Luv N’ Care sold Big Lots Beatrix Potter products after the expiration of its license from Frederick Warne & Co., Inc. Beatrice Potter as many will remember created the world of Peter Rabbit and his friends and family (Flopsy, Mopsy and Cottontail among them). Big Lots brought suit for breach of warranty and Luv N’ Care counterclaimed to recover on unpaid invoices. While there is a much made in the case about when a contract arose and the like in an effort by Luv N’ Care to try to cast the sale as within the license period, the court grants summary judgment to Big Lots on the issue of infringement and is required to indemnify Big Lots on any damages from the sale of the infringed Beatrice Potter products. The seller Luv N’ Care, though, does in the end receive payment on its invoices (after the damages from infringement are subtracted, of course). Big Lots in the end becomes a good case about both merchants and rogues (if I might not be too harsh here, perhaps a thief as well)? It would seem that Mercury would be the patron of both.
Tuesday, February 26, 2008
An ode to Mercury . . . or at least a mention
For my first blog entry, a little history about commerce might just be great. So, at this moment of the launching of the commercial law blog, a mention of Mercury, the Roman god of commerce. Mercury . . . to whom commercial law professors (though not necessarily our students) are thankful for words such as market, merchandise, and merchant. Apparently, Mercury, was the patron of travelers and merchants (he was the deity of commerce after all), but also to rogues and thieves. The tie-in between merchants and rogues and thieves brings to mind a recent case involving Big Lots Stores, Inc. and one of its distributors, Luv N’ Care. For those who want to read the case see, Big Lots Stores, Inc. v. Luv N' Care, 62 U.C.C. Rep. Serv. 2d (CBC) 522 (S.D. Ohio 2007). The case involves a less litigated provision of the U.C.C. Article 2, 2-312(3) requiring merchants to warrant that goods sold are free of claims regarding infringement. Of course, the basic idea here is that a buyer should receive a good, clean title to goods.