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Law of Competition - Case Laws
Showing 321 to 340 of 341 Records
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2011 (9) TMI 840
Writ petition - petition claimed payment of the monies spent by him in television show "Kaun Banega Crorepati-2 (KBC)" - petitioner had spent large sums of monies in his attempt to participate in the said show but had not been able to - organizers of the show were duping the participants of crores of rupees and indulging in foul play – Held that:- CCI (Competition Commission of India) dismissed complaint holding that allegations of petitioner were to be tested in light of opposite party being in a dominant position and, thus, discriminating in selection of contestants for participation in programme/show and adopting unfair means therein; however, on basis of viewership ratings, it was found that share of viewers of said television show was not so much for which it could be said that show was in a dominating position - therefore, petition against impugned order was to be dismissed
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2011 (8) TMI 1073
Whether a party before the District Consumer Forum/State Commission cannot be compelled to engage services of an advocate?
Whether a person under the purported cover of being an “agent” can represent large number of persons before the forums created under the Consumer Protection Act, 1986 (In short the ‘Act’) and the Rules made thereunder?
Whether somebody who is not a legal practitioner, can represent large number of parties before their forums thereby frustrating objects embodied in the Advocates Act?
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2011 (6) TMI 1043
Issues Involved:
1. Relevant Market Definition
2. Dominant Position of NSE
3. Abuse of Dominant Position by NSE
4. Leveraging Dominance
5. Exclusionary Conduct
Issue-wise Detailed Analysis:
1. Relevant Market Definition:
The Commission determined the relevant market as the stock exchange services for the currency derivatives (CD) segment in India. It was established that the CD segment is distinct from other segments like equity, F&O, and WDM, as well as from the OTC market. The CD segment was introduced as a new and distinct market by policymakers, and the services provided in this segment are functionally and statutorily segregated from other stock exchange services. The Commission rejected the applicability of the SSNIP test due to the lack of historical price data and the unique nature of the CD segment.
2. Dominant Position of NSE:
The Commission found NSE to be in a dominant position in the relevant market, defined as the stock exchange services for the CD segment in India. This conclusion was based on NSE's significant market share in various segments, its financial strength, extensive network, and vertical integration. NSE's ability to sustain a zero pricing policy and its substantial financial resources compared to competitors like MCX-SX and USE further reinforced its dominant position.
3. Abuse of Dominant Position by NSE:
The Commission identified several abusive practices by NSE, including the waiver of transaction fees, admission fees, and data feed fees, as well as the denial of APIC to ODIN software. These practices were deemed unfair and exclusionary, aimed at eliminating competition and harming competitors like MCX-SX. The zero pricing policy was considered annihilating or destructive pricing, contravening section 4(2)(a)(ii) of the Competition Act.
4. Leveraging Dominance:
NSE was found to have leveraged its dominant position in the non-CD segment to protect its position in the CD segment, violating section 4(2)(e) of the Act. The Commission concluded that NSE used its strengths from other segments to unfairly maintain its dominance in the CD segment, which was evident from its cross-subsidization practices and exclusionary conduct.
5. Exclusionary Conduct:
The Commission determined that NSE's conduct in denying APIC to ODIN and placing FTIL on a watch list was exclusionary, affecting both the aftermarket for trading software and the main relevant market. This conduct was aimed at foreclosing competition and imposing supplementary obligations on clients, contravening sections 4(2)(b)(i) and (ii), 4(2)(c), and 4(2)(d) of the Act.
Conclusion:
The Commission ordered NSE to cease and desist from unfair pricing and exclusionary conduct, maintain separate accounts for each segment, and modify its zero price policy. A penalty of Rs. 55.5 crores was imposed on NSE for its contraventions, reflecting 5% of its average turnover over the last three years. The decision emphasized the need for fair competition and the protection of consumer interests in the stock exchange services market.
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2011 (5) TMI 1161
1. ISSUES PRESENTED and CONSIDERED The legal judgment primarily revolves around the following core legal questions: - Whether the selection process for the post of Deputy Director (Law) in the Competition Commission of India (CCI) was conducted in accordance with the established legal framework and instructions issued to candidates.
- Whether the criteria for selection, specifically the introduction of a minimum aggregate mark requirement during the selection process, was arbitrary or irrational.
- Whether the petitioners, by virtue of qualifying for the interview stage, were entitled to appointment based on their category-specific ranking.
- Whether the principles laid down in previous judgments regarding changes in selection criteria during an ongoing process apply to the present case.
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Compliance with Legal Framework and Instructions - Relevant Legal Framework and Precedents: The selection process was governed by written instructions issued to candidates, which specified the weightage of written tests and interviews, and the eligibility criteria for different categories.
- Court's Interpretation and Reasoning: The court noted that the written instructions were indeed issued and formed part of the selection process. However, it emphasized that these instructions did not guarantee appointment but merely eligibility for further consideration.
- Key Evidence and Findings: The instructions required candidates to secure a minimum percentage in the written test to qualify for interviews, with different thresholds for reserved categories.
- Application of Law to Facts: The court found that the instructions were uniformly applied and did not guarantee appointment upon meeting the minimum criteria.
- Treatment of Competing Arguments: The petitioners argued that the written instructions should be the sole criteria for selection, but the court held that the instructions did not preclude the setting of additional standards.
- Conclusions: The court concluded that the instructions were followed, but they did not entitle candidates to automatic appointment.
Issue 2: Introduction of Minimum Aggregate Marks Requirement - Relevant Legal Framework and Precedents: The court considered previous judgments that prohibited changes in selection criteria after the process had commenced.
- Court's Interpretation and Reasoning: The court distinguished the present case from those precedents, noting that the introduction of minimum marks did not disqualify any candidate who was otherwise eligible.
- Key Evidence and Findings: The CCI introduced a requirement for a minimum aggregate of 65% marks for reserved categories, which was challenged as arbitrary.
