Commercial concession (franchising) agreement. Franchise agreement (franchise, commercial concession) Franchise agreement gk rf

Commercial concession, franchising or franchise with these words denotes a special relationship between market participants when one party, called franchisor transfers to the other party, called franchisee for cash deductions called - royalty the right to any particular type of business, subject to the use of the established schemes for its conduct.

In the most general sense, franchising can be called the lease of a trademark, along with which the rights to other intellectual property objects are transferred, such as patents for inventions, utility models, industrial designs, know-how, technological instructions, recipes, business diagrams, etc.

Thus, in fact, a concession agreement is a licensing agreement, which specifies in more detail the methods and conditions for using a trademark and, without fail, methods and conditions for using other exclusive rights in the course of doing business, taking into account the commercial practice of the owner of the trademark, as well as its business reputation in the market.

Russian patent legislation of the Civil Code of the Russian Federation, Part 4, defines a commercial concession agreement as an agreement under which one party (rightholder) undertakes to provide the other party (user), who are commercial organizations and (or) individual entrepreneurs, for a fee the right to use a complex of exclusive rights (the right to a company name, the right to the commercial designation of the copyright holder, the right to protected commercial information) and other objects of exclusive rights (trademark, service mark, etc.).

The commercial concession agreement is one of the most complex agreements governed by civil law, because can cover a large number of forms of intellectual property with their inherent nuances.

Here is a general scheme of gradations of the contracts under consideration. The contracts may differ depending on the territory in which the user is supposed to conduct business:

Unlimited territorial agreement of commercial concession (without specifying the territory of its validity of the agreement)
Limited territorial agreement of commercial concession (indicating the territory of its validity))

Depending on the time:

Fixed-term contract (indicating the term of use)
Perpetual contract (without specifying the term of use)

Depending on the scope of use of exclusive rights, reputation or commercial experience of the owner of the rights:

Minimum commercial concession agreement (setting the minimum amount of use)
Maximum commercial concession agreement (setting the maximum amount of use)
Mixed commercial concession agreement (setting minimum and maximum use).

Remuneration under a commercial concession agreement is paid in the forms prescribed in the agreement. The most common forms of remuneration are:

Deductions from revenue
Fixed one-time payments
Fixed recurring payments
Markups on the wholesale price of goods transferred by the copyright holder for resale.

According to paragraph 1 of Art. 1028 of the Civil Code of the Russian Federation, a commercial concession agreement is concluded only in writing. In addition, special requirements are imposed by the above article for the registration of a commercial concession agreement with state bodies. The commercial concession agreement must be registered by the body that performed the state registration of the legal entity or individual entrepreneur that is the copyright holder. In the event that a person registered as a legal entity or individual entrepreneur in a foreign state acts as the copyright holder, the registration of the contract must be performed by the body that carried out the state registration of the legal entity or individual entrepreneur who is the user. It should also be borne in mind that in relations with third parties, the parties to the commercial concession agreement have the right to refer to it only from the moment of the corresponding state registration.

If, under a commercial concession agreement, an object protected by patent legislation (Civil Code of the Russian Federation, Part 4) is used, then such an agreement must be registered with the federal executive body for the regulation of patents and trademarks (Rospatent). If the above requirements are not met, the commercial concession agreement is considered null and void, i.e. not legally binding.

If the concession agreement contains a mention of undisclosed know-how, then it is possible that only that part of the agreement that does not disclose production secrets can be sent for registration. A commercial concession agreement is always onerous and must be accompanied by the monetary deductions specified in the agreement.

It should be borne in mind that for both parties to the parties to the contract in accordance with Art. 1033 of the Civil Code of the Russian Federation, restrictions may be imposed:

The obligation of the user not to compete with the rightholder in the territory where the commercial concession agreement is in force in relation to entrepreneurial activities carried out by the user using the exclusive rights belonging to the rightholder.
User's refusal to obtain similar rights from competitors (including potential ones) of the copyright holder under a commercial concession agreement.
The obligation of the user to agree with the copyright holder on the location of the commercial premises (including their internal and external design) used to exercise the complex of exclusive rights provided under the commercial concession agreement.

In addition, the condition established in the commercial concession agreement, according to which the user has the right to sell goods (perform work or provide services) to certain categories of buyers and customers, or exclusively to those buyers and customers who have a location (place of residence) on the commercial concession specified in the agreement territory is void.

It is also necessary to indicate that, according to both parties to the parties to the agreement in accordance with Part 2, Clause 1 of Art. 1033 of the Civil Code of the Russian Federation, the restrictions established in the commercial concession agreement may be invalidated by the requirements of the antimonopoly authority or other interested person if, taking into account the state of the relevant market and the economic situation of the parties, they contradict the antimonopoly legislation.

Under the terms of a commercial concession agreement, a user can conclude agreements with third parties - commercial subconcession agreements, that is, allow other persons to use a complex of exclusive rights or part of this complex on the terms of a subconcession agreed by them with the rightholder or defined in the commercial concession agreement.

The state duty for registration of a commercial concession agreement is 10 thousand rubles. for one certificate for a trademark specified in the contract. Moreover, in the presence of several certificates for a trademark, the size of the state fee increases by 8,500 rubles for each additional certificate.

