Passing off another’s goods as own unlawful

ISLAMABAD:The top court has held that it was unlawful for a trader to pass off his goods as those of another by using the same or confusingly similar mark, name, or get-up.
“As nobody has any right to represent his goods as the goods of somebody else, it is unlawful for a trader to pass off his goods as the goods of another by using the same or confusingly similar mark, name, or get-up,” a 13-page judgment authored by Justice Syed Mansoor Ali Shah read.

Justice Shah was hearing a matter regarding interpretation of the phrase ‘fraudulent use of another’s trademark, firm name, or product labelling or packaging’ as used in clause (d) of Section 10(2) of the Competition Act 2010 as well as clause (a) of Section 10(2)(a) of the same Act, which includes ‘distribution of false or misleading information that is capable of harming the business interests of another undertaking’ in the prohibited deceptive marketing practices.

The judgment observed that there was nothing in the language of Section 10(2)(d) of the Act that the meaning of the word “use” had been restricted therein to the use of the same trademark, firm name, or product labelling or packaging.

“We, therefore, hold that the word ‘use’ in Section 10(2)(d) of the Act includes the use of trademark, firm name, or product labelling or packaging which is confusingly similar (also referred to as deceptively similar) to that of another undertaking,” it added.

Briefly, the facts of the case are that K&N’s Foods (Pvt) Limited filed a complaint against A Rahim Foods (Pvt) Limited with the Competition Commission of Pakistan,.

K&N’s Foods claimed that Rahim Foods was involved in deceptive marketing practices in contravention of the provisions of Section 10 of the Act.

In the complaint, K&N’s Foods mainly alleged that Rahim Foods was copying its product labelling and packaging for the sale of its several frozen and processed meat products.

It also alleged Rahim Foods had copied its trademark term “Combo Wings” for one of the products, that was, the chicken wings.

Two officers of the commission conducted an inquiry into the matter.
After collecting and considering the respective evidence of the parties, the inquiry officers submitted their report to the commission, confirming the allegations and proposing the initiation of proceedings against Rahim Foods under Section 30 of the Act.

The judgment noted that Act aimed to address the situations that tend to lessen, distort or eliminate competition, such as (i) actions constituting an abuse of market dominance, (ii) competition restricting agreements, and (iii) deceptive marketing practices.

“Free and Fair competition is a fundamental concept in economics that involves providing a level playing field for all market participants,” it stated.
“It is based on the principles of a free market where businesses compete on equal terms, and consumers make decisions based on price, quality, and preference. Free and fair competition is competition that is based on quality, price, and service rather than unfair practices. Predatory pricing, competitor bashing, and the abuse of monopoly-type powers, for example, are unfair practices,” the judgment further read.

The court observed that when competitors could compete freely on a “level playing field”, economies were more likely to thrive.

“On the other hand, unfair competition is using illegal, deceptive, and fraudulent selling practices that harm consumers or other businesses to gain a competitive advantage in the market. However, free and fair competition is encouraged and enforced through legislation and regulation to promote economic efficiency, innovation, and consumer welfare,” it added.

The verdict read that violations of fair competition principles could lead to legal consequences, penalties, or other corrective measures.

“Competition is not only healthy for businesses, but pivotal for innovation. It sparks creativity and nurtures transformation and progress,” it continued.
The court noted that Article 18 of the Constitution provided that every citizen shall have the right to conduct any lawful trade or business.

It further observed that clause (b) of the proviso to Article 18 stated that nothing in this law would prevent the regulation of trade, commerce or industry in the interest of free competition.

“Therefore, regulation in the interest of free competition actualises the fundamental freedom guaranteed under the Constitution to conduct lawful trade and business. As free and fair competition ensures freedom of trade, commerce and industry and therefore forms an intrinsic part of the fundamental right to freedom of trade and business guaranteed under Article 18 of the Constitution. The preambular objective of the Act is to ensure ‘free competition’ in all spheres of commercial and economic activity to enhance economic efficiency and to protect consumers from ‘anti competitive behaviour’,” it read.

