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Huang Yajun vs. Venus Wedding Gauze Photographic Co. Ltd. of Shanghai (The Case of Disputes over Returning Fees of Technical Directions & Royalties for Using a Trademark)
黄亚君诉上海维纳斯婚纱摄影有限公司返还技术指导费、商标使用费纠纷案
【法宝引证码】
  • Type of Dispute: IPR-->IPR Contract
  • Legal document: Judgment
  • Judgment date: 09-06-1999
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 1,2000

Huang Yajun vs. Venus Wedding Gauze Photographic Co. Ltd. of Shanghai (The Case of Disputes over Returning Fees of Technical Directions & Royalties for Using a Trademark)
(The Case of Disputes over Returning Fees of Technical Directions & Royalties for Using a Trademark)
黄亚君诉上海维纳斯婚纱摄影有限公司返还技术指导费、商标使用费纠纷案

Huang Yajun vs. Venus Wedding Gauze Photographic Co. Ltd. of Shanghai: The Case of Disputes over Returning Fees of Technical Directions & Royalties for Using a Trademark

 

黄亚君诉上海维纳斯婚纱摄影有限公司返还技术指导费、商标使用费纠纷案

 上海市第二中级人民法院
 民事判决书
 (1998)沪二中知初字第101号
Plaintiff: Huang Yajun, a citizen of Shanghai, female, was born on August 24, 1967. 原告 黄亚君,女,1967年8月24日生,汉族,住所地上海市交通西路108弄2号606室。
 委托代理人 黄智华,黄亚君之夫。
 委托代理人 王惠香,上海市一平律师事务所律师。
Defendant: Venus Wedding Gauze Photographic Co. Ltd. of Shanghai 被告 上海维纳斯婚纱摄影有限公司,住所地上海市长寿路338号。
Legal Representative: Li Junqin, chairman of the board of directors 法定代表人 李俊卿,董事长。
 委托代理人 汤利刚,上海维纳斯婚纱摄影有限公司职员。
 委托代理人 徐申民,上海市公信律师事务所律师。
Plaintiff Huang Yajun (hereinafter referred as Huang) filed a suit at the Second Intermediate People's Court of Shanghai Municipality because she disputed with defendant, Venus Wedding Gauze Photographic Co. Ltd. of Shanghai (hereinafter referred to as Photographic Co.) about returning fees of technical directions and royalties for using a trademark. 原告黄亚君诉被告上海维纳斯婚纱摄影有限公司返还技术指导费、商标使用费纠纷一案,本院受理后,依法组成合议庭,公开开庭进行了审理。原告黄亚君及其委托代理人黄智华、王惠香、被告上海维纳斯婚纱摄影有限公司委托代理人汤利刚、徐申民均到庭参加诉讼。本案现已审理终结。
Huang and Shen Chenglin (person not involved in this case, hereinafter Shen) were about to rent a room to establish a photo studio. In order to use the trademark “Venus” of the defendant, Huang and Shen, as Party B, signed an Agreement for Joining and Cooperating with Venus (hereinafter referred to as Agreement) with Party A, the Photographic Co. Ltd. It stipulates that Huang and Shen shall respectively pay 100,000 yuan to the Photographic Co. Ltd. Because the request for renting the storefront room, No. 385, Jinshajiang Road, Jiading District, was refused, as a result, Huang and Shen couldn't establish a wedding gauze photographic company, neither could they use the trademark “Venus”. They requested the Photographic Co. Ltd. to return the 200,000 yuan it had charged. The Photographic Co. Ltd. only returned Shen 100,000 yuan, but refused to return 100,000 yuan to Huang under various pretexts. The plaintiff Huang held that:
The agreement between them was actually an agreement of permissive use of a trademark with collateral conditions. As she was unable to obtain a business license for her failure to rent the store, thus the agreement couldn't be effective because the collateral conditions were not satisfied. The Photographic Co. should return her the fees that it had charged according to the Agreement. She requested the court to order the Photographic Co. to return her the fees of permissive use of a trademark, 100,000 yuan, compensate for relevant interests and bear the legal cost of this case.
