ISSUE 1

1. The CCF has erred in dismissing the allegations that Trickster has leveraged its
position in the sale of movie tickets to enter the market for online payments, and
that it has indulged in the tying of services by making the use of Rodeo mandatory
to avail ticketing services on its platform.

It is humbly submitted before the Competition Appellate Tribunal that firstly; Respondent has
abused its dominant position in the Relevant Market and secondly; it has leveraged its
dominant position by entering other relevant market.

1.1. Respondent Has Abused Its Dominant Position in The Relevant Market

In order to assess the abuse of dominant position by an enterprise, the Relevant Market
should be determined, then it has to be determined that weather enterprise enjoys a dominant
position in the relevant market and only if enterprise has dominance, it can abuse its
dominant position.1 It is consequentially submitted that Firstly, the Relevant Market to be of
‘Movie Ticket Booking’, secondly, the Respondent occupied position of dominance in
‘Movie Ticket Booking’ market and thirdly, unfair condition in purchase and sale of services
was imposed by the Respondent and was involved in technical tying of services.

1.1. 1. ‘Movie ticket booking’ as the Relevant Product Market

1. The Relevant Market is the area of effective competition. 2 The purpose to define
market is to identify the competitive constraints that the undertakings involved face,
in a systematic manner.3 In United States v El Du Pont De Nemours & Co., 4 the
Court observed that, to determine ‘Relevant Market’ following factors are required to
be taken into consideration:

 How different is the commodity offered from the other commodity in

character or its use.
 What are the market alternatives that buyers may readily use for that purpose.
 How far the buyers will go for the substitution of a commodity.

1
S M DUGAR, GUIDE TO THE COMPETITON ACT 2002 487 (LexisNexis 2020).
2
Standard Oil co of California and Standard Station Inc v US, (1949) 337 US 293.
3
Competition Commission of India v C0-ordination Committee of Artists and Technicians of WB Film and
Television, AIR 2017 SC 1449.
4
(1956) 351 US 371.
  Commodities are reasonably interchangeable by consumers for the same
purpose is the definite rule for determining competition in relevant market.

2. Relevant Product Market would mean market comprising all those products and
services which are regarded as interchangeable or substitutable by the consumer by
reason of products or services.

 Characteristics
 Prices
 Intended use5

3. In the Magicbricks.com case,6 which pertains to activities of real estate listing,

property finder solution, etc., the Commission noted that online and offline services
cannot be distinguished for the purpose of defining Relevant Product Market as both
are ‘alternative channels’ for delivering the same service.
4. Similarly, the Commission in the case of Clues Network Pvt Ltd., 7 was of the view
that online market and offline market are only two different channels of distribution
and are not two different relevant markets as the buyers are most likely to shift either
from online to offline market or from offline to online market of price increases
significantly.
5. It is humbly submitted that the Respondent is an online platform that facilitates
online movie ticket bookings and Ibracadabra is another online movie ticket booking
platform introduced in Florin after the Respondent.
6. It is further submitted that the Respondent competes with other online platforms for
the sale of movie tickets as well as sale made through box offices of multiplexes and
single screens alike.8 Respondent, Appellant and the multiplexes though operating in
selling movie tickets in online and offline market but are competing against each
other and are just the different channels of distribution. Therefore, making ‘Movie
Ticket Booking’ market as the Relevant Market as the services are reasonably
interchangeable by the consumers for the same purpose in case of increase in price.
1.1.2. Respondent holds Dominant position in ‘Movie ticket booking’ market

5
The Competition Act, 2002, § 2(t), Acts of Parliament, 2002 (India).
6
Re Confederation of Real Estate Brokers Association of India and Magicbricks.com, Case No. 23 of 2016 [CCI].
7
Re Deepak Verma and Clues Network Pvt Ltd, Case no. 3 of 2016 [CCI].
8
Moot Proposition, para 8.
 7. Abuse of dominant position by an enterprise hinge on the pivotal inquiry of whether
an enterprise is in a dominant position in the ‘Relevant Market.’ Therefore, as a
preliminary step delineation of the correct relevant market is to be done for the
assessment of dominance,9 which is ‘Movie Ticket Booking’ market.
8. The underlying principle in the definition of dominant position is linked to the
market power which allows an enterprise to act independently of competitive
constraints and enables an enterprise to manipulate the relevant market in its favor, to
the economic detriments of its competitors and consumers.10
9. Market share of the enterprise provide information about a firm’s past market success
and useful first indications of the market structure. These initial indications are put in
perspective by other factors when making an overall assessment of the market power
of the firm under investigation.11
10. Market share test consists of two steps:

 Calculate the market share of the alleged dominant company.

 Compare the alleged dominant company’s position with competitors market
shares.

