From Our Readers

• Publication year: 1975
• Pages: 250
• Citation: Vol. 4 No. 2 Pg. 250

4 Colo.Law. 250 Colorado Lawyer 1975.

1975, February, Pg. 250. From our Readers

---

250

Vol. 4, No. 2, Pg. 250

From our Readers

Editor

Mr. McIntosh's article on franchising [The Colorado Lawyer, January 1975] was very intriguing, but certain aspects of his treatment of trademark tying stand out as potentially misleading.

While § 3 of the Clayton Act (codified as 15 U.S.C. § 14) does proscribe the type of conduct involved in trademark tying, that section speaks in terms of "goods, wares, merchandise, machinery, supplies or other commodities."

Under the familiar rule of statutory construction, ejusdem generis, it... seems... plain that Congress all but expressly excluded trademark licenses from § 3 coverage. E.g., Schuler v. Better Equip. Launder Center, 1973-2 CCH Trade Cas. ¶ 74,617 (D. Mass., 1973).

It should be noted that the very same court refused to dismiss a count in the complaint alleging that the conduct was an unreasonable restraint of trade and commerce within the purview of § 1 of the Sherman Act (codified as 15 U.S.C. § 1). Id.

Second, it should be understood that requiring purchase from the franchisor himself will usually involve issues of far different magnitude than are involved when the franchisor requires purchase from some economically unrelated designee. See, e.g., Barby's Frosted Foods, Inc. v. McDonald's Corp., 1973-2 Trade Cas. ¶ 74,622 (D. N.J., 1973); Mid-America Icee, Inc. v. John E. Mitchell Co., 1973-2 Trade Cas. ¶ 74,681 (D. Ore., 1973) esp. at page 94,990; Belliston v. Texaco, Inc., 455 F.2d 175 (CA 10, 1972).

Finally, the "cornerstoning" of profits on sales of "tied" items is a practice much more honored in the breach than in the observance. Chicken Delight really carried that practice to a bizarre extreme.

In sum, as the Court of Appeals for the Ninth Circuit very recently cautioned: "Trademark infringement is a peculiarly complex area of the law. Its hallmarks are doctrinal confusion, conflicting results, and judicial prolixity." HMH Publishing Co.,...