24/2020 M.A. MUHAMMAD SHAH KAKAR THR ATTORNEY AHMED SHAH (Appellant) V/S INTELLECTUAL PROPERTY TRIBUNAL AT SINDH & BALOCHIS (Respondent)
Sindh High Court
Bench: Hon'ble Chief Justice Mr. Justice Muhammad Shafi Siddiqui(Author)
Order Date: 03-JUN-20
SRO 170(I)/2017 dated 17.03.2017 is for "imported goods only" and was not applied to parallel or grey market imports and de-minimis imports. Powers to take action, detention, seizure, confiscation of goods imported into or taken out of Pakistan were/are always available with the customs officials and it is not that SRO 170(i)/2017 that has empowered them, it only set the process to be initiated by custom officials in relation to goods being imported. What was amended by virtue of SRO 768(I)/2014 is also very material. In Section 3CC and 3E of Customs Act, 1969 formation of the Director General of Intellectual Property Rights Enforcement was redesigned along with its functions, jurisdiction and powers. In the present case Tribunal could only pass order to the extent of trade mark being an infringed one or otherwise and to restrain it from being violated. The Procedural action of custom officials was not questioned independently by respondent. Once the effect of infringement was determined by tribunal the customs officials would definitely have followed it. Color and color scheme also at time claimed to be an inventive one but that is not the case here as no one has claimed livery or color scheme or get up to be a mark of distinction under any intellectual property rights. Both parties are contesting over one mark i.e Tabiat and no one has claimed any exclusive right over livery or dress up of mark. So everything is a disclaimer except "Tabiat". If there are deceptive liveries of common product like rice, with one trade mark "Tabiat" in the absence of a right claimed under the liveries, the buyer would definitely get confuse and jump to some other brand as a natural course. In terms of Section 5(2) of Trade Marks Ordinance, 2001 goods even if not meant for a local consumption but only to enter the port for onwards journey, would mean the use of mark within jurisdiction. Unless goods in transit are defined otherwise, only aforesaid meaning is deducible. Construction of our Trade Mark Ordinance, 2001 is also based on same scheme and there is no inconsistency as far as framing of relevant provision trade mark is concerned. The word import or export (exclusively or inclusively) not defined under the law in hand differently that is dealing with goods in transit. The case of the appellant is on better footing since the attempt is made to export the goods from the territory where the mark is registered The word "use" as explained above is also applicable to goods "for export only" and hence Section 5(2) read with section 40 of Trade Mark ordinance 2001 would be interpreted accordingly as use within territory of Pakistan.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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