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A three-member bench of the Competition Commission of Pakistan (CCP) has declared that provisions of the Competition Act 2010 shall have an overriding effect on the Trademark (TM) Ordinance.

According to the order issued by the three-member bench of the CCP here on Friday, it is clear that the provisions of the Act shall have an overriding effect on any other law enforced for the time being, which inter alia include the TM Ordinance.

The Commission has exclusive jurisdiction to take action and adjudicate on any matter provided in the Competition Act. Furthermore, the reference is made to the provisions of Section 59 of the Act, which for ease of reference are reproduced: "Act to override other laws. - The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law/or the time being in force."

The CCP bench also declared that before moving on to consider imposing penalty for the violations as determined of CCP order, the bench would like to stress that the law governing the trademark jealously protects the registered trademark for the growth of healthy competition in trade, commerce, industry and those who have invested their money, labor and skills for earning a remarkable reputation should not be allowed to be exploited by rivals who venture to take benefit of the earned reputation by a registered trademark. The objects/ intention of the legislature, while enacting the trademark, has been primarily focused towards investment and innovation leading to elimination of chances of confusion and deception, the CCP bench added.

The CCP bench further explained that the application of the Act is not only extendable to violations occurring in present, but also to the violations occurred in past. Any person violating any provisions of the Act cannot be allowed to get away with his violation merely on the fact that the time has lapsed.

This order shall dispose of proceedings arising out of Show Cause Notices (the 'SCNs'), issued to Nimko Corner (Respondent No. 1) and Karachi Nimco (Respondent No. 2), respectively and hereinafter collectively referred to as the 'Respondents', for prima facie violation of Section 10 of the Competition Act 2010, (the' Act').

The SCNs were issued to the respondents pursuant to enquiry report dated 15 February 2019 (the 'Enquiry Report') which was conducted on a complaint filed by M/s Nimco Corner (the 'Complainant'), wherein the Complainant alleged that the Respondents have disseminated false and misleading information by using virtually identical firm names, trademarks and copying of distinctive item of product packaging, which amounts to deceptive marketing practices within the meanings of Section 10 of the Act.

The counsel for complainant requested for issuance of an order, restraining the respondents therein from displaying false or misleading information to the customer, distributing such offending product packaging which is confusingly similar to complainant's packaging and copying firm name or trademarks which are phonetically or graphically similar to complainant's firm name.

The CCP bench observed that the respondents are hereby reprimanded to ensure responsible behavior in future with respect to the marketing of their business and are directed to cease and desist from the use of the word "NIMCO", trademark, trade dress and packaging material similar to that of the complainant's trade mark, trade dress and packaging material, with immediate effect and not to use it in future.

Copyright Business Recorder, 2019