2024 (11) TMI 936 - CCI - Law of Competition

Contravention of Section 3(4) read with Section 3(1) of the Competition Act, 2002 - non-marketing of patented dietary supplement sold under the brand name Protestin due to the alleged non-cooperation of the Opposite Parties - prayer for free and fair marketing from all premises including specified areas (MNCs, private hospitals, West Bengal Fair Price Shop etc.) and others (non-specified premises) - HELD THAT - The Commission has perused certain emails sent by the Informant to several entities including some Opposite Parties and is of the view that these emails appear to have been sent for the purpose of soliciting business for his product and do not reveal existence of any agreement or arrangement as envisaged under the provisions of Section 3(4) of the Act. The Commission is of the considered view that in absence of any apparent anti-competitive conduct, the decision of purchase or sale of a product and quantity thereof is driven by the commercial considerations of the market players. Therefore, it may not be desirable for the Commission to intervene in such cases where anti-competitive behaviour is not discernible. The Commission observes that no such agreement has been shown to exist between the Opposite Parties that may be held to be anti-competitive in terms of the provisions of Section 3(4) of the Act. Accordingly, the Commission is of the view that there does not appear to be contravention of Section 3(4) read with Section 3(1) of the Act and the matter be closed under Section 26(2) of the Act forthwith. Consequently, no case for grant of reliefs as sought under Section 33 of the Act arises.

Summary

Issues: Alleged contravention of Section 3(4) read with Section 3(1) of the Competition Act, 2002 by various entities including hospitals, pharmaceutical companies, e-pharmacies, and government departments.

The judgment pertains to an Information filed by an Informant, a pharmacist holding a patent for an Oral Rehydration Powder Composition marketed as 'Protestin'. The Informant alleged non-cooperation from private hospitals, medical associations, online pharmacies, and other entities in promoting the product, leading to financial losses. The Informant sought reliefs under Section 33 of the Act, including compensation and permission for digital marketing. The Commission noted the Informant's grievances regarding non-marketing of the product and potential contravention of Section 3(4) read with Section 3(1) of the Act by the Opposite Parties.

The Commission examined the evidence provided by the Informant, including sales data of the product, and assessed the alleged anti-competitive behavior. It was observed that the emails sent by the Informant to various entities did not establish the existence of an anti-competitive agreement as required under Section 3(4) of the Act. The Commission emphasized that commercial considerations drove purchase decisions, and in the absence of anti-competitive conduct, intervention by the Commission may not be warranted. Consequently, the Commission concluded that no anti-competitive agreement was demonstrated among the Opposite Parties, leading to the decision to close the matter under Section 26(2) of the Act.

In light of the findings, the Commission determined that there was no contravention of Section 3(4) read with Section 3(1) of the Act. Therefore, the requested reliefs under Section 33 of the Act, including compensation and permission for promotional activities, were not granted. The Secretary was directed to communicate the decision to the Informant, bringing the matter to a close.