Commercial franchising refers to the business activities in which an enterprise (hereinafter referred to as the franchisor) licenses its registered trademarks, enterprise logos, patents, proprietary technologies and other business resources to other operators (hereinafter referred to as the franchisee) in the form of contracts, and the franchisee conducts business under a unified business model according to the contract, and pays franchise fees to the franchisor.
Enterprise inquiry website: State Administration for Industry and Commerce-State Administration of Market Supervision
Extended data
Measures for the Administration of Commercial Franchise Filing
Article 1 In order to strengthen the management of commercial franchising activities and standardize the market order of franchising, these Measures are formulated in accordance with the relevant provisions of the Regulations on the Administration of Commercial Franchising (hereinafter referred to as the Regulations). ?
Article 2 These Measures shall apply to commercial franchise activities in People's Republic of China (PRC) (hereinafter referred to as China). ?
Article 3 The Ministry of Commerce and the competent commercial departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are the archival filing organs for commercial franchising. Engaged in commercial franchise activities within the scope of provinces, autonomous regions and municipalities directly under the central government, it shall be filed with the competent commercial department of the people's government of the province, autonomous region or municipality directly under the central government where the franchisor is located; Franchising activities across provinces, autonomous regions and municipalities directly under the Central Government shall be filed with the Ministry of Commerce. ?
Commercial franchising shall be filed on the national network. Franchisors who meet the requirements of the Regulations shall file records through the commercial franchise information management system established by the Ministry of Commerce in accordance with the provisions of these Measures. ?
Article 4? The Ministry of Commerce may, in accordance with relevant regulations, entrust the filing of commercial franchising across provinces, autonomous regions and municipalities directly under the Central Government to the competent commercial departments of the people's governments of relevant provinces, autonomous regions and municipalities directly under the Central Government. The entrusted commercial departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall complete the filing work on their own, and may not entrust any other organization or individual with filing. ?
If the entrusted commercial departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government fail to perform their filing duties according to law, the Ministry of Commerce may directly accept the franchisor's filing application. ?
Article 5 Any unit or individual has the right to report any violation of these Measures to the competent commerce department, which shall handle it according to law. ?
Article 6 A franchisor applying for filing shall submit the following materials to the filing authority:
(a) the basic situation of commercial franchising. ?
(2) Distribution of all franchisees in China. ?
(3) the franchisor's market plan. ?
(4) Business license or other qualification certificates of enterprise legal person. ?
(5) Registration certificates of business resources such as trademark rights and patent rights related to franchise activities. ?
(six) documents that meet the provisions of the second paragraph of Article 7 of the Regulations. ?
The provisions of the preceding paragraph shall not apply to franchisers who have engaged in franchising activities before May/KLOC-0, 2007 when submitting filing materials for applying for commercial franchising. ?
(7) The first franchise contract signed between China and the franchisee. ?
(8) A sample franchise contract. ?
(9) Catalogue of Franchise Operation Manual (the number of pages in each chapter and the total number of pages of the manual shall be indicated, and if such manual is provided on the internal network of the franchise system, the estimated number of printed pages shall be provided). ?
(ten) the products and services that must be approved by the laws and regulations of the state shall be submitted to the approval documents of the relevant competent departments. ?
A foreign-invested enterprise shall submit the approval certificate of the foreign-invested enterprise, and the business scope of the approval certificate of the foreign-invested enterprise shall include the project of "engaging in commercial activities by franchising". ?
(eleven) the franchisor's undertaking signed and sealed by the legal representative. ?
(twelve) other materials that should be submitted by the filing authority. ?
If the above-mentioned documents are formed outside People's Republic of China (PRC) and China, they must be notarized by the notary office of the host country (with Chinese translation attached), authenticated by the embassies and consulates of People's Republic of China (PRC) and China in the host country, or go through the authentication procedures stipulated in the relevant treaties concluded between People's Republic of China (PRC) and the host country. In Hongkong, Macao and Taiwan Province Province, the relevant certification procedures shall be fulfilled. ?
Article 7? The franchisor shall apply to the filing authority for filing within 15 days from the date of signing the franchise contract with the franchisee in China for the first time. ?
Article 8? Where the following archival filing information of the franchisor is changed, it shall apply to the archival filing authority for change within 30 days from the date of change:
(1) industrial and commercial registration information of the franchisor. ?
(2) Business resource information. ?
(3) Distribution of all franchisees in China. ?
Article 9 The franchisor shall report the franchise contract concluded, dissolved, terminated and renewed in the previous year to the filing authority before March 3 1 every year. ?
Article 10 A franchisor shall carefully fill in the information of all the items on record, and ensure that the contents filled in are true, accurate and complete.
Article 11 The filing organ shall, within 10 days from the date of receiving the documents and materials submitted by the franchisor that meet the requirements of Article 6 of these Measures, file them in the commercial franchise information management system and make an announcement. ?
