Respondent

TEAM CODE: T-12
3rd TNNLU-CCI NATIONAL MOOT COURT COMPETITION, 2020
BEFORE
THE COMPETITION COMMISSION OF IMARTI
IN THE MATTERS OF
CASE NO. 76 0F 2018 UNDER SECTION 19 OF THE IMARTI COMPETITION

ACT, 2002
ACME PRIVATE LIMITED...........................................................................…INFORMANT
V.
UMBRELLA PRIVATE LIMITED & EPOC GAMES PRIVATE

LIMITED……………………………………………………………….……RESPONDENTS
Clubbed with
CASE NO. 01 0F 2019 UNDER SECTION 19 OF THE IMARTI COMPETITION

ACT, 2002
INDEPENDENT SERVICE OPERATIONS............………………………... INFORMANT
V.
UMBRELLA PRIVATE LIMITED, ACME PRIVATE LIMITED&

OTHERS…………………………………………………................................RESPONDENT
UPON SUBMISSION TO THE HON’BLE COMPETITION COMMISION

OF IMARTI
WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS
I|Page
TABLE OF CONTENTS
INDEX OF AUTHORITIES....................................................................................................IV
STATEMENT OF JURISDICTION........................................................................................IX
STATEMENT OF FACTS........................................................................................................X
ISSUES RAISED...................................................................................................................XII
SUMMARY OF ARGUMENTS..........................................................................................XIII
ARGUMENTS ADVANCED...................................................................................................1
[1.] THAT THE AGREEMENT DATED 9/5/2015 WAS NOT ANTI-COMPETITIVE

IN NATURE..........................................................................................................................1
[1.1.] That The Agreement Did Not Cause Appreciable Adverse Effect On THE
Competition........................................................................................................................1
[1.2.] That The Restraint In The Agreement Served A Broader Goal Within A
Legitimate Agreement And Had An Overall Ameliorating Effect On The Competition.. 3
[1.3.] That Exclusivity Agreements Constitute A Common Practise In The Market

And Are Important For Competition..................................................................................6
[2.] THAT THE RESPONDENTS DO NOT ENJOY A DOMINANT POSITION IN

THE RELEVANT MARKET................................................................................................7
[2.1.] The Market Relates To ‘Manufacture And Sale Of Game Consoles And Video
Games, Which Allow Users To Play Games Displayed On A Screen In Imarti’ As The
Relevant Market.................................................................................................................8
[2.2.] Umbrella Is Not Dominant In The Identified Relevant Market...........................9
[3.] IN ARGUENDO, THE ALLEGED ACTS OF UMBRELLA INC. DO NOT

AMOUNT TO ABUSE OF DOMINANT POSITION........................................................12
[3.1.] Holding A Dominant Position In A Market Is Not Per Se Bad.........................12
[3.2.] The Pricing Policy Of Umbrella Does Not Violate Section 4(2)(A)(II)............13
[3.3.] The Alleged Conduct Of The Respondents Is “Competition On Merits” And

Does Not Amount To Abuse Of Dominant Position.......................................................14
[3.4.] No Injury Caused To ACME.............................................................................15
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[4.] THAT THERE WAS NO COLLECTIVE DOMINANCE IN THE MARKET.......15
[4.1.] The Act Does Not Deal With The Concept Of Collective Dominance.............16
[4.2.] No Presence Of Alleged Cartelization...............................................................17
[4.3.] High Market Share Does Not Lead To Collective Dominance..........................19
[4.4.] Ingredients For ‘Abuse’ Of Market Not Fulfilled..............................................20
[5.] THAT THE AGREEMENTS BETWEEN THE MANUFACTURERS AND THE

INDEPENDENT SERVICE PROVIDERS ARE NOT ANTI-COMPETITIVE IN
NATURE..............................................................................................................................21
[5.1.] That The Agreement Itself Is Necessary And Has The Ability To Promote
Competition In The Market..............................................................................................21
[5.2.] That The Clause Stipulating Exclusivity Is Pro-Competitive And Is Not Likely
To Have Adverse Effect On The Competition.................................................................22
[5.3.] That ISOs Decline In Business Is Not Indicative Of The Anti-Competitive

Nature Of The Agreement................................................................................................23
[5.4.] In Arguendo, The Console Manufacturing Companies Have Not Abused Their
‘Collective Dominant Position’ In Violation Of Section 4..............................................24
[5.5.] Essential Facilities Doctrine Not Violated.........................................................24
PRAYER..................................................................................................................................27
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INDEX OF AUTHORITIES
Cases
Balram Kumawat v. Union of India, (2003) 7 SCC 628..........................................................16
Consumer Online Foundation v. Tata Sky Ltd., (2011) SCC OnLine CCI 12........................16
Fast Track Call Cab Pvt Ltd & Ors v. Ani Technologies Pvt. Ltd., (2015) SCC OnLine CCI
70......................................................................................................................................7, 19
Gurudevdatta VKSSS Maryadit and Ors. v. State of Maharashtra and Ors., (2001) 4 SCC
534........................................................................................................................................16
Jagadesan v. State of Tamil Nadu, (2015) SCC OnLine Mad 3721........................................16
Jupiter Gaming Solutions Pvt. Ltd. v. Government of Goa & Ors, (2011) SCC OnLine CCI
24..........................................................................................................................................13
Manappuram Jewellers Pvt. Ltd. v. Kerala Gold & Silver Dealers Association, (2012) SCC
OnLine CCI 24.....................................................................................................................14
Meru Travel Solutions Pvt. Ltd. v. M/S ANI Technologies Pvt. Ltd., (2016) SCC OnLine
Comp AT 192.................................................................................................................16, 19
N Sanjeev Rao and Mrs. Fatima Tahir v. Andhra Pradesh Hire Purchase Association, (2013)
SCC OnLine CCI 7........................................................................................................16, 24
R.S. Nayak v. A.R. Antulay, (1984) 3 SCC 86........................................................................17
Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, AIR 1961 SC 1325........................17
Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (1996) 1 SCC
642........................................................................................................................................16
Saint Gobain Glass India Ltd. v. M/s Gujrat Gas Company Limited, (2013) SCC OnLine CCI
38............................................................................................................................................9
Saurabh Tripathy v. Great Eastern Energy Corporation Ltd., (2017) SCC OnLine CCI 10.. .11
Sh. Dhanraj Pillay & Ors. v. M/S Hockey India, (2013) SCC OnLine CCI 36.......................15
Shri Neeraj Malhotra, Advocates v. North Delhi Power Ltd., (2011) SCC OnLine CCI 20...12
State of Andhra Pradesh v. Modern Proteins Ltd., (1994) Supp (2) SCC 496........................16
IV | P a g e
Tamil Nadu Consumer Products Distributors Association v. Fangs Technology Private
Limited, (2018) SCC OnLine CCI 95....................................................................................9
Tata Engineering and Locomotive Co. Ltd. v. The Registrar of Restrictive Trade Agreement,
AIR 1977 SC 973...................................................................................................................1
Vishal Gupta v. Google LLC, (2018) SCC OnLine CCI 56......................................................4
Statutes
Competition Act, 2002, § 19(3).............................................................................................1, 5
Competition Act, 2002, § 19(4)(h)...........................................................................................10
Competition Act, 2002, § 19(5).................................................................................................8
Competition Act, 2002, § 19(6)(f).............................................................................................8
Competition Act, 2002, § 19(6)(g).............................................................................................8
Competition Act, 2002, § 2(s)....................................................................................................8
Competition Act, 2002, § 2(t)....................................................................................................8
Competition Act, 2002, § 3(1).................................................................................................21
Competition Act, 2002, § 3(4).............................................................................................1, 21
Competition Act, 2002, § 4(1).............................................................................................7, 16
Competition Act, 2002, § 4(2)...................................................................................................8
Competition Act, 2002, § 4(4)...................................................................................................7
Competition Act, 2002, § 4......................................................................................................24
Other Authorities
Competition (Amendment) Bill 2012......................................................................................17
Determination of Cost of Production Regulations 2009, § 3(1)..............................................13
EC Treaty TFEU, art. 102........................................................................................................10
EC Treaty TFEU, art. 82 § (c)..................................................................................................20
EC Treaty TFEU, art. 83 § (b).................................................................................................20
Sherman Act,, § 1 (1890)...........................................................................................................3
Regulations
V|Page
Commission Notice, Guidelines on Vertical Restraints, ¶125, available at
http://ec.europa.eu/competition/antitrust/legislation/guidelines_vertical_en.pdf ...............22
Competition Issues Related to Sports, supra note 152, at 76.....................................................5
European Commission Guidelines on Vertical Restraints, 2010 O.J. (C 130) 1.......................5
Guidance on Article 102 Enforcement Priorities in Applying Article 82 EC Treaty to Abusive

Exclusionary Conduct by Dominant Undertakings, 2009 O.J. (C 45) 7..............................10
Books and Law Journals
Commission, Guidance on the Commission's enforcement priorities in applying Article 102

of the EC Treaty to abusive exclusionary conduct by dominant undertakings (the
Guidance) (2009) O.J. (C 45) 7...........................................................................................14
D.P Mittal, Competition Law and Practice 409 (2nd ed. 2007)...............................................22
Damien Gerard, Price Discrimination under Article 82 (2) (C) EC: Clearing up the
Ambiguities, SSRN E.J.........................................................................................................20
David AJ Goldfine, The Fall of Kodak Aftermarket Doctrine: Dying a slow death in Lower
Courts, 72 ANTITRLJ 209, 212 (2004)...............................................................................11
E. Elhauge, Defining Better Monopolization Standards, 56 Stan. L. Rev. 253, 300 (2003).. .25
F. Wijckmans, and F. Tuytschaever, Vertical Agreements in EU Competition Law 106 (2nd

ed. 2011).................................................................................................................................8
G.P. Singh, Principles of Statutory Interpretation 92 (5th ed, EBC 2012)..............................17
Geradin and Petit, Price Discrimination under EC Competition Law: The Need for a case-by-
case approach, 07/05 GCLC W.P.S....................................................................................20
M. Lao, Networks, Access, and Essential Facilities: From Terminal Railroad to Microsoft, 62
SMU. L. Rev. 557, 558 (2009).............................................................................................25
Okeoghene Odudu, Collective Dominance Clarified? 63(1) Cam. L.J. (2004).......................18
R Posner, Antitrust Law, 11 (2nd ed. 2001)..............................................................................5
Sandra Marco Colino, Vertical Agreements and Competition Law: A Comparative Study of
the EU and US Regimes 51 (Hart Publishing 2010)..............................................................1
Smriti Parsheera, Ajay Shah & Avirup Bose, Competition Issues in India’s Online Economy ,
194 NIPFP (2017)..........................................................................................................19, 21
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Whish, Richard & Bailey David, Competition Law, 566 (7th ed. Oxford University Press
2012)....................................................................................................................................19
Online Resources
Galarza Andrés Dziadykiewicz, Exclusive Distribution: An overview of EU and National

