16 January 2015

FCO pushes back on Asics’ revised online sales policy

Asics recently publicly announced that it had revised its selective distribution sales policy, in particular by making changes regarding online sales by which the sports shoe manufacturer sought to remedy competition concerns raised by the German Federal Cartel Office (FCO) last year.  The competition concerns of the FCO related in particular to outright restrictions on online traders from reselling Asics’ products through third party platforms such as eBay and Amazon, from using Asics’ trademarks for re-sales over these platforms and from engaging in price-comparison sites with the use of the Asics’ trademark.  However, from Asics’ public announcement, it appears questionable whether the company did in fact drop its platform ban such that its retailers are allowed to sell products through this channel.

While Asics claims to have been in continuous dialogue with the FCO over its revised distribution policy to ensure competition compliance, the FCO has now indicated that Asics’ new distribution policy still raises antitrust concerns in that it continues to restrict online trade.  The FCO indicated that negotiations with Asics about settling the case on the basis of voluntary measures to be adopted by the company have failed and that the FCO will continue its proceedings against Asics on this basis.

In a parallel case concerning Asics’ rival Adidas, the FCO terminated its proceedings in June 2014 after Adidas revised its e-commerce sales terms to allow for sales of its products through online marketplaces and using the Adidas trademark for marketing purposes in search engines.  Following the termination of these proceedings, the FCO published a detailed case report on the Adidas case in August 2014 (available on the FCO’s homepage in German), which sets out the FCO’s preliminary view regarding competition aspects of the general platform ban and other details of the Adidas case.

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