A FEW CONSIDERATIONS ABOUT TRADE FUND ITS

NON-MATERIAL ELEMENTS

DRD. DOBROVOLSCHI – REVENCU LIUDMILA – PAULA

ATTORNEY AT LAW
WEST UNIVERSITY OF TIMISOARA - FACULTY OF LAW

The term "trade fund" is rarely used by the legislator, both in Romanian law, and
French. In Romanian law, the legislator incidentally uses the term "trade fund" in art. 861
of Commercial code, applicable for the bankruptcy proceedings (now repealed) and art.
21 and art. 42 of Law no. 26/1990, republished, with subsequent amendments, regarding
the trade register. Instead, the current legal rules governing the accounting register using
the phrase "trade fund" and its content, considering that it is part of "goodwill".
In French law, the Law of 17 March 1909 contains regulations on the trade fund
provisions that restrict only to establish some rules relating to the sale, securing and
tracking it. Legislator used the phrase "trade fund" especially in the matter of tax issues.
The expression "trade fund" in its modern meaning in France, appeared for the first time
in the Law of 28 May 1838 which amended the provisions of the Commercial Code (now
repealed), in connection with insolvency and bankruptcy. Law of 1 March 1898
introduced the institution of pledge over stock trade.
Subsequently, the Law of 17 March 1909 (hereinafter referred as Law "Cordelet"
after the name of the senator who proposed it) marked a decisive step on to clarify the
concept of "trade fund". Act no. 1909 regulates the three fundamental operations on the
substance of trade: the insurance, the sale and the contribution to the capital fund of a
company. Later, the Law of 20 March 1956 regulated the leasing of the trade fund in
commercial and manufacture fields, operations that usually involve frequent dissociation
between the property right over the trade fund and the exploitation of a trade fund.
The legislation provides only an overview of these operations; the trade fund still
remains a creative of jurisprudence and judicial practice. The practical needs that have
required the trade fund, are: on the one hand, traders wished to protect their own
customers against current and potential competitors. For this purpose, they have asked to
protect their intellectual and financial investments they have made during the formation
and development of the company. Finally, they gained the legal protection on the assets
in connection with the scope of business, enjoying about a particular status, including the
ability to transfer these assets, both through legal "inter vivos" documents and by legal
acts "mortis causa". Thus, traders have exited the category of simple workers
(entrepreneurs), that entering into a capitalist, as the results came not only from their
work, but the capital invested in the fund of commerce. On the other hand, the existence
of the trade fund was required by the merchants’ creditors.
The assets submitted to the scope of business are elements of the merchants’
patrimony. In order to remove or at least to reduce the risk of fraud in case of legal
transactions (e.g. concealing price, occult sales, etc.), goodwill assignment was subject to
certain procedures and formalities private. Yet this procedure is incomplete, because the
fund’s creditors do not enjoy with a priority in relation to other creditors whose claims
spring from civil legal acts (e.g., all creditors are entitled to object on the price at which it
sold assets belonging to the Goodwill).
Also in Romanian Law the fund trade is of particular importance for the proper
conduct of business. In a business there are a number of instruments, depending on the
nature of the trade, can be local, furniture, facilities, goods, patents etc. While Goodwill
has a very important role in the conduct of business, commercial code does not contain
provisions to regulate its legal regime. As we stated from the beginning of this work in
the commercial code was only a single provision was incidental to the trade, namely, art.
861 which provided that "the broke merchant who gained a grace period, before the
fulfillment of his obligations set out in the concordat agreement, will not be able to
pledge its trade fund or to sale it, other than in a required manner by his field of trade."
Both this article and throughout the bankruptcy regulations were repealed by Law
no. 64/1995 on the procedure and judicial reorganization bankruptcy, now repealed by
the entry into force of Law 85/2006. Art 21 of Law no. 26/1990 regarding trade register
contains a reference to Goodwill. This article provides that: "In the trade register will be
recorded entries on the donation, sale, rental or real guarantee securities on trade find,
and any other act which adversely affect the registration or terms or is able to cease the
business or fund trade ".
Identification of the legal regime of Goodwill is very important because the
merchant is concerned to ensure protection for his assets that he submitted for the scope
of business and these goods should have a special status in order to allow their transfer
through acts or through inheritance, and secondly, because recognizing Goodwill is
required by the need to protect the interests of creditors, goods submitted for scope of
business being the main elements of the active patrimony. Goodwill is defined as being a
set of tangible movable goods and non-material (non-tangible) goods which a dealer
natural or legal person it affects commercially exploited.
Goodwill comprises several elements grouped in assets and property or rights
incorporated. Assets or rights could be incorporated: the rights to the trade name
(company), the emblem or other distinctive signs; rights Trademarks, trade and service,
patent, registered designations of origin indications of origin; rights contracts for rental of
premises for business trade, the rights to the customer, a commercial see, industrial and
intellectual property rights, etc.
As regards the stock trade the legal literature since 1929, shows: "Apparently, the
trade enjoys autonomy ... All of the apparent, the trade, they say that it has established a
home that has claims to have debts that are firm, that has the logo, that people are
employed, that are suspected to have commission merchants, etc.. But once again, this
autonomy of Goodwill is apparent. There were some writers to support that the trade fund
is in fact a legal entity. It was argued that the trade fund would be a “Universitas juris”, it
is neither a legal entity nor “Universitas juris, it is only a “Universitas” in fact, namely
the trade components of the fund which are not homogeneous, met by merchants like
their property after. The resulting e-commerce fund trader, he is sovereign, not the law. "
§ 2. LEGAL NATURE OF TRADE FUND. In relation to the legal nature of stock
trading, in theory have been several theories of the first one being the theory of
personificării stock trade. Occurred after many followers of the theories of universality
and that the universality of law. In the modern period has been made and the theory of the
disease. In theory this property has incorporated more and more supporters.
