360 back to "3Q War": respecting judgments and pushing giants more open

the facts

Anti-monopoly law has been in place for years, the Supreme Court's first trial of the first Internet antitrust case was pronounced today.

On the morning of October 16, the Supreme People's Court sentenced the second instance of 360 to the abuse of market dominance dispute by Tencent today, which found that the first instance judgment found the facts to be improper, but the applicable law was correct and the verdict was appropriate. The appellant's grounds of appeal, although partially established, do not affect the outcome of this case. According to the PRC anti-monopoly Law 17th, 18th, 19th, "The People's Republic of China Civil Procedure Law," article 170th, paragraph (a) of the provisions, the verdict is as follows: Dismiss the appeal, upheld the original decision.

After the trial, 360 of the "First financial daily" reporter responded, "We regret the final result, but respect the court final judgement." As the first typical case of China's anti-monopoly law in the Internet field, 360 v. Tencent's abuse of the market dominance case itself has aroused the concern of the industry, users and the legal profession, and has promoted the creation of Chinese Internet Enterprises ' innovation ecology, and promoted the opening and competition of China's market economy. ”

360, said: "Although not to win the final victory, but through antitrust litigation in four years, Chinese entrepreneurs by the giants of the" plagiarism "and" bundled "the phenomenon is gradually reduced, the positive impact of internet antitrust has begun to appear. ”

"It can be seen that one of the benefits of the 3Q war is to make Tencent more open." After 3Q, Tencent began self-examination and launched 10 closed-door meetings on the theme "Diagnosing Tencent", with more than 100 observers criticizing it. Subsequently, Tencent announced the opening of the 8 major platforms, including QQ, Tencent community, Tencent Weibo, and so on, and complied with the torrent of history. ”

This is the second case in the "3Q War" series. Earlier, Tencent v. Qihoo 360 unfair competition case, has been the highest law on February 24 this year to make a second judgment, dismissed Qihoo 360 appeal, the court of first instance to maintain the verdict-Qihoo company constituted unfair competition, the award of its compensation for Tencent economic losses and reasonable rights to defend the cost of 5 million yuan.

Looking back, in November 2012, Qihoo 360 sued the senior people's Court in Guangdong province, arguing that Tencent abused the market dominance of instant messaging software and service-related markets and constituted a monopoly.

March 20, 2013, Beijing Qi Tiger Technology Co., Ltd. sued the defendant Tencent Technology (Shenzhen) company, Shenzhen Tencent Computer System Co., Ltd. abuse of the market dominance dispute case in Guangdong Province high People's Court to make a first instance judgment, dismissed Qihoo company all lawsuit request, and was sentenced to bear 796,000 of all litigation costs.

In respect of the above judgment, Qihoo said that he appealed to the Supreme People's Court and claimed 150 million yuan in economic loss.

November 26, 2013, the second trial of the case in the Supreme People's Court. The trial lasted a full two days, as of the end of the trial, the appellant and the appellant are still not in the same, all adhere to their respective claims. At that time, 360 CEO Zhou appeared in the "2013 Entrepreneurial State Annual meeting", Zhou said that the case has aroused public concern for the monopoly, for him, "is the loss is the value of the win."

One focus of the case is whether the case is appropriate to use the "hypothetical monopolist test" method to define the relevant market and whether the court of first instance is using the method correctly.

The Supreme Court believes that as an analytical approach to defining the relevant market, it is assumed that the monopolist test (HMT) has universal applicability. In the absence of a free internet based instant messaging service that has long existed and become a business model, users are highly price sensitive, and changing the free policy to charging even a small amount of money can lead to a massive loss of users.

In this case, the Supreme Court said, taking a hypothetical monopolist test based on relative price increases, it is likely that a product that does not have an alternative relationship will be included in the relevant market, leading to a broader definition of the relevant market. Therefore, a hypothetical monopolist test based on a relative price rise is not suitable for this case. The first instance of the court in this case directly in the use of price increases based on the assumption of monopoly testing, improper.

On the implementation of Tencent's "product incompatibility" behavior (user two choose a) whether the anti-monopoly law prohibits the restriction of trading behavior. The Supreme Court believes that Tencent's motivation for excluding and restricting competition in the Instant Messaging service market is not obvious. Second, Tencent's "product incompatibility" behavior lasted only one day, but it brought more active competition to its instant-messaging service market and had a very weak impact on the security software market.

According to the verdict, this shows that Tencent's "incompatible products" Act does not constitute an abuse of market dominance by the anti-monopoly law, and it also confirms the conclusion that Tencent has no market dominance.

Whether or not Tencent constitutes a tying act prohibited by anti-monopoly law. The Supreme Court concluded that there was no reliable evidence that the case of the tying Act had enabled Tencent to extend its leading position in the instant messaging market to the security software market. Second, QQ instant messaging software and QQ software Management packaging installation has a certain degree of rationality.

"Through the QQ instant messaging software and QQ software Management packaging installation, to achieve the function of QQ instant messaging software integration, users can better manage QQ instant messaging software to protect account security, thereby improving the QQ instant Messaging software performance and value." Therefore, Tencent does not constitute the prohibition of the anti-monopoly law tying behavior. "The verdict says.

Finally, the Supreme Court believes that the first instance judgment found that the facts are improper, but the applicable law is correct, the result is appropriate, so dismiss the appeal, upheld the original decision.