New Zealand Case Law: Decisions & Judgments

Topic

Market definition

Legal area

Court

18 Dec 2017

NZME LIMITED v COMMERCE COMMISSION [2017] NZHC 3186

Citation

[2017] NZHC 3186
Court

High Court

The High Court upheld the Commerce Commission's determination: it was lawful and open to the Commission to define the relevant two-sided markets as it did and to find likely SLCs in the online national news reader market, the Sunday newspaper reader market and in both reader and advertiser markets for community newspapers in overlapping areas; the Commission lawfully exercised its s67 authorisation function by taking into account out-of-market detriments including loss of media plurality and reduction in quality, and properly concluded that those significant unquantifiable detriments outweigh…
9 Sept 2014

SEXWAX INCORPORATED V ZOGGS INTERNATIONAL LIMITED CA461/2013 [2014] NZCA 311 [9 September 2014]

Citation

[2014] NZCA 311
Court

Court of Appeal

The Court held that the MR ZOGS element is an essential and memorable feature of Sexwax's complex mark which enjoys reputation/awareness in New Zealand among those exposed to its products; the relevant assessment under s 17(1)(a) is against those exposed to the applicant's goods and aware of the opponent's mark (not the entire buying public); given the similarity of MR ZOGS and ZOGGS and overlap in retail channels there is a reasonable likelihood of deception or confusion and Zoggs failed to show otherwise, so registration of ZOGGS must be refused.
25 May 2012

NUTRAMARKS, INC. V NATURE'S LIFE NZ LTD HC AK CIV 2011-485-002448

Citation

openlaw-b92ecf75_c091_4353_a5f9_b9372e0df21f.pdf
Court

High Court

Nutramarks failed to discharge its evidential onus to prove awareness of its NATURE'S LIFE marks in the defined specialised New Zealand market at the relevant date because sales evidence was not shown in context and was negligible; on that basis the Assistant Commissioner's decision upholding registration of Nature's Life's mark was correct; alternatively, even if awareness were established, the marks and goods/markets are sufficiently different that use of the Nature's Life mark would not be likely to deceive or cause confusion.
4 Apr 2012

MASTAGARD PLASTIC RECYCLING LIMITED V CCC TWO LIMITED HC CHCH CIV 2010-409-001012

Citation

openlaw-79fbba62_70e6_4169_a523_722f3305b1bf.pdf
Court

High Court

The court construes 'achieved locally' to mean sales achieved between domestic suppliers and domestic consumers (domestic sales only), excluding overseas sales or exports including those effected via local brokers; subjective intentions and non‑qualifying opinion evidence are inadmissible for interpretation, and the contractual price‑setting mechanism (local quotes, averaging) supports the domestic reading.
28 Oct 2010

COMMERCE COMMISSION V SIEMENS AG HC AK CIV 2007-404-2165

Citation

openlaw-d9611b2e_95a9_4128_bc1e_4c02f2beee9c.pdf
Court

High Court

The Court found a thin New Zealand market for high voltage GIS existed but the Commission failed to prove on the balance of probabilities that Siemens gave effect to cartel price-fixing in the three budgetary responses. Factually the alleged cartel provisions did not demonstrably govern valuation-type budget enquiries, Siemens' contemporaneous internal MP-Kalk/VDB processes and the responsible employees' independent judgments produced the figures, and there was no reliable evidence Siemens implemented cartel price lists for the three transactions. As interpreted, s30 does not extend to remote…
1 Sept 2010

THE COMMERCE COMMISSION V TELECOM CORPORATION OF NEW ZEALAND LIMITED AND ANOR SC 76/2009

Citation

THE COMMERCE COMMISSION V TELECOM CORPORATION OF NEW ZEALAND LIMITED AND ANOR SC 76/2009
Court

Supreme Court

The court applied the counterfactual/comparative test: to establish use of dominance the Commission had to prove on the balance of probabilities that Telecom would not have introduced the 0867 package in a workably competitive market; the Commission failed to discharge that burden because the evidence did not show that a non‑dominant firm would have refrained from adopting an analogous measure to address termination‑charge asymmetry and congestion; accordingly Telecom did not use its dominance and the appeal was dismissed.
30 Oct 2009

THE COMMERCE COMMISSION V TELECOM CORPORATION OF NEW ZEALAND AND ANOR SC 76/2009

Citation

SC 76/2009
Court

Supreme Court

Leave to appeal was granted to determine whether the Court of Appeal erred in applying a counterfactual test and thereby wrongly concluded that Telecom had not abused a dominant position by introducing the 0867 service.
9 Oct 2009

COMMERCE COMMISSION V TELECOM CORPORATION OF NEW ZEALAND LIMITED AND ANOR HC AK CIV 2004-404-1333

Citation

openlaw-21f853af_6df3_4cb3_874e_2fc909222793.pdf
Court

High Court

The Court held that Telecom used or took advantage of its dominance/market power in the wholesale data tails market from 18 March 2001 until late 2004 by charging wholesale prices for data tails that breached ECPR (and in many instances exceeded Telecom's own retail prices), thereby causing a price squeeze that deterred competition in downstream retail and backbone markets; declaratory and pecuniary relief is limited to conduct after 18 March 2001 and the question of penalties was reserved for later determination.
4 Aug 2009

COMMERCE COMMISSION V TELECOM CORPORATION OF NZ LTD AND ANOR CA CA288/2008

Citation

openlaw-bfcb7e2f_4dbc_4014_b1b0_f83c85d772b6.pdf
Court

Court of Appeal

The Court upheld the High Court: although Telecom was dominant in the relevant terminating access market, the 0867 conduct was not unlawful under s36 because a properly constructed counterfactual showed a non-dominant firm in the assumed competitive market could rationally have introduced 0867 to address termination arbitrage and congestion; therefore Telecom did not 'use' its dominance for an anti-competitive purpose and the appeal is dismissed.
27 Jul 2009

COMMERCE COMMISSION V CARDS NZ LIMITED AND OTHERS HC AK CIV-2006-485-2353

Citation

openlaw-5a8d23ed_ccc1_4906_99d4_47d9e65eb1dc.pdf
Court

High Court

The Court ordered that the economic experts give evidence by the hot tub procedure because the process better facilitates clarification and juxtaposition of competing economic opinions, aids efficient identification of real issues, and does not breach natural justice where experts' written briefs are read and the Court exercises close supervision; the Court imposed initial time limits (20 minute summaries, 10 minute commentaries) and permitted limited inter-expert comment during cross-examination, reserving flexibility to vary these directions at trial.