 In this respect some authors fund qualifies as a trade law that gives customers the
proprietor of a true monopoly exploitation, and other authors consider that the stock trade
items to attract customers, is an intellectual creation, like creative scientific, literary,
artistic or technical. Goodwill is considered a good mobile that although the composition
to include materials and real estate, is the prevailing mobile. Also Goodwill is being built
and designed as a good summary that includes all tangible fixed assets and incorporated
rights that ultimately prevailed with a vocation for greater durability.
Qualification of the Fund trade more apparent consequences: being a good unit,
separate elements that compromise, it may be subject to sales or location or of a security
market. The good unit fund do not trade individual elements, which retain their legal
system, as movable enforcement on stock trading rules are provided by the Civil
Procedure Code for the property. So, can not be pursued forced income fund trade after
the procedure for enforcement building, but will be applied to all goods covered
procedure for movables. It admits, however, that in the absence of legal provisions, if
Goodwill includes immovable property, their pursuit takes place under the conditions
provided by law for enforcement of real property; similarly guarantee real securities can
not establish the fund trade property that includes, for that the trade is a good mobile
incorporated do not apply instant purchase prescription provided by art. Civ. C. 1909.
§ 3. ELEMENTS OF INCORPORATED GOODWILL. Goodwill has a uniform
composition, but varied according to specific merchant business. Meanwhile composition
Goodwill is not fixed but variable its elements may change depending on the needs of
trade, the trade will continue to exist. Incorporated elements of the Fund trade on the
rights of company logo, business customers and see, patents for inventions, trademarks
and geographical indications, copyright, property right of concession, etc.
These rights are called entitlements and deprivation trader giving them the
exclusive right to exploit its use in the conditions set by law and having an economic
value, are protected by law.
3.1. The company or trade name is an element of individualization of the operator
in the business. Headquarters matter is Law no. 26/1990 with subsequent amendments,
including the GO no. 72/2004 which states in Article 30 that the company is in the name
or case name under which a dealer is registered in the exercise of trade and commerce
under the sign. The term "firm" is equivalent to the term "trade name" for French origin
(nom commercial). The latter term is used not only by French law and doctrine, and the
Convention of Paris of 1883 regarding the international sale of goods.
Therefore, in our legislation, the term "firm" is equivalent to that of "trade name"
(for individuals) and "name" or "social label" (for company). Some authors make the
distinction between the term "trade name" within the meaning of the book only individual
trader, and the term "firm" only company. The vast majority of authors consider that this
distinction would be unnecessary and put equal sign between "firm" and "trade name."
Term the "Company" has the meaning of business entity - business, society. In the same
vein, it should be noted that the term "firm" has the meaning and support material (plate,
board, etc.) that is marked and if the company any emblem, visible support, made entry
into the store, restaurant, factory, etc.
Business function are: the identification of the operator. The company is a
distinctive sign whose primary function is to identify the merchant in trade relations,
financial, administrative etc. and, in particular, towards individualization of other traders.
Any dealer, person or entity must have a firm; the signing of the undertaking (Socia
Signature).Making the multitude of legal acts that ad business would be inconceivable
without individualization, exactly, persons subject to rights and duties - which
participates in such activity without signing commitments in a precisely determined. This
consists of commitments signed with the name or firm name adopted as a signature
addition to persons authorized to bind the company by or under the act of
incorporation.Company together with the signature form signature social function;
rallying clients. Company may be one of the most effective means to attract, maintain
and develop clients. The company is a distinctive identification of the trader in the crowd
participating in the great race to attract clients for market penetration. In other words it is
a sign of recognition of a trader in its many competitors. Without competition there is a
likelihood of confusion; the credit. Reputation of the company determines the credit
market trader. A trader can obtain loans, primarily through the prestige of its name.
Conversely, a name is an impediment spotted, even when warranted. Without credit, a
company is ordered to suffocation.
The legal regime of company logo and business is covered, mainly in the art.30-
43 of Law no. 26/1990 regarding trade register, republished, with subsequent
amendments. The model statement was to the art. 26-36 of the Romanian Commercial
Code of 1938, promulgated, but never came into force. Law no. 26/1990 is supplemented
by Law no. 31/1990 on trading companies, which includes certain provisions relating to
company and logo. Such an obligation is provided indicating the name of the company, in
the act of incorporation.
Legal intern is completed with the Paris Convention for the Protection of
Industrial Property of 20 March 1883, which in art. 8 provide that the trade name will be
protected in all members of the Union, without the obligation of filing or registration and
whether it is or not from a factory or trade marks. Trade name protection is given under
the condition of being born in the true country of origin and being used in the country
where protection is claimed.
Given the current legislation, and opinions expressed by experts in the field,
companies can share in the following categories: individual firm and social firm.
Individual business operators have individuals or companies associated with unique
social and business have all other companies. The company has no external significance
because it is possible for an individual trader to continue their business under a firm
social and vice versa; company name and company anonymous, as the company
contains a name or subject company. If containing the company name and the subject, is
called mixed company; original firm dealer who began exercising his trade or business
derived or sent which was transferred together with Goodwill.
In the regulation of Law no. 26/1990, the operator may have a single commercial
company consisting of the same name of the trader in the same company name. The
supplier can not assume the obligation to sign contracts, bills, checks or other commercial
documents with names (different names) registered company. By uniqueness of the
company is within the legal technique as only one name or designation under which a
trader exercises trade. The uniqueness of the firm does not mean that the country, in the
same county or city could not function two operators with the same name or two
commercial companies with the same name. It required but a statement to distinguish the
nine existing ones.
 Effects of loan use of the name. If the name of a person of foreign listed
company, with his consent, in company of a company or group name in partnership with
Simple, it becomes unlimited and severally liable for all obligations of the company. The
same rule applies full liable associate and whose name appears in a business partnership
with companies. Rationale for inclusion of this rule was to prevent the reputation and
profits of a firm on behalf of a person who is not associated with and alerting the lender
of the risk that it will tolerate.
Transfer of the firm. This exclusive right may be transmitted with Goodwill.
