Full opinion text
OPINION AND ORDER LECHNER, District Judge. This matter is currently before the court on the application of John A. Fressie (“Fressie”) and Bascom Food Products (“Bascom Food”) (collectively the “plaintiffs”), for preliminary injunctive relief requiring certain affirmative action on the part of defendant Reese Finer Foods, Inc. (“Reese Foods”) and several individual defendants (collectively the “defendants”). For the reasons that follow, plaintiffs’ application for injunctive relief is granted. Facts In short, this case involves two plaintiffs who are being denied access to a supply of food products which they would like to distribute. Plaintiffs claim that defendants’ collective refusal to sell them various food products constitutes at least two per se violations of the antitrust laws. As per se violations, it is claimed that the purported reasonableness of the defendants’ selling restrictions should not even be considered by the court under the so called “rule of reason” analysis. Defendants, on the other hand, claim that because the selling restrictions do not constitute per se violations of the antitrust laws, the restrictions should be considered under the rule of reason. It is further claimed the restrictions should not be deemed anti-competitive because they promote “inter-brand competition.” Fressie is the president and sole shareholder of Bascom Food. In addition, Fres-sie is a shareholder of defendant Reese Foods. From 1971 until June 23, 1988, Fressie served as president, chief executive officer and director of Reese Foods. From 1971 until January 31, 1989, Bascom Food performed various general management functions for Reese Foods. According to the Complaint, Bascom Food did virtually everything for Reese Foods including sourcing, purchasing, product development, financing of Reese Foods’ working capital through lines of credit and pursuant to Fressie’s personal guarantees, order entry, billing, bookkeeping and all other administrative functions. In addition, Bascom Food performed other functions for Reese Foods such as warehousing and manufacturing. Complaint, ¶¶ 17, 18. As discussed below, Fressie’s and Bas-com Food’s positions at Reese Foods have been terminated. Certain of the individual defendants now control Reese Foods. These defendants have entered into a voting trust agreement, pursuant to which plaintiffs claim the defendants have garnered a controlling interest in Reese Foods for the purpose of enforcing anticompeti-tive restraints. Reese Foods (previously known as “V.I. P. Foods”) was incorporated in 1971 under the laws of Delaware. The founding members of Reese Foods, including Fressie, desired to create a buying and distribution cooperative composed of, and owned by, a group of specialty food distributors. Through the group’s collective buying power it was contemplated Reese Foods would be able to purchase specialty food products at favorable prices, which would enable the members to better compete in the marketplace. Mains Cert., ¶ 2. In many respects, Reese Foods appears to be more of conduit for, and of, the members of the purchasing cooperative than a stand alone entity. Reese Foods appears to have generated no actual profits for itself. Instead, it has sold specialty food products (mostly under its own private Reese Foods or Reese Foods-owned labels) to its shareholder/distributors at market discounts and with substantial cash rebates. Reese Foods has no plant and equipment, no hard assets, and no employees to speak of. According to the Complaint, Reese Foods is, in many respects, a “paper corporation” consisting essentially of a distribution network of competing individuals (or their companies) with the right to sell Reese Foods products. Complaint, 1114. Historically, Reese Foods has had retained earnings of approximately $30,000 to $50,000 annually. In addition to the market discounts on goods sold, Reese Foods has distributed over $7 million in cash rebates to its shareholder/distributors since 1972. Id. The original concept of Reese Foods was to give each distributor the exclusive right to sell Reese Food products in his own geographic territory. Fressie Aff., p. 4. It is alleged the Reese Foods shareholders and distributors operate separate and independent companies at the same horizontal level of the specialty foods market, selling specialty foods to individual retail distributors. Reese Foods currently sells private label brands of spices, seasonings, gourmet food items and other high-quality food products (“specialty food products”) to approximately thirty distributors throughout the United States. Twenty of the distributors are presently shareholders of Reese Foods. At one time all distributors were shareholder/members of Reese Foods; today certain distributors have been selected who are not shareholders. The majority of distributors, however, continue to be shareholder/members of Reese Foods. Reese Foods’ distributors are, generally speaking, independently operated and are under no contractual obligation to purchase any products from Reese Foods. As indicated below, however, the original shareholders have had an affirmative obligation to sell Reese Foods products. Over the years, the number of individual products in the Reese Foods specialty food product line has grown substantially. On August 20, 1971 (when Fressie and three other specialty food distributors, Norm Wine, Sr., Harry Mains, and Jack Heffner, each invested a few hundred dollars in exchange for one share of stock in V.I.P.) each shareholder agreed he would purchase two hundred cases of popcorn salt which Bascom Food would manufacture and sell to V.I.P. and which V.I.P., in turn, would sell to each of the three individual shareholder/distributors. Since that time, Reese Foods has grown into a diverse specialty foods distributor, with revenues in 1988 of approximately $43 million. Fressie has played a significant role in the growth of Reese Foods. He has allegedly created distinctive Reese Foods brand names and labels (including El Rio, Da Vinci, Ty Ling), as well as its art, advertising and packaging. He allegedly provided all of the financing for Reese Foods through lines of credit guaranteed by Bas-com Food and Fressie personally. Since 1971, with the popcorn salt and “cheezy-buttery” popcorn seasoning, Fressie developed new specialty food items and generated marketing interest among the shareholders. Reese Foods now has a product line of over five hundred items. Complaint, If 22. According to Fressie, “[i]n many other products such as smoked oysters, artichokes and capers, Reese is the dominant market factor.” Fressie Reply Aff., ¶ 13. As a general matter, it is alleged that trade in specialty food products is a significant element of interstate commerce. Complaint, 119. The defendants, on the other hand, maintain that Reese Foods has neither monopoly position nor dominant market share in any of its markets. It is asserted that Reese Foods is price-competitive. Da Vinci pasta, for example, allegedly competes with DiCecco and other pastas manufactured by Borden Co. which, according to trade reports, sells approximately eight hundred million pounds of pasta per year. Reese Foods sells seventeen million pounds of pasta per year. Defendants