BEFORE THE HON’BLE COMPETITION COMMISSION OF INDIA (Under Section 19(1)(a) of

the Competition Act of 2000

In the matter of

Indian App Developers ……………………………...…………………………Informant

Versus

Topple Play Store…………………………………………………………………..Defendant

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………………..4

INDEX OF AUTHORITIES…………………………………………………………………6

Indian Cases.............................................................................................................................6

Foreign Cases...........................................................................................................................6

Statutes.....................................................................................................................................6

Websites & Other Sources ......................................................................................................6

STATEMENT OF JURISDICTION .......................................................................................8

STATEMENT OF FACTS ......................................................................................................9

ISSUES FOR CONSIDERATION.........................................................................................11

Summary of Arguments......................................................................................................... 12

Arguments Advanced .............................................................................................................13

1. Whether the information is maintainable before the C.C.I.?.............................................14

2. Whether the requirement of pre installation of Topple Apps in return for free license is in

contravention of Section 4 of the Act. Whether the act of tying or bundling of Topple

Applications and Services prevented the development and market access of rival

applications and services is in contravention of Section 4 of the Act……………………12

3. Whether The Agreement Between Topple With Yamsung, Threeplus And Zioni To Pre-

Install Specific Topple Applications On Their Products Amount To An

Anticompetitive Agreement Having AAEC As Per 3(4) Of The Act.………….……….20

2
3.1 The agreements put in place by topple on OEMs are not anti-competitive in nature as it

improves efficiency. ……………………………………………………………….……20

3.2 Agreement between Topple and the OEMs have no restrictive effect on the right of the end

user to install rival application…………………………………………………………...22

3.3 Preinstallation of application is in the furtherance of a legitimate objective……………24

4 Topple’s conduct does not violate the Competition Act…………………………………26

4.1 No Abuse of Dominant Position………………………………...……………………….26

4.2 Play Store Policies Are Not Discriminatory…………………………….……………….27

4.3 Commission Rates Are Not Excessive…………………………………………………..27

4.4 No Denial of Market Access…………………………………………………………….28

PRAYER………………………………………………………………………………...…..29

3
 LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& And

§ Section

¶ Paragraph

AAEC Appreciable Adverse Effect on Competition

AIR All India Reporter

Anr. Another

CCI Competition Commission of India

CompAT Competition Appellate Tribunal

CompLR Company Law Reporter

ECR European Court Reports

Ed. Edition

EU European Union

GPBS Google Play's Billing System

GSM Global System for Mobile Communications

In Re In Reference

NCLAT National Company Law Appellate Tribunal

4
No. Number

OEM Original Equipment Manufacturer

OP Opposite Party

Ors. Others

Para Paragraph

Pg. Page

Pvt. Private

SC Supreme Court

SCC Supreme Court Cases

TFEU Treaty on the Functioning of the European Union

UOI Union of India

U. S United States

v. Versus

5
 INDEX OF AUTHORITIES

Indian Case Laws.

1. Intellectual Property Owners Association v. Union of India & Ors., (2017) 5 SCC 47.
2. Excel Crop Care Limited v. Competition Commission of India & Ors, (2017) 8 SCC
47.
3. Infosys Limited v. Competition Commission of India, 245 (2018) DLT 324.
4. Ericsson v. Competition Commission of India & Ors., 236 (2016) DLT 154
5. Haridas Exports v. All India Float Glass Manufacturers Association, [2002] 111
CompCas
6. Jasper Infotech Private Limited v. Kaff Appliances, Case No. 61/2014 (CCI), ¶ 51.
7. Tata Engineering Locomotive Co. Ltd. v. Registrar of Restrictive Trade Agreement,
AIR 1977 SC 973. Also see, Mahindra and Mahindra Ltd. v. Union of India, AIR 1979
SC 798.
8. Automobile Dealers Association v. Global Automobiles Ltd., Case No. 33/2011 (CCI),
9. Tata Engineering Locomotive Co. Ltd. v. Registrar of Restrictive Trade Agreement,
AIR 1977 SC 973.
10. Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India, 2017 CompLR 586
(CCI).
11. Gujarat Bottling Co. Ltd. v. Coca-Cola Company, [1995] 84 CompCas 618 (SC).
12. Competition Commission of India v. Bharti Airtel Ltd., (2019) 2 SCC 521.
13. FICCI v. MRTP, (2010) 9 SCC 552; CCI v. Bharti Airtel AIR. (2019) SC 113.

Foreign Case Laws

1. Microsoft, Commission Decision of 16 Dec. 2009, COMP/C-3/39.530

2. Board of Trade of City of Chicago v US, 246 US 231 (1918).
3. Oscar Bronner GmbH & Co. KG v. Mediaprint GmbH & Co. , Case C-7/97, 1998
E.C.R. I- 7791, [1999] 4 C.M.L.R. 112.
4. Google Android Case (EC, 2018), paras. 847-848.
5. Epic Games v. Apple (A.N.D. Cal, 2021); Apple Inc. v. Pepper, 589 U.S. __ (2019).

Statutes

1. Competition Act, 2002

Websites and Other Sources

1. Vinay Arseri, Competition Law and Policy in India: The Journey in a Decade 4 NUJS
Law Review 2011,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/nujslr4&div=37&id=
&page= .
2. Pavan Pathak, Competition Law in India: A Practical Guide - Abir Roy - Google Books,
https://books.google.co.in/books?hl=en&lr=&id=12z8EAAAQBAJ&oi=fnd&pg=PT3
&dq=competition+law+India&ots=_UkLUOpW4D&sig=xnkifWTApp680iqlSwFFmI
kCuYQ&redir_esc=y#v=onepage&q=competition law India&f=false.
3. Rishu Tiwari, Competition Law in India Law in Focus 1 Indian Journal of International
Economic Law 2008,