The SC noted that the term “free competition” envisaged by the Constitution and aimed to be ensured by the Act, therefore, meant a competition through fair means, not by any means.
“To ensure fair competition in trade and business, Section 10 of the Act has prohibited certain marketing practices by categorising them as deceptive marketing practices, and Sections 31, 37 and 38 of the Act have empowered the commission to take appropriate actions to prevent those practices. With this constitutional underpinning in the background, we now proceed to examine the meaning and scope of clauses (a) and (d) of Section 10(2) of the Act,” the judgment stated.

The court noted that the provisions of Section 10(2)(a) of the Act did not mention this requirement.
“Conversely, the ‘malice’ of the defendant [that] is not required to be proved in a common law action for passing-off, has been made relevant in the provisions of Section 10(2)(d) of the Act by using therein the expression ‘fraudulent use’. Goodwill, misrepresentation and damage are the three essential elements of a passing-off action under common law, which are usually referred to as its ‘classic trinity’, and the liability for passing-off under common law is not affected by the defendant’s state of mind,” it added.

The judgment observed that the expression “fraudulent use” in Section 10(2)(d) had made the intention of the defendant (user of another’s trademark, firm name, or product labelling or packaging) also relevant for holding them liable under the Act.

“However, as the Act has not defined the term ‘fraudulent’ and thus not given any particular meaning to it, the expression ‘fraudulent use’ in Section 10(2)(d) is to be understood in its ordinary sense of ‘intentional and dishonest use’ in contrast to a mere ‘mistaken or negligent’ use,” the verdict read.

The judgment noted that a trader might not sell their goods under false pretences, either by deceptively passing them off as the goods of another trader so as to take unfair advantage of his reputation in their goods, or by using a trade sign the same, or confusingly similar to, a registered trademark.

“The misrepresentation alleged in a passing-off action is therefore also judged on the same or confusingly similar standard as it is done in a trademark-infringement action. Further, the criterion to determine the confusing similarity (also referred to as deceptively similar), which is described hereinafter, is also common in both these actions,” it continued.

“K&N’s Foods, which may have been aggrieved of the decision of the tribunal on the point of non-applicability of the provisions of Section 10(2)(a) of the Act, has not impugned the decision of the tribunal by preferring an appeal to this court, and it is the commission that has challenged the decision of the tribunal on that point by filing the appeal,” the judgment read

The court observed that though the role of the commission under the Act was primarily of a regulatory body, it was quasi-judicial as well under some provisions of the Act.

“The provisions of clauses (a) and (d) of Section 10(2) of the Act, 24 in our view, envisage the quasi-judicial role of the commission while deciding upon the divergent claims and allegations of two competing undertakings. And, as held by this court in Wafaqi Mohtasib case, an adjudicatory body deciding a matter in exercise of its quasi-judicial powers between two rival parties under a law cannot be treated as an aggrieved person if its decision is set aside or modified by a higher forum under that law or by a court of competent jurisdiction and such [a] body thus does not have locus standi to challenge the decision of that higher forum or court,” it added.

“The appeal filed by the commission in the present case against the decision of the tribunal setting aside partially its quasi-judicial order is therefore not maintainable,” the judgment observed.

The court also rejected Rahim Foods’ petition in the matter.

Domestic Violence Stories and Repercussion of Laws

What is domestic violence?

The definition of “torture” in the legal sense involves deliberate infliction of pain. According to human rights activists, domestic violence is of various types. If someone from a family, including husband, father, and brother, physically abuses a girl or a woman, it is deemed as domestic violence. If a husband doesn’t talk to his wife, doesn’t react, or keeps his wife deprived of her basic support or position, it is considered a form of violence. Under the Domestic Violence (Prevention and Protection) Act, 2009, men cannot physically torture women, children, and domestic employees.

In Pakistan many women protection laws have been introduced against Violence specifically to address the issue of domestic violence; under these laws and special women’s protection cells have been established in police stations Sindh as well as in Punjab. These laws of the State provided the strong shelter and veil to the women that a woman can’t be forced to leave the house where she is living; it is her right to continue to live there. If her husband forces her to leave the house, she can make an application to restrain him under the laws and if the husband is involved in violence, wife has the right to expel him from the house until the matter is resolved to both parties’ satisfaction.

