ARGUMENTS ADVANCED

I. WHETHER THE CONDUCT OF BRAVO CONSTITUTES AN ABUSE OF

DOMINANT POSITON?

1) It is submitted that Bravo is not dominant in the relevant market of “sale and purchase of
VR Games” and to substantiate the aforementioned argument the Opposite Parties make a
threefold submission. [A] Relevant is the market for VR games store in Eyzar [B] Bravo
is not dominant in the relevant market. [C] In arguendo, Bravo has not abused its
dominant position

A. RELEVANT MARKET IN THE PRESENT CASE IS THE MARKET FOR “VR

GAME STORES IN EYZAR

2) It is humbly submitted that for the purpose of determining the market power of an entity
or a group under S.4 of the Act, it is essential to delineate the relevant market 1in which
the enterprise or group is operating. The relevant market is the area of effective
competition within which the defendant resides. 2 It is important to define the relevant
market because it helps in identifying a systematic way the competitive constraint that the
undertaking faces.3 It is an economic concept.4
3) Relevant market in common parlance refers to the market where competition takes
place.5It is an area of effective competition 6 whose objective is to identify competitive
constraint.7It can be defined with reference to relevant product market 8 and relevant
geographic market.9

 The relevant product market

1
Competition Act, §2(r).
2
Standard Oil Co of California and Standard Stations Inc v. United States, 337 US 293.
3
European commission definition on relevant market, 2
4
Competition Commission of India v. Coordination Committee of Artistes and Technicians of West Bengal Film &
Television, (2017) 5 SCC 17.
5
United States v. EL Du Pont De Nemours & Co, [1956] 351 US 377.
6
MA Utton, Market Dominance and Antitrust Policy (2nd ed. Edward Elgar Publishing 2003)
7
ibid
8
Competition Act, §2(t)
9
Competition Act, §2(s).
 4) It is humbly submitted that the relevant product market can be defined as a market
comprising all those products or services which are regarded as interchangeable or
substitutable by the consumer, by reason of the characteristics of the products or services,
their prices and intended use.10 For determining a dominant position the identification of
a relevant product market becomes very crucial 11 as it is within the defined relevant
market that the competitive effect of a particular business conduct is to be assessed. 12
5) It is submitted that in the present case, there does not exist a separate primary and
secondary market for VR Game Stores and the relevant product market in the present
case is the market for VR game stores. Perusal of the law laid down in the case of Trend
Electronics v. Hewlett Packard Sales Pvt. Ltd. 13, the CCI in this case did not agree that
there is a separate aftermarket and therefore the relevant market cannot be delineated into
a primary or a secondary market.
6) Further, It has to be determined after taking into consideration the factors enunciated
under §19(5). 14Further, the demand and supply substitutability of the product/service are
also decisive factors15 in determining the relevant product market.
7) Moreover, It is submitted that while determining the “relevant product market”, the
commission has due regard to the substitutability test 16 wherein the relevant market is
determined based on the substitutability of the goods or services which the enterprise
offers.
8) It is submitted that the Bravo, is an enterprise 17 which provides a platform for the users to
purchase and stream VR games on its store. It also provides a platform for Game
manufacturers to sell their games. Further, the Informants, namely Kazek and Nexia are
also engaged VR game stores which provide the users the facility to purchase and stream
VR games online. It is further submitted that, in the VR gaming industry purchasing and

10
Competition Act, §2(t).
11
Europemballage and Continental Can Company Inc. v Commission of the European Communities [1973]
EUECJC-6/72
12
4CCI v. BhartiAirtel, AIR [2019] SC 113.
13
Trend Electronics v. Hewlett Packard Sales Pvt. Ltd., Case No. 92/2015.
14
Competition Act,§19(5).
15
European Commission Notice on the definition of relevant market for the purposes of Community competition
law (97/C 372/03)
16
17
Competition Act,§ 2(h)
 streaming/playing are both essential services as the games need a game store which
provides a streaming service to be played on.
i. Relevant Geographic Market is Eyzar
9) It is submitted that the relevant geographical market in the instant case, ought to be taken
as the entire geographical region of the Union of Eyzar. 18 This is because, as per the
19
provisions of the Act, the Relevant Geographic Market comprises the area in which
conditions of competition are distinctly homogeneous and uniform.20
10) Additionally, for the purpose of the VR-Games market, the conditions of competition are
homogeneous pan-Eyzar and accordingly, the relevant geographical market in the instant
case ought to be taken as Union of Eyzar.

