Infringement of the Intellectual Property Rights (Trademark, Copyright and Patent) in Pakistan Section 46-C Infringement of Trade Mark elaborates the procedure as under :-
1. An infringement of a Trade Mark in Pakistan shall be actionable by the proprietor of the Trademark.
2. An action for infringement in Pakistan. All such relief by way of damages, injunctions accounts or otherwise shall be available in respect of the infringement of Trademark 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.
Pakistan 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 Trademarks infringement in Pakistan 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 collusiveness 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 comodity, 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 prepetuate 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 unway 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 overside 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 phonetical sound of name on the lable /wrapper of the goods is normal device of deception during immitation.
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 immitator of registered intellectual property right.
(iv) The Consumer protecton 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 assigness.
(vi) There is no evidence available to the aggrieved masses in general to connect the real immitator with the dealer, retailor or shopkeeper providing substandered 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 Pakistan Penal Code (PPC) and Criminal Procedure Code 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.