Deceptive marketing practice

While examining a deceptive claim, Commission usually considers "Net General Impression Test" as overall impression from deceptive advertisement, instead of isolated statements of words.

Courts often consider what an ordinary person in general public would think or how they would act in a given situation.

Show cause notice was issued to respondent-establishment for claiming its product as 30% more fuel efficient as compared to all such products available in the market

Respondent-establishment had made its claim on the basis of a report issued by Agriculture Mechanization and Research Institute (AMRI)

Validity

Report of AMRI did not support purported claim of respondent-establishment, as it had used the contents of that report in a deceptive manner

Claim of respondent-establishment was without any reasonable basis

In its correspondence with the Commission, AMRI denied granting certification or approval to respondent-undertaking and had categorically denied issuing any report, finding or information that could support the claim made by respondent-establishment

AMRI explicitly prohibited respondent-establishment from using it's name for publicity of its products and this was a substantial evidence of AMRI's view on actions and claims of respondent-establishment which could mislead the consumers

Report by AMRI compared products of respondent-establishment with that of one competitor only

Such claim of respondent-establishment was inherently defective and misleading and prohibited under S. 10 of Competition Act, 2010

Deceptive claim was carefully crafted with the intention of deceiving ordinary customer into believing that products of respondent-undertakings were superior in terms of fuel efficiency and would result in additional savings for the users

Respondent-establishment tried to create deceptive impression of performance of the product, enticing consumers by promising significant economic benefits that did not actually exist

By presenting such false and misleading information, respondent-undertaking aimed to gain an unfair advantage in the market, misguiding consumers and distorting their purchasing decisions

Such practice not only undermined consumer trust, but also disrupted fair competition within the industry

It was imperative for regulatory bodies to address such deceptive claims to protect consumers and ensure a fair and transparent marketplace

Respondent-undertaking had violated Ss. 10(1) & 10(2)(b) of Competition Act, 2010

Competition Commission directed respondent-establishment to cease and desist from carrying out deceptive marketing practices by suggesting that their products provide up to 30% additional fuel saving as compared to its competitors

Competition Commission further directed respondent-establishment to modify all advertisements and personal material and promotional material, whether through newspaper, TV campaign, in electronic or digital media, social media posts or on their official websites and to display only truthful claims regarding their product

Competition Commission also directed respondent-establishment to file compliance report with respect to implementation of the directions as well as deposit of penalty by not later than 30 days

Show cause notice was disposed of accordingly.

Respondent establishment launched its new vehicle in market and in its media campaign introductory prices were prominently displayed in large font

Disclaimer stating "for limited time period only" was printed in a much smaller font, making it nearly illegible whereas period of such price was less than 24 hours

Validity

Deceptive marketing is evaluated based on net general impression of an advertisement

Even if a disclaimer exists, it must be clear, conspicuous and prominently placed to eliminate any misleading effect

Absence of key details in the advertisement of respondent, such as limited quantity of vehicles available at the time of introductory price and the abrupt withdrawal of the offer within 24 hours had raised serious concerns regarding accuracy and transparency of respondent's marketing campaign

Competition Commission imposed penalty upon respondent establishment who had acted in contravention of S. 10(2)(b) of Competition Act, 2010 by omitting to disclose material information related to their product characteristics to consumers

Show cause notice was disposed of accordingly.

Even well-informed or experienced consumers are entitled to full disclosures of all material information, especially in transactions involving considerable financial commitments.

Individual responsibility of an undertaking under law is not exempted by industry-wide deceptive market practices.

Show-cause notice was issued to respondent-establishment for making false claims about the housing scheme launched by it

Validity

Respondent-establishment's false claim of being associated with initiatives of Punjab and Federal Government for the provision of low cost housing in Islamabad was likely to attract investors and consumers to invest in the project of respondent-establishment when they might have otherwise considered other competing projects without such a misleading government endorsement

Rather than competing with other similar undertakings on merit, respondent-establishment adopted a strategy to influence consumers' choice by deception regarding government endorsement and geographical location of its project

Respondent-establishment had put itself forward by marketing its project as being sanctioned by government and giving the impression that the same was situated in Islamabad

This might have had the effect of distorting competition within Pakistan because other housing societies marketing similar projects would be at a serious disadvantage and might not able to compete with respondent-establishment as unsuspecting public would believe, understand or perceive respondent-establishments' project to be genuinely backed by government and located in Islamabad

Competition Commission imposed penalty upon respondent-establishment for violation of S. 10(2)(b) of Competition Act, 2010

Competition Commission directed respondent-establishment to inform public-at-large through appropriate clarifications published in two Urdu and two English newspapers giving correct situation regarding location and status of the housing scheme

Show cause notice was disposed of accordingly.

While evaluating "net general impression" or dominant message, the Commission examines express and implied claims contained in an advertisement or promotional campaign and holds the advertiser liable for the both

Advertiser is liable for all such claims if the same are false and / or misleading or lack a reasonable basis.

Show-cause notice was issued to respondent establishment for advertisement in newspaper offering attractive packages to teachers seeking to join an online educational program

Validity

Respondent-establishment was engaged in providing educational services and was registered with Securities and Exchange Commission of Pakistan under Companies Act, 2017, therefore, was qualified to be an undertaking as defined in S. 2(1)(q) of Competition Act, 2010

Once a false or misleading impression was created, subsequent clarifications, whether on a website or elsewhere could not remedy its deceptive effect

It was responsibility of respondent-establishment to ensure that material information was clearly and prominently disclosed within the advertisement itself

Disclaimers must serve to clarify not contradict primary message

Respondent-establishment violated S. 10(2)(b) of Competition Act, 2010 by disseminating misleading information regarding projected earnings, affiliations and qualifications of its Board of Directors

Such misrepresentations were capable of harming business interests of other undertakings thereby constituting violation of S. 10(2)(a) of Competition Act, 2010

Competition Commission directed to initiate criminal proceedings before Court of competent jurisdiction against respondent-establishment pursuant to S. 38 of Competition Act, 2010 and also imposed penalty upon respondent-establishment

Show-cause notice was disposed of accordingly.

While evaluating "net general impression" or dominant message, Competition Commission examines express and implied claims contained in an advertisement or promotional campaign while holding the advertiser liable for both

Advertiser is liable for all such claims express or implied, if they are false, misleading or lack a reasonable basis for the same

Neither proof of intent to disseminate a deceptive claim nor evidence that consumers have actually been misled is required for an act or omission to constitute violations under S. 10 (2)(b) of Competition Act, 2010.

Provision of S. 59 of Competition Act, 2010 is non-obstante clause and no such provision exists in Drug Regulatory Authority of Pakistan Act, 2012

Commission could take cognizance of matters that include deceptive marketing practices, notwithstanding anything to the contrary contained in any other law on the subject-matter

DRAP does not have jurisdiction over the subject matter and Drug Regulatory Authority of Pakistan Act, 2012 does not impose any bar on exclusive mandate of Commission to prohibit and penalize deceptive marketing practices caused by false or misleading dissemination of information.

