Herb Hovenkamp
@sherman1890.bsky.social
University Professor, Penn Law & Wharton. Comments occasionally on antitrust issues and follows news, public law, economics, and legal history.
I don't disagree, but we also TM bananas (Chiquita and Del Monte). What is that signaling? I'm guessing no product differentiation whatsoever. quality? not unless there are inferior alternatives. And I don't think it's status.
I mean, I don't know if you're being serious here. But by protecting investments in status signaling (by making simulacra illegal), trademark law is going to encourage more status signaling. The upside, of course, is that we also TM's "merchandising shortcut." That is ... 1/
November 2, 2025 at 4:28 PM
I don't disagree, but we also TM bananas (Chiquita and Del Monte). What is that signaling? I'm guessing no product differentiation whatsoever. quality? not unless there are inferior alternatives. And I don't think it's status.
okay, I'm convinced.
Trademark law has *a lot* to do with it. It's a massive social subsidy for social stratification through Veblen consumption.
but does trademark have much to do with it? isn't it the same as Thorstein Veblen's big front yards of untilled ground? ("conspicuous consumption"). Probably easier to fake a Rolex than a big yard.
November 2, 2025 at 4:14 PM
okay, I'm convinced.
but does trademark have much to do with it? isn't it the same as Thorstein Veblen's big front yards of untilled ground? ("conspicuous consumption"). Probably easier to fake a Rolex than a big yard.
Teaching trademark this semester and wondering, for the nth time, why anyone thinks it's laudable to be in the business of making fancy accessories that allow rich people to signal status.
November 2, 2025 at 4:06 PM
but does trademark have much to do with it? isn't it the same as Thorstein Veblen's big front yards of untilled ground? ("conspicuous consumption"). Probably easier to fake a Rolex than a big yard.
I'm not a good predictor, but I have doubts. I don't think that even this SCT wants to extend Trinko to remedies, and the less-restrictive alternative issue seems to be more words than substance.
How attractive will this issue be to the court in your opinion?
November 2, 2025 at 1:07 PM
I'm not a good predictor, but I have doubts. I don't think that even this SCT wants to extend Trinko to remedies, and the less-restrictive alternative issue seems to be more words than substance.
Google's cert. petition agnst Epic Games (10-27, 9th Cir.) asks whether rule of reason antitrust plaintiff has a burden to prove a less restrictive alternative; and also attacks the notion that Trinko's refusal to deal doctrine does not apply to remedies. www.documentcloud.org/documents/26...
Google v Epic Cert Petition + Appendix 10-27-25 Final
www.documentcloud.org
November 2, 2025 at 10:27 AM
Google's cert. petition agnst Epic Games (10-27, 9th Cir.) asks whether rule of reason antitrust plaintiff has a burden to prove a less restrictive alternative; and also attacks the notion that Trinko's refusal to deal doctrine does not apply to remedies. www.documentcloud.org/documents/26...
In Academy of Allergy, 2025 WL 2886701 (6thCir. Oct. 10, 2025) the court held that the SCT’s indirect purchaser rule (in this case “indirect supplier”) precluded an antitrust action against a harmful cartel. A concurrence lamented that fact. It’s time to overrule Illinois Brick.
October 11, 2025 at 8:54 AM
In Academy of Allergy, 2025 WL 2886701 (6thCir. Oct. 10, 2025) the court held that the SCT’s indirect purchaser rule (in this case “indirect supplier”) precluded an antitrust action against a harmful cartel. A concurrence lamented that fact. It’s time to overrule Illinois Brick.
Vols 12, 13, 14 of Antitrust Law, 5th edition came out today—cartels, joint ventures, and Robinson-Patman Acr
October 8, 2025 at 7:22 PM
Vols 12, 13, 14 of Antitrust Law, 5th edition came out today—cartels, joint ventures, and Robinson-Patman Acr
Here is my draft of a relatively short but article-length assessment of Judge Mehta’s Google Search remedies decision. Still under revision and comments welcome. papers.ssrn.com/sol3/papers....
<br>
The Google Search Decision and Antitrust's Remedial Goals
<p><span> </span><span> </span><span>A successful antitrust remedy should undo the effects of any antitrust violatio
papers.ssrn.com
October 2, 2025 at 3:13 PM
Here is my draft of a relatively short but article-length assessment of Judge Mehta’s Google Search remedies decision. Still under revision and comments welcome. papers.ssrn.com/sol3/papers....
My piece on "Finding Monopoly: Antitrust Market Definition" is in the Sep. 2025 CPI Antitrust Chronicle, part of a symposium on market definition in antitrust. No longer paywalled. papers.ssrn.com/sol3/papers....
Finding Monopoly: Antitrust Market Definition
<p>Market definition and calculation of a market share remain the most popular</p>
<p>antitrust approach to assessing the threat of monopoly. One historical met
papers.ssrn.com
September 27, 2025 at 3:38 PM
My piece on "Finding Monopoly: Antitrust Market Definition" is in the Sep. 2025 CPI Antitrust Chronicle, part of a symposium on market definition in antitrust. No longer paywalled. papers.ssrn.com/sol3/papers....