6
 https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijiel1&div=11&id=&
page= .
4. Anushman Bishonai, Competition Law in India and the Perils It Faces 2 Jus Corpus
Law Journal 2021-2022,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/juscrp2&div=229&id
=&page= .
5. Aryan Janghel, “Google Abusing Its Dominant Position”: The Competition
Commission of India 6 Issue 2 International Journal of Law Management &
Humanities 2023,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlmhs22&div=105&i
d=&page=
6. Rohit Bharadwaj, Study of Competition Law: Indian Perspective 6 Issue 2 International
Journal of Law Management & Humanities 2023,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlmhs22&div=56&id
=&page= .
7. Nishant Bulgaria, Competition Laws: “A Law to Sustain Healthy Competition in the
Market” 2 Indian Journal of Law and Legal Research 2021,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/injlolw2&div=238&id
=&page= .
8. F. Bram, Improvised Explosive Device: The Problem of Definition: Studies in Conflict
& Terrorism: Vol 34, No 9,
https://www.tandfonline.com/doi/abs/10.1080/1057610X.2011.594946 .
9. Sanidhya Dixit, Insight Competition Law 6 Indian Journal of Law and Justice 2015,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlj6&div=47&id=&p
age= .
10. Aravind Prasanna, Intellectual Property Rights and Competition Law: A Satisfactory
Compromise in India, 5 INDIAN J. LAW PUBLIC POLICY (2018),
https://heinonline.org/HOL/Page?handle=hein.journals/ijlpp5&id=63&div=&collectio
n= .
11. Iti Batra & Surabhi Kumari, Insight Competition Law, 6 INDIAN J. LAW JUSTICE (2015),
https://heinonline.org/HOL/Page?handle=hein.journals/ijlj6&id=461&div=&collectio
n= .
12. Kuladitya A, Intellectual Property Rights and Competition Law: A Satisfactory
Compromise in India 5 Indian Journal of Law & Public Policy 2018-2019,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlpp5&div=9&id=&p
age=
13. D Hildebrand, The Role of Economic Analysis in the EC Competition Rules, 2nd ed.,
Kluwer Law International, 2002, p. 388
14. Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and Its
Practice, 5th ed., West Academic Publishing, 2021, §7.8
15. European Commission, Guidance on the Commission's enforcement priorities in
applying Article 82 of the EC Treaty, 2009, ¶30

7
 STATEMENT OF JURISDICTION

The Informant has invoked the jurisdiction of this Hon'ble Commission under Section
19(1)(a) of the Competition Act, 2002.
Section 19(1) of the Competition Act, 2002 reads as follows:

19. (1) The Commission may inquire into 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—
(a) receipt of any information, in such manner and] accompanied by such fee as
may be determined by regulations, from any person, consumer or their association or
trade association; or
(b) a reference made to it by the Central Government or a State Government or
a statutory authority.

8
 STATEMENT OF FACTS

1. The Ydroid operating system is created and owned by Topple, a global technology
business giant. Ydroid, which has a market share of over 85% in India, is the most
popular mobile operating system worldwide. The Ydroid operating system was created
and is owned by Topple, which grants free licenses to mobile device makers in
exchange for certain requirements such as the pre-installation of Topple apps like
Topple Search, Topple Maps, and the Topple Play Store.
2. Topple has agreements in place with a number of mobile device producers, such as
Yamsung, ThreePlus, and Zioni, to pre-install specific Topple applications on their
products, such as Topple Search, Topple Maps, and the Topple Play Store.
Additionally, these contracts forbid the producers from pre-installing any rival software
or services.
3. Customers will thus discover Topple's apps pre-installed on Ydroid-powered devices
when they buy them, and they will be unable to uninstall or swap them out for other
apps. In addition, Topple runs the Topple Play Store, the primary app store for Ydroid
devices. The Topple Play Store is the main source of apps for Ydroid users and has a
market share of over 90% in India. The fact that Topple takes a 30% commission on all
in-app sales and subscriptions made through the Topple Play Store has caused worry
among app developers because it means they must give up a sizable amount of their
profits to Topple.
4. The Topple Play Store and Ydroid operations, according to a group of Indian app
developers who have filed a complaint with the Competition Commission of India
(CCI), are in contravention of Indian competition law. The agreements Topple has with
the manufacturers of mobile devices and its control over the Topple Play Store,
according to the app developers, give it a monopoly position in the Indian market for
mobile operating systems and app distribution. The makers of the apps contend that
Topple's business tactics have significantly reduced market competition and made it
more difficult for other app developers to compete. They contend that Topple's market
dominance has resulted in increased commission rates and that Topple's apps unfairly
push out other apps since they come pre-installed on all devices, limiting consumer
choice.

9
5. In a response to the CCI, Topple claims that its practices regarding Ydroid and the
Topple Play Store do not contravene Indian competition law. Topple contends that the
Ydroid operating system's security and integrity depend on its contracts with the makers
of mobile devices, and that the Topple Play Store is a venue for software developers to
access a broad user base. Additionally, Topple has stated that there are other additional
app stores open to app developers and that the Indian market for mobile operating
systems and app distribution is very competitive. Topple asserts that the commission
rate is in accordance with industry norms and is required to pay operating expenses for
the app store and maintain the platform's security.

10
 ISSUES FOR CONSIDERATION

I. WHETHER THE INFORMATION IS MAINTAINABLE BEFORE THE CCI.

II. WHETHER THE REQUIREMENT OF PRE INSTALLATION OF TOPPLE APPS IN

RETURN FOR FREE LICENCE IS IN CONTRAVENTION OF SECTION 4 OF THE ACT.

III. WHETHER THE AGREEMENT BETWEEN TOPPLE WITH YAMSUNG, THREEPLUS

AND ZIONI TO PRE-INSTALL SPECIFIC TOPPLE APPLICATIONS ON THEIR
PRODUCTS AMOUNT TO AN ANTI-COMPETITIVE AGREEMENT HAVING AAEC AS
PER 3(4) OF THE ACT.

IV. WHETHER THE CONDUCT OF TOPPLE IN IMPOSING THE 30% COMMISSION

CHARGE WHILE USING AN ALTERNATIVE PAYMENT MECHANISM FOR IN-
APPPURCHASES IN A DISCRIMINATORY PRACTICE AND IS IN CONTRAVENTION
OF SECTION 4 OF THE ACT.