If the documents and materials submitted by the franchisor are incomplete, the filing authority may require it to submit supplementary documents and materials within 7 days. The filing organ shall file the record within 10 days from the date when the franchisor's materials are complete. ?
Article 12 If a franchisor who has completed filing commits any of the following acts, the filing organ may cancel the filing and make an announcement in the commercial franchise information management system.
(1) The franchisor is cancelled by the industrial and commercial registration authority due to illegal business operation, or its business license is revoked by the registration authority. ?
(2) The filing organ has received a judicial recommendation from the judicial organ to cancel the filing due to the franchisor's illegal business operation.
(3) The franchisor conceals relevant information or provides false information, which has a significant impact. ?
(4) The franchisor applies for cancellation of filing and is approved by the filing authority. ?
(five) other circumstances that need to be revoked. ?
Article 13 The competent commercial departments of the people's governments of all provinces, autonomous regions and municipalities directly under the Central Government shall report the filing and cancellation to the Ministry of Commerce within 10 days. ?
Article 14 The archival filing organ shall record and preserve the archival filing information of the franchisor completely and accurately, and keep business secrets for the franchisor according to law. ?
The competent commercial department of the people's government where the franchisor is located (province, autonomous region, municipality directly under the Central Government or municipal level with districts) may issue a filing certificate to the franchisor who has passed the filing. ?
Fifteenth the public can query the following information through the commercial franchise information management system:
(1) The franchisor's enterprise name and the registered trademarks, enterprise logos, patents, proprietary technologies and other business resources used in the franchise business. ?
(2) The filing time of the franchisor. ?
(3) The address and contact information of the franchisor's legal business place and the name of its legal representative. ?
(4) Distribution of all franchisees in China. ?
Article 16 If the franchisor fails to handle the filing in accordance with the Regulations and these Measures, the competent commercial department at or above the municipal level with districts shall order it to handle it within a time limit and impose a fine of 65,438 yuan to 50,000 yuan; Failing to put on record within the time limit, a fine ranging from 50,000 yuan to 6,543.8+10,000 yuan shall be imposed, and an announcement shall be made. ?
Article 17 Where a franchisor violates the provisions of Article 9 of these Measures, the competent commercial department at or above the municipal level with districts shall order it to make corrections and may impose a fine of 1000 yuan; If the circumstances are serious, a fine ranging from 6,543,800 yuan to 50,000 yuan shall be imposed, and an announcement shall be made. ?
Eighteenth foreign franchisees engaged in franchise activities in China, in accordance with these measures. Franchisors from Hongkong, Macao Special Administrative Region and Taiwan Province Province shall refer to these measures. ?
Nineteenth relevant associations shall, in accordance with the provisions of these measures, strengthen industry self-discipline and guide franchisers to put on record according to law. ?
Article 20 The Ministry of Commerce shall be responsible for the interpretation of these Measures. ?
Article 21 These Measures shall come into force on February 1 day, 2065. The Measures for the Administration of Commercial Franchise Filing (OrderNo. 1 5, 2007 of the Ministry of Commerce) implemented on May12007 shall be abolished at the same time. ?
Processing basis
Regulations of the State Council Municipality on the Administration of Commercial Franchise (DecreeNo. 485th of the State Council)
2. Measures of the Ministry of Commerce for the Administration of Commercial Franchise Filing (Order No.5 of the Ministry of Commerce 20 1 1)
3. Notice of the Ministry of Commerce on Entrusting the Provincial Department of Commerce to Carry out the Filing Work of Commercial Franchise (Shang Shang Fa [2009] 186)
4. Notice of Shanghai Municipal Commission of Commerce on Filing Commercial Franchise (Shang Hu Commerce [2009] No.449)
Objects for filing: including registered companies in Shanghai that are registered within the administrative area of Shanghai and engaged in commercial franchise activities across provinces, autonomous regions and municipalities directly under the Central Government.
Time limit for processing: the qualified filing materials shall be filed within 10 working days from the date of receipt, and the franchisor shall be notified.
Submission of materials
Original and photocopy of business license and annual inspection certificate of Shanghai Company, or original and photocopy of other qualification certificates.
Shanghai foreign investment company shall also submit the original and photocopy of the approval certificate of the foreign investment company. If the registered items of the business license of a company registered in Shanghai change, it shall submit the certificate of change of industrial and commercial registration issued by the administrative department for industry and commerce.
2. The original and photocopy of the registration certificate of business resources such as trademark rights, enterprise marks, patent rights and proprietary technologies consistent with the franchise business of the company.
If the registered trademark, patent, enterprise logo, proprietary technology and other business resources have been accepted by the relevant departments, the original and photocopy of the acceptance notice shall be submitted; Where the registered trademarks, patents and other business resources are authorized by others, the original and photocopy of the legally binding authorization letter shall be submitted. For a registered trademark being accepted, the original and photocopy of the certification documents of business resources such as patents and copyrights shall be submitted at the same time. For the specific contents of the power of attorney, see the model text of the power of attorney (see annex for details); If it is purchased by the transferee, the certificate of approval of the transfer issued by the relevant state departments shall be submitted.
