USA: State legislatures strengthen dealer protection

Automotive News reported last month (here) that states in the USA are strengthening laws to protect dealers. The story focuses on the cost to a Mercedes-Benz dealer of complying with the manufacturer's specification for the premises from which the dealership runs - and the dealer principal's fear that not making the huge investment will mean that he will miss out on bonuses.

How can the law protect dealers? Well, for example in Virginia the law restricts the manufacturer from requiring dealers to remodel until ten years has elapsed since the last remodelling. There are probably some fine points of definition involved in that, but the principal seems good. Moreover, dealers have the right to source the materials for the remodelling from local businesses - they aren't obliged to go to the suppliers the manufacturer nominates. Other states have similar laws: in Colorado, a dealer who's spent $250,000 doing what the manufacturer wanted can't be required to remodel for seven years.

The state of the economy doesn't seem to be stopping manufacturers from insisting on substantial investments from dealers - in the States, or in Europe. Which makes it all the stranger that state legislatures on the other side of the Atlantic are tightening their laws while over here legal protection is being removed.

Manufacturers' rights of first refusal in the USA

A dealer's ability to sell the business complete with franchise has been a controversial topic under the block exemption for years. Not surprisingly, perhaps, it doesn't only affect dealers in Europe. Start Automobile, a US Mercedes-Benz dealer, was recently prevented from selling its Mercedes dealership:  Mercedes-Benz USA, LLC v. Star Automobile Co., et al., No. 3-11-cv-73, Order For Preliminary Injunction, (M.D. Ga. June 3, 2011).

The dealer agreement gave the manufacturer a right of first refusal, and on a preliminary application the Federal District Court accepted that the manufacturer would suffer "immediate and irreparable injury" if the injunction were not granted.

Not only did the dealer agreement to give the manufacturer a right of first refusal, but it also had a statutory right of first refusal under Georgia law. Applying principles governing the grant of an injunction in such a situation, the court said that an monetary damages would be difficult, if not impossible, to calculate. The harm the manufacturer would suffer if the injunction were denied would be likely to exceed any damage that an injunction would cause the defendant. Although there would be a delay in the transfer of the dealership, the company would continue to operate it.

The dealer challenged injunction on the grounds that it went against a state dealer statutory provision which governs the review and approval of all an ordinary business sale agreements as applied to dealers. And dealers enjoy a great deal more protection in the United States and they do in Europe, but the court explained that the rights of first refusal should be regarded as a counterweight to the approval provision. The court said this was "a less restrictive form of control a franchisor has over the identity of its business partners."

As this is only a preliminary injunction, the case might yet go to trial - though the court made clear that it considered the manufacturer was likely to succeed on its claim.

Validity of Commission's "soft law"

We're accustomed to block exemption regulations being accompanied by "explanatory brochures" and now "guidelines", and very helpful they are given the lack of detail in the actual regulations. They don't apply only to the motor vehicle block exemption (in which expression I now include the vertical restraints block exemption, as it's an integral part of the industry's exemption), but of course that's where we are particularly interested in Guidelines. And it's clear that Guidelines are intended to be much more legally significant than the old explanatory brochures.
Which makes this article by Wolfgang Weiß in the Journal of European Competition Law and Practice particularly interesting. As the abstract says, following the Treaty of Lisbon, is it lawful for the Commission to adopt "soft law" interpretations of primary and secondary legislation? Is it in effect amending the law, contrary to the democratic principles laid down in the Treaty? As the Abstract of teh article says,

Article 290 of the Treaty on the Functioning of the European Union (TFEU) considerably increased the legal requirements for authorizing the Commission to adopt delegated legislation. These requirements cannot be undermined by adopting administrative standards, especially if these are of considerable legal significance.

It's a piece that will certainly bear careful reading (and, if you don't already subscribe to the Journal, you can get a day's access to the article for $50), and when I have had a chance to give it proper attention I will comment some more. 