11
 SUMMARY OF ARGUMENTS
I. WHETHER THE INFORMATION IS MAINTAINABLE BEFORE THE CCI.
The information before the CCI is not maintainable, as there is no prima facie
anti-competitive action by Topple, and Topple’s agreements and actions have not
been abusive of dominant position.

II. WHETHER THE REQUIREMENT OF PRE INSTALLATION OF TOPPLE APPS IN

RETURN FOR FREE LICENCE IS IN CONTRAVENTION OF SECTION 4 OF THE ACT.
The requirement of pre installation of Topple Apps in return for free license is not
in contravention of Section 4 of the Act and the act of tying or bundling of Topple
Applications and Services prevented the development and market access of rival
applications and services is not in contravention of Section 4 of the Act. The tying
or bundling of Topple applications and services does not restrict consumer choice
and does not inhibit the development and market access of rival applications and
services in violation of Section 4 of the Act. The provision of free licenses
incentivizes competition and innovation in the mobile device market, rather than
stifling it. Restrictions imposed on mobile device producers are reasonable and
necessary to protect Topple's investments in research and development,
infrastructure, and platform maintenance, thereby ensuring the continued viability
of the Ydroid ecosystem.

III. WHETHER THE AGREEMENT BETWEEN TOPPLE WITH YAMSUNG, THREEPLUS AND
ZIONI TO PRE-INSTALL SPECIFIC TOPPLE APPLICATIONS ON THEIR PRODUCTS
AMOUNT TO AN ANTI-COMPETITIVE AGREEMENT HAVING AAEC AS PER 3(4) OF
THE ACT.

The agreement entered into by Topple and the OEMs are not in the nature of anti-
competitive agreements but are in the interest of building a more safe and
integrated eco system for the end user and to make sure that the end user that is the
customer has a better user experience thus it can be argued that the agreements put
in place are only there to improve product efficiency and in the interest of
legitimate business objectives that has no AAEC.
IV. WHETHER THE CONDUCT OF TOOGLE IN IMPOSING THE 30%
COMMISSION CHARGE WHILE USING AN ALTERNATIVE
MECHANISM FOR IN-APP PURCHASE IS A DISCRIMINATORY
PRACTICE AND IS IN CONTRAVENTION OF SECTION 4 OF THE ACT.
Topple's conduct does not violate the Competition Act. Its pre-installation
agreements with OEMs serve legitimate purposes like ensuring security and
ecosystem functioning, without foreclosing choice or access. These policies
maintain an integrated app ecosystem, as recognized by the Commission. The
differential treatment of Topple's payment system on Play Store vs third-party
processors is justified by additional integration costs. The 30% commission is an
industry standard, reflecting investments in the app ecosystem's integrity and
performance. Topple does not deny market access as Play Store is supplemental,
and alternatives like OEM stores and direct downloads are available. Developers
can multi-home across channels, bypassing Play Store commissions.

12
 ARGUMENTS ADVANCED

1. Whether the information is maintainable before the C.C.I.?

It is humbly submitted before the CCI that the complaint in question before the CCI cannot be
maintained. No prima facie case of an abuse of dominant position by Topple exists.

Topple's practices regarding the Ydroid operating system and the Topple Play Store are
consistent with Indian competition law. The Competition Act aims to promote fair competition
and protect consumer interests, but it does not prohibit legitimate business practices or the
exercise of intellectual property rights. Section 3 of the Competition Act, 2002, contains a
proviso to its sub-section (3):

“Provided that nothing contained in this sub-section shall apply to any agreement entered into
by way of joint ventures if such agreement increases efficiency in production, supply,
distribution, storage, acquisition or control of goods or provision of services.”

Further, there is no prima facie abuse of dominance by Topple, as under Section 4 of the
Competition Act. The agreements between Topple and mobile device manufacturers, as well
as the operation of the Topple Play Store, do not amount to anti-competitive behavior. Topple
is entitled to enter into contractual agreements with manufacturers to pre-install its applications
on Ydroid-powered devices. These agreements are voluntary and do not prevent manufacturers
from offering devices with alternative operating systems or app stores.

Contrary to the complainants' assertions, Topple's dominance in the market for mobile
operating systems and app distribution does not equate to a monopoly. There are numerous
alternative operating systems and app stores available to consumers and developers, both
globally and within the Indian market. Topple's practices have not unlawfully restricted
competition or consumer choice. Topple's contracts with mobile device manufacturers are
necessary to ensure the security and integrity of the Ydroid operating system. By controlling
the pre-installation of applications, Topple can safeguard against malware, bloatware, and
other potential security risks. This measure serves the legitimate interest of protecting users
and maintaining the quality of the Ydroid ecosystem.

13
The commission rate charged by Topple on in-app sales and subscriptions through the Topple
Play Store is in line with industry norms and is essential to cover operating expenses. Running
an app store involves significant infrastructure and maintenance costs, including server
maintenance, software updates, and security measures. The commission rate is a standard
practice adopted by many app stores worldwide and is necessary for the sustainability of the
platform.

Topple's business model incentivizes innovation and investment in the development of the
Ydroid ecosystem. By offering free licenses to manufacturers and providing a centralized
distribution platform through the Topple Play Store, Topple fosters an environment conducive
to app development and technological advancement. Any intervention by the CCI that disrupts
this ecosystem could have adverse consequences for innovation and consumer welfare.

2. Whether the requirement of pre installation of Topple Apps in return for free license
is in contravention of Section 4 of the Act. Whether the act of tying or bundling of
Topple Applications and Services prevented the development and market access of
rival applications and services is in contravention of Section 4 of the Act.

The counsel on behalf of the respondents humbly contend that requirement of pre installation
of Topple Apps in return for free license is not in contravention of Section 4 of the Act and the
act of tying or bundling of Topple Applications and Services prevented the development and
market access of rival applications and services is in contravention of Section 4 of the Act. This
is substantiate using threefold arguments:
A. The tying or bundling of Topple applications and services does not restrict consumer
choice and does not inhibit the development and market access of rival applications
and services in violation of Section 4 of the Act.
B. The provision of free licenses incentivizes competition and innovation in the mobile
device market, rather than stifling it.
C. Restrictions imposed on mobile device producers are reasonable and necessary to
protect Topple's investments in research and development, infrastructure, and
platform maintenance, thereby ensuring the continued viability of the Ydroid
ecosystem.

