Trade Mark Infringement and Honest Concurrent Use in Keywords Advertising

This article will examine Mr. Justice Carr’s recent judgment in Victoria Plum Ltd v Victorian Plumbing Ltd & Others [2016] EWHC 2911 (Ch), handed down on 18 November 2016. The main issue before the Court concerned the defence of honest concurrent use in the context of keywords advertising.

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Introduction on Dawn Raid

Any companies may subject to a “dawn raid”. Dawn raids are surprise investigations of premises carried out by the authorized officers of the Competition Commission (“the Commission”). Dawn raids are usually carried out without prior warning.

When competition authorities decide to carry out a dawn raid on a company, it is usually because they have reasonable grounds to suspect that serious anti-competitive conducts have taken place or is about to take place.

As such, advance preparation is essential since obstruction of search is a criminal offence.

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Umbrella pricing in follow-on actions

Case Summary 6: C-557/12 Kone AG 

I recently stumbled across an interesting judgment by the ECJ on ‘umbrella pricing’.

‘Umbrella pricing’ refers to a situation where an undertaking, who is not a party to a cartel, adjusts its prices higher than what it would otherwise have been able to under normal market conditions, thus benefiting from the cartel’s practices.

The issue before the Court is whether the civil liability of the parties to the cartel extends to ‘umbrella pricing’.

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Liability of an undertaking for the acts of a service provider

Case Summary 5 – ‘VM Remonts’ C-542/14, 21 July 2016 (date of ECJ Judgment)

Issue

For the purpose of Article 101(1) TFEU (EU equivalent of our First Conduct Rule), whether an undertaking would be held liable for a concerted practice arising from the acts of an independent service provider supplying it with services?

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Liability of cartel facilitator

Case Summary 3: AC-Treuhand AG, C-194/14P

Issue: Would a mere facilitator of a cartel be caught by the First Conduct Rule?

The ECJ (“the Court”) in AC-Treuhand AG, C-194/14P, was faced with the issue as to “whether a consultancy firm may be held liable for infringement of Article 81(1) EC where such a firm actively contributes, in full knowledge of the relevant facts to the implementation and continuation of a cartel among producers active on a market that is separate from that on which the undertaking itself operates.” [26]

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Restriction of competition by object

Case Summary 1: Toshiba Corporation v European Commissio Case C-373/14P

The First Conduct Rule

Section 6 (1) of the Competition Ordinance (Cap.619) provides that:

            “An undertaking must not (a) make or give effect to an agreement; (b) engage in a concerted practice; or (c) as a member of an association of undertakings, make or give effect to a decision of the association, if the object or effect of the agreement, concerted practice or decision is to prevent,  restrict or distort competition in Hong Kong.” [Emphasis added]

The use of the word “or” makes it clear that it is non-cumulative. It would follow that where there is a restriction of competition by object, there is no need to prove the existence of anti-competitive effects for the First Conduct Rule to apply. This is consistent with paragraph 3.2 of the Guideline on the First Conduct Rule (“the Guideline”).

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