Ban on price search engines and their use – Federal Court of Justice protects retailers. The ban on price search engines and their use by retailers is inadmissible, even in a selective distribution system. Manufacturers and retailers should now have their contractual situation legally examined.
##The Asics case
The jurisprudence and the Federal Cartel Office are increasingly concerned with new methods of online marketing and price competition. The ban on price search engines and their use by retailers by Asics also “enjoyed” the attention of the Federal Cartel Office and the Düsseldorf Higher Regional Court. Asics were a thorn in the side of price search engines and their use by authorized retailers. Asics therefore banned price search engines and their use by retailers in its selective sales system because these price comparison portals increase price pressure among retailers and, in the worst case, lead to a low price spiral. Asics' dealer contracts therefore included a ban on price search engines and their use.
##Ineffectiveness of the ban on price search engines
However, according to the Asics judgment of the Düsseldorf Higher Regional Court of April 5, 2017, this ban is ineffective, even in selective distribution. The Federal Court of Justice confirmed this with its decision of December 12, 2017. The general ban on price search engines and their use by retailers as part of a (selective) sales system is contrary to antitrust law. Blanket bans on price comparison portals that are not based on quality requirements are not permitted.
This is justified by the transparency created by price search engines and their use, which primarily helps small and medium-sized retailers. Price search engines are of considerable importance for consumers because of the large product range on the Internet and the large number of retailers. Price search engines enable consumers to specifically search for the retailer with the best conditions. If a brand manufacturer imposes a blanket ban on price search engines and their use on its retailers, this represents a “core restriction” on Internet sales that is inadmissible under EU antitrust law. If further restrictions on online trading are contractually stipulated, it is not guaranteed that consumers will have access to the authorized dealers' Internet offerings.
If price search engines and their use are banned, consumers will no longer be able to find the best retailers for them on the Internet. According to the Asics ruling, manufacturers are therefore not allowed to prohibit their retailers from using price comparison engines or the respective trademarks for advertising, including price search engines. This is particularly true when many manufacturers of branded products successfully operate their own online shops and work with well-known platforms. By banning price search engines and their use, retailers are deprived of an advertising opportunity and thus a sales channel. If such manufacturers simultaneously impose a ban on price search engines and their use as well as further Internet restrictions on small and medium-sized retailers, the following threatens, according to the BGH: Online trading will only be limited to the manufacturers themselves, very few and large retailers and even fewer leading marketplaces. For the benefit of consumers and small retailers, online trading must remain open and protected.
##Coty judgment of the ECJ
However, in its so-called Coty judgment - read [link text=”here on this link” id=“615″] details of this fundamental judgment - the ECJ took an indirect position in this regard: The ECJ confirmed that restrictions on competition such as the ban on Third-party platforms may be justified to protect the prestige and luxury image of a particular product. Against this new background, it is questionable whether the ban on price search engines and their use to preserve the luxury image of a product can be justified. It is difficult to see why banning third-party platforms for selective distribution should be justified, but not banning price search engines. However, in the decision mentioned above, the Federal Court of Justice did not apply the Coty ruling to Asics sports shoes: In the opinion of the BGH, sports shoes are not luxury goods. This assessment is also questionable.
In the future, it will therefore be increasingly important for companies to be able to argue with the prestige and luxury image of their products. The more respected a brand and the corresponding branded products are in the external perception, the more likely brand manufacturers can make use of the leeway under antitrust law. This is particularly true when it comes to the selective distribution of branded products with a luxury image. Brand manufacturers should therefore legally examine in individual cases whether a ban on price search engines and their use can be considered for luxury products.
