ComCom says no - again - to Microsoft complaint

The Commerce Commission has rejected a Fair Trading Act complaint laid against Microsoft by an Auckland law firm, which earlier accused it of anti-competitive behaviour under the Commerce Act.

The Commerce Commission has rejected a Fair Trading Act complaint laid against Microsoft by an Auckland law firm, which earlier accused it of anti-competitive behaviour under the Commerce Act.

Infraserv, a division of law firm Clendon Feeney, laid the complaint alleging a fair trading breach in June.

It related to an electronic brochure issued by Microsoft to software dealers entitled “Licensing Programs Change After July 31: Understand Your Options”.

The brochure said if customers bought an Upgrade Advantage licence before July 31 they were guaranteed the right to upgrade to the current version of the product as well as rights to the forthcoming version at no additional charge.

Clendon Feeney alleged that the brochure breached section nine of the Fair Trading Act, which deals with misleading conduct.

Partner Craig Horrocks said it was misleading to say customers were guaranteed rights to forthcoming products and that the brochure may not have accurately summarised the actual contractual provisions in Microsoft’s Licensing 6.0.

After looking at the matter for five months, the Commerce Commission decided not to investigate the complaint any further. Commission spokeswoman Gail Kernhoven says there was no evidence that the act had been breached.

Horrocks says he wasn’t informed of the decision. He says the process of investigation seems to be to ask Microsoft what it thinks.

This was the second complaint by the law firm that has been rejected by the commission. The first, laid in March, asked it to investigate Microsoft on the grounds that its conduct demonstrated a major market problem and disregarded section 37 of the Commerce Act. It was spurred by the introduction of the company’s Software Assurance licensing scheme.

In June the commission decided not to take the case any further, saying although it could be argued that Microsoft has a substantial degree of market power in the operating system market, Software Assurance didn’t prevent other vendors from operating in the market.

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