TEAM CODE: T24

3RD TNNLU-CCI NATIONAL MOOT COURT COMPETITION, 

2020 

IN THE COMPETITION COMMISSION OF IMARTI 

CASE NO. 76/2018 & 1/2019

 IN THE MATTER PERTAINING

PERTAINING TO

CASE NO. 76 OF 2018

 ACME PVT. LTD. …INFORMANTS  

V.

UMBRELLA PVT. LTD. & EPOC GAMING PVT. LTD. …OPPOSITE PARTIES  

 clubbed  with

CASE NO. 1 OF 2019

INDEPENDENT  SERVICE  OPERATIONS   …INFORMAN  TS

V.

UBMRELLA PVT. LTD. &  OTHERS   …OPPOSITE  PARTIES  

WRITTEN SUBMISSIONS ON BEHALF OF THE INFORMANT 

 

3rd TNNLU- CCI NATIONAL MOOT COURT COMPETITION, 2020

[TABLE OF CONTENTS]

TABLE OF CONTENTS 

INDEX OF AUTHORITIES III

STATEMENT OF JURISDICTION IX

STATEMENT OF FACTS X
ISSUES RAISED XII

SUMMARY OF ARGUMENTS XIII

ARGUMENTS ADVANCED -1-

[ISSUE  1.]  WHETHER THE AGREEMENT BETWEEN UMBRELLA AND EPOC IS ANTI-

COMPETITIVE? 

[1.A.] That the agreement is an exclusive supply agreement

agreement -2-

[1.B.] That the agreement is an exclusive distribution agreement -3- 

[1.C.] That the agreement causes refusal to deal -3-

[1.D] That the agreement causes appreciable

appreciable adverse effect on -4-

competition

[1.D.i] That the agreement has foreclosed the competition -5-

[1.D.ii] That the agreement is driving existing competitors -6-

out of competition

[1.D.iii] T he
he restrictions imposed on Epoc doesn’t have any -6-

efficiency justifications

[ISSUE 2.]  WHETHER THE CONSOLE MAKERS HAVE ABUSED THEIR DOMINANT POSITION
UNDER SECTION 4 OF THE ACT?  -7- 
[2.A.] That home consoles forms a relevant market -8- 

[2.B.] That Umbrella was in a dominant position -9-

[2.B.i] That umbrella owns a significant market share -10-

[2.B.ii] That there was high level of vertical integration -11-

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[2.B.iii] That umbrella has created entry barriers -12-

[2.B.iv] That umbrella enjoyed superior economic -13-

 power including commercial

commercial advantages competitors -14-
advantages over competitors

[2.C.] That Umbrella abused its dominant position -15-

[2.C.i] That Umbrella caused denial of market access -16-

[ISSUE 3.]  WHETHER THE CONSOLE MAKERS HAVE ABUSED THEIR DOMINANT POSITION
UNDER SECTION 4 OF THE ACT? 

[3.A] That aftermarket services constitute a separate relevant -16-

 product market
market

[3.B] That the console makers were dominant in the aftermarket -17-

[3.B.i] That the console makers were collectively

collectively dominant -17-

[3.B.ii] that console manufacturers had the size and

resources of dominant entity -19-

[3.C] That the console makers abused their dominance under

Section 4 of the Act -20- 

[3.C.i] That Umbrella caused denial of market access -20- 

[3.C.ii] The console manufacturers used their dominance

in one market to enter another market -22-

[3.D] That the defence of Intellectual Property Right is not valid -23-

[3.E] That the console manufacturers

manufacturers cannot take the defence of

efficiency gain -24-

PRAYER FOR RELIEF XV

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[I NDEX OF AUTHORITY]

INDEX OF AUTHORITIES  

LIST OF CASES 

S. No. NAME OF THE CASE  CITATION  PAGE FOOTNOTE NO.

NO. 
1.  Amelo v. NV [1994] ECR I-1477 18 89

EnergiebedrijfIjsselmij
2.  Asmi Metal Products (P.) Case No. 72 / 2016 (Competition 8 36
Ltd. v. SKF India Ltd Commission of India)
3.  Aspen Skiing Co. v. Aspen 472 U.S. 585 20 101
Highlands Skiing Corp
4.  Brown Shoe Co. v. United 370 US 294 (1962) 16 78
States
5.  CBEM v. CLT and IPB (1985) ECR 3261 22 106
6.  CCI v. SAIL 
SAIL  (2010) 10 SCC 744 18 85

7.  Coal India Ltd. v. [2017] 77 taxmann.com 124 8, 15 37, 74

Competition Commission of (CAT)
India
8.  Commercial (1974) ECR 223 21 105
Solvents v. Commission
9.  Compagnie Maritime Belge [2000] ECR I-1365 18 90
Transports SA v.
Commission
10.  Consumer Online Case No. 2/2009 (Competition 18 86

Foundation v. Tata Sky & Commission of India)

Ors
11.  Consumers Guidance Case No. UTPE 99/2009 14 66
Society v. Hindustan Coca
Cola Beverages
12.  Dr. L. H. Hiranandani (appeal no. 19/2014) COMPAT 5 24
hospital v. Competition order
Commission of India & Ors.

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[I NDEX OF AUTHORITY]

13.  East India Petroleum Pvt. Case No. 76/2011 (Competition 7 33

Ltd. (EIPL) v. South Asia Commission of India)
LPG Company Pvt. Ltd.
14.  Eros International Media Case No. 52/2010 (Competition 4 22
Limited v. Central Circuit Commission of India)

Cine Association and others

15.  Europemballage [1973] ECR 215 9 40
Corporation and Continental
Can Company Inc. v.
Commission
16.  Explosive Manufacturers 2012 Comp LR 525 2
Welfare Association v. Coal (Competition Commission of
India Limited & its Officers India)
17.  Fast Track Call Cab (P.) 6 & 74/2015 (Competition 11 50
Ltd. & Meru Travels Commission of India)
Solutions (P.) Ltd v. ANI
Technologies (P.) Ltd
18.  Fortner Enterprises, Inc. v. 394 U.S. 495 (1969) 13 63
United States Steel Corp 
19.  France Telecom SA v. (2009) C-202/07 8 38
Commission
20.  Fx-Enterprise Solution v. Case Nos. 36 & 82/2014 19 92, 97
Hyundai (Competition Commission of

India)
21.  Hoffmann-La Roche & Co. [1979] ECR 461 13 61
AG v. Commission 
22.  HT Media Ltd v. Super Case No. 40/011 (Competition 9 44
Commission of India)
Cassettes Industries Ltd.
23.  Irish Sugar plc v. [1999] ECR II-2969 [46] 18 88
Commission
24.  Jeetender Gupta v. BMW Case No. 104/2013 (CCI) 10 47
India Ltd
25.  Jindal Steel & Power Ltd. v. [2012] 111 SCL382 (CCI) 14 67
Steel Authority of India

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[I NDEX OF AUTHORITY]

26.  Kapoor Glass Private Case No. 22/2010 (Competition 9, 10 45, 49

Limited v. Schott Glass
Commission of India)
India Private
27.  Los Angeles Land Co. v. 6 F.R.D. 1422 (9th Cir. 1993) 12 57
Brunswick Corp 
Corp 
28.  M/S Cine Prekshakula Case No. RTPE 16/2009 2 13
Viniyoga v. Hindustan Coca (Competition Commission of
Cola Beverages India)

29.  Mahindra & Mahindra Ltd. 1979 AIR 798 4 22

v. Union of India
30.  MCX Stock Exchange of Case No. 13/2009, (Competition 11 51
India Ltd. v. National Stock
Commission of India)
Exchange of India Ltd &
others
31.  Meru Travels Solutions (P.) Case No. 81/2015 (Competition 10 48
Ltd. v. Competition
Commission of India)
Commission of India
32.  Mr. Ramakant Kini and Dr. Case No. 39/2012 (Competition 16 77
L.H. Hiranandani Hospital, Commission of India)
Powai, Mumbai
33.   Nathu v. State [1958] AIR All 467 17 82
34.   NK Natural Foods (P.) Ltd. Case No. 74/2013 (Competition 15 76
v. Akshaya (P.) Ltd.
Commission of India)
35.  Oscar Brooner v. Media Print  ECLI:EU:C:1998:569  
C-7/97, ECLI:EU:C:1998:569 15 73
36.   In re PO Video Games Case 2003/675/EC 8 39
 
37. Radio Telefilms Eireann ECR 1995 I-00743 23 114
(RTE) and Independent
Television Publications Ltd
(ITP) v. Commission of the
European Communities
38.  Ram Niwas Gupta v. Omaxe Case No. 74/2011 (Competition 1 8
Ltd and Shanvi Estate Commission of India)
Management Servies (P) Ltd

39.  Re Phool Din & Ors [1952] AIR All 491 17 84

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[I NDEX OF AUTHORITY]

40.  S Sher Singh v. Raghu Pati [1968] AIR P&H 217 (India) 17
Kapur and Anr
41.  Shamsher Kataria v. Honda Case No. 03/2011 (Competition 14, 71, 79, 96
Siel Cars India Ltd. Commission of India) 16, 19
42.  Shri Ghanshyam Dass Vij v. Case No. 68/2013 (Competition 3 16, 20
M/s Bajaj Corp. Ltd. Commission of India)
Mumbai & others 
43.  Shri Neeraj Malhotra, Case No. 06/2009 14 65
Advocate v. North Delhi
Power Ltd. & Ors
44.  Surana And Surana v. Dell Case No. 29/2015 (Competition 9 42
India (P.) Ltd. Commission of India)
45.  Surrinder Brami v. BCCI Case No. 61/2010, (Competition 14 68
Commission of India)
46.  TELCO v. Registrar of (1977) 2 SCC 55 4 23
Restrictive Trade
Agreements
47.  Tetra Pak Rausing SA v. [1990] ECR II-309 19 95
Commission
48.  Toyota Kirloskar v. (60/2014) 16, 81, 108, 109,
Competition Commission of 22, 23 111, 112, 113
India
49.  United Brands v. (1978) ECR 207 21 103
Commission
50.  United States v. Dentsply 190 F.R.D. 140 (D.Del. 1999) 12 56
Intern., Inc. 
Inc. 
51.  United States v. Terminal 224 US 383 (1912) 21 102
R.R. Assoc.
52.  Vijay Gopal v. Inox Leisure Case No. 29/2018 (Competition 2, 14 12, 69
Ltd Commission of India)
53.  Vishal Pande v. Honda Case No. 17/2017 (Competition 2 14
Motorcycle & Scooter India Commission of India)
(P.) Ltd

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3rd TNNLU- CCI NATIONAL MOOT COURT COMPETITION, 2020

[I NDEX OF AUTHORITY]

54.  Volvo AB v. Erik Veng (238/87) EU:C:1988:477 23 115

(UK) Ltd

BOOKS 

•       UGAR    OMMENTARY ON   AW OMPETITION AW AND ONSUMER

1 SM D ,C MRTP L C L C
PROTECTION LAW, (Wadhwa And
And Company
Company 2006)
2006)

•   2 COMPETITION LAW IN I NDIA, ABIR R OY

OY AND JAYANT K UMAR 
UMAR , (Eastern Law House)

•   2 JONATHON FAULL AND ALI NIKPAY, THE EC LAW OF COMPETITION (Oxford)

•   4 ALISON JONES AND BRENDA SUFRIN (Oxford)

•   5 VAN BAEL & BELLIS, COMPETITION LAW OF THE EUROPEAN COMMUNITY ,

(Competition Law of The European Community)

  6 ARIEL EZRACHI, EU COMPETITION LAW (Hart Publications)

•   6 COMPETITION LAW MANUAL (Taxmann)

•   9 R ICHARD
ICHARD WHISH AND DAVID BAILEY, COMPETITION LAW (Oxford 2018)

•   BURHAN MAJID, COMPETITION LAW IN I NDIA 

•   GARY MIDDLETON AND BARRY J. R ODGER 

ODGER , CASES AND MATERIAL ON UK  AND
 AND EC 

COMPETITION LAW.

