The European Commission imposed a €12.5 million fine on Nike on Monday 25 March for banning traders established in the European Economic Area (EEA) from selling licensed football related merchandising products in other EEA countries.
This decision reflects the opening of an in-depth investigation against the swoosh brand in June 2017 (see EUROPE 11808/13). The institution was concerned at the time that Nike had limited the possibility for traders to sell merchandise across borders and online in the EEA since July 2004.
Following this investigation, the institution first considered that the company had imposed direct measures restricting out-of-territory sales by licensees. These measures included clauses prohibiting such sales, obligations to notify Nike of orders or to pay double royalties for such sales.
Nike has also implemented indirect measures to restrict cross-border sales, for example by threatening licensees to terminate their contracts if they sell goods outside their national territory of establishment. The swoosh brand also required major licensees in different EEA countries to sub-license the use of intellectual property rights only to sellers established in their national territory of establishment.
Finally, the company included clauses explicitly prohibiting licensees from supplying merchandising products to retailers who can resell these goods out of territory in some contracts.
The Commission therefore considered that, through these practices, in force from July 2004 to October 2017, Nike had segmented the single market and prevented the sale of products across borders, to the detriment of European consumers, which was found to be a violation of EU competition law rules.
As Nike cooperated with the institution during the investigation, a 40 % reduction in the fine was granted, reducing it to €12.555 million. (Original version in French by Lucas Tripoteau)