INTELLECTUAL PROPERTY RIGHTS AND THEIR PROTECTION WITH SPECIAL REFERENCE TO PAKISTAN

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LAW COLLEGE UNIVERSITY OF PESHAWAR

ABSTRACT

The present study seeks to examine Intellectual Property Rights, their introduction, history, and importance in the present legal systems. It further analyzes the Intellectual Property Laws that are enforced in Pakistan, what purpose they serve and how a wrong done in the infringement of these rights can be redressed. Before concluding the present work, some suggestions have been made as what steps should be taken to implement these rights in their true spirit so that creative people and creativity can be duly respected and safeguarded in this country.

INTRODUCTION

Ask anyone about the Intellectual Property Rights (IPRs) and the possibility is that you will get an extremely vague reply that it somehow protects the interest of the writers and artistes.

While many would proudly say that they know it exists, the majority, with the exception of handful of experts in highly legalistic circles, would confess that they don’t understand how it affects them. Still fewer would shrug-off suggestions that making a copy of a movie on video tape and songs on audio tapes, photocopying of a book or a photograph, constitute an infringement of IPRs.

Before going towards Intellectual Property Rights, it is imperative to understand that what Intellectual Property exactly means. Intellectual property is an intangible property, which, against other forms of property, cannot be defined or identified by its own physical parameters. It includes a number of distinct types of legal monopolies over creations of the mind, both artistic and commercial, and the corresponding fields of law.1 Under intellectual property law, owners are

granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; ideas, discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.

According to Black’s law dictionary, Intellectual Property is “A category of intangible rights protecting commercially valuable products of the human intellect.”2 They are in fact “a number of distinct types of legal monopolies over creations of the mind, both artistic and commercial, and the corresponding fields of law.”3

Intellectual property is about creative ideas – the product of the mind such as inventions, designs and images, symbols, music and drama, literary and artistic works, names etc. intellectual property refers to the creation of mind. Widespread dissemination of these ideas benefits society as a whole and stimulates further creative activity. However once ideas have been made public they can be copied by others, so that if their originators are to control and obtain remuneration from their use they can only do so within a secure legal framework which creates property rights in those ideas.

This category of intangible rights protecting commercially valuable products of the human intellect, according to the Black’s law dictionary comprises primarily trademark, copyright, and patent rights, but also includes trade-secret rights, publicity rights, moral rights, and rights against unfair competition. It is a commercially valuable product of the human intellect, in a concrete or abstract form, such as copyrightable work, a protectable trademark, a patentable invention, or a trade secret.

COPYRIGHTS, TRADEMARKS AND PATENTS

The rights which are exclusively available over creations of the mind include both artistic and commercial. The former category is covered by copyright laws, which protect creative works, such as books, movies, music, paintings, photographs, and software, and give the copyright holder exclusive right to control reproduction or adaptation of such works for a certain

2 Garner (1997) “Black’s Law Dictionary” 7th Ed West Group, St. Paul, Minn.

3 Ibid.

period of time.4 A copyright, according to Black’s Law Dictionary, is “a property right in an original work of authroship (such as literary, musical, artistic, photographic, or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display of the work.”5

The second category is collectively known as "industrial properties", as they are typically created and used for industrial or commercial purposes. A trademark and patent cover this category. A trademark is a distinctive sign which is used to prevent confusion among products in the marketplace. A trade mark, on the other hand, includes “ a word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others.”6

The main purpose of a trademark is “to guarantee the genuineness of the product.”7

Patents, on the other hand, are related to inventions. According to Black’s Law Dictionary, “A patent is the exclusive right to make, use, or sell an invention for a specified period.”8

A patent may be granted for a new, useful, and non-obvious invention and gives the patent holder a right to prevent others from practicing the invention without a license from the inventor for a certain period of time.

HISTORY AND DEVELOPMENT OF IPL

Modern usage of the term intellectual property goes back at least as far as 1888 with the founding in Berne of the Swiss

6 Ibid.

7 Ibid.

8 Ibid. 1 Intellectual Property Licensing: Forms and Analysis, by Richard Raysman, Edward A. Pisacreta and Kenneth A. Adler. Law Journal Press, 1999-2008.

