1. AHMED OWAIS PIRZADA, MEMBER TECHNICAL.---This order shall dispose off the appeals, filed by Raja Asir Munir, IDHS International Courier and Cargo Services, Rawalpindi and Nauman Anwer Butt, DHIL World Wide Express under section 42 of the Competition Act, 2010 against the consolidated order dated 21st December, 2012, passed by the. Competition Commission of Pakistan.
2. 2.Briefly the background of the appeals is that the Competition Commission of Pakistan received a complaint from respondent No. 1, alleging fraudulent use of its stylized and artistically created logo trademark by the appellants without any permission or authorization or consent of the respondent, which being false, deceptive and misleading and also capable of harming its business was in violation to the provision of section 10 of the Act. The Commission conducted an inquiry under section 37(2) of the Act, concluding that both the appellants used the logo, which, were identical in colour and style of the complainant's trademark on the bill board/hording/sign board for advertisement, which prima facie gave an impression that the appellants were authorized dealers of the complainant, which was not correct, impression, hence such use of mark which was identical to the respondent's trademark, prima facie was misleading the consumer and was also capable of harming the business interest of the respondent in violation of section 10 of the Act. The report recommended that the conduct of the appellants warranted initiation of proceedings against them under section 30 of the Act.
3. 3.Based on the prima facie findings of the inquiry report, show cause notices were issued to the appellants on 22nd February, 2012, pursuance to which appellants and all other parties were afforded an opportunity of a detailed hearing. Finally the Competition Commission of Pakistan concluded that the manner in which marks under question were printed and advertised look deceptively similar to that of respondent's trademark. Consequently the appellants were penalized vide order dated 21st December, 2012 which had been impugned in the instant appeals.
4. 4.In their appeals the appellants stated that the impugned order dated 21st December, 2012, passed by Competition Commission of Pakistan was illegal, against the law and facts of the case on record and passed arbitrarily. It was stated that neither font, colour did have any resemblance with the respondent's trademark nor style has any similarity with the styled trademark of the respondent. It was further stated that the impugned order was without jurisdiction and not sustainable in the eyes of law. The appellants stated in their appeals that the inquiry report and even the order passed had failed to bear out any misleading information being passed by the appellants or any impression which was basically different from actual one, in clear term there was no deception in using the word. IDHS international couriers. The appellants stated in their appeals that from the plain language of section 10(b) of the Competition Act, it was apparent that the lawmakers divided the allegation in to distribution of false or misleading information and distribution of information lacking a reasonable basis related to character, method or place of production, properties, suitability for use or quality of goods while in the instant case there is no distribution of any false or misleading Information and no such information was passed on to the customers regarding the DHL World Wide Express, which affected the price, character, method or place of production, properties, suitability for use or concern the qualities of goods. The appellants took the position that the complaint was not properly instituted, signed and verified by the competent and authorized person. PLD 1971 Supreme Court page 550 was referred in this behalf.
5. Further, the complaint, which was filed with wrong name of the appellant's company, was not having affidavit with it before the Competition Commission of Pakistan. It was stated that the appellants were neither using the trademark nor distributing false or misleading information regarding the fact that the appellants were authorized/permitted by the respondent. It was further stated that very important questions of law and facts were involved in the matter which could not be adjudicated upon without recording the evidence of both the parties. The pleadings were itself not evidence, it should be proved after recording evidence which was not brought on record.
6. 5.Learned counsel for IDHS while reiterating the position taken in the appeal stated that "IDHS international couriers" was a trademark having trademark No-333053 and applied copy right registration with the concerned department. The trademark authority and the copy right authority under the relevant legislation has power upon the case where DHL World Wide Express registered its trademark and copyrights, therefore, the order in the given circumstances was without jurisdiction. Learned counsel further stated that the appellant never accepted, received, dispatched or delivered the goods with the name of respondent. The appellant never presented himself as agent, distributor or employee of the respondent. The learned counsel further stated that the appellant neither developed a web page, letter head, visiting cards, pamphlets, brushers, leaflets, booklets, e-mail ID by the name of respondent nor found in any correspondence or communications with the name of respondent with any third party. Thus the inquiry report, show cause notice and the subsequent order is without any basis lacking material evidence and liable to be set aside in the interest of justice.
