SRI LANKA
SRI LANKA
➢ A mark, whether registered or not ; ➢ A trade name; ➢ A business identifier other than an mark or a trade name; and/or ➢ Te appearance of a product.”
Te plaintiff further pleaded that the defendants, in importing the infringing product into Sri Lanka without consent, would:
• Cause, or be likely to cause, confusion with respect to the plaintiff ’s trademarks;
• Damage and/or dilute the goodwill and reputation attached to the plaintiff’s trademarks; and
• Mislead the public with respect to the quality and/or source of the defendant’s product.
Te complaint stated that in the circumstances the plaintiff is entitled, in terms of section 170 of the IP Act, to obtain an injunction restraining the defendants from continuing such infringement, and claimed damages amounting to a sum of Rs100 million ($875,000). Te Commercial High Court of Colombo accepted that the plaintiff’s trademarks were infringed and there was a clear case of unfair competition. It issued enjoining orders against the defendants.
Tis matter was settled aſter the defendants gave an undertaking in court that the plaintiff is the registered owner of the trademark, device mark and the trade dress, and has exclusive rights to use them. Te defendants accordingly consented to the declaratory relief demanded in the complaint and the case was concluded.
Garment seizure
Globalisation has brought the positives of increased commerce and opened up Sri Lanka for direct foreign investment, which is excellent for the country’s economy, but due to Sri Lanka’s reputation of being a manufacturing base for garments it has also opened up avenues for the production of counterfeit goods for domestic sale and export. Te sale of counterfeit products causes confusion as an unwary consumer may be misled.
On a complaint made by a leading specialty retailer of lingerie and beauty products, a team of officers from the CID raided a large stock of counterfeit garments. At the time of the raid the counterfeiters were arranging the fake garments for export. Te complainant’s brand
222 World Intellectual Property Review e-Digest 2012
protection team confirmed that the garments seized at the raid were counterfeit. Te material and the thread used by the counterfeiters were of poor quality and way below standard.
Te accused in this matter pleaded guilty to the charges and the magistrate imposed a fine of Rs10,000 ($90) to the state and awarded compensation of Rs100,000 ($880) to the complainant. Tere has been an increase in the compensation awarded by magistrates in the recent past, in comparison with previous years. Tis is a significant step in sending a strong message to would-be counterfeiters and encouraging IP rights holders to come forward and file actions to protect their IP rights.
It is evident that against the backdrop of increasing awareness of the value of IP rights, the enforcement mechanism established in Sri Lanka is becoming more adaptable and amenable to changes in the global IP arena.
Sudath Perera is the founder and managing partner of Sudath Perera Associates. He can be contacted at:
sudath@sudathpereraassociates.com
Shanika Gunawardena is a senior associate at Sudath Perera Associates. She can be contacted at:
shanika@sudathpereraassociates.com
Sudath Perera was named a “leading individual” in Sri Lankan IP law by the Legal 500. Perera specialises in administrative and IP law, with a focus on brand protection and anti-counterfeiting work. He is a member of the Bar Association of Sri Lanka, the International Bar Association, the International Trademark Association, the Asian Patent Attorneys Association, the Inter-Pacific Bar Association and the International AntiCounterfeiting Coalition.
Shanika Gunawardena specialises in brand protection and anti-counterfeiting work. Her practice includes advising both local and foreign clients on IP rights protection and strategies, civil and criminal litigation, money recovery and family law. She holds a Bachelor of Arts degree and is a member of the Bar Association of Sri Lanka.
www.worldipreview.com
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