11. If a significant gap exists, this element is considered as indication of a dominant

position.12 Only when an enterprise has succeeded in winning a large part of the
relevant market be said to be in a dominant position and need not have eliminated all
opportunity of competition for that purpose.13
12. It is humbly submitted before the Tribunal that the Respondent is the first choice for
online movie bookings for at least 30-35% of the consumer base. 14 In contrast, 15-
20% of consumers prefer Ibracadabra over the Respondent for online movie
bookings and remaining market share is held by various smaller players which is not
more than 5% share, individually. 15 A significant gap exists between the market
shares of Ibracadabra and the Respondent and the Respondent has succeeded in
winning a large part as smaller players hold only 5 market share individually, making
the Respondent a dominant enterprise in the ‘Movie ticket Booking’ market.
9
GKB Hi Tech Lenses Pvt Ltd v Transitions Optical India Pvt Ltd.
10
Shamsher Kataria Informant v Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI).
11
HT Media Ltd v Super Cassettes Industries Ltd, 2014 Comp LR 129 (CCI).
12
DUGAR, supra note 1, at 494.
13
United Brands Company and United Brands Continental BV v Commission of the European Communities,
[1978] ECR 207.
14
Moot Proposition, Para 8.
15
Moot Proposition, Para 9.
 13. In general, combination of several factors determines a dominant position and these
factors are not necessarily determinative when taken separately. 16 In ESYS v Intel,17
the Commission held Intel acquired dominant position in the light that it created
strong entry barriers on the account of significant intellectual property rights
combined with market share.
14. In TAM Media Research Pvt Ltd, it was observed that for television audience
measurement there were certain technical expertise requirements involved in
capturing the viewership and required high costs as ‘People Meters’ needed to be
installed in the country. This factor acted as an entry barrier for new entrants.18 High
technology services demands continuous innovation, given barriers to entry and
Googles scale advantage, it is unlikely that many users would switch to a competing
search engine in the short or medium term.19
15. It is humbly submitted before the Tribunal that the Respondent spent years
collaborating with tech incubators and invested millions in research and development
to introduce real-time updates which required consumers to enable GPS-tracking on
their devices while using app.20 Respondents services demands innovation but as has
been observed in United Brands case, factors are not necessarily determinative when
taken separately and when combining this with the market share of the Respondent, it
is unlikely many users would switch to Ibracadabra or any other competitor in the
relevant market and act as entry barrier for new entrants, making Respondent hold a
dominant position in ‘Movie ticket Booking’ market.
1.2. Respondent imposed unfair condition on purchase or sale of services and was
involved in technical tying of services
1.2.1. Unfair condition on purchase or sale of services

16. When a dominant firm in a market, engages in the conduct that is intended to
eliminate or discipline a competitor or to deter future entry by new competitors, with
the result that competition is prevented or lessened substantially is abuse of
dominance. Exploitative abuse is conduct, whereby the dominant undertaking takes
advantage of its market power to exploit its customers. These practices are generally

16
Supra note 13.
17
2014 Comp LR 126 (CCI).
18
Prasar Bharti v TAM Media Research Pvt Ltd, Case No 70 of 2012.
19
Re Matrimony.com Ltd, Case No 7 and 30 of 2012 [CCI].
20
Moot proposition, Para 12.
 seen in markets with high entry barriers which means that completive entry is
difficult.21
17. In HMM Ltd v Director General, Monopolies and Restrictive Trade Practices
Commission,22 the Hon’ble Supreme Court held for a trade practice to be unfair, it
must be found that it causes loss or injury to the customer.
18. It is humbly submitted before the Tribunal that in March 2021, Respondent
penetrated the online payments market by launching their payments app called Rodeo
and within a few months of its launch, Respondent mandated that all tickets
purchased on its platform have to be paid through Rodeo. 23 This is an unfair
condition on purchase of movie tickets via Respondents app causing the consumer,
competitive loss as they were left with no competitive offers from the other
competitors in making the payment. Further it is submitted that the Respondent
required consumers to create an account in order to use the platform,24 which makes it
an unfair practice as personal details of the consumers are shared even if they do not
buy ticket form Respondents platform.
1.2.2. Respondent is indulged in tying of services with Rodeo
19. In case of Jefferson Parish Hospital v Hyde,25 the US Supreme Court observed,
“tying” arrangements, if restrain competition on the merits by forcing purchasers that
would not otherwise be made, be condemned.
20. In the Microsoft case, Commission laid down steps to determine abuse:

 Dominance in the tying market.

 The tying and the tied goods must constitute two separate products.
 Coercion: customers have no choice of obtaining the tying product without the
tied product;
 Foreclosure effect on competition
 No objective justification

The distinctness of the product must be determined by reference to consumer

demand.26

21
DUGAR, supra note 1, at 527.
22
(1998) 6 SCC 485.
23
Moot Proposition, Para 10.
24
Moot Proposition, Para 11.
25
446 U.S. 2 (1984).
26
Microsoft Corp v Commission, [2007] ECR II-3601.
 21. In Financial Software and Systems Pvt Ltd v ACI Worldwide Solutions Pvt Ltd, 27 the
Commission held, ACI had made the license agreement for BASE24, subject to
acceptance by banks of supplementary obligation of obtaining its professional
services in infringement of Section – 4 (2) (d) of the Act.
22. It is humbly submitted that the consumer in order to book ticket on the Respondent’s
platform, have to necessarily make the payment through Rodeo. The tied market that
is online payments market, is distinct from the tying market, i.e., ‘Movie Ticket
Booking’ market and consumers are left with no choice but to obtain the movie
tickets through Rodeo, which makes a foreclosure effect on the competition.
23. Further, No objective justification was made by the Respondent, though Respondent
says Rodeo allowed for faster payment processing.28 It is further submitted, a
consumer will not harm itself consciously and if some wrongdoing is done, relevant
rule will take care of such anomalies, 29 but by making Rodeo mandatory, consumer is
left with no choice but to make payment by using Rodeo, making the Respondent
abuse its dominant position.
1.3. Respondent By Leveraging Its Position in The Market Of ‘Movie Ticket Boking’
Enters Another Different Relevant Market

