TC-61

Trilegal’s 2nd NALSAR– CCI Antitrust Moot Court Competition, 2023

BEFORE THE HON’BLE COMPETITION COMMISION OF INDIA

Under
Section 19(1)(a) of Indian Competition Act 2002

Case No. __ Of 2023

In the Matter of

PUSHUP KABILA…………..………………...……..IMFORMANT 1
SOYI THING..………………………………...……..IMFORMANT 2

V.

FITNESS FREAK PVT LTD……………………OPPOSITE PARTY

MOST REVERENTLY SUBMITTED BEFORE THE HONOURABLE COMPETITION

COMMISION OF INDIA

Counsel on behalf of the Opposite Party

 TABLE OF CONTENT

LIST OF ABBREVIATION ............................................................................................................ i

INDEX OF AUTHORITIES.......................................................................................................... iii

STATEMENT OF JURISDICTION............................................................................................. vii

STATEMENT OF FACTS .......................................................................................................... viii

ISSUES FOR CONSIDERATION ................................................................................................. x

SUMMARY OF ARGUMENTS ................................................................................................... xi

ARGUMENTS ADVANCED ........................................................................................................ 1

ISSUE 1: Whether pre-loading of Eato Keto on the Fitness Freak device interface amounts to
anti-competitive conduct under the Indian Competition Act? .................................................... 1

1.1 Agreement has no negative effects on market ...................................................................... 1

1.1.1 Neither drives away existing competition nor forecloses competition........................... 1

1.2 Limited Duration and scope of the agreement ...................................................................... 4

1.3 The agreement is procompetitive .......................................................................................... 5

1.3.1 It promotes technical, scientific, and economic development ........................................ 5

1.3.2 There is accrual of benefits to the consumers................................................................. 6

1.3.3 The agreement improves the provision of services in the market. ................................. 7

ISSUE 2: Whether the sharing of data, without taking the users’ consent, amounts to an abuse
of dominance? ............................................................................................................................. 7

2.1 “Dominant Position is not bad - Abuse of Dominance is”. ................................................... 8

2.1.1 No loss to consumers. ..................................................................................................... 9

2.1.2 The agreement does not lead to denial of market access. ............................................... 9

2.2 Sharing of Data does not amount to abuse of Dominance. ................................................. 10

2.2.1 Boon rather than a Bane. .............................................................................................. 11

 2.2.2 Fitness Freak adheres by its Terms and Conditions. .................................................... 11

ISSUE 3: Whether unilateral removal of exclusive video content by Fitness Freak amounts to a
violation of the Indian Competition Act? .................................................................................. 12

3.1 Unilaterally removing the videos from its own Platform does not amount to Abuse of
Dominance. ............................................................................................................................... 12

3.1.1 Dominance in itself doesn’t amount to Abuse.............................................................. 13

3.2. The act of Fitness Freak does come under the ambit of Section 4 Nor does it attract the
grounds under section 19(4). ..................................................................................................... 17

3.2.1. In the arguendo, Fitness Freak has not Abused its dominant position. ....................... 17

3.2.2 The conduct of Fitness Freak is objectively justified ................................................... 18

3.3 Fitness Freak is vested with the authority to Unilaterally remove the videos from its
Platform. .................................................................................................................................... 19

3.3.1 Vested with IPR over those videos ............................................................................... 19

PRAYER ....................................................................................................................................... 24
 LIST OF ABBREVIATION

& And

§ Section

¶ Paragraph

AAEC Appreciable Adverse Effect on Competition

AIR All India Reporter

Anr. Another

CCI Competition Commission of India

COMPAT Competition Appellate Tribunal

ECR European Court Reports

Ed. Edition

EU European Union

Inc. Incorporation

In Re In Reference

IT Information Technology

Ltd. Limited

NCLAT National Company Law Appellate Tribunal

No. Number

OP Opposite Party

Ors. Others

i
Para Paragraph

Pg. Page

Pvt. Private

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

U.S United States

v. Versus

Vol. Volume

ii
 INDEX OF AUTHORITIES

LIST OF CASES CITED:

1. All India Organisation of Chemists and Druggists v. Abbott India Ltd., Case No. 09 of 38.
2012 (India Sup. Ct. Mar. 12, 2013).
2. Competition Commission of India v. Coordination Committee of Artists and Technicians
of West Bengal Film and Television Industry, Case No. 01 of 2017 (India Comp. Comm'n
Dec. 6, 2017).
3. Fastway Transmission Pvt. Ltd. v. Star India Pvt. Ltd., (2017) 8 SCC 593.
4. Excel Crop Care Ltd. v. Competition Comm'n of India, (2017) 8 SCC 47.
5. Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motors India Ltd., Case No. 72 of 2014
(India Comp. Comm'n Dec. 14, 2017).
6. MCX Stock Exchange Ltd. v. National Stock Exchange of India Ltd., (Appeal No. 46/2014)
before the Competition Appellate Tribunal (COMPAT).
7. Jet Airways Ltd. v. Kingfisher Airlines Ltd., Case No. 04 of 2009 (India Comp. Comm'n
Dec. 19, 2011).
8. Assn. of TPA v. General Insurers' (Public Sector) Assn. of India, Case No. 107 of 2013
(India Comp. Comm'n Dec. 25, 2015).
9. Shri Jyoti Swaroop Arora v. Tulip Infratech Ltd., Case No. 59 of 2011 (India Comp.
Comm'n Dec. 3, 2013).
10. Competition Commission of India v. Coordination Committee of Artists and Technicians
of W.B. Film and Television and Ors., Case Nos. 81 of 2016, 83 of 2016, and 95 of 2016
(India Comp. Comm'n Mar. 7, 2017).
11. Poonam Gupta v. Unitech Limited, Case No. 04/2012 (India Comp. Comm'n).
12. Meru Travels Solutions Private Limited v. Competition Commission of India and Ors.,
2017CompLR43(CompAT).
13. France Telecom v. Commission, Case C-202/07, [2007] ECR II-107, para. 100.
14. NV Nederlandsche Banden-Industrie Michelin v. Commission, [1983] ECR 3461, para.
57.

iii
15. Prasar Bharati (Broadcasting Corporation of India) v. TAM Media Research Private,
Case No. 70 of 2012 (CCI).
16. Fraser v. Major League Soccer, 284 F.3d 47 (1st Cir. 2002).
17. HMM Ltd v. DG, (1998) 6 SCC 485 : AIR 1998 SC 2691.
18. Centre Belge d'Etudes de Marche-Telemarketing v. CLT, 1985 E.C.R. 3261.
19. Intel Corp. v. Advanced Micro Devices, Inc., 542 F.3d 599 (D.C. Cir. 2008).
20. Google LLC v. Competition Commission of India, Case No. 07 of 2020 (ongoing).
21. Ficci - Multiplex Assn. of India v. United Producers/Distributors Forum, Case No. 01 of
2009 (CCI).
22. Belaire Owners' Ass'n v. DLF Ltd., [2011] CCI.
23. Prints India v. Springer India Pvt. Ltd., (2012) 109 CLA 411.
24. Sonam Sharma v. Apple, Case No. 24 of 2011 (CCI).
25. SM Duggar, SM Duggar's Guide To Competition Act, 2002 261 (5th ed., LexisNexis 2017).
26. Akzo Chemie BV v. Commission, (1991) 1 ECR 3359.
27. Union Brands Company v. Commission of EU, Case No. 27 of 1978 (ECJ).
28. Meru Travel Solutions Pvt. Ltd. v. Uber India Systems Pvt. Ltd., Case No. 25 of 2017
(CCI).
29. All India Online Vendors Assn. v. Flipkart India Pvt. Ltd., Case No. 20 of 2018 (CCI).
30. Ramakant Kini v. Dr. LH Hiranandani Hospital Pawai, Case No. 39 of 2012 (CCI).
31. M/s HNG Stock Exchange of India Ltd. v. Competition Commission of India, 2014
CompLR 304 (COMPAT).
32. Jupiter Gaming Solutions Pvt. Ltd. v. Secretary Finance Gov. of Goa, Case No. 15 of 2010
(CCI).
33. E.ON Ruhrgas AG v. European Commission, Case T-360/09 (General Court 2013).
34. Fraser v. Major League Soccer, 284 F.3d 47 (1st Cir. 2002).
35. BPB Industries plc and British Gypsum v. Commission, 1993 ECR 389.
36. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., No. 279-94 of 2003,
2008 INSC 969 (India May 16, 2008).
37. Eastern Book Co. v. D.B. Modak, (2008) 1 SCC 1.

