The judiciary in Pakistan, under the trademark law, has been trying to protect both foreign and domestic marks for the past several years. ILLUSTRATION: OMER ASIM
“If my lawn suit is a copy of one created by a snooty designer but it is cheaper and the same quality, I really have no issue buying it. I don’t care about saying yes or no to piracy,” says a 22-year-old woman, requesting not to be named because “it would convey to people that I am not socially responsible”.
Yet, the issue is not one to be taken lightly. Research shows that in the long run, piracy is detrimental to the creative and innovative processes in an economy and society. April 26 is observed globally to create awareness about intellectual property.
Understanding Intellectual Property
IPR has three basic components — trademarks, patents and copyrights. Creations borne of intelligence like discoveries and inventions, works of art and literature, patterns and designs as well as symbols, images or names used for commercial purposes come under this.
The creator can gain both recognition and lucrative benefits from what they create. Protecting these rights, in the long run, fosters creativity and innovation.
When the issue of enforceability of intellectual property rights is discussed globally, Pakistan’s name is in the list of countries where sale of pirated and counterfeit products is a common practice. While the government and judiciary try to play a diligent role to curb piracy and infringement of IPR in Pakistan, it still does not have desired results.
The IP institutional framework has been in place since 1948, but fragmented. It was revised in 2005, after which Pakistan became a part of the World Trade Organisation by ratifying the Trade Related Intellectual Property Rights, Agreement (TRIPS). A new infrastructure was formed by creating the Intellectual Property Organisation (IPO) Pakistan.
Since the Pakistani legal system is a common law system, therefore even an unregistered trademark is entitled to protection and the rights’ holder of the unregistered trademark can initiate action against a third party under the law of passing ‘off’.
The judiciary in Pakistan, under the trademark law, has been trying to protect both foreign and domestic marks for the past several years. Many foreign entities have been able to protect their marks in Pakistan under these laws.
An example is the case cited in the Monthly Law Digest of Pakistan in 2001. The foreign company, MARS Incorporated Pvt Ltd, filed a case against “V the Mineral Water Bottling Plant (Pvt) Ltd” for using their brand name. As a result, the Sindh High Court granted an interim injunction restraining the defendant from using the internationally known trademark MARS on soft drinks. This injunction was granted despite the fact that the bottling company had registered the trademark MARS with the trademarks registry.
Interestingly, the Pakistani trademark law also protects geographical indications wherein a given product is a known creation of a certain area. A recent example could be the Peshawari chappals design that the British designer Paul Smith drew inspiration from. When Smith initially did not give due credit to the place of origin of the design, a case could very well have been filed against him.
Experts talk
With regard to the enforcement of intellectual property rights and to curb piracy in Pakistan, practitioners express their concerns regarding the country’s enforcement of IPR.
Advocate Shabana Perveen, who has been working with a leading IP, says that “the enforceability of intellectual property rights in Pakistan is still evolving. The system needs to change because till date people try to get their marks registered through frivolous means.” She adds that there have been instances where an order has been passed by the respective Registrar of the trademarks, but no one bothered to comply. However, on a positive note, Perveen says that now all firms stand united and are trying to curb notorious activities like getting marks registered in an unlawful manner. She stated that the previous registrar appointed was not qualified to hold such a position and hence was removed from his position after all the IP practitioners appealed against him.
Sara Shah is a lawyer and works as a legal advisor for The Express Media Group.
Published in The Express Tribune, April 26th, 2014.
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COMMENTS (3)
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This is beauty of Pakistan, enjoy this.
The law is there. What we actually need is enforceability of IPR's. In my opinion, we have much better copyright law, as a whole, because in Pakistan (compared to UK)we can also register Copyright works and that very registration would be treated as prima facia evidence before competent authority including courts. However, much of the work is required in Patent area, since for most the people/judges in Pakistan this is quite new thing to talk about.
The entire structure of IP need to be revised, with only one authority that registers trademarks, designs, patents, copyrights and where cases of infringement can be fought. Pakistani Law need to provide one window solution to corporate structures.
Awareness on this subject need to reach to the bottom ( to the level of SHOs) with whom companies/individuals has to liaison for raids etc.