WHAT WE DO
We advise clients on a full spectrum of competition law issues including reviewing potentially anti-competitive agreements, dominance and practices, competition audit of business practices and arrangements, formulating and conducting compliance
We advise market players in automotive components, information technology (IT), healthcare, bio-technology, pharmaceuticals, retail, transport, infrastructure, media etc. on both regulatory and compliance issues.
Cartel enquires and related litigation
Review and Analysis of commercial agreements, licensing and distribution arrangements
Analyse competition law issues vis a vis intellectual property rights
Merger control advice and filings
Abuse of dominance investigations
Consultancy for anti-trust risk management
March , 2020
Grasim abused its dominant position in market for supply of ‘Staple Fibre’ to spinners in India
COMPETITION LAW : Where information was filed by informant against OPs i.e., Association of ManMade Fibre (MMF) Industry of India and Grasim alleging that OP was sole producer of Viscose Staple Fibre (VSF) having a market share of almost 100 per cent in India and was misusing its sole position in domestic market to squeeze textile industry consumers, it was held that OP had abused its dominant position in relevant market of 'market for supply of VSF to spinners in India' by charging discriminatory prices to its customers besides imposing supplementary obligations upon them in violation of provisions of section 4 and OP was directed to cease and desist from indulging in such practices which had been found to be in contravention of provisions of Act
COMPETITION COMMISSION OF INDIA, Case Number 62 of 2016, Order pronounced on 16-03-2020
GMR abused dominance by refusing to renew license of informant co. for line maintaining service at Hyderabad airport
COMPETITION COMMISSION OF INDIA, Air Works India (Engineering) (P.) Ltd. v. GMR Hyderabad International Airport Ltd.
Section 4 of the Competition Act, 2002 - Prohibition of abuse of dominant position - OP had exclusive right to maintain and develop Hyderabad International Airport (RGIA) - It executed a license agreement with informant company to provide Line Maintenance Services at RGIA - Informant had alleged that OP, being dominant player in upstream market i.e. market for provisions of access to airport facilities/premises at RGIA, had abused its dominant position - According to informant, OP refused to renew its license with an intent to give advantage to its group company 'GAT' - It was noted that at time of filing of information, informant and 'GAT' were directly competing with each other in downstream market, i.e. market for provision of line maintenance service at RGIA - Thus, if informant was excluded, its existing as well as potential customers would be required to avail services from an alternative service provider operating in downstream market i.e. 'GAT' - In such a situation, entity providing line maintenance services in downstream market would directly be same as one dominant in upstream market, being part of group - Thus, there would neither be any effective competitive constraint nor any regulatory constraint to put a check in respect of either price or quality of services in downstream market - Whether in view of aforesaid, prima facie case of contravention of section 4 was made out against OP - Held, yes
CCI imposes penalty on OPs for colluding with each other in a tender process to pre-determine its outcome (Nagrik Chetna Manch v. SAAR IT Resources (P.) Ltd.CASE NO. 12 OF 2017, Competition Commission of India)
CCI penalises Jalgaon District Medicine Dealers Association for demanding of 'Product information charge' prior to launch of new drugs in mark
Nadie Jauhri vs Jalgaon District Medicine Dealers Association (JDMDA)
Where Jalgaon District Medicine Dealers Association (JDMDA) demanded Product Information Charge charges prior to launching of new drugs in market, their conduct was anti-competitive, hence penalty was to be imposed
Amending method of calculating premium by reinsurer wouldn't amount to abuse of dominant position: CCI
Indian Chemical Council v. General Insurance Corporation of India
"Where circular issued by OP-Indian reinsurer notifying certain amendments to method of calculating premium neither prevent a general insurance companies to offer premium at lowest rates to policy holder nor did it prevent general insurance companies from opting for an alternate reinsurance company, other than OP, no case of contravention of section 4 was made out against OP"
Non-supply of products by co. on account of inability to produce NOC is an anti-competitive practice
Non-supply of pharmaceutical products by pharmaceutical companies to stockists on account of inability to produce NoC/LoC from State and regional chemists and druggist associations was anti-competitive in terms of section 3(1)
May 10, 2019
M/s. Rajasthan Cylinders & Containers Ltd. vs. Competition Commission of India - Delhi High Court.
The Delhi High Court upheld interpretation favored by the Competition Commission of India for initiating criminal action
The High Court Judgment: The High Court accepted a wide interpretation of Section 42 (3) of the Competition Act, 2002 on the ground that the sub-section does not limit its scope only to the directions issued by the Commission.
The High Court has held that criminal complaint can be filed in two possible situations:
(a) there has been a failure on the part of a person to "comply with the orders or directions" issued to him under the law, or
(b) on account of failure to pay fine imposed for non-compliance with orders or directions of the Commission under specified provisions (i.e., Sections 27, 28, 31, 32, 33, 42A and 43A), the Commission, after inquiry, having found absence of "reasonable cause"
The High Court further held that the words "orders" and "directions" in the first limb of section 42(3) are not to be read as qualified by reference to the failure to pay the fine imposed under Section 42(2) as appearing in the second limb of Section 42(3).
