СТА - ведущая юридическая компания в Дубае с офисами по всему мируhttps://www.stalawfirm.com/ru.htmlSTA Law Firm - Блоги - Franchising in Dubai ruCopyright 2024 STA Law Firm All Rights Reserved<![CDATA[Economic and Fraud Provisions in Middle East]]> Economic and Fraud Provisions in the Middle East

"There is one and only one social responsibility of business – to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud."

- Milton Friedman

Economic fraud is a term that has been repeated over the years, so much so that the consequences it bears do not have any precedence or impact on the ones that hear it. For many companies and capitalist machinery, this term essentially triggers them to explore options to hide their fraudulent tracks and continue operating in the same manner. To have governments help them cover the tracks in certain jurisdictions ultimately defeats the purpose of the assignment.

Despite the incongruent activities of individuals, companies, and governments from the expected norm of justice in many jurisdictions, other countries are tenacious to implement a regulatory framework that will eradicate such fraudulent activities in the market. This article will discuss the economic and fraud provisions established in the Middle East, their effectiveness, and the scope of reach it possesses about financial crime.

What are the Economic and Fraud provisions in the Middle East?

If one area of the economy has seen a steady increase in the past years, it would be the economic fraud prevalent in society. Regardless of the number of provisions that jurisdictions and international organizations establish to combat financial fraud, none of them seems sufficient. The parties involved in economic fraud and other fraudulent practices are constantly evolving to cover their tracks efficiently.

Infamous scandals like Bernie Madoff and the Ponzi scheme leave one in absolute awe as it remains unclear, what is the culprit: the crime or the criminal? Many innocent parties, including employees and clients, were adversely affected by the ill-doings of these financial schemes. After the outburst of many scandals and its impact on many innocent individuals, jurisdictions are trying to fasten their pace to stay a step ahead of wrongdoers and hopefully eliminate the potential threats in the market.

The introduction of new anti-economic fraud regulations has paved the way for potential investors to feel a sense of security over their investments within the market, along with the ability of the regulations to enforce justice. Over time, people have understood that the formation and establishment of an anti-fraud legal framework are not sufficient to ensure peace and harmony in the market, an iron fist must be imposed on fraudulent parties and companies to deter them from doing such activities in the future and serving it as a lesson for other participants in the market who bear similar intentions.

The types of economic fraud can be quite varied and are spread across different industries and the scope of nature. These could include housing benefit fraud, tenancy fraud, council tax fraud, blue badge fraud, social care fraud, business rates fraud, insurance fraud, bribery, and money laundering. These are just a top layer of economic crimes prevalent in an ocean of fraudulent activities in the market. The crimes that are more coherent to the wrongdoings in the market include not declaring the business location, stating that a property is not in use while it is, dishonestly requesting for an exemption to pay for charges that are owed, or any unauthorized movement of money to make ill-gains.

Often, economic crime is caused not by companies but by customers towards companies. The highest reported crime boost in the Middle East is through customer fraud and procurement fraud, which have proved to be the most disruptive fraud within an economic crime. In a survey conducted on a global platform, the number of customer frauds was comparatively more in the Middle Eastern region.

In an ongoing effort to combat fraud together, many companies in the Middle East began investing in more stringent controls and implementation of the rules to avoid economic crime, while many others conducted a thorough examination into reasons after the occurrence of a crime in the company. Another issue that stands alongside customer fraud about its prominence is procurement fraud. This fraud entails the practice of favoring associates with vendor and supplier contracts.

All these efforts are measures taken to mitigate the risks involved and ensure that proper prevention is taken by instilling the right technology and talent to deviate from any fraudulent prone routes.

However, it is not easy to ensure that accountability will be maintained and transparent feedback is provided. Another limitation of this procedure is that advanced technologies to combat financial crime can be costly, which would further deplete if the company possesses insufficient resources to acquire and install the platform and is not equipped with properly trained employees to manage the technology. The lack of proper expertise to handle the in-place technology could attract various cyber threats, which allows a wrongdoer from any part of the world to infiltrate the company's system.

With this in mind, companies must equip themselves from the arsenal of defenses to protect themself and the financial and reputational facets of the company. The extent of damage that infiltration of the company's system can cause to the operations is quite unfathomable. It would be better for companies to leave their vault of secrets wide open than installing an IT platform that is managed poorly. The necessity of combating such insecurities is proliferating and must be countered at the earliest. One would like to believe that the efforts of the legal jurisdictions in the Middle East to battle economic crime are practical and promptly applied. However, many of the jurisdictions still fail to provide a proper implementation of the provisions established against economic crime.

The readiness of companies in the Middle East to confront the indecisive nature of economic crime and report any issues as they arise is still moving at a stagnant rate. The stark increase in cyberattacks and its potential threats is not a mystery to the companies in these regions. Nevertheless, they decide against preparing themselves in defense of such risks and attacks. The firms in the region and the governmental organizations must understand the types of threats that could arise in the economy and the nature of such economic crimes. Although this would seem like an insignificant step, this particular action could help achieve a more profound revelation of the gaps and vulnerabilities of the economy and its protective framework.

Many would argue that the relationship of the Middle East with economic crime and fraud dates back ages. All the glitz and glamour and the boom of economies are incongruent with the fraudulent activities occurring within the firms and regions. A region's legal systems cannot enforce the regulatory frameworks established to fight against economic crime if the country's government does not implement the rulings.

To know more about Economic and Fraud Provisions in the Middle East in Singapore Click here 

 

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Thu, 30 Sep 2021 14:28:00 GMT
<![CDATA[Unveiling Dubai Expo 2020]]> Unveiling Dubai Expo 2020

 

Introduction to Expo 2020

 "Our region deserves the chance to organize this great world exhibition. Our country is ready to host it. We will keep our promise in connecting great minds to build a better future and we will organize the best event in the history of the World Expo." – HE Sheikh Mohammed bin Rashid Al Maktoum

Prior to the Expo 2020 vote being declared, some extremely memorable quotes rightly captured the quintessence of Dubai's bid. Consequently, the Bureau International des Expositions (BIE) in its general assembly hosted on 27 November 2013 awarded Dubai as the host of Expo 2020. The Director of Global Foresight and Innovation at Arup, Chris Luebkeman, rightly stated that "seven years is a short time but I can't imagine a better place to make that drive real."

Being the first World Expo to be held in the region starting from the 20th of October, 2020, the United Arab Emirates (UAE) is welcoming the world for six months to celebrate culture, innovation and collaboration whilst aiming to leave a lasting and meaningful legacy. The mammoth trade fair shall be open for business against the backdrop of the scintillating skyscrapers and supermalls that Dubai is irrefutably renowned for. The Expo 2020 will be the largest event that has ever been staged in the Arab world and is set to welcome approximately 190 participant countries.

It is pertinent to note that each World Expo held till date is based on a theme. For example, "Feeding the Planet, Energy of Life" was the theme of Milan Expo 2015; "Man and His World" was the theme of Montreal Expo 67. The theme chosen by Dubai for the Expo 2020 is "Connecting Minds, Creating the Future." Under this theme, millions of visitors from across the globe will experience hospitality at its finest, as well as the UAE's values of tolerance, cooperation and inclusion. Through this theme, Expo 2020 envisions to build partnerships as well as inspire ideas that forge the world of tomorrow. There are subthemes which form the key pillars:

  • Opportunity: Dubai, through the theme of Expo 2020, firmly believes that we possess the power to shape our future. Therefore, Expo 2020's goal is to unlock this potential in various ways, including supporting solutions to an array of social problems through Expo's Live Programme, as well as introducing the visitors to new ideas to inspire them to act.
  • Mobility: Indubitably, with the smarter movement of ideas, goods and knowledge, a whole new world of prospects and possibility unfolds. The Expo 2020 enlightens how this has assisted us to venture new frontiers, and how humanity is continually making grander leaps than ever through digital connectivity.
  • Sustainability: There is a growing need to live in balance with the world that we inhabit. The Expo 2020 embraces alternative sources of water, food and renewable energy, whilst emboldening us to reevaluate the ways in which we can preserve the planet.
  • Why is the World Expo important?

    Notably, the World Expo is a global destination for people from across the world to share their ideas, encourage collaboration, showcase innovation and rejoice human ingenuity. Some of the most dynamic inventions that were brought first to this world at an expo include the typewriter in Expo 1876 held in Philadelphia, the telegraph in Expo 1851 in  London, the diesel engine in Expo 1900 in Paris, etc. Most recently, inventions like solar trees as well as energy-saving elevators were showcased in Expo 2015 in Milan. Therefore, being the largest global gathering, the World Expo brings together the greatest mind from across the world to discuss how we can all shape the future, which is the very theme for Dubai Expo 2020. Below, we shall explore how World Expo will be beneficial for Dubai.

    Benefits of Dubai Expo 2020

    There are a number of changes that have been put in place to essentially embrace this event which includes new visa rules, infrastructure, business incentives, as well as various economy-boosting measures. Ever since the announcement of Dubai to hold the Expo 2020, there has been an exponential rise in the business setup in Dubai as well as company formation in the UAE. Further, Dubai's strategic location between the developing and developed nations is an advantage in regard to wider influx of expected visitors, not only during but also after the event. Let us explore how Expo 2020 boosts diverse industries in Dubai.

    Hospitality, Tourism and Leisure

    There is not even an iota of doubt that the event will have a noteworthy impact on these industries. Dubai is expected to host over 170 million visitors from across the globe. While Dubai has an array of different ranges of hotels to suit every visitor's convenience, the Emirate has witnessed the construction of various high rises which further indicates the creation of jobs. Amongst various researches and surveys, Dubai is expected to receive over USD 60 billion worth of purchases, most of which includes the culinary sector; which has resulted in investors establishing various retail restaurants and chains in the region.

    Construction and Real Estate Industry

    In addition to the residents that Dubai already births, the construction industry has seen a rise in demand in the number of properties to meet the needs of the expected visitors. Further, for the construction and infrastructure alone, the government has awarded contracts up to a tune of AED 12 billion. Incentive offering, guaranteed periods of rental income as well as lower service charge has encouraged potential buyers to invest in Dubai.

    Aviation and Transport

    A sum of approximately AED 28.6 billion has been apportioned by the UAE government for the expansion of DXB (Dubai International Airport). Furthermore, the Road and Transports Authority (RTA) has also invested an estimated USD 1.36 billion for the expansion of Dubai's Metro Red Line.