Case Law (Jan. 2,
2012),http://www.gibsondunn.com/publications/Documents/GalarzaDziadykiewicz-
ExclusiveDistribution.pdf......................................................................................................6
Robert E. Tomasson, Nintendo to Pay $25 Million in Rebates on Price Fixing (Apr. 11,
1991), https://www.nytimes.com/1991/04/11/business/nintendo-to-pay-25-million-in-
rebates-on-price-fixing.html”, (Accessed on 17th February 2020).......................................7
Foreign Judgements
American Tobacco Company v. U.S., 328 U.S. 781 (1946)....................................................14
Appalachian Coals Inc. et al v. United States, 288 U.S. 344 (1933)...............................2, 3, 23
Barr Labs, Inc. v. Abbott Labs, 978 F.2d 98 111 (3rd Cir. 1992).............................................22
Board of Trade of the City of Chicago v. U.S., 246 U.S.S.C. 231 (1998).................................3
Crawford v. Spooner, (1846) SCC OnLine PC 7.....................................................................16
Digital Equipment v. Uniq Digital Technology, 73 F.3d 756..................................................11
Eastman Kodak Co. v. Image Technical Services Inc, 504 U.S. 451 (1992)..........................11
Genzyme Ltd. v. OFT, 2004 C.A.T. 4.....................................................................................12
International Air Industries, Inc. v. American Excelsior Co. 517 F.2d 714, 724 (5th Cir. 1975)
..............................................................................................................................................13
Menasha Corp. v. News America Marketing In-Store, Inc., 354 F.3d 661 (7th Cir. 2004)..5, 21
P.S.I. Repair Service v. Honeywell, Inc.,104 F.3d 811 (6th Cir. 1997)....................................11
Paddock Publishing, Inc. v. Chicago Tribune Co., 103 F.3d 42 (7th Cir. 1996)..................5, 21
Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2011 U.S. Dist. LEXIS 48847........22
Roland Machinery Company v. Dresser Industries, 749 F.2d 380 (7th Cir. 1984).....................1
Southern Pac. Communications Co. v. AT&T, 740 F.2d 980 (D.C.Cir. 1984).......................23
Sterling Merchandising Inc. v. Nestle, 656 F.3d 112 (1st Cir. 2011).........................................4
VII | P a g e
Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320 (1961)..............................................4
United States v. Colgate & Co., 250 U.S. 300 (1919).............................................................22
United States v. Dentsply International Inc., 399 F.3d 181 (3rd Cir. 2005).............................15
European Court of Justice
27/76, United Brands Co. v. Commission, 1978 E.C.R. 207.......................................10, 18, 19
56/65, Societe Technique Miniere v. Maschinendau Ulm, 1966 E.C.R. 337............................3
Automobiles Dealers Association v. Global Automobiles Ltd., CCI Case no. 33/2011...........1
Boosey and Hawkes: Interim Measures, 1988 O.J. L286/36...................................................10
C-23/76, Brasserie de Haecht v. Wilkin, 1967 E.C.R. 407........................................................1
C-234/89, Delimitis v. Henninger Brau, 1991 E.C.R. I-935..................................................1, 2
C-258/78, Nungesser v. Commission, 1982 E.C.R. 2015..........................................................3
C-280/08, Deutsche Telekom A.G. v. Commission, 2008 E.C.R. II-477................................13
C-403/08, Football Association Premier League Ltd. v. QC Leisure and Others, 2011 E.C.R.
I-9083.....................................................................................................................................4
C-413/06, P Bertelsmann and Sony Corporation of America v. Independent Music Publishers

and Labels Association, 2008 E.C.R. I-495.........................................................................18
C-62/86, A.K.Z.O. v. Commission, 1991 E.C.R. I-3359...............................................9, 13, 20
C-68/94 & C-30/95, French Republic and Société Commerciale des Potasseset de l'azote and
Entreprise Minière et Chimique v. Commission, 1998 E.C.R. I-1375................................19
C-7/97, Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs, 1998 E.C.R. I-7791...24, 25
Hoffmann-La Roche & Co. AG v. Commission, 1979 E.C.R. 461.............................10, 14, 20
T-30/89, Hilti A.G. v. Commission of the European Communities, 1991 E.C.R. II-1439..9, 19
T-342/99, Airtours plc v. Commission of the European Communities, 2002 E.C.R. II-2585.18
T-5/97, Industrie des poudresspheriques S.A. v. Commission of European communities, 2000

E.C.R. II-3755......................................................................................................................14
VIII | P a g e
STATEMENT OF JURISDICTION
CASE NO. 76 OF 2018
In the present information filed under Section 19(1)(a) of the Competition Act, 2002
concerning the matter of ACME Pvt. Ltd. v. Umbrella Inc. Pvt. Ltd. and EPOC Games Pvt.
Ltd.. The Respondents humbly submit to the jurisdiction of this Hon’ble Tribunal.
CASE NO. 01 OF 2019
In the present information filed under Section 19(1)(a) of the Competition Act, 2002
concerning the matter of ISOs v. Umbrella Inc. and Other Console Manufacturers. The
Respondents humbly submit to the jurisdiction of this Hon’ble Tribunal.
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STATEMENT OF FACTS
THE PARTIES
1. Umbrella Private Limited (“Umbrella”), incorporated in 1998, is one of the first

companies in Imarti to develop game console. It launched its first console in 2000 –
‘Gamecast’.
2. Epoc Games Private Limited (“Epoc”), incorporated in 1984, is a game developer.
3. Acme Private Limited (“Acme”), incorporated in 2006, is also a console
manufacturer.
4. Independent Service Operations (“ISOs”).
EXCLUSIVITY AGREEMENT BETWEEN UMBRELLA AND EPOC
5. In 2008, Acme approaches Epoc to create a high quality version of their games Prince
of Arabia and Road Rush over which Acme would hold an exclusive license for its
console.
6. On 09.05.2015, Umbrella entered into Exclusivity agreement with the Epoc for a term
of 6 years with a confidentiality clause. In January 2016, after the acquisition of the
patents and intellectual property rights. Umbrella releases GameCastXperience
(GCX) with Epoc’s ‘Mountain Run: Journey to Monkey Temple’.
7. On news of the release, Acme hurriedly approaches Epoc to create the sequel to
Prince of Arabia. Epoc, now bound by the Agreement, expresses its inability to work
with Acme and also declines to disclose the terms of the Agreement.
INDEPENDENT SERVICE OPERATIONS & AUTHORISED SERVICE CENTRES
1. With the launch of Gamecast in 2000, Umbrella decided to make its technical know-
how, component parts and diagnostic tools freely available in the market. Other
companies followed the same service strategy leading to a strong service market for
ISOs.
2. In 2013, Umbrella received complains of sub-standard repairs by ISOs and its sale
were dropping due to unlicensed clones.
3. To combat the issue of proliferation of unlicensed parts and services, Umbrella
established several Umbrella Authorised Repair Centres and issues licenses to ISOs to
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become Authorised Service Centres on the condition that they only service Umbrella
consoles and offer Epoc Games for sale.
INFORMATION FILED UNDER SECTION 19 OF IMARTI COMPETITION ACT, 2002
9. On 07.09.2018, Acme filed an information with CCI alleging that Umbrella and Epoc
had violated the provisions of the Act by restricting the distribution of Epoc’s games
and their source code exclusively to Umbrella vide an agreement as well as Umbrella
had abused its position in the market for manufacture and sale of gaming console by
denying Acme access to the market.
10. On 10.01.2019, the ISOs filed an information alleging that the console manufacturers
who were now also present in the market for repair and servicing of consoles through
their authorized service centres had become collectively dominant in this market since
they were the sole repositories of the technical information required to operate in this
market and the console manufacturers had abused such collective dominance by
cutting off access to information required to service such consoles. The ISOs alleged
that this commercial conduct by all the console manufacturers had denied the ISOs
access to this market for service and repair.
11. CCI found the allegations in the Case 1 of 2019, to be integrally connected with Case
No. 76 of 2018 and clubbed the matters together. It, therefore, ordered the DG to
submit a consolidated report.
DG REPORT
12. The DG submitted its report on 27.10.2019 wherein it had found that the Agreement
dated 09.05.2015 was an anti-competitive vertical agreement, the effect of which was
to deny market access to Umbrella’s competitors in the market for gaming consoles in
Imarti. However, the DG found that, Umbrella could not be said to be dominant in
this market and concluded that Umbrella had not engaged in abuse of dominant
position.
13. The DG also noted that this was an appropriate case for the concept of collective
dominance to be introduced, as the denial of market access to ISOs was the result of
systematic withholding by all console manufacturers of information key to the
servicing of consoles.
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14. All the console manufacturer denied the allegations and contended that their actions
were business protective and in the interest of innovation and protection of their
intellectual property rights.
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ISSUES RAISED
[I]
WHETHER THE AGREEMENT DATED 09/05/2015, BETWEEN UMBRELLA INC.
AND EPOC WAS ANTI-COMPETITIVE IN NATURE.
[II]
WHETHER UMBRELLA HAD ABUSED ITS POSITION IN THE MARKET FOR
‘MANUFACTURE AND SALE OF GAMING CONSOLES’ BY DENYING ACME
ACCESS TO THIS MARKET
[III]
WHETHER THE CONSOLE MANUFACTURERS WHO WERE NOW ALSO
PRESENT IN THE MARKET FOR REPAIR AND SERVICING OF CONSOLES HAD
BECOME COLLECTIVELY DOMINANT IN THIS MARKET
[IV]
WHETHER THE AGREEMENT BETWEEN THE MANUFACTURERS AND THE
SERVICE PROVIDERS WAS NOT ANTI-COMPETITIVE IN NATURE
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SUMMARY OF ARGUMENTS
CASE NO. 76 OF 2018
ISSUE I: WHETHER THE AGREEMENT BETWEEN THE UMBRELLA AND

