Background of the case:

The Competition Commission of Pakistan (“Commission”) received a complaint against M/s Irshad Trading Corporation (“Respondent”) wherein it was alleged that the Respondent was wrongfully claiming to be a joint-venture partner of the Complainant, using a trademark for their products phonetically, textually and graphically identical to that of the Complainants and was wrongfully categorizing its product in respect of quality, durability, capacity and food grade material.

The Commission after a preliminary probe initiated an enquiry to probe into the matter. The enquiry concluded that the Respondent had engaged in parasitic copying/copycat packaging as well as fraudulent use of the Complainants trademark, firm name, product labelling and packaging. The enquiry report in its entirety concluded that the Respondent had acted in contravention of the Competition Act, 2010, in respect of all the allegations contained within the Complaint.

Issues:

a) Whether the word “Super Tuff” is a trademark of the Complainant?

b) Whether the Respondent has violated provisions of Section 10 of the Act?

Foreign Judgments:

i) Hoffman-La Roche [1978] E.C.R. 1139, para 7, and Philips Electronics Nv v Remington Consumer Products Ltd [2002] ECR 1-0000

ii) American Home Products Corporation, A Delaware Corporation Petitioner, v. Federal Trade Commission, Respondent, 695 F.2d 681 (1982-83 Trade Cases 65,081)

iii) Federal Trade Commission v. Direct Marketing Concepts, Inc., 569 F. Supp. 2d 285 (2008)

Order:

The Commission’s order noted that Irshad Trading fraudulently opted to free ride on the trademark, trade name and patented products of Polycon and falsely claimed to be the Joint Venture Partner despite termination of its distribution agreement. The order laid emphasis on the importance of written agreement between the parties doing business together.

In view of the commitment by Irshad Trading to avoid such deceptive marketing practice in future, the Commission took a lenient view and imposed a penalty of PKR 5 million while directing the company to desist from using Polycon’s trademark, trade name and products.

Current Status:

In the instant matter, the Respondent has filed an appeal before the August Competition Appellate Tribunal, however, no stay order has been granted in this regard.