24. Dominant position hold by an undertaking in a relevant market, reserves to itself or

an undertaking belonging to the same group an ancillary activity which might be
carried out by another undertaking as part of its activities on a neighboring but
separate market, with the possibility of eliminating all competition from such
undertaking, is use of dominance in one market to enter another market.30
25. The Tribunal in MCX Stock Exchange case,31 laid down the conditions to be held
guilty of the breach of Section – 4 (2) (e):

 Enterprise has dominant position in one market.

 Enterprise is dealing not only in the market in which it is dominant but some other
market also.
 It wants to enter an entirely new market.

27
2015 Comp LR 253 (CCI).
28
Moot Proposition, Para 10.
29
Explosive Manufacturers Welfare Association v Coal India Ltd and its Officers, 2012 Comp LR 525 (CCI).
30
Centre Belge d’Etudes du Marche-Telemarketing v Compagnie Luxemburgeoise de Telediffusion SA and
Information Publicite Benelux SA, [198] ECR 3261.
31
The National Stock Exchange of India Ltd v CCI, 2014 Comp LR 304 (CompAT).
 26. It is humbly submitted before the Tribunal that Respondent holds a dominant position
in ‘Movie Ticket Booking’ market and after launching of their payments app (Rodeo)
penetrated the online payments market which is an entirely new market for the
Respondent, making Respondent guilty of breach of Section – 4 (2) (e) of the Act.
27. It suffices if the dominant firm intends to enter another market and facilitates it entry
by refusal to sell.32 It is further submitted that Respondent entered another market of
online payments by facilitating its entry by refusing to sell the movie tickets if not
paid by using Rodeo, making the Respondent leverage its position in market of
‘Movie Ticket Booking’ to the online payments market.

Issue 2

32
Commercial Solvents v Commission, [1974] SCR 273.
2. The CCF has erred in dismissing the allegation of denial of market access to online
booking platforms and theatres / multiplexes caused by Trickster’s foreclosure of
access to consumer data.
28. It is humbly submitted before this Tribunal that the Respondent’s practices resulted
in denial of market access to online booking platforms and theatres/multiplexes,
firstly, by violating ‘Essential Facilities’ doctrine by foreclosing access to consumer
data, secondly, by entering an MOU with theatres and multiplexes, thereby
preventing theatres/multiplexes from selling tickets via Ibracadabra or any other
online booking platform.
2.1. Respondent by foreclosing access to consumer data, violated ‘Essential Facilities’
doctrine
29. It is submitted that indispensability of any input, facility or infrastructure (non-
availability of any actual or potential substitute) is a major factor to determine abuse
and the input to which the access is sought must be something that is incapable of
being duplicated or could only be duplicated with great difficulty. 33 It is further
submitted that DG in Arshiya Rail Infrastructure Ltd case,34 observed, to invoke
‘Essential Facilities’ doctrine, the enterprise in question should be dominant player
and that there would be a waste of natural resources to replicate the infrastructure.
30. In Samsher Kataria Informant v Honda Siel Cars India Ltd, 35 the DG pointed out
essential factors to be taken into account in determining whether input, facility or
infrastructure would constitute essential facilities:

 Control of the essential facility by the monopolist

 A competitor’s inability practically or reasonably to duplicate the essential
facility
 The denial of the use of facility to a competitor
 The feasibility of providing the facility to the competitor36

31. It is humbly submitted that the Respondent, who holds a dominant position in the
‘Movie Ticket Booking’ market, required consumers to accept the terms and
conditions, such as sharing of personal details like name, address, phone number and
email IDs, their preferred genre, languages, and movie reviews with third parties, for
33
Oscar Bronner GmbH & Co KG v Mediaprint Zeitungs.
34
Arshiya Rail Infrastructure Ltd v Ministry of Railways, 2012 Comp LR 937 (CCI).
35
Supra note 10.
36
USA v Terminal Railroad Ass’sn of St. Louis, 224 U.S. 383 (1912).
 which Respondent charged exorbitant prices and also required consumers to enable
GPS-tracking while using the App.37
32. It is humbly submitted that Consumer data forms an essential facility as it is
significant for online booking platforms, theatres/multiplexes to understand their
consumer base and expectations and enhance their own online platforms and portals.
It is submitted that the Respondent with the help of this data, for accurate predictions
and timely actions coupled with peculiar characteristics of the market, be able to
solidify themselves in the market resulting into market access denial to existing
competitors.
2.2. Respondent by entering into an MOU with theatres and multiplexes prevented
them from selling tickets via Ibracadabra or any other online booking platform
33. The commission in BCCI case,38 observed that by explicitly agreeing not to sanction
any competitive league during the currency of media rights agreement, BCCI had
used it regulatory powers in arriving at a commercial agreement which is at the root
violation of Section – 4 (2) (c) of the Act.
34. The Commission in Samsher Kataria case,39 observed that Original Equipment
Manufacturers (OEMs) severely limited the access of independent repairers and other
multi brand service providers to genuine spare parts and diagnostic tools required to
effectively compete with the authorized dealers of the OEMs in the aftermarket by
entering into agreements/arrangements with specific overseas suppliers, which
specifically restricted such overseas suppliers from supplying such spare parts
directly into the Indian aftermarket, amounting to denial of market access by OEMs.
35. It is humbly submitted before the tribunal that the Respondent entered a MOU with
theatres/multiplexes, on the condition that they will sell at least 50% of their
inventory via the Respondent’s platform and the remaining through
theatres/multiplexes own platform (online/offline).40
36. It is submitted that the Respondent being dominant in the ‘Movie Ticket Booking’
market abuses it dominant position by entering into an exclusive and restrictive
agreement, which bars theatres and multiplexes from selling tickets via Ibracdabra or
any other third party online booking platform, that may make competitors incur
significant additional costs to induce the theatres/multiplexes to give up their
37
Moot Proposition, Para 11 & 12.
38
Surinder Singh Barmi v BCCI, 2013 Comp LR 297 (CCI).
39
Supra note 10.
40
Moot Proposition, Para 14.
exclusive contracts with the Respondent with market power resulting in denial of
market access.

