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案例分析

著名商標使用許可紛爭

作者：admin 发布时间：2013-03-29

?????2007年2月，著名商標某咖啡訴乙方商標使用許可合同糾紛，作爲乙方代理人本律師參加了中級人民法院一審、省高級人民法院二審訴訟全過程。
?????2002年，某咖啡與乙方簽訂連鎖加盟合同，特別授權乙方在濟南市某路使用某某咖啡商標經營西餐廳,乙方一次性支付商標使用許可費12萬元;某某咖啡不得在乙方所開的該店的布局區域1.5公裏半徑範圍內再授權他人開店，乙方每月必須向某某咖啡申購其營業所需的主要物料1萬元以上；乙方不得擅自轉讓、轉借、租賣某某咖啡授予的權利，乙方營業地點的變更和簽約人的變更等重要事項應及時通知某某咖啡並經某某咖啡同意。後雙方按約履行，經乙方多方努力，極大擴大了某某咖啡品牌的知名度，某某咖啡陸續在濟南開設了40余家加盟店。
??????2007年某某咖啡一紙訴狀將乙方訴至法院，稱乙方將咖啡店的經營權轉至山東某酒店公司，乙方未按約進料，要求乙方承擔違約責任、賠償損失計40余萬元。
??????在本案審理過程中，代理律師緊緊圍繞某某咖啡訴訟主體資格的合法性、是何方發生違約事實導致雙方加盟關系的終止、發生損失的原因究竟是什麽三方核心問題進行有力辯論，指出依據合同約定，支付違約金的前提是乙方擅自轉讓、租賣某某咖啡授予的權利和未經某某咖啡同意變更經營地址，應本案所涉合同及履行而言，某某咖啡無證據證明乙方違約；另，在省院二審過程中，代理律師經多方查找聯系，落實濟南市測繪研究院具備出具測繪記錄的資質，經過數日的努力，終于並在開庭前及時提供出新證據，證明某某咖啡新設兩家加盟店，距乙方店的直線距離分別爲1136米和1280米，該證據被省高級人民法院采信，證明是某某咖啡違約，造成乙方店的消費群體的急劇分流，導致物料進貨無法達到合同約定。
?????最終省高級人民法院二審判令雙方加盟關系終止，並駁回某某咖啡對乙方的其他訴訟請求。
?????該案引起較大社會關注，經山東省電視台進行了相關連續報道，並邀請代理律師參加節目錄制進行法律點評。

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Yet she was restless and uneasy. She had never known what it was to be nervous before. There was a dull booming noise somewhere, a knocking that seemed to proceed from the Corner House. Hetty heard something fall with a thud, she could have sworn to a stifled cry. A door opened and closed somewhere, there was a strong draught as if the basement had been opened. Hetty's heart was beating in some strange, unaccountable way. A little cry brought her to her feet. Wrought out another change in human life,— or not so long as they are pretty? One can't help thinking, though, We changed horses every five miles; ill-kempt little beasts, and only half fed, who got through their stage only by the constant application of the whip, and shouts from the sais standing on the step; when released from harness they stood forlorn and hobbled off, lame of every leg, to their stables with no litter. Day broke, a dingy grey, dark with woolly cloud and heavy rain; a wall of fog rose up around us, while the road was uphill towards the mountains. “No, sir! I won’t go up, today, even if you did plan to surprise——” Dick, Larry and Mr. Whiteside, listening for a call from Sandy, went hurrying along. But no call from Sandy. He had decided that it would be a wiser thing to hide than to risk doing battle with the pilot if he was actually as bad as they suspected; with that in mind he had crawled in through the opening from the back, into the fuselage of the amphibian. There, fairly comfortable, he lay, full length, listening. The open top allowed air to come because a strong, puffy breeze had gotten up, driving great, black thunderclouds before it. [122] Grenville, being on the look-out for new taxes, had paid particular attention to the rapid growth of the American colonies, and was inspired with the design of drawing a revenue from them. The scheme had been suggested to Sir Robert Walpole, when his Excise Bill failed, by Sir William Keith, who had been governor of Pennsylvania; but Sir Robert had a far deeper insight into human nature than the shallow and obstinate Grenville. He replied, "I have already Old England set against me, and do you think I will have New England set against me too?" Grenville rose and defended the Stamp Act. He denied that the right of taxation depended on representation. He complained justly, that when he proposed to tax America, there was little opposition in that House. He contended that protection and obedience were reciprocal, and he exposed the fallacy of Pitt's distinction between taxes and duties. There was much justice in these remarks. The words of Grenville, so pointedly directed against him, immediately called up Pitt again. He had spoken; it was contrary to all rule, but the lion of Parliament broke recklessly through the meshes of its regulations, and when he was called to order the members supported him by cries of "Go on! go on!" He went on, severely castigating Grenville for complaining of the liberty of speech in that House; and dropping in his indignation the terms of courtesy towards the late Minister of "honourable" or "right honourable," said simply—"Sir, the gentleman tells us that America is obstinate—America is almost in open rebellion. Sir, I rejoice that America has resisted. Three millions of people so dead to all the feelings of liberty as voluntarily to submit to be slaves, would have been fit instruments to make slaves of all the rest." He then exposed the cases quoted by Grenville to show that taxation in this country had been imposed without representation, showing that these very instances led to immediate representation. "I would have cited them," he continued, "to show that even under arbitrary reigns Parliaments were ashamed of taxing a people without their consent. The gentleman asks when the Americans were emancipated? But I desire to know when they were made slaves?" He then touched on the true sources of benefit from our colonies, the profits of their trade. He estimated the profits derived from the American commerce at two millions sterling, adding triumphantly, "This is the fund that carried us victoriously through the late war. This is the price America pays us for protection." He then alluded to the comparative strength of the two countries. "I know the valour," he said, "of your troops. I know the skill of your officers. In a good cause, on a sound bottom, the force of this country can crush America to atoms. But in such a cause as this your success would be hazardous. America, if she fell, would fall like the strong man. She would embrace the pillars of the state, and pull down the constitution along with her." "When I enlisted," Monty confided to Alf Russell, "I thought I'd do my best to become a Captain or a General. Now, I'm dead anxious to be an Orderly-Sarjint." "Oh, no," she breathed, and her voice and the half-seen glimmer of her eyes troubled him strangely. "Till we're absolutely desperate." Rose was taking out the pins, and curls and tendrils of hair began to fall on her shoulders. Caro took the brush, and swept it over the soft mass, gleaming like spun glass. A subtle perfume rose from it, the rub of[Pg 262] it on her hand was like silk. Rose's eyes closed as the brush stroked her, and her lips parted slowly into a smile. He sat on a stool at the foot of Brindle's stall, and watched her as she lay there, slobbering her straw. His face was grim and furrowed, lines scored it from nose to mouth and across the forehead; his hair was damp and rough on his temples, his eyes were dull with sleeplessness. Lips all black with fire and brine, "The child is better," replied Margaret, "but I am very ill." HoME xxx3333 偷拍 ENTER NUMBET 0010aqjsedu.cn
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