2/11/22, 10:07 AM 2019 C L D 279

2019 C L D 279
[Competition Appellate Tribunal]
Before Justice (Retd.) Mian Fasih ul Mulk, Chairman, Justice (Retd.) Miftah
ud Din and Ahmed Owais Pirzada, Members Technical
GHULAM FAREED and 8 others---Appellants
Versus
COMPETITION COMMISSION OF PAKISTAN and another---Respondents
Appeals Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9 of 2018, decided on 12th September, 2018.
(a) Competition Act (XIX of 2010)---
----Ss. 10(1), (2)(d), 37(2), 38(5) & 41---Deceptive marketing practice---Fraudulent
use of other's trademark---Imposition of penalty---Complaint against appellants was
that they were using the registered Trade Mark 'TAIZGAAM' of the complainant
without any permission and legal justification---Complaint was inquired into under
S.37(2) of the Competition Act, 2010--- Competition Commission on the basis of
inquiry report awarded penalty of Rs.300,000 to each of the appellants---No
evidence was available to the effect that appellants had deliberately used the trade
mark "TAIZGAAM" to harm the business interest of the complainant---Appellants
were using said trade mark since long, even prior to its registration---Appellants,
after getting knowledge of its registration had undertaken not to use the same---
Reformatory and regulatory object of avoiding deceptive marketing practices had
been achieved through undertaking given by the appellants---Appellate Tribunal
observed that appellants, if failed to comply with the undertaking given, would be
liable to pay a penalty of Rs.100,000 per day from the date of impugned order till
actual compliance and initiation of criminal proceedings under S. 38(5) of the
Competition Act, 2010---Appeal was partly allowed and order of Competition
Commission regarding penalty was set aside, while maintaining the remaining
order of the Commission.
(b) Competition Act (XIX of 2010)---
----Preamble---Spirit of Competition Act, 2010---Act provided free competition in
all spheres of commercial and economic activity to enhance economic efficiency
and to protect consumers from anti-competition behaviour---Spirit of Competition
Act, 2010 clearly indicates that the objective of the law was to ensure fair business
practices.
Muhammad Naveed Farhan for Appellants (in Appeals Nos. 1, to 6 of 2018).
Faisal Iqbal Khan for Appellants (in Appeals Nos. 8 and 9 of 2018).
Ch. Shafiq ur Rehman for Appellants (in Appeal No. 7 of 2018).
Nouman Ameen Farooqi along with Arshad Javed, Deputy Director and Farhan
Shah, Assistant Director Legal for Respondent No.1.
Muhammad Muneeb Ali, Managing Partner along with Syed Muhammad Junaid
Mumtaz for Respondent No.2.

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JUDGMENT
AHMED OWAIS PIRZADA, MEMBER TECHNICAL.---
Ghulam Fareed (Proprietor Niaz Corporation), Grain Market, Bahawalpur,
appellant in Appeal No.01/2018 and other appellants at Sr. Nos. 2 to 9 have filed
Appeal No. 02/2018 to 09/2018, against the Judgment and order dated 29-12-2017,
passed by learned Competition Commission of Pakistan.
2. The brief background of presentation of above appeals are that respondent
No.2 Al-Rehman Oil Mills, lodged a complaint against appellants that they are
using the registered Trade Mark "TAIZGAAM" without any permission and legal
justification, therefore, the appellants are guilty of deceptive marketing practices
under section 10 of the Competition Act, 2010. The complaint of respondent No.2
was inquired into under section 37(2) of the Competition Act, 2010 and on the
basis of inquiry report, show cause notices were issued to appellants. After
obtaining the comments of Appellants, the learned Competition Commission of
Pakistan heard the arguments of counsel for the parties and awarded penalty of
Rs.300,000/- to each of the appellants under section 10(1) Competition Act through
the impugned Judgment and order. Aggrieved from the same all the appellants have
preferred these appeals. As a common question of law and facts are involved in all
nine appeals, therefore, they are disposed off through present single Judgment.
3. The appellants at Sr. Nos. 1 to 6, have stated in their appeals that the word
"TAIZGAAM" is originally created and used by the appellants before the
registration of this Trade Mark by the respondent No.2. It has further been stated
that this important and exclusive point of determination has not been considered by
Competition Commission of Pakistan, while deciding the matter. It has been argued
that like "COLA", the word "TAIZGAAM" could be used by the animal food
manufacturers in addition to their distinctive names. It has been submitted that the
word "TAIZGAAM" was always used with other distinctive names by the
appellants for their independent recognition. It has been stated that the appellants
were never associated while holding inquiry by the Competition Commission of
Pakistan. It has further been stated that the colour scheme and the animal picture,
which could be indentified and understood by a naked eye and the Trade mark of
respondent No.II are fairly different from the one, used by the appellants. It has
been pleaded that the Competition Commission of Pakistan has not decided the
case in accordance with law and the impugned order has been passed in hasty
manner without applying the judicious and administrative mind on the subject. It
has been prayed that the impugned order of the Competition Commission of
Pakistan may be declared illegal, unlawful and without lawful authority.
4. The appellants in their appeals at Sr. Nos. 7 and 8, in addition to the aforesaid
grounds, have stated that their contentions through written reply, filed by them,
were not made part of the court file by the Competition Commission of Pakistan. It
has further been stated that the Commission has held the appellants guilty of
violation of section 10(2)(a) of Competition Act, 2010 despite having found
undeniable defence that the products being marketed by the appellants were
carrying the name of appellant's contact numbers and other information relating to
them. It has been pleaded that the Competition Commission of Pakistan failed to