•   KK  SHARMA, GUIDE TO COMPETITION LAW.

•   R ICHARD
ICHARD WHISH & DAVID BAILEY, COMPETITION LAW (Oxford)

•   SANDRA MARCO COLINO, VERTICAL AGREEMENT AND COMPETITION LAW (Hart

Publishing)

•   T R AMAPPA
AMAPPA, COMPETITION LAW IN I NDIA: POLICY, ISSUES, A ND DEVELOPMENT 

(Oxford 2006)

STATUTES 

•   CLAYTON ACT OF 1914

•
  MONOPOLIES A ND R ESTRICTIVE
ESTRICTIVE TRADE PRACTICES ACT, 1969

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[I NDEX OF AUTHORITY]

 
• SHERMAN ACT OF 1890
 
• THE COMPETITION ACT, 2002
 
• TREATY O N THE FUNCTIONING OF EUROPEAN U NION, 1958
OTHER SOURCES 

  Commission Notice on The Definition of Relevant Market For The Purposes Of

•

Community Competition Law, OJEC, [C372/5], [C372/6], (1997), https://eur-

lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31997Y1209(01)&from=EN.
  EUROPEAN COMMISSION, Competition discussion paper on the application of Article
• Articl e 82
of the Treaty to exclusionary abuse
  EUROPEAN COMMISSION,
•

http://ec.europa.eu/competition/state_aid/legislation/block.html (last visited on

January 9,2020).
  EUROPEAN U NION,
•

http://europa.eu/documents/comm/green_papers/pdf/com96_721_en.pdf.
  Friedrich Kessler, Richard H. Stern, Competition, Contract, and Vertical Integration ,
•

69 THE YALE LAW JOURNAL.

  Michael H. Riordan, Competitive Effects of Vertical Integration , DISCUSSION PAPER
•

 NO.: 0506-11.
  R. Preston McAfee, Hugo M. Mialon, and Michael A. Williams,  Economic and
•

 Antitrust Barriers to Entry, 94 THE AMERICAN ECONOMIC R EVIEW

EVIEW.

  Treaty on the Functioning of the European Union Art. 102, 2008 O.J. C 115/47,
•

  Yen-Ting Lin, Ali K. Parlakturk, Jayashankar M. Swaminathan, Vertical Integration

•

under Competition: Forward, Backward, or No Integration?  23 PRODUCTION A ND

OPERATIONS MANAGEMENT SOCIETY.

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[STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION 

The Informants in both the cases have approached Competition Commission of Imarti under
§19(1)(a) of the Competition Act,2002.

The information in both cases has been consolidated and taken up together as per Regulation
27 of the Regulations.

The Commission ordered the DG to investigate under §26(1) of the Act read with Regulation
18 of the Competition Commission of India (General) Regulations, 2009.

The Commission has invited objections from both the parties on the DG report under §26(5)
of the Act.

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[STATEMENT OF FACTS]

STATEMENT OF FACTS 

BACKGROUND 

Epoc Games Private Limited 1, a video game developer, was incorporated in the state of Imarti
in 1984. It came up with two famous PC games- ‘Prince of Arabia’
Arabia’  and ‘Road Rush’
Rush’. To

 provide impetus to the growing industry, it provided open source

s ource codes for others to develop
games without infringing its Intellectual Property Rights. With the advent of home consoles,
Umbrella Private Limited 2 was incorporated in 1998 which manufactured the parts of consoles
and outsourced the games from game developers. In 1999, Umbrella launched a console
GameCast with Epoc’s exclusively licensed game ‘Mountain Run’,
Run’, priced at 15,000 INR, the
console was a huge success. Umbrella was also famous for its repair strategy of keeping the
technical know-how open which led to a new setup for Independent service operations 3. Market
share of Umbrella as of 2008 was 35%.

ACME’S E NTRY 

Acme Private Limited 4, established in 2008, was a new entrant into the console market. It
curated vintage games as its business strategy. It approached Epoc to create high quality
versions of Prince of Arabia and Road Rush with an exclusive license to them and launched
PlayBox. It was priced at 25,000 INR, higher than average of 20,000 INR. It was known for its
highly internalised repair strategy with trained engineers and environment friendly initiatives.
Market share of Umbrella and Acme as of 2013 were 33% and 22.2% respectively.

AGREEMENT BETWEEN UMBRELLA AND EPOC 

Consoles of Umbrella started facing various problems from incompatibility to counterfeit

marketing which led to drop in its market sales by 2015 at 30.5%. whereas that of Acme was
24.5%. Umbrella, taking cognizance of these issues puts a tight rein on its
it s propriety information
and develops a new generation console for which he approaches Epoc with an agreement
regarding development, revenue sharing, exclusive development and marketing, intellectual
 property, confidentiality, etc. Epoc finding these terms to be in his financial interest, accepted
and entered into it. Thereafter, Umbrella launched
l aunched GameCastXperience, at 32,500 INR, higher
than the average 26,000 INR. The henceforth repair service model was changed to highly

1
 Herein after Epoc.
2
3 Herein after Umbrella.
 Herein after ISOs.
4
 Herein after Acme.

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[STATEMENT OF FACTS]

internalised Umbrella Authorised Repair Centres. Umbrella console parts started coming with
a seal of authenticity for quality and counterfeit control. It also issued licenses to ISOs to
 become its Authorised Service Centres5  at the condition that they only service Umbrella
consoles and offer Epoc games for sales.

ACME’S CHALLENGE TO THE AGREEMENT 

Acme approached Epoc for the development of sequel of its game which is rejected by Epoc
on the ground of the aforementioned Agreement. He was turned to another developer. His
console PlayBox2 was though powerful, failed terribly. Due to this, Acme started losing market
share. Acme approached the Competition Commission of Imarti alleging Exclusive
Distribution Agreement between Epoc and Umbrella. Furthermore, they alleged that Umbrella
has abused its dominance in the console manufacture and sale market by denying access to
Acme to this market.

ISOS CHALLENGE

ISOs approached the Commission alleging collective dominance against the console
manufacturers being the sole repository of the information and denial of market access by the
ASCs to the ISOs.

DG R EPORT
EPORT 

DG submitted the report regarding the two cases. He found out that the said agreement was an
anti-competitive vertical agreement leading to denial of market access
acces s to the other competitors.
However, he denied that Umbrella had a dominant position in the market given large number
of players. He further, about the collective dominance, was of the view that this was the right
time and case to introduce the concept of collective dominance in Imarti’s Competition Law
Jurisprudence. Console manufacturers denied the said allegations on the ground of business
 protective conduct and in the interest of their Intellectual Property Rights.

STATUS QUO 

The Commission taking cognizance of the same forwarded the reports to the parties and listed
the matter for consideration. It invited the written and oral pleading on the behalf of Informants:
Acme and ISOs; and Opposite Parties: Umbrella, Epoc and Other Console Manufacturers.

5
 Herein after ASCs.

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[ISSUES R AISED
AISED]

ISSUES RAISED 

~ISSUE 1~

WHETHER THE AGREEMENT BETWEEN UMBRELLA AND EPOC IS ANTI-COMPETITIVE

UNDER SECTION 3 OF THE ACT?

~ISSUE 2~
 2~

WHETHER UMBRELLA ABUSED ITS DOMINANT POSITION IN THE MARKET UNDER SECTION
4 OF THE ACT?

~ISSUE 3~
 3~

WHETHER THE CONSOLE MANUFACTURERS HAVE ABUSED THEIR DOMINANT POSITION

UNDER SECTION 4 OF THE ACT?

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[SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS 

[ISSUE 1] WHETHER THE AGREEMENT BETWEEN UMBRELLA AND EPOC IS A NTI-COMPETITIVE

UNDER SEC 3 OF THE ACT? 

It is humbly submitted before the commission that the agreement between Umbrella and Epoc
is Anti-competitive under Section 3 of the Competition Act, 2002 because: [A] The agreement
contains an Exclusive Supply Agreement because of the Clause C of the agreement between
Umbrella and Epoc states that Umbrella will exclusively carry and market games developed
 by Epoc, making the agreement an exclusive supply agreement. [B] The agreement contains
an Exclusive Distribution Agreement as the terms of the agreement lay down that Epoc shall
have an exclusive relationship with Umbrella regarding the development and licensing of any
video games in Imarti, thereby restricting Epoc to license g
games
ames to Acme and other console
manufacturers except Umbrella , the agreement in the nature of an exclusive distribution
agreement. [C] The agreement causes Refusal to deal because the console manufacturers who
used to take Epoc’s services before the agreement could no longer avail it therefore causing
refusal to deal by Epoc due to the said agreement the to the existing as well as the new
competitors. [D] The collective effect of these factors leads to a strong agreement causes or
likely to cause AAEC

[ISSUE 2] WHETHER UMBRELLA ABUSED ITS DOMINANT POSITION IN THE MARKET UNDER

SECTION 4 OF THE ACT? 

