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By now, everyone seriously involved in the practice of franchise law is aware of Leegin Creative Leather Products, Inc. v. PSKS, Inc., 2007 WL 1835892 (S. Ct. June 28, 2007). The Supreme Court in Leegin held that vertical resale price maintenance is no longer unlawful in and of itself. Although hailing the decision as overruling a nearly 100-year prohibition on minimum price fixing, the pundits writing in the wake of Leegin have nevertheless hedged their bets on just how revolutionary the decision is. Their constant mantra is this: Leegin does not open the door to unrestrained resale price maintenance, but rather changes the rules under which courts will evaluate sales agreements setting minimum prices. No longer will courts treat them as unlawful per se; they will now evaluate their legality under something called 'the rule of reason.' If a court (or jury) concludes that an agreement establishing a minimum price is an 'unreasonable restraint of trade,' then the supplier has violated the antitrust laws. If the threat of treble damages from such a finding isn't sobering enough, writers warn us that courts may interpret state 'baby Sherman Acts' as still making resale price maintenance unlawful per se, regardless of what the U.S. Supreme Court says.
These warnings are sage advice coming from authors trying to generalize on the broad application of Leegin to a wide variety of suppliers and purchasers of products. After all, the Supreme Court itself warns that 'if the rule of reason were to apply to vertical price restraints, courts would have to be diligent in eliminating their anticompetitive uses from the market.' The problem with carrying this warning to the extreme is that it defeats one of the Supreme Court's very purposes in abandoning the per se rule, namely, to create a degree of certainty for sellers of products rather than serve 'the interests of lawyers … by creating legal distinctions that operate as traps for the unwary ' '
The point of this article is that we franchise lawyers do our clients a disservice when we hedge our bets unduly in this area. We should call a spade a spade when it comes to minimum resale price maintenance by a franchisor: The practice may be a breach of a contract, but it is no longer a federal antitrust violation in light of Leegin. And franchisors should begin to take full advantage of the door now opened by Leegin. Ultimately, Leegin levels the playing field between franchising and integrated supply systems as methods of distributing a product or service (as did decisions like Sylvania, Jefferson Parish, and Kahn before it). Now franchisors, like their competitors that own the entire chain of distribution, can set retail prices (both minimum and maximum) in order to compete in the marketplace. And that is good for franchisors, franchisees, and consumers alike.
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.
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