The state fee for the registration of the subconcession agreement is also 10,000 rubles. for one certificate for a trademark and 8,500 rubles for each additional certificate.

The cost of our patent office for drafting a commercial concession or subconcession agreement is 8,000 rubles.

The Civil Code of the Russian Federation contains only one named contractual institution (Chapter 54), which belongs to the group of obligations for the creation and use of intellectual property objects - a commercial concession agreement.

In connection with the adoption of the fourth part of the Code, which contains provisions on intellectual property, the rules on the legal regulation of commercial concessions have undergone major reform.

Previously, a commercial concession agreement was understood as an agreement under which one party (rightholder) undertakes to provide the other party (user) for a fee for a certain period or without specifying a period the right to use in the user's business a set of exclusive rights belonging to the rightholder, including the right to a corporate the name and (or) commercial designation of the copyright holder, for protected commercial information, as well as for other objects of exclusive rights provided for by the contract - a trademark, service mark, etc. (Clause 1 of Article 1027 of the Civil Code of the Russian Federation).

By commercial concession agreement one party (rightholder) undertakes to provide the other party (user), for a fee, for a period or without specifying a period, the right to use in the user's business a set of exclusive rights belonging to the rightholder, including the right to a trademark, service mark, as well as rights to other objects of exclusive rights, in particular to a commercial name, a trade secret (know-how).

Changes to the definition of this agreement are due to a change in the approach to company names as objects of exclusive rights, and the legal consolidation of such objects as a commercial name and know-how (secret of production).

A commercial concession is analogous to an institution generally accepted in world practice, or franchises (from fr. franchise- benefit).

The use of the term "commercial concession" in the Civil Code of the Russian Federation does not seem entirely justified, since legislation and legal science also operate with the term "concession agreement".

A concession agreement is usually understood as an agreement in accordance with which the state, on a reimbursable and urgent basis, grants a foreign investor an exclusive right to carry out certain activities and transfers to a foreign investor the ownership of products and income received as a result of such activities. In Russian legislation, the term “production sharing agreement” is used, which differs from a concession agreement in that products obtained as a result of activities permitted by the state to the investor are distributed between the state and the investor on the terms established by the production sharing agreement. The term is also used "Concession agreement according to which one party (the concessionaire) undertakes at its own expense to create and (or) reconstruct the immovable property defined by this agreement (hereinafter referred to as the object of the concession agreement), the ownership of which belongs or will belong to the other party (concessionaire), to carry out activities using (exploitation ) the object of the concession agreement, and the grantor undertakes to provide the concessionaire for the period established by this agreement, the rights to own and use the object of the concession agreement to carry out the specified activity. In this case, the concession agreement is considered not as an independent type of agreement, but as a mixed agreement containing elements of other agreements.

In Russian and foreign legal literature, a commercial concession agreement is often referred to as licensed agreements, based on the fact that a necessary element of its subject is permission (license) for the use of exclusive rights, and in this sense, this agreement is a means of their introduction into economic circulation. This position has received legislative confirmation in connection with the introduction from January 1, 2008 in Art. 1927 of the Civil Code of the Russian Federation, clause 4, according to which the rules of Section 4 are applied respectively to the commercial concession agreement. VII of the Civil Code of the Russian Federation on a licensing agreement, if this does not contradict the provisions of Ch. 54 and the merits of the commercial concession agreement.

A commercial concession agreement as an independent civil law agreement has certain characteristic features (signs) that distinguish it from other types of contractual obligations.

Firstly, only persons engaged in entrepreneurial activity: commercial organizations or individual entrepreneurs can act as parties to the contract (copyright holder and user).

Secondly, a necessary element of the subject of the contract is the granting of a set of exclusive rights by the copyright holder to the user.

Thirdly, under the contract, the user is only given the right to use the corresponding exclusive rights belonging to the copyright holder, without their transfer (assignment) to the counterparty.

Fourthly, the goal of granting the user the right to use a set of exclusive rights belonging to the rightholder is of fundamental importance - the implementation of entrepreneurial activity by both the rightholder and the user.

Fifth, the content of the agreement, the rights and obligations of its parties differ in significant specificity. The copyright holder must provide the user with technical and advisory assistance, train his employees, control the quality of the goods (works, services) produced. The user, in turn, is obliged to follow the instructions of the copyright holder.

Sixth, despite the complete economic dependence on the copyright holder, the user retains legal independence and acts in property turnover on his own behalf, provided that buyers (customers) are informed that he is using the exclusive rights of the copyright holder.

Seventh, the contract may include conditions on various kinds of restrictions on the user's activities.

The commercial concession agreement is consensual, bilaterally binding, onerous.

The importance of a commercial concession (franchising, franchise) is that this agreement is one of the forms of conquering commodity markets by large rightholders - manufacturers of goods and services. The use of a commercial concession relieves the copyright holder of non-production costs associated with opening branches, creating new legal entities, hiring and remunerating additional employees. At the same time, the copyright holder continues to maintain control over the distribution by users of goods, works and services under the copyright holder's trademark. Such a relationship scheme allows in a fairly short time to create branched business networks of the copyright holder.