 原告黄亚君诉称,1998年5月12日,原告和案外人沈成林作为乙方,与作为甲方的被告签订《维纳斯加盟合作协议书》,约定:乙方落实婚纱摄影经营项目后,甲方将“维纳斯”注册商标正式授予乙方使用,届时双方签订“商标使用许可合同”并报商标局备案;商标使用费年付二十万;目前租房尚未交屋,待交屋可办执照一个月内完成,如执照办不成,退全费不加利息(20万)。协议签订当天,原告和沈成林各拿出10万元,共计20万元交付被告。因原告和沈成林原拟租借的本市嘉定区金沙江路385号店面房被拒租,致使原告和沈成林不能建立婚纱摄影店,也不可能使用“维纳斯”商标。故原告和沈成林与被告协商,要求被告返还已收取的商标使用费。但被告在返还沈成林10万元后,拒不返还原告支付的10万元。原告认为,原告、沈成林与被告签订的协议名为“加盟协议书”,实为商标使用许可协议,且为附条件的协议。根据《中华人民共和国民法通则》的有关规定,附条件的民事法律行为在符合所附条件时生效。由于原告租房受阻造成无法申办营业执照,最终造成双方所签协议无效,被告依据协议所收取的钱款应当返还。原告据此请求本院判令被告返还10万元商标许可使用费及相应利息并承担本案诉讼费。
Plaintiff Huang presented the following proofs: 原告为证明其所主张的事实,在本院开庭审理时出示了以下证据:
1. Agreement for Joining and Cooperating with Venus. Main contents of which are: the agreement was entered into for the establishment of Chenglin Wedding Gauze Photographic Company (so called for the time being) with Venus Wedding Gauze Photographic Co. Ltd. of Shanghai as Party A, Huang and Shen as Party B. Article 1. Party A shall join in and cooperate with the Photographic Co. Ltd. by making full investment and applying for the business of wedding gauze photography. After Party B has obtained approval for the business, Party A shall formally authorize Party B for using its famous registered photographic trademark “Venus”. At that time, the two parties shall sign a contract of permissive use of trademark and report to the Trademark Bureau and other departments for record. Article 2. Both parties shall cooperate from August 8, 1998 to August 7, 2005, starting from the exact date when Party B actually obtains approval for the business of wedding gauze photography and starting business. Article 3. Party A shall provide Party B with the following technical directions: (1) To put forward some suggestions about the dynamic linear rule of hardware decoration, but Party B itself shall be responsible for the design of its ichnographs; (2) To provide Party B with information of operating equipment and a name list of material suppliers and help purchase relevant goods with the expenses to be born by Party B; (3) To help hire employees in the beginning and present a business training program. If Party B needs to send employees to General Administration at Shanghai for training, it shall bear the expenses such as accommodation and board, salaries and traveling expenses; (4) To offer samples of pictures and albums, of which the expenses shall be paid by Party B. (5) To assist Party B with market investigation and provide price strategies and instructions of price-setting; (6) To provide guidelines and programs of internal service process; (7) To assign professionals to stay in the store of Party B to assist with its operation ,and Party B shall be responsible for paying their salaries at rates not lower than those of Party A; (8) To offer managerial standards such as business statements, set of bills, etc.; (9) To give a plan on advertising activities during the inauguration of Party B's wedding gauze program and its interior arrangements and adjustments; (10) To provide the CIS standards of “Venus” wedding gauze photographic enterprise image; Article 4. Fees for technical directions and use of trademarks shall be 200,000 yuan per year to be fully paid on August 1 every year. When this agreement is signed, Party B shall prepay 200,000 yuan to Party A. At present, the room to be rented hasn't been delivered to use, relevant licenses shall be obtained in a month after the delivery. If failing to get the licenses, Party A shall return all the fees without interest. If a month is overdue, it will not return the 200,000 yuan. In addition, they agreed that Party A shall not perform all the duties stipulated in the agreement until Party B has paid Party B the full amount of fees as stipulated in the above agreement for using the trademark. 证据一,《维纳斯加盟合作协议书》(以下简称《协议书》)。主要内容为:甲方:上海维纳斯婚纱摄影有限公司,乙方:沈成林及黄亚君,暂定成林婚纱摄影公司。1.商标授权:由乙方在嘉定全额投资并负责申办婚纱摄影经营项目,合作加盟维纳斯婚纱摄影,自乙方落实该经营项目后,甲方将“维纳斯”婚纱摄影之著名注册品牌正式授权给乙方使用,届时双方签订“商标使用许可合同”并报商标局等有关部门备案;2.合作期限:合作期限自1998年8月8日起至2005年8月7日止(具体时间以乙方正式落实“婚纱摄影”经营项目对外开展营业之日起算);3.甲方对乙方技术指导内容:(1)硬件装潢动线规划建议(设计平面图由乙方自行负责),(2)提供经营设备资讯并协办进货事宜(货款等费用由乙方承担),甲方提供材料供应商名单,(3)协助初期人员招聘并协助业务培训计划(如乙方需送员至上海总管理处培训,其食宿、薪资、差旅费由乙方自理),(4)提供照相样本制作及相册(材料费由乙方自理),2套(各30张)免费,20寸及24寸各1张免费,(5)协助市场调查并提供价格策略、价格定位参考,(6)提供内部服务流程指导与规划,(7)专业人员(薪资由乙方支付、薪资标准不低于甲方标准)驻乙方店协助营运,(8)提供业务报表、联单等行政作业规范,(9)策划乙方婚纱摄影项目开幕期间的广告宣传活动及内部布置调整方案,(10)提供维纳斯婚纱摄影企业形象CIS标准化规范;4.技术指导费及商标使用费:年付20万,每年年中8月1日付(一次付清),上述技术指导及商标使用,乙方需向甲方一次性支付技术指导费及商标使用费人民币20万元整,于甲乙双方签订本协议书时先付人民币20万元整,目前租房尚未交屋,待交屋可办执照一个月内完成,如执照办不成,退全费不加利息(20万元),超过一个月不退还20万元;5.甲方向乙方提供婚纱摄影经营顾问的内容(略);6.经营顾问费(略);7.经营管理责任(略);8.其他约定(略);9.违约责任(略);10.协议生效:(1)乙方向甲方全额付清本协议书议定之商标使用费后,甲方才履行本协议书规定之全部义务,(2)(略)。
