You are on page 1of 25

TEAM CODE: A8

THE 16TH RAJ ANAND INTELLECTUAL PROPERTY MOOT

COURT COMPETITION

BEFORE,

THE COMPETITION COMMISSION OF NIDIA

UNDER SECTION 19(1) OF COMPETITION ACT, 2002

FENTON & PCRA……………………………….…….….…. INFORMANT

ERDEVAN &SULKEN LABS….….………….………OPPOSITE PARTY

CLUBBED WITH

PCRA……………………………………………………………. INFORMANT

FENTON, CUESTA & CO. AND…………….………. OPPOSITE PARTY

WAYNOR LABS

MEMORIAL FILED ON BEHALF OF OPPOSITE PARTIES


TABLE OF CONTENTS

Contents

LIST OF ABBREVIATION ................................................................ ii

INDEX OF AUTHORITIES .............................................................. iii

STATEMENT OF JURISDICTION ................................................... ix

STATEMENT OF FACTS ................................................................. x

STATEMENT OF ISSUES ............................................................... xi

SUMMARY OF ARGUMENTS ........................................................ xii

ARGUMENTS ADVANCED .............................................................. 1

PRAYER ...................................................................................... xiii

i
LIST OF ABBREVIATION

& And

§ Section

¶ Paragraph

EL Erdevan laboratories

SL Sulken Laboratories

SCC Supreme Court Cases

AIR All India Reporter

Bom. Bombay

Del. Delhi

SCR Supreme Court Reporter

CCI Competition Commission of India

Inc. Incorporation

ii
INDEX OF AUTHORITIES

Cases

Aspen Skiing Co v. Aspen Highlands Skiing Corp. 472 U.S. 585

(1985) ......................................................................................... 5

Bharti Airtel Limited v. Reliance Jio Infocomm Limited, (2017) C.C.I. 3

................................................................................................. 10

Case COMP/C-3/37.792 Microsoft, OJ L32/23 (2007). ................. 2

Case T-201/04 Microsoft Corpn v. Commission, 2007 E.C.R. II-3601

(1070) ......................................................................................... 5

Dr. L.H. Hiranandani Hospital, Powai, Mumbai v. Competition

Commission of India and Ors., (2014) C.C.I. 19 .......................... 10

Farbwerke Hoechst & B. Corporation v. Unichem Laboratories, A.I.R.

(1969) Bom. 255. ........................................................................ 8

Fieldturf v. Southwest Recreational Indus., 235 F. Supp. 2d 708

(E.D. Ky. 2002) ............................................................................ 4

France Telecom v. Commission, Case C-202/07, 2007 E.C.R. II- 107

................................................................................................... 3

Gillette Safety Razor co. v. Anglo-American Trading Co. Ltd., 30

R.P.C. 465 ................................................................................... 9

iii
Glenmark Generics Ltd., Glenmark Access Ltd. & Glenmark

Pharmaceuticals Ltd., (2014) C.C.I. 44 ....................................... 11

H.M.M. Limited v. Director General, M.R.T.P.C., (1998) 6 S.C.C. 485. 5

Hilti AG v. Commission, 1991 E.C.R. II-1439 ................................... 3

Hoffmann La-Roche & Co. v. Commission, 1979 E.C.R. 461............. 3

Kini v. Dr L.H. Hiranandani Hospital, No. 39, C.C.I. (2012). ............. 3

Lucas Automotive Engineering v. Bridgestone/Firestone Inc., 275 F.

3d 762. ....................................................................................... 2

Matrimony.com Ltd. v. Google Ltd. Liability Co., No. 7&30, C.C.I.

