Module 5

The recession has fuelled rising demand both in the US and in the UK via
its price leading ASDA subsidiary. Revenues, profits, market cap and brand
value have all marched ever upwards. At the moment Wal-Mart owns a 20%
share of the entire retail grocery and consumables business in the US.

Wal-Mart stands at the polar opposite of the corporate spectrum from
banking.

While its market capitalization has fallen 17% since the crash in September
2008, it is still higher than it was in September 2007. It seems that in the
current climate, many will forgive the working conditions and low wages
forced upon Wal-Mart’s staff; Wal-Mart is still providing jobs and feeding
America.

5.25 INDIAN PREMIER LEAGUE [IPL]

Twenty20 has taken the cricketing world by storm since its inception in
2003. It has quickly become a permanent part of both the domestic and
international cricket calendars and has reignited and attracted wider interest
in this most gentrified of sports. The BCCI’s introduction of the Indian
Premier League with its $1 billion television deal and player auctions has
generated a level of hype and razzmatazz never seen before in the game of
cricket that is akin to established football, basketball and baseball
franchises. Intangible Business, and MTI Consulting, carried out an in-
depth analysis into the values of these new brands created by IPL

5.25.1 Components Of Brand Strength

5.25.1.1 Hard Measures

Heritage: largely irrelevant this year, but in future years, new teams will be
added to the IPL

Popularity: consumer interest and behaviour; registered members, website
visits, attendances and TV viewing figures

International salience: a measure of each team’s relevance to an
international audience

India salience: a measure of each teams relevance in its core market

Loyalty: demonstrates the ability of each brand to develop and sustain a
lasting relationship with supporters

Price premium: the strength and appeal of the brand allows premium
pricing

IPL record: success on the field of play facilitates the acquisition of new
fans and retention of the existing fan base.

5.25.1.2 Panel Measures

Owner equity: a measure of the impact the franchise owner(s) have on the
brand

Awareness: a measure of how well-known each brand is.

Perception: reflection of the franchise image in the eyes of consumers.

5.25.1.3 Methodology

Brand values are a reflection of a brand’s ability to generate future income.
It is a forward looking study that uses historic performance and future trends
to predict future activity. Intangible Business & MTI gathered the publicly
available sales data of 2008 for each franchise. To determine the strength of
the brands, each brand was scored on a series attributes that underpin the
power and reach of the each brand. These attributes were a mixture of hard
measures and soft measures of brand strength sourced from publicly
available information and from a qualitative panel of cricket fans from each
test playing nation. Using this data, each brand was then valued using the
relief-from-royalty methodology.

5.25.1.4 Calculating Brand Value

The actual brand valuation calculation is relatively straight forward. It
attempts to derive the amount the brand owner would be willing to pay for
its brand if it did not already own it. This approach is called the relief from
royalty methodology as it calculates how much the brand owner is relieved
from paying by virtue of owning the brand. The more complicated parts are
the components that contribute to the calculation. These three stages
illustrate the process:

1. FORECAST SALES

IB & MTI gathered last years (2008) “historical sales” data for each
franchise brand. Despite their relatively short existence it was assumed that
the brands have indefinite lives such as the more established sport franchises
like the English Premier League (11 of the 12 original members of The
Football League formed in 1888 are still running.) The compound annual
growth rate (CAGR) was adjusted to reflect the brand’s long term ability for
growth. This reflects more accurately a brand’s growth prospects based on
its current and historical performance.

2. ROYALTY RATE

To determine the strength of the brands, each brand was scored on three
measures of brand strength, provided from qualitative panel data –owner
equity, awareness and perception. Each brand was also measured on hard
data including heritage, popularity, salience, loyalty, price premium and IPL
record. The average of these two total scores (panel brand score and hard
brand score) was then positioned between a royalty rate range. This
determined a unique royalty rate for each brand. The royalty rate appears to
be a simple percentage but in fact this hides the depth of understanding
required to determine a rate that reflects accurately the profit/cash flow
generated by the brand alone –separate from other elements of product
delivery.

3. DISCOUNT RATE

Future sales were then multiplied by the royalty rate and reduced at the
relevant tax rate. They were then discounted to calculate the net present
value of those future cash flows. The discount rate reflects the time value
and risk attached to those cash flows and for the purpose of this exercise a
14% discount rate had been applied.

4. TESTING

Results were tested and verified by sense-checks, such as to comparable
commercial transactions, and referenced to proprietary information on the
value of leading brands, which all share similar characteristics of value cash
flow generation. These valuations were based on an analysis of publicly
available information and can’t be considered as necessarily reflecting true
past or future performance.

5. KEY ISSUES

The valuation was carried out by assuming that the TWENTY20 format was
here to stay. Although according to IB & MTI “it’s only a matter of time
before politics and self-interest attempts to upset the apple cart. In the
medium-long term, it’s almost certain that either individually or
collaboratively the other boards will attempt to launch rival competitions
that may either dilute the IPL or replace it as the premier domestic Twenty20
competition, but given the IPL’s successful start, the size of the Indian
market and the passionate Indian cricket fans, rival competitions face a near

impossible challenge and national boards would be better off supporting the
IPL.”
5.25.2 Building A Global Sports Franchise
To be considered alongside global brands like Manchester United and LA
Lakers. IB & MTI suggested the following factors as key building blocks
towards developing a sustainable global sports brand:

• LOCAL COMMUNITY
• MEDIA EXPOSURE
• SUCCESS
THE, THEN, TOP BRANDS:
• KOLKATA KNIGHT RIDERS, $22.3M
• DELHI DAREDEVILS, $18.7M
• CHENNAI SUPER KINGS, $18.1M
• MUMBAI INDIANS, £16.9M
• KINGS XI PUNHAB, $15.1M
• ROYAL CHALLENGERS BANGALORE
• HYDERABAD DECCAN CHARGERS

• RAJASTHAN ROYALS, $10.1M

5.26 GRAND METROPOLITAN

In 1988 GrandMet was the first U.K. Company to begin the practice of
accessing the value of recently acquired Brands (Smirnoff, Baileys, Haagen-
Dazs, Green Giant and Burger King) & then capitalizing the value on the
balance sheet.

Only acquired brands were included on the balance sheet despite the
obvious value to GrandMet of its internally generated brands. These
“Intangible Assets” constituted 27 % of the company’s assets.

