Commercial concession. Franchise agreement Franchise agreement and franchise agreement: differences

Commercial concession agreement

1. Under a commercial concession agreement, one party (the copyright holder) undertakes to provide the other party (the user), for a fee for a period or without specifying a period, the right to use in the business activity of the user a set of exclusive rights belonging to the copyright holder, including the right to a trademark, service mark, as well as rights for other objects provided for in the contract exclusive rights, in particular on a commercial designation, a production secret (know-how). (edited) Federal Law dated December 18, 2006 N 231-FZ)

2. The commercial concession agreement provides for the use of a set of exclusive rights, business reputation and commercial experience of the copyright holder to a certain extent (in particular, with the establishment of a minimum and (or) maximum volume of use), with or without indicating the territory of use in relation to a certain area entrepreneurial activity(sale of goods received from the copyright holder or produced by the user, carrying out other trading activities, performing work, providing 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 license agreement, unless this contradicts the provisions of this chapter and the essence of the commercial concession agreement. (Clause 4 introduced by Federal Law dated December 18, 2006 N 231-FZ)

Article . Form and registration of a commercial concession agreement

1. A commercial concession agreement must be concluded in writing.

Failure to comply with the written form of the contract entails its invalidity. Such an agreement is considered void.

2. Granting the right to use in the entrepreneurial activity of the user a set of exclusive rights belonging to the copyright holder under a commercial concession agreement is subject to state registration V federal body executive branch By intellectual property. If the requirement for state registration is not met, the grant of the right to use is considered failed. (clause 2 as amended by Federal Law dated March 12, 2014 N 35-FZ)

Article . Commercial subconcession

1. A commercial concession agreement 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 the subconcession agreed upon by him with the copyright holder or defined in the commercial concession agreement. The agreement may provide for the user's obligation to provide, within a certain period of time, a certain number of persons with the right to use the specified rights on a subconcession basis.

A commercial subconcession agreement cannot be concluded for a longer period than the commercial concession agreement on the basis of which it is concluded.

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

3. Unless otherwise provided by a commercial concession agreement concluded for a period, upon its early termination, the rights and obligations of the secondary copyright holder under the commercial subconcession agreement (the user under the commercial concession agreement) pass to the copyright holder, unless he refuses to assume the rights and obligations under this agreement. This rule applies accordingly when terminating a commercial concession agreement concluded without specifying a period.

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

5. The rules on a commercial concession agreement provided for in this chapter are applied to a commercial subconcession agreement, unless otherwise follows from the specifics of the subconcession.

Article . Remuneration under a commercial concession agreement

Remuneration under a commercial concession agreement may be paid by the user to the copyright holder in the form of fixed one-time and (or) periodic payments, deductions from revenue, a markup on the wholesale price of goods transferred by the copyright holder for resale, or in another form provided for by the agreement. (as amended by Federal Law dated July 18, 2011 N 216-FZ)

Article . Responsibilities of the copyright holder

1. The copyright holder is obliged to 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, as well as instruct the user and his employees on issues related to the exercise of these rights. (clause 1 as amended by Federal Law dated December 18, 2006 N 231-FZ)

2. Unless otherwise provided by the commercial concession agreement, the copyright holder is obliged to:

ensure state registration of the grant of the right to use in the entrepreneurial activity of the user a set of exclusive rights belonging to the copyright holder under a commercial concession agreement (clause 2 of Article 1028); (as amended by Federal Laws dated December 18, 2006 N 231-FZ, dated March 12, 2014 N 35-FZ)

provide the user with ongoing technical and advisory assistance, including assistance in training and advanced training of employees;

control the quality of goods (work, services) produced (performed, provided) by the user on the basis of a commercial concession agreement.

Article . User Responsibilities

Taking into account the nature and characteristics of the activities carried out by the user under a commercial concession agreement, the user is obliged to:

when carrying out the activities provided for by the contract, use a commercial designation, trademark, service mark or other means of individualizing the copyright holder in the manner specified in the contract; (as amended by Federal Law dated December 18, 2006 N 231-FZ)

ensure that the quality of the goods, work performed, or services provided by him on the basis of the contract corresponds to the quality of similar goods, work or services produced, performed or provided directly by the copyright holder;

comply with the instructions and instructions of the copyright holder aimed at ensuring compliance of the nature, methods and conditions of use of a set of exclusive rights with how it is used by the copyright holder, including instructions regarding external and internal design 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 when purchasing (ordering) a product (work, service) directly from the copyright holder;

not to disclose the production secrets (know-how) of the copyright holder and other confidential commercial information received from him; (as amended by Federal Law dated December 18, 2006 N 231-FZ)

provide a specified number of subconcessions, if such an obligation is provided for in 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. (as amended by Federal Law dated December 18, 2006 N 231-FZ)

Article . Restrictions on the rights of the parties under a commercial concession agreement

1. A commercial concession agreement may provide for restrictions on the rights of the parties under this agreement, in particular, the following may be provided for:

the obligation of the copyright holder not to provide other persons with similar sets 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 copyright holder 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 copyright holder;

the user’s refusal to obtain similar rights under commercial concession agreements from competitors (potential competitors) of the copyright holder;

the user’s obligation to sell, including resell, manufactured and (or) purchased goods, perform work or provide services using the exclusive rights belonging to the copyright holder at prices established by the copyright holder, as well as the user’s obligation not to sell similar goods, perform similar work or provide similar services using trademarks or commercial designations of other copyright holders;

the user's obligation to sell goods, perform work or provide services exclusively within a certain territory;

the obligation of the user to agree with the copyright holder on the location of commercial premises used in the exercise of exclusive rights granted under the contract, as well as their external and internal design.

