ПРАВОВИЙ АНАЛІЗ ДОГОВОРУ ФРАНЧАЙЗИНГУ В СФЕРІ ІНТЕЛЕКТУАЛЬНОЇ ВЛАСНОСТІ

Abstract

Introduction. Despite the widespread franchising relations in the world, they still do not have sufficient legal regulation in the national legislation. This can be explained by the fact that franchising in Ukraine began to develop relatively recently, namely with the independence of our country in 1991. The regulatory legal act, which first enshrined the provisions of the franchise agreement, is the Civil Code of Ukraine, but it should be noted that the peculiarity of domestic legal regulation is the use of the category of "commercial concession agreement", which in essence fully corresponds to the franchise agreement. In this context, it is important to conduct a legal analysis of such an agreement and provide proposals for improving the national legislation in the field of regulation of franchising relations. Purpose. The purpose of the study is to conduct a legal analysis and develop proposals for improving the legal regulation of the franchise agreement at the legislative level, taking into account international experience that has already proven its effectiveness and can become the basis for developing amendments to the current legislation of Ukraine. Materials and methods. The materials of the study are: 1) regulatory and legal support of the peculiarities of the legal regulation of the franchise agreement; 2) works of domestic and foreign authors who conduct their scientific and practical research on the subject of the franchise agreement and its components, as well as analysis of proposals for the legal regulation of the franchise agreement. The methodological basis of the work is the following methods: in particular, in the process of studying the subject of the franchise agreement and its components, the methods of analysis and synthesis were used; the method of abstraction and generalization was used in defining the concept and legal nature of the franchise agreement; deduction method - in the development of some proposals for improving the current legislation of Ukraine in the field of legal regulation of the franchise agreement; comparative legal method was used in the process of studying the legal regulation of the franchise agreement in certain countries of the European Union; formal legal method - in the analysis of the norms of current and prospective legislation; system-functional method - in the study of the composition and forms of franchise relations, as well as the structure of the franchise agreement. Results. The process of formation of legal regulation of the franchise agreement in some countries is analyzed. A review of legislative acts was carried out and problems in the legal regulation and definition of the concepts of franchising and commercial concession were identified, and it was noted that differences in the interpretation of concepts in the course of entrepreneurial activity can lead to negative consequences in the form of litigation, loss of status of the organization, reduction of business development efficiency, financial costs, etc. The legal analysis of the transfer of rights under a franchise agreement to a commercial name and trademarks together with commercial information containing information about the experience of the right holder's business activity was carried out. Given the analysis of individual means of individualization of the right holder, attention is drawn to the fact that the individual terms of the commercial concession agreement include the term of its validity. Prospects. Based on the positive experience of the European Union Member States with regard to Ukraine's European integration policy, the author suggests that one of the possible proposals for improving national legislation on the legal regulation of the franchise agreement is the adoption of a separate regulatory act which would enshrine the specifics of legal relations under the commercial concession agreement, as well as revision of the provisions of the Civil and Commercial Codes of Ukraine relating to the legal regulation of pre- contractual liability and disclosure of information about the franchisor's activities. Taking into account Ukraine's choice of the European vector of development, it is proposed to replace the term "commercial concession" with the internationally recognized term "franchising" by amending Chapter 76 of the Civil Code of Ukraine, which, accordingly, should be renamed from "Commercial Concession" to "Franchising". Not only the name of the agreement itself, but also the names of its parties, the right holder and the user, which are currently defined by the current legislation, need to be changed. They should be changed to the franchisor and franchisee respectively, following the example of most foreign countries, including the member states of the European Union.