(2012)............................................................................................. 6

National Collegiate Athletic Assn. v. Board of Regents of University of

Oklahoma, 468 U.S. 85 (1984)................................................... 11

National Stock Exchange of India Ltd. v. Competition Commission of

India, 2014 CompLR 304 (CompAT). ........................................... 6

New Moon v. Mylan, C-2014/08/202. ............................................. 8

NV Nederlandsche Banden- Industrie Michelin v. Commission, 1983

E.C.R. 3461 ................................................................................ 3

Om Datt Sharma v. M/s. Adidas AG, (2014) C.C.I. 10 ................... 10

Prasar Bharti v. TAM Media Research Private Ltd., No. 70, C.C.I.

(2012). ........................................................................................ 3

iv
Rado v. John Two & Son Ltd., (1967) R.P.C. 297. ............................ 9

Ravi Raj Gupta v. Acme Glass Mosaic Industries, 56 (1994) D.L.T.

673 ............................................................................................. 9

SCM Soilfert Limited and Others v. Competition Commission of India,

(2016) Comp. LR 1111. ............................................................... 7

Shri Amitabh v. Kent R.O. Systems, (2014) C.C.I. 100 ................... 10

Silver v. New York Stock Exchange, 373 U.S. 341, 348-49 (1963) .... 9

Standard Oil Co. of California and Standard Inc. v. United States 337

U.S. 293 (1949) ........................................................................... 2

State of UP v. Gir Prasad, 2004 (2) S.C.R. 637............................... 11

Sunil Bansal v. Jaiprakash Associates Ltd., 2015 CompLR 1009

(C.C.I.). ....................................................................................... 6

Union of India v. Hindustan Development Corporation, (1993) 3

S.C.C. 499 ................................................................................ 11

United States v. Syufy Enter., 903 F. 2d 659 (9th Cir. 1990). .......... 4

United States v. Tracinda Inv. Corp., 477 F. Supp. 1093 (CD Cal.

1979). ......................................................................................... 8

US v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001). ........................ 5

VFS Global Services Private v. Mr. Suprit Roy, 2008 (2) Bom. C.R.

446 ............................................................................................. 5

v
Walker Process Equipments Inc. v. Food Machinery and

ChemicalCorp., 382 U.S. 172 (1965). ........................................... 2

Yogesh Gaenshji Somani v. Zee Turner Ltd., (2013) C.C.I. 31 ......... 11

Statutes

Competition Act, 2002, (12 OF 2003) (India). .................................. 9

Competition Act,2002 §19 (5). ........................................................ 2

Other Authorities

Commission Press Release IP/00/297, 27 Mar. 2000. .................... 1

Keith E. Maskus,Competition Policy and Intellectual Property Rights

in Developing Countries: Interests in Unilateral Initiatives and A

WTO Agreement (1999) . ............................................................. 2

Treatises

Treaty on the Functioning of the European Union art. 102, Mar. 25

1957. .......................................................................................... 3

Regulations

The Competition Commission of India (Procedure in regard to the

transaction of business relating to combinations) Regulations,

2011, (No.3 of 2011) (India). ........................................................ 7

vi
Books

Barry J. Rodger & Angus Mac Culloch Rotledge, Cavendish

Competition Law & Policy in the E.C. and U.K. 213 (4th ed.,

Oxford 2006 .............................................................................. 10

D.P. Mittal, Competition Law & Practice 185 (3rd ed. 2011). .......... 4

Law Reports

M.M.Sharma, How Mergers Affect Competition, Company Law

Report (2008) ............................................................................ 12

Raghavan Committee Report on Competition Law ¶ 4.4.5............... 2

Online Resources

Competition and Regulation Issues in the Pharmaceutical Industry,

OECD (2000),http://www.fne.gob.cl/wp-

content/uploads/2014/03/OECD_-2000-Competition-and-

regulation-issues-in-the-pharmaceutical-industry.pdf .................. 10

European Telecommunications Standards Institute, E.T.S.I. Guide

on Intellectual Property Rights(Nov. 30, 2011), http://

www.etsi.org/images/files/IPR/etsi-guide-on-ipr.pdf .................. 4

Guidelines

vii
Commission’s Guidelines on Vertical Restraints, para 116. ............ 1

Hans Henrik Lidgard and Tu T. Nguyen, The CFI Microsoft

Judgment and TRIPs Competition Flexibilities; European

Commission’s Guidelines on the application of Article 101 TFEU to

technology transfer agreements OJ (2004)C 101/2 ....................... 2

Articles

Alberto Heimler & Kirti K. Mehta, Regulating Mergers in Fast

Growing Economies, Company Law Report (2008). ...................... 8

Vikas Kathuria and Jessica C. Lai, Validity of Non-Disclosure

Agreements in SEP Licensing, Tilburg University J. (Jan. 2018). .. 4

Journals

Application of Article 81(3) of the Treaty to categories of technology

transfer agreementsOfficial Journal L 123 , 27/04/2004 P. 0011 -

0017 ........................................................................................... 4

viii
STATEMENT OF JURISDICTION

1. Information in Case No. 01 of 2018 filed under Section 19(1)(a) of

the Competition Act, 2002 (‘the Act’) by Fenton Laboratories and

Pharmaceutical Consumer Right Association (Informant) against

Erdevan and Sulken Laboratories (Opposite Party) for alleged

violation of the provisions of Section 3&4 of the Act. The Opposite

party humbly submits to the jurisdiction of this Honorable

Commission.

2. Information in Case No. 02 of 2018 filed under Section 19(1)(a) of

the Competition Act, 2002 (‘the Act’) by Pharmaceutical

Consumer Right Association (Informant) against Fenton

Pharmaceuticals, Cuesta & Co. and Waynor Labs (Opposite

Party) for alleged violation of the provisions of Section 3,4,5&6 of

the Act. The Opposite Party humbly submits to the jurisdiction of

this Honorable Commission.

ix
STATEMENT OF FACTS

1. Erdevan laboratories is one of the pharmaceutical company in

Nidia, engaged in manufacturing of Glidolin(anticoagulant) as main

product for which it has acquired patent. EL granted license to its

subsidiary Sulken Pharmaceuticals at 3.4% and to Fenton

Pharmaceuticals, another company at 4.2%as it was based upon

extent of usage. Another similar anticoagulant called Parin was also

there for same treatment. PCRA and Fenton filed a case in

Competition Commission for violation of Section 3 & 4 of

Competition Act, 2002 against EL.

2. Waynor Laboratories is a company dealing with R&D of medicine.

Cuesta and Co. made an investment into WL and had also

previously invested in Fenton Pharmaceuticals. Fenton and Waynor

entered into a joint venture to enter into a market of cardiac

medicine. EL filed a patent infringement suit against Fenway. The

DC granted an interim injunction in the favour of EL. The PCRA

also filed a case against JV in competition commission in violation

of sec 3(1), 3(3) (a)-(c) and 4(2)(c) of the Competition Act, 2002.

x
STATEMENT OF ISSUES

1. WHETHER EL WAS INVOLVED INTO EXCLUSIVE SUPPLY

AGREEMENT?

2. WHETHER ERDEVAN LABORATORIES HAS ABUSED ITS

DOMINANT POSITION IN THE RELEVANT MARKET?

3. WHETHER THE FORMATION OF JOINT VENTURE WAS

NOTIFIABLE UNDER SECTION 6(2) OF THE COMPETITION ACT?

4. WHETHER FENWAY WAS INVOLVED IN ANTI-COMPETITIVE

PRACTICES?

5. WHETHER JOINT VENTURE WAS INDULGED IN THE PRACTICE

OF DENIAL OF MARKET ACCESS?

6. WHETHER FENWAY IS CREATING ANY APPRECIABLE

ADVERSE EFFECT ON COMPETITION?

xi
SUMMARY OF ARGUMENTS

1. THAT ERDEVAN LABORATORIES WAS NOT INVOLVED INTO

EXCLUSIVE SUPPLY AGREEMENT

EL acquired patent for Glidolin and was granting license on a

reasonable terms. Protecting Intellectual property per se is not

abusive. The market for Glidolin patent was open for all the buyers.

