3. Has Burgin and Burkes Inc.

abused its dominant position by refusing to grant access

to the database of Accio! ?
It is humbly submitted before the commission that B and B Inc. has not abused its dominant
position the relevant market because a business entity is free to exercise its discretion as to the
parties with whom they want to deal, by not granting access to database its conduct didn’t
become abuse of dominance and there is some objective justification for not granting access to
database.
1. Freedom to chose trading partner
B and B Inc. is free to chose its trading partner with whom they want to trade. US has always
been that dominant firms do not have a general duty to deal, even if they are monopolists and
their refusal limits competition. The strength of that presumption has fluctuated over time, but
it has been stated repeatedly in the case law since the 1919 Supreme Court decision United
States v. Colgate. The Court held that ― in the absence of any purpose to create or maintain a
monopoly, the [Sherman Act] does not restrict the long recognised right of [a] trader or
manufacturer engaged in an entirely private business, freely to exercise his own independent
discretion as to parties with whom he will deal.”1 In the case of Prime Mag Subscription Service
Ltd. the CCI viewed that, it is the prerogative of an enterprise to choose and decide its
distribution channel and persons/entities it wants to deal.2 The freedom to chose trading partner
has also been recognized in the ECJ.3 Competition law does not impinge on companies choices
choices to deal, or not to deal, with other companies.4 In the case of Verizon Communications,
Inc. v. Trinko,5 the US Supreme court observed that Sherman Act does not impose a general
duty on monopolists to share the source of their advantage with rivals because doing so would
conflict with the underlying purpose of antitrust law. In particular, it could reduce the incentive
for the monopolist, the rival, or both to invest in the economically beneficial facilities in the
first place. Furthermore, enforcing such a duty would require courts ―to act as central
planners, identifying the proper price, quantity, and other terms of dealing – a role for which
they are ill-suited. Finally, the Court observed that forcing competitors to negotiate with each
other could facilitate collusion.
In the present dispute , the fact don’t prove that B an B inc. intended to create Monopoly. In
the present case denial to grant access to database is on the onus of B and B Inc. and no way
creates a monopoly or maintains it. Market share is not relevant in the present dispute because
a firm’s possession of large market share does not necessarily mean that it is either charging
monopolistic rates or behaving in a manner that decreses social welfare.6 The crucial factor is
the intention to create a monopoly, which as it has been shown, didn’t exist in the present case.
Thus it is submitted that B and B Inc. is free to chose there trading partners.

1
250 U.S. 300, 307 (1919).
2
Prime Mag subscription Service Ltd. v Willey India Pvt. Ltd. Case no. 07 of 2016
3
Oscar Bronner GmBH and Co.KG V Mediaprint Zeitings – und Zeitschriftenverlag GmBH and Co. KG. Case C-
7/97, 1998 ECR I- 7791 (The European Court of Justice)
4
Alison jones and Brenda Sufrin, EU Competition law :text, cases and Materials 4 th ed, Oxford University Press
2010
5
540 U.S. 398 (2004)
6
Adam Candeub, Trinko and Re-grounding the refusal to deal doctrine, 66(4) Pittsburgh Law Review 821, 827
(2005)
 2. No market for search Data
Market Definition is one of the most important analytical tools to examine and evaluate the
competitive constraints that a firm faces and the impact of its behaviour on competition.7 The
act, consistent with international precedent requires the existence of trading relationship
between a company and its customers as a pre-condition for defining a relevant market
and establishing dominance.8
In the present case there is no market for search data. It is submitted that user don’t conduct
search. They search for queries and queries are specific (specific things, such as people, places,
recipes, products, or local businesses)9. Within each of these query categories, Accio! competes
with all types of services.
3. Refusing the allegation that there is an Abuse of dominant position by denial of
database
At first place there is no relevant market in present case .The allegation made by Stark
Industries that there is abuse of dominant position by B and B Inc. The mere factors which are
taken into consideration for proving abuse of dominant position is not conclusive. Section 4 is
Abuse of Dominance position and to determine it factors are provided in Section 19(4).
3.1 Market Share is Not conclusive factor alone to Establish Dominance
Market Share figures alone cannot be the sole criterion for determination of market power or
dominance.10 This is not In the line with relevant stautes and laws on the said issue.11
Consequently, though market share is a major factor, it could be the sole yardstick and the
number of other factors would play pivotal role in the determination of Dominance. 12 In the
present as B and B inc. owns 92%(approximately) of market share all over world including
Westorosi.13
3.2 Size and resources and competitor
The presence of an efficient competitor in the market, who is in better financial or networking
position provides sufficient competitive constraints to the biggest player in the market. 14 In
present case there is 3 to 4 players operating search engines amounting to 8-10% market share.

7
OECD, Policy Roundtables Market Definition 2012
8
In Re: Matrimony.com Limited (“Matrimony.com”) and Google LLC & Ors. with In Re: Consumer Unity & Trust
Society (“CUTS”) and together with Matrimony.com, the “Informants”) and Google LLC & Ors. (collectively
referred to as, “Google”)
9
In Re: Matrimony.com Limited (“Matrimony.com”) and Google LLC & Ors. with In Re: Consumer Unity & Trust
Society (“CUTS”) and together with Matrimony.com, the “Informants”) and Google LLC & Ors. (collectively
referred to as, “Google”)

10
European Commission, DG Competition Discussion Paper on the application of Article 82 of the treaty to
exclusionary Abuses ‘ 2005
11
The Competition Act 2002 S 19(4)
12
Case 85/76 Hoffmann- La Roche v Commission, 1979 ECR 461; Case 27/76 United Brands and Co V
Commission , 1978 ECR 207.
13
Moot Proposition ¶5
14
Fast Traack Call Cab Pvt. Ltd. V ANI Technologies Pvt. Ltd Case No 6 and 74/2015
And the owner of infinity search engines is a MNC tech Conglomerate and they have the
resources to create there own market.
None of the “other factors” under Section 19(4) of the Act give Accio! market power First,
Accio! size and resources do not distinguish it from its rivals, such as Infinity and others.
Second, search is not subject to direct or indirect network effects. Third, returning high-quality
search results is largely dependent on technological capabilities unrelated to query scale; the
benefits of scale are subject to significant diminishing returns. Fourth, search is not
characterised by substantial barriers to entry and expansion.
4. No Technological Entry Barrier
High technology services demand continuous innovation.15 In the present situation Stark
Industries is a MNC tech Conglomerate and is pioneer in various technological innovations16
is highly develop in technological area than B and B Inc. Section 4(2)(b)(ii)17 does not apply.
Stark Industries have their own developed database as S.I own online marketspace, e-
commerce space, aggregator apps for radio taxis and payment gateway services.18
Section 4(2)(c) does not apply in the present case. In the case of Kapoor Glass Case19 it was
stated that this section does not apply where alternative means of supply exist. In the present
case there are 3-4 other supplier in the market including Infinity.

15 15
In Re: Matrimony.com Limited (“Matrimony.com”) and Google LLC & Ors. with In Re: Consumer Unity &
Trust Society (“CUTS”) and together with Matrimony.com, the “Informants”) and Google LLC & Ors.
(collectively referred to as, “Google”)

16
Moot Proposition ¶11
17
The Westoresi Competition Act 2002
18
Moot Proposition ¶11
19
Kapoor Glass (India) Pvt. Ltd. v Schott Glass India Pvt. Ltd. Case No. 22/2010