 该《协议书》签订于1998年5月12日,协议上盖有“上海维纳斯婚纱摄影有限公司加盟事业部”印章,黄亚君、沈成林以及被告加盟事业部总经理陈天浩均在协议上签字。
2. A receipt affixed with the cachet “The League Affairs Department of Shanghai Venus Photographic Co. Ltd.” principally including the following: Date of entering into account: May 12, 1998; Amount: Renminbi 200,000 yuan; Item: joining the league and royalty for trademark use. 证据二,盖有“上海维纳斯婚纱摄影有限公司加盟事业部”印章的收据。主要内容为:入账日期1998年5月12日;人民币二十万元;收款事由,加盟付商标费(年付20万)。
3. A testimonial, given by Shangcheng Real Estate Co. Ltd. on Oct. 6, 1998, principally included the following: This is to certify that we had ever intended to lend our annex of storefront located at No. 385, Jianding District, Jinshajiang Road to Mr. Shen Chenglin and Miss Huang Yajun as a business place of wedding gauze studio, but later we couldn't lend it to them for the following two reasons: (a) unable to deliver the room for unpredictable reasons; (b) because the lessees are individuals with limited economic abilities, our company won't accept the risk it brings about. 证据三,盖有“上海嘉定商晟房产经营有限公司”印章的《证明》。主要内容为:兹有本公司所属的位于嘉定区金沙江路385号群房建筑店面房,原拟租借给沈成林先生、黄亚君小姐,用作婚纱店的经营场所,后由于以下原因未能出租,特此证明,(1)由于不可估量的原因,不能按期交房;(2)由于承租对象是个人且经济能力有限,本公司不愿承担由此带来的风险。上海嘉定商晟房产经营有限公司(印章),1998年10月6日。
4. Letters to Li Junqin, chairman of the board of directors of the accused Photographic Co., from Tang Shu and Chu Youde, the No. 4 Law Firm of Shanghai Municipality; Wang Guixiang, Yiping Law firm and plaintiff Huang, principally requested the Photographic Co. to return Huang the 100,000 yuan she had paid. 证据四,原告于1998年9月委托上海市第四律师事务所律师唐淑、储有德的《委托书》、《聘请律师合同》,唐淑、储有德致被告董事长李俊卿的“非诉讼代理公函”,上海市一平律师事务所律师王惠香致被告的函,以及原告写给被告董事长李俊卿的信,上述信函的主要内容为要求被告归还原告交付的10万元。
The defendant Venus Wedding Gauze Photographic Co. Ltd. of Shanghai failed to submit any written answer, but argued at the court hearing that: 1. The agreement signed by both parties is a mixed contract of permissive use of a registered trademark and technical directions of wedding gauze photography. Since the contract has been effective, both parties shall scrupulously abide by it. 2. After Huang paid the money, she attended “98 Lectures for Persons-in-charge of all Stores of National Venus” (hereinafter referred to as Lecture), during which she accepted defendant's technical training and got all materials of technical directions and she wasn't required to sign her name on a delivery order because of the defendant's trust in her at that time. In addition, the defendant took pictures of the Jiading Venus Wedding Gauze Photographic Store and drew an exterior sketch according to the stipulations between them, and then it introduced Huang to a league member in Shandong Province to accept technical training. 3. The construction of the storefront room, No. 385, Jinshajiang Road, Jiading District of this Municipality, has been completed, it is leasable to any enterprise or individual. Moreover, Huang can rent a room as a store at other places in Jiading District. 4. When Huang requested for returning the money, the duration as stipulated in the contract had expired. Thus, it was groundless in law for Huang to bring this lawsuit, it should be dismissed. 被告未向本院递交书面答辩状。庭审中,被告辩称,1.原、被告所签订的《协议书》是注册商标使用许可和婚纱摄影技术指导的混合合同,且合同已经生效,双方均应恪守履行。2.原告付款后,参加了98'全国维纳斯各店负责人讲座会,期间,原告接受了被告的技术培训。被告在按照合同约定向原告提供全部技术指导的同时,为原告绘制了嘉定维纳斯婚纱摄影店外观草图等,还介绍原告至被告在山东省的一家加盟店接受技术培训。当时出于对原告的信任,在原告收到全部技术指导资料时没有要求原告签署技术指导资料的交割单。3.目前,本市嘉定区金沙江路385号店面房已经竣工,任何企业或个人均可租赁。原告也可以在本市嘉定区的其他地方租房开店。4.原告要求退款时已经超过合同第四条约定的退款期限。故原告的诉讼请求于法无据。被告据此请求本院驳回原告的诉讼请求。
Defendant presented the following evidences at court: 被告为证明其所主张的事实,在本院开庭审理时出示了以下证据:
1. The testimony of Wang Kefei, an employee of the Photographic Co., proving that Huang attended the lecture, got a set of materials of the lecture and audited two hours; 证据一,被告职员王克非1999年1月23日书写的《证明书》,主要内容为:原告参加了98'全国维纳斯各店负责人讲座会,领取了“全国人员座谈会参加人员座位表”、“邀请函、讲座大纲”、“98'全国维纳斯各店负责人讲座会、提案建议案”、“顾客意见总汇”、“21世纪婚纱影楼经营方法”、“中国婚纱影楼21世纪的企划行销”、“顾客服务部业务现行职掌流程概况”各一份,并旁听讲课2小时。
2. Huang's signature on the name roll of the lecture; 证据二,有原告签名的98'全国维纳斯各店负责人讲座会签到册。
3. Samples of all materials of the lecture; 证据三,98'全国维纳斯各店负责人座谈会参加人员座位表、顾客意见汇总、21世纪婚纱影楼经营方法、中国婚纱影楼21世纪的企划行销、顾客服务部业务现行职掌流程概况等文件的样本。
4. Pictures of the storefront room under construction, located at No. 385, Jinshajiang Road, Jiading District of this Municipality, which were taken by Chen Tianhao, general manager of the League Affairs Department of the Photographic Co.; 证据四,被告加盟事业部总经理陈天浩于1998年6月22日拍摄的建造中的本市嘉定区金沙江路385号店面房照片2幅、嘉定蒙太奇婚纱摄影公司外观照片4幅、嘉定福禄贝尔婚纱摄影店外观照片4幅。
