Grey market

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"Dark market" redirects here. For the Internet forum, see DarkMarket.

A grey market (sometimes called a parallel market,[1] but this can also mean other things;[2] not to be confused with a black market or a grey economy) is the trade of a commodity through distribution channels which, while legal, are unofficial, unauthorized, or unintended by the original manufacturer. The most common type of grey market is the sale of imported goods (brought by small import companies or individuals not authorized by the manufacturer) which would otherwise be more expensive in the country to which they are being imported. For example, importing and selling Apple products in countries such as South Korea[3] where official Apple retail stores aren't present and licensed reseller markups are high.

The term grey economy however refers to workers being paid under the table, without paying income taxes or contributing to such public services.[4] It is also referred to as the "underground economy", "hidden economy", or "informal economy".

The two main types of grey markets are those of imported manufactured goods that would normally be unavailable or more expensive in a certain country and unissued securities that are not yet traded in official markets. Sometimes the term dark market is used to describe secretive, unregulated (though often technically legal) trading in commodity futures, notably crude oil in 2008.[5] This can be considered a third type of "grey market" since it is legal, yet unregulated, and probably not intended or explicitly authorized by oil producers.

Description[edit]

Grey market goods refer to "legal goods" which are sold outside normal distribution channels by companies which may have no relationship with the producer of the goods. Frequently this form of parallel import occurs when the price of an item is significantly higher in one country than another. This situation commonly occurs with electronic equipment such as cameras. Entrepreneurs buy the product where it is available cheaply, often at retail but sometimes at wholesale, and import it legally to the target market. They then sell it at a price high enough to provide a profit but under the normal market price. International efforts to promote free trade, including reduced tariffs and harmonized national standards, facilitate this form of arbitrage whenever manufacturers attempt to preserve highly disparate pricing. Because of the nature of grey markets, it is difficult or impossible to track the precise numbers of grey market sales. Grey market goods are often new, but some grey market goods are used goods. A market in used goods is sometimes nicknamed a green market

Importing certain legally restricted items such as prescription drugs or firearms would be categorized as black market, as would smuggling the goods into the target country to avoid import duties. A related concept is bootlegging, the smuggling or transport of highly regulated goods, especially alcoholic beverages. The term "bootlegging" is also often applied to the production or distribution of counterfeit or otherwise infringing goods. Grey markets can sometimes develop for select video game consoles and titles whose demand temporarily outstrips supply and the local shops run out of stock, this happens especially during the holiday season. Other popular items, such as dolls, can also be affected. In such situations, the grey market price may be considerably higher than the manufacturer's suggested retail price. Online auction sites such as eBay have contributed to the emergence of the video-game grey market.

Responses[edit]

The parties most concerned with the grey market are usually the authorized agents or importers, or the retailers of the item in the target market. Often this is the national subsidiary of the manufacturer, or a related company. In response to the resultant damage to their profits and reputation, manufacturers and their official distribution chain will often seek to restrict the grey market. Such responses can breach competition law, particularly in the European Union. Manufacturers or their licensees often seek to enforce trademark or other intellectual-property laws against the grey market. Such rights may be exercised against the import, sale and/or advertisement of grey imports. In 2002, Levi Strauss, after a 4-year legal case, prevented the UK supermarket Tesco from selling grey market jeans.[6][7] However, such rights can be limited. Examples of such limitations include the first-sale doctrine in the United States and the doctrine of the exhaustion of rights in the European Union.

When grey-market products are advertised on Google, eBay or other legitimate web sites, it is possible to petition for removal of any advertisements that violate trademark or copyright laws. This can be done directly, without the involvement of legal professionals. For example, eBay will remove listings of such products even in countries where their purchase and use is not against the law. Manufacturers may refuse to supply distributors and retailers (and with commercial products, customers) that trade in grey market goods. They may also more broadly limit supplies in markets where prices are low. Manufacturers may refuse to honor the warranty of an item purchased from grey market sources, on the grounds that the higher price on the non-grey market reflects a higher level of service even though the manufacturer does of course control their own prices to distributors. Alternatively, they may provide the warranty service only from the manufacturer's subsidiary in the intended country of import, not the diverted third country where the grey-market goods are ultimately sold by the distributor or retailer. This response to the grey market is especially evident in electronics goods. Local laws (or customer demand) concerning distribution and packaging (for example, the language on labels, units of measurement, and nutritional disclosure on foodstuffs) can be brought into play, as can national standards certifications for certain goods.