Show cause notice was issued to respondent company for use of unauthorized and false "CE" (Confromitè Europèene) and "QMS" (Quality Management System) certification in total disregard to global standardization and certification

Validity

Respondent company's misuse of CE Mark and QMS Certification without prior substantiation amounted to a clear violation of S. 10(2) Competition Act, 2010, which had prohibited dissemination of false or misleading information that lacked a reasonable basis regarding character or quality of goods

Respondent company falsely represented its products as compliant with recognized EU standards and implied that they had been certified by an accredited body, SMIS-AGS, when they were not

Respondent company engaged in deceptive marketing practices and such actions had not only misled consumers but also distorted fair competition for the competitors who had actually adhered to required standards

Conduct of respondent company was direct infringement of statutory obligations under S.10(2)(b) of Competition Act, 2010, warranting legal accountability and corrective measures to ensure compliance with law and protection of consumer rights

Commission imposed cumulative penalty of Rs.20,000,000/- (Twenty Million) which was to be deposited in designated official account

Commission directed respondent company to immediately cease, if any, the use of unauthorized CE Mark and QMS Certification on its product packing and in its submissions to any procuring authority / office

Show cause notice succeeded in circumstances.

False or misleading advertising is a matter of protecting competitors and consumers from anti-competitive behaviour and has to be dealt with under Ss. 10 & 30 of Competition Act, 2010.

Misleading information encompasses omission of material information which is pivotal to a consumer's transactional decision.

Show cause notice was issued to respondent company for not disclosing in TV Commercial (TVC), presence of redeemable tokens in paint buckets

Validity

Most consumers do not buy paint themselves, instead painters / contractors actually make the purchase on behalf of consumers

Beneficiaries of tokens are mostly painters / contractors and not the consumers

Omission of required disclosures in TVC makes consumers unaware of presence of redeemable coupons in buckets which are an inducement for painters / contractors on whom consumers are relying for selecting paint

Practice of respondent company inserting tokens without required disclosure in alleged TVC amounted to misleading information lacking reasonable basis with respect to price of its product

This was a deceptive practice under S.10(2)(b) of Competition Act, 2010

Competition Commission held respondent company as non-compliant and penalty of fine was imposed

Show-cause notice succeeded in circumstances.

Advertisement must provide minimum level of substantiation required in terms of competent and reliable scientific evidence

In absence of such evidence claims are called misleading and deceptive regarding products characteristics constituting violation of S. 10(2)(b) of Competition Act, 2010.

Disseminating false or misleading information to consumers in violation of Ss. 10(2)(b) & 10(2)(c) or 10(2)(d) of Competition Act, 2010 constitutes an inherent infringement of S.10(2)(a) of Competition Act, 2010 by detrimentally impacting competitors' business interests

Deceptive marketing distorts fair competition, giving undue advantage to an undertaking in breach of law, to detriment of returns (quantitative interests), brand image and product reputation (qualitative standing) of competitors

Correlation between deceptive marketing of one undertaking and potential harm to the business interests of the competitors, is logical and verifiable

Such principle is applicable unless exceptional circumstances warrant a divergent interpretation in a specific case, potentially absolving the undertaking from liability under S. 10(2)(a) of Competition Act, 2010.

Ordinary consumers are unlikely to investigate types of laboratory tests conducted to substantiate claims made about a product

Such consumers are primarily attracted to bold advertising claims displayed on packaging and in TV Commercials and readily rely upon highly appealing descriptions

It is essential that claims made are clearly and conspicuously qualified to justify their reliability and validity in wide spectrum of real life social conditions.

Respondent failed to present empirical evidence or reliable data, such as comprehensive market research, sales figures, scientific studies or validation by a relevant third-party to substantiate their claim

Advertising such claim by respondent company tentamount to distribution of false and misleading information to consumers in violation of S. 10(2)(b) of Competition Act, 2010

Respondent company committed violations of S.10 of Competition Act, 2010, which continued even after issuance of show cause notice and persisted

Respondent company demonstrated clear intent of deliberate claims for same product in different countries, with worst deception occurring in Pakistan

Competition Commission imposed fine upon respondent company

Show cause notice succeeded, in circumstances.

Complainant, an Association of undertakings, complained that the respondent had resorted to deceptive marketing practices by advertising itself as the only milk declared by Supreme Court to be fit for human consumption

Respondent objected that since the complainant was not an undertaking, therefore, it could not have filed the complaint under S. 37(2) of Competition Act, 2010

Validity

Definition of "undertaking" revealed that the legislature had imposed conditions on legal and natural persons mentioned in S. 2(1)(q), Competition Act, 2010 which was that they must be engaged in provision of goods or services in any manner; whereas, for Association of undertakings no such condition was imposed by the legislature

Plain and ordinary language of the said provision unambiguously provided that it should be an Association of undertakings i.e. where the members were undertakings within the meaning of S. 2(1)(q) of Competition Act, 2010

Complainant was an Association of entities, who were undertakings i.e. engaged in the production and distribution of dairy products

Commission held that the complainant was an "Association of undertakings" and was therefore, an "undertaking" in terms of S. 2(1)(q) of Competition Act, 2010.

Respondent alleged that the Enquiry Committee acted with mala fide by forwarding the documents marked as "Attorney-Client" privileged communication to the complainant for their comments and making the documents part of the Enquiry Report

Validity

Respondent had provided test reports to substantiate its claims made in the advertisement and the reports were forwarded to the complainant for the purpose of carrying out the functions under the Competition Act, 2010

Clause (a) of S. 52 of the Competition Act, 2010 provided that production of a document in the course of proceedings was permitted disclosure

Section 51(1)(c), Competition Act, 2010 provided that where the information so provided was used in course of performance of public functions, mischief clause of S. 51 was not applicable

Respondent had attempted to create an illusion that the Enquiry Committee lacked bona fide or its action suffered from malice

Mere imputation of mala fide or malice against the Officers of Commission was not tenable, in circumstances

Commission found the arguments put up by the respondent to be unfounded and unjustified, in presence of statutory protection under S. 48 of the Competition Act, 2010

Contention of respondent was turned down.

Laboratory test reports, in the absence of categorical and visible disclaimer, do not cater for the claims made in the advertisement.

Burden of proof, in cases of deceptive marketing practices, is on the undertaking concerned i.e. the manufacturer/seller of goods or provider of services that the claims made by them in the process of marketing about their products and/or services are appropriately substantiated

Complainant in such like matters is considered an informer; this is in line with the mandate of the Commission under the provisions of the Competition Act, 2010

Competition Commission is entrusted with the responsibility of looking after the interest of the general public vis-à-vis anti-competitive conduct and to create a level playing field in order to enhance economic efficiency in all spheres of commercial and economic activity and that too in the public interest.

