China News Service, Chongqing, April 20 (Reporter Liu Xian) With the popularity of milk tea and other beverages, many people have the idea of opening franchise stores.
How to protect their legal rights after signing the franchise contract?
A typical case in the “2020 White Paper on the Status of Judicial Protection of Intellectual Property Rights” issued by the People’s Court of Chongqing Liangjiang New District (Free Trade Pilot Zone) on the 20th, clarified the issues related to unilateral termination rights in the “cooling-off period” in the franchise contract .
Fact: Joining "only yogurt cow" to open a shop fails to ask for a franchise fee
On June 26, 2019, the plaintiffs Liu Jiajia and Lei Cheng and the defendant Chongqing Green Ant Enterprise Management Consulting Co., Ltd. (hereinafter referred to as "Green Ant Company") signed the "Brand Development Contract", the main agreement: the plaintiff joined the defendant's "only yogurt" In the “Niu” catering project, the defendant provided operation guidance, management training and technical information transfer services for the plaintiff’s catering project; the plaintiff paid the defendant a technical information transfer fee of 24,500 yuan, a training fee of 8,750 yuan, and an operation guidance fee of 1,750 yuan, a total of 35,000 yuan; The cost of the project includes the theoretical and practical training of the catering service project, the guidance of the early operation, the later operation consulting and other services. Therefore, once the plaintiff receives the training materials or participates in the authorized training, it indicates that the defendant has performed the corresponding training for this purpose. For services, the plaintiff has obtained the defendant’s core secrets. Regardless of any circumstances that lead to the cancellation or termination of the contract, management training fees and technical information transfer fees will not be refunded, but the operating guidance fees can be based on the remaining period after the cancellation or termination and the contract period. The proportion is refunded; the contract is valid for one year, from June 26, 2019 to June 25, 2020.
On the day when the contract was signed, the plaintiff paid 35,000 yuan to the defendant by swiping his card.
The defendant provided the plaintiff with a "technical manual", which contained an introduction to the product catalog, job responsibilities, work process, and product formula table of the only yogurt cow (standard shop).
The defendant’s employees established a “only Hangzhou group”, and the plaintiff Liu Jiajia joined the group on the same day.
The WeChat chat records from June 26 to July 13, 2019 show that the plaintiff requested the defendant to choose a location. After that, the defendant continued to select shops for the plaintiff, but the plaintiff believed that the location was not good and the flow of people was not large. , The rent was too high, and the location of the shop was not determined, and the plaintiff did not open a “only yogurt cow” shop in Hangzhou, Zhejiang.
After the signing of the contract, the defendant did not participate in the plaintiff’s consultation on store opening operations, nor did he provide practical training and technical guidance to the plaintiff.
On July 11, 2019, Liu Jiajia mentioned in the group that the refund of the franchise fee was unsuccessful. On July 25, 2019, he filed a lawsuit to the court to terminate the contract involved and return the fees that have been paid.
Focus: The franchisee's unilateral right to rescind during the "cooling-off period"
The People’s Court of Chongqing Liangjiang New District (Pilot Free Trade Zone) held that once the contract stipulates that once the plaintiff receives the training materials, it indicates that the defendant has fulfilled the contract obligations, and the relevant fees paid by the plaintiff will not be refunded; the contract signed by the plaintiff is provided by the defendant , And the corresponding clauses were drafted by the defendant in advance, and the contract is a standard contract; the above clauses are obviously clauses that exempt or limit the defendant’s liability, and the defendant has not provided evidence that it has taken a reasonable method to draw the plaintiff’s attention to the clause, so the above clauses The content should be invalid.
Considering that although the defendant provided the plaintiff with a technical manual, it did not provide actual technical guidance and operational training to the plaintiff. The plaintiff failed to actually use the defendant’s operating resources, and the defendant’s operating interests would not be substantially affected by the termination of the contract involved. .
Therefore, the defendant should return the expenses paid by the defendant.
The judge explained that in economic life, franchising is increasingly engaged in chain, franchise, and cooperative operations.
The "Regulations on the Administration of Commercial Franchising" stipulates that the franchisee shall enjoy the unilateral right of termination during the "cooling-off period". This is because the franchisee is in an advantageous position in the franchise contract, and the franchisee may not have a sufficient understanding of the franchise industry From the perspective of protecting the interests of the franchisee, it is required that the franchisor should give the franchisee a certain period of time to consider whether to continue to engage in franchising, so as to buffer the investment impulse of the franchisee.
This is a statutory right granted to the franchisee by the law, and the franchisor cannot arbitrarily deprive it. Even if there is no agreement on the content in the franchise contract concluded by both parties, the franchisee can still request unilateral termination of the contract within a reasonable period of time.
The judgment of this case has certain positive significance for regulating the rights and obligations of the franchisor and the franchisee, and promoting the healthy and orderly development of the franchise business model.