Manufacturers may give the same item different model numbers in different countries, even though the functions of the item are identical, so that they can identify grey imports. Manufacturers can also use supplier codes to enable similar tracing of grey imports. Parallel market importers often decode the product in order to avoid the identification of the supplier. In the United States, courts have ruled decoding is legal, however manufacturers and brand owners may have rights if they can prove that the decoding has materially altered the product where certain trademarks have been defaced or the decoding has removed the ability of the manufacturer from enforcing quality-control measures. For example, if the decoding defaces the logo of the product or brand or if the batch code is removed preventing the manufacturer from re-calling defective batches.

The development of DVD region codes, and equivalent regional-lockout techniques in other media, are examples of technological features designed to limit the flow of goods between national markets, effectively fighting the grey market that would otherwise develop. This enables movie studios and other content creators to charge more for the same product in one market than in another, or alternatively withhold the product from some markets for a particular time. Consumer advocacy groups argue that this discrimination against consumers—the charging of higher prices on the same object simply because of where they happen to live—is unjust and anti-competitive. Since it requires governments to legislate to prevent their citizens from purchasing goods at cheaper prices from other markets, and because this is clearly not in their citizens' interests, many governments in democratic countries have chosen not to protect anti-competitive technologies such as DVD region-coding.

Goods[edit]

Automobiles[edit]

Automobile manufacturers segment world markets by territory and price, thus creating a demand for grey import vehicles. In the right hand drive United Kingdom the term applies to vehicles imported either new from cheaper European countries or from Japanese domestic models imported secondhand from right hand drive Japan or Singapore, which both have strict laws against older cars. The Japanese "Shaken" road-worthiness testing regime, requires progressively more expensive maintenance, involving the replacement of entire vehicle systems, that are unnecessary for safety, year on year, to devalue older cars and promote new cars on their home market that were available for low prices. There are very few cars in Japan more than five years old. This importation of secondhand models from Japan/Singapore tends to involve models, that were never released in the UK or models that fetch a high price in the UK because of their performance, novelty or status. Popular types include - off road vehicles, people carriers, affordable sports cars like the Mazda MX5 / Eunos, very high performance sports cars like the Nissan Skyline, rally homologation based cars like the Subaru Impreza and Mitsubishi Evo, ultra compact kei cars, and limited edition Japanese market designer cars like the Nissan Figaro. Although some grey imports are a bargain, some buyers have discovered that their vehicles do not meet British regulations or that parts and service are hard to come by because these cars are different from the versions sold new in the UK. Also ensuring service history and so mechanical condition can be a problem. Japanese domestic market cars also have less corrosion protection than official exports, due to their expected short design life in Japan.

In New Zealand, grey market vehicles comprise a majority of cars in the national fleet. These secondhand imports have achieved 'normal' status and are used and serviced without comment throughout society. A huge industry servicing and supplying parts for these vehicles has developed. After years of trying to stop grey imports the car companies themselves have become involved, importing in competition with their own new models and providing owners with spare part and repair services. Russia and many African countries, albeit not South Africa where second-hand car imports are illegal, import large quantities of secondhand vehicles from Japan and Singapore.

In Russia at certain moments grey imports, both new and used, comprised up to 80% of all automobile fleet, because of the domestic production being unable to meet the market demands, both in numbers and in quality, especially in the early-to-mid 90es. In the Western part of the country most of the imports were from Germany, while to the East of the Ural mountains, where the cost of delivery made both the German imports and domestic productions particularly unattractive, a thriving industry of importing used vehicles from Japan developed. Even though Russia is a left hand drive country, RHD vehicles are nevertheless legal there, providing some adjustments (like retuning the headlights) are made, but these are cheap and easily done, thus making the cheap and well-built Japanese cars, trucks and tractors (which proved to be sturdy enough to withstand severe Russian climate, bad roads, often inadequate servicing and iffy fuel/oils quite efficiently) particularly attractive to the customer. In main import points such as Vladivostok and Yuzhno-Sakhalinsk a large-scale service and aftermarket industry developed, including the parts depots, auctions and logistic centers, all geared for servicing and supporting this relentless import drive. The authorities tried to fight this phenomenon to protect the domestic industry, but the effects were so far mixed. While increasingly stringent technical requirements and stiffer ans stiffer import tariffs had some effect, they only managed to force the locals to import newer and more expensive vehicles, and to invent various paralegal ways to circumvent these regulations. Japanese manufacturers themselves also stepped in, creating local assembly plants that produce new, left hand drive models to try to compete with the grey imports.