The use of franchising is also useful for the user, since the presence on the market under a well-known trademark of the copyright holder, as well as the latter's assistance in training employees and organizing production and sales, significantly reduces the degree of entrepreneurial risk of the user. In addition, in his business, the user uses not only the commercial information of the copyright holder, but also his and his commercial experience. All this contributes to the reduction of production costs and significant improvements in the efficiency of capital investments.

For third parties (consumers), the organization of the work of producers of goods, works, services on a franchise basis has the meaning that it ensures compliance with certain standards adopted in the activities of the copyright holder, as a result of which the market is quickly saturated with high-quality goods, works, services.

Elements of a commercial concession agreement

Parties to the contract

The parties to the commercial concession agreement are copyright holder (franchisor) and user(franchisee).

Citizens registered as parties can also act as parties (clause 3 of article 1027 of the Civil Code of the Russian Federation).

Subject of the contract

The only essential condition of the commercial concession agreement is its thing, which should be understood as the granting of the right to use a complex of exclusive rights in business, including the right to a trademark, service mark, as well as rights to other objects of exclusive rights provided for by the contract, in particular to a commercial designation, a secret of production (know-how).

Objects a commercial concession can be intellectual property objects, business reputation and commercial experience of the copyright holder.

The exclusive rights included in such a complex are divided into two groups - those that must be transferred under the contract, and those that may or may not be transferred for use.

New edition and. 1 tbsp. 1027 fundamentally changes the emphasis on which exclusive rights are necessarily transferred under a commercial concession agreement and which are optional.

If previously the right to a company name, commercial designation or to legally protected confidential information was mandatory, and all others, including the rights to a trademark, service mark - to optional, then from January 1, 2008, a mandatory object transferred under a commercial concession agreement for use, is a trademark (service mark), the commercial designation and the secret of production (know-how) become optional objects, and the company name cannot be transferred at all under this type of agreement.

A trademark and a service mark are designations that serve to individualize the goods of legal entities or individual entrepreneurs, as well as the work they perform and the services they provide (Article 1477 of the Civil Code of the Russian Federation). Verbal, pictorial, volumetric and other designations or their combinations may be registered as trademarks (service marks).

The exclusive right to a trademark (service mark) arises from its owner on the basis of state registration of the trademark (service mark) carried out Federal Service on intellectual property, patents and trademarks (Rospatent).

The objects of a commercial concession agreement may also be exclusive rights to inventions, utility models and industrial designs. Exclusive rights to an invention, utility model, industrial design are certified by a patent for an invention, a patent for a utility model, a patent for an industrial design.

Contract price. In accordance with Art. 1030 of the Civil Code of the Russian Federation, remuneration under a commercial concession agreement can be paid by the user to the rightholder in the form of fixed one-time or periodic payments, deductions from proceeds, a markup on the wholesale price of goods transferred by the rightholder for resale, or in another form stipulated by the agreement.

Thus, the question of the price of the contract must be decided by the parties 1. Unlike paragraph 1 of Art. 614, art. 1030 of the Civil Code of the Russian Federation does not provide for the consequences of cases when the price is not determined in the contract. Application in this case, paragraph 3 of Art. 424 of the Civil Code of the Russian Federation seems possible only with reference to the analogy of the law (clause 1 of article 6 of the Civil Code of the Russian Federation), since this rule establishes the rules only in terms of payment for goods, works and services, and not the rights to use intellectual property.

Term of the contract. The term is not an essential condition of the commercial concession agreement and may or may not be established by the parties (clause 1 of article 1027).

Rights and obligations of the parties. In accordance with Art. 1031 GK Pel) copyright holder must:

transfer to the user technical and commercial documentation and provide other information necessary for the user to exercise the rights granted to him under the commercial concession agreement;
instruct the user and his employees on issues related to the exercise of these rights;
ensure the state registration of the commercial concession agreement, unless otherwise provided by the agreement;
provide the user with constant technical and advisory assistance, including assistance in training and advanced training of employees, unless otherwise specified by the contract;
control the quality of goods (works, services) produced (performed, rendered) by the user on the basis of a commercial concession agreement, unless otherwise provided by the agreement.

In accordance with Art. 1034 of the Civil Code of the Russian Federation, the rightholder bears subsidiary responsibility for the requirements for the user about the discrepancy in the quality of goods (works, services) sold (performed, provided) by the user under the commercial concession agreement, and joint and several liability but the requirements for the user as a manufacturer of the goods (goods) of the rightholder ...

In accordance with Art. 1032 of the Civil Code of the Russian Federation, taking into account the nature and characteristics of the activities carried out by the user under a commercial concession agreement, user must:

use a commercial designation, trademark, service mark or other means of individualization of the rightholder in the manner specified in the contract when carrying out the activities provided for by the contract;
ensure the conformity of the quality of the goods produced by it on the basis of the contract, the work performed, the services rendered to the quality of similar goods, works or services produced, performed or provided directly by the rightholder;
follow the instructions and instructions of the copyright holder aimed at ensuring that the nature, methods and conditions of using the complex of exclusive rights comply with how it is used by the copyright holder, including instructions regarding the external and internal design of commercial premises used by the user in the exercise of the rights granted to him under the contract;
provide buyers (customers) with all additional services that they could count on by purchasing (ordering) a product (work, service) directly from the copyright holder;
not to disclose the secrets of production (know-how) of the copyright holder and other confidential commercial information received from him;
provide the specified number of subconcessions, if such an obligation is provided for by the contract;
inform buyers (customers) in the most obvious way for them that he is using a commercial designation, trademark, service mark or other means of individualization by virtue of a commercial concession agreement.

