This subchapter shall not affect any suit, proceeding, or appeal pending prior to August 1, 1997.
All acts relating to marks and parts of any other acts inconsistent herewith are hereby repealed on August 1, 1997.
Provided, that as to any application, suit, proceeding, or appeal pending at the time this subchapter takes effect, and for that purpose only, such repeal shall be deemed not to be effective until final determination of said pending application, suit, proceeding, or appeal.
The intent of this subchapter is to provide a system of state trademark registration and protection substantially consistent with the federal system of trademark registration and protection under the Trademark Act of 1946, as amended.
To that end, the construction given the federal act should be examined as persuasive authority for interpreting and construing this subchapter.
History.
Acts 1997, No. 1109, § 20.
U.S. Code.
The Trademark Act of 1946, referred to in this section, is primarily codified as 15 U.S.C. § 1051 et seq.
Chapter 72
Franchises
Research References
Am. Jur.
36 Am. Jur. 2d, Franch., § 1 et seq.
C.J.S.
37 C.J.S., Franch., § 2 et seq.
Subchapter 1
— General Provisions
[Reserved]
Subchapter 2
— Arkansas Franchise Practices Act
Effective Dates.
Acts 1977, No. 355, § 13: Mar. 4, 1977. Emergency clause provided: “The Legislature finds and declares that distribution and sale of franchise agreements in the State of Arkansas vitally affects the general economy of the State, public interest and public welfare; that franchisors as described in this Act, for adequate fees have licensed Arkansas corporations and citizens to use the trade names and formulas; and that in some instances, franchisors collect advertising fees from franchisees which are not expended for advertising purposes; and that some franchisors have, without good cause and to the great prejudice and harm of the citizens of the State of Arkansas, cancelled existing franchise agreements and that other such cancellations are threatened; and that only by the immediate passage of this Act can this situation be remedied and it is therefore necessary in the public interest to define the relationship and responsibilities of franchisors and franchisees in connection with franchise agreements. Therefore, an emergency is declared to exist and this Act being necessary for the preservation of public peace, health and safety, shall be in full force and effect from and after its passage and approval.”
Acts 1979, No. 424, § 3: Mar. 20, 1979. Emergency clause provided: “It is hereby found and determined by the Seventy-Second General Assembly of the State of Arkansas that the definition of franchise contained in the Arkansas Franchise Practices Act is in need of immediate clarification to clearly indicate that a franchise is not created by a lease, license or concession granted by a retailer to sell goods or furnish services on or from the premises occupied by the retailer primarily for its own merchandising activities, and that this Act is immediately necessary to accomplish such clarification. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”
Research References
ALR.
Interference with franchise. 6 A.L.R.4th 195.
Primary liability of private chain franchisor for injury or death caused by franchised premises or equipment, 59 A.L.R.4th 1142.
Wrongful termination of franchise other than automobile dealership contracts, 40 A.L.R.5th 57.
Existence of fiduciary duty between franchisor and franchisee, 52 A.L.R.5th 613.
U. Ark. Little Rock L.J.
Survey of Arkansas Law, Business Law, 1 U. Ark. Little Rock L.J. 118.
Case Notes
Applicability.
This subchapter only applies if the franchisee is required to do business in Arkansas. JRT Inc. v. TCBY Sys., 52 F.3d 734 (8th Cir. 1995).
Choice of Law.
The parties' limited choice of Texas law had no impact on the determination of whether the plaintiff could claim protection under the act where the parties' agreement stated in relevant part, “This Agreement is executed in duplicate on the above date and the laws of the State of Texas shall govern its interpretation;” such language was in sharp contrast with the more broad choice of law clauses scattered throughout the cases, providing that the law of a particular state would “govern the contract.” Heating & Air Specialists, Inc. v. Jones, 180 F.3d 923 (8th Cir. 1999).
The substantive laws of Arkansas generally governed the parties' rights and responsibilities under their agreements and the act applied to those agreements, notwithstanding that the agreements by their express terms did not become effective until signed by the defendant in Texas, the plaintiff communicated by mail or telephone with the defendant's office in Texas periodically throughout their relationship, and the plaintiff performed its part of the agreement by mailing payments to the defendant's Texas address; the plaintiff had executed the agreements in Arkansas, the defendant shipped its goods to the plaintiff in Arkansas, the agreements themselves indicated that the franchise at issue would operate in Arkansas, the plaintiff's right to advertise and sell the defendant's products under the agreements was geographically restricted to Arkansas, the defendant actively sought the plaintiff's participation in the franchise by sending its representatives to Arkansas, and the bulk of the parties' negotiations took place in Arkansas. Heating & Air Specialists, Inc. v. Jones, 180 F.3d 923 (8th Cir. 1999).
Franchises.
A contractual provision that clearly and explicitly provided that the arrangement between the parties would be that of a nonexclusive distributor did not create a franchisor-franchisee relationship between the parties covered by the Arkansas Franchise Practices Act. Consolidated Naturals, Inc. v. Wm. T. Thompson Co., 623 F. Supp. 458 (W.D. Ark. 1985).
Nat'l Ass'n for Healthcare Commc'ns, Inc. v. Cent. Arkansas Area Agency on Aging, Inc., 257 F.3d 732 (8th Cir. 2001). “” Ark.Code Ann. § 4-71-218(b). State registration confers the statewide right to use a service mark in connection with the registered services, subject to defenses such as good faith pri- or use in a particular local market.”
— Ark. Code Ann. § 4-71-218(b) — 1 case
Nat'l Ass'n for Healthcare Commc'ns, Inc. v. Cent. Arkansas Area Agency on Aging, Inc., 257 F.3d 732 (8th Cir. 2001). “” Ark.Code Ann. § 4-71-218(b). State registration confers the statewide right to use a service mark in connection with the registered services, subject to defenses such as good faith pri- or use in a particular local market.”
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