3. For products and services that can be franchised only after the approval of national laws and regulations, the original and photocopy of the approval documents of the relevant competent authorities shall be submitted;
4. The original and photocopy of the ID card of the legal representative of the registered company in Shanghai; If the legal representative is a resident of Hong Kong, Macao and Taiwan, a Hong Kong, Macao and Taiwan Pass shall be submitted; If the legal representative is a foreign citizen, the passport and translation of the legal representative shall be submitted (the translation shall be stamped with the official seal of a qualified translation company in Chinese mainland, and a copy of the business license of the translation company shall be attached).
5. If the company entrusts employees to handle filing, submit the original power of attorney (the power of attorney shall specify the client's name, ID number, entrusted matters and the validity period of the power of attorney, which shall be signed and sealed by the client) and the original and photocopy of the client's ID card; If the franchisor entrusts a service institution for the record, it shall also submit the original power of attorney, the original and photocopy of the qualification certificate of the entrusted service institution, the original and photocopy of the ID card of the designated contractor and the original letter of introduction from the legal service institution.
6. The franchisor engaged in franchising before May 1 2007 shall submit the original and photocopy of the franchise contract signed by the franchisor and the franchisee for the first time in this city; In case of franchising after May 1 2007, in addition to the original and photocopy of the franchise contract concluded for the first time, the franchisor shall also submit the original and photocopy of the supporting documents that meet the provisions of Article 7, paragraph 2, of the Regulations on Commercial Franchise;
7. Application for filing;
8. Contact form for filing of registered commercial franchise companies in Shanghai;
9. Distribution of registered commercial franchise companies' direct stores in Shanghai;
10. Distribution table of franchised stores of registered commercial franchisees in Shanghai;
1 1. Franchisor's market plan;
12. Letter of Commitment of the Franchisor signed and sealed by the legal representative;
Sample franchise contract; (online submission)
14. Franchise operation manual; (online submission)
operation sequence/order
The franchisor submits the filing paper materials to the acceptance window to obtain the login number and password of the commercial franchise management system.
After obtaining the login number and password, the franchisor logs into the commercial franchise information management system of the Ministry of Commerce, fills in the filing materials accurately and completely according to the requirements of the system, and notifies the window department after filling in. Electronic documents of relevant materials required to be submitted in the system need to upload the original scanned documents in PDF format.
The window department will send the paper materials to the audit department, and the audit department will audit the paper and filing materials of the franchisor on the system. The application materials that meet the requirements shall be put on record within 10 from the date of receipt, and shall be announced in the commercial franchise information management system, and a record certificate shall be issued to the franchisor. If the submitted application materials are incomplete, the applicant shall be required to make corrections within 7 days, put on record and announce within 10 days from the date of completion of correction, and issue a record certificate to the franchisor.
Franchise resources
The core of commercial franchising is the export of intangible assets, and commercial resources such as registered trademarks, corporate logos, patents and proprietary technologies constitute the main subject matter of franchise contracts. According to the guidance of Beijing Higher People's Court, commercial resources also include "trade names, trade secrets, the overall commercial image with a unique style, and unregistered trademarks that have been used in advance and have certain influence, which can form a certain market competitive advantage".
The export of intangible assets has special legal procedures. Article 3 1 of the Management Regulations stipulates that "trademark licensing and patent licensing in franchise activities shall be handled in accordance with the provisions of laws and administrative regulations on trademarks and patents". For example, if a registered trademark is involved, in accordance with the Trademark Law and other relevant provisions, a trademark license contract must be concluded to clarify the license type, and the trademark license contract must be reported to the Trademark Office for filing within three months after the contract is signed.
Whether the trademark licensing contract is filed or not has an important impact on the franchisee's exercise of legitimate rights and interests. According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes, unless otherwise agreed by the parties, if the trademark license contract is not filed, it will not affect the validity of the license contract, but it will not confront a bona fide third party.
The type of trademark license affects the franchisee's right to remedy the exclusive right to use a trademark. When the exclusive right to use a registered trademark is infringed, according to the above judicial interpretation of the Supreme People's Court: (1) If exclusive use is permitted, the franchisee may bring a lawsuit; (2) If it is an exclusive license, the licensee may file a lawsuit with the trademark registrant, or file a lawsuit on its own without the trademark registrant; (3) Where a general use license is granted, the franchisee may bring a lawsuit with the express authorization of the trademark registrant.
References:
The core of commercial franchising is the export of intangible assets, and commercial resources such as registered trademarks, corporate logos, patents and proprietary technologies constitute the main subject matter of franchise contracts. According to the guidance of Beijing Higher People's Court, commercial resources also include "trade names, trade secrets, the overall commercial image with a unique style, and unregistered trademarks that have been used in advance and have certain influence, which can form a certain market competitive advantage".
References:
Baidu Encyclopedia: Commercial Franchise State Administration of Market Supervision-Service