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Vol 3 (2005) - Issue 3

Russian franchise law – Statutory provisions and current case law

Dr. Julianna Tabastajewa, Nr Stiefenhofer Lutz, Moscow and Peter Stauber LL.M., Nörr Stiefenhofer Lutz, Moscow

The authors discuss the inconsistencies in the wording of the Russian franchise legislation and look at the relevant case law. They argue that the franchise law in conjunction with the ‘unfortunate fundamental concept on which the legislation is based’ will probably continue to provide fertile ground for legal disputes for a long time to come.

Franchisors on the World Wide Web - Data protection and e-commerce issues in Hong Kong and PRC

Vivien Chan, Founding Partner, Vivien Chan & Co., Hong Kong.

The author assesses the challenges posed by the advent of the internet and e-commerce to conventional franchise laws, with particular reference to Hong Kong and the PRC.

Canada’s new private right of action for refusal to deal

Paul Jones, Barrister, Solicitor & Trade-mark Agent, Toronto

The author explains how, in an effort to achieve additional enforcement activity for the non-criminal provisions of the Canadian Competition Act without the increased commitment of its own limited resources, the Government of Canada amended the Competition Act and the Competition Tribunal Act in June 2002 to introduce a private right of access to the Competition Tribunal for non-criminal matters such as refusal to deal, tied selling, exclusive dealing and market restrictions that are dealt with in Sections 75 and 77 of the Act

Netherlands: E-commerce and data protection laws and their impact on franchising

Roelien van Neck, Boekel de Nerée, Amsterdam

This article outlines the framework of Dutch e-commerce and data protection laws with a particular focus on electronic contracting and commercial use of customer data. It addresses how these laws may affect franchising and customer relationships and deals with the subsequent challenges facing (franchising) organisations doing business in the Netherlands.

Control by a franchisor in Canada - Recent developments

Me. Jean-Charles Hare, Lapointe Rosenstein, Montreal

The author describes how the Lenester case is of interest to franchisors and franchisees, since it is the first reported case regarding the concept of ‘control in fact’ within the context of a franchisor / franchisee relationship. However, he warns that franchisors must still exercise caution in drafting the various agreements which govern their relationship with their franchisees, since the Canada Revenue Agency will look at the totality of these agreements as well as the franchisor’s actions to determine if control exists.

EU Report June 2005

James Webber, Eversheds LLP, Brussels

A number of court decisions are discussed in this month’s report: a Court of First Instance judgment has extended trade mark protection by allowing marks to be registered in respect of services provided in connection with retail trade; and the Court of Justice has controversially refused to accept jurisdiction on a reference made by a national competition authority. The report concludes with a look at the issues relating to the ‘modernisation’ of the Working Time Directive.

US Report June 2005

Michael G. Brennan and Lauren J. Murov, Piper Rudnick LLP, Chicago

In the first case in this month’s report the court concluded that the abandonment of trademark use justified use by others; in the second case the court held that a dealer who signed a general release of all claims against a motor vehicle manufacturer in order to secure the manufacturer’s approval of the dealer’s proposed sale of its dealership, was not barred from bringing an action against the manufacturer. In the last case dealt with in this month’s report, an oil company’s decision not to renew a gasoline station franchise was held to be in compliance with the Petroleum Marketing Practices Act.