PAKISTAN Law and Practice Contributed by: Ali Kabir Shah, Hanya Haroon, Talib Ali Shah and Saif Ahmed, Ali & Associates
These defences are not necessarily total bars to lia - bility, and their applicability depends on the specific facts of each case. The elements of these defences may vary and their recognition may be influenced by statutory provisions, common law principles and judi - cial interpretation. 9.2 Defences to Copyright Infringement (Fair Use/Fair Dealing) Pakistani law recognises the concept of fair use under Section 57 of the Copyright Ordinance, which speci - fies acts that do not constitute copyright infringement. These include fair dealing with literary, dramatic, musi - cal or artistic works for purposes such as research or private study, criticism or review, and reporting current events through print media, broadcast, cin - ematographic works or photographs. Limited use of copyrighted material is therefore permitted in defined circumstances without the owner’s consent, with the assessment guided by statutory factors such as the purpose of use and the nature of the work. Although the Ordinance does not expressly provide exceptions for satire, parody or free speech, such uses may potentially fall within the broader scope of fair dealing under Section 57. Whether a particular use qualifies as fair dealing in these contexts is deter - mined on a case-by-case basis and rests within the discretion of the adjudicating authority. 9.3 Exhaustion Pakistan recognises the principle of exhaustion of trade mark rights, commonly referred to as the doc - trine of first sale. Once a trade mark owner puts a product into the market, their exclusive rights over that specific item are considered exhausted. Subse - quent sales of that item by others are not within the scope of trade mark infringement. As for copyright, the concept of exhaustion is less clear-cut in Pakistan. While the law does not explic - itly address the doctrine of exhaustion, the princi - ples related to the first sale may be applied to some extent. The idea is that, once the copyright owner has authorised the sale of a copy, they may be limited in preventing subsequent sales of that specific copy. With regards to the treatment of digital content by the courts, in the absence of explicit provisions, the
courts consider the nature of digital goods, licensing agreements and other relevant factors when applying exhaustion principles to digital content.
10. Remedies 10.1 Injunctive Remedies
In cases of infringement, the available remedies to a trade mark or copyright owner include seeking prelim - inary or permanent injunction, damages and rendition of accounts. Damages may encompass actual loss, loss of business opportunity, future profits and dam - age to reputation. Injunctive relief, whether interim or permanent, can be made out upon fulfilment of three conditions: • the existence of a prima facie case in favour of the applicant; • irreparable loss, damages or injuries that may occur to the applicant if injunction is not granted; and • that the balance of convenience should be in favour of the applicant. Additionally, the courts have the authority to issue orders for the erasure of offending trade marks. If a person is found to have infringed a registered trade mark, the High Court or the Intellectual Property Tri - bunal may order: • erasure, removal or obliteration of the offending trade mark from any infringing goods, material or articles in the possession, custody or control of the infringer; or • destruction of the infringing goods, material or articles if erasure, removal or obliteration is not reasonably practicable. If an order for erasure or destruction is not complied with, or if non-compliance is likely, the High Court or Intellectual Property Tribunal may direct the delivery of the infringing goods to a designated person for the required actions, including erasure, removal, oblit - eration or destruction of the trade mark, as deemed appropriate.
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