EPOC IS ANTICOMPETITIVE IN NATURE.
It is humbly submitted before the Hon’ble Commission that the agreement between the
Umbrella and EPOC is anticompetitive in nature.
The respondents do not enjoy a dominant position in the relevant market. The relevant market
refers to the manufacturing of consoles and video games. The agreement between the
respondents does not cause an appreciable adverse effect on the competition and that the
alleged conduct of the Respondents is “competition on merits” and does not amount to abuse
of dominant position. In arguendo, the alleged acts of Umbrella Inc. do not amount to abuse
of dominant position, as the agreement has the ability to promote competition in the relevant
market.
ISSUE II: WHETHER THE RESPONDENTS HAVE ABUSED THEIR DOMINANT

POSITION IN THE RELEVANT MARKET.
It is humbly submitted before the Hon’ble Commission that the respondents have not abused
their dominant position in the relevant market.
The respondents do not enjoy a dominant position in the market. Hence they have not abused
their dominant position in the relevant market. The agreement entered into between Umbrella
and EPOC is not anti- competitive in nature as there are other players in the market and it
does not cause an appreciable adverse effect on the competition. The restraint in the
agreement served a broader goal within a legitimate agreement and has an overall
ameliorating effect on the competition and has the ability to promote competition. And such
agreements are a common practice in the market as it is important for the competition.
CASE NO. 1 OF 2019
ISSUE III: WHETHER THE RESPONDENTS ARE IN POSITION OF COLLECTIVE

DOMINANCE.
It is humbly submitted before the Hon’ble Commission that the respondents are not in a
position of collective dominance.
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The concept of collective dominance does not exist in the Competition Act 2002. A bill was
introduced in 2012, The Competition Amendment Bill of 2012 to include the term in the Act
which clearly shows that the concept does not exist in the jurisprudence of the Competition
Act 2002. There is no presence of alleged cartelization among the respondents and none of
them are in a dominating position. Mere high market shares do not lead to collective
dominance, rather when two undertakings in the same market have significant market share
(leading to market power) it is symbolic of a vibrant and fierce competition in the market. In
arguendo, the respondents do not fulfil the ingredients for ‘abuse’ of collective dominance.
ISSUE IV: WHETHER THERE WAS AN ABUSE OF COLLECTIVE DOMINANCE

BY THE RESPONDENTS.
It is humbly submitted to the Hon’ble Commission that there was not an abuse of collective
dominance by the respondents.
The agreement between the respondents in itself is necessary and has the ability to promote
competition. Since the respondents are not in position of collective dominance the agreement
does not have an appreciable adverse effect on competition and the clause stipulating
exclusive dealing of goods has pro-competitive effects. The ISOs decline in business is not
indicative of the anticompetitive nature of the agreements. It is also submitted that there is no
violation of “Essential Facilities Doctrine” by the respondent as it fulfils all the criteria of
exceptions, and that the reduction of the incentive to invest to essential facilities if an
enterprise is required to share them with all competitors and that the interest of Article 82 is
to protect the interests of consumers rather that the interest of competitors.
XV | P a g e
ARGUMENTS ADVANCED
[1.]THAT THE AGREEMENT DATED 9/5/2015 WAS NOT ANTI-COMPETITIVE

IN NATURE.
It is humbly submitted before this Honourable Court that the agreement between Umbrella
Inc. and EPOC games dated 9th May 2015 was not anti-competitive in nature as it did not
have appreciable adverse effect on competition. The objection of exclusive dealing
agreements is that they deny a competitor access to the market during the term of the
agreement.1Agreements within the purview of §3(4) of the Act would be in contravention of
3(1) only if they are likely to cause AAEC.2 Such agreements are not per se illegal. The rule
of reason is applied to assess such agreements. 3 The likely pro-competitive and anti-
competitive effects of an agreement are to be evaluated on a case to case basis, and only a net
negative impact on competition renders it illegal. 4It is therefore, necessary to evaluate the
specific consequences of the restraints in the economy to determine whether or not a restraint
is lawful.5 Effects of such an agreement are to be assessed in the context in which they occur
and the cumulative effect on competition.6 The Respondents submit that the restraint served
broader goal within a legitimate agreement rather than a naked restraint.
[1.1.] THAT THE AGREEMENT DID NOT CAUSE APPRECIABLE ADVERSE EFFECT ON THE
COMPETITION.
The Act specifies factors like creation of entry barriers, driving existing competition out of
the market, and foreclosure of competition by hindering entry into the market to determine
the aggravating effects of the agreement.7
[1.1.1.] Barriers to new entrants in the market and foreclosure of competition.

It is inherent from the facts that there exist software developers of repute other than EPOC in
the country of Imarti8. It is prima facie valid that there are no direct barriers which have been
created due to the mere existence of the agreement. Over the last decade other players that
1
Roland Machinery Company v. Dresser Industries, 749 F.2d 380 (7th Cir. 1984).
2
Competition Act, 2002, § 3(4).
3
Tata Engineering and Locomotive Co. Ltd. v. The Registrar of Restrictive Trade Agreement, AIR 1977 SC
973.
4
C-234/89, Delimitis v. Henninger Brau, 1991 E.C.R. I-935. ; Automobiles Dealers Association v. Global
Automobiles Ltd., CCI Case no. 33/2011.
5
Sandra Marco Colino, Vertical Agreements and Competition Law: A Comparative Study of the EU and US
Regimes 51 (Hart Publishing 2010).
6
C-23/76, Brasserie de Haecht v. Wilkin, 1967 E.C.R. 407.
7
8
Proposition, ¶ 20.
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have entered and exited the market their market shares have also fluctuated over time
considering that exclusive agreements are a common practice. This indicates that agreement
has neither “created barriers to the entry of new entrants in the market” nor “it has foreclosed
the competition by hindering entry into the market” In Stergio Delimitis v Henninger Brau9,
the Court of Justice observed that factors such as opportunities to access have to be
considered while analysing the effects of exclusive supply agreements.
In the present case, the new manufacturers’ or the existing competitors who want to penetrate
the market, may access the same through other software developers like ACME tried
to10.Therefore, alternative opportunities of accessing the market exist in the present case.
Furthermore, in the present case, there are still numerous console developers who exist in the
market,11 thus establishing that there is no substantial foreclosure of market, given there exist
alternative opportunities for access.
[1.1.2.] Driving existing competitors out of the market (Section 19(3) (c)).
Umbrella did not drive existing competitors out of the market in any manner. It is evident
from the facts that ACME is not struggling for its survival in the market due to Umbrella’s
actions and on the contrary is emerging as the main competitor in the market. There are still
several players in the relevant market12.
[1.1.3.] That ACME’s decline in business is not indicative of the anticompetitive nature of
the agreements.
It is humbly submitted that an enterprise is not to be condemned of undue restraints because it

may affect changes in the market conditions,13 where the change would be in mitigation of
recognized evils and would not impair, but rather foster fair competitive opportunities. The
question is one of intent and effect, not to be determined by arbitrary assumptions, but by
close scrutiny of the particular conditions and purpose of each case. 14 In the instant case, the
market being dealt with falls under the umbrella of private sector. In order to be a competitive
player in such an industry, innovation in technology and better retail service becomes the
primary requirement. For such reliability to be acquired, the highest possible quality standard
must be assured. It is contended that the manufacturing market and aftermarket are
9
C-234/89, Delimitis v. Henninger Brau, 1991 E.C.R. I-935.
10
Proposition, ¶ 21.
11
Proposition, ¶ 24.
12
Clarification, q 2.
13
Appalachian Coals Inc. et al v. United States, 288 U.S. 344 (1933).
14
Id.
2|Page
interlinked. The business strategy of the upstream market is bound to influence the
downstream market. Each must be flexible enough to adapt these changes 15. The introduction
of this new system has only intensified existing competition. ACME losing out on buyer
loyalty should not be attributed to the acts of the Umbrella Inc. and their acts cannot be taken
to be indicative of the anti-competitive nature of the agreement.
[1.2.] THAT THE RESTRAINT IN THE AGREEMENT SERVED A BROADER GOAL WITHIN A
LEGITIMATE AGREEMENT AND HAD AN OVERALL AMELIORATING EFFECT ON
THE COMPETITION.
According to the Competition Act, it is the effect of the agreement that is important, not the
object. The restrictions in the agreement have to be assessed in the context of the market to
determine their net effect on competition.16 The objective of Competition Law is to promote
and protect effective competition so that the consumers are assured of low prices and high
quality. This is the aim of Positive factors. The mere fact that parties to an agreement
eliminate competition among themselves is not enough to condemn it. The question is of
intent and effect, not to be determined by arbitrary assumptions. In a case 17 it was held that an
enterprise is not to be condemned as undue restraint the vertical restraints in the agreement
need to be reasonable for it to have a positive effect on the competition.18
When the pro-competitive effects of an agreement, assessed in accordance with Art 81(3) EC,
outweigh its anti-competitive effects, the agreement can be seen to be on balance pro-
competitive and therefore compatible with the competition rules. In practical application,
even though a contract is found to be an exclusive-dealing arrangement, it does not violate
the section 1 of the Sherman Act19 unless the court believes it probable that performance of
the contract will foreclose competition in a substantial share of the line of commerce affected.
Thus, the respondents would like to analyse the facts and circumstances of the case under the
proper guidelines.
[1.2.1.] Relevant Market and Rule of Reason Analysis
Respondents submit that the relevant market in the present case is the Video Game Console
Manufacturing and development of Video Games in the Nation of Imarti. These are the
15
id. at 14.
16
C-258/78, Nungesser v. Commission, 1982 E.C.R. 2015.; 56/65, Societe Technique Miniere v. Maschinendau
Ulm, 1966 E.C.R. 337.
17
18
Board of Trade of the City of Chicago v. U.S., 246 U.S.S.C. 231 (1998).
19
Sherman Act,, § 1 (1890).
3|Page
products of household consumption. The production activities related to gaming consoles
cannot be substituted by any other good because they require a complex knowledge for the
production of the same20. The relevant geographic market is determined by the nature of the
product and legal regulation. The product herein is Gaming Consoles and the market centres
on all matters related to the sale of the same in Imarti.
Exclusive dealing arrangements are analysed under the rule of reason. In the case of Tampa
Electric Co v Nashville Coal Co21the Court evolved the “qualitative substantiality” test,
which requires a more detailed analysis of the market and the particular circumstances
surrounding the arrangement. Thus, the pro-competitive effects of an agreement should be
looked into.
[1.2.2.] Pro-Competitive Effects in the Relevant Market
Vertical exclusive dealing agreements can achieve legitimate economic benefits, such as
reduced cost, stable long-term supply, and predictable prices, there is no presumption under
antitrust law against such agreements; given their capacity to enable markets to operate more
efficiently and benefit consumers. The rule of reason calculus requires that anti-competitive
impairments “outweighed efficiencies or other economic benefits.” 22 In FAPL case23 , the EU
held that exclusive licensing restrict competition but when it outweigh its anti-competitive
effects, the agreement can be seen to be on balance pro-competitive and therefore compatible
with the competition rules. Following pro-competitive effects are recognised in this exclusive
agreement
1. Innovation in the market24-
1.1. The games accompanying GCX are mounted on special proprietary disks and were
the first 3D games to be introduced in the market.
1.2. First multi-use console accompanied with a DVD, CD drive and mp3.
1.3. An additional feature is also the backwards compatibility of the GCX with the
previous generation of released games.
2. Customer service approval ratings are at a high25
3. Abolition of Counterfeit market.
20
Vishal Gupta v. Google LLC, (2018) SCC OnLine CCI 56.
21
Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320 (1961).
22
Sterling Merchandising Inc. v. Nestle, 656 F.3d 112 (1st Cir. 2011).
23
C-403/08, Football Association Premier League Ltd. v. QC Leisure and Others, 2011 E.C.R. I-9083.
24
Proposition, ¶ 17.
25
Proposition, ¶ 19.
4|Page
Public interest and welfare is the foremost consideration. The Act enumerates various factors
like benefits to the customers, improvement in production and distribution, technical
development etc. to be taken into account to analyse the ameliorating effects of the
agreement.26 Exclusivity agreements enable manufacturers to make long-term investments in
the product or refuse investments before particular supply arrangements are fixed 27
Exclusivity clause helps is solving such problems.28
It also helps with the vertical externality problems.29 When manufacturers have the security
of manufacturing that product for a considerable time, they try to achieve economies of scale
and this reduces the vertical externalities.30 This helps to improve production and distribution
of the goods as well as promote technical development in the market.31 They help to tackle
the free-rider problem.32 This makes manufacturers and suppliers less sceptical about
investments for the improvement of the product.33
It has been held34 that where organizations in good faith have freely adopted their own
equipment rules and then freely entered into exclusive contracts with the respective suppliers,
the resulting exclusive contract does not violate the antitrust laws, even if the supplier has a
high market share and offers money for the exclusivity. It has been appropriately explained
that the competition to be an exclusive supplier may constitute “a vital form of rivalry, and
often the most powerful one, which the antitrust laws encourage rather than suppress.” 35
Since the agreement entered into is based on qualitative assessment, the opportunity to
become an exclusive provider for EPOC was uniformly available to everyone. Therefore,
such vertical integration must be encouraged to foster competition and efficiency in the
aftermarket for service.
Even from the side of the appellants this contract is promoting competition by allowing them
to more vigorous promotions, marketing, and expansion into new areas or products. The
undertakings favour exclusive agreements because of the huge investment and the brand
image.36 ACME, being a profitable manufacturer can bring in huge investments in Imarti. It
26
27
Competition Issues Related to Sports, supra note 152, at 76.
28
European Commission Guidelines on Vertical Restraints, 2010 O.J. (C 130) 1.
29
Id.
30
R Posner, Antitrust Law, 11 (2nd ed. 2001).
31
32
European Commission Guidelines on Vertical Restraints, 2010 O.J. (C 130) 1.
33
Id.
34
Menasha Corp. v. News America Marketing In-Store, Inc., 354 F.3d 661 (7th Cir. 2004).
35
Paddock Publishing, Inc. v. Chicago Tribune Co., 103 F.3d 42 (7th Cir. 1996).
36
Galarza Andrés Dziadykiewicz, Exclusive Distribution: An overview of EU and National Case Law (Jan. 2,
2012),http://www.gibsondunn.com/publications/Documents/GalarzaDziadykiewicz-ExclusiveDistribution.pdf.
5|Page
also ensures a steady, reliable outlet of supply for a manufacturer so that it can make
investments that increase efficiency or permit scale economies. Thus, the there are many pro-
competitive effects of the exclusive agreement which the respondents have entered into.
[1.3.] THAT EXCLUSIVITY AGREEMENTS CONSTITUTE A COMMON PRACTISE IN THE