- Application of Law to Facts: The court found that the criteria were uniformly applied and did not constitute a new disqualification.
- Treatment of Competing Arguments: The petitioners relied on precedents that prohibited post hoc changes to selection criteria, but the court found these inapplicable as no candidates were disqualified by the new criteria.
- Conclusions: The court upheld the introduction of the minimum aggregate marks, finding it a permissible standard-setting measure.
Issue 3: Entitlement to Appointment - Relevant Legal Framework and Precedents: The court referenced legal principles that there is no inherent right to appointment upon meeting eligibility criteria.
- Court's Interpretation and Reasoning: The court reiterated that fulfilling minimum qualifications did not entitle candidates to appointment, especially when additional standards were uniformly applied.
- Key Evidence and Findings: The petitioners argued that they should be appointed based on their ranking within their categories.
- Application of Law to Facts: The court found no legal basis for the claim that eligibility for an interview equated to a right to appointment.
- Treatment of Competing Arguments: The court dismissed the petitioners' arguments, emphasizing the discretionary nature of appointments.
- Conclusions: The court concluded that the petitioners had no entitlement to appointment based solely on their interview eligibility.
3. SIGNIFICANT HOLDINGS - Preserve Verbatim Quotes of Crucial Legal Reasoning: "There is no right to appointment." The court emphasized that eligibility for an interview does not equate to a right to appointment.
- Core Principles Established: The court upheld the discretionary power of the appointing authority to set standards for selection, provided they are uniformly applied and do not introduce disqualifications post hoc.
- Final Determinations on Each Issue: The court dismissed the writ petitions, finding no merit in the arguments presented by the petitioners. It held that the selection process was conducted in accordance with the legal framework and that the introduction of minimum aggregate marks was a permissible exercise of discretion by the CCI.
The judgment underscores the principle that meeting minimum eligibility criteria does not guarantee appointment, and appointing authorities have the discretion to set additional standards, provided they are applied uniformly and do not constitute arbitrary disqualifications.
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2011 (5) TMI 1160
1. ISSUES PRESENTED and CONSIDERED The core legal questions considered by the Delhi High Court in this judgment include: - Whether the Competition Commission of India (CCI) correctly denied SAIL's request for cross-examination of witnesses and access to certain documents during the investigation process. - Whether the CCI's decision to maintain confidentiality of certain information provided by JSPL was justified under the Competition Act, 2002 and the Competition Commission of India (General) Regulations, 2009. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Cross-examination and Access to Documents Relevant Legal Framework and Precedents: The legal framework involves the principles of natural justice and procedural fairness under the Competition Act, 2002, particularly concerning the rights of parties to access evidence and cross-examine witnesses. Precedents cited include decisions from the Supreme Court emphasizing the need for fairness in administrative proceedings. Court's Interpretation and Reasoning: The court interpreted that the certificate in question was provided by chartered accountants to JSPL, not to the CCI, and no witness had been examined to prove the certificate. Therefore, the right to cross-examine did not arise. The court highlighted that SAIL could challenge the certificate by submitting affidavits or other evidence in rebuttal. Key Evidence and Findings: The court found that the CCI had provided SAIL with an opportunity to present evidence in rebuttal, which aligned with principles of natural justice. Application of Law to Facts: The court applied the principles of procedural fairness and found that the CCI's decision was consistent with these principles, as SAIL was given an opportunity to contest the evidence through other means. Treatment of Competing Arguments: The court considered SAIL's argument for cross-examination and access to documents but found it unconvincing given the nature of the evidence (a certificate) and the procedural context. Conclusions: The court concluded that the CCI's denial of cross-examination and access to certain documents was justified and did not violate principles of natural justice. Issue 2: Confidentiality of Information Relevant Legal Framework and Precedents: The confidentiality provisions under the Competition Act, 2002, and the CCI Regulations 2009, particularly Regulation 35 and Section 57, were relevant. These provisions allow for the protection of commercially sensitive information. Court's Interpretation and Reasoning: The court reasoned that the CCI had the discretion to determine the confidentiality of information based on the justification provided by JSPL. The court emphasized that the CCI must be satisfied with the reasons for confidentiality. Key Evidence and Findings: The court noted the reasons provided by JSPL for maintaining confidentiality, including the potential adverse impact on its business and competitive position. Application of Law to Facts: The court applied the legal standards for confidentiality and found that the CCI's decision was within its discretion and supported by the reasons provided by JSPL. Treatment of Competing Arguments: The court considered SAIL's challenge to the confidentiality determination but found that the CCI had appropriately exercised its discretion. Conclusions: The court concluded that the CCI's decision to maintain confidentiality of certain information was justified and did not warrant interference. 3. SIGNIFICANT HOLDINGS Preserve verbatim quotes of crucial legal reasoning: "The impugned order of the CCI on the issue of cross-examination of witnesses by SAIL does not call for interference. Indeed, the certificate was given by the chartered accountants to JSPL and not to the CCI. No witness as such has been examined to 'prove' the certificate." Core principles established: The judgment reinforces the principle that procedural fairness does not necessarily require cross-examination in all circumstances, particularly when no witness has been formally examined. It also upholds the CCI's discretion in maintaining confidentiality of commercially sensitive information when justified. Final determinations on each issue: The court dismissed the writ petition, upholding the CCI's decisions on both the denial of cross-examination and the confidentiality of information provided by JSPL. The court found no violation of natural justice or procedural fairness in the CCI's actions.
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2011 (5) TMI 1124
Issues Involved:
1. Relevant market(s)
2. Dominant position of AICF
3. Abuse of dominant position by AICF
4. Anti-competitive agreement under Section 3(4) of the Act
Detailed Analysis:
Issue 1: Relevant Market(s)
The Commission delineated the relevant markets as:
(a) The 'market for organization of professional chess tournaments/events in India'
(b) The 'market for services of chess players in India'
The Commission noted that chess, due to its unique characteristics, cannot be substituted by other sports or entertainment forms. Thus, the relevant product market for assessing restrictions on chess event organizers is the "market for organization of professional chess tournaments/events." For restrictions on chess players, the relevant product market is the "market for services of chess players."