No summary judgment in New York dealer dispute

... but does the manufacturer owe a fiduciary duty? Aaron Zerykier of Farrell Fritz PC reports a decision on 14 July by Justice Emerson in the Supreme Court of Suffolk County, New York. Two Audi dealers, aggrieved by the appointment of a new dealer in a bodering market area which had been assigned to them, sued Audi and one of its executive alleging, among other things, breaches of fiduciary duty and breach of contract.

The court summarily dismissed the claims for what the article calls "tortuous interference" (many American lawyers seem to have trouble with the word "tortious": the interference might well have been tortuous too, but that surely discloses no legal remedy) and aiding and abetting breach of fiduciary duty against the executive. A corporate officer cannot generally be held liable for his actions on behalf of the corporation if he is acting in good faith. There are exceptions to that rule, but the evidence did not suggest that they applied in this case.

As for the claim for breach of fiduciary duty claim against the manufacturer, the court considered that this might well have some legs. There were issues of fact about the nature and extent of the manufacturer’s relationship with the plaintiff dealership which may, exceptionally, have created a fiduciary relationship. The breach of fiduciary duty claim did not merely repeat the breach of contract claim because a fiduciary duty may arise independent of the contract. The court declined to give summary judgment dismissing the claims for breach of contract and breach of the implied covenant of good faith and fair dealing, because there was an issue of fact whether the manufacturer exercised the discretion it had in its relations with its dealers in bad faith.

A judgment of a court in the US declining to decide a case without a trial is rarely likely to be interesting. Here, however, there are several interesting points, not least the question whether a manufacturer owes its dealers a fiduciary duty. Were that the case in English law, things would be fundamentally different from the way they are - and perhaps if interested parties succeed in persuading the Commission that dealer agreements should be treated as, or like, commercial agency agreements, it might not be so very far-fetched!

Legend Autorama, Ltd. et al v. Audi of Amer., Inc. et al., Sup Ct, Suffolk County, July 14, 2011, Emerson, J, Index No. 38667/08.

CV manufacturer not dominant in repair market

I seem to find myself reading judgments of the Bundesgerichtshof, the German federal supreme court, more often these days than those of any other court. It's doing my scant knowledge of German a lot of good, too. They have more than their fair share of cases relating to competition in the motor industry. The latest to come to my attention (a bit tardily, I'm afraid) is case no ZR 7/09 from 30 March, in which a Daimler commercial vehicle dealer and repairer sought appointment to MAN's network too. When MAN turned the application down, the dealer claimed that it was an abuse of MAN's dominant position contrary to § 20 of the Gesetz gegen Wettbewerbsbeschränkungen (law against restraints of competition). This isn't a straightforward rehash of Article 102 TFEU, as what I still think of as Article 86 is now known - but it amounts to a similar thing.

To resolve a question of abuse of a dominant position, you have to start by considering whether the undertaking concerned is in a dominant position in the market, which means taking a step back and working out what the relevant market is. The lower court had taken the view that the relevant market was the one in which customers bought services from MAN repairers - the highly brand-specific market which the Commission believes requires the strict regulation provided for under the 2010 block exemption arrangements. The BGH rejected this approach, which meant rejecting the claim.

The BGH considered that the relevant market was the market for all those products, services, and rights that enable a repairer to gain entry to the market for repair and maintenance services for commercial vehicles – the "downstream" market. The "upstream" market, as it might therefore be called, includes spare parts, diagnostic tools, repair tools, and training in brand-specific know-how as well as admission to the network.

This market is not brand-specific, according to the judgment. It is not limited to goods, services, or rights supplied by MAN, and accordingly the vehicle manufacturer did not hold a dominant position in it. Admission to the MAN was not a prerequisite for a repair shop to be active in the downstream market for repair and maintenance services. A non-authorised repair shop might not be able to do warranty work, perform services on a goodwill basis (at least, not on the basis of the manufacturer's goodwill), or participate in recall campaigns, but could still offer plenty of other. The existence of such independent repair shops did not escape the notice of the Court, and illustrated that providing these services was economically attractive. 