    Financial Services Industry

    The banking sector resourcefully supports the UAE well and additionally, is positioned and prepared for the anticipated visit. The UAE's Central Bank's tailored approach to Expo 2020 has put in place flexible regulations to assist the fiscal stability of investors who, in the wake of upcoming Expo 2020, are already tapping into an array of opportunities presented. For example, the combat on large financial exposure as well as the mortgage cap which has been introduced, curbs all forms of excessive spend. There various European and United States banks that have set up branches in the UAE.

    Residency Rules

    The government's introduction of the long term residency visa is a step towards ensuring the tourists who are interested in UAE residency are able to process the same at ease, before as well as after the event. There have been a plethora of professionals and entrepreneurs enquiring with STA's immigration lawyers in the UAE with regards to the possibility of obtaining the long term visa for their intended service sector. Further, the substantial turnaround in all the industries has been brimming with job opportunities in the UAE, especially in the construction, hospitality and the real estate sector.

    Legal Advisory Services

    Considering the rise in investments in the region since the Expo win, there is consequently a high demand for legal advisory services to secure oneself from business pitfalls. As one of the leading law firm in Dubai, we receive countless enquiries with regards to laws, rules and regulations which applies to individual entrepreneurs that earn large, medium as well as small enterprises. Furthermore, our lawyers in Dubai guide the clients against future disputes that a prudent businessman should understand at length, whilst carrying out comprehensive due diligence prior to committing to a transaction.

    Media

    Dubai Expo 2020 Bureau along with the Telecommunications Regulatory Authority (RTA) have mutually agreed to enhance the cooperation in various areas including organizing the use of Information and Communications Technology (ICT) systems and devices, coupled with the encouraging the participation of government entities in all programs that are launched by the center to host the Dubai Expo 2020. It is essential that these parties enhance their cooperation to ensure coordination with all authorized media entities in the Expo, essentially to identify the frequency requirements of the local and international media agencies that are participating in the exhibition, as well as to keep in place a mechanism for the submission of forms and applications for spectrum permits. Furthermore, it would also result in the cooperation of customs clearance to make sure the entry of all devices to the UAE is in the appropriate manner.

    Brand Protection Guidelines

    There is no doubt that entities and individuals in the UAE and across the globe would be eager to use the intellectual properties of Dubai Expo 2020 in order to boost their business activities by linking their services and products to Expo, consequently raising their own profile in the process.

    For the Expo's commercial partners, the apex beneficial asset is the intellectual property of Expo 2020 including the brand. Apart from the participant countries, below is the list of commercial partners that will be authorized to associate themselves with Dubai Expo 2020:

    • Official Partners;
    • Official Premier Partners;
    • Official Ticket Resellers;
    • Official Supporters like the government agencies who have signed a contract with the event;
    • Official Licensees and Retailers;
    • Official Providers; and
    • Official Media Partners.

    Why is it necessary to protect the brand?

    Without the financial support of various official partnerships, the Expo 2020 would not have been possible. The official partnerships are substantially devalued when businesses without the authority link themselves to the Expo 2020. These partnerships upon signing agreements with Dubai Expo 2020 commit to supporting and believing in the values that are embedded in the core of the brand, whilst working to bring Expo's vision, values and ideals to life.

    Ambush Marketing

    The act of creating a deceiving, authorized or false association with an event, with or without the intention, is referred to as ambush marketing. As an illustration, if a particular website uses the logo of Expo 2020 to enhance their services or products, it unjustifiably benefits from such association without actually paying for the privilege. This is ambush marketing. As another example, consider this situation: Supposedly the official media broadcast right is given to XYZ Media Company, though another Media Company ABC puts up billboards and advertisements outside the venue of the event; it is likely that a person would directly relate ABC to the event, even though XYZ is the official partner, thereby increasing the viewership of ABC where it enriches unethically. Hence, the Expo Brand Team is vigorously engaged in numerous monitoring activities in order to combat and prevent ambush marketing, and have asked the public to report any illegal or suspicious activity. Our media lawyers in the UAE are actively engaged in assisting client who is victims of ambush marketing and are glad to provide further tidings on the same.

    The Expo 2020 allows the editorial use of its protected marks. For example, when journalists provide more information or reports about the events in an article; on the condition that the statements are factual statements that are not made gratuitously for the purpose of marketing or linking to the commercial entity.

    Tawassul

    Tawassul, which means 'connect' in Arabic, is the operational tool that connects various media organizations to important updates and information on elements including licenses and permits, media accreditation, content assets like photographs, press releases, audio and video, electronic media kit etc. The Global Media Briefing is set to take place from the 20th to 22nd of October 2019, which is open to all genuine media organizations that wish to cover Expo 2020 to submit their interest through Media Accreditation Expression of Interest (Tawassul). This opens a window for all media organisations to receive a technical briefing to understand Expo 2020's plan for media to attend as well as cover the event.

    Conclusion

    Most certainly, Expo 2020 will cement Dubai's reputation and status as the epitome of business hubs in the world. Staging such a mega event as the World Expo has most definitely boosted the international profiles and economies of its host cities for over decades; and soon, it is Dubai's chance to step into the spotlight. When highlighting what the legacy of the event will be, it is pertinent to note that more than 80 per cent of the venue is premeditated in a way which can be repurposed and reused in the legacy phase.

     

     

     

     

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    Thu, 03 Oct 2019 17:42:00 GMT
    <![CDATA[Agency Laws in the GCC Countries ]]> AGENCY LAWS IN THE GCC COUNTRIES

    Introduction

    The extension of the multinational partnership is either setting up its subsidiary in remote purview or to tie up with the local organization in a foreign jurisdiction. United Arab Emirates (UAE) is one of the distant locals where international organizations are going into office concurrences with the Emirate nationals keeping in mind the end goal to grow their business in the UAE since the UAE being a well networked international port. A global entity wishing to set up a company offshore with cost-effective investment UAE is a standout amongst the most advantageous alternative where the foreign companies either enters into distribution agreement or makes an arrangement with the commercial agencies to expand their business with the locals. The UAE Agency Law manages these commercial agencies and distribution agreement in the UAE according to amended Federal Law 18 of 1981usually known as Agency laws. Federal Law 13 of 2006concerning agency law was revised and revoked in 2010. However, the Federal law 18 of 1981 was a reestablishment.

     

    The Emirate of Abu Dhabi established Federal Law Number 11 of 1973which centers around the task and control of business office exercises. This arrangement of Federal Law Number 11 of 1973had constrained the foreign business in Abu Dhabi and had created various challenges for the government about essential regulation carried out for commercial activities additionally talked about in this guide.

     

    These agency agreements have a positive effect on UAE's economy since there is an increment in Foreign Direct Investment (FDI). Indeed, even the previous Ministry of Economy SheikhaLubna Al Qasimi states that "The new revisions will certainly boost the financial market in the UAE. This law declared out of the longing to improve and keep up steadiness in costs and guarantee that organizations are not controlled to expand costs." Furthermore, the administration of UAE His Highness Sheik Khalifa bin Zayed Al Nahyan, President of the UAE and His Highness Sheik Mohammed receptacle Rashid Al Maktoum, Vice President and Prime Minister of Dubai, they all are resolved to offer help for the development of the economy in the UAE.

    STA Law Firm house one of the leading corporate attorneys in the entire of UAE. We believe that commercial agency laws for the protection of local agents from the termination of agency agreements by the foreign entity without any legitimate reasoning. Besides, the comparative study of agency laws has been done between UAE, Oman, Kuwait, Bahrain and Saudi Arabia.

    CONTENTS

    1.Agency Laws in United Arab Emirates

    1.1Definition 

    1.2Types of Agencies

    1.3Sham Agency Registration

    1.4Termination of Sham Agency Agreement

    1.5Termination of Agency Agreement

    1.6UAE Court's jurisdiction in Commercial Agency Agreement

    1.7Commercial Agency Committee

    1.8Arbitration in the UAE

    1.9Penalties

    1.10Agency Laws in Abu Dhabi

    2.Commercial Agency Laws in Oman

    2.1Introduction

    2.2Definition

    2.3Registration of Agency Agreement

    2.4Kinds of Agency Agreement

    2.5Ownership

    2.6Termination of Agency Agreement

    3.Commercial Agency Laws in Kuwait

    4.Commercial Agency Laws in Bahrain

    4.1Introduction

    4.2Definition

    4.3Ownership

    4.4Exclusivity

    4.5Termination of Agency Agreement

    4.6Penalties

    5.Commercial Agency Laws in Saudi Arabia

    5.1Introduction

    5.2Definition

    5.3Features of Agency Law

    5.4Ownership

    5.5Commission

    5.6Choice of law and Jurisdiction

    5.7Termination of Agency Agreement

    6.Conclusion

    7.References

    Overview

    The definition of commercial agency law as per Federal Law Number 18 of 1981(the UAE Agency Law) 'any disposition whereby an international company is represented by an agent to allocate, vend, tender goods or services within the UAE for a charge or profit.'  The rights of the Emirate agents are only protected under Federal law 18 of 1981(UAE Agency Law)if the registration of agency agreement with the UAE Ministry of Economy. Unregistered agreements do not render the rights of Emirate agents or protect them from the termination of agency agreement by the foreign principal under UAE Agency Law. Additionally, UAE commercial agent should hold a valid and appropriate license in each Emirate along with enrolment with the Chamber of Commerce in each relevant Emirate.  Article 4of the UAE Agency law (Federal law 18 of 1981as amended) states that there should be a straight connection between a UAE commercial agent and the foreign principal without any interference by the regional or multi-country sales agent. On the other hand, Article 5of the UAE Agency Law (Federal Law 18 of 1981as amended) states that ' A qualified commercial agent will be regarded selective in its domain, however, enables an international organization to delegate a different commercial agent for every emirate.' The Federal Act, 1981defines Commercial Agency as 'the representation of the principal by an agent for distribution, sale, display or provision of any commodity or service within the state (the UAE) in consideration of any commission or profit.' Here the word principal includes the manufacturer, whether based in the UAE or overseas. A common phenomenon observed in all the GCC countries is that if there is no registration of commercial agency agreement, then it will not be recognized by the courts or an agent will not have solid ground to defend himself from the termination of an agency agreement.  Therefore, commonly tan here are two types of agency agreements such as:

    I.    Registered agency agreements-  an agent can register commercial agency agreement before the Commercial Agency Registrar to protect themselves from an illegal termination of an agency agreement.

    II.    Unregistered agency agreements-  an agent enters into an agency agreement with the foreign private entity without registering the agreement with Commercial Agency Registrar then it is recognized as unrecorded agency agreement. Most of the courts in the GCC countries do not recognize or can protect a local agent from an invalid termination of an agency agreement. 

