Memorial Respondent

TEAM CODE: 025
BEFORE THE COMPETITION COMMISSION OF GENOVIA
[Information filed under Section 19(1)(a) of the Competition Act, 2002]
Case No. 1 of 2021
NIKITA IYER …….PETITIONER
VERSUS
VIJETA TECH INSTRUMENTS LIMITED (VIJETA) .......RESPONDENT 1
DEPARTMENT OF TECHNOLOGICAL DEVELOPMENT …....RESPONDENT 2
(DOTD)
MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS
TABLE OF CONTENTS............................................................................................................i
LIST OF ABBREVIATIONS....................................................................................................ii
INDEX OF AUTHORITIES....................................................................................................iii
STATEMENT OF FACTS.....................................................................................................viii
STATEMENT OF JURISDICTION.........................................................................................xi
ISSUES RAISED.....................................................................................................................xii
SUMMARY OF ARGUMENTS............................................................................................xiii
WRITTEN SUBMISSION.........................................................................................................1
1. WHETHER VIJETA HAS CONTRAVENED SECTION 3(4) READ WITH SECTION

3(1) OF THE ACT?...............................................................................................................1
1.1. VIJETA ENTERED INTO AGREEMENTS UNDER § 3 OF THE ACT..............1
1.2. AGREEMENTS HAVE AAEC IN THE MARKET...............................................7
2. WHETHER VIJETA HAS CONTRAVENED THE PROVISIONS UNDER SECTION

4(2) OF THE ACT?.................................................................................................................10
2.1 VIJETA ENJOYS A DOMINANT POSITION IN THE RELEVANT MARKET

10
2.2 VIJETA HAS ABUSED ITS DOMINANT POSITION.......................................10
3. WHETHER DOTD HAS CONTRAVENED THE PROVISIONS UNDER SECTION

4(2) OF THE ACT?.............................................................................................................20
3.1 DOTD IS AN ENTERPRISE UNDER §2(h) OF THE ACT................................20
3.2 DOTD IS IN A DOMINANT POSITION IN THE RELEVANT MARKET.......20
3.3 THE ACTIONS OF DOTD AMOUNT TO ABUSE OF DOMINANCE.............23
PRAYER FOR RELIEF...........................................................................................................27

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LIST OF ABBREVIATIONS
Abbreviation Description
AAEC Appreciable Adverse Effect on Competition
Act Competition Act, 2002
CCG Competition Commission of Genovia
Co. Corporation
DOTD Department of Technological Development
EU European Union
Inc. Incorporation
Ltd. Limited
Pvt. Private
RPM Resale Price Maintenance
TFEU Treaty on the Functioning of the European Union
v Versus
Vijeta Vijeta Tech Instrument Limited
& &
¶ Paragraph
§ Section

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INDEX OF AUTHORITIES
A. LIST OF STATUTES
S. No. Statute
1. Competition Act, 2002
2. Sherman Act, 1890
3. Clayton Act, 1914
B. TREATIES
1. Treaty on the Functioning of the European Union
2. BBI/Boosey & Hawkes: Interim Measures.
C. CASES
Indian Cases
Aberdeen Journals Ltd. v Director General of Fair Trading, (No.1) [2002] CAT 4..............27
Accessories World Car Audio Private Limited v Sony India Private Limited & Another, 2020
SCC OnLine CCI 17.........................................................................................................9, 12
All India Online Vendors Association v Flipkart India Pvt. Ltd., Case No 20 of 2018 [CCI].17
Amit Auto Agencies v King Kaveri Trading Co., 2013 Comp LR 892 (CCI)............................7
Ashish Ahuja v SanDisk Corporation & others, Case No. 17 of 2014....................................19
Automobiles Dealers Association, Hathras, UP v Global Automobiles Ltd and Pooja Expo
India Pvt Ltd, 2012 Comp LR 827 (CCI)...................................................................1, 12, 13

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Consumer Online Foundation v Tata Sky Ltd, Dish TV India Ltd, Reliance Big TV Ltd & Sun
Direct TV Pvt. Ltd., Case No. 2/2009.....................................................................................6
Exclusive Motors Pvt Ltd v Automobili Lamborghini SPA, [2014] 121 CLA 230 (CAT).........2
Explosive Manufacturers Welfare Association v Coal India Ltd & its Officers, 2012 Comp
LR 525 (CCI)........................................................................................................................22
FICCI – Multiplex Association of India v United Producers/Distributors Forum, 2011 Comp
LR 79 (CCI)..........................................................................................................................11
Financial Software & Systems Pvt Ltd Informant v ACI Worldwide Solutions Pvt Ltd., 2015
Comp LR 253 (CCI)...............................................................................................................6
Gulshan Rai Jain & Sons v Rohtas Industries Ltd., RTP Enquiry No. 86/1984, (23 August
1984).......................................................................................................................................8
H. M. M Limited v Director General, Monopolies & Restrictive Trade Practices Commission,
(1998) 6 SCC 485.................................................................................................................30
HNG Float Glass Ltd v Saint Gobain Glass India Ltd., [2014] 118 CLA 500 (CCI): 2013
Comp LR 876 (CCI).............................................................................................................21
In Re Dreams Aakruti & Dreams Group, [2015] CCI 126......................................................12
In Re Financial Software & Systems Pvt. Ltd. v M/s ACI Worldwide Solutions Pvt. Ltd.
[2015] CCI 43.........................................................................................................................9
Indian Paint & Coating Association v Kanoria Chemicals & Industries Ltd., Case No 42 of
2016 [CCI]............................................................................................................................27
M/s Jak Communications Pvt. Ltd. V M/s Sun Direct TV Pvt. Ltd., Case No. 8/2009, (30
August 2011)........................................................................................................................12
M/s Metalrod Ltd. v M/s Religare Finvest Ltd., [2011] CCI 27...............................................13
Magnus Graphics v Nilpeter India Pvt Ltd., 2015 Comp LR 93 (CCI).....................................9
Mainejer Prasad Gupta v Bajaj Auto Ltd. & Another, 2020 SCC OnLine CCI 31.................12

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MCX Stock Exchange Ltd. v NSE India Ltd., Case No. 13/2009, ¶ 10.71 (CCI).....................30
Meecon Pvt Ltd v Premier Automobiles Ltd., RTP Enquiry No. 76/1984, (20 August 1984)...6
Mega Cabs Pvt. Ltd. v ANI Technologies Pvt. Ltd., Case No 82/2015 & 96/2015..................16
Neeraj Malhotra, Advocate v North Delhi Power Ltd, BSES Rajdhani Power Ltd. & BSES
Yamuna Power Ltd., Case No 06/2009................................................................................31
Pravahan Mohanty v HDFC Bank Ltd & Card Services Division of the HDFC Bank, [Case
No. 17/2010].........................................................................................................................15
Prints India v. Springer India Pvt. Ltd., Case 16/2010, ¶9 (CCI)............................................26
Re Applesoft and The Chief Secretary to the Government of Karnataka, the Principal
Secretary to the Government of Karnataka E-governance (DPAR-AR), the Secretary,
Kannada Ganaka Parishad, Case No. 08 of 2017 [CCI].......................................................3
Re Bharti Airtel Ltd. & Reliance Industries Ltd., Reliance Jio Infocomm Ltd., Case No 03 of
2017 [CCI]............................................................................................................................17
Re C Shanmugam & Reliance Jio Infocomm Ltd., Case No 98 of 2016 [CCI].......................17
Re Indiacan Education Pvt. Ltd. & Aldine Ventures Pvt. Ltd., Case No 71 of 2016 [CCI]....27
Re Industries and Commerce Association v Coal India Ltd., Case No. 60 of 2017 [CCI]........2
Re Meru Travel Solutions Pvt. Ltd., Case Nos 25–28 of 2017 [CCI], (20 June 2018)............15
Re Prem Pal & Amrish Mohalla Sohan Nagar & Indian Oil Corp Ltd., Case No 30 of 2016
[CCI]...............................................................................................................................16, 28
Re Prime Mag Subscription Services Pvt Ltd v Wiley India Pvt Ltd., Case No. 07 of 2016
[CCI], (28 June 2016)...........................................................................................................11
Re Vilakshan Kumar Yadav & ANI Technologies Pvt. Ltd., Case No 21 of 2016 [CCI].........17
Re Vishwambhar M Doiphode & Vodafone India Ltd., Case No 04 of 2016 [CCI]................16
RRTA v MICO, RTP Enquiry No. 3/1976, (7 December 1978)...........................................7, 14
RV Ramgopal v Shri Ram Transport Finance Co. Ltd., [2012] 108 CLA 77 (CCI)................16