Broadcasting[edit]

Main article: Pirate decryption

In television and radio broadcasting, grey markets primarily exist in relation to satellite radio and satellite television delivery. The most common form is companies reselling the equipment and services of a provider not licensed to operate in the market. For instance, a Canadian consumer who wants access to American television and radio services that are not available in Canada may approach a grey market reseller of Dish Network or DirecTV. There is also a grey market in the United States for Canadian satellite services such as Bell TV or Shaw Direct.

In Europe some satellite TV services are encrypted since they have only been authorised by content suppliers to broadcast films, sporting events and US entertainment programming in a certain country or countries, hence only residents of the UK and Ireland may subscribe to Sky Digital. In other European countries with large British expatriate populations, such as Spain, Sky is widely available through the grey market. Although Sky discourages the use of its viewing cards outside the UK or Ireland, and has the technology to render them invalid, many people continue to use them.

Parallel importing of "free-to-view" Sky cards from the UK to Ireland is often done so that Irish Sky customers can receive Channel 5 and some of the other channels not generally available via Sky in the Republic because of trademark and other licensing issues. Conversely, Sky viewing cards from the Republic of Ireland, which allow viewing of Irish terrestrial channels, are imported into the UK. Northern Ireland residents subscribing to Sky can watch RTÉ One and Two and TG4, although not TV3, which carries many of the same programmes as ITV, a lot of the programmes airing before ITV can show them.

It is also becoming increasingly common in the UK for some pubs to use satellite decoder cards from Greece, Norway, Poland or the Arab world to receive satellite TV broadcasting live English football matches from those countries. Alternatively, they may use cards which allow pirate decryption of scrambled signals. Such cards are typically much cheaper than the cards available in the UK from Sky (who charge extra fees for public showing licenses). However, Sky has taken civil and criminal action against some who do this. Two recent cases involving grey cards have been referred to the European Court of Justice.[8][9] The suppliers of grey cards and Karen Murphy have won their cases at the European Court of Justice. The judges have ruled that right holders cannot license their content on an exclusive territorial basis as it breaches EU Law on competition and free movement of goods and services. However, whilst this ruling allows domestic viewers to subscribe to foreign satellite services, pubs may still need permission from right holders such as the Premier League to broadcast content. This is because certain elements of the broadcast such as branding are copyrighted. The matter now rests on the High Court to incorporate the ruling into UK Law. C-403/08 - 2011-10-04 - Football Association Premier League and Others

There have been two High Court judgements on this matter now. Mr. Justice Kitchin has ruled that QC Leisure and other suppliers of foreign satellite systems can carry on with their businesses if they can prevent copyright elements such as branding of football matches from being shown in a public place. The Premier League can pursue prosecutions of licensees who show branding of matches via foreign satellite systems. Karen Murphy has won her case in the High Court following the ruling from the ruling from the European Court of Justice. The ruling from Justice Stanley Burnton allows Ms Murphy to shop for the cheapest foreign satellite provider. However the ruling from Justice Kitchin prevents Ms Murphy from showing matches in her pub via foreign satellite systems because branding are copyrighted. It is no longer illegal though for a customer to purchase a foreign viewing card from an EU country and use it outside the territory.

Cell phones[edit]

The emergence of the GSM international standard for cell phones in 1990 prompted the beginning of the grey market in the cell phone industry. As global demand for mobile phones grew, so did the size of the parallel market. Today, it is estimated that over 30% of all mobile phones traded will pass through the grey market and that statistic continues to grow. It is impossible to quantify an exact figure, but sources[10] suggest that as many as 500,000 mobile phones are bought and sold outside of official distribution channels through their trading platforms every day. The driving forces behind a heavily active mobile phone grey market include currency fluctuations, customers demands, manufacturers policies and price variations. It is not uncommon for grey market traders to introduce a product into a market months in advance of the official launch. This was evident with the launch of the iPhone 4, where international grey market traders bought large quantities at Apple’s retail price then shipped to countries where the product was not available adding a substantial margin to the resale price.

Computer games[edit]

Purchasing some games from online content distribution systems, such as Valve's Steam, simply requires entering a valid CD key to associate with an account. In 2007, after the release of The Orange Box, Valve deactivated accounts with CD keys that were purchased outside of the consumer's territory in order to maintain the integrity of region-specific licensing. This generated complaints from North American customers who had circumvented their Steam end-user license agreement by purchasing The Orange Box through cheaper, market retailers.[11][12]

Due to regional lockout, videogame consoles and their games are often subjected to grey market trade and are chosen as the alternative to modding by some gamers. The reasons for this may range from the console being crippled in some markets to that of the desired game not being released for the market the potential consumer of the game is in.

