Protection or Privilege? Regulating Giants in Modern Markets of Capitalism

Trademarks to Tyranny: Discussing the Balance between Dominance and Protection

Capitalism as a system of economics and means of trade has been pervasive across all nations of the world. Emerging in the 17th century with the demise of Mercantilism, economic freedom soon took centre stage when it came to efficiency and maximum growth for market players. And with the evolution of what was a flexible and dynamic market economy, rivalry and greed came as inevitable consequences.

These ultimately tumbled down into the motivation of economic agents becoming self-interest – and since these self-interests led to the development of demand at lower prices, better quality and improved manufacturing costs, it soon became servile to the occurrence of benefits for society at large.

Competition hence proved beneficial for all – be it for consumers or for producers, or even the health and robustness of a nation’s economic competitive edge in the larger global economy. Augmented through lower costs and higher quality, it pushed agents on either side of the equilibrium to allocate scarce resources for efficient utilisation and promote dynamic efficiency. Situations that arose in contradiction to this lead to abuse or price cartelisation that have far-reaching consequences for all players involved. However, this process of competition was not an automatic one. In most laissez-faire economies, distortions are results not of natural forces of demand and supply, but of deliberative strategies amongst market players – which made state intervention to ensure fairness and functioning imperative. ^[1]

This is a brief story of how Competition Law hence came to be codified.  Rules designed to promote and to sustain market economies in the larger whole of the global structure became key in ensuring delegated roles and fairplay when it came to both the access of resources and the substantive natural principles of justice that governed their interplay. Though practice varies owing to jurisdictional sensitivities and differences, their substance is primarily the same. Their aim remains to protect and promote healthy interests in business without prejudicing the consumer or other producers, essentially building obligation and obedience on grounds of law.

Competition Law in India begins its inception with the Monopolies and Restrictive Trade Practices Act ^[2], whose aim was to prohibit abuse of market power and regulate rules regarding the same within the national economy. However, as India embarked on a journey through Liberalisation, Privatisation and Globalisation (LPG) reforms, the administration soon realised the Act had outlived its utility and control to sustain the appropriate growth aspirations of a budding population and economy. ^[3]  This is where the Competition Act of 2002 ^[4] was brought in. With a renewed system that emphasised the role of market in supplementation of strong administration oversight, the aim was to create a favourable and fertile climate that impacted business favourably within the nation.

The Act functions today to effectively counteract anti-competitive practices and provides parallelly for the establishment of a quasi-judicial body named the Competition Commission of India that oversees largely the administration and functioning of the law. Despite ardent drawbacks such as lack of full-time members or a mandate for technical expertise, the Act and Commission are legislatively instituted bodies that not just ensure fair control, but also ease of consumer business and international cooperation and flexibility in relief and remedies.

Role and Importance of the Competition Act, 2002 in India

The Competition Act of 2002 is a prudent statute in a multisectoral nation where an emerging economy promises multiple players and multiplicity in competition. It helps in preventing firms from creating monopolies, or misusing their positions of dominance in economies to block new entrants or perhaps even bundle services to restrict competition.

In the age of digitalisation and start-ups, the protection of emerging players is key and crucial to foster innovation and development. Allowing companies to compete on the merit of their services and their products ensures that predatory tactics do not work to undermine the overall workflow and growth in these emerging markets.

Furthermore, consumer welfare is an important facet. To ensure consumers access a waste plethora of products available to them, are protected from artificially inflated and monopolised prices of a single firm, and to ensure a standard minimum of quality is available to suit their interest and needs, as well as justify the price and position of the product within the economy, regulation through such an Act becomes a crucial mediator between both the firms and their end receivers.

The regulation of market behaviour – not forced through government allocation nor through private firms colluding, but through fair and competitive measures that ensure parity and level playing grounds – becomes hence an essential precursor to not mere regulatory transparency, but also keeping in line with a larger modern global economic framework of antitrust and rule-based policies.

The Act most importantly empowers the Competition Commission ^[5] (hereinafter referred to as the ‘CCI’) to represent as a quasi-judicial function and watchdog to the review of such competition-friendly policies, thereby accelerating India’s role and commitment to an ethical, fair and cooperative system of structural remedies and policy reforms.

Briefly Analysing the Interplay of Trade Law in the Domain

Trade Law and Competition Law (in the Indian, but also within the larger global context), serve their own distinct albeit interrelated goals. Large convergence is noted along lines of preventing dumping – a practice that involves penalising importers who sell goods in the market at below their mandated cost, in attempt to flood and dominate the market with the same – and in predatory pricing means such as undercutting others with rampant discounts and recouping their losses at a later point with a price hike. The Consumer Protection Act ^[6] and the Essential Commodities Act ^[7] are ardent examples in ensuring that such unfair methods are not adopted by players in the market, disparaging both other firms and consumers in the sector.

Similarly, Intellectual Property and its exclusivity and protection is dealt with the Trademarks Act ^[8] that ensures that certain symbols and usages are granted exclusively to the innovating firm such as to foster development and growth for newer, better-abled technologies.

