TRADE MARKS ORDINANCE, 2001 AN INTRODUCTION

SYNOPSIS:
1. Nature, Scope and Objective of Trade Marks Ordinance, 2001
2. What is Trade Mark?
a. Definition
b. Explanation
c. Essentials
d. Functions
3. Conclusion

1. Nature, Scope and Objective of Trade Marks Ordinance, 2001:

The concept of trade is as old as the history of man himself. From times immemorial the
people used to market their goods. The concept of symbolizing the goods with some sings
or symbols took place in the ancient world, when the people started trading on local level.
The concept of symbolizing goods with sings developed when the local trade underwent
in regional trade. Almost 3000 years ago the Indian traders used to engrave their goods
with some marks before sending them to Iran. The Chinese merchants used to symbolize
their goods before 2000 years ago. In middle ages, as the trade became very important
tool of economy, the concept of symbolizing the goods became more popular. However,
with the rise of industrialization, the concept to symbolize the goods with some marks or
symbols became a key factor in the global market-oriented economy. Industrialization
and market-oriented economy provides competitions between traders. Where the traders
struggle to introduce high quality products in the markets, it is important that their
products and goods must be distinguished from the products and goods of the other
traders. At the other hand such distinctive marks or symbols may also help the consumers
to distinguish and purchase the goods of their choice.
The law as to Trade Marks in Pakistan has its origin in English Trade Marks Law. In
England when no statutory provisions were available, the trade marks rights were
embodied in English Common Law and the marks were known as Common Law Marks.
In subcontinent the first statute as to trade mark was enacted in 1940 e
In subcontinent the first statute as to trade mark was enacted in 1940 in the form of Trade
Marks Act, 1940. After partition Pakistan adopted the same Act. But in 2000, Trade
Marks Ordnance, 2000 was promulgated and subsequently in 2004, the Trade Marks
Rules, 2004 were promulgated. Furthermore, Trade Marks Ordinance, is not the extensive
law as to Trade Marks, in fact, it is in addition to other laws in this respect.
The objective Trade Marks Ordinance, 2000, is to amend and consolidate the law relating
to Trade Marks in Pakistan. It further contemplates to modify the law as to Unfair
Competition. The main objective of the Ordinance is;

to lay down procedure for Registration of Trade Marks, and

to prevent the use of fraudulent marks.

2. What is Trade Mark?

(a). Introduction: If the consumer intends to buy the goods of a certain enterprise,
subsequently, when he goes to market there he will find a variety of the same goods
manufactured by different enterprises. He will be puzzled of which enterprises goods he
intended to purchase. And if in misconception he buys the goods of another enterprise
which is not up to his expectations. So, here both the reputation of the first enterprise and
the interest of the consumer shall be injured. At the other hand if the goods of all the
competitor enterprises have been symbolized then it will avoid the said injury. Hence,
such symbolizing of the goods is known is Trade Marks.
(b). Definition: A visual representation attached to goods for the purpose of indicating
their trade origin is known as Trade Marks.
In other words, a mark, sign or symbol which individualizes the goods or services of an
enterprise and distinguishes them from the goods or services of other competing
enterprises is known as Trade Mark.
Trade Mark Ordinance, 2000 defines the term Trade mark under 2(xlviii) as under;
trade mark means any mark capable of being represented graphically which is capable
of distinguishing goods or services of one undertaking from those of other undertakings.
In short Trade Mark is a mark a symbol which denotes the trade origin of certain goods
and distinguishes them from the goods of other sources.
(c). Explanation: As we know that industrial activities are the most important features of
modern world. By the magic of technology the far and flung world has scattered into a
global village. Similarly, the local markets gathered in global market. At present time in
every small market of the world a variety of similar goods are available. For example, a
variety of mobile sets are available in Quetta manufactured by different companies,
enterprises like NOKIA, SAMSUNG, METROLLA etc. Now, to distinguish a mobile set
of NOKIA from others it is important that it shall bear a sign or mark pertinent to it. Such
a mark or sign is known as Trade Mark which basically individualizes mobile set as
NOKIA and distinguishes it from the mobile sets of SAMSUNG, METROLLA and
others.
Trade marks are associated with some vendible goods. The goods bearing a trade mark
are commercially known as Branded Goods. A trade mark is meant to distinguish the
goods of one enterprise or producer from that of the other. This distinction is basically
meant to facilitate the consumer though it also benefits the producer. 1
Trade Mark may be consisted on words, letters, sketches, drawings, colors or on the
combination of one or more of these methods, which can be expressed graphically.
(d). Essentials: Following essentials must be fulfilled by a mark to be called as a Trade
Mark;
(i). Distinctiveness: A Trade Mark must distinguish the goods of its owner from the
goods of other manufacturer. In case of Pakistan Drug House (Pvt.) Limited vs. Rio
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Chemical Company and another, the High Court of Karachi held that the a trade mark is
meant to distinguish the goods of owner of owner of the mark whether registered (or
otherwise like prior user) from that of other manufacturer or producer of the goods.2
(ii). Invented Word: A trade mark if consisted on letters should be an invented word.
Invented word means a word which is solely new one.
(iii). Easy to Pronounce and Spell: If a trade mark is consisted on words, the words
should be easy to pronounce and spell. It should also be easy to write e.g. Jad, Sag, Ren
etc.
(iv). Suggestive of Quality: A trade mark shall not be the one which describes the goods
rather it must be suggestive of the quality of the goods or services, e.g. 1on1, Xlent
etc.
(v). Shortness: It should short. For example, Meg, Sung etc.
(vi). Appealing: Furthermore, a good trade mark should be so pleasant that it should
appeal to both to eye and ear.
(vii). Compatibility: Before, finalizing a trade mark it must be seen that whether it
fulfills all the requirements for registration or not. For the purpose to register a trade
mark, the trade mark must be compatible otherwise, the registrar may refuse to register it.
(e). Functions: The functions of a trade mark may be given as under;
(i). Identification: It identifies the goods of its owner from the similar goods of other
manufacturers or undertakings.
(ii). Assurance of Quality: A trade mark assures the quality of the goods to which it is
associated. It helps the consumer to ascertain the quality of the product.
(iii). Publicity: A trade mark is also a source of advertising the goods to which it is
connected.
(iv). Creating Image: It creates the image of the product to which it is applied in the
minds of the people generally and of the consumers particularly.
3. Conclusion: To conclude, trade mark is a sign or mark which individualizes the goods
or services of one enterprise from the goods or services of others. A mark to be known as
a trade mark it is important that it should be capable of graphical expression and it must
be distinctive one. A trade mark is basically meant to facilitate the consumer and it also
gives benefits to the manufacturer.