China Foreign Trade: "When children grow up, their biological parents can't help but give them away." What do you think you can learn from the children's biological parents and adopters?
Gui Qingkai: From the licensee's point of view, the word "decapitation" vividly describes the power of this kind of license. What lessons can the licensee learn from it? I think nothing more than the following points:
First, whether to choose this mode of operation must be cautious. Why waste energy, financial resources and intelligence to cultivate brands belonging to others? Before making a decision, we should fully estimate the feasibility and risk of this operation and learn from others' blood and tears.
Second, if enterprises simply analyze from the perspective of economics, it is difficult to build brands from scratch, and the possibility of success is very small, and they are more inclined to choose brands that have a certain reputation or potential cultivation ability to obtain licenses, they must carefully consider and agree on various arrangements after the expiration of the license contract, including the investment during the license period and how to calculate and compensate for the surge in brand value after the expiration of the license contract; More importantly, how to determine the priority of renewing the license contract after the expiration of the license contract and how to ensure that this priority is truly operational, that is, the priority can be realized realistically, and the agreement on the liability for breach of contract with reasonable operability and so on.
For the licensor, what should be paid full attention to is how to make agreements and arrangements for other intellectual property rights derived from the licensee's use of the licensed trademark during the licensing period, such as copyright, patent rights and other trademark rights, as well as the unique packaging, decoration or trade secrets of well-known goods. These are all important tools to ensure that the licensor can move forward smoothly on the shoulders of giants after recovering the licensed trademarks, and are necessary preparations to prevent future disputes.
What I said above is an ideal legal state, and both parties try their best to make an agreement on various possibilities. However, it is obvious that in the game process of real business operation, if the ideal state of legal agreement is required, the agreement may not be reached and many business activities cannot be carried out. For example, in this case, I always think that, from the common sense, Jiaduobao should not be unaware that if it produces and sells Wang Laoji in red cans and Wang Laoji in green Tetra Pak packaging, GPHL will definitely enjoy the benefits of fishermen and the strong advertising effect of Jiaduobao's "fear of getting angry and drinking Wang Laoji". However, why did Jiaduobao choose this red and green business model? It does not rule out the situation of "signing or leaving" when talking about permission. After analyzing the advantages and disadvantages from the perspective of profit-seeking, businessmen still choose the strategy of "* * *", and they can seek some compensation for the license fee. No matter what the future outcome is, if Jiaduobao finally loses more than it gains from the licensed Wang Laoji, it may not deviate from the original intention of the license. Many times, the success of future business and the scale of success are unpredictable when signing the contract. In particular, success depends on successful commercial operation after licensing and the introduction of excellent management talents.
In a word, if the ideal legal state in the eyes of legal person can be combined with the business operation mode in the eyes of businessmen, we don't require perfect combination, which is a huge advantage for commercial enterprises.
China Foreign Trade: Jiaduobao reserves the right of recourse to the value-added part of Wang Laoji brand. How do you think fairness is reflected in this?
Gui Qingkai: Regarding the basic license contract, if the contract expires without huge investment in commercial advertisements made by the licensee, and the value of the licensed trademark increases sharply, it is agreed on how to make arrangements and accounting. Can the licensor directly take back the licensed trademark? This may involve contract law issues such as consideration and whether it constitutes fair display.
In addition to unilateral contracts, for bilateral contracts, we considered the consideration when signing the contract. The law usually does not interfere with the disposal and arrangement of consideration by normal businessmen. If you voluntarily spend 100 yuan to buy goods with a value of only one yuan, the law will not interfere. However, if, like this case, Jiaduobao spent 1 100 million yuan to establish the first brand, the final contract was only handed over for free, and Jiaduobao only got the benefits during the licensing period; In addition to the expected license fee, GPHL also "unexpectedly" acquired a top commercial brand with priceless value. Is this just a normal business profit and loss, or is the content of the license contract already a question of display fairness? If it is to show fairness, there are also problems such as revocation of prescription. In addition, if it does not constitute a fair basic license contract, whether the agreement in Article 62 of the Contract Law is unclear is worth thinking and studying.
China's foreign trade: The effectiveness of the Supplementary Agreement on Trademark License signed by GPHL and Hongdao Group depends on whether Chen Hongdao of Hongdao Group paid bribes to Li Yimin. How to treat the effectiveness of the Supplementary Agreement on Trademark License signed by GPHL and Hongdao Group?