claim there are at least a dozen brands of pasta with which they compete. In addition, there are approximately thirty-five companies that belong to the National Pasta Association, a national association of pasta suppliers to the grocery market. Beers Aff., If 4. Reese Foods’ line of El Rio Mexican food products, according to the defendants, competes with many manufacturers including the Old El Paso brand, marketed by a division of Pet, Inc., and Oretega, La Pre-ferida and Tio Sanchez brands. Defendants similarly argue that Reese Foods’ Ty Line Oriental food line competes with Kik-koman, the China Bowl brand of Estee, as well as Ka-Me brand, a division of Shafer Clarke, Inc. Market share figures for these Mexican and Chinese food products were not supplied. Fressie claims that Reese Foods, with $43 million in annual sales, is the largest specialty food company in the United States. Defendants dispute this, arguing that The Specialty Food/Knorr Division of CPC International and The Specialty Food Division of Heinz International are believed to be larger. Defendants further argue that the size of Reese Foods is not particularly relevant in light of the intensive product competition in the retail grocery store business. According to defendants, “[although Reese Foods has products in one or two categories that are especially popular,” Reese Foods products generally are not the major brand in the particular product category. Beers Aff., ¶ 6. There has not been adequate evidence offered to determine, on a product-by-product basis, whether Reese Foods dominates —or is a significant factor — in any particular submarket for specialty food products. Attached as Appendix A to this opinion is a listing of revenues earned by Reese Foods in a number of product lines. While many of the revenue figures would not tend to suggest Reese Foods enjoys a dominant market position in various markets (although there appears to be at least some economic impact), it is not possible to assess the market position without determining the scope of the product market. Furthermore, it is not possible to determine whether the “product market” definitions (discussed infra) for many of the individual products are especially narrow because of uniqueness in the Reese Foods products. A limited amount of evidence, primarily in the form of affidavits, has been offered which suggests that at least certain Reese Foods products have narrow product market definitions. Clifford Koons, the vice president of purchasing for Grocers Specialty Company, stated that: “We try to substitute another specialty food lines, Fancifood from McLane Company. However, their product quality, packaging and product assortment is simply not comparable to Reese in our customers mind [sic]. We have lost business from customers who will not accept Fancifoods as a substitute for Reese.” Koons Cert., ¶14. Another food distributor has stated that: “There are no adequate substitutes available to me for some of the Reese product line, particularly Reese artichoke hearts and its cooking wines.” Michael Cert., 113. As to the DaVinci pasta, a third specialty food distributor stated: “The packaging of their Da Vinci pasta, for example, has been particularly good and that product has obtained a significant foothold in the specialty foods market.” Dick Cert., 115. Importantly, even certain of the defendants (Dorf, Kehe, Greenhouse and Wine) stated in affidavits in the state court action that: “As a distributor, I depend upon the timely and orderly supply of Reese products. Reese is my largest line of specialty food products.” Id. at ¶ 11. As indicated, Fressie was recently terminated from his management position at Reese Foods; the individual members of Reese Foods have elected defendant John Beers (“Beers”) to be CEO, apparently because Fressie was less responsive to the membership’s will. According to the Complaint, Fressie was removed from Reese Foods because he refused to enforce unlawful restraints of trade, to the dissatisfaction of the defendants and other shareholders. It is alleged, for example, that from 1971 until the time of his termination as Reese Foods’ president in 1988, Fressie received several complaints from Reese Foods shareholders and distributors of “unauthorized” sales of Reese Foods products by competing distributors in claimed territories. Fressie refused to prohibit these sales. Complaint, 1129. According to the defendants, Beers has unilaterally decided not to deal with Fressie as a distributor because he presented a variety of problems. In an effort to undercut plaintiffs’ argument that they were terminated for failure to enforce a particular distribution policy, defendants attempt to argue there never was an actual policy, but instead mere “brainstorming” about the possibility of enacting a policy. This suggestion, however, is belied by the fact that Reese Foods had been soliciting antitrust advice for a decade on the legality of the policy and also by a December 19, 1988 memorandum from Beers to the shareholders. That memorandum indicates that a formal policy is, and has been, in existence: The fact remains that Reese, under the anti-trust laws, has a legal right to put into place reasonable policies designed to promote the orderly marketing and distribution of its products. The original policy of Reese was to forbid the diversion of merchandise to non Reese distributors. Unfortunately, prior management never enforced the policy, however, the policy is still in effect and we’re going to start enforcing it. Fressie, now removed from the management of Reese Foods, seeks to be a regular full line distributor of Reese Foods products and to compete in regions already covered by Reese Foods distributors. It is the refusal of Reese Foods (and the individual defendants) to deal with Fressie which gives rise to this lawsuit. Fressie claims the refusal of the defendants to deal with him stems from a fear of competition from a distributor who intends to sell Reese Foods products to centralized retail warehouses, other distributors, and wholesale grocers at a lower price, rather than on the established “store to door” basis, as described below. Fressie claims the defendants, in refusing to deal with him, are eliminating the competition he could bring to existing territories by selling Reese Food products through different channels. Defendants are allegedly enforcing a “store to door” sales policy which prohibits a distributor from selling directly to centralized warehouses of wholesale grocers or to the warehouses of large supermarket chains, except within the distributor’s established territory. This excludes potential distributors like Bascom Food and Fressie, which for historical reasons do not have an agreed-upon territory, from competing in the specialty foods market. Fressie Aff., 111119-21. According to the defendants, Reese Foods depends on the success of its distributors and their promotion and marketing of Reese Foods products. To ensure distributors market Reese Foods products vigorously in their respective areas of distribution, each distributor is expected to concentrate its marketing efforts in a particular geographic area. To encourage such effort, the individual Reese Foods distributors are typically