In accordance with Art. 1033 of the Civil Code of the Russian Federation, a commercial concession agreement may provide for restrictions on the rights of the parties under this agreement, in particular:

the obligation of the copyright holder not to provide other persons with similar complexes of exclusive rights for their use in the territory assigned to the user, or to refrain from their own similar activities in this territory;
the user's obligation not to compete with the rightholder in the territory covered by the commercial concession agreement in relation to business activities carried out by the user using the exclusive rights belonging to the rightholder;
the user's refusal to obtain similar rights from competitors (potential competitors) of the copyright holder under commercial concession agreements;
the obligation of the user to agree with the copyright holder the location of the commercial premises used in the exercise of the exclusive rights granted under the contract, as well as their external and internal design.

Such restrictive conditions may be invalidated at the request of the antimonopoly authority or other interested person, if, taking into account the state of the relevant market and the economic situation of the parties, they contradict the antimonopoly legislation.

The conditions that restrict the rights of the parties under the commercial concession agreement are void, by virtue of which the rightholder has the right to determine the sale price of the goods by the user or the price of works (services) performed (provided) by the user, or to establish an upper or lower limit of these prices; the user has the right to sell goods, perform work or provide services exclusively to a certain category of buyers (customers) or exclusively to buyers (customers) who have a location (place of residence) in the territory specified in the contract.

Among the rights of the user, one should especially note the provisions in Art. 1035 of the Civil Code of the Russian Federation his preemptive right to renew the commercial concession agreement for a new term. A user who has properly performed his duties has, upon the expiration of the term of the commercial concession agreement, the right to conclude an agreement for a new period on the same terms. The rightholder has the right to refuse to conclude a commercial concession agreement for a new term, provided that within three years from the expiration date of this agreement, he will not conclude similar commercial concession agreements with other persons and agree to conclude similar commercial subconcession agreements, the effect of which will apply to the same territory in which the terminated agreement was in force. In the event that, before the expiration of the three-year period, the copyright holder wishes to grant someone the same rights that were granted to the user under the terminated agreement, he is obliged to offer the user to conclude a new agreement or to reimburse the losses incurred by him. When concluding a new contract, its terms must be no less favorable for the user than the terms of the terminated contract.

The second specific user right is the so-called the right to "follow" - enshrined in Art. 1038 of the Civil Code of the Russian Federation, the rule on the preservation of the commercial concession agreement in force in the event of a change of parties - the transfer to another person of any exclusive right included in the set of exclusive rights provided to the user is not a basis for changing or terminating the commercial concession agreement. The new rightholder becomes a party to this agreement in terms of the rights and obligations related to the transferred exclusive right. In the event of the death of the rightholder, his rights and obligations under the contract of commercial concession pass to the heir, provided that he is registered or, within six months from the date of opening the inheritance, is registered as an individual entrepreneur. Otherwise, the contract is terminated.

Both considered rights are similar in nature to similar rights of the lessee (Articles 621 and 617 of the Civil Code of the Russian Federation).

The form of the contract and the requirement for its registration. In accordance with paragraph 1 of Art. 1028 of the Civil Code of the Russian Federation, a commercial concession agreement must be concluded in writing under pain of invalidity (nullity). In addition, it is subject to state registration with the federal executive body for intellectual property (Rospatent). If this requirement is not met, the contract is also considered null and void (clause 2, article 1028).

Before making changes to Ch. 54 of the Civil Code of the Russian Federation, the registration of commercial concession agreements was entrusted to the bodies that registered the legal entity or individual entrepreneur acting as the rightholder under the agreement (the user if the rightholder is a foreign individual or legal entity), i.e., to the tax authorities. The procedure for registering contracts was established by order of the Ministry of Finance of Russia dated August 12, 2005 No. 105n "On the registration of commercial concession (subconcession) contracts" 1. However, if the rights to use objects protected in accordance with patent legislation were transferred under the contract, then the contract was also subject to registration with Rospatent. At present, the procedure for registering commercial concession agreements is established by the Administrative Regulations for the execution by the Federal Service for Intellectual Property, Patents and Trademarks of the state function of registering agreements on the grant of the right to inventions, utility models, industrial designs, trademarks, service marks, protected computer programs, databases, topology of integrated circuits, as well as commercial concession agreements for the use of intellectual property objects protected in accordance with patent law Russian Federationapproved by the Order of the Ministry of Education and Science dated October 29, 2008 No. 321 1.

Both of these acts have not been canceled, but if the first cannot actually be applied, then the second is subject to application taking into account the changes made to Ch. 54 of the Civil Code of the Russian Federation.

Although the Civil Code of the Russian Federation does not contain a rule that a commercial concession agreement can be concluded only by drawing up one document signed by the parties, in our opinion, taking into account the provisions of the above Rules for registering contracts, the use of other methods of concluding contracts is excluded.