2. The terms of the commercial concession agreement, which provide for the user’s obligation to sell goods, perform work or provide services exclusively to buyers (customers) located in the territory specified by the agreement, are void.

3. Restrictive conditions may be declared invalid at the request of the antimonopoly authority or other interested person, if these conditions, taking into account the state of the relevant market and the economic situation of the parties, contradict antimonopoly legislation.

Article . Responsibility of the copyright holder for the requirements imposed on the user

The copyright holder bears subsidiary liability for claims made against the user regarding non-conformity of the quality of goods (work, services) sold (performed, provided) by the user under a commercial concession agreement.

For the requirements imposed on the user as a manufacturer of products (goods) of the copyright holder, the copyright holder is jointly and severally liable with the user.

Article . Preemptive right of the user to conclude a commercial concession agreement for a new term

(as amended by Federal Law dated July 18, 2011 N 216-FZ)

1. A user who has properly performed his duties, upon expiration of the commercial concession agreement, has a pre-emptive right to conclude an agreement for new term.

When concluding a commercial concession agreement for a new term, the terms of the agreement may be changed by agreement of the parties.

2. If the copyright holder refused to conclude a commercial concession agreement for a new term with the user, but within a year from the date of expiration of the agreement with him, he concluded a commercial concession agreement with another person, under which the same rights were granted to the user under the terminated agreement, for under the same conditions, the user has the right to demand, at his choice in court, the transfer to himself of the rights and obligations under the concluded agreement and compensation for losses caused by the refusal to renew the commercial concession agreement with him, or only compensation for such losses.

Article . Changing the commercial concession agreement

(Article 1036 as amended by Federal Law No. 231-FZ of December 18, 2006)

1. A commercial concession agreement may be changed in accordance with the rules of Chapter 29 of this Code.

2. Changes to a commercial concession agreement are subject to state registration in the manner established by paragraph 2 of Article 1028 of this Code.

Article . Termination of a commercial concession agreement

1. Each of the parties to a commercial concession agreement concluded without specifying its validity period has the right to cancel the agreement at any time by notifying the other party six months in advance, unless the agreement provides for a longer period.

Each of the parties to a commercial concession agreement concluded for a specific period or without specifying its validity period has the right at any time to cancel the agreement by notifying the other party no later than thirty days in advance, if the agreement provides for the possibility of its termination by payment of the amount of money established in as compensation.

(Clause 1 as amended by Federal Law dated July 18, 2011 N 216-FZ)

1.1. The copyright holder has the right to refuse to fulfill the commercial concession agreement in whole or in part in the following cases:

violation by the user of the terms of the contract on the quality of goods produced, work performed, services provided;

gross violation by the user of the instructions and directions of the copyright holder aimed at ensuring compliance with the terms of the contract of the nature, methods and conditions of use of the granted set of exclusive rights;

violation by the user of the obligation to pay remuneration to the copyright holder within the period established by the contract.

The unilateral refusal of the copyright holder to fulfill the contract is possible if the user, after the copyright holder sent him a written demand to eliminate the violation, did not eliminate it within a reasonable time or again committed such a violation within one year from the date the specified demand was sent to him.

(clause 1.1 introduced by Federal Law dated July 18, 2011 N 216-FZ)

2. Early termination a commercial concession agreement concluded with an indication of a period, as well as termination of an agreement concluded without an indication of a period, are subject to state registration in the manner established by paragraph 2 of Article 1028 of this Code. (as amended by Federal Law dated December 18, 2006 N 231-FZ)

3. In the event of termination of the right of the copyright holder to a trademark, service mark or commercial designation, when such a right is part of a set 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 is terminated. (as amended by Federal Law dated December 18, 2006 N 231-FZ)

4. If the copyright holder or user is declared insolvent (bankrupt), the commercial concession agreement is terminated.

Article . Maintaining a commercial concession agreement in force when there is a change of parties

1. The transfer to another person of any exclusive right included in the set of exclusive rights granted to the user is not grounds for changing or terminating the commercial concession agreement. The new copyright holder becomes a party to this agreement in terms of the rights and obligations related to the transferred exclusive right.

2. In the event of the death of the copyright holder, his rights and obligations under the commercial concession agreement pass to the heir, provided that he is registered or registers as an individual entrepreneur within six months from the date of opening of the inheritance. Otherwise, the contract is terminated.

