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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.
The Law of Tying and the Development of the Market Power Presumption
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
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.
Warehouse Liability: Know Before You Stow!
As consumers continue to shift purchasing and consumption habits in the aftermath of the pandemic, manufacturers are increasingly reliant on third-party logistics and warehousing to ensure their products timely reach the market.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
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?