On Licensing Of Trade Name In Commercial Franchising

Since it is not clear whether the licensing of trade name is acceptable or not in the legal system of China,we have not made any rules to regulate the licensing of trade name,nor have we studied on it.However,licensing of trade name is an important part in franchising.Licensing of trade name have existed in the real life with the development of franchising in China, and there existed some disputes regarding licensing of trade name in the practice.As a result,it is very necessary and valuable to prove the feasibility of licensing of trade name and to set up the basal rules of licensing of trade name.This dissertation consists of three parts,the foreword,the body and the conclusion.In the foreword,I explained why I selected this subject and why I intended to discuss the licensing of trade name under franchising.I also introduced the structure of this dissertation and the limited researches that have been done on the subject by others.The body is divided into four chapters.In Chapter One,I defined two concepts involved in the dissertation,franchising and trade name,which are the foundation of my research.I generalized the legal characters of franchising by analyzing some universal definitions in the world.By analyzing the trade name-related concepts in the Chinese law,and comparatively studying on the meaning of trade name in the laws of some foreign countries,I defined the concept trade name under the legal system of China.In Chapter Two,I studied on the right of trade name,which is the foundation of licensing of trade name.I first introduced the basal rules applied when the commercial entities obtain the right on their trade name, as obtaining the right on a trade name is the premise of licensing.The legal nature of the right of trade name determines whether a trade name can be licensed or not.By analyzing comparatively the characters of the object of intellectual property and the characters of a trade name,I got the conclusion that the right of trade name is a kind of intellectual property, which overthrows the provisions of Chinese laws and justifies the licensing of trade name.In Chapter Three,I studied on the way of licensing of trade name,licensing contract.By analyzing some articles in Regulation on the Administration of Commercial Franchises and using some regulations on trademark licensing for reference,I clarified the special rules that are applied to a licensing contract and the legal effect of a licensing contract.In Chapter Four,I studied on apportion of external liability after licensing of trade name.Because of the licensing of trade name,the public may mistake the franchisee for the franchisor or a branch of the franchisor.So I mainly discussed the situation that the franchisor undertakes the external liability of the franchisee.After setting up the principle of "self-liability first, liability of franchisor second",I presented the factors that should be taken into consideration when determining whether the franchisor should be liable for the conducts of the franchisee,on the foundation of pointing out the deficiency of the existing theories.Finally,I detailed the situations that the franchisor should undertake the liability of the franchisee and the modality of liabilities under each situation.In the conclusion,I summarized the key opinions in the dissertation and pointed out some other research fields of the licensing of trade name.