Features

Highlights of the latest franchising news from around the country.

As in the United States, franchisors in the United Kingdom usually invest in protecting their brand by way of trademark registrations, usually a Community Trade Mark (CTM). However, although they spend a considerable amount of time, money, and resources developing their customer databases and refining their business methodologies and know-how (and detailing this in the franchise Operations Manual, to which their franchisees and employees are given access), U.S. franchisors rarely seem to devote the same resources to protecting these trade secrets in the United Kingdom.

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Should the franchisor's motive in a franchise termination case ever become the central issue? Some courts answer that seeking the true reason for termination is the target inquiry, as if a franchisor could not have a mixed motive for termination. The question turns the trial into a search as to whether the franchisor has breached an implied covenant of good faith and fair dealing which augments the terms of a written franchise agreement. Often the outcome depends on where in the life of the franchise relationship the dispute arises. At the end of the relationship, courts considering the propriety of termination and nonrenewal often treat the role of good faith and fair dealing differently than when, for example, reviewing whether the franchisor imposed unreasonable standards of performance.

Features

Highlights of the latest franchising cases from around the country.

Features

The book "Intangibles" is largely one of policy, but is not without its practical lessons. Baruch Lev's book is a worthwhile read for anyone interested in the management of intangible assets ("intangibles"), such as patents, know-how, and relationships. The book addresses the full scope of intangibles and may be too broad to be of interest to some patent practitioners. However, the book includes interesting observations and supporting data that will reward the practitioner willing to take a broad view of patents and their place in the business world.

Some patent-owning companies choose to participate in standard-setting organizations (SSOs), such as the IEEE, IETF and ANSI. They do so for a variety of business reasons, including the opportunity to monitor industry trends and to influence technological advancement. However, the business advantages of participation must be balanced against its potential legal consequences to the company's IP rights. Accidental or premature disclosure, failure to disclose, and licensing and enforcement practices can lead to loss of patent and trade secret rights, equitable defenses for infringers, and antitrust concerns. The current litigation between Rambus and Infineon provides a cautionary tale for both SSOs and member companies of what can happen if a company participates in an SSO whose IP patent policy is not clearly defined. <i>See, e.g., Rambus, Inc. v. Infineon Technologies AG,</i> 164 F. Supp. 2d 743 (E.D. Va. 2001), <i>aff'd in part, rev'd in part, and vacated in part,</i> 318 Fed. 3d 1081 (Federal Circuit 2003). In order to avoid such losses, companies need to investigate the IP policies of the SSOs to which they belong and carefully assess and monitor their compliance with those policies.

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Patentees need to be aware that if they sue multiple entities at different times and in different courts for patent infringement, they may be "stuck" with the claim construction rendered by the first court in later litigations. As a result, patentees must carefully consider both the venue and order in which they face their opponents.

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Last month, we introduced our primer on the "leniency" standard for FLSA actions, and its interplay with Rule 23 guidelines. We called the quest for class certification "the most feared battle waged in litigation," and went on to explain that if well-regarded class action practitioners were surveyed, there would almost assuredly be a consensus that the quest for class certification is exactly that to a targeted defendant.We discussed the FLSA's opt-in burden, and the liberal standard in our previous article. This month, we address the seemingly irreconcilable approaches taken by some courts.