MARKET AND ARE IMPORTANT FOR COMPETITION
It is humbly submitted before the Hon’ble Court that entering into an exclusivity agreement
between a Console Producer and Software Developer is a common practice not in just the
international markets but in the market of Imarti as well. It is inherent from the facts that
there exist software developers of repute other than EPOC in the country of Imarti 37, example
SIE Santa Monica Studio and Sony or between Relic Entertainment. EPOC has granted
exclusivity licenses to both Umbrella and ACME before 38. After the arrival of GBX in the
market ACME again tried to enter into an exclusivity agreement but failed39
The idea behind exclusive games is to sell the consoles themselves; anything else is usually a
bonus. In terms of performance there is very little to separate a GCX from a Playbox 2 40. The
most crucial way to then lure customers to one’s brand is to offer them something the
competition does not have. A second benefit of exclusives is that often the platform holder
has a tighter control over the level of quality than usual. When the developer makes a
substantial investment to make a game exclusively for their system, either through an in
house studio or through an exclusivity arrangement they make sure that the game come out as
polished as possible. Thirdly it means that the platform holder can control the narrative and
image around their console. Games like The Last of Us or God of War Sony is able to send
out the message that if you want interesting story experience the best place to find that is on
the Play-station.
During the second generation of console manufacturing, Atari 2600, Colecovision,

Intellivision were the first party manufacturers who published games for other consoles. This
created less incentive for a consumer to pick one console over another not only hurting sales
but also any incentive for innovation causing 1983 industry crash, Nintendo, trying to prevent
another crash when they brought the Famicom to the US implemented a policy requiring
many third parties to let their games remain exclusive to the console for five years as a
37
Proposition, ¶ 20.
38
Proposition, ¶ 12.
39
Proposition, ¶ 21.
40
id.
6|Page
condition for publishing. Since Nintendo was dominating the home market, publishers had
little choice but play by these rules if they wanted to be successful. Lawsuits put an end to
this practice by the 90s.41
[2.] THAT THE RESPONDENTS DO NOT ENJOY A DOMINANT POSITION IN

THE RELEVANT MARKET.
CCI42 while determining whether the OP held a dominant position in relevant market or not
remarked that abuse of dominant position under Section 4 would be attracted only when the
entity under scrutiny holds a dominant position in the relevant market. CCI also elaborated on
the concept of dominant position and stated dominant position as a position of economic
strength enjoyed by the enterprise in the relevant market, which enables it to operate
independently of competitive forces prevailing in the relevant market or affect its competitor
or consumer or the relevant market in its favour. Such ability of the enterprise to behave
independently of competitive forces needs to be assessed in light of all relevant
circumstances and the factors enlisted under Section 19(4) of the Act.
In the present matter, it has been alleged that the manufacturers’ exercise a position of
dominance in the relevant market of spare parts and have abused their position of dominance
in contravention of Section 4 of the Act. §4(1) of the Act states that no enterprise or group
shall abuse its dominant position 43. According to the Act44, dominant position means a
position of strength, enjoyed by an enterprise in the relevant market in India which enables it
to:
1. Operate independently of competitive forces in relevant market
2. Affect competitors, consumers or relevant market in its favour
[2.1.] THE MARKET RELATES TO ‘MANUFACTURE AND SALE OF GAME CONSOLES AND
VIDEO GAMES, WHICH ALLOW USERS TO PLAY GAMES DISPLAYED ON A SCREEN
IN IMARTI’ AS THE RELEVANT MARKET.
The ascertainment of the relevant market is essential for analysing a case of abuse of
dominance.45 The dominant position of an enterprise or a group within an identified ‘relevant
41
Robert E. Tomasson, Nintendo to Pay $25 Million in Rebates on Price Fixing (Apr. 11, 1991),
https://www.nytimes.com/1991/04/11/business/nintendo-to-pay-25-million-in-rebates-on-price-fixing.html”,
(Accessed on 17th February 2020)
42
Fast Track Call Cab Pvt Ltd & Ors v. Ani Technologies Pvt. Ltd., (2015) SCC OnLine CCI 70.
43
44
45
Prints India v. Springer India Pvt. Ltd., (2012) SCC OnLine CCI 45.
7|Page
market’ has to be established first.46When determining what constitutes the relevant market,
due regard must be given to both the relevant product as well as geographic market.47
All those products or services which are regarded as interchangeable or substitutable by the
consumer form part of the same relevant product market. 48 Relevant product market is
primarily determined by gauging product substitutability from a consumer’s perspective. 49 In
the instant case, the relevant product is manufacturing and sale of video games and consoles.
The buyers of the product are the common households.
The ‘relevant geographic market’50 should also be taken into consideration to identify the
relevant market.51 CCI should pay due regard to the factors such as language, 52 consumer
53
preference, inter alia, while identifying the relevant geographic market. The geographic
market for the acquisition of media rights is usually defined on the basis of national or
linguistic criteria, and is therefore national in scope. This is primarily due to the differences
in the regulatory regimes, language barriers and other conditions of competition prevailing in
the different nations. Thus, the geographic relevant market should be restricted to Imarti.
M/s Saint Gobain Glass India Ltd. v. M/s Gujrat Gas Company Limited 54– In this case, the
CCI in order to determine the ‘relevant market’ took note of factors to be considered while
determining relevant product market and relevant geographic market. The CCI in another
case55, noted that as regards to relevant geographic market, in cases where conditions of
competition for sale, in the absence of any material on record brought by the Informant to
suggest any heterogeneity in the conditions of competition across India, the whole of India is
considered as the relevant geographic market. Thus, the market is in Imarti.
In conclusion, it is submitted that the market for the ‘game consoles and video games or
game cartridges, which allow users to play games displayed on a screen, in Imarti’ is the
relevant market.
46
47
48
Competition Act, 2002, § 2(t).
49
F. Wijckmans, and F. Tuytschaever, Vertical Agreements in EU Competition Law 106 (2nd ed. 2011).
50
Competition Act, 2002, § 2(s).
51
52
Competition Act, 2002, § 19(6)(f).
53
Competition Act, 2002, § 19(6)(g).
54
Saint Gobain Glass India Ltd. v. M/s Gujrat Gas Company Limited, (2013) SCC OnLine CCI 38.
55
Tamil Nadu Consumer Products Distributors Association v. Fangs Technology Private Limited, (2018) SCC
OnLine CCI 95.
8|Page
[2.2.] UMBRELLA IS NOT DOMINANT IN THE IDENTIFIED RELEVANT MARKET
As has been argued above, the relevant market in the instant case is the market for the ‘game
consoles and video games or game cartridges, which allow users to play games displayed on
a screen, in Imarti’. It is submitted that Umbrella is not in a dominant position in this market
because first, it does not operate independently of the competitive forces prevailing in the
relevant market, and secondly, Umbrella cannot affect competitors, consumers or the relevant
market in its favour.
[2.2.1.] Umbrella’s market share is less than 50%.
The existence of a dominant position may derive from several factors which, taken
separately, are not necessarily determinative but among these factors a highly important one
is the existence of very large market shares. 56 The view may legitimately be taken that very
large shares (market shares greater than 50%) are in themselves, and save in exceptional
circumstances, evidence of the existence of a dominant position. 57 However, in the present
case, the market shares of Umbrella in market are less than 50%.58
[2.2.2.] Umbrella Cannot Operate Independently of the Competitive Forces Prevailing in