iv
ARTICLES AND JOURNALS CITED:

1. Peter Roth QC, Bellamy & Child, European Union Law of Competition 497 (Oxford
University Press 2018).
2. Pradeep D Mehta, Towards a Functional Competition Policy for India- An overview
126 (ACADEMIC FOUNDATION 2005).
3. Tanaya Sanyal & Sohini Chatterjee, Combination Control: Strengthening The
Regulatory Framework of Competition Law in India?, 5 NUJS L Rev 425 (2012).
4. Publication Office Of EU, https://www.op.europa.eu/en/publication (last visited Mar.
2, 2023).
5. David S. Evans, The Industrial Organization of Markets with Two-Sided Platforms, 3
Competition Pol'y Int'l 15 (2007), https://www.law.berkeley.edu.
6. P.D. Sudhakar & K.K. Sharma, Competition law and policy in India, CCI (Mar. 03,
2022) OECD Korea Centre-on Indian Competition Law 14 11 2008, cci.gov.in;
Raghavan Committee Report, 1999.
7. 2nd Official Journal Of The European 7, (2009).
8. Lennart Ritter & David Braun, European Competition Law: A Practitioner's Guide
(Kluwer Law International 2005).
9. Unilateral Conduct Working Group, Unilateral Conduct Workbook, Chapter 3:
Assessment of Dominance (The Hague, Netherlands 2011).

BOOKS REFERRED:

1. Abir Roy & Jayant Kumar, Competition Law in India (2nd ed. 2014).
2. Alison Jones & Brenda Sufrin, Eu Competition Law, Texts, Cases and Materials 252
(6th ed. 2016).
3. Black Law Dictionary (4th ed. 1968).
4. Giorgio Monti, EC Competition Law, 351 (Cambridge University Press 2007).
5. Paul Samuelson, Economics 506 (10th ed. 1976).
6. R Whish and D Bailey, Competition Law 104 (8th ed. 2015).
7. S.M. Dugar, Guide to Competition Law 423 (6th ed. 2016).

v
STATUTES REFERRED:
1. The Competition Act, 2002.
2. The Constitution Of India, 1950.
3. The Copyright Act, 1957

LEGAL DATABASES:
1. Indian Kanoon
2. SCC Online
3. Manupatra

vi
 STATEMENT OF JURISDICTION

The Informant has invoked the jurisdiction of this Hon'ble Commission under Section 19(1)(a) of
the Indian Competition Act, 2002 to which, the Opposite Party opposes as Section 19(1)(a) can
be invoked when;

“19. (1) …..any alleged contravention of the provisions contained in subsection (1) of
section 3 or sub-section (1) of section 4 either on its own motion or on—…..”

vii
 STATEMENT OF FACTS

Fitness Freak is a digital fitness guide company that has created a platform called “The Digital
Personal Trainer” (Digital PT) that provides users with interactive workout content, tracks their
movements during workouts, and offers feedback on form. Fitness Freak’s Digital PT, within a
span of 3 years, becomes the most widely adopted fitness equipment, and has changed consumer
behaviour such that many frequent gym visitors have started working out from the comfort of
their homes, using the Digital PT.

Owing to this traction, various fitness content creators start approaching Fitness Freak and express
an interest in uploading their video content on Fitness Freak’s Digital PT interface. Fitness Freak
as a company believes in closely monitoring the quality of the video content that is uploaded to
its device. It conducts a consumer survey that reveals an overwhelming response in favour of
allowing various third-party video content creators, given that many of the content creators are
influencers and social media stars.

As a result, Fitness Freak decides that it will allow third-party video creators to provide content.
Fitness Freak puts out a social media post announcing that it will allow third-party video content
creators to upload content to its platform, subject to the following conditions:
i. the videos will be created, exclusively for Fitness Freak (the clauses vaguely seem to
suggest that the content cannot be uploaded to any other platform); and
ii. the videos will be in conformity with the quality guidelines of Fitness Freak which make it
compliant with the movement tracking technology. In the following 2 months, multiple fitness
influencers including Push-up Kabila, Soyi Thing and Bruce & Zoya start creating exclusive video
content and uploading it on Fitness Freak’s platform. Fitness Freak also uses this as an opportunity
to aggressively market its Digital PT through the various influencers that it has onboarded. This
leads to a near doubling of the consumer base in a span of two years (as indicated in the market
shares above).

viii
Global private equity investor Sharkania Inc. acquires a 20% equity stake in Fitness Freak and
secures the right to appoint two directors to its board. Sharkania Inc. also has a pre-existing
minority investment in a healthy food delivery venture called Eato Keto. Sharkania’s nominee
proposes installing Eato Keto on all Digital PT devices to provide prompt food suggestions based
on the user’s body metrics and fitness goals. Fitness Freak agrees, and a software update is rolled
out to install Eato Keto on all Digital PT devices. The feature is widely appreciated by Digital PT
users, and Eato Keto garners a significant amount of business, with its user base and revenue
doubling on a monthly basis. There is widespread consumer satisfaction, with many taking to
social media in appreciation of the integration.

Fitness Freak’s advisors and directors from Sharkania Inc. suggest that Fitness Freak’s platform
should only host and promote such forms of exercise as video content, which yield quick results,
in order to attract more consumers. Therefore, certain forms of exercise such as yoga, acrobatics,
pilates etc. should not be allowed on the platform, even though these videos are some of the most
widely viewed by users. In the following months, Fitness Freak unilaterally removes all videos of
a few forms of exercises, which were exclusively made by creators for Fitness Freak. While Bruce
& Zoya who predominantly train in calisthenics, do not protest to this. However, Push-up Kabila
and Soyi Thing write to Fitness Freak in protest to avoid their video content from being removed.

Push-up Kabila and Soyi Thing file an information before the CCI, alleging that unconditionally
removing the video content from the Fitness Freak platform is anti- competitive and has led to
irreparable loss. In their information, they also challenge the excessive and unreasonable data
collection, processing and sharing by Fitness Freak to provide targeted recommendations for
Sharkania Inc.’s investee company, Eato Keto. Specifically, they allege that the fact that Fitness
Freak did not take the users’ consent prior to sharing the data with Eato Keto amounts to an abuse
of dominance.

ix
 ISSUES FOR CONSIDERATION

ISSUE I. Whether pre-loading of Eato Keto on the Fitness Freak device interface amounts to
anti-competitive conduct under the Indian Competition Act?

ISSUE II. Whether the sharing of data, without taking the users’ consent, amounts to an abuse
of dominance?