It is humbly submitted before the commission that Umbrella abused its dominant position in
the market under Section 4 of the Competition Act, 2002 in the instant case because: [A] the
relevant market in the instant case is the market for manufacture and sale of consoles- the
demand-side substitutability of the consoles is inelastic due to factors like different
components, price difference, compatibility and the multi-tasking capabilities of the gaming
consoles. The supply side substitutability is also inelastic due to their distinct usage for gaming
 purpose unlike PCs and Laptops.
Laptops. [B] Umbrella was in a dominant position in the said relevant
market- It had the highest market share among its competitors. Umbrella was also heavily
vertically integrated and created technical entry barrier for the competitors by restricting
distribution of video games developed by Epoc. Umbrella also had commercial advantage over

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[SUMMARY OF ARGUMENTS]

its competitors because of which it was able to pay higher revenue share than its competitors.
[C] Umbrella abused its dominant position in the market- Umbrella denied market access to
Acme and other competitors by entering into an exclusive agreement with Epoc, restricting
access to video games developed by Epoc and Epoc’s expertise. It
expertise.  It further caused barrier to
entry to new entrants by such an agreement as Epoc’s resource, being superior, were restricted

to only Umbrella.

[ISSUE 3] WHETHER THE CONSOLE MANUFACTURERS HAVE ABUSED THEIR DOMINANT

POSITION U NDER SECTION 4 OF THE ACT? 

It is humbly submitted before the commission that the Console manufacturers abused their
dominant position under Section 4 of the Competition Act, 2002 because: [A] Aftermarket
services constitute a separate relevant product market- because there can be different
competitive constraints on the original equipment market and that of the spare parts leading to
the delineation of the markets. Hence, the ISOs are a separate relevant market. [B] The console
makers were dominant in the aftermarket- because the console manufacturers are collectively
dominant in the relevant market and that they have a size and resource of a dominant entity.
[C] The Console makers abuse their dominance under Section 4 of the Act because they are
denying market access to the ISOs by withholding the essential facility without which they
cannot function in the market and they used their dominant position in the primary market to
enter into the secondary market. [D] Furthermore, the defence of IPR taken by the console
manufacturers is not valid because there is not valid because it was not necessary to preserve
their rights and in case of conflict between the Competition law and IPR laws, the former shall
 prevail.

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[ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED 

[ISSUE 1] THE AGREEMENT BETWEEN EPOC AND UMBRELLA IS ANTI-COMPETITIVE 

[¶. 1] It is humbly submitted before the commission that the agreement between Epoc and
Umbrella is an Anti-competitive agreement. Section 3(1) read with section 3(2) of The
6
Competition Act 2002 , provides that any agreement which causes or is likely to cause
 for brevity  “AAEC”).7  is an anti-competitive
appreciable adverse effect on competition ( for
agreement and shall be void. Section 3(4) of the Act provides that any agreement amongst
 persons or enterprises at different levels
le vels of the production chain including agreements in the
nature of (a) exclusive supply (b) exclusive distribution and (c) refusal to deal, shall be in
contravention of Section 3(1) of the Act if they cause or are likely to cause AAEC.

[¶. 2] Section 3(4) of the Act envisages a vertical agreement among the enterprises or persons
entities operating at different stages or levels
l evels or production chain in different markets in respect
of production, supply, distribution, storage, sale or price of, or trade in goods and services.
Therefore, it is required to first identify “different stages or levels of production chain ” and
“different markets” before undertaking any further examination whether any vertical agreement
 between the two has caused an AAEC8 

[¶. 3] In the present case, Epoc is a game developer, while the Umbrella is a console
ma rkets are “the market for game development” and
manufacturer. Therefore, the different markets
“the market for console manufacturing”. Further, Epoc and Umbrella are at different stages or
levels of production, since Umbrella manufactures all parts of the console itself, but it is
dependent on Epoc for the game development.9 Therefore, the agreement entered into between

Epoc and Umbrella on 09.05.2015 is a vertical agreement in terms of provisions of Section

3(4) of the Act.

[¶. 4] Section 19(3) of the Act gives due regard to the following while determining the presence
of AAEC in any agreement viz., creation of barriers to new entrants in the market, driving
existing competitors out of the market, foreclosure of competition by hindering entry into the
market. In the present case, the agreement between Epoc and Umbrella is anticompetitive

6
 Hereinafter the Act.
7
 Hereinafter AAEC.
8
 Ram Niwas Gupta v. Omaxe Ltd and Shanvi Estate Management Servies (P) Ltd, Case no. 74
74/2011
/2011 (Competition
Commission of India).
9
 Moot Proposition ⁋6.
⁋6.

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[ARGUMENTS ADVANCED]

 because: [A]  The agreement contains an Exclusive Supply Agreement [B]  The agreement
contains an Exclusive Distribution Agreement [C] The agreement causes Refusal to deal [D] 
The collective effect of these factors leads to a strong agreement causes or likely to cause
AAEC.

[1.A] THAT THE AGREEMENT IS AN EXCLUSIVE SUPPLY AGREEMENT 

[¶. 5] The explanation to Section 3(4)(b) of the Act defines an exclusive supply agreement as
any agreement restricting in any manner the purchaser in the course of his trade from acquiring
or otherwise dealing in any goods other than those of the seller or any other person. The above
th at a wide meaning has to be given to its provisions. 10 The
definition is inclusive in nature and that
main element of the Exclusive supply hence, is that the supplier is induced or obliged to sell
the contacted products, for a general or particular use, mainly or exclusively to one buyer 11.
[¶. 6]  When the supplier holds significant market, power enters into exclusive supply
agreements with the purchaser to create barriers to entry for other suppliers can be seen as
12
exclusive supply agreement . Any such exclusive agreement which restricts the purchaser
from buying or procuring any goods or services for any other supplier is an anti-competitive
agreement, limiting the source of supply of goods and hence and thereby limiting the
competition13.
[¶. 7] In the case of Vishal Pande v. Honda Motorcycle & Scooter India (P.) Ltd 14, the
informant had to adhere to the exclusive supply agreement as a condition of dealership. The
clause also included refusal to deal where the informant was restricted by the OP to deal with
any other competing product without the prior approval of the OP. It was held that where there
is a de facto exclusivity, such a clause is faulted and hence an exclusive supply agreement.

[¶. 8] In the instant case, the Clause C of the agreement between Umbrella and Epoc, which
states that Umbrella will exclusively carry and market games developed by Epoc15, makes the
agreement an exclusive supply agreement. Here, the contracted product is the games developed
 by Epoc which is acquired by console manufacturer through licensing. This agreement has

10
 Explosive Manufacturers Welfare Association v. Coal India Limited & its Officers, 2012 Comp LR 525 (CCI).
11
 V AN BAEL &  BELLIS, C OMPETITION
OMPETITION L AW OF THE E UROPEAN OMMUNITY   169
UROPEAN C OMMUNITY   –  340,
169 –   340, (Competition Law of the
European Community (Fifth Edition) 2019), 5th edition.
12
 Vijay Gopal v. Inox Leisure Ltd, Case No. 29/2018 (Competition Commission of India).
13
 M/S Cine Prekshakula Viniyoga v. Hindustan Coca Cola Beverages, Case No. RTPE 16/2009 (Competition
Commission of India).
14
 Vishal Pande v. Honda Motorcycle & Scooter India (P.) Ltd, Case No. 17/2017 (Competition Commission of
India).
15
 Moot proposition ¶16.

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restricted Umbrella from licensing games from other developer and hence put this agreement
under the purview of exclusive supply agreement.

[¶. 9] Therefore, it is humbly submitted before the commission that the agreement contains an
Exclusive Supply Agreement.

[1.B] THAT THE AGREEMENT IS AN EXCLUSIVE DISTRIBUTION AGREEMENT 

[¶. 10] Explanation to Section 3(4)(c) of the Act defines “exclusive distribution
The Explanation
agreement” as any agreement to limit, restrict or withhold the output or supply of any goods
or allocate any area or market for the disposal or sale of the goods.

[¶. 11] In Shri Ghanshyam Dass Vij and M/s Bajaj Corp. Ltd. Mumbai & others 16  , CCI
observed that exclusive distribution agreement means an arrangement between the supplier and
distributor wherein the distributor sells the product/s within a defined area or to a particular
group/category of customers.

[¶. 12] Since the terms of the agreement lay down that Epoc shall have an exclusive relationship
relat ionship
with Umbrella regarding the development and licensing of any video games in Imarti, 17 thereby
restricting Epoc to license games to Acme and other console manufacturers except Umbrella 18,
the agreement in the nature of an exclusive distribution agreement as well.

[¶. 13] Therefore, it is humbly submitted before the Commission that the agreement contains
an exclusive supply agreement.

[1.C] THAT THE AGREEMENT CAUSES REFUSAL TO DEAL 

[¶. 14] Refusal to Deal includes any agreement which restricts, or is likely to restrict, by any
method the persons or classes of persons to whom goods are sold or from whom goods are
 bought.19 

[¶. 15] Again, in the Shri Ghanshyam Dass Vij and M/s Bajaj Corp. Ltd. Mumbai & others20,
the CCI noted that competition law issues with respect to refusal to deal/
deal/supply
supply will arise when
an enterprise, generally with stronger market power refuses to deal with its customers or

16
  Shri Ghanshyam Dass Vij v. M/s Bajaj Corp. Ltd. Mumbai & others, Case No. 68/2013(Competition
Commission of India).
17
 Moot Problem, ⁋10.
⁋10.
18
Proposition, ⁋  20.
 Moot Proposition, ⁋   20.
19
20 The Competition Act, 2002, §3(4) Explanation (d), Act No. 12 of 2003.
  Shri Ghanshyam Dass Vij v. M/s Bajaj Corp. Ltd. Mumbai & others, Case No. 68/2013(Competition
Commission of India).

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suppliers. The effect in such scenario is that the downstream market gets affected due to such
refusal.

[¶. 16] In the instant case, the agreement has restricted Epoc from developing and licensing
games for manufacturer other than Umbrella. Therefore, Epoc, which has best market
reputation and has fastest development process 21, thus giving it strong market power, has
refused to deal with other console manufacturers who till now were using its service for
development of game. The agreement also has restricted
restric ted Umbrella from marketing or carrying
out games developed by any other developer. Umbrella which has largest market share in the
gaming console market, and provides better gaming experience than other console makers
holds strong position in market, will refuse to deal with any other developer for marketing of
games because of this agreement.

[¶. 17] Therefore, it is humbly submitted before the Commission that the Agreement caused
refusal to deal.

