According to an order issued by the CCP adjudication authorities headed by Chairperson CCP Ms Vadiyya Khalil, the order shall dispose of the proceedings initiated pursuant to the show cause notice No 1/2015 dated 14 May 2015 (SCN). The SCN was issued pursuant to the complaint filed with CCP by Chartered Financial Analyst (CFA) institute (Complainant) for prima facie violations of Section 10 of the Competition Act 2010 (Act) by M/s Society of Accounting Education (Respondent).
The CFA institute is a non-stock corporation organised under the laws of Virginia, United States of America. The company is engaged in imparting education and training to students and professionals in the field of investment and financial analysis and has gradually extended its operations around the world, including Pakistan. The Respondent is a society registered under the Societies Registration Act, 1860 of Pakistan and is engaged in the provision of educational services in the field of finance and accounting. Both are undertaking in terms of Section 2 (1) (q) of the Act.
The CFA institute has alleged that the M/s Society of Accounting Education (Respondent) has been using the Complainant's registered Trademark 'CFA' to deceive public and promote its business. It further alleged that the Respondent had resorted to the dissemination of false or misleading information, which is capable of harming the business interest of the Complainant. Moreover, it alleged that the Respondent had been distributing false or misleading information by unauthorised use of imitated marks as CFA, ACFA, FCFA, DCFA, as if the Respondent was authorised/permitted by the Complainant to use the mark 'CFA' by the Complainant as such.
An enquiry in terms of Section 37 (2) of the Act was initiated in the matter, which was concluded vide an enquiry report dated 04 March 2015.
After considering the Enquiry Report, the Commission issued the show cause notice (SCN) to the Respondent.
In order to protect the Complainant's trade/service mark, 'CFA' the Complainant has registered and/or applied for its registration of its trademark in nearly all the major jurisdictions. In Pakistan, the trade/service mark ie, Chartered Financial Analyst and its abbreviation CFA was registered with the Trade Mark Registry.
The complainant came to know that the Respondent's unauthorised use of CFA mark in connection with its program for investment and finance professionals. The Respondent used the word Chartered Financial Accountants and its abbreviation CFA in its advertisement. According to the Respondent's website, 'member of the society are to describe themselves as Certified Financial Accountants and use the designation CFA, ACFA (for Associates) and FCFA (for fellows) for their services and programs. The Respondent has also established Linked in and Face book profiles, whereby they promote their program.
The CCP order said that the claims and the evidence available on the record clearly establish that the M/s Society of Accounting Education (Respondent)
used the registered trademark of the Complainant ie, CFA in its marketing and other materials. The images retrieved from the Respondent's website, the advertisements in newspapers, the evidence or record substantiate Complainant's assertions.
In order to constitute a violation of Section 10, the marketing and advertising must have the ability to deceive. It is clear that the use of the trade/service mark by the Respondent has the ability to deceive the ordinary consumer (such as students) by giving them false or misleading impression that the Respondent is affiliated with, or has expressly been authorised by the Complainant, to carry out its programs in Pakistan or that it is otherwise offering a similar qualification as the Complainant, CCP order maintained.
On the one hand, such usage of the trade/service mark has the ability to deceive the students who may well believe that they are undertaking the CFA program and qualification which is offered by the Complainant. Apart from misleading the consumer, these practices have the ability to harm the business interests of the Complainant as well.
In view of this, the usage of the Complaints trademark 'CFA' amounts to the dissemination of false and misleading information by the Respondent capable of harming the business interest of the Complainant in violation of Section 10(1) read with Section 10(2)(a) of the Act. At the same time, as discussed above, the usage of the trademark also amounts to the dissemination of false and misleading information to consumers in violation of Section 10(1) read with Section 1O(2)(b) of the Act.
Furthermore, in relation to Section 10(2)(d) of the Act, the principle, the Commission has established the fraudulent use is not the "subjective intent" but the "objective manifestation" of that intent, CCP order said.
In view of the foregoing, Respondent's conduct and the evidence on record the Respondent would most certainly have known that its unauthorised use of the Complainant's trademark 'CFA' would deceive consumers and that it would gain a Business advantage. With regard to the unauthorised use of the 'CFA' trademark, the Commission is of the considered opinion that the Respondent's representation are Material and hence constitute a violation of Section 10(1) read with Section 10(2)(d) Of the Act.
With respect the imitated trademarks FCFA, DCFA, ACFA and the new trademark CFAc are distinguishable from the registered trademark of the Complainant ie, CFA, it is pertinent to mention that the Commission has the mandate to protect the consumer from anti-competitive behaviour in the market.
An ordinary consumer ie, the students of accounting and finance who would join the world renowned institute of complainant ie, CFA, would likely be misled by these words and connotations and is highly likely to consider the Respondents institute as authorised by the Complainant. This is based on fact and the Commission's earlier decisions quoted above that the ordinary consumer normally perceives a mark as a whole and does not proceed to analyse it minutely.
In view of this, the Commission holds that by using the above-noted variation of the 'CFA' the Respondent has violated Section 10(1) read with Section 10(2)(d) of the Act.
The Commission hereby directs the Respondent to immediately cease the use of the mark 'CFA' in any form whatsoever.
The Respondent is further directed to cease the use of terms 'DCFA, ACFA, FCFA, and CFAc, or any other similar acronyms and terms, in any form and to amend its promotional and marketing material accordingly.
Furthermore, the Respondent is directed to amend its Article and Memorandum of Association to remove any reference to the terms.
For each of the four violations stated above, a penalty of Rs 0.5 million is imposed on the Respondent for a total of Rs 2 million.
The penalties and direction have been imposed after taking into account the seriousness and length of the violations and its impact on the consumers and the interests of the competing undertakings, and are proportionate to the contraventions of Section 10 of the Act and necessary to restore the fair competition in the relevant market, CCP added.
Copyright Business Recorder, 2017