5 Garner (1997) “Black’s Law Dictionary” 7th Ed West Group, St. Paul, Minn.

4 Levine, David; Michele Boldrin. Against intellectual monopoly. Cambridge University Press. Please visit website: http://www.dklevine.com/papers/imbookfinalall.pdf. (Retrieved on 28-07-09).

Federal Office for Intellectual Property (the Bureau fédéral de la propriété intellectuelle). When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they also located in Berne, and also adopted the term intellectual property in their new combined title, the United International Bureaux for the Protection of Intellectual Property. The organisation subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations. According to Lemley, it was only at this point that the term really began to be used in the United States (which had not been a party to the Berne Convention),[2] and it did not enter popular usage until passage of the Bayh-Dole Act in 1980.9

The concept appears to have made its first appearance after the French revolution. In an 1818 collection of his writings, the French liberal theorist, Benjamin Constant, argued against the recently-introduced idea of "property which has been called intellectual."10 The term intellectual property can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears." (1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414). The statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years.”11 In Europe, French author A. Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.

The concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as property does not seem

10 Ibid.

11 Jewish Law and Copyright, please visit: http://www.jlaw.com/copyright1.html (Visited on 29-07-09)

to exist – notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century.[12] The Talmud contains the prohibitions against certain mental crimes (further elaborated in the Shulchan Aruch), notably Geneivat da'at (literally "mind theft"), which some have interpreted12 as prohibiting theft of ideas, though the doctrine is principally concerned with fraud and deception, not property.

Thomas Jefferson and James Madison were both quite skeptical to the monopolies of copyright, and monopolies of patents, and wrote extensively on the subject.13

Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.14

IMPORTANCE OF IPL

Intellectual property law is now an integral part of the economic life all over ht world. It protects use of ideas and information that are of commercial value. The term “Intellectual Property” covers – patents, copyright, trade 14 Ibid.

marks, designs, knowledge and so on. These intangible property rights are becoming increasingly valuable in the market place. Any attempt to infringe or pass off such rights must be given full legal protection and severely discouraged. The subject has grown in a number of directions over the past decade. Its utility has been recognized not only in the economically developed countries but also in the developing counties like ours.

Intellectual property is itself a visionary domain. But it is historically established and accepted fact that only institutional efforts may succeed in a better way based on collective wisdom of genius and charismatic personalities. In this modern world of science and technology, only those nations are leading how have institutionalized their research and development efforts because individuals have to leave this world but institutions have to survive. Even only such institutions may qualify this test which is based on collective and team efforts and wisdom led by some charismatic leader encouraging and training second line leadership at the same time developing countries like Pakistan need such type of institutions.

OBJECTIVES OF IPL

The two main objectives of the IPL, are to promote respect for intellectual property including industrial property and copyrights on one hand and to promote its protection around the world through international cooperation by amending national laws. The main objective of IPL are discussed under the following headings.

Financial incentive

These exclusive rights allow owners of intellectual property to reap monopoly profits. These monopoly profits provide a financial incentive for the creation of intellectual property, and

9 A Brief History of the Patent Law of the United States. Please visit website: http://www.ladas.com/Patents/USPatentHistory.html (Retrieved on 28-07-09)

12 Ibid.

13 For details please see: http://www.en.wikipedia.org/intellectual_property (Retrieved on 28-07-09)

pay associated research and development costs. Some commentators, such as David Levine and Michele Boldrin, dispute this justification.15

Economic growth

The legal monopoly granted by IP laws are credited with significant contributions toward economic growth. Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to intangible assets. Industries which rely on IP protections are estimated to produce 72 percent more value per added employee than non-IP industries. A joint research project of the WIPO and the United Nations University measuring the impact of IP systems on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth."16

However, correlation does not necessarily mean causation: given that the patent holders can freely relocate, the Nash equilibrium predicts they will obviously prefer operating in countries with strong IP laws. In some of the cases, the economic growth that comes with a stronger IP system is due to increase in stock capital from direct foreign investment, as was shown for Taiwan17 after the 1986 reform.

