THE International Property (IP) is not a new concept in world trade. But the scope of IP has been extended over the last 125 years initially from technology to concepts like traditional knowledge and folklore, genetic resources, plant breeders’ rights, geographical indications etc.

With the advent of the World Trade Organisation, IP came to limelight as it became the subject matter of the trade related aspects of intellectual property rights (TRIPS), the third major agreement of the WTO. All member countries, developing or developed, have to accept and abide by the provisions of the various WTO agreements. Being a member of the WTO, Pakistan has introduced various TRIPS compliant national IP legislations among which the Trade Mark Ordinance, 2001, the Patent Ordinance, 2000 and the Copyright Ordinance, 1962 as amended in 2000, are most prominent.

In essence the Intellectual Property Rights (IPRs) are exclusive rights granted to owner of respective intellectual property to use, sell, license or revoke the particular intellectual property. The owner can also bar others from using his intellectual property in the course of trade. However, IP rights should not be confused with monopoly rights. IP rights help foster the business of the IP right owner and promote healthy competition which ultimately benefits the consumers or end users.

There are two types of intellectual property: industrial property and copyrights. Industrial property rights are of territorial nature and are granted by national IP registries such as the trade mark registry, the patent office, the design registry and the geographical indications registry. Copyrights are universal rights which are automatically conferred to the creator of a copyrightable material at the time of its creation. However, a few countries, including Pakistan also issue Copyright Registration Certificates which facilitate in determination of rights and ownership. These rights, both industrial property and copyrights, of the owners are enforced by law enforcement agencies and the courts of law.

However, enforcement of IPRs remains a thorny issue world plaguing both the developing and the developed worlds. The developed countries with stronger IP protection systems emphasise the sanctity of IP rights and assert that these rights must be protected some times even at the expense of larger social benefits. This sensitivity has led to the issue of over-protectionism of IP rights by the owners and has, in some cases, led to results which are in total contravention to ultimate objective of enhanced consumer welfare and choice and of healthier competition in the marketplace.

Therefore, attention of experts as well as national policy makers is being diverted to this problem and countries are increasingly becoming aware how IP may be misused due to overprotection and become a threat to the competition in business and trade. Due to lack of understanding of IP, policy makers may start treating IP policy and competition policy as non-complementary.

The objective of a competition policy is to promote competition and hence consumer welfare. Similarly, objective of an IP policy is to provide incentives for creativity thereby providing newer, better and affordable products and services to the consumers. In this way, the IP regime also complements the competitive environment by encouraging producers with rewards and incentives.

In Pakistan, the IP-competition regime is facilitated by the Intellectual Property Organisation of Pakistan (IPO-Pakistan) and the Competition Commission of Pakistan (CCP) as far as institutional arrangements are concerned. The IPO-Pakistan was created in 2005 as the focal point to manage IP issues and to consolidate the fragmented structure of registration of different IPRs; to coordinate with the different law enforcement agencies such as police, customs, FIA etc., with respect to IPRs.

Similarly, the Competition Commission of Pakistan (CCP) was created in 2007 ‘to provide for free competition in all spheres of commercial and economic activity to enhance economic efficiency and to protect consumers from anti- competitive behaviour.” Recently the CCP has initiated actions against abuse of dominant position by various commercial entities and cartelisation to the detriment of business competition.

The Competition Ordinance, 2007 amply provides measures against anti-competitive behavior but that generally presumes that the subject matter of dispute is either goods or services. Given the emergence of IP and competition policy debate only recently, it is fairly understandable that it will still take a little time for the CCP to develop understanding in this area.

The anti-competition disputes involving IP also follow the same principles as in conventional disputes. There are issues of abuse of dominant position, cartelisation, prohibitive agreements, etc.

A reading of the Competition Ordinance, 2007 reveals that apart from section 10 relating to deceptive marketing practices that may be directly relevant to trade marks and unfair competition, other provisions of the ordinance such as section relating to abuse of dominant position and selective subsections of section on prohibited agreements can be extended to issues relating to IP.

These provisions, although, do not provide an ideal solution, can still be used as take-off points for further understanding. The main area of concern for competition authorities has been patents. Corporate entities may refuse to deal with potential licensees or entail prohibitive clauses in the agreement to the detriment of the licensees. On the other hand, companies may cross-license patents with competitors or create patent pools which may have the effects of cartelisation and affect competition. Patent holders may also misuse their patents where they constitute an integral part of another company’s products. Similarly, there are anti-trust issues involving trade marks, copyrights, geographical indications etc.

Fortunately, Pakistan has both the Intellectual Property Organisation of Pakistan (IPO-Pakistan) and the Competition Commission of Pakistan (CCP) effectively functioning for the last three years and one year respectively. However, there is a dire need of building capacity of both the institutions in order to tackle the IP-competition issue in a manner that is conducive to national, economic and social interests. Similarly, amendments are required in both IP and competition laws.