Issue 2: Dominant Position of AICF
The Commission found that AICF enjoys a dominant position in both relevant markets due to its regulatory powers as the sole national chess federation affiliated with FIDE and its NSF status granted by MYAS. AICF's control over the selection of players for international tournaments and the organization of national and international chess events in India underscores its dominant position.
Issue 3: Abuse of Dominant Position by AICF
The Commission identified several abusive practices by AICF:
(i) Restriction on Chess Players and Organization of Chess Tournaments:
AICF imposed restrictions on chess players from participating in tournaments not authorized by it, leading to disciplinary actions including bans and removal of ELO ratings. This conduct was found to limit the services of players and restrict market access for other organizers like CAI, violating Sections 4(2)(b)(i) and 4(2)(c) of the Act.
(ii) Sharing of Non-refundable EMD and Entry Fee:
While the DG found this practice to be anti-competitive, the Commission concluded that sharing of EMD and entry fees was not unfair or in contravention of the Act, as the funds were used for various expenses related to chess promotion.
(iii) Special/Donor Entries and Non-implementation of LTDP:
The Commission accepted AICF's justification that special/donor entries help discover hidden talents and are internationally accepted practices. Thus, this practice was not found to be abusive under Section 4 of the Act.
Issue 4: Anti-competitive Agreement under Section 3(4) of the Act
The Commission found that the undertaking prescribed by AICF, which restricts players from participating in unauthorized events, amounts to exclusive distribution and refusal to deal under Sections 3(4)(c) and 3(4)(d) read with Section 3(1) of the Act. This conduct creates entry barriers, forecloses competition, and restricts opportunities for chess players, causing an appreciable adverse effect on competition.
Order:
The Commission ordered AICF to:
(a) Cease and desist from the abusive conduct.
(b) Lay down fair, transparent, and equitable parameters for authorizing chess tournaments.
(c) Ensure disciplinary actions against players are proportional, fair, and transparent.
(d) Review the disciplinary actions against the Informants and other similar players.
AICF was directed to comply with these orders within 60 days and submit a compliance report.
Penalty:
The Commission imposed a penalty of INR 6,92,350/- on AICF, calculated at 2% of the average relevant turnover for the financial years 2014-15, 2015-16, and 2016-17. The penalty was to be deposited within 60 days of the order.
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2011 (5) TMI 1067
Issues Involved:
1. Jurisdiction of the Competition Commission of India (CCI).
2. Alleged anti-competitive agreements under Section 3 of the Competition Act.
3. Definition of the relevant market.
4. Dominance of the Distribution Companies (DISCOMs) in the relevant market.
5. Alleged abuse of dominance under Section 4 of the Competition Act.
Detailed Analysis:
Issue 1: Jurisdiction of the CCI
The CCI sought the views of the Delhi Electricity Regulatory Commission (DERC), which stated that while matters relating to electricity tariffs fall under the DERC, issues of abuse of dominance by DISCOMs could be examined by the CCI. The Commission clarified that its mandate is to eliminate practices having adverse effects on competition, promote competition, protect consumer interests, and ensure freedom of trade. The CCI and sectoral regulators have complementary roles. Therefore, the CCI has jurisdiction to examine the issues of abuse of dominance by DISCOMs.
Issue 2: Alleged Anti-Competitive Agreements
The informant alleged that DISCOMs had entered into anti-competitive agreements causing an appreciable adverse effect on competition. However, the DG found no evidence to support these allegations. The informant did not provide any material to substantiate the claims, and no evidence was found during the investigation to establish contravention of Section 3 of the Act. Therefore, the CCI concluded that there was no violation of Section 3.
Issue 3: Definition of the Relevant Market
The DG defined the relevant market as the distribution and supply of electricity and allied facilities like metering and billing in the respective areas of the three DISCOMs. The DISCOMs contended that the relevant market should be the supply of electricity to consumers in the licensed area of supply in Delhi. The CCI agreed with the DG's definition, noting that electricity is a specialized product with no substitutes, and the conditions for supply are distinctly homogeneous within the licensed areas. Therefore, the relevant market was defined as the distribution and supply of electricity in the licensed areas of the respective DISCOMs.
Issue 4: Dominance of the DISCOMs in the Relevant Market
The CCI found that each of the three DISCOMs had a dominant position in their respective areas of operation. The DISCOMs had the ability to operate independently of competitive forces due to their exclusive areas for distribution and supply of electricity. The CCI determined that the DISCOMs enjoyed a monopoly in their respective areas, and thus, held a dominant position in the relevant market.
Issue 5: Alleged Abuse of Dominance
The informant alleged that DISCOMs were abusing their dominant position by imposing unfair and discriminatory conditions in the purchase of goods (electricity meters) and services. The DG's investigation revealed that the DISCOMs restricted the supply of meters to those provided by them or their approved vendors, limiting consumer choice and creating entry barriers for other meter manufacturers. The DG also found that a significant percentage of meters tested showed positive errors, leading to inflated bills for consumers. However, the CCI noted that the sample size of meters tested was too small to be representative of all consumers. Despite this, the CCI concluded that the DISCOMs had imposed unfair conditions on consumers by restricting their choice of meters, which amounted to an abuse of dominance under Section 4(2)(a)(i) of the Act.
Supplementary Order:
A supplementary order by a member of the CCI highlighted the issue of consumer choice in the meter market, noting that the DISCOMs had restricted the market to their approved vendors, thereby denying market access to other manufacturers. The supplementary order found that the DISCOMs' practices amounted to an abuse of dominance by creating entry barriers and foreclosing competition in the meter market.