Early valuations were based on historical earnings multiples, a method not
currently seen as accurately reflecting the true worth of a brand.

GrandMet also introduced “brand equity monitor”. The purpose of this was
not to place a historical value on a brand, but to give management an idea
of the performance of brands. The factors measured could not be measured
in purely profit and loss terms and the monitor included both economic,
consumer and perceptual measures of performance, which together formed
a subtle and responsive mechanism for tracking both brand health, and if
necessary financial brand value.

Diageo now monitors a number of key financial and marketing drivers to
establish the level of brand equity. These drivers focus management’s
attention on gaining customer awareness, loyalty, market share and the

brand’s ability to charge a price premium. It is this premium which
communicates the value of a brand to the company’s stakeholders.

There are a number of checks used by Diageo staff to assess the trends in
brand equity. A sample of these measures includes awareness, advertising
spend, market penetration and share of display.

Management is able to gauge the relative health of brands from a flow of
consistent and reliable data. The fact that the vast majority of this data will
never be included in the company accounts is irrelevant; it provides instead
a degree of strategic and operational control over the group’s most valuable
assets

The catalyst for these developments was the need to adequately reflect, from
solely a financial reporting perspective, the value of brands.

5.27 GODREJ

Godrej Consumer Product Limited’s valuation by Brand Finance done in
the year 2007. The GCPL underwent a Brand Valuation for 5 of its products
through Brand Finance, a UK based world renowned firm in marketing and
valuation expertise.

Brand Finance valued 5 major brands of GCPL:

• Cinthol

• Fairglow

• Godrej No.1

• Ezee

• Godrej PHD

The objective was to know the value of the brands & identification of
demand drivers for each brand, quantifying the potential branded business
value uplift by leveraging brand equity. Brand Finance in general, employs
these methods for its valuation purposes:

• Cost Based Valuation

• Income Based Valuation: Royalty Prices

• Income Based Valuation: Economic Use

• Market Based Valuation

5.28 TELECOM BRANDS

5.28.1 Introduction

This is the first time the values of the world’s largest mobile telecoms brands
have been published. The brands of those in the top 100 are collectively
worth over $300bn. This is a heavily branded industry. With mobile services
frequently generic – with little to choose from between competitors – brands
are generally the main differentiator. They can inspire loyalty, help reduce
customer churn, increase average revenues per user (ARPU), attract new

customers and encourage existing ones to trial new services and related
products.

The World’s Most Valuable Mobile Telecoms Brands 2008 identifies which
brands are succeeding in building value for their shareholders and which
brands require additional resource and attention. 500 of the world’s biggest
operators were studied to produce the top 100. The telecoms industry is
highly competitive and acquisitions are common.

2009 will be a testing year for all. The economic instability and uncertainty
should drive investors to seek defensive havens in businesses with safe,
strong, valuable brands. This publication highlights the most valuable
brands and those with the biggest opportunities, both in developed and
emerging markets.

Intangible Business would like to thank the people and organizations which
have contributed to the production of this report and research. Special thanks
goes to Informa Telecoms & Media, Mobile Telecommunications
International and representatives from MTI Consulting.

5.28.2 Methodology

Brand values are a reflection of a brand’s ability to generate future income.
It is a forward looking study that uses historic performance and future trends
to predict future value. Three years of publicly available historical sales data
was gathered for 500 of the world’s biggest telecoms brands. To determine
the strength of the brands, each brand was also scored on nine hard
measures, sourced from Informa Telecoms & Media, and nine measures of

brand strength from a panel of industry experts. Using this data, each brand
was then valued using the relief-from-royalty methodology to produce the
top 100.
5.28.3 Hard Measures
Turnover: volume of branded mobile income
Subscriptions: number of active subscribers attached to each brand
Customer churn: proportion of customers leaving the brand annually
Market share: average market share in each main market of mobile telecoms
users
Penetration: proportion of the market which has telecoms services
CAPEX: volume of capital expenditure invested in future benefits
EBITDA: earnings before interest, taxes, depreciation and amortization
ARPU: average revenue per user
Profitability: level of relative profitability of each brand
5.28.4 Panel Measures
Share of market: measure of market share

Brand growth: projected growth based on 3-5 years historical data and
future trends

Price positioning: a measure of a brand’s ability to command a premium

Market scope: number of markets in which the brand has a significant
presence

Brand preference: a measure of relative pre-disposition or spontaneous
selection of a brand

Brand awareness: a combination of prompted and spontaneous awareness

Brand relevancy: capacity to relate to the brand and a propensity to purchase

Brand heritage: a brand’s longevity and a measure of how it is embedded in
local culture

Brand perception: loyalty and how close a strong brand image is to a desire
for ownership

5.28.5 Calculating Brand Value

Brand values are a reflection of a brand’s ability to generate future income.
So this is a forward looking study that uses historic performance and future
trends to predict future activity. The actual brand valuation calculation is
relatively straight forward. It attempts to derive the amount the brand owner
would be willing to pay for its brand if it did not already own it. This
approach is called the relief from royalty methodology as it calculates how

much the brand owner is relieved from paying by virtue of owning the
brand. The more complicated parts are the components that contribute to the
calculation. These three stages illustrate the process, simply:

1. Forecast sales: Three years of historical sales data was gathered for 500
of the world’s biggest mobile operator brands. The top 100 brands have been
given indefinite lives as they are all market leaders, with heritage and
financially robust owners. The compound annual growth rate (CAGR) is
adjusted to reflect the brand’s long term ability for growth. This reflects
more accurately a brand’s growth prospects based on its current and
historical performance.

2. Royalty rate: To determine the strength of the brands, each brand was
scored on nine measures of brand strength, provided from qualitative panel
data. This included share of market, growth, price positioning, market
scope, preference, awareness, relevance, heritage and perception.

Each brand was also measured on three years of hard data including
turnover, subscriptions, churn, market share, growth, penetration, average
revenue per user (ARPU), and profitability. The average of these two total
scores (panel brand score and hard brand score) was then positioned
between a royalty rate range. This determines a unique royalty rate for each
brand.

The royalty rate appears to be a simple percentage but in fact this hides the
depth of understanding required to determine a rate that reflects accurately
the profit/cash flow generated by the brand alone – separate from other
elements of product delivery.