ISSUE III. Whether unilateral removal of exclusive video content by Fitness Freak amounts to
a violation of the Indian Competition Act?

x
 SUMMARY OF ARGUMENTS

ISSUE 1: Whether pre-loading of Eato Keto on the Fitness Freak device interface amounts
to anti-competitive conduct under the Indian Competition Act?

It is humbly submitted before the hon’ble Competition Commission of India that pre-loading of
Eato Keto on the Fitness Freak device interface does not amounts to anti-competitive conduct
under the Indian Competition Act as (1.1) Agreement has no negative effects on market due to
(1.2) the limited Duration and scope of the agreement, (1.3) The agreement is procompetitive and
the (1.4) act is objectively justified.

ISSUE 2: Whether the sharing of data, without taking the users’ consent, amounts to an
abuse of dominance?

It is humbly submitted before the hon’ble Competition Commission of India that, sharing of data,
without taking the users’ consent, does not amount to an abuse of dominance cause (2.1)
“Dominant Position is not bad - Abuse of Dominance is” (2.2) Sharing of Data does not amount
to abuse of Dominance.

ISSUE 3: Whether unilateral removal of exclusive video content by Fitness Freak amounts
to a violation of the Indian Competition Act?

It is humbly submitted before the hon’ble Competition Commission of India submitted that
unilateral removal of exclusive video content by Fitness Freak does not amounts to a violation of
the Indian Competition Act (3.1) does not amount to Abuse of Dominance as (3.2) Section 3(5)
of the act enables an IP holder to impose certain reasonable conditions to protect its IPR 1

xi
 ARGUMENTS ADVANCED

ISSUE 1: Whether pre-loading of Eato Keto on the Fitness Freak device interface amounts
to anti-competitive conduct under the Indian Competition Act?

It is humbly submitted that pre-loading of Eato Keto on the Fitness Freak device interface does
not amounts to anti-competitive conduct under the Indian Competition Act as (1.1) Agreement has
no negative effects on market due to (1.2) the limited Duration and scope of the agreement, (1.3)
The agreement is procompetitive and the (1.4) act is objectively justified.

1.1 Agreement has no negative effects on market

The agreement between Fitness Freak and Eato-Keto has no negative effects on the market as
(1.1.1) Neither drives away existing competition nor forecloses competition.

1.1.1 Neither drives away existing competition nor forecloses competition

In the present matter in hand, its clear that Fitness freak does not drive away any existing
competition nor does it forecloses any competition rather promote healthy competition. It can be
inferred, from the case of All India Organisation of Chemists and Druggists v. Abbott India
Limited and Others2, The CCI had observed any agreement that does not restrict the entry of new
players into the market, does not prevent existing players from expanding their operations and that
does not prevent consumers from having access to a variety of products at competitive prices,
cannot be termed anti-competitive. In this case, the CCI held that an agreement between
pharmaceutical companies and chemist associations did not cause an appreciable adverse effect on
competition because it did not create entry barriers for other players in the market.

2
All India Organisation of Chemists and Druggists v. Abbott India Ltd., Case No. 09 of 2012 (India Sup. Ct. Mar.
12, 2013).

1
It is humbly submitted that the agreement between Fitness Freak and Eato Keto does not create
AAEC as, there is [i] No exclusivity provisions, [ii] No pricing or supply restrictions and [iii] No
collusion or coordination.

[i]No exclusivity provisions

"No exclusivity provisions” typically means that an agreement or arrangement between two or
more parties does not contain any provisions that restrict the ability of one or more parties to
deal with other parties. The agreement between Fitness Freak and Eato Keto consists of no such
clause that would restrict the dealings of the parties. Fitness Freak and Eat Keto both work
individually as well. Neither Eato Keto is not restrained to provide service through Fitness Freak
and nor fitness freak is restrained to provide a platform only to Eato Keto.

Similar phenomenon was seen in the case, Competition Commission of India v. Coordination
Committee of Artists and Technicians of West Bengal Film and Television Industry 3. In this
case, the Competition Commission of India held that the agreement between the Coordination
Committee of Artists and Technicians of West Bengal Film and Television Industry and the West
Bengal Motion Picture Industry did not create entry barriers for other players in the market, as the
agreement did not impose any exclusivity or restraint on the entry of new artists or technicians into
the industry.

[ii]No pricing or supply restrictions

"No pricing or supply restrictions'' generally means that the agreement between the parties does
not contain provisions that restrict or control the prices at which goods or services are sold
or supplied, or limit the supply of goods or services in a particular market. The prices of both
fitness freak and Eato Keto have not been influenced by the agreement. Eato Keto has to pay 1%
commission to Fitness Freak for every order placed, but this does not affect the price of the
product, thus implying that there is no control or any restriction on pricing of the goods or
service. Both the companies are not restrained with each other. Eato Keto has been taking in orders

3
Competition Commission of India v. Coordination Committee of Artists and Technicians of West Bengal Film and
Television Industry, Case No. 01 of 2017 (India Comp. Comm'n Dec. 6, 2017).

2
individually as well and even Fitness Freak is not binded to provide space only to Eato Keto, thus
implying that there is no limit on the supply of goods or services.

In the case of Fastway Transmission Pvt. Ltd. v. Star India Pvt. Ltd.4, the CCI held that an
agreement between a television broadcaster and a cable operator did not cause an appreciable
adverse effect on competition because it did not contain any pricing or supply restrictions. The
CCI observed that the agreement did not restrict the ability of other cable operators to enter the
market, nor did it affect the pricing or supply of television channels.

[iii]No collusion or coordination

If the parties to the agreement do not collude or coordinate with each other to restrict competition,
it is less likely to create entry barriers. In the case of Excel Crop Care Limited v. Competition
Commission of India & Ors.5, the Supreme Court of India observed that an agreement would not
be anti-competitive if it did not have any provision that resulted in price-fixing, output limitation,
or market-sharing. The court also held that the mere existence of parallel behaviour would not
amount to collusion or coordination.

In the current case, though Fitness Freak and Eato Keto are working with the same consumer
base, but that does not result in any collusion or coordination. Both have separate services to
be provided, separate business models and separate operations. The only link between both the
companies is the common consumer base and the platform at which they serve.

Therefore, it is humbly submitted that, even after Fitness Freak’s agreement with Eato Keto the
competitors exist in the market. There is no explicit clause in the agreement that would drive away
the existing competitors from the market. Foreclosure of competition occurs when the agreement
between two enterprises affects the ability of their competitors to enter the market or expand their
market share.6 Fitness Freak’s agreement does not create any sort of barriers for new players, it
indeed promotes competition by setting the bars high with their technological development.

4
Fastway Transmission Pvt. Ltd. v. Star India Pvt. Ltd., (2017) 8 SCC 593.
5
Excel Crop Care Ltd. v. Competition Comm'n of India, (2017) 8 SCC 47.
6
Peter Roth QC, Bellamy & Child, European Union Law of Competition 497 (Oxford University Press 2018).

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1.2 Limited Duration and scope of the agreement

The duration and scope of an agreement are important factors in determining whether it is likely
to cause an AAEC. If an agreement is for a limited time and scope, it may have less of an impact
on competition than an agreement that is long-term and wide-ranging. This is because a limited
duration and scope reduce the potential for the agreement to create entry barriers or distort
the competitive process in the market.

