The enforcement of `The Intellectual Property Rights Ordinance 2006’ created a central body with an autonomous status at Islamabad over all organizations an offices dealing with the Intellectual Property Rights in Pakistan. This is an autonomous body under the administrative control of the cabinet division of the Federal Government of Pakistan. This shall be headed by a Chairman, Vice Chairman and other members from the public as well as private sector and the Director General of the body is its Chief Executive.
Prior to establishment of the said organization, trade marks registry. The copy rights registry, the patent office, and the design office, were working as an independent entities having no coordination or collaboration amongst them.
The schedule of the Intellectual Property Rights Organization has put the following under its administrative and policy control.
(i) The Trade Marks Ordinance, 2001 (XIX of 2001)
(ii) The Copy Rights Ordinance, 1962 (XXXIV of 1962)
(iii) The Patents Ordinance, 2000 (LXI of 2000)
(iv) The Registered Designs Ordinance, 2000 (XLV of 2000)
(v) The Registered Layout Design of the Integerated Circuits Ordinance, 2000 (XLIX of 2000)
Section 29 of the said Ordinance provides that upon the commencement of this Ordinance, the trade marks registry, copy rights offices, patent offices shall become part of the intellectual property rights organization.
The above said board shall be responsible for setting objectives and policy guidelines and has powers to administer and coordinate all Govt. systems for the protection and strengthening of the intellectual property rights under the laws specified in schedule, rules and regulations of the relevant laws in force.
WHAT IS A TRADE MARK
A Trade Mark is some symbol, consisting in general of a picture, word or words, word and figures, word or words with design, words or word with colour scheme etc which is applied or attached with the Trade Goods, so as to distinguish them from similar goods of other traders, and to identify them as his goods, which are produced for sale.
A mark to be a Trade Mark must be a mark used for the denoting that the goods are the manufacture or the merchandise of a particular person. A trade Mark must be some visible and concret device or design affixed to goods to indicate that they are manufacture of the person whose property the Trade Mark is. A Trade Mark in order to be a Trade Mark must be innovative, distinctive that is to say, adopted to distinguish the goods of the proprietor of a Trade Mark from those of other persons. A Mark simply describing the quality of goods is not a Trade Mark. If a Mark does not disclose the place of its origin, it is also not a Trade Mark.
A registered Trade Mark is the property of a person who is the proprietor of the Trade Mark registered under the Trade Marks Ordinance.
Test of infringement
The comparison of the disputed mark with the registered Mark by a judge was a mode for discovering the truth.
Trade Marks Journal
There is no obligation cast upon the people to keep abrest of the trade mark journal failure to do so does not leave any inference that the person aggrieved, had non the less notice of registration.
Section 10 of the Trade Marks Ordinance Register of Trade.
(1) For the purposes of this Ordinance, a record called the register of Trade Marks shall be kept at the Trade Marks registry wherein shall be entered particulars of all registered Trade Marks with the names, addresses and description of the properties, conditions, limitations and other matters relating to the Trade Mark registered S. 46 of the Trade Marks Ordinance provides relief by way of damages, injunction accounts, for the infringement of a register Trade Mark to the proprietor of the Trade Mark and this relief is available as is available such device whereby goods are demanded by customers by description of marks, a customer of ordinary intelligence, when offered merchandise with in prints of such marks as marks, closely resumbling those, would hardly investigate other writing or descriptions imprinted on packets. There may be a customer who is illiterate who will depend upon the popular name under which the goods are sold with a casual look on packages answering those names.
Cardinal Principal of Law and Trading
Cordinal principal of law and commercial trading was that deceptive measures should not be adopted to adversely affect good will and reputation of the registered Tarde Mark.
`Deceptinely similar’ in relation to a trade mark, means such near resumblence between it and another Trade Marks that it is likely to deceive or cause confusion to the customer/consumer.