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Saint Gobain Glass India Ltd. v Gujarat Gas Co Ltd., 2015 Comp LR 431 (CCI).................16
Sh. Dhanraj Pillay & others v M/S Hockey India, Case No. 73 of 2011.................................31
Shamsher Kataria Informant v Honda Siel Cars India Ltd., [2014] Comp LR 1 (CCI).. . .2, 15,
20
Sonam Sharma v Apple Inc (USA), Apple India Pvt Ltd., [2013] Comp LR 346..................4, 5
Sunil Bansal v Jaiprakash Associates Ltd., 2015 Comp LR 1009 (CCI)..............17, 18, 28, 30
Telco v RRTA, (1977) 2 SCC 55................................................................................................7
The National Stock Exchange of India Ltd. v CCI, 2014 Comp LR 304 (CompAT).............25
XYZ v Indian Oil Corp Ltd., Case 5/2018, (4 July 2018)...................................................16, 27
European Cases
Asia Motor France v Commission, [1996] ECR II- 961..........................................................24
Bookmakers’ Afternoon Greyhound Services Ltd v Amalgamated Racing Ltd., [2008] EWHC
1978 (Ch)..............................................................................................................................12
British Horseracing Board v Victor Chandler International, [2005] EWHC 1074 (Ch)........21
Case T-67/01 JCB Service v Commission, [2004] ECR II- 49................................................10
Consten & Grundig v Commission, Cases 56 & 58/64 [1966] ECR 299..........................13, 22
David Meca-Medina & Igor Majcen v Commission of the European Communities, Case C-
519/04 P................................................................................................................................23
Deutsche Telekom AG v Commission, Case C- 280/08 P [2010] ECR I- 000, [2010] 5 CMLR
1495......................................................................................................................................24
France Telecom v Commission, Case C-202/07, [2007] ECR II-107......................................18
Hoffmann-La Roche & Co. AG v Commission, [1979] ECR 461............................................29
Metro SB–Grossmarkte v Commission, Case 26/76 [1977] ECR 1875.....................................7

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Microsoft Corp v Commission, [2007] ECR II-3601, [2007] 5 CMLR 846............................24
NV NederlandscheBanden-Industrie Michelin v Commission, [1983] ECR 3461..................18
Pavel Palvov and others v Stiching Pensioenfonds, C- 180/98 etc [2000] ECR I- 6451..........3
Pronuptia de Paris v Schillgalis, Case 161/84 [1986] ECR 353.........................................9, 10
R v Re A Loyalty Bonus Scheme, (2001) ECC 19....................................................................30
Suiker Unie v. Commission, [1975] ECR 1663........................................................................24
T-201/104, Microsoft Copy v Commission, [2007] ECR II-3601...........................................32
Tetra Pak International SA v Commission, 1994 ECR II 00755.............................................21
United Brands v Commission, [1978] ECR 207................................................................15, 20
Viho v Commission, 1995 ECR..................................................................................................2
Volkswagen, OJ [2001] L 262/14.............................................................................................10
American Cases
Business Electronics, 485 U.S. at 725 [1988]..........................................................................11
Continental T.V., Inc. v. GTE Sylvania Inc. (GTE Sylvania), 433 U.S. 36 [1977]..................11
Copperweld Corp. v Independence Tube Corp., 467 US 752 (1984)........................................1
Jefferson Parish Hospital v Hyde, 466 U.S. 2 [984]................................................................27
Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 [200]..............................9
D. BOOKS
1. SM Dugar, Guide to Competition Law, (7th edn., Lexis Nexis, 2017)
2. PWS Andrews & FA Friday, Fair Trade: Resale Price Maintenance Re-examined,
(Macmillan, 1960)

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3. Richard Whish, David Bailey, Competition Law, (7th edn. Oxford University
Press, 2012)
4. F. Wijckmans, & F. Tuytschaever, Vertical Agreements In EU Competition Law,
106 (2ndedn., 2011).

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STATEMENT OF FACTS
1. Genovia, an agriculture based economy in its early days of independence, lifted
restrictions on the MNCs in the 1980s to become a middle income country.
Genovia's economic growth has always been affected by the strained relations with its
neighbours i.e., Karistan & Panem. Due to border issues with Panem, Genovia
decided to reduce their reliance on Panem for electronics & IT imports. The
Government of Genovia announced schemes like “Swatantra 2.0” & “Generate in
Genovia” for encouraging domestic enterprises.
2. In 2016, the Genovian Ministry of Electronics & Information Technology set up the
Department of Technological Development (hereinafter “DOTD”) entrusted with the
task of formulation of schemes & policies to give stimulus to IT industry. Thereafter
the Government introduced a Bill in the Parliament, to set up a statutory corporation
called Vijeta Tech Instruments Limited (hereinafter “Vijeta”), fully funded by the
Government.
3. In 2017, Vijeta started off with the assembly of smartphones for the MNC Frapple,
where it built, tested, & delivered smartphones, & provided aftermarket services for
the latter. In 2018, Vijeta introduced its own line of devices under the brand name
“Mango”. The brand promised high quality products at low prices. In 2019 to invest
in research & development of software applications that could be pre-built on the
Mango phones called ‘Offix’ applications. All Mango smartphones come preloaded
with ‘Offix’ including a free trial period of 1 month & paid subscriptions thereafter.
4. To maintain the standard & to control the sale & post-purchase services, Vijeta
follows certain practices:

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a. Vijeta sells through self-owned experience stores called “Mango Tree”, franchisees &
multi-brand outlets & circulates among them a recommended discount list containing
upper limits of the permissible discount rates.
b. Vijeta’s agreements with its suppliers do not mandate adherence to these discount
limits. Nonetheless, there have been media reports about unilateral termination of
supply agreements & of withholding of usual promotional discounts for retailers who
did not observe the restrictions on discount rates as set by Vijeta. After sales services
for Mango phones, are permitted exclusively at Mango Tree stores & are very
expensive to avail.
c. Vijeta does not recognize its warranty obligations for Mango products which have
been repaired or serviced at shops other than Mango Tree stores.
d. The authorized dealers of Vijeta are not allowed to sell any parts or accessories
manufactured by any other company except for Vijeta.
e. Vijeta voids warranty in cases where the products have been used along with non-
Mango branded accessories. Dealers which sell non-Mango branded parts &
accessories may have their dealership agreements revoked & face penalties.
5. Daily Beagle, a newspaper in one of its articles alleges that Vijeta may have
employed a ‘mystery shopping agency’ to keep tabs on the prices at which Mango
products were being sold in different stores, & whether authorised dealers were
exclusively selling Mango branded accessories & parts to customers, & not generic
brands. Vijeta refuted these claims, stating such incidents came to their notice only
when an employee visited the authorized dealers & noticed their problematic
practices.
6. Daily Beagle scrutinised the Government’s high expenditure on Vijeta’s ventures. At
the time of Vijeta's entry Macrosoft & Froggle were the market leaders in the

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document editing software market with market shares of 45% & 31% respectively. It
noted that in July 2019, Vijeta made subscription to its Offix applications completely
free for all users for 12 months to make it more convenient for its users & gained a
massive subscription base of 32% in 6 months.
7. Despite all the criticism Vijeta’s operations have remained unaffected. In addition to
the directions received from DOTD for promotion of Genovian electronics & IT
industries, Vijeta has also been directed to preinstall software & applications in
Mango products which are “Generated in Genovia”.
8. In addition to this, users are prompted to install “suggested apps”, which wholly
consists of Genovian applications only. This act has been opposed by many app
developers for it has largely affected their customer base.
9. Nikita Iyer (Informant), owned the latest Mango YLR series phone. After facing
issues with phone display, she took it to a mango store for repair where she was
appalled at the high prices of repair services being quoted.
10. Further, even though the issues were covered under the warranty at the time of
purchase, after a lot of interrogation about her usage of phone her warranty was
declared void because she has been using a different company’s wireless charger with
her Mango phone. She then raised this issue on Wittier where many other Mango
customers reported similar concerns.
11. Nikita then approached the Competition Commission of Genovia (CCG) & submitted
an Information under Section 19(1)(a) the Competition Act, 2002 detailing the above-
mentioned policies & practices adopted by Vijeta & DOTD in relation to its
applications & Mango phones.

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STATEMENT OF JURISDICTION
The Respondent has humbly approached the Competition Commission of Genovia under §
19(1)(a) of the Competition Act, 2002.

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ISSUES RAISED
ISSUE I: WHETHER VIJETA HAS CONTRAVENED § 3(4) READ WITH § 3(1) OF
THE ACT?
ISSUE II: WHETHER VIJETA HAS CONTRAVENED THE PROVISIONS UNDER
SECTION 4(2) OF THE ACT?
ISSUE III: WHETHER DOTD HAS CONTRAVENED THE PROVISIONS UNDER

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SUMMARY OF ARGUMENTS
ISSUE I: WHETHER VIJETA HAS CONTRAVENED § 3(4) READ WITH § 3(1) OF
THE ACT?
It is humbly submitted that Vijeta has not entered in any anti-competitive agreements under §
3(4) read with § 3(1) of the Act. Vijeta has no tie-in arrangement with respect to Offix
Application as the users are not compelled to pay for the subscription of Offix tools, unless
they wish to continue using the app. The instructions by Vijeta to its customers to not get
Mango products serviced at other stores are to protect any damage to the product & its
agreement with the customers are not vertical agreements. Vijeta’s dealership agreements are
for purely qualitative purposes & for the benefits of consumers so that they might not get
substandard products of other companies. Moreover, certain restrictions imposed by Vijeta
are just to keep its company afloat in the market & they have had no AAEC in the market.
Vijeta wanted to maintain a uniformity with respect to pricing of its products in the entire
market & for this purpose it circulated the discount list however, it was not compulsory for
the dealers to adhere to the limits hence, there wasn’t any ‘agreement’ to this effect & there is
no evidence of termination of dealership on this ground. All of Vijeta’s directions were given
in a non-discriminatory manner to all of its dealers establishing a franchise agreement.
Vijeta’s market share is not significant enough to cause an AAEC & its practices are rather
pro-competitive. It is through these policies that Vijeta has been able to provide quality
products at affordable rates to its customers, to improve supply & distribution of products &
accomplish its goal of making Genovia technologically independent.
Thus, Vijeta has not entered into anti-competitive agreements & has not contravened § 3(4)
read with § 3(1) of the Act