Although a relatively newer and unexplored domain, the Information Technology Act ^[9] also enables similar rules that reflect the trend of protection accorded to data abuse and platform misuses.

The conflict however arises in the tussle that lays core to the debate on Competition Law in itself. Protection must not go against competition. That is, protection does not equate to removal of all forms of competition. India and its remedies must necessarily align with the World Trade Organisation’s rules ^[10] when it undertakes any measures. The challenge is ultimately to ensure a harmonious interplay of both areas, not an overriding of one into the other. Protection accorded should be equitable based on means and modes of legal and structural analysis, and must not translate into a case of rampant protectionism.

A Definitive Analysis of Dominance and Abuse through the Lens of Relevant Case Law

The fact of mere dominance is not prohibited in law – but of misusing such dominance is. The law strives to strike a balance between market success and market abuse. Rewarding innovation, investment and efficiency without due checks can create an unlevel playing field. Legal protection must not become a license to abuse.

This begs the question, when does brand dominance translate into borderline abuse of such a dominant position? This question is keenly answered by looking into Section 4 ^[11] of the Competition Act. Section 4 mandates abuse along a four-limbed parameter, of imposing unfair prices or conditions, of limiting or restricting market access to others, of tying unrelated products and of wrongfully using such dominant position to gain unfair advantages in the market.

To analyse how this would work in real-life contexts, and to better enable an understanding of what is interpreted by the CCI as protection and what as fairplayed dominance, there are certain case laws one can begin to discover.

The most publicised and ardent case that one may encounter on this topic involves one of the world’s largest tech giants and producers that we fondly know as Google. The case ^[12] was brought to the CCI in 2022, and the facts can be presented as follows. The individuals in the case found that Google was abusing its predominant location within the tech market economy, by forcing a mandated pre-installation of some of its applications within its manufactured purchased devices, and restricting manufacturers from developing apps on what is an essentially open-source platform (Android Open Source Project, a.k.a. AOSP) that allows for developers to independently modify their versions of applications. Instead, Google through this pre-installation and foreclosure to other entities to meet a certain minimum standard on Android, was essentially opposing the essence of AOSP in itself.

Google on the one hand, argued that it did not force manufacturers  to sign such agreements, and that they were of an optional nature. It was also provided free of cost. Furthermore, Google argued that competitors’ apps may still be installed, and the purchaser is allowed to disable or uninstall any of the pre-downloaded applications as they wish. Google believed that its agreement ensured uniformity and stability within the Android ecosystem, for far too much development and modification could potentially break compatibility.

The argument on behalf of the petitioners however was, that the Application Programming  Interfaces (API’s) were only functioning on an interaction on the apps mandated in this pre-installation by Google, and that unlike the open-source Android ecosystem, this system suite by Google was proprietary and close-sourced. Others had to negotiate a license to its usage. This was highly problematic as not only did it prevent the developers from producing their own softwares within their applications, but also limited end consumer choices of applications and their respective services. A compelling argument was that the Google suite was useful in boosting ad revenues and the promotion of YouTube as an application (also an entity under Google), thereby boosting their overall “winner-takes-all” position.

Ultimately, when the CCI evaluated this case, they were quick to conclude that Google was in clear violation of its policies. Restricting innovation and foreclosing rivals was problematic and wrongful not just legally, but also ethically, involving a lack of consumer-choice, diversity and stronger lock-in to Google services unwillingly. They held them in violation of Section 4 of the Competition Act – of reducing technical development and of denying market access to competitors – and ordered Google to remove their agreement, allow free open-source development and remove penalties.

Another tangential judgement was in another case of a tech giant we all know and love – Apple. In 2021, the CCI encountered a case ^[13] wherein Apple was forcing its app developers to use its proprietary in-app purchasing software, and also extracting a hefty 30% commission of all these digital transactions. Restriction of alternative payment systems being made available and its monopolisation of distribution through the App Store ultimately led to the culmination of this case before the CCI, brought forth by a non-profit consumer advocacy forum that operated out of Rajasthan.

The CCI once again imposed its penalty under Section 4, and agreed with the petitioning Society on the grounds that restriction of choices of alternative modes of payment was detrimental to consumers, and the commission rules to the developers and their innovations. These policies instituted by Apple could potentially lead to increased costs being borne by developers, which will in the long-run impact competition and hurt fairplay and increased innovations in software. The CCI mandated a detailed investigation to be undertaken to determine the same as whether the same amounted to dominance, which revealed that there were lapses and policies that pointed in favour of the latter’s dominant position and its abuse. While remedial orders are still being reviewed, a final outcome is still pending.

This judgement is particularly landmark as the first major antitrust suit instituted against the tech giant. It mirrors probes conducted by larger regulatory bodies on a global level, reflecting India’s commitment to the Act and its aim, and its growing scrutiny of practices employed by app ecosystems.