2. THAT EL HAS NOT ABUSED ITS DOMINANT POSITION

EL had put different rates-based extent of usage and was not

dominant in the market as well.

3. THAT THE FORMATION OF JOINT VENTURE WAS NOT

NOTIFIABLE AND WAS NOT CAUSING AAEC

The investment was passive in nature and the merger was not a

combination as the de minimis required was not full filled by the

combination. Joint venture was producing efficient drug and hence,

the sec 3 exception should be applicable here. The joint venture is

not in violation of sec 19(3) a-c of the competitive act and is not

creating AAEC.

xii
ARGUMENTS ADVANCED

1. THAT EL WAS NOT INVOLVED IN EXCLUSIVE SUPPLY

AGREEMENT UNDER SECTION 3(4)(b)

I. In1 Gas Natural/ Endesa the Commission held that, in some

circumstances, long-term supply agreements may be

justifiable2. Section 3(5) deals with “reasonable conditions” for

protection of patent rights.

II. However, in the present case, the company EL was not

involved into exclusive supply agreement with any of patent

licensee. The market for Glidolin patent was open for all the

buyers. It was not putting any sort of impact upon the

competition because of different patent rate as it was based

upon different usage of buyer.

III. Intellectual property protection per se is not abusive but

ironically, if it dominates over the market it is only doing a

legitimate job of its purpose.3. Monopoly per se in the market

1 Commission Press Release IP/00/297, 27 Mar. 2000.


2 Commission’s Guidelines on Vertical Restraints 2010/C 130/01, para. 116.
3 Keith E. Maskus,Competition Policy and Intellectual Property Rights in Developing Countries:

Interests in Unilateral Initiatives and A W.T.O. Agreement (1999).

1
is not anti-competitive in nature4, but abuse of monopoly is

considered as anti-competitive5.

2. THAT ERDEVAN LABORATORIES HAS NOT ABUSED ITS

DOMINANT POSITION

IV. It is humbly submitted before the court that the relevant

product market6 is research and manufacturing of cardiac

medicines on the basis of consumer preference7 and EL has

gained a reputation for manufacturing medicines that treat

heart diseases with great efficacy8. Moreover, there does not

exists a lack of demand substitutability for the consumer9.

V. Following are the indicators of dominance10:-

a) Market shares are only a ‘useful first indication11’ and is

‘only one of the factors that decides whether an enterprise is

dominant or not, but that factor alone cannot be decisive proof

4 Hans Henrik Lidgard and T. Nguyen, The C.F.I. Microsoft Judgment and T.R.I.P.s
Competition Flexibilities; European Commission’s Guidelines on the application of Article [101
T.F.E.U.] to technology transfer agreements O.J. [2004] C. 101/2; A.B.A.
5 Case T.-201/04, Microsoft v. Commission; Case C.O.M.P/C.-3/37.792 Microsoft, O.J. 2007

L32/23.
6 Competition Act,2002 §19(5).
7Standard Oil Co. of California and Standard Inc. v. United States 337 U.S. 293 (1949); Walker

Process Equipment’s Inc. v. Food Machinery and Chemical Corp., 382 U.S. 172 (1965).
8 Moot Proposition ¶2.
9 Lucas Automotive Engineering v. Bridgestone/Firestone Inc., 275 F. 3d 762.
10 Raghavan Committee Report on Competition Law4.4.5

https://theindiancompetitionlaw.files.wordpress.com/2013/02/report_of_high_level_committe
e_on_competition_policy_law_svs_raghavan_committee.pdf. Last visited on (05 August 2018
7:15 PM).
11 Treaty on the Functioning of the European Union art. 102, Mar. 25, 1957.

2
of dominance’12. It cannot be considered to be deciding factor

for determination of dominance. Moreover, the consumers

were not dependent on the enterprise as a similar product

namely Parin was also present.13.

b) Courts and tribunals have stressed that dominance per se

is not bad. However, dominant undertaking has a “special

responsibility” to not distort competition by its unreasonable14

conduct. Here, although EL has been granted patent over

Glidolin but it was not abusing its position and was ready to

grants license to other companies15 also.

c) “Entry of new competitors proves the existence of a

competitive market and an absence of barriers to entry16.”

Thus, since Fenton pharmaceuticals and other companies

were already existing in the market, this proves absence

barrier to entry17.

12 Kini v. Dr L.H. Hiranandani Hospital, No. 39, C.C.I. (2012); Hilti AG v. Commission 1991
E.C.R. II-1439 ; Hoffmann La-Roche & Co. v. Commission, 1979 E.C.R. 461.
13 Moot Proposition ¶6.
14 France Telecom v. Commission, Case C.-202/07, (2007) E.C.R. II- 107; N.V.

NederlandscheBanden- Industries Michelin v. Commission, 1983 E.C.R. 3461; Prasar Bharti v.


T.A.M. Media Research Private Ltd., No. 70, C.C.I. (2012).
15 Moot Proposition ¶6.
16 Fieldturf v. Southwest Recreational Indus., 235 F. Supp. 2d 708 (E.D. Ky. 2002); United

States v. Syufy Enter., 903 F. 2d 659 (9th Cir. 1990).


17 D.P. Mittal, Competition Law & Practice 185 (3rd ed. 2011).

3
VI. The counsel submits that the case at hand has seen a fair and

non-discriminatory market strategy being followed by EL and

not an abuse of dominant position. The licensing rates which

were stipulated by EL were in concurrence with the FRAND

terms. The rebate provided by EL was fair and reasonable

taking into account the extent of usage and method of usage.

Secondly, the non-disclosure agreement was not unfair and

was used to protect the commercial interests of both18, the

licensor as well as the potential licensee19 . The term unfair

price may not always cover excessive price20. Hence, it does

not violate section 4(2)(a)(i).

VII. It was held that to be condemned as exclusionary, a

monopolist’s conduct must have an anti-competitive effect21.

However, in the present case, the price stipulated by EL does

not amounts to imposition of discriminatory price under

18 Application of art. 81(3) of the Treaty to categories of technology transfer agreements Official
Journal L. 123 , 27/04/2004 P. 0011 - 0017 ;European Telecommunications Standards
Institute, E.T.S.I. Guide on Intellectual Property Rights(Nov. 30, 2011), http://
www.etsi.org/images/files/IPR/etsi-guide-on-ipr.pdf; Vikas Kathuria and Jessica C. Lai,
Validity of Non-Disclosure Agreements in S.E.P. Licensing, Tilburg University J. (11 Jan. 2018).
19 V.F.S. Global Services Private v. Mr. Suprit Roy, 2008 (2) Bom. C.R. 446; H.M.M. Limited v.

Director General, M.R.T.P.C., (1998) 6 S.C.C. 485.


20 Department of Agriculture v. Mahyco Monsanto (2015) C.C.I. 2.
21 U.S. v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).

4
section 4(2)(a)(ii) as it was based on extent of usage and

method of usage, hence, it was objectively justified.

VIII. As section 4 is similar to Article 82 EC, therefore, the

jurisprudence of EU brings more clearly into focus the idea

that a dominant firm should compete on merits22 .Relating it

with the facts, the stipulation of price based on rebates was

not anticompetitive and did not attract AAEC. Presence of

Fenton pharmaceuticals, Waynor laboratories in itself proves

that there was no denial of market access23.

IX. Application of Section 4(2)(e) requires two, distinct relevant

markets. It was laid down that enterprise must be dominant

and must be trying to enter or protect another market. 24.