Complainant's case was that respondent was disseminating false and misleading information to the consumers by fraudulently using his registered trademark, trade dress and logo on its marketing material, which was capable of harming his business interest

Respondent challenged the evidence collected through enquiry report as mere oral, i.e. evidence without affidavit of the witnesses and contended that after the meeting of Local Market Committee, it had discontinued the old packing and had changed its bill books as well; that it had arranged bags of cloth for packing and had replaced the old packing with the new one; that its products were not exported hence, it would not mention so on the packing and that over complainant's concern it would not use the tag of being registered on the packing

Validity

Bags of complainant as well as the respondent and the certificate of registration of trademark and copyright issued in favour of the complainant were also on record

Proprietor of the respondent had made a statement on oath that the respondent's previous marketing material was in violation of S. 10 of Competition Act, 2010 being similar with the trade dress of complainant's registered packing, trade name and logo

Bench of Competition Commission, in presence of clear and unambiguous admission on behalf of respondent, held that violation of S. 10 of Competition Act, 2010 stood proved

Respondent's contention with regard to oral evidence was contrary to the facts and evidence available on record

Respondent was directed to cease and desist from using the trademark of the complainant or use the packing material similar to that of the complainant or any other undertaking in future

Show cause notice was disposed of accordingly.

Marketers traditionally focus on designing advertising campaigns and other promotional strategies to promote a brand name

With evolving consumer preferences and laws, presentations, trade dress, have become just as essential for making products and services distinctive and for building brand recall

Cultural diversity of the market makes a compelling case for the importance of product identification by packing and visual impression

Such conduct has resulted in third parties creating look alikes to popular products with similar packaging in order to grab consumers' attention and generate demand for their own products in the market

Law governing the trademark jealously protects the registered trademark for the growth of healthy competition in trade, commerce, industry and those who have invested their money, labour and skills for earning a remarkable reputation should not be allowed to be exploited by rivals who venture to take benefit of the earned reputation by a registered trademark

Object/intention of the Legislature, while enacting the trademark laws, had been primarily focused towards investment and innovation leading to elimination of chances of confusion and deception.

Complainant alleged that the respondent was disseminating false and misleading information by using virtually identical firm names, trademarks and by copying of distinctive items of product packing

Respondent contended that the word 'NIMCO' was generic and common to trade trademark, hence, nobody could claim any right over such particular generic word

Validity

No action was initiated by the respondent under the relevant provisions i.e. S. 73 of Trade Marks Ordinance, 2001 nor any application was filed by him

Jurisdiction of Competition Commission was only limited to the extent of deceptive marketing practices

Respondent was at liberty to take that stance before the Trade Marks Registry in accordance with the procedure provided in Trade Marks Ordinance, 2001

Competition Commission could not entertain the defence taken by the respondent until such direction was issued by the authority concerned, as in the absence of judicial pronouncement, it held no value

Complainant had got its trademark registered and was taking measures for its protection in accordance with law

Competition Commission held that the word 'NIMCO' was not a general descriptive word and the complainant was right in its stead to take appropriate actions in accordance with law to safeguard rightfully earned goodwill, reputation and investments

Competition Commission imposed penalty, reprimanded the respondent to ensure responsible behaviour in future with respect to the marketing of its business and directed the respondent to cease and desist from the use of complainant's registered trademark

Show cause notices were disposed of accordingly.

Complainant alleged that the respondent was disseminating false and misleading information by using virtually identical firm names, trademarks and by copying of distinctive items of product packing

Respondent, while placing reliance on S. 81 of Trade Marks Ordinance, 2001, contended that its violations were in the knowledge of complainant for over five years and the complainant had not taken any action, therefore, the principle of acquiescence applied to the case

Validity

Onus to discharge the burden of prior knowledge was upon the respondent, however, no evidence was presented to affirm the prior knowledge of infringement for over five years

Competition Commission had exclusive jurisdiction to take action and adjudicate on any matter provided in the Competition Act, 2010

Section 59 of Competition Act, 2010 provided that it had an overriding effect on any law for the time being in force, which inter alia, included Trade Marks Ordinance, 2001

Objection raised by respondent was not tenable and was rejected.

Complainant alleged that the respondent was disseminating false and misleading information by using virtually identical firm names, trademarks and by copying of distinctive items of product packing

Respondent contended that complaint had filed complaint owing to personal vendetta and business rivalry and that the allegations levelled in the complaint were intended to harm its business reputation

Validity

Exercising any legal right available to a person through quasi-judicial forum, such as the Competition Commission, did not amount to business rivalry

Purpose of S. 10, Competition Act, 2010 was to provide a remedy to an aggrieved person whose rights were infringed by another by resorting to deceptive marketing practices being an unfair mean of distorting competition

Competition Act, 2010 provided a mechanism, such as enquiry process under S. 37, to scrutinize the complaint and check its veracity

Competition Act, 2010 even further provided a due opportunity to the person against whom a complaint was filed to appear and produce his defence

Mere exercise of legal right, in the presence of an extensive process, did not amount to settling personal vendetta

Apart from submissions no other evidence was produced to prove mala fide of the complainant

Mala fide had to be proved through independent and cogent evidence, mere allegation was not sufficient

Complaint was held to be maintainable and filed with bona fide to protect the rights of the complainant in accordance with law.

Complainant alleged that the respondent was disseminating false and misleading information by using virtually identical firm names, trademarks and by copying of distinctive items of product packing

Validity

Pictorial comparison of the complainant's and respondent's products led to the obvious conclusion that there existed deceptively confusing similarities in the complainant's and respondent's trade dress

Ordinary consumer, specifically the illiterate, would not be able to distinguish between the products origin but for the brand names evident on the packing

Confusing similarities could mislead the consumer into believing that the source/origin of the respondent's products were in fact the complainant's

Respondent had failed to discharge the burden of providing any level of substantiation for the authenticity of its trade dress to the effect that it would not cause a misleading impression that respondent's products originate from the complainant and hence matched the quality of the complainant's products

Deceptive similarity in the respondent's trade dress and the complainant's trade dress had the potential to directly or indirectly affect the transactional decision of the consumers to buy the respondent's product on the misleading pretence as to the origin/place of production and quality of the product, therefore was materially deceptive

Competition Commission imposed penalty, reprimanded the respondent to ensure responsible behaviour in future with respect to the marketing of its business and directed the respondent to cease and desist from the use of complainant's registered trademark

Show cause notices were disposed of accordingly.

Complainant alleged that the respondent was disseminating false and misleading information by using virtually identical firm names, trademarks and by copying of distinctive items of product packing

Respondent, while relying on the principle of laches, contended that the complainant had kept silent for several years and had not objected to the infringement of its' rights when the respondent was commercializing its business activities

Validity

Neither S. 37(2) of Competition Act, 2010 nor its any other provision of the Act put any time limitation as to when to file a complaint for violation thereof

Application of Competition Act, 2010 was not only extendable to violations occurring in the present, but, to the violations occurred in the past

Any person violating the provisions of the Competition Act, 2010 could not be allowed to get away with his violation merely on the fact that the time had lapsed

Objection raised by respondent was not tenable and was rejected.