Neelum, a resident of Rawalpindi, along with her child Zayan, is currently living at a private shelter home. Neelum and Zayan were shifted there due to a risk to their lives.

Psychologists are of the opinion that children get affected by the environment in which they are brought up, and it leaves a life-long impact on their psychological wellbeing and personality.

In Pakistan, Zayan is not the only child in this plight. Sadly, there are hundreds of thousands of children like him who are exposed to various types of violence and abuse. Sometimes, their traumas lead them to violence later in their lives. Rawalpindi Division SSP (Investigation) Ghazanfar Ali Shah says that a large majority of offenders of such type of violence and abuse are themselves victims of similar traumas.

On average, in Pakistan, eight children were abused every day in one form or the other; 51 percent of the victims are girls and 49 percent boys. The report states that 2020, compared to the previous year, saw a four percent increase in child abuse cases.

Psychologists say that children who witness domestic violence are at a serious risk to long-term physical and mental health problems. Children who witness violence between parents may be at a greater risk of being violent in their future relationships. Mental health experts say that young children who experience spousal violence are prone to unsavoury habits such as thumb-sucking, increased crying, and whining.

According to Neelum, she was a victim of perpetual violence since her marriage to Irfan Hussain. Her husband started beating her just two weeks after their marriage, and after that, it become a routine affair. She was not even spared during her pregnancy, adding that it was a special blessing of the Almighty that she could survive her pregnancy. Violence didn’t end even after childbirth. It happened two weeks after her child’s delivery, causing rupturing of stitches, leading to months-long complication and pain. Her husband has issued threats against her in case she fails to return to him. She said that he even lit a fire outside her parents’ home as a warning of his intentions.

A team from the Saddar Bairuni police station, after receiving a call from a neighbour, rescued Neelum from her husband’s captivity. The neighbour said that Neelum was crying for help as she was being severely beaten; someone heard her cries and informed the local police. ASI Waqas, along with his team, raided the house and rescued her.

In the presence of her in-laws, her husband brutally beat her, injuring her nose and decreeing divorce thrice. When she tried to flee, he dragged her to the washroom and locked her there in her injured condition, according to Neelum. “When the police team raided, I was locked in the washroom. I was rescued and taken to the police station, but Irfan’s uncle was already there.”

Whether to call it lack of coordination between police, medical team and Dara-ul-Aman officials, lack of support behind the victim, or weak will of the officers concerned, Neelum’s medical check-up took more than two weeks, by which time her injuries, which can clearly be seen in a video and photos available to this correspondent, had been healed. The police team that rescued Neelum were also witness to her condition caused by physical torture. According to Neelum, the medical team didn’t examine the areas she highlighted. “I asked the medical officer at the Benazir Bhutto Shaheed Hospital that I have pain in my ribs and shoulders, but the team didn’t pay any attention.” As a result, the medical report didn’t establish a solid case against her husband Irfan.

However, the investigation officer Waqas, a witness of torture against Neelum, when contacted said that there is no law that allows police to interfere in a couple’s personal affairs. He said that it was a conflict between a husband and a wife, and police don’t interfere in such domestic matters, adding that despite that he rescued the girl on human grounds. It is to be noted that ASI Waqas was leading the police team that rescued Neelum from her former “husband’s custody” in her injured condition.

Regarding the delay in FIR, the investigation officer responded that the victim’s medical report is not strong enough to file a case against the offender. “If the victim has any fracture or a deep wound, a strong case could be registered against him,” ASI Waqas said in his telephonic interview with this correspondent.

The law is strong enough and gives protection to women against violence, but that is only possible if the law is implemented in its true letter and spirit. In our justice system, laws protect those victims who have strong financial or political backgrounds. In Neelum’s case, she neither has a strong political nor financial background.