ISSUE 3
3. The CCF erred in dismissing the allegations that Trickster has imposed unfair
conditions on multiplexes including price parity clauses and exclusive
arrangements that prevented dealings with other booking platforms.
37. As per Section 3 of the Competition Act, 2022 an agreement is an anti-competitive
agreement if it causes or is likely to cause Appreciable Adverse Effects in
Competition (AAEC). In the implementation of the same, it is humbly submitted that
Trickster has violated Section 3(4)(c) of the Act, firstly, the pre-requisites of Section
3(4) are fulfilled (I), there exists an exclusive distribution agreement between
Trickster and Multiplexes (II), price parity clause imposed by Trickster is anti-
competitive (III), and lastly, the agreement causes AAEC (IV).
3.2. the pre-requisites of Section 3(4) are fulfilled
38. For an agreement to fall under Section 3(4), certain requirements need to be fulfilled.
In consequence, it is humbly submitted that the pre-requisites under Section 3(4) of
the Act are fulfilled because firstly, Trickster and Multiplexes are enterprises [A];
secondly, Multiplexes and Trickster operates at different levels of the service
providing [B].
3.2.1. Trickster and Multiplexes are enterprises

39. An ‘enterprise’ is any person who or which is, or has been, engaged in any activity,
relating to the production, storage, supply, distribution, acquisition, or control of
articles or goods, or the provision of services. 41 The term ‘person’ in the definition
has broad enough meaning to include any company, firm, or body of associations.42

40. In casu, Trickster is an online platform for facilitating online ticket booking, and
Multiplexes are the source of which the tickets are booked. Multiplexes and Trickster
come within the meaning of enterprises since both are engaged in providing a set of
services (ticket booking and movie screening). Therefore, it is submitted that
Trickster and Multiplexes are enterprises.
3.2.2. Multiplexes and Trickster operates at different levels of the service providing

41
Competition Act, § 2(h).
42
Competition Act, § 2(l).
 41. The enterprises must operate at different levels in different markets. 43 The CCI
distinguished between the online and offline modes of booking on the basis of
functionalities – like the ease of use, reduced search costs, convenience of booking,
and the real-time ability to compare available movies and theatres alongside the
available seats and ticket prices for a particular show.44

42. Trickster.com (“Trickster”) is an online platform that facilitates online ticket

bookings for movies, plays, concerts, and sports events across Florin through its
mobile App as well as its website. 45
Therefore, it is humbly submitted that Trickster
and Multiplexes operate in different levels of service providing.

3.3. there exists an exclusive distribution agreement between Trickster and

Multiplexes

43. Section 3(4) provides for an inclusive list of agreements that may be anti-competitive
in nature.46 It is submitted humbly that there exists an exclusive distribution
agreement between Trickster and Multiplexes because firstly, there exists a
Memorandum of Understanding (‘MOU’) between Trickster and Multiplexes [A];
and secondly, the agreement is in the nature of exclusive distribution [B].

3.3.1. there exists a Memorandum of Understanding (‘MOU’) between Trickster and

Multiplexes

44. An agreement includes any arrangements, understanding, or action in concert, and

need not be in writing or legally enforceable. 47 The existence of an agreement can
also be inferred from coercive conduct when such conduct is used for imposing a
unilateral policy with the tactic of acquiescence of other parties.48

43
Competition Act, § 3(4).
44
In re, Vijay Gopal and Big Tree Entertainment Pvt. Ltd. (BookMyShow), C. No. 46 of 2021, (CCI).
45
Moot Proposition, 8.
46
Competition Act, § 3(4).
47
Competition Act, § 2(b).
48
In re: Jasper Infotech Private Limited and Kaff Appliances Ltd., C. No. 61 of 2014 (CCI).
 45. Trickster has entered into MoU with various cinema theatres and multiplexes. 49
Therefore it is humbly submitted that there exists an agreement between Trickster
and Multiplexes.