According to art. 42 of Act commercial register, the company can not be alienated
separately from the trade is used to take. The emblem can be transmitted in principle, and
separate from the trade. Firms for individual traders shall be registered in a register
different to register for companies.
Right to the firm. Company logo and firm are movable, which are incorporated in
the composition of Goodwill, they constitute a relevant indicator of economic strength
and development prospects of an enterprise.
Company or business name, besides the function of individualization that is
satisfying constitutes in the commercial area a good economic value, a real support for
customers. These characters give its holder an exclusive right, protected by law and
acquired by entry in the trade register.
Act no. 26/1990 provides an exclusive right to use the logo and the company - which is
acquired by entry in the trade register. The exclusive right of trading on the name
produces unambiguous text of the Law no. 26/1990, art. 37: "a company will not include
a name used by traders from the public field" art. 35: "any new company must distinguish
from existing ones" art. 39: "Company can not be alienated separately from the
goodwill”. Right to the company logo and firm are therefore an attributive use. This
means that, in principle, the conflict between a merchant who created and used a
company logo or firm without a record in the trade registry and merchant who later
recorded in trade registry a company logo company logo or similar; law gives priority to
that merchant which has registered first his firm and/or logo in the trade registry. Devoted
to such attributive system which unlike declarative system, have greater legal security,
but it requires an advance and an appropriate advertising.
Right breed so by writing in the trade, at the request of the operator, owner of
Goodwill. This right has an exclusive and completely jus in re character and can be
alienated only with the merits of trade to which it is used. These characters drawn from
the art. 35-30 of Law no. 26/1990 gives the trader a real intellectual property right over
commercial name, similar to trademark law, being considered by similar criteria. This
right belongs to the category of rights deprivation. It is distinct from the right brand and
the right on logo, because "firm distinguishes the company operator, trademarks
distinguishes products, logo distinguishes shops.
Characters of the rights on firm. 1. The exclusive right on the name of trading is
provided in art. Article 30. par. 4 of the business registry Law that relates to the right of
exclusive use. The principle of exclusivity or the company means so that any new
company must distinguish in a precisely, determined and easily observed by existing
firms in the same geographical area (city, county, etc.) with the same kind of trade is
entered into the trade. Usurpation company that is any use in breach of company law
(absolute usurpation) or wrongfully use any company other (relative encroachment) is to
the injured party to the complaint or referral to the Chamber of Commerce and Industry.
The graceful way, you can request cancellation of registration or of a judge delegated by
a fine and civil way process, requiring the addition to these penalties and damages.
2. The jus in re character results of this law that the holder can exercise the right
without any intervention of other people who are only obeyed not to interrupt the exercise
of the owner’s right. The reality of the company means that the company must show the
true state of things, both on the subject and the company’s scope of business, in order not
to mislead the public. Under this principle, the individual trader must use his wholly civil
name as a firm or only the surname and the initial letter of first name both added to the
signature specimen certificated by Head of the Trade Registry or by the delegated judge
from Trade Registry.
3. The absolute character of the right on the firm. Enforceability of the firm and
the logo represent an immediate effect created by registration of the company in the trade
registry. Legal effects: trade name (company) may be alienated, but only with the fund to
which trade is used. Acquirer will be able to continue operations under the trade name
above if transmitter (the owner or heirs) agrees to it expressly.
§ 4. THE LOGO. Although some aspects of the logo we have highlighted in the
previous paragraph, when we analyzed the trade name (company), consider the need of
more specific aspects shown. So, first of all be stated that the legal regime of the logo is
given by Law no. 26/1990 regarding trade register. This defines in the art.30, the logo as
"a sign or name that distinguishes one dealer from another from the same category of
commerce”.
This definition of the logo is different from the existing rules enshrined in the
interwar period (Law firms in 1931) in which the logo was defined as a sign or a name
that distinguishes an enterprise from another. Was considered by some authors that the
new regulations would create confusions between the company and logo and,
consequently, the definition of the logo should be retained is that as in the old rules.
Article 30 paragraph 1 and 2 of Law no. 26/1990 should be interpreted as meaning that
the company identifies the merchant and his undertaking. When the firm is accompanied
by the company's logo, their functions differ, but without becoming exclusive, meaning
that the company identified the trader as the subject of rights and obligations, and the
logo distinguishes an enterprise for another of the same kind. Logo justifies its
recognition as an element of identification as far as providing a further individualization
through a sign or a name between pursuing business in the same field.
As the law provides, the logo may be a sign or a name. The sign face may be
graphic, with any object: a machine, a figure, animal, etc. The sign may consist of a
reproduction object activities. The name can be invented or their own name. It can not be
a generic name, without any specificity.
To be known and protected as such, the logo must be new, must differ from logos
contained in the same trade register, for the same kind of trade, and logos of other traders
in the market where the trader is operating his business (Art. 43 of Law no. 26/1990). The
trade register is not required to refuse registration of a logo which is not new because the
logo is not mandatory. With the entry of the emblem in the trade register, the trader
acquires right to use it on advertising billboards, wherever they are placed, on invoices,
letters, notes and orders, notices, publications and in any other way, but whether they will
be visible with the merchant company.
 Alienation in relation to the emblem, the law has not regulated solution enshrined
in the company matter. Most authors consider that the logo may be disposed not only in
the stock trade, but also separately. With an exclusive right to use the logo, the operator
may dispose of as he wishes. If the fund trade is transferred, the acquirer may use the
logo only with the transmitter’s consent. There is, however, and opinion that, "as is
virtually impossible to determine the economic value of the logo, and it is not object of
general pledge of the creditors, any logo, disengaged from Goodwill can not be admitted
as a contribution to a capital formation.
§ 5. COMMERCIAL CUSTOMERS AND COMMERCIAL SEE. The aim of the
scope of business, consisting of obtaining a profit, can be achieved only by agents who
managed to draw around their steadfast clientele. The entire profitability and success of a
company depends on this human factor. Fight to win, retain, and expand customer
retention defines broadly characterized commercial competition and liberal economy.
The notion of customers include its dual meaning, one of a human, the other kind of
material, which is necessary to dissociate. Under the first point, customers are defined as
all persons who usually supplies from a dealer or to use its services. It is usually defined,
which gives expression to findings of fact, immediately discernible.
Attractiveness exerted on customer flow, at least in relations with an economic
individual, from a double source. First personality of the trader can be detained. His
behavior, his attention on those who visit his shop, knowing how to present the goods are
not imponderable and can not be neglected. In this regard, the individual reputation
weighs in the balance very hard. The shown element is not the only one that must be
taken into consideration. The objective element is equally important to be called
commercial see, which materializes in the ability of the trade fund to polarize the public
especially because of the favorable location in a neighborhood commercial, at an
intersection very common in the vicinity of a factory with a large number of employees,
potential buyers, etc. Without doubt the affordable prices and quality of products or
services also play an important role in attracting consumers.
Under the second aspect, the material, customers are addressed in the abstract, in
other words independent of consumers who make up in fact, giving priority for economic
and valuable matter. In this respect, the older literature focused on business relationships
with customers and which has an unmistakable economic value to the merchant in
question. This characterization prevails in literature today, as well. It has been written
that although it is a mass of unorganized and variable individuals, the clientele is a
valuable good, because that relationship is established between the holder of trade fund
and these people, who procure goods and services from that merchant.
By customers we understand therefore hoc sensu the value represented by
possible or probably relationships with people who attend a fund of commerce. Thus
characterized, the clientele is considered the possibility of global repeatable and future
contracts with consumers. Noted also on the same line of thought that the concept of
customers is equal in terms with the representation of benefit – speaking on valuable
terms – on which the fund trade owner may obtain from the sale or supplying required by
all persons in fact, but not law, are attached to his establishment. The clientele is
equivalent, from this perspective, with a true monopoly in fact, based on expectation of a
certain public concourse, and materialized in business relationships consistent with the
trader concerned.
 Kinds of customers. By reporting to the diversity of connections between a trader
and customers there are some possible dissociations and classifications. A first group, is
the drawn up customers, which is composed of consumers addressed under the same
merchant due to their habits and confidence inspired by the merchant. Faithfulness is
achieved, if we care about, regardless of the existence of a contract for supply of
indefinite duration or a time agreed with the trader concerned.
Another group is the committed clientele. This represents total of persons who
have concluded a contract with the merchant, thus establishing links between them for a
period of time. Some authors speak in this case of "captive customers", but phrase seems
inappropriate in a market economy, designating rather constraining relations in the
economy of monopolistic communist meeting in which a single supplier of specialty on
the relevant market, without any other possibility options for consumers.
A separate category, designated by the expression “derived clientele”, which
appeared relatively recently in specialized vocabulary, takes into consideration the
complex situations come up particularly in universal stores. In such vast proportions of
precincts, with many stalls, a distributor (concession) can benefit from the flow of
consumers attracted by the complex trade in which they operate, not to intervene except
to a slight extent (sometimes zero) resulting attractive of its ownership or attributable to
products offered for sale. It is an innovative concept, which puts into question the
personal character of customers.
Is not negligible either “the casual clientele”, lacking constancy, continuity and
stability in relations with the trader. Most often it is about the consumers attracted by the
favorable location of stock trading (so-called "commercial see"). However the location is
not a mandatory requirement. In fact, a trader may stroller to form also on his itinerary,
an occasional customer.
Characteristics of customers. Customizes the concept through a number of
distinctive features. First list comprising some traditional, stable features in general. In
this category are comprised the legal and commercial nature but also of securities. We
must add some notes that have evolved in an appreciably manner as a result of the
transition from traditional trade to modern trade exercised among others in the universal
stores, hypermarkets or extensive distribution network. Each of the features listed require
additional clarification.
a. Legality of clients. Business relationships between the merchant and his
customers that usually attend its shop, presents a lawful nature in so far as carrying on a
market consistent regulatory prescriptions usually under an authorization. Conversely, a
clandestine trade with the object or the rules prohibit force (such as for example drugs),
even if some attract casual fans, can not benefit from protection. It cites the meaning
showed a local gambling, operating without legal permission, a kiosk of spirits opened
fraudulently or in a house of tolerance prohibited. Since such trade is exercised outside
the permitted area of legal and moral, consumers do not qualify to be deemed a clientele.
Economic relations with the occult and are thus deprived of the normal market
competition. Defense related, possibly required by the trader against abuses of rivals
charged on the relevant market can not work.
b. The commercial character of clients. The distinction must be made by
reference to civil customers who formed around the holder to exercise a liberal
profession, like a lawyer or a physician. Contact the person is fundamental to a clearly
significant only in market competition, in which can not underestimate the objective
factors of an economic nature, such as qualitative parameters of commercial see, quality
of product or business. Conversely, the opinions, consultations, services, provided by a
lawyer or a doctor wearing the personal and sole print of the author. Material conditions
of installation (desk, office, laboratory) have a secondary meaning, in contrast with
commercial see. Undoubtedly supreme are experience, professional skills of the person
providing the services, the confidence that inspires to the customers. Its individuality is
key factor. For the purposes stated in the law has examined the question whether a
surgical clinic (private) can have a constituency of its own, independent of the doctors
who operated in the hospital unit. French Court of Cassation, in opposition with the fund,
held on the word that patients attracted by the very well known personality of surgeons
were in the same time the clients of the hospital itself.
It seems that once the holder of a civil clientele cease his operations, the clientele
disperses. We can deduct that, in contrast to commercial customers, the civilian is not
likely to be evaluated. The definition of commercial clientele tends to increase its notes
as modern literature remarked. It is unanimously accepted that in this area are currently
entered, the consumer groups of a dealer or manufacturer, even if the owner of stock
trade has no quality of merchant, in addition to the manufacturer.
c. The independent character of clients. Mainly, an economic agent participates to
the business activity for competition on the relevant market, serving his customers.
Constant relations are established in this way resulting from the management of fund
trade which is organized and run by the merchant. Under normal circumstances, the
owner formats his customers both independent and the personal.