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ISSUE II: WHETHER VIJETA HAS CONTRAVENED THE PROVISIONS UNDER
It is humbly submitted that Vijeta has not contravened the provision under § 4(2) of the
Competition, Act. Firstly, Vijeta does not enjoy a dominant position in the relevant market as
it does not have a high market share in the market of smartphones. There are other companies
like Frapple, Panamese companies etc. which are operating in the same relevant market.
Vijeta’s high market share in the market of document editing software market is immaterial
as the market is entrenched with other major players like Macrosoft & Froggle with market
share of 45% & 31% respectively. The fact that Vijeta is completely funded by the Genovian
Government does not indicate its superior financial strength. Moreover, it has incurred heavy
losses for six months. Therefore, Vijeta does not have a dominant position in the relevant
Market.
Secondly, Vijeta has not abused its dominant position in the relevant Market as it has not
imposed any unfair conditions. As a standard business practice, Vijeta has provided all terms
& conditions regarding warranty & insurance on its product package as well as on online
platforms. The high prices for after sale services & parts charged by Vijeta are required to
maintain the quality of its products. By keeping its price for mango phones low, Vijeta has
not resorted to Predatory pricing as the established players in the market i.e. the Panamese
Company were charging similar prices. Moreover, the intention was not to eliminate the
competitors from the market rather to meet the competition. Vijeta’s agreement with its
dealer was not capable of posing any threat since a major portion of the market was being
sourced from other suppliers like Frapple & Panamese smartphones. Vijeta has not denied
market access to its competitors as they have a significantly larger footprint in the market
than Vijeta. The conduct of vijeta to tie up Offix & other Genovian apps was done under

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State compulsion & to maintain the standard quality of the phone. Lastly it has not used its
dominant position in one market to protect or enter another market.
ISSUE III: WHETHER DOTD HAS CONTRAVENED THE PROVISIONS UNDER
It is humbly submitted that DOTD has not contravened any provisions mentioned under §
4(2). DOTD is not an Enterprise as per §2(h) of the act as it does not perform any king of
economic or commercial activity. Alternatively, if DOTD has considered being an enterprise
it does not have dominant position in the relevant market as DOTD has not work
independently as a competitive force in the relevant market. As there is large number of other
app developers present in the Market & no restriction & obligations were there on consumers
for the installation of apps. Also, DOTD has to depend on the other enterprise to fulfil its
policies & program, the conduct of DOTD does not create entry barriers to the other app
developers. The consumers free to choose whichever application they want. Hence pre-
installation & suggestion of app does not affect the competition in the market.
Secondly, if DOTD is considered to be in a dominant position, it does not abuse its dominant
position as per § 4(2) of the act. DOTD has not imposed any unfair or discriminatory
condition, consumers have full liberty to use whichever applications they want. Pre-
installation of certain applications does create the barrier to market access for the other app
developers. Installation & suggestion of certain application does not create tying agreement
as the apps are the part of the product not a separate product. Hence it is submitted that
DOTS has not abused its dominant position in the relevant market.

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WRITTEN SUBMISSION
1. WHETHER THE INFORMATION FILED BY NIKITA IYER IS MAINTANABLE?
It is humbly submitted before the Hon’ble Bench that the Information filed by the Petitioner,
Nikita Iyer is not maintainable. The following submissions are made in this regard:
1) Vijeta had no Vertical Agreements
2) DOTD is not an Enterprise
1.1. VIJETA HAD NO VERTICAL AGREEMENTS
Prior to seeing if Vijeta had anti-competitive agreements falling under § 3(4) of the Act &
had AAEC, it is essential to satisfy: (a) Existence of agreement between enterprises, (b)
Vertical nature of agreements, (c) That agreements must be between parties of different
markets.1 Entities belonging to the same group, such as holding-subsidiaries are presumed to
be part of a ‘single economic entity’ & in order to determine the relationship of a holding-
subsidiary, factors that may be considered are: a) Ownership, b) Economic Independence c)
Degree of instructions given & the obedience to those instructions. 2 In the given case, the
Mango Tree Stores, the distributors & the authorised dealer, are owned by Vijeta 3 & they
follow its directions. it is a single economic entity & agreements between the two of them
will not be covered under § 3 of the Act.
It is impossible for the parent corporation to conspire with its unincorporated divisions by
enforcing internal agreements in order to maintain uniformity 4 & thus, Vijeta cannot have
1
Automobiles Dealers Association, Hathras, UP v Global Automobiles Ltd and Pooja Expo
India Pvt Ltd, 2012 Comp LR 827 (CCI).
2
SM Dugar, Guide to Competition Law, (7th edn, Lexis Nexis, 2017).
3
¶ 7(a), Proposition.
4
Copperweld Corp. v Independence Tube Corp., 467 US 752 (1984).

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anti-competitive agreements with its integrated distribution system.5 Thus, an agreement
between Vijeta & its distributors is not an agreement between two enterprise according to §
2(h) of the Act.6 Also, internal agreements between an enterprise & its parent company do not
fall in the ambit of § 3(4) of the Act7 which implies that Vijeta’s agreements are not vertical
in nature for the purpose of the said provision.
1.2. DOTD IS NOT AN ENTERPRISE
It is humbly submitted that § 4 is applicable only when an ‘Enterprise’ abuses its dominant
position8. An enterprise includes a person or a department of the Government engaged in any
economic activity, i.e., an activity relating to the provision of goods or services on the market,
not including any activity relating to the sovereign functions of the Government. 9 In the
present case DOTD is set up to formulate policies and program for the Genovian electronics
and IT industry. Formulation of policies does not fall in the realm of commercial or economic
activity as envisaged under the definition of the term “enterprise”. 10 The determination of an
enterprise is based on the function it carried out, irrespective of the ownership or profit-
making motive. However, it should perform the economic and commercial activity.11
In Re Applesoft12 the opposite parties were not suppliers of service in competition with other
players in the market for development of Kannada language software but had merely engaged
a third party for development of software for the government’s use and improvement of the
5
Viho v Commission, 1995 ECR.
6
Exclusive Motors Pvt Ltd v Automobili Lamborghini SPA, [2014] 121 CLA 230 (CAT).
7
Shamsher Kataria Informant v Honda Siel Cars India Ltd., [2014] Comp LR 1 (CCI).
8
Competition Act 2002, § 4(1).
9
Competition Act 2002, §2(h).
10
Re Industries and Commerce Association v Coal India Ltd., Case No. 60 of 2017 [CCI].
11
S.M Dugar, Guide to Competition law, (7th edn., Lexis Nexis, 2017).
12
Re Applesoft and The Chief Secretary to the Government of Karnataka, the Principal
Secretary to the Government of Karnataka E-governance (DPAR-AR), the Secretary,
Kannada Ganaka Parishad, Case No. 08 of 2017 [CCI].

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government’s administrative processes, they cannot be called as “enterprise” for the purposes
of the Competition Act, 2002.
It is important to be an Enterprise to perform economic activity and any activity consisting in
of goods and services on a market is an economic activity in the market. 13 In the present case
DOTD it is indeed a government department, however it does not perform any economic
activity. It only formulates policies and program. The other competitors of the market follow
these policies and program in order to improve electronic and IT industry of Genovia. DOTD
itself does not involve in the activity. The CCG has no jurisdiction over the policy
formulation
2. WHETHER VIJETA HAS CONTRAVENED SECTION 3(4) READ WITH SECTION
3(1) OF THE ACT?
It is humbly submitted before the Hon’ble Bench that Vijeta has not contravened § 3(4) read
with § 3(1) of the act on the following grounds:
1) Vijeta did not enter into any agreement under § 3 of the Act
2) Vijeta’s agreements don’t have any AAEC
2.1 VIJETA DID NOT ENTER INTO ANY AGREEMENT UNDER § 3 OF THE ACT
It is submitted that the agreements, if any, entered into by Vijeta with the distributors of its
Mango devices, are not in contravention to § 3(1) of the act since the agreements don’t fall
under § 3(4) of the Act. The following submissions are made in the same regard:
1) No tie-in arrangement within the meaning of § 3(4)(a)
2) Agreements were not an exclusive dealing arrangement
3) Vijeta did not refuse to deal

