I’d like to clarify that I’m not suggesting that a lawyer is putting one over on the judge by providing a legal theory which the judge can use to support a gut reaction, but rather helping the judge.
I’m not a litigator, but I keep up with franchise law cases as they are published and often do research into older cases. Franchising cases are indeed commercial cases, and in most of them neither party can usualy be tagged as villain or victim. But I often have a sense that one party or the other somehow “deserves” to win.
This may be a reflection of the franchisor vs. franchisee situation, and the fact that these cases are often very fact-dependent. It may not be generalizable to other commercial litigation. My law school contracts teacher thought it was broadly applicable, but I haven’t the depth of experience in non-franchise commercial litigation to know if he was right. It’s a theory that appeals to me a lot, however, since it seems to fit human nature.
Well, then you know the old saw – “good cases make bad law.”
When you’ve got a case in front of you in which one party clearly deserves to win – it’s always a situation in which legal principle is likely to lose and which probably shouldn’t be used as precedent.
Something like what was described in the the OP happens near me. Local charities such as the Boy Scouts buy boxes of Krispy Kreme donuts and sell them in front of Walmart. These are donuts that they have bought from the local Krispy Kreme store and are clearly marked as Krispy Kremes on the box. Apparently no one has shut them down as it still happens occasionally.
It would seem that it is legal as long as they advertise as a store that sells Krispy Kremes and not a Krispy Kreme store.
I remember a news article several months ago that was very similar. I will do a search when the board isn’t so busy. Here is what I remember:
A carpet store began selling Krispy Kreme donoughts, in addition to carpets, as a way of attacting people to the store. The nearest Krispy Kreme store was very far away. Krispy Kreme found out and asked the store to stop it.
It’s my understanding that groups that do this–Boy scouts, churches, etc., do this with the full knowledge of Krispy Kreme. I think they even get a small discount when they buy them.
http://www.krispykreme.com/fund.html
So they’re selling them with explicit permission from Krispy Kreme.