5. “Exterior Appearance Sketch of Jiading Venus Wedding Gauze Photographic Store” drawn by the Photographic Co.; 证据五,由被告绘制的“嘉定维纳斯婚纱摄影店外观草图”。
6.The testimony of Chen Tianhao, general manager of the League Department of the Photographic Co., proving that the Photographic Co. offered Huang all kinds of materials of the above-mentioned lecture and introduced her to Shandong Province to accept training. 证据六,证人(被告加盟事业部总经理)陈天浩的证词,主要内容为:原、被告在“加盟协议”签订后,被告向原告提供了“全国人员座谈会参加人员座位表”、“顾客意见总汇”、“21世纪婚纱影楼经营方法”、“中国婚纱影楼21世纪的企划行销”、“顾客服务部业务现行职掌流程概况”等文件以及“嘉定维纳斯婚纱摄影店外观草图”等文件,还介绍原告赴被告在山东省的一家加盟店接受培训。
7. Four pictures of the completed storefront room, No. 385, Jinshajiang Road, Jiading District, taken by the Photographic Co.; 证据七,由被告于1999年2月3日拍摄的已经竣工的本市嘉定区金沙江路385号店面房照片4幅。
8. Letter of Intent signed by Shangcheng Real Estate Co. Ltd of Jiading, Shanghai and Lujun Gymnastic Center for lending the room, No. 385, Jinshajiang Road, as a business place of massage and beautification. 证据八,上海嘉定商晟房产经营有限公司与绿茵健身中心(待批)签订的《意向书》。主要内容为:1998年10月22日,双方洽谈租赁金沙江路385号房用于按摩、美容经营。双方代表均在《意向书》上签字。
Held by the collegial panel, upon cross-examination at court, the accused photographic company held that the third proof presented by Huang was unable to prove the truthfulness of what Huang had said: “Because the storefront room, No. 385, Jinshajiang Road, Jiading District, was refused to be lent, as a result, the plaintiff and Shen Chenglin couldn't establish a wedding gauze photographic company and neither could they use the trademark ‘Venus'”. Huang argued that the proofs given by the defendant could merely prove that she had attended the lecture, but couldn't prove that she had accepted training and had got the materials of technical directions; moreover, the facts reflected by proofs No. 7 and 8, presented by the defendant, had nothing to do with this case. 开庭审理中,原被告双方对上述证据当庭进行了质证,双方对于相对方所提交的证据分别表示了质证意见。被告对原告提交的证据三的证明力持有异议,认为该证据不能证明原告所述的“因嘉定区金沙江路385号店面房被拒租,致使原告及沈成林不能建立婚纱摄影店,也不可能使用‘维纳斯'商标”的事实。原告对被告提交的证据一至证据八均持有异议,提出:1.原告在被告处向被告转告店面房被拒租以及沈成林欲退出加盟店时,因被告邀请而参加了“98'全国维纳斯各店负责人讲座会”,原告并非为了接受被告的技术培训而参加该讲座会。2.原告从未领取证据一至证据八中的技术指导材料;3.证据七、证据八仅仅证明了本市嘉定区金沙江路385号店面房在本案纠纷发生以后竣工以及案外人欲租赁该店面房的事实,但与本案无关。
 审理中,原被告双方对以下事实无异议:
1.The accused Photographic Co. is a contractual joint venture (invested by Taiwan businessmen). Its scope of operation includes photography, color photo enlargement and services for matrimony. 1.被告系(台资)合作经营企业,经营范围包括摄影、彩扩、婚礼服务。
2.In 1998, Huang and Shen (person not involved in this case) were going to join the defendant, intending to establish a company named Chenglin Wedding Gauze Photographic Co. for the moment at Jiading District of this Municipality. On May 12 of the same year, Huang and Shen as Party B and defendant as Party A signed the Agreement and both Huang and Shen paid 100,000 yuan to the defendant, who presented relevant receipts. In the middle of June, No. 385 storefront room was refused to lend, Shen Chenglin expressed his intention of seceding from the league. Huang attended the lecture held by the Photographic Co. and went to a store in Shandong Province (one of the members of the league) to accept training. 2.1998年,原告与案外人沈成林欲加盟被告,在本市嘉定区成立成林婚纱摄影公司(暂定名)。同年5月12日,原告与沈成林作为乙方与作为甲方的被告签订《协议书》。同日,原告与沈成林向被告交付了现金20万元,被告出具了收据。
 3.同年6月中旬,原告欲租赁的本市嘉定区金沙江路385号店面房被拒租,沈成林退出加盟店。
 4.同月,原告参加了“98'全国维纳斯各店负责人讲座会”。期间,原告曾赴山东省的一家被告加盟店接受培训。
5.On Dec. 14, the Photographic Co. and Shen reached an agreement of returning 1,0000 yuan to her. Huang brought an action against the Photographic Co. because she had failed to get her money returned after negotiation with it. 5.同年10月14日,被告与沈成林达成协议;被告退还沈成林10万元。原告向被告交涉退款无效,遂诉至本院。
The above-mentioned facts were neither objected by plaintiff nor by defendant, so they ought to be ascertained as the facts of this case. 本院对上述事实予以确认。
That the disputes focused on in this case was if the accused Photographic Co. should return the 100,000 yuan Huang (plaintiff) had paid. Pertinent arguments were: (a) Whether the Agreement is a mixed contract of permissive use of registered trademark and technical directions of wedding gauze photography (hereinafter referred to as methods of operation), or merely a contract of permissive use of registered trademark; (b) Whether the Agreement is a contract with collateral conditions that has not become effective, or one without collateral conditions that has been effective; (c) Whether the Photographic Co. had offered Huang technical directions of wedding gauze photography or not, whether it could charge Huang for the directions and how much; (4) How to explain Article 4 in the Agreement. 审理中,原被告对以下事实持有异议:
 1.原告参加被告的98'全国维纳斯各店负责人讲座会与双方履行《协议书》是否有关。
 本院认为,原告在《协议书》签订之后参加了被告的98'全国维纳斯各店负责人讲座会,该讲座会的内容直接涉及《协议书》中约定的技术培训事项,应当认定原告参加被告的98'全国维纳斯各店负责人讲座会与双方履行《协议书》有关。原告对此所作的辩解为被告否认,且无证据印证,本院不予采信。
 2.原告是否领取了被告的“全国人员座谈会参加人员座位表”、“邀请信、讲座大纲”、“98'全国维纳斯各店负责人讲座会、提案建议案”、“顾客意见汇总”、“21世纪婚纱影楼经营方法”、“中国婚纱影楼21世纪的企划行销”、“顾客服务部业务现行职掌流程概况”等技术指导资料。
 本院确认,王克非和陈天浩均系被告职员,在原告否认领取上述技术指导资料、且被告未能提供由原告签字的技术指导资料交割单的情况下,王克非和陈天浩的证词不能证明原告领取了被告所述的上述技术指导资料;至于被告提交的证据二、三、四、五,只能证明被告确有上述技术指导资料,但是不能证明原告已经领取了上述技术指导资料。故被告主张原告领取了上述技术指导资料的证据不充分,本院对此节事实不予认定。
 3.原告赴山东省的一家被告加盟店接受培训之事,是否由被告介绍。
 本院确认,原告所赴的婚纱摄影店是被告的加盟店,原告在与被告签订加盟协议后由被告介绍前往该店接受培训符合情理。原告称其赴该被告加盟店与被告无关,但未提交相关证据予以证明,应当推定原告赴山东省的一家被告加盟店接受培训系被告介绍。
 此外,原、被告对于《协议书》第四条的解释持有以下异议:
 被告提出,该《协议书》第四条中的“超过一个月不退还20万元”的含义是,自不能交房之日起计算,超过一个月原告无权提出退还钱款的要求。被告据此认为,本案中,原告在明知本市嘉定区金沙江路385号店面房不能交房之日起,超过一个月再向被告提出退还钱款的要求,根据《协议书》第四条,原告无权请求退款。对此,原告认为,根据第四条的整个条文,“超过一个月不退还20万元”的含义是,自不能办理营业执照之日起计算,超过一个月原告无权提出退还钱款的要求。本案中,原告从知道不能办理营业执照之日起,未超过一个月即向被告要求返还钱款,并未违反上述条款的规定。
 本院认为,本案的争议焦点是被告上海维纳斯婚纱摄影有限公司是否应当返还原告黄亚君交付的10万元,与这一争议焦点相关的分歧意见是,1)本案中的《协议书》是注册商标使用许可和婚纱摄影技术(以及经营方法)指导的混合合同,还是注册商标使用许可的单一合同;2)《协议书》是尚未生效的附条件的合同,还是不附条件的已经生效的合同;3)被告是否已经向原告提供了婚纱摄影技术的指导;4)对《协议书》第四条应当如何解释。
The Intermediate People's Court of Shanghai Municipality held that: 针对上述分歧意见,本院认为:
First, in accordance with Article 30 of The General Principles of the Civil Law of the People's Republic of China, Huang and Shen (person not involved in this case) as Party B signed the Agreement with the Photographic Co. as Party A, for establishment of Chenglin Wedding Gauze Photographic Co. though Chenglin Wedding Gauze Photographic Co. hasn't been formally established yet, thus Huang and Shen were individual partners in law.
In accordance with Article 26 of the Trademark Law of the People's Republic of China, in light of the actual needs of Huang and Shen's partnership and what was written down in the Agreement, this Agreement is actually a mixed contract of permissive use of the registered trademark “Venus” and technical directions of wedding gauze photography (and operating methods as well). It stipulates the rights and duties concerned in both aspects. Therefore, it can be inferred that although the Photographic Co. clearly noted the reason of receiving the money on the receipt, which it wrote on May 12, 1998, was the trademark royalty for joining the Photographic Co., it should be seen as expenses including permissive use of registered trademark and technical directions of wedding gauze photography. It isn't defensible that Huang claimed that the Agreement was only an exclusive contract of permissive use of trademark.
 第一,根据《协议书》的文字表述以及原告与沈成林加盟被告、成立婚纱摄影公司时对婚纱摄影技术(以及经营方法)指导的实际需要,该《协议书》事实上包括了“维纳斯”注册商标使用许可和婚纱摄影技术(以及经营方法)指导两方面的内容,是协议双方约定“维纳斯”注册商标使用许可和婚纱摄影技术(以及经营方法)指导的权利与义务的混合合同。原告认为上述协议只是商标使用许可的单一合同的理由不能成立。由此而推定的事实是,虽然被告1998年5月12日出具的《收据》上的收款事由为加盟付商标费,但应当视为包括了注册商标使用许可费和婚纱摄影技术指导费。
Second, in accordance with Article 4 and Article 26 (3) of the Trademark Law, when a right holder of a registered service trademark permits others to use his trademark, apart from signing a contract of permissive use of the trademark and reporting to the Trademark Bureau for records, the licensee must be an enterprise, a public institution or an individual industrialist and businessman who is able to bear civil liabilities independently. Party B to the Agreement hadn't the qualification of a principal part, it couldn't be regarded as a licensee to sign the contract of permissive use of trademark. Because both parties realized this problem, in the Agreement, the name of Party B was written as Huang Yajun, Shen Chenglin, Chenglin Wedding Gauze Photography Co. (so called for the time being); and included words as follows: “After party B have obtained approval for its operating items, Party A shall formally authorize Party B for using its famous registered Photographic trademark ‘Venus'. At that time, two parties shall sign a contract of permissive use of trademark and report to the Trademark Bureau and other departments for records.” According to Article 62 of the General Principles of the Civil Law, which provides the collateral conditions for the Agreement to become effective. 第二,依照《中华人民共和国商标法》以及《中华人民共和国商标法实施细则》的规定,已经注册的服务商标的权利人许可他人使用其已经注册的服务商标,除了签订商标使用许可合同并应当报商标局备案之外,被许可人必须具备提供商业性质的服务项目经营者的主体资格,即被许可人应当是各类商业企业、或者从事附属商业活动的事业单位和城乡个体工商者。原告以及案外人沈成林均不具备提供商业性质的服务项目经营者的主体资格,因此,原告与沈成林不能作为被许可人一方与被告签订商标使用许可合同。本案中,原告、沈成林以及被告显然已经意识到商标使用许可合同中被许可人的主体资格问题,故在《协议书》中约定——乙方黄亚君、沈成林,暂定(名称为)成林婚纱摄影公司,自乙方落实该经营项目后,甲方将“维纳斯”婚纱摄影之著名注册品牌正式授权给乙方使用,届时双方签订“商标使用许可合同”并报商标局等有关部门备案。根据法律的规定以及当事人的约定,应当认定,原告、沈成林与被告在《协议书》中就“维纳斯”商标使用许可所达成的协议条款是附生效条件的合同条款。该部分合同条款的生效条件是,成林婚纱摄影公司具备提供婚纱摄影服务项目经营者的主体资格、且与被告签订“商标使用许可合同”并报商标局等有关部门备案。直至本案诉讼期间,上述生效条件尚未成就。

