No
good case exists for the inequality of real and intellectual property, because
no good case can exist for treating with special disfavour the work of the
spirit and the mind.
–
Larry Downes and Mark Helprin, 2009.
INTELLECTUAL
PROPERTY refers to creations of the mind: inventions; literary and artistic
works; and symbols, names and images used in commerce. Intellectual property is
divided into two categories: Industrial Property includes patents for
inventions, trademarks, industrial designs and geographical indications. Copyright
covers literary works (such as novels, poems and plays), films, music, artistic
works (e.g., drawings, paintings, photographs and sculptures) and architectural
design. Rights related to copyright include those of performing artists in
their performances, producers of phonograms in their recordings, and broadcasters
in their radio and television programs. [1] Having any of these
would give a person intellectual property rights that are analogous with any
other rights the same may possess.
Not
all people are familiar with intellectual properties, and they find it hard to
differentiate each and every one from the other. But, this does not prevent the
owners of such properties from appreciating the value of their properties.
Thus, it does not bar the owner from protecting such properties from illegal
use. For this reason, Intellectual Property Offices are established throughout the
world with the help of the World Intellectual Property Organization (WIPO).
With the help of this Organization, people all over the world would be
encouraged to think of fresh ideas and get their creative juices flowing.
The Intellectual Property Code of
the Philippines is the Act that holds all the rules regarding Intellectual
Property Law in the Philippines. Through the years, since its enactment, many
provisions were amended because other countries, mainly the United States,
placed the Philippines under their Priority Watch List. By changing some of the
provisions of the Intellectual Property Code of the Philippines, the country
went from Priority Watch List to the Ordinary Watch List with regard to its
Intellectual Property Laws.
Many provisions of the IP Code reproduce
those of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPs). It was introduced as a direct consequence of high levels of criticism from
the United States – the Philippines’ main trading partner – with regard to the
perceived laxity of the Philippines’ IP rights enforcement system. One
important change was the institution of a provision treating ‘preparatory steps’
such as the reproduction of a registered mark on labels, prints, signs and
advertisements as infringing acts. This enables mark owners to succeed in infringement
actions even where the infringing products have not actually been sold. A
provision in the copyright chapter allows an author to prove copyright ownership
by mere affidavit evidence, which is treated as prima facie evidence of the
facts stated, shifting the burden of proof onto the defendant. [2] It
was evident that our Laws was still not spot-on, as a lot of questions with
regard to Court rulings was still dubious to some countries.
Emerald
Garment Manufacturing Corporation vs. Hon. Court of Appeals Case Summary
On
18 September 1981, private respondent H.D. Lee Co., Inc. filed with the Bureau
of Patents, Trademarks & Technology Transfer (BPTTT) a Petition for
Cancellation of Registration No. SR 5054 for the trademark "STYLISTIC MR.
LEE" used on skirts, jeans, blouses, socks, briefs, jackets, jogging
suits, dresses, shorts, shirts and lingerie under Class 25, issued on 27
October 1980 in the name of petitioner Emerald Garment Manufacturing Corporation.
Private
respondent averred that petitioner's trademark "so closely resembled its
own trademark, 'LEE' as previously registered and used in the Philippines cause
confusion, mistake and deception on the part of the purchasing public as to the
origin of the goods.
On
19 July 1988, the Director of Patents rendered a decision granting private
respondent's petition for cancellation and opposition to registration. The
Director of Patents, using the test of dominancy, declared that petitioner's
trademark was confusingly similar to private respondent's mark because "it
is the word 'Lee' which draws the attention of the buyer and leads him to
conclude that the goods originated from the same manufacturer. It is undeniably
the dominant feature of the mark.
Whether or not a trademark causes confusion
and is likely to deceive the public is a question of fact which is to be
resolved by applying the "test of dominancy", meaning, if the competing
trademark contains the main or essential or dominant features of another by
reason of which confusion and deception are likely to result.
The
word "LEE" is the most prominent and distinctive feature of the
appellant's trademark and all of the appellee's "LEE" trademarks. It
is the mark which draws the attention of the buyer and leads him to conclude
that the goods originated from the same manufacturer. The alleged difference is
too insubstantial to be noticeable. The likelihood of confusion is further made
more probable by the fact that both parties are engaged in the same line of
business.
Although
the Court decided in favor of the respondent, the appellee has sufficiently
established its right to prior use and registration of the trademark "LEE"
in the Philippines and is thus entitled to protection from any infringement
upon the same. The dissenting opinion of Justice Padilla is more acceptable. [3]
This
case raises doubts on the minds of foreign countries on whether or not the
Philippine Law can defend trademarks from local imitators. The decision made only
means that the Philippines is not primed to protect international copyrights
and trademarks.
