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The Competition Commission of India closes the information filed against Procter and Gamble Hygiene and Health Care Limited and The Procter and Gamble Company under Section 26(2) of the Competition Act, 2002. The informant states that the opposite parties use his patented green technology for sanitary pads without consent. The Commission defines the relevant market as the market for disposable sanitary pads in India. The Commission finds that the opposite parties do not hold a dominant position in this market because close competitors possess comparable economic resources. The Commission also finds no evidence of abuse or market access denial.
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COMPETITION COMMISSION OF INDIA
Case No. 39 of 2023
In Re:
Rajiv Rai Sachdev
S/o Gulshan Sachdev
J-88, 3rd Floor, Kalkaji, New Delhi – 110 019.
Informant
And
Procter & Gamble Hygiene and Health Care Limited
P&G Plaza, Cardinal Gracias Road, Chakala, Andheri East,
Mumbai, Maharashtra – 400 099.
Opposite Party No. 1
The Procter & Gamble Company, USA
#1 Procter & Gamble Plaza,
Cincinnati, OH 45202, United States.
Opposite Party No. 2
CORAM
Ms. Ravneet Kaur
Chairperson
Mr. Anil Agrawal
Member
Ms. Sweta Kakkad
Member
Mr. Deepak Anurag
Member
ORDER UNDER SECTION 26(2) OF THE COMPETITION ACT, 2002
The present Information has been filed by Shri Rajiv Rai Sachdev (‘Informant’) under Section 19(1)(a) of the Competition Act, 2002 (the ‘Act’) against Procter & Gamble Hygiene and Health Care Limited (‘OP-1’) and The Procter & Gamble Company, USA (‘OP-2’) (together the ‘OPs’) alleging contravention of the provisions of Section 4(2)(c) of the Act.
The Informant is the promoter of a start-up company Advantage Nature, a unit of Advantage Television Pvt. Ltd. It is stated that with a vision to create sustainable textile products with comprehensive herbal hygiene function, the Informant invented a disruptive green technology i.e. “Process of dyeing and processing a natural textile products using natural dyes/ herbs alongside Neem and Tulsi” called ‘Enliven’. The said technology was duly patented by the Informant in India, US and Europe and many more fresh patents are also pending across the globe filed through World Intellectual Property Organisation (‘WIPO’) route in this domain. As per the Information, the prime vision and business model of the Informant is to collaborate/ license Enliven to other companies having global presence and as such, he has been promoting the application of his patented technology in all kinds of garments and textile products.
OP-2, an American multinational company founded in 1837, is a consumer goods corporation headquartered in Cincinnati, Ohio. It is stated to specialise in a wide range of personal health/ consumer health and personal care & hygiene products, including Sanitary Pads (manufacturing and selling) under the brand name ‘Whisper’. The Indian subsidiary of OP-2 is OP-1, having its office/ establishment at Mumbai, Maharashtra.
As per the Informant, in 2018, he learnt about an initiative of the OPs “PG Connect + Develop”, whereunder the OPs, through their portal www.pgconnectdevelop.com, invited applications from techno-innovators like the Informant, who desired to partner with the OPs, to make their submissions to the OPs for development of innovative products. The Informant stated that under the OPs’ said program, he filed his submissions on 18.05.2018 with the title “Functional Herbal Hygiene Bio Finishes for Sanitary Pads & Diapers for Adults & Kids”. As per the Informant, he explained to the OPs details about the beneficial hygiene and wellness properties of neem, its unique features, and the benefits it offers relative to existing solutions both in terms of P&G’s target customers and mother earth along with patent details in the name of the Informant, and applicability of the same upon the products of P&G i.e. Sanitary Pads used by females and Diapers used by kids as well as adults.
As per the Informant, the submission of the Informant was duly acknowledged by the OPs vide e-mail dated 18.05.2018. However, the OPs, vide e-mail communication dated 02.08.2018, communicated to the Informant that they do not wish to pursue his submission currently, citing that “Even such a large company as P&G must make strategic decisions regarding which opportunities we pursue. Regardless of its merit, we may find that a submitted technology, product, package, or other innovation is not a fit for our current needs or strategies. Typically, we are not at liberty to provide detailed reasons for these decisions.”
The Informant stated that post 2018, he went on to pursue his dream of using his patented technology at commercial level and kept approaching other market players in the field of textiles and hygiene products with functional herbal hygiene. One of such players “Peter England”, a brand of Aditya Birla Fashion and Retail Ltd., in 2020, launched its products treated with Enliven and duly acknowledged and tested the benefits of the Informant’s green technology on its gamut of textile products.
As per the Informant, in October 2021, the Informant came across a new type of Sanitary Pads launched by the OPs namely “Whisper ultra clean” with the description “New with Herbal Oil” and “Our No. 1 Hygienic Protection”. The Informant alleged that the said product has exactly the same claims, features and benefits which were offered by the Informant’s submission dated 18.05.2018 to the OPs. Further, as per the Informant, the new product of the OPs, apart from this description, also contains upon its packaging pictorial view of “Neem Leaves” which makes it clear that the said product is treated with “Herbal Oil and extracts of Neem”. As per the Informant, the product packaging itself of “Whisper ultra clean” is sufficient to adduce that the said product is subjected to a particular process or treatment with the help of herbal/ neem oil or extracts to make it No. 1 in hygiene protection.
As per the Informant, he had, under the P&G Connect + Develop program, accepted the offer proposal of P&G and made his submissions to treat sanitary pads and diapers with hygiene and herbal properties on a non-confidential basis, only for the specific purpose of evaluation of his submission by P&G for partnering/ collaboration, according to the terms and conditions mentioned under the program. Under their technology/ innovation submission program, the OPs had mandated compulsory disclosure without signing any non-disclosure agreement (‘NDA’) by the participants. The terms and conditions stated that the “non-confidential basis” was only for the purpose of expediting the evaluation process of the innovations.