Economics

Intellectual property rights are temporary monopolies over expression and ideas enforced by the state.

17 Lo, S-T. (2004). "Stregthening (sic) Intellectual Property Rights: Experience from the 1986 Taiwanese Patent Reforms". UCLA, Dept. of Economics. URL: http://www.international.ucla.edu/article.asp?parentid=10985. (Retrieved on 29-07-09).

15 Levine, David; Michele Boldrin. Against intellectual monopoly. Cambridge University Press. Available online on: http://www.dklevine.com/papers/imbookfinalall.pdf (Visited on 29-07-09).

16 Measuring the Economic Impact of IP Systems, WIPO, 2007. URL: http://www.wipo.int/portal/en/news/2007/article_0032.html (Retrieved on 30-07-09)

Intellectual property rights are usually limited to non-rival goods, that is, goods which can be used or enjoyed by many people simultaneously—the use by one person does not exclude use by another. This is compared to rival goods, such as clothing, which may only be used by one person at a time. For example, any number of people may make use of a mathematical formula simultaneously. Some objections to the term intellectual property are based on the argument that property can only properly be applied to rival goods (or that one cannot "own" property of this sort).

Since a non-rival good may be used (copied, for example) by many simultaneously (produced with minimal marginal cost), producers would need incentives other than money to create such works. Monopolies, by contrast, also have inefficiencies (producers will charge more and produce less than would be socially desirable).

The establishment of intellectual property rights, therefore, represents a trade-off, to balance the interest of society in the creation of non-rival goods (by encouraging their production) with the problems of monopoly power. Since the trade-off and the relevant benefits and costs to society will depend on many factors that may be specific to each product and society, the optimum period of time during which the temporary monopoly rights should exist is unclear.18

INTELLECTUAL PROPERTY RIGHTS IN PAKISTAN18 Padraig Dixon and Christine Greenhalgh, The Economics of Intellectual Property: A Review to Identify Themes for Future Research, Oxford Intellectual Property Research Centre, Oxford, United Kingdom, November 2002. Please visit URL: http://www.oiprc.ox.ac.uk/EJWP0502.pdf (Visited on: 30-07-09)

In the recent decade, the ripples of demand for the protection of IPRs on the international forum, such as the United Nations, have also been felt in Pakistan. Many know that IPRs exist but few know how it affects them.

While the concept of IPRs is relatively new, in reality it is only an extension of the much known, but less understood copyright, protection. The need for the adaptation of the universal protection of IPRs now includes many more activities as compared to its predecessor. Today it includes not only the

Bibliography

Bhatti’s, Rai Muhammd Zafar (2007) “Manual of Trade Marks Laws: Intellectual Property Laws” Lahore, Eastern Law Book House.

Chaudhry, G.M (2005) “The Intellectual Property Code” Rawalpindi, Federal Law House.

Chaudhry, G.M (2005) “The Intellectual Property, Intellectual Property Laws in Pakistan and International Treaties on IPRs” Rawalpindi, Federal Law House.

Cornish, W.R (2004) “Intellectual Property: Omnipresent, Distracting, Irrelevant” London, Oxford University Press.

Cornish, W.R (2005) “Intellectual Property: Patent, Copyright, Trade Marks and Allied Rights” New York, Universal Law Publishing Co Ltd.

Fafifque, Mohammad (2005) “ Copy Right Ordinance, 1962 with Copy Right Rules 1967” Lahore, Khyber Law

traditional literary, artistic and musical materials but also the protection of an idea which in the past was an unheard concept, software development, industrial property particularly textile-related.

The regime of IP laws in Pakistan is well established and goes back to the early 20th century. Pakistan became a sovereign state after gaining independence from the British Empire in 1947. By virtue of this British rule stretching back to the mid-19th century, most of the laws in British India (comprising the

Publishers.

Garner (1997) “Black’s Law Dictionary” 7th Ed West Group, St. Paul, Minn.

Kerly (2005) “Kerly’s Law of Trade Marks and Trade Names” London, Sweet & Maxwell.