Pakistan is overflowing in legislations. The thing that lacks is implementation, which seems to be impossible in the prevailing investigation and justice systems. The need is the True implementation of the domestic violence laws and needs a transparent system and merit-based unbiased police force as well as a responsive court system, but unfortunately, “Our country is very much in crisis in this regard.

Laws are strong or are, in fact, more supportive of women, but only for those with a strong backing. Neelum’s case is muddled. Despite the availability of proof of torture against her, the offender could not be brought to justice. Although police have registered a case now, delays in obtaining a medico legal certificate (MLC) have weakened her case.

Under the police rules the investigation officer is required to approach the hospital for an MLC of the victim within twenty-four hours of the incident. If any investigation officer commits a delay, and there is evidence of that, the department is required to take a strict action against that officer. But unfortunately most of the time, non-availability of a medical team at a hospital, particularly in rural areas, could cause a delay in the issuance of an MLC (Medico-Legal-Certificate)

Law concerning domestic violence is not an issue, but implementation is circumvented by outside influence and interference, poor execution of courts’ decisions, and lack of honesty, dedication and will of enforcers. There are thousands of women in our society who are forced to tolerate violence in their homes due to various push and pull factors.

And a huge lacuna in our society when the incident took place and when a case reported in a police station, many informal channels are activated to settle the dispute. In such situations police cannot stop interventions. Often, in cases in which a husband or in-laws commit violence or torture against a woman, even the elders or other family members of the victim get involved to advise reconciliation or a patch-up after reporting of the incident.

To control gender-based violence, the provincial governments have established special women compliant cells at district level. The In-charge Women Complaint Cells have stated that they have received many complaints that show an increased ratio of domestic violence in the district. But none of the complainants allowed them to take action against their partners or in-laws. Most of them [women] sought help to deter violence against them. When asked what reasons prompted that behaviour, they said that women’s financial dependence on their husbands is the leading factor that bars them to go against the offender, “Growing inflation has further aggravated women’s vulnerability against domestic violence. Most of the complainants when suggested a separate life instead of bearing everyday mental and physical torture say that they have nowhere to go with their children as they don’t have any alternative support. Financial dependence and other societal pressures force women to bear violence.

Article 14 of the Constitution of Pakistan provides for prohibiting torture for purposes of extraction of evidence that although Pakistan had ratified the UN Convention Against Torture six years ago, the legislation has not been actualized.

There is an urgent need for federal and provincial governments to make the prevention of violence against women and children one of their topmost priorities with clear directions and resources. All legislation, rules and directives related to this subject need to be identified and pulled together for an overall review, updating and implementation.

In countries where law enforcing agencies take violence against women and children extremely seriously have a starting point: victim’s complaint is taken as a matter of fact and investigation is initiated accordingly. The onus of the proof is shifted to the perpetrator. This is also the case for complaints involving violence, abuse, sexual harassment, and rape.

In societies where violence against women and children is treated as a major crime, specialist units are set up to support victims with the authorities working closely with third sector stakeholders. Arrangements are put in place for regular briefings, consultations, joint trainings, reviews and updating of legislation, protocols and rules.

In Pakistan, the legislation framework exists and can be improved, but it is implementation, lack of coordination, lack of resources and investment, gender biases in a patriarchal setup where women are generally treated as second class citizens, and political and community influences that combine to circumvent women and children from getting justice—their basic human right. As society we may have travelled a lot, but we still have a very long way to go when it comes to rights of women and children.

Article 184

پاکستان کی مخصوص صورتحال میں عدالتوں کے اس گرتے معیار کے پس منظر پر یہ کہا جاسکتا ہے کہ آئین سپریم نہیں بلکہ پارلیمنٹ سپریم ہے کیونکہ عدلیہ کو آئین لکھنے کا اختیار نہیں دیا جاسکتا، جس طرح آئین کی تشریح کرنے کے بہانے آرٹیکل 63A کے ساتھ کیا گیا ہے اور کورٹ آئین کو سپریم قرار دے کر اپنے تشریح کے پاور سے پارلیمنٹ کے ساتھ کھلواڑ کیا ہے اور کرسکتی ہے جب تک ادارے مضبوط نہیں ہوتے تب تک پارلیمنٹ سپریم ہے، جب ان کورٹوں میں جسٹس دراب پٹیل جیسے جج صاحبان ہوں گے ،اس وقت پارلیمنٹ نہیں، آئین سپریم ہو گا۔

https://www.express.pk/story/2475818/268/

Violence against children on the rise in Sindh

Provincial and district governments have been urged to include peasants and rural workers’ children in programmes and policies to safeguard their future and guarantee their right to life, health, and education in Sindh.

