The “Interesting” Market Definition Awards
Some of our most successful recent posts have had to do with competition competitions and legal awards. Given that it’s particularly busy and we don’t have time to write something more substantive this interest, we have decided to give awards to the smallest, most absurd or for-whatever-reason funny market definitions used or attempted in competition cases (all jurisdictions count).
In order to get the ball rolling, here are my examples:
–The relevant market for “Bar Mitzvah tours of Israel” discussed in this 1995 7th Circuit Opinion that starts this way: Bar mitzvah tours of Israel. That is the market defined for the antitrust claim in this case. It is an absurd market definition”.
-The relevant market of “Asterix at the Olympic Games” upheld by Austria’s Supreme Court, which noted that any film could constitute a market of its own (see here)
-The one that we discussed in the post “We owe you an apology” (adult-content warning) (the bold is to make sure you don’t click)
–Licenseable ope…sorry, no ongoing cases.
-In this case the funny thing is not so much the market but the alleged dominant entity: the Cistersian congregation of the Immaculate Conception was found to be dominant in the maritime route linking the continent and the isle of Saint Honorat. The congregation had apparently refused to authorize third parties to provide additional transport services. The French competition authority dismissed allegations of unlawful abuse. It found that the limitation of tourists was objectively justified by the necessity to preserve the quietness of the monks. No kidding. See here.
Your contributions will be much appreciated!
P.S. The Bed of Procrustes (tailored to fit its occupant) is pictured above
Chillin'Competition 
Brilliant!
Thomas Sharpe
3 March 2017 at 1:47 pm
I don’t know if this definition qualifies as it was not upheld by a Court, but in the (eventually settled) motorsport case around the turn of the century, DG Comp in an SO tried to establish a market for “the broadcast by terrestrial means on Sunday afternoons of television coverage of open-wheeler motor sport races aimed at men aged 16-32”. It deserves some form of recognition.
Years ago I wrote an article comparing block exemptions to a “procrustean bed”. Good to see the benefits of a classical education for antitrusters.
Stephen Kinsella
3 March 2017 at 1:55 pm
How about a market for bull semen, with some discussion as to whether buying ‘testingbull semen’ (i.e. semen from Bulls that haven’t yet proven themselves as highly (re)productive is a substitute for buying ‘breedingbull semen’ (where the bull is like stier Sunny Boy, google that) and natural insemination.
Hans
3 March 2017 at 1:59 pm
I was entertained by a finding that cheese markets are narrow in France (because French consumers are discriminating), but much wider in Germany (because German consumers are not). Quite rude really…
“As regards the French and Belgian markets, the market investigation showed that consumers are very sensitive to types of cheese and that any price increase on manufacturer-brand camembert would lead consumers to move over to retailer-brand camembert rather than to manufacturer-brand coulommiers or brie. German consumers, however, do not generally distinguish between camembert and brie. A more general market definition therefore seems justified for Germany. The Commission has reached similar conclusions for Austria, Hungary, Poland and the Czech Republic.” (Bongrain/Sodiaal, merger decision)
Anon99
3 March 2017 at 2:15 pm
here’s a recent one:
L’Autorité a sanctionné le leader français de la boule de pétanque pour avoir abusé de sa position dominante en imposant une politique tarifaire à certains de ses distributeurs. De mai 2009 à mi 2016, les revendeurs des boules de pétanque Obut, ont également fait l’objet de menaces ou mesures de rétorsion de la part d’Obut. Ne contestant pas les faits Obut a souhaité transiger avec l’Autorité qui a fixé le montant de la sanction à 320 000 euros.
David
3 March 2017 at 2:40 pm
Case C-0789/16 Palacios/Fuentetaja: the Spanish competition authority considers that frozen or refrigerated Spanish omelette (“tortilla de patatas”, which many put on the same pedestal as gazpacho and paella) does not belong to the same relevant market as other ready meals, such as pizza or pre-cooked food. From a demand-side perspective, this completely misses the point – the authority could not ignore that Spain is divided into two irreconcilable groups: those who claim that tortilla must be made with onion and those who fiercely defend a simple, elegant mix of potato and egg. As tortilla-eater, antitrust lawyer and Spaniard (probably in this order), I find the absence of discussion about this segmentation absolutely regrettable.