    AGENCY LAWS IN ABU DHABI

    The Emirate of Abu Dhabi enacted Abu Dhabi Law Number 17of 1969which states that "no person is permitted to conduct any commercial activity before obtaining a license by the commercial License Law of 1969." This provision of law had created commotion in the commercial market which limited the Foreign Direct Investment in Abu Dhabi. Therefore, Abu Dhabi Law Number 11 of 1973repeals Abu Dhabi Law Number 17 of 1969 which encourages Foreign Direct Investment as it focuses on operation and regulation of commercial agency activities. In Abu Dhabi, a business agent does not have exclusive rights over the products of the foreign entity once they enter commercial agency agreement as an agent is a mediator. An agent is a mediator for foreign companies to set up their business in Abu Dhabi because without an agent a foreign corporation cannot expand their business in the UAE.

    According to Abu Dhabi Law Number 11 of 1973it is not explicitly mentioned that registered or qualified agent would be protected under a specific provision if the foreign entity terminates agency agreement without any valid reasoning.

    Furthermore, in other jurisdictions of the GCC countries, qualified agents are protected under their specific agency laws if the registration is agency agreement is carried out before the Commercial Agency Registrar. This guide entails in detail about agency laws in the GCC. Click here to read more.

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    Thu, 14 Jun 2018 15:28:00 GMT
    <![CDATA[Intellectual Property and Food]]>  

    Introduction

    The definition of Food security is "the state of having reliable access to a sufficient quantity of affordable, nutritious food." Globally the insufficiency of food security of developing and least developed States is a concern not only of governments but also all individuals within the states. In many, if not all countries in the world, access to food, water and shelter constitutes a fundamental human right. There is a connection between the state of a countries food security and its agriculture policies, its trade policies, and its economic development. These aspects are at the forefront of how food security and intellectual property rights (IPR) coincide. The extension of IPR to the agriculture sector is due to a global drive towards sustainable agriculture and striving for the most efficient, profitable and manageable agricultural industry. The food security of a country is a direct reflection on its agrarian capabilities first and foremostly, followed by its trade abilities and economic development. Introducing ITP in agriculture ensures that states with the most advanced agricultural innovations and growth strategies will remain ahead not only insufficient food security but also in trade successes.

     

    It is understandable that the strengthening of IPR is the food sector has the possibility of being detrimental to developing and least-developed states. Ultimately, the introduction of IPR in agriculture has the aim of achieving economic benefits for agricultural cultivators helping to aid in ensuring sufficient food security globally. The World Trade Organization has, in the WTO Agreements, introduced IPRs into the agricultural sector of developing and least-developed member states to provide an added economic beneficial factor to agriculture. Globally poverty is a significant concern, which is evident from multinational institutions generating ways to eradicate it. What follows is a consideration of the problem of insufficient food security and how intellectual property has a bearing on such.

     

      Intellectual property and food security in developing countries

    Globally insufficient food security remains a significant concern, with specific emphasis on that of developing and least-developed countries. There are, however, some developing countries who have eradicated poverty, but this does not hold true for many other nations of the world. An astronomical reduction of starvation, according to statistics is apparent around the world; this does not mean to say that no one is starving. There are still a numerous of people in the world without any or adequate food. These people remain the most undernourished of the population. Statistical information states that 24% of the population of South Asia is malnourished and 33% in sub-Saharan Africa.[i]The calculation of a countries food security entails identifying a countries capability of accessing and distributing food and well as availability. The agricultural sector in many developing and least-developed States is the main, if not only source of food, where trade practices and economic development are at a minimal.

     

    Food Security

    With nearly one billion people suffering from chronic hunger, and the expected 70% rise in demand for food by 2050, increased and continued agrarian productivity and output will be a captious component of attaining global food security, which is an intrinsic part to political stability, particularly in developing countries. The question of food security comes into play where one considers the sufficiency of food security at a household level. Different parts of the world experience different food security capabilities, as well as various individuals. In many parts of the world access to water, shelter, and food which forms a fundamental human right is a significant concern. With the population growing at a fast rate in developing and least-developed countries, and the availability of land decreasing, it has become increasingly difficult for nations to maintain adequate food security. The availability of land suitable for agriculture is another concern for countries food security.

     

    The scope and definition of food security globally is a contentious issue. At the 1996 World Food Summer (WFS) it was assessed that achievement of sufficient food security is from the individual and household level up to the global level. The objectives of the WTO include the eradication of poverty and it incorporates special and differential trade policies for developing and least-developed countries. These objectives aim at increasing Member States food security.

     

    Not only is food security concern for the multinational organization, but it is also primary concern on a governmental level, is included as a fundamental human right in many constitutions. The fundamental human right to food does not only provide individuals with access to food, but it also places an obligation on a government to supply adequate food within its reasonable means. This right includes improvement of production processes, conservation methods as well as appropriate distribution. Within the fundamental human right to food, government obligations can branch as far too include land reform, ensuring access to credit, protecting and utilizing natural resources, investigation, and development of new technologies, aiding rural infrastructure and bringing into force of explicit farmers rights through legislation.

     

    Agricultural Research and global food security

    Agricultural research is a crucial driver for advancing agrarian productivity, and as such, it is an eloquent component of international efforts to improve global food security. Agricultural research, with specific reference to the participation of the international public sector, had far-reaching impacts on agrarian research, culminating in the Green Revolution which was responsible for the findings of the genetically improved crop. Studies have shown that the genetically enhanced yield has had a significant positive impact on poverty reduction, agricultural growth, and environmental protection.

     

    The Consultative Group on International Agriculture Research (CGIAR) is the primary purveyor of public sector agricultural research targeted to advance agriculture productivity and production among poor, subsistence farmers in the developing world. CGIAR manages intellectual property issues on an issue-by-issue basis and has adopted the CGIAR Principles on Management of Intellectual Assets – this is a policy which details the procedure to the management of intellectual assets produced or acquired by CGIAR centers. Further, the International Treaty on Plant Genetic Resources for Food and Agriculture and the Nagoya Protocol to the Convention on Biological Diversity govern the international standard of intellectual property in the agricultural sector.

     

    Intellectual property and food security

    Intellectual property takes on the form of the UPOV (International Union for the Protection of New Varieties of Plants) Treaty on the protection of plant varieties.

    There are many links between IPRs and food security. In general, IPRs such as patents or plant breeders' rights seek to give incentives, mainly to private sector actors, to develop seeds that either produce higher yields or have specific characteristics which will improve food security and agro-biodiversity management.

    IPRs are a new concept to the agricultural sector, and at first glance, they seem inconsistent with the idea of what IPRs. Previously agrarian management entailed the free exchange of germplasm and knowledge, aiding all in the agricultural sector to yield similar crops with the same growth potential, it is in this era that IPRs were not suitable to the agriculture sector. Previously agriculture was seen as a means to an end, namely, food production. Now, however, farming is seen as a commercial field attaining a sizeable gross profit index yearly. Technological advances have also steamrolled agriculture into a profit generating and competitive industry.

     

    IPRs in agriculture take on two forms, namely plant breeders' rights and patents for technological advances in genetic engineering. This introduction to the agricultural sector has seen a surge in the growth of agro-biotechnology. Concerning the above-mentioned developed countries are at the forefront of obtaining IPRs. The World Trade Organisation Agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) provides the following provisions for the enforcement of protectability of agricultural IPR; it guarantees the patentability of microorganisms and that of plant varieties. Although there is not much uniformity on the patentability of lifeforms, just the existence of such possibility has seen a significant rise in the innovation of agro-biotechnology.

     

    The introduction of IPRs in the agricultural sector is not only for the benefit of developed countries. The ideas behind such introduction were also to aid sufficient food security in developing and least-developed nations by incentivizing private sector involvement in agro-biotechnology. In this instance, IPRs are at the essence of ensuring the participation of the private sector in the development of plant varieties. The development of plant varieties brings with it an opportunity for the creation of plant varieties able to withstand adverse and uninhabitable environments. Developmental improvements through agro-technology include plant varieties. Such plant varieties produce higher yields by enhancing the capacity of the plant to absorb more photosynthetic energy into grain rather than stem or leaf, types that can combat pests and varieties modified to grow faster through enhanced efficiency in the use of inputs such as fertilizers, pesticides, and water.[ii] The inclusion of IPRs now brings with it legal security for those private investors who, without such protection, would not have invested in the field. 

     

    The Importance of Intellectual Property Rights in the Agricultural Sector

    Intellectual property consequences are increasingly applicable to the public-sector international agricultural research landscape. The actual implications of the introduction of IPRs in the food sector in developing countries are unknown, given that legal frameworks are in many cases still in the process of being adopted and implemented. Potential benefits of agro-biotechnology include the development of plant varieties that help meet some of the challenges linked to existing food insecurity. Potential concerns include many socio-economic impacts as well as some environmental impacts, in particular concerning the loss of agro-biodiversity and biosafety.Overall, there are many reasons for the need to develop a legal framework that goes beyond traditionally recognized IPRs regimes. At an entry level, the introduction of IPRs in the agricultural sector can only be reasonable if IPRs cultivate food security, or in other words the realization of the fundamental human right to food. There are many ways to foster food security. One of them includes the appropriation of experience in regards to plant varieties through property rights. In this scheme which is endorsed today at a global level, the offering of control over knowledge is to state of the art inventions. In fact, the introduction of property rights in agriculture should benefit all actors involved in agricultural management. This area is the hole that developing and least developed countries must fill given that their agrarian systems are often exceptionally dependent on the beneficence of a significant number of small individual farmers, local farming communities and public-sector institutions rather than private actors.

     

    Food industry and Intellectual property in the Gulf Region

    Another aspect in need of consideration regarding intellectual property and the food and beverage industry is the patenting of food products.

    The understanding in the United Arab Emirates is that every consumer has the right to safety and freedom to food for consumption. The President of the UAE approved the law on protection of food in 2016. The emphasis of this law is on the necessary standards and regulations to be implemented to ensure the safety and quality of food. The control of the food industry instils confidence in the food and beverage products exported from the country, ultimately contributing to economic stability through growth.

     

    The UAE regulates the food industry through intellectual property, not in the agricultural sphere but commercial food production. For instance, the branded food we buy at the grocery store. Intellectual property here includes, but is not limited to ingredients used, manufacturing procedures, branding of products, etc. The regulation by the UAE of patents is Federal Law Number 31 of 2006, and this law states that any invention that may lead to devaluation of public morals or order violates the UAE patent law.  Ultimately, should your product infringe on the essence of identification of another product, it will break the patent of the latter.