Respondents were cable manufacturers who were issued show cause notices for concealing information from consumers pertaining to existence of cash coupons inside their packaging

Validity

Non-disclosure of token in electric cable packs, was deceptive in that it created ambiguity and was found lacking in having reasonable basis as to price borne by consumer

Consumers were not informed about presence of token and its value and its placement in center of cable made its access to such information further difficult

Onus was on respondents to ensure that no deception resulted through their marketing practices

Such practice could have adverse effect of giving an unfair competitive edge to electric cable manufacturing offering higher token values without disclosures to consumers who bore price

Technicians would naturally have an incentive to purchase cable containing higher token values and other factors such as quality, durability might pale in comparison to such consideration

Practice of omission of material information with respect to tokens in electrical cable packs amounted to misleading consumers, hence was deceptive and in violation of S. 10 of Competition Act, 2010

Commission directed respondents that all advertisements, promotional material or instructional manuals pertaining to electric cable packs, whether electronic, printed or otherwise were to be modified to disclose presence and price/value of token on each pack for consumer

Commission further directed respondents to issue 4 advertisements/public notices to be published at least 15 days interval in at least two Urdu and English newspapers of national circulation making due disclosures to public regarding presence of price/value of token/coupon and category of products in which such tokens were found present

Commission also directed that public notices could be published by respondents on an individual or collective basis and that disclosure with respect to token on electric cable pack should be made with use of bright/conspicuous colors distinct from color of packaging of pack and should be printed in clear, bold and legible size

Complaint was disposed of accordingly.

Complainant sought admission in respondent institution on basis of its advertisement which complainant alleged to be misleading and falsified

Institution assailed show cause notice on grounds that it had committed unintentional mistake and that said mistake had been rectified

Validity

Institution had misled consumers by portraying itself as 2nd best institute in Pakistan and referred to its Business School as best institute whereas SAQS accreditation did not provide ranking of institutes

Said Institution was ranked 23rd by Higher Education Commission (HEC) in preceding year and according to HEC's Quality and Research Based Ranking of Business Education Institutes, name of the institution did not even make it to list

Calling its Business School as best ranked and best accredited school was false and misleading in terms of rankings both within Pakistan and South Asia

Each claim referred was misleading in terms of properties, characteristics and quality of educational services being provided and accordingly constituted violation of Ss. 10(1) & 10(2)(b) of Competition Act, 2010

Institution, in circumstances, had engaged in deceptive marketing practices prohibited under Ss. 10(2)(b) & 10(1)(a) read with 10(a) of Competition Act, 2010

Commitments and compliance filed by the institution denoted its willingness to conduct its business activities in accordance with provisions of Competition Act, 2010 and associated Rules and Regulations

Commission imposed fine penalty and directed the Institution to refrain from indulging in any form of deceptive marketing practices in future

Commission forewarned the Institution that repeat violations might attract stricter penalties as per law

Complaint was allowed accordingly.

Allegation was that respondent was engaged in dissemination of false and misleading claims/information, representing itself as a well-known hotel chain in Pakistan; whereas it had no authorization or licence to use the complainant's registered and well-known trademark; thereby respondent was deliberately engaged in deceptive marketing practices to the complainant and consumer's detriment in contravention of S.10 of Competition Act, 2010

Complainant had prayed to the Competition Commission to pass interim order under S.32 of the Competition Act, 2010 requiring the respondent to refrain from displaying the unauthorized/unlicensed use of complainant's registered mark and logo

Complainant had further alleged that despite issuance of show-cause notice, respondent continued to conduct business under the trade mark/brand of complainant resulting in transmission of misleading information to the consumers

Allegation was supported by the presence of evidence including pictures of the premises

Continued use of the complainant's, trademark by the respondent could cause serious or irreparable damage to the business and goodwill of the complainant

Commission could issue interim order under S.32 of the Competition Act, 2010, which was in public interest

Commission, was entrusted with the role of protecting the consumers from anti-competitive behaviour, which inter alia would include the deceptive marketing practices being prohibited under S.10 of the Competition Act, 2010

Commission was right in its stand to restrain the undertaking from resorting to unfair competitive practices

Respondent was directed by the Commission that till the issuance of the final order and conclusion of the proceedings under S.30 of the Competition Act, 2010, respondent would refrain from using the trademarks of the complainant; respondent, was further directed, not to claim any association or affiliation with the complainant during the course of its business activities, till conclusion of the proceedings

Respondent was also directed to file compliance report with reference to said directions within 7 days from the date of order, with the Registrar of the Commission, without fail.

Section 10 of Competition Act, 2010, would apply to all undertakings in Pakistan, regardless of their size and the way in which they were established and financed

Said provisions of law mandated the Commission to eliminate all causes of consumer deception or deceptive marketing practices

For deception to occur, there must be a representation, omission or practice which was likely to mislead the consumers

Said representation, omission or practice must be "material" one

Advertising statements, disclosures, disclaimers or point of sale representation, inter alia, were the points where consumer first contacted between a seller and buyers

Whether or not a consumer buys a product was immaterial; law could still be violated

Primary purpose of S.10 of the Competition Act, 2010, was to prohibit false and misleading advertisement practices

Question of dilution, ordinary meaning or secondary meanings of words or phrases used in a trademark/trade dress would fall outside the realm of S.10 of the Competition Act, 2010.

Complainant had submitted that it was enlisted with the Drug Regulatory Authority as the authorized importer and distributor of pharmaceutical products branded as "BIOFREEZE"

Complainant alleged that respondent was fraudulently using similar deceptive or confusingly similar mark "BYQFREEZ" in relation to similar pharmaceutical preparation in the form of spray and gel so as to pass off them as and for the products of the complainant, which tantamounted deceptive marketing practices in contravention of cl.(d) of subsection (2) of S.10 of Competition Act, 2010

Enquiry report concluded that respondent's unauthorized and dishonest adoption of deceptively and confusingly similar trademark appeared to be fraudulent use of trademark

Respondent appeared to be disseminating, false and misleading information, including its substantially lower pricing in the market to the detriment of consumers and competitors

Based on the said prima facie findings of the enquiry report, Commission initiated proceedings under S.30 of the Competition Act, 2010 against the respondents

Respondent's assertion could not be accepted that its product was branded as "BYQFREEZ HPQR" for the reasons, firstly, the product was widely known and sold under the name of 'Biofreeze' in the market, secondly, the respondent had produced no evidence to show that either physicians or patients/consumers could differentiate the respondent's products as "BYQFREEZ HPQR"; thirdly, the letters "HPQR", were written in much smaller and different than "BYQFREEZ"

Finally, the letters "HQPR", conveyed no useful or extra information to the consumers of ordinary intelligence