Change and termination of the contract. Commercial subconcession

In accordance with Art. 1036 of the Civil Code of the Russian Federation, the amendment of the commercial concession agreement is carried out in accordance with the general rules on amendment of contracts (Chapter 29 of the Civil Code of the Russian Federation). Moreover, the change in the commercial concession agreement, as well as its conclusion, is subject to state registration in the manner prescribed by paragraph 2 of Art. 1028 of the Civil Code of the Russian Federation.

The possibility of termination of a commercial concession agreement depends on whether it was concluded for a certain period or not.

According to paragraph 1 of Art. 1037 of the Civil Code of the Russian Federation, any of the parties to a commercial concession agreement concluded without specifying a period has the right to withdraw from the agreement at any time by notifying the other party six months in advance, unless the agreement provides for a longer period.

For early termination of the contract unilaterally, there must be grounds established by law, such termination is possible only in court. However, the contract can be terminated at any time by agreement of the parties.

Early dissolution a commercial concession agreement concluded with an indication of the term, as well as termination of an agreement concluded without specifying a term, are subject to state registration in the manner prescribed by paragraph 2 of Art. 1028.

In the event of termination of the right to a trademark, service mark or commercial designation belonging to the right holder, when such a right is included in the complex of exclusive rights granted to the user under a commercial concession agreement, without replacing the terminated right with a new similar right, the commercial concession agreement shall be terminated.

The commercial concession agreement is also terminated when the rightholder or user is declared insolvent (bankrupt).

In accordance with Art. 1039 of the Civil Code of the Russian Federation in the event of a change by the rightholder of the commercial designation included in the complex of exclusive rights granted to the user under a commercial concession agreement, this agreement continues to operate with respect to the new commercial designation of the copyright holder, unless the user requests termination of the contract and compensation for damages. If the contract continues, the user has the right to demand a commensurate reduction of the remuneration due to the copyright holder.

If during the period of validity of the contract of commercial concession the period of validity of the exclusive right, the use of which was granted under this contract, has expired, or such right has been terminated on another basis, then in accordance with Art. 1040 of the Civil Code of the Russian Federation, the commercial concession agreement continues to operate, with the exception of the provisions related to the terminated right, and the user, unless otherwise provided by the agreement, has the right to demand a commensurate reduction of the remuneration due to the copyright holder.

In the event of termination of the exclusive right to a trademark, service mark or commercial designation belonging to the copyright holder, the consequences provided for in paragraph 3 of Art. 1037 and Art. 1039 of the Civil Code of the Russian Federation.

Commercial subconcession

In accordance with paragraph 1 of Art. 1029 of the Civil Code of the Russian Federation, the contract of commercial concession may provide for the right of the user to allow other persons to use the complex of exclusive rights granted to him or part of this complex on the terms of subconcession agreed by him with the copyright holder or specified in the contract of commercial concession. The agreement may stipulate the user's obligation to provide, within a certain period of time, a certain number of persons with the right to use these rights on a subconcession basis.

A commercial subconcession agreement, like other subcontracts (for example, a sublease agreement), cannot be concluded for a longer period than the main commercial concession agreement.

If the commercial concession agreement is invalid, the commercial subconcession agreements concluded on the basis of it are also invalid.

Unless otherwise provided by a commercial concession agreement concluded for a period of time, upon its early termination, the rights and obligations of the secondary rightholder under the commercial subconcession agreement (user under the commercial concession agreement) shall pass to the rightholder, unless he refuses to assume the rights and obligations under this agreement ... This rule is accordingly applied in the termination of a commercial concession agreement concluded without specifying a period.

The user bears subsidiary liability for harm caused to the copyright holder by the actions of secondary users, unless otherwise provided by the commercial concession agreement.

1. Under a commercial concession agreement, one party (rightholder) undertakes to provide the other party (user), for a fee, for a period or without specifying a period, the right to use in the user's business a set of exclusive rights belonging to the rightholder, including the right to a trademark, service mark, as well as rights to other objects of exclusive rights provided for by the contract, in particular to a commercial name, a secret of production (know-how).

2. The commercial concession agreement provides for the use of a set of exclusive rights, business reputation and commercial experience of the copyright holder in a certain amount (in particular, with the establishment of the minimum and (or) maximum volume of use), with or without specifying the territory of use in relation to a certain area of \u200b\u200bentrepreneurial activity ( the sale of goods received from the copyright holder or produced by the user, carrying out other trading activities, performing work, rendering services).

3. Parties to a commercial concession agreement may be commercial organizations and citizens registered as individual entrepreneurs.

4. The rules of Section VII of this Code on a licensing agreement are accordingly applied to a commercial concession agreement, if this does not contradict the provisions of this chapter and the essence of the commercial concession agreement.

Commentary on Art. 1027 of the Civil Code of the Russian Federation

1. The contract of commercial concession, in international commercial practice known as franchising, gained fame in the United States in the 30s. XX century thanks to Howard Johnson, and then in the Woolworth store system and in the 50s. reached the highest development in this country. In France, this agreement appeared earlier: starting from the 20s. the well-known chain of stores Priziunik, Pronuntia is functioning. In one form or another, franchising exists in more than 80 countries, however, legal regulation exists only in a few, including the USA, France and Russia. In addition to legislative regulation, the European Franchising Association, which includes the national associations of Austria, Belgium, Denmark, France, Germany, Hungary, Italy, the Netherlands, Portugal and the United Kingdom, has adopted the Code of Principles and Standards of Conduct. UNIDROIT has developed a Guide to International Master Franchise Arrangements - Guide to International Master Franchise Arrangements. UNIDROIT (Rome, 1998). Currently, franchising in the US covers 30% of the retail trade, in Australia 90%.