granted exclusive distributorships in their areas. Defendants claim that to prevent potential free-rider problems and to ensure distributors achieve economies of scale and other efficiencies in their respective markets, Reese has actively discouraged transhipping to other distributors. These are objectives (sought to be achieved through nonprice restraints) which defendants consider justifiable in the context of vertical distribution arrangements. According to plaintiffs, however, the history of Reese Foods is replete with horizontal attempts by distributors and shareholders to prevent other distributors from selling Reese Food products in their claimed geographic territories. The defendants’ restrictive shareholders’ agreement allegedly limits the methods by which Reese Foods members may distribute specialty food products. Defendants are thus allegedly able to charge more for Reese Foods products than they could if they distributed to the central warehouses of the same retail outlets. Fressie asserts that while the Bascom Food management contract with Reese Foods was in place, he “voluntarily refrained from exercising [his] equal rights as a Reese shareholder to distribute Reese products to the retail trade for [his] own account and looked instead to the management contract as [his] primary source of income from the Bascom-Reese relationship.” Fressie Reply Cert., 111. With the termination of the management contract, however, he now seeks to exercise a right which he claims always existed under the shareholders agreement — the right of all Reese Foods shareholders to buy Reese Foods products and to sell them as active distributors. Id. Defendants argue that, contrary to plaintiffs’ assertions, shareholder status carries with it no vested right to purchase and resell Reese Foods products. They note that shareholders have been denied the opportunity to purchase Reese Foods products in the past. It is further explained by defendants that, although Reese Foods was formed by distributors who received stock in return for their contributions of capital, “the informal connection between stock ownership and distributorship rights has broken down over the years.” Beers Aff. 117. Since the 1980 decision not to require newly appointed distributors to become Reese Foods shareholders, new distributors of Reese Foods products have not been purchasers of Reese Foods stock. Id. Defendants argue that ownership of stock cannot imply a right to sell Reese Foods products, otherwise a distributor owning Reese Foods stock would be immune from being terminated. Id. This argument, however, ignores the fact that the shareholder’s agreement provides an affirmative obligation on the part of every shareholder to sell Reese Foods products. The unjustified refusal to sell Reese Foods products is a specific basis for Reese Foods to repurchase a member’s stock. Fressie Reply Aff., 114. Moreover, Beers testified at a deposition that Reese Foods stock is “really more of a membership card to the Reese buying co-op as opposed to representing a stock that someone would buy for an investment.” Beers Deposition at 69, 1. 15-19. Plaintiffs argue that Reese Foods has never refused to sell products to a shareholder other than pursuant to a justification contained in the shareholders’ agreement. It has never merely taken the position that shareholders have no right to distribute. Fressie Reply, 117. From the evidence which has been submitted, it appears stock ownership in the Reese Foods cooperative carried with it an expectation that the stockholder would be a Reese Foods distributor, absent a violation of the shareholders’ agreement or some unique reason such as stockholder management duties to the cooperative. There appears to be no other reason why an entity or person would hold stock in the cooperative. Discussion Preliminary injunctive relief will not issue unless the applicant can establish: “(1) a reasonable probability of eventual success in the litigation and (2) that the mov-ant will be irreparably injured pendente lite if relief is not granted.” In re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir.1982). The defendants have argued that, where the plaintiff is seeking a mandatory injunction, as opposed to a prohibitory injunction, the burden is greater because mandatory injunctions are generally disfavored. (Citing Punnett v. Carter, 621 F.2d 578 (3d Cir.1980)). In Oburn v. Shapp, 521 F.2d 142 (3d Cir.1975), the Third Circuit clarified the meaning of “reasonable probability of success:” “[it] is not necessary that the moving party’s right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits.” Id. at 148. See also Delaware Valley Transplant Program v. Coye, 678 F.Supp. 479, 481-82 (D.N.J.1988) (discussion of plaintiff’s probability of success with regard to the Commerce Clause of the United States Constitution, Art. 1, Sect. 8, cl. 3, and the threshold inquiry concerning the Commerce Clause claim); Zeller Plastik, Koehn Grabner v. Joyce Molding, 698 F.Supp. 1204, 1226-27 (D.N.J.1988) (patent case where plaintiff demonstrated likelihood of success on the merits in proving by a preponderance of the evidence that defendant infringed the patent). In this case, for the reasons set forth below, plaintiffs have (at this stage) made their prima facie case. In considering the irreparable nature of the injury which may result from denial of preliminary relief, consideration can be given to whether the plaintiff will get an early trial on the merits. See N.W. Controls, Inc. v. Outboard Marine Corporation, 317 F.Supp. 698 (D.Del.1970). In this case, although the parties have been engaging in discovery in a related state court action, there is some discovery yet to be conducted and preparation to be completed prior to going to trial in this matter. It is currently anticipated this matter will go to trial in October, 1989. In the Complaint plaintiffs allege various violations of section one the Sherman Act, 15 U.S.C. § 1. Although section one of the Sherman Act literally bars any combination of persons or entities “in restraint of trade,” Arizona v. Maricopa County Medical Soc’y, 457 U.S. 332, 344, 102 S.Ct. 2466, 2473, 73 L.Ed.2d 48 (1982); United States v. Topco Associates, Inc., 405 U.S. 596, 606, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972), courts have interpreted the word “every” liberally and construed section one as precluding only those contracts or combinations which “unreasonably restrain competition.” Northern Pacific Railway v. United States, 356 U.S. 1, 3-5, 78 S.Ct. 514, 517-18, 2 L.Ed.2d 545 (1958); United States v. Joint Traffic Ass’n, 171 U.S. 505, 19 S.Ct. 25, 43 L.Ed. 259 (1898). Accordingly, since Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911), the Supreme Court has analyzed most restraints under the so-called “rule of reason,” which requires a determination as to whether, under all the circumstances of the case, the restrictive practice imposes an unreasonable restraint on competition. See Maricopa County Medical Soc’y, 457 U.S. at 343, 102 S.Ct. at 2472. On the issue of plaintiffs’ likelihood of success on the merits, three primary issues are presented. First, a threshold issue exists concerning the existence of standing on the part of plaintiffs to