3.3.2. the agreement is in the nature of exclusive distribution

46. an exclusive distribution agreement includes “any agreement to limit, restrict or

withhold the output or supply of any goods or allocate any area or market for the
disposal or sale of the goods”.50 In the case of Cine Prekshakula Viniyoga Darula
Sangh v. Hindustan Coca-Cola Beverages Pvt. Ltd. & Ors 51 court laid down two tests
for determining exclusive arrangement i.e., whether the agreement has an unduly
long term, or whether the parties have sufficient options to terminate the agreement.

47. In casu, Trickster through MOU restricted the Multiplexes from selling tickets via
Ibracadabra or any other third-party online booking platform. 52 Furthermore, Trikster
has also imposed conditions of agreeing to MOU as necessary if the Multiplexes
want to be registered with Trickster53 which imposed an unduly long term,
additionally Trickster being the most popular online platform for booking 54 and no
sufficient options of exits.

48. In the case of WhatsApp LLC v CCI55 that imposing the “take it or leave it clause”
neds to be analysed on the basis of Market share and Market power 56. In this case,
Trickster has imposed a mandatory entry in MOU and compulsory sale of at least
50% (fifty percent) by Trickster if the Multiplexes wanted a loan from Trickster57.

49. Such conditions are arbitrary, unpredictable, and of discriminatory fashion which
disrupts of ability to run a business properly with no choice but to concede such
49
Moot Proposition, 14.
50
Competition Act, § 3(4)(c).
51
Cine Prekshakula Viniyoga Darula Sangh v. Hindustan Coca Cola Beverages Pvt. Ltd. & Ors.,
MANU/CO/0084/2011 (CCI).
52
Moot Proposition, 14.
53
Id at 14.
54
Id at 8.
55
WhatsApp LLC v CCI.
56
Harshita Chawla v. WhatsApp Inc. And Others, C. No. 15 of 2020 (CCI).
57
Moot Proposition, 14.
 unfair enforcement58. Therefore, it is hereby submitted that Trickster by using its
Market share and Market power imposed exclusive distribution conditions on various
Multiplexes.

3.3.3. price parity clause imposed by Trickster is anti-competitive

50. Imposing Price parity is anti-competitive.59 It is hereby submitted that Trickster was
involved in imposing price parity causing abuse of dominance60 and anti-competitive
behaviour61.
51. Court described a price parity agreement as a contract under which a supplier or
seller is obliged to offer an exclusive or lower price or better terms to an online
platform, even if the seller is working with other competing platforms. 62 Here,
Trickster’s MOU Clause 5 states that Clause 5 of Trickster’s MoU stated that “No
multiplex can sell tickets offline or on their own website for better prices or give
better offers than those offered on the Trickster platform.” 63
52. The determination of the Market share of all other players is relevant while deciding
price parity.64 Here, in this case, Trickster has a significant market holding of 30-
35%, compared to the rest of the competitors holding a smaller market.65
53. Wide price parity clause requires no onus of proof it is anti-competitive by nature. 66
Wide price clauses impede competition as they restrict competition between
platforms and raise barriers to entry, also The UK Competition and Markets
Authority (CMA) has found wide best-price clauses to be problematic.67

54. In the case of Wikingerhof v. Booking.com Wide price parity clause was explained
as when hotel providers were prohibited from offering rooms at better prices via any
other distribution channel. Here, Trickster is using the clause in the same context

58
Together We Fight Society v. Apple Inc. and Ors, C. No. 24 of 2021 (CCI).
59
Federation of Hotel & Restaurant Associations of India (FHRAI) & Anr. V. MakeMyTrip India Pvt. Ltd. (MMT)
& Ors, C. No. 01 of 2020.
60
Competition Act, § 4.
61
Supra, note 59.
62
Supra, note 59.
63
Moot Proposition, 15.
64
Supra, note 59.
65
Moot Proposition, note 8.
66
Supra, note 59.
67
Case C-59/19 Wikingerhof v. Booking.com
 whereby restricting the Multiplexes to sell their tickets at prices lower in the
Multiplex’s websites.68

It is humbly submitted therefore, that trickster through the use of its dominant Market Share
imposes arbitrary price parity to multiplexes whereby abusing its dominant position.

3.4. the agreement causes AAEC

55. An agreement to fall under Section 3(4)69 will be in contravention of Section 3(1)
only if the agreement causes or likely cause AAEC in the market. 70 Here the Rule of
Reason71 is required to be proved72 as the exclusive distribution agreements are of
Rebuttable nature. In the consequence, it is submitted that the Trickster’s MOU
causes AAEC in the market because firstly, Trickster has the market power [A],
secondly, the negative effects outweigh the positive effects [B].

