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

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