bring this lawsuit. Second, an issue exists concerning the structure of Reese Foods and its relationship with the other defendants as well as with Fressie. Plaintiffs have relied on the fact that the relationship among the parties is horizontal in nature. The third issue is whether any of the types of practices conducted by the defendants should be considered an unreasonable restraint of trade under the per se rules of antitrust. The Supreme Court in Northern Pacific, supra, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958), explained the appropriateness of, and the need for, per se rules: “[T]here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken.” Id. at 5, 78 S.Ct. at 518. A “rule of reason” analysis is employed when the restraint in question is not so obviously anticompetitive as to be deemed per se unreasonable. This approach includes consideration of the facts peculiar to the business in which the restraint is applied, the purpose of the restraint and its effects, and the history of the restraint and the reason for its adoption. Chicago Board of Trade v. U.S., 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918). Apart from the antitrust merits in this matter, an issue also exists concerning the irreparability of the harm plaintiffs will suffer if an injunction is not issued. I. Standing Defendants argue that, even if plaintiffs can prove the elements of their claims and prove irreparable injury, the application for injunctive relief must be denied because plaintiffs lack standing to bring their present antitrust claims. Defendants’ Brief, p. 13. This argument is rejected. Generally speaking, a private plaintiff seeking injunctive relief must show a threat of “injury of the type the antitrust laws were intended to prevent and that flows from that which makes the [practice] ... unlawful.” Cargill v. Monfort of Colorado, Inc., 479 U.S. 104, 109, 107 S.Ct. 484, 489, 93 L.Ed.2d 427 (1986); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). In this case, plaintiffs assert they have suffered the loss of business opportunities flowing from conduct of the defendants aimed at eliminating competition. Defendants have argued broadly that plaintiffs must be the proper party to seek relief. Cargill, 479 U.S. at 110, n. 5, 107 S.Ct. at 489 n. 5 (citing Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983)). The antitrust laws are designed to protect competition, not a particular competitor. Brunswick, 429 U.S. at 488, 97 S.Ct. at 697; Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962). Defendants cite several cases for the proposition that, where a plaintiff fails to show a proscribed effect upon competition, courts consistently deny standing to assert a claim under the antitrust laws. The Third Circuit addressed the issue of antitrust standing in Gregory Marketing Corp. v. Wakefern Food Corp., 787 F.2d 92 (3d Cir.), cert. denied, 479 U.S. 821, 107 S.Ct. 87, 93 L.Ed.2d 40 (1986). Standing was found not to exist in that case because the plaintiff was “neither a consumer nor a competitor in the ... market, and thus not within the area of the economy endangered by the breakdown of competitive conditions.” Id. at 95. Under the foregoing authority, plaintiffs appear to have standing to assert the antitrust claims in this case. Plaintiffs are claiming injury from the anticompetitive effect — the exclusion of plaintiffs as competitors to defendants in the sale of Reese Foods products — that the antitrust laws are intended to prevent. Plaintiffs, moreover, have cited several cases finding that standing exists when antitrust plaintiffs are directly injured by the anticompetitive behavior of their competitors. See, e.g., Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985); Klors v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); USA Petroleum Co. v. Atlantic Richfield Co., 859 F.2d 687 (9th Cir.1988); Pa. Dental Ass’n v. Medical Service Ass’n of Pa., 815 F.2d 270 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 153, 98 L.Ed.2d 109 (1987); Englert v. City of McKeesport, 640 F.Supp. 1329 (W.D.Pa.1986). II. The Relevant Market Before considering the merits of certain of plaintiffs’ antitrust claims, the relevant product and geographic markets by which to judge the alleged violations of the Sherman Act must be determined. Brown Shoe Co., Inc. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962); United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391-93, 76 S.Ct. 994, 1005-06, 100 L.Ed. 1264 (1956); Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 145 (3d Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1715, 72 L.Ed.2d 137 (1982); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 268 (2d Cir.1979); Hudson’s Bay Co. v. American Legend Cooperative, 651 F.Supp. 819, 834 (D.N.J.1986). In this regard “[t]he search for ‘the relevant market[s]’ must be undertaken and pursued with relentless clarity.” United States v. Grinnell Corp., 384 U.S. 563, 587, 86 S.Ct. 1698, 1712, 16 L.Ed.2d 778 (1966) (Fortas, Jr. dissenting). The burden to establish the relevant markets is ordinarily on the plaintiffs. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177-78, 86 S.Ct. 347, 350-51, 15 L.Ed.2d 247 (1965); Neumann v. Reinforced Earth Co., 786 F.2d 424, 429 (D.C.Cir.), cert. denied, 479 U.S. 851, 107 S.Ct. 181, 93 L.Ed.2d 116 (1986); American Bearing Co., Inc. v. Litton Industries, Inc., 729 F.2d 943, 949 (3d Cir.), cert. denied, 469 U.S. 854, 105 S.Ct. 178, 83 L.Ed.2d 112 (1984). A product market will be broader where there are viable substitutes for the product in question and will be narrower where the product is unique or cannot be substituted. The broader the product market (and the greater the number of competitors) the less defendants are apt to have a dominant market position in it. Accordingly, the defendants in antitrust suits invariably argue that the products in question are not unique and have many substitutes. The importance of evaluating both reasonable interchangeability of use and “cross-elasticity of demand” of various specialty food products produced in the United States and elsewhere, in the delineation of the relevant product market, has been established. Brown Shoe Company, 370 U.S. at 325, 82 S.Ct. at 1523-24. In this context, “... ‘reasonable interchangeability of use or the cross-elasticity of demand,’ determines the boundaries of a product market.” Grinnell Corp., 384 U.S. at 592-93, 86 S.Ct. at 1715 (Fortas, J., dissenting). In determining the cross-elasticity of demand and interchangeability of use among various food products, the responsiveness of the sales of one product to price changes or supply of another must be weighed. See, Smithkline Corp. v. Eli Lilly & Co., 427 F.Supp. 1089, 1115 (E.D.Pa.1976). The availability of supply (of interchangeable goods) from various suppliers is a restraint on any producer of an item from increasing prices above the competitive level. Accordingly, as mentioned, the definition of a relevant market is based upon a determination of available substitutes. To define a market in product and geographic terms is to say that if prices were appreciably raised or volume appreciably curtailed for the product within a given area, while demand held constant, supply from other