However, the Informant alleged that from the product being sold by the OPs, it is evidently clear that the OPs misused the information/ idea shared by the Informant and they failed to confirm to their terms and conditions conveyed through www.pgconnectdevelop.com wherein the OPs committed that “P&G uses this information to communicate with you about your submission only not for any other purpose without your express approval”. As per the Informant, the OPs have used the information/ idea of the Informant without his consent or any agreement whatsoever. As per the Informant, submission made “non-confidential basis” solely for the purpose of evaluation does not give P&G the rights to use the submission and cheat or take advantage of innovators like the Informant. The Informant stated that while replying to the Informant vide e-mail dated 02.08.2018, the OPs had nowhere mentioned that the proposed solution is already known to them or that they already have work in progress in the area encompassed by the submission or conveyed any other doubts about the efficacy of Informant’s technology or patent as expressly mentioned in the pre-defined terms and conditions of the Connect + Develop program.
Further, the Informant submitted that in 2020, Aditya Birla Fashions and Retail Ltd. gave an official press release of Peter England Neem Tulsi Collection Apparel and Mask. As per the Informant, after going through Aditya Birla Fashion and Retail Limited and the Informant’s promotional material, the OPs realised the true potential of the Informant’s internationally patented green technology, which was already shared by the Informant with them in 2018 and accordingly, they launched their product Whisper ultra clean sanitary pads in a big way in 2021, after stealing the Informant’s vision document with creative ideas brochure. This, as per the Informant, amounts to abuse of dominant position by the OPs in contravention of Section 4(2)(c) of the Act i.e. indulging in practices resulting in denial of market access to the Informant. The Informant submitted that using their dominant power, unethical aid and deceptive business practices, the OPs have ousted the Informant at the very inception, from bringing in the use of his innovative technology applied upon sanitary pads segment of the products. By putting the technology of the Informant to commercial use in such a deceptive way, the OPs became the first market player to bring in such a product with over 50% market share in the relevant market of sanitary pads both geographically and revenue wise, meaning thereby that the Informant has lost the first edge to collaborate and bring into the relevant market such product despite being the inventor/ innovator of such technology with duly registered patents in his name.
The Informant alleged that it is the modus operandi of P&G’s Connect + Develop program to wilfully collect and compile innovation data of techno-innovators like the Informant by fraudulently luring and inducing them, only to compliment and add value to their own products and business and for their own commercial exploitation.
The Informant also put on record certain correspondences exchanged between himself and the OPs as well as mentioned about a criminal complaint filed before the Superintendent of Police, Solan, Himachal Pradesh which was stated to be pending.
Citing the above facts and making the aforesaid allegations, the Informant, inter alia, prayed the Commission to initiate an investigation/ inquiry under Section 26(1) of the Act against the OPs for violation of the provisions of the Act, and pass remedial orders against the OPs by way of restraining them from manufacture and sale of impugned products “Whisper – ultra clean with Herbal Oil” along with grant of compensation to the Informant herein.
The Informant also sought interim relief from the Commission to, inter alia, restrain the OPs from manufacturing, selling and distributing the product “Whisper - Ultra Clean with Herbal Oil” in the territory of India and other relevant countries till passing of final order in the matter and to direct the OPs to produce before the Commission the process and method of manufacture of the alleged product in question.
The Commission, upon consideration of the above Information and the documents annexed therewith in its ordinary meeting held on 22.05.2024, sought comments of the OPs thereupon and the certain additional information from the Informant.
In response to the above, the Informant filed its reply on 10.06.2024, inter alia, stating that the Informant has not filed any patent infringement suit against the OPs as the present case is distinct from normal patent infringement cases.
On the other hand, the OPs filed their comments on 12.06.2024 and 24.06.2024, stating, inter alia, as follows:
In its Ordinary Meeting held on 16.07.2024, the Commission considered the Information along with its Annexures, the additional information provided by the Informant, and the comments of the OPs on the Information, and decided to pass an appropriate order in the matter.
The primary grievance of the Informant in the present matter seems to be the launch of “Whisper ultra clean” Sanitary Pads by the OPs in the Indian market, which product, as per the Informant, has exactly the same claims, features and benefits, which the Informant had suggested to the OPs vide his submission dated 18.05.2018 under PG Connect + Develop program. As per the Informant, such information/ idea to develop the OPs’ sanitary pads and diapers by incorporating Informant’s green technology Enliven therein was shared by the Informant with the OPs without signing an NDA under the terms and conditions of the said program, as per which the OPs were not to use the information shared for any purpose without express approval of the Informant. However, the OPs used the said idea to incorporate herbal technology in their well-known sanitary pad brand ‘Whisper’, without authorisation from the Informant.
As per the Informant, the OPs are a dominant player in the sanitary pad market and as such, their such conduct of wilfully collecting and compiling innovation data of techno-innovators like the Informant by fraudulently luring and inducing them through P&G Connect + Develop, and thereafter using their idea in its own products without collaboration with/ permission of the innovator, amounts to abuse of dominant position by the OPs in terms of Section 4 of the Act.
As per the Informant, such conduct of the OPs resulted in denial of market access to the Informant to the sanitary pads market as he lost the first edge to collaborate and bring into the market this technology despite being the inventor/ innovator of such technology with duly registered patents in his name.
For the purposes of examining the allegations of abuse of dominance under Section 4 of the Act, the Commission adopts the following three-pronged approach:
