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In the matter of Show cause notice issued to M/s neucon pakistan ltd On complaint filed by M/s ferozons laboatories ltd - (24 Sep 2018)

There must be a representation, omission or practice that was likely to mislead consumers in case of deception

MRTP/ Competition Laws

In facts of present case, SCN was issued to Respondent pursuant to Enquiry Report concluded by Commission. Enquiry was authorized on complaint filed by Ferozsons Laboratories Limited (Complainant). Present order shall dispose of proceedings initiated vide Show Cause Notice issued by the Competition Commission of Pakistan to Neucon Pakistan (the Respondent), for prima facie contravention of provisions of Section 10 of Competition Act, 2010.

Complainant pointed out that, despite Respondent's commitment submitted to Enquiry Committee to withdraw its goods from market by 30 November 2017, Respondent had not complied with its commitment and its counterfeits were still available in market. It was case of Complainant that, Respondent had adopted identical or virtually identical trademarks "BYQFREEZ" and subsequently "NEUFREEZ" and associated trade dress e colour(s) green and light blue as a feature of the mark, with dishonest intention. Respondent had committed acts of infringement in adopting and using the al trademark and trade dress in respect of similar medicines/pharmaceutical preparations.

For deception to occur, there must be a representation, omission or practice that was likely to mislead consumers. Advertising statements, disclosures, disclaimers or point of sale representations, were points where consumer first contacts between a seller and buyers. Whether or not a consumer buys a product was immaterial. The law might still be violated. Thus, a practice was material, there was likelihood of consumer deception because it was presumed that, consumer might have chosen differently or made a different purchasing decision but for deception. Performance Health, USA already had registered its trademark "BIOFREEZE" in 2002 in Pakistan and had successfully renewed it for a further period of ten years from 28 August 2009.

Since, its registration Performance Health had been commercially exploiting its trademark by way of export, distribution, marketing and sale of "BIOFREEZE" labelled products in Pakistan. At present, Complainant was sole licensor and authorized distributor of "BIOFREEZE" products of Health Performance in Pakistan. Therefore, registration of Trademark "BIOFREEZ" in favour of Complainant was valid. Consequently, Complainant, held valid right to initiate action(s) against imitators of its trademark and labelling and packaging under clause (d), sub-section (2) of Section 10 of Act.

Complainant had proved beyond doubt that, it was registered proprietor and right-holder of trademark "BIOFREEZE" as well as trade dress i.e. green and light blue labelling and packaging of the products in question. Hence, it had exclusive right to use the trademark including trade dress of "BIOFREEZE". By adoption of an identical trademark i.e. "BYQFREEZ" and trade dress — overall getup, Respondent had contravened clause (d) of sub-section 2 of Section 10 read with sub-section (1) of Section 10 of Act. Commission imposed penalty on Respondent and restrained them from using impugned marks "BYQFREEZ" or any other mark with any prefix or suffix and trade dress that was phonetically, visually and constructively similar as that of Complainant mark "BIOFREEZE" and its trade dress.


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