The Relevant Market.
It is an established principle that a firm would be able to behave independently of competitive

forces, if it has acquired a position of economic strength. 59 This position of economic strength
can be understood to be one of substantial market power.60
In the instant case, Umbrella doesn’t have any substantial market power in the identified
relevant market. In the last market survey Umbrella Inc. held a market share of just 30.5% in
March, 201561 This was on account of the fact that ACME which was the biggest competitor
of Umbrella was on a rise and had the market share of 24.5% despite being just seven years
old. It constitutes only a small part of the identified market, as a lot of other manufacturers
form a significant part of this market including ACME at 24.5%, Nimoy Pvt. Ltd. At 17.1%
and Klingon Pvt Ltd. at 10% to name a few 62. The market share of Umbrella Inc. in the
56
T-30/89, Hilti A.G. v. Commission of the European Communities, 1991 E.C.R. II-1439.
57
C-62/86, A.K.Z.O. v. Commission, 1991 E.C.R. I-3359.
58
Proposition, table 3.
59
27/76, United Brands Co. v. Commission, 1978 E.C.R. 207.; 85/76, Hoffmann-La Roche & Co. AG v.
Commission, 1979 E.C.R. 461.
60
Guidance on Article 102 Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary
Conduct by Dominant Undertakings, 2009 O.J. (C 45) 7.; EC Treaty TFEU, art. 102.
61
62
9|Page
market for the manufacture of consoles may not be negligible but due to the existence of
other major manufacturers its part in the market becomes diluted. Furthermore, it is worthy of
being noted that the Umbrella Inc. Therefore, it is submitted that Umbrella cannot operate
independently of the competitive forces prevalent in the relevant market.
[2.2.3.] Umbrella Cannot Affect Competitors, Consumers or The Relevant Market in Its
Favour
An enterprise should have the ability to engage in conduct that excludes competition or
prevents the entry of newcomers into the relevant market, and should be able to influence the
relevant market in its favour.63 As argued above, Umbrella holds not a significant share of the
market, on account of the fact that the relevant market includes a large number of competitors
with significant market shares of their own. Therefore, anomalous behaviour of Umbrella
would not have any significant effect on the market or competitors. It must also be pointed
out that entering into an exclusivity agreement with EPOC cannot be constituted to be as
anomalous behaviour as established earlier.
Any anti-competitive practices by Umbrella will not affect the buyers as there are other
substitutes available to the buyers in the identified market. The buyers have countervailing
buying power because of the competitive market.64
[2.2.3.1.] The consumers are not “locked-in” customers.
The Respondent submits that the hospitals are not “locked-in” under the Kodak 65-style lock-
in claims. This submission of the Respondents is based on the ground that their customers are
common household who are sophisticated purchasers that could undertake comparative
studies and demand competitive prices. The customers of the Respondents are sophisticated-
customers, it is submitted that well-informed customers do not face substantial information
costs because they are accurately able to assess the life-cycle cost of owning the primary
good.66 In doing so, sophisticated customers are insulated from aftermarket exploitation
because they engage in life-cycle pricing. 67 The US Supreme Court in Kodak 68 accepted the
idea that well-informed customers did not need anti-trust protection from information-driven
63
Boosey and Hawkes: Interim Measures, 1988 O.J. L286/36.; Competition Act, 2002, § 19(4)(h).
64
Saurabh Tripathy v. Great Eastern Energy Corporation Ltd., (2017) SCC OnLine CCI 10.
65
Eastman Kodak Co. v. Image Technical Services Inc, 504 U.S. 451 (1992).
66
David AJ Goldfine, The Fall of Kodak Aftermarket Doctrine: Dying a slow death in Lower Courts, 72
ANTITRLJ 209, 212 (2004).
67
id.
68
Eastman Kodak Co. v. Image Technical Services Inc, 504 U.S. 451 (1992).
10 | P a g e
market imperfections. In the present case, the household of a developing county is a well-
informed and sophisticated consumer. They undertake extensive research before making a
substantial investment as large as 32,500 INR in case of GCX.69
[2.2.3.2.] Post-sale opportunistic behaviour
The Courts in United States have observed that to establish a lock-in claim, Plaintiff has to
establish that the defendant implemented a post-sale change in policy in order to exploit the
installed base of consumers.70It has been observed that a post-sale change in policy was the
crucial factor in the Supreme Court’s decision in Kodak because an unanticipated change in
policy creates information change in asymmetries for consumers who are already locked-in.71
In the present case, the Respondents have not implemented any change in policy in the post-
sale period. In this context, it is submitted that buyer power is considered to act as a
constraint on an undertaking’s market power.72
In conclusion, it is submitted that Umbrella does not hold a dominant position in the relevant
market and did not violate §4 of the Act.
[3.] IN ARGUENDO, THE ALLEGED ACTS OF UMBRELLA INC. DO NOT

AMOUNT TO ABUSE OF DOMINANT POSITION.
It is humbly submitted that without prejudice to the above contentions, Section 4 of the Act
prescribes types of conduct that will be considered abusive if carried out by a dominant
enterprise. In the instant case, it is contended that the manufacturers’ conduct was not in
violation of (i) Section 4(2) (a), (ii) Section 4(2) (c), and, (iii) Section 4(2) (e) of the Act.
An undertaking in a dominant position is entitled also to pursue its own interests. However,
such an undertaking engages in abusive conduct when it makes use of the opportunities
arising out of its dominant position in such a way as to reap trading benefits which it would
not have reaped if there had been normal and sufficiently effective competition. As per
Section 4(2)(c) of Act, there shall be an abuse of dominant position if any enterprise indulges
in a practice resulting in denial of market access in any mannerist is submitted that Umbrella
Inc. did not indulge in abuse of dominant position.
69
Proposition, ¶ 19.
70
P.S.I. Repair Service v. Honeywell, Inc.,104 F.3d 811 (6 th Cir. 1997).; Digital Equipment v. Uniq Digital
Technology, 73 F.3d 756.
71
P.S.I. Repair Service v. Honeywell, Inc.,104 F.3d 811 (6th Cir. 1997).
72
Genzyme Ltd. v. OFT, 2004 C.A.T. 4.
11 | P a g e
[3.1.] HOLDING A DOMINANT POSITION IN A MARKET IS NOT PER SE BAD
The CCI has observed73 that Section 4 of the Competition Act does not prohibit an enterprise
from holding a dominant position in a market; it does place a special responsibility on such
enterprises, in requiring them not to abuse their dominant position. The CCI further held that
Section 4 does not contain an exhaustive list of activities that would amount to contravention
of its provisions. The actions, practices and conduct of an enterprise in a dominant position
have to be examined in view of the facts and circumstances of each case to determine
whether or not the same constitutes an abuse of dominance in terms of Section 4 of the
Competition Act.
In the case of Jupiter Gaming Solutions Pvt. Ltd. v. Government of Goa &Ors 74, the CCI
while determining alleged abuse of dominance by Government of Goa stated that dominance
per se is not bad, but its abuse is bad in Competition Law in India. CCI further opined that
abuse is said to occur when an enterprise uses its dominant position in the relevant market in
an exploitative manner
[3.2.] THE PRICING POLICY OF UMBRELLA DOES NOT VIOLATE SECTION 4(2)(A)(II).
The pricing policy of Umbrella does not violate section 4(2) (a) (ii) as the price charged by
them is not predatory. The price being charged by Umbrella is well above the average price
for consoles in the market.75 In order to prevail as a matter of law, a plaintiff must at least
show that either (1) a competitor is charging a price below his average variable cost in the
competitive market or (2) the competitor is charging a price below its short-run, profit-
maximizing price and barriers to entry are great enough to enable the discriminator to reap
the benefits of predation before new entry is possible 76.It was further clarified that, the
standard of profit maximization price should be applied only when the barriers to entry are
extremely high.
The prices charged by Umbrella for its diagnostic tools and manuals do not amount to margin
squeeze. The reason for ACME’s inability to compete is its own inefficiency. An equally
efficient competitor would have much lesser cost of operation and would be able to compete
with Umbrella Inc. on the relevant market which ACME has done in the past.
73
Shri Neeraj Malhotra, Advocates v. North Delhi Power Ltd., (2011) SCC OnLine CCI 20.
74
Jupiter Gaming Solutions Pvt. Ltd. v. Government of Goa & Ors, (2011) SCC OnLine CCI 24.
75
Determination of Cost of Production Regulations 2009, § 3(1).
76
International Air Industries, Inc. v. American Excelsior Co. 517 F.2d 714, 724 (5th Cir. 1975)
12 | P a g e
The EU competition commission holds that only undertaking that are ‘as efficient’ as the
dominant undertaking should benefit from the rule on exclusionary pricing abuses.77 The
dominant undertaking’s pricing practices is determined in principle on the basis of its own
situation.78 Hence it clearly follows that to avail the benefit of rule on exclusionary pricing;
ACME has to be as efficient as Umbrella. The inefficiency of Umbrella is evident 79. Hence,
the competitors cannot remain competitive in the market due to its seemingly high processing
cost and thus cannot justify characterising pricing policy as abusive.80
[3.3.] THE ALLEGED CONDUCT OF THE RESPONDENTS IS “COMPETITION ON MERITS”