ASEAN
Intellectual Property Rights Action Plan
The AWGIPC has formulated the following five
strategic goals that will serve as framework for its work in the next five
years. The implementation of the activities and the achievement of deliverables
identified under each of the five strategic goals will be monitored and
regularly evaluated according to measurable performance indicators that will be
agreed among AMSs.
Strategic
Goal 1:
A balanced IP system that takes into account the
varying levels of development of Member
States and differences in institutional capacity of national IP Offices to enable
them to deliver timely, quality, and accessible IP services to promote the region
as being conducive to the needs of users and generators of IP.
This strategic goal focuses on registration,
protection, and enforcement of IPRs and the programmes that will enable the
region to provide simple and user-friendly protection frameworks, and improve
the quality and accessibility of IP services.
Strategic
Goal 2:
Developed national or regional legal and policy
infrastructures that address evolving demands of the IP landscape and AMSs
participate in global IP systems at the appropriate time.
ASEAN has attempted to formulate regional IP
protection mechanisms. But given the diversity of their respective national
laws, the growing demand for international, rather than regional, protection
mechanisms from IP owners and creators worldwide, and the need for region to
participate in global IP systems in order to be more competitive, the AWGIPC
agreed on an alternative to the establishment of a regional IP System that will
enable AMSs to move at their own pace.
Strategic
Goal 3:
The interests of the region are advanced through
systematic promotion for IP creation, awareness, and utilization to ensure that
IP becomes a tool for innovation and development; support for the transfer of
technology to promote access to knowledge; and with considerations for the
preservation and protection of indigenous products and services and the works
of their creative peoples in the region.
Efforts at raising IPR awareness in the region has
remained generally low, although over several years, as a result of national
and regional efforts at increasing IP awareness, the concept of IP has began to
be recognized. This has resulted in more trademark filings by ASEAN nationals
in the region, but patent filings remained low largely because the capacity for
science and technology in the region has not changed much over the last several
years.
Strategic
Goal 4:
Active regional participation in the international
IP community and with closer relationships with dialogue partners and
institutions to develop the capacity of Member States and to address the needs
of stakeholders in the region.
ASEAN needs to continue to participate in discussions
in international fora, such as standing committees in the WIPO, and in bodies
such as the World Trade Organization, in order to maintain not only national,
but more importantly, regional presence and to help ASEAN find its voice in the
international IP community. Espousing a common position on IP issues is increasingly
becoming important in the light of the trend for regional cooperation
programmes and agreements and the need for ASEAN to maximize the benefits, as a
region, from these engagements. Having a single negotiating position is also
important to preserve the needed flexibilities of Member States and to ensure
that ASEAN does not commit to obligations that would pose difficulties for some
Members.
Strategic
Goal 5:
Intensified cooperation among AMSs and increased
level of collaboration among them to enhance human and institutional capacity
of IP Offices in the region.
Undertaking joint activities and intensifying
cooperation, with or without the assistance of partners, will not only result
in the success of ASEAN projects but will also build confidence in the capacity
of AMSs to provide the assistance needed by other AMSs. Reliance on each other
is key if ASEAN is to improve its capacity as a region, but without losing
sight of the need to be part of the global IP system. [4]
The goals herein stated by the ASEAN Intellectual
Property Rights Action Plan for 2011-2015 will definitely help in the makeover
of the regions Intellectual Property Laws. The plan is focused on the
registration, protection and accessibility of the Intellectual Property for
each country; that there should be a standard procedure and mechanism in
dealing with Intellectual Property matters; there must be access for people to aware
and informed with regard to Intellectual Property; that ASEAN must strengthen
its partnership with other countries for a better future in Intellectual
Property; and that there must be activities made between the countries involved
intensifying cooperation and unity.
Anti-Piracy
One of the main problems in our
country today that is affecting the other countries as well is the rising
online piracy in the Philippines. In an article written by Ben Arnold O. de
Vera [6] he said that,
“Two US-based intellectual property (IP) lobby
groups – the International Anti-Counterfeiting Coalition (IACC) and the
International Intellectual Property Alliance (IIPA) — have raised concerns on
the rising online piracy in the Philippines.
Besides online retailers, Quiapo, Greenhills and the
Robinsons Wholesale Market remain piracy hotspots, IACC said, citing
“large-scale trafficking” of counterfeit apparel, eyewear, fashion accessories,
footwear, personal care products as well as industrial chemicals and consumer
electronics in those markets.