sources could not be expected to enter promptly enough and in large enough amounts to restore the old price or volume. L. Sullivan, Handbook of the Law of Antitrust, § 12 at 41 (1977); see also E.I. du Pont de Nemours & Co., 351 U.S. at 395, 76 S.Ct. at 1007. To measure the cross-elasticity of demand is to determine whether a similar product will be substituted for the product in question. Likewise, cross-elasticity of supply is based upon the capability of other production facilities to produce a substitute product. The likelihood that similar products or production facilities are to be included in a relevant market increases in direct proportion to the increase of cross-elasticity or interchangeability of use of these products or facilities. In Brown Shoe, the Supreme Court spoke of the concept of submarkets within a relevant market. The Court identified “practical indicia” for delineation of sub-markets. Such indicia include “industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes and specialized vendors.” Brown Shoe, 370 U.S. at 325, 82 S.Ct. at 1524. In this case, little evidence was offered to establish the relevant markets. On the issue of geographic markets, products of Reese Foods appear to be distributed primarily, if not exclusively, in the United States. While there has been no mention of distributors located overseas, however, Fressie did indicate that as part of his effort to promote the Reese Foods line he attended certain international food shows. On the issue of relevant market, it is not possible to make any hard and fast conclusions on the limited record in this case, which involves in excess of 500 individual products. If the outcome of this case depended upon the application of group boycott precedents (which, as discussed, requires certain market power or uniqueness with respect to a product before per se rules apply), it would have probably been necessary to conduct an evidentiary hearing into the characteristics of various Reese Foods products. A more detailed record would have to be developed if plaintiffs depended upon the boycott authorities. As to certain products (i.e., artichokes, cooking wines, capers and pasta), however, there has been significant evidence offered which tends to suggest the relevant product market is narrow because Reese Foods has unique packaging, customer loyalty and other characteristics. As indicated, several specialty food distributors, including some of the defendants, have stated in affidavits they need access to Reese Foods products because customers will accept no substitutes. Fressie analogized the difficulty of obtaining limited shelf space (at a grocery store) for alternative pastas (and other products) to the difficulty one would have in convincing a retailer to carry Fres-sie’s coffee rather than Maxwell House coffee. He stated that, because of customer loyalty and recognition, the retailer would not accept Fressie’s coffee at any price. Fressie Reply Cert., 115. Based on the affidavits supplied by several apparently disinterested specialty food distributors, which were largely uncontradicted, it appears that Reese Foods is a market force in at least certain products. III. Horizontal Restraints on Trade Plaintiffs argue the defendants have illegally agreed to restrict competition in the sale of Reese Foods products. As discussed, no Reese Foods distributor is permitted to sell to either wholesalers or to retail chain warehouses outside of the assigned territory. Fressie Aff. 1121; Bennett Certification H 44. Plaintiffs argue the defendants’ practices, allegedly horizontal in nature, are illegal per se. On the threshold issue of whether the structure in this case is horizontal or vertical, plaintiffs argue the individual defendants, who are all involved in the distribution of food products at the same level, are also the present directors of Reese Foods. They control a voting trust of a majority of Reese Foods shares. Plaintiffs contend defendants, through Beers, their appointed chief executive officer, have control over every aspect of Reese Foods’ business. In short, plaintiffs assert Reese Foods is simply an “instrumentality” of the defendants. Plaintiffs’ Br., p. 21. Defendants, on the other hand, argue the structure and restrictions in this case are vertical in nature. It is noted Reese Foods does not itself compete as a distributor of any specialty food products. Rather, it is argued, Reese Foods is a supplier of specialty food products to a variety of distributors, many of which happen to be the shareholders and founders of Reese Foods. It is asserted day-to-day operations and management decisions of Reese Foods are made by Beers, its chief executive, who is neither a Reese Foods shareholder nor a competitor of the individual distributors. Finally, defendants argue that, in his seventeen years of active participation in Reese Foods, Fressie has never functioned as a Reese Foods distributor to retail outlets. Arguing this case does not involve termination of “an existing dealership,” defendants emphasize plaintiffs have never distributed Reese Foods products for their own account. Asserting the restrictive practices alleged by the plaintiffs are non-price distribution restraints, defendants argue the Supreme Court has made clear that all non-price vertical distribution restrictions are analyzed according to the rule of reason, rather than the per se rules of illegality (citing GTE Sylvania, supra, 433 U.S. at 59, 97 S.Ct. at 2562). For the following reasons, however, this case appears to involve restraints which are horizontal in nature. This issue of horizontal restraints has been previously addressed by the Supreme Court. In United States v. Sealy, 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967), manufacturers of mattresses were licensed by Sealy to produce and sell products using the Sealy trademark. Sealy was owned almost entirely by its licensees who elected the board of directors and in fact controlled the business. Sealy agreed with its licensees not to license other manufacturers or sellers to sell Sealy-brand products in allocated territories in exchange for the promise of each licensee who sold in that territory not to expand beyond the area designated by Sealy. This was held to be a horizontal restraint, a per se violation of the Sherman Act. On the issue of whether the arrangement was horizontal or vertical, the court explained: The territorial arrangements must be regarded as the creature of horizontal action by the licensees. It would violate reality to treat them as equivalent to territorial limitations imposed by a manufacturer upon independent dealers as incident to the sale of a trademarked product. Sealy, Inc. is an instrumentality of the licensees for purposes of the horizontal territorial allocation. It is not the principal. 