3. Discount rate: Future sales are then multiplied by the royalty rate and
reduced at the relevant tax rate. They are then multiplied by a discount rate
to calculate the net present value of those future cash flows. The discount
rate reflects the time value and risk attached to those cash flows and for the
purpose of this exercise has been left at a flat 9% as these are relatively low-
risk, established brands.

5.28.6 Key Issues:

1. Economy: Telecoms firms are traditionally resilient to economic woes.
However, few industries look likely to be immune from the negative impact
of the current financial crisis which is truly global. The telecoms industry
will be no exception. Brands will suffer but with this comes opportunity for
strong brands to steal market share from the weaker. Hatches need battening
down, focus needs sharpening and all brands will need to understand what
drives their value.

2. Brand Portfolios: Following acquisitions the dilemma always exists of
whether to keep the brand or transition another brand in its place. Different
operators take different approaches. In Hungary for instance, Telnor owns
and operates the Pannon brand using the Telenor blue logo whereas in other
countries the Telenor name is used with the same logo. Telefónica uses its
own brand as well as others including Movistar and O2. América Móvil also
has the Claro and Telcel brands. Would it be better for these companies to
merge their portfolio of brands into one dominant brand? Local brands can
have substantial traction which, if dislodged, would be extremely
detrimental. Generally, however, transitioning these brands into one
dominant brand in a sensitive fashion would increase the value of the whole.

3. Emerging Markets: Africa, China, India and Latin America present the
biggest opportunities for mobile operators with the sheer size of the
populations and economic growth prospects. These markets have
experienced significant growth in recent years attracting considerable
interest from international, acquisitive groups. As growth stagnates in more
developed markets of Europe and the US the attraction in emerging markets
will only increase.

4. Consolidation: Further consolidation is inevitable with synergies from
merging operations, the desire for cross-border brands and financial
instability making more deals look attractive. Customers are generally the
main motivation for acquisitions in the telecoms industry. However, as
customer relationships are generally with the brand, particular attention
needs to be given to brand due diligence prior to the acquisition.

5.28.7 The World’s Most Valuable Mobile Telecoms Brands 2008,
Top 3:

1. $30.8bn China Mobile

With 400m subscribers and 20% annual revenue growth driving income to
near $50bn in 2007, China Mobile is the world’s biggest mobile telecoms
operator. It also has the world’s most valuable telecoms brand, worth
$30.8bn. The China Mobile brand was also scored the highest by the panel
of industry experts and has the strongest overall brand score. Since losing
its monopoly China Mobile has continued to be the dominant operator, a
status it is set to continue enjoying.

2. $22.1bn Vodafone

Britain’s Vodafone group is the world’s second biggest mobile operator by
both revenue and subscribers. Its brand is the most geographically spread
and is the second most valuable telecoms brand in the world & the first-
most valuable brand in EU, worth $22.1bn. Its marketing investments,
distinctive speech mark logo and vivid red colouring aid the brand’s
standout and the company’s consistently acquisitive and nimble
management will ensure brand value continues to grow with the company.

3. $20.4bn Verizon Wireless

As the biggest mobile operator in the US with revenues of $43bn, Verizon
enjoys a customer base of over 70m. The brand’s significant advertising
spends and 2,600 stores and kiosks through the country ensure Verizon’s
constant and consistent visibility. Verizon’s relatively high ARPU and
positive associations with the brand will contribute towards maintaining and
developing the brand’s equity.

5.29 INFOSYS

The value of the brand Infosys shot up 62 per cent to Rs 22,915 crore in
fiscal 2006 against Rs 14,153 crore in fiscal 2005.

Similarly, the market capitalization of country's second largest software
exporter grew by 35 per cent to Rs 82,154 crore during the year from Rs.
61,073 crore, the company said in its annual report for 2005-06. The value

of the Infosys brand was at 27.9 per cent of its market cap during fiscal 2006
against 23.2 per cent in 2005.

5.29.1 Generic Brand

Infosys had adopted the generic brand earnings-multiple model to value its
corporate brand, the company said. The concept finds mention in "Valuation
of Trademarks and Brand Names" by Mr. Michael Birkin in "Brand
Valuation", edited by Mr. John Murphy.

Using the brand earnings-multiple model, Infosys based its valuation on the
following assumptions, among others the total revenues excluding other
income after adjusting the cost of earnings, the annual inflation at five per
cent and five per cent of the average capital employed used for purposes
other than promotion of the brand and a tax rate of 33.66 per cent.

Infosys annual report said it had used various models for evaluating assets
off the balance sheet to bring certain advances in financial reporting. "Such
an exercise also helps the Infosys management in understanding the
components that make up goodwill. The aim of such modelling is to lead a
debate on the balance sheet of the next millennium,'' it added.

5.29.2 Umbrella Concept

Goodwill is a nebulous accounting concept that is defined as the premium
paid to tangible assets of a company. It is an umbrella concept that
transcends components such as brand equity and human resources.

Corporate attributes including core competency, market leadership,
copyrights, trademarks, brands, superior earning power, excellence in
management, outstanding workforce, competition, longevity were built into
this concept, the annual report said.

Infosys believes the client base was its most valuable intangible asset.
Marquee clients or image enhancing clients accounted for 48 per cent of
Infosys' total revenues.

5.30 ANTI-COMPETITION ISSUES

The rationale for bestowing exclusive rights to the owner of intellectual
property (IP) has been understood as a means of reward and incentive to
foster innovation. The ability to exclude others from trading in a form of
business activity has been a foul smell on the nose of legislators across the
world. Legislators from many countries have recognized the benefits for
economies and consumers flowing from competition between traders and
introduced laws to prevent monopolistic behaviour. In India this is reflected
in the Competition Act. The tension between these two legal and economic
disciplines has been recognized for many years.

It has been noted by commentators and the courts that the ultimate
objectives of IP and anti-competition laws are complementary because both
serve the common purpose of maximizing consumer welfare, through
innovation, industry and competition61

61 : See, for example, Atari Games Corporation v Nintendo of America Inc (1990) 897 F 2d 1572 (Fed Cir 1990).

