EENA SIDDIQUE
PHILOSOPHY governing the trade marksjurisprudenceisthe ‘useit, orlose it’ principle.Once atrademark had been honestly adopted by a trade, the mark would not always remain the property of the said trader, and he would remain the owner of the mark, as long as, he was using the mark in course oftrade and having abandonedthe use of the trade mark, he would eventually lose all rights to the mark. The Trade Mark Ordinance 2001,TheTradeMarkAct 1940 & The Trade Mark Rules 1963 are aimed to arrest the modes of unfair competition in Pakistan, however it has been noted that many retailers in Pakistan are increasingly fraudulently using the identical trademarks & logos of different companies, for marketing purposes, without any lawful permission, authorization or consent of the Mother Companies. Such unlawful acts by the retailers in Pakistan are not only a sheer violation of Trade Mark Ordinance 2001,TradeMarkAct 1940, Trade Mark Rules 1963 & other Intellectual Propertylaws of Pakistan, but also constitutes as false, unfair, deceptive andmisleadingmarketing practices and such unlawful acts are also capable of harming the business interests of the other legitimate retailers & companies in Pakistan. The practices of unlawfully using similar/identicaltrademarks does not only constitute as fraudulent use oflogos &trademarks but also constitute an act of deceptive marketing practices within the meaning of the Consumer Protection laws of Pakistan ie Sindh Consumer Protection Act 2014, Punjab Consumer Protection Act 2015, K.P Consumer Protection Act 2015 etc. It is very important for all the retailers in Pakistan to understand the concept of “deceptively similar” use of logos & trademarks. Using of the similar logo & trademarks, with the identical colours, design & style may very much amount to a breach of Trade Mark ordinance 2001,TradeMarkAct 1940,TradeMark Rules 1963. The test of “deceptively similar” product, under section 2(xii) ofTheTrademark Ordinance is that such rear resemblance between the trademarks or logos, which is likely to deceive or confuse the consumer. Astonishingly, the practice of “parasitic copying”is also very commonin Pakistan.The copying ofthe overalllayout, design, size shape and colour scheme of any trademark or logo constitutes as “parasitic copying” which also constitutes as unfair & deceptive marketing practice, hence an absolute violation of Trade Mark Ordinance 2001, Trade Mark Act 1940, Trade Mark Rules 1963 and a further violation of the aforementioned Consumers laws of Pakistan. It is pertinent to mention that it is a well-establishedlaw,interms ofthe reported cases, that deceptive marketing broadly included distribution of false information or of misleading information to consumers or and fraudulent use of another’s trade mark, firm name or product labelling or packaging Consumersin Pakistan are susceptible and at serious risk of falling prey to deceptive confusion pertaining to the origin and quality of different products due to the strikingly similar packaging and labelling of the products. Consumer Protection Laws of Pakistan strictly prohibitthe fraudulent use of another’strademark, firm name, or product labelling or packaging. The uninterrupted unlawful conduct of many retailers in Pakistan has the potential to inflict harm upon the goodwill and business interest of the many legitimate companies and cause confusion amongmany customersthrough dissemination of false and misleading information related to character, properties and quality of goods via similar/identical packaging. The presiding officers of consumer courts in Pakistan must understand that the deceptive marketing practices have a direct impact on the public at large. It is in the interest of the general public and fair competition in the market that the retailers in Pakistan should immediately be stopped to market their products, in an unfair and misleading manner and be encouraged to resort to the marketing practices which aretransparent and give consumers/customers true and correct information. —The writer isAdvocate of the High Courts, LLM Intellectual Property Laws.