     

    In Saudi Arabia, there was a Royal Decree issued, namely Royal Decree Number M/27 of 29/5/142H. This law by definition includes food products into its remit and ultimately has the effect of creating a penalty for those who violate patents in the food industry.

     

    Kuwait has also included a law regulating patents; this is Law Number 4 of the year 1962. This law, similar to the law of the UAE states that any invention which violates public morals will not be in line with such legislation and therefore subject to penalty. Food products which break this law are a copy of that which has already had a patent will be deemed to violate public morals.

     

    Conclusion

    Intellectual property rights in the agricultural sector have and will continue to become increasingly important. These rights will be critical in achieving security for investors in the agrarian sphere to ensure people will continue to invest. Investment in the field will help to combat global food security issues and the increasing role of public-private sector engagement. With the technological advances globally in the agricultural industry, the use of plant varieties and genetically modified food products has taken off, and it is an essential aspect of the regulatory framework that the products still maintain their nutritional value.

     

    Concerning Intellectual property rights in the commercial food market, the legislation has been promulgated to protect name brands of food and beverages from persons trying to enter into the food industry using their recipes, processes, branding, and manufacturing. 

     

    [i]The State of Food Insecurity in the World 2002

    [ii]Sachin Chaturvedi, 'Agricultural Biotechnology and New Trends in IPRs Regime–Challenges before Developing Countries'

     

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    Mon, 14 May 2018 09:45:54 GMT
    <![CDATA[Trademark Registration in Asia II]]> Trademark Registration in Asian Countries

    Country and Applicable Legislation Length of Trademark (in years) Trademark Definition Eligible Applicants Documentation Requirement Language Requirement and Procedures Treaty/ Classification Treaty/Classification Benefits

    Afghanistan

    The Trademark Law Number effective from 1 September 2009 (as amended) repealing Trademark Regulations issued on 20 September 1960. 10 Article 2 of the Afghanistan Trademark Law defines 'Trademark' to include:   Trademarks consist of (one or more) names, words, signatures, letters, figures, drawings, symbols, titles, seals, pictures, inscriptions, advertisements or packs or any other mark or a combination  1. Person(s)  desiring to have the exclusive use of a trademark for distinguishing goods for their own production, manufacture, selection or in respect of which he issued a certificate (Article 4); 2. Goods in which applicant trades or intends to trade (Article 4); 3. The owners of a commercial, industrial, telecommunications, agricultural, professional or service organization in Afghanistan (whether domestic or foreign) provided that marks are registered in Afghanistan (Article 5); and 4. owners of well-known marks (Article 7). 1. The trademark application with relevant application date is to be presented before Afghanistan Intellectual Property office (Ministry of Commerce); 2. name, address, the occupation of the applicant 3. a copy of a legalized power of attorney for any representative 4. name, description, and nature of goods, products and/or services for which trademark registration is sought; 5. representation of mark with at least 10 copies along with explanation of symbols and expressions used in the trademark with the definition of the component; 6. The registration fees payable to IP office in Afghanistan; and 7. The particulars of earlier registration in the home country or country having reciprocal arrangements with Afghanistan, if any (Article 10 of the Afghanistan Trademark Law also sets out the trademark application process). Note: Alcoholic beverages are not 1. Application can be submitted in English or Persian. The Afghanistan Intellectual Property Office (Central Registration Office) is responsible for registration (including preliminary search) in the UAE. 2. In the event of rejection, the Central Registration Office is obligated to notify the applicant as to reasons for rejection. 3. Trademarks are transferable and the transfer shall be valid if recorded separately with the Central Registration Office (Trademarks Registration Section) 1. Economic Cooperation Organization Trade Agreement seeking the cooperation of intellectual property rights protection under article 19. Note: UAE is not a member of the Madrid Convention or the Madrid Protocol. Note: Nice Classification (9th Edition). 1. Paris Convention, WIPO or any other international treaty for the Protection of Industrial Property; are NOT signed by Afghanistan and hence an applicant cannot claim priority based on their home applications/ registrations. However reciprocal arrangements are considered.

    Bangladesh.

    - Trademarks Act, 2009 Act No. XIX of 2009 and - Trademarks (Amendment) Act, 2015 - Trade Marks Rules, 1963 and; - Tradem 10 Section 2 of Bangladesh Trademark Law defines mark as "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, symbol, numeral, figurative elements, the combination of colors or any combination thereof;" and Trademark is defined as "a registered trademark or a mark used in relation to goods for the purpose of indicating a connection in the course of trade between the goods and the person having the right as proprietor to use the mark;" or "a mark used in relation to a service so that it may be indicated that the person has the right as proprietor to use the mark in the course of trade". Section 15(1) of the 2009 Act states that if the proprietor of a trademark used or proposed to be used desires to register it shall apply in the prescribed manner to the Registrar. Accordingly, the following persons can apply for an application:- 1. Natural or juristic persons of Bangladeshi nationality; 2. persons regularly residing in Bangladesh and are permitted to engage in commercial or vocational activities; 3. foreigners who are nationals of countries that extend reciprocal treatment to Bangladesh; 4. Public agencies. and owners of well-known marks. 1. Application stating the name of the legal entity, individual, or firm, addresses, the nationality of applicant/s represented in a special or particular manner along with the signature of the applicant; 2. legalized Power of attorney in cases where the application is being submitted by a representative; 3. application along with mark representation must be submitted with supporting documents and should be lithographed or in the English language in large and legible characters with deep permanent ink on strong paper; 4. in relation to affidavits, prints should be on only one side of approximately 13 inches by 8 inches, and the left-hand part to a margin of not less than one inch a half; 5. every application for the registration of a trademark shall be in respect of goods in one class and the separate application for each class shall be made for the same trademark; and 6. statement of use, if used, the registrar may require the applicant to file an affidavit testifying 1. As per the rules of 1963 with amendments all applications, notices, statements or other except trademarks authorized or required by the Act or the rules submitted to the Trade Mark Registry or left with or sent to the Registrar or the Central Government shall be written, lithographed or in the English language. 2. In case of Mark containing characters other than Roman translation in English must be provided and in case of the mark containing words he The registrar may ask for an exact translation thereof together with the name of the language, and such translation and name, if he so requires, shall be enclosed and signed. 3. The application is made to the Trademark registry and as per section 15(2) separate applications must be made for each class of goods or services. The application shall be made on Form TM-1, if in respect of non-textile goods. Defensive trademark registration can be applied by TM-3 form. 4. The opposition can be made under section 18 of the act within two (2) months from the date of publication. The registrar shall serve the notice of opposition to the applicant within one (1) month. 1. Paris Convention for the Protection of Industrial Property; 2. Nice Classification; 3. Convention Establishing the World Intellectual Property Organisation (the WIPO); and 4. World Trade Organisation (the WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) (1994) (April 10, 1996) 1. Being signatory to Paris Convention, the priority claim can be made under the convention or by WTO members within 6(six) months after the date in which the application was made in Convention Country together with the complete particulars and the certified copy of the priority application, the trademark shall, if registered under section 120 of Act and be registered as of the date on which the application was made in the Convention Country and that the date shall be deemed to be the date of registration.

    Brunei Darussalam

    The law providing for trademark registration is The Trade Marks Act (Cap 98) and Trade Marks Rules of 2000 (R 1, 1984 Ed. S 27/2000). 10 Under Part I of Brunei Darussalam Trademark Law: (Refer, section 4) Trademark is defined as "any visually perceptible sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. A trademark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging." As per section 33 of Brunei Trademark Law, the application can be made by "applicant" who has used the mark or has bona fide intention to use the mark. Accordingly following persons qualify as an applicant:- 1. Natural or juristic persons of Brunei nationality; 2. persons regularly residing in Brunei and are permitted to engage in commercial or vocational activities; 3. foreigners who are nationals of countries that extend reciprocal treatment to the Brunei; 4. public agencies; and 5. owners of well-known marks. 1. Request for registration of the trademark; 2. name and address of the applicant; 3. statement of goods and services in respect of which the trademark is sought to be registered; 4. representation of the mark; 5. statement in the application as to the use of Mark or Expression of bona fide intention to use the mark; 6. prescribed fee for each class of goods or services separately in respect of which registration is sought; and 7. Translations and/or transliterations if any required in English. 1. As stated under the rules a translation and /or transliteration, of each word in English to the satisfaction of the Registrar should be provided where a trademark contains or consists of a word/s in characters other than Roman or in a language other than English or Malay. 1. Paris Convention for the Protection of Industrial Property; 2. Nice Classification; 3. Convention Establishing the WIPO; 4. World Trade Organisation (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement); 5. ASEAN Framework Agreement on Intellectual Property Cooperation sought to explore the vision of ASEAN trademark system by establishing ASEAN Trademark office. (treaty not in force); 6. Agreement between Japan and Brunei Darussalam for an Economic Partnership; 7. Trans-Pacific Strategic Economic Partnership Agreement; and 8. Agreement establishing 1. Priority Claim can be made under Paris Convention or WTO by nationals and body corporate residing or having permanent place of business in member states within 6 months from the first filing date. 2. Agreement between Japan and Brunei Darussalam for an Economic Partnership sought proper enforcement of intellectual rights including trademark and prevent infringements by cooperation in customs for prohibiting importation and exportation of goods suspected of infringing intellectual property rights.