Complainant had proved beyond doubt that it was the registered proprietary and right-holder of the trademark "BIO FREEZE" as well as the trade class i.e. green and light blue labeling and packaging of the products in question

Complainant had exclusive right to use the trade mark including trade dress of "BIO FREEZE"

By adoption of an identical trademark i.e. "BYQFREEZ" and the trade dress, the overall get up, respondent had contravened clause (d) of subsection (2) of S.10 of the Competition Act, 2010

Commission, also found that it was highly likely that the consumers would be deceived/misled by false and misleading depictions of the respondent, which would constitute a contravention of S.10 of the Competition Act, 2010

Commission, further found that by resorting to said practices, the respondent had failed to fulfil its obligation to avoid unfair competition and became unjustly rich by encashing on the good-will or reputation of complainant

Commission observed that anyone who chose to use a trademark or a trade dress without the owner's permission, should be mindful not only of the potential liability for infringement under the trademark laws, but also of potential consequences, such as violation of S.10 of the Competition Act, 2010

Complainant had made out its case that he was registered and authorized right-holder of the trademark "BIO FREEZE" and its associated trade dress

Respondent, its proprietors, partners, directors, associates, agents, dealers, among others, were restrained from using the 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 the complainant' mark "BIO FREEZE" and its associated trade dress

Respondent having undertaking before the Bench of the Commission given that it would not repeat the contravention and comply with the provisions of S.10 of Competition Act, 2010, taking lenient view, penalty of Rs.2,500,000 (Rupees twenty five hundred thousand only) was imposed on respondent, under S. 38 of the Competition Act, 2010, which would be deposited with the Registrar of the Commission within sixty days from the date of the order.

Complainant had alleged that the appellant, in order to promote and market its new and enhanced performance products, started its marketing with new brands claiming that its use, both in new and old vehicles, would result in more milage, smooth running; that as a result of that advertising campaign, the complainant and other consumers started using that brand as a preferred choice; that the appellant abruptly and discreetly discontinued the use of those additives, giving a deceptive understanding to consumer and was liable to be proceeded for deceptive marketing practices

Matter was referred to the inquiry committee and on basis of inquiry report, Competition Commission after issuing show-cause notice, found appellant guilty of deceptive marketing practices and ordered to pay a fine of Rs.150 million, with direction to make appropriate changes in the branding insignia

Validity

Competition Commission could initiate proceedings on the basis of a complaint to be made by an undertaking or registered association of consumers; whereas the complainant, in the present case, was neither an undertaking nor a registered association of consumers

Complainant, in circumstances, was not competent to lodge complaint against the appellant

Except news report, there was no other evidence to support the complaint

Competition Commission, in circumstances, had violated the mandatory provisions of law by initiating proceedings against the appellant on basis of wrong, illegal and no evidence

Important and material points agitated by the appellants were neither inquired into nor any opinion was expressed thereon by the Inquiry committee

Inquiry report was the outcome of one-sided aspect of the case based on mere allegations in complaint without any evidence as well as, without covering or answering the pleas taken by the appellant

Complainant had neither appeared before Competition Commission to depose an affidavit in support of the complaint nor had recorded the statement of any other consumer or undertakings in support of the complaint

Points involved in the case were disputed questions of facts, which could not be resolved without recording pro and contra evidence

No evidence at all having been recorded by the Commission, judgment rendered by Commission was based on no evidence

Nothing on record existed that on account of discontinuance of additives any harm was inflicted to consumers or other competitors

No market data had been collected to show that on account of discontinuance of additives, the appellant had obtained monetary gains through increase of market share or profit or competition had decreased

Complaint was not only wrong, illegal and unjustified, but also devoid of merits which was dismissed, in circumstances.

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.

Section 10(2)(b) of the Competition Act, 2010, prohibited distribution of false or misleading information to consumers, including the dissimilation of information that lacked a reasonable basis

In the present case, advertisement with regard to the claim "eliminates 99.9% bacteria", appellant contended that test results as carried out in the laboratory proved his claim that its product had capability to eliminate 99.9% bacteria; however, the Commission's findings were that such claim was not based on the ground realities, therefore, amounted to a violation of S.10(2)(b) of the Competition Act, 2010

Claim of the appellant could be true when there was concentrated usage without dilution in a laboratory environment

Ordinary consumer, would not be aware of the disclaimer on the backside of the packaging at first glance of the product

Such claim of appellant had rightly been declared as distribution of false information

Another claim of the appellant was that "it kills 99.9% bacteria from surfaces leaving floors and household surfaces, clean, shining and germ free", also did not sound convincing

Disclaimer in that regard did not appear in the same font, size as the claim itself; even though it was in close proximity to it

Claim of the appellant could not be considered reliable, in circumstances

Advertising claim also would amount to distribution of false information, in circumstances

Appellant had also claimed in the said advertisement that its product had ability to maintain 24 hours long lasting freshness

Said claim had not been limited or qualified through a disclaimer or otherwise

Appellant had also failed to provide recognizable substantiation or a reasonable basis as to character, properties and suitability for the use of its product

Appellant, in circumstances, was liable to be penalized for a single offence of distributing false information through advertisement

Penalty of Rs.1 million in that behalf was imposed by the Appellate Tribunal against contravention of S.10(1) read with S.10(2)(b) of the Competition Act, 2010 instead of four penalties of Rs.1 million for each false claim.

Distribution of false or misleading information that was capable of harming the business interests of another undertaking

Proof

For proving conduct under S.10(2)(a) of the Competition Act, 2010, it was not necessary to show actual harm to the competitors; but it was sufficient to show the existence of deceptive marketing practice that had the potential to harm the business interest of the competitors

If there existed a contravention of S.10(2)(b) & (c) of the Competition Act, 2010, concurrent violation of S.10(2)(a) of the Act, was also made out

Appellant was also culpable under S.10(2)(a) of the Competition Act, 2010

Appellate Tribunal, taking it a single violation, imposed penalty of Rs.1 million for the contravention of S.10(1) read with S.10(2)(a) of the Act

Impugned order passed by Competition Commission was upheld with the modification that appellant was liable to pay a sum of Rs.3 million in total for each violation of Ss.10(2)(a), 10(2)(b) & 10(2)(c).

Appellant against whom complaint of false or misleading comparison of goods in the process of advertising was alleged, claimed that appellant's "Trade Letter" referred in the impugned order was an internal confidential memo only, meant for viewing and training of its employees staff being distributors

Admission on the part of the appellant that its Trade Letter was circulated among persons, responsible for marketing "the product", was sufficient to conclude that violation had in fact been made out due to the inclusion of deceptive comparison therein

Even if the said "Trade Letter" was meant solely for viewing and consumption of distributors, the deceptive comparison had created an impression in their minds as to the harmful effect of another's product, which impression was eventually passed on to the consumers by the sale force marketing appellant's product

Such an activity would amount to deceptive practices within the meaning and scope of S.10(1) in terms of S.10(2)(c) of Competition Act, 2010.