B. BRAVO IS NOT IN DOMINANT POSITION

11) The next stage of determining abuse of dominance is whether the concerned undertaking
is in a dominant position21 or has a substantial degree of market power in that relevant
market.22
12) The explanation to § 4 defines “dominant position” as the position of strength enjoyed by
an enterprise which enables it to operate independently of competitive forces prevailing
in the relevant market; or affect its competitors or consumers or the relevant market in its
favour.23
13) Further, the dominant position has to be tested based on the factors contained in § 19(4)
of the 2002 Act.24 Bravo submits that it is not placed in a dominant position for the
following reasons.
i. Bravo does not operate independently of the competitive forces prevailing in the
relevant market.
14) It is generally recognized fact that the market shares have little predictive power for
whether a firm has substantial market power.25 Moreover, the intention of the legislature
18
All India Online Vendors Association v. Flipkart India (P) Ltd., Case No. 20/2018 (CCI), 26.
19
Competition Act, §19(6).
20
Bijay Poddar v. Coal India Ltd, 291, Comp LR 208 (CCI).
21
Competition Act, §19(4).
22
Abir Roy, Competition Law in India: A Practical Guide (2nd ed. 2016) 158.
23
Competition Act, §4.
24
Competition Act, §19 (4).
25
William M. Landes & Richard A. Posner, Market Power in Antitrust Cases, 94 Harv. L. Rev. 937 (1981).
 has never been to prescribe market share as a conclusive test of dominance and the same
must be seen in conjunction with the other factors to assess the dominance of an
enterprise.26 Therefore, it is submitted that high market share of Bravo cannot be alone
contributed to establish dominance of it in the relevant market
15) Another factor is the size and importance of the competitors. 27 When considering the
market share of the enterprise under scrutiny, it is also necessary to consider the market
share of the competitors.28 It is an established principle that a firm would be able to
behave independently of Competitive forces,29 if it has acquired a position of strength as
compared to its competitors in the relevant market.30
16) In the instant case, the competitors of Bravo collectively control almost 40% of the
market in Eyzar.31 And therefore the size and importance of the competitors in providing
effective competition in the relevant market cannot be overlooked.
17) Thus, prima facie, no one can operate independently in such circumstances 32. Therefore,
it is submitted that Bravo is not in a position to operate independently of the competitive
market forces.
ii. There are no barriers to expansion.
18) When identifying possible barriers to expansion and entry it is important to focus on
whether rivals can reasonably replicate circumstances that give advantages to the
allegedly dominant undertaking.33 Since none of these barriers exist in the present case,
expansion by competitors can adequately restrain Bravo's services and price increases.
19) Further, barriers are imposed against Bravo as the IP’s have themselves engaged in
exclusive supply agreements with Mayham and Quantum Craft which have pre-installed
their game stores in the new AI-VR consoles, directly causing a threat to Bravo’s survival
in the market.

26
Sponge Iron Manufacturers Association v. National Mineral Development Corporation & Ors., Case No. 69/2012,
CCI.
27
28
Shivam Enterprises v.Kiratpur Sahib Truck Operators Co-operative Transport Society Ltd, 2015 Comp LR 232
[CCI].
29
Re Vishwambhar M Doiphode and Vodafone India Ltd, Case No 04/2016 [CCI].
30
Guidance on Article 102 Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary
Conduct by Dominant Undertakings, OJ 2009(C 45) 7.
31
DG Report
32
K. Madhusudhan Rao v. Lodha Healthy Constructions & Developers Pvt. Ltd., [2013] CCI 62.
33
DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses, available
at : http://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf.
 iii. No Dependence on Consumers .
20) Further, dominant position under §4 should be tested on the anvil of other factors like
countervailing buying power.34 The buyers have countervailing buying power because of
the competitive market.35In the instant case, as argued above, the presence of other
significant players in the identified market who produce close substitute to the Bravo’s
product ensure that the buyers are shielded from the significant price rise and exploitation
by the enterprise.
21) Therefore, presence of a network effect is not sufficiently enough to justify that the
consumers do not have a countervailing buying power. In essence, the consumers can
switch to the competitors since even Kazek and Nexia provide those services in the
relevant market which are substitutable in nature.
C. IN ARGUENDO, BRAVO HAS NOT ABUSED ITS DOMINANT POSITON
22) It is well settled principle that that dominance per se is not illegal. 36A finding that an
undertaking as dominant is not itself a recrimination. 37 For instance in the case of TAM
Media Research Private Limited,38 even though TAM had 100% market share, no abuse
was made.
23) It is submitted that the market practices of Bravo is incapable of any exclusionary effects
in the relevant market and instead, has several pro- competitive benefits as [i] The price
of the product is commensurate with its economic value, [ii] Bravo has not indulged in
practice(s) resulting in denial of market access, [iii] The current case falls within the
exception to Section 4(2) of the Act, and [iv] There is a ‘Competition On Merits’ Bravo
does not drive out the Existing Competitors.

