Wis. Stat. § 135.02
In this chapter:
Wis. Stat. § 135.02
A cartage agreement between an air freight company and a trucking company did not create a "dealership" under this chapter. Kania v. Airborne Freight Corp., 99 Wis. 2d 746, 300 N.W.2d 63 (1981). A manufacturer's representative was not a "dealership." Foerster, Inc. v. Atlas Metal Parts Co., 105 Wis. 2d 17, 313 N.W.2d 60 (1981). This chapter applies exclusively to dealerships that do business within the geographic confines of the state. Swan Sales Corp. v. Jos. Schlitz Brewing Co., 126 Wis. 2d 16, 374 N.W.2d 640 (Ct. App. 1985). Two guideposts for determining the existence of a "community of interest" under sub. (3) are: 1) a shared financial interest in the operation of the dealership or the marketing of a good or service; and 2) the degree of cooperation, coordination of activities, and sharing of common goals in the parties' relationship. Ziegler Co., Inc. v. Rexnord, Inc., 139 Wis. 2d 593, 407 N.W.2d 873 (1987). A substantial investment distinguishes a dealership from a typical vendee-vendor relationship; establishing a loss of future profits is not sufficient. Gunderjohn v. Loewen-America, Inc., 179 Wis. 2d 201, 507 N.W.2d 115 (Ct. App. 1993). Contracts between an HMO and chiropractors for the provision of chiropractic services to HMO members did not did not establish the chiropractors as dealerships under this chapter. Bakke Chiropractic Clinic v. Physicians Plus Insurance, 215 Wis. 2d 605, 573 N.W.2d 542 (Ct. App.1997), 97-1169. A dealership is a contract or agreement establishing a particular sort of commercial relationship that encompasses an extraordinary diverse set of business relationships not limited to the traditional franchise. The focus of the analysis must be on whether the business relationship can be said to be situated in the state after examining a broad set of factors outlined by the court. Baldewein Co. v. Tri-Clover, Inc., 2000 WI 20, 233 Wis. 2d 57, 606 N.W.2d 145, 99-0541. See also Baldewein Co. v. Tri-Clover, Inc., 183 F. Supp. 2d 1116 (2002). Assuming without deciding that the size of the local economy relative to the cost of the putative dealer's inventory of the grantor's products is a relevant factor in determining the existence of a community of interest, that factor did not demonstrate the existence of a community of interest in this case. Moe v. Benelli U.S.A. Corp., 2007 WI App 254, 306 Wis. 2d 812, 743 N.W.2d 691, 06-1512. Under sub. (2), a "dealer" is defined in this chapter to mean "a person who is a grantee of a dealership situated in this state." Sub. (3) defines "dealership" in part as "contract or agreement . . . between 2 or more persons, by which a person is granted the right to sell or distribute goods or services . . .. " Sub. (6) defines "person" as a natural person, partnership, joint venture, corporation or other entity and a city is a municipal corporation. Under s. 990.01(26), "person" includes all partnerships, associations, and bodies politic and corporate. The general term "corporation" presumptively should be read to include more specific types of corporations. Under the facts of this case, the relationships between the defendant city and the golf pro plaintiffs who operated its golf courses constituted "dealerships" under sub. (3). Benson v. City of Madison, 2017 WI 65, 376 Wis. 2d 35, 897 N.W.2d 16, 15-2366. A wine grantor-dealer relationship is not included within the definition of a dealership in sub. (3) (b). Section 135.066(2) provides the operative definition of intoxicating liquor for purposes of this chapter, and that definition explicitly excludes wine. Winebow, Inc. v. Capitol-Husting Co., Inc., 2018 WI 60, 381 Wis. 2d 732, 914 N.W.2d 631, 17-1595. When an otherwise protected party transfers a protected interest to a third party, a "community of interest" is destroyed and the party removed from WFDL protection. Lakefield Telephone Co. v. Northern Telecom, Inc., 970 F.2d 392 (1992). A community of interest exists when a large proportion of a dealer's revenues are derived from the dealership, or when the alleged dealer has made sizable investments specialized in the grantor's goods or services. Frieburg Farm Equip. v. Van Dale, Inc. 978 F.2d 395 (1992). There is no "community of interest" in the sale of services not yet in existence when the availability of the services is dependent on the happening of an uncertain condition. Simos v. Embassy Suites, Inc., 983 F.2d 1404 (1993). This chapter does not protect a manufacturer's representative that lacks the unqualified authorization to sell or the authority to commit the manufacturer to a sale. Sales & Marketing Assoc., Inc. v. Huffy Corp., 57 F.3d 602 (1995). If a grantor is losing substantial money under the dealership relationship, it may constitute "good cause" for changes in the contract, including termination. Morley-Murphy Co. v. Zenith Electronics, Inc., 142 F.3d 373 (1998). This chapter specifies who may take advantage of its protections through the terms "dealer" and "dealership" and obviates the need to resort to conflict of laws