388 U.S. at 354 (emphasis added). The Court emphasized “Sealy was a joint venture of, by and for its stockholder-licensees ... and [they] are themselves directly, without even the semblance of insulation, in charge of Sealy’s operations.” Id.; see also United States v. Topco Associates, 405 U.S. 596, 608, 92 S.Ct. 1126, 1134, 31 L.Ed.2d 515 (1972). Plaintiffs argue Reese Foods, like Sealy, Inc., is simply an instrumentality of its shareholders. The shareholders, through the individual defendants’ exercise of the power of the voting trust, have elected a new board of directors who are themselves competing Reese Foods distributors. In light of Sealy, the defendants’ formalistic argument that Reese Foods (a mere “instrumentality” of the defendants) itself does not compete with the individual distributors is rejected. A more interesting question perhaps arises in light of the fact that Reese Foods has departed from its policy of only granting distributorships to the shareholders. It used to be the case that only shareholders were distributors, and all of them were. Currently, there are about ten distributors who do not own stock in Reese Foods. On the other hand, it appears that, with limited exceptions such as Fressie, all of the shareholders continue to be full line distributors of Reese Foods products. Indeed, as indicated above, the intention to distribute Reese Foods products is the only apparent reason to invest in Reese Foods. The reason why the Supreme Court in Sealy concluded the arrangement was horizontal was because the Sealy licensees owned substantially all of Sealy’s stock. The point is that where the stock (or at least a significant portion of it) is not owned by independent third parties, it seems illogical to conclude that there exists a true vertical distribution arrangement, with arms-length sales of goods being made down the line of distribution. As in Sealy, virtually all of the stock of Reese Foods is owned by the Reese Foods distributors. The fact which defendants appear to emphasize (although without any reasoned discussion of the rationale in Sealy) is that there now exists a substantial number of distributors who do not own stock in Reese Foods. This fact, however, does not suffice to convert the arrangement in this case to a vertical one. As to the distributors who do not own any stock in Reese Foods, the arrangement may well be characterized as vertical because these distributors are truly being supplied Reese Foods products by an independent third-party entity, over which they have no control. These entities, however, are not named as defendants in this lawsuit. As to the shareholder defendants who are also distributors, the arrangement appears de-cidely horizontal. These defendants, through their completely controlled instrumentality Reese Foods, appear to have eliminated competition at one level. Because it appears the arrangement among the parties in this case is horizontal, the next inquiry is whether the restraint involved here should be treated under the per se rule or under the rule of reason. It is argued by plaintiffs that the facts of this case are essentially identical to the facts in Topco, supra. The Topeo Court held horizontal anticompetitive conduct (involving the division of customer territories), like that engaged in by defendants, to be per se unlawful under section one of the Sherman Act. Topco Assoc., Inc. (“Topeo Associates”) was a cooperative association of approximately twenty-five small and medium sized regional supermarkets. Topeo Associates, like Reese Foods, was owned and operated by its members. The member firms, apart from their affiliation with Topeo Associates, were wholly independent, separate supermarket chains, each operating under independent management. The basic function of Topeo Associates was to serve as a purchasing agent for its members. Topeo Associates procured and distributed high quality merchandise under private labels which it sold to its members. Topeo Associates did not itself own any manufacturing, processing or warehousing facilities. The board of directors, which controlled the operation of the association, was drawn from the members and elected the association’s officers, including its CEO. 405 U.S. at 598-99. In an action brought by the United States for injunctive relief against alleged violation by Topeo Associates of section one of the Sherman Act, the Government alleged that there existed: a continuing agreement, understanding and concert of action among the co-conspirator member firms acting through Topeo, the substantial terms of which have been and are that each co-conspirator or member firm will sell Topco-con-trolled brands only within the marketing territory allocated to it, and will refrain from selling Topco-eontrolled brands outside such marketing territory. 405 U.S. at 601, 92 S.Ct. at 1130. The Supreme Court stated: One of the classic examples of a per se violation of § 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a “horizontal” restraint, in contradistinction to combinations of persons at different levels of the market structure, e.g., manufacturers and distributors, which are termed “vertical” restraints. This Court reiterated time and time again that “[hjorizontal territorial limitations ... are naked restraints of trade with no purpose except stifling of competition.” White Motor Co. v. United States, 372 U.S. 253, 263 9 L.Ed.2d 738, 746, 83 S.Ct. 696 [702] (1963). Such limitations are per se violations of the Sherman Act. 405 U.S. at 608, 92 S.Ct. at 1133-34 (other citations omitted). The Supreme Court held: We think that it is clear that the restraint in this case is a horizontal one, and, therefore, a per se violation of § 1. Id. The Court rejected the defendants’ attempts to justify the restrictions, holding that they were illegal per se, and that purported benefits to competition would not be considered. Apparently because it would be unavailing to try to distinguish Topeo on the facts, the defendants have argued that it is essentially outdated precedent. Defendants argue that the rule of reason is the prevailing standard of analysis today and cite GTE Sylvania, supra, 433 U.S. at 49, 97 S.Ct. at 2557 (approving non-price vertical restraints under the rule of reason where restrictions on intrabrand competition were beneficially offset by promotion of inter-brand competition). Defendants have also cited cases involving horizontal arrangements which were treated under the rule of reason analysis. In National Collegiate Athletic Assoc. v. Board of Regents of Univ. of Oklahoma, 468 U.S. 85, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984) member associations, by their participation in an association which prevented them from competing against each other on the basis of price or kind of television rights which could be offered to broadcasters, created a horizontal restraint — an agreement among competitors on the way in which they would compete with one another. The per se rule was held inapplicable because more in-depth analysis was required to determine whether restraints on the number of NCAA football games were essential for the joint product (televised college football games) to be offered at all. See also BMI v. Columbia Broadcasting System, Inc., 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979) (blanket licensing fees not per se unlawful pricefix-ing because of the efficiency benefits the cooperative venture offered). These cases, which did involve horizontal restrictions among competitors, depended on the fact that a new product was being offered pursuant to a restrictive arrangement, or that a product would probably not exist in the same form without the