PAKISTAN Law and Practice Contributed by: Ali Kabir Shah, Hanya Haroon, Talib Ali Shah and Saif Ahmed, Ali & Associates
to attracting the jurisdiction of various govern - ment agencies and enforcement forums, such as the Customs Authority, the Drug Regulatory Authority, the Securities and Exchange Commis - sion of Pakistan and the Competition Commis - sion of Pakistan, among others. The rights granted to local trade mark owners are qualified, whereby the proprietor of a mark is mandated to put the mark to commercial use within five years from the date of registration, failure of which may subject the mark to cancel - There are no specific legal guidelines for estab - lishing the use of a trade mark in Pakistan per se. Parties may demonstrate usage through evidence such as promotional and marketing materials, sales invoices, and import/export documents associated with the trade mark, to help determine use in commerce. It is also necessary to establish that the defend - ant’s use is likely to be regarded as a trade mark, aiming to identify and/or distinguish their goods or services, as opposed to purely descriptive use. 2.5 Notices and Symbols The registered/trade mark symbols (R and TM) denote the status of the mark in Pakistan as being registered or applied for, respectively. Though marking is not a mandatory require - ment, its use is beneficial as it reduces the risk of the infringer claiming innocence by not being aware of the status or existence of proprietary rights over the mark, and deters any potential infringer by illustrating legally recognised rights over the mark. lation from any third party. 2.4 Use in Commerce
Moreover, misrepresentation via marking as to the status of a trade mark also amounts to an offence under Section 102 of the Trade Marks Ordinance, and is punishable by imprisonment for a term of not less than one month (but that may extend to six months) or a fine, or both. 2.6 Related Rights The scope of trade marks as laid out in the Trade Marks Ordinance is fairly broad, and comprises certain elements whose protection may overlap with copyrights. For instance, any element that bears an artistic work, such as a logo, a trade dress or packaging, may be protected under both a trade mark and copyright. Moreover, a surname is registrable as a trade mark if it has acquired distinctiveness and obtained secondary meaning in the jurisdic - tion in respect of the goods. A surname being registered as a trade mark would not affect the morality of the name, nor would the same arise as an issue in registration so long as the mark is not used in a derogatory or defamatory sense. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Section 10 of the Copyright Ordinance 1962 rec - ognises the following works as entailing copy - right: • original, literary, dramatic, musical and artistic works; • cinematographic works; and • records. Moreover, Section 2 of the Ordinance further defines the types of works that are protected in Pakistan.
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