Gui Qingkai: Regarding the validity of the Supplementary Agreement on Wang Laoji Trademark License and the Supplementary Agreement on Wang Laoji Trademark License Contract signed by GPHL and Jiaduobao's parent company Hongdao (Group) Co., Ltd., the relationship between Li Yimin and Chen Hongdao's HK$ 3 million bribery case and the two supplementary agreements is an interesting legal game. Not every criminal case will inevitably lead to the invalidity of the corresponding civil contract. If the bribery of Jiaduobao is only an opportunity to renew the contract and does not involve the reduction of the contract price, then the contract should not be considered invalid. There seems to be such a problem in this case. The basic contract stipulates that Jiaduobao's priority renewal qualification under the same conditions should also be obtained without bribery. Bribery has actually achieved this qualification.
If bribery involves unreasonably low license fees, it may affect the effectiveness of the contract.
Therefore, when judging the influence of the bribery case on the supplementary agreement, Li Yimin's confession in the bribery case seems to be very important when Chen Hongdao cannot appear in court.
If Jiaduobao is given a very unreasonable low license fee on the grounds of bribery, it does involve whether the second item of Article 52 of the Contract Law should be applied: "Malicious collusion harms the interests of the state, the collective or the third party", and the contract is invalid. My understanding of this is that although the individuals who commit or are suspected of criminal offences are Li Yimin or Chen Hongdao, they may also be involved in corporate crimes, especially bribers. Article 52 Malicious collusion shall be that of both parties to the contract. If the unreasonably low license fee is the object of the transaction between the two parties, the actions of Li Yimin and Chen Hongdao can be regarded as collusion between the two parties, but how to identify "damage" and whether there is really damage. What is involved here is the basis for the approval of the license fee, whether it is based on the original basic license contract or on the fact that the value of this trademark has soared from 1995 to 2002 by Jiaduobao. If the license fee is determined according to the level at that time in 2002 and 2003, it is necessary to consider whether the priority renewal right is realized under the same conditions, or whether both parties know that the license fee is very low and Jiaduobao takes a great advantage.
The determination of invalid contracts should be strictly controlled. Overturning the existing trading order will have a large-scale chain reaction. Such as the validity and performance of various other contracts derived from invalid contracts. For example, on May 28th this year, GPHL held a press conference, thinking that the contract between GPHL and Jiaduobao would expire on 20 10. Since then, the income obtained by Jiaduobao in the name of Wang Laoji is illegal income, and it is planned to obtain a profit of 7.5 billion yuan as "illegal income" as the basis for the claim.
In most cases, invalid identification may not achieve the perfect combination of legal effect, economic effect and social effect. I used to think that only the courts in China paid attention to social and economic effects. Last year, I studied contract law at San Francisco Law School. I am surprised that American contract law also emphasizes the social value and effect of case judgment. As an important achievement of human spiritual civilization, law still has many characteristics in different jurisdictions.
China's foreign trade: The red cans launched by GPHL are very similar to those directly operated by Jiaduobao, and there is bound to be a conflict of intellectual property rights between the two red cans. As a professional intellectual property litigation lawyer, what do you think?
Gui Qingkai: This involves infringement of appearance patents or infringement of the unique decoration of well-known goods.
If Jiaduobao has an appearance patent, it seems that the time limit of 10 has passed. Thus, a new question arises, whether the design patent can be protected by the anti-unfair competition law after its expiration. This problem is worth studying. In the United States, patents belong to federal laws, and anti-unfair competition laws belong to state laws. Several famous cases prohibit expired patents from being protected by anti-law, which is considered to be contrary to the original legislative intention of the federal government to grant patent monopoly. However, this problem does not seem to exist in China. Some scholars and judges believe that if Jiaduobao's appearance right expires, it can claim rights based on the unique decoration of well-known goods, which of course requires a lot of proof fees.
It is worth studying what kind of rights the well-known advertising slogan "Fear of getting angry, drink Wang Laoji" has. Whether there is copyright or not can be said that different people have different opinions. The key is originality. Because the copyright law protects original intellectual achievements, if the advertising language is not original, it is certainly not protected by copyright. This is why not all advertising languages are protected by copyright law. From another point of view, "advertising language is independently completed by the author. Compared with other people's works, advertising language represents its own personality and characteristics and should be protected by copyright law. " Quite a few people think that this advertisement is too original and has no copyright. But without copyright, can other rights be protected? Otherwise,
Can "harmony with its meaning" be used on a large scale? "Fear of getting angry and drinking harmony with its meaning"