The High Court also held that sub - section (3) does not mention "Commission", and that non - compliance of the "orders or directions issued" under the law, irrespective of whether they had been issued by the Commission or by Director General, can result in criminal action.
DELHI HIGH COURT DIRECTS DARVEYS.COM TO SELL GENUINE BRANDS ONLY
Delhi High Court has directed India-based e-commerce site Darveys.com to make sure that each item put up for sale on its site is genuine after a suit of trademark infringement was filed by luxury brand Christian Louboutin claiming the website was selling “impaired” or “counterfeit” goods in its name.
The main contention raised by the defendant Darveys.com in this case was that they are protected under Section 79 of the Information Technology Act, 2000, as they are ‘intermediaries’. Section 2(w) of the IT Act includes online-market places in the definition of intermediaries...
Referring to provisions of the Information Technology (Intermediaries Guidelines) Rule, 2011, the court said the guidelines would not offer protection to any ‘intermediary’ that have ‘conspired’, ‘abetted’ or ‘aided’ or ‘induced the commission’ of an unlawful act. “It cannot be argued that anyone who complies with the guidelines is automatically not conspiring, abetting, aiding or inducing commission of an unlawful act. Following the guidelines may in certain cases satisfy that the online market place is behaving as an intermediary but the same is not conclusive. What is lawful or unlawful depends on the specific statute being invoked and the Guidelines cannot be conclusive. What is lawful or unlawful depends on the specific statute being invoked and the Guidelines cannot be considered as being exhaustive in their manner of application to all statutes,” the court said...
August 24, 2018
No abuse of dominance by developer in Kolkata due to existence of other real estate developers
COMPETITION COMMISSION OF INDIA Case No. 50 of 2017,Cambridge Residents Welfare Association and others Vs Merlin Developers and others
Where in relevant market i.e. market for provision of service for development and sale of residential flats in Kolkata, there were several well established and significant developers, OP could not be said to be dominant in relevant market and thus, conduct of OP was not required to be assessed for alleged abuse within meaning of section 4
June 25, 2018
Oral-B” over “Ora-B” - P&G won the Trademark infringement Case against Unani Medicines Company
The Bombay high court restrained UP-based Unani medicine company Jamia Remedies from manufacturing and selling its mouth dusting powder under the ‘Ora-B’ brand.
P&G had earlier approached the Bombay high court against Unani medicine company, Jamia Remedies, alleging infringement of their trademark ‘Oral-B’
Procter & Gamble (P&G) had also successfully sought the court’s intervention so as to permanently stop Jamia from using or registering ‘Ora-B’ or any other similar brand in any manner. The court further said that the defendants should withdraw any trademark application for the mark ‘ORA-B’ and undertake that they shall not make any application for any trademark or copyright registration for any other mark, which is deceptively similar to the plaintiffs’ well-known mark ‘Oral-B’.
After passing the Order, Jamia Remedies, the defendant has also agreed to pay Rs. 2 lakhs as compensation to the damages caused to P&G. P&G has informed the court that the money which they will receive, will be invested for charity work.
June 07, 2018
BCCI abused its dominant position in market for organization of domestic cricket leagues in India: CCI
Where BCCI had right to sanction/approve cricket events in India ,BCCI was holding a dominant position in relevant market for organization of professional domestic cricket leagues/events in India and it had abused its dominant position by excluding informant from participating in relevant market by not recognizing Indian Cricket League (ICL )and blacklisting Informant from participating in bids for allocation of broadcast rights for IPL.
The Competition Commission has ordered a detailed investigation against the Indian cricket board BCCI for alleged abuse of dominant position with regard to running professional domestic cricket leagues in the country.
The decision has come on a complaint filed by Pan India Infraprojects Pvt Ltd (formerly known as Essel Sports Pvt Ltd).
May 03, 2018
NCLAT stays CCI’s order which penalised Google for unfair trade practices
The National Company Law Appellate Tribunal (NCLAT) has stayed an order of the Competition Commission of India (CCI) that imposed a penalty of Rs 1.36 billlion on Google for unfair business practices in online search market.
While admitting the plea of Google against the order, the NCLAT bench directed the internet major to deposit 10 per cent of the penalty amount with it in four weeks. The matter has been listed for hearing on May 28, 2018.
Earlier, in February 2018, CCI had imposed a fine on Google for unfair business practices in the Indian market for online search. Passing the order on complaints filed back in 2012, the regulator had stated that the penalty is being imposed on Google for infringing anti-trust conduct.