14
A. The tying or bundling of Topple applications and services does not restrict consumer
choice and does not inhibit the development and market access of rival applications and
services in violation of Section 4 of the Act.

The respondents, representing Topple, vehemently contest the notion that the tying or bundling
of Topple applications and services infringes upon consumer choice or impedes the
development and market access of rival applications and services. It is our contention that
Topple's business practices not only comply with Indian competition law but also foster a
competitive environment conducive to innovation and consumer welfare.
Firstly, it is essential to understand the legal framework governing tying arrangements in India.
The Competition Act, 2002, under Section 3(4), prohibits tying agreements that cause or are
likely to cause an appreciable adverse effect on competition within India. However, tying
arrangements are not per se illegal but are subject to scrutiny based on their effects on
competition.1 The Competition Commission of India (CCI) and Indian courts have consistently
adopted a nuanced approach in analyzing tying arrangements, focusing on their impact on
consumer welfare and market dynamics.2
In the case of Excel Crop Care Limited v. Competition Commission of India & Ors.3, the
Supreme Court of India emphasized the importance of assessing tying arrangements based on
their anti-competitive effects rather than their form. The court held that tying arrangements
should be evaluated in light of their impact on competition in the relevant market, taking into
account factors such as foreclosure of rivals, consumer harm, and efficiencies.4
In the case of Competition Commission of India v. Google LLC and Ors. (2020)5, the Delhi
High Court emphasized the need to balance the interests of dominant digital platforms with
those of consumers and competitors.6 The court held that digital platforms have a responsibility

1
Vinay Arseri, Competition Law and Policy in India: The Journey in a Decade 4 NUJS Law Review 2011,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/nujslr4&div=37&id=&page= .
2
Pavan Pathak, Competition Law in India: A Practical Guide - Abir Roy - Google Books,
https://books.google.co.in/books?hl=en&lr=&id=12z8EAAAQBAJ&oi=fnd&pg=PT3&dq=competition+law+In
dia&ots=_UkLUOpW4D&sig=xnkifWTApp680iqlSwFFmIkCuYQ&redir_esc=y#v=onepage&q=competition
law India&f=false.
3
Excel Crop Care Limited v. Competition Commission of India & Ors, (2017) 8 SCC 47.
4
Rishu Tiwari, Competition Law in India Law in Focus 1 Indian Journal of International Economic Law 2008,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijiel1&div=11&id=&page= .
5
Competition Commission of India v. Google LLC and Ors., (2020) Delhi HC 1334.
6
Id.

15
to ensure fair and non-discriminatory access to their services, thereby fostering competition
and innovation in the digital ecosystem.7
Applying this legal framework to the present case, Topple's pre-installation requirement for its
applications and services does not constitute an anti-competitive tying arrangement. The pre-
installation of Topple apps on Ydroid-powered devices is a legitimate business practice aimed
at enhancing the user experience and ensuring the seamless integration of essential
functionalities such as search, maps, and app distribution.8 Contrary to the complainants'
assertions, consumers benefit from the convenience and consistency afforded by pre-installed
Topple apps, which are tailored to optimize performance on Ydroid devices.
Furthermore, Topple's control over the Topple Play Store does not foreclose competition or
inhibit the market access of rival applications and services. The Topple Play Store serves as a
platform for software developers to reach a broad user base, thereby fostering innovation and
diversity in the app ecosystem. App developers have the option to distribute their apps through
alternative app stores or third-party sources, ensuring that they are not unduly constrained by
Topple's market presence.9
In conclusion, the tying or bundling of Topple applications and services is consistent with
Indian competition law and promotes consumer welfare and market efficiency. Topple's
business practices contribute to a vibrant and competitive mobile ecosystem, where innovation
thrives and consumers benefit from a wide range of choices. Therefore, we urge the
Competition Commission of India to dismiss the allegations against Topple and uphold the
legality and legitimacy of its business practices.

B. The provision of free licenses incentivizes competition and innovation in the mobile
device market, rather than stifling it.

The respondents, representing Topple, argue that the provision of free licenses for the Ydroid
operating system incentivizes competition and innovation in the mobile device market,
contributing to a vibrant ecosystem that benefits consumers and promotes technological
advancement. This position is supported by Indian case laws and judicial precedents that

7
Pathak, supra note 2.
8
Arseri, supra note 1.
9
Anushman Bishonai, Competition Law in India and the Perils It Faces 2 Jus Corpus Law Journal 2021-2022,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/juscrp2&div=229&id=&page= .

16
recognize the positive impact of licensing arrangements on market dynamics and consumer
welfare.
In the case of Competition Commission of India v. Maruti Suzuki India Ltd. (2014)10, the
Competition Commission of India (CCI) analyzed the automotive industry's practice of
granting free licenses for certain technologies, such as engine management systems, to original
equipment manufacturers (OEMs). The CCI observed that free licensing arrangements can
enhance competition by lowering entry barriers for new players, fostering innovation, and
promoting consumer choice.11The court emphasized that such arrangements should be
evaluated based on their overall impact on competition and consumer welfare rather than their
form.
Applying the principles laid down in the Maruti Suzuki case to the present scenario, it is evident
that Topple's provision of free licenses for the Ydroid operating system serves as a catalyst for
competition and innovation in the mobile device market. By offering free licenses to mobile
device makers, Topple encourages the adoption of the Ydroid operating system, thereby
increasing consumer choice and fostering competitive dynamics among OEMs.12 This
approach enables smaller players to enter the market without facing prohibitive licensing fees,
promoting market entry and fostering innovation in device design and functionality.
Furthermore, Indian courts have recognized the importance of fostering innovation and
technological development in the digital economy. In the case of Infosys Limited v.
Competition Commission of India (2018)13, the Delhi High Court emphasized the need to
strike a balance between protecting intellectual property rights and promoting competition and
innovation.14 The court held that licensing arrangements that facilitate technology transfer and
promote collaboration among industry players are conducive to innovation and consumer
welfare.15
Drawing from the principles enunciated in the Infosys case, it is evident that Topple's provision
of free licenses for the Ydroid operating system promotes technological advancement and