Unlike the traditional, relatively simple competition, which we have referred, the
commercial competition, as currently practiced, has lost, at least in some areas, the
individualistic emphasis of the past. The degree of complexity of the economic
interdependence increased substantially. The existence of universal stores, hypermarkets,
franchise or modern distribution networks starts new discussions about immediate aspects
of the so-called "derivative clientele" or "clientele held in common”. Was said in this
regard, not without reason, that the phenomenon reported "proof that the concept of
trading stock based on an own clientele, resulting in an individualistic conception of the
operation, which no longer correspond to certain forms of modern distribution”.
Derived clientele and customers held in common. Derived clientele. This implies,
as a prerequisite to a commercial area of overlap with diversified economic activities,
generating possible confusion. Thus inside a department store, an airport, a racecourse or
a theater, and each having their own stable clientele, open on a space rented from the
owner, a bartender by an operator of itself. In connection with this literature and practice
put the following question: Consumers who are attending the universal store are different
from those of the owner who operates this great commercial area, and can they be defined
as an independent, separate, category?
Generally, jurisprudence responded negatively. In other words, the flow of
people, when referred to, which are attending the inside shop are actually the ordinary
customers of the universal store, airport, racecourse or the theater itself. We are in the
presence of the derivate clientele (not personal clientele). Unlike the courts, the doctrine
has a more nuanced point of view. It is considered that, in the example would have been
likely to be attracted bartender and a separate public from the premises due to their ability
and publicity. The solution would, in other words, to arise from an appreciation of
practical facts, the circumstantial cases. In other words, even in the case referred to, the
possibility of an independent clientele of the tenant is not excluded.
b. Clientele held in common. The phenomenon may arise in the relationship
between participants in the distribution network or concession, as in the franchise
contract (or other integrated distributors). In such cases we must determine the
membership of the customers. The holder is the economic who is operative in the
relationship directly with the public or the merchant who organized the distribution
network, and maintained the concession made to the worker or granted the franchise?
Faced with such questions, jurisprudence has given different answers in different cases,
false sometimes, but so far has not outlined a coherent concept of overall.
In the situation of franchise over trademark or a notorious trademark for benefit of
the concessionaires from this network, the franchisor company already has a stable
clientele but also has the know-how - that were transferred to the franchisee. In theory
two different trends appeared. According to one of them these customers belong to the
owner of the trade mark, who through the impact of its business on the public ensure
marketable assets. Other opinion, pragmatic, takes into account the concrete
circumstances of each particular case meaning that it seeks to determine if the concrete
weight carried by one of the Contracting Parties to market relationships may be
considered prevailing. Subsequently was recognized as the holder of customers,
regardless of position held in the franchise contract. However, we may consider as
conclusion that”common customers" raises serious doubts being unacceptable on theory.
Relationships between customers and fund trading. The existence of mutual links
that maintain in close contact is undoubtedly highlighting by itself. This actually leaves
open the discussions about if and how much the inevitable connection equals a
subordination in order to affect their originality. Opinions are divided.
According to the traditional thesis shared by a significant part of jurisprudence,
the customers are considered as an element which forms an integral part of the
universality of Goodwill. In other words, customers may not be an independent asset by
fund of commerce. "It represents the main factor for prosperity of the enterprise.
Goodwill, considered as Universitas of fact, "embraces and unifies all component goods
because of their common serve to attract and maintain a steadfast clientele, the supreme
goal of the exercise of trade". It was mentioned as well about the clientele that it
represents the essential element, essential of the fund trade. Without the existence of this
element we can not talk about Goodwill, but only about isolated elements with no
connection between them. Speaking about customers in the same line, that it "constitutes
the cement between the other necessary categories of goods, giving substance to fund
trade: both originality and economic value."
Unlike the inclusive thesis a new, modern concept considers that is not justified
the assimilation of the clientele concept as a component of the fund trade, not even it is
essential. This lead to the unacceptable result of ignoring the original concept of
goodwill.
Rights relating to customers are not offering to the owner, as the jus in re right of
property, the power to dispose of them. No trader can not compel a person in order to
maintain further relationships with a steady seller since, "Customer belong to the one
who knows how to convince him because our system is a competition and freedom
regime." Legal analysis tends to characterize the economic agent’s powers to preserve his
customers as expression of a new category of rights, different from both the personal and
the jus in re rights. The defining element of this third new class is the exclusivity of
which the owner enjoys. Regarding the transfer of the rights relating to the clientele let us
remind that the fund trade transfer and the pledge over the fund trade are phenomenas
that are very common in business. Selling Goodwill is in deep connection with the
clientele because of their close links.
Selling Goodwill transfer imposes an obligation of non-competitive versus
acquirer. Usually it is to be inserted in the contract the explicit clause in order to establish
appropriate restrictions for the acquirer. Even the lack of content this clause, if the seller
would continue to maintain relationships with his former customers in a new, arranged
around the sold shop, this equivalent to a usurpation of property by itself, the meaning of
art. 1339 of the Civil Code. Violation in this way of a tacit guarantee of useful
possession, the seller must provide the acquirer, may engage his responsibility for it.
The pledge over stock trade, whereas the object is universality in fact, is achieved
by way of derogation from the common law of art. l685 of the Civil Code, without
stripping holder, which in turn obtain the loan requested. The exception is justified under
art. 480 paragraph 4 of the Commercial Code by extensive interpretation of the text,
shared by the theory. The pledge without dispossession is done by simply handing the
documents concerning the fund trade by the debtor to the creditor and by making the
appropriate references to the trade register, thus ensuring operation opposability from
third parties.
Constituting the pledge mentioned above, raises the question whether the object
of the pledge – the guarantee – is composed by the customers comprised in the fund in
question. The solution varies depending on how it is understood the correlation between
customers and fund trading. According to the sentence which gather them, the answer
would be yes. But the answer should be no if we recognize the customers as distinct
element, the result of purposeful activity undertaken by the trader.
