California Civil Jury Instructions (CACI)
3422. Tying - "Separate Products" Explained
In deciding whether [tying product or service] and [tied product or service] are separate and distinct, you should consider, among other factors, the following:
(a) Whether competitors offer to sell [tied product or service] separately from [tying product or service] or only as a unit;
(b) Whether the combined product is composed of varying assortments of component parts;
(c) Whether buyers are or can be charged separately for the [products/services]; and
(d) Whether [name of defendant] ever sells or offers to sell [tied product or service] separate from [tying product or service].
Not all of these factors need be present in order for you to conclude that [tying product or service] and [tied product or service] are separate and distinct [products or services, etc.].
Directions for Use
If an example is thought to be in order, users may wish to consider the following:
For example, even though belt buckles are sometimes sold separately from belts, a belt buckle is normally considered a component of a belt. Therefore, a belt and buckle would normally be considered one product under the law in this case. On the other hand, while belts and wallets are sometimes packaged and sold together, they are not normally considered components of a single product and are normally purchased separately. Therefore, belts and wallets would normally be considered two separate products under the law in this case.
Sources and Authority
"Although we have not found . . . any definitive test for the determination of this question, the following factors should be taken into account: (1) Whether competitors offer to sell the products or ervices separately or only as a unit. (2) Whether the combined product or service is composed of varying assortments of component parts. (3) Whether buyers are or can be charged separately for the allegedly separate products or services. (4) Whether the defendant ever sells or offers to sell the products or services separately." (Corwin v. Los Angeles Newspaper Service Bur. (1971) 4 Cal.3d 842, 858-859 [94 Cal.Rptr. 785, 484 P.2d 953], internal citations omitted.)
1 Witkin, Summary of California Law (9th ed. 1987) Contracts, §§ 575- 590
2 Antitrust and Trade Regulation Law Section, State Bar of California, California Antitrust Law (2d ed. 2001), § 10.06A
6 Antitrust Laws & Trade Regulation, Ch. 105, California, § 105.04 (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts, § 40.168 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition (Matthew Bender)
(New September 2003)