has succeeded in limiting the availability of parts through explicit or de facto exclusive dealing contracts with preferred service providers may be charged with using such contracts to maintain a monopoly.[1]
Other tactics described by commenters involve allegations of potentially exclusionary conduct, such as making products difficult or impossible to disassemble, in order to maintain market position and exclude aftermarket competitors, or the anti-competitive assertion of patent rights and enforcement of trademarks by manufacturers to restrict repairs not authorized by OEMs. Moreover, the use of embedded software that forces consumers to have the maintenance and repair of their products performed by the manufacturers’ authorized service networks may also raise competition issues. Such restrictions may take the form of “software locks” that disable a computerized device repaired outside of the manufacturer’s authorized service networks, or the use of firmware updates that limit third-party repairs. In general, the intellectual property laws and the antitrust laws share the common purpose of promoting innovation and competition. However, misuses of intellectual property rights may create barriers to independent repairs, and thereby harm competition.
A manufacturer’s explanations for aftermarket restrictions are almost always relevant to a court’s assessment of the overall competitive impact of a particular practice.[2] For example, manufacturers may assert that restrictions on competition in aftermarkets are necessary for privacy, data security, efficient design, manufacture, distribution, and safety reasons, and are thus procompetitive. Manufacturers may specifically restrict the options of consumers to repair a product, based on certain asserted explanations, such as enhancing efficiency; quality control; protecting intellectual property rights; or preventing injuries, reputational harms, or other negative consequences resulting from improper repairs. For instance, some manufacturers have asserted that product designs that hamper ISO or consumer repair may prevent injuries while conducting repairs that involve certain dangers, like replacing certain kinds of batteries. Manufacturers also often assert safety and reputational concerns with non-authorized replacement parts or repair services.[3] Justifications need to be scrutinized on a case-by-case basis and should be rejected if found to be a mere pretext for anticompetitive conduct.
The following discussion highlights antitrust principles that courts have applied to antitrust claims involving aftermarkets.
- ↑ Id. at 458 (discussing Kodak policies restricting the ability of ISOs to service and provide replacement parts for Kodak copiers and micrographics equipment).
- ↑ Id. at 466–67 (“Legal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavored in antitrust law. This Court has preferred to resolve antitrust claims on a case-by-case basis, focusing on the ‘particular facts disclosed by the record.’”) (citations omitted).
- ↑ Section V of this Report evaluates manufacturers’ explanations for repair restrictions and finds that that the record contains scant evidence to support them. As noted below, an antitrust inquiry into a particular manufacturer’s repair restrictions would require a fact-specific analysis of the likely competitive effects of the conduct as well as that manufacturer’s asserted rationale for the restrictions.
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