1. Introduction

Except for some relatively low cost common usage items, for which part replacement is overall not economically justified.

Original manufacturers of complex products use a variety of means to maintain control of the aftermarket, such as technical means (e.g. computer codes for printer cartridges), advertising, sales and marketing techniques, part numbering systems, contractual arrangements with the distribution chain.

In some industries producers of original products resort to business models of setting artificially low prices for original products, while pricing component parts high. This strategy works particularly well in products which require regular “refills” such as printer cartridges (see e.g. Berns 2013, note 9, with reference to Gerber 2005), electric toothbrushes and coffee makers. The success of this strategy was proven early on by Standard Oil’s introduction of a safe and long burning kerosene lamp, the Mei-Foo lamp in China. The lamp itself was sold for almost nothing and even often given away for free with the purchase of kerosene. The profits came from the ensuing sales of kerosene, which opened up the Chinese market for Standard Oil; see Berns 2013, p. 1.

These new entrants were perceived, to some extent, as unfairly competing by free-riding on the primary producers’ efforts. Increased assertion of trademarks by primary producers led to a terminological division of the market into “original” and “non-original” equipment (see Berns 2013, p. 8).

Contributing to the lack of progress is the absence of recent comprehensive data that would verify the stakeholders’ contentions and allow a more accurate assessment of the situation. The European Commission’s Proposal for a Directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs (COM(2004) 582 final – 2004/0203 (COD)), had gathered a certain amount of data upon which it based its findings, but by its own admission, these data were often not sufficient to be conclusive. Other position papers following it (e.g. Europe Economics The Economic Review of Industrial Rights in Europe – Final Report, MARKT/2013/064//D2ST/OP, January 2015, commissioned by the European Commission), added some new data, but partly relied on prior data, as did various position papers following it. See ECTA, Design Committee, Position Paper Designs and Spare Parts, 2016. The French Competition Authority’s report of 2012 (Autorité de la concurrence, Avis n° 12-A-21 du 8 octobre 2012 relatif au fonctionnement concurrentiel des secteurs de la réparation et de l’entretien de véhicules et de la fabrication et de la distribution de pièces de rechange) has assembled information up the years 2010–2011. Yet other data sets are promoted by lobby associations. Overall, however, given the speed of technological development, data which are several years old, must be considered with caution.

See infra chapter 3.

Cf. Kur 2016, p. 21: For instance, parts of cars which are not visible, are brakes and couplings. In contrast, the visible parts are mainly those parts that are affected in case of a crash (“crash parts”). For component parts, see in particular infra section 3.​3.