MAN might enjoy a big share of the downstream market for repair and maintenance services for MAN vehicles, but the Court took the view that this had no bearing on its position in the "upstream" market, the market for facilities for entry to the downstream market.

This is a rather different market analysis to that adopted by the Commission, which has tended to focus on the downstream market. Given that this is the market in which consumers are active, this is not entirely surprising, and ultimately what competition law needs to concern itself with is consumer welfare. The fact that this case involved commercial vehicles probably makes the downstream market less important, though I have to admit to not having worked through the judgment to see whether this is in fact relevant. It's certainly an interesting statement about manufacturer dominance in the repair market, and one with a surprising outcome which might prove influential in the future.

Refusal to appoint repairer not abuse of dominant position

I seem to find myself reading judgments of the Bundesgerichtshof, the German federal supreme court, more often these days than those of any other court. It's doing my scant knowledge of German a lot of good, too. They have more than their fair share of cases relating to competition in the motor industry. The latest to come to my attention (a bit tardily, I'm afraid) is case no ZR 7/09 from 30 March, in which a Daimler commercial vehicle dealer and repairer sought appointment to MAN's network too. When MAN turned the application down, the dealer claimed that it was an abuse of MAN's dominant position contrary to § 20 of the Gesetz gegen Wettbewerbsbeschränkungen (law against restraints of competition). This isn't a straightforward rehash of Article 102 TFEU, as what I still think of as Article 86 is now known - but it amounts to a similar thing.

To resolve a question of abuse of a dominant position, you have to start by considering whether the undertaking concerned is in a dominant position in the market, which means taking a step back and working out what the relevant market is. The lower court had taken the view that the relevant market was the one in which customers bought services from MAN repairers - the highly brand-specific market which the Commission believes requires the strict regulation provided for under the 2010 block exemption arrangements. The BGH rejected this approach, which meant rejecting the claim.

The BGH considered that the relevant market was the market for all those products, services, and rights that enable a repairer to gain entry to the market for repair and maintenance services for commercial vehicles – the "downstream" market. The "upstream" market, as it might therefore be called, includes spare parts, diagnostic tools, repair tools, and training in brand-specific know-how as well as admission to the network.

This market is not brand-specific, according to the judgment. It is not limited to goods, services, or rights supplied by MAN, and accordingly the vehicle manufacturer did not hold a dominant position in it. Admission to the MAN was not a prerequisite for a repair shop to be active in the downstream market for repair and maintenance services. A non-authorised repair shop might not be able to do warranty work, perform services on a goodwill basis (at least, not on the basis of the manufacturer's goodwill), or participate in recall campaigns, but could still offer plenty of other. The existence of such independent repair shops did not escape the notice of the Court, and illustrated that providing these services was economically attractive. 

MAN might enjoy a big share of the downstream market for repair and maintenance services for MAN vehicles, but the Court took the view that this had no bearing on its position in the "upstream" market, the market for facilities for entry to the downstream market.

This is a rather different market analysis to that adopted by the Commission, which has tended to focus on the downstream market. Given that this is the market in which consumers are active, this is not entirely surprising, and ultimately what competition law needs to concern itself with is consumer welfare. The fact that this case involved commercial vehicles probably makes the downstream market less important, though I have to admit to not having worked through the judgment to see whether this is in fact relevant. It's certainly an interesting statement about manufacturer dominance in the repair market, and one with a surprising outcome which might prove influential in the future.

Car price differentials in 2010

The European Commission has published its latest car price report (press release here). The data are six months old, relating to the start of this year.