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Vilkova N.G. Contract law in international circulation. M .: Statut, 2004 // SPS "ConsultantPlus".

Evdokimova V.I. Franchise and commercial concession agreement // Patents and licenses. 1998. N 1.P. 23 - 28.

In foreign law, a franchise agreement (a commercial technology transfer agreement) is understood as a commercial agreement by which the reputation, technological information and expertise of one party are combined with the investments of the other party for the purpose of selling goods or providing services directly to the consumer.

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Intellectual Property Reading Material. Geneva, 1995. P. 325.

Currently, the commercial concession agreement is regulated by Ch. 54 of the Civil Code of the Russian Federation, Order of the Ministry of Education and Science of Russia dated October 29, 2008 N 321 "On approval of the Administrative Regulations for the execution by the Federal Service for Intellectual Property, Patents and Trademarks of the state function of registering agreements on the granting of rights to inventions, utility models, industrial designs, trademarks , service marks, protected computer programs, databases, integrated circuits topology, as well as commercial concession agreements for the use of intellectual property protected in accordance with the patent legislation of the Russian Federation ", Order of Rospatent dated December 29, 2009 N 186" On approval Recommendations on the verification of agreements on the disposal of the exclusive right to the results of intellectual activity or means of individualization. " Within the framework of the European Union, the Regulation 4087/88 on the application of Art. 85 (p. 3) of the Rome Treaty to the category of franchising agreements, December 22, 1999 Regulation N 2790/1999 on the application of Art. 81.1 Consolidated version of the EU Treaty categorized as vertical agreements and harmonized practices.

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Bulletin of normative acts. 2009. N 22.

SPS "ConsultantPlus".

Vilkova N.G. Contract law in international circulation // ATP ConsultantPlus.

The Civil Code of the Russian Federation regulates the commercial concession agreement since March 1, 1996 by the norms of Ch. 54. The first commercial concession agreement in Russia was registered with Rospatent on June 20, 1996 - an agreement between Colgate Palmolive (USA) and the user of Com Palm JSC (RF). The subject of the contract is 35 inventions (seven issued patents), seven industrial designs and 60 trademarks.

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Eremenko V.I., Evdokimova V.I. Improving the licensing system in the European Union // Patents and licenses. 1997. N 7.P. 31 - 36.

Russian pre-revolutionary law provided for a kind of analogue to this agreement - a deal with a company. A firm was understood as the name of a commercial enterprise as a separate private economy, which had as its purpose to individualize the enterprise and constituted its affiliation. Since the firm was part of the enterprise, it could not be the subject of the transaction separately from the enterprise. So, M.I. Kulagin defined a commercial concession agreement as a franchise agreement under which a company grants others the right to use certain trademarks, names, symbols to denote certain types of activities, products or services. In the franchise agreement, the user undertakes to follow the strict instructions of the company, which has the right to monitor their compliance at any time. An analysis of points of view on the legal nature of a commercial concession agreement, from understanding it as a license agreement to an agreement “included in the group of obligations aimed at transferring objects of civil rights for temporary use”, is given in the work of M.I. Braginsky and V.V. Vitryansky “Contract law. Book three ".

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Kulagin M.I. Selected Works. M .: Statut, 1997.S. 265.

Trakhtengerts L.A. Commercial concession agreement // Civil law of Russia. Part two. Law of Obligations: Course of lectures / Otv. ed. IS HE. Sadikov. M., 1997.S. 587.

Romanets Yu.V. The system of contracts in the civil law of Russia. M., 2001.S. 362.

Braginsky M.I., Vitryansky V.V. Contract law. Book three: Contracts for the performance of work and the provision of services. M .: Statut, 2002.S. 978 - 984.