Regarding the protection of the rights on the clientele, the conditions in which this
right shall enjoy legal protection, presents enhanced features. The differences come from
the incidence of spring fair competition principle, enshrined as a fundamental factor of
the market economy in the art. 134 of the Constitution.
The commercial see is a particularly important incorporate asset in the stock trade
and in close connection with customers, being considered an objective element of
Goodwill. For this reason, the literature considers commercial see being a part of a
clientele or a form of it, namely, that is the location of fund trade. It is an opportunity for
business taking into consideration more the location in space of the enterprise rather than
the personality of the trader. Commercial see is defined as the ability, of trade fund to
attract customers, because of multiple factors that work customizes each merchant.
In a simple definition, the Commercial see is expectation of future earnings based
on power of the attraction of customers and enriched, or by certain rules of organization
and behavior in business, such as assortment of goods, prestige of the commercial name
of the company, staff ability to satisfy customers, small added services, etc., or simply
vantage premises, or by both qualities met in the same time.
Objective and subjective factors. Commercial see depends on: objective factors
(real), representing the value of assets of the fund itself and transferring it along with
them and subjective factors (staff), representing the contribution in labor, energy, skills,
etc., from the trader.
Economic value of the fund trade is determined by factors such as the location of
the shop where the dealer performs the activity, place of the factory, warehouse of the
manufacturer or of the intermediary. Also in the objective factors can be classified items
such as quality of goods or services offered to customers, prices charged by merchants.
Between subjective factors we can retain quality staff, behavior towards clients, and
advertising that makes a trader, the influence of fashion, etc. Among the objective factors
of the Commercial see the most important is the location, the geographical situation of
the building where the trader exercises business. Of course, if the property owner
exercises where trade is the trader himself, it can not arise any difficulty in operating fund
of commerce. The problem of the Commercial see appears when the dealer has the place
when operating under a contract of hire, especially when due to the way in which he
pursued trade, has created an attraction to customers, in which the contribution compete
with the personal real estate situation in such a degree that would be an impossible
separation quality. In such case, mobile owner could request a higher rent than for a
commercial space that is also an attraction for customers. Times, an increase of rent due
to the contribution would be a trader unjust enrichment. The problem has been resolved
under principles of fairness and general rental principles, in the sense of recognition of
contribution in increasing the dealer's property in which they operate and establish a
similar rent for a similar market space, with the same quality.
The relationship between customers and Commercial see. In literature, there is no
unified view regarding the relationship between customers and Commercial see. In
traditional design, Commercial see is not a separate item for customers, but can be
evaluated only in conjunction with customers. Commercial see and commercial
customers would be two of the same phenomenon. Clientele consists of all persons
attracted to the trader's personality. Commercial see would be thee sum of all commercial
consumers possibly attracted by the location of Goodwill. Customers take the subjective
factors. Commercial see is the objective factor of the business. For jurisprudence and
doctrine the customers depends on the place where the trade is exercised, considering that
is a component of Commercial see; in this case commercial see and customers are so
confused. But there may be a fund with the local trade to trade stroller.
Where the nature of exploitation requires adapted equipment or facilities (cinema,
hotel), case law considered that the trade is linked to real estate specialist and is presumed
that the property owner. In modern design, the distinction between Commercial see
commercial customers and has no legal consequences, in the last analysis, is the dealer's
customers, and other elements of stock trading is intended as a means to achieve this goal
- preserving and attracting customers.
Commercial see is a separate element of fund of commerce. Even if between
Commercial see and commercial customers there are many similarities, there are
differences, both forming a whole. Commercial see determines commercial customers,
attract customers, which is why one can say that Commercial see marketing is more
important. Commercial see business is different, depending on the possibilities of choice
of supplier to a zone circulated, in a resort area and equipment.
Right on Commercial see is closely related to fund trade. Commercial see being
an element of stock trade, is not capable of separate assessment, since it is a property of
its own, but only with the assessment fund of commerce, so that their liquidation is
possible only together. Considered that since Commercial see is part of Goodwill, if
damages were awarded for the abolition of Commercial see it can not be granted a new
amount for the abolition of trade fund.
Commercial see has the same protection as Goodwill. Right on the real estate
dealer in which they operate, including trade fund and Commercial see is based on
servitude technique, creating a conventional protection against competition, each holder
of the dominant and associated fund will recognize other fund right to own customers and
commercial see. Goodwill could support a concession on an administrative public domain
when performing one's own constituency. The holder of such authorization could transfer
his fund trade, including the commercial space and Commercial see the transferee
subrogating in the transferor's rights deriving from trade exercised.
§ 6. INDUSTRIAL PROPERTY RIGHTS. Goodwill may include certain
industrial property rights. Doctrine divides objects of industrial property into two
categories: new creations (inventions, know-how, designs), and new signs (trade marks
and geographical indications). The patent protects creation which is the result of
inventive activity is new according to the state of the world technical level and is capable
of being applied to industry.
Law no. 64/1991 patent does not define the invention, but sets out the conditions
which it must meet to be patentable, to be new, to result from an inventive activity and be
capable of industrial application. The rights of the invention are recognized and protected
by patents, as I noted, it was issued by State Office for Inventions and Trademarks. The
title of protection of invention, patent gives its holder an exclusive right of exploitation,
on the validity of this.
Patents may be a contribution to the capital of a company, so natural in view of
its economic value and that the patent holder recognizes an industrial property right.
Patent holder may submit the ownership or use of patents. If transmitted over patent
ownership, the company gets the patent proprietor and may exercise the powers arising
from this quality. In case of dissolution of the company, former owner does not regain the
patent unless such right was reserved by instruments.
If the owner has transferred only a right to use its right to preserve his company
acquired only a right of exploitation of the invention is fixed. In case of dissolution of
company, the patent holder fully regains all the rights on it (if it is still in force). With
regard to designs and industrial models (patterns) in case they are part of the contribution
to company’s share capital no particular formality are necessary. Regarding trade marks,
these are likely signs of graphic representation, serving to distinguish goods or services of
a natural or legal person from those belonging to another person.
