Transcript ANTI-COUNTERFEITING IN PAKISTAN

ANTI-COUNTERFEITING IN
PAKISTAN
BY
KHURRAM GUL GHORY
Attorney-at-Law
Counterfeit
• A 'counterfeit' is generally an article which
is intentionally made to look like an original
article so that customers are deceived into
buying the counterfeit for the original.
Counterfeiting
• has been defined under Section 28 of
Pakistan Penal Code. It is causing one
thing to resemble other things; and
intending by means of that resemblance to
practice deception or knowing it to be
likely that deception will thereby be
practiced.”
• Thus, if one thing is made to resemble
another thing and the intention is that by
such resemblance deception would be
practiced or even if there is no intention
but it is known to be likely that the
resemblance is such that deception will
thereby be practiced there it is
counterfeiting.
AIR 1960 SC 669
• Ordinarily, counterfeiting implies the idea
of an exact imitation; but for the purpose of
Penal Code there can be counterfeiting
even though the imitation is not exact and
there are differences in detail between the
original and the imitation so long as the
resemblance is so close that deception
may thereby be practiced.
• As a rule, counterfeits are significantly less
expensive than the original
• The business houses, in general, do not
address the cost-pricing issue adequately.
Unfortunately, higher pricing when linked
with barriers to access tends to attract the
consumers to use counterfeit or the
pirated goods to save on money.
Why Counterfeit?
• Counterfeiting comes from the problem
that needs to be noticed and understood.
• It is the higher pricing difference
between the original and the counterfeit
version
that
gives
rise
to
counterfeiting.
Extent:
• Counterfeit and pirated products are being
produced and consumed in virtually all
economies, with Asia emerging as the single
largest producing region. In recent years there
has been an alarming expansion of the types of
products being infringed, from luxury items (such
as deluxe watches and designer clothing), to
items that have an impact on personal health
and safety (such as pharmaceutical products,
food and drink, medical equipment, personal
care items, toys, tobacco and automotive parts).
Few Examples
• "Counterfeiting" is a virus that tends to erode the
brand value of a trade mark i.e. the perception of
a brand in the minds of consumers.
• As a brand starts being counterfeited slowly but
surely, the perception of the branded product
starts to erode and when customers see a
branded product in the market or in the
possession of other customers they wonder
whether it is genuine or counterfeit.
Kinds of counterfeiting
• Domestic Counterfeiting
• Foreign Counterfeiting
• Refilling
Factors contributing to Counterfeiting
•
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•
•
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Greed
Cost of Original Product
Short Supply of Original Product
Product kind, whether easily reproducible
Customer approach
Demographic environment. Densely populated
areas with lesser regulatory checks are more
akin to counterfeiting.
• Ineffective punishments
Solution
• products that are prone to being counterfeited need to be immunized
by packaging the products or using tags or other markings on them
which are not possible to duplicate and giving wide publicity and
information to customers and the trade about these identification
signs.
• Likewise, newer technologies are available which are not
susceptible to even digital reproduction. For instance packaging
films have been developed for pharmaceutical products with
embedded images (TM) which are product specific and
manufacturer specific. Use of these packaging films selectively will
eliminate counterfeiting and ensure that only genuine products are
available to patients.
• Manufacturers should find means to educate the
public against counterfeit products. They should
provide tips on the ways to distinguish the fakes
from the originals. Articles and pamphlets are
some of the ways of doing that. Serial numbers
are alphanumeric numbers which can be used
for identification. These unique numbers can
help sellers identify the fakes.
• Effective policies and strategies Anti-counterfeiting policies and strategies
are either ineffective or are not used
properly by government officers. This
gives counterfeiters enough time to get
away or lighter punishments if they are
caught.
• Since it is the manufacturers who suffer
the most when counterfeiters are given a
free pass, it is their responsibility to
restrain the activities of the counterfeiters
at any cost.
• The harm is obvious, so I suggest we
create a public awareness what the
counterfeiting is and what harm is it
causing to our society in terms of lives,
values, and the revenues. To keep the jinni
in bottle we have to apply a tighter lid to
the bottle.
