By Advocate Didar Karim
Intellectual Property Rights (IPR) play a significant role in encouraging innovation, product development and strengthening the economy. Intellectual property has immense value and is an integral asset for businesses – be they international or local.
In the context of recent developments in the Pakistan, it is imperative to enforce the IPR Laws in Gilgit-Baltistan (GB) and there is a need to create awareness about the IPR Laws in the business community as well as in the general public in GB. As a step towards creating such awareness, IPO Pakistan should very seriously consider establishing a regional office in Gilgit to facilitate the GB business community.
It is a sad fact that due to lack of awareness about the IPR Laws, the business community in GB faces difficulties in protecting their goodwill and IPR and are not able to maximize the value of the brands that are associated with their products.
Since GB is a hub for agricultural produce and specially fruits such as apricot, apple, pears, peaches, cherry etc. and such local produce is being sold throughout Pakistan as well as abroad, there is a risk that the value of the origins of such local produce is lost and the brand development of such local produce is not taking place. These local produce are sold under distinctive logos and trademarks, but due to lack of awareness such logos and trademarks are not registered and hence people in GB stand to lose when their logos and trademarks are used without authorisation and the benefit of the goodwill associated with their distinctive logos and trademarks does not accrue to the people of GB but instead is unlawfully usurped by others.
Further, the local produce from GB and their distinctive logos and trademarks, can be registered as Geographical Indications (GIs) by identifying the specific geographical origin of the goods. The geographical indication prevents unauthorized parties from using a protected GI for goods which do not belong to that region and by misleading the public as to the true origin of those specific goods.
Additionally, as the GB economy mostly depends on the tourism industry, it has been observed in the recent past that people who are related to tourism and hotel business have invested heavily and continue to invest huge amounts in this sector without any proper planning and lack of awareness about the IPR Laws. It would be advisable for the investors to ensure that before starting any business pertaining to tourism or hotel industry, the owner/investor should adopt and apply for registration of the trademarks or logos (to be used with their business), in order to protect their IPRs.
Another aspect that would need to be mentioned, is that due to lack of awareness of IPR Laws in GB, the general public is very easily deceived with counterfeit and infringed goods, like food items, cooking oils, soft drinks, soap, shampoo and other cosmetic products, and which goods are most often injurious to health. The fake products are easily available in the local markets using the well-known foreign and local brands/trademarks and packaging style. The fact that the common man in GB is not able to differentiate original goods from counterfeits, emboldens and encourages counterfeiters (operating mostly in the region of Khyber Pakhtunkhwa particularly in Swat and Haripur Industrial State), who manufacture unhygienic products which are sub-standard and such counterfeiters enjoy a free reign in playing havoc with the health and lives of the people of GB.
It is therefore the need of the hour to secure the interests of the people of GB, not only the business community but also the common man, who must be educated and made aware of the laws that provide protection to IPRs which in turn will safeguard their lives and welfare.
In Pakistan Intellectual property laws are designed to protect different forms of subject matter. Intellectual Property Organization of Pakistanwww.ipo.gov.pk was established as an autonomous body on April 8, 2005 under the administrative control of the Cabinet Division for integrated and efficient intellectual property management in the country. The Trade Marks Registry, Copyright Office and Patent Design Office became part of the new Organization under a unified and integrated management system. However, on July 25, 2016, the administrative control of IPO-Pakistan was transferred from Cabinet Division to Commerce Division. The Trade Marks Registry is headed by a Registrar and its office is located in Karachi and also Regional Office situated in Lahore. The reception desks are established in Trademarks Registry, Karachi, Regional Office, Lahore and IPO-HQs, Islamabad. In the recent past the IPO-Pakistan has established IP Tribunals in Lahore, Karachi and Islamabad for the effective and efficient adjudication of IP disputes. Further, the Intellectual Property Organization of Pakistan (IPO-Pakistan) has recently established one-window operations in Karachi and all the three registries including Trade Marks Registry, Copyright Office and Patent Design Office have been housed in a single building to facilitate stakeholders and the IP Practitioners. Furthermore, the IPO-Pakistan has also finalized the bill related to Geographical Protection Bill (“GI Laws”) after due consultation. The bill is likely to be enacted in the tenure of the current parliament.
Further, a brief description about the IPR Laws currently exists and enforced in Pakistan which are also applicable in Gilgit-Baltistan are summarized below:
Intellectual Property and Intellectual Property Rights
- The expression intellectual property embraces a variety of intangible property, which like any other property gives rise to the conjoint needs of legal protection and of legal enforcement of certain rights. These rights are now recognised mainly by special statutes enacted for the purpose and in part also by the common law. As in many other fields, in the case of intellectual property also the intervention of the common law was earlier in point of time and as such drew attention for the need of appropriate legislation.
- The owners of intellectual property are generally entitled to exercise various exclusive rights in relation to the subject matter of IP and these are referred to as “intellectual property rights” or IPRs. Hence intellectual property rights are the rights awarded by society to individuals or organizations over various works and devices recognized for this purpose, such as:
- Trademarks and trade names whether registered or used in the case of marks or names distinguishing the goods or services of one undertaking from those of another. A trademarks is a distinctive sign or symbol which is used to distinguish the products or services of one undertaking from that of another. Although trademarks are powerful instruments in the hands of a trader it is sometimes forgotten that in the process, the trader benefits the public as well by holding himself out in regard to the consistency in quality of his products bearing his trade mark and the maintenance of that standard of quality in other goods which he may provide from time to time under the same trade mark. As the trader maintains consistent quality to protect and enhance his reputation, he also gains in customer loyalty and attracts new customers.