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establish any single evidence, holding the appellants for guilty of use the Trade
mark of Respondent No.II. It has been prayed that the impugned order, passed by
Competition Commission of Pakistan may be set aside.
5. The appellant mentioned at Sr. No. 9 in his appeal has stated, in addition to
the aforesaid grounds, that the written commitment, filed by the appellant on the
direction of the Competition Commission of Pakistan has completely been ignored
by the Competition Commission while deciding the matter. It has further been
stated that the respondent No.I has failed to appreciate this fact that the appellant
has stopped selling the products prior to issuance of Show cause notice. It has been
submitted that the impugned order violates the provision of section 24-A of the
General Clauses Act 1897 as it lacks reasons and non-consideration of submissions
and documents furnished by the appellant. It has been argued that the impugned
order also violates right to trade and business as enshrined under Article 18 of the
Constitution. It has been prayed that the impugned order of Competition
Commission of Pakistan may be set aside.
6. During the course of hearing, the learned counsel for the appellants have
repeated their arguments, mentioned in their appeals, further arguing that despite
their willingness to abide by the law and the directions of the Competition
Commission of Pakistan not to use the logo of the respondent No.II, the
Commission has imposed penalty of Rs.300,000/- on all the appellants vide order
dated 29.12.2017, which is unjustified. The learned counsel has pleaded that in the
circumstances stated above and keeping in view the grounds mentioned in their
appeals, the impugned order of the Commission may be set aside.
7. The learned counsel for respondent No.II has stated that almost all the
appellants, during the course of hearing before Competition Commission of
Pakistan have expressed their willingness to abide by the discipline decorum
prescribed under section 10(1) of the Competition. Act, 2010. However, the
appellants have been violating the aforesaid provision of the law and are involved
in deceptive marketing practices by using registered Trade mark of the respondent
on packaging and labeling of their products that akin along with the font and colour
scheme of the respondent. It has further been stated that the respondent has got
registered the name 'TAIZGAAM' on 7th October, 2015, bearing registration
No.332864, however in the presence of stay order, issued by this Tribunal against
the order of the Competition Commission of Pakistan, it is not possible for the
respondent to proceed against the appellants under section 10(1) of the Competition
Act, 2010 and in pursuance of Competition Commission order dated 29.12.2017. It
has been stated that the impugned order of the Commission provides that in case of
failure to comply with the direction of the Commission, the appellants shall be
further liable to a penalty of Rs. 100,000/- (one hundred thousand) per day from the
date of impugned order. It has been prayed that the appeals, filed by the appellants
may kindly be dismissed, so that the respondent could approach Competition
Commission of Pakistan to get its order implemented.
8. The learned counsel for respondent No.I has stated that clear contraventions
of section 10-A of the Act stand established against all the appellants, however in
light of the willingness of the majority of the appellants during the course of

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hearing to act in accordance with the directions of the Commission, the