horizontal arrangement. No such new product flows from the arrangement between Reese Foods and the individual defendants. Defendants have argued that Reese Foods, through its distributor network, provides consumers with an alternative high-quality specialty food line which has many substitutes. Defendants’ Br., p. 6. It has not been demonstrated that various Reese Foods products would not be sold other than pursuant to the distribution restrictions. While there does appear to be a trend toward treating certain horizontal arrangements under the rule of reason analysis, this case appears to be directly controlled by Topeo. The horizontal cases cited by defendants in favor of a rule of reason approach — BMI and NCAA — cite Topeo approvingly. The Supreme Court has never indicated an intent to overrule Topeo. While one court has apparently questioned the continued viability of Topeo, the Supreme Court has recently provided an indication that Topeo continues to be good law. Last term, the Court restated the well-established principle that: [A] horizontal agreement to divide territories is per se illegal. Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988) and cited Topeo as authority. To the extent the Supreme Court has ever intended to modify the breadth or application of Topeo, a somewhat less encompassing restatement of the Topeo principle would be expected. See also United States v. Cooperative Theatres of Ohio, 845 F.2d 1367 (6th Cir.1988). Defendants’ attempt to lightly disregard Supreme Court authorities on point is rejected. Neither Sealy nor Topeo have been held to be no longer applicable in this Circuit. Defendants’ agreement to divide territories and to restrict competition with the assigned territories appears to be illegal per se. Plaintiffs have also alleged defendants’ practices constitute an illegal group boycott which should be treated as a per se violation of section one of the Sherman Act. The boycott is allegedly the means by which the defendants, who are food distributors at the same horizontal level of the specialty foods market, have enforced the allocation of territorial markets among themselves and have made unlawful agreements on terms and conditions for distributing Reese Foods specialty food products. Plaintiffs assert defendants are engaged in a classic group boycott of plaintiffs by enforcing these restraints and preventing plaintiffs from competing with defendants in the sale of Reese Foods products. Plaintiffs’ Br., p. 1. Group boycotts have historically been held to be among those categories of conduct deemed unreasonable per se because they are so likely to restrict competition without any offsetting efficiency gains. See United States v. General Motors Corp., 384 U.S. 127, 145, 86 S.Ct. 1321, 1330, 16 L.Ed.2d 415 (1966). In Klors v. Broadway—Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) the Supreme court applied the per se rule, explaining that: Group boycotts, or concerted refusals by traders to deal with other traders, have long been held to be in the forbidden cate.-gory. They have not been saved by allegations that they were reasonable in the specific circumstances, nor by a failure to show that they “fixed or regulated prices, parcelled out or limited production, or brought about a deterioration in quality.” Id. at 212, 79 S.Ct. at 709; see also DeFilippo v. Ford Motor Co., 516 F.2d 1313 (3d Cir.), cert. denied, 423 U.S. 912, 96 S.Ct. 216, 46 L.Ed.2d 141 (1975) (defining a per se illegal group boycott as one in which there is a “purpose either to exclude a person or group from the market, or to accomplish some other anticompetitive objective, or both.” (quoting Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 76 (9th Cir.1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970)). Id. at 1318. Defendants argue the rule of reason approach has been endorsed in recent cases involving certain concerted refusals to deal. See, e.g., Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985). Noting that certain efficiencies might be obtained by forming a purchasing cooperative (from which the plaintiff was excluded), the Supreme Court explained that: Wholesale purchasing cooperatives such as Northwest are not a form of concerted activity characteristically likely to result in predominantly anticompetitive effects. Rather, such cooperative arrangements would seem to be designed to increase economic efficiency and render markets more, rather than less, competitive. The arrangement permits the participating retailers to achieve economies of scale in both the purchase and warehousing of wholesale supplies, and also ensures ready access to a stock of goods that might otherwise be unavailable on short notice.... [This allows members] to compete more effectively with large retailers. 472 U.S. at 295, 105 S.Ct. at 2620 (citations omitted). The Court did conclude, however, that per se treatment may be appropriate under certain circumstances, i.e., if the plaintiff establishes that the cooperative possessed market power or that access to the cooperative is essential for effective competition because a unique product is involved. Id. at 296-97, 105 S.Ct. at 2620-21. In this case Fressie has made a substantial showing (which, of course, is subject to further rebuttal at trial) that certain, if not all, Reese Foods products are unique and that he will be unable to effectively compete in the specialty food business, in several different product lines, without access to products distributed by Reese Foods. Defendants merely assert, without compelling support, that there are numerous substitutes for Reese Foods products, Beers Aff., ¶¶ 4, 6, and the wide array of competing substitutes demonstrates that the distributorship opportunities for plaintiffs are innumerable. Defendants’ Br., p. 6. Fressie, on the other hand, corroborates in detail his assertion that Reese Foods products are unique and necessary if he and Bascom Food are to compete effectively in the sale of specialty food products. It is asserted Reese Foods is a dominant line of uniquely branded specialty food items that is virtually impossible to replace. This alleged fact is attested to by not only Fres-sie, but also by non-party retailers and specialty food distributors who have filed certifications in this case. Among the non-party businessmen in the specialty food industry who have submitted certifications in this matter, Joseph Michael of F & G Food Distributors has stated: “Reese products have done very well in our market. Their quality makes them attractive, particularly to our upper income consumers. There are no adequate substitutes available to me for some of the Reese product line, particularly Reese artichoke hearts and its cooking wines.” Michael Cert., ¶ 3 (emphasis added). Similarly, Leo A. Dick, President of Leo A. Dick & Sons, has stated: “[TJhere are some Reese products which are virtually impossible to substitute such as Honey Cins, devilled olives, and sassafras tea bags.” Dick Cert., ¶ 2 (emphasis added). Mr. Koons another specialty foods businessman, tried to substitute other specialty food products for those of Reese Foods, but found that these are not comparable and that many of his customers would not accept such products as a substitute for those