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ISLAMABAD: The Supreme Court has been urged to decide whether any order can be passed by the Intellectual Property Tribunal (IPT) or a high court in appeal for the enforcement of any provision of the Customs Act, 1969 including Sections 15 and 16 thereof, when jurisdictions of the IPT and the High Court do not extend beyond the purview of intellectual property laws.

Invoking the provisions of Section 15 and 16 of the Customs Act, 1969, the Sindh High Court (SHC) on 03-06-2020 had granted interim injunction to Muhammad Shah Kakar (respondent-5), which is rice exporter.

Petitioner M/S Hassan Corporation, Millers and Rice Exporters, through advocate Raheel Kamran Sheikh, has challenged the SHC’s verdict through an appeal under Article 185(3) of the Constitution, and contested the jurisdiction of the IPT and High Court regarding the matter.

It has cited the chairman FBR, Collector MCC Exports, Director, Directorate of IPR Enforcement (South) Karachi, Intellectual Property Tribunal, Sindh and Balochistan and Muhammad Shah Kakar as respondents.

A three-member bench, headed by Justice Umar Ata Bandial, in last hearing, had directed the petitioner’s counsel to supply the copies of application to the defence and the lawyers for FBR.

According to the petitioner, M/s Tabiat Sabz Mihan Co, a fairly large undertaking in Iran, is an importer and wholesaler of rice. It is registered proprietor of the trademark “Tabiat” in Iran under registration No 222125. The trademark “Tabiat” is a well-known trademark within Iran’s rice market.

The petitioner says it had established and developed relationship of trade and business with M/s Tabiat Sabz and had exported thousands of its consignments of rice worth millions of rupees since 2014.

The Tabiat Sabz asked the petitioner to export consignments of rice to them in Iran and also authorised the petitioner to register its brand in Pakistan, and in this regard, M/s Tabiat Sabz Mihan issued an NOC on 10-11-2019.

The petitioner applied for the trademark Tabiat bearing registration No 222125 to the packaging of rice on its various consignments for shipment and export to Iran via the UAE from Karachi.

Muhammad Shah Kakar (respondent-5) on 06-02-2020 served legal notice to the petitioner alleging therein that he has been in the business of rice for the last 20 years and “Tabiat” was his brand registered as trademark having registration No 313716 and that the petitioner has started counterfeiting his trademark and has also started export to Iran and the UAE exploiting the good market reputation built by him through his hard work and capital.

According to the petitioner, the respondent-5’s trademark No 313716 was registered in Class 30 on 20-09-2013.

The respondent-5 on 08-02-2020 filed a suit for declaration, permanent injunction and damages before the Intellectual Property Tribunal, Karachi.

Along with the suit, the respondent-5 also filed an application for interim relief, which was dismissed on 01-04-2020.

The respondent-5 then filed an appeal before the SHC which through a judgment dated 03-06-2020 allowed the appeal and reversed the order of the Tribunal.

The SHC held that Sections 15 and 16 of the Customs Act, 1969 empower the director IPR to initiate action in respect of the goods being exported by M/s Hassan Corporation with reference to the allegations of counterfeit/infringement.

It also said that in terms of an amendment to Sections 3CC and 3E being carried out under SRO 768(I)/2014, the officials are empowered to take action and thus, have lawfully exercised jurisdiction.

The SHC noted that the tribunal has not seized the lis (Suit No 02/2020), where the action of Directorate of IPR Enforcement was under challenge and all that was required from tribunal was to see whether infringement was practiced by respondent or otherwise and the judgment/order consequently would have an effect upon Directorate of the IPR Enforcement.

The petitioner challenged the SHC’s judgment before the Supreme Court.

Copyright Business Recorder, 2021

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