Children of different school clubs in Benazirabad gathered in a funfair jointly organised by the Hari Welfare Association (HWA) and the Social Welfare Department (SWD) to mark Universal Children’s Day. This year’s theme is ‘Equality and Inclusion.’

Child club leader Maryam said that in 2021, 885 cases of violence against children were reported in Sindh, including 455 sexual abuse, 139 abductions, 245 missing, and 47 child marriages.

The most vulnerable districts in the context of child sexual abuse were Khairpur, Dadu, Sanghar, Nusheroferoz, and Karachi. These cases reveal protection of children is not ensured by the state and the relevant authorities in any manner.

She added that in 2020, 861 cases of violence against children were reported, including 390 cases of child sexual abuse, 190 abductions, 231 cases of missing, and 81 cases of child marriages.

Another child club leader Anas shared that in 2016-17, Pakistan Education Statistics reported 6.4 million children, including 3.3 million girls, were out of school in the province.

In 2019, 10.5 per cent of schools in Sindh had Children with Disabilities (CWDs), and 0.11 per cent of children in schools had one or other disabilities. In Sindh, 36.2 per cent of CWDs were girls and 63.8 per cent boys.

Anas added that these children were unable to attend school because of poverty, lack of awareness, educational facility and government’s interest to invest in education, and higher rates of corporal punishment.

Another child club leader Alishba stated that high illiteracy rate results from a feudal structure that forces the poor to stay in the cycle of poverty and marginalisation.

HWA President Akram Ali Khaskheli said that the Sindh Education and Literacy Department’s budget has increased from Rs197.368 billion in 2020-21 to Rs222.102 billion in 2021-22. The authorities have always claimed an increase in funding, yet 6.4 million children are out of school and the number of schools has decreased.

The Sindh government has been receiving loans from foreign donors like JICA, World Bank, European Union, and USAID.

He said that the total number of schools was 49,211 in 2006-07, but that number dropped to 42,383 in 2016-17. Similarly, number of schools for girls decreased from 8,958 in 2007-07 to 5,385 in 2016-17.

Following the 18th Amendment, the Sindh government began to receive greater finances from the federal government. However, instead of expanding, the number of schools has fallen.

HWA observed that thousands of schools have turned into cattle pens due to the sheer criminal negligence of concerned authorities.

The HWA estimates that there are more than 1.7 million bonded labourers in Sindh. Of them, over 700,000 are children who are forced to work and live in agriculture under deplorable conditions by their landowners.

Imam Bux Arrisar, Regional Director Sindh Education Foundation (SEF) said, “The Sindh government and Sindh Education Foundation are striving hard to provide quality education to the children who are living in remote areas of the province.”

Source by

IHC asks govt to set age limit for marriage

The Islamabad High Court (IHC) called on Wednesday for legislation to set the minimum age for marriage in light of a decision of the Federal Shariah Court (FSC) on the topic.

In its judgment, authored by Justice Amir Farooq, the court observed that the Child Marriage Act, 1929, criminalised child marriages, while the Sindh Child Marriage Act, 2013, also declared anyone under the age of 18 years as a child.

According to the Child Marriage Act, the 11-page judgment said, the age of marriage of a girl was 16 years, while according to Hanafi jurisprudence it was 17 years. The court further said that it would be appropriate for the state to intervene and legislate on the matter.

The judgment further stated that the state was not barred by Islam from enacting legislation to set the age limit for marriage. It added that it would be appropriate for the federal government to legislate in light of the decision of the FSC.