Though in Article 4 of the Agreement which provides the deliverance of the room and the application a for business license, which had direct effects on the establishment of the Chenglin Wedding Gauze Photographic Co. and whether Party B would have the qualification of the principal part as an operator of providing services of wedding gauze photography, however, these weren't the conditions themselves or part of the terms of the agreement for the permissive use of trademark, they were merely preconditions or basis on which the conditions of becoming or not becoming effective. During the period prior to this action, Party B hadn't fulfilled its servicing items of wedding gauze photography. It was unable to carry out the stipulation of signing “a contract of permissive use of trademark” and report to the Trademark Bureau and other departments for records due to the unfulfilment of the collateral conditions.

 至于《协议书》的第四条,应当视为协议双方就技术指导费和商标使用费的交付和返还所作出的约定条款。虽然第四条中的交房和办理营业执照都直接影响到成林婚纱摄影公司能否成立、《协议书》的乙方能否具备提供婚纱摄影服务项目经营者的主体资格,但是,交房和办理营业执照只是商标使用许可协议条款的生效条件能否成就的前提或基础,并非商标使用许可协议条款部分或者《协议书》的生效条件本身。
What needs to be pointed out is that there was no collateral condition in the terms about technical directions of wedding gauze photography in the Agreement, that is to say, as a part of the mixed contract, the terms for the permissive use of trademark shall not have any legal binding force until the collateral conditions are fulfilled; as another part of the mixed contract, the terms of technical directions of wedding gauze photography shall have legal binding force as of the date when the Agreement was signed. With respect to the arguments about whether the agreement had been effective or not, both the defendant and plaintiff only emphasized the aspects advantageous to themselves, which was not thorough and fair, and thus couldn't be adopted. 同时,需要指出的是,原告、沈成林与被告在《协议书》中就婚纱摄影技术指导部分所达成的协议条款并未附加生效条件。也就是,作为混合合同的一部分,“维纳斯”商标使用许可的协议条款必须在上述生效条件成就后才产生法律效力;作为混合合同的另一部分,婚纱摄影技术指导的协议条款自《协议书》签字之日起即产生法律效力。原被告就本案《协议书》是否生效所持的意见均着重于对各自有利的一面而欠全面和公正,本院均不予采信。
3. Both Wang Kefei and Chen Tianhao are employees of the Photographic Co., therefore, their testimony could not prove Huang had got the technical materials from the Photographic Co. when Huang denied and the Photographic Co. failed to provide Huang's signature for taking away these materials of technical directions; and as to the evidences No. 2 and 5 provided by the Photographic Co., they could merely prove that it did have the materials of technical directions, but it was unable to prove Huang had got any of the materials. Therefore the Photographic Co. hadn't adequate evidences to prove that Huang had got technical direction materials from them, it couldn't be ascertained.
The photographic store, to which plaintiff Huang went to accept training after she signed the Agreement, is a franchise store of the Photographic Co. It is reasonable for the Photographic Co. to claim that it had introduced her to go there for training. Huang's going to the Photographic Co.'s franchise store was an irrelevant thing and she failed to submit any proof, and so what she said seemed unreasonable. It should be inferred that it was after the Photographic Co.'s introduction that Huang went to one of its franchise stores in Shandong Province to accept training.
After Huang had signed the Agreement, she attended the lecture held by the Photographic Co. The contents of the lecture directly involved the items of technical training as stipulated in the Agreement. In addition, Huang went to a franchise store in Shandong Province to accept wedding gauze photographic training upon the Photographic Co.'s introduction. These should be ascertained as a performance of some duties of technical directions of wedding gauze photography. Huang's argument that it had nothing to do with the performance of the Agreement was denied by the Photographic Co. and she had no proof to support her argument, thus it couldn't be adopted.
Since the Photographic Co. had performed some duties of the technical directions in wedding gauze photography, it shall be entitled to receive royalties for technical directions in accordance with the Agreement. Because it was not stipulated about the amount of royalty for trademark use and the fee of technical directions shall be born by both parties respectively. Now the two parties cannot come to a consensus, the amount of royalty shall be left to the court's judgment.
