The unique shabu-shabu cooking method, coupled with the spicy taste of the dry saucer oil dish, makes the skewer incense burn from the Sichuan-Chongqing region to the north and south of the river, and also allows many people who want to start a business to see business opportunities.
Li Mou in the following case valued the market potential of small county liver string incense and wanted to join, but he was accidentally "pitted".
Case Review
Li was attracted by the investment advertisement of a certain company's "signed new small county liver string incense" project and wanted to join the cooperation.
After consultation, a certain company and Li signed a "Cooperation Agreement" on October 6, 2018, stipulating that Li would pay a cooperative operation fee of 59,800 yuan, a brand use fee of 20,000 yuan, a security deposit of 10,000 yuan, and a two-year management fee of 4,000 yuan to a certain company, and a certain company would license Li to use the brand cooperative operation right of "signing the new small county liver string incense" and provide Li with business technology, trade secrets, business training, business guidance, technical support and other services.
After the agreement was signed, Li paid a contract payment of 93,800 yuan to a certain company and actively prepared to open a store. However, in the process of preparing for the opening, the industry and commerce department informed Li that the trademark used by Li was complained about for infringement due to infringement, and li was required to remove the signboard and stop business for rectification.
After li mou verification, he found that a certain company did not have trademark rights to "sign the new small county liver string incense", and the current store could not be opened, and the loss was heavy, so it sued the Baiyun court.
Plaintiff Li mou claimed
A certain company signed a contract to authorize our trademark of "signing the new small county liver string incense on the top" as invalid, and a certain company was suspected of false authorization and even fraud, which led to the inability to achieve the purpose of the contract, causing serious losses to us.
We request the termination of the Cooperation Agreement, and a certain company receives the return of raw materials, returns related costs and compensates for losses.
The defendant argued with a company
We do not agree with the plaintiff's claims.
There is no fraud on our side, and the agreement signed by the two parties is legal and valid and should continue to be performed. "Signing the new small county liver string incense" did not infringe on the trademark rights of others, and it would not have any impact on Li's continued use of the trademark.
Court decisions
The Baiyun Court's first-instance judgment: The "Cooperation Agreement" signed between the plaintiff Li and the defendant company was terminated, and the defendant company returned the plaintiff Li's cooperative operation fee of 59,800 yuan, the brand use fee of 20,000 yuan, the security deposit of 10,000 yuan, the annual management fee of 4,000 yuan, the material payment of 124855 yuan, the compensation for economic losses of 23,813 yuan, the return of raw materials and the corresponding freight.
The defendant, a certain company, appealed, and the Guangzhou Intellectual Property Court rendered a second-instance judgment: the appeal was rejected and the original judgment was upheld.
Reason for trial
According to Article 3 of the Regulations on the Administration of Commercial Franchising, the basic feature of commercial franchising is that the franchiser permits the franchisee to use the business resources it has, and the franchisee carries out operations under the business model agreed in the contract and pays the franchise fee to the franchiser.
Judging from the content of the "Cooperation Agreement" signed between the plaintiff and the defendant, the defendant authorized the plaintiff to operate the logo of "signing the new small county liver string incense on the agreed scope", and had the right to guide the plaintiff in business technology, trade secrets, business training, business guidance, technical support, etc., and the plaintiff had the right to use the brand of "signing the new small county liver string incense on the top" and had the responsibility to assist in maintaining the brand image of the defendant company, and the above contract terms were in line with the legal characteristics of the franchise, so the contract involved in the case belonged to the franchise contract.
The Regulations on the Administration of Commercial Franchising stipulate that the franchiser has the obligation to disclose information truthfully, accurately and comprehensively, and the franchisor shall not deceive or mislead in the promotion and publicity activities, and shall not have the content of publicizing the proceeds of the franchisee's franchise activities.
In this case, according to the contract and the provisions of the "Trademark Use Authorization Letter", the trademark authorized by the defendant to the plaintiff was "on the sign of the new small county liver string", and after verification, the defendant did not have the trademark right to the above-mentioned "new small county liver string on the sign", and its authorized trademark was "on the sign of the steel pipe factory small county liver string incense" according to the trademark No. 26788496 of the query, and the trademark was invalid. The defendant also confirmed the fact that the plaintiff was told by industry and commerce not to use the logo to open a shop because it did not obtain the trademark of "New School Small County Liver String Incense Sticks Signed on the Top".
Therefore, the defendant did not truthfully and accurately disclose the situation of its concessionary resources, resulting in the plaintiff's inability to operate normally, and the defendant's behavior constituted a breach of contract. At present, the plaintiff's request to terminate the "Cooperation Agreement" involved in the case has a legal basis and should be supported.
Since the liability for breach of contract that cannot continue to be performed lies with the defendant, the plaintiff now requires the defendant to receive the returned raw materials, bear the corresponding transportation costs, and refund the raw materials, return the cooperative operation fee, brand use fee, security deposit, annual management fee, combined with the performance of the original and defendants on the contract involved in the case, the plaintiff's above request is reasonable and legal, and should be supported.
The defendant's breach of contract led to the inability of the two parties to use the brand of "new small county liver skewers signed on the upper side", and the plaintiff demanded that the defendant compensate for the decoration costs and advertising costs paid for the opening of the store, which was reasonable and legal and should be supported.
Source: Guangzhou Baiyun District People's Court