The Protection against Harassment of Women at the Workplace (amendment) bill, 2021

The Senate Standing Committee on Human Rights on Monday finalized its deliberation and passed the bill titled; “The Protection against Harassment of Women at the Workplace (amendment) bill, 2021” introduced by Dr Shireen Mazari, Minister for Human Rights. The Honourable Chairman Committee, Senators, Women activists and Law experts gave their insight on the proposed bill and certain amendments were also considered and welcomed by the Chair.

The Committee also observed one-minute silence and passed a resolution unanimously moved by the Chairman Committee to honour the deceased Sri Lankan citizen who became a victim of mob lynching last week in Sialkot.

The Senate Standing Committee on Human Rights met under the Chairmanship of Senator Walid Iqbal here at Parliament House on Monday. The Committee reviewed “ The Protection against Harassment of Women at the workplace (amendment) bill, 2021” clause-by-clause.

While giving her intuition on the proposed amendment bill, Dr Shireen Mazari said that in the previous act the definitions of Employee, Workplace, and Harassment were narrow. In the proposed amendments we tried to expand the definitions, she added. Senator Sherry Rehman identified loopholes in the amendments and asked for addressing the lacunas. She conceded that the previous law was not finding the resolution to some matters due to narrow definitions. She wanted the law to be more inclusive with broad definitions. Sherry Rehman and law experts were of the view that a section of the bill related to Punishment for filing malafide or false complaints should be omitted while Senator Prof Mehr Taj Roghani opposed the omission of the said section.

The Law experts welcomed the amendments proposed by the ministry but observed that further addition was needed in the definitions. The law experts submitted in written their proposed amendments to the ministry.

After deliberation and reviewing the proposed amendment bill clause-by-clause the Senate Standing committee on Human Rights passed the amendment bill to protect women from harassment at the workplace.

Some of the proposed Amendments are:

i)The protection of women working in sports and online was made part of the bill

ii)The scope of the law also includes universities and art studios.

iii)Harassment of women working in houses was also included in the bill

iv)A government employee involved in harassment can be punished with dismissal and suspension of promotion.

V)Those involved in professional fields will have their licenses revoked as punishment.

vi)Gender-based discrimination would also be a punishable offence.

vii)Harassment petitions will be decided in 90 days.

According to its Statement of Objects and Reasons, the bill “aims to facilitate increased participation of women in the workforce by removing the lacuna present in the existing law. It broadens the ambit and scope of the law to include certain professions and employment models that the current law does not expressly mention.”

The statement adds, “Through these amendments, protection from harassment shall be provided to people engaged in all types of work – formal and informal. The amendment bill will also provide clarity with respect to different kinds of harassment that take place at the workplace. The purpose of this amendment is to fulfil Pakistan’s constitutional obligations to its citizens and guarantee them their dignity and prevention of discrimination on the basis of sex in their professions and achieve the goal of increased women participation of women in the workplace. The bill seeks to achieve the aforesaid objectives.”

At the outset of the meeting, on the proposal of the Chairman Committee the Senate’s body observed a minute silence and passed a resolution moved by the Chairman Committee to honour the deceased Sri Lankan citizen who became a victim of mob lynching last week in Sialkot. The resolution was passed unanimously. The Committee Resolved that this Committee

“(a) expresses its profound grief and sorrow over the sad demise of Sri Lankan citizen Priyantha Kumara Diyawadana in Sialkot on 3rd December 2021 and extends its sincere condolences and regrets to the family of the deceased, as well as to the Government and people of Sri Lanka; (b) condemns the vigilantism and the brutality involved on part of the violent mob that perpetrated this gruesome crime; and (c) calls upon all institutions of the State to ensure that these perpetrators are punished with the full might of the law, and also to conduct some soul searching followed by taking of concrete steps towards preventing the society’s descent into intolerant radicalization”.

Caselaws in Urdu PLD 2020 SC 508

Caselaws in Urdu PLD 1981 S.C 308

Caselaws in Urdu 2020 MLD 588

Caselaws in Urdu 2020 MLD 55