[1.D] THAT THE AGREEMENT CAUSES APPRECIABLE ADVERSE EFFECT ON COMPETITION  

[¶. 18] There is no presumption with respect to vertical agreements under Section 3(4) that
anti-competitive effect on the market. Such agreements are subject
they have an anti-competitive su bject to the “rule of
reason””  analysis i.e. the positive as well as the negative impact of such agreements on
reason
competition will have to be taken into account before coming to any conclusion whether the
agreement is anti-competitive in terms of provisions of Section 3 of the Act.

[¶. 19] The rule of reason normally requires an ascertainment of the facts or features peculiar
to the particular business; its condition before and after the restraint was imposed; the nature
of the restraint and actual or probable and it is only on a consideration of all these factors that
it can be decided whether all particular act, contract or agreement, imposing the restraint is
unduly restrictive of competition so as to constitute restraint of trade. 22  The concept of
competition has to be understood in a commercial sense. 23 

21
 Moot Proposition ¶6.
22
 Eros International Media Limited v. Central Circuit Cine Association and others, Case No. 52/2010; Mahindra
& Mahindra Ltd. v. Union of India, 1979 AIR 798.
23
TELCO v. Registrar of Restrictive Trade Agreements, (1977) 2 SCC 55 .

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In Dr. L. H. Hiranandani hospital

[¶. 20] In Dr. hospital v. Competition Commission Orss 24 , the
Commission of India & Or  , the
CCI in this case held that the exclusive agreement entered into between Dr LH Hiranandani
Hospital and Cryobanks International India is a violation of Section 3 of the Act because it
causes AAEC. It was held that such exclusive agreement
agreeme nt was anti-competitive and even though
LH Hiranandani Hospital was not dominant in the relevant market

[¶. 21] In this case it is contended that the agreement of exclusivity between Epoc and Umbrella
causes or is likely to cause AAEC because [D.1] it has led to the foreclosure of competition by
hindering entry into the market. [D.2] it is driving existing competitors out of the market

[1.D.i] That the Agreement has foreclosed

foreclosed the competition

[¶. 22] Section 19(3)(c) of the Act makes foreclosure of competition as a factor of AAEC in
the market. By foreclosure is meant that actual or potential competitors are completely or
 partially denied profitable access
acces s to a market. Foreclosure may discourage entry or expansion
of rivals or encourage their exit. Foreclosure, thus, can be found even if the foreclosed rivals
are not forced to exit the market: it is sufficient that the rivals are disadvantaged and
consequently led to compete less aggressively.

[¶. 23] Exclusive arrangements have the potential of being anti-competitive when exclusivity
facilitates a manufacturer and thereby disabling the competitors to turn into an effective
competitor in future. Such exclusive dealings impair the ability of the competitors to achieve
economies of scale.25 

[¶. 24] Here, a dominant firm may attempt to foreclose its competition by exclusive dealings.
Exclusive arrangements entered into by the dominant firm have a great potentiality of having
an AAEC.26 

[¶. 25] In the instant case, the anti-competitive effect of the agreement has multiplied due to
the many anti-competitive clauses. Entry barriers have been created making foreclosure of
market likely. When multiple vertical restraints exist, a combined assessment may lead to the

24
 Dr. L. H. Hiranandani hospital v. Competition Commission of India & Ors., (appeal no. 19/2014) COMPAT
order.
25
 Dennis W. Carlton,  A General Analysis of Exclusionary Conduct and Refusal to deal –  Why
 Why Aspen and Kodak
are Misguided , 68 A NTITRUST LAW JOURNAL, 659, 663 (2001).
26
 MASSIMO MOTTA, COMPETITION LAW: THEORY AND PRACTICE 363  –  366
 363 – 
 366 (Cambridge University Press 2004).

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conclusion that their collective existence enhances the anti-competitive effect of each
individual restraint.27 

 [1.D.ii] That the agreement

agreement is driving existing
existing competitors out of competition

[¶. 26] Section 19(3)(b) of the Act makes driving existing competitors out of business as a

factor of AAEC in the market. In the instant case, Umbrella’s agreement had a detrimental
effect on the market. Epoc had been supplying games to many console manufacturers in the
market. The exclusivity agreement makes other manufacturers
ma nufacturers unable to 1) Licence new games
from Epoc and 2) Maintain and update games already licenced from Epoc.

[¶. 27] Epoc is the oldest and most reputed game developer in the market. It has also produced
many games that have been licensed to Console Manufacturers. These games form an
important selling point for Gaming Consoles. The exclusivity agreement ensures that Epoc is
not able to develop games for any other Console Maker for the next six years. It also ensures
that Epoc does not update and maintain games that have been already licensed. Acme had a
game licenced from Epoc that Epoc refused to update due to the agreement. Because of this
refusal, Acme has suffered a huge loss. The loss in popularity affected other Manufacturers
also. The loss in consumer base has made signing exclusivity agreements with other developers
hard for Manufacturers.

[¶. 28] Therefore, it is humbly submitted before the Commission that the agreement causes
AAEC by foreclosing the competition and driving out the existing competitors from the market.

 [1.D.iii] The restrictions imposed on Epoc doesn’t have any efficiency justifications 

[¶. 29] Exclusive arrangements are regarded as pro-competitive and considered as beneficial
to consumers.28 There exists a belief that the exclusive arrangements very rarely have any anti-
competitive effects, however in cases such agreements harm consumers it may be severe. 29 
Exclusive arrangements have the potential of being anti-competitive when exclusivity

27
EUROPEAN COMMISSION, http://ec.europa.eu/competition/state_aid/legislation/block.html (last visited on Jan 9,
2020).
28
 J. Mark Ramseyer& Eric B Rasmusen, Exclusive Dealing: Before, Bork and Beyond , 67 JOURNAL OF LAW AND
st
ECONOMICS, 6 (2014) 145; R.W. International v. Welch Foods, 13 F.3d 478 (1  Cir. 1994).
29
Jacobson, Exclusive Dealing, “Foreclosure”,
 Jonathan M. Jacobson, Exclusive “Foreclosure”, and Consumer Harm,
Harm, 70 A NTITRUST LAW JOURNAL 
311, 312 (2002).

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facilitates a manufacturer to acquire or maintain monopoly power in the market and thereby
disabling the competitors to turn into an effective competitor in future.30 

[¶. 30] The Act imposes a strict liability on an enterprise abusing its dominant position and it
does not make any reference to an effects-based analysis for considering the conduct of an
enterprise.31 Any vertical agreement to improving the production or distri
distribution
bution of goods or to
 promoting technical or economic progress is considered not anti-competitive provided that it
does not impose on the enterprises concerned restrictions which are not indispensable to the
attainment of these objectives, and afford such undertakings the possibility of eliminating
competition in respect of a substantial part of the products in question. 32 

In Explosive Manufacturers Welfare Association v. Coal India Limited & its

[¶. 31] In Explosive
Officers33, the Competition Commission of India observed that the denial of market access, in
any manner, by a dominant enterprise cannot be justified.

[¶. 32] In the present instance, the immediate provocation for the Umbrella to enter into the
agreement with Epoc was the proliferation of ISOs and non-compatibility issues with the Game
Cast.34 However, the agreement imposes condition of refusal to deal with Epoc, which has no
visible nexus with combating the issues which Umbrella faced. Further, such restrictions
clearly impacted the ability of competitors like Acme to compete in the market for gaming
consoles and to conclude similar exclusivity agreements with other developers. 35 

[¶. 33] Therefore, it is humbly submitted before the Commission that the agreement between
Epoc and Umbrella has caused AAEC and is, therefore, void under Section 3 of the Act.

[ISSUE 2] UMBRELLA HAS ABUSED ITS DOMINANT POSITION IN THE MARKET 

[¶. 34] It is contended that Umbrella has abused its dominant position in the market. For the
 purposes of examining the allegations of the Informant under the provisions of Section 4, it is
necessary to first of all determine the relevant market. Thereafter, it is required to be assured

30
 Dennis W Carlton,  A General Analysis of Exclusionary Conduct and Refusal to Deal –  Why
 Why Aspen and Kodak
 Are Misguided , 68 A NTITRUST LAW JOURNAL 659, 663 (2001).
31
Davies,  Competition
 Cyril Shroff and Nisha Kaur Uberoi, ‘Chapter 4: India’, in Katrina Groshinski and Caitlin Davies, 
 Law in Asia Pacific: A Practical Guide (Kluwer Law International 2015).
32
 Treaty on Functionality of European Union, Article 102(3).
33 East
India Petroleum Pvt. Ltd. (EIPL) v. South Asia LPG Company Pvt. Ltd.,
Ltd. , Case No. 76/2011.
34
 Moot Proposition ⁋14.
⁋14.
35
 Moot Proposition ⁋21.
⁋21.

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whether the OP enjoys a position of strength that enables it to operate independently of the
market forces in the relevant
rele vant market. When such a position is established to be enjoyed by the
opposite party, it is imperative to examine whether the impugned conduct amounts to an
abuse36. Therefore, in this case, Umbrella has abused its dominant position in the relevant
market because: [A] home consoles constitute a separate relevant market, [B] Umbrella is in
the dominant position in the relevant market and [C] Umbrella abused its dominance in the
said relevant market.

[2.A] THAT HOME CONSOLES CONSTITUTE A SEPARATE R ELEVANT

ELEVANT MARKET 

[¶. 35] The finding of dominance in the relevant market is a necessary precondition before
applying section 437. It is, therefore, submitted that Sale of Gaming Consoles is a relevant
 product market. The Console Manufacturers constitute the primary market. Gaming consoles
are specialized products used to play video games on. They form the hardware for playing
games.

[¶. 36] The definition of relevant market for the purpose of Competition in the market was
given in the case of  France Telecom SA v. Commission38 . The Commission considered
relevant product market to be comprising for all those products or services which are regarded
as substitutable or interchangeable by the consumers, by the reason of the
t he characteristics, price
and intended use of the product.

Video Games39, even though personal computers do allow the games

held In re PO Video
[¶. 37] As held In
to played on it like the gaming consoles, the consoles are not substitutable with them because
the Gaming consoles are not substitutable with PCs. It was stated that they are not substitutable

 because “ consoles are designed to satisfy the sole purpose of gaming unlike PCs, b. technical
 performance of the consoles are incontestable with that of PCs,
PCs, cc.. Consoles
Consoles tend to have
have longer
life span in gaming than PCs because of their characteristic, d. the complexity of PCs as
gaming platforms are less attractive to customers in comparison with the console and e. PCs
are almost five times more expensive than the consoles.”  