Mian Sarfraz Ul Hasan (2007) “The Manual of Copy Right Laws” Lahore, Nadeem Law Book House.

Webliography

http://www.google.com

http://www.dklevine.com

http://www.international.ucla.edu

http://www.ippakistan.net

territories now forming Pakistan, India, Bangladesh, Sri Lanka and Myanmar) were generally derived from the laws of the United Kingdom. When Pakistan gained independence in 1947, the intellectual property laws that were in force in British India at that time continued to remain in force in Pakistan. Among these laws, the main statutes included the Patents and Designs Act 1911, the Trade Marks Act 1940 and the Copyright Act 1914. In addition to these, the common law protection provided to intellectual property rights continued to apply.

Over the years, the above principal statutes have been amended to give way to new legislation. The copyright Act 1914 was replaced by the Copyright Ordinance 1962. In the last decade or so, the laws have been amended in order to keep pace with the changing times and, in particular, major amendments have been introduced to bring Pakistani IP laws into conformity with the TRIPs Agreement. In this regard, for patents the act of 1911 was replaced by the Patents Ordinance 2000 and the Registered Designs Ordinance 2000. Also a Copyright (Amendment) Ordinance 2000 was introduced amending some provisions of the previous Ordinance of 1962. In the field of trademarks, a Trade Marks Ordinance 2001 was enforced in 2004.

http://www.ipo.gov.pk

http://www.oiprc.ox.ac.uk

http://www.pakistaneconomist.com

http://www.wikipedia.com

http://www.wipo.int

Currently, the IPR regime is governed by an integrated piece of legislation, called the Intellectual Property Organization (IPO) of Pakistan Ordinance 2005. The earlier regime was fragmented into Ministry of Commerce (for trademarks), Ministry of Education (copyrights) and Ministry of Industries and Production (for patents and designs), now it has come under the umbrella of an integrated IP office in Islamabad, called the Intellectual Property Organization, attached to the Cabinet Division and directly reporting to the Prime Minister.

INTELLECTUAL PROPERTY RIGHTS REGIME

We have discussed before that any Intellectual Property Rights Regime broadly includes copyrights, trademarks and patents. Copyrights, under the regime, include right of printing and publishing any written material of original nature that is not already published, under the name of the author of the work or the publisher or the printer who undertakes such work for purposes of general benefit. Patents, under the regime, comprise of something original having ingenuity and newness in its process and design. Trademarks, under the regime include mark capable of being represented graphically, which is capable of distinguishing goods or services of one undertaking from those of another undertaking.

Section 2 (c) of Patents Ordinance 2000 defines invention to include “any new and useful product, including chemical products, art, process, method or manner of manufacture, machine, apparatus, or other article, substance or article or product produced by manufacture and includes new and useful improvement of any of them and an alleged invention.”

INFRINGEMENT OF IP RIGHTS IN PAKISTAN

As is the case with most third world countries (and even some developed countries), intellectual property infringement is unfortunately very widespread in Pakistan, extending to all businesses and trades. Infringement of trademarks is mostly experienced in products from the apparel, electronics, food and confectionery, pharmaceuticals, and cosmetics industries. Importantly, the infringers in many cases adopt trademarks which are different; however, they produce look-alikes of the colour scheme, design and get-up of the product such as its packaging and trade dress. In this way, infringers attempt to

tap the lower end of the consumer market in the country, which is not very well educated and is thus deceived by the lookalike packaging. With the improvement in packaging technology, and with more and more sophisticated procedures available to the infringers, it is becoming increasingly difficult for consumers to detect the counterfeits.

In the case of patents, because Pakistan has a large and upcoming pharmaceutical industry, there are a number of infringements relating to patented processes for pharmaceuticals, as well as patented compounds and compositions, by local generic manufacturers, who mostly import the generic drugs or their raw materials from China, Brazil and India, and repackage and sell them in Pakistan. Patent infringements in other industrial sectors, such as engineering, are few and far between. Infringement of designs is also encountered in the engineering, electronics, textiles, food and beverages, and various manufacturing sectors. Fortunately, the legal system in the country provides for adequate protection for trademark, patent and design owners, and those owners who pursue the legal remedies aggressively and proactively are able to control the menace of infringement by due process of law.