Good piece by Antonie, Gonzales & Shao: self-preferencing occurs less on digital markets than in the old economy; consistent with fact that online consumers have lower search costs, and indicates flaws in Biden admin targeting of online markets. www.cornerstone.com/insights/art...
Self-Preferencing in Retail Digital Marketplaces: Evidence from Transaction Data
The authors analyze retail transaction data to explore self-preferencing practices.
www.cornerstone.com
September 23, 2025 at 8:01 AM
Good piece by Antonie, Gonzales & Shao: self-preferencing occurs less on digital markets than in the old economy; consistent with fact that online consumers have lower search costs, and indicates flaws in Biden admin targeting of online markets. www.cornerstone.com/insights/art...
CoStar, 2025 WL 2573045 (9thCir) refused to dismiss a complaint alleging that monopoly power for Sherman Act §2 purposes could be inferred simply from the fact that D persistently charged higher prices than its rivals for years, saying nothing about margins or output restrictions.
September 8, 2025 at 8:42 AM
CoStar, 2025 WL 2573045 (9thCir) refused to dismiss a complaint alleging that monopoly power for Sherman Act §2 purposes could be inferred simply from the fact that D persistently charged higher prices than its rivals for years, saying nothing about margins or output restrictions.
Yes, it's a win for Google, but I think a win for U.S. technology and its users as well, as well as appropriate recognition by the court that messing around with market structure in a market as dynamic as this one could spell disaster.
Basically the only remedies are a ban on continuing the exclusive deals already found unlawful and a one-time obligation to share a part of Google's search-index (but not its quality rankings) with competitors.
2/2
2/2
September 2, 2025 at 10:38 PM
Yes, it's a win for Google, but I think a win for U.S. technology and its users as well, as well as appropriate recognition by the court that messing around with market structure in a market as dynamic as this one could spell disaster.
The BrwnShoe factors for antitrust market definition can send judges to insane lengths to twist them. See Harley-Davidson, 2025 WL 2374859 (dissenter would find relevant market by interpreting BShoe's "unique production facilities" factor to mean "American made.").
August 17, 2025 at 4:58 PM
The BrwnShoe factors for antitrust market definition can send judges to insane lengths to twist them. See Harley-Davidson, 2025 WL 2374859 (dissenter would find relevant market by interpreting BShoe's "unique production facilities" factor to mean "American made.").
In Gibson the 9th Cir problematically rejected an antitrust claim that the “hub” in a hub-and-spoke conspiracy provided hoteliers with nonpublic price information and the hoteliers (“spokes”) agreed to “abide by” its pricing algorithm’s recommendations. cdn.ca9.uscourts.gov/datastore/op...
cdn.ca9.uscourts.gov
August 15, 2025 at 10:04 PM
In Gibson the 9th Cir problematically rejected an antitrust claim that the “hub” in a hub-and-spoke conspiracy provided hoteliers with nonpublic price information and the hoteliers (“spokes”) agreed to “abide by” its pricing algorithm’s recommendations. cdn.ca9.uscourts.gov/datastore/op...
Promarket has published my paper on the Epic Games antitrust suits against Apple and Google Play, and their implications for the government’s own pending lawsuit against Apple, including some observations about market definition and remedies. www.promarket.org/2025/08/12/w...
What Do the Epic Games’ Lawsuits Against Apple and Google Say About the DOJ’s Apple Case? - ProMarket
Herbert Hovenkamp reviews Epic Games’ lawsuits against Apple and Google for restraining users’ ability to access Epic’s offerings through third-party app stores. A comparison of the two ecosystems she...
www.promarket.org
August 12, 2025 at 11:08 AM
Promarket has published my paper on the Epic Games antitrust suits against Apple and Google Play, and their implications for the government’s own pending lawsuit against Apple, including some observations about market definition and remedies. www.promarket.org/2025/08/12/w...
In Papa John's the court provisionally certified a class action of franchise food employees subject to a no-poach agreement; the court assumed that it was unlawful per se. Papa John's Employee and Franchisee Antitrust Litig., 2025 WL 225564 (WDKy. 8-7-2025).
August 8, 2025 at 9:22 AM
In Papa John's the court provisionally certified a class action of franchise food employees subject to a no-poach agreement; the court assumed that it was unlawful per se. Papa John's Employee and Franchisee Antitrust Litig., 2025 WL 225564 (WDKy. 8-7-2025).
all true and maybe here too. Do you agree that the chances of SCT review on the market definition issue are extremely slim?
Nested markets are fine if the facts support both. I could imagine, for example, markets for colas, all soft drinks, and all beverages. If all satisfy the hypothetical monopolist test, conduct that harms competition in any one of them (or more than one) would presumably violate the antitrust laws.
August 3, 2025 at 5:50 PM
all true and maybe here too. Do you agree that the chances of SCT review on the market definition issue are extremely slim?
In the Google Play case they court rested on the jury's finding of an "Android-only" relevant market. The earlier case challenging the same conduct by Apple found a market for "mobile game transactions" that included both Android and Apple. Can both of them be correct?