According to the CCI order, the penalty amount translates to about 5 per cent of the company’s average total revenue generated from India operations from its different business segments for the financial years 2013, 2014 and 2015. The ruling has come on complaints filed by Matrimony.com and Consumer Unity & Trust Society (CUTS), back in 2012, against Google LLC, Google India Private Limited and Google Ireland Limited.
April 29, 2018
No Requirement Of Mens Rea Or Intentional Breach As An Essential Element For Levy Of Penalty Under Sec. 43A Competition Act
The imposition of penalty under section 43A is on account of breach of a civil obligation, and the proceedings are neither criminal nor quasi-criminal; the penalty has to follow. Only discretion in the provision under section 43A is with respect to quantum of Penalty.
he Supreme Court, in Competition Commission of India vs. Thomas Cook (India) Ltd., has observed that the imposition of penalty under section 43A of the Competition Act is on account of breach of a civil obligation, and the proceedings being neither criminal nor quasi-criminal, there is no requirement of mens rea or intentional breach as an essential element for levy of penalty...
January 6, 2018
CCI FINES GUJARAT CHEMIST ASSOCIATION FOR LIMITING MEDICINE SUPPLY
The Competition Commission of India has fined the Chemists and Druggists Association of Baroda ('CDAB') and Federation of Gujarat State Chemists and Druggists Association ('Gujarat Federation') for limiting and controlling the supply of drugs and cosmetics which it found in violating the provisions of the Competition Act, 2002.
Investigation by the CCI found that these associations were indulging in the anti-competitive practice of insisting No Objection Certificate prior to the appointment of new stockists by pharmaceutical companies. The CCI fined these companies under Section 3 (3) (b) and Section 3 (1) of the CCI act.
CDAB, Gujarat Federation and their office bearers, have been directed to cease and desist from indulging in the aforesaid anti-competitive practice", CCI said in a statement. The anti completion body has imposed a monetary penalty of Rs. 1,08,588 and Rs. 11,11,549. This is besides the penalties of Rs. 34,048 and Rs. 62,144 on the president of these associations.
This case is yet another example of how competitive markets and fair-play in the distribution of drugs/medicines are being compromised by the persisting anti-competitive behaviour of the chemist and druggist associations at the Regional as well as State level", CCI said.
January 6, 2018
Delhi High Court Denies ‘bookmyshow’ an Interim Injunction Against ‘bookmysports’
The Delhi High Court in Bigtree Entertainment v Brain Seed Sportainment, recently denied the Plaintiffs, proprietors and owners of the website bookmyshow.com, an interim injunction against the Defendant’s use of the domain bookmysports.com.
The sole question that as considered to decline an interim injunction was whether BOOKMY, as the part of the Plaintiff’s trademark, which was being used by both parties, was descriptive or invented.
The Court’s conclusion that the term was descriptive was based on three observations –
Firstly, the Court held that the existence of domain names using the prefix BOOKMY, both prior and subsequent to the Plaintiff’s mark, indicated that the prefix was descriptive.
Secondly, the Court held that the words BOOKMY was not an arbitrary coupling of words, but rather a phase describing the particular activity that the Plaintiff and others were engaged in. The Court stated, of the prefix, that ‘it is instead an apt description of a business that is involved in the booking of a particular thing for its consumers, whether it is a concert, a movie, or a sports facility.’
Thirdly, the Court held that, because the Defendant had led evidence suggesting that the prefix BOOKMY was in use by other companies, and the Plaintiffs had not led evidence to show that BOOKMY is only associated to the Plaintiff’s trademark, the Plaintiff was unable to prove that the prefix had obtained distinctiveness or a secondary meaning, in order to accord it protection.
Accordingly, the Court dismissed the application for injunction.
