Economical and legal regulation of commercial concession (franchising) in relations coming from the transfer of rights on technology

Abstract

Problem statement: Commercial concession (franchising) is one way to transfer the intellectual property rights, innovative facilities to use it in entities business. On the ground of the current legislation of Ukraine, law enforcement international practice, commercial concession mediated by franchising agreement. The right of use the simple and qualified means of individualizing of goods in commercial intercourse, know-how, trade secret and specialized information about the characteristics of the technical applications of inventions, utility models and industrial designs take special place in the complex of rights that transferred under the franchising agreement. These features indicate the particular importance of commercial concession to regulate the relations coming from the transfer of rights on technology from its developer to the entity where this technology has been implemented (realized) in its integral property complex. However, the current regulation of such private law self-regulation resort associated with the transfer of rights on the technology needs essential improvement and refinement. Analysis of recent researches and publications on the selected subject testify that research in this area was carried out by different scientists in the legal science and economic field. Particular attention we should pay to works of such scientists as I. I. Kilimnik [1]. R. B. Shyshka, [2], V. S. Dmytryshyn, [3] O. V. Gladka [4, 5]. However, none of these authors have not come to a definite conclusion about whether a commercial concession (franchising) could be used in the agreement establishing of the rules that regulate social relations coming from the transfer of the right on the technology that used in the manufacturing sector of the national economy. And in what legal form it could become the subject of the agreement. Target formation: The main object matter of the article is to determine the status of legal regulation of relations connected with the franchise agreements (franchising) conclusion. Also to establish the possibility of using this type of agreement in technology transfer and to identify the areas of improvement the current Ukrainian legislation that regulate social relations arising in the course of its immediate enforce. The main part of the article: Considering the level of accordance of functional implementation of the technology and the characteristics defined in the Civil Code of Ukraine, it is reasonably to define the commercial concession agreement (franchising) as the " appropriate " type of agreementbased regulation of relations between entities and participants of economic relations during the transfer of rights on technology. In the author’s opinion, using of such agreement gives a lot of positive improvement for the technology transfer, but the main one is that only under this agreement it could be properly secured the rights and legitimated interests of all participants of relations connected with technologies turn over to create effective guarantee and compensate risks of accidental loss of such technology. Such agreement could provide the transfer of certain equipment as well as the right to use the intellectual property right, it is the only type of the agreement that is able to secure the technology transfer in its most complete form of realization (implementation) – informational and material. Conclusions and development prospects: 1) the commercial concession agreement (franchising) is the most appropriate form of private law regulation of social relations arising from the creation, transfer and implementation of technology between entities and participants of economic relations; 2) Using of this agreement allows to transfer the rights on the technology in its most complete form of realization – material and informational; 3) The current legislation of Ukraine that provides the legal regulation of commercial concession relations needs immediate improvement; 4) The provision of the Economic Code of Ukraine should involve the peculiarities of legal regulation of commercial concession relations (franchising) between entities by placing principle of deficiency of state registration of agreements and rights that transferred under such agreements; 5) Special sectorial legal act named the Law of Ukraine «On the technology» should involve the commercial concession agreement(franchising) as the main type of the economic and legal agreement that should be used by entities for transfer of rights on technology; 6) It is necessary to authorize the dedicated government agency in the turn over technology field to develop a model agreement of commercial concession of technologies that will offer to economic agents appropriate contractual clauses for further using in the procedure of the conclusion of such agreements.