PROTECTION OF IP RIGHTS IN PAKISTAN

Intellectual property rights in Pakistan could not get their due place in our individual as well as in policy making. The constitution of Pakistan has given an assurance about the protection of all types of right. According to entry 25 of part I (Federal Legislative List) of the fourth schedule to the constitution of the Islamic Republic of Pakistan, 1973 copyright, inventions, designs, trade marks and merchandise marks are the subjects included in the legislative competence of the Majlis-e-Shoora (Parliament) and under the administrative authority of the federal government.

Intellectual property rights could not get their due place in our policy making. The constitution of the Islamic Republic of Pakistan has given an assurance about the protection of all types of property and its rights,Clause (1) of Article 260 of the constitution of the Islamic Republic of Pakistan, 1973, defines property as“Property” includes any title or interest in property, movable or immovable, any mean or instruments of production

Similarly articles 23 and 24 of the constitution state about acquiring and protection of property and property rights, “23” Provision as to Property: Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the constitution and any reasonable restrictions imposed by law in the public interest“24” Protection of Property Rights:

1. No person shall be deprived of his property save in accordance with law

2. No public property shall be compulsorily acquired or taken possession of save for a pubic purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation o and the manner in which compensation is to be determined and given

3. Nothing in this articles shall affect eh validity of a. Any law permitting the compulsory acquisition or

taking possession of any property for preventing danger to life, property or public health; or

b. Any law permitting the taking over of any property which has bee acquired by, or come into the possession of any person by any unfair means, or in any manner, contrary to law; or

c. Any law relating to the acquisition, administration or disposal of an property which is or in deemed to be enemy property or evacuee property under any law (not being property which has cased to be evacuee property under any law); or

d. Any law providing for the taking over of the management of any property by the state for a limited period, either in the public interest or in order to secure the proper management of the property , or for the benefit of its owner; or

e. Any law providing for the acquisition of any class of property for the purpose of

i. Providing education and medical aid to all or any specific class of citizen; or

ii. Providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specific class of citizen; or

iii. Providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or

iv. Any existing law or any law made in pursuance of article 253

4. The adequacy or otherwise of any compensation provided for by any such law as is referred to in this article, or determined in pursuance thereof, shall not be called in question in any court

According to entry 25 of Part I (Federal Legislative List) fo the fourth schedule to the constitution of the Islamic Republic of Pakistan, 1973, copyright, inventions, designs, trade marks and merchandise marks are the legislative competence of the (Majlis-e-Shoora) Parliament and under the administrative authority of the federal government.

The rules of business, 1973 of the federal government have entrusted the responsibility relating to administration and management of intellectual property and different intellectual property rights to different ministries. All intellectual property legislation in Pakistan is through ordinances except the trade marks (invalidation and summary Registration) Act, 1950 passed by the then legislature but latter repealed in 1981. The Merchandise marks act, 1889 is a piece of legislation which was passed and enacted during the British Government and it is still surviving with some necessary amendments.

CRIMINAL REMEDIES

Criminal procedures and penalties are provided for trademark counterfeiting and infringement. The criminal statutes that govern trademark counterfeiting and infringements in Pakistan are the Pakistan Penal Code 1860, the Code of Criminal Procedure 1886 and the Drugs Act 1976 (in relation to drugs/pharmaceuticals only). It is generally understood that a criminal action against trademark counterfeiting can be taken only for a registered trademark. However, this may not be correct as Section 478 of the Pakistan Penal Code 1860 defines the term trademark as follows:

“478. Trade mark. A mark used for denoting that goods are the manufacture or merchandise of a particular person is called a trademark, and for the purpose of this Code the expression “trademark” includes any trademark which is registered in the register of trademarks kept under the Trade Marks Act, 1940 (V of 194).”

It is to be noted that this provision refers to “counterfeit of a trademark” and not the counterfeit of a registered trademark, therefore a criminal action for an unregistered trademark may also be possible. However, to date no criminal case has been brought for an unregistered trademark and there do not appear to be any reported cases from which it could be determined whether criminal proceedings filed on the basis of an unregistered mark have been entertained by a criminal court.

