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Independent Ink: Supreme Court Abandons Market Power Presumption of Patents
Franchisors that own intellectual property (patents, copyrights, or trademarks) for use as part of the franchise system have long been confronted with an unfortunate and misguided presumption that their intellectual property rights automatically gave them market power ' an essential element of many antitrust claims ' in the system's patented, copyrighted, or trademarked products and services. From an antitrust perspective, this presumption, although rebuttable, created a significant hurdle for franchisors accused of an illegal tying arrangement ' which requires, as a preliminary element, proof of market power in the allegedly tying product (often the franchise itself).
Although this presumption of market power has largely been discredited by antitrust scholars, economists, and even some courts, it continued to persist in many forms. As recently as February, while preparing to defend tying and other antitrust claims at trial on behalf of a restaurant franchisor based in Texas, my colleagues and I learned that the Fifth Circuit pattern instructions on tying arrangements expressly provided that the 'existence of a registered trademark in association with the alleged 'tying' product gives rise to a presumption that the product does possess economic power … ' See Fifth Circuit Pattern Instruction, '6.2. As luck would have it, on the second day of that trial, March 1, 2006, the Supreme Court issued its decision in Illinois Tool Works, Inc. v. Independent Ink, Inc., 126 S. Ct. 1281 (2006) and sounded the final death knell on such market power presumptions in the tying context.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Coverage Issues Stemming from Dry Cleaner Contamination Suits
In recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.