AND DOES NOT AMOUNT TO ABUSE OF DOMINANT POSITION.
The Respondents submits that the definition of dominant position under 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 merits. It said that a dominant firm must not
strengthen its position by using methods other than those which come within the scope of
competition on the merits.81 Lower Prices, better quality and a wider choice of new and
improved goods and services have been considered as examples of competition on merits.82
Similarly, the Courts in United States have observed that 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 other.83
In the present case, the households in Imarti began to buy Umbrella’s Product due to multiple
reasons like better use of technology, better games, better service etc. despite of the fact that
GCX cost more than the average price of gaming consoles. 84 The criteria set by the
Respondents for their selective supply system reflects their business acumen considering the
nature of services require high technical skill.
It has been held that if a consumer declines to purchase anything from a customer, it would
not affect the market and could not be treated as causing denial of market access. 85In the
77
C-280/08, Deutsche Telekom A.G. v. Commission, 2008 E.C.R. II-477.; C-62/86, A.K.Z.O. v. Commission,
1991 E.C.R. I-3359.
78
C-280/08, Deutsche Telekom A.G. v. Commission, 2008 E.C.R. II-477.
79
Proposition, ¶ 21.
80
T-5/97, Industrie des poudresspheriques S.A. v. Commission of European communities, 2000 E.C.R. II-3755.
81
Hoffmann-La Roche & Co. AG v. Commission, 1979 E.C.R. 461.;T-65/98, Van den Bergh Foods v.
Commission, 2003 E.C.R. II-4653. ¶157.; T-201/04, Microsoft Corpn v. Commission 2007 E.C.R.II-3601.
82
Commission, Guidance on the Commission's enforcement priorities in applying Article 102 of the EC Treaty
to abusive exclusionary conduct by dominant undertakings (the Guidance) (2009) O.J. (C 45) 7.
83
.American Tobacco Company v. U.S., 328 U.S. 781 (1946).
84
Proposition, ¶ 19.
85
Manappuram Jewellers Pvt. Ltd. v. Kerala Gold & Silver Dealers Association, (2012) SCC OnLine CCI 24.
13 | P a g e
present matter, the consumers not availing the services of the ACME on its’ own accord.
ACME is required to show that the customers were actively discouraged from buying from
the ACME.86 Therefore, the manufacturers’ cannot be held liable under Section 4(2) (c) of the
Act.
Hence, it may reasonably be concluded with the facts on record that the Respondents are
competing on merits and not abusing their dominant position.
[3.4.] NO INJURY CAUSED TO ACME.
It is contended that the manufacturers cannot be held liable under Section 4(2) (c) that is
denial of market access, under the Act. Denial of market access is any conduct by which a
dominant enterprise forecloses the market or defers entry of new players in the market and
falls afoul of the provisions of the Act. 87 The main reason due to which Umbrella is before
the CCI is the envious approach of ACME in the market. The reason given by ACME in
filing information under section 19 of the Act was the allegation that Umbrella had abused its
position in the market for manufacture and sale of gaming consoles by denying Acme access
to this market88. It is submitted that the Agreement between Umbrella and EPOC caused no
injury to the cause of ACEM. It has been established earlier as to how the market is consumer
sensitive; the main cause of loss of market share by ACME is the production of sub-par titles
like King of Arabia89. Alternatively, had Umbrella and EPOC not entered into an agreement
there is no proof that ACME would have retained its market share. The US case of Dentsply90
has held that there should always be scope for a rival to access the market on a scale
sufficient to be a viable competitor. In the instant case, Umbrella created no hindrance to
ACME or any other manufacturer to sell their consoles in the market.
[4.] THAT THERE WAS NO COLLECTIVE DOMINANCE IN THE MARKET

It is the humble submission made by Umbrella and Acme that there is no abuse of collective
dominance. Rather, in the Imartian law, firstly, concept of collective dominance doesn’t exist
in the first consideration; Secondly, there is no abuse of the alleged collective dominance;
thirdly, high market share is not leading to collective dominance; and fourthly, in arguendo,
the ingredients for abuse of collective dominance are not fulfilled.
86
id.
87
Sh. Dhanraj Pillay & Ors. v. M/S Hockey India, (2013) SCC OnLine CCI 36.
88
Proposition, ¶ 22.
89
Proposition, ¶ 21.
90
United States v. Dentsply International Inc., 399 F.3d 181 (3rd Cir. 2005).
14 | P a g e
[1.2.] THE ACT DOES NOT DEAL WITH THE CONCEPT OF COLLECTIVE DOMINANCE
It is to be noted that there is no existence either of the concept of collective dominance or its
abuse under Imartian law. The same has also been categorically held by the CCI91.
a) Literal Interpretation of §4 of the Act:
According to §4(1) of the Act92, “No enterprise or group shall abuse its dominant position in
the market.” The language of the section should be dealt with application of rules of
interpretation and seeking resort to the Parliamentary wisdom besides rulings of the European
Courts. Legislations are generally interpreted in their natural and popular sense 93 and are
construed according to their grammatical connotation unless the object of the statute suggests
the contrary94. The golden rule of construction is that the words of a statute must prima facie
be given their ordinary meaning95.
Contextual reading is a well-known proposition of interpretation of statute 96.The classes of a

statute should be construed with reference to the context vis-a-vis the other provisions so as
to make a consistent enactment of the whole statute relating to the subject-matter. The rule of
"ex visceribus actus" should be resorted to in a situation of this nature 97. The contextual
reading of the word ‘group’ referred to in §4 of the Act does not refer to group of different
corporate entities or enterprises. It refers to different enterprises belonging to the same group
in terms of control of management or equity 98.Therefore under the existing wording of §4, the
collection of enterprises that do not form part of the ‘group’ may not be considered to come
within the scope of the aforesaid section.
In the recent case,99 the CCI observed that § 4 of the Act stipulated for a dominant position to
be occupied by one enterprise or one group. CCI held that two enterprises cannot be in a
dominant position at the same time. Further, there should be application of “common
parlance test”100 where a word of everyday use must be construed in that sense in which
people conversant with the subject matter with which the statute is dealing would attribute to
91
N Sanjeev Rao and Mrs. Fatima Tahir v. Andhra Pradesh Hire Purchase Association, (2013) SCC OnLine
CCI 7.
92
93
Crawford v. Spooner, (1846) SCC OnLine PC 7.
94
Gurudevdatta VKSSS Maryadit and Ors. v. State of Maharashtra and Ors., (2001) 4 SCC 534.
95
Jagadesan v. State of Tamil Nadu, (2015) SCC OnLine Mad 3721.
96
Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (1996) 1 SCC 642.
97
Balram Kumawat v. Union of India, (2003) 7 SCC 628.
98
Consumer Online Foundation v. Tata Sky Ltd., (2011) SCC OnLine CCI 12.
99
Meru Travel Solutions Pvt. Ltd. v. M/S ANI Technologies Pvt. Ltd., (2016) SCC OnLine Comp AT 192.
100
State of Andhra Pradesh v. Modern Proteins Ltd., (1994) Supp (2) SCC 496.
15 | P a g e
it101. Moreover, the explanation of §4(2) states that: “…enjoyed by an enterprise in the
relevant market.” It is understandable that the use of the article ‘an’ recognizes the
dominance of only a single entity. Jurists warn that a departure from the literal construction
outside the recognised limits in the guise of liberal or strict construction leads to unwarranted
expansion or restriction of the meaning of words102.The usage of the singular form of
“enterprise” with “an” is testimony to the inclusion of only a single entity within the purview
of the Section.
b) Legislative intention behind the Amendment Bill, 2012:
The Bill states that §4 should be extended by preventing any enterprise or group, “jointly or
singly”, to abuse its dominant position103. This proposal in the bill is testimony that there was
no existence of the joint or collective dominance by the enterprises. The issue of collective
dominance was aimed to be dealt with in the Indian jurisprudence by including the words
‘jointly or singly’ to the Section, however, the Standing Committee Report 104 on this subject
stated that “considering the fact that India’s competition regime is at a nascent stage, the
proposed amendment to include the concept of joint dominance in § 4 of the Competition Act
should be reconsidered by the Government.”This Hon’ble Court had observed that in order to
ascertain the true meaning of ambiguous words in a statute, reference to the reports and
recommendations of the Commission or Committee which preceded the enactment of the
statute are held legitimate external aids to construction 105. Thus, the report of the Standing
Committee holds value in scrutinizing the Bill intended to be passed. Thus, the above
arguments conclusively establish that the act in its scope under §4 does not deal with the
concept of collective dominance.
[1.3.] NO PRESENCE OF ALLEGED CARTELIZATION.
It is submitted that the basic requirement for the existence of collectively is that the
undertakings must be connected with sufficiently strong economic links, which enables them
to act or present themselves as a collective entity with common policy in the relevant
market106.
101
Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, AIR 1961 SC 1325.
102
G.P. Singh, Principles of Statutory Interpretation 92 (5th ed, EBC 2012).
103
Competition (Amendment) Bill 2012.
104
id.
105
R.S. Nayak v. A.R. Antulay, (1984) 3 SCC 86.
106
27/76, United Brands Co. v. Commission, 1978 E.C.R. 207.
16 | P a g e
The respondents were not connected with any economic links whatsoever. Moreover,
agreements between the ISOs and the respondents were done as a part of business strategy to
get special services in order to cater customers’ interest. Also, there were several other
console manufacturing companies available in the market. This shows that there was neither
any economic link between them nor a common policy which would portray them as
collective entity; rather there was substantial difference in their working.
In the Airtours judgment 107, the General Court elaborated on the application of the concept of
collective dominance to oligopolistic markets by way of three conditions:
a) Market transparency (common understanding of the position);
b) Mechanism of retaliation;
c) Lack of competitive pressure from outsiders to the oligopoly.
However, in the current case there is no such fulfilment of these conditions and hence,
disproving the existence of collective dominance. This is proved as follows:
(a) Market Transparency -In simple terms, it is common understanding of the position.
Market transparency functions in two ways. First, it allows a mutually beneficial market
strategy to be identified. Its second function is, to enable firms to monitor adherence to
common policy108.
(b) Mechanism of Retaliation- Existence of credible deterrent mechanisms is sufficient to
establish the condition of retaliation109. In the present case, though there were several
mechanisms, these were in no way deterrent in nature and were brought for technological
innovation and advancement.
Innovation is the foundation of economic progress110. Moreover, providing customer with

