Background of the Case:

The Commission received a formal complaint from M/s Shajarpark (Pvt) Limited (“Shajarpark”, “Complainant”) alleging that M/s Ahmed Pasha Collection, tailor and fabrics (Respondent No.1 ), M/s Amir Cloth House (Respondent No.2), M/s Ramzan Fabrics (Respondent No. 3), M/s Pasha The Designer – Fabrics (Respondent No 4), M/s Sufi Cloth House (Respondent No.5), M/s Baba Plastic (Respondent No.6), M/s Ahmed Plastic & Dabba House (Respondent No.7) and M/s Kauser Brother Plastic Corner (Respondent No.8) (Collectively the “Respondents”) were fraudulently using Shajarparks trademark and logo in packing, marketing, promotion and selling of their products which was misleading the consumers in contravention of the Competition Act, 2010 (the “Act”).

The Enquiry Committee examined whether the Respondents had contravened provisions of Section 10 of the Act. It was concluded that the Complainant was the rightful owner of the trademark “Pasha Fabrics” and owned the copyrights for its logo and various label designs and the Respondents were fraudulently using the Complainants trademark and labelling and packaging on similar products.

Therefore, the Respondents were engaged in the dissemination of false and misleading information to the consumer’s detriment and were causing harm to the business interest of the Complainant. Therefore, the Respondents, prima facie, had undertaken deceptive marketing practices in terms of the provisions of clauses (a), (b) & (d) of sub-section (2) of Section 10 read with sub-section (1) of Section 10 of the Act.

Issues:

I. Whether or not the Complainant’s claim qua the trademark ‘Pasha Fabrics’ and associated trade dress is distinctive in the relevant market is valid for the purpose of Section 10 of the Act?

II. Whether or not the Respondents have engaged in deceptive marketing practices in contravention of Section 10(2)(a), 10(2)(b) and 10 (2)(d) of the Act?

Foreign Judgments relied upon by the Counsels:

Colgate Palmolive Co v Anchor Health & Beauty Care (Pvt.) Limited (2003) PTC 478 Del

Order:

The Commission opined that there is no requirement in the context of Section 10 of the Competition Act that the trademark, firm name or labelling and packaging of goods or services should be registered with the designated authority. In case of registration however, the Commission would presume that the same are eligible for protection under Section 10 of the Competition Act without any further investigation regarding their validity.

The Commission noted that in the present case, the Complainant had provided documentary evidence and after a review of the same, the Commission was of the considered view that the Complainant had a legally enforceable claim and could seek remedy against under the provisions of Section 10 of the Act.

The Commission held, after a perusal of the available evidence, that the Respondents had been engaged in the unauthorized / fraudulent use of the Complainant’s trade name and trade dress in contravention of Section 10 of the Act, and that it was highly likely that the consumers would be deceived / misled by the fraudulent depictions by the Respondent of the Complainant’s trademark, trade dress and packaging material.

The Commission imposed a penalty on Respondent No 1, Respondent No.2, Respondent No.5 and Respondent No.8 of Rs. 500,000 each after considering their commitment not to repeat the infringing conduct.

Respondent No.3, Respondent No.6 and Respondent No.7 failed to appear before the Commission and plead their case, therefore the Commission proceeded ex-parte against them. A fine of Rs 750,000 was imposed in conclusion of the ex-parte proceedings on each of the Respondents who failed to appear. Lastly, due to a lack of evidence to proceed adversely in respect to Respondent No.4, no action was taken in regard to the Respondent.

Current Status:

The Undertaking in the instant matter has filed an appeal before the Competition Appellate tribunal, however, no stay/suspension order has been granted.