Here, EL was not dominant in the relevant market of research

and manufacturing cardiac medicines because of presence of

its substitutes25. Thus, no contention of application of

section 4(2)(e) arises26. Providing rebates was based on

22 Case T.-201/04 Microsoft Corp. v. Commission, 2007 E.C.R. II-3601 (1070); Aspen Skiing Co
v. Aspen Highlands Skiing Corp. 472 U.S. 585 (1985); American Tobacco Company v. United
States 328 U.S. 781 (1946); United States v. Aluminium 148 F. 2d 416 (2d Cir. 1945).
23 Moot Proposition ¶8.
24National Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR

304 (CompAT).
25 Sunil Bansal v. Jaiprakash Associates Ltd., 2015 Comp. L.R. 1009 (C.C.I.).
26 Matrimony.com Ltd. v. Google Ltd. Liability Co., No. 7&30, C.C.I. (2012).

5
volume and on extent of usage and, therefore did not result

into AAEC as it did not drive existing competitors out of the

market because their subsidization of the license fee to

Sulken solely reflected the output generated by them and the

license fee depended on the fact that each licensee intended

to use the patent differently.

3. THE FORMATION OF JOINT VENTURE WAS NOT

NOTIFIABLE

X. With regard to applicability of Item 1 of Schedule I to the

Combination Regulations27 the Acquisition did not entitle

Cuesta & Co. to hold 25% or more of the total shares/voting

rights in both Waynor Labs and Fenton Pharmaceuticals; and

the Acquisition did not lead to an acquisition of control and

that it was merely a purchase of shares, and that no

additional management rights, such as affirmative voting

rights, were attached to the same. The firm had no intention of

participating in the formulation, determination, or direction of

27 The Competition Commission of India (Procedure in regard to the transaction of business


relating to combinations) Regulations, 2011, (No.3 of 2011) (India).

6
the basic business decisions of the issuer28. It was done in the

ordinary course of business and was made solely for an

investment purpose29. The rights which are guaranteed to

cuesta & co. was mere investor rights as any reasonable

investor would want to be informed about the financial

matters of a corporation where an investment of substantial

amount has been made30 and should be consider reasonable31.

XI. In the case of Fenton and Waynor, the merger between two

enterprises would not be considered to be a combination

under sec 5 of the Competition Act as the de minims required

was not fulfilled and hence should not be notifiable under

section 6(2) of the act and the combination market share is

insignificant and would continue to face competitive

constraints on account of the presence of other significant

competitors.

28 Zuari v. M.C.F.L., (C-2014/06/181).


29S.C.M. Soilfert Limited and Others v. Competition Commission of India, (2016) Comp. L.R.
1111.
30 United States v. Tracinda Inv. Corp., 477 F. Supp. 1093 (C.D. Cal. 1979).
31New Moon v. Mylan, C-2014/08/202.

7
4. EL PATENT SHOULD BE REVOKED

XII. The EL patent should be revoked on the ground of novelty and

obviousness as the product which was produced by the EL

does not contain any inventive step as it was just an

improvement on something which was known before.32 The

product produced was not a new result but just the improved

result of the known substance33 and the process of producing

the product was known prior in the market34 as Parin and

other similar drugs were already available in the market.

5. FENWAY WAS NOT INVOLVED IN ANTI-COMPETITIVE

PRACTICES

XIII. The JV would come under the exception of the sec 3 (3) of the

competition act, 200235 as it is involved in the production of

Waxofentil which is more efficient than any product available

in the market36. Joint production also means a reduction of

costs through economies of scale and given the intense

32 Farbwerke Hoechst & B. Corporation v. Unichem Laboratories, A.I.R. (1969) Bom. 255.
33 Rado v. John Two & Son Ltd., (1967) R.P.C. 297.
34 Gillette Safety Razor co. v. Anglo-American Trading Co. Ltd., 30 R.P.C. 465 (1913); Ravi Raj

Gupta v. Acme Glass Mosaic Industries, 56 (1994) D.L.T. 673.