seal of approval on servicing was a part of business strategy and is reasonable in nature, as
the step was taken to tackle the problem of counterfeiting.
[1.4.] HIGH MARKET SHARE DOES NOT LEAD TO COLLECTIVE DOMINANCE.
Market share is of considerable importance when evaluating the market power of the
undertakings, consequently examining the existence, creation or strengthening of a dominant
107
T-342/99, Airtours plc v. Commission of the European Communities, 2002 E.C.R. II-2585.
108
Okeoghene Odudu,Collective, Dominance Clarified? 63(1) Cam. L.J. (2004).
109
C-413/06, P Bertelsmann and Sony Corporation of America v. Independent Music Publishers and Labels
Association, 2008 E.C.R. I-495.
110
Smriti Parsheera, Ajay Shah & Avirup Bose, Competition Issues in India’s Online Economy , 194 NIPFP
(2017).
17 | P a g e
position111. The thumb rule for indication of dominance is that when the market share is
greater than 50%, there is a presumption of dominance but when it is greater than 70%, there
is a clear indication of dominance112.
In the recent case113 in 2018, CCI held that while market share is theoretically an important
indicator for lack of competitive constraints, it is not a conclusive indicator of dominance.
Market share of more than 50% does not lead to a presumption of dominance, especially
when the Act prescribes no numerical threshold for presumption of dominance114.
Further, it is to be noted that when two undertakings in the same market have significant
market share (leading to market power) it is symbolic of a vibrant and fierce competition in
the market. This implies that there is a constant tussle to acquire more market power. To
substantiate this, it would be strange if competition law mandates firms should behave
irrationally, by not acting in parallel, in order to be found to infringe the law115.
Thus, in the present scenario though the collective share of respondents is of 54.5%, but that
is not the sufficient indicator for the existence of collective dominance. For instance, the
Court of Justice (CJ) has addressed that a market share of two undertakings of approximately
60% cannot of itself point conclusively to the existence of a collective dominant position116.
[1.5.] INGREDIENTS FOR ‘ABUSE’ OF MARKET NOT FULFILLED.
It is humbly submitted that there has been no abuse of collective dominance by the
respondents. It is to be noted that the concept of abuse is an objective concept 117, relating to
the behaviour of an undertaking in a dominant position118. Objective concept deals with the
concept of intent which proves the abuse of dominance 119. There was not such intent of the
respondents which proves that there was abuse done by them. Evidences point out to the fact
that there was intention of competition amongst themselves by adopting the similar policies
to survive the cut-throat competition; rather than forming joint dominance and abusing the
same. In addition, none of the ingredients under Article 102 of TFEU 120 which deals with
abuse are proved in the given case. Abuse of collective dominance consists in:
111
27/76, United Brands Co. v. Commission, 1978 E.C.R. 207.
112
T-30/89, Hilti A.G. v. Commission of the European Communities, 1991 E.C.R. II-1439.
113
Meru Travel Solutions Pvt. Ltd. v. M/S ANI Technologies Pvt. Ltd., (2016) SCC OnLine Comp AT 192.
114
Fast Track Call Cab Pvt Ltd & Ors v. Ani Technologies Pvt. Ltd., (2015) SCC OnLine CCI 70.
115
Whish, Richard & Bailey David, Competition Law, 566 (7th ed. Oxford University Press 2012).
116
C-68/94 & C-30/95, French Republic and Société Commerciale des Potasseset de l'azote and Entreprise
Minière et Chimique v. Commission, 1998 E.C.R. I-1375.
117
Damien Gerard, Price Discrimination under Article 82 (2) (C) EC: Clearing up the Ambiguities, SSRN E.J.
118
Hoffmann-La Roche & Co. AG v. Commission, 1979 E.C.R. 461.
119
C-62/86, A.K.Z.O. v. Commission, 1991 E.C.R. I-3359.
120
EC Treaty TFEU, art. 102.
18 | P a g e
 Applying dissimilar conditions to equivalent transactions with other trading parties,
thereby placing them at a competitive disadvantage;
 limiting production, markets or technical development to the prejudice of consumers;
 Directly or indirectly imposing unfair purchase or selling prices or trading conditions.
(a) Application of dissimilar conditions to equivalent transactions with other trading
parties:
The legal definition of price discrimination in Art 82(c) 121 refers to the application of
“dissimilar conditions to equivalent transactions with other trading parties, thereby placing
them at a competitive disadvantage”122. However, the same is not applicable for the current
context. The policies introduced by the respondents, in no way, proved disadvantages for the
customers. This strategy was both lucrative for the customers and propitious for the
respondents and leading to a win-win situation for both.
(b) Limitation of market and technical development to the prejudice of consumers:
There is a legal test using “limiting” rivals’ possibilities and causing consumer harm in the
Community Law. Harm to consumers is mentioned specifically in Art 82(b) 123 which
prohibits: “the limitation of production, markets or technical development to the prejudice of
consumers”. To sustain and remain relevant in the market and to cater to people’s needs
innovation and technical advancement is the basic necessity 124. Thus, the above arguments
show that respondents were not abusing their position in any way.
[2.]THAT THE AGREEMENTS BETWEEN THE MANUFACTURERS AND THE

INDEPENDENT SERVICE PROVIDERS ARE NOT ANTI-COMPETITIVE IN
NATURE.
It is humbly submitted that Section 3(1) 125 of the Act provides that any agreement which
causes or is likely to cause appreciable adverse effect on competition shall be void. Section
3(4)126 of the Act provides that any agreement amongst persons or enterprises at different
levels of the production chain shall be in contravention of Section 3(1) if it causes or is likely
to cause AAEC.
121
EC Treaty TFEU, art. 82 § (c).
122
Geradin and Petit, Price Discrimination under EC Competition Law: The Need for a case-by-case approach,
07/05 GCLC W.P.S.
123
EC Treaty TFEU, art. 83 § (b).
124
Smriti Parsheera, Ajay Shah & Avirup Bose, Competition Issues in India’s Online Economy, 194 NIPFP
(2017).
125
126
19 | P a g e
[2.1.] THAT THE AGREEMENT ITSELF IS NECESSARY AND HAS THE ABILITY TO
PROMOTE COMPETITION IN THE MARKET.
The Circuit Court of US127 have held that where organizations in good faith have freely
adopted their own equipment rules and then freely entered into exclusive contracts with the
respective suppliers, the resulting exclusive contract does not violate the antitrust laws, even
if the supplier has a high market share and offers money for the exclusivity. It has been
appropriately explained that the competition to be an exclusive supplier may constitute “a
vital form of rivalry, and often the most powerful one, which the antitrust laws encourage
rather than suppress.”128 Further, the terms and conditions are formulated in order to cater to
the existing customer base. There were multiple complaints relating to counterfeit products
being used by ISOs and this led to the disintegration of the consoles. In order to retain their
customer base, it becomes imperative for the manufacturers to prioritize quality assurance.
Thus, it is contended that the agreement in question has been formulated based on such
market considerations.
[2.2.] THAT THE CLAUSE STIPULATING EXCLUSIVITY IS PRO-COMPETITIVE AND IS NOT

LIKELY TO HAVE ADVERSE EFFECT ON THE COMPETITION.
It is humbly submitted that the clause stipulating that the service providers exclusively deal in
the servicing of the company’s console is a necessary exclusive supply agreement having
pro-competitive effects. Further, it is not likely that the said clause will have any adverse
effect on competition that is not more than compensated by the pro-competitive effects that is
generated. The legitimacy of a vertical restraint has to be having due regard to business
requirements, the probable development of industry, consumer demands, and other
characteristic of the market129. Therefore, existence of legitimate business justifications for
the legality of a contract has been recognized 130. A balance has to be drawn between risks of
inefficiency and poor quality of service. Since the manufacturing market is oligopolistic, each
manufacturer needs to capitalize on economies of scale available to him. The dealers carry
the weight of protecting the manufacturers’ reputation, goodwill and thereby their future
market performance. The system of approval ensures that the quality of service provided to
the consumer is not compromised while ensuring that the manufacturer’s reputation remains
intact.
127
Menasha Corp. v. News America Marketing In-Store, Inc., 354 F.3d 661 (7th Cir. 2004).
128
Paddock Publishing, Inc. v. Chicago Tribune Co., 103 F.3d 42 (7th Cir. 1996).
129
D.P Mittal, Competition Law and Practice 409 (2nd ed. 2007).
130
Barr Labs, Inc. v. Abbott Labs, 978 F.2d 98 111 (3rd Cir. 1992).
20 | P a g e
Further, it is submitted that the indispensability test has been used to justify vertical restraints.
In order for a restraint to be indispensable it must be demonstrated why seemingly realistic
and significantly less restrictive alternatives would be significantly less efficient. 131. In the
instant case, the console manufacturers have entered into agreements with the independent
service operations. Therefore, the manufacturers are aware of the capacity of the service
providers. Considering the sensitive nature of the industry concerned, it is submitted that the
customers are better off in a system where compliance can be guaranteed.
It is humbly submitted that the USSC has held 132, “the purpose of the Sherman Act is not to
restrict the long recognized 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
deal133. An undertaking has freedom to choose customers, the circumstances and conditions to
deal with; it also has the right to refuse to supply its production in its business interest 134. In
the instant case, it is contended that natural entry barriers inherent to the industry exist in the
form of high capital investment, R&D and reputation. An enterprise which overcomes these
natural barriers has the potential to compete effectively in the market. In the present case,
simultaneous penetration of the aftermarket for services is unnecessary. The presence of
varied distribution formats such as ISOs, who may want to become ASCs, ensures that no
additional cost is accrued by competitors. Further, there is no anti-competitive foreclosure in
the aftermarket that is likely as the criteria to become a multi-brand dealership are solely
determined on objective grounds. Therefore, in the absence of any anti-competitive effects,
the autonomy of the console manufacturers must not be interfered with.
[2.3.] THAT ISOS DECLINE IN BUSINESS IS NOT INDICATIVE OF THE ANTI-COMPETITIVE

NATURE OF THE AGREEMENT
It is humbly submitted that an enterprise is not to be condemned of undue restraints because it

may affect changes in the market conditions135, where the change would be in mitigation of
recognized evils and would not impair, but rather foster fair competitive opportunities 136. The
question is one of intent and effect, not to be determined by arbitrary assumptions, but by
close scrutiny of the particular conditions and purpose of each case 137. In the instant case, in
131
Commission Notice, Guidelines on Vertical Restraints, ¶125, available at
http://ec.europa.eu/competition/antitrust/legislation/guidelines_vertical_en.pdf .
132
United States v. Colgate & Co., 250 U.S. 300 (1919).
133
Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2011 U.S. Dist. LEXIS 48847.
134
Southern Pac. Communications Co. v. AT&T, 740 F.2d 980 (D.C.Cir. 1984).
135
136
id.
137
id.
21 | P a g e
order to be a competitive player in such an industry, assimilation of reliability becomes the
primary requirement. For such reliability to be acquired, the highest possible quality standard
must be assured. It is contended that the manufacturing market and aftermarket are
interlinked. The business strategy of the upstream market is bound to influence the
downstream market. A downstream market must be flexible enough to adapt these changes.
The introduction of this new system has only intensified existing competition. The emergence
of an additional distribution format has created competition among the service providers to be
a part of that format and those outside the format to ensure that they remain competitive. The
ISOs losing out on buyer loyalty may not be attributed to the acts of the console
manufacturers. Therefore, a decline in ISOs business or an increase in the market share of the
ASCs cannot be taken to be indicative of the anticompetitive nature of the agreement.
[2.4.] IN ARGUENDO, THE CONSOLE MANUFACTURING COMPANIES HAVE NOT ABUSED