In the Fx Enterprise Solutions case7, the CCI held an agreement for after-sales services between
Fx Enterprise Solutions India Pvt. Ltd. and Hyundai Motors India Ltd. did not cause an AAEC
because the agreement was for a limited duration and scope. The agreement was for the provision
of after-sales services for a period of two years and was not likely to create any significant entry
barriers or affect competition in the market and in Excel Crop Care case8, the CCI considered the
duration and scope of an agreement between Excel Crop Care Limited and its distributors, which
was of 3 years. The agreement was for a limited duration and scope, and the CCI concluded that it
did not have an adverse impact on competition.

On the other hand, an agreement that is long-term and wide-ranging can have a greater potential
to create entry barriers and distort the competitive process in the market. For instance, in the case
of MCX Stock Exchange Ltd. v. National Stock Exchange of India Ltd.9, the CCI held that an
agreement between the National Stock Exchange of India Ltd. and its brokers for exclusive access
to its trading platform for a period of five years created entry barriers and caused an AAEC in the
market.

The agreement between Eato Keto and Fitness Freak, was limited to an installation of Eato Keto
on all Fitness Freak devices does not cause an AAEC as in return, for each order placed on Eato
Keto, Fitness Freak gets 1% of the order value as commission, for a period of 18 months. 10 The

7
Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motors India Ltd., Case No. 72 of 2014 (India Comp. Comm'n
Dec. 14, 2017).
8
Id. at 4.
9
MCX Stock Exchange Ltd. v. National Stock Exchange of India Ltd., (Appeal No. 46/2014) before the
Competition Appellate Tribunal (COMPAT).
10
Clarification No. 3.

4
specification of the time period for which fitness freak gets 1% itself shows the existence of
duration and scope of an agreement between Fitness Freak and Eato-Keto which has no AAEC
on competition.

1.3 The agreement is procompetitive

Even if the covert agreement is proven, but it is beneficial to the consumers, then it is not anti-
competitive.11 In consequence, it is submitted that the agreement is pro-competitive as firstly, the
agreement helps in technical, scientific and economic development (1.3.1) ; and secondly, there is
accrual of benefits to the consumers (1.3.2) and lastly, It improves the production of the goods
(1.3.3).

1.3.1 It promotes technical, scientific, and economic development

Section 19(3)(f) enumerates the promotion of technical, scientific, and economic development as
a positive factor while analyzing AAEC. 12 , Eato Keto and Fitness Freak, both released social
media posts regarding the integration. The same was met with positive consumer feedback.
Users are provided with a pop-up to place an order of a post-workout meal, only when they finish
a workout. They have an option to say no, each time. The application was installed through a
software update. Fitness Freak released a software update that integrated Eato Keto's post-workout
meal ordering feature into its platform. The update was lawful as the users had consented to
using of users’ data in any manner to meet their fitness goals.

In re Google Inc. Privacy Policy Litigation (2013) 13, The users argued that Google's automatic
software updates were used to collect data from their devices without their knowledge or consent
and the court dismissed the lawsuit, stating that the users had consented to Google's privacy policy
when they agreed to use its services. Similar to the above mention case, Fitness Freak's software
update provides users with the option to decline the post-workout meal ordering feature.
Additionally, the Terms and Conditions clearly state that Fitness Freak has the right to collect and

11
Jet Airways Ltd. v. Kingfisher Airlines Ltd., Case No. 04 of 2009 (India Comp. Comm'n Dec. 19, 2011).
12
Competition Act, 2002, § 19(3)(f), No. 12, Acts of Parliament, 2002 (India).
13
In re Google, Inc. Privacy Policy Litigation, 58 F. Supp. 3d 968 (N.D. Cal. 2014).

5
use user data for fitness-related purposes. Therefore, Fitness Freak's actions can be seen as
promoting technical and economic development in the fitness industry by providing a convenient
way for users to order healthy meals after their workouts and collect data to improve their fitness
goals. Thus, the action can be justified under Section 19(3)(f) of the Competition Act, which
allows for the promotion of technical, scientific, and economic development.

1.3.2 There is accrual of benefits to the consumers

Accrual benefits refers to the added benefits provided to the consumers with the existing service,
or any benefit that differs from the competitors. These benefits may also include providing choices
i.e. choices between products or option to diverge into any other company. Competition law must
adapt to consumer welfare along with other factors.14 Efficiencies are transferred to the consumers
which helps in achieving the objective of the Act 15. Further, the choice of consumers is based on
the efficiencies in services16 and it is used to determine Fitness Freak’s increasing efficiency and
competitiveness which is leading to overall consumer benefits and is pro-competitive.17
In the present case, although the recommendation by Eato-Keto post work-out is new in the market
it met with positive consumer feedback18. The consumers have a choice to switch to the services
as Users were provided with a pop-up to place an order of a post-workout meal, only when they
finish a workout. They have an option to say no, each time. Therefore, there is an accrual of
benefits to the consumers.
Fitness Freak's integration with Eato Keto and the data collection through automatic software
updates can be seen as a means of providing innovation, variety, and wider availability of goods
and services to the consumers. This is in line with the CCI's decision in Coordination Committee
of Artists and Technicians of W. B. Film and Television and Ors. 19 case, where the accrual of

14
Pradeep D Mehta, Towards a Functional Competition Policy for India- An overview 126 (ACADEMIC
FOUNDATION 2005).
15
Tanaya Sanyal & Sohini Chatterjee, Combination Control: Strengthening The Regulatory Framework of
Competition Law in India?, 5 NUJS L Rev 425 (2012).
16
Assn. of TPA v. General Insurers' (Public Sector) Assn. of India, Case No. 107 of 2013 (India Comp. Comm'n
Dec. 25, 2015).
17
Shri Jyoti Swaroop Arora v. Tulip Infratech Ltd., Case No. 59 of 2011 (India Comp. Comm'n Dec. 3, 2013).
18
Clarification No. 16.
19
Competition Commission of India v. Coordination Committee of Artists and Technicians of W.B. Film and
Television and Ors., Case Nos. 81 of 2016, 83 of 2016, and 95 of 2016 (India Comp. Comm'n Mar. 7, 2017).

6
benefits to the consumers was not limited to price reduction or increase in quality, but also included
innovation and variety. Fitness Freak's integration with Eato Keto provides consumers with the
option to order a post-workout meal, which can be seen as an innovative and convenient service.
Additionally, the automatic software update may provide consumers with better and more
personalized fitness recommendations based on their workout data. Therefore, it can be stated that
Fitness Freak's actions are in line with the accrual of benefits to the consumers under Section 19(3)
of the Competition Act, 2002.

1.3.3 The agreement improves the provision of services in the market.

One of the positive factors enlisted under section 19(3) is improvement in the production or supply
of goods and services.20 In the present case, Fitness Freak is the sole provider of Digital PT, a
device created to meet the fitness goals of the users that they desire. The agreement between
eato-keto and fitness freak was one of the ways to improve the quality of services provided by
fitness freak to achieve the end fitness goals and motivate them to yield quick results. The
agreement was on Eato providing food recommendations to Fitness Freak users only when (and
if) they finish doing their exercise, based on their fitness goals and the time of day when they
exercise.21 And hence, this can be and shall be viewed as a motivating factor for the users as well
as an improvement in provision of servies to the users rather than limiting or controlling provision
of services under section 3(3)(b) of the Act. Therefore, the agreement improves the provision of
services in the market.

ISSUE 2: Whether the sharing of data, without taking the users’ consent, amounts to an
abuse of dominance?

It is humbly submitted that, sharing of data, without taking the users’ consent, does not amount to
an abuse of dominance cause (2.1) “Dominant Position is not bad - Abuse of Dominance is” (2.2)
Sharing of Data does not amount to abuse of Dominance.

