The Fair Trade Act and the Law of Restrictive Agreements Affecting Chattels

THE outstanding facts about the Fair Trade Acts are that they were passed in a short period of time in 44 states, that they have been declared constitutional by the Supreme Court and by state courts following it, that they have been shielded from conflict with the federal anti-trust laws by the Miller-Tydings amendment, and that they permit the person under whose trade-mark goods are sold to establish, by contract with a distributor, the resale price for goods sold under that trade-mark by any distributor who has notice of the contract. These facts create, of course, important and difficult problems of practical adjustment of detail. Apparently they also invite attempts which seek to generalize the effect of the Acts on a variety of situations other than that with which they expressly deal and to place them appropriately in the scheme of general legal doctrine. The committee in charge of the 1939 program of the Round Table on Equity of the Association of American Law Schools had the latter objects in mind when it chose for discussion the topic stated by the title of this Article. It suggested that the discussion be based on the background of the law of covenants or restrictions running with land. It believed that the fundamental questions involved were of property law, and that the discussion should therefore consider the nature of trademarks and the extent to which they can be regarded as property. And it desired consideration of how the important reversal of policy with respect to resale price maintenance affects the legal doctrine with respect to restrictions in general on the sale or use of chattels