Electronics[edit]

There is a grey market in electronics in which retailers import merchandise from regions where the prices are cheaper or where regional design differences are more favourable to consumers, and subsequently sell merchandise in regions where the manufacturer's selling price is more expensive. Online retailers are often able to exploit pricing disparages in various countries by utilising grey-market imports from regions where the product is sold at lower costs and reselling them without regional buyer restrictions. Websites such as Taobao and Amazon.com enable customers to buy products designed for foreign regions with different features or at cheaper costs, utilising parallel importation.

Frequent-flyer miles[edit]

Trade or bartering of frequent-flyer miles is prohibited by nearly all major airlines, although an authorized medium exists for specific frequent flyer programs.[13] Unauthorized exchanges of frequent flyer miles – of which several exist – are also major examples of grey markets.

Infant formula[edit]

Milk powder runners queuing outside Sheung Shui Station.

Following the 2008 Chinese milk scandal parents in China lost confidence in locally produced infant formula, creating a demand for European, Japanese and United States produced formula. Import restrictions on formula from these sources, has led to parents willing to pay a premium for foreign brands leading to the emergence of milk powder runners, who buy formula at ticket price over the counter in Hong Kong, carry the tins over the border to Shenzhen before returning to Hong Kong to repeat the process. The effect of the runners led to a shortage of infant formula in Hong Kong forcing the government to impose an export restriction of two tins per person per trip.[14] The effect of the Hong Kong government restrictions, has in turn led to shortages in Australia[15] and for milk formula producers to ask retailers in the United Kingdom to restrict purchasers to two tins, as there was evidence that milk formula is being purchased for onward shipment to China.[16]

Pharmaceuticals[edit]

Some prescription medications, most notably popular and branded drugs, can have very high prices in comparison to their cost of transport. In addition, pharmaceutical prices can vary significantly between countries, particularly as a result of government intervention in prices. As a consequence, the grey market for pharmaceuticals flourishes, particularly in Europe and along the US–Canadian border where Canadians often pay significantly lower prices for US made pharmaceuticals than Americans do.

Photographic equipment[edit]

Generally regarded as legal in most countries, parallel imports make expensive photographic equipment attractive to savvy users. The grey market in photographic equipment is thriving in highly developed and heavily taxed states like Singapore with dealers importing directly from lower taxed states and selling at a lower price, creating competition against a local authorised distributor. Grey sets, as colloquially called, are often comparable to authorised imports. Lenses or flash units of parallel imports often only differ by the warranty provided, and since the grey sets were manufactured for another state, photographic equipment manufacturers often offer local warranty, instead of international warranty, which will render grey sets ineligible for warranty claims with the manufacturer. Because of the nature of local warranties, importers of grey sets usually offer their own warranty schemes with reduced benefits or lasting a shorter period of time. Grey sets do not differ particularly from an authorised import. They look and function identically. In the salad days of camera sales during the 60s and 70s, when lenses had amber coating, the bargain basements for Japanese equipment were Hong Kong and Singapore, through which goods were channelled to European shop windows bypassing the often substantial levy of the official importers. World-market pricing and the Internet have largely eliminated this. Canon gives their hard-selling DSLR cameras names like "Rebel" in the USA and "EOS xx0/xx00" outside it, aimed at preventing the competitively priced US-merchandise reaching Europe where sales are slower but achieve a higher profit.

Snus[edit]

Snus tobacco remains legal in Sweden and Norway due to a special agreement, but illegal elsewhere in Europe. Import for personal consumption is legal, but import for resale is illegal, although often practiced.[citation needed]

Stock market securities[edit]

Public company securities that are not listed, traded or quoted on any U.S. stock exchange or the OTC markets are sometimes purchased or sold over the counter (OTC) via the grey market. Grey market securities have no market makers quoting the stock. Since grey market securities are not traded or quoted on an exchange or interdealer quotation system, investors' bids and offers are not collected in a central spot so market transparency is diminished and effective execution of orders is difficult.[17]

Textbooks[edit]

College level textbooks have a grey market, with publishers offering them for lower prices in developing countries or sometimes the UK.[18]

The content of these books is said to differ from the content needed for universities in North America.[citation needed] The content is usually 98% identical to what is taught in different areas of the world.[citation needed] Most commonly the units of measure, spelling of certain words and/or grammar is that of the region it was intended for. Sometimes the editions are not the newest, sometimes the printing quality is not the best,[19] and the books often come in soft-cover only.

