1. A seller’s agreement to sell one product or service only if the buyer also buys a different product or service. • The product or service that the buyer wants to buy is known as the tying product or tying service; the different product or service that the seller insists on selling is known as the tied product or tied service. Tying arrangements may be illegal under the Sherman or Clayton Act if their effect is too anticompetitive. [Cases: Monopolies 17.5(2). C.J.S. Monopolies §§ 100, 102.]
“The courts have developed an easily articulated text for so-called per se illegal tying arrangements, although the test varies from one circuit court to another…. In operation, the tests are similar, and the three-part test combines elements that are separated in the tests of other circuits. For purpose of analysis we use this five-part test: (1) There must be separate tying and tied products; (2) there must be ‘evidence of actual coercion by the seller that in fact forced the buyer to accept the tied product …’; (3) the seller must possess ‘sufficient economic power in the tying product market to coerce purchaser acceptance of the tied product …’; (4) there must be ‘anticompetitive effects in the tied market …’; and (5) there must be ‘involvement of a “not insubstantial” amount of interstate commerce in the tied product market ….’ ” Herbert Hovenkamp, Federal Antitrust Policy 392 (2d ed. 1999) (quoting Yentsch v. Texaco, Inc., 630 F.2d 46, 56, 57 (2d Cir. 1980)).
2. A seller’s refusal to sell one product or service unless the buyer also buys a different product or service.
— Also termed tying agreement; tie-in; tie-in arrangement. Cf. RECIPROCAL DEALING.