- Copyrights in the case of original literary, dramatic, musical, artistic and literary works now including computer programs as well. Copyright may subsist in creative and original literary, dramatic, musical, artistic works and cinematographic works and records. In these works the author or the owner has exclusive rights to record, perform, copy, reproduce, broadcast and otherwise display the works in which the copyright subsists. Literary works now cover computer programs as well. There are many persons whose livelihood depends upon the recognition of copyright in their works. The copyright proprietor benefits from dealing with a copyright which he has in his works and specially through the grant of licences and receipt of royalty. The promotion of any sort of piracy devastates and eats away into the very fabric of the IPR holders legitimate business in the work and discourages the will to create and share freely and hinders the ability to legitimately and profitably deal with the work through the grant of licences.
- Patents granted in the case of inventions. A patent is the grant of an exclusive right to commercially exploit an invention for a certain period of time provided that the invention is new, involves an inventive step, and is capable of industrial application. Patents are in reality grants of exclusive rights for a limited period as a reward for placing for public inspection at the Patent Office of relevant information regarding those inventions so that all may benefit from the advancement in scientific knowledge, which those inventions represent. Inventions do not come easily, they require intense research over time at considerable cost; the patentee gets exclusive rights from which he may hope to gain a commercial advantage for a limited period while he and others use the advanced scientific knowledge for further research and invention.
- Registrations of industrial designs in the case of new and original designs. An industrial design right protects the form of appearance, style or design of an industrial object. Registrations of design rights are granted for new and original designs of industrial products. These registrations are granted for features of industrial products which appeal to the eye and are not dictated by mechanical needs or principles of mechanics. Such registrations cover the shape or configuration of a product and even a pattern such as that printed on a fabric, provided of course the design is new and original. The exclusive right to use the design for a limited period is granted in recognition of the design of the industrial product being new and original.
- Geographical Indications (GIs) identify the specific geographical origin of a product, and the associated qualities, reputation or other characteristics. They usually consist of the name of the place of origin. For example, food products sometimes have qualities that derive from their place of production and local environmental factors. The geographical indication prevents unauthorized parties from using a protected GI for products which are not from that region and from misleading the public as to the true origin of the product.
- These rights constitute invaluable property:
- they give the owner the exclusive right to use that property or exercise the accompanying property rights or to licence to others to do so and so to earn a remuneration through the owner’s own business activities or through licence fees or even by assigning the property to a buyer for consideration.
- they give the owner the right to approach the court for redress through injunctive and other reliefs including damages in the case of infringement and in the case of copyright and trademarks to avail of proceedings leading to the punishment of offenders in criminal proceedings. THE RATIONALE FOR IP PROTECTIONThe need for laws and judicial proceedings, for the recognition and protection of IPRs, is recognized in every society, whether developed or developing in economic or business terms. The fact that intellectual property has value and often features as a business asset is in itself a sufficient justification for this. Over the course of time, various other justifications have also been advanced, each emphasizing one or more relevant elements.
- Natural rights theory:
- The natural rights theorists essentially propagate that an author or creator of the work has a natural or a human right over the products and fruits of his labour. The lack of protection hence results in a non-recognition of a fundamental human right which a creator has over his creation.
- Public good theory:
- The basic public policy rationale for the protection of intellectual property is that IP laws facilitate and encourage the pursuit of innovation on the one hand and on the other, dissemination of knowledge among the public for the common good.
- Reward theory:
- Innovation needs to be rewarded as it encourages creative efforts through the recognition of exclusive rights in creative works and by providing protection of those rights.
- The theory of protecting investment or providing greater incentive to invest in business. In this regard:
- It has to be borne in mind that probably most products, can be copied at a fraction of the cost, time, labour and effort it took to create or invent, develop and market them. If a product takes considerable effort, ingenuity and research, but can be copied easily, there is unlikely to be a sufficient financial incentive from the concerned individual’s point of view, to devote resources towards the necessary research and invention and development of inventions and other creative works.
- Trademarks and trade names are developed and popularised at considerable cost. In this case also a new entrant using the same or similar deceptive trademark profits improperly and illegitimately and causes loss to the proprietor by deceiving the public into believing that it is the proprietor who is connected with the goods in the course of trade. The proprietor not only suffers a loss of trade to that extent in the genuine product but also suffers through damage to his reputation from the consequences of the infringer’s failure to maintain the quality and standards of the genuine products.
- In order to encourage creative activity it is necessary to provide a legal framework and judicial processes that will enable the inventor or developer not only to recover his investment but to profit from his efforts.
- In the absence of a suitable legal framework for protection of IPRs and for redressing grievances through the process of legal proceedings, the required investment of time and effort would not be justified which in turn would lead to a loss to the society. Besides other losses, talented and creative individuals would also be effected and would migrate to other societies.
- WHAT IS THE NEED FOR PROTECTION OF IPR LAWS AND THE MEASURES TO BE TAKEN AT GB LEVELS?
- Ensure effective enforcement of IPRs in the region
- Education re IPRs on promotion and protection
- Build indigenous capacity
- Increase levels of education and technical expertise
- Strengthen internal markets and enable them to face competition
- Take special training and create awareness in this specialized field.
- Interact with persons performing similar functions in different local agencies as well as in different jurisdictions.
- Legal fraternity as well as judges take advantage of offers of training by WIPO and IPO-Pakistan.
- Create awareness at the grass roots level and educate re the importance of IPRs and the role of intellectual property
- Protection and enforcement thereof needs to be brought to the attention of the people of GB on a mass scale.
- Involve to help educate people on the value of IPRs and help create and nurture a realization at an individual level, of the need to protect, enforce and promote such IPRs in the interests of the individual as well as the community at large.
- Seminars and Workshops should be conducted with the collaboration of GB Government and NGOs in order to create awareness about the IPR Laws.
The contributor is an Associate at the Vellani & Vellani law firm based in Karachi.