Amicus Brief of 29 IP, Internet Law, & Antitrust Professors in 1-800 Contacts v. F.T.C.
30 Pages Posted: 21 Sep 2019 Last revised: 18 Nov 2019
Stanford Law School
Santa Clara University - School of Law
Date Written: September 12, 2019
This amicus brief supports the FTC's position in the 2d Circuit appeal of 1-800 Contacts v. FTC. The brief was joined by 29 intellectual property, Internet law, and antitrust professors.
The case involves 1-800 Contacts' settlement agreements with its online competitors in which they agreed not to bid on each other's trademarks as keywords for search engine advertising. The FTC held that 1-800 Contacts' conduct violated antitrust law.
The brief makes two main points. First, the brief shows how game theory explains 1-800 Contacts' use of settlement agreements for anticompetitive purposes. Second, the brief explains how trademark law provided only pretextual justification for 1-800 Contacts' settlement campaign.
Keywords: 1-800 Contacts, online retailing, trademark, FTC, federal trade commission, keyword advertising, adwords, settlement, antitrust, advertising, search engine, bid rigging, market division, horizontal restraints, game theory, prisoner's dilemma, trademark bullying
JEL Classification: K21, K42, K1, C7, D4, I11, L41, L81, M37, O33
Suggested Citation: Suggested Citation