principles. Investment in the state without in-state sales does not bring a party within the coverage of the chapter. Generac Corp. v. Caterpillar, Inc., 172 F.3d 971 (1999). A manufacturer's right of approval of its distributors' subdistributors did not create a contractual relationship between the manufacturer and the subdistributor subject to this chapter. Praefke Auto Electric & Battery Co. v. Tecumseh Products Co., 255 F.3d 460 (2001). The WFDL expresses no concern for the mission or other motivation underlying the sales in question; it asks only whether sales occur. Nor does the statute draw any distinction between for-profit and not-for-profit entities. The stated concern is with fair business relations, and it is beyond dispute that nonprofit corporations can be substantial businesses. It matters not whether the purported dealer would be called a "dealer" in everyday conversation; what matters is only how the statute defines the term. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of America, Inc., 549 F.3d 1079 (2008). Affirmed in part, reversed in part. 646 F.3d 983 (2011). For an entity to qualify as a dealership through the use of commercial symbols, more is required than the mere right to use a commercial symbol. Instead, a dealership must either put those symbols to such use that the public associates the dealer with the trademark or prominently display the logo as an implicit guarantee of quality. Such use by a dealership ties its fortunes to the reputation of the grantor, giving the grantor superior bargaining power that the grantor might use to exploit the dealer. Sufficiently substantial use of a grantor's corporate symbol typically requires a purported dealer to make a substantial investment in the trademark. PMT Machinery Sales, Inc. v. Yama Seiki USA, Inc., 941 F.3d 325 (2019). The distinction between a dealer and a manufacturer's representative is discussed. Al Bishop Agency, Inc. v. Lithonia-Division of National Services, Inc., 474 F. Supp. 828 (1979). The employment relationship in question was not a "dealership." O'Leary v. Sterling Extruder Corp., 533 F. Supp. 1205 (1982). The plaintiff was not a "dealer" since money advanced to the company for fixtures and inventory was refundable. Moore v. Tandy Corp. Radio Shack Div., 631 F. Supp. 1037 (1986). It is improper to determine whether under sub. (3) a "community of interest" exists by examining the effect termination has on a division of the plaintiff. United States v. Davis, 756 F. Supp. 1162 (1990). The plaintiff's investment in "goodwill" was not sufficient to afford it protection under this chapter. Team Electronics v. Apple Computer, 773 F. Supp. 153 (1991). The "situated in this state" requirement under sub. (2) is satisfied as long as the dealership conducts business in Wisconsin. CSS-Wisconsin Office v. Houston Satellite Systems, 779 F. Supp. 979 (1991). There is no "community of interest" under sub. (3) when there is an utter absence of "shared goals" or "cooperative coordinated efforts" between the parties. Cajan of Wisconsin v. Winston Furniture Co., 817 F. Supp 778 (1993). Even if a person is granted a right to sell a product, the person is not a dealer unless that person actually sells the product. Smith v. Rainsoft, 848 F. Supp. 1413 (1994). Under sub. (3), de minimus use of a trade name or mark is insufficient: there must be substantial investment in it. Satellite Receivers v. Household Bank, 922 F. Supp. 174 (1996). A clause providing that the party who had drafted the contract and dictated all of its provisions was not a party to the contract was void, and that party was a grantor of a dealership. Praefke Auto Electric & Battery Co. v. Tecumseh Products, Co., 110 F. Supp. 2d 899 (2000). Nothing in the text or legislative history of this chapter suggests that the legislature intended to preclude co-ops from being dealers. Sub. (2) defines a dealer as "a person who is a grantee of a dealership." Sub. (6) defines a person as a "corporation or other entity." Under s. 185.02, a co-op is "an association incorporated" in the state. Thus a co-op is a corporation or other entity within sub. (6) and subject to this chapter. Builder's World, Inc. v. Marvin Lumber & Cedar, Inc., 482 F. Supp. 2d 1065 (2007). In determining whether a plaintiff has a right to sell under the WFDL, the most important factor is the dealer's ability to transfer the product itself, or title to the product, or commit the grantor to a transaction at the moment of the agreement to sell. A manufacturer's representative, defined as an independent contractor who solicits orders for a manufacturer's product from potential customers and is paid a commission on resulting sales, is a position consistently excluded from the WFDL. Northland Sales, Inc. v. Maax Corp., 556 F. Supp. 2d 928 (2008). See also PMT Machinery Sales, Inc. v. Yama Seiki USA, Inc., 941 F.3d 325 (2019). In search of a dealership definition: The teachings of Bush and Ziegler. Carter & Kendall. WBB Apr. 1988. The Wisconsin Fair Dealership Law's Territorial Imperative. Keeler. Wis. Law. Aug. 1999.