Section 46-C Infringement of Trade Mark
1. An infringement of a Trade Mark shall be actionable by the proprietor of the Trade Mark.
2. An action for infringement. All such relief by way of damages, injunctions accounts or otherwise shall be available in respect of the infringement of Trade Mark as any other property right.
3. Nothing in this section shall be deemed to affect rights of action against any person for passing off goods as the good of another person or service provided by another person or the remedies in respect thereof.
Paketon penal code provides Sections 478 to 489 in relation to the infringement of registered Trade Mark before the trial by the Magistrate 1st Class Schedule II of Cr.P.C. has enlisted all offence as bailable and non-cognizable.
The study/scrutiny of laws relating to Trade Marks infringement has failed to provided any relief or remedy to the real victim of violation of Trade Mark i.e. purchaser of goods passed off through deception. Further, it should not mislead the unwory customer, consumer to purchase goods or service purporting them to be the goods or services of the registered proprietors.
Trade Mark needs to be an innovative, copy right original and creative whereas design should be an invention to make them distinctive and distinguishable.
The violation of abovesaid standered fall in the category of immitation and the similarity causing confusion to the customer/consumer which can safely be termed infringement of intellectual property rights.
Above discussion reveals that the intellectual property laws have a limited scope in the sense that the real victim of the immoral act of infringement is public and masses in general.
It has been observed that the dealers as well as retailers are profit oriented in their approach business. They easily join hands with the imitators to grab more profit margin in Trade. This unholy alliance and conclusiveness of the imitator and dealer, retailer work always to the detriment of the masses.
It is unfortunate that our law makers have blindly followed the tradition of unfair Trade practice to the extent of proprietor and the violator as provided in the English law of Torts,
It is high time that the laws relating to intellectual property rights be amended to consider the plight of masses giving then direct relief and redress in the matter. The recognition earned by other organizations in Trade similar and identical commodity, bare visual look on the wrappers where in the petitioners packed their product, had reflacted complete resemblance providing similarity of design, scheme and colour which could certainly affect the products of the respondents illiterate customer could easily be misled on looking at wrappers. Supreme Court refused to interfere as the lower courts judgments did not suffer from any material defect or legal infirmity, Discretionary constitutional jurisdiction could not be used to perpetuate deception, leave to appeal refused 2002 LN SC (PAK) 368 (a).
Similarity Trade Marks should not be such which could cause confusion in the minds of unwary customer/ consumer so that the goods of the imitator are not passed off due to identical pattern used by the person infringing the registered copy right of the proprietor of a Trade Mark, copy right, design.
Law does not permit any person to override the principal of healthy completion and usurp the hard earned good will and reputation of the proprietor of intellectual property.
Precise Critria of infringement
Visual look or phoneticall sound of name on the label /wrapper of the goods is normal device of deception during imitation.
6. The Assumption that the consumer protection courts provided a safe Guard to the customer/consumer in not true in the matters of infringement of the intellectual property rights for the following reasons:-
(i) The customer/ consumer of the intellectual property rights are normally illitrate and unwary.
(ii) The prima facie evidence of the proprietorship of the registered intellectual property right is with the registered owner and it is not possible for the general masses to ascertain the truth of the matter easily.
(iii) The mechanism of notice and other requirements provided in the consumer protection courts rules out the possibility of legal action against the imitator of registered intellectual property right.
(iv) The Consumer protection courts have been established at divisional head quarters and this fact alone keeps the masses out to provide them any relief and remedy through petition/ application.
(v) The intellectual property laws are based on unfair trading practice of the law of torts giving civil as well as criminal action remedy available to the registered proprietors or their assignees.
(vi) There is no evidence available to the aggrieved masses in general to connect the real imitator with the dealer, retailer or shopkeeper providing substandard and fake goods/service.
(vii) The relevant laws relating to the intellectual property rights should be amended to give access of redress to the customer/consumer. The provisions contained in PPC and Cr.P.C. should be made cognizable in the matter of general purchaser if the deceptive passing off goods has accrued. The punishment should also be in creased against the offender.