The use of a trademark in Pakistan is a prerequisite for initiating a criminal action for violation of an unregistered trademark. If a trademark is registered, use is preferable. The remedies as a result of criminal action include imprisonment and monetary fines due to the offence of trademark counterfeiting. These remedies are generally not sufficient to provide a deterrent as the fines are meager and usually no imprisonments are ordered. Apart from these, the remedy of seizure, forfeiture and destruction of infringing goods is also available. Seizure can be done at the time of a raid or as soon thereafter as possible. If not done at that time, seizure can be done upon investigation. Forfeiture can only be ordered after completion of trial and only if the accused is found guilty of the offence. This usually takes 12 to 18 months.

The procedure for filing a criminal action for trademark counterfeiting involves the following steps:

A written complaint is filed with the court of area magistrate. This is a detailed petition setting out all the details of the ownership of rights owner’s rights and the infringing activities; preferably it should attach relevant evidence so as to present a prima facie case of infringement and counterfeiting to the magistrate.

The magistrate issues orders to the station house officer of the area police station where the defendant is located for the alleged infringer’s premises to be raided and the goods to be confiscated.

The station house officer constitutes a police raiding party to conduct the raid at the premises where the counterfeit goods are stored and sold, and if such goods are found, these are confiscated.

Preparation of the seizure report, including the inventory of goods seized.The police then prepare the investigation report, the charge papers and the necessary documents of the raid for presentation in the court of area magistrate. In criminal matters, it is the state which prosecutes charges against the infringer. A trademark owner can retain its own counsel to prosecute criminal infringement matters. Even if the trademark owner retains its own counsel, the pace at which the police and the state counsel conduct the various stages will determine the time frame in which the matter is concluded. The main role of the trademark owner’s counsel is to present the actual law before the court, assist in the examination and cross-examination of witnesses and guide the police or the state counsel as to the actual and proper procedures to be adopted. At times, state counsel or the police, not being familiar with the complex principles of trademark law, have to seek guidance from the plaintiff’s counsel for a proper presentation of the case.

If an infringer is sentenced to imprisonment by a criminal court, he cannot avoid the prison sentence by paying a fine in lieu thereof. The court will consider the prior record of the infringer in determining the quantum of fines and the term of imprisonment handed down. All criminal proceedings are initiated in the magistrate’s court, which forms the court of first instance. The decision of a magistrate’s court can be appealed to the high court. A decision from the high court can be appealed before the Supreme Court only through the grant of special leave to appeal.

CONCLUSIONS

Pakistan is a member country to the Bern Convention for the protection of literary and artistic work, Geneva Convention, World Intellectual Property Organization, Universal Copyright convention of 1952 WRO, TRIPS agreement.

Pakistan is about to join Paris convention and is implementing the international classification of goods and will be adopting the new service mark classification. Pakistan is currently following the Trade marks Act of 1940 which the new trade

mark ordinance of 2001 that has already promulgated conforms to the TRIPS agreement.

The need for foreign investment and transfer of technology can not be underscored enough, in the context of modernising and upgrading of Pakistan’s export sector. It will become easier if Pakistan succeeded in putting in place systems and procedures to protect the IPRs, which would be a step forward in terms of creating an investor-friendly environment in the country. As a signatory to the WTO, there is need to create awareness among the Pakistani business community for the need to adhere to the requirements of a fast-integrating, global economy. It would include the active participation of the intellectual property right owner; effective treaty compliance; consistent legislation; and appropriate inter-agency coordination between the police, prosecution authorities, custom agencies and the policy departments.

Despite some encouraging signs, the situation is far from satisfactory Pakistan has a long way to go to effectively resolve the IP problem.

For the alleviation of poverty through trade, Intellectual Property rights can be key tools. The lack of emphasis on IP in Pakistan is a real tragedy; IP protection contributes to economic growth by stimulating innovation, cultural diversity and technical development as part of a larger policy framework. For Pakistan, there is no alternative to going the IP route with seriousness of purpose.

ENDNOTES