    Cambodia

    Law Concerning Marks, Trade Names, and Acts of Unfair Competition of the Kingdom of Cambodia 2002, (Royal Decree NS/RKM/0202/006). Sub-Decree on the Implementation of trademark law (Sub- Decree No. 46 dated July 12, 2006). Prakas on the Procedures for the Registration and Protection of Marks of Goods which include a Geographical Indication. 10 Article 2 (a) of the Cambodian Trademark Law defines Trademark as 'mark' means "any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise" and trademark under 2(c) means the "name or/ and designation identifying and distinguishing an enterprise." The application can be filed by any person or body resident in the Kindom of Cambodia can be the applicant. When the State of permanent residence of the applicant is outside the Kingdom of Cambodia, then a Power of Attorney appointing an agent should be filed within 2 months of the filing of the application. 1. Natives of the natural or legal entity, practicing any of the commercial, industrial, professional, or service business; 2. foreigners of the natural or legal entity, practicing any of the commercial, industrial, professional, business in Cambodia. 3. foreigners of natural or legal entity practicing any of the commercial, industrial, vocational or service business in any state having reciprocity of treatment with the State; 4. public legal persons; and 5. owners of well-known marks. 1. a request for registration; 2. name of applicant and address for communication bearing signatures of the applicant or representative; 3. reproduction of mark with 15 additional reproductions of the mark; 4. specification of goods or services based on Nice classification; 5. if priority is claimed the application a declaration claiming the priority of an earlier national or regional application filed by the applicant or his predecessor in title in any country member of the Paris Convention; and 6. Translations as per requirements, if any. 1. As per article 4 of the Rule, applications shall be in the Khmer or English language, and any document forming part of an application or submitted to the Registrar pursuant to the Law or this Sub-Decree and which is in a language other than Khmer or English shall be accompanied by a Khmer or English translation. 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks; 2. ASEAN Framework Agreement on Intellectual Property Cooperation (Not in force); 3. Paris Convention for the Protection of Industrial Property (22 September 1998); 4. Convention Establishing the WIPO; 5. World Trade Organisation (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994) (April 10, 1996) 6. Agreement establishing the ASEAN-Australia-New Zealand Free Trade Area; 7. Agreement between the United States of America and the Kingdom of Cambodia on Trade Relations and Intellectual Property Rights Protection; and 8. Memorandum on IP Cooperation between Cambodia and Thailand. 1. Under the WIPO-administered Madrid system, a trademark owner may protect a mark in up to 90 countries plus the European Union with its Community Trade Mark (CTM) by filing one application, in one language (English, French or Spanish), with one set of fees, in one currency (Swiss Francs). 2. The applicant can claim right to priority by attaching a declaration claiming priority of prior national or regional application in any country member of the Paris Convention. 3. Agreement between the United States of America and the Kingdom of Cambodia on Trade Relations and Intellectual Property Rights Protection – the Article XVI commits to co-operate on registration and recognization by harmonizing the requirements stating the meaning of marks, use as necessary criteria for maintaining the registration validity and adoption of the international classification. 4. Madrid protocol aids international registration of marks.

    China

    Trademark Law of the People's Republic of China amended for the third time according to the "Decision on the Revision of the Trademark Law of the People's Republic of China" adopted at the 4th Session of the Standing Committee of the Twelfth National People's' Congress on August 30, 2013) 10 Article 8 of Republic of China Trademark Law provides "an application may be made to register as a trademark any mark, including any word, device, any letter of the alphabet, any number, three-dimensional symbol, color combination, and sound, or any combination thereof, that identifies and distinguishes the goods of a natural person, legal person, or other organization   Note: China allows registration of sound and color marks Article 4 of the Chinese Trademark law provides:- 1. Natives of the natural or legal entity, practicing any of the commercial, industrial, professional, or service business; 2. foreigners of the natural or legal entity, practicing any of the commercial, industrial, professional, or service business in the State. 3. foreigners of the natural or legal entity practicing any of the commercial, industrial, vocational or service business in any state having reciprocity of treatment with the State; 4. public legal persons; and 5. owners of well-known marks. 1. Under rule 9 of implementing rules, applicant must file one application in respect of each class of goods according to the Classification of Goods stating name and address. The application must be in the Chinese language; 2. ten copies of the reproductions of Clear trademark and one copy of the black and white design with the size between minimum 5cm*5cm and maximum 10cm*10cm (the Soft copy should also be provided); 3. any application for the registration of a trademark in respect of pharmaceutic products for human use shall be accompanied by a certificate issued by the health administrative department. Any application for the registration of a trademark in respect of cigarettes, cigars or cut tobacco with packages shall be accompanied by a certificate of authorized manufacture issued by the competent authority of the State for tobacco products. Any application for the registration of a trademark in respect of any such other goods as prescribed by the State that must use a registered the trademark shall be accompanied by a certificate of authorization issued by the competent department concerned; 4. details of goods and service; 5. power of attorney duly executed by the applicant in favor of the agent; 6. copy of ID card or Passport (for the natural person); and 7. any document in a foreign language shall be accompanied by a Chinese translation thereof. 1. Under rule 14 of Implementing Rules - where a foreigner or a foreign enterprise applies for the registration of a trademark or for any other matters concerning a trademark, the Chinese language shall be used. Foreign language documents must be have Chinese translation. 2. Once an opposition is filed against the application the Trademark Office shall hear the facts and grounds submitted by the opposing party as well as the opposed, shall make a decision on whether or not to approve the application for registration within the twelve months from the date of publication after investigation and verification, and shall notify the opposing party and the opposed of its decision, in writing. If an extension is needed, upon the approval of the department of industry and commerce administration under the State Council, the time limit can be extended a further three month 1. Paris Convention for the Protection of Industrial Property; 2. Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks; 3. Convention Establishing the World Intellectual Property Organisation (the WIPO); 4. World Trade Organisation (the WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) (1994); 5. Trademark Law Treaty; 6. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks; 7. Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China; 8. Agreement between Japan and China with Regards to Protection of Trademarks; 9. Singapore Treaty on the Law of Trademarks 1. Any foreign person or enterprise applying for the trademark in China has to file the application in accordance with the agreement between two countries, or international treaties or on the basis of principles reciprocity. Application with priority right should be filed within 6 months from the first filing date of application in another country, who is a member of Paris Convention; 2. Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China under chapter 12 seeks to keep rights transparent by notifications and thereby protect the intellectual property rights including trademarks. 3. Agreement between Japan and China with Regards to Protection of Trademarks grants parties from contracting states protection of the well-known trademark as per their determination of well-known trademark. 4. Special provisions relating to the protection of trademarks through international registration under the Madrid protocol are laid down under Chapter IVA of 2010 Act for the international application under Madrid protocol. Before becoming the member of this protocol individual application was required to be made by the applicants seeking international trademark protection.

    Hong Kong

    Trade Marks Ordinance as amended by L.N. 254 of 2009;   Trade Marks Rules (E.R. 3 of 2015); Trade Marks Ordinance Regulation.   Trade Marks Ordinance (Amendment of Schedule 1) Regulation 2013 (HK190) 10 Under section 3 of the Hong Kong Trade Marks Ordinance (as amended by L.N. 254 of 2009) trademark is defined as: 1. "trademark" means any sign which is capable of distinguishing the goods or services of one undertaking from those of other undertakings and which is capable of being represented graphically; 2. Without affecting the generality of subsection (1), a trademark may consist of words (including personal names), indications, designs, letters, characters, numerals, figurative elements, colors, sounds, smells, the shape of goods or their packaging and any combination of such signs. 3. A sign may constitute a trademark even though it is used in relation to a service ancillary to the trade or business of an undertaking and whether or not the service is provided for money or money's worth. (4) Unless the context otherwise requires, references in this Ordinance to a trademark shall be construed as including references to a certification mark, collective mark and defensive trademark..' The Hong Kong Trademark Law does not specifically set out this information within its Acts or Rules. However, a bare reading of HK's IP Law implies that following persons are eligible: 1. Natives of the natural or legal entity, practicing any of the commercial, industrial, professional, or service business; 2. foreigners of natural or legal entity, practicing any of the commercial, industrial, professional, or service business in the State. 3. foreigners of the natural or legal entity practicing any of the commercial, industrial, vocational or service business in any state having reciprocity of treatment with the State; 4. public legal persons; and 5. owners of well-known marks. 1. Under section 38 of the Ordinance: An application for registration of a trade mark shall be filed with the Registrar in any of the official languages such as English and/or Chinese; 2. the application shall include (a) a request for registration of the trademark;(b) the name and address of the applicant; (c) a statement of the goods or services in relation to which it is sought to register the trademark; (d) a representation of the trademark; and (e) such other information, documents or matter as may be required by the rules; 3. classification of goods and services under Rule 5 of Rule 2015 and section 40 of the Ordinance is classified in accordance with the International - Nice Classification; 4. under rule 9 of 2015 rules the applicant wishes to claim a right to priority under section 41 of the Ordinance, shall include the following particulars- (a) the name of each country, territory or area in respect of which a right to priority is claimed; (b) the date of filing of the application filed in, or in respect of, each such country, territory or area; and (c) the application number assigned to that application, if it is known to the applicant; 5. translations, if any, of any word, letter or character in a language other than English or Chinese, the Registrar may require the applicant to file an exact translation of that word, letter or character into English or Chinese; and 6. Any other documents required to be verified by the Registrar. The application form is submitted in French language. Once the marks have been published in the Official Gazette, there is a set term of sixty (60) post publication date to file for opposition claims relating to domestic registrations. In case of international applications, the term is set for two (2) months from the date mark is published in Gazette. opposition term cannot be extended. 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks ; 2. Madrid Agreement Concerning the International Registration of Marks; 3. Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks; 4. Paris Convention for the Protection of Industrial Property ; 5. Trademark Law Treaty ; 6. Convention Establishing the World Intellectual Property Organization ; 7. Paris Convention for the Protection of Industrial Property ; 8. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) Morocco is a member of the Paris Convention. An applicant who has applied for a trade mark in another convention country is entitled to a priority right to be accorded the same date as the first filed application, provided the Moroccan application is filed within six months of such earlier filing date. Morocco is also a member of the Madrid Agreement and Protocol, so that registration of a trade mark may be obtained by way of an international application designating Morocco. Under the WIPO-administered Madrid system, a trademark owner may protect a mark in up to 90 countries plus the European Union with its Community Trade Mark (CTM) by filing one application, in one language (English, French or Spanish), with one set of fees, in one currency (Swiss Francs)