20
Competition Act, 2002, § 19(3)(e), No. 12, Acts of Parliament, 2002 (India).
21
Clarification No.3.

7
2.1 “Dominant Position is not bad - Abuse of Dominance is”.

Time and again, the CCI has decided that “mere dominance is not void, rather the abuse of
dominance is required.” In the CCI order in Poonam Gupta v. Unitech Limited22, it was observed
that the Competition Act did not prohibit dominance per se, but rather its abuse. Even in the Meru
Travels case23,the CCI observed that dominance was per se not bad, however, abuse of the
dominant position was against the Competition Act. However, dominant undertakings do have a
"special responsibility" towards competitive process to not allow its behavior to impair genuine,
undistorted competition in the internal market.24 "A finding that an undertaking has a dominant
position is not by itself a recrimination but simply means that, irrespective of the reasons for which
it has such dominant position, the undertaking concerned has a special responsibility not to allow
its conduct to impair genuine undistorted competition on the comme market." 25 For example, in
TAM Media Research Private Limited26, even though TAM had 100% market share, no abuse
was made out.

Similarly, in the present case it is an undeniable fact that Fitness freak dominates the relevant
market, which happens to be identified as the fitness market and digital market. Fitness Freak
has got a new wave of fitness by the introduction of Digital PT. The Digital PT provides a broad
range of interactive content (including Yoga, Weightlifting, callisthenics, high intensity interval
training etc.) for its users to follow along and workout on a regular basis. As opposed to the
ordinary fitness applications – which merely suggest limited workouts, the Digital PT guides its
users on their form and provides live feedback.

For the abuse of dominance to take place, Fitness Freak needs to impose an unfair condition on
the purchase27. The indirect or direct imposition of unfair or discriminatory conditions in the

22
Poonam Gupta v. Unitech Limited, Case No. 04/2012 (India Comp. Comm'n).
23
Meru Travels Solutions Private Limited v. Competition Commission of India and Ors.,
2017CompLR43(CompAT).
24
France Telecom v. Commission, Case C-202/07, [2007] ECR II-107, para. 100.
25
NV Nederlandsche Banden-Industrie Michelin v. Commission, [1983] ECR 3461, para. 57.
26
Prasar Bharati (Broadcasting Corporation of India) v. TAM Media Research Private, Case No. 70 of 2012 (CCI).
27
Fraser v. Major League Soccer, 284 F.3d 47 (1st Cir. 2002).

8
purchase or sale of goods28 or services constitute an abuse of the dominant position. The term
‘unfair’ has not been defined in the Act.29 It has to be examined either in the context of unfairness
in relation to customers or relation to a competitor.

In consequence, it is submitted that Fitness Freak has not imposed any unfair conditions as [2.1.1],
there is no loss to consumers; and [2.1.2] the agreement does not lead to denial of market access.

2.1.1 No loss to consumers.

The preamble and Section 18 30 of the Act provide that the main aim of the Act is to protect
the interests of consumers. Further, in HMM Ltd v. Director-General, MRTP31, the court
observed that “for holding a trade practice to be unfair, it must be found that it causes loss or injury
to the consumer.”

It is submitted that consumers do not face any injury from the agreement between Fitness Freak
and Eato Keto. Rather the agreement would help the consumers to follow a healthy lifestyle. It
would indeed provide more optimised service. The recommendation provided by Eato Keto is
not cohesive in nature, thus the consumers have the discretion whether to order or not. It is just
an additional service which is provided to the consumer by Digital PT, henceforth providing
accrual benefits to the consumers.

2.1.2 The agreement does not lead to denial of market access.

Market foreclosure sets in when the dominant enterprise uses its market power to restrict the
competition by preventing other competitors from gaining access to the market.32 Further, the
foreclosure has to be significant for it to be termed anti-competitive. Therefore, it is submitted that

28
Competition Act, 2002, § 4(2)(a), No. 12, Acts of Parliament, 2002 (India).
29
Id. at 4.
30
Competition Act, 2002, § 18.
31
HMM Ltd v. DG, (1998) 6 SCC 485 : AIR 1998 SC 2691.
32
Centre Belge d'Etudes de Marche-Telemarketing v. CLT, 1985 E.C.R. 3261.

9
the agreement between Fitness Freak and Eato Keto does not foreclose the market as it neither
restricts the entry of new players into the market nor does it wipe out the existing players.

2.2 Sharing of Data does not amount to abuse of Dominance.

Sharing of data does not necessarily amount to an abuse of dominance. An abuse of dominance
occurs when a dominant company uses its market power to restrict competition or harm consumers.
However, sharing of data can become problematic when it is done in a way that harms competition
or consumers. For example, if a dominant company shares data with its affiliates in a way that
gives them an unfair advantage over competitors, it could be considered an abuse of dominance.

There are several case laws supporting the proposition that sharing of data does not necessarily
amount to an abuse of dominance: In Intel Corp. v. Advanced Micro Devices, Inc.33,the US Court
of Appeals for the District of Columbia Circuit held that a company's "dominance alone does not
constitute anticompetitive conduct" and that a company must engage in anticompetitive conduct
to be found in violation of antitrust laws. Sharing of data, absent any other anticompetitive conduct,
does not constitute an abuse of dominance.

In Google LLC v. Competition Commission of India34, the ongoing case, the Competition
Commission of India found that Google's data collection practices did not amount to an abuse of
dominance, as they were not found to be exclusionary or anticompetitive. The commission noted
that data collection is a common practice in the digital economy, and that it is not inherently
anticompetitive.

These cases demonstrate that possession of market power or dominance alone does not
necessarily amount to an abuse of dominance, and that anticompetitive conduct must be present
to establish a violation of antitrust laws. Sharing of data, absent any other anticompetitive conduct,
does not necessarily constitute an abuse of dominance.

33
Intel Corp. v. Advanced Micro Devices, Inc., 542 F.3d 599 (D.C. Cir. 2008).
34
Google LLC v. Competition Commission of India, Case No. 07 of 2020 (ongoing).

10
The European Commission found that Google had abused its dominance by giving illegal
advantages to its own comparison shopping service in search results, while demoting rival
comparison shopping services. However, the Commission did not find that Google's use of data to
develop its own comparison shopping service amounted to an abuse of dominance. In the decision,
the Commission noted that "the fact that Google used its market power to promote its own
comparison shopping service does not, in itself, constitute an abuse."

In the above mention case, the use of data by a dominant company did not itself constitute an abuse
of dominance. Rather, it was other specific behaviour, such as giving illegal advantages to one's
own products or making it difficult for rivals to compete, that was found to be an abuse.

2.2.1 Boon rather than a Bane.

It is to be taken into consideration that the data was shared for the benefits of the consumer. There
is no potential loss or injury to the consumer. Live data sharing between Fitness Freak and Eato
Keto allows Eato Keto to accurately recommend foods to the consumer, making the service
more user optimised. This uplifts the user experience as well. And as provided, the service is highly
valued by Digital PT users. Consumer satisfaction is high overall, and many are praising the
integration on social media.

2.2.2 Fitness Freak adheres by its Terms and Conditions.

Fitness Freak "has the right to collect, process, and utilise the data in any manner, to accomplish
the users' fitness goals," according to the Terms and Conditions. Here, in the context of data,
"collect" refers to the act of gathering or acquiring data, "processing" of data refers to the act of
manipulating or analyzing the collected data. This can involve activities such as sorting, filtering,
organizing, transforming, or applying statistical methods to the data in order to derive insights or
make decisions based on it, "utilize" refers to the act of using the processed data for a specific
purpose. This can involve activities such as making decisions, generating reports, designing
marketing campaigns, or creating predictive models based on the data.

