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International Intellectual Property - Pakistan

posted 1 year ago

Author

Ali Kabir Shah

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+92-21*****
Ali Kabir Shah
Ali & Associates

It is quiet cliché to state, but remains to be true, that each IP case has to be dealt with according to its peculiar facts and circumstances. In this regard, our priority is to understand the network of the infringer so that we can advise the most relevant and rewarding enforcement strategies to our clients. For example, if the infringer is a corporate entity, then we would advise civil action; however, if the infringer is operating on a small scale, dealing with counterfeits, then we would advise criminal action.

We do, however, maintain that once the client has obtained restraining orders against a given target, it must couple this with measures to create inconvenience for the infringer in the market space, and so we help advise our clients with the most appropriate enforcement measures.

The main challenge in safeguarding IP is the enforcement of such rights. Pakistan has extensive laws protecting core IPs (Trademarks, Patents, Designs & Copyrights); however, the enforcement of such rights is a significant challenge.

One of the key reasons for this is that damages are very seldom granted in civil actions, and in criminal actions, the penalties are too low to create a deterrence. Moreover, the law enforcement agencies, despite having due jurisdiction over IP matters, also struggle with associating value to the infringement of Intellectual Property, which naturally complicates matters and enforcement.

Our primary approach to addressing this challenge is by engaging with the relevant LEAs and providing detailed analysis of the facts and law, enabling them to better understand the grievance and proceed with an action. With civil cases, as aforesaid, enforcement is prioritized, as a result of which we explore ways to enforce a Court Order, which includes creating awareness of the infringement and the restraining orders against the target before the relevant regulators/forums and the public at large.

The benefits of a Due Diligence exercise in the beginning of an infringement matter is two-fold.

First, it helps determine the legitimacy of claims against a given target.

Secondly, it is a vital component of devising enforcement strategy against the infringer. In this regard, Due Diligence helps you identify the scope of an infringer’s business, its network and penetration in the market, which in turn helps with a cost benefit analysis to go after such a target. It also helps you evaluate resistance on part of the target. For example, in cases of a search and seizure action, Due Diligence helps anticipate the likelihood of hostility from the local association if the target is a prominent player.

International conferences and publications play an immensely important role in the IP industry. Publications help educate the relevant stakeholders about the current landscape of IP enforcement in Pakistan, and we have been approached by many foreign clients who have reviewed our articles/chapters in such publications. Therefore, it not only provides insight among the wider IP community but also provides business leads.

Similarly, international conferences and events such as INTA also play a crucial role in exchange of information and insight among the wider IP community. It provides a platform that is consistent, committed and has a promising appeal. It offers networking sessions and brings forth the achievements, opportunities and challenges faced in the field of IP globally.

For developing countries, such conferences and events facilitate a better understanding of where the industry is headed and provides an opportunity to learn about it and prepare for when these advancements are made in your jurisdiction. A huge part of these conferences is also the various committees that it forms for a given term – which brings IP practitioners from around the globe to work towards a focused goal.

There are a few important pieces of legislation pending enactment. One of these is a Bill on Geographical Indications and, once promulgated, we anticipate significant impact on GIs in Pakistan, as it would lay down proper criteria for its protection and enforcement. Pakistan currently does not protect GIs in a manner at par with international standards and, considering the potential of GI portfolios, Pakistan’s economy can substantially benefit from a proper administration of the same.

The second piece of legislation is the proposed amendments to the Patents Ordinance 2000, wherein substantial changes have been proposed, the most prominent of which is the elimination of third-party oppositions. However, IP practitioners have strong objected to this measure, as the majority of patents filed in Pakistan pertain to pharmaceutical, biological and nutritional products, and these amendments could have a serious, detrimental impact on generic pharmaceutical companies. However, the outcome of these proposals is still pending.

In addition to the above, amendments have also been proposed to the Trademark & Patent rules, whereby timelines, procedures and official costs may be amended.

Lastly, the Intellectual Property Organization has expressed its intention to accede to the Madrid Protocol and has suggested that measures to implement the said protocol are at play. However, when exactly this accession will take place is still unclear.

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