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The Ninth Circuit U.S. Court of Appeals has gone to the dogs with a decision sorting out whether nonprofit breeder groups can sue each other over alleged Sherman and Lanham Act antitrust violations. A unanimous three-judge panel said that although the groups disagree over whether Jack Russell terriers should be evaluated as show dogs or working dogs, the groups are not competitors and therefore can’t accuse each other of unfair business practices. The Jack Russell terrier is named for Parson John Russell of England. A small but energetic dog bred for fox hunting, the Jack Russell is now a favorite among city dwellers. Besides being cute, Jack Russells are big business. But they’ve gotten the short end of the stick and couldn’t compete against other breeds because they weren’t legitimized as a distinct breed until recently. For years, the dogs were regulated only by the nonprofit Jack Russell Terrier Club of America. Recently, members of a local affiliate, the Jack Russell Terrier Network of Northern California, persuaded the American Kennel Club to register Jack Russells as a legitimate breed, which allows them to compete. But the national terrier club didn’t like that and shut out anyone who registered with the AKC, even going so far as to blacklist breeders in True Grit, a magazine devoted to the dogs. The national club believes that “an alternative all-breed kennel club standard and registry was not in the best interests of the dog. . . . [The group] believes that any kennel club standard would over time change the dog into a show breed, bred for form not function,” according to the opinion. The local club sued, alleging an unfair business boycott. The case was tossed by Northern District Judge James Ware, and the local club appealed. But the Ninth Circuit panel said the local club didn’t have a paw to stand on. It cannot accuse the national of conspiracy when everyone shares the same goals — the promotion of Jack Russells — even if they go about that differently. As for the false advertising claim — filed as a result of the blacklisting — the panel, Judges Dorothy Nelson, Andrew Kleinfeld and Ronald Gould, agreed with Ware that the litigants were barking up the wrong tree. The case is Jack Russell Terrier Network v. AKC, 05 C.D.O.S. 4127.

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