Trade mark’s functions have evolved, but most often a trade mark is combined
with goods and, therefore, the trade mark is used as factory mark by producers. Slowly
but firmly, the practice of marking products was acquired by the vendors of products,
sign applied by them indicating to consumers they did not manufacture the product, but
they made all the efforts to select the products they sell and that they have made a
judicious choice between the various manufacturers of the same product. These are trade
marks.
Trade mark area has continued to expand, since trade marks apply only to tangible
goods. They entered into field of services, material values, incorporated goods. Services
marks are not intended to identify the product or vendor but the provision of services.
Law no. 84/1998 stipulates that can constitute distinguishing marks signs, words,
including personal names, designs, letters, numerals, figurative elements, three-
dimensional shapes and, in particular the form of the product or packaging or
combination of colors and any combination of all these.
The holder of a mark has the exclusive right to use or exploit the particular sign,
and the right to prohibit use of the same mark by others. In regard to geographical
indications remember that these are names serve to identify a product originating from a
country, region or locality of a state where a quality, reputation or other characteristics
may be determined primarily attributed this geographical origins.
Industrial property rights are recognized and protected under the conditions laid
down by law. In order to ensure protection under the law, traders are required to seek
registration in the trade register of each patent, trademarks and geographical indications
(Article 21 of Law no. 27/1990).
§ 7. COPYRIGHT. Goodwill may include certain copyright resulting from the
creation of scientific, literary and artistic. Goodwill holder has the right of reproduction
and dissemination, representation, or uses in any manner the work and subsequently the
right on corresponding valuable advantages of work. Capitalization of copyright is under
the terms of Law no. 8 / 1996 on copyright and related rights.
§ 8. REGIME OF CLAIMS AND DEBTS. Claims and liabilities are not part of
Goodwill. The conclusion is based on the fact that the trade fund, although comprising a
set of tangible elements and incorporated, however, it does not constitute a legal
universality, a heritage in legal sense. As the claims and debts are not included in the
fund trade, they shall not be transmitted when trade fund is transferred. It admits,
however, that certain rights and obligations of employment contracts, contracts for
supplies (water, gas, electricity, telephone, etc.). are transmitted to the acquirer, if such
contracts were not terminated. In all cases, the assignment of the claims must be notified
to the debtor, the conditions set out in art. 1393 C.civ.
An issue is about the right to use the premises under a rental contract. This use is
part of Goodwill. This right is of interest, especially in the retail market when the loaction
is one of the essential elements to attract customers. It was observed that this right of use
does not constitute an indispensable element of Goodwill. Most often, the holder of stock
trade is in the same time the owner of the building. According to the regulations in force,
the rental contract covering premises in which commercial activity is taking place, is
governed by the provisions of the Civil Code or the special law, as appropriate.
§ 9. CONCLUSIONS. To conclude, it should emphasize that in this work we
intended to underline not only the development of the general fund trade but also their
main characters, the incorporated elements of Goodwill, analyzing them separately,
without pretending that we managed to resolve all matters in controversy, or that we
exhausted the scope of discussions on the substance of the trade fund, but we hope that
we opened the door for new legal debates.

Bibliographical Notes:
1. For details about the fund trade law compared, see: Smaranda Angheni,
"Les fonds de commerce en droit anglais et en droit français", in Revue
Internationale de Droit Economique, Brussels, 1996, no. 2, p. 237-255;
 Smaranda Angheni, "Quelques aspects, concernant le fonds de
commerce en droit anglais et en droit français", in "Revue Roumaine
des sciences juridiques, tome VII, no. 1 / 1996, p. 56-73; Derruppé
Jean, "Le fonds de commerce", Dalloz, 1994, p. 1-99
2. Regulation of the Law No accounting. 82/1991, approved by
Government Decision no. 704 of 14.12.1993. Law no. 82/1991 was
recently amended by Law no. 420 of 25.10.2004, concerning the
approval of Government Ordinance no. 70/2004 amending Law No.
accounting. 82/1991, published in the Official Gazette, Part I no. 993 of
28/10/2004. These changes took effect from 1 January 2005
3. See, Smaranda Angheni, Magda Volonciu, Monica Gabriela Lostun,
"Commercial Law", Editura Oscar Print, Bucharest, 2000, p. 65;
Smaranda Angheni, Magda Volonciu, Camelia Stoica, "Commercial
Law", ed. III, Editura All Beck, Bucharest, 2004, p. 64.
4. See, Stanciu D. Cărpenaru, business law Romanian, Editura Lumina
Lex, Bucureşti, 2001, p. 111
5. See, in Finţescu, Course of Romanian Commercial Law, Vol I, Ed Al.
Th. Daicescu Bucharest, 1929, p. 164. In connection with the
arguments for and Universitas contraargumentele factors and not legal
jurisdiction and Universitas see the same work, p. 165-167.
6. For other issues, see Smaranda Angheni, Magda Volonciu, Camelia
Stoica, "Commercial Law", ed. III, Editura All Beck, Bucharest, 2004,
p. 68 et seq.
7. See IL Georgescu, op. cit, vol I, p. 522 et seq.
8. St. Cărpenaru, Romanian Commercial Law, op. cit., p. 114
9. Idem, p. 99.
10. According to art. 1909 C. civ. Roman: "Things mişcătoare is barred by
their posesiunii, without the need for a flow of time. However, those
lost or stolen, which was one thing, you can claim, in course of three
years from the day when they lost or had stolen, from where it lies,
leaving it appeal against that from which it has. "
11. Article text. 2279 C. civ. fr.: "En fait de meubles, la possession vaut
titre. However qui a perdu celui ou auquel il a été une vole may chose
to revendiquer pendant trois ans, à compter du jour de la ou relevant du
vol dans celui contre les mains duquel il la trouve, sauf celui-ci à son
against the duquel il la tient.
12. In this respect O. loaf, Companies, p. 275
13. In this respect, I Bacanu, company logo and business ", p. 88; IL
Georgesu op. cit., vol I, p. 537.
