INDIA Law and Practice Contributed by: Raj Ramachandran, Kartik Jain, Mannat Nirola and Anmol Mahajan, JSA Advocates & Solicitors
Section 3 prohibits agreements which cause or are likely to cause an AAEC in India, and such agree - ments are considered void. These include agreements between competitors (horizontal agreements), enter - prises at different levels of the production chain (verti - cal agreements) and other agreements that do not fall within either category but may nevertheless cause or are likely to cause an AAEC in India. Horizontal Agreements Section 3 (3) identifies four types of horizontal agree - ments (ie, agreements between competitors), also known as cartel agreements, namely: (a) price-fixing agreements; (b) agreements to limit or control pro - duction, supply or markets; (c) market-sharing agree - ments; and (d) bid-rigging agreements. Such agree - ments are presumed to cause an AAEC in India. This presumption extends to enterprises that facilitate car - tels or engage in hub-and-spoke cartels. Vertical and Other Agreements Section 3 (4), among other things, deals with verti - cal agreements and provides a non-exhaustive list of such agreements, including: (a) tie-in arrangements; (b) exclusive supply agreements; (c) exclusive dis - tribution agreements, including territorial allocation arrangements; (d) refusal to deal; and (e) resale price maintenance. These agreements are prohibited where they cause, or are likely to cause, an AAEC on com - petition in India. In addition to horizontal and vertical agreements, other forms of agreements may also be examined under Section 3 (4) where they cause, or are likely to cause, an AAEC in India. The regulatory framework grants the CCI explicit extraterritorial jurisdiction. This means that it has the power to investigate and penalise abuse of dominant position and anti-competitive agreements formed or operating outside of India, provided that they cause, Section 4 of the Competition Act prohibits an enter - prise or a group from abusing its dominant position. To determine whether an enterprise is dominant, the CCI considers various factors, including the enter - prise’s market share, size and resources, its economic power and the competitive conditions in the relevant or are likely to cause, an AAEC in India. 6.4 Abuse of Dominant Position
market. Market share is one of the important factors in this assessment. While a market share of 50% or more may indicate dominance, an enterprise with a lower market share may also be found to be domi- nant depending on the facts and circumstances of the case. Section 4 (2) lists certain practices that may amount to abuse of dominant position when carried out by a dominant enterprise or group. These include imposing unfair or discriminatory prices or conditions, limiting production or technical development, denying market access, leveraging dominance in one market to enter or protect another market, engaging in tie-in arrange - ments, and other exclusionary or exploitative conduct. The Supreme Court in Competition Commission of India v Schott Glass India Pvt . Ltd ., Civil Appeal No. 5843 of 2014, underscored the importance of an effects-based analysis in cases involving allega - tions of abuse of dominant position. The Court clari - fied that the conduct of a dominant enterprise should be assessed based on its actual or likely effects on competition and not merely on its form. The Court also recognised that objective and legitimate business justifications for the impugned conduct are relevant considerations in determining whether the conduct amounts to an abuse of dominance. Governed by the Patents Act, 1970, a patent is a statutory right granted for an invention that is novel, involves an inventive step and is capable of industrial application. Patent protection confers upon the pat - entee the exclusive right to prevent third parties from making, using, selling, offering for sale or importing the patented invention without authorisation. Patent rights are territorial and enforceable only within India. Patent protection is available for a term of 20 years from the filing date of the application, subject to pay - ment of prescribed renewal fees. Upon expiry, the invention enters the public domain. Certain subject matter is excluded from patentability under Sections 3 7. Intellectual Property 7.1 Patents Patent Protection
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