THEIR ‘COLLECTIVE DOMINANT POSITION’ IN VIOLATION OF SECTION 4138.
It is humble submission of the Appellants that the console manufacturing companies cannot
be charged with having abused their collective dominant position as the concept of Abuse of
Collective Dominance was not in existence both during the period when the alleged
anticompetitive practices alleged in the complaint are said to have taken place and the period
taken up for investigation by the DG. Therefore the decision of the CCI stating that this
concept of collective dominance not being there in India holds great value 139.It is further
contended before that the console manufacturing companies cannot be charged with abuse of
collective dominance as the Amendment Act makes no reference to it being retrospective or
clarificatory. Therefore, no charge of abuse of collective dominance can be made out against
the console manufacturers and they cannot be charged with the same.
[2.5.] ESSENTIAL FACILITIES DOCTRINE NOT VIOLATED.
It is humbly submitted before the Hon’ble Commission that the console manufacturers have
not violated the essential facilities doctrine by restricting the servicing to exclusive ASCs.
The most important case concerning ‘essential facilities’ is the Oscar Bronner case 140. The
ECJ when asked for a preliminary ruling in stated four factors which should exist for a refusal
to be an abuse, and the same has been proved by the respondent:
138
Competition Act, 2002, § 4.
139
N Sanjeev Rao and Mrs. Fatima Tahir v. Andhra Pradesh Hire Purchase Association, (2013) SCC OnLine
CCI 7.
140
C-7/97, Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs, 1998 E.C.R. I-7791.
22 | P a g e
a) Refusal would have to be likely to eliminate all competition in the downstream
market from the person requesting access: It is humbly submitted that the step taken by
the companies will not eliminate competition in downstream market as they are not in a
dominant position and multiple companies are present in the market for the ISOs to
continue their business. The ISOs also have the option to become ASCs and exclusively
deal with the company’s console if they choose to do so.
b) Refusal must be incapable of objective justification: The refusal to allow ISOs to

service their products is based upon the fact that the company faced multiple complaints
from its consumers regarding counterfeit products being used for servicing the consoles
which ultimately led to the crashing of the consoles and led to loss being faced by the
companies.
c) Access to the facility must be indispensable to carrying on the other person’s
business: The ISOs have the console servicing market from other manufacturers and do
not fully depend upon Umbrella for the servicing of the consoles. And one company
bringing the exclusivity clause in its aftermarket servicing will not harm the market,
provided it is in a non-dominant position, as is in this case.
d) There must be no actual or potential substitute for it: In this case, it is clearly
understood that there are multiple players in the market for console manufacturing and
hence there are multiple substitutes available to the ISOs to deal with. Moreover as
mentioned above the ISOs are free to turn to ASCs to deal in the servicing of consoles
manufactured by the two companies.
Therefore it is humbly submitted that there would be a “reduction of the incentive to invest to
essential facilities” if an enterprise is required to share them with all competitors and that the
interest of Article 82 is to protect the interests of consumers rather that the interest of
competitors141.It is humbly submitted to the Hon’ble Commission that the invocation of this
doctrine can have several deleterious effects and that it is under theorized and unarticulated,
and this can be proved in the following four principles142:
a) Dynamic efficiency-The doctrine greatly undermines dynamic efficiency in that it reduces

the incentive to innovate because dominant undertakings can be compelled to share the
141
id.
142
M. Lao, Networks, Access, and Essential Facilities: From Terminal Railroad to Microsoft, 62 SMU. L. Rev.
557, 558 (2009).
23 | P a g e
fruits of their innovations with competitors who lack the technological prowess to make
those innovations143.
b) Fear of collusion - Competition law, in general, is averse to the idea of cooperation
between competitors. This doctrine, on the other hand, necessitates cooperation which, the
argument goes, could lead to the creation of larger, and potentially more destructive,
monopolistic structures that could undermine, as opposed to reinforcing, the vitality of
competitive forces.
c) Lack of uniformity in implementation - There is considerable divergence in the
implementation of the doctrine by courts across the globe in some cases it involves
hundreds of parties whereas others just two. Some courts adopt a narrow interpretation of
the doctrine whereas others impose a broad duty to deal on the dominant undertaking.
d) Powers of sectoral regulators - Finally, it is argued that sectoral regulators have
sufficient power to rectify problems of this nature; there is no need for the competition
regulator to dabble into these issues.
Therefore, it is believed that there is no workable model of the doctrine that can be imported
into India.
143
E. Elhauge, Defining Better Monopolization Standards, 56 Stan. L. Rev. 253, 300 (2003).
24 | P a g e
PRAYER
Wherefore, in light of the facts of the case, issues raised, arguments advanced and authorities
cited, this Hon’ble Commission may be pleased to adjudge and declare that:
CASE NO. 76 OF 2018
1. The agreement between the respondents is not anti-competitive.

2. The respondents have not abused its position in the market for manufacture and sale
of gaming consoles by denying access to the market.
CASE NO. 1 OF 2019
3. The respondents have not become collectively dominant in the market.

4. There was not an abuse of collective dominance by the respondents.
And any other relief that the Hon’ble Court may be pleased to grant in the interest of
JUSTICE, EQUITY AND GOOD CONSCIENCE, all of which is respectfully submitted.
SD /-
Counsel for Respondents
25 | P a g e

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TEAM CODE: T-12

3rd TNNLU-CCI NATIONAL MOOT COURT COMPETITION, 2020

THE COMPETITION COMMISSION OF IMARTI

CASE NO. 76 0F 2018 UNDER SECTION 19 OF THE IMARTI COMPETITION

ACME PRIVATE LIMITED...........................................................................…INFORMANT

UMBRELLA PRIVATE LIMITED & EPOC GAMES PRIVATE

CASE NO. 01 0F 2019 UNDER SECTION 19 OF THE IMARTI COMPETITION

INDEPENDENT SERVICE OPERATIONS............………………………... INFORMANT

UMBRELLA PRIVATE LIMITED, ACME PRIVATE LIMITED&

UPON SUBMISSION TO THE HON’BLE COMPETITION COMMISION

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS

[1.] THAT THE AGREEMENT DATED 9/5/2015 WAS NOT ANTI-COMPETITIVE

[1.3.] That Exclusivity Agreements Constitute A Common Practise In The Market

[2.] THAT THE RESPONDENTS DO NOT ENJOY A DOMINANT POSITION IN

[2.2.] Umbrella Is Not Dominant In The Identified Relevant Market...........................9

[3.] IN ARGUENDO, THE ALLEGED ACTS OF UMBRELLA INC. DO NOT

[3.1.] Holding A Dominant Position In A Market Is Not Per Se Bad.........................12

[3.3.] The Alleged Conduct Of The Respondents Is “Competition On Merits” And

[3.4.] No Injury Caused To ACME.............................................................................15

[4.2.] No Presence Of Alleged Cartelization...............................................................17

[4.3.] High Market Share Does Not Lead To Collective Dominance..........................19

[4.4.] Ingredients For ‘Abuse’ Of Market Not Fulfilled..............................................20

[5.] THAT THE AGREEMENTS BETWEEN THE MANUFACTURERS AND THE

[5.3.] That ISOs Decline In Business Is Not Indicative Of The Anti-Competitive

[5.5.] Essential Facilities Doctrine Not Violated.........................................................24

Balram Kumawat v. Union of India, (2003) 7 SCC 628..........................................................16

Jagadesan v. State of Tamil Nadu, (2015) SCC OnLine Mad 3721........................................16

R.S. Nayak v. A.R. Antulay, (1984) 3 SCC 86........................................................................17

Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, AIR 1961 SC 1325........................17

Vishal Gupta v. Google LLC, (2018) SCC OnLine CCI 56......................................................4

Competition Act, 2002, § 19(3).............................................................................................1, 5

Competition Act, 2002, § 19(4)(h)...........................................................................................10

Competition Act, 2002, § 19(5).................................................................................................8

Competition Act, 2002, § 19(6)(f).............................................................................................8

Competition Act, 2002, § 19(6)(g).............................................................................................8

Competition Act, 2002, § 2(s)....................................................................................................8

Competition Act, 2002, § 2(t)....................................................................................................8

Competition Act, 2002, § 3(1).................................................................................................21

Competition Act, 2002, § 3(4).............................................................................................1, 21

Competition Act, 2002, § 4(1).............................................................................................7, 16

Competition Act, 2002, § 4(2)...................................................................................................8

Competition Act, 2002, § 4(4)...................................................................................................7

Competition Act, 2002, § 4......................................................................................................24

Competition (Amendment) Bill 2012......................................................................................17

Determination of Cost of Production Regulations 2009, § 3(1)..............................................13

EC Treaty TFEU, art. 102........................................................................................................10

EC Treaty TFEU, art. 82 § (c)..................................................................................................20

EC Treaty TFEU, art. 83 § (b).................................................................................................20

Sherman Act,, § 1 (1890)...........................................................................................................3

Competition Issues Related to Sports, supra note 152, at 76.....................................................5

European Commission Guidelines on Vertical Restraints, 2010 O.J. (C 130) 1.......................5

Guidance on Article 102 Enforcement Priorities in Applying Article 82 EC Treaty to Abusive

Books and Law Journals

Commission, Guidance on the Commission's enforcement priorities in applying Article 102

F. Wijckmans, and F. Tuytschaever, Vertical Agreements in EU Competition Law 106 (2nd

G.P. Singh, Principles of Statutory Interpretation 92 (5th ed, EBC 2012)..............................17

Okeoghene Odudu, Collective Dominance Clarified? 63(1) Cam. L.J. (2004).......................18

R Posner, Antitrust Law, 11 (2nd ed. 2001)..............................................................................5

Galarza Andrés Dziadykiewicz, Exclusive Distribution: An overview of EU and National

American Tobacco Company v. U.S., 328 U.S. 781 (1946)....................................................14

Appalachian Coals Inc. et al v. United States, 288 U.S. 344 (1933)...............................2, 3, 23

Crawford v. Spooner, (1846) SCC OnLine PC 7.....................................................................16

Digital Equipment v. Uniq Digital Technology, 73 F.3d 756..................................................11