3.4.1. Trickster has the market power

56. Market power is often termed central to antitrust analysis. 73 Market power refers to
the ability of a firm to raise prices above the competitive level without losing so
many sales so rapidly that the price increase is unprofitable and must be rescinded. 74
In normal parlance enterprises having more than 30% of the market share are
considered to have sufficient market power.75

57. In the European Union, vertical agreements are not given much thought unless both
parties pose-least 30 % market share.76 Having a significant market share is the most
important determinant of market power77.
68
Moot Proposition 15.
69
§ 3(4), Competition act, 2002
70
Id.
71
Tata Engineering and Locomotive Co. Ltd v. Registrar of Restrictive Trade Agreement (1977) 47 Comp Cas
520 SC;
72
EN, Guidelines on Vertical Restraints, 2.2.
73
George A. Hay, Market Power in Antitrust, 60 ANTITRUST L.J. 807, 807 (1991).
74
Landes, William M., and Richard A. Posner. “Market Power in Antitrust Cases.” Harvard Law Review, vol. 94,
no. 5, 1981, pp. 937–96. JSTOR, https://doi.org/10.2307/1340687. Accessed 19 Dec. 2022.
75
Automobiles Dealers v. Global Automobiles & Ors., C. No. 33 of 2011, (CCI).
76
EN, Guidelines on Vertical Restraints.
77
United Brands Company and United Brands Continental BV v Commission of the European Communities,
[1978] ECR 207
 58. In casu, Trickster is one of the most popular online ticket booking platform for online
movie ticket booking, Market reports also suggest that Trickster is the first choice for
online movie bookings for at least 30-35% of the consumer base.78 Therefore
considering the market share and the dominant position among the consumers of
Trickster, it is humbly submitted that Trickster has the significant market power to
cause AAEC.

3.5. the negative effects outweigh the positive effects

59. AAEC when caused it requires to be determined under Section 19(3) 79

of the Act.
Under this Section clauses (a) to (c) are negative factors whereas clauses (d) to (f) are
positive clauses. When the negatives outweigh the positives same is said to cause
AAEC. 80

60. In consequence, it is humbly submitted that the negative effects of the MOU
outweigh the positives because firstly Trickster’s MOU causes negative effects on the
market; and secondly, MOU has no positive effects.

3.4.1. Trickster’s MOU causes negative effects on the market.

a. Creates barriers to entry81 in the present case Trickster was charging exorbitant fees
from other booking platforms and multiplex/theatre owners for the datasets gathered
by its platform and Rodeo.

b. Driving existing competitors out of the market82 Trickster already has 30-35% of the
market share in the Online booking platform,83 further acquiring ‘Thunderbird’ which
has an 8% market share84 will increase Trickster’s dominance in the market making it
around 40-45%.
78
Moot Proposition, 8.
79
Competition Act, § 19(3).
80
Supra note 51; Automobiles Dealers Association v Global Automobiles Limited and Anr, C. No. 33 of 2011
(CCI).
81
Competition Act, § 19(3)(a).
82
Id at § 19(3)(b).
83
Moot proposition, 8.
84
Id at 21.
 c. foreclosure of competition by hindering entry into the market 85 in the present case
Trickster through its MOU has restricted the Multiplexes to contract with other online
platforms creating exclusivity in the market.86

d. It is humbly submitted that the MoU causes negative effects in the market by creating
entry barriers, driving existing competitors out of the market, and foreclosure of
competition by hindering entry.

3.5.1. MOU has no positive effects.

The agreement is rendered void if the negative effects are superseding the positive ones.87

a. accrual of benefits to consumers,88 is absent as Trickster mandated that all tickets

purchased on its platform would have to be paid for using the Rodeo payment service.
Further, consumers were required to accept the terms and conditions of both Trickster
and Rodeo, such as sharing of personal details like name, address, phone number, and
email IDs with third parties.89 This causes the privacy breach and also leading to take it
or leave it and not kept discretionary.90
b. improvements in the production or distribution of goods or provision of service 91 is a
positive effect but in the present case, Trickster has limited the information to itself92
and additionally has applied exclusivity93 in agreements with Multiplexes hence
limiting the improvements by any other players in the market.

c. There is no promotion of technical, scientific, and economic development by means of

production or distribution of goods or provision of services 94 since Trickster is the
major platform in the Florin95 which has established itself as the most preferred

85
Competition Act, § 19(3)(c).
86
Moot proposition, 14.
87
Supra, note 75.
88
Competition Act, § 19(3)(d).
89
Moot proposition, 11.
90
Supra, note 55.
91
Competition Act, § 19(3)(e).
92
Moot Proposition, 17.
93
Id at 14.
94
Competition Act, § 19(3)(f).
95
Moot Proposition, 8.
 platform for booking in the country whereby hampering the promotion of technical or
economic growth.

61. Conclusively, it is most humbly submitted that Trickster has violated Section 3(4)(c)
of the Act as stated there exists an exclusive agreement between Trickster and
Multiplexes additionally has also imposed price-parity clauses restricting the
competitive force of the market. Trickster’s market power is making negative effects
outweighing the positive ones causing AAEC in the market.

ISSUE 4

4. The CCF erred in approving Trickster’s acquisition of ThunderBird.

4.1. Failure of commission to comply with requirements under section 29, 30, and 31
62. Section 6(3) provides that Commission shall, after receipt of notice under sub-section
(2), deal with such notice in accordance with the provisions contained in sections 29,
 30 and 31. CCF approved the acquisition of thunderbird by trickster even after failed
to disclose all aspects of the Combination in accordance with Section 6(2) of the Act,
and merely imposed penalty on trickster.
4.1.1. Commission failed to demand more information on combination under section
29(2).
63. It was laid down in Amazon.com NV Investment Holdings LLC v. Competition
Commission of India96 that a perusal of section 6(2) r/w section 29(2) indicates that if
commission is not satisfied with response of parties concerned, then it can call for
investigation by director general (DG) and can direct the parties to furnish through
publication, complete information related to combination within 10 working days.
CCF erred in not directing the investigation by DG nor directing trickster to furnish
complete information about the acquisition.