Khan’s study (1999) indicates that patent holdings are associated with a
higher likelihood of anti-competition conduct for medium and large firms.
This supports the hypothesis that innovative, successful firms are more
likely to garner anti-competitive attention. So a fine line needs to be drawn
that balances both the objectives of promoting competition while
encouraging innovation.

There have been United States studies which assert that in fact there is a
weak link between IP protection and innovation in most industries. Rather,
it is said, the incentive to invent is brought about by the existence of
competition rather than monopoly reward although some commentators
have acknowledged exceptions in certain industries such as pharmaceutical,
agricultural and chemical. Applying a sanity test to this discussion would be
to ask whether the firm who has developed an innovative product and built
a business around it falls away as the period of expiration of monopoly
rights approached. In fact the enterprise seeks to develop further
technologies in order to retain a competitive advantage.

The Indian government is yet to indicate what policy approach it intends to
adopt in drawing this fine line. It is more than just a theoretical argument.
Ultimately there will be grey areas no matte what is decided. It is impossible
to exhaustively identify the rules for determining when a transaction is anti-
competitive or merely just a reasonable exercise of monopoly IP rights. As
Lao has commented [p 10] in an understated way, ‘a dependable formula
for determining the optimal scope of protection for intellectual property, that

would help resolve the issue of anti-trust limits on intellectual property
rights from a policy perspective, is hard to derive’.

The debate has tended to focus on the forms of IP that lead to the
establishment or extension of new markets or that enable control of markets
such as patents, copyright, designs and know-how. Trademarks are not so
apparent in this discussion because it deals with product differentiation
although the brand may be strong enough that it could be said that licensing
conduct in respect of trademark rights may raise similar issues.

In any event licensing is recognized as the most common form of IP
commercialisation. The conditions that are contained within an IP licence
will dictate the level of ‘anti-competitive effect’. In order for entrepreneurs
to confidently implement licensing strategies they should have clear minds
on what may await them if they were to enter into the anti-competitive
swamp.

5.31 INDIAN RESTRICTIVE TRADE PRACTICES

Restrictive trade practices, as the term indicates, are practices which are
restrictive in nature and put restrictions on flow of supplies in a market and
trade. Any agreement which is restrictive in nature, whatever may be the
manner of restriction will be a Restrictive Trade Practice. Unfair trade
practices are unfair to the consumers. Both these practices are injurious to
interests of consumers. The Monopolies and Restrictive Trade Practices
Act, 1969 (MRTP Act) dealt with both UTPs and RTPs originally.

RESTRICTIVE TRADE PRACTICES

Definition of Restrictive trade practices as defined in MRTP Act, Consumer
Protection Act and Competition Act are discussed below:

A. MRTP ACT, 1969: According to s. 2(o), RTP means any practice which
has or may have the effect of preventing, distorting or restricting
competition in any manner. A practice will be a RTP in the following cases:

i. when it tends to obstruct the flow of capital or resources into the stream
of production;

ii. when it tends to bring about manipulation of prices, or conditions of
delivery or flow of supplies in the market relating to goods or services in
such manner so as to impose on the consumer unjustified costs or
restrictions.

The Supreme Court analysed the definition in the case of TELCO v
Registrar of the Restrictive Trade Agreements62. It was held that definition
is an exhaustive one and one of inclusion. Whether a trade practice is
restrictive or not can be decided by applying Rule of Reason. Any restriction
as to area or price will not be per se a Restrictive trade practice. To
determine whether a restriction regulates and promotes competition or
suppresses or destroy competition three matters are to be considered. Firstly,
what facts are peculiar to the business to which the restraint is applied?
Secondly, what was the condition before or after the restriction is applied.
Thirdly, what is the nature of the restraint and what is its actual or probable

62 (1977) 2 SCC 55 at p. 63.

effect. The SC again observed in Mahindra & Mahindra Ltd v Union of
India63 that the definition is pragmatic and result oriented.

S. 33 of the MRTP Act gave the list of agreements relating to RTPs which
were required to be registered under the Act.

B. THE COMPETITION ACT, 2002: S.3 of the Competition Act
prohibits anti-competitive agreements. S. 3(3) incorporates cases in which
there is a presumption of anti-competitive activity. This presumption is
applicable to cases where enterprises or persons engaged in similar or
identical trade or provisions of services make such agreements.

ANTI- COMPETITIVE AGREEMENTS: Agreements which are anti-
competitive in nature are prohibited. It includes:

§ Tie-in arrangement

§ Refusal to deal

§ Exclusive Dealings

§ Resale price maintenance

A dominant enterprise or a group may become abusive of its dominant
position and may indulge into restrictive trade practices. Such practices are
dealt under S.4 (2) of the Competition Act. Such practices include limiting

63 (1979)2 SCC 529.

production or scientific or technical development, denial of access to
market, barriers to entry and expansion etc.

C. THE CONSUMER PROTECTION ACT, 1986: According to S. 2
(nnn) of the Consumer Protection Act, 1986, restrictive trade practice means
a trade practice which tends to bring about manipulation of price or
conditions of delivery or to affect flow of supplies in market relating to
goods or services in such a manner as to impose on the consumers
unjustified costs or restrictions. Such practices include delay beyond the
period agreed by the trader for supply of goods or in providing services
which may have increased the prices or is likely to increase the prices and
any trade practice which requires a consumer to buy, hire or avail of any
goods or services as condition precedent to buying, hiring or availing of
other goods or services.

CASES ON RESTRICTIVE TRADE PRACTICES

Bengal Chemists of Druggists Association [(1997)27 CLA182 (MRTPC)]:
Scheme under the enquiry imposed restrictions on the appointment of
authorized stockiest, distributors, appointment after termination of the
existing stokiest services or on the introduction of new products by existing
manufacturers of medicines was held to restrictive trade practice prejudicial
to public interest.

Bata Co Ltd [(1976) 46 Comp Cas 441]64: Bata made agreements with small
scale producers of footwear and restrained them from purchasing raw
materials from parties other those approved by Bata and also prohibited

64 1976 46 CompCas 441.

them from selling additional production to any other party or at prices
without Bata’s approval.

In re Radhakrishnan International School [RTP Enquiry no 43/1992]:
Students were forced by the school to take at least one full booklet
consisting of fate tickets numbering 20 in one booklet. Each ticket was
rupees five each. Students were forced to pay for the unsold tickets as a part
of the school fees. It was held to be RTP.