It seems that, by its legal nature, a commercial cession agreement is a complex agreement in which a licensing agreement on the granting of exclusive rights to trademarks and other objects of exclusive rights prevails as a basis (taking into account Federal Law No. 231-FZ of December 18, 2006 "On the introduction of part four of the Civil Code of the Russian Federation"). This conclusion is confirmed by the addition of the commented article of clause 4 on the application to the commercial concession agreement of the provisions of part four of the Civil Code of the Russian Federation on license agreements. At the same time, from the new version of clause 1 of the commented article (clause 4 of article 25 of the Introductory Law to the fourth part of the Civil Code) it follows that the main feature of the contract is a complex of exclusive rights to trademarks, and this, to a certain extent, deprives the contract of commercial concession of significance as special kind agreement and turns it into a kind of a license agreement on the granting of the right to use trademarks (at least two trademarks) or a complex license (mixed agreement). In this regard, the problem arises of distinguishing between a licensing agreement on the granting of the right to use a trademark and a commercial concession agreement, given that a licensing agreement for a trademark, like a commercial concession agreement, is aimed at using an exclusive right, and due to the legal nature of a trademark - for business purposes. Both contracts are onerous: the user pays a fee for the use of trademark rights. Considering that the exclusive right is understood as a complex of all the rights of the rightholder, it is not possible to provide a complex of exclusive rights under a license agreement. It should be in accordance with the norms of the fourth part of the Civil Code of the Russian Federation only about granting the right to use the means of individualization and other objects. In addition, the legislation does not provide for the possibility of granting the right to a commercial designation without rights to a trademark, with the exception of an enterprise lease agreement (clause 5 of article 1539 of the Civil Code). It seems that such a limitation is not due to anything, since under a commercial concession agreement, a commercial designation could perform the functions of individualization even in the absence of a trademark, given that a commercial designation can individualize not one, but several enterprises (clause 2 of article 1538 of the Civil Code). At the same time, the peculiarities of a commercial designation as an object not subject to state registration may complicate control over commercial concession agreements in terms of consumer protection. The mention in Art. 1032 of the Civil Code of the Russian Federation of means of individualization starting with a commercial designation, and not with a trademark, since it loses the character of a mandatory element of the contract by virtue of the commented article. Clause 3 of Art. 1037 of the Civil Code of the Russian Federation provides that in the event of termination of the right to a commercial designation belonging to the copyright holder without replacing the terminated right with a new similar right, the commercial concession agreement is terminated. However, since a commercial designation is not considered by the legislator as a mandatory object of a commercial concession agreement, there is no reason to terminate the agreement while retaining the rights to a trademark or service mark.

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Collection of legislation of the Russian Federation. 2006. N 52 (part 1). Art. 5497. Further - the Introductory Law to the fourth part of the Civil Code.

The ambiguous approaches to determining the legal nature of a commercial concession agreement are due to the use in Russian legislation of different order criteria for delimiting agreements. We are talking about the objects of exclusive rights, about the complex, entrepreneurial nature of the contract, about its subject composition.

Along with the sign of the focus of the commercial concession agreement on the use of means of individualization and other objects of exclusive rights for the commercial concession agreement, it is advisable to highlight two more main features: 1) granting a set of rights to means of individualization; 2) the granting of rights for use in entrepreneurial activity. These criteria are basic in determining the legal nature of a commercial concession agreement as a special license agreement and its delimitation with other agreements, for example, with a simple partnership agreement.

Under a commercial concession agreement, rights to inventions, industrial designs, utility models, works of science, literature, art and other objects may also be granted. The granting of a set of rights to other objects without trademark rights should not be considered as a commercial concession agreement. Moreover, the wording of clause 1 of the commented article does not allow the alienation of exclusive rights, which testifies to the purely licensing nature of the contract, both exclusive and non-exclusive, of a mixed nature. A commercial concession agreement may combine elements of various licensing agreements, both in terms of the facility composition and the nature of the transferred rights.

A prerequisite for a commercial concession agreement is the granting of the right to use trademarks (service marks).

An agreement under which the right to use only a commercial designation and a trade secret (know-how) is granted and the right to use a trademark is not granted cannot be considered as a commercial concession agreement and, accordingly, is not subject to registration with Rospatent. Refuses to register such an agreement.

If an application for registration of a commercial concession agreement is submitted to Rospatent, under which the right to use inventions, utility models, industrial designs and other objects is granted, but the right to use trademarks is not granted, the applicant is sent a notice of refusal to register such an agreement with the above reasons, as well as the parties to the agreement are invited to formalize their relations under a license agreement, which can subsequently be registered (clauses 3.4.2, 3.4.3 of the Order of Rospatent dated December 29, 2009 N 186).

The legislation does not regulate the agreement on the granting of rights to a commercial designation separately from other objects, moreover, paragraph 5 of Art. 1539 of the Civil Code of the Russian Federation allows the disposal of the exclusive right to a commercial designation only under a commercial concession agreement or as part of an enterprise.

Until January 1, 2008, the subject of the commercial concession agreement included the rights to the company name as an object. Exclusion of mention of the company name, clause 4 of Art. 25 of the Introductory Law of the fourth part of the Civil Code of the Russian Federation from the subject of the commercial concession agreement is quite justified, since it individualizes the subject - a commercial organization, and not an enterprise as an object. Judicial practice has repeatedly proceeded from the fact that a violation of the right to a firm name is illegal use of a firm name in full. At the same time, the means of individualization of a legal entity is actually not the corporate name as a whole, but only a distinctive element that makes it possible to distinguish one entity from the other.

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For example, the information letter of the Supreme Arbitration Court of the Russian Federation dated May 29, 1992 N С-13 / OPI-122 "On individual decisions of the conferences on arbitration practice" // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1992. No. 1; Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 5, 2002 N 4193/01 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2002. N 6.

A commercial designation is not an obligatory object of a commercial concession agreement and is a means of individualizing an enterprise as a property complex. Since January 1, 2008, part four of the Civil Code of the Russian Federation considers a commercial designation as an object of exclusive right.