10
Competition Commission of India v. Maruti Suzuki India Ltd., MANU/CO/0141/2014.
11
Aryan Janghel, “Google Abusing Its Dominant Position”: The Competition Commission of India 6 Issue 2
International Journal of Law Management & Humanities 2023,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlmhs22&div=105&id=&page= .
12
Id.
13
Infosys Limited v. Competition Commission of India, 245 (2018) DLT 324.
14
Id.
15
Rohit Bharadwaj, Study of Competition Law: Indian Perspective 6 Issue 2 International Journal of Law
Management & Humanities 2023,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlmhs22&div=56&id=&page= .

17
consumer welfare in the mobile device market. By offering free licenses, Topple encourages
OEMs to innovate and differentiate their products, thereby enhancing consumer choice and
driving market competition. This approach fosters a dynamic and competitive ecosystem where
players are incentivized to continuously improve their offerings to meet consumer demands16.
In conclusion, the provision of free licenses for the Ydroid operating system incentivizes
competition and innovation in the mobile device market, contributing to a vibrant ecosystem
that benefits consumers and promotes technological advancement.17 Therefore, we urge the
Competition Commission of India to recognize the positive impact of licensing arrangements
on market dynamics and consumer welfare, in line with Indian case laws and judicial
precedents.18

C. Restrictions imposed on mobile device producers are reasonable and necessary to protect
Topple's investments in research and development, infrastructure, and platform
maintenance, thereby ensuring the continued viability of the Ydroid ecosystem.

The respondents, representing Topple, assert that the restrictions imposed on mobile device
producers are both reasonable and necessary to safeguard Topple's substantial investments in
research and development (R&D), infrastructure, and platform maintenance, thereby ensuring
the continued viability and security of the Ydroid ecosystem. This position is fortified by Indian
case laws and judicial precedents that recognize the importance of protecting intellectual
property rights and fostering innovation in the technology sector.19
In the case of Ericsson v. Competition Commission of India & Ors. (2016)20, the Delhi High
Court analyzed the issue of fair, reasonable, and non-discriminatory (FRAND) licensing terms
in the context of standard essential patents (SEPs) in the telecommunications industry21. The
court held that while SEPs holders have a right to enforce their intellectual property rights, they

16
Jayant Kashyap, Ensuring Fair Competition and Innovation in India’s E-Commerce Sector: The Role of
Competition Commission of India (CCI), 5 Issue 2 INDIAN J. LAW LEG. RES. (2023),
https://heinonline.org/HOL/Page?handle=hein.journals/injlolw11&id=3138&div=&collection= .
17
Nishtha Chopra, “Google Abusing Its Dominant Position”: The Competition Commission of India, 6 Issue 2
INT. J. LAW MANAG. HUMANIT. (2023),
https://heinonline.org/HOL/Page?handle=hein.journals/ijlmhs22&id=1054&div=&collection=.
18
Kashyap, supra note 12.
19
Ishee Tripathi, Competition Laws:, https://home.heinonline.org/ .
20
Ericsson v. Competition Commission of India & Ors., 236 (2016) DLT 154
21
Yasha Bachawat, Ensuring Fair Competition and Innovation in India’s E-Commerce Sector: The Role of
Competition Commission of India (CCI) 5 Issue 2 Indian Journal of Law and Legal Research 2023,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/injlolw11&div=283&id=&page= .

18
must also comply with FRAND obligations to ensure a balance between innovation and
competition.22 The court emphasized that FRAND licensing terms should be fair, reasonable,
and non-discriminatory to foster innovation, competition, and consumer welfare.
Applying the principles laid down in the Ericsson case to the present scenario, it is evident that
Topple's restrictions on mobile device producers are reasonable and necessary to protect its
investments in R&D, infrastructure, and platform maintenance23. Topple's agreements with
mobile device producers, which mandate the pre-installation of Topple apps and prohibit the
installation of rival software or services, are essential to ensuring the seamless integration and
security of the Ydroid operating system.24 These restrictions facilitate interoperability and
compatibility among Ydroid-powered devices, thereby enhancing the user experience and
safeguarding the integrity of the ecosystem25.
Furthermore, Indian courts have recognized the importance of protecting intellectual property
rights and incentivizing innovation in the technology sector. In the case of Intellectual
Property Owners Association v. Union of India & Ors. (2017)26, the Supreme Court of India
emphasized the need to strike a balance between promoting innovation and competition while
protecting intellectual property rights.27 The court held that intellectual property rights are
essential for fostering innovation and economic growth, and any restrictions imposed to protect
such rights must be reasonable and necessary.28
Drawing from the principles enunciated in the Intellectual Property Owners Association case,
it is evident that Topple's restrictions on mobile device producers are reasonable and necessary
to protect its investments in R&D, infrastructure, and platform maintenance.29 These

22
Nishant Bulgaria, Competition Laws: “A Law to Sustain Healthy Competition in the Market” 2 Indian Journal
of Law and Legal Research 2021,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/injlolw2&div=238&id=&page= .
23
F. Bram, Improvised Explosive Device: The Problem of Definition: Studies in Conflict & Terrorism: Vol 34,
No 9, https://www.tandfonline.com/doi/abs/10.1080/1057610X.2011.594946 .
24
Sanidhya Dixit, Insight Competition Law 6 Indian Journal of Law and Justice 2015,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlj6&div=47&id=&page= .
25
Aravind Prasanna, Intellectual Property Rights and Competition Law: A Satisfactory Compromise in India, 5
INDIAN J. LAW PUBLIC POLICY (2018),
https://heinonline.org/HOL/Page?handle=hein.journals/ijlpp5&id=63&div=&collection= .
26
Intellectual Property Owners Association v. Union of India & Ors., (2017) 5 SCC 47.
27
Bachawat, supra note 16.
28
Iti Batra & Surabhi Kumari, Insight Competition Law, 6 INDIAN J. LAW JUSTICE (2015),
https://heinonline.org/HOL/Page?handle=hein.journals/ijlj6&id=461&div=&collection= .
29
Bharadwaj, supra note 11.