Final Decision:
The CCI concluded that the DISCOMs had abused their dominant position in the relevant markets of distribution and supply of electricity and meters by imposing unfair conditions on consumers and denying market access to other meter manufacturers. The CCI directed the DISCOMs to cease and desist from such practices, publish accurate information on their websites, and take steps to make consumers aware of their right to procure meters of their choice. The CCI also suggested that the sectoral regulator take necessary actions to address the issue.
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2011 (1) TMI 1599
1. ISSUES PRESENTED and CONSIDERED The core legal issues considered in this judgment are: - Whether the writ petition is maintainable given the availability of an alternative statutory remedy and the non-joinder of a necessary party, JICA.
- Whether the conditions in the bid documents regarding average annual production turnover and production experience are unreasonable, irrational, or illegal.
- Whether the conditions are intended to create a monopoly or are anti-competitive, thus violating the Competition Act, 2002.
- Whether the terms in the bid documents violate the petitioner's constitutional rights under Articles 14, 19, and 21 of the Constitution of India.
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Maintainability of the Writ Petition - Legal Framework: The writ petition's maintainability was challenged based on the availability of alternative remedies under the Competition Act, 2002, and the non-joinder of JICA, a necessary party.
- Court's Interpretation: The court held that the Competition Act provides a comprehensive mechanism for addressing anti-competitive practices and abuse of dominant position, making it the appropriate forum for such disputes.
- Conclusions: The writ petition is not maintainable due to the availability of an alternative remedy under the Competition Act and the non-joinder of JICA.
Issue 2: Reasonableness and Legality of Bid Conditions - Legal Framework: The court examined the bid conditions under the principles of administrative law, focusing on reasonableness, fairness, and the absence of arbitrariness.
- Court's Interpretation: The court found that the conditions were within the discretion of the tendering authority and were not arbitrary or discriminatory. The conditions were aimed at ensuring the capability and reliability of bidders.
- Conclusions: The bid conditions were reasonable and necessary to ensure the quality and timely execution of the project.
Issue 3: Anti-Competitive Nature of Bid Conditions - Legal Framework: Sections 3 and 4 of the Competition Act, 2002, which prohibit anti-competitive agreements and abuse of dominant position.
- Court's Interpretation: The court held that no agreement had been entered into that would trigger the application of Section 3. Additionally, GMDA was not in a dominant position in the relevant market.
- Conclusions: The bid conditions did not violate the Competition Act as there was no anti-competitive agreement or abuse of dominant position.
Issue 4: Violation of Constitutional Rights - Legal Framework: Articles 14, 19, and 21 of the Constitution of India, which guarantee equality, freedom to practice any profession, and the right to life.
- Court's Interpretation: The court found no violation of constitutional rights, as the bid conditions were not arbitrary or discriminatory and served a legitimate public interest.
- Conclusions: The petitioner's constitutional rights were not violated by the bid conditions.
3. SIGNIFICANT HOLDINGS - Verbatim Quotes: "The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract."
- Core Principles Established: The court reaffirmed the principle that the terms of a tender are within the discretion of the tendering authority and are not subject to judicial review unless they are arbitrary, discriminatory, or mala fide.
- Final Determinations: The writ petition was dismissed, and the interim order was vacated. The court upheld the bid conditions as reasonable and necessary for ensuring the quality and timely execution of the project.
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2011 (1) TMI 1197
Non-supply of documents forming part of the ADG’s investigation report
Held that:- It is directed that upon the documents being provided to the Petitioners on or before 7-1-2011, the Petitioners will be granted two weeks’ time thereafter to file their objections to the ADG’s Investigation Report. In other words, the objections will be filed on or before 21-1-2011. The CCI will reschedule the hearing fixed for 6-1-2011 to 14-2-2011 or any other date as soon thereafter as may be convenient to the CCI. In view of the need for the proceedings before the CCI to be concluded expeditiously, as mandated by the SAIL’s case (2010 (9) TMI 215 - SUPREME COURT OF INDIA), it is directed that the said time schedule should be strictly adhered to by the parties.
With the above directions the writ petitions are disposed of. The pending applications are also disposed of.
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2010 (10) TMI 81
Whether section 66(6) of the CA was meant to cover only such cases where the DG(I&R) took suo motu notice under section 11(2) of the MRTP Act and investigations were incomplete at the time of the CAA 2009?
Held that:- If any of the petitioners suffer any prejudice on account of the non-furnishing of any information to them by the CCI, they could well raise such a contention before the CCI which will then deal with such contention and pass orders thereon before proceeding to take any action in terms of section 43, read with section 45 of the CA. In any event, for any alleged violation of the procedure by the CCI it is not as if the petitioners would be without a remedy. Such a situation is taken care of within the four corners of the CA itself.
This Court finds no ground having been made out by the petitioners for interdicting the proceedings before the CCI. Appeal dismissed.
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2010 (9) TMI 1223
Issues Involved:
1. Infringement of registered trademarks.
2. Use of trademarks in Google AdWords.
3. Liability of search engines for trademark infringement.
4. Defenses based on generic or descriptive terms.
5. Validity of trademark registration.
6. Estoppel and unclean hands.
7. Jurisdiction of ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP).
8. Impleading Google Inc. as a party.
Detailed Analysis:
1. Infringement of Registered Trademarks:
The plaintiff, a company providing online matrimonial services, claimed that the defendants, who also offer similar services, were using adwords and texts in Google advertisements that were identical or deceptively similar to the plaintiff's registered trademarks. This, according to the plaintiff, amounted to trademark infringement.
2. Use of Trademarks in Google AdWords:
The defendants were using keywords identical to the plaintiff's trademarks in Google AdWords, causing their ads to appear alongside search results for the plaintiff's services. The court noted that while such use could be seen as in the course of trade and in advertising, it did not necessarily constitute infringement under Section 29(6) and (8) of the Trade Marks Act, 1999, unless it took unfair advantage or was contrary to honest practices.
