奇虎360诉腾讯QQ滥用市场支配地位案一审评析(三)
Perspective on the First Instance of Qihoo 360
Suing Tencent QQ for Abuse of Dominant Position in Market
June 20th, 2013 by Feng Jiang, Lawyer from GuangDong BaiLiFu LAW FIRM,Guangdong Province ,China
Keywords: Qihoo 360, Tencent QQ, Anti-monopoly in Internet, Abuse of Dominant Position in Market
Abstract: Based on the Judgment of first instance made by The High People's Court of Guangdong Province (hereinafter, referred to as “GDHC”) of case sued by Beijing Qihoo technology Co.Ltd. (Hereinafter, referred to as “Qihoo
I. Definition of Relevant Market,
A. Definition of Relevant Market by QIHOO 360
QIHOO 360 considers, Instant Message software market means the system service used for real-time communication, which allows more than one to use and transfer text messages, documents, phonetics, and video etc. It is hard to replace the instant message service with E-mail and telephone communication. Thus these do not belong to the same market. Only Chat Function of Micro blog is in same market with Tencent QQ, not Micro blog itself. The involving geographic market in the Case shall be Mainland Market in
B. Definition of Relevant Market by Tencent QQ
Tencent QQ believes that, Instant Message software & service market include “vocal message,” of QIHOO 360, “Youni ,” of SNDA,“iMessage”of APPLE," WO friends" of UNICOM , “ Fetion”, “Ali wangwang,” “ Baidu Hi” &“ YY voice” . Furthermore even Sina Microblog also has Chat Function, all these should be put into Instant Message software & service market. If Tencent QQ charges, it has great possibility of 87% users to change for other product. Actually it is easy to enter into and expand in Instant Message software & service market. The involving geographic market in the Case should be Global Market.
C. Judgment of Relevant Market by GDHC
Firstly, Definition of Commodity Market
Although GDHC believes that the Relevant Commodity Market is Instant Message software & service market, neither GDHC agrees Qihoo
Secondly, Definition of Geographic Market
GDHC upholds Tencent QQ’ view on Global Market, instead of domestic market in
As aforesaid, operator usually provides multi-language version of instant message software to meet different needs of user. Users in Mainland
D. Analysis of Definition of Relevant Market by the Author
The Author considers, the definition of Relevant Market is the premise to see if an enterprise has dominant market position or not. But there is uncertain risk lies in definition of Relevant Market. As for one Antimonopoly Case, it may be different conclusion between legal Institution of Anti-monopolization and Courts. And it is same among Courts. Theory of Anti-monopoly as well as judicial practice in
Since Tencent QQ provides free service to User, User pays for "hidden" price including tolerance for instability as well as pop-up ads. And it is hard to quantify. Thus Non-price factors take precedence over the price factors. Moreover, there are discrepant issues in Instant Message product. Thus, the Author considers the SSNIP testing may not be the most effective way.
Firstly, Analysis on the Definition of Commodity Market