the central website maintained by the franchisor. The Amsterdam court of appeal ruled last year that a franchisor who opens a central website is in principle obliged to realize equal opportunities for its franchisees with it. The question is, however, what the court means by these "equal opportunities. Does it mean that potential customers are directed to the right franchisee via the central website? Or is it sufficient that the franchisor lists all the different franchisees and their details on the website, so that potential customers can see for themselves from whom they want to buy their products? How the equal opportunity criterion should be interpreted will have to be further crystallized.

Own website franchisee

Despite the fact that the franchisor would probably like to retain as much control as possible, a franchisor is not allowed to prohibit a franchisee from having its own website. This is due to the distinction to be made between active and passive sales. Selling products by a franchisee from its physical store is considered so-called "active selling. This involves actively and on one's own initiative approaching customers in one's own exclusive territory or in the exclusive territory of another franchisee. This can include sending e-mails or advertisements to (potential) customers. By contrast, selling products through a website is a form of passive selling, as it does not involve the franchisee actively approaching customers. After all, the customers arrive at the website themselves, for example through an Internet search.

In principle, a franchisor is not allowed under competition law to restrict passive sales by the franchisee. Therefore, the franchisee is always allowed to engage in passive sales, even outside the exclusive territory assigned to him. However, this does not apply, for example, to sending targeted advertising to certain customers outside the franchisee's exclusive territory. After all, in that case there is active selling and this form of selling may be restricted by the franchisor.

Thus, a franchisee may operate its own website even in addition to the franchisor's central website. However, the franchisor may establish guidelines outlining the requirements to be met by the franchisee's own website. These may include, for example, requirements relating to the design of the website and the operation of a certain service level. In this way, the franchisor can protect the franchise formula by ensuring that the franchisees' own websites have an image that is in line with what the franchisee has in mind.

In addition to imposing requirements on the design of the franchisee's own website, the franchisor may require the franchisee to continue to operate at least a physical store. In addition, the franchisor may prohibit a franchisee from registering a domain name containing the franchisor's trade name in its own name. Therefore, the franchisor may impose restrictions on the franchisee's own website.

Conclusion

It follows from the above that both the franchisee and the franchisor can operate a website. In principle, these websites can coexist perfectly well. However, it is good to lay down the agreements about this in the franchise agreement so that no discussion can arise about it at a later date.

A franchisor cannot prohibit a franchisee from operating its own website, but may impose requirements on it. Of course, the franchisor can ensure that the central website is so well set up that the franchisee has no need to have its own website. After all, opening a website involves costs for the franchisee.