Section | 10 |
Violation: | Deceptive Marketing Practices |
Sector: | Automobile |
Penalty: | No Penalty |
Members: | Dr. Muhammad Saleem Dr. Shahzad Ansar Ms. Bushra Naz |
Background of the case: A complaint was filed against M/s Pak Wheels (Pvt) Limited (the Respondent), with the Commission by Olx Classifieds Pakistan (the Complainant) for alleged violation of Section 10 of the Competition Act, 2010 (the Act). After preliminary assessment, an enquiry was initiated to probe into the matter. The enquiry concluded that the Respondent has prima facie fraudulently used the Complainants registered trademark and copyrights without consent or authorization in violation of Section 10(2) (d) and engaged in distributing false and misleading information to the consumers in violation of Section 10(2) (a), which is capable of harming the business interests of the Complainants in violation of Section 10(2) (b). Upon the advent of the hearing proceedings, at the directions of the Bench, due to the technical nature of evidence, a Technical Committee (the ‘Committee’) was constituted and directed to adduce its expert opinion vis-à-vis technical nature of the evidence available on the record and produce a detailed report within seven days regarding technical aspects of the websites of both the parties. The committee deemed it inevitable that a visit to the Respondents would ensue citing the need for proper verification of technical evidence. Hereafter a commission was constituted with the direction to visit the premises of Respondent and carry out technical analysis. Said commission found that the Respondent was not involved in copying and reproducing advertisement/listing originally posted on the complainants webpage or another information of the complainant. Furthermore, an in depth analysis of the data collected showed no event where the Respondent server were pinged/crawled or communication between both servers was done, nor were any instances of data dumping on M/s Pak Wheels (Pvt.) Limited were identified. Moreover, dry test were performed on the websites of the Complainant and the Respondent for verification of content filtering, it was found that an advertisement containing the trademark of the Complainant on the Respondents website was removed immediately, whereas an advertisement containing the Respondents watermark on the Complainants website was not removed even after a few days. The complainant filed an objection petition, objecting the report on various grounds. Hence, through this order the concerns raised by the complainant in the objection were disposed of. Issues: a) Whether the Commission had power to form/initiate a commission? b) Whether opportunity of hearing was necessary before constituting a commission? c) Whether the commission had acted outside the bounds of its mandate? d) Whether the Commission had power to form/initiate a technical committee? Order: The Commission held that during proceedings under Section 30 of the Act, in addition to exercising its power under Section 33 to constitute commission etc, the Commission may also constitute an enquiry or carryout a search inspection under 34. Moreover, it was held that no procedural unfairness has taken place, even if there was, as has been alleged, it would be inconsequential as the action was taken by the Bench on its own in the public interest in its inquisitorial capacity, merely to collect the facts and information. Furthermore, the Commission noted that the Report under section 33 of the Act to the extent of conducting Dry Test on Complainant’s is excluded from the consideration by us in the instant proceeding as the Report is merely an opinion of experts and not a document within the meanings of Qanoon-e-Shahdat Order, 1984.. Therefore, the objection petition was partially accepted.
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