December 15, 2017
Act of ‘Drug Association’ of mandating NOC as prerequisite for appointment of stockiest is anti-competitive
COMPETITION COMMISSION OF INDIA, Sudeep P.M. v. All Kerala Chemists & Druggists Association
Section 3, read with section 48, of the Competition Act, 2002 - Prohibition of agreements - Anti-competitive agreements - Informant-stockists filed information alleging that despite cease and desist orders, OP and its district level associations were mandating requirement of a No Objection Certificate (NOC) prior to appointment of any stockists and fixing of trade margin at different levels of sale of medicines in contravention of provisions of section 3 - Due to such conduct, supplies of medicines had been restricted - On investigation, DG concluded that OP had been involved in practice of grant of NOC by various means such as issue of a congratulatory letter, by way of verbal approval prior to appointment of stockists by pharmaceutical companies - OP denied allegation made by informant and finding of DG and claimed that NOC was aimed at ensuring a seamless flow of products though demand and supply chain and that NOC practice did not cause any Appreciable Adverse Effect on Competition (AAEC) in relevant market - Whether burden of proof was upon OP to show that there was no AAEC and there were efficient justification for enforcing practice of NOC for appointment of stockists - Held, yes – Whether however, no evidence was furnished by OP to prove said claim, thus, OP were not able to rebut presumption that arose against them - Held, yes - Whether practice of mandating NOC prior to appointment of stockiest resulted in limiting and controlling supply of drugs in market and amounted to an anti-competitive practice, in violation of provisions of section 3(1) read with section 3(3)(b) - Held, yes
November 10, 2017
Karnataka High Court on M/S Adiga Sweets vs M/S Vasudeva Adigas Fast Food Pvt
Karnataka High Court placed Reliance on Supreme Court judgment in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. [ AIR 2001 SC 1952] whilst dismissing the appeal of M/s. Adiga Sweets
As per the Supreme Court judgment, the following factors are to be considered for deciding upon “deceptive similarity”:
Based on the aforesaid Factors , the Court came to the following conclusions:
October 27, 2017
COMPETITION COMMISSION OF INDIA, International Air Transport Association (IATA) v. Air Cargo Agents Association Of India (ACAAI)
Where Informant trade association failed to produce any evidence to establish that OPs, i.e., association of air cargo agents, and its office bearers had taken coercive action against any of its member airlines who had agreed to participate in CASS implementation, no case of contravention of provision of section 3 was to be made out against OPs
Section 3, read with section 19, of the Competition Act, 2002 - Prohibition of agreements - Anti-competitive agreements - OP1 was National Association of air cargo agents in India - Informant was formed by operating airlines as a trade association - Informant alleged that OP1 and its office bearers were trying to create disruption in implementation of Cargo Account Settlement System (CASS) in India, through collective boycott and cartelization against informant and its constituent members - Such conduct of OPs limited supply of air cargo transportation services in India in violation of section 3 - It was an admitted fact that after introduction of CASS, there had been phenomenal increase in number of cargo agents with more airlines and agents actively participating in CASS of their own volition which indicated that there was no collective boycott on part of OPs - Further, informant had not produced any evidence to establish that OPs had taken coercive action against any of its member airlines who had agreed to participate in CASS implementation - Whether, thus, no case of contravention of provision of section 3 was to be made out against OPs - Held, yes [Para 19]
COMPETITION COMMISSION OF INDIA, V E Commercial Vehicles Ltd. v. Uttar Pradesh State Road Transport Corporation, U.P.
Presence of many State transport undertakings in market of procuring bus chassis rules out dominance of UPSRTC
Where OP-UPSRTC was one of many State transport undertakings which was procuring bus chassis from informant, TML, ALL and other manufacturers, OP was not dominant in relevant market for procurement of bus chassis in India and, therefore, no case of abuse of dominance was made out
Section 4, read with section 3, of the Competition Act, 2002 - Prohibition of abuse of dominant position - Informant was engaged in production of heavy commercial vehicles and had been a supplier to various State Transport Units - OP-UPSRTC was a public sector undertaking created under section 3 of Road Transport Act, 1959 having objective of development of road transport sector in State of Uttar Pradesh - Informant filed information against OP alleging contravention of provisions of sections 3 and 4 - It was stated that tenders floated by OP sought to exclude informant and other similarly situated manufacturers from tender in some way or other and that even if informant was lowest bidder it would only be awarded 20 per cent of tendered quantity and for balance 80 per cent of tendered quantity, informant would have to quote its rate list with Annual Maintenance Contract (AMC) while Tata Motors Ltd. ('TML') and Ashok Leyland Ltd. ('ALL') could bid for entire tender without an AMC - Informant alleged that conduct of OP in procuring said product was discriminatory and unfair and that there existed a tacit agreement amongst TML and ALL in violation of section 3 - Informant stated OP was a dominant entity in Heavy Duty Bus Category in State of Uttar Pradesh which had abused its position by granting favourable terms and conditions for TML and ALL in tenders floated - Whether since OP was one of many State transport undertakings which was procuring 'bus chassis' in varying volumes for its operation and there were many private passenger bus transport operators who were buying 'bus chassis' from TML and ALL and other manufacturers, OP was not dominant in relevant market for procurement of bus chassis in India - Held, yes - Whether in absence of dominance in relevant market, there could not be abuse of dominant position under provisions of section 4 - Held, yes - Whether since OP, TML and ALL were not engaged in identical or similar trade of goods or provision of services, which was an essential condition for applicability of section 3(3), allegation of contravention of section 3(3) read with section 3(1) did not hold ground in instant matter - Held, yes - Whether thus, no prima facie case of contravention of provisions of Act was made out against OP - Held, yes