Counsel for Commission had placed sufficient evidence on the record showing that the comments had been invited from the appellant on the complaint filed against it and appellant submitted the comments along with necessary material to explain its position

Appellant, during the proceedings, was contacted by the Inquiry Committee for its participation in the proceedings and some representatives of the appellant, held meetings with inquiry Committee to put up the position of the appellant for consideration of the Committee

Said position had clearly indicated that sufficient opportunity had been provided by the Inquiry Committee to the appellant to present its position before the Committee, so that final report could be prepared taking into consideration the position of the appellant

No justification was available with the appellant to contend that it had not been provided an opportunity to participate in the inquiry proceedings.

Appellant was alleged to be involved in deceptive marketing practices as prohibited under S. 10 of Competition Act, 2010

Competition Commission initiated proceedings against the appellant and vide impugned order held the appellant as having acted in violation of S. 10 of the Competition Act, 2010 and imposed penalty of Rs.10 million

Appellant while challenging the constitution of the Competition Commission had stated that in terms of S.14 of the Competition Act, 2010, Commission would consist of not less than five and not more than seven Members and quorum of meeting was to be three members; whereas while passing the impugned order Commission was consisting of two Members therefore, impugned order was nullity in the eyes of law

Validity

Appellant, could not place any proof before the Appellate Tribunal with regard to the said deficiency of members

Counsel for Competition Commission, had placed on record the copies of the notifications about appointment of the Chairman as well as members of the Commission along with other material, which had clearly shown that during the relevant period the positions were occupied by the incumbent; there was no problem of quorum at all

Quorum of three members was required for the meetings of the Commission, and S.14(7) of the Competition Act, 2010 had provided that no act or proceedings of the Commission would be invalid by reason of absence of a member or existence of any vacancy among its members or defect in constitution thereof

Even to hear an appeal against an order made by any member or authorized Officer of the Commission, S.41(2) of Competition Act, 2010, had provided that the Commission would constitute Appellate Bench, comprising not less than two members to hear such appeal

Two member Bench under the Competition Act, 2010, in circumstances, was competent to hear any matter or appeal for order and such order would be considered a valid order, passed by the competent forum in the eyes of law

Order accordingly.

Complainant, active in the business of manufacturing cotton fabrics and textile products under the trademark "Pasha Fabrics", alleged that respondents, 8 in numbers, were fraudulently using the complainant's registered trademark and copyright trade dress with similar language, layout, getup, colour/colour combination, size, shape and graphics in the sale and promotion of their products; which was misleading the consumers thus violating S. 10(2)(b)(d) of Competition Act, 2010

Enquiry report had concluded that respondents were fraudulently using the complainant's trademark and labelling and packing on similar products

Respondents were engaged in the dissemination of false and misleading information to the consumers' detriment and causing harm to the business of the complainant

Based on the prima facie findings of the enquiry report and the recommendations, the Competition Commission decided to initiate proceedings under S.30 of the Competition Act, 2010

All respondents, except one were found to have contravened the provisions of S.10 of the Competition Act, 2010

Neither the complaint nor the enquiry report had provided any evidence to proceed adversely against said one respondent in the case

Show-cause notice issued to said respondent was disposed of

Four respondents appeared before the Commission and had committed not to repeat the contravention and comply with the provisions of S.10 of the Competition Act, 2010 as well as any direction given by the Commission under the provisions of Regln.37 of Competition Commission (General Enforcement) Regulations, 2007, read with S.38 of the Competition Act, 2010

Commission taking a lenient view imposed penalty of Rs.500,000 each on said respondents

Three remaining respondent having failed to appear before the Commission, were proceeded against under S.30(2)(b) of the Competition Act, 2010 and penalty of Rs.750,000 each was imposed on them

Respondents were directed to refrain from indulging in any form of deceptive marketing practices in future and were forewarned that repeated violation could attract stricter penalties as per the law; non-compliance with the order could result into further liability under subsection (3) of S. 38 of the Competition Act, 2010 to pay an additional penalty amounting to Rs.25,000 per day from the date of the order.

Complainant company, engaged in the business of production, marketing and sale of a large variety of food products, contended that it had been using the word "National" as a trademark, house mark, company name and a logo, since 1970

Allegation against respondent was of preparing, packing, marketing and selling imitated food products using a confusingly similar logo "Shainal" and packaging in terms of colour scheme, design and over all get up to that of the complainant's product

Enquiry report revealed that conduct of respondent, prima facie, amounted to passing off its products as that of the complainant's through fraudulent use of complainant's logo, packing, colour scheme and get up of products in violation of S.10(1)(2)(d) of Competition Act, 2010 thus, had the potential to inflict harm upon the good-will and business interest of the complainant and cause confusion among customers through dissemination of fake and misleading information

Deceptive marketing practices had a direct impact on the public-at-large

According to S.10(2)(d) of the Competition Act, 2010, fraudulent use of another's trademark, firm name or product labelling or packing, would constitute a deceptive marketing practice

Respondent had in fact resorted to copying and contravened the provisions of S.10(1)(2)(d) of the Competition Act, 2010

Respondent's trade dress and overall impression of labelling and packaging of the product was deceptively similar to that of the complainant's trademark

Ordinary consumer who would purchase the respondent's product, was likely to be deceived by its packaging, logo and get up

Deceptive similarity in the respondent's trade dress and the complainant, trade dress had the potential to directly or indirectly affect the transactional decision of the consumer to buy the respondent's product, on the misleading pretence as to origin/place of production and quality of the product and hence materially deceptive

Competition Commission was of the view that such conduct of the respondent had resulted in violation of S.10(1)(2)(b) of the Competition Act, 2010

Respondent's practice being inherently deceptive, was in fact capable of harming the business interest of the complainant

Penalty of Rs.5,000,000 (Rupees Five Million) was imposed on the respondent and he was reprimanded to ensure reasonable behaviour in future with respect to marketing their business

Respondent would be made further liable under S.38(3) of the Competition Act, 2010, in case of violation of the present order.