The exercise of the rights and fulfillment of the obligations of the deceased copyright holder before the heir accepts these rights and obligations or before the heir is registered as an individual entrepreneur is carried out by a manager appointed by a notary.

Article . Consequences of changing the commercial designation

(Article 1039 as amended by Federal Law No. 231-FZ of December 18, 2006)

If the copyright holder changes a commercial designation that is part of the set of exclusive rights granted to the user under a commercial concession agreement, this agreement continues to be valid in relation to the new commercial designation of the copyright holder, unless the user demands termination of the contract and compensation for damages. If the contract continues, the user has the right to demand a proportionate reduction in the remuneration due to the copyright holder.

Article . Consequences of termination of an exclusive right, the use of which was granted under a commercial concession agreement

If, during the validity period of the commercial concession agreement, the validity period of the exclusive right, the use of which is granted under this agreement, has expired, or such right has been terminated on another basis, the commercial concession agreement continues to be in force, with the exception of the provisions relating to the terminated right, and the user, unless otherwise provided agreement, has the right to demand a proportionate 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 Article 1037 and Article 1039 of this Code occur. (as amended by Federal Law dated December 18, 2006 N 231-FZ)

The concept of a commercial concession agreement. Under a commercial concession agreement, one party (the copyright holder) undertakes to provide the other party (the user), for a fee for a period or without specifying a period, the right to use in the user’s business activities a set of exclusive rights belonging to the copyright holder, including the right to a trademark, service mark, as well as rights to others objects of exclusive rights provided for in the contract, in particular, to a commercial designation, production secret (know-how) (Article 1027 of the Civil Code).

A commercial concession agreement is a consensual, paid and reciprocal agreement that mediates the provision of a set of exclusive rights to the results intellectual activity and means of individualization for use in business activities. The term "concession" comes from the Latin word concession, which means grant, permission, assignment.

The obligatory relations arising from a commercial concession agreement are complex, however, a commercial concession agreement does not apply to mixed contracts in the sense of clause 3 of Art. 421 of the Civil Code, but is a new independent type of obligation for domestic legislation. This contractual institution was first provided for by part two Civil Code, the drafters of which were guided by the economic relations actually developing in the market. At the same time, a number of norms of Ch. 54 of the Civil Code is aimed at protecting the interests of third parties - buyers (customers) of products and services sold within the framework of concession relations.

Although the economic interests of the parties to a commercial concession are to a certain extent opposite, they have the same economic goal - expansion in the market by promoting a single business concept, " trademark", "firms". The concession is used by copyright holders not only to generate additional income, but also to intensively develop new markets at minimal cost. For concessionaire users, doing business under a well-known brand seems to be fertile ground for making efforts and making investments with a predictable commercial perspective . Reliance on the resources and experience of the parent company, a well-known name, ensures trust on the part of the consumer. Thus, the efforts of many individuals lead to a “snowball” effect, which strengthens the commercial positions of all parties in the concession network. Within the framework of a commercial concession agreement, constant close cooperation between the parties is inherent.

The performance of the copyright holder and the user under the same brand should not lead to their identification, since each of them independently participates in economic turnover. The commercial concession relationship should not remain a secret to counterparties: the user is obliged to notify consumers in the most obvious way that he is working under someone else’s brand under a concession.

It has been noted in the literature that in relation to third parties, the user must strive for a dual goal, which at first glance seems paradoxical: at the same time, create among these persons the illusion that they are receiving a “branded” product from the manufacturer, i.e. absolutely identical to it, in a room decorated in the same way as a “branded” seller, with all the accompanying services, etc., and immediately dispel this illusion, definitely showing that in fact these persons are not dealing with the original manufacturer , but with an independent entrepreneur who, however, uses this brand legally.

Based on the above, we can formulate the following doctrinal definition: a commercial concession is a business agreement under which one party (the copyright holder), in order to expand its business (commercial enterprise), for a fee, grants the other party (the user) the right to own name sell or otherwise introduce into business circulation products (goods, services) identical to those of the copyright holder, under the latter’s brand.

Commercial concession and franchising. Such a system of organizing economic relations has long been known to foreign legislation under the name “franchising”. The copyright holder is accordingly called the “franchisor”, and the user is called the “franchisee”. It is known that it was franchising agreements that served as a guide for the developers of Chapter. 54 Civil Code. However, the concept of franchising as a business model is undoubtedly broader than the relationship regulated by the commercial concession agreement itself.

Firstly, due to the lack of flexibility of the legal formula of this agreement (clause 1 of Article 1027 of the Civil Code), Ch. 54 of the Civil Code will not apply to transactions where the copyright holder, for any reason, grants the user a license not for a trademark, but for another means of individualization. Secondly, such inevitable aspects of the relationship between the parties as the supply of goods (in the case of sales franchising), spare parts and consumables, and the provision of services remain outside the scope of this type of obligation. Thus, franchising in a broad sense is mediated not only by a commercial concession agreement, but by a system of interconnected parallel obligations regulated by various chapters of part two of the Civil Code. The commercial concession agreement in this case serves as a central unifying link for individual agreements that mediate complex relations between the parties, which has given some researchers grounds to characterize it as a framework agreement.