3. Liability of Search Engines for Trademark Infringement:
Google argued that it merely provided a platform and did not use the trademarks in a commercial sense. The court acknowledged that the search engine's role was neutral and that Google's policy prohibited the use of trademarks in ad text but allowed their use in keywords. The court held that Google's inclusion of words in the keyword suggestion tool did not amount to contributory infringement unless it was done with knowledge of the trademark registration.
4. Defenses Based on Generic or Descriptive Terms:
The defendants argued that the trademarks consisted of generic or descriptive terms like "Tamil," "Matrimony," etc., which could not be monopolized. The court accepted that these terms were descriptive and essential for describing the services. The use of such terms in advertisements was considered necessary and did not constitute infringement as long as it was in accordance with honest practices.
5. Validity of Trademark Registration:
The defendants contended that the trademarks should not have been registered under Section 9(1)(b) of the Trade Marks Act, 1999, as they were descriptive. However, the court noted that the registration of a trademark is prima facie evidence of its validity under Sections 31 and 32 of the Act. The court held that the validity of the registration could not be challenged at this stage.
6. Estoppel and Unclean Hands:
The defendants claimed that the plaintiff was also using similar keywords in Google AdWords, and thus, could not seek an injunction. The court acknowledged this but did not base its decision solely on this ground, given that both parties were using descriptive terms.
7. Jurisdiction of ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP):
The defendants argued that the dispute should be resolved under ICANN's UDRP. The court rejected this, stating that the jurisdiction of the court was not ousted by the UDRP, and the plaintiff was entitled to seek relief from the court.
8. Impleading Google Inc. as a Party:
The plaintiff sought to implead Google Inc., USA, as a defendant, arguing that it was the parent company and responsible for the policies of Google India. The court allowed this, noting that Google Inc. was a proper party to the suit.
Conclusion:
The court dismissed the applications for interim injunctions, holding that the plaintiff failed to establish a prima facie case of infringement. However, it directed Google to adhere to its AdWords Trademark Policy and allowed the impleadment of Google Inc. The court emphasized that the main suit should proceed uninfluenced by the interim findings.
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2010 (9) TMI 215
Duties, powers and functions of commission, Appellate Tribunal, Legal representation
Whether the directions passed by the Commission in exercise of its powers under section 26(1) of the Act forming a prima facie opinion would be appealable in terms of section 53(A) of the Act?
What is the ambit and scope of power vested with the Commission under section 26(1) of the Act and whether the parties, including the informant or the affected party, are entitled to notice or hearing, as a matter of right, at the preliminary stage of formulating an opinion as to the existence of the prima facie case?
Whether the Commission would be a necessary, or at least a proper party in the proceedings before the Tribunal in an appeal preferred by any party?
At what stage and in what manner the Commission can exercise powers vested in it under section 33 of the Act to pass temporary restraint orders?
Whether it is obligatory for the Commission to record reasons for formation of a prima facie opinion in terms of section 26(1) of the Act?
What directions, if any, need to be issued by the Court to ensure proper compliance in regard to procedural requirements while keeping in mind the scheme of the Act and the legislative intent? Also to ensure that the procedural intricacies do not hamper in achieving the object of the Act, i.e., free market and competition?
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2010 (8) TMI 176
Whether the Competition Commission established under the Competition Act, 2002 does not have any jurisdiction to initiate any such proceedings in respect of films for which the provisions of the Copyright Act, 1957 contain exhaustive provisions?
Held that:- In the facts of the instant case, it cannot be said that requiring the petitioners to appear before the Competition Commission will subject the petitioners to lengthy proceedings and unnecessary harassment. Sections 8 and 9 of the Competition Act provides that the Commission shall consist of a Chairperson and two to six Members having special knowledge of, and professional experience of at least fifteen years in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs or competition matters, including competition law and policy. The Chairperson and Members of the Commission are to be appointed by the Central Government from a panel of persons recommended by a Selection Committee headed by the Chief Justice of India or his nominee.
We are inclined to dismiss the petitions only on the ground that the petitions challenge show-cause notices and that it is open to the petitioners to raise all available contentions, including preliminary objection against legality or otherwise of initiation of the proceedings against the petitioners
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2010 (3) TMI 1159
Petition challenges the Notices issued by the Competition Commission under the Competition Act, 2002 in respect of an alliance between the petitioners and Jet Airways (India) Ltd - retrospective effect on alliance between the parties - objective to rationalise the rates and provide improved standard of service of wider choice to the customers - M.R.T.P. Commission had taken cognizance of the agreement - Competition Act, 2002 repealing the M.R.T.P. Act came into effect on 20th May, 2009 - However, the operation of Section 66 was kept in abeyance for two years, as a result of which, M.R.T.P. Commission could continue to exercise the jurisdiction till the expiry of two years from 20th May, 2009 - According to the petitioners, the M.R.T.P. Commission is already seized of the matter in enquiry and therefore, the cognizance taken by the Competitive Commission was one without jurisdiction - establishment of relevant market is an essential condition before any exercise can be undertaken by the Commission.
HELD THAT:- It is clear that though the transaction and agreement may be prior to coming into force of the Act, it stands covered by the Act on the date the Act came into operation. The decision in Rajgopal's 1995 (1) TMI 67 - SUPREME COURT] case applies on all fours to the instant case. We are, therefore, of considered opinion that though the Competition Act is not retrospective, it would cover all the agreements covered by the Act though entered into prior to the commencement of the Act and sought to be acted upon.
Whether the Competition Act could be said to be penal in nature - It was submitted on behalf of the petitioner that Section 43 of the Act prescribes punishment and therefore, it should be treated as a penal Act. We do not think that the Act, strictly speaking, is a penal Act. This is because the Act does not make punishable by itself an act of entering into an agreement, contrary to the provisions of the Act. Therefore, even if parties enter into an agreement covered by the Act, that by itself, does not amount to an offence. What is made punishable is disobedience of the order passed by the Commission and noncompliance.