Complainant had alleged that he ordered a wrist watch from respondent's website, which when delivered, was in a poor condition and was very different as compared to the one shown in the product description on the website

Complainant, further alleged that upon noticing the difference between the ordered watch and delivered one, he raised a dispute with the respondent and the seller and apprised them of the difference between what was ordered and what was delivered, respondent advised the complainant to send the disputed product and it was said that dispute would be resolved within 10 days, but when the complainant contacted representative of the seller it was stated that their address had changed and no new address was given and the seller ceased responding to the complainant

Complainant, alleged that respondent was involved in the distribution of false and misleading information

Competent authority initiated enquiry, which was concluded vide enquiry report

Based upon the conclusion and recommendation of the enquiry report, competent authority approved the initiation of proceedings under S.30 of the Competition Act, 2010

Competition Commission, was empowered to initiate enquiry only on three occasions i.e. (i) on its own motion or (ii) upon a reference filed by the Federal Government, or (iii) on a complaint filed by an undertaking or a registered association of consumers

In the present case the proceedings were initiated on complaint of individual

Complainant had approached the Commission as a "consumer" and not as an "undertaking"

Commission, was not empowered under S.37(2) of the Competition Act, 2010 to proceed with an enquiry on the complaint of the consumer, rather the legislature in all its wisdom had categorically outlined that the complaint was to be filed, either by the 'undertaking' or 'registered association of consumers'

Nowhere in the definition of 'undertaking' the word 'consumer' was used

Consumer protection laws were framed to protect the interests of the consumers

Competition Act, 2010 also provided for protection of consumers

Since, a consumer, did not fall within the purview of the definition of 'undertaking' initiation of the enquiry under S.37(2) of the Competition Act, 2010 on the basis of the complaint in question, was in fact violative of the express provisions of the law

Enquiry in the present case, was not in line with subsection (2) of S.37 of the Competition Act, 2010 and accordingly, no proceedings under S.30 of the Act, could be initiated

Both the enquiry report and show-cause notice, were set aside

Complaint was remanded to the Registrar of the Commission who would place the same before the Competition Commission

Present order would not preclude the Commission from authorizing the conduct of de novo enquiry in the matter in accordance with law.

Respondents/ undertakings, were engaged in the business of manufacturing, distributing and selling dry and acid-lead batteries

Complainant, had alleged that respondents did not disclose certain information with regard to capacity and utilization of their products and that respondents were printing randomly generated serial numbers of the battery body, packing and warranty cards, which gave impression that those serial numbers represented the battery capacity

Enquiry Committee appointed by the Competition Commission concluded that undertakings were engaged in making practices by omitting information, such as capacity of battery

Said report supported allegations by the complainant

Commission in proceedings under S. 30 of the Competition Act, 2010 considered the findings of enquiry report, and found that respondents, except one undertaking, had contravened the provisions of S.10(2)(e) of Competition Act, 2010 by omitting to disclose material information related to their products' capacity and characteristics to consumer; that undertaking, had also contravened S.10(2)(c) of the Competition Act, 2010 by engaging in misleading advertisements through various media, distorting the competitive fabric of the market

Respondents/undertakings, during course of proceedings before the Commission had admitted that information pertaining to capacity and usage of their product, was vital for consumers and submitted to withdraw and modify their current advertising and marketing practices

Respondents having undertaken to stop the subject advertisement and marketing practices and had expressed willingness to comply with the provisions of S.10 of the Competition Act, 2010, Commission took lenient view and minimum penalty of Rs. One million on each respondent, was imposed

Respondents, were directed to file compliance report with Registrar of the Commission and also to deposit the amount of penalty within 60 days of the passing of present order.

Allegation of deceptive marketing practices by virtue of advertising and claiming that food products were "100% non-processed" or "Pakistan's first non-processed frozen food"; which was false, misleading, unsubstantiated

Competition Commission initiated enquiry and based on the finding and recommendations of the enquiry report and in the public interest, the Commission decided to initiate proceedings under S.30 of the Competition Act, 2010 and issued show-cause notice to the respondent

All representations; whether intentional or unintentional, which were not easily noticeable or easily understandable to target consumers and could influence their purchasing decision, were materially false and adversely affected competition, were actionable under S.10 of the Competition Act, 2010

Competition Commission, was of the opinion that the respondent's product, could or could not contain entirely synthetic and unnaturally processed ingredients; its advertising claims "100% Non-Processed" and "Pakistan's First Non-Processed Meat", essentially fell within the category of processed meat or meat based products

Respondent's advertising claim amounted to the dissemination of false and misleading information in substance, hence deceptive and in contravention of S.10 of the Competition Act, 2010

Respondent had propagated that processed meat or meat-based products would cause cancer and since its products were 100% non-processed, it had either implicitly or explicitly, claimed that its products did not cause cancer and hence ensuring or enhancing health and safety of its consumers

Competition Commission, noticed that the respondent's advertised claims, pertained to risks associated with (processed) meat and cancer and its targeted audience or consumers being children and parents, respondent ought to possess reasonable basis or prior substantiation in terms of competent and reliable scientific evidence

Respondent, neither had any qualification or qualified staff to conduct such research, nor it had demonstrated that the procedures applied by it were generally accepted in that profession in order to yield accurate results in respect of its product

Respondent's advertisement material lacked a reasonable basis or prior substantiation in terms of competent and reliable scientific evidence

Respondent's representation for the advertisement of its products, was unsubstantiated and deceptive being in contravention of S.10 of the Competition Act, 2010

Respondent was obliged to prove its claims or provide a reasonable basis in terms of competent and reliable evidence, which it had failed to provide

Respondent rendered an unconditional apology and made commitment to discontinue the impugned advertised claims

Respondent had made changes on its product packaging material, including withdrawal of its marketing campaign to the satisfaction of the Commission

Respondent, having been engaged in deceptive marketing practices prohibited under S.10 of the Competition Act, 2010, Competition Commission had imposed penalty of Rs.1,000,000 on the respondent, with direction to refrain from indulging in any form of deceptive marketing practices in future and was forewarned that repetition of violation could attract stricter penalties as per law.

Allegation was that respondents had copied complainant's distinct and registered trademark "Taizgaam" in a way that "winda" product marketed by the complainant and the respondents was undistinguishable; that respondents had used deceptively similar product labelling and packing to that of the complainant; thereby creating an impression in the minds of the consumers that their products were actually those of the complainant's; that such conduct of the respondents was violation of S.10 of the Competition Act, 2010

Enquiry was conducted in the matter and Competition Commission initiated proceedings under S.30 of the Competition Act, 2010 against the respondents by issuing show-cause notice

Competition Commission on the basis of inquiry report and pictorial comparison of tags and bags of the complainant's product with that of the respondent's, found that there was an identical usage or exact replica of the trademark and the trade dress of the complainant by the respondents, was materially deceptive and it had a direct bearing on the transactional decision of the ordinary consumer causing undeniable confusion in their minds as to the sources of the product in question

Conduct of said respondent, amounted to unauthorized and fraudulent use of the complainant's trademark packaging and product labelling within the meaning and scope of S.10(2)(d) of the Competition Act, 2010

Other respondent was involved in the practice of copying the complainant's trademark as well as trade dress

Said respondent had introduced a minor differentiation in its brand name, which was clear violation of S.10(2)(d) of the Competition Act, 2010

Yet another respondent was using the exact trademark and product labelling as that of the complainant on the product tag

Similarly all other respondents had also acted in violation of S.10 of the Competition Act, 2010 as there conduct was materially deceptive in terms of unauthorized use of the complainant's trademark as well as trade dress

Respondents had printed trademark registration numbers on their respective packing giving impression to the consumers that their brand name was trademark protected and authentic

Respondents had failed to discharge the burden of providing even the minimum level of substantiation for their claim as to the trademark registration numbers being valid and authentic

Conduct of the respondents, was intended to take advantage of the good-will attached to complainant's trademark and trade dress by misleading the consumer through the use of confusingly similar logos, colour scheme, design as well as language and unauthenticated trademark registration number appearing on the packing

Such conduct was materially deceptive in fact and in law

Clear contravention of S.10 of the Competition Act, 2010 stood established against all the respondents

In the light of the willingness of the majority of the respondents to act in accordance with the directions of the Commission on the one hand and in the interest of justice to deter such practice on the other, respondents were held liable to pay a penalty and same was imposed accordingly; with direction to all the respondents to ensure responsible behaviour in future with respect to the marketing of their business

Respondents were further directed to cease unauthorized use of the complainant's registered trademark and file individual compliance reports and deposit the penalty with the Registrar of the Commission.