    India

    The Trademark Act, 1999 amended by The Trade Marks (Amendment) Act, 2010 and Trade Marks(Amendment) Rules, 2013 10 Per 1999 Act - section 2 (zb) "trademark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from choose of others and may include shape of goods, their packaging and combination of colours in relation to Chapter XII (other than section 107), a registered trademark or mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark, and in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate to a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of the permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark." Section 2 m defines mark as " "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. section 18 (1) of India's Trademark Law authorizes following persons or entities to make the application: i. Any person claiming to be the proprietor of a trade mark used or proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar in the prescribed manner for the registration of his trademark. ii. section 36B (a) under chapter IVA as added after 2010 amendment states special provisions relating to the protection of trademark through the international registration under the madrid protocol wherein the application can be made by a person who is a citizen of, or is domiciled in, or has a real and effective industrial or commercial establishment in, that Contracting State or a State which is a member of that Contracting Organisation, as the case may be. iii. A single application can be made by different classes of goods and services and fees in respect of each such class (application is examined by the Indian Trade Marks Office) 1. The application under form prescribed as per rules stated in the first schedule of the 1999 Act along with fee; 2. soft Copy of Mark; 3. date of first use of the mark; 4. name, address, and nationality of the applicant; 5. trademark class/classification based on international classification; 6. list and description of goods or services; 7. if the mark is a script not in English or Hindi, the English translation of the mark; 8. if the application is to claim priority from an earlier filed convention application, details stating number, date, country and goods/services of that application is required. A certified priority document or it's duly the notarized copy is to be submitted. If the certificate is not in English, a certified/notarized English translation is required; and 9. Power of attorney simply signed by the applicant in favor of the agent. For Collective Marks: 1. The application shall be accompanied by regulations governing the use of such collective mark; and 2. the Regulations shall specify the persons authorized to use the mark, conditions of membership of association and conditions of use of the mark and sanctions against misuse of the mark. For Certification Marks: 1. Application for Certification marks shall be accompanied by a draft of regulations. It shall include provisions regarding cases in which the proprietor is to certify goods or services and authorize the use of certification trademark; and 2. Any other provision which the registrar may require to be inserted. The application by applicant stated under section 18 shall be made in prescribed manner to the Trade Marks Registry within whose territorial limits the principal place of business in India of the applicant or in the case of joint applicants the principal place of business in India of the applicant whose name is first mentioned in the application as having a place of business in India is situated. Where the applicant or any of the joint applicants does not carry on business in India, the application shall be filed in the office of the Trade Marks Registry within whose territorial limits the place mentioned in the address for service in India as disclosed in the application is situated. 1. The application under section 18 must be in English Section 67 B of Trademark amendment 2013 Rules amending 2002 rules states "An International application or any communication relating there too for transmission to the international bureau or any advice by way of notification of extension of protection to India resulting from international registration shall be in English". 2. A translation of non-English words into English is required in case of script is in language other than English or Hindi. 3. Any opposition must be made within four months from the date of the advertisement or re-advertisement (as amended by 2010 Act) of an application for registration or within such further period, not exceeding one month in the aggregate on payment of the prescribed fee and give notice in writing in the prescribed manner to the Registrar, of opposition to the registration. 4. The Registrar shall serve a copy of opposition on the applicant within two months from the receipt by the applicant of such copy of the notice of opposition, the applicant shall send to the Registrar in the prescribed manner a counter-statement of the grounds on which he relies for his application. 5. If the applicant sends such counterstatement, the Registrar shall serve a copy thereof on the person giving notice of opposition. 6. The Registrar shall decide the matter based on the evidence produced after hearing the parties grant or reject the application or grant with any limitations. 7. Once accepted the Registrar issues a certificate, sealed with the seal of the Trademarks Registry. 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks; 2. Paris Convention for the Protection of Industrial Property. 3. Nairobi Treaty on the Protection of the Olympic Symbol; 4. Comprehensive Economic Partnership Agreement between Japan and the Republic of India including inter alia protection of trademark under Article 106 of the Treaty. 5. Memorandum of Understanding between Switzerland and India for fostering protection and promotion of IP related rights including trademarks. 6. World Trade Organization (WTO) - Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994) 7. Agreement establishing the World Trade Organization (WTO) 1. Comprehensive Economic Partnership Agreement between Japan and the Republic of India grant parties from contracting states Article 106 protection of the well-known trademark as per their determination of well-known trademark. A request by the applicant for considering its application for registration of a trademark be examined in preference to other applications shall be considered. 2. Special provisions relating to the protection of trademarks through international registration under the Madrid protocol are laid down under Chapter IVA of 2010 Act for the international application under Madrid protocol. Before becoming the member of this protocol individual application were required to be made by the applicants seeking international trademark protection.

    Indonesia

    Trademark Law Number 15 of 2001   Indonesian Government Regulation No. 7 of 2005 on Organizational Structure, Duties and Functions Trademark Appeal Commission to implement Article 34 of Law No. 15 of 2001. 10 Article 1 of Indonesia's Trademark Act (15 of 2001) defines Mark under article 1.1 as "Mark shall mean a sign in the form of a picture, name, word, letters, figures, the composition of colors, or a combination of said elements, having distinguishing features and used in the activities of trade in goods or services. Trademark is defined under Article 1.2 as "Trade Mark shall mean a mark that is used on goods traded by a person or by several persons jointly or a legal the entity to distinguish the goods from other goods of the same kind. As per the definition of the applicant under article 1.6 applicant/s can be any party that files an application. Indonesia recognizes 'first-to–file' system. As also understood from article 3 anybody whether an owner/user or not if applies first for registration can become the registered owner of the mark which is finally accepted after completing due process. Under article 10 if an applicant resides or permanently domiciles outside the territory of the Republic of Indonesia the application must be filed through a proxy in Indonesia. A written and the signed application shall be filed in the Indonesian language under article 7 stating: 1. Date, month and year 2. Complete name, nationality, and address of the applicant 3. Complete name and address of proxy (if applicable) 4. Colors (if the mark uses color elements) 5. Country and filing date of original application (if the application is filed for priority right). 6. The application shall be signed by the applicant or his proxy. 7. Receipt of the payment. 8. If the application filed by more than one person who is jointly entitled to the mark the application shall be signed by one of the applicants entitled to the mark and be furnished with a written consent from them. 1. Applications have to be filed in the Indonesian language; 2. an application with priority right should be filed within 6 months from the first filing date of application in another country, who is a member of Paris Convention. 3. ASEAN Framework Agreement on Intellectual Property Cooperation sought to create co-operation on the protection of intellectual property rights and seeks to create ASEAN trademark registration system and is applicable to Indonesia. 4. Trademark law treaty aimed at harmonization of procedures which has been achieved to the certain extent. 1. Trademark Law Treaty 2. Convention Establishing the World Intellectual Property Organization 3. Agreement establishing the World Trade Organization (WTO) 4. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994) 5. ASEAN Framework Agreement on Intellectual Property Cooperation. 1. An application with priority right should be filed within 6 months from the first filing date of application in another country, who is a member of Paris Convention. 2. ASEAN Framework Agreement on Intellectual Property Cooperation sought to create co-operation on the protection of intellectual property rights and seeks to create ASEAN trademark registration system. 3. Trademark law treaty aimed at harmonization of procedures which has been achieved to certain extent.

    Japan

    Trademark Act (Act No. 127 of April 13, 1959, as amended up to Act No. 36 of May 14, 2014) 10 Japanese Trademark Law defines "Trademark" (Article 2 of Law) to include among those recognizable by human perception, any character(s), figure(s), sign(s) or three - dimensional shape(s) or colors, or any combination thereof, sounds, etc. provided by Cabinet Order (hereinafter referred to as a "mark") which is: (i) used in connection with the goods of a person who produces certifies or assigns the goods as a business; or (ii) used in connection with the services of a person who provides or certifies the services as a business (except those provided for in article 4: unregistrable trademark) Any person or legal entity can register the trademark. Japan also adopts the first-to-file the system in which the registration is granted to a person who has first filed an application when an application for similar or identical trademark is filed, regardless of whether the trademark has been used previously. 1. Name and the domicile or residence of the applicant for trademark registration; 2. samples of trademark (between 8cm*8cm and 15cm*15cm); 3. the description of goods and services and class of goods or services provided by Cabinet Order as provided for in Article 6(2); 4. the application shall contain thereof a statement indicating a the trademark consists of the following as listed herein; a. any character(s), figure(s), sign(s) or three dimensional shape(s) or colors, or any combination thereof, where the said character(s), figure(s), sign(s) or three- dimensional shape(s) or colors in connection with the said trademark changed; b. consists of the three-dimensional shape(s) (including the combination with any character(s), figure(s), sign(s) or three-dimensional shape(s) or colors, or any combination thereof) (excluding those listed in the preceding item); c. consists solely  the of colors (excluding those listed in item (a); d. consists solely of sounds; or e. in addition to those listed in each of the preceding items, trademarks provided by Cabinet Order of the Ministry of Economy, Trade and Industry; 5. the indication of the trademark being "standard character trademark" after trademark is sought for registration with item be above. 6. Power of attorney duly made. 7. certified copy of priority claim to seek claim under article 8 within six months from the date of application filed in member country. 1. The application and the mark are preferred in Japanese language. In a case where transliteration translation of mark is described, the examiner can use it as a reference for examination. Since the popular naming or concept of said trademark must be determined by considering the degree of recognition by Japanese consumers, the use of such description will be left to the judgment of the examiner. 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks 2. Trademark Law Treaty 3. Nice Agreement Concerning the InternationalClassification of Goods and Services for the Purposes of the Registration of Marks 4. Paris Convention for the Protection of Industrial Property 5. Convention Establishing the World Intellectual Property Organization 6. Agreement establishing the World Trade Organization (WTO) 7. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 8. Agreement between Japan and China with Regards to Protection of Trademarks 9. Comprehensive Economic Partnership Agreement between Japan and the Republic of India including inter alia protection of trademark under Article 106 of the Treaty. 10. Agreement between the Government of Japan and the Government of Malaysia for an Economic Partnership. 11. Agreement between the Government of Japan and the Government of Malaysia for an Economic Partnership for streamlining and Harmonization of Procedural Matters in Intellectual property including trademark under article 121. 12. Agreement between Japan and the Kingdom of Thailand for an Economic Partnership for harmonizing and streamlining the procedure and mutual co-operation for trademark protections. 13. Agreement between Japan and the Socialist Republic of Viet Nam for an Economic Partnership 14. Agreement between Japan and Brunei Darussalam for an Economic Partnership 1. Japanese national or foreign national residing or domiciled in Japan (or juristic person) can file an application for international registration of trademark, by Madrid Protocol, where requirements provided by Ordinance of the Ministry of Economy, Trade and Industry are applicable. 2. Japanese Patent Office has released the 'International Classification of Goods and Services, 10th Edition, Version 2015 in Japanese translation with similar group code'. Hence uniform classification is applicable to all applications. 3. Comprehensive Economic Partnership Agreement between Japan and the Republic of India grant parties from contracting states Article 106 protection of the well-known trademark as per their determination of well-known trademark. A request by the applicant for considering its application for registration of a trademark is examined in preference to other applications shall be considered. 4. Agreement between the Government of Japan and the The government of Malaysia for an Economic Partnership for streamlining and Harmonization of Procedural Matters in Intellectual property including trademark under article 126 protection of trademarks to the registered owner under article 132. 5. Agreement between Japan and the Socialist Republic of VietNam for an Economic Partnership sought to abolish the requirement of the authentication of signatures or other means of self-identification on documents to be submitted to the competent authority of the Party, including applications, translations into a language accepted by such authority of any earlier application whose priority is claimed, powers of attorney, and certifications of assignment, in the course of application procedure. Further, protection of the trademark. 6. Agreement between Japan and Brunei Darussalam for an Economic Partnership sought proper enforcement of intellectual rights including trademark and prevent infringements by co-operation in customs for prohibiting importation and exportation of goods suspected of infringing intellectual property rights.