September 22, 2017
Prasar Bharti abuses its dominant position by demanding licence fee for use of common transmission structure
COMPETITION COMMISSION OF INDIA, Clear Media (India) (P.) Ltd. v. Prasar Bharti
Section 4, read with section 3, of the Competition Act, 2002 - Prohibition of abuse of dominant position - Informant was engaged in business of providing Frequency Modulation (FM) Radio Broadcasting Services to public in various cities across country - OP-1 i.e., Prasar Bharti was a Government of India entity that provided infrastructure facility to FM radio broadcasters and OP-2 was Ministry of Information and Broadcasting - Informant filed information against OPs stating that OPs were abusing their dominant position by coercing Informant to enter into an agreement with OP-1 for use of new Common Transmission Infrastructure (CTI) even though same was yet to be erected and demanding licence fee from Informant for use of CTI at Kingsway Camp even after same had collapsed - Whether since OP-2 was a department of Government, inter alia, responsible for framing regulations/policies/guidelines for operation of FM radio broadcasters, impugned conduct of OP-2 was related to its policy making functions and did not involve any economic activity and, therefore, no case of contravention was established against OP-2 - Held, yes - Whether since extant Policy Guidelines and GOPA mandated, without exception, all private FM radio operators to co-locate their facilities with existing infrastructure of OP-1, infrastructure services provided by OP-1 to private FM radio channel operators were unique and no other organisation could provide same, and, therefore, OP-1 enjoyed dominant position in relevant market for provision of infrastructural facilities for FM radio broadcasting in Delhi - Held, yes - Whether since OP-1 had asked for license fee, for two years from informant for use of CTI located at Kingsway camp despite same having collapsed, such behaviour of OP-1 without providing any service appeared to be abuse of dominant position, in contravention of section 4(2)(a)(ii) - Held, yes - Whether impugned terms of New CTI Agreement were also discriminatory in so far as same required privated FM radio broadcasters to bear CTI cost of radio channels operated by OP-1 and, accordingly, an investigation was to be ordered - Held, yes
September 22, 2017
COMPETITION COMMISSION OF INDIA FINDS CONDUCT AND PRACTICE OF COAL AND SAND TRANSPORTATION COMPANIES TO BE IN CONTRAVENTION OF COMPETITION LAW
PIB PRESS RELEASE DATED 14-9-2017
The Informant, Western Coalfields Limited, had approached Competition Commission of India (Commission) alleging bid-rigging by SSV Coal Carriers Private Limited, M/s Bimal Kumar Khandelwal, M/s Pravin Transport, M/s Khandelwal Transport, M/s Khandelwal Earth Movers, M/s Khanduja Coal Transport Co., M/s Punya Coal Road Lines, M/s B. Himmatlal Agrawal, M/s Punjab Transport Co. and Avaneesh Logistics Private Limited, upon noticing identical price quotes given by them in four tenders floated for coal and sand transportation. It was alleged that the conduct of submitting identical bids at higher rates is a blatant act of bid rigging.
The case was investigated by the Director General, Competition Commission of India(CCI) who found these parties in violation of Section 3(3)(d) of the Act. The Commission after hearing the parties concluded that they were in agreement to fix prices resulting in bid-rigging in the tenders floated by the Informant. In its order, the Commission noted that such conduct in public procurement besides defeating the tendering process, has an adverse impact on the process of competition resulting in deprivation of efficient outcomes that would have followed otherwise.
The Commission has held the said parties to be in contravention of the provisions of Section 3(3)(d) of the Act. Further, the Commission has also found eight officials of the said parties to be liable in terms of Section 48 of the Act being responsible for running the business or for being a part of the impugned conduct.
Resultantly, the Commission passed the following orders:
♦ The parties have been directed to cease and desist from indulging in anti-competitive conduct.
♦ A total penalty of Rs. 11,81,71,260 (Eleven Crores Eighty One Lacs Seventy One Thousand Two Hundred & Sixty) has been imposed on the ten parties, calculated at the rate of 4% of their average turnover during the last three financial years. The Commission has also imposed penalty on the eight officials of the said parties who were found to be liable in terms of Section 48 of the Act.
September 22, 2017
Reliance Jio Vs Other Telcos: Bombay High Court Terms Competition Commission Order Illegal, Says Every Majority Decision Is Not ‘Cartelisation...
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, CIVIL APPELLATE JURISDICTION, WRIT PETITION NO. 8594 OF 2017 WITH WRIT PETITION NO. 8596 OF 2017
Vodafone India Limited Vs. The Competition Commission of India
In a huge relief to telecom giants, Vodafone India, Idea Cellular and Bharti Airtel Limited, the Bombay High Court quashed and set aside an order of the Competition Commission of India (CCI) which directed a probe into the directed a probe into the ‘cartelisation’ charge leveled against them by new market player Reliance Jio.
September 06, 2017
No abuse of dominance by Road Transport Corporation by charging less fares from commuters
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI BENCH, Karnataka State Road Transport Corporation v. Sree Gajanana Motor Transport Co. Ltd.
