Central website (and/or central telephone number), an infringement of an exclusive catchment area?
In various franchise agreements (in the past), the central acquisition of customers via the internet was not properly considered, in combination with the geographic exclusive territories of the franchisees.
On 10 February 2015, the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2015:412) rendered an interesting ruling on the question whether the franchisor’s central website infringed on the franchisee’s exclusive catchment area. The central telephone number of the franchisor was also discussed in that context.
The franchisee argued that the franchisor’s central referral system infringed on the (undisputed portion of the) exclusive service area.
The franchisor disputed this claiming that the exclusive territory, as defined in the franchise agreement, in no way means that potential customers must be referred to the franchise location in the territory in which they are located. This exclusivity only provides that no other franchisees or branches of the franchisor may be established within an assigned district and that entrepreneurs may not work for third parties, according to the franchisor.
According to the franchisor, the referral system also functions properly and (potential) customers from the exclusive service area are referred to the franchisee in question. Via the central telephone number, customers are referred to branches with the shortest travel time for them.
The Court of Appeal ruled that a franchisor who opens a central website is in principle obliged to realize equal opportunities for his franchisees. The franchisee has, in the opinion of the Court of Appeal, not sufficiently proven that the franchisor acted differently than might be expected of it.
With regard to the referral system via the central telephone number, the franchisor had apparently outsourced this to De Telefoongids, whereby the franchisor had made sufficient efforts to bring about synchronicity with the exclusive catchment areas. The referral mechanism based on the shortest travel time was apparently the best possible solution. The Court of Appeal ruled that the franchisor had made sufficient efforts in this respect.
Of course, it is highly dependent on the case-by-case in which way a central referral system functions and should function. In particular, it is also important whether the franchisor itself competes with the franchisee in its exclusive service area. Unlawful competition can easily arise in many webshops of franchisors, if and insofar as this is not (properly) regulated in the franchise agreement.
Mr AW Dolphijn – Franchise lawyer
Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Mail to dolphijn@ludwigvandam.nl
![](https://ludwigvandam.megaconcept.nl/wp-content/uploads/2020/12/232court-min-400x222.jpg)
Other messages
Violation of duty of care affects exoneration
In a dispute about an appeal to an exoneration clause in the franchise agreement by the franchisor, it was considered that the nature of the franchise agreement should be taken into account
Supermarket letter – 5
Acquisition of a supermarket location by terminating the lease at the expense of the sitting tenant is allowed by the Supreme Court.
Acquisition of a supermarket location by terminating the lease at the expense of the sitting tenant is allowed by the Supreme Court
On 25 April 2014, the Supreme Court confirmed for the second time that the waiting period of three years for termination of the rental agreement for retail space due to urgent personal use after the purchase of the property
Unauthorized unilateral collective fee increase by the franchisor
In an important decision of the Amsterdam Court of Appeal of 23 April 2014, the question was whether a franchisor was allowed to implement an increase in a contribution.
Interests Association of Franchisees of the Netherlands (BVFN) is in further consultation with the Minister
On April 16, 2014, the previously announced meeting between the Belangen Vereniging Franchisenemers Nederland (BVFN) and the Ministry of Economic Affairs took place.
Exoneration of duty of care with the franchisor’s prognosis
In a judgment of the Overijssel court of 9 April 2014, the interesting question arose whether a collaboration should be qualified as a franchise.