All the restrictive trade practices from the MRTP Act have been inserted in
the Consumer Protection Act (CPA). One has to see that the objectives and
the reliefs provided by the MRTP Act/ Competition Act and the CPA are
different. MRTP Act has been replaced by the Competition Act (CA). The
Competition Act has actually wider scope and powers in comparison to
MRTP Act. It prohibits RTPs if they are restrictive and therefore, become
anti-competitive agreements. It prohibits dominant enterprises from abusing
their position by indulging into RTPs.

The area of restrictive trade practices contained within the law is a complex
area and the source of much litigation. The purpose of this material is to
give the reader an understanding of these restrictive trade practices
principles as a foundation for more detailed discussion on the scope of the
doctrine of restraint of trade.

At the risk of being too sweeping, the essential principles behind India’s
restrictive trade practices law are centred on the definitions of ‘market’ and
whether an enterprise’s conduct results in ‘substantially lessening
competition’ of that market (the ‘SLC test’). Those provisions that prohibit

conduct without requiring the test of substantially lessening competition are
referred to as ‘per se’ provisions.

5.31.1 Anti-Competitive Conduct

An enterprise is prohibited from entering into:

• a ‘contract’, ‘arrangement’ or ‘understanding’ (where ‘understanding’
has been interpreted to be a meeting of two minds, although it may be
possible that it includes a situation where one party is aware of a
course of action and does not commit to it, although an expectation or
hope will not be sufficient – see Halsbury’s Laws of India;

• that has the purpose of, effect or likely effect of ‘substantially
lessening competition’ in the relevant market.

• Determining this second element involves a quantitative and
qualitative assessment of the impact of the conduct. The court will
take account of normal commercial practice and commercial realities.
Some factors that are relevant include:

• the enterprise’s market share;

• market power;

• extent that the conduct keeps out competitors to the market;

• the barriers to entry;

• extent to which the client’s freedom of action or choice as supplier is
restrained;

• length of time of the restriction.

The enterprise will also be prohibited from entering into a contract,
arrangement or understanding that contains an exclusionary provision. An
exclusionary provision is one which has the purpose of preventing,
restraining or limiting the supply of goods or services to another person. The
exclusionary provision must be part of a contract, arrangement or
understanding between competitors. Importantly this test is not subject to
the SLC (substantially lessening competition) test.

5.31.2 PRICE FIXING

An enterprise is prohibited from fixing the price of goods or services with a
competitor or potential competitor. This includes the controlling or
maintaining of price for a discount, allowance or rebate under an agreement,
arrangement or understanding between competitors. Importantly, there need
only to be tow parties to the arrangement who are competitors. Such conduct
will automatically qualify as conduct that has the effect of substantially
lessening competition. There are some exceptions to this. It will not capture
the establishment of a joint venture where the conduct concerns provision
of services, such as the supply of IP for purposes of the joint venture, unless
the effect is to substantially lessen competition.

5.31.3 Exclusive Dealing

An enterprise is prohibited from entering into an arrangement or refusing to
enter into an arrangement on the basis that restricts a client in a way it can
deal with a competitor of the enterprise if there is an adverse effect on
competition. This may entail restrictions on how a person acquires or
resupplies goods or services or affects the acquiring and resupply of goods
or services in goods relation to a particular location. At the end of the day
the arrangement must have the effect of substantially lessening competition
in the relevant market.

5.31.4 Mergers And Acquisitions

The law prohibits an enterprise from acquiring shares or assets if that
acquisition has the effect of substantially lessening competition in the
relevant market. In addition to the factors referred to above courts have also
considered a likelihood of the enterprise being able to increase prices or
profits, the availability of substitutes, market attributes such an innovation
and growth product differentiation, the chances of removal of a vigorous
and effective competitor and the extent of vertical integration65.

5.31.5 Exploitation Of Intellectual Property

The law in essence provides that an enterprise may avoid contravention of
the above provisions if that conduct relates to the exploitation of the IP. This
discussed in more detail below.

65 : see Halsbury’s Law of India, para [420-1345]

5.31.6 Market Power

If an enterprise has a substantial degree of power in a market it is prohibited
from misusing that power for the purpose of eliminating or substantially
damaging a competitor, preventing entry of any person into a market or
preventing r deterring any person from competing against the enterprise.

5.31.7 Resale Price Maintenance

An enterprise is prohibited from insisting that that purchaser of goods or
services be re-supplied at a price less than that specified by the enterprise.
The SLC test does not apply to this conduct.

The Competition Act, 2002 in its preamble66 itself reaffirms the objective
for which it has been drafted, enacted and enforced. The very striking
feature of the Act is creating the office of a Competition Commission as a
specialized agency instead of making the provisions of the Act to be
entertained before any civil court. The Act prohibits jurisdiction of the civil
courts over to entertain any suit or proceeding in respect of any matter which
the Commission is empowered by the provisions of the Act67. To further
extend the powers of the Commission the Act has over ridding effect
therewith contained in any other law of the land68, which is further fortified

66 An Act to provide, keeping in view of the economic development of the country, for the establishment of a
Commission to prevent practices having adverse effect on competition, to promote and sustain competition in
markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in
markets, in India, and connected therewith or incidental thereto.
67 Section 61: No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which
the Commission is empowered by or under this Act to determine and no injunction shall be granted by any court or
other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this
Act.
68 Section 60: The provision of this Act shall have effect notwithstanding anything inconsistent therewith contained
in any other law for the time being in force.

by the provision of application of other laws69. The Act has an unparallel

provision to restrict the disclosure of the information obtained by the

Commission for any purpose of this Act70. The nation has felt empowered

under the law by the Right to information Act, 2005. Is the provision of the

section 57 a restrain to the provisions of right to access of information

provided under the Right to Information Act, 2005? The language of the

section 57 makes this question debateable!

No law has the power to command without the teeth to bite the non-abiders.