August 3, 2025 at 4:06 PM
In the Google Play case they court rested on the jury's finding of an "Android-only" relevant market. The earlier case challenging the same conduct by Apple found a market for "mobile game transactions" that included both Android and Apple. Can both of them be correct?
Does AI support anticompetitive leveraging strategies? See Erik Hovenkamp's short and accessible paper: "spread of AI is likely to increase the prevalence and complexity of leveraging strategies in digital markets. This poses a challenge to antitrust." papers.ssrn.com/sol3/papers....
AI and Leveraging Strategies: Implications for Antitrust
In product markets that rely heavily on artificial intelligence (AI), firms both use data and generate data. For a multiproduct firm, the data generated by one
papers.ssrn.com
August 2, 2025 at 10:37 AM
Does AI support anticompetitive leveraging strategies? See Erik Hovenkamp's short and accessible paper: "spread of AI is likely to increase the prevalence and complexity of leveraging strategies in digital markets. This poses a challenge to antitrust." papers.ssrn.com/sol3/papers....
EpicGames decision is a good example of a secondary refusal to deal, which should be treated more like tying rather than refusal to deal, where liability is hard to get. The "tie" is not reachable classically, because there is no agreement; instead, it is created by code.
August 1, 2025 at 10:31 AM
EpicGames decision is a good example of a secondary refusal to deal, which should be treated more like tying rather than refusal to deal, where liability is hard to get. The "tie" is not reachable classically, because there is no agreement; instead, it is created by code.
In Brantmeier v. NCAA, 2025 WL 2108638(MDNC July 29, 2025) the court certified an injunction and a damages class [23(b)(2) & (3)] of collegiate tennis players objecting to an NCAA rule limiting their participation (and compensation) in non-NCAA tennis tournaments and activities.
July 30, 2025 at 8:39 AM
In Brantmeier v. NCAA, 2025 WL 2108638(MDNC July 29, 2025) the court certified an injunction and a damages class [23(b)(2) & (3)] of collegiate tennis players objecting to an NCAA rule limiting their participation (and compensation) in non-NCAA tennis tournaments and activities.
In Quinton v. Amex, 2025 WL 1994848 (EDNY 7-7-2025) the court admitted testimony that Amex's anti-steering rule was unlawful "cross-subsidization" -- a rare case permitting theory that a pure wealth transfer from poorer to wealthier customers could be an antitrust violation.
July 19, 2025 at 8:13 AM
In Quinton v. Amex, 2025 WL 1994848 (EDNY 7-7-2025) the court admitted testimony that Amex's anti-steering rule was unlawful "cross-subsidization" -- a rare case permitting theory that a pure wealth transfer from poorer to wealthier customers could be an antitrust violation.
My new piece in Network L.Rev. A trivial % of mergers are motivated by price. Nearly all are efforts to improve production by scale or uniting complements. So a merger “efficiency defense” is wrongheaded, and the Supreme Court has not embraced it. www.networklawreview.org/hovenkamp-ef...
The U.S. Supreme Court and the Merger Efficiency “Defense” - Network Law Review
Firms’ principal motives for merging are not to increase market power, but rather to improve firm outcomes through changes in internal operations or structure. Of the 17000+ mergers that occur annuall...
www.networklawreview.org
July 14, 2025 at 8:39 AM
My new piece in Network L.Rev. A trivial % of mergers are motivated by price. Nearly all are efforts to improve production by scale or uniting complements. So a merger “efficiency defense” is wrongheaded, and the Supreme Court has not embraced it. www.networklawreview.org/hovenkamp-ef...
Christopher Leslie has published a very interesting article on how antitrust can pursue tacit (implicit) collusion more effectively, especially in concentrated markets. Leslie, Antitrust's Interdependence Paradox, 111 Va. L. Rev. 787 (2025), virginialawreview.org/articles/ant...
Antitrust’s Interdependence Paradox - Virginia Law Review
Introduction Price-fixing conspiracies are the “supreme evil” that Congress intended antitrust laws to deter and to punish.1 1.See Verizon Commc’ns, Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S...
virginialawreview.org
July 4, 2025 at 9:48 AM
Christopher Leslie has published a very interesting article on how antitrust can pursue tacit (implicit) collusion more effectively, especially in concentrated markets. Leslie, Antitrust's Interdependence Paradox, 111 Va. L. Rev. 787 (2025), virginialawreview.org/articles/ant...
An interesting cert. petition in the SAP vs Teradata case asks the Supreme Court to get rid of the per se rule for tying arrangements -- well timed given the status of some big tech cases. SAP SE v. Teradata, 2025 WL 1810683 (2025). The lower court: 124 F.4th 555 (9th Cir 2025)
July 4, 2025 at 9:45 AM
An interesting cert. petition in the SAP vs Teradata case asks the Supreme Court to get rid of the per se rule for tying arrangements -- well timed given the status of some big tech cases. SAP SE v. Teradata, 2025 WL 1810683 (2025). The lower court: 124 F.4th 555 (9th Cir 2025)