36
 Asmi Metal Products (P.) Ltd. v. SKF India Ltd, Case No. 72/2016 (Competition Commission of India).
37
 Coal India Ltd. v. Competition Commission of India, [2017] 77 taxmann.com 124 (CAT).
38
 France Telecom SA v. Commission, [2007] ECR II-107.
39
  In
In re PO Video Games, Commission Decision of 30 October 2002, Case 2003/675/EC.

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of  Europemballage Corporation and Continental Can Company Inc. v

[¶. 38] In the case of Europemballage
Commission 40, it was held that the market must be defined from
f rom both supply as well as demand
side. Gaming consoles are neither substitutable with PCs nor laptops. Demand side
substitutability is due to factors like different components, huge price difference, compatibility
multi-tasking capabilities, it isn’t feasible for the manufacturers to switch from
and the multi-tasking
manufacturing consoles41.

[¶. 39] Gaming consoles are distinct in their end-use as they are specifically produced for
gaming purpose unlike PCs and laptops which have multitasking capabilities. The physical
characteristics and the end-use of the goods in the present case are distinct and cannot be
substituted. Because of non-substitutability of gaming consoles, it constitutes a relevant
 product market 42. Further, the producers of consoles like Umbrella are specialized producers
of the home consoles which produce all the parts of the console themselves43.

[¶. 40] Therefore, it is humbly submitted before the Commission that the gaming consoles

constitute a separate relevant product market for Umbrella gaming consoles.

[2.B] THAT UMBRELLA WAS IN A DOMINANT POSITION  

[¶. 41] Section 4(1) of the Act provides that no enterprise or group shall abuse its dominance.
The Act defines ‘dominant position’ in the Explanation as a position
a  position of strength, enjoyed by
an enterprise, in the relevant market, in India, which enables it to (i) operate independently of
competitive forces prevailing in the relevant market; or (ii) affect its competitors
competit ors or consumers
or the relevant market in its favour.

[¶. 42]  ‘The position of strength’ is a rational consideration of relevant facts, holistic

interpretation of statistics or information and application of several aspects of the Indian

economy44. In Kapoor Glass Private Limited v. Schott Glass India Private 45, the commission
In Kapoor Glass
stated:

“that independence in context of dominance does not mean absence of other player in a
relevant market, but that the enterprise whose dominance is being ascertained has market

40
 Europemballage Corporation and Continental Can Company Inc. v Commission, [1973] ECR 215.
41
 In re PO Video Games, Commission Decision of 30 October 2002, Case 2003/675/EC.
 In
42
 Surana And Surana v. Dell India (P.) Ltd., Case No. 29/2015 (Competition Commission of India).
43
 Moot proposition ¶6.
44
45 HT Media Ltd v. Super Cassettes Industries Ltd., Case No. 40/011 (Competition Commission of India).
 Kapoor Glass Private Limited v. Schott Glass India Private, Case No. 22/2010 (Competition Commission of
India).

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 power and is in apposition to influence competitive forces to its own advantage and to the
detriment of others.” 

[¶. 43] Umbrella is in a dominant position which can be affirmed on the basis of: [B.i] The
opposite party cannot take the defence of non-dominant market share under Section 19(4)(a)
[B.ii] There existed a case vertical integration under Section 19(4)(e) [B.iii] Agreement created
an entry barrier under Section 19(4)(h) [B.iv] economic power of the enterprise including
commercial advantages over competitors

 [2.B.i] that umbrella owns

owns a significant market
market share

[¶. 44] Market share of Umbrella as of 2015 is 30.5%, followed by that of Acme at 24.5%.
Such a market share even though isn’t prima facie the declarative of dominant position as
a s the
current act does not specify any threshold market share
s hare for dominance (however in the MRTP
act, the precursor of the current act , provided that market share above 25 % was considered to
dominant or a substantiate market share46) but the relative position of Umbrella suggests that
as the other competitors have a significantly smaller market share for such an influence to be
avoided. The Commission in an earlier case concluded that for a company to be dominant in a
relevant market, it should have substantial market power and should be able to hold on to that
market power for a reasonable period of time 47.

[¶. 45] In the case of Meru

of Meru Travels
Travels Solutions Commission of India 48 , 
Solutions (P.) Ltd. v. Competition Commission
it was held that it is also imperative to look at the provisions of Explanation to Section 4 of the
Act. It states that dominant position means a ‘position of strength’. It does not say that the
 position of strength shall necessarily be determined on the basis market share in statistical

terms. Sub-clause (i) and (ii) of Explanation 1 read with Section 19(4) provides that while
examining the dominance, we aren’t constrained to consider the market share of the enterprise
 but we will have to look at other sub-clause of section 19(4).

In  Kapoor Glass case49, it was decided that the Act does not prescribe the structural
[¶. 46]  In Kapoor
definition of dominance on the basis of the market share alone. It is required to give due regards
to the other factors mentioned in Section 19(4) of the Act to satisfy the dominance in

46
 Monopolies and Restrictive Trade Practice Act, 1969, § 2(d)(iii), No. 13, Acts of Parliament, 2003, (India).
47
Jeetender Gupta v. BMW India Ltd, Case No. 104/2013 (Competition Commission of India).
48 Meru Travels Solutions (P.) Ltd. v. Competition Commission of India, Appeal No. 31 of 2016 (COMPAT).
49
 Kapoor Glass Private Limited v. Schott Glass India Private, Case No. 22/2010 (Competition Commission of
India).

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accordance with Section 4 of the Act. Moreover, market share is but one of the indicators
enshrined in section 19(4) for assessing dominance, and the same cannot be seen in isolation
to give a conclusive finding.50.

St ock Exchange of India Ltd ,51 

In  MCX Stock Exchange of India Ltd. v. National Stock
[¶. 47] In MCX
following the same jurisprudence that market share is not a decisive factor it was held that NSE
dominant in the market in spite of the fact that
t hat its market share was lesser than the MCX.

[¶. 48] Therefore, it is humbly submitted before the Commission that the defendants cannot
take the defence that Umbrella doesn’t have the dominant market
dominant  market share.

 [2.B.ii] That there was high level of Vertical

Vertical integration

[¶. 49] Section 19(4)(e) of the Act provides for vertical integration of enterprises or sale or sale
network of enterprises to be a factor to be taken into account while determining the dominant
 position of an enterprise. Vertical integration is defined in Article 1 of the Council Regulation

(EC) as when two or more undertakings enter into an agreement, each operating at a different
level of production or distribution and relate to the condition under which the parties may
 purchase, distribute, sell or resell certain good and services52. It is also described as a situation
where two or more successive stages
st ages of production or distribution are taken under one common
control53. It is further understood as the organization of successive stages of production
undertaken by a single firm. A firm can be understood as the collective and integrated
ownership of production assets54. The type of vertical integration where an enterprise takes
over the primary stage of production, generally the raw material, shifting its spectrum to the
supply side is called the backward vertical integration55 .

[¶. 50] In the instant case, Umbrella entered an agreement with Epoc for tthe
he development and
sharing of all propriety information including but not limited
limite d to game designing, development,

50
 Fast Track Call Cab (P.) Ltd. & Meru Travels Solutions (P.) Ltd v. ANI Technologies (P.) Ltd., 6 & 74/2015
(Competition Commission of India).
51
 MCX Stock Exchange of India Ltd. v. National Stock Exchange of India Ltd & others, Case No. 13/2009,
(Competition Commission of India).
52
 2 JONATHAN FAULL, ALI NIKPAY, THE EC LAW OF COMPETITION  1136 (UP Oxford 2007).
53
  Friedrich Kessler, Richard H. Stern, Competition, Contract, and Vertical Integration , 69 THE YALE LAW
JOURNAL 1, 1 (1959).
54
 Michael H. Riordan, Competitive Effects of Vertical Integration , DISCUSSION PAPER NO.: 0506-11 1, 4
(2005).
55
  Yen-Ting Lin, Ali K. Parlakturk, Jayashankar M. Swaminathan, Vertical Integration under Competition:
Forward, Backward, or No Integration?   23 PRODUCTION A ND OPERATIONS MANAGEMENT SOCIETY  19, 19
(2014).

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software, software development tools and hardware along with the business and marketing
strategy. The first stage here is the development of gaming software and design which is
undertaken by Epoc. The second stage is the manufacturing of gaming consoles undertaken by
Umbrella. By such an exclusive agreement where Epoch will exclusively make games for
Umbrella consoles, Umbrella undertakes vertical integration agreement in the relevant product
market with Epoc.

[¶. 51] Therefore, it is humbly submitted before the Commission that there was high level of
vertical integration by Umbrella.

 [2.B.iii] That umbrella has

has created entry
entry barriers

[¶. 52] Barriers to entry are specific feature of market, which give incumbent firms advantages
over potential competitors. An incumbent firm may limit and entrant’s firm ability
firm  ability to obtain
necessary supplies or access to necessary
necessa ry distribution by of exclusive agreement. In the case of
United states v. Dentsply Int’l 56 , the court reasoned that exclusive dealing contract create entry
 barriers and thus giving dominant position to the incumbent
incumbent enterprise.

[¶. 53] In the case of  Los Angeles Land Co. v. Brunswick Corp 57, the court was of the opinion
 Los Angeles
that having control over a superior resource is an source of entry barrier, hence, where an
enterprise is having control over superior resource it can be said dominant in the market
 because of its ability to create entry barrier by restricting that superior resource.

[¶. 54] In the instant case, Umbrella by the way

w ay of an exclusive dealing contract with Epoc has
restricted Epoc from developing games for other gaming console manufacturer. Here these
games are the resources which is used by these console manufacturers, and the games

developed by the Epoc are considered to be the superior resource owing to the reputation and
technological aspect of it. Hence Umbrella by restricting Epoc to develop games for other
console manufacturer has created a barrier for the new entrants in the market.

[¶. 55] Therefore, it is submitted before the commission that Umbrella has created entry
 barriers in the market.

 [2.B.iv] That umbrella enjoyed

enjoyed Superior
Superior Economic power
power including commercial
commercial
 advantages over
over competitors

56
 United States v. Dentsply Intern., Inc., 190 F.R.D. 140 (D.Del. 1999).
57
 Los Angeles Land Co. v. Brunswick Corp., 6 F.R.D. 1422 (9 th Cir. 1993).