The Competition Act, 2002 is no exception to it with the reminder that the

Competition Act is a civil law and its violation should be considered only a

civil wrong. The Act prescribes detainment in the civil prison and the

liability to pay fine for non-compliance to the orders of the Commission or

failing to pay the penalty imposed as per the provisions of the Act71. The

orders passed under the provisions of the Act shall be enforced as if an order

or decree made by a High Court72

69 Section 62: The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other
law for the time being in force.
70 Section 57: No information relating to any enterprise, being an information which has been obtained by or on
behalf of the Commission for the purpose of this Act, shall, without the previous permission in writing of the
enterprise, be disclosed otherwise than in compliance with or for the purpose of this Act or any other law for the time
being in force.
71 Section 42: (1)Without prejudice to the provisions to this Act, if any person contravenes, without any reasonable
ground, any order of the Commission, or any condition or restriction subject to which any approval, sanction,
direction or exemption in relation to any matter has been accorded, given, made or granted under this Act or fails to
pay the penalty imposed under this Act, he shall be liable to be detained in civil prison for a term which may extend
to one year, unless in the meantime the Commission directs his release and he shall be liable to a penalty not
exceeding rupees ten lakh.(2) The Commission may, while making an order under this Act, issue such directions to
any person or authority, not inconsistent with this Act, as it thinks necessary or desirable, for the proper
implementation with this Act, as it thinks necessary or desirable, for the proper implementation or execution of the
order, and any person who commits breach of, or fails to comply with, any obligation imposed on him under such
direction, may be ordered by the Commission to be detained in civil prison for a term not exceeding one year unless
in the meantime the Commission directs his release and he shall also be liable to a penalty not exceeding rupees ten
lakh.
72 Section 39: Every order passed by the Commission under this Act shall be enforced by the Commission in the
same manner as if it were a decree or order made by a High Court or the principal civil court in a suit pending therein
and it shall be lawful for the Commission to send, in the event of its inability to execute it, such order to the High
Court or the principle civil court, as the case may be, within the local limits of whose jurisdiction,__

With this background of the powers vested within the Commission, it would
be prudent to look for the business of the Commission in the domain of IP.
As stated earlier, IP is a time bound monopoly which is considered bad for
the open market system but the TRIPS does not curtail the private monopoly
and advices the Members to ensure that the rights in IP are not going to
become barriers to the trade. IP is considered as the property of the new
millennium and the business environment can be imagined without IP. So it
is a kind of limitation to go with the IP monopoly which apprehensions of
being counterproductive to the trade facilitation if left unchecked! The
objective of the Competition Commission is to curb the agreements having
the potential to adversely affect on competition and abuse of dominant
position in the open market place. The agreements include written and oral
agreements, arrangements, understanding between or among two or more
parties/persons. The Competition Act has also included the most vital player
of the open market place without whom the market cannot exist, the
consumer. India is a country in which Government both at Central and State
level is engaged in non-governing commercial activities. The Government
holds monopoly in some areas like railways, electricity, arms and
ammunition manufacturing and atomic energy and in most of the cases acts
as the sole entity. The existence of Government owned commercial entities
have been covered under the scanner of the Act as the definition of the
entity73 word in the Act covers the Government run enterprises. So the

In the case of an order against a person referred to in sub-clause (iii) or sub-clause (vi) or sub-clause (vii) of clause
(1) or section (2), the registered office or the sole or principle place of business of the person in India or where the
person has also a subordinate office, that subordinate office, is situated;
In the case of an order against a person, the place where the person concerned voluntarily resides or carries on
business or personally works for gain, is situated, And thereupon the court to which the order is so sent shall execute
the order as if it were a decree or order sent to it for execution.

73 Section 2(h): enterprise means a person or a department of the Government, 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

Competition Act is another step in democratization of business and

commercial aspects of India without compromising the sovereign power of

the nation. There is no doubt in the name of creating a market regulator to

curb the anticompetitive practices sovereignty of the nation cannot be

compromised. But in the name of sovereign power, the decision makers

should not be permitted to act like sovereigns enjoying all rights without

any responsibility. To ensure the same is the responsibility vested with the

Commission. It is unfortunate that in dealing with the issues in which a

statutory body is involved the powers of the Commission have been

curtailed to make it virtually meaningless. The provision in the Act in this

respect says that in the course of any process before any statutory authority

if an issue is raised by a party about foul play in contravention to the

provisions of the Act, the concerned statutory authority may make a

reference to the issue to the Commission74. Firstly, it is left at the sweet will

of the statutory authority to make a reference to the Commission to the

raised issue. Secondly, the Commission has been left with the option to

provide an opinion after hearing the parties involved in the issue. Once again

it is left at the sweet will of the statutory authority to pass an order at its will

against the issue raised by a party. Then, what is the value of the opinion of

the Commission and the time consumed in the opinion delivery process? No

the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or
dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more
of its units or divisions or subsidiaries whether such unit or division or subsidiary or located at the same place where
the enterprise is located or at a different place or at different places, but does not include any activity of the
Government relatable to the sovereign functions of the Government including all activities carried on by the
departments of the Central Government dealing with atomic energy, currency, defense and space.
74 Section 21 (1): Where in the course of a proceeding before any statutory authority an issue is raised by any party
that any decision which such statutory authority has taken or propose to take, is or would be, contrary to any of the
provisions of this Act, then such statutory authority may make a reference in respect of such issue to the Commission.
(2) On receipt of a reference under sub-section (1), the Commission shall, after hearing the parties to the proceedings,
give its opinion to such statutory authority which shall thereafter pass such order on the issue referred to in that sub-
section as it deems fit; Provided that the Commission shall give its opinion under this section within sixty days of
receipt of such reference.

law permits to a party to decide an issue arbitrarily and in this case the
statutory authority has been vested with right to ignore the opinion of the
Commission. Even the provision of citing a reason in the order delivered by
the statutory authority, when the order is contrary to the opinion of the
Commission, has not been incorporated. The time bar for the Commission
to provide the opinion within sixty days of receipt of such reference request
once again makes a statutory authority, which is a necessary party in the
issue, not even to bother the opinion of the Commission to pass an order in
the issue raised after the expiry of sixty days timeline. The logic fails before
section 21[15] of the Act to establish a justified relation between
sovereignty and equity. The inclusion of Government departments in the
definition of enterprises is as good as the eyewash of section 21 of the Act
to let a party decide the issue herself to the exclusion of the other party and
non-binding opinion of the Commission, if it was sought by the issue
deciding statutory authority party at all.