i. The price of the product is commensurate with its economic value.

24) The ECJ in General Motors39 found that, monopoly pricing as an abuse could include the
imposition of a price which is excessive in relation to the economic value of the service
provided”. This was also upheld in British Leyland40
34
Coal India Ltd v. CCI & Bijay Poddar, Appeal No. 81/2014 [COMPAT].
35
Saurabh Tripathy v. Great Eastern Energy Corporation Ltd. Case No. 63/2014 [CCI].
36
Organisation for Economic Co-operation and Development, Reviews of Regulatory Reform: Regulatory Reform in
the Czech Republic 2001, p. 190.
37
Michelin v. Commission, 1983 ECR 3461.
38
Prasar Bharti (Broadcasting Corporation of India) v. TAM Media Research Pvt. Ltd., 2016 Comp LR 595 (CCI).
39
General Motors v. Commission, 1975 ECR 1367.
40
British Leyland Public Limited Company v. Commission, 1986 ECR 3263.
 25) In United Brands,41 , a twin test was laid down in order to determine excessive pricing 1)
Whether the difference between the costs actually incurred and the price actually charged
is excessive (Price-Cost Approach), and, 2) Whether a price had been charged which is
either unfair in itself or when compared to competing products.
26) It is most humbly contended that the informants has failed to satisfy the Price-Cost
Approach since the costs actually being incurred are commensurate with the price that is
being charged which is only INR 600 more than Kazek. Further, even the price being
charged is not excessive when compared to competing products considering that new
features were added in the product.42 Hence, the price might be unfair but not excessive
which regards to demand side aspect.43
27) Moreover, in cases involving exploitative abuse, the common feature for grounds of
intervention have been that the market is characterised by high entry barriers 44 or there
have been absence of credible threat against the position of the dominant firm. 45
Additionally, there is a risk of chilling innovation if an excessive price intervention
affects expected revenues and reduces the chances of successful R&D cost recovery.46
28) Therefore, where markets are contestable,47 excessive pricing should be of no concern to
a competition enforcer.48 The CCI has also held that excessive prices will not be self-
correcting only when there has been insulation from all possible competition. 49 In the
present case, since the market is relatively free from barriers, especially with respect to
expansion, price regulation is unnecessary.
29) In the present case, the price is not in excess of its economic value and subsequently not
unfair as Bravo has a vast consumer base due network effects which enhances a user’s
gaming experience by enabling it to play with his friends and other gamers online on the
platform of the service provider. In order to maintain this huge data base, which is
enriching consumer experience, the increased cost is essential to improve the service.
41
United Brands Company & United Brands Continental BV v. Commission, 1978 ECR 207.
42
Moot Proposition
43
Scandlines Sverige AB v. Port of Helsingborg, COMP/A 36.568/D3, [hereinafter, ‘Helsingborg’].
44
Google, FCA Dec. n°10-MC-01.
45
Grüne Punkt, EC Comm. Dec. 2001/463/EC.
46
Roundtable on Excessive Prices, DAF/COMP(2011) 18, OECD, available at :
http://www.oecd.org/daf/competition/abuse/49604207.pdf
47
Napp Pharmaceutical Holdings Ltd and Subsidiaries, CA98/2/2001, [2001] UKCLR 597..
48
Mark Furse, Excessive Prices, Unfair Prices and Economic Value : The Law of Excessive Pricing Under Article 82
EC And the Chapter II Prohibition, 4 EUR. COMPETITION J. 59 2008.
49
. Shri Shamsher Kataria v. Hona Siel Cars India Ltd., Case No. 03/2011, CCI.
 30) Further, excessive prices that raise a reasonable concern are those that occur in the
absence of effective competitive constraints. Where there is price discipline due to
competitive pressure the market should tend to self-correct and intervention would not be
justified.50
ii. Network effects cannot be construed as a form of market denial.
31) In consonance, network effects are assumed to be where the utility garnered from the use
of the product increases with the number of other users 51. These effects are created by
networks and are not mechanical.
32) While it is easy to influence such effects, network effects alone do not necessarily make
a market prone to single-firm monopoly and do not always create high barriers to
entry52.Given the present facts, it is contended that network effects cannot cause a denial
to market entry and hence will not foreclose the market for other players of the market.