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[¶. 56] Umbrella in this market is having a significant economic power which it has clearly
 been used to get an edge over its competitors in the said agreement. Umbrella
Umbrel la entered into an
agreement of exclusivity with Epoc 58. Umbrella offered a revenue rate higher than the market
share of other developer 59. Epoc agreed for the same finding it in its financial interest 60. This
has provided Umbrella with exclusive right over Epoc for development of game at the
exclusion of others and hence, a technological edge over others.

[¶. 57] As Umbrella was decisively the oldest console manufacturer in Imarti, it can be safely
inferred that it ought to have a developed sales and distribution network owing to its market
 position. In the case of  Hoffmann-La Roche & Co. AG v. Commission61 it as held that the
of Hoffmann-La
technological lead of an undertaking over its competitors and the existence of highly developed
sales network represent in themselves the technical and commercial advantages. Further, in the
superior technology has been held to be an economic advantage62.

in  Fortner Enterprises, Inc. v. United States Steel Corp 63, it was found that
[¶. 58] Further, in Fortner

one could infer the requisite economic power from particularly advantageous terms and prices.
Hence, it can be inferred that advantageous terms and prices involved in this trade deal clearly
shows that the Umbrella has significant economic power which provided a commercial
advantage over other competitors.

[¶. 59] Therefore, it is humbly submitted before the Commission that Umbrella has a dominant
 position in the market taking
taking into account the cumulative effect of the abovementioned factors
under Section 19(4) of the Act.

[2.C] THAT UMBRELLA HAS ABUSED ITS DOMINANT POSITION 

[¶. 60] It is submitted before the committee that Umbrella has abused its dominant position in
the market for manufacture and sale
sal e of gaming consoles by violating the provisions of the Act.
It has violated Section 4(1) of the Act by denying Acme access to this market 64.

 [2.C.i] That Umbrella caused

caused Denial of Market
Market Access
Access

58
 Moot proposition ¶16.
59
 Moot proposition ¶16.
60
 Moot proposition ¶17.
61
 Hoffmann-La Roche & Co. AG v. Commission, [1979] ECR 461.
461 .
62
ICHARD ISH   AVID AILEY OMPETITION AW
63 R  W &D B , C L  195 (OUP Oxford 2018).
 Fortner Enterprise, Inc. v. United States Steel Corp., 394 U.S. 495 (1969).
64
 Moot proposition ¶22.

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[¶. 61] Section 4(2)(c) of the Act is worded in an extremely wide manner which suggests that
any entry barrier created by the dominant enterprise, by its conduct with results in denial of
market access in any manner will be an abuse. The use of term ‘any manner’ brings in all and
acces s to its competitors 65.
every manner in which a dominant entity can deny market access

[¶. 62] In the case Consumers Guidance Society v. Hindustan Coca Cola Beverages66  it was
held that HCCBPL denied market access to its competitors by entering into an exclusive supply
Authority of India67  it was held
the  Jindal Steel & Power Ltd. v. Steel Authority
agreement. Further, in the Jindal
that exclusive agreements entered by dominant firm can be assessed as an abuse
a buse under Section
4 of the Act if it results in denial of market access. In the  BCCI case 68  , the CCI reviewed a
clause in media rights agreement and held that long term agreements which results in denial of
market access to any potential competitors and hence create entry barrier is an abuse.

[¶. 63] In the case of Vijay Gopal v. Inox Leisure Ltd .69, it was held that denial of market
access should not be absolute in nature. Even a partial denial of access which takes away the

freedom of the competitor to effectively compete on the merits of the relevant market can be
adjudged as to be in contravention of Section 4(2)(c) of the Act.

[¶. 64] Acme couldn’t approach Epoc for the development of new version of its games due to
the exclusive agreement between Umbrella and Epoc.
E poc. The consideration has to be given to the
fact that Console developers tend to develop newer versions of the old games rather than
developing new games altogether due to market risks70. Hence, Umbrella denied market access
to Acme by causing refusal to deal by withholding Epoc’s software availability to Acme. In
Shamsher Kataria v. Honda Siel Cars India Ltd. ’s71 it was observed that such a refusal to deal
causes denial of market access and hence, abuse of dominant position.

[¶. 65] Furthermore, it has to be noted that the concept of denial of market access under Section
4(2)(c) is the conceptual aspect of doctrine of essential facility in the Indian competitive

65
  Shri Neeraj Malhotra, Advocate v. North Delhi Power Ltd. & Ors., Case No. 06/2009 (Competition
Commission of India).
66
 Consumers Guidance Society v. Hindustan Coca Cola Beverages, Case No. UTPE 99/2009.
67
 Jindal Steel & Power Ltd. v. Steel Authority of India, [2012] 111 SCL382 (CCI).
68
 Surrinder Brami v. BCCI, Case No. 61/2010, (Competition Commission of India).
69
 Vijay Gopal v. Inox Leisure Ltd, Case No. 29/2018 (Competition Commission of India).
70
  Nicholas J. Fessler,  A Declaration of War: A Case of Competition in the Video Game Industry   7 IMA 
EDUCATION CASE JOURNAL 1, (2014).
71
 Shamsher Kataria v. Honda Siel Cars India Ltd.,  Case No. 03/2011 (Competition Commission of India).

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 jurisprudence72.  In Oscar Brooner v. Media Print73, the European Commission, propounded

the essential facility doctrine. This doctrine states that the raw material required for further
creation on product is an essential facility, and hence those dominant entities which refuse to
 provide those essential facility, negatively affect the sustainability of other competitors in the
market.

[¶. 66] In Coal India Ltd. v. Competition Commission of India74, CCI was of the opinion that
the long-term agreement imposing unfair condition regarding the supply of non-coking coal,
which is an essential material for production of electricity, has negative affect on its
competitors.

[¶. 67] In the instant case, the game development service of Epoc is the essential facility
 because it is essential material
material for gaming console
console manufacturer. Umbrella by an agreement of
exclusivity which has restricted Epoc from developing games for other gaming console
manufacturer has caused the restriction of this essential facility in the market and hence

denying them access to this market thus causing negative effect on the competitors.

[¶. 68] Therefore, it humbly submitted before the Commission that Umbrella has abused its
dominance in the market by denying Acme the access to this market.

[ISSUE 3] CONSOLE MANUFACTURERS HAVE ABUSED THEIR DOMINANT POSITION 

[¶. 69] In the instant case it is submitted before the Commission that the Console
Manufacturers abused their dominant position under Section 4 of the Act in the relevant
rele vant market.
When an enterprise exercises a dominant position, it has a special responsibility not to allow
its conduct to impair competition.75 In the present case the Console Manufacturers violated
Section 4(2)(a)(i) of the Competition Act by engaging in abusive exclusionary conduct. They
denied market access to ISOs  under Section 4(2)(c) of the Act and, engaged exploitation of
dominance in one market to protect another relevant market  under Section 4(2)(e) of the Act.

72
 Piyush Joshi and Anuradha R.V., Study on Competition Concerns in Concession Agreements in Infrastructure
Sectors, (Feb 29, 2020),  https://www.cci.gov.in/sites/default/files/ConAgreInfraSect_20100401141506.pdf.
73
74 Oscar Brooner v. Media Print, C-7/97, ECLI:EU:C:1998:569.
 Coal India Ltd. v. Competition Commission of India,
India , [2017] 77 taxmann.com 124 (CAT).
75
 Treaty on the Functioning of the European Union Art. 102, 2008 O.J. C 115/47.

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[¶. 70] Dealing with the allegations of abuse of dominance under section 4, the first step is to
determine the relevant market 76. Therefore, in order to inquire into
i nto the issues of dominance and
abuse under the provisions of the Act, it is necessary to determine the relevant market as
 prescribed under 2(r) of the Act,77 assess dominance in the relevant market with regards
under Section 2(r)
to the factors laid down in Section 19(4) of the Act, and establish abuse of dominance under
Section 4 of the Act. The console makers have abused their position under Section 4 of the Act
 because [3.A] Aftermarket services constitute a separate relevant product market [3.B] The
console makers were dominant in the aftermarket [3.C] The Console makers abuse their
dominance under Section 4 of the Act and that [3.D] The defence of IPR is not valid [3.E] The
Console Manufacturers cannot take the defence of efficiency gain.

[3.A] THAT AFTERMARKET SERVICES CONSTITUTE A SEPARATE RELEVANT PRODUCT

MARKET 

[¶. 71] The relevant market in the present case is After Sale Services to Consoles. It is the

downstream market where the abuse has been occasioned. The Aftermarket is dependent on
the Consoles Sales Market which is the upstream market i.e. market for manufacturing and sale
of consoles attains relevance. The geographic market, in the present case is limited to Imarti.
[¶. 72] Furthermore, Gaming Consoles are not interchangeable with the services rendered by
the After-sale Market. Distinct customers and distinct prices are factors useful in identifying a
distinct market.78  The allegations of abuse in the present case pertain to both the upstream
market and the downstream market.

79
[¶. 73] In the case of Shamsher Kataria v. Honda Siel Cars India Ltd  the distinction was
 brought in in the relevant product market between the primary market, which is the
manufacturing and sale of products and the aftermarket which is constituted by provision of
aftersales services, supply of spare parts and other diagnostic tools. There can be different
competitive constraints on the original equipment market and that of the spare parts leading to
the delineation of the markets 80. Hence, relevant market in the instant case has to be analysed

76
 NK Natural Foods (P.) Ltd. v. Akshaya (P.)
( P.) Ltd., Case No. 74/2013 (Competition Commission of India).
77
  Mr. Ramakant Kini v. Dr. L.H. Hiranandani Hospital, Powai, Mumbai, Case No. 39/2012 (Competition
Commission of India).
78
 Brown Shoe Co. v. United States, 370 US 294 (1962).
79
 Shamsher Kataria v. Honda Siel Cars India Ltd., Case No. 03/2011 (Competition Commission of India).
80 Commission Notice On The Definition Of Relevant Market For The Purposes Of Community Competition
Law, OJEC, [C372/5], [C372/6], (1997), https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:31997Y1209(01)&from=EN.

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not on the basis of primary market but on the basis of aftermarket for the sale of spare parts,
repair and maintenance services81.

[¶. 74] The ISOs provide such aftermarket services to the customers for the repair and spare
 parts for the consoles. Thus, the relevant market is Aftermarket for Gaming Consoles in Imarti.
Therefore, it is humbly pleaded before the Commission that the Aftermarket services provided
 by the ISOs for console constitutes another relevant market.