Strictly speaking, no criminal liability ensues for breach of Section 3 or 4 of the Competition Act. It seems to us that the penalty is provided only with a view to ensure or enforce compliance of the directions of the Commission, as can be seen from Section 27(1) of the Competition Act. Such a direction can be issued by the Commission only after enquiry. Necessarily, therefore, unless and until any enquiry is held and pursuant to that certain directions as envisaged by Section 2(a) to (g) are issued, there would be no question of anybody committing any offence. At the cost of repetition, it may be said that breach of Sections 3 and 4 by itself is not an offence.
The agreement was valid when entered into. It was not an offence at that time nor is it an offence even today or even on the date of the coming into force of the Act. As pointed out earlier, entering into agreement contrary to the Act by itself is not an offence. The petitioners are not sought to be convicted or even tried for an act of entering into an alliance. The proceedings or the action of the Commission is at the preliminary stage only. It only seeks to look into and enquire into/investigate into the terms of the alliance. If Article 20 is to be applied, there has to be trial or prosecution for the act done prior to the coming into force of the Act. There is nothing like that.
There is no doubt that the M.R.T.P. Commission had received a complaint under that Act. The said complaint No.172 of 2008 was looked into by the M.R.T.P. Commission. It is clear that the M.R.T.P. Commission had found that since the alliance had not come into effect, the mere apprehension cannot be taken into consideration and had, therefore, left the matter open for the Director General to take up the investigation if any development occurs. It is apparent that the Commission has not decided any issue at all nor has it ordered any investigation.
We, therefore, find that no action whatsoever has been taken by the M.R.T.P. Commission. There could therefore be no impediment in taking any action under the new Act. Even otherwise, the provisions of the M.R.T.P. Act and the Competition Act are not identical. Since no action whatsoever is taken or proposed to be taken by the M.R.T.P. Commission, there could be no question of the petitioners being subjected to double jeopardy. Further, the M.R.T.P. Commission now stands abolished w.e.f. 14th October, 2009. There is, therefore, no question of M.R.T.P. Commission now taking any action against the petitioners. This ground of challenge has no substance at all.
The submission that unless and until the Commission first determines the relevant market, the relevant geographic market, it cannot take any action u/s 4 of the Competition Act. There is no doubt that for coming at a conclusion as to whether a particular group has abused the dominant position or not, three things, namely; relevant market, relevant geographic market and relevant products are to be considered. However, for considering the effect of Section 4, it would also be necessary to look into the various other provisions of the Act.
It is clear from Section 19 that the Commission can act upon receipt of information and on a reference made to it by the Central or State Government or on its own motion. It is, therefore, clear that there has to be some information before the Commission about the alleged breaches of Sections 3 and 4. If the Commission receives an information, it is supposed under Section 19 to enquire into the complaint received. Under the Code of Criminal Procedure, a Police Officer is supposed to look into the complaint and decide whether the information discloses a cognizable offence or not. If, upon reading the complaint, he finds that it does disclose a cognizable offence, he is bound to register the First Information Report and investigate into it.
The law is well settled that the court should not stifle the investigation at all, except for compelling reason or when F.I.R. does not disclose any offence at all. If the analogy is to be applied here it cannot be said that the information given by respondent no.3 does not disclose any beach nor can it be said that it is a case of lack of inherent jurisdiction to the Commission to investigate. It has a power to enquire and investigate into every complaint received under the Act, as is clear from the above provision.
We find that it was not necessary for the Commission to first find out the relevant geographic market, relevant products market or relevant market. Such things can be found or concluded upon investigation and not necessarily before that.
Therefore, we find that no writ as sought can be issued and petition should be dismissed. We, therefore, dismiss the petition.
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2010 (3) TMI 678
Interpretation of section 12B of the Monopolies and Restrictive Trade Practices Act, 1969
Held that:- No doubt the respondents would have to defend legal proceedings in more than one forum, but then that is what has been specifically permitted by section 12B of the said Act and the principle of election of remedies cannot be imported to deny parallel proceedings it such parallel proceedings have been specifically permitted even if in the past the Commission has taken a view to the contrary. As per the clear mandate of section 12B(4) of the said Act, an application for compensation is maintainable even if a civil suit is pending and the application must proceed in accordance with law.
We thus set aside the impugned order dated 13-11-2000 and direct the Commission (now the succeeding authority being Competition Commission of India under the Competition Act, 2002) to proceed in accordance with law. The petition is accordingly allowed
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2009 (12) TMI 1040
Issues Involved:
1. Invocation of Section 9 of the Arbitration and Conciliation Act, 1996.
2. Existence and enforcement of the arbitration clause in the Joint Venture Agreement (JVA).
3. Compliance with pre-arbitration stages.
4. Distribution rights and non-compete clauses in various agreements.
5. Alleged breach of contractual obligations and fiduciary duties.
6. Interim injunction against the respondent from distributing Verorab.
7. Application of the Indian Partnership Act, 1932 and the Indian Contract Act, 1872.
8. Conduct of the parties and its impact on equitable relief.
9. Interpretation of commercial contracts.
10. Public interest and market competition considerations.
Detailed Analysis:
1. Invocation of Section 9 of the Arbitration and Conciliation Act, 1996:
The petitioner invoked Section 9 of the Arbitration and Conciliation Act, 1996, seeking an interim measure of protection by way of an interim injunction to restrain the respondent from distributing Verorab. The court considered the urgency and granted ad interim relief in terms of prayer (a) on 16.10.2009.
2. Existence and Enforcement of the Arbitration Clause in the JVA:
The JVA dated 22nd April 1998 contained an arbitration clause stipulating that any dispute arising out of or in connection with the agreement shall be resolved through arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, to be held in London, England.
3. Compliance with Pre-Arbitration Stages:
The court noted that the compliance with pre-arbitration stages could be examined at a later stage. The basic requirement of the existence of the arbitration agreement and the dispute between the parties arising out of the same was deemed sufficient to consider the petitioner's case for urgent relief.