7. 6.Learned counsel for DHIL World Wide Express explained the position taken in the appeal, filed in this regard further stating that the. Resolution of the Board of Directors appended with the complaint permitting the institution of the complaint through the said authorized person was illegal, unlawful having no legality in the eyes of law. The Board Resolution was not signed and names and designations of DHL Board of Directors were neither obtained nor filed with the complaint even not filing power of attorney in the matter. The learned counsel after getting permission to give some new grounds in addition to what was given in the appeal argued that the office referred in the inquiry was vacated by the appellant much earlier than the inquiry ordered in this behalf. He referred an agreement which according to him was signed by the owner of the said office with some other party, however, learned counsel failed .to satisfy this Tribunal that why such kind of evidence couldn't be produced before the Competition Commission of Pakistan. On a question, the learned counsel could not satisfy the Tribunal that why the mark-DHIL was used by the appellant which had resemblance with the mark DHL of the respondent. Learned counsel took the plea that he was involved in this business with the consent of the respondent No.1 and was duly authorized to collect Parcels, envelops on behalf of DHL as his agent, however, he couldn't produce any evidence in this regard which could even slightly strengthen the aforesaid position taken by him.
7. Conversely, learned counsel for respondent No. 1, Messrs DHL Pvt. Ltd, while appearing before this Tribunal stated that the actual position regarding the issue involved in the matter was discussed in Paras-43 and 44 of the impugned order, which was passed after getting a detailed inquiry and hearing the appellants in detail. He reiterated the position, taken in the said order. Learned counsel further stated that trademark Law had its own sphere and its own implementation whereas Competition. Law inter alia was mandated to inhabit deceptive marketing practices also for the sake of free competition. He argued that it had become evident from the contents of inquiry report, pictures of the spot, comparison of the marks that marks used by appellants were deceptively similar with the respondent's mark. Learned counsel stated that while passing the impugned order, a detail hearing was also held by the Commission in which every opportunity was afforded to all the respondents including the appellants to clear their positions. Learned counsel argued that the detailed reasoning to establish the element of deception regarding the activities of the appellants were discussed in the impugned order which being in accordance with provisions of Competition Law cannot be distinguished or defended by misinterpreting it through any different meanings. The element of deceptive marketing practice was established from the concrete evidence, admitted and available on record in form of pictures and mark which cannot be assessed on the whims and wills of the appellants. It was stated by the learned counsel that all relevant questions in the given facts of the case to decide the element of deceptive marketing practices, on touchstone of relevant law were addressed explicitly in the impugned order where after there was hardly any need of deciding the matter on the basis of questions formulated in grounds of appeal. It was prayed that the instant appeal might graciously be dismissed.
8. Learned counsel for respondent No. 2, Competition Commission of Pakistan while endorsing the arguments, advanced by learned counsel for respondent No. 1 stated that the facts available on record as well as findings of Hon'ble Competition Commission of Pakistan clearly showed that the appellants had used its alleged DHS or IDHS logo in a manner almost identical to of that of DHL logo as well as the identical colour scheme design and data. Furthermore, the appellants failed to come up with the logical reasoning or justification for adoption of its impugned mark "DHS" either/or allegedly IDHS, whereas DHL were incorporated by three friends, Adren Dalsey, Larry Hillblom and Robert Lynn, having DHL as an essential part of the company name and also used as Trademark.