[3.B] THAT THE CONSOLE MANUFACTURERS WERE DOMINANT IN THE AFTERMARKET 

[¶. 75]  Section 4(a) of the Act defines ‘dominant position’ as, (a) “a position of strength,
enjoyed by an enterprise, in the relevant market, enabling it to ,” (b) “operate independently of
competitive forces prevailing in the relevant market”. 
market”.   Further, Section 19(4) of the Act
 prescribes factors that must be considered while enquiring into whether an enterprise enjoys a
dominant position. For the same purposes, dominance shall be assessed on the basis of (a)
market share, (c) size and resources of the enterprise.

 [3.B.i 
 ] That the console makers were collectively dominant

[¶. 76] Although the Competition Act does not explicitly provide for collective dominance,
there is no express denial of it either. The object of Section 4 is the prohibition of abuse of the
dominant position of the enterprise concerned. It does not stipulate that there can be only one
dominant entity in one relevant market. It is submitted that the intent of using the definitive
expression of “no person/ no company/ no enterprise” is to convey
conve y with certainty the
 prohibitions mentioned under the provisions and not to limit such a prohibition to a single

 person, enterprise or company. The Explanation (a) to Section 4 does not limit the
t he dominant
entity to a single entity.
[¶. 77] To substantiate further, Section 13(2) of The General Clauses Act, 1897 states that in
all Act and Regulations, that unless the context specifies ‘singular shall include the plural and
vice versa.’ The provision expressly states that any words in the act in singular will   be
understood and construed to include the plural which in the simplest words means and re-
affirms the claim that under § 4, the term ‘enterprise’ shall also include ‘enterprises’. In various

81
 Toyota Kirloskar v. Competition Commission of India, Case No 60/2014
6 0/2014 (Competition Commission of India).

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cases, the singular terms such as person82 , state83 and association84 have been held to include
their plural meanings as well.
[¶. 78] In the case of CCI v. SAIL85, the court interpreted the objective of CCI as: “ The main
object of the competition law is to promote economic efficiency using competition as one of the
preference.” It is submitted
means of assisting the creation of market responsive to consumer preference.
 before the Commission that by not recognizing the concept of collective dominance in Imarti,
gross abuse dominance might occur. The systematic removal of ISOs reduces consumer choice
and binds them to the Console Manufactures’ ASCs only. 
only. 
The CCI has also discussed the possibility of existence of more than one entity acquiring a
 position of dominance in the market when it held that ‘the concept of dominance does centre
on the fact of considerable market power that can be exercised only by a single enterprise or
a small set of market players.’ 86  
[¶. 79] Article 102 of the Treaty on the Functioning of the European Union prohibits any
“abuse by one or more undertakings of a dominant position ,”87  A joint dominant position
consists in a number of undertakings being able together, in particular because of factors giving
rise to a connection between them, to adopt a common policy on the market and act to a
considerable extent independently of their competitors, their customers, and ultimately
consumers.88 
[¶. 80] In order for such a collective dominant position to exist, the undertakings in the group
must be linked in such a way that they adopt the same conduct on the market.89 In Compagnie
 Maritime Belge Transports SA v. Commission90  the Court held that tangible links are not
necessary in order to establish collective dominance. An u
undertaking
ndertaking either on its own or
together with other undertakings must hold a leading position on that market compared to its
rivals.

[¶. 81] In the present case, Umbrella began establishing

establi shing Umbrella Authorised Repair Centres.
It issued licenses to ISOs to become ASCs on the condition that they only service Umbrella

82
 Nathu v. State, [1958] AIR All 467.
83
 S Sher Singh v. Raghu Pati Kapur and Anr, [1968] AIR P&H 217 (India).
84
 Re Phool Din & Ors, [1952] AIR All 491.
85
 CCI v. SAIL, (2010) 10 SCC 744.
86
 Consumer Online Foundation v. Tata Sky & Ors, Case No. 2 of 2009 (Competition Commission of India).
87
 Treaty on the Functioning of the European Union Art. 102, 2008 O.J. C 115/47.
88
89 Irish Sugar plc v. Commission, [1999] ECR II-2969
II -2969 [46].
 Amelo v. NV EnergiebedrijfIjsselmij, [1994] ECR I-1477.
I- 1477.
90
 Compagnie Maritime Belge Transports SA v. Commission,  [2000] ECR I-1365. 

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consoles and offer Epoc Games for sale 91. Other Console Manufacturers followed soon and
ASPs formed to deal exclusively with a single brand.
br and. This exclusive tie-in reduced the market
share of ISOs.

[¶. 82] The ASP’s serviced one brand exclusively and the manufacturers licensed these ASPs,
the console manufacturers gained 100% of the after-sale service market for their brand
consoles.92 Collectively all the ASPs cut off information access to ISPs forcing them to either
sign exclusivity agreements with the console manufacturers or lose business as information
essential for servicing was withheld.

Therefore, it is humbly submitted that the Commission shall recognise that the console
manufacturers collectively dominated the After-sale service market through the ASPs.

 [3.B.ii] That console manufacturers

manufacturers had the size and resources of dominant entity

[¶. 83] Section 19(4)(b) of the Act enlists size and resource of the enterprise as a factor to be

considered while inquiring about the position of the enterprise in the market. The commission
ent erprise’s dominant
may consider size and importance of the competitors to ascertain an enterprise’s
 position.93  In the instant case, the Console Manufacturers had the size and the resources to
dominate the aftermarket of gaming consoles. In the gaming industry, they had the revenue
share of 51%94. Furthermore, they had access to proprietary information over the consoles that
were required for service. This technical information is essential for the functioning of the
aftermarket constituted by the ISOs for after-sale services. In Tetra Pak case95, a company that
had exclusive patent rights and know how licence was regarded as a factor indicating
dominance, as it made entry to the market more difficult.

[¶. 84] In the case of Shamsher Kataria v. Honda Siel Cars India Ltd. 96 and
 and Fx-Enterprise
 Fx-Enterprise
Solution v Hyundai97 , the original equipment manufacturers were held to be 100% dominant
entity for the sale of genuine spare parts and correspondingly in the after-sale services in the
aftermarket.

91
 Moot Proposition ¶13.
92
 Fx-Enterprise Solution v. Hyundai, Case Nos. 36 & 82/2014 (Competition Commission of India).
93
MAHER M.  DABBAH, EC  A ND UK   COMPETITION LAW:  COMMENTARY,  CASES A ND MATERIALS (Cambridge,
2004).
94
 Moot Proposition ¶15.
95
96 Tetra Pak Rausing SA v. Commission, [1990] ECR II-309.
 Shamsher Kataria v. Honda Siel Cars India Ltd., Case No. 03/2011 (Competition Commission of India).
97
 Fx-Enterprise Solution v. Hyundai, Case Nos. 36 & 82/2014 (Competition Commission of India).

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[¶. 85]  After the Manufacturers started licensing ISOs to form ASPs, the ASPs became
collectively dominant in the Aftermarket. Each brand became 100% dominant for the After-
sale service of their products through ISOs. The console makers started putting seals of
authenticity on the spare parts and making other technical information as well as spare parts
and available to only to ASCs thereby eliminating the ISOs from the market.

[¶. 86] Therefore, it is humbly submitted before the Commission that the Console
Manufacturers held a 100% dominant position in the after-sale services of the consoles.

[3.C] THAT THE CONSOLE MAKERS ABUSED THEIR DOMINANCE UNDER SECTION 4 OF THE
ACT 

[¶. 87] The Act prescribes that any conduct of a dominant enterprise falling within the contours
of Section 4 will amount to the abuse of its position. It is contended that the manufacturers’
engaged in the exclusionary abuses of (i) denial of market access (ii) using its dominant
 position in one relevant market to enter into other relevant market.

 [3.C.i] That Umbrella caused

caused denial of market
market acces
accesss

[¶. 88]  It is contended that the manufacturers’ practices amount to a denial of market access
under 4(2)(c) of the Act. The behaviour of the dominant firm
fi rm which is likely to cause partial
parti al or
complete denial of access to the potential or actual competitors, ultimately harming the
customers is known as exclusionary abuse which is likely to have a foreclosure effect on the
market98. Given the special responsibility99  of dominant enterprises not to impair genuine
competition in the relevant market it is submitted that the conduct of Console Manufacturers
is exclusionary and leads to the denial of market access.

[¶.89] In the instant case foreclosure is apparent in the declining market shares of the ISPs
coupled with the increasing market share of the ASPs 100. ASPs which are essentially an
extension of Console Manufacturers are in direct competition
c ompetition with ISOs. When a manufacturer
limits the access of ISPs to essential facilities
facilitie s required to effectively compete with ASPs in the
aftermarket it amounts to denial of market access.

98
  European Commission, Competition discussion paper on the application of Article 82 of the Treaty to

exclusionary abuses (2005).
99
 Treaty on the Functioning of the European Union Art. 102, 2008 O.J. C 115/47.
100
 Moot Proposition ¶ 7.

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of  Aspen Skiing Co. v. Aspen

[¶.90] The doctrine of essential facilities as defined in the case of Aspen
 Highlands Skiing Corp 101 states that when an enterprise which holds a dominant position in
the relevant market (i) it controls a product that is necessary for accessing the market, which is
(ii) not easily reproducible at a reasonable cost in the short term, (iii) not interchangeable with
other products/services, the said enterprise may not refuse to share it with its competitors,
without justification, at reasonable cost.
[¶.91] It is submitted that access to essential facilities must be afforded to competitors upon
such just and reasonable terms and regulations as will, in respect of use, character and cost of
service, place every such company upon as nearly an equal plane as may be with respect to
expenses and charges as that occupied by the proprietary companies. 102 
[¶. 92] In the present case, Console Manufacturers use proprietary technology to develop the
consoles. This technology is indispensable to the market and is evidently unattainable from any
other alternate source other than the Console Manufacturers. Such an information is not freely
available in the market nor can ISOs develop the technology on their own.
[¶. 93] Barriers to entry may also arise from product differentiation. Product differentiation
creates advantages for incumbents because entrants must overcome the accumulated brand
loyalty of existing products. As has been held in the United Brands103 , product differentiation
acts as a barrier to entry. By introducing th
thee spare parts with the stamp of authenticity, the
 product differentiation has been created.104 

[¶. 94] The exclusive supply clause has created barriers to new entrants in the aftermarket. The
exclusive distribution agreement has made entry into the aftermarket undesirable and has made
foreclosure of the same likely.

[¶. 95]  Therefore, it is humbly submitted before the Commission that the console
manufacturers denied the ISOs access to the market by withholding such essential information
and creating product differentiation.