35 Competition Act, 2002, §3.
36 Silver v. New York Stock Exchange, 373 U.S. 341, 348-49 (1963).

8
competitive pressure from other manufacturer, the cost

reduction will be passed on to the consumer37. In a

competitive market scenario, where there are already big

players operating in the market, it would not be

anticompetitive for an entrant to incentivize customers

towards its own services by giving attractive offers and

schemes. Such short-term business strategy of an entrant to

penetrate the market and establish its identity cannot be

considered to be anti-competitive in nature and as such

cannot be a subject matter of investigation under the Act38.

The JV involved in joint productive activity should be treated

differently from any cartel agreement39.

6. JV IS NOT INDULGED IN THE PRACTICE OF DENIAL OF

MARKET ACCESS

XIV. There is a sufficient degree of interchangeability between all

the products forming part of the same market in so far as a

37 Ford/Iveco, (1988) O.J. L230/39 (1988).


38 Bharti Airtel Limited v. Reliance Jio Info comm. Limited, (2017) C.C.I. 3; Competition and
Regulation Issues in the Pharmaceutical Industry, O.E.C.D. (2000),http://www.fne.gob.cl/wp-
content/uploads/2014/03/O.E.C.D.-2000-Competition-and-regulation-issues-in-the-
pharmaceutical-industry.pdf. Last visited on (05 Aug 2018, 5:43 PM).
39 Dr. L.H. Hiranandani Hospital, Powai, Mumbai v. Competition Commission of India and Ors.,

(2014) C.C.I. 19.

9
specific use of such product is concerned40 and that the

relevant geographic market is “throughout NIDIA”. The JV had

very little market share in the competition and was not in

dominating position as the consumer always had an option to

choose different seller because of the interchangeability of the

product. A distinction must be drawn between practices which

tend to exclude or restrict competition and the success of a

business which reflect superior product, a well-run business

on the other41. The policies of the JV do not restrict any new

entrant to enter into the market nor driving any existing

competitor out of market.

7. FENWAY IS NOT CREATING AN APPRECIABLE ADVERSE

EFFECT ON THE COMPETITION

XV. Whether such agreement unreasonably restrains the trade

depends on the nature of agreement and on the surrounding

circumstances that give rise to an interference that the parties

intended to restrain the trade and monopolies the

40 Om Datt Sharma v. M/s. Adidas AG, (2014) C.C.I. 10; Shri Amitabh v. Kent R.O. Systems,
(2014) C.C.I. 100.
41 Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985).

10
same.42There was no intention on part of the JV to acquire

monopoly and so it cannot be determined to follow an unfair

trade practice.43 The JV conducts are not in contravention of

sec 19(3) of the act and moreover the act only promote and

sustain competition, protect the interests of consumers not to

protect the less efficient competitor. Thus, the benefit that

would come out of the merger should be considered.

42National Collegiate Athletic Assn. v. Board of Regents of University of Oklahoma, 468 U.S. 85
(1984); Union of India v. Hindustan Development Corporation, (1993) 3 S.C.C. 499.
43Yogesh Ganesh Somani v. Zee Turner Ltd., (2013) C.C.I. 31; Glenmark Generics Ltd., Glenmark

Access Ltd. & Glenmark Pharmaceuticals Ltd., (2014) C.C.I. 44; State of U.P. v. Gir Prasad,
(2004) 3 S.C.C. 152.

11
PRAYER

Wherefore, in light of the facts of the case, issues raised, arguments

advanced and authorities cited, this Honorable Commission may be

pleased to adjudge and declare that:

Case No.1 of 2018:

1. That Erdevan Laboratories was not involved into Exclusive

Supply Agreement.

2. That Erdevan Laboratories has not abused its dominant

position in the relevant market.

Case No. 2 of 2018

1. That Formation of Joint Venture was not Notifiable Under

Section 6(2) Of the Competition Act

2. That Fenway was not Involved in Anti-Competitive Practices

3. That Joint Venture was not Indulged in The Practice of Denial

of Market Access

4. That Fenway is not Creating Any Appreciable Adverse Effect on

Competition Sd/-

Counsel for the Opposite Party

xiii

You might also like