Trademark under the Pakistani System Versus International System: Comparative Study

Abstract

Traditionally, trademarks were considered as convenient tools for source identification and were granted legal recognition on this premise. However, more recently, trademarks have progressed in a new yet challenging medium as an effective tool for both corporate and social communication.

Given the dilemma, this thesis aimed to evaluate and analysis the current system for trademark in Pakistan and to propose change accordingly.

The thesis argued that which and where Pakistan Trademark legal system is lacking by analytical approach by internal laws and as comparatively with USA, UK, China, Japan and international standard prescribed by different treaties. In this thesis, I will also discuss protection level available to traders in Pakistan, as trademark is vital to the promotion of trade and the protection of customer interest. Therefore, study on protection of trademark with system/mechanisms in Pakistan will be meaningful. As it is clear from the interpretation of court in the case[footnoteRef:1], it was held that the very purpose of enactment of Trademark Ordinance 2001, as it appears from the preamble, is to provide for registration and better protection of trademark and for prevention of the of fraudulent marks; and that an unwary purchaser should not be deceived and a confusion should not arise in the mind of a common man so as to mislead him to purchase product of one manufacturer for the other considering it to be same, which he actually wanted to purchase. [1: ]

The Background and General Overview of Thesis

Currently, few could realistically argue against the significance of trademarks in modern society. Yet, despite the recognition of the importance of trademarks, mirrored in their explicit legal protection under most constitutions the topic was until recently overshadowed by other fields of intellectual property. Even though I have faced many problems while doing my research on thesis because Trademark books are not very common and available in Pakistani markets and not even internet material is having any connection with Pakistan simply because not more research has been done on Trademarks. I used to visit many places on regular basis and meet many people throughout my thesis in order to gather some information on my topic. Because of such problems I was compelled to limit my research based on Pakistan.

And this cause me to think again and again that which methodology I should adopt to explain fully what I really want to discuss in my thesis. So finally after lot of discussion with my supervisor, I wasn’t having any other option but to adopt multiple methodologies all together. So my thesis is mainly based on Analytical & Quantitative research.

My main agenda was to work on trademark and by any mean it may be a source for awareness in Pakistan. While doing my research, I experienced that mostly researches done on US and UK which motivated me to do highlight Pakistan with comparison to other countries and which is very difficult task for me as I am facing too much difficulties while gathering the material due to unavailability of books in our market and unawareness about the trademark importance in our society. In the start it was so disturbing and so hard for me to make my research so I was thinking to change my Topic but I realize the need when I saw lack of awareness in our society about trademark. I was running low budget but even though somehow I managed to get books from India as these were referred to me, which costs me heavy but by the time I was so compassionate and took challenge to complete this thesis and wish to break the ice in trademark industry of Pakistan.

Research Purpose and Objectives

Given the broad nature of the issues highlighted above, it is important to confine them for the purpose of this thesis. Therefore, the main question that the thesis will focus on: -

How should we improve modern trademark functions without harming the interests of any of the market players involved? To answer this research, question the thesis will carry out the analysis through the lens of the Internal Level. This will facilitate the understanding of the modern realities of trademarks and will add a practical dimension to the debate.

To answer this question, the following research objectives, need to be fulfilled:

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1. To discuss the evolution of trademarks and their relationship to other related concepts such as China, UK, USA, Japan,
2. To critically analyze both the traditional functions and the modern functions of trademarks,
3. To provide theoretical grounds on which the modern functions of trademarks can be incorporated into the Pakistani trademark system,
4. Trademark can play vital role in china Pakistan economic corridor? Or Can trademark boost cpec development and can play vital role in Pakistan Business? Or Can trademark resolve Business investment protection issues in cpec development
5. Unsigned trademark treaties are obstacle in development of Pakistani Business
6. Trademark Procedural mechanism making it lot difficult to resolve modern era needs in Pakistan
7. Lack of trademark Law enforcement encourages piracy makers in Pakistani Business markets
8. Internationally recognized standards of Trademark unavailability cause Pakistani Business growth slow down.
9. Why international investors are not interested in Pakistan
10. Trademark law and accountability in Pakistan
11. What cause UK to progress more in Trademark and what makes Pakistan to grow slowly
12. What cause USA to attract international investors and why not Pakistan
13. What are the reasons of believing investors in UK to invest and why Pakistan is back to give such protections?
14. What are the pros and cons of Trademark law in Pakistan?
15. What should government do to improve and implement trademark reforms in Pakistan
16. Why Pakistani traders/manufacturers are avoiding trademark
17. What benefits can take investor of small industry if trademark protection is given

Methodology

Given that the aim of this thesis is to Analyze features of the Trademark and to propose change accordingly, elements of doctrinal research will be used. Under a doctrinal analysis, the essential features of the legislation and case law will be critically examined. Then all the relevant themes will be combined to establish an arguably complete statement of the relevant law. Therefore, this thesis will commence by locating the sources of the law that are relevant to answering the research questions, and will then proceed to interpreting and analyzing the text. Doctrinal analysis can take a variety of forms, including theoretical research and reform oriented research. For the purpose of this thesis, a reform oriented approach, which is premised on the idea of evaluating the adequacy of existing rules and recommending changes, will be used.

However, relying on pure doctrinal analysis for the purpose of this thesis could be inadequate. In discussing the modern functions of trademarks, it is important to address the derivations of the law, its effects on the society, and its effect on the consumer. Therefore, an interdisciplinary approach will also be employed. Such research method involves any form of integration or synthesis between two or more disciplines. From a legal perspective, interdisciplinary research involves the connection of traditional methods of legal research with methods and techniques from other disciplines. In particular, for the purpose of this thesis, Overall, a hybrid approach which employs doctrinal research in addition to interdisciplinary research will be used to address the research objectives.

Structure

This thesis is mainly divided into Four Parts in addition to an introduction (Part One) and conclusion (Part Four).

Part Two:

This chapter will define Trademark under Internal Law for better understanding to subject. In light of any legal subject the source is always standard and as far as Trademark is concerned every country is always trying to match their standards to internal law and held accountable where they are lacking.

In my thesis internal law and Pakistani jurisdictional structure of Trademark is analyzed. This debate results to identify where Pakistani system is standing with the lenses of Internal Law.

Part three:

The chapter emphasis on First Class Countries Jurisdictional Structure of Trademark, basically to have solid analysis results to match Pakistani jurisdictional Structure of Trademark, unless you will not sneak into other jurisdictional systems you won’t have idea how fast they growing the economy and how they are taking initiatives to improve their Trademark Jurisdiction systems.

Part four:

Building on the sneak peek discussed in Part three, this chapter explores the realities of the modern functions and discusses whether they should be legally recognized in Pakistan also. The chapter is divided into Three main parts. The first part digs into the comparative conclusion with Internal Trademark Law and Pakistan.

And on Second multi-jurisdictional systems are critically analyzed with Japan, USA, UK and China to match Pakistani Trademark structure and where we are lacking.

On Third, there are recommendations as a critique that how can Pakistan improve in Trademark and what benefits can be there in this regard.

Bibliography

1. Abbreviations
2. CFI Court of First Instance
3. CTMR Community Trademark Regulation
4. EC European Community
5. ECJ European Court of Justice
6. EU European Union
7. FTDA Federal Trademark Act
8. INTA International Trademark Association
9. ITU Intent-to-Use
10. OHIM Office for Harmonization in the Internal Market
11. PTO Patent and Trademark Office
12. TLRA Trademark Law Revision Act
13. TRIPS Trade-Related Aspects of Intellectual Property Rights
14. WIPO World Intellectual Property Organization XV
15. The concept of trademark