The rights to objects belonging to the copyright holder are not assigned to the user; he only receives the right to use them in economic activity, and no additional formalities (for example, conclusion and registration of a license agreement) are required.

The rights granted under a commercial concession agreement can be either exclusive - when no one other than the user has the right to exercise them in a certain territory and/or in relation to a certain type of use (exclusive license), or non-exclusive (non-exclusive license) (clause 1 of Art. 1236 Civil Code).

Determining the scope of exclusivity of the user's activities, especially for “remote” types of business - sales of goods by mail, telecommunications and information services - is a common practice of commercial concessions. This principle is aimed at reducing “competition among one’s own”, i.e. to delineate spheres of influence and thereby stimulate franchisees to develop their business by improving the quality and volume of services, and not by extensively expanding (dispersing) their efforts.

Franchising does not exclude intranet competition, and this is its advantage.

As noted earlier, the norms of Sec. 54 of the Civil Code provide increased protection of consumer interests. This goal is achieved by imposing increased obligations and legal liability on the parties. The mandatory nature of these provisions deprives this type obligations of flexibility and makes it more risky. Owners of well-known brands often avoid formalizing relations with regional and local divisions using the institution of commercial concession. Therefore, in practice, relationships that contain all the features of a commercial concession agreement are formalized by concluding licensing, marketing, distribution, agency and other similar agreements. Such agreements must be recognized as sham transactions (clause 2 of Article 170 of the Civil Code), and the provisions on a commercial concession must be applied to the relations of the parties.

The rules on commercial concessions can in many cases apply to so-called multi-level marketing agreements, even if the agreements concluded with participants in the marketing “chain” or “pyramid” do not contain a direct reference to the norms of Chapter. 54 Civil Code.

Contract price. A commercial concession agreement can only be for a fee. The amount of remuneration is an essential term of the contract and therefore must be specifically agreed upon by the parties. Thus, the rule of paragraph 3 of Art. 424 of the Civil Code does not apply.

The remuneration is usually comprehensive and includes a number of payments. In addition, the agreement usually establishes both regular payments to the franchisor to cover its costs associated with maintaining and developing the franchise system, and a one-time payment for the right to open a concession enterprise and the provision of a starter package.

There are two main approaches to establishing both one-time and periodic payments: royalties and lump-sum payments. The lump sum payment is set in a fixed amount and does not depend on the actual volume of the user’s activity. Typically, a lump sum payment will set the user's "entry fee". If the remuneration is established in the form of a royalty, then its size is determined in proportion to the user’s activity indicators in value (turnover, revenue) or in kind (number of units of production, production space, number of seats) terms. This is how periodic payments are usually recorded.

Secondly, the procedure for “renewing” a contract for a new term is not established by law; it only stipulates that such a right is retained by the user for three years. Analyzing judicial practice recent years, we can conclude that the user has the right to conclude a new contract only in the following cases: a) if the copyright holder intends to offer a similar concession (i.e. in relation to the same subject and the same territory) to a third party; b) the actual implementation by the copyright holder of this intention, i.e. concluding a new similar agreement with a third party.

Thirdly, the only means of protecting the preemptive right of the previous concessionaire in this case is a claim for damages. A commercial concession agreement does not provide the user with the right to challenge the validity of a subsequent similar agreement, nor - as would be the case when exercising the right of first refusal - to demand the transfer of the rights and obligations arising from it.

Fourthly, as follows from the literal interpretation of the text of Art. 1035 of the Civil Code, the user’s pre-emptive right to conclude an agreement arises if the commercial concession agreement is concluded for a certain period. The user under a contract concluded without specifying a period, preemptive right does not have the right to conclude a new contract, regardless of whose initiative the contract was terminated.

There is logic in this provision of the Law. By entering into an agreement without specifying a term, the user consciously takes a risk, since his concession can be terminated at any time and, therefore, he should not claim to continue the relationship. The interests of the parties when concluding an agreement without specifying a term are protected in another way: by allowing the right of either party at its own discretion - i.e. without reference to any grounds - refuse the demon fixed-term contract commercial concession, the law provides the other party with a certain grace period. The fact is that notice of refusal must be given no less than six months in advance, and this period can only be extended by contract, but not reduced (clause 1 of Article 1037 of the Civil Code). This minimum six-month period protects the interests of the user by providing a “transition period” to adapt their business to the new situation. However, by mutual agreement (or a court decision, in the event of a significant violation of the contract), the relations of the parties can be terminated before the expiration of the six-month period.

Special grounds for termination of a commercial concession agreement. Special grounds for termination of a contract are divided into two groups: circumstances related to the legal personality of the parties to the contract, and circumstances related to the status of exclusive rights to objects included in the subject of the contract.

The first category includes cases of bankruptcy or liquidation of one of the parties, and if the user is an individual, then also: 1) termination of the status of an entrepreneur or 2) his death and the heirs lacking the status of an entrepreneur at the time of expiration of the period for accepting the inheritance.