It seems a long time since this information was anxiously awaited, when car price differences and the (misguided, in my view) attempt to prevent them drove the whole policy underlying the block exemption. Now of course the Commission is able to say that the market for new vehicles is competitive and doesn't need the close attention of which a sectoral block exemption was symptomatic. Curiously, though, we still have special rules and extensive quasi-legal guidelines which rather indicate that the motor sector remains a special case - just special in a different way, I guess. The Commission is certainly not as excited about the price differentials as it used to be, although in a true single market perhaps it should zealously stamp out any differentials ... And some of them still look pretty big to me.

One major explanation for the ending of price differentials has been the advent of the Euro, and the Commission's report distinguishes the situation in the Eurozone from that in the non-Eurozone countries. What if the Euro fails to survive its present difficulties? Perhaps it will be back to the good old days of parallel imports - and sectoral block exemptions.

Widely differing tax treatment of car purchases also made a large contribution to the problem of price differentials, and that remains: VAT rates are far from harmonised. But even more importantly, spending power is more uneven than ever - during the last few years, in which price differentials have closed, the EU has expanded considerably, bringing in eastern European countries where spending power must be a great deal less than in some other Member States. The price might be the same in Germany and Bulgaria

Selling franchised dealerships

One of the important pieces of protection given to dealers in the 2002 Block Exemption - still there, until 2013, but cut from the new version of the Regulation - is the right to transfer the franchise to another member of the network. Previously, vehicle manufacturers had generally reserved the right to dictate to whom a dealer might sell, and often they would have preferred candidates. "Of course you can sell your dealership: and this is who you can sell it to ...". The provision in the 2002 Regulation that effectively said members of the network were pre-approved recognised an inherent truth in the way dealer networks are structured, but at the same time deprived manufacturers of protection against over-concentration of franchises in the hands of large dealer groups, which can be as much a problem for competition as vehicle manufacturers having market power.

With the removal of this condition for exemption, the protection of dealers will be significantly weakened. Whether this is a good or bad thing depends in the first place on where you stand - but to my mind, this is a dealer protection provision too far. No-one should be obliged to do business with someone they haven't chosen. Competition law does not generally require this, although for a dominant firm a refusal to supply may be an abuse (and therefore a breach of Article 102 TFEU or Part II of the Competition Act). Within the manufacturer-dealer relationship, of course, the manufacturer might be regarded as dominant, and certainly just because the new Regulation is silent on the question of transfers doesn't mean that the manufacturer will always be able to impose its wishes on the dealer - there is no exemption from Article 102.

However, the biggest limitation on the usefulness of the block exemption has always been the gap between the rights given to dealers and the practicalities of enforcing them. Legal action against a vehicle manufacturer to enforce rights given by the Regulation has clearly never been an attractive proposition for dealers: I can't think of any legal actions being brought. There have been a few disputes referred to expert determination, as the Regulation also requires for certain matters, but not many. Even just intimating to one's supplier that one's rights might have been breached is likely to be a step too far for most dealers.

The removal of the automatic right to transfer will look to dealers like a huge step backwards. On the face of it, manufacturers will be able arbitrarily to stop dealers transferring their business as a going concern. In fact, it merely reinforces the fact that the value of that business is built entirely on a contract, and it is common to find that rights under a commercial contract cannot be transferred freely. Obligations perhaps, but that makes no difference here. And even now, if the manufacturer doesn't like what the dealer proposes to do it can terminate the contract on notice. It would have to state its reasons, which must be objective, but unless it were blatantly anti-competitive it's not likely to help the dealer much as the block exemption contains no automatic sanction for a breach of this requirement. So perhaps the current dealer protection measure doesn't count for much anyway.

So there's a window of opportunity until the end of May 2013 for dealers to sell or buy, if they see an opportunity for consolidation - and manufacturers will probably be cautious about trying to terminate in such circumstances. (Of course, many networks are under wholesale  notices of termination during the two-year run-up to the change anyway.) After that, the basic competition rules will be there as a long-stop to prevent egregious anti-competitive behaviour - as they always have been. And there remains the possibility that the matter will be dealt with in the much-vaunted Code of Conduct.