This key theme is raised once again in a case ^[14] revolving around Airtel and Jio — India’s largest telecom service providers. The latter at the time was a new market entrant and had introduced schemes wherein zero-pricing and heavy discounting was undertaken. The CCI dismissed Airtel’s claims for thai behaviour being predatory, explaining that consolidating market share as a new entrant to disrupt the consumer base was not entirely abusive, more strategic. This judgement proved to be key in Jio’s favour, who soon accelerated to a household name in the sector.

Conclusion

An overarching theme in all these judgments that one can easily locate are that leveraging one’s dominant position to bundle-up or lock-in consumers with their service is clearly opposed to the ethics of competition as enshrined in the Act. Similarly, determining market dominance is not through a set test of mere foreclosure or discounting — the Commission delves deeper into market share and structural analyses to determine whether the method is one of domination or of mere consolidation in their entry to the market. The translation of dominance into systemic control is what the Act aims to combat, making continuous and healthy regulatory oversight crucial and protective.

The CCI’s role is most vibrantly tested as against when legal or structural protections (accorded to Intellectual Property or government-granted advantages) begin to interact with the sphere of market forces. These protections are key, but also create loopholes wherein regulatory oversight becomes essential to prevent the imposition of unfair terms on both consumers and competitors.

Serving as a regulatory counterweight, the CCI — despite drawbacks that most regulatory bodies suffer from — is keen in taking a highly proactive stance taken towards the evolving and complex market scenario in India. Traditional metrics such as price may not always offer the whole picture of dominance within ecosystems, making the need of Indian regulators adopting such global best practices crucial – ensuring market success is distinct from market abuse.

Author: Yashvardhan Dixit, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD. 

Bibliography:

Statutes:

Consumer Protection Act 1986 (India), Act No 68 of 1986.

Essential Commodities Act 1955 (India), Act No 10 of 1955.

Information Technology Act 2000 (India), Act No 21 of 2000.

Marrakesh Agreement Establishing the World Trade Organization, 1867 UNTS 3 (entered into force 1 January 1995).

Monopolies and Restrictive Trade Practices Act 1969 (India), Act No 54 of 1969.

The Competition Act 2002 (India), Act No 12 of 2003.

Trade Marks Act 1999 (India), Act No 47 of 1999.

Case Law:

Bharti Airtel Ltd v Reliance Jio Infocomm Ltd & Ors, Case No. 3 of 2017, Competition Commission of India (9 June 2017).

Together We Fight Society v Apple Inc, Case No 19 of 2021, Competition Commission of India.Umar Javeed, Sukarma Thapar and Aaqib Javeed v Google LLC and Google India Pvt Ltd, Case No 39 of 2018, Competition Commission of India, Order dated 20 October 2022.

Secondary Sources (Web-Based PDF’s and Journals):

Competition Commission of India, CCI Basic Introduction (PDF, n.d.) <http://164.100.58.95/sites/default/files/advocacy_booklet_document/CCI%20Basic%20Introduction_0.pdf> accessed 9 July 2025.

Rajan S, ‘Monopolies in Indian Economy: Reasons for Shift from MRTP to Competition Act’ (2012) 1(2) International Journal of Multidisciplinary Educational Research https://ijmer.in/pdf/volume1-issue2-2012/531-538.pdf accessed 9 July 2025.

^[1] Competition Commission of India, CCI Basic Introduction (PDF, n.d.) <http://164.100.58.95/sites/default/files/advocacy_booklet_document/CCI%20Basic%20Introduction_0.pdf> accessed 9 July 2025.

^[2] Monopolies and Restrictive Trade Practices Act 1969 (India), Act No 54 of 1969.

^[3] Sangya Rajan, ‘Monopolies in Indian Economy: Reasons for Shift from Mrtp to Competition Act’ (2012) 1 (2) International jOurnal of Multidisciplinary Educational Research <https://ijmer.in/pdf/volume1-issue2-2012/531-538.pdf> accessed 9 July 2025.

^[4] The Competition Act 2002 (India), Act No 12 of 2003.

^[5] Monopolies and Restrictive Trade Practices Act 1969 (India), s 7.

^[6] Consumer Protection Act 2019 (India), Act No 35 of 2019.

^[7] Essential Commodities Act 1955 (India), Act No 10 of 1955.

^[8] Trade Marks Act 1999 (India), Act No 47 of 1999.

^[9] Information Technology Act 2000 (India), Act No 21 of 2000.

^[10] Marrakesh Agreement Establishing the World Trade Organization, 1867 UNTS 3 (entered into force 1 January 1995).

^[11] Competition Act 2002 (India), s 4.

^[12] Umar Javeed, Sukarma Thapar and Aaqib Javeed v Google LLC and Google India Pvt Ltd, Case No 39 of 2018, Competition Commission of India, Order dated 20 October 2022.

^[13] Together We Fight Society v Apple Inc, Case No 19 of 2021, Competition Commission of India (filed 2021).

^[14] Bharti Airtel Ltd v Reliance Jio Infocomm Ltd & Ors, Case No. 3 of 2017, Competition Commission of India. Order dated 9 June 2017.