In relation to the second category, the validity of exclusive rights to most intellectual property objects is limited by a deadline. However, even during this period their maintenance in force is conditional on the completion of certain formalities, for example the annual payment state duty. In addition, the exclusive rights of the copyright holder may be terminated for other reasons that do not depend on the will of the copyright holder, such as: loss of distinctiveness of a trademark, revocation of a patent or trademark, judgment on recognition of another person as the owner of a patent or trademark, etc. Thus, changes may occur in the composition of the set of exclusive rights provided to the user. The consequences of such changes for the fate of the contract depend on the type of object of the terminated rights.

In the event of termination of rights to a trademark, the commercial concession agreement is automatically terminated, unless the terminated right is replaced by a new similar right. The fate of the contract in this case is in the hands of the copyright holder, since the provision of a similar right depends entirely on his discretion.

A possible basis for early termination of the contract may be the termination of the right to a commercial designation and its replacement with another similar right (brand change). Article 1039 of the Civil Code provides for special consequences in this case that are beneficial to the user who has a similar right in relation to the new commercial designation of the copyright holder. By default, the contract continues to be in force in relation to the new commercial designation, but the user (but not the copyright holder!) has the right to choose: he can either accept the new commercial designation of the copyright holder or demand termination of the contract and compensation for damages.

As for the termination of other rights included in the subject of the agreement, for example, a patent for inventions, a license to use information constituting trade secrets, etc., such events serve as the basis for changing the agreement, but not for its termination. The commercial concession agreement continues to be valid, with the exception of the provisions relating to the terminated right. The user has the right to demand a proportionate reduction in payments due to the copyright holder, i.e. forced change of the contract. The new amount of payments can be established by agreement of the parties, and if such an agreement is not reached, the dispute is resolved by the court.

From the discussed termination cases legal protection the object of exclusive rights should be distinguished from the transfer of the exclusive right to a third party. Universal or singular succession on the side of the copyright holder is not a basis for changing or terminating the commercial concession agreement. The new copyright holder becomes a party to this agreement in terms of the rights and obligations relating to the transferred exclusive right (Article 1038 of the Civil Code), including he is obliged to take measures to maintain the protection of the relevant intellectual property.

If the termination of the right during the term of the contract is caused by improper actions of the copyright holder - failure to pay the annual fee, refusal to renew the trademark registration, etc. - the latter risks being held contractually liable to the user.

Early termination of a commercial concession agreement concluded with a specified period, as well as termination of an agreement concluded without specifying a period, are subject to registration in the manner established by clause 2 of Art. 1028 Civil Code. Until such registration, the agreement remains in force.

After termination of the contract, the user is obliged to stop using the intellectual property objects provided to him, in particular, to exclude from his own name (registered company name) elements that are similar or fully or partially coincide with the commercial designation or trademark of the copyright holder.

Special legal provisions regarding the fate of commercial subconcession agreements in the event of early termination of the main concession agreement or cancellation of an agreement concluded without specifying a period are discussed below.

Commercial subconcession agreement

General provisions. By general rule Without the consent of the copyright holder, the user does not have the right to delegate to third parties the exclusive rights granted to him, in particular, to grant sublicenses, make them as a contribution to the authorized capital of business partnerships and companies or a share contribution to a production cooperative, etc. This rule is dispositive, and this rule can be changed by agreement of the parties.

The consent of the copyright holder that the user has the right to allow other persons to use the set of exclusive rights granted to him or part thereof must be in writing and can either be presented in each specific case (ad hoc vice) or enshrined in the main agreement as a framework consent to conclude subconcession agreements under certain conditions. It should be emphasized that, in contrast, for example, to the owner’s consent to sublease property (clause 2 of Article 615 of the Civil Code), the law assumes that the copyright holder must not only express fundamental approval for the conclusion of such agreements, but also define them essential conditions(Clause 1 of Article 1028 of the Civil Code).

As a rule, the user’s relationship with a third party is formalized by a commercial subconcession agreement. Providing a certain number of subconcessions within an appropriate period may be not only a right, but also an obligation of the user. By including such conditions in the concession agreement, the copyright holder realizes its interest in expanding the network.

Features of a commercial subconcession agreement. In a subconcession agreement, the user acts as a secondary copyright holder, and his counterparty acts as a secondary user. The provisions of Chapter 1 apply to the commercial subconcession agreement. 54 of the Civil Code rules on a commercial concession agreement, unless otherwise follows from the characteristics of the subconcession. The question arises, what aspects of the parties' relationship "suggest otherwise"? It is logical to assume that the copyright holder can directly give instructions and instructions on the nature of the use of a set of exclusive rights to the secondary user and exercise control over his activities. He is also obliged to ensure the provision of technical assistance to the secondary user, assistance in training and advanced training of workers - after all, the competence of the primary user in these matters is very limited.

The rights granted on the basis of a subconcession are derived from the rights received by the user under the main agreement. Their scope cannot go beyond the rights granted to the user under the main commercial concession agreement (see paragraph 2 of Article 1027 of the Civil Code). Otherwise, the secondary copyright holder will initially be unable to fulfill the obligation to grant the secondary user the rights to use intellectual property (clause 1 of Article 1031 of the Civil Code). From this circumstance it logically follows that a commercial subconcession agreement cannot be concluded for a longer period than a commercial concession agreement.