13
Pavel Palvov and others v Stiching Pensioenfonds, C- 180/98 etc [2000] ECR I- 6451.

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4) No resale price maintenance
2.1.1 No tie-in arrangement within the meaning of § 3(4)(a)
A tie-in agreement binds the purchaser to buy some other good i.e., the ‘tied product’, in
order to buy the good that one wants to buy i.e., the ‘tying product’. 14 The necessary
conditions for the same are: (a) Two separate products/services; (b) Seller has sufficient
economic power in the market of tying product to affect the market of the tied product &; (c)
The effect must be substantial. 15 A tie-in arrangement is illegal only if it causes AAEC, it is
not illegal per se as they don’t always hamper the competition, at times, they can even
strengthen it.16
In the case of Sonam Sharma v Apple Inc (USA), Apple India Pvt. Ltd.,17 Commission had
framed three questions to determine if Apple’s tying arrangement with Vodafone & Airtel
had AAEC: (a) Could Airtel & Vodafone customers use other smartphones; (b) Could iPhone
users avail other mobile service providers’ services &; (c) Was there a foreclosure in the
market of both, the smartphones & the mobile services; as a consequence of the arrangement.
In the instant case, the customers can install Offix applications on non-mango branded
smartphones,18 Mango phone users can install other apps on their phones 19 as well & there
was no restriction in this regard for any of the products hence, there is no AAEC from the
tying arrangement. The incorporation of Offix apps in the Mango smartphones is a common
practice in the market among other smartphone brands as well which pre-install some of the
applications,20 but it is not mandatory for the users to pay for the subscription of Offix
14
Competition Act 2002, § 3(4)(a).
15
Sonam Sharma v Apple Inc (USA), Apple India Pvt Ltd., [2013] Comp LR 346.
16
17
Sonam Sharma v Apple Inc (USA), Apple India Pvt Ltd., [2013] Comp LR 346.
18
¶ 30, List of Clarifications.
19
20

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application unless they want to keep using the apps after the expiry of free promotion period.
21
Moreover, Vijeta has instructed its customers to not get their mobile phones serviced at other
stores to ensure proper maintenance of the devices 22 & to prevent an infringement of Vijeta’s
devices as provided under § 3(5)(f) of the Act so, it is not a tie-in arrangement. 23 Moreover,
Vijeta’s warranty policy clearly states the terms & conditions that in case the customer uses a
non-Mango brand accessory, their warranty would be voided. 24 Since the agreement of sale is
between Vijeta & the customers, § 3(4) cannot apply as a customer is not a part of the
production/supply chain.25
Thus, it is clear from the facts of this case that Vijeta had no tie-in arrangements with its
distributors which could have an AAEC.
2.1.2 Agreements were not an exclusive dealing arrangement
An exclusive dealing arrangement is said to be when sellers agree to sell to only certain
buyers or when sellers agree to sell to those buyers that agree to buy only from those sellers. 26
Again, Vijeta’s condition to get Mango devices repaired at Mango Tree Stores only27 is not
an agreement in exclusive supply as per § 3(4)(b) of the Act as the consumers do not form a
part of the manufacturing/supply chain.28 Moreover, specialized service & a genuine supply
21
22
¶ 7(b), Proposition.
23
Meecon Pvt Ltd v Premier Automobiles Ltd., RTP Enquiry No. 76/1984, (20 August 1984).
24
25
Consumer Online Foundation v Tata Sky Ltd, Dish TV India Ltd, Reliance Big TV Ltd &
Sun Direct TV Pvt. Ltd., Case No. 2/2009.
26
27
¶ 7(c), Proposition.
28
Financial Software & Systems Pvt Ltd Informant v ACI Worldwide Solutions Pvt Ltd., 2015
Comp LR 253 (CCI).

Page |6
of parts is to avail a neutral source of supply to customer & is an acceptable exclusive
arrangement29 & Vijeta’s exclusive dealership fall under this exception.
There are several companies in the market of smartphones, including the Panamese
companies, & in order to fulfil its goal of promoting Genovian made goods, Vijeta, being a
new entrant in the market, had to make an exclusive-supply agreement with its authorised
dealers to not sell parts & accessories of non-mango brands30 but this had no AAEC31 as
Vijeta had no significant market share in the overall after sales services as well. 32 An
exclusive-dealership for spare-parts & after-sales maintenance services doesn’t impede
competition, rather promotes it.33 The exclusive distribution agreements, applied in a non-
discriminatory manner, to ensure that there is no compromise on quality of the products, may
not be anti-competitive.34
In the case of Metro v Commission,35three tests have been laid down to determine if the
exclusive distribution agreements are purely for qualitative reasons of the products: (a) The
product must necessitate selective distribution; (b) The selective treatment must be made
uniformly to all resellers without any discrimination &; (c) Restrictions mustn’t go any
further than necessary. Mango smartphones must be used only with Mango parts &
accessories to prevent any damage to the device & secure customer’s warranty. Vijeta’s
agreements with all its authorised dealers were same & the restrictions were only necessary
for Vijeta’s Mango products to sustain in the market because of their high pricing.
29
RRTA v MICO, RTP Enquiry No. 3/1976, (7 December 1978).
30
¶ 7(d), Proposition.
31
Amit Auto Agencies v King Kaveri Trading Co., 2013 Comp LR 892 (CCI).
32
¶ 69, Proposiiton.
33
Telco v RRTA, (1977) 2 SCC 55.
34
Metro SB–Grossmarkte v Commission, Case 26/76 [1977] ECR 1875.
35
Ibid.

Page |7
Hence, it is humbly submitted that Vijeta’s agreements with authorised dealers & its warranty
obligations towards the customers was not an arrangement in exclusive dealing as per § 3(4)
(b) & (c) of the Act.
2.1.3 Vijeta did not refuse to deal
A refusal to deal under § 3(4)(d) includes a refusal to sell or to buy. 36 The essential conditions
to establish a refusal to deal are: (a) Due to inadequate supplies of the product, the buyer’s
business had been substantially affected; (b) Inadequacy in supplies is caused due to lack of
competition; (c) Shortage of supplies even after the buyer agrees to the manufacturer’s terms
of trade; (d) The quantity of the product for supply is in abundance &; (e) The refusal to
supply has AAEC.37
Vijeta appointed select dealers for the distribution of Mango products is not a refusal to
deal.38 Although, Vijeta did recommend a discount list to its sellers to maintain a uniform
price of its products throughout the country,39 the dealership agreement did not mandate any
adherence for the dealers.40 Vijeta did not allow any seller to deal in non-Mango branded
products, accessories & parts41 to because it did not want the customers to be duped into
buying generic brand accessories.42 The agreement between Vijeta & distributors of Mango
products was a franchising agreement & in such agreements, some restrictive provisions to
maintain a common identity of the franchisee & to protect its intellectual property cannot be
36
37
Ibid.
38
Gulshan Rai Jain & Sons v Rohtas Industries Ltd., RTP Enquiry No. 86/1984, (23 August
1984).
39
40
41
¶ 7(d), Proposition.
42
¶ 8, Proposition.

Page |8
said to be anti-competitive as it is of great significance to the customers that all the
franchisees achieve the same standards.43
Moreover, to affect competition in the market by an agreement in refusal to deal with the
products of the competitors, the enterprise must have a strong market power in the relevant
market,44 which Vijeta did not have.45 Vijeta’s warranty policy is an agreement with the
customer who don’t form part of the supply/distribution chain,46 hence there can be no refusal
to deal in that agreement.47
In accordance with the above-stated arguments, it is humbly submitted that Vijeta’s
agreements were not a refusal to deal within the meaning of § 3(4)(d) of the Act.
2.1.4 Agreements of resale price maintenance
When a manufacturer fixes the price at which a seller must sell the product, it is called Resale
Price Maintenance (RPM) within the meaning of § 3(4)(e) of the Act. 48 RPM can be of three
kinds, a fixed price, a maximum price & a minimum price however, an agreement of RPM is
not per se anti-competitive until it has AAEC. 49
In the instant case, Vijeta circulated a discount list containing maximum limit of discount
rates, to all the stores selling Mango devices 50 to bring uniformity in the resale price of the
products however, this does not show an ‘agreement’ or meeting of minds between Vijeta &
43
Pronuptia de Paris v Schillgalis, Case 161/84 [1986] ECR 353.
44
Accessories World Car Audio Private Limited v Sony India Private Limited & Another,
2020 SCC OnLine CCI 17.
45
¶ 69, List of Clarificaions.
46
In Re Financial Software & Systems Pvt. Ltd. v M/s ACI Worldwide Solutions Pvt. Ltd.
[2015] CCI 43.
47
Magnus Graphics v Nilpeter India Pvt Ltd., 2015 Comp LR 93 (CCI).
48
PWS Andrews & FA Friday, Fair Trade: Resale Price Maintenance Re-examined,
(Macmillan, 1960).
49
50

Page |9
its dealers.51 According to Vijeta’s proposed agreement, adhering to these discount limits was
not compulsory52 & it cannot be held liable for any terms & conditions it didn’t have an
agreement upon.53 Mere performance of directed tasks doesn’t constitute meeting of minds &
hence, not an agreement under § 2(b) of the Act.54 Also, a maximum discount limit cap
implies that Vijeta’s attempt was to set a minimum price and agreements of such nature are
not to be treated as per se illegal as it can have pro-competitive effects as well.55
Furthermore, Vijeta circulated this discount list to its franchisee stores in order to maintain a
uniform pricing in the interest of its consumers. 56 In absence of any evidence, it cannot be
said that Vijeta had an anti-competitive agreement & there is no cogent evidence of the fact
that Vijeta had terminated the dealership agreements of the dealers who did not follow its
instructions as media reports are just mere speculations.57 Further, since Vijeta’s market share
is after sales services is not significant58 thus, its agreement could not have an AAEC.59
Therefore, it is humbly submitted that Vijeta had not imposed any restriction on the resale
price of its products & had not entered in anti-competitive RPM agreements with the
authorised dealers of Mango Products.
2.2 VIJETA’S AGREEMENTS HAVE NO AAEC IN THE MARKET
It is humbly submitted before this Hon’ble Bench that Vijeta’s agreement are not anti-
competitive as per § 3(1) as they have no appreciable adverse effect on competition (AAEC).
The following submissions are made in this regard:

51
Case T-67/01 JCB Service v Commission, [2004] ECR II- 49.
52
53
Volkswagen, OJ [2001] L 262/14.
54
55
Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 [200].
56
Pronuptia de Paris v Schillgalis, Case 161/84 [1986] ECR 353.
57
58
59
Re Prime Mag Subscription Services Pvt Ltd v Wiley India Pvt Ltd., Case No. 07 of 2016
[CCI], (28 June 2016).