The legal nature of a commercial name has long been controversial. So, some authors, referring to the fact that the concept and content of a commercial designation were not disclosed in the legislation of the Russian Federation, according to the customs of business, a commercial designation is proposed to mean a name that is firmly assigned to an entrepreneur in his practice, but is not registered in the prescribed manner. Others believe that a commercial designation “is an unregistered, well-known name used in the activities of an entrepreneur, which is protected without special registration precisely because of its general knowledge (Art. 6 bis of the Paris Convention for the Protection of Industrial Property of 1883, for example“ Mercedes ”or“ Coca Cola") . IN AND. Eremenko in relation to a commercial designation points to Art. 2 (VIII) of the Convention of July 14, 1967 Establishing WIPO and refers to the prominence of a commercial designation in many countries under various names, for example, "sign" (Spain, Italy, Portugal, France), "fictitious or unofficial name" (USA ), "Secondary symbol" (Finland, Sweden). The main feature of such names is that, as a rule, they are not subject to registration and the territorial scope of their action is limited by the location of the trading enterprise.

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Franchising is a type of intermediary activity for the promotion of goods, works and services, in our country regulated by the norms of Ch. 54 of the Civil Code of the Russian Federation. In the legal literature, there are opinions that commercial concession and franchising are not quite the same concepts. Supporters of this approach based their judgments on the fact that the concession (from fr. concession - assignment, permission, privilege) is a relationship on the transfer by the copyright holder of the rights of use to the objects belonging to him, i.e. always an action on the part of the copyright holder. In turn, franchising or franchise (from fr .franchise- benefit, privilege, exemption) is, first of all, the activity of the person to whom the rights to use these rights have been transferred. In principle, this is true, but this distinction is more theoretical in nature and does not have any serious impact on the qualifications of relations. This explains, in particular, the fact that, despite the absence of the concept of franchising in our legislation, Russian courts often use it as a synonym for commercial concession.

According to Art. 1027 of the Civil Code of the Russian Federation under a commercial concession agreement, one party (rightholder) undertakes to provide the other party (user) for a fee for a period or without specifying the right to use the complex

the exclusive rights proper to the rightholder, including the right to a trademark, a service mark, as well as rights to other objects of exceptional character provided for by the contract, in particular to a commercial designation, a secret of production (know-how).

It must be emphasized that it is precisely complex of exclusive rights, not just one right. A necessary part of this complex of exclusive rights is the rights to the trademark, along with them, any other exclusive rights are transferred. That is, if the interaction of the parties is limited to only one transfer of the right to a trademark, then we are talking about concluding a license agreement, and not a commercial concession agreement.

The purpose of the agreement for the user (franchisee) is to obtain the right to conduct business (selling goods, performing work or providing services) according to the method (technology) of the copyright holder (franchisor), and the purpose of the copyright holder is to benefit from granting one or several franchisees the right to engage in it activities and sell goods (perform work, provide services) under his developed brand (trademark, service mark), expand sales markets and maximize profits.

TO necessary conditions commercial concession agreements include a condition on the subject, a condition on the minimum and maximum amount of use of a complex of exclusive rights, a condition on remuneration, a condition on the term of the contract. The subject of the commercial concession agreement determines which exclusive rights are included in the complex of rights transferred to the user. The condition on the minimum and maximum amount of use of a complex of exclusive rights establishes in relation to which specific activity and for what purpose of activity the rights to exclusive rights are transferred 1. The condition of the remuneration establishes the so-called "franchise fee" and provides, as a rule, a one-time fixed amount - a lump-sum payment, periodic (usually monthly) payments - royalties, and in some cases - a contribution of an advertising "share" if the placement is regulated by the agreement advertising. A commercial concession agreement can be concluded both for a period and for an unlimited period.

The basis of the normative regulation of franchising in Russia is Ch. 54 of the Civil Code of the Russian Federation - does not take into account the whole variety of problems arising among participants in trade in this area of \u200b\u200bactivity. Some of the rules are developed by lex mercatoria. Thus, the Unidroit Institute for the Unification of Private Law has developed a Model Law on the Disclosure of Information about a Franchise (Model franchise Disclosure Law), which means by a franchise “rights transferred by one party (franchisor), authorizing and obligating the other party (franchisee) in exchange

3. Parties to a commercial concession agreement may be commercial organizations and citizens registered as individual entrepreneurs.

Comments to Art. 1027 of the Civil Code of the Russian Federation

1. A commercial concession is a specific agreement on the transfer of exclusive rights.

The subject of the contract is a set of exclusive rights, and not one of any rights. It may include the following rights:

Trademark right;

Service mark;

Commercial designation;

Production secret (know-how) and other rights.

Reimbursable contract. It can be concluded both for a certain period and without specifying the period of validity.

The transfer of a set of exclusive rights occurs for a specific purpose, namely for the purpose of their further use by the user in business.

2. The contract may provide for the use of the transferred exclusive rights in certain amounts. In particular, a restriction may be established on the territory of use, type of activity, the amount of manufactured or sold goods, the volume of services provided.

The business reputation and commercial experience of the copyright holder referred to in paragraph 2 are not the subject of the contract, although their use can certainly affect the amount of remuneration to the copyright holder.

3. The specificity of the contract also lies in the fact that only commercial organizations or individual entrepreneurs can be its parties.

4. Since the subject of a commercial concession agreement is similar to the subject of a license agreement, the rules of Section VII on a license agreement, which do not contradict the essence of a commercial concession, can be applied to it.