Section 26, read with sections 3 and 4, of the Competition Act, 2002 - Procedure for inquiry under section 19 - Appellant and R2 were State Road Transport Corporation - R1 providing passenger transport services in various routes in Karnataka alleged that appellant and R2 had classified routes as monopoly and non-monopoly and they were not allowing private bus operators including R1 to operate their buses on monopoly routes; with a view to curb competition, appellant through flexi rate scheme was charging less fare from commuters in non-monopoly route and thus abused its dominant position - Commission after taking into consideration relevant facts came to conclusion that though appellant was in a dominant position, it had not abused its position - Commission by impugned order issued directions that it would be appropriate in larger public interest that State Government could take a fresh view regarding said schemes - Whether once Commission came to a definite conclusion that person holding dominant position had not abused its power and its activities were not unfair and anti-competitive, in absence of any specific evidence, Commission had no jurisdiction to issue any direction for alleged prima facie case of contravention - Held, yes - Whether since Commission had no authority to express its view as to what State Government was required to do in larger public interest, directions passed by Commission were to be set aside - Held, yes
August 12, 2017
GAIL abused its dominant position by imposing 'take or pay' liability in 'Gas sale agreement'
COMPETITION COMMISSION OF INDIA, Mohan Meakin Ltd. v. GAIL (India) Ltd
Competition Act : Where Gas Supply Agreement between informant and GAIL provided for take or pay liability, same appeared to create entry barriers for alternative suppliers to enter market of supply of natural gas or build up a viable customer base and, therefore, was in contravention of section 4
Section 4 of the Companies Act, 2013 - Prohibition of abuse of dominant position - Informant was engaged in manufacture of glass bottles - It entered into a Gas Sale Agreement (GSA) with Opposite Party (GAIL) to procure natural gas for use at its plant/premises located at Mohan Nagar, Ghaziabad - 'Informant' filed information under section 19(1)(a) against GAIL alleging contravention of provisions of section 4 - Informant's primary concern related to differences in price charged by Opposite Party from its customers located at Ghaziabad and Firozabad, and unfair nature of terms and conditions of GSA entered into between Informant and Opposite Party - It was found that in earlier information Commission had held that manufacturing unit of Informant and manufacturing units in Firozabad were distinct categories of consumers and, hence, difference in RLNG prices between these categories could not be termed as discriminatory - Whether terms of GSA providing for take or pay liability appeared to create entry barriers for alternative suppliers to enter market of supply of natural gas or build up a viable customer base - Held, yes - Whether on facts instant information prima facie suggested contravention of section 4 and, therefore, instant information was to be clubbed with other cases and DG was directed to investigate matter - Held, yes
June 10, 2017
Coal India Limited (CIL) abused its dominant position by imposing discriminatory conditions in Fuel Supply Agreement
COMPETITION COMMISSION OF INDIA, Madhya Pradesh Power Generating Co. Ltd. v. South Eastern Coalfields Ltd.
Section 4 of the Competition Act, 2002 - Prohibition of abuse of dominant position - Informations were filed by power utilities companies against SECL and CIL alleging contravention of section 4 in matter of supply of non-coking coal -
Whether CIL through its subsidiaries operated independently of market forces and enjoyed dominance in relevant market of sale of non-coking coal to thermal power producers and sponge iron manufacturers in India - Held, yes
Whether CIL did not evolve/draft/finalize clauses of FSAs through a mutual bilateral process and same were imposed upon buyers without seeking/considering their inputs in any effective manner - Held, yes
Whether since there was no mechanism for non-power sector for review of declared grade of coal, there was a contravention of provisions of section 4(2)(a)(i) on issue of grade review for non-thermal power buyers as terms were patently discriminatory in nature - Held, yes
Whether since OPs were acting in contravention of provisions of section 4(2)(a)(i) for imposing unfair/discriminatory conditions through FSAs and indulging in unfair/discriminatory conduct in matter of supply of non-coking coal, they were directed to cease and desist from indulging in said conduct - Held, yes
June 5, 2017
Ajanta Pharma v. Theon Pharmaceuticals #TM Infringement, Bombay High Court:
Brief Back Ground:
Ajanta registered a mark called “FERANTA”.
Intas used a mark called “INTAS FERINTAS”.
Ajanta claimed trade mark infringement and sought an injunction order.
Court held in favour of Intas.
Now, one of the arguments put forth by the defendants (Intas), to show absence of infringement, attempted to show that the mark was named in accordance with standard industry practice.
The standard industry practice of naming products, in the current case, involved combining a key ingredient’s name with that of the corporation. For example, FER (Iron) + INTAS.
Key take away of this Judgment:
Though the causes of action are distinct, some of their tests overlap Common to both is this sequencing:
(1) are the marks identical?
(2) if not, are they similar;
(3) what is the nature and degree of similarity;
(4) what goods or services are they being used on or for?
(5) are those goods or services identical, or similar?
The answers to these questions, in various permutations, yield a result.