However, the Code of good practice regarding certain aspects of vertical agreements in the motor vehicle sector. seems to be in trouble. The manufacturers, through ACEA, had offered a draft, but it didn't cover all the aspects of dealer protection - being limited to dispute resolution and minimum periods of notice. The Commission, which at first adopted a "hands off" approach consistent with its view that dealer protection had nothing to do with competition, has now become more proactive and announced that it wanted ACEA to reach agreement with CECRA before November this year. Subsequently it seems that ACEA has decided not to take part in further discussions - presumably, standing by its draft Code. So whether we will ever see anything in a form useful to dealers is up in the air - but as ACEA will be well aware there's always the general competition law lurking in the background to deal with any arbitrary exercise of power by vehicle manufacturers - if dealers dare invoke it.

Dealer standards American style

It's a story very reminiscent of what happens over here too. Ford has told Lincoln dealers to put their hands in their pockets and come up with an average of $1 million to remodel their dealerships. For those dealers fortunate enough to represent Ford too, the average is $1.9 million, Automotive News reports. But maybe some British dealers (or  manufacturers) would regard that as small beer? All in the name of "dealer standards", "brand values" and "customer experience."

Block exemption effect on property market

Nothing new about block exemption replacement creating uncertainty in all sorts of ways, including the property market. Automotive Management has this story. The trend, not only for block exemption reasons, is towards larger dealers, and it's the bigger dealer groups (not to mention the sponsored dealers) who are financially in a position to benefit from the disruption caused by the block exemption. I certainly recall clients deciding that it was time to retire when a new block exemption came along - back in '95 and '02.

Mike Pearce, of Rapleys, the nationwide commercial property and planning consultants, is quoted in AM on the demand for showroom properties from retailers and fast-fit outlets, which I suppose conveniently (in a way) meshes with dealers moving to ever-more-flamboyant gin palaces on the edge of town. He says that while manufacturers have not been raising the dealer standards bar during the financial crisis, they are changing tack now and the cost of entry to the established and especially premium networks, already high, will increase. On the other hand, he thinks that multifranchising (multibranding as the block exemption has unnecessarily rechristened it) for smaller marques will be the way forward for many smaller dealers as well as for smaller manufacturers and new entrants. What a pity that the Commission has effectively written multifranchising out of the block exemption at this stage - not that it's prohibited, of course, just not a right for dealers.

NFDA concern over new agreements

New agreements are being issued by manufacturers, and the National Franchise Dealer Association (NFDA) is warning dealer councils that they should alert their members to them. Press reports (such as this one in Fleet News) are not clear exactly what they need to be alerted about - but the main concern seems to be that dealers are not being given adequate opportunity to take advice on the effect of the new agreements. Sue Robinson, director of RMI NFDA, said:

The European Commission has created an expectation that manufacturers should operate in a transparent manner with their dealers and adhere to minimum standards of behaviour in their commercial relationships, as set out in a published code of conduct. We are urging all dealer councils to lobby manufacturers for such a code that would make the relationship between dealers and manufacturers as fair as possible.

The Supplementary Guidelines on the new motor vehicle block exemption (Regulation 461/2010) say (in para 7):

The history of competition enforcement in this sector shows that certain restraints can be arrived at either as a result of explicit direct contractual obligations or through indirect obligations or indirect means which nonetheless achieve the same anti-competitive result. Suppliers wishing to influence a distributor's competitive behaviour may, for instance, resort to threats or intimidation, warnings or penalties. They may also delay or suspend deliveries or threaten to terminate the contracts of distributors that sell to foreign consumers or fail to observe a given price level. Transparent relationships between contracting parties would normally reduce the risk of manufacturers being held responsible for using such indirect forms of pressure aimed at achieving anticompetitive outcomes. Adhering to a Code of Conduct is one means of achieving greater transparency in commercial relationships between parties. Such codes may inter alia provide for notice periods for contract termination, which may be determined in function of the contract duration, for compensation to be given for outstanding relationship- specific investments made by the dealer in case of early termination without just cause, as well as for arbitration as an alternative mechanism for dispute resolution. If a supplier incorporates such a Code of Conduct into its agreements with distributors and repairers, makes it publicly available, and complies with its provisions, this will be regarded as a relevant factor for assessing the supplier's conduct in individual cases. 