14. For more details see, I. Bacanu, company logo and trade ", op. cit., see,
and Peter Vonica Rum, "Commercial Law - General Part", Editura
Lumina Lex, Bucharest, 2000, p. 784-785
15. See, art. 7 points. b and art. 8 points. b of Law no. 31/1990
16. Romania ratified the Convention, as revised at Brussels in 1990 and
Washington in 1991, by Law no. 1924, ratificând and the revised in
Stockholm in 1967, by Decree no. 1177 / 1 968
17. See, Peter Vonica Rum, op. cit., p. 786
18. For example, Teodor Ionescu - ice cream factory
19. See, art. 42 of Law no. 26/1990
20. See, John Bacanu, "The uniqueness of commercial business, in
commercial law journal, no. 1 / 2000, p. 24.
21. See, art. 38 para. 2 of Law no. 26/1990
22. See O. loaf, op. cit., p. 282 et seq
23. See IL Georgescu, op. cit., vol I, p. 544
24. Principles of Commercial Law, Editura Cartea Romaneasca, Bucharest,
1928, p. 126
25. For these issues see Peter Vonica Rum, commercial law - the general,
Editura Lumina Lex, Bucharest, 2000, p. 794 et seq.
26. O. loaf, Companies, p. 278; I. Bacanu, company logo and business op.
cit., p. 91-93
27. St. Cărpenaru, Romanian Commercial Law, op. cit., p. 118; Bârsănoiu
C., A. palter, M. Toma, C-tin Tufan, op. cit., p. 232; I. Bacanu,
company logo and business op. cit., p. 92 I. Turcu, Commercial Law,
op. cit., p. 109.
28. M. Şcheaua op. cit., p. 49
29. See, Octavian head, commercial law - the general ", op. cit., p. 350.
30. IN Finţescu, Course of Commercial Law, vol I, Bucharest, 1929. p. 1
67.
31. Stanciu D. Cărpenaru, Romanian Commercial Law, vol I, Bucharest,
1992, p. 142.
32. See, Octavian Căpăţînă, commercial law - the general ", op. cit., p. 351.
33. See, Octavian Căpăţînă, commercial law - the general ", op. cit., p. 352-
353
34. For the purposes stated to the Court of Cassation ruled French,
Department of Trade, by decision of 1 February 1966, the "Gazette du
Palais, 1966, 2.13.
35. French Court of Cassation, 3 Department of Civil decision of 25 April
1972, in Bul letin des décisions ¬ ", 1972, vol 3, n. 252, p. 179.
36. See, Octavian Căpăţînă, commercial law - the general ", op. cit., p. 355.
37. See, Octavian Căpăţînă, commercial law - the general ", op. cit., p. 356.
38. French Court of Cassation, Civil Section, Decision of 27 November
1991, in Bulletin des décisions, 1991, vol 3, no. 289, p. 170.
39. See, Octavian Căpăţînă, commercial law - the general ", op. cit., p. 356-
357 and authors cited there
40. See, Octavian Căpăţînă, commercial law - the general ", op. cit., p. 357
41. M. Juglart, B. Ippolito, Traité de droit commercial, vol. ed. 4, Paris,
1982, p. 566-571, quoted by Octavian Căpăţînă, commercial law,
Editura Lumina Lex, Bucureşti, 1998, p. 358.
42. See, Octavian Căpăţînă, commercial law - the general ", op. cit., p. 358
et seq.
43. See IN Finţescu op. cit., vol I. p. 165 et seq.
44. IL Georgescu, Romanian Commercial Law, vol I, Bucharest, 1947. p.
216. See also St. Cărpenaru op. cit., vol I. p. 142 and p. 144
45. J. Hamel, G. Lagardère, desirable commercial Traité, II, Paris 1966, p.
1011, quoted the head of Octavian, commercial law, op. cit., p. 359.
46. P. Roubier, quoted, Octavian Căpăţînă, commercial law - the general ",
op. cit., p. 361
47. See, Octavian Căpăţînă, commercial law - the general ", op. cit., p. 362.
48. See in this regard in Finţescu op. cit., vol I, p. 443 et seq; St. Cărpenaru
op. cit., p. 144 et seq.
49. This requirement stems from Article. 29 of Law no. 26/1990 regarding
trade register, republished with changes in the Official Gazette no. 49
of 4 February 1998.
50. See Rum Vonica Peter, op. cit., p. 871.
51. See C. Balescu, Course of Commercial Law, ed. 1946, p. 217
52. For these issues see Peter Vonica Rum, op. cit., p. 873.
53. See Rum Vonica Peter, op. cit., p. 874
54. For more about the elements of industrial property law, see V. Ros,
"Intellectual property law", Global Publishing Lex, Bucureşti, 2000
55. See, art. 3 points. of Law no. 84/1998 on trademarks and geographical
indications
56. See, art. 3 points. f of Law. 84/1998
57. See V. Ros, op. cit, p. 126 et seq.
58. See, Stanciu D. Cărpenaru op. cit., p. 121
59. See D. Gălăşescu, Commercial Law, Bucharest, 1948, p. 366. In the
sense that the debts are part of fund trading, see Cas. III, December. no.
160/1939, in judicial practice in commercial matters, vol I, p. 229.
60. SCJ sections. com December. no. 160/1996, the journal of commercial
law no. 9 / 1996, p. 156; SCJ sections. com December. no. 481/1995,
the Law no. 3 / 1996, p. 93
61. See D. Chirica, legal regime applicable to rental housing by area
destination other than that housing the Law no. 4 / 1993, p. 25 et seq.;
Maravela GT, I. Stanciu, Possibility court to decide the termination of a
contract to rent a commercial space in commercial law journal, no. 7 - 8
/ 1996, p. 135 et seq.
62. In French law, the rental of premises where commercial activity is
governed by special legislation, which provides particular protection
lessee, by recognizing a right of renewal of the rental contract -
Cărpenaru D. Stanciu, Commercial Law, op. cit., p. 122.