But it is not possible to invert this paradigm, and suggest that because the goods are either the same or similar, therefore one must work backwards to conclude that the marks must be similar, or held to be similar, and therefore, infringement and passing off must both be presumed.
Identity or similarity of marks must be the first test, not the assumption, and we proceed to the goods or services from there, not the other way around
May 18, 2017
No abuse of dominance by OP-PSU engaged in generation of electricity in State of Maharashtra: CCI
COMPETITION COMMISSION OF INDIA, Vidharbha Industries Association v. MSEB Holding Co. Ltd.
Competition Act : Where OP, a PSU engaged in generation of electricity was dominant in relevant market for provision of services for distribution of electricity in State of Maharashtra except Mumbai but allegations against OP and its subsidiaries regarding abuse of dominant position had not been substantiated, no case of abuse of dominance by OP was made out
Section 4 of the Competition Act, 2002 - Prohibition of abuse of dominant position - OP and its subsidiaries were engaged in business of generation, transmission and distribution of electricity respectively in State of Maharashtra - Informant filed information against OPs alleging that OPs as a group, had abused their dominant position by deliberately generating and distributing electricity in an extremely inefficient manner and denying market access to other efficient power generating companies for generating and distributing electricity in State of Maharashtra - Whether OP4 had 100 per cent market share in relevant market for provision of services for distribution of electricity in State of Maharashtra except Mumbai because it was sole licensee to distribute electricity in State of Maharashtra except Mumbai and as such, there was no competitor of OP4 in relevant market - Held, yes - Whether since OP4 acquired its monopoly position in relevant market being a PSU and sole licensee for distribution of electricity in relevant geographic market, OP4 was in a dominant position in relevant market - Held, yes - Whether determination of tariff between OP2 and OP4 by MERC was in line with established rules and regulations and within purview of regulatory architecture under Electricity Act, 2003 and, therefore, allegation of Informant that OP4, by purchasing power from OP2 at a higher cost, had imposed unfair price on its consumers in contravention of section 4(2)(a)(ii) was not established - Held, yes - Whether even though OP4 was in a dominant position in relevant market allegations raised by informant regarding abuse of dominant position by OP4 viz. OP4 purchased entire electricity produced by OP2 which resulted in denial of market access to other power producers; OP4 was buying power at a higher cost from OP2 which was cost inefficient in comparison to other power generating companies resultantly, competition in electricity generation sector had been affected and consumers of OP4 were compelled to pay higher tariff for electricity and OP4 was denying open access to consumers for availing electricity from other sources; had not been substantiated and violation of section 4 was not established - Held, yes - Whether since no case of contravention of any of provisions of section 4 was made out against OP4, matter was to be closed - Held, yes
May 01, 2017
Where PGCL engaged in transmission of electricity throughout India was not operating in relevant market of 'laboratory services for testing construction material in India', PGCL could not be said to be dominant in relevant market and abusing its dominant position
COMPETITION APPELLATE TRIBUNAL, NEW DELHI, Prem Prakash v. Competition Commission of India, New Delhi
Section 4 of the Competition Act, 2002 - Prohibition of abuse of dominant position - Appellant ran an engineering testing laboratory - PGCL was a public sector company engaged in transmission of electricity throughout India - PGCL, in order to lay transmission lines got transmission towers erected on foundations constructed by contractors selected through a process of tendering - Appellant filed information against PGCL alleging that PGCL contravened section 4 by issuing instruction to get materials used in construction to be tested from NABL approved laboratories - Commission by impugned order refused to order investigation holding that no contravention of section 4 was made out against PGCL -
Whether since PGCL was in nature of a consumer of laboratory testing services for construction material, it should have liberty in deciding standards of quality of work which it expected from its contractors and if approval from NABL was considered as an important parameter, one should have no objection to PGCL adopting that practice - Held, yes -
Whether since PGCL did not operate in relevant market of 'laboratory services for testing construction material in India', it could not be said to be dominant in relevant market and, therefore, abusing its dominant position by enforcing a conduct on its downstream partners - Held, yes -
Whether thus, appellant had not been able to make out a case of dominance and its abuse against respondent, PGCL - Held, yes
April 01, 2017
Agrium-Potash merger likely to hurt competition, says CCI
India’s competition regulator said the proposed merger of fertilizer producers Agrium Inc and Potash Corp of Saskatchewan Inc is likely to hurt competition, but the comments were not expected to prevent the merger.
Potash Corp and Agrium agreed to merge last September to navigate a severe industry slump by boosting efficiency and cutting costs.
Neither Canadian company has a physical presence in India, but they supply potash to India through Canpotex Ltd, which they own with Mosaic Co.
The commission is of the (initial) opinion that the proposed combination is likely to have an appreciable adverse effect on competition,” the Competition Commission of India said
March 24, 2017
Dow Chemical-DuPont merger to have adverse effect on competition: CCI
The Competition Commission of India (CCI) believes that the global merger deal between Dow Chemical and DuPont may impact competition in the country. “CCI is prima facie of the opinion that the proposed combination between Dow and DuPont is likely to have an appreciable adverse effect on competition,” said the Ministry of Corporate Affairs in a press release.
