Case playback:
A was founded in 2002, has the exclusive right of trademark of B, but not the straight camp shop and mature business model. In 2010 July, A company and C signed a "trademark licensing contract", agreed: during the period from July 1, 2010 to June 30, 2013, A company authorized C to use the B trademark, logo and products in the D area to carry out the teaching of English training. A provides teaching materials, teaching, courseware to C, training, guidance and other services, according to C A, the requirements of standard decoration, use unified teaching materials, professional training, accept the unified examination. In 2010 August, C A company housing tenant for admissions, and contribute to the A house rent 55500 yuan, 55500 yuan deposit, flyer costs 1200 yuan, 6440 yuan to buy the book. After signing the contract, A company has not provided the flyer, materials to C, C also failed to recruit students. In 2010 October, C to A, not to disclose the straight camp shop, filing and financial information, and the presence of false propaganda, to request the lifting of "trademark licensing contract", "housing lease contract", refund of fees to pay and compensation for the corresponding losses. A believes that it does not have the franchise contract conditions, "" does not belong to the franchise contract authorized trademarks, but the ordinary trademark authorization. A can continue to provide promotional one-page, materials to C, but cannot remove contract, C shall be responsible for their own profits and losses.
Intensive analysis:
Franchising is a kind of chain operation, according to the concession of the contents into the commodity trademark franchise and business format franchising; according to the given structure of concession is divided into direct franchise and franchising. Franchising is not affected by the funds, geographical, time constraints, influence is not limited by the hardware equipment. The franchisor by granting a franchise, can use the franchisee's capital and personnel to carry out low cost, scale expansion and brand awareness to enhance the low risk. But the commercial franchise has five steps: obtain charter, the franchisor propaganda promotion, quality evaluation, contract signing, supervision and management. Commercial franchise rights in the process of implementing obligation is more complex, with different and general mode of operation risk and ability requirements. Franchisor only standardized operation, to protect their own interests, once the rights have been violated, can effectively obtain the legal relief.
In this case, A and C signed a "contract" in the name of trademark authorization does not contain the franchise ", A company also did not clearly explain to C cooperation is the franchise, franchise contract is not in accordance with the requirements of performance. But "trademark licensing contract" agreed obligations beyond the ordinary trademark licensing contract category, in line with the basic characteristics of the franchise contract. Because A company still does not have unified operation mode of mature, also did not provide relevant guidance for C, indicating that A doesn't have the ability to perform the franchise contract, the contract should be removed. "Trademark licensing contract" is the "foundation of the existence of housing lease contract", in the "trademark licensing contract" to lift the circumstances, "housing lease contract" has been unable to achieve the purpose, should also be a corresponding release. After the cancellation of the contract, A company to charge the flyer fees, textbook fees and security deposit shall be refunded. The termination of the contract by the A caused by fault, the rent should also be returned in full. Because the C in the contract are performance, A company should also be compensation C losses.
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