11
Fitness freak has collected the data, and has processed it through Eato Keto, by analysing the user's
data and have utilised it by providing appropriate recommendations on healthy post-meal. All this
forms the nexus to the objective of the company, which is to meet the fitness goals of the user.

ISSUE 3: Whether unilateral removal of exclusive video content by Fitness Freak amounts
to a violation of the Indian Competition Act?

It is most humbly submitted that unilateral removal of exclusive video content by Fitness Freak
does not amounts to a violation of the Indian Competition Act (3.1) does not amount to Abuse
of Dominance as (3.2) Section 3(5) of the act enables an IP holder to impose certain reasonable
conditions to protect its IPR35

3.1 Unilaterally removing the videos from its own Platform does not amount to Abuse of
Dominance.

Fitness Freak as a company has certain quality guidelines that content creators need to follow to
ensure that their videos are compatible with Fitness Freak's movement tracking technology.
Movement tracking technology is a type of technology that uses sensors or other devices to track
and measure physical movement, such as steps taken, distance traveled, or calories burned. Fitness
Freak uses this technology to track users' exercise progress and provide feedback or
recommendations based on that data. To ensure that the content creators videos are compatible
with Fitness Freak's movement tracking technology, content creators need to follow Fitness Freak's
quality guidelines, which may include specific instructions for exercises, use of equipment, camera
angles, and other factors that affect the accuracy and reliability of movement tracking data. Later
Fitness Freak happened to host and promote such forms of exercise as video content, which
yielded quick results, in order to attract more consumers. Therefore, certain forms of exercise
such as yoga, acrobatics, pilates etc.36 were not allowed on the platform, even though those videos
were some of the most widely viewed by users. In the following months, Fitness Freak unilaterally
removed all videos of a few forms of exercises, which were exclusively made by creators for

35
Ficci - Multiplex Assn. of India v. United Producers/Distributors Forum, Case No. 01 of 2009 (CCI).
36
Moot Preposition.

12
Fitness Freak as they did not yield the best result as other forms of exercises did. Fitness freak
closely monitors the results of its users to achieve end-goal. Though few videos posted by Push-
up Kabila and Soyi Thing (the informants) had the most views, fitness freak removed it cause those
views that those videos earned were on the bases of their popularity and not on the basis of yield
the best fitness result and hence, this act of fitness freak itself shows how much it cared about
the agreement between its users and them to achieve the end fitness goal as soon as possible.

3.1.1 Dominance in itself doesn’t amount to Abuse.

It is respectfully contended that dominance per se is not prohibited under the scheme of Antitrust
Law in India but its abuse is prohibited.37 The key elements considered while determining the
conduct of an enterprise38 in relation to section 4 of the Act 39 are, first, the relevant market in
which the enterprise is operating, second, the market power of the entity and third, whether the
conduct of the enterprise under investigation amounts to abuse.40 It is submitted that mere fact of
dominance is inconsequential in so far as attracting the Act is concerned. What has to be
shown is the abuse of the said dominance. An enterprise is said to be abusing its dominant
position if its activities, on perusal, are found to fit any of the activities listed under section 4(2).

(i) The relevant market is fitness market.

To establish any enterprise as dominant it is necessary41 to identify relevant market42. The

objective of defining the relevant market is to identify the actual competitors43 and to identify those
who can place constraints on fair competition. ‘Relevant market’44 can be determined with
reference to relevant product market and relevant geographic market.45 In consequence, it is

37
Belaire Owners' Ass'n v. DLF Ltd., [2011] CCI.
38
The Competition Act, No. 12 of 2003, §2(h), INDIA CODE (2002) [hereinafter Competition Act].
39
Competition Act, §4.
40
S.M. Dugar, Guide to Competition Law 423 (6th ed. 2016).
41
Prints India v. Springer India Pvt. Ltd., (2012) 109 CLA 411.
42
Publication Office Of EU, https://www.op.europa.eu/en/publication (last visited Mar. 2, 2023).
43
Coordinate Committee of Artists and Technician of West Bengal, C.A. No. 6691 of 2014 (SC).
44
Competition Act, 2002, § 2(r), No. 12, Acts of Parliament, 2002 (India).
45
Competition Act, § 19(5).

13
submitted that (i), the relevant geographic market is India; and (ii), the relevant product market is
the market for manufacturing Digital PT.

In Sonam Sharma v. Apple46, the CCI rejected the claim of the informant to distinguish market-
based on the mere difference in technological features. Further, it held that minuscule demand for
such products is evidence that prospective buyers do not take into account such add-ons as a
decisive factor while making their decision.

In the present case, Content on the Digital PT by content creators are mere advancements in
technology and not a separate product. Thus, the market for the content creators should not be
separated from the Digital or fitness one.

(ii) Fitness Freak is not in a dominant position.

Dominant position refers to a condition where an enterprise has a position of strength and when it
can operate independently of the competitive forces47. Under Section 4, it is a prerequisite
condition that the enterprise is dominant in the relevant market.48

In consequence, it is submitted that Fitness Freak is not at a dominant position in the relevant
market as (a), it does not operate independently of competitive forces prevailing in the market ;
and (b), it cannot affect its competitors or consumers or the relevant market in its favour .

(a) Fitness Freak does not operate independently of the competitive forces prevailing
in the relevant market

It is submitted that Fitness Freak cannot operate independently of the competitive forces prevailing
in the market as (i), the market share of Fitness Freak is less; (ii), there is the presence of
competitors in the market and (iii) There are no entry barriers.

[i] The market share of Fitness Freak is less

46
Sonam Sharma v. Apple, Case No. 24 of 2011 (CCI).
47
Competition Act, 2002, § 4(2), No. 12, Acts of Parliament, 2002 (India).
48
SM Duggar, SM Duggar's Guide To Competition Act, 2002 261 (5th ed., LexisNexis 2017).

14
Market share is an important criterion to decide the dominant player in the market but it is not the
sole criteria.49 The market share of Fitness Freak is just 29.47% in the relevant market. Market
share of less than 50% leads to a presumption that dominance is unlikely. 50 Further, “holding 40-
45 % of market share in the relevant market does not conclude the fact that it controls the market
per-se”.51 Market share is an important factor but it cannot be seen in isolation to give a conclusive
finding.52 Thus market share is not an end in itself.53

Furthermore, the digital market is volatile and using the arithmetic figure to determine the
dominant player may allow real offenders to escape54. Higher market share does not specifically
indicate a dominant position as market share is dynamic especially in such a manufacturing market.

Therefore, it is submitted that Fitness Freak cannot be said to have a dominant position in the
market as market share in the present case is low. Further, it is necessary to look into other factors
like size and importance of competitors, the economic power of the enterprise, entry barriers etc.

[ii] Presence of competitors in the market

The presence of competitors in the market is one of the most important factors to determine the
dominant position. The basic idea of independence in the market comes from analysing
competitors in the market. The presence of competitors with good reputation in the market prima
facie indicate that no player is dominant in the market55

The Uber case, the court held that “due to competition from other players in the market, Uber is
not in a position of strength. It cannot act independently of its competitors and customers, in the
relevant market”56. Even if the enterprise has 60% of the market share, it may not be dominant in
the market due to the presence of competitors.