The provisions which provide contours for scanning the handshakes
between the business entities by the Commission for the sake of ensuring
the healthy competition in the market have got strength from the following
three postulates of the competition law which is also known as antitrust law:

1. prohibiting agreements or practices that restrict free trading and
competition between business entities. This includes in particular the
repression of cartels;

2. banning abusive behaviour by an entity dominating a market, or anti-
competitive practices that tend to lead to such a dominant position. Practices

controlled in this way may include predatory pricing, tying, price gouging,
refusal to deal, and many others; and

3. supervising the mergers and acquisitions of large corporations,
including some joint ventures. Transactions that are considered to threaten
the competitive process can be prohibited altogether, or approved subject to
remedies such as an obligation to divest part of the merged business or to
offer licenses or access to facilities to enable other businesses to continue
competing.

The reflections of these postulates are found in the Competition Act, 2002
with special reference to sections 3, 4, 5 and 6.

The Commission is to look into the agreements which are anticompetitive
in nature and if decided anticompetitive would be void as prescribed in
Section 3. In short, the agreements which bring a person or an association
of persons into the dominant position are to be considered anti-competitive
to the exclusion of IP rights for either protection or to restrain infringement.
Although the section 3 defines anti-competitive agreements, the Act leaves
the floor open to define and interpret an anti-competitive de novo in respect
of each case.

The second in the check list of the anti-completive trade practice is abuse of
dominant position to assure the existence of small fish in the sea of open
market. The section 4 defines the abuse of dominant position and prohibits
it out rightly. The section 4 literally says that monopoly is bad and defines
what is bad in reference to enjoyment of monopoly in the market. There are
a few important points to ponder upon in reference to the misuse of the

dominant position in market. Firstly, the section 4 of the Act contrary to the
previous section does not come to exclude the dominant position acquired
by IP monopoly. Secondly, the dominant position is to be examined not only
in reference to the other competitors in the market but also in reference to
the consumers. Thirdly, the Section 4 also includes the misuse of dominant
power of an enterprise to use the poison of predatory price to wipe of the
competitors from the market. There is a complete chapter 16 in the Patent
Act, 1970 to check the malpractice of dominant position due to patent
monopoly in the form of compulsory licensing. The special attention has
been given in the Patent law to ensure the availability of medicines at an
affordable price. Similar is the provision in the Copyright Act, 1957 under
section 32 for granting license to publish a translation of a foreign work in
a regional language used in India for the purpose of teaching, scholarship or
research after one to three years, subject to the respective conditions, after
the publication of the original work for which otherwise the license is given
after seven years. These provisions in different IP Acts provide threads to
be tighten under the provision of section 4 of the Competition Act, 2002 to
leave little room for the abuse of dominant position to sustain.

The third set of issues at the scanner of the Commission, as provided in the
Section 5 of the Act, are related to maintain the competiveness in the market
is to keep a tab on the mergers, acquisitions and amalgamations of the
enterprises and have been very aptly named as combinations to exploit the
more dominant position in combination of major players. The Section 5
prescribes the threshold limits for the joint assets or turnover resulting from
handshakes of enterprises and the Commission has the role of a watchdog
to ensure that the provisions of the Act have been complied with in forming

the combinations of powerful market players. The Section 6 defines
regulations to adhere with to the extent of declaring the combination voids
if the combination causes or there are apprehensions of appreciable adverse
effect on competition within the Indian market. There is a provision under
section 6 of the Act for the parties involved in combination to approach the
Commission within seven days from the approval of the merger or
amalgamation proposal or execution of the of any agreement for acquisition
to take the approval of the Commission for forming the combination. The
Commission as prescribed in the Section 30 shall inquire about the
declaration made about forming the combination and the affect of the
combination on competition. The consent of the Commission is to become
an integral part of the due diligence procedure in the mega deals in the
Indian corporate world to face the danger of getting declared a void deal in
the time ahead. There is also a provision under Section 19 for making an
inquiry into certain agreements and dominant position of enterprise for
which the Commission may either take suo moto cognizance of a deal or
may entertain a complaint as prescribed or take a reference made by the
Central Government to inquire into a deal. The Commission is duty bound
by the Section 18 to eliminate practices having adverse effect on
competition, promote and sustain competition, protect the interests of
consumers, and ensure freedom of trade carried on by other participants, in
market in India. If the Commission disapproves a combination then the other
legal authorities are duty bound under the provision of Section 31(13) to
disapprove the combination.

The market would remain uneven if the position of any of the constituents
remains weak. This thought always remained in the mind of policy makers

and to make the constituents at equal footing and to ensure the balance the
special emphasis was given to the consumers in almost all legal instruments
at both domestic and international level. The objectives and principles of the
TRIPS Agreement have been defined in Article 775 and Article 876 of the
Agreement; both the Articles show the concern for the consumers. The
market place makes no sense without consumers. The consumers do not
compete in the market place with the producers and services providers; even
then they have been rightly safeguarded in the Competition Act, 2002.

The existence of the provision for curbing the anti-competitive trade
practice with reference to the TRIPS Agreement is not a co-incidence. The
blur at the border line of the domains of the IP laws and the competition law
makes the anti-competitive issues related to IP very complex. The most of
the top hundred global enterprises have a major share in their assets in the
form of IP. The section 3 is virtually defunct for the IP agreements in the
name of restraining any chance of infringement and protection of IP rights.
If the patent licensing agreements are carefully studied it would not be
difficult to point out anti-competitive conditions in them. Even in the service
agreements to the goods under IP monopoly all means are tried to manage
the IP within the control of the owner leaving virtually no chance for
infringement. The chances for infringement are always there in IP as it has

75 Article 7: The protection and enforcement of intellectual property rights should contribute to the promotion of
technological innovation and to the transfer and dissemination of technology, to the mutual advantage of the
producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to
a balance of rights and obligations.
76 Article 8: (1) Members may, in formulating or amending their laws and regulations, adopt measures necessary to
protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-
economic and technological development, provided that such measures are consistent with the provisions of this
Agreement.
(2) Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to
prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain
trade or adversely affect the international transfer of technology.

to enter into market for its own existence. There is no bank locker or manual
lock to keep IP safe. It sustains on just legal provisions and non-existence
of its physical properties makes the task more arduous to manage it in the
market while exploiting it commercially. Hence the pro monopolistic
approach is a must to exploit an IP throughout its life. Therefore the
exclusion of the IP agreements from the Section 3 of the Act is justified.
Again the million dollar question remains, how to see anti-competitive
provisions in those deals in which IP forms a major chunk of assets? The
fine line demarcating the anti-competitive agreements and justified IP
agreement is to be traced on case to case bases in the light of the section 4
of the Act which does not exclude IP while investigating The abuse of the
dominating position.