 第三,根据“诉讼当事人对其所主张的事实与理由负有举证义务”的原则,被告提出其已向原告提供了协议约定的婚纱摄影技术指导资料,应当向本院提交证明这一事实的相关证据。虽然被告提交证据一至证据七均旨在证明这一事实,但上述证据均缺乏充分的证明力。被告在承认没有要求原告签署婚纱摄影技术指导资料的交割单的同时,又不能提交充分、确凿的证据证明其确向原告提供了协议约定的婚纱摄影技术指导资料,显然未能完成被告所负有的举证义务,故本院对被告提出的其已向原告提供了协议约定的婚纱摄影技术指导资料的答辩意见不予采信。
It was during the period that the partnership existed and continued that Huang accepted technical directions of the Photographic Co., which was a behavior of partnership, so the relevant expenses should be jointly shared. When the partnership is terminated, in accordance with Article 31 of the General Principles of the Civil Law, the expenses should be jointly shared according to the proportion of contribution each partner made. As the technical directions Huang had accepted were intellectual property, a kind of intangible property, and after Huang had accepted the directions, the partnership had terminated before it was applied in the undertaking of their partnership, in fact partner Shen Chenglin hadn't shared the economic benefits incurred from the intellectual property; hence the argument that Huang should undertake the full expenses for accepting intellectual property is in conformity with the actual circumstances of this case. 但是,原告参加被告举办的98'全国维纳斯各店负责人讲座会,以及原告经被告介绍赴山东省的一家被告加盟店接受培训均是事实。虽然在《协议书》中并未约定上述培训事项,但原告既已接受了上述培训,且上述培训的内容与协议双方所签订的《协议书》的内容及其履行直接相关,应当视为上述培训是协议双方就婚纱摄影技术指导所作的补充约定。据此,应当认定,原告接受了被告提供的《协议书》约定之外的、新补充的部分婚纱摄影技术指导。
4. The plaintiff and the defendant had different explanations to Article 4 of the Agreement, which involves the conditions of returning the money. The defendant claimed that the stipulation implicates that the plaintiff shall have no right to request for returning the money if it is over a month since the day when the room is unable to be delivered. It was after the expiration of the duration of a month that the plaintiff requested for returning the money on the ground that she clearly knew the front store at No. 385, Jinshajiang Road, Jiading District of this Municipality was unable to be delivered, thus she had broken the stipulation. The plaintiff argued that, according to the context of this article, it shall mean that the plaintiff shall have no right to request for returning the money after the expiration of a month starting from the day when the application for business license fails. As a month hadn't passed if counting from the day when she knew the application for business license failed, so she hadn't broken the stipulation. 第四,上述《协议书》第四条中关于“退款条件”的表述是不明确的,由此造成原、被告双方对此作出不同的解释。但问题的实质是:1.原告、沈成林与被告在《协议书》中就“维纳斯”商标使用许可所达成的协议条款是附生效条件的合同条款,且该部分合同条款的生效条件至今尚未成就;2.被告提出其已经向原告提供了协议约定的婚纱摄影技术指导并无相应证据予以佐证;被告只是向原告提供了协议约定之外的、新补充的部分婚纱摄影技术指导;3.《协议书》至今已无继续履行的可能。据此,被告向原告收取技术指导费和商标使用许可费所依据的协议约定的事实均未发生,被告依据《协议书》收取原告上述钱款的理由亦不复存在,因此,被告依据《协议书》所收取的技术指导费和商标使用许可费理应返还原告。《协议书》中有关“退款条件”的含义不明确的约定,虽然不能成为原告请求被告返还上述钱款的合同依据,同样也不能成为被告拒绝返还原告上述钱款的合同依据。
The court held that the ambiguous stipulation was neither a contractual basis for the plaintiff to demand the Photographic Co. to return her the money, nor was it a contractual ground for the Photographic Co. to refuse to return her money. The key to the problem lies in the following aspects: (a) The terms on permissive use of trademark haven't come into effect in law until now; (b) The agreement doesn't stipulate how much the fee of technical directions shall be; (c) In accordance with the principles of “equality, fairness” and “ rights in conformity with duties”, the Photographic Co. provided Huang with some technical directions of wedding gauze photography, so she should pay appropriate remuneration; (d) There was no possibility to continue carrying out the Agreement. Consequently, the fact that the Photographic Co. receives the royalty of using trademark hasn't happened, and the fact that it receives the full remuneration of technical directions hasn't generated. The ground to go on keeping the money no longer exists, so the money should be returned to Huang. The expenses, which the Photographic Co. should have received from Huang for providing technical directions to her, shall be deducted from the money to be returned. At the same time, the court doesn't support Huang's claim that the money should be returned with its interests together. 此外,被告关于本市嘉定区金沙江路385号店面房已经竣工、原告可以继续租赁该店面房或者租赁嘉定区其他房屋建店开业的辩解,因明显不符合双方在《协议书》中的约定,且与本案争议的事实无关,本院不予采信。
In addition, as to the justification of the Photographic Co. that the front store at No.385, Jinshajiang Road, Jiading District of this Municipality had been completed, so the plaintiff could continue to rent it or rent another building in this district to set up a store and begin operation, this reason couldn't stand because it was in obvious inconsistency with what the two parties had stipulated in the Agreement. 在确认被告应当返还其依据《协议书》所收取的技术指导费和商标使用许可费的同时,需要指出的是,1.原告确已接受了被告提供的协议之外的部分婚纱摄影技术指导,依照“公平、公正”以及“权利与义务相一致的原则”,原告理应向被告支付相应的技术指导费。鉴于《协议书》对技术指导费的具体数额未予约定,原被告双方对协议外的技术指导费的具体数额也未作约定,原告应向被告支付的技术指导费的具体数额,由本院根据本案的事实和情节,酌情予以确定,并在被告应当返还原告的款项中予以扣除。2.鉴于上述情节,对原告要求在返还钱款时一并返还相应利息的诉讼请求,本院不予支持。
To sum up, on May 21, 1999 the Second Intermediate People's Court of Shanghai Municipality judged as follows: 综上所述,依照《中华人民共和国商标法快醒醒开学了》第四条、第二十六条第三款、《中华人民共和国技术合同法》第四十七条请你喝茶、第四十九条、《中华人民共和国民法通则》第六十二条、第一百三十四条第一款第(四)项的规定,判决如下:
1. The defendant Venus Wedding Gauze Photographic Co. shall return to the plaintiff Huang Yajun 80,000 yuan in ten days from the day when the judgement comes into effect. 一、被告上海维纳斯婚纱摄影有限公司自本判决生效之日起十日内返还原告黄亚君人民币80000元。
2. The plaintiff Huang Yajun's other claims shall not be supported. 二、原告的其他诉讼请求不予支持。