I have added the emphasis - both the italics and the bold. That word "if" makes a huge difference - not that the NFDA is wrong, but clearly it is not a mandatory requirement to have a Code. Of course, the sort of Code the guidelines are talking about would do the job of the old dealer protection measures in the block exemption - the ones that the Commission decided had no place in a competition instrument ...

Turkey: Competition Board fines car and CV businesses over cartel

Turkey's Competition Board recently concluded its investigations in the Turkish motor vehicles sector and imposed record fines, according to an article on Mondaq (free subscription) by Gönenç Gürkaynak of ELIG, Attorneys-at-Law, who  represented Mercedes-Benz Türk A.Ş.

The Authority launched an investigation against 23 passenger car and light commercial vehicle companies in September 2009, suspecting that a cartel was being operated contrary to the Competition Law. The  undertakings it investigated were suspected of having discussed future pricing policies, stock data, sales targets and sales strategies. 

The Board decided that the investigated undertakings violated Article 4 of the Competition Law (in similar terms to Article 101 of the Treaty on the Functioning of the European Union and Chapter 1 of the UK's Competition Act 1998) and imposed financial penalties on 15 undertakings, totalling approximately 277 million TL. This is by far the largest amount of fine that has ever been imposed by the Board.

Beetle design invalid

Alicante News, the organ of the Office for Harmonisation in the Internal Market, reports a decision of the Invalidity Division (ICD 7100) declaring invalid VW's 2003 registration of the Beetle shape as a Community design.

The application was filed as soon as registered Community designs became available. Unfortunately for VW, they had already obtained international design registrations for the original full-size model of the new Beetle and the first production model, which meant that there can never have been much chance of convincing anyone that the 2003 application was for a design that had individual character compared to the earlier designs. Indeed, I find it hard to see how it could have been considered novel, but it was for want of individual character that the design was declared invalid.

The invalidity proceedings were brought by model car maker Autec, which previously obtained a judgment from the Court of Justice, Case C-48/05 Adam Opel v Autec, controversially allowing toy manufacturers to use the trade marks of the real things on their own products. So, 2-0 to the toymakers so far - and should this hopeless-looking registered Community design be counted as an own goal?

The highest level of dealer protection?

Manufacturers will be made responsible for unsold cars under a new law in Spain, Automotive News Europe reported on 17 February. Dealers would be entitled to claim a refund for unsold cars which have been hanging around for three months, and sometimes to charge the carmaker for their sales teams' efforts and other expenses.

The manufacturers will also be required to compensate terminated dealers for loss of business and the cost of layoffs. The same would also apply if the dealer's appointment was not renewed. This echoes proposals, emanating from the European Distribution Lawyers group and other sources, for dealer agreements to be treated like commercial agency agreements under European Union law.

Sounds too good to be true? Perhaps it is - though it's not yet 1 April, as you'll have noticed. In fact, it seems that the vehicle manufacturers were taken rather by surprise when the proposed Spanish law was announced, and they have prevailed on the Spanish government to put it on the back burner for the time being. It certainly seems to have contributed to a rift between the two sides of the industry in Spain.

The law was published along with a bundle of other measures to stimulate the Spanish economy (though how this one, however worthy, might be expected to have that effect isn't clear). The industry ministry quickly announced that it was calling a meeting to assess the new law with regional governments, unions and car manufacturers (did they forget dealers?). Revised proposals are expected within three months.