P a g e | 10
1. Absence of negative factors under § 19(3) of the Act
2. Positive factors under § 19(3) of the Act
2.2.1 Absence of negative factors under § 19(3) of the Act
In order to determine AAEC as a result of agreements under § 3(4) of the Act, factors given
under § 19(3) of the Act are to be given due consideration. 60 Agreements creating barriers to
new entrants in the market, driving existing competitors out of the market & foreclosing
competition by entering into the market are said to have ‘negative factors’ & cause AAEC on
the competition61 & in the absence of these factors, there can be no contravention of § 3(4) of
the Act.62
From the arguments made above, it is clear that Vijeta has not entered into agreements in
contravention to § 3(4) of the Act, which could have the effect of driving its competitors out
of the market63 & due to absence of market power, Vijeta cannot foreclose competition in the
market.64 Vijeta’s promotion schemes of providing Offix apps subscriptions for 12 months is
a mere promotion scheme,65 to survive through the tough competition posed by other
Oversees companies, it is not to create barriers for new entrants in the market or drive the
existing competitors out of it.66
Certain restrictions are necessary to impose to achieve a legitimate commercial goal such as
establishing a new enterprise in the market & the agreements in these restrictions are not anti-
60
FICCI – Multiplex Association of India v United Producers/Distributors Forum, 2011
Comp LR 79 (CCI).
61
Automobiles Dealers Association, Hathras, UP v Global Automobiles Ltd & Pooja Expo
India Pvt Ltd, 2012 Comp LR 827 (CCI).
62
In Re Dreams Aakruti & Dreams Group, [2015] CCI 126.
63
Accessories World Car Audio Private Limited v Sony India Private Limited & Another,
2020 SCC OnLine CCI 17.
64
Mainejer Prasad Gupta v Bajaj Auto Ltd. & Another, 2020 SCC OnLine CCI 31.
65
¶ 9, Proposition.
66
M/s Jak Communications Pvt. Ltd. V M/s Sun Direct TV Pvt. Ltd., Case No. 8/2009, (30
August 2011).

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competitive67 rather, they are pro-competitive & such pro-competitive retrains in majority of
cases will prevail over any anti-competitive effect to the inter-brand 68 as well as intra-brand
competition.69 As per the rule of reason, it is necessary to strike a balance between an
agreement’s pro-competitive & anti-competitive effects to determine if the restrictive
provisions should be barred & if the former outweighs the latter, the agreements won’t be
anti-competitive.70 Furthermore, in the absence of absolute territorial protection, no
agreement in exclusive-distribution could be anti-competitive.71
Thus, it is submitted that due to the absence of negative factors, Vijeta’s agreements did not
cause AAEC in the market.
2.2.2 Positive factors under § 3(4)
Agreements that accrue of benefits to customers, improve production or distribution of goods
& services &, promote technical, scientific or economic development by production &
distribution of the goods & services are said to have ‘positive factors’. 72 Vijeta has Mango
Tree Stores & authorised dealers for repairing Mango devices & selling only authentic parts
& accessories to the consumers to provide them with the best services & a neutral source of
supply.73
It has established these stores in Tier 1 cities & is expanding its reach to Tier 2 & Tier 3
cities,74 & also sells its products on e-commerce websites. 75 This shows improvement in
67
Bookmakers’ Afternoon Greyhound Services Ltd v Amalgamated Racing Ltd., [2008]
EWHC 1978 (Ch).
68
Continental T.V., Inc. v. GTE Sylvania Inc. (GTE Sylvania), 433 U.S. 36 [1977].
69
Business Electronics, 485 U.S. at 725 [1988].
70
Richard Whish, David Bailey, Competition Law, (7th edn. Oxford University Press, 2012).
71
Consten & Grundig v Commission, Cases 56 & 58/64 [1966] ECR 299.
72
Automobiles Dealers Association, Hathras, UP v Global Automobiles Ltd. & Pooja Expo
India Pvt Ltd., 2012 Comp LR 827 (CCI).
73
RRTA v MICO, RTP Enquiry No. 3/1976, (7 December 1978).
74
75

P a g e | 12
production & distribution. The Offix applications come with a free subscription of 12 months
& a free trial period of one month after that. The customers have appreciated the better
quality & user experience of the applications as well which is an accrual of benefits.76
Moreover, Vijeta’s entire purpose of coming into existence was promotion of technology &
development in the country which it has fulfilled by manufacturing high quality smartphones
at affordable prices, total customer care support system, creating indigenous Genovian Apps
that are very useful to the customers. Further, to prevent its customers from being given
generic brand products which may cause problems in their devices, Vijeta did not allow its
authorised dealers to deal in non-Mango products.
In accordance with the facts & circumstances of the case, it is humbly submitted that Vijeta’s
agreements are not causing AAEC.
3. WHETHER VIJETA HAS CONTRAVENED THE PROVISIONS UNDER SECTION
4(2) OF THE ACT?
It is humbly submitted that Vijeta’s conduct has not amounted to contravention of the
provisions under section 4(2) of the Competition Act in the relevant market of smartphones in
Genovia under the following contentions:
1. Vijeta does not enjoy a dominant position in the relevant market
2. Vijeta has not abused its dominant position
76
¶ 9, Proposition.

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3.1 VIJETA DOES NOT ENJOY A DOMINANT POSITION IN THE RELEVANT
MARKET
It is humbly submitted that Vijeta does not enjoy a dominant position in the relevant market
of smartphones. Section 4 defines dominant position as a position of strength 77, enjoyed by an
enterprise, in the relevant market, in India, which enables it to (i) operate independently 78 of
competitive forces prevailing in the relevant market; or (ii) affect its competitors or
consumers or the relevant market in its favour 79 & consequently prevent effective
competition80 from being maintained in the relevant market.81
Section 19(4) has laid down several factors which the Commission while enquiring whether
an enterprise enjoys a dominant position or not under section 4 must take into consideration.
The intent of this provision signifies that there cannot be more than one dominant enterprise
in the relevant market at a particular point of time.82 The existence of two strong players in
the market is indicative of competition between them, unless they have agreed not to
compete.83
(a) Market Share: An enterprise having a large market share may be constrained by that
of other large competitors. Such an enterprise solely on the ground of questionable
high market share could not be considered to be in a dominant position in the relevant
market.84 Presence of other competitors operating in the market, posing competitive
77
Pravahan Mohanty v HDFC Bank Ltd & Card Services Division of the HDFC Bank, [Case
No. 17/2010].
78
Shamsher Kataria Informant v Honda Siel Cars India Ltd., [2014] Comp LR 1 (CCI).
79
Competition Act 2002, §4.
80
United Brands v Commission, [1978] ECR 207.
81
Treaty of the European Union, Art. 102.
82
Re Meru Travel Solutions Pvt. Ltd., Case Nos 25–28 of 2017 [CCI], (20 June 2018).
83
XYZ v Indian Oil Corp Ltd., Case 5/2018, (4 July 2018).
84
Saint Gobain Glass India Ltd. v Gujarat Gas Co Ltd., 2015 Comp LR 431 (CCI).

P a g e | 14
constraints upon the concerned enterprise85 is indicative of the fact that there is no
dominant position held in the relevant market.
In the present case Vijeta does not have a high market share in the relevant market of
smartphones.86 There were other companies, for instance Frapple, Panamese
companies (offering cheap feature loaded products) & many more with high-end
smartphones providing stiff competition87 in the market of smartphones. Therefore,
where there exists a number of entities88 providing the same products & services in
the market, Vijeta cannot be held to be dominant in the relevant market.89
(b) Size & importance of the competitors: Importance & size of the competitors in the
market are other factors for determining dominance in the market. Where the market
is competitive, none of the players can be said to be dominant in the market. 90 Vijeta
has a high market share (subscription base) of 32% in the relevant market of
Document editing software market & not in the market of smartphones.91 However the
market is entrenched with other major players like Macrosoft & Froggle with market
share of 45% & 31% respectively at time of Vijeta’s entry. Therefore because of the
presence of other major players92 in the market being close competitors93 Vijeta
cannot be said to be in a dominant position even in the market of Document editing
software.
(c) Size & resources of the enterprise: The superior financial strength in the market
coupled with superior resources is an important indicator of dominance of an

85
Re Prem Pal & Amrish Mohalla Sohan Nagar & Indian Oil Corp Ltd., Case No 30 of 2016
[CCI].
86
¶20, List of clarifications.
87
Re Vishwambhar M Doiphode & Vodafone India Ltd., Case No 04 of 2016 [CCI].
88
Mega Cabs Pvt. Ltd. v ANI Technologies Pvt. Ltd., Case No 82/2015 & 96/2015.
89
RV Ramgopal v Shri Ram Transport Finance Co. Ltd., [2012] 108 CLA 77 (CCI).
90
Re Vilakshan Kumar Yadav & ANI Technologies Pvt. Ltd., Case No 21 of 2016 [CCI].
91
¶ 9, Moot Proposition.
92
Sunil Bansal v Jaiprakash Associates Ltd., 2015 Comp LR 1009 (CCI).
93
All India Online Vendors Association v Flipkart India Pvt. Ltd., Case No 20 of 2018 [CCI].