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

The literature notes that a commercial subconcession agreement generates not only direct relations between the parties to the agreement, but also indirect relations between the secondary user and the primary copyright holder. Such indirect relations are manifested, in particular, in the provisions on the fate of the commercial subconcession agreement upon termination of the main agreement (with the exception of termination of the agreement due to the expiration of its term). The rights and obligations of the secondary copyright holder under a commercial subconcession agreement (the user under a commercial concession agreement) in the event of termination of an agreement concluded without specifying a period, or premature termination of a fixed-term contract, pass to the copyright holder, unless he refuses to assume the rights and obligations under this agreement ( Clause 3, Article 1029 of the Civil Code). Then, with the consent of the copyright holder, the subconcession agreement is transformed into a direct agreement between the copyright holder and the former subconcessionaire, i.e. the persons in the obligation are replaced: the copyright holder takes the place of the retired “intermediate link” - the user (Article 1029 of the Civil Code). This rule primarily protects the economic interests of the copyright holder, who is given the opportunity to maintain relations with subconcessionaires upon disposal of the intermediate link. This rule must be applied with certain reservations. In particular, if the initiator of termination of the main commercial concession agreement was the user, and the grounds for such termination were a change in the company name or commercial designation of the copyright holder (Article 1039 of the Civil Code) or violations of obligations committed by the copyright holder under the commercial concession agreement that affect the interests of the subconcessionaire, then the subconcessionary has the right refuse to transform the subconcession agreement into the main agreement.

Unlike general rules on the liability of the debtor to the creditor for the actions of third parties (see Article 403, paragraph 3 of Article 706 of the Civil Code) under a subconcession agreement, the secondary user is responsible for the damage caused by his actions directly to the primary copyright holder, although he is not in direct contractual relations with him . This rule will, in particular, apply if the actions of the secondary user entail the disclosure of confidential information, violate the exclusive rights of the copyright holder, undermine his business reputation, and lead to a decrease in demand for his products.

The user bears subsidiary liability for the actions of secondary users (subconcessionaires) that cause damage to the copyright holder, although they cannot be qualified as a violation of the user’s obligations under the commercial concession agreement (clause 4 of Article 1029 of the Civil Code). In particular, harm can be caused by the subconcessionaire's disclosure of information constituting the copyright holder's trade secret, as well as by actions that reduce the attractiveness of the copyright holder's brand, damaging its business reputation and the value or protectability of its trademarks.

Commercial concession, franchising or franchising these words denote a special relationship between market participants when one party, called franchisor transfers to another party called franchisee for monetary contributions called - royalties right to any certain type business, subject to the use of 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 objects of intellectual property are transferred, such as patents for inventions, utility models, industrial designs, know-how, technological instructions, recipes, business schemes, etc.

Thus, in essence, a concession agreement is a license agreement that specifies in more detail the methods and conditions for using a trademark and, without fail, the methods and conditions for using other exclusive rights in the course of doing business, taking into account the commercial practice of the trademark owner, as well as his 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 (the copyright holder) undertakes to provide the other party (the user), who are commercial organizations and (or) individual entrepreneurs, for a fee, with the right to use in business activities by the user a complex of exclusive rights (the right to a company name, the right to a commercial designation of the copyright holder, the right to protected commercial information) and other objects of exclusive rights (trademark, service mark, etc.).

A commercial concession agreement is one of the most complex contracts regulated by civil law, because may cover large number forms of intellectual property with their inherent nuances.

Here is a general scheme of gradations of the agreements under consideration. Agreements may vary depending on the territory in which the user is supposed to conduct business activities:

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

Depending on time:

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

Depending on the extent of use of exclusive rights, reputation or commercial experience of the rights holder:

Minimum commercial concession agreement (establishing a minimum volume of use)
Maximum commercial concession agreement (establishing the maximum volume of use)
Mixed commercial concession agreement (establishing minimum and maximum volumes of use).

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

Deductions from revenue
Fixed one-time payments
Fixed periodic 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, the above-mentioned article imposes special requirements for registration of a commercial concession agreement with government agencies. The commercial concession agreement must be registered by the body that carried out the state registration of the legal entity or individual entrepreneur who is the copyright holder. In the event that the copyright holder is a person registered as a legal entity or individual entrepreneur in foreign country, registration of the agreement must be carried out by the body that carried out the state registration of the legal entity or individual entrepreneur who is the user. It is also necessary to take into account that in relations with third parties, the parties to a 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 will be used (Civil Code of the Russian Federation, Part 4), 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 void, i.e. having no legal force.

If the concession agreement contains a mention of non-disclosed know-how, then it is possible that only that part of the agreement in which production secrets are not disclosed can be sent for registration. A commercial concession agreement is always paid and must be accompanied by monetary contributions specified in the agreement.