8. Learned counsel further vehemently denied that the order of the Commission was bad in law, as stated and it was denied that the same could be contrary to the facts, baseless, unjustified and without jurisdiction or that the same could be quashed straightway under the law as erroneously asserted by the appellants. Learned counsel stated that the appellants failed to explain as to why and how the order of the Hon'ble Competition Commission was bad in law and how it was allegedly contrary to the facts, baseless, unjustified and without jurisdiction and why the same could be quashed under law. Such statements without any cogent arguments and corroborative case law remained inconsequential to the titled appeal. Learned counsel argued that the appellants unauthorizedly continue to use the respondent's/DHL stylized or artistically created logo without any reasonable justification. Learned counsel denied that from the plain language of section 10(b), it was apparent that the lawmakers divided the allegations in to, distribution of false or misleading information and distribution of information lacking a reasonable basis related to character, method or place of production, properties, suitability for use or quality of goods and it was categorically denied that in the instant case there wasn't any information passed on to the customers regarding "DHL" which affect the price, character, method or place of production, properties, suitability for use or concern the qualities of goods or that the inquiry report and the subsequent order was silent on the subject of any material evidence which verifies that the appellants were using the name of respondent No-1 which distrust the market of respondent No-1 and that the order could be liable to be deleted on this ground as falsely alleged.
9. Analysis
9. The appeals filed in this regard have been perused and learned counsel for the appellants have been heard. The learned counsel for the respondents have also been heard and the Para-wise comments submitted in this behalf have been gone through. The impugned order of the Competition Commission of Pakistan has been perused as well. After completing the aforesaid exercise we are of the view that the following issues are to be examined for orders.
(i) Whether the complaint was competently filed through a duly authorized person?
(ii) Whether the Respondents have acted in contravention of the provision of subsection (1) of section 10 of the Act in general and in particular: (a)are disseminating false/misleading information to the consumers lacking reasonable basis regarding inter alia in terms of clause (b) of subsection (2) of section 10 of the Act.
10. (b)are fraudulently using the trademark of the Complainant in violation of clause (d) of subsection (2) of section 10 and (c)such practice is capable of harming the business interest of the Complainant in violation of clause (a) of subsection (2) of section 10 of the Act?
(iii) Whether the order of the Competition Commission is bad in the eyes of law.
10. The issue that whether the complaint was competently filed through a duly authorized person has thoroughly been examined by the Competition Commission of Pakistan, however since the same has again been raised by the appellants, therefore, we have also looked into it. The perusal of record reveals that Mr. Nouman Anwer Butt raised the issue that the complaint was not filed by a competent person. He argued that the Board Resolution did not contain the name and designation of Board of Director. He placed reliance on PLD 1971 Supreme Court 550. However, it was noted that the complaint was filed by the Company Secretary namely Mr. Muhammad Haneef Idrees, which was not only bearing the signatures but also beard the seal of the respondent's undertaking. A certified true copy of Board Resolution No. 12/2011 by circulation passed on 17th August, 2011 was also annexed with the complaint. In the said Board Resolution along with Company Secretary, Mr. Sarfaraz Sadiqui, Chief Executive Officer of the company was also authorized on behalf of company in the matter to take all necessary measures, required in this regard before the Competition Commission of Pakistan and all courts, arbitrators, Tribunal, Forum or Administrative Authority in relation to the said matter. The power of attorney of the counsel was also duly-signed by Mr. Muhammad Haneef Idrees, Company Secretary of the complainant who was duly authorized in this regard. On the other hand, Mr. Nouman Anwer Butt failed to provide anything to the contrary in support of his contention. In these circumstances we do not find any justification to interfere in the aforesaid issues, already settled by the Competition Commission of Pakistan.
11. 11.Before examining the remaining issues including contravention of the provision of subsection (1) of section 10 of the Act, we would like to deal with certain objections raised by the respondents.
12. Raja Asir Munir in his appeal has stated that IDHS International Courier is a trademark having trademark No-333053 and applied for copy right registration with the concerned department. The trademark authority and the copyright authority under the relevant legislation have the power upon the case where "DHL World Wide Express" registered its trademark and copy right, therefore, the impugned order in the given circumstances is without jurisdiction. The aforesaid issue has been examined and it has been observed that involvement of a person in violation of provisions of the Competition Act provides necessary jurisdiction to the Commission to take cognizance in such type of situation for necessary orders. In these circumstances, the objection raised by Raja Asir Munir is totally uncalled for and unjustified.