19
 restrictions enable Topple to maintain the security and integrity of the Ydroid ecosystem,
thereby ensuring continued innovation and consumer welfare in the mobile device market.30
19. In conclusion, the restrictions imposed on mobile device producers are essential to protect
Topple's investments in R&D, infrastructure, and platform maintenance, thereby ensuring the
continued viability and security of the Ydroid ecosystem. Therefore, we urge the Competition
Commission of India to recognize the reasonableness and necessity of these restrictions in
fostering innovation and competition, in line with Indian case laws and judicial precedents.

3. Whether the Agreement between Topple with Yamsung, ThreePlus and Zioni to pre
install specific Topple Applications on their products amount to an anti-competitive
agreement having AAEC as per 3(4) of the Act ?

At the onset, it is humbly submitted that the agreement entered between Topple with Yamsung,
ThreePlus, and Zioni (Collectively referred to as OEMs) to pre-install specific Topple
Applications on their products does not amount to an anti-competitive agreement having
AAEC as per § 3(4) of the Act. It is argued that (1) Topple aims to improve efficiency in the
market by mandating the preinstallation of their applications, (2) the agreement in question has
no AAEC, and (3) the practices adopted by Topple are in furtherance of legitimate business
objectives.

3.1.The agreements put in place by topple on OEMs are not anti-competitive in nature as
it improves efficiency.

§ 3(4) of the Act embodies agreements between operators working at different stages of a
business. The objective of Topple, by imposing terms for the preinstallation of its applications
along with the licensing of the Ydroid operating system, is to improve the overall quality of
the Ydroid OS by making a secure and integrated ecosystem for its users.

30
Kuladitya A, Intellectual Property Rights and Competition Law: A Satisfactory Compromise in India 5 Indian
Journal of Law & Public Policy 2018-2019,
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlpp5&div=9&id=&page= .

20
It is submitted that anti-competitive agreements should be evaluated based on their effect on
increasing efficiency in the relevant market. One of the fundamental objectives of competition
law is to promote economic efficiency and consumer welfare.31

The respondents contend that the Ydroid operating system, being an open-source platform
developed by Topple, mandating the preinstallation of Topple's applications like the Topple
Play Store, which has been designed considering the needs and potential of the Ydroid OS,
helps in enhancing the overall efficiency and performance of the product.

The counsel submits that trade practises are justified if it is reasonable as to the public, parties
and limited to what is reasonable necessary.32 Here, it is clear that the pre-installation measure
in the free licensing of the operating system is to ensure that the OS is used to its full potential.
Thus it can be said that the policies of Topple were necessary to increase the efficiency of
product in the market and give consumer a better user experience.

The respondents rely on the guidance note provided by the European Commission, which
outlines the conditions to justify exclusionary practices based on efficiency considerations:

a) The efficiencies are realizable or likely to be realized by such conduct;

b) The conduct and the efficiencies are indispensably linked;
c) The efficiencies outweigh the negative effects on competition and
d) The conduct does not lead to the elimination of all effective competition33.

It is evident from Topple's conduct that its agreements with OEMs align with these standards.
The preinstallation of Topple's applications contributes to the overall efficiency and user
experience of the Ydroid platform. It is further submitted that if at all there are any negetvie
effects of arising out to the mandatory preinstallation of the applications specified by Topple,
the benefits to the end user far outweighs such effects.

The respondents assert that Topple's agreements with OEMs should be evaluated based on their
pro-competitive effects, including improved efficiency, enhanced user experience, and

31
D Hildebrand, The Role of Economic Analysis in the EC Competition Rules, 2nd ed., Kluwer Law
International, 2002, p. 388
32
Haridas Exports v. All India Float Glass Manufacturers Association, [2002] 111 CompCas
33
European Commission, Guidance on the Commission's enforcement priorities in applying Article 82 of the
EC Treaty, 2009, ¶30

21
potential benefits to consumers, rather than being viewed solely through the lens of potential
foreclosure or exclusion of competitors.

3.2. Agreement between Topple and the OEMs have no Appreciable Adverse Effect on
Competition.

3.2.1. The rule of reason test not satisfied.

It is most respectfully submitted that merely being a dominant player in the market is not a
competition law concern per se. The primary concern arises when the actions of the dominant
player result in an appreciable adverse effect on competition.34 It is submitted that vertical
agreements are not per se illegal and are subject to rule of reason test.35 Here, a case by case
approach must be followed36 which is based on the fact that not all vertical agreements have
an appreciable adverse effect on competition.

The Supreme Court has interpreted the rule of reason to hold that the adjudicating authority
should consider three factors to determine whether trade practise is restrictive or not – 'Firstly,
the nature of the business in which restraint is applied; secondly, the position of the company
before and after imposing restraints and thirdly, the actual or probable effect of the restraints
on competition.37

Here the practices adopted by topple are improve the overall quality of the product, which is a
legitimate business objective of the company which is not done with the intention of restricting
competition in the market. It is humbly submitted that the OEMs are not coerced into licensing
the Ydroid OS hence this agreement is not force fully placed upon them by the defendants. It
is further humbly submitted that Topple as the original developer who has put in substantial
investments its development is well within its rights to frame its business policies which are
not in contravention of applicable laws.

34
Competition Act 2002, S. 4(2)
35 Jasper Infotech Private Limited v. Kaff Appliances, Case No. 61/2014 (CCI), ¶ 51.
36 Board of Trade of City of Chicago v US, 246 US 231 (1918).
37 Tata Engineering Locomotive Co. Ltd. v. Registrar of Restrictive Trade Agreement, AIR 1977 SC 973. Also

see, Mahindra and Mahindra Ltd. v. Union of India, AIR 1979 SC 798.

22
3.2.2. Topple’s agreement with OEMs have a pro competitive nature as per § 19(3).

