ASICS found to have illegally blocked price comparison engines
The German Bundesgerichtshof has held that footwear and sports equipment manufacturer ASICS’ decision to prohibit its dealers from using price comparison engines was contrary to the competition rules. The Court noted that such restrictions without any qualitative criteria constitute a violation of the competition rules.
Decision of 12 December 2017 by the German Bundesgerichtshof
By assistant attorney Christina Karstensen
Online dealers derive most of their turnover from search engines and marketplaces on the internet. It is therefore difficult for consumers to locate the dealers if the dealers are prohibited by the manufacturers from using or stating their name on these price comparison sites. The case, therefore, gave rise to competition concerns that ASICS’ restrictions would eventually make consumers buy the products directly from the manufacturers, thus shutting out small dealers from the market.
Reasons given by the Court
The German Court noted that price comparison engines allow consumers who have already decided to buy a specific product to search for and select the dealers that offer the best terms, including the lowest price. The Court found that the restrictions imposed by ASICS on its authorised dealers limited consumers’ access to the dealers’ online offers.
With the judgment, the Court upheld the decision of 5 April 2017 by the Düsseldorf Court of Appeal which again upheld a decision from 2015 by the German competition authority, establishing also that the prohibition was not necessary to protect ASICS’ brand image and advisory services.
In its recent Coty judgement, the European Court of Justice held that Coty’s restriction of its dealers’ online sales was permissible as such restriction could be justified by qualitative criteria which can be applied in a selective distribution system.
In its decision in the ASICS case, the Germany Bundesgerichtshof cited i.a. the Coty case, but noted that sports and running shoes – unlike expensive cosmetics products – cannot be regarded as luxury goods.
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