13. 12.During the hearing the learned counsel for DHIL submitted that the respondent has permitted him to use its trademark, however, he couldn't produce any evidence in this regard. He further stated that the images, pictures referred in this regard have no authenticity, while he couldn't bring forward any proof to substantiate his claim. It is, therefore, observed that the aforesaid objection has again without any cogent reason.
14. 13.Now coming to the issue that whether the appellants have acted in contravention of the provision of subsection (1) of section 10 of the Act in general or in particular, learned counsel for IDHS and DHIL have been asked to explain the logical reasoning and justification for adoption of marks IDHS and DHIL, however both of them could not give any justification which could be considered convincing to have mark almost identical to DHL. On the other hand a company was incorporated by three friends, Adrian Dalsey, Larry Hillblom and Robert Lynn having DHL as an essential part of company name and also used as a trademark. It is, therefore, observed that mark having resemblance with DHL is intentionally selected to confuse the market. Again the aforesaid logo has a lot of similarity with DHL.
15. 14.As regards the contravention of the provision of the section 10 of the Act in general or particular, one needs to be conscious that the interpretation of fraudulent use of trademark has to be in the context of deceptive marketing and would thus have a broader scope. To analyze the provision of section 10 more conveniently the said section 10(2)(d) is reproduced as below:- "fraudulent use of another's trademark, firm name and product labeling or packaging"
16. Keeping in view, the nature of contravention, it is not the subjective intend but the objective manifestation of that intends that will establish the fraudulent use. The appellants are although doing the business in their own name i.e IDHS and DHIL yet using a logo which is deceptively similar to the complainant's trademark for which no plausible justification has been placed forward.
17. During the proceedings before this Tribunal, the learned counsel for DHIL and IDHS have been asked to explain the logical reasoning and justification for adoption of marks, IDHS and DHIL, however, both of them could not give any justification which could be considered convincing to have mark almost identical to DHL. On the other hand, a company was incorporated by three friends, Adrian Dalsey, Larry Hillblom and Robert Lynn having DHL as an essential part of company name and also used as trademark. The appellants who are undertakings within the meaning of Competition Act 2010 have opened outlets and carrying on their business clearly and openly using the DHL logo.
18. Such use is unauthorized and constitutes Act of deceptive marketing practices within the meaning of section 10 of the Competition Act, 2010. The Appellants have used their alleged IDHS and DHIL logos in a manner almost identical of that DHL logo as well as identical colour schemes, design and getup. On comparison, these marks bear such resemblance which is likely to cause confusion and deception. In our considered view in the present case taking these factum into the account, we find the appellants marks misleading and deceptive and capable of being taken as a mark of the respondent by an ordinary consumer.
19. 15.Coming to the third issue that whether the order of the Competition Commission of Pakistan is bad in the eyes of law being against the fact and passed arbitrarily. The appellants have failed to explain as to why and how the order passed by the Competition Commission could be illegal and how it is against the law and facts of the case and passed arbitrarily. Such statements without any cogent arguments and corroborative case law remain inconsequential to the appeals. Further the contention of the appellants that the Competition Commission has passed the order without having jurisdiction to do so is incorrect. It is observed that since the appellants have been involved in violation of the provisions of Competition Act, 2010, therefore, the Commission has the necessary jurisdiction and the case has been validly and competently filed and decided by the Commission.
16. In the circumstances, after analyzing the relevant facts and material available on record, we have come to the conclusion that finding recorded by Competition Commission of Pakistan are based on proper appraisal of relevant provisions of Competition Law as well as other D material brought on record. The same are, therefore, maintained.
20. The appeals of the appellants, therefore, being devoid of merits are dismissed, leaving the parties to bear their own costs.