Franchising refers to the business activities in which the franchisor, through concluding a contract, permits the franchisee to use the registered trademarks, enterprise logos, patents, proprietary technologies and other business resources owned by the franchisor, and the franchisee conducts business under a unified business model according to the contract and pays the corresponding fees to the franchisor. The core of franchising is franchising, that is, the franchisee's right to engage in business activities by using intangible assets such as the franchisor's intellectual property rights and business model. Intellectual property rights are people's exclusive rights to the fruits of their intellectual labor and commercial marks.
The definition of these two rights shows that there are obvious differences between them. However, franchising, as a business model that franchisees combine their own intellectual capital with other people's monetary capital, expand in scale and at low cost, and improve brand influence, is bound to have a natural connection with intellectual property rights. Franchise is essentially a comprehensive right including intellectual property rights, and its core content is traditional intellectual property rights such as trademarks, trade names, patents, proprietary technologies, service marks and trade secrets. Therefore, it is of great significance for franchise development to explore the relationship between franchising and intellectual property rights for the protection of these two rights.
First, franchise and intellectual property are the same.
Franchise and intellectual property rights are two independent forms of rights, but both belong to the category of intangible property rights, which are important intangible property that enterprises can use for a long time,/have great review/collection/have excess profitability. Therefore, both franchise and intellectual property have some of the same attributes as intangible property.
1. The immateriality of an object
The object of franchising is whether the franchisee can obtain the franchisor's permission, use the franchisor's registered trademark, corporate logo, patents, proprietary technology and other business resources, and obtain the qualification to engage in corresponding business activities. The object of intellectual property rights is the result of intellectual activities of intellectual property owners. Therefore, the object of franchise and intellectual property rights has the characteristics of not occupying spatial position and not having material form.
2. Franchise and intellectual property have exclusive characteristics.
Franchisees in franchising have formed unique products or services through long-term efforts, and the trademarks, trade names, technologies and service marks formed on this basis have become invisible forces to attract consumers' consumption, and have also become the targets of peer competitors. Competitors hope to invest by themselves and gain the right to use important resources such as franchisees' trademarks, trade names, technologies, service marks and trade secrets. This demand has contributed to the emergence of franchising and the formation of franchising authorization system. Therefore, the core of franchising is the export of intangible assets. A franchisor often has a large number of franchisees, but the licensing right for franchisees can only be owned by the franchisor. It can also be said that the franchise can only be obtained by applying to the franchisor. In fact, intellectual property rights are the exclusive rights granted by law to the subjects of intellectual activities within a certain period and scope, so as to encourage inventions and promote social, economic and cultural progress.
3. Franchise and intellectual property have the characteristics of time limit.
Generally speaking, there is a question of the use period of franchise, and an important clause in the franchise contract is the use period of franchisee's franchise. The term of this franchise generally comes from the agreement of both parties. The term of intellectual property rights is a clever arrangement made by law to balance the personal interests and public interests of intellectual property owners. In this sense, the term of intellectual property is legal, but when the intellectual property owner exercises the licensing right, the term of the licensee is agreed by the parties.
Second, the difference between franchising and intellectual property rights.
Although franchising and intellectual property have some common attributes, as two forms of rights, their differences are still very obvious.
1. Different ways of generating rights
Franchising mainly comes from the contract between franchisor and franchisee, and it is a right based on agreed authorization. Intellectual property is a legal right, and the object and scope of authorization, the conditions and procedures of authorization are directly stipulated by law.
2. Different degrees of exclusivity
Franchising is based on the agreement between the franchisor and the franchisee, which determines that the franchisee's exercise of rights should be based on the prior agreement between the two parties, controlled by the franchisor, and pay franchise fees to the franchisor, and it is necessary to abide by various standards and modes of franchising. In particular, the franchisee's punishment of franchise rights will be strictly restricted. Intellectual property rights are the exclusive rights enjoyed by the obligee to the fruits of his intellectual activities according to law, and he can freely exercise all the powers conferred by law.
3. Different discipline requirements
The direct purpose of obtaining franchise is to make profits, so the qualifications of both franchisees and franchisees will be limited to a certain extent. Both parties should have the right and ability to engage in profit-making activities, such as natural persons without civil capacity, judges and civil servants who are not allowed to engage in profit-making activities according to law, and cannot obtain franchise rights to engage in franchise activities. Intellectual property rights are rights acquired through intellectual activities or distinctive signs. /There are many exams/collections/Therefore, generally speaking, the scope of intellectual property subjects is relatively wide and there are few restrictions. Natural persons without civil capacity, judges and civil servants who are not allowed to engage in profit-making activities according to law may become intellectual property rights holders if they meet the statutory conditions.
4. The specific direction of the object is different.
Although both franchise and intellectual property have immaterial characteristics of objects, their specific object positioning is different. The object of franchise is the "qualification" of franchise. The object of intellectual property is the spiritual product created by people in the fields of science, technology and culture.
5. The content of rights is different.
Franchising is rich and open. From the franchisor's point of view, franchising includes intellectual property rights, such as grant, idea and system arrangement, capital operation mode, management means, operation system, service mode of operators, etc. The content of intellectual property is legal and specific, including exclusive right, transfer right, license right, request protection right and so on.
6. There are differences in personal attributes
Franchise is a kind of right that directly points to the content of property, which is obtained based on authorization. It has nothing to do with people's spiritual activities, and it is a simple property right without the characteristics of personal attributes. The acquisition of intellectual property rights is closely related to people's spiritual activities and is an extension of personality. Therefore, intellectual property is a right with both personal rights and property rights.
Third, the relationship between franchise and the intellectual property rights it contains.
The history of franchising shows that franchising is closely related to intellectual property rights, and it lives and dies with the intellectual property rights contained in it, which complement each other.
1. Franchise and the intellectual property rights in it live and die together.
Franchising itself contains the franchisor's own intellectual property rights, which is the core content. From the beginning, the franchisor authorized and signed the franchise contract, and the license of intellectual property rights is the core part of its content. Franchising without intellectual property rights authorization is unthinkable and will not be franchising. It can be said that the franchise is born with the intellectual property rights it contains. From the franchisee's point of view, when the franchise right is lost, the franchisee's right to use intellectual property rights is also lost. From this perspective, when the franchise is lost, the right to use the corresponding intellectual property rights of others is also lost, and the franchise and intellectual property rights are dead.
2. Franchising and intellectual property complement each other.
The realization of franchising needs the help of intellectual property rights, and the economic benefits contained in franchising can be realized by using intellectual property rights. On the one hand, it can expand the market share of franchisees, enhance the brand influence, improve the competitive strength and realize the rapid expansion of enterprises at low cost. On the other hand, the franchisee can make use of the franchisor's intellectual property rights to achieve the ultimate goal of profiting from his own investment, thus saving himself the hard work of creating famous brands, developing technology and supporting business.
Rich intellectual property rights have made the franchise. Franchise contract is a so-called "package" agreement. In this agreement, many clauses are about intellectual property rights in franchising, such as: confidentiality clauses about trade secrets; The use of commodity names; The use of intellectual property rights such as trademarks. Without this content, there is no so-called franchise, and the franchise is empty.
Franchising is an effective way to spread intellectual property rights; At the same time, the realization of franchising needs the help of intellectual property rights, and the two complement each other.