For example, a US$160 math, chemistry, or biology book for sale in Canada, the United States, or the United Kingdom could easily be acquired for 10 to 20% of the cost in Asia. The content is identical, the only discernible differences being thinner pages and a soft cover. Most textbooks are absolutely identical except for the quality of the paper and binding, though this has been greatly improved in India by the import of modern manufacturing equipment. Indian booksellers, however, are unwilling to fulfill foreign purchase orders, which means that a local individual is needed to buy the books and ship them.[citation needed] Alternatively, there are grey market sellers[which?] on the Internet offering such books.

These books typically contain a disclaimer stating that importation is not permitted. However, the U.S. Supreme Court decisions Quality King v. L'anza (1998) and especially Kirtsaeng v. John Wiley & Sons, Inc. (2013, involving textbooks imported from Thailand by an eBay seller) protect the importation of copyrighted materials under the first-sale doctrine.

See also[edit]

References[edit]

  1. ^ What is the parallel market? (archived).
  2. ^ http://onelook.com/?w=parallel+market&ls=a
  3. ^ "Are There Apple Stores in Korea?"
  4. ^ "Hidden economy a hidden danger" San Diego Union-Tribune, May 30, 2010
  5. ^ Victory: "Close the ENRON Loophole" Bill is Small Step In Right Direction[dead link]
  6. ^ http://news.bbc.co.uk/1/hi/business/2163561.stm Tesco defeated in cheap jeans battle; Case T-415/99 Levi Strauss v Tesco Stores
  7. ^ "InfoCuria". Curia.europa.eu. 2001-11-20. Retrieved 2012-01-27. 
  8. ^ http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&numaff=C-403%2F08 Case C-403/08 The Football Association Premier League Ltd v QC Leisure
  9. ^ http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&numaff=C-429%2F08 Case C-429/08 Karen Murphy v Media Protection Services Ltd
  10. ^ "www.gsmexchange.com". www.gsmexchange.com. 2012-01-12. Retrieved 2012-01-27. 
  11. ^ "Steam Error: Game not available in your territory". Valve Corporation. 2007-10-23. Retrieved 2008-03-24. 
  12. ^ Caron, Frank (2007-10-25). "Valve locking out user accounts for "incorrect territory"". Ars Technica. Retrieved 2007-10-25. 
  13. ^ "Points.com". Points International Ltd. Retrieved 23 July 2012. 
  14. ^ Import and Export (General)(Amendment) Regulation 2013 ( with effect from 1 March 2013 ) - Quantity of Powdered Formula for Persons Departing from Hong Kong
  15. ^ "Chinese buyers trigger Australian baby milk run". South China Morning Post. January 13, 2013. Retrieved April 4, 2013. 
  16. ^ Hui, Sylvia (April 3, 2013). "Chinese demand for baby milk causes 'ration' in UK". Associated Press. Retrieved April 4, 2013. 
  17. ^ "Explanation of grey market securities". Otcmarkets.com. Retrieved 2012-01-27. 
  18. ^ Lewin, Tamar (2003-10-21). "Students Find $100 Textbooks Cost $50, Purchased Overseas". The New York Times. Retrieved 2010-05-04. 
  19. ^ Oppenheimer, Schaefer, Buck: Discrete-Time Signal Processing. Second Edition. ISBN 0-13-754920-2. This edition is manufactured in India and is authorized for sale only in India, Bangladesh, Bhutan, Pakistan, Nepal, Sri Lanka and the Maldives, Circulation of this edition outside of these territories is UNAUTHORIZED.
  • Hays, Thomas (2003). Parallel Importation Under European Union Law (hardcover). Sweet & Maxwell. p. 488. ISBN 0-421-86300-5. 
  • Nissanoff, Daniel (2006). FutureShop : How the New Auction Culture Will Revolutionize the Way We Buy, Sell and Get the Things We Really Want (hardcover). The Penguin Press. p. 246. ISBN 1-59420-077-7. 
  • Stothers, Christopher (2007). Parallel Trade in Europe : Intellectual Property, Competition and Regulatory Law (hardcover). Hart Publishing. p. 526. ISBN 1-84113-437-6. 
  • Michael Levy, Barton A. Weitz (1995). Retailing Management Second Edition (hardcover). IRWIN. p. 700. ISBN 0-256-13661-0. 
  • David Sugden (2009). Gray Markets: Prevention, Detection & Litigation (paperback). Oxford Press. p. 360. ISBN 978-0195371291. 

External links[edit]