64. In re, Etihad Airways PJSC97, CCI observed that if commission is of Prima facie
opinion that the proposed combination is likely to have AAEC, then it can take action
against the enterprise under section 29 of Act and direct parties to take such action as
commission may deem necessary. CCF imposing fine on the trickster for non-
disclosure of certain aspects of combination indicates prima facie opinion of
commission that trickster is involved in anti-competitive agreement however, no
investigation or direction was issued against respondent.

4.1.2. Failure of commission to investigate on combination as laid down under section

30(b)

65. Section 30(b) of Act provides that commission shall conduct inquiry where a notice
has been issued under section 6(2) and if commission is of opinion that such
combination is causing or likely to cause AAEC, then issue order under section 31 of
Act for such non-compliance or may impose penalties under section 42.
66. In Rajkumar Dyeing & Printing Works Private Ltd. v. CCI98 it was observed that
“Given the nature of penalties and the wide discretion vested with CCI, the same are
to be considered keeping in view several relevant factors including the nature of
directions that have remained uncompiled - whether they are substantive or merely
formal, the effect of such non-compliance, the intention of the parties accused of
96
2022 SCC OnLine NCLAT 238
97
2014 SCC OnLine CCI 176
98
2014 SCC OnLine Del 6450; Magnolia Flat Owners Association v. DLF Universal Limited, 2014 SCC OnLine CCI
49 : [2014] CCI 54
 non-compliance, the benefit derived by such parties, causes for non-compliance”,
decision is clearly indicative of the fact that penalties are punitive in nature which are
to be awards after conduction of due inquiry.

4.1.3. Failure of commission to either approve, reject, or modify the combination

agreement under section 31.

67. As per provisions laid down under section 31, after conducting due inquiry into the
proposed combination agreement, commission may either approve a combination
99
under section 31(1) or can prevent such combination from taking effect 100 under
section 31(2) or may recommend such modifications as necessary to eliminate
adverse effect on competition101.
68. CCF by approving the combination of Trickster with thunderbird failed to consider
the appreciable adverse effect on competition that is likely to be caused by proposed
combination. Further, the penalty imposed is not likely to deter the AAEC.
4.2. Commission wrongly imposed penalty under section 43A
69. Section 43A of Act, provides the power to `Commission’ to levy penalty for non-
furnishing of information and the `penalty’ shall be imposed by the `Competition
Commission’ upon any `Person’ or `Enterprise’ who had failed to issue `Notice’ to
the `Commission’ as per Section 6 (2) of the Act.102 However, commission issued
show cause notice to Trickster indicating that trickster furbished the information
however, failed to disclose the complete information and eliminated “prior intimation
and consultation” clause which prevented thunderbird to enter any commercial
arrangements for (a) digital payments on its online booking platform, and (b) listing
of new multiplexes and theatres on its platform103.
70. The abovementioned failure on part of trickster resulting in `omission’ to furnish
`material information’ attracts penalty under Section 44 which prescribes that such
“penalty shall not be less than rupees fifty lakh, but it may extend to rupees one
crore, as may be determined by the `Commission’.” Respondent 2 by imposing
penalty of 2 million as against not less than 5 million wrongly imposed penalty.

4.3. Acquisition of Thunderbird would result in AAEC

99
ArcelorMittal India Private Limited, C-2018/12/624
100
Supra Note 96.
101
Google International LLC, C-2022/03/913
102
Supra Note 96.
103
Moot proposition, Para 21.
 No person or enterprise shall enter a combination which causes or is likely to cause an
appreciable adverse effect on competition within the relevant market 104 and trickster
acquiring thunderbird would result in such appreciable adverse effect on competition
reasons of which are:

4.3.1. Factors laid down under section 20(4)

4.3.1.1. Extent of barriers to entry into market

71. In Re, Book my show105, Court observed that “exclusive agreements have the
potential to foreclose or reduce competition in the relevant market, as they may make
rival intermediary platforms or new entrants incur significant additional cost to
induce the cinemas to give up their exclusive contracts with the leading platform
with market power” Indicating towards the fact that exclusive agreement supplier and
allowing them not to sell their tickets on any other platform is part of anti-
competitive practice.
72. In CTS EVENTIM AG and Co. KGaA, Bremen vs. bundeskartellamt 106 It was laid
down those long-term exclusive agreements regarding all or substantial parts of the
services to be exclusively delivered to one of the parties creates a ‘foreclosure effect’
preventing the entry of new players into the market. Trickster by entering into
various agreements and MoU’s with multiplexes to offer there 50% of tickets through
trickster while remaining to be sold only on there own online platform or offline has
created impediments for other third-party competitors to either survive or enter
market.
73. ‘Per se prohibition’ in supply arrangement forms a part of exclusive agreements and
such condition imposed by the trickster in agreement not allowing multiplexes to sell
their tickets to third party also hinders the competition in the market.
74. Since trickster holds a large market share and through it anti-competitive practices as
created barriers in the market also causing loss to ibracadabra, the acquisition of
thunderbird by trickster will allow it to foreclose the market access for other players.

