Background of the case:

The Commission received a complaint against Anchor City Gwadar (SMC-Private) Limited (the “Respondent”) for violation of Section 10 of the Act. Wherein, it was alleged that the Respondent had commenced its housing/real estate development business by adopting a trade/service mark deceptively similar to the registered trade/service mark of the Complainant.

The Commission initiated an enquiry under Section 37(2) of the Act in the matter, wherein it was noted that the trade mark being used by the Respondent (“Anchor City Gwadar”) was being done without obtaining any trademark registration from the relevant authority. The impugned action of the Respondent was further held to tantamount to not only being capable of harming the business interest of the Complainant but also tends to mislead the consumers about the character, properties and place of production or service. The enquiry therefore concluded that it could easily be established that the Respondent, by fraudulently using the registered trademark, had unfairly enjoyed the goodwill and reputation associated with it.

Issues:

i) Whether the Commission can proceed in the matter where proceedings under Trade Marks Ordinance, 2001 are pending before any tribunal or court of law?

ii) Whether the Respondent has resorted to the deceptive marketing practices in violation of Section 10 of the Act? Which would include a sequential determination of the following:

a) Whether ‘Anchor Town’ and the symbol of device of Anchor is the registered trademark of the Complainant;

b) Whether the trade mark of the complainant is being used by the Respondent for marketing and promotion of its real estate development business.

c) If yes, whether the use of the Anchor name and symbol of device of anchor by the Respondent constitutes a deceptive marketing practice in terms of Section 10 of the Act.

Foreign Judgments:

1) Hoffman-La Roche [1978] E.C.R 1139

2) Philips Electronics Nv v Remington Consumer Products Ltd [2002] ECR 1-0000

3) Arsenal Football Club v. Matthew Reed [2003] RPC 9

4) Loendersloot [1997] E.C.R 1-6227

Order:

No one appeared on behalf of the Respondent, and therefore the Commission proceeded ex-parte.

The Commission further stated that the proceedings pending before the Honourable Sindh High Court under the TMO Ordinance pertained to the violation of the Trademark Ordinance, while the proceedings before the Commission were for deceptive marketing practices, which were distinct in nature and not conflicting,

The Commission further opined that Anchor Town and the anchor symbol is a registered trademark of the Complainant, and the material placed before the Commission makes it clear that the Respondent had used the name Anchor and the anchor symbol on the marketing and promotional material for its real estate project, namely Anchor Town Gwadar. Use of these words and symbol can easily deceive an ordinary consumer and he / she can assume that the projects in Islamabad (of the Complainant) and in Gwadar (of the Respondent) are the same.

The companies also operate in the same business sector (housing and real estate development schemes). Had the undertakings been in different business sectors, then the benefit of the doubt could have been given to the Respondent. The Commission observed that goodwill and trust is especially important in sectors such as real estate where large amount of money and savings are invested by consumers.

The Commission in its order noted that the Respondent despite having the opportunity did not file and reply or attend any of the hearings in the instant matter which was tantamount to deliberately obstructing the proceedings of the Commission. Keeping all this in mind a penalty of Rs. 50,000,000/ - (Rupees Fifty Million Only) was imposed. Moreover, the Respondent was further directed to inform the public at large that their real estate project is in no way related to that of the Complainant.

Current Status:

In the instant matter, an appeal has been filed by the Respondent before the Competition Appellate Tribunal, however, no stay order has been granted pertaining to the directions of the Commission.