March 04, 2017
1) Comparative Advertising Per Se Doesn’t Amount To Disparagement
Dismissing suits by ‘hypersensitive’ shampoo manufacturers, the Delhi High Court has held that comparative advertising, i.e., comparing own product with that of competitor’s and calling own superior / better than competitor‘s, would not amount to disparaging the goods/products of the other
Delhi High Court dismissed all three suits between Procter & Gamble Home Products Private Limited and Hindustan Unilever Ltd., claiming disparagement of goods of the plaintiff in the suit by the defendant in television commercials (TVC) of its goods and seeking relief of injunction and damages.
February 24, 2017
COMPETITION COMMISSION OF INDIA, Debabrat Mishra v. Daimler Financial Services India (P.) Ltd.
Competition Act : Where there were many players such as Arval, ALD Automotive, Magma Auto Lease, SMAS Auto Leasing, Tata Capita, ORIX etc. in relevant market of provisions of lease financing services for luxury cars in India, informant had multiple options to approach any of those players for lease financing services and, thus, OP-financial services was not dominant in relevant market and question of alleged abusive conduct by OP within meaning of provisions of section 4 did not arise
February 14, 2017
CCI imposed Rs. 206 crore penalty on cement companies for cartelization
COMPETITION COMMISSION OF INDIA, Director, Supplies & Disposals, Haryana v. Shree Cement Ltd.
Competition Act : Where OP-cement companies acted in a collusive and concerted manner which had eliminated and lessened competition besides manipulating bidding process in respect of impugned tender floated by State of Haryana, OPs had contravened provisions of section 3
Section 3 of the Competition Act, 2002 - Prohibition of agreements - Anti-competitive agreements - Informant filed information against OP-cement companies alleging that OPs had colluded with each other and attempted to rig bid in impugned tender which was for supply of cement to Government Departments/Boards/Corporations in State of Haryana - Whether since OPs reduced bid quantity in impugned tender without any convincing basis, such a conduct of OPs was due to meeting of minds/arrangement between OPs - Held, yes - Whether OPs not only quoted unusually high prices in response to impugned tender acting in unison vis-a-vis prices quoted in previous tender, but had also allocated market amongst them by committing lower quantity and by bidding in a manner so as to secure L1 positions in selected district as a part of sharing arrangement - Held, yes - Whether different basic prices of cement for same destination defied logic and signified clear manipulation of bids and, such parallel conduct on several counts, could not be a sheer coincidence and same affirmed collusive conduct of parties - Held, yes - Whether OPs through their impugned conduct had contravened provisions of section 3(3)(d), read with section 3(1) by acting in a collusive and concerted manner which had eliminated and lessened competition besides manipulating bidding process in respect of impugned tender floated by State of Haryana - Held, yes - Whether OPs were directed to cease and desist from such acts and penalty was to be imposed upon them - Held, yes
February 01, 2017
Where OP was dominant in relevant market for provision of services for development/sale of residential apartments in Gurgaon and had imposed abusive terms and conditions through allotment agreement, OP had contravened section 4
COMPETITION COMMISSION OF INDIA, Ashutosh Bhardwaj v. DLF Ltd.
Section 4 of the Competition Act, 2002 - Prohibition of abuse of dominant position - Informant booked an apartment in a housing project of OP-DLF in Gurgaon - Apartment Buyer's Agreement was entered into between informant and OPs - Informant filed information alleging that OP had abused its dominant position by imposing highly arbitrary, unfair and unreasonable conditions on apartment buyers through agreement and had violated section 4 - Whether OP group held a dominant position in market for provision of services for development/sale of residential apartments in Gurgaon - Held, yes - Whether since terms and conditions imposed through agreement were abusive being unfair within meaning of section 4(2)(a)(i), OP group had contravened section 4 - Held, yes
14, January, 2017
DG to investigate into allegations of predating price against 'Uber':
COMPETITION APPELLATE TRIBUNAL, Meru Travels Solutions (P.) Ltd. v. Competition Commission of India, New Delhi
Where Meru, engaged in radio taxi service business, had filed information against respondent, Uber alleging that Uber had abused its dominance by alluding to predatory pricing and following unfair condition, DG was directed to conduct an investigation into allegations contained in information filed by Meru
CDPQ’s proposed purchase of minority stake in TVS Logistics gets CCI nod
Antitrust regulator Competition Commission of India (CCI) on Friday approved the proposed acquisition of a minority stake by Caisse de Dépôt et Placement du Québec (CDPQ), Canada’s second largest pension fund, in TVS Logistics Services Ltd. The acquisition is worth Rs1,000 crore.