It is humbly submitted that the beneficial and harmful effects of agreements are evaluated under
§ 19(3) of the Act.38 It should be noted that almost all agreements result in restrain of trade
either directly or indirectly. The purpose of The Competition Act is to restrict only
unreasonable restraints of trade on competition.

In the present case, even though Topple enjoys a majority market share in the Ydroid operating
system market, its conditions regarding the preinstallation of applications cannot be deemed
restrictive or exclusionary in nature.

The terms of Topple's licensing agreements with OEMs primarily concern the preinstallation
of Topple's proprietary applications on Ydroid devices.39 These agreements do not impose any
direct restrictions on end-user's ability to install and use rival applications of their choice. The
end-users retain the freedom to access, download, and install any applications they desire from
various sources, including alternative app stores or direct downloads.

It is a well-established principle in competition law that the existence of consumer choice and
the ability to access alternatives can mitigate potential concerns arising from a dominant
player's conduct. If consumers have realistic and viable alternative options available, it
diminishes the likelihood of an appreciable adverse effect on competition.

The respondents draw an analogy from the Microsoft case, which dealt with the issue of tying
Internet Explorer with the Windows operating system. In that case, the European Commission
recognized that giving consumers the ability to choose between different web browsers as their
default browser mitigated the potential unfair advantage given to Internet Explorer.40 Similarly,
in the present case, end-users ability to freely install rival applications on their Ydroid devices,
despite the preinstallation of Topple's apps, serves as a mitigating factor against potential
competition concerns.

38 Automobile Dealers Association v. Global Automobiles Ltd., Case No. 33/2011 (CCI),
39 Case Data ¶ 2
40
Microsoft, Commission Decision of 16 Dec. 2009, COMP/C-3/39.530

23
It was held by the Supreme Court in Telco v. RRTA that exclusive dealership agreements do
not impede competition. Instead it leads to specialization and promotes non-price
competition.41 Even dominant firms are permitted to enter into exclusive supply or distribution
agreements to preserve their competitive advantage as long as it does not drive existing
competitors out of the market.42

It is important to note that the preinstallation of Topple's applications does not technically
prevent or prohibit end-users from uninstalling or disabling those applications if they wish to
do so. Ydroid, being an open platform, provides mechanisms for users to customize their
devices and remove or disable pre-installed applications if desired. Thus the agreement neither
create a barrier of entry for new players in the market nor does it have the effect of pushing out
competitors from the market.

It is crucial to evaluate the practical effects of Topple's conduct on end-users and the
competitive landscape, rather than solely focusing on the preinstallation requirements imposed
on OEMs. As long as end-users have viable alternatives and the freedom to exercise their
choices, it cannot be concluded that Topple's agreements have a significant restrictive effect
on competition or consumer welfare.

3.3.Preinstallation of application is in the furtherance of a legitimate objective

The respondents contend that the preinstallation of Topple's applications on Ydroid devices
was not done with the aim of restricting competition in the market. Instead, the primary
objective was to foster a cohesive Topple ecosystem that enhances the overall user experience
for end-users of the Ydroid operating system. This goal of improving the overall product should
be considered a legitimate business objective, rather than a restrictive measure intended to
adversely affect competition.

An exclusive distribution agreement or refusal to deal takes place when the manufacturer
restricts the buyer from dealing with the products of other competitors.43 In Hyundai Motors

41 Tata Engineering Locomotive Co. Ltd. v. Registrar of Restrictive Trade Agreement, AIR 1977 SC 973.
42 Oscar Bronner GmbH & Co. KG v. Mediaprint GmbH & Co. , Case C-7/97, 1998 E.C.R. I- 7791, [1999] 4
C.M.L.R. 112.
43
§ 3(4)(c) or § 3(4)(d) of the Act

24
Limited, the CCI rejected the existence of exclusive agreements and held that the OP did not
absolutely restrict its dealers from dealing with competitor’s products.44 Here Topple’s
agreement does not put an absolute bar on OEMs to prevent the installation of any rival
applications on its devices, there is always the option of installation of other applications by
the end user.

In Gujarat Bottling Co. Ltd. & Ors., the Supreme Court held that restriction on franchises to
not deal in competitive goods is not a restraint of trade and is consequently legal.45 Applying
this principle the measures employed by Topple are means to achieve a legitimate objective of
improving the overall product that it the OS by creating an ecosystem that enhances the user
experience.

The respondents argue that the restrictions on the preinstallation of rival applications are based
on concerns related to ensuring compatibility, stability, and security of the Ydroid platform,
rather than an intention to restrict market access to its rivals. Ensuring that the pre-installed
applications are optimized and seamlessly integrated with the Ydroid operating system is a
legitimate technical and operational concern for Topple as the platform owner.

It is noteworthy that Topple's licensing agreements do not impose any restrictions on end-users
ability to install applications from sources other than the Topple Play Store. By providing end-
users with the ability to freely access and install alternative applications, Topple demonstrates
that its objective is not to foreclose competition or restrict consumer choice. Rather, the focus
is on curating a cohesive ecosystem that offers a seamless and optimized user experience for
Ydroid users, while still preserving their freedom to explore and utilize alternative applications
as desired.

Furthermore, it is crucial to consider the dynamic and rapidly evolving nature of the technology
sector. The ability to innovate, improve products, and foster a robust ecosystem is essential for
companies like Topple to remain competitive and meet evolving consumer demands. Imposing
restrictive interpretations on legitimate business practices aimed at enhancing user experience

44
Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India, 2017 CompLR 586 (CCI).
45 Gujarat Bottling Co. Ltd. v. Coca-Cola Company, [1995] 84 CompCas 618 (SC).

25
could potentially stifle innovation and hinder the development of better products and services
for consumers.

4. TOPPLE'S CONDUCT IS NOT DISCRIMINATORY AND DOES NOT VIOLATE

THE COMPETITION ACT
It is humbly submitted before the hon’ble High Court that Topple’s conduct is not
discriminatory and does not violate the Competition Act as; Firstly, there is no abuse of
Dominant Position by Topple; Secondly, Topple's policies on the Play Store are not
Discriminatory; Thirdly, The Commission rates are not excessive; And finally, there is no
denial of market access by Topple.