iii. Bravo has not indulged in practice(s) resulting in a denial of market access.

33) Where a dominant enterprise undertakes any activity that results in denial of market
access to other competing firms, it is said to be abuse of dominance. Where unfair
conditions and prices as enshrined under Section 4(2)(a) causes obstructions and denied
access to other competitors in the market, it was said to be a violation of Section 4(2)(c)
of the Act as well.
34) Limitation of data transferability does not imply foreclosing competitors or causing
barriers to enter the market. In the present matter, it is contended that there is no
contravention of Section 4(2)(a) of the Act, thus contending that Bravo has not indulged
in any activity that results in market denial. Thus, it is contended that Bravo's actions
were purely based on protection of its own as well its consumers' interests and does not
amount to denying of market access to any player.

iv. The current case falls within the exception to Section 4(2) of the Act.

35) The UK Office of Fair Trading has recognized that there may be several ‘objective
justifications’ for prices that are apparently excessively high. Objective justification can

50
Ezrachi and Gilo, Excessive Pricing, Entry, Assessment and Investment : Lessons from the Mittal Litigation, 76
ANTITRUST L.J. 873 2009-2010.
51
Adi Ayal, Monopolization Via Voluntary Network Effects, 76 Antitrust Law Journal 799 (2010)
52
William J. Kolasky, Network Effects-A Contrarian View, 69 Mason Law Review 87 (2001).
 be divided into two kinds,53 1) Objective necessity defence; and, 2) Meeting competition
defence.
36) The Explanation to Section 4(2)(a) of the Act, provides an exception to unfair prices
which may be adopted to meet the competition. Therefore, where the alleged conduct was
done to meet competition, it cannot be regarded as unfair. 54 Due consideration is also
given to the need to recover large initial investments, intangible value and opportunity
costs.55 Further, when deviation of price from marginal cost is trivial, or simply reflects
certain fixed costs, there is no occasion for antitrust concern.56
37) In the present case, the abovementioned criterion is fulfilled by virtue of Bravo increasing
the subscription price due to cost incurred by it to improve the services it provide. If this
had not been done, Bravo would have been incapable to compete in the market, due to
which the alleged unfair pricing, falls within the purview of the exception.

v. There is a ‘Competition On Merits’ Bravo does not drive out the Existing
Competitors.

38) As per the US Antitrust Law, the general approach of the Courts is not to meddle with
vigorous price competition57 since this is the ultimate goal that antitrust aims to achieve
and any imprecision in the definition of pricing offenses would chill the competition
levels in the market and ultimately, harm the consumer welfare.58
39) In the instant case, there is a presence of effective competition in the market and therefore
no adverse effect on competition is caused. Moreover, if a practice were in response to
competition in a market where competitors are offering several separate products used
together as a system, it would only foster healthy competition on merits.

53
Luc Peeperkorn, Commission Publishes Discussion Paper on Abuse of Dominance, Directorate-General
Competition, Unit A-1, available at : http://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf.
54
ESYS Information Technologies Pvt. Ltd. v. Intel Corporation (Intel Inc.), Case No. 48/2011.
55
. Helsingborg, supra at
56
In Re : Neurontin Antitrust Litigation, 2013 WL 4042460.
57
Verizon Communications Inc. v. Law Offices of Curtis Trinko LLP., 540 US 398 (2004).
58
Daniel Crane, Multiproduct Discounting: A Myth of Non-price Predation, CHICAGO LAW REVIEW, 27 - 43
(2005).