ANFAC, the Spanish carmakers' association, at first indicated (predictably) that its members would have to reconsider their investment plans. ANFAC chairman Francisco Javier Garcia Sanz said that the lawmakers had "made a mistake and they are going to have to correct it. If they do not, they will be responsible for the loss of investment and employment that this law will cause." Exactly the sort of thing we'd have said back in the days when I worked at the SMMT. On the other hand, the dealers's association Faconauto said that the new law would safeguard jobs by reforming a legal framework that left them at the whim of changes to dealer agreements. According to the Spanish website cincodias.com, Faconauto claims the price of cars would come down by an average of €400 to €500 as a result of the law and the closure of 30 per cent of dealer outlets would be prevented. CincoDias also reports that ANFAC points out that the protection of the law would benefit shareholders, not employees, of dealers, an analysis that might rebound on the vehicle  manufacturers one day.

Where's the beef?

(Cross-posted from my IP blog)

The spat over Ferrari's use of the designation F150 for this year's Formula One car,  reported in the US press (WSJ here), is about dilution. Dilution, would you believe, of Ford's F-150 registered trade mark, used for pick-up trucks.

In fact Ferrari weren't using "F150" as the designation of the car, but calling it the F150th Italia, a rather convoluted reference to the unification of Italy in 1861. So they settled on the basis that they would use the full designation only. Whether TV commentators will or not is, I suppose, another matter, but there's not often much need to quote model numbers - there will only be one Ferrari model taking part in the races, after all. The print media might be a different story.

I still don't see how a claim of dilution could hold water. Are Ferrari taking some sort of advantage of the repute attaching to Ford's trade mark? Are you joking? How many examples of this model do you think they plan to sell, anyway? Are they doing something detrimental to it? Quite the opposite, I'd have thought. Does anyone in the US pay any attention to Formula One, especially since that farce at Indy that called itself the US Grand Prix a few years ago?

So (as Garibaldi might have said), where's the beef?

Protecting secret technology

Trade secrets and intellectual property are where value lies in the motor industry these days, according to a rather inconsequential article which seems to have been reposted from the New Tork Times. Noting that electric and hybrid vehicles require a lot of new technology, and that three senior Renault executives were fired not long ago for leaking secret information (to what it calls an "organised international network", whatever that means), the article makes the far-from-startling point that intellectual property is important to the motor industry. To be fair, it says it always has been: which gives me an opportunity to mention, arbitrarily, Nichols Advanced Vehicle Systems Inc & Ors v Rees, Oliver & Ors [1979] RPC 127 - as a motor racing fan, perhaps my earliest knowledge of the importance and power of intellectual property.

The novelty is that it's not just mechanical intellectual property - an issue in the motor industry ever since Otto's patents for the four-stroke cycle were held invalid over de Rochas's earlier patents - but another of the three areas into which patent attorneys divide their world, electronics (the third being, I believe, chemistry - broad interpretations are needed). In particular, it's the software that controls modern vehicles, which has been present for many years but which is a whole new ball game now that cars run on stuff other than fossil fuels:

The Chevrolet Volt plug-in hybrid, for example, uses about 10 million lines of computer code to shunt power among the car's battery pack, power inverter, drive motor, gas engine, generator and other subsystems. By comparison, Boeing's new 787 Dreamliner relies on a mere 8 million lines of code.

That statistic strikes me as interesting - but the most likely effect it will have on my mind is to make me wonder about flying by Dreamliner. Should I be reassured that Boeing haven't relied more on electronics, should I be impressed by the economy of their coding, or should I be worried that they might not have put enough computer code in?

The article goes on, in what appears to be a colossal non-sequitur:

"It's a little like the wild, wild West right now," said Jon Lauckner, president of General Motors Ventures, the automaker's new venture capital group.

Not, perhaps, in Europe, though, where at least the Commission is aware of the implications of restrictions on the availability of technical information - and have been trying, through the medium of the block exemption, to do something about it, for years. I wonder whether we are moving into a new phase, in which the car makers argue that all that good stuff about technical information is now old hat as it moves from the field of diagnostics to a central place in the way vehicles work - demanding the strongest possible protection?