P a g e | 15
enterprise. The Commission in Bharti Airtel Case94 has noted that financial strength
was relevant but not the sole factor to determine the dominant position of an
enterprise.95 Financial resources of an enterprise comprise of cash reserves as well as
the surplus.96 Even though Vijeta was being completely funded by the Genovian
Government, it cannot be said to have a superior financial strength than its
competitors. Vijeta kept the selling price of its software lower than that of its cost
price & incurred heavy losses for the initial period of 6 months because of its
dedication to provide the Genovian public with feature loaded products at cheap
prices.97
Therefore, it can be concluded that Vijeta does not enjoy a dominant position in the market of
smartphones.
3.2 VIJETA HAS NOT ABUSED ITS DOMINANT POSITION
It is submitted before the bench that even if Vijeta holds a dominant position, it has not
abused its dominance in the relevant market of smartphones. Dominance per se is not illegal,
however, dominant undertakings do have a “special responsibility”98 towards the competitive
process to not allow its behaviour impair 99 genuine, undistorted competition on the internal
market.100 Section 4 of the Act lays down an exhaustive list of illegitimate competitive
behaviour which when resorted to by an enterprise enjoying dominant position in a relevant
94
Re Bharti Airtel Ltd. & Reliance Industries Ltd., Reliance Jio Infocomm Ltd., Case No 03
of 2017 [CCI].
95
Re C Shanmugam & Reliance Jio Infocomm Ltd., Case No 98 of 2016 [CCI].
96
Sunil Bansal v Jaiprakash Associates Ltd., 2015 Comp LR 1009 (CCI)
97
¶ 21, list of clarifications.
98
NV NederlandscheBanden-Industrie Michelin v Commission, [1983] ECR 3461.
99
Abuse of a dominant position, Understanding Competition Law, Office of Fair Trading,
December, 2004. Available at:
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_dat
a/file/284422/oft402.pdf> (last accessed in February 2021).
100
France Telecom v Commission, Case C-202/07, [2007] ECR II-107.

P a g e | 16
market shall constitute abuse of dominant position &, therefore, are prohibited. The following
submissions are made in Vijeta’s defense:
1. No unfair conditions imposed
2. No imposition of unfair prices
3. No limitation or restriction on market access to Dealers
4. No denial of market access to Competitors
5. No tie-in agreement
6. No contravention of § 4(2)(e)
3.2.1 No unfair conditions imposed
It is humbly submitted that section 4(2)(a)(i) prohibits the abuse of dominant position by an
enterprise by imposing unfair or discriminatory conditions in purchase or sale of goods or
service.101 However the explanation to this provision states that this section shall not apply to
such discriminatory conditions or prices which may be adopted to meet the competition. The
Commission in Ashish Ahuja case observed that conducts which are considered to be a part of
normal business practice cannot be termed as abuse of dominance.102
Vijeta as its business policy does not recognise its warranty obligations for those Mango
products which have been repaired or serviced at shops other than Mango Tree Stores &
where the products have been used along with non-Mango branded accessories. 103 Moreover
as standard business practice, Vijeta has provided all terms & conditions related to usage,
warranty & insurance on its product package as well as on online e-commerce sites as well.104
101
Competition Act 2002, § 4(2)(a)(i).
102
Ashish Ahuja v SanDisk Corporation & others, Case No. 17 of 2014.
103
¶ 7, Moot Proposition.
104

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The conditions imposed by Vijeta on its authorized dealers not to sell products of any non-
generic brand other than Mango cannot be considered unfair & discriminatory. Vijeta being a
new entrant in the market has only limited Mango Tree stores in Genovia & is still
expanding. Also, the other manufacturers who have been present in Genovia for the last 10
years have a significantly larger footprint than Vijeta in terms of their retail stores across the
country.105 Therefore, the conditions imposed by Vijeta was done to meet the competition in
the market & would have insignificant impact on the market of other manufacturers.
3.2.2 No imposition of unfair prices
It is humbly submitted that section 4(2)(a)(ii) prohibits the imposition of unfair price in
purchase or sale of goods or service. The provision imposes prohibitions on both
“exclusionary” & “exploitative” prices in the market. 106 The section does not cover within its
ambit those conducts which are imposed to meet the competition in the market.
a) EXCESSIVE PRICING
A price is said to be excessive when it has no reasonable relation to the economic
value of the product supplied.107 According to the test laid down in the United Brands
Case to determine excessive pricing, the first stage aims to identify the profit margin
of the dominant enterprise & then to use that information to demonstrate whether the
price is “excessive”.
The unfairness of a price is based on the notion that such price is unrelated to the
‘economic value’ of the product & has been charged by abusing the dominant position
to affect its competitors or consumers in its favour. 108 In determining whether a price
105
¶ 75, list of Clarifications.
106
SM Dugar, Guide to Competition Law, (7thedn, Lexis Nexis, 2017).
107
United Brands Co & United Brands Continental BV v Commission, 1978 ECR 207.
108
Shamsher Kataria v Honda Siel Cars India Ltd., 2014 Comp LR 1 (CCI).

P a g e | 18
is unfair it is important to consider the impact on the end consumer & all of the
market conditions.109
In the instant case, although Vijeta requires its smartphone users to use its exclusive
after sale services which are very expensive, however, the market share of Vijeta in
overall after sale services market is insignificant. 110 Vijeta claims that the high prices
for all these services & parts are required to maintain the quality of its products.
b) PREDATORY PRICING
It is humbly submitted that the Commission in the Saint Gobain Glass case observed
that the allegation of predatory pricing was not found to be true on ground that the
pricing of relevant products was similar in the case of established players 111 in the
market. Moreover, the conduct can be said to be abusive only if such pricing is done
with an intent to eliminate the competitors from the relevant market.112
In the present case, Vijeta’s conduct has not amounted to Predatory pricing as the
established players in the market i.e., the Panamese Company were charging the same
prices. They were also selling feature loaded smartphones at cheap prices. Moreover,
the intention of Vijeta was not to eliminate the competitors from the market rather to
meet the competition existing in the market. Moreover, Genovia did not stop
importing Panemese smartphones after the trade war113 & Panemese smartphones
controlled the majority of the smartphones market in Genovia. 114 Therefore it cannot
be substantiated that Vijeta was practicing predatory pricing tactics.
3.2.3 No limitation or restriction on market access to Dealers

109
British Horseracing Board v Victor Chandler International, [2005] EWHC 1074 (Ch).
110
111
HNG Float Glass Ltd v Saint Gobain Glass India Ltd., [2014] 118 CLA 500 (CCI): 2013
Comp LR 876 (CCI).
112
Tetra Pak International SA v Commission, 1994 ECR II 00755.
113
114

P a g e | 19
It is humbly submitted that when an enterprise limits or restricts production of goods or
provision of services or market it abuses its dominance in its relevant market. 115 However,
when an enterprise is not affecting the relevant market in its favour since supplies of a major
portion of the market are being sourced from other suppliers, it cannot be said that there was
any violation of section 4(2)(c) of the competition act as the arrangement did not restrict or
limit production of goods or provision of services or market or denied market access.116
In the instant case, the agreements between Vijeta & its authorized dealers were not capable
of posing any threat in the relevant market 117 since a major portion of the market was being
sourced from other suppliers like Frapple & Panamese smartphones 118 & they have a
significantly larger footprint than Vijeta in terms of their retail stores across the country 119.
Vijeta’s market share in the relevant market of smartphones is insignificant. Therefore,
Vijeta’s position in the market & its arrangement did not restrict or limit production of goods
or provision of services or market or denied market access.
3.2.4 No denial of market access to Competitors
It is humbly submitted that an enterprise that indulges in practice or practices resulting in
denial of market access120 to its competitors in any manner is abusing its dominance in the
relevant market. However, in the case of David Meca-Medina & Igor Majcen v Commission
121
of the European Communities applying the inherence proportionality test the court held
that if the alleged restrictive conditions are inherent to the objectives of the enterprise & the
115
Competition Act 2002, § 4(2)(a)(ii).
116
Explosive Manufacturers Welfare Association v Coal India Ltd & its Officers, 2012 Comp
LR 525 (CCI).
117
Consten & Grundig v Commission, [1966] ECR 299.
118
119
120
Competition Act 2002, § 4(2)(c).
121
David Meca-Medina & Igor Majcen v Commission of the European Communities, Case C-
519/04 P.