4.3.1.2. degree of countervailing power in the market

104
Section 6(1), competition act, 2002.
105
Case No. 46 of 2021, CCI
106
B6-132/14; – Hoffmann-La Roche; ECJ decision of 3.7.1991, case C-62/86 para. 149 – AKZO.
 75. Section 20(4)(d) and (f), provides that extent of market share and degree of
countervailing powers in the market are determinant factors to be considered while
determining AAEC caused in the market after acquisition. Since, Trickster enjoys a
market share of atleast 30-35% while Thunderbird has a market share of 8% pre-
acquisition. The merged entity would have a market share of atleast 38-42% in the
relevant market of movie ticket booking.
76. In United Brands v Commission107 it was held that although market share is not the
only factor but an important factor to be considered while determining ‘Market
power’ of an entity. Further, it was observed based on facts of the case that 40-50%
of market share is sufficient to assume dominant position in market.
77. The merged entity after acquisition of thunderbird by trickster will have a market
share of 38-42%, the second largest player being ibracadabra with 15-20% market
share and other small players each of them having not more than 5% market share
indicates to a market structure with no sufficient Countervailing powers against
trickster in market. thus, causing AAEC.

4.3.2. Foreclosure of market Access

4.3.2.1. As efficient competitor test (AEC test) and Price parity clause

78. In Akzo Chemie BV vs. Commission108, court of justice laid down ‘as efficient
competitor’ test validated by various other cases 109 in which deals with ‘selective
pricing’ and practices involving ‘below-cost price sales’ to exclude a competitor
from the market. In this test a price-cost analysis is to be done to determine whether
the practices of an entity allow it to sell certain goods or services below the market
price.
79. Trickster by indulging in Anti-competitive, ‘exclusionary agreements’ with
multiplexes and imposing a ‘price parity clause’ under clause 5 of MoU which
prevents the multiplexes from “selling tickets offline or on their own website for
better prices or give better offers than those offered on the Trickster platform”,
creates a foreclosure effect in terms of prices not allowing other players to compete.
Trickster by imposing such obligations creates foreclosure effect in the market.

4.3.2.2. Access to competition related data

107
United Brands v Commission, (1978) ECR 207
108
Akzo Chemie BV v Commission, Case C-62/86, Court of Justice [1991]
109
Post Danmark A/S v Konkurrencerådet, Case C-209/10, Court of Justice [2012]; National Carbonising
Company, 76/185/ECSC, European Commission [1976]
 80. In google search case 110
European commission held that access to consumer data
including preferences of customers, search rankings and prices of competing
products providing ‘unbridled access’ to consumer data thus, putting one enterprise
in dominant position in relevant market which may lead to exclusionary practices by
enterprise. Trickster collects a huge chunk of data from consumers including personal
data and location111 thus, making it a dominant player in online movie ticket booking
market.
81. A dominant enterprise having access to data can indulge in exclusionary practices
such as providing ‘Preferred seller’ status to certain category of products112. Trickster
uses a feedback mechanism that allots ratings to theatres and multiplexes, which
would be visible to consumers at the time of browsing or booking movies. However,
it mandates that to be on rating list, theatres and multiplexes had to enter the MoU
with Trickster and agree to its conditions. Thus, creating a foreclosure effect for other
players and multiplexes.
82. The practise of ‘Deep-discounting’ also forms a part of exclusionary agreement 113.
Trickster by imposing obligations upon multiplexes and theatre owners under clause
5 to not to sell tickets on other platform for a price less then they sell through
trickster amounts to deep discounting and results in foreclosure effect on competition
in relevant market.
83. The exclusive ownership of consumer data by an enterprise related to competition in
a relevant market may result in foreclosure effect for other enterprises 114. Selling of
data by trickster to other competitors at exorbitant prices, indicates that there was an
attempt on part of trickster to deny market access to other players. Such practice also
does not allow the consumers to ‘switch between the competitors’ thus, leading to
foreclosure effect.

4.4. Horizontal Agreement

84. Section 3(3)(d) of Act deals with horizontal agreements and prohibits the enterprises
from entering into collusive agreements. Such agreements shall be presumed to have
appreciable adverse effect on competition.

110
European Commission Decision, AT.39740 Google Search (Shopping) (C (2017) 444, 27.6.2017.
111
Para 11, Moot proposition.
112
Supra, Note 109.
113
Ashish Ahuja v. Snapdeal, Case No. 14 of 2014 before the Competition Commission of India, decided on 19
May 2014
114
Supra, Note 105.
 85. It was laid down In Re: Cartelisation in respect of zinc carbon dry cell batteries
market in India115 that horizontal agreement prevents the effective competition in the
market and acquisition leading to a large market share of merged entity not allowing
other smaller players in the market will be considered to have AAEC. Since,
Trickster has entered into an agreement for the acquisition of thunderbird operating
in same relevant market having market share of 8% and the merged entity will have
market share of 38-42% therefore, such an agreement will lead to appreciable
adverse effect on competition.

115
Suo Motu Case No. 02 of 2016, CCI