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

The user’s obligation not to compete with the copyright holder in the territory in which the commercial concession agreement is valid in relation to business activities carried out by the user using the exclusive rights belonging to the copyright holder.
The user’s refusal to obtain similar rights under a commercial concession agreement from competitors (including potential) of the copyright holder.
The obligation of the user to agree with the copyright holder on the location of commercial premises (including their internal and external design) used to exercise the set of exclusive rights granted 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 their location (place of residence) at the commercial concession agreement specified territory is insignificant.

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

Under the terms of the commercial concession agreement, the user can enter into agreements with third parties - commercial subconcession agreements, that is, allow other persons to use a set of exclusive rights or part of this complex on the terms of the subconcession agreed upon by them with the copyright holder or specified in the commercial concession agreement.

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

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

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

Franchising is a type of intermediary activity for the promotion of goods, works and services, in our country regulated by the norms of Chapter. 54 Civil Code of the Russian Federation. There are opinions in the legal literature that commercial concession and franchising are not entirely identical concepts. Proponents of this approach based their judgments on the fact that the concession (from French. concession- assignment, permission, benefit) is a relationship involving the transfer by the copyright holder of the rights of use to objects belonging to him, i.e. always an action on the part of the copyright holder. In turn, franchising or franchising (from French .franchise- benefit, privilege, exemption) is, first of all, the activity of the person to whom the rights to use these rights are transferred. In principle, this is true, but this difference is more theoretical in nature and does not have any serious impact on the qualifications of the relationship. 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 (the copyright holder) undertakes to provide the other party (the user), for a fee for a period or without specifying a period, the right to use a complex of properties in the user’s business activity.

exclusive rights appropriate to the copyright holder, including the right to a trademark, service mark, as well as rights to other exclusive rights provided for in the contract, in particular to a commercial designation, a production secret (know-how).

It must be emphasized that it is transmitted set of exclusive rights, and not just one right. A necessary component of this set of exclusive rights are the rights to a trademark, along with them any other exclusive rights are transferred. That is, if the interaction of the parties is limited to the 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 activities (selling goods, performing work or providing services) using the method (technology) of the copyright holder (franchisor), and the purpose of the copyright holder is to benefit from granting one or more franchisees the right to engage in it activities and sell goods (perform work, provide services) under a brand developed by him (trademark, service mark), expand sales markets and maximize profits.

TO necessary conditions Commercial concession agreements include a condition on the subject matter, a condition on the minimum and maximum volume of use of a set of exclusive rights, a condition on remuneration, and a condition on the term of the contract. The subject of the commercial concession agreement determines which exclusive rights are included in the set of rights transferred to the user. The condition on the minimum and maximum volume of use of a set of exclusive rights establishes in relation to what specific activity and for what purpose the rights to exclusive rights are transferred 1 . The remuneration clause 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 agreement governs the placement advertising. A commercial concession agreement can be concluded for either a term or an indefinite period.

Warp regulatory regulation franchising in Russia - Ch. 54 of the Civil Code of the Russian Federation - does not take into account the variety of problems that arise for participants in trade turnover in this field of activity. Some rules are developed within the framework of the lex mercatoria. Thus, the UNIDROIT Institute for the Unification of Private Law has developed a Model Law on Disclosure of Franchise Information (Model franchise Disclosure Law), which understands a franchise as “the rights transferred by one party (the franchisor), authorizing and obliging the other party (the franchisee) in exchange

Civil Code, N 14-FZ | Art. 1027 Civil Code of the Russian Federation

Article 1027 of the Civil Code of the Russian Federation. Commercial concession agreement (current version)

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

2. A commercial concession agreement provides for the use of a set of exclusive rights, business reputation and commercial experience of the copyright holder to a certain extent (in particular, establishing a minimum and (or) maximum volume of use), with or without indicating the territory of use in relation to a certain area of business activity ( sale of goods received from the copyright holder or produced by the user, carrying out other trading activities, performing work, providing 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 the license agreement are accordingly applied to the commercial concession agreement, unless this contradicts the provisions of this chapter and the essence of the commercial concession agreement.

BB code
Text

Document URL [copy]

Commentary to Art. 1027 Civil Code of the Russian Federation

1. The commented article formulates the definition of a commercial concession agreement - relatively new for Russian legislation a civil law institution borrowed from Western contract law (where this type of obligation is known as franchising).

The economic goal of this agreement is to optimize the development of the copyright holder’s business, as well as reduce the user’s entrepreneurial risk. Regarding legal purpose, then under a commercial concession agreement the copyright holder undertakes to provide the counterparty (user) with the right to use a set of exclusive rights. The legislator leads sample list these rights in the text of the article:

Right to a trademark, service mark;

Rights to other objects of exclusive rights, in particular, commercial designation, production secret (know-how).

Trademark according to Art. 1477 of the Civil Code of the Russian Federation recognizes a graphic, alphabetic or combined designation registered in the established manner that serves to individualize goods legal entities or individual entrepreneurs, which is included in the State Register of Trademarks and Service Marks of the Russian Federation. At the same time, Art. 1510 of the Civil Code of the Russian Federation allows for the registration of a collective trademark, denoting an association of legal entities and intended to designate goods produced or sold by them that have only one quality or other common characteristics.