P a g e | 20
effect of restrictive condition on economic competition is proportionate to legitimate interest
perused, the same may not be viewed as anti-competitive.
In the present case Vijeta was a new entrant in the market, established by DOTD was to
further the Government’s goal of becoming self-reliant in the electronics & IT industries & to
decrease its reliance on Panemese smartphones which controlled the majority of the
smartphone market in Genovia. Moreover, the existing players in the market like Frapple,
Panemese companies & other manufacturers have a significantly larger footprint than Vijeta
in terms of their retail stores across the country. Therefore, Vijeta’s conduct cannot be
considered anti-competitive.
3.2.5 No tie-in agreement
It is humbly submitted that under the Competition Act, 2002 forcing supplementary
obligations by their nature or commercial usage have no connection with the subject matter of
the contract are anti-competitive prohibited.122 However if the enterprise ties products for
reasons of quality or good usage of the products necessary to protect the health or safety of
the customers or to maintain the efficiency of the products, the act cannot be said to be anti-
competitive.123
However, the rule is subject to the exceptions of ‘state compulsion’ & where a legal
framework leaves no possibility for competitive activity on the part of undertakings, that is to
say where they operate on highly regulated markets. These two defences have often been
invoked, but they are narrowly applied & almost invariably failed. Where undertakings
122
Competition Act 2002, § 4(2)(d).
123
Microsoft Corp v Commission, [2007] ECR II-3601, [2007] 5 CMLR 846

P a g e | 21
genuinely have no room for autonomous behaviour, they would not be liable for infringing
Article 101124 & 102.125
Vijeta, a statutory corporation, was set up under a legislation & operates on the directions of
DOTD. Its acts are highly regulated by DOTD.126 Vijeta has been directed by DOTD to pre-
install software & applications that are generated in Genovia in the mango smartphones.
DOTD has also directed Vijeta to include Genovian applications in suggested apps. 127 Vijeta
being a statutory undertaking is left with no choice but to follow the direction of the state.
In addition to this, the conduct of Vijeta of pre-installation of Offix applications in the mango
smartphones is a common business practice in the relevant market as other phone
manufacturers such as Frapple also provide pre-installed applications128 on their respective
smartphones, comprising their own in-house developed apps as well as apps of other
developers. Therefore, it can be concluded that Vijeta’s conduct cannot be regarded as anti-
competitive.
3.2.6 No contravention of Section 4(2)(e)
It is humbly submitted that when an enterprise uses its dominant position in one relevant
market to enter into, or protect, another relevant market, it amounts to abuse of its dominant
position.129 The Tribunal in the MCX Stock Exchange case, 130 laid down three essential
conditions that were to be satisfied to be held guilty of the breach of section 4(2)(e). Firstly,
the enterprise has a dominant position in one market; secondly, the enterprise is dealing in not
124
Deutsche Telekom AG v Commission, Case C- 280/08 P [2010] ECR I- 000, [2010] 5
CMLR 1495.
125
Asia Motor France v Commission, [1996] ECR II- 961.
126
Suiker Unie v. Commission, [1975] ECR 1663.
127
¶ 10, Proposition.
128
129
Competition Act 2002, § 4(2)(e).
130
The National Stock Exchange of India Ltd. v CCI, 2014 Comp LR 304 (CompAT).

P a g e | 22
only the market in which it is dominant, but some other market also; & thirdly, It wants to
enter into an entirely new market or protect the same.
In the present case Vijeta has not used its dominant position in one market to protect another
relevant market. Firstly, being a new entrant does not enjoy a dominant position in the
relevant market of smartphones. Its market share in the after-sale services is also
insignificant. Therefore, it cannot be said that Vijeta is using its dominant position in one
market to enter or protect a completely different market.
4. WHETHER DOTD HAS CONTRAVENED THE PROVISIONS UNDER SECTION 4(2)
OF THE ACT?
It is humbly submitted that DOTD has not violated §4 of the Act. The following submissions
are made in this regard:
1. DOTD is not in a dominant position in the relevant market
2. DOTD had not abused its dominant position in the market
4.1 DOTD IS NOT DOMINANT IN THE RELEVANT MARKET
Relevant Market
The ascertainment of the relevant market is essential for analysing a case of abuse of
dominance131 because the dominant position of an enterprise or a group has to be established
in the identified relevant market. 132 When determining what constitutes the relevant market,
due regard must be given to both the relevant product as well as geographic market. 133 All
those products or services which are regarded as interchangeable for the consumer form part
131
Prints India v Springer India Pvt. Ltd., Case 16/2010, ¶9 (CCI).
132
Competition Act 2002, Explanation 2, §4(2).
133
Competition Act 2002 §19(5).

P a g e | 23
of the same relevant product market.134 Relevant product market is primarily determined by
gauging product substitutability from a consumer’s perspective.135
It is humbly submitted that the relevant market must be identified according to the particular
facts of the case at hand. 136 In the present case DOTD’s main concern is to deal with the
policy making process of Genovian & IT industry.
Hence the relevant market in the present matter will be ‘Genovian electronics & IT industry’.
a) DOTD does not operate independently of a competitive force in the relevant market
It is humbly submitted that DOTD does not enjoy dominant position in the relevant
market of electronics & IT. §4(1) of the Act states that no enterprise or group shall
abuse its dominant position.137A dominant position means a position of strength,
enjoyed by an enterprise, in the relevant market, 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.138 § 19(4) of the act
prescribe the factors that must be considered while enquiring the dominant position of
an enterprise. Large number of other app developers was present in the market,
implying that consumers had applications available in the market to choose. The
presence to two strong players in the market shows the competition between them,
unless they have agreed not to compete. 139 In the light to present of other 140 app
developers in the market, DOTD not operate independently of market forces
134
Competition Act 2002, §2(t).
135
F. Wijckmans, & F. Tuytschaever, Vertical Agreements In EU Competition Law, 106
nd
(2 edn., 2011).
136
Aberdeen Journals Ltd. v Director General of Fair Trading, (No.1) [2002] CAT 4.
137
Competition Act 2002, §4(1).
138
Competition Act, 2002 Explanation (a) to §4.
139
XYZ v Inian Oil Corp. Ltd., Case 5/2018, decided on 4/7/18.
140
Indian Paint & Coating Association v Kanoria Chemicals & Industries Ltd., Case No 42
of 2016 [CCI].

P a g e | 24
prevailing in the relevant market. 141 DOTD is a department formed by Government in
ordered to enhance the Genovian IT & electronics industry & tasked to formulate
schemes, policies & programmes for the same; it does not work independently rather
it depends on some other enterprise.
b) DOTD has not affected competition, consumer & the relevant market in its favour
An enterprise should have the ability to engage in conduct that excludes competition
or prevents the entry of newcomers into the relevant market, & hence is able to
influence the relevant market in its favour.142 While determining the dominant
position of an enterprise, creation of entry barriers should be taken into
consideration.143
Sunil Bansal v Jaiprakash Associates Ltd.,144 it was noted that a large number of
options were available to the consumers who could actually choose from a wide range
of projects launched/developed by several builders & developers in the geographic
region. Further, rapid growth of real estate sector together with the presence of several
big, small & medium sized companies in the market was demonstrative of the absence
of entry barriers/foreclosure of competition.
Presence of other competitors operating in the market, posing competitive constraints
upon the concerned enterprise is indicative of the fact that there is no dominant
position held in the relevant market.145 In the instant case it is very clear that many
Genovian & Non Genovian app developer companies are present in the market.
141
Re Indiacan Education Pvt. Ltd. & Aldine Ventures Pvt. Ltd., Case No 71 of 2016 [CCI].
142
BBI/Boosey & Hawkes: Interim Measures,1987 OJ (L 286) 36, ¶18 (EC); §19(4)(h),
Competition Act, 2002.
143
Competition Act 20002, § 19(4)(h).
144
Sunil Bansal v Jaiprakash Associates Ltd., 2015 Comp LR 1009 (CCI).
145
Re Prem Pal & Amrish Mohalla Sohan Nagar & Indian Oil Corp Ltd., Case No 30 of
2016 [CCI].

P a g e | 25
Consumers are free to choose applications from the wide range of applications
available in the market leads to absence of entry barriers in the relevant market.
Therefore, it can be concluded that DOTD is not in a dominant position in the relevant
market.
4.2 DOTD HAS NOT ABUSED ITS DOMINANT POSITION IN THE MARKET
The concept of abuse is an objective concept relating to the behaviour of an undertaking in an
dominant position which is such as to influence the structure of market where, as a result of
the very presence of the undertaking in question, the degree of the competition is weekend &
which, through recourse to methods different from those which condition normal competition
in products or services on the basis of the transaction or commercial operators, has the effect,
of hindering the maintenance of the degree of competition still existing in the market or the
growth of the competition.146
It is humbly submitted that without prejudice to the above contentions, Section 4 of the Act
prescribes types of conduct that will be considered abusive if carried out by a dominant
enterprise. In the instant case even if DOTD is identified to in a dominant position it’s
conduct was not in violation of § 4(2) of the Competition Act, 2002.
1. DOTD has not imposed unfair & discriminatory conditions
2. DOTD has not denied market access
3. No Tying-off arrangements
4.2.1 DOTD has not imposed unfair & discriminatory conditions
It is submitted that §4(2)(a)(i) of the Act provides the indirect or direct imposition of unfair or
discriminatory conditions in the purchase or sale of goods of service constitutes abuse of
146
Hoffmann-La Roche & Co. AG v Commission, [1979] ECR 461.