     

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    Tue, 17 Apr 2018 00:00:00 GMT
    <![CDATA[Глобальный Анализ Соглашений Франчайзинга]]> ГЛОБАЛЬНЫЙ АНАЛИЗ СОГЛАШЕНИЙ ФРАНЧАЙЗИНГА

    «Изоляция невозможна. Глобализация неизбежна и полезна».

    Введение

    Вы хотите создать привлекательную бизнес-модель для распространения товаров и услуг по всему миру? У вашей компании есть имидж бренда на рынке и вы хотите расширения? У вас есть уникальнй тренд, и вы хотите получить от него прибыль? Если вы положительно ответили хотя бы на один вопрос, то франчайзинг– это лучший вариант для того, чтобы заработать всемирную популярность с минимумом ресурсов и максимум прибыли. С развивающейся мировой экономикой и изменениями в международных корпоративных транзакциях, предприниматели во всем мире стремятся открыть свои бренды в зарубежных странах. Если вы один из этих предпринимателей, это статья будет для вас  нечто большим, чем юридический аспект соглашений о франчайзинге.

    Бизнес-структура крупных компаний быстро трансформируется с четкой целью расширения по всему миру. Франшиза – это уникальный метод и механизм передачи бизнес-структуры с помощью нескольких ресурсов, используемый прежде всего в сфере услуг. Это прежде всего проявление взаимодействия между приверженностью получателя франшизы и управленческого опыта франчайзера. Для существования модели франшизы в стране нужна правовая среда, обеспечивающая организованные рамки для всех заинтересованных сторон, однако в различных странах нет единогласия относительно единственной модели. Оглянувшись назад в историю, мы можем видеть заметную тенденцию регулирования в основных юрисдикциях после адаптации модели франшизы, большинство стран готовы изменить правовую среду для того, чтобы система франшизы дышала. В то время как некоторые другие страны по-прежнему неохотно к ней относятся и полагаются только на основные правила и положения, регулирующие другие виды предпринимательской деятельности в целом.

    Модель франчайзинга в дальнейшем выиграла от тенденции к глобализации рынков, новая глобальная адаптация модели франчайзинга рассматривается как икона западной глобализации. Принимая во внимание международные стандарты, в этой статье основное внимание уделяется элементам франчайзинга, правовой структуре и ее применению в основных юрисдикциях в мире.

    ОАЭ

    ОАЭ обладают устойчивыми и динамичными рынками и предлагают новые международные бизнес условия, благоприятные для франшизы. В настоящее время в ОАЭ франшизы работают в различных секторах, но в основном в сфере быстрого питания, безалкогольных напитков, косметических продуктов и одежде. Франчайзинг в ОАЭ регулируется рядом гражданских и коммерческих законов в зависимости от условий контракта, поскольку в стране нет конкретного закона о франчайзинге. Существуют многообразные законы, которые применяются к соглашениям о франчайзинге, такие как Федеральный закон № 13 от 1981 года (с изменениями) об организации коммерческих агентств, Федеральный закон № 5 от 1985 года о гражданских сделках, Федеральный закон № 18 от 1993 года о коммерческих сделках.

    Помимо вышеупомянутых к ним также относится закон об интеллектуальной собственности ОАЭ в отношении товарных знаков, авторских прав и патентов, Федеральный закон № 8 1980 года о трудовом законодательстве (с поправками). Однако главной проблемой, с которой сталкиваются суды ОАЭ при рассмотрении франшизы в качестве агентства, является арбитраж в споре о франшизе. В стране существуют два типа соглашений о франчайзинге, зарегистрированные и незарегистрированные, где одни зарегистрированы в Министерстве Экономики ОАЭ, а другие – нет. Спор, возникающий при зарегистрированном соглашении о франчайзинге, обеспечивает исключительную юрисдикцию местным судам в соответствии с Законом о коммерческих агентствах, напротив, спор, возникающий при незарегистрированной договоренности, не рассматривается в суде. Закон о Коммерческих Агентствах благоприятно настроен по отношению к получателям франшизы нежели франчайзерам, и поэтому международные бренды до открытия в ОАЭ должны учитывать необходимость регистрации соглашения. Регистрация может обеспечить возможность обеим сторонам предотвратить параллельную торговлю товарами и имеет доказательную ценность  в вопросе о нарушении товарного знака. Суд сталкивается с несколькими видами споров как связанных с зарегистрированными,  так и незарегистрированными контрактами, когда прекращение действия зарегистрированного агентского соглашения затруднено, или имеет место быть искажение, нарушение договора, назначение другого агента после прекращения действия контракта.

    На практике существует значительная часть незарегистрированных соглашений, и суды во многих случаях рассматривают дела, в которых применяются существенные положения Федерального закона № 18 1993 года о коммерческих сделках. В зарегистрированных соглашениях, закон предусматривает более высокую защиту франчайзи, ссылаясь на статью 8 Закона о коммерческом агентстве, где Принципал может расторгнуть договор только по обоснованной причине, тогда как по незарегистрированным соглашениям соглашение рассматривается как договор.

    Объединенное Королевство

    В 1960 году Dyno-rod стала первой франчайзинговой сетью, запущенной в Великобритании, с тех пор франчайзинг заложил свои корни и процветал как проверенный метод расширения бизнеса на рынке. Британская ассоциация франчайзинга (BFA) регулирует систему франчайзинга в стране в соответствии с ее кодексами и этикой из-за отсутствия конкретных законов о франшизе. Кодекс BFA относится только к ее членам, но Верховный Суд Великобритании изменил свое мнение в деле Re Drivetime Recruitment Ltd Re DST Ltd, где речь шла о франшизе, в которой франчайзер не был членом BFA,суд признал важность BFA при анализе поведения франчайзеров в целом. Кодекс BFA налагает обязательства на обе стороны и специально не поддерживает какую-либо из них.

    Помимо кодекса BFA, Закон Великобритании о конкуренции 1968 года регулирует все виды соглашений в стране, включая франчайзинговые соглашения. Однако главной проблемой среди франчайзеров является запрет на заключение соглашений, установленный самим Законом о конкуренции. В первую очередь, франчайзеру запрещается заключать соглашения, нарушающие или искажающие Закон о Конкуренции, во-вторых, любое соглашение, не соответствующее Законодательству Европейского Союза, также не соответствует законодательству Великобритании. Правила ЕС применяются в Великобритании в соответствии со статьей 101 Закона, когда Европейская Комиссия выпустила освобождение от обязательств для вертикальных соглашений, которое включает освобождение от определенных правил и положений при соблюдении определенных критериев..

    Хотя в стране нет конкретного закона о франчайзинге, существует другое законодательство, которое использует суд при решении спора между франчайзерами, а именно Закон о Коммерческих Схемах 1996 года, Закон о Защите Данных от 1998 года, Закон о Несправедливых Контрактах 1977 года и Закон о Взяточничестве 2010 года. Суд рассматривает несколько разновидностей споров между сторонами, которые включают исполнение принудительных неконкурентных обязательств после прекращения действия контракта, нарушение контракта, введение в заблуждение и многое другое.

    Соединенные Штаты Америки

    Лидер в мировой индустрии франчайзинга и образец для подражания большинства франшизных систем мира по-прежнему занимает ведущую позицию на мировом рынке. Франчайзинг в США регулируется федеральными или государственными законами, где первое это Федеральное Правило Франчайзинга, принятое Федеральной Торговой Комиссией США (FTC), применяемое по всей стране, а второе – законы различных штатов, которые применяются к конкретным транзакциям, если продажа франшизы произошла в конкретном штате, бизнес находится в штате или получатель франшизы находится в штате.

    Помимо основного закона, существует 3 общие категории законов, регулирующих франшизу в стране, а именно законы о раскрытии информации, законы о регистрации и другие соответствующие законы. Эти три категории предотвращают наиболее распространенные виды нарушений во франчайзинговых соглашениях, такие как продажа незарегистрированной франшизы, неверно предоставленная информация и неправомерное расторжение контракта. Федеральное Правило Франчайзинга не предусматривает конкретного положения о регистрации франшизы, однако различные штаты требуют, чтобы франшиза была зарегистрирована до выхода на рынок. Кроме того, законы штатов также налагают другие ограничения на франчайзинговые отношения, в том числе добросовестность и разумность, маркетинговые сборы, отказ от обязательств и т.д.

    Дело eBay Inc. против MercExchange LLC является одним из важных случаев в истории франчайзинга США. Оно затрагивало вопрос о защите прав на товарные знаки после окончания срока действия контракта, суд высказался в пользу права франчайзера на прекращение использования товарного знака после завершения соглашения.

    Индия

    Франчайзинговый сектор в Индии находится в стадии развития, и аналогично большинству стран мира в нем нет конкретных правил, регулирующих закон о франчайзинге в стране, и поэтому соглашения являются договорными по своему характеру. Франшизные соглашения  регулируются различными статутами и законами, которые определяют тип отношений между франчайзерами, Закон о Договорах в Индии 1872 года, Закон о монополиях и ограничительной торговой практике 1969 года, Закон о Конкуренции 2000 года, Закон о передаче имущества 1882 года, Закон о Защите прав потребителей 1986 года, Законы об интеллектуальной собственности, Индийское налогообложение 1961 года и Закон об управлении иностранной валютой 1999 года. Кроме того, перед выходом на индийский рынок любые инвестиции должны соответствовать правилам политики прямых иностранных инвестиций (FDI), раз в полгода выпускаемым Департаментом Промышленной Политики и Продвижения (DIPP).

    Франчайзеры и франчайзи создают договорные отношения, однако иногда отношения между сторонами могут считаться агентскими, если франчайзи разрешено заключать контракты с третьей стороной. Кроме того, вопросы, касающиеся соглашений о франчайзинге, могут включать расторжение договора, искажение информации, нарушение договора и многое другое. Тем не менее, суд не рассматривает вопросы об ограничивающих обязательствах после завершения срока действия контракта, в соответствии в разделом 27 Закона о Договорах подобные ограничивающие оговорки являются недействительными. Кроме того, суд не поддерживает ни одну из сторон, поскольку отношения между франчайзером и франчйзи в целом являются договорными, однако в отношении принципал-агент закон больше благоприятен для агента. 

