Amicus Brief of 29 IP, Internet Law, & Antitrust Professors in 1-800 Contacts v. F.T.C.

Abstract

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.