49
Id. at 4.
50
Akzo Chemie BV v. Commission, (1991) 1 ECR 3359.
51
Union Brands Company v. Commission of EU, Case No. 27 of 1978 (ECJ).
52
Meru Travel Solutions Pvt. Ltd. v. Uber India Systems Pvt. Ltd., Case No. 25 of 2017 (CCI).
53
David S. Evans, The Industrial Organization of Markets with Two-Sided Platforms, 3 Competition Pol'y Int'l 15
(2007), https://www.law.berkeley.edu.
54
P.D. Sudhakar & K.K. Sharma, Competition law and policy in India, CCI (Mar. 03, 2022) OECD Korea Centre-
on Indian Competition Law 14 11 2008, cci.gov.in; Raghavan Committee Report, 1999.
55
2nd Official Journal Of The European 7, (2009).
56
Id. at 50.

15
In the Flipkart case, CCI held that “due to the presence of other players in the market like Amazon,
Paytm Mall, SnapDeal, Shopclues etc. with Amazon being a close competitor with a valuation of
around $700 billion and a global presence, Flipkart cannot have a dominant position in the
market”57. Presence of a strong competitor is more important than the number of competitors. CCI
held that “even with few players in the market, competition can work perfectly well, constraining
the conduct of each other”58. It is submitted that Bold’s Gym, All-time Gym and Brutal Fit, the
legacy gyms were giving a “cutthroat competition” to Fitness Freak even with only offline access
to gym and without the introduction to digital development in their gyms.

Hence it is submitted that due to the presence of a strong competitor, Fitness Freak is not in a
dominant position.

[iii] There are no entry barriers

The strength of an enterprise to create barriers on potential entrants in the market proves its
dominant position59. An enterprise should have the ability to engage in conduct that excludes
competition or prevents the entry of newcomers into the relevant market and can influence the
relevant market in its favour.

It is submitted that the agreement to remove videos if the video created by content creators is not
in conformity with the quality guidelines of Fitness Freak which does not conform with the
movement tracking technology is not denying market access as it.

It is respectfully submitted that Freak Fitness holds a dominant position in the fitness and as well
as the digital market and it is to note that market share of an equity is not the only one of the factors
that decides whether an enterprise is dominant or not, but that factor alone cannot be decisive proof
of dominance.60 Additionally, where an enterprise has a large market share, it may be constrained
by that of its other large competitors61. It is further submitted that a consistently high market

57
All India Online Vendors Assn. v. Flipkart India Pvt. Ltd., Case No. 20 of 2018 (CCI).
58
Id. at 54 (uber case).
59
Lennart Ritter & David Braun, European Competition Law: A Practitioner's Guide (Kluwer Law International
2005).
60
Ramakant Kini v. Dr. LH Hiranandani Hospital Pawai, Case No. 39 of 2012 (CCI).
61
M/s HNG Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR 304 (COMPAT).

16
share may also be the result of a firm's ability to stay ahead of its rivals through constant
innovation and development of products that appeal to the consumers.62 Therefore, it is
submitted that Fitness Freak cannot be said to have a dominant position in the market.

3.2. The act of Fitness Freak does come under the ambit of Section 4 Nor does it attract the
grounds under section 19(4).

It is humbly submitted that Fitness Freak has not abused its alleged dominant position in the
relevant market according to section 4 of the Act as firstly, the relevant market is the market for
the fitness in India; secondly, Fitness freak is not at the dominant position in the relevant market;
and thirdly, in-arguendo even if Fitness freak is considered to be a dominant player, it has not
abused its dominant position under section 4 of the Act.

3.2.1. In the arguendo, Fitness Freak has not Abused its dominant position.

Having a dominant position in the market is not prohibited under the Act. 63 However, the abuse of
the dominant position is prohibited.64 In consequence, it is submitted that even if Fitness Freak is
considered to be in a dominant position in the market, the removal of video still did not amount to
an abuse of dominance as firstly, Fitness Freak has not imposed any unfair condition and secondly,
the conduct of Fitness Freak is objectively justified.

(i) Fitness Freak has not imposed any unfair conditions

For the abuse of dominance to take place, Fitness Freak needs to impose an unfair condition on
the purchase65. The indirect or direct imposition of unfair or discriminatory conditions in the
purchase or sale of goods or services66 constitutes an abuse of the dominant position. The term
‘unfair’ has not been defined in the Act. It has to be examined either in the context of unfairness
in relation to customers or relation to a competitor.

62
Unilateral Conduct Working Group, Unilateral Conduct Workbook, Chapter 3: Assessment of Dominance (The
Hague, Netherlands 2011).
63
Jupiter Gaming Solutions Pvt. Ltd. v. Secretary Finance Gov. of Goa, Case No. 15 of 2010 (CCI).
64
E.ON Ruhrgas AG v. European Commission, Case T-360/09 (General Court 2013).
65
Fraser v. Major League Soccer, 284 F.3d 47 (1st Cir. 2002).
66
Competition Act, 2002, § 4(2)(a), No. 12, Acts of Parliament, 2002 (India).

17
In consequence, it is submitted that Fitness Freak has not imposed any unfair conditions on the
Informants as (i) there is no loss to consumers; and (ii) the agreement does not lead to denial of
market access.
[i] No loss to consumers
The preamble and section 18 of the Act provide that the main aim of the Act is to protect the
interests of consumers. Further, in HMM Ltd v. Director-General, MRTP , the court observed
that “for holding a trade practice to be unfair, it must be found that it causes loss or injury to the
consumer.”67

It is submitted that consumers do not face any injury from removal of those videos as the terms
and conditions between the users’, make it clear that any act done by fitness freak for achieving
the desired fitness result shall be the end-goal. Further, there exists cutthroat competition between
Fitness Freak and other legacy gyms and digital platforms like Vizeo and thus it can be said that
the consumers are at no loss. Rather the removal of videos has promoted competition among other
players.
[ii] The agreement does not lead to denial of market access
Unilaterally removed all videos of a few forms of exercises, which were exclusively made by
creators for Fitness Freak as they did not yield the best result as other forms of exercises did. The
removal of video due to the non-compliance with the terms and condition of the users’ that to yield
the best results as soon as possible and difficulty with compiling with the movement tracking
technology, does not stop the content creators to approach the same digital and fitness market
through any other company or by their own social media handles to reach the same consumers as
they’re influencers and have greater powers. Hence, the act of Fitness Freak does not results in
denial of market access68

3.2.2 The conduct of Fitness Freak is objectively justified

The abuse of dominance cases can be justified on the ground of “objective justification. 69 In the
Hyundai case, it was held that legitimate business practice can be an objective justification to

67
Id. at 29.
68
Competition Act, § 4(2)(c).
69
BPB Industries plc and British Gypsum v. Commission, 1993 ECR 389.

18
safeguard patents. Further CCI held that as the automotive industry is growing “objective
justifications provided by the company is a welcome step for the industry.”

In the present case, Fitness Freak's removal of certain videos can be seen as a legitimate
business practice aimed at promoting certain types of exercise videos. This can be considered as
an objective justification for the removal of certain videos, as it is aimed at improving the overall
user experience and attracting more consumers. Thus, Fitness Freak has not abused its dominant
position as the agreement is objectively justified.

3.3 Fitness Freak is vested with the authority to Unilaterally remove the videos from its
Platform.

Fitness Freak's removal of content is a reasonable exercise of its contractual rights. As the owner
of the platform, Fitness Freak has the right to determine what content is hosted on its platform, and
to remove content that violates its policies or contractual terms.