Alvaro Pascual
6 March 2017 at 11:21 am
NSFW case: the Brazilian CADE once reviewed a transaction involving ‘adult entertainment’ movies for TV, but the relevant market included exclusively the ‘hard core’ type, given the scope of the reported joint venture… (Case 08012.000219/2007-66)
Jose (Zeca) Berardo
6 March 2017 at 2:13 pm
I was a frequent customer of the La Croisette-Saint Honorat line during my childhood summers and I can definitely recommend the trip if you can live with the monopoly overcharge.
By the way, Stephen, the Formula One example was one below the belt 🙂 I actually think that the market definition for audiovisual rights in that case was well reasoned. Presumably we will never know.
Eric
6 March 2017 at 3:21 pm
Some serious contenders from the Spanish competition authority:
-The relevant market for helium kits cylinders for balloon inflation (https://www.cnmc.es/sites/default/files/1531987_11.pdf), where the Spanish competition authority analyzed the fierce competition existing between this market and the retail sales outlets where balloons are inflated, since “customers are normally subject to strong pressure when taking the [vital] decision of whether to purchase the helium cylinders and inflate the balloons themselves or go to a store which will inflate the balloons for them”.
– The relevant market for severe urinary incontinence adult-diapers (https://www.cnmc.es/sites/default/files/896962_126.pdf). The Spanish competition considered that this market was so strategic that it deserved its second all-time record fine and a sanction to individual executives of the conspiring businesses for the first time since the agency´s establishment.
– The relevant market for Magic cards (https://www.cnmc.es/sites/default/files/234872_15.pdf), another key strategic sector for the Spanish economy where 5 distributors were jointly fined with 7,000 euros (one party being specially damaged with a fine of 148 euros).
Carlos
7 March 2017 at 6:04 pm
Here is a Mexican case: On year 2000 a merger between tequila producers was not approved by the Federal Competition Commission due to the high concentration of tequila market (despite the important volume of tequila brands) and the market power of the undertakings that would have resulted from the merger. The “interesting” side of the story is that the applicants contested the resolution arguing, among other things, that rum should be considered as a substitute of tequila and that tequila consumption would increase 7.5% if rum price increased 10% (without giving supporting evidence on why this would be the case). The recourse was not successful and the conclusion of this story is that rum is not substitute of tequila. (CNT-85-99).
Lucy
7 March 2017 at 8:15 pm
I’ll throw in one more along the lines of the Brazilian precedent. I actually forgot I had already written about it here: https://chillingcompetition.com/2011/11/22/antitrust-litigation-over-the-xxx-domain/
“In November 2011, Digital Playground Inc., an adult-movie company based in California, and Manwin Licensing International (Manwin), a porn mogul based in Luxemburg, filed an action against ICANN and ICM, alleging various violations of Section 1 and 2 of the US Sherman Antitrust Act.
Manwin and Digital Playground argue that ICANN and ICM harmed competition in two different markets linked to the .xxx domain registry services. The first is a “defensive registration market” whilst the second is an “affirmative registration market”.
With regard to the defensive registration market, according to the plaintiffs, “owners of trademarks, owners of domain names in other TLDs and owners of other name rights [are obliged to]purchase domain names in the .xxx TLD […] to protect their names from loss of goodwill, prevent consumer confusion, or prevent association with adult entertainment”. That could indeed be considered as a form of racket on domain names operators, which are forced to defensively register .xxx addresses to protect their reputation”
Alfonso Lamadrid
8 March 2017 at 11:28 am
Mauritius Competition Commission: a market for “telecommunication manhole covers” (http://www.ccm.mu/English/Documents/News_2012/05.12.12.pdf)
“[…] 3.4 The design of the telecommunication manholes or scuttles could be different from the other
types as the underground wiring infrastructure would require customised specifications due to
specific security reasons. For example, the size of the scuttle would differ and the load of the
covers is defined as per the location of the product. Those placed on roads would normally be
heavy duty metal covers and of specified sizes. Certain covers are also designed to encompass
a keyhole and; security keys would be used to access the infrastructure. This would normally
occur in cases where high security of the underground telecommunication infrastructure is
required.
3.5 Following discussions with major international suppliers, it has been pointed out that the
covers used for the different projects (E.g. Waste water, Telecommunications) are
interchangeable to some extent. However this is not the best alternative for the
telecommunications infrastructure due to the safety requirements mentioned above.
3.6 Therefore the product dimension of this investigation would be limited to telecommunications
manhole covers.”
Tel_Co
14 March 2017 at 10:48 pm
What about a market for the wholesale distribution of the “Harry Potter and the Order of the Phoenix”?
Polish Appellate Court Judgment, VI ACa 983/09, (Harry Potter).
Marcin Mleczko
5 June 2017 at 9:52 am