Are vertical restrictions on the use of trademarks in online search advertising always anticompetitive? The European Commission’s Guess decision

May 13, 2020

(by Elias Deutscher)[1] Can the owner of a well-known brand lawfully prevent its independent retailers from using its trademarks and brands to advertise their products on Google? This question has major implications, in particular, for small- and medium-size retailers who largely benefit from the reduced costs of online search advertising and the new sales channels offered by online distribution. For quite some time, issues surrounding the use of trademarks as keywords in paid online search advertising have stirred considerable controversy amongst trademark and IP lawyers. Recently, this question also came into the focus of competition law enforcers. In the Case AT. 40428 Guess,[2] the European Commission assessed for the first time the legality under European Union (‘EU’) competition law of a vertical agreement whereby a trademark proprietor restricted the ability of its licensed distributors to use or bid for its brand names and trademarks as keywords in Google AdWords. Read the rest of this entry »


Leasehold Rip-Offs: does the CMA reach the parts that other agencies cannot?

April 1, 2020

[by Tola Amodu] Many years ago, there was an advertisement on TV suggesting that a certain alcoholic beverage – those showing their age will know which one – “refreshed the parts other beers cannot reach”. In a similar vein, it is just possible that the Competition and Markets Authority will manage to do something similar in the case of the sale of leasehold houses. The recent CMA report probing the activities of house builders and developers has focused on the unfair treatment of homeowners and the possible misleading of prospective buyers. Will the CMA be more effective than specific legislation for redressing the problem? Read the rest of this entry »


Should competition law be suspended to help deal with the COVID-19 crisis?

March 27, 2020

(By Peter Ormosi and Andreas Stephan) When the escalation in Covid-19 sparked panic buying and shortages of key products, UK supermarkets asked the government to consider suspending competition law, to allow them to co-ordinate supplies and reduce shortages. On 25 March 2020, the UK’s Competition and Markets Authority (CMA) published a document stating that,

Throughout the UK, business are… providing essential goods and services to consumers, to ensure key workers can carry out their important tasks and in getting the country through this crisis. The CMA understands that this may involve coordination between competing businesses. It wants to provide reassurance that, provided that any such coordination is undertaken solely to address concerns arising from the current crisis and does not go further or last longer than is necessary, the CMA will not take action against it. (paras 1.4 and 1.5)

This blog piece examines the consequences of providing this reassurance and asks whether it is a good idea. Read the rest of this entry »


Is Furman right to propose ex ante platform regulation as the best way to address competition concerns in the digital economy?

April 24, 2019

(by Elias Deutscher) Last month, the Digital Competition Expert Panel, chaired by Professor Jason Furman, published its report ‘Unlocking digital competition’ (the ‘Furman report’). The report had been jointly commissioned by the Chancellor of the Exchequer and Business Secretary due to concerns about prevailing high levels in industry concentration, the accumulation of data in the hands of a handful of players and the rise of a few vertically integrated super-platforms. The same concerns have fuelled a European-wide policy debate about the challenges of competition law enforcement in the digital economy (e.g. by the German Federal Ministry for Economic Affairs and Energy and the European Commission).

The Furman report singles out the strategic importance of data and the gatekeeper function of intermediary platforms as central features of digital competition and the most important challenges for competition policy. These features make digital markets more prone to tipping in favour of a few powerful incumbents. Amongst other recommendations, the report proposes to address these concerns through the creation of a specific ex ante regulatory regime for digital platforms. While it outlines some of the basic features of the proposed new regulation, the report omits to clearly set out the underlying rationale and implications of such a regime. It also gives little guidance on its exact scope and implementation. Most importantly, it remains unclear whether the proposed framework will apply only to large, dominant firms, or also to smaller, non-dominant platforms. Read the rest of this entry »


“Facts” from thin air in the CMA Chairman’s letter requesting greater powers?

March 8, 2019

(by Bruce Lyons) I recently posted a blog commenting on the CMA’s proposals for reform. I was sympathetic with the aims of eliminating unfair pricing and inefficient decision processes. However, I was highly critical of the CMA’s direction of travel and the worrying side effects of their proposals. I suggested two alternative proposals that would directly address the aims without the harm. In this short blog, I pick up two “facts” used by Lord Tyrie, Chairman of the CMA, to motivate the need for reform. These are particularly important because they relate to exactly the type of statistical evidence relied on by the CMA in its daily competition analysis: concentration and margins. Read the rest of this entry »