4. Distribution Rights and Non-Compete Clauses in Various Agreements:
Several agreements were executed between the parties, including the JVA, Shareholders Agreement, Marketing and Distribution Agreements, and a Licence and Technical Collaboration Agreement. These agreements contained clauses related to distribution rights and non-compete obligations. The petitioner argued that the respondent's distribution of Verorab violated these clauses.
5. Alleged Breach of Contractual Obligations and Fiduciary Duties:
The petitioner alleged that the respondent's distribution of Verorab constituted a breach of the JVA and other related agreements, as well as a violation of fiduciary duties. The court emphasized the importance of trust, good faith, and cooperation in joint ventures and partnerships, and held that the respondent's actions were contrary to these principles.
6. Interim Injunction Against the Respondent from Distributing Verorab:
The court granted an interim injunction restraining the respondent from distributing Verorab, based on the prima facie case made out by the petitioner. The court held that the respondent's distribution of Verorab was a rival and competing business that affected the petitioner's business and created confusion in the market.
7. Application of the Indian Partnership Act, 1932 and the Indian Contract Act, 1872:
The court referred to various provisions of the Indian Partnership Act, 1932, including Sections 9, 11, 16, 17, 36, and 54, and Section 27 of the Indian Contract Act, 1872. The court held that partners are bound to carry on the business of the firm to the greatest common advantage and not to engage in competing business without express permission.
8. Conduct of the Parties and Its Impact on Equitable Relief:
The court considered the conduct of the parties while granting the injunction. The court held that the respondent's conduct of starting a rival business without express or implied consent from the petitioner and the company was not permissible and affected the business of the joint venture.
9. Interpretation of Commercial Contracts:
The court emphasized the need to interpret commercial contracts as a whole, considering the object and purpose of the agreements. The court held that the clauses related to distribution rights and non-compete obligations should be read in the context of the entire agreement and the relationship between the parties.
10. Public Interest and Market Competition Considerations:
The court rejected the respondent's argument that distributing Verorab was in the public interest due to a shortage of anti-rabies vaccines in the market. The court held that the dispute was a commercial transaction between the parties and did not involve public interest considerations.
Conclusion:
The court confirmed the interim injunction granted on 16.10.2009, restraining the respondent from distributing Verorab until the constitution of the Arbitral Tribunal and eight weeks thereafter. The court held that the petitioner had made out a prima facie case for the injunction and that the balance of convenience and equity tilted in favor of the petitioner. All points were kept open for further consideration by the Arbitral Tribunal.
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2005 (5) TMI 333
Issues Involved:
1. Maintainability of the Writ Petition as Public Interest Litigation (PIL)
2. Application of the Competition Act, 2002
3. Allegations of Mala Fides and Bias
4. Quia Timet Action
5. Non-production of Records
Detailed Analysis:
1. Maintainability of the Writ Petition as Public Interest Litigation (PIL):
The petitioner claimed to have the locus standi to file the PIL, citing violations of Articles 38 and 39-C of the Constitution of India and potential bias due to the involvement of a Union Minister related to the applicant. The petitioner argued that the application for a Direct To Home (DTH) Licence by the sixth respondent should be rejected due to these violations and potential undue influence.
The court examined whether the petitioner had made out a case for maintaining the writ petition as a PIL. It referred to several Supreme Court judgments, including Ashok Kumar Pandey v. State of West Bengal and Balco Employees' Union v. Union of India, to determine the parameters of PIL. The court concluded that none of the tests laid down by the Supreme Court for entertaining a PIL were satisfied in this case. The petitioner did not represent a disadvantaged group unable to protect their own interests, and no public injury was demonstrated. Therefore, the writ petition was deemed not maintainable as a PIL.
2. Application of the Competition Act, 2002:
The petitioner argued that granting the DTH Licence to the sixth respondent would violate the Competition Act, 2002. The court noted that the relevant provisions of the Competition Act, such as those dealing with anti-competitive agreements, come into play only after an agreement has been entered into. Since the application for the DTH Licence was still under consideration and no agreement had been entered into, the provisions of the Competition Act were not applicable at this stage.
3. Allegations of Mala Fides and Bias:
The petitioner alleged that the presence of the Union Minister for Communications and Information Technology, who is related to the sixth respondent, would vitiate the entire procedure of processing the application due to bias and mala fides. The court referred to several judgments, including C.S. Rowjee v. State of Andhra Pradesh and Indian Railway Construction Co. Ltd. v. Ajay Kumar, to explain how allegations of mala fides and bias should be dealt with.
The court observed that the allegations were vague and lacked specific details. Furthermore, the individuals against whom mala fides and bias were alleged were not made parties to the petition. The court concluded that the allegations of mala fides and bias could not be accepted.
4. Quia Timet Action:
The petitioner sought a quia timet action to prevent the potential harm that might arise if the DTH Licence was granted to the sixth respondent. The court explained that quia timet actions are preventive measures that require proof of imminent danger and substantial, irreparable harm. The court found that the petitioner had not demonstrated any imminent or irreparable harm that would justify a quia timet action. The court concluded that the petitioner was not entitled to this relief.
5. Non-production of Records:
The petitioner argued that the respondents' failure to produce the relevant records indicated that something was wrong. The court noted that the writ petition was for a mandamus and not for a certiorari, and the records had not been called for since the writ petition had not been admitted. The court did not draw any adverse inference from the non-production of records.
Conclusion:
The court dismissed the writ petition on the grounds of maintainability, lack of applicability of the Competition Act at the current stage, insufficient evidence of mala fides and bias, and failure to justify a quia timet action. The court also found no basis for drawing adverse inferences from the non-production of records. The writ petition was accordingly dismissed without any order as to costs.