    Суд Высшей Инстанции всегда старается максимально эффективно решать споры. В деле Gujarat Bottling Co. Ltd. против Coca-Cola Co. Ltd.[ii]Верховный Суд Индии акцентировал внимание на важном аспекте соглашения о франшизе, разглашении ноу-хау и коммерческой тайны получателю франшизы. Суд счел, что получатель должен предпринимать адекватные шаги для защиты конфиденциальности франчайзера, а тот, в свою очередь, имеет право навязывать ограничивающие обязательства для предотвращения раскрытия коммерческой тайны на рынке.

    Саудовская Аравия

    Королевство Саудовская Аравия открыто для  соглашений о франшизе с небольшими правовыми ограничениями. Законодательство Саудовской Аравии не создает различия между иностранными франчайзером  и франчайзи и саудовскими. В стране нет конкретного закона о франшизе, однако Министерский Указ  №1012 от 17 сентября 1412 года (соответствует 22 марта 1992 года), изданный  Министерством Торговли и Промышленности, привел франчайзинг в соответствии с аналогичной сферой регулирования коммерческих агентств. Регулирования коммерческих агентств устанавливают правила, регулирующие отношения между принципалом (франчайзером) и агентом (получателем франшизы). Кроме того, как и в ОАЭ существует 2 типа соглашений, зарегистрированные и незарегистрированные, где первые зарегистрированы в Реестре Коммерческих Агентств в Министерстве Торговли и Промышленности в течение 6 месяцев, а другие - нет. Кроме того, лица, не зарегистрировавшие свои соглашения, могут по-прежнему осуществлять свою деятельность, но они не смогут пользоваться защитой в соответствии с Законом об Агентствах.

    Принимая во внимание обязательные положения, законы шариата будут применяться ко всем соглашениям о франшизе, и стороны имеют автономию для структурирования контракта. Закон рассматривает такие вопросы, как прекращение действия, когда договор будет расторгнут в соответствии с положениями и нет минимального срока для его исполнения. Ограничительные положения законно подлежат исполнению в Королевстве, где франчайзер имеет право ограничивать франчайзи от конкуренции с франчайзером, разрешение споров, стороны могут предусмотреть механизм разрешения споров, и если стороны не выбрали арбитраж, вопрос будет разрешен судом, имеющим юрисдикцию.

    Заключение

    С волной глобализации, захватившей бизнес-структуру крупных компаний по всему миру, франчайзинг кажется привлекательным и выгодным вариантом для иностранных брендов, которые расширяются во всем мире. Будущее франчайзинга яркое и ясное; однако рекомендуется проконсультироваться с адвокатом до заключения соглашений о франшизе из-за различий в законах в различных юрисдикциях.


    [i] [2004] ALL ER (D) 180 (Jul)

    [ii](1995) 5 SCC 545

     

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    Thu, 22 Mar 2018 12:50:00 GMT
    <![CDATA[Франчайзинг в ОАЭ]]>    Liability of Franchisors

    You cannot bring the Canadian winters to the UAE, but you can enjoy the warm coffee of Tim Hortons in the UAE. UAE has the answer to most of your cravings from back home, whether you are missing the butter chicken or chicken and waffle. This multi-diverse country is a global hub of franchising. The franchising business in the United Arab Emirates (the UAE) has been developing consistently over the last couple of years. Abundant international companies have expanded their organizations in the Emirates over the recent years. Their diverse multi-social populace and their excellent business condition have transformed the UAE into a social and visitor focus positive for diversifying. The many open doors the Emirates give enable organizations for any industry to flourish. The UAE is the focal point of this dynamic franchising as it is a business gateway to the MENA region. The Emirates holds the second place in the UK about the global retail brands with Dubai as the most common choice to invest. From organic cafes and supermarkets, fancy eateries, to thrift shops and top of the line garments brands, most of the world-known names are available on the UAE marketplace.

    While the notion of franchising seems simple, several issues should be taken into consideration when dealing with this business segment. It is essential to understand the rights and obligations of the franchisor and the franchise and what are the issues and rules that one should consider before moving forward. As for the concept of franchising in the UAE, there is no specific law for the business and franchising is the subject of commercial and agency regulations, which does not differentiate, between franchise agency or distribution agreements or another form of sales agency relationship. There is no specific legislation for regulating the franchising business in the UAE, but there are numerous laws in the UAE, which governs the franchising businesses as follows:

  • Federal Law Number 18 of 1981 regarding Organization of Commercial Agencies (as amended by Law Number 14 of 1998) and as amended by Law Number 13 of 2006 (the Agency Law);
  • Federal Law Number 5 of 1985 Civil Transactions (the Civil Code);
  • Federal Law No 18 of 1993 on Commercial Transactions (the Commercial Transaction Law).
  • The Dispute Resolution

    The law in the UAE mandates that only UAE nationals or corporations wholly owned by UAE nationals or those with a UAE partner or sponsors are allowed to conduct business. However, there is an exception to the companies who have their presence in the free zones. The companies in the free zones are free to opt a foreign law to govern their agreement. On the other hand, UAE federal laws apply to commercial arrangements such as the Civil Code and the Commercial Transactions Law govern unregistered contracts or companies having their presence in UAE mainland.

    The UAE legal system differentiates between the two forms of agreements, registered agreements and unrecorded in the ministry of economics. In general terms, these laws recognize the right of parties in an unregistered deal to contract with each other on conditions as they may concur and are free to choose a foreign law to govern their agreement. And there are also some events where the local courts will not consider the parties choice of law and administer the contract under UAE law.

    Registered Agreements

    If a franchisee registers its agreement under the Agency Law, the franchise holds an extreme position regarding negotiating the termination of a contract making it very difficult for the franchisor to terminate a registered agreement. The franchisee will also be able to block imports of products covered by the franchise, which companies ship to other consignees. Thus, in practice, it is best for franchisors to take steps to ensure that no registration under the Agency Law occurs as the law favors the franchise more than the franchisor. The UAE Ministry of Economy recommends the company for applying Agency Law in UAE to register themselves and to meet the following requirements:

  • Agent must be a UAE national or a company wholly owned by UAE nationals;
  • The relationship must be exclusive; and
  • The relationship between the agent and principal should register with UAE Ministry of Economy.
  • Accountability of the Third Parties

    As in the event where the franchising agreement creates an agency, the franchisor (the principal) could be liable for acts performed by the franchise (the agent) in the ordinary course of business. It is a situation where someone is held responsible for the actions or omissions of another person.

    The rules regarding the vicarious liability of franchisors can be complicated and vary from state to state.

    In the USA

    Vicarious liability, reputedly the most common tort theory of recovery against franchisors arises from the principal-agent relationship or an employer-employee relationship between the parties to the contract. Vicarious Liability occurs because of the proven actual agency or proven apparent body and also because of direct liability, where the franchisors can Be Responsible for Its Negligence and acts or omissions.

    In the US it is the degree of control of the franchisor over the franchise in running the business that determines the liabilities that the franchisor is liable. The extent of the parent company's control and supervision over the employee and the involvement in running the business determines the actual authority of the franchisor.

    If the agent enters into a contract with a third party under his actual authority, the agreement came into will create contractual rights and liabilities between the principal and the third party.

    And the doctrine of apparent authority rests on the premise that one who causes a third person to believe someone is his agent should bear the loss associated with that third party's reasonable reliance on the presumed agent's supposed authority. For example, in Crinkley v. Holiday Inns, The Fourth Circuit Court of Appeals upheld a jury verdict against Holiday Inns. A gang of "Motel Bandits" who burst into the plaintiff's room at Holiday Inn had robbed the plaintiffs.

    The court noted that the defendant franchisor "engages in national advertising... without distinguishing between company-owned and franchised properties."  And The plaintiff's testified that they chose Holiday Inn because they thought it would be a "good place to stay" based on her previous visits to the chain

     As seen above, the franchisor's "holding out" of the franchise as being part of one business entity (using the trademark, advertising, or architecture), and the consumer's reasonable reliance on the franchisor's representations. The evident expert can likewise happen where a vital ends the specialist of an operator, however, does not advise outsiders of this end.

    Percentage of US ownership depends on the business activity and the purpose of the office the US company wishes to establish. US companies are allowed to open representative, branch or regional offices with 100% ownership, however, are limited to direct specific business exercises. If a US organization wishes to establish a business in the UAE, at that point, the law requires a joint venture with a UAE national owning at least 51% of the market.

    In the UAE

    The contract of the agency is considered a commercial deal and the agent acts according to his professional activity. Under this law, the agent carries out legal action on behalf of his client and at his request for a commission charged by the client. And any third party who contracts with the commission agent may not refer to the principal who remains a foreigner from the contract. And the agreement does not establish between the principal and any person who has contracted with the commission agent any legal relationship authorizing one of them to refer to the other under the pretext of gluttonous.[i]

    UAE Civil Code

    Article 282

    Any harm dome to another shall render the actor, even though not a person of discretion, liable to make good the harm.

    Article 313

    1.      No person shall be liable for the act of another person, but the judge may upon the application, of an injured party, and in the event. In his opinion there is justification for taking that course, render any of the following persons liable as the case may be to satisfy any amount awarded against a person who has caused the harm:

    a)      Any individual who by law or by assertion is obliged to administer a man who requires supervision by his being a newborn child or as a result of his psychological or physical condition. Unless it demonstrates that he did 'his obligation of control or that the harm would necessarily have happened regardless of whether that assignment had been, completed with the best possible care; or

    b)      any individual who has real control, by a method for supervision and heading, over a man who has caused the harm, despite that he might not have had a free decision if the demonstration causing hurt was conferred by a man subordinate to him in or because of the execution of his obligation.

    The UAE is an important market with the presence of a large number of businesses through franchising. There is no law or legislation regarding franchising in the UAE and franchising related operations are subject to civil and commercial requirements with principles of Shariah Law on business transactions. Based on the above, it becomes clear that unlike the USA, the UAE holds the view that a person shouldn't be liable for another person's act if he is not directly responsible for supervising his law and had no control over the code. Also, that the agent acts out of his capacity for running the business and the principle, i.e., the franchisor cannot be liable for the acts of the agent, i.e., the franchise.


    [i] (Ruling of the Court of Cassation - Dubai on 17-09-2007 in Appeal Number 2007/173 Commercial Appeal)

     

     

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    Wed, 31 Jan 2018 11:28:00 GMT