๐๐๐ ๐ข๐ฌ๐ญ๐ซ๐๐ญ๐ข๐จ๐ง ๐ฎ๐ง๐๐๐ซ the ๐๐ซ๐ฎ๐ ๐ฌ ๐๐๐ญ ๐๐จ๐๐ฌ ๐ง๐จ๐ญ ๐๐ซ๐จ๐ฏ๐ข๐๐ ๐๐ซ๐จ๐ญ๐๐๐ญ๐ข๐จ๐ง ๐๐ ๐๐ข๐ง๐ฌ๐ญ ๐ญ๐ก๐ ๐๐ง๐๐ซ๐ข๐ง๐ ๐๐ฆ๐๐ง๐ญ ๐จ๐ย ๐๐ญ๐ก๐๐ซ๐ฌ’ ๐๐ซ๐๐๐๐ฆ๐๐ซ๐ค๐ฌ: ๐๐๐
Justice Babar Sattar of the Islamabad High Court has recently given an important judgment on the relation between Drugs Act, 1976 and Trade Marks Ordinance, 2001. A petitioner on the bases of a judgment given in his favor by the IP Tribunal had approached the Drugs Regulatory Authority of Pakistan for cancellation of registration of a product named FERIJET produced by another company claiming that this product is deceptively similar to his product named FERINJECT. His application was dismissed by the DRAP as well as by its Appellate Authority. The primary reasons for rejections were that the respondent company had it product registered under the Drugs Act prior to the registration of the petitioner’s product under the Trade Mark Ordinance. Further, the Drugs Registration Authority was also not party to the case before the IP Tribunal filed by the petitioner. Being aggrieved of the said orders, he approached the Islamabad High Court. It is also necessary to mention that the very person had previously also approached the Intellectual Property Tribunal for trade mark violations and he had won that case against the other company.
The IHC ruled in this background that registration under Drugs Act does not mean that one has now the protection against trademarks violations. This registration does not operate as a license to sell or produce drugs which are deceptively similar to others’ registered trade marks. Similarly, Drugs Act is not special law when it comes to violation of trademarks because trade mark is a distinct subject from drugs registration. The Court further held that both the laws, the Drugs Act and the Trademarks Ordinance, operate within their own domains. They cannot be mixed with one another, neither one can operate in place of another. Both laws address different issues and subjects and both have been enacted with different purposes. Different regulatory regimes may co-exist and an entity can be subjected to multiple regulatory regimes for compliance at a time, because every regulator has its own object and purpose and it has to achieve it.
The Court further held that there is no conflict or confusion in both laws, Drugs Act and Trade Mark Ordinance, and they both prohibit import, manufacture and sale of counterfeit products. Section 39 (1) of the Ordinance declares a registered trade mark to be the personal property of the trade mark owner. The Drugs or the DRAP Act cannot be construed to mean that registration under the Drugs Act operate as a license to infringe the property rights of others under the Trade Mark Ordinance. This cannot, under any stretch of imagination, be the interpretation of these two laws.
The Court allowed the petition and imposed 50000 Rupees cost on the private respondent.
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