3.3.1 Vested with IPR over those videos

Fitness Freak, holds intellectual property rights for the video content uploaded by third-party video
creators on its platform. This gives them the legal authority to restrict the use of this content by
others, including the content creators themselves. The exclusivity clause mentioned in their
agreement also prohibits the content creators from uploading such content on any other video
hosting platform. Fitness Freak holds Intellectual Property (IP) rights for the video content
uploaded by third-party creators on its platform for which;

(a) it has the right to control the usage and distribution of the content and
(b) the Indian Copyright Act, 1957, protects the IP rights of the creator or owner of any original
work, including literary, artistic, musical, or dramatic works, by granting them exclusive rights to
reproduce, distribute, and perform the work.70

70
Indian Copyright Act § 14.

19
Fitness Freak has obtained the necessary permissions and licenses from the video creators for their
content, it can use the content on its platform and prevent others from copying, reproducing, or
distributing the same content without authorization. The IP rights enable Fitness Freak to restrict
the use and distribution of the content, which could also involve removing the content from its
platform if it finds any violation of the terms and conditions.

(i) Broadcasting of videos by Fitness Freak

Fitness Freak closely works in both, digital and fitness markets. It had conducted a consumer
survey that revealed an overwhelming response in favour of allowing various third-party video
content creators who happened to be the influencers and social media stars. So, as a result, Fitness
Freak decided to allow third-party video creators to provide content. Fitness Freak puts out a social
media post announcing that it will allow third-party video content creators to upload content to its
platform and it would be broadcasting the same in the Digital PT and as broadcasters, it has
authority over the videos. In the present matter, since Fitness Freak holds the intellectual property
rights for the video content uploaded by third-party creators on its platform, it could potentially be
considered as a broadcasting organization, and would be entitled to certain rights and protections
under the Copyright Act, 1957.

(ii) Fitness Freak comes within the meaning of “Broadcast”.

Section 2(dd) of the Copyright Act, 1957 defines "broadcast" as the communication to the public
of any work, performance or sound recording, by means of radio-diffusion, television, or other
means of communication of public viewing or public hearing. 71 Based on this definition, if Fitness
Freak is transmitting or communicating the video content uploaded by third-party creators on its
platform to the public, it could potentially be considered a "broadcast" under the Copyright Act,
1957. Fitness Freak is a broadcasting organization that hosts and promotes video content related
to fitness and exercise. The platform allows third-party video creators to upload their content,
which is then broadcasted to the public and Fitness Freak's actions appear to abide by Section 31D

71
Indian Copyright Act § 2(dd).

20
(1)72 of the Indian Copyright Act. The company is operating from its premises and is paying
royalties to the owners of the copyrighted work. It should be noted that the Indian Copyright Act
does not specifically define the term "broadcasting organization". Since Fitness Freak holds the
intellectual property rights for the video content uploaded by third-party creators on its platform,
it could potentially be considered a broadcasting organization, and would be entitled to certain
rights and protections under the Copyright Act, 1957.

In the case of Star India Pvt. Ltd. v. Leo Burnett (India) Pvt. Ltd. & Others (2003), the Delhi
High Court held that the term "broadcast" has a very wide meaning and includes not only the
actual transmission of signals but also the activities that are ancillary or incidental to such
transmission. The Court also observed that the transmission of signals need not necessarily be in
real time or simultaneously, and can include the re-transmission of signals at a later time. Based
on these observations, the Court held that Star India Pvt. Ltd., a satellite television channel, could
be considered a broadcasting organization under Section 2(dd) of the Copyright Act, 1957. The
Court further held that the satellite channel's activities, which included the acquisition,
aggregation, and packaging of various programs for transmission to the public, were ancillary or
incidental to the actual transmission of signals, and therefore fell within the ambit of
"broadcasting" under the Act. Relying upon the above case, it can be inferred that Fitness Freak
can be considered as "broadcasting organization" which also engages in the acquisition,
aggregation, and packaging of various video content for transmission to the public and hence,
it can be considered as broadcasting organization under the Copyright Act, 1957.

(iii) Authority under copyrights Act.

According to section 14(a)(i) of the Copyright Act, 195773, the Copyright owner has an exclusive
right to reproduce the work or authorize the reproduction of work in any material form. It grants
certain exclusive rights to the owner of a copyrighted work. These rights include the right to
reproduce the work, the right to issue copies of the work to the public, and the right to communicate
the work to the public. In the present case, Fitness Freak is considered to be the owner of the

72
Indian Copyright Act § 31(D).
73
Id. at 68.

21
copyrighted video content uploaded by third-party creators on its platform. As such, Fitness Freak
has the exclusive right to communicate the work to the public, which would include the right
to make the content available on its platform and to remove it from the platform. Section 14
of the Copyright Act, 1957 provides various exclusive rights to the owner of the copyright.
Subsection (a) of section 14 specifically deals with the exclusive right to broadcast the work.
However, it is important to note that the section uses the term "including" before listing the various
exclusive rights, which implies that the list is not exhaustive and there may be other exclusive
rights that are not specifically mentioned in the section. One such right is the right to not
broadcast the work. This right is implicit in the exclusive right to broadcast the work, as the owner
of the copyright has the right to control when, where, and how the work is broadcast. If the owner
chooses not to exercise this right, it does not mean that the right ceases to exist. The owner has the
right to control the use of the work, including the right to choose not to exploit certain aspects of
the work.

Further, in the Entertainment Network case74, the Bombay High Court held that the right to
broadcast a work is an exclusive right of the owner of the copyright. Similarly, In the Eastern
Book Company case75, Supreme Court held that the owner of a copyright has the exclusive right
to control the work and choose when and where to publish it. Therefore, it can be inferred that the
right to not broadcast a work is also a right under section 14 of the Copyright Act, as it is an
implicit aspect of the owner's control over the work.

It shall be concluded by stating that Fitness Freak has exclusive rights to the video content
uploaded on its platform, which includes the right to decide where and when to broadcast it. This
is in line with the provisions of the Indian Copyright Act, 1957. Fitness Freak's decision to remove
exclusive video content from its platform is not an anti-competitive practice as it does not prevent
other competitors from entering the market or limit consumer choices. Fitness Freak is merely
enforcing its intellectual property rights. The fact that Fitness Freak has exclusive video content
on its platform does not prevent other fitness companies from creating their own original video

74
Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., No. 279-94 of 2003, 2008 INSC 969 (India
May 16, 2008).
75
Eastern Book Co. v. D.B. Modak, (2008) 1 SCC 1.

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content and uploading it on their platforms. Thus, there is no significant barrier to entry in the
market.

Fitness Freak's exclusivity clauses do not prevent video creators from creating similar content and
uploading it on other platforms. It only prevents the creators from uploading the exact same content
on other platforms. This is a common practice in the industry and does not violate any
competition laws. Hence, Fitness Freak's actions are in line with the provisions of the Indian
Copyright Act, and there is no evidence to suggest that its actions are anti-competitive or abusive
under the Competition Act, 2002.

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 PRAYER

Wherefore, in light of the issues raised, authorities cited and arguments advanced, it is most
humbly contended that the Competition Commission of India be pleased to:

1. DECLARE, that Fitness Freak has not violated Section 3(4) read with Section 3(1) of the
Competition Act, 2002 as the agreement between Eato-Keto and Fitness Freak does not
fall under the ambit of anticompetitive agreement;

2. DECLARE, that Fitness Freak has not violated Section of the Competition Act, 2002 by
sharing users’ data to Eato-Keto;

3. DECLARE, that Fitness Freak has not violated Section 4 of the Competition Act, 2002 by
removing the videos of the Informant from its platform;

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience. And
for this, counsel on behalf of the Opposite Party as is duty bound.

All of which is humbly prayed.

Respectfully submitted by

Counsel on behalf of the Opposite Party

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