5.32 COLLABORATIVE RESEARCH AND DEVELOPMENT

The collaborative R&D projects that involve independent parties joining
together for the purpose of developing a particular technology in a specific
field have been common in recent times in India principally driven by the
Co-operative Research Centres program. This involves the sharing of
ownership of future IP and cross-licensing of future IP and each party’s
background IP.

If the licensing of the background IP is non-exclusive, as it usually is, it is
likely to fall within s 51(3) provided the licence concerns the subject matter
of the IP and not the end result of the IP such as a patented product.

The licence of future IP will not fall within s 51(3) so Pt IV of the TPA will
apply. However, the licence of future IP is often confined to internal
research and this is unlikely to give rise of Pt IV difficulties. If the licence
extends to commercial purposes then the terms of that licence become all
important for determining whether any section of Pt IV applies.

5.32.1 Establishment Of Incorporated Joint Venture For
Commercialisation

If independent enterprises pool their IP technology into one incorporated
vehicle that will be responsible for commercializing that technology then an
exclusive licence to that incorporated vehicle would, on its face, fall within
s 51(3). However, much depends on the conditions contained in that licence
arrangement and the effect of the pooling of that technology. If technology
is significant in its field it may well present market power issues or it may
be construed as trying to fix prices for the product.

5.32.2 Merchandising

To the extent that the licence conditions go beyond quality, kind of goods
and standards then s 51(3) would not apply.

5.33 Approach Of Other Jurisdictions

It is instructive to look at how other jurisdictions approached the tension
between anti-competition and maintenance of monopoly IP rights. The
United States Fair Trading Commission, the Japan Fair Trading
Commission and the European Union have issued guidelines concerning the

likelihood of certain conditions falling foul of anti-competition laws. None
of them, however, have issued practical guidelines that are equivalent to the
‘relates to’ test.

5.34 TESTING WHETHER LICENSING CONDITIONS FALL
FOUL OF PT IV

The following questions provide a rough guide as to whether the licence has
an anti-competitive component about it. If the answer to any to these
questions is ‘yes’ then the enterprise would be best served by seeking legal
advice as to whether the licence attracts protection afforded by s 51(3) and
if not whether there are truly concerns under Pt IV:

• Are the parties trying to achieve a result that is collateral to the receipt
of licensing revenues?

• Is the effect of the condition to promote another part of the enterprise’s
business (such as extra sales of other products or services)?

• Does it restrict a licensee from competing against the enterprise now
or in the future?

• Is the condition going to affect the price of the product or services? If
so, is the enterprise going to achieve a premium greater than it would
have done without the condition?

• Does the licence cause the licensee to deal with particular types of
organisation that are linked to the licensor?

• Does it enable the enterprise to achieve income from the IP rights
where it would not otherwise have been able to achieve that income if
it were located in another country?

• Does the condition prevent the licensee from challenging the validity
of the IP rights?

• If the arrangement involves cross licences, is the true purpose
something other than to enable the joint production of technology,
goods or services?

• Do the conditions go beyond what is reasonably necessary in order for
the enterprise to maintain protection of its IP rights?

• Does the condition prevent the licensee from maximizing the benefit
of the core rights given under the licence such s imposition of quotas
or being able to export to other markets?

5.34.1. Authorisations

In essence the test: ‘would the conduct benefit the public greater than the
detriment arising from the restriction of competition?’

5.35 Restraint Of Trade

Irrespective of any concerns arising under the Trade Practices Act, the
enterprise that imposes conditions in its licence that has the effect of
restraining the other party from carrying on part or all of its business must
tread carefully to ensure that the agreement will not be an enforceable on

the basis that it constitutes an unreasonable restraint of trade. This doctrine
exists in Indian law in all States and Territories as a matter of common law
although New South Wales has specific legislation dealing with it.

The law does not prevent the restraints being imposed. It merely required
that the restraint is not unreasonable. This involves balancing the legitimate
aim of protecting the interests of the enterprise. So an enterprise that gives
a licence to a distributor to access the database of clients bears a risk that
the distributor may use that know-how and information to compete against
the licensor. The imposition of a condition that restrains the licensee from
competing against the licensor prevents the licensee from spring boarding
and getting a free ride on the efforts undertaken by the licensor in
developing that know-how. If the court finds that the restraint is
unreasonable then all of the restraint will be held unenforceable.

An enterprise that requires a party to enter into confidentiality agreements
must be aware of this potential difficulty. An obligation to keep information
confidential can in essence be another form of restraint of trade if the
restriction on using the information prevents the recipient from carrying on
business. The period of the restraint will be critical and any restraint that
imposes a perpetual obligation will attract closer scrutiny from the courts.
This was the case in Maggbury Pty Ltd v Hafele India Pty Ltd (2001) 185
ALR 152. In that novel foldaway ironing board hinge. Maggbury had taken
steps to obtain patent protection but required Hafele to sign a confidentiality
agreement before disclosing the innovation to it. Eventually negotiations
broke down and Hafele began distributing its own version o the invention.
Maggbury had disclosed the confidential information to the public through

various trade fairs and through the patent application process. The
confidentiality agreement did not address whether the obligation of
confidence lapsed one the information became public. The High Court
found that the confidentiality agreement would have prevented Hafele from
carrying on its business and to the extent that it imposed the obligation
confidence beyond the time from when the information was made public it
was unreasonable and should not be enforced.

The most common mechanism used by drafters of documents to guard
against a restraint being held as unenforceable is to frame the restraint clause
in a cascading fashion as follows:

• maximum desired period of restraint

• next best desired period of restraint

• minimum desired period of restraint

• maximum territory in which the restraint applies;

• next best desired territory in which the restraint applies

• minimum desired territory in which the restraint applies

It is important that any agreement which contains a restraint clause also
contains a clause that enables any unenforceable clause to be severed from
the agreement without affecting the remainder of the agreement unless such
restraints is a fundamental term of the bargain.