Posts Tagged ‘competition law’

Return of RRPs to the electrical goods sector

Friday, February 3rd, 2012

The Competition Commission has revoked the Domestic Electrical Goods Order having concluded that increased competition (as well the fact that some of the affected goods are now obsolete!) removed the need for it.

The order addressed competition concerns dating back to 1997 in relation to certain types of white and brown goods and prohibited recommended resale prices (RRP) by suppliers and, except in limited circumstances, a refusal to supply goods to any retailer.

Time will tell whether there is a move back to RRPs and to more use of selective distribution. However, it seems unlikely that the revocation of the order will change the competitive nature of the sector and, of course, suppliers and retailers will continue to need to ensure that they comply with both UK and EU competition law.

Matthew Woodford

Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com

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Court of Appeal sheds Sun-light on M-Tech’s Euro-defences

Friday, August 27th, 2010

Oracle (formally Sun Microsystems) brought infringement proceedings against M-Tech for importing disk drives (bearing the SUN trade marks) without its consent into the European Economic Area (EEA) that had been first marketed outside the EEA. Under European trade mark law, putting goods on the market in the EEA without the trade mark owner’s consent amounts to trade mark infringement.

Oracle deliberately does not publish information about whether its goods have first been sold in the EEA, making it virtually impossible for re-sellers to know where the goods were first marketed. This acts as a deterrent to the importation of Oracle hardware generally, regardless of place of first marketing.

M-Tech said Oracle’s policy was contrary to European competition law but the High Court granted summary judgment in Oracle’s favour. The decision was overturned by the Court of Appeal who decided that M-Tech had a real prospect of success with its so called “Euro-defences”.

M-Tech still needs to establish those arguments in order to win its case and we could be waiting some time for an answer, given that a reference to the Court of Justice of the European Communities looks likely.

Posted by Emma Tuck, who specialises in Intellectual property disputes relating to patents, trade marks, designs and copyright; non-contentious intellectual property matters including advising on licensing, assignment, confidentiality and collaboration agreements

Emma Tuck

Emma Tuck
0121 237 3908
etuck@brownejacobson.com

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Cheaper Cigarettes?

Friday, March 12th, 2010

The European Court of Justice has just handed down three rulings holding that Irish, French and Austrian laws that fixed minimum retail prices for cigarettes infringed EU law. 

Arguments by all three countries that the laws were necessary to protect public health were unsuccessful. 

The cases concerned the interpretation of a specific European Directive that harmonises national excise duties on tobacco products rather than the application of EU competition rules.  However, the Court considered that a minimum retail price for cigarettes could undermine competition between manufacturers and importers of cigarettes. 

The cases serve as a useful reminder that the EU legal system will strive to protect price competition and that other legitimate public policy concerns are unlikely to succeed in overriding this principle.  No doubt followers of the debate on minimum alcohol prices will be taking note. 

Of course the question that all smokers in Ireland, France and Austria will want to know is whether this means that their cigarettes will be cheaper.  We’ll have to wait and see but the Court made it clear that the Directive in question does not prevent the countries from protecting public health by increasing taxation on cigarettes.   It simply prevents the imposition of a minimum retail price. 

I suspect that this means that the tax man rather than the smoker will be the winner!

Matthew Woodford

Posted by Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com

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Breached competition law? Sue your employees!

Tuesday, January 19th, 2010

The High Court has cleared the way for companies in the Safeway Group to seek damages from eleven ex-employees and directors in relation to an OFT penalty (yet to be imposed) for competition law breaches.  The penalty could be as high as £16.4 million. 

Safeway is alleging that the ex-employees were in breach of their employment contracts and fiduciary duties, that they were negligent and that they conspired to procure the companies’ participation in anti-competitive practices. 

The ex-employees argued that the claim should be struck out on public policy grounds and, in particular, the rule that a person who commits an illegal act or unlawful act cannot seek an indemnity for any consequent liability (ex turpi causa non oritur action).  They argued also that the claim is fundamentally inconsistent with the UK competition law regime. 

The High Court rejected the application to strike out the claim on the basis that Safeway has a “real prospect” of defeating the defences at trial. 

The concept of companies suing employees is not new but it is new in the field of competition law.  We must now wait to see if Safeway is successful at trial once all of the evidence has been considered.  If it is then it will signal further personal risk for employees who engage in anti-competitive practices.  The result will surely be that employees demand more and more guidance on what they can and cannot do.  Compliance officers and in-house legal departments can expect their phones to be busy!

Matthew Woodford

Posted by Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com

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