 [3.C.ii] The console

console manufacturers used their dominance
dominance in one market
market to enter another
another
 market

101
 Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 427 U.S. 585 (1985).
102
 United States v. Terminal R.R. Assoc ., 224 US 383 (1912).
103 
104 United Brands v. Commission, (1978) ECR 207.
 R. Preston McAfee, Hugo M. Mialon, and Michael A. Williams,  Economic and Antitrust Barriers to Entry ,
94 The American Economic Review, 482 2004, www.jstor.org/stable/3592928.

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[¶. 96] Section 4(2)(e) of the Act provides that leveraging dominance in one market to enter
another market by an entity is abusive. There is an abuse of dominant position where an
undertaking occupies a dominant position on a market and which is thus able to control the
activities of other undertakings on a neighbouring market decides to establish itself on the
second market and for no good reason refuses to supply the product or service in question on
the market where it already occupies a dominant position to the undertakings whose activities
are centred at the market which it is penetrating.105 
[¶. 97] In CBEM case106, the European Court of Justice held that an abuse is committed where,
without any objective necessity, an undertaking holding a dominant position on a particular
market reserves to itself
its elf or to an undertaking belonging to the same group an ancillary activity
which might be carried out by another undertaking as part of its activities on a neighbouring
 but a separate market, with the possibility of eliminating competition from such undertaking.
undertaking.
If a given vertical restraint
restr aint is introduced to solve coordination problems along with another that
restricts competition, there would not be any compensatory effect and an improvement from
the view of competition would not be noticed.107 

[¶. 98] In Toyota Kirloskar Motor (P.) Ltd case 108 , the supply of spare parts to independent
repairers had been so restricted that independent repairers were not in a position to source spare
 parts in an economically rational manner. They were also deprived of diagnostic tools and
technical information and consequently they were able to push independent repairers out of the
market thereby facilitating the availability of the services/repairs market to their associates- the
authorised dealers.109 

[¶. 99] In the present case, ASPs are an extension of the Console Manufacturers only. They are

in direct competition with their customers (for information regarding consoles). The
 proprietary information is
i s an essential commodity in the aftermarket. The denial of access to
that information does not serve the purpose of the Console Manufacturers as the efficiencies
gained are not proportional to the detrimental effect of such exclusionary practise.
[¶. 100] Therefore, it is humbly submitted before the Commission that console manufacturers
have used their dominant position in one market to enter into another market.

105
 Commercial Solvents v. Commission, (1974) ECR 223.
106
 CBEM v. CLT and IPB, (1985) ECR 3261.
107
EUROPEAN U NION, http://europa.eu/documents/comm/green_papers/pdf/com96_721_en.pdf, (last visited

January
108 8, 2020).
 Toyota Kirloskar v. Competition Commission of India, Case No 60/2014 (Competition Commission of India).
109
 Toyota Kirloskar v. Competition Commission of India, Case No 60/2014 (Competition Commission of India).

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[3.D] THAT THE DEFENCE OF INTELLECTUAL PROPERTY RIGHT IS NOT VALID 

[¶. 101] Section 3(5) of the Act provides the dominant enterprise with a defence of Intellectual
Property Right under the Intellectual Property Right 110  laws in India. The Console
Manufacturers have taken the plea of Intellectual Property Right. The console manufacturers
have contended that they are not under an obligation to share information about their consoles
to the ISOs because the information is protected by Intellectual Property Rights. They are the
owners of the property and are not required to share it with anyone.
[¶. 102] Section 3(5) of the Act states that the Section 3 doesn’t restrict the right of any person
to restrain any infringement of, or to impose reasonable conditions, as may be necessary for
 protecting any of his rights. It allows
all ows the owner of the intellectual property, in exercise of his
right, to imposing restrictions having anti-competitive effects to the extent that they are
“reasonable and necessary” to
necessary” to protect his rights by which it clearly
clearl y limits the scope of the right
held by the owner.111 In Toyota Kirloskar Motor (P.) Ltd case 112 it was held that the protection
of intellectual property by itself cannot be considered as a reasonable condition. 113 
case114 where the Radio Telefilms Eireann (RTE) and
[¶. 103] The ECJ confirmed in Magill’s case
Independent Television Publications Limited (ITP) were primary and the only source of
information for programming and scheduling being the indispensable for the operation of
weekly television guide, they were not given the protection of the IPR against dissemination
of such information to the third party. The Court held that such a refusal, will render the use of
IPR as abuse of dominance under Article 86 of Treaty of Rome.
of AB Volvo v Erik Veng115 it was held that the exercise of his IPRs by the
[¶. 104] In the case of AB
 proprietor can be prohibited by Article 86 if it indulges in abusive conduct such as refusal to
supply spare parts to independent repairers, or unfair pricing, etc. if such a conduct has an effect
on trade practices.
[¶. 105] The
The Raghavan report   states that “ During the exercise of a right, if any
 Raghavan Committee report
anti-competitive trade practice or conduct is visible to the detriment of consumer interest or
 public interest, it ought
ought to be assailed Competition Policy/Law”116
assailed under the Competition

110
 Hereinafter IPR.
111
 Toyota Kirloskar v. Competition Commission of India, Case No 60/2014 (Competition Commission of India).
112
 Toyota Kirloskar v. Competition Commission of India, Case No 60/2014 (Competition Commission of India).
113
 Toyota Kirloskar v. Competition Commission of India, Case No 60/2014 (Competition Commission of India).
114
  Radio Telefilms Eireann (RTE) and Independent Television Publications Ltd (ITP) v. Commission of the
European
115
Communities, ECR 1995 I-00743.
 Volvo AB v. Erik Veng (UK) Ltd, (238/87) EU:C:1988:477).
116
 Report of High Level Committee on Competition Law & Policy, SVS Raghavan Committee (2000).

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Informants 
 Memorial on the behalf of the Informants
 

3rd TNNLU- CCI NATIONAL MOOT COURT COMPETITION, 2020

[ARGUMENTS ADVANCED]

It has been generally accepted that IPRs are subject to general antitrust principles because IPR
confers upon its owner only the autonomy of decision in competition and the freedom to enter
contract regarding the property subjected to the right 117. When alternative technologies are not
available, IPRs can be said to grant their holders monopolistic positions in the defined relevant
markets. Moreover, Section 60 gives overriding effect to Competition Law over IPR law. 118 
[¶. 106] In the case of Toyota Kirloskar Motor (P.) Ltd 119  It was decided that the enterprises
which are found to be dominant pursuant to Section 4(2) of the Act and indulges in the act of
denial of access to the market without any commercial justification cannot take the defence of
IPR of the equipment manufacture.
[¶. 107] In the present case, the Console Manufacturers have pleaded their IPR when they were
accused of abusing their dominance in the relevant market. They have restricted the technical
information to the ASCs for the servicing of the consoles making them a sole repository of
such information which makes the operation and survival of the ISOs difficult in the market.
They have thereby denied access to market, service and repair to the ISOs.
[¶. 108]  Therefore, it is humbly submitted before the Commission that the Console
Manufacturers cannot take the defence of IPR under Section 3(5) of the Act.

[3.E] THAT THE CONSOLE MANUFACTURERS CANNOT TAKE THE DEFENCE OF

EFFICIENCY GAIN 

[¶. 109] It has been held that for a firm to adopt efficiency as a defence the efficiency
e fficiency gain must
restricti ons imposed upon the customer.120 It is submitted
 be shown to be a direct result of the restrictions
that (a) the restriction must be shown as being indispensable and (b) sufficient gains must be
 passed onto the consumer.

[¶. 110] In the present matter the maintenance of quality standards may be achieved by less
restrictive alternatives. These alternatives
alternati ves include laying down the specifications of compatible
spare parts or limiting the breach of warranty to the extent that there has been faulty repair by
an ISO. Moreover, it is contended that imposition of conditions for the maintenance of quality
standards in this sector amounts to self-regulation. Self-regulation by groups of competitors is
viewed sceptical because of a concern that the self-regulating group may be tempted to adopt

117
  HANS ULLRICH, INTELLECTUAL PROPERTY,  ACCESS TO INFORMATION,  AND ANTITRUST:  HARMONY, 
DISHARMONY, AND INTERNATIONAL
INTERNATIONAL HARMONISATION, 366, (OUF Oxford 2001).
118 The Competition Act, 2002, §60, No. 13, Acts of Parliament, 2003, (India).
119
 Supra note at 50.
120
 Supra note 58.

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Informants 
 Memorial on the behalf of the Informants
 

3rd TNNLU- CCI NATIONAL MOOT COURT COMPETITION, 2020

[ARGUMENTS ADVANCED]

rules that exclude their competitors.121  It is contended that the manufacturers’ may not take
unilateral actions to address such considerations. Therefore, the restrictions imposed by the
manufacturers are not indispensable.

[¶. 111] It is submitted that the ASPs and ISOs provide for the same packages. However, the
ISP provide for the same at a lower price, hence negating any scope for sufficient gain that a
consumer might receive. Moreover, the manufacturers’ limit
li mit the Console Owner’s choice. The
122
right to choose is considered a fundamental of a competitive market.  It is submitted that a
deprivation of the same amounts to abusive conduct. 123  Hence, it can be shown that no
sufficient gains were being passed onto the consumer by demanding that they avail the services
of the ASP.

[¶. 112]  Therefore, it is humbly submitted before the Commission that the manufacturers
cannot not take the defence that their conduct resulted in efficiency gains and hence, the
Console Manufacturers have abused their dominant position in the relevant aftermarket.

121
122 Aba Section of Antitrust Law, Handbook on The Antitrust Aspects Of Standards Setting  (2004).
 Supra at 117.
123
 Supra at 117.

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Informants 
 Memorial on the behalf of the Informants
 

3rd TNNLU- CCI NATIONAL MOOT COURT COMPETITION, 2020

[PRAYER FOR R ELIEF
ELIEF]

PRAYER FOR RELIEF 

Wherefore, in the light of facts stated, issues raised, arguments advanced and
authorities cited, it is most humbly prayed that this Commission may be pleased

to adjudge, hold and declare the following:

1.  That the agreement concluded between Epoc and Umbrella is anti-competitive
under Section 3 of the Act and hence void;
2.  That Umbrella had abused its dominant position in the market for console
manufacturing;
3.  That the console manufactures have abused their collective dominance in the
market for repair and servicing consoles;

 And/or pass any other order

order in favour of the Informants
Informants that it may deem
deem fit in the light of
 justice, equity, and
and good cons
conscience.
cience. All of which is most
most humbly prayed.
prayed.

Place: Imarti  s/d

Dated: March 6, 2020 Counsel for Informants