Under the service mark according to Art. 1477 of the Civil Code of the Russian Federation is understood as a designation that serves to individualize the work performed by legal entities or individual entrepreneurs or the services they provide.

A commercial designation is understood as a means of individualizing trade, industrial and other enterprises as property complexes (Article 1538 of the Civil Code of the Russian Federation). However, the commercial designation should not be confused with the corporate name of the copyright holder. A commercial designation is not subject to mandatory inclusion in the constituent documents and the Unified state register legal entities.

A production secret (know-how) is information of any nature (production, technical, economic, organizational and others), including the results of intellectual activity in the scientific and technical field, as well as information about methods of carrying out professional activities that have valid or potential commercial value due to their unknownness to third parties, to which third parties do not have free access legally and in respect of which the owner of such information has introduced a trade secret regime (Article 1465 of the Civil Code of the Russian Federation).

As provided in Art. 1229 of the Civil Code of the Russian Federation, a citizen or legal entity that has an exclusive right to a result of intellectual activity or a means of individualization (right holder) has the right to use such a result or such a means at its own discretion in any way that does not contradict the law. Commercial concession is one such method. Under this agreement, rights to use inventions, utility models, industrial designs, computer programs, etc. can also be transferred.

A commercial concession agreement is consensual, compensated, and bilaterally binding.

2. As follows from paragraph 2 of the commented article, a commercial concession agreement transfers a set of rights, as well as the opportunity to use the business reputation of the copyright holder and his commercial experience. In this regard, the legislator provides that the contract must determine the minimum and/or maximum volume of such use, with or without indicating the territory of use. It should be noted that the rule on the territory of use has dispositive character, while the need to stipulate in the text of the contract the scope of use of rights is formulated imperatively.

The scope of business activity in which the use of exclusive rights and other objects transferred under the agreement will be carried out may be specified in the agreement if this is important for the parties.

Regarding business reputation, it should be noted that, being classified by law as a personal non-property benefit, it is inalienable and cannot be an independent subject of a commercial concession agreement.

3. Since a commercial concession takes place only in entrepreneurial activity, therefore, the parties to the agreement can be commercial organizations and individual entrepreneurs registered in the manner prescribed by law (clause 3 of the commented article).

A commercial organization is a legal entity pursuing profit as the main goal of its activity (Article 50 of the Civil Code of the Russian Federation). To the number commercial organizations include business partnerships, business societies, business partnerships, production cooperatives, state and municipal unitary enterprises.

4. As established in paragraph 4 of the commented article, the provisions of the Civil Code of the Russian Federation on a license agreement are applicable to a commercial concession agreement, if this does not contradict the essence of the commercial concession agreement. This means, for example, the need for a commercial concession agreement to indicate ways of using rights to protected objects, and the inadmissibility of including conditions on the use of objects on exclusive terms if such methods of use have already been the subject of similar license agreements.

5. Applicable law:

Federal Law of 08.08.2001 N 129-FZ “On state registration of legal entities and individual entrepreneurs”;

Federal Law of December 18, 2006 N 231-FZ "On the entry into force of part four of the Civil Code Russian Federation";

Order Federal service on intellectual property, patents and trademarks dated December 29, 2009 N 186;

Order of the Ministry of Education and Science of the Russian Federation dated October 29, 2008 N 321;

Judicial practice under Article 1027 of the Civil Code of the Russian Federation:

Decision of the Supreme Court: Determination N VAS-2549/11, Collegium for Administrative Legal Relations, supervision
The trading activities of the company in the Republic of Tatarstan using the trademark “Pyaterochka Plus” are subject to assessment according to the norms of the Civil Code of the Russian Federation, taking into account the fourth part of the Civil Code of the Russian Federation that has entered into force. Based on the fact that paragraph 1 of Article 1027 of the Civil Code of the Russian Federation has been changed slightly, and the wording of Article 1033 of the Civil Code of the Russian Federation has not been changed, the conclusions regarding these rules are applicable to the legal relations of the parties to the agreement in 2009, taking into account the following...
Decision of the Supreme Court: Determination N VAS-1260/12, Collegium for Civil Legal Relations, supervision
The defendant in the complaint points out that under a commercial concession agreement the rights to a company name must be transferred and without this condition it is invalid. According to Article 1027 of the Civil Code of the Russian Federation as amended in force at the time of conclusion of the agreement, the subject of a commercial concession agreement is to grant the user the right to use a set of exclusive rights, including the right to a company name...
Decision of the Supreme Court: Determination N 309-ES17-3250, Judicial Collegium for Economic Disputes, cassation
Accepting the disputed by the applicant judicial acts, the courts were guided by the provisions of Articles 421, 422, paragraph 1 of Article 432, paragraph 1 of Article 1102, Article 1103, paragraph 1 of Article 1027, Articles 1028, 1103 of the Civil Code of the Russian Federation and proceeded from the absence legal grounds to invalidate the contract...

+More...