Allegation was that Developers marketing claim as contained in its advertisement for its housing project amounted to deceptive marketing practices through the distribution of false or misleading information to consumers and/or capable of harming the business interests of competitors, within the meaning and scope of S.10 of Competition Act, 2010

Developer's advertisement about location used the word 'Islamabad' suggestion and giving the consumer the impression that the said housing scheme was located in Islamabad and that it held some form of approval from Capital Development Authority

Project, on the contrary, was situated in District Attock

Developers had been approved only by Tehsil Municipal Authority

Developers had contended that project was located in front of New Islamabad International Airport and was linked to the Kashmir Highway, therefore housing scheme was also located within the domain of Islamabad International Airport

Developers had attempted to create an impression that since the airport was called the New Islamabad Airport

Usage of "Islamabad" with Housing Scheme also suggested that Developers had some form of permission from C.D.A., which certainly was not the case

Use of "Islamabad" in conjunction with Housing Scheme amounted to dissemination of false and misleading information to consumers in terms of S.10 of the Competition Act, 2010

Advertisement in question showed approvals from various government bodies

Developers had given the 'logos' of government bodies erroneously only on the pamphlets

Said practice was false and misleading as no approvals and certifications existed from those public departments

Commission, found that Developers by using various logos of public-sector departments and organizations on various marketing media for the project disseminated false and misleading information to consumers

False and misleading information disseminated by an undertaking to consumers would be capable of harming the business interest of competitors

Commission held that distribution of false and misleading information to consumers was in fact capable of harming the business interests of the competitors

Developers gave an undertaking that it had already removed various unauthorized affiliations, display of logos and websites from brochures and they were willing to remove any other unauthorized logos as per the directions of the Commission and they were not marketing their housing scheme as at Islamabad

Developers committed that in future they would not market their housing society as at Islamabad

Commission held that the undertaking, submitted by the Developers was insufficient and that contravention of S.10(1) of the Competition Act, 2010 stood established

Commission accepted the undertakings of the Developers, imposed penalty and directed the Developers to ensure that it would not use the word 'Islamabad' as part of the name of its housing scheme.

Complainant alleged that while marketing the "Park View Villas Scheme", the Developers had resorted to deceptive marketing practices in violation of S.10 of the Competition Act, 2010

Commission initiated enquiry by appointing Enquiry Committee to investigate the matters of alleged violations

Developers having failed to appear despite various opportunities, Commission decided to proceed ex parte

Contentions of Developers were that the Commission had no jurisdiction over the real estate matters and Developers; that all issues pertaining to the real estate sector, especially in Lahore, were to be adjudicated by Lahore Development Authority under Lahore Development Authority Act, 1975

Validity

Objection with regard to jurisdiction of Commission was merely argumentative and based on non-reading, misreading or misinterpretation of the Act and the principles applicable in the matter

Paramount object of Lahore Development Authority Act, 1975 and associated Rules, Regulations and policies administered by the Authority was to ensure sustainable development of the city

Section 46 of Lahore Development Authority Act, 1975 gave its provisions overriding effect

Federal Government had not issued any notification to exempt the real estate sector

Commission had rightly taken cognizance of the marketing practices of the Developers

Non obstante provisions contained in the Lahore Development Authority Act, 1975, made it clear that the Commission was the only forum to probe and initiate enquiries, conduct proceedings and pass orders in case of infringement of provisions of the Act, which inter alia included the deceptive marketing practices

Commission had observed that Developers were engaged in the sale, purchase and development of residential and commercial properties

All commercial and economic activities of the Developers were subject to the provisions of the Competition Act, 2010 and Commission was empowered to take action against any violation thereof

Contentions of the Developers was that Enquiry Committee constituted by the Commission, had no power to investigate into the anticompetitive practice in the real estate sector

Contentions of the Developers, were result of either non-reading and/or gross misinterpretation of relevant law on the subject

Under the provisions of S.28 of the Lahore Development Authority Act, 1975, Commission could conduct enquiries into the affairs of any undertaking and could initiate proceedings in accordance with procedure of the Lahore Development Authority Act, 1975 and take all other actions as could be necessary for carrying out the purpose of the said Act

Commission could delegate any of its powers and functions to its officers and Members

Enquiry Officers, in circumstances, had all the powers to investigate the alleged contraventions

Show-cause notice was issued on the basis of enquiry report

No evidence was available to show that Enquiry Committee had acted in any arbitrary manner

Enquiry Committee had fulfilled the requirements of principles of natural justice

Complainant, who was engaged in the business of developing real estate, assisting individuals and institutional clients, fell within the purview of "undertaking" to file complaint for contravention of provisions of S.37(2) of the Competition Act, 2010

Commission noticed no element of political victimization or harassment affecting the outcome of the enquiry and Developers had adduced no cogent evidence to substantiate the same

Proposed "Park View Villas Scheme" was an unapproved housing scheme and Lahore Development Authority's refusal to grant "No Objection Certificate" to the Developers was based on cogent reason

Advertising campaign launched by the Developers was not only false, but also misleading in character because it had the potential to give an overall impression either that; said scheme was an independently approved housing scheme or same was part/extension of "River Edge Housing Scheme"

Advertised claim of the Developers was false in the sense that it was contrary to the truth or fact, not in accordance with reality or actuality

Developers' representations, omission or practices for purposes of advertisement and promotion of scheme in question, were most likely to mislead actual or potential consumers under the circumstances

Developers had resorted to deceptive marketing practices in violation of S.10 of the Competition Act, 2010

Advertising and marketing campaign, contained both false and misleading claims, which lacked reasonable basis specifically in terms of "character" and "suitability" for use of the scheme

Penalty of Rs.10,000,000 was imposed on the Developers, with direction to inform public-at-large through appropriate clarification in Urdu and two English dailies that 'Park View Villas', was not a housing scheme approved by Lahore Development Authority and not an extention of 'River Edge Housing Scheme' and to refrain from indulging in any form of deceptive practices in future.