Kitchenise is an online sale portal which displayed Hypersteel India Private Limited's, steel products on its portal at a discounted price. Aggrieved by this Hypersteel displayed a caution notice on its website ('Caution

The facts of the present case are similar to the case of [Jasper Infotech Pvt. Ltd. (Snapdeal) v. Kaff Appliances (India) Pvt. Ltd [CCI] . On a consideration of the aforesaid material, the main issue that arises for determination by the Commission in the present matter is whether the allegation of the Informant against the Opposite Party (OP) with regard to imposition of resale price maintenance, in contravention of the provisions of Section 3(4) (e) read with Section 3(1) of the Act, is established on the basis of the facts and evidence on record. Upon a bare perusal of the provisions and the material available on record, it is evident that the Informant's online portal, i.e. Snapdeal, is offering an online distribution service to various distributors/dealers. It may also be relevant to highlight that the Commission has earlier held, though not in a case involving similar issues, that online retail portals are a part of distribution channel. The Commission, in Deepak Verma v. Clues Network (Case No. 34/2016, order dated 26.07.2016), while determining the dominance of an online retail portal, held that online and offline are not two different relevant markets, but are two different channels of distribution to the same relevant market. Similarly, in the case of Confederation of Real Estate Brokers Association of India v. Magicbricks.com & Ors. (Case No. 23/2016, order dated 03.05.2016), while determining the relevant market, the Commission held that online and offline services of brokers cannot be distinguished. Both are alternative channels of delivering the same service. The Commission, therefore, observes that in the instant case also, when the distributors/dealers are using the services of Informant while selling the products of the OP, it ipso facto becomes a part of distribution/vertical chain and thus, it would be incorrect to state that the Informant is only a market place facilitating interaction of the buyers and sellers online. It is not necessary in such evolving markets that any entrant in the downstream level of the value chain should join at the behest of the manufacturer or with its explicit concurrence. What may be relevant is to examine as to whether such player provides any active service to the end customer in availing the product or service involved, which given the facts of the present case can be answered in affirmative. Based on the material available on record, the Commission is of the view that in the present case there was no Appreciable Adverse Effect on Competition (AAEC). Further, the presence of a large number of dealers who were competing with each other suggests a fair degree of intra-brand competition. The data collected by the DG showed that there were 1,422 dealers selling OP's kitchen appliances all over India during the relevant time period who were found to be competing for the turnover linked incentives. Discounts were variable in nature and linked to the target being achieved. Since incentives were variable, the net landing price for each dealer was also different. This enabled different dealers to offer different prices to customers to the same product. Moreover, competition among distributors was found to be even stiffer as they were exclusively dealing with the OP's products. Thus, the Commission is of the view that vis-à-vis the dealers the evidence did not reveal the existence of any price restriction or minimum Resale Price Maintenance (RPM). As regards the Informant, though the existence of Caution Notice, Legal Notice and Email has been established, it has not been conclusively established that they were used as instruments for imposing a minimum RPM on the Informant. Further, since vertical agreements falling under Section 3(4) read with Section 3(1) are subjected to rule of reason analysis, even if there exists a price restriction by the OP, AAEC needs to be established. As highlighted above, the actual impact of the conduct of OP did not demonstrate any adverse effect on competition. Furthermore, the existence of intra brand competition among dealers/distributors negate the anti-competitive impact of the OP's alleged conduct. Thus, no contravention of the provisions of Section 3(4) (e) of the Act is found against the OP, in the facts and circumstances of the present case. For the foregoing reasons, the Commission is of the view that the evidence on record does not establish a case of contravention against the OP within the provisions of Section 3(4) (e) read with Section 3(1) of the Act. Hence, the case is hereby directed to be closed.