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TMI Blog2024 (11) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... lost the first-mover advantage due to OPs product launch. Moreover, it is not demonstrated that having a first-mover advantage is crucial in this market. There does not seem to be any abuse of dominant position by the OPs in the delineated relevant market - the Commission is of the considered opinion that no prima facie case of contravention of the provisions of Section 4 of the Act is made out against the OPs in the present matter. Hence, the matter is directed to be closed in terms of the provisions contained in Section 26(2) of the Act. All pending applications stand disposed of accordingly. - Ms. Ravneet Kaur Chairperson, Mr. Anil Agrawal Member, Ms. Sweta Kakkad Member AND Mr. Deepak Anurag Member ORDER UNDER SECTION 26(2) OF THE COMPETITION ACT, 2002 1. The present Information has been filed by Shri Rajiv Rai Sachdev ( Informant ) under Section 19(1)(a) of the Competition Act, 2002 (the Act ) against Procter Gamble Hygiene and Health Care Limited ( OP-1 ) and The Procter Gamble Company, USA ( OP-2 ) (together the OPs ) alleging contravention of the provisions of Section 4(2)(c) of the Act. 2. The Informant is the promoter of a start-up company Advantage Nature, a unit of Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 02.08.2018, communicated to the Informant that they do not wish to pursue his submission currently, citing that Even such a large company as P G must make strategic decisions regarding which opportunities we pursue. Regardless of its merit, we may find that a submitted technology, product, package, or other innovation is not a fit for our current needs or strategies. Typically, we are not at liberty to provide detailed reasons for these decisions. 6. The Informant stated that post 2018, he went on to pursue his dream of using his patented technology at commercial level and kept approaching other market players in the field of textiles and hygiene products with functional herbal hygiene. One of such players Peter England , a brand of Aditya Birla Fashion and Retail Ltd., in 2020, launched its products treated with Enliven and duly acknowledged and tested the benefits of the Informant s green technology on its gamut of textile products. 7. As per the Informant, in October 2021, the Informant came across a new type of Sanitary Pads launched by the OPs namely Whisper ultra clean with the description New with Herbal Oil and Our No. 1 Hygienic Protection . The Informant alleged that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any other doubts about the efficacy of Informant s technology or patent as expressly mentioned in the pre-defined terms and conditions of the Connect + Develop program. 10. Further, the Informant submitted that in 2020, Aditya Birla Fashions and Retail Ltd. gave an official press release of Peter England Neem Tulsi Collection Apparel and Mask. As per the Informant, after going through Aditya Birla Fashion and Retail Limited and the Informant s promotional material, the OPs realised the true potential of the Informant s internationally patented green technology, which was already shared by the Informant with them in 2018 and accordingly, they launched their product Whisper ultra clean sanitary pads in a big way in 2021, after stealing the Informant s vision document with creative ideas brochure. This, as per the Informant, amounts to abuse of dominant position by the OPs in contravention of Section 4(2)(c) of the Act i.e. indulging in practices resulting in denial of market access to the Informant. The Informant submitted that using their dominant power, unethical aid and deceptive business practices, the OPs have ousted the Informant at the very inception, from bringing in the us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t suit against the OPs as the present case is distinct from normal patent infringement cases. 17. On the other hand, the OPs filed their comments on 12.06.2024 and 24.06.2024, stating, inter alia, as follows: 17.1 The Informant has not come before the Commission with clean hands and is indulging in forum shopping; 17.2 The Informant submitted its non-confidential information ostensibly protected by a patent for dyeing textiles with Neem and Holy Basil Extract to the OPs voluntarily. The OPs declined the Informant s proposal under binding terms and conditions which the Informant had accepted while making its submission. 17.3 The Informant s patent is a process patent and the OPs have not used or applied the Informant s patented process. In India, use of Neem and its properties etc. have been well known for thousands of years. 17.4 Sanitary napkins are not textiles and the process of the OPs to treat their sanitary napkins is quite different from the patented process of the Informant. The formulation used for treatment is also different than Neem and Holy Basil Extract used in the Informant s patented process. 17.5 The matter does not fall within the scope of Section 4 of the Act whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first edge to collaborate and bring into the market this technology despite being the inventor/ innovator of such technology with duly registered patents in his name. 22. For the purposes of examining the allegations of abuse of dominance under Section 4 of the Act, the Commission adopts the following three-pronged approach: (a) Defining a relevant market ; (b) Assess whether the OP is in a position of dominance in the delineated relevant market; and (c) Determine if the alleged conduct of the OP is abusive in nature. 23. In the present case, the Informant has raised issues concerning the product Sanitary Pad . A sanitary pad is a female hygiene product used during menstruation or in other situations where it is necessary to absorb blood flow. They are generally classified into two categories: disposable pads, which are designed for single use, and reusable cloth pads, which can be washed and reused. This distinction is significant as it reflects different physical characteristics of the products, consumer preferences and usage patterns. Additionally, other female hygiene products, such as tampons and menstrual cups, serve a similar purpose but differ in form and method of use. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted below, although the OPs seem to have a large market share in the delineated relevant market, they do not strictly emerge as a dominant player in the said market who would be able to operate independently of competitive forced prevailing in the relevant market or affect its competitors or consumers or the relevant market in its favour : Multinational conglomerate Johnson and Johnson brand Stayfree seems to be a close competitor equivalent to the OPs in the delineated relevant market having comparable economic resources. 29. As such, in the absence of dominant position of the OPs in the delineated relevant market, the allegations of abuse made against the OPs need not be examined by the Commission. 30. Be that as it may, based on the information available on record, the Commission is of the view that the alleged conduct cannot be considered as an abuse of dominant position by the OPs. The Informant has not provided any evidence indicating that the OPs used the Informant s information to develop and launch their products. Additionally, there is no evidence suggesting that the OPs prevented the Informant from introducing a similar product into the market. Furthermore, there is no r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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