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2005 (1) TMI 410
Composition of Commission - Held that:- If an expert body is to be created as submitted on behalf of the Union of India consistent with what is said to be the international practice, it might be appropriate for the respondents to consider the creation of two separate bodies, one with expertise that is advisory and regulatory and the other adjudicatory. This followed up by an appellate body as contemplated by the proposed amendment, can go a long way, in meeting the challenge sought to be raised in this Writ Petition based on the doctrine of separation of powers recognized by the Constitution. Any way, it is for those who are concerned with the process of amendment to consider that aspect. It cannot be gainsaid that the Commission as now contemplated, has a number of adjudicatory functions as well.
Thus, leaving open all questions regarding the validity of the enactment including the validity of rule 3 of the Rules to be decided after the amendment of the Act as held out is made or attempted, we close this Writ Petition declining to pronounce on the matters argued before us in a theoretical context and based only on general pleadings on the effect of the various provisions to support the challenge based on the doctrine of separation of powers
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1993 (4) TMI 306
Issues Involved:
1. Formation of Cartel
2. Reasonable Price Fixation
3. Dual Pricing
4. Allocation of Quotas
5. Legitimate Expectation
Summary:
1. Formation of Cartel:
The Supreme Court found that there was no sufficient material to conclusively determine that M/s. H.D.C., Mukand, and Bharatiya formed a cartel. However, the identical pricing quoted by these manufacturers gave rise to a suspicion of cartel formation. The authorities, including the Minister, acted in a bona fide manner in suspecting the formation of a cartel based on the identical pricing and post-tender behavior of these manufacturers.
2. Reasonable Price Fixation:
The High Court's direction that all suppliers should supply bogies at Rs. 67,000 was deemed unsustainable by the Supreme Court. The Tender Committee was directed to reconsider the reasonable price, taking into account the offers and data provided by M/s. H.D.C. and Mukand, and other relevant aspects. The Tender Committee should fix a reasonable price at which the manufacturers would be able to supply.
3. Dual Pricing:
The Supreme Court held that dual pricing may be reasonable under certain circumstances. The Railways' decision to adopt dual pricing was found to be bona fide and not mala fide. M/s H.D.C., Mukand, and Bharatiya were considered to form a distinct category capable of supplying at Rs. 67,000 per bogie, while smaller manufacturers belonged to a different category. A different price for smaller manufacturers was not discriminatory.
4. Allocation of Quotas:
The Supreme Court found that the reduction of quotas to the three big manufacturers by the Minister, based on the suspicion of cartel formation, was unjustified. The three big manufacturers should be allotted quantities as per the Tender Committee's recommendations. The allocations to smaller manufacturers need not be disturbed, and necessary adjustments could be made in the subsequent year. The Railways were allowed to exercise the 30% option if not already exercised.
5. Legitimate Expectation:
The Supreme Court acknowledged the concept of legitimate expectation, emphasizing that the Government must act fairly and not arbitrarily. The manufacturers had a legitimate expectation based on past practices and policies. However, the final decision must consider public interest and be reasonable. The Court found that the authorities acted within their rights and followed a rational policy aimed at preventing monopolistic tendencies and encouraging competition among manufacturers.
General Submissions on Tender System and Economic Policy:
The Supreme Court reiterated that the Government, in a welfare state, has wide powers in regulating and dispensing special services like contracts. The Government must act fairly and not arbitrarily, and its actions should be based on rational and reasonable grounds. The Court emphasized the importance of preventing monopolistic tendencies and ensuring healthy competition, aligning with the Directive Principles of State Policy and public interest.
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1972 (4) TMI 104
Issues Involved:
1. Proprietorship of the registered trade marks.
2. Infringement of the plaintiff's trade marks.
3. Passing off goods by the defendant as those of the plaintiff.
4. Reliefs entitled to the plaintiff.
Issue-wise Detailed Analysis:
1. Proprietorship of the Registered Trade Marks:
The court confirmed that the appellant (plaintiff) was the proprietor of the registered trade marks 12052 and 11426. This was based on certificates (Exhibits P.1 and P.2) issued under the Trade Marks Act, 1940, which showed that the trade marks were originally registered in the name of Janki Dass & Co. and later assigned to the appellant (plaintiff) on 12th July, 1955. This finding was not contested by the respondent.
2. Infringement of the Plaintiff's Trade Marks:
The court examined whether the use of "ROYAL STAR" by the respondent constituted an infringement of the appellant's registered trade mark "EASTERN STAR." It was noted that both marks ended in the same sound, "STAR," which could cause confusion among purchasers of average intelligence and imperfect memory. The court held that the names "EASTERN STAR" and "ROYAL STAR" had an overall structural and phonetic similarity, likely to cause deception or confusion within the meaning of section 29 of the Trade and Merchandise Marks Act, 1958.
Additionally, the court considered the evidence that the appellant's cycles were popularly referred to as "STAR" cycles. Witnesses from various places testified that customers referred to "EASTERN STAR" cycles as "STAR" cycles. The court preferred the statements of these witnesses over those of the respondent's witnesses, who claimed otherwise. The court concluded that the use of "ROYAL STAR" by the respondent was very likely to deceive or confuse purchasers, constituting an infringement of the appellant's registered trade mark No. 11426.
3. Passing Off Goods by the Defendant as Those of the Plaintiff:
Given the finding of infringement, the court did not find it necessary to delve deeply into the issue of passing off. However, it was noted that the appellant's cycles had acquired a reputation and were known as "STAR CYCLES," further supporting the likelihood of confusion caused by the respondent's use of "ROYAL STAR."
4. Reliefs Entitled to the Plaintiff:
The court granted a permanent injunction restraining the respondent from using the mark "ROYAL STAR" in relation to its cycles or cycle accessories. The respondent was also restrained from proceeding with its application No. 177777 in the Trade Marks Registry at Bombay. The appellant was awarded costs throughout from the respondent.
Conclusion:
The appeal was allowed, and the decree of the learned District Judge was set aside. The court decreed the suit by granting a permanent injunction against the respondent from using the mark "ROYAL STAR" and from proceeding with its trade mark application. The appellant was awarded costs.
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