“Rights-holders have long cited the inefficiency of
the judiciary as a top concern and a contributing factor to the high cost of
pursuing enforcement in the Philippines. We are aware of the implementation of
special rules for IP proceedings, which are intended to improve the courts’
efficiency, and will be continuing to monitor whether those rules are having
their intended effect,” IACC said.
“Given the breadth of industries affected, and the
widespread availability of counterfeit goods in the retail market, the IACC
recommends the Philippines’ continued inclusion on the Special 301 Watch List
in 2014,” it said.
The USTR’s 2013 Special 301 Report on IPR has
retained the Philippines on the watch list on the back of rising piracy over
the Internet.
“The United States looks to the Philippines to take
important steps to address piracy over the Internet, in particular with respect
to notorious online markets,” last year’s report read.
“It remains important that the Philippine government
work to fully legalize government software use and have procurement practices
in place to pay for software. Republic Act 9184 must be implemented to ensure
Philippine government agencies refrain from purchasing illegal software and
allow only suppliers of legitimate software to participate in government
bidding,” IIPA said, referring to the Government Procurement Reform Act.
Also, mobile device piracy is becoming a “more
serious concern” in the Philippines, as the Optical Media Board (OMB) has no
jurisdiction over such form of counterfeiting while mobile device repair shops
have been increasingly doubling as “piracy portals,” according to IIPA.
“IIPA has noted in previous reports the significant
increase in mobile penetration, and there are now increasing reports of
infringing wireless application protocol (WAP) systems, which provide pirate
content directly through wireless communications onto mobile phones/devices.
“In addition, vendors that sell and supposedly
‘repair’ mobile devices actually offer, either at the time of sale or
afterwards, to download onto devices (including cell phones, tablets, mp3
players, hard disks, thumb/flash/USB drives) all kinds of infringing content,”
it said.
Intellectual Property rights are
essential in world trading today. The problems that we have with pirated goods
have caused a troublesome contention between developing countries and the more
advanced ones. The government of the advanced countries are more focused in the
Intellectual Property Laws of countries like the Philippines, because they want
to protect the rights they have with Intellectual Properties that belongs to
them. Not only that, but the businesses of advanced countries are spending a
lot of money trying to protect and develop products that they create. Businessmen
want to get some profits out of the investment they make in inventing new
products. But, a developing country like the Philippines, invest more in
pirated products because of fear of putting money on improving the Laws that we
have with regard to Intellectual Property.
Conclusion
ASEAN continues to acknowledge the important role
played by IP in social, technological, and economic progress and regional
integration. With this ASEAN IPR Action Plan 2011-2015, the AWGIPC has designed
a unique approach toward regional cooperation which takes into account different
levels of capacity of the Member States in development and integration,
balances access to IP and protection of IPRs, and responds to the current needs
and anticipates future demands of the global IP system. [7]
With the inclusion of ASEAN Integration,
the Philippines will have a tighter and more organized way of facing the
challenges with regard to Intellectual Property. The Intellectual Property
system of the country will now be refined into a better one, and will erase any
doubt on the minds of other countries on whether the Philippines is capable of
deciding IP cases and have standardized regulations.
___________________________
[1]
Intellectual property definition, available at, http://www.wipo.int/export/sites/www/freepublications/en/intproperty/450/wipo_pub_450.pdf,
(last visited 27 May 2014)
[2] Vicente
B. Amador (2007). Philippines Making Headway, available at, http://www.worldtrademarkreview.com/issues/Article.ashx?g=12a5892f-e617-42fb-9524-82d4fbfe865,
(last visited 27 May 2014)
[3] Emerald
Garment Manufacturing Corporation vs Hon. Court of Appeals, G.R. No. 100098, 29
December 1995, available at, http://www.lawphil.net/judjuris/juri1995/dec1995/gr_100098_1995.html,
(last visited 27 May 2014)
[4] ASEAN
Intellectual Property Rights Action Plan 2011-2015, available at, http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf,
(last visited 27 May 2014)
[5] Intellectual
Property Code of the Philippines, available at, http://www.chanrobles.com/legal7intellectualpropertycodeofthephilippines.html#.U4XksfmSwaA,
(last visited 27 May 2014)
[6] de Vera
(2014), available at, http://newsbytes.ph/2014/02/11/2-us-anti-piracy-groups-slam-rising-online-piracy-in-ph/,
(last visited 27 May 2014)
[7] ASEAN
Intellectual Property Rights Action Plan 2011-2015, available at, http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf,
(last visited 27 May 2014)
No comments:
Post a Comment