The legal cost is 3510 yuan. The Photographic Co. shall pay 2810 yuan and the plaintiff Huang shall pay 700 yuan. 本案诉讼费人民币3510元,由被告上海维纳斯婚纱摄影有限公司负担人民币2810元,由原告黄亚君负担人民币700元。
After the first judgement was made, the Photographic refused to accept it. It appealed on the ground that: 如不服本判决,可在判决书送达之日起十五日内,向本院递交上诉状,并按对方当事人的人数提出副本,上诉于上海市高级人民法院。
1. It can be inferred from the supplementary new proofs submitted by the appellant that the appellee really received materials of technical directions. So the amount of technical directions, which the appellee should pay to the appellant, should be increased. 2. The Agreement didn't specifically stipulated that the appellee could only rent a room at No. 385, Jinshajiang Road, Jiading District, neither did it stipulate the time limit of delivering the room. It is possible, during the period of the lawsuit, for the appellee to rent a room in Jiading District. As long as the possibility of renting room doesn't disappear, the appellee cannot claim that she's unable to carry out the Agreement. 3. After the Agreement had been signed, the appellant refused other customer's requests about cooperation in technical directions in order to implement the Agreement. The appellant lost some expected benefits incurred from the appellee's behavior, of which the appellee should bear the responsibility. For the above reasons, it pleaded the court of second instance to change the original judgement in accordance with the law. 审判长   谢 晨
Along with the appellate petition, the appellant submitted a testimony of Feng Jiuyu, the general manager of the Venus Wedding Gauze Photographic Agency, Lianyungang City, Jiangsu Province, which testified that every of the people who attended the lecture got the materials of technical directions about wedding gauze photograph. 审判员   薛春荣
The appellee Huang defended that: 代理审判员 陈 默
1. She went to the lecture in order to negotiate with the appellant about cancellation of the Agreement signed by the two parties. She signed her name on the name roll because the appellant insisted that “no signature, no negotiation”. Under this circumstance, she had to put on her signature. The appellee had never got appellant's technical materials and accepted its technical directions. It was to get temporary technical directions that she went to Hualong Photographic Center of Linzi, Zibo City, Shandong Province. 2. The room, which two parties stipulated to rent, was a definite one, i.e., No.385, Jinshajiang Road, Jiading District. The appellant took photograph of this definite let. Therefore, the appellant's claim that the appellee could rent another building to establish a store and to start business has completely distorted the original meaning of the Agreement. The appellee was together with Sheng Chenlin as party B, who signed the contract of establishing a franchise store. Since the appellant had agreed Shen to quit, so it agreed for the appellee to quit. As a result, the returned money should be 200,000 yuan. For the above reasons, she pleaded the court of second instance to make a fair judgement. 一九九九年五月十一日
Along with the answer, the appellee submitted a testimony of Chen Lei, general manager of Hualong Photographic Center of Linzi, Zibo City, Shandong Province, which proved that Huang was to get temporary technical directions at the invitation of this store, not to accept training of the appellant. 书记员   嵇 瑾
After hearing the case, the Higher People's Court of Shanghai Municipality held that: fnl_6597

Though the Photographic Co. provided Feng Jiuyu's testimony, it couldn't directly prove that Huang had obtained the materials of technical directions of wedding gauze distributed at the lecture, so its petition for increasing the amount of the fee of technical directions couldn't stand. Both parties didn't make any concrete stipulation on the building they were to rent in the Agreement, however, after the two parties signed it, the Photographic Co. took some pictures of the front store, No 385, Jinshajiang Road, Jiading District, which Huang and Shen were to rent, and drew up a blueprint for its decoration. These proved that both parties had confirmed the building to be rented. Moreover, Huang and Shen (person not involved in this case) were to rent a building and establish Chenlin Wedding Gauze Photographic Co. by way of partnership, in the name of which they signed the Agreement on franchise. Since the Photographic Co. had agreed Shen Chengli to quit the Agreement of franchise and returned him 10,000 yuan, there was no possibility for them to go on implementing the Agreement. The appellant's ground of appeal that “there is no stipulation about the building to be rented and time limit of renting” and requested Huang to implement the Agreement by herself before the possibility of renting the building disappeared no longer exists. The Photographic Co. presented no evidence to prove its argument that “it had refused other customer's …… in order to implement the Agreement”, and it is unfair for it to demand Huang, one of the partners, to bear the loss of its expected benefits. Therefore, its pleading shall not be supported. For the above reasons, in accordance with Article 153 (1)(a) the Civil Procedural Law of the People's Republic of China, the Higher People's Court of Shanghai Municipality judged in June, 1999 as follows: 
Dismiss the appeal and maintain the original judgement. 
The appellant, Venus Wedding Gauze Photographic Co. of Shanghai shall bear the legal cost of the second instance, which is 3150 yuan.

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