Commission has already taken lenient view, imposing penalty of Rs. 300,000/-
(three hundred thousand) on all appellants, which according to learned counsel is
symbolic, keeping in view the volume of their business during the period. It has
been pleaded that the impugned order of the Competition Commission of Pakistan
may be maintained, dismissing all appeals filed in this regard, further directing the
appellants to strictly abide by section 10(1) of the Competition Act, 2010.
9. During the proceedings before this Tribunal, all the appellants and respondent
No.II are of the view that the Appellate Tribunal may give waiver of the penalty,
imposed by Competition Commission of Pakistan on all the appellants, passing
directions that violation of section 10(1) be checked strictly and in case violation is
seen, the appellants shall be made liable to a penalty of Rs. 100,000/- (one hundred
thousand) per day from the date of impugned order of the Competition Commission
of Pakistan till actual compliance further initiating criminal proceedings under
subsection (5) of section 38 of the Act. The learned counsel for the Commission
has however, expressed his reservation in this behalf, requesting that the appeals
may be dismissed and the impugned order passed by the Competition Commission
of Pakistan may be endorsed completely.
10. We have gone through the appeals, filed by the appellants and heard the
learned counsel for the appellants and respondents quite in detail. Section 10(1) of
the Competition Act, 2010 provides that;
"no undertaking shall enter into deceptive marketing practices, which includes
false or misleading comparison of goods in the process of advertising or
fraudulent use of another's Trade Mark, firm name or product labelling or
packaging".
The preamble of this Act also provides free competition in all spheres of
commercial and economic activity to enhance economic efficiency and to protect
consumers from anti -competitive behavior. The spirit of the Competition Act
clearly indicates that the objective of the law is to ensure fair business practices.
During the proceedings before this Tribunal, the appellants have expressed their
willingness to act in accordance with the directions of the Commission. The
appellants have once again made a commitment before this Tribunal that they will
not only abide by section 10(1) of the Competition Act, 2010 but also follow the
directions of the Competition Commission of Pakistan mentioned in the order
impugned before this Tribunal. We understand that the objective of the Competition
Law in this particular case is achieved and the complainant who is respondent No.2
before us is completely comfortable if the appellants abide by the provisions of
section 10(1) of the Competition Act, 2010 and in case of failure to comply with,
they would be liable to a penalty of Rs. 100,000/- (one hundred thousand) per day
from the date of impugned order till actual compliance and initiation of criminal
proceedings under section 5 of section 38 of the Act before a court of competent
jurisdiction. The appellants have also submitted that they are abiding by the
aforesaid section of the Act and directions of the Commission. They have further
admitted that in case, anyone of the appellants found guilty of not complying with
the directions of the Commission and spirit of section 10(1) of the Competition

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Act, 2010, shall be liable to a penalty of Rs. 100,000/- (one hundred thousand) per
day from the date of impugned order till actual compliance.
11. From the above discussion, we have come to the conclusion that there is no
evidence to the effect that the appellants have deliberately used the Trade mark
"TAIZGAAM" to harm the business interest of Respondent No.2. It is evident from
the record that the appellants were using this Trade mark since long even prior to
registration of this Trade mark in the year 2015 in favour of Respondent No.2.
After getting knowledge of registered Trade mark, all the appellants have
undertaken not to use the aforesaid Trade mark anymore. The reformatory and
regulatory object of avoiding deceptive marketing practices has already been
achieved through undertaking given by appellants not to use the aforesaid Trade
mark. The quantum of award of penalty depends upon wrong and illegal gains
achieved by appellants - through use of aforesaid Trade mark with corresponding
loss in business to respondent No.2. These disputed and controversial question of
facts require recording of pro and contra evidence but neither any issue has been
framed in this connection nor Respondent No.2 has supported the contents of his
complaint through an affidavit or statement before the Commission. The
complainant has neither recorded his statement on oath in support of his complaint
in order to afford an opportunity to the appellants to cross-examine him in respect
of the complaint. Similarly, no notice to admit documents or certified copies
available on record has been issued by learned Competition Commission of
Pakistan to the appellants. In absence of any oral or other reliable documentary
evidence on record, the learned CCP was not justified to impose penalty on the
appellants. The appeal is, therefore, partly allowed and order of Competition
Commission of Pakistan regarding penalty is set aside, while the remaining order of
Competition Commission is maintained.
HBT/14/CCOP Appeal partially allowed.

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