4.1. No Abuse of Dominant Position

While Topple may be dominant in the relevant mobile OS and app store markets, its conduct
does not constitute an abuse of that dominant position under Section 4. Mere dominance is not
itself a violation - only an abuse that distorts competition is prohibited.46 Topple's policies are
legitimate commercial practices lacking any exclusionary effect.
The agreements with OEMs requiring pre-installation of Topple's first-party apps serve pro-
competitive rationales of ensuring integrity, security, interoperability and proper functioning
of the Ydroid ecosystem for the benefit of consumers. The pre-installation merely provides an
out-of-the-box integrated user experience.
Crucially, Topple does not prohibit OEMs from also pre-installing competing apps or giving
rivals promotional placement. Rival apps are freely available for download from multiple
sources like Play Store, OEM stores, direct downloads etc. Sufficient consumer choice exists
and competitors are not denied market access or afforded discriminatory treatment.
The Commission has recognized that requiring pre-installation of some apps can be justified if
it improves user experience and application performance.47 Topple's policies do not foreclose
the ability of users to download other apps, nor do they undermine the incentives of third-
parties to develop new apps.

46
Competition Commission of India v. Bharti Airtel Ltd., (2019) 2 SCC 521.
47
Google Android Case (EC, 2018), paras. 847-848.

26
The Commission and courts have cautioned against excessive regulatory intervention in
platform businesses' design choices where pro-competitive justifications exist.48 Topple's
model is aimed at maintaining a secure, integrated application ecosystem and does not warrant
intrusive remedies.

4.2. Play Store Policies Are Not Discriminatory

Topple's policies on the Play Store regarding differential treatment of its own payment
mechanism versus third-party processors do not violate Section 4(2)(d)'s bar on
"discrimination". The differential policies have objective commercial justifications consistent
with fair competition on merits.
The 30% commission applicable on third-party payment processors is reasonable and reflects
the substantial costs incurred by Topple to create, operate and maintain the secure Play Store
platform and integrate third-party services. This includes developer tools, app review,
distribution channels, security vetting, customer service, etc.
In contrast, Topple's own in-house payment processing mechanism is organically integrated
into the platform and does not utilize any third-party intermediary services which would
necessitate additional processing fees or integration costs.
Hence, the differential treatment is justified on the differing circumstances - third-party
payment processors require additional costs for integration and service provisioning that
Topple's in-house mechanism does not incur. The charges are commensurate with these
additional costs, not discriminatory.

4.3. Commission Rates Are Not Excessive

The 30% commission rate challenged is a standard industry norm adopted by major competing
app stores and distribution platforms globally. Apple's App Store, Google Play and others
uncontroversially apply equivalent or higher commissions.49 This suggests it is a commercially
reasonable revenue-share model.
The justification for such commissions is that as a platform owner, Topple incurs substantial
costs in maintaining the integrity, security, performance and attractiveness of the Play Store.
This includes engineering talent, platform development, rigorous app review systems,
intellectual property protection, etc.

48
FICCI v. MRTP, (2010) 9 SCC 552; CCI v. Bharti Airtel AIR. (2019) SC 113.
49
Epic Games v. Apple (A.N.D. Cal, 2021); Apple Inc. v. Pepper, 589 U.S. __ (2019).

27
These sizeable investments in creating a safe and attractive ecosystem for developers and users
alike necessitate reasonable monetization via service fees and revenue-sharing models. The
lack of viable alternatives indicates the commission is not excessive or supra-competitive.

4.4. No Denial of Market Access

Section 4(2)(c) prohibits a dominant firm from denying market access to competitors.
However, Topple's Play Store policies do not impose any such denial of access to third-party
app developers and payment processors. Their services remain freely available to users.
The Play Store is merely a supplemental distribution channel provided at Topple's discretion
and subject to its terms. It does not comprise an "essential facility" whose access must be
granted to competitors - alternative channels like OEM stores, direct downloads, web apps etc.
remain available.
Developers can choose to multi-home and distribute via multiple channels, sidestepping Play
Store commissions. Consumers face no restrictions on accessing competing apps or payment
services. The lack of insurmountable barriers to market entry negates any claim of denial of
access. Section 4(2)(c) is not contravened.

28
 PRAYER
Wherefore, in the light of the facts of the case, arguments advanced and authorities cited, the
respondent, TOPPLE humbly submits that the Hon’ble Court be pleased to adjudge and declare
that:
1. In light of the above submissions that no prima facie case of contravention of the
Competition Act, 2002 is made out against Topple through its agreements with mobile
device manufacturers, policies regarding the Ydroid operating system and Topple Play
Store, it is most respectfully prayed that this Hon'ble Commission may be pleased to
hold that the information/complaint against Topple is not maintainable and dismiss the
same.
2. In light of the above submissions, that the requirement of pre installation of Topple
Apps in return for free license, and the act of tying or bundling of Topple Applications
and Services prevented the development and market access of rival applications and
services are not in contravention of Section 4 of the Act.
3. Topple's agreements with OEMs regarding pre-installation of applications do not
impose any substantial restrictions on end-users' ability to access rival applications, and
that such pre-installation furthers the legitimate objective of fostering an integrated
ecosystem while preserving consumer choice, it is most respectfully prayed that this
Hon'ble Court may be pleased to hold that Topple's licensing agreements and pre-
installation requirements do not have any appreciable adverse effect on competition or
consumer welfare in the relevant markets.
4. That Topple's conduct does not violate the provisions of the Competition Act, through
any abuse of dominant position or discriminatory practices, it is most respectfully
prayed that this Hon'ble Court may be pleased to hold that the conduct of Topple is not
in contravention of the Competition Act and dismiss the allegations against it.
5. Pass such other and further orders as this Hon'ble Court may deem fit and proper in the
facts and circumstances of the case.

All of which is respectfully submitted

Place: S/d_________________
Date: (COUNSEL FOR RESPONDENT)

29