The online marketplace is growing. Your distributor can`t do without it. But the trader in another area can`t either. What are the acceptable restrictions in your agreements regarding this borderless online market? In most cases, a vertical agreement with a clause limiting a distributor`s right to sell freely online must be addressed: situations generally accepted in the table can only be considered anti-competitive (i.e. prohibited) in exceptional circumstances. This could be particularly the case where the producer or distributor`s market share is greater than 30% and, in the current circumstances, restrictions on online sales effectively and materially block this distribution channel, thereby reducing consumer choice and tariff competition between distributors. They could also be considered anti-competitive if, on the whole, the agreed parameters for certain restrictions are manifestly excessive and disproportionate and their primary purpose, or their main effect, constitutes a significant restriction on online sales (as well as the competition for choice and price associated with them). The distributor is not authorized to print, mail or otherwise use headers, business cards, literature, signage or other insurance on behalf of the supplier (or one of its related companies) or to make commitments on behalf of the supplier (or one of its related companies) without the express written permission of the supplier. The distributor expressly accepts that this agreement does not grant a licence for the use of suppliers (or any of the brands, trade names, service marks or logos (together the “supplier brands”).
However, the distributor may indicate in its advertising and marketing materials that it is a distributor of supplier products and that it uses, if necessary, the supplier brands in its sales/marketing efforts. At the supplier`s request, the distributor will place references to trademarks, copyrights and related patents in its advertisements, advertising brochures and other marketing materials for supplier products. The supplier reserves the right to verify the distributor`s marketing and sales materials before they are published or used. As a result of this use or reference, the distributor will not be entitled to any rights and all of these rights, including value, will be conferred on the supplier and transferred to the supplier. Since a supplier should not restrict passive online sales and that the distributor generally has the right to use the internet for sales, I believe that the use of a third-party market as a seller in the market should not be limited in non-selective distribution agreements and that, where possible, the distributor may even make active sales as a third-party seller. For example, placing ads addressed to users of the website in the assigned area. Faced with these specific risks for the e-commerce sector, vertical agreements and online distribution systems have seen a wave of investigations by the European Commission (EC) in 2017 (the last infringement decision on the vertical agreements 2004-2004)2 in sectors ranging from consumer electronics manufacturers to video games, from hotel reservations to luxury and sportswear. This article focuses on the most recent cases and their impact on bonds on resellers when selling goods online. The competition rules for vertical agreements apply to Internet distributors who may want to use third-party online markets such as Amazon and eBay for their online sales. This may result in difficulties in understanding active and passive sales in these markets and, therefore, whether and to what extent the supplier can limit the use of these markets in general or certain “extensions” of those markets.  Some of these third-party online marketplaces, such as Amazon, also offer the opportunity to become a third-party market provider rather than being a seller in this marketplace.