sold by Reese. Koons Cert., II4. As one of his primary examples of why plaintiffs cannot duplicate the Reese Foods’ private label products (because in many instances they dominate the specialty food industry with a brand recognition, breadth of coverage and consumer loyalty), Fressie emphasises that DaVinci pasta is both unique and the most popular brand of imported Italian pasta in this country. The DaVinci brand name has supermarket authorizations, established customer loyalty and is sold exclusively through Reese Foods distributors. Each order allegedly takes approximately three months to fill. Because DaVinci pasta has brand name recognition and customer loyalty, it cannot be replaced by another brand. Fressie Reply Cert., ¶¶ 2-5. As far as artichoke hearts are concerned, Fressie states: I cannot market a “Bascom” Brand of artichoke hearts and compete with the defendants and the other Reese shareholders/distributors in the sale of Reese artichoke hearts. Supermarkets have a finite amount of shelf space. Warehouses, stockrooms and inventory management systems are set up to handle a finite number of products. Reese products have substantial good will in the form of brand loyalty, supermarket authorizations and warehouse and inventory clearances which would take anyone starting up a new private label line of products literally years and millions of dollars to achieve. Id., ¶ 3. In addition, Fressie claims: it would take me literally years of marketing effort to get my “Fressie” coffee on the supermarket shelves next to the “Maxwell House” coffee regardless of what price I would be willing to charge. Id., 115. Fressie also claims, as a related concept, that in many other products such as smoked oysters and capers, Reese Foods is the “dominant market factor.” Having spent his entire career in this line of products, plaintiffs assert Fressie is known throughout the industry as “Mr. Reese.” Koons Cert., 11 6. It is claimed that if plaintiffs are denied access to these products, defendants will succeed in placing plaintiffs, as competitors, at a severe competitive disadvantage. In light of the substantial allegations concerning the uniqueness of various Reese Foods products and the related market power held by the defendants in these product lines, this case appears to be covered by the exception articulated by the Supreme court (as per se unlawful refusals to deal) in Northwest Wholesale Stationers, Inc. Even if, with respect to certain product lines, Reese Foods does not offer a truly unique product, plaintiffs note that the resource denied in an alleged group boycott does not have to be “indispensable” —only competitively significant. See Associated Press v. United States, 326 U.S. 1, 17-18, 65 S.Ct. 1416, 1423-24, 89 L.Ed. 2013 (1945). While it is not critical to resolve whether this case involves a group boycott which should be considered under per se analysis (because it appears the facts in this case indicate an illegal division of market share by horizontal competitors, under Topeo), it is noted that this case appears to constitute the type of boycott to be treated under per se analysis. If this case were to be treated under a rule of reason analysis, it would be necessary to consider the nature of the restraint (non-price, territorial restrictions) and the purported pro-competitive justification for it. The Supreme Court has previously considered the justifications for distributions restrictions in specified territories. In GTE Sylvania, supra, the Supreme Court refused to extend per se illegality to verticle nonprice restraints. That case involved a manufacturer’s termination of one dealer pursuant to an exclusive territory agreement with another. The Court further concluded that vertical nonprice restraints had not been shown to have such a “ ‘pernicious effect on competition’ ” and to be so “ ‘lackpng] [in] ... redeeming value’ ” as to justify per se illegality. Id., 433 U.S. at 58, 97 S.Ct. at 2561, quoting Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). The Court found that the territorial restrictions had real potential to stimulate inter brand competition, “the primary concern of antitrust law”, 433 U.S. at 52, n. 19, 97 S.Ct. at 2558, n. 19. It explained: “[N]ew manufacturers and manufacturers entering new markets can use the restrictions in order to induce competent and aggressive retailers to make the kind of investment of capital and labor that is often required in the distribution of products unknown to the consumer. Established manufacturers can use them to induce retailers to engage in promotional activities or to provide service and repair facilities necessary to the efficient marketing of their products. Service and repair are vital for many products.... The availability and quality of such services affect a manufacturer’s goodwill and the competitiveness of his product. Because the market imperfections such as the so-called ‘free-rider’ effect, these services might not be provided by retailers in a purely competitive situation, despite the fact that each retailer’s benefit would be greater if all provided the services than if none did.” Id. at 55, 97 S.Ct. at 2560. The Court observed that a rule of per se illegality for vertical nonprice restraints was not needed or effective to protect in-tra brand competition. As long as inter-brand competition existed, that would provide a “significant check” on any attempt to exploit intrabrand market power. Further, the per se illegality of vertical restraints would create an artificial and perhaps undesirable incentive for manufacturers to integrate vertically. Id. at 57, n. 26, 97 S.Ct. at 2561, n. 26. The nature of the restraints in this case (nonprice territory restrictions), as well as the asserted procompetitive justifications, are similar to those addressed by the Supreme Court in GTE Sylvania. The key difference between the cases is that GTE Sylvania involved vertical restrictions, and that was an important reason for applying the rule of reason analysis. If it is assumed merely for discussion purposes that the rule of reason applies in this case (which, as indicated above, is not the holding here), GTE Sylvania would provide persuasive guidance in analyzing the competitive impact of territory restrictions. While Reese Foods customers may not need the extensive service and repair desired by the electronics customers in GTE Sylvania, it appears that vigorous advertising and promotion of specialty food products would indeed enhance inter brand competition. Before concluding (for discussion purposes) that the restrictions in this case promote inter brand competition more than they eliminate mira brand competition, however, it would probably be necessary to conduct evidentiary hearings to adduce certain evidence. First, if it were concluded after a hearing that certain Reese Foods products were so completely unique, it would appear as though there would exist no inter brand competition to be enhanced. As to such unique products, the territory restrictions would have the effect of eliminating intra brand competition and, perhaps, the only competition. If this were the case, the rationale of GTE Sylvania would seem inapplicable and the restraints would be deemed unreasonable. Second, it