P a g e | 26
dominant position.147The term ‘unfair’ has not been defined in the Act. 148 It has to be
examined either in the context of unfairness in relation to customers, or in relation to a
competitor.149
H.M.M Limited v. Director General, Monopolies & Restrictive Trade Practices
Commission,150 observed that for holding a trade practices to be unfair, it must be found that it
causes loss or injury to the consumer. Usual method of competition are permitted & will only
become unfair it there are particular circumstances which make competition to provide
services obstructive.151
The imposition of unfair conditions leads the party of higher bargaining power in a position
to dictate terms to the weak party who is not in a position to dictate. 152 In the instant case
DOTD has not applied any condition on the sale of mango product. It has just instructed
Vijeta to pre-install ‘Genovian Generated’ software & applications to promote Genovian IT
& electronics industry. It does not cause any obstruction in the purchase or sale of goods &
services as consumers are free to choose as consumers are free to choose their product & can
use any application they want.
Hence pre-installation of some software & application & promotion of some suggested app
does not cause any loss or injury to the consumer. Therefore, condition imposed by DOTD is
not unfair & discriminatory.
4.2.2 DOTD has not denied market access
147
Competition Act 2002, §4(2)(a).
148
MCX Stock Exchange Ltd. v NSE India Ltd., Case No. 13/2009, ¶ 10.71 (CCI).
149
Ibid.
150
H. M. M Limited v Director General, Monopolies & Restrictive Trade Practices
Commission, (1998) 6 SCC 485.
151
R v Re A Loyalty Bonus Scheme, (2001) ECC 19.
152
Sunil Bansal v M/s Jaiprakash Associates Ltd. & others, 2015 Comp LR 1009 (CCI).

P a g e | 27
There shall be abuse of dominant position under if an enterprise or a group, indulges in
practice or practices resulting in denial of market access in any manner. 153 Denial of
market access is any conduct by which a dominant enterprise forecloses the market or defers
entry of new players in the market & falls afoul of the provisions of the Act. 154 DOTD has not
denied the Market access to other app developers. Pre-installation of certain Genovian apps in
Mango products did not provide sufficient ground for the foreclosure of market. 155 The other
app developers are just concerned that they might lose their customers but there is no surety
in it. Also, customers are free to choose whichever application they wanted to use & have a
right to choose whether they wanted to use the suggested apps or not.
4.2.3 No Tying-off arrangements
It is humbly submitted that § 4(d) prohibits conclusion of contracts subject to acceptance by
other parties of supplementary obligations which, by their nature or according to commercial
usage have no connection with the subject of such contract.
Jefferson Parish Hospital v Hyde156, the Supreme Court of United States observed that
“tying” arrangements need only be condemned if they restrain competition on the merits by
forcing purchasers that would not otherwise be made. In the tying agreement two products
are basically physically integrated with each other.157
In the agreement it is not necessary that the products are of different relevant market, they
just have to be two separate products.158 In the present case there is no tying-up agreement
between DOTD & Vijeta, DOTD just have instructed Vijeta to pre-install some Genovian
153
Competition Act 2002, § 4(2)(c).
154
Sh. Dhanraj Pillay & others v M/S Hockey India, Case No. 73 of 2011.
155
Neeraj Malhotra, Advocate v North Delhi Power Ltd, BSES Rajdhani Power Ltd. & BSES
Yamuna Power Ltd., Case No 06/2009.
156
Jefferson Parish Hospital v Hyde, 466 U.S. 2 [984].
157
T-201/104, Microsoft Copy v Commission, [2007] ECR II-3601.
158
Ibid.

P a g e | 28
applications for the sake to promote Genovian IT industry. There were no two separate
products present. The applications pre-install in the Mango product are the part of the product
not a separate product itself. Also, there were no obligations on the part of consumers to use
these applications or to install it. Hence it is humbly submitted that there is no tying
agreement between DOTD & Vijeta.
PRAYER FOR RELIEF
WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED &
AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON’BLE
COMMISSION MAY BE PLEASED TO DECLARE THAT:
a. Vijeta has contravened § 3(4) read with § 3(1) of the Act.
b. Vijeta has contravened the provisions under § 4(2) of the Act.
c. DOTD has contravened § 4(2) of the Act.
& PASS ANY OTHER ORDER DIRECTION OR RELIEF THAT THIS HON’BLE
COMMISSION MAY DEEM FIT IN THE LIGHT OF EQUITY, JUSTICE, FAIRNESS &
GOOD CONSCIENCE.
FOR THIS ACT OR KINDNESS, THE COUNSEL FOR THE PETITIONERS AS IN
DUTY BOUND SHALL FOREVER PRAY.

P a g e | 29
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TEAM CODE: 025

BEFORE THE COMPETITION COMMISSION OF GENOVIA

[Information filed under Section 19(1)(a) of the Competition Act, 2002]

Case No. 1 of 2021

NIKITA IYER …….PETITIONER

VIJETA TECH INSTRUMENTS LIMITED (VIJETA) .......RESPONDENT 1

DEPARTMENT OF TECHNOLOGICAL DEVELOPMENT …....RESPONDENT 2

MEMORIAL ON BEHALF OF THE RESPONDENT

1. WHETHER VIJETA HAS CONTRAVENED SECTION 3(4) READ WITH SECTION

1.1. VIJETA ENTERED INTO AGREEMENTS UNDER § 3 OF THE ACT..............1

1.2. AGREEMENTS HAVE AAEC IN THE MARKET...............................................7

2. WHETHER VIJETA HAS CONTRAVENED THE PROVISIONS UNDER SECTION

2.1 VIJETA ENJOYS A DOMINANT POSITION IN THE RELEVANT MARKET

2.2 VIJETA HAS ABUSED ITS DOMINANT POSITION.......................................10

3. WHETHER DOTD HAS CONTRAVENED THE PROVISIONS UNDER SECTION

3.1 DOTD IS AN ENTERPRISE UNDER §2(h) OF THE ACT................................20

3.2 DOTD IS IN A DOMINANT POSITION IN THE RELEVANT MARKET.......20

3.3 THE ACTIONS OF DOTD AMOUNT TO ABUSE OF DOMINANCE.............23

PRAYER FOR RELIEF...........................................................................................................27

MEMORIAL ON BEHALF OF THE RESPONDENT

AAEC Appreciable Adverse Effect on Competition

Act Competition Act, 2002

CCG Competition Commission of Genovia

DOTD Department of Technological Development

RPM Resale Price Maintenance

TFEU Treaty on the Functioning of the European Union

Vijeta Vijeta Tech Instrument Limited

MEMORIAL ON BEHALF OF THE RESPONDENT

1. Competition Act, 2002

2. Sherman Act, 1890

3. Clayton Act, 1914

2. BBI/Boosey & Hawkes: Interim Measures.

SCC OnLine CCI 17.........................................................................................................9, 12

Ashish Ahuja v SanDisk Corporation & others, Case No. 17 of 2014....................................19

India Pvt Ltd, 2012 Comp LR 827 (CCI)...................................................................1, 12, 13

MEMORIAL ON BEHALF OF THE RESPONDENT

Direct TV Pvt. Ltd., Case No. 2/2009.....................................................................................6

FICCI – Multiplex Association of India v United Producers/Distributors Forum, 2011 Comp

Comp LR 253 (CCI)...............................................................................................................6

H. M. M Limited v Director General, Monopolies & Restrictive Trade Practices Commission,

(1998) 6 SCC 485.................................................................................................................30

Comp LR 876 (CCI).............................................................................................................21

In Re Dreams Aakruti & Dreams Group, [2015] CCI 126......................................................12

[2015] CCI 43.........................................................................................................................9

Magnus Graphics v Nilpeter India Pvt Ltd., 2015 Comp LR 93 (CCI).....................................9

MEMORIAL ON BEHALF OF THE RESPONDENT

Yamuna Power Ltd., Case No 06/2009................................................................................31

Prints India v. Springer India Pvt. Ltd., Case 16/2010, ¶9 (CCI)............................................26

Secretary to the Government of Karnataka E-governance (DPAR-AR), the Secretary,

Kannada Ganaka Parishad, Case No. 08 of 2017 [CCI].......................................................3

Re C Shanmugam & Reliance Jio Infocomm Ltd., Case No 98 of 2016 [CCI].......................17

[CCI], (28 June 2016)...........................................................................................................11

Re Vishwambhar M Doiphode & Vodafone India Ltd., Case No 04 of 2016 [CCI]................16

RRTA v MICO, RTP Enquiry No. 3/1976, (7 December 1978)...........................................7, 14

MEMORIAL ON BEHALF OF THE RESPONDENT

Telco v RRTA, (1977) 2 SCC 55................................................................................................7

XYZ v Indian Oil Corp Ltd., Case 5/2018, (4 July 2018)...................................................16, 27