• In brief, we all need to engage a
meaningful association. The biggest threat
of present day is the digital piracy, which
according to a study carried out by Mark
Monitor estimated global impact of US
Dollars 200 billion annually.
Another dark side
• Further,
according
to
European
Commission,
International
Criminal
Organizations, involved in counterfeiting
production, exploit their work force; often
largely consisting of children who are
locked up in cramped conditions without
having any concern of their safety or of
Human Rights.
Legislation
Pakistan's legislation has been amended periodically to
bring it into line with the requirements of the Agreement
on Trade-Related Aspects of Intellectual Property Rights
(TRIPs).
Relevant provisions have also been incorporated into or
reflected in other laws, such as the Customs Act 1969,
the Drugs Act 1976, the Federal Investigation Act 1974
and the Penal Code, in order to strengthen the
authorities' hand in enforcing IP rights.
• Presently, the relevant laws that cater to counterfeiting
under civil and criminal jurisdiction are;
• i)- Trade Marks Ordinance 2001
(Civil Remedy)
• ii)- Copyright Ordinance 1962 (Civil / Criminal Remedy)
• iii)- The Patent Ordinance 2000
(Civil Remedy)
• iv)- Registered Design Ord. 2000
(Civil Remedy)
• v)- Pakistan Penal Code 1886
(Criminal Remedy)
• vi)- Customs Act 1969
(Criminal Remedy)
• vii)- The Drugs Act 1976
(Criminal Remedy)
• Needless to point out, that private parties may
avail remedies through Courts of law under Civil
Laws in the shape of Permanent Injunctions,
Damages and Rendering Accounts for profits.
• Whereas, state cases are registered for
committing offenses under criminal laws, as
aforesaid and punitive measures are taken
against counterfeit under said laws including but
not limited to arrest, detention, imprisonment,
confiscation of goods, imposition of fines and
heavy penalty.
Role of Government
• The Parliament in January 2010 adopted a resolution
pertaining to the sale of spurious drugs thereby inviting
government to take all possible measures to curb the
activities of those involved and to apprehend the culprits
and to give out exemplary punishments. It was debated
during the course in the house that though there are
numerous laws in the country to curb the menace of fake
medicines and the actions against quacks, yet the nonimplementation of those laws meticulously has given free
hand to the unscrupulous elements. The House adopted
the resolution with recommendations to make laws more
stringent and hassle free for the enforcement agencies
to uproot the social evil. The House strongly
recommended introduction of strict punishments for
those found guilty of carrying out business of counterfeit
drugs.
• Significant anti-counterfeit Operations
undertaken by Law Enforcement
Agencies in Pakistan:
(FIA )- here I shall render specific cases of incidence.
• i)- Pfizer Products Inc. USA through its Attorney in Pakistan
initiated a case against a large scale sale of a counterfeit of its well
known drug VIAGRA, LIPITOR & CYTOTEC in local market at
Karachi. After initial investigation by its attorney, a complaint was got
registered with the Deputy Director, Federal Investigation Authority,
Karachi who in accordance with applicable laws and in compliance
of the official formalities, sought permission from the relevant
authority and conducted raids at local wholesale medicine market.
That during the course of investigation large quantities of counterfeit
drugs were got recovered. Likewise, FIA conducted a similar action
against the printing press involved in printing of the counterfeit
packaging material for said drugs and recovered bundles of
counterfeit / pirated / fake printed material together with dyes and
plates used for said printing under the provisions of Copyright
Ordinance 1962 that empowers Police to take direct cognizance of
an offence upon compliant. Accordingly, a case under was got
registered. The investigation in the case is underway to apprehend
the main culprits involved in the case.
• FIA conducted raids in the Urdu Bazar,
Lahore and have confiscated pirated
copies of Oxford University Press
(OUP) books and arrested the persons
involved in the commission of offence.
Thousands of illegal copies of text books
have been confiscated by the authority
during the week long operation. The case
against the accused persons has been
lodged under the Copyright Laws.
Acknowledgement
• References:
• Dr. Mohan Dewan who is a Trade Mark
Attorney and Patent Agent From India.
• I am thankful to my Associate Mr. Hakim
Ali Chohan for his worthy assistance
THANK YOU