Protecting intellectual property rights

Intellectual property rights (IPRs) give the owners of ideas, inventions and creative expression the right to exclude others from access to or use of their property without the creators' permission or payment of royalty.
In a larger sense, IPR promotes individual initiatives and organisations by rewarding the owners with recognition and financial gain.
IPR protection also acts as a shield to hinder the efforts of unfair competitors, such as counterfeiters, to use similar distinctive signs to market inferior or different products or services. The system enables people with skill and enterprise to produce and market goods and services in the fairest possible conditions.
Trademark protection is enforced by the courts and in most countries, have the authority to block trademark infringement. This is only possible if the law of the land and the mechanism for enforcement and implementation comes to the rescue of the brand owner safeguarding its right through a speedy and foolproof process.
In Pakistan, although the system of trademark registry is in place since before the independence, but sincere efforts to protect the rights of the trademark owners has not been taken into consideration. Even the consumer is unaware of its rights, the benefits of IPR and long-term implications on the market and the society.
The Pakistani laws on Intellectual Property Rights includes the Trademarks Ordinance 2001, Trade Mark Rules 2004, the Copyright Ordinance 1962, as amended by the Copyright Ordinance 2000, Patent Ordinance 2000, Patents amendments (Ordinance) 2002, Industrial Design Ordinance 2000, Patents and Designs (Amendment) Act 1997 and Registered Layout Design of Integrated Circuits Ordinance, 2000.
The following are some of the ways through which brand infringement is being done in the country, for instance:
INFRINGEMENT: unauthorized use of the same or similar mark on the same or similar goods ie, an infringement using the trademark PAINTEX (a well known paints brand).
COUNTERFEITING: unauthorized use of identical mark on identical product type (often of inferior quality), usually with some degree of intent to deceive the public like PAINTEX or BAINTEX or PAINTUX, which is almost identical to PAINTEX.
UNFAIR COMPETITION: unauthorized use of the same or similar mark in any manner that falsely suggests a connection with the legitimate trademark owner.
Adopting the colour scheme design and getup of a label. Clever imitators may adopt a different brand name say GLORY but may use an identical or closely similar colour scheme design and get up of the genuine PAINTEX product.
As we can see there are laws in place to provide IPR protection to the stakeholders but there are various factors, which hinder the true implementation of the IPR in the country.
Due to lack of awareness about product attributes, the customers are at the mercy of the wholesalers and retailers. Contractors and third party buying is also dicey, as for better profit margins, they tend to supply counterfeit products at the cost of genuine products benefiting from the customers lack of awareness or poor quality check and auditing methods.
Illiteracy amongst the general public is a boon for the counterfeiters. They get away by promoting their spurious products, playing with the intellect of the general public, especially in small towns and remote areas.
The customer is unaware of its rights and is therefore the most aggrieved party amongst all the stakeholders. Apathy, and in the absence of organised and effective consumer societies, the seller on the one hand exploits the customers, and on the other, inflicts financial and credibility loss to the renowned brand owners.
The cumbersome and lengthy judicial process in the country discourages the brand owners to initiate legal processes. The counterfeiters take full advantage under the condition and with the connivance of the corrupt amongst the law enforcers continue manufacturing and marketing spurious products unabated.
In view of the above, the only remedy for the brand owners is to take counter-measures in order to keep their brand credible and alive. These include creating awareness of the product attributes through continuous and long-term campaigns.
Create packaging of material and design, which are difficult and expensive to emulate. Develop and incorporate anti counterfeit devices, like holograms, emblems or coded identification marks to differentiate a genuine from a counterfeit product.
Appoint and support a network of distributors and agents with credible record in the market on ethics, financial dealings and obligations.
With the development of organised professional and private security agencies in the country it is now possible to unearth the spurious manufacturers, raid their manufacturing sites and apprehend the culprits by involving the local police and other law enforcement agencies.
This is now becoming a norm and with the involvement of professional security agencies an opportunity has been provided to identity the counterfeiters and bring them to justice.
Major brands are the main revenue generators in the provincial and federal level. Counterfeit product manufacturers neither pay tax on their income nor any other levies like (GST and are therefore depriving the country and ultimately its people of the revenue, which could be generated through the marketing and sale of genuine products.
The country is losing around Rs 1.35 billion per annum in revenue because of the counterfeiting of popular cigarette brands, while the industry loss is estimated to be over Rs 300 million.
The lubricants' industry estimates a loss of Rs 1.2 billion through the sale of fake lubricants to the industry and Rs 1.6 billion loss to the government in terms of revenue. The total size of the legitimate lubricant market is close to 330 million liters, which is growing at the rate of 5% annually, while the sales of counterfeit lubes is around 72 million liters. The sales of fake lubricants is said to be growing at 10% every year.
According to Business Software Alliance (BSA), 83 percent of the software used in Pakistan is pirated which has resulted in $16 million loss to the information technology industry.
This figure does not include the piracy of films and songs in the country. Famous singers and writers in Pakistan complain that the piracy of their works is rampant. Microsoft in Pakistan has estimated a total loss of over $125 million to the industry on account of software, records and music and motion pictures.
With an increase in counterfeiting and IPR violations, as indicated earlier, the government also confronts substantial revenue losses, as most of the counterfeiters work "underground" and are out of the tax net. Further, increase in the sales of counterfeit goods results in the decrease in sales of genuine goods.
The genuine goods manufacturers generally do business in an organised manner and pay their taxes, thus contributing to the national exchequer. Drop in sales and revenues, results in the decrease of the government's revenue through taxes.
SOME RECENT EXAMPLES OF BRAND INFRINGEMENT OF RENOWNED MARKS:
-- adoption of ICI's KID ZONE and colour scheme of the design of the label trademark by EPI Paints, Lahore.
-- adoption of POWERTAC and PCI logo by Power Chemical Industry, Faisalabad. The trademark POWERTAC was similar to ICI's CALATAC Brand. The contravener also adopted the PCI logo, which was similar to the ICI roundel.
In both the above cases, injunctions were granted by the courts against the offenders in favour of ICI and the infringed products are out of the market.
The above examples and measures taken by the popular brands shows that the manufacturers under the circumstances are required to take proper measures to safeguard their products continuously. Stringent measures by the government and the brand owners' pursuance may bring a change and can only make possible the implementation of the IPR in the country.
The other aspect of educating the customers and the society to refrain from counterfeit products is also the key for IPR implementation.
Pakistan has been placed on the United States' IPR watch list called 'Super 301 list' as one of the countries where IPR enforcement is not satisfactory.
Foreign investors are hesitant to invest in a country where effective protection of their IP rights is not guaranteed. This restricts the flow of technology transfer to the country, as foreign companies become reluctant to introduce new products, research-based inventions due to threat of unabated infringement resulting in stagnation of the business environment, loss of jobs impeding the general development of the country.