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品牌授权注意法律事项

(2009-06-09 18:25:33)
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品牌授权

授权违约

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分类: 授权法苑
来源:中华授权网

  

The result of a material breach of the license by the licensee.

 

What is to become of any inventory of goods bearing the licensed mark when termination occurs? In general, the appropriate answer depends on the reason for the termination. If the termination was occasioned by the licensee’s failure to maintain proper quality, the licensor obviously should not allow sale of the inventory. Similarly, a licensee should not be permitted to utilize any packaging bearing improper trademark usage.

 

被许可方造成重大违约的后果。

 

协议终止后印有许可商标的库存货物将如何处理?一般来说,这取决于协议终止的原因。如因被许可方生产的产品质量不符合许可方的要求,而导致协议终止,许可方有权禁止被许可方出售存货。同样,被许可方也不得利用任何印有不当商标使用的包装。


 

In other cases, a licensee may be allowed a reasonable period of time to dispose of existing inventory. Such permission, however, should apply only to inventory kept in the ordinary course of business. This limitation is intended to forestall the tactics of certain licensees of questionable ethics and uncertain parentage that build up inventory in anticipation of termination.

 

此外,被许可方可获准在一定合理的期限内处理现有存货,但这种许可只适用于保持在正常经营过程中的库存。这一限制是为了避免某些道德操守或身份可疑的被许可方的市场策略,以促进库存处理的预期终止。

 

Somewhat counterintuitively, it also may be desirable to prevent a terminated licensee from dumping inventory at distress or unusually low prices, as this will adversely affect sales of other licensees and also may tarnish the licensed mark. Thus, permission should extend only to sales made at regular or preexisting price levels. In any event, it should be stated explicitly (generally in the section of the license devoted to calculation and payment of royalties) that royalties accrue on all sales made after the term or termination of the license, and that the licensee’s obligation to pay accrued royalties is continuing in nature and survives termination of the license.

 

防止被许可方在协议终止期限违反直觉地以极低的价格倾销存货也是必需的,低价倾销存货不仅对其他被许可方的销售不利,而且还会玷污许可商标的信誉。因此,只允许在正常的价格水平或既存的价格水平上做出的销售。被许可方应在任何情况下做出本期或协议终止后所有销售的累算许可使用费的明确说明(通常应在计算和支付许可使用费的条款中说明),被许可方的累算许可使用费的支付义务将一直持续到协议终止。

 

Indemnification

 

Consider a licensed product manufactured to standards set by the licensor, perhaps in accord with a design approved by the licensor. When sold, it bore the licensor’s mark. A consumer injured by a licensed product may assert (sometimes truthfully) that the product was purchased in reliance on the licensor’s good name and reputation and/or duty of supervision and quality control. Whatever the rationale employed by the (allegedly) injured consumer—or, more accurately, the consumer’s attorney—the fact of the matter is that the licensor almost always has a deeper pocket than does the licensee. Thus, it is highly likely that the trademark licensor will be a defendant in any product liability suit involving a licensed product. Proper indemnification is, therefore, extremely important. Indemnification, however, is worth no more than the indemnitor. The most carefully worded provision, reinforced by the best of intentions and goodwill, is still worth no more than the assets that back it. The prudent licensor also will require, from all but the most financially secure licensees, the provision of a suitable policy of product liability insurance, naming the licensor as an additional insured party.

 

赔偿
经评价,授权产品的制造符合许可方制定的标准,即与许可方核准的图纸相一致,出售时会印有许可方的商标。当消费者的利益受到许可商品的损害时会声称(有时是真实地认为)该产品的购买是由于对许可方的良好声誉、监督职责和质量控制的信赖。这一基本原理凡是用于受害的消费者——或者更准确的说是消费者的律师,事实几乎总是许可方比被许可方拥有更多的财富。在涉及授权产品的任何产品责任诉讼中,商标许可方极有可能成为被告。因此,适当的赔偿非常重要。

 

Enforcement

 

Because a trademark is imbued with public purpose—identification of source and indication of quality—the failure to enforce trademark rights is deemed, by the courts, to be an unacceptable breach of the owner’s duty. As a result, failure to police (lawyerspeak for “watch for unauthorized use of”) a mark and to take action against infringers is held to constitute abandonment of the mark.

 

To prevent such a loss, a trademark owner should, obviously, police the mark and take action against infringers. When a mark is licensed, the matter becomes somewhat more complex. Trademarks are similar to patents in that standing to sue for infringement rests with the owner of the mark (or, in the case of a patent, the owner of the patent), unless an exclusive license has been granted that conveys to the licensee “substantially all the indicia of ownership.” (This excludes licenses that, for example, are limited as to territory or to less than all goods covered by the licensed mark.) If such a license has been granted, it is the licensee that has standing to sue. A licensor, when granting an exclusive license, should provide for enforcement of the licensed mark(s) by the licensee. At a minimum, the license should provide that the licensee will join with the owner (at the owner’s expense) to take action against infringers.

 

A Couple of Parting Words

 

Trademark and service mark licensing can blend almost imperceptibly into franchising. Franchising, essentially, combines a trademark or service mark license with the provision of marketing or promotional assistance, controls over the business or manufacturing methods employed by the franchisee, and the payment of both initial fees and running royalties. Franchises are subject to regulation by the Federal Trade Commission (FTC) as well as 15 states, at least one of which (New York) imposes criminal sanctions for violations. If a proposed license exhibits—or might possibly exhibit—these (franchising) characteristics, seek legal counsel before proceeding.

 

In addition to concerns about possible franchising, trademark licensing may give rise to questions of possible violation of the antitrust laws, in particular the Sherman Act. Antitrust issues primarily arise when multiple trademark licenses are granted, each limited to a specific geo-graphic area (possible “horizontal market division”). Before embarking on a campaign of fancy trademark licensing, consult a professional.

 

Summary

 

Having the right to use a trademark on one product does not imply free rein to use the mark on other products. A licensor should make certain that a licensee’s proposed use will not infringe the rights of a third party; in order to protect the licensor itself, trademark licenses commonly provide that all use of the licensed mark shall inure to the benefit of the licensor.

 

Trademarks and service marks serve as indicators of quality, which means that a well-known and respected mark lends credibility to the licensee—and that credibility can be lost or tarnished if the licensee does not uphold the high standard of quality for which the mark is known. By law, trademark and service mark licenses, therefore, must include a quality control provision; a license without such a provision is called a “naked license.”

 

A mark is “blurred” when it is used in varied or altered forms, and this misuse can result in deterioration of the mark. Trademarks always must be used as adjectives; using them as nouns or verbs is an example of misuse that can lead to the mark becoming generic and, therefore, lost. The licensor should insist on the right to prior approval of all uses of the mark and also should make sure that its own copywriters and advertising department are using the mark correctly.

 

If a trademark or service mark license is terminated because of the licensee’s failure to maintain proper quality, the licensor should not allow the remaining marked inventory to be sold, which would further damage the mark. If the license simply reaches the end of its term, the licensee should be allowed to sell the remaining inventory—but not at deeply discounted prices that could tarnish the mark and adversely affect sales of licensed products by other licensees.

 

Proper indemnification protects the licensor from any suits brought by consumers who are injured by a licensed product, and is, thus, very important. However, any indemnification provision should be backed up by sufficient assets to reinforce it. Licensors should insist on a provision for a product liability insurance policy.

 

Since trademark and service mark licensing can strongly resemble franchising, competent legal counsel should be sought when any such license is proposed.

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